CHAPTER XIV
THE THIRTEENTH AMENDMENT TO THE CONSTITUTION
Donn Piatt, meeting William H. Seward on the street on the morning immediately after the issuing of the preliminary proclamation of emancipation, complimented him for his share in the act, whereupon the following colloquy ensued:
"Yes," said Seward, "we have let off a puff of wind over an accomplished fact."
"What do you mean, Mr. Seward?"
"I mean that the emancipation proclamation was uttered in the first gun fired at Sumter and we have been the last to hear it. As it is, we show our sympathy with slavery by emancipating slaves where we cannot reach them and holding them in bondage where we can set them free."70
Seward did not say this in a censorious spirit, but what he did say was true. The proclamation applied only to states and parts of states under rebel control. It did not emancipate any slaves within the emancipator's reach. Whether it freed anybody anywhere was a matter of dispute. What its legal effect would be after the war should cease, no one could say. Moreover, if the President had legal authority to issue the proclamation, then he, or a successor in office, could revoke it.
The Constitution had not given to the Federal Government power to emancipate slaves. The proclamation did not purport to rest upon any constitutional power, but upon war powers solely. But war powers last only while war lasts, and when it comes to an end, all sorts of people have all sorts of opinions as to the validity of acts done under them.
Public opinion at the time was keenly alive to doubts regarding the President's powers in this particular. Congress was flooded with petitions calling for action to confirm and validate the proclamation, but the way was beset with difficulties. Should the Constitution be amended, or would an act of Congress suffice? If the Constitution should be amended, should it abolish slavery everywhere or only in the places designated by the President? Should loyal slave-owners be compensated, as Lincoln desired? What were the chances of getting such an amendment ratified by three fourths of the states? And for this purpose should the rebel states be counted as still in the Union? If so, the requisite number might not be obtained.
The first resolution offered in Congress for such an amendment of the Constitution was proposed in the House on the 14th of December, 1863, by Representative James F. Wilson of Iowa, in these words:
Section 1. Slavery being incompatible with a free government is forever prohibited in the United States; and involuntary servitude shall be permitted only as a punishment for crime.
Section 2. Congress shall have power to enforce the foregoing section by appropriate legislation.
On the 13th of January, 1864, Senator Henderson, of Missouri, offered a resolution to amend the Constitution by adding thereto the following article:
Slavery or involuntary servitude, except as a punishment for crime, shall not exist in the United States.
These resolutions were referred to the Judiciary Committees of the respective houses.
On the 10th of February, Trumbull reported the Henderson Resolution from the Committee on the Judiciary, with an amendment in the nature of a substitute in the following terms:
Article XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
The phraseology followed pretty closely that of the Ordinance of 1787. Trumbull adopted it because it was among the household words of the nation. To become effective as a part of the Constitution, this article required the votes of two thirds of each branch of Congress and ratification by the legislatures of three fourths of the States.
Presenting the resolution to the Senate, Trumbull said that nobody could doubt that the conflict then raging, and all the desolation and death consequent thereon, had their origin in the institution of slavery; that even those who contended that the trouble was due to the agitators and abolitionists of the North must admit that if there were no slavery there would be no abolitionists. So also it must be admitted that if there had been no slavery there would have been no secession and no civil war. All the strife that had ever afflicted the nation, or all that could be considered menacing to the country's peace, had had its source in that institution. Various laws had been passed by Congress to give freedom to slaves of rebel owners and even these laws had not been executed properly. The President of the United States had issued a preliminary proclamation in September, 1862, and a final one in January, 1863, declaring all slaves under rebel control free, but not those under our control. The legal effect of such a proclamation had been a matter of dispute. Some persons held that the President had the constitutional power to issue it and that all the slaves designated were free, or would become so whenever the rebellion should be crushed; while others contended that it had no effect either de jure or de facto. It was the duty of the lawmaking power to put an end to this uncertainty by some act more comprehensive than any that had yet been adopted. Would a mere act of Congress suffice? It had been an axiom of all parties from the beginning of the Government that Congress had no authority to interfere with slavery in the states where it existed. We had authority, of course, to put down the enemies of the country and the right to slay them in battle; we had authority to confiscate their property; but did that give us authority to slay the friends of the Union, to confiscate their property, or to free their slaves? In his opinion the only conclusive and irrepealable way to make an end of slavery was by an amendment of the Constitution, and the only practical question remaining was whether the resolution recommended by the committee could secure a two-thirds vote in Congress and the concurrence of three fourths of the states. There were thirty-five states, including those in rebellion, and two territories about to become states. Presumably the affirmative votes of twenty-eight states would be required for ratification.
In this speech Trumbull gave public expression to his feelings regarding the feeble prosecution of the war to which he had given private expression in the letters to friends referred to in the preceding chapter. He said:
I trust that within a year, in less time than it will take to make this constitutional amendment effective, our armies will have put to flight the rebel armies. I think it ought to have been done long ago. Hundreds of millions of treasure and a hundred thousand lives would have been saved had the power of this republic been concentrated under one mind and hurled in masses upon the main rebel armies. This is what our patriotic soldiers have wanted and what I trust is now soon to be done. But instead of looking back and mourning over the errors of the past, let us remember them only for the lessons they teach for the future. Forgetting the things which are past, let us press forward to the accomplishment of what is before. We have at last placed at the head of our armies a man in whom the country has confidence, a man who has won victories wherever he has been, and I trust that his mind is to be permitted, uninterfered with, to unite our forces, never before so formidable as to-day, in one or two grand armies, and hurl them upon the rebel force.71
The feeling here expressed by Trumbull was the prevailing sentiment at Washington at that time, even in President Lincoln's Cabinet. Both Gideon Welles and Edward Bates shared it. Welles wrote:
In this whole summer's campaign I have been unable to see or hear or obtain evidence of power or will or talent or originality on the part of General Halleck. He has suggested nothing, decided nothing, done nothing but scold and smoke and scratch his elbows. Is it possible that the energies of a nation should be wasted by the incapacity of such a man?
When Welles said to the President that he had observed the "inertness if not incapacity of the General-in-Chief, and had hoped that he [the President] who had better and more correct views would issue peremptory orders," Lincoln replied that it was better that he, who was not a military man, should defer to Halleck, rather than Halleck to him.
Additional light is thrown by an entry in Hay's "Diaries"72 under date April 28, 1864, where Lincoln says:
When it was proposed to station Halleck in general command, he insisted, to use his own language, on the appointment of a General-in-Chief who should be held responsible for results. We appointed him, and all went well enough until after Pope's defeat, when he broke down,—nerve and pluck all gone,—and has ever since evaded all possible responsibility, little more, since that, than a first-rate clerk.
General Francis V. Greene, reviewing the war as a whole, says that
If Lincoln had placed Grant in command of the Western armies in July, 1862, when Halleck was made General-in-Chief, instead of in October, 1863, it would have probably shortened the war by a year.73
This opinion is concurred in by General Grenville M. Dodge, one of the surviving major-generals of the Civil War,74 and I imagine that it will not be disputed by any military man at the present day. These citations show that the opinions held by Trumbull, as to the inefficiency of the directing force of the Union armies, up to the time when Grant was called to take command at Washington, were not those of a mere fault-finder and backbiter.
A notable speech in favor of the anti-slavery amendment was made by Henderson, of Missouri, who was himself a slave-owner. The most impressive speech made in either branch of Congress, however, was that of Senator Reverdy Johnson, of Maryland. The fact that he represented a slaveholding State could not fail to add force to any argument he might make in support of the measure, but the argument itself, both in its moral and its legal aspects, was of surpassing merit. It deserves a high place in the annals of senatorial eloquence.
The constitutional amendment was under debate in the Senate until the 8th of April, 1864, when it was passed by a vote of 38 to 6. The negative votes were the two from Delaware, two from Kentucky, and those of Hendricks, of Indiana, and McDougall, of California. It then went to the House, where it was under consideration till the 15th of June, when it failed of passage by a vote of 93 to 65, not two thirds. The Democrats generally voted in the negative. A second attempt to pass it was made in the House on February 1, 1865, this time successfully, the yeas being 119 and the nays, 56. There was an extraordinary scene in the House when the final vote was taken. It is described by George W. Julian, in his "Recollections" (page 250), thus:
The time for the momentous vote had now come, and no language could describe the solemnity and impressiveness of the spectacle pending the roll-call. The success of the measure had been considered very doubtful, and depended upon certain negotiations, the result of which was not fully assured, and the particulars of which never reached the public.75 The anxiety and suspense during the balloting produced a deathly stillness, but when it became certainly known that the measure had prevailed, the cheering in the densely packed hall and galleries surpassed all precedent and beggared all description. Members joined in the general shouting, which was kept up for several minutes, many embracing each other, and others completely surrendering themselves to their tears of joy....
The ratification of the amendment was announced by the Secretary of State on the 18th of December, 1865. Three states, South Carolina, Alabama, and Florida, when they ratified it, passed resolutions expressing their understanding that the second section did not authorize Congress to legislate on the political status or civil relations of the negroes, but merely to confirm and protect their freedom. On November 1, 1865, Governor Perry, of South Carolina, wrote to President Johnson, saying that his state had abolished slavery in all good faith and never would wish to restore it again, but that his people feared that the second section might be construed to give Congress local power over legislation respecting negroes and white men in the state of freedom. To this letter Secretary Seward replied that the second section was "really restraining in its effect instead of enlarging the powers of Congress." By this he meant that it restrained Congress to the single subject of slavery. It did not give citizenship or civil rights to the freedmen. The legislature of South Carolina accordingly ratified the amendment on the 13th of November, and put on record the letter of Seward as the official interpretation of this clause by the Federal Executive. Alabama did substantially the same on the 2d of December and Florida on the 28th of December. Seward's interpretation of the second section of the amendment turned out to be correct, but many years of doubt and gloom were to pass before a decision upon it was reached in the Supreme Court.
From what has gone before it appears doubtful whether President Lincoln's proclamation of emancipation freed any slaves legally. Its immediate value was not so much in its effect upon the blacks as upon the whites. It liberated millions of the latter from bondage to a false philosophy and a monstrous social creed and made possible and necessary the adoption of the Thirteenth Amendment. To Senator Trumbull belongs the distinction of having traced its lines and this is his title to immortality.
CHAPTER XV
RECONSTRUCTION
The next event of world-wide concern was the assassination of President Lincoln, which took place April 14, 1865. It does not come within the scope of this work, except as it finds expression or comment in the Trumbull papers. One such, found in a letter of Norman B. Judd, Minister to Prussia, dated Berlin, May 7, ought to be preserved.
At the present moment he [Lincoln] is deified in Europe. History shows no similar outburst of grief and indignation. Crowned heads and statesmen, parliaments and corporate bodies, literary institutions and the people, all vie in pronouncing the eulogy. The entire press of Europe has for the last ten days been filled with nothing else. We have had a very impressive and imposing funeral service. Kings, Representatives, Ministers, and the Diplomatic Corps were amongst the number present. The people assembled to three times the capacity of the church. I told my colleagues to come without uniform.—Something new under the sun at this Court of Uniforms.
When the work of Reconstruction began, two opposing ideas came in conflict with each other respecting the status of the seceding states. One was that the act of secession annihilated the State Governments and put the inhabitants and their belongings in the condition of newly acquired territories, subject in all things to the conquering power. This opinion was held by Charles Sumner and Thaddeus Stevens. The other view was that every act of secession was null and void; that state sovereignty was suspended but not extinguished in the Confederacy; and that when the rebellion was crushed, it became the duty of the General Government to recognize the loyal men in each state, as the rightful nucleus of sovereignty, to assist them to set the state Governments going again; in harmony, however, with accomplished facts, including the abolishment of slavery.
The latter view had been adopted by President Lincoln in a proclamation issued simultaneously with his annual message to Congress December 8, 1863. This proclamation declared that whenever the voters of any seceding state, not less in number than one tenth of those who had voted in the presidential election of 1860, should reëstablish a loyal State Government, it should be recognized as the true Government of the state. The qualifications of voters should be those existing in the state immediately before secession, "excluding all others," but it was provided that all previous proclamations of the President and all acts of Congress in reference to slavery should be held inviolable. It was explained that the question of admitting to seats in Congress any persons who might be elected by such states as members would rest with the respective houses exclusively. It was added that while this plan of Reconstruction was favored by the President he did not mean that no other would be acceptable.
In pursuance of the proclamation an election was held in February, 1864, in that portion of Louisiana controlled by the Union army under command of General Banks, at which election 11,411 votes were cast—the whole vote of the state had usually been about 40,000. At this election, Michael Hahn had been chosen governor and he was inaugurated as such on the 4th of March, with impressive ceremonies, "in the presence of more than 50,000 people," as General Banks announced. Writing to Governor Hahn under date, March 13, 1864, Lincoln said:
Now you are about to have a convention which, among other things, will probably define the elective franchise. I barely suggest for your private consideration whether some of the colored people may not be let in, as, for instance, the very intelligent and especially those who have fought gallantly in our ranks. They will probably help, in some trying time to come, to keep the jewel of liberty in the family of freedom. But this is only a suggestion, not to the public but to you alone.
A constitutional convention of Louisiana was elected March 28, 1864; it assembled April 6; adopted a free state constitution July 22, which was ratified by popular vote September 5. Under this constitution a legislature was elected by which two Senators were chosen to represent the state at Washington. Their credentials were referred to the Committee on the Judiciary, and on the 8th of January, 1865, Trumbull called at the White House to consult with Lincoln respecting their admission. One of the consequences of the interview was the unanimous agreement of the Judiciary Committee in favor of a joint resolution recognizing the Government of which Michael Hahn was the head. This resolution was reported by Trumbull on the 23d of February. Sumner objected to it because the constitution did not grant negro suffrage, and he avowed the intention of using all parliamentary means to defeat it. In this endeavor he had the coöperation of Senators Chandler and Wade and of most of the Democrats. The latter opposed the resolution because the constitution was not the work of the majority of the white people of the state. On the 24th, there was a debate of some bitterness between Sumner and Doolittle. The latter contended that the vote of Louisiana was needed to ratify the Thirteenth Amendment of the Federal Constitution. To this Sumner replied that the so-called state of Louisiana was a shadow, that no such state existed, and that its ratification would be worthless if obtained. In this contention he was sustained by Garrett Davis, of Kentucky.
There were only seven working days remaining of the Thirty-eighth Congress, and Sumner managed to stave off the vote, although there was a large majority in favor of the resolution, as was shown by roll-calls on various motions. There was a sharp passage-at-arms between Trumbull and Sumner, which made a breach between them for a considerable time.
On the 11th of April, five days before his assassination, Lincoln delivered a carefully prepared address from the balcony of the White House in response to a greeting of citizens who had assembled to welcome him on his return from Richmond after the surrender of that city. He embraced the occasion to call attention again to the question of Reconstruction which was now becoming momentous. He referred to the plan which he had recommended in his annual message of December, 1863, and said that it had received the approval of every member of his Cabinet (which then included Chase and Blair). It had not been objected to by any professed emancipationist until after the news reached Washington that the people of Louisiana were about to take action in accordance with it. Then the question had been raised whether the seceded states were in the Union or out of it. He did not consider that question a material one, but rather a pernicious abstraction, having only the mischievous effect of dividing loyal men. The question now uppermost was how to get the seceded states again into their proper practical relations with the Union. "Let us all join," he said, "in doing the acts necessary to restoring the proper practical relations between these states and the Union, and each forever after innocently indulge his own opinion whether, in doing the acts, he brought the states from without into the Union, or only gave them proper assistance, they never having been out." The question was not whether the Louisiana Government as reconstructed was quite all that was desirable, but whether it was wiser to take it and help to improve it, or to reject and disperse it. "Concede that the new Government of Louisiana is only, to what it should be, as the egg is to the fowl, we shall sooner have the fowl by hatching the egg than by smashing it." He concluded by saying that his remarks would apply generally to other states, but that there were peculiarities pertaining to each state, and important and sudden changes occurring in the same state, so that no exclusive and inflexible plan could safely be prescribed as to details. Therefore, he held himself free to make some new announcement to the people of the South when satisfied that such action would be proper.
This was, in a political sense, his last will and testament. No other communication from him to his countrymen was more fraught with wisdom and patriotism. It received the prompt endorsement of William Lloyd Garrison, who defended it when attacked by Professor Newman, of London University.76 Garrison held not only that Lincoln had no right to interfere with the voting laws of the states, but that it would be bad policy to do so; for if negro suffrage were imposed upon the South against the will of the people, then, "as soon as the State was organized and left to manage its own affairs, the white population, with their superior intelligence, wealth, and power, would unquestionably alter the franchise in accordance with their prejudices and exclude those thus summarily brought to the polls."
Garrison saw further than Sumner, but nobody at the North then imagined the tremendous consequences that were to follow the upsetting of Lincoln's plan. If Trumbull's resolution had passed, it would have served as a precedent for all the seceding states, in which case most of the misery of the next fifteen years in the South, including the carpet-bag governments and the Ku-Klux-Klan, would have been avoided.
President Johnson at first had been rather more radical than the majority of his party as to the measure of punishment to be visited upon the leaders of the rebellion. He had several times talked about "making treason odious," and had said that traitors should take back seats in the work of Reconstruction, and had used language which implied that some of the more prominent Confederates ought to be tried and executed for treason. He had a sharp difference with General Grant as to the inclusion of General Lee in that category, Grant insisting that no officer or soldier who had observed the terms of capitulation at Appomattox could be rightfully molested.77
But this feeling of animosity on Johnson's part gradually passed away. In an authorized interview with George L. Stearns, October 3, 1865, on the subject of Reconstruction, and again in an interview with Frederick Douglass and others, February 7, 1866, on the suffrage question, he said nothing about making treason odious, but declared himself opposed to unrestricted negro suffrage because he believed it would lead to a war of races—a war between the non-slaveholding class (the poor whites) and the negroes. The former hated and despised the latter, and this feeling he thought would be intensified if the suffrage were granted to the negroes.
"The query comes up," said Johnson in his colloquy with Douglass, "whether these two races, situated as they were before, without preparation, without time for the slightest improvement, whether the one should be turned loose upon the other, and be thrown together at the ballot-box with this enmity and hate existing between them. The question comes up right there, whether we don't commence a war of races. I think I understand this thing, and especially is this the case when you force it upon a people without their consent."
Johnson had adopted not only Lincoln's plan of Reconstruction, but his Cabinet also. At its first meeting, April 16, the unfinished project for the establishment of civil government in Virginia, drafted by Secretary Stanton at Lincoln's instance, was presented but not acted on. At a subsequent meeting, May 8, it was considered and adopted, and was promulgated as an Executive Order on the following day. It recognized Francis M. Peirpoint, who had been nominal governor in Lincoln's time, as actual governor, and declared that in order to guarantee to the state of Virginia a republican form of government and to afford the advantage and security of domestic laws, and the full and complete restoration of peace, he would be aided by the Government of the United States in the measures he might take to accomplish those ends.
A loyal State Government of considerable scope and solidity, formed by Johnson himself as military governor, already existed in Tennessee. This was now recognized by the President as an accomplished fact. W. G. Brownlow had been elected governor, and a legislature had been constituted, which had passed a franchise act that limited the voting privilege to whites and excluded rebels of a certain grade. The Lincoln State Government of Louisiana and a similar one in Arkansas were allowed to stand.
On the 29th of May, the President issued an Executive Order appointing W. W. Holden provisional governor of North Carolina, and prescribing certain duties to be performed by him; among others that of calling a convention to be chosen by the loyal people of the state for the purpose of altering or amending the state constitution, and forming a government fit to be recognized and defended by the Government of the United States. Following the precedent made by Lincoln in the Louisiana case, the qualifications of voters at the election of delegates to the convention were fixed and declared to be those "prescribed by the constitution and laws of North Carolina in force immediately before the 20th day of May, 1861, the date of the so-called ordinance of secession," excepting, however, certain classes of whites. Similar orders followed in rapid succession for reorganizing Mississippi, Georgia, Texas, Alabama, South Carolina, and Florida, the last one bearing date July 13, 1865. Before the form of the order was adopted, a vote had been taken in the Cabinet on the question whether negroes should be allowed to vote in the election of Delegates. Of the six members present, three had voted in the affirmative and three in the negative. Seward was not present, being still confined to his bed by the wounds inflicted on him the night when Lincoln was assassinated. The President then took the matter in his own hands, and at the next meeting of the Cabinet read the North Carolina order and none of the members offered any objection to it.
Thus Reconstruction had been mapped out, so far as the executive branch of the Government was concerned, before the Thirty-ninth Congress assembled.
Together with the order for Reconstruction in North Carolina, the President issued a proclamation of amnesty for all persons who had participated in the rebellion, excepting, however, certain specified classes of offenders. This proclamation bore the same date, and was published simultaneously with the North Carolina order; but the newspapers of the day, while commenting upon and generally approving, made little account of the fact that negroes were excluded from voting at the election for delegates. The New York Tribune of May 30 merely said: "Of course no blacks can vote." The New York Times made mention of the same fact.
The New York Evening Post of the same date, however, after pointing out that only white men and taxpayers could vote in the coming election in North Carolina, said:
Unless, in the process of the reorganization, we build upon the principle laid down in the Declaration of Independence, that all men are created free and equal, there is no assurance that the different elements of which our social and political state is composed will subsist in harmony and tranquil coöperation. In that direction lies our way to political safety. If we attempt to build upon any foundation of inequality between races and castes, we shall find a condition of things prevailing similar to that which has been the source of so many calamities to Ireland.
The first blast against Andrew Johnson was sounded by Wendell Phillips at the New England Anti-Slavery Convention, Boston, May 31, on a resolution offered by himself affirming that
The reconstruction of the rebel states without negro suffrage is a practical surrender to the Confederacy and will make the anti-slavery proclamation of the late President, and even the expected amendment of the Constitution utterly inefficient for the freedom and protection of the negro.
This resolution was supported by Phillips in a spirit of blind fury. Every life and every dollar that had been spent by the North had been stolen, he contended, if this policy should prevail, and "there was but one way in which the people could still hold the helm of affairs, and that was by a repudiation of the entire war debt!" Such a party would have his voice and vote until God called him home. "Better, far better, would it have been for Grant to have surrendered to Lee, than for Johnson to have surrendered to North Carolina."