The Life of Lyman Trumbull
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While the Civil Rights Bill was pending in the House, we have seen that Bingham, of Ohio, made a speech against it and voted against it, holding it to be unconstitutional. He had supported the Freedmen's Bureau Bill because it applied only to states in the inchoate condition which then existed. It was to be inoperative in any state, when restored to its constitutional relations with the Union. The Civil Rights Bill, on the other hand, was to apply to the whole country, North and South, without limit as to time, and to affect the civil and criminal code of every State Government. He held that there was no constitutional warrant for this, either in the Thirteenth Amendment or elsewhere. In order to cure the supposed defect, Bingham proposed to the Reconstruction Committee a new constitutional amendment in these words:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states, and to all persons in the several states equal protection in the rights of life, liberty, and property.
This was agreed to by the committee, but before it was reported to the House, Stevens presented a series of amendments consisting of five sections which had been prepared by Robert Dale Owen, a distinguished publicist, who was not a member of the Congress. This series had met Stevens's approval, and after some delay and some changes it was adopted by the committee. Bingham then withdrew his own proposed amendment and offered the following in place of it, which was adopted as section one:
No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
The difference between this provision and the first one proposed by Bingham was the whole difference between giving Congress power to pass laws for the administration of justice in the states and merely prohibiting the states from making discriminations between citizens. There was no definition of citizenship in the amendment as reported by the joint committee. Apparently they relied upon the Civil Rights Act, which had been passed over the President's veto, to supply that definition, but shortly before the final vote was taken in the Senate, Howard, who had charge of the measure in the temporary illness of Fessenden, proposed the following words to be placed at the beginning of the first section.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
The reason for adopting this clause was to validate the corresponding part of the Civil Rights Act and put it beyond repeal, in the event that the Republicans should at some future time lose control of Congress.
In addition to the first section, as shown above, the amendment provided that Representatives should be apportioned among the several states according to population, but that when the right to vote was denied in any state to any of the male inhabitants who were twenty-one years of age and citizens of the United States, except for rebellion or other crime, the representation of such state in Congress and the Electoral College should be proportionately reduced. Also that no person should hold any office under the United States or any state who, having previously taken an oath to support the Constitution of the United States, had engaged in insurrection or rebellion against the same, but that Congress might, by a two-thirds vote, remove such disability. Also that the validity of the public debt of the United States should not be questioned, but that no debt incurred in aid of insurrection or rebellion should ever be paid by the United States or any state. The concluding section provided that Congress should have power to enforce by appropriate legislation the provisions of the article.
The Fourteenth Amendment passed the Senate June 8, by 33 to 11, and the House June 13, by 138 to 36. Sumner had opposed it bitterly in debate because it dodged, as he said, the question of negro suffrage; but when the vote was taken he recorded himself in the affirmative.
The report of the committee giving the reasons for their action was submitted on the 18th of June. It held that the seceding states, having withdrawn from Congress and levied war against the United States, could be restored to their former places only by permission of the constitutional power against which they had rebelled acting through all the coördinate branches of the Government and not by the executive department alone.
If the President [it said] may, at his will and under his own authority, whether as military commander, or chief executive, qualify persons to appoint Senators and elect Representatives, and empower others to elect and appoint them, he thereby practically controls the organization of the legislative department. The constitutional form of government is thereby practically destroyed, and its powers absorbed by the Executive. And while your committee do not for a moment impute to the President any such design, but cheerfully concede to him the most patriotic motives, they cannot but look with alarm upon a precedent so fraught with danger to the Republic.
This conclusion was logical but misleading. The danger to the Republic lay not in the absorption of powers by the Executive, but in the prolongation of chaos, in dethroning intelligence, and arming ignorance in the desolated districts of the South.96
Stevens also reported a bill "to provide for restoring the states lately in insurrection to their full political rights." It recited that whenever the Fourteenth Amendment should become a part of the Constitution, and any state lately in insurrection should have ratified it and conformed itself thereto, its duly elected Senators and Representatives would be admissible to seats in Congress. This bill was not acted on, but lay on the table of each house awaiting the action of the Southern States on the proposed amendment.
On July 23, the two houses adopted a preamble and joint resolution admitting Tennessee to her former relations to the Union. The preamble recited that that state had ratified the Thirteenth and Fourteenth Amendments to the Constitution. There were only four negative votes on the Tennessee bill: Brown and Sumner, Republicans, and Buckalew and McDougall, Democrats. The President signed the bill, but he added a brief message explaining that his reason for doing so was that he desired to remove every cause of further delay, whether real or imaginary, to the admission of the Representatives of Tennessee, but he affirmed that Congress could not rightfully make the passage of such a law a condition precedent to such admission in the case of Tennessee, or of any other state.
The next event of importance in the controversy over Reconstruction was the National Union Convention held in Philadelphia on the 14th of August. It was composed of delegates from all the states and territories, North and South, who sustained the President's policy and acquiesced in the results of the war, including the abolition of slavery. This came to be known as the "Arm-in-Arm Convention" as the procession leading to the platform was headed by two delegates, one from Massachusetts and one from South Carolina, walking together with their arms joined. The signers of the call embraced the names of A. W. Randall, ex-governor of Wisconsin, Senators Cowan, Doolittle, Fowler, Norton, Dixon, Nesmith, and Hendricks, and ex-senator Browning, then Secretary of the Interior. The convention itself was eminently respectable in point of numbers and character. It was presided over by Senator Doolittle, and the chairman of its Committee on Resolutions was Senator Cowan. The resolutions adopted were ten in number and were faultless in principle and in expression. They were conveyed to the President by a committee of seventy-two persons. The effect of this dignified movement was offset and neutralized in large part by one paragraph of the President's reply to the presentation speech, namely:
We have witnessed in one department of the Government every endeavor to prevent the restoration of peace, harmony, and union. We have seen hanging upon the verge of the Government, as it were, a body called, or which assumed to be, the Congress of the United States, while in fact it is a Congress of only a part of the states. We have seen this Congress pretend to be for the Union when its every step and act tended to perpetuate disunion and make the disruption of the states inevitable. Instead of promoting reconciliation and harmony its legislation has partaken of the character of penalties, retaliation, and revenge. This has been the course and policy of your Government.
This impeachment of the legality of Congress was followed by a battle in the political field, which raged with increasing fury during the whole remainder of Johnson's term of office and projected itself into the two terms of President Grant and the beginning of that of President Hayes, embracing the episodes of the impeachment trial and the Liberal Republican movement of 1872. All of this turmoil, and the suffering which it brought upon the South, would, probably, have been avoided if Lincoln, with his strong hold upon the loyal sentiment of the country and his readiness to conciliate opponents, without surrendering principle, had not been assassinated. They became possible if not inevitable when the presidential chair was taken, in a time of crisis, by a man of combative temper, without prestige in the North, and devoid of tact although of good intentions and undoubted patriotism.
The Southern States refused to agree to the Fourteenth Amendment. To them the insuperable objection was the clause excluding from the office-holding class those who had taken an oath to support the Constitution of the United States and had afterwards engaged in insurrection against the same. The common people refused to accept better terms than were accorded to their leaders. This was true chivalry and is not to be condemned, but the consequence was an increase of the power of the radicals in the North. It disabled conservatives like Fessenden, Trumbull, and Grimes in Congress, John A. Andrew, Henry Ward Beecher, and William C. Bryant, influential in other walks in life, from making effective resistance to the measures of Sumner and Stevens. If the Fourteenth Amendment had been ratified by any of the other ex-Confederate States, such states would have been admitted at once as Tennessee was. Both Wade and Howard, hot radicals as they were, refused to go with Sumner when he insisted that further conditions should be exacted. When he offered an amendment looking to negro suffrage, Howard said that the Joint Committee on Reconstruction had maturely considered that question and had carefully abstained from interfering with "that very sacred right"—the right of each state to regulate the suffrage within its own limits. He argued that it was inexpedient in a party point of view to do so, and predicted that if the rebel states were coerced to adopt negro suffrage by an act of Congress, or by constitutional amendment, they would rid themselves of it after gaining admission.97
CHAPTER XIX
CROSSING THE RUBICON
On the 17th of December, 1866, the Supreme Court rendered its decision in the Milligan case, which had reached that tribunal on a certificate of disagreement between the two judges of the United States Circuit Court for Indiana. Milligan, a citizen, not in the military or naval service, had been arrested in October, 1864, by General A. P. Hovey, commanding the military district of Indiana, for alleged treasonable acts, had been tried by a military commission, found guilty, and sentenced to be hanged on the 19th day of May, 1865. He petitioned the court for a discharge from custody under the terms of the Habeas Corpus Act passed by Congress March 3, 1863. He affirmed that, since his arrest, there had been a session of the grand jury in his district and that it had adjourned without finding an indictment against him. The act of Congress provided that the names of all civilians arrested by the military authorities in places where the courts were open should be reported to the judges within twenty days after their arrest, and that if they were not indicted at the first term of court thereafter they should be set at liberty.
This question had been pretty thoroughly thrashed out in the Vallandigham case, but it had been imperfectly understood; President Lincoln had gone astray in that labyrinth, and judges on the bench had differed from each other in their interpretation of an unambiguous statute. The most commonly accepted opinion was that the act of 1863 was not applicable to Copperheads, or, if it was, that it ought not to be obeyed.
The Supreme Court was unanimous in the opinion that Milligan must be discharged, since the law was plain and unequivocal, but there was a division among the nine judges of the court as to the power to try persons not in the military service, by military commission. Five judges held that Congress could not abolish trial by jury in places where the courts were open and the course of justice unimpeded. Four judges maintained that Congress might authorize military commissions to try civilians in certain cases where the civil courts were open and freely exercising their functions, although Congress had not actually done so. The five judges constituting the majority were Davis (who wrote the opinion of the court), Clifford, Nelson, Grier, and Field. The four who dissented from the argument, but not from the judgment, were Chief Justice Chase (who wrote the minority opinion), and Judges Wayne, Swayne, and Miller. Davis's opinion is not surpassed in argumentative power or in literary expression by anything in the annals of that great tribunal.
The logical consequences of the decision were tremendous, or would have been, if the public mind had been in a condition to appreciate its gravity. Not only did it follow logically that the trial and execution of Booth's fellow conspirators, Payne, Atzerodt, Herold, and Mrs. Surratt, were, in contemplation of law, no better than lynching, but that Andrew Johnson's endeavor to put an end to government by military commissions, as soon as possible, was right, and that the contrary design, by whomsoever held, was wrong.
The radicals in Congress, however, were only angered by the decision. They were not in the least disconcerted by it, but the court itself was very much so. If it had been necessary to pass a law reorganizing the court, in order to reap the fruits of the victory won in the recent elections, a majority could have been obtained for it.
Under date of January 8, 1867, the "Diary of Gideon Welles" tells us that there was a Cabinet meeting at which the President said that he wished to obtain the views of each member on the subject, already mooted, of dismantling states and throwing them into a territorial condition. A colloquy ensued which is reported as follows:
Seward was evidently taken by surprise. Said he had avoided expressing himself on these questions; did not think it judicious to anticipate them; that storms were never so furious as they threatened; but as the subject had been brought up, he would say that never, under any circumstances, could he be brought to admit that a sovereign state had been destroyed, or could be reduced to a territorial condition.
McCulloch was equally decided, that the states could not be converted into territories.
Stanton said he had communicated his views to no man. Here, in the Cabinet, he had assented to and cordially approved of every step which had been taken, to reorganize the governments of the states which had rebelled, and saw no cause to change or depart from it. Stevens's proposition he had not seen, and did not care to, for it was one of those schemes which would end in noise and smoke. He had conversed with but one Senator, Mr. Sumner, and that was one year ago, when Sumner said he disapproved of the policy of the Administration and intended to upset it. He had never since conversed with Sumner nor any one else. He did not concur in Mr. Sumner's views, nor did he think a state would or could be remanded to a territorial condition.
I stated my concurrence in the opinions which had been expressed by the Secretary of War, and that I held Congress had no power to take from a state its reserved rights and sovereignty, or to impose terms on one state which were not imposed on all states.
Stanbery said he was clear and unqualifiedly against the whole talk and theory of territorializing the states. Congress could not dismantle them. It had not the power, and on that point he would say that it was never expedient to do or attempt to do that which we had not the power to do.
Browning declared that no state could be cut down or extinguished. Congress could make and admit states, but could not destroy or extinguish them after they were made.98
This extract is rather astounding for what it tells us of Stanton's position. Simultaneously, or nearly so, Congress passed an act virtually making the General of the Army independent of the President, and prohibiting the President from assigning him to duty elsewhere than in Washington City without the consent of the Senate, except at his own request. Congressman Boutwell, of Massachusetts, tells us that this provision was privately suggested to him by Stanton and that he (Boutwell) wrote it down at the War Department as dictated by Stanton, and took it to Thaddeus Stevens who incorporated it in an appropriation bill.99
If the radicals were elated by the result of the elections, the conservatives were correspondingly depressed. It was no longer possible to prevent Stevens and Sumner from taking the lead, which they did forthwith. They crossed the Rubicon with the whole army. The Reconstruction policy initiated by Lincoln was now for the first time definitely abandoned by the Union party. In the month of February, Stevens carried through the House a bill declaring that there were no legal governments in the ten rebel states, and providing that the existing governments should be superseded by the military authority. It provided for no termination of such military government. Amendments were added by the Senate providing for constitutional conventions in those states, to be elected by the male citizens twenty-one years old and upward, of whatever race or color, except those disfranchised for participation in rebellion. It was provided further that when the constitutions so framed should contain clauses giving the elective franchise to all persons entitled to vote in the election for delegates, and when the constitutions should be ratified by a majority of the people, and when such constitutions should have been submitted to and approved by Congress, and when the states should have ratified the Fourteenth Amendment and it should have been adopted, then the states so reorganized should be entitled to representation in Congress, provided that no persons disfranchised by the Fourteenth Amendment should vote at the election or be eligible to membership of the conventions. The clause making negro suffrage a permanent condition of Reconstruction was adopted in a senatorial caucus on the motion of Sumner by a majority of two, after it had been rejected almost unanimously by the Senate committee to which it had been referred.100
Trumbull, Fessenden, and Sherman voted against Sumner's motion, but after it became the policy of the party they supported it. And here they made a mistake, for this was the act which placed the governments of ten states in the hands of the most ignorant portion of the community and disfranchised the most intelligent, entailing the direful consequences of the succeeding ten years.
The road which the dominant party had now taken was, however, taken conscientiously. Congress and the Northern people sincerely believed that slavery would be reëstablished in some form unless the negroes had the right to vote and the assurance that their votes would be counted, and that, in that case, the war would have to be fought over again. Of course, party spirit and the greed of office had a place among the impelling motives at Washington, but these considerations would not have availed had not the opinion been deep-seated that a Democratic victory won by the votes of the solid South and a minority of the North would endanger the Union.
Senator Cullom, of Illinois, who was then a member of the House, said, forty-four years later, that "the motive of the opposition to the Johnson plan of Reconstruction was a firm conviction that its success would wreck the Republican party and, by restoring the Democracy to power, bring back Southern supremacy and Northern vassalage."101
Montgomery Blair apprehended another revolution or rebellion and said that there might be two opposing governments organized in Washington. Maynard, of Tennessee, a stanch loyalist, believed that Senators and Representatives from all the states would soon make their appearance at the national capital and that those from the rebel states would join with the Democratic members from the loyal states, constitute a majority, organize, repeal the test oath, and have things their own way. Welles, while recording these opinions, held the sounder one that the South was too exhausted and the Northern Democrats too timid for such a step.102
The Reconstruction Bill passed both houses on the 20th day of February, 1867, was vetoed by the President on the 2d of March, and was repassed on the same day by more than two-thirds majority in each house, Trumbull voting in the affirmative.
It was followed by a supplementary bill even more drastic, providing for a registration of voters, and requiring each person, before he could be registered, to take an oath that he had not been disfranchised for participation in any rebellion, or civil war, against the United States, and had never held any legislative, executive, or judicial office and afterwards engaged in rebellion against the United States, or given aid or comfort to the enemies thereof. The President was not slow to perceive the monstrosity of these provisions. In his veto message he dwelt on the absurdity of expecting every man to know whether he had been disfranchised or not, and what acts amounted to "participation" or fell short of it, and what constituted the giving of aid and comfort to the enemies of the United States. With genuine pathos he added:
When I contemplate the millions of our fellow citizens of the South with no alternative left but to impose upon themselves this fearful and untried experiment of complete negro enfranchisement, and white disfranchisement (it may be) almost as complete, or submit indefinitely to the rigor of martial law without a single attribute of freemen, deprived of all the sacred guaranties of our Federal Constitution, and threatened with even worse wrongs, if any worse are possible, it seems to me their condition is the most deplorable to which any people can be reduced.
This bill was passed over the veto on the 23d of March, Trumbull voting in the affirmative. These votes, however, did not prevent him from publishing in the Chicago Advance of September 5, the same year, a carefully written article denying the power of Congress to regulate the suffrage in the states, concluding with the following paragraphs:
If the views expressed are correct, it follows that there are but two ways of securing impartial suffrage throughout the Union. One is, for the states themselves to adopt it, which is being done by some already; and now that the subject is being agitated and its justice being made apparent, it is to be hoped it will soon commend itself to all: the other is, by an amendment to the Constitution of the United States, adopting impartial suffrage throughout the Union, which to become effective must be ratified by three fourths of the States.
Amendments of the constitutions of Ohio, Kansas, and Minnesota for that purpose were then pending, but they were all voted down by the people in October and November, 1867.
Congress continued to pass supplementary Reconstruction measures at short intervals. One such authorized the commanders of the military districts to suspend or remove any persons holding any office, civil or military, in their districts and appoint other persons to fill their places and exercise their functions subject to the disapproval of the General of the Army of the United States. It was declared to be the duty of the commanders aforesaid to remove from office all persons disloyal to the United States and all who should seek to hinder, delay, or obstruct the administration of the Reconstruction Acts. Section eight of this act made members of boards of registration removable in like manner. Section eleven provided that "all the provisions of this act, and of the acts to which it is supplementary, should be construed liberally." This bill was vetoed by the President July 19, 1867, and was passed over the veto by both houses the same day. Still another supplementary act was passed on the 11th of March, 1868, relating to the election of members of Congress in the rebel states.