CHAPTER 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.