Lincoln was a man of tact and judgment, who was capable of seeing and confessing a mistake, whose sole object was to do that which, all things being considered, should seem best for the Union.
Johnson, on the contrary, from his natural arbitrariness and narrowness, was a man who held most tenaciously to his views, had little consideration for the views of others, and who was always determined that his own way should be carried out. Under such circumstances it would have been little short of marvelous, had he been able to carry out a policy in itself disliked, without sooner or later coming into collision with those who disapproved his theory.
The provisional governors appointed were not slow incarrying out the provisions of the proclamations, and conventions met in the various states as follows: Mississippi, August 14; Alabama, September 12; South Carolina, September 13; North Carolina, October 2; Georgia, October 25; Florida, October 25; and Texas in March, 1866. In all these conventions the secession ordinances were repealed, annulled or declared null and void,[54]and slavery was declared abolished. All but Mississippi and South Carolina repudiated the rebel debt, and all but Mississippi and Texas ratified the 13th Amendment.
Meanwhile Johnson made liberal use of the pardoning power, and large numbers of the excepted classes were thus restored to all the privileges of citizens of the United States. The reconstruction was very rapid; so rapid, as Johnson himself said, that he could scarcely realize it; “it appears like a dream.”
The extreme similarity of this method of reconstruction to that advocated by the Democracy could not escape attention, and Democrats freely asserted that in his ideas the President was “going over to them.” This, while to a certain extent true, for he was always a Democrat in principle, was vigorously denied by Johnson in an interview with Geo. L. Stearns on October 3, 1865. In it he claimed that the Democratic party, finding its own views untenable, was gradually coming to adopt his principles, which he reasserted in the following form: “The States are in the Union, which is one and indivisible. Individuals tried to carry them out, but did not succeed, as a man may try to cut his throat and be prevented by the bystanders; and you can not say he cut his throat because he tried to do it. * * * Now we want to reconstruct the state governments, and have the power to do it. The state institutions are prostrated,laid out on the ground, and they must be taken up and adapted to the progress of events; this cannot be done in a moment. * * * We must not be in too much of a hurry; it is better to let them reconstruct themselves than to force them to do it; for if they go wrong the power is in our hands, and we can check them in any stage, to the end, and oblige them to correct their errors; we must be patient with them. I did not expect to keep out all who were excluded from the amnesty, or even a large number of them; but I intended they should sue for pardon, and so realize the enormity of the crime they had committed.”
7. Johnson realized that the sentiment in favor of negro suffrage was gaining great power in the North; and while feeling that pure manhood suffrage was undesirable and totally impracticable, because of the danger of thereby creating a “war of races,” which he seemed constantly to fear, he determined to use his influence towards a gradual introduction of the suffrage. He would give the suffrage to negroes who had served in the army, to those who could read and write, and to those owning real estate to the value of two hundred and fifty dollars. He made suggestions of this nature in letters to Governor Starkey of Mississippi, and Governor Hahn of Louisiana.[55]By some such limited suffrage he hoped that the radical element in the North would be satisfied, while there could result no danger to those States in which the negro population predominated.
He had long believed that the apportionment of Representatives should be based on the number of qualified voters; while a member of the legislature of Tennessee he had moved that the apportionment in that State be so made; and in the interview with Mr. Stearns he said: “The apportionment is now fixed until 1872; before that time we might change the basis of representation from population to qualified voters,North as well as South, and, in due course of time, the States,without regardto color, might extend the elective franchise to all who possessed certain mental, moral or such other qualifications as might be determined by an enlightened public judgment.”[56]
But however desirable a limited suffrage might be, he insisted that the only safety for the nation lay in leaving the whole subject to the discretion of the individual State. The only approach which he would make to national interference would be through constitutional amendment. In an interview with Senator Dixon of Connecticut, on January 28, 1866, he suggested that such an amendment might be worded in the following manner:
“Representatives shall be apportioned among the several States which may be included within this Union according to the number of qualified voters in each State.
“Direct taxes shall be apportioned among the several States which may be included within this Union according to the value of all taxable property in each State.”[57]
The great advantage of an amendment of this kind, in President Johnson’s opinion, was that Congress would thus shift all responsibility regarding negro suffrage to the States. Each State would determine the qualifications for voters, and its representation in Congress would depend entirely upon the narrowness or broadness of the suffrage.
In the same interview with Senator Dixon, he described the current contention over negro suffrage as “ill-timed, uncalled for, and calculated to do great harm.”
8. While the President was expressing his belief in qualified representation, and advising the States in process of reconstruction to grant some form of limited suffrage, the States themselves manifested no disposition to follow his advice. While he was describing them in October as lyinghelpless, they were busy framing laws which were aimed to counteract, so far as possible, the force of the emancipation proclamation.
When Georgia declared slavery abolished she did so with the proviso that “acquiescence in the action of the Government of the United States is not intended to operate as a relinquishment, or waiver, or estoppel of such claim for compensation of loss sustained by reason of the emancipation of his slaves, as any citizen of Georgia may hereafter make upon the justice and magnanimity of that Government.”[58]Alabama, South Carolina, and Florida in their ratifications of the 13th Amendment stated their understanding to be that it did not confer upon Congress power to legislate upon the political status of the freedman. The Alabama legislature passed joint resolutions in which it was affirmed: “That Alabama will not voluntarily consent to change the adjustment of political power as fixed by the Constitution of the United States, and to constrain her to do so, in her present prostrate and helpless condition, with no voice in the councils of the nation, would be an unjustifiable breach of faith.”[59]
But most important of all was the legislation of these States respecting the freedman. All were confronted by a host of emancipated blacks, whose legal status had to be determined. The legislatures had before them work of the most delicate nature, inasmuch as it not only vitally affected every person in their own section, but also attracted the keenest interest from the whole North. All realized that Johnson’s policy would here undergo the crucial test. Would the legislators of these States, so soon thrown upon their own responsibility, show due consideration for the new order of things, or would they take advantage of their opportunity and proceed to draw the color line as sharply as ever, discriminating against the negro, and denyinghim privileges which should be allowed him? Had the South proved equal to the situation, the wisdom of Johnson’s policy would have been sustained, and the bitterness characteristic of the 39th and 40th Congresses would have been avoided.
Mississippi was the first to adopt “black laws” obnoxious to the North. Her vagrant act was passed November 24, 1865. This provided that freedmen found with no lawful employment or business, or unlawfully assembling together, should be deemed vagrants, and be fined and imprisoned at the discretion of the court. A poll tax for a freedmen’s pauper fund was to be levied on all freedmen, and should any fail or refuse to pay, he was to be hired out by the sheriff to any one who would pay the tax and costs, preference being given to his former master. Two days later a civil rights act was passed. This allowed freedmen to sue and be sued, implead and be impleaded, and to own personal property, but added the important proviso that the section should not be construed “to allow any freedman, free negro or mulatto to rent or lease any lands or tenements, except in incorporated towns or cities,” where they should be controlled by the corporate authorities. Intermarriage of a white with any freedman, free negro or mulatto, should be punished by imprisonment in the state penitentiary for life. A laborer quitting before expiration of term of service without good cause, forfeited to his employer all wages for that year up to the time of quitting. Any one was authorized to arrest and return a deserting freedman, receiving therefor five dollars reward and mileage, all costs to be paid from the wages of the deserter. Any one persuading or attempting to persuade any freedman to desert his employer before his term of service expired, was guilty of a misdemeanor, and liable to a fine of not less than twenty-five and not more than two hundred dollars, and if the offender attempted to persuadethe freedman to desert, with a view of employing him without the limits of the State, the fine was to be not less than fifty nor more than five hundred dollars. While it was made lawful for a freedman to charge a white man with a criminal offence against his person or property, and to make all needful affidavits, a supplementary act passed December 2 provided that where sufficient proof was made before a court or jury that the arrest and trial had been falsely or maliciously caused, the freedman should be fined, and charged with all costs, and on failure to pay should be hired out at public outcry for the shortest time necessary to discharge the debt. An act passed November 29, among other restrictions, forbade freedmen to carry any fire arms, ammunition, dirk or bowie knife, under penalty, and declared that a freedman exercising the functions of a minister of the gospel, without a license from some regularly organized church, should be guilty of a misdemeanor, and become liable to an imprisonment not exceeding thirty days and to a fine not exceeding one hundred dollars.
Similar laws were enacted in the other States, varying slightly in severity of punishment. The labor contract act of Louisiana, passed in December, is of especial interest as an evidence of the systematic way in which the Southern legislators hoped to mould the unwieldy mass of freedmen into a docile set of serfs. All agricultural laborers were required by this act to make their contract for the ensuing year before the tenth day of January; said contract to embrace the labor of the whole family. After the contract had been agreed to, no laborer was to be allowed to “leave his place of employment until the fulfillment of his contract, unless by consent of his employer, or on account of harsh treatment, or breach of contract on the part of employer,” under penalty of forfeiture of all wages to the time of leaving. “Failing to obey reasonable orders, neglect of duty, andleaving home without permission, will be deemed disobedience; impudence, swearing, or indecent language to or in the presence of the employer, his family or agent, or quarreling or fighting with one another, shall be deemed disobedience. For any disobedience a fine of one dollar shall be imposed upon the offender. For all lost time from work hours, unless in case of sickness, the laborer shall be fined twenty-five cents per hour. For all absence from home without leave the laborer will be fined at the rate of two dollars per day.”[60]
The cruelty and injustice possible in the administration of these acts is even greater than their casual perusal would indicate. Many of these acts, nominally applying to both races with equal severity, were in reality intended to apply solely to the negro. The vagrants always proved to be colored. The acts purporting to secure the protection of the freedmen were cunningly hedged in by limitations which made them worthless. The employer was made the sole judge of the acts of his employees—a privilege which could not but be flagrantly abused. Laws that made it almost impossible for the freedman to secure the just return for his labor, were followed by laws punishing him for his poverty. The fines for his so-called offences were excessively severe, and the punishments were almost always such as to reduce him to slavery for limited terms. The whole system, taken advantage of as it could not fail to be where the dominant classes were almost unanimously desirous to retain the negro in subjection, resulted in his practical slavery during those seasons of the year in which his labor was most needed, and in utter neglect and lack of support when his labor was not in demand.
9. Although the enactment of these stringent laws at this time was a political mistake, and was fraught with mostserious consequences for the South, it is proper to notice what was said in their justification. Many of them did not differ materially from similar statutes in the Northern States. Even some of the harshest laws, those which were received with wide-spread indignation throughout the North, could almost be duplicated by laws at that time in force in such States as Rhode Island and Connecticut. Even the phraseology, the using of the words master, mistress and servant, which was deemed objectionable and suggestive by Northern Republicans, could be found in Northern statutes.
The South felt confident that the negro was unable actively to assume the duties of citizenship. The Southern people feared, and with reason, that the immense mass of undeveloped humanity was liable to become turbulent and unmanageable, unless stringent laws could be framed which would hold it in check.[61]They were sincere in their statements that they believed that the interests of property, peace and good order demanded these laws. Unfortunately, the humanitarian ideas of the North harmonized too well with the political ideas of Congress. The enactment of the laws against the negro seemed to strike at the one and make possible the success of the other. The radical majority were quick to see their advantage, and did not hesitate to make the most of the opportunity. They assumed that the South deliberately intended to defy Northern sentiment, and ignored the possibility that the legislation in question was sincerely believed to be a necessary act of self-defense.
10. To Stevens and his followers the South had proved its impenitent condition, and had justified the most stringent measures of reconstruction. They declared that Johnson’s policy had been fairly tested and that the results of the experiment were apparent. They argued that the South,emboldened by the conciliatory conduct of the President, was permitting the old rebel leaders to continue to wield the chief influence in affairs of state. The exclusion of these leaders from participation in the preliminary work of the reconstruction conventions was no check upon their influence in the State, and with the completion ofreconstructionthere was nothing to prevent them from occupying the chief state offices. What the President in the previous April had feared, was coming to pass, through his failure to do that which he had then said must be done—to make treason and traitors odious. In proof of the ascendency of the old elements, the highly questionable legislation of the South was cited, and the conviction of the Republican party that sterner measures were necessary was strengthened. As a natural result the doctrine of Thaddeus Stevens that the South should be regarded and governed as a conquered territory became practically the doctrine of the majority of Republicans, and Stevens became the leader of the House of Representatives. The year 1865 had made plain the necessities of the hour, the condition of the South, the attitude of the President, and in short had prepared the people for the great struggle which was to follow in the 39th and 40th Congresses.[62]
1. The Thirty-ninth Congress began its labors on December 4, 1865, well aware that the President had separated himself from the Republican party so far that it was improbable that the executive and legislative departments would be able to work in harmony. The Democrats were beginning to commend the administration, and had even gone so far in some instances as to indicate, in resolutions passed in their state conventions, their approval of Johnson’s plan of reconstruction. Republicans, on the other hand, were becoming quite reserved in their expressions of approval, and began to show a decided sentiment in favor of manhood suffrage as involving less danger and more benefit to the Republic than any plan which even partially excluded the negro from the franchise. The legislation of the Southern States had convinced many that without the negro vote there would be no way to keep the old insurrectionary element from completely monopolizing their state governments.[63]
Congress with its large Republican majorities[64]in bothhouses was expected to deal with the problem, correct the abuses which had arisen from the too lenient policy of the President, and inaugurate a policy which should bring about an equality of individual rights throughout the Union.
2. The calling of the roll by the clerk of the House, Edward McPherson, marked the commencement of active opposition to the presidential policy. All of the late insurrectionary States excepting Texas, whose convention did not meet until the following March, had elected senators and representatives. Their action in choosingforthese and other high official positions members of the Confederate Congress, and civil and military officers of the Confederacy, was very unwise and did much to strengthen opposition to the recognition of these States.[65]
Louisiana, Arkansas and Tennessee, having been recognized by Lincoln as reconstructed, stood upon a somewhat different footing from the others, but in a caucus of the Republican members of the House, held previous to the organization of Congress, it had been decided to omit the names of their representatives from the rolls so as to reduce all to a common level, that no embarrassing distinctions might exist to hamper Congress in the adoption of whatever policy it chose.
In accordance with the instructions of the caucus, the clerk refused to call the names of these representatives elect. A lively discussion immediately arose, in which emphatic protest was made against forcing in this way a policy upon the House at a time when due deliberation could not be had. It was boldly asserted[66]that the clerk was acting merely as the tool of the Republican party, and the claim was also made that the resolutions about to be introduced by Mr. Stevens of Pennsylvania were another part of the general plan to commit the House to a quasi-condemnation of the President, and virtually nullify in advance the recommendations which it was supposed he would make. But protest was useless; the names were not placed on the rolls, and the first roll-call gave evidence that active resistance to the President was determined upon.
The Senate was almost equally prompt in making public its determination to take the process of reconstruction out of the hands of the President. It is the custom in Congress to refrain from the consideration of questions of public importance until the President’s message has been received. At the opening of this Congress no such courtesy was observed. Among the very first proceedings of the Senate after its organization was the introduction of threeseries of resolutions by Sumner.[67]The first series was in reference to the Thirteenth Amendment, declaring it to have become a part of the Constitution without reference to the action of the late so-called Confederate States. Such States, the resolutions affirmed, should be required to ratify the Amendment as one of the conditions precedent to restoration. The second series related to the guarantees which should be required of the States prior to resuming their relations to the Union. These guarantees were five in number. First: “The complete re-establishment of loyalty, as shown by an honest recognition of the unity of the Republic, and the duty of allegiance to it at all times, without mental reservation or equivocation of any kind.” Second: “The complete suppression of all oligarchical pretensions, and the complete enfranchisement of all citizens;” impartial justice, and equality before the law. Third: The repudiation of the rebel debt and the assumption of the proper proportion of the national debts and obligations. Fourth: “The organization of an educational system for the equal benefit of all, without distinction of color or race.” Fifth: “The choice of citizens for office, whether State or National, of constant and undoubted loyalty, whose conduct and conversation shall give assurances of peace and reconciliation.” The third series was declaratory of the duty of Congress to the loyal citizens in the rebel States. They, especially those who had served in the Union army and those excluded from the ballot at the time of secession, should have control of the conventions to be called for reorganizing the state governments. “No state law or state constitution can be set up as an impediment to the national power” in the reorganization of these States. No State recently in rebellion could be considered to have a republican form of government“where the elective franchise and civil rights are denied to the Union soldier, his relatives, or the colored race.”
The submission of these resolutions was of significance merely as a formal declaration that the President was to be ignored and an independent policy formed. The plan of reconstruction, as here presented, embodied many impracticabilities and impossibilities, but it indicated in broad outlines the propositions to be discussed in the succeeding months.
The House was still more active in its initiatory steps toward a policy. The resolution for the establishment of ajoint committeeon reconstruction was introduced by Mr. Stevens at the first opportunity on the opening day, and immediately adopted. This resolution, after having been discussed in a Republican caucus,[68]was taken up for consideration in the Senate on December 12,[69]was made a concurrent resolution, that it might not need the approval of the President, and was passed with amendments. The debate on this resolution is of especial importance as the first formal test of the attitude of the individual Senators towards the administration. It brought out the fact that Senators Cowan of Pennsylvania, Dixon of Connecticut, and Doolittle of Wisconsin, would support the administration and oppose the congressional policy. Senator Norton, of Minnesota, soon joined their ranks, and Senator Lane[70]of Kansas, broke from the party on the Civil Rights bill. The remaining Republican senators, while exhibiting natural differences of opinion, were united in their hostility to the existing method of restoration.
The resolution, as amended and concurred in by the House, provided for a joint committee of fifteen, nine from the House and six from the Senate, “who shall inquire into the condition of the States which formed the so-called Confederate States of America, and report whether they or any of them are entitled to be represented in either House of Congress, with leave to report at any time by bill or otherwise.”[71]
The appointment of this committee, with Thaddeus Stevens as a member, although Senator Fessenden of Maine was chairman, marks an important epoch in the history of reconstruction.[72]Stevens, now the virtual leader of the House, represented a policy to which Johnson was thoroughly antagonistic, and from this time forth everything relating to the reconstruction of the Southern States was to be referred to this committee. In addition, the committee took large masses of testimony from southerners, federal officers, and northerners travelling through the Southern States, in order that an intelligent judgment might be reached regarding the actual condition of these States. The bills in which they embodied the results of their investigations constituted the basis of the final reconstruction. The ill-definedsentiment of the Republicans, that the proper mode of dealing with the Southern States had not been found, was to be replaced by a vigorous policy which looked primarily to the proper protection of the freedman.
3. The message of the President, which was read on the 5th of December, had been eagerly awaited.[73]It had been expected that it would contain a decided statement of his exact views on reconstruction, and expectations were fulfilled. It was a clearly written document, and outlined in extreme simplicity his attitude. In it he says, referring to the rebel States: “Whether the territory within the limits of those States should be held as conquered territory, under military authority emanating from the President as the head of the army, was the first question that presented itself for decision.” His unhesitating answer to this question was that military rule was extremely undesirable, especially from the greatly increased powers which thereby would be held by the President. “The powers of patronage and rule * * * I could never, unless on occasions of great emergency, consent to exercise. * * * Besides, the policy of military rule over a conquered territory would have implied that the States whose inhabitants may have taken part in the rebellion, had, by the act of those inhabitants, ceased to exist. But the true theory is, that all pretended acts of secession were, from the beginning, null, and void. The States cannot commit treason, nor screen the individual citizens who may have committed treason, any more than they can make valid treaties or engage in lawful commerce with any foreign power. The States attempting to secede placed themselves in a condition where their vitality was impaired, but not extinguished—their functions suspended, but not destroyed.” These sentiments were but the repetition, in almost the same language, of sentiments previously expressed in variousinterviews and speeches. The significance of the message was merely his recommitment to the policy he was applying in practice. But the consideration of the message in committee of the whole afforded a good opportunity for general discussions of reconstruction, which were continued at intervals throughout the whole session.
The great debate was opened on December 18 by Mr. Stevens, who reasserted his views, declaring that Congress has the sole power to receive back the States, the Executive concurring.[74]The States as States made war. “The idea that the States could not and did not make war because the Constitution forbids it, and that this must be treated as a war of individuals, is a very injurious fallacy. Individuals cannot make war. They may commit murder, but that is not war. Communities, societies, states, make war.” He earnestly pleaded for negro suffrage both on grounds of expediency and of right, closing his speech with the oft-quoted sentence: “Sir, this doctrine of a white man’s government is as atrocious as the infamous sentiment that damned the late Chief Justice to everlasting fame, and I fear, to everlasting fire.”[75]Mr. Beaman, on February 24, after dwelling upon the horrors of the late war, said: “Those were sad, dark days, whose tinge was deepened by the frowns and hostile intrigues of foreign nations. But sadder still, and darker and more gloomy, will be that day in which the rebel States shall assume the control of our national government; when without guards or security for future good conduct, without protection to the blacks and loyal whites who have freely shed their blood in our defense, the seceded districts shall be declaredreconstructed and restored States, and again launched upon their career of oppression, tyranny and crime.”[76]
On March 10, Mr. Stevens made a speech upholding the right of the federal government to treat the conquered States in whatever manner was deemed advisable. “I trust yet to see our confiscation laws fully executed; and then the malefactors will learn that what Congress has seized as enemy’s property and invested in the United States, cannot be divested and returned to the conquered belligerent by the mere voice of the Executive. I hope to see the property of the subdued enemy pay the damages done to loyal men, North and South, and help to support the helpless, armless, mutilated soldiers who have been made wretched by this unholy war. I do not believe the action of the President is worth a farthing in releasing the property conquered from the enemy, from the appropriation made of it by Congress.”[76]
Other speeches just as violent, condemning Johnson and his policy, were made during these general discussions. Thus Mr. Dumont of Indiana said: “Some gentlemen seem to be anxious to hear within this Hall the crack of the plantation whip, and to have a manifestation of plantation manners as in days of other years; and as sure as God lives they will be abundantly gratified, if the policy of letting in the rebel States without guaranties shall prevail.”[77]And Mr. Moulton, ofIllinois, a week later declared that “Andy Johnson will go down to posterity, not only as the betrayer of his party, but as an ingrate, infamous in all time to come to all honorable men.”[78]In the same speech he says: “No rights of the South that were lost by the rebellion were revived or repossessed by traitors on the cessation of hostilities. War destroys all rights but the rights of war.”[79]Mr. Baldwin, of Massachusetts, described the attitude of the Southern States as follows: “It is undeniably the aim of the old pro-slavery spirit to reduce them [the freedmen] to a condition as nearly like that of slavery as circumstances will admit; a condition that would yield all the advantages of slavery without any of its incumbrances. The hatred which has declared the freedom of these people a calamity conspires diligently to make it so; the government is angrily forbidden to interfere with its operations; and if there be an epithet of contumely and reproach that has not been hurled at those who would allow these people the protection they need, it must be some blackguard epithet not yet invented.”[81]
But the policy of the President was not without its vigorous supporters, although they generally were found among the Democrats. Thus Voorhees, on January 9, eulogizedJohnson’s policy as having “cleared away the wreck of a gigantic fraternal war, laid anew the foundation of government throughout an extent of country more vast than the most powerful kingdoms of Europe, revived confidence and hopes in the breasts of a despairing people, and won for its author the respect and admiration of the civilized nations of both hemispheres.”[82]He also introduced a series of resolutions endorsing the policy of the President, and expressing confidence in him;[83]but these, together with an amendment by Bingham, expressing confidence that the President would co-operate with Congress, were referred to the Committee on Reconstruction, from which they were never reported.
Mr. Thornton, of Illinois, thought that “if those States are ever to be bound together in an equal and enduring union by us, we must rise to the high dignity of true manhood and Christian charity, and bury forever the feelings of distrust which now haunt the mind. The charge is constantly made that the Southern people are perfidious; that they will keep no pledges; that no oath will bind them. Can they accept your conditions precedent tendered in such a spirit? Never!”[84]Mr. Harding, of Kentucky, declared that the Republican party “with the cry of liberty on its tongue, is earnestly striving to subvert the foundations of republican government, laboring to centralize, consolidate and build up a frightful Federal despotism, under whose dark and deadly shadow self-government and all state rights would utterly sink and perish.”[85]
4. The objectionable “black laws” of the Southern States, and the many tales of the oppression and cruel treatment of negroes, brought about a strong sentiment infavor of legislation by Congress giving additional protection to the freedman.[86]The Act of March 3, 1865, had established in the War Department a “Bureau for the relief of Freedmen and Refugees,” which was “to continue during the present war of rebellion, and for one year thereafter.”[87]This bureau was to assume control of all abandoned or confiscated lands in the insurrectionary States, and to assign tracts not to exceed forty acres each to freedmen and refugees at an annual rent of not more than six per cent. of the value. The occupants were to be allowed to purchase the land at any time within three years. The bureau was also authorized to supervise all matters that might concern freedmen and refugees from any of the rebel States or from districts occupied by the army, and to furnish supplies to such as were in need.
To extend the powers of this bureau and to continue it in operation until affairs had resumed their normal course, appeared to be a practicable way to protect the emancipated race. A bill to this effect was introduced in the Senate by Mr. Trumbull on January 5, 1866,[88]and the Senate proceededto its consideration on the 12th. With certain amendments the bill passed the Senate on the 25th by a vote of 37 to 10. The Select Committee on Freedmen[89]to which the Senate bill had been referred by the House, reported on January 30 a substitute bill. This passed the House on the 6th of February by a vote of 136 to 33; it was amended by the Senate on the 7th, the House concurring on the 9th. It was vetoed by the President on the 10th, and the Senate on the 10th attempted to pass the bill over the veto. The result showed 30 votes in favor, 19 against, less than a two-thirds majority, and the bill thusfailedto become a law.[90]
The bill as presented to the President for his signature was entitled “An Act to amend an act entitled ‘An act to establish a Bureau for the relief of Freedmen and Refugees,’ and for other purposes.”[91]It continued in force the act of March 3, 1865, and extended the jurisdiction of the bureau to freedmen and refugees in all parts of the United States. The President was authorized to “divide the section of country containing such refugees and freedmen into districts, each containing one or more States, not to exceed twelve in number, and, by and with the consent of the Senate, appoint an assistant commissioner for each of said districts;” or in the discretion of the President “the bureau might be placed undera commissioner and assistant commissioner to be detailed from the army.” Districts when necessary were divided into sub districts under agents. Military jurisdiction and protection were to extend over all connected with the bureau. Unoccupied public lands in the Southern States, not to exceed three million acres, were to be set apart for freedmen. Military protection was to be extended over all persons denied civil rights on account of race, color or previous servitude, and punishment was provided for those who deprived such parties of their civil rights.
The debates on this bill, occurring as they did before the President’s speech of February 22, which will hereafter be noticed, lacked the great bitterness which was frequently manifested in the later days of the session. The fact that the veto message was received before the 22d accounts for the failure of the attempt to override it.[92]
The bill itself was moderate, the freedmen obviously needed the legislation, but the President considered the principles at stake of sufficient importance to justify him in further antagonizing Congress. His veto message cited a number of reasons for withholding the executive approval.[93]In the first place he claimed that there was no immediate necessity for the measure. Then it also contained provisions which were unconstitutional and unsuited to accomplish the desired end. His chief objection, of course, was based upon the continuance of military jurisdiction into a time of peace. This he declared clearly unconstitutional, a violation of the right ofhabeas corpusand of trial by jury; and he added that “for the sake of a more vigorousinterposition in behalf of justice we are to take the risks of the many acts of injustice that would necessarily follow from an almost countless number of agents, * * * over whose decisions there is to be no supervision or control by the federal courts. * * * The country has returned or is returning to a state of peace and industry, and the rebellion is in fact at an end. The measure, therefore, seems to be as inconsistent with the actual conditions of the country as it is at variance with the Constitution of the United States.” He considered the provisions which proposed to take away land from its former owners without due process of law, unconstitutional. Other more general objections were mentioned, such as the immense patronage created and immense expense involved, the dangerous concentration of power in the Executive, and the ethical objection that legislation which implies that the freedmen “are not expected to attain a self-sustaining condition must have a tendency injurious alike to their character and their prospects.”[94]
The unification of opposition to the President, which was accomplished through his speech of February 22, afterwards impelled the friends of the Freedmen’s Bureau bill to make another attempt to secure its passage, believing that it then could be passed over the President’s veto.[95]The ball was again set rolling by Mr. Eliot, of Massachusetts, who on May 22 introduced a bill designed to take the place of the defeated bill, yet different enough to afford a plausible pretext for again bringing the question forward. Slightly amended, it passed the House on May 29 by a vote of 96 to 32. The bill, with amendments, reported from the Committee on Military Affairs, of which Senator Wilson, of Massachusetts,was chairman, was taken up for consideration by the Senate on June 26, and passed. The House non-concurring, a committee of conference was appointed, which made some minor changes, to which the Senate on July 2, and the House on July 3, agreed. A veto message of the President was received on July 16, and the bill was passed over the veto on the same day.[96]
To all intents and purposes this act differed but little from the first vetoed bill. It continued the original Freedmen’s Bureau Act in force for two years, and contained certain additional provisions for the education of the freedmen, for the recognition of their civil rights, and for the protection of such rights by military power.
President Johnson, in his veto message, declared that a careful examination had convinced him that the same reasons assigned in his veto of February 19, applied also to this measure. Such legislation was justifiable only under the war power, and should not extend to times of peace. The now existing federal and state courts, he went on to say, were amply sufficient for the protection of the freedmen, and the existence of the prevalent disorders furnished no necessity for the extension of the bureau system. The practical operation of the bureau showed that it was becoming an instrument of fraud, corruption and oppression, while the civil rights bill, needless as it was, provided methods of protection far preferable to the military protection authorized by this bill. The legislation regarding the disposal of land was discriminating, unsafe, and unconstitutional, and in conclusion he urged upon Congress the dangers of class legislation.
5. The mere veto of the first Freedmen’s Bureau bill would not have been of great significance had it been the only act of the President at this time offensive to the rank and file of the Republican party. But on two other occasions he acted very indiscreetly, February 7 and February 22, the latter coming so shortly after the veto message on the first bill that the antagonism of Congress was greatly intensified.
On February 7, 1866, a delegation of colored representatives from fifteen States and the District of Columbia called upon President Johnson in order to present their wishes concerning the granting of suffrage to their race. Geo. T. Downing and Frederick Douglass acted as spokesmen. In reply, President Johnson described his sacrifices for the colored man, and went on to express his indignation at being arraigned by incompetent persons. Although he was willing to be the colored man’s Moses, he was not willing “to adopt a policy which he believed would only result in the sacrifice of his [the colored man’s] life and the shedding of his blood.” The war was not waged for the suppression of slavery; “the abolition of slavery has come as an incident to the suppression of a great rebellion—as an incident, and as an incident we should give it the proper direction.” He went on to state that the negro was unprepared for the ballot, and that there was a danger of a race war. The States must decide for themselves on the question of the franchise. “Each community is better prepared to determine the depository of its political power than anybody else, and it is for the legislature * * * to say who shall vote, and not for the Congress of the United States.”[97]
This plain statement of his opposition to negro suffrage greatly added to Johnson’s unpopularity. This was not due to the fact that his views on that subject had not been madepublic before, for he never had tried to conceal his attitude towards any of the questions before the people. But the attitude of the people themselves had greatly changed since the ill treatment of the freedmen and the objectionable legislation of the Southern States had been placed vividly before the public through the newspapers. The sentiment in favor of the extension of the franchise had rapidly gained strength; and the attitude of the President, made conspicuous anew by his almost harsh reply to so prominent a delegation representing such a wide extent of territory, called forth much hostile criticism, which, added to the vigorous letter published by the delegation in reply to the President, aided in unifying the opposition to him.
On February 22 he made a speech in which he not only attacked by name certain leading politicians, but also criticised in terms the legislative branch of the government. This speech marks a distinct epoch in the history of the struggle between the President and Congress. Prior to it, the latter, although conscious of the rapid divergence of the paths each was following, and determined to render as nugatory as possible the President’s policy, had not permitted the feeling of personal antagonism to influence its actions to any great extent. But from this time forth the lines were sharply drawn, culminating in the impeachment. Johnson bitterly hated the Joint Committee on Reconstruction. The very manner in which it had been authorized—through a concurrent resolution instead of a joint resolution for the purpose of preventing executive action—had embittered him; the principles which its majority represented and thepersonnelof the committee were equally distasteful to him.
In connection with the speech of February 22, it should be noticed that Mr. Stevens had two days before introduced a concurrent resolution, which passed the House, providingthat no senators or representatives were to be admitted until Congress should declare the State entitled to representation. Such a provision, the practical effect of which would be to place the subject in the exclusive control of the Joint Committee on Reconstruction, Congress, as we have seen, struck out of the resolution authorizing that committee’s appointment.[98]The President had good reason to believe that Mr. Stevens’ resolution would pass the Senate, as it did on the 2d of March, and he looked upon it as one more step in the usurpation of power by an “irresponsible directory.” Sensitive to all tendencies towards centralization, he saw in the power granted to the committee, and the measures proposed by it, a tendency towards the conditions against which he had spoken on April 21, 1865, when he said: “While I have opposed dissolution and disintegration on the one hand, on the other I am equally opposed to consolidation, or the centralization of power in the hands of a few.”
Public sentiment in Washington was very hostile to the Freedmen’s Bureau, and on February 22 a mass-meeting was held to express popular approval of the action of the President in vetoing the bill. Adjourning to the White House, the crowd congratulated Johnson with tumultuous enthusiasm. A man more cautious would have limited his reply to a temperate expression of his views; but Johnson, ever eager to pose as the leader of the people, was led by the enthusiasm of the moment to abandon himself entirely to his prejudices, aggravated as they were by the circumstances above mentioned. Thus, on the anniversary of Washington’s birthday, a day when he should have particularly refrained frompartisan politics, he took occasion to assail the committee violently, declaring that the end of one rebellion was witnessing the beginning of a new rebellion; saying that “there is an attempt now to concentrate all power in the hands of a few at the federal head, and thereby bring about a consolidation of the Republic, which is equally objectionable with its dissolution. * * * The substance of your government may be taken away, while there is held out to you the form and the shadow.” He described the Joint Committee as an “irresponsible central directory,” which had assumed “nearly all the powers of Congress,” without “even consulting the legislative and executive departments of the Government. * * * Suppose I should name to you those whom I look upon as being opposed to the fundamental principles of this Government, and as laboring to destroy them. I say Thaddeus Stevens, of Pennsylvania; I say Charles Sumner, of Massachusetts; I say Wendell Phillips, of Massachusetts.”[99]
6. After the President had thus publicly stigmatized the opponents of his policy as instigators of a new rebellion, and classed Stevens, Sumner and Wendell Phillips as traitors to be compared with Davis, there could be no hope of reconciliation, and the Republican party grimly settled down to fight for its principles. The first important measure to take effect was the civil rights bill.[100]
On the first day of the session Senator Wilson, of Massachusetts, had introduced a bill looking to the personal protection of the freedmen. It was aimed directly at the “black laws” of the Southern States, and declared all laws, statutes, acts, etc., of any description whatsoever, which caused any inequality of civil rights, in consequence of race or color, to be void. In his speech of December 13, 1865, explaining hisreasons for introducing the bill, Wilson said that, while honest differences as to the expediency of negro suffrage might exist, he could not comprehend “how any humane, just and Christian man can, for a moment, permit the laws that are on the statute-books of the States in rebellion, and the laws that are now pending before their legislatures, to be executed upon men whom we have declared to be free. * * * To turn these freedmen over to the tender mercies of men who hate them for their fidelity to the country is a crime that will bring the judgment of heaven upon us.”[101]
This bill and a similar bill introduced by the same senator on December 21, and one introduced by Senator Sumner on the first day of the session, never came to a vote, the last two being postponed indefinitely by the Senate. In place of these bills, Senator Trumbull of Illinois, chairman of the Committee on the Judiciary, on January 5, 1866, introduced a bill which, slightly amended, became a law. This measure passed the Senate on February 2, was amended and passed by the House on March 13, and the amendments were concurred in by the Senate on the 15th. It was returned to the Senate by the President, without his approval, March 27, and on April 6 the Senate passed the bill over the veto of the President by a vote of 33 to 15. Three days later the House passed the bill by a vote of 122 to 41, and the measure became a law.
As passed it was entitled, “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication.” It first declared “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” to be citizens of the United States. Such citizens, without regard to race, color, or previous servitude, were declared to have the same rights in all the States and Territories, as white citizens, to makeand enforce contracts; to “sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property;” to enjoy the equal benefit of all laws for the security of person and property, and to be subject only to the same punishments. The second section provided penalties for the deprivation of equal rights. The third gave to the United States courts exclusive cognizance of all causes involving the denial of the rights secured by the first section. The remaining sections specified the powers and duties of the district attorneys, marshals, deputy marshals and special commissioners, in connection with the enforcement of the act, the ninth section providing: “It shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of the Act.”[102]
From this summary of the act its nature can be seen plainly. Up to this time there had been no legislation affecting thestatusof the freedman. This declared him to be a citizen of the United States, and thereby entitled to all the privileges of citizenship. The war having resulted in the anomalous condition of the several millions of freedmen, some such legislation was necessary, especially in view of the fact that discriminative legislation was being enacted in the South. The bill was moderate in its terms, the most questionable portion being the section empowering the President to enforce the act through the war department, but even that in the then unsettled condition of the country had much to justify it.
The President’s veto message was a lengthy document and discussed in detail the significance of the bill.[103]Hequestioned the policy of conferring citizenship on four million blacks while eleven of the States were unrepresented in Congress. He doubted whether the negroes possessed the qualifications for citizenship, and thought that their proper protection did not require that they be made citizens, as civil rights were secured to them as they were, while the bill discriminated against the intelligent foreigner. Naturally, he also declared that the securing by federal law of equality of the races was an infringement upon state jurisdiction. “Hitherto, every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States.” The second section he thought to be of doubtful constitutionality and unnecessary, “as adequate judicial remedies could be adopted to secure the desired end, without invading the immunities of legislators, * * * without assailing the independence of the judiciary, * * * and without impairing the efficiency of ministerial officers. * * * The legislative department of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer bound to decide according to the will of Congress.” The third section he characterized as undoubtedly comprehending cases and authorizing the “exercise of powers that are not by the Constitution within the jurisdiction of the courts of the United States.” He also considered the extraordinary powers of the numerous officials created by the act as jeopardizing the liberties of the people, and the provisions in regard to fees as liable to bring about persecution and fraud.
In addition to these objections he argued that the bill frustrated the natural adjustment between capital and laborin a way potent to cause discord. It was “an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers, and break down the barriers which preserve the rights of the States. * * * The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace.”
The next clash between the executive and legislative branches of the government was over the Colorado bill.[104]This bill provided for the admission of Colorado into the Union, and was passed May 3, being vetoed by the President on May 15, in accordance with the policy which he was endeavoring to carry out.[105]The nominal grounds, while strong in themselves, had less weight in Johnson’s mind than the argument reserved for the final sentence of the message. This referred to the fact that eleven of the old States were unrepresented in Congress, and that it was in the “common interest of all the States, as well those represented as those unrepresented, that the integrity and harmony of the Union should be restored as completely as possible, so that all those who are expected to bear the burdens of the Federal Government shall be consulted concerning the admission of new States; and that in the mean time no new State shall be prematurely and unnecessarily admitted to a participation in the political power which the Federal Government wields.” A second bill for the admission of Colorado was vetoed on January 29, 1867.[106]In the message PresidentJohnson stated that he could change none of his opinions expressed in the first veto, while he now saw many additional objections. Neither bill was passed over the veto.
Another measure of like nature was the Nebraska bill, which was passed on July 27, the last day but one of the session. The President “pocketed” it. Both bills were again introduced at the beginning of the second session by Senator Wade, and the Nebraska bill was duly passed. It was vetoed January 30, 1867, but within ten days was passed over the veto by both houses, Nebraska being able to present stronger arguments for receiving statehood than Colorado, and consequently obtaining more support from the conservative members of the Republican party. The principal objection expressed in the veto message was the incongruities existing in the bill, the first section admitting the State “upon an equal footing with the original States in all respects whatsoever,” and the third section providing that “there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, except Indians not taxed.” This assertion of the right of Congress to regulate the elective franchise the President declared clearly unconstitutional, incompatible with an equal footing with the original States.[107]
7. The central event, naturally, of the first session of the 39th Congress was the report of the Joint Committee on Reconstruction. Although during the session there was a great amount of discussion as to the theory and method of reconstruction, and, as has been shown, two important measures were passed over the President’s veto, the majority in the House still felt uncommitted as to the policy they should favor, excepting so far as the measures already reported from the committee had given shape totheir plans. A definite platform had not been erected on which they could stand, and they were not certain of the foundations on which to base constructive legislation. It was quite evident from the resolutions and bills reported from the committee to Congress, that the testimony taken before it had not changed the views of the majority of the committee, and the general tenor of the report was not a surprise to any one. Its constitutional importance cannot be questioned, since the Republican party adopted its construction of the Constitution, and proceeded to frame, on the lines marked out by the report, the bills which changed decidedly the relations between the States and the Federal Government, affording precedents for an extension of federal power which previous to the close of the war few could have been found to support.[108]
No theory as to thestatusof the Southern States was agreed on by the committee.[109]Among those signing the majority report several distinct views can be noted. The theory of Thaddeus Stevens, that the States were now merely conquered territory, at the mercy of the conqueror, has already been noticed. Mr. Boutwell, of Massachusetts, was one of those who theoretically differed from Mr. Stevens, preferring to consider the States as “dead States” within the Union. Mr. Bingham, of Ohio, was still less radical, simply calling them “disorganized States.” But realizing the futility of introducing distinctions which could not affect the main question at issue, the majority dropped “the profitless abstraction,” and agreed upon the general conclusionsand recommendations. The report was finally presented to Congress on June 18, all the members signing excepting Johnson, Rogers and Grider, who submitted a minority report four days later.
The first portion of the report is a general review of the steps which had already been taken by the President, and of the powers of the executive and legislative departments. It was declared that at the close of the war the Confederate States were in a condition of utter exhaustion and complete anarchy. Congress having failed to provide for the contingency, the President had no power except to execute the national laws and establish “such a system of government as might be provided for by existing national statutes.” These States “by withdrawing their representatives in Congress, by renouncing the privilege of representation, by organizing a separate government, and by levying war against the United States, destroyed their State constitutions in respect to the vital principle which connected their respective States with the Union and secured their federal relations; and nothing of these constitutions was left of which the United States were bound to take notice.” The President had two alternatives: either to “assemble Congress and submit the whole matter to the law-making power,” or to continue military supervision in his capacity as commander-in-chief of the army, until the regular assembling. Choosing the latter course, he appointed over the revolted States provisional governors who possessed military authority, but who “had no power to organize civil governments nor to exercise any authority except that which inhered in their own persons under their commissions.” The President in his military capacity might properly permit the people to form local governments, execute local laws not inconsistent with national laws, and even withdraw military forces altogether if he deemed it safe. But to Congress,not to the President, belonged the power “to decide upon the nature or effect of any system of government which the people of these States might see fit to adopt,” and to fix terms by which the States might be restored to all their rights and privileges as States of the Union. “The loss of representation by the people of the insurrectionary States was their own voluntary choice. They might abandon their privileges, but they could not escape their obligations,” and they could not complain.
None of the revolted States, the report continued, excepting perhaps Tennessee, were in a condition to resume their former political relations. Their so-called “amended constitutions” had never been submitted to the people for adoption, and when they were thus submitted there was nothing to prevent their repudiation. If these States were without state governments, they should be regularly organized, but in no case had the proper preliminary steps been taken. The conventions assumed that the old constitutions were still in force, and that only such amendments as the federal government required, were needed. “In no instance was regard paid to any other consideration than obtaining immediate admission to Congress, under the barren form of an election in which no precautions were taken to secure regularity of proceedings or the consent of the people.” Before they were restored to their full rights “they should exhibit in their acts something more than unwilling submission to an unavoidable necessity.” Great stress was laid upon the headstrong action of the States since Johnson’s proclamation of amnesty: the character of the men elevated to the highest positions; the discriminating legislation; the arrogance of the Southern press, and the opposition to the Freedmen’s Bureau. The testimony of witnesses as to the general disposition to repudiate the national debt, if such a thing should provepossible, and as to the natural reluctance to pay taxes, were perhaps too seriously taken, as was also the “proof of a condition of feeling hostile to the Union and dangerous to the government.”
But, whether acting on exaggerated estimates or not, the majority of the committee formulated their conclusions into three clauses, which were as follows:
1. “That the States lately in rebellion were at the close of the war disorganized communities, without civil government, and without constitutions or other forms by virtue of which political relations could legally exist between them and the Federal Government.
2. “That Congress cannot be expected to recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the observance of which has been hitherto required.
3. “That Congress would not be justified in admitting such communities to a participation in the government of the country without first providing such constitutional or other guaranties as will tend to secure the civil rights of all citizens of the Republic; a justequalityof representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the government; and the exclusion from positions of public trust of at least a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.”
In addition, the report contained an enumerated statement of “general facts and principles” which it was claimed were “applicable to all the States recently in rebellion.” In this statement it was asserted that from the time war was declaredthe great majority of the Southerners “became and were insurgents, rebels, traitors; and all of them assumed the political, legal, and practical relation of enemies of the United States.” The States did not desist from war till “every vestige of State and Confederate government” was obliterated, “their people reduced to the condition of enemies conquered in war, entitled only by public law to such rights, privileges and conditions as might be vouchsafed by the conqueror.” They thus had “no right to complain of temporary exclusion from Congress,” until they could “show that they are qualified to resume federal relations. * * * They must prove that they have establishedwith the consent of the people, republican forms of government in harmony with the Constitution and laws of the United States, that all hostile purposes have ceased, and should give adequate guaranties against future treason and rebellion—guaranties which shall prove satisfactory to the Government against which they rebelled, and by whose arms they were subdued.” The rebels “were conquered by the people of the United States acting through all the co-ordinate branches of the Government, and not by the Executive alone. * * * The authority to restore rebels to political power in the Federal Government can be exercised only with the concurrence of all the departments in which political power is vested,” and the proclamations of the President could only be regarded as provisional permission “to do certain acts, the effect and validity whereof is to be determined by the constitutional government, and not solely by the executive power.” If the President had the power to “qualify persons to appoint Senators and elect Representatives, and empower others to appoint and elect them, he thereby practically controls the organization of the legislative department and destroys the constitutional form of government.”[110]