military operations issued by the President or Secretary of War should be issued through him; that he should not be removed or assigned to duty elsewhere, except at his own request with the previous approval of the Senate; that any orders relating to military operations issued by the President or Secretary of War, otherwise than through him, should be null and void; that any officer who issued such orders should be deemed guilty of a misdemeanor in office; and that any officer of the army who knowingly transmitted or obeyed such orders should be liable to imprisonment upon conviction in any court of competent jurisdiction. This practically made General Grant commander-in-chief, and reduced the powers of the President in this respect to the level of those of the British queen. Another section in the same bill directed that the militia then organized in the excluded States should be disbanded, and that no further militia be organized in them until further authorized by Congress. The President signed the bill, March 2d, 1867, but sent this protest in a message to the House:

"These provisions are contained in the second section, which in certain cases virtually deprives the President of his constitutional functions as commander-in-chief of the army, and in the sixth section, which denies to ten States of the Union their constitutional right to protect themselves, in any emergency, by means of their own militia. These provisions are out of place in an appropriation act. I am compelled to defeat these necessary appropriations if I withhold my signature from the act." 95

At the same time, the power of the Executive to control his subordinates was restrained by the Tenure of Office bill, which made the consent of the Senate necessary to the removal of all officers to whose appointment their consent was required, except members of the cabinet in certain cases.96 This bill was vetoed by the President as unconstitutional, but passed again over his An alleged violation of it was the main ground of the articles of impeachment subsequently presented against him.97

veto.

94 14 St. at L., 486, 487. Both these sections were subsequently repealed. 95 McPherson, History of the Reconstruction, p. 178. The constitu

tionality of this act will be considered subsequently.

96 14 St. at L., 430.

97 The constitutionality of this act will be considered subsequently.

Meanwhile, proceedings had been instituted at this time to investigate the conduct of the President to see if he had committed any impeachable offense; more, however, with the object by the majority of intimidating him than with the intention of an actual impeachment,98 which was not seriously contemplated till after his attempt to remove Stanton from the Department of War in the following summer. To guard against the danger of his filling the Supreme Court with men who construed the Constitution in the same manner as his advisers, an act had been passed in the previous July which forbade any more appointments to that bench until after three vacancies had occurred.99

The working majority in both Houses of Congress was further strengthened by the admission of the State of Nebraska, over a veto, February 8th, 1867.100 The veto of the bill for the admission of Colorado was not overridden.101 A bill granting the right of suffrage to negroes in the District of Columbia was likewise vetoed, and then passed by the requisite two-thirds of each House.102

In March, 1867, the majority had sufficient strength to pass two reconstruction acts over the veto of the President, who claimed that they were unconstitutional. The title and preamble of the first was:

"An Act to provide for the more efficient government of the rebel States. Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established: Therefore, Be it enacted," "That said rebel States shall be divided into military districts and made subject to the military authority of the United States, as hereinafter prescribed."

The President was instructed to assign to the command of each district an officer of the army not below the rank of Brigadier-General,

and to detail a sufficient military force to enable him to perform his duties and enforce his authority. It was the duty of the officer to preserve order and to punish

"all disturbers of the public peace and criminals, and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose; and all interference under color of State authority with the exercise of military authority under this act shall be null and void.”

The approval by the officer in command of any sentence of the military commission or other tribunal affecting the life or liberty of any person, was required before its execution, and the approval of the President was required before the execution of any sentence of death. It was provided:

"That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as Article Fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and Senators and Representatives shall be admitted therefrom on their taking the oaths prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State: Provided, That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any such person vote for members of such

convention." "That until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under any such provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment." 103

The Fortieth Congress immediately passed over Johnson's veto a supplementary reconstruction act with specific provisions for the registration in accordance with the former act and for the language of a test-oath then to be administered. This act further provided that the State conventions should have the power to provide for taxation to pay their expenses.104 A second supplement was passed over the President's veto, which declared that it had been the true intent and meaning of the former reconstruction acts that the governments then existing in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas, were not legal State governments; and that thereafter said governments, if continued, were to be continued subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress." Power was given to each district commander, subject to the disapproval of the general of the army, to remove any officer or person holding any civil or military office in such district under any power granted by any so-called State or municipal government. The acts of officers of the army in previously removing such officers were confirmed. It was made the duty of the district commanders to remove from office all persons disloyal to the government of the United States, or who used their official influence in any manner to hinder, delay, prevent or obstruct the due and proper administration of the reconstruction acts; and finally it directed that "No district commander or member of the Board of Registration, or any of the

108 Act of March 2, 1867, 14 St. at L., 428.

104 Act of March 23, 1867, 15 St. at L., 2.

officers or appointees acting under them, shall be bound in his action by the opinion of any civil officer of the United States." 105

This last provision was intended to weaken the authority of the Attorney-General, who, in his previous opinions,106 had criticized the action of some of the district commanders and had limited the construction of the acts in favor of constitutional rights and civil liberty. In Johnson's veto he argued that this forbade them to even follow a judicial decision when in conflict with a military order. "These military appointees would not be bound even by a judicial opinion. They might very well say, even when their action is in conflict with the Supreme Court of the United States, that court is composed of civil officers of the United States, and we are not bound to conform our action to any opinion of any such authority."" 107 By these acts the late Confederate States, with the exception of Tennessee, were not only excluded from representation in Congress, but absolutely denied civil government and placed under military rule of the most despotic character until they had, in addition to the ratification of the Fourteenth Amendment, extended the right of suffrage to the colored race; and the army was used to compel immediate action to that effect. After their enactment over his veto, Johnson executed the statutes with fidelity, although he believed that they were unconstitutional. Under them the Southern States were treated as conquered provinces, and twelve millions of people were ruled by military satraps, who interfered with and overruled in the most arbitrary manner the acts of the State executives, legislatures and judiciary, as well as of those who had formerly exercised the right of suffrage there.

State governors, 108 State

105 15 St. at L., 14.

106 12 Op. A. G., 186, 193; quoted infra, note 112.

107 Johnson's veto of the Second Supplement to the Reconstruction Act, July 19, 1867.

108 In Mississippi, June 15th, 1868 (Davis, Rise and Fall of the Confederate Government, vol. ii, p. 754). In Virginia, March, 27, 1869 (McPherson, History of the Reconstruction, p. 425).

In Louisiana, June 3, 1867 (Davis, Rise and Fall of the Confederate Government, vol. ii, p. 756). In Texas, July 30, 1867 (McPherson, History of the Reconstruction, p. 323).

109 In South Carolina, in September, 1867 (Davis, Rise and Fall of the Confederate Government, vol. ii, p. 744). In Louisiana, March 27, 1867 (McPherson, History of the Reconstruction, p. 206). In Virginia also, (Cox, Three