Chapter XXII · (continued 2)

This qualified concurrence on the part of the House having been announced in the Senate, that body proceeded immediately to consider the question of acquiescence.

Mr. Sherman said that his only objection to the amendment of the House was, that it disfranchised ten or fifteen thousand leading rebels from voting at the elections, yet he was willing to agree to the amendment.

Mr. Sumner congratulated Mr. Sherman on the advanced step he had taken. "To-morrow," said Mr. Sumner, "I hope to welcome the Senator to some other height."

Mr. Sherman was unwilling to admit that he had come to Mr. Sumner's stand-point. He was willing to accept the bill, although it excluded a few thousand rebels from voting, yet "I would rather have them all vote," said he, "white and black, under the stringent restrictions of this bill, and let the governments of the Southern States that are about now to rise upon the permanent foundation of universal liberty and universal equality, stand upon the consent of the governed, white and black, former slaves and former masters."

Then followed an extended discussion of the question as to whether the Senate should agree to the amendments proposed by the House. Mr. Doolittle proposed and advocated an amendment providing that nothing in the bill should be construed to disfranchise persons who have received pardon and amnesty. This amendment was rejected—yeas, 8; nays, 33.

The vote was then taken upon the final passage of the bill as amended by the House; it passed the Senate—yeas, 35; nays, 7.

The Bill "to provide for the more efficient government of the rebel States," having thus passed both houses of Congress on the 20th of February, it was immediately submitted to the President for his approval.

On the second of March the President returned the bill to the House, in which it originated, with his objections, which were so grave that he hoped a statement of them might "have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimately rest."

The Veto Message was immediately read by the clerk of the House of Representatives. The following extracts present the President's principal objections to the measure:

"The bill places all the people of the ten States therein named under the absolute domination of military rulers. * * *

"It is not denied that the States in question have each of them an actual government, with all the powers, executive, judicial, and legislative which properly belong to a free State. They are organized like the other States of the Union, and like them they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself the law of the State upon all matters within its jurisdiction. To pronounce the supreme law-making power of an established State illegal is to say that law itself is unlawful. * * *

"The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment.

"I submit to Congress whether this measure is not, in its whole character, scope, and object, without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure.

* * * * *

"The power thus given to the commanding officer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. The law of the States is now the only rule applicable to the subjects placed under his control, and that is completely displaced by the clause which declares all interference of State authority to be null and void. He alone is permitted to determine what are rights of person or property, and he may protect them in such way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hinderance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history, or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence; there is indeed no provision by which he is authorized or required to take any evidence at all. Every thing is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. He is not bound to keep any record or make any report of his proceedings. He may arrest his victims wherever he finds them, without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do.

* * * * *

"Cruel or unusual punishment is not to be inflicted, but who is to decide what is cruel and what is unusual? * * * Each officer may define cruelty according to his own temper, and if it is not usual, he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and the almost insupportable forms of torture invented for military punishment lie within the range of choice. The sentence of a commission is not to be executed without being approved by the commander, if it affects life or liberty, and a sentence of death must be approved by the President. This applies to cases in which there has been a trial and sentence. I take it to be clear, under this bill, that the military commander may condemn to death without even the form of a trial by a military commission, so that the life of the condemned may depend upon the will of two men instead of one.

"It is plain that the authority here given to the military officer amounts to absolute despotism.

* * * * *

"I come now to a question which is, if possible, still more important. Have we the power to establish and carry into execution a measure like this? I answer certainly not, if we derive our authority from the Constitution, and if we are bound by the limitations which it imposes. This proposition is perfectly clear; that no branch of the Federal Government, executive, legislative, or judicial, can have any just powers except those which it derives through and exercises under the organic law of the Union. Outside of the Constitution we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our function and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. "We have no right to do in one place more than in another that which the Constitution says we shall not do at all. If, therefore, the Southern States were in truth out of the Union, we could not treat their people in a way which the fundamental law forbids. * * *

"If an insurrection should take place in one of our States against the authority of the State government, and end in the overthrowing of those who planned it, would they take away the rights of all the people of the counties where it was favored by a part or a majority of the population? Could they for such a reason be wholly outlawed and deprived of their representation in the Legislature? I have always contended that the Government of the United States was sovereign within its constitutional sphere; that it executed its laws like the States themselves, by applying its coercive power directly to individuals; and that it could put down insurrection with the same effect as a State and no other. The opposite doctrine is the worst heresy of those who advocated secession, and can not be agreed to without admitting that heresy to be right.

* * * * *

"This is a bill passed by Congress in time of peace. There is not in any one of the States brought under its operation either war or insurrection. The laws of the States and of the Federal Government are all in undisturbed and harmonious operation. The courts, State and Federal, are open and in the full exercise of their proper authority. Over every State comprised in these five military districts life, liberty, and property are secured by State laws and Federal laws, and the national Constitution is every-where enforced and every-were obeyed.

* * * * *

"Actual war, foreign invasion, domestic insurrection—none of these appear, and none of these in fact exist. It is not even recited that any sort of war or insurrection is threatened."

"Upon this question of constitutional law and the power of Congress," the President gave quotations from "a recent decision of the Supreme Court ex parte Milligan." Having commented upon this opinion, the President proceeded with his objections:

"I need not say to the Representatives of the American people that their Constitution forbids the exercise of judicial power in any way but one; that is, by the ordained and established courts. It is equally well known that, in all criminal cases, a trial by jury is made indispensable by the express words of that instrument. I will not enlarge on the inestimable value of the right thus secured to every freeman, or speak of the danger to public liberty, in all parts of the country, which must ensue from a denial of it anywhere, or upon any pretense. * * *

"The United States are bound to guaranty to each State a republican form of government Can it be pretended that this obligation is not palpably broken if we carry out a measure like this, which wipes away every vestige of republican government in ten States, and put the life, property, liberty and honor of all the people in each of them under the domination of a single person clothed with unlimited authority.

* * * * *

"The purpose and object of the bill—the general intent which pervades it from beginning to end—is to change the entire structure and character of the State governments, and to compel them by force to the adoption of organic laws and regulations which they are unwilling to accept if left to themselves. The negroes have not asked for the privilege of voting; the vast majority of them have no idea what it means. This bill not only thrusts it into their hands, but compels them, as well as the whites, to use it in a particular way. If they do not form a Constitution with prescribed articles in it, and afterward elect a Legislature which will act upon certain measures in a prescribed way, neither blacks nor whites can be relieved from the slavery which the bill imposes upon them. Without pausing here to consider the policy or impolicy of Africanizing the Southern part of our territory, I would simply ask the attention of Congress to that manifest, well-known, and universally-acknowledged rule of constitutional law which declares that the Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State. To force the right of suffrage out of the hands of the white people and into the hands of the negroes is an arbitrary violation of this principle.

"This bill imposes martial law at once, and its operations will begin so soon as the General and his troops can be put in place. The dread alternative between its harsh rule and compliance with the terms of this measure is not suspended, nor are the people afforded any time for free deliberation. The bill says to them, Take martial law first, then deliberate.

* * * * *

"The bill also denies the legality of the governments of ten of the States which participated in the ratification of the amendment to the Federal Constitution abolishing slavery forever within the jurisdiction of the United States, and practically excludes them from the Union. * * *

"That the measure proposed by this bill does violate the Constitution in the particulars mentioned, and in many other ways which I forbear to enumerate is too clear to admit of the least doubt.

* * * * *

"I am thoroughly convinced that any settlement, or compromise, or plan of action which is inconsistent with the principles of the Constitution, will not only be unavailing, but mischievous; that it will but multiply the present evils instead of removing them. The Constitution, in its whole integrity and vigor, throughout the length and breadth of the land, is the best of all compromises. Besides, our duty does not, in my judgment, leave us a choice between that and any other. I believe that it contains the remedy that is so much needed, and that if the cooerdinate branches of the Government would unite upon its provisions, they would be found broad enough and strong enough to sustain, in time of peace, the nation which they bore safely through the ordeal of a protracted civil war. Among the most sacred guarantees of that instrument are those which declare that 'each State shall have at least one Representative,' and that 'no State, without its consent, shall be deprived of its equal suffrage in the Senate.' Each house is made the 'judge of the elections, returns, and qualifications of its own members,' and may, 'with the concurrence of two-thirds, expel a member.'"

* * * * *

"And is it not far better that the work of restoration should be accomplished by simple compliance with the plain requirements of the Constitution, than by a recourse to measures which, in effect, destroy the States, and threaten the subversion of the General Government? All that is necessary to settle this simple but important question, without further agitation or delay, is a willingness, on the part of all, to sustain the Constitution, and carry its provisions into practical operation. If to-morrow either branch of Congress would declare that, upon the presentation of their credentials, members constitutionally elected, and loyal to the General Government, would be admitted to seats in Congress, while all others would be excluded, and their places remain vacant until the selection by the people of loyal and qualified persons; and if, at the same time, assurance were given that this policy would be continued until all the States were represented in Congress, it would send a thrill of joy throughout the entire land, as indicating the inauguration of a system which must speedily bring tranquillity to the public mind.

"While we are legislating upon subjects which are of great importance to the whole people, and which must affect all parts of the country, not only during the life of the present generation, but for ages to come, we should remember that all men are entitled at least to a hearing in the councils which decide upon the destiny of themselves and their children. At present ten States are denied representation, and when the Fortieth Congress assembles, on the fourth day of the present month, sixteen States will be without a voice in the House of Representatives. This grave fact, with the important questions before us, should induce us to pause in a course of legislation, which, looking solely to the attainment of political ends, fails to consider the rights it transgresses, the law which it violates, or the institutions which it imperils.

"ANDREW JOHNSON."

After the reading of the message, the question came up, "Shall the bill pass, the objections of the President to the contrary notwithstanding?"

Mr. Eldridge declared that it would be the duty of the minority, if it were within their physical power, to defeat the bill. "But we are conscious," said he, "that no effort of ours can prevent its passage, and the consequent accomplishment of a dissolution of the Union, and the overthrow and abandonment of our constitution of government. We can only, in the name of the Constitution, in the name of the republic, in the name of all we hold dear on earth, earnestly, solemnly protest against this action of this Congress."

Mr. Le Blond said that "the passage of this bill would be the death-knell of republican liberty upon this continent." He declared his willingness, if a sufficient number on his side of the House would stand by him, to resist to the utmost extremity of physical exhaustion the passage of this bill, which would "strike a death-blow to this Government."

Mr. Stevens would not be discourteous to those who were opposed to this bill: "I am aware," said he, "of the melancholy feelings with which they are approaching this funeral of the nation." He was unwilling, however, to lose the opportunity to pass the bill at once, and send it to the Senate, that the House might proceed to other matters.

The vote was taken, and the House passed the bill over the President's veto—yeas, 135; nays, 48. The announcement of this result was followed by great applause on the floor and in the galleries.

The immense numbers that had assembled in the galleries of the House to witness these proceedings went immediately to the other end of the Capitol to see the reception which the Veto Message would receive in the Senate. The consideration of the subject, however, was deferred until the evening session.

The Veto Message having been read in the Senate by the Secretary, the pending question at once became whether the bill should pass notwithstanding the objections of the President?

Mr. Johnson advocated the passage of the bill over the veto. "It contains," said he, speaking of the President's message, "some legal propositions which are unsound, and many errors of reasoning. I lament the course he has thought it his duty to pursue, because I see that it may result in continued turmoil and peril, not only to the South, but to the entire country. I see before me a distressed, a desolated country, and in the measure before you I think I see the means through which it may be rescued and restored erelong to prosperity and a healthful condition, and the free institutions of our country preserved."

In reply to a charge of inconsistency brought against him by Mr. Buckalew, Mr. Johnson said: "Consistency in a public man can never properly be esteemed a virtue when he becomes satisfied that it will operate to the prejudice of his country. The pride of opinion, which more or less belongs to us all, becomes, in my judgment, in a public man, a crime when it is indulged at the sacrifice or hazard of the public safety." He urged upon the people of the South their acceptance of the terms proposed by Congress. In view of the probability these overtures should be rejected, harsher measures would be resorted to.

Mr. Saulsbury expressed his admiration for the wisdom of the President in "vetoing the most iniquitous bill that ever was presented to the Federal Congress." "I hope," said he, "that there may be no man within the limits of these ten States who will participate in his own disgrace, degradation, and ruin: let them maintain their honor. If there be wrath in the vials of the Almighty, if there be arrows of vengeance in his quiver, such iniquity and injustice can not finally prove successful."

Mr. Hendricks disagreed with the Senator from Delaware that the people of the South, at once and without consideration, must turn their backs upon the proposition now made them in order to maintain their honor. He hoped they would bring to the consideration of the subject the coolest judgment and the highest patriotism. He was still opposed to the bill; he approved of the President's veto. His judgment against the measure had been "fortified and strengthened by that able document."

The discussion of the question was continued by Messrs. Buckalew, Dixon, and Davis, who spoke against the bill. The friends of the measure were content to let the subject go without a further word from them, save the solemn and final declaration of their votes.

The question being taken, the bill was passed over the veto by a vote of almost four-fifths. Thirty-eight Senators voted for the bill in its final passage, and but ten were found willing to stand by the President and his veto.

The bill whose progress through Congress has thus been traced became a law of the land in the following form:

"AN ACT to provide for the more efficient government of the rebel States

"Whereas, no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: therefore,

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said rebel States shall be divided into military districts and made subject to the military authority of the United States, as hereinafter prescribed; and for that purpose Virginia shall constitute the first district, North Carolina and South Carolina the second district, Georgia, Alabama, and Florida the third district, Mississippi and Arkansas the fourth district, and Louisiana and Texas the fifth district.

"SEC. 2. And be it further enacted, That it shall be the duty of the President to assign to the command of each of said districts an officer of the army not below the rank of brigadier general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority within the district to which he is assigned.

"SEC. 3. And be it further enacted, That it shall be the duty of each officer assigned, as aforesaid, to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or when in his judgment it may be necessary for the trial of offenders he shall have power to organize military commissions or tribunals for that purpose, and all interference, under color of State authority, with the exercise of military authority under this act shall be null and void.

"SEC. 4. And be it further enacted, 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 the laws and regulations for the government of the army shall not be affected by this act, except in so far as they conflict with its provisions: Provided, That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President.

"SEC. 5. And be it further enacted, That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such Constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its Legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and Senators and Representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such convention.

"SEC. 6. And be it further enacted, That, until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under such provisional governments who would be disqualified from holding office under the provisions of the third article of said Constitutional Amendment."

The friends of this measure were dissatisfied with it on the ground of its incompleteness in not containing provisions for carrying it into effect in accordance with the purpose of its framers. This record would be incomplete without a statement of what was done to perfect the measure in the succeeding Congress. The Fortieth Congress, meeting on the 4th of March, immediately upon the close of its predecessor, proceeded without delay to perfect and pass over the President's veto a bill supplementary to the act to provide for the more efficient government of the rebel States. By this act it was provided that the commanding general of each district should cause a registration to be made of the male citizens twenty-one years of age in his district, qualified to vote under the former act. In order to be registered as a voter under this act, a person is required to swear that he has not been disfranchised for participation in any rebellion or civil war against the United States, nor for felony; that he has never been a member of any State Legislature, nor held any executive or judicial office in any State and afterward engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that he has never taken an oath as a member of Congress 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 afterward engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof, and that he will faithfully support the Constitution and obey the laws of the United States, and encourage others to do so.

Persons thus qualified shall vote at elections held for the purpose of selecting delegates to the conventions for framing constitutions for the States.

A majority of voters so qualified shall determine whether constitutional conventions shall be held in the several States, and shall vote for delegates who shall be as numerous as the members of the most numerous branch of the Legislature of such State in the year 1860. This convention having framed a constitution, it shall be submitted to the people, and if ratified by a majority of the qualified voters, it shall be forthwith transmitted to Congress. If this constitution is satisfactory to Congress, and found to be in accordance with the provisions of the act of which this is supplementary, the State shall be declared entitled to representation. All elections are required to be by ballot, and all officers acting under the provisions of this act are required to take the test oath.