The Struggle between President Johnson and Congress over Reconstruction

by Charles E. Chadsey

On the first day of the session Senator Wilson, of Massachusetts, had introduced a bill looking to the personal protection of the freedmen. It was aimed directly at the “black laws” of the Southern States, and declared all laws, statutes, acts, etc., of any description whatsoever, which caused any inequality of civil rights, in consequence of race or color, to be void. In his speech of December 13, 1865, explaining his reasons for introducing the bill, Wilson said that, while honest differences as to the expediency of negro suffrage might exist, he could not comprehend “how any humane, just and Christian man can, for a moment, permit the laws that are on the statute-books of the States in rebellion, and the laws that are now pending before their legislatures, to be executed upon men whom we have declared to be free. * * * To turn these freedmen over to the tender mercies of men who hate them for their fidelity to the country is a crime that will bring the judgment of heaven upon us.”[101]

This bill and a similar bill introduced by the same senator on December 21, and one introduced by Senator Sumner on the first day of the session, never came to a vote, the last two being postponed indefinitely by the Senate. In place of these bills, Senator Trumbull of Illinois, chairman of the Committee on the Judiciary, on January 5, 1866, introduced a bill which, slightly amended, became a law. This measure passed the Senate on February 2, was amended and passed by the House on March 13, and the amendments were concurred in by the Senate on the 15th. It was returned to the Senate by the President, without his approval, March 27, and on April 6 the Senate passed the bill over the veto of the President by a vote of 33 to 15. Three days later the House passed the bill by a vote of 122 to 41, and the measure became a law.

As passed it was entitled, “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication.” It first declared “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” to be citizens of the United States. Such citizens, without regard to race, color, or previous servitude, were declared to have the same rights in all the States and Territories, as white citizens, to make and enforce contracts; to “sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property;” to enjoy the equal benefit of all laws for the security of person and property, and to be subject only to the same punishments. The second section provided penalties for the deprivation of equal rights. The third gave to the United States courts exclusive cognizance of all causes involving the denial of the rights secured by the first section. The remaining sections specified the powers and duties of the district attorneys, marshals, deputy marshals and special commissioners, in connection with the enforcement of the act, the ninth section providing: “It shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of the Act.”[102]

From this summary of the act its nature can be seen plainly. Up to this time there had been no legislation affecting the status of the freedman. This declared him to be a citizen of the United States, and thereby entitled to all the privileges of citizenship. The war having resulted in the anomalous condition of the several millions of freedmen, some such legislation was necessary, especially in view of the fact that discriminative legislation was being enacted in the South. The bill was moderate in its terms, the most questionable portion being the section empowering the President to enforce the act through the war department, but even that in the then unsettled condition of the country had much to justify it.

The President’s veto message was a lengthy document and discussed in detail the significance of the bill.[103] He questioned the policy of conferring citizenship on four million blacks while eleven of the States were unrepresented in Congress. He doubted whether the negroes possessed the qualifications for citizenship, and thought that their proper protection did not require that they be made citizens, as civil rights were secured to them as they were, while the bill discriminated against the intelligent foreigner. Naturally, he also declared that the securing by federal law of equality of the races was an infringement upon state jurisdiction. “Hitherto, every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States.” The second section he thought to be of doubtful constitutionality and unnecessary, “as adequate judicial remedies could be adopted to secure the desired end, without invading the immunities of legislators, * * * without assailing the independence of the judiciary, * * * and without impairing the efficiency of ministerial officers. * * * The legislative department of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer bound to decide according to the will of Congress.” The third section he characterized as undoubtedly comprehending cases and authorizing the “exercise of powers that are not by the Constitution within the jurisdiction of the courts of the United States.” He also considered the extraordinary powers of the numerous officials created by the act as jeopardizing the liberties of the people, and the provisions in regard to fees as liable to bring about persecution and fraud.

In addition to these objections he argued that the bill frustrated the natural adjustment between capital and labor in a way potent to cause discord. It was “an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers, and break down the barriers which preserve the rights of the States. * * * The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace.”

The next clash between the executive and legislative branches of the government was over the Colorado bill.[104] This bill provided for the admission of Colorado into the Union, and was passed May 3, being vetoed by the President on May 15, in accordance with the policy which he was endeavoring to carry out.[105] The nominal grounds, while strong in themselves, had less weight in Johnson’s mind than the argument reserved for the final sentence of the message. This referred to the fact that eleven of the old States were unrepresented in Congress, and that it was in the “common interest of all the States, as well those represented as those unrepresented, that the integrity and harmony of the Union should be restored as completely as possible, so that all those who are expected to bear the burdens of the Federal Government shall be consulted concerning the admission of new States; and that in the mean time no new State shall be prematurely and unnecessarily admitted to a participation in the political power which the Federal Government wields.” A second bill for the admission of Colorado was vetoed on January 29, 1867.[106] In the message President Johnson stated that he could change none of his opinions expressed in the first veto, while he now saw many additional objections. Neither bill was passed over the veto.

Another measure of like nature was the Nebraska bill, which was passed on July 27, the last day but one of the session. The President “pocketed” it. Both bills were again introduced at the beginning of the second session by Senator Wade, and the Nebraska bill was duly passed. It was vetoed January 30, 1867, but within ten days was passed over the veto by both houses, Nebraska being able to present stronger arguments for receiving statehood than Colorado, and consequently obtaining more support from the conservative members of the Republican party. The principal objection expressed in the veto message was the incongruities existing in the bill, the first section admitting the State “upon an equal footing with the original States in all respects whatsoever,” and the third section providing that “there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, except Indians not taxed.” This assertion of the right of Congress to regulate the elective franchise the President declared clearly unconstitutional, incompatible with an equal footing with the original States.[107]

7. The central event, naturally, of the first session of the 39th Congress was the report of the Joint Committee on Reconstruction. Although during the session there was a great amount of discussion as to the theory and method of reconstruction, and, as has been shown, two important measures were passed over the President’s veto, the majority in the House still felt uncommitted as to the policy they should favor, excepting so far as the measures already reported from the committee had given shape to their plans. A definite platform had not been erected on which they could stand, and they were not certain of the foundations on which to base constructive legislation. It was quite evident from the resolutions and bills reported from the committee to Congress, that the testimony taken before it had not changed the views of the majority of the committee, and the general tenor of the report was not a surprise to any one. Its constitutional importance cannot be questioned, since the Republican party adopted its construction of the Constitution, and proceeded to frame, on the lines marked out by the report, the bills which changed decidedly the relations between the States and the Federal Government, affording precedents for an extension of federal power which previous to the close of the war few could have been found to support.[108]

No theory as to the status of the Southern States was agreed on by the committee.[109] Among those signing the majority report several distinct views can be noted. The theory of Thaddeus Stevens, that the States were now merely conquered territory, at the mercy of the conqueror, has already been noticed. Mr. Boutwell, of Massachusetts, was one of those who theoretically differed from Mr. Stevens, preferring to consider the States as “dead States” within the Union. Mr. Bingham, of Ohio, was still less radical, simply calling them “disorganized States.” But realizing the futility of introducing distinctions which could not affect the main question at issue, the majority dropped “the profitless abstraction,” and agreed upon the general conclusions and recommendations. The report was finally presented to Congress on June 18, all the members signing excepting Johnson, Rogers and Grider, who submitted a minority report four days later.