RECONSTRUCTION: THE SECOND PLAN
Congress addressed itself, in the first instance, to extending and
prolonging that provision for the freedmen which it had already made
through the Freedmen's Bureau. A bill was reported, having the weighty
sanction of Senator Trumbull and the judiciary committee, greatly
increasing the force of officials under the Bureau; putting it under the
military administration of the President and so with the direct support
of the army; and broadening its functions to include the building of
school-houses and asylums for the freedmen, and a wide jurisdiction over
all civil and criminal cases in which local laws made an unjust
discrimination between the races. The bill passed the Senate and House,
by the full party majority. It was sent to the President, February 10,
1866, and nine days later he returned it with a veto message, calmly and
ably argued. He objected to the bill as a war measure after peace had
been proclaimed. He took exception to the intrusion of military
authority upon the sphere of the civil courts, and to the extension of
Federal authority in behalf of black men beyond what had ever been
exercised in behalf of white men. The message was strong enough to win a
few of the orthodox Republicans, including ex-Governor Morgan of New
York, and the two-thirds vote necessary to carry the bill over the veto
could not be gained.
Up to this time there seems reason to believe that while the Republicans
in Congress were firm in claiming for that body a decisive voice in
reconstruction, yet a majority of them were more favorable to the policy
of President Johnson than to that of Sumner and Stevens. But now, upon
the necessity of safeguarding the freedmen by exceptional measures in a
wholly exceptional time, the preponderance of conviction turned against
him in Congress and in the country. His own acts quickly converted that
first opposition into hostility and alarm.
Until now President Johnson, whatever dissent he might provoke, had
appeared as a dignified statesman. But three days after his veto, on
February 22--Washington's birthday--a cheering crowd called the
President to the balcony of the White House. They heard a speech,--how
different from what Lincoln had spoken in the same place in the previous
April. Johnson was exhilarated by his success, forgetful that he still
faced a hostile majority in Congress, exasperated by opposition, and
roused by the shouts of the crowd,--and his native passion and
coarseness came out. Sumner had been severe in his language; he had
likened President Johnson to President Pierce in the Kansas days, and
hinted a family resemblance to Pharaoh of Egypt. Wendell Phillips was in
his native element of denunciation. Now the President declared to his
applauding hearers that he had against him men as much opposed to the
fundamental principles of the government, and he believed as much
laboring to pervert or destroy them, as had been the leaders of the
rebellion,--Davis, Toombs, and their associates. To the responsive
cheers, and the cry for names, he answered by naming Stevens, Sumner and
Phillips. He rehearsed his rise from tailor to President, and declared
that a ground swell, an earthquake of popular support, was coming to
him. His speech brought surprise and dismay to the country. It fanned
into hot flame the opposition between President and Congress. In vain
did John Sherman,--who had conferred with the President in the summer,
and thought highly of his patriotism--now hold out the olive branch in
the Senate. A keen observer at Washington, Samuel Bowles,--who had held
a friendly attitude toward both the President and the party
leaders,--now wrote, February 26, "Distrust, suspicion, the conceit of
power, the infirmities of temper on both sides, have brought affairs to
the very verge of disorder and ruin." He dissuaded from taking sides in
the quarrel; there was too much right and too much wrong on both sides.
He urged, March 3,--and no doubt he represented the best sentiment of
the country: "The great point is to secure protection and justice for
the freedmen.... For the present the Freedmen's Bureau, military
occupancy, and United States courts, must be our reliance.... We want
the President firm and resolute on this point, and we want to arouse the
better class of the Southern people to do their duty in the same
regard."
The weakness of the veto message on the Freedmen's Bureau bill had been
the absence of any solicitude for the welfare of the freedmen;
constitutional theory seemed to wholly supersede the practical necessity
of the case. Now Congress again approached the matter in the Civil
Rights bill, carefully formulated in the judiciary committee, thoroughly
debated and amended, and passed by both houses late in March. It
affirmed United States citizenship for all persons born in the country
and not subject to any foreign power; it declared for all citizens an
equal right to make and enforce contracts, sue, give evidence, hold and
sell property, etc.; full equality as to security of person and
property, as to pains and penalties,--in short, complete civil equality.
Original jurisdiction was given to United States courts, and to these
could be transferred any case involving these subjects begun in a State
court. The bill empowered the President to use the army for its
enforcement. All this was under authority of the Thirteenth Amendment.
This, too, the President vetoed, as unnecessary, as employing the
military arm too freely, as extending unwisely the power of the Federal
Government, and as especially unwise legislation while eleven States out
of thirty-six were unrepresented in Congress. But the President was now
going in the face not only of the congressional majority but of the
North at large, which was unmistakably opposed to leaving the freedmen
with no protection against their old masters. The veto was overridden,
and became a law April 9. The Freedmen's Bureau bill, somewhat amended,
was again passed, this time over a veto, and became a law July 16.
It was after the decisive victory over the President on the Civil Rights
bill that Congress took up the comprehensive measure which embodied its
own plan of reconstruction as a substitute for the President's. That
measure was the Fourteenth Amendment. It was drawn up by the
reconstruction committee, of which Senator Fessenden was chairman, and
probably his was the leading part in framing its provisions. The first
proposition was only to make the basis of congressional representation
dependent on the extension or denial of suffrage to the freedmen. This
was proposed January 22, 1866, and after some weeks' discussion passed
the House but failed in the Senate. It was replaced by a broader
measure, which was reported April 30, debated and amended for six weeks,
and finally in mid-June took the form in which it now stands in the
Constitution, and was approved by Congress. It then went before the
States for their action, with a tacit but strong implication that upon
its acceptance and adoption the lately seceded States would be fully
restored. It was in effect the plan of reconstruction first offered by
Congress, as a substitute for the President's.
The first article of the amendment declares that all persons born or
naturalized in the United States are citizens of the United States, and
of the State wherein they reside; and that all are entitled to the equal
protection of the laws. Another section guarantees the validity of the
public debt, and forbids payment of the Confederate debt or payment for
the emancipation of slaves. Both these articles appear at this distance
of time to be beyond question or criticism. Another article apportions
representation in Congress, as heretofore, according to population; but
further provides that any State which denies the suffrage to any part of
its adult male population, except for rebellion or other crime, shall
have its congressional representation reduced in the same proportion. It
will be remembered that under the old Constitution the basis of
representation was fixed by adding to the total of the free population a
number equal to three-fifths of the slaves. Now that the slaves had
become freedmen, the representation of the old slave States would to
that extent be increased. But it seemed neither just nor expedient to
permit such an increase of power, unless the class on whose enumeration
it was based were made _bona fide_ citizens, and sharers in this power.
If under this amendment the Southern States should choose to give the
vote to the freedmen, their total representation in Congress would be
raised from sixty-one to seventy. If they did not give it, their
representation would fall to forty-five. There was thus offered them a
strong inducement to establish impartial suffrage; while yet they were
at full liberty to withhold it at the price of some diminution of power
compared with communities adopting the broader principle. The
reconstruction committee had listened to prominent Southerners as to the
probable reception of this provision. Stephens thought his people would
consider it less than their due and would not ratify it. But Lee thought
that Virginia would accept it, and then decide the question of suffrage
according to her preponderating interest; that at present she would
prefer the smaller representation, but would hold herself ready to
extend the suffrage if at any time the freedmen should show a capacity
to vote properly and understandingly.
So far, the Fourteenth Amendment seems now to embody a sound
statesmanship. But the remaining article must be judged by itself. It
excludes from all State and national offices all those, who, having
taken an official oath to support the Constitution, have afterward taken
part in insurrection and rebellion. This was ingeniously framed with an
appearance of justice, as if debarring from office only those who to
rebellion had added perjury. But, as a matter of ethics, the breaking of
official oaths is an inevitable incident of every revolution; and just
as war is held to suspend in a measure the command "thou shalt not
kill," so revolution must be held to cancel the obligation of official
oaths. The opposite view would affix the full guilt of perjury to many
leaders in the American Revolution, perhaps to Washington himself. It
was not really as perjurers that the excluded class were debarred from
office, but as prominent leaders in the rebellion, so marked by having
previously held office. It shut out, and was so intended, a class not
only very large in numbers but including the best intelligence and
social leadership of the South. To exclude these men from all political
leadership in the new régime was in flat defiance of that statesmanship,
as wise as magnanimous, which Andrew and Beecher had voiced. As one New
England observer put the matter, it would help matters greatly if no man
favored a government for others that he would not like to live under
himself; now how would it work in Massachusetts to exclude from the
government the whole Republican party? Yet the Democrats in the State
have ten times the knowledge, character and ability, that are possessed
in the South by the elements free from stain of rebellion.
The disqualification, to be sure, was removable in each case by a
two-thirds vote of Congress. But it could not be foreseen how Congress
would be disposed; and in fact, the President's pardon, so freely given,
had been by Congress expressly deprived of any political value; being
held to exempt only from legal pains and penalties. The new exclusion,
if adopted, could hardly work other than disastrously. And, being
offered, as the entire amendment necessarily was, for acceptance or
rejection by all the States, this provision was as well suited to repel
the South as if it had been designed for that purpose. It offended that
loyalty to their tried leaders in stress and storm which is one of the
best traits in a people's character. Compare it with Beecher's saying of
a few months earlier, "I think it to be the great need of this nation to
save the self-respect of the South." The difference measures the degree
of the mistake under which the mass of the North were still laboring.
They looked upon the rebellion as a moral and personal crime. They had
no comprehension of the Southern standpoint; and, sure that their own
cause was just, they believed that their opponents were not only
mistaken but morally guilty. As it was hardly possible to suppose the
8,000,000 to have all gone wrong out of individual perversity, the
current view at the North was that Secession sprang from a conspiracy;
that its leaders had secretly plotted, like Aaron Burr, and thus misled
their followers. The impulse to inflict death or imprisonment or
confiscation on anybody was infrequent or short-lived; the desire for
such punishment lingered only in an irrational wish for vengeance on
Jefferson Davis. But, if the leading class in the society and public
life of the South were morally responsible for a great treason and
rebellion, it might seem not only just but wise to exclude them from the
new political order.
The critics of the reconstruction policy are often challenged by its
defenders with the question, "But what better course can you suggest,
even now?" And the immense difficulty of the problem, even as calmly
viewed to-day by the closet student, may well make us charitable toward
the men who, for the most part, did the best they knew under the
immediate besetment of measureless perplexities and contradictions. But
while we may approve of their work in the rest of the Fourteenth
Amendment, with equal emphasis we may say: The mistake was great, in the
amendment and later, of shutting out the very men who should have been
included. Better by far would it have been to take their counsel and
co-operation even beforehand in planning the work of reconstruction.
Even as to that crucial point, the legislation oppressive to the
freedmen, and the deeper difficulty underlying it, the ingrained
Southern attitude toward the negro as an inferior being,--even as to
this, something might have been accomplished had the Southern men, who
went to Washington in the vain hope of immediate admission to Congress,
been met by a President of Lincoln's or Andrew's calibre. Even as it
was, there were signs of promise in Georgia,--so says Rhodes in his
excellent _History of the United States_. The newly elected Governor,
Judge Jenkins, a man of "universally acknowledged probity and
uprightness of character" made in his inaugural address (December 14,
1865) a strong plea for the negroes who had so faithfully cared for the
lands and homes and families of the soldiers in the field: "As the
governing class individually and collectively we owe them unbounded
kindness and thorough protection.... Their rights of person and
property should be made perfectly secure." To like effect spoke
Alexander H. Stephens, revered by all Georgians, February 22, 1866;
recalling the fidelity of the slaves during the war and the debt of
gratitude it created; the obligation of honor to the poor, untutored,
uninformed; asking for the negroes ample and full protection, with
equality before the law as to all rights of person, liberty and
property. And such equality the Georgia Legislature speedily ordained.
Tennessee did the like. Rhodes expresses confidence that by gentle
pressure from the President and Congress, Virginia, North Carolina and
Alabama could have been persuaded to similar legislation within a twelve
month, and the other States would have followed.
The excluding article in the amendment was probably made as a concession
by the moderate Republicans to the radicals. It replaced an article
originally reported by the committee, excluding not only from office but
from the suffrage all who had taken part in the Rebellion, until July 4,
1870. The article as adopted was disliked by Sherman and Wilson, the
latter especially declaring his willingness to remove the
disqualifications as soon as possible after a settlement had been made.
In point of fact they were removed piecemeal by Congress almost as
freely as President Johnson had done the like, and were ended except for
a few hundred by a sweeping amnesty in 1872.
Grant said to A. H. Stephens in April, 1866, "The true policy should be
to make friends of enemies." If these men, with a few others of like
temper in North and South, could have settled the terms of the new
order, a different foundation might have been laid. But in default of
any such happy, unlikely conjuncture of the right men in the right
place, it is the deep and wide tides of public opinion that largely
shape events. The average Southern view of the negro, and the average
Northern view of the "rebel," were the Scylla and Charybdis between
which the ship of state steered its troubled voyage.
Returning now to the course of events,--Congress made it plain that the
acceptance of the Fourteenth Amendment would bring the restoration of
the South, not by a formal declaration, but by its action in promptly
admitting Tennessee when within a month it ratified the amendment. So
before the South and the country were now the two policies,--of Congress
and the President,--and the summer and autumn saw a general and eager
discussion. The South waited events, hoping for the President's success.
In the North there was at first a marked effort to rally conservative
men of both parties to his side. A great convention was held at
Philadelphia, promoted by the President, Seward, Weed and Henry J.
Raymond; with delegates from every State; the first day's procession led
by Massachusetts and South Carolina representatives arm-in-arm; Southern
governors and judges heartily assenting to the declaration that not only
is slavery dead, but nobody wants it revived; and with cordial
indorsement of the President's reconstruction policy.
There was a counter-convention at Pittsburg; there were "soldiers' and
sailors' conventions" on both sides. From the Cabinet three members,
Speed, Denison and Harlan, resigned because their convictions were with
Congress; but Stanton remained as Secretary of War, though he was now a
bitter opponent of the President,--a safeguard over the army, as the
radical leaders considered him, and by his attitude and natural temper a
constant exasperation to his nominal chief. A fierce and bloody riot in
New Orleans, of which the precise causes were obscure, but in which the
negroes were the sufferers, heightened the Northern anxiety as to the
general situation.
The popular tide evidently ran with Congress, yet Johnson had the
promise of very respectable support until he threw it away. His
extempore expressions suggested an overweening view of his own position.
To the committee reporting to him the Philadelphia convention, he said,
"We have seen hanging upon the verge of the government, as it were, a
body called, or which assumes to be, the Congress of the United
States--but in fact a Congress of only a part of the States." In
September he made a tour of the Northern States, taking in his train
Secretaries Seward and Welles, with Grant and Farragut;--"swinging round
the circle," he called his trip. He made addresses in the principal
cities, in which he denounced his opponents, sometimes with vulgar
abuse, bragged of his own rise from tailor to President, and bandied
words with the mob. He shamed many of the men of character--Beecher
among them--who had viewed him with favor. The tide turned
overwhelmingly against him. The November election returned a Congress
consisting in the House of 143 Republicans to 49 Democrats, with a
Senate of 42 Republicans to 11 Democrats.
It was like the hand of Nemesis that the South, led to crushing defeat
by its slave-holding aristocracy, should now have its interests
sacrificed through the characteristic faults of one of its poor
whites,--his virtues overborne by his narrow judgment, uncontrolled
temper and coarse speech.
Warned by the election, the South might well have accepted the
Fourteenth Amendment as the price of its restoration. But it failed to
read the handwriting on the wall. It could not yet brook acquiescence in
the exclusion of its old leaders, and the alternative of negro suffrage
or reduced power in Congress. The pride of race, the unquenched spirit
of the "lost cause," prompted it to stand out for better terms. During
the autumn and winter of 1866-7 the lately seceded States, except
Tennessee, rejected the amendment. So failed the first congressional
plan of reconstruction, as the President's earlier plan had failed. And
now there was small hesitation or delay in framing and enforcing the
final plan.