Stanton

by Benjamin P. Thomas

  Mississippi officials, encouraged by Black, had alleged that the reconstruction acts were unconstitutional, and had petitioned the Supreme Court for an injunction forbidding the President to enforce them. Republicans steeled themselves for the worst. “I imagine that at no time in our history have there been so many ears pricked in all parts of our country for a coming decision of a tribunal,” Lieber commented to Sumner.

  When the cabinet assembled on April 5, Stanton joined in the unanimous opinion that the President was not subject to the Court’s jurisdiction. But he was the only one to recommend that Johnson keep out of the affair and wait to learn how the jurists treated the petition. Stanbery argued that the President should be represented in the case as amicus curiae, which Johnson agreed to, and then Stanton merely stated that he would defer to the common judgment.3

  Stanton wanted to keep Johnson aloof from the Mississippi matter in order that the President might avoid antagonizing the Republican leaders in Congress. The irritations of the Milligan and test oath decisions were still raw in Republican minds. The Attorney General’s appearance in court would be enough to convince suspicious Republicans that the President was conspiring with the untrustworthy jurists to wreck Congress’s laws. This might precipitate the crisis that Stanton was trying to fend off.

  As things worked out, the jurists, more sensitive than the President to the legislators’ wrath, later refused even to entertain the Mississippi petition, as well as a similar one from Georgia directed against Stanton and Grant, much less to pronounce that the reconstruction laws were invalid. Johnson would have been wiser to accept Stanton’s advice, which was based on firm precedents, and to keep the White House out of the picture.4

  Stanton and Grant feared most that the President, through Stanbery, would manage to water down Congress’s reconstruction laws by means of narrow interpretations. Writing to Washburne, Grant predicted that “all will be well if Administration and Copperhead influences do not defeat the objects of the [reconstruction] measure,” and asserted that Sheridan and the other district commanders were “carrying out the measures of Congress according to the spirit of their acts.” Grant advised Sheridan to go on as he had been, interpreting the reconstruction legislation as he thought best. Whatever Stanbery decided, Grant suggested, it was up to the generals in the South to make up their own minds.5

  The question of how far the President might direct the army commanders in the South kept crisis always in the offing. Stanton could only delay it; he could not keep it from occurring. He knew that when the chips were down he would have to follow the line that Grant was drawing.

  Stanton’s attention snapped away from politics in mid-April. A telegram announced that his mother was dangerously ill. He sped to Gambier on a special train. Mrs. Stanton was much improved when he arrived, but he fell ill in turn. However, he rested only three days in Gambier, for there was news of more trouble in the South. He returned to Washington on April 20, suffering as never before from asthma and in desperate need of quiet and rest. He found turbulence and strain instead.6

  Sheridan in Louisiana and Pope in Georgia had informed Grant that they were planning to remove more Johnson appointees from civil offices in those states. Grant encouraged the generals by restating to them his position regarding their independence from executive oversight, and assured them of his and Stanton’s support. He advised them, however, to suspend state officers rather than remove them, in deference to the attitude Stanbery would obviously take, and to have them tried immediately by military courts, which deferred neither to presidential opinions nor to the Supreme Court’s Milligan decision. In the same vein, he suggested to Sheridan that the test oath provision of the second reconstruction act was a proper mode for the “disfranchisement of a class of citizens that ought always to be disfranchised,” although the Court had condemned such oaths. And he comforted Sheridan, writing: “I think your head is safe above your shoulders at least so that it can not be taken off to produce pain.”7

  Stanton attended every cabinet meeting in spite of his increasing illness. Determined to avoid a clash with the President, he kept quiet. His silence only infuriated Johnson, who decided to bring matters to a head. Without asking for opinions from Stanton or Grant, the President ordered Sheridan to suspend an order limiting voting to a fifteen-day period, in order to keep balloting going until Stanbery’s forthcoming opinion opened a door through which white Southerners might perjuriously make their way to the polls. Still Stanton said nothing. Desperately trying to keep the peace, he obeyed each order from the President. Grant, he knew, would see to the execution of the substance of the reconstruction laws.

  Similarly, though crudely goaded by Johnson, Stanton avoided commenting when the President released Jefferson Davis from military custody so that the rebel leader might face a civil trial. Again, when the mystery of certain missing pages from the Booth diary hit the headlines, and Johnson leaped to the conclusion that Stanton had hidden the torn leaves in order to conceal his guilt in the railroading of Mrs. Surratt to the gallows, Stanton forbore from fighting back either at cabinet meetings or in newspaper columns.

  To be sure, Stanton knew that he would quickly have his chance. His friend on the House Judiciary Committee, Henry Wilson, arranged to have Stanton give testimony on the Booth papers soon after the headlines had appeared. But these were side shows in relation to Stanton’s major concern, the issue of the powers of army commanders in the South.

  Then, in the second week of May, General Ord, commanding in Arkansas and Mississippi, threatened to disperse the “Johnson” legislatures of both states.8 Inspired to hurry by the news of Ord’s contemplated action, Stanbery on May 14 presented the cabinet with a first installment of his opinion on the reconstruction laws. No one was surprised to learn that it limited the powers of the district commanders, or that Stanbery would open the polls in the South to former rebels barred by Congress’s laws. Stanton, however, was readying his lawyer’s skill to match the best that the Attorney General could offer.

  A week later, Stanbery offered a second chapter of his opinion. Stanton, tenacious and in deadly earnest, insisting that interpretation was out of their hands, countered him on point after point. Then, on May 23, after hearing the third part of the serial draft, Stanton made a desperate bid for compromise.

  “I dissent from the whole opinion,” he informed the President and his cabinet colleagues. Expanding on the reasons for his disagreement, Stanton followed the main line of his and Grant’s interpretation of the President’s insignificant functions under the reconstruction laws. Then he departed from the position he and Grant had agreed on. On his own initiative, he agreed with Stanbery that minor country and municipal officials in the South were subject to the relatively mild disfranchising standard of the Fourteenth Amendment, which he had helped to write, rather than to the far more inclusive pattern set in the reconstruction laws. Further, registering officers must accept the proffered loyalty oath of a would-be voter, even though they felt it was perjured. In short, Stanton was asking the President to accept the moderate Republican view that only the few thousand Southerners who had held state or federal offices before the war and then joined in rebellion, should be excluded from participating in reconstruction. He was prepared to reject the radical demand, symbolized by the test oath, that everyone in the South who in any way had aided the rebellion should be disqualified from voting or holding office.9

  Here was a chance for Johnson to gain Stanton’s aid in bridging the gap between the White House and Congress. He must acquiesce in the verdict of the 1866 elections, submit to congressional leadership, as he could not overcome it, and leave the South in suspended animation for the remainder of his term. But the President was no longer sensitive to moderate nuances. He thought that Stanton was pleading from weakness rather than bidding from strength, and rejected his appeal.

  Johnson leaked accounts of these proceedings to friendly newspapers. Southern whites, encouraged by the implications of Stanbery’s in
terpretation, intensified their harassment of soldiers and Negroes. Stanton and Grant thereupon circularized all Southern commands, cautioning officers to “great vigilance … for the prompt suppression of riots and breaches of the public peace.” Pope removed more civil officials in Alabama. Sickles, despairing of the willingness of a South Carolina sheriff to punish offenders, threatened to arrest the offender and try him before a military court. Sheridan reported that he was preparing to oust more state officeholders in Louisiana.

  Rumors grew that the President was on the point of removing Sheridan from his command as a sign to all the military governors to halt their interferences with state personnel. Sheridan had been the most outspoken of the high army officials in supporting the congressional policies for the South, and he was known as Grant’s protégé. Grant wrote encouragingly to him: “You have to the fullest extent the confidence of the Secretary, the loyal people generally, and myself. Removal cannot hurt you if it does take place, and I do not believe it will. You have carried out the acts of Congress, and it will be difficult to get a general officer who will not.”10

  Trouble loomed closer to home. A District of Columbia municipal election was scheduled for June 3, and riots were feared now that Negroes could vote. Stanton ordered soldiers to duty, but one situation almost thwarted his security measures. A quartermaster captain of Democratic convictions refused to allow colored laborers time off to vote, and arranged with Negrophobe friends to block the roads and canal routes from his suburban supply depot into Washington. District Negroes, hearing of this plot, started out to free the coerced laborers. Stanton learned what was going on. He hurried Adjutant General Thomas off to investigate “in order that those who deserve to exercise the franchise have leave to do so without intimidation or interference.” By noon the belligerent captain was behind guardhouse bars. Army wagons were hurrying his jubilant employees to the polls. What might have been a bloody riot was transformed into a celebration. Though Welles saw in the Republican victory only evidence of managed black votes, Stanton took pleasure in the effective way he had enforced the new suffrage law.11

  Stanton in his office at the War Department, 1865. (photo credit 26.1)

  “A Fight for the Championship.” From Frank Leslie’s Illustrated Newspaper, February 15, 1868. (photo credit 26.2)

  Probably the last photograph of Stanton, 1869. (photo credit 26.3)

  In the first week of June, Johnson went off on a trip, after ordering that Sheridan extend indefinitely the registration period for voting in New Orleans. The general obeyed this command, but disregarding the implications of Stanbery’s views on the reconstruction laws, excluded from the polls all residents with rebel pasts, despite tenders of oaths claiming unalloyed past loyalty. Again, Grant secretly applauded his actions. Sheridan then discharged some levee commissioners. Governor Wells, of Louisiana, wired the President requesting that he revoke Sheridan’s order; the President did so. But after reinstating the levee commissioners, Sheridan removed Governor Wells. Speculation increased as to what the President would do to Sheridan when he returned to Washington, and administration newspapers distorted the meaning of Stanton’s bid for compromise to insinuate that the War Secretary was now with the President.

  Grant was also absent from Washington; because he distrusted the President, he would leave the capital only when Johnson did. When the Sheridan story broke, Stanton sent Grant a code message: “You are needed here.” Grant hurried back to Washington. After a conference with the anxious Secretary, Grant on June 7 wrote confidentially to Sheridan: “I know Mr. Stanton is disposed to support you not only in this last measure but in every official act of yours so far. He can not say so because it is in the Cabinet he has to do this and there is no telling when he may not be overruled and it would not be in keeping with his position to announce beforehand that he intended to differ with his associate advisers.” Grant assured Sheridan that the President had earned the distrust of army officers, apart from any question of politics, by this cowardly thrust at Sheridan during Grant’s absence.12

  During the fortnight spanning his compromise offer of May 23 and the thwarting of Johnson’s plans for Sheridan on June 7, Stanton lost faith in the possibility that moderation might stabilize the course of events. He now joined irrevocably with Grant in sustaining the absolute powers of the military commanders in the South under Congress’s laws. Hearing that Sickles was refusing to obey writs of habeas corpus issued by United States courts in the Carolinas requiring the general to turn over civilian prisoners convicted by military tribunals of murdering Union soldiers, Stanton telegraphed him: “You will neither give up the prisoners nor submit to arrest, but take into custody any and all persons attempting either.”13

  The President had returned to Washington and was on hand for the cabinet meeting on June 11, when Stanbery offered his greatly polished argument restricting the powers of the army commanders. Stanton dissented from every point, without any suggestion of compromise. Three days later, after hearing a final draft of Stanbery’s opinion, the President decided to postpone for a while a direct assault on the Army, and to swivel his guns on Stanton, who Johnson mistakenly felt was weakening and might be coerced into submission or into resigning.

  When the cabinet assembled on June 18, Johnson adopted a disingenuous pose of an innocent seeking guidance. He wanted, he said, “to avail himself of all the light which could be offered by … members of the Cabinet, to enable him to see that these [reconstruction] laws be faithfully executed, and to decide what orders and instructions are necessary to be given to the Military Commanders,” as well as to be instructed on the wider question of his authority over the generals in the South. It was very important, the President continued, to have unanimity of opinion in the cabinet, and he wanted to scotch the rumors that accord did not exist.

  Johnson and Stanbery rigged their trap by asking each cabinet officer’s opinion on a curious catalogue of insignificant and unimportant matters, few of which were directly concerned with the major issues the President had stressed in his opening remarks. Not surprisingly, cabinet unanimity did exist on the questions of age and residential requirements for voters, the responsibility of registrars to maintain records, and the propriety of disfranchising Southerners who had held national commissions and thereafter joined the rebellion.

  On points of greater substance, however, Stanton stubbornly stood alone. He was not dismayed by the President’s portentous tone, and perhaps the Secretary courted dismissal at this time, when he was ready to justify his position before the cabinet and the country and yet avoid the consequences to himself that he feared would come if Johnson continued to reach out for control of the Army.

  So Stanton cast dissenting votes all through the long afternoon. Registrars, he held, must be able to reject voters whom they suspected of perjury in subscribing the required loyalty oath. Members of secession conventions, state militias, and home-guard units, county and municipal officials, attorneys (as they were court officers), and even large contributors to rebel charities were as guilty of treason as frontline rebel soldiers and should not vote or hold office in the South. Aid to the rebellion must have been voluntary to warrant disfranchisement, Stanbery insisted. Stanton held that it was impossible to establish what was voluntary and what was coerced.

  When dusk fell, the weary men prepared to adjourn. Stanbery announced that on the next day he would bring up for discussion some drafts of the interpretation of the reconstruction laws which he was preparing for the guidance of the army commanders.14 But when the cabinet reassembled on June 19, and Stanton asked Stanbery whether his drafts were ready, Stanbery lamely replied that he had not had time to prepare them.

  He had had, however, time enough to assemble another set of “interrogatories” and to get them printed, and now passed out copies to each cabinet officer. Stanton objected to this “string of general questions” to which “gentlemen were required to make immediate answer.” The questions were plain and simple, and anyone should be a
ble to give an opinion on them without preparation, Stanbery retorted, ignoring the fact that he and the President had carefully prepared answers as well as inquiries.

  Stanton lost patience with the farce. He commenced reading a statement he had carefully prepared, supporting Congress’s plenary powers in reconstruction and the independence of the generals in the South from the President. Although Johnson and Stanbery tried frequently to interrupt him, Stanton would not halt. Then, as soon as he had finished, each of his cabinet colleagues derided his assumptions and conclusions. Stanton refused to be drawn into a useless debate. The past week of exhausting arguments had shown him only what he already knew—that he was isolated in the cabinet. He also knew, better than the President and his supporters, that Congress held the reins of power and was prepared to lash out at Johnson for adequate cause. Stanton was convinced that the worst thing that Johnson could do was to fail to heed the danger signals so prominently flying, and Stanbery’s advice was leading the President toward that extreme position.

  Therefore, Stanton, having presented his brief, refrained from arguing further with his cabinet brethren, who after all were merely spectators. He would save his energy for the judge and jury on Capitol Hill, for the verdict must come from Congress. His position was on record, and he supposed the President could not now assert that there was unanimity of opinion in the cabinet.

  But Johnson was determined to carry on the play, and so the inquisition resumed the next day, when the President sprang a set of special questions on Stanton. Couched in such artful simplicity that both yes and no answers were equally meaningless, they were designed to confuse the public and to push Stanton to the point of saying that the President had absolutely no powers left over the Army in the South.