CHAPTER III.

THE ATTITUDE OF CONGRESS TOWARDS THE EXPERIMENT: DEVELOPMENT OF THE CONGRESSIONAL THEORY.

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 both houses 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 choosing for these 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 three series 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 a joint committee on 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-defined sentiment 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 various interviews 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 declared reconstructed 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, of Illinois, 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, eulogized Johnson'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 in favor 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 proceeded to 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 thus failed to 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 under a 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 of _habeas corpus_ and of trial by jury; and he added that "for the sake of a more vigorous interposition 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 made public 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 the _personnel_ of 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, providing that 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 from partisan 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 his reasons 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 make and 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 the _status_ of 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] He questioned 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 labor in 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 President Johnson 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 to their 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 the _status_ of 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 conclusions and 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 prove possible, 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 just equality of 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 declared the 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 established _with 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]

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 to accept 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, officers of 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 various propositions 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 opposed the 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 humiliation which 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 March 5,[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 of _habeas corpus_ still 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.