Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

CHAPTER VII.

The debate on the direct question of Reconstruction did not begin at so early a date in the Senate as in the House, but kindred topics led to the same line of discussion as that in which the House found itself engaged. During the first week of the session Mr. Wilson of Massachusetts had submitted a bill for the protection of freedman, designed to overthrow and destroy the odious enactments which in many of the Southern States were rapidly reducing the entire negro race to a new form of slavery. Mr. Wilson's bill provided that "all laws, statutes, acts, ordinances, rules and regulations in any of the States lately in rebellion, which, by inequality of civil rights and immunities among the inhabitants of said States is established or maintained by reason of differences of color, race or descent, are hereby declared null and void." For the violation of this statute a punishment was provided by fine of not less than five hundred dollars nor more than ten thousand dollars, and by imprisonment not less than six months nor more than five years.

In debating his bill Mr. Wilson declared that he had "no desire to say harsh things of the South nor of the men who have been engaged in the Rebellion. I do not ask their property or their blood; I do not wish to disgrace or degrade them; but I do wish that they shall not be permitted to disgrace, degrade or oppress anybody else. I offer this bill as a measure of humanity, as a measure that the needs of that section of the country imperatively demand at our hands. I believe that if it should pass it will receive the sanction of nineteen-twentieths of the loyal people of the country. Men may differ about the power or the expediency of giving the right of suffrage to the negro; but how any humane, just and Christian man can for a moment permit the laws that are on the statute-books of the Southern States and the laws now pending before their Legislatures, to be executed upon men whom we have declared to be free, I cannot comprehend."

Mr. Reverdy Johnson replied to Mr. Wilson in a tone of apology for the laws complained of, but took occasion to give his views of the status of the States lately in rebellion. "I have now," said Mr. Johnson, "and I have had from the first, a very decided opinion that they are States in the Union and that they never could have been placed out of the Union without the consent of their sister States. The insurrection terminated, the authority of the Government was thereby re-instituted; eo instanti they were invested with all the rights belonging to them originally—I mean as States. . . In my judgment our sole authority for the acts which we have done during the last four years was the authority communicated to Congress by the Constitution to suppress insurrection. If the power can only be referred to that clause, in my opinion, speaking I repeat with great deference to the judgment of others, the moment the insurrection was terminated there was no power whatever left in the Congress of the United States over those States; and I am glad to see, if I understand his Message, that in the view I have just expressed I have the concurrence of the President of the United States."

Mr. Sumner sustained Mr. Wilson's bill in an elaborate argument delivered on the 20th of December. There was an obvious desire in both branches of Congress and in both parties—those opposed to the President's policy and those favoring it—to appeal to the popular judgment as promptly as possible, and this led to a prolonged and earnest debate prior to the holidays, an occurrence unusual and almost unprecedented. Mr. Sumner declared that Mr. Wilson's bill was simply to maintain and carry out the Proclamation of Emancipation. The pledge there given was that the Executive Government of the United States, including the military and naval authority thereof, would recognize and maintain the freedom of such persons. "This pledge," said Mr. Sumner, "is without limitation in space or time. It is as extended and as immortal as the Republic itself, to that pledge we are solemnly bound; wherever our flag floats, as long as time endures, we must see that it is sacredly observed. The performance of that pledge cannot be intrusted to another, least of all to the old slave-masters, embittered against their slaves. It must be performed by the National Government. The power that gives freedom must see that freedom is maintained."

"Three of England's greatest orators and statesmen," continued Mr. Sumner, "Burke, Canning and Brougham, at successive periods unite in declaring, from the experience of the British West Indies, that whatever the slave-masters undertook to do for their slaves was always arrant trifling; that whatever might be its plausible form it always wanted the executive principle. More recently the Emperor of Russia, in ordering the emancipation of the serfs, declared that all previous efforts had failed because they had been left to the spontaneous initiative of the proprietors." . . . "I assume that we shall not leave to the old slave-proprietors the maintenance of that freedom to which we are pledged, and thus break our own promise and sacrifice a race." In concluding his speech Mr. Sumner referred to the enormity of the wrongs against the freedmen as something that made the blood curdle. "In the name of God," said he, "let us protect them; insist upon guarantees; pass the bill under consideration; pass any bill, but do not let this crying injustice rage any longer. An avenging God cannot sleep while such things find countenance. If you are not ready to be the Moses of an oppressed people, do not become their Pharaoh."

Mr. Willard Saulsbury of Delaware made a brief reply to Mr. Sumner, not so much to argue the points put forward by the senator from Massachusetts, not so much to deny the facts related by him or to discuss the principles which he had presented, as to announce that "it can be no longer disguised that there is in the party which elected the President an opposition party to him. Nothing can be more antagonistic than the suggestions contained in his Message and the speeches already made in both Houses of Congress." He adjured the President to be true and faithful to the principles he had foreshadowed, and pledged him "the support of two million men in the States which have not been in revolt, and who did not support him for his high office."

Mr. Cowan of Pennsylvania, one of the Republican senators who had indicated a purpose to sustain the President, was evidently somewhat stunned by Mr. Sumner's speech. He treated the outrages of which Mr. Sumner complained as exceptional instances of bad conduct on the part of the Southern people. "One man out of ten thousand," said Mr. Cowan, "is brutal to a negro, and that is paraded here as a type of the whole people of the South; whereas nothing is said of the other nine thousand nine hundred and ninety-nine men who treat the negro well." Mr. Cowan's argument was altogether inapposite; for what Mr. Sumner and Mr. Wilson had complained of was not the action of individual men in the South, but of laws solemnly enacted by Legislatures whose right to act had been recognized by the Executive Department of the National Government, and which had indeed been organized in pursuance of the President's Reconstruction policy,—almost in fact by the personal patronage of the President. The situation was one very difficult to justify by a man with the record of Mr. Cowan. He had been not merely a Republican before his entrance into the Senate but a radical Republican, taking ground in the campaign of 1860 only less advanced than that maintained by Mr. Thaddeus Stevens himself.

These debates in both Senate and House, at so early a period of the session, give a full and fair indication of the temper which prevailed in the country and in Congress. The majority of the members had not, at the opening of the session, given up hope of some form of co-operation with the President. As partisans and party leaders they looked forward with something of dismay to the rending of all relations with the Executive, and to the surrender of the political advantage which comes to the party and to the partisan from a close alliance between the Executive and Legislative Departments. On the re-assembling of Congress after the holidays a great change was seen and realized by all. It was feared by many, even of the most conservative, that the policy of Congress and the policy of the President might come into irreconcilable conflict, and that the party which had successfully conducted the Government through the embarrassments, the trials and the perils of a long civil war, might now be wrecked by an angry controversy between two departments of the Government, each owing its existence to the same great constituency,—the loyal people of the North.

Circumstances suggested the impossibility of a successful contest against the President and the Democratic party united. Even those elections which result, in the exuberant language of the press, in an overwhelming victory on the one side and an overwhelming defeat, on the other, are often found, upon analysis, to be based on very narrow margins in the popular result, the reversal of which requires only the change of a few thousand votes. This was demonstrated in many of the great States, even in the second election of Mr. Lincoln, when to the general apprehension he was almost unanimously sustained. From this fact it was well argued by Republicans in Congress that great danger to the party was involved in the impending dissension. Even the most sanguine feared defeat, and the naturally despondent already counted it as certain. Never before had so stringent a test of principle been applied to the members of both Houses. The situation was indeed peculiar. The great statesman who had been honored as the founder of the Republican party was now closely allied with the Administration. His colleague who had sat next him in the Cabinet of Mr. Lincoln, and who, in the judgment of his partial friends, was the peer of Mr. Seward both in ability and in merit, did not hesitate to show from the exalted seat of the Chief Justice his strong sympathy with the President.

The leading commercial men, who had become weary of war, contemplated with positive dread the re-opening of a controversy which might prove as disturbing to the business of the country as the struggle of arms had been, and without the quickening impulses to trade which active war always imparts. The bankers of the great cities, whose capital and whose deposits all rested upon the credit of the country and were invested in its paper, believed that the speedy settlement of all dissension and the harmonious co-operation of all departments of the Government were needed to maintain the financial honor of the nation and to re-instate confidence among the people. Against obstacles so menacing, against resistance so ominous, against an array of power so imposing, it seemed to be an act of boundless temerity to challenge the President to a contest, to array public opinion against him, to denounce him, to deride him, to defy him.

It is to the eminent credit of the Republican members of Congress that they stood in a crisis of this magnitude true to principle, firm against all the power and all the patronage of the Administration. No unmanly efforts to compromise, no weak shirking from duty, sullied the fame of the great body of senators and representatives. Even the Whig party in 1841, with Mr. Clay for a leader, did not stand so solidly against John Tyler as the Republican party, under the lead of Fessenden and Sumner in the Senate and of Thaddeus Stevens in the House, now stood against the Administration of President Johnson. The Whigs of the country, in the former crisis, lost many of their leading and most brilliant men,—a sufficient number indeed to compass the defeat of Mr. Clay three years later. The loss to the Republican party now was so small as to be unfelt and almost invisible in the political contests into which the party was soon precipitated. The Whigs of 1841 were contending only for systems of finance, and they broke finally with the President because of his veto of a bill establishing a fiscal agency for the use of the Government,—merely a National Bank disguised under another name. The Republicans of 1866 were contending for a vastly greater stake,—for the sacredness of human rights, for the secure foundation of free government. Their constancy was greater than that of the Whigs because the rights of person transcend the rights of property.

On the 12th of December Mr. Cowan had submitted a resolution requesting the President to furnish to the Senate information of "the condition of that portion of the United States lately in rebellion; whether the rebellion has been suppressed and the United States again put in possession of the States in which it existed; whether the United-States post-offices are re-established and the revenues collected therefrom; and also, whether the people of those States have re-organized their State governments; and whether they are yielding obedience to the laws and Government of the United States." Mr. Sumner moved an amendment, directing the President to furnish to the Senate at the same time "copies of such reports as he may have received from the officers or agents appointed to visit this portion of the Union, including especially any reports from the Honorable John Covode and Major-General Carl Schurz." The President's message, sent to the Senate a week later, in response to this resolution, was brief, being simply a statement of what had been accomplished by his Reconstruction policy, with an expression of his belief that "sectional animosity is surely and rapidly merging itself into a spirit of nationality; that representation, connected with a properly adjusted system of taxation, will result in a harmonious restoration of the relations of the States to the National Union." He transmitted the report of Mr. Schurz and also invited the attention of the Senate to a report of Lieutenant-General Grant, who had recently made a tour of the inspection through several of the States lately in rebellion.

The President evidently desired that General Grant's opinions concerning the South should be spread before the public. From the high character of the General-in-Chief and his known relations with the prominent Republicans in Congress, the Administration hoped that great influence would be exerted by the communication of his views. His report was short and very positive. He declared his belief that "the mass of thinking men of the South accept the present situation of affairs in good faith." At the same time he thought that "four years of war have left the people possibly in a condition not ready to yield that obedience to civil authority which the American people have been in the habit of yielding, thus rendering the presence of small garrisons throughout these States necessary until such time as labor returns to its proper channels and civil authority is fully established."

It was General Grant's opinion however that acquiescence in the authority of the General Government was so universal throughout the portions of the country he visited, that "the mere presence of a military force, without regard to numbers, is sufficient to maintain order." He urged that only white troops be employed in the South. The presence of black troops, he said, "demoralizes labor" and "furnishes in their camps a resort for freedmen." He thought there was danger of collision from the presence of black troops. His observations led him to the conclusion that "the citizens of the Southern States are anxious to return to self-government within the Union as soon as possible;" that "during the process of reconstruction they want and require protection from the Government;" that "they are in earnest, and wishing to do what they think is required by the Government, not humiliating to them as citizens;" and that "if such a course were pointed out they would pursue it in good faith." "The questions," continued General Grant, "heretofore dividing the people of the two sections—slavery and the right of secession—the Southern men regard as having been settled forever by the tribunal of arms. I was pleased to learn from the leading men whom I met that they not only accepted the decision as final, but now that the smoke of battle has cleared away and time has been given for reflection, that this decision has been a fortunate one for the whole country." He suggested that the Freedmen's Bureau be put under command of military officers in the respective departments, thus saving the expense of a separate organization. This would create a responsibility that would secure uniformity of action throughout the South. His general characterization of the Bureau was, that it tended to impress the freedman with the idea that he would not be compelled to work, and that in some way the lands of his former master were to be divided among the colored persons.

The supporters of the Administration considered General Grant's report a strong justification of their position towards the South, and they used it with some effect throughout the country. The popularity of the Lieutenant-General was boundless, and of course there was strong temptation to make the most of whatever might be said by him. Mr. Sumner immediately demanded the reading of the report of Mr. Schurz. He likened the message of the President to the "whitewashing" message of President Pierce with regard to the enormities in Kansas. "That," said he, "is its parallel." Mr. Doolittle criticized the use of the word "whitewashing," and asked Mr. Sumner to qualify it, but the Massachusetts senator declared that he had "nothing to modify, nothing to qualify, nothing to retract. In former days there was one Kansas that suffered under a local power. There are now eleven Kansases suffering as one: therefore, as eleven is more than one so is the enormity of the present time more than the enormity of the days of President Pierce." Later in the debate, Mr. Sumner indirectly qualified his harsh words, saying that he had no reflection to make on the patriotism or the truth of the President of the United States. "Never in public or in private," said he, "have I made such reflection and I do not begin now. When I spoke I spoke of the document that had been read at the desk. I characterized it as I though I ought to characterize it." The distinction he sought to make was not clearly apparent, the only importance attaching to it being that Mr. Sumner had not yet concluded that a bitter political war was to be made upon the President of the United States.

The character of Mr. Schurz's report at once disclosed the reason of Mr. Sumner's anxiety to have it printed with the report of General Grant. It was made after a somewhat prolonged investigation in the States of South Carolina, Georgia, Alabama, Mississippi, and the Department of the Gulf. Mr. Schurz's conclusions were that the loyalty of the masses and of most of the leaders in the South "consists of submission to necessity." Except in individual instances, he found "an entire absence of that national spirit which forms the basis of true loyalty and patriotism." He found that "the emancipation of the slaves is submitted to only in so far as chattel-slavery in the old form could not be kept up; and although the freeman is no longer considered the property of the individual master he is considered the slave of society, and all independent State legislation will share the tendency to make him such. The ordinances abolishing slavery, passed by the conventions under the pressure of circumstances, will not be looked upon as barring the establishment of a new form of servitude." "Practical attempts," Mr. Schurz continued, "on the part of the Southern people to deprive the negro of his rights as a freedman may result in bloody collision, and will certainly plunge Southern society into resistless fluctuations and anarchical confusion."

These evils, in the opinion of Mr. Schurz, "can be prevented only by continuing the control of the National Government in the States lately in rebellion, until free labor is fully developed and firmly established. This desirable result will be hastened by a firm declaration on the part of the Government that national control in the South will not cease until such results are secured." It was Mr. Schurz's judgment that "it will hardly be possible to secure the freedman against oppressive legislation and private persecution unless he be endowed with a certain measure of political power." He felt sure of the fact that the "extension of the franchise to the colored people, upon the development of free labor and upon the security of human rights in the South, being the principal object in view, the objections raised upon the ground of the ignorance of the freedmen become unimportant."

Mr. Schurz made an intelligent argument in favor of negro suffrage. He was persuaded that the Southern people would never grant suffrage to the negro voluntarily, and that "the only manner in which the Southern people can be induced to grant to the freemen some measure of self-protecting power, in the form of suffrage, is to make it a condition precedent to re-admission." He remarked upon the extraordinary delusion then pervading a portion of the public mind regarding the deportation of the freedmen. "The South," he said, "stands in need of an increase and not a diminution of its laboring-force, to repair the losses and disasters of the last four years. Much is said of importing European laborers and Northern men. This is the favorite idea among planters, who want such emigrants to work on their plantations, but they forget that European and Northern men will not come to the South to serve as hired hands on the plantations, but to acquire property for themselves; and even if the whole European emigration, at the rate of two hundred thousand a year, were turned into the South, leaving not a single man for the North and West, it would require between fifteen and twenty years to fill the vacuum caused by the deportation of freedmen."

Mr. Schurz desired not to be understood as saying that "there are no well-meaning men among those who are compromised in the Rebellion. There are many, but neither their number nor their influence is strong enough to control the manifest tendency of the popular spirit." Apprehending that his report might be antagonized by evidence of a contrary spirit shown in the South by the action of their conventions, Mr. Schurz declared that it was "dangerous to be led by such evidence into any delusion." "As to the motives," said Mr. Schurz, "upon which the Southern people acted when abolishing slavery (in their conventions) and their understanding of the bearings of such acts, we may safely accept the standard they have set up for themselves." The only argument of justification was that "they found themselves in a situation where they could do no better." A prominent Mississippian (General W. L. Brandon) said in a public card, according to Mr. Schurz, "My honest conviction is that we must accept the situation until we can once more get control of our own State affairs. . . . I must submit for the time to evils I cannot remedy." Mr. Schurz expressed his conviction that General Brandon had "only put in print what a majority of the people say in more emphatic language."

The report of Mr. Schurz was quoted even more triumphantly by the opponents of the President's policy than was General Grant's by its friends. It was a somewhat singular train of circumstances that produced the two reports, while the sequel, so far as the authors were involved, was quite as remarkable as the contradictory character of the views set forth. In the early summer (1865) when Mr. Johnson had yielded many of his preconceived views of reconstruction to the persuasions of Mr. Seward, but was still adhering tenaciously to some exactions which the Secretary of State deemed unwise if not cruel, it had occurred to the President to procure an accurate and intelligent report of the Southern situation by a man of capacity. Mr. Johnson held at that particular time a middle ground, measuring from the original point of his extreme antagonism towards the Southern rebels to the subsequent point of his extreme antagonism towards the Northern Republicans. His selection of Mr. Schurz for the special duty was deemed significant, because at that period of a political career consistent only in the frequency and agility of its changes Mr. Schurz happened to take an extreme position on the Southern question—one that was in general harmony with the views entertained and avowed by Mr. Sumner. Mr. Schurz, according to his own declaration, had communicated his "views to the President in frequent letters and conversations," and added an assurance, the truth of which all who know Mr. Schurz will readily concede—"I would not have accepted the mission had I not felt that whatever preconceived opinions I might carry with me to the South I should be ready to abandon or modify, as my perception of facts and circumstances might command their abandonment or modification."

Mr. Schurz started on his mission in the early part of July, and was engaged in traveling, observing and taking copious notes until the middle of the ensuing autumn. His report did not reach the President until the month of November. In the intervening months Mr. Johnson had been essentially and rapidly changing his views,—growing more and more favorable to the Southern leaders, less and less in harmony with the Republican leaders. He had gone far beyond the balancing-point of impartiality, where he stood when he was willing to intrust the task of Southern investigation to a man of the radical views which Mr. Schurz then professed. He was now altogether unwilling to submit the report of Mr. Schurz to Congress as an ex cathedra exposition. If not in some way counterbalanced it would necessarily be considered authoritative, and in a certain sense accredited by the Administration.

It was the President's desire to neutralize the effect of Mr. Schurz's representations, which led to the report of General Grant, the chief points of which have been already quoted. The Commander of the Army was necessarily in close relations with the Executive Department, and was recognized by the President as possessing an extraordinary popularity in the Northern States. During the months that had passed since the war closed General Grant had been received, wherever he had been induced to visit, with a display of enthusiasm never surpassed in our country. The people looked upon him simply as the illustrious soldier who had led the armies of the Union to victory. They attributed to him no political views except those of undying loyalty to his country, and they sought no party advantage from the use of his name. He had indeed made no partisan expressions, either during the war or since its close, on any subject whatever, except the necessity of maintaining the Union—and this was a partisan question only in consequence of the evil course pursued by the Democratic party during the closing years of the war.

On the civil and political aspects of the situation General Grant had not deemed it necessary to mature his views. He desired above all things the speedy restoration of the Southern States to the Union as the legitimate result of the victories in the field. But so far as action or even the exertion of any positive influence was involved, he confined himself strictly to his duties as Commander of the United-States Army. President Johnson saw an opportunity for turning the prestige of General Grant to the benefit of his Administration. Towards the close of November the general was starting South on a tour of military inspection "to see what changes were necessary in the disposition of the forces, and to ascertain how they could be reduced and expenses curtailed." The President requested him "to learn during his tour, as far as possible, the feelings and intentions of the citizens of the Southern States towards the National Government,"—a request with which the general complied in a perfunctory manner, giving merely the impressions formed in the rapid journey of a few days. He left Washington on the 27th of November and passed through Virginia "without conversing or meeting with any of its citizens." He spent one day in North Carolina, one in South Carolina and two in Georgia. This was the whole extent of the observation upon which General Grant had innocently given his views, without the remotest suspicion that his brief report was to figure largely in the discussions of Congress upon the important and absorbing question of reconstruction.

The divergent conclusions which were thus made to appear between the authors of the conflicting reports did not cease with this single exhibition. It was soon perceived that in the President's anxiety to parry the effect of Mr. Schurz's report he had placed General Grant in a false position,—a position which no one realized more promptly than the General himself. Further investigation led him to a thorough understanding of the subject and to a fundamental change of opinion. It led him to approve the reconstruction measures of the Republican party, and in a subsequent and more exalted sphere to continue the policy which these measures foreshadowed and implied. Mr. Schurz, on the other hand, received new light and conviction in the opposite direction, and from the point of extreme Republicanism he gradually changed his creed and became, first a distracting element in the ranks of the party, and afterwards one of its malignant opponents in a great national struggle in which General Grant was the leader,—the aim of which struggle was really to maintain the views which Mr. Schurz had, with apparent sincerity, endeavored to enforce in his report to President Johnson. These changes and alternations in the position of public men are by no means unknown to political life in the United States, but in the case under consideration the actors were conspicuous, and for that reason their reversal of position was the more marked.

An interesting and important case, relating to the mode of electing United-States senators, came up for decision at this session and led to a prolonged debate, which was accompanied with much personal feeling and no little acrimony.—In the winter and spring of 1865 the Legislature of New Jersey was engaged in the duty of choosing a senator of the United States to succeed John C. Ten Eyck, whose term was about to expire. After many efforts at election it had been found that no candidate was able to secure "a majority of the votes of all the members elected to both Houses of the Legislature," which was described in the rule adopted by the joint convention of the two Houses as the requisite to election. On the 15th of March the convention rescinded this stringent rule and declared that "any candidate receiving a plurality of votes of the members present shall be declared duly elected." The Legislature was composed of a Senate with twenty-one members and an Assembly with sixty members. The resolution giving to a plurality the power to elect was carried in the joint convention by a majority of one—forty-one to forty. In this vote eleven senators were in the affirmative and ten in the negative, and of the members of the House thirty were in the affirmative and thirty in the negative. It was therefore numerically demonstrated that the resolution could not have been carried with the two Houses acting separately. There would have been a majority of one in the Senate and a tie in the House.

Proceeding to vote under this new rule, John P. Stockton, the Democratic candidate, received forty votes, John C. Ten Eyck, the Republican candidate, thirty-seven votes, and four other candidates one vote each. Forty-one votes were thus cast against Mr. Stockton, but as he had secured a plurality he was duly elected according to the rule adopted by the joint convention.—Mr. Stockton was thirty-nine years of age at the time of his election. His family had been for several generations distinguished in the annals of New Jersey. His great-grandfather Richard Stockton was a member of the Continental Congress and was a signer of the Declaration of Independence; his grandfather Richard Stockton was a senator of the United States under the administrations of Washington and John Adams; his father was the well-known Commodore Robert F. Stockton, who was conspicuously effective as a naval officer in the conquest of California, and afterwards a senator of the United States. Mr. Stockton entered the Senate, therefore, with personal prestige and a good share of popularity with his party.

On the 20th of March, five days after the alleged election of Mr. Stockton, seven senators and thirty-one members of the Assembly forwarded to the Senate of the United States a protest against his admission, for the reason that he was not elected by a majority of the votes of the joint meeting of the Legislature. The substantial ground on which the argument in the protest rested, was that a Legislature means at least a majority of what constitutes the Legislature as convened at the moment of election. This had been, as they set forth at length, the undoubted law and the unbroken usage of New Jersey, and an election falling short of this primary requirement was necessarily invalid. "The Constitution of the United States direct," said this memorial, "that a senator must be chosen by the Legislature, and a minority does not constitute the Legislature." They illustrated the wrongfulness of the position by the reductio ad absurdum. "The consequences which are possible," argued the protestants, "from admitting the right to elect by a plurality vote, furnish a conclusive argument against it. If two members vote for one person and every other member, by himself, for different individuals, the person having two votes would have a plurality. Can it be that in such a case he would be senator? This indeed is an extreme case, but such cases test the propriety of legal doctrine, and many equally unjust but less extreme may easily be offered."

Mr. Stockton took his seat on the first day of the ensuing session (December 4, 1865) and was regularly sworn in. At the same time the protest was presented by Mr. Cowan of Pennsylvania and referred to the Judiciary Committee. That committee was composed of five Republicans and two Democrats, and was therefore politically biased, if at all, against Mr. Stockton. On the 30th of January, after a patient examination of nearly two months, the committee, greatly to the surprise of the Republican side of the chamber, reported that "Mr. Stockton was duly elected and entitled to his seat." The report was said to have been approved by every member of the committee except Mr. Clark of New Hampshire. The validity or invalidity of the election hinged upon the ability of the joint convention of the two branches to declare a plurality sufficient to elect. The committee decided that the convention possessed that power, and the report, drawn by Mr. Trumbull, argued the point with considerable ingenuity.

The subject came up for consideration in the Senate on the 22d of March (1866), Mr. Clark, the dissenting member of the committee, leading off in debate. He was ably sustained by Mr. Fessenden, who left little to be said, as was his habit in debating any question of constitutional law. He maintained that "the Legislature, in the election of a United-States senator, is merely the agent of the Constitution of the United States to perform a certain act. It is therefore under the control of no other power. No provision of the Constitution of New Jersey, directing the mode in which a senator shall be elected, or the course that shall be taken, or the rules of the proceeding, would bind in any way the Legislature which is to perform the act. Nor would any law of a previous Legislature have binding force. The existing Legislature is independent of every thing except the Constitution of the United States; but while it is thus independent and may disregard those provisions, being the mere agent of the Federal Constitution, still it must necessarily act as a Legislature in the performance of that duty. There must be a legislative act. . . . Whatever is done in relation to the election of a senator, must be done as a consequence of legislative action, otherwise it is no election by the Legislature. They vote to form a convention for the purpose of choosing a senator, and when they meet in convention that choice may be made. If there is legislative action previously that is sufficient. The convention can choose a senator because there has been legislative action which authorizes them to choose a senator in that form. The Legislature, when it votes to go into a convention of the two branches, may provide the mode of election. If it desires to change the ordinary and received law on the subject it may provide how the election shall be made. It may say that a plurality shall elect if it pleases. It may make any provision that it pleases, but it must be done by the Legislature. It must be the legislative body which gives the power that is to settle the mode of action. Now what are the facts in this case? There was no provision whatever made by the Legislature of the State of New Jersey as to the mode in which the senator should be chosen. The legislative action which authorized the convention was perfectly silent upon that subject. What then had the Legislature the right to conclude? Was it not this, and this only?—that when it authorized a body other than itself, though constituted of the same members, a convention to choose a senator, that body must proceed in the choice of a senator according to the universally received Parliamentary and common law upon the subject of elections. But this convention in New Jersey, without any legislative act, without any such authority conferred upon it, without any thing done on the subject by the Legislature which formed the body, undertook to say that they would change the received and acknowledged Parliamentary and common law in their mode of proceedings, and instead of acting according to that law, as the Legislature must have intended that it should do, would elect in a totally different manner from that prescribed by law, namely, by a plurality vote, for which they had no legislative sanction and for which there was no authority but their own will."

There was a long debate on the question, but the argument submitted by Mr. Fessenden was never refuted by his opponents, and it was practically repeated by every one who concurred in his general views. Mr. Stockton made an able presentation of his own case, perhaps better than any made for him, but he was never able to evade the point of Mr. Fessenden's argument, or even to dull it. The case came to a vote on the 23d of March, the first test coming upon an amendment to the committee's report, which declared Mr. Stockton "not entitled to a seat." This amendment was defeated—yeas 19, nays 21. The vote was then taken on the direct question of declaring him entitled to his seat. At the conclusion of the roll-call the yeas were 21, the nays 20, when Mr. Morrill of Maine rose and asked to have his name called. He voted in the negative and produced a tie. Thereupon Mr. Stockton rose and asked to vote. No objection being interposed his vote was received. The result was then announced 22 yeas to 21 nays, thereby confirming Mr. Stockton in his seat. Mr. Stockton, disclaiming any intention to reflect upon Mr. Morrill, intimated that he was under the obligation of a pair with Mr. William Wright (the absent colleague of Mr. Stockton) and therefore should not have voted. The two had undoubtedly been paired, but Mr. Morrill considered that the time had expired and acted accordingly. He was not only a gentleman of scrupulous integrity, but in this particular case he had taken counsel with his colleague, Mr. Fessenden, and with Mr. Sumner, safe mentors, and was advised by both that he had a clear right to vote. It cannot be denied however that Mr. Morrill's action created much ill-feeling on the Democratic side of the Senate.

Mr. Stockton's determination to vote must have been taken very hastily, without due reflection on his own part and without the advice of his political associates, who should have promptly counseled him against his unfortunate course. The Parliamentary position of the question, at the moment he committed the blunder of voting, was advantageous to him on the record. The Senate had defeated by a majority of two the declaration that he was not entitled to a seat, and the declaration in his favor, even after Mr. Morrill's negative vote, stood at a tie. Nothing therefore had been done to unseat him, and if he had left it at that point he would still have remained a member by the prima facie admission upon his regular credentials.

These proceedings took place on Friday and the Senate adjourned until Monday. Meanwhile the obvious impropriety of Mr. Stockton's vote upon his own case had deeply impressed many senators, and on Monday, directly after the Journal was read, Mr. Sumner raised a question of privilege and moved that the Journal of Friday be amended by striking out the vote of Mr. Stockton on the question of his seat in the Senate. He did this because, being on the defeated side, he could not move a reconsideration; but Mr. Trumbull and Mr. Poland, who had sustained Mr. Stockton's right to a seat, both offered to move a reconsideration, because they believed that he had no right to vote on the question. Mr. Poland made the motion and it was unanimously agreed to. Then, instead of urging the correction of the Journal of Friday, Mr. Sumner proposed a resolution declaring that "the vote of Mr. Stockton be not received in determining the question of his seat in the Senate," which was agreed to without a division. The original resolution being again before the Senate, Mr. Clark renewed his amendment declaring that John P. Stockton was not elected a senator from New Jersey, on which the yeas were 22 and the nays 21. As thus amended the resolution passed by 23 yeas to 20 nays. Mr. Riddle of Delaware voted with the majority for the purpose of moving a reconsideration on a succeeding day—a privilege from which he was excluded by the action of Mr. Clark of New Hampshire, who made the motion at once with the object of securing its defeat and thereby exhausting all power to renew the controversy. Mr. Clark of course voted against his own motion, and with its rejection Mr. Stockton ceased to be a member of the Senate.

More than half of those who sustained Mr. Stockton's right to his seat were Republicans, or had, until the current session of Congress, acted with the party. The majority of a single vote by which he was ejected would have been neutralized if Mr. Stockton's colleague could have been present. Mr. Wright was ill at his home in Newark and contradictory reports were made as to the time when he could probably be present. Some of the Republicans justified their urgent demand for a final vote on the belief entertained by them that Mr. Wright would never appear in the Senate again. As matter of fact he resumed his seat eight days after the decision of Mr. Stockton's case. His vote would have changed the result. The haste with which the question was brought to a decision can hardly be justified, and is a striking illustration of the intense party-feeling which had been engendered by the war. In a matter so directly affecting the interests and the feelings of the people of New Jersey it was certainly a hardship that the voice of the State was not heard. With one senator excluded from voting by parliamentary law and the other absent by reason of physical disability, Mr. Stockton had good ground for declaring that the Senate had not treated him with magnanimity or generosity. It is due to Mr. Stockton to say that under very trying circumstances he bore himself with moderation and dignity.

In the decision itself, however, there has been general acquiescence, and it led to an important reform in the manner of choosing United-States senators. The well-known Act of July 26, 1866, "regulating the time and manner of holding elections for senators in Congress," was the direct fruit of the Stockton controversy. Though it may not be perfect in all its details that law has done much to insure the fair and regular choice of senators. It has certainly accomplished a great deal by preventing various objectionable devices, which prior to its enactment had marked the proceedings of every senatorial election where the Legislature was almost equally divided between political parties. The reluctance to interfere with the supposed or asserted rights of States had too long delayed the needful exercise of National power. The Constitution provides that "the times, places and manner of holding elections for senators and representatives in Congress shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators."

There was a reluctance in the early administration of the Federal Government to assume any function which had been given alternatively to the States. It thus came to pass that many methods were developed in different States for choosing senators,—methods that widely differed in their essential characteristics. Hence there was variety, and even contrariety, where there should have been only unity and harmony. These divergent practices had been allowed to develop for seventy-seven years of the nation's life, when, admonished by the Stockton case of the latitudinary results to which loose methods might lead, Congress took jurisdiction of the whole subject. The exercise of this power was a natural result of the situation in which the nation was placed by the war. Previous to the civil conflict every power was withheld from the National Government which could by any possibility be exercised by the State Government. Another theory and another practice were now to prevail; for it had been demonstrated to the thoughtful statesmen who then controlled the Government, that every thing which may be done by either Nation or State may be better and more securely done by the Nation. The change of view was important and led to far-reaching consequences.

Alexander G. Cattell succeeded Mr. Stockton and served in the Senate with usefulness and high credit until March 4, 1871. He had been all his life engaged in commercial affairs, but had taken active part in politics and had held many positions of trust in his native State. In 1844, at twenty-eight years of age, he was a member of the Constitutional Convention of New Jersey and made his mark in its proceedings. His upright character, his recognized ability and his popular manners had given him a strong hold upon the people of his State.

William Wright, the colleague of Mr. Stockton, who was unable from illness to vote on his case, died the ensuing November (1866) at seventy-two years of age. He served two terms (1843-47) in the House of Representatives from the Newark district as a Whig, and was a zealous supporter of Mr. Clay in 1844. He was a wealthy manufacturer, largely engaged in trade with the South, and the agitation of the slavery question became distasteful to him. In 1850 he united with the Democratic party and was sent to the Senate in 1853.

Frederick Theodore Frelinghuysen was chosen as Mr. Wright's successor. He was in his fiftieth year when he entered the Senate, but was known as a distinguished member of the New-Jersey bar and had served as Attorney-General of his State. His grandfather, Frederick Frelinghuysen, was a senator during the first term of Jackson and ran for Vice-President on the ticket with Mr. Clay in 1844. The family came with the early emigration from Holland and soon acquired a hold upon the confidence of the people of New Jersey which has been long and steadily maintained.—Mr. Frelinghuysen soon attained prominence in the Senate, and grew in strength and usefulness throughout his service in that body.