A Just and Lasting Peace: A Documentary History of Reconstruction (30 page)

(March 14, 1867)

Prior to 1867, some Radical Republicans, convinced that the president's constant obstructionism would prohibit reconstructing the nation, sought to impeach Johnson. Most congressmen, however, favored other means of controlling him, requiring Johnson to send military orders through General Ulysses S. Grant, the general-in-chief, and passing on March 2, 1867 (over Johnson's veto), the Tenure of Office Act, a bill that restricted the executive's patronage power. Later that month,
The Nation
summarized research on the history of impeachment by Columbia College law professor Theodore William Dwight (1822–1892). The magazine's editor wrote that understanding the legal precedents of impeachment mattered to anyone who “dreads as we dread the conversion of a legal process into a weapon of party warfare.” Nine months later, the House of Representatives failed in its first attempt to impeach Johnson.

Professor Dwight, of Columbia College, has recently made a very thorough examination of the nature of impeachment, of the crimes for which this mode of prosecution may be resorted to, and of the method of procedure, and the conclusions he has reached have been published in
The American Law Register
, and subsequently in a pamphlet which now lies before us. As he is the first lawyer of any prominence, so far as we know, who has undertaken to discuss impeachment as a legal question simply, and as he is removed both by position and habits from the arena of party strife, what he says on this subject is worthy the attention of everybody to whom the forms of law, as they are to us, are of deep and paramount importance, and who dreads as we dread the conversion of a legal process into a weapon of party warfare.

Mr. Dwight has made a very full and minute examination of the precedents from which the founders of this Government derived all their notions of what impeachment was, and from which, in fact, the word impeachment derives all its meaning, and he finds that impeachment and indictment are but two different modes of attaining the same end, but both are legal processes and governed in their course by legal principles. A man can only be impeached in England in cases in which he might be indicted. He is impeached on the presentment of the House of Commons; he is indicted on the presentment of a grand jury. But neither impeachment nor indictment means anything more than that there is sufficient reason to believe the defendant guilty of the offences laid to his charge to warrant his being put on his trial before the proper court, and pending the trial he is to be subjected to no greater inconvenience or restraint or deprivation than may be deemed necessary to secure his attendance from day to day. Says Mr. Dwight:

“It may be asked why, then, is the cumbrous process of impeachment ever resorted to? The answer is, that there were often found in England persons who could not readily be tried by the common law courts, either owing to an influence which overshadowed the ordinary tribunals, or because technical rules of practice made the usual remedies scarcely worth pursuing. Moreover, impeachment was often adopted as an instrument of faction, and was especially active when society was disturbed by party contests or was in the throes of a revolution. In fact, through this process, Parliament ultimately triumphed over the executive, and Parliamentary government, with ministers responsible to the Commons for executive acts, was formed.

“When the United States Constitution was framed, trial by impeachment was fully developed. It was not, however, adopted in that instrument as a regular mode of criminal procedure, to be employed in lieu of an indictment. It was made a means of trial of a crime so far as it had a political bearing. It is used as a means of depriving officers of their offices and of disqualifying them from holding such positions in the future. Still, it is requisite that a
crime
should be committed as a basis for the accusation. The Constitution provides, in substance, that the offence, so far as it has a purely criminal aspect, shall be tried in the ordinary courts; while so far as it affects the official character, it shall be the subject of impeachment. Though the English theory and procedure still substantially continue, impeachment in our law has a comparatively narrow scope. The House of Representatives, in analogy to the English House of Commons, has the exclusive power of impeachment, and the judicial power is vested in the Senate, in analogy to its deposit in the House of Lords.”

(March 28, 1867)

Following passage of the Reconstruction Act,
The Nation
raised fundamental questions about which side in the Reconstruction debate, Congressional Radicals or President Johnson, properly interpreted the U.S. Constitution. Johnson, the editor explained, assumed that civil government essentially had been restored in the former Confederate states, and thus opposed Congress authorizing martial law in the South and regulating voting rights. Advocating that the nation's leaders adhere strictly to the Constitution but not construct it in a strict manner,
The Nation
sided with the Radicals.

. . . Some journals—the New York
Times
for one—which, during the war, unhesitatingly justified the suspension of the
habeas corpus
without the authority of Congress, the establishment of military commissions in loyal States, and various other measures the unconstitutionality of which is no longer in doubt, if it ever was—are now amazed and afflicted at what they assume to be the unquestioned disregard of Congress for the Constitution. In this lamentation they are of course joined by that larger number of journals which denounced the unconstitutional acts of Mr. Lincoln, but applauded to the skies the more unconstitutional (because less necessary) acts of Mr. Johnson. . . .

The next objection is to the suspension of the
habeas corpus
by act of Congress, a measure for which we have no special affection, but as to which we must here consider only the question of legitimate
power
, and not the question of expediency. It is said that the rebellion is over, and therefore that the power to suspend this writ has expired. It is true that all organized war is over; but is it to be imagined that the suspension of the writ must cease upon the instant that the last rebel army lays down its arms? Do all the rights of war cease at that moment? If so, no prisoner of war could have been lawfully detained after that time, and all the precautions and machinery incident to a state of war must then have been instantly abandoned. We all know that there is no such rule. Mr. Johnson certainly never acted upon it. No government or military commander ever did. The state of war lasts until society is restored to its natural and normal condition. If the war is between distinct nations, it lasts until a treaty is signed, even though months elapse, during which the vanquished nation has not a man under arms. If the war is a civil one, it lasts until civil government is fully restored by legitimate authority. This has not been done in the Southern States. Mr. Johnson thinks it has, and utterly ignores all contrary opinions. His veto messages have been carefully framed not to controvert the arguments by which Congress justified its action, but to give the impression to the world at large that no such arguments were thought of by any one. There is something ingenious, but not ingenuous, in this mode of carrying on a public controversy; and the fact that ten men read the veto messages to one who reads the speeches or other arguments in confutation of them, gave Mr. Johnson an immense advantage. Such tricks of argument are common among unscrupulous lawyers, and it is by some such persons, we surmise, that the Presidential messages have been written.

Of the same class is the objection to the recent law regulating the elective franchise in the rebel States. Mr. Johnson suggests, with an air of mild surprise, that it has never before been deemed within the power of Congress to regulate that subject within any of the States. The fact that these States had become so utterly disorganized as to make the interference of the national Government necessary, in pursuance of an express provision of the Constitution, and the further fact that he had himself acted upon this theory, regulating the right of suffrage in these same States according to his own will, he entirely keeps out of sight.

This poor example of an unworthy Executive is religiously followed by all his supporters and apologists. They gladly quote every hasty expression of impatience with constitutional restraint which they can find in the speeches of Congressmen opposed to the President's doctrine; but they never allow their readers to suspect that the Congressional policy is believed by any one to be warranted by the Constitution. The establishment of martial law in the rebel States is probably the most doubtful of any of the measures of Congress; yet its validity, assuming the continuance of the war, has been expressly affirmed by four judges of the Supreme Court, one of them being a Georgia Democrat. Nor did the opinion of the majority of the court in the Milligan case at all affect this question, unless by inference it conceded the power to Congress. Mr. Johnson certainly claimed this power for himself, maintaining and administering martial law until civil government in
his
opinion was regularly organized. Congress simply proposes to do the same thing until in
its
opinion civil government is regularly organized. Its power to do so is far more clear than was Mr. Johnson's, while its jurisdiction to determine the validity of the governments set up at the South is indisputable.

In conclusion, we expect always to advocate a strict adherence to the Constitution, but not a strict construction of it. Such a construction has been vehemently advocated, but never maintained. Jefferson, who was its ablest advocate among our earliest statesmen, was compelled to violate it; and Calhoun himself would have done so had he been President in a time of emergency. No human wisdom could frame a detailed plan of government that would not at some period suffocate the nation if strictly construed. We do not believe that the framers of the Constitution ever contemplated the possibility of such a war as we have just witnessed, and we therefore do not believe that all its restrictions were designed to be severely applied to such a case. A very wide scope must be allowed to legislative action under such difficulties, and a liberal interpretation should be given to the general words of the Constitution. But we do not imagine that Congress is absolved by these difficulties from obedience to the fundamental law, nor have we seen any evidence that Congress supposes itself to be so. It has preferred some other dictionary to Johnson's, and this is the origin of all the trouble.

(March 28, 1867)

As the former Confederate states mobilized to meet the requirements of the Reconstruction Act (and the three supplementary measures that followed it), for the first time in their history, white Southerners found themselves engaging with black voters and soliciting blacks' votes.
The Nation
raised the question of which entitlement—education for the freedpeople or their enfranchisement—mattered most. The editor concluded that suffrage was the foundation upon which all other liberties would build.

The addresses of Messrs. Wade Hampton, Arthur, Talley, and others to the colored men the other day in Charleston, S. C., prove pretty clearly that those were right who maintained that negro suffrage, if it did nothing else, would at least secure decent treatment for the negroes from their white neighbors. If we had not witnessed so many wonderful things during the last six years, we should find it exceedingly difficult to believe that the white orators who spoke on this occasion were really men of the same breed as those who supplied South Carolina with its law, morals, theology, and political philosophy before the war. If there was anything fixed in Southern notions of the arrangement of the universe, it was that the negro was utterly incapable of taking care of himself, that he would only work under the lash, that education would simply develop his powers of mischief, and that civilization could only be preserved in communities in which negroes abounded by the rigid domination of the whites. When, therefore, one hears Mr. Wade Hampton informing a crowd of colored men that they are fellow-citizens, and that the prosperity of the State will depend on their cordial co-operation with the whites in industry and politics; and Mr. Arthur informing them “that education would go far to make them mentally and morally the equals of the whites;” and Mr. Talley inviting them “to work shoulder to shoulder with the whites” for the regeneration of the South, and to trust to their “old friends,” their white neighbors, rather than to Northerners, those who refused to believe that the franchise could do the negro any good may well rub their eyes. Luckily, too, the character of this meeting has been such as to make all arguments based on what occurred at it
à fortiori
arguments. It took place in the chief city of the State in which most of the extreme Southern theories of politics and religion were hatched and preached; in which the negroes bear the largest proportion to the white population, and in which, therefore, their admission to political equality may be expected, on the old Southern theory of their character and capacity, to work the greatest mischief; and, though last not least, the white speakers were drawn from the class which has always been foremost in its hostility not only to negro emancipation but to free society, or to any form of society in which the laborer is not owned. When Wade Hampton comes out and avows his submission to the new order of things and his hopefulness about it, the weaker brethren of his political church may well take courage and be of good cheer.

We have always feared that if the work of educating the Southern negroes were allowed to flag when the franchise was bestowed on them, if they were not, as fast as possible, brought into contact with Northern opinion by the diffusion amongst them of the arts of reading and writing, they might so use their political power as to do serious injury both to themselves and the country. That this is no chimera we know from what we see happening amongst the Irish wherever they are congregated in large masses, as they are now in some of our large cities and in the coal districts of Pennsylvania. And we have feared that if the provision of means of popular education were left optional with the States, the whites might be so opposed to it and the negroes so indifferent about it that schools might never be established in sufficient numbers to cope with the dense and almost heathen ignorance with which the South is overshadowed. We feared, too, that if the provision of security for life and property at the South were left, as a great many good people a year ago wanted it to be left, to “the laws of political economy,” Northern philanthropy would, once the troops were withdrawn, be allowed but scant opportunities for its work. And we confess we have not got over these fears. It is true there is manifested amongst the negroes a very remarkable and, we believe, an increasing thirst for knowledge, and that the best class of whites do see clearly the extent to which Southern prosperity must depend on the intelligence of its inhabitants of all races. But, on the other hand, we have not yet seen the normal working of the new state of things. The whites are busily engaged at present in getting rid of the Yankees. They have tried one way and failed; they are now trying another, and how they will behave when the Yankees are gone we believe nobody knows. We say, therefore, that there is no certainty as to the course Southerners will take in the matter of education once the hand of the North has been taken off them, and the data we have for the formation of a judgment as to the extent to which the negroes will be able or ready to provide it for themselves are still too slight to warrant anybody in speaking confidently about it.

But one thing is clear, that the ballot will provide for the negro, what we have always predicted it would provide, the first essential of civilization, and that is security from violence. This comes before education and before everything else; without it civilization is not possible, and the Federal Government could not have effectually provided it. But with the ballot every negro has the means of punishing any officer of the Government for inattention to any claim for lawful redress. Every politician now knows that to succeed at the South he must address colored people in a civil and respectful manner, and the habit once formed amongst politicians, it will rapidly diffuse itself amongst all other classes. Whenever we have to co-operate with men in any field, we must be polite to them, must at least pretend to respect them; and, exaggerated as the assertion may seem, there is nothing which raises a degraded race more rapidly than respectful treatment at the hands of those whom they have been accustomed to look up to. No men or women of ordinary mould can long respect themselves if nobody else seems to respect them, and although self-respect is not the first of the virtues, it lies at the root of nearly all the others. In reforming people who have for any cause fallen very low, half the work is done when we have given them a proper sense of their own dignity and value. This, too, we fully believe the suffrage will give the freedmen, and from this we confidently expect all other things to flow.