Reconstruction: the Second Plan

Congress addressed itself, in the first instance, to extending and prolonging that provision for the freedmen which it had already made through the Freedmen's Bureau. A bill was reported, having the weighty sanction of Senator Trumbull and the judiciary committee, greatly increasing the force of officials under the Bureau; putting it under the military administration of the President and so with the direct support of the army; and broadening its functions to include the building of school-houses and asylums for the freedmen, and a wide jurisdiction over all civil and criminal cases in which local laws made an unjust discrimination between the races. The bill passed the Senate and House, by the full party majority. It was sent to the President, February 10, 1866, and nine days later he returned it with a veto message, calmly and ably argued. He objected to the bill as a war measure after peace had been proclaimed. He took exception to the intrusion of military authority upon the sphere of the civil courts, and to the extension of Federal authority in behalf of black men beyond what had ever been exercised in behalf of white men. The message was strong enough to win a few of the orthodox Republicans, including ex-Governor Morgan of New York, and the two-thirds vote necessary to carry the bill over the veto could not be gained.

Up to this time there seems reason to believe that while the Republicans in Congress were firm in claiming for that body a decisive voice in reconstruction, yet a majority of them were more favorable to the policy of President Johnson than to that of Sumner and Stevens. But now, upon the necessity of safeguarding the freedmen by exceptional measures in a wholly exceptional time, the preponderance of conviction turned against him in Congress and in the country. His own acts quickly converted that first opposition into hostility and alarm.

Until now President Johnson, whatever dissent he might provoke, had appeared as a dignified statesman. But three days after his veto, on February 22—Washington's birthday—a cheering crowd called the President to the balcony of the White House. They heard a speech,—how different from what Lincoln had spoken in the same place in the previous April. Johnson was exhilarated by his success, forgetful that he still faced a hostile majority in Congress, exasperated by opposition, and roused by the shouts of the crowd,—and his native passion and coarseness came out. Sumner had been severe in his language; he had likened President Johnson to President Pierce in the Kansas days, and hinted a family resemblance to Pharaoh of Egypt. Wendell Phillips was in his native element of denunciation. Now the President declared to his applauding hearers that he had against him men as much opposed to the fundamental principles of the government, and he believed as much laboring to pervert or destroy them, as had been the leaders of the rebellion,—Davis, Toombs, and their associates. To the responsive cheers, and the cry for names, he answered by naming Stevens, Sumner and Phillips. He rehearsed his rise from tailor to President, and declared that a ground swell, an earthquake of popular support, was coming to him. His speech brought surprise and dismay to the country. It fanned into hot flame the opposition between President and Congress. In vain did John Sherman,—who had conferred with the President in the summer, and thought highly of his patriotism—now hold out the olive branch in the Senate. A keen observer at Washington, Samuel Bowles,—who had held a friendly attitude toward both the President and the party leaders,—now wrote, February 26, "Distrust, suspicion, the conceit of power, the infirmities of temper on both sides, have brought affairs to the very verge of disorder and ruin." He dissuaded from taking sides in the quarrel; there was too much right and too much wrong on both sides. He urged, March 3,—and no doubt he represented the best sentiment of the country: "The great point is to secure protection and justice for the freedmen. . . . For the present the Freedmen's Bureau, military occupancy, and United States courts, must be our reliance. . . . We want the President firm and resolute on this point, and we want to arouse the better class of the Southern people to do their duty in the same regard."

The weakness of the veto message on the Freedmen's Bureau bill had been the absence of any solicitude for the welfare of the freedmen; constitutional theory seemed to wholly supersede the practical necessity of the case. Now Congress again approached the matter in the Civil Rights bill, carefully formulated in the judiciary committee, thoroughly debated and amended, and passed by both houses late in March. It affirmed United States citizenship for all persons born in the country and not subject to any foreign power; it declared for all citizens an equal right to make and enforce contracts, sue, give evidence, hold and sell property, etc.; full equality as to security of person and property, as to pains and penalties,—in short, complete civil equality. Original jurisdiction was given to United States courts, and to these could be transferred any case involving these subjects begun in a State court. The bill empowered the President to use the army for its enforcement. All this was under authority of the Thirteenth Amendment.

This, too, the President vetoed, as unnecessary, as employing the military arm too freely, as extending unwisely the power of the Federal Government, and as especially unwise legislation while eleven States out of thirty-six were unrepresented in Congress. But the President was now going in the face not only of the congressional majority but of the North at large, which was unmistakably opposed to leaving the freedmen with no protection against their old masters. The veto was overridden, and became a law April 9. The Freedmen's Bureau bill, somewhat amended, was again passed, this time over a veto, and became a law July 16.

It was after the decisive victory over the President on the Civil Rights bill that Congress took up the comprehensive measure which embodied its own plan of reconstruction as a substitute for the President's. That measure was the Fourteenth Amendment. It was drawn up by the reconstruction committee, of which Senator Fessenden was chairman, and probably his was the leading part in framing its provisions. The first proposition was only to make the basis of congressional representation dependent on the extension or denial of suffrage to the freedmen. This was proposed January 22, 1866, and after some weeks' discussion passed the House but failed in the Senate. It was replaced by a broader measure, which was reported April 30, debated and amended for six weeks, and finally in mid-June took the form in which it now stands in the Constitution, and was approved by Congress. It then went before the States for their action, with a tacit but strong implication that upon its acceptance and adoption the lately seceded States would be fully restored. It was in effect the plan of reconstruction first offered by Congress, as a substitute for the President's.

The first article of the amendment declares that all persons born or naturalized in the United States are citizens of the United States, and of the State wherein they reside; and that all are entitled to the equal protection of the laws. Another section guarantees the validity of the public debt, and forbids payment of the Confederate debt or payment for the emancipation of slaves. Both these articles appear at this distance of time to be beyond question or criticism. Another article apportions representation in Congress, as heretofore, according to population; but further provides that any State which denies the suffrage to any part of its adult male population, except for rebellion or other crime, shall have its congressional representation reduced in the same proportion. It will be remembered that under the old Constitution the basis of representation was fixed by adding to the total of the free population a number equal to three-fifths of the slaves. Now that the slaves had become freedmen, the representation of the old slave States would to that extent be increased. But it seemed neither just nor expedient to permit such an increase of power, unless the class on whose enumeration it was based were made bona fide citizens, and sharers in this power. If under this amendment the Southern States should choose to give the vote to the freedmen, their total representation in Congress would be raised from sixty-one to seventy. If they did not give it, their representation would fall to forty-five. There was thus offered them a strong inducement to establish impartial suffrage; while yet they were at full liberty to withhold it at the price of some diminution of power compared with communities adopting the broader principle. The reconstruction committee had listened to prominent Southerners as to the probable reception of this provision. Stephens thought his people would consider it less than their due and would not ratify it. But Lee thought that Virginia would accept it, and then decide the question of suffrage according to her preponderating interest; that at present she would prefer the smaller representation, but would hold herself ready to extend the suffrage if at any time the freedmen should show a capacity to vote properly and understandingly.

So far, the Fourteenth Amendment seems now to embody a sound statesmanship. But the remaining article must be judged by itself. It excludes from all State and national offices all those, who, having taken an official oath to support the Constitution, have afterward taken part in insurrection and rebellion. This was ingeniously framed with an appearance of justice, as if debarring from office only those who to rebellion had added perjury. But, as a matter of ethics, the breaking of official oaths is an inevitable incident of every revolution; and just as war is held to suspend in a measure the command "thou shalt not kill," so revolution must be held to cancel the obligation of official oaths. The opposite view would affix the full guilt of perjury to many leaders in the American Revolution, perhaps to Washington himself. It was not really as perjurers that the excluded class were debarred from office, but as prominent leaders in the rebellion, so marked by having previously held office. It shut out, and was so intended, a class not only very large in numbers but including the best intelligence and social leadership of the South. To exclude these men from all political leadership in the new r?gime was in flat defiance of that statesmanship, as wise as magnanimous, which Andrew and Beecher had voiced. As one New England observer put the matter, it would help matters greatly if no man favored a government for others that he would not like to live under himself; now how would it work in Massachusetts to exclude from the government the whole Republican party? Yet the Democrats in the State have ten times the knowledge, character and ability, that are possessed in the South by the elements free from stain of rebellion.

The disqualification, to be sure, was removable in each case by a two-thirds vote of Congress. But it could not be foreseen how Congress would be disposed; and in fact, the President's pardon, so freely given, had been by Congress expressly deprived of any political value; being held to exempt only from legal pains and penalties. The new exclusion, if adopted, could hardly work other than disastrously. And, being offered, as the entire amendment necessarily was, for acceptance or rejection by all the States, this provision was as well suited to repel the South as if it had been designed for that purpose. It offended that loyalty to their tried leaders in stress and storm which is one of the best traits in a people's character. Compare it with Beecher's saying of a few months earlier, "I think it to be the great need of this nation to save the self-respect of the South." The difference measures the degree of the mistake under which the mass of the North were still laboring. They looked upon the rebellion as a moral and personal crime. They had no comprehension of the Southern standpoint; and, sure that their own cause was just, they believed that their opponents were not only mistaken but morally guilty. As it was hardly possible to suppose the 8,000,000 to have all gone wrong out of individual perversity, the current view at the North was that Secession sprang from a conspiracy; that its leaders had secretly plotted, like Aaron Burr, and thus misled their followers. The impulse to inflict death or imprisonment or confiscation on anybody was infrequent or short-lived; the desire for such punishment lingered only in an irrational wish for vengeance on Jefferson Davis. But, if the leading class in the society and public life of the South were morally responsible for a great treason and rebellion, it might seem not only just but wise to exclude them from the new political order.

The critics of the reconstruction policy are often challenged by its defenders with the question, "But what better course can you suggest, even now?" And the immense difficulty of the problem, even as calmly viewed to-day by the closet student, may well make us charitable toward the men who, for the most part, did the best they knew under the immediate besetment of measureless perplexities and contradictions. But while we may approve of their work in the rest of the Fourteenth Amendment, with equal emphasis we may say: The mistake was great, in the amendment and later, of shutting out the very men who should have been included. Better by far would it have been to take their counsel and co-operation even beforehand in planning the work of reconstruction. Even as to that crucial point, the legislation oppressive to the freedmen, and the deeper difficulty underlying it, the ingrained Southern attitude toward the negro as an inferior being,—even as to this, something might have been accomplished had the Southern men, who went to Washington in the vain hope of immediate admission to Congress, been met by a President of Lincoln's or Andrew's calibre. Even as it was, there were signs of promise in Georgia,—so says Rhodes in his excellent History of the United States. The newly elected Governor, Judge Jenkins, a man of "universally acknowledged probity and uprightness of character" made in his inaugural address (December 14, 1865) a strong plea for the negroes who had so faithfully cared for the lands and homes and families of the soldiers in the field: "As the governing class individually and collectively we owe them unbounded kindness and thorough protection. . . . Their rights of person and property should be made perfectly secure." To like effect spoke Alexander H. Stephens, revered by all Georgians, February 22, 1866; recalling the fidelity of the slaves during the war and the debt of gratitude it created; the obligation of honor to the poor, untutored, uninformed; asking for the negroes ample and full protection, with equality before the law as to all rights of person, liberty and property. And such equality the Georgia Legislature speedily ordained. Tennessee did the like. Rhodes expresses confidence that by gentle pressure from the President and Congress, Virginia, North Carolina and Alabama could have been persuaded to similar legislation within a twelve month, and the other States would have followed.

The excluding article in the amendment was probably made as a concession by the moderate Republicans to the radicals. It replaced an article originally reported by the committee, excluding not only from office but from the suffrage all who had taken part in the Rebellion, until July 4, 1870. The article as adopted was disliked by Sherman and Wilson, the latter especially declaring his willingness to remove the disqualifications as soon as possible after a settlement had been made. In point of fact they were removed piecemeal by Congress almost as freely as President Johnson had done the like, and were ended except for a few hundred by a sweeping amnesty in 1872.

Grant said to A. H. Stephens in April, 1866, "The true policy should be to make friends of enemies." If these men, with a few others of like temper in North and South, could have settled the terms of the new order, a different foundation might have been laid. But in default of any such happy, unlikely conjuncture of the right men in the right place, it is the deep and wide tides of public opinion that largely shape events. The average Southern view of the negro, and the average Northern view of the "rebel," were the Scylla and Charybdis between which the ship of state steered its troubled voyage.

Returning now to the course of events,—Congress made it plain that the acceptance of the Fourteenth Amendment would bring the restoration of the South, not by a formal declaration, but by its action in promptly admitting Tennessee when within a month it ratified the amendment. So before the South and the country were now the two policies,—of Congress and the President,—and the summer and autumn saw a general and eager discussion. The South waited events, hoping for the President's success. In the North there was at first a marked effort to rally conservative men of both parties to his side. A great convention was held at Philadelphia, promoted by the President, Seward, Weed and Henry J. Raymond; with delegates from every State; the first day's procession led by Massachusetts and South Carolina representatives arm-in-arm; Southern governors and judges heartily assenting to the declaration that not only is slavery dead, but nobody wants it revived; and with cordial indorsement of the President's reconstruction policy.

There was a counter-convention at Pittsburg; there were "soldiers' and sailors' conventions" on both sides. From the Cabinet three members, Speed, Denison and Harlan, resigned because their convictions were with Congress; but Stanton remained as Secretary of War, though he was now a bitter opponent of the President,—a safeguard over the army, as the radical leaders considered him, and by his attitude and natural temper a constant exasperation to his nominal chief. A fierce and bloody riot in New Orleans, of which the precise causes were obscure, but in which the negroes were the sufferers, heightened the Northern anxiety as to the general situation.

The popular tide evidently ran with Congress, yet Johnson had the promise of very respectable support until he threw it away. His extempore expressions suggested an overweening view of his own position. To the committee reporting to him the Philadelphia convention, he said, "We have seen hanging upon the verge of the government, as it were, a body called, or which assumes to be, the Congress of the United States—but in fact a Congress of only a part of the States." In September he made a tour of the Northern States, taking in his train Secretaries Seward and Welles, with Grant and Farragut;—"swinging round the circle," he called his trip. He made addresses in the principal cities, in which he denounced his opponents, sometimes with vulgar abuse, bragged of his own rise from tailor to President, and bandied words with the mob. He shamed many of the men of character—Beecher among them—who had viewed him with favor. The tide turned overwhelmingly against him. The November election returned a Congress consisting in the House of 143 Republicans to 49 Democrats, with a Senate of 42 Republicans to 11 Democrats.

It was like the hand of Nemesis that the South, led to crushing defeat by its slave-holding aristocracy, should now have its interests sacrificed through the characteristic faults of one of its poor whites,—his virtues overborne by his narrow judgment, uncontrolled temper and coarse speech.

Warned by the election, the South might well have accepted the Fourteenth Amendment as the price of its restoration. But it failed to read the handwriting on the wall. It could not yet brook acquiescence in the exclusion of its old leaders, and the alternative of negro suffrage or reduced power in Congress. The pride of race, the unquenched spirit of the "lost cause," prompted it to stand out for better terms. During the autumn and winter of 1866-7 the lately seceded States, except Tennessee, rejected the amendment. So failed the first congressional plan of reconstruction, as the President's earlier plan had failed. And now there was small hesitation or delay in framing and enforcing the final plan.