Essays on the Civil War and Reconstruction and related topics

ESSAYS ON THE CIVIL WAR
AND RECONSTRUCTION

AND

RELATED TOPICS

BY

WILLIAM ARCHIBALD DUNNING, Ph.D.

PROFESSOR OF HISTORY IN COLUMBIA UNIVERSITY

THE MACMILLAN COMPANY

LONDON: MACMILLAN & CO., Ltd.
1904

All rights reserved

COPTBISHT, 1897,

By the MACMILLAN COMPANY.

Set up and electrotyped. Published December, 1897. Reprinted August, 1904.

^'^y&/s^

//

J. S, Cashing & Co. — Berwick & Smith Co.
Norwood, Mass., U.S.A.

CHARLOTTE LOOMIS DUNNING

PREFATORY NOTE

Of the essays included in this volume all but
one — that on "The Process of Reconstruction"
— have been published before during the last
eleven years : four in the Political Science Quar-
terly, one in the Yale Review, and one in the
" Papers of the American Historical Association."
For the purpose of their present appearance all
have been subjected to revision, which has resulted
in some cases in considerable modifications. The
first five essays are devoted immediately to various
phases of the Civil War and Reconstruction. The
last two, while not concerned exclusively with
those topics, have nevertheless such a relation to
the legal and political questions treated as to jus-
tify their inclusion in the volume.

To the younger generation of reading men at
the present day the military history of the Civil
War is familiar or readily accessible ; the constitu-
tional and political history is neither. As to the
Reconstruction, the term is to most people merely

vm PREFACE

a synonym for bad government, and conveys no
idea of the profound problems of statecraft that
had to be solved between 1865 and 1870. The
essays collected in the following pages have been
written with reference to this situation. If in any
degree they shall have contributed, either through
statement, implication, or even omission, to throw
light on the actual history of the time with which
they deal, the end of the collection will have
been attained.

Lake Sunapee, N.H., Sept. 9, 1897.

NOTE TO THE REVISED EDITION

For the sake of greater homogeneity and with
a view to completeness in the general survey of
Reconstruction, the final essay in the first edition
has been omitted, and for it has been substituted
the essay on "The Undoing of Reconstruction,"
which appeared in the Atlantic Monthly in 1901.

April 14, 1904.

CONTENTS

PAGE

The Constitution of the United States in Civil

War I

The Constitution of the United States in Re-
construction 63

Military Government during Reconstruction . 136

The Process of Reconstruction . . . .176

The Impeachment and Trial of President John-
son 253

Are the States Equal under the Constitution? 304

The Undoing of Reconstruction .... 353

IX

THE CONSTITUTION OF THE UNITED
STATES IN CIVIL WAR

The culmination of the differences between the
sections in a definite political act occurred at a
moment when the government was in the hands
of that party whose principles were most suscepti-
ble of adaptation to the policy of the secessionists.
Though the direct question of state or national
supremacy was not met in the platform of either
of the great parties in i860, all the traditions of
the Democracy were on the side of a strictly lim-
ited central government. For many years, now,
the accepted narcotic for quieting any nervous-
ness caused by threats against state rights had
been the soothing formula : " Each government
is sovereign within its sphere." The assertion in
December of i860 that South Carolina's *' sphere"
included the right to dissolve the Union, called
for some decisive action in spherical delimitation.

President Buchanan had been with the extreme
Democrats on the Territorial question. The rights
and equality of all the states he had insisted on
maintaining with the utmost care. But the de-
mand that he should acknowledge what after all
is only the logical conclusion of the state-rights
B i

2 THE CONSTITUTION OF THE

doctrine, was more than he was prepared to accede
to. His message, on the meeting of Congress in
December, was a striking illustration of the diffi-
culty with which all thoughtful Democrats^ were
confronted by the action of South Carolina./ Any
such state right as that of secession, he claimed,
was " wholly inconsistent with the history as well
as the character of the federal constitution " ; and
his argument in support of this view contained
practically all that had ever been said on the sub-
ject. Still he was far from excluding the idea of
a " sphere " by which the central government was
limited. ''This government," the President stated,
** is a great and powerful government, invested
with all the attributes of sovereignty over the
special subjects to which its authority extends."
Not one man in the United States, probably,
would have denied that. The whole constitu-
tional development of the country had proceeded
upon exactly that doctrine. But the President
did not penetrate to the root of the difficulty by
explaining definitely how the scope of those special
subjects was to be determined. He did indeed
refer to the wisdom of "the fathers" in adopting
the rule of strict construction of the constitution ;
but all the world knew the unsatisfactory nature
of that formula. No better illustration of its use-
lessness was needed than the results that were
derived in the message itself from the application
of the principle in the present crisis.

UNITED STATES IN CIVIL WAR 3

After reaching the conclusion that there was no
constitutional right in a state to secede, he next
examined the position of the executive under the
circumstances. Following an opinion of Attorney-
General Black,^ he concluded that existing laws
did not empower him to bring force to bear to
suppress insurrection in a state " where no judi-
cial authority exists to issue process, and where
there is no marshal to execute it, and where, even
if there were such an officer, the entire population
would constitute one solid combination to resist
him." His conclusion itself was reached by an
exceedingly strict construction of the law of 1795,
in reference to calling out the militia.^ Having
thus disclaimed any power in himself to resort to
arms, he put the question : " Has the constitution
delegated to Congress the power to coerce a state
into submission which is attempting to withdraw,
or has actually withdrawn from the confederacy } "
Not being able to discover such a power among
those delegated to Congress in the constitution,
and not considering it " necessary and proper for
carrying into execution " the enumerated powers,
the President could not answer the question in the
affirmative. "Without descending to particulars,"
he said, " it may be safely asserted that the power
to make war against a state is at variance with the
whole spirit and intent of the constitution."

1 McPherson, History of the Rebellion, p. 51.

2 I Statutes at Large, 424.

4 THE CONSTITUTION OF THE

Such was the rather disheartening result of an
examination of the situation from a strict-construc-
tionist standpoint. A state had no right to secede,
and the federal government had no right to pre-
vent it from seceding. It was evident that if such
were the true state of the case, a right must be
evolved from somewhere to fill the vacuum. Much
abuse has been heaped upon Mr. Buchanan as the
originator of this constitutional paradox. Far
from being responsible for it, however, he was
only unfortunate in having officially to proclaim
the disagreeable consequence of a long-established
theory of governmental relations. The fixed form
in which for years the doctrine of sovereignty
had been enunciated by every department of the
government was that referred to above. The
relative force of federal and state action, when in
conflict, was a question that had been sedulously
avoided. Once only, in 1832, had the issue been
fairly presented, but the result of the nullification
controversy had given no conclusive answer. iThe
Supreme Court had maintained an unbroken line
of precedents on the double sovereignty basis. ^
It had asserted the supremacy of the federal laws,
so far as they were within the powers granted or
implied in the constitution, but it had admitted
that many cases of dispute could arise in which
the judiciary could not be called upon to give
judgment. In such questions, of a political rather

^ Cf. Brightly's Federal Digest, p. 142.

UNITED STATES IN CIVIL WAR 5

than a judicial character, the final authority as to
the constitutionality of a given law was, by the
doctrine of *' spheres," undetermined. Though
the ultra state-rights school of Calhoun had given
a perfectly clear and definite solution to the prob-
lem, and Webster on the other hand had been
equally explicit in his contradictory answer, it
must be admitted that the general course of gov-
ernmental action, and more important still, per-
haps, the prevailing sentiment of the people as a
whole, had followed the middle line of which the
conservative Madison was a conspicuous adviser.

From this standpoint the only constitutional
course in case of a conflict of the " sovereignties "
was to deny that such a thing was possible, eulo-
gize the constitution as the greatest extant produc-
tion of the human intellect, point out the dreadful
consequences that would follow the recognition of
supremacy in either claimant, and end by compro-
mising the difficulty in such a way as to furnish
precedents for both sides in the future. , It would
be erroneous to maintain that this method of action
was as unprofitable as it was illogical. On the con-
trary, it was probably the only course that could
have brought the United States intact through to
the year eighteen hundred and sixty. But more
than one of the nation's true statesmen foresaw
that it was only a question of time when " dodging
the issue " would cease to give satisfaction as a
principle of constitutional construction, i

6 THE CONSTITUTION OF THE

It was not understood by President Buchanan,
or by the mass of the people, that the secession of
South Carolina was the knell of the old principle.
Mr. Buchanan promptly adopted the time-honored
method of meeting the difficulty. His message in
December, i860, eulogized the constitution, and
affirmed the supremacy of the general government
in its sphere ; he referred with emphasis to the
reservation of rights to the states, and recoiled
with horror from the idea of using force to pre-
serve the Union, even if the power to do so were
conferred. To Congress was left the devising
of measures necessary to the circumstances, the
President's only recommendation being an ex-
planatory amendment to the constitution. The
amendment, he thought, should deal not with the
fundamental question, but with the status of slavery,
so as forever to " terminate the existing dissensions,
and restore peace and harmony among the states." ^

The executive having thus failed to free itself
from the shackles which precedent imposed, what
did Congress effect in the way of meeting the
emergency .^ In the House a special committee
of one member from each state was appointed, to
consider as much of the President's message as
referred to the perilous state of the country, A
special committee of thirteen was likewise appointed
in the Senate. The most casual examination of
the enormous mass of propositions submitted to

1 McPherson, History of the Rebellion, p. 50.

UNITED STATES IN CIVIL WAR 7

these committees, as well as to the houses directly,
will reveal the confidence that still remained in
the '* compromise " method of determining contro-
versies, as well as the utter hopelessness of its
successful application to the existing difficulty.^

The attention of Congress was directed chiefly
to such measures as were embodied in the report
of the House special committee, and in the resolu-
tions proposed in the Senate by Crittenden of
Kentucky. The Senate's special committee re-
ported a failure to agree upon any general scheme
of adjustment. The only proposition of the
House committee's report to receive effective ap-
proval was that proposing an amendment to the
constitution in these words : ** No amendment
shall be made to the constitution which will au-
thorize or give to Congress the power to abolish or
interfere, within any state, with the domestic in-
stitutions thereof, including that of persons held to
labor or service by the laws of said state." This
proposition secured the necessary two-thirds in
both the House and the Senate, only the radical
Republicans opposing it,^ and it was ratified by
the legislatures of Ohio and Maryland before its
uselessness was appreciated.

It was upon the Crittenden resolutions, in the

1 For digest of the propositions, see McPherson, Rebellion, p. 52
et seq. Cf. Bancroft, " The Final Efforts at Compromise," in Politi-
cal Science Quarterly, VI, 401 (September, 1891).

2 McPherson, Rebellion, p. 59.

8 THE CONSTITUTION OF THE

Senate, that the friends of Union through con-
cihation based their final hopes. The plan was
directed entirely to a settlement of the slavery
question. It provided for constitutional amend-
ments dividing all United States territory by the
36° 30' line, and recognizing slavery south of the
line, while prohibiting it north. States formed
from this territory were to be admitted upon reach-
ing a population requisite for a member of Con-
gress, and were to make their own choice as to
slavery in their constitutions. The power to abol-
ish slavery within its jurisdiction was denied to
Congress, if the places concerned should be within
the limits of states permitting slavery. The inter-
state slave trade was put beyond the interference
of Congress, and the United States was required
to compensate any owner for a fugitive slave vio-
lently rescued from him, at the same time having
action to recover the amount from the county in
which the rescue was effected. Such a scheme
did not seem to offer much consolation to the
Republicans, who had made it their cardinal prin-
ciple that slavery was too horrible a thing to come
under the express recognition and protection of a
free government. The resolutions were opposed
by the united front of the Republican senators,
and finally, after the withdrawal of most of the
Southern delegation, they were rejected, on the
second of March, by a vote of 19 to 20.^

1 McPherson, Rebellion, p. 64 et seq.

UNITED STATES IN CIVIL WAR 9

The Congress and the administration came to
an end on the fourth of March, 1861. How did
the constitutional question stand then ? Had any
advance been made toward an answer to the vexed
question of sovereignty ? The record sketched
above tells the gloomy tale. An emasculated
national sovereignty had been proclaimed by the
executive ; a vigorous state sovereignty had been
actively asserted by seven of the commonwealths
of the Union ; and no position whatever had been
assumed by the federal legislature.

I. Principles of the Appeal to Arms

It would be misleading to pass without notice
the idea of executive duty on which Mr, Buchanan
based his action in reference to the forts and other
property of the United States in the South. His
denial of the right of secession precluded, of course,
any recognition of the independence of the with-
drawing states. Accordingly, a demand of the
commissioners from South Carolina for the re-
moval of a hostile military force from her soil was
simply disregarded, and no admission was allowed
of her claim of eminent domain. Attorney-Gen-
eral Black had advised the President that "the
right of the general government to preserve itself
in its whole constitutional vigor by repelling a
direct and positive aggression upon its property

10 THE CONSTITUTION OF THE

or its officers, cannot be denied." ^ The attitude of
the administration was therefore manifested in its
orders to the commander of Fort Sumter to stand
strictly on the defensive, but to act vigorously if
assailed.

In his personal defence, written after the war,
Mr. Buchanan assigns as a reason for maintaining
this position, that he was above all things desirous
of avoiding bloodshed, and had high hopes of
adjusting the difference by negotiation.^ He had
most convincing assurances that any aggressive
action on his part would promptly lead to the
withdrawal of several hesitating states ; and, with
the slender means at his disposition, he concluded
that a preservation of the status qno was the most
feasible as well as the most patriotic plan. It
must be remembered, however, that Mr. Buchanan
never abdicated the duty of administering justice
and collecting the revenue in the seceded states.
He declared his intention of performing these
duties as soon as Congress should pass laws req-
uisite to the novel circumstances. In case of
action upon this line, armed collision with the
state power would have resulted from the attempt
to collect United States taxes. As a matter of fact,
however, the opening of hostilities was precipitated
on the issue of defending government property.

It will be profitable to determine as precisely as

P

/ 1 McPherson, Rebellion, p. 52.

^ ' 2 Mr. Buchanan's Administration on the Eve of Rebellion, ch. ix.

UNITED STATES IN CIVIL WAR \\

possible the theory of the constitution and of gov-
ernmental relations upon which the exercise of
force by the new administration proceeded. Mr.
Lincoln's inaugural address was extremely moder-
ate in tone. He did not announce any policy dis-
tinguishable from that of his predecessor. The
constitutional perpetuity of the Union was his cen-
tral proposition, /and from this he deduced the
nullity of all state ordinances of secession, and the
necessity of enforcing the laws in all the states.
But while, like Buchanan, Lincoln announced an
intention to preserve the status quo till time should
soothe excited passions, one feature of the former
President's theory was conspicuously absent from
the inaugural address : the " rjght to coerce a
state " was not even alluded to. In view of the
importance that had been ascribed to the search
for such a right, the omission was significant.
Under the impulse of actual hostilities, however,
the contempt of the President for the state-sover-
eignty doctrine assumed a decidedly aggressive
form. His message to Congress at the opening
of the extra session on July 4 contained a severe
denunciation of the dogma. The time had come
for assuming a position that should at least be
clear and intelligible ; and the President planted
himself unequivocally on the theory of national
sovereignty. \As his definition of a " sovereignty "
he accepted this : ** A political community without
a political superior.",

12 THE CONSTITUTION OF THE

Tested by this [he said], no one of our states except Texas
ever was a sovereignty. And even Texas gave up the char-
acter on coming into the Union. . . . The states have their
j/^^/z/jj IN the Union, and they have no other legal j/<2/?A9. . . .
The Union is older than any of the states, and, in fact, it
created them as states. Origmally some dependent colonies
made the Union, and in turn the Union threw off their old
dependence for them, and made them states, such as they are.
Not one of them ever had a state constitution independent of
the Union. 1

Such were the steps by which Lincoln reached
his position of national supremacy. If a vote had
been taken in 1861, in the Northern states alone,
on the abstract constitutional question at issue, the
President's view would in all probability have been
defeated. But so skilfully were the theoretical
assumptions blended with appeals to the Union
sentiment of the people, that the whole doctrine
enunciated in the message was accepted without
discrimination. The same passion for territory
which had made popular the extension of the
boundaries to the 'Pacific, now clamored for the
maintenance of the domain in its integrity. One
theory of the constitution could not maintain, it;
the other could, and the other must be adopted.

The promptness of Congress in adopting meas-
ures for enabling the President to carry out his
doctrine is sufficient evidence that the legislative
department was one with the executive in his
views of the constitution. The object of the war

1 McPherson, Rebellion, p. 127.

UNITED STATES IN CIVIL WAR 13

was the subject of numerous resolutions proposed
in both houses. But the majority showed no dis-
position to discuss abstractions when actions would
more clearly proclaim their opinions. Hence, but
one formal declaration of intention came to a vote.
This was a resolution to the effect that the war
forced upon the country by the disunionists of the
South was

not waged in any spirit of oppression, or for any purpose of
conquest or subjugation, or purpose of overthrowing or inter-
fering with the rights or established institutions of those [the
Southern] states, but to defend and maintain the supremacy of
the constitution, and to preserve the Union with all the dig-
nity, equality and rights of the several states unimpaired. ^^

It is beyond question that this declaration ex-
pressed the feelings of two-thirds of the Northern
people at this time. The resolution, though not
passed in joint form, was adopted by both House
and Senate separately, with no substantial differ-
ence in the wording. In each case the vote was
almost unanimous. On its face, the end of the war
is proclaimed to be, not the overthrow of slavery,
but the preservation of the Union. In respect to
the dignity and rights of the states, the expres-
sion of intention is clearly inconclusive ; for there
were very widely varying views as to what was
the extent of such dignity and rights under the
supreme constitution. Were the rights to be pre-
served those that were claimed by the state-sover-

1 McPherson, Rebellion, p. 286.

14 THE CONSTITUTION OF THE

eignty politicians, or only such as were conceded
by the centralizing school ? All that appeared un-
mistakable was that some form of state organiza-
tion was to be maintained when the rebellion was
subdued.

. But, even without any more definite declaration
of Congress, it cannot be questioned that the doc-
trine of sovereignty enunciated by the President's
message was the doctrine upon which the legisla-
ture planted itself for the struggle. Whatever
may have been the defects of the theory, it certainly
did not lack clearness and consistency. The na-
tion is sovereign ; the states are local organizations
subordinate to the nation. The general govern-
ment represents the nation, and is limited in no
way by the local state governments, but only by
the federal constitution. Of this constitution, how-
ever, the departments of the central government
are the final interpreters ; the limitations of the
constitution, therefore, are practically guarded only
by the mutual responsibility of the departments in
action, and by the accountability to the people in
the elections.

II. The Presidential Dictatorship

The circumstances in which the government
found itself after the fall of Sumter were entirely
unprecedented. The President was o^bliged to re-
gard the uprising of the South as a simple insur-

UNITED STATES IN CIVIL WAR 1 5

rection ; but the only parallel case, the Whiskey
Insurrection in Washington's administration, was
so insignificant in comparison, that from the very
"beginning a system of original construction of the
constitution had to be employed to meet the varied
occasions for executive as well as legislative action.
Long before the end of the war, the principles
thus evolved had become so numerous and so far-
reaching in their application, as entirely to over-
shadow the most cherished doctrines of the old
system.

/From the very outset the basis of the govern-
/ment's war power was held to be the necessity of
*^preserving the nation* The limit of its application
was not the clear expressions of the organic law,
but the forbearance of a distracted people. That
this forbearance extended so far as it did, is signifi-
cant. The "necessity" thus sanctioned was not
the exigency of individual liberty that prompted
the Declaration of Independen^ce, but the mortal
peril of a conscious nationality. \ For a third time
in a hundred years, the conviction of a fact beat
down the obstacles of established forms. The
revolution of 1776 secured liberty; that of 1789
secured federal union ; and that of 1861-67 secured
national unity.^^ In each case traditional prin-
ciples wer&'-felt to be incompatible with existing
facts, and the old gave way to the nev/. The
question presented to the administration by the
commencement of hostilities was : Has this gov-

l6 THE CONSTITUTION OF THE

ernment the power to preserve its authority over
all its territory ? The answer of the old school of
constitutional lawyers was : " Yes, so far as it is
conferred by the constitution and the laws" ; but
the answer we derive from the actual conduct of
the war is " Yes " v/ithout qualification.

Immediately upon the fall of Sumter, the asser-
tion of the new doctrine began. Before the assem-
bling of Congress, July 4, a series of proclamations
by the President called into play forces deemed
necessary to the preservation of the nation. The
calling out of the militia was based upon the law
of 1795. Buchanan had declined to consider this
law as applicable to the present circumstances.
His delicacy, however, was a phase of his scruples
about coercing a state — scruples entirely foreign
to his successor. It is enacted by the law in
question that

whenever the laws of the United States shall be opposed, or the
execution thereof obstructed in any state, by combinations
too powerful to be suppressed by the ordinary course of judicial
proceedings, or by the powers vested in the marshals by this
act, it shall be lawful for the President of the United States
to call forth the militia of such state, or of any other state or
states, as may be necessary to suppress such combinations,
and to cause the laws to be duly executed.^

Buchanan's interpretation of this was that the
militia was to be employed only as a posse comi-

1 I Statutes at Large, 424.

UNITED STATES IN CIVIL WAR \*J

tattis to assist in executing a judge's writ.^ While
this may have been the immediate idea of the
framer, there was not the remotest allusion to such
an intent in the law itself, and it was no extraordi-
nary stretch of construction for Lincoln to act in
accordance with the plain terms of the statute.
His proclamation avoided any reference to the
state governments.

Four days after the call for militia, the Presi-
dent's purpose of ignoring the connection of the
state governments with the rebellion was put to a
severe test in his proclamation of a blockade of the
ports of the Cotton States. He was obliged to
speak of "the pretended authority" of those states,
but only to declare that persons who, under such
authority, molested United States vessels would be
treated as pirates. This assumption by the execu-
tive of the right to 'establish a blockade was rather
startling to conservative minds. It seemed like
a usurpation of the legislative power to declare
war. For blockade is an incident of actual war-
fare, and involves the recognition of belligerent
rights. The constitutionality of the President's
action, however, was affirmed by the Supreme
Court in the Prize Cases,^ and hence. Congress
having acquiesced, it has the sanction of all three
departments of the government. Accordingl)^ the
President, as commander-in-chief, can determine,

1 Attorney-General Black's opinion : McPherson, Rebellion, p. 51.

2 2 Black, 635.

c

1 8 THE CONSTITUTION OF THE

without reference to Congress, the time when an
insurrection has attained the proportions of a war,
with all the consequences to person and property
that such a decision entails.

Further action by the President previous to the
meeting of Congress included a call for the enlist-
ment of forty thousand three-year volunteers,^ and
the increase of the regular army by over twenty
thousand men, and the navy by eighteen thousand.
Mr. Lincoln himself doubted the constitutionality
of these measures.

Whether strictly legal or not [he says, they] were ventured
upon under what appeared to be a popular demand and a
public necessity, trusting then as now that Congress would
readily ratify them. It is believed that nothing has been done
beyond the constitutional competency of Congress. -

This frank substitution of a " popular demand "
for a legal mandate, as a basis for executive action,
is characteristic of the times. The President's
course was approved and applauded. Howe, of
Wisconsin, proclaimed in the Senate that he ap-
proved it in exact proportion to the extent to which
it was a violation of the existing law.^ The gen-
eral concurrence in the avowed ignoring of the
organic law emphasizes the completeness of the

1 Under the law of 1795 the term of service of the militia, when
called out by the President, was limited to one month after the next
meeting of Congress.

2 Message of July 4, 1861. McPherson, Rebellion, pp. 125-6.

3 Globe, 1st sess., 37th Cong., p. 393.

UNITED STATES IN CIVIL WAR 19

revolution which was in progress. The idea of
a government limited by the written instructions
of a past generation had already begun to grow
dim in the smoke of battle.

The remaining subject dealt with in the Presi-
dent's proclamations was the suspension of the
writ of habeas corpus. Southern sympathy in
Maryland had taken so demonstrative a form that
summary measures of repression were resorted to
by the government. General Scott was authorized
by the President to suspend the writ of habeas
corpus at any point on the military line between
Philadelphia and Washington. This assertion by
the executive of an absolute control over the civil
rights of the individual in regions not in insurrec-
tion excited rather more criticism than the measures
which would unpleasantly affect only the rebellious
states. A case was promptly brought before
Chief Justice Taney for judicial interpretation. ^
Justice Taney's opinion took strong ground against
the constitutionality of the President's act. The
clause of the constitution touching the matter says :
*' The privilege of the writ of Jiabeas corpus shall
not be suspended, unless when in cases of rebellion
or invasion the public safety may require it."^
The implication is that in the cases mentioned the
privilege may be suspended, but the clause is silent

1 The case of John Merryman. For all the proceedings and the
court's opinion, see McPherson, Rebellion, p. 155.

2 Art. I, sec. 9, clause 2.

20 THE CONSTITUTION OF THE

as to who shall do it. Precedent and authority
were certainly with the chief justice in regarding
the determination of the necessity as a function
of the legislature. But to have awaited the meet-
ing and action of Congress in the present case
might have been to sacrifice the government. Lin-
coln therefore availed himself of the latitude of
construction possible by the wording of the clause.
Attorney-General Bates sustained the President
in an elaborate opinion. His ground was that in
pursuance of the obligation to execute the laws,
the President must be accorded the widest discre-
tion as to means. The use of military force to
suppress insurrection was authorized by the con-
stitution, and when such means had been deter-
mined upon by the executive, all the incidents of
warlike action must necessarily be included. Nor
could the judicial department, being a co-ordinate
and not a superior branch of the government,
interfere.^

The position of the executive in this matter was
entirely consistent with that assumed in the estab-
lishment of the blockade. Granting the right in
the President to decide when war has technically
begun, both the powers in question spring naturally
from the recognized authority of the commander-
in-chief. In the interval between April 12 and
July 4, 1 86 1, a new principle thus appeared in the
constitutional system of the United States, namely,

1 For the opinion, see McPherson, Rebellion, p. 158.

UNITED STATES IN CIVIL WAR 21

that of a temporary dictatorship. All the powers
of government were virtually concentrated in a
single department, and that the department whose
energies were directed by the will of a single man.

The dictatorial position assumed by the Presi-
dent was effective in the accomplishment of two
most important results, namely, the preservation
of the capital and the maintenance of Union senti-
ment in the wavering border states. These ends
achieved, the administration of the government
fell back once more into the old lines of depart-
mental co-ordination. Congress labored with the
utmost energy to fill the gaps which the crisis had
revealed in the laws. Small heed was given to
the demands of the minority for discussion of the
great constitutional questions that constantly ap-
peared. The decisive majorities ^ by which the
Republicans controlled both houses enabled work
to be transacted with great vigor.

The first imperative duty of the legislature was
to provide for defining the nature and extent of
the insurrection which the President reported as
existing. It has been shown how the executive
had declined to recognize the state organizations
as elements of the uprising against the general
government. Congress necessarily adopted the
same policy. Its measures were made to refer
primarily to combinations of individuals against

1 Practically 28 in a Senate of 50, and 92 in a House of 178.
See Tribune Almanac for 1862, pp. 17 and 19.

22 THE CONSTITUTION OF THE

the laws of the United States/ But in the act
of July 13, 1 86 1, section five, the attitude of the
state governments toward such combinations was
taken into consideration as a means of determin-
ing the location and extent of the insurrection.
In this section the obligation upon the state au-
thorities to support the laws of the United States
was distinctly assumed, and the refusal to fulfil
this obligation was made a sufficient ground for
proclaiming all the inhabitants of the delinquent
community public enemies. The law in question,
commonly called the ''non-intercourse act,"^ re-
enacted the main features of the law by which
President Jackson was empowered to collect the
duties in nullification times ; the fifth section pro-
vided further, that when the militia should have
been called forth by the President to suppress the
insurrection,

and the insurgents shall have failed to disperse by the time
directed by the President, and when said insurgents claim to
act under the authority of any state or states, and such claim
is not disclaimed or repudiated by the persons exercising the
functions of government in such state or states, or in the part
or parts thereof in which said combination exists, nor such
insurrection suppressed by said state or states, then and in
such case it may and shall be lawful for the President, by
proclamation, to declare that the inhabitants of such state,
or any section or part thereof, where such insurrection exists,
are in a state of insurrection against the United States ;
and thereupon all commercial intercourse by and between the

1 Public Acts of the 37th Cong., 1st sess., ch. iiL

UNITED STATES IN CIVIL WAR 23

same and the citizens thereof and the citizens of the rest of
the United States shall cease and be unlawful so long as such
hostiUty shall continue.

A proclamation in pursuance of the authority
thus granted was issued by the President on
August 16. From that time the condition of terri-
torial civil war legally and constitutionally existed
in the United States, with all the consequences of
such a condition which the law of nations recog-
nizes. Congress had exercised its power to declare
war, or, what has been admitted to be the same
thing, to recognize a state of war as existing.
From the time of such recognition, the acts of
the President involving technical war powers were
unquestionably in accordance with the constitution.

III. The War Power in Relation to Civil Rights
in the South

Upon the passage of the ** non-intercourse act,"
both political departments of the government had
given their recognition to the fact that all the
inhabitants of certain portions of United States
territory were at war with the government and its
loyal supporters. The duty of each department
thereupon was to use all constitutional means to
overcome in the shortest time possible the resist-
ance to their authority. To what extent a strict
interpretation of the organic law would reveal

24 THE CONSTITUTION OF THE

adequate powers, was a question ; but the spirit
of the people and general ideas of necessity were
convenient sources of authority that never failed of
application when the direct mandate of written law
was lacking. A question that arose immediately
was in reference to personal and property rights
of dwellers in the insurrectionary districts. Such
persons were still, on the theory of the government,
citizens of the United States ; but were they, as
such, entitled, under the present circumstances, to
the protection of their civil rights which is normally
secured by our system }

War is the negation of civil rights. Granting
the power in Congress to designate certain citizens
as public enemies in the technical sense, the exer-
cise of that power puts in the hands of the govern-
ment a control over the life, liberty and property
of all such citizens, limited only by the dictates of
humanity and a respect for the practice of nations.
The insurgents become, in short, belligerent en-
emies, with the rights and duties which interna-
tional law ascribes to such. From the moment
that they assume that character the constitutional
guarantees of civil liberty lose their effect as
against the executive. It becomes authorized to
enforce submission to the laws by bullets, not by
indictments. "Due process of law" ceases to be
the necessary condition to a deprivation of civil
rights. All the safeguards so carefully constructed
by the constitution for the protection of citizens

UNITED STATES IN CIVIL WAR 25

of the United States against oppression by their
officers and legislators disappear when resistance
by those citizens to law becomes so formidable as
to be deemed war.

Such was the theory upon which the exercise of
the war power was based by all three departments
of the government. The Supreme Court, though
divided, in the Prize Cases, upon the question of
the exact time when the attitude of belligerency
could be assumed, was unanimous in respect to
the consequences after that time had arrived. Jus-
tice Nelson, dissenting, said :

There is no doubt the government may, by the compe-
tent power, recognize or declare the existence of a state of
civil war, which will draw after it all the consequences and
rights of war between the contending parties, as in the case of
a public war. . . . The laws of war, whether the war be civil
or inte?' ge?ites, convert every citizen of the hostile state into a
public enemy. 1

At the outbreak of the insurrection, then, two dis-
tinct courses lay open for the government to pursue.
It could elect to repress the uprising by the civil
power, through process of the courts, with the
military arm as the marshal's /d^i-j"^/ the insurgents
then would be subject to the treatment of ordinary
criminals. Or, on the other hand, the rebels could
be recognized as belligerents and subdued by the
exertion of military power alone. In the latter

1 2 Black, p. 693.

26 THE CONSTITUTION OF THE

case, the insurgents would seem to be entitled to
the treatment which public law secures to armed
public enemies. But the question early arose,
could not the government follow both courses at
the same time, and be guided in its dealings with
the rebels by international or by constitutional law,
at its discretion ? Could it not, for example, hang
as traitors rebels taken in battle as prisoners of
war ? A practical application of some principle
was early called for. In the fall of 1861 the crews
of several Confederate privateers were brought as
captives to New York, and were tried for piracy.
The proceeding was in accordance with Mr.
Lincoln's blockade proclamation, which ended
with a declaration that rebels molesting United
States vessels should be thus dealt with. But
though a conviction was obtained in at least one
case, the penalty was never enforced, for the reason
that the Richmond government announced its in-
tention to visit upon an equal number of prisoners
in its hands exactly the same treatment that was
accorded to the Confederates.^

The course of the administration in reference
to the exchange of prisoners and other matters
was dictated by the same considerations that were
operative in the case of the privateersmen. It was
desired to secure all the advantages which flowed
from the exercise of the war power by the govern-
ment, while not conceding belligerent rights to
1 Annual Cyclopedia for 1861, pp. 585, 591.

UNITED STATES IN CIVIL WAR 2/

those against whom that power was employed.
In respect to life and liberty the practices of inter-
national war were followed, in order to avoid the
barbarism of the lex talionis ; though in theory the
responsibility of the Southerners for their acts to
the regular courts of law was always maintained.
As to property, however, the course of the govern-
ment was not so clearly defined. Measures look-
ing to extensive if not general confiscation were
broached early in the war. The basis for such
a proceeding gave rise to animated controversy,
and it was in connection with this discussion that
the fullest light was thrown on the relation of the
United States government to its citizens in the
rebel states.

The first step taken by Congress toward confis-
cation was the act of August 6, 1861.^ This made
it the duty of the President to seize, confiscate and
condemn all property used in aiding, abetting or
promoting the present or any future insurrection
against the government of the United States.
Section four provided for the forfeiture of slaves
employed in any military or naval service against
the government and authority of the United States.
This act was passed by virtue of the war powers
of Congress. It was a legislative authorization for
the exercise of an acknowledged belligerent right.
For the purpose of freeing the slaves, the ultra
anti-slavery men were perfectly willing to sacrifice

1 Public Acts of the 37th Cong., ist sess., ch. Ix.

28 THE CONSTITUTION OF THE

their old scruples about regarding men as property,
and the provision on this subject was defended on
the same ground as the rest of the bill.

This first act was somewhat crude and unsatis-
factory in detail, but was in principle quite definite
and distinct. War had been recognized as exist-
ing, and Congress had exercised the constitutional
power of making ''rules concerning captures on
land and water." But during the next session of
the Thirty-seventh Congress, the full development
of the war gave rise to a more bitter spirit, which
manifested itself in more radical and questionable
measures. Many propositions looking to confisca-
tion and emancipation were brought forward in
both houses, and the debates upon these subjects
were long and acrid. The dominant party became
quite distinctly divided on the general policy of the
war; and, behind all, the idea of finding in the
existing crisis a definite settlement of the slavery
question assumed a steadily increasing importance.

When it had been determined that the crimes
of the secessionists called for vindictive punish-
ment, serious constitutional difficulties were found
to beset the path of the avengers. The House
first passed a bill which surmounted all obstacles
with gratifying ease. It simply provided that all
property of whatever description, belonging to cer-
tain described classes of persons, was forfeited to
the government of the United States, and declared
lawful subject of seizure and of condemnation.

UNITED STATES IN CIVIL WAR 29

The judiciary committee of the Senate, to whom
this and other bills were referred, recognized some
of the objections that could be raised to the House
proposition, and so reported a modification of it.
By this it was enacted that the forfeiture should
take effect only upon the property of persons
"beyond the jurisdiction of the United States," or
of persons in any state or district of the United
States where, on account of insurrection or rebel-
lion, the ordinary judicial process could not be
served upon them ; and the title to the property
was to vest in the United States immediately
upon the commission of the act, so that any sub-
sequent alienation by the former owner would be
void.

The objections raised against both these bills,
on principles of both constitutional and interna-
tional law, were very strong, and after long debates
proved effective to prevent the passage of either.
But a compromise bill, patched up from the many
propositions that had been submitted during the
discussion, became at last the law.^ The first
four sections fixed very severe penalties for the
crimes of treason and rebellion, the latter being an
addition to the catalogue of felonies. These pro-
visions followed the suggestions of the more con-
servative Republicans, like Collamer, of Vermont,
who expressed a strong desire to get at the prop-
erty of the rebels, but insisted upon doing it by

1 Public Acts of the 37th Cong., 2d sess., ch. cxcv.

30 THE CONSTITUTION OF THE

regular judicial procedure.^ Sections five, six,
seven and eight referred to confiscation proper.
The President was directed to cause the seizure of
all the property, of whatsoever kind, belonging to
specified classes of persons, namely, officers of the
rebel army or navy, officers of the civil administra-
tion of the so-called Confederate States, governors,
judges or legislators of any of said states, ex-offi-
cials of the United States hereafter holding office
under the Confederate States, and persons owning
property in loyal states who should give aid and
comfort to the rebellion. Further, if any other
persons, being engaged in the rebellion, or giving
it aid and comfort, should not cease within sixty
days of a proclamation to be issued by the Presi-
dent, such person's property should be liable to
seizure in like manner. The property so seized
was to be proceeded against by action in rem in
the United States courts, and condemned and sold
as enemies' property, and the proceeds were to be
used for the support of the army of the United
States.

This act assumed the power in Congress to
deprive several millions of persons of all their
property, and this by simple legislative act. By
the theory of our constitution, such power must
be granted by the organic law, or be inferable
from some clearly granted power. There was
no claim of an express grant. By implication,

1 Globe, 2d sess., 37th Cong., p. 181 2.

UNITED STATES IN CIVIL WAR 31

the power was held to be deducible from the
clauses authorizing Congress ''to declare war,"
" to make rules concerning captures on land and
water," "to provide for calling forth the militia to
. . . suppress insurrections," and finally, '' to make
all laws which shall be necessary and proper for
carrying into execution the foregoing powers."
On the other hand, the constitution contains the
following prohibitions : '* No bill of attainder . . .
shall be passed;" "no person shall be . . . de-
prived of . . . property, without due process of
law ; nor shall private property be taken for pub-
lic use without just compensation ; " and finally,
" no attainder of treason shall w^ork . . . forfeiture
except during the life of the person attainted."
The exercise of authority under the grants above
enumerated involved of necessity the violation of
these prohibitions. Respect for both at the same
time was inconceivable. The only escape from
the dilemma was to assume that the constitution
contemplated a state of affairs to which the pro-
hibitions were inapplicable. And that indeed was
the position taken by the advocates of confiscation.
The existence of a state of war was held to bring
into the sphere of legislative action any measures
necessary to weaken the enemy that were recog-
nized by the great system of international practice.
International law thus was set up as the source
of Congress' power. But in the modern practice
of civilized nations the general confiscation of

32 THE CONSTITUTION OF THE

enemies' private property is unknown. It is as
obsolete as the poisoning of wells in an enemy's
country. As a rule, real estate is left to its owners,
and movables are appropriated only so far as mili-
tary necessity, as judged by the commander in the
field, seems to demand it.^ Some vague idea of
such a justification seems to have suggested the
clause devoting the proceeds of the confiscations
to the support of the army. But it was rightly
argued that the determination of the army's neces-
sities was a function of the President, and not of
Congress, and that legislation in such a case was
superfluous. 2 The justification of the Confiscation
Act by international law thus was no less difficult
than by constitutional law pure and simple. Only
as an abstract right of war, independent of all
convention and precedent, could the proceedings
contemplated by the act be consistently defended.
It appeared, however, from further develop-
ments, that the act was not based upon the war
power alone. After it had been sent to the Presi-
dent for approval, it became known that he pro-
posed to veto it. His objections were ascertained,
and an explanatory resolution was hurriedly adopted
to meet his views.^ Its most important provision
was that no punishment or proceedings under the
act should "be so construed as to work a forfeiture

1 Halleck, International Law, pp. 456, 457, and authorities cited.
^ Cf. Lincoln's message, McPherson, Rebellion, p. 198.
8 Public Resolutions, 2d sess., 37th Cong., no. 63.

UNITED STATES IN CIVIL WAR 33

of the real estate of the offender beyond his natu-
ral life." This was an effort to reconcile the act
with the prohibition in the constitution against for-
feiture for treason ; the futility of the effort ap-
peared from the fact that the forfeiture contem-
plated by the act was in no sense the result of an
attainder of treason. Attainder of treason does
not result from a proceeding in rem, but from
conviction in a criminal proceeding in personam}
The effect of the resolution, therefore, was simply
to impair the utility of the act, while in no way
affecting the constitutional question. ^

Again, it was maintained that the action in rem
provided for in the act was such " due process of
law" as the constitution contemplates in the de-
privation of property. This construction, however,
is wholly contrary to the spirit of the bill of rights.
The theory of the action in rem is that the "thing"
is an instrument, a necessary participant, as it
were, in the violation of some law. The provision
of the constitution refers to criminal procedure
against the person, and to apply it in other cases is
mere distortion of the organic law. Any attempt
to reconcile the act with the guarantee of civil
rights leads to absurdities. Such was^ the con-

1 Cooley, Constitutional Limitations, 4th ed., p. 317.

2 As illustrating the struggles of the courts in construing the act,
see decisions of District Judges Betts and Underwood, and others,
collected in the Annual Cyclopedia for 1862-64, under the title
" Confiscation."

34 THE CONSTITUTION OF THE

sistent position taken by the radical advocates of
confiscation, and such is the only position justified
by the logic of facts.

But very important results are secured by pur-
suing further the line of argument adopted by the
radicals. The benefits of the constitution must
be denied to those who refuse to recognize its
authority. Such denial, however, does not re-
lieve the offenders of their responsibilities under
the fundamental law. Circumstances may force
the government to regard certain citizens of the
United States as enemies engaged in war. In
such a state of affairs, many provisions of the
constitution become inoperative. In other words,
since the government itself is the judge of the cir-
cumstances, the government may suspend certain
parts of the organic law. But not only that. The
suspension of the constitution is not absolute.
While the right of jury trial, for example, may be
denied under the authority of Congress, it may
also be allowed. A man's property may be seized
by virtue of the war power, but at the same time
the man himself may be tried and hung for trea-
son under the regular civil procedure. *' We may
treat them [the rebels] as traitors, and we may
treat them as enemies," said Senator Trumbull,
" and we have the right of both belligerent and
sovereign, so far as they are concerned."^ Such
is undoubtedly the theory to be deduced from all

1 Globe, 2d sess., 37th Cong , p. 943.

UNITED STATES IN CIVIL WAR 35

the circumstances of the government's action in
reference to confiscation.

Sections nine to twelve of the Confiscation Act
had reference to negroes. Slaves of persons en-
gaged in rebellion against the government of the
United States, coming into the lines of the army,
or captured from their masters, or found in places
once occupied by rebel forces, were declared free.
Fugitive slaves were not to be given up except to
such owners as would declare under oath that they
had not borne arms against the United States in
the present rebellion, or given aid and comfort
thereto. The President was authorized to employ
negroes in suppressing the rebellion, and also to
make provision for the colonization of the freed-
men in some foreign country.

The treatment of the negro question was freely
admitted by all the friends of the confiscation bill
to be a very important, and was asserted by some
to be the most important, feature of the act. Vex-
atious complications had arisen in disposing of the
fugitive slaves that could not be kept from coming
within the lines of the army. The President's pa-
tience had been severely tried in his efforts to re-
strain the ardent abolition spirit of some of his
generals.^ While he looked forward to the pos-
sibility of a situation in which military necessity
would justify emancipation, yet he considered the

1 Especially Fremont and Hunter. See McPherson, Rebellion,
pp. 247, 251.

36 THE CONSTITUTION OF THE

political horizon, especially in the border states,
too threatening to permit precipitate action. But
the radicals in his party denounced his hesitation
as pusillanimous, and were only too ready to at-
tain their end through the legislative department.
Confiscation seemed an easy and suitable path by
which to penetrate the stronghold of slavery. By
the act of August 6, 1861, slaves used for the pur-
poses of the insurrection had been declared free.
The principle was that, under such circumstances,
slaves were contraband of war. But the basis of
the later law was the right to free a man's slaves
as a penalty for the master's participation in the
rebellion. There was no essential distinction be-
tween the right of Congress to confiscate choses ijt
actio7i and its right to take from the rebel his
claim to the services of a negro. The institution
of slavery was not touched, and the peculiar .signifi-
cance of these provisions lay in the fact that they
were dictated by a sentiment in the North that
would not long be satisfied with such moderate
measures.

By the Confiscation Act and the discussions inci-
dent to its consideration, the attitude and powers
of the United States government in respect to
such of its citizens as were proclaimed public
enemies were more or less satisfactorily deter-
mined. In the struggle between those who up-
held the restraints of the constitution and those
who considered only the limits of international law,

UNITED STATES IN CIVIL WAR 37

the government practically escaped all restrictions
whatsoever. Side by side with the doctrine that
all means looking to success in the war could be
employed against insurgent citizens, developed the
principle that a like absence of limitation charac-
terized the relations of the government to citizens
who were not public enemies. It was in connec-
tion with the civil rights of citizens in the loyal
states that a far-reaching conception of the war
power attained most distinct definition.

IV. The War Power ift Relatio7i to Civil Rights
in the North

The question as to the extent of the govern-
ment's authority over the life, liberty and property
of the individual in states not in insurrection was
complicated by the controversy over the proper
department for exercising such authority. It has
already been stated ^ that the action of the Presi-
dent in suspending the writ of habeas corpus of his
own accord in 1861 had excited a discussion of his
right to do it, and that Chief Justice Taney had
given an opinion against the right. The impotence
of the judiciary as against the executive, and the
neglect of Congress to take any action on the
matter, had left the administration in a position to
realize its own ideas of its powers. Arrests of dis-
affected persons and Southern sympathizers under

1 Sufra, p. 19.

38 THE CONSTITUTION OF THE

secret orders from Washington had gone on with-
out ceasing, and in no case was the service of the
great writ allowed. Not only in Maryland, and
the regions near the seat of war, but in the most
distant parts of the land, from Maine to California,
men were seized without any information as to the
charges against them, and were confined in forts
and prison camps. It was not denied by the
friends of the policy that frightful injustice was
often done, but that fact was rightly held to have
no bearing on the question of power involved. If
the constitution of the United States vested in the
executive, in time of war, absolute discretion as
to the means to be employed to carry on the war,
whatever evils resulted from the exercise of this
discretion must only be added to the aggregate of
misery of which a resort to arms is the cause, and
so must be regretted, but sternly endured.

For a year and a half after the beginning of
the war the arrest and detention of citizens as
" prisoners of state " went on without any formal
announcement as to the principles of the pro-
ceedings. Only when, in the autumn of 1862, a
draft had become necessary to recruit the army,
were the government's operations put upon a well-
defined basis. On September 24, a proclamation
was issued by the President,^ ordering, first, that
as a necessary measure for suppressing the exist-
ing insurrection, all persons " discouraging volun-

1 McPherson, Rebellion, p. 177.

UNITED STATES IN CIVIL WAR 39

teer enlistments, resisting military drafts, or guilty
of any disloyal practice^ affording aid and comfort
to the rebels," should be subject to martial law, and
liable to trial by courts-martial or military commis-
sions ; and second, that the writ of habeas corptis
should be suspended in respect to all persons ar-
rested or held by military authority. In this paper
the President formally assumed the right to pro-
claim martial law and to suspend the writ of habeas
corpus at his own discretion throughout the United
States. On this assumption the power both to
arrest and to detain a citizen — and, indeed, to put
him to death — was complete.

The basis of this proclamation is to be found in
the apparently unimportant phrase with which the
orders are introduced. The whole proceeding is
*' a necessary measure " of war. Granting that
the oath to "• protect and defend the constitution,"
and the mandate to '' take care that the laws be
faithfully executed," confer unlimited discretion
as to means, nothing can be said against the legal-
ity of the President's orders. But on any other
theory, it would be hard to justify them. The
fourth article of the amendments to the constitu-
tion guarantees the security of the people in their
persons against unreasonable seizures, and indi-
cates that arrests are to be made through special
warrants. On the theory under which the Presi-
dent acted in ordering arrests by military authority,
this article of the constitution has no application

40 THE CONSTITUTION OF THE

to times of civil war.^ It " speaks in reference to
the normal condition of the country only." When
war exists, the President has the right to arrest
and detain on his own motion ; the Fifth Amend-
ment, which forbids the holding of any one unless
on action of a grand jury, loses its force under
such circumstances. As the policy of confiscation
had been based on the nullity of constitutional
restrictions as to the legislature, so the policy of
military arrests was based on the nullity of those
restrictions as to the executive.

The proclamation of September 24, 1862, consti-
tuted a perfect platform for a military despotism.
The growing prominence of the emancipation
policy during this year had dampened the enthusi-
asm of the Northern masses for the war, and in
connection with the drafts the opposition to the
government grew very demonstrative. But this
only tended to make military arrests more fre-
quent. As a result the widespread discontent
with the administration's policy received addi-
tional stimulus, and the Congressional and state
elections of 1862 were disastrous to the dominant
party. Some action by the legislature then be-
came imperative. Bills touching the subject were
promptly taken up by Congress when it met in
December, but the discussions were so violent that

1 Binney, The Privilege of the Writ of Habeas Corpus (2d ed.,
Philadelphia, 1862), p. 55; Whiting, War Powers under the Consti-
tution, p. 176.

UNITED STATES IN CIVIL WAR 4 1

no result was reached till just at the close of the
session.

The interpretation of the clause of the consti-
tution relating to the suspension of the writ of
habeas corpus, was not, however, definitely decided
even then. It was admitted on all sides that the
general impression, from the foundation of the gov-
ernment, had been that the power of suspension
was in Congress. The insertion of the clause in
the article relating to Congress indicates that such
was the idea of the committee on style and re-
vision in the convention. As first presented to
the convention and referred to the committee of
detail, the clause contained the words " by the
legislature." 1 Tucker's Blackstone and Story's
Commentaries assume without discussion that Con-
gress alone can suspend the writ. The Supreme
Court indicated such an opinion in Bollman and
Swartwout.2 And especially significant of the
early idea is the fact that when, in 1807, a bill
was proposed suspending the writ in connection
with Burr's conspiracy, a long and violent debate
in the House disclosed not the slightest intimation
that any one suspected that the power was in the
President.^ The action of Mr. Lincoln's adminis-
tration, however, had been justified by opinions
from eminent lawyers, and officially by that of
the attorney-general. The grounds on which these

1 Elliot's Debates, V. 445. - 4 Cranch, 75.

« Annals of Congress, 2d sess., 9th Cong., p. 402 et seq.

42 THE CONSTITUTION OF THE

views were based were generally technical rather
than historical, and arguments were deduced from
the circumstances and necessities of the present
rather than from respect for the past.

Congress devoted itself to a course of proced-
ure based upon a recognition of matters as they
stood. The act of March 3, 1863,^ first author-
ized the President, during the rebellion, to sus-
pend the privilege of the great writ "in any
case throughout the United States, or any part
thereof." It then provided for the discharge of
such persons as were in duress, upon failure of
the grand jury to indict them, and for the judi-
cial examination within twenty days of all persons
hereafter arrested under orders of the adminis-
tration. To check the torrent of prosecutions
for malicious imprisonment that was threatening
United States officers everywhere, it was enacted
that the order of the President should be a suffi-
cient defence in any such action. In other words,
Congress declined to say whether or not the ad-
ministration had acted illegally, but went so far
as to protect it from any consequences if it had so
acted. Provision was also made for the removal
pf all suits arising out of acts done under execu-
tive authority, from the state to the federal courts.

So far as concerned the past course of the ad-
ministration, Congress undoubtedly took the wisest
steps possible under the circumstances. Indem-

1 Public Acts, 3d sess., 37th Cong., ch. Ixxxi.

UNITED STATES IN CIVIL WAR 43

nifying the executive officers against suits for
damages was a concession to the view that the
President was correct in assuming the right to
arrest and hold suspected persons ; while the
authorization to suspend the writ indicated that
the power to suspend was in Congress. The only-
constitutional principle that can be deduced from
the act as a whole is that the President may in
an emergency exercise the right to arrest and de-
tain individuals until Congress acts.

In pursuance of the authority of this act, Mr.
Lincoln proclaimed a general suspension of the
privilege of the writ of habeas corpus on Septem-
ber 15, 1863. The effect of the suspension was
limited to persons held as "prisoners of war,
spies, or aiders or abettors of the enemy," and
such as were amenable to the Articles of War.
How elastic these limits were may be judged by
the interpretation put upon ''aiders and abettors."

He is a public enemy who seeks falsely to exalt the mo-
tives, character and capacity of armed traitors, to magnify
their resources, etc. He who overrates the success ... of
our adversaries, or underrates our own, and he who seeks
false causes of complaint against the officers of our govern-
ment, or inflames party spirit among ourselves, gives to the
enemy that moral support which is more valuable to them
than regiments of soldiers, or millions of dollars.^

With such perfect facilities afforded by law, it
is scarcely to be wondered at that in many cases

1 Whiting, War Powers, p. 197.

44

THE CONSTITUTION OF THE

the practical construction of the proclamation was
the arrest of anybody who expressed dissatisfac-
tion with the administration. The boundary line
between political opposition to the President and
treason became extremely hazy in the eyes of the
President's agents.

In addition to the free exercise of the right
arbitrarily to arrest and hold citizens by military
authority, the practice grew up, early in the war,
of bringing arrested persons before military com-
missions and passing sentence upon them after
summary proceedings of a qiiasi-]\!i^\z\2X char-
acter. By the President's proclamation of Sep-
tember 24, 1862, all rebels and insurgents, and
their aiders and abettors, and all disloyal per-
sons generally, were declared subject to trial by
court-martial or military commission. The latter
organization had no legal existence in the United
States when the President thus conferred juris-
diction upon it. Its actual power, however, be-
came unmistakably manifest. It is to be noticed
that with the recognition of the military commis-
sion a complete judicial system existed outside of
the ordinary civil and criminal courts. The whole
process of arresting, trying, convicting and execut-
ing a man could be carried through without any
recourse to the constitutional judiciary, and with
no security whatever against the arbitrary will of
the military commander. Such a state of things
was held to be the necessary consequence of a

UNITED STATES IN CIVIL WAR 45

rebellion which called for the exercise of the war
power.

The Habeas Corpus Act of 1863 provided for the
trial of all political prisoners by the civil authority,
and thus seemed to cut off from the military courts
the jurisdiction over civilians. But in spite of this
the application of martial law continued in all the
Northern states. Efforts to secure a judgment of
the civil judiciary upon the validity of the extraor-
dinary tribunals all proved ineffectual till after the
war had ended. Then, in 1866, in the case of Ex
parte Milligan,^ the Supreme Court determined
their relation to the constitution.

According to United States army orders, the
military commissions were to administer the "com-
mon law of war," or, in other words, to execute
martial, as distinct from military, law.^ In assum-
ing the right to try citizens of loyal states by purely
military procedure, Mr. Lincoln asserted the exist-
ence of martial law, in its most unlimited sense,
throughout the whole United States. Martial law
is well understood to be practically no law —
merely the unregulated will of a military com-
mander, sanctioned by physical force. ^ Under its
sway the whole machinery of civil justice dis-
appears. The exigencies of active warfare bring

1 4 Wall. 2.

2 Ex parte Vallandigham, i Wall. 249; Ex parte Milligan,
4 Wall. 142.

^ See Garfield's argument, 4 Wall. 47.

46 THE CONSTITUTION OF THE

the theatre of actual army operations into this
condition by the very nature of the case. But
the question raised by the President's action was
whether there could be a constructive exigency of
this sort — whether martial law could supersede
civil law, not by the actual presence of contending
forces and the actual destruction of the civil ad-
ministration, but by the opinion of either the Presi-
dent or Congress that the necessity existed which
would justify the supersession. It cannot be de-
nied that the war was carried through on the latter
theory. The records of the War Department con-
tain the reports of hundreds of trials by military
commissions, with punishments varying from light
fines to banishment and death. ^ Congress, more-
over, asserted its control over the subject by indem-
nifying officers against prosecutions for acts done
under the President's orders organizing the com-
missions.2 It further gave legal sanction to the
miUtary tribunals in the Reconstruction Acts,
though here there was a doubt as to whether the
status of the region was that of peace or of war.^
But the judgment of the Supreme Court in Mil-
ligan's case was a clear and explicit denial of any
power in either executive or legislative department
to suspend the operation of the laws protecting

1 Digest of Opinions of the Judge Advocate General, p. 334.

2 Act of iMay 11, 1866.

8 See opinion of Attorney-General Hoar : McPherson, Recon-
struction, p. 477.

\

UNITED STATES IN CIVIL WAR 47

civil liberty. In the first place it was held that
the suspension of the privilege of the writ of ha-
beas corpus did not establish martial law, as had
been claimed by the executive. That act merely
shuts off for the time civil inquiry into the reasons
for military arrests. As to the main question, the
government claimed :

When war exists, foreign or domestic, and the country is
subdivided into military departments for mere convenience,
the commander of one of them can, if he chooses, within
his limits, on the plea of necessity, with the approval of the
executive, substitute military force for and to the exclusion of
the lawjs, and punish all persons as he thinks right and proper,
without fixed or certain rules.

The necessities of the service, it was argued, re-
quired the division of the loyal states into military
districts ; this, in a military sense, constituted them
the theatre of military operations and therefore
brought them under the authority of the com-
mander. This conclusion the court flatly rejected,
and sought some palpable objective fact that should
alone justify the existence of arbitrary rule. This
was found in the condition of the courts of justice.

Martial law cannot arise from a threatened invasion. The
necessity must be actual and present ; the invasion real, such
as effectually closes the courts and deposes the civil adminis-
tration. . . . Martial rule can never exist where the courts
are open, and in the proper and unobstructed exercise of their
jurisdiction.

48 THE CONSTITUTION OF THE

The safeguards thrown about the liberty of the in-
dividual by the constitution could be disturbed by
neither President, nor Congress, nor the judiciary,
except so far as concerned the writ of habeas
corpus. Physical force alone could override the
organic law.

The opinion of the court was dissented from by
four of the justices on a single point, namely, the
denial of the power in Congress to declare martial
law. That this power was in the legislature,
though not exercised during the war, was deduced
by the minority from the authorization to make
rules for the army and navy, in connection with the
exception in the Fifth Amendment, of " cases aris-
ing in the land and naval forces, or in the militia
in actual service in time of war or public danger." ^

The action of the political departments is in
direct contradiction of the judiciary on this vital
question of the war power. The whole subject of
extraordinary authority is involved in the deter-
mination of such a case as that of Milligan. To
maintain that the framers of the constitution con-
templated vesting in any man or body of men the
discretionary right to set aside any of its pro-
visions, seems too much like judging the past in
the light of the present. To believe that the nation
could have been preserved without the exercise of
such a discretionary power, involves too severe a
strain upon the reasoning faculties of the careful

i 4 Wall. 137.

UNITED STATES IN CIVIL WAR 49

student of the times. Two methods may be sug-
gested of reaching a satisfactory conclusion on the
question : either to consider that the war wrought
a great modification in the canons of interpretation
applicable to the organic law ; or to recognize the
fact that in the throes of the rebellion a new and
adequate constitution developed out of the ruins
of the old.

V. The War Power and the Slaves

All the circumstances connected with the origin
of the war conspired to render the attitude of the
government toward slavery the most delicate prob-
lem with which the administration had to deal.
From the first contact of the Northern armies with
Southern soil, questions arose that increased daily
in both number and perplexity. Many slaves
came into the control of the army, either through
flight or by capture, and the generals pursued
various policies as to the disposition to be made
of the blacks. The device of the astute Butler,
to seize them as contraband of war and then to
set them free, was readily adopted in many quar-
ters ; but for months the condition of affairs in the
border states caused the President to discounte-
nance any procedure which would strengthen the
idea that the war was becoming an anti-slavery
crusade. Generals Fremont and Hunter were re-
pressed with considerable abruptness when they

50

THE CONSTITUTION OF THE

undertook to apply a policy of emancipation in
their respective departments, and Mr. Lincoln
announced that he reserved to himself, as com-
mander-in-chief, the exercise of whatever power
was necessary in connection with this subject.

Meanwhile the abolition sentiment was rapidly
gaining strength in the North, and with the grow-
ing sense of the meaning of war power the idea of
general emancipation by military authority became
increasingly attractive. President Lincoln long
withstood the pressure that was put upon him to
adopt this idea. He had grave doubts both as to
his power in the premises and as to the wisdom
of the policy. Eventually he gave way, and the
Emancipation Proclamation was the result. The
significance of this famous paper is generally mis-
understood. As indicating the definitive adoption
by the executive of a radical policy on a vital issue,
the proclamation was of the highest importance ;
but it did not strike the shackles from a single slave.
The proclamation did indeed declare the slaves in
certain districts free : but as these districts were
carefully defined so as to include only such as were
under control of the Confederates, there could be
no claim that the slaves therein were free in fact ;
and the basis of the proclamation was so formu-
lated as entirely to preclude the contention that
they were free in law. Mr. Lincoln gave as his
authority for the proclamation " the power in me
vested as commander-in-chief of the army and navy

UNITED STATES IN CIVIL WAR 51

of the United States, in time of actual armed rebel-
lion against the authority and government of the
United States"; and he described the act as "a
fit and necessary war measure for suppressing said
rebellion," and as "warranted by the constitution
upon military necessity." These expressions give
to the paper the character of a military decree,
pure and simple. The calling up or setting free
of the enemy's slaves was both in theory and by
precedent an incident of a commander's authority,^
though it had always been looked upon as a des-
perate expedient. As military chief, then, Mr.
Lincoln was within his rights in declaring the
slaves free and in ordering his subordinates to
enforce his decree. So far as the blacks came
within the control of the army, their status was
changed to that of freedom. As to those beyond
the lines of the army, no change was effected ; for
it is the function of the military arm to effect
changes primarily in fact and only indirectly in
law. Had hostilities terminated before the whole
South was occupied by the armies of the United
States, there would have been no legal basis for
a claim to freedom on the part of the slaves in the
unoccupied regions. Even in the technically occu-
pied regions there would have been some ground,
in very many cases, for contesting the claim of
the blacks to freedom after the re-establishment of
normal conditions. Only by the adoption of the

1 Cf. Whiting, War Powers, p. 69 et seq.

52

THE CONSTITUTION OF THE

Thirteenth Amendment was the legal status of
the freedmen put upon a clear and indisputable
foundation.

The efficacy that was widely attributed to the
Emancipation Proclamation as definitely freeing
all the slaves in the Confederacy was a deduction
from the prevalent doctrine which permitted of
no distinction between the civil and the military
powers of the President. On a correct under-
standing of his war power, it can attach only to
his office as commander-in-chief of the army, and
can have no effect on the performance of his civil
duties. As chief civil executive, his actions relate
to the laws ; as chief officer of the army and navy,
he is concerned with situations where there is no
law. But in 1862 it was urgently insisted that a
state of hostilities effected the immediate absorp-
tion of civil executive in the commander-in-chief.
Hence to deny the instant validity of the Eman-
cipation Proclamation throughout the Southern
states, was considered equivalent to recognizing
the independence of those states. But the deduc-
tion was quite fallacious. As civil executive Mr.
Lincoln was still President of the whole United
States, South as well as North ; but as civil ex-
ecutive he could never have issued the proclama-
tion. Only as commander of the army did he
issue it; and the fact that his civil functions
embraced the whole territory of the Union could
in no way extend his military authority to regions

* UNITED STATES IN CIVIL WAR 53

where he had no army to command. The confused
thinking of the time on this point probably ac-
counts for the curious fact that the proclamation
was countersigned, not by the secretary of war,
but by the secretary of state. There seems to
have been some idea that this military decree
would be endowed with extraordinary efficiency
by the endorsement of the civil branch of the
administration.

While the President had been working con-
servatively toward the policy which he finally pro-
claimed. Congress had been pushing with rather
more vigorous strides toward the goal. The grow-
ing sentiment that the situation demanded the final
removal of the slavery question from politics found
expression first in assaults on the institution on the
lines of constitutional interpretation that had been
marked out by the Free-soil and Republican parties.
First in the District of Columbia and then in the
territories the powers that had long been held in
abeyance by threats of secession were in 1862
finally asserted.^ Much time and ingenuity were
expended on the project of compensated eman-
cipation in the border states, to which the Presi-
dent was so earnestly committed,^ but the radical
sentiment, stimulated by military reverses, was
heedless of such moderate methods and urged

1 For summary of war legislation on slavery, see Whiting, War
Powers, p. 393 et seq.

2 McPherson, Rebellion, p. 213 et seq.

54 THE CONSTITUTION OF THE

unceasingly the application of the war powers of
Congress to the desired end, both in seceded and
in loyal states.

We have already seen how adaptable the prin-
ciples of the Confiscation Acts were to the pur-
poses of emancipation in the rebel districts. Mr.
Lincoln was careful to point out in his message of
July 17, 1862/ that the method of setting free
slaves here employed did not involve the assump-
tion by Congress of the power to regulate the
status of slaves within a state. The slaves, he
showed, were forfeited to, and became the property
of, the national government in consequence of their
masters' crimes, and the government elected to set
them free rather than to hold or sell them. An-
other means employed by Congress to make in-
roads on slavery was the peremptory prohibition of
the return of fugitive slaves by the military author-
ities. By various prescriptions in the Confiscation
Acts and in the Articles of War the return of
fugitives to masters in the rebel states was ren-
dered practically impossible.

Still another device for effecting emancipation
was developed in the employment of negroes in
the army. There was here, however, no new prin-
ciple but merely a change of application. It was
first enacted that any slave of a rebel should, upon
entering the military service of the government,

1 McPherson, Rebellion, p. 197.

UNITED STATES IN CIVIL WAR 55

become free.^ But such a one would, under the
Confiscation Act, be assured of his freedom by the
mere fact of coming into the military lines ; so in
this particular the law involved no innovation. A
very distinct advance was made, however, in the
further provision that, if owned by rebels, the
mother, wife and children of such slave should
also be free. This was a direct and unqualified
assertion of the power to terminate the legal rela-
tion of master and slave, regardless of de facto
conditions, by act of Congress. The provision
was justified by the growing doctrine of military
necessity, which was held to warrant Congres-
sional as well as Presidential action. It was a
"necessary and proper" means for carrying into
effect the undisputed power to raise and sup-
port armies. As encouraging enlistments, it fell
clearly within the war powers of the legislature.
This line of reasoning was developed with ever-
widening scope as the war progressed and the dif-
ficulty of procuring troops increased. In the En-
rolment Act of 1864, which prescribed the drafting
of negroes,^ the principle was fully applied to the
states not in secession. Slaves, when drafted into
the service, received their freedom, but loyal owners
were entitled to compensation. Later the wives
and children of all persons in the army and navy

1 Act of July 17, 1862; McPherson, Rebellion, p. 274.

2 13 Statutes at Large, 11.

56 THE CONSriTUriON OF THE

were declared free.^ With this the efforts to main-
tain a connection with the constitution became far-
cical ; for the act was retrospective, and the acutest
intellect must fail to discern how future enlist-
ments would be encouraged by freeing the rela-
tives of persons who were already in the army
through conscription. In reality, however, little
attention was paid to this latest act. Slavery was
obviously on its last legs, and the Thirteenth
Amendment had already been submitted to the
legislatures.

VI. Principles and Tende?icies in the Exercise of
the War Power

Leaving out of account the dogma of state sov-
ereignty, it had been a matter of faith with most
of the people of the United States that the federal
constitution embodied a peculiarly effective solu-
tion of the problem of liberty versus authority.
Many rights of the citizen were guaranteed by
direct and unequivocal prohibitions upon the gov-
ernment. But in addition to these the eternal
tendency of government to encroach upon the
individual was held to be counteracted by three
principles: first, that no department of the gov-
ernment should exercise any power not delegated
to it in the constitution ; second, that through the
clear separation of the three departments — execu-

1 Joint resolution of March 3, 1865; '3 Stats, at Large, p. 571.

UNITED STATES IN CIVIL WAR 57

tive, legislative and judicial — each should act as
a restraint upon the others ; and third, that the
two most aggressive departments, executive and
legislative, should be subject to frequent judgment
by the people in the elections.
, From the beginning of the government's career
the efficiency of the first of these principles — that
of delegated powers — had been weakened by the
development of liberal construction under the doc-
trine of implied powers. But a limit to the impli-
cation of powers had always been recognized in the
positive prohibitions of the constitution. That is,
in selecting a "necessary and proper" means for
carrying out an expressly delegated power, none
could be chosen which was directly prohibited by
the constitution. Upon resort to the war power,
however, as v/e have seen, the prohibitions of the
constitution had to be entirely disregarded. And
the very first to go by the board were those that
concerned the immediate rights of life and liberty.
With the barriers down which had been so care-
fully constructed for the protection of these rights,
the invasion of other regions, protected not by
express prohibition but only by absence of delega-
tion, could not meet with much resistance. When
arrest without warrant, detention without hearing
and conviction without jury were daily incidents,
though distinctly forbidden, it could only seem
ridiculous to haggle over the right to make treas-
ury notes legal tender, merely because nothing was

58 THE CONSTITUTION OF THE

said about it in the organic law. The whole spirit
of war-time legislation compels recognition of the
fact that the principle of delegated powers ceased
to have great importance as a restraint upon
government.

Nor, when the war power was fully developed,
was any great influence exerted by the principle of
the separation and co-ordination of departments.
The judiciary simply became an "unconsidered
trifle " as a restraint upon the legislature and the
executive. As to the relations of the latter two,
a curious and interesting situation was dev^eloped.
On the plea of "necessity" each disregarded both
the doctrine of delegated powers and the explicit
prohibitions of the constitution. So far as the
President was concerned, the " necessity " under
which he acted was that of the military com-
mander— the subjective motive on which an offi-
cer acts in adopting measures for the safety of an
organized force, or for the success of its operations
in the field when civil law is overthrown. The
only " necessity " which could rationally be made
the basis of legislative action was that deducible
from the "necessary and proper" clause of the
constitution. Between this and military neces-
sity there is no connection, save in the identity
of words. But in the thinking of the war-time,
the two ideas were completely confused, and the
commander's privilege of doing whatever he re-
garded as likely to weaken the enemy was freely

UNITED STATES IN CIVIL WAR 59

employed as a warrant for Congressional action.
Both legislature and executive were on this theory
"above law." Hence while Congress was endowed
with authority to legislate entirely at its discretion,
the President was privileged at his discretion to
disregard all this legislation. Where such a con-
clusion was possible, the principle of departmental
check and balance was obviously of little signifi-
cance. Good statesmanship in both executive
and legislature preserved the harmony of the
two branches till the strain of armed hostilities
was relaxed, but no longer. In the work of de-
struction the President was the real government,
and Congress kept in the background ; in the work
of reconstruction Congress asserted once more its
controlling power, and violently put the President
into the background.

In the practice of the war-time the only prin-
ciple working efficiently in limitation of the gov-
ernment was that of frequent elections. Public
opinion, in short, and not the elaborate devices
of the constitution, played the decisive role in
the United States just as it had played it in
earlier centuries and presumably less favored
lands. American chauvinists had boasted long
and loudly of the superior stability of the written
constitution ; a great national crisis quickly re-
vealed that it was no more secure against the forces
of popular passion than the less artificial structures
with which it had been so favorably compared.

60 THE CONSTITUTION OF THE

Side by side with the assumption by the national
government of unlimited control over the rights of
the people, the process of gathering in powers that
had hitherto been left to the states went steadily
on during the war. The association of the doc-
trine of state rights with that of secession was too
close to permit of much resistance to this process.
Centralization was the order of the day. Con-
spicuous among the illustrations of this fact appear
the substitution of a national for a state system of
banking and currency ; the creation of a national
militia system to occupy the field once held by the
state systems ; and the sweeping jurisdiction con-
ferred by the Habeas Corpus Act upon the national
judiciary at the expense of the state courts. The
legislation by which these results were achieved
was opposed on constitutional grounds which in
earlier times would have been universally recog-
nized as unassailable. But under existing circum-
stances, the territorial unity of the nation was held
to outweigh all other considerations, and nothing
could stand that either positively obstructed or
even failed most effectively to promote this end.

It has sometimes been said that January i, 1863,
marks the most distinct epoch in the history of the
war. The Emancipation Proclamation is assumed
as the dividing line between the old system and
the new. This view is more appropriate to the
state of affairs in the South than to that in the

UNITED STATES IN CIVIL WAR 6 1

North. It is unquestionably true that Mr. Lincoln's
decree furnished the Southern leaders with a most
effective instrument for the consolidation of senti-
ment in the Confederacy. From that time the
struggle on the part of the South was a desperate
battle for existence. But in the North, on the
other hand, the triumph of the radicals in secur-
ing the adoption of their policy by the President
awakened feelings of apprehension among the
other political factions. Mr. Lincoln admits, in
his message to Congress in December, that the
issue of the proclamation "was followed by dark
and doubtful days." Nor was the gloom con-
fined to the political arena. The bloody reverse
at Fredericksburg, the narrow escape from dis-
aster at Murfreesboro, and later the disheartening
defeat at Chancellorsville, involved the military
situation in hopeless uncertainty. Meanwhile, the
discussion of the habeas corpus bill and the con-
scription act in Congress and in the country at
large aroused the bitterness which culminated in
the draft riots.- In all respects the first half of
the year 1863 was the period of lowest ebb of the
national fortunes. The turn of the tide came with
the nation's birthday. In the field, Gettysburg
and Vicksburg marked the change. The stern
enforcement of the conscription act was success-
ful finally in putting the government on a firm
footing with respect to men, while the enormous
loan of ^900, OCX), 000, authorized by the last Con-

62 THE CONSTITUTION IN CIVIL WAR

gress, satisfactorily settled the matter of sup-
plies.

By the summer of 1863, the question of war
powers in the general government for the suppres-
sion of insurrection had been definitely settled.
The military result of the war became only a ques-
tion of time, and the legal and political results
gradually began to assume the greatest importance.
Most obvious of these was the final disappearance
of the assumed right of state secession, and with
it the whole doctrine of state sovereignty in all its
ramifications. For, while it is often said that a
right cannot be destroyed by force, the maxim
refers rather to the abstract moral conviction than
to the concrete legal privilege. The effort to ex-
ercise the alleged right had failed ; and whether
the means employed to prevent the exercise were
revolutionary or not, the constitutional law of the
country can take cognizance only of the results.
But if the right of a state as an organized commu-
nity to sever its political relations with other com-
munities does not exist, there can be no claim of
sovereignty for the state. For if political sover-
eignty means anything, it includes the attribute
of self-determination as to its status in respect to
other sovereignties. Limitation in this attribute
is fatal to the conception of sovereignty, and ac-
cordingly, the failure of secession removed one
pregnant source of confusion at the very basis of
our system.

THE CONSTITUTION OF THE UNITED
STATES IN RECONSTRUCTION

The doctrine of state sovereignty perished in
the destruction of the Confederate armies. With
that dogma our constitutional law ceased to have
any concern. Its principle was antecedent to
and above the constitution. State rights, on the
other hand, were, under the theory of national
sovereignty, determined by the constitution itself.
Before the war the scope of the powers assigned
to the states had been influenced much by the
state-sovereignty theory. The pressure of the
government's peril during the rebellion, however,
had caused a natural reaction, and many of the
most widely recognized attributes of state author-
ity had been assumed by the general government.
With the assured success of Northern arms, a
distinct definition of the rights of a state under
the new situation became a matter of the first
importance. The working out of such a defini-
tion was from the legal standpoint the main prob-
lem of reconstruction.

Inextricably involved in this leading legal ques-
63

64 THE CONSTITUTION OF THE

tion, was an even more troublesome practical
difficulty. What was, and what should be, the
civil and political status of the Southern blacks ?

I. Status of the Rebel States and of the Negroes
at the Close of Hostilities

The definition of state rights first presented
itself as a vital political issue when the national
authority began to be firmly re-established in
the rebeUious communities. In the course of
the year 1863 the military situation in Tennessee
and Arkansas seemed to justify the President in
taking the preliminary steps towards the rehabili-
tation of those states with civil authority. His
message of the 8th of December may be taken
as the beginning of the process which only termi-
nated with the withdrawal of the troops from the
capitals of Louisiana and South Carolina by Presi-
dent Hayes in 1877. Between the close of 1863
and the end of hostilities no important progress
was made towards a solution of either of the great
problems which were now plainly confronting the
nation. All phases of the matters were freely
discussed, but the President and the legislature
were unable to agree upon either the fundamental
principles of a theory or the details of a practical
measure. The immediate end sought at this
time was the restoration to political rights of the
people of the regions fully in the possession of the

UNITED STATES IN RECONSTRUCTION 65

national forces. To effect this purpose a clear
conception of the exact status of the districts in
question was requisite. As to this status there
were wide differences of opinion. Without con-
sidering at this point the various theories pro-
posed, it will be well to sketch the public acts
of the three departments which had had a
bearing on the question at issue. Succinctly-
put, the question was this: Had the rebellious
communities any rights as states under the con-
stitution }

A review of the acts indicative of the view
of the executive department of the government
upon this point presents the following result:
In his inaugural, President Lincoln stated his
conviction that the Union could not be broken by
any pretended ordinance of secession. This view
was reaffirmed in his first message ; and his non-
intercourse proclamation of August 16, 1861, de-
clared not the states, but the inhabitants of the
states mentioned, to be in insurrection against the
United States. In all the executive ordinances
the illegal proceedings were assumed to be the
acts of assemblages of individuals, and not the
acts of the corporate states. A most important
deduction from this theory was that the loyal ele-
ment of the Southern people would be exempt
from the penalties of the insurrectionary trans-
actions. It was this element, indeed, which Lin-
coln adopted as the basis of the measures of

^ THE CONSTITUTION OF THE

restoration which he proposed in 1863. On the day
Congress met, December 8, he issued a proclama-
tion, the preamble of which recited the subversion
of the state governments by persons in rebellion
and hence guilty of treason, and the desire of
certain of these persons to reinaugurate loyal
governments ''within their respective states."
An oath was prescribed, the taking of which was
to be a satisfactory proof of loyalty, and the Presi-
dent pledged himself to recognize any state gov-
ernment formed under certain conditions by a
number of loyal persons equal to one-tenth of
the voting population in i860. Mr. Lincoln was
thus true to the position assumed at the outbreak
of the war. Nor did he recede from this posi-
tion up to the time of his death. The executive
department, in short, was fully committed to
the doctrine that the corporate existence of the
seceding states was not interrupted by the
war.i

If we review the course of the legislature in
its bearing on this question, we find up to a cer-
tain point a similar result. The act which pro-
vided for the definite recognition of the existence
of a state of war, that of July 13, 1861, empowered
the President to declare intercourse suspended
with the inhabitants of certain enumerated dis-
tricts, and gave no intimation that the states, as

1 See Lincoln's speech just before his death; McPherson, Rebel-
lion, p. 609.

UNITED STATES IN RECONSTRUCTION 67

such, were concerned. In imposing the direct
tax of twenty millions in 1861, the seceding states
were assigned their proportionate shares/ and by
a later law^ the amounts thus assigned were made
a charge upon the land in the respective states.
Further, the creation of West Virginia was valid
only on condition that the consent of Virginia
was obtained ; and we find, in the law erecting
the new state, that the legislature of Virginia did
give its consent.^ Many other instances might
be adduced to illustrate the attitude of Congress
toward the question of state existence in the early
days of the war. It certainly was one with the
President in according to the state a being in-
capable of destruction by any unconstitutional
organizations of its inhabitants.

But there came a time when symptoms were
manifested of a change of heart in the majority
in Congress. With the brightening prospects of
the military situation, the anxiety to secure firmly
the settlement of the slavery question led to a
closer examination of the consequences that might
flow from too strict an adherence to a theory
better adapted perhaps to a time of doubt than
to a time of certain success. The subject of state

1 12 Statutes at Large, 295.

2 Ibid., 422.

3 Ibid., 633. This consent was given by a revolutionary organi-
zation formed by the Unionists after the triumph of their adversaries
in the adoption of the ordinance of secession.

68 THE CONSTITUTION OF THE

status became very prominent through the steps
toward restoration announced by the President in
his message in December of 1863 and the accom-
panying amnesty proclamation. So pronounced
a movement towards the realization of the old
state-rights doctrine aroused all the radical ele-
ments. It was feared that Mr. Lincoln would be
lax in exacting satisfactory conditions from the
reorganized communities. Accordingly, under the
leadership of Senator Wade and Representative
Henry Winter Davis, a bill was brought in, and
after long discussion passed, prescribing condi-
tions of restoration that were much more stringent
than those contained in the President's plan, and
making Congress instead of the executive the ulti-
mate authority on the question of recognition.
But so far as the matter of state status was con-
cerned, the principle of the Wade-Davis bill was
not different from that adhered to by the President.
The rebellious states were regarded as having lost
their governments through insurrection within
their limits, and it was assumed as the duty of
the national government, under the clause of the
constitution directing the guarantee of a republi-
can form in each state, to declare when such a
form existed. The whole plan of the bill, how-
ever, fell through, by the President's withholding
his signature till the adjournment of Congress.
He thereupon issued a proclamation stating his
objections to the bill and renewing his encourage-

UNITED STATES IN RECONSTRUCTION 69

ment to the loyal people of the states in the
reorganization of their governments.^

Later on, in consequence of the practical appli-
cation of the President's plan in Louisiana and
Arkansas, the question was presented to the Thirty-
eighth Congress in another shape. An organiza-
tion had been effected in each of those states in
accordance with Lincoln's proclamation, and cre-
dentials were accordingly presented to each house
of persons claiming to represent the restored states.
It became necessary for the houses to pass on the
rightfulness of the claims. The Senate judiciary
committee reported adversely to the admission of
the claimants from Arkansas on the grounds, first,
that the President's proclamation declaring the in-
habitants of Arkansas in a state of insurrection
had not been revoked; and second, that the su-
premacy of the military power in the state pre-
cluded the possibility of a civil organization that
should be republican within the meaning of the
constitution. In the House, the committee on
elections reported favorably on the Arkansas
claimants, but no action was taken on the report.
As to Louisiana the result was no more conclusive.
Favorable reports were made by committees in
both houses, but were not acted upon. Again, in
connection with the electoral count in February,
1865, the opportunity for an explicit declaration
was evaded. By joint resolution it was enacted

1 McPherson, Rebellion, p. 318.

70 THE CONSTITUTION OF THE

that, because ''the inhabitants and local authori^
ties" of the eleven enumerated states were in
armed rebellion on election day, "the states" were
not entitled to representation in the electoral col-
leges.i No conclusive expression of opinion, in
fact, was made by the Thirty-eighth Congress on
the vital point of state status.^ Resolutions with-
out number were offered, embodying all conceiv-
able shades of belief on the issue, but, after eliciting
much discussion, they were invariably consigned
to a permanent resting-place on the table, or to a
quiet grave in some committee.

There was a reason for this persistent ignoring
of so important a question. The sentiment in
favor of an absolute settlement of the slavery ques-
tion had resulted in the submission to the states
of the Thirteenth Amendment; and it was evident

1 McPherson, Rebellion, pp. 577, 578.

2 The debates in the last session of this Congress (1864-65)
afforded abundant evidence that the doctrine of the continuous
existence of the states that had seceded was losing ground. The
Wade-Davis reconstruction bill contained clauses emancipating the
slaves and declaring them and their posterity forever free — that is,
practically abolishing slavery — in the rebellious districts. It had
been a universally accepted principle that Congress had no powder to
enact any such law in respect to states. The passage of the bill
through the two houses was due in part to the theory that no states
existed in the regions designated. Many supporters of the measure,
however, considered that the war power was a sufficient basis for the
provision, and that no consideration of state status was involved.
The wording of the emancipation clause itself was : " All persons
held to involuntary servitude or labor in the states aforesaid are
hereby emancipated and discharged therefrom."

UNITED STATES IN RECONSTRUCTION 7 1

that until its adoption had put the question of
slavery beyond the reach of the states, no further
and conclusive steps toward restoration could be
taken. But the Congress expired before the fate
of the amendment was known, and shortly after-
wards the collapse of the Confederacy left the
national authority in the South supreme, but with-
out any clear legislative expression as to the extent
of that authority. It appears, then, that although
the legislative department of the government had
not, like the executive, consistently affirmed the
persistence of the state entities as political units
in our system, it had not, up to this time, rejected
the theory.

The view held by the judiciary with respect to the
war was first enunciated in the Prize Cases, decided
in 1862. While a difference of opinion was mani-
fested on the question, zvhen an actual state of war
began to exist, the Supreme Court was unanimous
in its judgment as to the nature of the conflict.
It was recognized as a military assertion of the
authority of the general government over the in-
habitants of certain states and districts. " Con-
gress," the opinion declares, " cannot declare war
against a state or any number of states, by virtue
of the constitution." ^ Nor has the President any
power to initiate or declare a war of any sort. He
is only authorized bylaw "to suppress insurrection
against the government of a state, or of the United
1 2 Black, 668.

72 THE CONSTITUTION OF THE

States." The individuals conducting the present
insurrection have taken advantage of the peculiar
constitution of our system, and have ''acted as
states claiming to be sovereign"; but nowhere in
cither majority or dissenting opinion is any recog-
nition given to the idea that the states as known
to the constitution are concerned in the war.
Again, in the case of The Venice,^ Chief Jus-
tice Chase describes the government's policy as
embracing no views of subjugation by conquest,
but as seeking only " the re-establishment of the
national authority, and the ultimate restoration of
states and citizens to their national relations."
There appears to be no indication, then, that the
judiciary ever doubted the constitutional existence
of the states. Circumstances had disarranged their
relations with the federal government, but with
the correction of the disturbance the former condi-
tions would be resumed.

From the foregoing review of the attitude of all
the departments of the United States government,
it seems unquestionable that, while the necessities
of war had made sad havoc with the rights of the
states as well as of individuals, yet upon the return
of peace a resumption was contemplated of the ante
belliim status of both, subject only to such modifi-
cations as the now undisputed sovereignty of the
nation should impose.

As to the status of the negroes, the whole
1 2 Wallace, 278.

UNITED _S TA TES IN RE CONS TR UC TION J 3

question was in hopeless confusion. Under the
operation of Mr. Lincoln's Emancipation Procla-
mation, and of the various acts of Congress con-
taining provisions in reference to the subject,
the number of freedmen dependent upon the
government had become enormous. The care of
these dependents became early a subject of con-
siderable importance. Commanders were seriously
embarrassed by the great crowds of improvident
blacks that attached themselves to the armies in
their campaigns. It was not considered just to
the Southern slaves to give them their freedom
and then leave them to be re-enslaved as soon as
the national forces had gone by. Such a course
indeed would have been impossible, since the freed-
men themselves instinctively refused to stay. The
border states protested vigorously against the in-
flux of paupers to burden their already oppressed
taxpayers. Private philanthropy took in charge
the work of civilizing on the spot, but always
under the protection of the army, such of the
unfortunates as could be assembled at various
points along the borders of the Confederacy. By
act of March 3, 1865, the whole matter was sys-
tematized by the establishment of a bureau in the
War Department 1 to have control of all subjects
relating to refugees and freedmen from the terri-
tory embraced in the military operations of the war.
The act authorized the issue of provisions, clothing

1 13 Statutes at Large, 507.

74 THE CONSTITUTION OF THE

and fuel to destitute refugees and freedmen, and
provided for their settlement on the abandoned or
confiscated land of rebels. The existence of the
bureau was limited to the duration of the rebellion
and for one year thereafter. It was evidently the
belief that the supervision of the general govern-
ment would accomplish its object within a year
after the cessation of hostilities, and that then the
freedmen could be relinquished to the normal opera-
tion of the laws. Such, at least, was the view of
the conservative Republicans, who hesitated to
convert the national government into a perma-
nent dispenser of charity. The act was regarded
as based entirely upon the war power of the govern-
ment, and was accordingly limited in its duration
to the state of affairs which justified the exercise
of such power.

Little more than a month after the passage of
the bill, the Confederacy fell. \ The whole South
came under the domination of the armies of the
United States, and by the operation of the Presi-
dent's orders all the slaves in those regions became
de facto free. Whether or not they rose imme-
diately to a position of legal equality with their
former masters was an unsettled question, now to
become of the first importance. But whatever
their rights at this period, the authority to which
they looked for a guarantee of those rights divided
the negroes distinctly from the other race. As has
been indicated above, a reorganized state jurisdiction

UNITED STATES IN RECONSTRUCTION 75

was to regulate the affairs of the restored com-
monwealths ; but for the freedmen a bureau of
the United States War Department had the in-
definite jurisdiction conferred by the words, "the
control of all subjects relating to refugees and
freedmen from rebel states." The status of the
negroes thus seems to have been practically that
of wards of the national government, with rights
totally undetermined.

II. Presidential Restoration of the States

Upon the theory which has been shown to have
been recognized in the conduct of the war, the
problem of restoring the states to their normal
position in the Union was apparently simple.
The instant the state of insurrection ceased
which had given rise to the attitude of belliger-
ency towards the inhabitants of the rebellious
regions, a^ite belhim relations would be resumed, in
so far as not modified by legislation during the
war. That no such special modification had
been effected in the relations of the insurrec-
tionary states, had been assumed by all the
departments of the government. But as to the
individuals in rebellion, certain important meas-
ures had been passed. Most prominent were the
provisions of the Confiscation Act of 1862, which
declared severe penalties upon such persons. By
section thirteen of this act, however, the President

76 THE CONSTITUTION OF THE

was authorized to extend amnesty and pardon at
his discretion ''to persons who may have partici-
pated in the existing rebellion in any state or part
thereof." It was therefore left to the executive to
relieve individuals from the consequences of their
crimes so far as he saw fit. In pursuance of this
authority, Mr. Lincoln had issued his proclamation
of amnesty in 1863, prescribing a form of oath,
the taking of which would restore to his normal
relations a person who had incurred the disabilities
resulting from participation in the rebellion. The
nucleus of loyal citizens thus secured in any state
was competent to take the steps necessary to the
organization of a government for the state. Nor
did it matter that they were a minority of the po-
litical people of the state — even the one-tenth that
the President fixed upon arbitrarily as a sufficient
number. The guaranty clause of the constitution
would warrant the protection of a loyal minority by
the national authorities against an overwhelming
majority of disloyal and rebellious citizens.

In approaching reconstruction Mr. Lincoln's
great anxiety was to get something in the nature
of a state organization to recognize, without being
over-critical as to how it was secured. Consis-
tency required that the impulse to commonwealth
organization should come, nominally at least,
from the people of the unsettled community.
His proclamation accordingly contained no man-
date of action, but merely declared the circum-

UNITED STATES IN RECONSTRUCTION '/'/

Stances under which he would recognize a govern-
ment in any state. These circumstances were,
(i) the completion of an organization by persons
(2) who had subscribed to the oath of allegiance
to the United States, and (3) who had pledged
themselves to support the acts and proclama-
tions promulgated during the war in reference to
slavery. It is true that these terms were practically
conditions imposed upon citizens of states as pre-
requisite to the exercise of their rights. But
the plan, as Lincoln stated in his message,^
was merely presented as a rallying point, which
might bring the people to act sooner than they
otherwise would, and was not intended as a final
solution of all the delicate questions involved. In
no rebellious state, save Virginia, was there a gov-
ernment whose members possessed the most funda-
mental qualification for legitimacy — namely, that
secured by having taken the oath prescribed by
article six of the constitution.^ To obtain such
a government was Lincoln's main object. In
Louisiana and Arkansas he was successful. Con-
gress, as has already been stated, declined to com-
mit itself to such recognition of these governments
as would have been implied in the admission of
members chosen under their auspices. But under

1 McPherson, Rebellion, p. 147.

2 " The members of the several state legislatures, and all executive
and judicial officers, both of the United States and of the several states,
shall be bound by oath or affirmation to support this constitution.'*

78 THE CONSTITUTION OF THE

executive protection their organizations were main-
tained till Congressional reconstruction supplanted
them. In Tennessee, where there was a very strong
Union sentiment, Andrew Johnson, in the capacity
of military governor, effected an organization which
went into full operation early in the spring of 1865.
The government thus established also continued
through the period of restoration.

Upon the collapse of the Confederacy and the
death of President Lincoln, Mr. Johnson devoted
himself to the application of his predecessor's plan
in the other states. In Virginia, where a loyal
organization had been maintained at Alexandria,
with Mr. Pierpoint as governor, ever since the
separation of West Virginia, he simply proclaimed
his purpose to carry out the guarantee of a repub-
lican form of state government by supporting the
measures of this authority.^ By the same order,
the administration of all the departments of the
general government was put in operation through-
out the state. Three weeks later Johnson's
amnesty proclamation was issued. It followed
Lincoln's closely in tenor, but the oath pre-
scribed as a condition of pardon involved a more
unqualified recognition of the validity of emanci-
pation, and the classes of persons excluded from
the benefits of the amnesty were more numerous.
Accompanying the amnesty manifesto was issued
the order to put in operation the plan of restora-

^ Proclamation of May 9, 1865.

UNITED STATES IN RECONSTRUCTION 79

tion in North Carolina, and at intervals up to the
middle of July successive proclamations inaugu-
rated the system in all the other rebellious states.
Johnson evidently aimed at operating on exactly
the same theory as his predecessor. In the pre-
amble of his proclamations he marked out the con-
stitutional basis of his action : The United States
must guarantee a republican form of government,
and protect each state against invasion and domes-
tic violence ; the President is bound to see that the
laws are executed ; rebellion, " now almost entirely
overcome," has deprived the people of the state
of all civil government ; it is therefore necessary
and proper to carry out and enforce the obliga-
tions of the United States to the people of the
state. In consequence of these principles and
facts, the President and commander-in-chief of the
army and navy appointed a provisional governor
for each of the disturbed states, with the duty of
securing the re-establishment of the constitutional
order. In the appointment of this special officer,
Mr. Johnson followed the action of Mr, Lincoln
in designating ''military governors" for several of
the states in which a firm foothold was early ob-
tained by the army. The duty of the provisional
governors was laid down in much the same terms
that had been employed in Lincoln's instructions
to Johnson when the latter held the office of mili-
tary governor of Tennessee.^ They were directed

1 McPherson, Rebellion, p. 436.

8o THE CONSTITUTION OF THE

to prescribe rules for the calling of a convention
of delegates chosen by the loyal people of the re-
spective states, and "to exercise all powers neces-
sary and proper to enable such people to restore
the states to their constitutional relations to the
federal government." The test of loyalty was sub-
scription to the oath of amnesty as set forth in
the President's proclamation, and a prerequisite of
voting was the qualifications of an elector under
the laws of the state in force immediately before
the act of secession. Further, the President de-
creed that the convention, "or the legislature
thereafter assembled, will prescribe the qualifica-
tion of electors, and the eligibility of persons to
hold office under the constitution and laws of the
state, a power the people of the several states
composing the Federal Union have rightfully ex-
ercised from the origin of the government to the
present time." ^

In these electoral conditions was embodied the
principle which developed at once a centre of an-
tagonism to the President. It had already become
a cardinal doctrine of the radical Republicans that
^>' the necessary corollary of emancipation and aboli-
tion was enfranchisement of the freedmen. By
assuming that secession had effected the extinc-
tion of the states, they had removed all constitu-
tional obstacles to the realization of this doctrine

1 For Mr. Johnson's proclamations, see McPherson, History of the
Reconstruction, p. 8 ei seq.

UNITED STATES IN RECONSTRUCTION 8 1

by the general government. But here was a dec-
laration by the President that the whole matter
was to be left to the Southern whites ; and the
fate of negro suffrage in such hands was not
doubtful. Around this rallying point, then, were
speedily grouped all the elements of opposition
to the President's policy. The conviction that
the emancipated race, made by circumstances the
wards of the nation, ought to continue under the
nation's care, was common to all. But opinions
as to the means of effecting this were of all de-
grees of diversity. Conservatives considered that
if the civil rights of the blacks could be guaran-
teed by the general government, the political privi-
leges could be left to the states. To assume this
guarantee by law involved grave questions of con-
stitutionality; to fix it by constitutional amend-
ment seemed to require a previous determination
of the status of the rebel states. In view of the
difficulties that beset every plan that was sug-
gested, many were inclined to give the President's
experiment a fair trial, that the data thus obtained
might be utilized in future adjustment.

In the midst of all this conflict of judgment,
however, restoration on the line of the proclama-
tion was accomplished. By the general amnesty
and by special pardon of many in the excepted
classes, a loyal population was secured in all the
Southern states. Conventions revised the various
state constitutions under the direction of the pro-

G

$2 THE CONSTITUTION OF THE

visional governors, and also under immediate tele-
graphic supervision from Washington. The acts
which the President demanded as conditions of his
recognition were : the nullification of the ordinances
of secession, the repudiation of the war debt, and
the ratification of the Thirteenth Amendment by
the first legislature. These measures were adopted
with more or less grace ; several of the states
repealed, instead of declaring null and void, the
secession ordinances, and South Carohna evaded
altogether the repudiation of her war debt. But
in spite of occasional manifestations of ill-feeling,
the alluring prospect of self-government and rep-
resentation in the national legislature kept the
actions of the new governments in substantial
accord with the President's wishes. The work of
reorganization was completed, and by the opening
of the Thirty-ninth Congress in December, 1865,
representatives and senators from most of the rebel
states were ready to present their credentials for
admission to that body. In his annual message,
Mr. Johnson formally called upon Congress to com-
plete the work of restoration, by receiving the
Southerners, subject to the constitutional right of
each house to judge of the elections, qualifications
and returns of its own members. On December
18, the secretary of state issued his proclamation
that the Thirteenth Amendment was in force,
having been ratified by twenty-seven states, among
which were eight that had recently been in rebel-

UNITED STATES IN RECONSTRUCTION 83

lion. On the same day the President in a special
message to Congress announced specifically that
the rebellion had been suppressed ; that in all the
insurrectionary states, except Florida and Texas,
the people had reorganized their governments ; and
that in those two satisfactory progress was making.
Upon the completion of the organization in these
two states, then, the constitutional relations be-
tween commonwealths and national government
would be, in the opinion of the executive, exactly
as they had been before the war.

But the state of war which had been proclaimed
in 1 86 1 and 1862 by President Lincoln had not yet
formally ceased to exist. By successive orders for
particular localities, the blockade, the prohibition of
commercial intercourse, and the suspension of the
habeas corpus were revoked by Mr. Johnson ; but it
was not till August 20, 1866, that the final procla-
mation went forth that the insurrection was ended,
"and that peace, order, tranquillity and civil au-
thority now exist in and through the whole of the
United States of America." Prior to that date,
in all the states not declared at peace by special
proclamations, the presumptive status of the inhabi-
tants, under the unrevoked orders of Mr. Lincoln,^
was that of public enemies. The only evidence of
a different status was the fact of having taken the
amnesty oath, or of having received a special par-
don from the President. By the final order of Mr.

1 McPherson, Rebellion, pp. 149, 150.

84 THE CONSTITUTION OF THE

Johnson, however, the liability of all civilians in the
United States to the President's military authority
ceased, and no legal effect of the war remained
upon the private citizen in the Southern states,
save that a rapidly diminishing number of unpar-
doned individuals were still responsible before the
civil law for the crimes of treason and rebellion.

Such was the condition of affairs that was
claimed to have been brought about, by the
autumn of 1866, through executive action. As
far as the judiciary was concerned, the restoration
seemed to be fully accepted. The district courts
of the United States resumed their work under
the direction of the President as fast as the pro-
visional organizations were effected. Chief Justice
Chase declined to sit on the circuit bench while
military authority was maintained in the circuit,
on the ground that it was not becoming to the
dignity of the highest judicial officers of the gov-
ernment to act under even the least shadow of
subjection to armed force. He did not object,
however, to the holding of a circuit court by the
district judge sitting alone.^ As early as the De-
cember term of 1865, the Supreme Court ordered
the cases on its docket from the Southern states
to be called and disposed of.^ Upon the proclama-
tions by the President of the end of the insurrection,
the regular sessions of all the courts were resumed.

^ Letter to the President, Annual Cyclopedia for 1866, p. 514.
- 3 Wallace, viii.

UNITED STATES IN RECONSTRUCTION 85

This action indicated a judicial belief that normal
conditions had been restored in the South. The
rebel states, at all events, were not reduced to the
territorial status ; for by the long-accepted princi-
ple laid down by Chief Justice Marshall in 1828,
the jurisdiction of the constitutional courts of the
United States did not extend to territories. In
such regions it was for Congress to provide at will
for the administration of justice.^

Great weight cannot be attached, however, to
the attitude of the judiciary in this matter. Its
duty was to follow the decisions of the political
departments on questions of political status. But
as regards the status of the Southern states, it
early became evident that no harmony of views
could be reached between the executive and the
legislative. Already before the meeting of Con-
gress Mr. Johnson's course had provoked sharp
criticism, and threats of undoing his too hasty
work of restoration had not been wanting. Even
the friends of his general policy felt aggrieved that
so important a matter had been determined without
any reference whatever to the legislature. They
thought that an extra session of Congress should
have been called after the collapse of the Con-
federacy. In the opposition on principle to the
President's policy three chief elements were dis-
tinguishable: first, the extreme negrophiles, who,
on abstract grounds of human equality and natural

1 American Ins. Co. vs. Canter, i Peters, 546.

S6 THE CONSTITUTION OF THE

rights, demanded full civil and political privileges
for the freedmen ; second, the partisan politicians,
who viewed the elevation of the blacks mainly as a
means of humbling the Democrats and maintaining
the existing supremacy of the Republican Party ;
and third, the representatives of an exalted states-
manship, who saw in the existing situation an
opportunity for decisively fixing in our system a
broader and more national principle of civil rights
and political privilege. It was this last element
that controlled the proceedings during the earlier
months of the Thirty-ninth Congress. Later the
more radical elements assumed the lead.

The President, as we have seen, had prepared
to push his theory before Congress at its very
opening. Credentials were promptly presented by
members elect from the restored states. But Con-
gress declined to be hurried into committing itself
to any doctrine on the great subject. Instead of
the customary reference of the credentials of the
claimants to the committees on elections in the
respective houses, a joint committee of fifteen was
constituted to inquire into the condition of the
rebellious states and their title to representation ;
and it was agreed that all papers relating to
those states should be referred to this committee.
Thus was provided a convenient limbo to which
might be relegated any question that should
threaten to interfere with the placid progress of
Congressional deliberation. The next step was

UNITED STATES IN RECONSTRUCTION 8/

to unfold a scheme by which the ends of the
conservative Repubhcans might be attained by
simple legislation.

III. Nationalization of Civil Rights

Despite the strong opposition to Mr. Johnson's
policy among the Republicans in Congress, there
was at the same time a disinclination to an open
rupture with the President. It was in obedience
to this latter feeling that the joint committee on
reconstruction was so heartily agreed to. Through
this the main issue — the recognition of the South-
ern state governments — was deferred until it could
be ascertained whether a substantial protection for
the freedmen might not be obtained without coming
to open hostility with the President. In accordance
with this plan the aggressive spirit of the radicals
was repressed, and a series of measures was de-
vised, of which the Freedmen's Bureau Bill was
the first to be presented.

By this bill ^ the bureau which had been organ-
ized during the preceding session ^ was enlarged
as to both the duration and the territorial extent
of its powers. The limit of one year after the end
of the war was abolished, and the bureau's opera-
tions were to extend to " refugees and freedmen
in all parts of the United States." The powers of
the officials were of the vaguest character imagina-

1 McPherson, Reconstruction, p. 72. ^ ggg ante, p. 73.

88 THE CONSTITUTION OF THE

ble, involving practically absolute discretion in the
regulation of matters in which the freedmen were
interested. Provisions, clothing and fuel were to
be furnished to destitute blacks, land was to be set
apart for their use, and schools and asylums to be
erected for their benefit. But the central point of
the bill was in the seventh and eighth sections.
Here it was made the duty of the President to
extend the military protection of the bureau to all
cases in which the civil rights and immunities of
white persons were denied to others on account
of race, color or any previous condition of slavery
or involuntary servitude. Further, any person
who should, under color of any state law, ordi-
nance or custom, subject the negro to the depriva-
tion of equal civil rights with the white man,
should be guilty of a misdemeanor, and the juris-
diction of such cases was conferred upon the offi-
cials of the bureau. Such jurisdiction was limited,
however, to states in which the ordinary course of
judicial proceedings had been interrupted by re-
bellion, and was to cease there when those states
should be fully restored to all their constitutional
relations to the United States.

The grave questions of constitutionality in-
volved in the details of this bill were modified
in their bearing by the general basis on which
the whole legislation rested. It was, according to
Senator Trumbull, who had charge of it in the
Senate, a war measure, and inapplicable, by its

UNITED STATES IN RECONSTRUCTION 89

terms, to any other state of affairs.^ Under the
** necessity" which the existing insurrection had
made the supreme law of the land, the forcible
displacement of a state's authority over matters
of civil jurisdiction normally under its control, was
fully justified.

But the President, in vetoing the bill, protested
against "declaring to the American people and
to the world, that the United States are still in
a condition of civil war." He asserted that the
rebellion was, in fact, at an end.^ Mr. Johnson
was in rather a difficult position here; for the
habeas corpus was still suspended in the Southern
states, and even while he was writing his veto
message a military order had gone forth looking
to the suppression of disloyal papers there.^ It
was reasonably asked upon what authority such
executive acts could be performed if a state of
peace prevailed. The President's real grievance
was evidently that which he referred to last in
his veto message. He complained that the bill
regarded certain states as "not fully restored in
all their constitutional relations to the United
States," and announced that in his judgment most
of the states were fully restored, and were en-
titled to all their constitutional rights as members
of the Union. Congress was censured with re-
pressed severity for refusing to accord to those

1 Cong. Globe, ist sess., 39th Cong., p. 320.

2 McPheraon, Reconstruction, p. 68 et seq. * Ibid,, p. 133.

90

THE CONSTITUTION OF THE

states the right imperatively required by the con-
stitution, of representation in the two houses.

The President's veto, made effective by the
failure to override it in the Senate, strengthened
the extremists in Congress ; for many who desired
the success of the conservative plan were indig-
nant that it should be thwarted at the outset.
A concurrent resolution was passed declaring that
no member from any of the insurrectionary states
should be admitted to either house till Congress
should declare such state entitled to representa-
tion.^ This was a formal declaration of war upon
the executive policy. It notified the President
that Congress intended to form its own judgment
upon the status of the states, irrespective of any
extraneous decision. It precipitated the conflict
that had been impending since the amnesty proc-
lamation of 1863, and which Lincoln's tact had
been successful, and might afterwards have been
successful, in avoiding. And finally, it indicated
a strengthening of the feeling that some guaranty
for the rights of the freedmen should be secured
before the rights of the states should be conceded.
A great silence and mystery hung about the com-
mittee whose report was to embody the views of

1 McPherson, Reconstruction, p. 72. This declaration had been
proposed as part of the resolution providing for the joint committee
on reconstruction, but had been rejected by the Senate. According
t(j Mr. Blaine the immediate occasion of its passage now was the pres-
sure of Tennessee for admission. Twenty Years of Congress, II, 203.

UNITED STATES IN RECONSTRUCTION 9 1

Congress on the condition of the states. No one
doubted that the enveloping clouds would continue
until a satisfactory solution of the negro question
should be discovered.

As the next step in the direction of such a solu-
tion, the Civil Rights Bill was presented to the
Senate by its judiciary committee. The Freed-
men's Bureau Bill had been confessedly in the
nature of a temporary expedient. It had aimed
to secure the protection of the blacks by military
authority for a period that Congress should deem
sufficient. By the second measure, however, the
protection was to be incorporated permanently
into the law of the land, and to be entrusted to
the civil authorities of the nation. As the bill
passed, 1 it provided first a broad foundation for
rights in the declaration that " all persons born in
the United States, and not subject to any foreign
power, excluding Indians not taxed, are . . . citi-
zens of the United States." It then secured to
all such citizens of every race and color the same
rights as were enjoyed by white citizens in respect
to making and enforcing contracts, appearing in
the courts, receiving, holding and transferring
property, and enjoying the benefit of all laws for
the security of person and property. Section sec-
ond made it a misdemeanor to subject any inhabi-
tant of any state or territory to the deprivation of
any right secured by the act, or to different pun-

^ McPherson, Reconstruction, p. 78.

v

92 THE CONSTITUTION OF THE

ishment, by reason of race, color or previous con-
dition of servitude, from that prescribed for white
persons. The remainder of the bill was occupied
with provisions in great detail for the enforcement
of the first two sections. Cognizance of all cases
arising under the act was given exclusively to
United States courts, and the machinery for its
strict execution was borrowed, with grim satis-
faction, from the Fugitive Slave Act.^

At the time the Civil Rights Bill was proposed,
it had become a well-grounded conviction that the
Southern states would not yield to the negroes any
appreciable share of the rights which Northern
sentiment demanded for them. The legislatures
of the reorganized governments, under cover of
police regulations and vagrancy laws, had enacted
severe discriminations against the freedmen in all
the common civil rights.^ In several states the
tendency of these enactments toward a system of
peonage had appeared so pronounced as to induce
the military commanders to order that they be dis-
regarded. This situation strengthened the resolu-
tion, already well defined, to remove the possibility
of a system of modified slavery under state sanction.
It was feared that Congress would be unable to
effect this purpose after the admission of the South-

^ Trumbull; Globe, ist sess., 39th Cong., p. 475.

" For a summary of this legislation, see McPherson, Reconstruc-
tion, p. 29 et seq. For a Southern defence of the laws, see Herbert,
Why the Solid South (Baltimore, 1890), p. 31 et seq.

UNITED STATES IN RECONSTRUCTION 93

em representatives. The end must be achieved
before extending recognition to the new govern-
ments, and acquiescence in the result could then
be made a condition of the erring states' return.

At first glance, the provisions of the bill appeared
out of all relation to our constitutional system.
Never before had Congress been known to arrogate
to itself the power to regulate the civil status of
the inhabitants of a state. The proposition that
United States courts should assume jurisdiction of
disputes relating to property and contracts, and
even of criminal actions down to common assault
and battery, seemed like a complete revelation of
that diabolical spirit of centralization, of which only
the cloven hoof had been manifested heretofore.
But the supporters of the bill showed a clear
appreciation of the change that the great conflict
had wrought. They found a constitutional basis for
the law in the Thirteenth Amendment. Slavery
and involuntary servitude were by that article pro-
hibited ; and, by the second section. Congress, and
not the state legislatures, was authorized to enforce
the prohibition. What constituted slavery and in-
voluntary servitude, in the sense of the amendment }
Slavery and liberty, it was answered, are contradic-
tory terms. If slavery is prohibited, civil liberty
must exist. But civil liberty consists in natural lib-
erty, as restrained by human laws for the advantage
of all, provided that these restraints be equal to
all. A statute which is not equal to all is an en-

94

THE CONSTITUTION OF THE

croachment on the liberty of the deprived persons,
and subjects them to a degree of servitude. It is
the duty of Congress, therefore, to counteract the
effects of any such state laws. Thus the constitu-
tionality of the bill was maintained. The essence
of the plea was a wide construction of the terms
** slavery" and "involuntary servitude." Broadly
speaking, it was the practical application of what
had heretofore been in the United States a mere
theory, the idea of "equality" as an essential prin-
ciple of "liberty." There was involved in this con-
struction also a definite recognition of the national
government as the protector of individuals against
state oppression.

The far-reaching consequences of this view of
the Thirteenth Amendment filled the friends of
the old system with dismay. They insisted that the
only effect of the new article was to destroy the re-
lation of master and slave. Beyond this no action
of the central authority was contemplated. The
second clause gave no power to Congress that was
not already conferred by the old constitution.^ It
was merely added to authorize the extension of the
privilege of habeas corpus to a negro in case the
master persisted in holding him.^ Upon the disso-
lution of the old bond the freedman became subject
to the laws of his state, like any other inhabitant.
The idea that the amendment carried with it an

1 Art. I, sec. 8, last clause.

2 Cowan, of Pennsylvania; Globe, ist sess., 39th Cong., jv 499.

UNITED STATES IN RECONSTRUCTION 95

enormous centralization of power in the general
government had never been heard of during the
long discussion of the resolution in Congress. It
was a recently devised scheme of the consolidation-
ists to change the whole foundation of the govern-
ment by interpretation. " Will anybody undertake
to say," asked Cowan, "that that [amendment] was
to prevent the involuntary servitude of my child to
me, of my apprentice to me, or the ^//«i-/-servitude
which the wife to some extent owes to her hus-
band .? " Nothing but African slavery was referred
to, and only its various modifications were included
in '' involuntary servitude " ; the broad question of
civil liberty was not affected.

Whatever may have been the intention of the
framers of the Thirteenth Amendment, the con-
struction put upon it by Congress in the Civil
Rights Bill was promptly adopted by the judiciary.
The bill was vetoed by the President on the same
general line of reasoning that was employed with
respect to the Freedmen's Bureau Bill, but was
immediately passed over the veto. Cases under
its provisions came speedily before the circuit
courts, where its constitutionality was questioned.
Justice Swayne, in United States vs. Rhodes,^ sus-
tained the act, saying :

The amendment reversed and annulled the original policy
of the constitution, which left it to each state to decide ex-

1 I Abbot's U. S. Reports, 56.

g6 THE CONSTITUTION OF THE

clusively for itself whether slavery should or should not exist
as a local institution, and what disabilities should attach to
those of the servile race within its limits.

Chief Justice Chase also took a similar position,
holding that Maryland's apprentice laws, discrimi-
nating between white and black apprentices, were
in violation of the clause prohibiting involuntary
servitude.^ The later amendments, however, re-
lieved the courts of the heavy burden which hung
upon them in basing equality in all civil rights
upon the thirteenth alone. The construction of
this amendment has been narrowed in later
opinions, or rather, the tendency to widen it has
been checked.^

In addition to the definition of '* slavery " and
" involuntary servitude," the Civil Rights Bill un-
dertook to fix the precise meaning of the phrase
" citizen of the United States." The matter had
been involved, up to this time, in hopeless confusion.
No positive legal definition had been authorita-
tively given. For general practical purposes, exact
determination of the scope of citizenship had not
been found necessary. Where any opinion at all
had been pronounced, it had in most cases been
in relation to the status of the free negroes. The
weight of authority on this point was adverse to
the claim of citizenship for the blacks. " No per-

1 Turner's Case, i Abbot's U. S. Reports, 84.

2 Cf. Blyew vs. U. S., 13 Wallace, 581 ; Slaughter House Cases,
16 Wallace, 69; Civil Rights Cases, 109 U. S. 3.

UNITED STATES IN RECONSTRUCTION 97

son," said Attorney-General Wirt in 1821, "is in-
cluded in the description of citizen of the United
States, who has not the full rights of a citizen in
the state of his residence."^ This principle had
been in general the basis of the government's
practice in all the departments. For native-born
persons living within a state, citizenship of the
state was the prerequisite for citizenship of the
United States ; for persons of foreign birth, natu-
ralization alone was necessary. The Dred Scott
decision limited this rule by determining that state
citizens of African descent could not be citizens
of the United States. During the war, however,
the old view was entirely overthrown in practice.
Mr. Lincoln's attorney-general argued away all
the precedents, and gave it as his official opinion
that a free negro, born within the United States,
was ipso facto a citizen thereof. ^ He assumed
nativity as the broad basis of citizenship, univer-
sally recognized as such by public law. With that
assumption the status of United States citizen-
ship was placed entirely beyond the reach of any
state influence whatever, and a purely national
conception was attained.

This view was the one incorporated into the
Civil Rights Bill. The declaration thus made
by law was designed to end the uncertainty due to

1 I Opinions of Attorneys-General, 507. Cf. Taney and Curtis
in the Dred Scott Case.

'^ McPherson, Rebellion, 378.

gS THE CONSTITUTION OF THE

conflicting authorities. Its abstract principle did
not excite remonstrance so much as the deduc-
tions drawn from it in the remainder of the bill.
For while the immediate effect of the defini-
tion was to make the freedmen citizens of the
United States, the practical end of the other pro-
visions of the bill was to make them also citizens
of the several states in which they resided. This
result was not stated in terms in the law, but was
considered as a necessary corollary of the main
proposition. The act gave to all citizens of the
United States, in every state and territory, the
same civil rights as were enjoyed by white citi-
zens ; or, practically, declared to the states that,
however they might widen the scope of their citi-
zenship, they should never contract it so as to
embrace less than the whole number of citizens
of the United States residing within their respec-
tive borders.

To justify this sweeping enactment, the special
conception of citizenship which the history of our
institutions had developed was discarded, and the
broad principle of public law was adopted in its
place. All authorities agreed that the status of
citizen implied the reciprocal duties of allegiance
and protection.! A citizen of the United States,

1 Cf. opinion of Attorney-General Bates; McPherson, Rebellion,
p. 379. The employment of this relation as a basis from which to
infer unlimited power to "protect," is discountenanced by the
Supreme Court in U. S. vs. Cruikshank et al., 92 U. S. 549 : " In

UNITED STATES IN RECONSTRUCTION gg

then, was entitled to the protection of that gov-
ernment to which allegiance was owed. But this
protection was to operate against all sources of
oppression, and if a state government happened to
come in this category, it too must succumb.

IV. Theories as to the Statics of the States

The intense opposition which the Civil Rights
Bill had excited permitted little hope that its pro-
visions could remain permanently upon the statute
book. Hence arose the movement to incorporate
the principles of the bill in the constitution.

The struggle for the passage of the law had
involved the widest discussion of all the questions
connected with reconstruction. Mr. Johnson had
not only separated from the Republican leaders,
but had placed himself in a position that rendered
reconciliation inconceivable. Under such circum-
stances, the conservative plan of dealing with the
situation in the South, which could only be success-
ful through the President's support, had to be aban-
doned. Congress found itself obliged to formulate
a theory of state status upon which it could rest
for support in a decisive struggle with the execu-

the formation of a government, the people may confer upon it such
powers as they choose. The government, when so formed, may
exercise all the powers it has for the protection of the rights of its
citizens and the people within its jurisdiction; but it can exercise
no other."

100 THE CONSTITUTION OF THE

tive. To the joint committee on reconstruction
was entrusted the presentation of such a theory,
and from this committee emanated the plan of re-
organization which finally triumphed. Before con-
sidering the committee's report, however, it will
be profitable to examine the various theories in
respect to reconstruction which had become promi-
nent since 1863. While varying infinitely in de-
tail, these theories may be summarized, as to their
fundamental principles, in five classes, which may
be denominated : the Southern theory, the Presi-
dential theory, the theory of forfeited rights, the
theory of state suicide, and the conquered-province
theory. Of these the first two were based on the
idea of the indestructibility of a state in our sys-
tem, the last two on the contradictory assumption,
while the third was in the nature of a compromise
on this question.

As preliminary to an examination of these
theories it is necessary to determine as nearly as
may be, what constituted the essence of the con-
cept "state," under the a7ite bellum constitution.
No attempt will be made, however, to discuss the
question of sovereignty, or any other attribute held
to exist outside of the organic law. "The word
state," said Marshall, "is used in the constitution
as designating a member of the Union, and ex-
cludes from the term the signification attached to
it by writers on the law of nations." 1 What can
1 Hepburn and Dundas vs. Elkey, 2 Cranch, 452.

UNITED STATES IN RECONSTRUCTION lOI

be derived from the constitution itself as to the
meaning of the term ? Three distinct uses of the
word may be found in the supreme law. First, it
designates a mere territorial division with definite
boundaries ; second, it denotes the people, politi-
cally associated, who inhabit the same region ; and
third, it refers to the body politic within a defined
region, involving the threefold notion of territory,
people and government. This last sense of the
word is by far the most frequent in the consti-
tution, and accordingly the Supreme Court has
framed the definition of a state thus :

A political community of free citizens, occupying a territory
of defined boundaries, and organized under a government
sanctioned and limited by a written constitution, and estab-
lished by the consent of the governed. ^

The theories to be examined may be viewed in
the light afforded by this definition. The three
essential elements of a state were held to be a
geographical locality with determined limits, a com-
munity inhabiting it, and a government organized
by that people. At the close of the war, two prin-
cipal questions arose as to the insurrectionary dis-
tricts : first, did states exist in those districts ; and
second, what was the relation of those states or
districts to the government of the United States ?

To the first of these questions the Southern

1 Texas vs. White, 7 Wall. 721. Cf, Hunt, dissenting, in U. S.
vs. Reese, 2 Otto, 350.

102 THE CONSTITUTION OF THE

theory, as has been stated, gave an afifirmative
answer. All the essentials of state-being remained
unchanged by the war. Territory, people and
government conformed to the definition. The
war had been waged by the North for the avowed
purpose of suppressing an insurrection of individ-
uals, and with no idea of interfering with the
rights of the states. On individuals, then, all
the consequences of the defeat must fall. But
the states, it was admitted, were out of their con-
stitutional relation to the general government.
Their officers had taken no oath to support the
constitution of the United States. No senators
or representatives were acting for the states at
Washington. The authority of the United States
judiciary and revenue officials was not recognized
by the state governments. But the result of the
war had established the nullity of the acts upon
which this severance of connection was based.
The supposed separation was therefore unreal,
and it became the duty of the officers to take the
oath required by the constitution, of the legislat-
ure to provide for the despatch of congressmen
to Washington, and of the people of the state to
submit to the authority of the courts and officials
of the national government. These steps having
been taken, the Union would stand under the con-
stitution as before the war.

It was upon this theory that the celebrated
agreement between Sherman and Johnston was

UNITED STATES IN RECONSTRUCTION 103

made after the surrender of Lee.^ On the same
principle, the rebel governors in most of the states
convoked the legislatures to take action on the
situation after the collapse of the Confederacy.
It was the prevailing opinion throughout the
South that the restoration would proceed on the
lines of this theory.^ But the repudiation of Gen-
eral Sherman's agreement by the administration,
and the overthrow of the rebel state governments
by the military commanders, dissipated the hopes
of so simple an operation in readjustment, and
finally disposed of any possible realization of the
Southern idea.

The Presidential theory of state status has been
pretty clearly indicated in the discussion of its
practical application. Its cardinal doctrine was
the indestructibility of a state, either by its own
act or by act of the United States government.
At no time, either during actual conflict, or when
the Southern arms had been laid down, did the
United States consist of less component states
than before the first secession. To assert the
contrary was to admit the dissolution of the
Union. The territorial and popular conditions
of the constitutional state remained unchanged
in every case. As to the state government, how-
ever, a defect existed, brought about indirectly
through the immediate relation of the people to

1 McPherson, Reconstruction, 121.

2 Pollard, The Lost Cause Regained, p. 51.

104 THE CONSTITUTION OF THE

the national government. All the officers as well
as the constituents of the rebel organizations were
insurgents, and hence incapable of political recog-
nition by the United States authorities. With the
removal of this disability, the ante-bellum status
returned. But until such removal, the vitality of
the state was suspended through the incapacity
of its organs to fulfil their functions. The Presi-
dent's pardon was the healing agent. Restored
by it to normal relations with the general govern-
ment, the people of the states became immediately
invested with the right to establish their own will
in organized form, and with the right to assume
the former relation with the Union.

In these two theories, the Southern and the
Presidential, the ultimate principle is obviously
the resolution in favor of the states of all doubts
arising out of the anomalous condition of affairs.
Both alike relied for support upon the sentiment
which the Republican platform of i860 expressed
in these words: *'The maintenance inviolate of
the rights of the states is essential to the balance
of power on which the prosperity and endurance
of our political fabric depend,"^ and both alike
adopted that view of the consequences of the war
which corresponded to the statement of its object
in the Crittenden resolution in Congress, in July,
1 86 1, namely, " to defend and maintain the suprem-
acy of the constitution, and to preserve the Union,

1 Tribune Almanac for 1861, p. 30.

UNITED STATES IN RECONSTRUCTION 105

with all the dignity, equality and rights of the
several states unimpaired."

Charles Sumner's famous theory of state suicide
was the first of those which maintained that no state
as known to the constitution existed on Southern
soil at the close of the war. The enunciation of
the theory was originally embodied in a series of
resolutions offered in the Senate in 1862.1 The
basis of the series is contained in the declaration
that any act by which a state may undertake to
put an end to the supremacy of the constitution
within its territory is void, and, if sustained by
force, such act is a practical abdication by the state
of all rights under the constitution. Further, the
treason involved in this resistance works instant
forfeiture of the powers essential to the continued
existence of the state as a body politic, and the
state is, in the language of the law, felo de se. But
the territory of the extinct commonwealth belongs
irrevocably to the United States, and consequently
becomes henceforth subject to the exclusive juris-
diction of Congress, like other territory of the
nation. The immediate consequence of these
principles, was, of course, the termination of all
peculiar local institutions, based solely on state
authority. Slavery ceased to exist, and all the
inhabitants of the territory, since they owed alle-
giance to the United States, must look to the
national government for protection.

1 McPherson, Rebellion, p. 322.

I06 THE CONSTITUTION OF THE

In Mr. Sumner's view, the three attributes in-
volved in the definition mentioned above do not
constitute the state known to the constitution. A
fulfilment of the duties imposed by the funda-
mental law is indispensable to the conception.
There can be no such an entity as a state out of
practical relations with the United States. A
state exists only by virtue of the maintenance of
these relations. Certain obligations are imposed
by the constitution upon the states, and certain
privileges are accorded to them. Refusal to
acknowledge the obligations works ipso facto a
forfeiture of the privileges. Among the obliga-
tions is that fundamental one of recognizing the
supremacy of the constitution and laws of the
United States ; among the privileges is the enjoy-
ment of governmental rights not attributed to the
central organization. Rejection of the former
works forfeiture of the latter. But the immediate
relation between the people and the general gov-
ernment is not at all affected. This government,
therefore, becomes the sole authority for the regu-
lation of their concerns. The inhabitants may
organize themselves for admission as states, but
Congress may impose its conditions upon them
before granting their application. It may fix their
boundaries at its pleasure and thus destroy every
vestige of the former states. In short, where once
existed sovereign states, only the territorial status
survived the ordinance of secession.

UNITED STATES IN RECONSTRUCTION 10/

The ultimate principle of this theory is that the
United States is a nation, of which the constitution
is the sovereign law. By the nation, through the
constitution, certain powers are conferred upon
people living in a given district. In these powers
consists the essence of a " state." "A state under
the American system," says an able advocate of
the suicide doctrine, "is not in the domain and
population fixed to it, nor yet in its exterior organ-
ization, but solely in the political powers, rights
and franchises which it holds from the United
States, or as one of the United States." ^ It was
by an act of free will on the part of the communi-
ties that they assumed these rights, and, by the
permission of Congress, became states. A similar
act of free will is sufficient to resign these rights,
and to revert to that condition which preceded
their assumption. " Nothing hinders a state from
committing suicide if she chooses, any more than
there was something which compelled the territory
to become a state in the Union against its will."
But however frequent may be the shuffling on and
off of the state form, the United States, as territo-
rial sovereign by virtue of natural laws far beyond
the reach of local action, remains unaffected.

The conquered-province theory, which was held
chiefly by Thaddeus Stevens, coincided with that
of Mr. Sumner in respect to the effect upon the
states of their own acts. They became non-exist-

^ Brownson, The American Republic, p. 290.

I08 THE CONSTITUTION OF THE

ent as states. But Stevens maintained that the
course of the United States government had made
it impossible to concede that they possessed, after
their subjection, even the attributes of territories
under the constitution. On Sumner's principle,
the people of the South, upon submission to the
national forces, became entitled to the rights of
United States citizens, as guaranteed by the con-
stitution and exercised prior to the erection of
the state organization. They had been treated as
belligerent enemies only so far as it was necessary
in order to bring them under the power of the gov-
ernment as traitorous citizens. The government's
right to treat them in either capacity had been af-
firmed by all departments, and acted upon by all.
But Stevens regarded all the nice constructions of
law by which this end was attained as forced and
unreal. He appealed to the actual facts of the
case, and asked if any one could look at the mili-
tary rule controlling the South and say that it
was not, in reality, the dominion of a conqueror.
Neither during the war, nor at its close, had any
constitutional limitation been regarded that stood
in the way of making the Southern people subject
to the absolute will of the United States govern-
ment. Such had come to be their condition, and
in no respect did it differ from that of a conquered
foreign foe. By proclamation of the executive, by
law of Congress and by decision of the judiciary,
the people of all the states in insurrection had been

UNITED STATES IN RECONSTRUCTION 109

declared public enemies ; as such they had been
subdued by the armies of the nation ; by their own
act they had rejected the authority of the consti-
tution, and it was not for them now to claim any
rights under that instrument. Whatever might be
the technical pleadings of the lawyers, the plain
facts of the situation were that the lives, the liberty
and the property of all the South were, by virtue
of conquest, at the absolute disposal of the govern-
ment. The principles of international law might
guide the settlement, if the government chose, but
no provision of the domestic constitution had any
binding force whatever.

From the theories of Sumner and Stevens, as
well as from those of the Southerners and the Presi-
dent, conclusions were deduced which were very
unpalatable to the majority of thinking men of the
day. The possibility of arguing away the exist-
ence of a state was an idea quite as offensive as
that of immediately conceding autonomy to the
recreant commonwealths. On the one hand the
historic conception of the nation as a federal
union seemed threatened with destruction ; on the
other hand, there appeared no guarantee of politi-
cal results at all commensurate with the military
triumph of the Unionists.

It was in consequence of this dilemma that the
theory of forfeited rights was matured. Standing
midway between the extreme doctrines, it embraced
some feature of each of the rival theories, and

no THE CONSTITUTION OF THE

like every compromise, it was deficient in a con-
sistent relation of its parts. Its supporters would
not concede that any state had been or could be
out of the Union. But, they argued, the insurgent
communities, while still integral parts of the nation,
are not in the enjoyment of all the rights which,
in a normal condition, a state may enjoy. That
element of the state which is designated the
people, should be in strictness called the politi-
cal people. This political people has committed
a political crime against the nation. But just as
the individual who violates the civil law of society
forfeits his civil rights in that society, so the com-
munity which offends against the political order of
the nation may lose its political rights at the will
of the sovereign. In no other way can the integ-
rity of the nation be secure. Now the agent of
the sovereign, in adjudging the extent and duration
of the punishment to be visited upon the recreant
commonwealths, is Congress. This is evident from
the very nature of government ; but it is also im-
mediately sanctioned by the constitution. For the
United States is directed by that instrument to
guarantee to every state a republican form of gov-
ernment. The nation thus becomes the final arbiter
as to the status of a state. But Congress is em-
powered to make all laws necessary and proper to
carry into effect the granted powers. Congress,
therefore, and not the President, is to direct the
rehabilitation of the states. Finally, the constitu-

UNITED STATES IN RECONSTRUCTION III

tion, and laws made in pursuance thereof, must be
the supreme law of the land ; under this clause the
power of the legislature in the matter becomes
indisputable. Neither the state nor the executive
can claim any rights or authority as against the
constitutional law-making organ of the government.

In many points the theory of forfeited rights ap-
proached very near to that of Sumner. It might
be said, in general, that the only difference between
them consisted in a mere abstraction. Sumner held
that the states did not exist; the forfeited-rights
theory refrained from stating the idea in that
form, but held in fact that they should be con-
sidered, at the pleasure of Congress, in a condition
of suspended animation. But on the hypothesis
of state suicide, the very boundaries of a com-
monwealth might be obliterated, and its identity
utterly destroyed ; the rival theory drew the line
here, and, while placing the vital principle of
political rights at the mercy of Congress, made to
conservative sentiment the cheap concession of
territorial indestructibility.

The President's theory also seemed at some
points to follow quite closely the lines of the for-
feited-rights doctrine. Mr. Johnson himself de-
scribed the condition of the rebel states in respect
to the exercise of their governmental rights, as that
of suspended animation.^ But the condition was not

1 See his remarks to citizens of Indiana; McPherson, Recon-
struction, p. 46.

112 THE CONSTITUTION OF THE

recognized as arising from the forfeiture of any
of the rights they once possessed. Only in the
retention of each and every one of such rights did
he see the maintenance of the integrity of the
states. The suspended animation was the conse-
quence of a concrete state of affairs among the
people of the state, and was not at all dependent
upon the will of any political body outside of that
community. Congress, in fine, the President held,
had no power to deprive a state of any right as a
penalty for the crimes of the people of the state.
It was that power, however, which the national
legislature, supported by the great mass of the
Northern people, finally determined to exercise.

V. The Congressional Plan of Restoration

From the theories just outlined, and the multi-
tude of views by which opinion shaded imper-
ceptibly from one to the other of the definite
doctrines, the reconstruction committee was called
upon to formulate a creed upon which the majority
in Congress could stand united. Concession had
to be made to all the various shades of opinion
among Republicans. The report, therefore, em-
bodied some feature of nearly all the theories, but
the combination was such as to bring into clearest
definition the doctrine of forfeited rights.^

1 For the report, see McPherson, Reconstruction, p. 84.

UNITED STATES IN RECONSTRUCTION 113

In the first place, the committee adopted the
view which the President had once proclaimed,
that, at the close of the war, the people of the
rebellious states were found " deprived of all civil
government." The de facto governments set up
during the rebellion were illegal, so far as the
United States government was concerned, and the
attempt to legalize them by force had failed. At
the cessation of hostilities, then, the Southern
states were disorganized communities, and subject
only to military dominion. The President, in his
capacity as commander-in-chief of the army, how-
ever, had no authority to deal with the restoration
of civil government. He appointed provisional gov-
ernors, who were, however, mere military officials.
Through these officials the people of the disor-
ganized communities adopted certain systems of
government; but these were nothing more than
phases of the President's military sway. There
was nothing of a permanent nature in them, and
their establishment had no effect as against any
regulation that should be adopted by the law-
making power in reference to the final adjustment
of relations with the states.

We cannot regard the various acts of the President in rela-
tion to the formation of local governments in the insurrection-
ary states ... in any other light than as intimations to the
people that as commander-in-chief of the army, he would con-
sent to withdraw military rule, just in proportion as they should
by their acts manifest a disposition to preserve order among

114 THE CONSTITUTION OF THE

themselves, establish governments denoting loyalty to the
Union, and exhibit a settled determination to return to their
allegiance ; leaving with the law-making power to fix the
terms of their final restoration to all their rights and privileges
as states of the Union.

In meeting the conservative proposition that a
state, under the constitution, must be either in the
Union, with all rights absolutely recognized, or out
of it, with no rights whatever, the committee's
principle denied the completeness of the disjunc-
tion, and rested on the conception of a state with
full rights, but with those rights in abeyance by
virtue of circumstances demanding recognition by
the supreme national government.

This view of the condition of the states was
evidently that of the forfeited-rights theory. In
deference to the conquered-province idea, however,
the committee reminded the states that, ''whether
legally and constitutionally or not, they did, in
fact, withdraw from the Union, and made them-
selves subject to another government of their own
creation." The moral of this was that from one
point of view "the conquered rebels are at the
mercy of the conquerors." In such a situation,
it was held to follow that the government had
a right to exact indemnity for the injuries done,
and to take security against the recurrence of such
outrages. The concession to Stevens was thus
utilized as a basis for the great maxim of the for-
feited-rights school, "indemnity for the past and

UNITED STATES IN RECONSTRUCTION II5

security for the future." Sumner's doctrine was
also deferred to with much respect. The territorial
unity of the nation was insisted upon, and it was
denied that any portion of the people of the nation
had the right, while remaining on its soil, to with-
draw from or reject the authority of the United
States. They might destroy their state govern-
ments, and ''cease to exist in an organized form,"
but this in no way relieved them from their obli-
gations under the constitution and the laws. The
distinction was marked between the destruction
of the states and the overthrow of the state gov-
ernments. "The states," it was held, "may cease
to exist in an organized form"; so far, but no
farther, was the possibility of state destruction
conceded. The constitution acts upon the people
directly, and not upon the states as such ; only by
act of the people, therefore, may the states become
amenable to the disciplinary power of the national
government.

The conclusion of the committee, accordingly,
was that the so-called Confederate states, having
forfeited all civil and political privileges under the
constitution, were not entitled to representation.
Before allowing it, security for future peace and
safety should be required. This could be obtained
only by changes in the organic law with a view to
determine the civil rights and privileges of citizens
in all parts of the republic, to place representation
on an equitable basis, to fix a stigma upon treason,

Il6 THE CONSTITUTION OF THE

to protect loyal people against future claims for
the losses sustained in support of rebellion and by
the emancipation of slaves, and to grant express
power to Congress to enforce these provisions.

There is manifest in the view thus set forth the
same tendency to blend purely constitutional con-
ceptions with the broader notions of international
law that is seen in the theory of the war power
employed during hostilities. It is only through
this tendency that the exaction of indemnity be-
comes prominent. The general sentiment against
the infliction of penalties for treason upon individ-
uals, together with the conviction that punishment
should be visited upon something, resulted in a
transfer of the consequences of rebellion from the
individual to the state. Any difficulties in the way
of such a transfer were readily avoided by the
resort to precedents of international warfare.

A month previous to the presentation of the
committee's report, the measures necessary to
the application of its principles had been submitted
to Congress. The conditions which were regarded
as necessary to be imposed upon the South were
embodied in a proposition for a fourteenth amend-
ment to the constitution. Accompanying the reso-
lution were two bills to supplement it in carrying
out the committee's plan. By one it was provided
that whenever any state lately in insurrection
should ratify the proposed amendment to the con-
stitution, and should modify its constitution and

UNITED STATES IN RECONSTRUCTION 117

laws in conformity therewith, the members from
that state might be admitted into Congress as such.
The companion bill declared ineligible to any office
under the United States government all persons
included in five specified classes, substantially the
same as those exempted from amnesty by the
President's early proclamation.^

In its general features this plan announced by
Congress resembled that by which the President
had effected restoration. A constitutional amend-
ment was proposed, the adoption of which was the
prime condition of recognition. But it was not
deemed necessary to provide for governments
through which state action should be taken. The
Johnson organizations, while stigmatized as mere
military concerns, were yet recognized as suffi-
ciently representative in their character to express
the will of the states. Such recognition consti-
tuted a vital flaw in the consistency of the Congres-
sional plan. If those governments were competent
to ratify an amendment to the constitution of the
United States, it was insisted that the states which
organized them were entitled to representation in
the national Congress. The Thirteenth Amend-
ment had become of effect through its adoption
by the Johnson governments.^ Much abuse was
heaped upon Mr. Seward for his action in recog-
nizing the right of the rebel states to vote on

1 For the bills, see McPherson, Reconstruction, p. 103.

* See proclamation by Seward; McPherson, Reconstruction, p. 6.

Il8 THE CONSTITUTION OF THE

this matter,^ but his method was found worthy of
adoption.

The content of the proposed Fourteenth Amend-
ment marks very accurately the progress that had
been made by the spring of 1866 in ideas as to
the extent to which reconstruction should go. In
the first section, the desire of the conservative
Republicans to put the civil rights of the negroes
under the protection of the United States was
gratified. The fourth guaranteed the financial
integrity of the government, and thus satisfied
those who feared some assertion of state rights
that might legalize debts incurred in opposition to
the national authority. These two provisions con-
stituted the limitations upon the powers of the
states that were generally recognized as unavoid-
able consequences of the war. The second section
of the amendment dealt with matters upon which
opinion in the dominant party was far from certain
and harmonious. It embodied a very clumsy and
artificial solution of the suffrage problem. The
alternative presented to the states, of enfranchis-
ing the blacks or losing proportionally in represen-
tation, was a mere temporary compromise between
two party factions. It was the most that the
friends of negro suffrage could secure at this stage
of the process; but there was no indication that
they would be satisfied with this. The third sec-
tion of the amendment was merely incidental to

* E.g., Scofield, of Pa.; Globe, 2d sess., 39th Cong., p. 598.

UNITED STATES IN RECONSTRUCTION 1 19

the conflict between Congress and President John-
son. The President's very free exercise of the
pardoning power interfered with the progress of
the legislature's policy, and no method of checking
this interference seemed so feasible as a constitu-
tional amendment. As a whole, the amendment
was tentative. It betokened a longing for a
definite settlement of the two great questions of
the day, tempered by dread of an adverse public
sentiment.

The bills which accompanied the resolution con-
taining the amendment were not acted upon dur-
ing the first session of the Thirty-ninth Congress,
and the full inauguration of the committee's plan,
therefore, was not accomplished. The first steps
having been taken, it was considered well to await
the action which the Southern states should take
in the matter, and especially to ascertain the result
of the autumn elections in the North, before mak-
ing any further advances.

Only in the case of Tennessee was this policy
departed from. In that state the radical Union
Party had in the previous year secured firm con-
trol of the government, and had adopted measures
rigorously excluding their opponents from any
share in its organization. The Fourteenth Amend-
ment was promptly ratified by the legislature,
though not without some doubts as to the regu-
larity of the proceedings,^ and Congress not less

1 Ann. Cyclopedia, 1866, p. 729.

120 THE CONSTITUTION OF THE

promptly declared Tennessee restored to the
Union. In the preamble to the resolution restor-
ing the state, the ground of the act was explained
in accordance with the theory that Congress had
adopted. The conditions considered necessary,
it was stated, had been fulfilled, and, moreover,
acts "proclaiming and denoting loyalty" had
been performed by the new state government.
These acts, not named in the law, were in fact
the disfranchisement of all partisans of the
Confederacy and various steps looking to negro
suffrage.

It was to the attainment of these ends — dis-
franchisement and enfranchisement, in some de-
gree — that a steadily growing sentiment had
been directed from the beginning. Scruples as to
the constitutionality of any interference by Con-
gress with the hitherto sacred right of a state to
regulate the qualifications for voting within its
boundaries, had alone prevented the requirement
of negro suffrage, at least, as a condition of restora-
tion. The moderate Republicans desired that this
regulation should be made by the voluntary act of
the Johnson organizations. Till every hope of such
a consummation was exhausted, the forfeited-rights
school of thinkers preferred to lean toward the
conservative theories of state status. Two events
converted this tendency into an unmistakable
swerve toward the opposite extreme. These were,
the rejection of the Fourteenth Amendment by

UNITED STATES IN RECONSTRUCTION 121

the legislatures of the ten states still unrestored,
and the overwhelming defeat of the President's
supporters in the Congressional elections.

VI. Military Reconstruction

An exhaustive discussion of the further prog-
ress of reconstruction in its relation to the con-
stitution would involve an examination in more or
less detail of the conflict between Congress and
the other great departments of the government.
Such examination, however, is without the scope
of this essay. The fruitless impeachment of Pres-
ident Johnson was the climax of the legislature's
struggle with the executive. As to the judiciary,
a hostility to the radical tendency of Congress
was unmistakably manifested in the cases of Milli-
gan,^ Cummings and Garland.^ The conservative
character of these decisions aroused a feeling of in-
tense bitterness against the Supreme Court. Many
laws were proposed looking to a curtailment of its
appellate jurisdiction, and the suggestion was not
wanting that even the original jurisdiction in cer-

1 Discussed supra, p. 45 et seq. Thaddeus Stevens regarded
this decision as scarcely less infamous than that in the Dred Scott
Case, and as much more dangerous to liberty. Globe, 2d sess.,
39th Cong., p. 251.

2 4 Wallace. In these two cases a state and a federal test oath,
designed to exclude rebels from exercising the functions of clergy-
man and attorney respectively, v^ere held unconstitutional, as ex
post facto laws.

122 THE CONSTITUTION OF THE

tain cases secured to it by the constitution might
be taken away by an amendment.^ Whether the
menaces directed against the judiciary had some
effect, or whether adherence to the traditional
policy of the court to avoid conflict on political
questions with the legislature was sufficient, it is
certain that the will of Congress met with no
adverse opinion during the remainder of the re-
construction era.

The further and final action of Congress in
bringing about the reorganization of the South-
ern commonwealths, is marked by a gradual but
certain relinquishment in fact of the theory of
state status which had been previously adopted
and which was still adhered to in name. Each
successive step rendered more and more obscure
the connection with the forfeited-rights idea.
Hitherto, by this theory, the will of the states,
as expressed by the historical constituency of the
states, had been recognized as entitled to at least
the consideration involved in its assent to the con-
ditions of restoration imposed by the national au-
thority. Henceforth, the will of the nation is
asserted without reference to that of the state.
The process of military reconstruction, in its lead-
ing features, follows closely the lines of the theory
of state suicide.

Through the rejection of the Fourteenth Amend-
ment by the Southern states, the process of res-

Bingham; Globe, 2d sess., 39th Cong., p. 502.

UNITED STATES IN RECONSTRUCTION 1 23

toration proposed in the committee's report was
brought to a standstill. It was evident that the
Southern whites would not consent to the admis-
sion of the blacks to the polls. In the North, the
hot campaign in the fall elections of 1866 resulted
very favorably to the friends of negro suffrage.
Supported by a strong and growing public senti-
ment, the radicals now devoted their energies to
the task of making the black vote the basis of re-
construction. This involved of necessity the sub-
ordination of the old political people of the various
states to a new political people created by Con-
gress. In this fact lay the practical triumph of
the Sumner theory.

The law which finally inaugurated the work of
military reconstruction was passed, over the Presi-
dent's veto, March 2, 1867. It declared that no
legal state governments existed in ten states of
the Union, and no adequate protection for life or
property. The deficiency was made good by plac-
ing the said states under the military authority
of the United States, and dividing them into five
military districts with an officer of rank not less
than brigadier-general at the head of each. The
existing state governments were not abolished,
but the sixth section of the bill enacted that any
civil government which might exist in any of the
states before its representatives were admitted to
Congress should be deemed provisional only, and
in all respects subject to the paramount authority

124 THE CONSTITUTION OF THE

of the United States. In the fifth section of the
act were stated the conditions on which repre-
sentatives would be admitted and military gov-
ernment withdrawn. Here the triumph of the
radicals was manifest ; in addition to the ratifi-
cation of the Fourteenth Amendment, it was re-
quired that a state constitution should have been
framed by a convention chosen by all male citi-
zens of the state of proper age, " of whatever race,
color or previous condition," and that, in that
constitution, the same qualifications for the elec-
toral franchise should be ordained. The act itself
disfranchised and declared ineligible to the con-
vention all who were excluded from office by the
proposed Fourteenth Amendment. In short, full
enfranchisement of the blacks and disfranchisement
of the leading whites were required as conditions
precedent to the enjoyment of the rights of a state.
The theory of a voluntary acceptance of these
terms by the states was still nominally adhered
to ; but no provision appeared in the act for the
initiation of any movement for the fulfilment of
the conditions. Such a movement could scarcely
be expected of the existing governments, which
had rejected the Fourteenth Amendment, and
which were by the act declared illegal. On the
23d of March, 1867, the Fortieth Congress, by
the supplementary reconstruction act of that date,
took into its own hands the whole process of
reorganizing the recalcitrant districts. To the

UNITED STATES IN RECONSTRUCTION 1 25

military commander of each district was assigned
the duty of causing to be made a registration of
voters qualified under the act of March 2, and of
holding elections for delegates to a constitutional
convention in each state. The work of the con-
vention was afterward to be submitted to the
voters for ratification, all under the immediate
control of the military commanders.

To overcome the conservative constructions of
the law which were adopted by the administration,
still another supplementary act was passed on the
19th of July. Attorney-General Stanbery, in con-
struing the first two laws, had declared that the
military authority was to be used only as auxiliary
to the existing civil governments in the rebel
states. The new act declared that those govern-
ments, if continued, were to be subject in all
respects to the military commanders. Their oflfi-
cers could be removed at the will of the officer in
command of the district. Further, practically un-
limited discretion was conferred upon the register-
ing officers as to who should be put upon the lists
of voters. And finally, to thwart effectually the
hostile influence of the administration, the Gen-
eral of the Army was invested with the final
authority in the removal and suspension of offi-
cers, and no commander concerned in carrying
out the acts was to be bound by any opinion of
any civil officer of the United States. This last
provision was aimed at the attorney-general.

126 THE CONSTITUTION OF THE

The three acts just outlined contain all the
essential principles of the process by which re-
construction was actually accomplished. The chief
features of the process were : first, the overthrow
of ten state governments that had been organized
under the Presidential proclamations ; second, the
establishment of military government in the dis-
organized districts ; and third, the determination
by Congress of the qualifications of voters, not
only for the immediate purpose of reorganization,
but also for all the future existence of the common-
wealths.

As to the first point, the action of Congress
was entirely consistent with the ground it had
taken at the beginning of its struggle with the
President. It had steadily declined to recognize
the organizations set up under Mr. Johnson's
guidance as anything more than provisional. The
status of a state that had forfeited its rights pre-
cluded the exercise of self-government until those
rights had been restored. Under the radical ten-
dency imparted to the legislature by the autumn
elections of 1866, Stevens succeeded in embody-
ing his conquered-province theory in the preamble
to the first military bill as it passed the House.^
The Senate, however, toned down the clause so as
to avoid declaring the states extinct. In its final
form, the act stigmatized them as ''rebel states."
Exactly what a "rebel state" is was not stated.
1 Globe, 2d sess., 39th Cong., p. 1037.

UNITED STATES IN RECONSTRUCTION 12/

By the radicals, the expression was regarded as
conceding their claim that a state, as a corporate
entity, could commit the insurrectionary act, and
so draw upon itself the penalty of forfeiting its
rights. The more moderate school, on the other
hand, maintaining that rebellion was a crime of
which only the individual could be guilty, con-
strued the phrase as signifying a state whose
inhabitants were wholly or chiefly rebels. But
whether the state was extinct or merely with-
out rights, the authority of the national gov-
ernment over its territory and people was
equally indisputable. And of this national gov-
ernment, Congress was the responsible directing
agency.

The second feature of the process gave rise to
vehement discussion in Congress. What was the
ground of justification for the imposition of purely
military government on the rebel states } Assum-
ing that the whole question was extra-constitu-
tional, and that only the law of nations controlled
Congress, there was no difficulty. Stevens and
his followers had plain sailing. But if the rebel
districts were still states, and their people citizens
of the United States, how could the proclamation
of martial law and the substitution of the military
commission for the jury court be reconciled with
the Bill of Rights } The most obvious answer
was that the act assumed the existence of one
of those cases of rebellion or invasion in which

128 THE CONSTITUTION OF THE

the constitution authorizes Congress to suspend
the ordinary safeguards of civil liberty. All ad-
mitted that the judgment of the legislature as to
when such a case had arisen was final. But as a
mere question of fact, the existence of rebellion
or invasion in 1867 was far from being clearly
demonstrable. In spite of reports of outrages upon
freedmen and Unionists in various parts of the
South, which partisan zeal magnified ad libitum^
it could not be made to appear that the situation
was such as in itself to involve rebellion. The
moderates were therefore compelled to fall back
upon the assumption that the old war had not yet
technically ended. For the benefit of this class, the
radicals, though troubled with no scruples them-
selves, resurrected an ancient Latin phrase, bello
non flagrante sed nondum cessante^ and pointed out
that bello nondum cessante was recognized in inter-
national law as one phase of warfare. Such was
the situation now in the Southern states. ^ " A re-
bellion," said Shellabarger, "is simply crushed by
war, by the arms of the republic, but is still suffi-
ciently strong to overthrow and defy the courts in
nearly half the territories of the republic. That is
a state of things contemplated by your constitu-
tion." The war power, in all its completeness, was
therefore in the hands of Congress, and would
continue to be until state governments were recog-
nized.

1 Globe, 2d sess., 39th Cong., p. 1083.

UNITED STATES IN RECONSTRUCTION 1 29

The difficulty with this theory was that it put
the legislature in distinct contradiction to both
itself and the other two departments of the gov-
ernment. For by proclamations of April 2 and
August 20, 1866, the President had announced
that the insurrection once existing in the eleven
specified states was at an end.^ His right to de-
cide this, as a mere military fact, was never seri-
ously questioned. Congress itself, in at least one
instance, recognized the date of the last proclama-
tion as ending the war.^ The Supreme Court, in
its first opinion on the question,^ expressly declined
to discuss whether the rebellion could be considered
as suppressed for one purpose and not for another,
but in the case before it, accepted the date of the
President's final proclamation. Later, Chief Jus-
tice Chase, on the ground that some act of a politi-
cal department must be regarded as conclusive,
decided, without reservation, that the executive
must be followed.*

There is but one theory on which the setting up
of military government in the Southern states by
Congress can be made to harmonize with the view
of the other departments as to the termination of
the rebellion, and that is, that the alleged inade-

1 McPherson, Reconstruction, pp. 15 and 194.

2 Public Acts, 39th Cong., 2d sess., ch. cxlv, sec. 2.

* U. S. vs. Anderson, 9 Wallace, 56.

* The Protector, 12 Wallace, 700. Cf. Brown vs. Hiatts, 15
Wallace, 184, and Balesville Inst. vs. Kauffman, 18 Wallace, 155.

K

130 THE CONSTITUTION OF THE

quate protection for life or property in the rebel
states in 1867 constituted a new "case of rebellion
or invasion," which justified the establishment of
martial law. But on this supposition there would
be a direct collision between Congress and the
judiciary at another point. In the case of Milligan
the Supreme Court declared with unmistakable
emphasis that " martial rule can never exist where
the courts are open, and in the proper and un-
obstructed exercise of their jurisdiction." Yet in
the states which were relegated by Congress to
the unlimited dominion of officers " not below the
rank of brigadier-general," the ordinary courts,
both local and federal, had transacted their regular
business for nearly two years.

In reference to the third and perhaps the most
important feature of the Reconstruction Acts, the
legislature and the judiciary are in harmony, though
the difficulty of reconciling their doctrine with the
earlier interpretations of the constitution is in-
superable. Congress enacted that new state gov-
ernments should be organized by a political people
differing in toto from that which had formerly been
recognized as the basis of the commonwealths.
The leaders of the Southern whites were excluded
from any part in the reconstruction ; the freedmen
were awarded the ballot, and were relied upon to
accomplish the formation of state governments.
Two questions arose in connection with these acts:
first, by what authority did the national legislature

UNITED STATES IN RECONSTRUCTION 131

direct the organization of new governments in the
rebel states ; second, by what authority did Con-
gress prescribe the quaUfications of electors for the
operation? The answer to both questions was: By
virtue of the guarantee clause of the constitution.
Forfeited-rights, state-suicide and conquered-prov-
ince theories all agreed that Congress was the
proper organ to provide for the re-establishment
of state governments. By only the first, however,
was an indefinite continuance of the existing con-
dition of affairs considered anomalous. Sumner
and Stevens saw no states existing in the South,
and therefore felt no need of haste in the erection
of states there. The less radical thinkers saw
states without governments, and insisted upon the
speediest termination of such a paradox.

It is declared by the constitution that "the
United States shall guarantee to every state in
this Union a republican form of government."
The intention of the framers of the constitution
in this clause was precisely stated by Madison in
The Federalist, number 43: "The authority ex-
tends no further than a guaranty of a republican
form of government, which supposes a pre-ex-
isting government of the form which is to be
guaranteed." ^ A practical application of the
clause had been demanded in connection with the
Dorr rebellion in Rhode Island. The malcontents
sought to secure interference by the general gov-

1 Cf. also Elliott's Debates, V, 128, 182, 333.

132 THE CONSTITUTION OF THE

ernment on the ground that the limitation of the
franchise under the old charter organization was
unrepublican. President Tyler, however, wrote to
Governor King : " It will be my duty to respect
that government which has been recognized as the
existing government of the state through all time
past." ^ In other words, the term " guarantee "
was understood to express a corrective and not a
creative power. As Webster put it before the
Supreme Court in 1848 :

The law and the constitution go on the idea that the states
are all republican, that they are all representative in their
forms, and that these popular governments in each state, the
annually created creatures of the people, will give all proper
facilities and necessary aids to bring about changes which the
people may judge necessary in their constitutions.^

There can be no doubt that the construction of
the guarantee clause embodied in these passages
was the recognized principle of the law prior to
1867. Only by a complete rejection of the old
interpretation could the moderates derive from the
constitution the power of Congress to organize a
government for a state. To maintain themselves
in their somewhat unsteady position that a state
could not perish, they wrenched the guarantee
clause wholly away from its history. Nor was
their violence successful. For to the impartial
reader, the act of March 23, 1867, is much more

1 North American Review^ vol. 58, p. 398.

2 Works, VI, 231.

UNITED STATES IN RECONSTRUCTION 133

suggestive of an enabling act for a territory than
of a guaranteeing act for a state.

As the power to organize new governments
in the rebel states was based upon an interpreta-
tion of the word ** guarantee," so the right to
determine the suffrage was evolved from the ex-
pression "a republican form of government." No
authoritative definition of such a form exists in
our law. The Supreme Court has ascribed the
determination of its characteristics to Congress.^
It was held by the negro-suffragists that the
emancipation of the blacks and their admission
to the enjoyment of civil rights had effected a
modification in the conception of a "republican
form." This doctrine was adopted by all the
supporters of military reconstruction. " The new
freemen," said Chief Justice Chase, in Texas vs.
White, "necessarily became part of the people, and
the people still constituted the state. . . . And
it was the state, thus constituted, which was now
entitled to the benefit of the constitutional guar-
anty." The implication was that a republican
form under the new circumstances must include
negroes among the bearers of the suffrage. It
cannot be doubted that the decision of Congress
as to when a state has a republican form of gov-
ernment is final. But a decision which runs counter
to the facts of history as well as to the previous

1 Luther vs. Borden, 7 Howard, 42; Texas vs. White, 7 Wallace,
730.

134

THE CONSTITUTION OF THE

interpretation of our fundamental law may well
be regarded as revolutionary. The principle of
the reconstructionists was that impartial manhood
suffrage, without respect to color, was a charac-
teristic feature of a republican form of state gov-
ernment. In contradiction to this doctrine stood,
first, the historical fact that at the formation of
the constitution as well as at the era of the recon-
struction many if not most of the states excluded
negroes from the polls ; and second, the universally
recognized legal principle that, by the plainest
inference from the words of the constitution,^
the states were authorized to fix the qualifications
of electors absolutely at their discretion. Sumner
met both these obstacles boldly. He declared that
the whole history of the negro in this country gave
the lie to any claim that our state governments
were or had been republican, and he argued with
all the power of his learning that color was in no
sense a "qualification" of electors. The majority
of the reconstructionists declined to follow him
into such radical paths. They preferred to bridge
the abyss that yawned between the old system
and the new with a series of disjointed quibbles.

The doctrine of forfeited rights has been adopted,
as a theory of constitutional law, by the Supreme
Court,2 and for a long time, probably, the legal re-

1 Article i, section 2.

2 Texas vs. White, 7 Wallace, 700 ; cf. also i Chase's Decisions,
139, and Gunn vs, Barry, 15 Wallace, 623.

UNITED STATES IN RECONSTRUCTION 135

lations of the civil war and reconstruction will be
construed in accordance with this theory. With
its political bearings, however, the court has rightly
disclaimed all connection. The question as pre-
sented to the judiciary was : Has such and such a
state ever ceased to be a state of the Union .? For
answer to this interrogation, the court declared its
obligation to follow the political departments of
the government. A review of the acts of these
departments failed to reveal an express declaration
that any state had ceased to exist. The process of
reconstruction presented many situations which
could be explained as readily by assuming a revolu-
tion to have occurred as by strained constructions
of the constitution. It was the duty of the judi-
ciary, however, to preserve above all things the
continuity of legal development. This duty was
fulfilled, notably, in the elaborate argument, but
very doubtful logic, of Texas vs. White. Private
rights must be determined, then, on the theory
that a state cannot perish. With political relations
the case is different. Only the tension of a great
national crisis is likely to call for a review of the
Reconstruction Acts by the legislature; yet in such
an emergency these precedents of political action
may and probably will be regarded as much more
consistent with the views of Sumner and Stevens
than with the theory of forfeited rights.

MILITARY GOVERNMENT DURING
RECONSTRUCTION

By the acts of March 2 and March 23, 1867,
Congress laid down the lines on which the process
of reconstruction was finally to be carried through.
This legislation, supported by the public sentiment
of the North, practically settled the constitutional
issues of the war. Not that efforts were not made
to break the hold of the national military power
on the South. Sanguine lawyers of both sections
hastened to Washington to invoke the aid of the
Supreme Court in overthrowing what seemed pal-
pably unconstitutional proceedings under the Re-
construction Acts. Mississippi applied through
counsel for an injunction to restrain the President
from enforcing those acts,^ but in vain ; " govern-
ment by injunction" in this particular aspect failed
to win the favor of the court. Nor was any bet-
ter success attained when Georgia moved against
Stanton, the subordinate,^ rather than Johnson, the
chief. The court wisely recognized a sphere in

1 Miss. vs. Johnson, 4 Wall. 475.

* Georgia vs. Stanton, 6 Wall. 51.

136

GOVERNMENT DURING RECONSTRUCTION 1 37

which it would not intrude upon the discretion of
the executive. A more promising opportunity to
test the obnoxious laws arose in connection with
the writ of habeas corpus. For the better en-
forcement of the Civil Rights Act Congress in
1867 extended the appellate jurisdiction of the
Supreme Court to all habeas corpus cases that
involved United States laws. One McCardle, a
Mississippi editor, availed himself of this law to
bring before the court the question as to the
legality of his arrest under the Reconstruction
Acts. The supporters of these acts were very
distrustful of the court, especially as to its pos-
sible opinion on the clauses establishing military
government. When, therefore, the court denied a
motion to dismiss McCardle's appeal and heard
the case argued on its merits, the Congressional
leaders were greatly alarmed. Before an opinion
was rendered the House hurried through a repeal
of so much of the act of 1867 as was involved in
McCardle's case ; the Senate concurred with un-
wonted celerity ; and, though the scheme was de-
tected in time to receive the President's veto, the
bill became a law, and the court dismissed the
case for want of jurisdiction.^ The justices were
no doubt greatly relieved to escape the responsi-
bility of deciding this case. It was much better
from every point of view that the fierce contro-
versy of the times should be fought out entirely

1 Ex parte McCardle, 6 Wall. 324; 7 Wall. 512.

138 MILITARY GOVERNMENT

by the distinctively political organs of the gov-
ernment. After the failure of the McCardle case
the opposition to reconstruction found significant
expression chiefly in the messages of the Presi-
dent and the platforms of the Democratic Party,
neither of which carried much weight.

Meanwhile the process was carried to its con-
clusion by the military commanders to whom its
execution was entrusted. The functions of these
officers were, under the terms of the acts, of a
twofold character. First, the "adequate protec-
tion to life and property," which was declared
by the acts to be lacking, was to be furnished
by the military; second, the organization of a
new political people in each of ten^ states was
to be effected according to the method laid down
in the acts. The purpose of this essay is to set
forth the leading features of the military regime
in the fulfilment of the first of these functions.

I

The chief end of the Reconstruction Acts was
purely political. They were enacted for the pur-
pose of giving the negro the ballot in the ten
Southern states which had rejected the proposed
Fourteenth Amendment. Their whole operation,
therefore, must be regarded as incidental to this

1 Tennessee had been restored to her normal relations in the
summer of 1866, Ante, p. 119.

DURING RECONSTRUCTION 139

object. That the establishment of military gov-
ernment was a feature of the system they em-
bodied, was due primarily to the fact that the
introduction of negro suffrage was possible only
by the strong hand. The act of March 2 did
indeed allege that " no adequate protection for
life or property " existed in the states concerned,
and asserted the necessity of enforcing peace and
good order therein. But these declarations were
inseparably connected with the denunciation of
the existing state governments as illegal ; so that
the lack of protection for life and property could
be construed as arising from the illegality rather
than from the inefficiency of the de facto civil
authorities.

It was, indeed, contended by the more violent
radicals in the debates on reconstruction that the
actual conditions in the South were intolerable,
and that military force was needed for the mere
maintenance of peace, apart from political reor-
ganization. But the weight of evidence pointed
to the contrary. The reports of the army com-
manders and of the commissioners of the Freed-
men's Bureau for 1866 were almost uniformly of
a reassuring tone. Abuse of freedmen and Union
men was not only becoming less common, but was
also receiving adequate attention from the ordi-
nary state courts. General Wood declared that
in Mississippi substantial justice was administered
by the local judiciary to all persons irrespective

40

MILITARY GOVERNMENT

of color or political opinions. General Sickles
thought the same to be true for most parts of
South Carolina. General Howard, the head of the
Freedmen's Bureau, drew from the reports of his
subordinates a similar conclusion as to the whole
region covered by their operations.^ On the other
hand, General Sheridan found a good deal still to
be desired in Louisiana and Texas, and Sickles
admitted that certain specified counties of South
Carolina failed to afford a safe habitation for the
freedmen. The latter officer's explanation of the
existing disorder embodied a truth that was appli-
cable very generally through the South. He de-
clared that the outrages in the localities referred
to were not peculiar to that time.

Personal encounters, assaults and difficulties between citi-
zens, often resulting in serious wounds and death, have for
years occurred without serious notice or action of the civil
authorities ; . . . where it has hitherto seemed officious to
arrest and punish citizens for assault upon each other, they
can hardly be expected to yield with any grace to arrests for
assaults and outrages upon negroes.^

The general here touched upon a potent source of
evil to the South in the days of reconstruction.
Northern opinion tended to judge the rebel states
by social standards that never had been fairly
applicable to them. A laxity in the administra-
tion of criminal justice that had always prevailed

^ See reports annexed to that of the secretary of war for 1866.
2 Report of General Sickles for 1866.

DURING RECONSTRUCTION 141

was wrongly ascribed by the North to a xsx^x^ post-
bellinn spirit of rebellion and race hatred.

The most striking evidence that affairs were
assuming a normal condition in the South was
afforded by the extent to which military authority
and jurisdiction were withdrawn during the year
1866. The Freedmen's Bureau had been endowed
with judicial authority in cases in which the f reed-
men were not assured of equal rights with the
whites. But by the end of that year a gradual
relinquishment of this authority was completed in
most of the states. Only in parts of Virginia, Lou-
isiana and Texas were the special courts still in
existence at the time of the commissioner's report.
The ordinary administration of civil and criminal
justice for all citizens irrespective of race had thus
been resigned to the state courts. This process
had of course been rendered much more rapid by
the enactment of the Civil Rights Act, which gave
to the regular national judiciary jurisdiction over
cases in which equal rights were denied. By
action of the military authorities the "vagrancy
laws" and other offensive statutes passed by the
state legislatures for controlling the blacks had
been rendered nugatory, and the United States
courts manifested from the outset a resolution to
give to the Civil Rights Act an interpretation
that should effectively nullify any parts of the
" black codes " that had escaped the military
power. But all further labor by the judiciary on

142 MILITARY GOVERNMENT

the problem of securing equal civil rights for the
freedman was rendered for the time unnecessary
by the resort to military power to secure him equal
political rights.

In the spring of 1867, when the first Reconstruc-
tion Act went into effect, the general situation in
the South was probably not as satisfactory as it
had been at the beginning of the preceding winter.
Two causes had contributed to a reaction. In the
first place, the crops had in many parts of the
South failed entirely in 1866. The pressure of
famine began to be felt early in the winter, and by
the beginning of the next spring the distribution
of food through both public and private agencies
had assumed large proportions.^ Upon the rela-
tions between the races the crop failure had seri-
ous effects. Complaints arose in every direction
from the freedmen that their wages were not
being paid by their employers. The latter in too
many cases were quite unable to pay, in others
were disposed to take advantage of the situation
to escape their liability. Much friction naturally
arose out of the circumstances. To this was added
the bad feeling generated by the discussion of
negro suffrage in Congress and out during the
winter. As the resolution of the dominant party

1 By authority of a joint resolution of March 30, the Freedmen's
Bureau devoted half a million dollars to the purchase and distribu-
tion of food in the South. — Report of Commissioner Howard for
1867.

DURING RECONSTRUCTION 143

to enfranchise the blacks by force became clear
the disgust and despair of the whites tended
toward expression in violence, especially wherever
the freedmen manifested any consciousness of
unwonted power. There is little room to doubt
that the establishment of military government at
the South was indispensable to the Congressional
scheme of reconstruction ; but that such govern-
ment was necessary without reference to that
scheme is hardly to be conceded.

II

By the act of March 2, 1867, the ten Southern
states affected were divided into five military dis-
tricts, each to be commanded by an officer not
below the rank of brigadier-general. The primary
duties of these officers were

to protect all persons in their rights of person and property,
to suppress insurrection, disorder and violence, and to punish,
or cause to be punished, all disturbers of the public peace and
criminals.

For the execution of these duties the commanders
could either allow the local civil tribunals to try
offenders, or organize military tribunals for the
purpose. In case the latter method were em-
ployed, the sentence of the tribunal was to be
subject to approval by the district commander;
and, if it involved the death penalty, to the ap-
proval of the President. Interference with the

144 MILITARY GOVERNMENT

military under color of state authority was declared
null and void, while the existing civil governments
in the states were declared provisional only, and
subject to the paramount authority of the United
States, to abolish, modify, control or supersede.
In these provisions were defined the functions of
the commanders so far as the preservation of order
and the conduct of civil administration were con-
cerned. Their duties in the reorganization of the
state governments were set forth in the supple-
mentary act of March 23, and will be considered
elsewhere.

On the nth and 15th of March orders from
army headquarters made the following assignments
of commanders : First district, Virginia, General
Schofield ; second district. North Carolina and
South Carolina, General Sickles ; third district,
Georgia, Florida and Alabama, General Pope ;
fourth district, Mississippi and Arkansas, General
Ord ; fifth district, Louisiana and Texas, General
Sheridan.^ All these officers had distinguished
themselves in the war and had acquired reputa-
tions that guaranteed success in any military
capacity. But the positions in which they now
found themselves demanded other than purely

1 None of these officers remained in command of his district till
reconstruction was complete. The following is a list of their succes-
sors : First district, Stoneman, Webb, Canby; second district, Canby ;
third district, Meade; fourth district, Gillem, McDowell, Ames; fifth
district, Griffin, Mower, Hancock, Buchanan, Reynolds, Canby.

DURING RECONSTRUCTION 145

military qualities. They were to carry out a great
political policy, which was to be resisted not by
armed force, but by political means. They were
to act under a commander-in-chief who was a vio-
lent adversary of the policy, and under a General
of the Army whose conscientious efforts to main-
tain an impartial attitude failed to conceal his dis-
position to favor the policy. They had to deal,
moreover, with civil governments which their
commander-in-chief insisted were constitutional or-
ganizations, but which Congress had declared des-
titute of legality. Though military officers are not
supposed to have political opinions, the five gen-
erals could hardly fail to be influenced by their
personal conclusions on the great issues of the
day. It was generally known that Sheridan and
Pope were in favor of strong measures in dealing
with the South, and that Sickles would readily
adopt a radical line of action.^ If Schofield and
Ord, from whatever motives, failed to conform to
this example, it was inevitable that they should
be displeasing to the extremists in Congress and
should be sustained by the moderate Republicans
and the Democrats. Political, rather than military,
considerations would necessarily form the basis for

1 Cf. Blaine, Twenty Years of Congress, II, 297, note. This
note, satisfactory for the subject in connection with which I have
cited it, contains, however, a number of those inaccuracies of
statement and imphcation which mar every part of this useful but
untrustworthy work.

146 MILITARY GOVERNMENT

judgment upon the conduct of the commanders;
and in order to sustain their honorable reputations
a degree of tact and discretion in civil affairs was
essential that far exceeded anything that had been
required of them before.

As to the mass of the whites — the people, in a
political sense, of the South — no possible conduct
of the military rulers could be expected to win
their approval. The necessity of submission to
force had been thoroughly learned, and no organ-
ized resistance was attempted to the few thousand
troops that were scattered over the ten states.^
But the loss of the self-government which had
gradually been restored during the last two years
caused deep indignation and resentment. Apart
from the dread of approaching negro domination,
the mere consciousness that the center of authority
was at military headquarters, and not at the state
capital, disheartened the most moderate and pro-
gressive classes. It soon appeared, moreover, that
military government was not to be simply nominal ;
the orders of the commanders reached the com-
monest concerns of every-day life, and created the
impression of a very real tyranny.

At the outset all five generals announced a pur-

1 The adjutant-general's report of October 20, 1867, gives the
total force in the ten states as 19,320, distributed among 134 posts.
Richmond and New Orleans had about looo men each; but at no
other post were there as many as 500. Of the total force, over 70CX)
were in the fifth district — Louisiana and Texas.

DURING RECONSTRUCTION 147

pose, and most of them a desire, to interfere as
little as possible with the ordinary civil administra-
tion.^ Officials of the existing governments were
directed to continue in the performance of their
duties until duly superseded. All elections under
state laws were, however, forbidden, since the
negroes were to be clothed with the suffrage
before the popular will should again be consulted.
As to the administration of justice, whenever it
appeared to the military officers that the ordinary
courts were not sufficiently active or impartial in
their work, cases were transferred to the military
tribunals that were expressly authorized by the
Reconstruction Act. The punishment of blacks
by whipping or maiming, which was provided for
by recent state acts, was prohibited at once, in
accordance with a rider in the Army Appropriation
Act of March 2, 1867. It was inevitable that the
summary overriding of the established order, on
however moderate a scale, should engender con-
flicts of authority and consequent friction ; but the
only result was that the assertion of military con-
trol in the administration of both civil and criminal
law increased steadily in scope in all the districts
as the months rolled on. Each fresh recourse to
arbitrary authority aroused a great storm of re-
proach and denunciation from the Democratic

1 The most important orders and correspondence relating to
military government in its initial and determining stages are em-
bodied in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong.

148 MILITARY GOVERNMENT

press both North and South, and in June the
administration itself, through a published opinion
of Attorney-General Stanbery, harshly disapproved
the policy adopted by most of the officers. This
brought a crisis and Congress, hastily reassem-
bling, conclusively defined the scope of the military
power by the supplementary legislation of July 19.

Ill

The most harassing question that had to be
dealt with by the generals on assuming their com-
mands was that of their relation to the officers of
the existing state governments. The act of March
2 declared these governments to be provisional
only and subject to the paramount authority of
the United States "to abolish, modify, control or
supersede the same," but did not expressly em-
power the district commanders to wield this para-
mount authority. In pursuance of their express
power to maintain order the generals were, how-
ever, obliged to assume that a control over the
perso7inel of the state administration was implied.
Removals from office, accordingly, were made from
the beginning on grounds of inefficiency or of
obstruction to the work of registering the negroes.
As removals did not abolish the offices, but were
followed by appointments, military headquarters
tended to become the center of a keen struggle for
place and patronage. The mutual recriminations

DURING RECONSTRUCTION 149

of the parties to such struggles were echoed
throughout the land and contributed one more
element to the embarrassment of the commanders.
The manner of filling vacancies caused by re-
moval or otherwise also gave rise to serious dis-
cussion. Under military law there seemed no
doubt that an officer or soldier could be detailed
by the commander to perform the duties of any
position. This method was employed in many
cases ; but the supply of troops was entirely inade-
quate to the demand for non-military services and
resort had to be made to civilians. At this point,
however, important questions of constitutional law
arose. What was the legal status of a civilian
appointed, for example, governor of Louisiana.?
Was he a state or a federal officer } Certainly not
the former; for apart from the question as to
whether any state in the constitutional sense ex-
isted in Louisiana, no officer of such a state could
be conceived as deriving his tenure from the will
of an army officer. But if the appointee was a
federal officer, why should he not be subject to
the constitutional requirement of appointment by
the President, with the advice and consent of the
Senate .? Congress might, under the constitution,
vest the appointment of inferior officers in ** the
President alone, in the courts of law or in the
heads of departments";^ but there seemed no
basis for appointment by a major-general com-

1 Constitution, art. ii, sec. 2.

150

MILITARY GOVERNMENT

manding a military district. As a matter of fact,
the attempt to define the precise status of civilian
appointees was never successful. The radicals in
Congress thought they should be designated rather
as ''agents" of the district commanders than as
officers in any strict sense. ^ It was rather gratify-
ing than otherv/ise to reflect that these ''agents"
drew their salaries, not from the army appropria-
tion or any other national funds, but from the
treasury of the state.

Serious as were the questions involved in the
policy, the commanders were forced by sheer neces-
sity to make civilian appointments from the very
outset. In this practice the whole spirit of the re-
construction legislation required that only " loyal "
men receive preferment. Thus was begun, even
before reconstruction was effected, the process of
giving political position and power to a class which,
from the nature of the case, could have little in-
fluence with the masses of the Southern whites.
In the beginning the test of " loyalty" was a record
of opposition to secession and of positive hostility,
or at least lukewarmness, to the Confederate cause.
As the reconstruction proceeded the test was in-
sensibly transformed until, before the end was
reached, the prime qualification of the loyal man
was approval of the Reconstruction Acts and of
negro suffrage. Office-holding thus tended to be-
come the prerogative of those few whites who pro-

1 Cf. Wilson in Cong. Globe, 1st sess., 40th Cong., p. 527.

DURING RECONSTRUCTION 151

fessed allegiance to the Republican Party. Only
in connection with the registration and after the
enfranchisement was complete were the blacks
admitted to important official positions. ^

The actual practice of the commanders in respect
to removals and appointments varied in the differ-
ent districts. From Virginia to Texas the construc-
tion and application of the powers conferred by
the act grew more radical with the progress south-
ward. General Schofield, in Virginia, besieged
headquarters with supplications for authoritative
rulings upon his powers, and meanwhile exercised
the powers with great moderation. Civil officers
were not ''removed," but were "suspended" from
office and "prohibited from the exercise of the
functions thereof until further orders." ^ Civilian
appointments were made after consultation with
local judicial officers, and the appointees were duly
commissioned by the governor of the state. In
the Carolinas General Sickles was obliged to assert
his authority more freely. He was, however, able
to maintain cordial relations with Governors Worth
and Orr,2 and this fact smoothed his path some-
what. Removals were made only for positive mis-

1 Five negroes were appointed policemen in Galveston as early
as June 10, and there may have been other instances of this kind.
— Ann. Cyc, 1867, p. 715.

2 Cf, Special Orders, No. 50 and No. 54, in reference to certain
justices of the peace.

3 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong.,
p. 56.

152 MILITARY GOVERNMENT

conduct in office, and were but twelve in number
for the first three months of the command.^ Ap-
pointments were very numerous, a large number
of municipal offices falling vacant by expiration of
the incumbents' terms. The extent to which the
military power affected the most peaceful aspects of
social life is illustrated by the fact that a ** trustee
of Newbern Academy " was among those who were
clothed with official authority by orders from head-
quarters.^ In the third district General Pope as-
sumed at once an extreme position as to the scope
of his authority, and proposed to exercise it by
deposing Governor Jenkins, of Georgia, for ex-
pressing hostility to the Reconstruction Acts. The
governor saved himself by a plea of ignorance as
to the commander's will, and escaped with nothing
worse than a severe scolding, administered in a
letter which manifested the same easy self-con-
fidence and fluency of expression that had made
its author a little ridiculous in the second Bull
Run campaign.3 At the end of May the mayor,
chief of police and other municipal officers of
Mobile were summarily removed, and their places
were filled by '' efficient Union men." The occa-
sion for this was a disturbance that took place in
connection with a meeting at which Congressman
Kelley, of Pennsylvania, made an address. This
exercise of the power of removal and appointment

1 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong.,

DURING RECONSTRUCTION 1 53

attracted very widespread attention, and contro-
versy raged fiercely as to the justice and legality of
the action. It was but a few days later that General
Sheridan, at New Orleans, took the most decisive
step of all in removing Governor Wells, of Louisi-
ana, and appointing Mr. Flanders, a civilian, in
his place. Removals and appointments in minor
offices ^ had been very frequent in the fifth district,
but this last action brought the whole question to
a head. As department commander before the pas-
sage of the Reconstruction Acts, General Sheridan
had conceived a very poor opinion of the leading
politicians of both Louisiana and Texas, Governor
Wells among them,^ But Wells had influential
friends in administration circles at Washington,
where Sheridan was particularly disliked ; and
moreover, the extension of the discretionary power
of a commander to a sphere where very important
considerations of influence and emolument were
involved excited vehement criticism.

President Johnson was now overwhelmed with
demands that the acts of Sheridan and Pope
should be overruled. Attorney-General Stanbery
had been asked for an opinion on this and other
points in the interpretation of the reconstruction
laws. His opinion, rendered under the date of

1 The attorney-general of the state and the mayor and city judge
of New Orleans were removed March 27.

^ Cf. Sheridan's report for 1866, in Report of Secretary of War,
2d sess,, 39th Cong.

154 MILITARY GOVERNMENT

June 12, declared that these acts gave no authority
whatever for either removal or appointment of ex-
ecutive or judicial officers of a state.^ But Con-
gress sprang promptly into the breach, and by the
supplementary act of July 19 ^ gave to the com-
manders, in the most unqualified terms, power to
remove at their discretion any state officer, and to
fill vacancies either by the detail of an officer or
soldier, or "by the appointment of some other
person." Under this authority there was no
longer any room for doubt or ground for hesita-
tion. The act provided further that it should be
the " duty " of the commanders to remove from
office all persons "disloyal to the government of
the United States," and required that new ap-
pointees should take the " iron-clad oath." ^

Every facility was thus afforded for a complete
control of the persomiel of the civil administration
by the commanding officers. When the constitu-
tional conventions under the new registration met
in the various states strong pressure was put upon
the generals and upon Congress to bring about a
" clean sweep " of the existing officials, and a bill
requiring such a proceeding was brought before

^ The opinion is in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong.,

P- 275-

2 Given in McPherson, History of the Reconstruction, p. 335.

' The stringent oath required from officers of the United States,
by act of July 2, 1862. It could not be taken by any one who had
given " voluntary support " to any rebel government, state or Con-
federate. See infra, p. 184, note.

DURING RECONSTRUCTION 155

the House of Representatives. But General Scho-
field and other officers declared that the adoption
of this policy would render government impossible,
as there were not available enough competent per-
sons to fill the places vacated, if the iron-clad oath
should be required. Until reconstruction was nearly
completed, therefore, the commanders were per-
mitted to retain their discretion in the matter, and
changes were made, as a rule, oijly for good cause.^
Governor Throckmorton, of Texas, was removed
July 30 for having made himself an *' impediment
to the execution of " the Reconstruction Acts, and
was succeeded by a civilian named Pease.^ Gov-
ernor Jenkins, of Georgia, who had escaped the
power of General Pope, fell quickly before that
of General Meade, who succeeded Pope at the
beginning of 1868. The governor, having refused
to execute warrants on the state treasury for the
payment of the expenses of the constitutional
convention, was summarily deposed, and his func-
tions were assigned to General Ruger.^ Governor

1 By law of Feb. 6, 1869, the commanders were required to re-
move all officers who could not take the iron-clad oath. But at
that time military government prevailed only in Virginia, Missis-
sippi and Texas.

2 The unsuccessful candidate in the election at which Throck-
morton had been chosen governor.

3 The treasury officials, sympathizing with Jenkins, concealed
and spirited away the books of the treasury, whereupon the sus-
pected persons were brought before a military commission for
punishment. But General Meade's financial path was very thorny.
— See his report for 1868.

156 MILITARY GOVERNMENT

Humphreys, of Mississippi, was deposed in June,
1868, as an obstacle to reconstruction, and was
succeeded by General Ames. In other states
governors were removed, but only to facilitate the
transition from the military regime to the perma-
nent system under the new constitutions. Of the
lesser state officials the changes in personnel wq^yq,
naturally the most extensive in the larger towns
and cities. It was there that partisan zeal tended
to find its most heated expression ; and there also
were to be found in the greatest numbers the
Union men who could qualify for office under the
new law. Before reconstruction was completed,
therefore, the municipal administration in all the
principal cities was remanned by military authority.
The list in which this was wholly or partially the
case includes Wilmington, Atlanta, Mobile, Vicks-
burg, New Orleans, Galveston and Richmond.

IV

In respect to the relation of the district com-
manders to the laws of the states subjected to their
authority, there was room for a difference of opin-
ion similar to that which we have seen in respect
to the personnel of the governments. Power to
modify or set aside existing laws was not expressly
bestowed upon the commanders; and the recog-
nition of civil governments of a provisional char-
acter gave room for the implication that the

DURING RECONSTRUCTION 157

legislation of these governments was to have
permanent force. But a different view was acted
upon by most of the generals from the beginning.
Assuming that they were endowed with all the
powers incident to " the military authority of the
United States," and that their duty to " protect all
persons in their rights of person and property "
required the unlimited use of such powers, they
refused to regard the state laws as of any signifi-
cance save as auxiliary to the military government.
Whatever validity attached to such laws was due
to their tacit or express approval by the com-
mander. General Schofield, in giving to mili-
tary commissioners the powers of county or police
magistrates, directed them to be "governed in the
discharge of their duties by the laws of Virginia,"
so far as these did not conflict with national laws
"or orders issued from these headquarters."^
General Sickles specifically proclaimed in force
"local laws and municipal regulations not incon-
sistent with the constitution and laws of the United
States or the proclamations of the President, or
with . . . regulations . . . prescribed in the orders
of the commanding general."^ The implication
from these illustrations is clear that existing law
could be superseded by the military order — that
the district commander had legislative authority.
Against this interpretation of the Reconstruc-

1 First district, General Orders, No. 31, May 28, 1867.

2 Second district. General Orders, No. i, March 21, 1867.

158 MILITARY GOVERNMENT

tion Act Attorney-General Stanbery argued most
earnestly in his opinion of June 12. No power
whatever, he declared, was conferred on the com-
manders in the field of legislation. They were to
protect persons and property, but the sole means
for this purpose that the law gave them was the
power to try offenders by military commission;
save where such procedure was deemed necessary
the jurisdiction and laws of the old state organiza-
tion remained intact. But the ingenuity of Mr.
Stanbery was of no avail. In the supplementary
act of July 19 Congress declared explicitly that
the ten state governments, at the time the Recon-
struction Act was passed, "were not legal state
governments ; and that thereafter said govern-
ments, if continued, were to be subject in all
respects to the military commanders of the re-
spective districts, and to the paramount authority
of Congress." This phraseology assured to the
generals the same free hand in respect to state
laws as was assured in respect to state officers by
other parts of the act.

So far as the criminal law was concerned, the
failures of justice which had been alleged as jus-
tifying the establishment of military government
were attributed to the administration rather than
to the content of the law. The military commis-
sions which were constituted with various degrees
of system and permanency by the district com-
manders served very effectively to supplement the

DURING RECONSTRUCTION 159

regular judiciary in the application of the ordinary
state law. No extensive modifications of the law
itself, therefore, were considered necessary. When
policemen or sheriffs failed to arrest suspected or
notorious offenders the troops did the work ; when
district-attorneys failed to prosecute vigorously, or
judges to hold or adequately to punish offenders,
the latter were taken into military custody ; when
juries failed to convict, they were supplanted by
the military courts. It was fully realized from the
outset that, in the condition of public opinion in
the South, trial by jury could not be expected to
give strict justice to Union men or, in general,
to the freedmen. As an alternative, however, for
the general establishment of military commissions
a remodeling of the jury laws was an obvious
expedient. If juries could be empaneled from
blacks and whites indiscriminately, the influence
of the rebel sentiment would be neutralized. It
seemed axiomatic, moreover, that, if the freed-
men were qualified to vote, they were qualified for
jury service. Accordingly, we find that the more
radical commanders — Sickles, Pope and Sheridan
— used their authority to decree that the blacks
should be accepted as jurors. With the comple-
tion of the registration of voters, the attainment
of the end sought was simple ; court officers were
directed to make up the jury panels from the
registration lists.^ General Schofield, in Virginia,

1 Cf. Report of Secretary of War for 1867, vol. i, pp. 304 ss, 331 ss.

l60 MILITARY GOVERNMENT

with his usual wise conservatism, concluded that
this method of solving the problem would not be
satisfactory, and confined himself, therefore, to the
use of military commissions.^

Before the completion of the registration made
feasible the method finally employed, the com-
mander in Texas had sought to attain the end by
requiring jurors to take the " iron-clad oath." But
this was bitterly resented by the Southerners on
the ground that it practically excluded native
whites from the juries.^ Even the final method
caused great friction between the courts and the
commanders in Louisiana and Texas. The vast
extent and sparse population of the region included
in these states made the fifth district altogether the
most difficult to deal with in every phase of the
reconstruction process. When General Hancock,
succeeding Sheridan, assumed command in Novem-
ber, 1867, he formally revoked the order requiring
that jurors be chosen from the registered voters,
and put the old state laws in operation. This
action was an incident of the new commander's
general policy, which, as embodied in his famous

1 •' After full consideration I became satisfied that any rule of
organization of juries, under laws which require a unanimous ver-
dict to convict . . . must afford a very inadequate protection . . .
in a society where a strong prejudice of class or caste exists." —
Report of General Schofield in Report of Secretary of War, 1867,
vol. i, p. 240.

2 For the correspondence on this matter, see Sen. Ex. Doc, ist
sess., 40th Cong., No. 14, pp. 208-210.

DURING RECONSTRUCTION i6l

General Orders, No. 40, reversed that of his
predecessor. " Crimes and offenses," he declared,
"must be left to the consideration and judgment
of the regular civil authorities"; and in Special
Orders, No. 203, after reciting that Sheridan's or-
der as to jurors was acting as a clog on justice,
he asserted that in determining the qualifications
for jurors it was best to carry out the will of the
people as expressed in the last legislative act upon
the subject.^ The reluctance of General Hancock
to interpose, either through military courts or
through modification of the jury laws, in the ordi-
nary administration of justice, gave great offense
to the loyalists in the South and to the radicals
throughout the Union, and was held to have re-
sulted in a widespread revival of crime in the fifth
district.^

The changes in the jury laws by military author-
ity affected, of course, both civil and criminal law.
Of like scope was the summary abrogation by
General Sheridan of a Texas act of 1866 by which
the judicial districts of the state were rearranged,
the commander holding that the act had been
passed for the purpose of legislating two Union
judges out of office.^ Of the modifications of

1 For the whole subject see Hancock's report in Report of Sec-
retary of War for 1868; also Ann. Cyc, 1867, pp. 463-4.

2 See his report for a sharp correspondence with Governor
Pease, of Texas.

' Sen, Ex. Doc, ist sess., 40th Cong., No. 14, p. 218 et seq.

M

1 62 MILITARY GOVERNMENT

criminal law pure and simple, conspicuous ex-
amples are found in Sickles' General Orders,
No. 10, in which the carrying of deadly weapons
was forbidden, the death penalty for certain cases
of burglary and larceny was abolished, and the
governors of North and South Carolina were en-
dowed with the powers of reprieve and pardon.^
This last provision was probably suggested by a
case in which the military power had been effec-
tively invoked by the civil in the interest of mercy.
A negro in North Carolina had been convicted of
burglary and sentenced to death. The governor
believed that the case called for clemency ; but
under the state laws he had the power only to
pardon and not to commute. As a pardon was
not desirable, the case was laid before the district
commander, who then, by his paramount military
authority, commuted the sentence to imprisonment
for ten years.^

The operation of military government in con-
nection with the general police power of the states
is illustrated by General Sickles' prohibition of
the manufacture of whiskey, on the ground that
the grain was needed for food ; by his prohibition
of the sale of intoxicating liquor except by inn-
keepers; by General Ord's command that illicit
stills and their product be sold for the benefit of
the poor, on the ground "that poverty increases

^ Sen. Ex. Doc, ist sess,, 40th Cong., No. 14, p. 62.
2 Ibid., p. 76.

DURING RECONSTRUCTION 163

where whiskey abounds " ; and by General Sheri-
dan's summary abolition of the Louisiana levee
board and the assignment of its duties to commis-
sioners of his own appointment, " in order to have
the money distributed for the best interests of the
overflowed districts of the state." ^

As to the administration of justice in the field
of private Ir w., interference by the district com-
manders was f ^r the most part confined to action
in special cases where the proceedings of the
courts seemed inequitable or contrary to public
policy. Under the latter head fall a variety of
instances in which the circumstances of the war
and of emancipation were involved. Thus we find
General Schofield ordering a Virginia court to

1 The full reason assigned in the commander's order was : " To
relieve the state of Louisiana from the incubus of the quarrel which
now exists between his excellency the governor and the state legis-
lature as to which political party shall have the disbursement of the
four million dollars of ' levee bonds ' authorized by the last legis-
lature, and in order," etc.^ as above. — Sen. Ex, Doc, ist sess., 40th
Cong., No. 14, p. 250. General Sheridan's orders and correspond-
ence afford copious evidence that his temper was sorely tried by the
Louisiana politicians. In several of his dispatches to General Grant
his language in reference to the President's policy was perilously
near the line of insubordination; but it won for him the enthusias-
tic support of the radicals in the North, and the House of Repre-
sentatives passed a special vote of thanks to him for his services in
Louisiana.

1^4 MILITARY GOVERNMENT

suspend proceedings for collecting a judgment in
a case of assault committed in 1863.^ General
Sickles set aside a decree of the South Carolina
court of chancery which ordered that a fund,
raised to remount a Confederate cavalry force in
1865, but left unused in a Charleston bank, should
be returned to the contributors. The general held
that the money belonged to the United States.^
Again, a Charleston savings bank was obliged by
military order to pay, with interest, sums due to
certain soldiers who were in the gar/hons of Forts
Sumter and Moultrie in i860, ar I who had de-
manded their money, but in vain. Just before the
beginning of hostilities.^ General Ord suspended
proceedings looking to the sale of an estate on
account of a deed of trust for money due for the
purchase of negroes.^

Such examples of intervention by special orders
are numerous; a far-reaching modification of law
and procedure was attempted only by General
Sickles in the second district. His General Or-
ders, No. 10, of April II, 1867, with the later
supplementary decrees, assumed, as Attorney-Gen-
eral Stanbery complained, "the dimensions of a
code."^ The basis of this policy was the wide-

1 Sen. Ex. Doc, ist sess., 40th Cong., No. 14, p. 47.

2 Ann. Cyc. for 1867, art. " South Carolina."

* Sen. Ex. Doc, ist sess., 40th Cong., No. 14, p. 86.

* Ibid., p. 152.

^ Opinion of June 12, ibid.^ p. 281.

DURING RECONSTRUCTION 165

spread destitution among the people and the
general's conviction that extraordinary measures
were necessary to enable them to develop their
resources. There was no room for doubt that
the Southern states were all in a condition of
economic demoralization. As usual under such
circumstances, the complaints of debtors, based
generally on real hardship, were loud and wide-
spread. Not in the Carolinas alone, but all
through the South, the demand for stay laws
was heard. It would hardly have been surpris-
ing if all the district commanders, in the pleni-
tude of their powers and the benevolence of their
hearts, had sought to bring prompt relief by de-
creeing new tables. General Sickles, after describ-
ing the distress due to crop failure and debt, and
the " general disposition shown by creditors to en-
force upon an impoverished people the immediate
collection of all claims," declared that "to suffer
all this to go on without restraint or remedy is
to sacrifice the general good." Accordingly, he
announced the following regulations, among others,
to remain in force until the reconstructed govern-
ments should be established : Imprisonment for
debt was prohibited. The institution or continu-
ance of suits, or the execution of judgments, for
the payment of money on causes of action arising
between December 19,^ i860, and May 15, 1865,

1 South Carolina passed its ordinance of secession Dec. 20,
i860.

1 66 MILITARY GOVERNMENT

was forbidden. The sale of property upon execu-
tion for liabilities contracted before December 19,
i860, or by foreclosure of mortgage was suspended
for one year. Advances of capital, required " for
the purpose of aiding the agricultural pursuits of
the people," were assured of protection by the
most efficient remedies contained in existing law;
and wages of agricultural labor were made a lien
on the crop. A homestead exemption, not to be
waived, was established for any defendant having
a family dependent upon his labor. The currency
of the United States was ordered to be recognized
as legal tender. Property of an absent debtor was
exempted from attachment by the usual process ;
and the demand for bail in suits brought to re-
cover ordinary debts, "known as actions ex cojt-
tractn,'' was forbidden.

These sweeping enactments were followed by
others of a similar character. Having prohibited
the manufacture and regulated the sale of whiskey
within the district. General Sickles further decreed
that no action should be entertained in any court
for the enforcement of contracts made for the
manufacture, sale, transportation, storage or insur-
ance of intoxicating liquors. Having prohibited
discrimination in public conveyances between citi-
zens " because of color or caste," he gave to any
one injured by such discrimination a right of
action for damages. Finally, he abolished distress
for rent, and ordered that the crops should be sub-

DURING RECONSTRUCTION 167

ject to a first lien for labor and a second lien for
rent of the land.^

This interpretation of military authority as the
basis of a benevolent despotism called forth a
vigorous protest from Attorney-General Stanbery
in his opinion of June 12. But nothing was done
to interfere with the commander's proceedings
until he came in rude conflict with the national
judiciary. On the theory on which his decrees
were based they were valid against any authority
save Congress. Chief Justice Chase sat in the
circuit court at Raleigh in June, 1867, and pro-
ceeded in due course to decide cases and issue
process of execution to enforce judgments. A
marshal who undertook to execute in Wilmington
a judgment that fell within the stay decrees of
General Orders, No. 10, was prevented by the
commander of the post, who was sustained by
General Sickles. This action raised an issue of
a much more serious character than was involved
in the interference with merely state judicial
procedure. Protests were made to the adminis-
tration that the military authority established to
enforce the laws of the United States was being
employed to obstruct them. Steps were taken
by the federal district attorney in North Carolina
to proceed against the commander for resisting the
process of the federal courts. General Grant wrote

1 Gen. Orders, No. 32, May 30, 1867, Sen. Ex. Doc, ist sess.,
40th Cong., No. 14, p. 71.

1 68 MILITARY GOVERNMENT

to Sickles that " the authority conferred on district
commanders does not extend in any respect over
the acts of courts of the United States." Still
Sickles asked for time to explain ; but before his
explanation was completed, the President per-
formed the executive duty which Mr. Stanbery
had in June assured him could not safely be
avoided or delayed ; ^ for on August 26 General
Sickles was, by order of the President, relieved of
his command. His successor, General Canby,
promptly instructed the commander at Wilming-
ton not to oppose the execution of the circuit
court's judgment. Thus it was settled that, though
a debtor was protected against a creditor who was
a citizen of the same state, a foreign creditor was
assured of the customary relief. This situation
was only another example of the anomalies that
characterized the whole process of reconstruction.
To any protest against the injustice of such a con-
dition the ready response was: Hasten the work
of reconstruction, secure the admission of the states
to full rights, and all irregularities will cease.

In other districts than the second the apparent
necessity of relieving distress produced a few in-
stances of paternal modification of private law.
In June, 1867, General Ord, ''with a view to
secure to labor ... its hire or just share of the
crops, as well as to protect the interests alike of

^ Opinion of June 12.

DURING RECONSTRUCTION 169

debtors and creditors from sacrifices of property
by forced sales," suspended till the end of the
year the judgment sale of lands under cultivation,
crops or agricultural implements, on actions aris-
ing before January i, 1866.^ But this decree was
explicitly declared to be not applicable so far as
the United States courts were concerned. In Vir-
ginia, also, sales of property under deeds of trust
were suspended where the result would be to sac-
rifice the property or to leave families or infirm
persons destitute of support.^ Radical action on
behalf of debtors was strongly favored by many
in the South ; and this sentiment found expres-
sion in the constitutional conventions when they
assembled in the various states. In Mississippi
the convention petitioned General Gillem, Ord's
successor, to stay executions for debt by military
order ; but the general refused.^ Hancock, in
the fifth district, when asked if he would enforce
an ordinance for the relief of debtors, replied
that he regarded such an ordinance as beyond
the scope of the convention's authority.* Pope,
in the third district, referring to suggestions that
had been publicly made, said : ** I know of no
conceivable circumstance that would induce me to

1 Gen. Orders, No. 12, Sen. Ex. Doc, ist sess., 40th Cong.,
No. 14, p. 146.

2 Ann. Cyc, 1868, p. 760. ' Ibid., p. 508.

* Report annexed to Report of Secretary of War, 1868, vol. i,
p. 249.

170 MILITARY GOVERNMENT

interfere by military orders . . . with the relation
of debtor and creditor under state laws." ^ The
conventions in Georgia and Alabama, however,
adopted ordinances prohibiting various proceed-
ings "■ oppressive " to debtors and abolishing cer-
tain debts, to take effect with the new constitution.
General Meade, who had succeeded Pope, became
aware that great hardships were being caused by
the eagerness of creditors to press for executions,
in order to anticipate the operation of the ordi-
nances. As the only method of meeting this diffi-
culty, he proclaimed the ordinances in force at
once as a military order.^ Thus Georgia and Ala-
bama were for a time on the same plane with the
Carolinas in this particular matter.

VI

In the administration of state finances the same
arbitrary authority was exercised as in the matters
already considered. By the act of March 23 Con-
gress provided for the payment out of the treasury
of the United States of " all expenses incurred by
the several commanding generals, or by virtue of
any orders issued or appointments made by them
under or by virtue of this act." But the "fees,
salary and compensation to be paid to all delegates

1 Ann. Cyc, 1867, p. 365.

2 Report annexed to Report of Secretary of War, 1868.

DURING RECONSTRUCTION 171

and other officers . . . not herein otherwise pro-
vided for " were to be prescribed by the respective
conventions, which were authorized by the act to
levy and collect taxes for the purpose. A method
of interpretation no more liberal than that which
was applied by Congress to other provisions of the
act would have availed, if applied to these, to throw
the entire burden of state administration on the
national treasury.^ In practice, however, the Con-
gressional appropriations were employed only for
the expenses of the registration and of the elec-
tions, both for delegates to the conventions and
for ratification of the constitutions. The running
expenses of the state governments were paid from
the respective state treasuries. The condition of
the finances in most of the states was anything but
reassuring ; and the feeling of the property owners
toward reconstruction did not conduce to more than
usual promptness in the payment of taxes. Con-
siderable friction developed also in adapting the
administrative machinery of assessment, collection
and disbursement of moneys to the requirements of
military rule. Most of the difficulties were removed
through the generals' control over the perso7inel
of the administration. Their legislative authority
became necessary, however, in a number of cases

^ President Johnson, employing this method, rolled up an appal-
ling total ($16,000,000, certainly, and " hundreds of millions," prob-
ably) as his estimate of the sum necessary to carry out the Recon-
struction Acts. — Message of July 15, 1S67.

172 MILITARY GOVERNMENT

through expiration of the laws regulating tax levies
and appropriations. The assembling of the legis-
latures was, of course, forbidden ; and the prolonga-
tion of the laws beyond the term fixed by their
provisions was effected by orders from headquar-
ters.^ At the same time advantage was taken of
the opportunity to effect such changes in taxation
and expenditure as seemed desirable under the
changed circumstances. General Pope directed
that no payments should be made from the state
treasuries of his district, except on his approval,
in order that he might prevent further expenditures
for " bounties to soldiers in the rebel army for sup-
port to their families; pay of civil officers under
the Confederacy; providing wooden legs, etc., for
rebel soldiers ; educating rebel soldiers, etc., etc.,''
few of which he thought likely to be authorized by
the reconstructed state governments.^ In South
Carolina General Canby decreed in December ma-
terial reductions in several kinds of taxes ; he had
previously suspended the collection of a tax on
sales which, having been imposed by the last legis-
lature, had given rise to complaints because of its
retroactive effect.^

When the conventions met in the various states,
the military authority was required to settle vari-

1 E.g., Hancock's Special Orders, No. 40, of February 22, 1868.
Report of Secretary of War, p. 232.

2 Pope's report, annexed to Report of Secretary of War for 1867.
" Ann. Cyc. for 1867, p. 699.

DURING RECONSTRUCTION 1 73

ous questions connected with their financial opera-
tions. As we have seen, the conventions were
authorized by law to levy and collect taxes on
property for the payment of the delegates and for
other expenses. One of the first acts in each con-
vention was to fix the salary of delegates — at a
figure generally that aroused much enthusiasm
among the negro members. But to await the
levy and collection of a tax before enjoying the
emolument of office was a possibility that seriously
damped the ardor of the constitution-makers: in
fact, in view of the poverty of the people in gen-
eral and the antagonism of the whole tax-paying
class to the convention, such delay threatened
the further process of reconstruction with failure.
Hence recourse was had at once to the expedient
of an advance from the state treasury for immedi-
ate expenses on the security of the tax that was
levied by the convention. Such advance was
ordered by the commanders,^ as no authority of
state law for this appropriation of funds could be
found. But the power of the commanders was
called upon to restrain as well as to promote the
activity of the conventions. There was a marked
tendency on the part of these bodies to arrogate
to themselves governmental as well as constituent
functions, and to exceed the limits of the task pre-

1 It was for refusing to issue tlie warrants in conformity to this
order that the governor and financial officers of Georgia were re-
moved by General Meade. — Ante, p. 155.

174 MILITARY GOVERNMENT

scribed by the terms of the Reconstruction Acts.
This tendency the commanders firmly repressed.
In Mississippi, among other manifestations of this
spirit, the ordinance for the levy and collection of
the tax to cover the convention's expenses was
cast in a form that General Gillem refused to
approve. His refusal to enforce it caused the
convention to repeal it and pass another that was
satisfactory to the general.^ This episode illus-
trates the fact that, in the plenitude of their
powers as absolute rulers, the generals were
above the constituent assemblies of the inchoate
new states as distinctly as they were above the
governmental organs of the expiring old states.

The foregoing review reveals how far-reaching
was the authority of the military commanders in
the practical operations of state government. It
would be hard to deny that, so far as the ordinary
civil administration was concerned, the rule of the
generals was as just and efficient as it was far-
reaching. Criticism and denunciation of their acts
were bitter and continuous ; but no very profound
research is necessary in order to discover that the
animus of these attacks was chiefly political. The
instincts and traditions of popular government

1 Report in Report of Secretary of War, 1868, p. 585 et seq.
One clause of the second ordinance, which imposed a tax on rail-
roads contrary to an exemption in their charters, was annulled by
General Gillem.

DURING RECONSTRUCTION 175

would permit no recognition of excellence in any
feature of arbitrary one-man rule ; and the whole
system, moreover, was, in the eyes of the critics,
hopelessly corrupted by the main end of its estab-
lishment— negro enfranchisement. The influence
of this end was, in truth, so all-pervading that a
judgment on the merits of the administration of
the generals apart from it is almost impracticable.
Yet equity and sound judgment are sufficiently dis-
cernible in their conduct of civil affairs to afford a
basis for the view that military government, pure
and simple, unaccompanied by the measures for
the institution of negro suffrage, might have
proved for a time a useful aid to social readjust-
ment in the South, as preliminary to the final
solution of the political problems. But the op-
portunity for the most profitable employment of
such government had passed when, through Presi-
dent Johnson's policy, civil functions had been
definitely assumed by representative organizations
in the states. There would have been, indeed,
substantial merit in the consistent application of
either the Presidential or the Congressional policy
in reconstruction ; but there was only disaster in
the application of first the one and then the other.

THE PROCESS OF RECONSTRUCTION

Military government in the South, 1867-70, was
merely incidental to reconstruction proper. The
maintenance of order was but a negative function
of the district commander under the Reconstruc-
tion Acts ; his positive and most characteristic
duty was that of creating in each state subject
to him a political people. Having given to such a
people a definite existence, he was furthermore to
communicate to it the initial impulse toward the
organization of a government for itself, and then
to retire into the background, maintaining an atti-
tude of benevolent support until Congress should
decree that the new structure could stand alone.
The purpose of this essay is to sketch the proceed-
ings incident to the performance of these duties.

The creation of a people in each state was to be
effected by a registration of those citizens whom
Congress had declared qualified to perform political
functions. The Reconstruction Acts contemplated
both additions to, and subtractions from, the people
of the states as hitherto defined. Enfranchisement
of the blacks was to be accompanied by disfranchise-

176

THE PROCESS OF RECONSTRUCTION 177

ment of the whites. Not that distinctions of color
were embodied by express terms in the laws ; noth-
ing so invidious would have been tolerated at that
date, and nothing of the kind was necessary.

The enfranchisement of the blacks was fully
provided for in the single clause of the act of
March 23, 1867, requiring each commander to
''cause a registration to be made of the male
citizens of the United States, twenty-one years
of age and upwards, resident in each county or
parish in the state or states included in his dis-
trict," so far as such citizens were qualified to vote
under the act of March 2. The latter act had
contemplated a convention in each state *' elected
by the male citizens of said state, twenty-one years
old and upward, of whatever race, color or previous
condition." Under these clauses the inclusion
of the blacks as a part of the political people in
the South was as complete and unqualified as
language could make it.

When, on the other hand, the disfranchisement
of whites is considered, the Reconstruction Acts
were far less exact ; their language reflected the
marked differences of opinion that existed in the
dominant party on this subject. The feeling that
prominent rebels should not be allowed to resume
at once the political leadership they had formerly
enjoyed had been very strong, and had been ex-
pressed in the proposed fourteenth amendment
to the constitution. But with the definite adoption

1/8 THE PROCESS OF RECONSTRUCTION

of negro suffrage many Republicans manifested a
reaction from the earlier feeling. It was thought
that the anticipated evils of the black vote might
perhaps be mitigated by giving all the whites an
equal part in politics ; and doubtless some felt that
the imposition of negro suffrage and the prospect
of negro domination constituted a sufficient punish-
ment for the leaders in rebellion. Others, again,
among them some of the most extreme radicals,
found a certain doctrinaire satisfaction in coupling
with "universal suffrage" the principle of ''uni-
versal amnesty." By the first Reconstruction Act
all were excluded from taking part in the elections
who " may be disfranchised for participation in the
rebellion, or for felony at common law." By the
supplementary act of March 23 the oath prescribed
to be taken by every appUcant for registration em-
bodied an additional and much more definite dis-
qualification. Among other requirements, each was
obliged to swear or affirm as follows :

That I have never been a member of any state legislature,
nor held any executive or judicial office in any state, and
afterwards engaged in an insurrection or rebellion against
the United States, or given aid or comfort to the enemies
thereof; that I have never taken an oath as a member of
Congress of the United States, or as an officer of the United
States, or as a member of any state legislature, or as an
executive or judicial officer of any state, to support the con-
stitution of the United States, and afterwards engaged in
insurrection or rebellion against the United States, or given
aid or comfort to the enemies thereof.

THE PROCESS OF RECONSTRUCTION 179

The general purpose of these provisions is clear.
As against the two classes of extremists in Con-
gress, who on the one hand wished to disfranchise
all who had participated in the rebellion, and on
the other would give the ballot to all, a middle
opinion prevailed, and the same test was applied
in the matter of voting that had been embodied in
the proposed fourteenth amendment as to hold-
ing office. A stigma was put upon those who had
led the mass of the Southern people astray. But
while the disfranchisement of rebels who, before
becoming such, had held office was obviously the
general purpose of the laws, the application of the
provisions in practice gave rise to a host of diffi-
culties in detail. Who were to be regarded as
** disfranchised for participation in the rebellion " }
Was a man's word to be taken on the subject, or
was some other evidence to be sought for .? Could
the phrase be construed to exclude all who had
taken part in the rebellion } Again, were all rebels
disqualified who before engaging in insurrection
had held state office, or only such as had, in con-
nection with such office, taken the oath to support
the constitution of the United States .? And what
was the scope of the phrase "executive or judicial
office in any state".!* Did it include municipal
offices, and all the petty administrative and judicial
positions? Further, what was meant by "en-
gaging in rebellion" and by giving "aid or com-
fort " to enemies of the United States t Had the

l80 THE PROCESS OF RECONSTRUCTION

Confederate conscript engaged in rebellion as well
as the Confederate volunteer ? And did the giving
of food and drink and clothing to the Confederate
soldiers constitute giving aid or comfort to the
enemies of the United States ? All these and
many other questions confronted the district com-
manders as soon as preparations for the registra-
tion were begun. Appeals for an authoritative
construction of the law on these points came to
Washington from all the districts.^ Under date
of May 24 the attorney-general submitted an elab-
orate opinion on the whole subject, a summary of
which was afterwards transmitted to the district
commanders.

In most respects Mr. Stanbery's interpretation
as to disfranchisement was unexceptionable.
While tending, as in his views on military gov-
ernment, to strict restraint of the commander's
discretion, he found few questions upon which he
could fairly devise a construction that differed
from that of the radicals. As subject to dis-
franchisement he included all officers of the
United States, civil and military, and all civil
officers of any state who had, prior to rebellion,
taken the oath to support the constitution of the
United States. But neither municipal officers,
like mayors, aldermen and policemen, nor persons

^ For formal applications for such construction by Generals Scho-
field, Ord and Sheridan, see Sen. Ex. Doc, 1st sess., 40th Cong., No.
»4, PP- i5» 140, 193-

THE PROCESS OF RECONSTRUCTION l8l

who exercised mere agencies or employments
under state authority, Hke commissioners of public
works, bank examiners and notaries public, were
disqualified for registration. As to engaging in
rebellion, Mr. Stanbery absolved from responsi-
bility for such an offense all conscripts who would
not voluntarily have joined the army, and all offi-
cials who, during the rebellion, discharged func-
tions not incident to war, but merely necessary to
the preservation of order and the administration of
law. And again, "aid or comfort to the enemy "
he held was not involved in mere acts of charity,
where the intent was rather to relieve the indi-
vidual than to aid the cause. But organized con-
tributions of food and clothing for the benefit of
all persons concerned in insurrection would sub-
ject contributors to disfranchisement. So also
forced payments of taxes or assessments would not
disqualify those who paid ; but voluntary loans to
the Confederate government, or the purchase of its
securities, would disqualify.

On most of these points the attorney-general's
interpretation had been anticipated in provisional
regulations prescribed by the various commanders.
There were some statements in the opinion, how-
ever, which excited almost as much dissent in Con-
gress as the administration's view on the relation
of the military commanders to the civil authorities.^
Chief of these was Mr. Stanbery's declaration that

1 Cf. the preceding essay, passim.

l82 THE PROCESS OF RECONSTRUCTION

the taking of the prescribed oath by the applicant
was conclusive upon the registering officers as to
his right to be placed upon the list of voters. No
authority was given to the board of registration,
said the attorney-general, to make any further in-
vestigation of the applicant's qualifications. If he
swore falsely, he was liable to prosecution for per-
jury, and that was the end of the matter. It was
easy to perceive that, in the existing condition of
public sentiment in the South, a prosecution for
perjury afforded a very slight guarantee against
illegal registration. Again, Mr. Stanbery's opinion
was stoutly assailed where he held subject to dis-
franchisement only such state officers as had taken
the oath to support the constitution of the United
States. This rule, like other features of his opinion,
seemed likely to admit too freely to the franchise.
The perversity of the administration in respect
to registration was checked, like that in respect to
the military government's authority, by the supple-
mentary act of July 19. By this Congress declared
explicitly that the registering officers had the
power and the duty, in considering an applicant
for registration,

to ascertain, upon such facts or information as they can obtain,
whether such person is entitled to be registered . . . ; and
the oath required by said act [act of March 2] shall not be
conclusive on such question . • . ; and such board [of regis-
tration] shall also have power to examine under oath . . .
any one touching the qualification of any person claiming
registration.

THE PROCESS OF RECONSTRUCTION 183

The act further provided that disfranchisement
should extend to every one who had been in the
legislature or who had held executive or judicial
office in any state " whether he has taken an oath
to support the constitution of the United States or
not"; and construed the words "executive or judi-
cial office in any state" to include "all civil offices
created by law for the administration of any general
law of a state or for the administration of justice."
And finally, in order to exclude all possibility of
Presidential extension of the franchise, it was en-
acted that no person should acquire the right to
registration through any pardon or amnesty.

Through this legislation the rules of disfran-
chisement were fully determined. There was ob-
viously much room left for construction by the
registering officers in application of the rules to
particular cases. Where, as in the determination
whether a man had "engaged in rebellion," the
whole question might be made to turn on the
subjective motive of a given act, there was abun-
dant room for discretion. A much-discussed case
was that of a hypothetical parent who sent food
and clothing to his son, serving in the Confeder-
ate army,i but who had in no other way given aid
or comfort to enemies of the United States. He
must be disfranchised or not according as the

1 Generals Schofield and Pope held that giving food or clothing
would not disfranchise, but that giving a horse would. — Reports for
1867.

1 84 ^'^^^" PROCESS OF KECOXSTRUCTION

chief motive was regard for the son or regard for
the cause. A trained casuist would be troubled
to deal with the case ; the boards of registration
had as a rule a very small proportion of trained
casuists among them.

As a matter of fact the boards of registry had
been carefully constituted with a view to prevent
evasions of the disfranchising clauses. By the act
of ]\Iarch 23 the registration and elections were
to be conducted by boards of three, appointed
by the district commanders and consisting of
•'loyal officers or persons"; and loyalty was in-
sured by the requirement that all officers of regis-
try should take the oath prescribed by the act of
July 2, 1862 — the famous '* iron-clad oath." ^ The
utmost care was taken in every district that the
purpose of this provision should be fulfilled. Gen-
eral Schofield, in selecting registration officers, gave
preference, first, to officers of the army and of the
Freedmen's Bureau ; second, to honorably dis-

1 " I ... do solemnly swear that I have never voluntarily
borne arms against the United States since I have been a citizen
thereof; that I have voluntarily given no aid, countenance, counsel
or encouragement to persons engaged in armed hostility thereto;
that I have never sought nor accepted nor attempted to exercise
the functions of any office whatever, under any authority or pre-
tended authority in hostility to the United States; that I have not
yielded a voluntary support to any pretended government, author-
itv, power or constitution within the United States, hostile or in-
imical thereto; and . . . that ... I will support and defend the
constitution of the United States against all enemies, foreign and
domestic," etc., etc.

THE PROCESS Of RECONSTRUCTION 1 85

charged Union soldiers ; and third, to loyal citi-
zens of the particular locality.^ General Pope
deemed it inadvisable to employ soldiers in this
work, but constituted the boards exclusively of
citizens, including in every case one negro. This
bold recourse to the employment of the blacks, in
addition to the influence it exerted in stimulating
a large registration of the race, had the further
advantage of overcoming the difficulties of scant
material. Especially in the fourth and fifth dis-
tricts the number of white men who could take
the test oath was very small. In some localities
it was practically impossible to find three such
persons to constitute the registration board. For,
besides the ability to take the oath, there was
necessary also the willingness to take it and the
intelligence to perform the duties of office. The
state of public sentiment in the South was not
such as to encourage timid men to proclaim pub-
licly that their sympathies during the war had
been with the North ; ^ nor, where this difficulty
might be overcome, was the intellectual equip-
ment of the candidate apt to be on a par with
his courage. That the registration was effected,
under the circumstances, in any tolerable form

1 Report for 1867.

2 Cf. Ord, in his report for 1867 : " In the majority of counties in
my district there are but very it^s men who can take the test oath,
and these are not disposed to defy public opinion by accepting
oSce."

1 86 THE PROCESS OF RECONSTRUCTION

whatever, is in itself a tribute to the efficiency of
the military authorities. Like the practice adopted
in appointments to office under the existing gov-
ernments, the use of the test oath in the registra-
tion and election boards tended to elevate into
political prominence a class which lacked the moral
authority to conduct government in the Southern
states.-^ The organization and activity of these
boards gave coherence and dignity to the element
of Northern sympathizers of which they were
composed, and contributed very greatly to the
development of the Republican Party, already
started on its career in the South. There can
be no doubt that, for the ends in view, the pro-
visions of the Reconstruction Acts requiring the
test oath for members of the registry boards were
necessary. There is just as little doubt that the
exclusion of the dominant element of the white
population from active and official part in the
reconstruction added much to the bad feeling
which, without this particular stimulus, would have
been serious enough.

The process of registration occupied the summer
of 1867. By the act of March 23 it was to have
been completed by September i ; but the diffi-
culties and delays that arose in the fourth and
fifth districts led to an extension of the time to
October i, by the act of July 19. After the
completion of the registration the next duty of the

1 Supra, p. 150.

THE PROCESS OF RECONSTRUCTION 187

commanders was to provide for an election in each
state, at which the registered voters should express
their will, first on the question as to whether a
constitutional convention should be held, and sec-
ond, on the choice of delegates to such convention.
The number of delegates was fixed by the act of
March 23, but the details of apportionment were
left to the commanders.

At the outset the impulse of the disfranchised
leaders in the South had been to throw all their
influence against any participation by their follow-
ers in the reorganization of the states. "Refuse to
register," was the cry raised in many quarters;
''have no concern in the establishment of black
rule ! " Military government was declared to be
preferable to negro domination : better the tyranny
of the intelligent one than that of the ignorant
many. But as a matter of policy it was soon dis-
cerned that abstention from registration would be
less effective than participation therein. In dis-
cussing the Reconstruction Acts the radicals in
Congress had manifested much sensitiveness to
possible charges that they aimed to establish at
the South minority governments, supported by
bayonets. It was less important, they held, that
new governments should be established, than that
these governments should be fully representative
of the whole people, white as well as black.^ That
the new state constitutions, therefore, should cer-

1 Cf. Cong. Globe, ist sess., 40th Cong., pp. 143-151.

1 88 THE PROCESS OF RECONSTRUCTION

tainly be based upon the action of a majority, it
was provided by the act of March 23 that in the
elections, both on the calling of a convention and
on the ratification of the constitution, the vote
should be valid in the affirmative only if at least
half of the registered voters took part. In view
of these provisions the effective way in which to
thwart reconstruction was to register but refrain
from voting. This accordingly became the policy
of the extremists in the South. As a consequence
the registration proved very successful as to num-
bers ; the subsequent voting proved far less so.
The following table exhibits some features of the
result : ^

Registered

Vote on holding
Convention

WHITE

COLORED

FOR

AGAINST

Virginia

120,101

105,832

107,342

61,887

North Carolina

106,721

72,932

93,006

32,961

South Carolina

46,882

80,550

68,768

2,278

Georgia

96,333

95,168

102,283

4,127

Alabama

61,295

104,518

90,283

5,583

Florida

11,914

16,089

14,300

203

Mississippi "^

TOTAL :

139,690

69,739

6,277

Arkansas ^

),

66,831

27,576

13,558

Louisiana

45,218

84,436

75,083

4,006

Texas

59,633

49,497

44,689

11,440

From this it appears that in four of the states —
South Carolina, Alabama, Florida and Louisiana

1 Compiled from House Ex. Doc, No, 53, 2d sess., 40th Cong.

2 No distinction by color made in registering.

THE PROCESS OF RECONSTRUCTION 189

— the new electorates embodied pronounced negro
majorities: in three — Virginia, North Carolina
and Texas — the whites were in more or less con-
siderable excess ; and in one, Georgia, the races
were very evenly balanced. Of the two states in
the fourth district, where General Ord felt that
the spirit of the reconstruction policy was opposed
to any distinction of voters by color, Mississippi
belonged notoriously to the class in which the
blacks were in the majority, and Arkansas to that
in which they were in the minority.^ As to the
number of persons disfranchised by the operation
of the laws, no trustworthy figures were attainable.
By various methods of estimate, more ingenious
than convincing, the commanders arrived at hy-
pothetical results in some states : e.g., Virginia,
17,000; North Carolina, 12,000; South Carolina,
9000; Georgia, 10,500; but no especial validity
was attached to the figures.

As to the attitude of the whites on the hold-
ing of conventions, the insignificant negative vote
in most of the states is eloquent. The policy of
abstention was not, however, successful in any
state at this time.^ It happened, indeed, that just
at the time of th« voting a hopeful feeling pre-

1 In i860 the population stood as follows:

WHITE BLACK WHITE BLACK

Mississippi 353,899 437,404 Arkansas 324,143 111,259

2 It will be seen by the table that the excess of the vote over
half the registration was small in most of the states, and particularly
so in Florida and Texas.

IQO THE PROCESS OF RECONSTRUCTION

vailed in the South, due to general Democratic
gains in Northern state elections in the autumn,
and especially to the rejection of a negro-suffrage
amendment in Ohio by 50,000 majority. Under
the influence of these events many Southern
whites who had resolved upon abstention actually
voted, trusting to be saved by the Democracy
from the most dreaded consequences of black
rule. Moreover, the whole influence of the mili-
tary authorities was directed toward securing a
large vote, and various devices of the Conserva-
tives for keeping the negroes from the polls were
met by orders from headquarters that were hardly
compatible with accepted ideas as to regularity at
elections. As in the registration, so in the voting,
the generals assumed with the most unconven-
tional frankness that their duty required them to
insure the participation of the newly enfranchised
citizens. Not the passive possession, but the
active exercise, of political rights by the negroes
was held to be the essential principle of the Re-
construction Acts. The limits of time set for the
registration were repeatedly extended, to secure
a full enrollment of the blacks ; and when the
elections came the same expedient was employed
to secure a full vote. General Schofield, in Rich-
mond, finding at the time set for closing the polls
that in certain precincts many blacks had failed to
vote, forthwith issued an order extending the time
and permitted votes to be received for twenty-four

THE PROCESS OF RECONSTRUCTION 191

hours longer. The result was to reverse the
choice of delegates to the convention from one
district.^ In Georgia also two additional days
were, after the voting had begun, added to the
three fixed for the elections in the original order.
These measures, it will be perceived, affected not
only the issue as to whether a convention should
be held, but also the membership of that body if
the vote resulted in favor of its assembling ; for
both matters were voted upon at the same time.
As party organization then stood, a large negro
vote meant a Radical majority in the convention.

The measures just noticed were designed to
counteract the effects of the negroes' own igno-
rance or lack of experience at the polls. In the
orders regulating the elections, the commanders
had embodied very explicit injunctions to prevent
the whites from interfering with the other race.
Not only force and intimidation, but also threats
of discharge from employment and other like
methods of "discouraging" the participation of
the blacks, were made offenses subject to military
jurisdiction. 2 Moreover, from the beginning of
their authority the commanders had contributed
much to disorganize opposition to reconstruction

1 For the protest of candidates and the general's reply, see Report
of Secretary of War for 1867, p. 389 et seq. The general's justifi-
cation is clever but somewhat sophistical, as it evades the most
serious element in the case of the protestants.

2 Cf. Pope, Gen. Orders, No. 59, Ann. Cyc. 1867, p. 27.

192 THE PROCESS OF RECONSTRUCTION

by requiring office-holders, on penalty of dismissal,
to abstain from all share in such opposition. It
was in the office-holding class that the natural and
customary leaders of the old political people were
to be found. General Pope had gone even further
in direct promotion of the new policy by decree-
ing that the printing patronage of the state should
be given to such newspapers only as should not
oppose reconstruction.^ The general's own report
concedes that the effect of this order in silencing
the press was not all that might have been de-
sired ; but it must have had some influence in
developing support for the policy he represented.
Much complaint was made in the South and else-
where that the orders just mentioned involved
a policy of arbitrary restriction upon freedom of
speech and of the press. No such general policy
was adopted by any commander. The require-
ment upon office-holders was no more restrictive
of free speech than the orders of modern days in
respect to "offensive partisanship" and "perni-
cious activity," and may fairly be regarded as
indispensable to the performance by the com-
manders of their official duties. General Pope's
newspaper order was perhaps less defensible ; but
it merely adopted in the open the policy which
was quietly but consistently pursued by legisla-
tive bodies, both state and national, of assuring
an official subsidy to that part of the press that

1 Report for 1867.

THE PROCESS OF RECONSTRUCTION 193

was in sympathy with the dominant party in the
government. 1 As a whole, while the military
authorities gave much positive support to the
developing party of reconstruction in the South,
and while a surveillance was exercised over press
and platform to prevent incitations to violence, it
cannot fairly be said that freedom of speech and
the press was interfered with. Indeed, the lati-
tude permitted by the commanders was perhaps
accountable for many of the difficulties met with
in bringing reconstruction to its conclusion. The
policy of the generals, in fact, is strongly sugges-
tive of the ancient maxim of benevolent des-
potism: "Let my subjects say what they like,
so long as I may do what I like."^

II

The constitutional conventions determined upon
by this first election were in session during the
winter of \'^6'j-6'^, and most of them had fulfilled
their function by the middle of the ensuing spring.
As required by the Reconstruction Acts, the time
and place of the conventions were set by orders
from the military headquarters of the respective

1 Cf. the Sundry Civil Appropriation Act of March 2, 1867, sec. 7,
designed to assure federal patronage in the South to papers sup-
porting reconstruction.

2 For two incidents illustrating the relation of the military au-
thorities to the press, see Ann. Cyc, 1867, pp. 51 and 520.

o

194 THE PROCESS OF RECONSTRUCTION

districts. Naturally, there was an ostentatious
exchange of civilities between each convention
and the district commander, as well as a less
public but very powerful current of influence run-
ning from headquarters to the convention hall.
The opponents of reconstruction denounced with
great severity the subservience of the constitution-
makers of a ** sovereign state" to a "military
satrap." As a matter of fact, however, the gen-
erals did stalwart service for the cause of con-
servatism, and hence for the interests of the class
by whom they were abused. It was inevitable,
under all the circumstances of the situation, that
radical ideas, social and economic as well as politi-
cal, should be strongly represented among the
members of the conventions. Southern Union-
ists, in whom rankled the memories of long op-
pression and ostracism, ambitious Northerners,
filled with ideals of a new South modeled on the
lines of New England, and negroes ^ less than
three years out of slavery, were the classes numeri-
cally most important in the conventions. Modera-
tion was hardly to be anticipated from any of
these. There was, however, an element of sober

1 The following was the division of delegates on the color line,
so far as fiofures have been obtainable :

WHITE

BLACK

WHITE

BLACK

Virginia 80

^-5

Georgia

133

zz

North Carolina 107

13

Florida

28

18

South Carolina 34

63

Alabama

92

16

Texas

81

9

THE PROCESS OF RECONSTRUCTION 195

and substantial Southerners — representatives, for
the most part, of the professional and business
classes who had voluntarily withdrawn from
politics when the Whig Party disappeared — on
whom it now devolved to wield a decisive influ-
ence against radicalism. It was to the judicious
policy of this class, supported by the moral force
of the military commanders, that was due the
moderate character, as a rule, of the new con-
stitutions.

No influence, however, was strong enough to
keep in the background the many non-political
questions involved in the relations of the races.
Debates were long and vehement on a variety of
propositions which ultimately failed of adoption in
most states. Among the mooted points were the
expediency of giving freedmen a claim against
their masters for services rendered in slavery after
the date of the Proclamation of Emancipation ;
the admission of blacks and whites to the same
schools ; the freedom of intermarriage between
the races ; ^ and the recognition of equal rights in
public places and conveyances as incidental to
equality in civil rights. On the last point the
Radicals were to a great extent successful. It was

1 In almost every convention the Conservatives proposed a con-
stitutional prohibition upon intermarriage. In several cases the ne-
groes, with a certain grim humor, agreed to accept the proposition
on condition that an additional clause should provide that any white
man cohabiting with a negro woman should be punishable by death.

196 THE PROCESS OF RECONSTRUCTION

upon the question of the suffrage, however, that
differences of opinion were most obstinate ; and
here also the Radicals in a number of states pre-
vailed over all restraining forces.

By section five of the first Reconstruction Act
Congress had in effect required that the new con-
stitutions should secure the franchise to all male
citizens twenty-one years of age and ''not dis-
franchised for rebellion or felony." No option was
left as to the enfranchisement of the negroes ; as to
disfranchisement of the whites the quoted phrase
left the conventions with free hands. In six of the
states this liberty resulted in a proscription of the
late secessionists.^ Alabama, Arkansas, Missis-
sippi, Texas and Virginia denied the franchise to
those whom the proposed fourteenth amendment
disqualified for office, i.e.^ those who, after having
taken the official oath to support the constitution,
had gone into rebellion.^ Alabama and Arkansas
added to the disfranchised any who had " violated
the rules of civilized warfare," — a provision di-
rected chiefly at those who had refused to accord
to negro soldiers the customary military treatment.

1 The constitutions are all in Poore's collection. Abstracts, giv-
ing the franchise clauses, may be found in McPherson, Reconstruc-
tion, p. 326 et seq.

2 This section of the Virginia convention's draft failed of ratifica-
tion. On the other hand, in the first three of the states enumerated
the disqualification was made somewhat more severe by applying
it to all who were excluded from registration under the Reconstruc-
tion Acts.

THE PROCESS OF RECONSTRUCTION 197

Louisiana, whose provisions were perhaps the
most severe of all, disqualified all who had held
military or civil office for as long as a year in the
Confederacy, all who wrote or published news-
paper articles or preached sermons "in advocacy
of treason," and all who voted for or signed the
ordinance of secession. Eligibility to office was
in most states denied on the same grounds as the
right to vote. Mississippi, however, made ineligi-
ble all who voted for secession and all who held
office under the Confederacy, together with every
one who voluntarily gave aid or encouragement to
the Confederates;^ and Virginia achieved the
same purpose by requiring the iron-clad oath of
every officer. ^

These proscriptive provisions of the new con-
stitutions were for the most part not absolute in
their terms. Recourse was had in Louisiana to
that expedient, common in the political and reli-
gious commotions of recent centuries, which puts a
premium on self-stultification : the removal of his
disabilities was offered to any man who would

1 This provision contained a clause the motive of which seems
somewhat obscure : " Provided, that nothing in this section, except
voting for or signing the ordinance of secession, shall be so con-
strued as to exclude from office the private soldier of the late
so-called Confederate states army." This probably reflects the
familiar sentiment, that maintenance of one's convictions by physi-
cal force is essentially nobler than by moral or intellectual activity.

2 This was carried in convention against a very energetic protest
by General Schofield. Cf. Ann. Cyc. for 1868, p. 759.

198 THE PROCESS OF RECONSTRUCTION

publicly acknowledge that the late rebellion was
morally and politically wrong and express regret for
his participation therein. ^ In Alabama, Arkansas
and Mississippi works rather than professions were
assumed as the proper test of political regeneration,
and relief from disabilities was ipso facto secured to
any one who had ** openly advocated " or '' voted
for " or " aided in " the reconstruction and who
accepted the equality of all men. Most of the con-
stitutions also authorized the legislatures, generally
by extraordinary majority, to remove disabilities.
The incorporation in the office-holder's oath of a
clause expressing acceptance of ''the civil and
political equality of all men before the law " was a
common feature of the new constitutions. There
was of course nothing of a proscriptive or stulti-
fying character in this : for the phrase denoted
legal obligation, not moral conviction, on the part
of one who adopted it.

Alabama was the first of the states in which the
work of the constitutional convention was con-
cluded. Between November 5, 1867, when the
Alabama convention adjourned sirie die, and May
15, 1868, when the draft of Mississippi's consti-
tution was completed, all the other states save

^ This adaptation of the theological doctrine of repentance and
confession to the exigencies of political life need not be taken to
signify a peculiarly keen moral and religious sense in Louisiana, as
the history of her politics in the years immediately following very
clearly shows.

THE PROCESS OF RECONSTRUCTION 1 99

Texas reached a like stage in the process of re-
organization. The next step required by the
Reconstruction Acts was the submission of each
draft constitution to the registered voters of the
state for ratification. For the purposes of this
election the qualification of voters and the author-
ity of the commanders ^ were the same as in the
previous election. The contest throughout the
South assumed a distinctly fiercer form during
this second canvass. Race and class animosity
had been whetted by the discussions centering
about the conventions ; the provisions of the new
constitutions afforded definite issues on which
party organizations, hitherto inchoate, were
molded into efficiency ; and the bearing of the
results of the elections on national issues and on
the outcome of the approaching Presidential can-
vass brought into play influences from without
that in no way tended to allay the bitterness
within the states.

Party lines, so far as they were drawn at all in
the rebel states under the Presidential regime, fol-
lowed ante-be Ihini prejudices. Though very ener-
getic efforts were made in 1865-66 by the leaders
of the National Republican Party to extend their
organization throughout the South, the results were
not satisfactory. Few Southern whites ventured
to identify themselves with a name of such evil

1 Except as to the date of the vote, which was fixed by the con-
vention itself.

200 THE PROCESS OF RECONSTRUCTION

repute in their section, and so far as it achieved
coherence at all the party consisted mainly of
Northerners. The Democratic Party also failed
to attract into full fellowship the leading South-
erners. The white Unionists, who were most
conspicuous in the political people and the state
governments established under Presidential aus-
pices, were mostly of Whiggish antecedents, and
had supported Bell and Everett in i860. To them
Democracy meant in the South secessionism and
in the North economic and political heresy. On
the vital and pressing questions touching the status
and the future of the freedmen opinion in the South
was commonly classified as *' radical" and "conserv-
ative," and these terms were assumed as the
official titles of various organizations in the elec-
tions of 1866. In some states the name " Con-
stitutional Union Party " was employed by the
conservatives, suggesting the consciousness of
affinity with the ideas represented by Bell and
Everett in i860. But upon the adoption by Con-
gress of the policy expressed in the Reconstruction
Acts a readjustment of opinion and organization
began. Conservatives and Radicals at once put
forth every effort to draw into their respective
camps the freedmen, now the decisive factor in
politics, but the success of the latter, prepared by
the widespread formation of Union Leagues and
by the teachings of the Freedmen's Bureau, was
soon apparent to all. The Radical organizations,

THE PROCESS OF RECONSTRUCTION- 201

deserted by most of the Southern whites who had
still clung to them, but swollen by the hosts of
newly enfranchised freedmen, assumed everywhere
the name of Republican and established relations
with the national organization of that party.
Among the Conservatives divided counsels for a
time prevailed. Most were for opposing recon-
struction a rotitrajice ; but some still hoped, by
accepting negro suffrage, to preserve a control
over the blacks, though without joining the
Radical Party. This hope however, practically
disappeared during the process of reconstruction,
and the end of that process revealed in every state
a coherent organization bearing the name and sup-
porting the policy of the National Democratic
Party. On the question of ratifying the constitu-
tions framed by the conventions, party lines were
perfectly clear, and party feeling was intensified
in bitterness by the consciousness that the issue
was indisputably that of race domination.

In view of the extreme feeling that prevailed,
especially in the states whose new constitutions
contained disfranchising provisions, the responsi-
bility of the district commanders became exceed-
ingly heavy as the elections approached. The
letter of the law required that the military power
should assure to every registered voter an oppor-
tunity to express his will. It was not difficult to
construe the spirit of the law as requiring that the
policy of Congress should not be allowed to fail

202 THE PROCESS OF RECONSTRUCTION

through the defeat of the constitutions. Most of
the commanders maintained a rigorous adherence
to the letter of their authority, and in their regula-
tions for the conduct of the elections displayed a
very high degree of practical wisdom.^ General
Pope, however, always inclined to radical measures,
infused into his orders for Alabama rather more of
the partisan spirit than the President was disposed
to put up with, and accordingly General Meade
was appointed to supersede him in January, 1868.
On two questions having an important partisan
bearing, General Pope had taken radical ground.
Election ofificers had been authorized to receive
the votes of persons who were not registered in
the precinct at which they offered to vote ; and
voting for state officers was permitted at the same
time with the voting on the constitution. Both
these expedients were in the interest of Repub-
lican success in the state, and both afforded great
facilities for fraud ; but the first would enable very
many negroes to vote, who in the unsettled condi-
tions of the time had changed their domicile since
registration, and the second would hasten the in-
auguration of the new regime. The most serious
objection to the double elections lay in the fact

^ Cf. especially the report of General Gillem on the election in
Mississippi, annexed to Report of Secretary of War for 1868. The
excellent work in this case was the result of the lessons learned in
some very unfortunate experiences in Arkansas several months
earlier, on which, cf. same report.

THE PROCESS OF RECONSTRUCTION 203

that very many of the Republican candidates for
office 1 were at the same time election officials,
charged with the supervision of the vote in which
they had so intimate an interest.^ But General
Pope had only anticipated a policy which was about
to receive a high and conclusive endorsement.

The radical leaders in the Fortieth Congress
were as watchful in the winter of iZ^y-^^ as they
had been in the preceding spring and summer for
the promotion of their policy in the South. No
point was to be lost that could contribute to the
success of reconstruction. In view of recent
successes of the Democrats in the North a Re-
publican state more or less in the South might
decide the next Presidential election. The chief
uncertainty as to the outcome of the vote on rati-
fying the constitutions in the South turned upon
the requirement that a majority of the registered
voters should participate in the election in order
that a result favorable to ratification should be
valid. A bill to eliminate this requirement and
make a majority of the persons voting sufficient to
ratify, and also to authorize voting for state offi-
cers and congressmen at the same election, was
passed by the House early in the session (Decem-

1 The Republican state ticket was nominated by the constitu-
tional convention, at the close of its official work.

2 General Meade desired to separate the elections, but was dis-
couraged by General Grant. Cf. correspondence, Report of Secre-
tary of War, 1 868, p. 84 et seq.

204 ^^^ PROCESS OF RECONSTRUCTION

ber 1 8). In the Senate the measure dragged
somewhat, apparently awaiting the outcome in
Alabama, where the election was set for Febru-
ary 4. In that state the Conservative leaders
abandoned hope of defeating ratification by voting
against it, and adopted a formal policy of absten-
tion. An energetic campaign in this sense was suc-
cessful. The vote stood: for ratification, 70,812;
against ratification, 1005 ; total, 71,817, over 13,000
less than half the registration. ^ The white vote
for the constitution was only 6702, as compared
with 18,553 in favor of the convention at the earlier
election.

The result in Alabama caused a real sensation
and much alarm among the friends of reconstruc-
tion. There was no further delay in the Senate
as to the proposed modifications in the law. The
bill was pressed with some vigor, in the hope that
it might become applicable to the election in Ar-
kansas, which was fixed for March 13. President
Johnson did not exhibit the same energy that
characterized Congress ; he neither approved nor
vetoed the bill, and it only became law, by lapse
of time, on March 11. At that date all the orders
for the Arkansas election had long been promul-
gated and the facilities for communication made
modifications impracticable. Indeed the district

1 Meade to Grant, Report of Secretary of War, 1868, p. 97. A
revision of the registration in view of this election had afforded an
opportunity for material additions to the lists of qualified voters.

THE PROCESS OF RECONSTRUCTION 205

commander, General Gillem, was unaware of the
existence of the new law until after the election
had begun,^ and accordingly the provision for vot-
ing in another precinct than that of registry was
not enforced. Elections for state officers, how-
ever, were held simultaneously, by ordinance of
the convention, the commander tolerating, but as-
suming no authority over them.^ The result of
the vote on the constitution was close, the returns
showing a majority of 13 16 for ratification, and a
total vote of 54,510 out of Tl.y^i^ registered voters.
The closeness of the vote gave great importance
to the somewhat startling fact that in one county
the vote exceeded the registration by 1195. In-
vestigation revealed, however, that the registrars
in this and two other counties acted on unofficial
information that the act of March 1 1 had become
law, and received the votes of persons who claimed
to be registered in counties other than those in
which they offered to vote.

In the six other states which voted on their
constitutions during the spring and summer the
act of March 1 1 had full application, and in five of
them the results fulfilled the desires of those who
enacted it. During April and May the two Caro-
Hnas, Georgia, Louisiana and Florida ratified their

1 Report of Secretary of War for 1868, p. 535.

2 He declined to prohibit registrars from being candidates, on
the ground that he had nothing to do with state elections. Report
of Secretary of War, 1S68, p. 548.

206 THE PROCESS OF RECONSTRUCTION

constitutions and simultaneously elected Repub-
lican state officers and congressmen. In Missis-
sippi the Democrats entered upon a particularly
desperate campaign to defeat the constitution, and
though they were distinctly in a minority in the
registration,^ they carried their point in the voting.
On June 22 the constitution was rejected by over
7000 majority, and at the same time the Demo-
cratic ticket for state offices was successful.

It is worthy of note that in all the states in
which the act of March 11 was operative at the
elections the vote for state officers and congress-
men was cast, not by the electors qualified under
the new constitution, but by those registered under
the Reconstruction Acts.^ This was provided for
in the act of March 11. The provision had dia-
metrically opposite effects according as the states
had or had not inserted severe disfranchising
clauses in their constitutions. Where such dis-
franchisement existed, the effect was to install a
state government by vote of an electorate larger
than that under which the future government was
to be carried on. Where there was no disfranchise-
ment in the constitution, the smaller class of regis-
tered voters imposed their will at the outset on

^ Address of Democratic Associations to the People. — Ann. Cyc,
1868, p. 513.

2 In some states this end was secured by the requirement that
the vote for state officers should be on the same ballot as that on
ratification. Cf. constitution of Arkansas, schedule, sees. 2 and 3.
Poore, Charters and Constitutions, I, 152.

THE PROCESS OF RECONSTRUCTION 207

the larger class of citizens. It probably did not
escape the notice of the framers of the act that
the tendency of this provision would be to secure
for the first official period and for the first Presi-
dential election Republican control of such states
as North Carolina and Georgia, where the very
fact of a liberal suffrage clause created a presump-
tion that the Democrats would normally rule.

Texas and Virginia failed to reach the conclusion
of the process of reconstruction during the second
session of the Fortieth Congress. In Virginia the
convention completed the draft of a constitution
early in April ; but the Congressional appropria-
tion had been exhausted and the commander pos-
sessed no funds with which to meet the expenses
of the election on ratification. The convention set
the third of June as the day for the election, but
Congress only made the appropriation after that
date had passed. Matters were thus at a stand-
still, as the only authority empowered by law to
fix another date was the convention, which had
gone out of existence. The commander referred
the situation to Congress, but no action was taken.^
In Texas the session of the convention was long
and stormy. By the middle of August the $ 1 00,000
that had been advanced from the state treasury
was spent, but the constitution was not completed.
Any additional advance was refused by the district

1 Report of Secretary of War, 1S68, p. 320,

208 THE PROCESS OF RECONSTRUCTION

commander, on the ground that the *' state of the
treasury, the rate at which money is coming in,
and the prospective current wants of the state"
would not warrant it.^ The convention accord-
ingly took a recess, to await developments in con-
nection with the special tax which it had levied.

As the net result of the first year's full opera-
tion of the Reconstruction Acts but six states out
the ten were qualified for restoration to normal
relations to the national government. In view of
the manifestations of public opinion in the North
against both military government and negro suf-
frage, the Republican leaders were anxious to have
the whole matter off their hands before the Presi-
dential election. By resort to methods of ques-
tionable regularity they were able to increase the
number of restored states to seven, and on this
record to go before the people. The triumph in
the elections relieved the pressure for prompt
action, and it was only after two additional years
of military rule that the reconstruction of the re-
maining three states was complete.

Ill

Upon the ratification of constitutions in the
rebel states the next step contemplated by the
Reconstruction Acts was the approval of these
constitutions by Congress and the formal declara-

1 Ann. Cyc, 1868, p. 730.

THE PROCESS OF RECONSTRUCTION

209

tion by that body that the states concerned were
entitled to representation. Section five of the act
of March 23, 1867, was so worded as elaborately
to safeguard the full discretion of Congress at this
decisive point. After declaring the duty of the
President to transmit the ratified constitution to
Congress, it continued :

And if it shall, moreover, appear to Congress that the elec-
tion was one at which all the registered and qualified electors
in the state had an opportunity to vote freely and without
restraint, fear or the influence of fraud, and if the Congress
shall be satisfied that such constitution meets the approval of
a majority of all the qualified electors in the state, and if the
said constitution shall be declared by Congress to be in con-
formity with the provisions of the act to which this is supple-
mentary, and the other provisions of said act shall have been
complied with, and the said constitution shall be approved by
Congress, the state shall be declared entitled to representa-
tion, and senators and representatives shall be admitted there-
from as therein provided.

It is clear that to the framer of this section the
danger to be particularly guarded against was that
of overhasty admission. No mere perfunctory
compliance with the Reconstruction Acts, but a sub-
stantial conformity to the policy they expressed, was
to be exacted before the states were to be restored
to full rights. In the spring of 1868, however, it
was not haste but delay in restoration that was
feared by the Republican leaders. The result of
the vote on ratification in Alabama was a severe
blow to their projects. It likewise gave much

210 THE PROCESS OF RECONSTRUCTION

distress to the successful candidates for state offices
who, through the failure of ratification, were debarred
from assuming authority. Complaints and peti-
tions from the local leaders and consultations with
the extremists in the House of Representatives
led to the introduction of a bill by Mr. Stevens,
March lo, 1868, providing for the admission of
Alabama to full rights as a state.^ The bill
merely declared that the constitution was satisfac-
tory and had been voted for by a large majority
of the legal voters voting at the election. No
reference was made to the requirement of the Re-
construction Acts that a majority of the registered
voters should participate in the election. No
importance was assigned, in fact, to any of the
elaborate conditions embodied in preceding legis-
lation save one — that ** Congress shall be satisfied
that such constitution meets the approval of a ma-
jority of all the qualified electors in the state."
Such approval v/as not demonstrated by the returns
of the election ; for the majority of the electors
had expressed no opinion at all. But the supporters
of the bill contended that the failure of a majority
to vote was satisfactorily accounted for by the
intimidation of negroes by white employers, by
frauds in registration and irregularities in the elec-
tion, and particularly by the fact that a heavy
storm on some of the days during which the elec-
tion continued prevented many who wished to vote

1 Cong. Globe, 2d sess., 40th Cong., p. 1790.

THE PROCESS OF RECONSTRUCTION 211

from going to the polls.^ These allegations of in-
timidation and fraud, if not regarded as adequately
met by counter-allegations by the Democrats, ob-
viously cast much discredit on the efficiency of the
military authorities ; ^ and the argument from the
weather could hardly be taken seriously. It proved
impossible, therefore, at this time to get a majority
of the Republicans in the House to throw over-
board their earlier legislation, and the bill failed.^

Meanwhile the constitution of Arkansas had
been voted upon, with the result stated above.*
The irregularities connected with the voting there
were sufficient to prevent General Gillem from
making any announcement as to whether the rati-
fication was or was not accomplished. His report
merely presented the facts and showed that the
number of votes tainted with irregularity was cou"-
siderably greater than the majority for ratification.
Under the existing pressure for speedy restoration
it was not to be expected that Congress would
attach much importance to the doubts raised, es-

1 Globe, 2d sess., 40th Cong., p. 181 8 ^/ seq.

2 General Meade insisted, after " the most thorough investiga-
tion," that the constitution was fairly rejected under the law requir-
ing a majority of the electors to vote. Report of Secretary of War,
1868, p. 76.

3 It was transformed by the adoption of a substitute installing
the Republican state ticket voted for at the election, as a provisional
government for Alabama pending revision and resubmission of the
constitution. Globe, 2d sess., 40th Cong., p. 2216.

* Supra, p. 205.

212 THE PROCESS OF RECONSTRUCTION

pecially as, through the refusal of the Democrats
to recognize the ordinance proclaiming elections for
state officers, the Republican candidates had been
returned as elected with but little opposition. A
bill to restore Arkansas was passed by the House
of Representatives on the eighth of May. The
Senate proceeded with some deliberation, owing
to suspicions that certain manifestations of haste
were prompted by a desire for two additional
votes on the pending impeachment trial.^ After
the conclusion of the trial progress was easy and
the bill became law, over the President's veto,
June 22. The provisions of the act included, first,
a preamble declaring that the people of the state
had adopted a constitution " which is republican,"
and that the legislature had ratified the proposed
Fourteenth Amendment ; second, a declaration that
Arkansas *' is entitled and admitted to representa-
tion as one of the states of the Union" ; and third,
a qualification of the foregoing declaration by this
** fundamental condition " :

That the constitution of Arkansas shall never be so amended
or changed as to deprive any citizen or class of citizens of the
United States of the right to vote who are entitled to vote by
the constitution herein recognized, except as a punishment
for such crimes as are now felonies at common law, under
laws equally applicable to all the inhabitants of said state ;
provided, that any alteration of said constitution prospective
in its eifect may be made in regard to the time and place of
residence of voters.

1 Cong. Globe, 2d sess., 40th Cong., p. 2437.

THE PROCESS OF RECONSTRUCTION 213

By virtue of this act Arkansas became at once
a member of the Union in full standing. Her
senators and representatives qualified on the fol-
lowing day,^ and reconstruction was complete in
one of the ten states. That the friends of negro
suffrage felt little confidence in the permanency of
their work, needs no stronger evidence than the
drastic and unprecedented condition under which
the first of the errant states was restored to the
Union.

Only three days after the passage of the Ar-
kansas bill Congress acted finally upon the other
six states which had voted upon their constitu-
tions. The bill for this purpose was reported
from the House committee on reconstruction early
in May. It was quite characteristic of that com-
mittee and its leader, Mr. Stevens, that with the
other states to which the bill referred should be
included Alabama, whose restoration the House
had refused to sanction only six weeks earlier.
Nothing whatever had occurred in the state itself
to modify the reasoning on which the former ac-
tion had been taken ; but the parliamentary device
of winning reluctant support for an obnoxious
proposition by coupling it with a popular one was
too well-tried and efficient to be omitted on an
occasion like that at hand. The desired end was
attained. After much debate, in which the cir-
cumstances of the elections in Alabama were

1 McPherson, Reconstruction, pp. 347, 348.

214 THE PROCESS OF RECONSTRUCTION

threshed over again and again, the argument pre-
vailed that that state should come in at the same
time with the rest, and that the allegation of
breach of faith ought not to carry much weight
when only rebels and traitors were aggrieved. In
both House and Senate the motion to strike out
Alabama from the bill was lost. Florida, also,
where the vote on ratification was later, was ulti-
mately included in the bill, and it became law on
June 25. The declaration of restoration and the
fundamental condition were identical with the
terms of the Arkansas bill. In the preamble,
however, a difference was necessary : it could
not be declared that the legislatures had ratified
the Fourteenth Amendment; and the inclusion
of Alabama made impossible the simple affir-
mation that republican constitutions had been
adopted.^ Moreover, instead of going into effect
at once, the restoration was only to ensue upon
the ratification of the Fourteenth Amendment by
the legislatures ; and in the case of Georgia
upon the approval by its legislature of an addi-
tional fundamental condition, namely, that specified

^ They were declared to have been adopted " by large majorities
of the votes cast at the elections held for the ratification or rejection
of the same." This wording reflects the rather ridiculous tendency of
the extremists to ignore the notorious in the Alabama case, and to
declaim about the huge majority in that state for the constitution,
as if the size of the majority really expressed the triumph of those
who voted rather than that of those who abstained.

THE PROCESS OF RECONSTRUCTION 21$

clauses of her new constitution, abolishing certain
debts, should be null and void. The bill provided
further that meetings of the legislatures should be
promptly held to act upon the amendment.

By this legislation Congress was presumed to
have completed its part in the reconstruction of
six states, namely, North Carolina, South Carolina,
Georgia, Florida, Alabama and Louisiana. It will
be observed that the action of the national legis-
lature did not correspond exactly with the require-
ments of the first Reconstruction Act. In this
it was declared that admission to representation
should only take place after the Fourteenth
Amendment " shall have become a part of the
constitution of the United States." ^ This require-
ment was dropped in the act of March 23, 1867,
for the reason that the lawyers were unwilling or
unable to agree as to whether the ratifications of
the reconstructed states were necessary to the
validity of that amendment. All agreed that
those states should be obliged to ratify it, as a
visible pledge and token of their reconstruction ;
but many held that the amendment became opera-
tive when approved by three-fourths of the states
exclusive of those under military government.
This vexatious point became of much importance
at the conclusion of the process of reconstruc-
tion, through the bearing of that clause of the
amendment which disqualified certain persons for

1 Act of March 2, 1867, sec. f.

2l6 THE PROCESS OF RECONSTRUCTION

state oflfice. The act restoring the six states con-
tained a clause distinctly providing that no one
disqualified by the proposed amendment should
hold office under the states concerned. The feel-
ing which dictated this provision is made clear in
the incidents connected with the transition from
the military to the representative regime in the
various states.

IV

When once the elections had been held and a
body of Republican claimants for the state offices
had thereby been created, a readjustment of rela-
tions took place among the various elements of
authority in each state. In their impatience to
assume power the Republicans tended to regard
the military as hostile to them, and to be some-
what captious in their judgments upon the con-
duct of the commanders. On the other hand the
Democrats, who still had some shadow of official
power through the lingering remnants of the
Johnson governments, were disposed to regard
the prolongation of the military regime with much
complacency. The commanders, for their part,
might well have conceived that the spirit of the
Reconstruction Acts justified the concession of
authority to the chosen representatives of the new
electors, but the letter of the law was explicit, that
military power should be supreme until an act of
Congress should declare the state entitled to rep-

THE PROCESS OF RECONSTRUCTION 21/

resentation. In Alabama and Arkansas, where
there was a long interval between the elections
and action by Congress, the situation was particu-
larly trying. The Republican members-elect of
the respective legislatures assembled^ and went
through the form of organization. As their only
claim to official character rested upon the new
constitutions, which the commanders refused to
consider as ratified, it was of course impossible
for the commanders to recognize these assemblies.
Under such circumstances it was not to be ex-
pected that the pretenders would receive much
respect from the mass of the white citizens. In
fact the existence of these pseudo-governments
introduced a new element into the already serious
problem of maintaining peace and order in the
states. Ultimately the action of Congress vali-
dated the action of the Arkansas legislature in
ratifying the Fourteenth Amendment ; ^ but as to
Alabama, all the proceedings of its legislature-elect
antecedent to the act of June 25 were ignored.

The difficulties due to the cause just considered
were of less importance in the other states, though
they made themselves felt. In Louisiana, for in-
stance, the eagerness of the new officials to begin

1 In Alabama, they met in a newspaper office; in Arkansas, they
broke into the legislative halls of the state capital. Ann. Cyc, 1868,
pp. 16, 38.

•- The preamble of the admitting act assumed that the amend-
ment had been ratified.

2l8 THE PROCESS OF RECONSTRUCTION

their duties had to be sharply repressed by Gen-
eral Buchanan. But very troublesome to all the
commanders were the questions that arose as to
the qualifications and the method of installation of
officers who were to assume power under the
new constitutions. The situation was a very puz-
zling one. As prerequisite to restoration the
legislature of each state must ratify the Four-
teenth Amendment. The organization of the
legislature must accord with the new constitution,
which in some states required the participation of
governor and lieutenant-governor ; hence these
officials must qualify. But the new constitution
could not be considered as in force until after the
action on the Fourteenth Amendment. Until such
action was complete, the Reconstruction Acts re-
tained their full authority, and the military com-
mander was paramount ruler.

The difficulty here indicated was overcome
through that provision of the act of March 2, 1867,
which declared that until the admission of represen-
tatives to Congress, any civil government existing
in the rebel states should " be deemed provisional
only." On the basis of this clause the policy was
devised of regarding the legislature-elect and the
executive officials necessary to its action as pro-
visional in character, and as the creatures, so to
speak, of the military commanders. By the orders
of the generals the persons hitherto acting as gov-
ernors in the two Carolinas and in Louisiana were

THE PROCESS OF RECONSTRUCTION 219

removed, and the governors-elect were appointed in
their places. The acts necessary to the transition
from the military to the civil regime were thus
performed by the holders of authority under both,
and conflict was avoided.

But the more fundamental problem as to quali-
fications for office at once assumed formidable
dimensions. Three conflicting factors entered into
the situation — the state constitutions, the proposed
Fourteenth Amendment and the Reconstruction
Acts. The state constitutions required of legisla-
tors and officers various qualifications and oaths,
some more rigorous than what was required by the
Fourteenth Amendment. This latter disqualified
for office in the states those who, after taking oath
to support the constitution, had gone into rebellion.
Normally, then, the new state officers and legisla-
tors would conform to the qualifications prescribed
by the state constitutions, provided these excluded
such persons as were excluded by the Fourteenth
Amendment. But as we have seen, the officers
and legislators installed before the full restora-
tion had to be regarded as "provisional"; and
section nine of the act of July 19, 1867, required
that '* all persons hereafter elected or appointed to
office in said military districts" should take the
iron-clad oath.^ Relatively few of the officers-
elect could honestly take this oath,^ and it early

^ Ante, p. 184, note.

2 In practice it seems to have been assumed that every negro

220 THE PROCESS OF RECONSTRUCTION

became a serious question as to whether it or the
oath prescribed by the state constitutions was
to be exacted from those who took part in the
proceedings 'preliminary to full restoration. The
military commanders, after referring the matter
to headquarters, proceeded on the more moderate
theory that the officials elected under the new
constitutions were not officials of " provisional gov-
ernments " in the meaning of the Reconstruction
Acts,^ and therefore need not take the " iron-clad
oath," This was probably an equitable interpre-
tation of the law, but it was quite inconsistent
with the theory on which was based the action of
the legislature in transacting business before the
restoration of the state.- The interpretation was
rejected by the Republican officials in Louisiana,
who, in spite of the orders of the commander, at-
tempted to exclude the Democratic members of
the legislature by requiring the test oath. A seri-
ous disturbance became imminent before the re-
calcitrant majority finally gave way.^

Another difficult question, related to the fore-
going, was as to the authority of the commanders
to pass upon the qualifications of the individual

could take this oath, though such an assumption was irreconcilable
with notorious facts as to the conduct and sympathies of the blacks
during hostilities.

1 Cf. House Ex. Doc, No. 276, 2d sess., 40th Cong.

* General Meade distinguished between officers and legislators, and
thought the latter might be required to take the test oath. Ibid.

^ Ann. Cyc, 1868, p. 434.

THE PROCESS OF RECONSTRUCTION 221

members of a legislature when that body assem-
bled. It was generally conceded that by force of
either the Fourteenth Amendment or the provi-
sions of the admission act of June 25, 1868, no
person disqualified by the amendment was eligible
to the state legislature. But much depended upon
the ground chosen as the basis of ineligibility. If
disqualification was based upon the amendment,
the capacity of members must be determined by
the normal methods of constitutional and parlia-
mentary procedure ; if upon the act of Congress,
the military commander must determine the mat-
ter and, in pursuance of his duty to enforce the
law, must, upon the assembling of the legislature,
" purge " that body of disqualified persons. In
several of the states, where the creation or increase
of a Republican majority was deemed important,
the newly elected state officers were eager for the
use of the latter method. But grave doubts as to
the policy of such a proceeding appeared on the
surface. To set up a major-general as final judge
of membership in a representative assembly whose
electorate had been so carefully constructed and so
elaborately protected in its action, would reflect seri-
ously on the fundamental principles of reconstruc-
tion. The commanders themselves had no stomach
for so invidious a duty. Accordingly, with the ap-
proval of leading members of the majority in Con-
gress,! they confined themselves to pointing out the

1 Cf. Report of Secretary of War, 1868, vol. i, p. 78.

222 THE PROCESS OF RECONSTRUCTION

test of eligibility to the legislatures and calling upon
the respective houses to apply this test in exercis-
ing their constitutional control over the elections,
qualifications and returns of their members. This
solution, again, was hardly to be reconciled with
any clear-cut theory of reconstruction. It was the
outcome of expediency rather than logic. In the
case of one state, Georgia, logic asserted itself later
in a somewhat startling manner.

For the six states affected by the act of June 25,
the month of July, 1868, brought the formal con-
clusion of the process of reconstruction. Legisla-
tures met and ratified the Fourteenth Amendment ;
recently chosen governors and other officers were
installed with the usual ceremonies ; and on receipt
of official notice that the amendment had been
ratified in each state, the respective district com-
manders issued orders declaring that military gov-
ernment under the Reconstruction Acts had ceased.
Legislative and administrative routine was at once
assumed by the regular organs of the states, and the
cases pending in the military tribunals were turned
over to the ordinary courts. At the same time the
two houses of Congress fulfilled their duty by admit-
ting to seats the representatives and senators from
the reconstructed states. Before the close of the
session all the six states had members at work in
the House, and all but Georgia in the Senate.

The state last named had, as we have seen,
required exceptional treatment in the restoring

THE PROCESS OF RECONSTRUCTION 223

act of June 25. Circumstances conspired to con-
tinue the special character of her reconstruction.
Of all the states she alone had returned a Conserv-
ative or Democratic majority^ in her legislature;
but the governor-elect, Bullock, was a Republican.
In the prevailing condition of political feeling,
friction between executive and legislative depart-
ments was inevitable. It made its appearance
during the transition from military to regular gov-
ernment. The governor-elect had and expressed
very strong convictions on the questions noticed
above as to the qualifications of members of the
legislature that performed the acts preliminary to
restoration. He believed that the iron-clad oath
was the legal test of eligibility, and he strongly
urged General Meade to exclude at least certain
members whom the governor considered ineligible
under the Fourteenth Amendment. ^ As committees
of the houses reported that all the members were
eligible, and as Bullock's aspirations for a United
States senatorship seemed to influence his opin-
ions,2 the general declined to act on the governor's
suggestion. In consequence of this initial incident
relations between the governor and the majority
in the legislature were greatly strained after mili-

1 The Senate was evenly divided between the parties, 22 mem-
bers each; the lower house stood Democrats 102, Republicans 73.
Ann. Cyc, 1868, p. 312.

2 The correspondence is given in Sen, Ex. Doc, No. 13, 2d sess.
41st Cong., p. 69 et seq.

3 Meade to Grant. Doc. last cited, p. 50.

224 ^^^ PROCESS OF RECONSTRUCTION

tary rule was withdrawn. United States senators
were elected July 29, after Congress had ceased
work for the summer, but Bullock was not chosen.
Later in the session the legislature recurred to
the question of eligibility of members, but from a
new point of view. Taking advantage of a loop-
hole left by the framers of the constitution, the
majority decided that negroes were ineligible to
any office in the state, and forthwith unseated all
the blacks in both houses, twenty-seven in number.
This proceeding was doubtless gratifying to the
hot partisan spirit of the day, but it was not judi-
cious. It gave to the governor a weapon that he
was prompt to use. The Democratic leaders in
the state had doubtless supposed that their immu-
nity from further action by Congress was complete.
But when the credentials of the Georgia senators
were presented, at the meeting of Congress in
December, objection was promptly made to their
acceptance.^ Radical senators declared that the
act of the legislature in expelling the negro mem-
bers was good ground for refusing to recognize
the state as restored to normal relations. Gov-
ernor Bullock submitted a paper reciting his views
as to the qualifications of members of the legis-
lature and assuming that his own tenure, as well
as that of every other member of the state gov-
ernment, was still only provisional. Though mod-
erate senators protested against delay, the desired

1 Cong. Globe, 3d sess., 40th Cong., p. 2 et seq.

THE PROCESS OF RECONSTRUCTION 225

impression was made by the radicals and the
formal act that would have made incontestable
the full restoration of the state was prevented.
The senators-elect were not permitted to take their
seats, and thus a slight, but as circumstances
proved a sufficient, foundation was secured for the
theory that Georgia was still in the class of states
in which the process of reconstruction was in-
complete.

The point now reached marks an epoch in the
process of reconstruction. A variety of events
combined to change the conditions under which
the process was to be completed in the four states
that were still unrestored. In the first place, the
Fourteenth Amendment had become formally a
part of the constitution. On July 20, 1868, Secre-
tary Seward, after receiving notice of ratification
by the reconstructed legislatures,^ issued his procla-
mation announcing that the amendment was in
force. The secretary's document was a unique
production, ingeniously devised to avoid recog-
nition of the reconstructed legislatures as lawful,^
and expressly reserving judgment as to the validity

1 Except that of Georgia, which ratified later.

2 It was declared that the article had been ratified by the legis-
latures of twenty-three specified states, and in six states by " newly
constituted and newly established bodies avowing themselves to be,
and acting as, the legislatures."

Q

226 THE PROCESS OF RECONSTRUCTION

of rescinding acts passed after ratification in New
Jersey and Ohio ; but Congress immediately by
concurrent resolution made short work of Mr.
Seward's scruples and declared the new article part
of the constitution.^ In the second place, the
issue of reconstruction had again been fought out
in a general election, and the Republicans had de-
cisively won. By the voting of November, 1868,
the future control of the executive as well as the
legislative department at Washington was assured
to the friends of Congress' policy, and it was a
source of much satisfaction that of Grant's 214
electoral votes, forty-one came from states lately
in rebellion.^ Harmonious relations and an iden-
tical policy on the part of President and Congress
must necessarily modify the conduct of recon-
struction after March 4, 1869; but probably quite
as great a modifying influence was exerted by the
fact that two of the reconstructed states, Louisi-
ana and Georgia, chose Democratic electors in
November.

A third element of novelty in the general situa-
tion was a change of attitude by the Republican
Party as to negro suffrage. Certain manifestations
of Northern sentiment on this topic had given
much concern to the Republican leaders in the
Presidential campaign. Four important states,

1 Mcpherson, History of the Reconstruction, p. 380.

2 Virginia, Mississippi and Texas of course did not take part in
the election.

THE PROCESS OF RECONSTRUCTION 22^

Ohio, Michigan, Minnesota and Kansas, had re-
fused to extend the right of voting to the blacks,
while manifesting entire sympathy with the Con-
gressional policy of reconstruction. It was the
condition of feeling thus indicated that found ex-
pression in the national platform :

The guarantee by Congress of equal suffrage to all loyal
men at the South was demanded by every consideration of
public safety, of gratitude and of justice, and must be main-
tained ; while the question of suffrage in all the loyal states
properly belongs to the people of these states.^

But the flush of victory actually achieved quickly
banished from further consideration the policy
foreshadowed by this declaration. That the per-
manency of what reconstruction had effected in
the South was insecure, was made very obvious
by the fact of Democratic victory in Georgia and
Louisiana. The " fundamental conditions " which
afforded the only basis for Congressional mainte-
nance of negro suffrage in the restored states were
regarded by a large majority of constitutional law-
yers in both parties as of doubtful validity. Under
the circumstances a further amendment to the
constitution was the only resort that could be
depended upon for the end desired. Hence the
Fifteenth Amendment was, after a long and ar-
dent discussion of the whole field of political phi-

1 Ann. Cyc, 1868, p. 744.

1

228 THE PROCESS OF RECONSTRUCTION

losophy, sent to the state legislatures by resolution
finally passed February 26, 1869. The pendency
of this amendment had, as will soon appear, a
most Important influence on the conclusion of
reconstruction in the last four states.

Finally, the actual working of the reconstructed
governments during the first few months of their
existence had suggested, if it had not clearly
revealed, the inability of those governments to
stand alone. The withdrawal of military govern-
ment had been followed in most of the states
by disturbances which, whatever their source and
magnitude, — and both were the subject of vehe-
ment partisan dispute, — led to anxious appeals by
the state authorities for military aid from the
United States.^ It was in connection with the
elections that the disorders assumed the most
serious character. The Ku Klux Klan, conspic-
uous for some time in Tennessee, had begun to
manifest its terrorizing features in various other
states. Louisiana was believed to have been car-
ried by the Democrats in the Presidential election
wholly through fraud and violence.^ All these
facts conspired to intensify the zeal of the Repub-
licans for stringent methods in completing recon-
struction. The obvious danger to party supremacy
where a priori such supremacy was to be expected
revived the flagging interest in the process. In-

1 Report of Secretary of War, 1868, p. xviii et seq.

2 Blaine, Twenty Years of Congress, II, 409.

THE PROCESS OF RECONSTRUCTION

229

Stead of the mere eagerness to get rid of the whole
subject, which had been apparent in 1868, there
became conspicuous in the following year a reso-
lute purpose to make every possible point for
effective and permanent Republican control in the
remaining states.

The final session of the Fortieth Congress, in
the winter of 1868-69, produced no legislation
designed to hasten the admission of the states
still unrestored. On the other hand the long-
standing demand of the Radicals for control of the
state offices was gratified by an act requiring the
commanders in Virginia, Mississippi and Texas to
remove all incumbents who could not take the
iron-clad oath and to replace them by persons who
could take it.^ Moreover, the process of remov-
ing the disabilities imposed by the Fourteenth
Amendment began to appear prominently in the
work of Congress, and the methods by which the
grant of relief was carried on^ left no doubt as
to the tendency of the process to aid the Radi-
cals in both reconstructed and unreconstructed
states.

Meanwhile the problem as to the next steps to
be taken in the three states mentioned above had
been the subject of intense controversy both within

1 Became law without the President's approval, Feb, 6, 1869.
Cong. Globe, 3d sess., 40th Cong., Appendix, p. 327.

2 Cf. Globe, 3d sess., 40th Cong., p. 1712 et stq., esp. remarks
of Tipton and Howard; also remarks of Beck, p. 1888.

230 THE PROCESS OF RECONSTRUCTION

the states themselves and in the room of the com-
mittee on reconstruction at the Capitol. In Missis-
sippi and in Virginia the stringent disfranchising
and test-oath clauses of the constitutions had
caused a distinct split of the Republican state
organizations. The radical wing in Mississippi
demanded the admission of the state under the
constitution as it stood, on the ground that its
rejection in the previous election had been effected
by fraud and violence. The conservative wing,
on the other hand, were ready for resubmission
of the constitution to the people, with a separate
vote on the obnoxious disfranchising clauses, to
which the previous failure of ratification seemed
to be chiefly due. In Virginia the Republicans
divided on similar lines ; and in both states the
Democrats abandoned a distinct policy and coa-
lesced with the conservative Republicans in the
movement for separate submission of the disa-
bling clauses. The Texas convention reassembled
and completed a constitution during the winter of
1868-69; but here also the Republicans were split
into factions, and political conditions, like social
conditions, in the state were chaotic.^ Under all
the circumstances the task of the military com-
manders in maintaining some semblance of govern-
mental authority became increasingly burdensome,
and their difficulties were enhanced by the require-

1 Cf. Ann. Cyc, 1869, p. 671 et seq. Also Report of Secretary
of War, 1868, p. 704.

THE PROCESS OF RECONSTRUCTION 23 1

ment of a " clean sweep " in the offices, which was
imposed by the action of Congress in February. ^

It was not until after the inauguration of the
new administration that definitive action was taken
to put an end to the existing situation. By act of
April 10, 1869, Congress authorized the submission
of the constitutions in the three states to popular
vote. The change wrought by the installation of
President Grant was manifested in the fact that
the administration of the law was entrusted, not
to the district commanders, as in previous acts,
but to the President; and even more in the pro-
vision by which Congress evaded entirely the
troublesome question as to a separate vote on
test oath and disfranchisement, by leaving the
matter to the President's discretion.^ The pas-
sage of the act had indeed been due to a recom-
mendation of the President in a special message
of April 7,^ in which he had indicated both his
desire to promote the admission of Virginia and
Mississippi, and his conviction that a separate vote
on the obnoxious clauses should be permitted. By
far the most striking innovation embodied in the
act, however, was the requirement that, as a con-
dition precedent to restoration, each state should

1 In Virginia, 5176 offices were vacated under this law, of which
2814 were still vacant on October i. Report of Secretary of War,
1869, p. Ill; cf. for Texas, p. 145.

'^ The act is in McPherson, Reconstruction, p. 408.

3 Ibid., p. 417.

232 THE PROCESS OF RECONSTRUCTION

ratify the Fifteenth Amendment. The fairness
and justice of imposing a new condition at this
late stage in reconstruction — a condition that
seven of the states had escaped — were seriously
doubted by many Republicans and were strenu-
ously denied by the Democrats ; ^ but the contest
over the amendment in Northern legislatures was
looming fierce and doubtful,^ and the opportunity
to insure three states in the affirmative could not
be lost. It was quite probable that these states
would have ratified the amendment voluntarily,
and the chief significance of the Congressional
action lay in the triumph of a radical program.
The strength secured to radical sentiment by the
admission of the states already reconstructed is
illustrated by the fact that in the Senate eight of
the members from those states voted for the new
condition and but one against it.

Under the authority of the act just considered
elections were held in Virginia July 6, and in Mis-
sissippi and Texas November 30. In the first two
states the President exercised the discretion con-
ferred upon him by submitting to separate votes
the disabling clauses. The results justified the

1 Cf. debate in Senate, Globe, ist sess., 41st Cong., p. 654 et seq.

2 In Indiana the Democratic members of the legislature, to pre-
vent action by the Republican majority, resigned in a body and de-
stroyed the quorum. Ann. Cyc, 1869, p. 356 et seq. The use of such
methods against the amendment was held to justify extraordinary
procedure in its favor. Cf. Morton in Globe, ist sess., 41st Cong.,
p. 654.

THE PROCESS OF RECONSTRUCTION 233

pledges made by the Conservatives; for in both
states, while the rest of the constitutions were
ratified almost without opposition, the obnoxious
clauses were defeated by decisive majorities. The
Texas convention had embodied no disfranchise-
ment in the constitution, and the instrument as a
whole was ratified. Elections were held in all
three states for state officers and congressmen,
and in all three the contest was between Radicals
and Conservatives, the Democrats abandoning any
distinctive organization. The result was victory
for the Conservatives in Virginia and for the
Radicals in the other two states. On the ques-
tion of eligibility to the legislature in Virginia,
General Canby, then commanding in the state,
excited some commotion by arguing away the
precedents established in the states earlier ad-
mitted^ and ruling that the iron-clad oath must
be taken by members before taking their seats.^
President Grant, however, clung to the opinion
which he had formed as General of the Army,
that only the oath required by the state constitu-
tion was necessary, and this view was fortified
by Attorney-General Hoar in a formal opinion.
Though the act of July 19, 1867, forbade district
commanders to be bound in their action by " any
opinion of any civil officer of the United States,"

1 Ante, p. 220.

2 All the documents connected with this incident are in Sen. Ex.
Doc, No. 13, 2d sess., 41st Cong.

234 ^-^^ PROCESS OF RECONSTRUCTION-

the " spirit of the Reconstruction Acts " very
clearly justified the interpretation of this clause
as meaning President Johnson's attorney-general
and not President Grant's. Accordingly the iron-
clad oath was not required of the members of the
legislature. The commanding general did, how-
ever, look very carefully after the qualification of
members of the legislature under the Fourteenth
Amendment, and excluded from their seats several
persons whom he regarded as ineligible.

When Congress reassembled in December, 1869,
it was informed by the President, in his annual
message, that Virginia had conformed to all the
requirements of the Reconstruction Acts and that
her legislature had ''abstained from all doubtful
authority " ; the prompt admission of her senators
and representatives was therefore recommended.
The President had committed himself definitely
from the beginning of his term to the support of
the Conservatives in Virginia, and their triumph
in the election had pleased him. In Congress,
however, a strong element of the Republicans
sympathized with the Radicals, and regarded the
result of the election as expressing the failure of
the whole reconstruction. A vigorous opposition
was made, therefore, to immediate action on Vir-
ginia. It was urged that the abuses of power
which were alleged against the Conservatives in
Georgia would be repeated by the Virginia Con-
servatives. The pressure of the administration,

THE PROCESS OF RECONSTRUCTION

235

however, meant much at this time : where John-
son's urging admission would have insured the
exclusion of the state, Grant's had a different
result. The bill for the restoration of Virginia
became law on the 26th of January, 1870. It
bore the impress of the opposition, however, in
the form of conditions, both precedent and subse-
quent, that considerably exceeded in severity those
imposed upon the states earlier restored. It was
first required that every member of the legislature
should, as a condition of taking his seat, subscribe
to an oath to the effect either that he was not dis-
qualified by the Fourteenth Amendment, or that
his disability had been removed by Congress.
Then, as fundamental conditions upon the state's
admission, it was prescribed first, as in case of the
former states, that the constitution should never
be so amended as to deprive of the suffrage any
persons on whom it was bestowed therein ; second,
that the state should never "deprive any citizen
of the United States, on account of his race, color
or previous condition of servitude, of the right to
hold office," or "upon any such ground" impose
discriminating qualifications for office ; and third,
that the constitution should never be so amended
as to "deprive any citizen or class of citizens of
the United States of the school rights and privi-
leges secured by the constitution of said state."
The second of these provisions very obviously bore
upon such proceedings as those of the Georgia

236 THE PROCESS OF RECONSTRUCTION

legislature in ousting its negro members ; the last
condition was suggested by an issue that had
played a large part in the Virginia campaign, and
in connection with which the triumph of the Con-
servatives was alleged to forebode the denial of
free education to the blacks. Both these new con-
ditions were antagonized by many Republicans as
unconstitutional and as involving breach of the
faith pledged in the act laying down the terms of
restoration. But the arguments once more pre-
vailed that the guarantee of a republican form of
government involved Congressional control of both
qualifications for office and general education ; and
that the breaking of faith, even if it were fairly
chargeable, need not signify much with a people
who had put rebels in power.

On the day after the approval by the President
of the act just described, orders were issued by
General Canby terminating military government
in Virginia and the reconstruction of the state was
formally complete. Mississippi and Texas mean-
while had conformed to the transitional require-
ments, following closely the lines laid down in
Virginia, and Congress enacted their restoration in
terms identical with those of the Virginia act.
Some effort was made to relax the severity of the
fundamental conditions, on the ground that the
victory of the Radicals in the two states removed
all fear of improper proceedings, and that no issue
existed as to school privileges. The extremists in

THE PROCESS OF RECONSTRUCTION 237

Congress persisted, however, in retaining the Vir-
ginia form, and in some cases made no conceal-
ment of a conscious and deliberate purpose to fix
thus an interpretation upon the national constitu-
tion that should vastly enlarge the powers of Con-
gress.^ The Mississippi bill became law on the
23d of February, and the Texas bill on the 30th of
March. Military rule was at once withdrawn and
the states assumed their normal condition.

VI

At the beginning of April, 1870, of the ten
commonwealths whose reconstruction had been
undertaken by Congress Georgia alone was un-
restored to the full enjoyment of state autonomy.
The situation of the state in December, 1868, has
already been described.^ She had been by act of
June 25 declared entitled to representation in
Congress upon the performance of certain acts by
her legislature ; these acts had been performed,
military government had been withdrawn from the
state, and her representatives had been admitted
to the lower house in Congress. On this condi-
tion of the facts the legal status of Georgia as a
state of the Union appeared pretty well established.

1 Cf. debates on Virginia and Mississippi bills, passim, in Globe,
2d sess., 41st Cong., esp. remarks of Morton, Howard, Drake and
Sumner in the Senate.

'^ Ante, p. 224 et seq.

238 THE PROCESS OF RECONSTRUCTION

The Senate, however, had refused to admit her
members to their seats. During the winter the
question of her status required an answer in con-
nection with the count of the electoral votes for
President and Vice-President. Georgia had chosen
Democratic electors, but the result of the election
was not sufficiently close to be affected by their
nine votes. Republican opinion in Congress as
to the treatment of Georgia was as yet too inde-
terminate to warrant a solution of the whole prob-
lem at this time.^ Accordingly the issue was
avoided by the device of the " alternative count,"
the president of the Senate declaring the number
of votes both including and excluding Georgia,
and announcing the election of Grant and Colfax in
either case.^ But there was abundant evidence
presented in the course of this session that the
ultimate settlement of the state's condition would
be on radical lines.

After the installation of the new administration
the influences which have been described as affect-
ing reconstruction worked with especial force in
respect to Georgia. In the organization of the
new House of Representatives a technical irregu-
larity that was discovered in the credentials of her

1 Remarks of Edmunds, Globe, 3d sess., 40th Cong., p. 976.

2 It illustrates the anomaly of the general situation that in the
House the names of the Georgia members appear in the votes
bearing on the status of the state. Most of these members were
Republicans, and voted against counting Georgia's electoral vote.

THE PROCESS OF RECONSTRUCTION 239

members afforded an opportunity for refusing to seat
them.i The participation of members from the state
in the determination of the state's right to have
members was thus obviated. Soon afterward the
radical plan for dealing with Georgia was revealed
in a bill introduced by General Butler, the worthy
successor of Thaddeus Stevens at the head of the
committee on reconstruction. In the preamble to
this bill the basis for Congressional action as to
the state was laid in three leading assertions : first,
that the legislature had violated the Fourteenth
Amendment by failing to exclude persons disquali-
fied thereunder; second, that the majority of the
legislature had violated the constitution of the
United States, the constitution of Georgia and the
fundamental principles of the Reconstruction Acts
by expelling the negro members ; and third, that the
local authorities of the state were unwilling or un-
able to protect loyal citizens from violence.^ The
bill then provided that the governor should re-con-
vene the members of the legislature as originally
elected, purge it of all who could not or would
not subscribe to a designated oath, based on the
Fourteenth Amendment, and retain the negroes ;
and that the military forces of the United States
should be subject to the governor's call for aid in
the administration of government and the protec-
tion of life and property.

1 Globe, 1st sess., 41st Cong., p. 16 ^/ seq.
^ Ibid., p. 591.

240 THE PROCESS OF RECONSTRUCTION

Republican sentiment, practically harmonious as
to the necessity of some punishment of the Geor-
gia Conservatives, was seriously divided as to the
basis for the desired action by Congress. The rec-
ord of acts, both legislative and executive, through
which the national government had acknowledged
to Georgia the full character and rights of a state
seemed to many complete and unassailable ; and
under such circumstances the assumption by Con-
gress of control over the organization of the legis-
lature or over the administration of justice was
wholly without constitutional warrant. On the
other hand stood the fact that the Senate had not
admitted the Georgians to their seats, and that,
therefore, by the merest shade the restoration of
the state might be regarded as not complete.
Until every least step in the process laid down in
the Reconstruction Acts had been taken, "any
civil governments which may exist therein [in the
several states] shall be deemed provisional only,
and in all respects subject to the paramount au-
thority of the United States." ^ Strictly consid-
ered, thus, the government of Georgia might still
be held provisional. But so fine-spun a theory
was not deemed necessary by all the Republicans.
It was argued by some that the state of Georgia,
whether the existing authorities were provisional
or permanent, had not a republican form of govern-
ment. This was evident not only in the exclusion

1 Act of March 2, 1867, sec. 6.

THE PROCESS OF RECONSTRUCTION

241

of a large part of the population from the freeman's
right to hold office, but also in the substantial de-
nial of protection of life and property to an equally-
large class. It was the constitutional duty of Con-
gress to see that a republican form of government
existed in every state, and in fulfillment of that
duty the assumption of control in Georgia was
justifiable. But even more conclusive, if possible,
was the right to enforce the Fourteenth Amend-
ment in Georgia. There could be no pretense, it
was held, that the disqualifications for office-hold-
ing imposed by that amendment were respected
by the legislature, or that the equal protection of
the laws was given to blacks as the amendment
required. It was the duty of Congress to enforce
the provisions of this amendment, and the purging
of the legislature and the maintenance of order
by the military power were necessary and proper
means for the performance of this duty.

The House of Representatives did not act finally
on General Butler's bill in the spring of 1869.
Before the next meeting of Congress the supreme
court of Georgia, on a test case brought before it,
decided that under the constitution and laws of
the state negroes had the right to hold office.^
There had been a general understanding that the
majority in the legislature would be guided by the
opinion of the court, though there was of course
no obligation upon them in this respect. In view

1 The opinions are given in McPherson, Reconstruction, p. 466.

R

242 THE PROCESS OF RECONSTRUCTION

of what was threatened when Congress should
meet, the Conservatives petitioned Governor Bul-
lock to summon a special session of the legislature,
and give it an opportunity to re-seat the colored
members. The governor, however, refused. Mean-
while the President had caused General Terry to
investigate thoroughly the stories of extensive out-
rages upon freedmen and white Republicans in the
state. The general in his report ^ represented the
conditions throughout the state to be most deplor-
able, chiefly through the activity of the Ku Klux
Klans, and gave his opinion that the interposition
of the national government was indispensable to
the protection of life and property. The report of
General Terry doubtless had considerable influ-
ence in neutralizing the effect produced by the
decision of the court in the matter of office-hold-
ing ; it strengthened the feeling that some action
by Congress was imperative to break the spirit of
the old rebel element in Georgia.

When Congress assembled in December, 1869,
President Grant, in his annual message, suggested
the prompt passage of an act requiring the reor-
ganization of the Georgia legislature. Congress
conformed to the suggestion, and an act " to pro-
mote the reconstruction of the state of Georgia "
became law on the 22d. There was still much
reluctance manifested by moderate Republicans
as to supporting the measure, but among the con-

1 Sen. Ex. Doc, No. 3, 2d sess., 41st Cong.

THE PROCESS OF RECONSTRUCTION 243

siderations of expediency which had been adduced,
that of securing the ratification of the Fifteenth
Amendment was now urged with especial insist-
ency. It was perfectly understood that the im-
mediate outcome of interference by Congress would
be the substitution of a Republican for a Demo-
cratic majority in the legislature. The legislature
had in March, 1869, rejected the Fifteenth Amend-
ment ; with a reversal of the majority the state
could be transferred to the list of those ratifying.
By December, 1869, twenty-two states had ratified ;
but of these there was doubt as to the validity of
the act in Indiana and Missouri, and New York
had since elected a Democratic legislature, which
was likely to rescind the state's ratification. From
this showing it could be argued that only nineteen
ratifications were already sure. Twenty-eight were
necessary. Of the additional nine Ohio's newly
elected Republican legislature would doubtless re-
verse the action of its Democratic predecessor and
ratify, and favorable action by Mississippi and Texas
was insured by the terms of the act providing for
their restoration. Beyond these but five states
remained whose legislatures were Republican, and
a sixth was obviously necessary.^ Accordingly a
clause was added to the bill dealing with Georgia
requiring ratification of the Fifteenth Amendment

1 As a matter of fact, Missouri healed the defect in her action
by a subsequent vote, and that in Indiana was disregarded. Cf.,
for the whole matter, McPherson, Reconstruction, pp. 488, 545, 557.

244 ^^^ PROCESS OF RECONSTRUCTION

before her representatives should be admitted to
Congress. With the addition of this provision
and the omission of the preamble, the act as passed
was substantially the same as the House bill de-
scribed above.

In accordance with the provisions of this law
the process of re-reconstruction of Georgia was
carried through in the first half of 1870.^ The
governor proceeded in January to reorganize the
legislature, but his methods excited such vigor-
ous opposition that the military power had to be
promptly called in. In view of the situation the
orders of July, 1868, withdrawing military gov-
ernment from Georgia were countermanded, and
General Terry was endowed with all the powers
of commander of a military district under the Re-
construction Acts. The general assumed charge
of the purging of the legislature. Disputed ques-
tions as to the eligibility of members-elect under
the Fourteenth Amendment and the acts of Con-
gress were decided by a committee of officers
appointed by the commander,^ and twenty-four
Democrats were excluded from their seats. Fol-
lowing the example of the majority that excluded
the negroes in 1868, the Republican majority now
filled the vacant seats with the candidates who had
been defeated in the elections, and by the end of

1 A good sketch of the process is in Ann. Cyc, 1870, sub voc.
" Georgia."

2 C/. House Ex. Doc, No. 82, 2d sess., 41st Cong.

THE PROCESS OF RECONSTRUCTIOM 245

January the legislature was pronounced good by
General Terry. It then ratified the Fourteenth
and Fifteenth Amendments (the former by way of
special caution lest the earlier ratification should
be tainted with the defects of the legislature that
enacted it), elected Republicans to claim seats in
the Senate at Washington, and then ceased further
activity until Congress should declare the state
restored.

The declaration by Congress was slow in forth-
coming. The proceedings in the organization of
the legislature had been of a character to disgust
many of the strongest supporters in Congress of
the act under which it had been effected. Dis-
creditable personal motives had been either clearly
revealed or strongly suggested in connection with
official acts of the state administration, and the
methods of commanding general, governor and
majority in the legislature were all alike con-
demned as unlawful by the judiciary committee
of the Senate.^ The Republican majority in Con-
gress was divided on the precise status of the state,
one faction holding that the existing government
was provisional and fully subject to the will of
Congress, the other holding that since the restor-
ing act of June 25, 1868, the state government
thereby recognized had been a permanent and
regular state government save as to the defect
in membership of the legislature, which had been

1 Sen. Rep., No. 58, 2d sess., 41st Cong.

246 THE PROCESS OF RECONSTRUCTION

corrected through the act of December 22, 1869.
An immediate practical importance was given to
the disputed point by the fact that its settlement
involved the continuance or cessation of Governor
Bullock's control of the state government in
Georgia. Party lines in the state had been so
affected by the governor's conduct of affairs that
the only division playing an important role was
that into ** Bullock men" and "anti-Bullock men."
Under such circumstances the moderate Republi-
cans in Congress thought it best to drop all inter-
ference with the state as quickly as possible, and in
such manner as not to appear to favor any personal
interest ; the radicals were disposed to prolong to
the utmost the dominance of the " Bullock men,"
who were on the whole most likely to maintain
Republican party ideas. From February to July
the bill to pronounce Georgia restored was the sub-
ject of a most obstinate contest in both houses.
To the aid of the radical wing of the Republicans
came the increasing prominence of the Ku Klux
operations in Georgia and other Southern states.
But with Democratic aid the moderates held their
own, though the bill which at last became law on
July 15 contained no definite settlement of the
most hotly contested points.

This act merely recited the ratification of the
Fourteenth and Fifteenth Amendments, and de-
clared Georgia entitled to representation in Con-
gress. It left entirely undetermined the precise

THE PROCESS OF RECONSTRUCTION 247

Status of the existing government in the state.
An attempt on the part of the Bullock party to
prolong its lease of power by assuming that the
provisional character of the government only
ceased after the passage of the act of July 15,
was frowned upon by the national administra-
tion,^ and was therefore abandoned. Members
from Georgia were admitted to both House and
Senate at the next session of Congress, the Sen-
ate fighting over again the issues of the state's
status in connection with the credentials of her
senators. By finally seating those who were
elected in July, 1868, the one house of Congress
seems to have declared that Georgia had been a
state in full standing from before that date. The
course of the executive in exercising military power
in the state in 1870 cannot be reconciled with this
view. But whatever the solution of the problem
may be, from the seating of her members in the
Forty-first Congress, there was no longer doubt
that the reconstruction of Georgia was complete.

VII

The reconstruction of the Southern states, by
the process which we have followed above, is one
of the most remarkable achievements in the history
of government. As a demonstration of political
and administrative capacity, it is no less con-

1 Ann. Cyc, 1870, p. 338.

248 THE PROCESS OF RECONSTRUCTION

vincing than the subjugation of the Confederate
armies as an evidence of military capacity. The
Congressional leaders — Trumbull, Fessenden, Ste-
vens, Bingham and others — who practically di-
rected the process of reconstruction, were men of
as rugged a moral and intellectual fiber as Grant,
Sherman and the other officers who crushed the
material power of the South. The obstacles to
success were as great for the one set of men as
for the other. In the path of reconstruction lay
a hostile white population in the South, a hostile
executive at Washington, a doubtful if not decid-
edly hostile Supreme Court, a divided Northern
sentiment in respect to negro suffrage and an
active and skillfully directed Democratic Party.
Yet the process as laid out in 1867 was carried
through to its completion. With much the feel-
ings of the prisoner of tradition who watched the
walls of his cell close slowly in from day to day
to crush him, the Southern whites saw in the suc-
cessive developments of Congress' policy the re-
morseless approach of negro rule. The fate of
the Southern whites, like that of the prisoner of
tradition, may excite our commiseration ; but the
mechanism by which the end was achieved must
command an appreciation on its merits.

From a constitutional point of view, the actual
conduct of the reconstruction has no particular
interest. The power of the national government
to impose its will upon the rebel states, irrespec-

THE PROCESS OF RECONSTRUCTION

249

tive of any restriction as to means, was assumed
when the first Reconstruction Act was passed, and
this assumption was acted upon to the end. Only
in connection with the relations between legislature
and executive were important issues raised during
the process, and these are not within the scope of
this essay.

It is from the political point of view that the
process of reconstruction is most interesting to the
historical observer. Given the end, there is some-
thing refreshingly efficient in the means employed
to achieve it. Wide and deep divergencies of opin-
ion there were in the Republican majority in Con-
gress ; but they were fought out and settled in the
party caucus ; the capacity for discipline, which is
the surest evidence of political wisdom under party
government, manifested itself in a high degree ;
and the measures that determined the fate of the
South rolled inexorable as the decrees of Provi-
dence from the two-thirds votes of House and
Senate. Was a restrictive construction of a law
devised by clever lawyers, new legislation promptly
overruled it. Was the authority of the attorney-
general invoked on the side of tradition and legal-
ism. Congress ordered the commanders to disregard
him. Were the ordinary methods of political cam-
paigning resorted to by the whites to profit by the
ignorance or stupidity of the blacks, general orders
from headquarters nullified them. Did the Con-
servatives win a success, as in Alabama, by exact

250 THE PROCESS OF RECONSTRUCTION

conformity to the law, Congress ignored its own
law and gave victory to the other side. Was an
assurance embodied in law that admission of a
state should follow ratification of one constitu-
tional amendment, no hesitation was felt about
postponing admission till the ratification of another.
Such methods as these w^ere not the methods com-
mon to political practice in republican governments.
But no more were the circumstances under which
they were employed common in republics. The
methods were well adapted to the end, and the end
was a huge social and political revolution under
the forms of law. Another way of attaining the
end would have been a simple decree by the
majority in Congress to the effect that the freed-
men and white Unionists in the rebel states should
organize governments, and control those states
indefinitely thereafter. Essentially that was the
conscious practical purpose of reconstruction, and
everything beyond that in the content and execu-
tion of the Reconstruction Acts was incidental.
But the incidental testifies to the sagacity of those
who directed the policy.

That the purpose of reconstruction evinced as
much political wisdom as the methods by which it
was attained, is not clear. To stand the social
pyramid on its apex was not the surest way to
restore the shattered equilibrium in the South.
The enfranchisement of the freedmen and their
enthronement in political power was as reckless a

THE PROCESS OF RECONSTRUCTION 25 1

species of statecraft as that which marked **the
blind hysterics of the Celt" in 1789-95. But the
resort to negro suffrage was not determined to any
great extent by abstract theories of equality.
Though Charles Sumner and the lesser lights of
his school solemnly proclaimed, in season and out,
the trite generalities of the Rights of Man, it was
a very practical dilemma that played the chief part
in giving the ballot to the blacks. By 1867 it
seemed clear that there were three ways available
for settling the issues of the war in the South :
first, to leave the Johnson governments in control
and permit the Southern whites themselves, through
the Democratic Party, to determine either chiefly
or wholly the solution of existing problems ; second,
to maintain Northern and Republican control
through military government ; and third, to main-
tain Northern and Republican control through
negro suffrage. The first expedient, however de-
fensible as to social and economic readjustment in
the South itself, was from the standpoint of the
great national issues demanding settlement gro-
tesquely impossible. The choice had to be made
between indefinite military rule and negro suffrage.
It was a cruel dilemma. The traditional antipathy
of the English race toward military power deter-
mined resort to the second alternative. It was
proved by the sequel that the choice was unwise.
The enfranchisement of the blacks, so far from
removing, only increased, the necessity for military

252 THE PROCESS OF RECONSTRUCTION

power. The two expedients were not alternative,
but indissolubly united. Months before the final
restoration of Georgia this truth had begun to
make itself manifest. On March 30, 1870, the
ratification of the Fifteenth Amendment had been
proclaimed, and just two months later the first
enforcement act became law. By the policy thus
expressed the issue was definitely made up which
ended in the undoing of reconstruction. Seven un-
wholesome years were required to demonstrate that
not even the government which had quelled the
greatest rebellion in history could maintain the
freedmen in both security and comfort on the necks
of their former masters. The demonstration was
slow, but it was effective and permanent.

THE IMPEACHMENT AND TRIAL OF
PRESIDENT JOHNSON

The differences of opinion in the Republican
Party as to the method of dealing with the states
lately in rebellion resulted, in February of 1866,
in a definite declaration of war between President
Johnson and the radical leaders in Congress.^ It
was not long before the bad judgment and worse
taste 2 of the President drove over to his enemies
nearly the whole body of Republican congress-
men, and compelled him to look for support to an
insignificant minority consisting chiefly of Demo-
crats. By midsummer the contest had shaped it-
self into a pitched battle between the executive
and the legislative departments of the government.
Mr. Johnson claimed that the policy proposed by
Congress involved the destruction of the consti-
tution ; his opponents charged that his course had
been one of usurpation, and that his purpose was
to establish a despotism based on rebel dominion.
Each side professed to represent the people, and

^ Ante, p. 90.

2 Especially exhibited in his public speeches. See McPherson,
Reconstruction, pp. 58, 127 et seq.
253

254 ^^^ IMPEACHMENT AND

each bent all its energies to securing a favorable
verdict in the Congressional elections in the au-
tumn. The contest was an intensely bitter one.
The canvass was as thorough as the importance
of the issues demanded, and the result was an
overwhelming defeat for the President. A ma-
jority almost as great as that in the Thirty-ninth
was secured to oppose him in the Fortieth Con-
gress. It was made certain that his vetoes could
be overridden, and that, accordingly, reconstruc-
tion could proceed on the lines laid down by the
legislature.

But it was hardly to be expected that President
Johnson would quietly accept such a view of the
situation. The asperities of the campaign had not
tended to mitigate his hostility to his radical ene-
mies, and his historic feat in " swinging round
the circle" ^ had stimulated his enemies even more
perhaps than it had his friends. He felt his duty
to sustain the constitution not in any way affected
by the determination of any number of persons that
the constitution should not be sustained. The rad-
icals in Congress looked forward to the same op-
position that had so seriously interfered with their
progress in the last session. Moreover, Mr. John-
son's control of the official patronage was a source
of the deepest concern to many Republican parti-

1 For the origin of this phrase, so famous in the campaign
literature of the period, see his Cleveland speech, McPherson,
Reconstruction, p. 135.

TRIAL OF PRESIDENT JOHNSON 255

sans.^ From the circumstances of the war, the
patronage in the hands of the President at this
time was more extensive than probably at any
other period in the history of the nation. Mr.
Johnson was no civil-service reformer, and the
steadfastness with which he employed this great
weapon for the purposes of his policy gave bitter
offence to the Congressional majority, whose mem-
bers found themselves cut off from the spoils.
Mr. Wade, of Ohio, who was also notoriously free
from any taint of reform principles, was president
pro tern, of the Senate, and hence was only one
step from the White House. Under such circum-
stances, with a majority in the House sufficient to
overcome all obstacles to an accusation, and with
an ample majority in the Senate to convict, it is not
strange that attention was called to the grounds for
impeachment of the President.

I

On December 17, 1866, about two weeks after
the opening of the second session of the Thirty-
ninth Congress, Representative Ashley, of Ohio,
took the first formal step in the matter. He
sought to get before the House a resolution for
a select committee to inquire into the advisability
of impeaching. His effort at this time failed. On

1 Cf. Ingersoll, Life of Greeley, p. 424 ; also Blaine, Twenty
Years of Congress, II, 267.

256 THE UIPEACHMENT AND

the 7th of January, however, he was successful in
securing the passage of a resolution directing the
judiciary committee to institute the inquiry.^ But
March 4th came, and the Thirty-ninth Congress
expired without further action. The judiciary
committee reported that it had been diligently at
work in accordance with Ashley's resolution, but
that it had not been able to accomplish enough to
make any definite presentation to the House ; the
committee could only state that enough had been
learned to warrant further investigation. ^

Under the law passed by its predecessor, the
Fortieth Congress met in its first session on the
day the former adjourned sine die. Three days
later the impeachment inquiry was referred to the
new judiciary committee. The constitution of
this committee had been carefully watched by the
friends of impeachment, and, as appeared later,
they were quite confident that it had been arranged
to suit them. Great was the disgust, therefore,
of the radicals, especially Thaddeus Stevens and

1 On this same day another resolution to impeach was offered,
the preamble alleging that the purpose of the impeachment was
" to give effect to the will of the people as expressed at the polls
during the recent elections." McPherson, Reconstruction, p. 187.
In the debate on this resolution Johnson was charged with collu-
sion with the rebels in Lincoln's assassination, for purposes of his
own aggrandizement and their restoration to power (Globe, 2d sess,,
39th Cong., p. 443). This charge had been made before, and is
characteristic of the spirit in which the conflict with the President
was carried on.

2 McPherson, Reconstruction, p. 188.

TRIAL OF PRESIDENT JOHNSON 257

Benjamin F. Butler, when on July loth the com-
mittee reported that its labor was completed, and
that its members stood five against and four in
favor of impeachment.^

There is no doubt that the House at this time
was in sympathy with the majority of the com-
mittee. Mr. Pike, of Maine, expressed the preva-
lent feeling when he described the question as
merely whether, after having killed the President
politically, they should proceed to mangle the
corpse. "It is one question," he said, "whether
he has discharged the duties of his office accepta-
bly, and quite another question whether, with him
for a foot-ball, this house shall enter upon the
game of President-making." ^ But the persons who
were seeking to play that very game were not dis-
couraged by their first failure. By sharp parlia-
mentary practice they succeeded in getting the
matter before the judiciary committee again, with
orders to report in the autumn. And when autumn
came their confidence was justified by the an-
nouncement that, by a vote of five to four, the
committee had determined to report a resolution
of impeachment. No new evidence had been
secured, but through some instrumentality not
disclosed, one member of the committee ^ had been
brought to see the light. Mr. Boutwell, of Massa-
chusetts, made the report, and for the first time

1 Globe, 1st sess., 40th Cong., p. 565. ^ /^^v., p. 587.

« Churchill, of New York.

258 THE IMPEACHMENT AND

in the history of the United States, the House of
Representatives was required to vote upon the
direct question of impeaching the highest officer
of the nation.

The consideration of the resolution was taken
up at the opening of the second session of the
Fortieth Congress, in December of 1867. It ap-
peared from the committee's report and from the
debate, that the points of variance between the
Repubhcan factions were two in number. The first
was as to what constituted impeachable offences
in our system. The constitution provides that the
House may impeach any civil officer for "treason,
bribery or other high crimes and misdemeanors."
Treason and bribery were sufficiently accurate
terms, but what should be regarded as the scope
of "high crimes and misdemeanors".-^ By the
radicals it was held that these words were em-
ployed in the widest and most extended sense
known to jurisprudence, and included all cases of
misbehavior in office, whether known to common
or statute law or not. The moderate Republicans
pretty generally adopted the view that these words
limited the list of impeachable offences to such as
were indictable either at common or by statute
law. Otherwise, it was said, it would be in the
competence of the Senate to define an offence as
it proceeded with the trial, and the accused would
have no legal certainty on which to base his de-
fence. Another theory, maintained in this in-

TRIAL OF PRESIDENT JOHNSON l^C)

stance chiefly by the Democrats, held that the
expression ''high crimes and misdemeanors" was
used generically in the constitution, and that it
was left for Congress to declare by legislation
what specific acts should be included in this desig-
nation. As Congress had taken no steps to define
the offences, no impeachment could be based upon
those words of the organic law.

But besides this diversity of opinion on the pre-
liminary legal question, a very radical difference
was manifested as to the sufificiency of the evidence
collected by the committee as a basis for action
against Mr. Johnson. Over a thousand quarto
pages of printed testimony proved that no clue,
however slight, had been left untraced. Never had
the public life of a President been subjected to
more searching investigation by more hostile inves-
tigators. Yet after all, Mr. Boutwell was obliged
to acknowledge that no specific offence could be
charged as a basis for action ; only from a vast
number of acts, related and individual, the general
accusation was framed, that Mr. Johnson had used
the power of the nation for the purpose of recon-
structing the government in the interest of rebel-
lion, and of restoring the old Democratic Party to
power.i So vague a charge could scarcely be ex-
pected to entice the conscientious Republicans into
the radical scheme. The deposition of a President
seemed too serious a matter to rest for justification

1 Globe, 2d sess., 40th Cong., Appendix, p. 60.

260 THE IMPEACHMENT AND

upon mere party apostasy. On December 7, by a
vote of one hundred and eighty to fifty-seven, the
resolution was lost, and the first formal attempt to
oust Mr. Johnson was proclaimed a failure.^

Much angry recrimination was indulged in by
the two factions of Republicans as the result of
this vote, but the radicals were forced to wait for
some actual crime or misdemeanor before they
could expect to carry their point. Among the
moderates was a very large body who believed
that by means of the two-thirds majority in each
house the policy they favored could be carried out,
in spite of executive hostility, without proceeding
to the extreme assertion of their power. It is
beyond doubt that the question of succession was
more or less potent in forming opinion on this
point; Senator Wade, who would succeed to the
presidency in case of Johnson's removal, was not
popular with the Eastern men. But those who op-
posed impeachment were far from lagging behind
in the work of tying the President's hands so as
to render him harmless while still in office. The
impeachment, when it came, was the result and
culmination of a series of assaults on the executive
power which for a time carried the centre of gravity
of our constitutional system as near to the revolu-
tion point on the legislative side as the exigencies
of civil war had a few years before carried it on the
executive side. The President's pardoning power

1 McPherson, Reconstruction, p. 264.

TRIAL OF PRESIDENT JOHNSON 26 1

was limited ; ^ his military authority as commander-
in-chief was shorn of essential attributes ;2 and
his civil prerogative received a terrible blow
through the Tenure-of-Office Act passed March 2,
1867. It was in consequence of Mr. Johnson's
struggles to tear away the meshes which Congress
was so mercilessly weaving about him that a
second and then a third and successful attempt
at impeachment were made.

II

It had been understood, prior to the passage of
the Tenure-of-Office Act, that Mr. Johnson's policy
in regard to the South had the approval of all his
cabinet save one member. The dissenter was
Mr. Stanton, one of the four remaining members
of Mr. Lincoln's cabinet.^ Up to the inauguration
of military rule in the Southern states, the differ-
ence between the President and his secretary of

1 Cf. act of Jan. 17, 1867, repealing the clause of the Confiscation
Act of July 17, 1862, which authorized the President to pardon by
proclamation; and see Blaine, Twenty Years of Congress, II, 281.
By the Reconstruction Act of July 19, 1867, it was specifically de-
clared that no right to vote should result from " any executive par-
don or amnesty"; and the Fourteenth Amendment conclusively
divested the President's pardon of political significance by confer-
ring the power to remove disabilities upon Congress.

•■2 Army Appropriation Act, March 2, 1867. Cf. McPherson,
Reconstruction, p. 178.

3 The others were Messrs. Seward, McCuUough and Welles.
Three of Mr. Lincoln's secretaries, Messrs. Dennison, Speed and
Harlan, had resigned in 1866, in consequence of the President's
breach with Congress,

262 THE IMPEACHMENT AND

war had not occasioned any unpleasantness. But
when the army was called upon for active partici-
pation in carrying out the policy of Congress, the
fact that Stanton was in sympathy with that policy
became immediately of the highest importance.
The Tenure-of-Office Act, by which the President
was deprived of the power of removal, also assumed
great significance. In executing the Reconstruc-
tion Acts, the administration adopted the policy of
conforming to the letter of the law with great ex-
actness, while giving the least possible heed to what
was deemed its revolutionary spirit. With what
success this policy was carried out is indicated
by the supplementary act of July 19, 1867, which
Congress was obliged to add to its original enact-
ment. But the secretary of war was no party
to the devising and execution of this Presidential
scheme. He became, on the contrary, altogether
isolated from the rest of the administration, and, as
his enemies charged, employed his position only to
obstruct executive action and betray the secrets of
the cabinet consultation room to the President's foes.
Stanton remained impervious to repeated inti-
mations that his retirement would not be opposed
by the President, till, on the fifth of August, 1867,
Mr. Johnson formally called for his resignation.
The secretary declined to resign before the next
meeting of Congress. A week later the President
sent a note in these words : " By virtue of the
power and authority vested in me as President by

TRIAL OF PRESIDENT JOHNSON 263

the constitution and laws of the United States, you
are hereby suspended from office as secretary of
war." At the same time General Grant was au-
thorized to act as secretary ad interim. Stanton
replied, denying the President's right to suspend
him '' without the advice and consent of the Sen-
ate, and without legal cause " ; but, in view of the
appointment of the General of the Army, submit-
ting, under protest, to superior force.^

It is important just at this point to consider
under what authority this order of suspension was
issued. Before the passage of the Tenure-of-Office
Act, while the power of removal was recognized as
belonging to the executive, obnoxious officers had
been generally disposed of during a recess of the
Senate by simple removal, and when the Senate
was in session, by the appointment of a successor.
Under this act, however, no removal was permitted
during a recess. The second section provided that
in case of incapacity or legal disqualification for
the performance of his duties an officer might be
suspended by the President ; but the cause must
be reported to the Senate within twenty days after
the opening of the next session, and if that body
refused to concur in the suspension, the officer
should immediately resume his duties.^ In his
communication to Stanton, Johnson stated his

1 For the whole correspondence, see McPherson, Reconstruc-
tion, p. 261.

2 For text of bill, see McPherson, Reconstruction, p. 176.

264 THE IMPEACHMENT AND

authority to be "the constitution and the laws,"
but omitted to specify what laws, and especially
whether the Tenure-of-Office Act was one of them.
This omission, as afterward appeared, was far from
unintentional.

On December 12 the President sent to the
Senate a message setting forth his action in sus-
pending Stanton, and stating at length the inhar-
monious situation which the secretary's presence
in the cabinet had produced.^ But here again no
mention was made of the Tenure-of-Office Act as
the authority for the suspension. The act was
discussed, and its unconstitutionality asserted in
terms similar to those of the veto message when
the law passed, but no admission was made of its
pertinence to the present case. The Senate de-
bated the President's communication for about a
month, and finally, on January 13, 1868, refused to
concur in Stanton's suspension. This action was
taken in accordance with the theory that the sus-
pension was based on the Tenure-of-Office Act.
Notice of the Senate's action was immediately
served upon General Grant, who thereupon notified
Mr. Stanton that, under the Tenure-of-Office Act,
the functions of the ad ijtierim incumbent had
ceased. The general thus committed himself to
the Senatorial view of the President's action.
Stanton resumed possession of the War Depart-
ment, but without any communication with, or

1 See supplement to Cong. Globe, " Trial of the President," p. 51.

TRIAL OF PRESIDENT JOHNSON 265

recognition by, the head of the administration.^
The situation was anomalous. It could only be
explained by an official announcement of Johnson's
attitude toward the Tenure-of-Office Act. If he
recognized that act as valid, Stanton must now be
his secretary of war; if he did not recognize it,
the War Department must be without a head.

On January 29 Mr. Johnson instructed General
Grant not to obey any order from that depart,
ment, assumed to be issued by the direction of
the President, unless such order should be known
by the general to have been authorized by the
executive. Grant replied that under the law
he should be obliged to regard orders coming
from the secretary of war as authorized by the
President. This response precipitated a corre-
spondence of a somewhat acrimonious character
between Johnson and Grant, in which the motives
of the former in the course pursued in respect to
Stanton were fully revealed.^ The President, it
appeared, had resolved to get rid of the secre-
tary at all hazards. He refused to admit that the
Tenure-of-Office Act covered Stanton's case, though
he was aware that the latter held that it did. But
even if the terms of the act did apply, the Presi-
dent was convinced that the law was a flagrant
breach of his constitutional rights, and was deter-

1 See Stanton's letter transmitting to the House the Grant-
Johnson correspondence; McPherson, Reconstruction, p. 282.

2 For the correspondence, see McPherson, Reconstruction, p. 283.

266 THE IMPEACHMENT AND

mined to bring the matter to a judicial decision.
For this purpose, having once dispossessed Stan-
ton, he proposed to make the secretary apply to
the courts for reinstatement, and thus to test the
question of constitutionality. In pursuance of this
plan. General Grant had been requested to remain
in possession of the department, whether the Sen-
ate should concur in the suspension or not. If the
Senate should refuse to concur, Stanton would re-
gard himself as entitled to immediate possession ;
but if Grant should hold on, the only method through
which Stanton would be able to secure his office
would be by resort to the courts. Grant manifested
a disinclination to become involved in the political
quarrels of the departments, and thereupon Johnson
requested that if he should decide not to take the
responsibility, he should let the President know be-
fore the Senate acted, in order that an incumbent
might be secured who could be relied upon to carry
out the executive's plan. As to the sequel, author-
ities differ. Mr. Johnson and five of his cabinet
asserted that General Grant agreed to do as
requested, and then, in deliberate violation of his
promise, held on till the Senate's action relieved
him. The general, on the other hand, denied hav-
ing been a party to any such agreement. What-
ever the truth of the case, however, it was certain
that the President's plan had miscarried, and that,
if the Tenure-of-Office Act was valid and appli-
cable, the obnoxious Stanton was still an officer
of the administration.

TRIAL OF PRESIDENT JOHNSON 267 ^

The correspondence between Johnson and Grant
was called for by the House of Representatives,
and formed the basis of a second attempt at im-
peachment. An effort was made to formulate an
indictment on the President's instructions to Grant
not to obey the orders of his superior in the War
Department. The careful wording of the instruc-
tions, however, and their total lack of effect, proved
too serious obstacles for even the hot-heads of the
reconstruction committee to surmount. Only three
out of the nine members of the committee favored
action. 1 ^

It is to be noticed that the conflict between the
executive and the legislature had now centred in
a struggle for the control of the military depart-
ment. This fact had the effect of throwing over
the situation a sort of martial glamour, which was
artfully utilized to stimulate the passions of parti-
sans on both sides. Wars and rumors of wars
were the topics of the times. The President's
hostility to Secretary Stanton was treated as evi-
dence of a design to employ the army in a repe-
tition of "Pride's Purge." Congress was to be
dissolved, and Andrew Johnson was to be king.^
At the same time, the friends of Mr. Johnson
pointed with alarm to the open strides of the radi-

1 McPherson, Reconstruction, p. 265.

2 Kelley, of Pennsylvania, drew a harrowing picture of the Presi-
dent in the role of the third Napoleon. — Globe, 2d sess., 40th Cong.,
p. 1348.

268 THE IMPEACHMENT AND

cals toward their object of converting the govern-
ment, by force, from the balanced system of the
fathers into the dominion of a party caucus. Sub-
mission to the dictates of this oligarchy was to be
enforced through the army, against all efforts of
the President to defend the rights conferred upon
him by the constitution.

In the midst of such recriminations and in the
extraordinary position of the War Department, a
crisis must be reached soon. It came on the twenty-
first of February. On that day the President issued
two orders, one removing Stanton from office as
secretary of war, and the other appointing Ad-
jutant-General Lorenzo Thomas secretary ad in-
terim, and directing him to assume immediately the
duties of the position. ^ Thomas repaired to Stan-
ton's office and communicated to him the Presi-
dent's will. Without indicating what course he
should pursue with reference to the order of re-
moval, Stanton asked until the next day to adjust
his personal affairs in the office. His request was
granted. Early the next morning Thomas was
arrested by the District police on a charge of vio-
lating the Tenure-of-Office Act. He had been
boasting that he would use force to eject Stanton
in case of resistance, and the latter had sworn out
a warrant for his arrest. Having been released
on bail, the somewhat humbled secretary ad in-
terim proceeded again to the War Department and

1 McPherson, Reconstruction, p. 265.

TRIAL OF PRESIDENT JOHNSON 269

formally demanded possession. Stanton formally
refused to recognize the order of removal, and
ordered Thomas to his duties as adjutant-general.
The latter thereupon reported to the President,
and affairs were left in statu quo pending the next
move toward either judicial or forcible settlement
of the dispute.^ Mr. Johnson immediately took
steps toward bringing the defiant secretary before
the Supreme Court by a writ of quo warranto^
but the arraignment of Thomas as a criminal,
and the energetic action of Congress, soon to be
narrated, quickly put the President on the defensive
and interrupted all aggressive action. The lawyers
who took charge of Thomas's defence did indeed
devise a plan by which his arrest could be utilized
to bring the whole subject before the Supreme
Court by a writ of habeas corpus ; but at the very
first manifestation of such a purpose the ardor of
the prosecution was seized with a sudden chill, and
the culprit whose alleged crime had convulsed the
whole nation was released from custody against the
desire of his own counsel.^ All interest then be-
came centred in the steps which Congress was tak-
ing for the maintenance of its authority as vested
in Stanton.

On the day of the removal Mr. Johnson sent a
message to the Senate, transmitting copies of the
orders issued, and basing his action, as in the case

1 Testimony of Thomas, Trial of the President, pp. 136 et seq.

2 Testimony of Cox, Trial, pp. 201 et seq.

2/0 THE IMPEACHMENT AND

of the suspension, on the "power and authority
vested in the President by the constitution and
laws of the United States." The Senate's reply
was a resolution, passed by a party vote, that " un-
der the constitution and laws of the United States,
the President has no power to remove the secre-
tary of war and designate any other officer to per-
form the duties of that office ad interim^ On the
same day, Mr. Stanton communicated the order of
removal to the House of Representatives. It was
referred to the reconstruction committee, and on
the following day the committee reported a reso-
lution, that "Andrew Johnson, President of the
United States, be impeached of high crimes and
misdemeanors in office." A continuous session of
two days, devoted to debate, ended with the adop-
tion of the resolution, 128 to 47, a strict party vote.^
To those Republicans who had opposed the pre-
vious attempts on the ground that only a technical
crime or misdemeanor could give good cause for
impeachment, the President seemed to have de-
liberately removed the obstacle which their con-
sciences had raised.2 The Tenure-of-Office Act
prohibited removal from office by the President
except with the advice and consent of the Senate.
In section six it was enacted that " every removal,
appointment or employment made, had or exercised

1 McPherson, Reconstruction, p. 266.

2 See remarks of Wilson, of Iowa, Globe, 2d sess., 40th Cong.,
p. 1386.

TRIAL OF PRESIDENT JOHNSON 2/1

contrary to the provisions of this act, and the mak-
ing, signing, sealing, countersigning or issuing of
any commission or letter of authority for or in
respect to any such appointment or employment,
shall be deemed, and are hereby declared to be,
high misdemeanors." In the face of these pro-
visions the President's action appeared to be a
most gross violation of the laws he had sworn to
maintain.

From the moment the resolution of impeach-
ment was adopted the moderate wing of the Re-
publicans in the House disappeared, and many of
its leaders joined in the struggle for prominence
in the great achievement of ousting a President.
Under the special leadership of Messrs. Thaddeus
Stevens, Benjamin F. Butler and George S. Bout-
well, matters were pushed with the utmost dili-
gence, and, on the second of March, nine articles
were adopted by the House. The next day two
others were added, and on the fourth the articles
were formally exhibited to the Senate. The latter
body met as a court of impeachment on the follow-
ing day, with Chief Justice Chase in the chair. Mr.
Johnson appeared by counsel, and, on asking forty
days in which to prepare an answer to the charges,
was allotted ten. The preliminaries having been
settled, the trial actually began on the thirtieth of
March, with an opening address for the prosecu-
tion by Mr. Butler.^

1 The '* managers " appointed by the House to conduct its case

2/2 THE IMPEACHMENT AND

III

As to the issues involved in the trial, all that
the limits of this paper permit is a consideration
of the most fundamental questions of constitu-
tional law presented. The eleven articles of im-
peachment exhibited to the Senate charged the
President with high crimes and misdemeanors in
office, in connection with five different matters :
(i) The order removing Stanton; (2) the order
appointing Thomas ; (3) a conversation with Major-
General Emory, in which Mr. Johnson declared
unconstitutional the law requiring all orders to be
issued through the General of the Army ; (4) three
public speeches of the President, in which Con-
gress was criticised in very harsh and intemperate
language; and (5) his opposition to the execution
of the reconstruction measures of Congress.^

By the first article, the order removing Stanton
was declared to be an intentional violation of the
Tenure-of-Office Act, and also of the constitution.
Articles four to eight represented the removal as

were Messrs. Bingham, Boutwell, Wilson of Iowa, Butler, Williams,
Logan and Stevens. Of these, Bingham and Wilson had opposed
the first attempt to impeach, but the others were all radicals of the
most extreme type. For the defence of the President appeared
Mr. Stanbery (who resigned the office of attorney-general to take
part in the trial), ex-Judge Benjamin R. Curtis, and Messrs. Evarts,
Nelson and Groesbeck.

1 For the articles, see Trial of the President (supplement to the
Cong. Globe), p. i.

TRIAL OF PRESIDENT JOHNSON 273

the result of a conspiracy, on the part of the Presi-
dent and General Thomas, to prevent Stanton
from holding his lawful office, to prevent the exe-
cution of certain laws, to seize the property of the
United States in the War Department, and for
other illegal purposes. The conspiracy charges
were based on the law of July 31, 1861, which had
been enacted to make criminal the actions of the
rebels.^ Article two declared the President guilty
of intentional violation of the constitution and of
the Tenure-of-Office Act, in issuing the letter of
authority to Thomas, without the consent of the
Senate, though in session, and when there was no
vacancy in the office of secretary of war. The
third article represented the same act simply as
being without authority of law. Article nine
charged the President with a high misdemeanor in
seeking to induce General Emory to violate the
law in reference to the issuing of orders in the

1 The act was as follows : " If two or more persons within any
State or Territory of the United States shall conspire together to
overthrow, or to put down or to destroy by force, the government
of the United States, or to levy war against the United States, or to
oppose by force the authority of the government of the United States;
or by force to prevent, hinder or delay the execution of any law of
the United States; or by force to seize, take or possess any prop-
erty of the United States against the will or contrary to the author-
ity of the United States; or by force or intimidation or threat, to
prevent any person from accepting or holding any office or trust or
place of confidence under the United States; each and every person
so offending shall be guilty of a high crime, etcr—12 Statutes at
Large, p. 284.

274 THE IMPEACHMENT AND

army. The tenth article was only adopted by the
House after the most strenuous efforts of General
Butler to secure such action. It quoted from the
published reports of divers speeches delivered by
Mr. Johnson during the campaign of 1866,^ and
charged him with having sought '' to destroy the
regard and respect of all the good people of the
United States for the Congress and legislative
power thereof/' and to excite the odium and re-
sentment of the same good people against Con-
gress and the laws by it duly and constitutionally
enacted. The eleventh article was rather difficult
to analyze, but Chief Justice Chase decided the
gravamen of the article to be that the President
attempted to defeat the execution of the Tenure-
of-Office Act ; but his attitude toward Congress
and its reconstruction policy was introduced as
means contrived in furtherance of this attempt.^
Skilful hands in the House had drawn up this
article to accommodate the conscientious scruples
or inconvenient records of certain senators in ref-
erence to the scope of the President's power of
removal. By involving the general reconstruction
issue this object was attained.

Of the conspiracy charges little need be said.

1 The three speeches from which extracts were made in the speci-
fications under article ten were delivered respectively at Washing-
ton, Cleveland and St. Louis, on August i8, September 3 and
September 8, 1866. For the full reports of the speeches, see
McPherson, Reconstruction, pp. 127, 134 and 136.

2 Trial of the President, p. 409.

TRIAL OF PRESIDENT JOHNSON 275

The evidence introduced to support them was
ludicrously insufficient. No vote was ever reached
on the articles embodying them, but the written
opinions of the senators indicate clearly that none
but the most violent radicals would have regarded
the charges as proved. The same may be said
of the Emory article. It appeared from the testi-
mony that the President's expression of opinion
to the general on the law in question was of the
most casual nature, and wholly devoid of any indi-
cation of a design to corrupt the officer.^ As to
the speeches of Mr. Johnson, they had constituted
one of the grounds for the previous attempt to
impeach. One of the managers now acting for
the House, Mr. Wilson, of Iowa, had written an
elaborate report from the judiciary committee,
denying that the President's speech-making con-
stituted an impeachable offence. The report had
been sustained by the House's action, and it now
required all the assurance which General Butler
could boast to ask for conviction on the article
thus condemned. The defense paid slight atten-
tion to this part of the case, and in argument relied
almost entirely on the authorities which Manager
Wilson had so kindly provided. Such of the mod-
erate Republican senators as deigned to notice the
tenth article in their written opinions, did so only
to deny its constitutionality.

1 See testimony of General Emory and of Secretary Welles and
his son, Trial, pp. 78, 221, 235.

2/6 THE IMPEACHMENT AND

The questions, therefore, to which our attention
will be confined are such as arose in connection
with the removal of Stanton and the appointment
of Thomas, and the relation of these acts to the
constitution and the laws. What these questions
were will appear from the President's formal reply
to the articles presented by the House. To the
first article the response ^ was substantially as
follows : Stanton was appointed by Lincoln, and
commissioned, under the act of 1789 establishing
the War Department, to hold his office during the
pleasure of the President. For the conduct of
this department the President, as chief executive,
is, under the constitution, responsible. A sense
of this responsibility contributed to the conviction
in the mind of the President, in August, 1 867, that
Stanton should no longer continue in the office.
An additional ground for this conviction was the
fact that the relations between Stanton and the
President no longer permitted the latter to resort
to the secretary for advice, as was his constitutional
right. He had accordingly suspended Stanton
from office, not under the Tenure-of-Office Act,
till the next meeting of the Senate (and now is
revealed the true bearing of the President's silence,
before mentioned, in respect to his authority for
the suspension), but indefinitely, and at the pleasure
of the President, under the belief that the power
of removal confided to the executive by the con-

1 Trial, p. 12.

TRIAL OF PRESIDENT JOHNSON 277

stitution included the power of indefinite suspen-
sion. The President further maintained that the
power of removal was a constitutional right which
no legislation could take from him. Such being
the case, the Tenure-of-Office Act was void. But
even while he entertained this belief, and was
further satisfied that the first section of the act
did not apply to Stanton, the President had felt so
strongly the importance of getting rid of the sec-
retary that he had sought, by reporting the sus-
pension to the Senate in apparent conformity with
the obnoxious act, to accomplish that high purpose
without raising the conflict on the constitutional
question. Having failed in securing his object,
nothing remained for him but to take such steps
as he should deem necessary and proper for bring-
ing to judicial decision the question of Stanton's
right to resume his office. With this end, and
this end only, in view, the President had issued
the order of removal to Stanton, and the letter of
authority designating General Thomas as secretary
ad interim. As to this designation of a temporary
officer, the President denied that it was an appoint-
ment such as required the consent of the Senate,
but claimed that it was in accordance with long
practice, based on a law of 1795-

From these pleadings it appeared that the judg-
ment of the Senate must involve some answer to
the following questions :

I. Is the power of removal in our system in the

2/8 THE IMPEACHMENT AND

President alone, or in the President and Senate
conjointly ?

2. Does the power of removal include the power
of indefinite suspension of an officer ?

3. Can a vacant office be filled indefinitely by
an ad i7iterim appointee, installed without refer-
ence to the Senate ?

4. Most important of all, is it lawful in our sys-
tem for the President to violate an act of Congress
which he considers unconstitutional, in order to
secure a judicial decision as to its validity ?

But before entering upon an examination of
these points it is necessary to notice the Senate's
judgment on the preliminary questions previously
touched upon : What are impeachable offences
under the constitution ; and what is the character
and capacity of the upper branch of the legislat-
ure when sitting as a court of impeachment ? As
to the first question, the different theories held
have already been stated. The managers in the
pending trial were obliged, on account of the
article which Butler had forced in, to maintain
the doctrine that " high crimes and misdemean-
ors " were not limited to indictable offences ; for
the public addresses of the President were not of
a criminal character under any law, either common
or statute. An impeachable high crime or misde-
meanor was held by the prosecution to be " one
in its nature or consequences subversive of some
fundamental principle of government, or highly

TRIAL OF PRESIDENT JOHNSON 279

prejudicial to the public interest." Besides the
violation of positive law, it might consist in "the
abuse of discretionary powers from improper mo-
tives, or for any improper purpose." ^ That this
was the doctrine of the English law could scarcely
be doubted.2 The few American precedents up
to this time pointed unmistakably to the same con-
clusion. There had been five cases of impeach-
ment by the House of Representatives. Of these
one had been against a senator,^ and the Senate
had decided that the accused did not fall within
the designation "civil officers of the United States."
All the rest had involved judges, and in every
instance the articles exhibited by the House had
charged some offence not a technical violation of
law. Two of the impeached persons were con-
victed.^ Pickering, in 1802, was found guilty,
among other things, of drunkenness and profanity
on the bench of his court. Humphreys, in 1861,
was removed from office on conviction of advocat-
ing secession in a public speech, and of other acts
favoring rebellion, when those acts were not crimi-
nal under any law of the United States. This
latter case was, for obvious reasons, of little value,
and especially as no defence was made. But the

1 Trial, p. 29.

2 See brief of authorities, by Lawrence, of Ohio, Trial, p. 41-
8 Blount, of Tenn., 1797.

4 Chase, Associate Justice of the Supreme Court, was acquitted,
1805; Peck, a district judge, 1830.

28o THE IMPEACHMENT AND

fact remained that the House had on four occasions
construed its power of impeachment to extend to
offences not indictable, and in one case had se-
cured the Senate's ratification of its construction
by a conviction.

But it was not alone in precedent that the prose-
cution had a strong case. Substantial grounds
were not wanting on which to base the claim that
a misdemeanor in office was not distinct from mis-
behavior in office. On any narrower interpreta-
tion of the term misdemeanor, the constitution
affords no method by which an insane judge may
during his lifetime be divested of his official func-
tions. The fact that the penalty in case of im-
peachment is limited to disqualification for holding
office was declared to indicate a purpose rather to
protect the people from bad officials than to estab-
lish a jurisdiction for the punishment of crimes.
It was in the development of this view that Gen-
eral Butler brought forward the further proposi-
tion of his school, namely, that the Senate, when
acting on impeachment cases, was not a court, nor
its procedure a trial. Such being the case, the
ordinary restrictions of judicial process, it was
argued, have no application. The guaranties ac-
corded to the accused in jury trials need not be
granted here. There is no right of challenge to
any member of the Senate for any cause whatever,
and no appeal to any law save the constitution.
In short, the body sitting to determine the accusa-

TRIAL OF PRESIDENT JOHNSON 28 1

tion against the President was held to be, not a
court, but the Senate of the United States, " con-
vened as a constitutional tribunal to inquire into
and determine whether Andrew Johnson, because
of malversation in office, is longer fit to retain
the office of President of the United States, or
hereafter to hold any office of honor or profit."^
A very important deduction from this proposition
was that the ordinary rules of evidence need not
be observed, and that each senator in giving judg-
ment was free to rest his opinion upon any per-
sonal information he possessed that bore on the
general question of fitness, without being at all
confined to the merits of the case made on the
particular articles. Each senator must be a law
unto himself, and must give his verdict on his own
views of what the country's welfare demanded.

As against this doctrine, the defenders of the
President pointed out that to adopt these extreme
conclusions would obviously destroy every vestige
of judicial character in the Senate's action. A
presentation of formal articles of impeachment by
the House would be unnecessary, and the form of
a trial a work of supererogation. The constitu-
tion, it was argued, contemplates the substance as
well as the form of judicial action by the Senate.
That body is empowered to "try" impeachments.
It assumes a peculiar character through the oath
required by the senators when sitting for that

1 Trial of the President, p. 30-

282 THE IMPEACHMENT AND

purpose. Its concurrence in the charges is a
** conviction," and is followed by a "judgment."^
This adherence to the technical terminology of the
law is significant. The precedents, moreover, it
was contended, had already, before Mr. Johnson's
trial, established the reality of the Senate's judicial
character. This conclusion was sanctioned now by
a test vote forced by the managers early in the pro-
ceedings. A question arose as to whether the chief
justice should decide in the first instance on the
admissibility of evidence, or refer the matter im-
mediately to the Senate. It had been argued that
the Senate's capacity as a court had been fixed by
the constitutional mandate calling the chief justice
to preside in the most important case that could
come before it. The managers maintained that
the chief justice acted, not as a presiding judge
and an integral part of the trying body, but only
as the mouthpiece of the Senate. He could decide
nothing himself. He was not the chief of a court
in banc, but the presiding officer of the Senate for
a particular purpose. Under the constitution the
Senate of the United States was given the sole
power to try all impeachments. No one not a
senator, therefore, could take any part in the trial
save as the ministerial agent of the Senate.

After full discussion the question was decided
by an amendment to the rules which gave the
chief justice power to decide questions of law, his

1 Constitution, art. i., sec. 3.

TRIAL OF PRESIDENT JOHNSON 283

ruling to stand as the judgment of the Senate
unless a vote should be demanded by some sena-
tor. The amendment was adopted by a vote of
31 to 19.^ On the same day the chief justice had
occasion to give the casting vote in case of a tie.
Senator Sumner thereupon offered a resolution
declaring that such vote was without authority
under the constitution of the United States. The
resolution was lost, 21 to 27.^ These votes seem
conclusive of the Senate's opinion that on this
occasion, at least, it was sitting in the capacity of
a court.

On the question as to what are impeachable
offences, the whole history of Mr. Johnson's case
supports the view that, contrary to the prece-
dents, a violation of some positive law must be
proved. The House refused once to impeach
on the speeches. Its later adoption of the article
based on them was prompted by an apparent defi-
ance hurled at Congress by the President, and even
then was determined largely by the plea that the
inclusion of this article could do no harm even
if it did no good.^ And finally, no vote was ever
demanded from the Senate on this article, while the
tenor of the opinions filed by senators renders it
doubtful that even a simple majority would have
voted to convict, much less the two-thirds required.

1 Trial, p. 63.

2 Ibid.

3 See Globe, 2d sess., 40tli Cong., p. 1642.

284 THE IMPEACHMENT AND

IV

Taking up now the questions presented in im-
mediate connection with the pleadings, the first is
that as to the power of removal. Summarily, the
case which the prosecution sought to establish was
this: I. The removal of the secretary of war with-
out the advice and consent of the Senate was a
violation of the Tenure-of-Office Act. 2. Whether
or not this was true, the removal while the Senate
was in session, and otherwise than by the appoint-
ment of a successor, was a violation of the con-
stitution. 3. These violations of law and consti-
tution were intentional and were designed as an
open defiance of Congress. 4. Even if the Presi-
dent's motive had been merely to get a judicial
construction of a doubtful constitutional point, as
he claimed, that fact would have no bearing on
the determination of his guilt ; for his duty is to
execute without discretion the legally enacted will
of the legislature.

In what organ of the government the constitu-
tion vested the power to remove an officer from
his position, is an old and familiar question. Its
practical discussion began in the halls of the First
Congress. In providing for the organization of
the executive departments in 1789 the whole sub-
ject of removal from office was fully debated. The
cardinal point of the discussion was the nature of
the power — whether it was absolute and an inde-

TRIAL OF PRESIDENT JOHNSON 285

pendent attribute of the executive office, or whether
it should be regarded as only to be exercised
through the clearly defined process of appoint-
ment. The former opinion prevailed, though by
a very slender majority.^ A construction was thus
put upon the constitution by legislative action, and
that construction was accepted by all. Though the
debates upon the adoption of the constitution rather
favored the doctrine which Congress rejected,^ yet
up to 1867 no successful practical objection had
been made to the exercise of the power early con-
ceded to the President.

The managers endeavored to break the force of
these facts by developing the theory of a distinction
between removals during the session of the Senate
and removals during recess. They admitted that
the act of 1789 warranted the President in dis-
missing an unworthy officer peremptorily when the
impossibility of consulting the Senate prevented
resort to the ordinary method. The desirability
of a speedy means by which the service could be
purged of incompetent or corrupt officials had been
the chief argument for Congress' action in 1789.
But this reason had no application when the ad-
visory body was ready to act on an hour's notice
in supplanting the objectionable person. It was
confidently claimed that an examination of the

1 The bill in which the issue was involved passed the Senate only
by the casting vote of the Vice-President.
* See Federalist, No. 77.

286 THE IMPEACHMENT AND

records would disclose a uniform recognition of
this distinction in the practice of the departments.
A single perfectly defined precedent, however,
nullified the claim. It was revealed that on the
13th of May, 1800, Timothy Pickering, Secretary
of State, was summarily removed by President
Adams, after having declined to comply with a
request to resign.^ It is true the nomination of
his successor was sent in on the same day, but
the acts appear on the record as entirely separate
and unconnected. The case bears a striking anal-
ogy to that of Stanton and it was a strong support
for the defence. Above all, however, stood the
fact that in all the discussion of the theoretical
question no distinction had ever been drawn on
the basis of the Senate's readiness to act. The
power of removal had always been treated as
unsusceptible of qualification in that respect, and
the only question had been, should it be exercised
by the President alone, or by the President and
Senate together.

Prior to the passage of Tenure-of-Office Act, the
practice of removal during recess at the will of the
executive had become not only a notorious fact,
but a most conspicuous abuse. By the constitu-
tion, the President was empowered to fill vacancies
"happening" during the recess of the Senate by
granting commissions running to the end of the
next session. As a matter of practice, the temporary

1 Trial, pp. 117-119.

TRIAL OF PRESIDENT JOHNSON 287

appointee was regularly nominated and confirmed
when the Senate met, and no questions were asked
about how the vacancy " happened." ^ By the act
of 1867 Congress wholly reversed the conclusion
reached in 1789, and borne out in the later practice.
The power of removal, as an independent right,
was annihilated. Every officer appointed by the
advice and consent of the Senate was declared
entitled to hold the office till the Senate had agreed
to his removal by advising and consenting to the
appointment of his successor. This, of course,
withdrew removal from the category of causes
through which a vacancy could "happen" during
the recess of the Senate. For the sake of disci-
pline, however, the President was authorized, in case
of misconduct, crime, incapacity or legal disquali-
fication, to suspend an officer, and designate some
one to perform his duties till the Senate should
act on the case. A full report on the subject must
be made to the Senate within twenty days of its
next meeting. If that body agreed that the cause
for suspension was sufficient, the officer might
be removed; if it did not concur, the officer
should forthwith resume the functions of his
office.2 It was by virtue of these provisions that
Stanton was now held to be regularly in authority
as secretary of war.

1 A futile attempt was made to reform this practice as early as
1826. Benton, Thirty- Years' View, ch. xxix.

2 Tenure-of-Office Act, sec. 2.

288 THE IMPEACHMENT AND

Assuming for the present that Stanton was not
excepted from the operation of this law by a pro-
viso to be noticed later, Johnson's attitude with
reference to the act was certainly one of defiance.
But the defiance was hurled from the higher
ground of a constitutional mandate. The Presi-
dent claimed that his power to remove at pleasure
was derived from the constitution, and was, there-
fore, as far beyond the range of legislative restric-
tion as, for example, the right to grant pardons.
For, wherever the organic law had placed the
power of removal, it was certainly not in Congress.
The act of 1789 did not confer the right on the
President; for Congress never had the right to
confer. That act had by its terms merely recog-
nized that the power of removal had been vested
in the executive by the same authority which had
vested other powers in Congress — namely, the
constitution.^ This view had been adopted by
commentators and by all departments of the gov-
ernment, and had served as a working principle of
our polity for seventy-eight years. Such concur-
rence of all authorities of weight in our system had
clothed an implied function of the executive with
all the sanctity of an expressly granted power.
The Tenure-of-Office Act was therefore void, and
its execution could not be a duty of the President.

Against this argument the managers maintained

1 Annals of Congress, 1st Cong., pp. 600-608. See especially
Benson's remarks.

TRIAL OF PRESIDENT JOHNSON 289

that the Congressional construction of 1867 was
as good as that of 1789. The constitution was
unchanged in respect to the power of removal.
Wherever the right was seventy-eight years ago,
it still continued to be. If the legislature's view
of its location was conclusive upon the other de-
partments then, so must the later opinion be now.
The earlier position had been taken mainly with
reference to the exalted character of the first
President, and the confidence everywhere reposed
in him. Experience had proved that the principle
thus apparently sanctioned was hostile to the true
interests of the nation. In the hands of bad men,
the power of removal had been used to exalt
unduly the executive at the expense of the other
departments. It was the duty of the people's
immediate representatives in Congress to correct a
pardonable error of the fathers, and to preserve
the system from degenerating into a despotism.
In pursuance of this duty, and under the authority
conferred by the constitution to make all laws
necessary and proper for carrying into execution
the powers vested in the government and its
officers. Congress had passed the Tenure-of-Office
Act. Further, it was argued, by enacting the law.
Congress had expressed its opinion on the question
of constitutionality. By a two-thirds majority in
each house overriding a veto supported by all
the arguments at the President's command, a con-
clusive emphasis had been put upon that opinion.

290 THE IMPEACHMENT AND

If any doubt still remained as to the constitution-
ality of the act, it surely was not for the President
to resolve it. By neither constitution, nor law,
nor practice had the executive been endowed with
authority to declare a law void on any ground.
His duty was faithfully to execute the laws.
What must be considered laws } A bill passed by
both houses and signed by the President is a law.
Or when the President has sent back a bill with
objections, and both houses have passed it again,
and by two-thirds in each case, the constitution
declares that "it shall become a law." Such a
law must be faithfully executed, or the President
fails in his duty. On no pretence can he refuse
compliance with the constitutionally expressed will
of the legislature.

At this point was focussed the whole issue be-
tween the two political departments. Here Con-
gress concentrated its heaviest fire, and sought to
crush once for all the independence of the execu-
tive. If Andrew Johnson had been convicted on
a direct presentation of the question here raised,
the co-ordination of the departments in the Ameri-
can system would have been a thing of the past ;
and, on the other hand, if an acquittal had been
secured on the same issue, the natural vantage-
ground occupied by the legislature under the con-
stitution would have been thenceforth held by the
executive. Divested of all qualifications, the bare
question was : Could the President, for any pur-

TRIAL OF PRESIDENT JOHNSON 291

pose, decline to execute or deliberately violate a
law duly enacted under the forms prescribed by
the constitution ? If he could, his will, and not
that of the legislature, would be the law; if he
could not, he would be only the ministerial agent
of Congress, and not the chief of a co-ordinate
department.^

If it be held that the President has the unquali-
fied right to violate an act of Congress at his will,
the absurdity is obvious, as was practically con-
ceded by the defence. If, on the other hand, he
be denied the right to do it under any circum-
stances, what, they asked, is to be considered his
duty in case, for example. Congress forbids him to
negotiate a treaty, or to grant a pardon, or to act
as commander-in-chief of the army } These powers
are conferred upon the President in unmistakable
terms by the constitution. For their exercise he
is responsible not to Congress, but to the makers
of the constitution, that is, the people. An act of
Congress that deprives him of these rights, he
certainly is not bound to obey. Again, there are
powers which are clearly placed in other hands by
the constitution. Laws for the carrying out of
such powers he is bound to execute without ques-

1 Bingham, especially, in closing the argument for the prosecu-
tion, labored to make the verdict depend on the bare question
whether the President could interpret judicially the acts of Congress.
His appeal to Senatorial esprit de corps was very thin?y disguised.
Trial, p. 385.

292 THE IMPEACHMENT AND

tion ; any violation of rights by such laws can only
be remedied by repeal of the laws or by resort by
the aggrieved parties to the protection of judicial
interpretation. But suppose Congress assumes
the exercise of a doubtful power, — a power which
certain precedent and respectable authority concur
in attributing to the executive ? Such assumption
is considered to violate a constitutional right of the
President. He is not warranted in simply resist-
ing the law, decreeing it to be unconstitutional ;
for that would be arrogating to himself the func-
tions of the judiciary. But there is no good reason
why he should not take steps toward securing an
opinion on the act from the third department of
the government. The Supreme Court, however,
can give no decision, save on a special case
brought before it. Such case could never be
made up by the President, save by a technical
violation of the doubtful law. For the purpose,
then, of defending his right through the courts of
law, and for this purpose alone, the preservation
of the constitution warrants the executive in trans-
gressing duly enacted legislation. " But," replied
the managers, *'the President, like any private
citizen, if he violates law, for whatever purpose,
does it at his peril. The peril in his case is im-
peachment. Hence Mr. Johnson is rightly pre-
sented." This the defence could not deny. If
the violation of the law were a high crime or mis-
demeanor, the House might bring the offender

TRIAL OF PRESIDENT JOHNSON 293

before the Senate for trial. But the gravamen
of the charge in that case would have to be not
the act only, but the motive of the President. If
it were proved that his intention was not merely
to secure a judicial decision on his alleged right,
but to inaugurate revolutionary resistance to Con-
gress, then conviction must follow. This view,
however, the managers rejected altogether, and
demanded that Mr. Johnson's motive, though with-
out doubt an impeachably bad one, must not at all
be considered. They called upon the Senate to
remove the officer who had deliberately violated
a solemn law. Nor did they heed the suggestion
that if this alleged solemn law was in conflict with
the constitution, it was no law at all.^

The vital principle of our constitution involved
in this question could not be brought to a direct
issue in the present case on account of a special
doubt that arose as to whether the leading pro-
vision of the Tenure-of-Office Act applied to Sec-
retary Stanton. At least two of the Republican
senators who voted for conviction on the other
articles, expressed their inability to resolve this
doubt in such a way as to sustain the charge that
the removal of the secretary had violated that
law.2 The first section of the act, after declaring
that every civil officer appointed with the consent

1 Cf. Bingham's argument, Trial, p. 387.

2 Sherman and Howe; see their opinions in Trial, pp. 449 and
496.

294 THE IMPEACHMENT AND

of the Senate should be entitled to hold his office
until a successor should have been in like manner
appointed, contained this proviso :

Provided^ That the secretaries of state, of the treasury-,
of war, of the navy, and of the interior, the postmaster-
general, and the attorney-general shall hold their offices
respectively for and during the term of the President by
whom they may have been appointed, and for one month
thereafter, subject to removal by and with the advice apd
consent of the Senate. \

It was part of the bill's history that the subject
of the cabinet officers had been a point of conten-
tion between the Senate and the House. By de-
cisive votes the former had insisted on excepting
these officials entirely from the operation of the
law. The House, on the other hand, had desired
to avoid all concession to the cabinet idea, and to
make no distinction between the President's advis-
ers and other civil officers. A conference com-
mittee had reported the section as it stood, with
the disputed topic thrown into the proviso by way
of compromise. The question had been raised at
the time whether the proviso iixed Johnson's sec-
retaries in their positions irrespective of his wish,
and Sherman, a Senate conferee, had distinctly de-
nied that such was the case.^ It was Mr. Johnson's
belief, moreover, that when considering the bill in
cabinet meeting, he had been supported by all his

1 Globe, 2d sess., 39th Cong., p. 15 16.

TRIAL OF PRESIDENT JOHNSON 295

advisers, including Stanton himself, in the opinion
that the law did not affect their tenure.^ These
facts, however, could not be conclusive of the con-
struction of the law, and the question had to be
argued from the terms of the statute.

It was declared that the secretary of war should
hold his office for and during the term of the
President by whom he was appointed. Mr. Stan-
ton's commission bore the date January 11, 1862,
and was signed by President Lincoln. In common
with Messrs. Seward, McCullough and Welles,
he had continued without specific reappointment
either by Lincoln, after his second inauguration,
or by Johnson. The question presented, then, was
whether they were still serving in the term of
President Lincoln. A vast amount of metaphysi-
cal subtlety was expended on the solution of this
problem so far as it involved the definition of the
word *'term." It was pretty generally agreed, in
the first place, that a Presidential term ended and
a new one began on the fourth day of March, in
every fourth year after 1789. The Vice-President
is chosen for the same term as the President.
Was Johnson then serving in his own term or in
that of Lincoln } As far as the mere time was
concerned, apparently in both. But the crucial
query was as to whether the words "term of the
President by whom appointed" referred to the
time for which a man was chosen President, or

1 Johnson's message to the Senate, Dec. 12, 1867; Trial, p. 20.

296 THE IMPEACHMENT AND

the time during which he actually filled the office.
In other words, whether the essence of the expres-
sion which fixed the cabinet's term, was in the
office of President, or in the man who filled it?
If the former, Stanton was entitled to hold on till
April 5, 1869; if the latter, he had no claim to his
office.^

The best method of determining the disputed
point was to look at the intendment of the proviso.
The managers held that it was designed merely to
enable each President, on assuming office, to get
rid of his predecessor's cabinet. If a President
was re-elected, as Lincoln had been, the tenure of
his cabinet officers was not interrupted. **Term
of the President," they argued, meant the whole
time during which the same individual was as-
signed to the office. Stanton, therefore, having
been appointed by Lincoln, was entitled to his
office for the whole time for which Lincoln was
chosen, and one month more. Johnson had no
term as President. He merely exercised the duties
of President in the term for which he was chosen
Vice-President. As against this argument of the
managers the defence held that the intent of the
act was to give each President a chance to choose
once his constitutional advisers. Johnson was

1 For a bit of verbal analysis that would do credit to a mediaeval
dialectician, see Edmunds' opinion, Trial, p. 426. The learned
senator deduces his conclusions chiefly from a construction put
upon the word " of."

TRIAL OF PRESIDENT JOHNSON 297

President. It was now too late to hold that he
was only acting-President ; Tyler's course had set-
tled that point. Such being the case, Stanton's
term had expired in May, 1865; and the office
of secretary of war never having been filled by
Johnson, he had the right under the plain meaning
of the law to get rid of his predecessor's appointee
and secure one to his liking.

This proviso was in fact one of those cases so
common in the history of our legislation, where,
upon vital disagreement between the houses, a
conference committee has finally reported a com-
promise that can be construed to satisfy either of
the conflicting interests. It is sufficient to observe
here that the doubts raised about this clause pre-
vented a direct issue on the much more important
constitutional question. Even those who held
Johnson guilty in other respects, could scarcely
vote to remove him from office for the mere adop-
tion of a possible interpretation of so uncertain an
expression as that of the proviso.

After the charge of unlawful removal, and the
accusations incidental thereto, the next high mis-
demeanor alleged against the President was the
authorization given to Thomas to act as secretary
of war ad interim. This was assailed as a viola-
tion of the constitution and of the laws and also as
done without authority of law.

The practice of temporary appointments to
offices made vacant by unexpected contingencies

298 THE IMPEACHMENT AND

was a long-established one, and had been made the
subject of regulation by law on three different occa-
sions prior to the passage of the Tenure-of-Office
Act. It is not important to follow the discussions
on the legal questions involved in the interpreta-
tion of these laws.^ The only constitutional ques-
tion that arose was, whether the executive had
power to evade the advisory right of the Senate
by repeated ad i7iterim appointments. Mr. John-
son did not claim that power. His designation of
Thomas was, indeed, without limitation as to time ;
but the nomination of Thomas Ewing, Sr., of Ohio,
as secretary of war, had been sent in to the Sen-
ate on the next day after Stanton's removal. The
intention to evade the constitutional requirement

1 The whole case from the President's standpoint, both as to the
law and the practice, is summed up in a message of Buchanan to
the Senate, of January 15, 1861. It was in reply to a request for
information in regard to the appointment of an ad interim secre-
tary of war in place of Floyd, resigned. The message was accom-
panied by a list of appointments showing the practice in the matter.
This whole document was put in evidence by counsel for Mr. John-
son. Trial, p. 191. Subsequently to the action of Mr. Buchanan
a new law had been enacted in reference to the matter, and the
main point in discussion was whether this later act repealed the
previous legislation. See 12 Statutes at Large, p. 656. It was
here enacted that in case of death, resignation, absence from the
seat of government, or sickness, of certain officers, including heads
of departments, the President might authorize any other corre-
sponding officer of either of the departments to perform the duties
of the office, but for not more than six months. The defence
held that this did not apply to vacancies caused by removal. See
also I Statutes at Large, p. 415.

TRIAL OF PRESIDENT JOHNSON 299

was thus made very doubtful, to say the least. A
point strongly pressed by the managers was that
the President ought not to be permitted to make
ad interim appointments while the Senate was in
session, to fill vacancies created by his own action.
The records reveal few precedents of this sort, and
it is undeniably a convenient path to usurpation.
The laws regulating ad interim appointments say
nothing as to whether or not the Senate may be
in session at the time the vacancy occurs ; but in
specifying the causes by which temporary vacan-
cies are produced, reference is made only to death,
resignation, absence from the seat of government,
or sickness — that is, to contingencies not under
the control of the President; and by act of 1863,
the ad interim appointment is limited to a period
of six months. It is obvious that these limitations
are well founded, and that the spirit of the legisla-
tion, as well as of the constitution, is opposed to
Mr. Johnson's claim that the power of removal
included the power of indefinite suspension.

V

The trial proper was terminated, with Manager
Bingham's argument, on the 6th of May. It had
become evident by that time that the legal case of
the prosecution had not the strength it was at first
supposed to have. Serious indications of disaffec-
tion had appeared in the Republican ranks. The

300 THE IMPEACHMENT AND

radical majority determined to pass over the doubt-
ful charges and get a vote first on those which
were most likely to be successful. Careful con-
sideration convinced them that the last article in
order, the eleventh, promised a result the most sat-
isfactory to the prosecution. As has been stated
above, the gravamen of the charge in this article
was an attempt to defeat the execution of the
Tenure-of-Office Act. But the essence of the
attempt was alleged to consist in either the re-
moval of Stanton or the appointment of Thomas,
or in both together. The article, moreover, was
so framed as to allege the President's opposition
to military reconstruction as incidental to the
attempt charged. Such an article might reason-
ably be expected to secure the greatest vote for
conviction. It was therefore brought up for ac-
tion first. Amid the most intense excitement the
vote was taken May i6th. The result was: guilty,
35; not guilty, 19. Seven regular Republicans^
stood with the twelve opposition senators for ac-
quittal. The opinions filed by these seven leave no
room for doubt that the danger which threatened
the balance of the constitutional system was the
motive which most largely influenced their verdict.

Once set the example [said Trumbull] of impeaching a
President for what, when the excitement of the hour shall

1 These Republicans were Fessenden, Fowler, Grimes, Hender-
son, Ross, Trumbull and Van Winkle.

TRIAL OF PRESIDENT JOHNSON 301

have subsided, will be regarded as insufficient causes . . .
and no future President will be safe who happens to differ
with a majority of the House and two thirds of the Senate on
any measure deemed by them important, particularly if of a
political character. Blinded by partisan zeal, with such an
example before them, they will not scruple to remove out of
the way any obstacle to the accomplishment of their pur-
poses, and what then becomes of the checks and balances
of the constitution, so carefully devised, and so vital to its
perpetuity ? ^

The radicals were greatly chagrined at this ver-
dict, especially as they had come within a single
vote of success in their purpose. A recess of ten
days was taken, during which vigorous but not
very hopeful efforts were made to overcome the
scruples of the Republican dissidents. The second
and third articles, concerning the appointment of
Thomas, were the only ones left that gave the
slightest hope of success. The legal case on
these, especially the latter, was considered to be
very strong. On the 26th of May the vote was
taken, but with the same result as before. It was
clear that the plan to oust the President had failed.

After the announcement of this vote, the Senate,
sitting as a court of impeachment for the trial of
Andrew Johnson, adjourned sine die. On the same
day, Mr. Stanton addressed to the President a note
in these terms :

Sir : — The resolution of the Senate of the United States,
of the 2 1 St of February last, declaring that the President '' has
1 Trial, p. 420.

302 THE IMPEACHMENT AND

no power to remove the secretary of war and designate any
other officer to perform the duties of that office ad interim^"^
having this day failed to be supported by two thirds of the
senators present and voting on the articles of impeachment
preferred against you by the House of Representatives, I have
relinquished charge of the War Department, and have left the
same, and the books, archives, papers and property, hereto-
fore in my custody as secretary of war, in care of Brevet
Major-General Townsend, the senior assistant adjutant-
general, subject to your direction.

(Signed) Edwin M. Stanton,

Secretary of War.

The President having meanwhile nominated
General Schofield as secretary of war, "in place
of Edwin M. Stanton, removed," the Senate, on
May 29th, passed a resolution confirming the
appointment, but preceded by a preamble declar-
ing that Stanton had not been legally removed
from his office, but had " relinquished his place
as . secretary of war for causes stated in his note
to the President." With this final shot, the crisis
of the conflict between Johnson and the radical
Congress ended. The radicals retired, and the
President was left in possession of the field.

As a mere matter of partisan politics, it is now
generally conceded that the impeachment was a
mistake. In the view of constitutional history,
the impeachment must be considered as marking
the utmost limit of the sharp reaction which fol-
lowed the sudden and enormous concentration of
power in the executive department during the

TRIAL OF PRESIDENT JOHNSON 303

Stress of arms. Since 1868 the progress toward
the normal equilibrium of forces has been con-
stant. With the accession of President Grant, in
1869, the most offensive clauses of the Tenure-of-
Office Act were repealed. Twenty years later, the
whole act, having become practically obsolete, was
struck from the statute-book almost without oppo-
sition. The single vote by which Andrew John-
son escaped conviction marks the narrow margin ^
by which the Presidential element in our system
escaped destruction. It is highly improbable that
circumstances so favorable to the removal of a
President on political grounds will again arise.
For better or for worse, the co-ordinate position
of the executive has become a permanent feature
of the constitution.

'^ The margin was not in fact quite so narrow as it appeared.
Two senators who actually voted "guilty" had pledged themselves
to vote " not guilty " in case such vote should be indispensable to
acquittal.

ARE THE STATES EQUAL UNDER THE
CONSTITUTION ?

In respect to the question of ultimate political
supremacy under the constitution of the United
States, the result of the Civil War gave an answer
that was decisive. No argument based in any
particular upon the principle of state-sovereignty
can ever again be tolerated in the arena of con-
stitutional debate. Our fundamental law must
always henceforth be viewed as the expression of
a nation's will. There is abundant room for dif-
ference of opinion as to the extent of the authority
that is entrusted to the government by the people;
there is food for endless controversy in the distri-
bution of powers among the many governmental
organizations, and among the various departments
of each ; but the right of any particular community
to maintain its own idea on either of these points
against the contrary assertion of the organ of the
whole people will never again call for recognition.
The conviction in the South that the state had
absolute rights as against the nation was well
known to be the basis of the secession movement
and the source of the country's woes. PubHc

304

ARE THE STATES EQUAL? 305

opinion in the victorious section demanded as
the first fruit of its triumph the annihilation of
every principle upon which the pernicious dogma
could possibly find support. Hence the sweep-
ing invasion by national legislation of the region
hitherto deemed sacred to state rights. Hence the
culminating doctrine that resistance to the will of
the nation instantly divests the state of all rights
whatever.

In the circumstances of the time it was a very
easy matter to legislate away what had been
claimed to be rights of the states. To provide for
the permanence of the legislation required care.
The last three amendments to the constitution,
especially the fourteenth, make a number of ex-
tremely important powers irrecoverable. Besides
these, the precedents of the mere legislation
oppose a substantial barrier to any future demon-
stration against the central stronghold. Among
the less prominent features of this barrier was the
series of acts which has suggested the subject of
this paper. Between the outbreak of the war and
the close of the reconstruction two new states
were admitted to the Union, and eleven of the old
states were restored to the constitutional relations
which were broken off by secession. In both the
acts admitting the new states and those restoring
the old, the operation of the laws was made con-
tingent upon the acceptance by the states of cer-
tain fundamental conditions. The mere fact of

306 ARE THE STATES EQUAL

conditions in an act of admission was no novelty ;
the content, however, of those under consideration
was in a large measure unprecedented, and was
wholly significant of the times. In the discussion
of the matter, the ancient dogma that all the states
of the Union are constitutionally endowed with
precisely equal powers was subjected to a careful
examination in the light of the modern conceptions
of our system. Under the influence of the state-
sovereignty theory, the principle had been gener-
ally considered axiomatic. But now, like so many
other monuments of the ante-bellicm system, it
was boldly attacked and was threatened with utter
demolition.

It is the purpose of this paper to determine not
so much whether the states ought to be equal in
powers, but whether, as a matter of fact, they are
equal, under the authoritative construction up to
date of the constitution and the laws. The method
adopted will be, first, to examine historically the pro-
cess of admitting states to the Union, and, second,
to discuss the bearing of the process upon the rela-
tions of the states to the general government.

The germ of the doctrine of equal states and
the model for all the pertinent provisions of ante-
bellum legislation in admitting new members to
the Union are found in the various acts by which

UNDER THE CONSTITUTION? 307

the United States, under the Articles of Confed-
eration, acquired dominion and established govern-
ment in the great region between the Alleghanies
and the Mississippi. In 1784 Virginia executed
the deed of cession by which all her claim to
lands northwest of the Ohio River was trans-
ferred to the United States.^ The cession, how-
ever, was conditional. It was stipulated that the
ceded region should be laid out and formed into
states, and that the states so formed should be dis-
tinct republican states, and should be "admitted as
members of the Federal Union, having the same
rights of sovereignty, freedom and independence
as the other states." Other stipulations also were
inserted, looking to the security of certain land-
grants previously made by Virginia, and all were
formally accepted by the Congress. The latter
body had indeed willingly offered the pledge to
form the territory into equal states as an induce-
ment to the states to make the much desired
cessions.2 It thus appears that the principle of
equality between the original and the newer states
finds its first expression as an indispensable pre-
requisite to an enormous increase of the central
government's dignity and power.

Shortly after the cession of the territory north-
west of the Ohio, the Congress provided by reso-
lution for its government. This act of 1784 was

1 Poore, Federal and State Constitutions, I, 427-8.

2 Story, Commentaries, sec. 131 6.

308 ARE THE STATES EQUAL

the immediate predecessor of the more famous
ordinance passed three years later. Its provi-
sions are of interest as embodying certain forms
of compact which have appeared in almost every
act of admission up to the present day. After
a description of the process by which the new
states to be formed in the territory should be-
come full-fledged members of the Union, a series
of clauses was recited which were to stand as a
compact between the United States and each of
the new states, unalterable except by common
consent. These clauses provided that the states
should forever remain a part of the Confederacy,
that they should in no case interfere with the dis-
posal of the soil by Congress, that they should
impose no tax upon lands owned by the United
States, that their governments should be republi-
can, and that the lands of non-resident proprietors
should not be taxed higher than those of resi-
dents before the state's delegates should be ad-
mitted to vote in Congress.^ When this law was
superseded by the Ordinance of 1787, the same
provisions were included in the " articles of com-
pact between the original states and the people
and states in the said territory." They consti-
tuted, however, only a small proportion of the
terms in the new instrument. Among the addi-
tional clauses of interest to our investigation were
these : no person shall be molested on account of

^ Curtis, History of the Constitution, vol. i, p. 297.

UNDER THE CONSTITUTION?

309

his mode of worship or reHgious sentiments ;
navigable rivers must remain free pubUc high-
ways ; whenever any of the states to be formed
shall have 60,000 inhabitants, " such state shall be
admitted by its delegates into the Congress of the
United States on an equal footing with the origi-
nal states in all respects whatever" ;^ and finally,
the celebrated anti-slavery clause which had been
voted down in 1784.2

The Ordinance of 1787 contains substantially
every provision that is to be found, by way of
compact or fundamental condition, in any act of
admission prior to the Civil War. On it were
based the forms of cession and government by
which the lands west of Georgia and North Caro-
lina became territories of the United States.
There was room for serious doubt as to the power
of the old Congress to guarantee the admission of
new states on equal terms with the old. Madison
regarded the promise in the Ordinance of 1787 as
wholly unauthorized by the Articles of Confedera-
tion.^ But a new condition of affairs was brought
about by the adoption of the constitution of 1787,
and the re-enactment of the territorial ordinance
by the new Congress in 1789. There was no

1 Poore, Constitutions, I, 432.

2 " There shall be neither slavery nor involuntary servitude in
the said territory, otherwise than in the punishment of crimes,
whereof the party shall have been duly convicted."

« Federalist, No. 38, end.

310 ARE THE STATES EQUAL

doubt whatever of the power of Congress under
the constitution to admit states on an equal foot-
ing with the original thirteen. The uncertainty
now was as to whether the new-comers could
enter on any other terms. The debates in the
convention revealed considerable soreness among
many politicians of the Northern and Eastern
states at the prospect of the overwhelming weight
of the South and West when the new states
should be well settled. Manifestations of this
feeling were frequent during the long struggle
over the adjustment of representation.^ Gouver-
neur Morris was the most outspoken in hostility
to the equality of the new members of the Union.
Having failed in an effort to discriminate against
them in the matter of representation, he was more
successful when the clause in reference to the
admission of new states came up for discussion.
As reported from the committee of detail, this
clause provided that such states should be ad-
mitted by a two-thirds vote of Congress. Only in
reference to those arising within the boundaries
of any of the old states was it declared that they
should be admitted on the same terms with the
original thirteen. All others were, by implica-
tion, subject to the discretion of the legislature.
Morris, however, objected to limiting this discre-
tion in any way, and on his motion the distinction
was stricken out and the clause was remodelled

1 Bancroft, History of the Constitution, II, pp. 84, 85, et passim.

UNDER THE CONSTITUTION?

311

in its present form: "New states may be ad-
mitted by Congress into this Union." i So far
as the intention of this clause is concerned, there-
fore, there seems to be no reason to assert that
the constitution forbids inequality. Let us now
review the practice and precedents in the further
growth of the nation.

Vermont was the first new state to enter the
Union. Her admission had been contemplated
by the framers of the constitution, and the final
form of the clause in reference to new states
within the jurisdiction of the old had been deter-
mined with a view to her quarrel with New York.^
Congress' act of admission consisted of a simple
statement that Vermont should be a member of
the Union. The same simplicity characterized
the entrance of Kentucky. This state originally
formed the western half of Virginia. Virginia
agreed to the separation of the territory on cer-
tain conditions, which were to be accepted by
the latter and by the United States. The act
of admission simply recognized the new state.
Tennessee was the next to enter the Union. The
act of cession by North Carolina contained about
the same stipulations as the instrument by which
the Northwest Territory was granted by Virginia.
The act of admission presented for the first time
in a Congressional enactment the formula: "On

1 Elliot's Debates (Lippincott, 1876), V, p. 493.

2 Curtis, Hist, of the Const., vol. ii, p. 353.

312 ARE THE STATES EQUAL

an equal footing with the original states in all re-
spects whatever."^ This clause occurs in either
the enabling act or the act of admission of every
state subsequently admitted.

The first state formed from the Northwest Ter-
ritory was Ohio, in 1802. She was also the first
to pass from the territorial form under the direc-
tion of an enabling act. This act has been the
model for all succeeding legislation of the kind,
and in it may be found provisions that have since
furnished a basis for the claim of Congress' right
to exact conditions of an applicant for admission.
By it the inhabitants of the territory included in
certain designated boundaries were authorized to
form a constitution which must be republican and
not repugnant to the Ordinance of 1787. These
two requirements were designed to fulfil the duty
of the United States, first to the constitution, in
guaranteeing a republican form of government, and
second, to Virginia, in carrying out the terms of
the act of cession, as embodied in the Ordinance
of 1787. The enabling act then offered to the
state's convention, for its free acceptance or re-
jection, three propositions : first, to grant to the
state certain lands for the support of schools ;
second, to grant to the state the salt-springs and
sufficient adjacent land to work them ; and third,
to apply to the building of roads and canals for
the benefit of the state five per cent of the pro-

1 Poore, Constitutions, II, 1677.

UNDER THE CONSTITUTION? 313

ceeds of public lands sold within the state. These
propositions, if accepted, were to be binding upon
the United States, provided that the acceptance
should be accompanied by an ordinance, irrevo-
cable without the consent of the United States,
declaring that lands sold by Congress should be
exempt from taxation for a period of five years
after the sale. The convention accepted the prop-
ositions and the required ordinance was duly
enacted.

In 181 2, Louisiana became a state. The ena-
bling act in this case laid down a large number of
requirements to which the constitution of the new
state must conform. These were based mainly
on the Ordinance of 1787, and were obviously
designed to counteract any foreign influences that
might have taken root while the territory was
under European dominion. No terms were offered
to Louisiana as to Ohio, But an irrevocable ordi-
nance was demanded, which should bind the state
to substantially the same stipulations that were
contained in the Ordinance of 1787 in respect to
unappropriated lands and navigable waters, as well
as to the five-year exemption from taxation of
public lands sold by the United States. There is
no equivalent whatever offered in return for these
demands, and the peremptory character of Con-
gress' dealing with the state is revealed still more
distinctly in the act of admission. For some reason,
the irrevocable ordinance which the Louisiana con-

314 ^^E THE STATES EQUAL

vention adopted omitted the declaration that the
Mississippi and other navigable rivers should be free
from tax or toll. Congress, therefore, made that
declaration a proviso of the state's admission, and
clinched it with these words : " The above condi-
tion, and also all other the terms and conditions
contained in the third section of [the enabling act]
shall be considered, deemed and taken fundamental
conditions and terms upon which the said state is
incorporated in the Union." ^ Such language might
be thought fatal to the claim of equality among the
states, were it not that, in the same section, the act
declares Louisiana admitted "on an equal footing
with the original states in all respects whatever."
The legislator could have joined these two provi-
sions only on the understanding that all the origi-
nal states labored under the same restrictions that
were imposed upon Louisiana.

No new principle appeared in the admission of
the next five states. The familiar irrevocable or-
dinance was a feature of each case, except that of
Maine. Indiana, Illinois and Alabama received an
equivalent for their concessions, like Ohio ; Mis-
sissippi followed Louisiana in granting the ordi-
nance absolutely. Maine came in with the consent
of Massachusetts, and with no provision further
than that of equality with the original states.

The admission of Missouri suggests immedi-
ately the ominous struggle over slavery restriction.

1 Poore, Constitutions, p. 710.

UNDER THE CONSTITUTION?

315

Tallmadge's famous motion ^ was to impose as an
absolute condition upon Missouri's existence the
identical proposition which had, in the states formed
in the Northwest Territory, assumed the form of a
compact. Without stopping at this point to ex-
amine the line of argument adopted by the friends
of slavery, it is sufficient to remark that the strenu-
ous denial of any power in Congress to withhold
from a new state a right possessed by the original
members of the Union was the position which
proved most troublesome to the restrictionists.
Only the boldest spirits ventured to combat the
proposition that the nature of the Union demanded
perfect equality among its members. The great
struggle occurred over the enabling act. Outside
of the clause which embodied the celebrated com-
promise, this act was substantially the same as
its immediate predecessors. The resolution ad-
mitting the state, however, presented another case
of absolute condition. It declared that

Missouri shall be admitted into this Union on an equal footing
■with the original states in all respects whatever, upon the
fundamental condition, that the fourth clause of the 26th sec-
tion of the third article of the constitution submitted on the

1 To amend the bill for admission by adding this clause : " Pro-
vided, That the further introduction of slavery or involuntary servi-
tude be prohibited, except for the punishment of crimes, whereof
the party shall have been duly convicted; and that all children
born within the said state, after the admission thereof to the
Union, shall be free at the age of twenty-five years."

3l6 ARE THE STATES EQUAL

part of said state to Congress, shall never be construed to
authorize the passage of any law

that shall conflict, in short, with the inter-state
rights of citizens as provided for by the constitu-
tion of the United States.^ And the assent of
the legislature of the state to this condition was
demanded and was duly given.

Arkansas organized a state government without
waiting for an enabling act. Congress admitted
her, upon the express condition that the people of
the state should not interfere with the primary dis-
posal of the public lands, nor tax them while United
States property. This proceeding, however, was
evidently unsatisfactory ; for a supplementary act
was passed in which these same conditions were
made, with others, the equivalents for the custom-
ary land grants for education and other public pur-
poses, and were put in the form of an irrevocable
ordinance.^ The difficulty between Ohio and
Michigan about their dividing boundary ^ accounts
for the express condition in the act admitting the
latter that her boundaries shall be as described in
the act. Iowa was admitted on the fundamental
condition that the assent of the township electors
should be given to the act of admission. From
this time (1846) to the admission of Nevada, in 1864,

1 3 Statutes at Large, 645.

2 Poore, Constitutions, I, 118.

* Michigan, by Judge Cooley, in American Commonwealths
series, p. 214 <•/ seq.

UNDER THE CONSTITUTION? 317

the legislation of Congress reveals no novelty
pertinent to our subject. Every clause of both
enabling acts and acts of admission is a copy
of some one of those that have been noticed.

Nevada entered the Union to the accompa-
niment of Grant's guns on the Potomac and
Sherman's on the Chattahoochee. It would be
strange if no mark of those fateful times appeared
impressed upon her. In the enabling act, we
discover that her constitution was required to
harmonize not only with the constitution of the
United States, but also with the principles of the
Declaration of Independence. Further, the con-
vention was required to provide by ordinance,
irrevocable without the consent of the United
States and the people of the state : first, that
there should be neither slavery nor involuntary
servitude in the state ; second, that there should
be perfect toleration of religious sentiment ;
and only third, that the public lands should
be secured to the United States. These first
two provisions were not absolutely unprece-
dented. Both were contained in the Ordinance
of 1787, and had, therefore, become part of the
fundamental law of five states. But the special
mention of them in an enabling act was signifi-
cant.

It was left for Nebraska, in 1867, to become a
state under an entirely novel restriction. The act
of admission was to take effect

3l8 ARE THE STATES EQUAL

upon the fundamental condition that within the State of
Nebraska there shall be no denial of the elective franchise
or of any other right to any person because of race or color,
excepting Indians not taxed, and upon the further funda-
mental condition that the legislature of said state, by a
solemn public act, shall declare the assent of said state to
said fundamental condition.

Colorado (1876) had the provision for religious
tolerance thrown into the irrevocable ordinance
by which national control of the public lands was
established. The grants of lands for schools,
public buildings, etc., were in her case, as in that
of Nevada and Nebraska, made absolute benefac-
tions. The two Dakotas, Montana and Washing-
ton (1889) and Utah (1895) came in on much the
same terms. ^ In their case, however, the irrevo-
cable ordinance that was required of each included
two new provisions : first, that public debts con-
tracted under the territorial form should be
assumed by the state ; and second, that a public
school system should be established, open to all
children of the state and free from sectarian
control. And in the act relating to Utah the
peculiar circumstances of her history were sug-
gested by the proviso, attached to the require-
ment of religious toleration, that ''polygamous, or
plural, marriages are forever prohibited." Like
the institution which made it necessary, this pro-
vision is unique in our history. Idaho and Wyo-

1 25 Statutes at Large, 676 ; 28 Ibid., 107.

UNDER THE CONSTITUTION? 319

ming (1890) escaped all conditions, whether in form
or in substance.^

This completes the review of the legislation
upon the addition of new states. It remains now
to consider the case of the so-called rebel states,
which were declared by Congress to have for-
feited, by the attempted secession, all rights
guaranteed by the constitution to members of
the Union. By act of March 2, 1867, Congress
announced the circumstances under which the
forfeited rights would be restored. Later acts
provided for carrying out the proposed plan of
reconstruction. Tennessee had previously been
admitted, upon conforming voluntarily to the gen-
eral lines of Congress' desire. Of the other ten,
all but three were finally admitted to representa-
tion in Congress, as states of the Union, upon the
fundamental condition that their constitutions
should never be so amended as to deprive any
citizen or class of citizens of the right to vote,
except as a punishment for crime. Virginia,
Mississippi and Texas were delayed in fulfilling
the requirements of Congress ; as a consequence
the ardor of the advocates of conditions rose in the
meantime to such an extent that two additional
limitations on the equality of those states were
imposed ; the first forbade any law excluding
negroes from the right to hold office ; the second
forbade any amendment of the state constitution

1 26 Statutes at Large, 215, 222.

320 ARE THE STATES EQUAL

that should deprive negroes of equal school privi-
leges with the whites.^

From this survey of the practice since the
United States became an independent nation, one
fact stands out very distinctly, and that is, that
Congress, whether authorized by the constitution
or not, has, in the exercise of its power to admit
new states, imposed conditions on the applicants,
and that too, both in substance and in express
terms. It is equally undeniable that, if these
conditions are valid, and if by virtue of them
rights are withheld that are enjoyed by the origi-
nal states, the ancient dogma that this is a union
of equal states is without foundation in constitu-
tional law. The first question then that must
command our attention is this : Are the laws of
Congress imposing conditions upon new states, in
accordance with the constitution of the United
States ?

II

The conditions that we have found in our ex-
amination may be grouped in respect to their form
in three classes as follows : first, compacts, which,
by unconstrained agreement, limit not only the
states but also the United States in specified par-
ticulars ; second, conditions upon admission which
are absolute in form, but which are explicitly

1 McPherson, History of the Reconstruction, p. 573 et seq. Cf.
ante, p. 235 et seq.

UNDER THE CONSTITUTION? 32 1

conditions precedent, and hence exhaust their
force at the moment the admission is perfected
— as for example, that which required the ante-
cedent consent of the township electors in Iowa ;
and third, absolute conditions whose force is ob-
viously intended to be permanent, and forever to
restrict the power of the state. The best example
of this last class is the prohibition of the recon-
structed states ever to amend their constitutions
in certain respects.

The subjects in respect to which Congress has
enacted permanent limitations may be grouped
under seven heads : first, public lands ; second, navi-
gable waters ; third, inter-state rights of United
States citizens ; fourth, the principles of civil and
religious liberty ; fifth, public debts of the states ;
sixth, the public school system ; and seventh,
equality in political and civil rights.

Let us now ascertain upon what grants of power
in the constitution the right of Congress rests to
legislate in each of these forms and upon each of
these subjects. And first, is Congress authorized
to make a compact with a state of the Union,
either existing or in embryo } The theory of our
system is that the central government is one of
strictly limited powers. For the definition of such
powers as it has, only the constitution is to be
consulted. By that instrument Congress is estab-
lished as a law-making body. Especial care is
taken to prevent the effectiveness of any action

Y

322 ARE THE STATES EQUAL

of the two houses under any other form than that
specifically laid down in the constitution. Every
order, resolution and vote must be in fact a law.^
In the same way, a compact to which Congress is
a party can have no extraordinary force on account
of its special form. It is nothing more or less
than a law. The agreement by the state to its
terms adds nothing to its efficacy. Its validity
can be tested only by the constitution. If Con-
gress is authorized to enact that a certain regula-
tion shall take effect upon the performance of some
act by a certain community, it is authorized to en-
force the regulation without regard to such act.
A compact must be regarded then, so far as Con-
gress is concerned, simply as a law. The question
as to Congress' right to enter into a compact with
a state becomes merely a question as to the con-
stitutional power of the national legislature to
enact a law involving the same principles. Our
examination of the validity of the compacts which
are supposed to create inequalities among the
states must therefore deal with the substance
rather than the form. We must ascertain under
what grant of power in the constitution the various
terms of the acts were enacted.

Conditions precedent to admission must be
treated on the same principle. The constitution
itself, however, renders discussion of these prac-
tically of no importance to our subject. Any act

1 Constitution, art. i, sec. 7.

UNDER THE CONSTITUTION? 323

of Congress which affects United States territory
only before its assumption of the state form may be
justified under the plenary power granted by article
four, section three. ^ The violent and protracted
controversy as to the construction of this clause in
connection with the slavery question may be con-
sidered to have been settled by the Civil War.
In spite of the contrary opinion in the Dred Scott
Case, the power of Congress to make rules and
regulations concerning the territories will be gen-
erally conceded now to be unlimited save by the
express prohibitions of the constitution. Condi-
tions, therefore, which prescribe certain acts by
either the people or the government of a territory
as preliminary to admission as a state, are wholly
within the power of the national legislature.

An entirely different principle is involved in the
matter of conditions subsequent, i.e., restrictions
imposed while the territorial form prevailed, but
intended to be of binding force after the assumption
of the state dignity. The solution of the problem
here is very similar to that in the case of compacts.
The condition is only a law of Congress and has
no greater force than any other law. The validity
of the law depends on the constitutional authority
for it ; or, in short, upon the substance rather than
the form. It is held by some, however, that by

1 "The Congress shall have power to dispose of, and make all
needful rules and regulations respecting, the territory or other prop-
erty belonging to the United States."

324 ^RE THE STATES EQUAL

the wording of the constitution, Congress is given
unlimited control over the substance of the admit-
ting act. " New states may be admitted by Con-
gress into this Union," is the form the clause
takes. It has been shown above that the probable
intention of Gouverneur Morris in thus phrasing it
was to leave room for an implication of power in
Congress to impose conditions upon new states.
The probability of such a purpose becomes cer-
tainty in the light of a letter written by Morris in
1803. "I always thought," he says, "when we
should acquire Canada \sic\ and Louisiana, it
would be proper to govern them as provinces and
allow them no voice in our counsels. In wording
the third section of the fourth article, I went so
far as circumstances would permit to establish the
exclusion." He significantly continues : " Candor
obliges me to add my belief that had it been more
pointedly expressed, a strong opposition would
have been made."^ At the time of Louisiana's
admission as a state, in 1811-12, the Federalists
made a violent resistance to the equality clause,
and Josiah Quincy went so far as to assert his
solemn conviction that the admission of new states
from acquired territory on equal terms with the
old, was sufficient ground for a dissolution of the
Union. The principle, however, was established,
and continued in practice down to the Civil War,

1 Quoted by Judge Campbell in the Dred Scott Case; 19
Howard, 507.

UNDER THE CONSTITUTION? 325

of not making the implication for which Morris so
craftily left room.

With the tide of loose construction that set in
with 1 86 1, the usage in this matter shared the fate
of so many others. While the doctrine of un-
limited Congressional discretion as to conditions
upon a state's admission cannot be said to be defi-
nitely established, yet it is beyond doubt that such
an idea finds support in a very respectable body of
constitutional lawyers. The argument of the sup-
porters of this theory is that Congress is the agent
of the nation in creating political corporations
called states. Through the constitution, the nation
has given Congress a discretion as to the powers it
may confer on such corporations, limited only by
the positive prohibitions of the fundamental law.
There is nothing in the constitution requiring that
the states shall be equal. The character of each
corporation is impressed upon it by the special act
by which it is admitted. No court can go behind
the provisions of such an act to apply any extra-
constitutional theory that all states have equal
rights. In respect to such powers and duties as
are positively ascribed to the states by the consti-
tution, there is, of course, equality. Every state is
entitled to an equal representation in the Senate,
and to a proportionate number of members in the
House of Representatives. Every state, whether
new or old, is equally entitled to the guarantee of
a republican form of government. But beyond

326 ARE THE STATES EQUAL

such clearly defined rights, Congress may deter-
mine as it pleases the degree of restriction which
it deems best for any particular community.^

In opposition to this view, the older theory main-
tains that the equality of rights in the states is
distinctly embodied in the constitution. Even if
the above stated construction of the clause about
the admission of states were good, it must be modi-
fied by the amendments which have been added to
the original instrument. Article ten of these
amendments declares that "the powers not dele-
gated to the United States by the constitution,
nor prohibited by it to the states, are reserved
to the states respectively, or to the people." This
does not say "to the old states," or "to some of
the states," but "to the states"; and it would be
palpably erroneous to construe this expression to
refer to less than every state in the Union. But
if this is the case, any state can claim every right
that is not delegated to the United States or pro-
hibited to the states. In short, the instant a com-
munity becomes entitled to the name of state, it
has every power that is exercised by any other
community bearing that name. A court, in decid-
ing upon a state's right to exercise a given power,
must look not to the act of admission, but to the

1 See debates on the admission of Nebraska, Cong. Globe, 2d
sess., 39th Congress. The subject was most exhaustively debated,
also, in connection with the bills restoring the rebel states to repre-
sentation, in 1868-70.

UNDER THE CONSTITUTION? 327

constitution under which this act of admission was
passed. If the power in question is not delegated
to the United States by the constitution nor pro-
hibited by it to the states, it rightfully belongs to
the state, anything in the act of Congress to the
contrary notwithstanding. But without reference
to this amendment, the clause respecting admis-
sion, it is maintained, will not bear the construc-
tion sought to be put upon it. This clause does
not authorize Congress to create states, but to
admit them. The creation of the state is antece-
dent to the admission, and springs from the will of
the people inhabiting the territory. The enabling
act merely puts the stamp of the nation's approval
upon the expression of this will. This may be,
and in many cases has been, dispensed with. The
genius of our institutions does not recognize the
possibility of forever withholding from a commu-
nity desiring it, the privilege of local self-govern-
ment under the constitution.

It must be confessed that, with all the strength
of this theory, the derivation of the right to the
state form from the genius of our institutions, or,
as some have it, from the nature of things, is a
little unsatisfactory. The foundation is a trifle
too shadowy for the very substantial structure that
rests upon it.

No case has ever been decided by the Supreme
Court in such form as to settle definitely which
of these two conflicting: theories is correct. As

328 ARE THE STATES EQUAL

might be supposed, a very strong leaning towards
the latter is discernible in several opinions ren-
dered in the two decades immediately preceding
the war. It was found possible, however, in every
case, to decide the issue under some clause of the
constitution other than that referring to the ad-
mission of states. The substance rather than the
form of the admitting acts was considered. But
whichever of these theories may ultimately pre-
vail, the answer to the question we have set before
us — viz.y whether at the present time there is
any inequality among the states — must be sought
in the content of the supposed restrictions that
thus far have been enacted. Compacts have been
made with new states, by which those states re-
signed certain powers ; fundamental conditions have
been imposed, prohibiting the exercise of certain
powers. Whether or not Congress was authorized
to make the limitations, let us consider to what
extent such limitations discriminate against the
newer states.

Ill

We have already classified the restrictions that
have been enacted and have found the first promi-
nent subject to be the public lands of the United
States. Either in the form of a compact or by
way of fundamental condition, all but five of the
states admitted since the formation of the consti-

UNDER THE CONSTITUTION? 329

tution are to-day forbidden to tax lands which are
the property of the United States ; and in most
cases the exemption covers the lands for from
three to five years after their sale. The power of
taxation has always been held to be an incident of
sovereignty. Does this Hmitation upon the state's
taxing power, then, interfere with the sovereignty
which belongs to the state in respect to matters
not delegated to the United States by the consti-
tution ?

As to the property of the United States, it has
been settled that wherever it is situated it is above
the state's demand for tribute. In practice, the
national government regularly secures a cession
of jurisdiction by the state within whose limits
land is secured for a mint, post-office or other
necessary institution. This custom has tended to
obviate all controversy on this precise point. The
general question of a state's right to tax property
of the United States was discussed quite fully by
the Supreme Court in McCuUough vs. Maryland.
Here the state's lawyers contended that by the
constitution the taxing power of the state was
unlimited save as to imports and exports. ^ This
view was explicitly rejected by the court ; but a
positive opinion was not required upon more than
the single matter of the United States Bank.
This, it was decided, the states could not tax ; for

^ 4 Wheaton, p. 328 et passim. Cf. constitution, art, i, sec. 10,
Cl. 2.

330 ARE THE STATES EQUAL

the bank was a constitutional means for carrying
into execution the powers vested in the general
government. Whether land was such a consti-
tutional means, was until recently an unsettled
question. Justice McLean is responsible for the
assertion that the government has paid taxes to
the old states on its lands. ^ Not till 1886 was the
problem authoritatively solved by the Supreme
Court. In Van Brocklin vs. Tennessee,^ Justice
Gray, in an opinion extraordinarily clear and ex-
haustive, concludes that neither the people nor the
legislature of Tennessee had power, by constitu-
tion or statute, to tax land so long as the title
remained in the United States. The basis of the
opinion was the principle of McCuUough vs. Mary-
land, and the further conclusion that

the United States do not and cannot hold property, as a
monarch may, for private or personal purposes. All the
property and revenues of the United States must be held and
applied, as all taxes, duties, imposts and excises must be laid
and collected, " to pay the debts and provide for the common
defense and general welfare of the United States."

This decision leaves no room for any claim that
the conditions prohibiting new states to tax gov-
ernment lands deprives them of any right enjoyed
by the old members of the Union.

The exemption of the first purchaser of public

1 U. S. vs. R. R. Bridge Co., 6 McLean, 531.

2 117 U. S. 151.

UNDER THE CONSTITUTION? 331

land from the taxing power of the state for a time
falls within a different category from the matter
just discussed. In by far the greater number of
instances, this exemption has been one of the con-
siderations in a compact between the United States
and the new state at its admission, by which, in
return for the promise of exemption, various tracts
of land are donated to the state. The transaction
differs in no respect from an ordinary fiscal con-
tract. The state foregoes the proceeds of the
tax on certain property and receives value in the
shape of certain other property. No political right
is resigned by the state, and the United States is
vested with no new political power. But it may
be said that the state, as a sovereign power in
respect to real estate within her boundaries, may
repudiate the bargain at will. How could a pur-
chaser obtain redress, if a tax were imposed before
the expiration of the specified time t Would the
United States courts undertake to restrain a state
from taxing its own citizens .'* There seems to be
good reason to believe that they would. In the
early case of Green vs. Biddle,^ the Supreme Court
decided that a compact by which Kentucky agreed
to apply the law of Virginia to certain land cases
could not be violated by the former without bring-
ing her in conflict with the constitutional provi-
sion in reference to impairing the obligation of
contracts. There is no reason why a compact with
1 8 Wheaton. i.

332 ARE THE STATES EQUAL

the United States should not be subject to the
same rule. But the compact in this case could
not, of course, be binding on the state if the other
party had exceeded its powers in making the
agreement. The United States can only con-
tract within its constitutional powers. Its power
in this case, however, may very fairly be derived
from the authority to dispose of the territory of
the nation.^ This same authority could also be
made to cover those cases in which the five-year
exemption is enacted not as a contract but as a
mere condition. Here there would be more room
for debate, but in view of the very liberal margin
of discretion which the court has recognized to
Congress in the choice of means for executing its
powers, it is not at all likely that this extra induce-
ment to purchasers would be adjudged beyond the
line.

In addition to this limitation of the taxing power
of the new states, we find in most acts of admis-
sion the provision that the respective states shall
disclaim title to the public lands, or shall not in-
terfere with the primary disposal thereof. That
such a provision is no real restriction does not
require demonstration. The land is the property
of the United States, and cannot be made more
so by any law of Congress. These formulas were
inserted in the early acts out of abundant caution,
and they are at the present day mere survivals.

1 Cf. dicta in Pollard's Lessee vs. Hagan, 3 Howard, p. 224.

UNDER THE CONSTITUTION? 333

A special case that falls under this same head is
that of Michigan's southern boundary. Michigan
claimed that she had, by the Ordinance of 1787,
an indefeasible right to enter as a state with the
boundaries described therein. These boundaries
would have included a strip of territory that had
been assigned to Ohio. Congress settled the hot
controversy which raged on the point by admitting
the new state on condition that she accepted a
boundary that included less than she demanded.
The question involved here seems to be rather the
construction of the Ordinance of 1787 than the
ultimate control over the lands, and the so-called
condition is only a regulation by which conflicting
constructions are compromised. ^

To sum up our conclusions in reference to the
clauses of the admission acts affecting public lands,
it appears that no power has been exercised therein
which could not be applied with the same effect to
the older states, — in short, that no inequality of
rights among the states exists by virtue of such
clauses.

The second subject which has been covered by
fundamental conditions is the navigable waters of
the new states. The right of Congress to make the
rule that they shall be free from toll is no longer
a debatable question. By the constitution Con-
gress is authorized to regulate commerce among
the several states. In the case of Pollard's Lessee

1 Cooley, Constitutional Limitations, 4th cd., p. 34.

334 ^^^ ^^^ STATES EQUAL

VS. Hagan,^ the Supreme Court was called upon to
construe the article of compact by which Alabama
resigned the right to impose any burden on the
navigation of her rivers. "This supposed com-
pact," the decision runs, "is nothing more than a
regulation of commerce, to that extent, among the
several states. "2 This same principle was reaffirmed
and enlarged upon in Withers vs. Buckley ct al.,^
some years later; and finally in Oilman vs. Phila-
delphia,* decided in 1865, the court clinched its
former judgments by the broad assertion that "the
power to regulate commerce comprehends the con-
trol for that purpose and to the extent necessary, of
all the navigable waters of the United States which
are accessible from a state other than those in which
they lie." In view of this record, it is idle to seek
for inequality among the states in this particular.
Congress controls the Hudson and the Susque-
hanna to precisely the same extent that it does
the Missouri and the Arkansas.

The third class of conditions — those relating to
the inter-state rights of citizens — includes, first,
the common clause that lands of non-resident citi-
zens of the United States shall not be taxed higher
than those of residents of the state ; and second,
the condition under which Missouri was admitted,
viz., that no law should be passed by the state by
which any citizen of any other state should be

1 3 Howard, 212. ^20 Howard, 93.

2 Jbid., p. 230. * 3 Wallace, 724.

UNDER THE CONSTITUTION? 335

excluded from the enjoyment of any privileges
and immunities to which such citizen was entitled
under the constitution of the United States.^ As
to this latter matter, no discussion is necessary to
show that there is no restriction placed upon Mis-
souri that does not rest upon every other state.
Missouri is forbidden to infringe, under color of
her constitution, a clear provision of the federal
constitution. But the prohibition would be just
as imperative in law without the act of Congress
as with it ; and Massachusetts has no more power
to deprive a citizen of another state of his consti-
tutional privileges and immunities than has Mis-
souri.

The same principle applies to one phase of the
taxation of non-residents. Taxes are a burden upon
citizens, and exemption from taxation is therefore
an immunity. Equal exemption of residents and
non-residents is accordingly secured by the con-
stitution, so far as concerns citizens of the several
states. This has been so determined by the Su-
preme Court in the case of Ward vs. Maryland.^
But the clause concerning the inter-state rights
of citizens does not protect against discrimination
such citizens of the United States as reside in the
territories or in the District of Columbia. Can the
land of such persons, then, be taxed by any state

1 " The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states." — Const., art. iv, sec. 2.

2 12 Wallace, 418.

336 ARE THE STATES EQUAL

higher than the land of resident citizens of the
state? If it can, the original states enjoy a right
which is denied to almost every other member of
the Union. The question, it must be confessed,
is never likely to become of any practical impor-
tance. If it ever does come up for consideration,
the Fourteenth Amendment will unquestionably be
relied upon to settle it. It is there declared that
''no state shall make or enforce any law which
shall abridge the privileges or immunities of citi-
zens of the United States." Whether an equal
rate of taxation with the other citizens of a state
in which his land is situated is a privilege or im-
munity of a citizen of the United States, is what
must be decided. In view of the narrow construc-
tion of the Fourteenth Amendment adopted by the
Supreme Court in the Slaughter House and suc-
ceeding cases, it is not likely that any power over
state taxation would be assumed under the pro-
hibition of the amendment ; and it seems certain
that in no other part of the constitution is author-
ity for the substance of the restriction under con-
sideration to be found. If then. Congressional
conditions upon the admission of states are ever
binding, there does exist in reference to the power
of taxation, an inequality among the states.

The fourth class of restrictions is that which
embraces various provisions designed to secure
the fundamental principles of civil and religious
liberty in the states. First, as to slavery. By

UNDER THE CONSTITUTION? 337

the Ordinance of 1787 slavery was prohibited in
all the states to be formed from the Northwest
Territory. This ordinance was enacted as a law
of Congress in August, 1789. Was its prohibi-
tion of slavery a valid restriction on the right of
a state to determine for itself its domestic insti-
tutions ? The violent and prolonged controversy
on this point is familiar to every reader of our
political history. As none of the states under
the ordinance ever wished to establish slavery,
the question never became a practical one. The
Supreme Court held, in two cases,i that the ordi-
nance had no more authority than any other law
of Congress, and that its principles were only
effective so far as discoverable in the constitution
of the United States or in the constitutions and
laws of the states respectively.^ This view throws
the question back again upon the constitution.
No power to abolish slavery within a state was
granted to Congress. Unless, then, the general
power to impose restrictions on new states be-
longs to the national legislature, Ohio and the
adjoining states, in spite of the slavery prohibition
in the ordinance, enjoyed equal power over the

1 Permoli vs. Municipality, 3 Howard, 589. Strader et al. vs.
Graham, 10 Howard, 94.

- For a different opinion, see Spooner vs. McConnell, i McLean,
344. Judge Cooley thinks that the weight of judicial authority
favors the validity of the ordinance even in respect to such of its
principles as are not re-enacted in the state laws. Constitutional
Limitations, 4th cd., p. 34, note,
z

338 ARE THE STATES EQUAL

subject with the remaining members of the Union.
In admitting Nevada, in 1864, Congress made the
prohibition of slavery an article of fundamental
compact with the state, and she was thus thrown
into the same category with those formed from
the Northwest Territory. All question as to the
equality of the states in this respect, however, was
removed by the ratification of the Thirteenth
Amendment in 1865. If before that time the six
states were inferior to the majority in their ab-
stract power, to-day these latter are reduced to
the lower level.

It is only when we take up a further considera-
tion of civil and religious liberty that we come to
a still enduring uncertainty. The states formed
from the Northwest Territory, as well as several
others, are to-day bound by the terms of their
admission forever to maintain in their constitu-
tions what are recognized as the fundamental
guarantees of civil liberty. The second article
of compact in the Ordinance of 1787 secures to
the inhabitants of the territory the benefit of the
writ of habeas corpus and of trial by jury, judicial
proceedings according to the course of the common
law, exemption from excessive fines and cruel or
unusual punishments, and due process of law in
the deprivation of life, liberty or property. More-
over, compensation is required for property or
services taken by the state without consent, and
any law impairing the obligation of contracts is
declared void.

UNDER THE CONSTITUTION? 339

Only the last of these restrictions was placed
upon all the states by the original constitution.
The rest are contained substantially in the con-
stitution of every state, and until after the Civil
War the rights which they protected were consid-
ered secure enough without the guarantee of the
national government. In the Fourteenth Amend-
ment, however, three clauses were inserted, with
a purpose to guard against any invasion of the
fundamental civil rights by the states.

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 prop-
erty, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

To what extent, then, do these clauses give the
federal courts a corrective jurisdiction over state
legislation and procedure } Do they afford a con-
stitutional foundation for the power assumed by
Congress in laying upon the states the restrictions
under consideration }

It was held at first by many lawyers that the
phrase "privileges and immunities of citizens of
the United States " would include all the ordinary
ingredients of civil liberty. This was denied by
the Supreme Court in the Slaughter House Cases,
and it was there decided that the fundamental
civil rights were still, as before, primarily under
the care of the states.^ A limitation is put upon
1 16 Wallace, 77.

340 ARE THE STATES EQUAL

the latter, however, by the prohibition to deprive
of life, liberty or property without due process of
law, or to refuse to any one the equal protection
of the laws. " Due process of law " has been au-
thoritatively defined to mean the process and pro-
cedure of the common law.^ The courts have
always manifested a disposition to construe the
expression with the greatest liberality in favor of
the individual. 2 Under such circumstances there
can be no doubt that every state can now be held
within the bounds that were established only for
particular states by the Ordinance of 1787 and the
various admission acts. The privilege of bail, ex-
emption from immoderate fines and cruel punish-
ments, and compensation for expropriated property
are elements of the due process which must,
under the constitution, be observed in every state.
Whether the privilege of the writ of habeas corpus
is required by the clause under discussion may not
be perfectly clear, but probability is strongly on
the side of an affirmative answer. Judge Cooley
considers that "due process" does not refer to
rules of procedure only, but to "those principles
of civil liberty and constitutional protection which
have become established in our system of laws."^
There can scarcely be a doubt that the principle

1 Murray's Lessee vs. Hoboken Land Imp. Co., i8 Howard, 272.

2 Davidson vs. New Orleans, 96 U. S. 97; R. R. Tax Cases,
13 Federal Reporter, 763.

* Constitutional Limitations, 4th ed., p. 441.

UNDER THE CONSTITUTION? 341

of protection by the habeas corpus has become so
established.

A single clause of the second article of the
great ordinance has been left unconsidered. It
is prescribed that the people shall always be en-
titled to proportionate representation in the legis-
lature. It is obvious, without further comment,
that this privilege is covered by the guarantee of a
republican form of government in the constitution.

In the sphere of civil rights, properly so called,
there is thus no distinction among the states in
respect to their authority. Let us examine the
matter of religious liberty. The first article of the
Ordinance of 1787 is in these words : "No person
demeaning himself in a peaceable and orderly
manner shall ever be molested on account of his
mode of worship or religious sentiments in the said
territory." This restriction, as part of the ordi-
nance, was imposed upon a number of the states
admitted early in the century, but disappeared from
view for a long time till it once more came to the
surface in the admission of Nevada. It purports
to put the freedom of worship and of religious
belief in certain states under the protection of the
national government. There has never been a
pretence made that authority over this subject is
conferred upon the national government by the
constitution. The United States is prohibited by
the First Amendment from interfering with the free
exercise of religion. The same clause forbids any

342 ARE THE STATES EQUAL

abridgment of the right peaceably to assemble and
to petition for redress of grievances. An opinion
on the latter prohibition was rendered by the
Supreme Court in the case of United States vs.
Cruikshank.^ It was argued by counsel that the
prohibition implied that the right to assemble was
a privilege of United States citizenship, and that
it was therefore under the protection of Congress,
by the Fourteenth Amendment. The court flatly
rejected the plea. The claim to control by the
United States over freedom of worship rests upon
precisely the same ground. It follows, therefore,
that the absolute power of Congress to impose re-
strictions upon states at their admission is the only
foundation for the condition under discussion, and
that if this power exists, the states which have
entered with this limitation are to that extent in-
ferior in rights to the others. As long, however,
as the spirit of tolerance remains as it is among
the people, this fact can have no more than a
speculative interest.

In the act providing for the admission of Utah,
the usual clause in reference to toleration is accom-
panied by a proviso forever prohibiting polygamy.
This proviso may be construed either as a declara-
tion that polygamy is not to be considered a "mode
of worship " such as to fall under the toleration
secured by the clause, or as an independent restric-
tion upon the state. In the former case Utah falls
1 92 u. S. 542.

UNDER THE CONSTITUTION? 343

into the same category with the states just consid-
ered ; in the latter she must be regarded as subject
to a restriction not resting upon any other state.
In neither case is there any constitutional basis for
control of the matter by the national government
other than the assumed power to impose restric-
tions upon states.

The fifth class of restrictions includes the re-
quirements that five of the states last admitted
shall assume the territorial public debts. This is
probably to be regarded as merely a transitional
requirement, whose force is exhausted when the
admission is complete. It would be possible to
contend that, inasmuch as the ordinance assuming
the debts is " irrevocable without the consent of
the United States," the national government would
be bound to interpose in case the state failed to
discharge its obligation in respect to this particular
part of its debt. Such a contention, however,
would have to be based on the claim that the con-
stitution authorized the United States to see that
a state paid its debts — a claim which the familiar
history of our state debts would prohibit any
rational man from bringing forward.

The sixth class of restrictions is found in the
provision requiring a non-sectarian public school
system. There is no direct ground whatever in
the constitution for any control by the national
government over education in the states. The
provision under consideration, if valid, must rest

344 ^^^ ^^-^ STATES EQUAL

upon the power to limit states at their admission.
It would be possible to claim that the requirement
of a public school system of the character stated
should be considered an equivalent for the grants
of land for school purposes embodied by Congress
in the laws admitting the states. Historically there
would be some basis for this claim ; in the early
admitting acts the grants were made in the form
of contracts involving some return by the states.
These early equivalents, however, were in the form
of tax-exemptions — involving actual pecuniary con-
siderations. The cession of jurisdiction over an
institution of the greatest political and social im-
portance could hardly be said to stand upon the
same basis. Moreover, the Supreme Court has
held, in a somewhat analogous matter, that the
observance by the states of a condition attached
to the grant of lands "rests upon the good faith
of the states."^

The last class of restrictions includes only the
new condition demanded of Nebraska. The rebel
states, it is true, were obliged to admit the negroes
to the polls and to recognize them as equal in civil
rights, as a condition of restoration after the war ;
but the action of Congress in this instance was
acknowledged on all sides to be an extraordinary
proceeding, based upon the war powers of the
national government. Nebraska, however, on no
special ground of necessity, was distinctly pro-

1 Mills County m. R. R. Co., 107 U. S. 557.

UNDER THE CONSTITUTION? 345

hibited to deny the right to vote or any other right
to any citizen on account of race or color. At this
time, many of the Northern states still retained the
word white in the suffrage clauses of their consti-
tutions, and in the border states, at least, the blacks
were under important limitations as to civil rights.
No authority of any weight whatever questioned
the right of the states to determine the qualifica-
tions of electors for themselves, or admitted any
power in Congress to interfere with the rule
adopted. If the law of Nebraska's admission,
therefore, was valid,^ that state passed the first
years of its existence on a plane of distinct
inferiority to the other states. The Fourteenth
and Fifteenth Amendments, however, removed the
irregularity. By them, the limitations which had
been imposed upon Nebraska by law were made
effective upon all the states by the constitution.

This completes the review of restrictions im-
posed upon states at their original admission into
the Union. A special case now requiring notice is
that of the rebellious states which were recon-
structed by Congress. Practically these states
were reduced to the condition of provinces, and
then erected de novo into autonomous common-
wealths. From a legal point of view, however, the
Supreme Court refused to admit that the conti-

^ The reasons assigned for the votes on the passage of the
restricting clause in the Senate are interesting. See Globe, 2d sess.
39th Cong., p. 360; also p. 450.

346 ARE THE STATES EQUAL

nuity of the state life had ever been broken. ^ The
course of Congress throughout reconstruction was
declared to have been a legitimate exercise of the
power to guarantee a republican form of govern-
ment. Upon this authority in the constitution,
therefore, the justification of the conditions of
restoration must rest. The first Reconstruction
Act^ required that in each rebel state a constitu-
tion should be framed by representatives chosen by
impartial suffrage, and that this constitution should
insure the franchise to the blacks. The ratifica-
tion of the Fourteenth Amendment (and in case
of Virginia, Mississippi and Texas, of the Fif-
teenth) was also demanded. These were conditions
precedent to the resumption of state rights ; their
force was of course exhausted at the moment of
such resumption. But the acts of Congress restor-
ing normal relations contained the most stringent
form of condition subsequent to be found in our
history. It was declared a fundamental condition
of each state's representation in Congress, that the
state constitution should never be so amended as to
deprive of the right to vote any citizen or class of
citizens entitled to vote by the constitution in ques-
tion. This limitation of the right to fix the quali-
fications of voters produced a most vital inequality
between the reconstructed and the loyal states.

1 Texas vs. White, 7 Wallace, 700. Cf. Shortridge vs. Macon,
Chase's Decisions, 136; Gunn vs. Barry, 15 Wallace, 623.

2 Act of March 2, 1867.

UNDER THE CONSTITUTION? 347

The inequality was greatly reduced, however, by
the Fifteenth Amendment. The chief purpose
of the restriction in the restoring acts was to
prevent the reconstructed states from taking away
the suffrage from the blacks. By the amendment
all the states, loyal as well as rebellious, were re-
stricted in this respect to the same extent. But
the wording of the restoring acts was wider in its
scope than that of the amendment. The restored
states were prohibited from narrowing the elec-
torate on any ground ; the remaining states were
prohibited only as to race, color or previous condi-
tion of servitude. If the conditions of restoration
are valid, therefore, the ten reconstructed states still
remain theoretically on a lower level of rights than
the other states. Practically this distinction has dis-
appeared. Mississippi in 1890 and South Carolina
in 1895 amended their constitutions by establishing
severe intelligence and property qualifications for
the suffrage. The two states openly defied the
acts of Congress restoring them to their rights
after rebellion, and the defiance was based on
the claim to equal rights with any of the other
states of the Union.

In the restoration of Virginia, Texas and Mis-
sissippi, two further fundamental conditions were
imposed. First, these states were forbidden to
make the race, color or previous servitude of any
citizen of the United States a disqualification for
holding office, or to discriminate in qualifications

348 ARE THE STATES EQUAL

for office between classes of citizens ; and second,
their constitutions were never to be so amended
as to deprive any United States citizens of the
school rights and privileges secured therein.

The right to hold office is not expressly placed
by the constitution under the guarantee of the
United States.^ The tendency of the Supreme
Court's decisions does not indicate a probability
that the right can be adjudged a privilege of
United States citizenship, or be classed with those
rights to which every state must give the equal
protection of the laws. It is a historical fact that
a determined effort was made, during the discus-
sion of the Fifteenth Amendment in Congress, to
include the right to hold office in the prohibition
of that article. The proposition was passed at dif-
ferent times by both Senate and House, but finally
disappeared in conference committee.^ In view of
this fact, the control of the whole subject seems to
be still in the states, and the restriction placed
upon Virginia, Mississippi and Texas deprives
them of a right which is enjoyed by all the other
members of the Union.

The guarantee of equal school privileges to all
citizens of the United States within those three
states was based on an assumption that educational

1 Ultra-liberal construction might possibly regard it as inci-
dental to a republican form of government, and thus justify its
protection by Congress.

2 Globe, 3d sess., 40th Cong., pp. 1040, 1428, 1481.

UNDER THE CONSTITUTION? 349

facilities were a right of United States citizenship.
There is no ground in the constitution for this
assumption. Education is a matter which was left
wholly within state control. Whatever privileges
in this direction are granted by a state to its citi-
zens may, of course, be enjoyed by citizens of
other states v^^hile within its boundaries. This en-
joyment, however, is a privilege that results from
state citizenship under the ante-bellum constitu-
tion. Citizens of the United States, as such, can-
not claim it. The case is entirely analogous to
that of the taxation of the land of non-residents.
Unequal laws are unconstitutional so far as citizens
of other states are concerned ; citizens of the terri-
tories and of the District of Columbia are not thus
protected. The act of Congress, therefore, which
forbids any discrimination whatever in the three
states limits their power to that extent within the
bounds prescribed for the rest.^

IV

The review of the acts of Congress by which
the powers of the various states have been re-
stricted is now complete. It has been shown that

1 The federal circuit court in Kentucky expressed its readiness
to grant an injunction restraining the application of money raised
by state taxes to schools open to white children exclusively. The
ground was the Fourteenth Amendment. Claybrook vs. Owens-
boro, 23 Fed. Rep. 634.

350 ARE THE STATES EQUAL

a great majority of the compacts and fundamental
conditions were such only in name, and were
wholly without influence on the constitutional
relations of the national and state governments.
We have seen how several real and vital limita-
tions imposed by law upon individual states were
afterwards extended to all by amendment of the
national constitution. The residuum of matters in
which inequality may still be fairly held to exist
is small and comparatively unimportant. In brief,
it may be summed up thus : Ohio, Indiana, Illinois,
Michigan, Wisconsin, Mississippi, Alabama, Louisi-
ana, Arkansas, Minnesota, Iowa, Oregon, California,
Kansas, Nevada, Nebraska, Colorado, Montana, the
two Dakotas, Washington and Utah have not the
right, enjoyed by the original states, of discrim-
inating in land-taxation against citizens of the
United States who are not citizens of any state ;
Ohio, Indiana, Illinois, Michigan, Wisconsin, Lou-
isiana, Mississippi, Alabama, Nevada, Nebraska,
Colorado, Montana, the two Dakotas, Washington
and Utah are forbidden to establish any rule inter-
fering with the freedom of worship or religious
sentiment, while no such prohibition rests upon
the other states ; Montana, Washington, the two
Dakotas and Utah are required to establish non-
sectarian systems of public schools ; Utah is for-
bidden to permit the existence of polygamy;
Virginia, North Carolina, South Carolina, Georgia,
Florida, Alabama, Mississippi, Arkansas, Louisiana

UNDER THE CONSTITUTION? 35 1

and Texas are forbidden to amend the franchise
clauses of their constitutions in certain respects as
to which the rest of the states are free from re-
straint ; and finally, Virginia, Mississippi and Texas
are forbidden to make race, color or previous con-
dition of servitude a disqualification for holding
office, or to amend their constitutions so as to
deprive any citizen of the United States of the
school privileges secured therein.

The conclusion from all the historical facts
seems to be that at no time since the formation
of the present constitution have all the states of
the Union been in the enjoyment of equal powers
under the laws of Congress. A principle of con-
stitutional law under our system can never be said
to be fully established until it has received the
positive sanction of all three co-ordinate depart-
ments of the government. Tested by this rule
the theory of equal states falls to the ground.
Neither by the judiciary nor by the executive
has the doctrine been decisively affirmed ; while
the action of the legislature has been in many
cases in positive contradiction of it. A century of
legislation cannot but be regarded as making a
pretty strong foundation for the interpretation of
any part of the constitution. It is the legislature
that must interpret the organic law in the first
instance, and such interpretation must stand as
sound until overruled by the Supreme Court. But
in political questions the court has consistently

352 ARE THE STATES EQUAL?

declined to take jurisdiction. In such matters
the action of the legislature is conclusive. There
seems to be good reason for considering the rela-
tion of the United States to the individual states
in respect to the terms of admission a political
question. If it is, the theory that all states have
equal powers must be regarded as finally defunct ;
if it is not, the theory can only be galvanized into
life by a powerful act of judicial construction.

But while such is the technical position of the
doctrine in constitutional law, it enjoys a some-
what different role in general public opinion and in
practice. Whatever differences may exist in the
powers which the states may exercise over differ-
ent subjects, the powers which they do exercise
are everywhere substantially the same. That the
maintenance of such a condition of things is at
present the wisest policy for the nation, will be
doubted by no one. Time, however, may change
all this. The differentiation of interests in the
vast region covered by the states may bring about
a situation in which the welfare of the whole will
be best subserved by an unequal distribution of
powers among the parts. When that time comes,
the theory of equal states will disappear as did
that of state-sovereignty, and possibly with as
tremendous a convulsion.

THE UNDOING OF RECONSTRUCTION

In July of 1870, when the law declaring Georgia
entitled to representation in Congress was finally
enacted, the process of reconstruction was, from
the technical point of view, complete. Ten of the
states which had seceded from the Union had been
" made over " by a series of operations which
involved, first, the creation in each of a new po-
litical people, in which the freedmen constituted
an important element, and, second, the organiza-
tion in each of a new government, in the working
of which the participation of the blacks on equal
terms with the whites was put under substantial
guarantees. The leading motive of the reconstruc-
tion had been, at the inception of the process, to
insure to the freedmen an effective protection of
their civil rights, — of Hf e, liberty and property.
In the course of the process, the chief stress came
to be laid on the endowment of the blacks with
full political rights, — with the electoral franchise
and eligibility to office. And by the time the
process was complete, a very important, if not
the most important, part had been played by the
desire and the purpose to secure to the Republi-
can Party the permanent control of several South-
ern states in which hitherto such a political
2 A 353

354 ^-^^ UNDOING OF RECONSTRUCTION

organization had been unknown. This last motive
had a plausible and widely accepted justification
in the view that the rights of the negro and the
" results of the war " in general would be secure
only if the national government should remain in-
definitely in Republican hands, and that therefore
the strengthening of the party was a primary dic-
tate of patriotism.

Through the operation of these various motives,
successive and simultaneous, the completion of the
reconstruction showed the following situation :
(i) the negroes were in the enjoyment of equal
political rights with the whites ; (2) the Republi-
can Party was in vigorous life in all the Southern
states, and in firm control of many of them ; and
(3) the negroes exercised an influence in political
affairs out of all relation to their intelligence or
property, and, since so many of the whites were
disfranchised, excessive even in proportion to their
numbers. At the present day, in the same states,
the negroes enjoy practically no political rights;
the Republican Party is but the shadow of a name ;
and the influence of the negroes in political affairs
is nil. This contrast suggests what has been in-
volved in the undoing of reconstruction.

Before the last state was restored to the Union
the process was well under way through which the

THE UNDOING OF RECONSTRUCTION 355

resumption of control by the whites was to be
effected. The tendency in this direction was
greatly promoted by conditions within the Repub-
lican Party itself. Two years of supremacy in
those states which had been restored in 1868 had
revealed unmistakable evidences of moral and
poHtical weakness in the governments. The per-
sonnel of the party was declining in character
through the return to the North of the more sub-
stantial of the carpet-baggers, who found Southern
conditions, both social and industrial, far from
what they had anticipated, and through the very
frequent instances in which the "scalawags" ran
to open disgrace. Along with this deterioration in
the white element of the party, the negroes who
rose to prominence and leadership were very fre-
quently of a type which acquired and practiced the
tricks and knavery rather than the useful arts of
politics, and the vicious courses of these negroes
strongly confirmed the prejudices of the whites.
But at the same time that the incapacity of the
party in power to administer any government was
becoming demonstrable, the problems with which
it was required to cope were made by its adversa-
ries such as would have taxed the capacity of the
most efficient statesmen the world could produce.
Between 1868 and 1870, when the cessation of the
national mihtary authority left the new state gov-
ernments to stand by their own strength, there
developed that widespread series of disorders with

356 THE UNDOING OF RECONSTRUCTION

which the name of the Ku Klux Klan is associated.
While these were at their height the RepubUcan
Party was ousted from control in four of the old
rebel states, namely, Tennessee, North Carolina,
Georgia and Virginia. The inference was at once
drawn that the whites of the South were pursuing
a deliberate policy of overthrowing the negro party
by violence. No attention was paid to the claim
that the manifest inefficiency and viciousness of
the Republican governments afforded a partial, if
not a wholly adequate, explanation of their over-
throw. Not even the relative quiet and order that
followed the triumph of the whites in these states
were recognized as justifying the new regime. The
North was deeply moved by what it considered
evidence of a new attack on its cherished ideals
of liberty and equality, and when the Fifteenth
Amendment had become part of the constitution.
Congress passed the Enforcement Acts and the laws
for the federal control of elections. To the forces
making for the resumption of white government in
the South was thus opposed that same apparently
irresistible power which had originally overthrown it.
That the Ku Klux movement was to some extent
the expression of a purpose not to submit to the
political domination of the blacks, is doubtless true.
But many other motives were at work in the dis-
orders, and the purely political antithesis of the
races was not so clear in the origin and develop-
ment of the movement as in connection with the

I

THE UNDOING OF RECONSTRUCTION 357

efforts of the state governments to suppress it.
Thousands of respectable whites, who viewed the
Ku Klux outrages with horror, turned with equal
horror from the projects of the governments to
quell the disturbances by means of a negro militia.
Here was the crux of the race issue. Respectable
whites would not serve with the blacks in the
militia ; the Republican state governments would
not — and indeed, from the very nature of the
case, could not — exclude the blacks from the
military service; the mere suggestion of employ-
ing the blacks alone in such service turned every
white into practically a sympathizer with the Ku
Klux : and thus the government was paralyzed at
the foundation of its authority. It was demon-
strated again and again that the appearance of a
body of negroes under arms, whether authorized by
law or not, had for its most certain result an affray,
if not a pitched battle, with armed whites, in which
the negroes almost invariably got the worst of it.

On the assumption, then, that the white state
governments in the South were unwilling, and the
black governments were unable, to protect the
negro in his rights. Congress inaugurated the pol-
icy of the " Force Acts." The primary aim was
to protect the right to vote, but ultimately the
purely civil rights, and even the so-called " social
rights," were included in the legislation. By the
act of 1870,^ a long series of minutely specified

1 16 Statutes at Large, 140.

358 THE UNDOING OF RECONSTRUCTION

offenses, involving violence, intimidation and fraud,
with the effect or even the intention of denying
equal rights to any citizens of the United States,
were made crimes and misdemeanors, and were
thus brought under the jurisdiction of the federal
courts. Great activity was at once displayed by
the United States district attorneys throughout the
South, and hundreds of indictments were brought
in ; but convictions were few. The whites opposed
to the process of the federal courts, supported by
federal troops, no such undisguised resistance as
had often been employed against state officers
backed by a posse comitatus or a militia com-
pany of negroes. But every advantage was taken
of legal technicalities; in the regions where the
Ku Klux were strong, juries and witnesses were
almost invariably influenced by sympathy or terror
to favor the accused ; and the huge disproportion
between the number of arrests and the number of
convictions was skillfully employed to sustain the
claim that the federal officers were using the law
as the cover for a systematic intimidation and
oppression of the whites. As the effect of this
first act seemed to be rather an increase than a
decrease in the disorders of the South, Congress
passed in the following year a more drastic law.
This, known commonly as the Ku Klux Act,^
healed many technical defects in the earlier law ;
reformulated in most precise and far-reaching

1 17 Statutes at Large, 13.

THE UNDOING OF RECONSTRUCTION 359

terms the conspiracy clause, which was especially
designed to cover Ku Klux methods ; and, finally,
authorized the President, for a limited time, to sus-
pend the writ of habeas corpus and employ military
force in the suppression of violence and crime in
any given district. In addition to the punitive sys-
tem thus established. Congress at the same time
instituted a rigorous preventive system through the
Federal Elections Laws. By acts of 1871 and
1872,^ every polHng place, in any election for
Congressmen, might be manned by ofificials ap-
pointed by the federal courts, with extensive
powers for the detection of fraud, and with
authority to employ the federal troops in the
repression of violence.

Through the vigorous policy thus instituted by
the national government the movement toward the
resumption of control by the whites in the South
met with a marked though temporary check. The
number of convictions obtained under the Ku Klux
Act was not large, and President Grant resorted
in but a single instance — that of certain counties
in South Carolina, in the autumn of 1871 — to the
extraordinary powers conferred upon him. But
the moral effect of what was done was very great,
and the evidence that the whole power of the na-
tional government could and would be exerted on
the side of the blacks produced a salutary change in
method among the whites. The extreme and vio-

1 U. S. Revised Statutes, § 201 1 et seq.

36o THE UNDOING OF RECONSTRUCTION

lent element was reduced to quiescence, and haste
was made more slowly. No additional state was
redeemed by the whites until 1874. Meanwhile,
the wholesale removal of political disabilities by
Congress in 1872 brought many of the old and
respected Southern politicians again into public
life, with a corresponding improvement in the
quality of Democratic leadership. More defer-
ence began to be paid to the Northern sentiment
hostile to the Grant administration which had been
revealed in the presidential campaign of 1872, and
the policy of the Southern whites was directed
especially so as to bring odium upon the use of
the military forces in the states yet to be wrested
from black control.

It was upon the support of the federal troops
that the whole existence of the remaining black
governments in the South came gradually to de-
pend. Between 1872 and 1876 the Republican
Party split in each of the states in which it still
retained control, and the fusion of one faction with
the Democrats gave rise to disputed elections,
general disorder, and appeals by the radical Re-
publicans to the President for aid in suppress-
ing domestic violence. Alabama, Arkansas and
Texas emerged from the turmoil in 1874 with the
whites triumphant ; and the federal troops, after
performing useful service in keeping the factions
from serious bloodshed, ceased to figure in politics.
But in Louisiana and South Carolina the radical

THE UNDOING OF RECONSTRUCTION 36 1

factions retained power exclusively through the
presence of the troops, who were employed in
the former state to reconstitute both the legisla-
ture and the executive at the bidding of one of the
claimants of the gubernatorial office. The very
extraordinary proceedings in New Orleans greatly
emphasized the unfavorable feeling at the North
toward ** governments resting on bayonets"; and
when, upon the approach of the state election of
1875 in Mississippi, the radical governor applied
for troops to preserve order, President Grant
rather tartly refused to furnish them. The re-
sult was the overthrow of black government in
that state. Though strenuously denied at the
time, it was no deep secret that the great negro
majority in the state was overcome in this cam-
paign by a quiet but general exertion of every
possible form of pressure to keep the blacks from
the polls. The extravagance and corruption of
the state administration had become so intol-
erable to the whites that questionable means of
terminating it were admitted by even the most
honorable without question. There was rela-
tively little "Ku-Kluxing" or open violence, but
in countless ways the negroes were impressed
with the idea that there would be peril for them
in voting. " Intimidation " was the word that had
vogue at the time, in describing such methods, and
intimidation was illegal. But if a party of white
men, with ropes conspicuous on their saddlebows,

362 THE UNDOING OF RECONSTRUCTION

rode up to a polling place and announced that
hanging would begin in fifteen minutes, though
without any more definite reference to anybody,
and a group of blacks who had assembled to vote
heard the remark and promptly disappeared, votes
were lost, but a conviction on a charge of intimida-
tion was difficult. Or if an untraceable rumor
that trouble was impending over the blacks was
followed by the mysterious appearance of bodies
of horsemen on the roads at midnight, firing guns
and yelling at nobody in particular, votes again
were lost, but no crime or misdemeanor could be
brought home to any one. Devices like these
were familiar in the South, but on this occasion
they were accompanied by many other evidences
of a purpose on the part of the whites to carry
their point at all hazards. The negroes, though
numerically much in excess of the whites, were
very definitely demoralized by the aggressiveness
and unanimity of the latter, and in the ultimate
test of race strength the weaker gave way.

The " Mississippi plan " was enthusiastically
applied in the remaining three states, Louisiana,
South Carolina and Florida, in the elections of
1876. Here, however, the presence of the federal
troops and of all the paraphernalia of the Federal
Elections Laws materially stiffened the courage of
the negroes, and the result of the state elections
became closely involved in the controversy over
the presidential count. The Southern Democratic

THE UNDOING OF RECONSTRUCTION 363

leaders fully appreciated the opportunity of their
position in this controversy, and, through one of
those bargains without words which are common
in great crises, the inauguration of President
Hayes was followed by the withdrawal of the
troops from the support of the last radical govern-
ments, and the peaceful lapse of the whole South
into the control of the whites.

II

With these events of 1877 the first period in the
undoing of reconstruction came to an end. The
second period, lasting till 1890, presented condi-
tions so different from the first as entirely to
transform the methods by which the process was
continued. Two, indeed, of the three elements
which have been mentioned as summing up recon-
struction still characterized the situation : the ne-
groes were precisely equal in rights with the other
race, and the Republican Party was a powerful
organization in the South. As to the third ele-
ment, the disproportionate political influence of
the blacks, a change had been effected, and their
power had been so reduced as to correspond much
more closely to their general social significance.
In the movement against the still enduring fea-
tures of reconstruction the control of the state
governments by the whites was of course a new
condition of the utmost importance; but not less

364 THE UNDOIXG OF RECONSTRUCT! OX

vital was the party complexion of the national
government. From 1S75 to iSSo neither of the
great parties was at any one time in effective con-
trol of both the presidency and the two houses of
Congress. As a consequence, no partisan legis-
lation could be enacted. Though the state of
affairs in the South was for years a party issue
of the first magnitude, the legislative deadlock
had for its general result a policy of non-interfer-
ence by the national government, and the whites
were left to work out in their own way the ends
thev had in view. Some time was necessary, how-
ever, to overcome the influence of the two bodies
of legislation already on the national statute book,
— the Force Acts and the Federal Flections Laws.
During the Hayes administration the latter laws
were the subject of a prolonged and violent con-
test between the Democratic houses and the Re-
publican President. The Democrats put great
stress on the terror and intimidation of the whites
and the violation of freemen's rights due to the
presence of federal officials at the polls, and of
federal troops near them. The RepubHcans in-
sisted that these officials and troops were essential
to enable the negroes to vote and to have their
votes counted. As a matter of fact, neither of
these contentions was of the highest significance
so far as the South was concerned. The whites,
once in control of the state electoral machinery,
readily devised means of evading or neutralizing the

TJih UNi)()iN(; Of' k/jjjn:/! KiicjjoN 3O5

influence of the federal officers. But the patron-
age in the hands of the administration party under
these laws was enormous. The power to appoint
supervisors and deputy marshals at election time
was a tower of strength, from the standpoint hoth
of direct votes and of indirect influence. Accord-
ingly, the attack of the Democrats upon the laws
was actuated mainly by the purpose of breaking
down the Republican party organization in the
South. The attack was successful in Mr. Hayes's
time only to the extent that no appropriation was
made for the payment of the supervisors and dep-
uty marshals for their services in the elections
of 1880. The system of federal supervision re-
mained, but gradually lost all significance save as
a biennial sign that the Republican Party still sur-
vived ; and when Mr. Cleveland became President
even this relation to its original character disap-
peared.

The P'orce Acts experienced a similar decline
during the period we are considering. In 1875,
just before the Republicans lost control of Con-
gress, they passed, as a sort of memorial to
Charles Sumner, who had long urged its adoption,
a Supplementary Civil Rights Hill,^ which made
criminal, and put under the jurisdiction of the
federal courts, any denial of equality to negr^>es in
respect to accommodations in theatres, railway
cars, hotels, and other such places. This was not

» 18 .SUtutes at I^rg':, 335.

366 THE UNDOING OF RECONSTRUCTION

regarded by the most thoughtful Republicans as a
very judicious piece of legislation ; but it was per-
ceived that, with the Democrats about to control
the House of Representatives, there was not likely
to be a further opportunity for action in aid of the
blacks, and so the act was permitted to go through
and take its chances of good. Already, however,
the courts had manifested a disposition to question
the constitutionality of the most drastic provisions
of the earHer Enforcement Acts. It has been
said above that indictments under these acts had
been many, but convictions few. Punishments
were fewer still ; for skillful counsel were ready to
test the profound legal questions involved in the
legislation, and numbers of cases crept slowly up
on appeal to the Supreme Court. In 1875, this
tribunal threw out an indictment under which a
band of whites who had broken up a negro meet-
ing in Louisiana had been convicted of conspiring
to prevent negroes from assembHng for lawful pur-
poses and from carrying arms ; for the right to
assemble and the right to bear arms, the court de-
clared, pertained to citizenship of a state, not of
the United States, and therefore redress for inter-
ference with these rights must be sought in the
courts of the state.^ In the same year, in the case
of United States vs. Reese,^ two sections of the
Enforcement Act of 1870 were declared unconsti-
tutional, as involving the exercise by the United

1 U. S. vs. Cruikshank, 92 U. S., 542. 2 ^2 U. S., 214.

THE UNDOING OF RECONSTRUCTION 367

States of powers in excess of those granted by the
Fifteenth Amendment. It was not, however, till
1882 that the bottom was taken wholly out of the
Ku Klux Act. In the case of United States vs.
Harris 1 the conspiracy clause in its entirety was
declared unconstitutional. This was a case from
Tennessee, in which a band of whites had taken
a negro away from the officers of the law and mal-
treated him. The court held that, under the last
three amendments to the constitution. Congress
was authorized to guarantee equality in civil rights
against violation by a state through its officers or
agents, but not against violation by private individ-
uals. Where assault or murder or other crime
was committed by a private individual, even if the
purpose was to deprive citizens of rights on the
ground of race, the jurisdiction, and the exclusive
jurisdiction, was in the state courts. And because
the conspiracy clause brought such offenses into
the jurisdiction of the United States it was uncon-
stitutional and void. This decision finally disposed
of the theory that the failure of a state to protect
the negroes in their equal rights could be regarded
as a positive denial of such rights, and hence could
justify the United States in interfering. It left
the blacks practically at the mercy of white public
sentiment in the South. A year later, in 1883, the
court summarily disposed of the act of 1875 by
declaring that the rights which it endeavored to
1 106 U. S., 629.

368 THE UNDOING OF RECONSTRUCTION

guarantee were not strictly civil rights at all, but
rather social rights, and that in either case the
federal government had nothing to do with them.
The act was therefore held unconstitutional.^

Thus passed the most characteristic features of
the great system through which the Republicans
had sought to prevent by normal action of the
courts, independently of changes in public opinion
and political majorities, the undoing of reconstruc-
tion. Side by side with the removal of the pre-
ventives, the Southern whites had made enormous
positive advances in the suppression of the other
race. In a very general way the process in this
period, as contrasted with the earlier, may be said
to have rested, in last resort, on legislation and
fraud rather than on intimidation and force. The
statute books of the states, especially of those in
which negro rule had lasted the longest, abounded
in provisions for partisan — that is, race — advan-
tage. These were at once devoted as remorse-
lessly to the extinction of black preponderance as
they had been before devoted to the repression of
the whites. Moreover, by revision of the constitu-
tions and by sweeping modifications of the laws,
many strongholds of the old regime were destroyed.
Yet, with all that could be done in this way, the
fact remained that in many localities the negroes
so greatly outnumbered the whites as to render
the political ascendency of the latter impossible,

1 Civil Rights Cases, 109 U. S. i.

THE UNDOING OF RECONSTRUCTION 369

except through some radical changes in the laws
touching the suffrage and the elections; and in
respect to these two points the sensitiveness of
Northern feeling rendered open and decided action
highly inexpedient. Before 1880 the anticipation,
and after that year the realization, of a "solid
South " played a prominent part in national poli-
tics. The permanence of white dominion in the
South seemed, in view of the past, to depend as
much on the exclusion of the RepubUcans from
power at Washington as on the maintenance of
white power at the state capitals. Under all the
circumstances, therefore, extra-legal devices had
still to be used in the "black belt."

The state legislation which contributed to con-
firm white control included many ingenious and
exaggerated applications of the gerrymander and
the prescription of various electoral regulations
that were designedly too intricate for the average
negro intelligence. In Mississippi appeared the
"shoestring district," three hundred miles long
and about twenty wide, including within its bound-
aries nearly all the densest black communities of
the state. In South Carolina, the requirement
that, with eight or more ballot boxes before him,
the voter must select the proper one for each
ballot, in order to insure its being counted, fur-
nished an effective means of neutralizing the igno-
rant black vote; for though the negroes, unable
to read the lettering on the boxes, might acquire,

2B

370 THE UNDOING OF RECONSTRUCTION

by proper coaching, the power to discriminate
among them by their relative positions, a moment's
work by the whites in transposing the boxes would
render useless an hour's laborious instruction. For
the efficient working of this method of suppression,
it was indispensable, however, that the officers of
election should be whites. This suggests at once
the enormous advantage gained by securing con-
trol of the state government. In the hot days of
negro supremacy the electoral machinery had been
ruthlessly used for partisan purposes, and when
conditions were reversed the practice was by no
means abandoned. It was, indeed, through their
exclusive and carefully maintained control of the
voting and the count that the whites found the
best opportunities for illegal methods.

Because of these opportunities the resort to bull-
dozing and other violence steadily decreased. It
penetrated gradually to the consciousness of the
most brutal white politicians that the whipping or
murder of a negro, no matter for what cause, was
likely to become at once the occasion of a great
outcry at the North, while by an unobtrusive ma-
nipulation of the balloting or the count very encour-
aging results could be obtained with little or no
commotion. Hence that long series of practices,
in the regions where the blacks were numerous,
that give so grotesque a character to the testimony
in the contested-election cases in Congress, and to
the reminiscences of candid Southerners. Polling

THE UNDOING OF RECONSTRUCTION 371

places were established at points so remote from
the densest black communities that a journey of
from twenty to forty miles was necessary in order
to vote ; and where the roads were interrupted by
ferries, the resolute negroes who attempted to
make the journey were very likely to find the
boats laid up for repairs. The number of polHng
places was kept so small as to make rapid voting
indispensable to a full vote ; and then the whites,
by challenges and carefully premeditated quarrels
among themselves, would amuse the blacks and
consume time, till only enough remained for the
casting of their own votes. The situation of the
polls was changed without notice to the negroes,
or, conversely, the report of a change was indus-
triously circulated when none had been made.
Open bribery on a large scale was too common to
excite comment. One rather ingenious scheme is
recorded which presents a variation on the old
theme. In several of the states a poll-tax receipt
was required as a qualification for voting. In an
important local election, one faction had assured
itself of the negro vote by a generous outlay in
the payment of the tax for a large number of the
blacks. The other faction, alarmed at the prospect
of almost certain defeat, availed itself of the oppor-
tunity presented by the providential advent of a
circus in the neighborhood, and the posters an-
nounced that poll-tax receipts would be accepted
for admission. As a result, the audience at the

372 THE UNDOING OF RECONSTRUCTION

circus was notable in respect to numbers, but the
negro vote at the election was insignificant.

But exploitation of the poverty, ignorance, cre-
dulity, and general childishness of the blacks was
supplemented, on occasion, by deliberate and high-
handed fraud. Stuffing of the boxes with illegal
ballots, and manipulation of the figures in making
the count, were developed into serious arts. At
the acme of the development undoubtedly stood the
tissue ballot. There was in those days no pre-
scription of uniformity in size and general char-
acter of the ballots. Hence miniature ballots of
tissue paper were secretly prepared and distributed
to trusted voters, who, folding as many, sometimes,
as fifteen of the small tickets within one of the
ordinary large tickets, passed the whole, without
detection, into the box. Not till the box was
opened were the tissue tickets discovered. Then,
because the number of ballots exceeded the number
of voters as indicated by the polling list, it became
necessary, under the law, for the excess to be
drawn out by a blindfolded man before the count
began. So some one's eyes were solemnly band-
aged, and he was set to drawing out ballots, on
the theory that he could not distinguish those of
one party from those of the other. The result is
not hard to guess. In one case given by the
Senate committee ^ through whose investigation of

1 The report of this committee is in Sen. Rep. 3d sess., 45th
Cong., vol. iv.

THE UNDOING OF RECONSTRUCTION 373

the elections of 1878, in South Carolina, the theory
and practice of the tissue ballot were revealed to
an astonished world, the figures were as follows : —

Number of ballots in box 1163

Names on polling list 620

Excess drawn out c^-j

Tissue ballots left to be counted .... 464

Not the least interesting feature of this episode
was the explanation, given with entire gravity by
the white committee, of the existence of the great
mass of tissue ballots. They were prepared, it
was said, in order to enable the blacks who wished
to vote the Democratic ticket to do so secretly, and
thus to escape the ostracism and other social pen-
alties which would be meted out to them by the
majority of their race.

Under the pressure applied by all these various
methods upon the negroes, the black vote slowly
disappeared. And with it the Republican Party
faded into insignificance. In the presidential elec-
tion of 1884 the total vote in South Carolina
was, in round numbers, 91,000, as compared with
182,000 in 1876. In Mississippi the correspond-
ing decrease was from 164,000 to 120,000; in Loui-
siana, from 160,000 to 108,000. The Republican
party organization was maintained almost exclu-
sively through the holders of federal offices in the
postal and revenue service. When, in 1885, a Demo-
cratic administration assumed power, this basis for

374 ^^-^ UNDOING OF RECONSTRUCTION

continued existence was very seriously weakened,
and the decline of the party was much accelerated.
Save for a few judicial positions held over from
early appointments, the national offices, like those
of the states, were hopelessly removed from the
reach of any Republican's ambition. A compari-
son of the Congressional delegation from the states
of the defunct Confederacy in the Forty-first
Congress (1869-71) with that in the Fifty-first
(1889-91) is eloquent of the transformation that
the two decades had wrought: in the former, twenty
out of the twenty-two Senators were Republican,
and forty-four out of fifty-eight Representatives;
in the latter, there were no RepubHcan Senators
and but three Representatives.

Summarily, then, it may be said that the second
period in the undoing of reconstruction ends with
the political equality of the negroes still recog-
nized in law, though not in fact, and with the Re-
publican Party, for all practical purposes, extinct
in the South. The third period has had for its
task the termination of equal rights in law as well
as in fact.

Ill

The decline of negro suffrage and of the Re-
publican Party in the South was the topic of much
discussion in national politics and figured in the
party platforms throughout the period from 1876
to 1888; but owing to the deadlock in the party

THE UNDOING OF RECONSTRUCTION 375

control of the national legislature the discussion
remained academic in character, and the issue was
supplanted in pubhc interest by the questions of
tariff, currency and monopoly. By the elections
of 1888, however, the RepubHcans secured not
only the presidency, but also a majority in each
house of Congress. The deadlock of thirteen
years was broken, and at once an effort was
made to resume the poHcy of the Enforcement
Acts. A bill was brought in that was designed to
make real the federal control of elections. The
old acts for this purpose were, indeed, still on the
statute book, but their operation was farcical ; the
new project, while maintaining the general Hnes
of the old, would have imposed serious restraints
on the influences that repressed the negro vote,
and would have infused some vitality into the
moribund Republican Party in the South. It was
quickly demonstrated, however, that the time for
this procedure had gone by. The bill received
perfunctory support in the House of Repre-
sentatives, where it passed by the regular party
majority, but in the Senate it was rather con-
temptuously set aside by Republican votes. Pub-
lic sentiment in the North, outside of Congress,
manifested considerable hostility to the project,
and its adoption as a party measure probably
played a rdle in the tremendous reaction which
swept the Republicans out of power in the House
in 1890, and gave to the Democrats in 1892 the

376 THE UXDOING OF RECONSTRUCTION

control of both houses of Congress and the
presidency as well. The response of the Demo-
crats to the futile project of their adversaries was
prompt and decisive. In February, 1894, an act
became law which repealed all existing statutes that
provided for federal supervision of elections. Thus
the last vestige disappeared of the system through
which the political equality of the blacks had re-
ceived direct support from the national government.
In the meantime, a process had been instituted
in the Southern states that has given the most dis-
tinctive character to the last period in the undoing
of reconstruction. The generation-long discussions
of the political conditions in the South have evoked
a variety of explanations by the whites of the dis-
appearance of the black vote. These different
explanations have of course all been current at all
times since reconstruction was completed, and
have embodied different degrees of plausibility
and truth in different places. But it may fairly
be said that in each of the three periods into which
the undoing of reconstruction falls one particular
view has been dominant and characteristic. In
the first period, that of the Ku Klux and the Mis-
sissippi plan, it was generally maintained by the
whites that the black vote was not suppressed, and
that there was no political motive behind the dis-
turbances that occurred. The victims of murder,
bulldozing and other violence were represented as
bad and socially dangerous men, and their treat-

THE UNDOING OF RECONSTRUCTION 377

ment as merely incident to their own illegal and
violent acts, and expressive of the tendency to
self-help instead of judicial procedure, which had
always been manifest in Southern life, and had
been aggravated by the demoralization of war time.
After 1877, when the falling off in the RepubHcan
vote became so conspicuous, the phenomenon was
explained by the assertion that the negroes had
seen the light, and had become Democrats. Mr.
Lamar gravely maintained, in a famous controversy
with Mr. Blaine,! that the original Republican
theory as to the educative influence of the ballot
had been proved correct by the fact that the en-
franchised race had come to recognize that their
true interests lay with the Democratic Party ; the
Republicans were estopped, he contended, by their
own doctrine from finding fault with the result.
A corollary of this idea that the negroes were
Democrats was generally adopted later in the
period, to the effect that, since there was practi-
cally no opposition to the Democracy, the negroes
had lost interest in poHtics. They had got on the
road to economic prosperity, it was said, and
were too busy with their farms and their growing
bank accounts to care for other things.

Whatever of soundness there may have been in
any of these explanations, all have been super-
seded, during the last decade, by another, which,
starting with the candid avowal that the whites are

1 North American Review^ vol. 128 (1879), p. 225.

378 THE UNDOING OF RECONSTRUCTION

determined to rule, concedes that the elimination
of the blacks from politics has been effected by
intimidation, fraud, or any other means, legal or
illegal, that would promote the desired end. This
admission has been accompanied by expressions of
sincere regret that illegal means were necessary,
and by a general movement toward clothing with
the forms of law the disfranchisement which has
been made a fact without them. In 1890, just
when the RepubHcans in Congress were pushing
their project for renewing the federal control of
elections, Mississippi made the first step in the new
direction. Her constitution was so revised as to
provide that, to be a quahfied elector, a citizen
must produce evidence of having paid his taxes
(including a poll tax) for the past two years, and
must, in addition, "be able to read any section in
the constitution of this state, or ... be able to
understand the same when read to him, or give a
reasonable interpretation thereof." Much might
be said in favor of such an alternative intelligence
qualification in the abstract: the mere ability to
read is far from conclusive of intellectual capacity.
But the peculiar form of this particular provision
was confessedly adopted, not from any considera-
tion of its abstract excellence, but in order to vest
in the election officers the power to disfranchise
illiterate blacks without disfranchising illiterate
whites. In practice, the white must be stupid
indeed who cannot satisfy the official demand for a

THE UNDOING OF RECONSTRUCTION 379

" reasonable interpretation," while the negro who
can satisfy it must be a miracle of brilliancy.

Mississippi's bold and undisguised attack on
negro suffrage excited much attention. In the
South it met with practically unanimous approval
among thoughtful and conscientious men, who had
been distressed by the false position in which they
had long been placed. And at the North, public
opinion, accepting with a certain satirical com-
placency the confession of the Southerners that
their earlier explanations of conditions had been
false, acknowledged in turn that its views as to
the political capacity of the blacks had been irra-
tional, and manifested no disposition for a new
crusade in favor of negro equaUty. The action
of Mississippi raised certain questions of constitu-
tional law which had to be tested before her solu-
tion of the race problem could be regarded as
final. Like all the other seceded states, save
Tennessee, she had been readmitted to repre-
sentation in Congress, after reconstruction, on
the express condition that her constitution should
never be so amended as to disfranchise any who
were entitled to vote under the existing provisions.
The new amendment was a most explicit violation
of this condition. Further, so far as the new
clause could be shown to be directed against the
negroes as a race, it was in contravention of the
Fifteenth Amendment. These legal points had
been elaborately discussed in the state conven-

380 THE UNDOING OF RECONSTRUCTION

tion, and the opinion had been adopted that, since
neither race, color nor previous condition of servi-
tude was made the basis of discrimination in the
suffrage, the Fifteenth Amendment had no appli-
cation, and that the prohibition to modify the
constitution was entirely beyond the powers of
Congress, and was therefore void. When the Su-
preme Court of the United States was required
to consider the new clause of Mississippi's con-
stitution, it sustained the validity of the enact-
ment,^ at least so long as injustice in its
administration was shown to be possible only and
not actual. There was still one contingency that
the whites had to face in carrying out the new
policy. By the Fourteenth Amendment it is pro-
vided that if a state restricts the franchise her
representation in Congress shall be proportion-
ately reduced. There was a strong sentiment in
Mississippi, as there is throughout the South, that
a reduction of representation would not be an in-
tolerable price to pay for the legitimate extinction
of negro suffrage. But loss of Congressmen was
by no means longed for, and the possibility of
such a thing was very carefully considered. The
phrasing of the franchise clause may not have
been actually determined with reference to this
matter; but it is obvious that the application of
the Fourteenth Amendment is, to say the least,
not facilitated by the form used.

1 Williams vs. Miss., 170 U. S., 213.

THE UNDOING OF RECONSTRUCTION 38 1

The action of Mississippi in 1890 throws a
rather interesting light on the value of political
prophecy, even when ventured upon by the most
experienced and able politicians. Eleven years
earlier, Mr. Blaine, writing of the possibility of
disfranchisement by educational and property
tests, declared : " But no Southern state will do
this, and for two reasons: first, they will in no
event consent to a reduction of representative
strength ; and, second, they could not make any
disfranchisement of the negro that would not at
the same time disfranchise an immense number of
whites." How sadly Mr. Blaine misconceived the
spirit and underrated the ingenuity of the South-
erners Mississippi made clear to everybody. Five
years later South Carolina dealt no less unkindly
with Mr. Lamar, who at the same time with Mr.
Blaine had dipped a little into prophecy on the
other side. "Whenever," he said, — "and the
time is not far distant, — political issues arise
which divide the white men of the South, the
negro will divide, too. . . . The white race, di-
vided politically, will want him to divide." Inci-
dentally to the conditions which produced the
Populist Party, the whites of South Carolina, in
the years succeeding 1890, became divided into
two intensely hostile factions. The weaker mani-
fested a purpose to draw on the negroes for sup-
port, and began to expose some of the devices by
which the blacks had been prevented from voting.

382 THE UNDOING OF RECONSTRUCTION

The situation had arisen which Mr. Lamar had
foreseen, but the result was as far as possible
from fulfilling his prediction. Instead of compet-
ing with its rival for the black vote, the stronger
faction, headed by Mr. Tillman, promptly took the
ground that South Carolina must have a " white
man's government," and put into effect the new
Mississippi plan. A constitutional amendment
was adopted in 1895 which applied the "under-
standing clause " for two years, and after that
required of every elector either the ability to read
and write or the ownership of property to the
amount of $300. In the convention which framed
this amendment, the sentiment of the whites re-
vealed very clearly, not only through its content,
but especially through the frank and emphatic
form in which it was expressed, that the aspira-
tions of the negro to equality in political rights
would never again receive the faintest recognition.
Since the action of South Carolina, four other
states, Louisiana in 1898, North Carolina in 1900,
Alabama (1901) and Virginia (1902), have excluded
the blacks from the suffrage by analogous constitu-
tional amendments. By Louisiana, however, a new
method was devised for exempting the whites from
the effect of the property and intelligence tests.
The hereditary principle was introduced into the
franchise by the provision that the right to vote
should belong, regardless of education or property,
to every one whose father or grandfather possessed

THE UNDOING OF RECONSTRUCTION 383

the right on January i, 1867. This "grandfather
clause" was adopted by North CaroHna, also, and,
in a modified form, by Alabama and Virginia.
The basis for the hereditary right in the latter
states has been found, not in the possession of
the franchise by the ancestor, but in the fact of
his having served as a soldier of either the United
States or the Confederacy. As compared with
the Mississippi device for evading the Fifteenth
Amendment, the ''grandfather clause" has the
merit of incorporating the discrimination in favor
of the whites in the written law rather than re-
ferring it to the discretion of the election officers.
Whether the Supreme Court of the United States
will regard it as equally successful in screening its
real purpose from judicial cognizance remains to
be seen.

With the enactment of these constitutional
amendments by the various states, the political
equality of the negro is becoming as extinct in
law as it has long been in fact, and the undoing
of reconstruction is nearing completion. The
many morals that may be drawn from the three
decades of the process it is not my purpose to
suggest. A single reflection seems pertinent, how-
ever, in view of the problems which have assumed
such prominence in American politics since the
war with Spain. During the two generations of
debate and bloodshed over slavery in the United

384 THE UNDOING OF RECONSTRUCTION

States, certain of our statesmen consistently held
that the mere chattel relationship of man to man
was not the whole of the question at issue. Jeffer-
son, Clay and Lincoln all saw more serious facts
in the background. But in the frenzy of the
war time public opinion fell into the train of the
emotionalists, and accepted the teachings of Gar-
rison and Sumner and Phillips and Chase, that
abolition and negro suffrage would remove the last
drag on our national progress. Slavery was abol-
ished, and reconstruction gave the freedmen the
franchise.

But with all the guarantees that the source of
every evil was removed, it became obvious enough
that the results were not what had been expected.
Gradually there emerged again the idea of Jeffer-
son and Clay and Lincoln, which had been hooted
and hissed into obscurity during the prevalence of
the abolitionist fever. This was that the ultimate
root of the trouble in the South had been, not the
institution of slavery, but the coexistence in one
society of two races so distinct in characteristics as
to render coalescence impossible ; that slavery had
been a modus vivendi through which social life
was possible ; and that, after its disappearance,
its place must be taken by some set of conditions
which, if more humane and beneficent in accidents,
must in essence express the same fact of racial
inequality. The progress in the acceptance of
this idea in the North has measured the progress

THE UNDOING OF RECONSTRUCTION 385

in the South of the undoing of reconstruction. In
view of the questions which have been raised by
our lately established relations with other races, it
seems most improbable that the historian will soon,
or ever, have to record a reversal of the conditions
which this process has established.

2C

INDEX

Admission of states : Vermont,
Kentucky, Tennessee, 311 ; Ohio,
312; Louisiana, 313; Maine, In-
diana, Illinois, Alabama, Missis-
sippi, Missouri, 314; Arkansas,
Michigan, Iowa, 316; Nevada,
Nebraska, 317 ; Colorado, the
Dakotas, Montana, Washington,
Idaho, Wyoming, Utah, 318.

Alabama, part of third military
district, 144; registration in, 188;
disfranchisement in, 196; elec-
tion on ratification of constitution,
204; bill to admit representatives
of, to Congress, 210 ; restored to
full rights, 215 ; organization of
legislature in, 217; original ad-
mission to Union, 314; not equal
with original states, 350; end of
negro government in, 360; dis-
franchisement of negroes in, 382.

Amendment of the Constitution of
the United States : proposed by
Buchanan, 6; submitted by Con-
gress in 1861, 7; the Fourth, 39;
the Fifth, 40; the Thirteenth, 56,
70, 82, 93, 338 ; the Fourteenth,
116, 118, 120, 122, 222, 225, 336,
339; the Fifteenth, 227, 232, 243,
252 ; the first, 341.

Ames, General, appointed governor
of Mississippi, 156.

Amnesty, offered by Lincoln, 66;
by Johnson, 78 ; not to give right
to vote in reconstruction, 183.

Arkansas, military situation in, 64 ;
government organized in, 69 ; part

of fourth military district, 144;
registration in, 188; disfranchise-
ment in, 196; ratification of con-
stitution of, 205; act admitting to
representation, 212; organization
of legislature in, 217; original
admission to Union, 316; not
equal with original states, 350;
end of negro government in, 360.
Ashley, Representative, moves im-
peachment resolution, 255.

Bates, Attorney-General, opinion
on suspension of habeas corpus,
20.

Black, Attorney-General, opinion
on suppressing rebellion, 3.

Blaine, J. G., views on negro dis-
franchisement, 381.

Boutwell, Representative, leads in
impeachment proceedings, 271.

Buchanan, President, message of
December, i860, 2, 6; attitude
toward forts and property in the
seceded states, 9, 10.

Bullock, governor of Georgia, 223;
refuses to call special session of
legislature, 242; attitude of, on
final restoration, 246.

Butler, General B. F., treats slaves
as contraband, 49 ; introduces bill
for dealing with Georgia, 239;
disappointed as to impeachment,
257 ; leads in impeachment pro-
ceedings, 271 ; secures adoption
of article concerning Johnson's
speeches, 274; on character of

387

388

INDEX

Senate in impeachment trials,
280.

Calhoun, J. C, on sovereignty
under the Constitution, 5,

California, not equal with original
states, 350.

Canby, Major-General, succeeds
Sickles in second district, 168 ;
conducts transition to normal
relations in Virginia, 233.

Centralization, 60; in Civil Rights
Act, 93.

Chase, Chief Justice, in the Venice,
72; on opening courts in South
after the war, 84 ; on Civil Rights
Act, 96 ; on date of end of war,
129; on republican form of gov-
ernment, 133; sits in circuit at
Raleigh, 167; presides at im-
peachment of Johnson, 271 ; gives
casting vote, 283.

Citizenship, in the Civil Rights
Act, 97.

Civil rights, lost by citizens who
became insurgents, 24; of citi-
zens in loyal states, 37; freed-
men to be protected in, 91; in
Civil Rights Act, 93 ; of negroes,
protected by Freedmen's Bureau,
141 ; in Ordinance of 1787, 338.

Coercion of a state, Buchanan on,
3; Lincoln on, 11.

Collamer, Senator, on confiscation,
29.

Colorado, admission of, 318 ; not
equal with original states, 350.

Commerce, regulation of, 333.

Conditions on admission of states :
After reconstruction — Arkansas,
212; Alabama, North Carolina,
South Carolina, Georgia, Florida,
Louisiana, 214; Virginia, 235;
Mississippi and Texas, 236. At
original admission to Union, 311-
319. Classification of, 320; in

respect to public lands, 328-333 ;
in respect to navigable waters,
333; as to interstate rights of
citizens, 334-336; as to slavery,
336-338 ; as to civil and religious
liberty, 338-343 ; as to territorial
debts, 343 ; as to non-sectarian
schools, 343 ; as to negro suf-
frage, 344; as to right to hold
office, 348 ; as to school privi-
leges, 349.
Confiscation, first act, 27; second
act, 29 ; constitutional warrant
for, 30 ; international law on, 31 ;
the President on, 32; of slaves,

35.
Congress, in the winter of 1860-61,
6; on the object of the war, 13;
non-intercourse act passed, 22 ;
first Confiscation Act, 27 ; second
Confiscation Act, 29; Habeas
Corpus Act, 42 ; . abolition and
emancipation acts, 53; Enrol-
ment Act, 55; acts touching state
status, 67 ; Freedmen's Bureau
Act, 73 ; appoints joint commit-
tee on reconstruction, 86; second
Freedmen's Bureau Bill, 87 ; de-
clares war on President, 90;
Civil Rights Act, 91 ; adopts plan
of restoration, 116 ; declares Ten-
nessee restored, 120; abandons
forfeited-rights theory, 122; first
Reconstruction Act, 123 ; second,
124; third, 125; on date of end
of war, 129 ; forbids certain
punishments of blacks, 147 ; in-
terprets powers of district com-
manders as to removals and
appointments, 154 ; as to state
laws, 158 ; as to disfranchise-
ment, 182; Reconstruction Act
of March 11, 1868, 204; bill to
restore Alabama, 210; act re-
storing Arkansas, 212 ; act re-
storing the Carolinas, Georgia,

INDEX

389

Florida, Alabama, and Louisi-
ana, 215; members admitted to
seats, 222; declares Fourteenth
Amendment in force, 226; pro-
poses Fifteenth Amendment, 228 ;
requires removal of certain state
officers, 229; begins removal of
disabilities, 229; authorizes sub-
mission of constitutions in un-
reconstructed states, 231 ; act
restoring Virginia, 235 ; acts re-
storing Mississippi and Texas,
237 ; act to promote reconstruc-
tion of Georgia, 242 ; act restor-
ing Georgia, 246; acts crippling
executive, 261 ; re-enacts Ordi-
nance of 1787, 309; acts admit-
ting states, 311-320; power of, as
to compacts with states, 321 ;
as to conditions precedent, 322 ;
as to conditions subsequent,
323 ; passes Enforcement Acts
and Election Laws, 357-359;
party deadlock in, 364 ; passes
supplementary Civil Rights Act,
365 , repeals Federal Elections
Laws, 376.

Conservative Party in South, 200.

Crittenden, Senator, proposition
for compromise, 7.

Dakotas, the, admission of, 318 ;
not equal with original states,

350-

Davis, Henry Winter, on restora-
tion of states, 68.

Declaration of Independence, 15.

Delegated powers, principle of, 56.

Democratic Party, in South after
war, 200 ; success of, in elections
of 1892, 375.

Dictatorship of President in 1861,
21.

Disabilities, political, removed in
1872, 360.

Disfranchisement of negroes, in

Mississippi, 378; in South Caro-
lina and other states, 382.

Disfranchisement of rebels, in Ten-
nessee, 120; by Reconstruction
Acts, 124, 176; interpretation of
provisions touching, 179; in
constitutions alter reconstruction,
196; effect of, in Mississippi and
Virginia, 230.

District commanders, duties of,
143; assignments of, 144; difiti-
culties of position, 145 ; relation
to state officials, 148 ; policy of,
in removal and appointment of
state officers, 151 ; relation to
I state laws, 156; policy of, as to
military commissions and jury
system, 159; as to criminal law
and police, 162; as to private
law, 163; as to state finances,
170; general judgment on, 174;
practice of, in appointing regis-
tration officers, 184; in conduct-
ing elections, 190; as to freedom
of speech, 192; relations with
conventions, 194; conduct of
elections on ratifying constitu-
tions, 201 ; policy in transition
from military to permanent gov-
ernments, 218-222, 233.

District of Columbia, taxation of
citizens of, 335.

Drafts of 1862, 38.

Due process of law, meaning of,
340.

Elections, of 1862, 40 ; of 1866, 121,
123, 254; forbidden in South by
military commanders, 147; of
1867, 190; under Reconstruction
Acts, 188, 204-206; of 1868, 226;
in Virginia, Mississippi, and
Texas, 232; of 1872, 360; of
1876, 362; of 1888, 375; of 1892,
375. See also Federal Elections
Laws.

390

INDEX

Emancipation, in second session,
Thirty-seventh Congress, 28 ; by
the President, 50; by Congress,

54-

Emory, Major-General, connection
of, with impeachment of John-
son, 272.
|[^/^nforcement Acts, aim of, 357 ;
content and operation of, 358-
359 ; judgment of Supreme Court
on, 366-367.

Enfranchisement of negroes, aimed
at by radicals, 80; progress
toward, in Fourteenth Amend-
ment, 118; secured in Tennes-
see, 120; insured in South by
Reconstruction Acts, 124, 176 ;
defeated in Ohio, 190; incorpo-
rated in reconstruction constitu-
tions, 196; defeated in certain
Northern states, 227 ; why
adopted as a policy, 251.

Equality of states, germ of doctrine,
306; in constitutional conven-
tion, 310; in admitting acts, 311 ;
in debate on admission of Mis-
souri, 315; how affected by
conditions on admission, 320;
contradictory theories as to con-
stitution on, 325-327; in respect
to public lands, 333 ; in respect
to navigable waters, 334 ; in re-
spect to taxation of non-residents,
336 ; in respect to slavery, 338 ;
in respect to civil liberty, 341 ;
religious liberty, 342; as to ter-
ritorial debts, 343; as to public
schools, 344 ; as to negro suffrage,
345. 347 ; ^s to right to hold
office, 348 ; as to school privi-
leges of citizens, 349; not sus-
tainable in constitutional law, 351.

Federal Elections Laws : aim and
content of, 356, 359 ; contest over,
under Hayes, 364-365 ; attempt to

revive in 1889, 375 ; repeal of,
376.

Federalist, The, on the guarantee
clause, 131.

Florida, part of third military dis-
trict, 144; registration in, 188;
ratification of constitution in, 205 ;
restored to full rights, 214; not
equal with original states, 350;
end of radical government in,
362.

Force Acts : see Enforcement Acts.

Fraud in elections : a deliberate
policy in South, 368 ; methods of,
369-373 ; Southern confessions
of, 378.

Freedmen, status of, at end of war,
73; enfranchisement of, desired,
80; legislation concerning, by
Southern states, 92; included in
United States citizenship, 97 ;
given the electoral franchise, 124 ;
outrages on, 128, 139; complaints
against employers, 142; peculiar
punishments of, forbidden, 147;
join the Republican Party, 201 ;
political tendencies of, 355 ;
failure of, as militia, 357.

Freedmen's Bureau, establishment
of, 73; second bill concerning,
87; reports of officials of, in
1866, 139 ; judicial authority of,
141 ; political influence of, 200.

Fremont, General, 49.

Georgia, part of third military dis-
trict, 144; Governor Jenkins re-
moved, 155 ; registration in, 188 ;
disfranchisements in, 189; ratifi-
cation of constitution in, 205;
act restoring to full rights, 214 ;
Governor Bullock and the legisla-
ture, 223 ; legislature unseats ne-
! gro members, 224; senators not
I admitted to seats, 224; in presi-
1 dential election of 1868, 226 ;

INDEX

391

status of, in December, 1868,
237 ; congressmen excluded from
House, 239 ; state supreme court
decides negroes eligible to legis-
lature, 241 ; General Terry on
outrages in, 242 ; act to promote
reconstruction of, 242 ; proceed-
ings under the act, 244; final
restoration of, 246 ; not equal
with other original states, 350;
lost by Republicans, 356.

Gillem, Major-General, commander
in fourth district, 169 ; vetoes con-
vention's tax ordinance in Missis-
sippi, 174; conduct of election
in Arkansas, 205, 211.

Grant, general of the army, powers
under the Reconstruction Acts,
125 ; attitude on Congressional
policy, 145 ; on Sickles' policy,
167 ; elected President, 226 ; policy
as to unreconstructed states, 231 ;
in restoration of Virginia, 233;
recommends additional legisla-
tion as to Georgia, 242; ap-
pointed secretary of war ad
interim, 263 ; controversy with
Johnson, 265 ; suppresses Ku
Klux in South Carolina, 359 ;
refuses troops to Mississippi, 361.

Habeas corpus, suspended between
Philadelphia and Washington,
19; suspended in connection
with draft, 39; interpretation of
Constitution on, 41 ; act of 1863
touching, 42; general suspen-
sion of, 43 ; extension of juris-
diction of Supreme Court as to,
137 ; suspension of, authorized
by Ku Klux Act, 359.

Hancock, Major-General, com-
mander in fifth district, 160;
policy of, 161 ; on relief of
debtors, 169.

Hayes, President R. B. : abandons

radicals in South, 363 ; strife with
Congress over Federal Elections
Laws, 364.

Hoar, Attorney-General, opinion
on test oath, 233.

Howard, General, on administra-
tion of justice in South in 1866,
140.

Humphreys, governor of Missis-
sippi, removed, 156.

Hunter, General, 49.

Illinois, admission of, 314; not
equal with original states, 350.

Impeachable offences, what consti-
tute, 258, 275, 278, 283.

Impeachment of President John-
son, moved, 255 ; reported
against, 256, 257; voted down,
260 ; second attempt at, 265 ;
voted by House, 270; trial be-
gins, 271; the charges, 272;
Johnson's answer, 276 ; decision
of Senate that it was a court,
283 ; decision as to impeachable
offences, 283; the issue as to
power of removal, 284 ; as to
President's right to violate law,
288 ; as to construction of pro-
viso touching cabinet officers,
293; as to ad interim appoint-
ment of Thomas, 297 ; end of
trial, 299 ; votes on articles, 300-
301 ; judgment on, 302.

Indiana, admission of, 314; not
equal with original states, 350.

Intimidation, methods of in South,
361 ; Southern confession of, 378.

Iowa, admission of, 316 ; not equal
with original states, 350.

Iron-clad oath, required of ap-
pointees under military govern-
ment, 154; of jurors in Texas,
160; of members of registration
boards, 184; of officers in Vir-
ginia, 197 ; question as to, in

392

INDEX

transition from military to per-
manent government, 219; re-
quired of state officers, 229; in
transition of Virginia to full
rights, 233.

Jenkins, governor of Georgia, re-
lations with General Pope, 152;
removed, 155.

Johnson, Andrew, organizes gov-
ernment in Tennessee, 78 ; ap-
plies Lincoln's plan of restoration,
78; with modifications, 79; an-
nounces success of restoration,
82; and suppression of rebellion,
83 ; policy opposed by various
elements, 85 ; vetoes Freedmen's
Bureau Bill, 89; rupture with
Congress, 90, 253 ; impeachment
of, moved, 255; suspends Stan-
ton, 262 ; controversy with Grant,
265 ; removes Stanton, 268 ; im-
peached by House, 270 ; charges
against, 272 ; answer to charges,
276; view of proviso in Tenure
of Office Act, 295; acquitted,
300 ; appoints Schofield secretary
of war, 302.

Kansas, not equal with original

states, 350.
Ku Klux Klan, 228; in Georgia,

242; political influence of, 356;

act for suppression of, 358, 367 ;

summary procedure against in

South Carolina, 359.

Lamar, L. Q. C, views on negro
suffi-age, 377, 381.

Lincoln, President, inaugural ad-
dress of, 1861, 11; calls out mili-
tia, 16; proclaims blockade, 17;
calls for volunteers and increases
army and navy, 18 ; authorizes
suspension of habeas corpus, 19 ;
proclamation in connection with
draft, 38; suspends habeas cor-

pus generally, 43 ; Emancipation
Proclamation, 50; amnesty and
restoration proclamation, 66 ;
action on Wade-Davis bill, 68;
death of, 78.

Louisiana, government organized
in, 69; condition of, in 1866, 140;
part of fifth military district, 144 ;
removals and appointments in,
153; registration in, 188; disfran-
chisement in, 197 ; ratification of
constitution in, 205; act restor-
ing, 214 ; difficulty in transition
from military government 220;
presidential election of 1868, 226 ;
original admission to Union, 313 ;
not equal with original states,
350; incidents of radical govern-
ment in, 361 ; end of radical
government in, 362 ; disfranchise-
ment of negroes in, 382,

Loyalists in the South, 65.

Loyalty, test of, in Johnson's am-
nesty proclamation, 80; in re-
construction, 150; in members
of registration boards, 184.

Madison, James, on sovereignty
under the Constitution, 5 ; on Or-
dinance of 1787, 309.

Martial law, proclaimed as to cer-
tain persons, 39 ; Supreme Court
on, 45.

Meade, Major-General, com-
mander of third military district,
155 ; action for relief of debtors,
170; declines to "purge" Geor-
gia legislature, 223.

Michigan, admission of, 316;
boundary dispute of, with Ohio,
333; not equal with original
states, 350.

Military commissions, authorized
in connection with draft, 39;
Supreme Court on, 45; estab-
lished during reconstruction, 158.

INDEX

393

Military government in reconstruc-
tion, constitutional basis of, 127 ;
practical purpose of, 139 ; ended
in Arkansas, 213; ended in six
states, 222 ; ended in Virginia,
236, in Mississippi and Texas,
237 ; renewed in Georgia, 244.

Militia, law of 1795 on, 3, 16.

Minnesota, not equal with original
states, 350.

Mississippi, administration of jus-
tice in, in 1866-67, 139 ; part of
fourth military district, 144 ; con-
vention's action on taxes, 174;
registration in, 188 ; disfranchise-
ment in, 196; rejection of consti-
tution in, 206; removal of state
officers required, 229 ; ratification
of constitution, 233; restored to
full rights, 237; original admis-
sion to Union, 314 ; amends con-
stitution as to suffrage, 347 ; not
equal with original states, 350;
overthrow of radical government
in, 361 ; shoe-string district in,
369 ; disfranchisement of negroes
in, 378 ; new franchise clause sus-
tained by United States Supreme
Court, 380.

Montana, admission of, 318 ; not
equal with original states, 350.

Morris, Gouverneur, opposes
equality of new states, 310, 324.

Municipal governments in South
during reconstruction, 156.

Nebraska, admission of, 317 ; pro-
hibited to deny negro suffrage,
345; not equal with original
states, 350.

Necessity, doctrine of, 58.

Nevada, admission of, 317; no
slavery in, 338 ; not equal with
original states, 350.

North Carolina, part of second
military district, 144 ; registration

in, 188; disfranchisements in,
189; ratification of constitution
in, 205; act restoring, 214; ces-
sion of Tennessee, 311; not equal
with original states, 350 ; lost by
Republicans, 356; disfranchise-
ment of negroes in, 382.
Northwest Territory, ceded to
United States, 307; prohibition
of slavery in states formed from,
337-

Ohio, admission of, 312; dispute
with Michigan, 333 ; no slavery
in. 337; not equal with original
states, 360.

Ord, Major-General, commander
of fourth military district, 144;
order of, as to illicit stills, 162;
as to relief of debtors, 169.

Ordinance of 1787, adopted, 308;
re-enacted, 309; as to Michigan's
boundary, 333; as to slavery,
337; as to civil and religious
liberty, 338-342.

Oregon, not equal with original
states, 350.

Pickering, Secretary of State, re-
moved by President Adams, 286.

Pope, Major-General, commander
third military district, 144 ; policy
as to removals and appointments,
152 ; as to jury system, 159 ; as to
relief of debtors, 169 ; as to regis-
tration boards, 185 ; as to printing
patronage, 192 ; as to elections on
ratifying constitutions, 202; su-
perseded, 202.

Prisoners of state, 38.

Privateers, Confederate, treatment
of, 26.

Proclamation of the President,
calling out the militia, 16 ; estab-
lishing blockade, 17; defining
limits of insurrection, 23 ; declar-

394

INDEX

ing martial law, 38 ; suspending
habeas corpus, 43 ; Emancipation,
50 ; amnesty and restoration, Lin-
coln, 66, Johnson, 78 ; blockade,
non-intercourse and suspension
oi habeas corpus revoked, 83 ; end
of insurrection, and general
peace, 83.
Provisional governors, appointed
by Johnson, 79; character and
authority of, 113.

Radical Party in South, 200.

Rebel states, meaning of the ex-
pression, 126.

Reconstruction, joint committee
on, 86; theories as to, 100;
Southern theory, loi ; Presiden-
tial theory, 103 ; state-suicide
theory, 105, 122; conquered-
province theory, 107 ; forfeited-
rights theory, 109, 122 ; report of
joint committee on, 112; acts of
March and July, 1867, 123-125 ;
principles of these acts, 126-134 ;
attempts to overthrow the acts
judicially, 136; purpose of the
acts, 138 ; interpretation of acts
as to removals and appointments,
153; as to state legislation, 156;
provisions as to enfranchisement
and disfranchisement, 177 ; inter-
pretation as to disfranchisement,
182; first elections under, 188;
state conventions held, 193, 207;
constitutions voted on, 204-206;
states admitted to representation,
212, 215, 235, 237 ; transition from
provisional to permanent govern-
ments, 216, 236, 237; epoch in
process of, 225 ; act to promote,
in Georgia, 242; proceedings
under last act, 244; act finally
restoring Georgia, 246; general
reflections on process of, 247-
252, 353 ; conditions on states in.

319 ; what is involved in undoing
of. 354". periods in undoing of,
363. 374-

Registration boards, duties of, as
to disfranchisement, 182; quali-
fications of members of, 184;
negroes made members, 185 ;
influence on Republican Party,
186 ; results of their registration,
188.

Removal from office, discussion as
to power of, 284.

Republican form of government,
guarantee of, construed, 131-134 ;
question as to, in Georgia, 240.

Republican Party, control of Con-
gress in 1861, 21 ; continuance of
supremacy aimed at, 86, 353 ; de-
velopment in South, 186, 199;
change of attitude on negro
suffrage, 226; split in unrecon-
structed states, 230, 360; deteri-
oration of, in the South, 355 ;
extinction of, in South, 373.

Restoration of governments in the
South: Lincoln's plan, 66, 76;
Wade-Davis plan, 68 ; in Louisi-
ana and Arkansas, 69, tj; in
Tennessee, 78; Johnson's plan,
79 ; criticised, 86 ; plan of Thirty-
ninth Congress, 116.

Schofield, Major-General, com-
mander first military district,
144 ; practice as to appointments
and removals, 151; opposes
"clean sweep" of officials, 155;
attitude on jury system, 159; in
selection of registration boards,
184 ; in conducting election, 190 ;
appointed secretary of war, 302.

Secession, right of, Buchanan's
message on, 2; Lincoln on, 11;
extinction of, 62.

Separation of powers, 56,

Seward, Secretary of State, pro-

INDEX

395

claims Thirteenth Amendment,
82; abuse of, 117; proclaims
Fourteenth Amendment, 225.

Sheridan, Major-General, on con-
ditions in Louisiana and Texas
in 1866, 140; commander fifth
military district, 144 ; practice as
to removals and appointments,
153; abolishes levee board,
163.

Sherman, Senator, on Tenure of
Office Act, 294.

Sherman-Johnston agreement, 102.

Shoe-string district, 369.

Sickles, Major-General, on admin-
istration of justice in South Caro-
lina in 1866, 140; commander
second military district, 144 ;
practice as to removals and ap-
pointments, 151 ; as to jury sys-
tem, 159; as to criminal law and
police, 162 ; General Orders No.
10 for relief of debtors, etc., 164 ;
conflict with federal court, 167;
removed, 168.

Slavery, Crittenden compromise
on, 8 ; abolished in District of
Columbia and territories, 53;
meaning of, in Thirteenth
Amendment, 93; in Ordinance
of 1787, 309, 337.

Slaves, set free under Confiscation
Acts, 35 ; contraband of war, 36,
49 ; emancipated by generals, 49 ;
emancipated by President, 50;
by Congress, 54.

South Carolina, evades repudiating
war debt, 82 ; administration of
justice in, in 1866-67, 14° '. P^-^^
of second military district, 144 ;
registration in, 188 ; disfranchise-
ments in, 189 ; ratification of con-
stitution in, 205 ; act restoring,
214; amends constitution as to
suffrage, 347 ; not equal with
other original states, 350; radical

government in, 361; ballot-box
law in, 369 ; tissue ballots in, 373 ;
disfranchisement of negroes in,
382.

Sovereignty, national, Lincoln on,
12.

Sovereignty, state, Buchanan on,
2; Lincoln on, n; extinction of,
62, 304.

Stanbery, Attorney-General, inter-
pretation of Reconstruction Acts,
125; disapproves policy of dis-
trict commanders, 148; opinion
on removals and appointments,
153 ; on legislative power of dis-
trict commanders, 158 ; on
Sickles's General Orders No. 10,
167 ; on disft-anchising clauses of
Reconstruction Acts, 180.

Stanton, Secretary of War, disap-
proves Johnson's reconstruction
policy, 261 ; suspended from
office, 262; resumes office, 264;
removed by Johnson, 268; opin-
ion on Tenure of Office Act, 295 ;
relinquishes office, 301.

State, definition of, by Supreme
Court, loi.

State rights, to be unimpaired by
the war, 13 ; definition of, in re-
construction, 63; effect of the
war on, 304.

Stevens, Thaddeus, theory as to
reconstruction, 107 ; moves bills
for restoring Alabama, 210, 213 ;
disappointed as to impeachment,
256 ; leader in impeachment pro-
ceedings, 271.

Sumner, Charles, theory as to re-
construction, 105 ; on republi-
can form of government, 134;
motion in impeachment trial,
283; advocates supplementary
Civil Rights Bill, 365.

Supreme Court of the United
States, decisions of: Prize Cases,

39^

INDEX

17, 25, 71 ; Ex parte Milligan, 45 ;
The Venice, 72 ; Ex parte Qwm.-
mings and Ex parte Garland,
121 ; as to when war ended, 129;
Texas vs. White, 133 ; Mississippi
vs. Johnson, 136 ; Georgia vs.
Stanton, 136 ; £'jr/'ar/<f McCardle,
137 ; McCulIough vs. Maryland,
329 ; Van Brocklin vs. Tennessee,
330; Green vs. Biddle, 331 ; Pol-
lard's Lessee vs. Hagan, 333;
Withers t/J. Buckley, 334; Gilman
vs. Philadelphia, 334 ; Ward, vs.
Maryland, 335 ; Slaughter House
Cases, 339; United States vs.
Cruikshank, 342, 366; United
States vs. Reese, 366; United
States vs. Harris, 367; Civil
Rights Cases, 368 ; Williams vs.
Mississippi, 380.

Taney, Chief Justice, on the sus-
pension of habeas corpus by the
President, 19.

Tennessee, government restored,
78 ; representatives and senators
admitted to Congress, 120; ad-
mission to Union, 311 ; lost by
Republicans, 356.

Tenure of Office Act, passed, 261 ;
relation to Stanton, 264-266 ; held
void by President, 277; proviso
in, touching cabinet officers, 294 ;
repealed, 303.

Terry, Major-General, reports on
conditions in Georgia, 242 ; con-
ducts re-reconstruction, 244.

Texas, condition of, in 1866, 140;
part of fifth military district, 144;
governor removed, 155 ; registra-
tion in, 188 ; disfranchisement in,
196; recess of convention, 208;
removal of state officers required,
229 ; constitution completed, 230,
ratified, 233 ; restored to full
rights, 237 ; not equal with origi-

nal states, 351 ; lost by Republi-
cans, 356.

Thomas, Lorenzo, Adjutant-Gen-
eral, appointed secretary of war
ad interim, 268.

Tillman, of South Carolina, 382.

Treason, attainder of, 33.

Trumbull, Senator, on govern-
ment's rights over rebels, 34;
on Freedmen's Bureau Bill, 88 ;
on impeachment of Johnson,
300.

Union, preservation of, the object

of the war, 13.
Utah, admission of, 318 ; law as to

polygamy in, 342 ; not equal with

the original states, 350.

Virginia, consents to formation of
West Virginia, 67 : Pierpoint
government of, recognized, 78 ;
made first military district, 144;
removals and appointments in,
151 ; registration in, 188 ; disfran-
chisements in, 189 ; disfranchise-
ment clause of constitution, 196;
delay in ratification, 207 ; removal
of state officers required, 229 ;
constitution ratified, 233 ; re-
stored to full rights, 235 ; cedes
Northwest Territory, 307 ; cedes
Kentucky, 311 ; not equal with
other original states, 350 ; lost by
Republicans, 356 ; disfranchise-
ment of negroes in, 382.

Wade, Senator, on restoration of
states, 68 ; next in succession to
presidency, 255 ; disliked by
Eastern men, 260.

War powers, basis of, 15; as to
confiscation, 32 ; as to civil rights
in loyal states, 37; as to the
slaves, 49 ; principles and tenden-
cies of, 56 ; basis of Freedmen's

f

INDEX

397

Bureau, 74 ; basis of Reconstruc-
tion Acts, 128.

Washington, admission of, 318 ; not
equal with the original states, 350.

Webster, Daniel, on sovereignty
under the Constitution, 5 ; on the
guarantee clause, 132.

West Virginia, creation of, 67,

Whiskey Insurrection, 15.

Wilson, Representative, on im-
peachable offences, 275.

Wisconsin, not equal with original
states, 350.

3i|.77-2