CHAPTER EIGHTEEN:
The Military Occupation of the Southern States
A State of Non-Flagrant War Continues
In 1868, Henry Clay Dean, a Democrat lawyer from Iowa, demonstrated that not all men North of the Mason-Dixon line had been fooled by Republican rhetoric or that of their late puppet, Abraham Lincoln:
The war between the States of the Union was not a riot. It was deliberate, systematic and orderly upon the part of the Southern States. It was not an insurrection or rebellion, everything was done in subordination to the law and sovereign power of the States, in which it transpired with no more of violence than is common to warfare. It was not a revolution. It changed none of the organic laws of the States; the people armed themselves according to law to repel a threatened invasion of their country, overthrow of their government and violations of their political, legal and social rights in which they failed, and are now realizing their worst anticipated fears.
It was a war between independent States, in violation of the Constitution of the United States, as interpreted by its framers; by the Supreme Court, its legal exponent and the statesmen and publicists, contemporary with its existence.
The pretext for the war was the preservation of the Union — an organized Union fighting against organized States, the whole destroying its parts was the monstrous absurdity [emphasis in original].(1)
Of course, by 1865, none of these things mattered. The Northern Radicals had achieved the revolution they had hoped for and had overthrown the Constitution they hated with such ferocity, leaving the Southern States and all hope of restoring "the Union as it was" to lie prostrate at their feet.
Because there had never been a congressional declaration of war, Andrew Johnson, on 2 April 1866, simply issued a Presidential Proclamation declaring the "insurrection" in all the Southern States except Texas to be "at an end, and henceforth to be so regarded."(2) On the twentieth of August of that same year, Johnson proclaimed that the "insurrection" was "at an end" in Texas as well, and that "peace, order, tranquility, and civil authority now exist, in and throughout the whole of the United States of America." The reader should recall Joint Resolution of 25 July 1861, in which Congress declared, "This war is not prosecuted upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution and all laws made in pursuance thereof and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease." Based on these assurances, Johnson's proclamations should have ended all hostilities against the Southern States and restored them to their former place in the Union with their "dignity, equality, and rights... unimpaired." However, as stated by the Forty-Third Congress in 1874, the "state of war" continued:
War was continued in those States until the President's proclamation of August 20, 1866 proclaimed "the insurrection at an end." A "state of war" continued beyond this time, more or less extensive in its theater — "non flagrante bello sed nondum cessante bello" (Mrs. Alexander's Cotton, 2 Wall. 419).
A state of war does not cease with actual hostilities. "Military government may legally be continued bello nondum cessante, as well as flagrante bello".... It is easier to provoke a civil war than to restore the confidence without which peace returns but by name. Under these circumstances the reasons which justify martial law subsist.
The existence of what is called "a state of war" after flagrant war has ceased is recognized on the same principle as the personal right of self-defense. This is not limited to the right to repel an attack; but so long as the purpose of renewing it remains — the animus revertendi — so long as the danger is imminent or probable, the party assailed may employ reasonable force against his adversary to disarm and disable him until the danger is past, and in doing this and judging of its necessity precise accuracy as to the means is not required, but only the exercise of reasonable judgment in view of the circumstances.
If after the forces under the command of Lee surrendered in April, 1865, the United States forces had been immediately withdrawn, the rebellion would possibly have resumed its hostile purposes. It was upon this theory, coupled with the constitutional duty of Congress to "guarantee to each State a republican form of government," that the reconstruction acts were passed, and military as well as civil measures adopted in pursuance of them.(3)
The people of the South, economically devastated and physically and emotionally exhausted by four tragic years of war, resigned themselves to their defeat and attempted to function as States within the de facto military nation which had been forced upon them. In his report to President Johnson of 18 December 1865, General Grant testified to this fact: "I am satisfied the mass of thinking men in the South accept the present situation of affairs in good faith. The questions which have hitherto divided the sentiment of the people of the two sections — slavery and State-rights, or the right of the State to secede from the Union — they regard as having been settled forever by the highest tribunal, that of arms, that man can resort to."(4)
It is beyond all argument that, despite the above assertion of the Forty-Third Congress, what the President accepted as "a republican form of government" was indeed in place in each of the former "rebel" States during this period. Even the Supreme Court declared in reference to each of the Southern States, "The obligation of the state, as a member of the Union, remained perfect and unimpaired. It certainly follows that the state did not cease to be a state, nor her citizens to be citizens of the Union."(5) It was upon this basis that the Thirteenth Amendment was ratified, abolishing slavery throughout the several States.(6) However, when the newly seated Thirty-Ninth Congress proposed the Fourteenth Amendment, with its attempted elevation of the freed slaves to a political superiority over their former masters, many of whom had been disfranchised by their conquerors, Southerners once again thought it their duty to protect their posterity from the encroachments of a political party bent only on the satiation of its own lust for power. We will take a closer look at the revolutionary nature of the Fourteenth Amendment in the next chapter, but suffice it to say for now, the amendment failed to receive the approval of the required three-fourths of the States.(7) The following words of Republican Speaker of the House, Schuyler Colfax, aptly demonstrated the attitude of the Radicals toward the former "rebel States":
The first session of the Thirty-ninth Congress proposed, as their plan of Reconstruction, a Constitutional Amendment. It was a bond of public justice and public safety combined, to be embodied in our national Constitution, to show to our posterity that patriotism is a virtue and rebellion is a crime. These terms were more magnanimous than were ever offered in any country under like circumstances. They were kind, they were forbearing, they were less than we had a right to demand; but in our anxiety, in our desire to close up this question, we made the proposition. How was it received? They trampled upon it, they spat upon it, they repudiated it, and said they would have nothing to do with it. They were determined to have more power after the rebellion than they had before....
Though we demand no indemnity for the past, no banishment, no confiscations, no penalties for the offended law, there is one thing we do demand, there is one thing we have the power to demand, and that is security for the future, and that we intend to have, not only in legislation, but imbedded in the imperishable bulwarks of our national Constitution, against which the waves of secession may dash in future but in vain. We intend to have those States reconstructed on such enduring corner-stones that posterity shall realize that our fallen heroes have not died in vain.(8)
In his book Twenty Years of Congress, James G. Blaine chose not to hide behind such self-righteous platitudes and instead got right to the point:
In the original Constitution only three-fifths of the slaves were permitted to be enumerated in the basis of apportionment. Two-fifths were now added and an increase of political power to the South appeared probable as the somewhat startling result of the civil struggle. There was an obvious injustice in giving to the white men of the South the right to elect representatives in Congress apportioned to their section by reason of the four and a half millions of negroes, who were enumerated in the census but not allowed to exercise any political power. By permitting this, the Confederate soldier who fought to destroy the Union would be endowed with a larger power of control in the National Government than the loyal soldier who fought to maintain the Union. To allow this to be accomplished and permanently incorporated in the working of the Government would be a mere mockery of justice, the utter subversion of fair play between man and man.(9)
It could not have been made more evident that Reconstruction was merely the offspring of "a fear that... the Confederates of the South should unite with the Democratic opponents of the war in the North and thus obtain control of the Government...."(10) In other words, the Republicans saw their precarious edifice, erected as it was on the graves of 600,000 Americans, about to come crashing down around them, bringing to naught over thirty years of carefully planned agitation and intrigue. This was the real reason why, upon rejecting the "magnanimous" terms set before them — the enfranchisement of the former slaves who, under the influence of agents of the Freedmen's Bureau and the Union League, were already being enticed into the Radical camp — the Whites of the South had to be disfranchised and their States destroyed. Thaddeus Stevens boldly asserted that the Southern States "ought never to be recognized as valid States, until the Constitution shall be amended... as to secure perpetual ascendancy" to the Republican party.(11) Such a goal was realized in the so-called Fourteenth Amendment.
In this battle for "perpetual ascendancy," the Negroes themselves were not the primary concern of the Republicans beyond their capacity to be used as pawns on a colossal political chessboard. This much was unabashedly admitted even by Lyman Trumbull, Senator from Illinois and author of the Civil Rights Act, when he declared, "There is a great aversion in the West — I know it is so in my State — against having free Negroes come among us. Our people want nothing to do with the Negro. We the Republican Party are the White man's party."(12) Some of the Abolitionists, however, who had a sincere, albeit fanatical, interest in the Black man's welfare, were less than enthusiastic with the path down which the dominant party had begun to travel. For example, a thoroughly disillusioned Wendell Phillips complained, "The Republican party is not inspired with any humane desire to protect the negro. It uses the bloody shirt for office, and once there, only laughs at it. Today our greatest danger is the Republican party. Wolves in sheep's clothing! Hypocrites! I hail their coming defeat, looking forward to it as the dawning of a glorious day."(13)
The Republicans' Theory of "State Suicide"
When all the presidentially-reconstructed Southern States except Tennessee rejected the Fourteenth Amendment, the doctrine of "State suicide" was resurrected in retaliation. This position, sometimes also referred to as the "forfeited rights" theory, had been propagated throughout the war by Charles Sumner and some of the other Radicals in Congress to justify their demands for a complete subjugation of the South. Founded squarely upon the historical fallacies of Story and Webster, this theory insisted that the several States were "so completely interlinked with the Union" that they were "forever dependent thereupon," and that the Constitution "must forever continue the supreme law thereof, notwithstanding the doings of any pretended governments acting singly or in confederation, in order to put an end to its supremacy."(14) According to Sumner:
It is sometimes said that the [Southern] States themselves committed suicide, so that as States they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under [Article IV, Section 2, Clause 2 of] the Constitution. This assumption is founded on the fact that, whatever may be the existing governments in these States, they are in no respect constitutional, and since the State itself is known by the government, with which its life is intertwined, it must cease to exist constitutionally when its government no longer exists constitutionally....
From approved authorities it appears that a "State"... may lose its life. Mr. Phillimore, in his recent work on International Law, says: "A State, like an individual, may die," and among the various ways, he says, "by its submission and donation of itself to another country." But in the case of our Rebel States there has been a plain submission and donation of themselves — effective, at least, to break the continuity of government, if not to destroy that immortality which has been claimed. Nor can it make any difference, in breaking this continuity, that the submission and donation, constituting a species of adornment, were to enemies at home rather than to enemies abroad — to Jefferson Davis rather than to Louis Napoleon. The thread is snapped in one case as much as in the other....
But again it is sometimes said, that the States, by their flagrant treason, have forfeited their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of law known to the States, that it was carried forth not only by individuals, but also by States, so far as States can perpetuate treason; that the States pretended to withdraw bodily in their corporate capacities — that the Rebellion, as it showed itself, was by States as well as in States; that it was by the governments of States as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations as well as by the individuals of whom they were composed....(15)
During a speech in the House of Representatives on 8 January 1863, Thaddeus Stevens expressed much the same opinion, "The South must be punished under the rules of war, its land confiscated.... These offending States were out of the Union and in the role of a belligerent nation to be dealt with by the laws of war and conquest.... And I hold and maintain that with regard to all the Southern states in rebellion... the Constitution has no binding influence, and no application."(16) Following the downfall of the Confederacy, his views were the same:
Four years of bloody and expensive war, waged against the United States by eleven States, under a government called the "Confederate States of America," to which they acknowledged allegiance, have overthrown all governments within those States which could be acknowledged as legitimate by the Union. The armies of the Confederate States having been conquered and subdued, and their territory possessed by the United States, it becomes necessary to establish governments therein which shall be republican in form and principles and form a more "perfect Union" with the parent government....
The slave power made war upon the nation. They declared the "more perfect Union" dissolved — solemnly declared themselves a foreign nation, alien to this republic; for four years were in fact what they claimed to be. We accepted the war which they tendered and treated them as a government capable of making war. We have conquered them, and as a conquered enemy we can give them laws; can abolish all their municipal institutions and form new ones.... If the rebel States have never been out of the Union, any attempt to reform their State institutions, either by Congress or the President, is rank usurpation.(17)
On 18 December 1865, two weeks into the first session of the Thirty-Ninth Congress, Stevens went on to say:
Unless the law of nations is a dead letter, the late war between two acknowledged belligerents severed their original compacts, and broke all the ties that bound them together. The future condition of the conquered power depends on the will of the conqueror. They must come in as new States or remain as conquered provinces. Congress — the Senate and House of Representatives, with the concurrence of the President — is the only power that can act in the matter....
If the so-called "confederate States of America" were an independent belligerent, and were so acknowledged by the United States and by Europe, or had assumed and maintained an attitude which entitled them to be considered and treated as a belligerent, then, during such time, they were precisely in the condition of a foreign nation with whom we were at war; nor need their independence as a nation be acknowledged by us to produce that effect....
...[I]t is something worse than ridiculous to hear men of respectable standing attempting to nullify the law of nations, and declare the Supreme Court of the United States in error, because, as the Constitution forbids it, the States could not go out of the Union in fact....
The theory that the rebel States, for four years a separate power and without representation in Congress, were all the time here in the Union, is a good deal less ingenuous and respectable than the metaphysics of Berkeley, which proved that neither the world nor any human being was in existence. If this theory were simply ridiculous it could be forgiven; but its effect is deeply injurious to the stability of the nation. I can not doubt that the late confederate States are out of the Union to all intents and purposes for which the conqueror may choose so to consider them.
But on the ground of estoppel, the United States have the clear right to elect to adjudge them out of the Union. They are estopped both by matter of record and matter in pais. One of the first resolutions passed by seceded South Carolina in January, 1861, is as follows: "Resolved, unanimously, That the separation of South Carolina from the Federal Union is final, and she has no further interest in the Constitution of the United States; and that the only appropriate negotiations between her and the Federal Government are as to their mutual relations as foreign States." Similar resolutions appear upon all their State and confederate government records. The speeches of their members of Congress, their generals and executive officers, and the answers of their government to our shameful suings for peace, went upon the defiant ground that no terms would be offered or received except upon the prior acknowledgment of the entire and permanent independence of the confederate States. After this, to deny that we have a right to treat them as a conquered belligerent, severed from the Union in fact, is not argument but mockery.(18)
Stevens further described the Southern States as "dead carcasses," and declared that just as "dead men cannot raise themselves," so "dead states cannot restore their own existence 'as it was.'"(19) It should be remembered that the North's premise for fighting the war was that the Southern States could never leave the Union and that they were therefore merely "in rebellion against the United States." Now it appeared that the capricious demands of lawless fanaticism could accomplish what lawful State conventions could not. The secession ordinances voted on and passed by the Southern people six years previously had been declared "legally void" by Lincoln, but a simple wave of the Republican hand was sufficient to expel those States from the "indivisible" Union. However, if Stevens was indeed correct in asserting that the State legislatures established under presidential Reconstruction were "without any legal authority," "simulated legislative bodies," and "incapable of political action," then what business did Congress have in forwarding the Fourteenth Amendment to these "extinct States"(20) for their approval? Furthermore, how could the Thirteenth Amendment, the ratification of which depended upon these same States, be viewed as anything but an utter nullity? In other words, the Southern States were considered by Congress as being in the Union when they accepted the abolition of slavery, but their status was thereafter denied when they rejected the granting of citizenship to the former slaves. If ever evidence was needed of the arbitrary and fanatical nature of a faction in possession of military power, the post-bellum antics of the Republican party are an inexhaustible source.
A Declaration of War Against State Sovereignty
On 21 December 1865, Henry J. Raymond, one of the "conservative" Republican Representatives from New York, declared:
...I think we have a full and perfect right to require certain conditions, in the nature of guarantees for the future, and that right rests, primarily and technically, on the surrender we may and must require at their hands. The rebellion has been defeated. A defeat always implies a surrender, and, in a political sense, a surrender implies more than the transfer of the arms used on the field of battle. It implies, in the case of civil war, a surrender of the principles and doctrines, of all the weapons and agencies, by which the war has been carried on. The military surrender was made on the field of battle, to our generals, as the agents and representatives of the Commander-in-Chief of the armies of the United States....
Now, there must be at the end of the war, a similar surrender on the political field of controversy. That surrender is due as an act of justice from the defeated party to the victorious party. It is due, also, and we have a right to exact it, as a guarantee for the future. Why do we demand the surrender of their arms by the vanquished in every battle? We do it that they may not renew the contest. Why do we seek, in this and all similar cases, a surrender of the principles for which they fought? It is that they may never again be made the basis of controversy and rebellion against the Government of the United States.
Now, what are those principles which should be thus surrendered? The principle of State sovereignty is one of them. It was the corner-stone of the rebellion — at once its animating spirit and its fundamental basis. Deeply ingrained as it was in the Southern heart, it must be surrendered. The ordinances in which it was embodied must not only be repealed, the principle itself must be abandoned, and the ordinances, so far as this war is concerned, be declared null and void, and that declaration must be embodied in their fundamental constitutions.(21)
What we see in the above speech is an open admission that the South had not been fighting for slavery at all, as has been asserted ad nauseum by revisionist historians for well over a century, but for the preservation of the sovereignty of the several States. The principles which were thus demanded of the "Southern heart" to surrender were simply the principles which the American founding fathers embodied in the constitutional compact of the Union and bequeathed to their posterity. The Republicans would not be satisfied until this repudiation was written into the State constitutions themselves and they made it clear that the Southern people would not be allowed to participate in the political affairs of the "new nation" until they had done so.
On such a convoluted political stage were played out the horrors of what came to be known as the Reconstruction period, which has rightly been referred to as "the darkest page in the saga of American history,"(22) and "a time of party abuse, of corruption, [and] of vindictive bigotry."(23) As was stated in the February 1903 issue of Scribner's Magazine, "Lincoln has made a precedent which future rulers will imitate. What Lincoln excused and defended will be assumed as the right for rulers to follow." The "war powers" used by Lincoln to justify war on the South in 1861-1865 were the same powers invoked by the Congress to justify the second war against the South of 1867-1877. Beginning with the first Reconstruction Act, which was passed on 2 March 1867, the Southern States were "divided into military districts and made subject to the military authority of the United States." According to Thaddeus Stevens, "It was intended simply as a police bill to protect the loyal men from anarchy and murder, until this Congress, taking a little more time, can suit gentlemen in a bill for the admission of all those rebel States upon the basis of civil government."(24) However, the insidious nature of the Act was more honestly declared by James Garfield who declared that it "lays its hands on the rebel governments, taking the very breath of life out of them... [and] it puts the bayonet at the breast of every rebel in the South, and leaves in the hands of Congress utterly and absolutely the work of reconstruction."(25)
Andrew Johnson stated the following in his 2 March 1867 veto of the pending bill:
The bill places all the people of the ten States therein named under the absolute domination of military rulers....
The military rule which it establishes is plainly to be used, not for any purpose of order or for the prevention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that they are opposed, and upon which they have an undeniable right to exercise their own judgment.
I submit to Congress whether this measure is not, in its whole character, scope, and object, without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure....
The power thus given to the commanding officer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law.... He alone is permitted to determine what are rights of person or property, and he may protect them in such way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hindrance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence; there is indeed no provision by which he is authorized or required to take any evidence at all. Every thing is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. He is not bound to keep any record or make any report of his proceedings. He may arrest his victims wherever he finds them, without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do.(26)
In his official opinion of 12 June 1867, Attorney General Henry Stanbery substantiated the President's arguments:
We see, first of all, that each of these States is "made subject to the military authority of the United States"....
There can be no doubt as to the rule of construction according to which we must interpret this grant of power. It is a grant of power to military authority, over civil rights and citizens, in time of peace. It is a new jurisdiction, never granted before, by which, in certain particulars and for certain purposes, the established principle that the military shall be subordinate to the civil authority is reversed....
[This act] places the military commander on the same footing as the Congress of the United States. It assumes that "the paramount authority of the United States at any time to abolish, modify, control, or supersede," is vested in him as fully as it is reserved to Congress. He deems himself a representative of that paramount authority. He puts himself upon an equality with the law-making power of the Union; the only paramount authority in our government, so far, at least, as the enactment of laws is concerned. He places himself on higher ground than the President, who is simply an executive officer. He assumes, directly or indirectly, all authority of the States, legislative, executive, and judicial, and in effect declares, "I am the State"....
A person charged with crime in any of these military districts has rights to be protected, rights the most sacred and inviolable, and among these is the right of trial by jury, according to the laws of the land. When a citizen is arraigned before a military commission on a criminal charge he is no longer under the protection of the law, nor surrounded with those safeguards which are provided in the Constitution. This act, passed in a time of peace, when all the courts, State and Federal, are in the undisturbed exercise of their jurisdiction, authorizes, at the discretion of a military officer, the seizure, trial, and condemnation of the citizen. The accused may be sentenced to death, and the sentence may be executed without a judge.... Military and executive authority rule throughout in the trial, the sentence, and the execution. No habeas corpus from any State court can be invoked; for this law declares, that "all interference, under color of State authority, with the exercise of military authority under this act, shall be null and void."(27)
The Democrats in Congress also protested against the bill as an unconstitutional peace-time extension of martial law over nearly one-half of the country. Speaking in behalf of the House minority, Charles A. Eldridge of Wisconsin voiced his objections as follows: "...[W]e are conscious that no effort of ours can prevent its passage, and the consequent accomplishment of a dissolution of the Union, and the overthrow and abandonment of our constitution of government. We can only, in the name of the Constitution, in the name of the republic, in the name of all we hold dear on earth, earnestly, solemnly protest against this action of this Congress."(28) Francis C. LeBlond of Ohio said that, if passed, the bill would prove to be "the death-knell of republican liberty upon this continent" and that it would "strike a death-blow to this Government."(29) Over in the Senate, Willard Saulsbury congratulated the President for vetoing "the most iniquitous bill that ever was presented to the Federal Congress," and went on to say, "I cannot... refrain from the expression of the hope that there may be no man, and that there may be no man within the limits of these ten States, who will participate in his own disgrace, degradation, and ruin; let them maintain their honor.... [I]f there be wrath in the vials of the Almighty, if there be arrows of vengeance in His quiver, such iniquity and injustice can not finally prove successful."(30)
Conditions in the South During Reconstruction
The above warnings went unheeded by the Radicals and the Reconstruction Act was "forced through... under whip and spur"(31) over the President's veto on the very same day the latter was delivered. The dire results of the Act, and the supplemental Acts which followed it, were precisely as predicted. According to the laws of war, "The commander of the invading, occupying, or conquering army rules the country with supreme power, limited only by international law and the orders of his government."(32) In the words of Ulysses S. Grant, who was one of the military commanders placed into the field by the Act, "The law makes the district commanders their own interpreters of their power under it."(33) Colonel C.C. Gilbert, who was given command of Camden, Arkansas, drew from this the conclusion that "the military are not the servants of the people, but their masters."(34) Not only were the elected civil and judicial officers of the Southern States removed by order of these commanders and new and unelected men installed in their places, but the functions of the State legislatures were also suspended and their constitutions annulled. Anyone who dared to protest against these injustices was liable to "be punished by imprisonment at hard labor for a term not exceeding ten years nor less than two years, in the discretion of the court having jurisdiction thereof."(35) Under such a despotic rule, large numbers of Southern citizens were arrested daily on the most frivolous charges, and sometimes on no charge at all, and imprisoned in such horrible sites of torture as the Dry Tortugas:
At the Dry Tortugas the prisoners' heads are shaved. They have to labor under a torrid sun upon a sand bank in the midst of the ocean, with balls and chains about their legs. The men who command the prisoners are amenable to the laws of neither God or man. Col. Grental, a soldier, was tied up by his thumbs, and treated with every species of cruelty and barbarity. The laws are silent and newspapers dumb. The prisoner who enters the Dry Tortugas leaves liberty, justice, hope, behind him. Large numbers of young Southern men, for any or no offense, in what is called the reconstruction period, are arrested, go through the farce of a drumhead trial, presided over by men who take a fiendish delight in torturing any Southern man or woman, nearly always found guilty, and sentenced for life to the Dry Tortugas. The lips of the Alabama journals are pinned together with bayonets. Our hands are fastened in iron cuffs. We dare not speak the whole truth. If we did our paper would be suppressed, our business ruined, our wives and children brought to want.(36)
Even some Northerners were shocked at the conditions in the South during Reconstruction. For example, the New York Herald stated, "Every personal right of the citizen is invaded at once. Without any process of law whatever, a man is deprived of his liberty and thrust into a cell at the mere bidding of a political or military bully. The secrecy of the telegraph and post office is violated as no man would dare violate them in despotic France."(37)
It was during this period that the aforementioned Fourteenth Amendment of 1868 and the Fifteenth Amendment of 1870 were adopted with the aid of these newly "reconstructed" States, granting statutory citizenship to the emancipated slaves and giving them the right to vote. As pointed out by Blaine, "Only a minority of Republicans were ready to demand suffrage for those who had been recently emancipated, and who, from the ignorance peculiar to servitude, were presumably unfit to be intrusted with the elective franchise."(38) Nevertheless, despite the fact that Negroes could not vote in many of the Northern States, the harsh measures imposed upon the Southern people would continue until they had extended suffrage to the former slaves, disfranchised the majority of their White population, and then drafted new State constitutions and elected new officers based upon their new electorate. In addition, each of the new States was not only required to ratify the Fourteenth Amendment, but the Amendment had to actually become a part of the federal Constitution before military rule would be lifted and the State would "be entitled to representation in Congress."(39) Even then, the readmission of each of the States was left to the discretion of Congress. By making these demands, "the Radicals were driven to the absurd conclusion that the states could not qualify as members of the Union until after they had performed a function which only members can perform, i.e. ratify a Federal constitutional amendment."(40) It will be recalled that the States which were overthrown on the excuse that they were illegal, were the same States which had been called upon to ratify, and had actually ratified, the Thirteenth Amendment just two years earlier. As Andrew Johnson pointed out in his veto of the supplementary Reconstruction Act of 19 July 1867, "It is now too late to say that these ten political communities are not States of this Union.... [I]f this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one...."(41) In other words, if Stevens and the other Radicals were correct in their claim that the Southern States were not members of the Union, then the Thirteenth Amendment is not now a part of the Constitution. On the other hand, if the Thirteenth Amendment is to be accepted as valid, then the Fourteenth Amendment cannot be. When the circumstances are carefully considered, it will be admitted by any rational mind that both Amendments cannot be valid simultaneously.
The story of the adoption of the Fourteenth Amendment is one of the most atrocious debacles of American constitutional history. In addition to the fact that the Amendment had been, with the exception of Tennessee, uniformly rejected by the Southern States, and only thereafter "ratified" when entirely new "States" had been erected in their place by the occupying military commanders, both the States of Ohio and New Jersey subsequently reversed their positions and issued statements withdrawing their former ratification. The legislature of New Jersey declared: "The said proposed amendment not having yet received the assent of three-fourths of the States, which is necessary to make it valid, the natural and constitutional right of this State to withdraw its assent is undeniable."(42)
Because of these reversals, and the questionable nature of the reconstructed Southern States, Secretary of State William Seward, in his first proclamation of 20 July 1868, expressed some doubt as to whether the Amendment had been ratified by the required number of States. The Radicals' response was that Ohio and New Jersey did not have a right to withdraw their ratification and immediately forced a resolution through both Houses listing the purported ratification date of each State and declaring that "said fourteenth article... is declared to be part of the Constitution... and it shall be duly promulgated as such by the Secretary of State."(43) Seward capitulated to the pressure thus placed upon him and issued a second proclamation dated 28 July 1868 listing the supposed ratifications — which list differed from that of the congressional resolution — and certifying that the Amendment had "become valid to all intents and purposes as a part of the Constitution of the United States."(44) The date of Seward's second proclamation is usually that which is given to the adoption of the Fourteenth Amendment.
Senator James R. Doolittle of Wisconsin noted on 23 January 1868 that the sole purpose of Reconstruction was to "put the negro in power over the white race in all the States of the South and keep him there."(45) Once again, it needs to be stressed that the welfare of the Negro, as an end in itself, was never the primary concern of the Radicals in the Thirty-Ninth and Fortieth Congresses. Just as Johnson had warned in 1866, they used the Black man "for the attainment of [their] own political ends," and when their "fool's errand"(46) failed, they turned their backs on the freedman and left him to the mercies of a ravaged and embittered South. The following words were published in the Lemars (Iowa) Sentinel, a staunch Republican organ just a few years after Reconstruction was abandoned in the South:
The Southern brigadier wants office and place, but he is willing to fight for them, or vote for them; at the drop of the hat he will shoot and cut for them; he does not whine like a whipped cur, or demand like a beggar on horseback, as the nigger does. Let the nigger first learn to vote before he asks for office. The brazen-jawed nigger is but a trifle less assuming, insolent and imperious in his demands than the lantern-jawed brigadiers; the educated nigger is a more capacious liar than his barbarian masters ever were, or dared to be.
The greatest mistake the Republican party ever made was taking the nigger at a single bound and placing on his impenetrable skull the crown of suffrage. It is a wrong to him and to us to let him wield the ballot. The nigger is necessarily an ignoramus. The free nigger, we repeat, is a fraud.(47)
The Supreme Court Denies Jurisdiction
The constitutionality of the Reconstruction Acts was brought before the Supreme Court on several occasions. In the cases of Georgia v. Stanton and Mississippi v. Stanton, both States sought injunctive relief against the Secretary of War, Edwin M. Stanton, and Generals Ulysses S. Grant, John Pope, and E.C. Ord who were empowered by the Reconstruction Acts to establish military governments in place of the existing State governments. The bill for injunction which was filed in behalf of the State of Georgia stated in part:
A State is a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests. It has its rules. It has its rights. A republican State, in every political, legal, constitutional, and juridical sense, as well under the law of nations, as the laws and usages of the mother country, is composed of those persons who, according to its existing constitution or fundamental law, are the constituent body. All other persons within its territory, or socially belonging to its people, as a human society, are subject to its laws, and may justly claim its protection; but they are not, in contemplation of law, any portion of the body politic known and recognized as the State. On principle it must be quite clear that the body politic is composed of those who by the fundamental law are the source of all political power, or official or governmental authority.... The State has a right to maintain its constitution or political association. And it is its duty to do what may be necessary to preserve that association. And no external power has a right to interfere with or disturb it....
The change proposed by the two acts of Congress in question is fundamental and vital. The acts seize upon a large portion — whites — of the constituent body and exclude them from acting as members of the State. It violently thrusts into the constituent body, as members thereof, a multitude of individuals — negroes — not entitled by the fundamental law of Georgia to exercise political powers. The State is to be Africanized. This will work a virtual extinction of the existing body politic, and the creation of a new, distinct, and independent body politic, to take its place and enjoy its rights and property. Such new State would be formed, not by the free will or consent of Georgia or her people, nor by the assent or acquiescence of her existing government or magistracy, but by external force. Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, this is destroying that very government by force....
Independently of this principle, the forced acquiescence of the people, under the pressure of military power, would soon work a virtual extinction of the existing political society. Each aspect of the case shows that the impending evil will produce consequences fatal to the continuance of the present State, and, consequently, that the injury would be irreparable.(48)
Jeremiah Sullivan Black, who had served as Secretary of State in the Buchanan Administration,(49) further spoke in behalf of the State of Georgia:
The defendants avow their intention to take the Government of the State of Georgia into their own hands, to nullify its laws, to control the election of its officers, to deprive its people of the right to be tried by their own courts and juries, to break up its whole social organization, to destroy its existence, and reduce it and all its people to a state of complete slavery. It is not possible to conceive how a greater wrong or more grievous injury can be committed against any large body of persons. Nor is it to be pretended that these things are to be done in pursuance of any valid law. The Constitution makes Georgia a free State, and the Act of Congress, which requires it to be enslaved, is an attempt to repeal the Constitution. The counsel for the defendants will admit that the Act of Congress is unconstitutional; and if that be true, it is of no more force than if the place it occupies on the statute book were a blank. The defendants are, therefore, guilty of a great injury against Georgia, and are committing it without the show or color of legal excuse....
If these propositions be true, the State of Georgia is a proper party in this court, complaining of an attempted infraction of its rights. No defense has yet been suggested by the defendants' counsel; no denial of the facts; no assertion that they were justified by legal authority. Was an injunction ever denied in such a case?(50)
Black, of course, was in for a big surprise. Delivering the opinion of the Court, Justice Nelson wrote:
By the second section of the third article of the Constitution "the judicial power extends to all cases, in law and equity, arising under the Constitution, the laws of the United States," etc., and as applicable to the case in hand, "to controversies between a State and the citizens of another State" — which controversies, under the Judiciary Act, may be brought, in the first instance, before this court in the exercise of its original jurisdiction, and we agree that the bill filed presents a case, which, if it be the subject of judicial cognizance, would, in form, come under a familiar need of equity jurisdiction; that is, jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another, where the danger, actual or threatened, is irreparable, or the remedy at law inadequate. But, according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power: the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity.
The remaining question on this branch of our inquiry is, whether, in view of the principles above stated, and which we have endeavored to explain, a case is made out in the bill of which this court can take judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain Acts of Congress, inasmuch as such execution would annul and totally abolish the existing State Government of Georgia, and establish another and different one in its place: in other words, would overthrow and destroy the corporate existence of the State, by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained....
That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights, for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court....
Having arrived at the conclusion that this court, for the reasons above stated, possesses no jurisdiction over the subject matter presented in the bill for relief, it is unimportant to examine the question as it respects jurisdiction over the parties.
The bill must be dismissed for want of jurisdiction [emphasis in original].(51)
Chief Justice Chase added, "Without being able to yield my assent to the grounds stated in the opinion just read for the dismissal of the complainant's bill, I concur fully in the conclusion that the case made by the bill is one of which this court has no jurisdiction."(52) The petition of Mississippi was similarly dismissed.
In Article III, Section 3, Clause 1 of the Constitution — the very Article which created the Judicial Branch of the federal Government — we are told that "treason against the United States, shall consist in levying War against them...." As demonstrated in a previous chapter, and as is evident by the plural use of "United States" in this provision, treason has no constitutional meaning if not in reference to the several States. The utter destruction of a State government, especially in a presidentially-announced time of peace, would certainly qualify as "levying War" against it. The Constitution also provides in Article IV, Section 2, Clause 1 that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." To disfranchise thousands of Citizens of a State and to subjugate them to a foreign government without their consent was a clear violation of this provision. Furthermore, in Article IV, Section 3, Clause 1, that "no new State shall be formed or erected within the Jurisdiction of any other State," and finally, in Article IV, Section 4 that "the United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect them against Invasion." Would it not be reasonable to assume that these blatant violations of "the supreme Law of the Land" and an apparent attempt to abrogate the Constitution itself, was, in fact, a case in law to which the Judicial power of the Supreme Court extended? No greater example of an abrogation of duty could be given than by the above inaction of the Court during Reconstruction.
The constitutionality of the Reconstruction Acts was again brought before the Supreme Court on 2 March 1868 in the case of Ex parte William H. McCardle.(53) This time, the Court could not evade the issue by claiming a lack of jurisdiction, since the suit involved the personal liberty of a Citizen of Mississippi who had been arrested for criticizing the Reconstruction Acts and held by military force contrary to the Sixth Amendment to the Constitution. However, before the 5-4 ruling in favor of McCardle and against the validity of the Act under which he was being held could be published, the Radicals in Congress passed an Act on 27 March 1868 over the President's veto which deprived the Court of jurisdiction and forever placed the Reconstruction Acts beyond adjudication.(54) According to Robert C. Schenck of Ohio, this action was intended to "clip the wings" of the Court.(55) Other suggested measures were to "pack" the Court, to reduce the number of justices to three,(56) and to require a two-thirds majority agreement of the justices to effect a decision.(57) John A. Bingham of Ohio even went so far as to suggest the abolition of the Court altogether.(58) McCardle's petition for a writ of habeas corpus was thereafter denied and the case summarily dismissed. Robert C. Grier was the only member of the Court who had the courage to protest the strong-armed tactics of Congress and the subservient response of his fellow justices:
This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for Legislative interposition to suppress our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say... I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted.(59)
We close this chapter with the words of Andrew Johnson delivered in his address to Congress on 9 December 1868:
Upon the reassembling of Congress it again becomes my duty to call your attention to the state of the Union and to its continued disorganized condition under the various laws which have been passed upon the subject of reconstruction....
Our own history, although embracing a period less than a century, affords abundant proof that most, if not all, of our domestic troubles are directly traceable to violations of the organic law and excessive legislation. The most striking illustrations of this fact are furnished by the enactments of the past three years upon the question of reconstruction. After a fair trial they have substantially failed and proved pernicious in their results, and there seems to be no good reason why they should longer remain upon the statute book. States to which the Constitution guarantees a republican form of government have been reduced to military dependencies, in each of which the people have been made subject to the arbitrary will of the commanding general....
The Federal Constitution — the magna charta of American rights, under whose wise and salutary provisions we have successfully conducted all our domestic and foreign affairs, sustained ourselves in peace and in war, and become a great nation among the powers of the earth — must assuredly be now adequate to the settlement of questions growing out of the civil war, waged alone for its vindication. This great fact is made most manifest by the condition of the country when Congress assembled in the month of December, 1865. Civil strife had ceased, the spirit of rebellion had spent its entire force, in the Southern States the people had warmed into national life, and throughout the whole country a healthy reaction in public sentiment had taken place. By the application of the simple yet effective provisions of the Constitution the executive department, with the voluntary aid of the States, had brought the work of restoration as near completion as was within the scope of its authority, and the nation was encouraged by the prospect of an early and satisfactory adjustment of all its difficulties. Congress, however, intervened, and, refusing to perfect the work so nearly consummated, declined to admit members from the unrepresented States, adopted a series of measures which arrested the progress of restoration, frustrated all that had been so successfully accomplished, and, after three years of agitation and strife, has left the country further from the attainment of union and fraternal feeling than at the inception of the Congressional plan of reconstruction. It needs no argument to show that legislation which has produced such baneful consequences should be abrogated, or else made to conform to the genuine principles of republican government.(60)
It is undeniable that the preservation of the Union of States under the Constitution — the object for which, as Johnson noted, the late war had allegedly been waged by the U.S. Government — was completely nullified by the actions of the Thirty-Ninth and Fortieth Congresses. As we shall see in subsequent chapters, such a "disorganized condition" of the country was soon to be made permanent as the States, not only in the South, but in the North as well, were systematically overthrown.
Endnotes
1. Dean, Crimes of the Civil War, page 41.
2. Andrew Johnson, Presidential Proclamation, 2 April 1866; in Richardson, Messages and Papers of the Presidents, Volume VIII, page 3630.
3. U.S. House of Representatives, Report No. 262 (Forty-Third Congress, First Session, 26 March 1874).
4. Grant, report to Johnson dated 18 December 1865; in Senate Executive Document No. 2, page 106.
5. Texas v. White (1867), 74 U.S. 726.
6. Dyett v. Turner (1968) 439 P2d 266, 269, 20 U2d 403.
7. Leander H. Perez, "The Unconstitutionality of the Fourteenth Amendment," Congressional Record — House, 13 June 1967, pages 15641ff; Forrest McDonald, essay: "Was the Fourteenth Amendment Constitutionally Adopted?" Georgia Journal of Southern Legal History, Volume One, Number One (Spring/Summer 1991), pages 1-18.
8. Shuyler Colfax, quoted in Barnes, History of the Thirty-Ninth Congress, pages 11-12.
9. Blaine, Twenty Years of Congress, Volume II, page 189.
10. Blaine, op. cit., page 190.
11. Stevens, speech delivered on 18 December 1865; in Congressional Globe (Thirty-Ninth Congress, First Session), page 74.
12. Lyman Trumbull, quoted by Leonard P. Curry, Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (Nashville, Tennessee: Vanderbilt University Press, 1968), page 79.
13. Wendell Phillips, quoted by Edmonds, Facts and Falsehoods, pages 220-221. An interesting study of how the Republican party abandoned any interest in the Southern Negro is found in Stanley P. Hirshson, Farewell to the Bloody Shirt: Northern Republicans and the Southern Negro, 1877-1893 (Chicago, Illinois: Quadrangle Press, 1968).
14. Charles Sumner, Senate resolutions dated 11 February 1862; in Congressional Globe (Thirty-Seventh Congress, Second Session), page 737. The reader should keep in mind that this was the very same faction that had been agitating for New England's separation from the slave States prior to the actual outbreak of the war.
15. Sumner, article: "Our Domestic Relations: How to Treat the Rebel States," Atlantic Monthly (September, 1863), Volume XII, Number 71, pages 520-521.
16. Thaddeus Stevens, Congressional Globe (Thirty-Seventh Congress, Third Session), page 239.
17. Stevens, speech delivered in Lancaster, Pennsylvania on 6 September 1865; quoted by New York World, 11 September 1865.
18. Stevens, Congressional Globe (Thirty-Ninth Congress, First Session), page 73.
19. Stevens, op. cit., pages 72, 73.
20. Stevens, op. cit., page 74.
21. Henry J. Raymond, op. cit., pages 122-123.
22. Foner, Reconstruction, page xx.
23. Randall, Civil War and Reconstruction, page 689.
24. Stevens, quoted by Barnes, History of the Thirty-Ninth Congress, page 528.
25. James Garfield, quoted by Jabez L.M. Curry, The Southern States of the American Union (Richmond, Virginia: B.F. Johnson Publishing Company, 1895), page 229.
26. Johnson, veto message of 2 March 1867; in Congressional Globe (Thirty-Ninth Congress, Second Session), pages 1969-1972.
27. Opinion of Attorney General Henry Stanbery (12 Op. Atty. Gen.), 12 June 1867; in Official Opinions of the Attorney General of the United States Advising the Presidents and Heads of Departments in Relation to their Official Duties (Washington, D.C.: U.S. Government Printing Office, 1974), Volume II, pages 186, 187, 196, 199.
28. Charles A. Eldridge, quoted by Barnes, History of the Thirty-Ninth Congress, page 546.
29. Francis C. LeBlond, quoted by Barnes, op. cit., page 547.
30. Willard Saulsbury, in Congressional Globe (Thirty-Ninth Congress, Second Session), page 1973.
31. Blaine, Twenty Years of Congress, Volume II, page 292.
32. Birkhimer, Military Government, page 54.
33. Grant, quoted by Edmonds, Facts and Falsehoods, page 223.
34. Colonel C.C. Gilbert, quoted by Edmonds, op. cit., page 225.
35. Military criminal code, quoted by Stanbery, opinion, page 195.
36. Montgomery (Alabama) Mail, quoted by Edmonds, Facts and Falsehoods, pages 224-225.
37. New York Herald, quoted by Edmonds, op. cit., page 227.
38. Blaine, Twenty Years of Congress, Volume II, page 92.
39. Statutes at Large, Volume XIV, page 428-429.
40. Randall, Civil War and Reconstruction, page 787.
41. Johnson, veto of 19 July 1867 supplementary Reconstruction Act; in Richardson, Messages and Papers of the Presidents, Volume VIII, page 3738.
42. New Jersey Acts, 27 March 1868.
43. Congressional Globe (Fortieth Congress, Second Session), pages 4295.
44. Statutes at Large, Volume XV, pages 708-711.
45. James R. Doolittle, Congressional Globe (Fortieth Congress, Second Session), page 700.
46. Albion Winegar Tourgee, A Fool's Errand (New York: Fords, Howard and Hulbert, 1880).
47. Lemars (Iowa) Sentinel, 1880; quoted by Edmonds, Facts and Falsehoods, page 220.
48. Georgia v. Stanton (1867), 73 U.S. 50, 65-67.
49. The reader will remember that Black had written a lengthy legal brief in 1861 denying the power of the federal Government to militarily coerce a State. He was also the one who drafted Andrew Johnson's veto of the Reconstruction bill of 2 March 1867.
50. Georgia v. Stanton.
51. Op. cit., 75-77.
52. Op. cit., 77-78.
53. Ex parte McCardle (1868), 74 U.S. 506.
54. Statutes at Large, Volume XV, page 44.
55. Robert C. Schenck, quoted by Warren, Supreme Court in United States History, Volume II, pages 474-475.
56. Congressional Globe (Fortieth Congress, Second Session), page 484.
57. Op. cit., page 488.
58. Ellis P. Oberholtzer, A History of the United States Since the Civil War (New York: Macmillan Company, 1917), Volume I, page 465.
59. Robert C. Grier, quoted by Leander H. Perez, Congressional Record — House, 13 June 1967, page 15644.
60. Johnson, Fourth Annual Address, 9 December 1868; in Richardson, Messages and Papers of the Presidents, Volume VIII, pages 3870, 3871.
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