Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER V

THE CONGRESSIONAL PLAN (Continued)

[The Freedmen Codes in the South]—[The Reports of Grant and Schurz in Regard to the Status in the South]—[The Freedmen's Bureau Bill of 1866]—[The President's 22d of February Speech]—[The Civil Rights Bill]—[The Veto of the Bill]—[The Veto Overridden]—[The Fourteenth Amendment]—[The Discussion of the Propositions in Congress]—[The President's Attitude toward the Proposed Amendment]—[Mr. Seward's Acts in Regard to Ratification]—[The Requirement that the Ratification of the Proposed Amendment should be the Condition of the Admission of the Senators- and Representatives-elect to Seats in Congress]—[The Tennessee Precedent].

We have reviewed the acts of the new legislature of Mississippi concerning the civil status of the freedmen. It is sufficient to say

The Freedmen codes
in the South.

The President had sent General Grant and General Carl Schurz on tours of inspection and inquiry through the South, during the late summer and

The reports of Grant
and Schurz in regard to
the status in the South.

Mr. Schurz, on the other hand, reported that his conclusions from his observations were that there was no loyalty among the leaders and the mass of the people in the South, except such as consisted in submission to necessity; that they were consciously attempting in their new legislation to establish a new form of slavery, distinct only from the old chattel slavery; and that this could be prevented only by national law and national control, at least for many years to come.

General Grant's visit had been a flying one, and his inquiries upon the subject were secondary only to his other business. On the other hand, General Schurz had journeyed deliberately, and his inquiries were the chief, if not the sole, purpose of his visit. Moreover, General Schurz was a keener observer in regard to such matters than General Grant, and a much better reasoner.

Despite, therefore, the great popularity and influence of General Grant, Congress was inclined to place more credence in the report of

The attitude of
Congress toward
the reports.

The first measure it attempted was one to enlarge the powers of the Freedmen's Bureau. This supplementary project originated with the

The Freedmen's
Bureau bill of 1866.

First, While the law of March 3d, 1865, provided for the appointment of a commissioner and ten assistants as the entire personnel of the Bureau, the new bill authorized the appointment of a commissioner, twelve assistant commissioners, and the appointment or detail of an agent for each county or parish throughout the section where the Bureau might operate.

Second, While in the law of March 3d, 1865, the Bureau rather appeared to be under the civil administration of the President, the new bill placed it distinctly under the military administration of the President, and authorized the President to extend "military jurisdiction and protection over all of the officers, agents, and employees of the Bureau."

Third, While the law of March 3d, 1865, confined the powers of the Bureau to the giving of aid to refugees and freedmen and the distribution of abandoned and confiscated lands among them, the new bill proposed, in addition to this, to vest in the Bureau the power to build school houses and asylums for the freedmen, and the most wide-reaching jurisdiction over all civil and criminal cases where equality in civil rights and status, and in the application of penalties, was denied, or the denial thereof attempted, on account of race, color, or previous condition of servitude; and it authorized military protection in all such cases to be extended to the suffering party. In a single sentence, this bill provided a sort of palatine jurisdiction over the freedmen in the section lately the scene of rebellion.

It was a stiff measure even for the transition period from war to peace. It cannot be justified constitutionally as anything but a war measure. It is true that the Thirteenth Amendment, just adopted, could be interpreted as giving Congress the power to prohibit inequalities in civil rights and in criminal punishments, as the incidents of slavery or involuntary servitude, and to extend the ordinary jurisdiction of the constitutional courts of the United States over all cases where the attempt to apply such inequalities should be made. But it certainly did not give Congress the power, under any ordinary circumstances, to create a new system of courts, subject to the Executive, officered by military men, and armed directly with military power to enforce decisions. It was, as has been said, a war measure, and nothing else. The question was reduced simply to this: Ought the Congress of the United States to enact a new war measure, after armed resistance had ceased everywhere, except perhaps in some parts of Texas? Was it sound policy, was it good morals, to do so, when the people in the sections lately in rebellion were settling down into the pursuits of peace, even

The passage
of the bill.

On the 10th of February (1866) it was sent to the President for his signature. In a Message, dated the 19th of February, the President put

The veto
upon it.

For this once the President's arguments convinced enough of the Senators to deprive the bill of the support of the necessary majority

The veto
effective.

On the evening of the 22d of February, three days after his successful veto, the President made a most important speech from the steps of the

The President's 22d
of February speech.

As a part of the same plan for securing the civil rights of the freedmen against the hostile legislation of the President's

The Civil
Rights Bill.

The purpose of it was simply to establish equality in the enjoyment of civil rights for all citizens of the country and to make all persons born in the country and not subject to any foreign power citizens. The substantial part of the bill, as perfected, read: "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom, to the contrary notwithstanding."

This is simply equality for all before the law. It conferred no political privilege and no social equality. It was fairly within the power of Congress to pass such a measure, by interpreting broadly the Thirteenth Amendment, without having any recourse to the idea of war powers. Slavery was nothing but extreme inequality in civil rights between master and servant. The prohibition of slavery and involuntary servitude could, therefore, most certainly be held to be the prohibition of all of these incidents.

The remaining provisions of the bill did nothing more than fix penalties for violating, or attempting to violate, civil equality as thus defined, designate the officers charged with the duty of prosecuting the offenders, and establish the jurisdiction for the trial of such cases.

The penalties were somewhat grave. They might be as severe as a fine of one thousand dollars, or imprisonment for a year, or both, in the discretion of the courts. But they were not cruel or unusual, and were, therefore, within the power of Congress to prescribe. The officers authorized and required to institute proceedings against violators of the law were the district attorneys, marshals and deputy marshals of the United States courts, the commissioners appointed by the Circuit and Territorial courts of the United States, the officers and agents of the Freedmen's Bureau, and every other officer whom the President might see fit to empower thereto. And the jurisdiction established for the trial of such cases was that of the United States courts, upon which was conferred original and exclusive jurisdiction in any case under the law, and to which any case touching these subjects commenced in a "State" court could be removed on motion of the defendant. But all these things were authorized by a liberal construction of the Thirteenth Amendment, which expressly vests in Congress the power to make all laws necessary and proper to enforce the prohibition of slavery throughout the whole country.

It was, indeed, a great change in the system of the jurisprudence of the United States that the central Government should define and protect

The measure sound
from the points of
view of modern
jurisprudence and
modern political
science.

On the 27th of March, he sent his veto of the bill into the Senate. It was a weak argument throughout. He objected to making the freedmen

The veto
of the bill.

Now all this was easily answered from the point of view which Congress and the North had now firmly taken, viz.: that the eleven former "States" in which rebellion had for so long prevailed were not "States," although the territory formerly occupied by them, and the population formerly inhabiting them, were within the United States and were subject to the jurisdiction of the central Government; that the rebellion had demonstrated that the central Government must be intrusted with a large increase of powers in protecting civil equality and civil liberty; and that the sovereign Nation had willed this in the enactment and adoption of the Thirteenth Amendment to the Constitution.

Really there was but one thing in the bill susceptible of successful criticism, and that could be explained so as to avoid it. It was the

Criticism
of the bill.

The President most decidedly lost his chance of rehabilitating himself with his party, and leading it in the work of Reconstruction, by not

The
President's
blunder.

The veto
overridden.

While, as we have seen, the President did not exactly deny the constitutionality of the bill, the Democrats in Congress, and the

The Fourteenth
Amendment.

In the first place, it was seen that the emancipation of the slaves would increase the representation in Congress and in the Presidential electoral college from the old slave "States" by two-fifths whenever the Southern communities should be recognized as "States" again, and that too without the admission of the emancipated persons to the exercise of political suffrage. It was certainly to be apprehended that, with such increased representation, the Southern members and the Northern Democrats would constitute a majority in Congress and in the electoral college, and might proceed not only to repeal the Civil Rights Act, and all acts in behalf of the freedmen, but also to throw the Confederate debt or a part of it upon the United States, or establish pensions for Confederate soldiers, or even repudiate the debt of the Union made in defence of its own life. While the danger of these things was, probably, somewhat exaggerated, still it would not have been becoming for men of prudence and patriotism to have failed to provide against them. Really there was but one thing to do, and that was to enact, and secure the adoption of, another amendment to the Constitution covering these points, while the power to do so still existed.

It would be an agreeable thing to the writer of this period of American history, were he able to record that the principal matter which

The political
provision in
the proposed
Fourteenth
Amendment.

It was Monday, April 30th, before the Committee was ready to report the entire article, which took the name of the Fourteenth Amendment to the Constitution. The article as presented to the Houses of Congress by the Joint Committee on that day read as follows:

"Sect. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"Sect. 2. Representatives shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.

"Sect. 3. Until the 4th day of July in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice-President of the United States.

"Sect. 4. Neither the United States nor any State shall assume or pay any debt or obligation already incurred, or which may hereafter be incurred, in aid of insurrection or war against the United States, or any claim for compensation for loss of involuntary service or labor.

"Sect. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article."

The chief difficulties with these provisions were, first, that they did not define who were the citizens of the United States; second, that

Defects in the
first draft of the
Amendment.

The discussion in Congress upon these provisions lasted through the month of May and well into June. At last in the second week of June,

The discussion of the
propositions in Congress.

The first section had been modified by the incorporation into it of a sentence which defined citizenship of the United States. It reads: "All

The final draft
agreed upon.

The language of the second section had been revised so as to make its meaning more clear, but it had not been changed at all as to its meaning. It reads in its perfected form: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

For section third, denying suffrage until 1870 to all persons who had given aid voluntarily to the rebellion, Congress had substituted an entirely new resolution, which rendered the Confederate chieftains ineligible to office instead of disqualifying the rank and file for suffrage. It reads as follows: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, 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 Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability."

This was certainly a wise change. It certainly could not be contended that disqualifications for holding office and legislative mandate violated any so-called natural right. It was better that whatever punishments of a political nature might fall upon the Confederates should strike the leaders, rather than the followers. And it was not a severe punishment which required that, for a time at least, the people inhabiting the communities lately in rebellion should choose as their representatives to the National legislature and to the Presidential electoral college, and as their "State" officers, men not identified with the rebellion so closely as to have been among its leaders. It is difficult to see how the Confederate leaders could have been required to suffer less, and have been rebuked at all for their acts.

Finally, section four was supplemented by a sentence which declared that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." The last words of the section were also somewhat modified in the direction of greater emphasis, but the meaning remained the same. As thus perfected, the section declared the validity of all the existing obligations of the United States, and repudiated all obligations whatsoever assumed in aid of rebellion, and all claims for the loss or emancipation of any slave. This covered the ground completely in regard to the security of the public obligations of the United States both from the positive and negative side, and it prevented both Congress and the "States" from ever recognizing, in the future, the claim for any relief from the natural consequences of unsuccessful rebellion, and the right to any compensation for deprivation of property in man.

As Congress passed these propositions by the necessary two-thirds majority they were not submitted to the President at all, it being considered that his disapproval, if given, would avail nothing against such a majority. This has been the custom from the first in Congressional propositions of amendment, and it is now too late to dispute its regularity. But it is easy to see that the President might support a veto of such propositions by such reasoning as to make it at least possible that sufficient votes might be changed from affirmative to negative upon them, to finally defeat them; and it is certainly true that the Constitution requires that every bill, order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President and is subject to his approval or veto, no matter by what majority it may have been passed.

However, President Johnson had no opportunity to express himself officially or make himself officially felt in regard to this Amendment.

The President's attitude
toward the proposed
amendment.

Mr. Seward issued his notification of the passage of the amendment by Congress to the "State" legislatures for their ratificatory action on

Mr. Seward's
acts in regard to
ratification.

On the other hand, the Reconstruction Committee of Congress had reported a bill along with the Article of Amendment, which virtually

The requirement that
the ratification of the
proposed Amendment
should be the condition
of the admission of
the Senators- and
Representatives-elect
to seats in Congress.

No matter how it might have been stated, it was an absurdity. The true theory on this point was that held by Mr. Stevens, viz., to consider

The absurdity of
the condition.

The amended Constitution would then have the same power over them as if the Amendment had been ratified by them. In fact, their petition for admission or recognition as "States" of the Union with the amended Constitution would imply their assent to the Amendment as well as to every other part of the Constitution. The more moderate Republicans feared that the Southern communities would not feel obligated by a Constitution amended in this way. It is difficult to see why they should not. The Southern statesmen knew that Congress had no power under the Constitution to require of new "States" obedience to anything as a condition of their admission to the Union, but the Constitution as it was at the moment of their admission. Looked at from the point of view of the present, it would certainly appear that the exaction of such an unlawful promise, imposing such a degrading discrimination, would have been far more exasperating than anything else which could have been invented or imagined.

Enough of them saw this to prevent Congress from enacting the bill proposed by the Reconstruction Committee into a law, and when the proposed Amendment went to the legislatures of the "States," there was no requirement attending it which appeared to deprive any legislature, or body claiming to be a legislature, of its discretion in dealing with the subject.

As a matter of fact, however, the legislature of Tennessee ratified the proposed Amendment within about a month after receiving the Article

The precedent set
by Tennessee.

These proceedings made it certain that, while Congress had failed to pass any formal act making the acceptance of the proposed Fourteenth

The Tennessee
precedent.

The President signed the resolution, but accompanied the same with a short message in which he made a rather telling criticism upon the

The President's message in
regard to the rehabilitation
of Tennessee.