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A Constitutional History of the United States
Chapter XLV - Reconstruction I: Early Problems; Radical Victory
by McLaughlin, Andrew C.

As we examine the problems of Reconstruction we find them in some respects like those we have considered in treating of the war itself. On the one side was the theory that the states could not secede and that the war was an insurrection; on the other was the fact that the states had ceased to function as states in the union; during four years, claiming independence, they had been joined together in a powerful Confederacy. The union must be restored. But did restoration take place, as a matter of legal right and theory, with the withdrawal of federal arms? As the states could not secede, must they be treated as if they were in the union and possessed of all their rights? Plainly, no amount of legalistic legerdemain could obscure the necessity of readjustment and political reconstruction. The question was how quickly and how thoroughly should the wayward states be once again restored to their normal position in the union. Congress had, on the whole, acquiesced in executive leadership during the war. The President had wielded enormous power; but now that the war was over, reaction was inevitable, and Congress was certain to be less tractable and. more determined to have its way.

Before hostilities ceased, Lincoln had taken steps toward reconstruction, and his proposals embraced a policy. On December 8, 1863 he issued a proclamation of amnesty; it included a plan for restoration. Various classes of persons were excepted from the pardon — notably those that had held high rank in the Confederate army or navy and those that had left certain important positions in the federal government or in the military and naval service and had cast in their lot with the Confederacy. The proclamation announced that, if a number of persons in any of the Confederate States (except Virginia, which was in theory under the Pierpont government), not less than one-tenth the number voting in 1860, should take the oath of allegiance and be qualified voters and should reŽstablish a state government, republican in form, such a government would be recognized as the true government of the state.

Some months after this, Congress passed an act which differed in some respects from the plan presented by Lincoln, but it was not signed because it was submitted to him less than an hour before the end of the session. With his customary good sense, the President, in a special proclamation, asserted that he was not inflexibly committed to any one plan of restoration, that he was not prepared to declare that constitutions already installed in two of the states should be held for naught, but that he was fully satisfied with the system of restoration contained in the bill.[1] Plainly at this time the President and Congress were not very far apart in their ideas of what should be done. Before the close of the war, constitutional conventions in Tennessee, Louisiana, and Arkansas set up governments. But these governments were rather shadowy affairs, and congressmen from these theoretically reconstructed states did not find their way to seats in the legislative halls at Washington.

The proclamation quoted the constitutional provision concerning a republican form of government.[2] On that provision — if we must find some distinct technical basis — the authority of the national government to restore the union can possibly be based with some degree of assurance. A state government, that is seized by "rebels" and made to do their will, can scarcely be considered a free constitutional government. Technically, a state not in the possession of its loyal citizens is not, constitutionally speaking, republican.[3]

Upon the death of Lincoln, Andrew Johnson assumed the onerous duties of the presidency. The dreary history of Reconstruction during the earlier years is associated with this pathetic figure — pathetic because he was temperamentally not fitted to the peculiarly difficult task, and because upon him was heaped for a time obloquy and the suspicion of millions. It is not for us to attempt an estimate of his gifts and failings, and yet few persons so evidently have a place in constitutional history. His surroundings in early life were not very different from those of Lincoln; but his career as President is proof that more is needed for the highest public service than being born in poverty and reared in adversity. Only within recent years have historians turned to his defense, after candid examination of the evidence; and in these later days if opprobrium is indulged in, it is more likely to be poured out upon the acrid radical partisans than upon the stubborn occupant of the White House.[4] His main fault or misfortune was consistency, a grievous defect in anyone burdened with the duties of statesmanship. His old states' rights theories, his determination to carry on his policy of immediate reconstruction, and his doctrine that states could not secede, with all the utterly logical conclusions from that doctrine, he clung to with undeviating persistence. He did not know when he was beaten, and he believed that truth — his truth — must prevail. Logic and rhetoric, said Bacon, make men able to contend. Johnson's career is a proof of Bacon's wisdom. But in one vital matter he did change. At first, his attitude toward certain southern leaders was as stern and unforgiving as the most violent enemy of the south could desire, but with the subsidence of excitement after Lincoln's death, better counsels prevailed. Lincoln's cabinet, retained by Johnson, appears to have had a quieting influence. Before many months had passed, the President entered upon a policy comparatively mild and free from vindictiveness.

Johnson fell heir to Lincoln's plan of Reconstruction. The Pierpont government was recognized as the government of Virginia (May 9, 1865). The governments set up in the other three southern states already mentioned were assumed to be the legitimate governments. At the end of the month, he issued a new amnesty proclamation, not quite so generous in its provisions as that issued by Lincoln. The required oath of loyalty included a promise to abide by and support all laws and proclamations made during the rebellion with reference to the emancipation of slaves. At the same time he issued pronouncements for the establishment of governments in the states of the Confederacy.[5] For each state a provisional governor was appointed, whose duty it was to prescribe rules for assembling a convention to be composed of delegates chosen by loyal citizens. The convention was to alter or amend the state constitution, take further necessary steps for restoring the state to its constitutional relations, and "present such a republican form of State government" as would entitle the people "to protection by the United States against invasion, insurrection, and domestic violence". A voter must have taken the oath prescribed in the amnesty proclamation, and be qualified to vote under the terms of the constitution and laws of the state in force at the time of attempted secession. The convention or the legislature afterwards assembled was to lay down qualifications for voting — "a power," said the President shrewdly, "the people of the several States ... have rightfully exercised from the origin of the Government to the present time." [6]

The success of Johnson's policy depended in a measure upon the south's readiness to act with rare discretion. No high-spirited people can be expected even in the hour of utter defeat to confess their sins, when by doing so they acknowledge that all the sacrifices and sufferings of a great war were due to their own blunders and wickedness. But of their readiness to accept the fact of defeat and of their willingness to abandon state sovereignty as a practical doctrine, there is considerable evidence.[7] Among various reports upon southern conditions and attitudes of mind, two important ones were presented to Johnson. General Grant, who made a hasty survey, wrote, "I am satisfied that the mass of thinking men of the south accept the present situation of affairs in good faith." He believed they regarded slavery and the right to secede as "settled forever by the highest tribunal — arms — that men can resort to." They would, he thought, carry out in good faith any governmental policy not humiliating to them as citizens. Carl Schurz, on the other hand, while declaring there was no present danger of another insurrection on a large scale, said treason did not appear odious in the south. "The people are not impressed with any sense of its criminality.... There is, as yet, among the southern people an utter absence of national feeling." How strange that an able man should remotely expect to find a sense of sin or that a heavy-hearted people should become overnight enthusiastic defenders of the triumphant cause! When all is said, statesmanship should be mixed with common sense. Slavery, he told the President, in its old form, would not be reŽstablished, but some species of forced labor would be; and therefore, for the protection of the freedmen, they must be given the suffrage. The states should not be readmitted until this radical step was taken.

In the course of the summer and autumn (1865), the movement for Reconstruction under Johnson's plan went on. Conventions were held in six states.[8] Acts of secession were repealed, and the legislatures of five states ratified the thirteenth amendment, Mississippi refusing, among other reasons, on the ground that slavery was already abolished and that she would not participate in coercing Kentucky and Delaware.[9] Mississippi also passed legislation concerning the freedmen, that was very obnoxious to the northern people and prepared their minds and hearts for stern measures in their treatment of the southern states. Other states took similar steps. The laws in some instances set aside the freedmen as a separate class, commonly designated as "persons of color", who were precluded from enjoying many of the civil privileges belonging to the whites.[10] To the northerners, these "black codes" appeared to be devices for the perpetuation of slavery or something almost as bad. A more charitable spirit would have found in them a serious attempt to solve the problem begotten by the presence of millions of blacks, few of whom were prepared for the duties of freedom. If one seeks to defend the passage of these laws because the confusion in the south made them necessary, he must still confess that to pass them was a tactical blunder. And this discrimination against the blacks, which was painted in darkest colors by certain politicians, fired the northern mind.

In considering the whole era of Reconstruction we cannot lose sight of the fact that many northern men cherished the ideals of complete freedom; anything less was anathema; and they pictured to themselves a negro people competent to become immediately self-dependent and capable members of society. Slavery had been denounced from the housetops; and now men could believe the whole trouble had been, not ignorant labor or racial incapacity, but slavery as a system. Freedom would at once have its normal and vivifying effect. We must recognize, too, the instinctive reaction in many minds against a class of persons set aside as a distinctly inferior class, a caste apart, its existence mocking at the theory of democratic equality. To make matters worse, the southern states elected to Congress men who had been prominent in the "rebellion", among them Alexander H. Stephens, who at that very time stood charged with treason and had only recently been released from prison on parole. "There seems", said Johnson, "in many of the elections something like defiance, which is all out of place at this time." [11]

When Congress met in December, 1865, the leaders were in no mood to comply at once with the presidential plans and their results. The admission of southern congressmen would add to the power of the Democratic opposition, and it threatened the hold of the Republicans on the government. When the time should come for a new apportionment of representatives, the southern states, but recently locked in a death struggle with the north, would hate more congressmen than before, for with the disappearance of slavery vanished also the three-fifths compromise of the Constitution. This was a situation too grievous to be borne. Had the "rebels" been conquered and slavery banished only to the end that government might be placed in the hands of men who had tried to overthrow it?

The President's message was in many respects statesmanlike. It did not exhale hatred, for Johnson had grown steadily more charitable. He had called upon George Bancroft, the historian, to pen his message for him,[12] and he had profited by the serene influence of his cabinet — serene, that is to say, in comparison with the tempestuous air of the partisan world without. The message assumed the authority of the President to carry out a plan of Reconstruction, and it announced some of its results. He referred to the desirability, if not the necessity, of expecting the southern states to adopt the thirteenth amendment. But when that step was taken, "it would remain for the States ... to resume their places in the two branches of the National Legislature...." To Congress, it appears, he would leave only the right to judge of the "elections, returns, and qualifications of your own members."

The Secretary of State announced (December 18, 1865) the adoption of the thirteenth amendment abolishing slavery. But this did not assure immediate recognition of the southern states. Congress was to have its words — its many words. Under the leadership of Thaddeus Stevens, the indomitable "Old Commoner", the House had already refused to admit members from the "so-called Confederate States of America". He also secured the appointment of a joint committee to inquire into the condition of the southern states and report whether any of them were entitled to representation in Congress. Thus was constituted the formidable and effective committee on Reconstruction, with William Pitt Fessenden of the Senate as chairman. There was little hope that Johnson's policies would prevail. If supported by public opinion, the Radicals could carry forward their own purposes; the south could be made to bend to their will in every essential respect.

As the basis of the work to be done, we find various theories, or doctrines. Johnson's theory, sometimes called the presidential theory of Reconstruction, is perhaps better described as the theory of self-reconstruction; for he believed that, while the initiative and supervision were his own, the loyal citizens of the states had the right and should be allowed, under such federal protection as might be needed, to restore their governments and bring their states back into their constitutional relations. Three other main theories were advanced, all of them in agreement on one point — that the business of Reconstruction was fundamentally a matter for the legislature and not for the President alone.

The first of these three was the conquered provinces theory promulgated by Thaddeus Stevens. Out of patience with constitutional technicalities, he could see no virtue in theories which denied actual facts. The states had gone out of the union, they had been beaten at the expense of many lives and much treasure, and it was the duty of their conquerors to do what was deemed suitable.[13] "The future condition of the conquered power depends", he said, "on the will of the conqueror. They must come in as new states or remain as conquered provinces." [14]

The second, commonly called the state suicide theory, had been set forth by Charles Sumner during the war:[15] a state attempting secession ceased to be a state, and the region and its people became subject to Congress. This theory differed from that of Stevens in not accepting secession as a fact, but as only destroying the states as bodies politic.[16]

The third theory, known as the theory of forfeited rights, is perhaps more accurately termed the theory of suspended animation; it did hold that the states had temporarily forfeited their rights; they were not, however, as a consequence totally dead, but in a condition of coma; they could be brought to life by the ministrations of a solicitous, if stern, physician whose prescriptions and mandates must be absolutely obeyed. Congress could issue such orders and lay down such conditions as appeared necessary. The state could not spring into full, active existence at the mere word of the President.

Which one of these theories predominated in the course of the following years it is not easy to say. But it is probably correct to say that on the whole the idea that the states were utterly wiped out could not and did not prevail. Determined as men were to compel the south to do certain things, the procedure was on the whole that of restoration and reŽstablishment. "The Constitution," the Supreme Court declared, "in all its provisions, looks to an indestructible Union, composed of indestructible States.... Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.... The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.... All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended." [17] The President, the Court declared, might, as long as the war continued, institute temporary governments, "But, the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress." [18]

If we could escape from the net and tangle of technicalities, we could content ourselves with Lincoln's words in his last public address. A regret had been expressed, he said, that his mind was not definitely fixed on the question whether the seceded states, "so called", were in the union or out. The question, he declared, had not been and was not at the time "a practically material one...." "As yet, whatever it may hereafter become, that question is bad as the basis of a controversy, and good for nothing at all — a merely pernicious abstraction." [19] To the weary searcher after constitutional truth, these words are consoling.

The essentials of the situation are plain. Congress was determined not to accept the President's plans but itself to manage Reconstruction. The leaders, gradually getting recruits from those who had been acquiescent during the summer months of 1865, believed, or sought to believe, that the southern "rebels" were not converted, that the fruits of victory must be garnered, and that something must be done to make the freedmen secure in their freedom; in fact, the states should be kept from participation in the union until Congress had worked its will. The most advanced Radicals were now demanding negro suffrage — some of them doubtless for personal or party reasons; some of them because they believed in the general sanctity of a wide suffrage devoid of class discrimination; others because they believed slavery would in substance continue unless the negroes were given political weapons of defense. Sumner, now insistent upon negro suffrage, had taken up his position some months before the active contest over Reconstruction began. "I insist", he said in a letter to John Bright in the spring of 1865, "that the rebel States shall not come back except on the footing of the Declaration of Independence.... Without them [negro votes], the old enemy will re-appear, and under the forms of law take possession of the governments, choose magistrates and officers, and in alliance with the Northern democracy, put us all in peril again...." This sums up the matter: belief in equality of rights, distrust of the "rebels" strengthened by the Democrats of the north, and the consequent need for negro votes. Congress was to come to this position.

It is unfair to charge the Republican leaders with zeal for party supremacy and for that alone. Bitter and vindictive some of them were; but many of them probably, with more than ordinary partisan passion, believed in their duty toward the black men. As partisans — and in their own minds as patriots — they were anxious to maintain their political power. As yet (1866), however, the north was not prepared to take the final step which might ward off the catastrophe of Democratic dominance; enthusiasm for negro suffrage was not widespread.[20] The more Johnson inclined toward leniency, the more he attracted the Democrats of the north as well as the southerners, and the more vehement and determined did the Republican leaders become. This condition and this danger — the danger that the Democrats would irretrievably damage Johnson's cause by supporting it — did not appear at once; but as the months went by, it became plain. He could not prevent the Democrats and, above all, the old-time Copperheads from enlisting under his banner.

There appeared for a time to be a willingness or an inclination to accept the general views of the President. The people-at-large, we may surmise, were aweary. But objections developed; and they were increased by Johnson's veto of the Freedmen's Bureau bill, February 19, 1866. This bill enlarged the scope of an act of the previous year; it provided for issuing food and other supplies to destitute negroes; it imposed on the President the duty of protecting the freedmen; and it declared — here was the heart and center of its offending — that any person, in any region where the ordinary course of judicial procedure had been disturbed by the rebellion, who should subject another, on account of race, color, or previous condition of servitude, to the deprivation of any civil right secured to white people, should be deemed guilty of a misdemeanor. The President vetoed the bill, saying that it referred to certain of the states "as though they had not 'been fully restored in all their constitutional relations to the United States.' " Congress could not accept mildly this assumption that the states could be brought back into full statehood by the wave of the presidential wand. But the Senate failed to pass the bill over the veto; the President was still in a position of authority. But this was his last victory.

On Washington's birthday (1866) Johnson made a speech which reached the height of political impropriety; the old saying, "It was worse than a crime — it was a blunder", can with assurance be said of this. He declared that the country was "almost inaugurated into another rebellion." An attempt was made, he said, to concentrate all power in the hands of a few and bring about a consolidation of the republic. He referred to the assumption of power "by an irresponsible central directory...." From the crowd of listeners gathered to congratulate him upon his veto and his victory came a voice asking him to name the culprits threatening the union, and he answered: "I say Thaddeus Stevens, of Pennsylvania; I say Charles Sumner, of Massachusetts; I say Wendell Phillips, of Massachusetts [Great cheering, and a voice, 'Forney!'] I do not waste my fire on dead ducks." Such words illustrate the tone and temper of the harangue. They antagonized Congress and they awakened the antipathy of the people, who, however simple they may be in life and speech, demand dignity and decorum in their higher officials. Though this speech dismayed many of those still believing in Johnson, efforts were made by the less headstrong Republicans to avoid a complete break with the President. Before this unfortunate speech, and immediately after the veto, the House, on the motion of Stevens from the committee on Reconstruction, adopted a concurrent resolution formally declaring that no senator or representative should be admitted to Congress from any state of the former Confederacy until Congress declared the state entitled to representation. The Senate adopted the resolution a few days later. It was scarcely necessary, but it was a direct and emphatic answer to the President.

The Senate had been engaged for some time in framing a Civil Rights bill. Early in February it was passed by the Senate, and some six weeks later by the House — in both .houses by large majorities. It was vetoed by the President and passed over the veto.[21] The result showed, however, that if any one of the southern states, whose claims the President was advocating, had been represented in Congress, the Senate could not have voted to override the veto.

The Civil Rights bill disclosed the principles and purposes of Congress concerning the rights of the freedom and the duties of the government. All persons, irrespective of race, color, or previous condition of servitude, were declared entitled to the possession of fundamental civil rights and liberties and to the equal protection of the laws. Anyone, "under color of any law ... or custom", subjecting another to the deprivation of any right protected by the act, or subjecting him to a punishment different from that prescribed for the punishment of white people, because such person had been held in slavery or involuntary servitude, should be deemed guilty of a misdemeanor and punished accordingly. The federal district courts were given cognizance of offenses committed against the act; district attorneys, marshals, and certain other officers were required to institute proceedings against violators of the act.

The constitutionality of this act was attacked by the President and by others as a wanton intrusion upon state authority. It assumed the right, until then unheard of, in the central government to protect state citizens against state laws and against officers charged with the execution of such laws. It appeared to set aside or ignore the essential qualities of federalism.[22] The act did not purport to be merely a war measure, and the defense of its constitutionality rested on the thirteenth amendment. The amendment in abolishing slavery gave to Congress the authority to enforce the act by appropriate legislation. Was this appropriate legislation? The answer turns on the question whether discrimination such as that laid down in the "black codes" of the south constituted slavery. Lyman Trumbull, one of the ablest though not the most extreme and vehement of the congressional leaders, strongly defended the act as entirely consistent with the amended Constitution. If people can be deprived of the ordinary rights to life, liberty, and the pursuit of happiness, what is their condition but that of slavery, even though slavery in its cruder form has disappeared? This argument has force; but probably, when the amendment was adopted, the people of the land would have said — if we may paraphrase the words of Polonius — to define true slavery, what is it, but to be nothing else but a slave? [23] Presumably they thought the purpose of the amendment was to abolish slavery as it had existed at the south.

Though Congress had its way and the act became law, its constitutionality was doubtful — at least Congress or the courts might at a later time so consider it. Prudence therefore indicated the need of a constitutional amendment embodying the principle of the act, and also various other matters of immense importance to the purposes of the Radical leaders: the sanctity of the public debt, assurance that the Confederate debt would not be assumed or paid, the degree of participation in the government by late "rebels", and, more important than everything else in the minds of eager partisans and philanthropists, negro suffrage, or some way of avoiding the danger that by the increase of southern representation the hold of the Republican party upon the government would be lost and the results of war in part destroyed. Not until June 13, 1866, was the fourteenth amendment passed and submitted to the states for ratification. How affirmative action was obtained in some of the states we shall consider later in connection with the congressional plans for Reconstruction.

Only gradually in the decades after adoption did the full implications and the full consequences of the fourteenth amendment appear, but such consequences and implications were of great importance. No other portion of the Constitution has been the basis of so much litigation, and few portions are of so much political and social consequence. An attempt will be made in later pages to disclose the truth of this assertion, but it is necessary now to examine the amendment without anticipating in any marked degree later interpretations. The first portion of the first section sweeps away the principle announced by Taney in the Dred Scott case, and sets forth briefly the fact of double citizenship.[24] The remaining portions of the first section [25] were quite obviously intended to make illegal henceforth all such acts as those of the southern states denying equality of the races in the possession of civil rights. But the words used were of general rather than only particular application. One profoundly important fact is plain: these clauses of the fourteenth amendment — the only portion really important and of lasting influence — vividly mark the development of the very idea of nationalism in the eighty years after the meeting of the fathers at Philadelphia. The states, and they alone, from the beginning of the government until the ratification of this amendment, were the guardians of the personal liberty of their citizens, and they were free to decide for themselves the extent and character of that liberty. It is true the federal Constitution had placed a few explicit prohibitions upon the authority of the states in dealing with their own citizens, but nothing could have seemed more visionary in 1788 than to dream of charging the national government with defense of personal liberty against encroachment by the states. The fourteenth amendment called upon the central government to protect the citizens of a state against the state itself.

Though the terms of the second section of the amendment were general and did not have reference to negro suffrage alone, the negro vote was then, of course, the chief matter of concern. The purpose of the section was to compel the south to grasp one horn or the other of an embarrassing dilemma: a state might give votes to the negroes, or it might refuse to do so and, in consequence, lose representation in Congress. The alternative prescribed did not satisfy the more eager advocates of negro suffrage, but it did seem to save the Republicans from a flood of southern opponents in Congress. The amazing thing, however, is the slight attention given by the advocates of this amendment to the question of how this section on representation could be made effective.[26] Experience of the coming years presented practically insuperable obstacles to its enforcement. Why, it may be asked, did not the amendment base representation on the actual number of voters? Such a provision might have been enforceable, but the difficulty of determining how many persons were excluded by state action limiting the suffrage is fairly evident. There were several reasons for not making voting numbers the basis of representation: one was that it would affect in some degree the representation of the northern states, for the act was not applicable to the south alone; moreover, representation from the beginning of the government had been based on population, not on voters.[27] While the amendment established a new basis of representation, it did not take from the states the primary right to decide upon qualifications for the suffrage.

Of the latter portions of the amendment, little need be said, although at the time a great deal was said. The subject of the third section gave to the debaters in Congress opportunity for fervid and flamboyant declamation, the kind of oratory later known as "waving the bloody shirt". By this third section no person who, having held office under any state or the United States, had taken the oath to support the Constitution and had thereafter engaged in rebellion, could become a member of Congress or hold any office in either the state or the national government. A two-thirds vote of Congress might remove such disability. The most serious consequence of this section of the amendment was the exclusion from state office of men who by experience and by training were or might be most fit to lead. The fourth section, declaring the validity of the public debt and the illegality of the Confederate debt, indicates, once again, the fear or the pretended fear lest the southerners and their northern allies should get control of the government and saddle the southern debt upon the national treasury — a danger which was made much of by the Radical politicians.

An extensive and able report from the committee on Reconstruction was submitted a few days after the amendment was passed by Congress and submitted to the states. It of course declared the re-establishment of the southern states in their constitutional relations to be the duty of Congress and not of the executive. It declared there was no necessity for discussing a "profitless abstraction" and deciding whether or not the states were still states of the union. But it announced the necessity of requiring adequate security "for future peace and safety", and this implied the adoption of the fourteenth amendment. The report did not in so many words declare the necessity of adoption by the southern states before their restoration; that course was, however, ultimately followed by Congress.[28] Tennessee ratified the amendment speedily and was admitted into the union. Had Tennessee been long excluded, the medley of constitutional theories would have reached beyond the ridiculous into the sublime, for the President was a citizen of that state. Johnson, in signing the bill for the admission of Tennessee (July 24, 1866), recurred to his former argument; he declared that his signature did not constitute an "acknowledgment of the right of Congress to pass laws preliminary to the admission of duly qualified Representatives from any of the States."

In the spring and summer of 1866 Johnson was plainly losing support in some quarters and gaining in others. After his unfortunate speech on Washington's birthday, many of those who had been acquiescent or had been inclined to give active support, because they longed for peace and were hoping for a speedy reconciliation with the south, began to drift away. In earlier months he had the confidence of former members of the old Democracy who had actively coŲperated with the Republican party, which for obvious reasons had adopted the name of National Union party in 1864. He probably continued to retain a considerable portion of that element. Before the summer was well along, he was plainly winning adherents not only in the south, where naturally his stand was applauded, but also from the northern Democrats, the still vigorous supporters of the old party. But, as we have already said, every step taken in his direction by the Democrats endangered his cause and strengthened the hands of the Radicals, who were determined to arouse the combative spirit of the north. Disorder in certain regions of the south, made the most of by Republican politicians and newspapers, aggravated northern suspicion.

And yet, however much we of this generation may lament the violence and the animosities begotten by the policies of that day, it need not be taken for granted that under any circumstances the northern people would have quietly looked on while southern leaders took their places in Congress. It was not altogether pleasant to contemplate the possible ascendancy of the opponents with whom they had been waging a frightful conflict. In a perfect world, there might have been placid acquiescence; there would have been no rancor; but in a perfect world there would have been no slavery, no war, no heartburnings and bitterness, which are the deplorable but inevitable products of war.

If there was any well-grounded doubt of Radical success and the downfall of Johnson's policy, he made those results certain by his "swing around the circle". He went to Chicago, where there were ceremonies attending the dedication of a monument to Douglas, and he spoke at various other places. On such occasions the old campaigner was at his worst; like an old war-horse, he was sniffing the fray. He felt as of yore, when he was battling a crowd of heckling partisans in the backwoods of Tennessee.[29] The results were disastrous. His speeches, at times undignified and unbecoming, made converts by the thousand to the cause of the Radicals in Congress. It was all pitiable, for beneath the surface of rude and improper speech was in reality a plea for forgiving the vanquished and mistaken south. But he did not see the practical impossibility of cementing the union by his own method, at his own word, and at his own chosen time, or how needless it was to speak of admitting at once to Congress men who had been prominent in the war against the Constitution.

The autumn election of 1866 was a critical one in American history. The supporters of the Radical policy were victorious; henceforth there would be no dallying with the President's plans; with assurance of popular support the policy of "thorough" could now be indulged to the full. In the next Congress, which would meet for its first regular session in December, 1867, the Republicans were assured of an overwhelming majority. The Radical leaders now assumed their possession of a popular mandate to work their will.

[1] July 8, 1864. The bill provided that the state constitutions should prohibit slavery and declare that no state or Confederate debt should be recognized or paid by the state. In other ways the bill differed from Lincoln's proposals of the previous December. Lincoln expressed his doubts of congressional authority to abolish slavery.

[2] Constitution, Art. IV, sec. 4.

[3] "These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the State with the Union.... The authority for the performance of the first has been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government" Texas v. White, 7 Wallace 700, 727-728 (1869).

[4] There are many books treating of Johnson and his opponents. Among the recent ones may be mentioned C. G. Bowers, The Tragic Era; G. F. Milton, The Age of Hate; R. W. Winston, Andrew Johnson; L. P. Stryker, Andrew Johnson. On the whole, the scales have been held as evenly by W. A. Dunning, Reconstruction Political and Economic, as by anyone. "The same integrity of purpose," says Dunning, "force of will, and rude intellectual force, which had raised him from the tailor's bench in a mountain hamlet to leadership in Tennessee, sustained him when he confronted the problems of the national administration.... Positive, aggressive, and violent in controversy, fond of the fighting by which his convictions must be maintained, he nevertheless, in the formation of his opinions on great questions of public policy, was as diligent as any man in seeking and weighing the views of all who were competent to aid him." pp. 19-20. These words may be too favorable. The estimate of Rhodes is less so: "Of all men in public life it is difficult to conceive of one so ill-fitted for this delicate work as was Andrew Johnson." History of the United States, V, p. 517.

[5] North Carolina, May 29; Mississippi, June 13; Georgia and Texas, June 17; Alabama, June 21; South Carolina, June 30; and Florida, July 13. Richardson, Messages, VI, pp. 312-331.

[6] He also suggested to the Governor of Mississippi the advisability of giving the vote to negroes who could read the Constitution of the United States and could write their own names, and also to negro taxpayers.

[7] Notice a letter from J. L. M. Curry (of Alabama) to Senator Doolittle, quoted in Horace White, The Life of Lyman Trumbull, pp. 255-256.

[8] South Carolina, Alabama, Florida, North Carolina, Georgia, and Mississippi.

[9] E. P. Oberholtzer, A History of the United States Since the Civil War, I, p. 118 ff. Of course that was one of those silly blunders which aroused northern suspicion and helped nobody.

[10] Excerpts from these acts are in Edward McPherson, The Political History of the United States ... During the Period of Reconstruction, pp. 29-44. Acts of a similar character had been on the books of southern states before the war, the purpose being to regulate the free negroes — to deal with the negro problem as distinguished from slavery.

[11] The President also telegraphed to Governor Holden of North Carolina, "The results of the recent elections in North Carolina have greatly damaged the prospects of the State in the restoration of its governmental relations." See Rhodes, History of the United States, V, pp. 540-541.

[12] Dunning, Reconstruction, p. 53, note 1; Mass. Hist. Society Proceedings for 1905, p. 395 ff. See also, C. R. Fish, "President Johnson's First Annual Message," Am. Hist. Rev., XI, pp. 951-952. Fish points out that a large part of the ideas had been previously announced by Johnson. The message, however, was affected by the general spirit of moderation which Bancroft was able to infuse into the whole.

[13] "The theory that the rebel states, for four years a separate power and without representation in Congress, were all the time here in the Union, is a good deal less ingenious and respectable than the metaphysics of Berkeley which proved that neither the world nor any human being was in existence.... After the palpable facts of war, to deny that we have a right to treat them as a conquered belligerent, severed from the Union in fact, is not argument but mockery." Quoted in J. A. Woodburn, Life of Thaddeus Stevens, p. 344.

[14] W. L. Fleming, Documentary History of Reconstruction, I, p. 148.

[15] See Ibid., I, pp. 144-145. Professor Burgess asserts that the theory of Samuel Shellabarger, a Representative from Ohio, was "sound political science and correct constitutional law." J. W. Burgess, Reconstruction and the Constitution, pp. 59-60. This theory was substantially the same as Sumner's. Having complete authority over the region which had lost its status as a state, Congress could erect a new state with the coŲperation of loyal inhabitants and admit the state into the union.

[16] Secession sustained by force works abdication of rights under the Constitution, "so that from that time forward the territory falls under the exclusive jurisdiction of Congress as other territory, and the state being according to the language of the law, felo-de-se, ceases to exist." Fleming, Documentary History of Reconstruction, I, p. 144.

[17] Texas v. White, 7 Wallace 700, 725-727 (1869). Justice Grier, dissenting, held that Texas was not a state in the union: "I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not." Ibid., 739. Justices Swayne and Miller, accepting the opinion of the Court on the merits of the case, agreed with Grier that Texas then (1869) was incapable as a state to maintain an original suit in the Court. The Court referred with approval to Luther v. Borden, 7 Howard 1, 42, a well-known case growing out of disturbances in Rhode Island nearly thirty years before. It may be that a distinction can be made between the theory of suspended animation and the theory of forfeited rights, but it seems a needless exercise of ingenuity. For a statement of the theories, see W. A. Dunning, Essays on the Civil War and Reconstruction, p. 103 ff.; T. C. Smith, "Reconstruction," Cyclopedia of American Government, III, p. 164.

[18] Texas v. White, 7 Wallace 700, 730 (1869).

[19] Abraham Lincoln, Complete Works (J. G. Nicolay and John Hay, editors), II, pp. 673-674.

[20] Some persons were by this time becoming anxious about the tariff and the conservation of economic interests. H. K. Beale, in The Critical Year, discusses this, but shows that the forces of the Radicals were recruited largely by appeals to the people, made by the bitter Radical leaders, who stopped at nothing in their denunciation of Johnson during the critical year, 1866, when hard and unrelenting public opinion was forming. "To keep the economic questions in the background until the Southern problem was settled and their power secure, was therefore essential. A campaign of denunciation and vituperation would accomplish this end by keeping war hatreds alive." Ibid., p. 9.

[21] In the Senate the bill was passed over the veto by a vote of thirty-three to fifteen, April 6, 1866; in the House by 122 to 41, April 9. McPherson, Political History of Reconstruction, p. 81.

[22] The details of the bill, said the President, "interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same State — an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers, and break down the barriers which preserve the rights of the States." Ibid., p. 78.

[23] "Congress ... by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens ... the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire." Civil Rights Cases, 109 U. S. 3, 22 (1883). The Civil Rights bill was upheld in the circuit court in two cases, United States v. Rhodes (1866), and Matter of Turner (1867). See Abbott's Circuit Court Reports, referred to in White, Trumbull, p. 274 and note 2. Professor Burgess, whose opinion on constitutional matters always deserves great weight, considers the bill constitutional, though he has some misgivings about the portion authorizing the President to use military authority. He defends the act as within the province of the thirteenth amendment, and on the ground that the states defeated in the war were no longer states. The terms of the amendment, which speaks of "involuntary servitude", are general enough to apply to more than negro slavery. "If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void." Slaughter-House Cases, 16 Wallace 36, 72 (1873). See also Clyatt v. United States, 197 U. S. 207 (1905), upholding a congressional statute against peonage; and Bailey v. Alabama, 219 U. S. 219 (1911).

[24] "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

[25] "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

[26] See A. C. McLaughlin, "Mississippi and the Negro Question," Atlantic Monthly, LXX, p. 828 ff.

[27] If all negroes are by law excluded from the ballot-box, then a census may be conclusive evidence of how many persons are excluded. And there were in later years one or two proposals to gather such evidence. But private citizens might by force prevent negroes from voting, and such action would not subject the state to a loss of representation.

[28] See act of March 2, 1867. McPherson, Political History of Reconstruction, pp. 191-192. The propriety of making adoption by the secession states a condition of restoration is of course debatable — as indeed which one of the many things done is not debatable? If the states as such were not in possession of their powers, if they had lost their status in the union, why not obtain amendment by the existing loyal states and then restore the secession states, which would at that time come in under the Constitution as amended and be bound by it?

[29] Referring to Seward, who had been wounded on the night when Lincoln was assassinated, he said, "I would exhibit the bloody garments, saturated with gore from his gushing wounds. Then I would ask you, Why not hang Thad. Stevens and Wendell Phillips? I tell you, my countrymen, I have been fighting the South, and they have been whipped and crushed, and they acknowledge their defeat and accept the terms of the Constitution; and now, as I go around the circle, having fought traitors at the South, I am prepared to fight traitors at the North." McPherson, Political History of Reconstruction, p. 135. Some of the speeches are to be found in McPherson; see also, Oberholtzer, op. cit., I, p. 395 ff. Rhodes, History of the United States, V, p. 617 ff., is valuable.


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