Lincoln’s Plan of Reconstruction
_By_
CHARLES H. McCARTHY
=Ph.D.= (_Pa._)
[Illustration]
New York
McCLURE, PHILLIPS & CO.
MCMI
_Copyright_, 1901 _by_
McCLURE, PHILLIPS & CO.
PUBLISHED NOVEMBER, 1901
------------------------------------------------------------------------
CONTENTS
Page
=Introduction= xv
I
TENNESSEE
Election and Policy of Lincoln 1
East Tennessee 3
Secession 8
Federal Victories 10
A Military Governor 11
Origin of Military Governors in the United States 12
Measures of Governor Johnson 17
Negro Troops 20
Nashville Convention of 1863 21
Proclamation of Amnesty and Reconstruction 23
Steps to Restoration 27
Nashville Convention of 1865 30
Election of William G. Brownlow 32
Nomination of Lincoln and Johnson 32
Presidential Election in Tennessee 34
II
LOUISIANA
Popularity of Secession 36
Financial Embarrassment 37
Capture of New Orleans 38
Lincoln’s Advice 38
General Shepley appointed Military Governor 39
Election of Representatives to Congress 45
Division among Unionists 47
Military Operations 49
Lincoln Urges Reconstruction 51
Political Activity among Loyalists 53
Title of Louisiana Claimants 58
Opposition to General Banks 61
Plan of Reconstruction proposed 66
Election of 1864 70
Inauguration of Civil Government 72
Lincoln’s Letter on Negro Suffrage 73
Constitutional Convention 75
Congressional Election 76
III
ARKANSAS
Indifference to Secession 77
The Fall of Sumter 78
Seizure of Little Rock 79
Military Matters 79
Threat of Seceding from Secession 82
General Phelps appointed Military Governor 82
Enthusiasm of Unionists 83
Lincoln’s Interest in Arkansas 83
Inaugurating a Loyal Government 84
The Election of 1864 90
IV
VIRGINIA
Secession 93
Physical Features and Early Settlements 94
Society and Its Basis 95
The Counter-Revolution 97
Convention at Wheeling 99
Organizing a Union Government 100
Legislature of Restored Virginia 103
The State of Kanawha 105
Attorney-General Bates on Dismemberment 105
Making a New State 107
Compensated Emancipation 108
Formation of New State discussed in Congress 110
Cabinet on Dismemberment 120
Lincoln on Dismemberment 124
Webster’s Prediction 126
Inauguration of New State 128
Reorganizing the Restored State 129
Right of Commonwealth to Representation in Congress 131
Rupture between Civil and Military Authorities 133
The President Interposes 135
Congress Refuses to Admit a Senator-Elect 138
V
ANTI-SLAVERY LEGISLATION
Compensated Emancipation in Congress 142
Contrabands 143
The Military Power and Fugitive Slaves 144
Lincoln on Military Emancipation 148
Andrew Jackson and Nullification 151
Lincoln on Compensated Emancipation 152
Compensated Emancipation in Delaware 155
Abandoned Slaves 160
Border Policy Propounded 163
General Hunter and Military Emancipation 168
Slavery Prohibited in the Territories 170
Attitude of Border States on Slavery 172
Lincoln Resolves to Emancipate Slaves by Proclamation 177
VI
THEORIES AND PLANS OF RECONSTRUCTION
The Presidential Plan 190
Sumner’s Theory of State Suicide 196
“Conquered Province” Theory of Stevens 211
Theory of Northern Democrats 217
Crittenden Resolution 220
VII
RISE OF THE CONGRESSIONAL PLAN
Bill to Guarantee a Republican Form of Government 224
Henry Winter Davis on Reconstruction 226
House Debates on Bill of Wade and Davis 236
Pendleton’s Speech on Reconstruction 257
Provisions of Wade-Davis Bill 262
Senate Debate on Bill of Wade and Davis 264
President’s Pocket Veto 273
Proclamation concerning Reconstruction 278
Manifesto of Wade and Davis 279
VIII
AN ATTEMPT TO COMPROMISE
President ignores Controversy with Congress 286
Summary of Military and Naval Situation 288
Attempt to Revive the Pocketed Bill 289
House Debates on Ashley’s Reconstruction Bill 291
Defeat of Ashley’s Bill 311
IX
THE ELECTORAL VOTE OF LOUISIANA
Resolution excluding Electoral Votes of Rebellious States 314
Amendment of Senator Ten Eyck 315
Senate Debate on Ten Eyck’s Amendment 316
Defeat of the Amendment in favor of Louisiana 334
Senate Passes Joint Resolution 338
Counting the Electoral Vote 339
The President’s Message 339
X
SENATE DEBATE ON LOUISIANA
Congressmen from Louisiana at the National Capital 341
Proposal to Recognize Louisiana 343
Powell’s Speech opposing Recognition 344
Henderson’s Argument for Recognition 348
Howard’s Argument in Opposition 358
Reverdy Johnson’s Speech for Recognition 370
General Discussion on Louisiana 374
XI
INCIDENTS OF RECONSTRUCTION
The Thirteenth Amendment 384
The Freedmen’s Bureau 385
Volunteer Diplomats 389
The Hampton Roads Conference 395
Lincoln’s Letter to General Hurlbut 401
Lincoln’s Letter to General Canby 402
Lincoln’s Last Words on Reconstruction 403
XII
CULMINATION OF THE PRESIDENTIAL PLAN
Lincoln and the South 407
Inauguration of Andrew Johnson 408
Arkansas after the War 409
Condition of Tennessee 412
Louisiana 417
Reorganization of Virginia 425
The Wreck of the Confederacy 431
Andrew Johnson on Reconstruction in 1864 438
Johnson’s Speeches after Accession to the Presidency 440
Raising the Blockade 444
The Executive Department Recognizes Virginia 445
Restoration of North Carolina 448
The President Hesitates 458
Executive Policy in Mississippi 460
Restoration of Georgia 465
Texas 466
The Reconstruction Conventions 468
Temper of the South 472
Mississippi Legislation relative to Freedmen 475
Southern Reaction 482
The President’s Change of Opinion 487
Examination of Lincoln’s Plan 491
APPENDIX A
=Thirty-Seventh Congress= 499
APPENDIX B
=Thirty-Eighth Congress= 502
Preface
_Much of the material included in this volume was collected several
years ago while the author was a graduate student at the University of
Pennsylvania. The researches then commenced probably first suggested to
him the lack in our political literature of an ample and interesting
account of the return of the States. Students, librarians, and even
professors of history knew no adequate treatise on the era of
reconstruction, and their testimony was confirmed by the authority of
Mr. Bryce, who happily describes the succession of events in those
crowded times as forming one of the most intricate chapters of American
history. No apology is offered, therefore, for considering in this essay
so important and so long-neglected a theme as the rise of the political
revolution that occurred before reunion was finally accomplished._
_On the general subject several excellent monographs have recently
appeared; these, however, are nearly all employed in discussing the
second stage in the process of restoration, and, except incidentally,
anticipate scarcely anything of value in the present work, which, so far
at least as concerns any logical exposition, conducts the reader over
untraveled ground. As the introduction indicates with sufficient
accuracy both the scope and method of this study, nothing is required
here beyond a concise statement of the author’s obligations._
_Like many other students of American institutions, the writer
cheerfully acknowledges his indebtedness to the works of Brownson, Hurd
and Jameson, and, by transferring some of their opinions to his book,
has shown a practical appreciation of their researches. In addition to
these obligations, in which the author is not singular, he profited for
four years by the lectures of Dr. Francis N. Thorpe, his professor in
constitutional history. Except in a very few instances, where the name
of an author was forgotten, credit for both suggestions and material is
uniformly given in the references and footnotes._
_For the selection, arrangement, and treatment of topics the author
alone is responsible; he desires, however, to take this opportunity of
acknowledging generous assistance received from three intimate friends:
his colleague, Dr. Charles P. Henry, found time in the midst of arduous
literary engagements to read the whole of the manuscript and to make
many valuable suggestions, especially in matters of style and diction;
the book is not less fortunate in having been critically read by Thomas
J. Meagher, Esq., whose extensive and accurate knowledge of public as
well as private law contributed to a more clear and scientific statement
of many of the constitutional questions discussed; the technical skill
and the superior intelligence of Mr. George M. Schell were of
considerable assistance to the author in correcting the proofs of the
entire book. Nor must he omit to record his appreciation of the courtesy
of Mr. L. E. Hewitt, the efficient librarian of the Philadelphia Law
Association. Finally the writer gratefully acknowledges his chief
obligation to the scholarship of his former teacher, Dr. John Bach
McMaster, who kindly interrupted the progress of his great historical
work long enough to read a considerable portion of this essay. Indeed,
it was the encouragement of that eminent author which first suggested
the publication of these pages._
_Before concluding his remarks the writer wishes to disclaim any
sympathy with the progressive school of historical criticism, which
derides the Constitution as a thing of the past and learnedly
characterizes all veneration for its authority as the worship of a
fetich. This book will have attained one of its principal purposes if,
in the language of a distinguished surviving statesman of the war
period, it will teach “the constant and ever-important lesson that the
Constitution is always a more reliable guide for the legislator than
those fierce passions which war never fails to excite.”_
=Philadelphia=, September 14, 1901.
INTRODUCTION
So closely blended with the essential principles of our federal system
of government were the causes of the Civil War that a clear
understanding of its results appears to require some account of the
origin, the independence and the permanent union of these States. Upon
the eventful years between the Treaty of Paris and the Declaration of
Independence, crowded as they are with work of note, one could linger
with pleasure; this epoch, however, has already engaged the pens of so
many writers, eminent as well as obscure, that a re-study of the
blunders of England’s ministers and the revolt of her distant colonies
might justly be regarded as a piece of presumption.
Nor does it seem necessary to recite the familiar achievements of the
succeeding period; for, perhaps, the portion of American history most
attractive to the general reader is included between the 4th of July,
1776, and the 4th of March, 1789. To these years belong the most
conspicuous services of that giant race of leaders whose swords relieved
a gallant people from oppression and whose wisdom established a form of
government not, indeed, in universal harmony with popular prejudice, but
admirably designed for the popular welfare.
It was at the outset of what may properly be styled the national era
that there appeared the remarkable group of statesmen who guided the
infant Republic on its dim and perilous way. On their broad experience
gleamed a vision of the future touching all their work with elements of
immortality. By them was skillfully established a system of revenue and
of finance adequate to all the exigencies of the time, and a foreign
policy inaugurated which for generations together preserved unbroken
harmony with the world outside. They doubled by wise and peaceful
acquisition the area of that Union whose independence had been wrested
from George the Third, and with no less wisdom prescribed the procedure
and defined the jurisdiction of Federal courts.
The forty years following March 4, 1789, form an epoch with
characteristics of its own. This was the period of Virginian ascendency,
the Adamses alone breaking the line of illustrious Presidents furnished
by the Old Dominion. Introduced by an experiment in government which
aroused the slumbering energies of the nation, its conclusion was marked
by the disappearance from political life of the splendid ideals and rich
traditions of the Fathers.
The election of General Jackson coincides with the beginning of a new
phase in American political and industrial development. It was not that
the fame of a splendid military record had raised its possessor to an
office for which long experience in governmental affairs had hitherto
been thought indispensable, or that the selection of Presidents had
passed from an intellectual few to the control of a much more numerous
class who were willing to bestow on politics the attention and energy
requisite for success in trade; but it was about this time that the
imperious power of slavery entered upon its career of aggression.
Philosophic statesmen of a previous epoch had ardently hoped that the
institution would be permitted quietly to disappear; indeed, the
greatest among them, though divided upon a multitude of political and
economic questions, agreed in encouraging every movement designed for
its extinction. These humane efforts, however, were not destined to win
immediate success, and even with the coöperation of the General
Government served only to demonstrate the difficulty of such an
undertaking.
After 1820 all the dangers which menaced the integrity of the Union
were, with one notable exception, traceable to this cause. When Mr.
Lincoln in his discussions with Senator Douglas declared that it was the
sole cause of all the troubles which had disturbed the nation, he meant,
probably, to assert no more than that in his own time it had been the
most conspicuous one.
Long before slavery became a subject of embittered controversy the
doctrine of State Rights had agitated the country. As early as the
summer of 1793 it had found in Justice Iredell an able advocate on the
bench of the United States Supreme Court. For party purposes it was
adopted five years later by Madison and Jefferson in the celebrated
Virginia and Kentucky Resolutions, and during the second war with Great
Britain these statesmen were startled to find New England Federalism
vindicating its unpatriotic, if not treacherous, conduct in the exact
language which they had invented to embarrass a former administration.
With this instrument, too, Calhoun in 1832 shook the foundations of the
Union. Both Northern and Southern statesmen of that generation, however,
pushed the principle of State sovereignty as far only as their immediate
object seemed to require.
It is a popular mistake to suppose that beyond the limits of the South
this erroneous doctrine found little favor in the minds of men; for on
the eve of the War of 1812 a Governor of conservative Pennsylvania had
armed her citizen-soldiers against Federal power.
The illustrious Marshall could relate how, before the highest tribunal
in the land, its champions with unwearied zeal renewed the battle for a
hopeless cause. The eloquent voice of Webster hushed for a time the
fretful agitation of South Carolina statesmen, and his genius fixed in
imperishable literary form that interpretation of the Constitution which
called forth the abundant resources of both the Nation and the States.
In his conquering words lived those elevated thoughts that in future
years sustained the defenders of the Republic.
President Jackson, for the energy and promptness by which he defeated
the projects of the Nullifiers, has been justly eulogized; but, when the
excitement of the hour had passed away, the calmer judgment of even his
admirers perceived that victory inclined rather to the side of Calhoun.
Discussion of the abstract question of State sovereignty might,
probably, have long continued without endangering the Union had the
principle not been invoked to defend the institution of human servitude;
yoked to that powerful interest it was inevitable that both should go
down together in undistinguishable ruin.
From the Protean fount of slavery flowed an hundred various streams
coloring almost every important question in the tide of events. In the
generation between the election of General Jackson and the inauguration
of Mr. Lincoln its defeats were few, its triumphs numerous and
important. Prosperity revealed its weaknesses and encouraged its
experiments. The fruits of its greatest victory, the dismemberment of
Mexico, revived those stormy scenes which thirty years before had for
the first time been witnessed in an American legislative hall.
Dissolution of the Union was once more threatened, and again averted by
the genius and patriotism of the venerable triumvirate, who scarce
outlived their noble work; but the compromise from which Clay, Calhoun
and Webster expected a restoration of former tranquillity contained
within itself the very seed-plot of even graver troubles.
After 1850 the attachment of Southern men to their industrial system was
played upon by ambitious politicians more and more, until the final
overthrow of themselves and the government which they sought to
establish for its preservation. It could be shown how before that time
one war was prolonged for the protection, and another undertaken chiefly
for the extension, of that aggressive institution; how its existence was
supposed to require Federal interference with the mails and an
abridgment of even the ancient right of petition. Every power of the
national Government and all the resources of the cotton States had been
employed for its advantage.
The United States Supreme Court was the last agent within the Union by
which its advocates sought to dignify and perpetuate human servitude,
and so successful were their efforts that an enlightened and humane
Chief Justice was but little misrepresented in language or in sentiment
when political opponents ascribed to him the doctrine that “the negro
has no rights which the white man is bound to respect.”
The moral progress of the United States during the last forty years
finds, probably, in no single event a better illustration than the
change in public opinion upon the interesting question of human rights.
When the majority opinion was delivered in the Dred Scott case it
excited among members of the dominant political party but little
surprise. The shock which a judicial utterance of such sentiments would
give in our time to the ethical notions of the American people affords
at once both a measure of the advance that has been made in the interval
and an undoubted proof that progress has not been, as is commonly
supposed, exclusively or even mainly along material lines. It is
singular, too, that the first serious attempt of the Federal Supreme
Court to set at rest a dangerous political question should have been
followed by effects of so alarming a tendency.
It is not intended to relate in these pages the origin or the fate of
those compromises designed to avoid the inevitable conflict already in
the closing months of President Buchanan’s administration casting
ominous shadows in the pathway of the nation, nor to describe the
uncertain policy of the General Government or attempt to determine the
measure of its responsibility for the fearful rebellion which that
hesitation encouraged.
The skill and industry of a multitude of laborers have gathered from the
field of conflict a harvest as bountiful as the result was satisfactory.
We have general histories and bird’s-eye views, military accounts and
naval accounts of the Civil War; memoirs and diaries, by actors more or
less prominent in the events which they describe, and narratives of
battles and of sieges. In this varied and ample field even a belated
worker might hope to glean something of value; but this study, whatever
it may discuss incidentally, will be chiefly concerned with the subject
of Reconstruction, a phase of our political and constitutional
development which, though beginning during the progress, lies mainly
beyond the close of the Rebellion.
The organization into a separate government of the late Confederate
States, with their resolute struggle for independence, is the chief
event in the extraordinary career of this favored nation. The story of
their submission to Federal power and the return to their former places
in the Union is not inferior either in interest or instruction to any
political event recorded in history. This return is what is commonly
known as Reconstruction. Though the term on its introduction into
political discussion was frequently objected to as inaccurate, it has
been generally adopted in the writings of publicists as well as in
popular speech. The word “restoration,” which was at first preferred,
was soon found to be inexact; for while former relations were resumed by
the erring States, they came back, one with diminished territorial
extent and all with domestic rights greatly abridged. They had, in fact,
been _reconstructed_. It is true that even the loyal States did not
emerge unscathed from this political revolution. In the South, however,
the established industrial system had been swept completely away.
The theme falls naturally under two heads, Presidential Reconstruction
and Congressional Reconstruction. An account of the former, which
extended from the summer of 1861 to the autumn of 1865, occupies the
whole of this volume. Any adequate treatment of the latter, including as
it does the eventful period from the meeting of Congress in December,
1865, to the withdrawal of Federal forces from the South in 1877, will
require a narrative somewhat more ample.
The conspicuous landmarks of Reconstruction require no extraordinary
talent to recognize and locate. It is the unfamiliar region between that
is difficult accurately to map out. The failure hitherto to present in a
single view the striking features of these neglected parts is chiefly
responsible for the fact that Reconstruction remains one of the most
obscure parts of our history. A candid and comprehensive account of the
political events of the time appears to divest the subject of much of
the difficulty commonly supposed to attend its investigation. From a
sufficient body of essential facts the step to an understanding and
exposition of every principle of moment is comparatively easy.
Though the general design of this volume will be suggested to the
student of American history by an inspection of its principal
subdivisions, it may not be unnecessary for the benefit of the general
reader to add a brief outline of the plan that has been adopted.
Chapter I. relates the most important political events in the history of
Tennessee from its attempted secession to the restoration, in March,
1865, of a civil government loyal to the United States. Military
movements in that Commonwealth have been noticed only so far as to
render intelligible the successive steps by which that reorganization
was accomplished.
Chapters II. and III. bring the affairs of Louisiana and Arkansas,
respectively, down to about the same time. Events in those States have
been treated, so far as conditions permitted, in the same manner as in
the case of Tennessee.
Chapter IV. is concerned with the secession, restoration and
dismemberment of Virginia. The formation out of a portion of that
Commonwealth of the new State of West Virginia, both because of the
grave constitutional question which arose on a division of the parent
State and the intrinsic interest of the subject, has been considered
with some degree of minuteness.
In Chapter V., which discusses anti-slavery legislation, it will appear
how Mr. Lincoln, though never an Abolitionist or even a radical
Republican, became by pressure of military necessity an instrument in
the hands of God to destroy an institution opposed by a long line of
American statesmen and condemned by the light of the nineteenth century.
The succeeding chapter considers the various theories and plans of
restoration presented during the progress of the war. The rise of the
Congressional plan, which ultimately prevailed, is treated separately in
Chapter VII. Only the first stage of its development, however, falls
within the limits of this inquiry, which ends with the meeting of the
Thirty-ninth Congress in December, 1865.
Chapters VIII., IX. and X. trace the progress of the controversy between
the Legislative and the Executive branches of Government. The
culmination of this difference, however, in the impeachment and trial of
President Johnson is a phase of Congressional Reconstruction.
The topics treated in the eleventh chapter, having frequently employed
the pens of able and popular writers on the Rebellion, are considered in
this study merely for the purpose of making it complete in itself; hence
that section is little more than an epitome of what has already been
said on those subjects.
The twelfth and last chapter brings every part of the narrative up to
December 4, 1865. To clearly comprehend the arduous task that confronted
President Johnson this section includes a rapid survey of the wreck of
the Confederate States. The principal part, however, is reserved for an
account of the conventions assembled under his authority, the method of
instituting loyal governments and the spirit and tendency of Southern
legislation relative to freedmen. An examination of the Presidential
plan of Reconstruction completes the volume.
Lincoln’s Plan of Reconstruction
I
TENNESSEE
While the celebrated joint debates with Senator Douglas in 1858, the
Cooper Union and other addresses, marked Mr. Lincoln, in the new
political party just rising to power, as the intellectual peer of able
and trusted leaders like Sumner, Chase and Seward, his conservative
opinions on the subject of slavery made his nomination by the Chicago
Convention more acceptable to delegates from the border States. Though
his competitors received, in the memorable contest which followed,
almost a million votes in excess of the number cast for Mr. Lincoln and
his associate, the fierce conflict among fragments of the Democratic
party resulted, as is well known, in the choice of a decided majority of
Republican electors.[1] This rather unexpected defeat of a political
organization that had lost but two Presidential contests since its first
success under Jefferson afforded Southern leaders a pretext for urging a
dismemberment of the Union. Indeed, there is evidence that the more
impetuous among them had, four years earlier, seriously determined, in
case of Fremont’s election, upon a similar course.[2] Thus the present
event, so far from being an universal disappointment to members of the
defeated party, had been ardently hoped for by many.
The choice of a minority party, and not at first possessing the entire
confidence of even that minority, Mr. Lincoln, unable to divine the
future, was compelled in dealing with the insurrection to proceed with
the utmost caution. Washington himself, in organizing the Federal
Government, had a task of less magnitude, and the renown of his military
achievements silenced for a time even the boldest in opposition.
President Lincoln’s victories, gained on a different field, gave no such
unquestioned authority to his name. This peculiar situation forced him
to adopt for the guidance of his administration a policy not altogether
free from embarrassment to both himself and his successor. His purpose
at that time appears to have been to meet the demands of the moment by
the contrivances of the moment. Whether a different course would have
been rewarded by earlier or by more complete success is a hazardous
subject for speculation. If his theory of our national existence be
liable to the multitude of objections which have grown up in these
fruitful times of peace, no other has been suggested that is free from
criticism. His political doctrine, too, had the advantage of always
recommending measures scarcely less distinguished for enlarged views
than those enlightened convictions which characterize his first
inaugural address. Whatever may be concluded of its merits, the theory
embraced at the outset exerted on many administrative acts of President
Lincoln an influence that continued to be felt during his entire
executive career; and without remembering this fact we shall not easily
comprehend either the extent of his “Border Policy,” as the plan of
compensated emancipation is often called, or his undoubted concern for
persecuted Union men in the seceded States.
The sufferings of loyal citizens in East Tennessee had early enlisted
the President’s sympathies, and almost from the commencement of
hostilities measures for their relief formed in his mind part of the
plan of operations by the army under General Buell. Writing, January 6,
1862, to that commander he gives reasons for suggesting the occupation
of some point there rather than Nashville, and adds: “But my distress is
that our friends in East Tennessee are being hanged and driven to
despair, and even now, I fear, are thinking of taking rebel arms for the
sake of personal protection. In this we lose the most valuable stake we
have in the South.”[3] The cause of these outrages may be briefly
explained in a digression.
In no part of the late Confederate States was the slave interest more
feeble than in the thirty counties comprising East Tennessee.[4] That
portion of the State contained in 1860 slightly over 300,000
inhabitants,[5] of whom only about one tenth were slaves, while in many
counties they formed no more than one in seventeen of the population.
Here and there, indeed, were persons of wealth some of whom owned a few
negroes. But though a majority of the people looked upon domestic
slavery as something foreign to their social life, they had no strong
philanthropic impulse to oppose it. While quite willing to allow their
countrymen elsewhere to keep bondmen at pleasure, they did not regard it
any concern of theirs to assist either in extending or perpetuating
human servitude. If the existence of the Union or of slavery was the
issue, they would have hesitated little in deciding which should perish.
Though, as we shall presently see, they were as intolerant of the
Republican party as any community in the South, they were devotedly
attached to the Union. The fact is partly explained by the industrial
basis of society in this favored region.
Cut off from Middle Tennessee by lofty ranges of the Cumberland, and
from North Carolina by the Great Smoky, the Black and the Stone
mountains, this extensive district is traversed in its entire length by
the Tennessee and its chief tributaries, the Clinch and the Holston; as
the great river flows down to Alabama it receives, before turning west
and north to join the Ohio, the waters of many important and beautiful
streams, some of which, as the French Broad and Nolachucky, are
associated with deeds of note in the War for Independence; indeed, one
of its crowning victories was chiefly won by settlers from the banks of
the Watauga. Other names, like Hiwassee, are familiar to readers of
later events in Tennessee history, and Chickamauga Creek was destined
shortly to become more famous than any.
Knoxville, in early times a capital of the State, was, in 1860, the
metropolis of East Tennessee; Chattanooga, at the southern extremity of
the valley, is separated from Bristol, on the Virginia line, by a
distance of more than two hundred and forty miles; Cleveland and
Greenville were towns of less importance. The absence of large cities
makes it evident that manufacturing had not yet begun to attract serious
attention. Like early settlers everywhere in America, the pioneers of
Tennessee sought the most immediate returns from the products of the
forests and fields around them. The rich mineral deposits, then either
unknown or almost untouched, had not given rise to those great
extractive operations which in our time have so stimulated the
commercial life of East Tennessee. Vast cotton plantations, worked by
multitudes of slaves, like those in the western portion of the State,
had no existence in these mountain valleys, though occasionally small
“patches” were cultivated for domestic use.
Citizens of West Tennessee would naturally place upon the Federal
Constitution an interested construction; their industries, they
believed, required such an interpretation of that instrument as would
place the institution of slavery beyond the reach of Congressional
interference. While the people of East Tennessee, too, believed in the
several sovereignty of the States, the question of slavery did not touch
them so nearly. Indifferent to the subject themselves, they had little
sympathy with those who had determined to break up the Union from a mere
suspicion that their interests were menaced by the success of a new
political party. But to ascribe to the want of interested motives their
indifference to the great disturbing question of the time would be to
assign but one and that, perhaps, not the chief cause.
Except on its northern and southern boundaries this delightful region is
practically isolated from several adjacent States as well as from the
remainder of Tennessee. It was in this by-place of nature and amidst
such a population that _The Manumission Intelligencer_, a weekly
newspaper, made its appearance in 1819.[6] It was followed the next year
by _The Emancipator_ of Elijah Embree, a Pennsylvania Quaker; this in
turn was soon succeeded by a more celebrated publication, _The Genius of
Universal Emancipation_, conducted by Benjamin Lundy. While these
publications served to perpetuate and to extend, they did not create the
sentiment of which they became exponents, for, several years before
their appearance, an anti-slavery society flourished in Jefferson
County. Its existence is noticed as early as 1814.[7] This anti-slavery
feeling was part of the philosophic movement encouraged by nearly all
Southern as well as Northern statesmen before the inauguration of
General Jackson. A new industrial era, beginning about that time, put an
end to the abolition societies in the South; and though Lundy’s paper
was discontinued in Tennessee after 1824, events of frequent occurrence
sustained the anti-slavery sentiments of the people.
The Tennessee valley was a natural thoroughfare from Virginia to the
south-west, and when slaves were purchased on the Potomac they were
chained together, to prevent escape, and in that condition driven to the
homes of their new masters.[8] The plaintive songs of captives as they
were marched in lines along the valley highways often caused the free
mountaineer to pause in his labors and reflect on what was passing
before his eyes. He “saw slavery in its bitterness and without
disguise.” The remembrance of such spectacles was apt to strengthen in
him anti-slavery feelings that had come down from Revolutionary times.
But whether Southern leaders ascribed the sentiment to an inherited
tendency or regarded it as a consequence of this odious phase of the
domestic slave-trade, they did not think it beneath the dignity of
attention; for it was, doubtless, to create a sympathy for their
institution that a “Southern Commercial Convention” was held at
Knoxville in 1857. It was too late, however, to root out the convictions
of two generations; the counsels of the wise were soon to be confounded
and the fretful agitation of leaders soon to be hushed in the tempest of
war.
No Republican electoral ticket was presented in the great political
battle of 1860 for the suffrage of Tennessee voters, and had any citizen
openly advocated the election of Mr. Lincoln he would have had to endure
insult or injury, or to abandon his home. This explains why the
successful candidates received no vote in all the State. As “Parson”
Brownlow, selecting extreme abolition and secession types,
characteristically expressed it, his people were equally opposed to the
William L. Garrisons and the William L. Yanceys of politics.[9] In this
situation the supporters of Bell, Breckenridge and Douglas were left to
contend for victory among themselves. Addresses of the time reveal not
only the emotions of individual speakers, but the excited state of
public opinion. The attitude of Constitutional Union men was vigorously
stated in a debate at Knoxville by Nathaniel G. Taylor, an elector on
the Bell and Everett ticket. “The people of East Tennessee,” said the
orator, “are determined to maintain the Union by force of arms against
any movement from the South throughout their region of country to assail
the government at Washington with violence, and that the secessionists
of the cotton States in attempting to carry out their nefarious design
to destroy the Republic would have to march over his dead body and the
dead bodies of thousands of East Tennessee mountaineers slain in
battle.”[10]
When Yancey came up from Alabama to “precipitate” this section into
rebellion the intrepid Brownlow made a similar reply.[11] The energy or
the elegance of such utterances may be questioned, but the deeds of
loyal Tennesseeans during eventful years to follow are evidence alike of
the sincerity of the speakers and their insight into the temper of the
times.
Except Tennessee, all the States that attempted secession did so by
means of revolutionary bodies styled conventions; this description of
them is justified both by the general powers of administration and
government which they assumed and by the fact that the legislatures in
convoking them transcended their authority, the members of every State
legislature being “bound by oath or affirmation to support” the Federal
Constitution, which forms a part of the fundamental law of each
commonwealth. Though the Legislature of Tennessee, following the example
of law-making bodies in other disloyal States, passed a “Convention
Bill,” it was promptly defeated by a majority of 13,204 in a total vote
of more than 120,000. Notwithstanding the constitutional prohibition
that “no State shall enter into any treaty, alliance, or
confederation,”[12] the Legislature on May 1 authorized Governor Harris
to appoint commissioners to form a military league with the Confederate
States. Six days later the relations entered into by these agents were
ratified in a secret session, the State government thereby turning over
temporarily to the President of the Confederacy its entire military
force. These matters disposed of, the plans of disunionists were
completed by the passage on the same day of a declaration of
independence and an ordinance dissolving all Federal relations between
Tennessee and the United States. Though this measure was to be voted
upon a month later, the Legislature, as if anticipating the result,
adopted and ratified the Confederate constitution. What was so ardently
desired by secessionists was finally accomplished, and on June 24 the
Governor declared his State out of the Union, the vote being 104,019
for, and 47,238 against, separation.[13] The Tennessee Legislature did
not assume the functions of a secession convention till after the
commencement of hostilities; but from that date the forms of law ceased
to be seriously regarded. While the disunion party scored a present
triumph, loyalist leaders like Horace Maynard, Thomas A. R. Nelson and
Andrew Johnson, at the imminent risk of injury or even of death, were
speaking and working actively against the spirit of secession. The
strong Union feeling thus excited resulted ultimately in local
insurrections and in the meeting, June 17, of a convention at
Greeneville in which a remonstrance was adopted and a committee
appointed to petition the Legislature for the separation of East
Tennessee and such counties of Middle Tennessee as were willing to
coöperate in the formation of a new commonwealth. But the presence there
during the following years of veteran Confederate armies prevented Union
men from organizing a separate government, and saved the State from the
fate of Virginia. All who were known to have had a connection, or who
were suspected of sympathy, with this movement were especially obnoxious
to the secession party, and at the hands of soldiers were subjected to
many indignities. In various ways the feeling of opposition to the
Confederacy was intensified, and it was not long before measures of
retaliation were considered. Union people were quick to perceive the
advantage which the South derived from the use of railways within the
State, and, in expectation of assistance from Federal forces in
Kentucky, five railroad bridges were burned. East Tennesseeans, however,
were destined to be sorely disappointed in the matter of aid from the
Union army; and, without effective organization or arms, were easily
captured or dispersed. Of the former, many were sent as prisoners of war
to Alabama, hundreds were crowded into loathsome jails in the State and
others hanged, with circumstances of deliberate cruelty, near the scenes
of their alleged crimes.
These were among the outrages to which Mr. Lincoln referred in his
letter to the Federal commander. By Horace Maynard a Representative, and
Andrew Johnson a Senator, in Congress the President was kept very
accurately informed of events in the State and often importuned to
relieve their constituents. This he constantly endeavored to do, but his
intentions were effectually defeated by the inactivity of General Buell,
who cherished other plans for destroying his antagonist. More than two
years were to elapse, from the time President Lincoln urged his policy,
before Tennesseeans received any aid from Federal armies; long before
that time they had been ruthlessly punished for their patriotism, and
then their oppressors were chastised by the hand of an abler warrior
than General Buell.
Within a month from the date of President Lincoln’s letter of January 6
General Grant had possession of Fort Henry and, ten days later, February
16, received the surrender of Fort Donelson. Nashville, becoming unsafe,
was evacuated on February 23, 1862; the State appeared for the first
time to be slipping from the grasp of the Confederacy, and a question,
hitherto more or less academic, presented itself for practical
settlement. In the territory from which hostile armies were reluctantly
retiring there would be involved a great derangement in the
administration of local civil law from the necessary displacement there
of all officials heretofore acting in obedience to the Confederate
States.
By other Union victories in the Spring of 1862 the same situation
confronted the Federal Government in Arkansas, in North Carolina and in
Louisiana. Indeed, this identical question arose as early as 1861 in
Virginia and Missouri, but in the former the rebel government was
abrogated by a delegate convention that restored a loyal government from
which in due time sprang the separate State of West Virginia. In
Missouri a lawfully chosen convention appointed a provisional government
in sympathy with the Union. This subject, however, will be more
conveniently discussed elsewhere.
When General Johnston received tidings of the disaster at Donelson he
retired with his army to Murfreesboro, leaving Nashville, which he was
unable to protect, a scene of panic and dismay, first advising Governor
Harris to secure the public archives and convoke the Legislature
elsewhere. It was in these circumstances that President Lincoln, on the
same day, February 23, nominated, and the Senate, March 5, 1862,
confirmed, Andrew Johnson as military governor of Tennessee with the
rank of brigadier-general. As the commission antedates the action of the
Senate by two days the President, no doubt, consulted the leaders of
that body relative to the contemplated nomination, and received
assurance of its favorable consideration.
Nothing in any way connected with the appointment of Senator Johnson,
who was destined to act so conspicuous a part in the important and
difficult work of reconstruction, can fail to be of interest, and any
account of the execution of his office would be incomplete without some
observations on the nature of his commission of which the following is a
copy:
=War Department=, _March 3, 1862_.
_To the_ =Hon. Andrew Johnson=:
=Sir=: You are hereby appointed military governor of the State of
Tennessee, with authority to exercise and perform, within the limits
of that State, all and singular the powers, duties, and functions
pertaining to the office of military governor, including the power
to establish all necessary offices, tribunals, etc.
=Edwin M. Stanton=,
_Secretary of War_.[14]
Quoting the essential part of this document a recent coöperative work
has this comment: “The office [that of military governor] was new to the
laws and history of the State and country. Its powers and duties were
limited only by the will of one man, the occupant.”[15] From the
commission itself we derive our prime conception of both the nature of
the office and the functions which it comprehended. The authority of the
incumbent extended to the exercise, within the limits of Tennessee, of
all “the powers, duties, and functions pertaining to the office of
military governor.” Nothing in this language implies that the office was
of recent creation. Nor is its nature to be discovered by a perusal of
the supplemental authority contained in the President’s letter of
September 19, 1863, to Governor Johnson, for the official conduct of the
latter on his arrival in Nashville can not be seriously thought to have
been influenced by instructions received nineteen months later. It is
perfectly true, as Mr. Ira P. Jones, author of the chapter on
Reconstruction in Tennessee, asserts, that the office of military
governor had never been exercised within that State; but it is not a
fact that it was new to the laws and history of the “country,” if by
this indefinite expression he means the United States. During the war
with Mexico the American people had been made familiar with military
commissions and with military governors. Secretary Marcy prepared, June
3, 1846, for General Stephen W. Kearny the following instructions:
“Should you conquer and take possession of New Mexico and Upper
California, or considerable places in either, you will establish
temporary civil governments therein.”[16] To this direction general
rules of conduct were added, and the letter authorized the assurance
that “It is the wish and design of the United States to provide for them
[the people of New Mexico] a free government with the least possible
delay, similar to that which exists in our Territories.” By virtue of
this authority General Kearny appointed Charles Bent governor of New
Mexico. Mr. Polk in his Message of July 6, 1848, to Congress maintained
that with the termination of war his power to establish temporary civil
governments over New Mexico and California had ceased; the legality of
their previous existence he justified by the law of nations. By cession
to the United States, the government of Mexico no longer pretended to
any control over them.[17] President Polk, differing from other leaders
of his party, held that “until Congress shall act, the inhabitants will
be without any organized government.”[18] But Congress, notwithstanding
urgent appeals of the Executive, moved very deliberately in the matter
of abolishing the office of military governor. In May, 1847, Colonel
Richard B. Mason assumed the office of Governor and commander-in-chief
of the United States forces in California. Two months after ratification
of the treaty with Mexico he received notice of the fact, but no
intimation that the civil government instituted by the President was
discontinued. Without other instructions than an order to extend over
California “the revenue laws and tariff of the United States” he, as
well as his successor, General Riley, continued the existing government.
After affirming the legality of its institution the United States
Supreme Court (Cross _vs._ Harrison, p. 193, 16 Howard) says that the
existing government did not cease as a consequence of the restoration of
peace; the President might have dissolved it, but he did not do so.
Congress could have put an end to it, but that was not done. “The right
inference from the inaction of both is, that it was meant to be
continued until it had been legislatively changed.” In fact it was so
continued until the people in convention formed a government,
subsequently recognized by Congress, when California was admitted during
the autumn of 1850 as a State.
The authority, then, of both political departments, as well as the more
deliberate opinion of the judicial branch, of the General Government had
established a precedent with which Mr. Lincoln was thoroughly familiar;
for, by a singular coincidence, both he and Mr. Johnson were serving
together in the Thirtieth Congress, which began its first session in
December, 1847. They participated in, or were interested spectators of,
all those stirring scenes that marked the beginning of one of the last
legislative victories of slavery; so that this portion at least of
American history was not strange to either the President or the Senator
from Tennessee.
The question whether Tennessee was within or without the Union will be
reserved for more ample discussion farther on; it is sufficient to
observe here that its territory was held by an adverse party and its
government hostile to the national authority. If the administration of
Colonel Mason and his successor in California was not regarded by
President Lincoln as a sufficient basis for his action there was still
left an undoubted foundation. The appointment was deemed an element of
strength to the Union forces operating in Tennessee, and, in this view,
the act was entirely within the power of the President as
Commander-in-Chief of the army and navy of the United States. Though its
wisdom may be questioned and its results dismissed with a sneer, it was
not a novelty nor can his admirers claim for Mr. Lincoln the merit of
its invention; and if in its origin the office had a bearing on the
extension, its present application was not wholly unconnected with the
abolition of slavery. The remaining pages of this chapter and the two
succeeding ones will be employed in tracing rapidly the operation of the
system of military governors in those States in which it was seriously
attempted to be enforced.
The movements of contending armies had already obliterated in many
districts of Tennessee almost every trace of civil government, and when
State officials hurried away to Memphis, where Governor Harris had
reassembled the Legislature, they left behind them an uncontrolled mob
which General Forrest found it necessary to charge with his cavalry to
remove a portion of Confederate military stores that had not been
distributed among the poor or perished in the prevailing anarchy.[19]
General Grant had already, on February 22, from Fort Donelson, issued an
order that “no courts will be allowed to act under State authority, but
all cases coming within reach of the military arm will be adjudicated by
the authorities the Government has established within the State. Martial
law is therefore declared to extend over West Tennessee.” The order
added, “whenever a sufficient number of citizens return to their
allegiance to maintain law and order over the territory, the military
restriction here indicated will be removed.”[20] Union troops under
General Nelson having occupied the city on the 25th, Governor Johnson on
his arrival, March 12, 1862, from his seat in the United States Senate
was not under the necessity of employing the harsh discipline of General
Forrest to restore order in the deserted capital. For this part of his
career he was, however, severely censured by political adversaries in
Tennessee. Detached from their historical settings, indeed, his acts
could justly be described as tyrannical. But it is precisely these
figures in the back-ground that are necessary to harmonize the whole and
set before us in its proper light a truthful picture of the times. As
his professions preceded his administrative acts it is proper to
introduce this portion of the subject by quoting from a speech which he
delivered in Nashville the evening after his arrival. Five days later,
March 18, it was printed under the style of “An Appeal to the People” of
Tennessee. After some general observations on the tranquil and
prosperous existence of the State in the Union, and on the honors by
which many of her sons had been distinguished, he noticed the fact that
the very leaders of secession themselves had been the recipients of
Federal bounty and patronage; had taken oaths to support the
Constitution and yet labored to overturn Federal authority. Entering
fairly upon his theme, he continued:
Meanwhile the State Government has disappeared. The Executive has
abdicated; the Legislature has dissolved; the Judiciary is in
abeyance. The great ship of State ... has been suddenly abandoned by
its officers and mutinous crew, and left to float at the mercy of
the winds, and to be plundered by every rover upon the deep.
Pausing to enumerate many acts of spoliation, he resumes:
In such a lamentable crisis the Government of the United States
could not be unmindful of its high constitutional obligation to
guarantee to every State in this Union a republican form of
government, an obligation which every State has a direct and
immediate interest in having observed towards every other State....
This obligation the national Government is now attempting to
discharge. I have been appointed, in the absence of the regular and
established State authorities, as Military Governor for the time
being, to preserve the public property of the State, to give the
protection of law actively enforced to her citizens, and, as
speedily as may be, to restore her government to the same condition
as before the existing rebellion.
The “regular and established State authorities,” to whom Governor
Johnson refers, were, of course, none other than those officials who
administered affairs in Tennessee before the 6th of May. Of these some
had actually abandoned their offices, while others had subordinated
their functions to a power hostile to the constitution of the State. He
proceeded:
These offices must be filled temporarily, until the State shall be
restored so far to its accustomed quiet, that the people can
peaceably assemble at the ballot-box and select agents of their own
choice....
I shall, therefore, as early as practicable, designate for various
positions under the State and county governments, from among my
fellow-citizens, persons of probity and intelligence, and bearing
true allegiance to the Constitution and Government of the United
States, who will execute the functions of their respective offices
until their places can be filled by the action of the people. Their
authority, when their appointment shall have been made, will be
accordingly respected and observed.... Those who through the dark
and weary night of rebellion have maintained their allegiance to the
Federal Government will be honored. The erring and misguided will be
welcomed on their return. And while it may become necessary, in
vindicating the violated majesty of the law, and in reasserting its
imperial sway, to punish intelligent and conscious treason in high
places, no merely retaliatory or vindictive policy will be
adopted.[21]
To all who in private and unofficial capacity had assumed an attitude of
hostility to the Government amnesty was offered for all past acts and
declarations upon condition of yielding obedience to the supremacy of
the laws. This the Governor advised them to do. Though the “Appeal,”
brief, clear and characterized by the best temper, is a state paper of
decided merit, there were many classes still residing at the capital
upon whom it made little impression. The mayor and the city council were
ordered to take the oath of allegiance to the United States, and on
their refusal were imprisoned. Of the harshness of this measure it need
only be observed that the essence of government is to govern, and had
the new executive failed on this occasion to assert authority his
administration would have been wrecked at the outset. For printing
seditious matter the press was placed under restraint, and within a few
months it was found necessary to punish with unusual severity, even
ministers of the gospel. Clergymen, with a few exceptions, were not only
hostile to the Union but actually encouraged treason from their pulpits.
These offenders Governor Johnson summoned to take the oath of allegiance
or to depart from the State. They appeared before him, as commanded to,
refused compliance, but asked time for deliberation; this being granted,
to the full extent desired, and still persisting in their refusal they
were placed in confinement. That they were not proceeded against with
undue haste appears from an entry in a diary kept by one of Governor
Johnson’s biographers which fixes the date as June 28.[22] Three months
had fully elapsed since the arrival of Mr. Johnson before the ministers
were punished for their seditious utterances. To prevent interference
with his executive functions he sometimes imprisoned judges. Other
measures no less arbitrary have been the subject of much criticism. He
declared that whenever a loyal citizen was maltreated five or more
sympathizers with the Rebellion should be arrested and dealt with as the
nature of the case appeared to require. When the property of Union men
was destroyed remuneration should be made them from the property of the
disloyal. The President seems to have approved of these reprisals.
Nothing more clearly shows the demoralized condition of society in
Tennessee than the necessity of adopting measures similar to those
employed eight centuries before by the Danish and Norman conquerors of
England to protect their followers from private assassination by the
natives. With the natural leaders of the people, including bankers,
physicians and clergymen, encouraging treason, men of inferior
intelligence and station could not be expected to remain peaceful and
contented citizens, and as preachers of sedition seldom lack numerous
and sympathetic audiences the spirit of lawlessness increased. The
Governor himself was threatened with assassination in the public streets
and in public meetings, but he set such menaces at defiance and on at
least one occasion addressed an assembly with his pistol on a desk
before him.
But the repression of the disloyal and the restoration of order by no
means included the whole of his duties. Functions not less important
remain to be noticed. To the duties of governor and general he added
those of quartermaster and judge. Though thousands of loyal people
flocked to him for arms and supplies, he proved equal to every demand,
and from their number raised an army that did gallant service in the
field. He fed, clothed and sheltered the poor without regard to the army
in which their natural protectors were serving. Thus redressing
grievances, relieving want and reinstating courts he worked with an
intelligent and tireless energy, and when the timid prudence of General
Buell would have allowed Nashville to fall into the hands of the enemy
“the courage of Governor Johnson,” said a panegyrist, “stood a bulwark
for its defence.”[23] He had been scarcely three months in office when
President Lincoln described him as “a true and valuable man,
indispensable to us in Tennessee.” His zeal, his intense fidelity to the
Union, his tremendous energy and undoubted courage peculiarly fitted him
to rule in turbulent times. At the outset the only agencies left for the
protection of life, liberty and property were force and arbitrary will;
these he did not hesitate to employ.
The foregoing account does not notice his activity in another field. His
ultimate object, the establishment of civil authority throughout
Tennessee, was kept constantly in view. To prepare for this event he
addressed in May, 1862, large assemblies at Nashville and Murfreesboro,
and in June at Columbia and Shelbyville.[24] This work, however, was
brought suddenly to an end later in the summer by General Bragg’s raid
into Kentucky.
From what has been related it appears, and the opinion will grow
stronger with the progress of this narrative, that in appointing a
military governor of Tennessee President Lincoln intended no more than
to revive an office already known to the people of the United States;
and though Mr. Johnson was expected ultimately to reinaugurate a loyal
government throughout the State, his office was regarded primarily as an
inexpensive means of holding territory wrested from, and assisting in
military operations against, an enemy. Indeed, it is only in this view
that his administration of the office can be regarded as a success, and
that it was so considered in the North his nomination on the ticket with
Mr. Lincoln is undoubted proof.
Besides several colored regiments, the records for 1863 show that 25,000
Tennesseeans were then serving in the Union army, and every succeeding
month increased their number.[25] That the political advantage to be
gained by restoring a loyal government was not the only or even the
principal purpose of the President may be fairly inferred from the
following letter:
I am told you have at least thought of raising a negro military
force. In my opinion the country now needs no specific thing so much
as some man of your ability and position to go to this work. When I
speak of your position, I mean that of an eminent citizen of a slave
state and himself a slaveholder. The colored population is the great
available and yet un-availed of force for restoring the Union. The
bare sight of 50,000 armed and drilled black soldiers upon the banks
of the Mississippi would end the rebellion at once; and who doubts
that we can present that sight if we but take hold in earnest? If
you have been thinking of it, please do not dismiss the thought.[26]
Besides supporting the view of the military governors taken above, this
letter also makes it evident that the pressure of events had already
convinced Mr. Lincoln that to save the Union it was necessary to possess
the untrammeled use of every national resource.
As early as June 8, 1862, the State was included in the department of
General Halleck, who ten days later was requested by Mr. Lincoln to
report any information of value relative thereto. The thought of a
movement into East Tennessee was in the mind of the President again on
June 30, when he informed the commander that he regarded the possession
of the railroad near Cleveland fully as important as the taking of
Richmond. Halleck, concurring in this opinion, telegraphed Buell that
“the capture of East Tennessee should be the main object of the
campaign,” the department commander believing its occupation would put
an end to guerrilla warfare both in that region and Kentucky.
The inactivity of General Rosecrans for six months after the battle of
Murfreesboro left in the interior of the State a strong Confederate
force whose presence discouraged all but the most pronounced loyalists;
these, by means of meetings and speeches, kept a latent Union feeling
alive. A convention, called by Brownlow, Maynard and others, was held at
Nashville, July 1, 1863. Delegates were in attendance from forty
counties; they took an oath of allegiance to the United States, and in a
set of resolutions pronounced the various secession laws and ordinances
void. Deeming it vitally important to choose a legislature, they invited
Governor Johnson to issue writs of election as soon as expedient; with
this request, however, he did not then think it prudent to comply.
Other eyes were observing with interest the progress of events within
the State. General Hurlbut, writing from Memphis, August 11, 1863,
relative to the political situation in Arkansas, said he was satisfied
that Tennessee was “ready, by overwhelming majorities, to repeal the act
of secession, establish a fair system of gradual emancipation, and
tender herself back to the Union. I have discouraged [he said] any
action on this subject here until East Tennessee is delivered. When that
is done, so that her powerful voice may be heard, let Governor Johnson
call an election for members of the Legislature, and that Legislature
call a Convention, and in sixty days the work will be done.”[27]
This desirable event was not long delayed, for by brilliant though
bloodless victories both Knoxville and Chattanooga early in the
following month were in possession of Federal armies. Then President
Lincoln wrote his letter of September 11, which, because of its great
importance, deserves to be reproduced in full:
All Tennessee is now clear of armed insurrectionists. You need not
to be reminded that it is the nick of time for reinaugurating a
loyal State government. Not a moment should be lost. You and the
coöperating friends there can better judge of the ways and means
than can be judged by any here. I only offer a few suggestions.
The reinauguration must not be such as to give control of the
State and its representation in Congress to the enemies of the
Union, driving its friends there into political exile. The whole
struggle for Tennessee will have been profitless to both State and
nation if it so ends that Governor Johnson is put down and
Governor Harris is put up. It must not be so. You must have it
otherwise. Let the reconstruction be the work of such men only as
can be trusted for the Union. Exclude all others, and trust that
your government so organized will be recognized here as being the
one of republican form to be guaranteed to the State, and to be
protected against invasion and domestic violence. It is something
on the question of time to remember that it cannot be known who is
next to occupy the position I now hold, nor what he will do. I see
that you have declared in favor of emancipation in Tennessee, for
which may God bless you. Get emancipation into your new State
Government—Constitution—and there will be no such word as fail for
your case. The raising of colored troops, I think, will greatly
help every way.[28]
The reference in this communication to emancipation is explained by the
fact that, in deference to the wishes of Andrew Johnson and other
Tennessee loyalists, the President in his proclamation of January 1,
1863, had not mentioned that State.[29]
Believing that his commission as military governor did not confer upon
him powers adequate to every emergency that might arise in the important
work of restoring a loyal government Mr. Johnson, to supply this
deficiency, prepared a letter which he submitted for the approval of
President Lincoln, who amended or modified it to read as follows:
In addition to the matters contained in the orders and instructions
given you by the Secretary of War, you are hereby authorized to
exercise such powers as may be necessary and proper to enable the
loyal people of Tennessee to present such a republican form of State
government as will entitle the State to the guaranty of the United
States therefor, and to be protected under such State government by
the United States against invasion and domestic violence, all
according to the fourth section of the fourth article of the
Constitution of the United States.[30]
This supplemental authority is dated September 19, and the private
letter enclosing it informs Governor Johnson why his draft was altered.
It was about this time, while the President was thus urging Governor
Johnson, that General Rosecrans, surrounded by a victorious enemy,
inquired of Mr. Lincoln whether it would not be well “to offer a general
amnesty to all officers and soldiers in the Rebellion?” In his reply
next day the President, referring first, as was his wont, to the
military situation, added, “I intend doing something like what you
suggest whenever the case shall appear ripe enough to have it accepted
in the true understanding rather than as a confession of weakness and
fear.”[31] The removal soon after of General Rosecrans from his command
and the fortunate appearance at Chattanooga of those great soldiers of
the first rank, Grant, Sherman, Thomas and Sheridan, made at Lookout
Mountain and Mission Ridge the occasion which the President so much
desired, and on December 8, 1863, he issued his famous Proclamation of
Amnesty and Reconstruction, a copy of which was transmitted with his
third annual message to Congress. The impression which its candid tone
produces on the mind of a student to-day was the impression made at the
time of its appearance upon thoughtful and enlightened men everywhere.
Nicolay and Hay in an interesting chapter of their valuable history
describe the satisfaction, and even enthusiasm, with which it was
received by the adherents of all parties in Congress. This proclamation,
around which the later controversy raged, was authorized by act of
Congress approved July 17, 1862, which, among other provisions,
empowered the President “at any time” thereafter “to extend to persons
who may have participated in the existing Rebellion in any State or part
thereof, pardon and amnesty, with such exceptions and at such time and
on such conditions as he may deem expedient for the public welfare.” The
time for the exercise of this discretion Mr. Lincoln believed had now
arrived. Like every measure conceived in his fruitful mind it had been
maturely considered and was especially fortunate in being introduced by
the concluding paragraphs of the message. The very note of sincerity
itself rings in these weighty lines. Perhaps it was the suggestion of
unuttered arguments that gave a temporary adherence to the Executive
plan, which, we are told, was put forth because “It is now desired by
some persons heretofore engaged in said rebellion to resume their
allegiance to the United States, and to reinaugurate loyal State
governments within and for their respective States.” The proclamation
informed “all persons who have, directly or by implication, participated
in the existing rebellion, except as hereinafter excepted, that a full
pardon is hereby granted to them and each of them, with restoration of
all rights of property, except as to slaves, and in property cases where
rights of third parties shall have intervened, and upon the condition
that every such person shall take and subscribe an oath, and
thenceforward keep and maintain said oath inviolate; and which oath
shall be registered for permanent preservation.” This oath bound the
subscriber thenceforth to “faithfully support, protect, and defend the
Constitution of the United States, and the union of the States
thereunder”; to “abide by and faithfully support all acts of Congress
passed during the existing rebellion with reference to slaves” unless
repealed, modified or held void by Congress, or by decision of the
Supreme Court; to support “all proclamations of the President made
during the existing rebellion having reference to slaves, so long and so
far as not modified or declared void by decision of the Supreme Court.”
The classes excepted from the benefits of the amnesty were all persons
“who are, or shall have been, civil or diplomatic officers or agents of
the so-called Confederate Government; all who have left judicial
stations under the United States to aid the rebellion; all who are, or
shall have been, military or naval officers of said so-called
Confederate Government above the rank of colonel in the army or
lieutenant in the navy; all who left seats in the United States Congress
to aid the rebellion; all who resigned commissions in the Army or Navy
of the United States and afterward aided the rebellion; and all who have
engaged in any way in treating colored persons, or white persons in
charge of such, otherwise than lawfully as prisoners of war, and which
persons may have been found in the United States service, as soldiers,
seamen, or in any other capacity.”[32]
The proclamation provided further that whenever, in any of the States in
rebellion, “a number of persons, not less than one tenth in number of
the votes cast in such State at the presidential election” of 1860,
“each having taken the oath aforesaid and not having since violated it,
and being a qualified voter by the election law of the State existing
immediately before the so-called act of secession, and excluding all
others, shall reëstablish a State government which shall be republican,
and in nowise contravening said oath, such shall be recognized as the
true government of the State and the State shall receive thereunder the
benefits of the Constitutional provision which declares that ‘The United
States shall guaranty to every State in this Union a republican form of
Government, and shall protect each of them against invasion; and, on
application of the legislature, or of the executive (when the
legislature cannot be convened), against domestic violence.’”
Any provision adopted by such State relative to its freed people “which
shall recognize and declare their permanent freedom, provide for their
education, and which may yet be consistent as a temporary arrangement
with their present condition as a laboring, landless, and homeless
class, will not be objected to by the national executive.” In
constructing a loyal government in any State, it was thought not
improper to suggest that “the name of the State, the boundary, the
subdivisions, the constitution, and the general code of laws, as before
the rebellion, be maintained, subject only to the modifications made
necessary by the conditions hereinbefore stated, and such others, if
any, not contravening said conditions, and which may be deemed expedient
by those framing the new State government.”
To avoid every occasion of misunderstanding it was expressly stated that
the proclamation “has no reference to States wherein loyal State
governments have all the while been maintained.” The President
disclaimed any authority to admit members to seats in Congress, each
House being “the judge of the elections, returns, and qualifications of
its own members.”[33]
In conclusion it was observed that “while the mode presented is the best
the executive can suggest, with his present impressions, it must not be
understood that no other possible mode would be acceptable.”[34]
To get an enrollment of those willing to take the oath prescribed in the
amnesty proclamation the President, about the middle of January, 1864,
sent an agent to Tennessee, as he had already sent one to Louisiana and
to Arkansas. About the same time Governor Johnson himself was
considering the subject of reconstruction; and on the 21st, to begin
proceedings, called a public meeting at Nashville. It was on this
occasion that he said: “Treason must be made odious, traitors must be
punished and impoverished;” slavery he pronounced dead and declared that
reconstruction must leave it out of view. The meeting, which was largely
attended, adopted resolutions recommending a constitutional convention
and pledged support of only those candidates who favored immediate and
universal emancipation. The Governor, however, was cautious, and,
January 26, 1864, issued a call for an election, on the first Saturday
of March following, for the choice of only county officers.
The ex-Confederate and the loyalist having been placed by the amnesty
proclamation on an equal footing, some dissatisfaction was aroused among
unconditional Union men. To retain the confidence of this class and to
set at rest the hostile feeling thus excited in the State, Governor
Johnson framed the oath of allegiance more stringently than Mr. Lincoln
had done. This variance occasioned discussion and delay and brought
inquiries and protests to the President, who, to prevent confusion,
telegraphed, February 20, 1864, Warren Jordan, of Nashville, as follows:
In county elections you had better stand by Governor Johnson’s plan;
otherwise you will have conflict and confusion. I have seen his
plan.[35]
A week later he assured the Hon. E. H. East, Secretary of State for
Tennessee, that
There is no conflict between the oath of amnesty in my proclamation
of eighth December, 1863, and that prescribed by Governor Johnson in
his proclamation of the twenty-sixth ultimo.[36]
While it is perfectly true that no discrepancy existed between the
proclamation of the President and that of the military governor, the
latter required an additional test. This the communication to Mr. East
does not discuss.
To avoid, however, any possible mischief from this source Mr. Lincoln,
March 26, issued a supplemental proclamation which explained that the
amnesty applied only to “persons who being yet at large and free from
any arrest, confinement, or duress, shall voluntarily come forward and
take the said oath, with the purpose of restoring peace and establishing
the national authority.”[37] Prisoners excluded from the amnesty offered
in the proclamation of December 8, like all other offenders, might apply
to the executive for clemency and have their applications receive due
consideration. This oath, it was made known, could be taken before any
commissioned officer of the United States, civil, military or naval, or
before any officer authorized to administer oaths, in a State or
Territory not in insurrection. Such officers were empowered to give
certificates thereon to persons by whom the oath was taken and
subscribed. The original records, after transmission to the Department
of State, were to be there deposited and to remain in the Government
archives. The Secretary of State was required to keep a register of such
oaths and upon application to issue certificates in proper cases in the
customary form.
Meanwhile an election, the returns of which are extremely meagre, had
been held on March 5 for the choice of county officers. Though the event
was not without influence in confirming the faith of Unionists, it was
chiefly of value in attracting the attention of the disloyal to the
chances afforded by the proclamation of rehabilitating themselves in
their former political rights. The result, however, was not so favorable
as was expected by Governor Johnson or the President, and reconstruction
in Tennessee once more sank to rest. From this condition it was again
revived by the irrepressible Union men of the State. The East Tennessee
convention of 1861, by appointing a permanent committee, had kept its
organization alive. In April or May, 1864, this body called a convention
at Knoxville to discuss reconstruction. Of this gathering one element
favored the Crittenden Resolutions; the other, immediate emancipation.
Probably it was this antagonism that prevented further action. The next
we hear is that Brownlow and others signed a call for a second
convention, which was held at Nashville on September 5. In this body
forty or fifty counties were represented, some of them irregularly; that
is, by volunteer delegates. This assembly recommended the election of a
constitutional convention, the abolition of slavery in the State, and
provided for taking part in the approaching Presidential election. The
programme, however, was only partially carried out. On September 30,
Governor Johnson issued a proclamation for holding the election, at
which Union voters, so far as the unsettled condition of military
operations permitted, cast their ballots for electors of President and
Vice-President. It does not appear that in this election any attempt was
made to choose a governor, a legislature or a constitutional convention;
but that which met in July, 1863, constituted an executive committee,
composed of five members from each division of the State, which after
the Presidential election issued calls for a State convention at
Nashville, December 19, 1864. “The people meet,” said the call, “to take
such steps as wisdom may direct to restore the State of Tennessee to its
once honored status in the great national Union.
* * * * *
“If you cannot meet in your counties, come upon your own personal
responsibility. It is the assembling of Union men for the restoration of
their own commonwealth to life and a career of success.”[38]
Hood’s advance upon Nashville preventing a response to this address, the
convention did not meet till January 9, 1865. The enemy had then been
dispersed. The State being free from further alarms of war, the
convention met and proposed important alterations in the State
constitution.
The first article provided: “That slavery and involuntary servitude,
except as a punishment for crime, whereof the party shall have been duly
convicted, are hereby forever abolished and prohibited throughout the
State”; also that “The legislature shall make no law recognizing the
right of property in man.” The old constitution of Tennessee prohibited
the assembly from passing laws to emancipate slaves without the consent
of the owner; that prohibition was now removed. “The declaration of
independence and ordinance dissolving the federal relations between the
State of Tennessee and the United States of America,” passed by the
Legislature, May 6, 1861, was abrogated and declared “an act of treason
and usurpation, unconstitutional, null and void.” All laws, ordinances,
and resolutions of the usurped State government passed on and after the
6th day of May, 1861, providing for the issuance of State bonds; also
all notes of the Bank of Tennessee or any of its branches issued on or
after May 6, 1861, and all debts created in the name of the State by
said authority were declared unconstitutional, null and void. Future
legislatures were restrained from the redemption of said bonds. It was
further provided that “The qualification of voters and the limitation of
the elective franchise may be determined by the general assembly, which
shall first assemble under the amended constitution.”
The convention completed its labors on January 26, 1865. The amendatory
articles were submitted, February 22, to the people, and ratified by a
vote of 21,104 to 40. The schedule provided in the event of ratification
that the loyal people of the State should, on the 4th of March next
thereafter, proceed by _general ticket_ to elect a governor and members
to the general assembly to meet in the capitol at Nashville on the first
Monday of April, 1865.
A proclamation of Governor Johnson, issued on January 26, referred to
the respectable character of the convention and commended its wisdom in
submitting for the approval of the electors the result of its
deliberations. His executive powers had been employed to enable the
people freely to express their judgment on the grave question before
them. Provision, he declared, would be made to collect the sentiments of
loyal Tennesseeans in the army. The paper concludes with this vigorous
exhortation: “Strike down at one blow the institution of slavery, remove
the disturbing element from your midst, and by united action restore the
State to its ancient moorings again, and you may confidently expect the
speedy return of peace, happiness, and prosperity.”[39]
About a month later, February 25, he had the happiness to congratulate
the people of Tennessee on the favorable result of the election. By
their solemn act at the ballot-box the shackles had been stricken from
the limbs of more than 275,000 bondmen.
The convention which proposed the constitutional amendments had, in
anticipation of its ratification, nominated William G. [“Parson”]
Brownlow for Governor, and recommended a full legislative ticket. The
nominee of the convention was chosen March 4, almost without opposition,
receiving 23,352 votes against 35 scattering. Having been elected on a
general ticket the members of both the Senate and House of
Representatives received the same support as the Governor. The
Legislature met at Nashville, and in a few days thereafter Mr. Brownlow
was inaugurated. Civil administration was thus formally begun.
That the successive steps to restoration in Tennessee may be easily
traced, the narrative has not been interrupted to relate even matters of
undoubted importance. Almost a year before the occurrences described,
the Republican national convention had assembled in the city of
Baltimore, and on June 6, 1864, unanimously nominated Andrew Johnson for
Vice-President on the ticket with Mr. Lincoln. Tidings of the fact
aroused great enthusiasm when it became known in Nashville. In
addressing an immense meeting called for that occasion Governor Johnson,
among other things, said: “While society is in this disordered state,
and we are seeking security, let us fix the foundations of our
government on principles of eternal justice, which will endure for all
time. There are those in our midst who are for perpetuating the
institution of slavery. Let me say to you, Tennesseeans, and men from
the Northern States, that slavery is dead. It was not murdered by me. I
told you long ago what the result would be if you endeavored to go out
of the Union to save slavery; and that the result would be bloodshed,
rapine, devastated fields, plundered villages and cities; and therefore
I urged you to remain in the Union. In trying to save slavery you killed
it, and lost your own freedom.”[40]
In his letter to Hon. William Dennison, accepting the nomination, he
wrote:
The authority of the Government is supreme, and will admit of no
rivalry. No institution can rise above it whether it be slavery or
any organized power. In our happy form of government all must be
subordinate to the will of the people, when reflected through the
Constitution and the laws made pursuant thereto—State or Federal.
This great principle lies at the foundation of every government, and
cannot be disregarded without the destruction of the government
itself.
In accepting the nomination I might here close, but I cannot forego
the opportunity of saying to my old friends of the Democratic party
_proper_, with whom I have so long and pleasantly been associated,
that the hour has now come when that great party can justly
vindicate its devotion to true democratic policy and measures of
expediency. The war is a war of great principles. It involves the
supremacy and life of the Government itself. If the rebellion
triumphs, free government—North and South—fails. If, on the other
hand, the Government is successful, as I do not doubt, its destiny
is fixed, its basis permanent and enduring, and its career of honor
and glory just begun. In a great contest like this, for the
existence of free government, the path of duty is patriotism and
principle. Minor considerations and questions of administrative
policy should give way to the higher duty _of first preserving the
Government_, and then there will be time enough to wrangle over the
men and measures pertaining to its administration.[41]
For reasons at which Mr. Lincoln hinted in his letter of March 26, 1863,
few men in Congress exerted in the beginning of the war so decided an
influence upon public opinion in the North as did Mr. Johnson. His
conduct as military governor in no way diminished this popularity. His
courage in that trying position no less than his devotion to the
interests of the Union won him ardent admirers in every loyal State.
Vice-President Hamlin appears to have been the victim of an intrigue
which represented him as being no material source of strength to the
government and as scarcely loyal to the administration. This injurious
suspicion, which seems to have had no substantial basis in truth,
happened to coincide with a growing conviction that the Republican party
should strengthen itself by placing on the ticket with Lincoln some
prominent leader of the opposition. In this connection the names of
General Butler, John A. Dix, Daniel S. Dickinson and Andrew Johnson were
mentioned. The last named was charged in his administration of the
office of military governor with harshness and even with oppression.
Investigation proved these rumors to be without foundation, and Mr.
Lincoln was not displeased to find them groundless. It does not appear
that he was especially favorable to Johnson, but he regarded him as
indispensable to the Union cause in Tennessee; Johnson was a
slave-holder, was somewhat more outspoken than Butler or Dix, and a more
conspicuous representative of the large class known as War Democrats;
above all he was an able exponent of Southern Union sentiment and he
came from the very heart of the Confederacy. Perhaps no single element
of strength made him more acceptable to the majority of the convention
than this last consideration. Even these qualifications might not have
singled him out for the distinction conferred were it not for the
enthusiasm created by a remarkable speech of Horace Maynard, which
mentioned Mr. Johnson as a man who “stood in the furnace of treason.”
His administration as military governor had been distinguished for vigor
and ability, and it does not appear that the radical Republicans then
regarded his State without the Union. Some of his measures were
undoubtedly severe, but the peculiar situation in Tennessee required the
employment of methods not adapted to times of peace. Mr. Lincoln could
not, of course, show his hand in the Baltimore convention. In fact he
repeatedly declined to interfere.[42]
On October 15, 1864, the ten electors on the McClellan ticket
presented through Mr. John Lellyett, one of their number, a protest
to the President against the proclamation published by Governor
Johnson relative to the pending election. His paper, they asserted,
contained provisions for holding elections which differed materially
from the mode prescribed by the laws of Tennessee. The proclamation,
it was alleged, would admit persons to vote who were not entitled by
the State constitution to participate in the election; by another
provision which authorized the opening of but one polling-place in
each county, many legal voters would be unable to exercise the
franchise. The unusual and impracticable test oath proposed, was
stated as a further grievance, and they complained generally of
military interference with the freedom of elections. To their
representations Mr. Lincoln replied orally that General McClellan
and his friends could manage their side of the contest in their own
way. He could manage his side of it in his way.[43] In a written
reply of the 22d, however, the President said that he perceived no
military reason for interfering in the matter, and on the same
occasion reminded the protestants that the conducting of a
Presidential election in Tennessee under the old code had become an
impossibility.[44]
In their reply to the written communication of the President, they
asserted that an orderly meeting of General McClellan’s friends had been
broken up by Union soldiers, and a reign of terror inaugurated in
Nashville. These acts having been countenanced by Governor Johnson, they
announced the withdrawal of the McClellan electoral ticket in
Tennessee.[45]
In these circumstances the Union electors were, of course, chosen; but
their votes, though offered, were not counted by Congress in the joint
convention of February 8, 1865, for the reason that Tennessee was on
November 8 preceding in such a state that no free election was held.[46]
-----
Footnote 1:
McPherson’s Political History of the United States, p. 1.
Footnote 2:
McPherson’s Pol. Hist., pp. 389–399; “Parson” Brownlow’s Book, pp. 54,
159, 160; Lalor’s Cyclopedia of Political Science, Political Economy
and United States History, Vol. III. p. 698.
Footnote 3:
Letters and State Papers of Abraham Lincoln, Vol. II. p. 112. The
edition of Nicolay and Hay is used throughout.
Footnote 4:
The Loyal Mountaineers of Tennessee, p. 24.
Footnote 5:
More correctly, 301,056. Ibid.
Footnote 6:
The Loyal Mountaineers of Tennessee, p. 32.
Footnote 7:
Ibid.
Footnote 8:
Thirty years before President Lincoln published his Emancipation
Proclamation Great Britain abolished slavery throughout her colonies.
Naturally this action was viewed in no friendly spirit by the slave
interest in America, for it brought the free negro to the very door of
the Southern States, and though it was regarded as a menace to the
“peculiar institution,” it was not until a positive loss was sustained
that any controversy arose with England. In October, 1841, the brig
_Creole_, of Richmond, with a cargo of 135 slaves left Hampton Roads
for New Orleans. The negroes, under Madison Washington, killed one of
the owners, took possession of the vessel and steered her into the
port of Nassau. There those slaves not expressly charged with murder
were set at liberty, and though the administration demanded their
surrender they were not given up. The experience of the _Creole_ was
not singular, several cases of a similar nature being recorded. These
facts showed the danger of navigating the Bahama channel after 1833,
and at least one reason for preferring the overland route down the
Tennessee valley was an expectation of avoiding such accidents.—(See
Wilson’s Rise and Fall of the Slave Power, Vol. I. pp. 443–444;
Lalor’s Cyclopedia of Political Science, etc., Vol. I. pp. 709–710.)
Footnote 9:
Brownlow’s Book, p. 52.
Footnote 10:
The Loyal Mountaineers of Tennessee, pp. 80–81.
Footnote 11:
Brownlow’s Book, p. 67.
Footnote 12:
Art. I. sec. 10, Constitution of the United States.
Footnote 13:
McPherson’s Pol. Hist., p. 5.
Footnote 14:
Misc. Doc. No. 55, H. of R., 1 Sess. 39th Cong., p. 5.
Footnote 15:
Why The Solid South? p. 170.
Footnote 16:
Cutt’s Conquest of California and New Mexico, p. 246.
Footnote 17:
Statesman’s Manual, Vol. IV. p. 1742.
Footnote 18:
Ibid.
Footnote 19:
The Lost Cause, p. 209.
Footnote 20:
Ann. Cycl., 1862, p. 763.
Footnote 21:
Life and Speeches of Andrew Johnson, pp. 451–456. Boston: Little,
Brown & Co. 1866.
Footnote 22:
Life, Speeches, and Services of Andrew Johnson, pp. 101–104.
Philadelphia: T. B. Peterson & Brothers.
Footnote 23:
Memorial Addresses on the Life and Character of Andrew Johnson, pp.
76–80; Memoir by Frank Moore, pp. xxvi-xxvii in Life and Speeches of
Andrew Johnson. Boston: Little, Brown & Co.
Footnote 24:
Life of Andrew Johnson, pp. 98–101; Philadelphia: T. B. Peterson &
Brothers.
Footnote 25:
Ann. Cycl., 1863, p. 828.
Footnote 26:
Letters and State Papers of Abraham Lincoln, Vol. II. p. 318.
Footnote 27:
Abraham Lincoln, A History by Nicolay & Hay, Vol. VIII. p. 440.
Footnote 28:
Letters and State Papers of Lincoln, Vol. II. p. 405.
Footnote 29:
History of Abraham Lincoln, by Isaac N. Arnold, p. 303.
Footnote 30:
Letters and State Papers of Abraham Lincoln, Vol. II. p. 408.
Footnote 31:
Ibid., p. 419.
Footnote 32:
Letters and State Papers of Lincoln, Vol. II. p. 443.
Footnote 33:
Art. I. sec. 5, Constitution of the U. S.
Footnote 34:
Letters and State Papers of Lincoln, Vol. II. pp. 443–444.
Footnote 35:
Ibid., p. 486.
Footnote 36:
Letters and State Papers of Lincoln, Vol. II. p. 487.
Footnote 37:
Ibid., pp. 504–505.
Footnote 38:
Misc. Doc. No. 55, p. 5, H. of R., 1 Sess. 39th Cong.
Footnote 39:
Misc. Doc. No. 55, p. 9, H. of R., 1 Sess. 39th Cong.
Footnote 40:
Life of Andrew Johnson, pp. 159–160.
Footnote 41:
Life of Andrew Johnson, pp. 160–161. New York: D. Appleton & Co.,
1866.
Footnote 42:
McClure’s Lincoln and Men of War Times, pp. 106–108; Blaine’s Twenty
Years of Congress, Vol. II. p. 7; Hamlin’s Life and Times of Hannibal
Hamlin, pp. 449–489 and 591–615.
Footnote 43:
McPherson’s Pol. Hist., pp. 438–439.
Footnote 44:
Ibid., p. 425.
Footnote 45:
Ibid., p. 441.
Footnote 46:
For a discussion of this subject see Chapter IX.
II
LOUISIANA
The first movement toward reconstruction in Louisiana, as in the case of
Tennessee, was bound up with the war powers of the President, and, no
doubt, was made with some expectation of aiding his military plans. The
thought of restoring a loyal government there proceeded quite naturally
from the peculiar situation in the State. Though not so nearly unanimous
for secession as South Carolina, her people acted with energy and
promptness when they received tidings of “this last insult and outrage,”
as the election of Mr. Lincoln was sensationally styled.[47] Three days
were deemed sufficient for deliberation, and the convention, January 25,
1861, passed an ordinance of secession. Two weeks before this assembly
met at Baton Rouge, the arsenal and the forts, a public building and a
revenue cutter had been seized by State troops from New Orleans. In the
mint and the custom house of that city more than half a million dollars
was secured for the Confederate States, and in accepting these funds the
Montgomery Congress expressed its “high sense of the patriotic
liberality” of Louisiana.[48] This act of generosity, however, loses
much of its merit when it is remembered that both the coin and bullion
in the mint, as well as the customs, belonged to the Federal government.
Besides, there was then no scarcity of money in the State, for Northern
enterprise had found for her cotton and her sugar profitable markets
both at home and abroad. It was benefits of this sort, enjoyed in the
Union, that enabled Governor Moore in January, 1861, to report to his
Legislature an overflowing treasury.[49] This undoubted prosperity
served only to aggravate the war fever. Enthusiasm in New Orleans was
only less ardent and general than in Charleston. Business was almost
suspended, and by the first of June no less than 16,000 residents of
Louisiana were serving in the Confederate army.[50]
President Lincoln’s proclamation of April 19 preceding had inaugurated a
blockade of every port within the State. The early days of July
witnessed the disappearance of Governor Moore’s boasted surplus, and
during the summer New Orleans became bankrupt;[51] her foreign commerce
was destroyed by the blockade, her credit had vanished. Though
enlistments continued without interruption, signs of financial distress
multiplied with the approach of winter. Rebellion, it was soon
discovered, was not attended with unmixed blessings; bad government had
produced its usual consequences, and when Governor Taylor, late in the
summer of 1862, undertook to raise an army for the defence of his State
he was surprised at the universal apathy; neglect and disaster had
brought disunionists to a condition little short of hostility to the
Richmond government.[52]
Union men in southern Louisiana had not been unobservant of these signs;
permanent residents of this portion of the State had, for the most part,
maintained their loyalty to the General Government. Indeed, a decided
majority of them in the election of 1860 had voted for Bell and Douglas,
and though here, as elsewhere in the South, ardent secessionists were
found, the proceedings in the convention took the Union men by
surprise.[53] In the interval they had refrained from violence, but had
not become reconciled to oppression.
The importance of New Orleans to their cause had not been overlooked by
Confederate authorities, and that city was held firmly in their grasp
until the fleet of Captain Farragut, toward the close of April, 1862,
steamed up in hostile array before its defences. The occupation by
General Butler’s army of this strategic position ended in southern
Louisiana the activity of the more extreme secessionists, and though
some restlessness at the presence of Federal forces was pretended by
even Union men, they had not until the surrender made any serious effort
to help themselves. Under protection of the army, however, they
commenced immediately to form Union associations for the purpose of
developing the loyal sentiment in this part of the State. Resolutions
recommending an election were passed by these organizations; newspapers
discussed the question, and in various ways it was forced upon the
attention of the President.[54] The more prudent and intelligent among
them began under encouragement of Federal troops to consider measures
for relief; the less practical commenced writing complaints to friends
in the North.
In a private letter of July 26, 1862, to Hon. Reverdy Johnson, then in
New Orleans investigating General Butler’s relations with foreign
consuls, Mr. Lincoln, noticing a reference to the restlessness of the
people under the rule of General Phelps, asks the Maryland Senator to
pardon him for believing the complaint “a false pretense.” A way to
avert the inconveniences arising from military occupation was for the
people of Louisiana “simply to take their place in the Union upon the
old terms.”[55] Writing two days later to Cuthbert Bullett, a Southern
gentleman who appears to have enjoyed his personal esteem and
confidence, the President, after mentioning difficulties in the way of
establishing civil authority in the State, suggested a method of
avoiding them: “The people of Louisiana who wish protection to person
and property,” he wrote, “have but to reach forth their hands and take
it. Let them in good faith reinaugurate the national authority, and set
up a State government conforming thereto under the Constitution. They
know how to do it, and can have the protection of the army while doing
it. The army will be withdrawn so soon as such State government can
dispense with its presence; and the people of the State can then, upon
the old constitutional terms, govern themselves to their own
liking.”[56] If, however, Union men exerted themselves no further than
criticism of the Federal Government, it was more than intimated that
there were to be expected greater injuries than military necessity had
yet inflicted.
The pressure of events appears even then to have been forcing the
President in the direction of emancipation. To August Belmont, of New
York, who enclosed the complaints of a New Orleans correspondent, Mr.
Lincoln, July 31, 1862, repeated in substance what had already been
written to Mr. Bullett, and added: “Those enemies must understand that
they cannot experiment for ten years trying to destroy the government,
and if they fail still come back into the Union unhurt. If they expect
in any contingency to ever have the Union as it was, I join with the
writer [Mr. Belmont’s correspondent] in saying, ‘Now is the time.’”[57]
The appointment in August, 1862, of General George F. Shepley as
military governor may be regarded as the first act in the restoration of
a loyal government for Louisiana. His selection, though probably
intended as a private commendation of the judgment of General Butler,
who had already designated him as Mayor of New Orleans, was never
considered by that officer adequate atonement for the public censure
implied in his removal, December, 1862, from command of the Department
of the Gulf.
Upon the Federal occupation of New Orleans and adjacent territory all
functions of the disloyal government therein immediately ceased. As
controversies were constantly arising the establishment of courts had
become a necessity. At first these questions were for the most part
adjudicated by General Butler himself, but the pressure of military and
other affairs compelled him soon to refer their settlement to civilians
or to army officers especially chosen for the purpose. This uncertain
system of justice, though immeasurably better than none, led to the
institution of courts each of which was known by the name of the officer
holding it. Accused persons were brought to trial, and judgments
executed by soldiers detailed for such duty. No formal record of
proceedings in these tribunals appears to have been kept, though
memoranda of judgments rendered were, no doubt, made by an officer who
came eventually to be designated as clerk.
For the decision of questions relating exclusively to the force under
his command General Butler some time in June, 1862, organized a tribunal
known as the Provost Court of the Army of the United States, over which
Major Joseph M. Bell presided. Questions in no way connected with the
military, especially matters of police and the punishment of crimes,
were often submitted for its determination. Aggrieved persons, without
reflecting upon the consequence of their acts, naturally appealed for
redress to the holder of power. Thus the authority of this institution
silently extended, and by the autumn of 1862 it exercised unquestioned
jurisdiction over all criminal cases arising in the city of New
Orleans.[58] In the absence of courts for adjudicating civil questions
they, too, were referred to its consideration. All functions of
government having been suspended by the capture of the city, it became
the duty of the Federal commander, and his right by the laws of war, to
provide, among other things, for the administration of justice.
One of the early acts of General Shepley after his appointment as
Military Governor was to establish a system of courts for the State.
Most of the former officials having fled after the surrender, he was
compelled practically to create new tribunals, and this task he greatly
simplified by reviving those institutions of justice with which the
people of Louisiana were already familiar. John S. Whittaker was
accordingly appointed Judge of the Second District Court of the parish
of Orleans. Besides possessing in civil matters the ordinary powers of a
local court the old tribunal of that name had been a court of probates
and successions. The new exercised all the powers of the old court. It
should be remembered, however, that the latter derived its authority
from the laws of Louisiana, while the former owed its existence to the
war powers of the Federal Executive. Its jurisdiction extended to civil
cases generally where the defendant resided in the parish of Orleans or
was a non-resident of the State.[59]
Judge Hiestand was appointed to the bench of the Fourth District Court
of the parish of Orleans. Besides possessing the general authority of
other district courts in that parish it entertained appeals from
justices’ courts; indeed, these constituted a large part of its
business.[60]
The Sixth District Court of the parish of Orleans, revived soon after
the capture of the city, is, because of the incumbent of that bench,
Judge Rufus K. Howell, of greater interest than either of the preceding.
Under a commission received from the State of Louisiana before its
attempted secession he continued to preside over that tribunal while the
disunion party ruled New Orleans, and performed his functions up to the
very hour of its surrender to the Federal authorities. Having early
taken the oath of allegiance to the national Government he was permitted
to resume his functions.[61] Like the tribunals mentioned, this court
retained and exercised all the powers that it possessed as originally
constituted.
These courts, instituted during September and October, 1862, entered
upon the discharge of their duties about the 1st of November following.
They were the only tribunals of civil jurisdiction in Louisiana, and
that jurisdiction was limited, as against defendants resident of the
State, to citizens of the parish of Orleans. As to inhabitants beyond
the limits of that parish there was no court in which they could be
sued. Though the Federal forces held several counties in this condition,
their tenure fluctuated with the fortunes of war. A court was therefore
needed whose jurisdiction would expand with the advance, and contract
with the retreat, of the Union armies. The Provost Court was not deemed
adequate, and indeed was never designed to meet such contingencies. To
supply this deficiency a tribunal of very extensive powers, designated
as “a court of record for the State of Louisiana,” was constituted by
Executive order on October 20. Of this flexible institution Charles A.
Peabody, of New York, a friend of Secretary Seward, was made provisional
judge. Besides being empowered to select a prosecuting attorney, a
marshal and a clerk, and to make rules for the exercise of his
jurisdiction, he was authorized “to hear, try and determine all causes,
civil and criminal, including causes in law, equity, revenue and
admiralty, and particularly all such powers and jurisdiction as belong
to the District and Circuit Courts of the United States, conforming his
proceedings, so far as possible, to the course of proceedings and
practice which has been customary in the Courts of the United States and
Louisiana—his judgment to be final and conclusive.” These officers were
to be paid out of the contingent fund of the War Department, and a copy
of the Executive order, certified by the Secretary of War, was “held to
be a sufficient commission” for the Judge.
This institution, made up as to its _personnel_ in the North, was sent
from New York with the great expedition of General Banks constituted and
organized for immediate business to Louisiana. Though Judge Peabody,
accompanied by Augustus de B. Hughes, Isaac Edward Clarke and George D.
Lamont, who had been chosen, respectively, clerk, marshal and
prosecuting attorney, arrived in New Orleans December 15, 1862, the
opening of court was delayed till the 29th of that month by a change of
administration in that Department.[62]
In addition to the tribunals described many other courts were
established about this time; of these the Supreme Court of Louisiana is
the only one which appears to require especial mention. In former times
under the State judicial system appeals had lain to this institution,
and it was accordingly held that decisions of the courts now created
were subject to its revision. In this manner many of their judgments
were stayed and in suspense, so that the new district courts were of
little practical benefit. The necessity of a tribunal to remedy this
deficiency and adjudicate the accumulated cases of former years soon
became apparent, and in April, 1863, Mr. Peabody was appointed Chief
Justice of the State Supreme Court; associated with him on this bench
were judges chosen from among the people of Louisiana.
Nearly a week before his appointment of Judge Peabody, Mr. Lincoln, by
the hand of Hon. John E. Bouligny, who had not left his seat in the
House of Representatives when Southern delegations withdrew from
Congress, sent to General Butler, Governor Shepley and other Federal
officers having authority under the United States in Louisiana a
communication requesting each of them to assist Mr. Bouligny in his
effort to secure “peace again upon the old terms under the Constitution
of the United States.”[63] This desirable end was to be attained by the
election of “members to the Congress of the United States particularly,
and perhaps a legislature, State officers, and United States senators
friendly to their object.” Federal officers were instructed to give the
people a chance to express their wishes at these elections. “Follow
forms of law,” wrote the President, “as far as convenient, but at all
events get the expression of the largest number of the people possible.
All see how such action will connect with and affect the proclamation of
September 22. Of course the men elected should be gentlemen of
character, willing to swear support to the Constitution, as of old, and
known to be above reasonable suspicion of duplicity.”[64]
Loyal leaders, believing that Northern men holding office under the
General Government in Louisiana would be set up as candidates,
communicated their fears to the President, who sent to Governor Shepley
a fortnight before the election a letter of which the essential portion
is as follows:
We do not particularly need members of Congress from there to enable
us to get along with legislation here. What we do want is the
conclusive evidence that respectable citizens of Louisiana are
willing to be members of Congress and to swear support to the
Constitution and that other respectable citizens there are willing
to vote for them and send them. To send a parcel of Northern men
here as representatives, elected, as would be understood (and
perhaps really so), at the point of the bayonet, would be disgusting
and outrageous; and were I a member of Congress here, I would vote
against admitting any such man to a seat.[65]
The note of sincerity is unmistakable throughout, and in those
Representatives and Senators opposed to Executive policy the concluding
sentences especially must have excited strange emotions when they
re-read in after years their impassioned attacks in Congress upon that
dark spirit who, it was gravely alleged, labored with might unquestioned
to subordinate the Legislative branch of Government.
The Union associations referred to appointed committees who waited upon
General Shepley and demanded an election. This he hesitated to call
until considerable pressure had first been exerted. The sentiments of
the President concurring with the local feeling in New Orleans, Shepley
finally yielded, and on November 14, 1862, issued a proclamation for an
election to be held December 3d following. This election, in the
language of his proclamation, was ordered “for the purpose of securing
to the loyal electors” of both the First and Second Congressional
Districts “their appropriate and lawful representation in the House of
Representatives of the United States of America, and of enabling them to
avail themselves of the benefits secured by the proclamation of the
President of the United States to the people of any State, or part of a
State, who shall on the first day of January next be in good faith
represented in the Congress of the United States, by members chosen
thereto at elections wherein a majority of the qualified voters of such
State have participated.”[66]
In addition to the qualifications prescribed by the laws of Louisiana,
General Shepley required each elector to take an oath of allegiance to
the United States, and from among the old and respected citizens of the
State appointed sheriffs and commissioners of election, who performed
their duties to the entire satisfaction of both candidates and voters.
The army, for reasons given above, refrained from all manner of
interference, and no Federal office-holder was a nominee.
For the first time in many years, it was admitted, every qualified
elector might freely cast his ballot without fear of intimidation or
violence. In a total of 2,643 votes Benjamin F. Flanders was chosen,
with little opposition, for the First, and Michael Hahn, by a safe
majority, for the Second Congressional District. A larger vote was
actually cast for Flanders than had been received by his predecessor,
and in both districts 7,760 citizens, or about half the usual number,
appeared at the polls. When it is remembered that four thousand soldiers
who enlisted in Butler’s army from this part of the State did not
participate in the contest, that many citizens from this section were
serving in the Confederate army and that not a few Union men were exiles
in the North or in Europe the vote in this election was by no means
light.
With credentials signed by Governor Shepley, Messrs. Hahn and Flanders
appeared in Washington as claimants for seats in Congress. After a
thorough investigation of the election and several ingenious arguments
in opposition both were admitted, February 17, 1863, though not without
considerable misgiving, as Representatives for the remainder of the
term, which expired March 3 following. For their exclusion the
opposition relied mainly upon these grounds:
_First._ The election, it was asserted, was brought about by a threat of
interference with slave property if the State was not represented in
Congress by January 1, 1863; this was a measure of coercion, and the
compliance of citizens in appearing at the polls was ascribed to selfish
motives rather than to loyal and patriotic sentiments.
_Second._ The existence of any vacancy in a constitutional sense was at
least doubtful; and even if vacancies existed in these districts the
authority of a military governor to call an election was denied.
_Third._ It was objected that Governor Shepley had dispensed with the
registry required by law and had empowered commissioners of election to
decide upon the qualifications of voters; finally, by requiring an oath
of allegiance to the United States, he had imposed upon electors a test
unknown to the laws of Louisiana.[67]
While the cases of Messrs. Hahn and Flanders were pending the edict of
freedom had gone forth, for the President, as announced in his
preliminary proclamation of September 22, had declared, January 1, 1863,
“as a fit and necessary war measure,” that “all persons held as slaves
within said designated States and parts of States, are and henceforward
shall be free.”[68] Louisiana was named as one of the States in
rebellion. From the operation of this measure, however, the city of New
Orleans and thirteen parishes of the State were excepted.
The admission, February 17, of Hahn and Flanders gave new life to the
political reorganization of the State.[69] But with this revival of
interest there was discovered among the supporters of the Federal
Government a difference of opinion as to the best course to be pursued
in the circumstances. This division of sentiment arose concerning the
wisdom of retaining slavery in those parishes not included in the
President’s proclamation. The Union associations, each appointing five
delegates, organized what they termed a Free State General Committee
with Thomas J. Durant as president. This body, holding anti-slavery
views and assuming that rebellion had destroyed the fundamental law,
took measures to elect delegates to a general convention for the purpose
of framing a new constitution prohibiting slavery. Their plan was
approved by General Shepley, who, June 12, 1863, appointed Mr. Durant
Attorney-General for the State, with power to act as commissioner of
registration.[70] He was ordered on the same day to make an enrollment
of all free white male citizens of the United States having resided six
months in the State and one month in the parish, who should each take
the oath of allegiance and register “as a voter freely and voluntarily
for the purpose of organizing a State government in Louisiana, loyal to
the Government of the United States.”[71]
The conservative element, though less active, was by no means
indifferent to these measures, and sent to Washington a committee of
planters to consult the President. They represented in a communication
to him that they had “been delegated to seek of the General Government a
full recognition of all the rights of the State as they existed previous
to the passage of an act of secession, upon the principle of the
existence of the State constitution unimpaired, and no legal act having
transpired that could in any way deprive them of the advantages
conferred by that constitution.” They further requested him to direct
the Military Governor to order an election on the first Monday of
November following for all State and Federal officers.[72] To this
committee, composed of E. E. Malhiot, Bradish Johnson and Thomas
Cottman, Mr. Lincoln, under date of June 19, 1863, replied “that a
respectable portion of the Louisiana people desired to amend their State
constitution, and contemplated holding a State convention for that
object. This fact alone, as it seems to me, is a sufficient reason why
the General Government should not give the committal you seek to the
existing State constitution. I may add that while I do not perceive how
such committal could facilitate our military operations in Louisiana, I
really apprehend it might be so used as to embarrass them.”[73]
It is evident, when we recall the letter of July 26, 1862, to Reverdy
Johnson, that the President, then only contemplating emancipation, had,
since his proclamation had gone forth, taken much more advanced
ground.[74] The army was still his main reliance, and the wisdom of
restoring a loyal government as well as the method of that restoration
was regarded favorably or otherwise as it appeared to facilitate or
embarrass military operations.
Relative to an election in November he said, “There is abundant time
without any order or proclamation from me just now.” Though their
request was courteously denied, he assured the committee that the people
of Louisiana should not lack an opportunity for a fair election for both
Federal and State officers by want of anything within his power to give
them.[75]
The political reorganization of the State was at this point interrupted
by the absence at Port Hudson of General N. P. Banks, then in command of
the Department of the Gulf. So energetic and successful was the
Confederate General Taylor that by July 10, when he received
intelligence of the fall of Port Hudson and the surrender of Vicksburg,
his mounted scouts had been pushed to within sixteen miles of New
Orleans.[76] The surrender in these strongholds of more than 40,000 men
was a crushing blow to the Richmond Government; enough troops were
disengaged by these victories to overwhelm the enemy that menaced New
Orleans, and General Taylor hurriedly concentrated his army in the
valley of the Red River to observe the movements of the Federal
commander. The Union picket line marked at this time the bounds of
Governor Shepley’s civil jurisdiction; indeed, it was not greatly
extended until the surrender of General E. Kirby Smith late in May,
1865, after the engagement at Brazos. Eastern Louisiana, with Alabama
and Mississippi, had passed a few weeks earlier under Federal control.
The great numbers withdrawn from production in the South combined with a
rigorous enforcement of the blockade had occasioned a cotton famine in
the markets of the world. To relieve this condition an outlet was sought
for the abundant crops of the Red River country; and this fact was
probably, not without considerable influence, in determining the course
of the expedition into Texas, which was intended to accomplish a very
different though scarcely less important purpose.
Though the vigilance of Mr. Adams, United States Minister to England,
was rewarded by the abandonment in that country of any further attempt
to build cruisers of the Alabama type, the Confederate naval agent by no
means despaired of dealing still severer blows to the commerce of the
North, and, attracted by promises which appear to have been authorized
by the ruler of France, changed his field of activity from Liverpool to
Bordeaux, where a ship-builder was engaged to construct two formidable
rams. With the attempts to get these under the Confederate flag this
essay is not concerned.[77] French interests in Mexico appeared at that
time to require the cultivation of friendly relations with what some
European States believed was destined to become a new power among the
nations of the world; hence Napoleon’s encouragement to the Confederate
representatives abroad. This situation was so seriously regarded by the
Government at Washington that even at considerable sacrifice it was
determined to plant the Union flag somewhere in Texas. To effect this
object General Banks had considered and submitted to the War Department
plans of his own; these, however, appear to have been reluctantly
abandoned because of repeated instructions from General Halleck, and the
movement toward Shreveport in the spring and early summer of 1864 was
begun. From the protracted and envenomed controversy to which it gave
rise among the officers on both sides its disastrous ending is familiar
to all.[78]
While this joint land and naval expedition was yet in contemplation Mr.
Lincoln found time to inform the Federal commander of his opinions
respecting the establishment of a civil government in Louisiana. In his
letter of August 5, 1863, to General Banks he wrote:
While I very well know what I would be glad for Louisiana to do, it
is quite a different thing for me to assume direction of the matter.
I would be glad for her to make a new constitution recognizing the
emancipation proclamation, and adopting emancipation in those parts
of the State to which the proclamation does not apply. And while she
is at it, I think it would not be objectionable for her to adopt
some practical system by which the two races could gradually live
themselves out of the old relation to each other, and both come out
better prepared for the new. Education for young blacks should be
included in the plan. After all, the power or element of “contract”
may be sufficient for this probationary period; and, by its
simplicity and flexibility, may be the better.
As an anti-slavery man, I have a motive to desire emancipation which
pro-slavery men do not have; but even they have strong enough reason
to thus place themselves again under the shield of the Union; and to
thus perpetually hedge against the recurrence of the scenes through
which we are now passing.
He expressed his approval of the registry which he supposed Mr. Durant
was making with a view to an election for a constitutional convention,
the work of which, he hoped, would reach Washington by the meeting of
Congress in December. Before concluding this letter he added: “For my
own part, I think I shall not, in any event, retract the emancipation
proclamation; nor, as executive, ever return to slavery any person who
is freed by the terms of that proclamation, or by any of the acts of
Congress.”[79]
He again invites attention to the fact that if Louisiana should send
members to Congress their admission would depend upon the respective
Houses and not to any extent upon the wishes of the Executive.
Copies of this communication he intended to send to Hahn, Flanders and
Durant. Three months later, when the gentleman last named informed him
that nothing had yet been done toward the enrollment, Mr. Lincoln wrote
immediately to General Banks a letter which at once reveals both the
extent of his interest in this subject and his extreme disappointment on
learning that his wishes had been but little regarded. Flanders, then in
Washington, confirmed the account of Durant. “This disappoints me
bitterly,” said the letter of November 5, 1863, and though the President
did not blame either General Banks or the Louisiana leaders for this
apparent neglect he urged them “to lose no more time.” “I wish him
[General Shepley], ...” continued the letter, “without waiting for more
territory, to go to work and give me a tangible nucleus which the
remainder of the State may rally around as fast as it can, and which I
can at once recognize and sustain as the true State government. And in
that work I wish you and all under your command to give them a hearty
sympathy and support.
“The instruction to Governor Shepley bases the movement (and rightfully,
too) upon the loyal element. Time is important. There is danger, even
now, that the adverse element seeks insidiously to preoccupy the ground.
If a few professedly loyal men shall draw the disloyal about them, and
colorably set up a State government, repudiating the Emancipation
Proclamation and reëstablishing slavery, I cannot recognize or sustain
their work. I should fall powerless in the attempt. This Government in
such an attitude would be a house divided against itself.
“I have said, and say again, that if a new State government, acting in
harmony with this government, and consistently with general freedom,
shall think best to adopt a reasonable temporary arrangement in relation
to the landless and homeless freed people, I do not object; but my word
is out to be for and not against them on any question of their permanent
freedom. I do not insist upon such temporary arrangement, but only say
such would not be objectionable to me.”[80]
It should be remembered that Thomas J. Durant, who was authorized to
make the enrollment as well as to appoint “registers” to assist him, was
spokesman of the wealthy and influential class of planters, or the
conservative element whose interests opposed any disturbance of existing
conditions. He appears to have drawn for the President a somewhat gloomy
picture of the political situation in Louisiana, and finally to have
protested against the government organized by the adverse party. The
outlook there, however, was not so discouraging as represented; for as
early as October 9 Governor Shepley had renewed his order for the
registration, modifying the former one so far as to include “all loyal
citizens.”
Interest was somewhat quickened by the announcement of certain
conservative leaders of an intention to hold a voluntary election in
conformity with the old constitution and laws of the State. On October
27, 1863, an address signed by the president and vice-president of the
Central Executive Committee was published in the papers of New Orleans.
This appeal, directed to the loyal citizens of Louisiana, begins:
The want of civil government in our State can, by a proper effort on
your part, soon be supplied, under laws and a constitution formed
and adopted by yourselves in a time of profound peace. It is made
your duty, as well as your right, to meet at the usual places, and
cast your votes for State and parish officers, members of Congress,
and of the State Legislature.
* * * * *
The day, as fixed by our laws, is Monday, the 2d day of November
next, 1863. There is nothing [proceeds the address] to prevent your
meeting on the day fixed by law, and selecting your agents to carry
on the affairs of government in our own State. The military will not
interfere with you in the exercise of your civil rights and duties,
and we think we can assure you that your action in this respect will
meet the approval of the National Government.
The failure of those citizens addressed to exercise their rights, it was
asserted, would subject “the country” to the danger of being thrown as
“vacated” territory into the hands of Congress.[81]
The Free State Committee having been invited to coöperate, a
correspondence ensued between the rival organizations; but, on the
ground that this movement was both illegal and unjust, the Free State
men declined to participate in the election. In their reply the latter
assert that “There is no law in existence, as stated by you [The
Executive Central Committee], directing elections to be held on the
first Monday of November.
“The constitution of 1852, as amended by the convention of 1861, was
overthrown and destroyed by the rebellion of the people of Louisiana,
and the subsequent conquest by the arms of the United States does not
restore your political institutions.”[82]
The reply then proceeds to discuss the injustice of the movement, and
upon this subject its reasoning is entitled to more respect. As to the
status of the constitution of 1852, it is not easy to comprehend how the
secession convention, a body universally regarded as revolutionary,
could amend, in the manner attempted, the fundamental law, seeing that
this revolution was not yet crowned with success.
Though no general election was held in response to this address, voting
took place in two parishes, and certain persons were chosen as
Representatives in Congress. Before giving an account of this election
of November 2, 1863, it may be proper to notice a petition submitted by
the free colored people of New Orleans to Governor Shepley praying to be
registered as voters so that they could “assist in establishing in the
new Convention a Civil Government” for their “beloved State of
Louisiana.” This address, prepared at a meeting on November 5, and not
without ability, recites in appropriate language the services rendered
by free colored men to both the Nation and the State. It is sufficient
to observe here that their prayer was not granted. The paper itself will
be considered in discussing the successive steps which led to the
complete enfranchisement of the race.[83]
The preceding chapter has noticed President Lincoln’s Amnesty
Proclamation of December 8 as well as that part of the accompanying
message to Congress discussing his plan for restoring Union governments
in the insurgent States. The House had not completed its organization
for the Thirty-eighth Congress when Thaddeus Stevens, a Representative
from Pennsylvania, either from curiosity or an anxiety to oppose, as he
conceived, the policy of the President, inquired what names had been
omitted in the call of members. At a later stage of its first meeting,
December 7, 1863, he again referred to this subject by asking to have
read the credentials of persons claiming to be Representatives “from the
so-called State of Louisiana.” The acting clerk facetiously promised
compliance, and read a certificate signed by Mr. John Leonard Riddell
naming A. P. Field, Thomas Cottman and Joshua Baker as persons elected
to represent respectively the First, Second and Fifth Congressional
Districts of the State.[84]
On a resolution “That A. P. Field is not entitled to a seat in this
House from the State of Louisiana,” reported January 29, 1864, from the
Committee of Elections, his right to admission was fully discussed.
Under the apportionment of 1850 that State sent four, and by the census
of 1860 became entitled to five, Representatives. By an act of Congress
approved July 14, 1862, each State entitled to more than one member in
the lower House was to be divided into as many districts as it had been
allotted Representatives.
But, said Chairman Dawes, as Louisiana had never been so divided no
person in that State had been chosen according to Federal law. The
election under which Mr. Field claimed a seat occurred in the old First
Congressional District, which, with a great portion of the city of New
Orleans, included two adjacent parishes, Placquemines and St. Bernard.
On November 1, General Shepley issued a military order forbidding the
election, and none was held in New Orleans. In the two outlying
parishes, however, under the auspices of a citizens’ committee, to which
returns were made, a few voters appeared at the polls. In the parish of
St. Bernard, the only locality in which the House had any proof that
electors participated, Mr. Field received one hundred and fifty-six
votes, and though no evidence in support of his statement had been
offered, about the same number, he alleged, had been cast for him in
Placquemines.
The question was, proceeded Mr. Dawes, whether a gentleman with this
constituency could be in any sense considered as having been elected.
There were in his district over 10,000 qualified voters, and of these
the claimant received the support of only one hundred and fifty-six;
hence nearly ten thousand electors expressed no opinion, armed
interference having prevented 9,844 of them from indicating a
preference. There was no evidence that this majority acquiesced in what
was done by one hundred and fifty-six men in a corner of St. Bernard
parish where an election was permitted. If no other objection existed,
the State had not been districted as required by the Act of July, 1862;
this consideration of itself appeared to the Committee a reason
sufficient for his exclusion. Further, his certificate was signed by one
John Leonard Riddell, himself chosen Governor at the same time and in
the same parishes. His term, according to the laws of Louisiana, did not
commence till January 1, 1864, and it was not easy to comprehend how he
came to regard himself as Executive of the State on November 20, 1863,
when he signed the certificate presented by the claimant. Mr. Riddell,
indeed, had not then been inaugurated.
Had not Congress failed to divide the State, the suppression of this
election would have been without justification and have deserved the
condemnation of the House. It, however, did not conform to the laws of
Louisiana, for the votes were not cast nor were they counted or
canvassed as prescribed thereby. This, in substance, was the argument of
Mr. Dawes.
By other members attention was invited to the fact that under the same
laws and conditions an election had been held in Louisiana a year
before, and in consequence two Representatives admitted. To this
observation Mr. Stevens replied that Hahn and Flanders, the members
referred to, had been seated by the power of the House without, as he
then supposed, any law or right. Henry Winter Davis alone among all who
spoke on the question approved the action of the Military Governor on
the ground that there was no legal right to hold an election, and the
attempt of any number of persons to do so was an usurpation of sovereign
authority which was properly prevented. Other Representatives, however,
strongly condemned this act of Governor Shepley and at least one desired
the House to express as an amendment to the resolution its disapproval
of his conduct. Though not the question in debate, there could be no
mistaking upon this point the sentiments of a majority of the members.
Mr. Field, permitted to address the House, observed that it was the
fault of the General Government that Union men in Louisiana had not been
aided by the previous administration. If they had been, the blood of
Illinois and Massachusetts patriots would not have sprinkled the soil of
his State.
To show that some sort of government existed there he caused the clerk
to read a list of one hundred and twenty-five officers acting in those
parishes included within Federal military lines, and added that though
New Orleans since its capture paid annually in taxes, collected through
Governor Shepley, two and a half million dollars, besides a considerable
sum in internal revenue, her people were represented neither in the
local nor the national Government.
The constitution of Louisiana, he said, required that qualified electors
should be white males who had attained the age of twenty-one years, and
been residents of the State for twelve months immediately preceding the
election. The provision was so modified by Governor Shepley that persons
of this description were allowed to vote after a residence of six
months. Mr. Field did not know whence was derived the authority to amend
constitutions.
To secure his coöperation in establishing a loyal government Union men
met as early as September 19 in convention at New Orleans, and appointed
a committee of nine to present an address to the Military Governor
inviting his assistance. He declined, however, after a lengthy interview
to order an election for Representatives until the State had first been
divided. In fact, until instructions which he had requested, were
received from Washington he refused to order any election whatever,
though he volunteered to forward to Mr. Lincoln any communication which
they desired to address him on that subject. Besides its correspondence
with Governor Shepley, the New Orleans convention on September 21 had
sent a letter to General Banks, the Department commander, to secure if
possible his approval of their movement.
Notice, dated October 20, was given that an election would be held,
November 2, at the usual places in the parish of St. Bernard, and the
State and Federal offices to be filled, as well as the precise places at
which voters could cast their ballots, were mentioned. Since the
military authorities had refused to assist them, and had then issued no
order against an election, loyal men thought it not improper to express
their opinions at the polls. As the Free State people considered
Louisiana out of the Union they declined to participate, and though
General Banks in obedience to instructions from the President had
subsequently ordered an election they maintained the same attitude. The
claimant’s party did not oppose this order; for if unable to restore
their State in the manner most acceptable they were willing to coöperate
in any method likely to accomplish that object.
Precisely what number of voters would be called a constituency Mr. Field
had not been informed. In the portion of his Congressional District
included in St. Bernard and Placquemines parishes there were only 2,400
electors, and the President’s plan required only one tenth of the number
of votes cast in 1860. Though the election of November 2 preceded the
Executive proclamation, that fact should not make it void. The electors
in New Orleans were not free to express a choice, and even if it had
been otherwise the vote in the First District must have been greatly
diminished since 1860, for he was assured by two paymasters that 7,000
men had been recruited there for the Union army.
Some members admitted that the national Government had not given
sufficient protection to Union men in Louisiana, and therefore should
not now take advantage of that neglect to also deprive them of
representation in Congress. These believed that if Mr. Field had
received a majority of the votes in his district any informality in the
election should be overlooked, for the right to representation in
Congress grows out of the Constitution, and regulations governing such
elections are matters of mere convenience. The fact that no State
organization existed there did not create a legal impediment, and it was
no objection that Louisiana had not been redistricted, for the
additional member was not imposed as a burden but as a right which she
was free to exercise or not; besides, the greater representation
includes the less.
Notwithstanding these considerations, and strong, though not universal,
testimony to the claimant’s loyalty, he was denied admission, February
9, 1864, by a vote of 85 to 48.[85] His case, however, was not exactly
similar to that of Messrs. Hahn and Flanders, as stated by one
Representative, for they had received, in the circumstances, a
comparatively large vote.
To this end came the movement of the planters designed primarily to
counteract that inaugurated by the Free State Committee, which also, as
we shall see, was soon at variance with the military authorities.
Important changes had occurred in the shifting politics of his State
before the House had taken final action in the case of Mr. Field; these
will be briefly related.
Military necessity had led the President to issue, December 8, 1863, his
Proclamation of Amnesty and Reconstruction proposing, though not rigidly
insisting upon, a plan for reinaugurating State governments wherever
there existed such a loyal nucleus as could effectively assist in
overthrowing the rebellion. In discussing the affairs of Tennessee that
plan has been quoted at such length as to require no further mention in
this place.[86]
General Banks on January 8, 1864, announced his intention of ordering an
election of State officers. He was urged at this point by the Free State
Committee to allow their election to go on, but he refused to yield even
under pressure of an immense public meeting favorable to their
object.[87] Without his coöperation their plan was doomed to failure,
and when entreaties did not avail to move him they promptly inveighed
against his methods and his motives in the columns of _The National
Intelligencer_ at Washington. In a letter dated New Orleans, January 9,
1864, a correspondent writes:
President Lincoln has started a Missouri case in Louisiana, and has
made Banks our master; and Banks is another Schofield, only worse
than he. Our mass meeting last evening was a complete success; but
its object will be defeated by Banks, who, under orders direct from
the President, declares his purpose to order an election for a
convention; thus playing into the hands of Cottman, Riddle, and
Fields, and their crew. The Union men—the true Union men—are
thunderstruck by the course of the President in this matter.
We were not informed of the President’s orders to General Banks
until the hour of the meeting last night, and the meeting was not
informed at all. General Shepley, who is generally liked, and who
has done all he could to promote the free State cause, and to
organize a free State government, will resign, and the election
ordered by Banks will be purely at military dictation, and will be
so regarded.
The correspondent does not know the secret springs of all these acts of
the President, but thinks he has probably been deceived by base and
interested men. “Banks,” he believes, “has the unchanged confidence of
Mr. Lincoln.” The writer concludes by asking whether it is not possible
to get the President to countermand his orders to Banks immediately,
“and let the people manage matters as they have begun to do?”[88] To
prove that no line of policy would be acceptable to the Free State
Committee Mr. Field, in his remarks before the House, read in full the
communication from which these excerpts are taken.
To comprehend clearly the nature of the controversy which so suddenly
arose between the Free State General Committee and the Federal commander
in Louisiana it may be necessary to explain with some detail the precise
attitude of that organization relative to the question at issue between
the adverse parties. In discussing the respective merits of the State
constitutions of 1852 and 1861 the organ of the Free State men says:
The question is altogether immaterial; for, in the conflict of arms
incident to this rebellion, the predominant ideas of the good people
of Louisiana have far preceded either constitution; and to
reorganize now the State on the slave basis, which both
constitutions and the laws passed under them recognized, has become
an utter impossibility. Free soil and free speech have grown up into
absolute necessities, directly resulting from the war, which has
converted into dust and ashes all the constitutions which Louisiana
has ever made, embodying the ideas of property in our fellow-man,
and all the baneful results of this system of African slavery. The
present war is nothing but the conflict of the ideas of slavery and
liberty.... We cannot have peace until public opinion is brought
quite up to this point. We cannot reorganize the civil government of
our city, and still less that of our State, and get rid of the
fearful incubus of martial law now pressing down our energies by its
arbitrary influence, unless we believe, give utterance to and
establish the fundamental principle of our national government: “all
men are created free and equal.” We know of no better way to effect
this than by calling a convention as soon as possible, to declare
the simple fact that Louisiana now is and will forever be a free
State.[89]
The party favoring this method insisted that in August, 1863, when
General Shepley was in Washington, their plan in all its parts was
adopted in a Cabinet meeting, and that a special order issued from the
War Department directing the Military Governor to carry it into
execution. The movement for reorganizing the State would thus be placed
under control of the steadfast opponents of slavery. They further
claimed that Mr. Lincoln then preferred the calling of a convention to
an election of State officers under the old constitution. His letter of
August 5, 1863, to General Banks certainly leaves no doubt as to his
sentiments at that time, for he expressed his approval of the enrollment
being taken by Durant with a view to an election for a constitutional
convention, the mature work of which, he thought, should reach
Washington by the meeting of Congress. The impossibility of so
expediting registration outside of New Orleans as to be ready for an
election at that early date was explained to the President by the Free
State Committee.
Mr. B. F. Flanders returning from Washington in October, 1863, reported
the President as saying, in reply to an objection that enough territory
and population were not under protection of the Union army to justify an
election, that so great was the necessity for immediate action that he
would recognize and sustain a State government organized by any part of
the population of which the National forces then had control, and that
he wished Flanders on his return to Louisiana to say so.[90]
The registration under Governor Shepley, though frequently interrupted,
had proceeded, and the Free State Committee, to insure the success of
their object, conferred with him for the purpose of holding, about
January 25, 1864, an election for delegates to a State convention which,
as already observed, intended to frame a new constitution abolishing
slavery everywhere throughout the State. The announcement, then, on
January 8, 1864, by General Banks of his intention to order an election
of State officers under the old constitution was regarded by them as a
decision for their adversaries. Their objections to the proclamation
itself will be noticed in the proper place. It provided not only for an
election of State officers on February 22 following, but also for the
choice of delegates to a convention to be held in April for a revision
of the constitution. The paramount objection of the Free State men was
that the election of State officers would, under the course of General
Banks, precede that for delegates to the convention, the point at which
they desired to begin the work of reëstablishing a civil government for
the State.
To Thomas Cottman, who accompanied Mr. Field to Washington claiming a
seat in Congress as Representative from the Second Louisiana District,
Mr. Lincoln, on December 15, wrote:
You were so kind as to say this morning that you desire to return to
Louisiana, and to be guided by my wishes, to some extent, in the
part you may take in bringing that State to resume her rightful
relation to the General Government.
My wishes are in a general way expressed, as well as I can express
them, in the proclamation issued on the eighth of the present month,
and in that part of the annual message which relates to that
proclamation. It there appears that I deem the sustaining of the
Emancipation Proclamation, where it applies, as indispensable; and I
add here that I would esteem it fortunate if the people of Louisiana
should themselves place the remainder of the State upon the same
footing.[91]
Though this letter expressed as one of Mr. Lincoln’s strongest wishes a
hope that all Union men in Louisiana would “eschew cliquism,” he was
destined to be disappointed, for at this very time letters from General
Banks, dated December 6 and 16, informed him that Governor Shepley, Mr.
Durant and others had given him to understand that they were charged
exclusively with the work of reconstruction in Louisiana and hence he
had not felt authorized to interfere. Other officers had set up claims
to jurisdiction conflicting and interfering with his own powers of
military administration. Annoyed that a misunderstanding was delaying
work which he had been urging for a year, the President, on the 24th of
December, wrote General Banks as follows:
I have all the while intended you to be master, as well in regard to
reorganizing a State government for Louisiana, as in regard to the
military matters of the department; and hence my letters on
reconstruction have nearly, if not quite, all been addressed to you.
My error has been that it did not occur to me that Governor Shepley
or any one else would set up a claim to act independently of you;
and hence I said nothing expressly upon the point.
Language has not been guarded at a point where no danger was thought
of. I now tell you that in every dispute with whomsoever, you are
master.
Governor Shepley was appointed to assist the commander of the
department, and not to thwart him or act independently of him.
Instructions have been given directly to him, merely to spare you
detail labor, and not to supersede your authority. This, in its
liability to be misconstrued, it now seems was an error in us. But
it is past. I now distinctly tell you that you are master of all,
and that I wish you to take the case as you find it, and give us a
free State reorganization of Louisiana in the shortest possible
time. What I say here is to have a reasonable construction. I do not
mean that you are to withdraw from Texas, or abandon any other
military measure which you may deem important. Nor do I mean that
you are to throw away available work already done for
reconstruction; nor that war is to be made upon Governor Shepley, or
upon any one else, unless it be found that they will not coöperate
with you, in which case, and in all cases, you are master while you
remain in command of the department.[92]
This letter making General Banks “master” of the situation in Louisiana
the President concluded by thanking him for his successful and valuable
operations in Texas. But before receiving this extensive authority and
the undoubted assurance of Mr. Lincoln’s confidence the commander, on
December 30, submitted to the President a plan of reconstruction based
upon the Proclamation and the Message of the 8th of that month. For
evident reasons this communication deserves to be reproduced almost
entire:
I would suggest [says General Banks], as the only speedy and certain
method of accomplishing your object, that an election be ordered, of
a State government, under the constitution and laws of Louisiana,
except so much thereof as recognizes and relates to slavery, which
should be declared by the authority calling the election, and in the
order authorizing it, inoperative and void. The registration of
voters to be made in conformity with your Proclamation, and all
measures hitherto taken with reference to State organization, not
inconsistent with the Proclamation, may be made available. A
convention of the people for the revision of the constitution may be
ordered as soon as the government is organized, and the election of
members might take place on the same or a subsequent day with the
general election. The people of Louisiana will accept such a
proposition with favor. They will prefer it to any arrangement which
leaves the subject to them for an affirmative or negative vote.
Strange as this may appear, it is the fact. Of course a government
organized upon the basis of immediate and universal freedom, with
the general consent of the people, followed by the adaptation of
commercial and industrial interests to this order of things, and
supported by the army and navy, the influence of the civil officers
of the Government, and the Administration at Washington, could not
fail by any possible chance to obtain an absolute and permanent
recognition of the principle of freedom upon which it would be
based. Any other result would be impossible. The same influence
would secure with the same certainty the selection of proper men in
the election of officers.
Let me assure you that this course will be far more acceptable to
the citizens of Louisiana than the submission of the question of
slavery to the chances of an election. Their self-respect, their
_amour propre_ will be appeased if they are not required to vote for
or against it. Offer them a government without slavery and they will
gladly accept it as a necessity resulting from the war. On all other
points, sufficient guarantees of right results can be secured; but
the great question, that of immediate emancipation, will be covered
_ab initio_, by a conceded and absolute prohibition of slavery.
Upon this plan a government can be established whenever you wish—in
thirty or sixty days; a government that will be satisfactory to the
South and the North; to the South, because it relieves them from any
action in regard to an institution which cannot be restored, and
which they cannot condemn; and to the North, because it places the
interests of liberty beyond all possible accident or chance of
failure. The result is certain.[93]
Upon receiving this communication the President, who cherished no plan
of restoration to which exact conformity was indispensable, expressed,
January 13, 1864, in a letter to General Banks his gratitude for the
zeal and confidence manifested by him on the question of reinaugurating
a free State government in Louisiana. He hoped, because of the authority
contained in the letter of December 24, that the Department Commander
had already commenced work. “Whether you shall have done so or not,”
continues the letter, “please, on receiving this, proceed with all
possible despatch, using your own absolute discretion in all matters
which may not carry you away from the conditions stated in your letters
to me, nor from those of the message and proclamation of December 8.
Frame orders, and fix times and places for this and that, according to
your own judgment.”[94]
This letter repeats the idea of subordination to General Banks of all
officials in his department holding authority from the President, and
stated that the bearer of the communication, Collector Dennison, of New
Orleans, understood the views of the commander and was willing to assist
in carrying them out. Before Mr. Dennison arrived in New Orleans,
however, General Banks had already, in his proclamation of January 11,
1864, fixed a date for the election. This action was determined, said
the Department Commander, upon ample assurance “that more than a tenth
of the population desire the earliest possible restoration of Louisiana
to the Union”; hence he invited “the loyal citizens of the State
qualified to vote in public affairs ... to assemble in the election
precincts designated by law, ... on the 22d of February, 1864, to cast
their votes for the election of State officers herein named, _viz._
Governor, Lieutenant-Governor, Secretary of State, Treasurer,
Attorney-General, Superintendent of Public Instruction and Auditor of
Public Accounts—who shall, when elected, for the time being, and until
others are appointed by competent authority, constitute the civil
government of the State, under the constitution and laws of Louisiana,
except so much of said constitution and laws as recognize, regulate or
relate to slavery, which being inconsistent with the present condition
of public affairs, and plainly inapplicable to any class of persons now
existing within its limits, must be suspended, and they are therefore
and hereby declared to be inoperative and void. This proceeding is not
intended to ignore the right of property existing prior to the
rebellion, nor to preclude the claim for compensation of loyal citizens
for losses sustained by enlistment or other authorized acts of
Government.”[95]
The qualifications of voters in this election were to be determined by
the oath of allegiance prescribed by the President’s proclamation
together with the condition annexed to the elective franchise by the
constitution of Louisiana. Officers elected were to be duly installed on
the 4th of March.
So much of the registration effected under direction of Governor Shepley
and the several Union Associations as was not inconsistent with the
proclamation and other orders of the President was approved. The
proclamation further announced that arrangements would be made for the
early election of members of Congress for the State, and, that the
organic law might be made to conform to the will of the people and
harmonize with the spirit of the age, an election of delegates to a
convention for the revision of the constitution would be held on the
first Monday of April following.
This proclamation declared, among other things, that
The fundamental law of the State is martial law.... The Government
is subject to the law of necessity, and must consult the condition
of things, rather than the preferences of men, and if so be that its
purposes are just and its measures wise, it has the right to demand
that questions of personal interest and opinion shall be subordinate
to the public good. When the national existence is at stake, and the
liberties of the people in peril, faction is treason.
The methods herein proposed submit the whole question of government
directly to the people—first, by the election of executive officers,
faithful to the Union, to be followed by a loyal representation in
both Houses of Congress; and then by a convention which will confirm
the action of the people, and recognize the principles of freedom in
the organic law. This is the wish of the President.[96]
On February 13, nine days before the election, General Banks issued an
order relative to the qualifications of electors. It provided, in
addition to the declarations on that subject in his proclamation, that
Union voters expelled from their homes by the public enemy might cast
their ballots for State officers in the precincts where they temporarily
resided and that qualified electors enlisted in the army or navy could
vote in those precincts in which they might be found on election day. If
without the State, then commissioners would be appointed to receive
their ballots wherever stationed, returns to be made to General
Shepley.[97]
For governor three candidates were nominated—B. F. Flanders, a
representative of the Free State Committee; Michael Hahn, the choice of
those who approved the measures of General Banks, and J. Q. A. Fellows,
a pro-slavery conservative who favored “the Constitution and the Union
with the preservation of the rights of all inviolate.” The friends of
Hahn would deny to persons of African descent the privileges of
citizenship, whereas the supporters of Flanders generally would extend
to them such rights and immunities.[98]
On Washington’s birthday, as announced in the proclamation of General
Banks, an election was held in seventeen parishes, Hahn receiving 6,183,
Fellows 2,996 and Flanders 2,232 votes, a total of 11,411, of which 107
were cast by Louisiana soldiers stationed at Pensacola, Florida.[99]
Writing February 25 to the President General Banks says:
The election of the 22d of February was conducted with great spirit
and propriety. No complaint is heard from any quarter, so far as I
know, of unfairness or undue influence on the part of the officers
of the Government. At some of the strictly military posts the entire
vote of the Louisiana men was for Mr. Flanders, at others for Mr.
Hahn, according to the inclination of the voters. Every voter
accepted the oath prescribed by your proclamation of the 8th of
December.... The ordinary vote of the State has been less than forty
thousand. The proportion given on the 22d of February is nearly
equal to the territory covered by our arms.[100]
The friends of the Free State General Committee in a protest pronounced
the result of the election “the registration of a military edict,” and
“worthy of no respect from the representatives and Executive of the
nation.” To the question whether this election had in the meaning of the
President reëstablished a State government they promptly answered in the
negative, for the commanding general recognized the Louisiana
constitution of 1852 and ordered an election under it in which the votes
of the people had nothing to do with reëstablishing government; his
proclamation, by recognizing the existence of the old constitution, made
the reëstablishment beforehand for them. The Governor and
Lieutenant-Governor, together with the other executive officers chosen,
did not, they argued, constitute a State government; for all the
constitutions of Louisiana, including that of 1852, described the
government as consisting of three departments: executive, legislative
and judicial.
Though not avowed, the reason of Banks’ failure to order an election for
members of the Legislature was plain, for there was not, they claimed,
within the Union lines a sufficient number of parishes to elect a
majority of that body, and less than a majority was, by the
constitution, not a quorum to do business; so that no officer elected
could be legally paid, for that could be done by only a legal
appropriation. The same constitution, they said further, provided that
Justices of the Supreme and District Courts, as well as justices of the
peace, should be elected by the people. The present incumbents had been
simply appointed by General Shepley. Should Mr. Hahn under pretence of
being civil governor undertake to appoint judicial officers, the act
would be a mere usurpation.
Not only, they declared, had no State government been established by
this election, but still further, the proclamation of the President had
not in the matter of electors been complied with; for Article XII. of
the constitution of 1852 says: “No soldier, seaman, or marine in the
army or navy of the United States ... shall be entitled to vote at any
election in this State.” Yet, continued the protestants, it was a
notorious fact that the general commanding permitted soldiers recruited
in Louisiana, and otherwise qualified, to vote, and that many availed
themselves of the privilege. Again, they went on to say, the Legislature
by act of March 20, 1856, provided for the appointment in New Orleans of
a register of voters whose office should be closed three days before an
election, and no one registered during that period. Now prior to the
late election, the register having closed his office according to law,
orders were at once given to two other officers, recorders of the city,
who had no such powers or functions by law, to register voters, which
they did night and day, and persons so registered were allowed to vote.
Referring to the declared intention of General Banks to order an
election of delegates to a constitutional convention, and by a
subsequent order fix the basis of representation, the number of
delegates and the details of the election, they said: “This will put the
whole matter under military control, and the experience of the last
election shows that only such a convention can be had as the
overshadowing influence of the military authority will permit. Under an
election thus ordered, and a constitution thus established, a republican
form of government cannot be formed. It is simply a fraud to call it the
reëstablishment of a State government. In these circumstances, the only
course left to the truly loyal citizens of Louisiana is, to protest
against the recognition of this pretended Government, and to appeal to
the calm judgment of the nation to procure such action from Congress as
will forbid military commanders to usurp the powers which belong to
Congress alone, or to the loyal people of Louisiana.”[101]
But neither the protest nor the criticism of Free State men availed to
arrest the march of events, and in the presence of a vast multitude
Michael Hahn, who had received a majority of all the votes cast, was
inaugurated Governor amidst great enthusiasm on March 4. To the oath
prescribed in the amnesty and reconstruction proclamation of December 8,
1863, given above, was added the following:
And I do further solemnly swear, that I am qualified according to
the constitution of the State to hold the office to which I have
been elected, and that I will faithfully and impartially discharge
and perform all the duties incumbent on me as Governor of the State
of Louisiana, according to the best of my abilities and
understanding, agreeably to the Constitution and Laws of the United
States, and in support of and according to the constitution and laws
of this State, so far as they are consistent with the necessary
military occupation of the State by the troops of the United States
for the suppression of the rebellion, and the full restoration of
the authority of the United States.[102]
This language clearly indicates the legal theory upon which General
Banks was proceeding, and citizens understood that Mr. Hahn represented
a popular power entirely subordinate to the armed occupation of the
State.
On March 13, 1864, the President wrote the following private letter to
Governor Hahn:
I congratulate you on having fixed your name in history as the first
free-state governor of Louisiana. Now you are about to have a
convention, which, among other things, will probably define the
elective franchise. I barely suggest for your private consideration
whether some of the colored people may not be let in—as, for
instance, the very intelligent, and especially those who have fought
gallantly in our ranks. They would probably help, in some trying
time to come, to keep the jewel of liberty within the family of
freedom. But this is only a suggestion, not to the public, but to
you alone.[103]
Speaking of this personal note Mr. Blaine says: “It was perhaps the
earliest proposition from any authentic source to endow the negro with
the right of suffrage, and was an indirect but most effective answer to
those who subsequently attempted to use Mr. Lincoln’s name in support of
policies which his intimate friends instinctively knew would be
abhorrent to his unerring sense of justice.”[104]
At the suggestion of General Banks, the President two days later
invested Mr. Hahn until further order “with the powers exercised
hitherto by the military governor of Louisiana.”[105]
From the sentiments of the Free State party it requires little insight
into human affairs to foretell that in some manner they would soon be
found in opposition. Their candidate, Mr. B. F. Flanders, who received
fewer votes than either of his competitors, was a prominent official in
the Treasury Department, and from this vantage ground, without, so far
as appears, rebuke from Secretary Chase, began to stir up in Congress a
feeling of hostility to the new government in Louisiana. Precisely why
Mr. Lincoln decided to take into his own hands the entire subject of
reconstruction may be collected without difficulty from what has already
been said; but that this determination was confirmed by his knowledge of
an alliance between the Free State leaders and the “Radicals” in
Congress there can be little doubt.
The Department Commander in a general order gave notice on March 11 that
an election would be held on the 28th of that month for the choice of
delegates to a State convention to meet in New Orleans “for the revision
and amendment of the constitution of Louisiana.”[106] Five days later,
March 16, Governor Hahn, in a proclamation to the sheriffs and other
officers concerned, authorized the election and commanded them to give
due notice thereof to the qualified voters of the State and to make
prompt returns to the Secretary of State in New Orleans.[107]
Pursuant to these notices the election was held on the 28th, and
resulted in the choice of ninety-seven members, two of whom were
rejected because of irregular returns. The entire State was entitled to
150 delegates. The parish of Orleans was represented by sixty-three
members, leaving to the country parishes but thirty-two. Of the vote,
which was exceedingly light, no return appears to have been published.
Because of their recent defeat no nominations were made by the Radicals,
and this fact, together with heavy rains on election day, was assigned
by Governor Hahn in a letter to the President as an explanation of the
meagre vote. The Parish of Ascension, which in 1860 had a population of
3,940 whites, elected her delegates by 61 votes; Placquemines, which by
the same census had 2,529 white inhabitants, cast 246, while the single
delegate from Madison was chosen by only twenty-eight electors.[108]
General Banks informed a committee of Congress that all that section of
the State as far up as Point Coupée voted; some men from the Red River
cast their ballots at Vidalia. In his statement he declared that “The
city of New Orleans is really the State of Louisiana”; yet at that time
it contained less than half the population of the State.[109]
The constitutional convention, which assembled April 6, 1864, was
organized on the 7th with E. H. Durell as president, and after a session
of more than two and a half months adjourned July 25. A proclamation of
the Governor appointed the 5th of September as the time for taking a
vote on the work of the convention. The result was 6,836 for the
adoption, and 1,556 for the rejection of the constitution. Besides these
there were a number of electors who did not vote on either side of the
question.[110]
Of the work of the convention General Banks spoke as follows:
In a State which held 331,726 slaves, one half of its entire
population in 1860, more than three fourths of whom had been
specially excepted from the Proclamation of Emancipation, and were
still held _de jure_ in bondage, the convention declared by a
majority of all the votes to which the State would have been
entitled if every delegate had been present from every district in
the State:—
Instantaneous, universal, uncompensated, unconditional emancipation
of slaves!
It prohibited forever the recognition of property in man!
It decreed the education of all the children, without distinction of
race or color!
It directs all men, white or black, to be enrolled as soldiers for
the public defence!
It makes all men equal before the law!
It compels, by its regenerating spirit, the ultimate recognition of
all the rights which national authority can confer upon an oppressed
race!
It wisely recognizes for the first time in constitutional history,
the interest of daily labor as an element of power entitled to the
protection of the State.[111]
At the same election, that of September 5, the following persons were
chosen Representatives in Congress: M. F. Bonzano, A. P. Field, W. D.
Mann, T. M. Wells and R. W. Taliaferro. A Legislature was elected at the
same time, the members of which were almost entirely in favor of a free
State, and by this body seven electors of President and Vice-President
were appointed. On October 10th two United States Senators were
elected—R. King Cutler for the unexpired term ending March 4, 1867, and
Charles Smith for the vacancy created by the resignation of Judah P.
Benjamin, and ending March 4, 1865.[112]
It is matter of familiar history that the State government thus
organized was never recognized by Congress. The question was presented
to that body December 5, 1864, at the opening of the second session of
the Thirty-eighth Congress, when the claimants above named appeared in
Washington applying for admission to seats, and again in January and
February, 1865, upon consideration of a joint resolution declaring
certain States not entitled to representation in the Electoral College.
As in the case of Tennessee, however, the vote offered by Louisiana was
not counted.
The agency of the President in setting up this civil government, and the
successive steps in its accomplishment have been related with some
degree of minuteness, so that the nature of the controversy between the
Executive and the Legislative branches of the Government may be better
understood. Whether Mr. Lincoln exceeded his constitutional authority
will be considered when an account has been presented of the result of
his efforts to restore civil government in the States where Federal
authority had been overthrown.
-----
Footnote 47:
Ann. Cycl., 1861, p. 427.
Footnote 48:
McPherson’s Pol. Hist., p. 4n.
Footnote 49:
McPherson’s Pol. Hist., p. 25; Ann. Cycl., 1861, p. 428.
Footnote 50:
Ann. Cycl., 1861, p. 432.
Footnote 51:
Ibid.
Footnote 52:
Taylor’s Destruction and Reconstruction, pp. 102–103.
Footnote 53:
McPherson’s Pol. Hist., p. 1.
Footnote 54:
Ann. Cycl., 1863, p. 589.
Footnote 55:
Letters and State Papers of Lincoln, Vol. II., pp. 214–215; Ann.
Cycl., 1862, p. 650.
Footnote 56:
Letters and State Papers of Lincoln, Vol. II., p. 216.
Footnote 57:
Ibid., pp. 217–218.
Footnote 58:
Ann. Cycl., 1863, p. 586.
Footnote 59:
Ann. Cycl., 1863, p. 586.
Footnote 60:
Ibid.
Footnote 61:
Ann. Cycl., 1863, p. 586.
Footnote 62:
Ann. Cycl., 1863, p. 587; Ibid., pp. 770–776. Scott’s Reconstruction
During the Civil War, pp. 325–326, 328–331, 376.
Footnote 63:
Letters and State Papers of Lincoln, Vol. II. p. 247.
Footnote 64:
Ibid.
Footnote 65:
Ibid., p. 255.
Footnote 66:
Globe, Part I., 3 Sess. 37th Cong., p. 835.
Footnote 67:
Globe, Part I., 3 Sess. 37th Cong., pp. 831–837, 1030–1036.
Footnote 68:
McPherson’s Pol. Hist., pp. 228–229.
Footnote 69:
Blaine’s Twenty Years of Congress, Vol. II. p. 39; Nicolay and Hay’s
Lincoln, Vol. VIII. p. 419.
Footnote 70:
Ann. Cycl., 1863, p. 589.
Footnote 71:
N. & H., Vol. VIII. p. 420.
Footnote 72:
Ann. Cycl., 1863, p. 590; Letters and State Papers of Lincoln, Vol.
II. p. 536.
Footnote 73:
Letters and State Papers of Lincoln, Vol. II. p. 356.
Footnote 74:
Ibid., pp. 214–215.
Footnote 75:
Ibid., p. 356.
Footnote 76:
Taylor’s Destruction and Reconstruction, ch. x; also the general
history of military operations in the Red River country.
Footnote 77:
Bulloch’s Secret Service of the Confederate States in Europe, Vol. II.
chs. i and ii.
Footnote 78:
N. & H., Vol. VIII. pp. 285–286; Conduct of the War, Vol. II. pp.
1–401 (_passim_).
Footnote 79:
Letters and State Papers of Lincoln, Vol. II. p. 380.
Footnote 80:
Letters and State Papers of Lincoln, Vol. II. p. 436.
Footnote 81:
Ann. Cycl., 1863, p. 591.
Footnote 82:
Ibid.
Footnote 83:
Ann. Cycl., 1863, pp. 591–592.
Footnote 84:
Globe, Part I., 1 Sess. 38th Cong., pp. 5–6.
Footnote 85:
Globe, Part I., 1 Sess. 38th Cong., pp. 411–415, 543–547.
Footnote 86:
See pp. 24–28 _ante_.
Footnote 87:
Ann. Cycl., 1863, pp. 592–593.
Footnote 88:
Globe, Part I., 1 Sess. 38th Cong., p. 543.
Footnote 89:
Ann. Cycl., 1863, p. 590.
Footnote 90:
Ann. Cycl., 1863, p. 591.
Footnote 91:
Letters and State Papers of Lincoln, Vol. II. pp. 458–459.
Footnote 92:
Letters and State Papers of Lincoln, Vol. II. pp. 465–466.
Footnote 93:
N. & H., Vol. VIII. pp. 428–430.
Footnote 94:
Ibid., p. 469.
Footnote 95:
Ann. Cycl., 1863, p. 592.
Footnote 96:
Ann. Cycl., 1863, pp. 592–593.
Footnote 97:
Ann. Cycl., 1864, p. 476.
Footnote 98:
Ibid.
Footnote 99:
Ann. Cycl., 1864, p. 476.
Footnote 100:
N. & H., Vol. VIII. pp. 432–433.
Footnote 101:
Ann. Cycl., 1863, pp. 593–594.
Footnote 102:
Ann. Cycl., 1864, p. 477.
Footnote 103:
Letters and State Papers of Lincoln, Vol. II. p. 496.
Footnote 104:
Twenty Years of Congress, Vol. II. p. 40.
Footnote 105:
Letters and State Papers of Lincoln, Vol. II. p. 498.
Footnote 106:
Ann. Cycl., 1864, p. 478.
Footnote 107:
Ibid.
Footnote 108:
Ann. Cycl., 1864, pp. 478–479.
Footnote 109:
Ibid.
Footnote 110:
Ibid., p. 479.
Footnote 111:
Ann. Cycl., 1864, p. 479.
Footnote 112:
Ibid.
III
ARKANSAS
The people of northern Arkansas were strongly attached to the Union, and
until December 20, 1860, when a commissioner from Alabama addressed its
Legislature, no secession movement took place within the State. Her
geographical position classed her with the Western, her productions
bound up her interests with the Southern, States.[113] As late as
January 5, 1861, resolutions opposing separate action were adopted
almost unanimously by the largest meeting ever held at Van Buren. Mr.
Lincoln’s election was not then deemed a sufficient cause to dissolve
the Union. Citizens of every party favored all honorable efforts for its
preservation, and demonstrations to the contrary were regarded as the
work of only an extreme and inconsiderable faction.[114] So rapid,
however, was the succession of events that scarcely two weeks had
elapsed when she exhibited signs of resting uneasily in the Union; for
on January 16 a bill submitting to popular vote the question of holding
a convention passed the Legislature.[115] At the election of delegates
to this assembly 23,626 votes were cast for the Union, against 17,927
for the secession, candidates. Though this convention, which assembled
March 4, was organized by the choice of Union officers, the proposal to
hold it had been carried by a majority of 11,586 in the election of
February 18. While secession was strongly urged, a conditional ordinance
was defeated by a vote of 39 to 35.[116] At Van Buren and Fort Smith
salutes of thirty-nine guns were fired in honor of the loyal members.
The inaugural of President Lincoln, received two days after organizing,
produced a somewhat unfavorable impression. On the 17th an ordinance,
reported by a self-constituted committee of seven secessionists and
seven coöperationists, was unanimously adopted.[117] This provided for
an election on the first Monday of August, when the qualified voters in
the State could cast their ballots either for “secession” or
“coöperation.” The result, though not wholly satisfactory to either
party, afforded time for deliberation.
Tidings of the fall of Sumter, together with the President’s
proclamation and a requisition for troops from the Secretary of War,
interrupted the brief interval of repose following the adjournment of
the convention. In these circumstances the State was compelled to make a
choice of sides. Governor Rector’s reply, April 22, to this requisition
shows him to have been ardently in favor of disunion; the president of
the convention, concurring in this sentiment, issued a call for that
body to reassemble May 6, when an ordinance of secession was promptly
passed with but one dissenting vote.[118] By a resolution the convention
authorized the Governor to call out, if necessary, 60,000 men, and
ordered the issue of $2,000,000 in bonds. Another ordinance confiscated
debts due to persons in non-slaveholding States.[119]
The first military movement, after the ordinance of secession had been
carried, aimed to secure Federal property within the State, and their
value to the South singled out for seizure the arsenals at Fort Smith
and Little Rock. The latter city on February 5 was thrown into a great
turmoil of confusion and excitement by the unexpected arrival of a body
of troops from Helena with the avowed purpose of taking the arsenal;
more soldiers arrived during that and the succeeding day until about 400
had assembled. Though the Governor, in response to their inquiry,
informed the city council that this force was not there by his order,
the troops believed they were acting under his command; at any rate they
came to take the arsenal and were not to be diverted from their object.
To prevent a collision, which must have followed a refusal of the
commanding officer to surrender to a body of men disavowed by their
Governor, the latter was easily persuaded to assume the responsibility
of the movement and he consented to demand its surrender in the name of
the State. This demand Captain Totten asked until three o’clock the next
day to consider; then he made known his readiness to evacuate the
arsenal, which about noon of the following day was delivered to the
State authorities.[120]
The delegates of Arkansas on May 18 took their seats in the Confederate
Congress.[121] The convention, it will be observed, assumed at the
outset the functions of a law-making body, and, because of further
extending its authority by the appointment of a Military Board, soon
came into conflict with both the Governor and the Legislature. When the
convention empowered the former to call out, if necessary, 60,000 men it
divided the State into two districts, an eastern and a western. General
Bradley was elected to the command of the former and General Pearce,
late of the United States Army, to that of the latter division. Before
General McCulloch, stationed in the Indian Territory, could assume any
offensive operations the Federal General, Lyon, in pursuit of Jackson,
approached the southern boundary of Missouri; upon this the Military
Board called out ten regiments for defence. On June 21 it despatched to
Richmond a messenger who proposed to transfer to the Confederate
Government all the State troops with their arms making, however, a
condition precedent: they were to be employed for the protection of
Arkansas; but as the Secretary of State could make no promise as to
their future disposition the transfer was not then effected.[122] On
July 4 a second effort was made by a member of the Military Board who
visited General Hardee, with whom an arrangement was completed by which
a vote should be taken among the troops. If a majority of each company
consented, those so consenting were to be turned over as a company. If a
majority declined, the company was to be disbanded altogether. One
entire company was thus mustered out, and from various motives two or
three hundred soldiers returned home. This was from the eastern
division. The western was not so easily disposed of. The Military Board
after the battle of Springfield directed General Pearce to turn over his
force to Hardee, who became angry when the agent proposed to submit the
question of transfer, and refused to allow it to be done; this
insubordinate conduct he followed up by writing an abusive letter to the
Board. Pearce then separated his troops from McCulloch’s command and
marched them back to Arkansas, where they were informally disbanded and
sent home. Fearing such a result, the Board had ordered General Pearce
to do nothing further in the matter, but their despatches arrived too
late.[123]
Governor Rector’s account shows Arkansas troops, claimed to be 22,000 in
number, to have been at that time in a state of complete
demoralization.[124] The Germans and the Irish, as well as their
descendants, showing little inclination to enlist, the Governor ascribed
their indifference to a want of opportunity for promotion in the
service. If this was not the cause, then, he thought, authority should
be given to draft a regiment of each race.[125]
More than a third of the voting population was in the field, and as late
as October they had received no pay except Arkansas war bonds, the
worthlessness of which occasioned much murmuring. This discontent was
heightened somewhat by the poor equipment of the regiments, many
soldiers being without blankets or shoes.[126] There were other symptoms
of unrest within the State. On the charge of attempted insurrection two
negro men and a girl were hanged in Monroe County.
All this occasioned much uneasiness, but the chief cause of alarm was
the Union sentiment known to exist in the State. In October twenty-seven
persons were brought to Little Rock as members of a secret Union
organization in Van Buren County and placed in jail to await a civil
trial. Many others also were taken about this time, and it was estimated
that the “Peace and Constitutional Society” numbered 1,700 members in
Arkansas.[127]
The activity of Federal armies in the West excited so much apprehension
that Governor Rector on the 18th of February, by proclamation, called
into immediate service every man in the State subject to military
duty.[128] A Confederate force under Price was driven into Arkansas by
General Curtis on the same day, and within a week the commandant at
Pocahontas issued an appeal to every man “to turn out promptly, shoulder
his musket, and drive the vandals from the State.” The Richmond
Government being unable to assist Arkansas, she was forced to rely upon
her own resources and such aid as might be obtained from Missouri, the
Indian Territory and Texas.[129]
Disaster and a conviction of neglect led the Governor in May, in an
address to the people, to express his indignation and threaten to secede
from secession. He said:
If the arteries of the Confederate heart do not permeate beyond the
east bank of the Mississippi, let southern Missourians, Arkansians,
Texans and the great West know it and prepare for the future.
Arkansas lost, abandoned, subjugated is not Arkansas as she entered
the Confederate Government. Nor will she remain Arkansas, a
Confederate State, desolated as a wilderness. Her children, fleeing
from the wrath to come, will build them a new ark, and launch it on
new waters, seeking a haven somewhere of equality, safety and
rest.[130]
After the battle of Pea Ridge General Curtis moved to White River, and
on May 1 occupied Batesville, where he witnessed many demonstrations of
attachment to the Union. Judges of courts, clergymen and other leading
citizens came forward and voluntarily took the oath of allegiance to the
United States. A threatened advance of the Union forces upon Little Rock
created the greatest excitement there, and the Governor by proclamation
ordered the militia to repair immediately to its defence; but not
finding himself sufficiently supported he fled.[131] The concentration
at Corinth of all available Confederate strength was the cause of the
weakness of Arkansas at this time. Ten regiments had also been withdrawn
from the army of General Curtis to reënforce the Federal troops in
Mississippi. This left him in no condition to march upon the State
capital, and for the time it was saved. Twelve thousand poorly equipped
men had assembled there in response to the appeal of Governor Rector.
After the occupation of Helena by Federal troops Mr. Lincoln appointed
John S. Phelps, of Missouri, military governor.[132] On August 19, 1862,
he left St. Louis for Helena; but as the contemplated movement was not
then made his office was of little importance. From the Union refugees
at that point two regiments of Arkansas men were organized. The fall of
Vicksburg in July, 1863, however, enabled the Union army to assume
offensive operations, and the summer had not greatly advanced before a
strong column was moving on Little Rock, the capture of which, September
10, 1863, was a fatal blow to Confederate authority throughout the
State.
Amidst all its distresses the northern section of Arkansas had
maintained its loyalty. Recent reverses to Confederate arms encouraged
desertion from their ranks, Union sympathizers became active, and
movements begun by them were joined by numbers who now regarded the
Confederate cause as lost. Many, however, fearing a restoration of that
authority, hesitated to identify themselves with the more pronounced
loyalists. A newspaper favorable to the General Government was
established at the capital. Meetings were held, and resolutions pledging
unconditional support of the Union cause adopted. Citizens, both white
and black, were organized, and by December, 1863, eight regiments of
Arkansas troops had enlisted in the Federal service.[133]
A still more encouraging symptom was the return of eminent persons who
now came forward to advocate the Union cause. Prominent among these was
Brigadier-General E. W. Gantt, of the Confederate army, recently a
prisoner of war and pardoned under the Amnesty Proclamation of the
President. Toward the close of 1863 he thus describes the feeling of the
people:
The Union sentiment is manifesting itself on all sides and by every
indication—in Union meetings—in desertions from the Confederate
army—in taking the oath of allegiance unsolicited—in organizing for
home defence, and enlisting in the Federal army. Old flags that have
been hid in the crevices of rocks, and been worshipped by our
mountain people as holy relics, are flung to the breeze, and
followed to the Union army with an enthusiasm that beggars all
description. The little county of Perry, that votes only about 600,
and which has been turned wrong side out in search of conscripts by
Hindman and his fellow-murderers and oppressors, with their retinue
of salaried gentlemen and negro boys, sent down a company of
ninety-four men. Where they came from, and how they kept their old
flag during these three years of terror, persecution and plunder, I
can’t tell. But they were the proudest-looking set of men I ever
saw, and full of fight.[134]
The retreat of General Banks from the Red River country changed greatly
the aspect of Federal affairs in Arkansas, for it allowed all the
Confederate forces in the vicinity to concentrate against the small army
of General Steele, compelling him to act on the defensive at Little
Rock. The State coming once more to a considerable extent under
Confederate control, loyalists became scarce and gradually lost energy
and hope.
Local reverses, however, were not allowed to interrupt the comprehensive
policy of the President, and early in 1864 preparations were made to
reorganize the State government. This movement, like those in Tennessee
and Louisiana, was based upon the Amnesty and Reconstruction
Proclamation of December 8, 1863. Even before this step had been taken
the President was already moulding the diverse elements into a power
that would ultimately undermine Confederate influence in the State. In
the preceding summer, July 31, 1863, he had written General S. A.
Hurlbut:
I understand that Senator Sebastian, of Arkansas, thinks of offering
to resume his place in the Senate. Of course the Senate, and not I,
would decide whether to admit or reject him. Still I should feel
great interest in the question. It may be so presented as to be one
of the very greatest national importance; and it may be otherwise so
presented as to be of no more than temporary personal consequence to
him.
The emancipation proclamation applies to Arkansas.... I think I
shall not retract or repudiate it. Those who shall have tasted
actual freedom I believe can never be slaves or quasi-slaves again.
For the rest, I believe some plan substantially being gradual
emancipation would be better for both white and black. The Missouri
plan, recently adopted, I do not object to on account of the time
for ending the institution; but I am sorry the beginning should have
been postponed for seven years, leaving all that time to agitate for
the repeal of the whole thing. It should begin at once, giving at
least the new-born a vested interest in freedom which could not be
taken away. If Senator Sebastian could come with something of this
sort from Arkansas, I, at least, should take great interest in his
case; and I believe a single individual will have scarcely done the
world so great a service. See him, if you can, and read this to him;
but charge him to not make it public for the present.[135]
Union officers in the West were urged by Mr. Lincoln in October, 1862,
to assist and encourage repentant rebel communities to elect both State
officers and members of Congress.[136] As this involved a recognition of
existing governments it need scarcely be observed that the march of
events forced the President later to occupy somewhat different ground;
nor is it more necessary to add, that to his main purpose, to undermine
secession and restore the Union, he adhered inflexibly. With this
fundamental object all his acts harmonize.
At the time of her secession, W. K. Sebastian represented Arkansas in
the United States Senate and abandoned his seat; he was now ready to
assist in restoring his State to her old status. Of these evidences of
disintegration in Confederate interests within the State the President
was very exactly informed, and it was because of his conviction that
many persons hitherto supporting that cause were either wavering in
their allegiance or had become hostile to secession that he wrote,
January 5, 1864, to General Steele:
I wish to afford the people of Arkansas an opportunity of taking the
oath prescribed in the proclamation of December 8, 1863, preparatory
to reorganizing a State Government there. Accordingly I send you by
General Kimball some blank books and other blanks, the manner of
using which will, in the main, be suggested by an inspection of
them; and General Kimball will add some verbal explanations.
Please make a trial of the matter immediately at such points as you
may think likely to give success. I suppose Helena and Little Rock
are two of them. Detail any officer you may see fit to take charge
of the subject at each point; and which officer, it may be assumed,
will have authority to administer the oath. These books, of course,
are intended to be permanent records. Report to me on the
subject.[137]
A week had scarcely elapsed when Mr. Lincoln approved the suggestions of
General Banks relative to reinaugurating a civil government for
Louisiana, and, doubtless, he knew no reason why similar work might not
be going on simultaneously in Arkansas; therefore he repeated to General
Steele what in substance he had already communicated to the Federal
commander of the Department of the Gulf. His instructions, dated January
20, 1864, and quoted below, are self-explanatory, and in no important
particular differ from the Louisiana Plan:
Sundry citizens of the State of Arkansas petition me that an
election may be held in that State, at which to elect a governor
thereof; ... that it be assumed at said election and thenceforward
that the constitution and laws of the State, as before the
rebellion, are in full force, except that the constitution is so
modified as to declare that “there shall be neither slavery nor
involuntary servitude, except in the punishment for crime whereof
the party shall have been duly convicted; but the General Assembly
may make such provision for the free people as shall recognize and
declare their permanent freedom, provide for their education, and
which may yet be consistent, as a temporary arrangement, with their
present condition as a laboring, landless, and homeless class;” and
also except that all now existing laws in relation to slaves are
inoperative and void; that said election to be held on the
twenty-eighth day of March next at all the usual voting places of
the State, or all such as voters may attend for that purpose; that
the voters attending at each place at 8 o’clock in the morning of
said day, may choose judges and clerks of election for that place;
that all persons qualified by said constitution and laws, and taking
the oath prescribed in the President’s proclamation of December the
8th, 1863, either before or at the election, and none others, may be
voters, provided that persons having the qualifications aforesaid,
and being in the volunteer military service of the United States,
may vote once wherever they may be at voting places; that each set
of judges and clerks may make return directly to you on or before
the eleventh day of April next; that in all other respects said
election may be conducted according to said modified constitution
and laws; that on receipt of said returns, you count said votes, and
that if the number shall reach or exceed five thousand four hundred
and six, you canvass said votes and ascertain who shall thereby
appear to have been elected governor; and that on the eighteenth day
of April next, the person so appearing to have been elected, and
appearing before you at Little Rock to have, by you, administered to
him an oath to support the Constitution of the United States and
said modified constitution of the State of Arkansas, and actually
taking said oath, be, by you, declared qualified, and be enjoined to
immediately enter upon the duties of the office of governor of said
State; and that you thereupon declare the constitution of the State
of Arkansas to have been modified and amended as aforesaid by the
action of the people as aforesaid.
You will please order an election immediately, and perform the other
parts assigned you, with necessary incidentals, all according to the
foregoing.[138]
By discussion and organization the elements opposed to the Richmond
Government aroused so much enthusiasm that Unionists anticipated the
wishes of the President by meeting, January 8, 1864, in convention at
Little Rock. This assembly, composed of forty-four delegates
representing, as they claimed, twenty-two of the fifty-four counties in
the State, was made up of members elected at various mass meetings by
very meagre votes. This at least was an objection then urged by those
who were adverse to the purposes of the convention. They further stated
that many of the counties represented were without the Federal military
lines. It was admitted that if these counties lay beyond Union lines
neither were they occupied by Confederate forces, and that generally the
delegates were gentlemen of character and patriotism.[139]
In a published address the convention stated frankly:
We found after remaining at Little Rock about a week, under a
temporary organization, that delegates were present from twenty-two
counties, elected by the people, and that six other counties had
held elections, and that their representatives were looked for
daily. We then organized the Convention permanently, and determined
that while we could not properly claim to be the people of Arkansas
in Convention assembled, with full and final authority to adopt a
constitution, yet, being the representatives, by election, of a
considerable portion of the State, and understanding, as we
believed, the sentiment of nearly all our citizens who desire the
immediate benefits of a government under the authority of the United
States, we also determined to present a constitution and plan of
organization, which, if adopted by them, becomes at once their act
as effectually as if every county in the State had been represented
in the Convention.[140]
An amended constitution was adopted by this convention on January 22. By
it the act of secession was declared null and void; slavery was
abolished immediately and unconditionally, and the Confederate debt
wholly repudiated.[141] These important changes in the fundamental law
of the State indicate the sentiments of the delegates. Isaac Murphy was
appointed Provisional Governor; C. C. Bliss, Lieutenant-Governor and R.
T. J. White, Secretary of State. These officers were inaugurated on the
same day that the convention adopted the constitution; this by its
schedule was to be submitted to a popular vote at an election to be held
March 14, when State officers and Representatives in Congress would also
be chosen.[142]
Ignorant that the movement to restore a civil government had proceeded
so far, Mr. Lincoln had sent his instructions to General Steele. As
these had been carefully considered it was feared the work of the
convention would differ in some essential particular from the plan
outlined for the Federal commander. To prevent such a consequence the
President wrote General Steele again on January 27 as follows:
I have addressed a letter to you and put it in the hands of Mr.
Gantt and other Arkansas gentlemen, containing a program for an
election in that State. This letter will be handed you by some of
these gentlemen. Since writing it, I see that a Convention in
Arkansas having the same general object, has taken some action,
which I am afraid may clash somewhat with my program. I therefore
can do no better than to ask you to see Mr. Gantt immediately on his
return, and with him do what you and he may deem necessary to
harmonize the two plans into one, and then put it through with all
possible vigor. Be sure to retain the free-State Constitutional
provision in some unquestionable form and you and he can fix the
rest. The points I have made in the program have been well
considered. Take hold with an honest heart and a strong hand. Do not
let any questionable man control or influence you.[143]
The President’s interest in the proceedings of the convention and his
anxiety about the outcome of its deliberations appear in a letter to
General Steele written three days after the above.[144] So favorable
were his impressions of the progress reported that he believed the best
his subordinate could do “would be to help them on their own plan”; of
this, however, General Steele, who was on the ground, was to be the
judge. To Governor Murphy he telegraphed, February 6, that his order
concerning an election was made in ignorance of any action which the
convention might take; also that his subsequent communication to General
Steele directed that officer to assist, not to hinder, the
delegates.[145] General Thayer also was informed that the apparent
conflict between the President and the convention was altogether
accidental.[146] On February 17, Mr. Lincoln explained the situation
more fully to William M. Fishback:
When I fixed a plan for an election in Arkansas I did it in
ignorance that your convention was doing the same work. Since I
learned the latter fact I have been constantly trying to yield my
plan to them. I have sent two letters to General Steele, and three
or four despatches to you and others, saying that he, General
Steele, must be master, but that it will probably be best for him to
merely help the convention on its own plan. Some single mind must be
master, else there will be no agreement in anything, and General
Steele, commanding the military and being on the ground, is the best
man to be that master. Even now citizens are telegraphing me to
postpone the election to a later day than either that fixed by the
convention or by me. This discord must be silenced.[147]
The President evidently had learned something from his recent experience
with his friends and subordinates in Louisiana. General Steele from his
headquarters at Little Rock issued on February 29 the following address
to the people of Arkansas:
The convention of your citizens, held at Little Rock during the last
month [says this proclamation], has adopted a constitution and
submitted it to you for your approval or rejection. That
constitution is based upon the principles of freedom, and it is for
you now to say, by your voluntary and unbiased action, whether it
shall be your fundamental law. While it may have defects, in the
main it is in accordance with the views of that portion of the
people who have been resisting the fratricidal attempts which have
been made during the last three years. The convention has fixed the
14th day of March next on which to decide this great question, and
the General commanding is only following the instructions of the
Government when he says to you that every facility will be offered
for the expression of your sentiments, uninfluenced by any
considerations save those which affect your own interests and those
of your posterity.... The election will be held and the return be
made in accordance with the schedule adopted by the convention, and
no interference from any quarter will be allowed to prevent the free
expression of the loyal men of the State on that day.[148]
The election pursuant to this notice began March 14, 1864, the polls
remaining open for three days. For the constitution 12,177, and against
it 226, votes were cast.[149] Isaac Murphy, against whom there was no
opposing candidate, was chosen Governor by 12,430 votes cast by the
citizens of more than forty counties. As early as March 18 the President
appears to have received from the Governor-elect some favorable
tidings,[150] and on April 27, when more complete returns had reached
him from the same source, he expressed in a telegram his gratification
at the large vote, more than double that required by the Louisiana Plan,
and also at the intelligence that the State government, including the
Legislature, was organized and in working order.[151]
Besides a Governor five other officers of the executive and several
members of the judicial branch of government together with many county
officials were chosen.[152] At the same time three Representatives in
Congress, T. M. Jacks, A. A. C. Rogers and J. M. Johnson, were elected
from the First, Second and Third Districts respectively. The
Legislature, composed of twenty-three Senators and fifty-nine members of
Assembly, met on the 11th of April, and during the session, which ended
June 1 succeeding, appointed William Fishback and Elisha Baxter United
States Senators to fill vacancies caused by the secession of the late
incumbents, R. W. Johnson and William K. Sebastian. After investigation
by a committee of Congress, however, they were declared not entitled to
seats; but as each possessed such a title to membership as to justify
inquiry they were paid mileage. This consideration they were denied
when, without new action, they subsequently presented themselves at a
special session of the Senate; on that occasion they were accompanied by
William D. Snow, who had been chosen to succeed Fishback. It was agreed,
March 9, 1865, to postpone till the next session of Congress
consideration of the credentials of Mr. Snow. The House, without
admitting as Representatives the three claimants for seats, had
consented to allow them mileage. Arkansas, unlike Louisiana and
Tennessee, did not participate in the Presidential election of 1864,
because of a feeling that its electoral vote would not be received even
if offered. This course appears to have been adopted on the suggestion
of their representatives, who returned with such a conviction from a
sojourn in Washington.[153]
A succeeding chapter, in tracing the origin and progress of the
controversy between the Executive and Legislative branches of
Government, will describe more fully the attitude of Congress toward Mr.
Lincoln’s efforts at reconstruction and afford an opportunity for
discussing both the nature of the conventions by which civil government
had been restored in Tennessee, Louisiana and Arkansas, and the
constitutionality of the various Executive acts by which this
reëstablishment was assisted.
-----
Footnote 113:
Ann. Cycl., 1861, p. 22.
Footnote 114:
Ibid.
Footnote 115:
McPherson’s Pol. Hist., p. 4.
Footnote 116:
Ann. Cycl., 1861, p. 22.
Footnote 117:
Ibid.
Footnote 118:
Ibid., p. 23.
Footnote 119:
Ibid., pp. 23–24.
Footnote 120:
Ann. Cycl., 1861, p. 24.
Footnote 121:
Ibid.
Footnote 122:
Ann. Cycl., 1861, p. 24.
Footnote 123:
Ibid.
Footnote 124:
Ibid.
Footnote 125:
Ann. Cycl., 1861, p. 25.
Footnote 126:
Ibid.
Footnote 127:
Ibid.
Footnote 128:
Ibid., 1862, p. 11.
Footnote 129:
Ann. Cycl., 1862, p. 11.
Footnote 130:
Ibid.
Footnote 131:
Ibid.
Footnote 132:
N. & H., Vol. VI. p. 346.
Footnote 133:
Ann. Cycl., 1863, p. 15.
Footnote 134:
Ann. Cycl., 1863, p. 15.
Footnote 135:
Letters and State Papers of Lincoln, Vol. II. p. 379.
Footnote 136:
Ibid., p. 247.
Footnote 137:
Letters and State Papers of Lincoln, Vol. II. p. 467.
Footnote 138:
Letters and State Papers of Lincoln, Vol. II. pp. 472–473.
Footnote 139:
Ann. Cycl., 1864, p. 29; Hough’s American Constitutions, Vol. II. p.
81.
Footnote 140:
Quoted in N. & H., Vol. VIII. p. 414.
Footnote 141:
Hough’s Amer. Cons., Vol. II. p. 81.
Footnote 142:
Ann. Cycl., 1864, p. 29.
Footnote 143:
Letters and State Papers of Lincoln, Vol. II. p. 475.
Footnote 144:
Ibid., p. 476.
Footnote 145:
Ibid., p. 479.
Footnote 146:
Ibid., p. 482.
Footnote 147:
Letters and State Papers of Lincoln, Vol. II. pp. 483–484.
Footnote 148:
Ann. Cycl., 1864, pp. 29–30.
Footnote 149:
Ibid., p. 30.
Footnote 150:
Letters and State Papers of Lincoln, Vol. II. p. 501.
Footnote 151:
Ibid., p. 515.
Footnote 152:
Ann. Cycl., 1864, p. 30.
Footnote 153:
See remarks of Senator Pomeroy, February 2, 1865, Congressional Globe,
Part II., 2 Sess. 38th Cong., p. 555.
IV
VIRGINIA
The Federal Government, as already observed, was constrained at an early
stage of the Civil War to define its attitude toward loyal citizens of
the seceding States. The earliest indications of the policy adopted may
be discerned in the case of Virginia, which presents the only instance
of a people in any of the insurrectionary States organizing open
resistance to revolution. All departments of government in that
Commonwealth having gone over to rebellion, the loyal minority were left
without any organization for the conduct of domestic affairs. In these
circumstances they called a convention which by an original act of
sovereignty reconstituted the government. The progress of the conflict
was attended in that State by consequences not elsewhere observed, and
it is chiefly because of this fact that a slight departure from exact
chronological order is believed to be justified. The principles which
guided the Administration will be easily comprehended by considering
their application to the novel and somewhat embarrassing questions that
arose before rebellion was finally crushed within the borders of that
once glorious Commonwealth.
“The Convention of Virginia” which, by authority of the Legislature,
assembled at Richmond, February 13, 1861, passed on April 17 following
an ordinance of secession from the United States.[154] Though the
injunction of secrecy was never removed from this proceeding, the tally,
discovered soon after among the private papers of a member, shows that
88 delegates favored and 55 opposed the measure; one was excused from
voting, eight were either absent or silent.[155] This strong opposition
is explained in part by the physical characteristics of the State.
The principal chain of the Alleghanies formed in the western portion of
the Old Dominion a lofty range which parts the streams finding their way
into the Ohio and the Potomac from those that reach the lower waters of
Chesapeake Bay or the sounds of North Carolina. The country southeast of
this ridge, including the Shenandoah Valley, the Piedmont district, the
middle division and the tide-water region, contained about three fourths
of the white inhabitants, and something less than three fourths of the
area, of Virginia. In this section were found many large tobacco
plantations cultivated almost exclusively by negroes. Indeed, it was in
the light soil of the tide-water counties of Virginia that English
settlers in America first attempted, nearly two and one half centuries
before, the memorable experiment of African slave labor. Soon after
1808, when their importation was prohibited by act of Congress, slaves
were bred in Virginia to supply the demand of Southern markets, and by
1860 the bondmen in that Commonwealth had become almost two thirds as
numerous as the master race.[156] It is sufficiently accurate to say
that the triangular district bounded on the north by the winding course
of the Potomac, by the parallel of 36° 31′ on the south and stretching
from the Atlantic to the crest of the Alleghany mountains, comprised all
that part of “the good old commonwealth” which was then either
historically important or interesting. This prolific soil was the
birthplace of many of America’s most illustrious sons; its inhabitants
for the most part were proud to trace their descent from the earliest
settlers along the James; many were wealthy, and all had long been
distinguished for their hospitality.
Beyond this favored region the country, which slopes gradually down to
the upper Potomac and the Ohio, is marked by a succession of parallel
ranges separated by fertile valleys; but like the large tract which
encircled the Adirondacks and a similar one in northern Pennsylvania,
the Virginian wilderness remained untouched by the ceaseless tide of
immigration which at the close of the Revolution swept westward from the
Atlantic seaboard. For this uninviting region the second Federal census
indicates less than two inhabitants to the square mile; by 1810 pioneers
from the line of the Ohio river encroached on its silent forests. At the
next census, however, a portion was still unoccupied, but in the
succeeding decennial period it received from various points, chiefly
from Pennsylvania, Ohio and New England, many enterprising and thrifty
settlers. The sixth census, that of 1840, represents the entire tract as
sparsely inhabited.[157] Its abundant resources, then but little
developed, subsequently gave rise to a great variety of profitable
industries, and it advanced rapidly in population. Extensive
plantations, however, were few; the number of slaves, owing somewhat to
the facility for escape, had always been small, and in the ten years
preceding the outbreak of hostilities had actually diminished by upwards
of two thousand.[158] Though it then contained nearly one fourth of the
whites, it included no more than one thirtieth of the negroes in the
State. Their labor, too, except in other than agricultural occupations,
afforded little remuneration. In consequence of its productions as well
as its location both the interests and sympathies of the people were
with the adjoining States of Ohio and Pennsylvania.
But, apart from geographical considerations, northwestern Virginia had a
grievance of long standing: for years its inhabitants had complained
that they were not fairly represented in the Legislature, and the
immunity from taxation enjoyed by their fellow-citizens east of the
mountains was a discrimination too gross to escape attention. The slave
oligarchy, they declared, possessed and wielded for its own advantage
the political power of the State. The question of its dismemberment had
been discussed as early as 1829–30, when the mountain sons of Virginia
were on the verge of revolution. The East then yielded a pittance of
power, which, though far short of the demands of justice, reconciled
western Virginians for the time. In 1850 they were again on the point of
insurrection. On this occasion adequate representation was conceded in
the lower though withheld in the upper chamber of the General Assembly,
the dominant party thus retaining control of that body as well as the
benefits of a constitutional provision by which slaves under the age of
twelve years were exempt from taxation, and of those liable to
assessment none could be valued at more than three hundred dollars even
if worth in the market a thousand dollars or upwards.[159] Moreover,
much of the public revenue was expended upon internal improvements for
the eastern section of the State. The Shenandoah Valley, at one time
showing signs of discontent, was bound by the construction of railways,
in social as well as in commercial life, more firmly to Richmond. In
short, the Alleghanies formed a barrier almost completely cutting off
intercourse between the two divisions. Their relations were well
expressed by Governor Pierpont, who told Senator Wade that there was no
communication whatever between the people except the furnishing a few
members to the Legislature and a few inmates of the penitentiary.[160]
Their different interests tended to alienate the sections; the hand of
nature had traced the line of separation.
Now, however, that a crisis was impending, the Richmond authorities, to
harmonize every element within their Commonwealth, were willing to
forego this privilege; to share the burdens of State administration, to
meet State liabilities, and generally to place themselves on a footing
of equality with their fellow-citizens along the Ohio. This concession,
by a majority of 50,000, was actually extorted in an election from the
prudence or the fears of disunionists whose magnanimity was duly
emphasized by Governor Letcher in an appeal to the people of the
northwest.[161] The latter refused, notwithstanding, to acquiesce in the
action of the secession convention which, so far as it was able to do
so, carried their State, as a political organization, out of the Union.
It may be affirmed generally that the professional politicians and large
property owners of this region were disloyal;[162] State officials with
surprising unanimity were ardent advocates of secession and active in
committing their Commonwealth to its support. An overwhelming proportion
of the plain people, however, were devotedly attached to the Union and
determined on its preservation. Therefore when the Richmond State
government attempted to execute its laws in these parts it encountered
the most spirited resistance. Especially was this true in the Pan Handle
counties, where opposition was promptly organized.
Probably the first consultation upon the grave questions that had arisen
was held at the Court House in Wellsburgh, Brooke County, where a large
number of citizens from that and the adjacent county of Hancock
assembled to hear the report of Mr. Campbell Tarr, their delegate to
Richmond. From Harrison came Hon. John S. Carlile, who, like Mr. Tarr,
narrowly escaped with his life from that city, where he had represented
his county in the convention. They reported the proceedings of that body
and urged immediate preparation to resist. As a result of this
discussion a committee of four was appointed to procure arms and
ammunition in Washington. _En route_ thither they had an interview at
Harrisburg with Governor Curtin, who not only expressed sympathy with
their object, but promised assistance if necessary. On arriving at the
national capital they called upon Hon. Edwin M. Stanton, who was a
native of Steubenville, Ohio, and a warm personal friend of each member
of the committee. They were immediately presented to Mr. Cameron,
Secretary of War, who, on learning the purpose of their visit,
manifested some hesitation as to his legal right to comply with their
request. Upon this Mr. Stanton declared with emphasis that “the law of
_necessity_ gives the right,” and added, “let them have arms and
ammunition; we will look for the book law afterwards.”[163] Two thousand
rifles with suitable ammunition were then furnished, and as security for
their proper use Mr. Stanton tendered his own name. From Wellsburgh,
where they were temporarily kept in expectation of a rebel attack, these
arms were sent for distribution to Wheeling.
United States troops from Ohio and Indiana together with local
volunteers soon drove the Confederate forces from this region, and
subsequently, though often menaced, it was almost exempt from the
ravages of war.[164] Thus encouraged, Union men resolved to form a
political organization coextensive with Virginia or to establish a
separate and distinct State. Preliminary movements toward that end were
promptly inaugurated, and, April 22, 1861, five days after the passage
of the ordinance, nearly 1,200 citizens of Clarksburgh denounced in a
public meeting the action of the secession convention and recommended
the people of northwestern Virginia to assemble on May 13 at Wheeling.
On the 4th a Union mass meeting had been held at Kingwood, near the
northern border. The separation of western from eastern Virginia was
declared by this body to be essential to the maintenance of their
liberties. They also resolved to elect a Representative to Congress. On
the following day there convened at Wheeling another assemblage, which
considered the question of separating from that portion of the State in
rebellion. About the same time other gatherings were held in different
localities.
There were thousands of eager and earnest patriots in the city of
Wheeling on May 13, when nearly four hundred delegates, mostly appointed
by primary meetings, and representing twenty-six counties, assembled to
deliberate on the situation. The best method of organizing opposition to
treason was the question: how to inaugurate a government which the
Federal authorities would recognize and protect?[165] On this important
subject there is said to have been considerable diversity of opinion;
the decision finally reached was based upon a suggestion by one of the
members that since Governor Letcher and other State officers, by
adhering to the pretended ordinance of secession, had forfeited their
powers, and the existing constitution made no provision for such an
emergency, the only way was to ask the people, the source of all
political power, to send delegates to a convention authorized to supply
their places with loyal men. This proposal was presented to the meeting
and adopted with great unanimity.[166] A General State Committee,
empowered to appoint sub-committees in all counties where practicable,
was then named, and a stirring address put forth. It announced their
purpose and urged all loyal citizens to elect representatives to a
second convention. Copies of this appeal were sent to influential
citizens throughout the State, and it was agreed after a session of
three days to choose on May 26 delegates to the proposed convention.
This election having been held at the time appointed, representatives
from nearly forty counties assembled at Wheeling on June 11. The
convention, numbering 98 members, organized by selecting for its
president Hon Arthur I. Boreman. Before proceeding to business the
following oath was administered to the delegation from each county: “We
solemnly declare that we will support the Constitution of the United
States and the laws made in pursuance thereof, as the supreme law of the
land, anything in the Ordinance of the Convention that assembled in
Richmond on the 13th day of February last to the contrary
notwithstanding, so help us God.”[167] The State government was
reconstituted on the 13th by an ordinance declaring vacant all places,
whether legislative, executive or judicial, whose incumbents had
espoused the cause of secession. This class, as already observed,
included nearly every official in Virginia. These vacancies the
convention supplied by the appointment of loyal men. In the constitution
they made an important alteration which prescribed the number of
delegates necessary to constitute a quorum in the General Assembly. All
State, county and town officials were required to take an oath of
allegiance which pledged support of both the Federal Constitution and
the restored government of Virginia. On June 17 a declaration of
independence was adopted without one dissenting voice; it denounced the
usurpation of the Richmond convention, which had assumed to place the
resources of Virginia at the disposal of the Confederate Government, to
which power it repudiated allegiance. Resolutions expressing a
determination never to submit to the ordinance of secession, but to
maintain the rights of Virginia in the Union, were then passed. All
persons in arms against the national Government were commanded to
disband and to return to their allegiance. Though the members seriously
endeavored to reorganize their government, it was with an express
declaration that a division of the Commonwealth was a paramount object
of their labors, and they decided, June 20, by a unanimous vote in favor
of ultimate separation.
Under an ordinance previously adopted Hon. Francis H. Pierpont was
chosen Governor on the same day; a lieutenant-governor, an
attorney-general and an executive council of five were also appointed.
Other administrative offices were subsequently filled. The new
incumbents were to exercise their functions for six months or until
successors should be elected and qualified. The convention on June 25,
subject in an emergency to be reassembled by the Governor and Council,
then adjourned to August 6, 1861.
Before concluding this session the convention directed all members
willing to swear fealty to the Union, who were elected to the assembly
on May 23 preceding, to meet on the 1st of July at Wheeling. At the time
of their election these representatives were destined for Richmond. In
addition to those regularly chosen under the old law of the
Commonwealth, others pursuant to an ordinance of the convention were
elected to fill vacancies. All were to qualify themselves by taking an
oath or affirmation of allegiance to the United States and to the
reorganized government of Virginia. These members, chiefly from the
western counties, were to compose the law-making body, which was
invested with all the powers and duties pertaining to the General
Assembly.
The new Governor was inaugurated on June 20, and, after taking the oath
of office, said: “We have been driven into the position we occupy to-day
by the usurpers at the South, who have inaugurated this war upon the
soil of Virginia, and have made it the great Crimea of this contest. We,
representing the loyal citizens of Virginia, have been bound to assume
the position we have assumed to-day for the protection of ourselves, our
wives, our children, and our property. We, I repeat, have been driven to
assume this position; and now we are but recurring to the great
fundamental principle of our fathers, that to the loyal people of a
State belongs the law-making power of that State. The loyal people are
entitled to the government and governmental authority of the State. And,
fellow-citizens, it is the assumption of that authority upon which we
are now about to enter.”[168]
“It was not the object of the Wheeling convention,” he declared on a
later occasion, “to set up any new government in the State, or separate,
or other government than the one under which they had always
lived.”[169]
From these utterances his hearers must have concluded that the
reorganized government was not for a part but for the whole of Virginia.
Indeed, it was to the discernment of Mr. Pierpont that Virginia
loyalists were chiefly indebted for a legal solution of the intricate
problem that confronted them. While Carlile and others were urging a
counter-revolution, Mr. Pierpont was carefully studying the provisions
of the Federal Constitution. The clause of that instrument which
guarantees a republican form of government was designed, he believed, to
meet just such an emergency as had arisen. Though this conservative
suggestion was not at first received with much favor, it continued
gradually to win adherents until its propriety was universally
recognized.[170] By thus proceeding along constitutional lines a State
government in all its branches was soon established in every county not
occupied by an armed foe.
The Legislature of the restored State assembled, July 2, at Wheeling and
assumed the full exercise of its powers. Two United States Senators,
Waitman T. Willey, whose fidelity many considered doubtful, and John S.
Carlile, an able, eloquent and then a trusted leader, were elected, July
9; the former to fill the vacancy occasioned by the withdrawal of James
M. Mason, the latter to succeed Robert M. T. Hunter, who also had
abdicated his seat in Congress. Both were admitted, though not without a
vigorous protest from the minority, to seats at the first session of the
Thirty-seventh Congress, which met on July 4, 1861.
Their certificates were presented, July 13, by Andrew Johnson. Senator
Bayard entered a protest. Their admission, he said, would be a
recognition of an organization that was not the regular government of
the Commonwealth. Mr. Letcher was still Governor of Virginia, his term
not having expired. The Senate had no authority to create a new State
out of a part of an existing one. He then moved to refer their
credentials to the Committee on the Judiciary. His colleague, Mr.
Saulsbury, objected, that Mason and Hunter were not expelled until July
11, whereas the claimants were appointed two days previously, at a time
when no vacancies had occurred. To this Senator Johnson replied that the
vacancies did in fact exist at the time of their election, July 9, and
that the expulsion of Mason and Hunter was not merely a declaration that
vacancies existed, but their seats were regarded as filled, and the
occupants expelled from the floor of the Senate.
Mr. Bayard denied that, even if Mason and Hunter were guilty of the
alleged crimes, there was any power in either the Governor or
Legislature to terminate their appointments; they might die, they could
be removed by expulsion, but vacancies could not be anticipated by the
Legislature of Virginia. The name of Mr. Pierpont could convey no
authority to their credentials. On the question of reference five
Senators voted in the affirmative, thirty-five in the negative. The oath
was therefore administered and they took their seats, July 13, at the
special session which began on the 4th.[171]
A resolution was passed by the House of Delegates of the reorganized
government instructing the Senators and requesting their Representatives
in Congress to vote the necessary appropriation of men and money for a
vigorous prosecution of the war, and to oppose all compromise. A stay
law was also enacted by the Legislature, and a bill passed which
authorized the Governor to organize a patrol in such counties as might
require it; two hundred thousand dollars were appropriated for military
purposes.
On August 6, 1861, the Wheeling convention reassembled. Hitherto in all
its proceedings relative to a reorganization there had been great
unanimity, but when the delegates returned they were conscious of a
strong popular sentiment in favor of erecting a new State, a subject
that had been introduced, though not much discussed, before adjournment.
This determination among their constituents seriously troubled many of
the members. Political aspirations had been awakened; many of them had
enjoyed the benefits of the humbler offices under the mother State; the
Union forces, it was confidently expected, would soon crush the
insurrection in Virginia, and the reorganized government, with
themselves at its head, would be acquiesced in by their recent
oppressors. To their ambition this hope was far more flattering than the
prospect of administering the affairs of a comparatively small State on
the western frontier of the Old Dominion. Then, too, the idea of
dismemberment was certain to wound Virginia State pride. Moreover, the
movement to form an independent commonwealth, when the reorganized
government itself had been scarcely recognized, would look premature.
Sentiments of this nature had begun to possess the minds of many
delegates about the time of their return.
In compliance with what appeared to be a popular demand, however, these
considerations were disregarded, and the convention by a vote of 50 to
28 passed an ordinance authorizing the formation out of the Commonwealth
of Virginia of a new State to be called Kanawha, which was to embrace
thirty-nine counties between the Alleghanies and the Ohio, provided the
people thereof, at an election to be held on October 24, should express
themselves in favor of such a measure; on certain prescribed conditions
other contiguous counties could be annexed. At the election which was to
decide this important question delegates to a constitutional convention
were also to be chosen, and, if separation was approved by the people,
these representatives were to assemble at Wheeling on November 26 and
organize themselves into a convention. Any constitution which they might
adopt was to be submitted to the qualified electors of the counties
concerned. The new commonwealth was to assume a just proportion of
Virginia’s public debt as it existed prior to January 1, 1861; private
rights derived from her laws were to be valid under the proposed State,
and were to be determined by the laws then existing in Virginia.[172]
The convention, as previously noted, reassembled on August 6. Three days
later one A. F. Ritchie, a member from Marion County, forwarded to
Attorney-General Bates at Washington a letter which requested and
received an immediate reply. Mr. Ritchie published the response, of
which this is the important part:
The formation of a new State out of Western Virginia is an original,
independent act of _revolution_. I do not deny the power of
revolution (I do not call it right, for it is never prescribed; it
exists in force only, and has and can have no law but the will of
the revolutionists). Any attempt to carry it out involves a plain
breach of _both the constitutions_—of Virginia and of the Nation.
And hence it is plain that you cannot take such a course without
weakening, if not destroying, your claims upon the sympathy and
support of the General Government, and without disconcerting the
plan already adopted by both Virginia and the General Government for
the reorganization of the revolted States and the restoration of the
integrity of the Union.
That plan I understand to be this: When a State, by its perverted
functionaries, has declared itself out of the Union, we avail
ourselves of all the sound and loyal elements of the State—all who
own allegiance to and claim protection of the Constitution—to form a
State government as nearly as may be upon the former model, and
claiming to be the very State which has been in part overthrown by
the successful rebellion. In this way we establish a constitutional
nucleus around which all the shattered elements of the commonwealth
may meet and combine, and thus restore the old State in its original
integrity.
This, I verily thought, was the plan adopted at Wheeling, and
recognized and acted upon by the General Government here. Your
convention annulled the revolutionary proceedings at Richmond, both
in the Convention and the General Assembly, and your new Governor
formally demanded of the President the fulfillment of the
constitutional guaranty in favor of Virginia—Virginia as known to
our fathers and to us. The President admitted the obligation, and
promised his best efforts to fulfill it. And the Senate admitted
your Senators, not as representing a new and nameless State, now for
the first time heard of in our history, but as representing “the
good old commonwealth.”
Must all this be undone, and a new and hazardous experiment be
ventured upon, at the moment when dangers and difficulties are
thickening around us? I hope not.... I had rejoiced in the movement
in Western Virginia, as a legal, constitutional, and safe refuge
from revolution and anarchy; as at once an example and fit
instrument for the restoration of all the revolted States.
I have not time now to discuss the subject in its various bearings.
What I have written is written with a running pen and will need your
charitable criticism.
If I had time to think, I could give persuasive reasons for
declining the attempt to create a new State at this perilous time.
At another time I might be willing to go fully into the question,
but now I can say no more.[173]
Mr. Ritchie, who had opposed a dismemberment of the old Commonwealth,
was anxious, no doubt, to justify his vote by the endorsement of an
eminent public character, and it is not improbable that before finally
determining his action in so important a matter he was desirous of the
opinion of some member of the Administration. Mr. Bates’s communication
is dated the 12th; the convention did not adjourn till the 25th of
August. At any time prior to January 1, 1862, it was subject to be
reassembled by its president or by the Governor.
The election of October 24, by a vote of 18,408 to 781, decided in favor
of a division of the Commonwealth.[174] At the same time fifty-three
delegates, representing forty-one counties, were chosen to frame a
constitution for the proposed State. Of this convention John Hall was
elected president and Ellery R. Hall secretary. The task before it, by
no means an easy one, was to draft a fundamental law that would secure
the approval of the people of western Virginia, of the Legislature of
the restored State and of Congress. After a session of nearly three
months it adjourned, February 18, 1862. Commissioners to convoke this
body, should its work be recognized by Congress, had first been
appointed. On December 3 preceding the name of the new State was changed
to West Virginia.
In the convention were many members who desired silence on the subject
of slavery; others saw clearly that to ignore the cause of their present
troubles would ensure a rejection of their work by Congress. This
element felt assured that the temper of the national Legislature would
not indulge the slave power by giving it two additional Senators besides
an increase of strength in the Electoral College. There was also a
sentiment which desired a postponement of the disturbing question until
all others had first been determined. The friends of gradual
emancipation were warned by leading Republicans in Congress that the
constitution would not be recognized without a satisfactory provision on
this subject. The “peculiar institution,” however, still possessed
influence enough to defeat such a purpose, and the convention adjourned
without inserting any expression concerning slavery. Still, the friends
of emancipation did not despair. Mr. Parker, one of these, caused to be
printed in Ohio instructions to their assemblymen to make the following
provision a part of their constitution if the speedy admission of the
new State into the Union should appear to require it: “All children born
of slave mothers in this State, after the constitution goes into
operation, shall be free, males at the age of twenty-eight years, and
females at the age of eighteen years, and the children of such females
to be free at birth.”[175]
This unauthorized action of Mr. Parker, in connection with appeals
through the newspapers, was not without effect. At their county-seat the
citizens of Upshur passed, among other resolutions, the following: “That
we, the citizens of Upshur County, do endorse and accept the policy
recommended by the present Chief Magistrate of the United States,
(Abraham Lincoln) in his message of the 6th of March, 1862, to Congress,
in regard to the emancipation of the slaves of the border States, as the
policy that should be adopted by the people of West Virginia; and we do
now pledge ourselves to advocate, defend and carry out the said policy,
as the most promotive of our liberty, safety and prosperity in the
Union.”[176] Another resolution, adopted on this occasion, declared that
the meeting expected the convention would have given the people an
opportunity of expressing their sentiments on slavery in the proposed
State. The convention, they complained, did not reflect the popular
will.
The Union men and the loyal press of other counties followed the example
of Upshur by approving the measure or copying the “Instructions.” Thus
at the time of voting on the constitution an informal poll on slavery
was obtained in twenty counties.
A faction in the convention proposed to annex the Shenandoah Valley with
its large negro population; the success of such a plan, it was well
understood, would ensure a rejection of the new State by Congress. To
anticipate somewhat the events presently to be narrated it may be
remarked at this point that the adversaries of the measure in Washington
employed precisely the same tactics to defeat the movement for erecting
an independent State.
The new establishment under Pierpont was regarded as representing the
old Commonwealth. On December 2, 1861, the reorganized Legislature again
assembled. The Governor recommended a repeal of the stay laws and
confiscation of the property of secessionists. He congratulated the
people that they had contributed their full quota, about 6,000 men, to
the Union army.
The adversaries of slavery endeavored to obtain the consent of the
restored Legislature to the condition that the gradual emancipation
clause should become a part of the constitution as soon as ratified by
the people. If Congress at its present session would give its consent
and admit the new State on the same condition, the people, they
declared, could be trusted to ratify afterward.
An election held April 3, 1862, gave, including the soldiers’ vote,
28,321 for and 572 against the constitution, no returns being received
from ten counties.[177] The vote for gradual emancipation, where an
expression was had, was almost equal to that given for the constitution,
both being nearly unanimous. The former received 6,052 for and 610
against it. How far this informal expression of opinion influenced
Congress will presently be noticed.
At an extra session of the Legislature, convoked by Governor Pierpont,
an act, in almost the identical language of that assenting to the
formation of Kentucky, was passed, May 13, 1862, giving consent to the
erection within the jurisdiction of Virginia of a new State to include
forty-eight named counties; the second section of this act provided that
Berkeley, Jefferson and Frederic counties could be annexed whenever a
majority of their votes, at an election to be held for that purpose,
should ratify the constitution. The act, together with a certified
original of the constitution, was to be transmitted to their Senators
and Representatives in Washington, who were requested to use their
endeavors to obtain the consent of Congress to the admission of West
Virginia into the Union.
On June 23, 1862, Mr. Wade, from the Committee on Territories, reported
to the United States Senate a bill for the admission of West Virginia
into the Union, and three days later requested its consideration. It
stipulated, among other things, that “the convention thereinafter
provided for shall, in the constitution to be framed by it, make
provision that from and after the fourth day of July, 1863, the children
of all slaves born within the limits of the State shall be free”; it
also allotted to the new Commonwealth as many Representatives in
Congress as her population would justify under the apportionment then
existing.
Charles Sumner observed that the former was the imposition of a
condition which proposed to recognize the existence of slavery during
that generation. “Short as life may be,” he declared, “it is too long
for slavery.” By the admission of West Virginia a new slave State would
be added; he moved, therefore, to substitute for this requirement the
Jeffersonian interdict that “within the limits of said State there shall
be neither slavery nor involuntary servitude, otherwise than in
punishment of crime whereof the party shall be duly convicted.”
Mr. Hale justly remarked that after consenting to the admission of so
many States with pro-slavery constitutions it would be a singular fact
if the first that ever applied with a provision for prospective
emancipation should be rejected.
Senator Collamer believed that if West Virginia was to enter on a
footing of perfect equality with other members of the Union she should,
like them, have the right to regulate domestic questions, including
slavery, in her own way. The condition imposed by the bill denied her
that right.
Mr. Wade disliked the proposition as it stood, because it was very
objectionable to him “to say that a man born on the 4th day of July,
1863, shall be free, and one born the day before shall be forever a
slave.” “I should much prefer,” he added, “to have it graduated so that
all born after the adoption of this constitution shall be free, and that
all between certain ages shall be free at a certain period.” At this
point Sumner’s amendment was lost by a vote of 24 to 11.
Mr. Carlile, of Virginia, who was foremost in organizing resistance to
secession, had from the beginning assumed the appearance of a friend,
but, after giving direction to the movement for separation, acted as an
adversary to the new State; he opposed all conditions on its admission
and expressed a preference that it be permitted to enter on the
constitution submitted by its people. He would never “consent to have
the organic law of a State framed for its people by the Congress of the
United States.” There were 47,000 voters in the counties to be embraced
within the proposed State; of that number only about 19,000 had voted on
the constitution. At the last moment he delivered with his usual
eloquence a strong argument against admission. An amendment which he
submitted would have the effect certainly to postpone, perhaps
altogether to defeat, the measure in the Senate. Failing to secure its
adoption, he urged a postponement till December following; this motion,
however, was voted down.
So surprised were his associates at this unexpected opposition that they
inquired pointedly why these belated arguments had not been presented to
the Committee on Territories when the measure was before them. Mr. Wade,
its chairman, was especially severe in his condemnation of Carlile’s
extraordinary course, for it was the reasoning of the Virginia Senator
that had won their support; he had searched the precedents and submitted
cheerfully to all the labors imposed by the Committee. Now by his
opposition he brought everything to a stand-still.
His colleague, Mr. Willey, who had been converted in a rather advanced
stage of the movement, declared that it was not the desire to be free
from that part of the Commonwealth in rebellion that was responsible for
the present attitude of western Virginia; the insurrection only
precipitated the attempt to settle a controversy which was older than
he. To enforce his remarks he added that great numbers of her citizens
had determined to fix their abodes elsewhere unless West Virginia became
an independent State. During this discussion the Senate had before it
the constitution framed by the convention which met November 26, 1861,
in the city of Wheeling.
After a vigorous address by Benjamin F. Wade, who had recently
investigated the subject, and whose ardor had been aroused by a
deputation of West Virginians then in Washington, the bill by a vote of
23 to 17 passed the Senate, July 14, 1862.[178]
By Mr. Brown, of Virginia, a similar measure had already been introduced
into the House on June 25. It was read twice and referred to the
Committee on Territories.[179] When called up on July 16 succeeding it
was agreed to postpone consideration of the bill until the regular
session in December,[180] and on the 9th of that month, when
Representative Bingham asked that it be put on its passage, discussion
of the subject was resumed.
Representative Conway said that if the application of West Virginia came
in the proper manner he would be happy to vote for its admission; he
regretted, however, that at the beginning of the rebellion a territorial
government had not been organized there; Congress could then have passed
an enabling act, and the State could be received in a manner to admit of
no dispute. The question turned, he declared, on whether the State of
Virginia, of which a Mr. Pierpont was Governor, was the lawful State.
This he denied. A number of persons without authority met at Wheeling
and organized a government. This establishment the President had
recognized; one branch of Congress by admitting its Senators had also
conceded its legality. These precedents, however, should not be binding
on the House. Neither mobs nor mass-meetings, he asserted, make laws
under our system, and such bodies had no authority to appoint Mr.
Pierpont.
The President intended, Mr. Conway believed, to form similar
organizations in all the seceded States. “A policy seems about to be
inaugurated,” he added, “looking to an assumption of State powers by a
few individuals, wherever a military or other encampment can be effected
in any of the rebellious districts. The utter and flagrant
unconstitutionality of this scheme—I may say, its radically
revolutionary character—ought to expose it to the reprobation of every
loyal citizen and every member of this House. It aims at an utter
subversion of our constitutional system. Its effect would be to
consolidate all the powers of the Government in the hands of the
Executive. With the admission of this new State, the President will have
substantially _created_ four Senators—two for Virginia and two for West
Virginia.” In referring to an extension of this system he declared that
the President and a few friends could exercise Federal authority in all
those States. “The true policy of this Government, therefore, with
regard to the seceded States, is to hold them as common territory
wherever and whenever our arms are extended over them. This obviates the
terrible dangers which I have alluded to, and is in harmony with the
highest considerations of public utility, as well as with sound legal
principles.”[181]
Mr. Conway directed his criticisms against the President because he
believed the Executive was first to recognize the new government. The
action of the Senate was based upon this precedent, it being assumed
that recognition was an Executive function.
Mr. Brown, who introduced the bill at the preceding session, related
concisely the essential facts already placed before the reader. He
reminded Representative Conway that, though a State could not commit
treason, or any other crime, the officials of government could do so;
that the legislative powers, being incapable of annihilation, returned
to the people; that the spontaneous assembly at Wheeling merely
organized and proposed a plan by which regular elections were to be held
to fill vacancies caused by the withdrawal of disloyal representatives.
A day was fixed, and wherever throughout the State loyal citizens chose
to hold an election they could do so. The body thus elected assumed the
legislative functions of the people.
In answer to an inquiry he replied that about five counties outside of
West Virginia were represented in the Legislature which consented to the
erection of the new State, and all the counties in the State were
expressly invited to send representatives to the General Assembly. If
they were loyal they should have coöperated; if not, they should have no
voice in either the State Legislature or Congress. He referred in his
remarks to a telegram which he had that morning received from Wheeling.
It contained a resolution passed by the Assembly asking the House of
Representatives to approve the bill for the admission of West Virginia,
which had been favorably acted upon by the Senate at the preceding
session.
“It has been asserted,” he said in conclusion, “and understood in some
quarters, that the organization of the government at Wheeling was for
the purpose of forming a new State. I am prepared to say that when the
convention originally met in Wheeling, although there were a few
radicals there who wanted to form a new State without reinstating the
old State of Virginia, we voted them down, and commenced the exercise of
our original rights as freemen to build up the loyal government of
Virginia; and although we designed eventually to ask for this
separation, and it was what we anxiously desired, yet we determined to
be a law-abiding people, and ask for what we desired through the forms
of law.”[182]
Representative Colfax in giving the reasons which should govern his vote
stated that the restored government had been recognized by the Senate,
by the President as well as other executive officers, and that the
House, by admitting Mr. Segar, elected pursuant to a proclamation of
Governor Pierpont, had also recognized the reorganized State. Even the
political party in opposition voted for that member’s admission. He also
remarked that the new State came knocking at the door for admission with
the tiara of freedom on her brow.[183]
Mr. Olin, who opposed the bill at the preceding session, said: “I shall
vote for it now with reluctance. I shall vote for it mainly upon the
ground that the General Government, whether wisely or unwisely I will
not undertake to say, has encouraged this movement to create a division
of the State of Virginia.”[184] The people of West Virginia, with their
experience of the evils which slavery brought on them, should not have
permitted that institution to exist for an hour in their new government.
For this deficiency, however, the bill provided a partial remedy.
Crittenden observed that it was the party applying for admission that
gave its consent to a division of the State.[185] To this objection
Representative Blair replied that there were counties outside of West
Virginia which had assented to dismemberment. Other members, who had
hitherto been hostile, now consented to support the measure from a
conviction that it would weaken rebellion.
Representative Dawes said that the primary elections which sent
delegates to the Wheeling convention discussed not a reorganization of
the Virginia government, but the formation of an independent State in
western Virginia. To accomplish that, he said, the only way was to
restore the government of the entire Commonwealth. That government then
had two things to do: to set up a new State within itself and secondly
to give its consent thereto. This suggestion, he understood, emanated
from Washington.[186]
In reference to the admission, Thaddeus Stevens said:
I do not desire to be understood as being deluded by the idea that
we are admitting this State in pursuance of any provisions of the
Constitution. I find no such provision that justifies it, and the
argument in favor of the constitutionality of it is one got up by
those who either honestly entertain, I think, an erroneous opinion,
or who desire to justify, by a forced construction, an act which
they have predetermined to do.
* * * * *
Now, to say that the Legislature which called this seceding
convention was not the Legislature of Virginia, is asserting that
the Legislature chosen by a vast majority of the people of a State
is not the Legislature of that State. That is a doctrine which I can
never assent to. I admit that the Legislature were disloyal, but
they were still the disloyal and traitorous Legislature of the State
of Virginia; and the State, as a mere State, was bound by their
acts. Not so individuals. They are responsible to the General
Government, and are responsible whether the State decrees treason or
not. That being the Legislature of Virginia, Governor Letcher,
elected by a majority of the votes of the people, is the Governor of
Virginia—a traitor in rebellion, but a traitorous governor of a
traitorous State. Now, then, how has that State ever given its
consent to this division? A highly respectable but very small number
of the citizens of Virginia—the people of West Virginia—assembled
together, disapproved of the acts of the State of Virginia, and with
the utmost self-complacency called themselves Virginia.
* * * * *
I hold that none of the States now in rebellion are entitled to the
protection of the Constitution, and I am grieved when I hear those
high in authority sometimes talking of the constitutional
difficulties about enforcing measures against this belligerent
power, and the next moment disregarding every vestige and semblance
of the Constitution by acts which alone are arbitrary. I hope I do
not differ with the Executive in the views which I advocate. But I
see the Executive one day saying “you shall not take the property of
rebels to pay the debts which the rebels have brought upon the
Northern States.” Why? Because the Constitution is in the way. And
the next day I see him appointing a military governor of Virginia, a
military governor of Tennessee, and some other places. Where does he
find anything in the Constitution to warrant that?
If he must look there alone for authority, then all these acts are
flagrant usurpations, deserving the condemnation of the community.
He must agree with me or else his acts are as absurd as they are
unlawful; for I see him here and there ordering elections for
members of Congress wherever he finds a little collection of three
or four consecutive plantations in the rebel States, in order that
men may be sent in here to control the proceedings of this Congress,
just as we sanctioned the election held by a few people at a little
watering place at Fortress Monroe, by which we have here the very
respectable and estimable member from that locality with us. It was
upon the same principle.
... I say, then, that we may admit West Virginia as a new State, not
by virtue of any provision of the Constitution, but under our
absolute power which the laws of war give us in the circumstances in
which we are placed. I shall vote for this bill upon that theory,
and upon that alone; for I will not stultify myself by supposing
that we have any warrant in the Constitution for this proceeding.
The Union, he declared, could never be restored as it was. His consent
would never be given to restore it with a constitutional provision
protecting slavery. An additional reason for giving his vote in favor of
the bill was that there was a provision which would make West Virginia a
free State.[187]
“No right of persons, no right of property,” said Mr. Noell, “no social
or domestic affairs, could be regulated or controlled by the people of
western Virginia, under the circumstances in which they were placed,
without recognizing the ordinance of secession, and acting as a State
within the Southern Confederacy.”[188] This showed both the necessity of
reorganizing the government of Virginia and the recognition by Federal
authorities of the establishment so constituted.
Mr. Segar declared that eleven of the forty-eight counties to comprise
the new State had not participated in its establishment, being
represented neither in the reorganized Legislature nor the Wheeling
convention; three others were unrepresented both in the House of
Delegates and the conventions; ten cast no vote on the constitution and
three had interests, social and commercial, which bound them up with the
East. Then, too, the people of West Virginia made a fundamental law
recognizing slavery; an anti-slavery constitution was to be imposed on
them as a condition of admission.[189]
An able argument by Representative Bingham, of Ohio, who had charge of
the bill, concluded the debate on December 10, 1862, when it passed by
96 yeas to 55 nays.[190]
With the President rested the fate of this important measure; if he
vetoed it there would, probably, not be found a two thirds majority in
its support. Many members, as will be seen from the preceding abridgment
of the debates, yielded only a reluctant support.
On December 23, 1862, Mr. Lincoln sent to his constitutional advisers
the following note:
=Gentlemen of the Cabinet=:
A bill for an act entitled “An act for the admission of the State of
West Virginia into the Union and for other purposes” has passed the
House of Representatives and the Senate, and has been duly presented
to me for my action.
I respectfully ask of each of you an opinion in writing on the
following questions, to wit:
1st. Is the said act constitutional?
2d. Is the said act expedient?[191]
To this request six members of the Cabinet responded by submitting their
written opinions. Three—Seward, Stanton and Chase—answered both
questions in the affirmative. Bates, Blair and Welles replied in the
negative; the remaining place in the Cabinet was vacant owing to the
resignation of Caleb B. Smith, Secretary of the Interior, who had been
raised to the Bench in Indiana. His successor had not yet been
appointed.
Upon the constitutional point Mr. Seward said: “It seems to me that the
political body which has given consent in this case is really and
incontestably the State of Virginia. So long as the United States do not
recognize the secession, departure, or separation of one of the States,
that State must be deemed as existing and having a constitutional place
within the Union, whatever may be at any moment exactly its
revolutionary condition. A State thus situated cannot be deemed to be
divided into two or more States merely by any revolutionary proceeding
which may have occurred, because there cannot be, constitutionally, two
or more States of Virginia.... The newly organized State of Virginia is
therefore, at this moment, by the express consent of the United States,
invested with all the rights of the State of Virginia, and charged with
all the powers, privileges, and dignity of that State. If the United
States allow to that organization any of these rights, powers, and
privileges, it must be allowed to possess and enjoy them all. If it be a
State competent to be represented in Congress and bound to pay taxes, it
is a State competent to give the required consent of the State to the
formation and erection of the new State of West Virginia within the
jurisdiction of Virginia.”
“Upon the question of expediency,” he wrote, “I am determined by two
considerations. First. The people of Western Virginia will be safer from
molestation for their loyalty, because better able to protect and defend
themselves as a new and separate State than they would be if left to
demoralizing uncertainty upon the question whether, in the progress of
the war, they may not be again reabsorbed in the State of Virginia, and
subjected to severities as a punishment for their present devotion to
the Union. The first duty of the United States is protection to loyalty
wherever it is found. Second. I am of opinion that the harmony and peace
of the Union will be promoted by allowing the new State to be formed and
erected, which will assume jurisdiction over that part of the valley of
the Ohio which lies on the south side of the Ohio River, displacing, in
a constitutional and lawful manner, the jurisdiction heretofore
exercised there by a political power concentrated at the head of the
James River.”[192]
Mr. Chase, in discussing the constitutional question, said in part: “The
Madison Papers clearly show that the consent of the Legislature of the
original State was the only consent required to the erection and
formation of a new State within its jurisdiction. That consent having
been given, the consent of the new State, if required, is proved by her
application for admission.... The Legislature of Virginia, it may be
admitted, did not contain many members from the eastern counties; it
contained, however, representatives from all counties whose inhabitants
were not either rebels themselves, or dominated by greater numbers of
rebels. It was the only Legislature of the State known to the Union. If
its consent was not valid, no consent could be. If its consent was not
valid, the Constitution, as to the people of West Virginia, has been so
suspended by the rebellion that a most important right under it is
utterly lost.”
Relative to the question of expediency, he writes: “The act is almost
universally regarded as of vital importance to their welfare by the
loyal people most immediately interested, and it has received the
sanction of large majorities in both Houses of Congress. These facts
afford strong presumptions of expediency.... It may be said, indeed,
that the admission of West Virginia will draw after it the necessity of
admitting other States under the consent of extemporized legislatures
assuming to act for whole States, though really representing no
important part of their territory. I think this necessity imaginary.
There is no such legislature, nor is there likely to be. No such
legislature, if extemporized, is likely to receive the recognition of
Congress or the Executive.”[193]
Mr. Stanton responded more briefly than either Secretary Seward or
Secretary Chase, observing, among other things: “I have been unable to
perceive any point on which the act of Congress conflicts with the
Constitution. By the erection of the new State, the geographical
boundary heretofore existing between the free and slave States will be
broken, and the advantage of this upon every point of consideration
surpasses all objections which have occurred to me on the question of
expediency. Many prophetic dangers and evils might be specified, but it
is safe to suppose that those who come after us will be as wise as
ourselves, and if what we deem evils be really such, they will be
avoided. The present good is real and substantial, the future may safely
be left in the care of those whose duty and interest may be involved in
any possible future measures of legislation.”[194]
One or two excerpts from the opinion of Mr. Welles will indicate the
course of his argument in the negative: “Under existing necessities, an
organization of the loyal citizens, or of a portion of them, has been
recognized, and its Senators and Representatives admitted to seats in
Congress. Yet we cannot close our eyes to the fact that the fragment of
the State which, in the revolutionary tumult, has instituted the new
organization, is not possessed of the records, archives, symbols,
traditions, or capital of the Commonwealth. Though calling itself the
State of Virginia, it does not assume the debts and obligations
contracted prior to the existing difficulties. Is this organization,
then, really and in point of fact anything else than a provisional
government for the State? It is composed almost entirely of those loyal
citizens who reside beyond the mountains, and within the prescribed
limits of the proposed new State. In this revolutionary period, there
being no contestants, we are compelled to recognize the organization as
Virginia. Whether that would be the case, and how the question would be
met and disposed of, were the insurrection this day abandoned, need not
now be discussed. Were Virginia, or those parts of it not included in
the proposed new State, invaded and held in temporary subjection by a
foreign enemy instead of the insurgents, the fragment of territory and
population which should successfully repel the enemy and adhere to the
Union would doubtless, during such temporary subjection, be recognized,
and properly recognized, as Virginia. When, however, this loyal fragment
goes farther, and not only declares itself to be Virginia, but proceeds
by its own act to detach itself permanently and forever from the
Commonwealth, and to erect itself into a new State within the
jurisdiction of the State of Virginia, the question arises whether this
proceeding is regular, legal, right, and, in honest good faith,
conformable to, and within the letter and spirit of the Constitution....
Congress may admit new States into the Union; but any attempt to
dismember or divide a State by any forced or unauthorized assumption
would be an inexpedient exercise of doubtful power to the injury of such
State. Were there no question of doubtful constitutionality in the
movement, the time selected for the division of the State is most
inopportune. It is a period of civil commotion, when unity and concerted
action on the part of all loyal citizens and authorities should be
directed to a restoration of the Union, and all tendency towards
disintegration and demoralization avoided.”[195]
Mr. Blair, likewise in the negative, added little of importance to what
Secretary Welles had adduced on that side.
The first and rather hastily formed opinion of Attorney-General Bates
has already been given together with an account of the circumstances
attending its publication; upon longer reflection he did not greatly
change the ground of his original convictions and in an elaborate
discussion still reasoned in the negative.[196]
Between these evenly balanced and conflicting opinions of his advisers
Mr. Lincoln argued as follows:
The consent of the legislature of Virginia is constitutionally
necessary to the bill for the admission of West Virginia becoming a
law. A body claiming to be such legislature has given its consent.
We cannot well deny that it is such, unless we do so upon the
outside knowledge that the body was chosen at elections in which a
majority of the qualified voters of Virginia did not participate.
But it is a universal practice in the popular elections in all these
States to give no legal consideration whatever to those who do not
choose to vote, as against the effect of the votes of those who do
choose to vote. Hence it is not the qualified voters, but the
qualified voters who choose to vote that constitute the political
power of the State. Much less than to non-voters should any
consideration be given to those who did not vote in this case,
because it is also matter of outside knowledge that they were not
merely neglectful of their rights under and duty to this government,
but were also engaged in open rebellion against it. Doubtless among
these non-voters were some Union men whose voices were smothered by
the more numerous secessionists; but we know too little of their
number to assign them any appreciable value. Can this government
stand, if it indulges constitutional constructions by which men in
open rebellion against it are to be accounted, man for man, the
equals of those who maintain their loyalty to it? Are they to be
accounted even better citizens, and more worthy of consideration,
than those who merely neglect to vote? If so, their treason against
the Constitution enhances their constitutional value. Without
braving these absurd conclusions, we cannot deny that the body which
consents to the admission of West Virginia is the legislature of
Virginia. I do not think the plural form of the words “legislatures”
and “States” in the phrase of the Constitution “without the consent
of the legislatures of the States concerned,” etc., has any
reference to the new State concerned. That plural form sprang from
the contemplation of two or more old States contributing to form a
new one. The idea that the new State was in danger of being admitted
without its own consent was not provided against, because it was not
thought of, as I conceive. It is said, the devil takes care of his
own. Much more should a good spirit—the spirit of the Constitution
and the Union—take care of its own. I think it cannot do less and
live.
But is the admission into the Union of West Virginia expedient?
This, in my general view, is more a question for Congress than for
the Executive. Still I do not evade it. More than on anything else,
it depends on whether the admission or rejection of the new State
would, under all the circumstances, tend the more strongly to the
restoration of the national authority throughout the Union. That
which helps most in this direction is the most expedient at this
time. Doubtless those in remaining Virginia would return to the
Union, so to speak, less reluctantly without the division of the old
State than with it; but I think we could not save as much in this
quarter by rejecting the new State, as we should lose by it in West
Virginia. We can scarcely dispense with the aid of West Virginia in
this struggle; much less can we afford to have her against us, in
Congress and in the field. Her brave and good men regard her
admission into the Union as a matter of life and death. They have
been true to the Union under very severe trials. We have so acted as
to justify their hopes, and we cannot fully retain their confidence
and coöperation if we seem to break faith with them. In fact, they
could not do so much for us, if they would. Again, the admission of
the new State turns that much slave soil, to free, and thus is a
certain and irrevocable encroachment upon the cause of the
rebellion. The division of a State is dreaded as a precedent. But a
measure made expedient by a war is no precedent for times of peace.
It is said that the admission of West Virginia is secession, and
tolerated only because it is our secession. Well, if we call it by
that name, there is still difference enough between secession
against the Constitution and secession in favor of the Constitution.
I believe the admission of West Virginia into the Union is
expedient.[197]
The bill passed by the House on the 10th was approved by the President
on the 31st of December, 1862; after naming the forty-eight counties to
constitute the new State the act declares, among other things, that
since the convention framed the constitution for West Virginia its
people had expressed a wish to change section seven of the eleventh
article by inserting the following in its place, _viz._: “The children
of slaves born within the limits of this State after the fourth day of
July, eighteen hundred and sixty-three, shall be free; and that all
slaves within the said State who shall, at the time aforesaid, be under
the age of ten years, shall be free when they arrive at the age of
twenty-one years; and all slaves over ten and under twenty-one years,
shall be free when they arrive at the age of twenty-five years; and no
slave shall be permitted to come into the State for permanent residence
therein.”[198]
The constitution thus amended was unanimously ratified by the
convention, which on a summons of the commissioners reassembled February
18, 1863, and also by the people, to whom it was submitted at an
election held on May 26 following.[199] President Lincoln on April 20
issued a proclamation declaring that the prescribed conditions having
been complied with, the constitution would go into force in sixty days
from that date; the formation of the new State was complete and it
became a member of the Union on the 20th of June, 1863.[200]
Daniel Webster, in an address delivered thirteen years before, at the
laying of the corner-stone of an addition to the Federal Capitol, had
asked: “And ye men of Western Virginia, ... what benefit do you propose
to yourself by disunion? If you ‘secede,’ what do you ‘secede’ from, and
what do you ‘accede’ to? Do you look for the current of the Ohio to
change, and to bring you and your commerce to the tide-waters of the
eastern rivers? What man in his senses can suppose that you would remain
part and parcel of Virginia a month after Virginia should have ceased to
be part and parcel of the Union?”[201] The remarkable prediction of the
great orator was fulfilled; his inspired vision had pierced the future.
The Old Dominion had separated forever along the line of the
Alleghanies.
Before relating the subsequent history of the restored government, it is
proper to notice a few important events in the early career of the new
Commonwealth. On January 31, 1863, an act passed the General Assembly of
Virginia giving consent to the transfer of Berkeley County to the State
of West Virginia. The preamble of this act affirms that its people
desired to be annexed to the proposed State. The question of transfer,
however, was to be decided by a majority of voters at an election to be
held on the fourth Thursday of May. If, however, the polls could not be
safely opened on that day, the Governor was empowered to postpone the
election by proclamation. The commissioners who superintended the
polling were to certify the results to the Executive. On February 4
succeeding another act made it lawful for voters in certain districts
including twenty-three counties to declare, at a general election to be
held on the fourth Thursday of May, whether these specified counties
should be annexed to West Virginia. The consent of the Legislature of
that State was, of course, made a condition of the transfer, after which
the jurisdiction of Virginia over such counties was to cease.
West Virginia statutes of August 5 and November 2, 1863, in words, admit
Berkeley and Jefferson counties, and they have ever since been under her
jurisdiction. When admitted into the Union it was with a provision in
her constitution that she might acquire additional territory; therefore
Congress gave its consent in advance and it was not afterwards
withdrawn. In brief, West Virginia accepted the transfer and it was
authorized by the General Assembly of the Commonwealth of Virginia.[202]
State officers were elected on May 28, when the following unconditional
Union candidates, receiving a vote of about 30,000, were chosen without
opposition: Arthur I. Boreman, Governor; J. E. Boyers, Secretary of
State; Campbell Tarr, Treasurer; Samuel Crane, Auditor; A. B. Caldwell,
Attorney-General; also three judges of a court of appeals.
The inauguration of the new State, which was marked by imposing
ceremonies, took place at Wheeling, the capital, on June 20, 1863. Mr.
Pierpont, the retiring executive of reorganized Virginia, briefly
addressed the assembled citizens and urged them not to forsake the flag;
he then introduced his successor, whom he pronounced “true as steel.”
Governor Boreman in his short speech said that the only terms of peace
were that the rebels should lay down their arms and submit to the
regularly constituted authority of the United States.
The Legislature of West Virginia convened on the same day. Waitman T.
Willey and P. G. Van Winkle were elected United States Senators.[203] In
his first message Governor Boreman recommended to the General Assembly
the immediate passage of laws effectually to extirpate slavery, and also
the enactment of a law that no man should be permitted to vote or to
hold office until he had taken the oath of allegiance.
In the Presidential election of 1864, the first held since the adoption
of the Constitution in which any State deliberately neglected to appoint
electors, 33,680 votes were polled in West Virginia; of this number the
Union ticket received 23,223 and the McClellan electors 10,457.[204]
Elections had also been held in Louisiana and Tennessee by authority of
the governments established there under Mr. Lincoln’s plan of
reconstruction; the Republican majority in Congress, however, denied the
validity of the organizations in the two States last named and refused
to count the votes which they presented. This question will be fully
considered when we come to trace the development of the Congressional
plan. At the regular State election Governor Boreman was chosen without
opposition, receiving 19,098 votes. With the subsequent history of the
new Commonwealth the subject of reconstruction is not much concerned.
By the formation of an independent Commonwealth the counties beyond the
Alleghanies were withdrawn from the jurisdiction of the restored
government, which after the inaugural ceremonies at Wheeling selected
for its capital the city of Alexandria, where it continued till May 25,
1865, to exercise its functions in those parts of the Old Dominion
within the lines of the Union army. A State government was promptly
organized by the election of a legislature and of executive officers. In
this establishment the loyal eastern counties participated. Mr. Pierpont
was elected Governor for the term of three years beginning January 1,
1864. A Lieutenant-Governor, a Secretary of State, a Treasurer, an
Auditor, an Adjutant-General and an Attorney-General were also chosen.
The Governor in his message to the Assembly mentioned slavery as doomed,
and recommended the calling of a convention so to amend the State
constitution as to abolish the institution forever. In compliance with
this suggestion the Legislature, on December 21, 1863, passed an act
directing a convention to be held at Alexandria on the 13th of February
succeeding to amend the constitution and prohibit slavery in the
counties of Accomac, Northampton, Princess Ann, Elizabeth City and York
(including the cities of Norfolk and Portsmouth). These with Berkeley
County had been excepted from the operation of the Emancipation
Proclamation.
None but loyal citizens who had not assisted the insurgents since
January 1, 1863, were allowed to take part, and those whose right to
vote might be challenged were required to swear support of the
Constitution and to declare that they had not in any way given aid or
comfort to the enemy.
The convention, consisting of sixteen members, assembled in the new
capital at the appointed time and remained in session till April 11
following, when a constitution was adopted.[205] Various amendments,
relating chiefly to the regulation of the elective franchise and to the
abolition of slavery, were discussed and agreed upon. The work of this
miniature convention was ordered to be proclaimed without a submission
to the people. It was not, however, recognized by Congress, though the
civil government which authorized its formation was permitted to
continue under it, provisionally only, and in all respects subject to
the paramount authority of the United States at any time to abolish,
modify, or supersede.
Though the bill for the admission of West Virginia passed both Houses,
yet Congress was by no means unanimous in giving its consent to that
measure. In the debates, of which a synopsis has been given, the
hostility of Thaddeus Stevens and other influential members is scarcely
concealed. This opposition to executive policy slowly gathered strength,
and by 1863 had become formidable enough to defeat the admission of
Representatives from the Alexandria government. The Senators, however,
remained, Lemuel J. Bowden till his death, January 2, 1864, when his
successor was refused admission, and John S. Carlile till the expiration
of his term in 1865.
On the assembling of the 38th Congress, which commenced its first
session December 7, 1863, Joseph E. Segar, Lucius H. Chandler and
Benjamin M. Kitchen appeared as Representatives from Virginia. On May 17
succeeding Mr. Dawes from the Committee of Elections reported a
resolution to the effect that Joseph E. Segar, from the First District
of Virginia, was not entitled to a seat in that Congress. The case of
Mr. Chandler, regarded as precisely similar, was considered at the same
time.
The district which Mr. Segar claimed to represent was composed of twenty
counties; of these, Chairman Dawes asserted, only four participated in
the election. Polling places were not opened in any other part of the
district, the Confederate authorities being in possession of the
remaining counties. As there could be no free exercise of the franchise
in this situation Mr. Segar, it was contended, was not properly chosen,
and, therefore, was not entitled to a seat. The vote cast, though not
accurately ascertained, was estimated at 1,677, of which the claimant
received 1,300. Because of his loyalty and the sacrifices he had made,
the Committee regretted the necessity of deciding against him.
Mr. Segar, speaking in his own behalf, reminded the House that in a
preceding election, when he received 559 out of 1,018 votes polled in
three counties, he was admitted after a delay of seven or eight weeks;
but when he was sent by a larger constituency and came as the choice of
four counties he was informed that he had no right to a seat, and some
of his colleagues who favored his admission in 1862 voted to exclude
him. The Committee’s report, he asserted, admitted the existence of such
a State as Virginia. He asked Chairman Dawes a rather embarrassing
question when he inquired how a State could have two Senators and no
Representative in Congress. In conclusion he pronounced restored State
organization and gradual accretion to be the best method of
reconstruction.
Concerning the title of Mr. Chandler, from the Second Congressional
District, Chairman Dawes stated that of the 779 votes polled in the
election 778 were cast for the claimant. For the same reason as in the
case of Mr. Segar only a small part of that District was free to
participate in the election, and nearly all the votes were polled in the
city of Norfolk. The committee reported against his admission on the
same ground taken in Mr. Segar’s case.
Chandler, who was permitted to state his case to the House, cited a
resolution introduced by his former school-mate, Owen Lovejoy, the
well-known abolitionist, authorizing the names of the three Virginia
claimants to be enrolled as Representatives. That resolution, however,
was tabled and their credentials referred to the Committee of Elections.
In 1860 the Union vote in his District was only 6,712; of that number
2,900, he said, were in Norfolk and Portsmouth; the latter city had cast
more votes against secession than the remainder of his District. Great
numbers of loyal men, however, left there at the beginning of the war.
Electors being under no obligation to vote may allow an election to go
by default when one citizen could return a member to Congress.
Territorially restored Virginia was larger than Delaware and possessed
twice the area of Rhode Island.
The case of Benjamin M. Kitchen, on which the Committee had previously
made an adverse report, differed from those of the other two claimants
in that he had received nearly all of his vote in Berkeley County, which
possessed a sort of wandering character, for it was somewhat uncertain
whether it was under the jurisdiction of the new or the old State. What
action was taken on the Committee’s report does not appear, but it may
be inferred from a facetious remark of one member who observed that,
like Segar and Chandler, Kitchen had been privileged to retire to
private life. The two former were refused admission by the decided vote
of 94 to 23.
Besides endeavoring to win back the wavering, Governor Pierpont was
occupied in taking measures for the relief of the distressed. In the
vicinity of Norfolk and Portsmouth there was a large number of destitute
persons whose natural supporters were still following the declining
fortunes of the Confederacy or had been killed in its service. While it
was universally agreed that their necessities should be relieved, the
military and civil authorities were in conflict as to the mode of
providing for them. The President in his efforts to establish amicable
relations between the officers of the army and those of the State
invoked the assistance of the Governor. As the restored Commonwealth
could not be consistently recognized while its capital was in a state of
blockade the President by proclamation, September 24, 1863, declared
that the interdiction of trade with the port of Alexandria had ceased.
General Butler with headquarters at Fortress Monroe took command of the
Department of Virginia and North Carolina November 2, 1863. His
predecessors, he asserted, had endeavored to recruit a regiment of
Virginians; but after several months of energetic trial their efforts
were abandoned. As eastern Virginia claimed to be a loyal and fully
organized State, Butler renewed the attempt, whereupon Governor Pierpont
protested vigorously. One and a half companies were all the recruits
that the Commonwealth would furnish, and these, Butler asserts, were
employed to defend lighthouses and protect Union inhabitants from
outrages at the hands of their disloyal neighbors.[206] This experience,
it may be supposed, did not tend to raise the Alexandria government in
the esteem of the Department Commander. We find accordingly that
differences soon sprang up between the civil and military authorities.
An attempt to regulate the liquor traffic in Norfolk and vicinity was
the occasion of an open rupture. Civil officers continued to collect the
payments imposed by law on those engaged in the business; the military
power, to keep the traffic under better control, undertook to give to a
few firms a monopoly of the importation. In this situation many small
retailers refused to pay their licenses and were indicted in the local
courts. To foil this purpose, General Shepley issued, June 22, 1864, an
order providing that “on the day of the ensuing municipal election in
the city of Norfolk a poll will be opened at the several places of
voting, and separate ballot-boxes will be kept open during the hours of
voting, in which voters may deposit their ballots, ‘yes’ or ‘no,’ upon
the following question: Those in favor of continuing the present form of
municipal government during the existence of military occupation will
vote ‘yes.’ Those opposed to it will vote ‘no.’”
Governor Pierpont resented this action and promptly issued a
proclamation protesting against it as a revolutionary proceeding in
violation of the Federal Constitution, adding, “No loyal citizen,
therefore, is expected to vote on the proposed question.” In a vigorous
pamphlet discussing the “abuses of military power” he repeated his
criticism.
Butler at this point took up the cudgels for his subordinate and in a
general order, dated June 30, 1864, discussed the incident at some
length. Pierpont was alluded to as “a person who calls himself
Governor,” and as one “pretending to be the head of the restored
government of Virginia, which government is unrecognized by the
Congress, laws, and Constitution of the United States.” The order
further recited that as the loyal citizens of Norfolk had voted against
the further trial of the experiment of municipal government “therefore
it is ordered that all attempts to exercise civil office and power,
under any supposed city election, within the city of Norfolk and its
environs, must cease, and the persons pretending to be elected to civil
offices at the late election, and those heretofore elected to municipal
offices since the rebellion, must no longer attempt to exercise such
functions; and upon any pretense or attempt so to do, the military
commandant at Norfolk will see to it that persons so acting are stayed
and quieted.”
A memorial to Mr. Lincoln enlisted his sympathy and secured for Pierpont
the assistance of Attorney-General Bates, who on July 11 wrote the
President a long official letter setting forth his sense of the serious
military encroachment by General Butler upon civil law and the authority
of Mr. Pierpont as Governor of Virginia. The Department Commander
replied in a communication of forty pages in sharp criticism of the
Alexandria government, which he characterized as a “useless, expensive,
and inefficient thing, unrecognized by Congress, unknown to the
Constitution of the United States, and of such character that there is
no command in the Decalogue against worshiping it, being the likeness of
nothing in the heavens above, the earth beneath, or the waters under the
earth.”
The Attorney-General, who was accused of a design to create a conflict
between the civil and the military power, also came in for a share of
rather violent criticism. In this altercation each party accused the
other of being assisted by only secessionists and traitors.[207]
It was relative to this controversy that Mr. Lincoln, December 21, 1864,
addressed to General Butler the following communication:
On the 9th of August last, I began to write you a letter, the
enclosed being a copy of so much as I then wrote. So far as it goes
it embraces the views I then entertained and still entertain.
A little relaxation of the complaints made to me on the subject,
occurring about that time, the letter was not finished and sent. I
now learn, correctly I suppose, that you have ordered an election,
similar to the one mentioned, to take place on the eastern shore of
Virginia. Let this be suspended at least until conference with me
and obtaining my approval.
[Inclosure.]
=Executive Mansion, Washington=, _August 9, 1864_.
_Major-General Butler_:
Your paper of the —— about Norfolk matters, is received, as also was
your other, on the same general subject, dated, I believe, some time
in February last. This subject has caused considerable trouble,
forcing me to give a good deal of time and reflection to it. I
regret that crimination and recrimination are mingled in it. I
surely need not to assure you that I have no doubt of your loyalty
and devoted patriotism; and I must tell you that I have no less
confidence in those of Governor Pierpont and the Attorney-General.
The former—at first as the loyal governor of all Virginia, including
that which is now West Virginia, in organizing and furnishing
troops, and in all other proper matters—was as earnest, honest, and
efficient to the extent of his means as any other loyal governor.
The inauguration of West Virginia as a new State left to him, as he
assumed, the remainder of the old State; and the insignificance of
the parts which are outside of the rebel lines, and consequently
within his reach, certainly gives a somewhat farcical air to his
dominion, and I suppose he, as well as I, has considered that it can
be useful for little else than as a nucleus to add to. The
Attorney-General needs only to be known to be relieved from all
question as to loyalty and thorough devotion to the national cause,
constantly restraining as he does my tendency to clemency for rebels
and rebel sympathizers. But he is the law-officer of the Government,
and a believer in the virtue of adhering to law.
Coming to the question itself, the military occupancy of Norfolk is
a necessity with us. If you, as department commander, find the
cleansing of the city necessary to prevent pestilence in your army;
street-lights and a fire department necessary to prevent
assassinations and incendiarism among your men and stores; wharfage
necessary to land and ship men and supplies; a large pauperism,
badly conducted at a needlessly large expense to the government; and
find that all these things, or any of them, are not reasonably well
attended to by the civil government, you rightfully may and must
take them into your own hands. But you should do so on your own
avowed judgment of a military necessity, and not seem to admit that
there is no such necessity by taking a vote of the people on the
question.
Nothing justifies the suspending of the civil by the military
authority but military necessity; and of the existence of that
necessity, the military commander, and not a popular vote, is to
decide. And whatever is not within such necessity should be left
undisturbed.
In your paper of February you fairly notified me that you
contemplated taking a popular vote, and, if fault there be, it was
my fault that I did not object then, which I probably should have
done had I studied the subject as closely as I have since done. I
now think you would better place whatever you feel is necessary to
be done on this distinct ground of military necessity, openly
discarding all reliance for what you do on any election. I also
think you should so keep accounts as to show every item of money
received and how expended.
The course here indicated does not touch the case when the military
commander, finding no friendly civil government existing, may, under
sanction or direction of the President, give assistance to the
people to inaugurate one.[208]
On the same general subject the President one week later wrote General
Butler this brief note:
I think you will find that the provost-marshal on the eastern shore
has, as by your authority, issued an order, not for a meeting, but
for an election. The order, printed in due form, was shown to me,
but as I did not retain it, I cannot give you a copy. If the people,
on their own motion, wish to hold a peaceful meeting, I suppose you
need not hinder them.[209]
It has elsewhere been observed that a Legislature representing what
remained of the restored government was chosen at the time of Mr.
Pierpont’s election. This body, however, was but the merest shadow of
the Assembly of that once proud Commonwealth. Seven Delegates responded
to the roll call when the House convened in December, 1863. They
adjourned from day to day and on the 9th of that month organized with
eight members in the popular branch. Precisely how many Senators
composed the upper House does not appear in any notice of their
proceedings accessible to the writer; the aggregate number in both
chambers, however, is said not to have exceeded 16.[210] This estimate
is probably correct; for in the election, February 4, 1864, of a
Secretary of State and a Treasurer the total vote on joint ballot was
only 14.[211]
It is probable that neither Mr. Lincoln nor Governor Pierpont regarded
this organization as anything more than a nucleus around which the loyal
elements might rally. Both Congress and the military authorities,
however, treated it with scant courtesy. It is not matter of surprise,
therefore, that memorials were presented to the United States Senate
petitioning for the substitution of a military for this feeble civil
government. To offset this movement remonstrances from citizens of
Alexandria and from citizens of Loudoun County were offered, January 17,
1865, by Senator Willey, of West Virginia. All the memorials of both
classes were referred to the Committee on Territories.
By Mr. Willey credentials of Hon. Joseph Segar, Senator-elect from
Virginia, were presented, February 17, 1865, to supply the vacancy
caused by the death of Lemuel J. Bowden. Mr. Willey moved that the
credentials be read and placed on the files, and that the oath of office
be administered to Mr. Segar. The credentials were read and immediately
after Mr. Sumner moved that the papers be referred to the Committee on
the Judiciary. Senator Willey opposed the reference. The credentials, he
believed, were proper on their face; they came to the Senate in due form
under the seal of the State of Virginia. Mr. Segar was the accredited
successor of Mr. Bowden, who died while a member of Congress. If Mr.
Bowden was entitled to a seat his successor was likewise entitled if his
credentials were regular and correct.
Mr. Cowan also opposed the reference because he did not think it wise to
abandon the policy hitherto pursued in dealing with loyal minorities in
the rebellious States. He would be sorry, he said, if these States were
repulsed when they were desirous to do all they could to achieve the
very end for which the present tremendous struggle was taking place.
When Mr. Bowden came to take his seat no such objection was made. A
question by Senator Hale developed the fact, however, that Mr. Bowden
presented himself before the vote was taken on the admission of West
Virginia.
Trumbull believed that a reference of the credentials, just as in the
Arkansas case, would bring up the question. Senator Howard, who favored
a reference, thought that the entire question of the right of Virginia
to be represented in Congress should be gone into. He would thank the
committee for a concise account of all the proceedings connected with
the election of Mr. Segar and his colleague. He asked whether a State
like Virginia, in armed rebellion, could have Senators on that floor.
Mr. Saulsbury pointed out the change that had come over the judgment of
the Senate. When Messrs. Willey and Carlile appeared there was, he said,
but a corporal’s guard who opposed their right to seats, because
Virginia was in rebellion, and it was then held by the minority that
Senators should represent the sovereignty of their States. Those who
were then most zealous for the admission of the gentlemen claiming to
represent Virginia had become most vehement in their opposition to the
admission of Mr. Segar.
Senator McDougall believed that to refer the proposition to the
committee would be to bury it, and no resurrection, he said, had been
proclaimed for any such thing. He had his impressions and was as well
prepared to discuss the question then as at any time. Virginia,
according to his understanding of the philosophy of the Constitution,
was a State of the Union. He believed the Senator-elect, by reason of
his credentials, could take the oath, though that was not conclusive of
his right to a seat in the Senate.
Henry Wilson, of Massachusetts, believed that Congress because of its
action for three years was bound to recognize the existence of both the
Governor and Legislature of Virginia. He was disposed, however, to
support the motion of his colleague, Charles Sumner, as well as the
amendment thereto which authorized the committee to inquire into the
election, returns and qualifications in the case of the claimant.
Certain parts of Virginia, exempted by the President’s proclamation,
were not in rebellion. Every square mile additional over which Federal
authority was restored came by the terms of that proclamation into the
same condition.
Mr. Willey asserted that the Legislature sneeringly referred to as “the
Common Council of Alexandria” represented 216,000 loyal people. He
believed that county after county, as fast as they were relieved from
the power of the rebellion, would come to the support of the loyal
nucleus at Alexandria. It would place the Senate, he said, in a singular
position to repulse the claimant while his State was represented by
another Senator [Carlile].
Senator Sherman stated that Mr. Segar’s credentials purported to show
that he had been elected a member of the Senate on the 8th of December
and that they bore date of December 12, 1864. Therefore he had slept for
sixty or seventy days on his right to a seat which would, at any rate,
expire on the 4th of March. The succeeding Congress, he said, would have
ample time to decide the question, for, no doubt, at that time a
gentleman claiming to be a Senator from Virginia would present himself.
Then it could be deliberately determined. His motion to lay the
credentials on the table prevailed by a vote of 29 to 13.[212] When this
action was taken Carlile was among the eight absentees.
Pursuant to a proclamation of the President the Senate assembled at noon
of March 4 in executive session. Five days later the question of
admitting Senators from Virginia came again before the Senate on
presentation by Mr. Doolittle of the credentials of Hon. John C.
Underwood as Senator-elect from that State for six years from the 4th of
March. His credentials were read and after some discussion it was agreed
to postpone their consideration as well as those of Mr. Segar until the
following session. Henderson and Doolittle spoke in favor of the early
recognition by Congress of the local governments in those States which
had been brought partly under Federal power. The account of Virginian
affairs will be resumed in the final chapter.
-----
Footnote 154:
McPherson’s Pol. Hist., p. 7.
Footnote 155:
McPherson’s Pol. Hist., p. 7n.
Footnote 156:
Eighth Census, pp. 516–522.
Footnote 157:
Density maps in Tenth Census (Population), pp. xii-xiii, xiv-xv,
xvi-xvii.
Footnote 158:
Blair in Appendix to Globe, pp. 327–331, 2 Sess. 37th Cong.; Eighth
Census, pp. 516–522; Seventh Census, pp. 242–261.
Footnote 159:
Parker, The Formation of West Virginia, p. 125.
Footnote 160:
Globe, 2 Sess. 37th Cong., p. 3038.
Footnote 161:
Ann. Cycl., 1861, pp. 743–744.
Footnote 162:
The Formation of West Virginia, p. 36.
Footnote 163:
The Formation of West Virginia, p. 42.
Footnote 164:
Ann. Cycl., 1861, pp. 742–743.
Footnote 165:
The Formation of West Virginia, p. 43.
Footnote 166:
Ibid.
Footnote 167:
Ann. Cycl., 1861, p. 743; The Formation of West Virginia, p. 45, gives
the oath in a form slightly different.
Footnote 168:
Ann. Cycl., 1861, p. 743.
Footnote 169:
Ann. Cycl., 1862, p. 801.
Footnote 170:
Mr. A. W. Campbell in The Wheeling Daily Intelligencer, April 14,
1897.
Footnote 171:
Globe, 1 Sess. 37th Cong., pp. 103–109.
Footnote 172:
The Formation of West Virginia, pp. 47–48.
Footnote 173:
The Formation of West Virginia, pp. 48–50; also Ann. Cycl., 1861, p.
745.
Footnote 174:
The Formation of West Virginia, p. 57.
Footnote 175:
The Formation of West Virginia, p. 79.
Footnote 176:
Ibid., p. 93.
Footnote 177:
The Formation of West Virginia, p. 96, says 16,981 for and 441 against
the constitution. The Annual Cyclopædia for 1862, p. 801, gives the
vote as 18,862 in favor of, and 514 against, the constitution. Poore’s
Charters and Constitutions, Vol. II. p. 1977, is the authority for the
statement in the text.
Footnote 178:
Globe, Part III., 2 Sess. 37th Cong., p. 864; Part IV., pp. 2941–2942,
3034–3039, 3134–3135, 3307–3320.
Footnote 179:
Globe, 2 Sess. 37th Cong., p. 2933.
Footnote 180:
Ibid., p. 3397.
Footnote 181:
Globe, Part I., 3 Sess. 37th Cong., pp. 37–38.
Footnote 182:
Globe, Part I., 3 Sess. 37th Cong., pp. 38–39, 41–42.
Footnote 183:
Globe, Part I., 3 Sess. 37th Cong., pp. 43–45.
Footnote 184:
Ibid., p. 46.
Footnote 185:
Ibid., pp. 46–47.
Footnote 186:
Globe, Part I., 3 Sess. 37th Cong., p. 48.
Footnote 187:
Globe, Part I., 3 Sess. 37th Cong., pp. 50–51.
Footnote 188:
Ibid., p. 35.
Footnote 189:
Globe, Part I., 3 Sess. 37th Cong., pp. 54–55.
Footnote 190:
Ibid., p. 59.
Footnote 191:
Letters and State Papers of Lincoln, Vol. II. p. 283.
Footnote 192:
Quoted in N. & H., Vol. VI. pp. 300–301.
Footnote 193:
Quoted in N. & H., Vol. VI. pp. 302–303.
Footnote 194:
Ibid., p. 304.
Footnote 195:
Quoted in N. & H., Vol. VI. pp. 304–306.
Footnote 196:
See pp. 105–106 _ante_.
Footnote 197:
Letters and State Papers of Lincoln, Vol. II. pp. 285–287.
Footnote 198:
The Formation of West Virginia, p. 152.
Footnote 199:
Ibid., pp. 192–193.
Footnote 200:
Letters and State Papers of Lincoln, Vol. II. p. 326.
Footnote 201:
Webster’s Works, Vol. II. pp. 607–608.
Footnote 202:
By a joint resolution, approved March 10, 1866, Congress agreed that
both counties formed a part of West Virginia. The parent State,
however, by an act of December 5, 1865, had already repealed both the
statutes of January 31 and February 4, 1863, as well as section two of
the act of May 13, 1862; and on December 11, 1866, a bill in equity
was filed in the Supreme Court of the United States in which it was
contended that it was not the intention of that State to consent to
the annexation of Berkeley and Jefferson counties except upon the
performance of certain conditions; the state of the county on election
day was such as not to permit the opening of all the polls in Berkeley
and Jefferson, nor indeed at any considerable part of the usual
election places. The voters did not have adequate notice. In short, a
great majority of them were then and now, December, 1866, opposed to
annexation. Other irregularities are alleged in the complaint of
Virginia. A decision, however, has been rendered by the Supreme Court
of the United States in favor of the new Commonwealth. [See Virginia
vs. West Virginia, 11 Wall., p. 39; also Transcripts of Records,
Supreme Court U. S., Vol. 152, December Term, 1870.]
Footnote 203:
Notwithstanding the new State had been organized by a law which passed
both Houses of Congress, and was approved by the President, Mr. Davis,
of Kentucky, when the members-elect presented themselves before the
Senate, opposed their admission on the ground that there was legally
and constitutionally no such State in existence as West Virginia. On
his motion to administer the customary oath thirty-six Senators voted
in the affirmative, five in the negative. [Globe, 1 Sess. 38th Cong.,
pp. 1–3.]
Footnote 204:
A History of Presidential Elections, Stanwood, pp. 246–247. Edition of
1884.
Footnote 205:
Ann. Cycl., 1864, p. 809.
Footnote 206:
Butler’s Book, p. 618.
Footnote 207:
N. & H., Abraham Lincoln, A History, Vol. IX. pp. 439–442.
Footnote 208:
Letters and State Papers of Lincoln, Vol. II. pp. 619–621.
Footnote 209:
Ibid., p. 623.
Footnote 210:
Why The Solid South? p. 222.
Footnote 211:
Ann. Cycl., 1864, p. 810.
Footnote 212:
Globe, Part II., 2 Sess. 38th Cong., pp. 845–849.
V
ANTI-SLAVERY LEGISLATION
The efforts of Union minorities in Tennessee, in Louisiana and in
Arkansas to establish governments in harmony with the Constitution and
laws of the United States, and the agency of President Lincoln in
effecting that result, have been somewhat particularly described in the
preceding pages. The principal events which marked the progress of
secession in those States, the military successes which brought Federal
authorities to consider the restoration of loyal governments within
their borders, and the operation of those causes which ultimately
overthrew rebellion have been more rapidly sketched. To trace the
successive steps which led to the emancipation of slaves in the seceding
States a somewhat more ample narrative will be required. This subject is
not only of intrinsic interest but its culmination in the proclamation
of September 22, 1862, marks the introduction into the President’s plan
of restoration of an element hitherto left out of account.
In December, 1859, when John Brown, for his rash though courageous
attempt to liberate slaves, was hanged by the authorities of Virginia a
great majority of even Northern people looked on with indifference or
with approval. The inhabitants of the free States, however, were rather
law-abiding than pitiless and came in time to revere the memory of that
stern old Puritan. Ideas in those times matured with amazing rapidity,
and fourteen months had scarcely elapsed when James B. McKean, a
Representative from New York, introduced into Congress, three days
before the Confederate government was organized, the following
resolution:
Whereas the “Gulf States” have assumed to secede from the Union, and
it is deemed important to prevent the “border slave States” from
following their example; and whereas it is believed that those who
are inflexibly opposed to any measure of compromise or concession
that involves, or may involve, a sacrifice of principle or the
extension of slavery, would nevertheless cheerfully concur in any
lawful measure for the emancipation of slaves: Therefore,
_Resolved_, That the select committee of five be instructed to
inquire whether, by the consent of the people, or of the State
governments, or by compensating the slaveholders, it be practicable
for the General Government to procure the emancipation of the slaves
in some, or all, of the “border States”; and if so, to report a bill
for that purpose.[213]
Mr. Burnett, of Kentucky, desiring to discuss the proposition, it was
laid on the table and received no further consideration. Whether Mr.
Lincoln had much reflected upon the principle of this resolution or the
reasoning in its preamble, he had not become on March 4 a convert to its
essential idea, for in his inaugural address he was content, in
expressing his sentiments on the institution of slavery, to re-affirm a
declaration which he had formerly made. “I have no purpose,” said he,
“directly or indirectly, to interfere with the institution of slavery in
the States where it exists. I believe I have no lawful right to do so,
and I have no inclination to do so.”[214] Even if the occasion had not
demanded the language of conciliation we might easily credit this solemn
assurance. Indeed, for an entire year after this announcement he
refrained in his public utterances from taking any attitude hostile to
the continuance of slavery. The influences which forced him to adopt
other opinions may be briefly related.
On May 22, 1861, General Butler arrived at Fortress Monroe and at once
took command of the Department of Virginia; next day he sent a
reconnoitering party to Hampton, and in the terror and confusion
occasioned by the presence of Yankee soldiers three slaves of Colonel
Mallory, a Confederate officer, effected their escape; during the
afternoon they remained in concealment and at night reached the Union
pickets. The following morning they were brought before the Federal
commander, whom they informed of their master’s purpose to employ them
in military operations in North Carolina. On the next day Major John B.
Cary, also of the Confederate army, and a former delegate with Butler in
the Baltimore Convention, came to the fort with a flag of truce, and as
a representative of Colonel Mallory demanded the surrender of these
runaways pursuant to the provisions of the Federal Constitution under
which the Union commander claimed to act. With characteristic readiness
came the reply that the Fugitive Slave Law could not be invoked in this
case; Virginia assumed to be a foreign State and she must count it among
the disadvantages of her position if, so far at least, she was taken at
her word. These negroes further informed General Butler or his officers
that if they were not returned others would come next day. On the 26th
eight slaves were before him awaiting an audience; one squad of
forty-seven came early on the 27th and another lot of a dozen arrived
during the same day. Then they came by twenties, thirties and forties
both to Fortress Monroe and Newport News.[215]
Thus arose an important question on which the Government had yet
developed no policy. As the acts for the rendition of fugitive slaves
were not repealed till June, 1864, the views of individual commanders
temporarily prevailed. Without precedent or instructions General
McDowell by an order entirely excluded them from his lines. Caprice,
too, entered into a settlement of the problem, and even a whimsical
solution was sometimes attempted. A felicitous invention for determining
these controversies between master and bondman is ascribed to the
colonel of a Massachusetts regiment. Both the claimant and the claimed
were put outside his tent for a trial of speed; the negro, proving the
fleeter, was never heard of again.[216] An institution which had
practically determined both the foreign and domestic policy of the
United States for an entire generation was suddenly become the sport of
a subordinate officer of volunteers! The wise should have heeded these
signs.
While the Federal commander in Virginia was exchanging arguments with
Confederate officers, General McClellan at his headquarters in
Cincinnati was considering a proclamation which on May 26 he issued to
the Union men of western Virginia. This document, among other things,
says: “All your rights shall be religiously respected, notwithstanding
all that has been said by the traitors to induce you to believe our
advent among you will be signalized by an interference with your slaves.
Understand one thing clearly: not only will we abstain from all such
interference, but we will, on the contrary, _with an iron hand crush any
attempt at insurrection on their part_.”[217]
Scarcely less explicit in its announcement concerning slavery was
General Patterson’s proclamation of June 3, 1861, to troops of the
Department of Pennsylvania. “You must bear in mind,” says its concluding
paragraph, that “you are going for the good of the whole country, and
that, while it is your duty to punish sedition, you must protect the
loyal, _and, should the occasion offer, at once suppress servile
insurrection_.”[218]
Butler’s interview with Major Cary had been promptly communicated to the
War Department, whose chief, Mr. Cameron, expressed in his reply of May
30 approval of the General’s action. The Secretary, however, endeavored
to distinguish between interference with slave property and the
surrender of negroes that came voluntarily within Federal lines. The
commander was further directed to “employ such persons in the services
to which they may be best adapted, keeping an account of the labor by
them performed, of the value of it, and the expenses of their
maintenance,”[219] the question of their final disposition to be
reserved for future determination.
In defence of his attitude toward masters of fugitives who had been
employed in the batteries or on the fortifications of the enemy,
international law supplied General Butler with an analogy that he
skillfully applied to the novel conditions which had arisen. Articles of
assistance in military operations cannot in time of war be imported by
neutrals into an enemy’s country, and the attempt to introduce such
goods renders them liable to seizure as lawful prize. It did not greatly
embarrass this versatile lawyer that the term _contraband_ applies
exclusively to relations between a belligerent and a neutral, or that
the decision of a prize court might be necessary to determine whether a
particular article had been so designated. No doubt he believed firmly
in the doctrine that the wants of war are contraband of war. In his
correspondence with General Scott he had observed that “as a military
question, it would seem to be a measure of necessity” to deprive
disloyal masters of the services of their slaves, and this, on the
pretext that they were contraband of war, he proceeded to do by refusing
to surrender any negroes coming inside his lines.[220] This method of
settling the difficulty was what Secretary Cameron had approved. But
this phase presented the question in its extreme simplicity. A refusal
to return the slaves of Confederate officers or of Confederate
sympathizers was one thing; similar treatment of loyal slaveholders
would not be so readily overlooked by authority. Though such cases were
more likely to occur in Maryland, Kentucky or Missouri, that fact did
not prevent the subject from assuming very great importance even in
Virginia. Whole families escaped from their masters, and General Butler
soon had on his hands negroes from three months to almost fourscore
years of age.
Attorney-General Bates, writing July 23, 1861, to United States Marshal
J. L. McDowell, of Kansas, who had asked whether he should give his
official service in executing the fugitive slave law, said in response
to the inquiry:
It is the President’s constitutional duty to “take care that the
laws be faithfully executed.” That means all the laws. He has no
right to discriminate, no right to execute the laws he likes, and
leave unexecuted those he dislikes. And of course you and I, his
subordinates, can have no wider latitude of discretion than he has.
Missouri is a State in the Union. The insurrectionary disorders in
Missouri are but individual crimes, and do not change the legal
status of the State, nor change its rights and obligations as a
member of the Union.
A refusal by a ministerial officer to execute any law which properly
belongs to his office, is an official misdemeanor, of which I have
no doubt the President would take notice.[221]
The Attorney-General in this instance merely amplified a suggestion
contained in the inaugural.
Toward the close of July, 1861, the number of “contrabands” had
increased to nine hundred, and the Union commander again requested
instructions.[222] Secretary Cameron’s reply on the 8th of August
following merely authorized, what General Butler had all along been
doing, employing them at such labor as they were adapted to and keeping
a complete record, so that when peace was restored the essential facts
of each case could easily be ascertained.[223] His tact in dealing with
this question appears from an act of Congress approved August 6 in which
his extension of meaning to the word _contraband_ is adopted. This
declared that if persons held to labor or service were employed in
hostility to the United States, the right to their services should be
forfeited and such persons be discharged therefrom.[224]
Exclusion of fugitive slaves from the quarters and camps of troops
serving in the Department of Washington was provided by a general order
of July 17, 1861, and a few weeks later, August 10, the departure by
railway of negroes from the District of Columbia was prevented unless
evidence of freedom could be adduced.[225]
Far more important, however, than these prudent regulations of the
Adjutant-General was the celebrated proclamation of Fremont, dated St.
Louis, August 31, 1861, which declared martial law throughout the entire
State of Missouri and expressed a purpose both to confiscate the
property and free the negroes of all persons in the State who should
take up arms against the United States or who were shown to have taken
an active part with their enemy in the field.[226] The President, in a
communication of September 2 following, wrote General Fremont expressing
anxiety concerning the effects of this proclamation: “I think there is
great danger,” said Mr. Lincoln, “that the closing paragraph, in
relation to the confiscation of property and the liberating slaves of
traitorous owners, will alarm our Southern Union friends and turn them
against us; perhaps ruin our rather fair prospect for Kentucky.[227]
“Allow me therefore to ask that you will, as of your own motion, modify
that paragraph so as to conform to the first and fourth sections of the
act of Congress entitled, ‘An act to confiscate property used for
insurrectionary purposes,’ approved August 6, 1861, and a copy of which
act I herewith send you.
“This letter is written in a spirit of caution, and not of
censure.”[228]
Though General Fremont had acted wholly on his own responsibility he
refused so to modify that portion of his proclamation relative to
emancipating slaves as to conform to the act of Congress referred to,
and in a letter requested the President “openly to direct” him “to make
the correction.” Referring to this part of his communication Mr. Lincoln
replied on the 11th: “Your answer, just received, expresses the
preference on your part that I should make an open order for the
modification, which I very cheerfully do. It is therefore ordered that
the said clause of said proclamation be so modified, held, and
construed, as to conform to, and not to transcend, the provisions on the
same subject contained in the act of Congress” approved August 6,
1861.[229]
As late as October 14 the War Department was guided by the principles
developed in its correspondence with Butler, the instructions of that
date to General T. W. Sherman being based upon this policy.[230] A month
later inhabitants of the eastern shore of Virginia were informed by
General Dix that “special directions have been given not to interfere
with the condition of any person held to domestic service;” to prevent
any such occurrence slaves were not permitted to come within his
lines.[231]
Besides those who favored military emancipation, a large class seriously
expected that the war would not only preserve the integrity of the
Union, but in some way result in a general liberation of slaves. This
feeling, manifested in various ways, was rapidly gathering strength, and
as early as November 8 found enthusiastic expression at a public meeting
of two thousand citizens held in Cooper Institute, New York city. This
assembly, which convened at the suggestion of Mr. Lincoln, was presided
over by Hon. George Bancroft and attended by many distinguished persons
of both the nation and the State. Besides the remarks of its illustrious
chairman addresses were made by William Cullen Bryant, General Ambrose
Burnside, Professor Francis Lieber and others. Shortly before the
speakers arrived a gentleman arose in the audience, and in a ringing
voice proposed “Three cheers for John C. Fremont!” These were given,
says a newspaper account, “with electrical effect and without a murmur
of dissent.” The meeting was evidently not in entire sympathy with the
President’s order modifying that General’s proclamation of the preceding
August.
North Carolina, as is well known, was not so ardent for secession as
most of her sister States in the South; forced to take sides, however,
she imitated the example of her neighbors. Even then all her people did
not share the opinions of their leaders, and when Federal troops landed
in the vicinity of Hatteras nearly four thousand loyal inhabitants of
the coast flocked to their lines and readily took the oath of allegiance
to the United States; for this conduct they incurred the extreme hatred
of secessionists, who soon reduced them to a condition of distress. To
relieve their destitution, by supplies of food and clothing, the meeting
was called in Cooper Institute. Resolutions of sympathy were unanimously
adopted; a committee of relief was appointed to collect from the city
and elsewhere such funds as were necessary for the purchase of supplies,
which were to be forwarded and distributed in the most judicious manner.
“If the President,” said Mr. Bancroft, “has any doubt under the terrible
conflict into which he has been brought, let him hear the words of one
of his predecessors. Alien nullification raised itself in South
Carolina. Andrew Jackson, in the watches of the night, as he sat alone
finishing that proclamation, sent the last words of it to Livingston,
his bosom friend and best adviser. He sent it with these words; I have
had the letter in my own hands, handed to me by the only surviving child
of Mr. Livingston. I know the letter which I now read is a copy: ‘I
submit the above as the conclusion of the proclamation for your
amendment and revision. Let it receive your best flight of eloquence to
strike to the heart and speak to the feelings of my deluded countrymen
of South Carolina. The Union must be preserved without blood if this be
possible; but it must be preserved at all hazards and at any price.’”
Mr. Bancroft added: “We send the army into the South to maintain the
Union, to restore the validity of the Constitution. If any one presents
claims under the Constitution, let him begin by placing the Constitution
in power, by respecting it and upholding it.”
Francis Lieber referred to slavery as “that great anachronism, out of
time, out of place in the nineteenth century,” and Rev. Doctor Tyng
said, “if slavery is in the way of the Union, then tread slavery down
into the dust.”[232] These sentiments were received with applause.
Mr. Bancroft a week later wrote to the President:
Following out your suggestion, a very numerous meeting of
New-Yorkers assembled last week to take measures for relieving the
loyal sufferers of Hatteras. I take the liberty to enclose you some
remarks which I made on the occasion. You will find in them a copy
of an unpublished letter of one of your most honored predecessors,
with which you cannot fail to be pleased.
Your administration has fallen upon times which will be remembered
as long as human events find a record. I sincerely wish to you the
glory of perfect success. Civil War is the instrument of Divine
Providence to root out social slavery. Posterity will not be
satisfied with the result unless the consequences of the war shall
effect an increase of free States. This is the universal expectation
and hope of men of all parties.[233]
On the 18th Mr. Lincoln sent this reply: