VIII. FIRST PROVISIONAL ADMINISTRATION…

VIII. FIRST PROVISIONAL ADMINISTRATION

SEC. 1. THEORIES OF RECONSTRUCTION

Owing to the important bearing upon the problem of Reconstruction of the disputes between the President and Congress in regard to the status of the seceded states, it will be of interest to examine the various plans and theories for restoring the Union. From the beginning of the war the question of the status of the seceded states was discussed both in Congress and out, and with the close of the war it became of the gravest importance. There was nothing in the Constitution to guide the President or Congress, though each sought to base a policy on that ancient instrument. Many questions confronted them. Were the states in the Union or out? If in the Union, what rights had they? If out of the Union, were they conquered territories subject to no law but the will of the United States government, or were they United States territory with rights under the Constitution? Must they be reconstructed or restored, and who was to begin the movement--the people of the states, Congress, or the President? Were the states in their corporate capacity, or the people as individuals, responsible for secession? What punishment was to be inflicted, and on whom or what must it fall--the people or the states? Who or what decides who are the political people of the state? Exactly what was a state? Was the Union the old Union of Washington, or a new one? Congress and the President could never agree in their answers to these questions.[847]

Conservative Theories

As to the status of the seceded states and the proper method of Reconstruction, all interested persons had theories, but the only one which was logical and consistent with regard to the "Constitution as it was" was the so-called Southern theory. This theory was that secession having failed, state sovereignty was at an end; the doctrine was worthless; secession was a nullity, and therefore the states were not out of the Union; the state was indestructible. The war was prosecuted against individuals and not against states, and the consequences must fall upon individuals; the states had all the rights they ever possessed, but, being out of their proper relation to the Union, its officers must take the oath of allegiance to the United States government, representatives must be sent to Congress, and the people must submit to the authority of the government. Then the Union would be restored as it was.[848] At the fall of the Confederacy the general belief was that restoration would proceed along these lines. Many of the higher officials of the United States army were of the same opinion, and on this theory the celebrated Johnston-Sherman convention was drawn up by General Sherman, which promised amnesty to the people and recognition of the state governments as soon as the officials should have taken the oath of allegiance.[849] Likewise, in the Southwest, General Dick Taylor, with the approval of General Canby, advised the governors of the states in his department to take steps toward restoring their states to their former relations to the Union. General Thomas, and perhaps General Grant, had likewise advised the people of north Alabama, and the subordinate Federal commanders in the Southwest favored such reconstruction and were inclined to help along the movement. But orders from Washington put an end to any such course by directing the arrest of all state officials who endeavored to act. Among those who had taken steps to restore the former relations with the Union were the governors of Alabama, Mississippi, and Florida.[850]

The Presidential and Democratic theories, like the Southern theory, were based on the doctrine of the indestructibility of the state. In the beginning the Democratic theory would have recognized the state governments of the seceded states and thus practically coincided with the later Southern theory. The Presidential theory, as formulated later, would not have recognized the state governments, and to this view the Democrats came after the war. The Union was indestructible and was composed of indestructible states. To assert that the states as states were not in the Union was to admit the success of secession and the dissolution of the Union. But the people as insurgents were incapable of political recognition by the United States government. So the state after the war was in a condition of suspended animation: the so-called state governments were not governments in a constitutional sense; the President could have the citizens tried for treason and punished, or he could pardon them and thus restore to them all their former rights, which, of course, included the right to reëstablish their governments and to resume their former relations with the Union. Congress had no power to interfere or to disfranchise any man, nor to regulate the suffrage in any way. Its only part in Reconstruction was to admit to Congress the representatives of the states as soon as constitutional government was restored by the people with the assistance of the President.[851]

The earliest legislative declaration touching this subject was in the Crittenden Resolutions passed by the House of Representatives on July 22, 1861.[852] Two days later practically the same resolutions were introduced in the Senate by Andrew Johnson of Tennessee and passed with only five dissenting voices.[853] They declared that "war is not waged upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor for the purpose of overthrowing or interfering with the rights or established institutions of these states, but to defend and maintain the supremacy of the Constitution 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."[854] To this declaration of principles the Democratic party adhered throughout the war and after. The Union as it was must be restored and maintained, one and indivisible.[855]

President Lincoln had no such regard for the "sacred rights of a state" as had the Democrats and his successor, Andrew Johnson. In his inaugural address he asserted that the Union existed before the states and was perpetual; that no state could withdraw from the Union; that secession was null and void; and that the Union was unbroken.[856] In the formation of the provisional governments by the aid of the military authorities in Tennessee, Arkansas, and Louisiana, Lincoln showed that he expected the political institutions of 1861 to be restored. In December, 1863, he brought forth this plan for restoration: When one-tenth of the voting population of a state in 1861 should take an oath to support the Constitution and should establish a government on the basis of the state constitution and laws in 1861, such a government would be recognized as the government of the state.[857] In July, 1864, he announced by proclamation that he was unwilling to commit himself formally to any fixed plan of restoration. This was in answer to the Wade-Davis bill passed by Congress, which, if approved, would set aside the governments he had erected in Louisiana, Tennessee, and Arkansas, and it showed that he considered it the prerogative of the executive to bring about and recognize the restored government.[858] These restored states he expected to take their places in the Union on the old terms,[859] for as soon as the people submitted and civil governments were established, constitutional relations would be resumed, and Congress would be obliged to admit their representatives.[860] Early in the war, he said nothing about abolition, but rather to the contrary. Later he advocated gradual and compensated emancipation by state action. At the close of the war, after the practical, if not the theoretical, abolition of slavery, he suggested that the newly established governments might, as a measure of expediency, confer the privilege of voting upon the best negroes.[861] He considered the matter of the suffrage beyond the control of the central government. The enfranchisement of the negro as a measure of revenge, and as a means of keeping the southern whites down and the Republican party in power, never entered his thoughts.

President Johnson succeeded to the policy of Lincoln, or, at least, to Lincoln's belief that restoration was a matter for the executive attention, not for the legislative. He asserted that secession was null and void from the beginning; that a state could not commit treason; that by the attempted revolution the vitality of the state was impaired and its functions suspended but not destroyed; that it was the duty of the executive to breathe into the inanimate state the life-giving breath of the Constitution. He recognized no power in Congress to pass laws preliminary to or restricting the admission of duly qualified representatives of the states.[862]

The plan of Lincoln was, in theory and at first in practice, objectionable. It would recognize as the political people of a state the loyal minority, which would be an oligarchy, and the principle of the rule of majorities would thus be repudiated. Those who claimed to be loyal were not promising material for a new political people, and the "10 per cent" governments were treated with just contempt. But the plan was based, not on any narrow principle of legality, but on the broader grounds of justice and expediency, and was capable of expansion into a very different plan from what it was in the beginning. As applied to Louisiana and Arkansas, it was severely, and in theory justly, criticised on the ground that the President was assuming absolute authority in dealing with the seceded states, and that by this plan the entire political power would be given to a small class not capable of using it. As later modified, his plan would have admitted to participation in Reconstruction nearly or quite all the citizens of the southern states.

President Johnson, a war Democrat, gave promise of being more harsh than Lincoln in the work of restoration. Lincoln's policy was based on expediency; Johnson's, on the narrow legal principles of a State Rights Democrat. He had a strong regard for the "sacred rights of a state." He proposed to reëstablish the state governments by means of a political people of the lower classes, and the old political leaders were to be disfranchised. Lincoln imposed certain conditions on individuals as a prerequisite to participation in reconstruction. Having created by the pardoning power a political people, he expected the initiative to come from them. The executive then retired into the background and waited the impulse of the people. He shrank from interfering with the states, not from any great respect for their rights, but from motives of policy. As Johnson applied his theory, there was little initiative left to the people. The executive authority as the source of power set the machinery of restoration in motion, and the people were obliged to do as he ordered, many of them being at first excluded from participation. The whole programme was prescribed by him, and he watched every step of the progress made. For a firm believer in the rights of states he took strange liberties with them while restoring their suspended animation. Lincoln advised a limited suffrage for the blacks; but negroes could have no part in the Johnson scheme. Like Lincoln, however, Johnson so modified his plan that practically all the white people were to take part in the reëstablishment of the government. The conservative theories contemplated restoration, not reconstruction.

Radical Theories

The Republican majority in Congress soon advanced from the position taken in the Crittenden-Johnson resolutions. Most of the Republican party had no fixed opinions in regard to Reconstruction, but formed a kind of a centre or swamp between the Democrats and the President on the one extreme, and the Radicals on the other. The plan of Lincoln, as first announced and applied, was offensive to all parties, and some leaders never seem to have recognized that the President had, to any appreciable degree, modified his policy. The extreme Radicals were not sorry to have the matter of reconstruction fall from the hands of the wise and kind Lincoln into those of the narrow and vindictive Johnson. But the seeming defection of the latter soon disappointed those who were in favor of harsh measures in dealing with the defeated southerners. The best-known of the Radical theories advanced in opposition to the presidential policy were (1) the State Suicide theory of Charles Sumner, (2) the Conquered Province theory of Thaddeus Stevens, and (3) the Forfeited Rights theory, practically the same as the Conquered Province theory, but expressed in less definite language for the benefit of the more timid members of the Republican party.

Charles Sumner, the Radical leader of the Senate, set forth the Suicide theory in a series of resolutions to the effect that the ordinances of secession were void, and, when sustained by force, amounted to abdication by the state of all constitutional rights; that the treason involved worked instant destruction of the body politic, and the state became territory under the exclusive control of Congress. Consequently, there were no state governments in the South, and all peculiar institutions had ceased to exist--among them slavery. Sumner constantly asserted that Congress now had exclusive jurisdiction over the southern territory.[863] He made strong objection to the despotic power of the President as applied in dealing with the seceded states, and declared that the executive was encroaching upon the sphere of Congress, which was the proper authority to organize the new governments. The seceded states, he affirmed, by breaking the constitutional compact had committed suicide, and no longer had corporate existence, and that the "loyalists," who were few in number, should not have the power formerly possessed by all. The whole South was a "tabular rasa," "a clean slate," upon which Congress might write the laws.[864] The existence of slavery was declared to be incompatible with a republican form of government, which it was the duty of Congress to establish. For it is necessary to such a form of government that there be absolute equality before the law, suffrage for all, education for all, the choice of "loyal" citizens for office, and the exclusion of "rebels." The negro must take part in Reconstruction, for his vote would be needed to support the cause of human rights and "the party of the Union"--meaning, of course, the Republican party.[865]

Sumner cared little for the Constitution except for the clause about guaranteeing a republican form of government to the states, and on this he based the power of Congress to act. The Declaration of Independence was to him the supreme law and above the Constitution, and to make the government conform to that document was his aim. He wearied his colleagues with his continual harping on the Declaration of Independence as the fundamental law, upon which footing the seceded states must return. That, he declared, would destroy slavery and all inequality of rights, political and civil.[866]

The Conquered Province theory was originated by Thaddeus Stevens, the Radical leader of the House of Representatives, who, however, refused to call it a theory. He made no attempt to harmonize his plan with the Constitution, and frankly expressed his opinion that there was nothing in the Constitution providing for such an emergency; that the laws of war alone should govern the action of Congress, allowing no constitutions to interfere.[867] It was impossible to execute the Constitution in the seceded states, he said, which the victors must treat "as conquered provinces and settle them with new men and exterminate or drive out the present rebels as exiles from this country."[868] Every inch of the soil of the southern states should be held for the costs of the war, to pay damages to the "loyal" citizens and pensions to soldiers and their families, and slavery should be abolished.[869] Secession, according to Stevens, was so far successful that the southern states were out of the Union and the people had no constitutional rights.[870] All ties were broken by the war. The states in their corporate capacities made war, and were out of the Union so far as the conqueror might choose to consider them, and must come back into the Union as new states or remain as conquered provinces with no rights except such as the conqueror might choose to grant. Perpetual ascendency of the North must be secured by giving the ballot to the negro, by confiscation, and by banishment. The Constitution, in his opinion, had been torn to atoms; it was now a "bit of worthless parchment," and there could be no reconstruction on the basis of that instrument. Congress had absolute jurisdiction over the whole question.[871] Stripped of its violence, Stevens's theory was probably the correct one from the point of view of public law. It was more in accord with historical facts. It recognized the great changes wrought by war in the structure of the government. It was frank, explicit, and practical. Unfortunately, the statesmanship necessary to carry to success such a plan was entirely lacking in its supporters.

Sumner would limit the authority of Congress only by the provisions of the Declaration of Independence; Stevens would have Congress unchecked by any law. By martial law and the law of nations, he meant no law at all, as his utterances show; nothing must stand in the way of the absolute powers of Congress. Both theories agreed in reducing the states to a territorial status. Sumner would leave the people of these states the rights of people in the United States territories. Stevens would deny that they had any such rights whatever under any law, but that they were to be considered conquered foes, with their lives, liberty, and property at the mercy of the conqueror.[872]

The Forfeited Rights theory, patched up to suit the more timid Radicals who would not concede that the states had succeeded in getting outside of the Union or that they could be destroyed, was, in effect, the Stevens theory, though recognizing some kind of a survival of the states. The names and boundaries of the states alone survived; the political institutions were entirely destroyed, and must be reconstructed by Congress.

It is a waste of time to try to find a basis in the old Constitution for any of the theories advanced. If a legal basis must be had, it will have to be found in the Constitution as revolutionized by seventy-five years of development and four years of war. The main purposes of the congressional plans were to reduce the late dictatorial powers of the President, to remove forever from political power the political leaders of the South, to give the ballot to the negro as a measure of revenge and to assure the continuation in power of the Republican party.[873]

Owing to the fact that Congress was not in session for several months after the downfall of the Confederacy, the President had a good opportunity to put into operation the executive plan for restoring the southern states to their proper standing in the Union.

SEC. 2. PRESIDENTIAL PLAN IN OPERATION

Early Attempts at Restoration

In the early spring of 1865, Governor Watts, in a speech calling upon the people to make renewed exertions against the invader, said: "We hold more territory than a year ago, more of Texas, Louisiana, and Arkansas, Georgia is overrun but is ready to rise. Our financial condition is better than four years ago. Arms, commissary and quartermaster's stores are more abundant now."[874] But there were no more men. A month later Lee had started on the march to Appomattox; two months later Dick Taylor was surrendering the last Confederate armies east of the Mississippi; three months later the war governors of Alabama were in northern prisons, and not a vestige of the Confederate or state governments remained. There was no government.

Even before the collapse of the Confederacy there were indications of an approaching revolution in the state government, to be carried out by the union of all discontented factions. The object was to gain control of the state government or to organize a new one and return to the Union. This movement was strongest in north Alabama and was supported and encouraged by the Federal military authorities. One of the disaffected clique testified before the Subcommittee on Reconstruction that in the last years of the war a "Reconstruction" or "Union" party was organized in Alabama, which, at the time of the surrender, had a majority in the lower house of the legislature.[875] But the Senate, elected in 1861, held over and prevented any action by the House. During the year 1865 the "Union" party hoped to secure both the governorship and the Senate in the first elections which were to occur under the new constitution, and thus secure control of the state. But the invasion and surrender stopped the movement.[876]

There were indications during the winter and spring of 1865 that Reconstruction movements were going on in the northern half of the state. After the invasion of the state in April many people more influential than the ordinary peace party men began to think of Reconstruction. General Thomas authorized the citizens of Morgan, Marshall, Lawrence, and the neighboring counties to organize a civil government based on the Alabama laws of 1861. J. J. Giers, a brother-in-law of State Senator Patton (later governor), was sent by the military leaders to "reorganize civil law." Thomas invited the people of the other northern counties to do likewise and thus show that they were "forced into rebellion." Colonel Patterson of the Fifth Alabama Cavalry accepted the terms for his forces, and Giers stated that Roddy's men were so pleased with Thomas's letter that they released their prisoners and stopped fighting. A Reconstruction meeting was held at Somerville, Morgan County, and was largely attended by soldiers. This was early in April.[877] In the central and southern portions of the state the movement did not begin until the Federal forces traversed the country. General Steele with the second army of invasion reported from Montgomery, May 1, 1865, that J. J. Seibels, L. E. Parsons, and J. C. Bradley[878] had approached him and had told him that two-thirds of the people of the state would take up arms to "put down the rebels."[879] A meeting was held at Selma, in Dallas County, on May 10, and called upon the governor to convene the legislature and take the state back into the Union. Judge Byrd,[880] one of the speakers, said that the war had decided two things--slavery and the right of secession--and both against the South. He counselled a spirit of conciliation and moderation, and in this he expressed the general sentiment of the people.[881]

A more important meeting was held the next day in Montgomery. A number of the more prominent politicians met to take steps to place the state in the way of readmission to the Union.[882] George Reese[883] of Chambers County presided over the meeting and Albert Roberts was secretary. Seibels introduced resolutions, which were adopted, pledging to the United States government earnest and zealous coöperation in the work of restoring the state of Alabama to its proper relation with the Union at the earliest possible moment. The murder of Lincoln and the attempt on the life of Seward were condemned as "acts of infamous diabolism revolting to every upright heart." The bad effect the crime would have on political matters was deplored. The desire was expressed that all guilty of participation in the attempt might be brought to speedy and condign punishment, and "we shall hold as enemies all who sympathize with the perpetrators of the foul deed." The majority reported a memorial to the President asking him to permit the governor of Alabama to convene the legislature, which would call a convention in order to restore the state to her political relations to the United States. This they believed was the most speedy method. But if this were not permitted, then the President was requested to appoint a military governor from among the most prominent and influential "loyal" men of the state and invest him with the power to call a convention. They were encouraged to ask this, the memorial stated, by the recent statement of the President of the principle that the states which attempted to secede were still states, and not being able to secede would not be lost in territorial or other division. "To forever put an end to the doctrine of secession; to restore our state to her former relations to the Union under the Constitution and the laws thereof; to enable her to resume the respiration of her life's breath in the Union,--is a work in which we in good faith pledge you our earnest and zealous coöperation, and we hazard nothing in the assurance that the people of Alabama will concur with us with a majority approaching almost unanimity."

Colonel J. C. Bradley presented a memorial from the minority of the committee. It was the same as the other memorial, except that the part relating to the appointment of a military governor was omitted. Such an official was not desired nor needed, he stated. After some discussion both memorials were adopted and each person present signed the one he preferred. The chairman appointed a committee to bear the memorials to the President. The general sentiment of the meeting and of the people seemed to be that, since they had failed to maintain their independence, there was nothing left to do but to accept as a working basis the theory that a state could not secede, and to get straight into the Union by having the President restore the suspended animation of the Constitution. The best and shortest way, they thought, was for Governor Watts to convene the legislature, which should begin the work, and a convention of the people would complete it. Governor Watts and the Supreme Court (Stone and Phelan) approved the action of the meeting, though they took no part in it.[884]

Another meeting on the same day (May 11), at Guntersville, in Marshall County, in the heart of the devastated section of the state, proposed to submit cheerfully to the decision of war and return to the Union. Two soldiers, Major A. C. Baird and Colonel J. L. Sheffield,[885] were the leaders in the meeting.[886] Two mass-meetings were held in Covington County (one at Andalusia on May 17) and passed resolutions favoring a restoration of the Union. The Union General Asboth said that these people had returned to their allegiance early in April and had organized and armed to resist the "rebels." The resolutions were signed by 280 and 376 persons respectively. Asboth reported great excitement on account of the action taken by the meeting.[887] On May 23 there was a meeting of citizens in Franklin County. James W. Ligon was president, H. C. Tompkins, vice-president, and R. B. Lindsey (governor in 1870-1872) addressed the meeting. This meeting seems to have been behind the times, for it accepted the overtures of Thomas made April 13, and promised to assist cheerfully in restoring law and order. They were anxious to resume former friendly relations to the United States and wanted a state convention called to settle matters.[888]

About this time the President, General Grant, and Stanton, by repeated orders, managed to reach the generals who were encouraging the movement toward Reconstruction, and put an end to their plans by ordering them not to recognize the state government in Alabama and to prevent the assembly of the legislature.[889] Thereupon, on May 23, a memorial was signed by 106 prominent citizens of Mobile, asking the President to take steps to enable Alabama to be restored to the Union. Robert H. Smith[890] and Percy Walker[891] were sent as a committee to General Granger, who commanded in the city, to ask him to transmit the memorial to the President. General Granger did so with the indorsement that no impediment existed to immediate restoration, that the signers were influential men and represented the sentiment of the people of the state.[892] At Athens, in Limestone County, the citizens met and adopted resolutions declaring that all must be restored to the Union; that the state officials should be recognized, but that a new election should be held under the laws of Alabama as they were before secession; that a convention was not necessary and in the present unsettled condition of the county it would be dangerous to hold one; that the constitution of 1819, changed by amendment, should be used. The murder of Lincoln was deplored.[893] Similar meetings were held all over the state, especially in north Alabama.[894]

The "loyal" element held a meeting in north Alabama about the first of June.[895] Resolutions were introduced by K. B. Seawell to the effect that the government of Alabama had been illegally set aside in 1861 by a combination of persons regardless of the best interests of the state, that secession was not the act of the people, and that the Confederacy was a usurpation. It was decided that Alabama must go back to the Union, and the authority of the United States was invoked to enable "loyal" citizens to form a state government.[896] The sentiments of the more violent "unionists" or tories may be understood from a letter of D. H. Bingham,[897] then at West Point, New York. He said that reconstruction must not be committed to the hands of the "rebels"; that Parsons, who was spoken of for provisional governor, was not one of the "union" men of Alabama and would use his influence to secure control to the old slave dynasty; that his appointment would be unfair to the "union" men; that the masses were coerced and deluded into fighting the battles of slavery; "I, George W. Lane,[898] and J. H. Larcombe," he said, "never gave way to secession." The non-slaveholding whites in slaveholding districts were trained to obey, he wrote, and the official class used its influence to keep the non-slaveholders in ignorance. Hence the small number of slaveholders (of whom most were owners of few slaves and hence were union men) controlled the "union" population of over 5,000,000. He said that the Alabama delegates, then in Washington,[899] were not inactive in producing these results, though they claimed to be "unionists." They were once "union" men, but went over. Now they alleged that they were carried into rebellion by a great wave of public feeling. Such men should not be trusted until they had passed through a probationary state.[900]

The southerners who wanted immediate restoration of constitutional rights and privileges on the basis of the Crittenden Resolution of 1861,[901] soon found that this plan would not work; so, to make the best of a bad situation, all accepted the Johnson plan and declared that the state, since it had not had the right to secede, must still be in the Union. The press and the prominent men, even those who would be disfranchised by the President's plan, gave it a hearty support in order to give peace to the land and restore civil government.[902] At this time the Johnson plan promised to be one of merciless proscription of the prominent men. As Johnson himself expressed it: "The American people must be made to understand the nature of the crime, the length, the breadth, the depth, and height of treason. For the thousands who were driven into the infernal rebellion there should be amnesty, conciliation, clemency, and mercy. For the leaders, justice--the penalty and the forfeit should be paid. The people must understand that treason is the blackest of crimes and must be punished."[903] The leaders were not afraid of such threats and meant not to stand in the way. The people intended to make the best they could out of a bad state of affairs. They believed then and always that their cause was right, secession justifiable and necessary; that the provocation was great, and that they were the aggrieved party; that the abolitionists and fanatics forced secession and civil war. But since they were beaten in war, after they had done all that men could do, they meant to accept the result and abide by the decision of the sword. There was a general purpose to stand by the government--certainly no dream of opposition to it. The people meant (which was neither treasonable nor unreasonable) to ally themselves to the more conservative political party in the North in order to secure as many advantages as possible to the South. Their aim was to preserve as much of their old constitution as they could, all the while recognizing that state sovereignty and slavery ended with the war. Their course in ceasing at once all useless opposition and proceeding to secure reinstatement on the old terms was, The Nation declared, "a display of consummate political ability." Southerners like to think that had Lincoln lived his plan would have succeeded, and that the most shameful chapter of American history would not have to be written.[904] Johnson helped to ruin his own cause and his supporters along with it. The people never seem to have taken seriously the proposed merciless plans of Johnson, and the opposition of moderate advisers and the pleasure of pardoning southern "aristocrats" (and later Radical criticism) caused a distinct modification of his policy in the direction of mildness until the proscriptive part was almost lost sight of.[905]

The southern leaders[906] saw clearly that there was no hope for their party unless the President could win the fight against the Radicals in Congress, and they attempted to disarm northern hostility outside Congress until the Radical party, aided by the rash conduct of the President, educated the people of the North to the proper point for approving drastic measures.[907]

The President begins Restoration

On May 29 the President began his attempt at restoration by proclaiming amnesty to all, except certain specified classes of persons. They were pardoned and therefore restored to all rights of property, except in slaves, on condition that the following oath be taken:--

"I ________________ do solemnly swear (or affirm) in the presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the states thereunder; and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion, with reference to the emancipation of slaves: So help me God."[908]

Fourteen classes of people were excluded from the benefits of this proclamation; of these twelve were affected in Alabama:--

(1) The civil or diplomatic officers, or domestic or foreign agents of the Confederacy; (2) those who left judicial positions under the United States to aid the Confederacy; (3) all above the rank of colonel in the army and lieutenant in the navy; (4) those who left seats in the United States Congress and aided the Confederacy; (5) those who resigned commissions in the United States army and navy to escape service against the Confederacy; (6) persons who went abroad to aid the Confederacy in a private capacity; (7) graduates of the naval and military academies who were in the Confederate service; (8) the war governors of Confederate states; (9) those who left the United States to aid the Confederacy; (10) Confederate sailors (considered as pirates); (11) all in confinement as prisoners of war or for other offences; (12) those who supported the Confederacy and whose taxable property was over $20,000.

The classes excluded embraced practically all Confederate and state officials, for the latter had acted as Confederate agents, all the old political leaders of the state, many of the ablest citizens who had not been in politics but had attained high position under the Confederate government or in the army, the whole of the navy,--officers and men,--several thousand prisoners of war, a number of political prisoners, and every person in the state whose property in 1861 was assessed at $20,000 or more. According to the proclamation the assessment was to be in 1865, but it was made on the basis of 1861, at which time slaves were included and a slaveholder of very moderate estate would be assessed at $20,000. In 1865 there were very few people worth $20,000.

It was provided that persons belonging to these excepted classes might make special application to the President for pardon, and the proclamation promised that pardon should be freely granted.[909] The oath could be taken before any United States officer, civil, military, or naval, or any state or territorial civil or military officer, qualified to administer oaths.[910] In Alabama 120 army officers were sent into all the counties to administer the amnesty oath. These officers were strict in barring out "all improper persons" and subscription went on slowly until the military commander issued orders that all who were eligible must take the oath. Less than 50,000 persons took the oath; 90,000 had voted in 1860.

There was a fight for appointment to the provisional governorship. William H. Smith of Randolph and D. C. Humphreys of Madison, both of whom had opposed secession, then entered the Confederate service, and later deserted; D. H. Bingham of Limestone, who had been a tory during the war; and L. E. Parsons of Talladega, who had aided the Confederacy materially and damned it spiritually--all wanted to oversee the restoration of the state.[911]

June 21, 1865, the President, acting as commander-in-chief of the army and under the clause in the Constitution requiring the United States to guarantee to each state a republican form of government and protect each state against invasion and domestic violence,[912] proceeded to breathe the breath of life into the prostrate state by appointing Lewis E. Parsons provisional governor.[913]

It was made the duty of Parsons to call a convention of delegates chosen by the "loyal"[914] people of the state. This convention was to amend or alter the state constitution to suit the changed state of affairs, to exercise all the powers necessary to enable the people to restore the state to its constitutional relations with the central authority, and to set up a republican form of government. All voters and delegates must have taken the oath of amnesty, and must have the qualifications for voters prescribed by the Alabama constitution and laws prior to the secession of the state. This excluded the fourteen proscribed classes and said nothing of the negroes. The convention, when assembled, was to prescribe qualifications for voters and for office holders. The military and naval officers of the United States were directed to assist the provisional officials and to refrain from hindering and discouraging them in any way. The Secretary of State was directed to put in force in the state of Alabama all laws of the United States, the administration of which belonged to the State Department. The Secretary of the Treasury was directed to nominate assessors, collectors, and other treasury officials, and to put into execution in Alabama the revenue laws of the United States. The Postmaster-General was ordered to establish post-offices and post routes and to enforce the postal laws. The Attorney-General and the Federal judges were directed to open the United States courts in the state. The Secretary of the Navy and the Secretary of the Interior were ordered to put in execution the regulations of their respective departments, so far as related to Alabama.[915]

In making appointments to office in the southern states, the departments were to give preference to "loyal"[916] persons of the district or state where they were to serve. If no "loyal" persons could be found in the state or district, such persons might be imported from other states or districts.

In this measure the difference appears between the Lincoln and the Johnson plan of restoration. Lincoln believed that the executive should only make things easy for the people to erect a government for themselves. He kept as much as possible in the background and let it appear that the movement originated with the people. Several times he merely suggested that negroes with certain qualifications should be granted the suffrage. Johnson, on the other hand, made it clear that he was the source of all authority in the movement. He himself made stringent regulations of the suffrage, thus creating a body of citizens, and set up a government of his own for the purpose of creating a new state government. The people were to do as he bade them. He did not suggest negro suffrage in any form and was, like most southern Unionists, opposed to it. The Johnson provisional government was a military government with the President as the source of authority. Parsons was a military governor appointed by the commander-in-chief and paid by the War Department.[917] Lincoln's provisional government would have been popular government based on election by the people.

The appointment of Parsons gave general satisfaction to all parties except the more violent tory element in the northern part of the state, who wanted men like D. H. Bingham or William H. Smith. A correspondent of The Nation who travelled among them in August, 1865, when this element of the people seemed likely to form a strong portion of the new ruling class of the South, before the President modified his plans, said of them: they are ignorant and vindictive, live in poor huts, drink much, and all use tobacco and snuff; they want to organize and receive recognition by the United States government in order to get revenge--really want to be bushwhackers supported by the Federal government; they "wish to have the power to hang, shoot, and destroy in retaliation for the wrongs they have endured"; they hate the "big nigger holders," whom they accuse of bringing on the war and who, they are afraid, would get into power again; they are the "refugee," poor white element of low character, shiftless, with no ambition.[918] To proscribe the mass of leading citizens, the experienced men in public affairs, as Johnson's plan at first promised to do, would have had serious results, but his later, more liberal, policy restored the rights of all except the more prominent. But the old leaders were never again leaders, thinking it more politic to put forward less well-known men. At first Johnson had the mountaineer's dislike of the "slave aristocracy," as he called it, and his plan was devised to humiliate and ruin this class.[919]

A month after his appointment Governor Parsons issued (July 20) a proclamation to the people, drawn largely from the census of 1860, showing how prosperous the state was at that time and inviting attention to the present condition of affairs. The question of slavery and secession, he said, had been decided against the South, but every political and property right, except slavery, still remained. He thus repudiated any former belief he may have had in the right of secession. A funny comparison was made in exuberant language and with many mixed metaphors, likening the Union to a steamship and the state of Alabama to a man swimming around in the water, trying to get on board. The following officers of the Confederate state government who were in office on the 22d of May,[920] 1865, were reappointed to serve during the continuance of the provisional government: justices of the peace, constables, members of common councils, judges of courts, except probate, county treasurers, tax collectors and assessors, coroners, and municipal officers. Judges of probate and sheriffs who were in office on May 22 were directed to take the amnesty oath and serve until others were appointed. All officers reappointed were to take the amnesty oath and give new bond. The right was reserved to remove any officer for disloyalty or for misconduct in office. Thus there was a continuity between the Confederate administration and the "restoration" administration.

The civil and criminal laws of the state as they stood on January 11, 1861, except as to slavery, were declared in full force, and an election of delegates to a constitutional convention was ordered for August 31, and the convention was to meet on September 10.[921] No one could vote in the election or be a candidate for election to the convention who was not a legal voter according to the law on January 11, 1861, and all voters and candidates must first take the amnesty oath or must have been pardoned by the President. Instructions were given as to how a person who was excluded from the benefits of the amnesty proclamation might proceed in order to secure a pardon. A list of questions was appended by which "an improper person" might test his case and see how bad it was. They ran like this:--

(1) Are you under arrest? Why? (2) Did you order, advise, or aid in the taking of Fort Morgan and Mount Vernon? (3) Have you served on any "vigilance" committee for the purpose of trying cases of disloyalty to the Confederate States? (4) Did you order any persons to be shot or hung for disloyalty to the Confederate States? (5) Did you shoot or hang such a person? (6) Did you hunt such a person with dogs? (7) Were you in favor of the so-called ordinance of secession? (8) You are not bound to answer any except the first of these questions. (9) Will you be peaceable and loyal in the future? (10) Have proceedings been instituted against you under the Confiscation Act? (11) Have you in your possession any property of the United States?[922]

Parsons appointed to assist him a full staff of secretaries as follows: Wm. Garrett, Secretary of State; M. A. Chisholm, Comptroller of Accounts; L. P. Saxton, Treasurer; ---- Collins, Adjutant-General; M. H. Cruikshank, Commissioner for the Destitute; John B. Taylor, Superintendent of Education.

A report on the condition of the treasury on September 1, 1865, shows that of $791,294 in the treasury on May 24, 1865, only $337 was in silver and $532 in gold. The rest was in state and Confederate money, now worthless. The financial status of the provisional treasury was uncertain. Receipts from July 20 to September 21, 1865, were $1766 and disbursements had been $1572. The bonded debt of the state, held in London, was $1,336,000, in New York, $2,109,000, a total of $3,445,000.[923]

Parsons could hardly do otherwise than reappoint the old state officials as temporary officers, but it created some dissatisfaction in the state and much in the North; and in truth the Confederate state officers in 1865 were not, in general, very efficient, being old men, cripples, incapables, "bomb-proofs," "feather beds," and deadheads. They were not much liked by any party unless perhaps by the few who put them in office. The Huntsville Advocate may have been voicing the objections of either "tory" or "rebel" when it condemned Governor Parsons's reappointment of the de facto state officers--"they are not the proper persons to rekindle the fires of patriotism in the hearts of the people."[924]

The provisional governor was obliged to rely upon inferior material in restoring the state government. Though the President's plan soon was shorn of its worst proscriptive features, the work of restoration had begun by excluding the natural leaders from a share in the upbuilding of the state, and they were thus rendered somewhat indifferent to the process. The class to whom the task fell was good, but it was not the best. The best men went into the southern army or otherwise committed themselves strongly to the cause of the Confederacy. The strong men of the state who sulked in their tents during the war were few in numbers, and they were usually disgruntled and cranky, and now, without influence, were much disliked by the people. The so-called "union" men who stayed at home in "bomb-proof" offices, or as teachers, overseers, ministers, etc., were not the kind of men to reconstruct the shattered government. The few who had openly espoused the Union cause had not the character, experience, and training necessary to fit them to rule a state. Though the administration began on a basis of very inferior material, yet the modification of the plan of the President gradually admitted the second-rate leaders to political privileges, and, had the experiment continued, they would have gradually resumed control of the politics of the state. It was in some degree the hope of this that made them willing to submit to proscription and exclusion for a while and support the reconstruction measures of the President. They hoped for better times.[925]

Parsons revised the official lists thoroughly, and many of the old officers were discharged and new ones appointed. However, they had little to do; the army and the Freedmen's Bureau usurped their functions. A proclamation of August 19, 1865, directed the probate judge, sheriff, and clerk in each county to destroy, after August 31, old jury lists and make new ones from the list of names of "loyal" citizens who had taken the amnesty oath and registered. Circuit court judges were directed to hold special sessions of court for the trial of state cases and to have their grand juries inquire particularly into the cases of cotton and horse stealing, now common crimes.[926]

"Proscribing Proscription"

One of the principal occupations of the provisional government was securing pardons for those who were excluded from the general amnesty of May 29, 1865. Governor Parsons was for reconciliation, and those who hoped to profit by the disfranchisement of the leaders complained of the lenient treatment of the latter. Parsons's policy of "proscribing proscription" was greatly disliked by those who would profit by disfranchisement. If it were continued, they saw there would be no spoils for them. One of the aggrieved parties related a case which might well have been his own: A prominent "union" man went to the President to get his pardon, stating that he had been as much a Union man as possible for the last four years. "I am delighted to hear that," the President said. Directly the "union" man said that he had been forced to become somewhat implicated in the rebellion, that he had been obliged to raise money by selling cotton to the Confederates, and, as he was worth over $20,000, it was necessary to get a pardon. "Well, sir," the President answered, "it seems that you were a Union man who was willing to let the Union slide. Now I will let you slide." On the other hand, Judge Cochran of Alabama told the President that he had been a rabid, bitter, uncompromising rebel; that he had done all he could to cause secession, and had fought in the ranks as a private; that he regretted very much that the war had resulted as it had; that he was sorry they had not been able to hold out longer. But he now accepted the results. The President asked: "Upon what ground do you base your application for pardon? I do not see anything in your statement to justify you in making such an application." Judge Cochran replied, "Mr. President, I read that where sin abounds, mercy and grace doth much more abound, and it is upon that principle that I ask for pardon." The pardon was granted.[927]

The President in the end granted pardons to nearly all persons who applied for them, but not a great number applied. The total number pardoned in Alabama from April 15, 1865, to December 4, 1868, was less than 2000, and of these most were those who had been worth over $20,000 in 1861 and had aided the Confederacy with their substance. For this offence (for offence it was in Johnson's eyes) 1456 people (of whom 72 were women) were pardoned before the general amnesty in 1868.[928] How many of this class of excepted persons did not ask for pardon is not known. It is certain that all who possessed that amount of wealth assisted the Confederacy. Half at least of the $20,000 must have been slave property.[929]

Few of the state and Confederate officials applied for pardon. Many worth over $20,000 in 1861 did not apply. Most of those who were wealthy in 1861 lost all they had in the war. To December 31, 1867, the President had pardoned in Alabama only 12 generals, viz. Battle, Baker, F. M. Cockerill, Clayton, Deas, Duff C. Green, Holtzclaw, Morgan, Moody, Pettus, Roddy, and Wood; 11 members of the Confederate Congress had been pardoned, 1 former United States judge, 1 former member United States Congress, 1 West Point graduate; 2 naval officers, and 2 governors. These were the only prominent political leaders who applied for pardon.[930]

SEC. 3. THE "RESTORATION" CONVENTION

Personnel and Parties

The election for delegates was held August 31, and the convention met in Montgomery September 12 and adjourned on September 30. The total vote cast for delegates was about 56,000,[931] a very large vote when all things are considered. This being a representative body of the men who were to carry out the Johnson plan of restoration, it will be of interest to examine closely the personnel of the convention. There were 99 delegates, of whom only 18 were under forty years of age, the majority being over fifty; it was a body of old rather than middle-aged men; 26 were natives of Alabama; 24 were born in Georgia; Virginia, North Carolina, and South Carolina furnished 28; Maryland, Kentucky, and Tennessee, 14; 6 were from northern states, and 1 from Ireland. There were 23 Methodists; 19 Baptists; 16 Presbyterians (the most able members), and 5 Episcopalians; 34 belonged to no church (not a mark of respectability at that time). There were 33 lawyers and 42 farmers and planters; 6 physicians, 9 merchants, 2 teachers, and 7 ministers. The proportion of ministers and non-church-members is remarkable. As to politics, 45 were old Whigs and had voted for Bell and Everett electors in 1861, 24 voted for Breckenridge, and 30 for Douglas; 18 had been in favor of immediate secession and a few of these were now called "precipitators"; 11 had been in the convention of 1861, and 10 had then voted for secession. Only one member of the convention of 1861 from the southern and central parts of the state was returned to the convention of 1865. All the others had by their course in the war made themselves ineligible. Fifty-two had had no previous experiences in public life. There were two ex-governors, two former members of Congress, and one who had been minister to Belgium.[932]

There were several extreme "union" men, a few "precipitators," who, however, made no factious opposition, and a large majority of conservative men. The votes on test questions showed a wide difference between the extremists from north Alabama and the other members. The proportion was about 63 conservatives to 36 north Alabama anti-Confederates. It was the old sectional division. The minority was made up about equally of rampant "union" men and old conservative Whigs; the majority, of the more liberal Whigs and conservative Democrats. Neither party was as united as the parties had been in 1861. There were almost as many minor divisions as there were members, but the most of them acted together in order to transact business, and none were allowed to obstruct. As a body the convention was much inferior in ability to that of 1861 and lacked experience. Nearly all were men of ordinary ability, while those of 1861 were the best from both sections of the state. Yet this was quite a respectable conservative body.[933] The secessionists and former Democrats were the ablest members, and were more inclined to accept the results of war in a philosophical spirit, and, making the best of things, to go to work to bring order out of political chaos. The Herald correspondent said that John A. Elmore was the strongest man in the convention. He had been an ardent secessionist of the Yancey school, yet in the convention he did more than any other man to bring the weaker men around to correct views and harmony of action.[934]

Ex-Senator and Ex-Governor Fitzpatrick was chosen to preside, and Governor Parsons administered the amnesty oath. The convention at once notified President Johnson of the desire and intention of the people to be and to remain loyal citizens of the United States. It indorsed his administration and policy and asked him to pardon all who were not included in the amnesty proclamation of May 9, 1865.[935]

Debates on Secession and Slavery

The debate on the action to be taken as to the ordinance of secession was warm and extended over the entire session. The dispute was concerning the form of words to be used in repealing or otherwise getting rid of the ordinance of secession. One delegate proposed that it be declared "unconstitutional and therefore illegal and void"; another wanted it declared "null and void"; another, "the so-called ordinance of secession, null and void"; others, "unconstitutional, null and void"; "unauthorized, null and void"; or "unauthorized and void from the beginning." The minority proposition to declare it "unauthorized, null and void," was laid on the table by a vote of 69 to 21, the minority being from north Alabama. A proposition to declare it "unconstitutional, null and void" was lost by the same vote. And all similar propositions fared about the same.[936] However, a proposition to say that "it is and was unconstitutional" secured 34 votes against 59. Clark of Lawrence, who had been in the convention of 1861, wanted this convention to declare the ordinance of secession "unauthorized, null and void," because, he said, in 1861, the majority of the people voted for "union and coöperation," and that, as the convention refused to submit its work to the people, the people were misrepresented and the ordinance of secession was unauthorized. Yet he would not say that it was unconstitutional and void from the beginning. Other members said that the convention of 1861 had full authority. From the act of the legislature of 1860 which provided for the calling of the convention, the people understood that it had full authority and they also knew that it would use its authority to secede. "Unauthorized" would mean that there was no cause for calling the convention of 1861, and would even deny the right to secede as a revolutionary right. It would mean consent to the doctrine of passive obedience, and also that the convention of 1861 and those who supported it had usurped authority, and "we thereby impliedly should leave the memory of our dead who died for their country to be branded as traitors and rebels and turn over the survivors, so far as we are concerned, to the gibbet."[937] The ordinance favored by the majority of the convention declared that the ordinance of secession "is null and void," and was adopted by a unanimous vote.[938] All other ordinances, resolutions, and proceedings of the convention of 1861, and such provisions of the constitution of 1861 as were in conflict with the Constitution of the United States, were declared null and void.[939]

The state bonded debt in aid of the war was $3,844,500, which was held principally in Mobile. There were other indirect war debts, but no one knew the amount. On a test vote early in the session the convention was divided, 58 to 34, against repudiating the war debt.[940] Later, by a vote of 60 to 19, all debts created by the state of Alabama, directly or indirectly in aid of the war, were declared void, and the legislature was forbidden to pay any part of it, or of any debts contracted directly or indirectly by the Confederacy or its agents or by its authority.[941]

In the debate in regard to the abolition of slavery, Mr. Coleman of Choctaw[942] desired to know by what authority the people of Alabama had been deprived of their constitutional right to property in slaves.[943] He urged the convention not to pass an ordinance to abolish slavery, but to leave the President's proclamations and the acts of Congress to be tested by the Supreme Court; that there was no such thing as secession; a state could not be guilty of treason, and Alabama had committed no crime; individuals had done so; others were loyal and were entitled to their rights. Not only those who had always been loyal but also those who had taken the amnesty oath were entitled to their property;[944] those pardoned by the President were entitled to the same rights, and Congress had no authority to seize property except during the lifetime of the criminal. The Federal government had no right to nullify the Constitution. The abolition of slavery should be accepted as an act of war, not as the free and voluntary act of the people of Alabama which latter course would prevent the "loyalists" of Alabama, from receiving compensation for slaves. He denied that slavery was non-existent; Lincoln's proclamation did not destroy slavery; it was a question for the Supreme Court to decide, and to admit that Lincoln's proclamation destroyed slavery was to admit the power of the President and Congress to nullify every law of the state. For all these reasons it was inexpedient for the convention to declare the abolition of slavery.

Judge Foster of Calhoun answered that the war had settled the question of slavery and secession; that the question of slavery was beyond the power of the courts to decide, and, besides, a decision of the Supreme Court would not be respected. The question had to be decided by war, and having been so decided, there was no appeal from the decision. The institution of slavery had been destroyed by secession. The question was not open for discussion. Slavery, he said, does not exist, is utterly and forever destroyed,--by whom, when, where, is no matter. The power of arms is greater than all courts. Citizens should begin to make contracts with their former slaves. Should the Supreme Court declare the proclamations of the Presidents and the acts of Congress unconstitutional, slavery would not be restored. Whether destroyed legally or illegally, it was destroyed, and the people had better accept the situation and restore Federal relations.[945]

Mr. White of Talladega[946] proposed to abide by the proclamations of the President and the acts of Congress until the Supreme Court should decide the question of slavery. White said that he had opposed secession as long as he could; that the states were not out of the Union, but had all their rights as formerly.[947] Mr. Lane of Butler wanted an ordinance to the effect that since the institution of slavery had been destroyed in the state of Alabama by act of the Federal government, therefore slavery no longer exists. This was lost by a vote of 66 to 17.[948] On September 22, 1865, an ordinance was adopted by a vote of 89 to 3 which declared that the institution of slavery having been destroyed, neither slavery nor involuntary servitude should thereafter exist in the state, except as a punishment for crime. All provisions in the constitution regarding slavery were struck out, and it was made the duty of the next legislature to pass laws to protect the freedmen in the full employment of all their rights of person and property and to guard them and the state against any evils that might arise from their sudden emancipation.[949] Mr. Taliafero Towles of Chambers, a "loyalist," proposed an ordinance to make all "free negroes"[950] who were not inhabitants of the state before 1861 leave the state. Mr. Langdon of Mobile regretted this proposition, and thought it would do harm. Mr. Towles explained that he lived near the Georgia line and that he was much annoyed by the negroes who came into Alabama from Georgia. Mr. Patton[951] of Lauderdale opposed such a policy. It was unwise, he said; let people go where they pleased; he would invite people from all parts of the Union to Alabama. Mr. Mudd of Jefferson thought that such a measure would be extremely unwise. Mr. Hunter of Dallas said that it was very unwise, that it would do no good, and at such a time would be harmful. Passions must be allayed. Towles withdrew the resolution.[952]

Mr. Saunders of Macon introduced a memorial to the President to release President Davis. It was referred to a committee and was not heard from.[953] General Swayne of the Freedmen's Bureau sent to the convention a memorial from a negro mass-meeting in Mobile praying for the extension of suffrage to them. It was unanimously laid on the table.[954]

"A White Man's Government"

General Swayne had made an arrangement with the governor by which the state officials were required to act as agents of the Freedmen's Bureau. The convention now passed an ordinance requiring these officers to continue to discharge the duties of agents of the Bureau "until the adjournment of the next general assembly." Seventeen north Alabama men opposed the passage of this ordinance.[955]

Mr. Patton of Lauderdale proposed an ordinance in regard to the basis of representation in the general assembly. It was not correctly understood in north Alabama, which section, thinking it called for representation based on population, rose in wrath. The Huntsville Advocate said: "This is a white man's government and a white man's state. We are opposed to any changes in the convention except such as are necessary to get the state into the Union again."[956] Mr. Patton explained that the purpose of his measure was to base representation on the white population. He cheerfully indorsed north Alabama doctrine, "This is a white man's government and we must keep it a white man's government."[957] The ordinance as passed provided for a census in 1866, and the apportionment of senators and representatives according to white population as ascertained by the census. The delegates from the white counties of north Alabama and southeast Alabama voted for the ordinance, and thirty delegates from the Black Belt voted against it.[958]

This measure destroyed at a blow the political power of the Black Belt, and had the Johnson government survived, the state would have been ruled by the white counties instead of by the black counties. This was partly the result of antagonism between the white and black counties.

Early in the session Mr. Sheets of Winston, "loyalist," demanded that all amendments to the Constitution adopted by the convention should be referred to the people for ratification or rejection, except such as related to slavery.[959] Mr. Webb of Greene, chairman of the Committee on the Constitution, reported that, on account of the state of the times, it was not expedient to refer the amendments to the people. Mr. Clark of Lawrence[960] wanted the people to have an opportunity to show whether they favored the work of the convention. He said that, in 1861, had the ordinance of secession been referred to the people, it would have been defeated.

The members who were in favor of not sending the amendments to the people said that there was not time, and that there were too many other elections; that the people had confidence in the convention or they would not have elected the delegates who were there. But the north Alabama delegates insisted that their constituents not only expected to have the amendments submitted to them, but that they (the delegates) had pledged that they would have the amendments sent before the people.[961] The north Alabama party could not consistently do anything but object to the adoption of the constitution by proclamation. Some had never recognized the supreme authority of a constitutional convention; others were opposed to the expediency of adoption by proclamation. By a vote of 61 to 25 the constitution was proclaimed in force without reference to the people.[962]

Legislation

The convention did some important legislative work necessary to put the business of administration in running order again. All the laws enacted during the war not in conflict with the United States Constitution, and not relating to the issue of money and bonds nor to appropriations, were ratified and declared in full force since their dates.[963] All officials acts of the state and county officials, all judgments, orders, and decrees of the courts, all acts and sales of trustees, executors, administrators, and guardians, not in conflict with United States Constitution were ratified and confirmed. Deeds, bonds, mortgages, and contracts made during the war were declared valid and binding. But in cases where payments were to be made in Confederate money the courts were to decide what the true value of the consideration was at the time.[964] Divorces granted during the war by the chancery court were declared valid.[965] Marriages between negroes, whether during slavery or since emancipation, were declared valid; and in cases where no ceremony had been performed, but the parties recognized each other as man and wife, such relationship was declared valid marriage. The children of all such marriages were declared legitimate. Fathers of bastard negro children were required to provide for them. The freedmen were placed under the same laws of marriage as the whites, except that they were not required to give bond.[966] The legislature was commanded to pass laws prohibiting the intermarriage of whites with negroes or with persons of mixed blood.[967]

In view of the lawlessness prevailing in some of the counties, the provisional governor was authorized to call out the militia in each county, and the mayors of Huntsville, Athens, and Florence were given police jurisdiction over their respective counties until the legislature should act. The ante-bellum militia code was declared in force, and all other laws in regard to the militia were repealed.[968]

The governor was ordered to pay the interest on the bonded debt of the state that was made before 1861, and the convention pledged the faith of the people that the old debt should be paid in full with interest.[969] The state was divided into six congressional districts. The negro was no longer counted in the "Federal number," and the representation of the state in Congress was thus reduced. Elections were ordered for various offices in November and December, 1865, and March and May, 1866. The provisional governor was authorized to act as governor until another was elected and inaugurated. It was ordered that in the future no convention be held unless first the question of convention or no convention be submitted to the people and approved by a majority of those voting.[970]

Finally, the convention asked that the President withdraw the troops from the state, the people and the convention having complied with all the conditions and requirements necessary to restore the state to its constitutional relations to the Federal government.[971] The convention adjourned on September 30, having been in session ten days in all. The constitution went into effect gradually, Parsons enforcing some of it; Patton and the newly elected legislature organized the government under it from December, 1865, to May, 1866. But it never became more than a provisional constitution, which was set aside by the President at pleasure.

SEC. 4. "RESTORATION" COMPLETED

By convention ordinance and by constitutional amendment the civil rights of the freedmen were made secure, family relations legalized, property rights secured; the courts of law were open to them, and in all cases affecting themselves, their evidence was admissible. The admission of negro testimony was generally approved by the bar and the magistracy, but disliked by the ignorant classes of whites. All magistrates and judicial officers who refused to admit negro testimony or to act as Bureau agents were removed from office by the governor. One mayor (of Mobile) and one judge were removed.

Affairs were going on well, though the civil government was weakened and lost prestige by being subordinated to the military authorities.[972] The convention having authorized Parsons to organize the militia to aid in restoring order, several companies were organized and instructed to act solely in aid of the civil authorities and in subordination to them. They were to act alone only when there was no civil officer present.[973]

Among the whites there was a vague but widespread fear of negro insurrections, and toward Christmas this fear increased. The negroes were disappointed because of the delayed division of lands, and their temper was not improved by the reports of adventurers, black and white, who came among them as missionaries and sharpers. There was a general and natural desire among the freedmen to get possession of firearms, and all through the summer and fall they were acquiring shotguns, muskets, and pistols in great quantities. Most of the guns were worthless army muskets, but new arms of the latest pattern were supplied by their ardent sympathizers in the belief that the negroes were only seeking means of protection. A sharper who claimed to be connected with the government travelled through some of the black counties, telling the negroes that they were mistreated and must arm themselves for protection. He sold them certificates for $2.50 each which he said would entitle the bearers to muskets if presented at the arsenals at Selma, Vicksburg, etc.[974] Hence arose the fears of the whites who were poorly armed.

In several instances where there was fear of negro insurrection the civil authorities, backed by the militia, searched negro houses for concealed weapons, and sometimes found supplies of arms, which were confiscated. There was a general desire to disarm the freedmen until after Christmas, when the expected insurrection failed to materialize; but no order for disarming was issued by the governor, and a bill for that purpose was defeated in the legislature. Some of the militia companies undertook to patrol the country to scare the negroes with a show of force,[975] and in some places disguised patrols rode through the negro settlements to keep them in order. There were several instances of unauthorized disarming and lawless plunder under the pretence of disarming the blacks, by marauders who took advantage of the state of public feeling and followed the example of the disguised patrol bands. General Swayne himself was afraid of negro insurrection, and before Christmas did not interfere with the attempts of the whites to control the blacks. After Christmas the negroes quieted down, and most of them made some pretence of working. The next case of disarming that occurred brought the interference of General Swayne, who ordered that neither the civil nor the military authorities should again interfere with the negroes under any pretext, unless by permission from himself. He threatened to send a negro garrison into any community where the blacks might be interfered with. After that, he says, the people were "more busy in making a living," and the militia organizations disbanded. Two classes of the population were now beyond the reach of the civil government, the "loyalists" and the negroes, and the civil authorities maintained that these were the source of most disorder.[976]

An act of Congress, July 2, 1862, prescribed that every person elected or appointed to any office under the United States government should, before entering upon the duties of the office, subscribe to the "iron-clad" test oath,[977] which obliged one to swear that he had never aided in any way the Confederate cause. Outside of the few genuine Union men of North Alabama, there were not half a dozen respectable white men in the state who could take such an oath. Those who had been opposed to secession had nearly all aided in the prosecution of the war or had held office under the Confederate government. The thousands who had fallen away from the Confederates in the last year of the war could not take the oath. The women could not take it, and few even of the negroes could. Those who could take the oath were detested by all, and the unfitness of such persons for holding office was clearly recognized by the administration. By law, certain Federal offices had to be filled by men who lived in the county or state. The Federal service did not exist in Alabama at the end of the war, and the President and Cabinet, agreeing that the requirement of the oath could not be enforced, made temporary appointments in the Treasury and postal service of men who could not take the oath. In Alabama the men appointed were the old conservatives, those who had opposed secession. The officers appointed were marshals and deputy marshals, collectors and assessors of internal revenue, customs officers, and postmasters. Objection was made in Congress to the payment of these officers, and Secretary McCulloch of the Treasury made a report on the subject. He stated that it was difficult to find competent persons who could take the oath, and that it was better for the public service and for the people that their own citizens should perform the unpleasant duty of collecting taxes from an exhausted people. There was no civil government whatever, and it was necessary that the Federal service be established. In regard to future appointments, he said, it would be difficult, if not impossible, to find competent men in the South who could take the oath, that very few persons of character and intelligence had failed to connect themselves in some way with the insurgent cause. The persons who could present clean records for loyalty would have been able to present equally fair records to the Confederate government had it succeeded, or else they lacked the proper qualifications. Northern men of requisite qualifications would not go South for the compensation offered. For the government to collect taxes in the southern states by the hands of strangers was not advisable. Better for the country politically and financially to suspend the collection of internal revenue taxes in the South for months or years than to collect them by men not identified with the taxpayers in sympathy or interest. It would be a calamity to the nation and to the cause of civil liberty everywhere if, instead of a policy of conciliation, the action of the government should tend to intensify sectional feeling. To make tax-gatherers at the South of men who were strangers to the people would be a most unfortunate course for the government to pursue, and fatal consequences, he thought, would follow such a policy. He asked that the oath be modified so that the men in office could take it.[978] The Postmaster-General made similar recommendations.[979]

For years after the war the test oath obstructed administration and justice in the South. The Alabama lawyers could not take the oath, and United States courts could not be held because there were no lawyers to practise before them. There were many cases of property libelled which should have come before the United States courts, but it was not possible.[980] As men of character could not be found to fill the offices, the Post-office Department tried to get women to take the post-offices, but they could not take the test oath. Many post-offices remained closed, and mail matter was sent by express. Letters were thrown out at a station or given to a negro to carry to the proper person. Juries in the Federal courts had to take practically the same oath as the "iron-clad," and the jury oath was in existence long after the others were modified. So for years a fair jury trial was in many localities impossible.[981]

The effect of the proscription by the test oaths of the only men who were fit for office was distinctly bad. It drove the old Whig-coöperationist-Unionist men into affiliation with the secessionists and Democrats. The division of the whites into different parties was made less likely. The Senate regularly rejected nominations made by the President of men who could not take the oath,[982] and the military authorities were inclined to enforce the taking of the test oath by the state and local officials of the provisional government.[983]

The convention ordered an election, on November 30, for governor, state and county officials, and legislature. There were three candidates for governor, all respectable, conservative men, old-line Whigs, from north Alabama, the stronghold of those who had opposed secession. They were R. M. Patton of Lauderdale, M. J. Bulger of Tallapoosa, and W. R. Smith of Tuscaloosa.[984] The section of Alabama where the spirit of secession had been strongest refrained from putting forward any candidate. The radical "loyalists" had no candidate. The few prominent men of that faction saw that it would be political suicide for them to commit themselves to the Johnson plan after he had begun the pardoning process, and were now working to overthrow the present political institutions. Only in case the plan of the Radicals in Congress should succeed would the "loyalists" get any share in the spoils. The Conservative candidates were in sympathy with the north Alabama desire for "a white man's government." Mr. Patton in the late convention had secured the revision of the constitution so as to base representation on the white population. During the war General M. J. Bulger, the second candidate, made a speech at Selma in which he said he had opposed secession and had refused to sign the ordinance, but had deemed it his duty to fight when the time came and had served throughout the war. There could be, he said, no negro suffrage, no negro equality.[985] W. R. Smith had been the leader of the coöperationists in the convention of 1861. The election resulted in the choice of R. M. Patton of Lauderdale over Bulger and Smith by a good majority.[986]

The new legislature met on November 20, but Patton was not inaugurated until a month later, owing to the refusal of the Washington administration to allow Parsons to resign the government into the hands of what the administration intended should be the permanent, "restored" state government. The object in the delay was the desire of the President to have the Thirteenth Amendment ratified before he relinquished the state government. It was a queer mixture of a government--an elected constitutional legislature and a governor and state administration appointed by the commander-in-chief of the army.[987] The legislature was recognized, but the governor elected at the same time was not. Several acts of legislation were done by this military-constitutional government during the thirty days of its existence, the most important being the ratification of the Thirteenth Amendment by the legislature. This was done with the understanding, the resolution stated, that it did not confer upon Congress the power to legislate upon the political status of the freedmen in Alabama.[988] The amendment was ratified December 2, 1865, and on the 10th, Secretary Seward telegraphed to Parsons that the time had arrived when in the judgment of the President the care and conduct of the proper affairs of the state of Alabama might be remitted to the constitutional authorities chosen by the people. Parsons was relieved, the instructions stated, from the trust imposed in him as provisional governor. When the governor-elect should be qualified, Parsons was to transfer papers and property to him and retire.[989] On the strength of these instructions Governor Patton was inaugurated December 13, 1865. In his inaugural address the new governor said that the extinction of slavery was one of the inevitable results of the war. "We shall not only extend to the freedmen all their legitimate rights," he stated, "but shall throw around them such effectual safeguards as will secure them in their full and complete enjoyment. At the same time it must be understood that politically and socially ours is a white man's government. In the future, as has been the case in the past, the state affairs of Alabama must be guided and controlled by the superior intelligence of the white man. The negro must be made to realize that freedom does not mean idleness and vagrancy. Emancipation has not left him where he can live without work."[990]

Though Patton was inaugurated on December 13, the Washington authorities did not authorize the formal transfer of the government until December 18, and the charge was made on December 20, 1865.

The legislature at once elected ex-Governor Parsons and George S. Houston to the United States Senate. The people had already elected six congressmen of moderate politics.[991] So far as concerned the state of Alabama, the presidential plan of restoration was complete, if Congress would recognize the work.

A proclamation of the President on December 1, revoking and annulling the suspension of the writ of habeas corpus, expressly excepted all the southern states and the southern border states. It was not until April 2, 1866, that the President declared the rebellion at an end.[992] He had little faith in his restored governments, or else he liked to interfere, and he still retained the power to do so.

IX. THE SECOND PROVISIONAL ADMINISTRATION

Status of the Provisional Government

It was generally understood in the state that while Congress was opposed to the presidential plan of restoration and repudiated it as soon as it convened, yet if the state conventions should abolish slavery, and the state legislatures should ratify the Thirteenth Amendment, their representatives would be admitted to Congress. This was the meaning, it seemed, of a resolution offered in the Senate December 4, 1865, by Charles Sumner, one of the most radical of the Radical leaders.[993] On the same day, in the House of Representatives, Thaddeus Stevens, the Radical leader of the lower house, introduced a resolution, which was adopted, to appoint a joint committee of the Senate and House to inquire into conditions in the southern states. Until the committee should make a report, no representatives from the southern states should be admitted to Congress.[994] Under this resolution, the Committee of Fifteen on Reconstruction was appointed. In order to support a report in favor of the congressional plan of reconstruction and to justify the overturning of the southern state governments, the committee took testimony at Washington which was carefully calculated to serve as a campaign document. Such Radicals as Stevens professed to believe that the arbitrary rule of the President was hateful to the southern people. Stevens said: "That they would disregard and scorn their present constitutions forced upon them in the midst of martial law, would be most natural and just. No one who has any regard for freedom of elections can look upon these governments, forced upon them in duress, with any favor."[995] Just exactly how much of this he meant may be inferred from his later course as leader of the Radicals of the House, in the movement which forced the negro-carpet-bag government upon the southern states. Now Stevens proposed to "take no account of the aggregation of whitewashed rebels who, without any legal authority, have assembled in the capitals of the late rebel states and simulated legislative bodies."[996]

The Republican caucus instructed Edward McPherson, clerk of the House, to omit from the roll the names of the members-elect from the South as certified by the Secretary of State. This was done, and the southern congressmen were not even allowed the usual privileges of contestants.[997]

As soon as the leaders in Congress felt that they were strong enough to carry through their plan to destroy the governments erected under the President's plan, they agreed that no senator or representative from any southern state should be admitted to either branch of Congress until both houses should have declared such state entitled to representation.[998] The state governments were recognized as provisional only, and for a year or more Congress was occupied in the fight with the President over Reconstruction. The consequence was that Patton became provisional governor of a territory and not the constitutional governor of a state. The state suffered from much government at this time. First, came the military authorities with military commissions; then, the Freedmen's Bureau with its courts supported by the military; the Bureau also acted independently of the army and with civilian officers; it was also a part of the Parsons provisional government, and later of the Patton government, and so controlled the minor officials of the state administration. To complicate matters further, the President constantly interfered by order or direction with all the various administrations, for all were subject to his supervision. The many governments were bound up with one another, and by interfering with the action of one another increased the general confusion. The people lost respect for authority, and only public opinion served to regulate the conduct of individuals.

Legislation about Freedmen

For several months the industrial system was entirely disorganized, especially in the neighborhood of the cities, and many people realized the absolute necessity of laws to regulate negro labor. The negro insisted on taking a living from the country without working for it. There were also fears of insurrection by the idle negroes who were waiting for the division of spoils, and General Swayne of the Bureau felt a touch of the apprehension.[999]

When the legislature met, a few of the demagogues who had told their constituents that they would soon regulate all troubles introduced many bills to regulate labor, and thousands of copies were printed for distribution. On December 15 it was agreed to print ten thousand copies of all bills relating to freedmen.[1000] This was done, and though the governor had not approved them, the country members went home with pockets full of bills introduced by themselves, to show to their constituents and to scare the negroes into work. The regulations proposed made special provision for the freedmen, and under different circumstances it would have been well for the negro if they had been passed into law and enforced; but it was not good policy at this time to propose such regulations, in view of the fact that the Radicals were watching for such action and hoping for it. However, it is probable that nothing that the southern whites could have done would have met with the approval of the Radicals.

Governor Patton asked General Swayne for advice in regard to the pending bills relating to freedmen, and Swayne informed him of the probable bad effect on public opinion in the North. After Christmas the Senate passed some obnoxious bills, and these the governor vetoed. The other bills that came up from the lower house failed to pass in the Senate. Similar bills, modified in many details, but which would have been of much use could they have been enforced as law, were passed by both houses only to be vetoed by the governor. The negroes were now showing a disposition to work, and the legislature did not attempt to pass the bills over the governor's veto. Next, a law relating to contracts between whites and blacks was attempted. General Swayne was known to favor such a law, but Governor Patton vetoed it. He declared that such a law would cause much trouble; he had information that everywhere freedmen were going to work on terms satisfactory to both parties and that they were disposed to discharge their obligations, and there should not be, he said, one law for whites and another for blacks; special laws for regulating contracts between whites and freedmen would do no good and might cause harm; the common law gave sufficient remedy for violations of contracts, viz. damages. General Swayne had been strongly of the opinion that contracts regularly made and carefully inspected on behalf of the negro were necessary. Later he came to the conclusion that the negro needed no protection by contract or by special law; that he had a much better protection in the demand for his labor, and would only be injured by artificial safeguards; contracts would cause litigation, and it was best for both parties to be able to break an engagement at pleasure. He was of the opinion that the whites preferred contracts, while the negro disliked to bind himself to anything. Hunger and cold, he declared, were the best incentives to labor. Swayne further reported that all objectionable bills relating to freedom had been vetoed.[1001]

A bill passed both houses to extend to freedmen the old criminal laws of the state formerly applicable to free persons of color. Governor Patton vetoed the bill on the ground that a system of laws enacted during slavery was not applicable to present conditions. He showed how the proposed laws would act, and the legislature not only accepted the veto, but repealed all such laws then in the code and on the statute books.[1002] At the close of the session there were two laws on the statute books which made a distinction before the law between negroes and whites. The first made it a misdemeanor, with a penalty of $100 fine and ten days' imprisonment, to purchase or receive from a "free person of color" any stolen goods, knowing the same to have been stolen.[1003]

The second act gave the freedmen the right to sue and be sued, to plead and be imprisoned, in the state courts to the same extent as whites. They were competent to testify only in open court, and in cases in which freedmen were concerned directly or indirectly. Neither interest in the suit nor marriage should disqualify any black witness.[1004] This law, if restrictive at all, was never in force in the lower courts where minor magistrates and judicial officers presided; for, by the order of the convention and later of the legislature, the state officials were ex officio agents of the Freedmen's Bureau, and sworn to make no distinction between white and black.[1005]

Two laws were passed for the purpose of regulating labor, in theory applicable equally to white and black. They had the approval of General Swayne, who was always present when labor legislation was discussed.[1006] The first law made it a misdemeanor to interfere with, to hire, entice away, or induce to leave the service of another any laborer or servant who had made a contract in writing, as long as the contract was in force, unless by consent of the employer given in writing or verbally "in the presence of some reputable white person." The penalty for inducing a laborer to break a contract was a fine of $50 to $500,--in no case less than double the amount of the injury sustained by the employer; and half the fine was to go to the injured party.[1007] The compilers of the Penal Code refused to incorporate this statute into the code on the ground that it was inconsistent with other provisions of the code as adopted by the legislature. The Penal Code had an old ante-bellum provision which made it a penal offence to entice, decoy, or persuade a servant or apprentice to leave the service of his master. The penalty was a fine of $20 to $100, and imprisonment for not more than three months might also be allowed.[1008]

The second labor law defined the relations of master and apprentice. The war had made orphans of many thousand children, white and black, and there were few people who could look after them. Under slavery no regulation of such things had been necessary for negro children. Now the children were running wild, in want, neglected, becoming criminals and vagabonds. Negro fathers ran off when freedom came, left their wives and children, and took unto themselves other and younger wives. The negro mother, left alone, often incapable and without judgment, could not support her children; and many negro children were found both of whose parents had died, or who had deserted them. As a result of the war, there were many white orphan children and many widowed mothers who were unable to care for their children. For years (1862-1875) there was much suffering among the children of the poorer whites and the negroes. The apprentice law was an extension of an old statute, and was designed to make it possible to care for these dependent children. It was made the duty of county officials to report to the probate courts all minors under the age of eighteen who were destitute orphans, or whose parents refused or were unable to support them; and the court was to apprentice them to suitable persons. In case the minor were the child of a freedman, the former owner should have the preference when he or she should be proven a suitable person. In such cases the probate judge was to keep a record of all the proceedings. The master to whom the minor was apprenticed was obliged to give bond that he would furnish the apprentice sufficient food and clothing, treat him humanely, furnish medical attention in case of sickness, and teach or have him taught to read and write, whether white or black, if under the age of fifteen. Power was given to inflict such punishment as a father or guardian might inflict on a child or ward, but in no case should the punishment be cruel. In case the apprentice should leave the employment of the master without the consent of the latter, he might be arrested by the master and carried before a justice of the peace, whose duty it was to remand the apprentice to the service of his master. If the apprentice refused to return, he was to be committed to jail until the next session of the probate court, which would investigate the case, and, if convinced that the apprentice had not good cause for leaving his master, would punish the apprentice under the vagrancy laws. If the court should decide that the apprentice had good cause to leave his master, he was to be released from the indenture and the master fined not more than $100, which was to be given to the apprentice. Apprenticeship was to end at the age of twenty-one for men and eighteen for women. Parents could bind out minor children under the regulations of this act.[1009] It was a penal offence to sell or give intoxicating liquors to apprentices or to gamble with them.[1010]

The definition of vagrancy was extended to include stubborn and refractory servants, laborers, and servants who loitered away their time or refused, without cause, to comply with a contract for service. A vagrant might be fined $50 and costs, and hired out until the fine was paid, but could not be hired for a longer time than six months. The proceeds of fines and hiring in all cases were to go to the county treasury for the benefit of the poor.[1011]

These statutes form the so-called "Slave Code" or "Black Code" of the state which was so harshly criticised by the Radicals as being designed to reënslave the negroes.[1012] There is no doubt that if enforced they would have affected the blacks more than the whites, though they were meant to apply to both.[1013] Something of the kind was felt to be a necessity. There were hundreds of negroes wandering about the country, living by petty theft, and some rascally whites made it a business to purchase stolen property, especially cotton, from them. White vagrants were numerous. The refuse of both armies and numbers of the most worthless whites, who had lost all they had in the war, travelled about the country as tramps, their sole occupation being to victimize the ignorant by some scheme. Stringent laws, strictly enforced, would have done much to restore order.[1014]

The Negro under the Provisional Government

The lawlessness prevalent in the state consequent upon civil war and emancipation had resulted in filling the jails with all sorts and conditions of criminals--mostly negroes--who were charged with minor offences, such as stealing, fighting, burning, which were committed during the jubilee after the coming of the Federal troops. They were clearly guilty of the crimes alleged, since they were imprisoned by consent of the Freedmen's Bureau, which allowed no negro to be arrested without its permission. There were some whites confined for similar small offences, and there were many "union" men, or "rebels," according to locality, who were under arrest for crimes committed during the war. Most of the crimes were not serious or were committed under the abnormal conditions of war. The governor, after consultation with General Swayne, "with entire singleness of purpose" (Swayne), issued a proclamation of amnesty and pardon[1015] for all offences, except murder and rape, committed between April 13, 1861, and July 20, 1865.[1016] Many hundred prisoners were thus liberated, among them eight hundred freedmen[1017] confined for penitentiary offences. No bad results followed.[1018]

By state law and military order the negro was now freed from slavery and given all the civil rights possessed by the whites, unless in certain cases of law between whites in the higher courts where the negro was not permitted to testify. In all cases concerning his own race, directly or indirectly, his standing before the court was the same as that of a white or better. The races were forbidden to intermarry. The apprentice and vagrancy laws, which were meant to regulate the economic relations between the races, could not be enforced because of technical and practical difficulties, and because the officials who were to enforce them were ex officio agents of the Bureau and therefore forbidden to enforce such laws. The Bureau upheld the negro in all his rights and much beyond. There was the most urgent demand for his labor, and to secure his wages there was a lien on the employer's crop. The negro was free to come and go when he pleased, and his pleasure led him to do this so often that written contracts fell into immediate disfavor on account of the useless litigation and disputes that ensued. Many of the more thrifty blacks began to acquire small bits of property.

The travellers who visited the South in the fall of 1865 and in 1866 agreed (except Schurz) that there was no thought of reënslavement of the negro by the white; that the white was more afraid of the negro than the negro of the white; that there was no need of protection, for the demand for his labor would protect him. There were more colored artisans than white, and all were sure of employment. At first the strong conviction that they were not free unless they were careering around the country in idleness resulted in a general wandering. In the fall and winter a large majority returned to their old homes. "Once being assured of their liberty to go and come at will, they generally returned to the service of the southerner."[1019] The courts gave substantial justice, it was reported; the judge and jury would prefer the case of a black to that of a mean white man; negro testimony in lawsuits was more and more favored, and the standing of the negro in the courts became more and more secure. Conditions as to the treatment of the negroes were steadily improving.[1020] An unfriendly critic who travelled through the Gulf states said that the negro was fairly well paid and fairly well treated.[1021] A charge to the grand jury of Pike County by Judge Henry D. Clayton, on September 9, 1866, will serve to show the sentiments of the judicial officers and members of the bar as well as juries. It was reprinted at the North as a campaign document. The following is a summary:--

A certain class of our population is clothed with civil rights and privileges that it did not possess until recently, and in dealing with them some embarrassment will be felt. One of the results of the war was the freedom of the black race. We deplore the result as injurious to the country and fatal to the negroes, but we are in honor bound to observe the laws which acknowledge their freedom. "When I took off my sword in surrender, I determined to observe the terms of that surrender with the same earnestness and fidelity with which I first shouldered my musket." We may cherish the glorious memories of that past, in the history of which there is nothing of which we need be ashamed, but now we have to reëstablish society and rebuild our ruined homes. Those unwilling to submit to this condition of things may seek homes abroad.[1022] We are bound to this soil for better or for worse. What is our duty? Let us deal with the facts as they are. The negro has been made free, though he did not seek freedom. Nominally free, he is beyond expression helpless by his want of self-reliance, of experience, of ability to understand and appreciate his condition. For promoting his welfare and adapting him to this new relation to society, all agencies from abroad will prove inadequate. The task is for us who understand him. To remedy the evil growing out of abolition two things are necessary: (1) we must recognize the freedom of the race as a fact, enact just and humane laws, and willingly enforce them; (2) we must in all our relations with the negro treat him with perfect fairness. We shall thus convince the world of our good faith, get rid of the system of espionage [the Freedmen's Bureau] by removing the pretext for its necessity, and secure the services of the negroes, teach them their place, and convince them that we are their friends. We need the labor of the negro and it is worth the effort to secure it. We owe the negro no grudge; he has done nothing to provoke our hostility; freedom was forced upon him. "He may have been the companion of your boyhood; he may be older than you, and perhaps carried you in his arms when an infant. You may be bound to him by a thousand ties which only a southern man knows, and which he alone can feel in all their force. It may be that when, only a few years ago, you girded on your cartridge box and shouldered your trusty rifle to go to meet the invaders of your country, you committed to his care your home and your loved ones; and when you were far away upon the weary march, upon the dreadful battle-field, in the trenches, and on the picket line, many and many a time you thought of that faithful old negro, and your heart warmed toward him."[1023]

Movement toward Negro Suffrage

The Freedmen's Bureau and the provisional government had set aside, repealed, or suspended laws which treated the negro as a separate class. It was soon seen that the civil government had little real authority, being frequently overruled by the officials of the army and Bureau and by the President. The civil officials became accustomed to considering Swayne or Woods, the commander of the troops in Alabama, rather than the state government, as the source of authority. It was known that the Radicals were bent on giving the ballot to the negro and on disfranchising southern political and military leaders. Some politicians began to consider the question of giving the ballot to the negro under certain restrictions. This was not done from any faith in the political intelligence of the negro, or belief that he was fitted for or needed the exercise of the franchise; for it was and is an article of the political faith of the southern people that the exercise of suffrage is a high privilege, an historical and inherited right, not the natural and absolute right of all men. The reasons were very different, and were based entirely on expediency and necessity: (1) Such action would forestall the Radical programme and disarm, to some extent, the hostile party at the North. (2) It would enable the native leaders, by conferring the privilege on the negro, to gain his confidence, control his vote, and thereby make it harmless. It was certain, it seemed, that two widely separated white political parties would arise as soon as outside pressure should be removed, and each hoped to get control of most of the negro vote. (3) Such a measure would increase the representation of the state in the Congress, thus giving them needed strength at a critical period. (4) The Black Belt hoped in this way to regain its former political influence. The new constitution, by making the white population the basis of representation, had transferred political supremacy to the white counties.

As early as October, 1865, Truman remarked that some leaders were thinking of giving the ballot to the negroes. He thought that suffrage for the negroes would harm them and would inflame the lower classes of whites against them. But if left to the leaders and politicians, they, for the sake of increased representation in Congress, would bring the people around, and by 1870 the negro would be voting.[1024] About the same time a correspondent of The Nation observed that there was no great objection to giving the negro the ballot because the white leaders thought that they could control it. It would not be opposed by the planters of the South, but by the middle and poorer classes,--the merchants, mechanics, and laborers.[1025] Early in 1866 Representative Brooks[1026] of Lowndes, a black county, introduced a bill in the lower house providing for a qualified negro suffrage based on education and property. It was laid on the table, but not before a calm and dispassionate discussion. The bill proposed by Brooks was opposed more because it disfranchised a large number of whites than because it gave suffrage to the negro. The debates showed that later the legislature would do something along that line if assured that such a course would result in readmission into the Union. In the discussion the idea was urged that something must be done to prevent the Radicals from taking the question of suffrage to the central government. This, it was held, would be dangerous to the South, with its peculiar population, to which general Federal legislation would not well apply, and hence it would be dangerous for the suffrage question to become one of national instead of state concern. Then, too, the people were intensely weary of provisional rule, and wanted to resume their proper position in the Union.[1027]

The people of the north Alabama white counties, the hilly section of the state, were opposed to any form of negro suffrage, though some of their leaders who understood the state of affairs were willing to think of it as a last resort to defeat the intentions of the Radicals. The Black Belt people, who had less prejudice against the negro and who were sure that they could control him and gain in political power, were more favorably inclined. Left alone, the various interests would have united to carry through the project in time. Suffrage so conferred upon the blacks would have been strictly limited,--a premium offered, not a right acknowledged,--under the control of the native white leaders and supporting their interests, just exactly the situation of the lower-class voters everywhere else, and the reverse of the southern situation since 1867.

One of the north Alabama leaders, L. Pope Walker,[1028] after consulting with other prominent men, went to Montgomery and conferred with General Swayne in regard to the state of affairs. Swayne gave assurance that a qualified negro suffrage would be favorably received at the North, would create a good impression, and assist, perhaps, in an early restoration of the state to the Union. He knew that suffrage for the negro brought about in this way would result in gaining the black vote for the southern and probably for the Democratic party. Though a believer in the rights of all men to vote and a strong Republican, Swayne was not then committed to the Radical programme and was ready to encourage the movement. An opportunity for the entering wedge was now at hand. Many of the minor magistrates and the sheriffs were also administering the affairs of the Freedmen's Bureau, and consequently were more or less under the direction of Swayne, who was the assistant commissioner in Alabama. His instructions to agents, before the convention, directed that all laws be administered without regard to color. Governor Parsons approved these directions and required all provisional officers to take oath accordingly. The convention sanctioned this arrangement, and ordered it to continue until the close of the next general assembly. This general assembly had practically continued the arrangements already made. In consequence, the state officials, whether willingly or not, were still, at the time when the movement for negro suffrage began, obliged to obey the directions of Swayne. The bulk of the people being opposed to the movement, it was proposed to make an experiment on the responsibility of the Freedmen's Bureau and to use that much-disliked institution as an instrument, for the people would not be much surprised at anything it would do. So the sheriff of Madison County, in the winter of 1866-1867, when some local election was at hand, wrote to General Swayne, asking if the election laws also were to be carried out regardless of color. He announced his willingness to carry out instructions. Here was an opportunity to begin the experiment, but public feeling became so irritated by the Radical measures in Congress that nothing was done, the election was not held, and the Reconstruction Acts, coming soon after, prejudiced the people more strongly than ever against anything of the kind.[1029]

About December 1, 1866, a bill was introduced into the state legislature "to amend the constitution of the state according to impartial suffrage, and then ask representation, leaving the amnesty question in the hand of Congress." Reporting this action to Chief Justice Chase, Swayne added: "This I am told is popular, and the member is sustained by his constituents."[1030] The legislature, at the same time, intended to reject the Fourteenth Amendment.

It has been stated that in February, 1867, an effort was made, with the indorsement of the President, to induce the southern legislatures which had rejected the Fourteenth Amendment to adopt a qualified negro suffrage. This was tried in Alabama and North Carolina, and probably hastened congressional Reconstruction.[1031]

With the passage of the Reconstruction Acts and other congressional action in regard to the negroes, affairs changed complexion rapidly. The alienation of the races began. It was seen that the negro vote would now be controlled by worthless outsiders and native whites. The expected division of the whites into two well-defined parties did not occur; there was an almost united white party. A few whites, indeed, there were who were ready to try negro suffrage, not those, however, who had been thinking of it during the past two years. The result of the war had intensified party spirit. The old "Union" men were intensely bitter against the secessionists or "precipitators," and in the present crisis some otherwise good citizens were so blinded by party passion as to put revenge above the welfare of their country, and were ready to accept the aid of their former slaves in their fight against the men whom they considered responsible for the present condition of affairs. Others who now took up negro suffrage were mere politicians, content to take office at any price to the country, and who could never hope for office until existing institutions were destroyed.[1032]

New Conditions of Congress and Increasing Irritation

The first general assembly under the provisional government ratified the Thirteenth Amendment, "with the understanding that it does not confer upon Congress the power to legislate upon the political status of freedmen in this state."[1033] The same legislature requested the President to order the withdrawal of the Federal troops on duty in Alabama, for their presence was a source of much disorder and there was no need of them.[1034]

The President was asked to release Hon. C. C. Clay, Jr., who was still in prison.[1035] At the end of the session a resolution was adopted approving the policy of President Johnson and pledging coöperation with his "wise, firm, and just" work; asserting that the results of the late contest were conclusive, and that there was no desire to renew discussion on settled questions; denouncing the misrepresentations and criminal assaults on the character and interest of the southern people; declaring that it was a misfortune of the present political conditions that there were persons among them whose interests were promoted by false representations; confidence was expressed in the power of the administration to protect the state from malign influences; slavery was abolished and should not be reëstablished; the negro race should be treated with humanity, justice, and good faith, and every means be used to make them useful and intelligent members of society; but "Alabama will not voluntarily consent to change the adjustment of political power as fixed by the Constitution of the United States, and to constrain her to do so in her present prostrate and helpless condition, with no voice in the councils of the nation, would be an unjustifiable breach of faith."[1036]

During the year 1866 there was a growing spirit of independence in the Alabama politics. At no time had there been a subservient spirit, but for a time the people, fully accepting the results of the war, were disposed to do nothing more than conform to any reasonable conditions which might be imposed, feeling sure that the North would impose none that were dishonorable. To them at first the President represented the feeling of the people of the North, perhaps worse. The theory of state sovereignty having been destroyed by the war, the state rights theories of Lincoln and Johnson were easily accepted by the southerners, who were content, after Johnson had modified his policy, to leave affairs in his hands. When the serious differences between the executive and Congress appeared, and the latter showed a desire to impose degrading terms on the South, the people believed that their only hope was in Johnson. They believed the course of Congress to be inspired by a desire for revenge. Heretofore the people had taken little interest in public affairs. Enough voters went to the polls and voted to establish and keep in operation the provisional government. The general belief was that the political questions would settle themselves or be settled in a manner fairly satisfactory to the South. Now a different spirit arose. The southerners thought that they had complied with all the conditions ever asked that could be complied with without loss of self-respect. The new conditions of Congress exhausted their patience and irritated their pride. Self-respecting men could not tamely submit to such treatment.[1037]

During the latter part of 1865 and in 1866, ex-Governor Parsons travelled over the North, speaking in the chief cities in support of the policy of the President. He asked the northern people to rebuke at the polls the political fanatics who were inflaming the minds of the people North and South. He demanded the withdrawal of the military. There had been, he said, no sign of hostility since the surrender; the people were opposed to any legislation which would give the negro the right to vote; and it was the duty of the President, not of Congress, to enforce the laws.[1038]

Much angry discussion was caused by the passage of the Freedmen's Bureau Bill in 1866. The Bureau officials had caused themselves to be hated by the whites. They were a nuisance, when no worse, and useless,--a plague to the people. Though there were comparatively few in the state, they were the cause of disorder and ill-feeling between the races. Though there was now even less need of the institution than a year before, the new measure was much more offensive in its provisions.[1039] There was great rejoicing when the President vetoed the bill, which the Mobile Times called "an infamous disorganization scheme of radicalism." The Bureau had become a political machine for work among white and black. The passage of the bill over the veto was felt to be a blow at the prostrate South.[1040]

The Civil Rights Bill of 1866 was also a cause of irritation. There was a disposition among the officials of the Freedmen's Bureau to enforce all such measures before they became law. Orders were issued directing the application of the principles of measures then before Congress. The United States commissioner in Mobile decided that under the "Civil Rights Bill"[1041] negroes could ride on the cars set apart for the whites. Horton, the Radical military mayor of Mobile, banished to New Orleans an idiotic negro boy who had been hired to follow him and torment him by offensive questions. Horton was indicted under the "Civil Rights Bill" and convicted. The people of Mobile were much pleased when a "Yankee official was the first to be caught in the trap set for southerners."[1042]

Another citizen of Mobile, a magistrate, was haled before a Federal court, charged with having sentenced a negro to be whipped, contrary to the provisions of the "Civil Rights Bill." The magistrate explained that there was nothing at all offensive about the whipping. He had not acted in his magisterial capacity, but had himself whipped the negro boy for lying, stealing, and neglect of duty while in his employ.[1043] The agent of the Bureau at Selma notified the mayor that the "chain gang system of working convicts on the streets had to be discontinued or he would be prosecuted for violation of the 'Civil Rights Bill.'"[1044] Judge Hardy of Selma decided in a case brought before him that the "Civil Rights Bill" was unconstitutional. He declared it to be an attack on the independence of the judiciary.[1045]

Rejection of the Fourteenth Amendment

In the fall of 1866 the proposed Fourteenth Amendment was submitted to the legislature. There was no longer any belief that further yielding would do any good; the more the people gave the more was asked. State Senator E. A. Powell wrote to John W. Forney that the people would do nothing about the Fourteenth Amendment because they were convinced that any action would be useless. Condition after condition had been imposed and had been absolved; slavery had been abolished, secession acknowledged a failure, and the war debt repudiated by the convention; the legislature had ratified the Thirteenth Amendment, had secured the negro in all the rights of property and person; and after all the state was no nearer to restoration.[1046] This was the view of nearly all the newspapers of the state, and in this they represented popular opinion. They were intensely irritated by the fact that, although they had made so many concessions, still they were excluded from representation in Congress, and were heavily and unjustly taxed.[1047] Moreover, they were opposed to the amendment because it branded their best men as traitors.[1048] One newspaper, alone, advocated adoption of the amendment as the least of evils.[1049]

John Forsyth, in the Mobile Register, said: "It is one thing to be oppressed, wronged, and outraged by overwhelming force. It is quite another to submit to voluntary abasement" by adopting the Fourteenth Amendment. It should be rejected, he said, because it would disfranchise the very best of the respectable whites, the beloved leaders of the people. Judge Busteed, in a charge to the Federal grand jury, delivered a political harangue advocating the adoption of the Amendment. Many ultra "union" men in north Alabama opposed the Amendment for three reasons: (1) though it would disfranchise the leaders, the great mass of the white people would still be allowed to vote, especially those who had not held civil office during the war; (2) some of these "union" men had been ardent secessionists at the beginning and had thus compromised themselves, or had been elected to the legislature or to some "bomb-proof" office during the war--as "obstructionists," they claimed--and the proposed amendment would disfranchise them along with the Confederate leaders; (3) this class as a rule disliked the negro and never wanted negro suffrage if it were possible to secure the overthrow of existing institutions without it. Two planters of the Black Belt were ready for negro suffrage to one "buckra."[1050] Those men who considered themselves "unionists" wanted no negro suffrage, nor anything so weak as the Fourteenth Amendment; but desired some kind of a military régime in which the United States government should place them in permanent possession of the state administration and exclude all who were not like themselves. The test should be a political one, they said. It seems to be a fact that a few hundred such men with, at the most, five thousand followers expected to have the whole state administration under their direction for years. Yet it would have required a special law of exemption for each of them in order to protect them from the proscription which was to be visited upon the ex-Confederates. For these "unionists" had often betrayed both sides during the war. Their most patriotic duty had been "obstruction."

By most persons the question of negro political rights was considered to belong to the state and was not a matter for the Federal government to regulate. "Loyalists" as well as "rebels" were afraid to leave negro affairs to the regulation of Congress. In his annual message to the legislature, in November, 1866, Governor Patton advised the legislature not to ratify the Fourteenth Amendment, on the ground that it could do no good and might do harm. It involved a creation of a penalty after the act. On this point, he said that it was an ex post facto law, and contrary to the whole spirit of modern civilization; that such a mode of dealing with citizens charged with offences against government belonged only to despotic tyrants; that it might accomplish revengeful purposes, but that was not the proper mode of administering justice; that adoption would vacate merely all offices in most of the unrepresented states--governors, judges, legislators, sheriffs, justices of peace, constables--and the state governments would be completely broken up and reduced to utter and hopeless anarchy; that the disabilities imposed by the test oath were seriously detrimental to the interests of the government; that ratification of the Amendment could not accomplish any good to the country and might bring upon it irretrievable disaster.[1051]

Under the circumstances, the legislature refused to consider the Amendment. But the governor during the next few weeks was induced by various considerations to recommend the ratification, and on December 7, 1866, he sent a special message stating that there was a purpose on the part of those who controlled the national legislation to enforce their own terms of restoration at all hazards; and that their measures would immeasurably augment the distress already existing and inaugurate endless confusion. The cardinal principle of restoration seemed to be, he said, favorable action on the Fourteenth Amendment. Upon principle he was opposed to it. Yet necessity must rule. So now he recommended reconsideration. If they should ratify and restoration should follow, they might trust to time and their representatives to mitigate its harshness. If they should ratify and admission should be delayed, it would serve as a warning to other states and thus prevent the necessary number for ratification.[1052]

The message created excitement in the legislature and the chances were favorable for ratification; but ex-Governor Parsons, who was in the North, advised against it. He thought the northern people would support the President in the matter. The legislature refused to ratify by a vote of 27 to 2 in the Senate, and 69 to 8 in the House.[1053] Potter of Cherokee gave notice that on January 15 he would move to reconsider the vote. Governor Patton, moreover, was convinced that Congress meant to carry out its plan of reconstruction, and that opposition might make matters worse. General Swayne kept a strong pressure upon him, assuring him that Congress would have its own way. During the Christmas holidays the governor made speeches in north Alabama in favor of ratifying the Amendment. Congress would require it, he said. On principle he opposed the measure, but it must come at last. "Look the situation squarely in the face," he said; only 2000 or 3000 men (himself included) would be deprived of office, and to oppose Congress was to ruin the state, to territorialize it. There were men in Washington, he said, who were already working in order to be made provisional governor under the new régime.[1054] After the recess Patton sent a second message recommending that the Amendment be adopted, since it was the evident purpose of Congress to enforce their own terms.[1055] For a day or two it was considered, General Swayne and the governor using their influence with the members, and it seemed almost sure to be ratified. But Parsons, then in Montgomery, telegraphed (January 17, 1867) to the President that the legislature was reconsidering the Amendment. Johnson replied saying that no possible good could come of such action; that he did not believe the people of the country would sustain "any set of individuals" in attempts to change the whole character of the government, but that they would uphold those who stood by the Constitution; and that there should be no faltering on the part of those who were determined to sustain the coördinate departments of the government in accordance with its original design. For the third time the Amendment failed to pass.[1056] One of the last resolutions passed by the provisional legislature before it was abolished by the Reconstruction Acts was on February 1, 1867, in regard to memorializing Congress to establish a uniform system of bankruptcy. Relief was needed, they stated, "yet the promptings of self-respect forbid the propriety of further intruding our appeals upon a Congress which refuses to recognize the state of Alabama for any purpose other than that of taxation. It is a source of regret that Congress has assumed an attitude toward the state of Alabama totally incompatible with the mutual obligations of allegiance and protection."[1057]

Political Conditions, 1865-1867; Formation of Parties

In the convention of 1865 two well-defined parties had appeared, though generally, at that time, for the sake of harmony they acted together. These parties grew farther and farther apart. One of them, consisting of most of the people, especially of the central and southern section of the state, supported the policy of the President. The other party was a motley opposition. In it were the few original "Union" men, the tories, and many more self-styled "union" men, who saw an opportunity for advancement for themselves if the present government were overthrown. There were others who thought that the old ruling class should now retire absolutely from public life and allow their former followers to take their places. There was a fair sprinkling of respectable men who were bitterly opposed to any party or policy that suited the former Democrats, and believing that Congress would not be too severe, they were willing to see three or four thousand of the leaders disfranchised in order to get the state back into the Union. They were willing also to become leaders themselves in the place of those disfranchised.

During the year 1866 these parties were organized to some degree, held meetings, and made bids for northern support. The opposition worked into the hands of the Radical party at the North, though many of them did not favor the full Radical programme, especially as regarded negro suffrage. The other party took the name of the "Conservative" or "Democratic and Conservative." It was composed of former Democrats, Whigs, Know-nothings, Anti-Know-nothings, Bell and Everett men,--nearly all of the respectable voting people. These allied with the "Conservative" party in other southern states and with the Democrats in the North and formed the "National Union Party." Its platform was essentially the presidential plan of Reconstruction.[1058] The campaign of 1866 was made on many issues,--the Civil Rights Bill, Freedmen's Bureau Bill, Fourteenth Amendment, the plans of Reconstruction. Ex-Governor Parsons and other prominent Alabamians spoke in the cities of the North in support of the policy of the President. Ex-Governor Shorter, in a public letter, said that he had been a "rebel" until the close of the war, and understood the feeling of the people of Alabama. There had not been since the surrender and there was not now, he said, any antagonism to the United States government, and Reconstruction based on the assumption of this would be harmful and hopeless. The people had given their allegiance to the government and had remodelled their state organizations in good faith.[1059]

"Southern outrages" now began afresh. The Radical press and Radical politicians began to manufacture tales of outrage and cruelty on the part of the southern whites against negroes. There had been all along a disposition to look for "outrages" in the South, and the reports of Schurz and the Joint Committee on Reconstruction seemed to put the seal of truth on the tissue of falsehoods, and for campaign purposes "outrages" were increased. For several years, judging from some accounts, the entire white population--men, women, and children--must have given much of their time to persecuting, beating, and killing negroes and northern men. The Radical papers seized upon the silly things said or done by the idlers of bar-rooms and street corners or printed in the small newspapers and magnified them into the "threatening voice of a whole people." Against this mistake General Swayne repeatedly protested. He had no special liking for the southern people, but he scorned to misrepresent the true state of affairs for political capital. During his stay in the state (more than two years) the tenor of his reports was: There was no trouble from the southern whites; northern men were welcomed in a business way; disorder and lawlessness existed in sections of the state, but this was a natural result of long war and civil strife among the people. In his reports, Swayne repeatedly stated that as time went on the condition of affairs was gradually improving. Newspaper correspondents sent to write up conditions in the South went among the most worthless part of the population, in bar-rooms, hotel lobbies, on street corners, in country groceries, and wrote up the doings and sayings of these people as representative of all. Even E. L. Godkin was not above doing such a thing at times.[1060] These writers carefully recorded the idle talk about the negro and the North and dressed it up for Radical information. A favorite plan was to find some woman, coarse and vulgar and cruel-minded, and describe her and her speeches as representative of southern women. The southern newspapers republished such correspondence as specimens of Radical methods. The whites were more and more irritated. This aggravating correspondence and the more aggravating editorials continued in some papers long after the Reconstruction period.[1061]

On the other hand, northern men received little or no social welcome in the South. Most of them would not have been sought after in any section; few representatives of northern culture came South. The indiscretions of some caused the ostracism of all. But that was not the sole reason. General Swayne seemed surprised at "social exclusion" and mentioned it before the Reconstruction sub-committee. But, said an Alabama correspondent, what else can he expect? Why is he surprised? Can the sister, the mother, and the father who have lost their loved ones care to meet those who did the deeds? They meet with respectful treatment; let them not ask too much.[1062]

What the people needed and wanted was a settled and certain policy. The mixed administrations of the provisional authorities and the President, of the Freedmen's Bureau and the army, did not result in respect for the laws. The talk of confiscation and disfranchisement kept the people irritated. They thought that they had already complied with the conditions imposed precedent to admission to the Union and now believed that Congress was acting in bad faith. Many were willing to affiliate even with conservative Republicans in order to overthrow the Radicals. Much was hoped for in the way of good results from the "National Union" movement. Few or none of the northern business men in the state thought that the Radical plan was necessary. They did not expect or desire its success.[1063]

There was a convention of the Conservative party at Selma in July, 1866. Delegates were elected to the National Union convention at Philadelphia.[1064] The Selma convention indorsed the policy of Johnson and condemned the Radical party as the great obstacle to peace. The most prominent men of the state were present, representing both of the old parties--Whigs and Democrats.[1065] The national platform adopted in Philadelphia stated the principles to which the southerners had now committed themselves, viz.: the war had decided the national character of the Constitution; but the restrictions imposed by it upon the general government were unchanged and the rights and authority of the states were unimpaired; representation in Congress and in the electoral college was a right guaranteed by the Constitution to every state, and Congress had no power to deny such right; Congress had no power to regulate the suffrage; there is no right of withdrawal from the Union; amendments to the Constitution must be made as provided for by the Constitution, and all states had the right to a vote on an amendment; negroes should receive protection in all rights of person and property; the national debt was declared inviolable, the Confederate debt utterly invalid; and Andrew Johnson's administration was indorsed.[1066]

Ex-Governor Parsons and others from Alabama spoke in New York, New Jersey, Maine, and Pennsylvania, at National Union meetings. Parsons told the North that the conservative people of Alabama were in charge of the administration, and would not send extreme men to Congress; the representatives chosen had opposed secession. The "Union" party,--a large one in the state,--he said, had hoped that after the war each individual would have to answer for himself, but instead all were suffering in common.[1067]

The opposition party was weak in numbers and especially weak in leaders. The tory and deserter element, with a few from the obstructionists of the war time and malcontents of the present who wanted office, made up the native portion of the party. Northern adventurers, principally agents of the Freedmen's Bureau, teachers and missionaries, and men who had failed to succeed in some southern speculation, with a number of those who follow in the path of armies to secure the spoils, composed the alien wing of the opposition party.[1068] The fundamental principle upon which the existence of the party was based required the destruction of present institutions and the creation of a new political people who should be kept in power by Federal authority. The northern soldiers of fortune saw at once that it would be necessary to give the ballot to the negro. The native Radicals disliked the idea of negro suffrage and seemed to think that the central government should proscribe all others, place them in power and hold them there by armed force until they could create a party.

Such a party could secure a northern alliance only with the extreme Radical wing of the Republican party. A convention of "Southern Unionists" was held in Washington, in July, 1866, which issued an address to the "loyalists" of the South, declaring that the reconstruction of the southern state governments must be based on constitutional principles, and the present despotism under an atrocious leadership must not be permitted to remain; the rights of the citizens must not be left to the protection of the states, but Congress must take charge of the matter and make protection coextensive with citizenship; under the present state governments, with "rebels" controlling, there would be no safety for loyalists,--they must rely on Congress for protection. A meeting of "southern loyalists" was called to be held in September, in Independence Hall in Philadelphia.[1069] The Alabama delegates to this convention were George Reese, D. H. Bingham, M. J. Saffold, and J. H. Larcombe. This Philadelphia convention condemned the "rebellion as unparalleled for its causelessness, its cruelty, and its criminality." "The unhappy policy" of the President was "unjust, oppressive, and intolerable." The policy of Congress was indorsed, but regret was expressed that it did not provide by law for the greater security of the "loyal" people in the southern states. Demand was made for "the establishment of influences of patriotism and justice" in each of the southern states. Washington, Lincoln, the Declaration of Independence, Philadelphia, and Independence Hall--all were brought in. The question of negro suffrage was discussed, and most of the delegates favored it. Of the five delegates from Alabama, two announced themselves against it.[1070] At a Radical convention in Philadelphia about the same time the delegates from Alabama were Albert Griffin, an adventurer from Ohio; D. H. Bingham, a bitter tory, almost demented with hate; and M. J. Saffold, who had been an obstructionist during the war. Here was the beginning of the alliance of carpet-bagger and scalawag that was destined to ruin the state in six years of peace worse than four years of war had done. The convention indulged in unstinted abuse of Johnson and demanded "no mercy" for Davis. Bingham was one of the committee that presented the hysterical report demanding the destruction of the provisional governments in the South. Saffold opposed the negro suffrage plank. He had no prejudice himself, he explained, but thought it was not expedient. He was hissed and evidently brought to the correct opinion.[1071]

After the report of the Joint Committee on Reconstruction in 1866 it was believed by the Radicals that Congress would be victorious over the President, and the party in Alabama that expected to control the government under the new régime began to hold meetings and organize preparatory to dividing the offices. January 8-9, 1867, a thinly attended "Unconditional Union Mass-meeting" was held at Moulton, in Lawrence County. Eleven of the counties of north Alabama were represented, the hill and mountain people predominating. Nicholas Davis, who presided, said that none but "loyal" men must control the states, lately in rebellion.[1072] The action of Congress was commended by the convention; the proposed Fourteenth Amendment was indorsed; and Congress was asked to distinguish between the "precipitators" and those "coerced or otherwise led by the usurpers."[1073] They asked for $100 a year bounty for all Union soldiers from north Alabama, and for the compensation of Unionists for property lost during the war. The leaders here present were Freedmen's Bureau agents, Confederate deserters, and former obstructionists.[1074]

A "Union" convention was held in Huntsville, March 4, 1867. Seventeen north Alabama counties were represented by much the same crowd that attended the Moulton convention.[1075] General Swayne was there, carried along by the current, and, it was said, hoping for high office under the new régime.[1076] The convention declared that a large portion of the people of the South had been opposed to secession, but rather than have civil war at home had acquiesced in the revolution; that the true position of these "unionists" now was with the party that would protect them against future rebellion; it was necessary that the Federal government be strengthened; the "union" men of each county were asked to hold meetings and send delegates to a state convention to be held during the summer.[1077]

The spring of 1867 saw the white Radical party stronger than it ever was again. The few native whites who were to take part in the Reconstruction had chosen their side. After this time the party gradually lost all its respectable members. The carpet-baggers and Bureau agents had not yet shown their strength. The scalawags did not foresee that to the carpet-baggers would fall the lion's share of the plunder, owing to their control over the negro vote.

The President's plan failed, not because of any inherent defect in itself, but because of the bungling manner in which it was administered. If President Johnson had been content to place confidence in any one of the agencies to which were intrusted the government of the South, it would have been better. Had the governments set up by him been endowed with vigor, it is probable that Congress would not have fallen wholly under the control of the Radicals. The penalty for the indiscretions of the President was visited upon the South. To-day the southern people like to believe that, had Lincoln lived, his policy would have succeeded, and the horrors of Reconstruction would have been mitigated or prevented. Johnson's policy was that of Lincoln, except that he reserved to himself a much larger part in setting up and running the provisional governments. He established state governments, pronounced them constitutional, completed, perfected, and asked Congress to recognize them before he had proclaimed the rebellion at an end or restored the privilege of the writ of habeas corpus.[1078]

He interfered himself, and allowed or ordered the army to interfere, in the smallest details of local administration. The military rule in Alabama was on the whole as well administered as it could be, which is seldom well. There were too few soldiers and the posts were too widely separated for the exercise of any firm or consistent authority. But the people were sorry to see even the worst of this give place to the reign of carpet-bagger, scalawag, and negro. The interference of the army and the President discredited the civil government in the minds of the people. The absolute rule of the President over the whole of ten states, though never used for bad purposes, was, nevertheless, not to be viewed with equanimity by those who were afraid of the almost absolute power that the executive had assumed during the war. That the power had not been used for bad purposes was no guarantee against future misuse. There was some excuse for the pretended fright of the Radical leaders, like Sumner and Stevens, and the real anxiety of more moderate men, at the dictatorial course of Johnson. But it must be said that a desire for a share in political appointments was a cause of much of this "real anxiety."

From 1865 to 1868, and even later, there was, for all practical purposes, over the greater part of the people of Alabama, no government at all. There was little disorder; the people were busy with their own affairs. Public opinion ruled the respectable people. Until the close of Reconstruction, the military and civil government touched the people mainly to annoy. From 1865 to 1874 government and respect for government were weakened to a degree from which it has not yet recovered. The people governed themselves extra-legally and have not recovered from the practice.

By taking cases from the civil authorities for trial before military commission, by dictating the course of the civil government, by nullifying the actions of the highest executive officers, the acts of the legislature, and the decisions of the highest courts, the army was mainly responsible for the lack of confidence in the civil administration.

X. MILITARY GOVERNMENT, 1865-1866

In the account of the affairs thus far we have seen many evidences of the active participation of the military power of the United States in the conduct of government in Alabama. It will be useful at this point to examine with some care the form and scope of the authority concerned during the period of the provisional state government's existence.

The Military Division of the Tennessee (1863), under General Grant, included the Department of the Cumberland, under the command of General George H. Thomas. Several counties of north Alabama in the possession of the Federals formed a part of this department and for three years were governed entirely by the army, except for two short intervals, when the Federal forces were flanked and forced to retire. Anarchy then reigned, for the civil government had been almost entirely destroyed in ten of the northern counties. June 7, 1865, the Military Division of the Tennessee was reorganized under General Thomas, and included in it was the Department of Alabama, commanded by General C. R. Woods, with headquarters at Mobile. In October, 1865, Georgia and Alabama were united into a military province called the Department of the Gulf, under General Woods. This department was still in the Military Division of the Tennessee, commanded by General Thomas. June 1, 1866, Alabama and Georgia were formed into the Department of the South and were still in Thomas's Military Division of the Tennessee. General Woods commanded, with headquarters at Macon, Georgia. Alabama was ruled by General Swayne from Montgomery. August 6, 1866, the Military Division of the Tennessee was discontinued and was made a department, General Thomas retaining the command. In this department Georgia and Alabama formed the District of the Chattahoochee, with headquarters at Macon, commanded by General Woods. The Sub-district of Alabama was commanded by General Swayne, who was also in charge of the Freedmen's Bureau at Montgomery. This organization lasted until the Third Military District, under the Reconstruction Acts of March 2, 1867, was formed of Alabama, Florida, and Georgia, and General Thomas (immediately superseded by General Pope) was put in command.[1079]

The Military Occupation

Within a month after the surrender of Lee, Alabama was occupied by Federal armies, and garrisons were being stationed at one or more points in all the more populous counties. Everywhere, the state and county government was broken up by the military authorities, who were forbidden to recognize any civil authority in the state. Into each of the 52 counties soldiers were sent to administer the oath of allegiance to the United States to any one who wished to take it. Most people were indifferent about it.[1080]

For several months there was no civil government at all, and no government of any kind except in the immediate vicinity of the army posts and the towns where military officers and Freedmen's Bureau agents regulated the conduct of the negroes, and incidentally of the whites, well or badly, according to their abilities and prejudices. Some of the officers, especially those of higher rank, endeavored to pacify the land, gave good advice to the negroes, and were considerate in their relations with the whites; others incited the blacks to all sorts of deviltry and were a terror to the whites.[1081] Each official in his little district ruled as supreme as the Czar of all the Russias. He was the first and last authority on most of the affairs of the community.

Early in the summer each city and its surrounding territory was formed into a military district under the command of a general officer, who was subject to the orders of General Woods at Mobile. There were the districts of Mobile, Montgomery, Talladega, and Huntsville--each with a dozen or more counties attached. Then there were isolated posts in each. The district was governed by the rules applying to a "separate brigade" in the army.[1082] The different posts, districts, and departments were formed, discontinued, reorganized, with lightning rapidity. Hardly a single day passed without some change necessitated by the resignation or muster out of officers or troops. Commanding officers stayed a few days or a few weeks at a post, and were relieved or discharged. Some of the officers spent much of their time pulling wires to keep from being mustered out. Others resigned as soon as their resignations would be accepted. Few or none had any adequate knowledge of conditions in their own districts, nor was it possible for them to acquire a knowledge of affairs in the short time they remained at any one post.

After the establishment of the provisional government, the army was supposed to retire into the background, leaving ordinary matters of administration to the civil government. This it did not do, but constantly interfered in all affairs of government. The army officers cannot be blamed for their meddling with the civil administration, for the President did the same and seemed to have little confidence in the governments he had erected, though he gave good accounts of them to Congress. The struggle at Washington between the President and Congress over Reconstruction confused the military authorities as to the proper policy to pursue. The instructions from the President and from General Grant were sometimes in conflict.

In August, 1865, the military commander published the President's Amnesty Proclamation of May 29, 1865, and sent officers to each county to administer the oath.[1083] Instructions were given that "no improper persons are to be permitted to take the oath." The oath was to be signed in triplicate, one copy for the Department of State, one for military headquarters, and one for the party taking the oath. Regulations were prescribed for making special applications for pardon by those excepted under the Amnesty Proclamation. There were 120 stations in the state where officials administered the oath of amnesty.[1084] The military authorities gave the term "improper persons" a broad construction and excluded many who applied to take the oath. The various officers differed greatly in their enforcement of the regulations. Special applications for pardon had to go through military channels, and that meant delays of weeks or months; so, after civil officials were appointed in Alabama, "improper persons" took the oath before them, and then their papers were sent at once to Washington for the attention of the President. There was some scandal about the provisional secretary of state accepting reward for pushing certain applications for pardon. But there was no need to use influence, for the President pardoned all who applied.

Soon after Parsons was appointed provisional governor, an order stated that the United States forces would be used to assist in the restoration of order and civil law throughout the state and would act in support of the civil authorities as soon as the latter were appointed and qualified. The military authorities were instructed to avoid as far as possible any assumption or exercise of the functions of civil tribunals. No arrest or imprisonment for debt was to be made or allowed, and depredations by United States troops upon private property were to be repressed.[1085]

The Army and the Colored Population

As acting agents of the Freedmen's Bureau, the army officers had to do with all that concerned the negroes; but sometimes, in a different capacity, they issued regulations concerning the colored race. It is difficult to distinguish between their actions as Bureau agents and as army officers. On the whole, it seems that each officer of the army considered himself ex officio an acting agent of the Bureau.

Soon after the occupation of Montgomery, an order was issued prohibiting negroes from occupying houses in the city without the consent of the owner. They had to vacate unless they could get permission. Negroes in rightful possession had to show certificates to that effect from the owner. All unemployed negroes were advised to go to work, as the United States would not support them in idleness.[1086] This order was intended to discourage the tendency of the negro population to flock to the garrison towns. The first troops to arrive were almost smothered by the welcoming blacks, who were disposed to depend upon the army for maintenance. The officers were at first alarmed at the great crowds of blacks who swarmed around them, and tried hard for a time to induce them to go back home to work. Their efforts were successful in some instances. In view of the fact that the posts and garrisons were the gathering places of great numbers of unemployed blacks, an order, issued in August, 1865, instructed the commanders of posts and garrisons to prohibit the loitering of negroes around the posts and to discourage the indolence of the blacks.[1087]

In Mobile some kind of civil government must have been set up under the direction of the military authorities, for we hear of an order issued by General Andrews that in all courts and judicial proceedings in the District of Mobile the negro should have the same standing as the whites.[1088] These may have been Bureau courts.

It was represented to the military commander that the negroes of Alabama had aided the Federals in April and May, 1865, by bringing into the lines, or by destroying, stock, provisions, and property that would aid the Confederacy, and that they were now being arrested by the officers of the provisional government for larceny and arson. So he ordered that the civil authorities be prohibited from arresting, trying, or imprisoning any negro for any offence committed before the surrender of Taylor (on May 4, 1865), except by permission of military headquarters or of the assistant commissioner of the Freedmen's Bureau.[1089] When the Federal armies passed through the state in April and May, 1865, thousands of negroes had seized the farm stock and followed the army, for a few days at least. There was more of this seizure of property by negroes after garrisons were stationed in the towns. The order was so construed that practically no negro could be arrested for stealing when he was setting out for town and the Bureau. A few weeks before the order was issued, Woods stated, "I do not interfere with civil affairs at all unless called upon by the governor of the state to assist the civil authorities."[1090]

Terrible stories of cruel treatment of the negroes were brought to Woods by the Bureau officials, and he sent detachments of soldiers to investigate the reports. Nothing was done except to march through the country and frighten the timid by a display of armed force, which was evidently all the agents wanted. One detachment scoured the counties of Clarke, Marengo, Washington, and Choctaw, investigating the reports of the agents.[1091]

The commanding officers at some posts authorized militia officers of the provisional government to disarm the freedmen when outbreaks were threatened. But after Christmas General Swayne ordered that no authority be delegated by officers to civilians for dealing with freedmen, but that such cases be referred to himself as the assistant commissioner of the Freedmen's Bureau.[1092] There had been great fear among some classes of people that the negroes would engage in plots to massacre the whites and secure possession of the property, which they were assured by negro soldiers and Bureau agents the governor meant them to have. About Christmas, 1865, the fear was greatest. For six months the blacks had been eagerly striving to get possession of firearms. The soldiers and speculators made it easy for them to obtain them. In Russell County $3000 worth of new Spencer rifles were found hidden in negro cabins.[1093] There were few firearms among the whites, for all had been used in war and were therefore seized by the United States government. Some feared that the negroes were preparing for an uprising, but it is more probable that they merely wanted guns as a mark of freedom. The purchase of firearms by whites was discouraged by the army. The sale of arms and ammunition into the interior was forbidden, but speculators managed to sell both. General Smith, at Mobile, had one of them--Dieterich--arrested and confined in the military prison at Mobile.[1094] The Mobile Daily Register was warned that it must not print articles about impending negro insurrections,[1095] a very good regulation; but the violent negro sheet in Mobile was not noticed, though it was a cause of excitement among the blacks.

In the fall of 1866 it was reported to the Secretary of State, Mr. Seward, that negroes were being induced to go to Peru on promise of higher wages. Seward induced Howard, the commissioner of the Freedmen's Bureau, to have the Bureau annul or disapprove all contracts of freedmen to go beyond the limits of the United States. General Swayne, who was now both assistant commissioner and military commander, was directed to enforce Howard's order in Alabama.[1096]

Administration of Justice by the Army

From April to December, 1865, all trade and commerce had to go on under the regulations prescribed by the army. The restrictions placed on trade caused demoralization both in the army and among the Treasury agents, who worked under the protection of the military.[1097] It was ordered that civilians guilty of stealing government cotton should be punished, after trial and conviction by military commission, according to the statutes of Alabama in force before the war. Later all cases of theft of government property were tried by military commission.[1098]

When the cotton agents were tried by military commission[1099] there arose a conflict of authority between the military authorities and the Federal Judge. One agent, T. C. A. Dexter, was arrested and sued out a writ of habeas corpus before Busteed, the Federal judge. The writ was served on General Woods and Colonel Hunter Brooke, who presided over the military commission. The officers declined to obey, saying that a military commission had been convened to try Dexter, and that no interference of the civil authorities would be permitted. Busteed ordered Dexter to be discharged, and Woods to appear before him and show why he should not be prosecuted for contempt of court. Woods paid no attention to this order, and Busteed sent the United States marshal to arrest him. The marshal reported that he was unable to get into the presence of Woods, because the military guard was instructed not to allow him to pass. Woods sent a message to Busteed that the writ had not been restored in Alabama. Busteed made a protest to the President and asserted that the trial could not lawfully proceed except in the civil courts. President Johnson sustained the course of General Woods, and thereby gave a blow to his provisional government, for Busteed at once adjourned his court--the only Federal court in the state. The sentiment of the people was with Busteed in spite of his own notorious character and that of the defendant. All wanted the civil government to take charge of affairs.[1100]

Of the cases of civilians tried by summary courts in the summer of 1865, there is no official record; of the cases tried by military commission during 1865 and 1866, only incomplete records are to be found. A partial list of the cases, with charges and sentences, is here given:--

Wilson H. Gordon,[1101] civilian, murder of negro, May 14, 1865. Convicted.

Samuel Smiley,[1101] civilian, murder of negro, 1865. Acquitted.

T. J. Carver,[1102] cotton agent, stealing cotton. Fined $90,000 and one year's imprisonment.

T. C. A. Dexter,[1103] cotton agent, stealing cotton (3321 bales) and selling appointment of cotton agent to Carver for $25,000. Fined $250,000 and imprisonment for one year.

William Ludlow,[1104] civilian, stealing United States stock. Four years' imprisonment.

L. J. Britton,[1105] civilian, guerilla warfare and robbery. Fined $5000 and imprisonment for ten years. (Fine remitted by reviewing officer.)

George M. Cunningham,[1106] late Second Lieutenant 47th Ill. Vol. Inf., stealing government stores. Fined $500.

John C. Richardson,[1107] civilian, guerilla warfare and robbery. Imprisonment for ten years.

Owen McLarney,[1107] civilian, assault on soldier. Acquitted.

William B. Rowls,[1107] civilian, guerilla warfare and robbery. Imprisonment for ten years.

Samuel Beckham,[1107] civilian, receiving stolen property. Imprisonment for three years.

John Johnson,[1108] civilian, robbery and pretending to be United States officer. Fined $100, "to be appropriated to the use of the Freedmen's Bureau."

Abraham Harper,[1108] civilian, robbery and pretending to be United States officer. Fined $100 "to be appropriated to the use of the Freedmen's Bureau."

Most of the civilians tried by the military commissions were camp followers and discharged soldiers of the United States army. Those charged with guerilla warfare were regularly enlisted Confederate soldiers and were accused by the tory element, who were guilty of most of the guerilla warfare.[1109] It was impossible to punish outlaws for any depredations committed during the war, and for several months after the surrender, if they claimed to be "loyalists," which they usually did. The civil authorities were forbidden to arrest, try, and imprison discharged soldiers of the United States army for acts committed while in service.[1110] A similar order withdrew all "loyal" persons from the jurisdiction of the civil courts so far as concerned actions during or growing out of the war.[1111] The negroes had already been withdrawn from the authority of the civil courts so far as similar offences were concerned.[1112]

Upon the complaint of United States officials collecting taxes and revenues of the refusal of individuals to pay, the military commanders over the state were ordered to arrest and try by military commission persons who refused or neglected "to pay these just dues."[1113]

Numerous complaints of arbitrary arrests and of the unwarranted seizure of private property called forth an order from General Thomas, directing that the persons and property of all citizens must be respected. There was to be no interference with or arrests of citizens unless upon proper authority from the district commander, and then only after well-supported complaint.[1114]

The local military authorities were directed to arrest persons who had been or might be charged with offences against officers, agents, citizens, and inhabitants of the United States, in cases where the civil authorities had failed, neglected, or been unable to bring the offending parties to trial. Persons so arrested were to be confined by the military until a proper tribunal might be ready and willing to try them.[1115] This was another one of many blows at the civil government permitted by the President, who allowed the army to judge for itself as to when it should interfere.

These are the more important orders issued by the military authority relating to public affairs in Alabama during the existence of the two provisional or "Johnson" state governments. It will be seen from the scope of the orders that the local military officials had the power of constant interference with the civil government. A large part of the population was withdrawn from the jurisdiction of the civil administration. The officials of the latter had no real power, for they were subject to frequent reproof and their proceedings to frequent revision by the army officers. Both Governor Parsons and Governor Patton wanted the army removed, confident that the civil government could do better than both together. Parsons appealed to Johnson to remove the army or prohibit its interference.[1116] He complained that the military officials had caused and were still causing much injustice by deciding grave questions of law and equity upon ex parte statements. Personal rights were subject to captious and uncertain regulations. The tenure of property was uncertain, and citizens felt insecure when the army decided complicated cases of title to land and questions of public morals. A military commission at Huntsville, acting under direction of General Thomas, had assumed to decide questions of title to property, and in one case, a widow was alleged to have been turned out of her home.[1117] The citizens of Montgomery were indignant because the military authorities had issued licenses for the sale of liquor, and had permitted prostitution by licensing houses of ill repute. Circular No. 1, District of Montgomery, September 9, 1865, required that all public women must register at the office of the provost marshal; that each head of a disorderly house must pay a license tax of $25 a week in addition to $5 a week for each inmate, and that medical inspection should be provided for by military authority. In case of violation of these regulations a fine of $100 would be imposed for each offence, and ten to thirty days' imprisonment. The bishop and all the clergy of the Episcopal Church were suspended and the churches closed for several months because the bishop refused to order a prayer for the President.[1118] The restaurant of Joiner and Company, at Stevenson, was closed by order of the post commander because two negro soldiers were refused the privilege of dining at the regular table.[1119] Admiral Semmes, after being pardoned, was elected mayor of Mobile, but the President interfered and refused to allow him to serve. Many arrests and many more investigations were made at the instigation of the tory or "union" element, and on charges made by negroes.[1120]

Relation between the Army and the People

The unsatisfactory character of the military rule was due in a large measure to the fact that the white volunteers were early mustered out, leaving only a few regulars and several regiments of negro troops to garrison the country.[1121] These negro troops were a source of disorder among the blacks, and were under slack discipline. Outrages and robberies by them were of frequent occurrence. There was ill feeling between the white and the black troops. Even when the freedmen utterly refused to go to work, they behaved well, as a rule, except where negro troops were stationed. There is no reason to believe that it was not more the fault of the white officers than of the black soldiers, for black soldiers were amenable to discipline when they had respectable officers. Truman reported to the President that the negro troops should be removed, because "to a great extent they incite the freedmen to deeds of violence and encourage them in idleness."[1122] The white troops, most of them regulars, behaved better, so far as their relations with the white citizens were concerned. The general officers were as a rule gentlemen, generous and considerate. So much so, that some rabid newspaper correspondents complained because the West Pointers treated the southerners with too much consideration.[1123] In the larger posts discipline was fairly good, but at small, detached posts in remote districts the soldiers, usually, but not always, the black ones, were a scourge to the state. They ravaged the country almost as completely as during the war.[1124] The numerous reports of General Swayne show that there was no necessity for garrisons in the state. He wanted, he said, a small body of cavalry to catch fugitives from justice, not a force to overcome opposition. The presence of the larger forces of infantry created a great deal of disorder. The soldiers were not amenable to civil law, the refining restraints of home were lacking, and discipline was relaxed.[1125]

Of the subordinate officers some were good and some were not, and the latter, when away from the control of their superior officers and in command of lawless men, ravaged the back country and acted like brigands. For ten years after the war the general orders of the various military districts, departments, and divisions are filled with orders publishing the results of court-martial proceedings, which show the demoralization of the class of soldiers who remained in the army after the war. The best men clamored for their discharge when the war ended and went home. The more disorderly men, for whom life in garrison in time of peace was too tame, remained, and all sorts of disorder resulted. Finally "Benzine" boards, as they were called, had to take hold of the matter, and numbers of men who had done good service during the war were discharged because they were unable to submit to discipline in time of peace.

The rule of the army might have been better, especially in 1865, had there not been so many changes of local and district commanders and headquarters. Some counties remained in the same military jurisdiction a month or two, others a week or two, several for two or three days only. The people did not know how to proceed in order to get military justice. Orders were issued that business must proceed through military channels. This cut off the citizen from personal appeal to headquarters, unless he was a man of much influence. Often it was difficult to ascertain just what military channels were. Headquarters and commanders often changed before an application or a petition reached its destination.[1126]

The President merited failure with his plan of restoration because he showed so little confidence in the governments he had established. He was constantly interfering on the slightest pretexts. He asked Congress to admit the states into the Union, and said that order was restored and the state governments in good running order, while at the same time he had not restored the writ of habeas corpus, had not proclaimed the "rebellion" at an end, and was in the habit of allowing and directing the interference of the army in the gravest questions that confronted the civil government. In this way he discredited his own work, even in the eyes of those who wished it to succeed. His intentions were good, but his judgment was certainly at fault.

The army authorities went on in their accustomed way until Swayne was placed in command, June 1, 1866, when a more sensible policy was inaugurated, and there was less friction. Swayne aspired to control the governor and legislature by advice and demands rather than to rule through the army. There were few soldiers in the state after the summer of 1866. Order was good, except for the disturbing influence of negro troops and individual Bureau agents. There were in remote districts outbreaks of lawlessness which neither the army nor the state government could suppress. The infantry could not chase outlaws; the state government was too weak to enforce its orders or to command respect as long as the army should stay. At their best the army and the civil administration neutralized the efforts and paralyzed the energies of each other. There were two governments side by side, the authority of each overlapping that of the other, while the Freedmen's Bureau, a third government, supported by the army, was much inclined to use its powers. The result was that most of the people went without government.

On the 28th of March, 1867, the policy of Johnson came to its logical end in failure. General Grant then issued the order which overturned the civil government established by the President. In Alabama, which was to form a part of the Third Military District, all elections for state and county officials were disallowed until the arrival of the commander of the district. All persons elected to office during the month of March (after the passage of the Reconstruction Acts) were ordered to report to military headquarters for the action of the new military governor.[1127] Military government then entered on a new phase.