Reconstruction

by Brooks D. Simpson

  In the next place, this provision of the bill seems to be unnecessary, as adequate judicial remedies could be adopted to secure the desired end without invading the immunities of legislators, always important to be preserved in the interest of public liberty; without assailing the independence of the judiciary, always essential to the preservation of individual rights; and without impairing the efficiency of ministerial officers, ­always necessary for the maintenance of public peace and ­order. The remedy proposed by this section seems to be in this respect not only anomalous, but unconstitutional; for the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction, subject only to the restriction that in cases of conflict with the Constitution and constitutional laws of the United States the latter should be held to be the supreme law of the land.

  The third section gives the district courts of the United States exclusive “cognizance of all crimes and offenses committed against the provisions of this act,” and concurrent jurisdiction with the circuit courts of the United States of all civil and criminal cases “affecting persons who are denied or can not enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section.” The construction which I have given to the second section is strengthened by this third section, for it makes clear what kind of denial or deprivation of the rights secured by the first section was in contemplation. It is a denial or deprivation of such rights “in the courts or judicial tribunals of the State.” It stands, therefore, clear of doubt that the offense and the penalties provided in the second section are intended for the State judge who, in the clear exercise of his functions as a judge, not acting ministerially but judicially, shall decide contrary to this Federal law. In other words, when a State judge, acting upon a question involving a conflict between a State law and a Federal law, and bound, according to his own judgment and responsibility, to give an impartial decision between the two, comes to the conclusion that the State law is valid and the Federal law is invalid, he must not follow the dictates of his own judgment, at the peril of fine and imprisonment. The legislative department of the Government of the United States thus takes from the judicial department of the States the sacred and exclusive duty of judicial decision, and converts the State judge into a mere ministerial officer, bound to decide according to the will of Congress.

  It is clear that in States which deny to persons whose rights are secured by the first section of the bill any one of those rights all criminal and civil cases affecting them will, by the provisions of the third section, come under the exclusive cognizance of the Federal tribunals. It follows that if, in any State which denies to a colored person any one of all those rights, that person should commit a crime against the laws of a State—murder, arson, rape, or any other crime—all protection and punishment through the courts of the State are taken away, and he can only be tried and punished in the Federal courts. How is the criminal to be tried? If the offense is provided for and punished by Federal law, that law, and not the State law, is to govern. It is only when the offense does not happen to be within the purview of Federal law that the Federal courts are to try and punish him under any other law. Then resort is to be had to “the common law, as modified and changed” by State legislation, “so far as the same is not inconsistent with the Constitution and laws of the United States.” So that over this vast domain of criminal jurisprudence provided by each State for the protection of its own citizens and for the punishment of all persons who violate its criminal laws, Federal law, whenever it can be made to apply, displaces State law. The question here naturally arises, from what source Congress derives the power to transfer to Federal tribunals certain classes of cases embraced in this section. The Constitution expressly declares that the judicial power of the United States “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.” Here the judicial power of the United States is expressly set forth and defined; and the act of September 24, 1789, establishing the judicial courts of the United States, in conferring upon the Federal courts jurisdiction over cases originating in State tribunals, is careful to confine them to the classes enumerated in the above-recited clause of the Constitution. This section of the bill undoubtedly comprehends cases and authorizes the exercise of powers that are not, by the Constitution, within the jurisdiction of the courts of the United States. To transfer them to those courts would be an exercise of authority well calculated to excite distrust and alarm on the part of all the States, for the bill applies alike to all of them—as well to those that have as to those that have not been engaged in rebellion.

  It may be assumed that this authority is incident to the power granted to Congress by the Constitution, as recently amended, to enforce, by appropriate legislation, the article declaring that—

  Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

  It can not, however, be justly claimed that, with a view to the enforcement of this article of the Constitution, there is at present any necessity for the exercise of all the powers which this bill confers. Slavery has been abolished, and at present nowhere exists within the jurisdiction of the United States; nor has there been, nor is it likely there will be, any attempt to revive it by the people or the States. If, however, any such attempt shall be made, it will then become the duty of the General Government to exercise any and all incidental powers necessary and proper to maintain inviolate this great constitutional law of freedom.

  The fourth section of the bill provides that officers and agents of the Freedmen’s Bureau shall be empowered to make arrests, and also that other officers may be specially commissioned for that purpose by the President of the United States. It also authorizes circuit courts of the United States and the superior courts of the Territories to appoint, without limitation, commissioners, who are to be charged with the performance of quasi judicial duties. The fifth section empowers the commissioners so to be selected by the courts to appoint in writing, under their hands, one or more suitable persons from time to time to execute warrants and other processes described by the bill. These numerous official agents are made to constitute a sort of police, in addition to the military, and are authorized to summon a posse comitatus, and even to call to their aid such portion of the land and naval forces of the United States, or of the militia, “as may be necessary to the performance of the duty with which they are charged.” This extraordinary power is to be conferred upon agents irresponsible to the Government and to the people, to whose number the discretion of the commissioners is the only limit, and in whose hands such authority might be made a terrible engine of wrong, oppression, and fraud. The general statutes regulating the land and naval forces of the United States, the militia, and the execution of the laws are believed to be adequate for every emergency which can occur in time of peace. If it should prove otherwise, Congress can at any time amend those laws in such manner as, while subserving the public welfare, not to jeopard the rights, interests, and liberties of the people.

  The seventh section provides that a fee of $10 shall be paid to each commissioner in every case brought before him, and a fee of $5 to his deputy or deputies “for each person he or they may arrest and take before any such commissioner,” “with
such other fees as may be deemed reasonable by such commissioner,” “in general for performing such other duties as may be required in the premises.” All these fees are to be “paid out of the Treasury of the United States,” whether there is a conviction or not; but in case of conviction they are to be recoverable from the defendant. It seems to me that under the influence of such temptations bad men might convert any law, however beneficent, into an instrument of persecution and fraud.

  By the eighth section of the bill the United States courts, which sit only in one place for white citizens, must migrate with the marshal and district attorney (and necessarily with the clerk, although he is not mentioned) to any part of the district upon the order of the President, and there hold a court, “for the purpose of the more speedy arrest and trial of persons charged with a violation of this act;” and there the judge and officers of the court must remain, upon the order of the President, “for the time therein designated.”

  The ninth section authorizes the President, or such person as he may empower for that purpose, “to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act.” This language seems to imply a permanent military force, that is to be always at hand, and whose only business is to be the enforcement of this measure over the vast region where it is intended to operate.

  I do not propose to consider the policy of this bill. To me the details of the bill seem fraught with evil. The white race and the black race of the South have hitherto lived together under the relation of master and slave—capital owning labor. Now, suddenly, that relation is changed, and as to ownership capital and labor are divorced. They stand now each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and if left to the laws that regulate capital and labor it is confidently believed that they will satisfactorily work out the problem. Capital, it is true, has more intelligence, but labor is never so ignorant as not to understand its own interests, not to know its own value, and not to see that capital must pay that value.

  This bill frustrates this adjustment. It intervenes between capital and labor and attempts to settle questions of political economy through the agency of numerous officials whose interest it will be to foment discord between the two races, for as the breach widens their employment will continue, and when it is closed their occupation will terminate.

  In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race. They interfere with the municipal legislation of the States, with the relations existing exclusively between a State and its citizens, or between inhabitants of the same State—an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited powers and break down the barriers which preserve the rights of the States. It is another step, or rather stride, toward centralization and the concentration of all legislative powers in the National Government. The tendency of the bill must be to resuscitate the spirit of rebellion and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace.

  My lamented predecessor, in his proclamation of the 1st of January, 1863, ordered and declared that all persons held as slaves within certain States and parts of States therein designated were and thenceforward should be free; and further, that the executive government of the United States, including the military and naval authorities thereof, would recognize and maintain the freedom of such persons. This guaranty has been rendered especially obligatory and sacred by the amendment of the Constitution abolishing slavery throughout the United States. I therefore fully recognize the obligation to protect and defend that class of our people whenever and wherever it shall become necessary, and to the full extent compatible with the Constitution of the United States.

  Entertaining these sentiments, it only remains for me to say that I will cheerfully cooperate with Congress in any measure that may be necessary for the protection of the civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process, under equal and impartial laws, in conformity with the provisions of the Federal Constitution.

  I now return the bill to the Senate, and regret that in considering the bills and joint resolutions—forty-two in number—which have been thus far submitted for my approval I am compelled to withhold my assent from a second measure that has received the sanction of both Houses of Congress.

  ANDREW JOHNSON.

  CONGRESSIONAL RECONSTRUCTION

  1866–1869

  In the spring of 1866 congressional Republicans took the lead in framing federal Reconstruction policy. Having overridden President Andrew Johnson’s veto of the Civil Rights Bill, they now hammered out an approach marked by compromise and an increasing concern about presidential obstruction. That many people persist in labelling this period Radical Reconstruction overlooks the extent to which several measures associated with Radical Republicans—a prolonged military occupation of the former Confederacy, the confiscation and redistribution of land to the freed people, and the continuing exclusion of former Confederates from voting and holding office—faded from the realm of the politically possible. On the other hand, guarantees of equality before the law, the enfranchisement of black adult males in the South, and an increased federal role in establishing new state governments with the participation of southern freedmen seemed radical enough to those seeking to maintain a white supremacist America.

  Events in the South demonstrated that federal protection was necessary. In May a white mob, led by local officials, attacked black veterans and their families in Memphis, killing forty-six African Americans. In July, a white mob in New Orleans targeted supporters of a new state constitution, killing thirty-four African Americans and three whites. At the same time, a white supremacist terrorist organization known as the Ku Klux Klan began to take root across the South. Johnson discounted such acts of violence or blamed them on his opponents; Republicans such as Indiana governor Oliver P. Morton warned that such violent acts represented an ominous revival of the spirit of rebellion.

  The Republican effort at taking control of the Reconstruction process through the passage of the Fourteenth Amendment in June 1866, even as it bypassed the possibility of presidential veto, demonstrated that their efforts to refashion the American polity had its limits. Congress excluded women from the drive toward equality before the law, and most Republicans would not endorse women’s suffrage. Moreover, should the former Confederate states follow the example of Tennessee and ratify the amendment, Reconstruction might come to an end. Once the former Confederate states were readmitted to representation in Congress, southern and northern Democrats could work together to diminish federal authority. The southern states could also choose not to enfranchise black men as long as they were willing to accept the reduced congressional and electoral college representation called for in the amendment’s second section.

  Determined to defeat his congressional foes during the midterm elections, Andrew Johnson embarked upon a speaking tour throughout the North in the summer of 1866. Dubbed “the Swing Around the Circle,” the president’s effort to rally support floundered as he engaged in ill-tempered exchanges with increasingly raucous crowds. Accompanying the president was General Ulysses S. Grant, who privately characterized the result as “a national disgrace,” remarking that the effort reminded him of a man making speeches on the way to his own funeral. In the elections that fa
ll, Republicans secured veto-proof majorities in both houses of Congress. When the remaining former Confederate states, encouraged by Johnson, failed to ratify the Fourteenth Amendment, congressional Republicans moved in early 1867 to enact legislation that provided for the framing of new southern state constitutions and governments under military supervision in a process that involved black men as voters, delegates, and officeholders. Sometimes called the Military Reconstruction Acts, this series of legislative enactments overrode Johnson’s earlier attempts to restore state governments on a whites-only basis and promised revolutionary changes in the American polity.