THE CONGRESSIONAL THEORY FULLY DEVELOPED.
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 eminently creditable 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 sufficient force 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 of habeas corpus should 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 herself from 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 had been 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 features of the original bill; it substituted “President” for “General,” in the second section, and, in place of the provision against writs of habeas 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 very limited, 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 the status of 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 dilatory proceedings, 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, in Ex parte Milligan, defining military jurisdiction. The denial of the right of trial by jury and of the privilege of the writ of habeas corpus was not counterbalanced by the poor privilege of trial “without unnecessary delay.” In defiance of the constitutional prohibition of 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 of habeas corpus be 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.
Congress felt justified in passing the bill over the veto, and accordingly the general process of reconstruction was established with conditions far more onerous than had been intended in the first session of the 39th Congress. The provisions of the act immediately went into force, and the commanders of the districts were appointed on March eleventh.
3. The bill was conceded by all its supporters to be incomplete. It provided for the establishment of districts and the governing of these districts by military law, and it was hoped that the immediate crying need of a strong government to enforce order and prevent the continuance of the oppression of the freedmen was satisfied. This done, they could proceed more deliberately to the enactment of measures which would provide the mechanism for carrying out the provisions of the fifth section. The adjournment of the 39th Congress at noon of March 4 prevented any action until the next Congress; but preparation had been made for such an emergency by an act which provided that in future each Congress should convene upon the adjournment of its predecessor.[165]
The 40th Congress at once settled down to work upon the problem. Chief Justice Chase prepared a bill which was used as a basis for the discussion. Senator Wilson and others modified the bill to some extent, and introduced it in the Senate on March 7.[166] The same bill, slightly modified, was introduced in the House.[167] Considerable trouble was experienced in agreeing upon the details of the bill, but on March 19 both houses finally adopted a compromise proposed by a committee of conference. The veto message of the President was received four days later; the bill was immediately passed over the veto and became a law.[168]
As finally passed, the bill was entitled: “An Act supplementary to an Act entitled, ‘An Act to provide for the more efficient government of the rebel States,’ passed March second, eighteen hundred and sixty-seven, and to facilitate restoration.” It enacted that the commanding general in each district should cause a registration to be made before September 1, 1867, of those entitled to vote under the original act, and should require all registering to take the following oath: “I, —— do solemnly swear (or affirm) in the presence of Almighty God, that I am a citizen of the State of ——; that I have resided in said State for —— months next preceding this day, and now reside in the county of ——, or the parish of ——, in said State (as the case may be); that I am twenty-one years old; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do, so help me God.”[169] After the completion of the registration in any State, it was provided that there should be held, after at least thirty days’ public notice by the commanding general, an election of delegates “to a convention for the purpose of establishing a constitution and civil government for such State loyal to the Union.” This convention was to consist of the same number of members as the most numerous branch of the State legislature in 1860.[170] Those voting at the election of delegates were also to vote for or against the holding of the convention, and it was not to be held if a majority of the ballots was cast against it, or if a majority of the registered voters failed to vote on the question. Boards were to be appointed by the commanding general to superintend the registration and election, and make returns to him of the results of the election. The convention was required to assemble at a place and time appointed by the commanding general, by a notice to be given by him within sixty days from the date of election; and to frame a constitution according to the provisions of the original and the present act. The constitution so framed was then to be submitted to the registered voters at an election conducted by officials who were to be appointed by the commanding general, and who were to make returns to him. In case the constitution was ratified “by a majority of the votes of the registered electors qualified as herein specified, cast at said election (at least one-half of all the registered voters voting upon the question of such ratification),” it was provided that the president of the convention should “transmit a copy of the same, duly certified, to the President of the United States, who shall forthwith transmit the same to Congress,” and that, if Congress should be satisfied that all the provisions of the acts were carried out, and that no force or fraud was used, and should approve the constitution, the State should “be declared entitled to representation, and senators and representatives shall be admitted therefrom as therein provided.” It was further provided that all elections in the States mentioned in the original act should, during the operation of that act, be by ballot; that the officials in charge of the registration and elections must take the “iron-clad” oath of July 2, 1862[171] that the expenses incurred by the commanding generals in carrying out the act should be paid out of the treasury, but that the state conventions should provide for the levying of taxes to pay other expenses.[172]
The veto message on this bill was much shorter than that on the original reconstruction measure. The President said: “No consideration could induce me to give my approval to such an election law for any purpose, and especially for the great purpose of framing the constitution of a State. If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live.” He animadverted upon the extreme looseness of the provisions in regard to the registration boards, and upon the great powers vested in them. The main objections to the bill were of course those which he had stated in the veto of March 2.
The passage of the supplementary reconstruction act, and of a joint resolution providing for the expenses involved in carrying out the provisions of the act, completed the work of this session of the 40th Congress. It was hoped that no further congressional action would be needed until the constitutions of the States should be submitted for examination and approval, preparatory to granting representation. But the importance of the measures and the avowed hostility of the President caused hesitation on the part of Congress as to adjourning till the regular December session. It was realized that if any loop-hole could be found by which the intention of the act could be evaded, Johnson would have no hesitation in taking advantage of it. To provide for such a contingency Congress passed a concurrent resolution which provided for a recess until July 3, and authorized the President of the Senate and the Speaker of the House to adjourn Congress until the first Monday in December if a quorum did not appear on July 3. In case everything appeared to be progressing with little friction, the members would not assemble; but if there should be any unfavorable developments, Congress could assemble independently of the President and enact legislation to remedy the difficulty.
4. July 3 found a quorum in both houses. The Attorney-General had rendered an opinion upon the act of March 2 which greatly hampered the work of the commanders of the districts. He advised the President that the act should be construed strictly, that the commanders should be allowed no powers beyond those specifically bestowed upon them. This prevented them from removing state officers, from making new laws for the government of the people, or from suspending the action of the state courts; and with state officers hostile to the federal authorities, and using every means to impede their work, the commanders found it impossible properly to discharge the duties assigned to them by the act.[173] The intent of the reconstruction acts obviously was to make the commanders of the districts commanders de facto as well as de jure. Consequently remedial legislation was deemed necessary, and Congress convened for the purpose of framing additional acts defining more precisely the intention of the preceding acts and the powers of the commanders.
A few days’ debate sufficed to bring Congress to an agreement as to the form of a second supplementary act. The bill passed both Houses on July 13, was vetoed on the 19th, and was immediately passed over the veto.[174] It declared[175] the true intent and meaning of the previous reconstruction acts to be that the governments then existing in the ten States specified in the acts were illegal, and that such governments, “if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress.” It therefore provided that the district commanders should have the power to suspend or remove all incumbents of offices of “any so-called State or the government thereof,” and to fill all vacancies in such offices, however caused. The same powers were granted to the General of the Army, who was also empowered to disapprove the appointments or removals made by the district commanders. The previous appointments by the district commanders were confirmed and made subject to the provisions of the act, and it was declared to be the duty of these commanders to remove from office all who were disloyal to the United States, or who opposed in any way the administration of the reconstruction acts. The registration boards were empowered and required “before allowing the registration of any person to ascertain, upon such facts or information as they can obtain, whether such person is entitled to be registered.”[176] No person was to be disqualified as a member of any board of registration by reason of race or color. The true intent and meaning of the oath prescribed in the supplementary act was fully explained, the most important portion of the explanation being that the words “executive or judicial office in any State” should be construed to “include all civil offices created by law for the administration of any general law of a State, or for the administration of justice.” The time of registration under the supplementary act was extended to October 1, 1867, in the discretion of the commander and it was provided that “the boards of registration shall have power, and it shall be their duty, commencing fourteen days prior to any election under said act, and upon reasonable notice of the time and place thereof, to revise, for a period of five days, the registration lists,” by striking out the names of those found to be disqualified, and adding the names of those qualified for registration. Executive pardon or amnesty should not qualify any one for registration who without it would be disqualified. District commanders were empowered “to remove any member of a board of registration, and to appoint another in his stead, and to fill any vacancy in such board.” The iron-clad oath was to be required of all registration boards, and of all persons elected or appointed to office in the military districts. Further possibility of unfavorable construction by the Attorney-General was prevented by the provision that “no district commander or member of the board of registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States.” The closing section, taken in connection with this, was fully as significant: “All the provisions of this act and of the acts to which this is supplementary shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.”
5. Reconstruction under the provisions of these three acts was rapidly accomplished in most of the States.[177] In some of the districts the commanders probably were too severe upon the whites, but in the main the intent of the acts was carried out with as little harshness as could well be expected. Those qualified were registered, conventions were held, and constitutions were framed and submitted to the people for their ratification according to the provisions of the acts. Alabama was the first State to vote upon a new constitution, and the Democrats, or Conservatives, as they styled themselves, took advantage of the fifth section of the act of March 23, which required at least one-half of the registered voters to vote on the question of ratification, as a condition of the validity of the election. Non-action seemed to be the easiest method of defeating the constitution, and they accordingly absented themselves from the polls, only 70,812, out of 165,812 registered voters, casting their ballots.[178]
6. There had been a strong minority in Congress opposed to the insertion of this section, who had foreseen this very outcome; and the action of Alabama converted the minority into a majority. A third supplementary bill was accordingly passed. Johnson neither signed nor vetoed it; and it became a law without his signature on March 11, 1868. It provided that in future all elections authorized by the act of March 23, 1867, “should be decided by a majority of the votes actually cast,” thus preventing any repetition of the Alabama experiment.[179]
7. The constitution submitted in Mississippi was rejected. Constitutions were not submitted in Texas and Virginia until a later date. The other States ratified their constitutions by large majorities, and on June 22 the act “to admit the State of Arkansas to representation in Congress” became a law.
8. Three days later the act admitting North Carolina, South Carolina, Louisiana, Georgia, Alabama and Florida to representation, became a law. Both bills were passed over the President’s vetoes, Johnson to the last refusing to recognize even in the most indirect way the constitutionality of the congressional plan.
Eight of the eleven States were now nominally reconstructed, but in fact they were only entering upon that most trying period of their history, the era of “carpet-bag government.” The whole period of reconstruction is marked by blindness and prejudice on both sides. The spirit of compromise could find no place in either’s plans. “What might have been” is always a fruitless subject of discussion; but any student of the three tumultuous years following the war cannot but see that the attitude of both the North and the South prevented the adoption of the plan of reconstruction which would with the least trouble and delay, have remoulded the unwieldy mass of liberated blacks into an orderly, progressive class of citizens. At the same time he can see that the divergence of views was inevitable and that it is impossible to say to one side “You were right,” and to the other “You were wrong.”