Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER VII

THE CONGRESSIONAL PLAN (Completed)

[Negro Suffrage in the District of Columbia]—[The First Attempts at Impeachment]—[Stories of Outrages at the South]—[The Reconstruction Bill]—[Passage of the Bill by the House]—[The Bill as Finally Agreed upon]—[The Condition that the Fourteenth Amendment must be Ratified by a Sufficient Number of "States" to make it a Part of the Constitution]—[The Tenure-of-Office Bill]—[The Supplementary Reconstruction Bill]—[The Assignment of the Commanding Generals to the Military Districts Created by the Reconstruction Acts]—[The Re-establishment of Martial Law in the South]—[The President's Instructions to the Generals in Interpretation of the Reconstruction Acts]—[The Congressional Interpretation of the Reconstruction Acts]—[The President's Veto of the Bill Interpreting the Reconstruction Acts]—[The Veto Overridden]—[The Suspension of Stanton from Office].

The Congress had but just put itself in working order, when a bill was introduced and passed extending the suffrage to negroes in the District

Negro suffrage in the
District of Columbia.

The Message was a strong paper, and to an impartial mind at this day it is a convincing paper. There is no question that Congress had the

The President's veto of
the bill establishing
negro suffrage in the
District of Columbia.

There is no gainsaying that this was good reasoning, but Congress was in no frame of mind to give ear to the counsel of the President. It took the ground that in legislating for the District it was acting for the whole United States and not simply for the inhabitants of the District, and that there was no place in the entire country where political experiments could be more safely tried than in the District, since Congress had plenary legislative power in the District and could discover and correct mistakes and defects in its legislation more easily and promptly there than anywhere else.

Both Houses repassed the bill over the President's veto by the necessary two-thirds majority, the Senate on the 7th of January and the

The first attempts
at impeachment.

At the same time the halls of Congress were ringing with the most extravagant tales of outrages against the negroes and loyal men of the

Stories of outrages
at the South.

While, as we have seen, the Congress did not pass the proposition to make the acceptance of the proposed Fourteenth Amendment by the newly

The Fourteenth
Amendment as the
condition of
recognizing the
revival of statehood.

There can be no question in the mind of any sound political scientist and constitutional lawyer that Congress was in the right, logically,

The correctness of
the Republican view.

The Reconstruction bill was presented from the Committee of fifteen on Reconstruction to the House of Representatives on the 6th of February

The Reconstruction bill.

There was hardly a line in the entire bill which would stand the test of the Constitution. In the first place, the Congress of the United

The bill indefensible
from the constitutional
point of view.

In the second place, the bill undertook to rob the President of his constitutional prerogative of commandership-in-chief over the army, and

The bill in its attempt
to rob the President
of his office of
Commander-in-chief.

And in the third place, the bill assumed to suspend the writ of Habeas Corpus, substantially, while the Constitution forbids this to be done by any part of the Government of the United States, except in time of war or public danger. There was no war, and to say that there was public danger of the character meant by the constitutional exception was to exaggerate the condition of things entirely beyond all fact or reason.

The bill was the most brutal proposition ever introduced into the Congress of the United States by a responsible committee, and it would

The brutality of
the measure.

The two points in the bill which the conservative Republicans were unable to accept were, first, the establishment of martial law for an

The opposition
of conservative
Republicans to
the bill.

Mr. Blaine's
proposed
changes in
the bill.

There is no doubt that all this, while reflecting the good moral feeling of Mr. Blaine, was bad political science and was the very

Criticism of
Mr. Blaine's
propositions.

Mr. Stevens acted correctly, from the point of view of political science and constitutional interpretation, when he declined to accept

Mr. Stevens's
refusal to accept
Mr. Blaine's
amendment.

Passage of the bill
by the House.

This more conservative and deliberate body regarded the bill as too radical, and after considerable debate upon a proposed amendment,

The bill in
the Senate.

This substitute contained the gist of the Blaine amendment, and also changed the provision which proposed to deprive the President of his

The Sherman
substitute.

When it was returned to the House of Representatives for concurrence, the Radical Republicans developed a most hostile opposition to the

The substitute
in the House.

The Senate
substitute
rejected by
the House.
The bill as
finally
agreed upon.

It contained the following declarations and provisions. First, the preamble designated the ten communities reconstructed under the

The contents of
the bill as passed.

The Republican Congress decided, after much deliberation, that the former were necessary to the maintenance of peace and good order, and, therefore, enacted that the "said rebel States" should be divided into five military districts, as previously described in the original bill; that the President should assign to the command of each of these an army officer of not lower rank than brigadier-general, and place under his command a sufficient force to enable him to perform his duties and execute his authority in his district; that these commanders should have the power to govern these districts by martial law in so far as, in their judgment, the reign of order and the preservation of the public peace might demand, under the limitations simply that "all persons put under military arrest by virtue of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted, and no sentence of any military commission or tribunal hereby authorized affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district—and no sentence of death under the provisions of this act shall be carried into effect without the approval of the President."

Then came the provision which offered the terms of escape from this new military régime. They were, first, the exercise of universal manhood suffrage, that is the suffrage of all male citizens, twenty-one years of age, without regard to race, color or previous condition of servitude, who were not disfranchised for participation in rebellion or for felony at common law, and who had resided for one year in the so-called "rebel State," in the election of delegates to a constitutional convention in the so-called "rebel State"; second, the framing of a "State" constitution by a convention composed of delegates so elected, and not disqualified by participation in rebellion or by the commission of felony, which constitution should conform in all respects to the Constitution of the United States and which should contain, as a permanent principle, the same law of suffrage as that prescribed by this Act for the election of the delegates to the convention; third, the ratification of this constitution by a majority of the voters, as designated by the law of suffrage for the choice of delegates to the convention, voting upon the question of ratification; fourth, the approval by Congress of this constitution; and fifth, and last, the adoption of the proposed Fourteenth Amendment to the Constitution of the United States by the legislature created by such adopted and approved "State" constitution, and by a sufficient number of the legislatures of other "States" to make it a part of the Constitution of the United States.

The measure contained, in the last place, a sort of saving clause in regard to the existing civil governments which had been established in all these communities under the direction of the President, and which were now to be displaced. It had been already provided, in section third, that the military commander of a district might use the existing civil courts, if he saw fit to do so, so long as the reign of law and order might be so preserved, and the final section provided that any civil government which might exist in these districts should be regarded as provisional, and should be in all respects subject to the paramount authority of the United States, which should control, and might abolish, modify, or supersede the same, and that the voters for the election of the officers of such provisional governments should be required to have only the qualifications prescribed in this Act for voters for the delegates to the said "State" convention, and persons elected to place and office in such provisional governments must not have the disqualifications prescribed in the proposed Fourteenth Amendment to the Constitution of the United States. It had evidently occurred to the Republican leaders that they might have to make use of some of the machinery of the existing civil governments established under the direction of the President in these regions in executing their own plan of Reconstruction.

All of the points of the measure have been commented on, except the provision in the fifth section, which makes the adoption of the

The condition that the
proposed Fourteenth
Amendment be ratified
by a sufficient number
of "States" to make it a
part of the Constitution.

Hand in hand with this bill went another measure, the purpose of which was to limit the customary power of the President, if not his

The Tenure-of-Office bill.

The propositions contained in the Tenure-of-Office bill were, however, of a very different significance. There was no clause in the Constitution which by express literal grant vested the power to dismiss from office in the President, but the clause which made the President solely responsible for the execution of the laws was interpreted by the first Congress as doing so. Madison took the ground that the President must have this power in order to secure the necessary obedience in his subordinates, and declared that the convention which framed the Constitution so understood it and so intended it. This is certainly sound political science and correct constitutional interpretation. It had also been the practice of the Government from the beginning. The Whigs had undertaken to reverse it in their contest with Jackson, and Webster had given his opinion that good political science required that dismissal from office should be treated as an incident of appointment, and should be effected in the same manner as appointment, i.e., with the concurrence of the Senate, and that the decision of 1789 on this subject was, in his opinion, erroneous from the point of view of a proper interpretation of the Constitution as well. But the Whigs did not succeed, as we have seen, in their attempt to break down Presidential prerogative and introduce parliamentary government, and the practice of the Government on this subject remained, after, as before, the fourth decade of the century, the same.

During the experiences of the years 1865 and 1866 the Republicans feared that the President would use this great power of dismissal from

The reasons for the
Tenure-of-Office bill.

The bill drafted for this purpose made the removal of all officers, appointed by and with the consent of the Senate, except only members of

The contents
of the bill.

From the point of view of the present this would seem, in all conscience, to have been a sufficient usurpation of the President's

Discussion
of the bill.

The bill as finally enacted contained, moreover, the most stringent provisions for its enforcement. It made

The provisions for
enforcing the measure.

This monstrous measure went to the President on the same day with the Reconstruction bill, the 20th of February. It is not to be wondered at

The President's
vetoes of these bills.

The vetoes of these bills were sent to Congress on the same day, March 2d. To the publicist and historian of this day they are masterpieces of political logic, constitutional interpretation, and official style. If not written by Mr. Seward, they must have been edited and revised by him. These documents showed most convincingly, both from constitutional provisions, opinions of contemporaries, statutes of Congress, judicial decisions, and the uniform practices of the Government, that Congress had no power to establish or re-establish martial law anywhere in the country, except when and where war or armed rebellion existed as a fact, a condition which did not then exist anywhere in the length and breadth of the land; and that Congress had no power to force the President to retain agents and subordinates in office against his judgment and will. No good political scientist and no sound constitutional lawyer will, at this day, disagree with the contention of the President upon these two points, and it is very difficult to understand how the great leaders of the Republican party could, at that day, have differed with him.

Undoubtedly, in some of the baser minds among them, the determination to create Republican party "States" in the South was a very weighty

Republican motives
in Reconstruction.

As this contest developed it dwarfed, to say the least, all other considerations. Even as late as when the Reconstruction bill was

Congressional
encroachment
on the President's
military prerogatives.

To the mind of any unprejudiced constitutional lawyer, at the present day, this act must appear as a gross usurpation by Congress of the President's military powers conferred upon him by the Constitution. The Constitution makes the President the Commander-in-Chief of the army and navy, and gives Congress no power whatsoever over the methods or channels by, and through, which he may issue his military commands. Neither does the Constitution give Congress any power to assign any of the officers or troops of the army to any particular position. These are all functions of the commandership-in-chief, and, unless expressly granted by the Constitution to some other department of the Government, belong to the President.

It was not only a usurpation by Congress to pass such an act, but it was a mean thing to do it as a section of an appropriation bill; and there is no escaping the suspicion that it had a sinister purpose, namely, to entrap the President in the commission of what Congress had made a high misdemeanor, and open the way for his impeachment and expulsion from office. The President signed this bill, however, in order to save the appropriations for the support of the army, although he protested strongly against the seizure of his constitutional powers by the Congress.

On the same day that the vetoes of the Reconstruction bill and the Tenure-of-Office bill were sent to Congress, this body passed a bill

The supplementary
Reconstruction bill.

It next made it the duty of the commanding generals to order elections, at such times after the completion of the registrations and at such places as they might choose, for delegates to constitutional conventions in the "States" comprised in their respective districts. It required them to give thirty days' notice of the elections, and it fixed the number of delegates to each convention at the number of members in the lower House of the legislature of the "State" concerned in the year 1860, except in the case of Virginia, where, on account of the separation of West Virginia from the old Commonwealth, the number of deputies to the Virginia convention was made to correspond with the number of members in the lower House of the legislature of 1860, representing the territory not included in West Virginia. The bill further directed the commanding generals to distribute the representation in the conventions among the districts, counties and parishes of the "States" in accordance with the number of registered voters in each.

The bill then provided that at the elections for delegates, the voters should vote on the question as to whether there should be a constitutional convention or not, and that such convention should be held only when a majority of the inscribed electors voted upon this question, and a majority of those voting voted in the affirmative. It then ordered the commanding generals, in case the voters did so decide for conventions and elect delegates thereto, to call such within sixty days from the date of the elections, and to notify the delegates to assemble at a given time and place, and frame constitutions according to the provisions of the bill and of the former Act to which it was supplementary, and, when framed, to submit the same to the registered voters for ratification with a notice of thirty days.

The bill then further provided, that if, at such elections, a majority of the registered voters voted upon the question of ratification, and a majority of those voting voted in favor of ratification, the presidents of the respective conventions should transmit copies of the respective constitutions to the President of the United States, who should transmit them to Congress, and that Congress should declare the respective "States," whose conventions had framed these constitutions and whose voters had adopted them, entitled to representation in Congress, provided Congress was satisfied that there had been perfectly free elections, and that no force, fraud or intimidation had been perpetrated at them, and that the constitutions presented met the approval of a majority of the qualified electors and were in conformity with the requirements of the Reconstruction Act.

Finally, the bill put into the hands of the commanding generals the appointment of the officers of the elections, and the control of the machinery of the elections, only requiring them to hold the elections by ballot, and to proclaim the results of the elections in accordance with the returns made to them by their boards of registration.

Congress had passed a resolution ordering the assembly of the Fortieth Congress so soon as the Thirty-ninth expired, and in accordance

Congress in
permanence.

On the 23d of March the veto appeared. The President argued that the oath required by the bill from every person before his name could be

The veto of the
supplemental
Reconstruction
bill.

On the other hand, from the point of view of the correct legal principle in regard to this subject, the principle which holds that the

Criticism
of the veto.

But there is no question, now, that Congress did a monstrous thing, and committed a great political error, if not a sin, in the creation of

Criticism of the
Reconstruction Acts.

There was another alternative, and a better one. In fact, there were two other conceivable ways of doing these things, either of which would have been better than the one chosen. The one was, as has been already suggested, to establish Territorial civil governments in the late rebellious region and maintain them there until the civil relations between the two races became settled and fixed. The other was to so amend the Constitution of the United States, before the readmission of the "States" which had renounced the "State" form of local government under the Union, as to give Congress and the national judiciary the power to define and defend the fundamental principles of civil liberty. Neither of these methods would have demanded martial law or universal negro suffrage. It is entirely surprising, from the point of view of to-day, that one or the other of these methods or a combination of both was not resorted to, instead of the monstrous plan that was carried out. There is no way to explain this sufficiently, except upon the reflection that the passions of the men of that day had become so inflamed and so completely dominating that they obscured reason, drowned the voice of prudence, and even dulled the sense of decency. There were a few who favored universal negro suffrage from an exalted and exaggerated humanitarianism, but the mass of the Republicans sustained it as a punishment to the late rebellious whites, and as a means of establishing Republican party "State" governments in the South. Many claimed, indeed, that it was the only alternative to long-continued martial law rule, but they were either very ignorant or very insincere.

In prompt obedience to the requirements of the two Reconstruction Acts, the President issued his general order through the Adjutant-General's

The assignment of the
commanding generals
to the military districts
created by the
Reconstruction Acts.

These officers betook themselves at once, with the forces attached to their several commands, to their respective stations, and assumed the

The re-establishment of
martial law in the South.

Very soon, however, the generals found great difficulty in interpreting the Reconstruction Acts, especially in respect to the oath required for

The President's
instructions to
the generals in
interpretation of
the Reconstruction
Acts.

First: That the oath prescribed in the second Act defined all the qualifications required for suffrage, and that any person who could take that oath should have his name entered on the list of voters; that the boards of registration provided in that Act could not require any other, or any additional, oath from the person applying for registration, nor "administer an oath to any other person touching the qualification of the applicant or the falsity of the oath taken by him," but that the person taking the oath must be registered as a voter, and if it could be afterward proved that he had sworn falsely, he could be punished for perjury.

Second: That an unnaturalized alien could not take the oath, but a naturalized alien could, and that no other proof of naturalization could be required of him.

Third: That "actual participation in rebellion or the actual commission of a felony" did not amount to disfranchisement, but there must be a law made by competent authority declaring disfranchisement, or a judicial sentence inflicting it, and that no law of the United States had declared the penalty of disfranchisement for participating in rebellion alone.

Fourth: That a person who had engaged in rebellion, but had not theretofore held an office under a "State" or the United States, or not been a member of a "State" legislature or of Congress, and not taken, as such, an oath to support the Constitution of the United States, was not disfranchised or disqualified from voting.

Fifth: That persons who were militia officers in any "State" prior to the rebellion were not disfranchised by participating in the rebellion.

Sixth: That "an act to fix upon the person the offence of engaging in rebellion under this law must be an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose," and that "a person forced into the rebel service by conscription or under a paramount authority which he could not safely disobey, and who would not have entered such service if left to the free exercise of his own will," was not disfranchised or disqualified from voting.

And lastly: That disloyal sentiments, opinions or sympathies, or anything said or written which fell short of an incitement to others to engage in rebellion, did not disfranchise or disqualify from voting.

Some other instructions were given which were concurred in by the entire Cabinet, Mr. Stanton included, but the recital of them is not essential to this narrative. It must be added, however, that the President's view of the relation of the military commanders to the "State" governments created under his direction and with his aid was one which gave these governments a more independent and permanent character than the language of the Reconstruction Acts seemed to warrant.

When, then, the instructions of June 20th to the generals became known,

The Congressional interpretation
of the Reconstruction Acts.

It declared that the true intent and meaning of these Acts was that the civil governments then existing in the "rebel States" of Virginia, North Carolina, etc., were not legal "State governments," and that, if thereafter they should be allowed to continue to exist at all, they must be subject in all respects to the will of the military commanders of the respective districts, and to the paramount authority of Congress; and it provided that the generals in command of the respective districts might suspend or remove any person from any office under these illegal and pretended governments, and detail or appoint some other person to discharge the duties and exercise the powers said to pertain to such office. The acts of the district commanders in regard to these things were made subject to the disapproval of the General of the army, but not to that of the President, and stood until so disapproved. The same powers in regard to these matters were vested, by this bill, in the General of the army as in the district commanders, but were not accorded by it to the President; and it was made the duty of the General of the army and the district commanders to remove from such pretended offices "all persons who were disloyal to the United States, or who used their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of the Reconstruction Acts."

The bill, furthermore, provided that the boards of registration should have the power, and that it should be their duty, to ascertain the fact as to whether a person applying for registration as a voter was entitled to registration under the Reconstruction Acts, and to refuse registration, if in their judgment he was not, and that the fact that he was willing to take the oath prescribed in the Reconstruction Acts, or had taken it, was not conclusive upon the registration boards in making their inquiries and forming their decisions. And it, finally, declared that the true intent and meaning of the oath prescribed in the Reconstruction Acts for persons who had held office under a "State" government or membership in a "State" legislature, before the rebellion, was that whether such persons were holding such positions at the time of the commencement of the rebellion or at some time prior to the same, and whether they had taken an oath to support the Constitution of the United States or not, they were disqualified from registration and were disfranchised, if, after holding such positions, they had "engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof"; and it gave to the commanders of the districts the power to extend, in their discretion, the time for completing the original registration of the voters, as provided for in the Reconstruction Acts, to October 1st following, and to the boards of registration the power, and imposed upon them the duty, to revise, during the first five of the last fourteen days before any election under the Reconstruction Acts, the registration lists and to strike off any name from said lists which, in their judgment, ought not to be there, and to add any name, which, in their judgment, ought to be there, and required them to disregard any Executive pardon or amnesty as relieving the disability of any person for registration, if such person had committed any act which without such pardon or amnesty would disqualify him.

This bill, it will be readily seen, was a wholesale repudiation of all the instructions given by the President to the generals in command of the districts from which, in the Cabinet council, Mr. Stanton had dissented. The President immediately realized this, of course, and it increased his distrust of Stanton immensely. From that moment forward he regarded him as the spy of Congress upon all his official acts, and he was resolved to remove him upon the first opportunity, that is, so soon as Congress should adjourn.

The bill passed the Houses on the 13th of July, was presented to the President for his signature on the 14th, and on the 19th he returned it

The President's veto of
the bill interpreting the
Reconstruction Acts.

But the most vigorous and unanswerable part of the message was the protest against the robbery of the constitutional powers of the Executive by the attempt of Congress, in this measure, to confer some of those powers upon other persons. The President expressed himself so warmly upon this point, that the Republicans began to whisper around their suspicions of sinister purposes on his part, just as if such a declaration to Congress itself was not proof to the contrary. He said: "Whilst I hold the chief executive authority of the United States, whilst the obligation rests upon me to see that all the laws are faithfully executed, I can never willingly surrender that trust or the powers given for its execution. I can never give my assent to be made responsible for the faithful execution of laws, and at the same time surrender that trust and the powers which accompany it to any other executive officer, high or low, or to any number of executive officers. If this executive trust, vested by the Constitution in the President, is to be taken from him and vested in a subordinate officer, the responsibility will be with Congress in clothing the subordinate with unconstitutional power and with the officer who assumes its exercise."

The radical Republicans interpreted this language, at once, as meaning that the President proposed to so interfere with the execution of the

Ideas and suspicions
about the meaning
of the message.

The Houses passed the bill over the President's veto immediately, by an

The veto overridden.

The unfortunate relations of Mr. Stanton with the President, and with the other members of the Cabinet were the thing which was destined to produce the catastrophe. He had become unbearable to the President, and to the most of his colleagues. He ought in all decency to have resigned his portfolio as Speed and Harlan and Dennison had done the year before. The President asked him to resign in a note of the 5th of August. Stanton, feeling sure of the support of the large majority in Congress, contemptuously refused. The President could now in the recess of Congress suspend him without violating the provisions of the Tenure-of-Office Act, or raising the question of its constitutionality. The President at last resolved to take the matter into his own hands and rid himself of Stanton's presence in his

The suspension of
Stanton from office.

By a series of orders issued during the same month (August) General Hancock was substituted for General Sheridan in the command of the

Changes among the
commanders of the
military districts.