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Cushing continued secretly to pressure Maddox to drop his claim, but the Marylander was fearful of the reaction of his backers if he did so. While he struggled to decide upon a course of action, Stanton could do nothing but sit tight. He kept the Maddox matter as quiet as he could in order to avoid worry for his family and his official subordinates. Stanton could not resign now if he wanted to, for except for his salary he was virtually without funds. As War Secretary, he presumably enjoyed the broad indemnity prescribed by the 1863 Habeas Corpus Act for acts performed by government officials in suppressing the rebellion; also the government’s funds were behind him in such suits, and the Attorney General himself would defend him if asked.
Stanton knew that if Maddox won, the Army would become paralyzed as an effective force in the South, for similar suits would multiply against many officers. On merely hearing of the suit, army personnel were losing confidence regarding their legitimate powers. A great deal more than his own pocket was involved, and Stanton was determined to fight.
It may have been that the President wanted Maddox to win. This was the opinion of Washington commentators who kept their ears close to the ground around the White House. Logic supports the surmise. If Maddox succeeded, then Johnson need not issue an order he was preparing, limiting the Army’s powers in the South. A victory for Maddox might transform the influential War Secretary into a bankrupted, subservient instrument of the President’s will, and bypass the political repercussions that must attend a request from Johnson that Stanton resign, which the President’s intimates were pressing him to make. All this gained without risk to himself, Johnson might yet bridge on his own terms the gap opening between the White House and the congressional leaders of the Republican party. For without the Army’s willingness to enforce legislation protecting the rights of Negroes, further argument on that sore subject became meaningless. Not for the last time, Johnson hoped to win a political victory in the courts.
These potentialities forced Stanton and Grant to turn for help to the dominant Republican element in Congress. Because Ben Butler had evidence in his possession vital to the government’s side, Pierrepont made peace with him on behalf of Stanton. Generals Grant and Fry, James Wilson, of Iowa, chairman of the House Judiciary Committee, and Henry Wilson, of Massachusetts, chairman of the Senate Military Affairs Committee, worked closely with Stanton, and a resolution calling for better protection for government officials emerged from the Senate early in February. “Stanton knows that a Radical Senate will sustain him,” noted Democratic diarist William Owner.5
While waiting for Congress to act on his and the Army’s behalf, Stanton, together with Grant, Fry, and Holt, had taken more immediate administrative action to deal with similar suits emanating from the South. On January 3, 1866, Grant issued to the Army General Order No. 3, “To protect loyal persons against improper civil suits and penalties in the late rebellious States.”
By the terms of this order, present military and civil officers of the national government, as well as holders of confiscated property, occupants of abandoned lands, and Negroes who asserted that the civil courts of the South offered them no fair redress, were to have any suits against them transferred to federal courts or to the tribunals of the Freedmen’s Bureau. This general order reflected Stanton and Grant’s desire to protect the Army, not to push the Army toward supporting Republican political tenets. The order had the latter effect, of course, but this was neither Stanton’s fault nor his intent.
But General Order No. 3 applied only to the South and to present government personnel. In addition to the Maddox case, more than fifty suits against the wartime actions of former army officers were then pending in the state courts of Vermont, Indiana, and Kentucky, as well as in New York. Stanton and Grant requested the Attorney General to defend the officers and the veterans involved, and the War Department paid the expenses of each defense. This policy served from January through early May 1866 as an interim buffer designed to give confidence to the Army’s officers that the government would sustain them. Then, on May 11, Congress amended the 1863 Habeas Corpus Act, providing for federal court jurisdiction in suits against soldiers and for the aid of the government’s legal department to all current and former public officers for acts done under orders during and since the war. The immediate crisis was past.6 But no one could say what might yet happen if Maddox won his case, if other courts took the government to task for exercising emergency powers during or since the war, or if the Supreme Court declared the Habeas Corpus Act and its amendment void.
Meanwhile Southerners continued their protests to the President against trials of civilians by military tribunals and Freedmen’s Bureau courts. Stanton, at Grant’s behest, had insisted in cabinet that the creation by the President of provisional civil governments in the conquered Confederacy did not end the Army’s right to employ martial law there, and General Order No. 3 assumed this right. On April 2, 1866, however, Johnson proclaimed that the rebellion was everywhere ended and that the Southern states were now back in the Union.
Almost simultaneously, the Supreme Court issued a preliminary verdict concerning the wartime arrest of Lambdin P. Milligan, a subversive Indianan. The jurists ordered him and his accomplices freed from military custody, and promised that at the next term of court, in December, they would issue a more detailed opinion on the broader constitutional issues involved in the question of the exercise of martial law in noncombat areas. That forthcoming opinion would undoubtedly place another checkrein on army authority, and in anticipation, Johnson ordered a halt to military trials of civilians in the South.
By implication, the President’s April proclamation on the South and the Court’s predictable judgment on the exercise of martial law in the North, cast into confusion Congress’s legislation on civil rights and the Freedmen’s Bureau, as well as the War Department’s regulations concerning the military occupation of the South. Army commanders pleaded for guidance. But neither Stanton nor Grant was yet able to provide it.
Stanton could not contain his disgust at the President’s April peace proclamation. It was, he said to a friend, additional evidence of the politicians’ willingness to sacrifice the best interests of the Army, and only if Johnson could resurrect the 300,000 Union dead would the nation accept the proclamation. His temper soon cooled, however, and on May 1 the War Department issued General Order No. 26, which, because “some military commanders are embarrassed by doubts,” prescribed that in the South military trials were to give way to civilian state tribunals, where the latter existed. It seemed like utter triumph for Johnson’s position.
But on April 9, three weeks earlier, Grant and Stanton had issued a secret circular of instructions to military commanders in the South which placed the Army there in the middle position of complying with the President’s proclamation while retaining in reserve the martial authority which Congress had vested in it in the Habeas Corpus, Freedmen’s Bureau, and Civil Rights acts. The confidential circular informed army commanders that Johnson’s policy “does not remove martial law [but] it is not expedient … to resort to military tribunals where justice can be attained through the medium of civil authority.” Each officer was, however, to retain the discretionary responsibility to determine the adequacy of justice attainable in Southern civil courts in each case, and Stanton—for the style of the message is his—also reminded army commanders of the existence of the Freedmen’s Bureau courts and of the Civil Rights Act. Military personnel, and Negroes who claimed that they could not receive fair treatment in civil courts, would keep the mantle of the military tribunals around them; indeed, Sheridan and Holt agreed that General Order No. 3 not only was still in force but extended to veterans now living in the South.
Therefore, however it encouraged Southern whites and Northern Democrats, the effect of Johnson’s April proclamation and his order concerning military trials was to force the Army a further step away from its traditional reliance on executive support and into further dependence upon legislative backing. T
he President’s Southern policies were adding to Congress’s strength, although Johnson thought himself a champion of executive power. Grant and Stanton and most military officers were moving with the Army into an unplanned and informal accord with Congress in order to keep down the harassments of the President’s Southern supporters. To the men running the War Department, these were actions of self-defense, not attack.7
Though the Army was inexorably being drawn into the struggle developing between the President and Congress, there is every reason to believe that Stanton was not committed to radical politics. For example, when a group of Alabamans petitioned him to transfer a detachment of Negro troops away from their community, he gracefully obliged and received their thanks. Horace White, the Chicago Tribune publicist, was confident that Stanton was still in essential harmony with Johnson in mid-March, and pleaded with him to try to persuade the President to follow a different path. Radical leaders such as Butler knew that Stanton was by no means their man.8
Events, however, kept pushing Stanton further into open sympathy with Congress. On April 30, the Joint Committee on Reconstruction introduced a proposed Fourteenth Amendment to the Constitution, comprising five sections. The first was designed to prevent racial discrimination by states and permanently to nullify the “Black Codes.” In framing section two, the committee had acceded to Johnson’s contention that suffrage was a matter for the states to decide. It did not impose Negro voting on the South. But the war, by ending slavery, had also increased the South’s representation in the lower house, almost as a reward for rebelling, by making obsolete the three-fifths clause in the Constitution. And so the plan of the committee provided that when a state denied the vote to any of its male citizens, except for participation in rebellion or other crime, its representation in Congress should be proportionately decreased.
Section three declared that all persons who had voluntarily aided the rebellion should be excluded, for approximately four years, from voting for representatives in Congress or for electors for President and Vice-President. Sections four and five repudiated all debts incurred in aid of the rebellion and claims to compensation for loss of slaves, and afforded Congress powers of enforcement through appropriate legislation.
The amendment was not a product of radical vindictiveness; Stevens protested that it did not go nearly far enough. The cool and cautious Fessenden had taken a leading part in framing it, and he admitted that the third section of the proposed amendment was the weakest of all; it was “worse than useless, & was adopted against my judgment,” he wrote. “Probably it may be stricken out & something better inserted in its place.”
Whatever its weakness, the amendment proposal was the outcome of numerous compromises among the Republican committee members. It represented the moderate view. If Johnson accepted it, peace might still prevail between him and Congress.9
On May 1, while the proposed amendment was still pending in the House, Johnson brought it before the cabinet. On a poll of the members, Stanton, after seeming to avoid a commitment, said he could not approve it in its present form and believed some modifications would be worth attempting if the President might thereby be induced to approve it and thus come to agreement with Congress.
Welles denounced the congressional plan as an outrage and a wrong. Stanton interrupted to complain that Welles opposed all efforts to get along with Congress, and was “ironclad” on reconstruction and had not only leveled his fifteen-inch guns on Congress but proposed to ram them with his prow. Welles denied being unreasonable. The Constitution prescribed the terms on which states should be represented, said he, and Congress had no constitutional authority to impose additional conditions. Neptune was confused here. Congress was proposing to amend the Constitution, an action it had full power to initiate.
When Stanton unfolded his newspaper the next morning, he was astounded to see a full report of what had supposedly been a private meeting of the cabinet spread out in cold print. Though the news report allegedly came from “a Cabinet member,” it turned out that Johnson had given it to his friends with the Associated Press, and it exaggerated Stanton’s disapprobation of the reconstruction committee’s proposal, while neglecting to mention his expressed belief that Congress and the President were “not so far apart that they could not come together.” But the pro-Johnson press, which had been demanding Stanton’s resignation, now seized on the distortion to claim the War Secretary as the President’s staunch ally, and it pleased “Old Gideon” that Stanton must “content himself with the exposition made or openly deny it.”
Stanton did not want to be put in this position. He tried to let the tempest pass, saying nothing publicly in rebuttal, and taking a long weekend trip to “get a little relaxation and mountain air” in company with Senator Morgan and Congressman Hooper.
Meanwhile, however, the President let it be known that he wanted each cabinet officer to state his position publicly. To force the War Secretary to a public choice, the National Union Club of Washington, composed largely of pro-Johnson officeholders, planned to serenade the President and the members of his cabinet on May 17, but Stanton absented himself, offering no reason. On the twenty-third, however, the tactic of the Johnson supporters was successful. A warm night and the Marine Band brought out a crowd of about 1,500, which, after listening to brief remarks from Johnson at the White House, moved on to the house of each cabinet officer in turn. Welles, McCulloch, and Dennison, the only other members who were at home, made short, extemporaneous speeches; but it was Stanton whom the paraders really wanted to hear, and the War Secretary, knowing that he would be facing a potentially hostile audience, had written out his remarks.10 Appearing at his doorstep and bowing politely in response to the shouts of the paraders, he read his address, a man on either side of him holding a lighted candle, while stenographers, employed by newspaper correspondents, took down each word.
What he said in substance was that in its early stages Johnson’s plan of reconstruction had, in addition to restricting “the exercise of the organizing power” to the people who were “loyal to the United States and no others,” also required certain guarantees from the Southern states as “evidence of sincerity in the future maintenance of the Union.” And this plan had “received the cordial support of every member of the Cabinet.” To be sure, some members had thought it advisable to secure the right of suffrage in some form to the colored inhabitants of those states, and he himself had inclined to that view; “but after calm and full discussion, my judgment yielded to the adverse arguments resting upon the practical difficulties to be encountered in such a measure, and to the President’s conviction that to prescribe the rule of suffrage was not within the limited scope of his power.”
Likewise, declared Stanton, what Johnson had said in his message of December 1865 in recognition of the right of the houses of Congress to judge the qualifications of their members, had received then and continued to receive his hearty support. He had welcomed the President’s further assertion that “good faith required the security of the freedmen in their liberty and property, their right to labor, and the right to claim the just return of their labor,” and had deemed the Freedmen’s Bureau bill an honest effort on the part of Congress to meet the President’s wishes in that matter, and had advised him to approve it. The President had not chosen to do so, however, and consequently it was no longer “the subject of debate or differences of opinion”; and the civil rights bill, having been passed over Johnson’s veto, had likewise ceased to be a subject for argument.
That brought Stanton to the proposed amendment, and he could not give his assent to it, he said, because of the disfranchising provisions of the third section. Here Stanton echoed Fessenden’s moderate view. In Stanton’s judgment, “every proper incitement to union should be fostered and cherished, and for Congress to limit its own power by constitutional amendment for four years might be deplorable in its results.” He made it clear that in his opinion the legislative body had an unquestionable right to participate in the rec
onstruction process. And this, in the state of affairs at the moment, was the crux of the reconstruction controversy. His speech ended, Stanton awaited the reaction; extremists on both sides were sure to be unsatisfied.
Some newspapers favorable to Johnson tried to make it appear that Stanton had unreservedly seconded the President’s course.11 But Stanton had not endorsed Johnson’s position. Besides explaining his own course of action with respect to the President’s reconstruction program, and objecting as had several moderate Republican congressmen to one phase of the congressional plan, he had thrust into prominence certain acts and statements of Johnson’s that tended to endorse the congressional program, in order to show that a reconciliation might still be possible. Now, however, his remarks were being twisted in order to align him with Johnson, and this, added to Johnson’s deliberately distorted report to the press of what he had said in cabinet meeting, roused his anger against the President and led him to reassure his friends as to where he stood.
On May 28, Republican Congressman Samuel Shellabarger, of Ohio, wrote confidentially: “Secty Stanton called me into his private room a day or so ago to talk of reconstruction. He is heart & soul with us and I write this note that our friends in Ohio may know it as I see the Johnson people still claim that serenade speech to be [for] Johnson. As he said to me it is [for] Johnson but it is the Johnson we nominated and elected not that apostate who is now in sympathy with the traitors.
“He loathes the present Johnson movement as much as you do and if there is any ambiguity in his position it is owing to the fact that good men demand him to stay in the Cabinet.…”12
If there was any ambiguity in Stanton’s position, the President was not deceived; nor had Stanton sought to deceive him. Since the cabinet meeting of May 1, Johnson knew clearly that Stanton’s position was with Congress but not necessarily against the President. Johnson could not have failed to read the serenade speech as anything but a repetition of Stanton’s insistence on compromise, strengthened by a shrewd highlighting of some of Johnson’s words and deeds which had seemed to go toward that middle way. As the Milwaukee Sentinel aptly noted on May 26, and as he had stated to Shellabarger, Stanton had indeed endorsed the President, but it was the Johnson of the previous year he supported. Why, then, did not the President, aware of his hostility and able to demand his resignation at any time, insist that he resign now?