CHAPTER I

_THE AMERICAN HISTORY SERIES_

RECONSTRUCTION AND THE CONSTITUTION

1866-1876

BY

JOHN W. BURGESS, PH.D., LL.D.

PROFESSOR OF POLITICAL SCIENCE AND CONSTITUTIONAL LAW, AND DEAN OF THE

FACULTY OF POLITICAL SCIENCE, IN COLUMBIA UNIVERSITY

NEW YORK

CHARLES SCRIBNER'S SONS

1905

COPYRIGHT, 1902, BY

CHARLES SCRIBNER'S SONS

TROW DIRECTORY

PRINTING AND BOOKBINDING COMPANY

NEW YORK

To the memory of

RICHMOND MAYO-SMITH,

pupil, colleague, and life-long friend, with grief too deep for words

at his loss, this volume is affectionately inscribed by the Author.

PREFACE

In my preface to "The Middle Period" I wrote that the re-establishment

of a real national brotherhood between the North and the South could be

attained only on the basis of a sincere and genuine acknowledgment by

the South that secession was an error as well as a failure. I come now

to supplement this contention with the proposition that a corresponding

acknowledgment on the part of the North in regard to Reconstruction

between 1866 and 1876 is equally necessary.

In making this demand, I must not be understood as questioning in the

slightest degree the sincerity of the North in the main purpose of the

Reconstruction policy of that period. On the other hand, I maintain

that that purpose was entirely praiseworthy. It was simply to secure

the civil rights of the newly emancipated race, and to re-establish

loyal Commonwealths in the South. But there is now little question that

erroneous means were chosen.

Two ways were open for the attainment of the end sought. One was that

which was followed, namely, placing the political power in the hands of

the newly emancipated; and the other was the nationalization of civil

liberty by placing it under the protection of the Constitution and the

national Judiciary, and holding the districts of the South under

Territorial civil government until the white race in those districts

should have sufficiently recovered from its temporary disloyalty to the

Union to be intrusted again with the powers of Commonwealth local

government.

There is no doubt in my own mind that the latter was the proper and

correct course. And I have just as little doubt that it would have been

found to be the truly practicable course. The people in the loyal

Commonwealths were ready in 1866 to place civil liberty as a whole

under national protection; and not half of the whites of the South

entertained, at that moment, disloyal purposes or feelings. Even the

solid Democratic South was yet to be made; and I doubt most seriously

if it would ever have been made, except for the great mistakes of the

Republican party in its choice of means and measures in Reconstruction.

I will not, however, enter upon the argument in reference to this

question at this point. That belongs to the body of the book. I will

only add that, in my opinion, the North has already yielded assent to

this proposition, and has already made the required acknowledgment. The

policy of Mr. Hayes's administration, and of all the administrations

since his, can be explained and justified only upon this assumption.

And now that the United States has embarked in imperial enterprises,

under the direction of the Republican party, the great Northern party,

the North is learning every day by valuable experiences that there are

vast differences in political capacity between the races, and that it

is the white man's mission, his duty and his right, to hold the reins

of political power in his own hands for the civilization of the world

and the welfare of mankind.

Let the South be equally ready, sincere, and manly in the consciousness

and the acknowledgment of its share in past errors, and the

reconciliation will be complete and permanent!

I have again to express my thanks to my friend and colleague, Dr.

Cushing, for his aid in bringing this volume through the press. I

desire also to acknowledge the courtesy of the New York _Independent_

for allowing parts of my article on the Geneva Award, published some

years ago in that esteemed journal, to be incorporated in the last

chapter of this book.

JOHN W. BURGESS.

323 WEST 57TH ST., NEW YORK CITY,

January 22d, 1902.

CONTENTS

PAGE

CHAPTER I

THE THEORY OF RECONSTRUCTION . . . . . . . . . . . . . . . . . . 1

CHAPTER II

PRESIDENT LINCOLN'S VIEWS AND ACTS IN REGARD TO RECONSTRUCTION . 8

CHAPTER III

PRESIDENT JOHNSON'S PLAN OF RECONSTRUCTION AND HIS PROCEEDINGS

IN REALIZATION OF IT . . . . . . . . . . . . . . . . . . . . . 31

CHAPTER IV

THE CONGRESSIONAL PLAN OF RECONSTRUCTION . . . . . . . . . . . . 42

CHAPTER V

THE CONGRESSIONAL PLAN (_Continued_) . . . . . . . . . . . . . . 62

CHAPTER VI

THE CONGRESSIONAL PLAN (_Continued_) . . . . . . . . . . . . . . 84

CHAPTER VII

THE CONGRESSIONAL PLAN (_Completed_) . . . . . . . . . . . . . . 107

CHAPTER VIII

THE EXECUTION OF THE RECONSTRUCTION ACTS . . . . . . . . . . . . 144

CHAPTER IX

THE ATTEMPT TO REMOVE THE PRESIDENT . . . . . . . . . . . . . . 157

CHAPTER X

RECONSTRUCTION RESUMED . . . . . . . . . . . . . . . . . . . . . 195

CHAPTER XI

PRESIDENT GRANT AND RECONSTRUCTION . . . . . . . . . . . . . . . 222

CHAPTER XII

"CARPET-BAG" AND NEGRO DOMINATION IN THE SOUTHERN STATES BETWEEN

1868 AND 1876 . . . . . . . . . . . . . . . . . . . . . . . . 247

CHAPTER XIII

THE PRESIDENTIAL ELECTION OF 1876 AND ITS CONSEQUENCES . . . . . 280

CHAPTER XIV

INTERNATIONAL RELATIONS OF THE UNITED STATES BETWEEN 1867 AND

1877 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

RECONSTRUCTION AND THE CONSTITUTION

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RECONSTRUCTION

CHAPTER I

THE THEORY OF RECONSTRUCTION

The Conception of a "State" in a System of Federal Government--The

Different Kinds of Local Government Provided for in the Constitution of

the United States--Local Government Under the Constitution of the

United States--"State" Destructibility in the Federal System of

Government--The Effect on "State" Existence of the Renunciation of

Allegiance to the Union--The Idea of "State" Perdurance--The

Constitutional Results of Attempted Secession.

[Sidenote: The conception of a "State" in a system of federal

government.]

The key to the solution of the question of Reconstruction is the proper

conception of what a "State" is in a system of federal government. This

is a conception which is not easy to acquire, and which, when acquired,

is not easy to hold. The difficulty lies, chiefly, in the tendency to

confound the idea of a "State" in such a system with a state pure and

simple. Until the distinction between the two is clearly seen and

firmly applied, no real progress can be made in the theory and practice

of the federal system of government. Now the fundamental principle of a

state pure and simple is sovereignty, the original, innate, and legally

unlimited power to command and enforce obedience by the infliction of

penalties for disobedience. On the other hand, the nature of a "State"

in a system of federal {2} government is a very different thing. Such a

"State" is a local self-government, under the supremacy of the general

constitution, and possessed of residuary powers. In the federal system

of the United States, it is a local self-government, under the

supremacy of the Constitution of the United States, and of the laws and

treaties of the central Government made in accordance with that

Constitution, republican as to form, and possessed of residuary

powers--that is, of all powers not vested by the Constitution of the

United States exclusively in the central Government, or not denied by

that Constitution to the "State."

[Sidenote: The different kinds of local government provided for in the

Constitution of the United States.]

It must be kept in mind that this is not the only kind of local

government known in the constitutional law and practice of the United

States. There is, and always has been, since the establishment of the

federal system in 1789, for the larger part of the population which

declared united independence of Great Britain in 1776, another kind of

local government for a part of the United States, a local government

which is not self-government, a local government which is but an agency

of the central Government. In fact, there have been at times three

kinds of local government in the political system of the United States,

viz., local government by the executive department of the central

Government--that is, local government by executive discretion, martial

law--local government as an agency of the legislative department of the

central Government--that is, Territorial government--and "State"

government. That is to say, since 1789 the whole of the United States,

territorially, has never been under the federal system of government,

but has _always_ been partly under federal government and partly under

the exclusive government of Congress, and has _sometimes_ been partly

under federal government, {3} partly under the exclusive government of

Congress, and partly under the exclusive government of the President.

[Sidenote: Local government under the Constitution of the United

States.]

The Constitution of the United States recognizes and provides for all

three of these species of local government, and vests in Congress the

power of advancing the population of a district, the confines of which

district shall be determined by Congress itself, from the lower to the

higher forms of local government. While the Constitution does not

expressly impose upon Congress the duty of making or permitting the

change from one kind of local government to another, it impliedly

indicates that Congress shall determine the kind of local government

which the population of any particular district shall enjoy in

accordance with the conditions prevailing, at any given moment, among

them. If the maintenance of law and order requires the immediate

exercise of military power, Congress may, and should, permit the

continuance of the President's discretionary government. If, on the

other hand, this is not necessary, Congress may, and should, confer

civil government, under the Territorial form, and when the population

of a Territory shall have become ripe for local self-government and

capable of maintaining it, Congress may, and should, allow the

Territory to become a "State" of the Union, a Commonwealth.

[Sidenote: "State" destructibility in the system of federal

government.]

[Sidenote: The effect on "State" existence of the renunciation of

allegiance to the Union.]

Such being the nature of a "State" of the Union and such the method of

its creation, what reason is there for speaking of the "States" in a

system of federal government as indestructible? As they emerge from the

status of Territories under the exclusive power of Congress, upon

having attained certain conditions, why may they not revert to the

status of Territories upon having lost these conditions of "State"

existence; nay, why may {4} they not revert to the status of martial

law by having lost all of the conditions of civil government? The

dictum "once a State always a State" in a system of federal government

has no sound reason in it. Under the Constitution of the United States,

every "State" of the Union may through the process of amendment be made

a province subject to the exclusive government of the central

authorities; and when those who wield the powers of a "State" renounce

the "State's" allegiance to the United States, renounce the supremacy

of the Constitution of the United States and of the laws of the central

Government made in accordance therewith, then from the point of view of

political science it will become a state pure and simple, a

sovereignty, if and when it permanently maintains, by its own power or

by the assent of the United States, this attitude against the United

States, but from the point of view of the constitutional law of the

United States it simply destroys one of the fundamental conditions of

local self-government, and gives, thus, warrant to the central

Government to resume exclusive government in the district, and over the

population which has become disorganized by refusing obedience to the

supreme law of the land, as fixed by the Constitution of the United

States. Whether the central Government has the physical power, at a

given moment, to do this or not, is another question. It certainly has,

at the outset, the legal right. The "State" is no longer a "State" of

the Union, nor has it become a state out of the Union. It is simply

nowhere. The land is there and the people are there, but the form of

local government over it and them has been changed from local

_self_-government to a Congressional or a Presidential agency, as the

case may be.

[Sidenote: The idea of "State" perdurance.]

[Sidenote: The acceptance of this idea by the Government of the United

States.]

Neither is there any reason for holding that the old {5} "State"

organization perdures as an abstract something under the forms of

Congressional or Presidential rule, and will emerge of itself when

these are withdrawn. If the "State" form of local government should be

established again over that same district and over the population

inhabiting it, it would be an entirely new creation, even though it

should recognize the forms and laws and obligations of the old "State."

It must be, however, remembered that both the executive and judicial

departments of the United States Government committed themselves fully

to this theory of "State" perdurance as an abstract something

unaffected by the loss of the conditions of the "State" form of local

government through the rebellion of the "State" organization against

the supremacy of the Constitution and laws of the United States, and

that Congress did the same thing, at first, in some degree. It was this

error which caused all of the confusion in the ideas and processes of

Reconstruction, and we ought, therefore, to rid ourselves of it at the

start, at the same time that we recognize its influence over the minds

of those who engaged in the difficult work of the years between 1865

and 1876.

[Sidenote: The constitutional results of attempted secession.]

From the view which we take of the nature of a "State" in a system of

federal government, and its possible destructibility, there is not much

difficulty in determining the constitutional results of an attempt upon

the part of such a "State" to break away from its connections in that

system. What it does, stripped of all misconception and verbiage, is

simply this: it forcibly resists the execution of the whole supreme law

of the land, and destroys the prime condition of its own existence by

making it necessary for the central Government to {6} assert exclusive

power in the district where this happens. Naturally the executive

department of the central Government must act first, and subdue by

force the force which has been offered against the supremacy of the

Constitution and laws of the United States. After that shall have been

accomplished, the question as to how the population in the rebellious

district shall be civilly organized anew, is one for the legislative

department of the central Government exclusively. Congress may fashion

the boundaries of the district at its own pleasure, and may establish

therein such a Territorial organization of civil local government as it

may see fit, and is limited in what it may do in this respect only by

the constitutional immunities of the individual subject or citizen

under every form of civil government provided or allowed by the

Constitution of the United States. Congress may also enable the

existing population of such a district, or such part of that population

as it may designate, to organize the "State" form of local government,

and may grant it participation in the powers of the central Government

upon an equality with the other "States" in the federal system. These

things are matters in which the President, as the executive power,

cannot interfere. As participant in legislation, however, he may, at

his own discretion, use his powers of recommendation and veto.

If rebellion against the supremacy of the Constitution and laws of the

United States should not be committed by an existing "State"

organization, but by a new organization claiming to be the "State"

organization within the district concerned, the existing organization

remaining loyal, but requiring the aid of the central Government to

maintain its authority, then the withdrawal of that aid by the

President after the accomplishment of its purpose would, of course,

leave the old {7} "State" organization with restored authority, and

Congress would have no function to perform in the re-establishment of

civil government in such a district, or in the readmission of its

population to participation in the central Government. This was the

course followed in Missouri and Kentucky, and it was the course, which,

at first, was attempted in the case of Virginia. In the first two cases

it was entirely correct. In the last it had to be abandoned, for

reasons, and on account of conditions, which will be explained later.

What we have, therefore, in the theory and history of Reconstruction is

the case of existing "State" organizations forcibly resisting the

execution of the supreme law of the land, and stricken down by the

executive power of the central Government in the attempt, that power

being exercised at its own motion and in its own way.

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