Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER XI

PRESIDENT GRANT AND RECONSTRUCTION

[The Situation at the Moment of Grant's Accession to Power]—[The Georgia Question]—[The Attitude of the New President toward Reconstruction]—[The Virginia Case]—[Grant's Message to Congress of April 7th, 1869, and His Proclamation of May 14th]—[Ratification of the Virginia Constitution and Election of "State" Officers under it]—[The Restoration of Virginia to Her Federal Relations]—[Ratification of the Mississippi Constitution and Election of "State" Officers and Legislative Members under it]—[The Restoration of Mississippi to Her Federal Relations]—[Ratification of the Texas Constitution and Election of "State" Officers and Legislative Members under it—Restoration of Texas to Her Federal Relations]—[Grant and the Tenure-of-Office Act]—[Congress and the Tenure-of-Office Act after Grant's Accession to the Presidency]—[The Modification of the Tenure-of-Office Act]—[The President's Dissatisfaction with the Measure]—[The Facts in the Georgia Case]—[New Conditions Imposed on Georgia]—[The Final Restoration of Georgia to Her Federal Relations]—[Negro Rule in the South from the Point of View of Political Science and Ethnical Principle].

At the moment of Grant's accession to power, four of the Southern communities were still denied recognition as "States" upon the floor of

The situation at the
moment of Grant's
accession to power.

When the news of this procedure reached Washington, the Senate held back from admitting the Senators-elect from Georgia to seats and did

The Georgia
question.

In his inaugural Address the new President made no reference to these questions, but he had hardly been one month in the presidential office

The attitude of the
new President toward
Reconstruction.

The President also suggested that the constitution framed by the convention in Mississippi and rejected by the voters might be resubmitted in the same way. The events in Mississippi culminating in the rejection of the proposed State constitution by the voters in June of 1868 have been already related.

The case of Virginia, on the other hand, which differed in several material respects from that of any of the others, has not been as yet

The Virginia case.

For more than a year, however, this government continued to act as the "State" government of Virginia, under the limitations placed upon it by the presence of the military of the United States, and the interference of the commanding general in behalf of the freedmen. On January 15th,

The Vagrant Act.

General Terry's
order setting
aside the
Vagrant Act.

Congress, however, gave this legislature one more opportunity to redeem itself. The proposed Fourteenth Amendment to the Constitution of the United States was submitted to it for ratification in June of 1866. After long deliberation upon it, the legislature rejected it on the 9th of January, 1867. This act sealed the fate of that legislature. Virginia was brought, with the other Southern communities which had rejected or not adopted the proposed Amendment, under the Reconstruction Acts of March, 1867, and became the first military

Virginia made a
Military District.

It was in consequence of such representations and prayers, that President Grant sent his message of April 7th to Congress, requesting

Grant's message to
Congress of April
7th, 1869, and
his proclamation
of May 14th.

Ratification of the
Virginia Constitution.

At the election ordered by the President, the constitution without these clauses was ratified, and the conservative Republican candidates for office and legislative membership were elected.

At the next session of Congress, in December of 1869, the Senators and Representatives presented themselves for admission. Their claims were

The restoration of
Virginia to her
Federal relations.

The Act of Congress of April 10th empowered the President to deal with the question of Reconstruction in Mississippi in the same manner as in Virginia. By virtue of this power, the President issued a proclamation, on the 13th of July, 1869, commanding the resubmission to the voters of the constitution adopted by the Mississippi convention, on the 15th of May, 1868, and rejected by the voters as stated on a previous page, and designating the 30th day of November, 1869, as the date of the

Ratification of the
Mississippi constitution.

The result of the vote on the constitution was the same as in Virginia.

The restoration of
Mississippi to her
Federal relations.

The Act of April 10th, 1869, also invested the President with the power of ordering the submission of the constitution framed and adopted by the convention at Austin, Texas, in June of 1868, to the voters for ratification. By virtue of this authority, the President ordered a vote to be taken upon this instrument on the 30th day of November, 1869. This proposed constitution did not contain any such disfranchising and disqualifying clauses as those which rendered the Virginia and Mississippi instruments obnoxious to the intelligence of these

Ratification of the
Texas Constitution.
Restoration of
Texas to her
Federal relations.

Thus while the new President did not, as his predecessor had done, dispute the power of Congress to direct and control the reconstruction of the disrupted Southern communities as "States" of the Union, he appealed to Congress for the authority to relieve some of them still suffering under military rule from the hard alternative of negro domination, and when Congress gave him the power requested, he used it for the amelioration of the situation. This was true statesmanship. If President Johnson had done this instead of insisting upon his constitutional power to reconstruct, independently of Congress, these communities, and repeating continually his unsound, though specious, arguments in support of his view, it is quite possible that he might have maintained his influence, in some degree at least, with the Republican majority, and at the same time, and in consequence thereof, might have accomplished something in the interest of a true conservatism in Reconstruction. This is not, however, certain. Johnson had none of Grant's vast popularity with the people of the North whereby to overawe Congress, and there is no doubt, deny it as we may to conscious reflection, that down below consciousness there was a sort of distrust of a Southern Union man on the part of a large portion of the people of the North. Mr. Johnson had to suffer under the influence of this feeling, like all others of his class, and whenever he suggested any moderate course in the treatment of former rebels, he fell under the suspicion of masking sympathy with their sentiments under a pretence of Unionism. He was, thus, rather an object of Congressional distrust from the first, and could probably never have done so much as Grant succeeded in doing for conservatism in Virginia and Mississippi, even though he had recognized the power of Congress in the work of reconstruction, and had preferred respectful requests, instead of asserting presidential prerogatives.

Likewise the new President found, as soon as he began the work of administration, that the Tenure-of-Office Act was an unendurable

Grant and the
Tenure-of-Office Act.

On the 9th day of March, less than a week after the accession of the new President to power, a bill was introduced into the House of

Congress and the
Tenure-of-Office Act
after Grant's accession
to the presidency.

It was pretty clear that the President would not find any trouble with such a measure as this, but it seemed to the House that the Senate was trying to cling to a certain control over the Executive, and the House refused concurrence in the bill. The matter was finally referred to a

The modification of the
Tenure-of-Office Act.

The President's
dissatisfaction
with the measure.

Still the President was not satisfied with it. He thought that any control whatever of the Senate over dismissal from office was not warranted by the Constitution, and he regarded the attempt of the Senate to cling to any shadow of such a power as a personal affront to himself.

In his first annual Message, that of December 6th, 1869, he earnestly recommended the total repeal of the Tenure-of-Office Acts, and declared them both unconstitutional, and inconsistent with "a faithful and efficient administration of the Government." His recommendation was probably an effective warning to Congress against any attempt to hamper him by claiming any power under them to control his dismissals and suspensions, but they still remained on the statute book for nearly two decades longer. The glaring inconsistency of a bare and bald repeal of the Acts was too great even for the partisan Congress. It was willing to make them practically null and void, but it wanted a shadow with which to cover its nakedness. At any rate, the position taken by President Grant toward them was a complete vindication of President Johnson's views concerning them, and, in no small degree, of his deeds also.

At the date of this Message all of the Southern communities had completed the acts required by Congress for their restoration as "States" of the Union, but the result of the elections held in Mississippi were not known in Washington. The President simply expressed the hope that the constitutions submitted in these communities to the voters would be ratified, and "thus close the work of Reconstruction." As we have seen, the elections resulted as the President hoped, and these communities were restored, on the basis of the "State" constitutions adopted, to their proper federal relations.

The case of Georgia still remained, however, unsettled, and the President suggested that Congress should enact a law authorizing the

The facts in the
Georgia case.

A bill had been introduced into Congress soon after the opening of the session beginning March 4th, 1869, dealing with the subject. It was claimed in the preamble of this bill that the Georgia legislature had not purged itself of disloyal members as required by the Fourteenth Amendment to the Constitution of the United States, that it had violated the constitution of Georgia and the Constitution of the United States and the fundamental principles of the Reconstruction Acts by expelling the negro members for ineligibility, and that the civil authorities in the "State" could not, or did not, protect the loyal citizens in the enjoyment of their rights and liberties or even in their persons. The bill proposed to meet these difficulties by providing that the Governor of Georgia should reconvene the originally elected members of the legislature, reseat the expelled negro members, and expel such members as could not swear that they were not disqualified by the Fourteenth Amendment to the Constitution of the United States. It may be remarked here in passing that the Fourteenth Amendment does not disqualify anybody, in express language, from being a member of a "State" legislature. It disqualifies all persons who have engaged in rebellion after having taken an oath, as a member of Congress or of a "State" legislature, or as a United States or a "State" officer, to support the Constitution of the United States, from holding a seat in Congress or from being an officer of the United States or of a "State," but not from holding a seat in a "State" legislature. The word officer in the public jurisprudence of this country does not include membership in a legislative body. But to return to the bill. It provided finally for making United States troops in Georgia subject to the Governor's call for assistance. This bill was so seriously opposed by the Democrats and the conservative Republicans that it did not pass, and during this session Congress did nothing further for the restoration of Georgia.

On the other hand, the conservatives in Georgia undertook to do something for themselves. They got up a test case in the Supreme Court

The case of
White and
Clements.

It was then with a good deal of irritation that Congress came to consider the subject of Reconstruction in Georgia again in the session

New conditions
imposed on Georgia.

So great was the opposition to Reconstruction, under these hard conditions, on the part of the white people in Georgia, that the

Resumption of military
government in Georgia.

The legislature as thus reconstructed was approved by the military authorities, and it now proceeded to fulfil the final condition

Ratification of the
Fifteenth Amendment by
the Georgia legislature.

This purified legislature now elected United States Senators, both of them Republicans, of course. All these things were done in the latter

Further delay in
the admission of
representatives
from Georgia.

This language was at once taken to mean that Congress would undertake to empower the legislature of Georgia to extend the terms of the members of the Georgia legislature and of the Governor, elected in April of 1868, by two years, on the ground that the "State" government of Georgia was still provisional, and would so remain until the passage of this Act, and that these terms would, therefore, not really begin until the passage of this Act. The conservative Republicans as well as the Democrats repudiated this interpretation of the powers of Congress to extend, or to authorize the "State" legislature to extend, the terms of the members of the legislature and of "State" officers as an unprecedented usurpation. Some of them repudiated the idea that there could be a provisional "State" government, and declared that any further legislation in regard to the reconstruction of Georgia was unnecessary, since the Act of June 25th, 1868, had restored Georgia to her position as a "State" of the Union, along with North Carolina, South Carolina, Louisiana, Alabama, and Florida, upon certain conditions, all of which Georgia had fulfilled, just as the others had done, and since all the others had been admitted to the enjoyment of all of their rights and privileges as "States" of the Union without any further legislation than the Act of June 25th, 1868.

There is no doubt that the Butler amendment meant, and was intended by its author to mean, just what was charged by the conservatives. General Butler at last acknowledged and avowed it, and attempted to justify it. But he was unable to rally a majority to sustain it, and he withdrew it in the face of an amendment offered by Mr. Bingham on the 7th, which provided that nothing contained in the bill should be construed either to vacate any of the "State" offices in Georgia, or to extend the terms of the present holders of them beyond the time provided in the "State" constitution, or deprive the people of Georgia of the right under their "State" constitution of electing members of their legislature in the year 1870.

This amendment was passed on the 8th of March, and the bill as thus amended was passed by the House of Representatives, and sent to the Senate on the same day. It was immediately referred to the Judiciary Committee of that body and on the next day, the 9th, it was reported back to the Senate by this committee, without amendment. The Senate now considered it in committee of the whole from this time to April 19th, and when it was reported to the Senate it had been changed to a bill which declared the existing government of Georgia to be provisional and subject to the provisions of the Reconstruction Acts of 1867; ordered an election in Georgia on the 15th day of November, 1870, for members of the "State" legislature as provided for in the "State" constitution of 1868; ordered the assembly of this legislature on the 13th of December, 1870, and its organization preparatory to the admission of the "State" to representation in Congress; declared that the powers and functions of the members of the existing legislature should cease on the 13th day of December, 1870; and made it the duty of the President of the United States, in case of domestic violence in any municipality in the "State," reported to him by the legislature or Governor of the State, to suppress by military power such domestic violence, and "to exercise all such powers and inflict such punishments as may by the laws, or the rules and articles of war be exercised or inflicted in case of insurrection or invasion." The Senate concurred in the recommendations of the committee of the whole, and added a provision repealing that part of the Act of March 2d, 1867, which prohibited the organizing of any militia force in Georgia.

In this form and with this content the bill was returned to the House. Here it was again debated, off and on, until June 24th, when it was

The final restoration
of Georgia to her
Federal relations.

The Senate disagreed to the bill in this form and with these contents, and asked for a conference committee. The House agreed and appointed members. The conference committee agreed upon the bill as perfected by the House with the addition to the second section of these words: "And nothing in this or any other Act of Congress shall be construed to affect the term to which any officer has been appointed or any member of the general assembly elected, as prescribed by the constitution of the State of Georgia." Both the Senate and the House accepted and concurred in the recommendations of the committee, and the bill, as thus perfected, became law on the 15th day of July, 1870. This bill terminated the era of Reconstruction legislation by Congress, and at the next session of Congress, the session of 1870-71, the Senators and Representatives from Georgia were admitted to their seats, the Senate admitting those chosen to that body in July of 1868, Messrs. Hill and Miller. The attempt of Governor Bullock to prolong the terms of the members of the legislature and of the officers of the "State" government was decidedly disapproved of by President Grant's Administration, and an election was held for members and county officers and for Representatives in Congress in December of 1870. The white residents of the "State" stood well together, and carried the election by a large majority against the Republicans. So soon as the result was known Governor Bullock, whose term had still two more years to run, abandoned his office and left the "State," and Georgia was thus early rescued from negro domination, or rather "carpet-bag" domination through negro suffrage. Her harder experiences during the years from 1868 to 1870 had worked out to her advantage, in that it brought the respectable and capable portion of her white citizens together earlier than was the case in the other reconstructed Commonwealths similarly situated.

From the point of view of a sound political science the imposition of universal negro suffrage upon the Southern communities, in some of which the negroes were in large majority, was one of the

Negro rule in the
South from the point
of view of political
science and
ethnical principle.

Opposition to military government in time of peace was an ingrained principle of the American people, and there was a large part of people of the North, nearly all adhering to the Republican party, who believed that manhood suffrage was the true principle of a sound political science. And it was thought that the only way of creating "States" in the South which would sustain the Republican party was by giving the negro the suffrage. It is not surprising, then, that they adopted the course which they did. There was a third alternative, as has already been pointed out, viz., the placing of these communities under Territorial civil government and keeping them there until the spirit of loyalty to the Nation was established and the principle and practice of civil equality among all citizens was made thoroughly secure. But, as has been said, the idea that these communities were "States" of the Union, notwithstanding their rebellion against the United States and their attempted secession from the Union, seemed to prohibit the following of this course, the only true and sound course. And so these unhappy communities were given over, as sham "States" of the Union, to the rule of the ignorant and vicious part of their population, to be sustained therein by the military power of the Nation, under the excuse that that part alone was loyal.

A period of darkness now settled down upon these unhappy communities blacker and more hopeless than the worst experiences of the war. The conduct of the men who now appeared upon the scene as the creators of the new South was so tyrannic, corrupt, mean and vulgar as to repel the historian from attempting any detailed account of their doings, and incline him to the vaguest outline. Moreover it is most difficult to fix upon reliable facts in this period of confusion and political night, illuminated only by the lurid gleams of passion and hatred. It is best for the North, best for the South, best for the whole country, and best for the world that this terrible mistake of the North and this terrible degradation of the South should be dealt with briefly and impersonally, and that lessons of warning should be drawn from these experiences, instead of multiplying criminations and recriminations in regard to them.