Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER X

RECONSTRUCTION RESUMED

[The McCardle Case]—[The Congressional Acts Admitting the Senators- and Representatives-elect from the Reconstructed "States" to Seats in Congress]—[The Veto of these Bills by the President]—[The Vetoes Overridden]—[Ratification of the Fourteenth Amendment and the President's Proclamations Declaring Reconstruction Completed]—[Seward's Proclamation Declaring the Ratification of the Fourteenth Amendment by the Required Number of "States"]—[The Questions Suggested by Mr. Seward's First Proclamation]—[The Concurrent Resolution of Congress upon these Questions]—[The Correct Procedure]—[The National Conventions of 1868]—[Platform and Nominees of the Republican Party]—[Democratic Platform and Nominees]—[The Election and the Electoral Vote]—[The Conduct of the President during the Campaign]—[Congress and the President]—[The President's Last Annual Message]—[The President's Amnesty Proclamation of December 25th, 1868]—[The President's Veto of the Bill in Regard to the Colored Schools in the District of Columbia]—[The Fifteenth Amendment]—[Criticism of the Republican View]—[Johnson's Retirement from the Presidency]—[The President and the Republican Party].

During the period of the impeachment trial, a case was in progress before the Supreme Court of the United States, which in its final

The McCardle case.

Such a case had appeared in this Court in the winter term of 1867-68, and the argument as to the jurisdiction of the Court, and the decision of this point in the affirmative, had both been made before the impeachment trial began. One William H. McCardle, arrested and held by the military authorities in Mississippi for trial before a military commission on charge of having published in a newspaper, of which he was editor, libellous and incendiary articles, petitioned the Circuit Court of the United States for a writ of Habeas Corpus. The writ was issued, and return was made by the military commander, General A. C. Gillem, admitting the arrest and detention of McCardle, but contending that these acts were lawful. The Circuit Court, on the 25th of November, 1867, remanded McCardle, who had been held in custody between the time of the return to the writ and this date by the United States marshal, to the custody of General Gillem. McCardle then appealed from this judgment of the Circuit Court to the Supreme Court of the United States. Upon a motion to dismiss the appeal, made by the counsel of the military authorities, this Court decided that under the statute of February 5th, 1867, the Supreme Court of the United States could hear the appeal, and denied the motion to dismiss it.

The question was now before the Supreme Court upon its merits, and it involved the constitutionality of the Reconstruction Acts. It was argued very ably, and the part of the Reconstruction Acts putting the districts of the South under martial law two years after the Civil War had ended, and when the civil authority of the United States was everywhere recognized and enforced, was pretty clearly shown to have been a very serious stretching of its powers by Congress, if not a distinct usurpation. The Republicans in Congress were greatly frightened, and while the case was under advisement in the Court, they hastened to repeal the Act of February 5th, 1867, and to make the repeal apply to appeals already taken under that Act, as well as to such as might be attempted in the future. The repealing bill was vetoed by the President on the 25th of March, but it was immediately repassed by the majority necessary to override the veto, repassed without the slightest regard to the President's very sound and convincing objections. This Act of the 27th of March was intended to prevent any decision upon the constitutionality of the Reconstruction Acts, and did do so most effectively, but it was an abominable subterfuge on the part of Congress and a shameful abuse of its powers.

As will be remembered, seven of the ten Southern communities, viz., North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana, and Arkansas, had already before the close of the impeachment trial ratified the "State" constitutions framed for them by the "carpet-bag, scalawag, negro conventions" held in each for them, had elected "State" officers and legislators, and the legislature of one of them, Arkansas, had ratified the proposed Fourteenth Amendment to the Constitution of the United States, as the legislature of each of them was required to do before it could be admitted to representation in Congress.

Congress now looked upon the work of its hands and pronounced it good, and proceeded to pass the acts, necessary in its conceit, to admit

The Congressional Acts
admitting the Senators-
and Representatives-elect
from the reconstructed
"States" to seats in Congress.

Three days later, that is on the 25th, Congress provided in a single act for the admission of the Senators and Representatives from the other six reconstructed "States" to the national legislature in the following language: "Be it enacted, &c., That each of the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, shall be entitled and admitted to representation in Congress as a State of the Union when the legislature of such State shall have duly ratified the Amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as Article XIV., upon the following fundamental conditions: That the constitution of neither of said States shall ever be so amended or changed as to deprive any citizen, or class of citizens, of the United States of the right to vote in said State who are entitled to vote by the constitution thereof, herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided, that any alteration of said constitutions may be made with regard to the time and place of residence of voters." It was also further provided that the legislature of Georgia should, by solemn public act, declare its assent to the fundamental condition that the article of the new constitution of Georgia prohibiting the courts within the "State" from entertaining any suit against any resident of the "State" for any debt existing prior to June 1st, 1865, and prohibiting the judicial and ministerial officers of the "State" from executing any process in reference to such debts, should be considered and treated as null and void.

The President had placed his veto on both of these bills. The veto of the Arkansas bill bears the date of June 20th, and that of the other

The veto of
these bills by
the President.

There can be no question that the President was entirely correct in this contention. The Fifteenth Amendment was as yet no part of the Constitution. It had not even been proposed by Congress to the "States." It is very questionable whether a majority in Congress could have been found, at that time, in favor of making such a proposition, much less the required extraordinary majority of two-thirds. And until the Fifteenth Amendment had been ratified as a part of the Constitution of the United States, Congress had no power to exact such a concession, or anything like it, from any "State" as the price of the admission of representatives from it to the Houses of the National Legislature. And even since the Fifteenth Amendment has become a part of the Constitution, the Government of the United States cannot prohibit such changes in a "State" constitution, unless the deprivation of suffrage is made on account of race, color, or previous condition of servitude.

The President also called attention to the fact that no way was provided in the bills whereby the "States" should signify their acceptance of this "fundamental condition" of admission to representation in Congress, and that no penalty was prescribed for a violation of the condition. Did Congress mean that, in case of any violation of its "fundamental condition," it would throw the "State" back under martial law, and proceed to reconstruct anew? That was a question which might well be asked in view of what Congress had already done; and it was a question which was not calculated to allay uneasiness in the minds of the people in the Southern communities.

Finally, in the veto of the Arkansas bill, the President expressed his very serious doubts whether the new "State" constitution had been ratified by the electorate created by the Acts of Congress for that purpose, since a section in that constitution prescribed that no person would be allowed to vote upon the ratification of the constitution who had not previously taken an oath to the effect "that he accepted the doctrine of the civil and political equality of all men, and agreed not to attempt to deprive any person or persons, on account of race, color, or previous condition, of any political or civil right, privilege or immunity enjoyed by any other class of men," thus adding a new qualification for registration and voting to those prescribed in the Reconstruction Acts of Congress. There is no question that the President was right about this, too. And there is no question that this new qualification was entirely null and void, in so far as it applied to voting upon, and registering to vote upon, the ratification of the constitution itself, unless we ascribe constituent power to the convention which framed the constitution, instead of the power of initiation only. We know that no constitutional convention has, or then had, any such powers in our system. It was nothing more or less than a palpable usurpation of constituent power when the convention in Arkansas presumed to add this qualification to those prescribed by Congress for voting upon the ratification of the constitution itself. Of course it would have been lawful and regular for the "State" constitution to make this additional requirement for voting in all future elections, after the constitution prescribing it should have been adopted by the electorate created by the Congressional Acts, although the requirement itself would have been unreasonable and oppressive. But for the convention, a mere proposing body, to ordain this new qualification for voting on the question of the adoption of the constitution itself was a political outrage of the first order.

The vetoes
overridden.

Congress was not, however, in a state of mind to listen to any suggestions from the President, no matter how correct and important they might be. Both Houses promptly, almost mockingly, passed the two bills over the President's vetoes.

Such of the legislatures created under the new "State" constitutions as were not already in session were quickly summoned to assemble, and by

Ratification of the
Fourteenth Amendment
and the President's
proclamations declaring
Reconstruction completed.

On the 28th day of July, Mr. Seward, the Secretary of State, issued his

Seward's proclamation
declaring the ratification
of the Fourteenth
Amendment by the required
number of "States."

Eight days before this proclamation, that is on the 20th, Mr. Seward had issued a proclamation declaring that the legislatures of

The questions
suggested by
Mr. Seward's
first proclamation.

Besides the question expressed in this Proclamation, Mr. Seward indicates by his language a further question, viz., whether the six "newly-constituted and newly-established bodies, avowing themselves to be, and acting as, the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama" were genuine "State" legislatures. They were the legislatures established under the Reconstruction Acts of Congress, but as Congress had refused to recognize the "States" for whom these bodies acted as entitled to representation in Congress, that is as "States" having the rights of "States" of the Union, until after these bodies had ratified the proposed Fourteenth Amendment to the Constitution of the United States, it was no wonder that so good a constitutional lawyer and so logical a thinker as Mr. Seward had his doubts as to whether these bodies were genuine "State" legislatures.

In order to quiet these doubts, if possible, the two Houses of Congress passed on the following day, July 21st, the following concurrent

The concurrent
resolution of
Congress upon
these questions.

It will be seen that both Mr. Seward and Congress counted all of the Southern communities which had ever been "States" as being "States," making the whole number of "States" thirty-seven, and the number necessary for ratification of the amendment twenty-eight. Upon this basis of calculation two more than the necessary number had ratified at the date of Mr. Seward's final proclamation. It will also be seen that both Mr. Seward and Congress, that is that both the legislative and executive departments of the Government, ignored the attempt of Ohio and New Jersey to withdraw their consent to the amendment, and fixed the precedent in the constitutional practice of the United States that a "State" legislature cannot reconsider its ratification of an amendment to the Constitution of the United States at any time. This means, when scientifically appreciated, that the ratification of an amendment to the Constitution of the United States is not an agreement between the "States," and therefore becomes valid as to each only after three-fourths of the "States," the constitutional number necessary to make the proposed amendment a valid part of the Constitution, shall have ratified it, but that ratification by a "State" legislature, and a fortiori by a convention of the people within a "State," is only an indirect vote of a part of the people of the United States upon a question submitted to the suffrages of the whole people of the United States. When, therefore, this affirmative vote has been once officially announced by the proper authorities within the "State" to the proper authorities of the United States there is no further control over it by the authorities within the "State."

If, however, the votes of Ohio and New Jersey had not been counted in the affirmative, there was still a three-fourths majority of

The correct
procedure.

During these movements in execution of the Reconstruction Acts, the national party conventions for the nomination of candidates for the

The national
conventions
of 1868.

It made General Joseph R. Hawley, of Connecticut, its presiding officer; adopted a platform, a large part of which was devoted to

Platform and nominees
of the Republican party.

In pronouncing for the guaranty of negro suffrage at the South by Congressional law, the platform attempted to steer clear of the prejudices against negro suffrage at the North by a sort of proviso, which read, "While the question of suffrage in all the loyal States properly belongs to the people of those States." This was certainly inconsistent, not to say hypocritical. Negro suffrage at the North would have been a comparatively harmless thing on account of the fewness of the negroes as compared with the whites in that section, and on account of the superior average intelligence of the negroes of the North when compared with that of those of the South. There was no sound principle in this article of the platform. It was a mean, shuffling bit of partisan politics. The party itself felt it to be so in the course of the campaign, and came out finally for the settlement of the whole question of negro suffrage upon the same basis for the whole country and by means of a constitutional amendment.

The nominees immediately accepted their nominations in characteristic letters, that of General Grant being short, crisp, modest and ending with the now famous sentence: "Let us have peace," and that of Colfax being more lengthy and wordy and containing a rhetorical defence of some of the more questionable parts of the platform.

The Democratic convention assembled in New York on the 4th day of July. It was confronted at the start with the Greenback heresy, and the

Democratic
platform and
nominees.

There is no question that the platform of the Democrats, with its paper money doctrine, and its hostility to Reconstruction and universal

Weakness of
the platform.

Seymour finally yielded, and the convention addressed itself to the nomination of its candidate for the vice-presidency. The ex-Confederate

The nominees.

On the other hand, the bland, politic and persuasive Seymour pursued a much more moderate and conciliatory course, and when it became evident that General Blair's violent expressions and revolutionary purposes were ruining the Democratic prospects at the North, he went into the campaign personally, and by his diplomatic manners and fine oratory succeeded in stemming the tide which, running against the Democrats from the moment when their platform was proclaimed, had been driven on to a flood by General Blair's indiscretions, to put it very mildly, in speech and conduct. But while some lost ground was regained, it was evident that the hopes of the Democrats had been blasted.

The electoral votes of thirty-four "States" were counted, Virginia, Mississippi and Texas being still regarded by Congress as

The election and
the electoral vote.

Meanwhile the President had continued to ply the Congress with his vetoes and messages and to address the country with his proclamations.

The conduct of
the President
during the
campaign.

But the Congress was not then in a mood to hear anything from Mr. Johnson. Two days later, July 20th, the President vetoed the joint

Congress and
the President.

On the 9th of December President Johnson sent his last annual Message to Congress. It was a grave, dignified and statesmanlike document both

The President's last
annual Message.

Only once again did the Congress break over its apparent resolve to ignore the President, and that was upon the occasion of his issue of

The President's
amnesty proclamation
of December 25th, 1868.

As a sort of final stroke the President vetoed the bill concerning the transfer of the control of the colored schools in the District of

The President's veto of
the Bill in regard to the
colored schools in the
District of Columbia.

On its side it was busy with a project which, though not intended as a blow at him particularly, was not in accordance with his view that the

The Fifteenth Amendment.

It is certainly true that full freedom implies civil liberty and civil equality, but there was another way, and a better way, to have secured

Criticism of the
Republican view.

This proposed Fifteenth Amendment was not sent to the President for his approval, but went, according to custom, to the Secretary of State, to

Johnson's retirement
from the presidency.

And yet it is certainly true that the Republican party had left him rather than that he had left the party. This party began simply as a

The President and
the Republican party.

No fair mind can claim that the Republicans in their quarrel with the President had not departed from their solemn declaration made in Congress assembled in those dark July days of 1861, just after the first great defeat of the Union arms, "That this war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of the Southern States, but to defend and maintain the supremacy of the Constitution, and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired." And it was upon the basis of this understanding that the Democrats in Congress, Mr. Johnson among them, stood with the Republicans in the prosecution of the war. It is indeed a serious question of political casuistry as to how far declarations of policy are binding upon a political party. They are certainly not like agreements entered into between sovereign states, and the law of development rather than the law of contract must be the constructive force in party creed. But this, at least, must be held, viz., that a man originally not of a given political party, but acting with it upon the basis of a given creed, cannot be accused of being an apostate from that party if he does not continue with it when it adopts a new creed in many respects the very opposite of that given creed, except in the most groveling sense of machine politics; and that when he and it do part company, more by its own departures from the given creed than by his, he is certainly not on that account to be necessarily considered as a traitor to his country. The truth is, that while all men who occupy high station are peculiarly subject to wanton, as well as ignorant, assaults upon their purposes and their conduct, few men that have occupied so high a station have ever been so unreasonably slandered and vilified as Andrew Johnson. His own unfortunate and irritating manners and methods will account for a good deal of the misunderstanding of his character, but the violence of the times was the occasion of a great deal more of it. The true Union men of Tennessee will, however, never forget the hope, and encouragement, and support which he gave to them, when they were left in the lurch by their own natural leader, John Bell; and the Nation should for this, if nothing else, write his name in the book of its heroes.