When Congress Tried To Rule

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Notwithstanding these divisive influences, the lineup in the Congress was not such as to make a break with the Executive inevitable. The Radicals controlled the House, but in the Senate the balance of power lay with perhaps a dozen Republican moderates of the caliber of William Pitt Fessenden of Maine and Lyman Trumbull of Illinois. Where the South was concerned the moderates harbored no vindictive or nakedly political aims. Their one demand was that as a price for readmission to the Union the seceded states give concrete evidence of their willingness to extend the blessings of the Bill of Rights to some four million newly freed Negroes.

Had Johnson seen fit to make concessions in this direction, thus inviting the support of the moderates, he might have triumphed, but he would not; he believed that the extension of civil and political rights to the Negroes was a state matter and that the federal government should refrain from interfering—at least until such time as the South was once more fully represented in Congress. Even without making any concessions he might have salvaged a part of his program had the Radicals not been led by Thad Stevens, a political strategist of unique abilities. Johnson made no concessions and Stevens made many, playing his cards so ably that by the end of 1866 the President was locked in deadly combat not merely with the Radicals but with practically the whole congressional majority.

From this point on, the real issue ceased to be who was to control Reconstruction, the Congress or the Executive. The issue had become who was to control the government. In December of 1865 the mood of Congress was merely aggressive. A year later it had become conspiratorial.

Johnson’s enemies tried to justify their course by accusing him of conspiracy. The closing days of 1866 found Congressman George S. Boutwell, the fiery Massachusetts Radical, closeted with Secretary of War Stanton. One can imagine Stanton’s perfumed beard chopping the air as he poured into Boutwell’s receptive ears a tale rife with alarums and horrible imaginings.

The Secretary, according to Boutwell’s Reminiscences , said that the President had issued orders to the Army “of which neither he nor General [of the Army] Grant had any knowledge.” He “apprehended an attempt by the President to reorganize the government by the assembling of a Congress in which members of the seceding states and Democratic members from the North might obtain control through the aid of the Executive.” Boutwell agreed with Stanton that the President’s powers must be limited. Then and there, under Stanton’s dictation, he drafted a measure making it a “misdemeanor for the President to transmit orders to any officer of the army except through the General of the Army.” Added to this were other provisions forbidding the President to remove the General of the Army—or, for that matter, even to assign him to duty outside the capital—without the advice and consent of the Senate.

This flagrant attempt to strip Johnson of his prerogatives as Commander in Chief was attached to the Army Appropriation Bill of 1867. Rather than leave the military without funds, the President signed it, taking care in his return message to note that the rider attacking his powers was unconstitutional.

The conspiratorial mood of Congress was further expressed by the passage of other bills, including the Tenure of Office Act, aimed at clipping the President’s wings. In the House, Stevens was describing the legislature as “the sovereign power of the country” and thundering that “though the President is Commanderin-chief, Congress is his commander, and God willing, he shall obey!”

In the Senate, slender and dignified John Sherman, brother of the Civil War general, while demurring at the Tenure of Office Act, was supporting the rest of the Radical program with a zeal typical of other erstwhile moderates who had seen the light and reformed. “The executive department of a republic like ours,” Senator Sherman would write later, in summation, “should be subordinate to the legislative department. The President should obey and enforce the laws, leaving to the people the duty of correcting any errors committed by their representatives in Congress.”

Nor was Congress content to chip away at the powers of the Executive. It applied its chisel also to the foundations of the Supreme Court. In the first of the four acts embodying the congressional plan of Reconstruction, the judiciary—both federal and local—was made subsidiary to the military in ten Southern states; and by the Habeas Corpus Act of 1867, state courts were forbidden to issue writs of habeas corpus except under certain circumstances. Four other acts were aimed at the Supreme Court, and while not all of them passed, together they constituted a threat to which the Court reacted as desired: in at least two cases involving defiant Southern editors, the justices took refuge in technicalities to avoid decisions that might have overturned the bayonet-carpetbag-scalawag rule that Congress had imposed upon the South.