The 1879 “Government Shutdown,” Part I

Mark Twain never said, “History does not repeat itself, but it does rhyme.” He did observe, however: “It is not worthwhile to try to keep history from repeating itself, for man’s character will always make the preventing of the repetitions impossible.” This is nowhere more true than in politics, and it is certainly as apt today as it was when Twain wrote it in 1907.

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Mark Twain, American humorist, author, and social critic.  (PBS)

In recent years, Americans have become accustomed to threats of a “government shutdown” at the hands of one party in the Congress, opposed to the programs and policies of the President of the opposite party. One side cries, “Politics!” The other side counters, “Principle!”  But when threatening to defund the government in order to change public policy was first attempted in 1879, the cry was “Revolution!” Politics and principle, principle and politics vied with one another in minds, and hearts, and maneuvers, of all parties involved.

Some background is in order. Between 1865 and 1870, the years immediately following the Civil War, the 13th, 14th, and 15th amendments to the Constitution were adopted. These were the first amendments to the Constitution to be passed in sixty years. The amendments abolished slavery in the United States, conferred citizenship to the newly freed people, and granted black males the right to vote. With these amendments came modern conceptions of civil rights and voting rights.

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The 13th Amendment to the U.S. Constitution abolished slavery.  The next two amendments granted citizenship to African Americans and gave Black men the right to vote.  These are collectively known as the “Reconstruction Amendments.”  (Library of Congress)

Through several legislative measures in the late 1860s and 1870s, blacks gained property rights and equal protection under the law. Mechanisms to ensure that blacks could vote in free and fair elections were established, supported by the U.S. Army and federal courts.

At the same time, many white southerners were disfranchised. Immediately after the Civil War, former political and military leaders of the Confederacy were barred from holding political office. Many white southerners felt that they were at the mercy of Republican Carpetbaggers from the North, the Union Army, and the newly freed blacks, who for the first time exercised political power in state legislatures and in the U.S. Congress.

The once-dominant southern Democrats were determined to regain their political and social dominance in the former Confederacy. For more than a decade they used intimidation, physical violence, and even murder to keep blacks and southern Republicans from the polls.

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White southerners did everything possible–including murder–to keep African Americans from the polls after the Civil War.  Efforts to suppress the black vote and resurrect white supremacy also led to the creation of hate groups like the Ku Klux Klan.  (Newberry Library)

Federally appointed civilian officers were employed to monitor the fairness of elections. When violence broke out, the U.S. Army was brought into maintain peace and an orderly election process.

Fearing “negro domination,” white southern Democrats invoked states’ rights. Republicans sought to preserve the rights of the freedmen as a matter of justice, and also as a means to expand the influence of their party in the South. These constant tensions were at the heart of the controversy in 1879.

In early 1879, in the waning days of the second session of the 45th Congress, the House’s Democratic majority attached riders to funding bills to prohibit the use of federally appointed marshals to oversee elections, and to prevent the Army from having any role in protecting voters at polling places. The Republican Senate would not agree to these measures. As a result, Congress failed to pass $45,000,000 in appropriations for the Federal government for the fiscal year beginning on July 1.

This impasse caused President Hayes to call the 46th Congress into special session on March 18. The new Congress presented a problem for the Republican president. Both the Senate and the House were now controlled by the Democrats (for the first time since 1859). This spelled trouble for Hayes and his chief lieutenant in the House of Representatives, James Garfield.

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Congressman James A. Garfield worked closely with President Hayes.  (Library of Congress)

Toward the end of April, the 46th Congress passed an Army Appropriations bill with a rider identical to the one that passed at the end of the 45th Congress. Once again, the Democrats aimed at preventing federal marshals to oversee elections. Once again, the Army would be prohibited from keeping peace at the polls during congressional and presidential elections.

From the Democrats’ point of view, it was time to end Republican and federal government interference in elections in southern states. They invoked the constitutional principle of states’ rights while they sought to insure the dominance of white men in the politics of their states. They were also looking to the 1880 presidential contest, hoping to be able to intimidate or discourage enough black voters to elect a Democrat president for the first time since 1856.

Using the appropriations authority vested in the House of Representatives, the Democratic majority was trying to force the hand of the Republican president – to sign the appropriation with the objectionable rider – or to defund the government. Senate Democrats were in full accord with their House colleagues.

President Hayes and Congressman Garfield understood both the constitutional argument being made by the Democrats and the political advantage they sought. Even before the final bill was passed, Hayes wrote in his diary, “The appropriation bill is essential to the continuance of the Government… It is the duty of Congress to pass it. The rider is attached to get rid of the Constitutional exercise of the veto power to defeat… [a rider]… the Pres[iden]t does not approve…”  The political gamesmanship of the House Democrats gave the Republican President a constitutional argument with which to battle them.

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Rutherford B. Hayes, 19th President of the United States from 1877-81. (Rutherford B. Hayes Presidential Center)

In his diary, the president expressed his thoughts about this controversy many times. Of the Democrats he wrote, “They will stop the wheels – block the wheels of government if I do not yield my convictions in favor of the election laws. It will be a severe, perhaps a long contest. I do not fear it – I do not even dread it. The people will not allow this Revolutionary course to triumph.”  Later, he confided, “I object to the [army appropriations] bill because it is an unconstitutional and revolutionary attempt to deprive the Executive of one of his most important prerogatives… [and to] coerce him to approve a measure which he in fact does not approve.”  This was the constitutional counter-argument taken up by the Republicans.

(Check back soon for Part II!)

-Joan Kapsch and Alan Gephardt, Park Rangers

 

“It Bristles with Law Points”: James A. Garfield’s Career as a Lawyer, Part I

In 1852, twenty year old James Garfield was considering possible future career paths. He rather vehemently rejected any thought of politics. “I am exceedingly disgusted with the wire pulling of politicians and the total disregard for truth in all their operations. Miserable, low, ungentlemanly trash fills the columns of the political press, unfit for refined feelings, tender consciences, or kind hearts.” Two years later he considered the law. “Though I do not regard the Legal Profession incompatible with Christianity, still I think it would be much more difficult to cultivate and preserve that purity of heart and devotedness to the cause of Christ while partak[ing] of those ambitious aspirations that accompany the Gentlemen of the Bar.” Ironically, it was in those two fields that Garfield was most successful, and made lasting marks on American law.

A young James A. Garfield, who overcame extreme poverty to obtain an education and careers as a teacher, college president, soldier, congressman, lawyer, and president.  Though some of his private remarks about blacks seem harsh today, his public support for black suffrage was consistent.  (Western Reserve Historical Society)

A young James A. Garfield, who overcame extreme poverty to obtain an education and careers as a teacher, college president, soldier, congressman, lawyer, and president.  (Western Reserve Historical Society)

After two years of private study—while also teaching, regularly preaching, and campaigning for a seat in the Ohio Senate—James Garfield presented himself to a board of examiners seeking admission to the Ohio Bar. Following a “thorough and searching examination,” the board complimented his “unusual and phenomenal” mastery and admitted Garfield to the practice of law on January 26, 1861. Almost immediately the Civil War intervened and teacher, preacher, politician, lawyer Garfield became a soldier.

James Garfield’s legal career didn’t begin until the war was over and he was serving in Congress. He was asked by Jeremiah Sullivan Black—a friend, a fellow Disciple of Christ, and a Democrat—to join him in arguing a case called Ex parte Milligan before the United States Supreme Court. It would be Garfield’s first appearance as a lawyer in any courtroom.

Lambdin P. Milligan was the main defendant in the Ex Parte Milligan case.  He and four others had been arrested for treason and argued that as civilians, the military had no jurisdiction to try them. This case was the first ever argued by lawyer James A. Garfield.  (Yale University Law School)

Lambdin P. Milligan was the main defendant in the Ex Parte Milligan case. He and four others had been arrested for treason and argued that as civilians, the military had no jurisdiction to try them. This case was the first ever argued by lawyer James A. Garfield. (Yale University Law School)

The Milligan case came out of the Civil War. Lambdin P. Milligan and four co-defendants had been arrested in Indiana in the fall of 1864 and charged with treason. Milligan and his southern-sympathizing friends were accused of plotting to release Confederate prisoners of war and giving aid to Rebel raiding parties in southern Indiana. They were tried by the army in a military tribunal, convicted, and sentenced to hang. They appealed, arguing that as civilians, they should not have been tried by the military in a state of the Union where civilian courts were operating. The case reached the Supreme Court in 1866.

Garfield’s argument on behalf of Milligan and his co-defendants was lengthy and learned—he had spent weeks in preparation. He told the Justices that a ruling for the defendants would demonstrate “that a republic can wield the vast enginery of war without breaking down the safeguards of liberty; can suppress insurrection, and put down rebellion, however formidable, without destroying the bulwarks of law.” The Supreme Court unanimously agreed that the military did not have jurisdiction in the case, upholding Garfield’s position. Writing for the court, Justice David Davis said that the Constitution was “a law for rulers and people, equally in time of war and peace.”

Ex parte Milligan is recognized as one of the Supreme Court’s most important decisions about the rights of citizens to due process as outlined in the Constitution, and it gave Garfield instant recognition as a constitutional lawyer.

Pennsylvania Congressman Thaddeus Stevens was a fierce abolitionist with whom Garfield disagreed over equal pay for black soldiers.  (Library of Congress)

Pennsylvania Congressman Thaddeus Stevens was a Radical Republican that opposed the final decision in Ex Parte Milligan.  He feared it would be used by those opposed to military courts in the South to get those courts disbanded. (Library of Congress)

But Milligan was not decided in a vacuum. Immediately following the war, President Andrew Johnson, the Radical Republicans in Congress, and the people of the South were facing the issues of reconstruction. Following their overwhelming victory at the polls in 1866, Republicans in Congress, including James Garfield, quickly outlawed President Johnson’s very accommodating Reconstruction program. Fearing that essentially unreconstructed southern states would “substitute a degrading peonage for slavery and make a mockery of the moral fruits of northern victory,” Congress passed the First Reconstruction Act, establishing military rule in the former Confederacy. A feature of congressional reconstruction was a series of military courts established to maintain order and protect freedmen. President Johnson cited Milligan to oppose these courts. One of the most radical of the Republicans in Congress, Thaddeus Stevens worried that the Milligan decision, “although in terms perhaps not as infamous as the Dred Scott decision, is yet far more dangerous in its operation.” But Milligan did not address the appropriateness of the use of military courts in the states that had rebelled. Contrary to the fears of some that the decision by the Supreme Court had nullified at least a part of Reconstruction Act, what the Justices carefully declared was that military jurisdiction “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open”—exactly the argument Garfield had made.

(check back soon for Part II)

-Joan Kapsch, Park Guide