Civil War and Reconstruction in Alabama

by Walter L. Fleming

CHAPTER VIII

FIRST PROVISIONAL ADMINISTRATION

Sec. 1. Theories of Reconstruction

Owing to the important bearing upon the problem of Reconstruction of the disputes between the President and Congress in regard to the status of the seceded states, it will be of interest to examine the various plans and theories for restoring the Union. From the beginning of the war the question of the status of the seceded states was discussed both in Congress and out, and with the close of the war it became of the gravest importance. There was nothing in the Constitution to guide the President or Congress, though each sought to base a policy on that ancient instrument. Many questions confronted them. Were the states in the Union or out? If in the Union, what rights had they? If out of the Union, were they conquered territories subject to no law but the will of the United States government, or were they United States territory with rights under the Constitution? Must they be reconstructed or restored, and who was to begin the movement—the people of the states, Congress, or the President? Were the states in their corporate capacity, or the people as individuals, responsible for secession? What punishment was to be inflicted, and on whom or what must it fall—the people or the states? Who or what decides who are the political people of the state? Exactly what was a state? Was the Union the old Union of Washington, or a new one? Congress and the President could never agree in their answers to these questions.[847]

Conservative Theories

As to the status of the seceded states and the proper method of Reconstruction, all interested persons had theories, but the only one which was logical and consistent with regard to the “Constitution as it was” was the so-called Southern theory. This theory was that secession having failed, state sovereignty was at an end; the doctrine was worthless; secession was a nullity, and therefore the states were not out of the Union; the state was indestructible. The war was prosecuted against individuals and not against states, and the consequences must fall upon individuals; the states had all the rights they ever possessed, but, being out of their proper relation to the Union, its officers must take the oath of allegiance to the United States government, representatives must be sent to Congress, and the people must submit to the authority of the government. Then the Union would be restored as it was.[848] At the fall of the Confederacy the general belief was that restoration would proceed along these lines. Many of the higher officials of the United States army were of the same opinion, and on this theory the celebrated Johnston-Sherman convention was drawn up by General Sherman, which promised amnesty to the people and recognition of the state governments as soon as the officials should have taken the oath of allegiance.[849] Likewise, in the Southwest, General Dick Taylor, with the approval of General Canby, advised the governors of the states in his department to take steps toward restoring their states to their former relations to the Union. General Thomas, and perhaps General Grant, had likewise advised the people of north Alabama, and the subordinate Federal commanders in the Southwest favored such reconstruction and were inclined to help along the movement. But orders from Washington put an end to any such course by directing the arrest of all state officials who endeavored to act. Among those who had taken steps to restore the former relations with the Union were the governors of Alabama, Mississippi, and Florida.[850]

The Presidential and Democratic theories, like the Southern theory, were based on the doctrine of the indestructibility of the state. In the beginning the Democratic theory would have recognized the state governments of the seceded states and thus practically coincided with the later Southern theory. The Presidential theory, as formulated later, would not have recognized the state governments, and to this view the Democrats came after the war. The Union was indestructible and was composed of indestructible states. To assert that the states as states were not in the Union was to admit the success of secession and the dissolution of the Union. But the people as insurgents were incapable of political recognition by the United States government. So the state after the war was in a condition of suspended animation: the so-called state governments were not governments in a constitutional sense; the President could have the citizens tried for treason and punished, or he could pardon them and thus restore to them all their former rights, which, of course, included the right to reëstablish their governments and to resume their former relations with the Union. Congress had no power to interfere or to disfranchise any man, nor to regulate the suffrage in any way. Its only part in Reconstruction was to admit to Congress the representatives of the states as soon as constitutional government was restored by the people with the assistance of the President.[851]

The earliest legislative declaration touching this subject was in the Crittenden Resolutions passed by the House of Representatives on July 22, 1861.[852] Two days later practically the same resolutions were introduced in the Senate by Andrew Johnson of Tennessee and passed with only five dissenting voices.[853] They declared that “war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor for the purpose of overthrowing or interfering with the rights or established institutions of these states, but to defend and maintain the supremacy of the Constitution with all the dignity, equality, and rights of the several states unimpaired; and that as soon as these objects are accomplished the war ought to cease.”[854] To this declaration of principles the Democratic party adhered throughout the war and after. The Union as it was must be restored and maintained, one and indivisible.[855]

President Lincoln had no such regard for the “sacred rights of a state” as had the Democrats and his successor, Andrew Johnson. In his inaugural address he asserted that the Union existed before the states and was perpetual; that no state could withdraw from the Union; that secession was null and void; and that the Union was unbroken.[856] In the formation of the provisional governments by the aid of the military authorities in Tennessee, Arkansas, and Louisiana, Lincoln showed that he expected the political institutions of 1861 to be restored. In December, 1863, he brought forth this plan for restoration: When one-tenth of the voting population of a state in 1861 should take an oath to support the Constitution and should establish a government on the basis of the state constitution and laws in 1861, such a government would be recognized as the government of the state.[857] In July, 1864, he announced by proclamation that he was unwilling to commit himself formally to any fixed plan of restoration. This was in answer to the Wade-Davis bill passed by Congress, which, if approved, would set aside the governments he had erected in Louisiana, Tennessee, and Arkansas, and it showed that he considered it the prerogative of the executive to bring about and recognize the restored government.[858] These restored states he expected to take their places in the Union on the old terms,[859] for as soon as the people submitted and civil governments were established, constitutional relations would be resumed, and Congress would be obliged to admit their representatives.[860] Early in the war, he said nothing about abolition, but rather to the contrary. Later he advocated gradual and compensated emancipation by state action. At the close of the war, after the practical, if not the theoretical, abolition of slavery, he suggested that the newly established governments might, as a measure of expediency, confer the privilege of voting upon the best negroes.[861] He considered the matter of the suffrage beyond the control of the central government. The enfranchisement of the negro as a measure of revenge, and as a means of keeping the southern whites down and the Republican party in power, never entered his thoughts.