A Constitutional History of the United States Chapter XLV - Reconstruction I: Early Problems; Radical Victory byMcLaughlin, 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 reëstablish 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
reëstablished, 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 reëstablishment. "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 coöperated 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
coöperation 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.
