The report of the dissenting members of the committee, Messrs. Johnson, Rogers and Grider, was an ably prepared document embodying at length the doctrines of the minority in Congress, composed of the Democrats and the few Republicans who still sustained the President. As a matter of course the argument was built upon the premise that the so-called Confederate States were never legally separated from the Union, but were bound by all the obligations and entitled to all the privileges of other States. “In its nature the government is formed of and by States possessing equal rights and powers.” A State cannot be held to have forfeited its rights. “To concede that by the illegal conduct of her own citizens she can be withdrawn from the Union, is virtually to concede the right of secession.”
Were the States out of the Union, the minority continued, the submission to them of the proposed constitutional amendment would be absurd; and such submission virtually conceded that the condition of the States remained unchanged. The constitutional power to suppress insurrection is for the preservation, not the subjugation of the State. “The continuance of the Union of all the States is necessary to the intended existence of the Government,” and a different principle leads to disintegration. The war power, as such, cannot be used to extinguish the States; the Government only seeks to suppress the insurrection, achieving which all the States resume their normal relations. The States now have organized governments, republican in form, and the manner in which they were formed is no concern of Congress. “Congress may admit new States, but a State once admitted ceases to be within its control and can never again be brought within it.” There is nothing in the political condition of these States justifying their exclusion from representation in Congress. The proposed amendment would degrade the Southern States, as it would compel them toaccept either a lessened representation or negro suffrage. Further, it interfered with the right of every State to regulate the franchise; and, by joining several subjects and requiring them to be voted on as a whole, deprived the people of the opportunity of passing on this important question separately.
8. The Joint Committee on Reconstruction had already reported two bills and one joint resolution which in its report of June 18 were declared to be the fruit of its labors. These were introduced in the House by Mr. Stevens, April 30. The resolution proposed an amendment to the Constitution, which, as finally amended, became the 14th Amendment.[111]The two accompanying bills were entitled respectively: (1) “A Bill to provide for restoring the States lately in insurrection to their full political rights.” (2) “A Bill declaring certain persons ineligible to office under the Government of the United States.”
The first of these bills prescribed the conditions on which a State lately in insurrection might secure representation in Congress, as well as a ten years’ postponement of the exaction of any unpaid part of the direct tax of 1861. It provided that representation might be secured after the proposed amendment should have become a part of the Constitution, and the State seeking representation should have ratified such amendment. Postponement of the tax might be secured by ratifying the amendment. This bill served as a basis for general discussion of the best method of restoring to the States their political rights; but, no action was taken on it during this session, and it went over as unfinished business to the following December.
The second bill declared as ineligible to office: the President, Vice-President, and foreign agents of the Confederate States; “heads of departments of the United States, officersof the army and navy of the United States, and all persons educated at the Military or Naval Academy of the United States,” federal judges and members of the 36th Congress, who had given aid or comfort to the rebellion; Confederate officers above the rank of colonel in the army or master in the navy; governors of the Confederate States, and “those who have treated officers or soldiers or sailors of the army or navy of the United States, captured during the late war, otherwise than lawfully as prisoners of war.” This bill was less fortunate than the first, since it failed even to receive consideration during the session.
The proposed constitutional amendment, however, fared better. It had been well demonstrated by the discussions during the session that an amendment to the Constitution would be submitted to the States, if a resolution could be framed which would satisfy the heterogeneous elements of the reconstruction party. But the framing of such a resolution had proved a very difficult matter. Stevens, and those most influenced by him, were especially radical in their doctrines, not hesitating to express their desire for the confiscation of rebels’ property and for other extreme measures. Some believed that there should be nothing short of complete disfranchisement, for a term of years, of all who had aided the rebellion in any way—they had acted deliberately, and they must suffer the consequences. Others cared only for the disfranchisement of the more prominent offenders, and for the establishment of negro suffrage. Still another faction wished liberal terms to be offered to the States—limitations, but no interference.
The radicals recognized that their extreme ideas could not obtain congressional sanction, and made no effort to embody them in the plans submitted. From the beginning of the session various propositions were under discussion. Among these, the most attention was attracted by the variouspropositions to modify the existing basis of apportionment of representatives in Congress. Emancipation had rendered this necessary. The “three-fifths clause” of the Constitution having become inoperative, the increased representation resulting from the freeing of the slaves necessitated a change. The first plan was “to apportion Representatives according to the number of voters in the several States.”[112]It was then proposed to exclude from the basis of representation all whose political rights were denied or abridged by any State on account of race or color. This plan, supported by Blaine and Conkling,[113]passed the House on January 31, 1866,[114]but was defeated in the Senate. Many felt that the measure was too stringent. The object was virtually to force upon the Southern States the enfranchisement of the negro.[115]
The Committee on Reconstruction hesitated for over a month after the defeat of this resolution in the Senate. It was finally decided that the only way in which the submission of the desired amendment could be effected, was to concede something to the conservative element of the Senate. Accordingly the draft of April 30 was presented as the recommendation of the committee. This passed the House without difficulty,[116]but encountered fierce opposition in the Senate. The House resolution contained a provision which would have summarily and unconditionally excluded from the franchise all participating in the rebellion, until July 4,1870. This was virtually a complete disfranchisement of the Southern people, and although only temporary, it was felt to be contrary to the spirit of our institutions and too indiscriminate a punishment. It was accordingly stricken out by a unanimous vote.[117]In its place Senator Howard proposed a clause which forms section 3 of the 14th Amendment as it now stands. This clause, while it withheld certain privileges of citizenship from participants in the rebellion who had previously held civil or military office and had taken an oath to support the Constitution of the United States, did not affect the vast majority of Southerners; and it provided that Congress might, by a two-thirds vote of each house, remove the disability of those who were excepted from the restoration of privileges. Moreover, in place of the plan supported by Blaine and Conkling for reducing the basis of representation, the Committee on Reconstruction presented a proposition which better satisfied the conservative element, and which stands to-day as section 2 of the 14th Amendment. It provided that in case the right of any male inhabitant of a State to vote was denied or abridged for any reason “except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” It was argued that in this way fairness was assured, as a State could have no right to claim representation for that portion of her population which was denied the franchise.
On June 8, 1866, the final touches were put on the resolution. Five days later the House concurred in the Senate’s revision, and the 14th Amendment was ready for the ratification of the States.
Johnson’s followers and the Democrats bitterly opposedthe submission of this amendment. The more extreme of them asserted that the Republican majority acted from purely partisan motives. Fearful for the continuance of its supremacy, it desired to place before the States a measure so distasteful to the South as to ensure its rejection. In that way there would be an excuse for additional legislation to prevent the States from obtaining representation, and to preserve Republican control.[118]The composite character of the amendment provoked severe criticism. It was claimed that the sections should be submitted to the States as separate articles, to give opportunity for the rejection of some and the ratification of others. Senator Doolittle moved an amendment to this effect,[119]but the solid reconstruction majority could not be shaken, and the five sections were submitted to the States to stand or fall together. Technical objections were deemed unworthy of consideration when it was supposed to be necessary for the safety of the Union that all the sections should be ratified.
The inadvisability of submitting a constitutional amendment while eleven of the States were not permitted a voice in legislation was strongly urged by the opposition. The President reiterated the protest in his message of June 22, affirming that the submission of the proposed amendment to the States through the executive department was a purely ministerial duty, in no way committing the department to an approval of the action. The first section of the amendment was condemned as a subtle plan eventually to force negro suffrage upon the people as an incident of negro citizenship. It was claimed that the second discriminated too severely against the Southern States with their large preponderance of colored population, and that the third virtually forced them to insult their most respected citizens—a humiliationwhich would drive them to renewed insurrection. The validity of some of the objections was proved by subsequent history; some have proved groundless; others still remain among the unsettled questions.
The reconstruction legislation of the first session of the 39th Congress closed with the restoration of Tennessee to the Union. Other measures were under consideration, but were not acted upon until the following session. The attitude of Tennessee, since her re-organization under the provisions of the proclamation of 1863, had been the most consistent of any of the Southern States.[120]From March 3, 1862, until March 3, 1865, Johnson, as military governor, had preserved law and order to a great extent. The formal reorganization of the State was undertaken by a convention of the loyal citizens convened January 8, 1865, acting upon the recommendation and personal approval of Johnson. This convention proposed the amendments to the constitution of the State, made necessary by the changes brought about by the war, and they were adopted by the loyal voters of the State on February 22. On March 4 a governor and legislature were elected, who assumed their duties on April 3. The work of the legislature was characterized by an apparent eagerness to do all that should be done by a State loyal to the Union.
The popular ratification of the amendments to the Constitution distinguished the action of Tennessee from that of the other Southern States, and this fact, united to her uniformly consistent attitude, formed the ground for the recommendation of the Committee on Reconstruction that this State should be restored to her former rights and privileges. This recommendation, in the form of a joint resolution, was reported from the committee by Mr. Bingham on March5,[121]but no action was taken until July 20. Tennessee’s prompt action in ratifying the 14th Amendment[122]was taken as good evidence that her government was thoroughly reconstructed, and the State entitled to representation. Accordingly a substitute resolution, noting these facts, was introduced and passed, the Senate amending and passing it three days later. This declared Tennessee to be restored to her former relations to the Union, and entitled to representation in Congress,[123]but the preamble was used as a vehicle for the assertion of the sole power of Congress to restore State governments. President Johnson, while approving the resolution, explained in his message that his approval was “not to be construed as an acknowledgment of the right of Congress to pass laws preliminary to the admission of duly qualified representatives from any of the States,” nor as committing him “to all the statements made in the preamble.”
The session had proved far from fruitless, although nothing but the preliminary steps had been taken. The Freedmen’s Bureau and civil rights bills constituted a temporary protection to the freedmen; the right ofhabeas corpusstill remained suspended and military authority prevailed throughout the conquered region. The 14th Amendment was before the people, to be a rallying point for the autumn campaign. The lines between the presidential and congressional parties were now closely drawn. Each knew the strong and the weak points of its opponent. The issue must now be turned over to the people as final judges of its merits. The congressional elections of the fall would decide the issue, and also the future method of reconstruction.
1. The four months following the adjournment of the first session of the 39th Congress were full of excitement. The public was thoroughly aroused, and all incidents were considered in the light they threw upon the question of the hour. The President’s uncompromising hostility to the 14th Amendment brought about a crisis in the Cabinet.[124]William Dennison, Postmaster-General, was the first to declare the impossibility of maintaining cabinet relations with the President. He resigned on July 11, and A. W. Randall, of Wisconsin, First Assistant Postmaster-General, was appointed in his place. Mr. Randall was a devoted adherent of the administration, and president of the National Union Club which called the convention of August 14. The second resignation was that of James Speed, Attorney-General, on July 18. Coming from Kentucky, Mr. Speed had had the reputation of being quite conservative in his views regarding reconstruction, and his formal notice of separation from the President created no little excitement. His intimate connection with the administration gave unusual force to his denunciation of its policy, made at the time of taking the chair as permanent president of the convention of Southern loyalists. Henry Stanbery of Ohio was appointed as his successor, and retained his position until he resigned to assist in the defense of the President in the impeachment trial. A few days after Mr. Speed’s withdrawal, the Secretary of theInterior, James Harlan, tendered his resignation, and O. H. Browning, of Illinois, was appointed to fill the vacancy.
It is altogether probable that these resignations would have been made earlier than they were, had it not been feared that the control of these important administrative departments would fall into the hands of those who would use their powers in opposition to Congress. But the time had come when the incumbents considered that by the retention of the offices they were being forced to share the odium attached to the President, and deemed total separation from him as the best method of justification.
The laws discriminating against the colored man, and the numerous instances of cruelty which had been reported to the North, were an important factor in creating and sustaining the common feeling of hostility to the administration. But the New Orleans riots, occurring on July 30, did more to rouse the people of the North, and convince them that stern measures were necessary, than all that had preceded. The massacre stood out vividly against the background of “black laws,” and furnished an argument of the most effective kind to be used in the campaign.
2. The riots were of a peculiarly exasperating character. The constitutional convention of 1864, summoned by the proclamation of Major General Banks, had passed resolutions giving the president of the convention power “to reconvoke the convention for any cause.” A majority of the members came to the conclusion, in the spring of 1866, that the State constitution should be amended, to place it in harmony with the congressional policy.[125]They determined to have the convention reconvoked for this purpose. The president,Judge E. H. Durell, declined to take advantage of his prerogative, but the delegates, not to be thwarted in this way, proceeded to elect a presidentpro tem.who was willing to issue the desired proclamation. The governor of the State, J. M. Wells, concurred in this rather questionable procedure, and issued a proclamation for an election to fill existing vacancies.
It being well understood that negro suffrage was one of the ultimate objects desired by the supporters of the proposed constitutional convention, active hostility to the movement rapidly developed. The proclamation of the presidentpro tem.called for the assembling of the delegates on July 30; and though the only object of this meeting was to determine officially the existing vacancies to be filled in the fall elections, the enemies to the enfranchisement of the freedmen determined to crush the movement in its incipient stage. It is an easy matter to stir up the passions and prejudices of the people, and the indiscreet speeches of certain of the delegates only added to the popular excitement. A negro procession organized in honor of the convention was attacked by a mob in front of Mechanics’ Hall, where the convention was in session. The attack was soon extended to the hall itself, the police of the city joining hands with the assailants. When the riot was over nearly two hundred persons were found to have been killed or wounded, the greatest sufferers being the negroes, who were shot down in front of the hall without mercy.
The flagrancy of the act, the connivance of the city authorities, and the fact that, while legal steps were taken against the delegates and innocent spectators, the actual murderers were in no way molested, furnished to the people of the incensed North ample proof of the inability of the South to maintain local government, and of the advisability of refusing to restore these States to their former position in the Union.New Orleans was taken as a fair example of what might happen at any place in the South. There was no satisfactory justification for these acts of violence, and there was little inclination in the North to consider the legal technicalities involved in the attempt to amend the constitution of Louisiana. They simply took cognizance of the fact that about fifty loyal citizens had been murdered in cold blood, with the city authorities silently acquiescing. In the face of such a fact, the solicitude of the President to preserve the “inherent rights of the States” did not appeal to the masses, and Johnson was forced to begin his campaign badly handicapped.
But, in addition to the blow given to the theory of the administration, Johnson was forced to labor against a certain amount of personal censure, brought about by his supposed attitude before the riots and his known attitude after them. It was freely charged that he was in full sympathy with the determination of the Mayor of New Orleans, and the Lieutenant-Governor and Attorney-General of Louisiana, to prevent the convention from accomplishing its plans. In support of the charge, his answer to the inquiry as to whether the military power would interfere with the attempt to arrest the members of the convention upon criminal process was cited. His reply was as follows:[126]“The military will be expected to sustain, and not to obstruct or interfere with the proceedings of the court.” While this may have indicated too great confidence in the civil authorities of Louisiana, it certainly did not imply any connivance in or sympathy with the summary proceeding of July 30. Possibly the well-known opposition of Johnson to negro suffrage may have stimulated the rioters to bolder defiance of Northern sentiment, but censure of him can extendno farther. But, in his political canvass in the fall,[127]while endeavoring in every way to discredit the 39th Congress in the eyes of the people, he committed a grave error by an indirect defense of the rioters, attacking the members of the convention as traitors who incited the negro population to rioting, and throwing the responsibility of the whole affair back upon Congress as having originated and fostered the plan to force negro suffrage upon Louisiana.[128]
3. The fall campaign was formally opened by the supporters of the presidential policy, who had immediately accepted the report of the Committee on Reconstruction as the platform of the Republican anti-administration faction, and had determined to appeal on that issue to the people. Their hope was that the conservative element of the population, thoroughly worn out by the struggle, would uphold the speedy restoration of the Southern States, and that thereby a coalition might be made between the Democrats and the administration Republicans strong enough to unseat many of the radical members, reverse the majority, and so give the administration control in the 40th Congress.
The first steps were promptly taken. The executive committee of the National Union Club, a political organization established in Washington by supporters of the administration, issued on June 25, just one week after the submission of the report of the Committee on Reconstruction, a call for a national convention to be held in Philadelphia on August 14.[129]Delegates to this convention were to be chosen by those supporting the administration and agreeing to certain “fundamental propositions” which formed theplatform of the conservatives. These propositions maintained the absolute indissolubility of the Union, the universal supremacy of the Constitution and acts of Congress in pursuance thereof, the constitutional guarantee to maintain the rights, dignity and equality of the States, and the right of each State to prescribe the qualifications of electors, without any federal interference. They declared that the usurpation and centralization of powers infringing upon the rights of the States “would be a revolution, dangerous to republican government, and destructive of liberty;” that the exclusion of loyal senators and representatives, properly chosen and qualified under the Constitution and laws, was unjust and revolutionary; that as the war was at an end, “war measures should also cease, and should be followed by measures of peaceful administration;” and that the restoration of the rights and privileges of the States was necessary for the prosperity of the Union. This formal call was approved, and its principles endorsed by the Democratic congressmen, who issued an address to the “People of the United States” on July 4, urging them to act promptly in the selection of delegates to the convention.
In accordance with the call, every State and Territory was represented in the convention. A glance at the list of delegates shows that they included many of the prominent Democrats of the country, re-enforced by a number of the prominent Republicans[130]who were in sympathy with the administration. The enthusiastic manner in which the summons was answered seemed to the friends of the administration to indicate an unquestionable overthrow of the radicals. They thought that harmony was soon to reign over all portions of the Union, which was once more being drawn closely together by the watchword “National Union.”
Reverdy Johnson, who had submitted in the Senate the minority report of the Committee on Reconstruction, was chosen chairman, and Senator Cowan, of Pennsylvania, chairman of the committee on resolutions. Theresolutionswere reported on August 17, and unanimously adopted by the convention. They re-affirmed the fundamental principles set forth in the call of June 25, and appealed to the people of the United States to elect none to Congress but those who “will receive to seats therein loyal representatives from every State in allegiance to the United States.” They reiterated the claim that in the ratification of constitutional amendments all the States “have an equal and an indefeasible right to a voice and vote thereon.” In concession to Northern sentiment, they declared that the South had no desire to re-establish slavery; that the civil rights of the freedmen were to be respected, the rebel debt repudiated, the national debt declared sacred and inviolable, and the duty of the government to recognize the services of the federal soldiers and sailors admitted. A final resolution commended the President in the highest terms, as worthy of the nation, “having faith unassailable in the people and in the principles of free government.”[131]
These views were fully elaborated in an address prepared by Henry J. Raymond, and read before the convention. Little attempt was made to qualify or render less offensive the argument that the Southern States must be allowed their representation in Congress, whether or not such action was for the best interest of the Union. Referring to this the address declared that “we have no right, for such reasons, to deny to any portion of the States or people rights expressly conferred upon them by the Constitution of the United States.” We should trust to the ability of our people“to protect and defend, under all contingencies and by whatever means may be required, its honor and welfare.”[132]
A committee of the convention hastened formally to present its proceedings to President Johnson, who had taken the keenest interest in the plans of the National Union party. In his remarks to the committee he feelingly referred to the somewhat theatrical entrance of the delegates of South Carolina and Massachusetts, “arm in arm, marching into that vast assemblage, and thus giving evidence that the two extremes had come together again, and that for the future they were united, as they had been in the past, for the preservation of the Union.” Speaking to a sympathetic audience, who applauded him to the echo, and believing that the people were now endorsing his opposition to Congress, he saw no necessity for tempering his statements, and cast aside his discretion. His characterization of Congress was as follows: “We have witnessed, in one department of the government, every endeavor to prevent the restoration of peace, harmony and union. We have seen hanging upon the verge of the Government, as it were, a body called, or which assumes to be, the Congress of the United States, while in fact it is a Congress of only a part of the States. We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion and make a disruption of the States inevitable. Instead of promoting reconciliation and harmony, its legislation has partaken of the character of penalties, retaliation and revenge. This has been the course and policy of one portion of the Government.”[133]Again, to show the disinterestedness of his own course, he said: “If I had wanted authority, or if I had wished to perpetuate my own power, how easily could I have held and wielded that power whichwas placed in my hands by the measure called the Freedmen’s Bureau bill (laughter and applause). With an army, which it placed at my discretion, I could have remained at the capital of the nation, and with fifty or sixty millions of appropriations at my disposal, with the machinery to be unlocked by my own hands, with my satraps and dependents in every town and village, with the Civil Rights bill following as an auxiliary (laughter), and with the patronage and other appliances of the Government, I could have proclaimed myself dictator.” (“That’s true!” and applause.)[134]
But his indiscretions did not end with speeches before his sympathizers. Two weeks later he started on a trip, nominally to assist in the ceremony of laying the cornerstone of the Douglas monument in Chicago.[135]As a matter of fact, however, he was merely taking advantage of an opportunity to defend his policy publicly. Johnson was of too impassioned a nature to be able to judge as to how far the President of the United States could afford to adopt the methods of the stump speaker. All constraint was thrown away, and he acted at many times the part most natural to him, that of a popular orator addressing the masses. His speeches at no time lacked clearness. All could see where he stood, and nothing was left for speculation.
His first important effort while on his journey was at New York on August 29, where he responded to a toast proposed by the mayor of the city. In this speech he defined the issue as follows: “The rebellion has been suppressed, and in the suppression of the rebellion it [the government] has * * * established the great fact that these States have not the power, and it denied their right, by forcible or peaceablemeans, to separate themselves from the Union. (Cheers, ‘Good!’) That having been determined and settled by the Government of the United States in the field and in one of the departments of the government—the executive department of the government—there is an open issue; there is another department of your government which has declared by its official acts, and by the position of the Government, notwithstanding the rebellion was suppressed for the purpose of preserving the Union of the States and establishing the doctrine that the States could not secede, yet they have practically assumed and declared and carried up to the present point, that the Government was dissolved and the States were out of the Union. (Cheers.) We who contended for the opposite doctrine years ago contended that even the States had not the right to peaceably secede; and one of the means and modes of possible secession was that the States of the Union might withdraw their representatives from the Congress of the United States, and that would be practical dissolution. We denied that they had any such right. (Cheers.) And now, when the doctrine is established that they have no right to withdraw, and the rebellion is at an end * * * we find that in violation of the Constitution, in express terms as well as in spirit, that these States of the Union have been and still are denied their representation in the Senate and in the House of Representatives.”[136]Then, speaking of the people of the South: “* * Do we want to humiliate them and degrade them and drag them in the dust? (‘No, no!’ Cheers.) I say this, and I repeat it here to-night, I do not want them to come back to this Union a degraded and debased people. (Loud cheers.) They are not fit to be a part of this great American family if they are degraded and treated with ignominy and contempt. I want them when they comeback to become a part of this great country, an honored portion of the American people.”[137]
Another representative speech was the one which he made in Cleveland on September 3: “I tell you, my countrymen, I have been fighting the South, and they have been whipped and crushed, and they acknowledge their defeat and accept the terms of the Constitution; and now, as I go around the circle, having fought traitors at the South, I am prepared to fight traitors at the North. (Cheers.) God willing, with your help we will do it. (Cries of ‘We won’t.’) It will be crushed North and South, and this glorious Union of ours will be preserved. (Cheers.) I do not come here as the Chief Magistrate of twenty-five States out of thirty-six. (Cheers.) I came here to-night with the flag of my country and the Constitution of thirty-six States untarnished. Are you for dividing this country? (Cries of ‘No.’) Then I am President, and I am President of the whole United States. (Cheers.)”[138]
Speeches of this nature, coming at a time when theoutrages in the South had so greatly incensed the North, had a most depressing influence upon the fortunes of the National Union party, and failed utterly in the object for which they were intended. The trip proved to be a grave political mistake. The undignified spectacle of a President receiving coarse personal abuse and retorting in scarcely less coarse expressions was quickly taken advantage of by his opponents; and the phrase “swinging around the circle” has assumed historic dignity as a description of his journey.
4. The “off year” national convention plan adopted by the National Union Club was immediately accepted by the congressional party, which was no less active in preparations for the struggle. On July 4, the same day on which the Democratic congressmen issued their address to the people, representative Southern Unionists,[139]supporters of Congress, issued a call to “the Loyal Unionists of the South,” for a convention to be held in Philadelphia on September 3.[140]The call stated that the convention was “for the purpose of bringing the loyal Unionists of the South” into conjunction with the true friends of republican government in the North. “* * The time has come when the restructure of Southern State government must be laid on constitutional principles. * * * We maintain that no State, either by its organic law or legislation, can make transgression on the rights of the citizen legitimate. * * * Under the doctrine of ‘State sovereignty,’ with rebels in the foreground, controlling Southern legislatures, and embittered by disappointment in their schemes to destroy the Union, there will be no safety for the loyal element of the South. Our reliance for protection is now on Congress, and the great Union party that has stood and is standing by our nationality, by the constitutionalrights of the citizen, and by the beneficent principles of the government.”
The convention met at the time appointed, with representatives present from all the lately insurrectionary States.[141]James Speed of Kentucky, Attorney-General until July 18, was elected permanent chairman. For purposes of co-operation, the Northern States had been invited to send delegations, and all responded. Thus the convention was as truly national as the “National Union” convention of August 14 had been. It was decided, however, that for the purpose of rendering the declaration of the Southern Unionists more significant, the Northern and Southern Unionists should hold their sessions separately, and Governor Curtin of Pennsylvania was accordingly elected chairman of the Northern section.
The resolutions of the Southern section were reported by Governor Hamilton of Texas, chairman of the committee on resolutions, and they naturally endorsed the action of Congress in its entirety.[142]While demanding the restoration of the States, they declared Johnson’s policy to be “unjust, oppressive, and intolerable,” and that restoration under his “inadequate conditions” would only magnify “the perils and sorrows of our condition.” They agreed to support Congress and to endeavor to secure the ratification of the 14th Amendment. Congress alone had power to determine the political status of the States and the rights of the people, “to the exclusion of the independent action of any and every other department of the Government.” “The organizations of the unrepresented States, assuming to be state governments, not having been legally established,” were declared “not legitimate governments until reorganized by Congress.” In addition to these resolutions, an address “from the loyalmen of the South to their fellow-citizens of the United States,” was prepared and adopted after the formal adjournment of the convention.[143]This reaffirmed, in far stronger terms, the condemnation of President Johnson, specifying many ways in which he had wrought injury to them, and closing with the following significant and powerful declaration: “We affirm that the loyalists of the South look to Congress with affectionate gratitude and confidence, as the only means to save us from persecution, exile and death itself; and we also declare that there can be no security for us or our children, there can be no safety for the country against the fell spirit of slavery, now organized in the form of serfdom, unless the Government, by national and appropriate legislation, enforced by national authority, shall confer on every citizen in the States we represent the American birthright of impartial suffrage and equality before the law. This is the one all-sufficient remedy. This is our great need and pressing necessity.”[144]
A third convention of the year was the Cleveland convention of soldiers and sailors,[145]organized on September 17, with General Wood of the regular army as chairman. This convention was composed of supporters of the administration, and, like the National Union convention, contained a considerable proportion of Democrats. The resolutions endorsed those of the National Union convention, and declared that “our object in taking up arms to suppress the late rebellion was to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, equality, and rights of the States unimpaired.”
The great mass of the soldiers, however, were earnestsupporters of Congress, and the results of the Cleveland convention were disappointing to its originators; its principal effect was to create great enthusiasm over the anti-administration convention of soldiers and sailors, which met in Pittsburg on September 25 and 26.[146]This demonstration was intended to offset whatever influence the Cleveland convention might have had over the people, and it proved wonderfully effective. It was estimated that at least twenty-five thousand old soldiers were in the city at the time. The cause for this enthusiastic support is not difficult to find. The policy of the administration appealed to the moderates—those who wished as rapid a restoration to former conditions as possible, and those who were most influenced by the appeal to so-called justice. The majority of the soldiers, on the contrary, those who had made the greatest sacrifices for their country, were the most sensitive concerning the results of their sacrifices. Thoroughly accustomed to the thought of their great accomplishments, the manumission of the slaves and the preservation of the integrity of national power, they were keen to resent any steps which they thought tended toward the annulling of these results. With this natural bias, the arguments which the congressional party brought to bear upon them were accepted with enthusiasm; and many of the leaders went into the political campaign to be followed by the same soldiers who had followed them through their military campaigns. The convention, however, was in no sense a convention of officers. While the permanent president, Jacob D. Cox, of Ohio,[147]had been a general of volunteers, the temporary chairman, L. E. Dudley, had been a private, and the majority of the offices of the convention were filled by men below the rank of lieutenant.
As was to be expected from the nature of the convention, the feeling against the administration was stronger and declared in more impassioned tones than in the previous anti-administration convention. Its influence upon the country was correspondingly greater. The army, recognized at this time as the great preserver of the commonwealth, had great influence over all classes of citizens. The anti-administration conventions, the New Orleans massacre, and the violent attacks on Congress by the President while “swinging around the circle,” assured the triumph of the congressional party.
The resolutions adopted at Pittsburgh were presented by General Butler.[148]They were emphatic in tone, commencing with the declaration that “the action of the present Congress in passing the pending constitutional amendment is wise, prudent, and just,” and that it was unfortunate that it was not received in the proper spirit, the terms being the mildest “ever granted to subdued rebels.” The President’s policy was declared to be “as dangerous as it is unwise,” and “if consummated it would render the sacrifices of the nation useless.” The power “to pass all acts of legislation that are necessary for the complete restoration of the Union” was declared to rest in Congress. The declaration of the President to the committee of the National Union convention, that he could have made himself dictator through the Freedmen’s Bureau, aided by the army and navy, was characterized as an insult to “every soldier and sailor in the Republic.” The obligation of the soldiers and sailors to the loyal men of the South was acknowledged; and it was added: “We will stand by and protect with our lives, if necessary, those brave men who remain true to us when all around are false and faithless.”
This, the most successful of the four conventions,completed the remarkable series of national gatherings organized for effect on the State elections. They were all characterized by frankness of statement, and by clear recognition of the points at issue. But, as frequently happens in political campaigns, the most important incidents were those which were not designed to affect national issues. The riot at New Orleans was intended, by its participants, to affect only Louisiana politics, yet all the Southern States were compelled to share the responsibility. The same thing was true of all other incidents through which the South manifested, during these critical months, an unwillingness to accept the political results of the war.
5. The fall elections resulted in a decisive victory for the congressional policy, which secured a two-thirds majority in both houses. The protests of the President were shown to lack popular support, and his vetoes in the coming sessions were to be considered as merely one necessary step in the legislative formality of passing a bill. The country had decreed that Johnson could not have a voice in legislation. The campaign had been in all respects disastrous to the President. The support which he had received was mainly drawn from the Democratic party, and was of a half-hearted nature; for, however nearly they agreed in theory, the fact still remained that he was nominally a Republican President, and that almost all of his patronage was bestowed upon Republicans. He had thrown out decided hints that he would reverse his policy. For example, in St. Louis, on September 8, he said: “I believe in the good old doctrine advocated by Washington, Jefferson and Madison—of rotation in office. These people who have been enjoying these offices seem to have lost sight of this doctrine. I believe that one set of men have enjoyed the emoluments of office long enough. They should let another portion of the people have a chance. * * * Congress says he [the President]shall not turn them out, and they are trying to pass laws to prevent it being done. Well, let me say to you, if you will stand by me in this action (cheers), if you will stand by me in trying to give the people a fair chance—soldiers and citizens—to participate in these offices, God being willing I will kick them out. * * * God willing, with your help, I will veto their measures whenever any of them come to me.”[149]But all this failed to give him that which he prided himself so much on having, the support of the people; and, so far as reconstruction was concerned, his influence was ended by the fall elections of 1866.
6. While such was the general result of the campaign, the South voted to sustain the President’s policy. The fact that Johnson had taken direct issue with Congress, and was actively supporting Democratic principles, had a wonderful influence upon the South. The papers enthusiastically prophesied the complete overthrow of the Republican party. They reasoned that the enormous patronage of the President would ensure him a following so powerful that its coalition with Democracy could not but result in victory. Then, they reasoned, it would only be necessary to wait until the convening of the 40th Congress, when the obnoxious amendment would be discredited and the States readmitted to the possession of all their rights and privileges without further delay or conditions. They utterly failed to realize the injury which their discriminative legislation, the New Orleans riots, the widely spread reports of cruelty and oppression, and the defiant attitude of their press, had inflicted on their cause. They only saw that the administration and Congress were estranged, and believed that to be a sure indication of final success.
In this frame of mind they came to the polls, and in all the Southern States overwhelming Democratic majoritiesevidenced the popular sentiment among the dominant classes. Accordingly, when the State legislatures convened, the 14th amendment was rejected almost unanimously in all except Tennessee, which had ratified it in July. Delaware, Maryland and Kentucky, the border Union States, also rejected the amendment, allying themselves with the Southern cause. Twenty-one of the remaining twenty-four States ratified the amendment, endorsing thereby the action of Congress.[150]Iowa, Nebraska and California did not act upon the amendment at this time.
Had Thaddeus Stevens and Charles Sumner been able to persuade Congress to adopt their theory of the status of the Southern States, the amendment would have been assumed to be a part of the Constitution, as twenty-one States were more than three-quarters of twenty-seven, the total number of States represented in Congress. But the majority of congressmen were never able to adopt, in its entirety, the theory that the rebellion had utterly destroyed the States and left them mere territory. It preferred to accomplish the same result by less violent means. The legislation enacted as a result of the attitude of the South towards the amendment practically treated the States as conquered territory, yet they were counted in determining the ratification of both the 13th and the 14th amendment.
The defiant attitude taken by the Southern legislatures was a grave mistake. The most of them did not convene until Congress was again in session, after the defeat of the administration, and when they should have been able to see that their only hope was in submission. But the South, ever too ready to act first and consider the consequences afterwards, only saw in the proposed amendment an insult to the white race and an injustice to their leaders. That they should be asked deliberately to inflict upon themselvesthis punishment, seemed a humiliation which self-respect could permit them only to spurn. They did not stop to realize that the rejection of these terms would cause measures still more severe to be enacted.
1. The second session of the 39th Congress opened with its members in a far different frame of mind from that in which they had assembled in 1865. Then they had approached their work with hesitation; their plans were not formulated; they could not know how far the country would sustain them in their opposition to the President. Now, in the flush of victory, their policy sustained, the President discredited, with their two-thirds majority in both houses unbroken, they were prepared to proceed to enact legislation which not only should secure that which had been accomplished already, but also should settle finally the problem of reconstruction, and place the President in a position where he could do no harm.[151]
Much curiosity had been felt as to the attitude which Johnson would take in his annual message. He believed thoroughly in the righteousness of his cause, and had such implicit confidence in the unerring judgment of the people that he had deemed it impossible that his policy would be repudiated. The results of the election were a great disappointment to him, and some had believed that he would introduce into the message the abuse which he had so unsparingly inflicted upon Congress during the campaign. The message, however, contained nothing approaching virulence, but on the contrary was a document eminentlycreditable to the President.[152]It restated in a powerful way the constitutional position of the administration, and defended its actions in a dignified yet spirited manner. The fearlessness of his attitude was characteristic; the argumentative brilliancy of its presentation was unsurpassed. Unmindful of the fact that Congress had assembled to complete the overthrow of his policy of reconstruction, he reminded Congress that “the Constitution of the United States makes it the duty of the President to recommend to the consideration of Congress” such measures as he shall judge necessary or expedient. “* * * I know,” he said, “of no measure more imperatively demanded by every consideration of national interest, sound policy, and equal justice, than the admission of loyal members from the now unrepresented States. * * * The interests of the nation are best to be promoted by the revival of fraternal relations, the complete obliteration of our past differences, and the re-inauguration of all pursuits of peace.”[153]The message closed with the request: “Let us endeavor to preserve harmony between the co-ordinate departments of the Government, that each in its proper sphere may cordially co-operate with the other in securing the maintenance of the Constitution, the preservation of the Union, and the perpetuity of our free institutions.”
Unfortunately for the country, there could be no harmony “between the co-ordinate departments of the Government,” where there was such fundamental disagreement. Neither side proposed to retreat an inch from the stand taken, and the message served no other purpose than to leave a very excellent state paper as a memento of the session.
The Joint Committee on Reconstruction[154]was immediately re-appointed by a concurrent resolution. Only one change was necessary—Mr. Grider, of Kentucky, one of the minority members, had died during the recess of Congress, and in his place Mr. Hise, of the same State, was appointed. The committee immediately resumed its labors, and proceeded to frame a bill “for the more efficient government of the rebel States.” The developments of the last three months had created a sentiment favorable to more stringent conditions of re-admission, and the action of the various Southern legislatures, who were rejecting the 14th amendment during this period, served as a further stimulus to vigorous action.
2. Several weeks elapsed before the committee was willing to adopt any definite plan. Finally, on February 4, 1867, Mr. Williams reported from the committee, a bill to the Senate;[155]it was referred back to the committee, and was formally reported to the House by Mr. Stevens on the 6th.[156]
The preamble to the bill declared that in the absence of legal State governments there was no adequate protection for person and property, and that therefore it was necessary to enforce peace and good order until loyal State governments could be established. To this end “the so-called States shall be divided into military districts,” five in number, Virginia to constitute the first, North Carolina and South Carolina the second, Georgia, Alabama, and Florida the third, Mississippi and Arkansas the fourth, and Louisiana and Texas the fifth. The General of the Army was “to assign to the command of each of said districts an officer of the regular army not below the rank of brigadier-general, and to detail a sufficientforce to enable such officer to enforce his authority.” The officer in command of a district was to have complete authority to protect the civil rights of all, suppress insurrection and preserve order. To assist him he could employ civil or military tribunals at his discretion, but no capital punishment, imposed by a military tribunal, should be executed without the approval of the officer in charge of the district. Writs ofhabeas corpusshould not be issued by federal courts or judicial officers except on endorsement of some commissioned officer in the district.
The discussion of the bill began on the day following its introduction. Mr. Stevens, with his usual impetuosity, wished for an immediate vote. The bill seemed more moderate to him than the South deserved, and with the large Republican majority intent upon some such legislation, he could see no reason for delay. The bill was clearly worded and all could understand it perfectly. But there was an influential element that preferred to make haste slowly, and many hours were given up to debate before the final passage of the bill by the House, on February 20.
The measure certainly was exceedingly radical as it was reported from the committee. As Mr. Le Blond, of Ohio, said: “It strikes at the civil governments in those States. It ignores State lines. It destroys their civil governments. It breaks down the judicial system in those States.”[157]The distrust of the President was evidenced by empowering General Grant to appoint the commanders of the military districts, ignoring the President as commander-in-chief of the army. Most important of all, the bill as it stood was the action of a conquering power over conquered territory. It provided for an indefinite military control over the territory, and specified no mode in which a State might free herselffrom the onerous conditions. It was not a measure of reconstruction; it was a measure of subjugation.
Of course none of its supporters had the slightest idea of its being more than a temporary measure, but even temporary measures must be considered in all their aspects. Their idea was that expressed by Mr. Brandegee of Connecticut when he said: “It holds those revolted communities in the grasp of war until the rebellion shall have laid down its spirit, as two years ago it formally laid down its arms.”[158]
Mr. Bingham took an active part in the opposition to the adoption of the bill as it stood. Representing the more conservative branch of the anti-administration party, he suggested on the opening day of the discussion amendments which would make the bill more desirable. On February 12 he submitted an amendment, the essential features of which were finally adopted, but which encountered the fiercest opposition and was only carried when compromise between the House and the Senate was found to be impossible. His amendment provided as conditions for re-admitting a State to representation in Congress: Ratification of the 14th amendment; such modification of State constitution and laws as would make them conform to that amendment; a constitutional provision for negro suffrage; and the approval of the constitution by Congress as republican in form and consistent with the Constitution and laws of the United States.
Mr. Blaine proposed an amendment similar in its aim to that of Mr. Bingham, who accepted it as a substitute. But the House was opposed to providing any loop-holes by which the States could escape the provisions of the act. The feeling that the South had been weighed in the balance and found wanting, that its whole attitude was that of defiance, and that it would endeavor to undo all that hadbeen done as soon as it could obtain an opportunity, was sufficiently strong to defeat an attempt to refer the bill to the Judiciary Committee with instructions to incorporate the amendment. Instead, a substitute measure, introduced by Mr. Stevens, which differed but little from the original bill, passed the House on February 13.[159]
The great struggle now began in the Senate, where the Blaine amendment was moved by Mr. Johnson of Maryland, on February 15. There was an influential element which feared that its adoption would utterly nullify the object of the bill—to govern the States until they could be re-admitted with safety. Their objections were based on the same principles that had proved fatal to the amendment in the House. “I see,” said Senator Howard, “in this amendment a fatal snare by which we shall be deceived in the end, by which we are to be deluded into a premature re-admission of the rebel States in such a manner as to make us ultimately repent of our folly and rashness. * * * It is a snare by which increased representation from the rebel States may come into Congress, * * while we have no security at all that the extended elective franchise will be continued in the rebel States to the black population. They can disfranchise them whenever they see fit after having secured increased representation.”[160]
The Senate, more conservative than the House, could not muster such a strong opposition to the amendment. It was rejected, but rejected in order to open the way for another amendment in the form of a substitute bill, which was moved by Senator Sherman.[161]The substitute had been agreed upon in a Republican caucus, and was accordingly carried. Its first four sections contained nearly all the featuresof the original bill; it substituted “President” for “General,” in the second section, and, in place of the provision against writs ofhabeas corpus, the fourth section simply enacted that “all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted.” The fifth section contained the features proposed in the Bingham and Blaine amendments, amplified in a manner satisfactory to the majority of the Senatorial caucus. The conditions of readmission were as follows: The adoption of a constitution in conformity with the Constitution of the United States, and the ratification of the 14th amendment. The constitution, which must be examined and approved by Congress, must be framed by a convention of delegates chosen by “the male citizens of said State twenty-one years of age and upwards, of whatever race, color, or previous condition, who have been resident in the State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion, or for felony at common law;” must give the elective franchise to all qualified as electors for the delegates; and must be ratified by a majority of the persons voting on ratification, and qualified as such electors. To this the proviso was added that no person disqualified by the 14th amendment from holding office should be chosen as a delegate to the convention or vote for members of it. One more amendment to the bill was made on motion of Senator Doolittle. This added as a proviso to the fourth section: “That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President.”
The bill was returned to the House in this form, the Senate having passed it at six o’clock Sunday morning, February 17. The margin of time that could be used without permitting the bill to be killed by a “pocket veto” was now verylimited, but the House refused to concur in the amendment and called for a committee of conference, February 19. The Senate insisted on its amendment and the bill was again returned to the House, which on the following day concurred in the Senate amendment, but added an amendment of its own proposed by Mr. Wilson, of Iowa, and amended on motion of Mr. Shellabarger.[162]This amendment, constituting the sixth section of the bill, was speedily concurred in by the Senate, and on February 20, 1867, the bill was finally passed and ready for the President’s veto.
The sixth section, so hurriedly tacked on to the bill, was of no slight importance, as it declared in legal form thestatusof the Southern governments, and clinched the qualifications for the elective franchise. It provided that “until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.”[163]
As had been expected, Johnson withheld his veto as long as it was possible for him to do so without permitting the bill to become a law, not returning the bill until March 2.[164]This was done in the hope that the minority, by dilatoryproceedings, might prevent action on the veto before the adjournment, on March 4, and so prevent the bill from becoming a law. But the plan failed, and the bill was immediately passed, “the objections of the President to the contrary notwithstanding.”
The veto message embodied an exhaustive review of the bill, a criticism of its “cruelty,” and an attack upon its constitutionality. It denied the statement in the preamble that “no legal State governments or adequate protection for life or property,” existed in these ten States, and declared that “the establishment of peace and good order is not its real object. * * * The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment.” The despotic authority given to the commander of a district was vigorously denounced, and all the humane provisions of the bill were declared to depend upon the will of the commander, who could nullify them and oppress the people without limitations of any kind. “It reduces the whole population of the ten States—all persons, of every color, sex and condition, and every stranger within their limits—to the most abject and degrading slavery.”
But aside from its injustice, Johnson went on to argue, the measure was unconstitutional and could not legally be carried into execution. In a time of peace martial law could not be established, in proof of which statement he quoted from the decision of the Supreme Court, inEx parteMilligan, defining military jurisdiction. The denial of the right of trial by jury and of the privilege of the writ ofhabeas corpuswas not counterbalanced by the poor privilege of trial “without unnecessary delay.” In defiance of the constitutional prohibitionof bills of attainder, “here is a bill of attainder against nine millions of people at once”—a legislative enactment “based upon an accusation so vague as to be scarcely intelligible, and found to be true upon no credible evidence.” The primary purpose of the bill, to compel these States “by force to the adoption of organic laws and regulations which they are unwilling to accept if left to themselves,” was in itself unconstitutional. “The Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State.”
Respecting the legality of the state governments, the important point was made that if they were illegal, their ratification of the 13th amendment could not have been legal. The message closed with an appeal for restoration “by simple compliance with the plain requirements of the Constitution.”
Taken as a whole, the message unquestionably contained many strong arguments against the bill, and was virtually a summary of the arguments advanced by the minority in Congress. But the struggle had passed beyond the province of unbiased debate, and each side was equally determined not to yield any point. A measure open to the most serious suspicions regarding its constitutionality, was passed by an inflexible majority, settled in the belief that the condition of the South required the measure, and that the Constitution must accordingly be stretched to cover the case.
Those supporters of the bill who were recognized as the most careful in their judgments confidently asserted that that portion of it establishing the military districts contained nothing that could not have been carried out legally by the government as a military measure, without the formality of enacting the bill. The insurrectionary States would legally remain in a condition of insurrection until Congress should formally declare the insurrection to be at end.Consequently martial law could constitutionally prevail, trial by jury and the writ ofhabeas corpusbe suspended, and civil government utilized as an aid to military rule, to any extent that might seem advisable to the general in charge. The claim that the measure amounted to an enormous bill of attainder was immediately dismissed as absurd, as no corruption of blood or forfeiture of estates was involved, and the whole measure was avowedly temporary, to cease as soon as the State should comply with the conditions of reconstruction.