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Johnson stated that he could change none of his opinions expressed in the first veto, while he now saw many additional objections. Neither bill was passed over the veto.
Another measure of like nature was the Nebraska bill, which was passed on July 27, the last day but one of the session. The President “pocketed” it. Both bills were again introduced at the beginning of the second session by Senator Wade, and the Nebraska bill was duly passed. It was vetoed January 30, 1867, but within ten days was passed over the veto by both houses, Nebraska being able to present stronger arguments for receiving statehood than Colorado, and consequently obtaining more support from the conservative members of the Republican party. The principal objection expressed in the veto message was the incongruities existing in the bill, the first section admitting the State “upon an equal footing with the original States in all respects whatsoever," and the third section providing that "there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, except Indians not taxed.” This assertion of the right of Congress to regulate the elective franchise the President declared clearly unconstitutional, and incompatible with an equal footing with the original States.'
7. The central event, naturally, of the first session of the 39th Congress was the report of the Joint Committee on Reconstruction. Although during the session there was a great amount of discussion as to the theory and method of reconstruction, and, as has been shown, two important measures were passed over
the President's veto, the majority in the House still felt uncommitted as to the policy they should favor, excepting so far as the measures already reported from the committee had given shape to
McPherson, History of the Reconstruction, pp. 164–6; Congressional Globe, 39th Congress, ist Session.
their plans. A definite platform had not been erected on which they could stand, and they were not certain of the foundations on which to base constructive legislation. It was quite evident from the resolutions and bills reported from the committee to Congress, that the testimony taken before it had not changed the views of the majority of the committee, and the general tenor of the report was not a surprise to any one. Its constitutional importance cannot be questioned, since the Republican party adopted its construction of the Constitution, and proceeded to frame, on the lines marked out by the report, the bills which changed decidedly the relations between the States and the Federal Government, affording precedents for an extension of federal power which previous to the close of the war few could have been found to support.'
No theory as to the status of the Southern States was agreed on by the committee. Among those signing the majority report several distinct views can be noted. The theory of Thaddeus Stevens, that the States were now merely conquered territory, at the mercy of the conqueror, has already been noticed. Mr. Boutwell, of Massachusetts, was one of those who theoretically differed from Mr. Stevens, preferring to consider the States as “dead States" within the Union. Mr. Bingham, of Ohio, was still less radical, simply calling them “disorganized States.” But realizing the futility of introducing distinctions which could not affect the main question at issue, the majority dropped “the profitless abstraction,” and agreed upon the general conclusions
Hurd, in his Theory of our National Existence, p. 42, says that this report of the Joint Committee on Reconstruction “ as being the most authoritative declaration of principles supposed to have been afterwards carried out in political action, is a document which, either for good or evil, will probably be regarded as one of the most important in the history of this country.”
2 For an extended discussion of the constitutional views of the members of the committee, see Hurd's Theory', etc., pp. 224 ff.
and recommendations. The report was finally presented to Congress on June 18, all the members signing excepting Johnson, Rogers and Grider, who submitted a minority report four days later.
The first portion of the report is a general review of the steps which had already been taken by the President, and of the powers of the executive and legislative departments. It was declared that at the close of the war the Confederate States were in a condition of utter exhaustion and complete anarchy. Congress having failed to provide for the contingency, the President had no power except to
execute the national laws and establish "such a system of government as might be provided for by existing national statutes." These States“ by withdrawing their representatives in Congress, by renouncing the privilege of representation, by organizing a separate government, and by levying war against the United States, destroyed their State constitutions in respect to the vital principle which connected their respective States with the Union and secured their federal relations; and nothing of these constitutions was left of which the United States were bound to take notice.” The President had two alternatives: either to “assemble Congress and submit the whole matter to the law-making power," or to continue military supervision in his capacity as commander-in-chief of the army, until the regular assembling. Choosing the latter course, he appointed over the revolted States provisional governors who possessed military authority, but who “had no power to organize civil governments nor to exercise any authority except that which inhered in their own persons under their commissions." The President in his military capacity might properly permit the people to form local governments, execute local laws not inconsistent with national laws, and even withdraw military forces altogether if he deemed it safe. But to Congress,
not to the President, belonged the power “to decide upon the nature or effect of any system of government which the people of these States might see fit to adopt,” and to fix terms by which the States might be restored to all their rights and privileges as States of the Union. “The loss of representation by the people of the insurrectionary States was their own voluntary choice. They might abandon their privileges, but they could not escape their obligations,” and they could not complain.
None of the revolted States, the report continued, excepting perhaps Tennessee, were in a condition to resume their former political relations. Their so-called “amended constitutions” had never been submitted to the people for adoption, and when they were thus submitted there was nothing to prevent their repudiation. If these States were without state governments, they should be regularly organized, but in no case had the proper preliminary steps been taken. The conventions assumed that the old constitutions were still in force, and that only such amendments as the federal government required, were needed. “In no instance was regard paid to any other consideration than obtaining immediate admission to Congress, under the barren form of an election in which no precautions were taken to secure regularity of proceedings or the consent of the people.” Before they were restored to their full rights “they should exhibit in their acts something more than unwilling submission to an unavoidable necessity." Great stress was laid upon the headstrong action of the States since Johnson's proclamation of amnesty: the character of the men elevated to the highest positions; the discriminating legislation; the arrogance of the Southern press, and the opposition to the Freedmen's Bureau. The testimony of witnesses as to the general disposition to repudiate the national debt, if such a thing should prove
possible, and as to the natural reluctance to pay taxes, were perhaps too seriously taken, as was also the “proof of a condition of feeling hostile to the Union and dangerous to the government."
But, whether acting on exaggerated estimates or not, the majority of the committee formulated their conclusions into three clauses, which were as follows:
1. “That the States lately in rebellion were at the close of the war disorganized communities, without civil government, and without constitutions or other forms by virtue of which political relations could legally exist between them and the Federal Government.
2. “That Congress cannot be expected to recognize as valid the election of representatives from disorganized communities, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the observance of which has been hitherto required.
3. “That Congress would not be justified in admitting such communities to a participation in the government of the country without first providing such constitutional or other guaranties as will tend to secure the civil rights of all citizens of the Republic; a just eqality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the government; and the exclusion from positions of public trust of at least a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence."
In addition, the report contained an enumerated statement of “general facts and principles " which it was claimed were "applicable to all the States recently in rebellion." In this statement it was asserted that from the time war was declared