The United States Since The Civil War by Charles Ramsdell Lingley

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As if impelled by some perverse fate the southern whites during the fall
and winter of 1866-67 did the thing for which the bitterest enemy of the
South might have wished. Except in Tennessee, the legislature of every
confederate state refused with almost complete unanimity to ratify the
Fourteenth Amendment. Natural as the act was, it gave the North
apparently overwhelming proof that the former "rebels" were still
defiant. Encouraged by the results of the election and aroused by the
attitude of the South toward the Amendment, Congress proceeded to
encroach upon prerogatives that had hitherto been considered purely
executive, and also to pass a most extreme plan of reconstruction.

The first of these measures, the Tenure of Office Act, was passed over a
veto on March 2, 1867. By it the President was forbidden to remove civil
officers except with the consent of the Senate. Even the members of the
Cabinet could not be dismissed without the permission of the upper
house, a provision inserted for the protection of Edwin M. Stanton, the
Secretary of War. Stanton was in sympathy with the radical leaders in
Congress and it was essential to them that he be kept in this post of
advantage. General Grant, who had charge of the military establishment,
was made almost independent of the President by a law drafted secretly
by Stanton. On the same day, and over a veto also, was passed the
Reconstruction Act, the most important piece of legislation during the
decade after the war. It represented the desires of Thaddeus Stevens and
was passed mainly because of his masterful leadership. At the outset the
new Act declared the existing southern state governments to be illegal
and inadequate, and divided the South into five military districts. Over
each was to be a commanding general who should preserve order, and
continue civil officers and civil courts, or replace them with military
tribunals as he wished. Under his direction each state was to frame and
adopt a new constitution which must provide for negro suffrage. When
Congress should approve the constitution and when a legislature elected
under its provisions should adopt the Fourteenth Amendment, the state
might be readmitted to the Union.

The Reconstruction Act was remarkable in several features. The provision
imposing negro suffrage was carried through the Senate with difficulty
and only as the result of the tireless activity of Charles Sumner.
Sumner and other radicals were determined that the blacks should be
enfranchised in order that they might protect themselves from hostile
local legislation and also in order that they might form part of a
southern Republican party. Even more noteworthy was the military
character of the Act. The President had already exercised his
prerogative of declaring the country at peace on August 20, 1866, more
than six months before the Act was passed. In the decision in the
Milligan case, which preceded the Act by nearly three months, the
Supreme Court had decided that military tribunals were illegal except
where war made the operation of civil courts impossible. Military
reconstruction was illogical, not to say unlawful, therefore, but
Congress was more interested in a method that promised the speedy
accomplishment of its purposes than it was in the opinions of the
executive and judicial departments.

Despite his dissent from its provisions, the President at once set
military reconstruction in operation. When he mitigated its harshness,
however, where latitude was allowed him, Congress passed additional
acts, over the veto, of course, extending and defining the powers of
the commanding generals. Armed with complete authority, the generals
proceeded to remove many of the ordinary civil officers and to replace
them with their own appointees, to compel order by means of the
soldiery, to set aside court decrees and even to close the courts and
to enact legislation. In the meanwhile a total of 703,000 black and
627,000 white voters were registered, delegates to constitutional
conventions were elected, constitutions were drawn up and adopted which
permitted negro suffrage, and state officers and legislators elected.
In conformity with the provisions of the Act, the newly chosen
legislatures ratified the Fourteenth Amendment to the Constitution,
sent representatives and senators to Washington, where they were
admitted to Congress, and by 1871 the last confederate state was
reconstructed.

The commanding generals were honest and efficient, in the main, even if
their stern rule was distasteful to the South, but the regime of the
newly elected state officers and legislators was a period of dishonesty
and incapacity. Most of the experienced and influential whites had been
excluded from participation in politics through the operation of the
presidential proclamations and the reconstruction acts. In all the
legislatures there were large numbers of blacks--sometimes, indeed, they
were in the majority. Two parties appeared. The radical or Republican
group included the negroes, a few southern whites, commonly called
"scalawags," and various northerners known as "carpet-baggers." These
last were in some cases mere adventurers and in others men of ability
who were attracted to the South for one reason or another, and took
a prominent part in political affairs. The old-time whites held both
kinds in equal detestation. The other party was called conservative or
Democratic, and was composed of the great mass of the whites. Many of
them had been Whigs before the war, but in the face of negro-Republican
domination, nearly all threw in their lot with the conservatives.

Not all the activities of the legislatures were bad. Provisions were
made for education, for example, that were in line with the needs of
the states. Nevertheless, their conduct in the main was such as to
drive the South almost into revolt. In the South Carolina legislature
only twenty-two members out of 155 could read and write. The negroes
were in the majority and although they paid only $143 in taxes
altogether, they helped add $20,000,000 to the state debt in four
years. In Arkansas the running expenses of the state increased 1500
per cent.; in Louisiana the public debt mounted from $14,000,000 to
$48,000,000 between 1868 and 1871. Only ignorance and dishonesty could
explain such extravagance and waste. Submission, however, was not
merely advisable; it presented the only prospect of peace. Open
resentment was largely suppressed, but it was inevitable that the
whites should become hostile to the blacks, and that they should
dislike the Republican party for its ruthless imposition of a system
which governed them without their consent and which placed them at the
mercy of the incompetent and unscrupulous. A system which made a negro
the successor of Jefferson Davis in the United States Senate could
scarcely fail to throw the majority of southern whites into the ranks
of the enemies of the Republican organization.[2]

One step remained to ensure the continuance of negro suffrage--the
adoption of a constitutional provision. In 1869 Congress referred to the
states the Fifteenth Amendment, which was declared in force a year
later. By its terms the United States and the states are forbidden to
abridge the right of citizens to vote on account of race, color or
previous condition of servitude.

While radical reconstruction was being forced to its bitter conclusion,
the opponents of the President were maturing plans for his impeachment
and exclusion from office. By the terms of the Constitution, the chief
executive may be impeached for "Treason, Bribery, or other high Crimes
and Misdemeanors." Early in the struggle between President Johnson and
Congress a few members of the House of Representatives urged an attempt
to impeach him. Such extremists as James M. Ashley of Ohio, and Benjamin
F. Butler of Massachusetts, believed that he had even been implicated in
the plot to assassinate Lincoln. A thorough-going search through his
private as well as his public career failed to produce any evidence that
could be interpreted as sufficient to meet constitutional demands, and a
motion to impeach was voted down in the House by a large majority. So
indiscreet a man as the President, however, was likely at some time to
furnish a reason for further effort. The occasion came in the removal of
the Secretary of War, Edwin M. Stanton.

Stanton, although of a domineering and brusque personality, had ably
administered the War Department under Lincoln and Johnson. During the
controversy between the President and Congress, Stanton had remained in
the Cabinet but was closely in touch with his chief's opponents and
had even drafted one of the reconstruction acts. Johnson had tolerated
the questionable conduct of his Secretary, despite the advice of many
of his supporters, until August 5, 1867, when he requested Stanton's
resignation. The latter took refuge behind the Tenure of Office Act,
denying the right of the President to remove him, but yielding his
office at Johnson's insistence. This episode had occurred during a
recess of Congress and, in accord with the law, the removal of Stanton
was reported when it convened in December. The Senate at once refused
to concur and Stanton returned to his office. The President now found
himself forced, by what he regarded as an unconstitutional law, into
the unbearable position of including one of his enemies within his
official family, and once more he ordered the Secretary to retire. But
meanwhile the House of Representatives had been active and had on
February 24, 1868, impeached the President for "high crimes and
misdemeanors."

The trial was conducted before the Senate, as the Constitution
provides, the Chief Justice of the Supreme Court acting as the
presiding officer. The House chose a board of seven managers to conduct
the prosecution, of whom Thaddeus Stevens and Benjamin F. Butler were
best known. The President was defended by able counsel, including
former Attorney-General Stanbery, Benjamin R. Curtis, who had earlier
sat upon the Supreme Court, and William M. Evarts, an eminent lawyer
and leader of the bar in New York. The charges, although eleven in
number, centered about four accusations: (1) that the dismissal of
Secretary Stanton was contrary to the Tenure of Office Act; (2) that
the President had declared that part of a certain act of Congress was
unconstitutional; (3) that he had attempted to bring Congress into
disgrace in his speeches; and (4) that in general he had opposed the
execution of several acts of Congress. The President's counsel asked
for forty days in which to prepare their case. They were given ten,
although members of the House had been preparing for more than a year
to resort to impeachment. The trial lasted from early March to late
May.

As the trial wore on, it became increasingly evident that the House had
but little substance on which to base an impeachment, and that the force
back of it was intense hatred of the President. It was made clear to
senators who were inclined to waver towards the side of acquittal that
their political careers were at an end if they failed to vote guilty.
The general conference of the Methodist Episcopal Church even appointed
an hour of prayer that the Senate might be moved to convict. The lawyers
for the defense so far outgeneraled the prosecutors that one who reads
the records at the present day finds difficulty in thinking of them as
more than the account of a pitiful farce. At length on May 16 the Senate
was prepared to make its decision. The last charge was voted upon first.
It was a very general accusation, drawn up by Stevens, and seemed most
likely to secure the necessary two-thirds for conviction. Fifty-four
members would vote. Twelve of them were Democrats and were known to be
for acquittal. The majority of the Republicans were for conviction. A
small group had given no indication of their position, and their votes
would be the decisive ones. As the roll was called each senator replied
"Guilty" or "Not guilty," while floor and galleries counted off the vote
as the knitting women clicked off the day's toll of heads during the
days when the guillotine made a reign of terror in France. The result
was thirty-five votes for conviction and nineteen for acquittal. As
thirty-six were necessary, Johnson had escaped. A recess of ten days was
taken during which the prosecution sought some shred of evidence which
might prove that some one of the nineteen had accepted a bribe for his
vote, but to no avail. When the Senate convened again there was no
change in the vote on the second and third articles, and the attempt to
convict was abandoned.

For the first time in many months Johnson enjoyed a respite from the
attacks of his foes. Stanton relinquished his office, and the integrity
of the executive power was preserved. The race of the dictator of the
House had been run, for Stevens lived less than three months after the
trial.

The continuous controversies of the Johnson administration almost
completely pressed into the background two diplomatic accomplishments of
no little importance. The more dramatic of these related to the French
invasion of Mexico. During 1861, naval vessels of England, France and
Spain had entered Mexican ports in order to compel the payment of debts
said to be due those countries, but England and Spain had soon withdrawn
and had left France to proceed alone. French troops thereupon had
invaded the country, captured Mexico City and established an empire with
Archduke Maximilian of Austria as its head, despite the protests and
opposition of the Mexicans under their leader Juarez. The United States
had expressed dissent and alarm, meanwhile, but because of the war was
in no position to take action.

As soon as civil strife was finished, however, Johnson and Seward took
vigorous steps. An army under General Sheridan was sent to the border,
and diplomatic pressure was exerted to convince France of the
desirability of withdrawal. The occupation of Mexico was, apparently,
not popular in France, and in the face of American opposition the French
government sought a means of dropping the project. Accordingly the
invading forces were withdrawn early in 1867, leaving the hapless
Maximilian to the Mexicans, by whom he was subsequently seized and
executed.

While the Mexican difficulty was being brought to a successful outcome,
the government of Russia offered to sell to the United States her
immense Alaskan possessions west and northwest of Canada. Secretary
Seward was enthusiastically disposed to accept the offer and a treaty
was accordingly drawn up on March 30, 1867, providing for the
acquisition of the territory for $7,200,000. The Senate, however, was
far less inclined to seize the opportunity. Little was known about
Alaska, and the cost seemed almost prohibitive in view of the financial
strains caused by the war. Nevertheless the inclination to acquire
territory was strong and there was a widespread desire to accede to the
wishes of Russia who was understood to have been well-disposed toward
the United States during the war. Under the operation of these forces
the Senate changed its attitude and ratified the treaty on April 9,
1867. By this act the United States came into possession of an area
measuring nearly 600,000 square miles, and stores of fish, furs, timber,
coal and precious metals whose size is even yet little understood.

It was not long before it became apparent that radical reconstruction
had been founded too little upon the hard facts of social and political
conditions in the South, and too much upon benevolent but mistaken
theories, and upon prejudices, partisanship and emotion. It was
inevitable that there should be an aftermath.

At the close of reconstruction in 1871, the southern negro was a citizen
of civil and political importance. As a voter, he was on an equality
with the whites; he belonged to the Republican party and his party was a
powerful factor in the politics of the South; his position was secured,
or at least seemed to be secured, by amendments to the federal
Constitution. Legally and constitutionally his position appeared to be
impregnable. In the minds of the southern white, however, the amendments
vied with military reconstruction in their injustice and unwisdom. To
his mind they constituted an attempt to abolish the belief of the white
man in the essential inferiority of the black, to make the pyramid of
government stand on its apex, and to place the very issues of existence
within the power of the congenitally unfit. To the discontent aroused by
war were added political and racial antagonism, which blazed at times
into fury. The southern whites began to invent methods for overcoming
the power of the freedmen in politics and for insuring themselves
against possible danger of violence at the hands of the blacks.

The most famous device was the Ku Klux Klan or the Invisible Empire, a
somewhat loosely organized secret society which originated in Tennessee
during the turmoil immediately after the close of the war. In theory and
practice its operations were simple and effective. Its chief officials
were the Grand Wizard, the Grand Dragon, the Grand Titan. Local branches
were Dens, each headed by a Grand Cyclops. The Den worked usually at
night, when the members assembled clad in long white robes and white
masks or hoods, discussed cases which needed attention, and then rode
forth on horses whose bodies were covered and whose feet were muffled.
The exploits of the Klan expanded, in the exaggerated stories common
among the negroes, into the most amazing achievements. The members were
thought to be able to take themselves to pieces, drink entire pailfuls
of water, and devour "fried nigger meat." Usually the person about to be
"visited" received a notice that the dreaded Klan was upon him. He was
warned to cease his political activities or perhaps to leave the
neighborhood. If the threat proved ineffective, whipping or some worse
punishment was likely to follow.

In 1872 Congress unintentionally aided in the process of overcoming
negro domination by the passage of the Amnesty Act, which restored to
all but a few hundreds of the former Confederates the political
privileges which had been taken from them by the Fourteenth Amendment.
Under the latter the great majority of former southern leaders had been
deprived of the right to hold office. On the restoration of this right
such men as Alexander H. Stephens, former Vice-President of the
Confederate States, and Wade Hampton, one of the most influential South
Carolinians, could again take an active part in politics. With their
return, the cause of white supremacy received a powerful impetus.

In taking this step, however, Congress did not intend to allow the legal
and constitutional rights of the blacks to be waived without a contest.
Reports reached the North concerning the activities of the southern
whites--reports which in no way minimized the amount of intimidation and
violence involved--and in response to this information Congress passed
the enforcement laws of 1870-1871, generally known as the "Force
Acts."[3] These laws laid heavy penalties upon individuals who should
prevent citizens from exercising their constitutional political
powers--primarily the right to vote. As offences under these acts were
within the jurisdiction of the federal courts and as the federal
officials manifested an inclination to carry out the law, the number of
indictments was considerable. Convictions, however, were infrequent. The
famous Ku Klux Act of 1871 amplified the law of 1870 and was aimed at
combinations or conspiracies of persons who resorted to intimidation. It
authorized the President to suspend the privilege of the writ of _habeas
corpus_ and made it his duty to employ armed force to suppress
opposition.

Additional sting was given the enforcement laws by provision for the
superintendence of federal elections, under specified conditions, by
federal officials called "supervisors of election." The supervisors were
given large powers over the registration of voters and the casting and
counting of ballots, so as to ensure a fair vote and an honest count.
Since here, again, federal troops stood behind the law, it was manifest
that the central government would show some degree of determination in
its handling of the southern situation. Nevertheless, the result was
merely to delay the gradual elimination of the blacks from political
activity, not to prevent it. In practice the Republican state
governments in the South were continued in the seats of authority only
through the presence of the federal soldiery. In one way or another the
whites gained the upper hand, so that by 1877 only South Carolina and
Louisiana had failed to achieve self-government unhampered by federal
force.

In the meantime the enforcement acts were being slowly weakened by the
Supreme Court in several decisions bearing upon the Fourteenth
Amendment. The significant portion of Section I of the Amendment is as
follows:

No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

In several cases involving the enforcement acts, the Court found
portions of the laws in conflict with the Constitution and finally, in
1883, the decision in United States _v._ Harris completed their
destruction. Here the court met a complaint that a group of white men
had taken some negroes away from the officers of the law and ill-treated
them. Such conduct seemed to be contrary to that part of the Ku Klux Act
which forbade combinations designed to deprive citizens of their legal
rights. The Court, however, called attention to the important words, "No
_State_ shall make or enforce," and was of opinion that the
constitutional power of Congress extends only to cases where _States_
have acted in such a manner as to deprive citizens of their rights. If
_individuals_, on the contrary, conspire to take away these rights,
relief must be sought at the hands of the state government. As the great
purpose of the Ku Klux Act had been to combat precisely such individual
combinations, it appeared that the Court had, at a blow, demolished the
law. Not long afterwards the Court declared unconstitutional the Civil
Rights Act of 1875, which had been designed to insure equal rights to
negroes in hotels, conveyances and theatres. Here again the Court was of
opinion that the Fourteenth Amendment grants no power to the United
States but forbids certain activities by the states.[4]

Stuffing the ballot box was common in South Carolina and other states.
In one election in this state the number of votes cast was almost double
the number the names on the polling list. In some places the imposition
of a poll tax peacefully eliminated the impecunious freedman. In
Mississippi the state legislature laid out the "shoestring" election
district, 300 miles long and about 20 miles wide, which included many of
the sections where the negroes were most numerous, in order that their
votes might have as little effect as possible. By hook or by crook,
then, in simple and devious ways, the dangers of negro domination were
averted. Nevertheless the provisions of the law for federal supervision
of elections remained, becoming a bone of contention during a later
administration.

About 1890 there began a new era in the elimination of the negro from
politics in the South. The people of that section disliked the methods
which they felt the necessity of using, and searched about for a less
crude device. Furthermore the rise of a new political movement in some
parts of the South in the late eighties and early nineties was making
divisions among the Democrats and was encouraging attempts by the two
factions to control the negro vote. Suddenly, a relatively small number
of negro voters became a powerful and purchasable make-weight. Both
sides, perhaps, were a bit disturbed at this development. At any rate,
additional impetus was given to the movement for the suppression of the
negro. Eventually plans were originated, some of which were clearly
constitutional and all of which carried a certain appearance of
legality.

The first steps were taken by Mississippi in 1890. The new state
constitution of that year required as prerequisite to the voting
privilege, the payment of all taxes which were legally demanded of the
citizen during the two preceding years--a provision to which no
constitutional exception could be taken, and which effectively debarred
large numbers of colored voters. Further, it provided that after January
1, 1892, every voter must be able to read any section of the state
constitution or be able to give an interpretation of it _when read to
him_. As the election officials who would judge the ability of the
applicant properly to interpret the constitution would certainly be
whites, it was clear that the ignorant black would have scant chance of
passing the educational test. Several other states followed in the wake
of Mississippi, until in 1898 Louisiana discovered a new barrier through
which only whites might make their way to the voting lists. This was the
famous "grandfather clause." In brief, it allowed citizens to vote who
had that right before January 1, 1867, together with the descendants of
such citizens, regardless of their educational and property
qualifications. As no negroes had voted in the state before that date,
they were effectively debarred. Under the influence of such pressure,
the negro vote promptly dwindled away to negligible proportions. In
Louisiana, to cite one case, there were 127,263 registered colored
voters in 1896, and 5,354 in 1900. Between these two years the new state
constitution had been passed. In 1915 the Supreme Court finally declared
a grandfather clause unconstitutional on the ground that its only
possible intention was to evade that provision of the Fifteenth
Amendment which forbids the states to abridge, on account of color, the
rights of citizens of the United States to vote.