_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.
{8}