Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER II

PRESIDENT LINCOLN'S VIEWS AND ACTS IN REGARD TO RECONSTRUCTION

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

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

Did Mr. Lincoln
have any theory
of Reconstruction?

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

Mr. Lincoln's plan.

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

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

Mr. Lincoln's oath
of allegiance, and
the loyal class to
be created by the
taking of this oath.

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

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

The proviso
in this plan.

And it is also true that there occurs in the proclamation another paragraph which appears to militate against the theory of the perdurance of a "State" through the period of its rebellion against the United States. It reads: "And it is suggested as not improper that in constructing a loyal State government in any State the name of the State, the boundary, the subdivisions, the constitution and the general code of laws as before the rebellion be maintained, subject only to the modifications made necessary by the conditions hereinbefore stated, and such others, if any, not contravening such conditions which may be deemed expedient by those framing the new State government."

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

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

Seward's idea of
Reconstruction,
and the views
of Congress and
the Court.

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

Virginia not in need
of Reconstruction
according to President
Lincoln's view.

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

Ten per centum
"State" governments.

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

Reconstruction in
Louisiana under
Mr. Lincoln's plan.

The election of
members of
Congress.

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

The New Orleans
convention.

The election of a
governor.

The constitutional
convention of
April, 1864, and
the constitution
framed by it and
adopted by the
voters.

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

The beginning
of resistance in
Congress to the
President's plan.
The Wade-
Davis bill.

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

Analysis of
this measure.

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

The President's
attitude toward
the bill.
The President's
proclamation
of July 8, 1864.

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

The Wade-Davis
protest against
the President's
proclamation.

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

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

The President's
message of
December 6, 1864.

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

The threatened schism
in the Republican
party, and the
Presidential election
of 1864.

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

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

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

No change in the views
of Congress caused by
the Presidential election.
The refusal of Congress
to count the electoral
vote from any "State"
which had passed the
secession ordinance.

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

Reconstruction
in Tennessee.

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

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

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

The twenty-second
joint rule.

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

Reconstruction in
Tennessee continued.

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

Civil government
re-established in
Tennessee.

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

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

The Thirteenth
Amendment to the
Constitution of the
United States.

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

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

The proposition of
amendment as it
came from the
Judiciary Committee
of the Senate.

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

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

The House
draft.

The Senate resolution was sent into the House on the

Rejection of the
Senate's draft
in the House.

Foreseeing the failure of the resolution at that juncture, Mr. J. M. Ashley, of Ohio, voted against the measure, although a stanch friend of

Reconsideration of
the Senate's measure
in the House, and
its final passage.

The proposed amendment was then sent to the President, who signed it, February 1st, 1865. Whereupon the Senate immediately passed another resolution, declaring that it was through an inadvertency that the measure had been sent to the President for his signature, that asking the President of the United States to sign a proposed constitutional amendment was an error, was without precedent in the practice of the Government, and that the President's approval should not be communicated to the House. A concurrent resolution was then passed by the two Houses authorizing the President to submit the proposed article of amendment to the "States" for ratification. The Secretary of State immediately sent it to the legislatures of all the "States" which could be reached by him, and during the summer and autumn to the legislatures of all the "States;" and the new legislature of Tennessee ratified it on the 5th of April, 1865, that is, more than a week before Lincoln's death.

Such was the condition of things when the assassin's bullet ended the life of the great and good President and brought the Vice-President, Mr. Johnson, into the office.