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Chapter XXI

  • Reconstruction in Virginia
  • -- the State legislature advised to adopt the Fourteenth Amendment -- congressional reconstruction as a result of the refusal -- the manner in which the acts of Congress were executed -- no resort to trial by military commission -- the obnoxious Constitution framed by the State Convention -- how its worst feature was nullified -- appointed Secretary of War.

in August, 1866, after my return from Europe, I was assigned to command the Department of the Potomac, which included the State of Virginia, then governed in part by the Freedmen's Bureau and in part by the provisional government which had been organized at Alexandria while the war was still in progress. The State had yet to obtain from Congress a recognition of its government, which recognition was understood to depend upon the ratification by the State legislature of the then pending Fourteenth Amendment to the Constitution of the United States. This subject was very fully discussed between me and the leading members of the legislature. I advised them to accept the proposed amendment as the only means of saving the State from the more ‘radical’ reconstruction under act of Congress, which was then threatened. It was urged that Virginia would not suffer much from the operation of the Fourteenth Amendment, because of the general intelligence of her white population and their [395] superiority in numbers over the negroes—advantages which some of the other Southern States did not enjoy; that if the Virginia legislature would ratify the pending amendment, Congress could not refuse to recognize the existing State government and make it permanent; and that Virginia would thus be restored at once to her full privileges as a State in the Union. I visited Washington, and obtained from leading Republicans in Congress the assurance, so far as it was in their power to give it, that such would be the result. On my return to Richmond, it at first seemed that the amendment would be speedily ratified. But other influences, understood to come from some source in Washington (probably President Johnson), finally prevailed; the amendment was rejected; and Virginia was thus doomed to undergo ‘congressional reconstruction’ in company with her sister States.

The ‘policy’ of President Johnson having resulted in an ‘irrepressible conflict’ between him and Congress, finally culminating in his impeachment, the reconstruction of the States lately in insurrection was undertaken by Congress. First an act dated March 2, 1867, was passed for the military government of the ‘rebel States,’ and then another act, dated March 23, 1867, prescribing the conditions of organization of State governments preparatory to restoration to the Union; the last-named act was supplemented by the act dated July 19, 1867. All of these acts were passed over the President's veto. They provided for the assignment of military commanders in the several districts, with nearly absolute powers to govern those States and direct the steps in the process of reconstruction. It fell to my lot to command the First Military District, into which Virginia was converted by the act of Congress.

The terrible oppression of the Southern people embodied in those acts of Congress has hardly been appreciated [396] by even the most enlightened and conservative people of the North. Only those who actually suffered the baneful effects of the unrestrained working of those laws can ever realize their full enormity. The radical Congress was not content to impose upon the Southern States impartial suffrage to whites and blacks alike. They were not content even to disfranchise the leading rebels, according to the terms of the Fourteenth Amendment to the Constitution. Even those would not be sufficient to put the Southern whites under the domination of their former slaves and of adventurers from the North, and thus to secure the radical supremacy in the reconstructed States. Hence another and an enormous stride was taken, with the purpose of putting those States under what became known as ‘carpet-bag’ governments, so offensive as to be nearly intolerable even to their authors. That stride consisted in imposing the so-called ‘iron-clad oath’ upon all officers, of whatever grade or character, in all the former Confederate States. That oath excluded from office not only all who had in any way taken active part in the rebellion, but even the most constant Union men of the South who had remained at home during the war; for not one of them had escaped ‘giving aid or comfort’ in some way to those engaged in the rebellion. Even so conspicuous a loyalist as Judge Rives, afterward United States district judge, declared, after mature deliberation, that he could not take that oath, although his constant fidelity to the Union was known to all in Virginia.

I asked this noted Union man to accept the office of chief justice of the State, but he could not take the prescribed oath. He had permitted his boy, about to join the Confederate army, to take one of his horses rather than see him go afoot. Perhaps the judge was too conscientious. But it was the evil effect of the law to exclude the highly honorable and let the rascals in. Thus [397] the Union could not have the benefit of Judge Rives's eminent services in the vital work of reconstruction, and some ‘carpet-bagger’ had to take his place. And thus, although the acts of Congress permitted a majority of the whites to vote, their choice of officers was restricted to negroes and ‘carpet-baggers’! To these latter, therefore, was committed the entire work of organizing and administering the Southern State governments, which required the aid of the United States troops to support them, and which fell by their own weight the moment that support was withdrawn.

The manner in which I executed those ‘reconstruction’ acts of Congress in Virginia, so as to save that State from the great evils suffered by sister States, is perhaps an instructive part of the history of that time. The following extracts from my orders and correspondence clearly show the constitutional principles upon which my administration was based. They also give the essential points in the history of Virginia reconstruction up to the time when the Convention had completed its work of framing a constitution. My ‘General Orders, No. 1,’ dated Richmond, Va., March 13, 1867, was as follows:

I. In compliance with the order of the President, the undersigned hereby assumes command of the First District, State of Virginia, under the act of Congress of March 2, 1867.

II. All officers under the existing provisional government of the State of Virginia will continue to perform the duties of their respective offices according to law, unless otherwise hereafter ordered in individual cases, until their successors shall be duly elected and qualified in accordance with the above-named act of Congress.

III. It is desirable that the military power conferred by the before-mentioned act be exercised only so far as may be necessary to accomplish the objects for which that power was conferred, and the undersigned appeals to the people of Virginia, and especially to magistrates and other civil officers, to render [398] the necessity for the exercise of this power as slight as possible, by strict obedience to the laws, and by impartial administration of justice to all classes . . .

On April 20 was issued ‘General Orders, No. 16’:

I. Temporary appointments to fill vacancies which may occur in county or city offices will, in general, be made upon the concurrent recommendations of the County Court or City Council and of the President of the Board of Registration1 for the county or city.

II. The several County Courts and City Councils are requested to confer with the Presidents of the Boards of Registration concerning such appointments, and to agree upon a suitable person to fill any vacancy that may occur.

III. The President of the Board of Registration will forward to the assistant adjutant-general the recommendation of the court or council, with his own indorsement thereon.

IV. When a County Court is not in session, a recommendation signed by five justices, including the presiding justice, will be received in lieu of the recommendation of the court.

V. County and corporation officers appointed by the commanding general will be required to give the bonds required by law, and will be subject to indictment for malfeasance, misfeasance, or neglect of official duty, the same as if they had been elected by the people.

On May 28 was issued ‘General Orders, No. 31,’ in part as follows:

. . . IV. The military commissioners [officers of the army] will make a prompt report to these headquarters of each case of which they may take jurisdiction, and the disposition made of such case. Where parties are held for trial, either in confinement or under bail, such full statement will be made of the facts in each case as will enable the commanding general to decide whether the case shall be tried by a military commission or be brought before a civil court. [399]

V. Trial by the civil court will be preferred in all cases where there is satisfactory reason to believe that justice will be done. But until the orders of the commanding general are made known in any case, the paramount jurisdiction assumed by the military commissioner will be exclusive.

VI. All persons, civil officers and others, are required to obey and execute the lawful orders of the military commissioners to the same extent as they are required by law to obey and execute writs issued by civil magistrates. Any person who shall disobey or resist the lawful orders or authority of a military commissioner shall be tried by a military commission, and upon conviction shall be punished by fine and imprisonment according to the nature and degree of the offense. . . .

VIII. This order will not be construed to excuse civil officers, in any degree, from the faithful discharge of their duties. It is intended to aid the civil authorities, and not to supersede them, except in cases of necessity.

No case arose in Virginia in which it was found necessary, in my opinion, to supersede the civil authorities in the administration of justice. Not a single citizen of that State was tried by military commission. Yet some cases arose which well illustrate the fascinations of absolute power to those who desire the benefit of its exercise in their own interests. Some of the most prominent citizens of Virginia, men who had earnestly opposed the general policy of military government then in force, came to me to settle their petty differences summarily. They seemed much disappointed when I declined to adjudicate such cases, and informed them that they must be content with the slow process of trial before their own civil magistrates. Other orders were in part as follows:

Richmond, Va., July 26, 1867.
. . . III. The governor and other executive officers, the courts of law, and councils of cities are invited to recommend suitable persons for appointment to such offices as, under the existing laws of Virginia, are usually filled by their appointment or upon their nomination. . . .


Richmond, Va., August 8, 1867.
. . . VI. Military commissioners are reminded that they are to be ‘governed in the discharge of their duties by the laws of Virginia, so far as the same are not in conflict with the laws of the United States, or orders issued from these headquarters,’ and that they are not to supersede the civil authorities, except in cases of necessity. In such cases the action, or failure to act, of the civil officers should be fully reported, in order that the commanding general may hold them to a proper accountability for any neglect of duty . . .

Upon the adjournment of the State Convention, I sent the following letter to General Grant:

Richmond, Va., April 18, 1868.
dear General: In spite of every effort that could be made to prevent it, the Virginia Convention has adhered to its proscriptive measures, or rather to the most objectionable of them.

After every other means had failed, I even went so far as to visit the Convention and urge the repeal of the test oath. But what I said seemed not to have the slightest influence. I inclose a newspaper report, which is a pretty accurate one, of what I said, and which will show that I have at least done my duty in that regard, if not more.

The same baneful influence that secured the election of a majority of ignorant blacks, and equally ignorant or unprincipled whites, to the Convention, has proved sufficient to hold them firmly to their original purpose. They could only hope to obtain office by disqualifying everybody in the State who is capable of discharging official duties, and all else to them was of comparatively slight importance. Even the question whether their Constitution will be ratified or rejected, they treat with indifference. Congress, they say, will make it all right anyway. . . .

Of course I may be mistaken, but my opinion is that the Constitution must be adopted. This would not be a serious matter if it (the Constitution) were a good one, and good officers could be elected under it. But it seems hardly possible that the Union party can organize upon a satisfactory basis for the election. The negroes and their associates will doubtless insist [401] upon unqualified indorsement of the Constitution by their nominees. This the respectable whites will not give. Hence the late Convention will be reproduced in the legislature, a large majority being either worthless radicals, white and black, or bitter opponents of reconstruction upon the congressional plan. The danger is that we will have on our hands, not only one big elephant in the Constitution, but a host of little ones in the shape of officers-elect who are not fit to be installed—a prospect not very encouraging, at least.

My impression is that the wisest course would be to let the thing fall and die where it is—not submit it to the people at all. We can then go on putting Union men in office and reorganizing the provisional government upon a loyal basis, until the friends of reconstruction get control of the State. Then a convention can be called which will frame a Constitution fit to be ratified by the people of the State and approved by Congress and the country at large.

If Congress would give a little more latitude in the selection of officers, by modifying the test oath, there would be no difficulty in filling all the offices in the State with men who would aid restoration. Without some such change, the work of reorganization cannot be carried very far. The view of the question which I have given above is, of course, the local one; but it seems to me the national one leads to the same conclusion. I can't see how the indorsement of such a Constitution as this one, by the Republican party, can be otherwise than damaging to them in the North. Would it not be wise for Congress to say at once, We reject, once and for all, proscriptive constitutions?

I have written this letter merely to suggest points that occur to me as worthy of very careful consideration. I suppose Congress alone can determine what is to be done.

As explained in my official letter to-day, I feel bound to await the action of Congress before ordering an election. The nominating conventions of the two parties meet in Richmond on the 6th and 7th of May. Perhaps it may be best for Congress to await their action before determining the question. . . .

The newspaper clipping inclosed in the above letter to General Grant was a report of the proceedings of the Convention which appeared in the Richmond Dispatch [402] of April 18, 1868. Several other letters to General Grant, near the same time, explained the situation in detail.

As was to be expected, and in spite of any influence which the military commander could properly exert, that proposed Constitution, like those framed in the other States, perpetuated the worst features of the acts of Congress. It disqualified all the respectable whites from any active part in the government, leaving the negroes and ‘carpet-baggers’ full sway. So sweeping was this disqualification that in many parts of the State not a native Virginian, white or black, could be found who could read or write, and who would be eligible for election or appointment to any office. In my great anxiety to save the State from so great an evil, I went to the hall of the Convention and explained the impossibility of organizing a government under such a Constitution, and besought the Convention to strike out the disqualifying clause. I was listened to with cold respect, my advice was disregarded, and promptly after my departure the Constitution was finally adopted, and the Convention adjourned sine die.

But the State was, nevertheless, saved from the impending disaster. The act of Congress required that the Constitution be submitted to the people for ratification or rejection; but Congress had failed to appropriate money to pay the expenses of an election. If an election was to be held, the money must be taken from the treasury of the State, by the order of the district commander, or else Congress must make a special appropriation for that purpose. I declined to sanction the use of the people's money for any such purpose, refused to order an election for ratification or rejection of the obnoxious Constitution, and referred the matter to Congress, with a recommendation that the people be authorized to vote separately on the disqualifying clause—a privilege which the Convention had denied. [403]

The radicals in Congress were so glad, apparently, of this mode of escape from a result so obnoxious to the better sense of the Union people at that time, that not a voice was raised in favor of the ‘carpet-bag’ Constitution or in disapprobation of my action in regard to it. The instrument was permitted to rest quietly in the pigeonhole of the district commander's desk until the next year. Then an act was passed providing for submitting that Constitution to the people of Virginia, with the privilege of voting separately on the disfranchising clause, which clause they, of course, rejected. Thus Virginia was saved from the vile government and spoliation which cursed the other Southern States, and which the same radical Congress and its successors sustained until the decent public sentiment of the North would endure them no longer.

It is, perhaps, not too much to say that if the other district commanders had in like manner refused to make themselves parties to the spoliation of the people placed under their charge, Congress would have shrunk from the direct act of imposing upon them such obnoxious governments, and the country might have been saved the disgrace of the eight years of carpet-bag rule in the South. At least it is certain that a large proportion of the more moderate among the Republican majority in Congress at that time indulged the hope that respectable governments might be organized under the acts of Congress. But they made this difficult, if not impossible, when they gave their assent to the amendment of those acts, prepared by the extremist radicals, depriving the Southern whites of any active part in the organization of their governments. Impartial justice, as expressed in ‘impartial suffrage,’ might have led to tolerable results even in those States where the blacks were in the majority. But under a law which gave universal suffrage to the blacks and disfranchised the influential [404] whites, any tolerable result was impossible unless under the administration of a man who had the independence and courage to disarm such a law of its poisonous sting. However this may be, it is certain that Virginia owes her escape from the sad fate of her sister States to the action of her district commander, who has abundant reason for the belief that the good people of that State fully appreciated the fact.

With this service to the people of Virginia, my duty in that State practically terminated. The impeachment trial of President Johnson had reached its crisis. It had become evident to those who were wise enough to discern the ‘signs of the times’ that the Senate would probably not sustain the articles of impeachment by the necessary two-thirds majority. This would leave unsettled the quarrel between the President and Congress over the War Department, and that on the eve of an exciting Presidential election, in which several of the newly reconstructed States were expected to take part. In not one of these States was the new government able to stand alone or to preserve the peace within its borders. A firm and impartial administration of the War Department in the sole interest of peace and order during the coming contest was the one indispensable want of the country. Without that, a revival of civil strife seemed inevitable. Under these circumstances, I was urged to accept the office of Secretary of War, with the assurance that in this way the contest which endangered the peace of the country could be adjusted. I gave my consent, the nomination was promptly sent to the Senate, and that body, in spite of its very large majority in opposition to the President, confirmed the appointment with almost entire unanimity. The impeachment was dismissed, and that dangerous farce, which had come within one or two votes of inflicting lasting disgrace upon the country, happily came to an end. [405]

Upon the inauguration of the newly elected President in March, 1869, I laid down the war portfolio without having incurred censure from either party for any of my official acts, and with the approbation of all for impartial discharge of duty. But, apparently lest such a thing might possibly happen again, Congress made haste to pass a law prohibiting any army officer from thereafter holding any civil office whatever! In 1895 that law was so modified as not to apply to officers on the retired list! It is a singular coincidence that I had just then been retired.

1 The presidents of Boards of Registration were army officers detailed by me for that duty.

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