If these were improbable imaginings, Stanton was far from being the only one to dream them. What is more important, he proceeded in his characteristic manner to prevent them from becoming real. In his mind, the partisan advantages that might come from allying the Army with the Republican majority in Congress were inextricably mixed with patriotism and with his loyalty to the military arm.
Co-operation with friendly legislators had always paid dividends for Stanton and for the Union. By war’s end Stanton was convinced that there should be permanent institutional channels connecting the cabinet with Capitol Hill, providing efficiency and harmony instead of the clumsy, discordant traditional practice. During 1865 he was busy with other things, but in early 1866 he and Speaker of the House Colfax agreed to provide each other with advance information on executive requests and legislative enactments concerning the Army. Inevitably, their accord was strengthened by the growing strains over reconstruction. Stanton followed this pathway when he sought a means of evading the impending Court decision on Milligan.8
As congressmen converged on Washington to attend the opening of the new legislative session in December, Stanton advised Colfax and George S. Boutwell, of Massachusetts, of his fears and of a solution he had worked out. His plan required Congress to make the commanding general the funnel through which Johnson must send all orders to army officers, and to specify that the President must not move Grant from Washington without its consent. Last, the President had to disband the militias of the Southern states. The congressmen agreed, and Stanton excitedly interrupted Grant at one of the general’s crowded receptions to tell him about it. Doubtless with Grant’s approval, an army appropriations bill bearing the Stanton riders went smoothly through Congress, and Johnson later had to sign it in order to keep the government functioning.9
Stanton was satisfied that he had built a safe temporary barrier for the Army and given Johnson a dig for having bypassed him during the New Orleans tragedy. He did not realize that he had set the basic pattern for Congress’s forthcoming onslaught on Johnson—the isolation of the President from control of vital segments of the administration, especially the Army. With Grant’s safety assured, Stanton felt that he could join Ellen in New York City. There were some questions he wanted to ask his friend Pierrepont.
Between the social gatherings that Pierrepont arranged in his honor, Stanton and he talked over the implications of the Milligan matter. They agreed that ample precedent existed for disregarding or overturning a Supreme Court decision; Lincoln had felt the same way about the Dred Scott case. The two men again touched on the possibility of Stanton’s resigning and joining Pierrepont in a law partnership in New York, which was what Ellen still wanted her husband to do. Then she again fell ill. They cut the visit short, and left the city convinced that the elite of society, business, and politics supported him. Stopping overnight at Philadelphia, Stanton had General Meade, who was in command there, secure them tickets for the theater so that they might become acquainted with the work of the actress Adelaide Ristori, their children’s idol.
Ellen was still far from well when they returned home. During the height of the Washington social season, Stanton escorted his niece to the President’s brilliant New Year’s Day reception. Later that day, Stanton opened his home to visitors, as was customary for cabinet officers, and hundreds of military, naval, and diplomatic officials came to exchange greetings. Two weeks later, Ellen had recovered enough to join Stanton at the first state dinner of the year at the White House. But in the main she returned to the virtual retirement from society which had characterized her life during the past three years. She could take satisfaction, however, in her contribution to her husband’s political strength and personal confidence, for Pierrepont’s support was significant not only in political terms but because Stanton saw in his friend’s agreement a needed sign that he was on the right path.10
The Stantons had barely returned to Washington when the Supreme Court announced its opinion in Milligan’s case. It realized Stanton’s worst fears. Although disagreeing on some points, the jurists unanimously concluded that martial law was unwarranted where civil courts functioned. Though the case at hand dealt with wartime Indiana, its implications now supported the President, the Democrats, and the former rebels of the South. It cast into deepest doubt the legitimacy of the Army’s actions in the South during the preceding year and a half. Most fatefully, the decision encouraged the extremists of the South and of the Democratic party to jubilant expressions of victory, and spurred radical Republicans into more determined efforts to come to a final clash. Congress, under radical control, now had to surrender or else move ahead by ignoring, circumventing, or overcoming the Court as well as the President.
Then the Court threw additional “important stumbling blocks in the course of congress,” as Jeremiah Black exultantly described it. In two 5-to-4 decisions, a majority of the jurists condemned the loyalty oath tests with which Republicans were building permanent political machines in the border states and which they hoped to continue using to bar former rebels from voting and holding state and federal offices. Cummings v. Missouri involved a priest-teacher of that state who refused to swear to a required test oath as a prerequisite for teaching. The Blair family had helped him take the case to the Supreme Court in the hope that a verdict condemning the oath, which faced Missouri’s officeholders and voters as well, would crack the Republican strangle hold on political power there. Ex parte Garland concerned an Arkansan who had practiced before the federal Supreme Court before the war, served as a rebel officer and legislator after secession, then received a presidential pardon and asked to resume his prewar profession. Congress had required that its “ironclad test oath” be sworn to by all attorneys seeking to practice in the federal courts as well as by judges and jurors. Garland insisted that the executive pardon he held from Johnson exempted him from the congressional oath requirement, as well as from all other penalties for his treason and rebellion.
In these cases, the Supreme Court seemingly took a firm stand in defense of civil liberties. Taken together, the Milligan, Cummings, and Garland decisions are noble assertions of the limitations on the government, brave condemnations of unbridled martial power, and intelligent criticisms of corrupting test oaths—in the abstract. To Stanton, to most Republicans, and to the United States Army, however, they meant that former rebels, waving the certificates of pardon which Johnson had issued so freely, would now flood the federal and state courts, to become attorneys, jurymen, and court officers, and perhaps gain federal employment as judges and even army commissions. The Army’s efforts would not only be nullified; its personnel, facing judges and jurymen who were former rebels, must surely collapse under damage suits. The potential effect of these decisions would be to nullify the congressional achievements and the Army’s regulations of 1866, if Congress permitted them to.
Stanton saw the Court’s verdicts as tragedy. Along with most moderate Republicans, he was cast into despair at these prospects. Almost as soon as the decisions were known in the South, army commanders reported to him that civilian authorities were more than ever contemptuous of national authority, outspoken in their laments for the lost cause, and brazen in their assaults on soldiers, Yankee veterans now living in the South, white Unionists, and Negroes. The army officers did not know how to protect these people or themselves.
As things stood, the Army was in a hopeless situation. Presidential orders had placed the soldiers on occupation duty, then weakened their power to punish civilians who broke national laws but escaped prosecution in the state courts. Now the Supreme Court had knocked out all the props. The Army must either cease trying to function as an occupation force or get a new lease of power. Army officers could not long continue in the limbo into which the Milligan verdict cast them. According to the Army and Navy Journal, one of “the fruits of the Milligan Case” was the fear felt by all officers who had sat on military commissions in the North since 1861 or in the South since 1865 that they would now be
sued for damages by persons they had convicted of offenses. Some such suits were already lodged in Southern state courts, and, the Journal editorialized, “officers will be exposed to endless worry and expense.” Military personnel needed assurance that they would not suffer from doing their duty; otherwise, they would not perform it. Congress must “vindicate the National authority,” and protect its military servants from vindictive harassment from civilians who had recently been rebels in arms against the nation.11
In his testimony to a congressional committee late in January, Stanton asserted that the Supreme Court had rendered the Army powerless to punish the murderers of Union soldiers in the South. State authorities there were demanding that the Army release all civilian prisoners from its custody. To prevent jurisdictional collisions between national and state powers, Stanton ordered the disputed prisoners transferred to Fort McHenry, but a writ of habeas corpus from a federal judge had secured their release.
He saw no remedy but to reinstitute martial law and military commissions in the South. Milligan had been properly convicted, and so had the civilian prisoners still in custody. Soldiers and Negroes could not secure justice in Southern courts unless the test oath shield was replaced. The Supreme Court’s views were unsound and need not bind Congress, he asserted.12
But Congress had not yet proved itself capable of protecting the Army. Stanton did not know which end of Pennsylvania Avenue now held the solution to the soldiers’ dilemma. He had to wait for events to unfold. So long as he held on to the war office he could try to mitigate the worst effects of executive and judicial policies he could not control. For example, he secured for army officers the assistance of federal attorneys in the rash of damage suits that now sprang up. Confused, hesitant, impatient for matters to settle down so that he could resign, Stanton again decided to hang on until the Army was assured of a better fate than serving as a pawn in a contest for power.
Buoyed up by the judicial decisions, Johnson commenced the new year in a confident mood. Seeking to capitalize on the effects of the Court’s pronouncement, he wanted to force Stanton out of the cabinet. Therefore, at a cabinet meeting on January 4, with Grant present at the President’s invitation, he asked the Secretary’s opinion on a bill giving the vote to Negroes in the District of Columbia and disfranchising former rebels there by means of a test oath. Stanton supported the bill. Congress, after all, had plenary powers to set suffrage standards in the federal district. Negro suffrage had to be tried, Stanton stated, and it might as well begin in the District as anywhere else. All the other cabinet officers supported Johnson’s determination to veto the bill.
Johnson’s plan for the January 4 cabinet meeting to force Stanton out of the cabinet, and impress Grant with the harmony of opinion among the other cabinet members, failed. Grant saw nothing wrong in Negro voting or in disfranchising disloyal persons by means of loyalty oaths or otherwise. But still determined to avoid open commitment, he had contributed little to the cabinet discussion, saving for his private correspondence a description of the disgust he felt at the efforts being made to push him into one partisan corner or the other. “But to leave now would look like throwing up a command in the face of the enemy,” he wrote Sherman. Stanton also would not quit under fire, but, unlike Grant, he could not afford the luxury of silence.13
The President, to keep pressure on Stanton until he resigned, brought up the futile plan to counter the Fourteenth Amendment proposal with the one from the South. On January 8 Stanton spoke out. He hoped only that it meant that Southerners were ready to drop their damage suits against army personnel. Johnson then sprang what he thought was a trap, hoping that Stanton would fall into it. He asked for opinions on Thaddeus Stevens’s heavily publicized plan to throw the South into a territorial status.
Attention fixed on Stanton. He did not hesitate, but interrupted Browning, who had started to speak out of turn, and demanded his proper priority. Stanton said that he had supported and administered both Lincoln’s and Johnson’s policies in the South, though he had felt free to criticize openly what he felt were errors in the ways in which they worked out. He had not seen Stevens’s proposition, he said, “and did not care to, for it was one of those schemes which would end in noise and smoke.”
For once, accord reigned in Johnson’s official family. Perhaps there was still a chance, the President believed, that Stanton might be regained for his own side, further buttressing the strength apparently building at the White House since the Court had spoken out.
But all Stanton had done was to express a frank opinion, as was his habit. When he appeared two days later before the House committee inquiring into the arrest of John Surratt, he assured the chairman, his friend Boutwell, that Johnson and the other cabinet officers had in no way obstructed the prosecution.
His frankness was again apparent eight days later. Congress proposed admitting Colorado and Nebraska as states on the condition that they include in their constitutions a clause providing for universal male suffrage. Johnson was outraged at Congress’s daring to set fundamental conditions, but Stanton saw no reason why the legislature should not require what it wished. In any case, it was a question of law. He did not feel that Johnson should veto the bills merely because of his lack of sympathy.
Riding home with Welles that day, Stanton said that he was sick of the constant wrangling and wished that “this matter of the vetoes might be over.” For the moment, Welles, like Johnson, felt that Stanton was reclaimable, and was not a radical spy, but honestly occupied a position on important questions that differed from the President’s.14
This was true. But Welles and the President misread Stanton’s habitual frankness as a plea for forgiveness. Stanton had merely been continuing his attempts to bring Johnson to a reasonable course of cooperation with Congress. The President, however, joyous at the Supreme Court’s decisions, overestimated the strength the jurists added to his position. He was in no mood for co-operation.
Neither were the Republicans. In the first week of the new year, Congressman Ashley introduced in the House a resolution to inquire into Johnson’s conduct as a preliminary to impeachment for alleged usurpations of power. John Sherman started a reconstruction bill through Congress which provided for precisely what the Court had condemned. Most Republicans, indeed most Northerners, were less interested in inflating the civil liberties of former rebels than they were concerned over justice to soldiers, Unionists, and Negroes.
Stanton openly supported Sherman’s proposals. He asserted that the Court’s decisions had been the final straw that pushed him completely over to the side of Congress. But he was not, he insisted, in sympathy with the radicals. He joined with John Sherman, Bingham, and Fessenden, all moderates, and with Grant, in keeping extreme reconstruction proposals in check.15 Bingham, especially, was responsible for the provision that the President would retain executive responsibility in the reconstruction bill that finally emerged.
In Montgomery Blair’s warped analysis, the purpose of the congressional debate was only to throw dust in Johnson’s eyes “by having Bingham … pretending to make war on Stephens [sic].” Stanton, according to Blair, was “carrying water on both shoulders but nobody but the President seems to be his dupe.”
Johnson was nobody’s dupe, and certainly Stanton at no point concealed his position. The President meanwhile brought Jeremiah Black to the cabinet room to help work out veto messages and asked Frank Blair, Jr., to draw up a new cabinet slate. But Congress was now moving at high speed.
While the debate on the reconstruction bill continued, Congress on January 22 took control of its sessions out of Johnson’s hands by resolving to meet again immediately at the close of the current session in March, rather than in December. On February 8, the legislators enumerated the eleven states of the former Confederacy and excluded their electoral votes.
At this juncture all seemed to want to stop for a breath, as though suddenly fearful of the unknown hazards that might be encountered if they continued on the trackles
s path they were treading. Johnson tried to build bridges to the hesitant, conservative Republicans. “The fact is Andy is ‘wooling’ some of our naturally ’Democratic’ friends,” California’s Republican Senator Cole wrote in mid-February. “He is making progress; more progress than Congress.” These maneuverings convinced some onlookers that Johnson was pausing rather than suffer himself to be impeached.16
One evening during these uncertain maneuverings, John Hay met Sumner, and the Massachusetts senator derided critics of Stanton who demanded that he leave the cabinet so that harmony might reign there, and insisted that “it was often the duty of a patriotic Minister to remain in the counsels of a perverted administration as a ‘privileged spy.’ ” He felt that Congress must make it impossible for Johnson to remove Stanton. This, of course, was Sumner’s point of view, and there is nothing to indicate that Stanton shared it at this time. He was his own agent, not that of Congress. He was a partner to the legislative leaders only when he felt it necessary to curb Johnson’s activities.
Mostly he attended to his departmental and personal business. Worried about the health of General Meigs, who was grieving over a son killed by rebel guerrillas in the war, Stanton sent him on a tour of Europe to compare supply procedures of foreign armies. Meigs was the bitterest foe of Johnson’s policies in the Army. He refused even to correspond with pardoned former rebels concerning army contracts, much less grant any to them. Stanton sent him off nevertheless. The Secretary had to appear more than a dozen times in February before various congressional committees, and the testimony he gave was restrained and careful. He and Ellen gave several dinners and receptions, and their guests included persons of all shades of political opinion.17 But despite the surface appearance of harmony, his official position was now disagreeable in the extreme. Stanton knew that no matter what he did, Johnson and the President’s supporters in the cabinet would see no good in it.
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