Political Recollections Part 8

During this session of Congress the policy of Military Land Bounties was very earnestly agitated, and threatened the most alarming consequences. Probably no great question has been so imperfectly understood by our public men as the land question, and the truth of this is attested by the multiplied schemes of pillage and plunder to which the public domain has been exposed within the past thirty or forty years. Among these the project of Land Bounties to soldiers has been conspicuous. Of the millions of acres disposed of by the Government through a.s.signable land-warrants in the pretended interest of the soldiers of the Mexican War a very small fraction was appropriated to their use. The great body of the land fell into the hands of monopolists, who thus hindered the settlement and productive wealth of the country, while the sum received by the soldier for his warrant was in very many cases a mere mockery of his just claims, and in no instance an adequate bounty. The policy, however, had become traditional, and now, at the close of the grandest of all our wars, it was quite natural for the country's defenders to claim its supposed benefits. Congress was flooded with their pet.i.tions, and it required uncommon political courage to oppose their wishes. It was very plausibly urged that the Nation, with its heavy load of debt, could not pay a bounty in money, and that it should be done by drawing liberally upon the thousand million acres of the public domain. Some of the advocates of this policy openly favored the repeal of the Homestead law for this purpose, just as Thurlow Weed, earlier in the war, had demanded its repeal so that our public lands could be mortgaged to European capitalists in security for the money we needed to carry on the struggle. The situation became critical. Everybody was eager to reward the soldier, and especially the politicians; and there seemed to be no other way to do it than by bounties in land, for which all our previous wars furnished precedents. The House Committee on Public Lands considered the question with great care and anxiety, and in the hope of check-mating that project made a report in response to one of the many pet.i.tions for land bounty which had been referred to it, embodying some very significant facts. It showed that more than two millions and a quarter of soldiers would be ent.i.tled to a bounty in land, and that it would require more than one third of the public domain remaining undisposed of, and cover nearly all of it that was really fit for agriculture; that the warrants would undoubtedly be made a.s.signable, as in the case of previous bounties, and that land speculation would thus find its new birth and have free course in its dreadful ravages; and that it would prove the practical overthrow of the policy of our pre-emption and homestead laws and turn back the current of American civilization and progress. The report further insisted that the Nation could not honorably plead poverty in bar of the great debt it owed its defenders, and it was accompanied by a bill providing a bounty in money at the rate of eight and one third dollars per month for the time of their service, which was drawn after conferring with intelligent men among them who fully appreciated the facts and arguments of the committee. This report and its accompanying bill had an almost magical effect. They not only perfectly satisfied the soldiers everywhere, but revolutionized the opinion of both Houses of Congress, and thus saved the public domain from the wholesale spoilation that had threatened it. The bill was referred to the Military Committee, and afterward became well known by its t.i.tle of "General Schenck's bill." It pa.s.sed the House, but failed in the Senate. It pa.s.sed the House repeatedly at different session of Congress afterward, although it never became a law; but it was the timely and fortunate instrument through which the public domain was saved from the wreck which menaced it in the hasty adoption of a scheme which would have proved as worthless to our soldiers as disastrous to the country.

CHAPTER XIII.

MINERAL LANDS AND THE RIGHT OF PRE-EMPTION.

The lead and copper lands of the Northwest--The gold-bearing regions of the Pacific, and their disposition--A legislative reminiscence --Mining Act of 1866, and how it was pa.s.sed--Its deplorable failure, and its lesson--Report of the Land Commission--The Right of Pre- emption, and the "Dred Scott decision" of the settlers.

The action of the Government in dealing with the mineral lands of the United States forms one of the most curious chapters in the history of legislation. It had its beginning in the famous Congressional Ordinance of May 20, 1785, which reserved one third part of all gold, silver, lead and copper mines to be sold or otherwise disposed of as Congress might direct. From this time till the discovery of gold in California in 1848, the legislation of Congress respecting mineral lands related exclusively to those containing the base or merely useful metals, and applied only to the regions now embraced by the States of Michigan, Wisconsin, Iowa, Illinois and Missouri. The policy of reserving mineral lands from sale was obviously of feudal origin, and naturally led to the leasing of such lands by the Government, which was inaugurated by the Act of Congress of March 3, 1807. The Act of Congress of March 3, 1829, provided for the sale of the reserved lead mines and contiguous lands in Missouri, on six months' notice, but mineral lands elsewhere remained reserved, and continued to be leased by the Government. This policy was thoroughly and perseveringly tried, and proved utterly unprofitable and ruinous. President Polk, in his message of December 2, 1845, declared that the income derived from the leasing system for the years 1841, 1842, 1843 and 1844 was less than one fourth of its expense, and he recommended its abolition, and that these lands be brought into market. The leasing policy drew into the mining regions a population of vagrants, idlers and gamblers, who resisted the payment of tax on the product of the mines, and defied the agents of the Government. It excluded sober and intelligent citizens, and hindered the establishment of organized communities and the development of the mines. The miners were violently opposed to the policy of sale, but the evils incident to the leasing policy became so intolerable that the Government was at length obliged to provide for the sale of the lands in fee, which it did by Acts of Congress of July 11, 1846, and March 1 and 3, 1847. The tracts occupied and worked by the miners under their leases possessed every variety of shape and boundary, but there were no difficulties which were not readily adjusted under the rectangular system of surveys and the regulations of the Land Department. A new cla.s.s of men at once took possession of these regions as owners of the soil, brought their families with them, laid the foundations of social order, expelled the semi-barbarians who had secured a temporary occupancy, and thus, at once promoted their own welfare, the prosperity of the country, and the financial interests of the Government. Under this reformed policy the lead and copper lands of the regions named were disposed of in fee.

But the gold-bearing regions covered by our Mexican acquisitions created a new dispensation in mining, and invited the attention of Congress to the consideration of a new and exceedingly important question. How should these mineral lands be disposed of? They covered an area of a million square miles, and their exploration and development became a matter of the most vital moment, not only in a financial point of view, but as a means of promoting the settlement and tillage of the agricultural lands contiguous to the mineral deposits. President Fillmore, in his message of December 2, 1849, recommended the sale of these lands in small parcels, and Mr. Ewing, his Secretary of the Interior, urged upon Congress the consideration of the subject, and recommended the policy of leasing them; but no attention seems to have been given to these recommendations.

By Act of Congress of September 27, 1850, mineral lands in Oregon were reserved from sale; and by Acts of March 3, 1853, and of July 22, 1854, they were reserved in California and New Mexico. This was the extent of Congressional action. Early in the late war, the Secretary of the Interior, Hon. Caleb B. Smith, referred to the question, and the Commissioner of the General Land Office afterward repeatedly recommended the policy of leasing, but Congress took no notice of the subject. My interest in the question was first awakened in the fall of 1864, in carefully overhauling our land policy. Our mineral lands for more than sixteen years had been open to all comers from whatever quarter of the globe, during which time more than a thousand million dollars had been extracted, from which not a dollar of revenue reached the National Treasury save the comparatively trifling amount derived from the Internal Revenue tax on bullion. This fact was so remarkable that it was difficult to accept it as true. The Government had no policy whatever in dealing with these immense repositories of national wealth, and declined to have any; for a policy implies that something is to be done, and points out the method of doing it. It had prohibited the sale of mineral lands, and then come to a dead halt.

The Const.i.tution expressly provides that Congress shall have power "to make all needful rules and regulations respecting the territory or other property belonging to the United States"; but Congress, in reserving these lands from sale and taking no measures whatever respecting their products, simply abandoned them, and, as the trustee of the Nation, became as recreant as the father who abandons his minor child.

The case was a very curious one, and the more I considered it, the more astonished I became at the strange indifference of the Government, and that no public man of any party had ever given the subject the slightest attention. The Nation had been selling its lands containing iron, copper and lead, and the policy of vesting an absolute fee in individual proprietors had been accepted on actual trial, and after the leasing policy had signally failed, and I could see nothing in the distinction between the useful and precious metals which required a different policy for the latter.

Some policy was absolutely demanded. The country, loaded down by a great and continually increasing war debt, could not afford to turn away from so tempting a source of revenue. To sleep over its grand opportunity was as stupid as it was criminal. It was obvious that if the Government continued to reserve these lands from sale, some form of tax or royalty on their products must be resorted to as a measure of financial policy; but this would have involved the same political anomaly as the policy of leasing, and the same failure. In principle it was the same. To retain the fee of the lands in the Government and impose a rent upon their occupiers, would make the Government a great landlord, and the miners its tenants. Such a policy would not be American, but European. It would not be Democratic, but Feudal. It would be to follow the Governments of the Old World, which reserve their mineral lands for the Crown, because they are esteemed too precious for the people. It was at war with our theory of Democracy, which has respect chiefly to the individual, and seeks to strengthen the Government by guarding his rights and promoting his well-being.

These considerations convinced me that the time had come to abandon the non-action course of the Government, and adopt a policy in harmony with our general legislation; and that the survey and sale of these lands in fee was the best and only method of promoting security of t.i.tles, permanent settlements, and thorough development.

As early as December, 1864, I therefore introduced a bill embodying this policy, which was followed by a similar measure, early in the Thirty-ninth Congress, accompanied by an elaborate report, arguing the question pretty fully, and combating all the objections to the principle and policy of sale. My views were commended by Secretary McCullough, as they had been by Mr. Chase, while I was glad to find them supported by intelligent men from California, who spoke from actual observation and extensive experience in mining.

But although this measure fully protected all miners in the right of exploration and discovery, and carefully guarded against any interference with vested rights, the idea was in some way rapidly and extensively propagated that it contemplated a sweeping confiscation of all their claims, and the less informed among them became wild with excitement. The politicians of California and Nevada, instead of endeavoring to enlighten them and quiet this excitement, yielded to it absolutely. They became as completely its instruments as they have since been of the Anti-Mongolian feeling. They argued, at first, that no Congressional legislation was necessary, and that while the Government should retain the fee of these lands, the miners should have the entire control of them under regulations prescribed by themselves. This, it was believed, would placate the miners and settle the question; but the introduction of the measure referred to, and the agitation of the question, had made some form of legislation inevitable, and the question now was to determine what that legislation should be. Senators Conness of California, and Stewart of Nevada, who were exceedingly hostile to the bill I had introduced, and feared its pa.s.sage, sought to avert it by carrying through the Senate "a bill to regulate the occupation of mineral lands and to extend the right of pre-emption thereto,"

which they hoped would satisfy their const.i.tuents and prevent further legislation. They supported it as the next best thing to total non-action by Congress. It provided for giving t.i.tle to the miners, but it did this by practically abdicating the jurisdiction of the National Government over these lands, with its recognized and well-settled machinery for determining all questions of t.i.tle and boundary, and handing them over to "the local custom or rules of the miners." These "local rules" were to govern the miner in the location, extension and boundary of his claim, the manner of developing it, and the survey also, which was not to be executed with any reference to base lines as in the case of other public lands, but in utter disregard of the same. The Surveyor General was to make a plat or diagram of the claim, and transmit it to the Commissioner of the General Land Office, who, as the mere agent and clerk of the miner, with no judicial authority whatever, was required to issue the patent. In case of any conflict between claimants it was to be determined by the "local courts," without any right of appeal to the local land offices, the General Land Office, or to the Federal courts. The Government was thus required to part with its lands by proceedings executed by officials wholly outside of its jurisdiction, and irresponsible to its authority.

The act not only abolished our rectangular system of surveys, but still further insulted the principles of mathematics and the dictates of common sense by providing that the claimant should have the right to follow his vein or lode, "with its dips, angles and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition"; a right unknown to the mining codes of England, France or Prussia, and not sanctioned by those of Spain or Mexico. Subject to this novel principle the crudely extemporized rules of the miners were to be recognized as law, and this system of instability and uncertainty made the basis of t.i.tle and the arbiter of all disputes, instead of sweeping it away and ushering in a system of permanence and peace through the well-appointed agency of the Land Department.

It was easy to see that this was an act to encourage litigation and for the benefit of lawyers, and not to promote the real interest of the miners or increase the product of the mines.

This was made perfectly clear at the time, by the report of a Senate committee of the Legislature of Nevada. In speaking of the local laws of the miners, it says, "There never was confusion worse confounded. More than two hundred districts within the limit of a single State, each with its self-approved code; these codes differing not alone each from the other, but presenting numberless instances of contradiction in themselves. The law of one point is not the law of another five miles distant, and a little further on will be a code which is the law of neither of the former, and so on, _ad inifitum;_ with the further disturbing fact superadded, that the written laws themselves may be overrun by some peculiar custom which can be found nowhere recorded, and the proof of which will vary with the volume of interested affidavits which may be brought on either side to establish it. Again, in one district the work to be done to hold a claim is nominal, in another exorbitant, in another abolished, in another adjourned from year to year. A stranger, seeking to ascertain the law, is surprised to learn that there is no satisfactory public record to which he can refer; no public officer to whom he may apply, who is under any bond or obligation to furnish him information, or guarantee its authenticity.

Often, in the new districts, he finds there is not even the semblance of a code, but a simple resolution adopting the code of some other district, which may be a hundred miles distant. What guarantee has he for the investment of either capital or labor under such a system?" The report proceeds to show that these regulations can have no permanency. "A miners' meeting," it declares, "adopts a code; it stands apparently as the law. Some time after, on a few days' notice, a corporal's guard a.s.sembles, and, on simple motion, radically changes the whole system by which claims may be held in a district. Before a man may traverse the State, the laws of a district, which by examination and study he may have mastered, may be swept away, and no longer stand as the laws which govern the interest he may have acquired; and the change has been one which by no reasonable diligence could he be expected to have knowledge of." Of course these facts thus officially stated in the interest of the miners of Nevada, were applicable to California, and all the mining States and Territories, and they fitly and very forcibly rebuked the attempt to enact the Senate bill.

When this bill reached the House it was properly referred to the Committee on Public Lands, which then had under consideration the bill I had reported providing for the survey and sale of mineral lands through the regular machinery of the Land Department. The House Committee subsequently reported it favorably, and could not be persuaded by the delegations from California and Nevada to adopt the Senate bill as a subst.i.tute. Senators Stewart and Conness, finding their project thus baffled, and becoming impatient of delay as the session neared its close, called up a House bill ent.i.tled "An Act granting the right of way to ditch and ca.n.a.l owners over the Public Lands in the States of California, Oregon and Nevada,"

and succeeded, by sharp practice, in carrying a motion to strike out the whole of the bill except the enacting clause, and insert the bill which the Senate had already enacted and was then before the House Committee. This maneuver succeeded, and the bill, thus enacted by the Senate a second time, and now under a false t.i.tle, was sent to the House, where it found its place on the Speaker's table, and was lying in wait for the sudden and unlooked-for movement which was to follow. The t.i.tle was misleading, and thus enabled Mr. Ashley of Nevada, to obtain the floor when it was reached, and under the gag, which of course would cut off all amendment and debate, he attempted to force through a measure revolutionizing the whole land policy of the Government so far as relates to the Western side of the continent, and surrendering the national authority over its vast magazines of mineral wealth to the legalized jargon and bewilderment I have depicted. I succeeded in preventing a vote by carrying an adjournment, but the question came up the next day, and the Senators referred to, with their allies in the House, had used such marvelous industry in organizing and drilling their forces, and the majority of the members knew so little about the question involved, that I found the chances decidedly against me. I was obliged, also, to encounter a prevailing but perfectly unwarranted presumption that the representatives of the mining States were the best judges of the question in dispute, while it was foolishly regarded as a local one, with which the old States had no concern. The clumsy and next to incomprehensible bill thus became a law, and by legislative methods as indefensible as the measure itself.

Such is the history of this remarkable experiment in legislation; but it is an experiment no longer. Its character has been perfectly established by time, and the logic of actual facts. It has been extensively and thoroughly tried, and after repeated attempts to amend it by supplementary legislation, its failure stands recorded in the manifold evils it has wrought. The Land Commission, appointed under the administration of President Hayes in pursuance of an Act of Congress to cla.s.sify the Public Lands and codify the laws relating to their disposition, visited the mining States and Territories in detail, and devoted ample time to the examination of witnesses and experts in every important locality touching the policy and practical operation of the laws in force relating to mineral lands. This Commission condemned these laws on the strength of overwhelming evidence, and recommended a thorough and radical reform, including the reference of all disputed questions as to t.i.tle and boundary to the regular officials of the United States; the abolition of the "local custom or rules of miners," with the "local courts"

provided for their adjudication; and the adoption of the United States surveys as far as practicable, including the geodetical principle of ownership in lieu of the policy of allowing the miner to follow his vein, "with its dips, angles and variations under the adjoining land of his neighbor," which policy is declared to be the source of incalculable legislation. The Commission, in short, urged the adoption of the principles of the Common Law and the employment of the appropriate machinery of the Land Department, as a subst.i.tute for the frontier regulations which Congress made haste to nationalize in 1866. It declared that under these regulations "t.i.tle after t.i.tle hangs on a local record which may be defective, mutilated, stolen for blackmail, or destroyed to accomplish fraud, and of which the grantor, the Government, has neither knowledge nor control"; that in the evidence taken "it was repeatedly shown that two or three prospectors, camped in the wilderness, have organized a mining district, prescribed regulations involving size of claims, mode of location and nature of record, elected one of their number recorder, and that officer, on the back of an envelope, or on the ace of spades grudgingly spared from his pack, can make with the stump of a lead pencil an entry that the Government recognizes as the inception of a t.i.tle which may convey millions of dollars; that even when the recorder is duly elected he is not responsible to the United States, is neither bonded nor under oath, may falsify or destroy his record, may vitiate the t.i.tle to millions of dollars, and snap his fingers in the face of the Government; and that our present mining law might fitly be ent.i.tled 'An Act to cause the Government to join, upon unknown terms, with an unknown second party, to convey to a third party an illusory t.i.tle to an indefinite thing, and encourage the subsequent robbery thereof.'"

These strong statements are made by a Government commission composed of able and impartial men, who were guided in their patient search after the truth by the evidence of "a cloud of witnesses," who spoke from personal knowledge and experience. The character of our mining laws is therefore not a matter of theory, but of demonstrated fact. They scourge the mining States and Territories with the unspeakable curse of uncertainty of land t.i.tles, as everywhere attested by incurable litigation and strife. They thus undermine the morals of the people, and pave the way for violence and crime. They cripple a great national industry and source of wealth, and insult the principles of American jurisprudence. And the misfortune of this legislation is heightened by the probability of its continuance; for it is not easy to uproot a body of laws once accepted by a people, however mischievous in their character.

Custom, and the faculty of adaptation, have a very reconciling influence upon communities as well as individuals. Moreover, men absorbed in a feverish and hazardous industry, and stimulated by the hope of sudden wealth, are not disposed to consider the advantages of permanent ownership and security of t.i.tle. Their business is to make their locations according to local custom, and sell out to the capitalists; while the men who feel the burden of litigation and the evil of uncertain t.i.tles, are not the men who control public opinion and influence the course of legislation. It may thus happen that a system of laws initiated by itinerant miners solely for the protection of their transient posessory interests, and carried through Congress at their behest by parliamentary roguery, may be permanently engrafted upon half the continent. If California had been contiguous to the older States, and her mining operations had only kept pace with the progress of settlements, or if her representatives had been less ready to sacrifice the enduring interests of their const.i.tuents for temporary and selfish ends, the wretched travesty of law which now afflicts the States and Territories of the West would have been unknown, and the same code and forms of administration would have prevailed from the lakes to the Pacific.

The lesson of this vital mistake is a pregnant one. The laws regulating the ownership and disposition of landed property not only affect the well-being but frequently the destiny of a people.

The system of primogeniture and entail adopted by the Southern States of our Union favored the policy of great estates, and the ruinous system of landlordism and slavery which finally laid waste the fairest and most fertile section of the republic and threatened its life; while the New England States, in adopting a different system, laid the foundations of their prosperity in the soil itself, and "took a bond of fate" for the welfare of unborn generations.

Their political inst.i.tutions were the logical outcome of their laws respecting landed property, which favored a great subdivision of the land and great equality among the people, thus promoting prosperous cultivation, compact communities, general education, a healthy public opinion, democracy in managing the affairs of the church, and that system of local self government which has since prevailed over so many States. So intimate and vital are the relations between a community and the soil it occupies that in the nomenclature of politics the word "people" and "land" are convertible terms; but no people can prosper under any system of land tenures which tolerates a vexatious uncertainty of t.i.tle, and thus prompts every man to become the enemy of his neighbor in the scuffle for his rights. Such a state of affairs is worse than pestilence or famine; but the evil of uncertain t.i.tles puts on new and very aggravated forms in our gold-bearing regions. The business of mining naturally awakens the strongest pa.s.sions. It sharpens the faculties and dulls the conscience. It gives to cupidity its keenest edge. Its prizes are often rich and suddenly gained, and when they are sought through the forms of a law which compels a man to choose between an expensive and hazardous litigation and robbery, human nature is severely tried. No situation could well be more deplorable than that which obliges a man to pay heavy black- mail as the only means of saving his property from legal confiscation by another; and the moral ravages of a code which allows this can not be computed. It tempts civilized men to become savages and savages to become devils. It is not a mistake merely, but a great misfortune, that our laws touching so delicate and vital a question as the ownership and transfer of mineral lands were not so framed as to avert these frightful evils. As far as the past is concerned they are without remedy, and there is no positive safeguard for the future but in a return to the time-honored principles which give to the owner of the surface all that may be found within his lines, extended downward vertically, and refer all disputes to the old-fashioned and familiar machinery of the General Land Office.

This system gave order and peace to the great lead and copper regions of the Northwest, and it would bring with it the same inestimable blessings to the hara.s.sed and sorely tried regions of the Pacific slope.

About the same time the action of Congress supplied another example of hasty and slip-shod legislation, which has been perhaps equally prolific of evil. The State of California, soon after her admission, had a.s.sumed the right to dispose of the public lands within her borders according to her own peculiar wishes, and in disregard of the authority of the United States. This led to such serious conflicts and complications, that a remedy was sought in a bill to quiet land t.i.tles in that State. It was a very questionable measure, inasmuch as the parties claiming t.i.tle under the State could only be relieved by recognizing her illegal acts as valid, and at the expense of claimants under the laws of the United States. It necessarily involved the right of pre-emption, and this was distinctly presented in connection with what was known as the Suscol Ranch in that State. It contained about ninety thousand acres, and was covered by an old Spanish grant which the Supreme Court of the United States in the year 1862 had p.r.o.nounced void, soon after which numerous settlers went upon the land as pre-emptors, as they had a right to do. Their claims as such, being disputed by parties a.s.serting t.i.tle under the void grant, the General Land Office, on the reference of the question to that department, decided in favor of the pre-emptors, upon which the opposing parties procured the submission of the question to the Attorney-General. That officer gave his opinion to the effect that a settler under the pre-emption laws acquires no vested interest in the land he occupies by virtue of his settlement, and can acquire no such interest, till he has taken _all_ the legal steps necessary to perfect an entrance in the Land Office, being, in the meantime, a mere tenant-at-will, who may be ejected by the Government at any moment in favor of another party. In pursuance of this opinion scores of _bona fide_ settlers were driven from their pre-emptions, which the laws of the United States had offered them, on certain prescribed conditions, with which they were willing and anxious to comply, and their homes, with the valuable improvements made upon them in good faith, were handed over to speculators and monopolists. The proceeding was as outrageous as the ruling which authorized it was surprising to the whole country; and it naturally awakened uneasiness and alarm among our pioneer settlers everywhere. It seemed to me very proper, therefore, that in a bill to quiet land t.i.tles in California, these troubles on this Ranch should be settled by a fitting amendment, which should protect the rights of these pre-emptors against the effect of the ruling referred to. The opinions of the Attorney- General had completely overturned the whole policy of the Government as popularly understood, and I simply proposed to restore it by a proviso guarding the rights of _bona fide_ settlers who were claiming t.i.tle under the laws of the United States; but to my perfect amazement I found the California delegation bitterly opposed to this amendment. The reading of it threw them into a spasm of rage, and showed that they were less anxious to quiet t.i.tles in their State than to serve the monopolies and rings which had trampled on the laws of the United States, and thus involved themselves in trouble. The zeal and industry of the delegation in this opposition could only be paralleled by their labors for the pa.s.sage of their mineral land bill; and the same appeals were made in both cases.

They said this was a "local measure," and that they understood the interests of the Pacific coast better than men from the old States, while they begged and b.u.t.ton-holed members with a pertinacity very rarely witnessed in any legislative body. They turned the business of log-rolling to such account that the amendment was defeated by a strong majority, while it proved the entering wedge to other and greater outrages upon the rights of settlers which the country has since witnessed, and was followed by a decision of the Supreme Court of the United States, fully affirming the principle laid down in the opinion of the Attorney General. This ruling, which has been aptly styled "the Dred Scott decision of the American Pioneer,"

has been repeatedly re-affirmed, while the claim of pre-emption, once universally regarded as a substantial right, has faded away into a glamour or myth.

CHAPTER XIV.

RECONSTRUCTION AND IMPEACHMENT.

Gov. Morton and his scheme of Gerrymandering--The XIV Amendment-- Hasty reconstruction and the Territorial plan--The Military Bill-- Impeachment--An amusing incident--Vote against impeachment--The vote reversed--The popular feeling against the President--The trial --Republican intolerance--Injustice to senators and to Chief Justice Chase--Nomination of Gen. Grant--Re-nomination for Congress--Personal --Squabble of place-hunters--XVI Amendment.

The fall elections of this year were complicated by the hostile influence of the Executive, but the popular current was strongly on the side of Congress. A few prominent Republican members followed the President, but the great body of them stood firm. In my own Congressional district my majority was over 6,200, notwithstanding the formidable conservative opposition in my own party, and its extraordinary efforts to divide the Republicans through the patronage of the Administration. Nearly all of my old opponents in the district and State were now Johnsonized, except Gov. Morton, whose temporary desertion the year before was atoned for by a prudent and timely repentance. He was not, however, thoroughly reconstructed; for in the Philadelphia Loyal Convention which met in September of this year to consider the critical state of the country, he used his influence with the delegates from the South to prevent their espousal of Negro Suffrage, and begged Theodore Tilton to prevail on Frederick Dougla.s.s to take the first train of cars for home, in order to save the Republican party from detriment. He was still under the shadow of his early Democratic training; and he and his satellites, vividly remembering my campaign for Negro Suffrage the year before, and finding me thoroughly intrenched in my Congressional district, hit upon a new project for my political discomfiture.

This was the re-districting of the State at the ensuing session of the Indiana Legislature, which they succeeded in accomplishing by disguising their real purpose. There was neither reason nor excuse for such a scheme at this time, apart from my political fortunes; and by the most shameless Gerrymandering three counties of my district, which gave me a majority of 5,000, were taken from me, and four others added in which I was personally but little acquainted, and which gave an aggregate Democratic majority of about 1,500.

This was preliminary to the next Congressional race, and the success of the enterprise remained to be tested; but it furnished a curious ill.u.s.tration of the state of Indiana Republicanism at that time.

On the meeting of Congress in December the signs of political progress since the adjournment were quite noticeable. The subject of impeachment began to be talked about, and both houses seemed ready for all necessary measures. Since mingling freely with their const.i.tuents, very few Republican members insisted that the XIV Const.i.tutional Amendment should be accepted as a finality, or as an adequate solution of the problem of reconstruction. The second section of that amendment, proposing to abandon the colored race in the South on condition that they should not be counted in the basis of representation, was now generally condemned, and if the question had been a new one it could not have been adopted. This enlightenment of Northern representatives was largely due to the prompt and contemptuous rejection by the rebellious States of the XIV Amendment as a scheme of reconstruction, and their enactment of black codes which made the condition of the freedmen more deplorable than slavery itself. In this instance, as in that of Mr. Lincoln's Proclamation of Emanc.i.p.ation, it was rebel desperation which saved the negro; for if the XIV Amendment had been at first accepted, the work of reconstruction would have ended without conferring upon him the ballot. This will scarcely be denied by any one, and has been frankly admitted by some of the most distinguished leaders of the party.

The policy of treating these States as Territories seemed now to be rapidly gaining ground, and commended itself as the only logical way out of the political dilemma in which the Government was placed.

But here again the old strife between radicalism and conservatism cropped out. The former opposed all haste in the work of reconstruction. It insisted that what the rebellious districts needed was not an easy and speedy return to the places they had lost by their treasonable conspiracy, but a probationary training, looking to their restoration when they should prove their fitness for civil government as independent States. It was insisted that they were not prepared for this, and that with their large population of ignorant negroes and equally ignorant whites, dominated by a formidable oligarchy of educated land-owners who despised the power that had conquered them, while they still had the sympathy of their old allies in the North, the withdrawal of Federal intervention and the unhindered operation of local supremacy would as fatally hedge up the way of justice and equality as the rebel despotisms then existing. The political and social forces of Southern society, if unchecked from without, were sure to a.s.sert themselves, and the more decided anti-slavery men in both houses of Congress so warned the country, and foretold that no theories of Democracy could avail unless adequately supported by a healthy and intelligent public opinion. They saw that States must grow, and could not be suddenly constructed where the materials were wanting, and that forms are worthless in the hands of an ignorant mob. It was objected to the territorial theory that it was arbitrary, and would lead to corruption and tyranny like the pro-consular system of Rome; but it was simply the territorial system to which we had been accustomed from the beginning of the Government, and could not prove worse than the hasty re-admission of ten conquered districts to the dignity of States of the Union, involving, as it has done, the horrors of carpet-bag government, Ku Klux outrages, and a system of pro-consular tyranny as inconsistent with the rights of these States as it has been disgraceful to the very idea of free government and fatal to the best interests of the colored race.

But the strange chaos of opinion which now prevailed was unfavorable to sound thinking or wise acting. Great and far-reaching interests were at stake, but they were made the sport of politicians, and disposed of in the light of their supposed effect upon the ascendancy of the Republican party. Statesmanship was sacrificed to party management, and the final result was that the various territorial bills which had been introduced in both Houses, and the somewhat incongruous bills of Stevens and Ashley, were all superseded by the pa.s.sage of the "Military bill," which was vetoed by the President, but re-enacted in the face of his objections. This bill was utterly indefensible on principle. It was completely at war with the genius and spirit of democratic government. Instead of furnishing the Rebel districts with civil governments, and providing for a military force adequate to sustain them, it abolished civil government entirely, and installed the army in its place. It was a confession of Congressional incompetence to deal with a problem which Congress alone had the right to solve. Its provisions perfectly exposed it to all the objections which could be urged to the plan of territorial reconstruction, while they inaugurated a centralized military despotism in the place of that system of well-understood local self- government which the territorial policy offered as a preparation for restoration. The measure was a.n.a.lyzed and exposed with great ability by Henry J. Raymond, whose arguments were unanswered and unanswerable; but nothing could stay the prevailing impatience of Congress for speedy legislation looking to the early return of the rebel districts to their places in the Union. The bill was a legislative solecism. It did not abrogate the existing Rebel State governments. It left the ballot in the hands of white Rebels, and did not confer it upon the black loyalists. It sought to conciliate the power it was endeavoring to coerce. It provided for negro suffrage as one of the fundamental conditions on which the rebellious States should be restored to their places in the Union, but left the negro to the mercy of their black codes, pending the decision of the question of their acceptance of the proposed conditions of restoration. The freedmen were completely in the power of their old masters, so long as the latter might refuse the terms of reconstruction that were offered; and they had the option to refuse them entirely, if they saw fit to prefer their own mad ascendancy and its train of disorders to compulsory restoration. This perfectly inexcusable abandonment of negro suffrage was zealously defended by a small body of conservative Republicans who were still lingering in the sunshine of executive favor, and of whom Mr. Blaine was the chief; and it was through the timely action of Mr. Sh.e.l.labarger, of Ohio, which these conservatives opposed, that the scheme of reconstruction was finally so amended as to make the Rebel State governments provisional only, and secure the ballot to the negro during the period, whether long or short, which might intervene prior to the work of re-admission. This provision was absolutely vital, because it took from the people of the insurrectionary districts every motive for refusing the acceptance of the terms proposed, and settled the work of reconstruction by this exercise of absolute power by their conquerors. It was this provision which secured the support of the Radical Republicans in Congress; but it did not meet their objections to this scheme of hasty military reconstruction, while these objections have been amply justified by time.

Thaddeus Stevens never appeared to such splendid advantage as a parliamentary leader as in this protracted debate on reconstruction.

He was then nearly seventy-six, and was physically so feeble that he could scarcely stand; but his intellectual resources seemed to be perfectly unimpaired. Eloquence, irony, wit, and invective, wre charmingly blended in the defense of his positions and his attacks upon his opponents. In dealing with the views of Bingham, Blaine, and Banks, he was by no means complimentary. He referred to them in his closing speech on the bill, on the thirteenth of February, when he said, in response to an interruption by Mr.

Blaine, "What I am speaking of is this proposed step toward universal amnesty and universal Andy-Johnsonism. If this Congress so decides, it will give me great pleasure to join in the _io triumphe_ of the gentleman from Ohio in leading this House, possibly by forbidden paths, into the sheep-fold or the goat-fold of the President." In speaking of the amendment to the bill offered by General Banks, he said, "It proposes to set up a contrivance at the mouth of the Mississippi, and by hydraulic action to control all the States that are washed by the waters of that great stream." He declared that, "The amendment of the gentleman from Maine lets in a vast number of Rebels, and shuts out n.o.body. All I ask is that when the House comes to vote upon that amendment, it shall understand that the adoption of it would be an entire surrender of those States into the hands of the Rebels. * * * If, sir, I might presume upon my age, without claiming any of the wisdom of Nestor, I would suggest to the young gentlemen around me, that the deeds of this burning crisis, of this solemn day, of this thrilling moment, will cast their shadows far into the future, and will make their impress upon the annals of our history; and that we shall appear upon the bright pages of that history just in so far as we cordially, without guile, without bickering, without small criticisms, lend our aid to promote the great cause of humanity and universal liberty."

As a precautionary measure against executive usurpation, the Fortieth Congress was organized in March, 1867, immediately after the adjournment of the Thirty-ninth. After a brief session it adjourned till the third of July to await the further progress of events.

On re-a.s.sembling I found the feeling in favor of impeachment had considerably increased, but was not yet strong enough to prevail.

All that could be done was the pa.s.sage of a supplemental act on the subject of reconstruction, which naturally provoked another veto, in which the President re-affirmed the points of his message vetoing the original bill, and arraigned the action of Congress as high-handed and despotic. The message was construed by the Republicans as an open defiance, and many of them felt that a great duty had been slighted in failing to impeach him months before.

The feeling against him became perfectly relentless, as I distinctly remember it, and shared in it myself; but on referring to the message now, I am astonished at the comparative moderation of its tone, and the strength of its positions. Its logic, in the main, is impregnable, if it be granted that the Rebel districts were not only States, but States _in the Union,_ and the Congress which was now so enraged at the President had itself refused to deal with them as Territories or outlying possessions, and thereby invited the aggravating thrusts of the message at the consistency of his a.s.sailants.

Just before the adjournment of this brief session of Congress, an amusing incident occurred in connection with the introduction of the following resolution in the House:

"_Resolved,_ That the doctrines avowed by the President of the United States, in his message to Congress of the fifteenth instant, to the effect that the abrogation of the governments of the Rebel States binds the Nation to pay the debts incurred prior to the late Rebellion, is at war with the principles of international law, a deliberate stab at the national credit, abhorrent to every sentiment of loyalty, and well-pleasing only to the vanquished traitors by whose agency alone the governments of said States were overthrown and destroyed."

The resolution was adopted by yeas one hundred, nays eighteen, and the announcement of the vote provoked the laughter of both sides of the House. It gratified the Republicans, because it was a thrust at Andrew Johnson, and perfectly accorded with their prevailing political mood, which was constantly becoming more embittered toward him. It equally gratified the Democrats, because they at once accepted it as a telling shot at Gov. Morton, who had fathered the condemned heresy nearly two years before in his famous Richmond speech, which he and his friends had been doing their best to forget. Party feeling had never before been more intense; but this resolution performed its mediatorial office with such magical effect in playing with two utterly diverse party animosities, that Republicans and Democrats were alike surprised to find themselves suddenly standing on common ground, and joyfully shaking hands in token of this remarkable display of their good fellowship.

Congress a.s.sembled again on the twenty-first of November, in consequence of the extraordinary conduct of the President. The popular feeling in favor of impeachment had now become formidable, and on the twenty-fifth the Judiciary Committee of the House finally reported in favor of the measure. The galleries were packed, and the scene was one of great interest, while all the indications seemed to point to success; but on the seventh of December, the proposition was voted down by yeas fifty-seven, nays one hundred and eight. The vote was a great surprise and disappointment to the friends of impeachment, and was construed by them as a wanton surrender by Congress, and the prelude to new acts of executive lawlessness. These acts continued to be multiplied, and the removal of Secretary Stanton finally so prepared the way that on the twenty- fourth of February, 1868, the House, by a vote of one hundred and twenty-six to forty-seven, declared in favor of impeachment. The crowds in the galleries, in the lobbies, and on the floor were unprecedented, and the excitement at high tide. The fifty-seven who had voted for impeachment in December, were now happy. They felt, at last, that the country was safe. The whole land seemed to be electrified, as they believed it would have been at any previous time if the House had had the nerve to go forward; and they rejoiced that the madness of Johnson had at last compelled Congress to face the great duty. A committee of seven was appointed by the Speaker to prepare articles of impeachment, of whom Thaddeus Stevens was chairman. He was now rapidly failling in strength, and every morning had to be carried up stairs to his seat in the House; but his humor never failed him, and on one of these occasions he said to the young men who had him in charge, "I wonder, boys, who will carry me when you are dead and gone." He was very thin, pale and haggard. His eye was bright, but his face was "scarred by the crooked autograph of pain." He was a constant sufferer, and during the session of the Committee kept himself stimulated by sipping a little wine or brandy; but he was its ruling spirit, and greatly speeded its work by the clearness of his perceptions and the strength of his will. His mental force seemed to defy the power of disease.

The articles of impeachment were ready for submission in a few days, and adopted by the House, on the second of March, by a majority of considerably more than two thirds, when the case was transferred to the Senate.

The popular feeling against the President was now rapidly nearing its climax and becoming a sort of frenzy. Andrew Johnson was no longer merely a "wrong-headed and obstinate man," but a "genius in depravity," whose h.o.a.rded malignity and pa.s.sion were unfathomable.

He was not simply "an irresolute mule," as General Schenck had styled him, but was devil-bent upon the ruin of his country; and his trial connected itself with all the memories of the war, and involved the Nation in a new and final struggle for its life. Even so sober and unimaginative a man as Mr. Boutwell, one of the managers of the impeachment in the Senate, lost his wits and completely surrendered himself to the pa.s.sions of the hour in the following pa.s.sage of his speech in that body:

"Travelers and astronomers inform us that in the Southern heavens, near the Southern Cross, there is a vast s.p.a.ce which the uneducated call the 'hole in the sky,' where the eye of man, with the aid of the powers of the telescope, has been unable to discover nebulae, or asteroid, or comet, or plant, or star or sun. In that dreary, cold, dark region of s.p.a.ce, which is only known to be less than infinite by the evidences of creation elsewhere, the great Author of celestial mechanism has left the chaos which was in the beginning.

If this earth were capable of the sentiments and emotions of justice and virtue, which in human mortal beings are the evidences and the pledge of our divine origin and immortal destiny, it would heave and throe with the energy of the elemental forces of nature, and project this enemy of two races of men into that vast region, there forever to exist, in a solitude as eternal as life, or as the absence of life, emblematical of, if not really, that 'outer darkness' of which the Savior of man spoke in warning to those who are the enemies of themselves, of their race, and of their G.o.d."

This fearful discharge of rhetorical fireworks at the President fitly voiced the general sentiment of the Republicans. Party madness was in the air, and quite naturally gave birth to the "hole in the sky" in the agony of its effort to find expression. No extravagance of speech or explosion of wrath was deemed out of order during this strange dispensation in our politics.

The trial proceeded with unabated interest, and on the afternoon of the eleventh of May the excitement reached its highest point.

Reports came from the Senate, then in secret session, that Grimes, Fessenden and Henderson were certainly for acquittal, and that other senators were to follow them. An indescribable gloom now prevailed among the friends of impeachment, which increased during the afternoon, and at night when the Senate was again in session.

At the adjournment there was some hope of conviction, but it was generally considered very doubtful. On meeting my old anti-slavery friend, Dr. Brisbane, he told me he felt as if he were sitting up with a sick friend who was expected to die. His face was the picture of despair. To such men it seemed that all the trials of the war were merged in this grand issue, and that it involved the existence of Free Government on this continent. The final vote was postponed till the sixteenth, owing to Senator Howard's illness, and on the morning of that day the friends of impeachment felt more confident. The vote was first taken on the eleventh article. The galleries were packed, and an indescribable anxiety was written on every face. Some of the members of the House near me grew pale and sick under the burden of suspense. Such stillness prevailed that the breathing in the galleries could be heard at the announcement of each senator's vote. This was quite noticeable when any of the doubtful senators voted, the people holding their breath as the words "guilty" or "not guilty" were p.r.o.nounced, and then giving it simultaneous vent. Every heart throbbed more anxiously as the name of Senator Fowler was reached, and the Chief Justice propounded to him the prescribed question: "How say you, is the respondent, Andrew Johnson, President of the United States, guilty or not guilty of a high misdemeanor, as charged in this article of impeachment?"

The senator, in evident excitement, inadvertently answered "guilty,"

and thus lent a momentary relief to the friends of impeachment; but this was immediately dissipated by correcting his vote on the statement of the Chief Justice that he did not understand the senator's response to the question. Nearly all hope of conviction fled when Senator Ross, of Kansas, voted "not guilty," and a long breathing of disappointment and despair followed the like vote of Van Winkle, which settled the case in favor of the President.

It is impossible now to realize how perfectly overmastering was the excitement of these days. The exercise of calm judgment was simply out of the question. As I have already stated, pa.s.sion ruled the hour, and constantly strengthened the tendency to one- sidedness and exaggeration. The attempt to impeach the President was undoubtedly inspired, mainly, by patriotic motives; but the spirit of intolerance among Republicans toward those who differed with them in opinion set all moderation and common sense at defiance.

Patriotism and party animosity were so inextricably mingled and confounded that the real merits of the controversy could only be seen after the heat and turmoil of the strife had pa.s.sed away.

Time has made this manifest. Andrew Johnson was not the Devil- incarnate he was then painted, nor did he monopolize, entirely, the "wrong-headedness" of the times. No one will now dispute that the popular estimate of his character did him very great injustice.

It is equally certain that great injustice was done to Trumbull, Fessenden, Grimes and other senators who voted to acquit the President, and gave proof of their honesty and independence by facing the wrath and scorn of the party with which they had so long been identified. The idea of making the question of impeachment a matter of party discipline was utterly indefensible and preposterous.

"Those senators," as Horace Greeley declared, "were sublimely in the right who maintained their independent judgment--whether it was correct or erroneous, in a matter of this kind, and who indignantly refused all attempts to swerve them from their duty as they had undertaken to perform it by solemn oaths." The Chief Justice was also cruelly and inexcusably wronged by imputing corrupt motives to his official action. His integrity and courage had been amply demonstrated through many long years of thorough and severe trial; and yet many of his Republican friends, both in the Senate and House, who had known him throughout his political career, denounced him as an apostate and a traitor, and even denied him all social recognition. Senator Howe, of Wisconsin, was especially abusive, and made himself perfectly ridiculous by the extravagance and malignity of his a.s.saults. The judicial spirit was everywhere wanting, and the elevation of Senator Wade to the Presidency in the midst of so much pa.s.sion and tumult, and with the peculiar political surroundings which the event foreshadowed, would have been, to say the least, a very questionable experiment for the country.

The excitement attending the trial of the President soon subsided, but the Republicans continued anxious about the state of the country.