American political thought

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Keith E. Whittington

Supplementary Material
Chapter 6: Secession, Civil War, and Reconstruction – Equality and Status

Andrew Johnson, Veto of the Freedmen’s Bureau Bill (1866)1

Andrew Johnson was born in North Carolina, and had been apprenticed to a shopkeeper. At 15, he ran away, eventually settling in Tennessee and taking up his trade as a tailor. He became involved in labor politics during the Jackson administration. He proved to be a popular public speaker and was soon drawn into electoral politics as a Democrat. He rose to become governor and U.S. senator in the 1850s. When the South seceded, Johnson campaigned against secession in Tennessee and became the only Southern senator to remain in the Senate after secession. When Tennessee fell to the Union army in the spring of 1862, Lincoln named Johnson the military governor of the state, and in 1864 he was drawn onto the “National Union” ticket in an effort to pull other War Democrats to vote for Lincoln. When Lincoln was assassinated soon after his second inaugural and the surrender of the Confederacy, Johnson became president of the United States. Johnson used a combination of loyalty oaths and conditional pardons to try to restore the loyal political operation of the Southern states as soon as possible. When those state governments proved to be solidly Democratic and hostile to black civil rights, they were dissolved and replaced by congressional Reconstruction governments in 1867. Johnson and the Radical Republicans in Congress became bitter enemies as they fought over the future of Reconstruction. Johnson was the first president to have his veto overridden by Congress on a major piece of public policy, and Congress soon made policy by routinely overriding presidential vetoes. In 1868, he was impeached by the House, but narrowly acquitted by the Senate. A bid for the Democratic presidential nomination was not realized in 1868, and Johnson returned to Tennessee with Grant’s election that year.

The Second Freedmen’s Bureau Bill, along with a Civil Rights Act, passed Congress with unanimous Republican support. The bills modified presidential reconstruction by providing more federal assistance and oversight for Unionists and freed slaves in the Southern states. Johnson surprised the legislators by vetoing both bills, rejecting a conciliatory draft message prepared by Secretary of State Seward in favor a strongly worded message denouncing congressional policy. An override vote narrowly failed in the Senate. A new bill was passed and the veto was overridden a few months later. The Second Freedmen’s Bureau Bill extended the life of the Freedmen’s Bureau “until otherwise provided by law.” The Bureau was designed to provide economic and social assistance to “Freedmen and Refugees” throughout the United States under the direction of the Secretary of War and newly appointed commissioners.

What might justify the use of the military to protect rights? Why might the military be a key resource in these circumstances, rather than civilian federal employees? Would Johnson’s complaints be more compelling if not for the special circumstances of 1866? How would we know when to push for the return to normalcy after a civil war? How extensive should federal oversight of civil relations be in the South? To what extent does Johnson draw on recurrent themes in American political thought? Have the foundations of his argument been undermined by the war?
. . . .

I have, with Congress, the strongest desire to secure to the freedmen the full enjoyment of their freedom and their property and their entire independence and equality in making contracts for their labor. But the bill before me contains provisions which, in my opinion, are not warranted by the Constitution and are not well suited to accomplish the end in view. The bill proposes to establish by authority of Congress military jurisdiction over all parts of the United States containing refugees and freedmen. It would, by its very nature, apply with the most force to those parts of the United States in which the freedmen most abound; and it expressly extends the existing temporary jurisdiction of the Freedmen’s Bureau, with greatly enlarged powers, over those States in which the ordinary course of judicial proceedings has been interrupted by the rebellion. . . . The subjects over which this military jurisdiction is to extend in every part of the United States, include protection to all employees, agents, and officers of this bureau in the exercise of the duties imposed upon them by the bill. In eleven States it is further to extend over all cases affecting freedmen and refugees discriminated against by local law, custom, or prejudice. In those eleven States the bill subjects any white person who may be charged with depriving a freedman of any civil rights or immunities belonging to white persons to imprisonment or fine, or both, without, however, defining the civil rights and immunities which are thus to be secured to the freedmen by military law. This military jurisdiction also extends to all questions that may arise respecting contracts. The agent, who is thus to exercise the office of a military judge, may be a stranger, entirely ignorant of the laws of the place, and exposed to the errors of judgment to which all men are liable. The exercise of power over which there is no legal supervision, by so vast a number of agents as is contemplated by the bill, must, by the very nature of man, be attended by acts of caprice, injustice, and passion. The trials having their origin under this bill are to take place without the intervention of a jury and without any fixed rules of law or evidence. . . . The punishment will be not what the law declares, but such as a court-martial may think proper; and from these arbitrary tribunals there lies no appeal, no writ of error to any of the courts in which the Constitution of the United States vests exclusively judicial power of the country; while the territory and the class of actions and offences that are made subject to this measure are so extensive, that the bill itself, should it become a law, will have no limitation in point of time, but will form a part of the permanent legislation of the country. I cannot reconcile a system of military jurisdiction of this kind with the words of the Constitution, which declare that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger; and that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State or district wherein the crime shall have been committed.”

The safeguards which the wisdom and experience of ages taught our fathers to establish as securities for the protection of the innocent, the punishment of the guilty, and the equal administration of justice, are to be set aside, and for the sake of a more vigorous interposition in behalf of justice, we are to take the risk of the many acts of injustice that would of necessity follow from an almost countless number of agents established in every parish or county in nearly a third of the States of the Union, over whose decision there is to be no supervision or control by the Federal courts. The power that would be thus placed in the hands of the President, is such as in time of peace certainly ought never to be entrusted to any one man. If it be asked whether the creation of such a tribunal within a State is warranted as a measure of war, the question immediately presents itself, whether we are still engaged in war. . . . The country has entered or is returning to a state of peace and industry, and the rebellion is in fact at an end. The measure, therefore, seems to be as inconsistent with the actual condition of the country as it is at variance with the Constitution of the United States.

If, passing from general considerations, we examine the bill in detail, it is open to weighty objections. In time of war it was eminently proper that we should provide for those who were passing suddenly from a condition of bondage to a state of freedom. But this bill proposes to make the Freedmen’s Bureau, established by the act of 1865 as one of many great and extraordinary military measures to suppress a formidable rebellion, a permanent branch of the public administration, with its powers greatly enlarged. . . . The institution of slavery, for the military destruction of which the Freedmen’s Bureau was called into existence as an auxiliary force, has been already effectually and finally abrogated throughout the whole country by an amendment of the Constitution of the United States, and practically its eradication has received the assent and concurrence of most of those States in which it at any time had existed. I am not, therefore, able to discern in the country anything to justify an apprehension that the powers and agencies of the Freedmen’s Bureau, which were effective for the protection of freedmen and refugees during the actual continuation of hostilities and of African servitude, will now, in a time of peace and after the abolition of slavery, prove inadequate to the same proper ends. . . .

The third section of the bill authorizes a general and unlimited grant of support to the destitute and suffering refugees and freedmen, and their wives and children. Succeeding sections make provision for the rent or purchase of landed estates for freedmen, and for the erection, for their benefit, of suitable asylums and schools, the expenses to be defrayed from the treasury of the whole people. The Congress of the United States has never, heretofore, thought itself competent to establish asylums beyond the limits of the District of Columbia, except for the benefit of our disabled soldiers and sailors. It has never founded schools for any class of our own people, not even for the orphans of those who have fallen in the defense of the Union, but has left the care of their education to the much more competent and efficient control of the States, of communities, of private associations, and of individuals. It has never deemed itself authorized to expend the public money for the rent or purchase of homes for the thousands, not to say millions, of the white race who are honestly toiling from day to day for their subsistence. A system for the support of indigent persons in the United States was never contemplated by the authors of the Constitution. Nor can any good reason be advanced why, as a permanent establishment, it should be founded for one class or color of our people more than for another. Pending the war, many refugees and freedmen received support from the Government, but it was never intended that they should henceforth be fed, clothed, educated, and sheltered by the United States. The idea on which the slaves were assisted to freedom was, that on becoming free they would be a self-sustaining population. Any legislation that shall imply that they are not expected to attain a self-sustaining condition must have a tendency injurious alike to their character and their prosperity. . . .

. . . .

There are still further objections to the bill, on grounds seriously affecting the class of persons to whom it is designed to bring relief. It will tend to keep the mind of the freedman in a state of uncertain expectation and restlessness, while to those among whom he lives it will be a source of constant and vague apprehension. Undoubtedly the freedman should be protected by the civil authorities, especially by the exercise of all the constitutional powers of the courts of the United States and of the States. His condition is not so exposed as may at first be imagined. He is in a portion of the country where his labor cannot well be spared. Competition for his services from planters, from those who are constructing or repairing railroads, or from capitalists in his vicinage, or from other States, will enable him to command almost his own terms. He also possesses a perfect right to change his place of abode, and if, therefore, he does not find in one community or State a mode of life suited to his desires, or proper remuneration for his labor, he can move to another where labor is more esteemed and better rewarded. In truth, however, each State, induced by its own wants and interests, will do what is necessary and proper to retain within its borders all the labor that is needed for the development of its resources. The laws that regulate supply and demand will maintain their force, and the wages of the laborer will be regulated thereby. There is no danger that the great demand for labor will not operate in favor of the laborer. Neither is sufficient consideration given to the ability of the freedmen to protect and take care of themselves. It is no more than justice to them to believe that, as they have received their freedom with moderation and forbearance, so they will distinguish themselves by their industry and thrift, and soon show the world that in a condition of freedom they are self-sustaining and capable of selecting their own employment and their own places of abode; of insisting for themselves on a proper remuneration, and of establishing and maintaining their own asylums and schools. It is earnestly hoped that instead of wasting away, they will, by their own efforts, establish for themselves a condition of respectability and prosperity. It is certain that they can attain to that condition only through their own merits and exertions. In this connection the query presents itself, whether the system proposed by the bill will not, when put into complete operation, practically transfer the entire care, support, and control of four millions of emancipated slaves to agents, overseers, or taskmasters, who, appointed at Washington, are to be located in every county and parish throughout the United States containing freedmen and refugees. Such a system would inevitably tend to such a concentration of power in the Executive as would enable him, if so disposed, to control the action of a numerous class, and to use them for the attainment of his own political ends.

. . . .

I would not interfere with the unquestionable right of Congress to judge, each House for itself, of the elections, returns, and qualifications of its own members. But that authority cannot be construed as including the right to shut out in time of peace any State from representation to which it is entitled by the Constitution. At present all the people of eleven States are excluded, those who were most faithful during war not less than others. The State of Tennessee, for instance, whose authorities engaged in rebellion, was restored to all her constitutional relations to the Union by the patriotism and energy of her injured and betrayed people. Before the war was brought to termination they had placed themselves in relations with the General Government, had established a State government of their own, and, as they were not included in the emancipation proclamation, they, by their own act, had amended their constitution so as to abolish slavery within the limits of their State. I know no reason why the State of Tennessee, for example, should not fully enjoy all her constitutional relations to the United States.

The President of the United States stands towards the country in a somewhat different attitude from that of any member of Congress chosen from a single district or State. The President is chosen by the people of all the States. Eleven States are not, at this time, represented by either branch of Congress. It would seem to be his duty on all proper occasions to present their just claims to Congress. There always will be differences of opinion in the community, and individuals may be guilty of transgressions of the law. But these do not constitute valid objections against the right of a State to representation. I would in no wise interfere with the discretion of Congress with regard to the qualifications of members; but I hold it my duty to recommend to you in the interests of peace, and in the interests of the Union, the admission of every State to its share of public legislation, when, however insubordinate, insurgent, or rebellious its people may have been, it presents itself not only in an attitude of loyalty and harmony, but in the persons of their representatives whose loyalty cannot be doubted under existing constitutional or legal tests. It is plain that an indefinite or permanent exclusion of any part of the country from representation must be attended by a spirit of disquiet and complaint. It is unwise and dangerous to pursue a course of measures which will unite any large section of the country against another section of the country, no matter how much the latter may predominate. The course of immigration, the development of industry and business, and natural causes will raise up at the South men as devoted to Union as those of any other part of the land. But if they are all excluded from Congress, if in a permanent statute they are declared not to be in full constitutional relations to the country, they may think they have cause to become a unit in feelings and sentiments against the Government. Under the political education of the American people, the idea is inherent and ineradicable that the consent of the majority of the whole people is necessary to secure a willing acquiescence in legislation. The bill under consideration refers to certain of the States as though they had not “been fully restored in all their constitutional relations to the United States.” If they have not, let us at once act together to secure that desirable end at the earliest possible moment. It is hardly necessary for me to inform Congress that, in my own judgment, most of the States, so far at least as depends upon their own action, have already been fully restored, and are to be deemed to be entitled to enjoy, but bound, to assume that with the Federal courts restored in the several States, and in the full exercise of their functions, the rights and interests of all classes of the people will, with the aid of the military in cases of resistance to the law, be essentially protected against unconstitutional infringement and violation. Should this expectation unhappily fail, which I do not anticipate, then the Executive is already armed with the powers conferred by the act of March, 1865, establishing the Freedmen’s Bureau; and hereafter, as heretofore, he can employ the land and naval forces of the country to suppress insurrection and to overcome obstructions to the laws.

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1 Excerpt taken from Edward McPherson, The Political History of the United States of America, During the Period of Reconstruction (Washington, D.C.: Philp & Solomons, 1871), 68.

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