Essays on the Civil War and Reconstruction and related topics

Prefatory Note

Of the essays included in this volume all but one — that on "The Process of Reconstruction" — have been published before during the last eleven years : four in the Political Science Quarterly, one in the Yale Review, and one in the " Papers of the American Historical Association." For the purpose of their present appearance all have been subjected to revision, which has resulted in some cases in considerable modifications. The first five essays are devoted immediately to various phases of the Civil War and Reconstruction. The last two, while not concerned exclusively with those topics, have nevertheless such a relation to the legal and political questions treated as to justify their inclusion in the volume.

To the younger generation of reading men at the present day the military history of the Civil War is familiar or readily accessible ; the constitutional and political history is neither. As to the Reconstruction, the term is to most people merely vm PREFACE

a synonym for bad government, and conveys no idea of the profound problems of statecraft that had to be solved between 1865 and 1870. The essays collected in the following pages have been written with reference to this situation. If in any degree they shall have contributed, either through statement, implication, or even omission, to throw light on the actual history of the time with which they deal, the end of the collection will have been attained.

NOTE TO THE REVISED EDITION

For the sake of greater homogeneity and with a view to completeness in the general survey of Reconstruction, the final essay in the first edition has been omitted, and for it has been substituted the essay on "The Undoing of Reconstruction," which appeared in the Atlantic Monthly in 1901.

Contents

PAGE

The Constitution of the United States in Civil

War I

II

By the act of March 2, 1867, the ten Southern states affected were divided into five military districts, each to be commanded by an officer not below the rank of brigadier-general. The primary duties of these officers were

to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals.

For the execution of these duties the commanders could either allow the local civil tribunals to try offenders, or organize military tribunals for the purpose. In case the latter method were employed, the sentence of the tribunal was to be subject to approval by the district commander; and, if it involved the death penalty, to the approval of the President. Interference with the military under color of state authority was declared null and void, while the existing civil governments in the states were declared provisional only, and subject to the paramount authority of the United States, to abolish, modify, control or supersede. In these provisions were defined the functions of the commanders so far as the preservation of order and the conduct of civil administration were concerned. Their duties in the reorganization of the state governments were set forth in the supplementary act of March 23, and will be considered elsewhere.

On the nth and 15th of March orders from army headquarters made the following assignments of commanders : First district, Virginia, General Schofield ; second district. North Carolina and South Carolina, General Sickles ; third district, Georgia, Florida and Alabama, General Pope ; fourth district, Mississippi and Arkansas, General Ord ; fifth district, Louisiana and Texas, General Sheridan.^ All these officers had distinguished themselves in the war and had acquired reputations that guaranteed success in any military capacity. But the positions in which they now found themselves demanded other than purely

1 None of these officers remained in command of his district till reconstruction was complete. The following is a list of their successors : First district, Stoneman, Webb, Canby; second district, Canby ; third district, Meade; fourth district, Gillem, McDowell, Ames; fifth district, Griffin, Mower, Hancock, Buchanan, Reynolds, Canby.

military qualities. They were to carry out a great political policy, which was to be resisted not by armed force, but by political means. They were to act under a commander-in-chief who was a violent adversary of the policy, and under a General of the Army whose conscientious efforts to maintain an impartial attitude failed to conceal his disposition to favor the policy. They had to deal, moreover, with civil governments which their commander-in-chief insisted were constitutional organizations, but which Congress had declared destitute of legality. Though military officers are not supposed to have political opinions, the five generals could hardly fail to be influenced by their personal conclusions on the great issues of the day. It was generally known that Sheridan and Pope were in favor of strong measures in dealing with the South, and that Sickles would readily adopt a radical line of action.^ If Schofield and Ord, from whatever motives, failed to conform to this example, it was inevitable that they should be displeasing to the extremists in Congress and should be sustained by the moderate Republicans and the Democrats. Political, rather than military, considerations would necessarily form the basis for

1 Cf. Blaine, Twenty Years of Congress, II, 297, note. This note, satisfactory for the subject in connection with which I have cited it, contains, however, a number of those inaccuracies of statement and imphcation which mar every part of this useful but untrustworthy work.

judgment upon the conduct of the commanders; and in order to sustain their honorable reputations a degree of tact and discretion in civil affairs was essential that far exceeded anything that had been required of them before.

As to the mass of the whites — the people, in a political sense, of the South — no possible conduct of the military rulers could be expected to win their approval. The necessity of submission to force had been thoroughly learned, and no organized resistance was attempted to the few thousand troops that were scattered over the ten states.^ But the loss of the self-government which had gradually been restored during the last two years caused deep indignation and resentment. Apart from the dread of approaching negro domination, the mere consciousness that the center of authority was at military headquarters, and not at the state capital, disheartened the most moderate and progressive classes. It soon appeared, moreover, that military government was not to be simply nominal ; the orders of the commanders reached the commonest concerns of every-day life, and created the impression of a very real tyranny.

At the outset all five generals announced a pur-

1 The adjutant-general's report of October 20, 1867, gives the total force in the ten states as 19,320, distributed among 134 posts. Richmond and New Orleans had about looo men each; but at no other post were there as many as 500. Of the total force, over 70CX) were in the fifth district — Louisiana and Texas.

pose, and most of them a desire, to interfere as little as possible with the ordinary civil administration. ^ Officials of the existing governments were directed to continue in the performance of their duties until duly superseded. All elections under state laws were, however, forbidden, since the negroes were to be clothed with the suffrage before the popular will should again be consulted. As to the administration of justice, whenever it appeared to the military officers that the ordinary courts were not sufficiently active or impartial in their work, cases were transferred to the military tribunals that were expressly authorized by the Reconstruction Act. The punishment of blacks by whipping or maiming, which was provided for by recent state acts, was prohibited at once, in accordance with a rider in the Army Appropriation Act of March 2, 1867. It was inevitable that the summary overriding of the established order, on however moderate a scale, should engender conflicts of authority and consequent friction ; but the only result was that the assertion of military control in the administration of both civil and criminal law increased steadily in scope in all the districts as the months rolled on. Each fresh recourse to arbitrary authority aroused a great storm of reproach and denunciation from the Democratic

1 The most important orders and correspondence relating to military government in its initial and determining stages are embodied in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong.

press both North and South, and in June the administration itself, through a published opinion of Attorney-General Stanbery, harshly disapproved the policy adopted by most of the officers. This brought a crisis and Congress, hastily reassembling, conclusively defined the scope of the military power by the supplementary legislation of July 19.

Ill

The most harassing question that had to be dealt with by the generals on assuming their commands was that of their relation to the officers of the existing state governments. The act of March 2 declared these governments to be provisional only and subject to the paramount authority of the United States "to abolish, modify, control or supersede the same," but did not expressly empower the district commanders to wield this paramount authority. In pursuance of their express power to maintain order the generals were, however, obliged to assume that a control over the perso7inel of the state administration was implied. Removals from office, accordingly, were made from the beginning on grounds of inefficiency or of obstruction to the work of registering the negroes. As removals did not abolish the offices, but were followed by appointments, military headquarters tended to become the center of a keen struggle for place and patronage. The mutual recriminations of the parties to such struggles were echoed throughout the land and contributed one more element to the embarrassment of the commanders. The manner of filling vacancies caused by removal or otherwise also gave rise to serious discussion. Under military law there seemed no doubt that an officer or soldier could be detailed by the commander to perform the duties of any position. This method was employed in many cases ; but the supply of troops was entirely inadequate to the demand for non-military services and resort had to be made to civilians. At this point, however, important questions of constitutional law arose. What was the legal status of a civilian appointed, for example, governor of Louisiana.? Was he a state or a federal officer } Certainly not the former; for apart from the question as to whether any state in the constitutional sense existed in Louisiana, no officer of such a state could be conceived as deriving his tenure from the will of an army officer. But if the appointee was a federal officer, why should he not be subject to the constitutional requirement of appointment by the President, with the advice and consent of the Senate .? Congress might, under the constitution, vest the appointment of inferior officers in ** the President alone, in the courts of law or in the heads of departments";^ but there seemed no basis for appointment by a major-general com-

1 Constitution, art. ii, sec. 2.

manding a military district. As a matter of fact, the attempt to define the precise status of civilian appointees was never successful. The radicals in Congress thought they should be designated rather as ''agents" of the district commanders than as officers in any strict sense. ^ It was rather gratifying than otherv/ise to reflect that these ''agents" drew their salaries, not from the army appropriation or any other national funds, but from the treasury of the state.

Serious as were the questions involved in the policy, the commanders were forced by sheer necessity to make civilian appointments from the very outset. In this practice the whole spirit of the reconstruction legislation required that only " loyal " men receive preferment. Thus was begun, even before reconstruction was effected, the process of giving political position and power to a class which, from the nature of the case, could have little influence with the masses of the Southern whites. In the beginning the test of " loyalty" was a record of opposition to secession and of positive hostility, or at least lukewarmness, to the Confederate cause. As the reconstruction proceeded the test was insensibly transformed until, before the end was reached, the prime qualification of the loyal man was approval of the Reconstruction Acts and of negro suffrage. Office-holding thus tended to become the prerogative of those few whites who pro-

1 Cf. Wilson in Cong. Globe, 1st sess., 40th Cong., p. 527.

fessed allegiance to the Republican Party. Only in connection with the registration and after the enfranchisement was complete were the blacks admitted to important official positions. ^

The actual practice of the commanders in respect to removals and appointments varied in the different districts. From Virginia to Texas the construction and application of the powers conferred by the act grew more radical with the progress southward. General Schofield, in Virginia, besieged headquarters with supplications for authoritative rulings upon his powers, and meanwhile exercised the powers with great moderation. Civil officers were not ''removed," but were "suspended" from office and "prohibited from the exercise of the functions thereof until further orders." ^ Civilian appointments were made after consultation with local judicial officers, and the appointees were duly commissioned by the governor of the state. In the Carolinas General Sickles was obliged to assert his authority more freely. He was, however, able to maintain cordial relations with Governors Worth and Orr,2 and this fact smoothed his path somewhat. Removals were made only for positive mis-

1 Five negroes were appointed policemen in Galveston as early as June 10, and there may have been other instances of this kind. — Ann. Cyc, 1867, p. 715.

2 Cf, Special Orders, No. 50 and No. 54, in reference to certain justices of the peace.

3 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong., p. 56.

conduct in office, and were but twelve in number for the first three months of the command.^ Appointments were very numerous, a large number of municipal offices falling vacant by expiration of the incumbents' terms. The extent to which the military power affected the most peaceful aspects of social life is illustrated by the fact that a ** trustee of Newbern Academy " was among those who were clothed with official authority by orders from headquarters. ^ In the third district General Pope assumed at once an extreme position as to the scope of his authority, and proposed to exercise it by deposing Governor Jenkins, of Georgia, for expressing hostility to the Reconstruction Acts. The governor saved himself by a plea of ignorance as to the commander's will, and escaped with nothing worse than a severe scolding, administered in a letter which manifested the same easy self-confidence and fluency of expression that had made its author a little ridiculous in the second Bull Run campaign.3 At the end of May the mayor, chief of police and other municipal officers of Mobile were summarily removed, and their places were filled by '' efficient Union men." The occasion for this was a disturbance that took place in connection with a meeting at which Congressman Kelley, of Pennsylvania, made an address. This exercise of the power of removal and appointment

1 Sickles to Grant, Sen. Ex. Doc, No. 14, ist sess., 40th Cong., attracted very widespread attention, and controversy raged fiercely as to the justice and legality of the action. It was but a few days later that General Sheridan, at New Orleans, took the most decisive step of all in removing Governor Wells, of Louisiana, and appointing Mr. Flanders, a civilian, in his place. Removals and appointments in minor offices ^ had been very frequent in the fifth district, but this last action brought the whole question to a head. As department commander before the passage of the Reconstruction Acts, General Sheridan had conceived a very poor opinion of the leading politicians of both Louisiana and Texas, Governor Wells among them,^ But Wells had influential friends in administration circles at Washington, where Sheridan was particularly disliked ; and moreover, the extension of the discretionary power of a commander to a sphere where very important considerations of influence and emolument were involved excited vehement criticism.

President Johnson was now overwhelmed with demands that the acts of Sheridan and Pope should be overruled. Attorney-General Stanbery had been asked for an opinion on this and other points in the interpretation of the reconstruction laws. His opinion, rendered under the date of

1 The attorney-general of the state and the mayor and city judge of New Orleans were removed March 27.

^ Cf. Sheridan's report for 1866, in Report of Secretary of War, 2d sess,, 39th Cong.

June 12, declared that these acts gave no authority whatever for either removal or appointment of executive or judicial officers of a state.^ But Congress sprang promptly into the breach, and by the supplementary act of July 19 ^ gave to the commanders, in the most unqualified terms, power to remove at their discretion any state officer, and to fill vacancies either by the detail of an officer or soldier, or "by the appointment of some other person." Under this authority there was no longer any room for doubt or ground for hesitation. The act provided further that it should be the " duty " of the commanders to remove from office all persons "disloyal to the government of the United States," and required that new appointees should take the " iron-clad oath." ^

Every facility was thus afforded for a complete control of the persomiel of the civil administration by the commanding officers. When the constitutional conventions under the new registration met in the various states strong pressure was put upon the generals and upon Congress to bring about a " clean sweep " of the existing officials, and a bill requiring such a proceeding was brought before

^ The opinion is in Sen. Ex. Doc, No. 14, 1st sess., 40th Cong.,

2 Given in McPherson, History of the Reconstruction, p. 335.

' The stringent oath required from officers of the United States, by act of July 2, 1862. It could not be taken by any one who had given " voluntary support " to any rebel government, state or Confederate. See infra, p. 184, note.

the House of Representatives. But General Schofield and other officers declared that the adoption of this policy would render government impossible, as there were not available enough competent persons to fill the places vacated, if the iron-clad oath should be required. Until reconstruction was nearly completed, therefore, the commanders were permitted to retain their discretion in the matter, and changes were made, as a rule, oijly for good cause.^ Governor Throckmorton, of Texas, was removed July 30 for having made himself an *' impediment to the execution of " the Reconstruction Acts, and was succeeded by a civilian named Pease.^ Governor Jenkins, of Georgia, who had escaped the power of General Pope, fell quickly before that of General Meade, who succeeded Pope at the beginning of 1868. The governor, having refused to execute warrants on the state treasury for the payment of the expenses of the constitutional convention, was summarily deposed, and his functions were assigned to General Ruger.^ Governor

1 By law of Feb. 6, 1869, the commanders were required to remove all officers who could not take the iron-clad oath. But at that time military government prevailed only in Virginia, Mississippi and Texas.

2 The unsuccessful candidate in the election at which Throckmorton had been chosen governor.

3 The treasury officials, sympathizing with Jenkins, concealed and spirited away the books of the treasury, whereupon the suspected persons were brought before a military commission for punishment. But General Meade's financial path was very thorny. — See his report for 1868.

Humphreys, of Mississippi, was deposed in June, 1868, as an obstacle to reconstruction, and was succeeded by General Ames. In other states governors were removed, but only to facilitate the transition from the military regime to the permanent system under the new constitutions. Of the lesser state officials the changes in personnel wq^yq, naturally the most extensive in the larger towns and cities. It was there that partisan zeal tended to find its most heated expression ; and there also were to be found in the greatest numbers the Union men who could qualify for office under the new law. Before reconstruction was completed, therefore, the municipal administration in all the principal cities was remanned by military authority. The list in which this was wholly or partially the case includes Wilmington, Atlanta, Mobile, Vicksburg, New Orleans, Galveston and Richmond.

IV

In respect to the relation of the district commanders to the laws of the states subjected to their authority, there was room for a difference of opinion similar to that which we have seen in respect to the personnel of the governments. Power to modify or set aside existing laws was not expressly bestowed upon the commanders; and the recognition of civil governments of a provisional character gave room for the implication that the legislation of these governments was to have permanent force. But a different view was acted upon by most of the generals from the beginning. Assuming that they were endowed with all the powers incident to " the military authority of the United States," and that their duty to " protect all persons in their rights of person and property " required the unlimited use of such powers, they refused to regard the state laws as of any significance save as auxiliary to the military government. Whatever validity attached to such laws was due to their tacit or express approval by the commander. General Schofield, in giving to military commissioners the powers of county or police magistrates, directed them to be "governed in the discharge of their duties by the laws of Virginia," so far as these did not conflict with national laws "or orders issued from these headquarters."^ General Sickles specifically proclaimed in force "local laws and municipal regulations not inconsistent with the constitution and laws of the United States or the proclamations of the President, or with . . . regulations . . . prescribed in the orders of the commanding general."^ The implication from these illustrations is clear that existing law could be superseded by the military order — that the district commander had legislative authority. Against this interpretation of the Reconstruc-

1 First district, General Orders, No. 31, May 28, 1867.

2 Second district. General Orders, No. i, March 21, 1867.

tion Act Attorney-General Stanbery argued most earnestly in his opinion of June 12. No power whatever, he declared, was conferred on the commanders in the field of legislation. They were to protect persons and property, but the sole means for this purpose that the law gave them was the power to try offenders by military commission; save where such procedure was deemed necessary the jurisdiction and laws of the old state organization remained intact. But the ingenuity of Mr. Stanbery was of no avail. In the supplementary act of July 19 Congress declared explicitly that the ten state governments, at the time the Reconstruction Act was passed, "were not legal state governments ; and that thereafter said governments, if continued, were to be subject in all respects to the military commanders of the respective districts, and to the paramount authority of Congress." This phraseology assured to the generals the same free hand in respect to state laws as was assured in respect to state officers by other parts of the act.

So far as the criminal law was concerned, the failures of justice which had been alleged as justifying the establishment of military government were attributed to the administration rather than to the content of the law. The military commissions which were constituted with various degrees of system and permanency by the district commanders served very effectively to supplement the regular judiciary in the application of the ordinary state law. No extensive modifications of the law itself, therefore, were considered necessary. When policemen or sheriffs failed to arrest suspected or notorious offenders the troops did the work ; when district-attorneys failed to prosecute vigorously, or judges to hold or adequately to punish offenders, the latter were taken into military custody ; when juries failed to convict, they were supplanted by the military courts. It was fully realized from the outset that, in the condition of public opinion in the South, trial by jury could not be expected to give strict justice to Union men or, in general, to the freedmen. As an alternative, however, for the general establishment of military commissions a remodeling of the jury laws was an obvious expedient. If juries could be empaneled from blacks and whites indiscriminately, the influence of the rebel sentiment would be neutralized. It seemed axiomatic, moreover, that, if the freedmen were qualified to vote, they were qualified for jury service. Accordingly, we find that the more radical commanders — Sickles, Pope and Sheridan — used their authority to decree that the blacks should be accepted as jurors. With the completion of the registration of voters, the attainment of the end sought was simple ; court officers were directed to make up the jury panels from the registration lists.^ General Schofield, in Virginia,

1 Cf. Report of Secretary of War for 1867, vol. i, pp. 304 ss, 331 ss.

l60 MILITARY GOVERNMENT

with his usual wise conservatism, concluded that this method of solving the problem would not be satisfactory, and confined himself, therefore, to the use of military commissions.^

Before the completion of the registration made feasible the method finally employed, the commander in Texas had sought to attain the end by requiring jurors to take the " iron-clad oath." But this was bitterly resented by the Southerners on the ground that it practically excluded native whites from the juries.^ Even the final method caused great friction between the courts and the commanders in Louisiana and Texas. The vast extent and sparse population of the region included in these states made the fifth district altogether the most difficult to deal with in every phase of the reconstruction process. When General Hancock, succeeding Sheridan, assumed command in November, 1867, he formally revoked the order requiring that jurors be chosen from the registered voters, and put the old state laws in operation. This action was an incident of the new commander's general policy, which, as embodied in his famous

1 •' After full consideration I became satisfied that any rule of organization of juries, under laws which require a unanimous verdict to convict . . . must afford a very inadequate protection . . . in a society where a strong prejudice of class or caste exists." — Report of General Schofield in Report of Secretary of War, 1867, vol. i, p. 240.

2 For the correspondence on this matter, see Sen. Ex. Doc, ist sess., 40th Cong., No. 14, pp. 208-210.

DURING RECONSTRUCTION i6l

General Orders, No. 40, reversed that of his predecessor. " Crimes and offenses," he declared, "must be left to the consideration and judgment of the regular civil authorities"; and in Special Orders, No. 203, after reciting that Sheridan's order as to jurors was acting as a clog on justice, he asserted that in determining the qualifications for jurors it was best to carry out the will of the people as expressed in the last legislative act upon the subject.^ The reluctance of General Hancock to interpose, either through military courts or through modification of the jury laws, in the ordinary administration of justice, gave great offense to the loyalists in the South and to the radicals throughout the Union, and was held to have resulted in a widespread revival of crime in the fifth district.^

The changes in the jury laws by military authority affected, of course, both civil and criminal law. Of like scope was the summary abrogation by General Sheridan of a Texas act of 1866 by which the judicial districts of the state were rearranged, the commander holding that the act had been passed for the purpose of legislating two Union judges out of office.^ Of the modifications of

1 For the whole subject see Hancock's report in Report of Secretary of War for 1868; also Ann. Cyc, 1867, pp. 463-4.

2 See his report for a sharp correspondence with Governor Pease, of Texas.

' Sen, Ex. Doc, ist sess., 40th Cong., No. 14, p. 218 et seq.

M criminal law pure and simple, conspicuous examples are found in Sickles' General Orders, No. 10, in which the carrying of deadly weapons was forbidden, the death penalty for certain cases of burglary and larceny was abolished, and the governors of North and South Carolina were endowed with the powers of reprieve and pardon.^ This last provision was probably suggested by a case in which the military power had been effectively invoked by the civil in the interest of mercy. A negro in North Carolina had been convicted of burglary and sentenced to death. The governor believed that the case called for clemency ; but under the state laws he had the power only to pardon and not to commute. As a pardon was not desirable, the case was laid before the district commander, who then, by his paramount military authority, commuted the sentence to imprisonment for ten years.^

The operation of military government in connection with the general police power of the states is illustrated by General Sickles' prohibition of the manufacture of whiskey, on the ground that the grain was needed for food ; by his prohibition of the sale of intoxicating liquor except by innkeepers ; by General Ord's command that illicit stills and their product be sold for the benefit of the poor, on the ground "that poverty increases

^ Sen. Ex. Doc, ist sess,, 40th Cong., No. 14, p. 62. 2 Ibid., p. 76.

where whiskey abounds " ; and by General Sheridan's summary abolition of the Louisiana levee board and the assignment of its duties to commissioners of his own appointment, " in order to have the money distributed for the best interests of the overflowed districts of the state." ^