The Struggle between President Johnson and Congress over Reconstruction

by Charles E. Chadsey

Congress felt justified in passing the bill over the veto, and accordingly the general process of reconstruction was established with conditions far more onerous than had been intended in the first session of the 39th Congress. The provisions of the act immediately went into force, and the commanders of the districts were appointed on March eleventh.

3. The bill was conceded by all its supporters to be incomplete. It provided for the establishment of districts and the governing of these districts by military law, and it was hoped that the immediate crying need of a strong government to enforce order and prevent the continuance of the oppression of the freedmen was satisfied. This done, they could proceed more deliberately to the enactment of measures which would provide the mechanism for carrying out the provisions of the fifth section. The adjournment of the 39th Congress at noon of March 4 prevented any action until the next Congress; but preparation had been made for such an emergency by an act which provided that in future each Congress should convene upon the adjournment of its predecessor.[165]

The 40th Congress at once settled down to work upon the problem. Chief Justice Chase prepared a bill which was used as a basis for the discussion. Senator Wilson and others modified the bill to some extent, and introduced it in the Senate on March 7.[166] The same bill, slightly modified, was introduced in the House.[167] Considerable trouble was experienced in agreeing upon the details of the bill, but on March 19 both houses finally adopted a compromise proposed by a committee of conference. The veto message of the President was received four days later; the bill was immediately passed over the veto and became a law.[168]

As finally passed, the bill was entitled: “An Act supplementary to an Act entitled, ‘An Act to provide for the more efficient government of the rebel States,’ passed March second, eighteen hundred and sixty-seven, and to facilitate restoration.” It enacted that the commanding general in each district should cause a registration to be made before September 1, 1867, of those entitled to vote under the original act, and should require all registering to take the following oath: “I, —— do solemnly swear (or affirm) in the presence of Almighty God, that I am a citizen of the State of ——; that I have resided in said State for —— months next preceding this day, and now reside in the county of ——, or the parish of ——, in said State (as the case may be); that I am twenty-one years old; that I have not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony committed against the laws of any State or of the United States; that I have never been a member of any State legislature, nor held any executive or judicial office in any State and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States or given aid or comfort to the enemies thereof; that I will faithfully support the Constitution and obey the laws of the United States, and will, to the best of my ability, encourage others so to do, so help me God.”[169] After the completion of the registration in any State, it was provided that there should be held, after at least thirty days’ public notice by the commanding general, an election of delegates “to a convention for the purpose of establishing a constitution and civil government for such State loyal to the Union.” This convention was to consist of the same number of members as the most numerous branch of the State legislature in 1860.[170] Those voting at the election of delegates were also to vote for or against the holding of the convention, and it was not to be held if a majority of the ballots was cast against it, or if a majority of the registered voters failed to vote on the question. Boards were to be appointed by the commanding general to superintend the registration and election, and make returns to him of the results of the election. The convention was required to assemble at a place and time appointed by the commanding general, by a notice to be given by him within sixty days from the date of election; and to frame a constitution according to the provisions of the original and the present act. The constitution so framed was then to be submitted to the registered voters at an election conducted by officials who were to be appointed by the commanding general, and who were to make returns to him. In case the constitution was ratified “by a majority of the votes of the registered electors qualified as herein specified, cast at said election (at least one-half of all the registered voters voting upon the question of such ratification),” it was provided that the president of the convention should “transmit a copy of the same, duly certified, to the President of the United States, who shall forthwith transmit the same to Congress,” and that, if Congress should be satisfied that all the provisions of the acts were carried out, and that no force or fraud was used, and should approve the constitution, the State should “be declared entitled to representation, and senators and representatives shall be admitted therefrom as therein provided.” It was further provided that all elections in the States mentioned in the original act should, during the operation of that act, be by ballot; that the officials in charge of the registration and elections must take the “iron-clad” oath of July 2, 1862[171] that the expenses incurred by the commanding generals in carrying out the act should be paid out of the treasury, but that the state conventions should provide for the levying of taxes to pay other expenses.[172]

The veto message on this bill was much shorter than that on the original reconstruction measure. The President said: “No consideration could induce me to give my approval to such an election law for any purpose, and especially for the great purpose of framing the constitution of a State. If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live.” He animadverted upon the extreme looseness of the provisions in regard to the registration boards, and upon the great powers vested in them. The main objections to the bill were of course those which he had stated in the veto of March 2.

The passage of the supplementary reconstruction act, and of a joint resolution providing for the expenses involved in carrying out the provisions of the act, completed the work of this session of the 40th Congress. It was hoped that no further congressional action would be needed until the constitutions of the States should be submitted for examination and approval, preparatory to granting representation. But the importance of the measures and the avowed hostility of the President caused hesitation on the part of Congress as to adjourning till the regular December session. It was realized that if any loop-hole could be found by which the intention of the act could be evaded, Johnson would have no hesitation in taking advantage of it. To provide for such a contingency Congress passed a concurrent resolution which provided for a recess until July 3, and authorized the President of the Senate and the Speaker of the House to adjourn Congress until the first Monday in December if a quorum did not appear on July 3. In case everything appeared to be progressing with little friction, the members would not assemble; but if there should be any unfavorable developments, Congress could assemble independently of the President and enact legislation to remedy the difficulty.

4. July 3 found a quorum in both houses. The Attorney-General had rendered an opinion upon the act of March 2 which greatly hampered the work of the commanders of the districts. He advised the President that the act should be construed strictly, that the commanders should be allowed no powers beyond those specifically bestowed upon them. This prevented them from removing state officers, from making new laws for the government of the people, or from suspending the action of the state courts; and with state officers hostile to the federal authorities, and using every means to impede their work, the commanders found it impossible properly to discharge the duties assigned to them by the act.[173] The intent of the reconstruction acts obviously was to make the commanders of the districts commanders de facto as well as de jure. Consequently remedial legislation was deemed necessary, and Congress convened for the purpose of framing additional acts defining more precisely the intention of the preceding acts and the powers of the commanders.

A few days’ debate sufficed to bring Congress to an agreement as to the form of a second supplementary act. The bill passed both Houses on July 13, was vetoed on the 19th, and was immediately passed over the veto.[174] It declared[175] the true intent and meaning of the previous reconstruction acts to be that the governments then existing in the ten States specified in the acts were illegal, and that such governments, “if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress.” It therefore provided that the district commanders should have the power to suspend or remove all incumbents of offices of “any so-called State or the government thereof,” and to fill all vacancies in such offices, however caused. The same powers were granted to the General of the Army, who was also empowered to disapprove the appointments or removals made by the district commanders. The previous appointments by the district commanders were confirmed and made subject to the provisions of the act, and it was declared to be the duty of these commanders to remove from office all who were disloyal to the United States, or who opposed in any way the administration of the reconstruction acts. The registration boards were empowered and required “before allowing the registration of any person to ascertain, upon such facts or information as they can obtain, whether such person is entitled to be registered.”[176] No person was to be disqualified as a member of any board of registration by reason of race or color. The true intent and meaning of the oath prescribed in the supplementary act was fully explained, the most important portion of the explanation being that the words “executive or judicial office in any State” should be construed to “include all civil offices created by law for the administration of any general law of a State, or for the administration of justice.” The time of registration under the supplementary act was extended to October 1, 1867, in the discretion of the commander and it was provided that “the boards of registration shall have power, and it shall be their duty, commencing fourteen days prior to any election under said act, and upon reasonable notice of the time and place thereof, to revise, for a period of five days, the registration lists,” by striking out the names of those found to be disqualified, and adding the names of those qualified for registration. Executive pardon or amnesty should not qualify any one for registration who without it would be disqualified. District commanders were empowered “to remove any member of a board of registration, and to appoint another in his stead, and to fill any vacancy in such board.” The iron-clad oath was to be required of all registration boards, and of all persons elected or appointed to office in the military districts. Further possibility of unfavorable construction by the Attorney-General was prevented by the provision that “no district commander or member of the board of registration, or any of the officers or appointees acting under them, shall be bound in his action by any opinion of any civil officer of the United States.” The closing section, taken in connection with this, was fully as significant: “All the provisions of this act and of the acts to which this is supplementary shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.”

5. Reconstruction under the provisions of these three acts was rapidly accomplished in most of the States.[177] In some of the districts the commanders probably were too severe upon the whites, but in the main the intent of the acts was carried out with as little harshness as could well be expected. Those qualified were registered, conventions were held, and constitutions were framed and submitted to the people for their ratification according to the provisions of the acts. Alabama was the first State to vote upon a new constitution, and the Democrats, or Conservatives, as they styled themselves, took advantage of the fifth section of the act of March 23, which required at least one-half of the registered voters to vote on the question of ratification, as a condition of the validity of the election. Non-action seemed to be the easiest method of defeating the constitution, and they accordingly absented themselves from the polls, only 70,812, out of 165,812 registered voters, casting their ballots.[178]

6. There had been a strong minority in Congress opposed to the insertion of this section, who had foreseen this very outcome; and the action of Alabama converted the minority into a majority. A third supplementary bill was accordingly passed. Johnson neither signed nor vetoed it; and it became a law without his signature on March 11, 1868. It provided that in future all elections authorized by the act of March 23, 1867, “should be decided by a majority of the votes actually cast,” thus preventing any repetition of the Alabama experiment.[179]