"III. It is desirable that the military power conferred by the before-mentioned act be exercised only so far as may be necessary to accomplish the objects for which that power was conferred, and the undersigned appeals to the people of Virginia, and especially to magistrates and other civil officers, to render the necessity for the exercise of this power as slight as possible, by strict obedience to the laws, and by impartial administration of justice to all cla.s.ses... ."

On April 20 was issued "General Orders, No. 16":

"I. Temporary appointments to fill vacancies which may occur in county or city offices will, in general, be made upon the concurrent recommendations of the County Court or City Council and of the President of the Board of Registration ( 1) for the county or city.

"II. The several County Courts and City Councils are requested to confer with the Presidents of the Boards of Registration concerning such appointments, and to agree upon a suitable person to fill any vacancy that may occur.

"III. The President of the Board of Registration will forward to the a.s.sistant adjutant-general the recommendation of the court or council, with his own indors.e.m.e.nt thereon.

"IV. When a County Court is not in session, a recommendation signed by five justices, including the presiding justice, will be received in lieu of the recommendation of the court.

"V. County and corporation officers appointed by the commanding general will be required to give the bonds required by law, and will be subject to indictment for malfeasance, misfeasance, or neglect of official duty, the same as if they had been elected by the people."

On May 28 was issued "General Orders, No. 31," in part as follows;

"... IV. The military commissioners [officers of the army] will make a prompt report to these headquarters of each case of which they may take jurisdiction, and the disposition made of such case. Where parties are held for trial, either in confinement or under bail, such full statement will be made of the facts in each case as will enable the commanding general to decide whether the case shall be tried by a military commission or be brought before a civil court.

"V. Trial by the civil court will be preferred in all cases where there is satisfactory reason to believe that justice will be done. But until the orders of the commanding general are made known in any case, the paramount jurisdiction a.s.sumed by the military commissioner will be exclusive.

"VI. All persons, civil officers and others, are required to obey and execute the lawful orders of the military commissioners to the same extent as they are required by law to obey and execute writs issued by civil magistrates. Any person who shall disobey or resist the lawful orders or authority of a military commissioner shall be tried by a military commission, and upon conviction shall be punished by fine and imprisonment according to the nature and degree of the offense... .

"VII. This order will not be construed to excuse civil officers, in any degree, from the faithful discharge of their duties. It is intended to aid the civil authorities, and not to supersede them, except in cases of necessity."

NO RESORT TO TRIAL BY MILITARY COMMISSION

No case arose in Virginia in which it was found necessary, in my opinion, to supersede the civil authorities in the administration of justice. Not a single citizen of that State was tried by military commission. Yet some cases arose which well ill.u.s.trate the fascinations of absolute power to those who desire the benefit of its exercise in its own interests. Some of the most prominent citizens of Virginia, men who had earnestly opposed the general policy of military government then in force, came to me to settle their petty differences summarily. They seemed much disappointed when I declined to adjudicate such cases, and informed them that they must be content with the slow process of trial before their own civil magistrates. Other orders were in part as follows:

"Richmond, Va., July 26, 1867. "... III. The governor and other executive officers, the courts of law, and councils of cities are invited to recommend suitable persons for appointment to such offices as, under the existing laws of Virginia, are usually filled by their appointment or upon their nomination... ."

"Richmond, Va., August 8, 1867. "... VI. Military commissioners are reminded that they are to be 'governed in the discharge of their duties by the laws of Virginia, so far as the same are not in conflict with the laws of the United States, or orders issued from these headquarters,' and that they are not to supersede the civil authorities, except in cases of necessity. In such cases the action, or failure to act, of the civil officers should be fully reported, in order that the commanding general may hold them to a proper accountability for any neglect of duty... ."

THE OBNOXIOUS CONSt.i.tUTION

Upon the adjournment of the State Convention, I sent the following letter to General Grant:

"Richmond, Va., April 18, 1868. "Dear General: In spite of every effort that could be made to prevent it, the Virginia Convention has adhered to its proscriptive measures, or rather to the most objectionable of them.

"After every other means had failed, I even went so far as to visit the Convention, and urge the repeal of the test oath. But what I said seemed not to have the slightest influence. I inclose a newspaper report, which is a pretty accurate one, of what I said, and which will show that I have at least done my duty in that regard, if not more.

"The same baneful influence that secured the election of a majority of ignorant blacks, and equally ignorant or unprincipled whites, to the Convention, has proved sufficient to hold them firmly to their original purpose. They could only hope to obtain office by disqualifying everybody in the State who is capable of discharging official duties, and all else to them was of comparatively slight influence. Even the question whether their Const.i.tution will be ratified or rejected, the treat with indifference. Congress, they say, will make it right anyway... .

"Of course I may be mistaken, but my opinion is that the Const.i.tution must be adopted. This would not be a serious matter if it (the Const.i.tution) were a good one, and good officers could be elected under it. But it seems hardly possible that the Union party can organize upon a satisfactory basis for the election. The negroes and their a.s.sociates will doubtless insist upon unqualified indors.e.m.e.nt of the Const.i.tution by their nominees. This the respectable whites will not give. Hence the late Convention will be reproduced in the legislature, a large majority being either worthless radicals, white and black, or bitter opponents of reconstruction upon the congressional plan. The danger is that we will have on our hands, not only one big elephant in the Const.i.tution, but a host of little ones in the shape of officers-elect who are not fit to be installed-a prospect not very encouraging, at least.

"My impression is that the wisest course would be to let the thing fall and die where it is-not submit it to the people at all. We can then go on putting Union men in office and reorganizing the provisional government upon a loyal basis, until the friends of reconstruction get control of the State. Then a convention can be called which will frame a Const.i.tution fit to be ratified by the people of the State and approved by Congress and the country at large.

"If Congress would give a little more lat.i.tude in the selection of officers, by modifying the test oath, there would be no difficulty in filling all the offices in the State with men who would aid restoration. Without some such change, the work of reorganization cannot be carried very far. The view of the question which I have given above is, of course, the local one; but it seems to me the national one leads to the same conclusion. I can't see how the indors.e.m.e.nt of such a Const.i.tution as this one, by the Republican party, can be otherwise than damaging to them in the North. Would it not be wise for Congress to say at once, We reject, once and for all, proscriptive const.i.tutions?

"I have written this letter merely to suggest points that occur to me as worthy of very careful consideration. I suppose Congress alone can determine what is to be done.

"As explained in my official letter to-day, I feel bound to await the action of Congress before ordering an election. The nominating conventions of the two parties meet in Richmond on the 6th and 7th of May. Perhaps it may be best for Congress to await their action before determining the question... . "

The newspaper clipping inclosed in the above letter to General Grant was a report of the proceedings of the Convention which appeared in the "Richmond Dispatch" of April 18, 1868. Several other letters to General Grant, near the same time, explained the situation in detail.

As was to be expected, and in spite of any influence which the military commander could properly exert, that proposed Const.i.tution, like those framed in the other States, perpetuated the worst features of the acts of Congress. It disqualified all the respectable whites from any active part in the government, leaving the negroes and "carpet-baggers" full sway. So sweeping was this disqualification that in many parts of the State not a native Virginian, white or black, could be found who could read or write, and who would be eligible for election or appointment to any office. In my great anxiety to save the State from so great an evil, I went to the hall of the Convention and explained the impossibility of organizing a government under such a Const.i.tution, and besought the Convention to strike out the disqualifying clause. I was listened to with cold respect, my advice was disregarded, and promptly after my departure the Const.i.tution was finally adopted, and the Convention adjourned sine die.

But the State was, nevertheless, saved from the impending disaster. The act of Congress required that the Const.i.tution be submitted to the people for ratification or rejection; but Congress had failed to appropriate money to pay the expenses of an election. If an election was to be held, the money must be taken from the treasury of the State, by the order of the district commander, or else Congress must make a special appropriation for that purpose. I declined to sanction the use of the people's money for any such purpose, refused to order an election for ratification or rejection of the obnoxious Const.i.tution, and referred the matter to Congress, with a recommendation that the people be authorized to vote separately on the disqualifying clause-a privilege which the Convention had denied.

HOW ITS WORST FEATURE WAS NULLIFIED

The radicals in Congress were so glad, apparently, of this mode of escape from a result so obnoxious to the better sense of the Union people at that time, that not a voice was raised in favor of the "carpet-bag" Const.i.tution or in disapprobation of my action in regard to it. The instrument was permitted to rest quietly in the pigeonhole of the district commander's desk until the next year. Then an act was pa.s.sed providing for submitting that Const.i.tution to the people of Virginia, with the privilege of voting separately on the disfranchising clause, which clause they, of course, rejected. Thus Virginia was saved from the vile government and spoilation which cursed the other Southern States, and which the same radical Congress and its successors sustained until the decent public sentiment of the North would endure them no longer.

It is, perhaps, not too much to say that if the other district commanders had in like manner refused to make themselves parties to the spoilation of the people placed under their charge, Congress would have shrunk from the direct act of imposing upon them such obnoxious governments, and the country might have been saved the disgrace of the eight years of carpet-bag rule in the South. At least it is certain that a large proportion of the more moderate among the Republican majority in Congress at that time indulged the hope that respectable governments might be organized under the acts of Congress. But they made this difficult, if not impossible, when they gave their a.s.sent to the amendment of those acts, prepared by the extremest radicals, depriving the Southern whites of any active part in the organization of their governments. Impartial justice, as expressed in "impartial suffrage," might have led to tolerable results even in those States where the blacks were in the majority. But under a law which gave universal suffrage to the blacks and disfranchised the influential whites, any tolerable result was impossible unless under the administration of a man who had the independence and courage to disarm such a law of its poisonous sting. However this may be, it is certain that Virginia owes its escape from the sad fate of her sister States to the action of her district commander, who has abundant reason for the belief that the good people of that State fully appreciated the fact.

APPOINTED SECRETARY OF WAR

With this service to the people of Virginia, my duty in that State practically terminated. The impeachment trial of President Johnson had reached its crisis. It had become evident to those who were wise enough to discern the "signs of the times" that the Senate would probably not sustain the articles of impeachment by the necessary two-thirds majority. This would leave unsettled the quarrel between the President and Congress over the War Department, and that on the eve of an exciting Presidential election, in which several of the newly reconstructed States were expected to take part. In not one of these States was the new government able to stand alone or to preserve the peace within its borders. A firm and impartial administration of the War Department in the sole interest of peace and order during the coming contest was the one indispensable want of the country. Without that, a revival of civil strife seemed inevitable. Under these circ.u.mstances, I was urged to accept the office of Secretary of War, with the a.s.surance that in this way the contest which endangered the peace of the country could be adjusted. I gave my consent, the nomination was promptly sent to the Senate, and that body, in spite of its very large majority in opposition to the President, confirmed the appointment with almost entire unanimity. The impeachment was dismissed, and that dangerous farce, which had come within one or two votes of inflicting lasting disgrace upon the country, happily came to an end.

Upon the inauguration of the newly elected President in March, 1869, I laid down the war portfolio without having incurred censure from either party for any of my official acts, and with the approbation of all for impartial discharge of duty. But, apparently lest such a thing might possibly happen again, Congress made haste to pa.s.s a law prohibiting any army officer from thereafter holding any civil office whatever! In 1895 that law was so modified as not to apply to officers on the retired list! It is a singular coincidence that I had just then been retired.

[( 1) The presidents of Boards of Registration were army officers detailed by me for that duty.]

CHAPTER XXII Differences Between the Commanding General of the Army and the War Department-General Grant's Special Powers-His Appointment as Secretary of War Ad interim-The Impeachment of President Johnson -Memorandum of Interviews with William M. Evarts and General Grant in Regard to the Secretaryship of War-Failure of the Impeachment Trial-Harmony in the War Department-A New Policy at Army Headquarters.

During nearly the entire history of the government of the United States the relations between the general-in-chief, or nominal commanding general of the army, and the War Department have been the cause of discord, sometimes descending to bitter personal controversy, and in a few instances leading to very serious results.

The differences between General Scott and the Secretary became so serious that the general removed his headquarters from Washington to New York, and remained away from the capital several years, until the time when civil war was imminent. General Sherman also found it necessary to escape from an intolerable situation by removing to St. Louis, and did not return to Washington until the condition of the War Department led to the impeachment of the Secretary of War. During their long absence from the capital neither of these generals could exercise any appreciable influence over either the administration or the command of the army. It is thought to be worthy of note that during one of these periods of absence of the general-in-chief the military resources of the country were mostly placed within easy reach of those about to engage in an effort to break up the Union, and that during the other period corruption in the War Department led to impeachment. It is no reflection upon the many eminent, patriotic citizens who have held the war portfolio to say that the very few men who have proved unworthy of that great trust would have been much less likely to do serious harm to the public interests if they had been under the watchful eye of a jealous old soldier, like Scott or Sherman, who was not afraid of them.

THE COMMANDING GENERAL AND THE WAR DEPARTMENT

As hereafter explained, the controversy between General Grant and the Secretary of War was the primary cause which finally led to the impeachment of the President of the United States. The cause of this trouble has seemed to be inherent in the form and character of the government. An essential provision of the Const.i.tution makes the President commander-in-chief of the army and navy. It is manifestly indispensable that the executive head of a government be clothed with this authority. Yet the President is not, as a rule, a man of military education or experience. The exigencies of party politics also seem to require, in general, that the Secretary of War be a party politician, equally lacking with the President in qualifications for military command.

The art of war has in all ages called forth the highest order of genius and character, the great captains of the world having been esteemed as among the greatest men. So, also, and in continually increasing degree in modern times, the military art has called for scientific education of the very highest character, supplemented by practical experience. It cannot be questioned that the military profession requires ability, education, and practical training no less than the legal or any other profession. A Supreme Court of the United States composed of merchants and bankers would be no more of an anomaly than a body of general and staff officers of like composition. The general policy of our government seems to be based upon a recognition of this self-evident principle. We have a national military academy and other military schools inferior to none in the world, and well-organized staff departments which are thoroughly efficient in war as well as in peace. The laws also provide a due proportion of subordinate general officers for the command of geographical departments in time of peace, or of divisions and brigades in the field in time of war. But no provision is made for an actual military commander of the entire army either in peace or in war. During only a single year since the adoption of the Const.i.tution of the United States has this not been the fact. In pursuance of a special act of Congress and the orders of President Lincoln, General Grant in fact commanded "all the armies of the United States" during the last year of the Civil War; but at no other time has there been an actual military commander of the army or armies whose authority as such was recognized by the War Department.

Why, it may be asked, this strange departure from the recognized rule of organization in all governmental and business affairs? Why provide educated and trained experts for all subordinate positions, and none for the head or chief, vastly the most important of all?

In the first place, it is important to observe that the matter rests absolutely in the hands of the President. Congress has no power in the matter. To create by law a military head for the army would be a violation of the essential provision of the Const.i.tution which makes the President commander-in-chief.

GENERAL GRANT'S SPECIAL POWERS

In the case of General Grant, Congress fully recognized this fact, saying: "Under the direction and during the pleasure of the President" he "may" command the armies of the United States. Even this, if intended as conveying authority to the President, was superfluous, and if intended as more than that would have been unconst.i.tutional. In fact, it was only a suggestion, intended to be entirely within the limits of const.i.tutional propriety, of what was the general opinion of the people and of Congress, that after three years of failure the President ought to select a soldier and put him in actual command of all the armies. The President then went far beyond the suggestion of Congress, and even to the extreme limit of military abdication. He not only gave General Grant absolute, independent command, placing at his disposal all the military resources of the country, but he even denied to himself any knowledge whatever of the general's plans. In this patriotic act of extreme self-abnegation President Lincoln undoubtedly acted in exact accord with what he believed to be the expressed popular opinion, and probably in accord with his own judgment and inclination; for no one could have been more painfully aware than he had by that time become of the absolute necessity of having a military man actually in control of all the armies, or more desirous than he of relief from a responsibility to which he and his advisers had proved so unequal. But it must be admitted that in this President Lincoln went beyond the limit fixed by his const.i.tutional obligation as commander-in-chief. He would have more exactly fulfilled that obligation if he had endeavored faithfully to comprehend and adopt as his own all the plans proposed by his chosen and trusted general-in-chief, guarding the latter against all possible interference, theretofore so pernicious, from the War Department or any other source. By such means the President could have actually exercised the chief command imposed upon him by the Const.i.tution, sharing in due measure with his chief military officer the responsibilities imposed by their high offices. In no other way, it is believed, can the duties imposed upon a const.i.tutional commander-in-chief who is not possessed of military education and experience be fully and conscientiously performed. Indeed, such is the method pursued by great military sovereigns all over the world, except in a few instances where the monarch believes himself, either truly or falsely, superior in military ability to his chief of staff. It is only in this country, where the chief of state has generally no military training, and his war minister the same, that a chief of staff of the army is supposed to be unnecessary. While it is easy to understand the reasons which led to the action of the government in the spring of 1864, it is much less easy to understand why some reasonable approximation to that course, as above suggested, and in accord with the practice of all military nations, has never been adopted as a permanent system in this country. Perhaps it may be like the case of that citizen of Arkansas who did not mend the roof of his house when it was not raining because it did not then need mending. But it would seem the part of wisdom to perfect the military system so far as practicable in time of peace rather then continue a fruitless controversy over the exact location of an undefined and undefinable line supposed to separate the military administration from the command in the army, or the functions of the Secretary of War from those of the commanding general. The experience of many years has shown that the Secretary was sure to get on both sides of that line, no matter where it was drawn. But it is encouraging to note that some experiments made in more recent years, in the direction of the generally recognized sound military system, have not proved by any means unsatisfactory.

GENERAL GRANT'S SPECIAL POWERS

This chronic controversy between the military administration and the command once gave rise to one of the most dangerous crises in American history. The facts in respect to the origin of that crisis soon became obscured by other events, and have never been correctly published.

The a.s.sa.s.sination of President Lincoln occurred a very short time before the end of the Civil War. It appears that his successor in the Presidential office did not withdraw any part of the supreme authority which had been conferred upon General Grant by President Lincoln a year before. Nevertheless, Secretary Stanton, who had very reluctantly yielded to President Lincoln's order, began, soon after the end of hostile operations, to resume the exercise of those functions which had formerly been claimed as belonging to the War Department, and which had been suspended by President Lincoln. Stanton "boldly took command of the armies."( 1) By this General Grant was deeply offended, and finally declared that the action of the Secretary of War was intolerable; although he refers to it in his "Memoirs" as "another little spat." The authority which Stanton a.s.sumed was the const.i.tutional authority of the commander-in-chief of the army, a large part of which authority had been delegated by the President to General Grant, not to Secretary Stanton. Hence the Secretary's a.s.sumption was offensive alike to the general and to the President. General Grant acted with great forbearance, and endeavored to obtain from Secretary Stanton due recognition of his rightful authority as general commanding the army, but with no permanent effect.( 2)

General Grant opposed the removal of Mr. Stanton by the exercise of the President's prerogative alone, for the reason, with others, that such action would be in violation of the Tenure-of-Office Act.( 3) He also objected at first to either removal or suspension, mainly for fear that an objectionable appointment might be made in Stanton's place.( 4) But those two objections being removed by Johnson's tender of the appointment to Grant himself, vice Stanton suspended instead of removed, General Grant gave his full countenance and support to President Johnson in the suspension of Mr. Stanton, with a view on the part of the President to his ultimate removal, either with the concurrence of the Senate or through a judicial decision that the Tenure-of-Office Act was, as Johnson claimed, unconst.i.tutional.( 5)