CHAPTER VI

THE RECONSTRUCTION LEGISLATION

WHEN the Thirty-ninth Congress met on December 4, 1865, Speaker Schuyler Colfax could say that although the last Congress concluded with a "storm-cloud hovering over us, after nine months' absence Congress resumes its legislative authority in these council halls rejoicing that from shore to shore in our land there is peace." A storm-cloud of a different nature but hardly less portentous was not long in coming up. The policy of Lincoln and Johnson had never been satisfactory to Congress. We remember the reconstruction act of 1864 which Lincoln pocketed and the Wade-Davis manifesto in reply to his proclamation. The electors had sustained the president, but now there was a different president and circumstances might bring a different result. The legislative branch had been dwarfed during hostilities and Congress was not disposed to submit further to being thrust into the background. If during the war the executive became practically the whole government, the other branches merely registering its decrees, the return of peace was to present a different picture, the more particularly as Johnson did not enjoy the prestige of Lincoln. There was a chance for a reaction, and, if the congressional leaders could control it, the reaction would be toward government by the legislature. This movement might become as great as had been the previous tendency toward executive

supremacy.

President Lincoln, as we remember, had attempted during the Civil War to reorganize such of the States as came under Federal military control, by recognizing a loyal electorate, that is, one that should take the oath of allegiance to the United States and declare the abolition of slavery, but otherwise conform to the laws in force at the time of secession. Lincoln's theory was that the general government had no power to interfere with the civil government of a State except possibly to remove conditions caused by the existence of war. The "Lincoln States" were much criticised as being the offspring of military rule, and were no doubt subject to criticism in this respect. But this was a necessity of the situation.

President Johnson pursued the same plan except that on the one side he did not think it necessary to act by a onetenth vote after the whole South had surrendered, and on the other he excluded a larger number of classes from the franchise. The principle, however, was the same under both presidents, that is, that the general government could not prescribe constitutions for the States even after people of those States had been in insurrection. The State was considered as an existing entity apart from its people; they might be insurgents, but the State had never gone out of the Union. The disloyalty of most of its people might put the State out of its proper relation to the Union, but the State still existed in the persons of its loyal citizens. The necessities of war made more changes necessary than remained on the return of peace and so the word restoration would be more appropriate to Johnson's plan, just as reorganization would be to that of Lincoln. The phraseology indicated only a question of degree.

On the last day of Lincoln's life, at a Cabinet meeting, Stanton proposed a military government to embrace Virginia and North Carolina until elections could be held to frame proper constitutions. The secretary's object was to preclude the necessity of using the old legislatures, a plan which the president was supposed to have in mind.

Objection was made to combining two States, and the president directed the secretary to divide the project in this regard, and as to Virginia to recognize the Pierpoint government.

The Sunday after Lincoln's death Stanton held a conference with Senators Sumner and Dawes and the Speaker of the House, Colfax, who made certain changes in the plan, and on the same day was held the first Cabinet meeting under Johnson. Stanton said copies had not been made of the divided project ordered and the subject was therefore laid over. Before the matter was taken up again some of the Southern governors had endeavored to call their legislatures together, and it was at Stanton's command that the generals in the different districts dispersed the governors and legislatures.

Stanton at Johnson's request sent copies of his plan to members of the Cabinet and on May 8th the scheme for Virginia was taken up, recognizing Pierpoint only to the extent of requesting that governor to take measures for the reëstablishment of a State government and the election of officers. The Cabinet changed the form into an executive order of nine sections, as finally issued, fully recognizing the Pierpoint government as that of Virginia.

As to Arkansas, Louisiana and Tennessee, no great variation from this plan was required, but when on May 9th North Carolina was taken up, there was presented the case of a State which had no loyal government of any kind to be recognized. It was therefore even more carefully considered. Stanton's plan called for the appointment of a military governor to maintain order and hold elections for a constitutional convention, but otherwise followed the Virginia precedent, including the enforcement of Federal laws by the different departments, and went on to provide that "loyal citizens of the United States residing within the State of North Carolina may elect members of the

State convention."

On consideration "provisional" was substituted for "military" governor, and on reaching the clause as to loyal

citizens, Welles, secretary of the navy, asked its meaning. Then came the admission by Stanton that it was intended to embrace whites and blacks, but he did not admit, what was known to Welles, that the clause was inserted at the conference with Sumner, Dawes and Colfax on the day after Lincoln's death. On a vote taken, Stanton, Attorney General Speed, and Postmaster General Dennison voted in favor of negro suffrage. Opposed to this, because the Federal government had no power to prescribe an electorate, were Secretaries McCulloch, Welles and Usher. Johnson expressed no opinion and the matter was not then decided.

It was not taken up again until the 24th, when the president submitted his own plan of reconstruction of North Carolina, following Lincoln's closely. This was adopted by the Cabinet without objection, in the form in which we have seen it issued. He retained the expression as to loyal citizens, but, by requiring also the qualifications prescribed by the Constitution and laws of North Carolina at the date of secession, eliminated entirely any question of negro suffrage. Stanton himself was to testify later that "the objection of the president to throw the franchise open to colored people appeared to be fixed, and I think every member of the Cabinet assented to the arrangement as it was specified in the proclamation." The importance of this action as to North Carolina consisted in the fact that proclamations identical, except as to the name of the provisional governor, were issued in rapid succession as to the other six Southern States whose condition was similar. Johnson, it was true, suggested to the Mississippi convention, as well as to others, that extending the elective franchise to persons of color who could read and write and owned real estate valued at $250 would be expedient, but he did not insist upon it as he did on annulling the ordinance of secession, repudiation of the rebel debt, and abolition of slavery. It was not adopted, in fact hardly considered, by any of the Southern States, and the president was committed to the view that this was a matter for the States exclusively.