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/