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 XI.

The rejoicing over the result of the elections throughout the free States had scarcely died away when the Thirty-ninth Congress met in its second session (December 3, 1866). There was no little curiosity to hear what the President would say in his message, in regard to the issue upon which he had sustained so conclusive a defeat. He was known to be in a state of great indignation, and as he had broken forth during the campaign in expressions altogether unbecoming his place, there was some apprehension that he might be guilty of the same indiscretion in his official communication to Congress. But he was saved from such humiliation by the evident interposition of a judicious adviser. The message was strikingly moderate and even conciliatory in tone. The President re-argued his case with apparent calmness and impartiality, repeating and enforcing his position with entire disregard of the popular result which had so significantly condemned him. After rehearsing all that had been done in the direction of reconstruction, so far as his power could reach it, and so far as the Thirteenth Amendment of the Constitution was an essential part of it, the President expressed his regret that Congress had failed to do its duty by re-admitting the Southern States to representation.

"It was not," said he, "until the close of the eighth month of the session that an exception was made in favor of Tennessee by the admission of her senators and representatives." "I deem it," he continued, "a subject of profound regret that Congress has thus far failed to admit to seats loyal senators and representatives from the other States, whose inhabitants with those of Tennessee had engaged in the Rebellion. Ten States, more than one-fourth of the whole number, remain without representation. The seats of fifty members in the House and twenty members in the Senate are yet vacant, not by their own consent, nor by a failure of election, but by the refusal of Congress to accept their credentials. Their admission, it is believed, would have accomplished much towards the renewal and strengthening of our relations as one people, and would have removed serious cause for discontent upon the part of the inhabitants of those States." The President did not discuss the ground of difference between his policy and that of Congress, simply contenting himself with a restatement of the case, in declaratory rather than in argumentative form. He did not at all seem to realize, or even to recognize, the vantage ground which Congress had obtained by the popular decision in the recent elections. He apparently did not understand that every issue dividing the Executive and Legislative Departments of the Government had been decided in favor of the latter by the masters of both—decided by those who select and control Presidents and Congresses.

The President's position in pursuing a policy which had been so pointedly condemned, excited derision and contempt in the North, but it led to mischievous results in the South. The ten Confederate States which stood knocking at the door of Congress for the right of representation, were fully aware, as was well stated by a leading Republican, that the key to unlock the door had been placed in their own hands. They knew that the political canvass in the North had proceeded upon the basis, and upon the practical assurance (given through the press, and more authoritatively in political platforms), that whenever any other Confederate State should follow the example of Tennessee, it should at once be treated as Tennessee had been treated. Yet, when this position had been confirmed by the elections in all the loyal States, and was, by the special warrant of popular power, made the basis of future admission, these ten States, voting upon the Fourteenth Amendment at different dates through the winter of 1866-67, contemptuously rejected it. In the Virginia Legislature only one vote could be found for the Amendment. In the North-Carolina Legislature only eleven votes out of one hundred and forty-eight were in favor of the Amendment. In the South-Carolina Legislature there was only one vote for the Amendment. In Georgia only two votes out of one hundred and sixty-nine in the Legislature were in the affirmative. Florida unanimously rejected the Amendment. Out of one hundred and six votes in the Alabama Legislature only ten could be found in favor of it. Mississippi and Louisiana both rejected it unanimously. Texas, out of her entire Legislature, gave only five votes for it, and the Arkansas Legislature, which had really taken its action in the preceding October, gave only three votes for the Amendment.

This course on the part of the Southern States was simply a declaration of defiance to Congress. It was as if they had said in so many words: "We are entitled to representation in Congress, and we propose to resume it on our own terms; and therefore we reject your conditions with scorn. We will not consent to your Fourteenth Amendment to the Constitution. We will not consent that the freedom of the negro shall be made secure by endowing him with citizenship. We demand that without giving negroes the right to vote, they shall yet be counted in the basis of representation, thus increasing our political power when we re-enter Congress beyond that which we enjoyed before we rebelled, and beyond that which white men in the North shall ever enjoy. We decline to give any guarantee for the validity of the public debt. We decline to guarantee the sacredness of pensions to soldiers disabled in the War for the Union. We decline to pledge ourselves that the debts incurred in aid of the Rebellion shall not in the future be paid by our States. We decline, in brief, to assent to any of the conditions or provisions of the proposed amendment to the Constitution, and we deny your right to amend it without our consent."

The madness of this course on the part of the Southern leaders was scarcely less than the madness of original secession; and it is difficult, in deliberately weighing all the pertinent incidents and circumstances, to discover any motive which could, even to their own distorted view, justify the position they had so rashly taken. Strong as the Republican party had shown itself in the elections, it grew still stronger in all the free States, as each of the Confederate States proclaimed its refusal to accept the Fourteenth Amendment as the basis of their return to representation. The response throughout the North, in the mouths of the loyal people, was in effect: "If these rebel States are not willing now to resume representation on the terms offered, let them stay out until their anger ceases and their reason returns. If they are not willing to concede the guarantee of the Fourteenth Amendment, and to give that pledge to the country of their future loyalty and their common sense of justice, they shall find that we can be as resolute as they, and we shall insist on the right as stubbornly as they persist in the wrong." These were not merely the declamations of statesmen, or of the press, or of the popular speakers of the Republican party. They came spontaneously, as if by inspiration, from the mass of the people, and were based on that instinctive sense of justice which the multitude rarely fails to exhibit.

It was naturally inferred and was subsequently proved, that the Southern States would not have dared to take this hostile attitude except with the encouragement and the unqualified support of the President. He was undoubtedly in correspondence, directly and indirectly, with the political powers that were controlling the action of the insurrectionary States, and he was determined that the policy of Congress should not have the triumph that would be implied in a ratification of the Fourteenth Amendment by those States. Telegraphic correspondence clearly establishing the President's position, subsequently came to light. Governor Parsons of Alabama telegraphed him indicating that the rejection of the Fourteenth Amendment might be reconsidered by the Alabama Legislature, if in consequence thereof an enabling Act could be passed by Congress for the admission of the State to representation. Johnson promptly replied on the same day: "What possible good can be obtained by reconsidering the Constitutional Amendment? I know of none in the present posture of affairs, and I do not believe the people of the country will sustain any set of individuals in attempts to change the whole character of our Government by enabling Acts or otherwise. I believe on the contrary, that they will eventually uphold all those who have patriotism and courage to stand by the Constitution and who place their confidence in the people. There should be no faltering on the part of those who are honest in a determination to sustain the several co-ordinate Departments of the Government in accordance with the original design." It was evident from this disclosure that Johnson's hand was busy throughout the South, secretly as well as openly, and that he inspired the resolute obstinacy with which the insurrectionary States resisted the fair and magnanimous offers of Reconstruction made by Congress. The Rebel element of the South had gradually come to repose implicit confidence in Johnson, and this fact increased his power to sow dissension and produce discord. His stubborn and apparently malicious course at this time, was inspired in large part by a desire to be avenged on the Northern States and Northern leaders for the stinging rebuke administered to him in the recent election.

Sustained by the same popular sentiment which had given offense to the President, Congress did not doubt its duty or hesitate in its action. Its course, indeed, was firm to the point of severity. It met the spirit of defiance on the part of the South with an answer so decisive, that the misguided people of that section were rapidly undeceived as to their power to command the situation, even with all the aid the President could bring. The principal debates for the first two months of the session related wholly to the condition of the South, and on the 6th of February (1867) Mr. Stevens, from the Committee on Reconstruction, reported a bill which after sundry amendments became the leading measure of the Thirty-ninth Congress. In its original form the preamble declared that "whereas the pretended State governments of the late so-called Confederate States afford no adequate protection for life or property, but countenance and encourage lawlessness and crime; and whereas it is necessary that peace and good order should be enforced in said so-called Confederate States, until loyal State governments can be legally established; therefore be it enacted that said so-called Confederate States shall be divided into military districts, and made subject to the military authority of the United States, as hereinafter prescribed; and for that purpose Virginia shall constitute the first district, North Carolina and South Carolina the second district, Georgia, Alabama and Florida the third district, Mississippi and Arkansas the fourth district, and Louisiana and Texas the fifth district."

It was made the duty of the General of the Army to assign to the command of each of said districts an officer not below the rank of Brigadier-general, and to detail a sufficient force to enable such officer to perform his duties and enforce his authority within the district to which he was assigned. The protection of life and property, the suppression of insurrections, disorders, and violence, and the punishment of all criminals and disturbers of the public peace, were entrusted to the military authority, with the power to allow civil tribunals to take jurisdiction and try offenders; and if that was not sufficient in the officer's judgment, he was authorized to organize military commissions, "any thing in the constitutions and laws of these so-called Confederate States to the contrary notwithstanding." It was further declared that all legislative acts or judicial processes to prevent the proceedings of such tribunals, and all interference by "said pretended State governments with the exercise of military authority under this Act, shall be void and have no effect." The courts and judicial officers of the United States were forbidden to issue writs of habeas corpus, except under certain restrictions which further established the military authority over the people. Prompt trials were guaranteed to all persons arrested, cruel and unusual punishments were forbidden, and no sentence could be executed until it was approved by the officer in command of the district.

Mr. Stevens, in his speech upon introducing the bill, did not attempt to conceal its positive and peremptory character. "It provides," said he, "that the ten disorganized States shall be divided into five military districts; that the Commander of the Army shall take charge of them, through his officers not below the rank of Brigadier-general, who shall have the general supervision of the peace, quiet and protection of the people, loyal and disloyal, who reside within those precincts; and that to do so, he may use, as the law of nations would authorize him to do, the legal tribunals whenever he may deem them competent; but these tribunals are to be considered of no validity per se, of no intrinsic force, of no force in consequence of their origin; the question being wholly within the power of the conqueror, and to remain until that conqueror shall permanently supply their place with something else. That is the whole bill. It does not need much examination. One night's rest after its reading is enough to digest it."

Mr. Brandegee of Connecticut followed Mr. Stevens in a speech strongly supporting the measure. "Mr. Speaker, something must be done," said he. "The American people demand that we shall do something, and quickly. Already fifteen hundred Union men have been massacred in cold blood (more than the entire population of some of the towns in my district), whose only crime has been loyalty to your flag. . . . In all the revolted states, upon the testimony of your ablest generals, there is no safety to the property or lives of loyal men. Is this what the loyal North has been fighting for? Thousands of loyal white men, driven like partridges over the mountains, homeless, houseless, penniless, to-day throng this capital. They fill the hotels, they crowd the avenues, they gather in these marble corridors, they look down from these galleries, and with supplicating eye ask protection from the flag that hangs above the Speaker's chair—a flag which thus far has unfurled its stripes, but concealed the promise of its stars."

—Mr. Le Blond of Ohio declared that "the provisions of this bill strike down every important provision in the Constitution. You have already inaugurated enough here to destroy any government that was ever founded. . . . Now, Mr. Speaker, I do not predict any thing. I do not declare war, but as one American citizen I do prefer war to cowardly submission to a total destruction of the fundamental principles of our Government."

—He was followed by his colleague, Mr. Finck, who declared that "no member on this floor who understands the Constitution of the United States, and who is friend of our Government, will pretend to urge that we have any Constitutional power to pass this bill. . . . I declare it as my solemn conviction that no government can long continue to be free when one-third of its people and one-third of the States are controlled by military power."

—Mr. Bingham of Ohio, speaking for a more conservative type of republicanism than Mr. Stevens represented, begged gentlemen to "make haste slowly in the exercise of this highest possible power conferred by the Constitution upon the Congress of the United States. For myself, sir, I am not going to yield to the proposition of the chairman of the committee, for a single moment, that one rood of the territory within the line of the ten states enumerated in this bill is conquered territory. The Government of the United States does not conquer any territory that is under the jurisdiction of the Constitution."

—Mr. William Lawrence of Ohio said, "For myself I am ready to set aside by law all these illegal governments. They have rejected all fair terms of reconstruction. They have rejected the Constitutional amendments we have tendered them. They are engines of oppression against all loyal men. They are not republican in form or purpose. Let them not only be ignored as legal governments, but set aside because they are illegal." Mr. Lawrence suggested some amendments that would give to all the people the protection of the judiciary under National authority.

—Mr. Russell Thayer of Pennsylvania argued warmly for the bill, and said, "This measure will be of brief duration, and will be followed, as I am informed, by other measures, which will secure the permanent and peaceful restoration of these States to their proper and just position in the Union, upon their acceptance of such terms as are necessary for the future security of the country. When that is done, and when order is restored, and permanent protection is guaranteed to all the citizens of that section of the country, this measure will be abrogated and abandoned."

—Mr. Shellabarger argued in favor of the bill, and said in conclusion, "This measure, taken alone, is one which I could not support unaccompanied by provisions for the rapid and immediate establishment of civil government based upon the suffrages of the loyal people of the South. I could not support a military measure like this if it was to be regarded as at all permanent in its character. It is because it is entirely the initiative, because it is only the employment of the Army of the United States as a mere police force, to preserve order until we can establish civil government based upon the loyal suffrages of the people, that I can support this measure at all. If it stood by itself, I could not, with my notions of the possibility and practicability of establishing civil governments in the South, based upon loyal suffrage, vote for this bill."

—Mr. Dawes made the pertinent inquiry whether, "after the General of the Army has, under this bill, assigned a competent and trustworthy officer to the duties prescribed, there is any thing to hinder the President of the United States, under virtue of his power as Commander-in-Chief, from removing that officer and putting in his place another of an opposite character, thus making the very instrumentality we provide one of terrible evil?"

—Mr. John A. Griswold, who became the Republican candidate for governor of New York the ensuing year, earnestly opposed the bill. "By it," said he, "we are proceeding in the wrong direction. For more than two years we have been endeavoring to provide civil governments for that portion of our country, and yet by the provisions of this bill we turn our backs on our policy of the last two years, and by a single stride proceed to put all that portion of the country under exclusively military control. . . . For one, I prefer to stand by the overtures we have made to these people, as conditions of their again participating in the government of the country. We have already placed before them conditions which the civilized world has indorsed as liberal, magnanimous, and just. I regret exceedingly that those very liberal terms have not been accepted by the South, but I prefer giving those people every opportunity to exhibit a spirit of obedience and loyalty."

—Mr. Henry J. Raymond opposed the bill in a vigorous speech. "Because we cannot devise any thing of a civil nature adequate to the emergency," said he, "it is urged that we must fly to the most violent measure the ingenuity of man could devise. Let me remind gentlemen that this has been the history of popular governments everywhere, the reason of their downfall, their decadence, and their death."

—Mr. Garfield indicated his support of the measure if it could be amended. "But," said he, "I call attention to the fact that from the collapse of the Rebellion to the present hour, Congress has undertaken to restore the States lately in rebellion by co-operation with their people, and that our efforts in that direction have proven a complete and disastrous failure." Alluding to the fact that the Fourteenth Amendment had been submitted as the basis of reconstruction, Mr. Garfield continued, "The constitutional amendment did not come up to the full height of the great occasion. It did not meet all I desired in the way of guarantees to liberty, but if the rebel States had adopted it as Tennessee did, I should have felt bound to let them in on the same terms prescribed for Tennessee. I have been in favor of waiting to give them full time to deliberate and to act. They have deliberated. They have acted. The last one of the sinful ten has at last, with contempt and scorn, flung back in our teeth the magnanimous offer of a generous nation. It is now our turn to act. They would not co-operate with us in building what they destroyed. We must remove the rubbish, and build from the bottom. . . . But there are some words which I want stricken out of this bill, and some limitations which I wish added, and I shall at least ask that they be considered."

—Mr. Kasson objected that the bill was too sweeping in its provisions, that it affected the loyally disposed in the South with the same severity as it did the disloyally disposed. "Instead of erecting," said he, "this great military power over people of some portions of the South who are, in fact, at peace and observing law and order, our rule should be so flexible that we may apply martial law wherever peace and law and order do not prevail, without imposing it upon people whose subordination to the law renders military rule unnecessary."

—Mr. Boutwell said, "To-day there are eight millions and more of people, occupying six hundred and thirty thousand square miles of territory in this country, who are writhing under cruelties nameless in their character, and injustice such as has not been permitted to exist in any other country of modern times; and all this because in this capital there sits enthroned a man who, so far as the Executive Department of the Government is concerned, guides the destinies of the Republic in the interest of the rebels; and because, also, in those ten former States, rebellion itself, inspired by the Executive Department of this Government, wields all authority, and is the embodiment of law and power everywhere. . . . It is the vainest delusion, the wildest of hopes, the most dangerous of all aspirations, to contemplate the reconstruction of civil government until the rebel despotisms enthroned in power in these ten States shall be broken up."

—Mr. Banks asked for deliberation and delay in the discussion. He believed that "we might reach a solution in which the two Houses of Congress will agree, which the people of this country will sustain, and in which the President of the United States will give us his support. And if we should agree on a measure satisfactory to ourselves, in which we should be sustained by the people, and the President should resist it, then we should be justified in dropping the subject of reconstruction, and considering the condition of the country in a different sense." The allusion of General Banks, though thus veiled, was understood to imply the possible necessity of impeaching the President. It attracted attention because General Banks had been reckoned among the determined opponents of that extreme measure.

—Mr. Kelley of Pennsylvania declared that "the passage of this bill or its equivalent is required by the manhood of this Congress, to save it from the hissing scorn and reproach of every Southern man who has been compelled to seek a home in the by-ways of the North, from every homeless widow and orphan of a Union soldier in the South, who should have been protected by the Government, and who, despite widowhood and orphanage, would have exalted in the power of our country had it not been for the treachery of Andrew Johnson."

—Mr. Allison of Iowa said, "Believing as I do, that this measure is essential to the preservation of the Union men of the South, believing that their lives, property and liberty cannot be secured except through military law, I am for this bill."

—Mr. Blaine of Maine expressed his unwillingness to support any measure that would place the South under military government, if it did not at the same time prescribe the methods by which the people of a State could by their own action re-establish civil government. He therefore asked Mr. Stevens to admit an amendment declared that "when any one of the late, so-called, Confederate States shall have given its assent to the Fourteenth Amendment of the Constitution, and conformed its constitution and laws thereto in all respects, and when it shall have provided, by its constitution, that the elective franchise shall be enjoyed equally and impartially by all male citizens of the United States twenty-one years of age and upwards, without regard to race, color, or previous condition of servitude, except such as may be disfranchised for participating in the late rebellion, and when such constitution shall have been submitted to the voters of said State as then defined, for ratification or rejection, and when the constitution, if ratified by the popular vote, shall have been submitted to Congress for examination and approval, said State shall, if its constitution be approved by Congress, be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this bill shall be inoperative in said State."

—Mr. Blaine added, "It happened, Mr. Speaker, possibly by mere incident, that I was the first member of this House who spoke in Committee of the Whole on the President's message at the opening of this session. I then said that I believed the true interpretation of the election of 1866 was that, in addition to the proposed constitutional amendment, impartial suffrage should be the basis of reconstruction. Why not declare it so? Why not, when you send out this military police through the lately rebellious States, send with it that impressive declaration?"

—Mr. Schenck of Ohio earnestly urged that before calling the previous question, Mr. Stevens would allow a vote upon the amendment offered by Mr. Blaine. Mr. Stevens declined, and a motion by Mr. Blaine to refer the bill to the Judiciary Committee with instructions to report back the amendment, was defeated by ayes 69, noes 94. The bill was then passed by a vote of 109 to 55. The Republicans who voted against it were Baker of Illinois, Banks of Massachusetts, Davis of New York, Defrees of Indiana, Dodge of New York, Kuykendall of Illinois, Loan of Missouri, Randall of Kentucky, Francis Thomas and John L. Thomas, jun., of Maryland.

The bill reached the Senate on the 13th of February. On the 14th Mr. Williams of Oregon gave notice that he would offer an amendment, which was almost literally the same as that offered by Mr. Blaine in the House, but fearing that it might obstruct the passage of the bill he withdrew it. Mr. Reverdy Johnson of Maryland renewed it, with the remark that if it should be adopted it would make the bill very much less objectionable than it then was, and upon the amendment debate proceeded.

Mr. Stewart of Nevada warmly sustained the amendment, regretting that the senator from Oregon had changed his mind with regard to it. Mr. Stewart said that the history of military bills was that they were always temporary in the beginning. "But suppose the President of the United States approved it, or the next President, if you please, should like the bill, and should veto your measure repealing it, or suppose a bare majority in either House of Congress should like it, then you could not repeal it. It may be years after you desire to get rid of it before you can. I say, when you use the military for temporary purposes you should give the people of the South a chance to comply with all the requirements which you propose to make. If in the Blaine Amendment, as it is called, there are not sufficient guarantees, not enough conditions, then put in more and make it sufficient."

—Mr. Henderson of Missouri said, "If I understand the extent and scope of this bill, it will simply to give the sanction of Congress to military administration in the Southern States by the President. If there is any thing else in it, I desire to have it understood now, before we proceed any further. I am not exceedingly favorable to military government anywhere, and if I can get along without it in the Southern States I am anxious to do so. I am not pleased with it anywhere." Mr. Henderson expressed the opinion that the President of the United States could command General Grant in making the assignments of officers to the respective districts.

—Mr. Willard Saulsbury of Delaware declared that "there is not a single provision in the bill that is constitutional or will stand the test in any court of justice."

—Mr. Buckalew and Mr. Hendricks pointed out that the amendment, as Mr. Johnson had submitted it, made suffrage universal, just as the amendment had been framed in the House.

—Mr. Johnson explained that he had taken it as prepared by the senator from Oregon.

—Mr. Howard of Michigan objected to the amendment because it would permit the increase of representatives in Congress, and of Presidential electors, from the Confederate States.

—After a prolonged debate on the amendment offered by the senator from Maryland, it was agreed to lay it aside by common consent, that Senator Sherman might offer a substitute for the entire bill, the fifth section of which substantially embodied the amendment offered by the senator from Maryland and which had been known as the Blaine Amendment in the House. Mr. Sherman's substitute gave to the President his rightful power to control the assignment of officers of the army to the command of the military districts in the South. After debate the substitute of Mr. Sherman was passed by a party vote,—twenty-nine to ten.

When the bill went to the House it was violently opposed by Mr. Stevens and Mr. Boutwell. Mr. Boutwell said, "My objection to the proposed substitute of the Senate is fundamental and conclusive, because the measure proposes to reconstruct the State governments at once through the agency of disloyal men."

—Mr. Stevens said, "When this House sent the bill to the Senate it was simply to protect the loyal men of the Southern States. The Senate has sent us back an amendment which contains every thing else but protection. It has sent us back a bill which raises the whole question in dispute as to the best mode of reconstructing the States, by making distant and future pledges which this Congress has no authority to make and no power to execute."

—Mr. Blaine argued against Mr. Stevens's proposition to send the measure to a Conference Committee, and he begged those "who look to any measure that shall guarantee a republican form of government to the rebel states, with universal suffrage for loyal men," to vote for this bill as it came from the Senate.

—Mr. Wilson of Iowa sustained the bill. "Although it does not attain," said he, "all that I desire to accomplish, it embraces much upon which I have insisted, and seems to be all that I can get at this session. It reaches far beyond anything which the most sanguine of us hoped for a year ago."

—Mr. Bingham declared that "the defeat of this bill to-day is really a refusal to enact any law whatever for the protection of any man in that vast portion of our country which was so recently swept over by our armies from the Potomac to the Rio Grande."

—General Schenck spoke with great force in favor of the bill, answering the somewhat reckless objections of Mr. Stevens in the most effective manner.

—General Garfield replied to those who objected to the Senate provision giving the command of officers in the South directly to the President. He said, "I want this Congress to give the command to the President of the United States, and then, perhaps, some impeachment hunters will have a chance to impeach him. They will if he does not obey." He rebuked the gentlemen "who, when any measure comes here that seems almost to grasp our purpose, resist and tell us that it is a surrender of liberty. I remember that this was done to us at the last session, when everybody knows that if the Republican party lived, it must live by the strength of the Constitutional amendment, and when we agreed to pass it the previous question was waived to allow certain gentlemen to tell us that it was too low and too unworthy, too mean and too unstatesmanlike."

—Mr. Russell Thayer of Pennsylvania supported the bill. He said, "I see in this provision, as I believe, what the deliberate judgment of the American people will regard as ample guarantees for the future loyalty and obedience of the South. Those conditions are: first, that the Southern States shall adopt a constitution in conformity with the Constitution of the United States; second, that it shall be ratified by a majority of the people of the States, without distinction of race, color, or condition; third, that such constitution shall guarantee universal and impartial suffrage; fourth, that such constitution shall be approved by Congress; fifth, that the States shall adopt the Fourteenth Amendment to the Constitution; and sixth, that the amendment shall become a part of the Constitution of the United States. All this is required to be done before representation is accorded to the States lately in rebellion, and then no representative presenting himself for admission, can be received unless he can take the test oath."

—Mr. Eldridge of Wisconsin denounced the whole measure as most wicked and abominable. "It contains," said he, "all that is vicious, all that is mischievous in any of the propositions which have come either from the Committee on Reconstruction or from any gentleman upon the other side of the House."

—Mr. Elijah Hise of Kentucky declared that, "under such a system as this bill proposes, the writ of habeas corpus cannot exist, because even if the civil tribunals are not entirely abolished, they will exist only at the will of the military tyrant in command."

—Mr. Davis of New York spoke of the danger of suddenly enfranchising the whole body of rebels. "The State of Kentucky," he said, "has enfranchised every rebel who has been in the service of the Confederate States. What to-day is the condition of affairs in that State? Why, sir, her political power is wielded by rebel hands. Rebel generals, wearing the insignia of the rebel service, walk the streets of her cities, admired and courted; while the Union officers with their wounds yet unhealed, are ostracized in political, commercial and social life."

—Mr. Niblack of Indiana, one of the leading Democrats of the House, thought the bill had been much improved by the action of the Senate. "Though," said he, "it still retains many of the first features to which I objected when it was before the House for discussion, it is not now properly a military bill, nor is it properly a measure of civil administration. It is a most extraordinary attempt to blend the two principles together."

When a vote was reached, the House rejected the Senate amendment—ayes 73, noes 98. This result was effected by a coalition of all the Democrats with a minority of extreme Republicans. But thirteen days of the session remained, and it looked as if by a disagreement of Republicans all legislation on the subject of Reconstruction would be defeated. Under the pressure of this fear Republican differences were adjusted, and the Senate and the House found common ground to stand upon by adding two amendments to the bill as the Senate had framed it. It was agreed, on motion of Mr. Wilson of Iowa, to add a proviso to the fifth section, in these words: "that no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible as a member of a convention to frame a constitution for any of said rebellious States, nor shall any such person vote for members of such convention." It was also agreed, on motion of Mr. Shellabarger, that "until the people of said rebel States shall be 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. . . . All persons shall be entitled to vote, and none others, who are entitled to vote under the fifth section of this act; and no person shall be eligible to any office under such provisional government, who shall be disqualified from holding office under the provisions of the Third Article of such Constitutional amendment." With these modifications both Senate and House passed the bill by a party vote. During the discussion in the Senate Mr. Doolittle moved that "nothing in this act shall be construed to disfranchise any persons in any of said States from voting or holding office who have received pardon and amnesty in accordance with the Constitution and Laws." The proposition received but eight votes. The bill went to the President for approval on the 20th of February, leaving but a small margin of time for passage over his veto if as anticipated he should decline to sign it. The decisive character of the measure had evoked fierce opposition, and this in turn had stimulated Republican advocacy to a degree of great earnestness.

On the 2d of March the President sent to the House, in which branch the bill had originated, a long veto message of very comprehensive character. He had summed up all the arguments that had been made against the measure in both Houses, and he arrayed them with greater strength than when they were originally presented. His argument against placing the States under military government was cogently stated. "This bill," said he, "imposes martial law at once, and its operation will begin as soon as the general and his troops can be put in place. The dread alternative between its harsh rule and compliance with the terms of this measure is not suspended, nor are the people afforded any time for free deliberation. The bill says to them, 'Take martial law first, and then deliberate.' And when they have done all that this measure requires them to do, other conditions and contingencies, over which they have no control, yet remain to be fulfilled before they can be relieved from martial law. Another Congress must approve the constitutions made in conformity with the law of this Congress, and must declare these States entitled to representation in both branches. The whole question thus remains open and unsettled, and must again occupy the attention of Congress; and in the mean time the agitation which now prevails will continue to disturb all portions of the people."

The President's veto reached the House on the afternoon of Saturday. On Monday, March 4th, at noon, Congress would expire by Constitutional limitation. The President had communicated his veto on the last day permitted by the Constitution, and it was generally believed that his motive for the postponement was to give the minority in one branch or the other the power to defeat the bill either by dilatory motions or by "talking against time." Mr. Le Blond and Mr. Finck or Ohio, and Mr. Boyer of Pennsylvania, frankly indicated their intention to employ all means within their power to compass this end. A system of parliamentary delay was thus foreshadowed, but was prevented by Mr. Blaine moving that the rules be suspended and a vote immediately taken on the question required by the Constitution; namely, "Will the House, on reconsideration, agree to the passage of the bill, the President's objection to the contrary notwithstanding?" The Speaker decided that the motion in this form cut off all dilatory proceedings. Mr. Finck appealed from the decision of the Chair, but only four members sustained him. The rules were suspended, and the House, by a vote of one hundred and thirty-five ayes to forty-eight noes, passed the bill over the veto of the President. The Senate concurred in the action of the House by ayes thirty-eight, noes ten; and the famous Reconstruction law, from which flowed consequences of great magnitude, was thus finally enacted against every effort of the Executive Department of the Government.(1)

The successive steps of this legislation have been given somewhat in detail because of its transcendent importance and its unprecedented character. It was the most vigorous and determined action ever taken by Congress in time of peace. The effect produced by the measure was far-reaching and radical. It changed the political history of the United States. But it is well to remember that it never could have been accomplished except for the conduct of the Southern leaders. The people of the States affected have always preferred as their chief grievance against the Republican party, that negro suffrage was imposed upon them as a condition of their re-admission to representation; but his recital of the facts in their proper sequence shows that the South deliberately and wittingly brought it upon themselves. The Southern people knew, as well as the members of Congress knew, that the Northern people during the late political canvass were divided in their opinion in regard to the requirements of reconstruction, but that the strong preponderance was in favor of exacting only the adoption of the Fourteenth Amendment as the condition of representation in Congress. It was equally plain to all who cared to investigate, or even to inquire, that if that condition should be defiantly rejected, the more radical requirements would necessarily be exacted as a last resort,—rendered absolutely necessary indeed by the truculence of the Southern States.

The arguments that persuaded the Northern States of the necessity of this step were simple and direct. "We are willing," said they, "that the Southern States shall themselves come gradually to recognize the necessity and the expediency of admitting the negro to suffrage; we are content, for the present, to invest him with all the rights of citizenship, and to except him from the basis of representation, allowing the South to choose whether he shall remain, at the expense of their decrease in representation, outside the basis of enumeration." It was the belief of the North that as the passions of the civil contest should die out, the Southern States, if not inspired by a sense of abstract justice, would be induced by the highest considerations of self-interest to enfranchise the negro, and thus increase their power in Congress by thirty-five to forty members of the House. It was the belief that when they should come to realize that the negro had brought to them this increased power and prestige in the National councils, they would treat him with justice and with fairness. It was, therefore, not merely with surprise, but with profound regret, and even with mortification, that the North found the South in an utterly impracticable frame of mind. They would do nothing: they would listen to nothing. They had been inspired by the President with the same unreasoning tenacity and stubbornness that distinguished his own official conduct. They believed that, even against the popular verdict in the North, the President would in the end prevail. They had unbounded faith in the power of patronage, and they constantly exhorted the President to turn every opponent of his policy out of office, and give only to his friends the honors and emoluments of the National Government. They had full faith that this would carry consternation to the Republican ranks, and would establish the President's power on a firm foundation.

Unless, therefore, the Loyal States were willing to allow the Rebel States to come back on their own terms, in a spirit of dictation to the Government of the Union, they were under the imperious necessity of providing some other basis of reconstruction than the one which the South had unitedly rejected. Congress was charged, in the name of loyalty, to see that no harm should come to the Republic, and the point was now reached where three ways were open: first, Congress might follow the Administration, and allow the States to come in at once without promise, without condition, without guarantee of any kind; second, it might adopt the plan of Mr. Stevens, which had just been narrowly defeated, and place the Southern States under military government, with no date assigned for its termination by National authority, and no condition held out by which the South itself could escape from it; third, it might place the Southern States temporarily under a military government, for the sake of preserving law and order and the rights of property, during the prescribed period of reconstruction—upon the basis that all loyal men, regardless of color or previous condition of servitude, should take part in the movement.

Reduced to the choice of these three methods, the considerate, well-pondered, conclusive judgment of the Republican party was in favor of the last named, and the last named was adopted. If, therefore, suffrage was prematurely granted to the negro; if, in consequence, harm came to the Southern States; if hardship was inflicted upon Southern people, the responsibility for it cannot be justly laid upon Northern sentiment or upon the Republican party. It is true, and was not denied, that the vast mass of the negroes thus admitted to suffrage were without property and without education, and that it might have been advantageous, if just treatment could have been assured them, that they should tarry for a season in a preparatory state. While it was maintained as an abstract proposition that the right of the negro to vote was well grounded, many thought it desirable, as Mr. Lincoln suggested, that at first only those who were educated and those who had served in the Union Army should be enfranchised. But the North believed, and believed wisely, that a poor man, an ignorant man, and a black man, who was thoroughly loyal, was a safer and a better voter than a rich man, an educated man, and a white man, who, in his heart, was disloyal to the Union. This sentiment prevailed, not without hesitation, not without deep and anxious deliberation; but in the end it prevailed with the same courage and with the same determination with which the party had drawn the sword and fought through a long war in aid of the same cause, for which the negro was now admitted to suffrage.

During the civil war the negro had, so far as he was able, helped the Union cause—his race contributing nearly a quarter of a million troops to the National service. If the Government had been influenced by a spirit of inhumanity, it could have made him terribly effective by encouraging insurrection and resistance on his part against his master. But no such policy was ever entertained in counsels controlled in the Cabinet by Seward and Chase and Stanton, or in operations in the field directed by Grant and Sherman and Sheridan. The negro was left to raise the crops that supplied the Confederate armies with bread, when a policy of cruelty, no worse than that of Andersonville and Belle Isle, might have made him a terror to the Southern population. The humane policy thus pursued would have been scorned by European warriors who have become the heroes of the world, but there is not a Northern man who does not look back with profound satisfaction upon the philanthropic determination that forbade the encouragement of a single insurrection, or the destruction of a single Southern life, except under the recognized and restricted laws of war.

Peace had now come, and the question was, whether the power of these four and a half millions of men should be continually used against the Northern States, against the loyalty which had saved the Union. Only three-fifths of their number, in the day when the Southern States were true to the Union, were admitted in the basis of representation. Should the disloyalty of the South which had failed to destroy the Government only by lack of power, be now rewarded by admitting the whole number of negroes into the basis of representation, and at the same time giving them no voice in the selection of representatives? Surely, if this were conceded, it would offer such a premium upon rebellion as no government guided by reason should confer; and, therefore, the question came by the instinct of justice, and with the precision of logic, to this point—the negro shall not be admitted into the basis of representation until he is himself empowered to participate in the choice of the representative. The North had hoped that the South would cordially accept the justice of this principle, but whether the South accepted it or not, the North resolved that it should become part of the organic law of the Republic.

As matter of historical truth which has been ingeniously and continuously, whether ignorantly or malignantly, perverted, this point cannot be too fully elaborated nor too forcibly emphasized:—The Northern states or the Republican party which then wielded the aggregate political power of the North, did not force negro suffrage upon the South or exact it as a condition of re-admitting the Southern States to the right and privilege of representation in Congress until after other conditions had been rejected by the South. The privilege of representation in Congress had in effect been tendered to the Southern States, upon the single condition that they would ratify the Fourteenth Amendment, which provided among other safeguards for the future, that so long as the negro was denied suffrage, he should not be included in the basis of Federal enumeration,—in other words, that the white men of the South should not be allowed to elect thirty-five or forty representatives to Congress, based on the negro population, in addition to the representatives duly apportioned to their own numbers. When all the Southern States—with the exception of Tennessee —declined to accept this basis of reconstruction by their rejection of the Fourteenth Amendment, they ought to have measured the consequences. The imperative question thenceforward was whether the loyal or the disloyal—the victorious Union or the defeated Confederacy —should prescribe the terms of Reconstruction.

The Northern States were thus compelled to consider whether they would unconditionally surrender to the Rebel element of the South or devise some other plan of reconstruction. At that point, in the order of time and in the order of events, and not until then, the just resolve was made by the Republicans to reconstruct the South on the basis of Loyalty, regardless or race or color. By refusing to co-operate with the Republicans in the work of rehabilitating their States, the Southern rebels forced the Northern States to make impartial suffrage the corner-stone of the restored Union. The South had its choice, and it deliberately and after fair warning decided to reject the magnanimous offer of the North and to insist upon an advantage in representation against which a common sense of justice revolted. The North, foiled in its original design of reconstruction by the perverse course of the South, was compelled, under the providence of the Ruler of Nations, to deal honestly and justly with the colored people. It was the insane folly of the South, in drawing the sword against the life of the Nation, that led irresistibly to the abolition of slavery. In a minor degree the folly was now repeated, in resisting the mode of Reconstruction first tendered, and thus forcing Congress to confer civil rights and suffrage upon the emancipated slave. A higher than human power controlled these great events. The wrath of man was made to praise the righteous works of God. Whatever were the deficiencies of the negro race in education, for the duties and responsibilities of citizenship, they had exhibited the one vital qualification of an instinctive loyalty, and as far as lay in their power a steadfast helpfulness to the cause of the National Union.

As the strife between the Executive and Legislative Departments had grown in intensity, President Johnson naturally sought to increase his own prestige by the use of the patronage of the Government. To this end he had already removed certain conspicuous Republicans from office, especially those who had been recommended and were now sustained by senators and representatives prominently engaged in frustrating his plan of reconstruction. The wonder in the political world was, that the President had not resorted to this form of attack more promptly, and pursued it more determinedly. His delay could be explained only by what was termed his talent for procrastination, and to a certain indecision which was fatal to him as an executive officer. But as the breach between himself and Congress widened, as the bitterness between the partisans of the Executive and of the Legislative Departments grew more intense, the belief became general, that, as soon as Congress should adjourn, there would be a removal of all Federal officers throughout the Union who were not faithful to the principles, and did not respond to the exactions, of the Administration. Outside of his Cabinet, the President was surrounded by the class of men who had great faith in the persuasive power of patronage, and the pressure upon him to resort to its use was constant and growing. Inside of his Cabinet, there were men of the same belief, but their power was somewhat neutralized by the attitude of Mr. Seward, whose faith always lay in the strength of ideas, and not in the use of force, or in the temptation of personal advantage. Mr. Seward's influence had constantly tended to hold the President back from a ruthless removal of the whole body of officers who declined to take part against the policy of Congress.

According to long-accepted construction of the Constitution, the President's power of removal was absolute and unqualified. Appointment to office could not be made unless the consent of the Senate was given in each and every case—but the consent of the Senate had not been held as requisite to the removal of an officer. The Constitution was silent upon the subject, and the existence or non-existence of power in the Senate to prevent a removal from office had been matter of dispute from the foundation of the Government. Those who contended for the right of the President to remove without consulting the Senate were fortified by the early legislation of Congress and the early practice of the Executive. The First Congress of the Union had provided for officers whose appointment depended upon confirmation by the Senate as required by the Constitution, but whose removal was left in explicit terms to the President alone. The decision to that effect was made after debate in which Madison had strenuously contended for that construction, and his high authority gave to the conclusion great weight with subsequent administrations of the Government. But there was undoubtedly a divided opinion in the Congress that conceded it, and that division has continued among Constitutional lawyers and statesmen to this day. In 1835 Mr. Webster, "after considering the question again and again," made this declaration in the Senate: "I am willing to say that, in my deliberate judgment, the original decision was wrong. I cannot but think that those who denied the power in 1789 had the best of the argument. It appears to me, after thorough and repeated and conscientious examination, that an erroneous interpretation was given to the Constitution in this respect by the decision of the First Congress. . . . I have the clearest conviction that the Convention which formed the Constitution looked to no other mode of displacing an officer than by impeachment or the regular appointment of another to the same place. . . . I believe it to be within the just power of Congress to reverse the decision of 1789, and I mean to hold myself at liberty to act hereafter on that question as the safety of the Government and of the Constitution may require."

Mr. Webster's words would have exerted a far wider influence upon public opinion if his argument had not been made under the pressure of a partisan excitement caused by General Jackson's removal of officers who were not in sympathy with the measures of his Administration. He was effectively though not directly answered by the venerable ex-President Madison. In October, 1834, in a letter to Edward Coles, Mr. Madison said, "The claim of the Senate on Constitutional ground to a share in removal as well as appointment of officers is in direct opposition to the uniform practice of the Government from its commencement. It is clear that the innovation would not only vary essentially the existing balance of power, but expose the Executive occasionally to a total inaction, and at all times to delays fatal to the due execution of the laws." A year later, and only a few months before his death, Mr. Madison in a letter to Charles Francis Adams thus repeated his views: "The claims for the Senate of a share in the removal from office, and for the Legislature an authority to regulate its tenure, have had powerful advocates. I must still think, however, that the text of the Constitution is best interpreted by reference to the tripartite theory of Government, to which practice had conformed, and which so long and uniform a practice would seem to have established. The face of the Constitution and the journalized proceedings of the Convention strongly indicate a partiality to that theory then at the zenith of favor among the most distinguished commentators on the organization of political power." Chief Justice Marshall fortified the position of Mr. Madison, by declaring that the action of the First Congress on this question "has ever been considered as a full expression of the sense of the Legislature on this important part of the American Constitution."

Of the thirty-nine members of the Convention of 1787 who signed the Constitution, thirteen, including Mr. Madison, were members of the first Congress; Alexander Hamilton was Secretary of the Treasury under the new Government; and above all, General Washington, who had presided over the deliberations of the Convention, had attentively listened to every discussion, and had carefully studied every provision, was President of the United States. More than one-third of the members of the Constitutional Convention were therefore engaged in the Executive and Legislative Departments of the new Government in applying the organic instrument which they had taken so large a part in creating. The cotemporaneous interpretation was by those facts rendered valuable if not authoritative. Cotemporaneous interpretations of organic law are not always, it is true, to be regarded as conclusive, but they are entitled to the most careful and respectful consideration, and cannot be reversed with safety unless the argument therefor is unanswerable and the motive which suggests the argument altogether patriotic and unselfish. The familiar rule laid down by Lord Coke is as pertinent to-day as when first announced: "Great regard ought, in construing a law, to be paid to the construction which the sages, who lived about the time soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time when the law was made. Contemporania exposito est fortissima in legem."

Against the early decision of the founders of the Government, against the ancient and safe rule of interpretation prescribed by Lord Coke, against the repeatedly expressed judgment of ex-President Madison, against the equally emphatic judgment of Chief Justice Marshall, and above all, against the unbroken practice of the Government for seventy-eight years, the Republican leaders now determined to deprive the President of the power of removing Federal officers. Many were induced to join in the movement under the belief that it was important to test the true meaning of the Constitution in the premises, and that this could be most effectively done by directly restraining by law the power which had been so long conceded to the Executive Department. To that end Mr. Williams of Oregon on the first Monday of December, 1866, introduced a bill "to regulate the tenure of civil offices." It was referred to the Committee on Retrenchment, and reported back with amendment by Mr. Edmunds of Vermont, who thenceforward assumed parliamentary control of the subject.

The bill came up for discussion on the 10th day of January. Its first section provided that every person except members of the Cabinet, "holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to such office, shall be entitled to hold such office until a successor shall have been, in like manner, appointed and duly qualified, except as herein otherwise provided." The second section declared that "when any officer shall, during the recess of the Senate, be shown by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become legally disqualified or incapable of performing the duties of his office; in such case, and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office, until the next meeting of the Senate, and until the case shall be acted upon by the Senate: and in such case it shall be the duty of the President, within twenty days after the first day of such meeting of the Senate, to report to the Senate such suspension, with the evidence and reasons for the same, and if the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who shall thereupon remove such officer, and by and with the advice and consent of the Senate appoint another person to such office; but if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office, and the powers of the person so performing its duties in his stead shall cease."

Mr. Howe wished to know why members of the Cabinet should be excepted. "Each one of those officers," he said, "is created by statute, and created not for the personal benefit of the Executive, but created for the benefit of the public service, just as much as a deputy postmaster or an Indian agent." Mr. Edmunds, in reply to Mr. Howe, said that the Committee, "after a great deal of consultation and reflection," had resolved to except members of the Cabinet from the scope of the proposed Act. He gave reasons therefor, which from the foundation of the Government have been considered conclusive—reasons founded on the personal and confidential relations necessarily existing between the President and his Constitutional advisers. The reasons did not satisfy Mr. Howe. He thought "the tenure of Cabinet officers should be under the control of law and independent of any undue exercise of Executive influence." He therefore moved to amend the bill so as to put the members of the Cabinet on the same basis as other civil officers—not removable by the President, except with the advice and consent of the Senate. But the Senate was decidedly averse to so radical a change in the practice of the Government, and Mr. Howe secured the votes of only eight senators to join him in support of his amendment.

Mr. Edmunds moved, subsequently, to amend the bill by the addition of several clauses, one declaring it a high misdemeanor for "any person, contrary to the provisions of this Act, to accept any appointment or employment in office, or to hold or attempt to hold, or exercise, any office or employment." The signing, sealing, countersealing, or issuing of any commission, or letter of authority, contrary to the provisions of the Act, was made punishable by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding five years, or by both. Various other provisions of great severity were incorporated, and were adopted after brief debate.

When the bill reached the House, every provision of it was readily agreed to except that which excluded Cabinet officers from its operation. An amendment offered by Mr. Williams of Pennsylvania to strike that out was defeated—ayes 76, noes 78. Later in the day, just as the bill was passing its engrossment, Mr. Farquhar of Indiana, having voted with the majority, moved to reconsider the vote by which the amendment was rejected. The vote was taken the ensuing day, and by the zealous work of the intervening night, the motion to reconsider prevailed—ayes 75, noes 69—and the amendment was at once adopted. The bill was then passed by a party vote—ayes 111, noes 38. When it was returned to the Senate, that body refused, by a decisive vote, to concur in the amendment which placed members of the Cabinet on the same basis with other officers respecting the President's power of removal. Upon a conference between the two branches on this disagreement, a substitute was adopted, declaring that the members of the Cabinet "shall hold their offices, respectively, for and during the term of the President by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate." Both Houses agreed to the bill in this form. Mr. Farquhar's change of mind and his motion to reconsider led to the incorporation in the bill of the provision whose alleged violation by President Johnson was the direct cause of his impeachment by the House of Representatives a year later.

The final action on the measure by the Senate was on the 20th of February, so that the President had the opportunity to endanger its passage by postponing the veto, and it was generally anticipated that he would do so. He communicated it, as in the case of the Reconstruction Bill, on the 2d of March. In reviewing the measure Mr. Johnson said: "In effect it provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law, without the advice and consent of the Senate of the United States. The bill conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States, is a principle which has been not more distinctly declared by judicial authority and judicial commentators, than it has been uniformly practiced upon by the Legislative and Executive Departments of the Government. . . . The question has often been raised in subsequent times of high excitement, and the practice of the Government has nevertheless conformed in all cases to the decision thus made. Having at an early period accepted the Constitution, in regard to the Executive office, in the sense in which it was interpreted with the concurrence of its founders, I have found no sufficient grounds in the arguments now opposed to that construction, or in any assumed necessity of the times, for changing those opinions. . . . For these reasons, I return the bill to the Senate, in which House it originated, for the further consideration of Congress which the Constitution prescribes. Experience, I think, has shown that it is the easiest, as it is also the most attractive, of studies to frame constitutions for the self-government of free states and nations; but I think that experience has equally shown that it is the most difficult of all political labors to preserve and maintain such free constitutions of self-government when once happily established."

The veto message was a very able document. In all official papers of importance the President appeared at his best. He had the inestimable advantage of Mr. Seward's calm temper and of his attractive and forcible statement of the proper argument. Few among the public men of the United States have rivaled Mr. Seward in the dignity, felicity, and vigor which he imparted to an official paper. No one ever surpassed him. In the veto message under consideration his hand was evident in every paragraph; and if it had been President Johnson's good fortune to go down to posterity on this single issue with Congress, he might confidently have anticipated the verdict of history in his favor. The delicate, almost humourous sarcasm in the closing words above quoted from the message, afford a good specimen of Mr. Seward's facility of stating the gravest of organic propositions in a form attractive to the general reader. He wrote as one who felt that in this particular issue with Congress, whatever might be the adverse votes of the Senate and House, time would be sure to vindicate the position of the President. But the message did not arrest the action, indeed scarcely the attention, of Congress, and the bill was promptly, even hurriedly, passed over the veto,—in the Senate by 35 ayes to 11 noes; in the House by 133 ayes to 37 noes.

The bill was not passed, however, without considerable misgiving on the part of many members of both Houses who voted for it. It was an extreme proposition,—a new departure from the long-established usage of the Federal Government, and for that reason, if for no other, personally degrading to the incumbent of the Presidential office. It could only have grown out of the abnormal excitement created by the dissensions between the two great Departments of the Government. The bitterness engendered resembled that which always distinguishes a family quarrel. The measure was resorted to as one of self-defense against the alleged aggressions and the unrestrained power of the Executive Department. But the history of its operation, and of its subsequent modification, which practically amounted to its repeal, is one to which the Republican party cannot recur with any sense of pride or satisfaction. As matter of fact, a Republican Congress, largely composed of the same members who had enacted the law, indirectly confessed two years later that it could not be maintained. Regarded only in the light of expediency at the time, it could readily be demonstrated (as was afterwards admitted by candid men among those who supported it) to be a blunder,—a blunder all the more censurable because the Act was not needed to uphold the Reconstruction policy of Congress, in aid of which it was devised. That policy relied for its vindication upon the judgment and conscience of the loyal people, and it was an impeachment of their good faith to say that either could be affected by the removal of one man, or of many men, from official position under the Federal Government. The Reconstruction policy stood upon a strong and enduring principle,—as strong and enduring as the question of human right,—and was sustained with vigor and enthusiasm by the great party which was responsible for the war measures that had saved the Union. The same sentiment did not attach to the Tenure-of-office Law, which indeed was only the cause of subsequent humiliation to all who had taken part in its enactment.(2)

It was part of the fixed policy of Mr. Lincoln's administration to increase the number of distinctively free States from that section of the public domain which had never been in any way contaminated by the institution of slavery. To this end he was anxious to encourage the settlement of the Territories already organized west of the Missouri river. To provide for the still more rapid creation of North-western States, two additional Territories, Idaho and Montana, were organized from the area which had been included in Dakota. Mr. Lincoln's evident motive was to place beyond the calculation, or even the hope of the disloyal States the possibility of ever again having sufficient political power to compete in the Senate for the mastery of the Republic. He was persuaded that the sectional contest would be fatally pursued as long as the chimerical idea of equality in the Senate should stimulate Southern ambition. He knew, moreover, that the war could not close with victory for the Union, without the proposal of certain changes in the Constitution, and to this end it was desirable that the loyal States should as early and as nearly as possible constitute three-fourths of the entire Union. With this motive, he had towards the close of his first term, somewhat prematurely it was believed by many, stimulated the desire of the settlers of Nevada for a State government. He had faith not only in the justice, but in the popularity, of this policy; for he took pains to issue the proclamation declaring Nevada a State in the Union only a week preceding the Presidential election of 1864, when the existence of his administration was at stake, and when every public measure was scanned with special scrutiny.

Nebraska had been organized as a Territory in the original Douglas bill repealing the Missouri Compromise, in 1854; and Colorado was made a Territory the week preceding Mr. Lincoln's first inauguration. After Nevada, these Territories offered the earliest promise of becoming States. They were both parts of the old Louisiana purchase from France, and had in popular estimation and in the classification of the earlier geographers been included within the borders of the Great American Desert. But settlers has swarmed upon the plains of Nebraska, and the waving fields of grain and the innumerable herds of cattle browsing on her rich pasture-land soon dispelled that misconception, and gave promise of the prosperous development which the State has since attained. Earlier than the farmer or the grazier could reach its soil, Colorado was settled by an intelligent mining population, whose industry has extracted from her mountains more than two hundred millions of the precious metals, contributed in the last quarter of a century to the wealth of the world. Encouraged by the policy of the Administration, and especially by the precedent of Nevada, both Territories sought an enabling Act from Congress in the winter of 1862-63. Neither succeeded at the time; but in the next Congress a bill "to enable the people of Colorado to form a constitution and State government, and for the admission of said State into the Union on an equal footing with the original States," passed both Houses, and was approved by Mr. Lincoln of the 21st of March, 1864. A month later (April 19, 1864) a similar bill for Nebraska was signed by the President.

It appeared that the citizens of each Territory who had been forward in asking an enabling Act from Congress were somewhat in advance of popular sentiment, for when the question of forming a State government was submitted to direct vote in Colorado it was rejected, and the same action was taken in Nebraska. But soon afterward (in the year 1865) the movement for a State government gained strength in both Territories. Through duly organized conventions and the formation and adoption of State constitutions, the people indicated a willingness, if not an active desire, to be admitted to the Union. In Colorado 5,895 votes were cast when the constitution was submitted, and the majority in favor of the new State was but 155. William Gilpin was elected governor, and John Evans and Jerome W. Chaffee were chosen senators of the United States. But when the new senators reached Washington (early in the year 1866) they found that the policy of the National Administration on the subject of new States had changed, and that instead of a friend in the White House, as Mr. Lincoln had steadily proved, they had a determined opponent in the person of Mr. Johnson. Congress with reasonable promptness passed the bill in both Houses for the admission of Colorado, though it was opposed by the more radical class of Republicans because negroes were excluded from the right of suffrage. It is a striking illustration of the rapid change of public sentiment, that in the winter and early spring of 1866 a bill containing that provision could pass a Congress in which the Republicans had more than two-thirds of the membership of each branch, whereas in less than a year negro suffrage was required as the condition of re-admission of the Southern States.

The Colorado bill passed the Senate by a vote of nineteen to thirteen, and the House by eighty-one to fifty-seven. It reached the President on the fifth day of May and was promptly vetoed. Mr. Johnson did not believe that the establishment of a state government was necessary to the welfare of the people of Colorado; "nor was it satisfactorily established that a majority of the citizens of Colorado desire, or are prepared for, an exchange of the Territorial for a State government." He thought that Colorado, instead of increasing, had declined in population. "At an election for a Territorial Legislature in 1861, 10,580 votes were cast; at an election in 1864 only 6,192 votes were cast; while at the election of 1865 only 5,905 votes have been cast." He said, "I regret this apparent decline of population in Colorado, but it is manifest that it is due to emigration which is going out from that Territory into other regions of the United States, which either are in fact, or are believed to be by the citizens of Colorado, richer in mineral wealth and agricultural resources." The President commented upon the injustice of creating from so small a population a State with senatorial strength equal to that of the largest State in the Union. He thought Colorado did not have a population of more than twenty thousand persons "whereas one hundred and twenty-seven thousand are required in other States for a single representative in Congress." The President did not neglect his one constant theme—the unrepresented condition of the Southern States. He insisted that "so long as eleven of the old States remain unrepresented in Congress, no new State should be prematurely and unnecessarily admitted to a participation in the political power which the Federal Government wields." The strong minority which had opposed the Colorado bill gave no hope of overriding the President's veto, which was simply laid on the table and ordered to be printed.

The bill for the admission of Nebraska came later in the session, not being introduced for consideration until the 23d of July. It passed very promptly by a vote of twenty-four to eighteen in the Senate, and by sixty-two to fifty-two in the House. As in the case of Colorado the constitution excluded the negro from the right of suffrage, and for that reason a very considerable proportion of the Republicans of each branch voted against the bill. The vote was so close in the House that but for a frank and persuasive statement made by Mr. Rice of Maine, from the Committee on Territories, it would have been defeated. He pictured the many evils that would come to the people of Nebraska, now more than sixty thousand in number, if they could not do for themselves, as a State, many things which the National Government would not do for them as a Territory. Under the influence of his speech a majority of ten was found for the bill, but Congress adjourned the day after it was finally passed by both branches, and the President quietly "pocketed" the bill; and thus the earnest and prolonged effort to create two new States came to naught for the time.

Nothing daunted by the President's veto of the bill admitting Colorado, and his pocketing the bill admitting Nebraska, Mr. Wade promptly introduced both bills anew, at the beginning of the second session of the Thirty-ninth Congress. The case of Nebraska was, in popular judgment, stronger than the case of Colorado. The population was larger, and being devoted to agriculture, was naturally regarded as more stable than that of Colorado, which was based principally upon the somewhat fortuitous discovery of mines of the precious metals. But there was an admitted political embarrassment in regard to both Territories, the principal debate on which occurred when the bill admitting Nebraska was under consideration. Congress was, at the time, engaged in passing the Reconstruction Act for the States lately in rebellion, and had made it imperative that negroes should be endowed with suffrage by those States. While insisting on this condition for the Southern States it was obviously impossible for Congress to admit two Northern States with constitutions prohibiting suffrage to the negro. In the months of the Congressional vacation public opinion in the North had made great strides on this question.

A minority of Republicans were intent on sending the bill back and having the question of negro suffrage submitted for popular decision, but in the opinion of the majority of the party this was a needless postponement of a pressing question, and all propositions looking to such postponement were rejected. A final compromise of views was reached, by inserting in the Act of admission an additional section declaring "that this Act shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise or of any other right to any person, by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition that the Legislature of said State, by a solemn public act, shall declare the assent of said State to the said fundamental condition and shall transmit to the President of the United States an authentic copy of said Act." When notified of this solemn public act by the Legislature, it was made the duty of the President to announce the fact by proclamation, and thereupon the admission of the State to the Union, without further proceedings of Congress, was to be considered complete. The objection to this compromise by those who opposed it and by others who reluctantly supported it, was that it did not have the force of Organic Law; that the proposed act of the Legislature would not be rendered any more binding by reason of being called a solemn act, and that it might be repealed by any subsequent Legislature. Much argument was expended upon this point, but the general judgment was that an act of the Legislature, made in pursuance of such an understanding with Congress, was in the nature of a compact which, without discussing the question of power, would certainly be regarded as binding upon the State. With this understanding, Congress passed a bill admitting the State, but the vote in both branches was divided on the line of party.

This action was accomplished late in January (1867), and on the 29th of that month the President vetoed the bill. He objected especially to the clause just referred to, because it was an addition to the enabling Act which Congress had no moral right to make, and because it required of Nebraska a condition not theretofore required of States, —contradicting flatly the declaration of the first section of the bill, in which the State was declared to be "admitted into the Union upon an equal footing with the original States in all respects whatever." He argued that the imposition of the condition prescribed in the bill, and its acceptance by the Legislature, was practically a change in the organic law of the State without consulting the people, which he regarded as an innovation upon the safe practice of the Government. But his arguments fell upon unwilling ears, and the bill was passed over the veto by a vote of thirty to nine in the Senate, and in the House by one hundred and twenty to forty-three.

Colorado did not fare so well. The bill was passed by both branches of Congress, though not with so full a vote nor with so much confidence in the propriety and necessity of the measure. Precisely the same condition in regard to suffrage was inserted as in the case of the Nebraska bill. It met with a prompt veto, more elaborately argued and presented with more confidence by the President than in the case of Nebraska. He said, "I cannot perceive and reason for the admission of Colorado that would not apply with equal force to nearly every other Territory now organized, and I submit whether, if this bill becomes a law, it will be possible to resist the logical conclusion that such Territories as Dakota, Montana, and Idaho must be received as States whenever they present themselves, without regard to the number of inhabitants they may respectively contain." He dwelt forcibly upon the necessity of requiring population enough to secure one representative. "The plain facts of our history," said he, "will attest that the leading States admitted since 1845, namely, Iowa, Wisconsin, California, Minnesota, and Kansas (including Texas, which was admitted in that year), have all come in with an ample population for one representative, and some of them with nearly, if not quite, enough for two."

There were really no facts before Congress tending to prove the existence of those great resources which have since advanced Colorado so rapidly in population and prosperity. Little was known of the Territory. It was several hundred miles beyond the Western border of continuous settlement, and the men who came from it were regarded as adventurous pioneers on the very outposts of civilization. Under this condition of affairs it is not strange that the Senate failed to pass the bill for the admission of the State over the veto of the President. Edmunds, Fessenden, Foster, Grimes, Harris, Morgan, and some other Republicans, less prominent, voted in the negative. The result was twenty-nine in favor of passing it over the veto, and nineteen against. Defeated in the Senate the bill did not go to the House, and the admission of Colorado was by this action postponed for several years.

The President gave specious reasons for his vetoes, especially in the case of Colorado, but they did not conceal the fact that his position was radically different from that which Mr. Lincoln had held—radically different from the position which he would himself had assumed if he had maintained in good faith the principles he had professed when he secured the suffrages of the Republican party for the Vice-Presidency. Having allied himself with the South and compromised his patriotic record by espousing the cause he had so hotly opposed, he naturally adopted all its principles and its worst prejudices. For nearly half a century the leading exponents of Southern sentiment had been envious of the growth of the free North-West, and so far as lay in their power they had obstructed it—being unwilling for a long period to admit one of its giant Territories to the Union until its power could be politically offset by one of less population and wealth in the South. Mr. Johnson in his new associations at once adopted this jealous and ungenerous policy—which had indeed lost something of its significance by the abolition of slavery, but was still stimulated by partisan considerations and was invariable hostile to the admission of a Republican State. The most bitter prejudices could not blind Mr. Johnson or the Southern leaders to the inevitable growth of free commonwealths in the North-West, but it seemed to be an object with both to keep them from participation in the government of the Union so long as possible, and to accomplish this end by every expedient that could be adopted.

An Act in relation to the President's power to grant pardon and amnesty, passed at this session, was more important in its spirit than in its results. By the thirteenth section of the Confiscation Act of July 17, 1862, the President was authorized, at any time, by proclamation, "to extend to any persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty." Under a suspension of the rules, the House of Representatives, by a vote of one hundred and twelve to twenty-nine, repealed this section on the first day of the session (December 3, 1866). There was anxiety on the part of many, under the lead of Mr. Chandler of Michigan, to repeal it so promptly in the Senate, but it was referred to the Judiciary Committee and passed after discussion. Mr. Chandler said, "It is a notorious fact, as notorious as the records of a court, that pardons have been for sale around this town, for sale by women—by more than one woman. The records of your court in the District of Columbia show this. Any senator who desires this disgraceful business to go on, of course desired that this clause shall remain."

The repeal of the clause, however, would not take from the President his constitutional power of pardoning, but in the judgment of Mr. Trumbull, who had charge of the bill in the Senate, it took from him the power to pardon by proclamation and confined him to his right of issuing individual pardons. The difference between pardon and amnesty was defined by Mr. Trumbull. Pardon is an act of mercy extended to an individual. It must be by deed. It must be pleaded. According to Chief Justice Marshall, it is essential to its validity that it be delivered to the person pardoned. But an amnesty is a general pardon by proclamation. Mr. Trumbull thought the repeal would be a "valuable expression of opinion on the part of Congress that general pardons and restoration of property will not be continued, and if they President continues to pardon rebels and restore their property by individual acts under the Constitution, let him do so without having the sanction of Congress for his act."

Mr. Reverdy Johnson took issue with Mr. Trumbull. He maintained that the President's powers to grant pardons, as conferred by the Constitution, had not been affected by the provision of law whose repeal was now urged. He declared that the power of the President "to grant reprieves and pardons for offenses against the United States" was as broad, as general, as unrestricted as language could make it. He could find no logical ground for the distinction made by Mr. Trumbull between individual pardons and general amnesties by proclamation—in illustration of which he said President Washington had by proclamation pardoned the offenders engaged in the Whiskey Insurrection. The enactment of the provision had not, in Mr. Johnson's opinion, enlarged the President's pardoning power, and its repeal would not restrict it.

It was thought that a majority of the Senate concurred in Mr. Johnson's interpretation of the Constitution, but they passed the bill as a rebuke to the scandalous sale of pardons which Mr. Chandler had brought to the attention of the Senate. This vile practice had no doubt been pursued to some extent, but only by a class of "middle men" who had neither honor nor sensibility. They had in some form the opportunity to secure the interposition of men who could reach the ear of the President or the Attorney-General. It is hardly necessary to add that neither of those high officials was in the remotest degree reflected upon even by their bitterest opponents. However wrong-headed Mr. Johnson and Mr. Stanbery might have been considered on certain political issues, the personal integrity of both was unblemished. It was believed that the nefarious practice was stopped by Mr. Chandler's action in the Senate. Exposure made public men careful to examine each application for pardon before they would consent to recommend it to the President.

The President neither approved the bill nor objected to it, but allowed it to become a law by the expiration of the Constitutional limit of ten days. He obviously took the same view that had been advanced by Mr. Reverdy Johnson, and did not take the trouble to sign it, much less to veto it. It was brutum fulmen, and the President used his Constitutional power to pardon by proclamation just as freely after its enactment as before.

[NOTE.—"Pocketing a bill" is the phrase commonly used to describe the President's course when he permits a bill which reaches him within the last ten days of the session, to die without action on his part. It is frequently termed the "pocket veto.">[

[(1) The original Reconstruction Act and the several supplementary Acts are given in full in Appendix A.]

[(2) The full text of the Act to regulate the tenure of certain civil offices, is given in Appendix B.]