PRESIDENT LINCOLN'S VIEWS AND ACTS IN REGARD TO RECONSTRUCTION
Did Mr. Lincoln Have any Theory of Reconstruction?--Mr. Lincoln's
Plan--Mr. Lincoln's Oath of Allegiance, and the Loyal Class to be
Created by the Taking of this Oath--The Proviso in this Plan--Seward's
Idea of Reconstruction and the Views of Congress and the Judiciary--Ten
Per Centum "State" Governments--Reconstruction in Louisiana under Mr.
Lincoln's Plan--The New Orleans Convention--The Election of a
Governor--The Constitutional Convention of April, 1864, and the
Constitution Framed by it and Adopted by the Voters--Reconstruction in
Arkansas--The Beginning of Resistance in Congress to the President's
Plans--The Wade-Davis Bill--Analysis of this Measure--The President's
Attitude toward the Bill--The President's Proclamation of July 8th,
1864--The Wade-Davis Protest against the President's Proclamation--The
President's Message of December 6th, 1864--The Threatened Schism in the
Republican Party and the Presidential Election of 1864--The Refusal of
Congress to Count the Electoral Vote from any "State" which had Passed
the Secession Ordinance--Reconstruction in Tennessee--The Twenty-second
Joint Rule--Reconstruction in Tennessee Continued--Civil Government
Re-established in Tennessee--The Thirteenth Amendment to the
Constitution of the United States--The Proposition of Amendment as it
Came from the Judiciary Committee of the Senate--The Passage of the
Proposition by the Senate--The House Draft--Rejection of the Senate's
Draft in the House--Reconsideration of the Senate's Measure in the
House, and its Final Passage.
[Sidenote: Did Mr. Lincoln have any theory of Reconstruction?]
Some of the ardent admirers of Mr. Lincoln are disposed to dispute the
proposition that he had any theory {9} of Reconstruction. It seems,
however, that they are unconsciously influenced in this by their desire
to escape the conviction that Mr. Lincoln held an erroneous theory of
Reconstruction. It does not seem that one can read impartially Mr.
Lincoln's proclamation of December 8, 1863, without coming to the
conclusion that Mr. Lincoln had a very decided notion on the subject.
It is true that he said that it must not be understood that no other
possible mode of Reconstruction than that proclaimed by him would be
acceptable, but he laid down a very distinct mode, and he said it was
the best he could suggest under existing impressions.
[Sidenote: Mr. Lincoln's plan.]
This plan recognized, in the first place, the continued existence of
the "States" in rebellion as "States" of, and in, the Union. More
exactly, it regarded the rebellion against the United States within
these "States" as the act of combinations of disloyal persons, and not
as the act of the "States" at all. These combinations had subverted the
loyal governments within these "States," but the "States" themselves
were not disloyal, because they could not be. They were impersonal
entities, incapable of committing treason or any other wrong. According
to this view the work of Reconstruction consisted simply in placing the
loyal element in a "State" in possession of the government of the
"State."
In the second place, therefore, Mr. Lincoln's plan contained the
principle that the work of Reconstruction was an executive problem. It
was the work of the Executive, through the power of pardon, to create a
loyal class in a "State" which had been the scene of rebellion, and it
was the work of the Executive to support that class by the military
power in taking possession of, organizing, and operating, the "State"
government.
{10} [Sidenote: Mr. Lincoln's oath of allegiance, and the loyal class
to be created by the taking of this oath.]
And so, Mr. Lincoln undertook to create such a class by constructing an
oath of future loyalty and allegiance to the United States of the
following tenor: "I, ---- ----, do solemnly swear, in the presence of
Almighty God, that I will henceforth faithfully support, protect, and
defend the Constitution of the United States and the union of the
States thereunder; and that I will in like manner abide by and
faithfully support all acts of Congress passed during the existing
rebellion with reference to slaves, so long and so far as not repealed,
modified, or held void, by Congress or by decision of the Supreme
Court; and that I will in like manner abide by and faithfully support
all proclamations of the President during the existing rebellion having
reference to slaves, so long and so far as not modified by the Supreme
Court. So help me God;" and by ordaining that all persons who would
voluntarily take this oath, unless they had been civil or diplomatic
officers of the "so-called Confederate Government," or military
officers thereof above the rank of colonel in the army or lieutenant in
the navy, or had left seats in the United States Congress or judicial
office under the United States, or had resigned commissions in the army
or navy of the United States, in order to aid in the rebellion, or had
been engaged in treating colored persons found in the United States
service in any capacity, or white persons in charge of them, in any
other manner than as prisoners of war, would be regarded as having
re-established their loyalty and allegiance to the United States.
And he then undertook to put this class in possession of the functions
and powers of the "loyal State governments" subverted by the rebellion,
by proclaiming and declaring, "that whenever in any of the States of
{11} Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama,
Georgia, Florida, South Carolina, and North Carolina, a number of
persons, not less than one-tenth in number of the votes cast in such
State at the Presidential election of the year A.D. 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
re-establish a State government which shall be republican and 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 guarantee 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 the executive (when the Legislature
cannot be convened) against domestic violence.'"
[Sidenote: The proviso in this plan.]
It is true that Mr. Lincoln was careful to say in this proclamation
that "whether members sent to Congress from any State shall be admitted
to seats, constitutionally rests exclusively with the respective
Houses, and not to any extent with the Executive," but it is plain that
he did not think the Houses could constitutionally use their power of
judging of the qualifications and elections of their members to keep
members from "States" reconstructed upon his plan from taking their
seats on the ground that these "States" had not been properly
reconstructed.
And it is also true that there occurs in the proclamation another
paragraph which appears to militate against the theory of the
perdurance of a "State" through the period of its rebellion against the
United States. It reads: "And it is suggested as not improper that in
{12} constructing a loyal State government in any State 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 such conditions which may be
deemed expedient by those framing the new State government."
It certainly may appear from this language that while Mr. Lincoln
regarded it as convenient and desirable that the new "State" should be
considered a continuation of the old "State," yet that he did not look
upon it as absolutely necessary. Still, it seems more probable that
this was only his cautious habit of leaving open a way of escape out of
any position when necessity or prudence might require its abandonment
than that he doubted the correctness of his idea of the
indestructibility of the "States" in spite of the rebellion of a part
of their population, or even of the whole of their population.
[Sidenote: Seward's idea of Reconstruction, and the views of Congress
and the Court.]
Mr. Lincoln was not alone in this view of the nature of the "States" of
the Union and the problem of Reconstruction. His able Secretary of
State certainly agreed with him; the resolutions and acts of Congress
down to that time may be better explained upon this theory than upon
any other; and so far as the Supreme Court had dealt with the question,
its dicta, if not its exact decisions, had indicated the same trend of
opinion. The President felt, therefore, no hesitation in applying his
plan in the specific cases that were in a condition for its
realization.
[Sidenote: Virginia not in need of Reconstruction according to
President Lincoln's view.]
Before treating of his reconstruction of Louisiana and Arkansas under
this plan, however, there are two points of the proclamation which
should be briefly noticed. {13} The first is the omission of Virginia
from the names of the "States" to which the proclamation should apply.
The reason for this is simple, and easily understood. The President had
always recognized what was called the Pierpont Government at Alexandria
as the true government of Virginia. Virginia, therefore, according to
his view needed no reconstruction. It belonged in the class with
Kentucky and Missouri.
[Sidenote: Ten per centum "State" governments.]
The other point is the proposition to found "State" government upon ten
per centum of the population of the "State." Now we know that "State"
government in the federal system of the United States is local
self-government. But local self-government cannot really exist where
the part of the population holding the legal authority does not really
possess the sinews of power; and where the conditions of the society
are democratic, or anything like democratic, one-tenth of the
population cannot really possess the sinews of power. The actual power
to make their government valid, to enable their government to govern
would have to come from the outside. While this may happen under
certain temporary exigencies without destroying local self-government
on the whole, yet it cannot be permitted as a principle upon which to
build a local self-government, a "State" in a federal system.
Provincial governments, Territorial governments may be sustained in
that way, but the distinguishing principle of "State" government
forbids it. It is simply not "State" government when holding in this
way the power to govern, as the principle of its life, no matter what
name we may give it. Upon this point, then, Mr. Lincoln's reasoning was
crude and erroneous, and when applied was destined to result in
mischievous error.
{14} [Sidenote: Reconstruction in Louisiana under Mr. Lincoln's plan.]
[Sidenote: The election of members of Congress.]
As far back as the first week in December of 1862 General Shepley, then
Military Governor of Louisiana, had, by permission from the President,
ordered an election for members of Congress, in the districts over
which his jurisdiction extended. The President had cautioned him
against any choice of Northern men at the point of the bayonet, and had
declared to him that such a procedure would be "disgraceful and
outrageous." The General heeded the warning, and two old citizens of
Louisiana, Messrs. Hahn and Flanders, were chosen, and were admitted by
the House of Representatives to their seats. This happened in February
of 1863, and it was certainly good evidence that the House of
Representatives was, at that moment, resting on the theory of the
perdurance of the "State" of Louisiana throughout the rebellion within
its limits against the United States.
[Sidenote: The New Orleans convention.]
[Sidenote: The election of a governor.]
[Sidenote: The constitutional convention of April, 1864, and the
constitution framed by it and adopted by the voters.]
Things went no further than this, however, during the year 1863, the
military situation requiring the whole thought and activity of the
Government. On the 8th of January, 1864, however, a convention was held
at New Orleans for the purpose of advancing the work of reconstruction.
This convention requested General Banks to appoint an election for
officers of the "State" government. The General complied, naming the
22d day of February following for the election, and the 4th of March
for the installation of the officers so chosen. Mr. Hahn was elected
and duly installed Governor, and was soon after declared by the
President to be "invested, until further orders, with the powers
hitherto exercised by the Military Governor of Louisiana." The next
step was for the new Governor to order an election of delegates to a
constitutional convention and the assembly of {15} the same in
convention, for the purpose of so amending and revising the
constitution as to make it fit the new conditions created by the war.
This was done in March and April of 1864, and an anti-slavery
constitution was established for Louisiana. The instrument drafted and
proposed by the convention was adopted by the voters. Eight thousand
four hundred and two votes were cast upon the question of adoption,
about sixteen per centum of the vote cast at the Presidential election
of 1860. This brought the action of the voters within the President's
ten per centum rule. The vote was almost five to one in favor of
adoption. The President's scheme was now put to the practical test,
both in Louisiana and Arkansas, during the spring of 1864.
[Sidenote: The beginning of resistance in Congress to the President's
plan.]
[Sidenote: The Wade-Davis bill.]
Congress was, however, by this time becoming convinced that
Reconstruction was a legislative problem, that is, a problem to be
solved by Congressional acts and constitutional amendment. This is
evidenced not only by the fact that neither House would admit
representatives from Arkansas elected under the new "State"
organization to seats, but by the more pronounced attitude expressed in
what is known as the Wade-Davis measure upon the direct question at
issue. These gentlemen, Mr. Benjamin F. Wade and Mr. Henry Winter
Davis, the former the chairman of the "Committee on the Rebellious
States" in the Senate, and the latter the chairman of a committee
having the same name and functions in the House, originated a bill and
carried it through both Houses of Congress, which, for the first time,
embodied the views of Congress on the subject of Reconstruction. This
bill was finally passed on July 4, 1864, and it contained provisions of
the following tenor: The eleven "States" which had passed {16}
secession ordinances were all treated as rebellious communities, and
the President was authorized to appoint a provisional governor for
each. This governor should exercise all the powers of civil government
in the community to which he might be appointed until "State"
government should be recognized by Congress as restored therein. An
oath of future allegiance to the Constitution of the United States was
then prescribed, and the provisional governor in each "State" was
ordered, whenever rebellion in his "State" should be suppressed, to
direct the United States Marshal to enroll all the white male citizens
of the United States, resident within the "State," in the respective
counties of the "State," and give them the opportunity to take the oath
of allegiance to the United States. The bill then directed that when a
majority of such citizens should take this oath, they might be
permitted to elect delegates to a convention, which convention might
take action for the establishment of "State" government. The bill
disqualified all persons who had held any office, civil or military,
"State" or Confederate, in rebellion against the United States, or who
had voluntarily borne arms against the United States, from voting for
delegates, or from being elected as delegates, to the convention. The
bill then provided that the convention thus elected and assembled might
form a "State" constitution, but must insert in it clauses abolishing
slavery, repudiating all debts, "State" or Confederate, created by, or
under the sanction of, the usurping power, and disqualifying all
persons who had held office civil or military, "State" or Confederate,
under the usurping power, except civil offices merely ministerial, and
military offices below the rank of colonel, from voting or being
elected governor or members of the legislature. The bill then provided
for the submission of the constitution so formed to the voters, {17}
and if ratified by a majority thereof, required the provisional
governor to certify the same to the President. It then provided that
the President, after obtaining the consent of Congress thereto, should
proclaim the new "State" government as established, and as the
constitutional government of the "State," after which Representatives
and Senators in Congress, and electors of the President, might be
chosen in said "State." Finally, the bill abolished slavery at once in
all the rebellious "States" and imposed penalties upon all persons
attempting thereafter to hold anyone in involuntary servitude; and
declared all persons who should thereafter hold office civil or
military, "State" or Confederate, in the rebel service, except an
office purely ministerial or under the grade of colonel, not to be
citizens of the United States.
[Sidenote: Analysis of this measure.]
A brief analysis of this bill will show that Congress was nearer to
some doctrine on the subject of Reconstruction than was the President.
In the first place, Congress claimed Reconstruction as a legislative
problem. This was undoubtedly the true theory upon that point. In the
second place, Congress required the loyalty to the United States of at
least a majority of the white adult males as the basis of "State"
government, local self-government. That also was undoubtedly true
political theory as has been already explained. In the third place,
Congress asserted the power to abolish slavery within the limits of
those "States" whose legislatures or conventions had passed the
ordinances of secession. That is, Congress dealt with these districts
not as "States" of the Union, but as territories or districts subject
to the exclusive authority of the central Government. Congress was here
beginning, at least, to act upon the idea that the districts in
rebellion did not perdure, as "States," {18} throughout the rebellion,
but had lost thereby the forms, powers and functions of "State"
governments, and were neither out of the Union nor in the Union as
"States," but were under the central Government of the Union as
territory inhabited by a population disorganized as to local
government. This was also sound political science, and the President
ought to have heeded its teachings.
[Sidenote: The President's attitude toward the bill.]
[Sidenote: The President's proclamation of July 8, 1864.]
But he did not. He did not, it is true, veto the bill. He simply
allowed the session to expire without signing it. This having happened
in less than ten days from the time it was submitted to him, the bill
failed, as provided in such cases by the Constitution. He, however,
issued on the 8th of July a proclamation in regard to the subject, in
which he objected to the setting aside of the "free State constitutions
and governments already adopted and installed in Arkansas and
Louisiana;" doubted the competency of Congress to abolish slavery
within the "States;" expressed the hope and expectation that this might
be done for the whole country by constitutional amendment; declared his
willingness to have the loyal people in any of the rebellious "States"
reconstruct their governments upon the Congressional plan, if they
should choose to do so; but declared also his unwillingness to commit
himself inflexibly to any single plan of restoration; and virtually
asked the voters to make the difference between himself and Congress
upon the subject an issue in the coming Presidential election.
[Sidenote: The Wade-Davis protest against the President's
proclamation.]
This was one of the boldest acts of Mr. Lincoln's career as President,
and it is little wonder that men of so much intelligence, courage and
tenacity as Messrs. Wade and Davis did not allow the proclamation to go
unanswered. Congress had adjourned, as we have seen, before the
appearance of the proclamation. There was, {19} therefore, no way for
Congress as a whole to make immediate answer. Messrs. Wade and Davis
believed that the public interests would suffer if the answer should be
postponed until the next meeting of Congress. They, therefore, issued a
protest against the proclamation over their own names. The protest was
printed in the New York _Tribune_ of August 5, 1864. It was an
intemperate arraignment of the President. It declared, among other
things, that "a more studied outrage on the legislative authority of
the people had never been perpetrated;" that the President had "greatly
presumed on the forbearance which the supporters of his Administration"
had "so long practised, in view of the arduous conflict in which" they
were "engaged and the reckless ferocity of" their "political
opponents;" that he must understand that their support was not of a man
but of a cause; and that he must confine himself to his executive
duties, and leave political reorganization to Congress.
Such denunciations of the President's purposes could have but one
effect, viz., the strengthening of his hands by the support of the
people, who so generally trusted him, in the election of 1864. It
injured Mr. Davis so much that he failed of even a renomination for his
seat in Congress.
[Sidenote: The President's message of December 6, 1864.]
The President, on the other hand, used his triumph with great tact and
moderation. He made no reference, in his message of December 6, 1864,
either to his proclamation or to the protest which had been so fiercely
hurled against it. He simply informed Congress that important movements
had occurred during the year "to the effect of molding society for
durability in the Union;" and that "12,000 citizens in each of the
States of Arkansas and Louisiana" had "organized loyal State {20}
governments, with free constitutions, and" were "earnestly struggling
to maintain and administer them." He also spoke of the gratifying
situation and movements in Maryland, Kentucky, Missouri and Tennessee.
[Sidenote: The threatened schism in the Republican party, and the
Presidential election of 1864.]
It may be that Mr. Lincoln did not interpret his great victory at the
polls in November preceding as a specific approval of his
Reconstruction policy. In the spring and early summer of 1864, the
Republican party was threatened with schism largely upon the subject of
Reconstruction. Eight days before the meeting of the regular nominating
convention of the party, that is on the 31st of May, some three hundred
and fifty men, representing, or professing to represent, the more
radical element of the party, met in convention at Cleveland, Ohio.
General John Cochrane of New York was made chairman of the body, and
General John C. Frémont and General John Cochrane were nominated by it
for the presidency and vice-presidency of the United States. The
twelfth section of the platform provided, "that the reconstruction of
the rebel States belongs to the people, through their representatives
in Congress, and not to the Executive."
The regular convention met June 7th at Baltimore, and adopted a
platform which took no sides in regard to Reconstruction, but simply
sought to rally all Union men around the President for the purpose of
saving the Union and putting an end to the rebellion. Many war
Democrats took part in it who favored Lincoln's ideas of
Reconstruction, and many Republicans who did not. The Democratic
convention met at Chicago August 27th and adopted a platform which
virtually proclaimed the war a failure, and demanded a cessation of
hostilities preparatory to a compromise with the Confederates. Their
nominee, General McClellan, with whom was {21} associated on the ticket
Mr. George H. Pendleton of Ohio, repudiated the platform but accepted
the nomination and made the race.
Under the condition of schism in the Republican ranks, his chances
seemed at first fair. But on September 21st, Generals Frémont and
Cochrane, the nominees of the radical Republicans, withdrew from the
contest, and the reunion of the Republican party on the Baltimore
platform was effected. It was thus a question whether the overwhelming
electoral vote for Lincoln and Johnson, two hundred and twelve to
twenty-one for McClellan and Pendleton, meant the approval of Lincoln's
views and acts in Reconstruction, and it certainly behooved the
President to exercise some caution in so interpreting it, especially as
there was no such wide difference in the popular vote, the McClellan
electors having received 1,835,985 votes to 2,330,552 for the Lincoln
electors. There is no question, however, that the President still
believed in the correctness of his method and was determined to pursue
the course upon which he had entered.
[Sidenote: No change in the views of Congress caused by the
Presidential election.]
[Sidenote: The refusal of Congress to count the electoral vote from any
"State" which had passed the secession ordinance.]
Neither was there any sign manifested that Congress would desist from
pressing its views of its own powers in the matter. Both Houses had
refused to admit members from the reconstructed "States," and now they
passed a joint resolution, on February 4th, 1865, which prohibited the
counting of any electoral votes for President and Vice-President in the
election of 1864, from "States" which had passed the secession
ordinance. Elections had been held in Louisiana and also in Tennessee,
and this resolution was intended to prevent the counting of the votes
which the persons chosen electors for Louisiana and Tennessee should
send in. The resolution was sent to the President for his signature. He
{22} hesitated for several days, but approved it at last on the day
that Congress counted the electoral votes, February 8th. In doing so,
however, he addressed a message to Congress informing the two Houses
that he had signed it out of deference to their views, and saying that
"in his own view, however, the two Houses of Congress, convened under
the twelfth article of the Constitution, have complete power to exclude
from counting all electoral votes deemed by them to be illegal; and it
is not competent for the Executive to defeat or obstruct that power by
a veto, as would be the case if his action were at all essential in the
matter. He disclaims all rights of the Executive to interfere in any
way in the matter of canvassing or counting electoral votes, and he
also disclaims that, by signing said resolution, he has expressed any
opinion on the recitals of the preamble or any judgment of his own upon
the subject of the resolution." The recitals of the preamble referred
to read thus: "Whereas, the inhabitants and local authorities of the
States of Virginia, North Carolina, South Carolina, Georgia, Florida,
Alabama, Mississippi, Louisiana, Texas, Arkansas and Tennessee rebelled
against the Government of the United States, and were in such condition
on the 8th day of November, 1864, that no valid election for electors
of President and Vice-President of the United States, according to the
Constitution and Laws thereof, was held therein on said day, etc."
[Sidenote: Reconstruction in Tennessee.]
Louisiana, which had fulfilled the President's conditions of
reconstruction, was thus included in this list, and also Tennessee,
where by order of Governor Andrew Johnson, the candidate for
Vice-President on the Lincoln ticket, an election of electors had been
held. Tennessee had not, at the time of the counting of the {23}
electoral vote, completed any process of reconstruction. The
convention, called at Governor Johnson's instigation to meet at
Nashville for the purpose of nominating candidates for Presidential
electors, had called a constitutional convention to meet in Nashville
on December 19th, following the Presidential election, for the purpose
of undertaking the work of reconstruction. Hood's advance upon
Nashville delayed its meeting, however, until January 3d. This
convention took the old constitution of Tennessee as its starting-point
and subjected it to a pretty thorough revision in the direction of a
"free State government." It also prescribed a rather stiff test oath
for all persons offering to vote upon the adoption of the amendments,
an oath which not only promised future loyalty to the Constitution of
the United States, such as Lincoln had prescribed, but which also
required the taker of it to swear that he was an active friend of the
Government of the United States, and an enemy of the so-called
Confederate States. The amended constitution had not, however, been
submitted to the voters at the date when Congress counted the electoral
vote, that is, before the 8th of February, 1865, and of course no
"State" government had been elected under the amended constitution. The
vote upon the constitution occurred on the 22d of February, and the
election of the Governor and the members of the Legislature under it
occurred on March 4th.
The case of Tennessee did not from this point of view appear as strong
as that of Louisiana. But it is difficult to see how the Republicans
could have consistently rejected the vote of Tennessee after having
nominated and elected a citizen of Tennessee as Vice-President of the
United States. It is certainly implied in the Constitution of the
United States that no man is {24} eligible to the office of
Vice-President unless he be at the time of his election a citizen of a
"State" of the Union. The Constitution implies that the Vice-President
shall have the same qualifications as the President; and it distinctly
says that in giving their vote, the electors in each "State" shall vote
for two persons, "of whom one at least shall not be an inhabitant of
the same State with themselves." If an inhabitant of Tennessee could be
lawfully Vice-President of the United States, it does certainly seem
implied that Tennessee was, at the time, a "State" of the Union in
regular standing.
However this may have been, the President was certainly correct in
saying that Congress was vested with full power over the count of the
electoral vote, and that the Executive had no control over it
whatsoever. It was a bit of harmless good humor that he signed the
resolution as a perfunctory matter, and it was calculated to improve
the temper of the somewhat irritated members of Congress.
[Sidenote: The twenty-second joint rule.]
Congress was not, however, formally notified of the fact that he had
signed the measure until after the counting of the vote had been
finished, and the two Houses met the exigency by the enactment of what
was known as "the twenty-second joint rule," according to which the
consent of both Houses was required to count the electoral vote from
any "State" or any body or place professing to be a "State." As a
matter of fact, the Vice-President, Mr. Hamlin, declared that he had in
his possession returns from the "States" of Louisiana and Tennessee,
but held it to be his duty not to present them, and he did not present
them. He knew that the President had signed the joint resolution,
although Congress had not been officially notified of it, and he acted
under the {25} resolution as law. The joint rule would have required
the presentation of these votes to the joint meeting of the two Houses,
and would have required the concurrence of the two Houses, acting
separately, to have included them in the count. The joint rule was,
therefore, not applied to the case for which it was enacted, but it
remained unrepealed for more than ten years, and then showed itself a
sort of Nemesis to its creators.
[Sidenote: Reconstruction in Tennessee continued.]
Tennessee pursued, however, the course of reconstruction upon which she
had set out. Her test oath, as we have seen, required virtually that
the basis of her reorganization should be the men who had _remained_
loyal throughout the rebellion. It differed thus from Mr. Lincoln's
oath, which rehabilitated those who would promise future loyalty. The
vote in favor of the new constitution, which was the old constitution
of the "State" amended by articles abolishing slavery, nullifying
secession, and repudiating the debt created in aid of the rebellion,
was more than twenty-five thousand, nearly twenty per centum of the
vote for Presidential electors in 1860. This certainly much more than
fulfilled all of Mr. Lincoln's conditions.
[Sidenote: Civil government re-established in Tennessee.]
Governor Johnson issued his proclamation on February 25th, 1865,
declaring the adoption of the new constitution, and ordering the
election of the Governor and legislative members under it for March
4th. W. G. Brownlow was chosen Governor. The newly elected legislature
did not meet, however, until April 2d, and Mr. Brownlow was not
inaugurated as civil Governor until April 7th. As Mr. Johnson was
inaugurated Vice-President on March 4th, he had been obliged to lay
down the military governorship on that date, in fact, a few days
before, and Mr. Brownlow had been appointed {26} in his stead. Upon
Brownlow's inauguration as civil Governor, the military régime in
Tennessee was formally ended. Lincoln acquiesced certainly in this
change.
It remained now for Congress to show its attitude, when the Senators
and Representatives from Tennessee should present themselves for
admission to seats in the two Houses. As this could not happen until
the following December, the history of this point must be deferred
until the events between March 4th and December 4th are related.
[Sidenote: The Thirteenth Amendment to the Constitution of the United
States.]
The experiences of the year 1863 with the slavery problem had convinced
the President and the leaders of the Republican party in Congress that
abolition must be effected by a constitutional amendment. The military
acts of the President in this direction were, as all the purely
military measures of the Executive, temporary, and with the
re-establishment of peace would cease to have force; and it was by this
time pretty clear that but few of the "States" would abolish slavery by
their own act. Already on January 11, 1864, had the proposition for a
constitutional amendment abolishing slavery throughout the length and
breadth of the United States been presented in the Senate by Mr. John
B. Henderson of Missouri, and referred to the Judiciary Committee of
that body for consideration and report.
The language of the first article of Mr. Henderson's proposition read:
"Slavery or involuntary servitude, except as a punishment for crime,
shall not exist in the United States." When it came back from the
Judiciary Committee, as reported by Mr. Trumbull, it was called Article
XIII., and read: "Sec. 1. Neither slavery nor involuntary servitude,
except as a punishment for crime, whereof the party shall have been
duly convicted, shall {27} exist in the United States or any place
subject to their jurisdiction. Sec. 2. Congress shall have power to
enforce this article by appropriate legislation."
[Sidenote: The proposition of amendment as it came from the Judiciary
Committee of the Senate.]
It will be advantageous in our further consideration of this article to
recall briefly the reasons for these divergencies. The language used by
the Judiciary Committee corresponds almost exactly with the wording of
the ordinance of the Northwest Territory of 1787; and it is entirely
evident that the Judiciary Committee had that act in mind when it
reported the article. Mr. Henderson's proposition was that slavery or
involuntary servitude should not exist in the _United States_. He well
understood that it did not require a constitutional amendment to
abolish slavery from those parts of the country where "States" had not
been formed. He knew that Congress could do that. The Judiciary
Committee, however, did not think it wise or necessary to "make two
bites of a cherry." They preferred to make their prohibition apply to
the whole country. They knew that the phrase _United States_ was
capable of being interpreted to mean only that part of the country
where "States" existed, and they preferred and intended to make their
prohibition of slavery extend to the whole country. From abundant
caution they used the words United States, with the additional words
"any place subject to their jurisdiction," in order to cover all
territory over which the flag of the Union should fly in sovereign
power.
The second section, giving to Congress special power to enforce this
article, seems, at first, unnecessary, because according to the last
paragraph of Section 8, Article I., of the Constitution, Congress is
vested with the authority to make all laws necessary and proper to
carry into execution all the powers vested by the {28} Constitution in
any department or officer of the Government. This abolition of slavery
was, however, a restriction on the "States." It laid a new limitation
upon their powers, and hence it was thought that Section 8 of Article
I. might not apply in the execution of such a provision against the
"States." But if we regard the provision from the point of view of the
rights of an individual to his freedom against any "State" law to the
contrary, then we must see that the amendment does invest the United
States courts with the power to impose the restriction in behalf of the
individual seeking deliverance from the attempt of a "State" to enslave
him or to continue his enslavement. And once the power vested in the
courts to do this the general provision of Article I., Section 8, will
certainly apply. The resolution offered by the Judiciary Committee
passed the Senate by the requisite majority on the 8th of April, 1864.
[Sidenote: The House draft.]
During this same period, Mr. William Windom, of Minnesota, offered in
the House of Representatives a resolution upon the subject in the
identical words of the Senate's resolution. It was referred to the
Judiciary Committee of the House, February 15, 1864. While it lay in
the room of the Committee, Mr. Stevens offered a substitute for it,
which read: "Slavery and involuntary servitude, except as a punishment
for crime, whereof the party shall have been duly convicted, is forever
prohibited in the United States and all its Territories." This is
another bit of evidence for the proposition that what was meant by the
words "or any place subject to their jurisdiction" in Mr. Trumbull's
resolution was all parts of the country not enjoying "State" government
in local matters.
[Sidenote: Rejection of the Senate's draft in the House.]
The Senate resolution was sent into the House on the {29} 31st of May,
and was there lost on June 15th, having received a large majority,
indeed, in its favor, but not a two-thirds majority.
[Sidenote: Reconsideration of the Senate's measure in the House, and
its final passage.]
Foreseeing the failure of the resolution at that juncture, Mr. J. M.
Ashley, of Ohio, voted against the measure, although a stanch friend of
it. His purpose was of course to be able to move, at some future and
more propitious time, a reconsideration of the subject. He did not,
however, feel that that time had arrived until after the election and
the military victories of the autumn of 1864 had manifested the temper
of the voters on the question of abolition and demonstrated the power
of the Union to carry such a measure into execution. On the 31st of
January, 1865, Mr. Ashley moved a reconsideration of the Senate
resolution lost in the House on the 15th of the preceding June.
Reconsideration was immediately voted, and the Senate resolution was
then carried by the requisite two-thirds majority.
The proposed amendment was then sent to the President, who signed it,
February 1st, 1865. Whereupon the Senate immediately passed another
resolution, declaring that it was through an inadvertency that the
measure had been sent to the President for his signature, that asking
the President of the United States to sign a proposed constitutional
amendment was an error, was without precedent in the practice of the
Government, and that the President's approval should not be
communicated to the House. A concurrent resolution was then passed by
the two Houses authorizing the President to submit the proposed article
of amendment to the "States" for ratification. The Secretary of State
immediately sent it to the legislatures of all the "States" which could
be reached by him, and during the summer and autumn to the legislatures
of all the "States;" {30} and the new legislature of Tennessee ratified
it on the 5th of April, 1865, that is, more than a week before
Lincoln's death.
Such was the condition of things when the assassin's bullet ended the
life of the great and good President and brought the Vice-President,
Mr. Johnson, into the office.
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