He should have afforded greater attention if not respect to these on-the-scene reports from the South. The fact that he did not presented Stanton with another proof of the accuracy of Sickles’s assertion that the President was making moderates into radicals by opposing everything Congress proposed. The Freedmen’s Bureau, its life extended for another two years over another Johnsonian veto, would collapse without the Army to back it up, Sickles wrote, and “with a statesman of reactionary views in the War Department, the rebellion can never be morally eradicated.”
As if to underline the truth of Sickles’s views, in mid-July the governor of Virginia prepared to reactivate the state militia. Grant learned that the militia commissioners were all former rebels and that white Unionists and Negroes were excluded from the lists. He asked Stanton whether he had authorized the militia organization. Stanton assured him that he had not. “I must see the President on this,” he replied to Grant, and then reported that Johnson declined to interfere in what he insisted was a matter of internal state authority.3
Irked at the passage of the amendment and at the War Department’s refusal to conform to his wishes, the President decided to force a showdown in the cabinet. He had Senator Doolittle, one of the leaders of the movement for a new party, request an endorsement of it from each cabinet member. Stanton and the other dissenters would now be forced to declare themselves.
The stratagem brought resignations from Speed, Harlan, and Dennison. Faced with the same option, Stanton made the same decision. On July 16 he wrote a scathing letter to Doolittle, condemning the President’s new party, “consisting mainly of those who carried on the rebellion … and those in the Northern states who sympathized with them.” Stanton professed his already open support of the Fourteenth Amendment in its improved form and his desire to secure the suffrage right for Negroes in the South.4
There it was at last—a forthright endorsement of Congress’s primacy in reconstruction and a clean break with the President. Stanton would now be obliged to resign. And he would have walked out of the cabinet and into the pages of history a hero in the sight of most of his countrymen and a man whose honor showed only minor blemishes.
But Stanton never sent the letter, though Ellen urged him to. For he knew that the Republicans in Congress were preparing a joint resolution declaring Tennessee restored to its proper place in the Union. It was issued on July 18. Though Johnson quibbled at the way Tennesseans had ratified the amendment, and criticized Stanton’s part in the proceedings, he signed the resolution. To all appearances, the moderate Republicans had found a method—ratification of the amendment by the former rebel states—by which their position on reconstruction could be attained without serious obstruction on the part of the President.
And, too, the Maddox case had come to a head. On June 12, Cushing had notified Stanton that his client intended to drop the suit, although he would pursue his claim for the confiscated tobacco. Stanton had been immensely relieved. But, answering Cushing, he struck a brave pose. “This intelligence does not surprise me,” he wrote, “for I never supposed he would bring the case to trial. Whatever may have been his object in bringing on the suit, or abandoning it, will make no difference in any official action of mine.”
Stanton did not know, nor did he ever learn, that Grant had secretly informed Maddox that an army board would favor the claim for the tobacco if he dropped the damage suit against Stanton. But the general’s elation at having headed off similar suits against army officers, and the Secretary’s relief at being rid of the threat of bankruptcy, were brief indeed.
Two weeks after Maddox dropped his suit, William T. Smithson lodged a similar one against Stanton in the Supreme Court of the District of Columbia. In 1863 a military commission had sentenced Smithson to ten years’ imprisonment for disloyal dealings in Confederate money. A year later Lincoln had pardoned the miscreant. Now, in July 1866, Smithson demanded $35,000 damages from Stanton. The nightmare of personal disaster, and of perpetual timidity on the part of the Army’s personnel, had returned.
His friends rallied to him. James Brady had already offered to defend him, without fee, for any of his official acts, and Stanton accepted his aid in the Smithson case rather than test whether or not the President would do as the law required and provide funds for special counsel, as in the Maddox suit, or assign the Attorney General to his defense. Out of regard for Grant’s good will, Johnson did place the new Attorney General, Henry Stanbery, who had served as War Department special counsel in similar cases, at Stanton’s disposal. Brady and Stanbery entered a plea of not guilty to the charges.
Chief Justice Cartter, of the District Supreme Court, was a radical Republican in politics and he and Judge Wylie were close friends of Stanton. They put the Smithson suit further back on the docket, and three years were to pass before it came up for trial.5 The purpose of the delay was plainly to insure that the case was not decided until a Congress was in power that would sustain the indemnity provisions of the Habeas Corpus Act. So Stanton still had an impelling personal reason to remain in office, in addition to his other convictions, and the letter to Doolittle remained unsent.
Johnson’s stubbornness on the Fourteenth Amendment had depressed Stanton terribly. He now was worried that the President, once he had gained Democratic support by the new-party maneuver, might lead a revolutionary movement to use the Army for the purpose of unseating the Republican congressional majority. Confiding his apprehensions to former Governor Morton, of Indiana, who was about to enter the Senate, Stanton advised him that Grant and Pope shared these fears. Morton insisted that Stanton must continue to protect the army personnel who had assumed such titanic responsibilities, and told him that the Republican-Union party would labor “unceasingly to throw the shield of the national protection around you.” Learning from Stanton his decision to stay, Morton leaked the information to trusted mutual friends, and, later, Theodore Tilton remembered how men across the land “felt that the country was safe so long as the key to its arsenals was in Mr. Stanton’s hands.”6
By withholding his reply to Doolittle’s letter, Stanton had still avoided making known his attitude toward the forthcoming Philadelphia convention. This was an omission that Welles proposed to make Stanton rectify at the first opportunity, and his chance came at a cabinet meeting on August 7, when Stanton commented facetiously that the War Department had been asked to furnish bunting to decorate the convention hall. Not having any, he had referred the request to the Navy, said Stanton, with a sidelong smirk at Welles. Neptune responded tartly that he always showed his bunting and it would be well for Stanton to show his. The War Secretary colored, but merely repeated that he had no bunting for the convention.
“Oh,” Welles said disgustedly, “show your flag.”
“You mean the convention?” Stanton asked. “I am against it.”
“I am sorry to hear, but glad to know, your opinion,” Welles said.
“Yes, I am opposed to the convention,” Stanton repeated.
“I didn’t know it,” Welles persisted. “You did not answer the inquiry like the rest of us.”
“No,” said Stanton. “I did not choose to have Doolittle or any other little fellow draw an answer from me.”
That evening Welles asked Johnson whether he had previously known of Stanton’s opposition to the convention. Johnson answered that Stanton had given him no previous intimation of it. Welles commented that the administration could not “get along this way.” “No,” replied Johnson, “it will be pretty difficult.” But he still showed no disposition to ask Stanton to resign.
So Stanton stayed on, and because the President assumed a pose of innocence, the War Secretary, in the view of persons predisposed against him, was easily cast in the role of designing villain. “I see the President has the ‘old man of the sea’ still strapped on his back in the shape of the Secretary of War,” the younger Frank Blair wrote his father.7 But the straps could have been untied at a word from the President.
Meanwhile Con
gress had adjourned on July 27, and three days later a terrible massacre of Negroes occurred at New Orleans. The trouble began when certain so-called Union men proposed to reconvene the constitutional convention of 1864, which had adjourned subject to call, with the idea of having it impose Negro suffrage on the state so that they could dominate it themselves. Former Confederates had gained control of all the important offices in Louisiana except the governorship, which was held by James Madison Wells.
In the absence of Sheridan, General Absalom Baird was in charge of the federal troops in New Orleans. Louisiana’s attorney general, Andrew J. Herron, and Lieutenant Governor Albert Voorhies, both former Confederates, informed him that in their opinion the proposed convention was illegal. If it assembled, the sheriff would arrest the delegates and the grand jury would indict them. Herron and Voorhies trusted that Baird would not intervene. Baird answered that he saw no harm in the projected meeting, for in the opinion of Governor Wells it was legal, and that he would tolerate no interference with it except on orders from Washington. He promised to telegraph for instructions, however, and suggested that Herron and Voorhies also inform Washington of what was happening.
Consequently, the two men warned Johnson by telegram of the high state of excitement in the city, particularly among the Negroes, who were being harangued by agitators. They asserted that it would be impossible to execute civil process against the convention delegates without causing a riot and asked: “Is the military to interfere to prevent process of court?” Johnson answered: “The military will be expected to sustain and not to obstruct or interfere with, the proceedings of the court.” The President, forgetting his states’ rights views, also telegraphed Governor Wells demanding to know by what authority he had reconvened the 1864 convention and by what authority it presumed to act for the people of the state.
Stanton received his first intimation of trouble the same day, when Baird wired him a description of what had transpired in Louisiana and asked for instructions by telegraph. Baird evidently considered the situation crucial. But Stanton neither answered his telegram nor brought it to the President’s attention, and it was not until ten days afterward that Johnson learned about it.8
When Johnson’s telegram stating that the military would be expected to sustain and not obstruct the civil authorities reached New Orleans, Mayor John T. Monroe hastened to show it to Baird, informing him that he proposed to disperse the convention by arresting the delegates unless Baird approved of the meeting. The general was disturbed and puzzled at not receiving any answer from Stanton, and decided to arrest any person who interfered with the delegates, unless he received orders to the contrary.
At noon on July 30, some 26 delegates assembled inside the Mechanic’s Institute. About 150 spectators, mostly colored, gathered in and around the building. Somehow Baird had got the idea that the convention would not meet until 6 p.m. and his troops were still at Jackson Barracks. Everything went off peaceably, however, until a procession of colored men came toward the convention hall. White men began to jeer the marchers. Someone fired a pistol, and, finally, a slaughter of the Negroes by the police and by other whites resulted. Before Baird’s troops succeeded in quelling the violence, about 40 persons were killed and 160 wounded, the victims being mostly Negroes.
On August 3, Stanton divulged what information he had been able to gain about the riot to the President and the members of the cabinet. He prefaced his remarks with a summation of reports he had received from army commanders in the South, who at Grant’s orders had been surveying public opinion there; the conclusion was that the President’s policies were encouraging unregenerate whites to hope for revenge against Unionists and Negroes. Then, repeatedly referring to Herron and Monroe as “pardoned rebels,” Stanton implied that Johnson’s flaccid reconstruction program had given rise to the New Orleans bloodletting.
In a statement to a friend and, almost in the same words, to Congress, Stanton later explained his own alleged remissness in informing Johnson of Baird’s telegram. He wrote: “There was no intimation in the telegram that force or violence was threatened by those opposed to the convention or that it was apprehended by General Baird. Upon consideration, it appeared to me that his warning to the city authorities was all that the case then required, for I saw no reason to instruct him to withdraw protection from the convention sanctioned by the Governor, and in the event of any attempt at arrest, General Baird’s interference would bring up the case with all the facts for such instructions as might be proper, and in the meantime under his general authority, he would take measures to maintain the peace within his command.”
His explanation scarcely seems sufficient, however, in view of the urgency in Baird’s dispatch and his specific request for instructions. Stanton was not so unscrupulously heartless as deliberately to provoke a riot for political advantage by withholding instructions from Baird, but that he had a political objective in mind seems highly probable, especially in view of his earlier delay in answering General Thomas’s request for instructions concerning Tennessee. He was by no means unaware of the explosive situation at New Orleans. Baird’s expressed intention to prevent interference with a Unionist convention, no matter how questionable its auspices, accorded with his own wishes. Stanton knew also that Johnson had no sympathy with the sponsors or the purposes of the convention and that if he was informed of a threatened clash of authority in New Orleans, he would order Baird to support the local authorities. Consequently, he withheld Baird’s telegram from the President, but at the same time, not venturing to cross Johnson openly by endorsing Baird’s resolution to protect the delegates, he simply neglected to answer the general’s telegram.
This silence enabled his enemies to blame the massacre on him. He had wanted trouble to happen, they said, in order to discredit Johnson’s policy. The accusation has never been sustained by proof. To be sure, Stanton had no scruples about discrediting Johnson, and his sympathies were wholly with the Unionists in Louisiana; but he had not intended to encourage bloodshed. Baird was, as Stanton said, already under orders to preserve the peace in New Orleans, and his failure to do so came about through no defect in his instructions. The police were responsible for the massacre, and neither Baird nor Stanton could have anticipated that troops would be needed to prevent local law enforcement officers from reveling in a blood bath.
Johnson, on the other hand, had helped to foment the trouble. When the Louisiana officials informed him of their intention to arrest the delegates unless Baird interfered, he had encouraged them to go ahead, assuring them that the military would be expected to sustain and not hinder them. In making this implied promise, however, he was acting in direct contradiction to the doctrine he had earlier instructed Stanton to lay down for General Thomas—that the duty of the United States forces “is not to interfere in any controversy between the political authorities of the state.” For the supporters of the Louisiana convention not only claimed to represent the people by as good a warrant as their opponents, but also enjoyed the sanction of the duly elected governor of the state.
The President’s worst fault had consisted, however, in ignoring the regular military channels and using a private telegram to local city and state officials as a means of communicating his wishes to a general of the national army. In defending himself privately to Sumner, Stanton made the point that if he had not communicated with Johnson, neither had the President communicated with him. And he implied that whereas his own inaction could have had no part in causing the riot, the President’s failure to advise him of the intentions of the state’s lieutenant governor and attorney general had allowed the situation to get out of hand. In Stanton’s partisan opinion, Johnson was the “author” of the riot.9
Johnson seemed to learn nothing from events. While radical spokesmen were trumpeting exaggerated reports of anarchic Southern conditions based on the New Orleans tragedy, he stolidly went ahead with his plans to proclaim that peace was restored everywhere.
In the cabinet, Stanton frankl
y opposed the issuance of the general peace proclamation, as he had not done, through lack of opportunity, when the President had given the partial pronouncement to this effect in April. But though Welles saw this as evidence that “the Radical [now] stood out distinct and clear at a time when he flattered himself it was disguised,” he misread Stanton’s course. In April, Stanton had not enlisted under the radical banner; by August, he had almost come to that decision.
Johnson issued the proclamation of peace on August 20, and the next day Welles noted that it “takes well with the people.” It did not, however, “take well” with the Army, for once again the commanders in the South were thrown into confusion. Almost immediately after the announcement, in Virginia a Union veteran was beaten severely by two former rebel soldiers, and then the victim was arrested by Norfolk police for disturbing the peace. But the War Department, Holt concluded reluctantly, was powerless to interfere, despite General Orders No. 3 and 44, which had become the main reliance of army officers in the South. Sheridan, who had received Grant’s authority to continue martial law in Louisiana after the riots, wrote to him asking what effects the President’s peace pronouncement would have there. “If civil authorities are to be looked to for justice,” Sheridan asserted, “I fear that the conditions of affairs will become alarming.”10
How alarming may be judged from a report of an army commander in Florida, General J. G. Foster, who wired Grant to learn whether the President’s August proclamation had really been intended to “deprive me of the exercise of command.” Did it restore habeas corpus privileges and establish the precedence of state laws over Congress’s enactments on civil rights? Foster, reporting late in September, complained that on the day after reports of the President’s policy were received in Tallahassee, municipal and county police began to arrest army personnel and Freedmen’s Bureau agents for minor infractions of civil laws. He had ordered this harassment stopped, but he feared another “New Orleans” unless Washington provided clear guidance.
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