Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER VI

THE CONGRESSIONAL PLAN (Continued)

[The Reports of the Committee on Reconstruction]—[The Idea of a New Electorate as the Basis and Condition of Reconstruction]—[The Freedmen's Bureau Act of July 16th, 1866]—[The Disaffection in the Cabinet]—[The New Orleans Riot]—[The Issue of Reconstruction in the Campaign of 1866]—[The Congressional Election of 1866]—[The President's Final Proclamation Declaring the Civil War Ended—The October Elections]—[The President's Message of December 3d, 1866]—[Rejection of the Proposed Fourteenth Amendment by the Legislatures of the Reconstructed "States."]

Two days after the transmission of the Fourteenth Amendment to the "State" legislatures, the Joint Committee of Congress on

The reports of the Committee
on Reconstruction.

The majority report was an able defence of the view, that by rebellion and attempted secession the eleven "States" in which these things

The majority
report.

Based upon this doctrine, the majority report naturally vindicated the exclusive right of Congress in the work of Reconstruction, which work was virtually the admission of new "States" into the Union. It, furthermore, demonstrated that the situation in these disorganized sections was one largely of exhausted disloyalty only, and that all that the inhabitants of them had done under the President's Reconstruction policy was directed toward putting the same men in power who had led in the rebellion and toward denying civil, to say nothing of political, rights to the freedmen.

And its final conclusion was, "that Congress would not be justified in admitting such communities to a participation in the government of the country without first providing such constitutional or other guarantees as would tend to secure the civil rights of all citizens of the Republic; a just equality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who have not actively participated in the efforts to destroy the Union and overthrow the Government; and the exclusion from positions of public trust of at least a portion of those whose crimes have proved them to be the enemies of the Union, and unworthy of public confidence."

As we have seen, the proposed Fourteenth Article of Amendment had provided for all of these things, except the direct conferring of suffrage on anybody. With this exception, it had gone even further, in its provision declaratory of citizenship, and in its protection of the public debt of the Union.

The report of the minority, that is of the three Democrats, was written by Mr. Reverdy Johnson, of Maryland. It was, as a lawyer's brief, an

The minority
report.

The majority report indicated, at least, that Congress might require something more than adoption of the Fourteenth Amendment by the communities lately in rebellion before they would be recognized as having been restored to their proper relations in the Union as "States," and entitled to representation in Congress. At the moment, however, it is probable that a prompt adoption of the proposed Amendment by any of the reconstructed legislatures would have been followed by a joint resolution on the part of Congress similar to that

The idea of a new
electorate as the
basis and condition
of Reconstruction.

A few weeks later Congress scored another victory over the President, one which did much toward wiping out the defeats of February 19th and

The Freedmen's
Bureau Act of
July 16th, 1866.

The President could not, however, see much difference between them. He claimed that his objections to the first bill were valid against the

The veto of
the measure.

From the point of view of to-day it is difficult to see why the President was not right. There is no doubt that the Freedmen's Bureau

Correctness of the
President's views.

The veto of the bill was dated July 16th, and the two Houses repassed it over the veto on the same day. The new law was to be executed

The veto
overridden.

Besides Stanton, three other members of the Cabinet had showed their disaffection toward the President's policy. They were Mr. Speed, the

Disaffection
in the Cabinet.

Stanton's
attitude
toward the
President.

The President knew of this difference of feeling between himself and his War Secretary at the time of his reorganization of the Cabinet in July, and would undoubtedly have been glad to receive his resignation, but he did not ask for it. The newspapers which sustained the Administration did, however, and predicted that it would be forthcoming. The Republican leaders, on the other hand, encouraged Stanton to hold on to the office, and represented to him that the welfare of his country demanded the sacrifice of his personal feelings in the matter.

It was now generally proclaimed throughout the North that the rebel chieftains had repossessed themselves of the reconstructed "State"

The opinion and feeling
in the North concerning
the condition of things
in the South.

At this moment a horrible tragedy was enacted in New Orleans which seemed to give verification to some, if not all, of these statements.

The New
Orleans riot.

Of course, when the constitution framed by the convention was adopted by popular vote and a "State" government was set up under it, common sense and common honesty would hold that the convention had been finally dissolved, no matter how the wording of the resolution might be forced in the opposite direction. The men of "'64" saw in this wording their only chance, however, to rescue the "State" government from the hands of the amnestied electorate, and in their desperation they were determined to attempt to make use of it. A number of the members of the old convention got together informally on the 26th of June. The president of the old convention did not call them together, and he would not preside at the informal meeting. He made some trivial excuse; but there cannot be much doubt in regard to his real reason. This informal meeting then proceeded to elect a pro tempore president, Judge Howell, an office-holder under the constitution of 1864. It was this man who issued the proclamation of July 7th, reconvoking the old convention of 1864. The time appointed by him was the 30th of July at noon, and the place designated by him was the Mechanics' Institute Building at New Orleans. The men called together were the members of the old convention, but to provide for any vacancies that might have happened or might happen in the former membership of this old body, Judge Howell called on the Governor, Mr. Wells, to issue writs of election. The governor did so, and ordered an election of such delegates to be held September 3d. He thus manifested his approval of the movement.

Naturally the party of the amnestied viewed this scheme for depriving them of the "State" government by means of a new constitution, framed by a defunct convention, and certain to contain a provision for negro suffrage, with the most intense hostility. They were not placated either by being referred to the consideration that the constitution framed by this convention must be submitted to the suffrages of the existing electorate, and must be ratified by a majority of the same, before it could be put into operation. They had a suspicion that the whole thing was instigated by the wicked Republicans at the North, and that the voting upon such a proposed constitution would be controlled by them through the military of the United States Government.

They, therefore, resolved to nip the plan in the bud by preventing the assembly of the convention, or forcing it to disperse if it did assemble. The mayor of the city, Mr. Monroe, the same who was mayor when the Union army entered the city in 1862, applied to the General in command of the United States troops in Louisiana, General Absalom Baird, to know what attitude the military authorities would take toward the convention, and informed General Baird that he intended to disperse the convention if it should attempt to assemble without having the approval of these authorities. General Baird was acting for General Sheridan, who was absent from his post, and he replied with much more caution than he would probably have done had he been alone responsible. He told Mayor Monroe that he thought the Governor of the "State," rather than the mayor of the city, was the man to interfere with the assembly of a body professing to be a "State" convention, if there was to be any interference at all, and he gave the mayor to understand that his proposed course might be perilous. This was the 25th of July. Two days later the mayor went again to the General, this time accompanied by the Lieutenant-Governor, who was of the party of the amnestied. He now told General Baird that the police would not undertake to prevent the assembly of the convention, or disperse its members when assembled, but that its members would be indicted by the grand jury and arrested by the sheriff. The General seemed to think that the convention could lawfully assemble, but agreed with the mayor and Lieutenant-Governor that both he and they would request instructions from Washington.

The General applied to the Secretary of War, and the mayor applied to the President. The General informed the Secretary of the movement to assemble a convention; that it had the approval of the Governor; that the Lieutenant-Governor and the municipal authorities considered it unlawful and proposed to prevent it by arresting the delegates; that he had declared to them that he would not permit them to do this, unless the President should so instruct him; and he asked for orders, in the premises, by telegraph. The Lieutenant-Governor and the Attorney-General of the "State" informed the President of the movement to assemble the old convention; informed him that negroes were assembling, incendiary speeches were being made calling them to arm themselves, and the President was being denounced; that the Governor was in sympathy with the movement; that the matter was before the grand jury; and that it was contemplated to have the members of the convention arrested by criminal process; and they asked the President to inform them whether the military authorities would interfere to prevent the execution of the processes of the criminal court.

Secretary Stanton did not reply to General Baird's application at all. He did not even communicate the General's application to the President. He afterward explained that he did not consider that Baird's telegram required any reply. Baird had said in his despatch that he had informed the Lieutenant-Governor and the city authorities that he would not allow them to arrest the delegates and break up the convention unless instructed to do so by the President. The Secretary did not propose to send the General any such orders, or to allow any such to be transmitted to him from the President through the War Department, and so the Secretary thought it best to let the matter rest where the General had placed it. He did not know that the President had been applied to by the other side, and the President did not inform the Secretary of the despatch which he had received. The confidence between the two men had been already so largely destroyed as to prevent even consultation upon these grave subjects.

The President, on the other hand, answered the application made to him. He telegraphed to the Lieutenant-Governor that the military would be expected to sustain, and not to obstruct, or interfere with, the proceedings of the criminal court. He did not send any orders to General Baird, however. Whether the Lieutenant-Governor showed his telegram from the President to General Baird or not is not positively known, so far as the writer of these pages has been able to discover, but it is probable that he did.

It was certainly then the understanding on all sides, at least, that the "State" and municipal authorities would deal with the delegates to the convention, if they interfered with them at all, through the grand jury and the officers of the criminal court, and not through the police. This did not mean, of course, that the police should not be present in the neighborhood of the convention for the purpose of keeping the public peace. They were ordered to assemble at the stations on the morning of the 30th (July) and to bring their arms. According to General Sheridan's report to the President, the riot was occasioned by the marching of a procession of negroes, about one hundred strong and partly armed, through several of the streets to the locality of the convention. It occurred about an hour after the members of the convention had assembled. Naturally a number of people, mostly of the lower orders, gathered on the sidewalks of the streets through which the procession passed. Hooting and jeering followed. Then a shot was fired, probably by a negro in the procession. Then other shots followed and the crowd rushed after the procession, which soon arrived in front of the building in which the convention sat. Brickbats now flew from each side and the riot was in full progress when the police appeared on the scene. The procession rushed into the building, leaving a few of its members outside. One of these and a policeman came to blows, when another shot was fired, upon which the policemen began firing through the windows of the building. After a few moments a white flag was displayed from one of the windows, whereupon the firing ceased and the policemen rushed into the building. Once in the building they fired their revolvers upon the persons present indiscriminately and with terrible effect. The persons who succeeded in escaping from the building were also fired on by the police and by citizens, and many were killed or wounded. Nearly two hundred persons were killed or injured, mostly negroes, but some whites, and among them some members of the proposed convention. There were no United States troops in the city at the hour of the riot, their barracks being outside. General Baird had ordered four companies to take position near the place of the convention, but owing to the fact that he had got the impression that the convention would assemble at 6 P.M., he had ordered them to repair to the assigned position at 5 P.M. They, consequently, did not arrive until the riot was over and the convention was dispersed.

Each party considered the other the aggressor. The Republicans of the North viewed the massacre as a new rebellion, while the amnestied Southerners considered the riot the result of a justified resistance to an attempt to force negro suffrage and then negro rule upon them. It is very nearly certain that the first shot was fired by a negro, but this would not justify the wholesale massacre executed by the police. It could, therefore, be held by the Republicans with a great show of truth that the public authorities of the reconstructed "State" government of Louisiana not only would not extend the equal protection of the laws to all persons, but would themselves deprive persons even of life without due process of law.

The issue of the campaign of 1866 was thus made up. It was simply whether Congress should reconstruct the President's reconstructed

The issue of
Reconstruction
in the campaign
of 1866.

Although it was not a Presidential year, the election of the members of the House of Representatives with such a problem to deal with, and the election of "State" legislatures which would consider the question of adopting the proposed Fourteenth Amendment to the Constitution, made the canvass of 1866 a truly national one. Four National Conventions were held during the summer and early autumn, two of each party.

The Administration party led off with their great meeting in Philadelphia on the 14th of August. There were a few prominent

The National
Conventions
of the summer
of 1866.

Inasmuch as there had been a great display of harmony between the leading men of the South and the Northern delegates in the convention of the 14th of August, making it appear that the Democrats were the party of peace and reunion, while the Republicans were in favor of a continuation of the hostile status, the Southern Republicans, or as they called themselves the loyal Union men of the South, assembled in considerable numbers in Philadelphia on the 3d of September, for the purpose of conferring with the leading Republicans of the North in regard to the condition of things in the South. Such men as John Minor Botts, William G. Brownlow, George W. Paschal, Thomas J. Durant, M. J. Safford, Thomas H. Benton, Lewis M. Kenzie, G. W. Ashburn, and many more of almost equal reputation came to counsel with the leaders of the Republican party. Many of the most important of these were there, Trumbull, Greeley, Morton, Chandler, Schenck, Schurz, Matthews, Curtin, Cameron, Gerry, Speed, the ex-Attorney-General, and Creswell. These are only a few names of the eminent men who were present.

The delegates separated into two bodies, one body comprehending the representatives from the South, and the other those from the North. This was done in order to leave the Southerners free from undue Northern influence. Mr. Speed presided over the Southern assembly, and in his opening words declared the purpose of the convention to be to determine and proclaim whether the assertion of the late Confederates that their constitutional rights were being denied them in not admitting their Representatives- and Senators-elect to seats in Congress was true, or whether, on the other hand, the claim of the emancipated that their civil and natural rights were being denied them was true. He soon left no doubt upon the minds of his hearers as to his own view and belief, and he denounced the President's reconstruction work, both in principle and results, most roundly. On account of the intimate relation in which he had stood to the President as his legal adviser, and on account of the fact that he was a citizen of one of the old slave-holding "States," his words had tremendous effect in steeling the purpose of the Republicans of the North.

Under the inspiration of Mr. Speed's speech, the Southern convention framed and fulminated an address which arraigned the President as almost a traitor to his party and the Union, and as a friend of rebels and of sympathizers with rebels, described the results of his Reconstruction policy and acts as most deplorable, and urged the speedy adoption of the proposed Fourteenth Amendment to the Constitution as the only possible cure for the evils which were afflicting the country. This address made up the issues of the campaign. The dividing line of the parties now separated those who favored the adoption of the proposed Fourteenth Amendment from those who did not. The issue was simple, and the vote upon it was decisive, as we shall see.

The Administration party now attempted to divide the late soldiers, as it had attempted to divide the Republicans, with but little better effect. They got together a convention of the veterans at Cleveland, Ohio, on the 17th of September, and had the venerable General Wool preside over it. There were many good men and true present, among them Gordon Granger, Rousseau, Custer, McClernand, and Thomas Ewing; and they accused the Republicans of attempting to stir up another civil war over the question of negro suffrage, and urged their old comrades to insist that the status of peace, and all the consequences thereof, existed and must be preserved.

This movement was met on the other side by the assembly of a Republican soldier convention at Pittsburg on the 25th and 26th of September, for the purpose of upholding Congress in its fight with the Administration over the question of Reconstruction. The convention was presided over by General J. D. Cox, and a host of the most capable officers of the armies of the Union, lately disbanded, participated in its deliberations and resolves. They denounced the President's Reconstruction policy, pronounced their adherence to Congress, and declared for the adoption of the proposed Fourteenth Amendment as the indispensable measure for the re-establishment of peace, justice and union.

During the summer and autumn the orators and politicians of both parties pursued the canvass upon the basis of the doctrines put forth

The canvass of 1866.

On the 28th of August he started from Washington to go to Chicago to be present at the laying of the corner-stone of the Douglas monument. He

The "swing
around the
circle."

The President had on the 20th day of August, a week before setting out upon his tour, finally proclaimed the insurrection and Civil War at an

The President's final
proclamation declaring
the Civil War ended.

The October elections.

The Republican
triumph in the
elections of 1866.

Notwithstanding all this, however, the President, in his Message to Congress of December 3d, returned to the contest. He reargued his case

The President's
Message of
December 3d, 1866.

The President's argument fell, however, upon deaf ears. This was, it is true, the second session of the Thirty-ninth Congress, and was not,

Ineffectiveness of
the President's argument.

Rejection of the
proposed Fourteenth
Amendment by the
legislatures of the
Reconstructed "States."

The effect of this
on the temper of
the North.