It now remained for Congress to approve the work done in the South and to readmit the reorganized States. The case of Alabama gave some trouble. Even Stevens, for a time, thought that this State should stay out; but there was danger in delay. The success of the abstention policy in Alabama and Arkansas and the reviving interest of the whites foreshadowed white majorities in some places; the scalawags began to forsake the radical party for the conservatives; and there were Democratic gains in the North in 1867. Only six States, New York and five New England States, allowed the negro to vote, while four States, Minnesota, Michigan, Kansas, and Ohio, voted down negro suffrage after the passage of the reconstruction acts. The ascendancy of the radicals in Congress was menaced. The radicals needed the support of their radical brethren in Southern States and they could not afford to wait for the Fourteenth Amendment to become a part of the Constitution or to tolerate other delay. On the 22d and the 25th of June acts were therefore passed admitting seven States, Alabama included, to representation in Congress upon the "fundamental condition" that "the constitutions of neither of said States shall ever be so amended or changed as to deprive any citizens or class of citizens of the United States of the right to vote in said State, who are entitled to vote by the constitution thereof herein recognized."
The generals now turned over the government to the recently elected radical officials and retired into the background. Military reconstruction was thus accomplished in all the States except Virginia, Mississippi, and Texas.
[CHAPTER VII.]
The Trial of President Johnson
While the radical program was being executed in the South, Congress was engaged not only in supervising reconstruction but in subduing the Supreme Court and in "conquering" President Johnson. One must admire the efficiency of the radical machine. When the Southerners showed that they preferred military rule as permitted by the Act of the 2nd of March, Congress passed the Act of the 23d of March which forced the reconstruction. When the President ventured to assert his power in behalf of a considerate administration of the reconstruction acts, Congress took the power out of his hands by the law of the 19th of July. The Southern plan to defeat the new state constitutions by abstention was no sooner made clear in the case of Alabama than Congress came to the rescue with the Act of March 11, 1868.
Had it seemed necessary, Congress would have handled the Supreme Court as it did the Southerners. The opponents of radical reconstruction were anxious to get the reconstruction laws of March, 1867, before the Court. Chief Justice Chase was known to be opposed to military reconstruction, and four other justices were, it was believed, doubtful of the constitutionality of the laws. A series of conservative decisions gave hope to those who looked to the Court for relief. The first decision, in the case of ex parte Milligan, declared unconstitutional the trials of civilians by military commissions when civil courts were open. A few months later, in the cases of Cummings vs. Missouri and ex parte Garland, the Court declared invalid, because ex post facto, the state laws designed to punish former Confederates.
But the first attempts to get the reconstruction acts before the Supreme Court failed. The State of Mississippi, in April, 1867, brought suit to restrain the President from executing the reconstruction acts. The Court refused to interfere with the Executive. A similar suit was then brought against Secretary Stanton by Georgia with a like result. But in 1868, in the case of ex parte McCardle, it appeared that the question of the constitutionality of the reconstruction acts would be passed upon. McCardle, a Mississippi editor arrested for opposition to reconstruction and convicted by military commission, appealed to the Supreme Court, which asserted its jurisdiction. But the radicals in alarm rushed through Congress an act (March 27, 1868) which took away from the Court its jurisdiction in cases arising under the reconstruction acts. The highest court was thus silenced.
The attempt to remove the President from office was the only part of the radical program that failed, and this by the narrowest of margins. During the spring and summer of 1866 there was some talk among politicians of impeaching President Johnson, and in December a resolution was introduced by Representative Ashley of Ohio looking toward impeachment. Though the committee charged with the investigation of "the official conduct of Andrew Johnson" reported that enough testimony had been taken to justify further inquiry, the House took no action. There were no less than five attempts at impeachment during the next year. Stevens, Butler, and others were anxious to get the President out of the way, but the majority were as yet unwilling to impeach for merely political reasons. There were some who thought that the radicals had sufficient majorities to ensure all needed legislation and did not relish the thought of Ben Wade in the presidency. ¹ Others considered that no just grounds for action had been found in the several investigations of Johnson's record. Besides, the President's authority and influence had been much curtailed by the legislation relating to the Freedmen's Bureau, tenure of office, reconstruction, and command of the army, and Congress had also refused to recognize his amnesty and pardoning powers.
¹ Senator Wade of Ohio was President pro tempore of the Senate and by the act of 1791 would succeed President Johnson if he were removed from office.