«Реконструкция и конституция, 1866–1876»

АМЕРИКАНСКАЯ ИСТОРИЧЕСКАЯ СЕРИЯ

РЕКОНСТРУКЦИЯ И КОНСТИТУЦИЯ

1866-1876

BY

ДЖОН У. БЁРДЖЕС, доктор философии, доктор права

PROFESSOR OF POLITICAL SCIENCE AND CONSTITUTIONAL LAW,

AND DEAN OF THE FACULTY OF POLITICAL SCIENCE,

IN COLUMBIA UNIVERSITY

NEW YORK

CHARLES SCRIBNER'S SONS

1905

COPYRIGHT, 1902, BY

CHARLES SCRIBNER'S SONS

TROW DIRECTORY

PRINTING AND BOOKBINDING COMPANY

NEW YORK

To the memory

of

RICHMOND MAYO-SMITH,

pupil, colleague, and life-long friend,

with grief too deep for words at his loss,

this volume

is affectionately inscribed

by the Author

ПРЕДИСЛОВИЕ

В предисловии к «Среднему периоду» я писал, что воссоздание подлинного национального братства между Севером и Югом может быть достигнуто лишь на основе искреннего и подлинного признания со стороны Юга того, что сецессия была ошибкой, а также провалом. Теперь я намерен дополнить это утверждение мыслью о том, что аналогичное признание со стороны Севера в отношении Реконструкции в период между 1866 и 1876 годами является не менее необходимым.

Выдвигая это требование, меня нельзя понимать так, будто я ставлю под малейшее сомнение искренность Севера в главной цели политики Реконструкции того периода. С другой стороны, я утверждаю, что эта цель была абсолютно заслуживающей одобрения. Она заключалась исключительно в обеспечении гражданских прав только что освобожденной расы и в воссоздании лояльных штатов на Юге. Но теперь едва ли подлежит сомнению то, что были выбраны ошибочные средства.

Для достижения искомой цели были открыты два пути. Один из них заключался в том, который и был выбран, а именно: передача политической власти в руки недавно освобожденных людей; а второй состоял в национализации гражданских свобод путем их помещения под защиту Конституции и национальной судебной власти, а также в удержании южных округов под территориальным гражданским управлением до тех пор, пока белое расово-этническое население в этих округах достаточно не оправится от своей временной нелояльности по отношению к Союзу, чтобы ему снова можно было доверить полномочия местного управления штатов.

У меня не вызывает сомнений то, что второй путь был правильным и верным. И у меня столь же мало сомнений в том, что он оказался бы на практике действительно осуществимым путем. Жители лояльных штатов были готовы в 1866 году поставить гражданские свободы в целом под национальную защиту; и в тот момент не более половины белого населения Юга разделяло нелояльные намерения или настроения. Даже монолитно-демократический Юг еще только предстояло создать; и я весьма серьезно сомневаюсь, что он вообще был бы создан, если бы не великие ошибки Республиканской партии в ее выборе средств и мер в ходе Реконструкции.

Однако я не буду вдаваться в аргументацию по этому вопросу в данном месте. Это относится к основному содержанию книги. Я лишь добавлю, что, по моему мнению, Север уже выразил согласие с этим утверждением и уже сделал требуемое признание. Политику администрации господина Хейса и всех администраций после него можно объяснить и оправдать только на этом предположении. И теперь, когда Соединенные Штаты вступили на путь имперских предприятий под руководством Республиканской партии — великой партии Севера, — Север на основе ценного опыта ежедневно убеждается в том, что между расами существуют огромные различия в политическом потенциале и что миссия, обязанность и право белого человека заключаются в том, чтобы удерживать бразды политической власти в собственных руках ради цивилизованного развития мира и благополучия человечества.

Пусть Юг проявит такую же готовность, искренность и мужественность в осознании и признании своей доли прошлых ошибок, и примирение станет полным и окончательным!

Я вновь должен выразить благодарность моему другу и коллеге доктору Кушингу за помощь в подготовке этого тома к печати. Я также хочу выразить признательность редакции журнала «Нью-Йорк Индепендент» за разрешение включить части моей статьи о Женевы арбитраже, опубликованной несколько лет назад в этом уважаемом издании, в последнюю главу настоящей книги.

JOHN W. BURGESS.

323 WEST 57TH ST., NEW YORK CITY,

January 22d, 1902.

CONTENTS

ГЛАВА I. ТЕОРИЯ РЕКОНСТРУКЦИИ

ГЛАВА II. ВЗГЛЯДЫ И ДЕЙСТВИЯ ПРЕЗИДЕНТА ЛИНКОЛЬНА В ОТНОШЕНИИ РЕКОНСТРУКЦИИ

ГЛАВА III. ПЛАН РЕКОНСТРУКЦИИ ПРЕЗИДЕНТА ДЖОНСОНА И ЕГО ДЕЙСТВИЯ ПО ЕГО РЕАЛИЗАЦИИ

ГЛАВА IV. ПЛАН РЕКОНСТРУКЦИИ КОНГРЕССА

ГЛАВА V. ПЛАН РЕКОНСТРУКЦИИ (Продолжение)

ГЛАВА VI. ПЛАН РЕКОНСТРУКЦИИ (Продолжение)

ГЛАВА VII. ПЛАН РЕКОНСТРУКЦИИ (Окончание)

ГЛАВА VIII. ИСПОЛНЕНИЕ ЗАКОНОВ О РЕКОНСТРУКЦИИ

ГЛАВА IX. ПОПЫТКА СМЕЩЕНИЯ ПРЕЗИДЕНТА

ГЛАВА X. ВОЗОБНОВЛЕНИЕ РЕКОНСТРУКЦИИ

ГЛАВА XI. ПРЕЗИДЕНТ ГРАНТ И РЕКОНСТРУКЦИЯ

ГЛАВА XII. ГОСПОДСТВО «КАРПЕТБЕГЕРОВ» И НЕГРИТАНСКОГО НАСЕЛЕНИЯ В ЮЖНЫХ ШТАТАХ МЕЖДУ 1868 И 1876 ГОДАМИ

ГЛАВА XIII. ПРЕЗИДЕНТСКИЕ ВЫБОРЫ 1876 ГОДА И ИХ ПОСЛЕДСТВИЯ

ГЛАВА XIV. МЕЖДУНАРОДНЫЕ ОТНОШЕНИЯ СОЕДИНЕННЫХ ШТАТОВ МЕЖДУ 1867 И 1877 ГОДАМИ

УКАЗАТЕЛЬ

РЕКОНСТРУКЦИЯ И КОНСТИТУЦИЯ

РЕКОНСТРУКЦИЯ

ГЛАВА I

THE THEORY OF RECONSTRUCTION

The Conception of a "State" in a System of Federal Government—The Different Kinds of Local Government Provided for in the Constitution of the United States—Local Government Under the Constitution of the United States—"State" Destructibility in the Federal System of Government—The Effect on "State" Existence of the Renunciation of Allegiance to the Union—The Idea of "State" Perdurance—The Constitutional Results of Attempted Secession.

The key to the solution of the question of Reconstruction is the proper conception of what a "State" is in a system of federal government. This is

The conception

of a "State" in

a system of

federal

government.

a conception which is not easy to acquire, and which, when acquired, is not easy to hold. The difficulty lies, chiefly, in the tendency to confound the idea of a "State" in such a system with a state pure and simple. Until the distinction between the two is clearly seen and firmly applied, no real progress can be made in the theory and practice of the federal system of government. Now the fundamental principle of a state pure and simple is sovereignty, the original, innate, and legally unlimited power to command and enforce obedience by the infliction of penalties for disobedience. On the other hand, the nature of a "State" in a system of federal government is a very different thing. Such a "State" is a local self-government, under the supremacy of the general constitution, and possessed of residuary powers. In the federal system of the United States, it is a local self-government, under the supremacy of the Constitution of the United States, and of the laws and treaties of the central Government made in accordance with that Constitution, republican as to form, and possessed of residuary powers—that is, of all powers not vested by the Constitution of the United States exclusively in the central Government, or not denied by that Constitution to the "State."

It must be kept in mind that this is not the only kind of local government known in the constitutional law and practice of the United

The different kinds

of local government

provided for in the

Constitution of

the United States.

States. There is, and always has been, since the establishment of the federal system in 1789, for the larger part of the population which declared united independence of Great Britain in 1776, another kind of local government for a part of the United States, a local government which is not self-government, a local government which is but an agency of the central Government. In fact, there have been at times three kinds of local government in the political system of the United States, viz., local government by the executive department of the central Government—that is, local government by executive discretion, martial law—local government as an agency of the legislative department of the central Government—that is, Territorial government—and "State" government. That is to say, since 1789 the whole of the United States, territorially, has never been under the federal system of government, but has always been partly under federal government and partly under the exclusive government of Congress, and has sometimes been partly under federal government, partly under the exclusive government of Congress, and partly under the exclusive government of the President.

The Constitution of the United States recognizes and provides for all three of these species of local government, and vests in Congress the

Local government

under the

Constitution of

the United States.

power of advancing the population of a district, the confines of which district shall be determined by Congress itself, from the lower to the higher forms of local government. While the Constitution does not expressly impose upon Congress the duty of making or permitting the change from one kind of local government to another, it impliedly indicates that Congress shall determine the kind of local government which the population of any particular district shall enjoy in accordance with the conditions prevailing, at any given moment, among them. If the maintenance of law and order requires the immediate exercise of military power, Congress may, and should, permit the continuance of the President's discretionary government. If, on the other hand, this is not necessary, Congress may, and should, confer civil government, under the Territorial form, and when the population of a Territory shall have become ripe for local self-government and capable of maintaining it, Congress may, and should, allow the Territory to become a "State" of the Union, a Commonwealth.

Such being the nature of a "State" of the Union and such the method of its creation, what reason is there for speaking of the "States" in a

"State" destructibility

in the system of

federal government.

system of federal government as indestructible? As they emerge from the status of Territories under the exclusive power of Congress, upon having attained certain conditions, why may they not revert to the status of Territories upon having lost these conditions of "State" existence; nay, why may they not revert to the status of martial law by having lost all of the conditions of civil government? The dictum "once a State always a State" in a system of federal government has no sound reason in it. Under the Constitution of the United States, every "State" of the Union may through the process of amendment be made a province subject to the exclusive government of the central authorities; and when those who wield the powers of a "State" renounce

The effect on "State"

existence of the

renunciation of

allegiance to the

Union.

the "State's" allegiance to the United States, renounce the supremacy of the Constitution of the United States and of the laws of the central Government made in accordance therewith, then from the point of view of political science it will become a state pure and simple, a sovereignty, if and when it permanently maintains, by its own power or by the assent of the United States, this attitude against the United States, but from the point of view of the constitutional law of the United States it simply destroys one of the fundamental conditions of local self-government, and gives, thus, warrant to the central Government to resume exclusive government in the district, and over the population which has become disorganized by refusing obedience to the supreme law of the land, as fixed by the Constitution of the United States. Whether the central Government has the physical power, at a given moment, to do this or not, is another question. It certainly has, at the outset, the legal right. The "State" is no longer a "State" of the Union, nor has it become a state out of the Union. It is simply nowhere. The land is there and the people are there, but the form of local government over it and them has been changed from local self-government to a Congressional or a Presidential agency, as the case may be.

Neither is there any reason for holding that the old "State" organization perdures as an abstract something under the forms of

The idea of "State"

perdurance.

Congressional or Presidential rule, and will emerge of itself when these are withdrawn. If the "State" form of local government should be established again over that same district and over the population inhabiting it, it would be an entirely new creation, even though it should recognize the forms and laws and obligations of the old "State." It must be, however, remembered that both the executive and judicial

The acceptance of

this idea by the

Government of

the United States.

departments of the United States Government committed themselves fully to this theory of "State" perdurance as an abstract something unaffected by the loss of the conditions of the "State" form of local government through the rebellion of the "State" organization against the supremacy of the Constitution and laws of the United States, and that Congress did the same thing, at first, in some degree. It was this error which caused all of the confusion in the ideas and processes of Reconstruction, and we ought, therefore, to rid ourselves of it at the start, at the same time that we recognize its influence over the minds of those who engaged in the difficult work of the years between 1865 and 1876.

From the view which we take of the nature of a "State" in a system of federal government, and its possible destructibility, there is not much

The constitutional

results of attempted

secession.

difficulty in determining the constitutional results of an attempt upon the part of such a "State" to break away from its connections in that system. What it does, stripped of all misconception and verbiage, is simply this: it forcibly resists the execution of the whole supreme law of the land, and destroys the prime condition of its own existence by making it necessary for the central Government to assert exclusive power in the district where this happens. Naturally the executive department of the central Government must act first, and subdue by force the force which has been offered against the supremacy of the Constitution and laws of the United States. After that shall have been accomplished, the question as to how the population in the rebellious district shall be civilly organized anew, is one for the legislative department of the central Government exclusively. Congress may fashion the boundaries of the district at its own pleasure, and may establish therein such a Territorial organization of civil local government as it may see fit, and is limited in what it may do in this respect only by the constitutional immunities of the individual subject or citizen under every form of civil government provided or allowed by the Constitution of the United States. Congress may also enable the existing population of such a district, or such part of that population as it may designate, to organize the "State" form of local government, and may grant it participation in the powers of the central Government upon an equality with the other "States" in the federal system. These things are matters in which the President, as the executive power, cannot interfere. As participant in legislation, however, he may, at his own discretion, use his powers of recommendation and veto.

If rebellion against the supremacy of the Constitution and laws of the United States should not be committed by an existing "State" organization, but by a new organization claiming to be the "State" organization within the district concerned, the existing organization remaining loyal, but requiring the aid of the central Government to maintain its authority, then the withdrawal of that aid by the President after the accomplishment of its purpose would, of course, leave the old "State" organization with restored authority, and Congress would have no function to perform in the re-establishment of civil government in such a district, or in the readmission of its population to participation in the central Government. This was the course followed in Missouri and Kentucky, and it was the course, which, at first, was attempted in the case of Virginia. In the first two cases it was entirely correct. In the last it had to be abandoned, for reasons, and on account of conditions, which will be explained later.

What we have, therefore, in the theory and history of Reconstruction is the case of existing "State" organizations forcibly resisting the execution of the supreme law of the land, and stricken down by the executive power of the central Government in the attempt, that power being exercised at its own motion and in its own way.

ГЛАВА II

PRESIDENT LINCOLN'S VIEWS AND ACTS IN REGARD TO RECONSTRUCTION

Did Mr. Lincoln Have any Theory of Reconstruction?—Mr. Lincoln's Plan—Mr. Lincoln's Oath of Allegiance, and the Loyal Class to be Created by the Taking of this Oath—The Proviso in this Plan—Seward's Idea of Reconstruction and the Views of Congress and the Judiciary—Ten Per Centum "State" Governments—Reconstruction in Louisiana under Mr. Lincoln's Plan—The New Orleans Convention—The Election of a Governor—The Constitutional Convention of April, 1864, and the Constitution Framed by it and Adopted by the Voters—Reconstruction in Arkansas—The Beginning of Resistance in Congress to the President's Plans—The Wade-Davis Bill—Analysis of this Measure—The President's Attitude toward the Bill—The President's Proclamation of July 8th, 1864—The Wade-Davis Protest against the President's Proclamation—The President's Message of December 6th, 1864—The Threatened Schism in the Republican Party and the Presidential Election of 1864—The Refusal of Congress to Count the Electoral Vote from any "State" which had Passed the Secession Ordinance—Reconstruction in Tennessee—The Twenty-second Joint Rule—Reconstruction in Tennessee Continued—Civil Government Re-established in Tennessee—The Thirteenth Amendment to the Constitution of the United States—The Proposition of Amendment as it Came from the Judiciary Committee of the Senate—The Passage of the Proposition by the Senate—The House Draft—Rejection of the Senate's Draft in the House—Reconsideration of the Senate's Measure in the House, and its Final Passage.

Some of the ardent admirers of Mr. Lincoln are disposed to dispute the proposition that he had any theory

of Reconstruction. It seems,

Did Mr. Lincoln

have any theory

of Reconstruction?

however, that they are unconsciously influenced in this by their desire to escape the conviction that Mr. Lincoln held an erroneous theory of Reconstruction. It does not seem that one can read impartially Mr. Lincoln's proclamation of December 8, 1863, without coming to the conclusion that Mr. Lincoln had a very decided notion on the subject. It is true that he said that it must not be understood that no other possible mode of Reconstruction than that proclaimed by him would be acceptable, but he laid down a very distinct mode, and he said it was the best he could suggest under existing impressions.

This plan recognized, in the first place, the continued existence of the "States" in rebellion as "States" of, and in, the Union. More

Mr. Lincoln's plan.

exactly, it regarded the rebellion against the United States within these "States" as the act of combinations of disloyal persons, and not as the act of the "States" at all. These combinations had subverted the loyal governments within these "States," but the "States" themselves were not disloyal, because they could not be. They were impersonal entities, incapable of committing treason or any other wrong. According to this view the work of Reconstruction consisted simply in placing the loyal element in a "State" in possession of the government of the "State."

In the second place, therefore, Mr. Lincoln's plan contained the principle that the work of Reconstruction was an executive problem. It was the work of the Executive, through the power of pardon, to create a loyal class in a "State" which had been the scene of rebellion, and it was the work of the Executive to support that class by the military power in taking possession of, organizing, and operating, the "State" government.

And so, Mr. Lincoln undertook to create such a class by constructing an oath of future loyalty and allegiance to the United States of the

Mr. Lincoln's oath

of allegiance, and

the loyal class to

be created by the

taking of this oath.

following tenor: "I, —— ——, do solemnly swear, in the presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder; and that I will in like manner abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified, or held void, by Congress or by decision of the Supreme Court; and that I will in like manner abide by and faithfully support all proclamations of the President during the existing rebellion having reference to slaves, so long and so far as not modified by the Supreme Court. So help me God;" and by ordaining that all persons who would voluntarily take this oath, unless they had been civil or diplomatic officers of the "so-called Confederate Government," or military officers thereof above the rank of colonel in the army or lieutenant in the navy, or had left seats in the United States Congress or judicial office under the United States, or had resigned commissions in the army or navy of the United States, in order to aid in the rebellion, or had been engaged in treating colored persons found in the United States service in any capacity, or white persons in charge of them, in any other manner than as prisoners of war, would be regarded as having re-established their loyalty and allegiance to the United States.

And he then undertook to put this class in possession of the functions and powers of the "loyal State governments" subverted by the rebellion, by proclaiming and declaring, "that whenever in any of the States of

Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one-tenth in number of the votes cast in such State at the Presidential election of the year A.D. 1860, each having taken the oath aforesaid, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others, shall re-establish a State government which shall be republican and nowise contravening said oath, such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the constitutional provision which declares that 'the United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion, and, on application of the Legislature, or the executive (when the Legislature cannot be convened) against domestic violence.'"

It is true that Mr. Lincoln was careful to say in this proclamation that "whether members sent to Congress from any State shall be admitted

The proviso

in this plan.

to seats, constitutionally rests exclusively with the respective Houses, and not to any extent with the Executive," but it is plain that he did not think the Houses could constitutionally use their power of judging of the qualifications and elections of their members to keep members from "States" reconstructed upon his plan from taking their seats on the ground that these "States" had not been properly reconstructed.

And it is also true that there occurs in the proclamation another paragraph which appears to militate against the theory of the perdurance of a "State" through the period of its rebellion against the United States. It reads: "And it is suggested as not improper that in

constructing a loyal State government in any State the name of the State, the boundary, the subdivisions, the constitution and the general code of laws as before the rebellion be maintained, subject only to the modifications made necessary by the conditions hereinbefore stated, and such others, if any, not contravening such conditions which may be deemed expedient by those framing the new State government."

It certainly may appear from this language that while Mr. Lincoln regarded it as convenient and desirable that the new "State" should be considered a continuation of the old "State," yet that he did not look upon it as absolutely necessary. Still, it seems more probable that this was only his cautious habit of leaving open a way of escape out of any position when necessity or prudence might require its abandonment than that he doubted the correctness of his idea of the indestructibility of the "States" in spite of the rebellion of a part of their population, or even of the whole of their population.

Mr. Lincoln was not alone in this view of the nature of the "States" of the Union and the problem of Reconstruction. His able Secretary of

Seward's idea of

Reconstruction,

and the views

of Congress and

the Court.

State certainly agreed with him; the resolutions and acts of Congress down to that time may be better explained upon this theory than upon any other; and so far as the Supreme Court had dealt with the question, its dicta, if not its exact decisions, had indicated the same trend of opinion. The President felt, therefore, no hesitation in applying his plan in the specific cases that were in a condition for its realization.

Before treating of his reconstruction of Louisiana and Arkansas under this plan, however, there are two points of the proclamation which

Virginia not in need

of Reconstruction

according to President

Lincoln's view.

should be briefly noticed. The first is the omission of Virginia from the names of the "States" to which the proclamation should apply. The reason for this is simple, and easily understood. The President had always recognized what was called the Pierpont Government at Alexandria as the true government of Virginia. Virginia, therefore, according to his view needed no reconstruction. It belonged in the class with Kentucky and Missouri.

The other point is the proposition to found "State" government upon ten per centum of the population of the "State." Now we know that "State"

Ten per centum

"State" governments.

government in the federal system of the United States is local self-government. But local self-government cannot really exist where the part of the population holding the legal authority does not really possess the sinews of power; and where the conditions of the society are democratic, or anything like democratic, one-tenth of the population cannot really possess the sinews of power. The actual power to make their government valid, to enable their government to govern would have to come from the outside. While this may happen under certain temporary exigencies without destroying local self-government on the whole, yet it cannot be permitted as a principle upon which to build a local self-government, a "State" in a federal system. Provincial governments, Territorial governments may be sustained in that way, but the distinguishing principle of "State" government forbids it. It is simply not "State" government when holding in this way the power to govern, as the principle of its life, no matter what name we may give it. Upon this point, then, Mr. Lincoln's reasoning was crude and erroneous, and when applied was destined to result in mischievous error.

As far back as the first week in December of 1862 General Shepley, then Military Governor of Louisiana, had, by permission from the President,

Reconstruction in

Louisiana under

Mr. Lincoln's plan.

ordered an election for members of Congress, in the districts over which his jurisdiction extended. The President had cautioned him against any choice of Northern men at the point of the bayonet, and had declared to him that such a procedure would be "disgraceful and outrageous." The General heeded the warning, and two old citizens of

The election of

members of

Congress.

Louisiana, Messrs. Hahn and Flanders, were chosen, and were admitted by the House of Representatives to their seats. This happened in February of 1863, and it was certainly good evidence that the House of Representatives was, at that moment, resting on the theory of the perdurance of the "State" of Louisiana throughout the rebellion within its limits against the United States.

Things went no further than this, however, during the year 1863, the military situation requiring the whole thought and activity of the

The New Orleans

convention.

Government. On the 8th of January, 1864, however, a convention was held at New Orleans for the purpose of advancing the work of reconstruction. This convention requested General Banks to appoint an election for officers of the "State" government. The General complied, naming the 22d day of February following for the election, and the 4th of March for the installation of the officers so chosen. Mr. Hahn was elected

The election of a

governor.

and duly installed Governor, and was soon after declared by the President to be "invested, until further orders, with the powers hitherto exercised by the Military Governor of Louisiana." The next step was for the new Governor to order an election of delegates to a constitutional convention and the assembly of

The constitutional

convention of

April, 1864, and

the constitution

framed by it and

adopted by the

voters.

the same in convention, for the purpose of so amending and revising the constitution as to make it fit the new conditions created by the war. This was done in March and April of 1864, and an anti-slavery constitution was established for Louisiana. The instrument drafted and proposed by the convention was adopted by the voters. Eight thousand four hundred and two votes were cast upon the question of adoption, about sixteen per centum of the vote cast at the Presidential election of 1860. This brought the action of the voters within the President's ten per centum rule. The vote was almost five to one in favor of adoption. The President's scheme was now put to the practical test, both in Louisiana and Arkansas, during the spring of 1864.

Congress was, however, by this time becoming convinced that Reconstruction was a legislative problem, that is, a problem to be

The beginning

of resistance in

Congress to the

President's plan.

The Wade-

Davis bill.

solved by Congressional acts and constitutional amendment. This is evidenced not only by the fact that neither House would admit representatives from Arkansas elected under the new "State" organization to seats, but by the more pronounced attitude expressed in what is known as the Wade-Davis measure upon the direct question at issue. These gentlemen, Mr. Benjamin F. Wade and Mr. Henry Winter Davis, the former the chairman of the "Committee on the Rebellious States" in the Senate, and the latter the chairman of a committee having the same name and functions in the House, originated a bill and carried it through both Houses of Congress, which, for the first time, embodied the views of Congress on the subject of Reconstruction. This bill was finally passed on July 4, 1864, and it contained provisions of the following tenor: The eleven "States" which had passed

secession ordinances were all treated as rebellious communities, and the President was authorized to appoint a provisional governor for each. This governor should exercise all the powers of civil government in the community to which he might be appointed until "State" government should be recognized by Congress as restored therein. An oath of future allegiance to the Constitution of the United States was then prescribed, and the provisional governor in each "State" was ordered, whenever rebellion in his "State" should be suppressed, to direct the United States Marshal to enroll all the white male citizens of the United States, resident within the "State," in the respective counties of the "State," and give them the opportunity to take the oath of allegiance to the United States. The bill then directed that when a majority of such citizens should take this oath, they might be permitted to elect delegates to a convention, which convention might take action for the establishment of "State" government. The bill disqualified all persons who had held any office, civil or military, "State" or Confederate, in rebellion against the United States, or who had voluntarily borne arms against the United States, from voting for delegates, or from being elected as delegates, to the convention. The bill then provided that the convention thus elected and assembled might form a "State" constitution, but must insert in it clauses abolishing slavery, repudiating all debts, "State" or Confederate, created by, or under the sanction of, the usurping power, and disqualifying all persons who had held office civil or military, "State" or Confederate, under the usurping power, except civil offices merely ministerial, and military offices below the rank of colonel, from voting or being elected governor or members of the legislature. The bill then provided for the submission of the constitution so formed to the voters,

and if ratified by a majority thereof, required the provisional governor to certify the same to the President. It then provided that the President, after obtaining the consent of Congress thereto, should proclaim the new "State" government as established, and as the constitutional government of the "State," after which Representatives and Senators in Congress, and electors of the President, might be chosen in said "State." Finally, the bill abolished slavery at once in all the rebellious "States" and imposed penalties upon all persons attempting thereafter to hold anyone in involuntary servitude; and declared all persons who should thereafter hold office civil or military, "State" or Confederate, in the rebel service, except an office purely ministerial or under the grade of colonel, not to be citizens of the United States.

A brief analysis of this bill will show that Congress was nearer to some doctrine on the subject of Reconstruction than was the President.

Analysis of

this measure.

In the first place, Congress claimed Reconstruction as a legislative problem. This was undoubtedly the true theory upon that point. In the second place, Congress required the loyalty to the United States of at least a majority of the white adult males as the basis of "State" government, local self-government. That also was undoubtedly true political theory as has been already explained. In the third place, Congress asserted the power to abolish slavery within the limits of those "States" whose legislatures or conventions had passed the ordinances of secession. That is, Congress dealt with these districts not as "States" of the Union, but as territories or districts subject to the exclusive authority of the central Government. Congress was here beginning, at least, to act upon the idea that the districts in rebellion did not perdure, as "States," throughout the rebellion, but had lost thereby the forms, powers and functions of "State" governments, and were neither out of the Union nor in the Union as "States," but were under the central Government of the Union as territory inhabited by a population disorganized as to local government. This was also sound political science, and the President ought to have heeded its teachings.

But he did not. He did not, it is true, veto the bill. He simply allowed the session to expire without signing it. This having happened

The President's

attitude toward

the bill.

The President's

proclamation

of July 8, 1864.

in less than ten days from the time it was submitted to him, the bill failed, as provided in such cases by the Constitution. He, however, issued on the 8th of July a proclamation in regard to the subject, in which he objected to the setting aside of the "free State constitutions and governments already adopted and installed in Arkansas and Louisiana;" doubted the competency of Congress to abolish slavery within the "States;" expressed the hope and expectation that this might be done for the whole country by constitutional amendment; declared his willingness to have the loyal people in any of the rebellious "States" reconstruct their governments upon the Congressional plan, if they should choose to do so; but declared also his unwillingness to commit himself inflexibly to any single plan of restoration; and virtually asked the voters to make the difference between himself and Congress upon the subject an issue in the coming Presidential election.

This was one of the boldest acts of Mr. Lincoln's career as President, and it is little wonder that men of so much intelligence, courage and

The Wade-Davis

protest against

the President's

proclamation.

tenacity as Messrs. Wade and Davis did not allow the proclamation to go unanswered. Congress had adjourned, as we have seen, before the appearance of the proclamation. There was, therefore, no way for Congress as a whole to make immediate answer. Messrs. Wade and Davis believed that the public interests would suffer if the answer should be postponed until the next meeting of Congress. They, therefore, issued a protest against the proclamation over their own names. The protest was printed in the New York Tribune of August 5, 1864. It was an intemperate arraignment of the President. It declared, among other things, that "a more studied outrage on the legislative authority of the people had never been perpetrated;" that the President had "greatly presumed on the forbearance which the supporters of his Administration" had "so long practised, in view of the arduous conflict in which" they were "engaged and the reckless ferocity of" their "political opponents;" that he must understand that their support was not of a man but of a cause; and that he must confine himself to his executive duties, and leave political reorganization to Congress.

Such denunciations of the President's purposes could have but one effect, viz., the strengthening of his hands by the support of the people, who so generally trusted him, in the election of 1864. It injured Mr. Davis so much that he failed of even a renomination for his seat in Congress.

The President, on the other hand, used his triumph with great tact and moderation. He made no reference, in his message of December 6, 1864,

The President's

message of

December 6, 1864.

either to his proclamation or to the protest which had been so fiercely hurled against it. He simply informed Congress that important movements had occurred during the year "to the effect of molding society for durability in the Union;" and that "12,000 citizens in each of the States of Arkansas and Louisiana" had "organized loyal State

governments, with free constitutions, and" were "earnestly struggling to maintain and administer them." He also spoke of the gratifying situation and movements in Maryland, Kentucky, Missouri and Tennessee.

It may be that Mr. Lincoln did not interpret his great victory at the polls in November preceding as a specific approval of his

The threatened schism

in the Republican

party, and the

Presidential election

of 1864.

Reconstruction policy. In the spring and early summer of 1864, the Republican party was threatened with schism largely upon the subject of Reconstruction. Eight days before the meeting of the regular nominating convention of the party, that is on the 31st of May, some three hundred and fifty men, representing, or professing to represent, the more radical element of the party, met in convention at Cleveland, Ohio. General John Cochrane of New York was made chairman of the body, and General John C. Frémont and General John Cochrane were nominated by it for the presidency and vice-presidency of the United States. The twelfth section of the platform provided, "that the reconstruction of the rebel States belongs to the people, through their representatives in Congress, and not to the Executive."

The regular convention met June 7th at Baltimore, and adopted a platform which took no sides in regard to Reconstruction, but simply sought to rally all Union men around the President for the purpose of saving the Union and putting an end to the rebellion. Many war Democrats took part in it who favored Lincoln's ideas of Reconstruction, and many Republicans who did not. The Democratic convention met at Chicago August 27th and adopted a platform which virtually proclaimed the war a failure, and demanded a cessation of hostilities preparatory to a compromise with the Confederates. Their nominee, General McClellan, with whom was associated on the ticket Mr. George H. Pendleton of Ohio, repudiated the platform but accepted the nomination and made the race.

Under the condition of schism in the Republican ranks, his chances seemed at first fair. But on September 21st, Generals Frémont and Cochrane, the nominees of the radical Republicans, withdrew from the contest, and the reunion of the Republican party on the Baltimore platform was effected. It was thus a question whether the overwhelming electoral vote for Lincoln and Johnson, two hundred and twelve to twenty-one for McClellan and Pendleton, meant the approval of Lincoln's views and acts in Reconstruction, and it certainly behooved the President to exercise some caution in so interpreting it, especially as there was no such wide difference in the popular vote, the McClellan electors having received 1,835,985 votes to 2,330,552 for the Lincoln electors. There is no question, however, that the President still believed in the correctness of his method and was determined to pursue the course upon which he had entered.

Neither was there any sign manifested that Congress would desist from pressing its views of its own powers in the matter. Both Houses had

No change in the views

of Congress caused by

the Presidential election.

The refusal of Congress

to count the electoral

vote from any "State"

which had passed the

secession ordinance.

refused to admit members from the reconstructed "States," and now they passed a joint resolution, on February 4th, 1865, which prohibited the counting of any electoral votes for President and Vice-President in the election of 1864, from "States" which had passed the secession ordinance. Elections had been held in Louisiana and also in Tennessee, and this resolution was intended to prevent the counting of the votes which the persons chosen electors for Louisiana and Tennessee should send in. The resolution was sent to the President for his signature. He

hesitated for several days, but approved it at last on the day that Congress counted the electoral votes, February 8th. In doing so, however, he addressed a message to Congress informing the two Houses that he had signed it out of deference to their views, and saying that "in his own view, however, the two Houses of Congress, convened under the twelfth article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal; and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all rights of the Executive to interfere in any way in the matter of canvassing or counting electoral votes, and he also disclaims that, by signing said resolution, he has expressed any opinion on the recitals of the preamble or any judgment of his own upon the subject of the resolution." The recitals of the preamble referred to read thus: "Whereas, the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas and Tennessee rebelled against the Government of the United States, and were in such condition on the 8th day of November, 1864, that no valid election for electors of President and Vice-President of the United States, according to the Constitution and Laws thereof, was held therein on said day, etc."

Louisiana, which had fulfilled the President's conditions of reconstruction, was thus included in this list, and also Tennessee,

Reconstruction

in Tennessee.

where by order of Governor Andrew Johnson, the candidate for Vice-President on the Lincoln ticket, an election of electors had been held. Tennessee had not, at the time of the counting of the

electoral vote, completed any process of reconstruction. The convention, called at Governor Johnson's instigation to meet at Nashville for the purpose of nominating candidates for Presidential electors, had called a constitutional convention to meet in Nashville on December 19th, following the Presidential election, for the purpose of undertaking the work of reconstruction. Hood's advance upon Nashville delayed its meeting, however, until January 3d. This convention took the old constitution of Tennessee as its starting-point and subjected it to a pretty thorough revision in the direction of a "free State government." It also prescribed a rather stiff test oath for all persons offering to vote upon the adoption of the amendments, an oath which not only promised future loyalty to the Constitution of the United States, such as Lincoln had prescribed, but which also required the taker of it to swear that he was an active friend of the Government of the United States, and an enemy of the so-called Confederate States. The amended constitution had not, however, been submitted to the voters at the date when Congress counted the electoral vote, that is, before the 8th of February, 1865, and of course no "State" government had been elected under the amended constitution. The vote upon the constitution occurred on the 22d of February, and the election of the Governor and the members of the Legislature under it occurred on March 4th.

The case of Tennessee did not from this point of view appear as strong as that of Louisiana. But it is difficult to see how the Republicans could have consistently rejected the vote of Tennessee after having nominated and elected a citizen of Tennessee as Vice-President of the United States. It is certainly implied in the Constitution of the United States that no man is eligible to the office of Vice-President unless he be at the time of his election a citizen of a "State" of the Union. The Constitution implies that the Vice-President shall have the same qualifications as the President; and it distinctly says that in giving their vote, the electors in each "State" shall vote for two persons, "of whom one at least shall not be an inhabitant of the same State with themselves." If an inhabitant of Tennessee could be lawfully Vice-President of the United States, it does certainly seem implied that Tennessee was, at the time, a "State" of the Union in regular standing.

However this may have been, the President was certainly correct in saying that Congress was vested with full power over the count of the electoral vote, and that the Executive had no control over it whatsoever. It was a bit of harmless good humor that he signed the resolution as a perfunctory matter, and it was calculated to improve the temper of the somewhat irritated members of Congress.

Congress was not, however, formally notified of the fact that he had signed the measure until after the counting of the vote had been

The twenty-second

joint rule.

finished, and the two Houses met the exigency by the enactment of what was known as "the twenty-second joint rule," according to which the consent of both Houses was required to count the electoral vote from any "State" or any body or place professing to be a "State." As a matter of fact, the Vice-President, Mr. Hamlin, declared that he had in his possession returns from the "States" of Louisiana and Tennessee, but held it to be his duty not to present them, and he did not present them. He knew that the President had signed the joint resolution, although Congress had not been officially notified of it, and he acted under the resolution as law. The joint rule would have required the presentation of these votes to the joint meeting of the two Houses, and would have required the concurrence of the two Houses, acting separately, to have included them in the count. The joint rule was, therefore, not applied to the case for which it was enacted, but it remained unrepealed for more than ten years, and then showed itself a sort of Nemesis to its creators.

Tennessee pursued, however, the course of reconstruction upon which she had set out. Her test oath, as we have seen, required virtually that

Reconstruction in

Tennessee continued.

the basis of her reorganization should be the men who had remained loyal throughout the rebellion. It differed thus from Mr. Lincoln's oath, which rehabilitated those who would promise future loyalty. The vote in favor of the new constitution, which was the old constitution of the "State" amended by articles abolishing slavery, nullifying secession, and repudiating the debt created in aid of the rebellion, was more than twenty-five thousand, nearly twenty per centum of the vote for Presidential electors in 1860. This certainly much more than fulfilled all of Mr. Lincoln's conditions.

Governor Johnson issued his proclamation on February 25th, 1865, declaring the adoption of the new constitution, and ordering the

Civil government

re-established in

Tennessee.

election of the Governor and legislative members under it for March 4th. W. G. Brownlow was chosen Governor. The newly elected legislature did not meet, however, until April 2d, and Mr. Brownlow was not inaugurated as civil Governor until April 7th. As Mr. Johnson was inaugurated Vice-President on March 4th, he had been obliged to lay down the military governorship on that date, in fact, a few days before, and Mr. Brownlow had been appointed in his stead. Upon Brownlow's inauguration as civil Governor, the military régime in Tennessee was formally ended. Lincoln acquiesced certainly in this change.

It remained now for Congress to show its attitude, when the Senators and Representatives from Tennessee should present themselves for admission to seats in the two Houses. As this could not happen until the following December, the history of this point must be deferred until the events between March 4th and December 4th are related.

The experiences of the year 1863 with the slavery problem had convinced the President and the leaders of the Republican party in Congress that

The Thirteenth

Amendment to the

Constitution of the

United States.

abolition must be effected by a constitutional amendment. The military acts of the President in this direction were, as all the purely military measures of the Executive, temporary, and with the re-establishment of peace would cease to have force; and it was by this time pretty clear that but few of the "States" would abolish slavery by their own act. Already on January 11, 1864, had the proposition for a constitutional amendment abolishing slavery throughout the length and breadth of the United States been presented in the Senate by Mr. John B. Henderson of Missouri, and referred to the Judiciary Committee of that body for consideration and report.

The language of the first article of Mr. Henderson's proposition read: "Slavery or involuntary servitude, except as a punishment for crime, shall not exist in the United States." When it came back from the Judiciary Committee, as reported by Mr. Trumbull, it was called Article XIII., and read: "Sec. 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in the United States or any place subject to their jurisdiction. Sec. 2. Congress shall have power to enforce this article by appropriate legislation."

It will be advantageous in our further consideration of this article to recall briefly the reasons for these divergencies. The language used by

The proposition of

amendment as it

came from the

Judiciary Committee

of the Senate.

the Judiciary Committee corresponds almost exactly with the wording of the ordinance of the Northwest Territory of 1787; and it is entirely evident that the Judiciary Committee had that act in mind when it reported the article. Mr. Henderson's proposition was that slavery or involuntary servitude should not exist in the United States. He well understood that it did not require a constitutional amendment to abolish slavery from those parts of the country where "States" had not been formed. He knew that Congress could do that. The Judiciary Committee, however, did not think it wise or necessary to "make two bites of a cherry." They preferred to make their prohibition apply to the whole country. They knew that the phrase United States was capable of being interpreted to mean only that part of the country where "States" existed, and they preferred and intended to make their prohibition of slavery extend to the whole country. From abundant caution they used the words United States, with the additional words "any place subject to their jurisdiction," in order to cover all territory over which the flag of the Union should fly in sovereign power.

The second section, giving to Congress special power to enforce this article, seems, at first, unnecessary, because according to the last paragraph of Section 8, Article I., of the Constitution, Congress is vested with the authority to make all laws necessary and proper to carry into execution all the powers vested by the Constitution in any department or officer of the Government. This abolition of slavery was, however, a restriction on the "States." It laid a new limitation upon their powers, and hence it was thought that Section 8 of Article I. might not apply in the execution of such a provision against the "States." But if we regard the provision from the point of view of the rights of an individual to his freedom against any "State" law to the contrary, then we must see that the amendment does invest the United States courts with the power to impose the restriction in behalf of the individual seeking deliverance from the attempt of a "State" to enslave him or to continue his enslavement. And once the power vested in the courts to do this the general provision of Article I., Section 8, will certainly apply. The resolution offered by the Judiciary Committee passed the Senate by the requisite majority on the 8th of April, 1864.

During this same period, Mr. William Windom, of Minnesota, offered in the House of Representatives a resolution upon the subject in the

The House

draft.

identical words of the Senate's resolution. It was referred to the Judiciary Committee of the House, February 15, 1864. While it lay in the room of the Committee, Mr. Stevens offered a substitute for it, which read: "Slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, is forever prohibited in the United States and all its Territories." This is another bit of evidence for the proposition that what was meant by the words "or any place subject to their jurisdiction" in Mr. Trumbull's resolution was all parts of the country not enjoying "State" government in local matters.