VII RISE OF THE CONGRESSIONAL PLAN (continued 2)

An interruption of his argument by Mr. Wade drew from the Virginia Senator a query rather embarrassing to the Ohio statesman. “Where,” asked Carlile, “does the Senator derive the power to appoint a governor for a State, a State which he acknowledges to be in existence, a State government that he acknowledges to be in existence, a State government that he acknowledges it to be his duty to protect and maintain? By what provision of the Constitution does the Senator derive 269the authority to appoint for such a State an executive head?” Mr. Wade replied that when the Constitution imposed the duty of guaranteeing a republican form of government it conferred the power to do so, and he in turn inquired, “Is not that good law?” “No, sir,” answered Carlile, who proceeded: “Now, Mr. President, I will satisfy the Senator himself, I think; and really it is not necessary for me to attempt to satisfy him, for he is too good a lawyer not to know the meaning of the word ‘guaranty.’ What is it? Does the authority to ‘guaranty to each State in this Union a republican form of government’ authorize this Union to set up a government, to create a government, or to make a government? Is the maker of a note the man who guaranties its payment? There is no man in the Senate who knows better the definition and legal significance of the word ‘guaranty’ than the Senator from Ohio, and none, I am sure, is more familiar, too, with the power that was intended to be conferred by this provision of the Constitution.” After admitting that he would bring the power of the Government to bear on a faction who undertook to establish a monarchical form of government, Mr. Wade put this hypothetical case: “Suppose now that we have conquered them and the people are still bent on their monarchy, shall we not guaranty a republican government to them by putting one over them?” “If the Senator be right,” answered Carlile, “Mr. Madison, the author of the Constitution, was wrong.” He then quoted from the forty-third number of the Federalist:

“To guaranty to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.”

In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.

270“The very case put by Senator Wade,” observed Carlile; “and how it is to be done is stated:”

The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.... It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the General Government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments can be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered that if the General Government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government, which supposes a preëxisting government of the form which is to be guarantied.

Sustained in his position by Madison’s commentary Carlile resumed: “Now, sir, is the Senator answered?... It is not claimed or pretended, I suppose, by the Senator from Ohio, or by any advocate of this bill, that under any other provision of the Constitution can a pretext be afforded for the assertion of such a power as this bill proposes to assert.” To Senator Wilkinson’s inquiry, what would the Government of the United States do if the people of South Carolina determined that they would not have a republican form of government in that State, the Virginia Senator answered:

“I would have the Government of the United States do nothing that it has not the power under the Constitution to do, because I believe that the Government of the United States is a Government of limited powers. I believe it to be its duty under the grant of power in the Constitution to guaranty the existence of a preëxisting republican government. That government existed in South Carolina; the people have not 271determined, at least before this war they had not determined, to have any other than a republican form of government. We had recognized that government as a republican form of government by the recognition of the State in all its departments and the admission of all its national representatives. It is made the duty of the Government of the United States, not of Congress; and I desire to call the attention of the Senator to that, because it bears upon his assumption for Congress of power which does not belong to the Executive. It is not alone the duty of Congress to guaranty a republican form of government to the people of the several States; the extent of that guarantee is not limited alone to the means which Congress may employ; but the words of the Constitution are ‘the United States shall guaranty.’ Hence every department of the Government is equally bound; and Congress being the legislative branch of course participates to a greater extent in the discharge of that duty.”

After a discussion with Mr. Clark, Carlile proceeded in his argument: “But, sir, the Senator from Ohio says the Union is to be preserved. So say I. Upon what principle are these States to come back into the Union? The people, says the Senator from Ohio, will meet you with that inquiry. Sir, when was ever such an inquiry suggested to the brain of any loyal man in this Union? When was such an inquiry ever put? Never until after a policy different from that which characterized the commencement of this struggle was entered upon by the party in power. All said the Union was to be restored; all accepted the struggle as the use of the military power of the Government in the restoration of the Union. What Union? The Union of the Constitution. The Union into which new States are to be admitted. It is not into ‘a Union’ but into ‘this Union’ that the States are admitted. What Union? The Union of the Constitution, none other; and he who seeks to preserve the Union can only do it by an 272observance of the Constitution and of the constitutional means to restore it, not reconstruct it.

“... In this Union, created by this Constitution, of limited and delegated powers, all prescribed and written in the instrument, you propose to exercise your legislative power by usurping the rights and liberties of the people, a power which all the people you represent could not use or could not exert without the destruction of the Union which the Constitution formed. There is no power in this Government, there is no power in the parties to this Government, there is no power in all the States of this Union to prescribe a constitution for the little State of Rhode Island. If every other State in the Union, the adhering as well as the rebellious States, if every man, woman, and child in them were to meet and prescribe a constitution for the people of Rhode Island, they would have no power or authority to do so under the Union; and tell me where the people’s representatives derive the power to do that which all the people in their collective capacity, save the small minority which constitutes that State, cannot do?”^[335]

Mr. Carlile emphasized the fact that the bill under consideration was not a war measure. In a running argument with several Senators he showed both a ready and comprehensive knowledge of the Constitution and made some telling points against the bill as well as against the radical tendencies in Congress. His speech was, perhaps, the very ablest delivered by any Senator in opposition to the proposed measure. At its conclusion Mr. Brown’s amendment was agreed to.

An amendment offered by Charles Sumner to enact the Emancipation Proclamation into a law was rejected by a vote of 21 to 11. The Massachusetts statesman did not wish, he said, to see the edict of freedom “left to float on a Presidential proclamation.”^[336]

273The bill concerning States in insurrection against the United States then passed the Senate by 26 yeas to 3 nays.^[337] When the vote was taken 20 Senators were absent. On the succeeding day, July 2, 1864, a message announced the disagreement of the House to the Senate amendment and requested a committee of conference. A subsequent motion of Mr. Wade that the Senate recede from its amendment and agree to the bill of the House was carried after some discussion by a vote of 18 to 14, thus passing the bill on the same day.^[338] The names of Doolittle, Henderson, Ten Eyck and Trumbull voting with the Democrats in opposition foreshadowed that division in the Republican ranks which afterwards occurred.

The history of this famous bill from the moment of its passage by Congress until the publication a week later of the President’s proclamation concerning it is best related in the Life of Mr. Lincoln by his private secretaries, Messrs. Nicolay and Hay. These writers possessed an unusual opportunity for ascertaining the sentiments of the President upon nearly every question of public interest.

“Congress,” says the diary of Mr. Hay, “was to adjourn at noon on the Fourth of July; the President was in his room at the Capitol signing bills, which were laid before him as they were brought from the two Houses. When this important bill was placed before him he laid it aside and went on with the other work of the moment. Several prominent members entered in a state of intense anxiety over the fate of the bill. Mr. Sumner and Mr. Boutwell, while their nervousness was evident, refrained from any comment. Zachariah Chandler, who was unabashed in any mortal presence, roundly asked the President if he intended to sign the bill. The President replied: ‘This bill has been placed before me 274a few moments before Congress adjourns. It is a matter of too much importance to be swallowed in that way.’ ‘If it is vetoed,’ cried Mr. Chandler, ‘it will damage us fearfully in the Northwest. The important point is that one prohibiting slavery in the reconstructed States.’ Mr. Lincoln said: ‘That is the point on which I doubt the authority of Congress to act.’ ‘It is no more than you have done yourself,’ said the Senator. The President answered: ‘I conceive that I may in an emergency do things on military grounds which cannot be done constitutionally by Congress.’ Mr. Chandler, expressing his deep chagrin, went out, and the President, addressing the members of the Cabinet who were seated with him, said: ‘I do not see how any of us now can deny and contradict what we have always said, that Congress has no constitutional power over slavery in the States.’ Mr. Fessenden expressed his entire agreement with this view. ‘I have even had my doubts,’ he said, ‘as to the constitutional efficacy of your own decree of emancipation, in those cases where it has not been carried into effect by the actual advance of the army.’

“The President said: ‘This bill and the position of these gentlemen seem to me, in asserting that the insurrectionary States are no longer in the Union, to make the fatal admission that States, whenever they please, may of their own motion dissolve their connection with the Union. Now we cannot survive that admission, I am convinced. If that be true, I am not President; these gentlemen are not Congress. I have laboriously endeavored to avoid that question ever since it first began to be mooted, and thus to avoid confusion and disturbance in our own councils. It was to obviate this question that I earnestly favored the movement for an amendment to the Constitution abolishing slavery, which passed the Senate and failed in the House. I thought it much better, if it were possible, to restore the Union without the necessity of a violent 275quarrel among its friends as to whether certain States have been in or out of the Union during the war—a merely metaphysical question, and one unnecessary to be forced into discussion.’

“Although every member of the Cabinet agreed with the President, when, a few minutes later, he entered his carriage to go home, he foresaw the importance of the step he had resolved to take and its possibly disastrous consequences to himself. When some one said to him that the threats made by the extreme radicals had no foundation, and that people would not bolt their ticket on a question of metaphysics, he answered: ‘If they choose to make a point upon this, I do not doubt that they can do harm. They have never been friendly to me. At all events, I must keep some consciousness of being somewhere near right. I must keep some standard or principle fixed within myself.’”^[339]

A perusal of the preceding abridgment of debates shows clearly that the bill was designed by Congress as a measure of reconstruction and intended by many of its leading advocates as a rebuke of the President. He was not, however, a statesman whom even the deliberate censure of a coördinate branch of Government could hurry into an act of rashness; he had never been precipitate; indeed, the burden of radical criticism was that Mr. Lincoln was provokingly slow. This was the opinion which Charles Sumner expressed in confidential correspondence with his English friends^[340] and which Secretary Chase entered in the pages of his diary.^[341] The President was, it is true, the most cautious of men, and the fact goes far to explain the absence during his eventful administration of even a single serious blunder; the discovery 276of a gross error of judgment seldom or never rewarded the researches of his ablest critics. Though his modesty was scarcely less than his prudence, he entertained a just conception of the dignity of his office; long reflection upon constitutional questions, which made him familiar with the extent of executive power, taught him likewise to recognize those limitations which the fundamental law had imposed upon legislative action. Another characteristic which made him a formidable adversary in every controversy was a constant purpose to be always, as he expressed it himself, “somewhere near right.”

The measure had been so long under consideration that none of its provisions could have taken him by surprise, and we are justified in concluding that when the bill was presented for his approval he had already determined on his course of action. Indeed there is evidence that some of his supporters in Congress had written to their friends in Louisiana predicting the very fate that afterward befell the bill. Their outline of the President’s course admits of no other explanation than that he had communicated to them his intentions respecting it. The progress of the measure in the Senate was to be so retarded that the adjournment of Congress would relieve him of the necessity of exercising the veto, and that is precisely what happened. In the very last hour of the session it was submitted for his approval; his disposal of the bill on that occasion has already been noticed; his approval was withheld and Congress rose before the expiration of the ten days which would enact the bill into a law without his signature. Though an interested view had not been overlooked, he disregarded in discharge of his duty every personal consequence of the important step which he purposed to take. His hostility to the measure had long been suspected, but when knowledge of his failure to approve it had become a certainty the anger of the more radical members of his party became extreme. They 277had clearly been outwitted by the President and many of them, eager for retaliation, returned to their homes meditating schemes of revenge.

For the present, at least, anything like adequate discipline of Mr. Lincoln was not within their power, for the Baltimore convention, which renominated him for the Presidency, had adjourned nearly a month before. This at least was secure. His election, though not entirely a foregone conclusion, was reasonably assured; few of the discomfited members even imagined the thought of injuring their party to embarrass the President. It is easy to believe, however, that they intended such criticism of his policy as would be consistent with party success. But even here he resolved to dispute with them a field of operations which they believed entirely their own. The President, it is true, could not, even if so inclined, justify his conduct in person before the voters of every State in the Union; he could, however, and did forestall expected criticism from Congressmen by publishing a proclamation vindicating his “pocket” veto, thus destroying whatever hope remained to radical Republicans of diminishing his popularity by ascribing to him base or selfish motives for opposing the sense of the Legislative department of Government. As on other critical occasions so on this he found no precedent to guide him, but with characteristic firmness proceeded deliberately to establish one. When some of the Congressmen reached their States they found their constituents already pondering the proclamation of July 8, 1864. Its importance requires that it be quoted in full:

Whereas, at the late session, Congress passed a bill to “guarantee to certain States, whose governments have been usurped or overthrown, a republican form of government,” a copy of which is hereunto annexed;

And whereas the said bill was presented to the President of the United States for his approval less than one hour before the sine die adjournment of said session, and was not signed by him;

And whereas the said bill contains, among other things, a plan for 278restoring the States in rebellion to their proper practical relation in the Union, which plan expresses the sense of Congress upon that subject, and which plan it is now thought fit to lay before the people for their consideration:

Now, therefore, I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known, that, while I am (as I was in December last, when by proclamation I propounded a plan for restoration) unprepared, by a formal approval of this bill, to be inflexibly committed to any single plan of restoration; and, while I am also unprepared to declare that the free-State constitutions and governments already adopted and installed in Arkansas and Louisiana shall be set aside and held for naught, thereby repelling and discouraging the loyal citizens who have set up the same as to further effort, or to declare a constitutional competency in Congress to abolish slavery in States, but am at the same time sincerely hoping and expecting that a constitutional amendment abolishing slavery throughout the nation may be adopted, nevertheless I am fully satisfied with the system for restoration contained in the bill as one very proper plan for the loyal people of any State choosing to adopt it, and that I am, and at all times shall be, prepared to give the Executive aid and assistance to such people, so soon as the military resistance to the United States shall have been suppressed in any such State, and the people thereof shall have sufficiently returned to their obedience to the Constitution and laws of the United States, in which cases Military Governors will be appointed, with directions to proceed according to the bill.^[342]

This unexpected publication was very differently received by the various elements composing the Republican party; a large majority of those acting with that organization still confided in Mr. Lincoln; by the radical wing, however, he was sharply censured. Notwithstanding the necessity for harmony in the approaching campaign two of the boldest leaders, disregarding every consideration of prudence, arraigned the President in language which for severity was never surpassed by the invectives of his ablest political opponents. In the entire experience of the Republic no Executive had ever assumed to reject those provisions in a legislative measure which he disliked and adopt those that were acceptable. This is precisely what Mr. Lincoln did, and the reasons for his action he 279declared to the people with a confidence which forcibly recalls the direction of Andrew Jackson to the editor of his official organ: “Speak out to the people, sir, and tell them that instead of supporting me and my policy Congress is engaged in President-making.” There was, however, this difference: Abraham Lincoln addressed the people directly and ventured no criticism of their representatives. Like his more impulsive though not less popular predecessor he was not deceived in the reliance which he placed in the patriotic instincts of the multitude, which cared little for nice metaphysical distinctions; by the masses of the people he was trusted to the end.

By Henry Winter Davis and Benjamin F. Wade, chief authors of the bill, its progress had been watched with feverish anxiety; when convinced that their labor was lost they became greatly agitated and made no effort to conceal their indignation at the conduct of the President. Their joint protest, printed in the New York Tribune of August 5, was, perhaps, the most bitter attack made upon Mr. Lincoln during his Presidential career. Their fierce manifesto, addressed “To the supporters of the Government,” declares that the writers had “read without surprise, but not without indignation, the proclamation of the President of the 8th of July, 1864.

“The supporters of the Administration are responsible to the country for its conduct; and it is their right and duty to check the encroachments of the Executive on the authority of Congress, and to require it to confine itself to its proper sphere.”

The paper then related the history of the bill. Its treatment by the President, they declared, indicated a persistent though unavowed purpose to defeat the will of the people by the Executive perversion of the Constitution. They insinuated that only the lowest personal motives could have dictated this action. “The President,” they said, “by preventing this 280bill from becoming a law, holds the electoral votes of the rebel States at the dictation of his personal ambition.

“If those votes turn the balance in his favor, is it to be supposed that his competitor, defeated by such means, will acquiesce?

“If the rebel majority assert their supremacy in those States, and send votes which elect an enemy of the Government, will we not repel his claims?

“And is not that civil war for the Presidency inaugurated by the votes of the rebel States?

“Seriously impressed with these dangers, Congress, ‘the proper constitutional authority,’ formally declared that there are no State governments in the rebel States, and provided for their erection at a proper time; and both the Senate and the House of Representatives rejected the Senators and Representatives chosen under the authority of what the President calls the free constitution and government of Arkansas.

“The President’s proclamation ‘holds for naught’ this judgment, and discards the authority of the Supreme Court, and strides headlong toward the anarchy his proclamation of the 8th of December inaugurated.

“If electors for President be allowed to be chosen in either of those States, a sinister light will be cast on the motives which induced the President to ‘hold for naught’ the will of Congress rather than his government in Louisiana and Arkansas.

“The judgment of Congress which the President defies was the exercise of an authority exclusively vested in Congress by the Constitution, to determine what is the established government in a State, and in its own nature and by the highest judicial authority binding on all other departments of the Government.”

They ridiculed the President’s expressed hope that the constitutional 281amendment abolishing slavery might be adopted. “We curiously inquire,” continue Messrs. Wade and Davis, “on what his expectation rests, after the vote of the House of Representatives at the recent session, and in the face of the political complexion of more than enough of the States to prevent the possibility of its adoption within any reasonable time; and why he did not indulge his sincere hopes with so large an installment of the blessing as his approval of the bill would have secured?

“A more studied outrage on the legislative authority of the people has never been perpetrated.

“Congress passed a bill; the President refused to approve it, and then by proclamation puts as much of it in force as he sees fit, and proposes to execute those parts by officers unknown to the laws of the United States, and not subject to the confirmation of the Senate.

“The bill directed the appointment of provisional governors by and with the advice and consent of the Senate.

“The President, after defeating the law, proposes to appoint, without law and without the advice and consent of the Senate, military governors for the rebel States!

“He has already exercised this dictatorial usurpation in Louisiana, and defeated the bill to prevent its limitation.”

Scarcely an expression of the proclamation, which was examined in detail, escaped its share of censure or of ridicule. To suppose that the President was ignorant of the contents of the bill was out of the question, for it had been discussed, they asserted, during more than a month in the House of Representatives, by which it was passed as early as the 4th of May. It passed the Senate in absolutely the form in which it came from the House. Indeed, at the President’s request, a draft of a bill substantially the same in material points, and almost identical in those features objected to by the proclamation, 282was submitted for his consideration during the winter of 1862–1863.

The “Protest” included also a sharp contrast between the Executive plan of December 8, 1863, and that embodied in the bill which had passed Congress. That measure, said Messrs. Wade and Davis, required a majority of the voters to establish a State government, the proclamation was satisfied with one tenth; “the bill requires one oath, the proclamation another; the bill ascertains voters by registering, the proclamation by guess; the bill exacts adherence to existing territorial limits, the proclamation admits of others; the bill governs the rebel States by law, equalizing all before it, the proclamation commits them to the lawless discretion of military governors and provost marshals; the bill forbids electors for President (in the rebel States), the proclamation and defeat of the bill threaten us with civil war for the admission or exclusion of such votes....”

This arraignment of the President’s course concluded with the language of admonition, if not indeed of absolute menace: “The President has greatly presumed on the forbearance which the supporters of his Administration have so long practised, in view of the arduous conflict in which we are engaged, and the reckless ferocity of our political opponents.

“But he must understand that our support is of a cause, and not of a man; that the authority of Congress is paramount and must be respected; that the whole body of the Union men of Congress will not submit to be impeached by him of rash and unconstitutional legislation; and if he wishes our support, he must confine himself to his Executive duties,—to obey and execute, not make the laws,—to suppress by arms armed rebellion, and leave political reorganization to Congress.

“If the supporters of the Government fail to insist on this, they become responsible for the usurpations which they fail 283to rebuke, and are justly liable to the indignation of the people whose rights and security, committed to their keeping, they sacrifice.

“Let them consider the remedy for these usurpations, and, having found it, fearlessly execute it.”^[343]

The authors of this remarkable paper were eminent in the councils of their party and stood high in the estimation of Union men everywhere. Senator Wade was distinguished no less for his physical than for his moral courage—qualities impaired somewhat, it is true, by a temper fierce and vindictive. Henry Winter Davis, whose zeal for civil liberty will constitute his best claim to the gratitude of posterity, possessed literary gifts scarcely surpassed by any statesman then in public life. Though treated with extreme fairness, not to say generosity, by the President, he pursued toward the Administration a course of consistent hostility. This opposition, which even Mr. Lincoln’s tact could never disarm, has been ascribed to disappointment at his failure to obtain a place in the Cabinet. While the selection of Montgomery Blair from his own State of Maryland may have been a cause of estrangement, a sense of what Mr. Davis regarded as public duty contributed, doubtless, to intensify this feeling, which led him ultimately to think the President scarcely entitled to courteous treatment. With the Ohio Senator the pitiless maxim, vae victis, had an undoubted influence. Both were gentlemen of wide experience and acknowledged ability, and yet their vigorous and fearless arraignment of the President revealed an astonishing lack of political sagacity. They inquired, for example, on what foundation he rested his expectation of an adoption of the constitutional amendment abolishing slavery. The incorporation, soon after, of such a provision in the fundamental law shows their want of insight into the tendencies of the times. The fire of the 284prophet, indeed, was present in the protest; his inspiration was altogether wanting. Their absurd assertion that the electoral votes of Louisiana, Arkansas and Tennessee were the prime consideration with the President must be attributed to the passion rather than to the reason of his critics, for few men of that generation were more familiar with the Constitution in all its relations. Better than most of their readers they knew that the duty of counting such votes was entrusted not to a possibly interested Executive, but to a joint convention of both Houses. If the Maryland member believed the President had committed the misdemeanors charged and insinuated it was his duty to bring before the House the question of impeachment. Far less than was expressed in the protest would have been ground for investigation. If tenderness to Lincoln, a weakness of which Mr. Davis at least was never suspected, or a concern for party welfare prevented such a step, then he was himself guilty of a gross neglect of duty. Doubtless this consideration, together with the want of moderation shown in the manifesto, subjected its authors to a suspicion of insincerity. Indeed, one does not read a dozen lines of their arraignment without discovering the chief if not the sole cause of its publication. “The President,” they say, “did not sign the bill ‘to guarantee to certain States whose governments have been usurped, a republican form of government’—passed by the supporters of his Administration in both Houses of Congress after mature deliberation.” In brief, the political departments of Government had entered upon a struggle for power; Congress had been defeated, and its discomfited leaders sought to relieve their feelings by railing at the President.

Except that it probably defeated the renomination of Mr. Davis for Congress, their protest was followed by no political result of moment.^[344] In it the mass of Republicans perceived 285only the seeds of dissension within their ranks. In this view it was a source of delight to Democrats, though they felt little sympathy with either the defeated bill or the purposes of its chief authors.

286