Era of the Oath: Northern Loyalty Tests During the Civil War and Reconstruction [Reprint 2016 ed.] 9781512817096

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THE AMERICAN HISTORICAL

ASSOCIATION

S O C I A L D A R W I N I S M IN A M E R I C A N T H O U G H T 1860-1915 BY R I C H A R D

HOFSTADTER

ORIGINS O F INTER-AMERICAN INTEREST 1700-1812 BY H A R R Y

BERNSTEIN

T H E TERRITORIES UNITED STATES

AND

THE

BY E A R L S. P O M E R O Y

FIGHTING POLITICIAN: M A J O R G E N E R A L N. P. BY F R E D H A R V E Y

BANKS

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THE SPANISH S T R U G G L E FOR J U S T I C E IN T H E C O N Q U E S T O F AMERICA BY L E W I S

HANKE

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UTOPIAS

BY A. E. B E S T O R . JR.

J O H N WILLIAM DRAPER A N D T H E RELIGION O F SCIENCE BY D O N A L D

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M E X I C A N SILVER AND THE ENLIGHTENMENT BY C L E M E N T G.

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T H E A G R I C U L T U R A L HISTORY THE GENESEE VALLEY BY N E I L A.

OF

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STEAM POWER ON THE AMERICAN

BY R E Y N O L D M. W I K

FARM

HORACE GREELEY: NINETEENTH-CENTURY

CRUSADER

BY G L Y N D O N G. V A N D E U S E N

ERA O F THE OATH: N O R T H E R N LOYALTY TESTS D U R I N G T H E CIVIL W A R AND RECONSTRUCTION BY H A R O L D Μ. H Y M A N

PREPARED AND PUBLISHED UNDER THE DIRECTION O F THE AMERICAN H I S T O R I C A L A S S O C I A T I O N F R O M T H E I N C O M E O F T H E A L B E R T J. BEVERIDGE MEMORIAL F U N D F O R T H E I R Z E A L A N D B E N E F I C E N C E IN C R E A T I N G T H I S F U N D T H E A S S O C I A T I O N IS I N D E B T E D T O M A N Y C I T I Z E N S O F I N D I A N A W H O D E S I R E D T O H O N O R IN T H I S W A Y T H E M E M O R Y O F A S T A T E S M A N A N D A HISTORIAN

Courtesy

By John Rogers, 1865. of the S'c-c-Vork Historical Society,

Nezu York

City.

m ίγιιιιε ( D ^ m NORTHERN LOYALTY TESTS DURING THE CIVIL W A R AND

RECONSTRUCTION

HAROLD

MELVIN

HYMAN

UNIVERSITY OF PENNSYLVANIA

PRESS

PHILADELPHIA, PENNSYLVANIA

·

1954

Copyright 1954

AMERICAN HISTORICAL ASSOCIATION All Rights Reserved, Including the Right to Reproduce T h i s Book, or Portions Thereof, in Any Form

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Published in Great Britain, India, and Pakistan by Geoffrey Cumberlege: Oxford University Press London, Bombay, and Karachi

To LEE

N O T E BY T H E P U B L I S H E R Harold M. Hyman was born in New York City on July 24, 1924. After graduating from the University of California at Los Angeles, he obtained the degree of Doctor of Philosophy from Columbia University in 1952. Since then he has held the post of Assistant Professor of History at Earlham College, Richmond, Indiana. With Dr. Morton Borden, he wrote "Who Is a Civil Officer?" Delaware History, September 1953. He has also written "New Yorkers and the Civil War Draft," to be printed in New York History, and was an editorial assistant for R. B. Morris, Encyclopedia of American History (New York: Harpers, 1953).

PREFACE

Alan Barth, speaking to the American Association of University Professors in March 1951, said: "My own guess is that historians sufficiently removed from the present to look at it with detachment may very well refer to it as the era of the oath."* We can view the Civil War, nearly a century old, with the detachment Mr. Barth suggests, T h a t war, and the subsequent Reconstruction, richly deserve the title "Era of the Oath." Americans of 1861 certainly could not be mistaken about the need for identifying loyalty. An internal foe stood armed and ready to destroy the Union. T h e North responded with arms—it responded also with oath laws, executive loyalty orders, Congressional investigating committees, and judicial commentaries on these laws and orders. T h e Civil War and Reconstruction offer for investigation a coherent period of organized loyalty-testing in which the North used an apparatus similar to that in use today. In this investigation I was fortunate in receiving the advice and assistance of many people. Professor Brainerd Dyer of the University of California at Los Angeles suggested the first phase of this topic. T h e late Professor James G. Randall lent his sympathetic attention without hesitation. I gratefully acknowledge the interest and assistance which many members of the faculty of Columbia University so freely extended. Professor Allan Nevins encouraged this research in many ways. Professor David Donald generously afforded me access to materials he had laboriously collected. With keen judgment Professor Richard B. Morris kept me from many errors. T o Professor Henry Steele Commager I owe much for his patient guidance and sponsorship of this research from its early stages to its present form. T o Columbia University I am indebted for the facilities and inspiration it provided and for the University Fellowship which made it possible for me to continue my graduate studies. I am honored that the Committee on the Albert J. Beveridge Award of the American Historical Association chose this work for Honorable Mention in 1952. Many librarians and archivists provided invaluable assistance in locating needed materials. Among them Miss Southwick of the National Archives staff deserves special and warm mention. I am grateful to the * A l a n B a r t h , " T h e Loyalty of F r e e M e n , " Bulletin, fessors, X X X V I I ( S p r i n g 1951), 7.

A m e r i c a n Association of U n i v e r s i t y Pro-

editors of Delaware History for permitting the inclusion here of material which has appeared in that journal. T o Morton Borden I offer thanks for his help, but more important, for his friendship. It would take a volume larger than this to acknowledge my debt to my wife. Earlham October

College 1953

HAROLD M .

HYMAN

CONTENTS INTRODUCTION:

LOYALTY ON DEMAND

CHAPTER

XI

PAGE

1. CONGRESS, C A B I N E T , AND CIVIL SERVANTS 2.

THE

3.

L O Y A L T Y D E F I N E D : T H E IRONCLAD TEST O A T H

21

4.

T H E KEY T O F R E E D O M

33

5.

FIRST Y E A R :

L O Y A L T Y TESTS SPREAD

1

A PROBLEM OF PEACE:

13

POSTWAR A D M I N I S T R A T I O N AND T H E TEST

OATH

48

6.

CONGRESS, T H E E X E C U T I V E , AND T H E TEST O A T H

58

7.

T H E P E R S O N A L F A C T O R IN L O Y A L T Y O A T H S

69

8.

VACANT CHAIRS IN CONGRESS

83

9.

B E N C H , BAR, AND O A T H

95

10.

T H E S U P R E M E C O U R T DECIDES

107

11.

FIRST

BREACH

121

12.

FINAL REPEAL

135

CONCLUSION

151

APPENDIX

157

T A B L E O F CASES CITED

160

NOTES

162

BIBLIOGRAPHY

208

INDEX

223

ILLUSTRATIONS 1. T a k i n g t h e O a t h a n d D r a w i n g R a t i o n s

frontispiece

2.

T r a d i n g License f o r L o y a l S o u t h e r n e r s

42

3.

N o Accommodations!

89

4. T a k i n g t h e O a t h of A l l e g i a n c e

139

ABOUT THE NOTES T h e notes will be f o u n d o n pages 162-207. I n t h e text, r e f e r e n t i a l n o t e s a r e i n d i c a t e d by s u p e r i o r n u m b e r s i n r o m a n type; discussion notes by s u p e r i o r n u m b e r s in italics. I n t h e n o t e section, a t t h e u p p e r r i g h t h a n d c o r n e r of e a c h recto p a g e a n d t h e u p p e r l e f t - h a n d c o r n e r of e a c h verso p a g e , will b e f o u n d n u m b e r s i n d i c a t i n g t h e pages of t h e text to w h i c h t h e notes o n these t w o pages r e f e r .

INTRODUCTION LOYALTY ON . . . majority

Patriotism

is the

customary

DEMAND Patriotism.—MARK

TWAIN*

T h e Civil W a r was many wars. It was a war of battles—of Bull R u n , Shiloh, Lookout Mountain, and Cold Harbor. It was a war of s h i p s wood against iron, steam against sail, the fleetness of privateers against the attrition of blockade. In these aspects the Civil W a r was like many wars. And it was a war of glory. W e honor the valor of G r a n t and Lee, Jackson and Sherman, and the nameless men who made possible the victories of their chieftains. T h e V.M.I, cadets retain imperishable youth and the mature wisdom of Lincoln remains ageless. Like other wars the Civil War was one of death, pain, hunger, and misery. Corruption and speculation oozed beneath acts of selfless heroism. Fear was the common denominator for the fighting man as it has been for all fighting men. T h e swift horror of battle, the boredom of military inaction, the irritations of rear-area regulations—these too are common to all wars. Yet it was a different kind of war for the Americans of 1861, for it was a civil war. More than a decade had passed since the brief bloodletting at the Halls of Montezuma. Aged veterans of 1812 and the Revolution added haloed reminiscences to their accounts of past conflicts. Few of Lincoln's contemporaries could estimate the consequences of major military actions. If they had, if such consciousness might have deterred them, there was a Ruffin and a R h e t t to make the South intransigent, and a Garrison and J o h n Brown to spur on the North. In 1861 Americans had to choose. T h e i r leaders had prepared them for this moment for decades. Clay, Calhoun, Webster, Douglas—these and many more had argued the nature of the Union. Compromises had twice adjusted sectional tensions to national expansion. B u t in Kansas and at Harpers Ferry, in the rank holds of slave-running ships and in the measured tread of federal troops surrounding a hapless fugitive Negro, these compromises were undermined until faith no longer adhered to them. •Europe and Elsewhere

(New York: Harper, 1923), p. 303.

Like an ugly scar, division lay across the land. It divided men on a geographical basis, but in other ways as well. T h e r e were many things to which an American could be loyal in the troubled winter of 18601861. T h e nation, the state, the family, the "pernicious abstractions" of ideologies—which took precedence? Lincoln's election and Fort Sumter provided the issue. Now Americans must choose with grim purpose as they had done before in debate and by ballot. For most Americans, the choice was easily made. They lived in the North or in the South. They pledged their lives and honor to the new Confederacy or to the old Union as circumstances dictated. Conscription officials p u t men into blue or grey ranks without reference to ideological convictions. But these convictions persisted, and men upheld the Southern cause in the North and the Union found supporters in the South. For many Americans it was a terrible choice to make. Those who lived in the geographical border regions faced the Bitterness of divided families and learned the horrors of guerrilla warfare. And an intellectual border area existed—an area of confusion, indecision, and an inevitable choice. Lee chose to follow his state out of the Union he had served. Thomas, who loved Virginia as much, remained with the North in its trial of arms. An officer of the Confederate iron clad Virginia helped kill his brother who had chosen the naval service of the Union on board the wooden U.S.S. Congress. Samuel Clemens rejected both sides, and f o u n d a haven far distant from the demands of civil war. 1 From the earliest days of the conflict the North faced internal division. Greeley advocated peaceful secession; Marylanders stoned federal troops rushing to the threatened capital. T h e Knights oT the Golden Circle, draft riots, outright treason threatened the survival of the Union. A troubled North f o u n d that it was not ready to fight a war, that defeats could come to federal forces and that victory was a costly goal. Northerners learned that sympathizers with secession had held high office in the federal government in the years before the war. Some had betrayed their trusts, aided the cause of secession and rebellion, and weakened the military power of the Union. When Lincoln assumed office he f o u n d ". . . his army weakened by the desertion of many of its officers, with traitors in every department of the public service—in every bureau, in every room, and at almost every desk." 2 Lincoln himself complained that ". . . [Southern] sympathizers pervaded all departments of the government and nearly all communities of the people." 3 From disclosures of treason came hate for the traitor. J o h n Sherman and Walt W h i t m a n agreed that rebel soldiers were far less reprehensible than Copperheads. Henry Cabot Lodge, recalling his wartime boyhood, "could never remember hearing . . . bitter words about the

soldiers of the Confederacy . . . b u t [he] well r e c a l l e d ] the bitterness which was expressed in regard to N o r t h e r n m e n with Southern sympathies." * T h e bitterness a b o u t which Lodge spoke f o u n d expression. As George J u l i a n commented, " W e are learning to draw the line between treason a n d loyalty." 5 From N o r t h e r n pulpits, ministers of all faiths a n d denominations p o u r e d hell-fire on the h e a d of the traitor. T h e y furnished from Holy W r i t proof of the sacred n a t u r e of American gove r n m e n t , a n d the duty of obedience to it which every citizen owes. T h e clergy preached that treason was a sin against the word of God, t h a t traitors were violating His precepts, that Southern sympathizers in the government's service must be rooted out w i t h o u t mercy. 6 It was a religious age; such exhortations must have h a d effect. As the editor of the North American Review stated, " T h e relation of the p u l p i t to the great crisis in our national history is well worthy of o u r e m p h a t i c notice." 7 O t h e r groups are equally w o r t h noticing. Lawyers, businessmen, jurists—all lent their voices a n d pens to the d e m a n d for loyalty, unity, a n d conformity. T h e y wrote letters to editors, pamphlets, a n d books on this theme. Judges m a d e patriotic orations of their charges to juries. Politicians kept the subject of loyalty before their constituencies. " H e r e a f t e r , " wrote E. C. Stedman in 1862, " t h e two parties t u r n on the question of s u p p o r t to the g o v e r n m e n t or sympathy with the rebels." 8 Conformity became the ideal. T e a c h e r s w h o failed to meet the req u i r e m e n t of patriotism f o u n d themselves discharged f r o m college faculties. Private clubs cleansed their m e m b e r s h i p lists of the names of those who supported the South by word or deed. W h e n N a t h a n i e l Hawthorne dedicated the 1863 edition of Our Old Home to F r a n k l i n Pierce he learned that m a i n t a i n i n g f r i e n d s h i p with a S o u t h e r n sympathizer was a n expensive luxury in w a r t i m e America. 9 Above all else, N o r t h e r n patriots d e m a n d e d that the g o v e r n m e n t should be staffed by loyal men. Mass meetings in Kentucky, Maine, New York, and Missouri petitioned W a s h i n g t o n to urge the exclusion from public office of all who h a d expressed sympathy with secession. T h e Reverend H e n r y Bellows of New York a u t h o r e d m a n y p a m p h l e t s on the subject of loyalty. In one widely r e p r i n t e d statement Bellows pointed to the resolutions which dozens of church bodies h a d passed, urging that the federal authorities discharge u n p a t r i o t i c civil servants. H a d not such men lost the privileges of citizenship? W a s not the n a t i o n fighting for its life? T h i s was no time for scrupulous concern for the innocent few who might suffer as the n u m e r o u s guilty received their just penalties. Were not N o r t h e r n traitors ultimately responsible for every excess committed by Southern rebels? W i t h o u t the h e l p of traitors n o rebellion could have broken out. 1 0 T h e war must be e x t e n d e d

to the rear areas of the North, argued Sinclair Tousey, a prominent businessman of New York. It seemed to Tousey that internal disaffection was as deadly a threat to the survival of the Union as any the South could erect by arms. Therefore, government authority must unearth disloyal persons ". . . and mark them. State and federal authorities should proscribe them. Courts should punish them as fomenters of disorder. . . . Loyal men should shun all such as moral lepers." 11 Traitors could have no rights under the government against which they plotted treason. T h e Bill of Rights was for true Americans, not for traitors who received salaries from the nation while seeking its overthrow. 12 It was war, a war which outraged the moral sense of the North. Religion, patriotism, and the logic of events joined to pressure authorities for the tools to mark the Unionist from the traitor. "Washington and the Army should be purged of traitors by the most summary means," wrote J o h n Jay, Jr., to Charles Sumner. 13 Such demands, multiplied across the nation and continued throughout the years of conflict, provided another facet of the Civil War. Along with the battles, the heroism, the vileness, which are common to all wars, the Civil War was one in which a nation tried to identify loyalty and punish disloyalty on a huge scale. Legislators, administrators, and jurists made laws, policies, and verdicts to meet the demand for loyalty. How well did they succeed?

CONGRESS, CABINET

AND

CIVIL SERVANTS Treason

is rife

in every

time.—john

dwelling.

. . . I hear

treason

and nothing

else

talked

all

the

fiske*

R

DWARD BATES, LINCOLN'S ATTORNEY-CENERAL, PROPOSED TO T H E CABINET

that ". . . all the employes of the Departments—from the head Secretary to the lowest messenger, be required to take, anew, the oath of allegiance." T h e Cabinet agreed.1 In the second week of the conflict, the loyalty tests of the Civil War had begun. In federal installations across the land civil servants reaffirmed their allegiance by a brief affirmation of intent to "support the Constitution of the United States." This was the only statutory loyalty requirement which existed when Congress convened in July 1861.' T h e new House of Representatives approved the resolution of Republican Congressman John F. Potter of Wisconsin, creating a committee of five members. Potter, its chairman, was to lead the committee in an investigation designed to ". . . ascertain the number of persons . . . now employed in the several Departments of the Government, who are known to entertain sentiments of hostility to the Government . . . and who have refused to take the oath to support the Government."· 1 T h e loyalty investigators soon found themselves burdened with work. They obtained from the House the services of a clerk and permission to operate without recess interruption. 4 Potter, three weeks after he had begun his inquiry, confessed himself ". . . astonished at the number of well-authenticated cases of disloyalty to the Government." 5 He criticized government officials who retained disloyal personnel in their departments, promised "surprising revelations" concerning the extent of disloyalty among civil servants, insisted that the work of his committee was essential to the success of the Union cause." Congress soon furnished Potter's committee another tool with which to work. Early in August 1861, Congress passed, over weak Democratic opposition, a bill prescribing a new oath of office for federal employees. * Fiske to his mother, November 3, 1862, in John S. Clark (ed.), The Life Jahn Fisie (2 vols.; New York: Houghton Mifflin Co., 1917), I, 241.

and Letters

ol

2

ERA OF THE

OATH

Lincoln's signature made it law on August 6, 1861.7 T h e oath provision of this measure was an affirmation of future loyalty to the Constitution and government. In addition the law required the subscriber to affirm his fidelity to the Union, ". . . any ordinance, resolution, or law of any State Convention to the contrary notwithstanding." Congress had had enough of state sovereignty.* For the second time in 1861 the swearing process was repeated in all the civilian offices of the executive departments. Salmon P. Chase ordered the new oath ". . . to be administered to the Clerks and other employes . . . of every Bureau in the Treasury Department." He cautioned supervisory officials to ". . . report any instance of refusal to take and subscribe the oath." 9 Similar injunctions went to all other federal employees, in Washington, in distant territorial offices, and in still more distant diplomatic posts. 10 Well might the department heads enjoin strict obedience to the new oath law. T h e war was not going well for Union arms. T h e administration was the target of widespread public criticism. T h r o u g h o u t the North, disquieted patriots feared that Southern sympathizers still infested the executive departments. T o many observers, "There was a necessity for a searching reform, by which the lurking, not less than the overt treason and treachery, were to be eliminated from the executive machinery." 11 Frederick Douglass catigated the administration for retaining in high offices ". . . where they could be of most service to the rebels, persons that refused to swear to the Constitution, under which they are protected and honored." 12 Critics of the administration condemned the highest ranking army officer, Winfield Scott, for retaining officers of doubtful loyalty in positions of importance. District militiamen refused to swear to their loyalty when called to duty; in one case eighteen out of thirty citizen-soldiers resigned rather than take the oath of allegiance. 13 Gideon Welles, Secretary of the Navy, felt it just ". . . [that] none but reliable and trusty Union men should be . . . retained in positions of responsibility."' 4 George F. Julian, Republican Representative of Indiana, secured the passage of a House Resolution condemning ". . . the retention in office, or the promotion or appointment to office . . . by any of the Departments of the Government, of men of well-known secession sympathies." 1 5 T h e Potter Committee, conscious of these demands, itself a source of such criticisms, labored to expose disloyalists in the civil and military services. T h a t committee met almost daily after its formation in July 1861. T h e first step in its loyalty investigation was to request from every department head the names of employees who had not taken the required oaths of office. At the same time the committee welcomed all who possessed information of alleged disloyalty to appear before it. Between July and October, 1861, the Potter group investigated more than five

CONGRESS, CABINET, AND CIVIL SERVANTS

3

hundred and fifty disloyalty charges; heard more than four hundred and fifty witnesses. "Every day," reported Potter, "new cases are being brought to the attention of the committee." 1 8 Whatever proofs of disloyalty it might find, the Potter Committee had no power to remove an offending government employee. Its function was to act as a medium through which patriotic informers could divulge evidence of the infidelity of others. T h e lowly clerk might give to the investigating committee evidence concerning his fellow-clerks' activities, although he might hestitate to approach his departmental superiors. For the Potter Committee afforded the cloak of anonymity to the informer, at least until that committee's report was published. Those accused did not know who their traducers might be. 17 Indeed, most subjects of disloyalty complaints knew nothing of the charges against them, nor could the impeached defend themselves before the committee. T h e first information of the accusation came to the employee concerned when his superior officer took action in his case. T h a t action might be the immediate dismissal of the employee, or a request for his resignation, or an opportunity to answer the charges. These procedures met congressional opposition. Representatives Olin of New York and YVickliffe of Kentucky sponsored a resolution, in December 1861, giving to those accused of disloyalty by Potter's committee the right to appear before that group and defend their Unionism. Potter's critics condemned the committee's secret method of inquiry, pronounced it unjust if not illegal, and questioned the validity of any conclusions the committee might reach. Wickliffe charged that the Potter Committee was destroying the separation of powers between the legislature and executive. T h e executive Secretaries, Wickliffe insisted, had the sole right to set policies for their employees. Was it Congress' function, the Kentuckian demanded, to organize a committee: . . . to go about the highways and byways, . . . and inquire of J o h n D o e a n d Richard Roe, "Have y o u heard that such and such a m a n is not exactly as he ought to be to hold office?" 18

Potter rose in defense of his committee's method of operation. H e denied that injustice arose from his investigations, reminded the House that the committee was one of inqury, not adjudication. Perhaps some loyal men did suffer because they could not defend their integrity. War demanded sacrifice, the need for loyalty transcended individual rights, true patriots ignored inconveniences. What, Potter asked, was the worst that could befall a government employee mistakenly accused of disloyalty? If he lost his official post he was merely returned to the level of the ordinary citizen. Let him then evidence his patriotism and join the colors. Potter frankly admitted that some

4

ERA

OF

THE

OATH

of the accused civil servants had but slight evidence levied against them, ". . . yet in no instance has any evil consequence followed . . . other than the loss of office." 1 8 Reflected in Potter's defense of his committee's procedures was the larger picture of the Union in its first year of civil war. Trials by military commissions, arbitrary arrests of civilians, suspension of the privilege of the writ of habeas corpus—all found defenders in the North. 2 0 Did such measures, Congress' loyalty oaths, Potter's loyalty investigations, turn some Northerners to active support of the rebellion? T h i s argument failed to impress loyalty-conscious Congressmen and executive officials. It was not the government which increased disloyalty in its efforts to save the Union. Perhaps that ardent patriot, Joseph Holt, expressed this argument best when he wrote: The vigorous measures adopted for the safety . . . of the Government . . . may seem open to criticism. . . . Whatever of severity, or even of irregularity, may have arisen, will find its justification in the terrible necessity under which the Administration has been called to act. When a man feels a poignard . . . at his bosom, he is not likely to consult the law books as to the mode or measure of his right of self-defense. . . The man who thinks he has become disloyal because of what the Administration has done, will probably discover, after a close examination, that he was disloyal before.21 Potter agreed with Holt's argument, and used it to prevent Congress from terminating the secrecy in which his committee operated. He won the day. T h e House defeated Olin's and Wickliffe's resolution. T h e loyalty probes continued behind closed doors. 22 T h e y continued in an atmosphere of fear and uncertainty. Military reverses underscored the need for home-front unity. Recriminations and accusations echoed through the halls of the government's bureaus. No man knew whether his neighbor might not be scrutinizing him, weighing his words and actions, informing on him to the Potter Committee. A "reign of terror," as one observer described it, afflicted the civil servants. 23 High administration officers called upon all patriots to become informers, to offer to President and Congress any evidence they might have concerning the presence of disloyal persons in government service. 24 Influential private citizens approved these requests, supported Potter in his loyalty investigations. Support for the Potter Committee became official Republican doctrine, one partisan pamphleteer lamenting that ". . . the investigations have not been more searching and the removals more numerous." 2 5 In those troubled years disloyalty had many definitions. An anonymous clerk sent to the Potter Committee the name of his desk neighbor, T h o m a s L. Darnall. According to this informant, Darnall was pro-Southern, had flown a secession flag from his house, had spoken in the most "contemptuous terms" of the Northern cause." W i t h this

CONGRESS,

CABINET,

AND C I V I L

SERVANTS

5

letter as its evidence, the Potter Committee placed Darnall's name on a list of supposedly disloyal government employees. Was such evidence essentially irrelevant? Not in Darnall's case. T h e War Department discharged Darnall for disloyalty months before the Potter Committee accused him of that offense.27 Yet Potter himself admitted that "Slight and frivolous evidence" sometimes placed an employee's name on the disloyal list. In one case, three cartridge makers of a Washington arsenal had substituted "Home of the slave" for the proper line in the national anthem. 28 A government worker had to be careful of the activities of his own family; one paymaster earned a place in the disloyal roster because ". . . the feelings and sympathies of his family are with the southern secessionists." 29 Potter found a postal clerk guilty of disloyalty because of the latter's associates, ". . . [who] are known to sympathize with the rebels." 30 Chairman Potter sanctioned the use of evidence of this nature in the interest of national security.' 1 Potter's committee evolved three general classifications of presumptive disloyalty. T h e first was overt avowal of sympathy with the rebellion. T h e next category concerned those employees who were not overt Unionists; these seemed to Potter hardly more reliable than the actual pro-Southerner. T h e third class of allegedly disloyal personnel embraced those who failed to comply with the loyalty oath requirements. 32 After Potter's group examined allegations of civil servants' disloyalty it drew up two lists of names. T h e first contained the roster of government employees concerning whose disloyalty the Potter investigators had no doubts. T h e second list was of those against whom the evidence ". . . furnished a well-grounded suspicion of disloyalty." 33 These listings went to every executive department, and were followed by supplemental lists as Potter completed more investigations. At this point, the formal authority of the committee ended. It was u p to the department head to take action. But Potter had informal means available to enforce his conclusions concerning allegedly disloyal employees. By publishing his findings, especially in official reports and newspapers, Potter exerted pressure on executive officials to conform to his committee's conclusions.3·1 In this connection, the case of Bailey Brown merits attention. In 1861, Brown was gatekeeper at Benning's Bridge, an important point of transit over the Eastern Branch of the Potomac. T h e Interior Department, in April of that year, discharged him for doubtful loyalty to the North. Brown soon regained his job, after convincing the authorities of his Unionism. He performed his simple duties, without official complaint, until December 1861. At that time, anonymous sources convinced Potter that Brown was disloyal, and that he had spoken as only a secessionist could speak. Brown, according to this information, had associated with notoriously prorebel persons. 35 Brown's

6

ERA

OF

THE

OATH

superior officers refused to discharge him on this evidence. In a strong public report, and in newspaper statements, Potter demanded Brown's dismissal. Brown decided to take a hand in his own defense: he secured character references certifying to his unqualified fidelity to the government and placed these recommendations before his superior officers. A minister, for example, who had known Brown for eight years, wrote in his support. Brown's immediate superior stated: " I come in daily contact with him [Brown.] I feel sure the charges [of disloyalty] are unfounded. . . . Mr. Brown has proved himself a valuable and efficient officer." " It was futile. T h e gatekeeper could not withstand the Congressional loyalty-investigating committee. In January 1862, Brown ended the struggle for his job. " I now resign," he wrote, "under the impression that truth will eventually prevail over error. I would be the last man to create trouble or continue it." 3 7 Brown left the government's service. T h e Potter Committee extended its investigations of disloyalty to encompass lowly gatekeepers like Brown and high army and navy officers. For Potter consistently held that the jurisdiction of his committee included military as well as civilian officers of the government, contractors as well as clerks, Capitol guards and White House gardeners. 3 8 Some of the executive Secretaries disagreed with Potter's all-inclusive concept of the functions of his committee. T h e War and Navy Secretaries refused to consider the claims which Potter advanced concerning the alleged disloyalty of military and naval officers.39 Potter included such names, however, in his published report on disloyal persons in the government's service. T h a t report, containing the conclusions distilled from six months' of loyalty-investigating, reached the House in J a n u a r y 1862. In it, Potter claimed a good measure of success in ferreting out Southern sympathizers among the government's employees. Was he correct? Did his method of identifying disloyalty succeed in purifying the government bureaus of prorebel contamination? Within limits, an analysis of Potter's report affords some insight into these problems. Such an analysis, however, must be made in the light of contemporary conditions. Lincoln's Secretaries, for example, had instituted loyalty investigations in their departments. They discharged many officials who never appeared on Potter's lists, or who appeared there long after they had left the civil service. Many others resigned, often giving no reason for their action. 40 Therefore, Potter's report can afford no total estimate of the number of disloyal employees in the government's service in this period. A second important limitation lies in the complete lack of agreement on terminology. Government officials and Congressmen meant very many different things by "disloyalty." T h e spoils system took its toll of public servants. T o clothe political patronage in

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respectability, government officials often labeled discharged employees as disloyal when that disloyalty had consisted of non-Republicanism. T h e s e factors, therefore, make it extremely difficult to know why an official discharged a government servant, or why the latter resigned." A brief statistical survey of Potter's report, however, does have some value. It can afford a general estimate of the accuracy of his method of operation, as well as of the validity of the disloyalty charges which he presented to the executive departments. Potter sent to the W a r Department the names of fifty-seven allegedly disloyal employees. By J a n u a r y 1862, twenty of that number had left the government service, either through discharge or resignation. T h e Secretary of W a r refused to consider the charges against about twenty of the remainder, who were military officers and civilian contractors. In addition to the names which Potter supplied, the W a r Department discharged an indefinite number of other employees, without specifying the reasons. T h e Potter Committee found thirty-one presumptively disloyal persons in the Navy Department. In December 1861, Gideon Welles reported that he had discharged two men whose names had appeared on that list. B u t here, too, many other removals for disloyalty had occurred which found no place on Potter's roster. O n e hundred and four names went to the Treasury Department. By August 1861, twenty men from this list were no longer in government service. T h e Interior Department harbored fifty-one disloyal employees, according to Potter's findings. O f this number, twenty-nine were gone from federal employment by J a n u a r y 1862. T h e Postmaster-General received Potter's roster of twenty-three disloyal men in his department. By early 1862, nineteen of these men had vacated their positions, half of them involuntarily. T h e postal head vigorously defended the fidelity of the remaining three employees. Fifty-four men in the Attorney-General's office found a place on Potter's disloyalty list. No records exist to indicate how many of these remained in the federal employ. Potter did not concern himself with the State Department. H e was satisfied with the loyalty house cleaning carried on in the department under the sponsorship of its own officials. Among the President's servants, Capitol employees, Government Printing Office workers, and other miscellaneous personnel, Potter found twenty-eight alleged Southern sympathizers. T e n of these were gone from the government's service by the end of 1861. 42 In summary, Potter found three hundred and twenty persons he presumed were disloyal in all the federal departments. O f the five hundred cases he investigated, ninety were no longer in government employ by January 1862. T h e s e figures indicate that Potter's loyaltyinvestigating committee did unearth a substantial number of cases

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wherein the firing or resignation of those he accused gave some color to his accusations.4' As a loyalty investigator Potter achieved varying degrees of cordiality in his relations with the executive officials. Lincoln's first Secretary of War, Simon Cameron, consistently refused to give Potter more than the minimum of cooperation; he rejected Potter's evidence on military officers and civilian contractors accused of infidelity. When Edwin M. Stanton assumed that office in mid-January 1862, he spent part of his first day as War Secretary conferring with Potter. Stanton maintained friendly relationships with Potter and with the Congressional Committee on the Conduct of the War. 14 The Treasury Secretary, on the other hand, permitted his employees who were on Potter's lists to secure letters of reference in their behalf. Chase questioned the reliability of much of the evidence which the Potter Committee had accepted. The Treasury head refused to take action in any case until he himself examined the evidence, and had satisfied himself that it was valid. Potter considered Chase's conduct in this regard as something less than full coöperativeness. The loyalty investigator failed, however, to secure the House's approval of a recommended resolution of censure.45 When the Potter report reached the public in January 1862, the cloak of anonymity dropped from the witnesses who had given evidences of disloyalty. Angry clerks sought out their detractors, and fisticuffs added to the clamor of wartime Washington. Some of the witnesses hurriedly left the capital. The Washington Star found little reliability in the proceedings of the committee, and considered most of the evidence of a low quality, if not falsehoods.44 The publication of that single report terminated the activity of the Potter Committee.47 By early 1862, the first emergencies were over. The North was learning how to wage a great war. The executive departments themselves conducted extensive inquiries into the loyalty of their personnel. In a large measure, the need for Potter's loyalty investigation ended after 1862. But if that committee ceased to operate, it left an enduring trace in the memory of official Washington. Six years later, during the 1868 electoral contest, a Treasury Department clerk compiled a roster of the political affiliations of his fellow civil servants. He marked as "unsafe" and "Democratic" a clerk who had been in the Treasury offices from 1859 to 1868, and who had been anonymously "reported to [the] Potter [Committee] in 1861, on account of disloyalty." In the opinion of this political chronicler, " . . . he has never shown improvement since that date." The compiler marked another clerk for removal in the event of a Republican victory at the polls in 1868. This clerk had been ". . . discharged from the Interior Department because he would not take the oath of allegiance," after the Potter Committee had investigated his case. The Treasury De-

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partment had employed him almost immediately, and he had remained in the government service during the intervening years.4* Before the Potter Committee came into existence, in July 1861, the executive departments had commenced their own investigations into the loyalty of their personnel. From the first days of the war, Lincoln's untried Cabinet sought to weed out the disloyal from their employees. They quickly accepted Bates's suggestion that all the federal employees renew their oath of office. When Congress passed the August 6, 1861, oath law, they applied it with equal vigor. In addition, each department initiated loyalty tests of its own. No standardization or correlation existed in these procedures. These departmental loyalty investigations were probably more effective than was the work of Potter's committee. T h e evidence indicates that Potter's group usually supplied the department heads with names of alleged disloyalists who had already been exposed by the executive loyalty tests. Thus, in the State Department, all the personnel took the required oath by July 1861. Supervisory officials inquired of their subordinates ". . . as to whether they considered that oath as still binding upon them, and in every case they answered in the affirmative." 49 Seward asked all his employees if they would defend the departmental offices against the rebel invasion which at that time seemed imminent. All said they would. T h e clerks formed a military unit, complete with arms and drills. Some, however, balked at this last step. "No person," Seward wrote, "was retained in office who failed cheerfully to perform this duty." so Seward carried on an extensive investigation of State Department loyalty. He discharged many employees for disloyalty; in one letter he spoke of thirty-four clerks and minor diplomatic officials whom he had fired for that cause. 51 Others he suspended temporarily pending further investigation. In one instance, a consul stationed on Prince Edward Island found his salary withheld because of charges of alleged infidelity. H e submitted satisfactory proof of loyalty, reswore to the oaths of office, and retained his post.52 Another consul faced similar charges. Seward withheld his commission until he had conferred with the Senators from the consul's state. T h e Senators certified to the consul's Unionism, and the Senate confirmed his appointment. Still doubtful, Seward bowed to the Senate's findings, and approved the commission. T h e Treasury, however, refused to pay the man; Chase was still not satisfied with his loyalty. Not until the consul submitted many letters of reference attesting to his fidelity, and resubscribed the oaths of office, did Chase authorize his salary warrant." T h e Postmaster-General, Montgomery Blair, followed a similar course. When the Baltimore riot and the subsequent Bull R u n defeat threatened the safety of Washington, Blair again administered the

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oath of office to all the employees of his department. "All who declined it," B l a i r reported, "or hesitated to take it, forthwith were removed from office." W h e n the August 1861 oath act became law, Blair " . . . promptly administered [it] . . . without exception . . . and the same consequences followed any refusal of that o a t h . " M Blair found an especially complex problem in the post offices located in the border states. T h e war affected life in this area with peculiar dreadfulness. Blair permitted no deviation on the border concerning the question of loyalty. " I n every case," he ordered his subordinates in May 1861, "where you find an avowed secessionist in the possession of a Post Office . . . or where the evidence of disloyalty to the Union is clear and exact, you will, in my name and by my authority displace the Post Master." " Caleb Smith, Secretary of the Interior, also administered the required oaths, and extended their application. An uncertain number of Interior Department personnel left government service because of actual or alleged disloyalty. Democratic newspapers reported mass discharges, but the evidence is lacking. 5 6 A special problem faced Smith in the new District of Columbia police force which came under the supervision of his department. He was not sure that this Board of Police were federal officials within the meaning of the August 1861 oath act. For clarification he turned to the Attorney-General. Bates concluded that the police were subject to the oath law and recommended that Smith apply it to them as quickly as possible." T h i s was the first time that the problem of delimiting the scope of the loyalty tests of the Civil W a r period arose. It was not the last. W i t h i n his own unit, Attorney-General Bates had little difficulty because of loyalty oaths or other tests of fidelity. From 1861 to 1864 his entire staff numbered but eight persons. In J u l y 1861, all but one of these took the required oath. T h e exception was a Negro laborer, to whom Bates did not tender that oath. 58 . In all the other executive departments federal employees took the required oaths. Aided by the Potter Committee's list of allegedly disloyal personnel, and as often on their own initiative, the executive Secretaries sought to oust Southern sympathizers from their units. An employee who refused to take the oaths was sure of instant dismissal. 59 When John H. Mattingly, a postal clerk, hesitated about subscribing the oath of office, Potter found this substantiation of suspicions of disloyalty on the basis of the clerk's pro-Southern associates. Although Mattingly's superiors at first resisted Potter's allegations, subsequent investigations conducted by postal officers confirmed the truth of his secessionist sympathies. Mattingly threw up his j o b and deserted his staunchly Unionist wife. He died on the Peninsula as a Confederate sergeant. 60

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T o many others, however, loyalty oaths had no moral weight. Men who later joined rebel forces took them without protest. A truculent Treasury clerk, J o h n Fitzgerald, uttered disloyal sentiments after taking the oath of office, and publicly pronounced, " I could take 500,000 such oaths, as they amounted to nothing at a l l . " 6 1 M o r e conscious of personal integrity was A. J . Falls, a Census Bureau clerk. H e had many Southern friends, and a wife who had a reputation as a virulent anti-Lincolnite. Falls refused to take the required loyalty oath to the Union. T o Potter, this was conclusive—Falls was disloyal. After what was apparently a period of introspection concerning his ultimate allegiance Falls took the oath. He retained his post until J u n e 1863, when he resigned, volunteered for the Union army, and lost his sight at Gettysburg. 6 2 Government employees who criticized the Union cause or who praised the Confederacy came under the scrutiny of their fellowworkers and superior officers. Richard Gallegher was a Patent Office laborer. H e had held that post for twenty-one years when the war came. Anonymous witnesses informed Potter that Gallegher had said, " I am in favor of secession." 6 3 Gallegher denied the charge, and offered to refute his neighbors who were so positive in their allegations to the investigating committee. T h e r e were no takers. T h e aged laborer felt himself dishonored. His priest recorded the old man's bitterness when the cleric wrote to support Gallegher's denials of infidelity. Gallegher resigned his j o b and returned to his native Ireland. T h e r e he became active in abolition societies, and acted as a volunteer speaker for proUnion organizations both in Ireland and England. In 1866 he returned to the U n i t e d States, regained his job, from which he retired in 1875. 64 C. E. Upperman found his position as a Patent Office clerk threatened because he associated with ". . . men who have been removed from [federal] office on account of secession proclivities." 6 5 Upperman was unusually capable of defending himself. He had been an attorney in Wisconsin, where he had opposed Potter both in the courtroom and on the stump. Upperman outlined his reasons for maintaining his association with men whom he admitted were pro-Southern. T h e y were relatives, one of whom had financed his legal training. B u t Upperman denied that such association resulted in a lessening of his own patriotism, which he described as "ardent, persisting." 6 6 Perhaps he proved his point when he died at Vicksburg, as a lieutenant of Union cavalry. 67 Gideon Welles, the Navy Secretary, limited the definition of "disloyalty" in his department to overt action. Welles was as conscious as any that " . . . men most honored, of the highest standing in the civil service, were unmindful of their allegiance [in 1861]." 08 H e demanded that his civilian employees take the required oaths of office and did

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discharge a n u n c e r t a i n n u m b e r w h o refused. B u t Welles placed little credence in the type of hearsay evidence which o f t e n served the Potter C o m m i t t e e as a basis for charges of disloyalty.™ H e refused to accede to d e m a n d s f r o m office-hungry R e p u b l i c a n s to e q u a t e the Democratic party label with unfitness for federal office. T h i s was not true in the case of o t h e r C a b i n e t officers. Blair, for instance, replaced the postal officials h e h a d discharged for disloyalty with m e n w h o m he considered unquestionably loyal. T h e y were also u n q u e s t i o n a b l y Republican. 7 0 Welles retained Democrats in Navy offices over the opposition of administration leaders. H e desperately needed qualified personnel, for resignations h a d seriously weakened the efficiency of his d e p a r t m e n t . Welles a d m i t t e d t h a t some employees were not e x e m p t f r o m suspicions of disloyalty, b u t only one, he believed, h a d proved false to the trust placed in h i m . " I n the Navy D e p a r t m e n t , " Welles later recalled, " n o t h i n g of w h a t was called proscription for o p i n i o n ' s sake was exercised . . . in contrast w i t h some o t h e r . . . [departments]." H e maintained his stand in defiance of the clamor of loyalty-conscious a n d office-conscious critics. 11

By mid-1862, federal employees h a d taken two oaths of loyalty. T h e first, in April 1861, was a restatement of the prewar o a t h of office. T h e second, in August 1861, was prescribed by Congress. Both oaths were statements of f u t u r e allegiance to the U n i o n ; federal officials who h a d discharged employees because of past word or deed acted w i t h o u t statutory authority. So far as the laws were concerned, the civil servant faced disqualification f r o m p u b l i c office only if he refused to affirm his f u t u r e fidelity. As the war progressed this was to change. A n d m a n y others in the N o r t h in addition to g o v e r n m e n t workers were to face loyalty oaths a n d loyalty tests.

T H E F I R S T YEAR: LOYALTY T E S T S S P R E A D Loyalty has hitherto been a sentiment rather than a virtue; it has been more often a superstition or a prejudice rather than a conviction of the conscience or the understanding. Now for the first time it is identical with patriotism and has its seat in the brain and not the blood . . . it is logical. —JAMES RUSSELL LOWELL*

"P XVEPORTERS ARE CONSIDERED AS SPIES AND EXCLUDED FROM THE DE-

partments. T h e oldest rats and foxes glean nothing." 1 Sam Ward's complaint from Washington, in May 1861, reflected the first hurried efforts of Lincoln's administration to combat the Confederate forces, to cleanse its own services of prorebel sympathizers, to staff the avenues of communication with men loyal to the Union cause. Newspaper correspondents had to take loyalty oaths before army officers would permit them to accompany federal expeditions. 2 Winfield Scott ordered all employees of the American Telegraph Company, which transmitted military communications, to take an oath of allegiance and secrecy, while local judges in the western counties of Virginia applied a Union loyalty oath to all civilian telegraphers in the area, and to all residents whose fidelity was questioned. 3 Similarly did federal officers in divided Missouri make loyalty oaths prerequisites for civilians. T o prevent confiscation of property, to escape imprisonment, or, as Samuel Clemens learned, to be a steamboat pilot, the Missourian inside federal lines had to swear fidelity to the Union. 4 In California Confederate sympathizers languished in rough stockades until they pledged their adherence to the Union; Boston's patriots secured a similar oath from the officers and men of federal warships in that harbor; the American Legation in London required a loyalty oath of all Americans in England who wished to renew passports or vises.5 These requirements were made without statutory sanction, created in each area by officials who drew u p special oaths to fit the local situation. Even as they did, executive orders, Congressional dictates, and • "Reconstruction," North American Review, April 1865, p. S42.

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military policy combined to spread loyalty testing and oath taking still further across the embattled nation. Postal contractors felt the effect of loyalty tests in May 1861. Although these men were not civil servants, postal regulations of long standing had required them to take the prewar oath of allegiance as a prerequisite for the completion of the contract. When the war began Postmaster-General Blair carefully scrutinized the conduct of these contractors. In every case where he felt the loyalty of the contractor to be questionable Blair revoked the contract, withheld payments due them, and assigned that contract to one better able to swear allegiance. By December 1861, Blair was satisfied that only loyal men held postal contracts. But where he could find no loyal man to replace those who had abrogated their contracts by disloyal action or refusal to swear loyalty to the Union, ". . . the local offices have been discontinued rather than that they should be held by repudiators of public faith." e Caleb Smith, Secretary of the Interior, examined the rolls of military pensioners to whom a semiannual payment was due in September 1861. On his own authority, Smith ordered that all pensioners take the civil servants' oath of August 6, 1861, before he authorized payment. A pensioner who did not submit the required oath was automatically denied his stipend. Subsequently, Smith informed Congress that he had dropped from the pension rolls the names of all persons, North as well as South, whom he suspected of disloyalty or of sympathy with the rebellion. 7 Smith's standards of "disloyalty" and "sympathy with the rebellion" were very elastic. A widow of a Mexican War veteran living in Maryland lost her pension on the basis of unsupported allegations by her neighbors that she had cheered the mob which stoned Union troops early in the war.8 George Wallace Jones, a veteran of the War of 1812, ex-Congressman from Michigan and Wisconsin, ex-Senator fom Iowa, and United States Minister to Colombia in lSBl, lost his pension and his position when his wife's pro-Southern letters received newspaper publication.® A New Yorker who spoke too publicly of his affection for Southern relatives never received his pension after January Γ862. Smith refused him a hearing even when Union generals attested to the man's bravery on Lake Erie in 1814. T o such appeals, Smith wrote, "Past honor is cancelled by present dishonor; past loyalty by present disloyalty, past allegiance by present treason. I will not permit the funds of my department to go to a traitor." 1 0 T o Smith, residence in an insurrectionary state was enough to warrant suspension of pension payment until the pensioner could positively prove his loyalty. In the greatest number of cases, this meant that a Southerner had to wait until federal troops occupied his district before he could seek to regain pension payments. He must prove his

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refusal to aid the rebellion, and offer evidence to show that he supported Union authority at the first opportunity. 11 Many Southerners f o u n d this extremely difficult to prove. In 1860, the 2,073 pensioners in the rebellious states received $168,364 per month. After Smith's pruning, that amount decreased to $8,223.12 Smith applied the same standards to pensioners in the border-state areas. Similar problems of definition of disloyalty and proof of loyalty resulted. Virginians, Missourians, Tennesseans, and Kentuckians had special difficulty in proving their right to pensions under the rules which Smith ordained. Interrupted communications prevented them from learning of these requirements and delayed their loyalty oaths and affidavits of fidelity. T h e altering fortunes of war made complex the problem of ascertaining whether a specific pensioner had aided rebels, or supported the Union. 13 T h e Secretary of the Interior knew that his actions were without statutory sanction. He appealed to Congress to sustain him. 14 As early as July 1861, a House resolution giving Smith the authority he desired failed to gain a hearing because of parliamentary difficulties. 15 T w o weeks later, the House approved a similar measure without debate. In the Senate there was but one objection. Democrat Milton S. Latham of California attempted to add a provision requiring the Secretary of the Interior to prove charges of disloyalty before he canceled a pension. T h i s would prevent abuses of power, Latham argued. 18 L. S. Foster, Republican Senator from Connecticut, countered Latham's objections with some pessimistic views of h u m a n nature. Of what use would Latham's provision be, Foster demanded, when the only real bar to abuses lay in the integrity of officials? Granted, some informants falsified evidence in order to injure a pensioner. Would they not merely extend the range of their perjury in order to meet such a requirement as Latham proposed? No, Latham's amendment could serve no useful purpose. T h e Californian was convinced and withdrew his opposition. 17 Lincoln signed the bill on February 17, 1862. By this act Congress authorized the Secretary of the Interior to ". . . strike from the pension rolls [all] who have or may hereafter take u p arms against the . . . United States, or who have in any manner encouraged a sympathy with . . . [the rebel] cause.18 A month earlier, Congress had included in the 1862 pensions-appropriations act a provision that "no pension shall be paid . . . to any person who has engaged in the present rebellion . . . or who has in any way given aid and comfort to those engaged in the rebellion." 1 9 Disloyal heirs of deceased pensions were next to feel the test of loyalty. In July 1862, Congress transferred their rights to heirs of unimpeachable loyalty. 20 Congress agreed with Secretary of the Interior Smith; rebels were entitled to no bounty from the Union.

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Military personnel also felt the effects of the increasing loyalty testing. T h e West Point military academy had supplied many recruits for the rebel services. Northern public opinion particularly condemned those who had received their training at public expense and then cast their lot with the rebellion." Soon after Congress convened in 1861, New York's Representative Olin introduced a measure prescribing a loyalty oath for the cadet force. In its form, Olin's oath closely resembled the August 1861 civil servants' oath which Congress was considering at this time. It, too, was a statement of future fidelity to the Union and a repudiation of state sovereignty. In the House, only Vallandigham rose to protest against the proposed loyalty test for the military cadets. He found the oath particularly execrable, and insisted that no conflict existed between the ". . . allegiance which every man owes to the State in which he lives, . . . and [that] which he bears to the United States." T o Vallandigham, the addition of an oath which the Constitution did not specify was an illegal extension of Congressional power." Olin defended his bill. He maintained that the proposed oath forced no man to renounce his allegiance to his state. It merely placed that allegiance in its proper place—secondary to the supreme fidelity all men owed to the Union. "This oath," Olin stated, "will not permit that . . . [a cadet] shall set aside his allegiance to the general Government whenever a band of traitors and rebels shall choose to set up a defiant authority."" The bill passed the House; it went through the Senate without debate. At West Point the cadets marched to chapel to take the new oith. T o some it was a dreadful moment. One young cadet from the South dreaded the consequences of his decision to take the oath. He write, "I almost cried before I went over there, so you may conceive how I was bothered mentally. It was a solemn occasion for me." 24 Any c;det who refused the oath faced immediate discharge. Two "plebes" resigned that day rather than take the new loyalty test." One youtlful cadet from Ohio, while home on leave, announced his intentioi of taking the oath. His minister in a sermon blessed the youth's decison to take "the Christian soldier's Oath of Allegiance to Jesus as the Captain of your Salvation." 2 * Lincoln, in mid-1862, increased the spread of the loyalty tests. He ordered all naval and military officers to renew their oaths of alegiance. Simultaneously, Congress conducted a loyalty investigatioi of the naval academy.27 In another instance, patriotic Northerners far removed from Wellington demanded, and secured, laws designed to test fidelity. Fom Rio de Janeiro, in October 1861, American shipmasters wrote to the Secretary of State. T h e Brazilian harbor was crowded, they complaiied,

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with merchant marine officers who blatantly boasted of their Confederate sympathies, and received protection from their American registry. T h e Unionists asked Seward to ascertain "the propriety of instructing the Collector of Customs . . . to require the commanders of all American vessels to take the oath of allegiance." 2 8 Seward thought it a good suggestion. He appealed to Congress, argued the need for such legislation in the interests of national security. Within a month from the date of Seward's request a bill appeared in Congress requiring customs collectors to administer the civil servants' oath (of August 6, 1861) to merchant shipmasters before they could sail from any American port, or from any foreign port where American consular facilities existed. No Congressman, no Senator, contested the measure; Lincoln signed it on March 6, 1 8 6 2 . " With or without Congressional sanction the State Department increased its use of loyalty tests. Seward approved the requirement made by American diplomatic personnel abroad which prescribed loyalty oaths for all Americans desiring passports or vises.30 T h e State Department head was determined to prevent pro-Southerners from going abroad where they might influence foreign opinion in favor of the Confederacy. He arranged for the police commissioner of New York City to conduct a preliminary investigation into the loyalty of passport applicants of dubious fidelity/' When Congress passed the new civil servants' oath law in August 1861, Seward applied it as a prerequisite for all applications for passports and vises.32 T h e resident of a Southern state had special difficulties. H e had to prove to suspicious federal officials that his object in going abroad would not harm the Union cause. If the Southerner could convince the authorities of his loyalty he could generally secure a passport, but his willingness to take the oath was no assurance that he would secure one. T h e oath became a formal prerequisite; the State Department investigated the loyalty of the applicant after he swore to his Unionism.·''' Although Seward stated that the oath he demanded was one ". . . ordained by l a w , " t h i s was not the case. Congress had created that oath for civil servants. When executive officials extended its application they did so with the force of no law but that of felt necessity. And there were complaints, for the loyalty tests resulted in inconvenience and delay. Vocal patriots defended Seward's loyalty-testing course. "Suppose," demanded a prominent businessman, "you are put to trouble in getting a passport? No truly loyal man will be prevented from going and coming as his business may require." T h e results were worth the trouble, the writer argued, for rebel sympathizers were prevented from going abroad. 35 And Seward himself stated at a public meeting, "No one of us ought to object when called upon to reaffirm his devotion to the Union, however unconditionally." 36

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W i t h or without public approbation, Seward continued and enlarged his loyalty-testing policies. In September 1861, he required all who desired to come to the United States to have a passport or vise. Foreigners affected by this order had to swear to the prewar pledge of allegiance to the Union. Seward publicized this rule before notifying his officials about it, and the resulting confusion was great; American legations abroad were soon flooded with work; our diplomatic officers complained that the regulation was complex and unclear. Which oath was proper? Was this or that individual an exception? It soon became apparent that strict enforcement of the new policy was impossible. In December 1861, Seward conceded that ". . . passports are not required in the cases of the poorer classes of steerage passengers, such as Germans or Irish." But for the upper-deck immigrants ". . . in better circumstances," the passports and loyalty oaths, remained. 37 Aliens in this country who wished to extend their visits were generally exempt from the loyalty requirements. But when a government official or private citizen impeached the pro-Unionism of an alien that individual faced the gamut of loyalty investigation and oath test.38 At all times Seward sought strict enforcement of his loyalty regulations. He reiterated this theme in strongly-worded communications to all diplomatic personnel. If an applicant perjured himself in seeking a passport Seward ordered that the Department reject all future applications from that individual. 39 But the understaffed State Department proved incapable of enforcing its regulations; Seward secured outside help. He arranged with the Treasury Department to have its customs collectors in various port cities administer the required loyalty oaths to Americans desiring to go abroad. These customs officers were, however, concerned primarily with Treasury duties and Seward learned that State Department loyalty rulings were often honored in the breach. Although he stressed the importance of the loyalty requirements and their success in checking ". . . the communication of disloyal persons with Europe," Seward admitted that the arrangement with the Treasury Department was unsuccessful insofar as his loyalty requirements were concerned. 40 T h e Secretary of State found another hole in the loyalty dike in the persons of the notaries public before whom passport applicants swore to their fidelity. Some notaries permitted a large number of persons to secure passports without taking the oath. Seward, furious at these "passport brokers," sought to end this practice. He achieved some success when he required all notaries and consuls to submit semimonthly rosters of all passport recipients, accompanied by the actual oaths taken in each case. Other notaries were more patriotic. Seward commended one New York firm of notaries for its diligence in the matter of loyalty oaths. This commercial organization had made its own

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policy; it rejected applications for passports from persons the notaries suspected of disloyalty by refusing to administer the required loyalty oath!" At about this time, Congress gave statutory recognition to at least one of the loyalty-testing procedures of the State Department. In March 1862, Sumner introduced a bill which would authorize the administration of the loyalty oath to American citizens abroad. As the chairman of the Foreign Relations Committee, the Massachusetts Senator was able to expedite the consideration of the measure in that committee. He reported the unamended bill to the Senate in April 1862; it passed the Senate and House without debate and became law on April 17, 1862. By the terms of this law, no passport could be issued to any American abroad who refused to take the August 1861 civil servants' o a t h . " For the remainder of the war, the State Department administered loyalty tests without Congressional sanction to Americans who desired to go abroad. In March 1862, Seward learned of a troublesome situation which his loyalty regulations were causing in the American consulate in Rome. He wrote the American consul there, W. J . Stillman, cautioning him strictly to enforce the oath requirements. 4 3 Stillman heartily endorsed the loyalty tests and, to perfect the system, obtained the cooperation of the Roman police. 44 T h e Papal authorities agreed to refuse their vises to American passports unless the vise of the American consul appeared on the document. T o secure Stillman's vise, all Americans in Rome had to take the loyalty oath. 4 5 Southerners in R o m e hated Stillman for his power over them. 46 They appealed to the Papacy to end the agreement, but the R o m a n officials reluctantly confessed their inability to do so as long as the American authorities desired to maintain it. And Stillman did so desire. 47 But he left Rome late in 1861, and when he returned the picture had changed. In his absence, J . C. Hooker had assumed the consular functions, and he ended the arrangement with the Vatican regarding American passports. Stillman protested to the Papal authorities, but they refused to revive the system, which had proved to be an embarrassment to them.4® Over Stillman's objections, Seward decided to placate the Papacy. H e rescinded the departmental regulations which required loyalty oaths of passport and vise applicants at the R o m a n consulate. 49 Americans who objected to the oath had only to certify this fact to the R o m a n police; they then received a Papal vise, and vere free to travel from Rome. 5 0 Although the oath requirement largely ended in the Papal States, it continued in force in all the other diplomatic stations. 5 ' Some Southerners abroad who did not find Union loyalty oaths to their liking claimed that such tests were illegal on foreign soil. In one case,

20

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an English lawyer informed the American consulate in London that " . . . we had not the right to administer oaths in England." The American diplomatic officials rejected this contention and continued administering loyalty oaths to all Americans, confiscating the passport of any American who refused the oath. 53 Seward confirmed his subordinate's assertion that American consuls could administer oaths to their countrymen abroad. H e would accept no complaints from foreign nations on this matter. 34

By early 1862 the roster of loyalty tests was already impressive. Civil servants, shipmasters, military officers, postal contractors, pensioners, applicants for passports, telegraphers—all swore to their loyalty to the Union. But the story has only begun, for the years to follow witnessed a still wider spread of loyalty tests. T h e y spread from the halls of Congress and expanded with the Union occupation of the South. As battles became fiercer, so loyalty tests became stricter and sharper.

LOYALTY

DEFINED:

T H E I R O N C L A D T E S T OATH The true conditions of American loyalty are exactions of partisan leaders, or in the frantic rostrum or the press. People who do not like at me the epithet "disloyal"; but when they have not taken a single step towards defining, conditions

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QUESTION

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not to be found in passionate declamations of the pulpit, the my political opinions may hurl have thrown this missile, they to me or others, what the true

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thorne during a visit to W a s h i n g t o n in the s u m m e r of 1862, "what proportion of all these people . . . were true at heart to the U n i o n , and what part were tainted with treasonable sympathies and wishes." 1 H a w t h o r n e was not alone in this concern. F r o m the halls of Congress came more legislation designed to demarcate the loyal from the disloyal, legislation which increasingly looked to the past allegiance of the subscriber. W h e n freedom came to the slaves of the District of Columbia in April 18G2, the ex-slaveowner who sought compensation for his freed bondsmen had first to swear to his past, as well as his future, loyalty to the U n i o n . 2 I n a subsequent fugitive slave law, as in the first Confiscation Act ( J u n e 1862), and in a law affecting voters in the federal District, only those who swore to the civil servants' oath of August 1861 could seek official redress or vote. 3 T h e majority of Congress was in agreement with Schuyler Colfax's d e m a n d that " . . . allegiance to the U n i o n [be] the test . . . of protection u n d e r the l a w . " 4 T h e same oath found a place in a n o t h e r loyalty test which executive officials initiated. By midsummer of 1862 p u b l i c announcements for bids on federal contracts bore a r e q u i r e m e n t that no offers would be considered unless they contained the loyalty oaths of the owners or directors of the firms m a k i n g the bid. 5 Congress turned its attention to the federal courts and the loyalty of jurors. How, patriots demanded of their representatives, were rebels to be punished for treason u n d e r judicial processes unless juries were * G. T . Curtis, The True Conditions of American Loyalty [Speech Delivered Before the Democratic Union Association, March 28, 1863] (Papers from the Society for the Diffusion of Political Knowledge, V [n.p., 1863]), 59.

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composed solely of true Unionists? It seemed to J o h n Jay, J r . , as he wrote to Charles Sumner, that stringent test oaths supplied the needed means to exclude rebels from the privilege of federal jury duty. 6 Even as Jay wrote, a bill to meet his suggestion had appeared on the Senate floor, a bill which proposed an oath of past and future loyalty for grand and petit jurors in the nation's courts. B u t the Senate's Judiciary Committee reported adversely on the proposal. T h e Republican committee leader, New York's Ira Harris, declared that the jurors' oath was useless in the North, where no one would hesitate in swearing to it. And Harris condemned the measure for singling special classes from among citizens and questioning their integrity by applying loyalty tests to them. 1 Harris was not willing, however, to maintain his opposition to the bill in the face of the determined assault made upon him by T r u m bull. A more doughty opponent was New Hampshire's Republican Senator, J o h n P. Hale. How, Hale demanded, was a federal court ever to be formed in the South if jurors had to swear to past loyalty? B u t to the bill's sponsor, Garret Davis of Kentucky, the issue was ". . . simply this: will traitors execute the law of treason against traitors?" 8 It was an overwhelming argument, and an overwhelming vote when thirty Senators approved the jurors' oath bill; five cast negative ballots. 9 In the House the loyalty-conscious Potter of Wisconsin sponsored the measure and it passed without debate. Lincoln signed it on J u n e 17, 1862. 10 As the jurors' oath bill neared final acceptance Congress was considering still another loyalty oath measure. In mid-June 1862, an Indiana jurist visiting the capitol noted that he had visited the Senate, where: the point in debate was whether a bill should pass requiring all U . S. officers to swear themselves clear of treason, past, present, and future. Salisbury [iic] of Ν. Y. [sic] . . . opposed the bill on constitutional grounds. I suppose . . . [he] is a traitor . . . T r u m b u l l of Illinois answered. 1 1

T h e oath bill under consideration had passed the House of Representatives with little debate. 1 2 B u t strong opposition appeared in the Senate; a veritable flow of words obstructed its passage, objecting to the enactment into law of the loyalty oath which has ever since been known as the ironclad test oath. Willard Saulsbury, Democratic Senator from Delaware, vigorously opposed the bill. His main point of argument, repeated many times, was that Congress could not require the President and Congressmen of the U n i t e d States to swear to a new form of oath as a prerequisite for office. Illinois' Lyman T r u m b u l l cut through the excess verbiage which surrounded Saulsbury's speech. T r u m b u l l pointed out what

LOYALTY

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23

Saulsbury should have known, that the Constitution requires an oath from Congressmen, but nowhere specifies what oath. T h e Constitution, Trumbull admitted, does specify the oath of office for the President, and the Illinois Senator was willing to amend the proposed test oath to except the Chief Executive from its provisions. 13 Over a ten-day period, the debaters reiterated the same points. Suffice it to say that Saulsbury's intransigence won a minor victory; the Senate amended the House proposal so that the President and Congressmen were specifically exempted from its requirements. But it was to be a short-lived triumph. 14 T h e amended bill returned to the House, and a conference committee sought to adjust the differences between the two versions of the test oath bill. Trumbull headed the Senate group; his opposite number for the House was Wilson. By the end of J u n e the committee arrived at a satisfactory adjustment. They proposed that the bill retain the provision excepting the President and Vice-President from the test oath, dropping the Senate amendment which would have afforded similar exemption for Congressmen. By implication, then, the committee approved of Congressmen taking that oath as a preliminary requirement for assuming their seats.15 From the conference committee, the altered oath bill returned to both Houses of Congress. By July 1, it cleared the last weak opposition hurdles. T h e next day, without comment, Lincoln signed it into law. 16 In his able work on reconstruction, William A. Russ, Jr., described this law as "the backbone of the disfranchising system for the next thirty years." 17 It was all of that. T h e ironclad test oath embraced all persons (except the President and Vice-President) ". . . elected or appointed to any office of honor or profit under the Government of the United States," in the civil, military, and naval departments. For such persons, the law prescribed an oath as a prerequisite for office. T h a t oath, which the individual had to subscribe before he could draw his pay, was in two parts. T h e first part attested to the past loyalty of the affiant. He had to swear that he had not voluntarily borne arms against the Union, in any way aided the rebellion, or yielded voluntary support to hostile forces. In addition, no persons who had sought or held office under a rebel authority could qualify as a federal civil or military officer. T h e latter half of the ironclad test oath contained a pledge of future loyalty. T h e oath was to be filed by the federal organization which employed the affiant. Under the terms of the test oath law, false swearing was equated with perjury, and Congress prescribed the additional penalty of perpetual disqualification from government office for those who took the oath under false pretencas. 18 T h e net was drawing closer. Two weeks after it passed the ironclad test oath, Congress decreed that rebels should be perpetually deprived

24

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OATH

of federal offices.19 No longer was Congress satisfied with the willingness of federal officers to swear to their intent to be loyal in the future. Federal favors were to go to those whose loyalty was affirmed by past purity. When, almost a year later, Congress wrote the new postal law, it specified that all Post Office personnel, including the PostmasterGeneral, take the ironclad test oath. 20 Similarly, when Congress created the office of Comptroller of the Currency in the Treasury Department early in 1863, it required that oath from the new official.21 Why it was necessary for Congress specifically to ordain that new federal officers take an oath which it required from all federal personnel is not clear. It is evident at least that Congress wished to be sure that no loopholes existed; that new officers came under the same test oath requirement. In that spirit, the legislature extended the essence of the test oath. W h e n it amended the Court of Claims act in March 1863, it provided that every claimant or his assigns prove their past fidelity to the Union. T h e Court of Claims was to dismiss those cases in which claimants could not show their continued patriotism. 22 Congress included a similar provision in the Abandoned Property Act, passed in March 1863.23 Before these bills became law, claimants swore to the old civil servants' oath law of August 1861, as did the attorneys who represented t h e m . " By mid-1863, past loyalty was the test. Once more, when the ironclad test oath became law, federal personnel and civilian contractors swore their allegiance to the government." Washington's civil servants soon learned that the new oath was a serious matter. A number of clerks spoke contemptuously of the new law. T h e i r supervisors discharged them. T h e incident provoked an editorial in a Washington newspaper. Entitled, "A Warning against Careless Expression," the editorial cautioned the readers to treat the test oath respectfully. T h e clerks had no complaint, the writer asserted. "Union men who talk 'Secesh,' " he stated, "must not grumble if they have occasion to laugh out of the other side of the mouth if they air their fun before strangers." 26 Congressmen insisted that the executive authorities administer this, and the other required oaths, in order to prevent ". . . great injury and detriment . . . to the pubic service." 27 It was easier said than done. T h e oath requirements were an administrative problem to the executive department throughout the war. Government officials were often lax about the routine requirement of filing their oaths of office. Until they did so, Treasury officials could not audit their accounts for payment. 28 Considerable confusion existed as to which was the proper oath to take. As late as April 1863, some government personnel were still taking the 1861 oath, instead of the ironclad. Here again, the Treasury withheld their salaries until the laggards complied with the

LOVAI.TY

DEI-INK»:

THF.

IRONCLAD

TEST

OATH

25

law. T h i s confusion was compounded, since it existed on high administrative levels. Frederick Seward, Assistant Secretary of State, confessed his confusion concerning proper oaths of office.29 T h e Secretary of the Interior accepted obsolete forms of official oaths in several cases. High officials made written apologies to the employees concerned for the resulting year-long delay in salary payment. 30 But the Interior head usually did insist on the ironclad oath, after it became law. He refused to settle the accounts of more than one thousand persons who had collected census data in 1860 in Southern and border states. Many in the latter area refused to take the test oath of past loyalty. T h e y went unpaid. 11 Some American officials modified the form of that oath to meet their needs. T h e American consul at R o m e employed a native as his secretary. He omitted the clause which required the affiant to swear to his allegiance to the United States, since the secretary was not a citizen. T h e government permitted this modification of the o a t h . "

" I desire," said Lyman T r u m b u l l on the Senate floor, "to call the attention of the President of the Senate, and of the Senate itself, to an Act of Congress approved 2d July, 1862." His words brought a temporary halt to the busy scene in the Senate Chamber. It was March 4, 1863. T h e special session of the Thirty-eighth Congress was meeting for its first day of business. Solomon Foot, President pro tempore of the Senate, was administering the oath of office to the new Senators. It was this that had aroused T r u m b u l l to speak. T h e oath which Foot was utilizing was not the ironclad test oath, but the traditional, prewar, oath of future fidelity.33 T r u m b u l l had been one of the strongest advocates of the ironclad oath. W i t h Sumner, he had warmly supported that law during the Congressional debates on its passage in the spring of 1862. These two loyalty-conscious Senators had resisted the additions of exceptions to the test-oath bill. Among those exceptions, which did not appear in final law, was one which would have exempted Congressmen from the test-oath requirement. Despite their victory in this matter, T r u m b u l l and Sumner were perturbed when Congressmen persisted in swearing to the old oath, and ignored the new ironclad oath of office.34 Trumbull's words reopened a question which the debating Congressmen had not answered in their consideration of the test oath. W h o was subject to that oath as a prerequisite for federal office? By the terms of the test-oath law, all federal civil and military officers, excepting only the President, had to swear to that oath before they commenced their duties. But was a Senator a civil officer? Did a Congressman's possession of a federal office of trust and profit place him within the scope of the test oath?

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These questions embraced issues which transcended the willingness or ability of two-score Senators to take a certain oath of office. For the ironclad test oath required an affiant to swear to his past loyalty—to swear that he had never aided the rebellion in any way. If that oath was to stand as a bar to the admission of nonjurors into Congress, the number of Southerners who could qualify for seats in the national legislature was immediately limited. T h e test oath could identify the Southerners who were to lead the reconstruction of a defeated South. It was obvious that such an oath offered to Congress a means of distinguishing between applicants for its seats. In Sumner's words, "a person who cannot take this oath, retroactive though it may be, must have been a traitor." 3 5 In order to prevent such rebels as Jefferson Davis and Judah P. Benjamin from resuming their vacated Senate seats, Sumner would require the test oath of all Senators. " I t is our duty," he reminded his colleagues, "to guard the loyalty of this Chamber." T h e test oath was an available sentinel. 36 But, on that March day in 1863, when Trumbull called the Senate's attention to the test oath, it was a dormant sentinel. Neither House of Congress had yet applied the test oath to its members. It was to make that oath an effective bar to the entrance of ex-rebels into the Senate that Trumbull spoke. His first attempt was unsuccessful. Foot acknowledged the existence of the test-oath law, but he did nothing about requiring it of Senators. T h e brief exchange of words between Foot and Trumbull on the subject marked the opening of a lengthy debate. 37 Sumner made the next move. On the following day (March 5, 1863) he proposed a new rule, requiring all Senators to take the test oath before assuming their duties. Ably assisted by Trumbull, Sumner won a substantial victory. Foot agreed to administer the oath ". . . to such members [of the Senate] as will voluntarily take it." All the Senators present took the test oath. Sumner was satisfied, and withdrew his resolution. 38 Among the Senators who were absent that day was Delaware's James A. Bayard. A political and philosophical Democrat, Bayard remained obdurate in the matter of the test oath. For by the time the first session of the Thirty-eighth Congress met in December 1863 Bayard was the only Senator who had not sworn to the test oath. Every other Senator, Republican and Democrat, had accepted voluntary subscription to that test of past loyalty. Bayard's recalcitrance angered Sumner. T h e Massachusetts Senator revived his resolution calling for the mandatory subscription of the test oath by all members of the upper House. This released a parliamentary struggle in which every Senator was to participate. For if most Senators were willing to swear voluntarily to the test oath, a vociferous

LOYALTY

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27

minority were unwilling to have such a requirement stand as a mandatory rule. 39 T h e r e can be no doubt that Sumner aimed his resolution at Bayard. T h e latter was the only Senator who had not taken the test oath. Bayard had been a persistent advocate of Democratic sentiments in the Senate, and an opponent of the extension of loyalty testing legislation. For a full month after the renewal of Sumner's resolution, the Senators debated the subject. They concerned themselves primarily with two broad areas of argument. T h e first concerned the constitutionality of the test-oath law. T h e second, and the point about which most of the Senators centered their attention, was the applicability of the test oath to Congressmen. Most of the Senators were in agreement with Sumner that the oath law which they had passed the previous year was constitutional. 40 Fewer of them were willing to agree that a Senator was subject to the test oath. A Republican Senator such as Indiana's Hendricks was willing, "lest my course be misunderstood by some," to take the oath voluntarily. He was not willing to see that oath enforceable by a rule upon all Senators. Hendricks saw in such a regulation a derogation of the rights of his state to send to Washington properly elected Senators. He refused to concede that Congress could add qualifications to the Senator's office other than those which the Constitution prescribed. T o prove his point, Hendricks quoted a passage from Story's Commentaries: It would seem but fair reasoning, . . . that when the Constitution established certain qualifications as necessary for office it meant to exclude all others as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. . . . A power to add new qualifications is certainly equivalent to a power to vary them. 4 1

But if Hendricks had Story, Sumner's supporters could find justification in John Marshall's opinion: T h e powers vested in Congress may certainly be carried into execution without prescribing an oath of office. T h e power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. . . . It may be argued with as much plausibility as other incidental powers have been assailed, that the Convention was not unmindful of this subject. T h e oath which might be exacted—that of fidelity to the Constitution—is prescribed, and no other can be required. Yet he would be charged with insanity who should contend that the legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest.

None of the debating Senators developed these ancillary issues to their fullest extent. T h e scores of closely typed pages of the records of

28

E r a of Tilt: O a t h

Congress which contain their discussions of the test oath increasingly reflected their concern with the two major questions: Was the test oath valid as a law, and most important, did it apply to Congressmen? T h e two chief contenders in this battle were, clearly, Sumner and Bayard. T h e i r arguments presented a representative sampling of the entire debate. After one month of inconclusive discussion, Bayard, on January 19, 1864, submitted his objections to Sumner's resolution. He considered the test oath law itself unconstitutional on several bases. First, it violated the due process clause of the Fifth Amendment. If a duly elected Senator refused to take the oath, his refusal excluded him from his rights to a seat. Bayard termed that oath an obnoxious form of selfaccusation, wherein silence acted as proof of guilt. T h e -Senate, he argued, could not, by Sumner's resolution, hold a nation guilty of treason, and require each applicant for admission to purge himself of complicity in the rebellion. 4 3 Second, the oath impaired the Presidential pardoning power. T h i s was a new consideration. Bayard alleged that the oath removed from the President his power ". . . to grant reprieves and pardons for offences against the United States." 4 4 T h i s shrewd thrust was an appeal for support to the administration Republicans, for it was but a few days since Lincoln had issued his proclamation of amnesty and reconstruction (December 8, 1863). Executive pardon was a basic part of Lincoln's plan. 45 What Southerner, Bayard demanded, with Lincoln's pardon in one hand, and his election credentials from a reconstructed state in the other, could gain admission to the Senate if the test oath stood as a bar? Yet an executive pardon was supposed to place its recipients on the same level as the uncontaminated Unionist, "with the same rights as if the crime had never been committed." How could Lincoln's pardon plan and the test oath coexist? Would not the oath hinder reconstruction? 46 T h e test-oath law violated the Constitution in two other aspects. It was by nature ex post facto, and thus void; it punished a man for a crime he had committed before Congress passed the law. 4 ' And it added an unjustifiable qualification to the Senatorial office. T h e Constitution, Bayard maintained, specified these qualifications—age, residence, and citizenship 48 —and prescribed that Congressmen take an oath to support the Constitution. 49 Bayard acknowledged that the Framers had not specified the form of that oath, and that Congress had the power to specify the wording. But he insisted that Congress was limited in the substance of the oath which it did prescribe. It must be an oath which bound the affiant to support the Constitution; an oath promissory in intent. " T h e Constitution," Bayard maintained, "authorizes an oath appealing to the conscience alone for the future performance of

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ΠΚΠΝΓΙ):

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29

duty. "50 T h u s , the test o a t h created new conditions, wherein the affiant must swear to past events. "It is no longer a question of f o r m , " h e argued; "it is not a promissory oath relating to the present a n d the f u t u r e ; b u t it is an expurgatory test oath, retrospective in its character, a n d covering the events of the affiant's past life." 5 1 T h e greatest evil which Bayard saw in Congress' application of the test oath as a prerequisite for admission, lay in the precedent which it might set. W h a t conditions might not Congress apply against new members? T e m p e r a n c e , monogamy, chastity—all these a d e t e r m i n e d majority m i g h t set u p as requirements for a Congressional seat. 52 T u r n i n g f r o m these issues, Bayard then proceeded to argue t h a t a Senator was not a civil officer, within the m e a n i n g of the Constitution a n d of the test o a t h law. T h u s , whatever the legality of that statute, Congressmen did not come within its scope. For proof, Bayard resorted primarily to an historical precedent; the Blount impeachment trial of 1798-99. Bayard cited Blount's case to show that Congress h a d held Blount not subject to i m p e a c h m e n t , because, as a Senator, he was not a civil officer of the U n i t e d States. 53 Bayard went o n to d r a w substantiation from the language of the Constitution. Nowhere, he showed, does that document apply the word "office" to Congressmen. 5 " 1 Conversely, Bayard was able to point to the Constitutional p r o h i b i t i o n against Congressmen holding federal civil offices d u r i n g their terms as legislators. 55 A Senator, according to Bayard, holds " . . . a station, a trust, [but] not an office within the m e a n i n g of the Constitution." 5 0 It was as m u c h a position u n d e r the authority of the states as it was u n d e r that of the central government. T h e test oath, Bayard warned his fellow Senators, would take f r o m the states the privilege of sending to the Senate such men as they deemed best suited to represent them. W i t h his e x a m i n a t i o n of the Senatorial function, Bayard concluded his a r g u m e n t . H e a d d e d a closing a d m o n i t i o n — t h e first time h e h a d engaged in a n y t h i n g b u t emotionless argument. T h e test oath, he acknowledged, h a d become a symbol of loyalty. H e knew that many persons w o u l d consider his refusal to take that oath as an admission of disloyalty. T r u e loyalty to America, Bayard maintained, involved upholding u n d e r l y i n g Constitutional truths. H e felt deeply that the test oath was antagonistic to the Constitution. "If it be disloyal," h e concluded, "to s u p p o r t the Constitution, . . . then I cheerfully accept the imputation of disloyalty."' 7 A few days a f t e r Bayard's speech, Sumner rose to deliver the last speech on the proposal to apply the test oath as a rule of the Senate. Sumner's speech was briefer and far less concerned with legalisms t h a n was Bayard's. S u m n e r dismissed the allegations of unconstitutionality which Bayard h a d levied against the test oath, r e m i n d i n g the Senate

30

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that it was not the statute which was in question. T h e test oath was law; the Senate had helped make it law, and was merely preparing to enforce the law by adopting his proposed rule. It was a simple question to Sumner, and the extensive debate had been needless. T h e Senators ". . . may well be astonished," he said, "at much that has been intruded." Nor would Sumner consider another aspect of the discussion which he considered irrelevant—the effect of his proposed rule upon reconstruction. 58 Remaining to Sumner, then, was the one point of applicability of the test oath to Senators. T h i s question, too, seemed a simple one to Sumner. Of course, he asserted, a Senator was a civil officer and not a member of the judicial or military branches of the government. Sumner held in his hands the Congressional Blue Book, and raised it high for the assembled Senate to examine. T h a t registry included Congressmen in its listing of federal officers. Sumner then proceeded to examine the constitutions of several states, and showed that they included legislators within the category of civil officers. And what of the Blount case which Bayard had cited? Bayard had alleged that it proved a Senator unimpeachable because he was not a civil officer. Sumner derided this conclusion. " T h e case of Mr. Blount," he contended, "has no application to the present question." 5 9 So far as Sumner was concerned, the Blount case had decided merely that a Senator was not liable to impeachment. 60 Sumner was finished. T h e Senate proceeded to vote upon his resolution requiring all Senators to take the test oath as a prerequisite for office. Sumner won: 28-11.51 Of the eleven objectors to the resolution, eight were border-state Democrats. T w o of the remainder were Wisconsin's Republican Senators, and the last was New York's Democratic Senator. T h e twenty-eight who voted for the resolution were all Republicans. T h e test oath was becoming a symbol of party loyalty, as well as one of national allegiance. 62 T h e next day, Bayard swore to the oath against which he had fought so long. After taking the ironclad oath, he rose to address the Senate, knowing that it was for the last time. Gravely, Bayard resigned his Senate seat. H e would not remain a member of the group which had approved the use of the test oath in a manner Bayard held repugnant to the laws and spirit of the land. His words reviewed the lengthy arguments against the oath. Bayard acknowledged that he alone among the Democratic Senators had felt the test oath of sufficient importance to warrant the course he had chosen. Now a majority of the Senate had approved Sumner's rule; it was a prerequisite for all Senators. Bayard felt it was his duty to take the oath—to obey the majority vote. But he also felt it his privilege and duty to disassociate himself from the body which had passed the law,

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and applied the rule. 63 "Your decision," he told the assembled Senators, "inflicts a vital wound upon free . . . government." Bayard would not remain a Senator, and thus indirectly sanction the propriety of the test-oath law. For Bayard could not doubt that: the precedent now made will be followed, and . . . [he] regarded all test oaths as useless and demoralizing acts of tyranny. . . T h e y are the first weapons young oppression learns to handle; weapons the more odious since, though barbed and poisoned, neither strength or courage is necessary to wield them."

Bayard returned to the Senate in 1867; his fears about the precedent which Sumner's rule might set had been confirmed. 65 For even as Bayard prepared his speech of resignation, Sumner was planning to extend the use of the ironclad oath. On J a n u a r y 25, 1864, he introduced a bill which would make the test oath a requirement for attorneys in all federal courts. T h e bill went to the Senate Judiciary Committee. 6 6 Six months passed before that committee reported the bill back to the Senate. Sumner was unpleasantly surprised to learn that the committee's report was unanimously averse to his proposed bill. T h e i r decision, to Sumner, was "unaccountable." 6 7 Even Lyman T r u m b u l l , member of the committee and friend of loyalty-testing legislation, had cast his vote against the measure. 68 Sumner, to insure reconsideration for his bill early in the next session, secured a resolution carrying over all currcnt business into the forthcoming second session of the Thirty-eighth Congress. 60 T h a t session convened in mid-December 1864. On the twenty-second of that month, Sumner reintroduced his bill, and secured its consideration by the Senate sitting as a Committee of the Whole. T h e members of the Senate's Judiciary Committee who had voted against the lawyers' oath bill in committee disclosed their reasons for doing so. They found nothing objectionable in the existing test oath: government had the right to require loyalty of its employees; the Senate had the right to order its members to swear to that oath. But the committee members were not so sure that Congress should single out one group from the general populace, and subject them to the oath test. If lawyers should take the oath for the safety of the government, why not teachers, why not clergymen, merchants, or doctors? Why not, asked Reverdy Johnson, administer the oath to ". . . any man who pursues any calling?" 7 0 Such opposition was no barrier to loyalty-testing legislation. Opponents of the bill knew this, and had little hope of halting its passage through Congress. Saulsbury of Delaware, who had stoutly supported Bayard's fight against the test oath for Senators, called for the yeas and nays merely to record his negative vote. Perhaps the prevailing attitude in the Senate may be best illustrated in Garret Davis' words. T h e Kentuckian felt a:

32

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very great indifference about this matter. . . . T h i s seems to be the day of imposing oaths. W e have test oaths and special oaths and general oaths connected with office . . . without number. For myself, . . . I would not give a fig for all that could be imposed [by an oath] in connection with the performance of official duties. I think it . . . is bringing into contempt, if not derision, what was intended to be a very sacred and solemn obligation, and that one effect will be to deprive it of all its moral power. . . . I care not whether it passes or not. 7 1 R e v e r d y J o h n s o n did not think the test o a t h for lawyers a necessary m e a s u r e in these last m o n t h s of war. B u t h e was as a p a t h e t i c a b o u t it as was Davis. Said J o h n s o n : If the honorable member [Sumner] seems to think it may in some measure serve to render the condition of the country more safe or less perilous than it would be without this oath being taken by members of the bar, I for one am willing to . . . let the law be passed. I say, "Yea." T w e n t y - s e v e n Senators voted for the attorneys' test-oath b i l l — t h e r e were b u t four negative ballots cast. E i g h t e e n Senators did not b o t h e r to vote. 7 2 T h e r e was n o d e b a t e on t h e bill at all in the H o u s e . As in the Senate, the R e p r e s e n t a t i v e s took for g r a n t e d such loyalty-testing laws. O f t h e ninety-two C o n g r e s s m e n w h o voted on the bill in t h e H o u s e , the heavy m a j o r i t y of sixty-six a p p r o v e d its p a s s a g e / * L i n c o l n signed it on J a n u a r y 24, 1865. 7 4

1

T H E KEY T O FREEDOM To su ear or not to swear, that is the question. Whether 'tis nobler in a man to suffer Imprisonment, exile and poverty, Or take the oath amidst a sea of troubles, And by submission end them> To swear, to lie, Once more, and, b\ a lie, to sa\ we end Starvation, nakedness, and all the ills That Rebels are heir to—'tis a perjury Devoutly to be wished. To swear—to lie; To lie!—perchance a change; aye, there's the rub, For in that change the angry rebels may come, When from these lands the Federals are driven out, Must give us pause; there's the respect That makes a man of honor hesitate. Hut who would bear at the dead hour of night To be roused from his sleep,—dragged out of bed— To be locked up in jail—to hold his tongue— Before a mock tribunal to be tried, And then condemned for deeds he knew not of, When he himself these evils might avoid By perjury? Who would detectives bear— To look about before he opes his mouth, But that the dread of bayonets and chains— The provost-marshal, from whose iron grip No victim e'er escapes, puzzles the will, And makes us swallow every oath that comes, Than fly to evils that we dread still more? Thus, love of ease makes patriots of us all! And thus our sympathies are sicklied o'er With confiscation, banishment and death! With this regard, we doff our principles, And swallow Abe, the S'igger, and the Oath! —NED

CRACKER*

A b r a h a m L i n c o l n was troubled. H e regretted the harsh necessity o f civ.l w a r w h i c h h a d i m p e l l e d him to suspend t h e privilege of t h e w r i t of habeas corpus in l a r g e areas of the N o r t h in A p r i l 1861. Seward's agents i m p r i s o n e d N o r t h e r n citizens on what was often the merest suspirion o f disloyalty, o f t e n w i t h o u t the formality o f levying charges. 1 I t • T h i s parody on H a m l e t ' s soliloquy api>ears in a book by a Civil W a r itolitical prisoner; see J a m s J . W i l l i a m s o n , Prison Life in the Old Capital ( W e s t O r a n g e , N. J . , 1 9 1 1 ) , p. 62 n. H e r e afte· cited a s Williamson, Prison Life.

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was part of the time of testing, part of the wartime scene in which the Potter C o m m i t t e e o p e r a t e d and Congress legislated loyalty into the statute books. R e d e e m i n g features existed in the mass imprisonment of civilians. Administration officials treated political prisoners with reasonable humaneness. Seward was a b l e to investigate individual cases a n d make allowances for m e r e indiscretions. An inexperienced federal attorney a t P h i l a d e l p h i a was implicated in forwarding a food parcel to Jefferson Davis after t h e o u t b r e a k of war. I t seemed certain that his impriso n m e n t would be lengthy; that it would be followed by a treason trial. B u t Bates a n d Seward carefully e x a m i n e d his case, concluded that the youthful lawyer h a d been duped, and ordered his release a n d restoration to his g o v e r n m e n t office. 2 Most allegedly disloyal persons could not claim such personal attention from busy C a b i n e t officers. T h e y had another, simpler, means of ending their captivity. T h e oath of allegiance to the U n i o n was the key to freedom. I n L i n c o l n ' s words, a prisoner " . . . could, at the time of his arrest . . . at any time since, and can now, be released by taking a full o a t h of allegiance to the U n i t e d States." I t was u p to each prisoner to decide; " h e makes his own choice," L i n c o l n wrote. 3 I n F e b r u a r y 1862, L i n c o l n transferred the responsibility for internal security from the State to the W a r D e p a r t m e n t . U n d e r either authority the civilian prisoner who subscribed a loyalty o a t h achieved freedom. W a h i n g t o n ' s O l d C a p i t o l became one of the many prisons for alleged civilian disloyalists. H e r e civilians languished unless they took the oath, or as sometimes occurred, executive orders released them without e x p l a n a t i o n . Usually the prisoner who refused the oath r e m a i n e d imprisoned. 4 B u t when a civilian prisoner was willing to take the o a t h of future loyalty to the U n i o n , his release was usually rapid. T h i s mitigated cases of personal hardship for many. O n e K e n t u c k i a n offered to take any o a t h offered h i m . His arrest had occurred without warning, and his large family were defenseless in a dangerous border area. W i t h i n two weeks after he offered to take the o a t h , the m a n was free. 5 N o t u n t i l M a r c h 1863 did Congress give statutory sanction to the executive suspension of the privilege of the writ of habeas corpus. O n e section of the controversial law provided that " n o person shall be discharged by virtue of this act u n t i l he or she have taken an oath of allegiance to the government."® B u t at no time did Congress or the President specify what oath was proper for political prisoners. As a result of this lack of definition the forms of oaths varied widely at various time and places. G o v e r n m e n t officials drew u p oaths to meet the needs of the moment. 7 I n the first m o n t h s of the war the simple prewar oath of office was ready at h a n d . W h e n the August 1861 o a t h for civil servants became law, Seward

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ordered the State Department to utilize it for civilian prisoners.® After Lincoln issued his pardon and reconstruction proclamation (December 8, 1863) the oath contained in that policy statement become the standard Northern loyalty test for political prisoners.' It was only in rare instances that U n i o n officers applied the ironclad test oath to other than government personnel in the North or to civilians in the South.'" Whatever the form of the oath, it served in the North and South to effect the release of civilian prisoners from federal custody. Numerically, by far the widest application of loyalty tests took place in the South. As federal forces advanced, their commanders found loyalty oaths a ready weapon with which to cow civilian populations. T h u s , when Pope moved into Virginia in mid-1862, he ordered all civilians within his lines to swear to their loyalty to the U n i o n or face expulsion from their homes. In Virginia jails, the residents awaited the Union oath. Most chose to swear, but a minority remained recalcitrant, believing that Pope would not carry out his threat. In this instance the recusants were correct, but it was not always so. 11 Men as prominent as Salmon P. Chase questioned the wisdom of exacting " . . . an oath of allegiance [from Southern civilians] as a condition to [permitting them to] remain within our lines. It is so easily taken and broken." Chase preferred to make federal protection the measure for federal allegiance. 1 2 B u t while Chase and other Northern patriots advocated judicious use of loyalty oaths to Southern civilians,' 3 Union military commanders were almost completely free to adopt whatever policy they chose. Loyalty-testing by means of oaths continued on an ever increasing scale as U n i o n forces penetrated the South. It was never an integrated system. Its application depended on the time, location, and the predilections of officials. Pope demanded extensive oath-taking. Under his orders, federal officers rode the steamboats from Washington and Baltimore to U n i o n ports in Virginia, and applied test oaths to civilian passengers. Pope imprisoned those who refused the oaths, while ". . . ardent p a t r i o t s . . . celebratefd] the occasion with three cheers." 1 4 Buell, commanding in Mississippi in 1862, adopted a different course. He did not require all resident civilians to take the oath, and was satisfied if deserters and discharged Confederate soldiers swore to their future fidelity to the Union. 1 5 B u t civil war made a veritable noman's-land of some counties of Mississippi, and Union authorities agreed that every traveler, soldier or civilian, must be sworn to his allegiance. 1 6 McClellan maintained a comparatively liberal attitude in applying loyalty tests to Southern civilians. In his famed letter to Lincoln from Harrison's Bar, the general wrote, " . . . oaths not required by enact-

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ments constitutionally made should neither be demanded or received." 17 But if McClellan proposed, his subordinates disposed. They exacted oaths on a wholesale basis from Southern civilians. Jefferson Davis protested against this practice, pointing to the incarceration of ". . . civil officers, peaceful citizens, and gentle women . . . for opinion's sake." 1 8 Lee wrote to McClellan, deploring the arrest and imprisonment of those who refused to take the oath. His government, stated the Confederate officer, ". . . refused to admit the right of the United States to arrest our citizens and extort from them their parole." Lee threattened retaliation if Union authorities continued the oath-testing practice. 19 McClellan confessed his ignorance of the situation. He left it to Halleck, as Union General-in-Chief, to reply to Lee. Halleck agreed with Lee that it was undesirable to extort oaths from civilians. But he insisted that administering oaths, without duress, in order to maintain order was permissible. "No unseemly threats of retaliation," wrote Halleck, "will deter this government." He warned Lee that the Southerner who took the oath and subsequently violated it faced dire consequences. 20 Confederate officials excused their citizens who had sworn allegiance to the Union. T h e Southern government refused to admit that a Confederate soldier or civilian might divorce himself of his obligations to the Confederacy by a Union oath. John Letcher, rebel Governor of Virginia, amnestied all citizens of that state who professed that their oaths of loyalty to the Union had been extorted under duress.21 It was a fruitless controversy, laden with legalisms but divorced from the realms of the needs of Union officers who thought loyalty oaths a fine means of keeping Southern civilians in line. Marines from the U.S.S. Hatteras occupied Cedar Keys, Florida, early in 1862, and their officers gave the oath to all residents who wished to be classified as Unionists. "No one . . . was found there," writes the historian of Civil War Florida, "who was not professedly a Unionist." 2 2 All adult males in Arizona Territory faced General Carleton's order requiring an oath of loyalty to the Union. Banishment from the area followed refusal to take the oath, and Carleton carried out the threat. 23 In Kentucky, any one who aided the Confederacy had to report to federal military posts and swear future loyalty to the Union—the alternative was imprisonment. Northern officers in the divided border state jailed many nonjurors, and deported many more into Southern lines. A Kentuckian could hardly pass a day without taking one or more oaths; in order to buy food at a commercial store the Union oath was required; only those with oath receipts could secure the passes needed for traveling and sending mail. 24 Here, as in other places, military authorities altered the form of the oaths as they saw fit. During

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t h e first two years of the war K e n t u c k i a n s usually f o u n d themselves faced with the civil servants' oath of August 1861. O f t e n , U n i o n officers added an e x t r a clause: " D e a t h or o t h e r p u n i s h m e n t by the j u d g m e n t of a Military C o m m i s s i o n will be the penalty for the violation of this . . . solemn o a t h . " - 5 I t required L i n c o l n ' s direct intercession before U n i o n officers w o u l d permit his K e n t u c k y sister-in-law to begin her t r i p to W a s h i n g t o n without subscribing the oath.'·'" T h e most extensive applications of loyalty tests occurred in Missouri, L o u i s i a n a , a n d T e n n e s s e e . Unionists in Missouri preserved their state for the U n i o n cause, b u t bitter partisanship m a r k e d Missouri politics d u r i n g the war a n d after. A c o n s t i t u t i o n a l convention of 1862 specified an oath of past loyalty to state and nation for all officeholders, for Unionists feared that " . . . power in the hands of the disloyal m i g h t be employed to d i s t u r b . " -'·' W h e n H a l l e c k assumed charge of federal forces in Missouri, he decided to use that state-made oath as the standa r d of loyalty. H e ordered that n o n j u r o r s lose the privileges of citizenship, be b a r r e d from voting, practicing m e d i c i n e or law, teaching in p u b l i c or private schools, acting as j u r o r s or witnesses, o r traveling on p u b l i c roads. T h e v o t i n g provisions kept m a n y from Missouri's polls d u r i n g the war years. 2 " Even some Missourians serving in the U n i o n army could not take that oath, which was r e q u i r e d for absentee voting. H a l l e c k arrested all state officials who refused the o a t h ; these included mayors, officials of c h a m b e r s of commerce, library trustees, a n d railroad directors. 2 9 Unionists of St. L o u i s gave cordial support to H a l l e c k ' s loyalty regulations. P r o - U n i o n newspapers praised him in editorials, which gleefully pointed to the long lists of the names of citizens who had taken the o a t h . M i n i s t e r s made sermons a p p r o v i n g loyalty oaths; o n e ardent clergyman blessed " . . . the call on me for my oath of allegiance. Cordially a n d gratefully do I give this adhesion to my c o u n t r y . " 3 0 Some civilians pledged themselves to inculcate U n i o n sentiments in their families, with special a t t e n t i o n to the children. 3 1 A particularly patriotic M i s s o u r i a n m a d e the front pages of W a s h i n g t o n newspapers. T h i s a n o n y m o u s U n i o n i s t , " h a v i n g doubts as to his wife's and daughter's U n i o n principles, went to St. Joseph [Missouri], and proc u r i n g a copy of the oath . . . c o m p e l l e d his erring better (?) h a l f to swear allegiance to the U n i t e d S t a t e s . " 3 2 B u t l e r ' s famed a d m i n i s t r a t i o n of c a p t u r e d New O r l e a n s was m a r k e d by extensive loyalty testing; his first p r o c l a m a t i o n r e q u i r e d all residents to renew their o a t h to the U n i t e d States. N o n j u r o r s , he ordered, " . . . would be treated as rebels a n d e n e m i e s . " T h e L o u i s i a n a n who violated his o a t h faced the death penalty. T h e effects o f B u t l e r ' s order that all civic officials take the oath were m o m e n t o u s — t h e City Council could not h o l d a q u o r u m ; the treasurer, surveyor, a n d controller

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resigned rather than take the loyalty oath. Butler had to suspend the legislative functions of the city when every alderman refused to swear. H e replaced the vacant civil offices with military boards." T h e s e stern measures were effective. By August 1862, Butler heard the agreeable news that 11,723 civilians in New Orleans had taken the oath. T h i s was no mean achievement, since the pressure of the city's social leaders worked against those who signed the loyalty test. J a m e s Parton described how this social influence worked against oath takers: Ladies refused to receive gentlemen who were known to have taken it. Gentlemen were notified to leave their boarding houses who had thus avowed their attachment to the Union. Books were kept, by noted secessionists, in which the names of such were recorded for future vengeance. Men who were accused of having taken the oath thought it was necessary, in some instances, to resent the charge as a calumny. Others who had recently taken it, boasted that they had done so only to secure the temporary advantages attached to the act . . . as no faith was to be kept with the Yankees. 3 4

B u t even this pressure, however diligently applied, could not withstand Butler. Before he left New Orleans more than 60,000 Louisianans had taken the oath, spurred by the penalties for nonjurors and the advantages which oath takers derived. 35 N. P. Banks succeeded Butler in command of the Delta City. Banks maintained and expanded the oath requirements. In 1863 he enrolled 23,000 white male residents for the Union draft. Each enrollee could vote for delegates to a constitutional convention if he took two loyalty oaths—Congress' ironclad oath and Lincoln's amnesty oath. 3 6 T h e Louisiana oath requirements gave rise to international incidents. In J u n e 1862, Butler had written a special loyalty oath by which terms all aliens "claiming protection or favor" from the United States must swear to do nothing to aid the rebellion, or ". . . any of the enemies of the United States." 3 1 Butler applied this oath indiscriminately to foreign diplomatic personnel and to ordinary aliens. Any alien who desired to travel, sue, or engage in commerce had to take the oath. By August 1862, more than 2,500 aliens had sworn. 38 Consuls of seven European nations joined in a complaint to Seward concerning Butler's oaths. T h e General tried to justify his order. "All the consuls," Butler wrote Seward, "have aided the rebellion by every means." 3 9 B u t the Secretary of State was in no mood to antagonize the major foreign powers because of loyalty oaths in New Orleans. T h e imbroglio which occurred in R o m e because of similar tests was still unsettled. A Washington friend wrote Butler " . . . that Seward is quite timid about the whole matter touching the Consuls . . . he says he does not think you can make them . . . take an o a t h . " 4 0 Seward convinced Lincoln that Butler's exactions of loyalty oaths from aliens was

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unwise. W i t h the President's approval Seward drafted an executive order restricting the practice, "for the purpose of preserving harmony with friendly powers." 4 1 Stanton ordered military officers to comply with the directive and impose no similar oaths in the future. "Aliens cannot be required to take an oath of allegiance to this Government, because it conflicts with the duty they owe to their own sovereigns." 4 2 Washington newspapers commented on the very general approval which the order evoked. 43 As in so many other aspects of the loyalty-testing program, inconsistency marked the government's attitude toward aliens and loyalty oaths. For though Seward ordered that Butler end his practice of requiring test oaths from aliens in 1862, he reversed his position in 1863. T h e British government protested because two of its subjects swore to American loyalty oaths under duress. T h i s time Seward did not seek to revoke the oath test. H e approved the action and termed the oath which the Englishmen had taken " . . . a pledge against their aiding the insurgents," instead of a loyalty oath. Considered in this light, Seward saw no infringement of neutral rights. 44 Soon after this incident, Francis Lieber issued his famous codification of the laws of war. I n these rules for the conduct of American military forces Lieber approved the application of loyalty oaths to aliens. 45 B u t officials altered these rules as the situation demanded. Stanton, in mid-1863, ordered the release of alien women and children from federal detention in Virginia and refused to permit the local military commander to require Union loyalty oaths from these aliens. 48 Even when the government admitted that it exacted oaths from aliens without right, it held that the obligation of the oath remained in force. A British subject took a loyalty oath to gain release from federal detention. After his release, he appealed to Lincoln for absolution from the obligations of the oath. T h e Judge-Advocate General ruled that even Lincoln could not do this. " T h e Government has no authority to declare the oath inoperative and void, as to release the party from any obligations it may have imposed." 4 7 Andrew Johnson deserves a place in this account of the use of loyalty tests in the South. As Tennessee's military governor, Johnson worked closely with the local military commander, Rosecrans, in administering loyalty tests. W h e n Johnson assumed office in April 1862, he vacated all of the municipal offices of Nashville because the incumbents refused to take the oath of allegiance. Nashville's schoolteachers faced the same test, as did the voters of the city. From all Nashville's population, only seven hundred qualified to cast ballots in 1862. 48 Johnson's administration in Tennessee maintained a policy of drawing a ". . . line between its friends and its enemies, and [of] giv[ing] protection where it finds allegiance." 4 9 H e appointed special commis-

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sioners to Rosecrans' army to administer loyalty oaths to civilians in occupied territory. T h e Union general imprisoned those who refused to swear, and denied protection to their families. Johnson and Rosecrans agreed to send nonjurors into Confederate lines, and to treat them as spies if they returned. 50 They agreed, too, to exclude from pulpits ministers who refused the oath, and from church corporations those officials who would not swear. Lincoln balked at these requirements, writing to Rosecrans: I somewhat dread the effect of your order. I have found that men who have not even been suspected of disloyalty are very averse to taking an oath of any sort as a condition to exercising an ordinary right of citizenship. T h e point will probably be made, that while men may, without an oath, assemble in a noisy political meeting, they must take the oath, to assemble in a religious meeting. 5 1

Lincoln was right. Tennesseans of unimpeachable Unionism objected because they had to take the same oaths which secessionists subscribed. They demanded a separate oath to distinguish them from the prorebel element. Johnson sought Lincoln's advice. T h e President thought there was no cause for complaint here, so long as the authorities exacted the oaths for important objects. "Loyal as well as disloyal men should take the oath," Lincoln stated, "because it does not hurt them, clears all questions as to the right to vote, and swells the aggregate number of those who take it, which is an important object." 52 Rosecrans, too, administered oaths to aliens, and went even further than had Butler. If an alien refused the oath, Rosecrans demanded $5,000 as a bond for good behavior. He ordered Union officials to expel from their lines aliens who refused the oath and bond. After the French Minister lodged a complaint with Seward, Lincoln ordered Rosecrans to rescind this requirement. "Such an order is deemed unnecessarily rigorous," wrote Halleck at Lincoln's orders. Union officers in Tennessee were to leave in peace aliens who gave no overt aid to the Confederacy. 53 Lincoln's intercessions with the loyalty-testing programs of his military officers usually decreased the severity of the regulations. In Delaware, as the 1863 elections drew near, General Schenck ordered the use of a loyalty oath as a prerequisite for any voter challenged for disloyalty. Lincoln revoked Schenck's order, not because of the loyalty test, but because of the military interference in civil proceedings.54 However, Lincoln had little time for alleviating excesses of loyaltytesting. T h e generals and Union governors had almost complete freedom in their jurisdictions to apply tests of Unionism. Lincoln made no objection to Governor Pierpoint's extensive ap-

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plication of loyalty oaths in the fledgling Union government of Virginia. Pierpoint visited New York in 1863 and in a large public meeting boasted of his loyalty regulations. "I intend," he said, "to make every man of Virginia, bearing office, swear to support the United States." Pierpoint's definition of "office" was almost all-inclusive. He prescribed the federal civil servants' oath of August 1861 for merchants, tavern keepers, municipal officers, ministers, bank officials, clerks and cashiers, doctors, lawyers, teachers, and all licensed citizens, as well as for loyal Virginia's state officers. He finished his speech with an admonition to the New Yorkers: "If you had a little of that kind of thing, it would not hurt you." 5 5 In nearby West Virginia, Union military officials maintained a standing order requiring all citizens to take the oath or go to prison. T h a t order, recorded one officer, ". . . has been found very salutary in its effects on both male and female rebel sympathizers." T h e federal officials equated refusal to take the oath as prima facie evidence of disloyalty, and permitted no exceptions from the oath requirement. 58 When Butler moved his command from Louisiana to Virginia and North Carolina, he again resorted to large scale application of loyalty oaths. Amusingly, it was Pierpoint who complained most vociferously of Butler's loyalty oaths. 57 All during the war, the oath of loyalty was the key to freedom for millions of Southern civilians within the Union lines. T o the Southerner, it meant food, mail, and peace. It meant liberty, and pardon for rebellion. After Lincoln's proclamation of December 1863, it meant acquiescence in the termination of slavery. 58 For other Southerners, the loyalty oath had still other meanings. Congress and the President agreed that only loyal Southerners should engage in commerce; this meant, generally, those who took loyalty oaths. T h e Treasury Department ran a licensing system to control the increasing commerce which developed as Union armies advanced into the South. T o encourage defections from Confederate allegiance, Union officers sought to bind the economic interests of Southerners to Union victory. A Southerner who brought his products to federal lines received twenty-five per cent of their value immediately, if he took the oath of loyalty. T h e balance was accounted for by a receipt, payable after the war on proof of continued loyalty. But the system failed. T h e loyalty tests failed to restrict profits and materials to loyal persons. And the rift in the blockade caused by opening trade to "loyal" Southerners permitted a steady, if small, flow of supplies into the beleaguered South. 50 All branches of the Treasury Department in occupied areas demanded loyalty oaths of Southerners who sought to work within federal trade regulations. Traders and clerks had to take the oath or face

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confiscation of their stocks. Compliance was swift. 80 T h e Treasury officials, as civil servants, took the ironclad test oath. Usually these agents had military personnel to do the clerical work, so they had little difficulty in securing a staff able to take oaths of past loyalty. 61 T h e Treasury men joined with army provost marshals to insure that Southerners abided by their oaths. T h e y maintained communication with paid informers who exposed oath violators. Those who deviated from the terms of their loyalty oath lost trading privileges and faced swift military justice. 6 2 W h e n Johnson opened trade with the defeated South, he insisted on similar tests: "Proof of loyalty must be the taking or subscribing the . . . oath [of loyalty]." 6 3 Tests of loyalty faced the Southerner who desired to occupy abandoned lands. In the G u l f area, the tenant who took the Union oath could cultivate assigned lands without rental. If the legal owner refused the oath the land went to one more willing to swear allegiance. In the New Orleans area alone, more than five thousand Southerners filed these "Plantation Oaths." And thousands of freed Negroes took special loyalty oaths as part of a controlled-travel system which Union officers put into operation. 0 4 Before the T h i r t e e n t h Amendment became part of the Constitution, loyal owners could secure federal cooperation in recapturing runaway slaves. And in Lincoln's eyes, the Southerner who took the loyalty oath to the Union was loyal. Despite the effects of the wartime emancipation measures of Congress and the President, many Southerners who took the oath were able to reclaim their bondsmen." T h i s was an abomination to many Northerners. " A more ridiculous farce was never played," wrote one of T r u m b u l l ' s correspondents, "than permitting slaveholders to keep their human property on taking the oath of allegiance." 6 8 Newspapermen recorded how Southerners came into Union lines on the Peninsula, took the oath, and went off with their Negroes. 67 David W i l m o t and Ben Wade tried to have Congress require that claimants for alleged fugitive slaves take the ironclad test oath, but their bill never left committee. 6 0 Abolitionists and Negrophiles soon discerned the weakness in Lincoln's Emancipation Proclamation which permitted "loyal" slaveowners to regain their bondsmen by taking an oath. From Ireland came this condemnation: T h e n came the famous [emancipation] ordinance, which enacted that the slaves of disloyal owners should be made free. T h e slaves of loyal owners, however, were to remain slaves! W e have thus a formal law of the Federal States for bartering away the liberty of the slave to purchase a master's confession of loyalty to the Northern Cabinet. Every man who takes what is called the oath of allegiance is deemed loyal. T h e process is neither tedious nor difficult, consequently, a slave owner, desirious of retaining possession of his slaves

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in the proximity of the U n i o n armies, has but to take the oath and he decides the question of liberty or slavery. 08

Some Southerners saw immediate advantage in the situation. They encouraged their neighbors to take Lincoln's oath to keep control of their slaves. Northern Negroes were bitter about the power which oath-taking placed in the hands of white Southerners. "A mere amnesty oath," a Negro speaker protested, "cannot attest to the fixed determination of unfeeling hearts." 7 0 T o many in the North the loyalty oath seemed a plaything of the "loyal" slaveowners, men who allegedly took the oaths merely to save their property. T h e greatest enemy of Negro advancement in the South, one writer argued, was the ". . . proslavary professed Unionist skulking behind the oath." 71 No, the loyalty oath was not the key to freedom for the Negro whose master was willing to subscribe to Union oaths. T h e war ended before the Thirteenth Amendment placed all Negroes in the same free status. However, within Lincoln's view of war aims, the use of the oath as the prerequisite for so many privileges is reasonable. T h e oath was a weapon; Lincoln used it to undermine the Southerner's will to fight. It was a weapon which Democrats attacked in the election campaigns of 1862 and 18G4, and one which Lincoln's party vigorously defended. And as a weapon it was successful.·"' T h e oaths which Lincoln and the executive officials prescribed were statements of future fidelity. With the exception of religious minorities such as Quakers, the majority of Southerners could subscribe to such tests. Generally, the only Southerners who had to take the Congressional ironclad oath were the relatively small number who sought employment with federal agencies. Union officers were sometimes careless of regulations and employed men whose recent rebel past prevented them from taking an oath of past loyalty. By June 1863, the War Department had specifically to prohibit the practice of hiring Southerners whose inability to take the test oath created administrative c o n f u s i o n . T h e physical problem of maintaining stocks of blank oaths devolved upon the provost marshals of each area. These officials often found themselves without the necessary amounts of oath forms. They resorted to local printers, who created some interesting variations on the language which Congress or Cabinet officers had ordained. Most common, perhaps, when a provost marshal ran out of oaths, was his recourse to the ancient practice of borrowing from neighboring commands. 14 For one more large class of Southerners, the Union loyalty oath was the key to freedom. These were the prisoners of war. For thousands of such prisoners, North and South, confinement ceased only when the war ended. But for substantial numbers Northern policy offered

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respite, exchange, a n d peace. T h e p r o b l e m of the d i s p o s i t i o n of S o u t h e r n military prisoners deeply troubled the h u m a n e L i n c o l n . H e f o u n d a partial answer in the oath of allegiance, which served the U n i o n as a g u i d e with which to j u d g e its course with rebel prisoners. A s early as A u g u s t 1861, c a p t u r e d Southerners sought L i n c o l n ' s pard o n a n d offered to swear to their f u t u r e loyalty to the U n i o n . J B e f o r e the prisoner-exchange system deteriorated, the rebel desiring e x c h a n g e h a d to swear to his f u t u r e neutrality. But, as federal forces p e n e t r a t e d ever deeper into the South, many prisoners f o u n d that their h o m e s were within U n i o n lines. T h e s e m e n d i d not wish e x c h a n g e ; they desired to go home. Others preferred to remain in N o r t h e r n prisons rather than go South. For both, the subscription of the U n i o n loyalty o a t h permitted the realization of their desires. For a smaller n u m b e r of prisoners, the oath permitted them to enlist in U n i o n service. 7 6 As the n u m b e r of p a r o l e d prisoners increased, U n i o n officials became concerned over the possibility of the presence of spies a n d bushwhackers in the North. T h e y set u p screening processes to s u p p l e m e n t p a r o l e and written oaths. In N o v e m b e r 1862, Stanton r e q u i r e d that his a p p r o v a l be given before more prisoners h a d the o p p o r t u n i t y to take the o a t h a n d gain release. 7 7 B u t the general policy r e m a i n e d to send no prisoner South against his will. N o r t h e r n officials correctly f e a r e d that the Confederacy would immediately reconscript these m e n into rebel military service. C o n f e d e r a t e regulations held that " n o o a t h of allegiance to the U n i t e d States . . . will be regarded as e x e m p t i o n f r o m [Confederate military] service." 7 8 By p e r m i t t i n g c a p t u r e d rebels to rem a i n in the N o r t h after meeting loyalty-oath conditions, the U n i o n saved itself the unpleasant prospect of fighting the same m e n again. Indeed, some Confederates who h a d sworn loyalty to the N o r t h to gain freedom from U n i o n prisons d i d again take u p arms against the federal forces. T h e oath proved no barrier to those whose S o u t h e r n patriotism seemed a p a r a m o u n t obligation. Northerners reserved special antipathy for oath breakers. Patriots criticized the administration's policy of releasing prisoners who took the oath. " W i t n e s s , " critically d e m a n d e d Frederick Douglass, " t h e release of rebel prisoners simply u p o n their word of honor, which word was already d i s h o n o r e d by the blackest t r e a s o n . " 7 a Confederates were all oath breakers, w a r n e d other Northern spokesmen. W a s not the U n i o n oath the ". . . sport of every guerrilla in Virginia and Kentucky and M i s s o u r i ? " 8 0 Despite these protests, L i n c o l n and the W a r D e p a r t m e n t m a i n t a i n e d their course, but U n i o n officials specified the severest penalties for o a t h violators. When federal officers said that death awaited the m a n who took u p arms after swearing to be loyal to the U n i o n , they m e a n t it. 81 O a t h violation was especially c o m m o n in the border areas, where irregular troops wrote some of the bloodiest chapters of the war's his-

46

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OATH

tory. W h e n Union forces captured guerrillas who carried certificates of past loyalty oaths to the U n i o n , the death penalty was almost automatic. At the very least, the Confederate oath breaker could not expect a second chance at release. Patriotic informers took special pleasure in exposing those who violated paroles. 8 2 Even the long, merciful hand of Lincoln could not reach the rebel who had broken his oath. "Such persons," ruled the army's JudgeAdvocate General, "are not to be treated as prisoners of war, but should be brought to trial at once by military commissions." Lincoln could not absolve an oath breaker from the obligation he had incurred by swearing. 83 It was a special duty of area commanders and provost marshals to uncover violators and bring them to trial. In Missouri, the army confiscated the property of all who broke the terms of their paroles, in addition to the penalties military tribunals levied. 84 Lincoln made desertion more attractive for many Confederates when he issued his amnesty proclamation (December 8, 1863). T h e oath Lincoln specified became the standard prisoner's oath. It was a simple affirmation of future loyalty and obedience to the emancipation edicts. By taking the oath the rebel soldier-prisoner assured himself that his property rights, except for slaves, were safe from Union confiscation. H e assured himself release from prison and freedom in the North or in the South if his home was within the U n i o n lines. 85 It was an effective appeal, and Southern patriots recognized the threat it held for their cause. "Choose the dungeon and scaffold a thousand times," thundered one Southern minister, "rather than transmit the taint of this leprosy to your offspring." 8 6 And the memory of the oath takers lingered in Southern minds, and they were remembered as " t h e meanest of the m e a n . " 8 7 Confederate officer-prisoners were in a separate category from their enlisted comrades. As late as February 1863, U n i o n authorities had no general policy for captured rebel officers. Lincoln's clemency intervened when army orders prevented specific Confederate officers from taking the oath and gaining their freedom. Most officers, at least of captain's rank and higher, were handled on an individual basis. But the results were similar; the oath meant release. 88 As the war neared its end, Southerners in crowded Northern prison camps debated their future. For some, the path was clearly marked. T h e y wanted to " . . . take the oath and go home, now that the war has ended." 8 9 Dispirited, uncaring, not knowing to what they swore, captured rebels pledged allegiance and hoped for a quick end of captivity.'"' T h e y felt, if they thought about it at all, that they abandoned no point of honor in taking the U n i o n oath, for their cause was gone. T h e y made their choice between remaining in the North

THE

K E Y TO FREEDOM

47

and returning to their homes—and the camps emptied as the guns quieted. 91 For many others, the choice was less simple. In one camp, a despondent rebel recalled the soul searching that centered on the oath. W h e n could the ardent Southerner consider the Confederacy truly defeated, and deem it proper to renew his allegiance to the Union he had fought? "One day there would be a meeting of the Virginians to debate the matter," he recorded, "the next of North Carolinians, and so on." The arguments were heated, and inconclusive. Events decided for them. T h e arguments ended as ". . . one prop after another fell from under the Confederacy . . . until all were at last ready to admit that the end had come." 92 The end had come. Loyalty tests did not cease, however, when peace came at Appomattox. They were to be a prominent feature of postwar America.

A PROBLEM O F PEACE: POSTWAR A D M I N I S T R A T I O N AND THE TEST OATH

S

A man who acknowledges allegiance to the government, and who swears to support the Constitution, must necessarily be loyal. A man cannot take the oath in good faith unless he is loyal—ANDREW JOHNSON*

V V L T H

THE

DAWN

OF

PEACE

WILL

COME

A

MIGHTY

WORK

OF

RECON-

struction . . .," predicted a W a s h i n g t o n newspaper. 1 T h e rebel forces were surrendering. In eleven warswept states, the federal government had to place an entire administrative apparatus into o p e r a t i o n ; the courts, the post offices, the customhouses had to be staffed and serviced. T h e physical effects of four years of war were in themselves formidable obstacles to the rapid resumption of these services. B e f o r e the Post Office could send mail through Virginia, federal officers had to survey the entire railroad system.-' B u t political reconstruction added its burden to physical reconstruction; the resumption of federal functions in the South became an item in the larger problem of the political struggle between President and Congress. Administrative efficiency gave way to partisan politics. W i t h i n this context of political strife, two types of loyalty oaths came to symbolize the split between J o h n son and the Radical R e p u b l i c a n s which was to culminate in the 1868 impeachment of the President. T o J o h n s o n , as to L i n c o l n , successful reconstruction m e a n t the rapid restoration of the Southern states as functioning political entities in the federal system. B o t h Presidents had resorted to the war and pardoning powers of their office to accomplish this purpose. I n two proclamations they outlined the executive formula; L i n c o l n ' s of December 8, 1863, and J o h n s o n ' s of May 29, 1865, outlined the Presidential program of reconstruction. 3 B o t h specified an oath of loyalty for those Southerners not specifically excluded from the amnesty provisions. I n b o t h , the oaths were promises of future fidelity to the U n i o n . T h u s , L i n c o l n had said, " O n principle, I dislike an oath which re* Spccch,

February

22, 1S66

(n.p.,

n.d.).

A

PROBLEM OF

PEACE

49

quires a man to swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of repentance. I think it enough if a man does no wrong h e r e a f t e r . " 4 Lincoln had placed great stress on the amnesty oath. It was a powerful war weapon, for it encouraged internal defection in the Confederacy. 5 He hoped to make it an equally effective weapon for peace and reconstruction." Lincoln sent J o h n Hay to ne\vly conquered Florida in 1864 to obtain signatures for the executive amnesty oath. 7 T o his military governors in the South, Lincoln stressed the desirability of " . . . swelling] the aggregate number of those who take it, which is an important o b j e c t . " 8 For the oath taker, to Lincoln, was cleansed of rebellion, and qualified to act as a citizen in a reunited nation. In that spirit, the abortive Sherman-Johnston Convention (April 18, 1865) promised executive recognition " . . . of the several State governments, on their officers and Legislatures taking the oaths prescribed." 9 In that spirit, Meade suggested that Lee seek a Presidental pardon, for " T h e best evidence of an intention to obey the Federal law . . . would be the o a t h . " 1 0 T o the Radical Republicans, such a policy was fraught with danger to the nation and to the political structure which they controlled. In any case, Presidential leadership in the reconstruction process was not to their liking. T h e Wade-Davis Bill (July 2, 1864) set the guideposts for Congressional reconstruction. T h i s bill proscribed the ironclad test oath for voters and officers of the new Southern state governments. 11 Lincoln's pocket veto of the Wade-Davis bill evoked a furious blast from one of its sponsors, Henry W i n t e r Davis. In his statement, Davis criticized Lincoln's use of an oath of future loyalty, terming it ". . . an illegal oath, without a sanction, and therefore void." 1 2 B u t throughout 1864 and 1865, it was Lincoln's oath which Southerners subscribed as the first step towards full reconciliation. W h e n Andrew J o h n s o n became President, the Radicals saw him as one of their own. " T h e people of this great nation will now thank God and take courage . . . that the days of criminal clemency to traitors are over; that milk and water and the oath of [future] allegiance will no longer be relied on, as sovereign remedies for treason and reb e l l i o n . " 1 3 T h u s wrote one Radical to Johnson. Sumner heard from Johnson's lips the words, " T h e r e is no difference between u s . " u Many Southerners thought that this was true. George C. Eggleston recalled how he and his neighbors feared the new President, considering Johnson a renegade Southerner. Eggleston wrote: We thought it probable that he would endeavor to prove his loyalty to the Union by extra severity to the South, and we confidently believed he would revoke the terms offered us in Mr. Lincoln's amnesty proclamation; where-

50

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OATH

fore there was a general rush to take the [amnesty] oath and secure the benefit of the dead President's clemency before his successor should establish harsher conditions."

Eggleston need not have feared; Johnson was to follow Lincoln's course. He had always followed it. As Lincoln's military governor in Tennessee, Johnson had obtained a reputation of harshness toward rebels. He had, indeed, excluded many residents from the polls and from official positions. But the test of participation in the Union government which Johnson helped create in Tennessee was a loyalty oath of future Unionism. Like Lincoln, Johnson did not seek to test the past. If Johnson's words were harsh, his deeds did not depart from the basic concepts which Lincoln prescribed for reconstruction." In his first days in office, Johnson did sound like a Radical, stressing the fact that reconstruction must be directed by friends of the Union. But while he wanted sterness for rebel leaders, he advocated ". . . amnesty, conciliation, clemency and mercy to the thousands of our countrymen . . . [who] have been deceived or driven into this infernal rebellion." 1 7 By May 1865, Johnson committed himself to continue Lincoln's reconstruction program; his proclamation of the 29th of that month restated Lincoln's plan with few significant additions. 18 T h e President ordered the provisional governor of North Carolina to commence political reconstruction based upon the oath of future loyalty, and commanded the federal departments to resume their prewar functions in the South. 19 T h e Radicals were outraged by the proclamation. 20 They saw in it the return to power in the South of ". . . the old pro-slavery and disloyal element . . . the oath-taking rebels." 2 1 Carl Schurz, during his famous postwar tour through the South, noted the demonstration of "returning loyalty" of a more positive character . . . [in] the taking of oaths of allegiance and amnesty prescribed by the general government. At first the number of persons who availed themselves of the opportunities offered for abjuring their adhesion to the cause of rebellion was not very large, but it increased considerably when the obtaining of a pardon and the right of voting were made dependent upon the previous performance of that act. . . In some cases the taking of the oath was publicly recommended in the newspapers and addresses with sneering remarks, and I have listened to many private conversations in which it was treated with contempt and ridicule . . . on the whole, it may be said that the value of the oaths taken in the southern States is neither above nor below the value of the political oaths taken in other countries. A historical examination of the subject of political oaths will lead to the conclusion that they can be very serviceable in certain emergencies and for certain objects, but that they have never insured the stability of a government, and never improved the morals of a people. 25

T h e break between Johnson and the Radical Republicans began

A

PROBLEM

OF

PEACE

51

with the May 1865 proclamation. It was to be given impetus as the executive departments renewed their activities in the defeated South. And it was the ironclad test oath which was to provide a m a j o r issue in the rupture between Johnson and Congress. As Governor Morton of Indiana declared in September 1865, Johnson had assumed Lincoln's mantle, adopted Lincoln's policies, copied Lincoln's oath. I t was up to Congress to defend its policies and maintain its oath. For Morton saw two policies, two oaths, in direct conflict, and only one could survive the b a t t l e . " By its terms, the ironclad test oath was required of every federal officeholder. Congress had ordained that this affirmation for all civil and military officers stand as a prerequisite for their positions. No salary was to be paid any individual who served the government until he swore to its statements of past and future loyalty. B u t Lincoln and Johnson maintained that the most desirable policy was to have local residents fill government posts. And Southerners expected this of the administration.' 4 Here the two conflicted; Congressional requirement opposed executive policy. Most Southerners could not take Congress' test oath. Were there enough who could take that oath, who wanted federal jobs, and who were professionally qualified? W h e n Sidney Andrews traveled through the South in 1865, an exrebel told him, "You've got . . . [the test oath] and you'll have to enforce i t . " 1 5 T h e s e words soon echoed in the Cabinet rooms in Washton. For Johnson's Secretaries learned, by J u n e 1865, that the test oath was a serious obstacle to their efforts to reanimate their activities in the conquered South. Gideon Welles recorded the discussion of the problem. He " . . . was both amused and vexed with the propositions and suggestion for evading this o a t h . " 2 6 Welles himself felt that the Southerners who had received Presidential pardons for participation in the rebellion need not take the test oath. He denied ". . . that Congress could impose limitations on the executive pardoning power." 2 7 Stanton suggested that those who could not take the whole oath, swear to as much as they could; for, in his opinion, the oath was a war measure, and that the need for it had passed. It ". . . ought to be disregarded," he said, "when it stood in the way of the . . . restoration of the public services." 2 8 Harlan, Secretary of the Interior, felt that the oath was binding on all departments. He believed it a proper requirement, one carefully framed to exclude ex-rebels from public service. T h e Attorney-General, James Speed, felt that the Cabinet must uphold the law, but thought that Johnson should call Congress into special session in order to secure its repeal. 2 9 Hugh McCulloch, Treasury Secretary, was especially vexed by the test oath requirement. H e was required by law to choose his revenue

52

ERA

OF T H E

OATH

personnel from among the local residents of the area in which they operated. 30 In August 1865, he again broached the subject of the test oath to the Cabinet, for he could not find enough Southerners able to take the oath. T h e Cabinet officers presented much the same views as in the J u n e meeting. Speed advocated delay in making appointments in the South. Seward was uncertain. He pointed out that Lincoln had signed the test oath law ". . . which in its operation was undoubtedly embarrassing to the Administration and injurious to the c o u n t r y . " " Welles proposed that the Cabinet officers appoint qualified men regardless of the oath requirement, and Stanton agreed with him. But, although the Cabinet unanimously agreed that ". . . the appointments should be made; that the current business of the Administration . . . must go on, notwithstanding unwise and ill-considered legislation," the department heads also agreed that it was beyond their power to disregard the test oath law until they tried to operate under its provisions for a longer time. 14 Johnson and the Cabinet did try to function within the limits of the oath requirement. On June 30, 1865, the President ordered that the postal services be resumed in South Carolina, ". . . giving to loyal residents the preference of appointments, but if suitable residents are not found, then to appoint agents, etc., from other States." 3 3 Johnson was willing to compromise, to deviate from his policy of using only local residents as government personnel; in this proclamation he offered an opportunity for loyal men, able to take the test oath, to locate in South Carolina and secure federal employment there. It did not work. T h e final word on this attempt to stay within the test oath law was said four months later, when Johnson was informed that "the present Oath of Office is such that no one can take it in South Carolina." 3 4 Nor was the number of persons residing in neighboring states who could take that oath substantially greater. 35 T o be sure, the test oath requirement presented an administrative problem only insofar as the South was concerned. Union army veterans, like Lester Ward, were available for hire in the civil service in other areas of the country; such men were a source of personnel able and ready to swear to the test oaths. In addition, executive expenditures on the scale of the war years were ceasing. Economy drives characterized Harlan's administration of the Interior Department, when ". . . as many as eighty removals on a single day were reported." Many of these persons were available to other employers in need of their services.15 But these factors were not operating in the ex-rebel states. On the contrary, in that area there were few Union veterans, almost no force of available civil servants able to take the test oath. And it was in this area that the entire federal structure had to expand from virtually nothing.

A

PROBLEM

OF

PEACE

53

T h e effects of the oath requirement on the departments of the Postmaster-General, the Attorney-General, and the Secretary ol the Treasury will be illustrated in subsequent pages. It should be noted here, however, that Dennison and Speed had maintained that the oath law should be obeyed, and it will be shown that they applied this attitude in their departments. Significantly, these two resigned from their Cabinet positions in July 1866. McCulloch, on the other hand, remained in the Cabinet until Johnson gave way to Grant. It is McCulloch's policy regarding the test oath that will deeply concern us." Hugh McCulloch was no man lightly to defy Congress." He attempted to enforce the test oath as a prerequisite for employment in his department. In March 1865, he ordered all subordinate Treasury officials to obey the test oath requirement. 39 As much as any one, McCulloch sought to keep peace between the President and Congress. In February 1866, he wrote, "Nothing can be gained, and great interests may be put in peril, by a serious breech." 40 But it was to be McCulloch who was to initiate the "serious breech." For he found his department almost unable to operate in half the nation, after the Cabinet had decided in J u n e 1865 that the test oath could not be removed. 41 In August 1865, the Treasury Secretary made his decision. With the approval of Johnson and the rest of the Cabinet, McCulloch decided to appoint the men he needed, even if they could not take the test oath. Newspapers carried the announcement of this policy: "Treasury appointees may receive their commissions and perform the duties of their positions without taking the test oath and without pay until Congress sits, taking the risk of provision then being made for their payment." i l Congress was not then in session. During the greater part of 1865, the Radical Republicans saw Johnson adopt Lincoln's program. Impatiently they waited for December, when Congress would convene, meanwhile keeping a watchful eye on all the activities of the executive program.** Southern Radicals kept men like T r u m b u l l informed of the political effects in the South of McCulloch's employment of nonjurors. Such communications stressed the need for maintaining the test oath undefiled if "true Union men" were to rule in the South. 44 Critics of the administration reacted swiftly to McCulloch's decision to disregard the test oath. Charles Sumner read the announcement of this policy in his Boston newspaper. Such violation of the test oath law seemed almost a personal affront to him, who had sponsored so much of the loyalty-testing legislation. He wrote to McCulloch: "People here have been very mystified by the . . . [announcement], was it a mistake?" Sumner hoped that it was not, as it seemed "an open disregard of an Act of Congress." 45 T h e test oath, he warned

54

ERA OF THE OATH

McCulloch, was designed to do just what McCulloch's policy would avoid: to keep ex-rebels out of federal positions. Nonjurors could have no salary, or legally discharge any duty, Sumner reminded McCulloch. A man who did not take the test oath could make no binding official actions; "all that he does," wrote Sumner, "is invalid." "As citizen and Senator," Sumner protested ". . . against the appointment of such officers to office a n y w h e r e . . . . I could not believe it could be attempted." ** McCulloch responded promptly in a conciliatory manner to Sumner's admonitory letter. He explained the difficulties imposed upon his department by the test oath. "It is the desire of the President," he wrote, "to appoint such Southern men to Southern office as can take the oath literally." There would be but few instances, McCulloch asserted, where deviations from the test oath would be necessary. But if these deviations were required, the oath would have to give way.47 McCulloch doubted the constitutionality of the test-oath act, and asserted that the need for such laws was gone since the war was won.4® This was heresy to Sumner. He replied angrily to every point which McCulloch had made. T h e test oath was designed for reconstruction as for war; it was ". . . aimed at the very men you now recognize"; what right had McCulloch to question an act which Congress had passed and extended many times? Sumner demanded that the executive departments rid themselves immediately of all who had not taken the test oath. He came then to the basic issue involved in the question of the test oath, and gave it its true description. "This very question of the oath seems to reveal the judicial difference between the Administration and the great bulk of its supporters." For, to Sumner, executive modification of the test oath requirement meant that " T h e Administration, in defiance of Congress, is determined to employ rebels in reconstruction." 49 T o Sumner, the test oath was of sufficient importance to warrant the breaking of political alignments and the creation of personal enmities. T h e purity of the reconstruction process was at stake. T h e test oath must stand. 50 In this manner did the ironclad oath become a major issue which broke Johnson completely from the Radicals who had believed him one of themselves.51 By September 1865, that break was not yet completed. Sumner could still plead for peace between Congress and the executive. 52 McCulloch could still try to allay Sumner's apprehensions by terming Johnson's reconstruction and test oath policies experimental. 53 T h e North would support Johnson, McCulloch believed; Sumner was wrong in his distrust of the Southern people." There was to be no peace, for Sumner was adamant on the test oath. "Be willing," he demanded of McCulloch, "to follow a plain Act of

A

PROBLEM

OF

PEACE

55

Congress." T h e executive department must, in Sumner's words, do " . . . Ά right about face in the present policy."" Johnson and his supporters in the Cabinet did not make "the right about face" which Sumner demanded. For six months the Cabinet officers had found themselves confined by the test-oath law. By this time, Johnson knew that the rigid enforcement of that law in the South would have crippled the operations of the executive offices there. He knew, too, what was perhaps more important in the political context of the time: that such enforcement would have deprived him of the support of many Southerners in his total reconstruction plan. Indeed, such enforcement would have directly contradicted the essential meaning of Johnson's reconstruction plan. T h e oath of future loyalty which was the heart of the executive reconstruction scheme meant to Johnson that the subscriber was qualified to vote and hold office." T h e test oath, demanding past loyalty, proscribed the great majority of Southerners from federal positions. What this meant in terms of the ordinary Southerner is perhaps best described by Η. M. Watterson. This roving correspondent reported to Johnson from various Southern cities. From Wilmington, in July 1865, he commended Johnson on his choice of appointees to several top-level federal posts in that area. "There is some question, however, whether they can take the [test] oath required," he wrote. "Nobody doubts that they are and have been all the while good Union men," stated Watterson, "but like nearly everybody in North Carolina, from 17 to 55 years of age, they may have in some form or other been mixed up with the rebellion."" From other sources, Johnson learned of the effect of the test oath on the resumption of federal operations in the South. " T h e test oath is . . . a great obstruction . . . [in Alabama], impeding the mails by, in effect, prohibiting the appointment of Postmasters. Even the women here refuse to take it."5® North Carolinians anxiously awaited the establishment of mail facilities. From that state, a former Cabinet officer of the defunct Confederacy had ". . . neither mails nor correspondence." 59 South Carolina pardon applications came to Johnson by personal messengers, ". . . as we have no mail facilities." 8 0 Lack of postal facilities hampered the realization of Johnson's reconstruction plans in Texas. There, Johnson learned from A. J . Hamilton, ". . . owing to our immense territory and entire absence of mails, the election cannot be provided for by proper notice." 61 McCulloch's problems with the test oath may be summed up in the following complaint of a prominent ex-rebel. From Georgia, Herschel V. Johnson wrote, " I t is impossible to procure the services of competent revenue officers to assess and collect taxes who can take the test

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o a t h . " T h e writer urged that the executive authority modify or waive that requirement. 8 1 As with the Treasury and postal functions, the test oath hampered the reinstitution of the federal courts in the South. Here the test oath prevented the Attorney-General from securing judges and such court personnel as clerks, marshals, etc. And Congress had extended that requirement to all attorneys practicing in the federal courts. Moreover, federal jurors had to swear to a similar oath of past fidelity. T h e s e oath requirements led T e x a s ' Provisional Governor to complain to Johnson about the " . . . want of influence of the Federal courts."® 3 R e k n i t the Union, stabilize Southern conditions; these are the themes stressed in the pleas which J o h n s o n heard for resumption of federal services. In this vein, a Virginian wrote to Chase, " I am more fully impressed with the belief that the Circuit Court should be organized. . . . T h e r e are many in this State who are determined to be only so loyal as they believe they are obliged to b e . " 6 4 But the federal District Judge in Alabama indicated what was hindering the realization of these objectives. H e told Johnson of the "very great difficulties of a practical nature . . . [which were] arising out of the laws of Congress of July 2, 1862 and January 24, 1865 [the test oath and its extension to attorneys]." 6 5 In North Carolina, all the federal court appointees proved unable to take the test oath. T h e Attorney-General, Speed, stressed his desire to appoint suitable officials in that state. He admitted that the earlier appointees were good men: "Such men should be in the service of the government," he wrote. B u t Speed was determined to maintain the test oath requirement. 6 6 Actually, the Cabinet members, faced with the same test-oath problem, were following several individual courses. McCulloch had decided to dispense with the test oath in the interests of operating efficiency. T h e postal head, Dennison, waived the test-oath requirement in the South for a very short time in the spring of 1865. H e then changed his policy, and demanded the oath of all postal employees. And Speed at all times insisted on the Congressional oath as a requirement for all personnel of the Attorney-General's office. Each department head was free to make these policies as he deemed best; J o h n s o n did not demand uniform administrative programs from his Cabinet officers." B u t whatever policy the individual Cabinet officer chose, the test oath proved a hindrance in the South. Charleston's federal courts remained unopened as late as April 1866 because of Speed's insistence on the test oath. Speed had to await the presence in Charleston of a Union Army veteran from the North who could qualify as District Attorney before that post was filled. T h e r e was " . . . no competent member of the Charleston bar willing to take the office, who can subscribe to the o a t h . " 6 8

A

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57

In Texas, there were professionally qualified jurists who were untainted by rebel service. There were, however, almost no men for the clerical posts, who could take the test oath. Similarly, Johnson chose a District Judge for Alabama, but the court itself remained unorganized for almost two years. In six states (Arkansas, Florida, Kentucky, Louisiana, Tennessee, and Virginia) federal courts were functioning behind military lines in 1865, and they had never closed in Missouri.69 Johnson's first choice for North Carolina's District Court was unable to take the test oath. Not until August 1865 could Johnson secure a qualified successor. It was March 1866 in South Carolina, and May of that year in Mississippi, before Johnson could fill federal judicial posts in those states. T h e test-oath requirement also delayed the reopening of Georgia's federal courts. 10 Alabama's historian of this period, Walter Fleming, tells us that "For years after the war the test oath obstructed administration and justice. . . . T h e Alabama lawyers could not take it and the United States courts could not be held because there were no lawyers to practice before them." 7 1 And Texans bitterly resented the jurors' test oath, for it ". . . practically excluded native whites from the j u r i e s . " " Federal courts in Virginia remained closed in several counties where not a single judge could be chosen who would, or could, swear to past loyalty/ 1 T h e Thirty-ninth Congress was to take a hand in the problem of the test oath when it convened in December 1865.

CONGRESS, T H E

EXECUTIVE,

AND THE TEST OATH I came to Washington and under extraordinary circumstances succeeded to the presidential chair. . . . We found that the [Southern] people had no courts, and we said to the judges . . . "Go down and hold your courts." . . . The courts were opened. We looked out and saw that the people down there had no mails. . . . We said to the Postmaster General, "Let the people have . . . mail communication, and let them begin to understand . . . that we are one people." . . . And it was done. We thus travelled on, step by step . . . restoring all the relations that had been interrupted by the rebellion. Was there anything undertaken . . . that was not authorized by the Constitution . . . 1 ANDREW JOHNSON

H I N K O F SEVEN M O N T H S CIVEN U P T O C H A O S AND A N A R C H Y ,

WITH

license to rebels!" It was in December 1865, as the Congress prepared to meet for its first postwar session, that Charles Sumner wrote thus to Schuyler Colfax. The two agreed that it was up to Congress ". . . to do what it can to repair the damage." And they agreed that the cause of that "damage" was Johnson's reconstruction program, and the retention in government offices of men unable to swear to the ironclad oath of office. McCulloch, Sumner was convinced, ". . . had been one of the godfathers of this fatal policy." 1 McCulloch was conscious of the critical attitude with which prominent members of the new Congress viewed his test oath policy. But his first concern was, naturally, financial policy. McCulloch believed that the success of his fiscal program depended upon the rapid restoration of the Southern states. In this view he was one with the President, and both men felt that the test oath law was an obstacle in the path of this supremely important goal. Yet McCulloch did not want to antagonize die Radical bloc in Congress; he needed their votes for the financial policies he planned to offer to the legislature.2 Patronage—that item of primary political importance—was another element in this picture. During the war years many Radical Republicans, men who could prove past loyalty without question, had obtained •Speech Before the Association Congressional Globe Office, 1866).

of Soldiers

and Sailors

. . . April

IS, 1S66 (Washington:

CoNCiRiss,

ΤΗ κ

ExicinvK,

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Ι ΗΚ TKST

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high level government posts. Such men feared Democratic success at the polls perhaps as much as they desired Union victory in the field. And the normal Congressional interest in patronage made politicians acutely aware of the appointees McCulloch chose to fill the Southern Treasury offices. For the Treasury Department was the largest government agency; it alone had experienced no postwar reduction in size.3 Johnson's supporters and the Radical Republicans, as the rift widened between them, became increasingly aware of the political desirability of filling all offices with their respective partisans. 4 McCulloch found a temporary solution to the patronage problem by dividing Treasury offices with an admitted Radical, E. A. Rollins, Commissioner of Internal Revenue. T h e Treasury Secretary and Rollins personally made most of the higher level appointments. T h e s e officials, in turn, named subordinate personnel. Inevitably, this arrangement produced a partisan division among Treasury personnel; ardent Radicals who found no problem in the test oath worked side by side with men who could not take that oath. Democratic Congressmen complained that Radicals received too many offices while Radicals felt their share insufficient. It was an unsatisfactory arrangement from its inception, and it was only the urgency McCulloch felt to keep his department functioning in the South at all which impelled him to maintain it until the summer of 1868. 5 B u t if McCulloch would resort to unusual expedients to keep Treasury operations functioning in the South, if he would go to the length of violating Congress' test-oath law, he found that the new Congress was in no mood to condone his actions. W i t h i n a week after Congress met, the Senate had before it for confirmation the names of the unsworn government employees. On Sumner's motion the upper House resolved (December 13, 1865) to inquire of McCulloch, Stanton and the Postmaster-General, Dennison, the names of all their employees who had not taken the test oath.* McCulloch hastened to reply, to argue his case before the Senate, to plead for that body's approval. On December 18, 1865, his report was read on the Senate floor. T h e Treasury head described the great obstacles his department had faced when Lee surrendered, the urgent need to revive the nation's commerce and reestablish federal authority throughout the conquered states. For these purposes the services of competent revenue officers were essential; for these purposes Treasury officials must be local residents of the areas they serviced. T h e alternative?—taxes uncollected, offices unfilled. McCulloch was sure that Congress would not have desired such a consequence. 7 T h e only men, McCulloch stated, who fitted these requirements in the South, could not take the test oath. Few professionally qualified Southerners had not seen Confederate military or civil service. McCul-

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loch had decided to hire such men, especially in the all-important positions of assessor and assistant assessor, but he had first ordered that applicants be screened, that they be innocent of direct complicity in secession, and had aided the rebellion only when the United States no longer afforded them protection.·' McCulloch concluded with three requests. First, he asked the Senate to approve his relaxation of the test-oath law in the South. He followed this with a prayer for swift salary appropriation for the nonjurors, many of whom were by this time in financial distress. Finally, McCulloch proposed that Congress modify the test oath to permit attestations only of future fidelity. Without such actions, McCulloch feared that ". . . the revenue system cannot be safely or properly administered in many districts of the Southern States." 9 From the Post Office, Dennison, too, asked that Congress modify the test oath. He, however, was able to report to the Senate that no nonjurors existed in his department. He had, Dennison admitted, hired, in the months following Appomatox, some men who could not swear to the test oath. T h e n Dennison had decided that McCulloch's course was wrong, that no federal personnel legally could function until they had taken Congress' required oath. By October 1865, Dennison had ejected all nonjurors, without pay, from his department. But the postal head also requested a modification of the test oath so that he might secure properly qualified personnel in the South. We shall see that he needed them. Both Secretaries promised the Senate that they would hire no more nonjurors in the future. 10 Stanton's short report from the War Department requested no change in the test-oath law, stated that no nonswearers were on the rolls of his unit or over had been. His solution to the test-oath problem had been simple—Stanton had military officers at his disposal, all of whom had already taken the ironclad oath." T h e three reports reached the Senate just after the Christmas recess; the new year of 1866 seemed auspicious to McCulloch. He looked forward with confidence to Senate approval of his recommendations concerning the test oath, learned from James G. Blaine that many considered him ". . . strong enough to dictate to Congress any policy you may adjudge to be best." 1 2 McCulloch and Blaine were both wrong. When the Senate reconvened McCulloch's report was greeted by Trumbull's scathing denunciation of the Treasury Secretary's policy; the House, by a majority of ninety-three, resolved that the test oath ". . . is of binding force on all the departments of the public service, and should in no instance be dispensed with." 1 3 It was for McCulloch, as the editor of the Nation stated, a very embarrassing situation. 14 From December 1865 to April 1866, no new developments marked

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the test-oath situation, but the effects on efficient administration may well be inferred. T h e tenures and salaries of the unsworn personnel remained uncertain; many Southerners refused to apply for federal posts because of the test-oath requirement. 1 5 By March 1866, McCulloch had once again to ask the assembled Cabinet for advice on the test-oath problem. W i t h the full support only of Welles among all the Cabinet officers, McCulloch and Dennison prepared a report on the test oath to submit to the President, and through him to Congress. Once more Congress would be asked to modify the oath. 1 6 By mid-April 1866, the reports were ready, prefaced with Johnson's hearty endorsement: " I fully concur . . . [in these recommendations]," wrote the President, "and earnestly commend . . . [them] to the early consideration of Congress."' 7 T h e first part of the lengthy communication was McCulloch's. He began with a list of the higher-level Treasury personnel who had been unable to take the ironclad oath; the assessors, assistant assessors, collectors and surveyors of customs. In addition, McCulloch stated, " . . . a considerable number, perhaps the larger proportion, of those holding subordinate positions [in Treasury offices in the South] have also been unable to comply with the statute." 1 8 T h e Treasury head described the financial difficulties into which many of these men had fallen because of their inability to draw their salaries. Unqualifiedly, McCulloch reaffirmed the fidelity and competence of these unsworn employees, and repeated his belief in the necessity and desirability of utilizing local residents as federal employees. Although he feared that "great loss to the government and great inconvenience to this department must result from the discontinuation of their services," McCulloch suggested that he would request the resignation of the nonjurors if Congress refused to pay them. B u t he stressed the responsibility of the government to pay the salaries due for services already rendered.1® T h e President and the Cabinet had hoped for a modification of the test oath ever since Congress had convened in the previous December, McCulloch said, and the unsworn employees ". . . have been living and working in this hope." I n considering the consequences of a refusal of Congress to accede to the executive desire for a modification of the oath, McCulloch believed that ". . . it will be difficult, if not impossible, to find competent men at the south to fill the revenue offices under the statute." T h i s was especially true, he argued, of the subordinate positions. T h e younger men desired for such posts had all matured under the Confederate experiment; few could present a clear record of unalloyed Unionism. 2 0 It had been urged in Congress and the press that there were many in the South qualified to take the oath, and that Johnson's policies, therefore, discriminated against Unionists. T o this, McCulloch ans-

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wered that he had already employed those Southerners who possessed the requisite professional qualifications, could take the oath, and wanted federal posts. T h e remainder of Southerners able to take the oath lacked training, or had a record of loyalty which would have been " . . . equally fair . . . under the confederate government if the rebellion had been a success." Northerners had not been employed in great numbers for two reasons. Primarily, the low salaries had not enticed many to relocate in the South. And it was still McCulloch's contention that " . . . it would be better . . . to suspend the collection of internal revenue taxes in the southern States . . . rather than collect them by men not identified with the taxpayers in sympathy or in interest." 2 1 McCuIloch did not venture to specify the type of modification of the test oath which he desired, except to infer that his objects would be met by "a very slight change in the o a t h . " T h i s alteration would, in effect, require the present and future loyalty of a federal employee to be affirmed, and thus permit the unsworn Treasury employees " . . . to hold the offices they are now so acceptably filling."" T h i s type of modification would permit McCuIloch to keep up the revenue collection in the South, maintain local residents as its personnel, and obey Congress. W i t h McCulloch's report, came one from Dennison. It had been the latter's responsibility, as Postmaster-General, to extend postal facilities throughout the South as one part of the " . . . re-establishment of the . . . constitutional relations with the general government." Dennison had to confess general failure. "Various causes," he stated, "have doubtless contributed to the failure in accomplishing all that was hoped for, but that resulting from the [test] oath . . . has not been the least, while it has been the one to which my attention has been most frequently called." 2 3 Dennison did not agree with McCuIloch that there were too few trained persons in the South able to take the test oath. No longer did the Postmaster-General permit nonjurors in his department. It was Dennison's contention that his difficulties arose from insufficient compensation for postal employees and the social stigma which adhered to those Southerners who did take the oath, ". . . where the great majority of their neighbors consist of those who had in some form aided the rebellion." Dennison's determination to remain within the letter of the law had forced him to resort to expedients which he admitted were almost totally unsatisfactory from the viewpoint of administrative efficiency. In short, he had been forced to waive technical qualifications in order to secure such employees as he did obtain. H e had, under the compulsion of the oath requirement, appointed ". . . very many ignorant per-

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sons, incompetent to discharge the duties of their offices." Women had been employed as postmistresses, ". . . which has proved of doubtful utility to the service." And, in many places, military personnel served as postal functionaries. " Even such recourse to unsatisfactory personnel had not solved Dennison's administrative problems. Of 2,258 mail routes in the South in 1861, but 757 had been restored at the date of this report (April 1866). In the South a total of 8,902 postmasterships existed at that time; but only 2,042 had been filled, and for these, only 1,777 qualified for office. Female appointees accounted for 420 of the fully qualified group. T h e remaining 865 remained unqualified and unappointed because they could not take the test oath, and 6,860 post offices remained completely closed. Dennison's solution, like McCulloch's, lay in a modification of the oath requirement, but it was a modification different in spirit which Dennison suggested. McCulloch, it will be recalled, proposed that the future loyalty of federal employees be sworn to; Dennison suggested that the ironclad test oath be modified by the inclusion of the word "voluntarily" preceding the statement of officeholding under rebel authority. In this way conscripted Confederate soldiers could qualify; anyone who had not volunteered for Confederate service could take such an oath. 26 On the other hand, McCulloch's problem would not have been solved by such a modification as Dennison proposed. T h e personnel McCulloch had hired in the South had, generally, aided the rebellion, and depending upon the definition given the word, had done so voluntarily. This is evident from an examination of the oaths of office the Southern employees had submitted to McCulloch. T h e majority of these men had subscribed to a simple pledge of future allegiance to the Constitution. Some, in fact, used the form the Constitution prescribes for the President; others found the August 1861 civil servants' oath suitable. T h e Presidential amnesty oaths found favor among some, and others had modified the ironclad oath to fit their needs. Whatever the form of the oath, in every one of the fifty cases covered in this report the result was an attestation of future, not past, loyalty. 27 Thus, in both the Treasury and Post Office Departments, the test oath hampered the resumption of their functions in the South. This was true despite the fact (or regardless of the fact) that the two Secretaries had chosen different courses regarding enforcement of the oath statute. McCulloch permitted nonjurors in his department in the interests of administrative efficiency; Dennison had chosen to obey the test-oath law, and nonjurors were dismissed. But postal officials often had to waive professional requirements in the interests of past loyalty. From the standpoint of the administrative health of the postal service,

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Dennison's decision was as unwholesome as was McCulloch's. Only Congress could rescue them from this unsavory predicament. T h e two Secretaries waited for Congress' reaction to the request for a modification of the oath which they had submitted. T h e House Committee on the Judiciary had considered the request of the executive departments for a modification of the test oath. It made its report to the House on April 23, 1866, its three members splitting 2-1 against the Secretaries' recommendations. An examination of the reasoning behind both majority and minority reports offers an illuminating insight. One can discern therein the extremes of contemporary thought on this question of loyalty and its identification, as well as on the specific subject of the test oath. These are partisan documents, read to a body largely solidified, by this time, in its political antipathy to Johnson and all his works. These political considerations are visible in the document. T h e majority began its rejection of the request for a modification of the test oath with an account of the need for that oath during the war years. "Congress and the country were convinced," they stated, "that upon the consciences o f . . . [the secessionists] the ordinary oath of office would have but little effect. . . . T h e test oath of 1862 was one of the results of this conviction." T h e treason of the "secession winter" might well be repeated, it was argued, were such men again trusted with office." All the trouble that Johnson's Secretaries had had with the oath test had been a result of their own policies, it was alleged. Unionists were not favored in these policies, the argument continued, although there were plenty such in the South able to take the test oath. In considering McCulloch's and Dennison's claims of the hardships imposed upon their departments by the test-oath requirement, the majority of the committee found no reason to relax the law. "No temporary inconvenience will answer as a justification for a departure," it was decided. T h e n the committee turned to examine the validity of the allegations of urgency made by the executive request." T h e committee insisted that there were plenty of Southern residents available who could take the test oath. Why had not the more than 50,000 Southerners, including Negroes, who had aided the Union cause in military service, been recruited? 30 Why had not McCulloch and Dennison found employees amongst the names of ". . . hundreds of respectable, reliable, and intelligent Unionists in . . . [Alabama] who are able to take the test oath of office without mutilation or mental reservation?" Had not an ex-Union general supplied such a list to the committee? And there was a letter from a Virginian, one who had

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been imprisoned by the Confederacy for his outspoken adherence to the maintenance of sectional unity. He had written of enough Richmond residents alone ". . . to fill all the federal appointments, that can take the test oath without modification. . . . I humbly pray the Congress not to modify the oath." 3 1 T h e heart of the majority's argument lay in its condemnation of Johnson for not having convened Congress in special session before its regular meeting date of December 1865. Had the situation relating to the test oath been as urgent as was stated by the executive department, Johnson should not have waited until December to seek the cooperation of the legislature. In this way, it was averred, a solution might have been effected, "for with the views then [just after Lincoln's murder] entertained by the President relative to the power of Congress over the subject of reconstruction," all friction might have been avoided." But in no case did any executive functionary have a right to dispense with a law of Congress; ". . . all officers must yield obedience" to the legislative power, it was stated.33 T h e big guns of the majority of the committee had been trained on the single objective of discrediting McCulloch (and through him, Johnson) for his action in relaxing the oath requirement. Yet it is of interest to note that Dennison, who had permitted the efficiency of his department to suffer rather than follow McCulloch's course, did not escape the attention of the committee. In this case, however, the committee did not attack Dennison personally, but did criticize his arguments. Dennison had claimed that his difficulties in securing sufficient postal personnel lay more in adequate compensation than in the oath test. T h e committee was quick to show that either proposed modification of the oath would not help here. T h e second main argument of the postal head was that social pressure restrained Southerners of unimpeachable loyalty from taking the test oath. T h e majority believed that a ". . . modification based on such consideration would operate as a premium for disloyalty." 34 There was little hope in the majority report for the modification of the test oath which McCulloch desired. T h e committee stated its conditions for modification of the oath. Before such a change was warranted, Southerners must ". . . learn that . . . loyalty is a virtue which cannot be destroyed by the social power of the disloyal. When these ends are secured, it may be expedient to modify the test oath, but not until then." 3 5 In speaking of another aspect of the test-oath problem, Gideon Welles had said, "There is party in all this, not patriotism or country." 36 His words fit the majority report. They also describe the

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minority report. T h e lone member of the minority was Democrat Andrew J. Rogers of New Jersey. From diametrically opposite views of the situation to those of the majority, he proceeded to equally dissimilar conclusions. Rogers commenced by reviewing the events of 1861. In that black year the federal government had ceased offering protection to most Southerners. Whatever the desires of these people, Rogers believed they had little choice but to obey the authority of rebel governments. For many, material needs made it necessary to serve those governments; others had been conscripted into Confederate military service. T h e war years were past, Rogers urged. He contended that the President and his administrators knew the actual picture in the South better than could Congressmen, that "We must deal with things as they now are and not pursue the same course to fallen foes that we would pursue . . . were they in arms against the government." 3 8 If most Southerners had little control over their participation in the rebellion, Rogers argued, then the fact that the leaders of the secession movement had been screened out of potential federal employment argued well for McCulloch's policy. It was a point in favor of the proposed modification of the oath, which stressed the fact that the affiant had not voluntarily aided the rebellion. Rogers advocated the proposed change; he pointed out that both McCulloch and Dennison had agreed on the change to be made, and he showed that the oath thus modified could be taken by most of the unsworn employees." T h e lone member of the minority went further. He believed that the only oath of office which was legitimate was that specified in the Constitution. His position here was far more drastic than that of McCulloch or Dennison. Rogers denied that Congress could add other qualifications to officeholders than those Constitutionally sanctioned. He stressed the efficacy of the Presidential pardoning power in relieving those otherwise disabled from federal officeholding by the oath. 40 Rogers concluded with an appeal for an end to partisan considerations: T h e test oath must, at some time, and that is not far distant, be repealed . . . unless it is the determination of the people to deprive the present generation in the south from a voice in the affairs of the nation . . . to exclude seven millions of people from participating in federal affairs by the taking of an oath u n k n o w n to the Constitution . . . which they cannot take without false swearing, is despotism pure and simple. 4 1

His plea was met with the unleashing of a veritable storm of partisan clamor when the report was read on the House floor. It made for "one

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of the m e m o r a b l e incidents of the close of the session." Senators j o i n e d in; S u m n e r and C h a n d l e r led a n " a s s a u l t " on M c C u l l o c h . C h a n d l e r called the harrassed T r e a s u r y administrator a " l i a r , " a " t h i e f , " and a "pauper."4* So far as the requested modification of the test oath was concerned, Congress took no action. R a t h e r , the House J u d i c i a r y C o m m i t t e e was instructed to prepare a bill for " . . . the direction of U . S. district judges and attorneys in reference to e n f o r c i n g the test o a t h at the S o u t h . " 4 3 T h i s bill never came out of c o m m i t t e e ; the need for it died with the c o m m e n c e m e n t of Congressionally controlled reconstruction in the early m o n t h s of 1867. B u t even if the proposed modification had been made, there is some evidence that indicates that many Southerners would have been dissatisfied with an o a t h t h a t looked to past conduct at all. T h u s , the Augusta, Georgia, Transcript carried an editorial o p i n i o n that the test o a t h . . . must be repealed; for the modification proposed by the Postmaster-General . . . would not make it less odious. People who have engaged in the war, or held any office under the Confederacy, cannot honestly take any oath of the sort, and cannot therefore retain any social prestige if they do. T h e only course that would serve the . . . Government is the abrogation of the oath. 44 B u t if some Southerners w a n t e d the whole c o m p l e x of test oaths which i n q u i r e d into past fidelity removed, they were far afield from the political realities of the " c r i t i c a l year" of 1866. Congress, preparing for the m e m o r a b l e electoral b a t t l e of that year, was a n y t h i n g but ready to abolish the test o a t h . T h e moderate Nation, recognizing the fact that " . . . U n i o n m e n at the S o u t h would serve the G o v e r n m e n t more faithfully than ex-rebels," called for " . . . some regard . . . to the efficiency of the service . . . [rather] than to a n y t h i n g the candidate has done or suffered in the past." T h e Radicals, on the o t h e r hand, proposed that postal and revenue services cease in those areas where qualified oath-takers could not be f o u n d s 5 M c C u l l o c h became the scapegoat of the R a d i c a l s , the special target to S u m n e r , the center of partisan controvery u n t i l J o h n s o n left office.4® M c C u l l o c h knew t h a t the hoped-for r e l a x a t i o n of the test o a t h was u n o b t a i n a b l e when the m a j o r i t y o f the H o u s e J u d i c i a r y C o m m i t t e e reported adversely on his request for such modification in April 1866. I f no relief was to be seen in this q u a r t e r , i m m e d i a t e action was needed from Congress on a n o t h e r aspect of the test-oath p r o b l e m . All those employees who had n o t taken the ironclad test o a t h in unmodified form h a d been paid no salaries; m a n y had been on the j o b for over a year by this time.

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In his request to the House for modification of the test oath, McCulloch had appealed for an appropriation to pay these unsworn employees. 47 This request opened another phase of the running battle between Johnson and the Radicals; another chapter in the use of the test oath as a political weapon; one more step in the complete estrangement of the President from Congress.

7

T H E P E R S O N A L FACTOR IN LOYALTY O A T H S

That all those, who are entrusted, with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the Constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guarantee from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a supreme being.—JOSEPH STORY*

"T A

W I L L NOT VOTE TO PAY THOSE R E B E L S ; L E T T H E SECRETARY [OF T H E

Treasury] pay them out of his own pocket." 1 Charles Sumner was speaking in the Senate. His object was to defeat a bill which would have provided payment to the federal employees who had not taken the test oath. It was mid-May 1866, only six months from the important Congressional elections. J o h n Sherman, chairman of the Senate's Finance Committee, had approved the measure. He found the situation very simple, saying: The Secretary [of the Treasury] found it impossible to find men in some of the . . . rebel States to discharge the duties of assistant assessors who could take the [test] oath. According to law, they must live in the counties in which they respectively hold office. The Secretary was, therefore, compelled to dispense with a part of the oath in particular cases.2 Senator Reverdy J o h n s o n upheld this proposal as a matter of good faith on the part of the government. T r u m b u l l of Illinois disagreed, arguing this would mean payment to persons illegally in possession of federal offices.·' Sumner supported T r u m b u l l ' s arguments. T h e Massachusetts legislator considered McCulloch a criminal for his violation of the test oath. "Congress," he warned, "has been too lenient towards the crimes of this offender." 4 T h e appropriations bill did not pass. I f 'Commentaries

on the Constitution

of the United States

(3 vols.; Boston: Hilliard, Gray &

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Congress was to have its way, federal officeholders who had not sworn to the ironclad oath would remain unpaid. For McCulloch, the problem of administration was worse in mid1866 than it had been before Congress convened six months earlier. Gone now was hope for a modification of the test oath or for financial relief for the nonjurors. McCulloch had now to choose between several courses of action. Perhaps none of these choices could have been palatable to him, or to the reconstruction policy of the administration. First, he could resign. H e thought of this, apparently, but rejected the idea. Financial policy was McCulloch's primary responsibility. His conservative fiscal views were clearly similar to those of the majority of the Republican party. T h e Radicals themselves did not want McCulloch to leave the Cabinet, for they feared that Johnson might replace him with an advocate of heretical economic beliefs. And Johnson could depend upon McCulloch for sound support on the reconstruction issue. McCulloch decided to remain in the Cabinet. 5 T h e other choice for McCulloch was to abandon his hope for a modification of the test oath, and to discharge the nonjurors. It meant, in effect, the gift of federal patronage in the South to men who had never aided the rebellion. In short, as will be shown, this meant federal jobs to Radical Republicans. T h e logic of the situation for the Radicals was clear: the test oath must be kept in force.® T h a t such was the case is illustrated by a bill of February 1866 which proposed to permit the Postmaster-General to sell bulk postage stamps to persons who were not postmasters. Obviously, this would permit Southerners who could not take the test oath to have some postal service. B u t the patent intent of this Democratic measure to evade the oath requirement did not escape Sumner, or Chandler. T h e two joined in a strong attack on the measure and the Senate Post Office Committee which had approved it. Although the bill survived this obstacle in the Senate, it was subsequently lost in the House. 7 If the Radical Republicans, in the first half of 1866, were not yet able consistently to command the majorities they needed, they could maintain a close watch on the executive departments in this matter of the test oath. Sumner secured a Senate inquiry into the case of a Virginia mail contractor whose honesty in taking the test oath was open to question. 8 T h e House made a broader investigation in May 1866, when it inquired of all the executive departments whether any clerks might have been in the rebel army. Such service, of course, should have proscribed the subscription of the ironclad test oath. Welles of the Navy Department reported that since the end of the war only Union veterans had been employed by his officers. Harlan of the Interior Department gave all of his employees a clean bill of loyalty

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health. T h e Postmaster-General, Dennison, was able to state that ". . . all appointees in or connected with this department . . . have taken the . . . 'test-oath' without alteration or explanation"—the effects of achieving this record on the efficiency of the postal service have already been indicated." All the other executive departments, except the Treasury, were able to report that none of their functionaries had seen rebel service.10 And what of the Treasury Department, which, to the Radical viewpoint, had been the chief offender of all the executive departments in the matter of the test oath? It was upon McCulloch's activities that the Radicals trained their most critical spotlight. When Congressmen desired information concerning the past loyalty of McCulloch's nominees for Treasury posts in the South, trusted informants in that area were questioned; their information largely concerned the ability of the nominee to swear to the test oath. 11 By June 1866, McCulloch was faced with the necessity of making a decision in relation to the Treasury personnel in the South who had not subscribed that oath of past loyalty. He had resorted to temporary expedients in order to pay a few of these men, using surplus War Department funds for this purpose. Sumner learned of this, and made political capital of it. 12 McCulloch made his decision; maintaining the unsworn Treasury personnel in service was, increasingly, an administrative embarrassment and politically unwise. Further, it seemed to McCulloch a great injustice to ask these men to remain in their positions, unpaid, with no probability of future payment." Congress triumphed; its test oath was to remain as an active bar to the participation of most Southerners in the administration of federal functions. "On account of your inability to take the oath required by law, I am reluctantly compelled to suggest that . . . you forward me your resignation." Thus wrote McCulloch in June 1866. A series of such letters went out to the many places in the South where Treasury officials, unsworn to the test oath, had been operating since the end of the war. McCulloch promised that he would exert every effort to obtain the salaries due to these men for their past services, ". . . and I trust," he wrote, "that suitable provision will be made in some way for such payment." 1 4 This part of the cold war between Congress and the executive had ended; the former's victory was underlined as the letters of resignation from the nonjurors reached McCulloch. " I regret the necessity which compelled the writing of the note," wrote a resigning Treasury employee. He continued, " I . . . sincerely thank you for the efforts you are making to obtain for me the compensation now due for past services." 1 5 Newspaper accounts of the struggle between McCulloch and Congress had prepared the nonjurors for the resignation request. With

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thanks to McCulloch for the ". . . liberal sentiments which you have publicly expressed in regard to the class of Revenue Officers to which I belong," one resigned.18 Less amicably, another concluded his resignation with the hope that his ". . . successor will have the same regard for oaths." " Most terminated without recorded comment. 18 Others utilized this as an opportunity to stress the financial difficulties into which they had been placed by the test-oath imbroglio. "It devolves upon me to pay Deputies, rent of offices, office furniture, &c.," went one such letter. The writer described the extent of his monetary troubles based upon his inability to secure his salary. It was his ". . . hope and trust that ere long provision will be made for payment."1* Four years were to pass before that expectation was fulfilled. 20 At this point, two questions intrude themselves into this account, and deserve consideration. McCulloch had consistently alleged that the test oath had been an obstacle to Treasury operations in the South because of the lack of qualified Southerners able to take it. The first question, then, concerns the actual availability of Southerners who could take the test oath. If McCulloch's appointees had been able to take that oath, a source of antagonism between Congress and the executive would have been removed. In his several reports to Congress, McCulloch said that the nonjurors he hired were loyal. These men could not take a test oath of past loyalty, for uncontrollable events had placed them into situations where they had aided the rebellion. McCulloch insisted that this inability to meet the legal prerequisite did not diminish their real fidelity. Secondly, then, we may ask, were these men truly loyal? Some fragmentary, but suggestive, evidence exists on both these points. Inquiring into attitudes and sympathies is, however, always a delicate process.21 A more serious limitation exists. By 1866, the legal aspects of the test-oath issue had become enmeshed in political partisanship. The test oath was a political weapon; McCulloch's deviation from it provided the Republicans with political ammunition. The Democrats also found campaign material in the oath issue. Any examination of these questions must be placed into the context of political realities. T o answer the first question, one may examine McCulloch's ability to operate in the South after the bulk of the nonjurors resigned in mid-1866. It becomes apparent that he was able to find personnel able to take the test oath. In order to do this, however, he had virtually to abandon another facet of the administration's reconstruction policy, that of using local residents as federal administrators. For he had to turn, increasingly, to two groups in the South. One was composed of the small number of Southerners whose Unionism had remained unimpaired throughout the war. Some had fled to the North during the

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war, a n d were now seeking to rebuild their lives in the South. Most of these staunch patriots were Radical R e p u b l i c a n s by 1 8 6 6 . " T h e other g r o u p to whom McCulloch turned was composed of the g r o w i n g n u m b e r of Northerners who h a d moved South. Such persons c o u l d take the test oath; many of them were U n i o n Army veterans. A n d a l t h o u g h most federal positions p a i d poorly, they were attractive to the recent immigrant into the South whose lack of financial success at h o m e often had impelled the m o v e . " Many Northerners did apply for federal posts in the South, and they often offered as a m a j o r qualification their ability to take the test o a t h . " H i g h T r e a s u r y officials m a d e extended trips through the Southern states after M c C u l l o c h h a d determined to dismiss the nonjurors, seeking replacements a m o n g exU n i o n army men. T h e y reported substantial success." McCulloch's view of the inability of Southerners to take the test oath d i d not agree with the opinions of many who wrote and spoke from the South. It was the consensus of these commentators that M c C u l l o c h erred, that there were plenty of Southerners whose unimp a i r e d past U n i o n i s m permitted them to take the test oath. For exa m p l e , Congress heard that R i c h m o n d alone could supply enough men able to take the test oath to fill all the federal positions in the South. 2 8 A South C a r o l i n i a n thought that McCulloch was slandering Southern Unionists when he alleged that he could not find enough Southerners able to take the test oath. 2 7 A Georgian assured S u m n e r that his state alone could fill twice the number of federal positions with qualified men able to swear to the required oath of office. 28 T h e r e was less exaggeration in such claims than m i g h t a p p e a r at first glance. A n d what of the Negroes? Surely most of the ex-slaves could pass the test. T h e Nation proposed this as the solution for the test-oath problem. Why, that newspaper inquired, did not the C a b i n e t officers choose their employees in the South ". . . from the two-thirds of the inhabitants who can take this retrospective oath without a particle of perjury, from the ever-loyal blacks?" 2 9 J o h n s o n a n d his Cabinet supporters stood in firm opposition to such appointments. T h e y did not feel that Negroes were qualified for responsible posts.·"' Some Southerners tried to convince J o h n s o n that he should hire Northern men rather than antagonize Congress by violating the testoath law. T h e s e residents of the S o u t h also desired the resumption of federal services which the test-oath requirement delayed. In Charleston, the residents advocated the employment of a U n i o n veteran, a recent i m m i g r a n t to South Carolina, as District Attorney. T h e y so desired the reopening of the federal courts ". . . that even the appointment of a Northern m a n to that office would give satisfaction." 3 1 A New Yorker became Norfolk's Confiscation Agent, a n d represented that district in the national Congress in 1866. 32 I n the Southwestern

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territories, Northerners formed the largest regional group of federal personnel because of the test oath requirement.'" T o Southern Unionists who had remained patriots throughout the war, the modification of the test oath which Johnson's Secretaries proposed was undesirable. Such a modification, they asserted, would prove disastrous to themselves, for it would elevate the ex-rebel to high places. Many in the South were still disloyal, they warned Johnson. It behooved the victorious North to maintain the test oath undefiled. 34 Perhaps the most damaging evidence against McCulloch's contention that he was unable to find enough personnel in the South able to take the test oath comes from a source very close to McCulIoch, from one of the men he had hired in defiance of that law. When that man resigned in June 1866, because of his inability to take the test oath, he was able to recommend his own successor, as well as a whole slate of other persons for federal posts in South Carolina. All these persons were purported to be able to swear to the ironclad test oath. s s It would appear, then, that in certain areas of the South there were men available who could take the test oath. As the months passed into 1866, Northerners who were acceptable to local residents became a growing source of personnel. Why, then, did McCulIoch maintain for so long that he was unable to find men in the South who could take the test oath? T h e answer lies in the reconstruction scheme envisioned by McCulIoch and Johnson. Provisional state governments, under the stimulus of Presidential proclamation, had come into being throughout the South since March 1865. They were manned by conservative whites. McCulloch's policy was to strengthen these governments by appointing to federal office in the South men in sympathy with the Presidential reconstruction plan. McCulloch's appointees could not take the test oath, because, as will be shown, they were usually men who had, in some way, aided the rebellion. T h e political factor governed his selection of these men, for it was no part of the Presidential reconstruction plan to appoint Radically-minded Southerners to office. This does not, necessarily, imply that McCulloch's appointees were of diametrically opposite political conviction. It does mean, however, that the test oath acted as a hindrance to the operation of the Treasury Department because of the executive policy which sought personnel who would be able to conform to the larger ends of reconstruction. McCulIoch capitulated to the Radicals almost completely. He signaled surrender by the issuance of a Treasury circular, prescribing the submission of the test oath for all nominees for office in that department.3® Yet McCulIoch should not be judged harshly. He had, knowingly, broken a Congressional law. But what of those executive department

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heads who had kept that law? Had the operations of Dennison's Post Office Department and Speed's Department of Justice been more efficient than the Treasury? We have seen that they were not. And he must not be judged harshly for another reason. We shall now examine the question of the loyalty of the men who were appointed by McCulloch, men who could not take the test oath because of their past deviation from fidelity to the Union. If, as McCulloch claimed, these men were truly loyal to that Union in a sense not covered by the test oath, may we not assume that the nation's welfare did not suffer from these appointments? T h e presence of many intangibles makes itself felt as soon as a consideration of the question of the real loyalty of the men McCulloch appointed is begun. Can one define loyalty in a way which will be accepted by everyone? No attempt will be made here to give such a definition. An attempt will be made, however, to ascertain certain limited aspects of the problem of the definition of loyalty within the context of this study. McCulloch had stated that his unsworn employees possessed a real loyalty to the Union and to their duties. It is possible, by an examination of the few extant personnel files in some of these cases, to ascertain the apparent validity of this claim. Did the absence of the required ironclad test oath make the unsworn personnel better or worse functionaries than their colleagues who could take that oath? Was the moral obligation of an oath binding on those who would, or would not, subscribe it? It should be noted that there were federal officeholders in the South who could take the test oath who were something less than a credit to the government. Some of these men had been ". . . appointed . . . by the most radical of the Republican party," during the early years of federal military occupation of New Orleans. Others had been chosen after McCulloch's nonjurors had resigned—". . . appointed only as a necessity." They ". . . have no qualifications for respective positions except that they have not been in the rebel army—unfortunately they have not been in any army," wrote a disgusted Treasury supervisor to Johnson. A ". . . disgrace to the government," summed up his opinion of the men under discussion.37 Here, too, reconstruction policy enters. These employees, able to take the test oath, were ". . . men who I know oppose the President's course in respect to the South, [designed] . . . to commit the Southern people, especially the leading secessionists, on the side of the Government." In this case, which dealt with a large number of Treasury personnel in the South's leading commercial city, the ability to take the test oath marked those in opposition to Johnson's policy. Johnson learned that the nonjurors were superior employees.38

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These were not years when an oath was a thing to be taken lightly by most people; it was a religious age. M T h e conscientious individual with moral scruples pondered his words well before affixing his name to a loyalty oath. Many in the South excluded themselves from federal office rather than chance a lie, rather than compromise with principles. Men of high moral standards, and equally high professional fitness, chose to do without badly needed employment rather than violate the ethics by which they lived.40 In April 1866, McCulloch had submitted to the Senate the names of his employees who had not taken the ironclad test oath, or who had modified it to meet their own conceptions of what their pasts would permit them to affirm. In most cases, the modifications resulted in an affirmation of present and future fidelity.41 This listing provided a clue: would the personnel files of the men named in this report provide the answers for some of the questions which have been raised? One case involved A. G. Baskin of Columbia, South Carolina. He secured employment as a Treasury assessor in July 1865, submitting an oath of future loyalty. What of his loyalty? Baskin did not feel that his past record permitted him to take the ironclad test oath. Yet, more than fifty officers of the 25th Regiment of Ohio Volunteers, then stationed in Columbia, affixed their names to a petition requesting the appointment of Baskin. These battle-tested Union officers affirmed Baskin's fidelity and their confidence in his future adherence to the united nation. According to this document, Baskin ". . . is and has been, from information which we do not doubt and which we believe, a true and loyal citizen of the Ufnited] Sftates]." 42 As an assessor, Baskin was a faithful and diligent employee, but he was among that group of nonjurors whom McCulloch asked to resign in June 1866. 43 T h e case of J . M. Mathews, customs collector at Rappahannock, Virginia, was slightly different. With Governor Pierpoint's recommendation that he was " . . . a man of high intelligence, and I think loyal," and his own statement that he had never held civil or military office under the Confederacy, Mathews received Johnson's appointment in August 1865. Mathews had sworn to the amnesty oaths contained in Lincoln's and Johnson's proclamations; he modified the ironclad test oath so that it, too, referred only to future loyalty. Mathews' activities during the war years which prevented him from taking the ironclad oath in the unmodified form are not clear. But he did not leave his office in June 1866, as did the bulk of those who were unable to take that oath. He did not resign until 1869; there is no record of any criticism of his retention by Congress.44 William H. Vasser was an assessor at Columbus, Mississippi. Ever since his appointment to that office by McCulloch in mid-1865, he had worried over his inability to take the test oath. Even before McCul-

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loch's circular letter of J u n e 1866 reached him, requesting that nonjurors resign, Vasser had determined to give up his post. T h e reason? " H i s inability to subscribe to all the provisions of the 'test oath.' " Attesting to Vasser's technical adequacy for the position, a contemporary wrote: " I n point of fitness and qualifications, no better selection could have been made. . . . Nor can political objection be urged against him, he uniformly and consistently opposed secession, canvassing this section of the state in opposition thereto, was never in sympathy with its leaders, never in arms to support it." Vasser felt himself unable to take the test oath, for he had, ". . . to escape [Confederate] conscription, accepted a commissary's position." Such aid to the Confederacy, even in that nonmilitary function, seemed to Vasser sufficient cause to bar him from the honest swearing of the test oath. Here the subjective definition of past loyalty enters. "Conscientiously he believes himself technically included in the provisions of the 'test oath' and declined taking it as interpreted by himself," it was said of Vasser. Hoping for what was termed "immaterial modifications" in the test oath, Vasser had worked, unpaid, for more than a year. It was for such men as this that McCulloch sought to secure that modification from Congress. Vasser was well "qualified to serve the Government, especially at this political j u n c t u r e . " 4 5 Vasser's Unionism, according to another writer, had long preceded the war years. " F r o m the year 1851, when the question of secession was first agitated, down to the last and final struggle, he was a prominent, active, 8c influential Union man, as understood 8c recognized h e r e . " 4 6 Emerging from these descriptions of Vasser is a picture of an individual whose story must have been common in the Civil War. Here was a man with a consistent history of loyalty to a unified nation. W i t h war a grim reality, with secession an accomplished fact, he accepted a noncombatant post with the rebel forces. His own standards of right prevented him from taking the test oath of unalloyed past Unionism. His neighbors, with the understanding of what fidelity had meant at different times in view of local realities, had no hesitation in labeling him as a very true Unionist. As the United States District Judge for Mississippi stated, ". . . [Vasser] has always been regarded as a Unionist in sentiment." i 7 Vasser, as an assessor, had given ". . . as much satisfaction to the community as could be expected of any officer," it was declared. Maintain him in his post, it was urged: " N o advantage will accrue to the Government by the discontinuance of his appointment." 4 8 But his appointment was discontinued. McCulloch requested Vasser's resignation in J u n e 1866. T h e letter of resignation which Vasser submitted is a document which touches upon many points of interest to this study. Vasser's duties as assessor included the choosing of his own assistants.

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Most of these men had been unable to take the test oath. Vasser attempted to justify his choices. "I had," he said, "but a circumscribed number to select from." In the absence of " . . . suitable applicants willing to subscribe to the 'test oath,' " explained Vasser, "I have adhered to the rule of deference in favor of capacity, integrity, and political conservatism." H a d he been able to find qualified residents able to take the test oath, Vasser claimed, he would have employed them. " T o such," he said, "I am sure I have no repugnance, and would have embraced them long since I could have found them." Of those whose Unionism was of recent date, espoused for material advantage, Vasser wrote, ". . . now that ruin has overtaken the innocent with the guilty, [they] are perjuring themselves that they may feather nests they have wantonly despoiled." Vasser did not know that the request for his resignation was part of a general action; he feared his inability to take the test oath had brought censure upon himself alone. Feeling this way, and perhaps resentful at the course he had been forced to take in resigning, Vasser had maintained a formal politeness throughout the letter of resignation. But when he folded that letter and prepared to insert it into an envelope, his restraint broke. In scrawling script, which betrays the emotions of the writer, he wrote on the folded letter, " W h a t fault is in me?" T h e letter evoked a humane response in Washington. "Tell him," McCulloch penciled on Vasser's note, "there are no charges preferred against him; the letter [requesting his resignation] was a general one, which the Secretary was compelled to write as Congress refused to confirm any one who could not take the test oath." 4 9 Vasser's resignation was effected. Illustrative of the subjective nature of the definitions given to past loyalty, the case of Daniel T u l l a r might well be considered here in comparison to Vasser's. In 1866 T u l l a r was a Treasury clerk. His name had been sent to the House in May of that year, as one who had seen rebel service. In explanation of that service, Tullar wrote, "I have nominally been in Confederate service, though never in active service." It was Tullar's contention that his wearing of the rebel grey did not prevent him from swearing to the ironclad test oath. "I was never voluntarily in such rebel service," he stated; "I was opposed to secession, and to the war which ensued. . . . I have uniformly been in favor of the Union . . . as far as was prudent or practicable under the circumstances which surrounded me." 5 0 T h e case does, indeed, parallel that of Vasser; the difference lies in the opposite conclusions the two men drew from similar circumstances in relation to their respective abilities to take the test oath. T u l l a r was a Texan. At the commencement of hostilities he had been unable to flee to the North because of lack of money to transport

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himself, his wife, and seven children. In 1863, when Tullar was fortyseven years old, the Texas conscription system absorbed him into the state's military service. When the Confederate's ". . . oath was administered," Tullar declared, " I stated publicly that I took it with 'mental reservation and under protest.' " 5 1 For the remainder of the war, Tullar was hospitalized, and saw no service more active than that of a reararea carpenter. T o T u l l a r the safety of his family demanded that he accede to the Confederate draft: "He had known of many men being shot for attempting to avoid the service." After the war, Tullar's Vermont brother-in-law secured him the Treasury post, being assured that Tullar had no compunctions about taking the test oath. There is no record of Congressional criticism of Tullar's decision. He remained on the clerical job until September 1866, when he secured a higher-level post in the same agency. T h e Senate approved his appointment to the latter position without comment." Was Tullar more loyal than Vasser? Congress thought so; Tullar's willingness to take the ironclad oath seemed to satisfy Congress on this point. But the facts show no substantial difference between the two men on the question of past fidelity. In other cases, ascertaining the loyalty of McCulloch's appointees in the South who could not take the test oath is more difficult. Congressional investigating committees sought such knowledge from informants in the South. Major General Dan Sickles, commanding Union forces in Charleston, was asked by the Senate if Johnson's nominees to federal office in the South ". . . are, and have been loyal from the start, and fit men in other respects for the offices they are nominated for?"" Sickles, in turn, secured data on the men in question from local residents of proved Unionism. From one such informant. Sickles learned about F. W. Walter who, although unable to take the test oath, had been hired by McCulloch as a customs appraiser. Walter's name was now (May 1866) before the Senate for confirmation. Of Walter, it was said that his ". . . sympathies were ever with the cause of the rebellion." He had served in the Confederate military forces, as a noncombatant express serviceman. No, Walter could not take the test oath, although ". . . his private character is excellent, his capacity good, and aside from the serious disqualifications of complicity with the rebellion, his fitness for the position he has been filling . . . is unquestioned." " Ε. M. Lazarus had been nominated for a similar office, an office which he, too, had been filling for over a year without having subscribed the test oath. Lazarus was a Confederate veteran, a fact which

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he had never sought to conceal. "Personally," Sickles stated, "he is a very respectable and upright man, and has fair capacity." Would either Walter or Lazarus perjure themselves by taking the ironclad test oath? There was no question in the mind of the informant on this score. Neither ". . . would compromise their good name for the emoluments of office. Neither of them would with their record, take the oath of July 2nd, 1862, for any Office because they would thereby compromise their integrity." For Walter, and Lazarus, ". . . and many others who have performed the duties of Public Officers but who cannot take the oath, their personal characters and qualifications commend them to consideration. T h e question of sympathy and action with the Rebellion is one of quite another character." With this statement, the informant neared the conclusion of his report. His final words were an admonition to the Senate that it should confirm these men in their positions only if no others who could take the test oath were available. 55 Would it be possible to consider Walter or Lazarus loyal? Not in the sense of past loyalty demanded by the test oath. But in the sense of future loyalty which Lincoln and Johnson demanded, these men deserved the term "loyal." In the same sense, W. S. Croft, customs collector in South Carolina, could not meet the test of the ironclad oath. He had been on that job for almost a year when the Senate began considering the confirmation of his interim appointment. Croft's loyalty to the postwar Union was apparently legitimate; his fidelity to his official labors was widely approved, even by political opponents. His past record of allegiance was of a different sort. A Treasury official in 1861, Croft had maintained the same office under Confederate rule, apparently willingly enough. He had been instrumental in having his deputy, who remained adamantly pro-Union, imprisoned. 58 However, Croft did not lay claim to past fidelity; his loyalty was for the present and future. Croft, Walter, and Lazarus were among those whom McCulIoch asked to resign in mid-1866. Reminiscent of the case of Vasser was that of the Assessor at Mobile, J . McDowell. He described his pre-1861 political convictions: " I was not a Fire Eater, or Disunionist, but opposed disunion with all my might." But with secession, " . . . I as well as every other Union man was driven to the wall." McDowell admitted that he ". . . did give aid & sympathy to Rebels & their suffering families—and I did voluntarily obey the laws of Alabama & of the Confederate Government." McDowell felt that there had been no choice for him in 1861. "Everything I had was in Alabama," he wrote; " I was too old to leave the country." But McDowell, who had remained a civilian throughout the war, felt that he was incapable of taking the test oath. "Having lost

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nearly everything I had in this w o r l d , " he stated, " I do not want to go b a n k r u p t into the next, with the b r a n d of perjury on my b r o w . " H e r e , again, it was McDowell's subjective o p i n i o n c o n c e r n i n g his own ability to take the test oath which is the c r u x of the m a t t e r . T h i s o p i n i o n was not shared by McDowell's superior officer, who wrote to M c C u l l o c h , ". . . in my opinion [ M c D o w e l l ] would be justified in taking the oath, but he thinks otherwise. . . . H e opposed Secession strenuously, till it was accomplished when he s u b m i t t e d to the then government." 1 ' 7 I f McDowell's past Unionism was of a high order, what of his postwar fidelity? H e had collected more t h a n three million dollars in taxes from his district, " . . . with no word of c o m p l a i n t from any person against m e . " Others described M c D o w e l l as a " . . . m a n of integrity. . . . H e is well known throughout the District 8c enjoys the entire confidence of the People fe businessmen." A group of these businessmen described as " . . . the most p r o m i m e n t m e n in M o b i l e , " j o i n e d together to sign a petition for McDowell's retention in his T r e a s u r y post. B u t these appeals were doomed to failure. Despite the fact that J o h n son himself wrote to McCulloch, "Special a t t e n t i o n is called to this case," McDowell, too, was forced to resign in J u n e 1866. 5 8 As the war neared its end, Salmon P. Chase was asked, " W i l l oath and testimony m a k e Southern m e n l o y a l ? " 5 9 F r o m the evidence which has already been presented, and from data which will be offered in forthcoming chapters, one may conclude that the answer is no. W e r e Vasser, McDowell, T u l l a r , and the others we have discussed made more or less loyal by their willingness or unwillingness to consider themselves qualified to take the test oath? M c C u l l o c h did employ loyal men; of that there seems little doubt to this researcher. N o t all Southerners, or residents of any other place, were as conscientious as were some of the m e n whose actions have been described in these pages. Violations of loyalty oaths were common occurrences, by Unionists as well as rebels." 0 W e now asked the question which T h e o p h i l u s Parsons asked in 1864: " W i l l an unprincipled man be e n t a n g l e d by an o a t h ? " 6 1 Does the answer rest on the premise that no better means existed to ascertain presumptive fidelity? T h i s was the o p i n i o n of a contemporary pamphleteer, H . C. Deming, who wrote: An oath of allegiance may not be an infallible mode of discerning between those who will faithfully and sincerely support a Government and those who will desert and betray it; but who can at present propose a better test? . . . In the 19th Century, and with our present imperfect means of penetrating men's real purposes, we must rely upon the old-fashioned oath of allegiance as the best criterion of their rectitude or want of it. It . . . must be used in

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the reconstruction if we are to commence the work of renovating by separating the true from the fake, the loyal from the disloyal. 6 '

Or is the answer in the flat rejection of the efficacy of such tests of allegiance, as the Nation suggested: An oath just is of no use simply as a test to past conduct. An oath to bear future allegiance has . . . never kept anybody from . . . joining in the insurrection at the South solely because he has sworn allegiance to the Federal Government. We may by test oaths keep rebels from participating in the government in the present. We cannot by test oaths bind rebels to good behavior in the future. 63

The answer is in neither of these opinions on the worth of loyalty oaths, or it might be better to say that these opinions are irrelevant to the real issues involved. These issues were firmly rooted in the political struggle of the post-Civil War years. The Radical Republicans insisted upon the efficacy of test oaths, demanded that all federal employees swear to such oaths, proclaimed the Union once more in danger were oath tests ignored. Yet the same men denied the utility of a loyalty oath which issued from the President's office, criticized Lincoln and Johnson for presuming that the executive amnesty oaths could serve as a catalyst changing the once-disloyal into the present-loyal. Thus could Gerrit Smith, when ". . . speaking of the exclusive rights of the loyal . . . not include amongst them those who purge themselves of disloyalty by listening to a few words and kissing the Book. No such farcical ceremony as that should be allowed to transmute an enemy into a friend."®4 It all had very little to do with the question of loyalty. Rather, as Charles Sumner stated, the ironclad test oath had become the political property of the Republicans; its maintenance marked the Radicals from Johnson's followers." The Radicals had triumphed, by June 1866, in the struggle to have that oath enforced upon all federal personnel. That struggle was but one of many which took place on the battleground of the loyalty oaths of the Civil War.

8

V A C A N T CHAIRS

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The worst that the people of the South anticipated was being brought back into the Union with their property gone and their wounds yet smarting. THOMAS NELSON PACE*

WHAT T H E T W O

HOUSES

[ O F CONGRESS] W I L L DO IN REFERENCE

TO

the test oath now required to be taken [by Congressmen] . . . is unknown to me, and I do not like to p r e d i c t " — i t was November 1865, as the President of the U n i t e d States wrote to his Provisional G o v e r n o r of South Carolina. 1 W i t h i n a week, the T h i r t y - n i n t h Congress would meet to legislate for postwar America. W a i t i n g for it were Congressmen-elect from the ex-rebel states, seeking to forge the final link which would join the South to the Union. Eleven defeated states had accepted the verdict of battle and set u p new governments based on J o h n s o n ' s reconstruction plan. T h e y h a d taken the oath of future loyalty he had prescribed, and elected Congressmen who now awaited admission into the national legislature. 2 I f Congress admitted the Southern delegations the war was indeed over, the nation reunited, and reconstruction completed. I f Congress did n o t — t h a t was a question on which the immediate future of the n a t i o n depended. It was also a question on which the future of the R e p u b l i c a n party depended. R e p u b l i c a n d o m i n a n c e would end if Southern Congressmen j o i n e d with N o r t h e r n Democrats, and were j o i n e d in turn by conservative R e p u b l i c a n s who were increasingly weary of R a d i c a l policies. 1 In anticipation of this moment R e p u b l i c a n supporters had considered means of keeping ex-rebels from representation. H e n r y W i n t e r Davis a n d Charles S u m n e r thought of depriving rebels of their citizenship forever. 4 Davis, in 1864, found the ironclad oath of past loyalty a suitable basis for the franchise when he and Ben W a d e framed their reconstruction plan. R o b e r t Dale Owen, early in 1863, wondered if the North would commit the " f o l l y " of permitting ex* "The Southern People During Reconstruction," Atlantic 1901), 293.

Monthly,

LXXXVIII

(September

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rebels to vote on the basis of an oath of future loyalty. Owen warned that chaos must ensue from such a course. 5 W h e n Lincoln announced his reconstruction plan, it seemed to Northern critics that the simple oath Lincoln prescribed was an obvious invitation for the old planter class to continue in power after the war. Republican stalwarts rejected the idea that a state reconstructed by Lincoln's plan would expect equality with the loyal Northern states. Many Northerners professed little faith in rebels' oaths, fearing that Southerners would swear merely to gain political control.® Republican Congressmen must prevent this. " W e [Union soldiers] can manage the traitors in our front," wrote a battle-tested veteran to T r u m b u l l in 1864, " i f you will keep them out of the Legislative Halls of our Government." 7 Charles Sumner and Wendell Phillips urged the North to be cautious before admitting the South to representation. 8 T h e first year of peace confirmed the worst fears of the Radicals. Ex-rebels qualified themselves for officeholding and voting on the basis of the Presidential oath. W o u l d all Southerners, as Whitelaw R e i d predicted, enfranchise themselves by this easy method? 9 T h e Radicals were determined that this should not occur, determined, as Carl Schurz learned from Sumner, that " N o state will be allowed a Representative in Congress unless under government founded on the consent of the governed and Equality before the law. . . . And the disorganized States may make up their minds to the consequence." 1 0 T h e Radicals needed a tool with which to translate determination into action. T h e y found it in the ironclad oath. During the recess of Congress in 1865 the Radicals had critically observed Johnson's reconstruction activities. T h e y had been particularly irked by McCulloch's violation of the test-oath law in Southern appointments. T h e y found a similar cause for anger in the personnel who staffed Johnson's provisional state governments in the South. For these men, technically, were federal employees, paid out of the funds of the W a r Department. Yet most could not take the ironclad oath, and their appointment was a direct violation of the oath requirement. T h e only oath which most of the personnel of the provisional governments had taken was Johnson's amnesty o a t h . " For Southerners, the Presidential oath was the prerequisite for participation in reconstruction, voting, and officeholding. When Johnson stated " t h a t all responsible positions ought to be confined . . . to men who are loyal," he meant those who had taken the oath of future loyalty which he had prescribed. 12 In the same spirit, Johnson's governors in the South made the subordinate appointments to state offices. By choosing their personnel from among pardoned ex-rebels the governors were quickly able to resume civil functions in their states. T h e y aided Cabinet officers in choosing

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local men for federal offices. And they initiated elections for constitutional conventions in each state, and for representatives to state and national legislatures. 13 But it was too easy. For four years, Northerners had been learning to hate traitors. Here they were—fresh from gray battle dress, representing states so lately in rebellion, demanding equality with the loyal Northern states in Congress. T h e i r credentials consisted of a Presidential pardon and an election certificate from a state but lately in arms against the Union. Could the North trust these men? 1 4 Many Northerners were divided on this question. It seemed to some, as to the owner-editor of Littell's Living Age, that loyalty was becoming infamous in the South. It seemed to a New York Times correspondent that Johnson's policy must destroy those in the South whose Unionism had survived the war. 15 For it was obvious that Johnson's men were ex-rebels—it did not appeal to Union veterans to see recent enemies in high positions. 16 Johnson's course seemed reasonable to other Northerners—the aged James Buchanan, the humane W h i t m a n , the youthful Charles Francis Adams advocated leniency towards the defeated South. 17 B u t the results of the Southern elections in 1865 seemed to justify the fears of the Radicals and refute the arguments of moderate Northerners. In almost every instance, prominent ex-rebels won the electoral contests for Congressional scats. T h e clcction results played directly into the hands of the Radicals, for these Congressjnen-elect could not take the ironclad oath. 1 8 By this folly, the South paved the way for Radical victory in the reconstruction struggle. Perhaps it was natural that Southerners should vote for leaders of the lost cause. I n retrospect, at least, the war was already an heroic adventure. 1 9 B u t political discretion dictated a different course in the troubled waters of postwar politics. And discretion in this instance prescribed that Southern Congressmen-elect should be able to take the ironclad test oath. Johnson saw this clearly. He urged Southern legislatures and the Southern voters to select men for Congress who could swear to their past fidelity to the U n i o n . His traveling representative in the South, Η . M. Watterson, brought this message to Southern political leaders. Watterson reported: I sometimes tread on the toes of an aspirant, but I can't help that. It is best that they should know the truth in time not to put themselves in a position where the Congressional door may be slammed in their faces. . . . This is a time when no Southern man should suffer his political aspirations to become a stumbling block in the way of a speedy return to old Federal relations. 2 0

Generally, the President's warnings went unheeded. A few candi-

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dates did withdraw their names at Johnson's suggestion, in favor of men able to swear to the test oath. T h e usual response, however, was for Southern legislatures to pass resolutions advocating repeal of the test-oath law." One cause of the Southerners' intransigence on the test oath lay in their confidence that Johnson would make Congress repeal that requirement. A seemingly spontaneous rumor to this effect achieved wide circulation in the South in the last months of 1865. Variations on the rumor had Johnson himself doing away with all federal tests of past fidelity. No one specified how Johnson could do this, or why Congress should agree to end the test-oath law. And the rumors were wrong.22 It was the result of such confidence which was important. For many Southerners it was easy to believe that the test oath would prove no bar to ex-rebel Congressmen. Certainly the Southern elections resulted in general and overwhelming defeat for candidates who could take the ironclad oath. Only the Southern Unionist could honestly swear to his past fidelity to the Northern cause, and it was not the Unionist whom the mass of Southerners desired to elect. Sidney Andrews heard from Georgia's Benjamin Hill the latter's determination to "vote for no man who could take the Congressional test oath, because it is the highest evidence of infidelity to the people of the State." 23 Another traveler in the South, J . T . Trowbridge, advised Southern friends to choose men able to meet the test oath. He received this reply: "We would not vote for such men. We had rather have no representatives at all . . . no man represents us who can take your test oath." 24 Since Southerners felt thus, the test oath seemed to many the heart of the reconstruction issue. T o the Richmond Enquirer, the ironclad test oath made "of Johnson's Reconstruction a mere mockery." 25 And to Jonathan Worth, "It would be as satisfactory to the great body of our people to exclude us absolutely from Congress as to limit us to the selection of men who can take the test oath." 26 He would rue these words. In the summer of 1865, Southerners were optimistic concerning the success of Johnson's reconstruction efforts. But some were less sanguine, and were deeply concerned about the test-oath requirement. Johnson received many communications on the subject throughout the year. His Southern correspondents wanted to know if Congress would demand the oath of all their delegations. Johnson could not answer the queries. B. F. Perry, South Carolina's Provisional Governor, expressed his fear that the South must do without representation if Congress insisted on the oath. Yet Perry was one of the rumor-spreaders, one of those who encouraged the belief that Johnson would somehow do away with that oath.27 Perhaps the median Southern position was that expressed by some

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obscure Virginians, who suggested to Johnson that he recall every Southern Congressmen-elect who could not take the ironclad oath. In this way, "Angry and Excited Wrangling may be avoided." 28 Similarly, the Richmond Whig counseled moderation, for though its editor agreed that the oath was unconstitutional, expediency dictated that the South conform to it. " I t is no use," he wrote, "for us to be guilty of the folly of butting our heads against immovable walls."™ Southern Unionists were particularly concerned over the test-oath issue, as the December meeting of Congress neared. They knew Johnson's determination to end federal control in the South as quickly as possible, and they heard the rumors of his plan to do away with the test oath. And when defeat met the candidates able to swear to past loyalty, it seemed to the Southern Unionist proof that Congress must maintain the oath inviolate. They wrote to Johnson, pleading with him to uphold the oath requirement. If Johnson did this, Southern Unionists would know that he supported them. T h e Negro would find justice in the South only if men of unimpeachable past loyalty held office. But if the oath fell, no Unionist, white or black, could thereafter live in the South. 30 And although Southern Unionists admitted that the oath ". . . will keep our best men out of Congress," they felt the results worth the cost. According to these arguments, there were plenty of Southerners who could take the test oath, and the South must choose from among them for its officials." Similar sentiments went to prominent Radical legislators, predicting dire consequences if Southerners gained admission to Congress without first hurdling the test-oath barrier. 32 Johnson knew that he could neither maintain nor repeal the test oath. He would avoid the issue, if possible, by having men able to take the oath represent their states in Congress. For Johnson hoped to achieve his reconstruction aims and still avoid a definite clash with Congress. Consistently, Johnson acknowledged that each House of Congress was the proper judge of the qualifications of its members. But he maintained also that such judgment must be limited and ministerial. If Southern Congressmen-elect had proper credentials, and could take the oath, Johnson felt that Congress could not fail to admit them. He was concerned because many of the Southern delegates were obviously unable to swear to past loyalty—there could be little doubt in the cases of Alexander H. Stephens and Herschel V. Johnson. But he knew that there were some who could take the oath, and upon these the President pinned his hopes." T o achieve the fullest support for his plan Johnson urged the Southern delegations not to appear in Washington until after Congress convened. In this way he would force Congress to consider each case on its individual merits. When Congress admitted even one

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Southern Congressman, Johnson's reconstruction would be complete in fact and in theory. Then all the Southern states could hold new elections and choose representatives who could take the test oath. M But overconfident Southerners ruined whatever chance the plan had for success. Almost every Southern delegation appeared on the scene as Washington filled with Congressmen ready to begin the first postwar legislative session. T h e Southerners boasted that the test oath would not bar their admission to Congress, that it was unconstitutional, and that Johnson had guaranteed them admission despite the oath law." They underestimated their Radical opponents. Naturally, the Radicals were aware of the situation, and they knew that some Southerners could take the test oath. T h e i r chief concern was in the Tennessee delegation, for in the presence of such men as Horace Maynard, that group contained several men who were unquestionably able to take the test oath." For the purpose of the Radicals— the total exclusion of the Southern delegations from Congress—the test oath needed reinforcing. A law and a man provided the Radicals with the needed tools. T h e law was one of March 3, 1863, which gave to the Clerk of the House authority to assemble the roster of Representatives-elect whose credentials were satisfactory.·" T h e man was Edward McPherson, the House Clerk, and an admitted Radical. Johnson's supporters were confident that McPherson's function in assembling the roll was purely clerical. McPherson made it much more important. T h e House convened on December 4, 1865, the crowded galleries quieting when McPherson began reading the roll. T h e name of no Southern delegate appeared on the list. Surprised and angry, Southern Representatives protested to Schuyler Colfax, Speaker of the House. He cut off the protests: " T h e Clerk cannot recognize as entitled to the floor any gentleman whose name is not on the roll." 3 8 Southerners would have no chance to swear. Losing no time in solidifying the Radical advantage, Thaddeus Stevens won acceptance for the Joint Reconstruction Committee. It would decide when the South was entitled to representation. T h e Radicals had won, Johnson's reconstruction policy was effectively defeated.39 With this victory behind them, the Radicals returned to the test oath as the basis for their exclusion policy. T h a t oath remained the essential difference between Presidential and Congressional reconstruction plans. When Colfax asked, "Which shall govern the councils of the nation, loyalty or disloyalty?" Radical policy had a ready answer. It would be loyalty—a loyalty which Radicals equated with the ironclad oath. 40 Contemporary observers noted that:

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MO ACCOMMODATIONS 1 SOUTHER* COXOBESSMAK ELECT TO CLERK OF THE HOUSE. " I should Ilka very much to ««care my Old Seat. Governor Perry says I'm entitled to it." CLERK OF THE HOUSE. " I am very sorry, Sir. but we can not accommodate you. All tlie Old Seat* w»»e broken up, and are now being thoroughly lieconitructed." F r o m Harper's

Weekly,

I X (December 9, 1865), 781.

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The Congressional test of a "loyal representative" was his ability to take the [ironclad] oath of office. . . . This oath both in its letter and spirit is in utter antagonism to the policy of Mr. Johnson. Probably not half a dozen of the claimants for seats from the South can take it without committing perjury. . . . How, then, can any loyal man be surprised that the breach between Congress and the Executive was not healed? There was an irreconcilable difference between the two. . . . It could have been healed only by the former consenting to abandon the whole question of reconstruction to the discretion of Mr. Johnson. 41

But the Radicals could not permit Southern Congressmen-elect to decide for themselves if they could honestly take the test oath. This would have played directly into Johnson's hands. Certainly, acknowledged Radical spokesmen, some Southerners could swear to past loyalty. Was it not at this very time that Radical leaders were criticizing McCulloch for using nonjurors in Southern Treasury posts? Logic demanded the next step. The Radicals would themselves judge the real past loyalty of applicants for seats. If the applicant met their standards, they would admit him, offer him the oaths of office. If he did not, the Radicals would withhold the oaths, and give no cHance for swearing, whether true or perjured. For the Radicals to permit Congressmen-elect to decide for themselves if they could take the oath "would have been a virtual abandonment of the vital point in this dispute; . . . giving up to the enemy the key to the whole position." 41 The Radicals appointed themselves censors of the past of each applicant for a Congressional seat. Each case could be used to further the party cause, to secure the statutory guarantees the Radicals determined were minimum requirements for readmission, until the South "would give adequate guarantees that it had abandoned the principles of the Rebellion and would henceforth abide by the amended Constitution." Until then, "Congress would have stultified itself in admitting any [Southern] man however loyal." 43 Radical spokesmen had an easy rationalization for their course. They referred to the many Southern expressions of determination to repeal the test oath as soon as the South gained representation. In any case, were not Southerners' oaths valueless? Reason demanded that Congress test the loyalty of applicants for admission in order to buttress a loyalty oath.44 In the early months of 1866, there was still hope for a reconciliation between Johnson and the Radicals. Radical terms were strict—Johnson must abandon his reconstruction policy completely. But the President would not surrender. 46 During this period Johnson's supporters remained optimistic about the possibility of Congress admitting the Southern delegations. It was a major topic in Washington, and it echoed across the nation. Johnson, Seward, and McCulloch made public addresses, in which they vigorously reasserted the President's posi-

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tion—Congress must admit delegates who bore proper credentials and who were willing to take the test oath.*" Radical leaders had different plans. They launched their program—the Freedmen's Bureau Bill met the President's veto and the break between Johnson and Congress was wider. 41 Playing their t r u m p card, the Radicals made the Fourteenth Amendment the alleged condition for the restoration of the ex-rebel states, in mid-1866, Tennessee ratified the amendment, and the state's Congressional delegation once more appeared before Congress. Almost everyone assumed that all of Tennessee's Congressmen-elect could take the test oath.·48 Tennessee was bait for the rest of the South; it was no part of Radical strategy for the ironclad oath to exclude any of her Congressmen now. David T . Patterson, Senator-elect from Tennessee, son-in-law of Andrew Johnson, presented his credentials to the Senate on July 26, 1866. As Patterson prepared to swear to the ironclad oath, Sumner interrupted the proceedings. According to Sumner, Patterson had held office under the Confederate authority and was disqualified under the oath statute. But Patterson insisted that he felt perfectly free to take the oath, although he consented to Sumner's demand that the Senate Judiciary Committee, numbering Sumner among its members, investigate the case and decide on Patterson's ability to swear to past loyalty. Democrats and conservative Republicans protested against Sumner's resolution. What right had anyone, they demanded, to inquire into a man's ability to take the oath? If Patterson perjured himself, the Senate could prosecute him for that offense. Democrat Reverdy Johnson caustically pointed to the contradictions in the case; Congress had pronounced Tennessee fit for representation and now would deny it. Republican Grimes of Iowa feared the precedent Sumner's resolution would set. Could not unsupported allegations bar other Senators in the future?" T r u m b u l l supported Sumner. T h e Illinois Senator demanded a realistic approach to the debate. T h e nation's bloodiest war was so recently won. What if Jefferson Davis appeared before Congress with proper credentials from Mississippi? Would the Senators approve his admission if Davis evidenced his willingness to take the ironclad oath? No, Congress had machinery to handle the representatives of the exrebel states. If Senators did not inquire into Patterson's past to see if he was fit to take the oath, that test was no bar to the entrance of "Confederate brigadiers" into Congress. There was no danger which Sumner's resolution might create, since the purpose of the resolution was just. 50 Sumner's resolution won—Patterson was to remain excluded until the Senate satisfied itself that he could truthfully swear to his past loyalty."

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T h e next day, the Senate Judiciary Committee reported its findings. T h e committeemen agreed to the facts, but divided sharply when it came to conclusions. T h e facts did justice to Patterson's Unionism. In 1861, Patterson held the post of a judge in Tennessee's courts, a position he had filled for more than two decades. At the urging of Tennessee's Unionists, Patterson ran against an avowed secessionist candidate for his seat after his section of the state came under rebel authority. T o his own surprise, Patterson won. T h e harried Unionists begged him to accept the rebel commission and oath of office. Patterson bowed to their urgings, and took the Confederate oath. He had said then that he did not consider it binding, and "he spat upon it and scorned it." 5 2 In his judicial capacity, Patterson aided Unionists, and at the risk of his life supplied information to local federal military forces. Patterson felt that his Unionism was unquestionable, despite the fact that the ironclad oath's terms and his incumbency in a rebel office were incompatible. Trumbull, chairman of the Senate's Judiciary Committee, found no argument in the facts, but he felt that they did not permit Patterson to take the ironclad oath. Yes, Patterson had been truly loyal, but he had held rebel office. Now it was Trumbull's turn to warn the Senate against precedents. If Patterson could take the oath, so could Alexander H. Stephens, who also claimed that he had served the Confederacy in the interests of saving his concept of the Union. 53 T h e Radicals faced a real problem in Patterson's case. They had promised Tennessee (and, by implication, the South) admission to Congress if the state ratified the Fourteenth Amendment. Tennessee had complied, but one of its Senators could not take the oath. But if the Senate excluded Patterson, would it not seem a violation of the Radical promise? Yet the test oath was also a basic Radical tenet. Could they dismiss it in order to admit Patterson to his seat? Trumbull arrived at a solution which seemed to meet his party's needs. He pointed to the third section of the Fourteenth Amendment, then before the states for approval. By the terms of that section, Congress could remove political disabilities from the ex-rebels it pardoned. Trumbull proposed a joint resolution, removing Patterson's disabilities in the spirit of the Amendment, and providing a modified oath of future loyalty for him. 54 It was a shrewd move. Trumbull's proposal underlined the attractiveness of the Fourteenth Amendment to the South, and retained Congress' asserted right to satisfy itself on the reality of an applicant's past loyalty. All that suffered was the letter of the test-oath law. T h i s disturbed some Radicals, but most were willing to go that far in order to complete Tennessee's restoration. Yet it was at this time that Congress rejected McCulloch's pleas for a similar modification of the test

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oath for federal employees. Only in the light of political needs were the Radicals consistent. T h e Senate vote on T r u m b u l l ' s resolution revealed the conflicting Republican attitudes on the test oath modification. T h e only two negative votes were W a d e and Chandler's, to whom the test oath was too sacred to warrant modification. Sumner preferred to absent himself from the balloting, along with eleven other Republicans. And T r u m b u l l found himself voting in concert with most of the Senate's Democrats, when thirty-five votes carried his resolution! 5 5 T h e House began consideration of the resolution immediately; it was the last day of the session and haste was necessary. Tennessee'* Maynard, already sworn in, sponsored the measure, and substantiated Patterson's wartime Unionism. B u t in the House, too, Republican opposition met the resolution. Successive Republican Representatives spoke against modifying the test oath even for one man. T h e y described the oath as the last bulwark against the return of ex-rebels to power, the barrier behind which Southern Unionists and Negroes protected themselves. Congress must retain it. In a dramatic declaration, Tennessee's Stokes told how he had promised his constituents that he would never repeal the test oath while life remained in him. Ohio's Shallabarger analyzed the resolution, and pronounced it a disguised violation of the law. T h e debate grew heated and tumultuous, as tired Congressmen returned from hasty dinners. Members accused each other of past disloyalty and perjury in taking the test oath. Conkling ended the inconclusive debate, pleading for the tabling of the Senate resolution in order that the Representatives might have time to consider its implications. For himself, Conkling was convinced that the test oath should not be modified. Conkling won his point, and the House tabled the resolution. 5 6 In effect, the Senate would have to bear the total responsibility for admitting Patterson on the basis of a modified oath of office. W h e n the Senate learned of the House's rejection of T r u m b u l l ' s resolution, it denied that Senator his request to resubmit it to a j o i n t vote. But, having once decided that Patterson could not take the unmodified test oath, the Senate now reversed its position and permitted him to swear to the full oath of unalloyed past Unionism! T h e y reached this conclusion only after weary repetition of the same arguments. It was four o'clock in the morning when the Senators voted, and again party lines broke. Most Senators abstained from committing themselves. T h e twenty-four affirmative votes were mainly Republican. T r u m b u l l , Wade, Sumner, and Chandler voted negatively, still convinced that Patterson could not honestly take the test oath. 57 As the Senate finished the last of its business for the session, Patterson swore to the ironclad oath, and took his seat as one of Tennessee's

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Senators. The test oath stood, unmodified. In a real sense, the Radicals had won. By retaining to themselves the decision as to when an applicant for admission could take the oath, they held a whip hand over all delegations. They admitted Tennessee—all the other Southern states remained excluded at Congress' pleasure.58 Congressional reconstruction triumphed before other Southern states gained representation in the national legislature. The test oath was too good an issue for either party to ignore in the "critical" election of 1866. T h e Radicals stressed their belief in the need for the loyalty-testing law, but made no mention of their own willingness to modify that law on occasion. Instead, they equated the Democratic label with a determination to end the test oath, and named Johnson as the chief offender.59 Carl Schurz told a Philadelphia crowd that "the South loudly demands its repeal, and the President is in favor of it." He warned that if Congress admitted Southern delegates who were willing to take the oath, they would immediately repeal the law. Schurz pictured the consequences—Democrats would rescind emancipation, end the Freedmen's Bureau, emasculate civil rights legislation, repudiate the federal debt, and pension all exrebels.60 A Boston meeting resolved that Southerners should have no political rights at all, rather than have the nation face such consequences.81 Perhaps Republicans did not deliberately design to confuse the public about the test oath. They did call the ironclad oath "Mr. Lincoln's loyal oath," although Lincoln himself would probably have rejected the honor. Rutherford B. Hayes made his position clear. Republicans were for the oath, Democrats against it.62 Democrats could less easily adopt a clear-cut position. Johnson himself had never publicly advocated repeal of the oath as a test for Congressmen, but he did demand that Congress restrict its role in administering the oath to a ministerial one. The Philadelphia Convention formally adopted this position—that Congress must admit delegations which bore proper qualifications. But individual Democrats assumed the role which Republicans had assigned to the party as a whole, and forthrightly advocated complete repeal of all loyaltytesting laws.** The Radicals won; the test oath would stand. The vacant chairs in Congress would remain empty.

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The real and true cause of assault . . . against President Johnson was the . . . fidelity of the President to the Constitution, his refusal to proscribe the white people in the Rebel States . . . by ex post facto laws.—GIDEON WELLES*

J - H E

DIARY OF GEORGE TEMPLETON

STRONG, ATTORNEY OF NEW YORK

City, recorded the pride he felt after his first day of pleading before the Supreme Court of the United States. In mid-February, 1866, Strong noted that he ". . . went to the Clerk's office and took the special 'iron-clad' oath that I had never designedly given the Rebellion any aid or comfort, which oath I took most honestly and heartily, with no mental reservation whatever—thank God." 1 Strong's Southern brothers of the bar were, generally, less able to take that oath, and by that inability were barred from practicing law before any federal court. In the first months of peace Southern lawyers begged Johnson's Attorney-General for his opinion—did the test oath apply to them? T h a t official could offer no comment, had to suggest only that interested attorneys wait for judicial opinion, opinion which even then was emerging from national and state courts. 2 For states as well as nation had legislated loyalty into the lives of their citizens during the war years. Several states had enacted special test oaths for attorneys practicing in their respective courts, and from these regulations emerged the first judicial comment on the loyalty oaths of the Civil War. T h e first of these cases arose from the bitter partisanship which marked California's politics. By early 1863 Unionists had won control of the state's legislature and proceeded to create statutory tools designed to exclude pro-Confederates from California's courts.' On April 25, 1863, the legislature passed "An Act to Exclude Traitors and Alien Enemies from the Courts of Justice in Civil Cases." By the terms of this act, a defendant in a suit could challenge the plaintiff's loyalty. Until the plaintiff filed a prescribed oath of loyalty to state and nation, the trial stopped. If he refused the oath after a specified time, • Welles, "Lincoln and Johnson," op. cit., p. 664.

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the court was to dismiss the case forever, nor could the plaintiff's assigns or grantees sue for the same action. T h e prescribed oath was very similar to the federal civil servants' oath of August 1861.4 T h e plaintiff received reciprocal privileges under the California loyalty law. If the defendant set up a counterclaim in a civil suit, the plaintiff could object, charging the defendant with disloyalty. Now it was the defendant's turn to take the oath, or see the court perpetually bar his counterclaim. Finally, the law required the same oath of all attorneys practicing in California's courts. If a lawyer failed to file the oath, he faced a misdemeanor charge, and, if convicted, a fine of one thousand dollars. 5 California's highest court passed judgment on the constitutionality of the latter aspect of the law within three months after its passage. In June 1863, a Los Angeles attorney named Cohen was suing a Mr. Wright for an alleged three-hundred-and-fifty-dollar debt. T h e latter accused Cohen of disloyalty. Cohen refused to file the prescribed oath, which would have permitted his trial to continue. Instead, he waived the period of grace the court would have afforded him, saw the court "forever" dismiss his suit, and appealed to the state's Supreme Court for a review of his case.6 Cohen faced difficulties there too. His attorney, Η. E. Highton, had not taken the required attorney's oath. His recusance afforded the court an opportunity to rule on the oath law as it pertained to attorneys as well as litigants. Nathaniel Bennett and E. W. F. Sloan pleaded for Cohen and Highton. They condemned the oath requirement for attorneys as a violation of state and federal constitutions. Did it not superadd an oath to that which California's constitution prescribed for public officers? And was it proper for California to punish for the federal offense of treason? Cohen's counsel claimed that the oath deprived an attorney of his property without due process of law if he failed to subscribe it. T h e loyalty test made men bear witness against themselves—if one refused the oath, it was a self-declaration of guilt and an automatic assignment of punishment. And the oath violated the obligation of contract between lawyer and client, for the attorney who refused the oath could not fulfill his commitments. T For two of the three judges, Justice R. B. Crocker sustained the California oath without reservation. Point by point, he countered the allegations of Cohen's counsel. T h e fact that California's constitution prescribed an oath for public officers did not prevent the legislators from adding another oath for attorneys, for lawyers were not public officers. T h e attorneys' oath, the California jurist maintained, merely amplified the allegiance which all sovereigns demanded. When an individual subscribed that oath it meant to Crocker that he was cleansed of complicity in rebellion. No self-accusation was involved in such an

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act. An attorney who refused an oath was not excluded from practice because of past criminality; He had merely failed to comply with a legitimate statutory requirement, and must suffer the consequences. Crocker held that the right of an attorney to practice was not property. It was a privilege—one which the state could revoke as it had granted it. Could an attorney bequeath or transfer his right to practice? How, then, could it be property? Also, no impairment of the obligation of a contract existed. Crocker found nothing in state or national constitutions to prevent a state from withdrawing its privileges from traitors. T h u s did he uphold that part of California's law which required the oath of loyalty from litigants. T h e exigencies of war produced the means needed to win the war; the courts reinforced the legislative will by upholding the law designed to rid the state of traitors. 8 Was not Congress reflecting the national will when it passed the ironclad test oath? Surely the federal oath, Crocker somewhat wistfully noted, ". . . was far more stringent than the one under consideration, especially relative to the past conduct of the officer." ' If Crocker could not have the federal test oath to exclude proSoutherners from the courts, he would apply the less rigorous California oath without exception. When treason could find defenders among lawyers, the basis of all government was endangered. Yes, Crocker admitted, loyalty tests and loyal oaths were contrary to what he felt was the free spirit of American government. But for a court to void the oath law required a direct constitutional conflict, which Crocker could not find. T h e court upheld the legality of California's loyalty oath. J0 Far more than California, Missouri had felt the tensions of internal division. A continuing constitutional convention of Unionists met almost throughout the war years. Each year, they prescribed loyalty oaths of increasing severity for officeholders as well as many other classes of people. In 1865, the Radical Republicans won public support for a final draft of a constitution which they themselves had drawn. T h e test oath which that instrument of government contained applied to voting, officeholding, practicing law or medicine, teaching, holding corporate offices, preaching, or acting as juryman. It was an oath which, unlike the California test, inquired into the subscriber's past fidelity as well as future loyalty. And the Missouri oath was probably far more severe in this respect than was the federal ironclad test oath. Every Missourian had to swear to his innocence of eighty-six acts. T o vote, or to hold any of numerous offices, or to practice a profession, he had to state that he had never acted in a hostile manner against any Missouri government. But the tangled succession of events in that state had placed many men in momentary opposition to the government then in power. T h e oath was a two-edged sword for those wielding i t . "

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Alexander J . P. Gareschi was a prominent lawyer of St. Louis, whose practice before the Missouri Supreme Court antedated the war. In September 1865, Gareschi was preparing to open a case before that court when the presiding judge questioned his qualifications, for Gareschi had not filed the required loyalty oath. Over the attorney's protests, the court refused to permit him to argue the case at hand. Gareschi submitted a petition in which he condemned the Missouri oath as unconstitutional; it impaired the obligation of contract, he said. T h e oath was ex post facto and a bill of attainder, Gareschi charged, and violated the safeguards of the federal Constitution. 1 2 For Missouri's highest court, Judge Nathaniel Holmes rejected Gareschi's plea. Holmes considered that no impairment of the obligation of a contract had occurred because of Gareschi's exclusion from court. All states and the federal government regulated the attorneys who practiced in their jurisdictions. Missouri's oath was a legitimate extension of such police power, and could not be ex post facto, for such a characteristic adhered only to criminal cases. Nor could it be a bill of attainder, for no punishment adhered to Gareschi without the protection of a trial. T h e lawyer had refused to conform to a statutory requirement and must accept the results. 13 In every way, the Garesche decision substantiated California's Cohen case. But the Missourian was not satisfied with the treatment he had received. When the United States Supreme Court convened for its December 1865 term, Garesche placed a petition before it, asking for higher review of the decision. T o justify his appeal, Gareschi alluded to the intense interest which all those in the legal profession felt in his case. T h e central issue was the power of a state to regulate its internal affairs entirely without hindrance. But if Missouri's oath did not merit judicial censure, Gareschi believed that despotism could reign unchecked in every state. 14 T h e oath was ex post facto, Gareschi stated. It did not come into force until two months after Lee's forces had laid down their arms. How could Missouri justify the use of a wartime loyalty measure after the war was over? T h e oath punished for acts committed when they were not statutory crimes. Similarly, the oath acted as a self-punishment, convicting the nonjuror by the act of refusing to take the test of loyalty. Nor were Missouri's jurists correct when they considered the oath a mere qualification; the oath set a penalty rather than a standard of conduct. 15 Continuing his condemnation of Missouri's oath, Gareschi charged that it illegally punished for the federal offense of treason, and destroyed the rigid Constitutional definition of that crime. For the Missouri test enumerated many thoughts and deeds which were sufficient to disqualify a citizen from office or ballot, and which were equated

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with treason. N o one, least of all Garesche, could argue that age, education, and stability of character were beyond a state's ability to control as proper qualifications for its attorneys, but Garesche challenged t h e state to produce a definition of past loyalty which would satisfy everyone. 1 6 T h e Congressional i r o n c l a d oath held no terrors for Garesche. T h a t o a t h was created under Congress' proper powers. It embraced classes of persons legitimately w i t h i n those powers. And compared to Missouri's oath test, the federal loyalty oath was succinct. Garesche feared the t r e n d — i f Missouri could m a i n t a i n her loyalty test, then nothing in the state was beyond governmental interference. 1 7 T h e whole affair rested on the shifting sands of partisan politics. R e p u b l i c a n s interpreted the oath provision requiring past loyalty to all Missouri governments to m e a n "administrations." T h e result? Democrats lost their votes and influence. Missouri was a border state, her people divided, her homes supplying both sides, her sons dying for both flags. Such an oath as Garesche was testing could only have partisan results. 1 8 Garesche's exhortations were to go unheeded; the nation's Supreme Court refused his petition for a review of the Missouri loyalty oath. At this very time, however, the Court was considering two cases which covered similar legislation. O n e of these cases involved a different application of Missouri's loyalty o a t h — t h a t pertaining to ministers. T h e other concerned the federal ironclad test oath as it applied to attorneys practicing in federal courts. W i t h Garesche's approval, the court postponed his case in favor of the other two. 19 B u t before the nation's Supreme Court expressed its views on the test oaths, tribunals of lesser stature heard several cases on this subject. A n o t h e r state loyalty o a t h for attorneys arose from the complicated W e s t Virginia history of the war period. I n November 1863, that state's legislature ordained for its attorneys the federal ironclad oath of office as a prerequisite for practice. Refusing to subscribe the test oath, in January 1866 Charles J . F a u l k n e r petitioned the state's Court of Appeals (its highest t r i b u n a l ) for leave to practice. 2 0 F a u l k n e r possessed all the professional r e q u i r e m e n t s necessary to meet West Virginia's standards. As had Cohen in C a l i f o r n i a , and Garesche in Missouri, F a u l k n e r saw the test-oath r e q u i r e m e n t as ex post facto legislation. H e termed it punitive, repugnant to civil liberties guaranteed by the federal Constitution, and an excessive expression of the legislature's powers. B u t Faulkner had an advantage not available to the others who had protested against their respective states' attorneys' oaths. For, since West Virginia's oath was a direct copy of the federal test oath, F a u l k n e r concentrated on the p o i n t t h a t attorneys were not embraced by the

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latter act. The Congressional ironclad oath at that time (1863) applied only to public officers. West Virginia's application of that act should, therefore, apply only to state public officers. Were attorneys public officers? No, said Faulkner, attorneys were neither military nor civil functionaries. Had not Clay, Webster, and Pinckney practiced in the courts of states and nation while Senators? They could not have if the practice of law was contained in the definition of civil officers of the United States. Faulkner insisted that attorneys were officers of the courts in which they practiced, and not public officers." For the state, W. W. Peck attempted to refute Faulkner. Peck pleaded for a consideration of the needs of the hour when the 1863 act was drafted. Disloyalty was a crime then, a crime which threatened the foundations of the fledgling state. And its memory must remain criminal even after peace replaced the years of war. Adding to this emotional appeal, Peck sought to refute Faulkner's legal criticisms of the state oath. Peck held that an attorney possessed an "office or trust" of sufficient importance to warrant inclusion under the test oath's provisions. Admitting that a technical differentiation might be made between an attorney and a public officer, Peck showed little respect for academic hairsplitting. Attorneys, if disloyal in the past, could not deserve privileges in the future.22 Speaking for two of the three-man court, Justice James H. Brown decided for Faulkner. Brown would consider but one point—was an attorney a civil officer within the meaning of the test-oath act? He found his answer not in legal precedents, but in contemporary Congressional legislation. \Vest Virginia had taken Congress' 1862 test oath and applied it in that state. In 1865 Congress had specifically extended the 1862 act so that it embraced attorneys practicing in the federal courts. Did this not mean that Congress implicitly acknowledged the fact that the 1862 act applied to all federal officers, but not to attorneys? If the 1862 test oath applied to attorneys, why had not all federal jurists applied it in their courts and avoided the necessity for Congress to pass the 1865 amendment? Brown agreed that Virginia practice has always held attorneys to be officers of the courts and not of the state. The act, Brown stated, ". . . though perTiaps not strictly ex post facto, is penal in its nature and retrospective in its operation." Therefore, it was best to apply it strictly, and since attorneys were not named in the law, they were not subject to that law.23 Faulkner had won for the moment. The court admitted him to practice upon the subscription of a simple oath of fidelity to state and nation. But the decision threw the dominant Republican partisans of the state into angry activity. The legislature decreed that attorneys were public officers, subject to the test oath, and that voters, too, must

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swear to their past fidelity. Thus, for two reasons, the Faulkner case could not assist those who, in 1865-66, were seeking judicial precedents to prove the unjustifiability of test oaths for attorneys. First, the decision resulted from an uncommon situation: the state had copied Congress' oath. This situation appeared in no other state. Secondly, the quick action of the state legislature in altering the law after the Faulkner decision overshadowed the decision in the minds of most contemporaries.'· 5 T h e contemporary searcher for judicial opinions on loyalty oaths would not, in early 1866, stop with state court decisions. T h e federal ironclad oath had also faced judicial scrutiny in the year after the war. And it brought into court with it the undercurrents of the fight for leadership in the reconstruction process. T h e lower federal courts, unwillingly perhaps, found themselves participants in that fight, for their decisions on the test oath must support either Congressional law or executive policy. Congress had as the basis of its power over the South its right to exclude delegates. T h e President, conversely, had the pardoning power, which both Lincoln and Johnson used as the first step in executive reconstruction. 15 How far did the President's pardon go in cleansing its recipient of the taint of rebellion? .Had the President the power of amnesty? Did the recipient of Johnson's pardon find himself on a political footing level with the ever-loyal Northerners? Andrew Johnson would answer "Yes" to this question. T h e President did demand that pardon-seekers subscribe the amnesty oath of future allegiance. H e conferred with his Attorney-General in order to arrive at a satisfactory definition of the effects of a pardon on its recipients. 26 They agreed with John Marshall that "a pardon is an act of grace . . . which exempts the individual on whom it is bestowed . . . [from] the punishment the law inflicts for a crime he has committed." In terms of the situation in 1865, a pardon exempted its recipient from "death, punishment, or confiscation . . . which the law attaches to the commission of the pardoned crime." 27 Johnson consistently applied this definition. We have seen how he recruited the provisional state administrations from pardoned Southerners. If residents of ex-rebel areas took the amnesty oath, they insured their property against confiscation. 28 Attorneys in the courts which the provisional state governments organized practiced on the basis of their executive pardons.2® Radical Republicans did not agree with this broad view of Presidential pardons. By 1866, they exerted their efforts to prove Congress' leadership in reconstruction. In preceding years, however, Congress had been willing to give full freedom to the executive pardoning power as a war measure. In the Confiscation Act of July 13, 1862, Con-

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gress specifically gave to the President powers of pardon and amnesty. However, Lincoln consistently maintained that his pardoning power was dependent upon no Congressional grant, but was inherent in the Constitutional bases of the executive office. Both Lincoln and Johnson found in the power to pardon the means to transmute base rebels into purer political metal.*' But such Presidential alchemy increasingly irritated the Radical element of Republicans. The process threatened every pretension of Congressional control over reconstruction. Indeed, by the end of 1864, "executive clemency [had become] the curse of the Nation" to the Radicals. 12 T h e Southern attorneys who received Presidential pardons and who desired to practice in federal courts faced the requirement of the ironclad test oath. Did the pardon they held permit them to practice without taking that oath? They could get no specific answer from the President or the Attorney-General; the courts must answer this question.32 Southern lawyers as a class were bitter and angry when they realized that the test oath faced them as a prerequisite to practice in federal courts. That oath excluded the greatest part of them from such practice.·'·' The problem concerned many in addition to the lawyers themselves. T h e federal courts in operation were a vital adjunct of reunion. If these courts remained inoperative, if they were staffed with nonresidents, if the test oath alienated Southerners from participating in them—then the courts were no aid to the executive reconstruction efforts. Indeed, the test-oath requirement did threaten to keep the federal courts inoperative in several areas. As the District Court Judge for Alabama wrote to Johnson in August 1865, "Very great difficulties of a practical nature are arising out of the laws of Congress of July 2, 1862 . . . and January [24], 1865. 34 Generally, throughout the South, these "great difficulties" meant that few, if any Southerners were available to act as attorneys who could take the required oath. If, in Alabama, no attorneys were able to take the oath, in Florida none were willing to subscribe it. T h e results were the same: courts unopened, or hopelessly understaffed, cases delayed, temporary expedients resulting in illegal appointments." In three cases heard in lower federal courts in the South during the year from May 1865 to May 1866, the test oath and the executive pardoning power met in legal combat. It seemed to many contemporaries that the winner would control reconstruction. T h e first case of the series was In re Baxter. John Baxter was a Tennessee attorney who had practiced in lower federal courts before the war. His wartime support of the Confederate cause prevented him from taking the test oath. But he had resumed acting as an attorney

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in the federal District Court in eastern Tennessee in May 1864, when Union forces took that section of the divided state. It was not until January 1865 that Congress applied the test oath to attorneys. In the interim, Baxter had received an executive pardon. When he sought to introduce a case in May 1865, the court refused him permission to practice until he had taken the test oath. Baxter refused, and introduced an objection. He argued that the test oath impaired the obligations of the contract into which he had entered with the state of Tennessee when he received his law degree and lawyer's license. This argument, reminiscent of the Cohen plea, Justice Connally F. Trigg disregarded; the admission of an attorney was no contract. 36 But certainly the fees and emoluments which lawyers received from clients were the results of legitimate contracts. Trigg found that the test oath acted as an arbitrary forfeiture of this property; "for if . . . the attorney neglects or refuses to take the prescribed oath, he is as effectively deprived of his office . . . as he could be . . . upon a regular trial and conviction by due process of law, for the offences mentioned." *7 Baxter had charged that the test oath for attorneys was ex post facto. T h e court concurred. T h e goverment's attorney, Horace Maynard, described the test oath as a mere qualification for office, which Trigg refuted, holding the office of attorney as within the court's sole control. In addition, the jurist stated, the test oath acted as an unjustifiable retrospective penalty for attorneys. Certainly exclusion from practice for disloyalty was not a penalty of law in 1861; Congress could not make it so in 1865. Trigg omitted consideration of the pardon which Baxter had received. Seemingly, Trigg did not need it in order to justify his verdict of the invalidity of the federal test oath. He pronounced the oath unconstitutional, and opened his court to all attorneys who met normal professional standards. He probably would have upheld the pardon over the oath, for he demanded, after the Baxter decision, that all attorneys practicing in his court have Presidential pardons if they had a pro-Confederate history. 38 Trigg's decision blew up a storm of Radical protest in Tennessee. "Parson" Brownlow had happily proclaimed that the federal courts would be centers of Union influence because the test oath would exclude pro-Southerners. T h e Baxter decision enraged him, and he distrusted and hated Trigg from that time. 39 Brownlow pleaded with Johnson to discharge the untrustworthy Trigg and appoint Maynard in his place. Tennessee's courts were lost to Unionists, he warned the President, for the barrier of the test oath was demolished.·"' Johnson did nothing; it is more probable that he was delighted with Trigg's decision.

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Only in Trigg's jurisdiction was the test oath as a requirement for attorneys ended. T h e remaining federal courts still labored under the incubus of the test-oath prescription. Alabama's federal District Judge, Richard Busteed, found himself unable to conduct his court because of the test-oath law. He could find no attorneys who could, or would, take the test of past Unionism. Busteed met with Johnson in August 1865 to discuss this problem. Soon after that meeting, several Alabamans received Presidential pardons. Among them was John G. Shorter, who immediately sued for permission to practice in Busteed's court without taking the ironclad oath." In December 1865, Busteed gave his verdict in the case of In re Shorter et al.41 He noted that Shorter's Presidential pardon placed him on a footing level with that of all citizens. And while painfully aware of the enormity of pronouncing against a legislative act, Busteed felt constrained to call the test oath void. He stressed his belief in Congress' adequacy to pass the 1862 act, with every right to protect itself against traitorous officeholders. But when it extended that act to attorneys, it overstepped the bounds of legislative discretion. T o Busteed, the attorneys' oath act was a new species of law for Americans. He termed it "class legislation," and held it contrary to the "universality" which should be "of the essence of a law." Why could not Congress apply this law to mechanics, or to farmers? Busteed drew support for his argument that Congress had no right to regulate on the qualifications of attorneys from Taney's dictum that "it rests exclusively with the court to determine who is qualified to become one of its officers, as attorney and counselor, and for what cause he ought to be removed." 45 If Congress could exclude men for rebellion, could it not admit others for patriotism? The attorneys' test oath was the first attempt of Congress to control qualifications of the members of the federal bar. Busteed held that it was a task far better left to the courts. More seriously, he held the oath a bill of attainder, a patent selfaccusation and an unworthy means of forcing men to bear witness against themselves. It set the crime, and affixed the penalty, all without the protection of trial. The nonjuror deprived himself of his right to practice law; the dishonest signer incurred the penalty of perjury— either way legislative fiat replaced judicial process.44 Further, Busteed held the attorneys' oath law ex post facto in effect. It conflicted with the advantages which adhered to the recipient of an executive pardon. Treason was always criminal, but the deprivation of the right to practice law was not always a penalty for rebellion." Once more the test oath fell as a requirement for attorneys in a

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federal court. A cynical observer noted the widespread joy Southerners felt in Busteed's verdict, and said that "it is a mis-spending of breath. After the principal part of the harm that could be done by the test oath was done, the C o u r t . . . declared it unconstitutional." " Perhaps so, but it is certain that many Southerners were extremely anxious to end the test-oath requirement in other areas. T h e first case heard in the newly opened United States District Court for Georgia in May 1866 was ex parte Law. William Law had practiced in that court since 1817. After Appomattox, he received a Presidential pardon, and sued for permission to resume practice without taking the test oath. Counsel for Law included the former Governor of the state, Joseph E. Brown. T h e government's case found a defender in the District Attorney, William Fitch, "a brilliant Indianaman." Judge J o h n Erskine gave his decision in favor of Law. 47 In a lengthy opinion, in which he discussed the legal and precedents involved in the case, Erskine declared the test constitutional. Even if it were valid, it could not apply to for they were court officers. Only judicial officers could admit to practice, or exclude them from i t . " 4 8

historical oath unattorneys, attorneys

Erskine took sharp issue with the California Cohen decision, while underlining his faith in the rectitude of the Baxter and Shorter judgments. If an attorney's practice was not his by right, certainly he had great interests in it, interests he could defend under law. Congress could, indeed, regulate the federal courts, but only within Constitutional limits. 49 T h e central point of Erskine's attack on the oath was in its conflict with the President's pardon power. T h e two contradicted each other so much that one must give way. A pardon placed its recipient on an equal status with all citizens—yet the attorney's test oath excluded him from a privilege available to other qualified persons. Did the oath inflict a punishment beyond the reach of executive mercy? Erskine felt strongly that it did. Further, the test oath was a bill of attainder, for it implicitly named those against whom it lodged, imposed sentence, and carried it out. No legal safeguard protected the individual from official abuse. T h e excluded attorney ". . . is encompassed by an impassable barrier during the remainder of his days." 5 0 T h e law was still more objectionable as an ex post facto statute; it punished for deeds done before its passage, and extended the penalties for treason into new fields. Here Erskine returned to the issue of the pardon, and repeated his assertion that executive clemency must cleanse rebels of penalties for past rebellion. T h e test oath was a punishment and repugnant to the Constitution/ 1

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The Baxter, Shorter, and Law cases did not end the test-oath problem for attorneys. That oath died only in the jurisdictions of the three courts involved. Other federal jurists, like Judge Hill in Mississippi, maintained the test oath inviolate. And all the federal jurists desired action in a Supreme Court case which had been delayed for a year— a case which might put an end to the bickering and litigation surrounding the test oath for attorneys."

THE SUPREME COURT DECIDES Shielded by the avowal of loyal sentiments, there are persons who do not hesitate, in every opinion, to reveal their views which are inimical to the Government. . . . It is no true defence for the expression of an opinion, that it is an opinion existing in the mind. There are many opinions which it is improper to express. If a man is loyal and sensible, he will express no opinion that might injure his government. . . . Let those who wish to enunciate dismal prophecies abide the alternative of being considered either disloyal or lacking in common

W H E N

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T H E S U P R E M E COURT PRONOUNCED U P O N RECONSTRUCTION ISSUES,

the boiling pot of partisan politics overflowed. How would the high court treat the test oaths? Since December 1865, a case challenging the validity of the federal ironclad oath for attorneys had been on the Supreme Court's docket. Augustus Hill Garland had gained admission to the Supreme Court's bar in 1860. T h e next year he followed his state (Arkansas) into secession and rebellion. Garland became a Confederate Representative, and subsequently represented Arkansas in the rebel Senate. After Appomattox he received a Presidential pardon, and petitioned the Supreme Court for permission to resume his practice without taking the test oath.' When it extended the test oath to attorneys, Congress had provided that no attorney should ". . . be allowed to appear and be heard by the virtue of any previous admission." * This did not deter Garland, who received permission from the Clerk of the Court to file his petition (August 1865). Garland stated the issue as a conflict between Congressional statute and executive pardon. " T h e Court must set aside the act," he argued, "or the petitioner must go through life suffering a bitter punishment for a pardoned offence." T h e oath requirement disqualified a m a n for the very offence for which he had sought executive clemency. Certainly the courts would not deny the President the power to pardon for the crime of rebellion. 3 While many awaited the Court's decision anxiously, while federal • Broadside copy bound in Proceedings of the Convention of Loyal Leagues, Utica, May 26, 1863 (New York: Wm. C. Bryant Co., 1863).

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courts in the South remained perilously understaffed because of the test oath, while the 1866 election gave the Radicals control over reconstruction, the Court delayed.4 By the end of 1866, public interest in Garland's case reached a high point. New York's Times and Tribune vied with each other seeking a "scoop," and Chief Justice Chase denied publicized rumors of the Court's decision.5 Andrew Johnson had to advise his Southern correspondents to be patient while awaiting the verdict in the Garland case. He acknowledged and shared the optimism they felt over the lower federal courts' decisions against the test oath, but Johnson reminded his Southern supporters that the jurisdicions of those courts was limited.® T h e Supreme Court must decide the validity of the ironclad oath before the administration could discard it, if the Court's decision invalidated the law.7 In an administrative sense it would indeed require a Supreme Court decision to set things right in the federal courts in the South. For federal judges were following various courses in regard to the attorneys' oath requirement. Some agreed with their colleagues who declared it unconstitutional, and ceased requiring it in their courts. Other judges waived it pending the Supreme Court's pronouncement, while still others maintained the oath requirement, or modified it to meet local needs.4 Thaddeus Stevens was not anxious for the Supreme Court to test the legality of the test oath. He felt that Congress had acted unwisely in applying it to attorneys as a special class. In January 1866, Stevens proposed that Congress repeal the requirement, in order that lawyers might be on an equal footing with members of all other professions.* But Congress would not follow Stevens' suggestion, and in January 1867 the Supreme Court made public its decision in the Garland case. Garland's counsel were the prominent lawyers, Reverdy Johnson and Μ. H. Carpenter. They reiterated Garland's arguments in their brief, condemning the test oath as generally unconstitutional and especially indefensible as a special requirement for attorneys.10 But admitting the validity of the law for argument's sake. Garland's counsel insisted that the Presidential pardon their client held canceled the oath requirement. The ironclad oath was a war measure, they insisted. With the war over, the oath test should be ended.11 From a constitutional viewpoint, Garland's attorneys found the oath unjustifiable. They condemned it as an ex post facto law and as a bill of attainder. The statute set the punishment for past rebellion, and imposed it without the safeguards of a trial. T h e right of an attorney to practice was a valuable property which the test oath infringed without due process of law.12 Attorneys were officers of courts, not of Congress. Did not the Supreme Court make its own rules, and conform them to the 1865 oath law on its own initiative? How, then,

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could Congress deprive attorneys of their offices? Yet this is what the test oath effectively accomplished. 1 3 And the oath was no mere additional professional qualification, for men could take all the oaths known to nations, and add not one iota of professional fitness in such swearing. T h e test oath question was of national importance, Garland's counsel concluded. B u t the nation's morality was being undermined by the multiplicity of oath tests in vogue. T h e country had survived its infancy, endured a great civil war, become ever stronger, without loyalty tests for attorneys. Were such tests needed for years of peace? 14 It was a strong argument, rendered even more impressive by the puny case the government presented. One page, one paragraph, sufficed for the Attorney-General's defense of the oath law in the first hearing of the Garland case. H e cited two precedents: the California Cohen v. Wright case and Marshall's opinion in McCulloch v. Maryland.1* B u t a year later (1866), when the last briefs were in, the government considerably strengthened its appeal. Attorney-General Speed received the support of a special counsel, Henry Stanberry. 1 6 Speed insisted that no one had a natural right to practice law. Governments extended permission for such practice as a privilege—a grant which it could revoke at its pleasure. T h e Judiciary Act of 1789 permitted the Supreme Court to prescribe an oath. Could not Congress prescribe the specific oath it desired attorneys to subscribe? Loyalty was a qualification, as necessary as education or morality. An ever-present requirement could not be ex post facto, nor a bill of attainder. T h e Constitution prohibited only a religious test, and the attorneys' oath was not that. Had not Congress applied the test oath to its own members, to the very jurists, indeed, who now heard the arguments on the validity of the oath law? Did this not prove that Congress could add the oath to the qualifications of federal personnel of all levels? T h e Attorney-General pleaded for a realistic approach to the test oath litigation. It was Congress' duty to keep traitors from positions where they could injure the nation. T h e jurists of the nation's courts had the same duty. 17 Stanberry centered his attack on the pardon issue. Pardon was forgiveness, not restoration. It could relieve Garland of the penalties of rebellion, but it could hardly erase the fact of his having aided that rebellion. T h e test oath prevented Garland from practicing, but it was not punishment for rebellion. 1 8 In J a n u a r y 1867, a bare majority of the Court declared the federal test oath for attorneys unconstitutional, and rescinded the Court's rule applying the oath to its attorneys. 19 Justice Field supported Garland's arguments for a majority of the jurists. Field termed the oath " . . . a legislative decree of perpetual exclusion." It was a self-inflicted pun-

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ishment and an invalid bill of attainder. And since it provided punishment for acts not punishable when committed, since it added new punishments for these acts, the test oath was ex post facto as well. 20 Field agreed with Garland that an attorney was an officer of the court in which he pleaded. Once the court admitted a lawyer to practice, it could remove him only for due cause, and by due action of the court. An attorney had a real right to his office once the court granted him admission to its bar. Field agreed that Congress might prescribe qualifications for offices under its control. But the test oath was not a qualification, but an unconstitutional punishment. Garland's possession of a Presidential pardon reinforced the majority's conclusion, Field decided. For a pardon made a new man of its recipient, serving to end punishment and erase guilt. While the pardon could not restore forfeited offices, rebellion did not incur the penalty of forfeiture in 1861. It could not incur that penalty in 1867. Congress' test oath for attorneys conflicted with the President's clemency—the oath must give way." Earlier that same day, the Court decided upon another loyalty oath. Missouri's test oath had come before the nation's highest court in 1866, in the case of Cummings v. MissouriThat unhappy state had prescribed its loyalty oath for all ministers. T h e Nation reported that Missouri's clergymen were more opposed to the oath requirement than any other group. And among religious men, Catholics were most opposed to the o a t h . " One of these "contumacious clergymen" was Father John A. Cummings, a parish priest, who refused to take the oath of loyalty. State authorities imprisoned Cummings, fined him five hundred dollars, and denied his allegations that the oath was unconstitutional.* 4 Cummings appealed to the Missouri Supreme Court, an action which attracted widespread attention. Radical control in Missouri depended upon their ability to exclude Democrats from polls and offices by means of the same oath; religious freedom combined with partisan politics was a combination full of contemporary interest. 25 It was late October 1865 when Missouri's highest court heard Cummings plea, one month after it had upheld that oath for attorneys in the Garesche case. T h e court repeated its decision: the test oath was a valid exercise of the state's regulatory powers. It was not, as Cummings had claimed, an infringement upon his religious freedom, ex post facto, or bill of attainder. T h e state had won the first round. 2 9 Cummings determined to appeal to the nation's highest court. Francis P. Blair took interest in his case, and arranged for Montgomery Blair and David Dudley Field to act as Cummings' counsel. In March 1866, they presented their arguments to the Supreme Court, with Field leading off.27 Field analyzed the Missouri oath requirement, out-

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lining the eighty-six actions which it tested, asserting that he had ". . . searched in vain for anything in history so sweeping and severe." 2 8 T h e oath required the subscriber to swear he had never been hostile to any Missouri government; even pro-Unionists were included in this definition. President Johnson, Field asserted, could not take such an oath if Tennessee were to demand it; General Thomas would be disfranchised if Virginia prescribed it.2" Cummings' attorney condemned Missouri's oath for ministers as ex post facto and bill of attainder legislation. Was it unlawful, Field demanded, for Cummings to succor rebel wounded during the war? As a man of God it was Cummings' duty to assist men who were physically and spiritually wounded, but the oath act required him to swear that he had ". . . never, by act or deed, manifested any sympathy with those engaged in rebellion against the United States." It was in 1865, with the war at an end, when Missouri's constitutional convention prescribed the oath. It was intended as a punishment, naming all ministers as a class and depriving them of rights without a trial. T h e state's police power was no blanket permission for arbitrary discrimination. 30 Montgomery Blair reinforced Field's arguments with an historical survey of ex post facto legislation, and concluded with a warning against the Court permitting the successful [political] party in a State t o deprive its opponents of all rights, forbid them all professional pursuits, exclude them from the pulpit as teachers. . . . T r u e , it is only the lawyers, preachers, and teachers, &c, wno are proscribed by the present [Missouri] constitution. B u t if the State can exclude them from these callings now, what will prevent them from excluding any calling h e r e a f t e r ? 3 1

Missouri's defenders were Senator John B. Henderson and George P. Strong, the latter a prominent St. Louis attorney. 32 Strong reminded the Court that a state constitutional provision was under attack, and suggested that all states would resent the presumption of a court which questioned their fundamental acts. Missouri had chosen a convenient means to regulate a licensed profession. T h e oath requirement was no punishment but a qualification. T h e loyal people of Missouri demanded that only loyal men should hold positions of influence. Nowhere did the federal Constitution forbid a state from regulating religious practices. 33 Senator Henderson devoted the bulk of his argument to a graphic picture of Missouri's internal divisions during the war years. No one who had not been there could understand the terrors which had afflicted the state. Neutrality of thought or act was impossible; "men were for, or they were against." Every profession was inescapably involved in the struggle against disloyalty. Henderson believed that the

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test oath was a valid expression of the determination of Missouri's loyalists to support Unionism.*4 Reverdy Johnson offered the final argument for Cummings. Missouri's constitution was not exempt from the national prohibition against ex post facto laws and bills of attainder. Treason had but one definition, and minimum standards for proof. Missouri's oath substituted nonjuring for a confession of treason, and automatically adjudged an unalterable penalty. Religious freedom was basic to the liberties of all Americans, and needed no Constitutional injunction against state infringement.35 Missouri's citizens anxiously awaited the verdict. False rumors excited partisan reactions.38 On the same day when it pronounced upon the Garland case, the Supreme Court declared Missouri's test of past loyalty for ministers unconstitutional. Again, it was the same bare majority of the Court which decided against the Missouri oath. Justice Field termed the oath ". . . for its severity, without any precedent that we can discover." He rejected Missouri's argument that the oath merely set qualifications. Cummings' refusal to take the oath resulted in immediate punishment. These deprivations of rights without judicial safeguards were excessive exercises of state powers. Yes, Missouri had suffered badly in the war, Field acknowledged, but the federal Constitution existed to protect men against momentary passions and political opportunism. Since Missouri's constitution violated federal safeguards, the former must give way.37 Field maintained that a bill of attainder could operate upon a class as well as an individual. Missouri's oath acted as a legislative decree of penalties for every nonjuring clergyman in the state. And the oath requirement was ex post facto as well, for it ". . . imposes a punishment for an act which was not punishable at the time it was committed; . . . imposes additional punishment to that then prescribed; or changes the rules of evidence . . . sufficient to convict." Cummings' wartime aid to Confederates could not unfit him for preaching in the postwar years. Missouri's oath for ministers joined the federal oath for attorneys in the limbo of unconstitutional laws." The long-awaited verdicts had come, and with them came dissenting opinions which demanded attention, for they were powerful dissents.39 The minority in both cases was composed of Chief Justice Chase, and Justices Davis, Miller, and Swayne. Miller read the single opinion which covered the two oath cases. He hoped that all governments would soon discard loyalty-testing legislation, but he believed that the nation and states had the power to exclude ex-rebels from offices. Miller found nothing in the federal oath law or in Missouri's consti-

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tutional provision so repugnant to the Constitution that the Court should invalidate them. 4 0 Garland's right to practice law was a privilege, not a right. His participation in the rebellion was just cause for Congress to withdraw that right. Had all lawyers been loyal in 1861, Miller thought there might have been no war—loyalty was as necessary for attorneys in 1867 as at any other time. 41 H e denied that either law could be a bill of attainder. T h e y named no criminal, declared no guilt, established no sentence, inflicted no punishment. Loyal and disloyal alike had to take the oaths if they desired privileges from state or federal governments. No discrimination existed. T h e fact that Garland's past disloyalty prevented him from practicing law was his own fault, not that of the statute. 4 2 Nor were the oaths ex post facto, Miller declared. Only criminal proceedings could fall into this category, proceedings involving individual cases arising from judicial trials. 43 Miller questioned the majority's conclusion on the pardon issue. He insisted that Garland's Presidential pardon did nothing more than relieve him from the penalties of his treason. It did not exempt him from a legitimate requirement of office. And Miller denied that Missouri's oath had infringed upon Cummings' religious freedom in any way which the Constitution forbade. For the Constitution did not limit state regulation of religion. Missouri's people in convention had prescribed that o a t h — Miller could not see how the Court could deny their right to do so. 44 T h e majority decisions were thunderclaps in the already turbulent atmosphere of partisan politics. T h e implications in the test oath cases, when combined with the Milligan decision, threatened the bases of Radical legislation then under way. Garfield noted that " T h e [Republican] newspapers are insanely calling for the abolition of the C o u r t . " 4 5 Democrats and almost all Southerners hailed the test-oath decisions with unconcealed joy, finding in them support for allegations of illegality of state and federal loyalty tests. 46 T h e narrow division of the Court added weight to Republican charges of partisan decisions. Four of the five majority Justices had sat in the Dred Scott case; only Field was a Lincoln appointee. Field received a double measure of editorial abuse for his "defection." In later years, Field remembered the "fierceness with which a majority of this court was assailed." T h e four minority jurists had all received their commissions from Lincoln. 4 7 Thaddeus Stevens considered the test-oath decisions more dangerous to the safety of the Union than the Dred Scott case, while the Washington Chronicle called the majority opinions "the fortification behind which impertinent rebels may renew or continue their war upon the Government." 4 8 Wendell Phillips counted the Supreme Court and the President leagued against Con-

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gress and loyalty. The Court had failed, George Boutwell declared, in its duty of insulating itself against rebel contamination. Congress must provide that insulation, if it entailed a complete reorganization of the federal judiciary. 4 ' Boutwell and Stevens joined to sponsor legislation restricting the Court's appellate jurisdiction, proposing a Constitutional amendment abolishing that tribunal, and requiring unanimity or two-thirds majorities for all decisions. Perhaps these proposals were political ammunition; Congressmen found no difficulty in tabling them. More concretely, Radical leadership achieved a joint resolution prohibiting the payment of salaries to any employee unable to take the ironclad oath. If the Court could exempt its attorneys from the oath requirement, Congress could deny the implications of the majority decision in this fashion.™ Boutwell did attempt to revive the test-oath requirement for attorneys in all federal courts, a proposal which aroused determined partisan opposition. As the Springfield Republican commented, Boutwell's proposal ". . . is an attempt to neutralize the decisions of the Court. . . . Congress is not the final judge of the validity of its own acts . . . while there is a Constitution and a Supreme Court." 51 Even political alignments failed in the Congressional votes. T h e House passed the measure (119-43) but it died in Senate committee. As the Nation noted with approval, public opinion would not support such a direct slap at the Court.4* Events accomplished what the Radicals could not achieve by legislation or litigation. As Justice Field said, the Court would not "run a race with Congress." 53 By mid-1867, Congress made past loyalty tests and military commissions basic tools of their reconstruction legislation. The third section of the Fourteenth Amendment effectively countered the Presidential pardon power.54 T h e Garland and Cummings cases did not end the Courts' concern with loyalty-oath litigation. Jurists, attorneys, and commentators on the law have argued the issues involved in such cases from 1867 to today. Their voices are not yet still. "The minority opinion [in the test-oath cases] disposes of the legal end of the question in a manner which leaves no doubt as to which side was right," wrote Louis Boudin in 1932. Osmond K. Fraenkel, writing in 1944, reluctantly conceded the difficulty of escaping the logic of the dissenting minority. Similarly, Charles G. Haines supported Justice Miller's dissent on the ex post facto issue, while Edward S. Corwin has critically examined Justice Field's sweeping assertions on the effects of Presidential pardon." These recent scholarly criticisms of the majority opinions are not the first. In 1867, students of the law found much to criticize in Field's

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opinion. Legal journals gave prominent display to the test-oath cases, and it was editorial consenus that the minority view was the better one. Had not the court been evenly divided? Was not the Chief Justice in dissent? It was a topic of ". . . absorbing public and professional interest." 5 ® If lawyers were divided on the legal aspects of the cases, laymen were confused about the real effects of the decisions. David Dudley Field's overenthusiastic biographer believed that the entire federal test oath had been swept away, and that Missouri's loyalty oath was wholly gone. H e was as wrong as the anti-Radicals in Missouri who celebrated the total demise of the oath they detested. A puzzled T e x a n inquired of the Attorney-General in February 1867, " W h a t is the real effect of the decisions in the Garland and Cummings cases?" T h e latter official had to confess his inability to answer: " W e must again wait ihe verdicts of the courts." " It is now clear that the only immediate effect of the Garland case was to erase a rule of the Supreme Court. T h e decision did not repeal the 1865 law by which Congress had extended the test-oath requirement to attorneys. Certainly, it did not repeal the 1862 law itself. 58 After the Garland decision, the Supreme Court did permit pardoned ex-rebels to engage in legal practice before it, if they had done so before the war. But not all federal jurists were inclined to discard the test oath in their courts. 5 " Chief Justice David Kellogg Cartter of the Supreme Court of the District of Columbia made the oath a requirement for the attorneys in his court a year before Congress applied the law to all federal courts. Cartter considered the ironclad oath a necessary rule in peace as in war, and he was strongly critical of the Garland decision. I f the national Supreme Court had ". . . united its great wisdom in invalidating the rule in controversy, we should feel disposed to bow to it," Cartter stated. A month after the Garland decision, Cartter had an opportunity to criticize that case when Allen B. Magruder applied for permission to practice in his court. Magruder confidently based his petition on the recent Garland case. He had practiced in the District's Circuit Court before the war, and held Johnson's pardon for his participation in the rebellion. Cartter denied his plea, since no ex post facto elements existed in this instance. He criticized the Garland decision, and announced that the test oath would remain a rule in his court. 6 " Cartter received Radical praise for his rejection of the majority opinion in the Garland case. However, by the summer of 1867, all federal jurists had accepted that decision; ex-rebel attorneys could practice in all the courts of the nation. 6 1 T h e national Supreme Court had opportunity to rehear some of the issues covered in the leading cases, and state courts reviewed local test

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oaths in the light of the Garland and Cummings decisions. A review of these cases is necessary, for they afford the broadest survey of contemporary judicial opinion on the validity of the national test-oath cases. Missouri's highest court had sustained that state's attorneys' oath in the 1865 Gareschi case. It reversed that decision in 1867, basing its reversal on the Cummings precedent, and voiding Missouri's attorneys' oath provision as ex post facto and bill of attainder legislation." Conversely, West Virginia's Supreme Court upheld that state's attorneys' oath. It will be recalled that the 1866 Faulkner case had resulted in legislative reenactment of West Virginia's oath law. In 1867 the state's highest court upheld the new law, rejecting the Garland precedent. They did not reject the legal basis of that decision, declaring merely that the petitioner's possession of a Presidential pardon did not permit him to evade state penalties for participation in rebellion. It was a unanimous decision, but it appears to prove only that the jurists believed such test necessary to meet the effects of a great rebellion. T h e court rejected any plea which would have denied the state the power of self-preservation. 63 West Virginia's oath law for attorneys never received the scrutiny of the national Supreme Court, but that same oath which West Virginia had applied for litigants in its courts did go to Washington after the state courts had sustained it. 64 Justice Field reversed the decision, declaring the state oath for litigants void on the same bases as the Garland and Cummings rulings. 65 West Virginia's courts accepted Field's verdict, and in subsequent litigation reversed their earlier decision which had upheld the litigants' oath. 68 These decisions cast doubt on the correctness of the 1863 California Cohen case, which had sustained a similar oath for litigants. If the California oath had faced judicial scrutiny after the war, rather than during a period when partisan pressures threatened to disrupt the state, it seems possible that the courts might have found less favor in the law. Minnesota's courts in 1862 invalidated a law which denied the use of its courts to aiders of the rebellion. T h e jurists found the law ex post facto legislation as well as a violation of the privileges and immunities of American citizens.67 Minnesota in 1862 had less to fear from internal division than had California. T h e courts never decided upon the legality of jurors' test oaths. In 1868 West Virginia's highest court held that the state jurors' oath was constitutional, but refused to enter upon a discussion of the matter. 68 Similarly, Missouri's Supreme Court briefly sustained the state constitutional provision which required a retrospective test oath for all jurors. When the federal Supreme Court heard the resulting appeal, it considered it unnecessary to pass upon allegations of unconstitutionality. T h e Court held Missouri's reasons for rejecting the

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plaintiff as a j u r o r were valid irrespective of his refusal to subscribe the oath. 6 9 T h e federal jurors' test oath ( J u n e 17, 1862) also received judicial scrutiny, but only on procedural questions. 7 0 More decisive were the judicial decisions on state loyalty requirements for voters. Arkansas' election law of April 18, 1864, required every voter to swear to his past and future loyalty to state and nation. T h e state Supreme Court held the oath unconstitutional, for it contradicted the terms of the Presidential pardon the appellants held, and deprived them of a right without due process of law. 11 T h e Nevada oath of past loyalty for the state's voters found similar judicial disfavor in 1870. T h a t law prohibited from suffrage all who could not swear to past loyalty to the Union. However, the state's constitution prescribed that such denial could not stand in the face of a federal amnesty. T h e court decided that the law contradicted this constitutional provision and Johnson's amnesty proclamation. 7 2 A New York statute of 1867 prescribed a test oath of past fidelity for voters in a proposed constitutional convention, a law similar in wording and spirit to the federal ironclad oath. Five of the eight jurists of New York's Supreme Court declared the state law unconstitutional on the basis of the Garland and Cummings precedents." In 1864 Maryland's constitution specified an oath of past loyalty for voters, including the declaration that the subscriber had " . . . never expressed a desire for the triumph of . . . " the rebels. In 1865 the Court of Appeals sustained the provision, deciding that suffrage is not a property right and is controllable by the state. T h e jurists denied that the oath was ex post facto or a bill of attainder, refusing to deny the people the right to set suffrage qualifications. 7 4 Francis P. Blair learned that his pro-Union activities in 1861 came under the ban of the 1865 Missouri oath which disfranchised those who had ever borne arms against any Missouri government. W h e n election officials rejected his ballot in November 1865, Blair sued them. Blair was confident that the federal Supreme Court would reverse the decisions of Missouri's courts, which had upheld the oath requirement. 7 5 Missouri's jurists acknowledged that the preachers' oath was invalid, but they saw no reason why voters should not take it. Suffrage came only from government; loyalty must exist if the government was to survive. T h e r e could be no punishment involved if the state deprived its citizens of their votes for the just cause of disloyalty. 78 From 1867 to 1870 Blair's attorneys pressed the Supreme Court for a hearing, but delays postponed the verdict until 1870. T h e issues involved in Blair's case directly threatened the bases of Radical reconstruction, as Blair wrote to the Chief Justice: A similar [oath] provision is contained in the Constitutions of West Virginia and Kansas, and in the laws of Tennessee and the Acts of Congress relating

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to Reconstruction. The validity of all will be determined by the decision in this case.77 While the case was pending, false rumors of the decision encouraged many Missourians to vote in violation of the oath requirement in 1868, while both political parties made election ammunition of Blair's appeal.78 In February 1870, two weeks after its decision in the Legal Tender case, the Supreme Court issued its pronouncement. T h e Court split evenly: Justices Clifford, Field, Grier, and Nelson voted against the statute while Chase, Davis, Miller, and Swayne sustained it. In effect, the division sanctioned the decisions of Missouri's courts." West Virginia's test oath also applied to its voters. In 1869 that state's Supreme Court sustained the law. The people were entitled to exclude their enemies from the polls; disfranchisement was no punishment but a logical consequence of disloyalty. Nonjurors penalized themselves only to the extent of identifying their past infidelity. T h e court could find no Constitutional guarantee which would require the state to permit its foes to vote themselves into power.80 At almost the same time, Tennessee's highest court issued a similar verdict sustaining a voters' test oath in that state.81 Missouri's and West Virginia's test oath appeared in court in still other guises. Missouri had ordained that oath for all its public officials. Following its decision in the Blair case, Missouri's highest court had little difficulty in sustaining the legality of requiring public officers to swear to their past loyalty. Such a requirement, the jurists held, could not be ex post facto, for loyalty was always a requirement for officeholders. Since office was no natural right, no punishment could be involved in the state withdrawing that privilege.82 However, when a college curator challenged the law which would deny him that position unless he took the oath, Missouri's Supreme Court decided that the requirement was invalid. They termed the requirement (not the oath) a bill of attainder, for it specified the class of citizens against whom the oath test would apply. The legislature had arrogated judicial functions to itself, and its law was void. It was similarly invalid when applied to Missouri's teachers, for the Cummings precedent applied in instances of specific professions.83 West Virginia's test oath for its public officials also received judicial approval. The judges of the state's highest court ruled that those who accepted public office must do so conscious of all legal requirements for the positions. Past loyalty was such a requirement, and no less worthy than age, residence, or education.84 The courts have afforded legislatures the power to set minimum qualifications for certain professions. The essential difference is between reasonable standards and unwarrantable tests which have no

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relation to the vocation involved. Justice Field, who condemned test oaths as bills of attainder, upheld a West Virginia law setting minimum education standards for doctors. Field was able to make a clear distinction between such legislation, bearing an immediate relationship to the regulated occupation, and the invalidated test oaths.*5 T h e Supreme Court made a similar distinction when it sustained a New York law which excluded from medical practice anyone who had ever been guilty of a felony. T h e law was a proper exercise of the state's power to set standards of professional fitness, Justice Brewer ruled, and the Garland and Cummings precedents were inapplicable.8® Nor did a similar Michigan statute violate the due process clause of the Fourteenth Amendment, or come within the attainder definition of the test-oath cases.87 In 1944, the Court sustained Illinois when it required attorneys to swear to support the state against armed invasion, over Justice Black's dissent that such a requirement descended directly from the attainder provisions of the Garland case.88 By the Garland decision, the Court gave Presidential pardoning power a position superior to legislative proscription. A series of cases rising out of the past-loyalty requirements facing claimants for captured and abandoned property reinforced the Court's conception of that primacy. Justice Field's statement, deciding for the plaintiff in Carlisle v. the United States, serves to illustrate the conclusion the Court reached. Field said that the executive pardon the claimants had received . . . relieves them from the legal consequences of their participation in the rebellion, and from the necessity of proving that they had not thus participated . . . the pardon and amnesty do not . . . alter the fact that aid [to the rebellion] was given . . . but they forever close the eyes of the court to the perception of that fact as an element in its judgment.49 These have been the cases which decided upon national and state loyalty oaths of the Civil War and reconstruction periods. They do not indicate that the Garland and Cummings majority opinions are obsolete as law or as logic. In 1945 they formed the basis of the Court's invalidation of a Congressional prohibition of salaries to specified government personnel. Speaking for the Court, Justice Black referred to the Garland and Cummings cases as the heart of his opinion, stating that Neither of these opinions has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.90

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T h e Garland and Cummings precedents have formed the basis of a recent appeal of government employees whose loyalty did not withstand investigation. T h e court which heard the appeal rejected it, but it did not reject the references to the test-oath cases.91 Justice Rutledge found the Cummings opinion worthy of inclusion in his dissent in the 1945 appeal of Japanese General Yamashita. In this instance, Rutledge stressed the ex post facto conclusions which the Court had reached in 1867.92 Justice Vinson, in sustaining the non-Communist oath provision of the 1947 Taft-Hartley Act, found it necessary to differentiate between the case at hand and the test-oath cases of the Civil War. Dissenting in the same case, Justice Black penned a strong criticism of test oaths in language reminiscent of Justice Field's nearly a century earlier. 93 T h e dissenters in the 1943 Flag Salute Case (Justices Black, Douglas, and Vinson) had recourse to similar sentiments.94 And when Justices Clark and Douglas dissented from the Court's approval of a municipal oath of past loyalty in 1950, they found substantiation in the Garland and Cummings decisions.95 These decisions are still sound. If the majority of the Supreme Court does not uphold them in the mid twentieth century, that is another story. Perhaps it is now their fate to find place in dissents rather than in majority opinions. That, too, may change. But the Garland and Cummings cases will not lose the important position they hold in America's constitutional development. They remain, as Henry Steele Commager described them, ". . . perhaps the best example of judicial protection of personal rights in the whole of our history." 96

FIRST BREACH Since Oaths are Solemn Serious Things The best security to Kings, And since we've all allegiance swore To J as king, or Successor, I can't imagine how we may Swear that or fealty away. Nought sure but Death or Resignation Can free us from that Obligation, All Oaths are vain, but those and these If we may break 'em as we please: And did I fairly swallow both, Who'd give a Farthing for my Oath? And now I think I've We cannot with good We cannot take Oath And to both Faithful

made it clear Conscience swear, both Old and New prove and true. CHARLES

"Y J - OU

DICKENS*

MUST F I L E T H E REQUIRED [TEST] OATH O F O F F I C E . W I T H O U T I T

you will not be paid." T h e federal District Attorney in Kansas who received this letter from the Attorney-General had neglected to send his oath to Washington. H e was one of many Northerners who ran afoul of that requirement.' W h i l e Johnson's administration employed Southerners who were unable to swear to their past loyalty, it insisted on obedience to the test-oath law among Northern civil servants. T h a t insistence created an administrative problem for Johnson and his Cabinet officers all during his administration. Many employees were careless of regulations and neglected to file the required oath. Faulty communications, especially from distant locations, resulted in delay and frequent loss of many documents including oaths of office. T h e result—employees went unpaid until they complied with the test• "The New Oath Examined and Found Guilty," All the Year Round, 1867), 103.

X V I I (January 26.

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oath law. T h e Treasury Department maintained a standing order on this subject. No account would receive the necessary Auditor's signature until the employee's oath, notarized and stamped, rested in his file.' In the first months and years after the war, many employees of various government departments confessed confusion concerning loyalty requirements. Some submitted the obsolete August 1861 oath of future allegiance. Other civil servants filed Lincoln's or Johnson's amnesty oath. But these were Northerners. Many were Union veterans and in no way subject to disfranchising legislation. They were ignorant of the law, confused about the regulations which applied to federal officeholding. T h e i r superiors withheld their salaries until they had taken the test oath. In these cases executive officials engaged in extensive correspondence with those making the errors. One complaining letter from McCulloch described the ". . . hundreds of cases in the North of incorrect oaths and absent oaths, a situation which has absorbed an excessive amount of the time of this and all other Executive Departments." * Under these circumstances some federal employees acted in official capacities for months before they managed to correct their official oaths. In several cases the federal government found the authority of its servants challenged. Shrewd businessmen denied that an improperly sworn customs collector in New York, or a similarly delinquent revenue assessor in Philadelphia, had the right to fulfill official functions. They won their argument. McCulloch estimated that the government lost almost one million dollars in revenue in 1865-66 because of Treasury agents whose commissions were incomplete. 4 As an administrative heritage from the earliest days of the war there remained the problem of the salaries due to federal employees who had left the civil service in order to go South. Claims for these salaries reached Treasury offices after the war. McCulloch insisted that the claimants take the ironclad oath of past loyalty before he would authorize payment. If the original claimant had died, the Treasury Secretary required his heirs to take that oath. McCulloch chose to obey Congress' test-oath requirement in this instance, while simultaneously employing nonjurors in the Treasury offices in the South. McCulloch recognized the inconsistencies between these policies. He defended his ambivalent course. " I will fight Congress over the test oath on but one front at a time," he wrote.5 In individual instances McCulloch's test-oath requirement for heirs of deceased federal employees worked severe hardship. Consider the case of John Bierman, who had been a customs collector in Texas from 1840 to 1861. When the war came the loyal Bierman moved to Washington and remained in Treasury service until his death in 1863.

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His widow had remained in Texas, engaging in hospital and other volunteer services for rebel soldiers. In 1865 she sought to obtain six months' salary the government owed her late husband. T h e destitute woman, aged beyond self-support, grieving over the deaths of her husband and sons who had chosen different ways in the civil conflict, admitted her inability to take the test oath. McCulloch relented. Congress authorized special dispensation in this case. In March 1867, the widow received the salary her husband had earned four years earlier.® North and South, the wartime loyalty requirements remained administrative problems after the war had ended on the battlefields. I n some minor areas of administrative operations executive policies dispensed with loyalty tests. Since 1861 steamboat pilots had faced a loyalty-oath requirement authorized only by executive orders. These pilots had found that they had to subscribe the civil servants' oath of August 1861 and, subsequently, the ironclad oath. T h e Treasury Solicitor considered this situation in September 1866. Steamboat pilots, he announced, were not federal officers of any sort, and need take loyalty oaths no longer. 7 Similarly, McCulloch reviewed the Congressional enactment of March 1862 which prescribed the civil servants' loyalty oath for American shipmasters clearing for foreign ports. T h e Treasury Solicitor confirmed McCulloch's opinion that this law retained vitality only during the war period. Now, in December 1866, that war was safely over. Although McCulloch disliked touching off the "somewhat delicate question" of an executive officer suggesting the ending of a legislative enactment, he decided to assume the risk. T o his surprise, the Foreign Relations Committees of both Houses of Congress sponsored his suggestion. Without waiting for Congress to act, McCulloch terminated the oath requirement. H e felt sure Congress would agree, as it did, that American merchant-shipowners needed the services of ex-Confederate skippers. 8 Seward also found occasion to dispense with State Department regulations dating from early in the war which required loyalty oaths of passport applicants. After March 1865, travelers to and from Canada were free of the loyalty-oath requirement, as were immigrants from Europe where local regulations abroad made American vises necessary. But American citizens returning from abroad whose passports bore the stigma of Southern nativity must show proof of future fidelity to the Union—they must have sworn to the Presidential amnesty oath. 9 These were relatively small groups which escaped from loyalty requirements. It was the ironclad oath which affected the great mass of Southerners. It proscribed them from federal offices and barred them from Congressional representation. T h e similar jurors' test oath ex-

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eluded most ex-rebels from participation in federal jury duty. McCulloch's appeals to Congress in 1866 for a modification of that oath had been in vain. Perhaps the Southerners themselves could end the past loyalty requirements. If Johnson's party won the 1866 elections, would that not resolve the issue? Montgomery Blair thought so. He wrote, ". . . there will be no question about the admission of the South to seats in Congress if the [1866] election is carried by the Democrats." 10 Blair's hopes were shared by many Southerners. They predicted overwhelming Democratic success at the polls, the end of threats of Negro dominance, and the abolition of test oaths. But Republican victory countered Democratic aspirations. T h a t victory presaged Radical control over reconstruction and the continued exclusion of Southern delegations from the national legislature." However the results of the 1866 election disappointed the South, it did not teach Southerners to elect men to Congress who could take the ironclad oath. Georgia chose Herschel V. Johnson for its Senator after the Republican electoral victory was certain. Arkansas and Louisiana gave to prominent ex-Confederates the palm of Congressional offices.12 Radical determination to exclude such men was as consistent as the Southern desire to elect them. And the Radicals were now in control. With victory theirs, with Republicans in control of a majority of both Houses of Congress, with Southern delegations clamoring vainly for admission—the Radicals launched their reconstruction program. Did the Milligan decision condemn the use of military tribunals? Were not the Garland and Cummings cases strong arguments against the legality of retrospective test oaths? H a d not the Garland decision placed executive pardons before legislative penalties? These questions the Radicals ignored. From their committee rooms came the legislation intended to solidify Republican rule and to insure the freedman his rights. T h e Freedmen's Bureau with its military courts, the Reconstruction Acts with their use of loyalty oaths of past fidelity—such legislative weapons were too valuable to remain unused. T h e third section of the Fourteenth Amendment conflicted directly with the President's pardoning power." Except for Tennessee, the Southern states rejected that Amendment. They would not contribute to the proscription of the leaders under whom they had endured so much; it was those leaders whom the Amendment affected. But while Southerners raged at this alleged injustice, they momentarily forgot that the test oath affected all exrebels. '* William A. Russ quotes an anonymous "figuring genius" in estimating that 23,745 Southerners faced exclusion from government offices under the terms of the Fourteenth Amendment. 15 T h e test oath

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barred every voluntary rebel from federal positions—its affect must be measured in larger numbers. T h e Radicals arrived at their use of the ironclad oath in reconstruction legislation gradually. T h e first Reconstruction Act (March 2, 1867) disfranchised only those Southerners who faced disqualification under the Fourteenth Amendment. 1 0 Southern Radicals soon saw this as a fatal flaw in the law; one complained to J o h n Sherman, " I t allows all . . . that were to [iff] insignificant before the Rebellion . . . to hold office because they have never [before the war] taken the Oath of the U. S. G o v e r n m e n t . " 1 7 T h i s factor augmented Radical desires to spur the lagging reconstruction process in the South. T h e first Supplemental Reconstruction Act (March 23, 1867) prescribed an oath of past loyalty for all who desired to register as voters. A registrant must swear that he had never held office under Confederate authority, or given aid or comfort to the enemies of the United States, in addition to qualifying under the Fourteenth Amendment. Further, registering officials must all have taken the ironclad test oath. 1 8 But the generals in charge of the South found that the statute was more confusing than enlightening. W h o was disfranchised? W h a t was an office under Confederate authority? Was a conscript a rebel under the terms of this oath? If a registrant was willing to take the oath, was this prima facie evidence of past loyalty? 1 9 Radicals, confident that they had written the law so that the answers to these questions must be in their favor, received a jolt when Attorney-General Stanberry narrowly interpreted the scope of the disfranchising clause. He excepted municipal officers from disfranchisement as well as state militia personnel and rebel conscripts. Stanberry insisted that registration officials must accept the voters' word when the latter offered to subscribe their loyalty oaths. Courts, not military personnel, must punish perjury. 2 0 Radical spokesmen railed at the implications of Stanberry's opinion. How could rebels' oaths be trusted? T o try each liar for perjury would consume all the time of the nation's courts for a generation. As Sheridan noted, " T o adopt Mr. Stanberry's interpretation of the [reconstruction law] . . . would defeat the purpose of Congress." 2 1 Stanton, still a member of Johnson's Cabinet, agreed with Sheridan. T h e W a r Secretary prepared a memorandum which anticipated Radical policy. H e would disfranchise . . . all persons who voluntarily participated in the rebellion . . . [and who] were by their own crime . . . disqualified to exercise or enjoy any political or civil rights of franchise whatsoever; . . . the act of voluntary rebellion did operate as and amount to the disfranchisement meant in the said [Reconstruction] Act of Congress. 2 2

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In this spirit Congress passed the third Reconstruction Act of July 19, 1867. Radically minded generals found past disagreements with Johnson justified by this latest law. Congress authorized the commanding generals to remove all ex-rebels from office, and defined Confederate complicity much more broadly than had Stanberry. T h e law provided that a Presidential pardon was no entitlement to office, and that the opinion of no civil officer was binding upon the military personnel in charge of reconstruction. It provided, too, that registration officials could on their own authority investigate the truth of a voter's oath and reject it if the statement of past loyalty seemed false. Finally, the law demanded that all men in state and federal positions in the South be of proved loyalty to the Union. 23 T h e law did not prescribe the ironclad oath for state officeholding. Naturally, all federal officials had to take that test oath. But when military officers who administered reconstruction sympathized with Radical aims and methods, the test oath emerged as the obvious means to distinguish between friend and foe. But even under military reconstruction when Union forces protected Southern loyalists the test-oath requirement kept many federal offices vacant in the South. Schofield's order that state officers in Virginia swear to that oath resulted in wholesale resignations. By the fall of 1867, subordinate military officers were petitioning their superiors for a modification of the test oath, for they were finding it impossible to fill many offices with qualified men." One official held the key to the success or failure of Radical reconstruction. T h e registrar, with his power to exclude votes, was the pivotal figure about whom the complex laws revolved. T h e commanding generals exerted special efforts to see to it that only men of unimpeachable past Unionism filled these positions. By law and by logic, this meant that the registrars should be men capable of swearing to the ironclad oath. Here again reconstruction officials found a serious shortage of qualified persons who could so swear. For, as McCulloch had learned in 1865, it was no easy thing for many men to determine if they had "voluntarily" aided the rebellion. Nor were other men sure if they had given the Confederacy aid and comfort. When they confessed their confusions to the commanding generals, it depended upon the subjective reactions of these officers whether or not an exConfederate conscriptee might remain a registrar. Sickles was generous in this respect when compared to Ord. Yet throughout the South the same problem existed in varying degrees; too few men existed who could (or would) take the ironclad oath of office. By the end of 1867 the Union Army officers in charge of reconstruction had to arrive at precisely the same conclusion which McCulloch had seen in 1865. They permitted men to assume office as registrars who could not take

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the test oath as the law required. Before they did so, the generals investigated the present Unionism of the applicants for registrars' positions. If these applicants met whatever subjective standards the employing officer applied to measure postwar loyalty (and Republican affiliation) the test oath proved no bar to federal positions.' 5 In the same subjective manner the Radicals who controlled Congress maintained the test oath as the measure by which they determined the suitability of applicants for admission. In 1866 that oath barred the entrance into Congress of delegations from Johnson's Southern governments. Congress ignored these governments and supplanted them by its reconstruction legislation. In 1867 the Senate applied the subjective interpretation of the test oath to an applicant from a state which had never known the Stars and Bars as an official ensign. Maryland's legislature had selected Philip Francis Thomas, Democrat, as its junior Senator. Early in March 1867 his credentials were before the Senate for its approval. A dissident voice protested his admission. Michigan's Howard cast aspirations on Thomas' past loyalty, and denied that the Marylander could take the required test oath. Thomas denied the allegations. He was willing to take that oath and face future penalties if perjury existed in his statement of undefiled past Unionism. 28 What was there to condemn Thomas as disloyal? He had been Secretary of the Treasury in Buchanan's Cabinet, and Republican Senators charged that Thomas had used that position to spur secession. T h i s Thomas and his defenders denied, and produced strong evidence to the contrary. T h e more serious charge against the Marylander centered about the war years, that he had "given aid and comfort" to his rebel son by giving him $100 when the youth fled to join the rebel army. Did this unfit Thomas to be a Senator of the United States; did this permit Senators to deny him the oath of past loyalty? 27 Over the protests of Reverdy Johnson and other Democratic Senators the Senate Judiciary Committee assumed charge of Thomas' case. In December 1867, it reported its findings which confirmed the fact of Thomas aiding his son. T h e issues of the Bayard and Patterson cases were again before the Senate. Once more the legislators debated their power to add to the Constitutional requirements for the Senatorial office. Edmunds of Vermont found ample precedents for refusing Thomas the oath. Maine's Fessenden was less positive. He did not doubt the desirability of the test oath as a prerequisite for federal office. However, Fessenden would not prevent Thomas from subscribing that oath if he felt himself qualified to do so. T h e Senate had no right to question him further. Give him the oath and admit Thomas to his seat, Fessenden argued. Then, if Senators found evidence of perjury, they had recourse to traditional penalties.2® Conkling replied to

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Fessenden, and asserted the practical difficulties which might prevent the Senate from ejecting T h o m a s once it had seated him. Conkling insisted that it was better to decide before T h o m a s took the oath if he was fit to do so. 29 T h e s e were battle lines. Repetitious debate during the first months of 1866 merely underscored this issue—could the Senate interpret men's motives? 3 0 Sumner assumed the leadership of those Senators who insisted upon the continuance of the subjective interpretation of the test oath. T h e Fourteenth Amendment was now (February, 1868) all but part of the Constitution. If loyalty had never before been a requirement for federal offices, that amendment placed it in a preeminent position. T h e Senate would admit no man who was too young, or an alien. No more should it accept as a colleague one who could swear only falsely to his past loyalty. " T h e 'open sesame' of this Chamber must be something more than the oath of a suspected applicant," Sumner insisted. 31 T h e extended debate evoked critical public reaction. Referring to the debate, the Nation commented that it thought it "somewhat nice and metaphysical." T h a t newspaper would offer no editorial comment on the constitutional aspects of the case, but considered "the Senate . . . hardly in such a state . . . [as] to hold the scales while a father's motives are being weighed." 3 2 On February 19, 1868, the Senate voted to refuse T h o m a s the test oath of office. Twenty-seven Senators decided that his money gift to his son debarred T h o m a s from being a Senator. Sumner and Conkling voted for this resolution. But Republican accord suffered; T r u m b u l l and Fessenden were among the twenty Senators (most of whom were Democrats) who voted to admit Thomas. 3 3 W h i l e the Senate argued Thomas' case, the House of Representatives showed itself equally determined to maintain the sanctity of the test oath. W h e n the first session of the Fortieth Congress convened early in J u l y 1867, Kentucky's nine-man delegation appeared to take the oath of office. Seven Representatives-elect from Kentucky found their rights to their seats contested on charges of past disloyalty. Claimants for these seats alleged that James B. Beck, J o h n Young Brown, A. P. Grover, T h o m a s L. Jones, J . Proctor Knott, Lawrence S. T r i m b l e , and J o h n D. Young had been disloyal to the Union and were incapable of taking the test oath. Partisan debate offered no immediate solution to the question of whom the House should admit. By a narrow margin (67-50) the House assigned to its Elections Committee the task of investigating each claim and suggesting to whom the House should offer the test oath of office/ 1 By this resolution, the House established a precedent of major im-

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portance. If a member-elect faced charges of disloyalty the House would refuse him the test oath of office. Its Committee on Elections would investigate each case and make a recommendation to the House on the suitability of the individual to swear to his past loyalty." And while the Democratic Kentucky Congressmen remained excluded from their seats during this investigation, Radicals could take advantage of their absence to pass legislation based on their increased majority. 3 6 Early in December 1867, the Elections Committee reported its findings. T h e committee stressed the unprecedented nature of the situation. Never before had the House excluded an entire delegation on charges of disloyalty. (In 1865, the formal reason which Congress gave for excluding the Southern delegations was the absence of their names from the clerk's roll.) B u t the committee did not doubt the power of the House to buttress the test oath by insuring that members-elect were honestly capable of subscribing it. If this were not done, of what use was the o a t h ? " T h e committee did propose that a member-elect must have given overt aid to the rebellion before the House disqualified him from the oath; "mere want of sympathy with the [Federal] Government or a passive sympathy with the rebellion are not sufficient to exclude a person regularly elected from taking his seat in the House." 3 8 On this basis, the committee found that four of the disputed cases (Beck, Grover, Jones, and Knott) met its standards of past Unionism. T h e House administered the test oath to these men, and Kentucky had half a delegation in Congress. 30 In the remaining three cases contested elections complicated the issue. T h e committee reported separately on each of these. L. S. T r i m b l e had a clear majority of votes, but G. G. Symes, runnerup in the election, accused T r i m b l e of disloyalty. H e charged T r i m b l e with wartime contraband trade with the rebels. T h e Elections Committee rejected the charge, for they found that T r i m b l e had traded under federal control as a Treasury agent. T h e y found, too, that Trimble's financial creditors were behind the disloyalty charges. T h e s e creditors used this form of blackmail to pressure T r i m b l e into settling his accounts. For this T r i m b l e was excluded from Congress from November 1867 to J u l y 1868. Even Massachusetts' Congressman Dawes, whose leadership of the House Elections Committee had sustained the vigorous application of the test oath, admitted that it should not apply in T r i m b l e ' s case. T h e House agreed; T r i m b l e took the longdelayed oaths of office. 40 Samuel E. Smith claimed the Congressional seat which J o h n Young Brown had won with a clear electoral majority. Smith sought to disqualify Brown on charges of disloyalty in 1861. In that confused period when Kentucky had sought to remain neutral in the impending strug-

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gle, Brown had made anti-Lincoln speeches. Did these actions constitute disloyalty sufficient for the House to bar Brown from taking the test oath? 4 1 T h e House Elections Committee split on this question. T h e majority recommended that the House find Brown disloyal. Two Democratic committeemen (Indiana's Kerr and New York's Chanler) arrived at opposite conclusions—they viewed Brown's conduct in 1861 as not disloyal within the context of time and place. 43 In January 1868, the House faced a larger issue, when the committeemen brought their conflicting conclusions into general debate. Before the House now was the constitutional issue which had consumed much time and energy in the Senate when Bayard, Patterson, and Thomas had faced the test-oath requirement. Could the House add to the Constitutional requirements for a Representative; could it grant or withhold from members-elect the choice of deciding if they were fit to swear to their past loyalty? T w o Kentucky Democrats led the attack on the majority report, which substantiated the subjective use of the test oath. James Beck and J . Proctor Knott had felt the effect of the test oath when the House refused them permission to take it in 1867. T h e House had admitted them at its pleasure. Beck and Knott were angry. 4 ' Beck questioned the legality of the test oath itself. More questionable still, he insisted, was the House's use of that oath as a partisan weapon. T h e House had only a ministerial function in judging the qualifications of its members-elect. How could Congressmen justify the continued use of a wartime law which the Supreme Court had condemned so strongly? 44 Knott echoed Beck's arguments. T h e test oath should cease depriving whole states of representation. It attainted the electorates of the men whom it excluded from Congress. T h a t oath, used in the substantive manner which Congress had devised, was even more obnoxious than the Supreme Court had judged it. Yes, Knott acknowledged, the House was the judge of the qualifications of its members. But what jurist writes the laws upon which he decides? T h e test oath went far beyond the requirements which the Framers had written into the Constitution. 45 Did not the Fourteenth Amendment justify these premises; did it not disfranchise only a small group of rebels? Knott insisted that this was a tacit admission by Congress that the test oath was wrong in spirit if not in law, that half a great nation could not be treated as traitors, that clemency coud erase the penalties for past error.·"® Republican Congressmen defended the majority report. Loyalty, maintained Cook of Illinois, was always a qualification for the government's servants. If Congress permitted each claimant for a seat to judge if he were fit to take the test oath then nothing would prevent

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the leaders of the rebellion from returning to the legislative halls of the nation. 4 ' By a margin of five votes the Republican carried the majority report. Brown would have no chance to take the test o a t h . " T h e third Kentucky election case involved Samuel McKee's claim to the Congressional seat which John D. Young had won. Here a new element entered the situation. McKee was a Radical Republican. In his previous terms in Congress, McKee had supported the Radical program and had vigorously defended the test oath. In 1867 Young had defeated him in Kentucky's Congressional election. McKee claimed that Young was disloyal, and that the votes of unpardoned ex-rebels had given him electoral victory. Young denied the charges and was willing to take the test o a t h . " T h e House Elections Committee decided against Young, and recommended that the House refuse him the oath of office. But it also recommended that McKee remain excluded, for he had not received a majority of votes in the disputed election. T h e minority of that committee pleaded for an abandonment of the substantive interpretation of the test oath. T h e test oath, according to the dissenters, was "not [meant] to introduce into this country the odious doctrine of constructive treason." 50 In the House the debate on Young's case reiterated these themes on sharply partisan alignments. On J u n e 22, 1868, a narrow Republican majority excluded Young from his seat, and admitted McKee in his place. 51 Kentucky's protests against Congress' exclusion of her delegates were unheeded. Its Democratic legislature and governor left unfilled the seats which Congress had refused to the state's elected representatives. Subsequently Kentuckians elected John Young Brown, whom Congress had condemned as unfit for office, as its Congressman and governor. 5 ' Tennessee's delegation to the Fortieth Congress also ran afoul of the test-oath rule. Partisan alignments were reversed in the cases of three Tennessee Representatives, however, when Democratic Congressman James Brooks of New York accused them of past disloyalty. T h e three men Brooks accused were Radical Republicans representing "Parson" Brownlow's organization. T h e i r party supporters in the House sought to find justification for reversing their own rule regarding denial of the test oath where imputations of disloyalty existed. They won their point in two of the three cases; James Mullins and William B. Stokes took the test oath. After all they had said to the contrary a majority of the House decided that it was u p to the consciences of these two men to decide if they felt free to swear to their past fidelity.53 T h e third case involved R. R. Butler. Brooks' evidence against him seemed very strong. T h e House referred his case to the Elections Committee for judgment. 54 In February 1868 that committee reported. T h e i r evidence proved

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Butler a member of Tennessee's 1861 secessionist legislature. Butler insisted, quite convincingly, that he remained in that group to work for the U n i o n . Subsequently he had served honorably in the federal forces. T h e committee was convinced of his real loyalty, but it warned the House that B u t l e r remained barred from his seat by the letter of the test-oath law. "Whatever may have been his motives the fact still remains that he took and accepted the office which he will be compelled to swear that he has not taken or accepted," the committee regretfully reported. A possible solution which the committee suggested involved omitting from the oath all references to past officeholding under rebel a u t h o r i t y . " It was precisely the modification McCulloch had sought in 1866! A new factor appeared when, in March 1868, the House began consideration of the committee's report. Before the war Butler had taken an oath to support the United States, thus coming within the provisions of the third section of the Fourteenth Amendment. Congress could remove the disabilities of certain classes of ex-rebels like Butler when that Amendment was ratified. But the cleansed ex-Confederates still could not take the test oath. Consistency demanded that the Republicans advocate a modification of the test oath to square with their Constitutional amendment. However, some Radicals were determined to maintain that oath unimpaired, even if it meant that a sterling Unionist and conscientious Radical like Butler could not become a Congressman. Democrats enjoyed underlining the subjective manner in which their opponents approached the problem. Was Butler's case different from that of Kentucky's J o h n Young Brown, w-hom the House had excluded? Ohio's Mungen asked, "Does voting the Republican ticket wipe out the crimes of those who . . . fought . . . against the U n i o n ? " 5 6 T h i s was not the first time that the test oath had faced attack on the floor of Congress. Democrats had sought to repeal or modify it ever since the end of the war. Early in 1866 Ohio Representative Finck offered bills to these ends. Finck argued that Johnson's amnesty measures ended the need for the oath. His pleas were met by T h a d deus Stevens' resolution that Congress enforce the test oath rigorously." Southerners like Charles Gayarre wrote to prominent Radicals to seek similar relaxation of the oath requirement. Gayarre wrote a well-conceived historical attack on all test oaths, and sent it to Charles Sumner, who seemed little affected by these arguments. 58 Perhaps he was more impressed by similar pleas from Southern supporters of the Radical program. From C. R. Mobly, member of Florida's U n i o n party executive committee, Sumner received an appeal for a modification of the test oath. Mobly described the plight of ardent patriots like himself who had no choice but to support the

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rebellion. 59 Simeon Corley, a prominent South Carolina Radical, feared that the test oath ". . . will keep out . . . [of federal offices] some of the best and kindest of our people, who fear that they might have aided and abetted . . . [the rebellion] by feeding their poor children and brothers and neighbors in the [Confederate] service." 60 Other prominent Republican politicians received similar communications from the South. These pleas increased in volume and intensity after Congress enacted its reconstruction legislation. For the Radical Southern governments found themselves electing men to Congress who were disqualified under the Fourteenth Amendment as well as the test oath. Certainly Congress could relieve those who suffered from the terms of the Amendment. But for such men, like Tennessee's Butler, the test oath still remained a bar. T h e Southern Radicals recognized the threat which the test oath held for the success of their organizations; Radicals of Florida and Georgia petitioned Congress for a modification of the test oath so as to admit all persons who have aided or abetted the late war against the United States to holding office therein, provided such persons heartily regret the past, and are earnestly attached to, and are determined to labor for the reunion of the States on the basis of the Reconstruction acts. 61

Butler's case gave the Radical majority in Congress a chance to escape from the imbroglio into which the test-oath requirement had placed them. Massachusetts' Dawes, chairman of the House Elections Committee, pleaded for Butler's admission. Amazingly, Dawes denied the House the right to pass judgment on Butler's past. In previous instances Dawes had vigorously championed that right. 62 Iowa's Price made the conscientious Radical position clear: I look upon this test oath as the safeguard of the Republic, and while it may operate injuriously u p o n one man . . . better that some man as Mr. Butler shall suffer . . . than that we should abate one jot or tittle of the stringency of the test oath which, I believe is the only barrier to prevent disloyal men from getting places in Congress. 63

T h e Democratic Congressmen relaxed, and enjoyed the spectacle of Republicans working for them. Democratic journals made a field day of Radical inconsistency. 64 Consistency could not stand before the Republicans' need for the electoral support of the reconstructed governments in the approaching 1868 election. O u t of the debate on Butler's admission two bills emerged. One was a special measure relieving Butler of his political disabilities and prescribing a simple oath of future fidelity for him. T h e second proposed a general law applying to all whom Congress

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might relieve under the Fourteenth Amendment and specifying a similar oath for them.®5 Dawes led the fight for the bills in the House. His chief opponents were Radicals, like Iowa's Price, who viewed the oath as the last barrier excluding ex-rebels from Congress. But the bills passed the House by more than a two-thirds vote, and found sponsorship in the Senate under T r u m b u l l ' s leadership.6® Republican Senators divided sharply. Some Radical leaders advocated weakening what they had made a basic element in their dominance. Other Radicals opposed them. Some, like Buckalew of Pennsylvania, reminded colleagues of their votes against Patterson's and T h o m a s ' admission. 61 On J u n e 11, 1868, the Senate voted on admitting Butler by a special oath. Twenty-three votes for the measure came from Republican Senators. Five negative ballots were cast by die-hard Radicals, Wade among them. And twenty-six Senators, in which group Sumner, Bayard, Chandler, and Saulsbury made strange company, absented themselves from the balloting. 6 8 On J u l y 11, 1868, the general bill to modify the test oath became law. It specified, for those freed by Congress of political disabilities, the following oath: I, A. B., do solemnly swear (or affirm) that I will support and defend the Constitution of the U n i t e d States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, a n d that I will well and truthfully discharge the duties of the office on which I am about to enter. So help me God.®9

As Tennessee's Republican Congressman Maynard said, the new oath law opened "a side door to let in a friend of the Government, while . . . [it] kept the main entrance guarded to keep out its enemies." 7 0

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[The Radicals] . . . have robbed the Executive of the prerogative of pardon, rendered null and void the acts of clemency granted to thousands of persons under the Constitution, and committed gross usurpation by legislative attempts to exercise his power in favor of party adherents.—ANDREW JOHNSON·

"

W

CAN NEVER H O P E , " WROTE J A M E S RUSSELL L O W E L L TO E. L. GOD-

kin late in 1868, " t o reconstruct the South except through its own leading m e n , nor ever hope to have them on our side till we make it . . . c o m p a t i b l e with their honor to be s o . " 1 Many Americans, N o r t h and S o u t h , had reached a similar conclusion, and this realization formed a primary issue of the 1868 campaign. T h a t the ironclad oath was fundamental to R a d i c a l Reconstruction, that the modification of the test oath was a necessary preliminary to national U n i o n — s u c h arguments were political a m m u n i t i o n too useful for Democratic spokesmen to leave idle. M a t t h e w Carey, J r . , listed the test oath as one of " t h e abominations of the D e m o c r a c y " in a partisan h a n d b o o k he assembled for the 1868 campaign. August B e l m o n t convened the D e m o c r a t i c National Committee with a protest against " . . . test oaths alike revolting to justice and civilization." B e l m o n t ' s words received Salmon P. Chase's support; the jurist agreed that Congress had gone too far in disfranchising " . . . all u n a b l e to take its prescribed retrospective o a t h . " 2 Southern conservatives j o i n e d in the chorus; a Louisiana mass meeting resolved against " . . . immoral test oaths which placed . . . citizens in the alternative o f either p e r j u r i n g themselves by subscribing them, or losing all their political rights by refusing to take t h e m . " A n d the indefatigable Samuel Sullivan C o x stumped the Northeast c o n d e m n i n g test oaths in particular and R e p u b l i c a n s in general. 3 As energetically, the R e p u b l i c a n s defended their reconstruction program and their use of the ironclad test oath. T h e y termed all those who questioned the constitutionality of that law as " C o p p e r h e a d s " and refused to agree that the Supreme Court's condemnation of such * Farewell Address, March 4, 1869, Applcton's Annual Cyclopaedia,

1S69, p. 591.

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legislation bound them to abandon the oath law. Instead, Republican spokesmen restated the dissenting opinions in the Garland and Cummings cases and made a minor party hero of Justice Cartter of the District of Columbia's Supreme Court who had refused to abide by the higher court's decision. T h e test oath, Republicans warned, was the nation's safeguard. Abandon it, let the Democrats win in 1868, permit them to repeal loyalty-testing laws, and the Negro faced disaster, the Southern Unionist would meet tragedy. 4 And the Republican party won the election. Yet even in the first flush of electoral victory the Radical minority could not prevent payment of salaries due the unsworn Treasury employees who had, in 1865-66, served as assessors in the South. In the intervening years there had been several unsuccessful attempts to secure an appropriation for these men. James Wilson, Republican Chairman of the House Judiciary Committee in 1867, expressed his desire to see " . . . justice done to an innocent group of men to whom the Nation has a binding d e b t . " 5 Almost simultaneously the Senate approved a resolution authorizing payment of the long overdue salaries. News of these actions appeared in the press; from T e x a s and South Carolina came inquiring letters from the men concerned. " W a s it true," one asked McCulloch, "that we shall at last see the money which might have prevented great hardships had we received it last year?" B u t McCulloch could offer no hope of immediate relief. 6 T w o years later McCulloch had still to reply to such inquiries that Congress was ". . . debating the subject, but I can offer you no great prospects for payment." 7 Publicity helped the nonjurors; the Nation echoed wide journalistic opinion when it editorialized that " T h e r e can be no doubt that these men ought to be paid for the services they rendered whatever should be done with the authorities who set aside a law of Congress." 8 In mid-1870 Congress appropriated funds to pay the unsworn Treasury personnel. T h e Civil Appropriations Act (July 15, 1870) permitted Grant's Secretary of the Treasury to receive claims from ". . . such persons as were . . . employed in the insurrectionary S t a t e s . . . in 1865 and 1866." B u t another law demanded that all persons making claims upon the U n i t e d States must take the ironclad test oath. Grant requested his Attorney-General to resolve the conflict. Amos T . Ackerman submitted his opinion in August 1870. He was positive that the 1870 Appropriations Act ". . . could have been passed with no object but that of removing the impediment [of the test-oath requirement]. T h e debates . . . in Congress show that such was the interpretation in passing it, and that, I am sure, is its legal effect." 9 Almost four years to the day after the last nonjuror left the Treasury service, government warrants went out to them. 1 0

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T h e Radicals had to retreat from insistence upon the test oath on another occasion in 1870. T h e Ninth Census of that year encountered an obstacle in the South. Census-takers were federal employees; the test-oath requirement faced them. In the South a familiar theme was repeated by worried supervisory officials, who were unable to secure enough personnel who could (or would) take the test oath. Congress finally had to sanction a special oath for the census-takers." Nor could Republican desire for patronage in the South make the test oath workable. In February 1869, Congress ordered the removal of civil officers in Mississippi, Virginia, and Texas, who had not taken the ironclad oath. By May, the Nation could report that judges were unavailable under this requirement, and that justice could not be done. 12 Only 392 officeholders out of 5,446 coufd take the oath in Virginia; Canby in Texas reported an even worse situation, and Ames in Mississippi replaced about 2,000 nonjurors with Negroes and nonresident whites. Not until the Attorney-General ruled that Virginia's legislature might meet without swearing to its past loyalty in order to secure federal recognition, was the test-oath knot cut in that state. H a d the legislators found it necessary to take the ironclad oath, Virginia's restoration would have been delayed even longer. 13 Despite the opposition of staunch defenders of the test oath like Sumner, military authority in these three states ceased when Grant permitted the voters separate choices on proscription of their leaders. H e permitted also the use of the 1862 or the 1868 oath of allegiance of voters and officeholders while the state governments were still provisional. 14 And a similar story came from Georgia and Louisiana, where insistence u p o n the ironclad oath crippled civil government and denuded the legislatures. 15 No, the test oath did not work in the South even when Radical state governments, supported by federal bayonets, sustained by a Congress dominated by Radicals, countenanced by the sympathetic President Grant, directed the reconstruction process. Partisan purists like Missouri's Republican Senator Drake fulminated at ". . . an unrepentant Southern population which regards that oath as the symbol of its degradation." 1 6 However ungrateful Southerners might have been for the blessings of reconstruction, they continued to send many representatives to the national Congress who found the ironclad oath a bar to entrance, an obstacle undiminished by the modification of the oath requirement Congress had permitted in 1868." T h e modified oath of office of 1868 had applied only to ex-Confederates whose disabilities Congress had removed under the Fourteenth Amendment. But most Southerners were not subject to the 1868 law, for they had never held office before the war. T h i s great majority of ex-Confederates had to take the ironclad test oath if they wished to

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hold federal office. They could not. And Southern electorates chose disfranchised Democrats to represent them, rather than disfranchised Republicans, for whom Congress might provide special consideration. Radical Congressmen were nettled by this display of ingratitude by their Southern disciples. As Edmunds of Vermont commented when ex-Congressman Η. V. M. Miller appeared to take his seat as Senator from Georgia: If the State of Georgia is exceedingly anxious to have herself represented in this body she can . . . elect men who can comply with the [test-oath] law and enter upon the performance of their duties.18 Georgia's electorate had chosen Congressmen in April 1868 under the supervision of military authorities. General Meade, in charge of that state, had decided that J . H. Christy had won a Congressional seat. However, Governor Bullock claimed that Christy was ineligible, for he was disqualified under the Fourteenth Amendment. Bullock gave a duplicate credential to J . A. Wimpy. T h e House Elections Committee found that Wimpy had been a Confederate volunteer. T h e test-oath requirement disqualified him. T h e House refused to admit either claimant and the seat remained vacant for the duration of Congress.18 T h e House was so burdened with similar disputed elections arising from the 1868 elections that it adopted a regular procedure for handling them. Its Elections Committee automatically would investigate all contested elections cases involving alleged inability of either claimant to take the oath of office.20 Such a case arose when Kentucky's Representative-elect John M. Rice found his newly won seat threatened by disloyalty charges. In March 1869, the House adopted the unusual procedure of swearing Rice in under the ironclad oath, and then assigning his case to the Elections Committee. Rice was a Radical; his vote was needed. When the committee made its report in June 1870, the partisan nature of the proceedings was underlined. For the committee found that Rice was indeed unable truthfully to swear to the test oath. He was disqualified under the Fourteenth Amendment, for which Congress had not relieved him. Yet the House, still dominated by Republicans, rejected the committee's findings and permitted Rice to retain his seat. 21 When Louisiana's troubled politics elected Louis St. Martin to Congress in November 1868, he faced a contested election based on two counts. J . H. Sypher claimed that St. Martin had won by fraud, and that he was in any case ineligible to take office since he was unable to take the test oath. T h e House Elections Committee investigated this case and in April 1870 recommended that neither claimant get the seat. Since the forthcoming elections might substitute better

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a Η -wn ends); if President Johnson will assume the actual control of an administrai ::, all of whose parts are required to operate harmoniously; . . . he will have ι ause to fear the Radicals." Quoted in D. Mowry, "Letters of Edward Bates an : le Blairs," Missouri Historical Review, X I (January 1917), 124. " Case of A. VVillard, letter of T . Callicot to Speed, Department of Justice, Appointment Pa; , South Carolina, Record Group 60, National Archives. " W . M. R( 'Son, J r . , Justice in Grey (Cambridge: Harvard University Press, 1941), pp. 595-' Cited hereafter as Robinson, Justice in Grey. " Ibid. " W. L. Fit ig, The Civil War and Reconstruction in Alabama (New York: Columbia Uni sity Press, 1905), pp. 371-72. Hereafter cited as Fleming, Alabama. 15 W. A. Du> lg, Essays on the Civil War and Reconstruction (revised ed.; New York: Peter S' ι, 1931), p. 160. Cited hereafter Dunning, Essays. " I n this in: ice Chief Justice Chase held that such officials were ". . . necessary to the punish; ι ;it of crime, the protection of life and property, and must be held qualified to a . . even if unable to take the test oath, as long as no others are to be had." ΛΥ n, May 27, 1869.

Chapter 6

Congress, the Executive, and the Test Oath

'Quotatione in O. J . Hollister, Life of Schuyler Colfax (New York: Funk & AVagnalls, 188· o. 274. Hereafter cited as Hollister, Colfax. 1 McCulloct ten and Measures, p. 377; Stryker, Johnson, p. 329. •L. B. Ricl i.dson, William E. Chandler, Republican (New York: Dodd, Mead 8c Co., 1940), pp '-63 (cited hereafter as Richardson, Chandler); Beale, Critical Year, p. 118; Welles, Diary, II, 343. 'Stryker, Johnson, p. 329; McCulloch, Men and Measures, p. 377. 1 H. S. Schell, "Hugh McCulloch and the Treasury Department," Mississippi Valley Historical Review, X V I I (December 1930), 416; McPherson, North Carolina Letters, p. 63. ' Had not the Senate brought the matter up, Johnson would have placed the subject before it; McCulloch, Men and Measures, pp. 227-28; Nation, December 6, 21, 1865. I This report, never printed, is in McCulloch to the President of the Senate, December 18, 1865, Treasury Department, Letterbooks, T o President of the Senate and Speaker of the House, February 14, 1855 to December 31, 1866, III, Record Group 56, National Archives (hereafter cited as McCulloch, Report). ' Ibid. On the importance of the assessor's function see L. F. Schmeckebier and F. A. Eble, The Bureau of Internal Revenue (Baltimore: Johns Hopkins University Press. 1923), p. 9. * McCulloch, Report. Note that the test oath law forbade federal salaries to any employee who had not subscribed the oath provided in its text. ω U. S. Congress, Senate, Letter of the Postmaster General, Senate Executive Doc. 34, 39th Con^., 1st Sess.; J . C. Underwood to Chase, September 14, 1865, Chase MSS, Vol. XCV, Library of Congress; U. S. Congress, Senate, Letter of the Secretary of the Treasury, Senate Executive Doc. 38, 39th Cong., 1st Sess., p. 3. I I U. S. Congress, Senate, Report of the Secretary of War, Senate Executive Doc. 1, 39th Cong., 1st Sess., pp. 1-2. Stanton's statement that he had never hired nonjurors is open to question; see Welles, Diary, II, 445. u Blaine to McCulloch, January 2, 1866, McCulloch MSS, Vol. II, Library of Congress. "Nation, January 11, February 1, 1866; Congressional Globe, 39th Cong., 1st Sess., p. 71. T h e resolution later became a rider to the 1866 Naval Appropriations Act; ibid., Appendix, p. 319. " Nation, January 11, 1866.

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61-70 " A. R. Childs (ed.), The Private Journal of Henry Ravenel, 1859 1887 (Columbia: University of South Carolina Press, 1947), pp. 301-2. Cited hereafter as Ravenel, Journal. "Welles, Diary, II, 445, 450, 453-54; Brigham, Harlan, p. 211; McCulloch. Men and Measures, pp. 227-28. " U. S. Congress, House, Message from the President, House Executive Doc. 81, 39th Cong., 1st Sess., p. 1. Part of this report, without supporting documents, is in McCulloch's Men and Measures, pp. 228-32, and the full text of Johnson's statement is in Richardson, Messages and Papers, VI, 382. In early April 1866, Sumner had secured passage of another Senate resolution calling upon the Secretary of the Treasury and the Postmaster-General to notify the Senate if they had kept their past promises to employ n o more unsworn personnel. Both McCulloch and Dennison replied affirmatively; the former had, of course, the previously recruited nonjurors still on his department's roster. And neither Secretary spoke, at this time, of the effects of the test-oath requirement on the efficiency of their departments; U. S. Congress. Senate, Letter of the Postmaster General, Senate Executive Doc. 34, and Letter of the Secretary of the Treasury, Senate Executive Doc. 38, 39th Cong., 1st Sess. * U . S. Congress, House, Message from the President, House Executive Doc. 81, 39th Cong., 1st Sess., pp. 1-2. »Ibid. n

Ibid., p. 2. »Ibid., p. 5. u Ibid. As late as 1870, Ambrose Dudley Mann wrote to Jefferson Davis, stating that Southerners should consider federal offices disreputable; Louisana Historical Association. Calendar of the Jefferson Davis Postwar Manuscripts (New Orleans: [typeset], 1943), p. 14. " I n some areas, even the women could not take the test oath: see Fleming, Alabama, pp. 371-72. On the reminiscences of a California postmistress, a recent arrival from Vermont, see Fannie S. Spurling (ed.), Postmarked Vermont and California, 1862-1864 (Rutland, Vt., 1940), p. 29. In Georgia at this time the mail facilities were generally restored in the physical sense, but the test oath still was a barrier to the appointment of sufficient postmasters. Army personnel took over manv post offices here, a n d they demanded that all patrons of the postal service show that they had taken the Presidential amnesty oath; see C. M. Thompson. Reconstruction in Georgia, Economic, Social, Political, 1865-1872 (New York: Columbia University Press, 1915), p. 143. In South Carolina, too, military personnel ran the post office: "Our Pfost] Offfice] is now kept by the Captain of the U. S. troops, Mr. Ford not being able to take the oath he h a d to give it up," recorded one diarist, who had himself refused a federal job because he would not take the test oath. "I suppose a vast n u m b e r of offices must now be closed in consequence of this [test-oath] measure." In Ravenel, Journal, p. 282. " U . S. Congress, House, Message from the President, House Executive Doc. 81, 39th Cong., 1st Sess., p. 5. " U. S. Congress, Senate, Letter of the Secretary of the Treasury, Senate Executive Doc. 38, 39th Cong., 1st Sess., passim. " U. S. Congress, House, Modification of the Oath of Office, House Report 51, 39th Cong., 1st Sess., p. 3. News of the Committee's decision had "leaked." T h e Nation reported its stand two days before the report was made; see issue of April 26, 1866.

"Ibid.; is it "temporary inconvenience," the Nation asked, when the Secretaries are ". . . positive in the opinion that the government cannot function and collect its dues at the South without a relaxation of this law?" For committee statement, see U. S. Congress, House, Modification of the Oath of Office, House Report 51, 39th Cong., 1st Sess., p. 4. " Ibid., p . 7.

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NOTES

61-70 »Ibid., p. 9. ® Ibid., pp. 5-6. " Ibid., p. 6. M Ibid., p. 10. " Ibid. " W e l l e s , Diary, II, p. 319. ** Β. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (New York: Columbia University Press, 1914), p. 197, described Rogers thus: " H e belonged to that brand of Democrats designated contemptuously as 'copperheads.' . . . [The Republicans] correctly estimated the value of his remarks as political capital for themselves, as convenient texts to cite." Cited hereafter as Kendrick, Reconstruction Committee Journal. " U. S. Congress, House, Modification of the Oath of Office, House Report 51, 39th Cong., 1st Sess., pp. 11-12. " Ibid., p. 12. Rogers received the information on the agreement of the two Secretaries on the oath-modification question in letters from McCulloch and Dennison reproduced in his report. " Rogers' arguments are reminiscent of the debates in Congress over the passage of the attorney's oath bill in 1865. He read from Story's Commentaries, Sect. 624, Madison in Federalist 52, Marshall and Blackstone; ibid., p. 13. " Ibid., pp. 12-13. " Nation, March 7, 1867. T h e editorialist considered that Chandler " . . . not only disgraced himself but . . . the Senate and the country." a Ibid., J u n e 26, 1866. " Quoted in a pamphlet which severely condemned Democratic arguments. T h e pamphlet was widely distributed in the 1866 campaign; Union League, Is the South Ready for Restoration, p. 11. "Nation, May 1, 1866. T h e suggestions for curtailments of service are in Congressional Globe, 39th Cong., 1st Scss., pp. 594, 838-39. T h e Nation had advanced the idea that Negro postmasters would solve the problem of securing such officials who could take the test oath: " W h y does not Mr. Dennison choose his postmasters from the two-thirds of the inhabitants who can take this retrospective oath without a particle of perjury, from the ever loyal blacks of South Carolina?" inquired one contemporary writer; Nation, September 9, 1865. It was an idea that came up again when the oath modification proposal was made; ibid., January 1, 1866. " McCulloch, Men and Measures, pp. 232-33; Nation, March 7, 1867; Charles H. Coleman, The Election of 1868 (New York: Columbia University Press, 1933), pp. 162-63. " U. S. Congress, House, Message of the President, House Executive Doc. 81, 39th Cong., 1st Sess., p. 2.

Chapter 7 — T h e Personal Factor in Loyalty Oaths 1 Quoted in McCulloch, Men and Measures, pp. 232-33. 'Ibid., p. 232; for details on the bill see Congressional Globe, 39th Cong., 1st Sess., p. 2980. * Details on Johnson and Trumbull are in Steiner, Reverdy Johnson, p. 164. According to McCulloch, Sumner's antipathy towards him was very personal. He ascribed this to their opposite political convictions, differences on the Negro question, and because McCulloch had removed Sumner's brother-in-law from a political sinecure. In 1872, the two men met in London, where they renewed their friendship, ". . . and pleasant relations were established between us, which continued as long as we lived." See McCulloch, Men and Measures, p. 233. 4 Ibid. "Schell, "Hugh McCulloch and the Treasury Department, 1865-1869," op. at., p. 420.

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70-76 • Davis, Florida, p. 365 n. ' Nation, February 8, 1866, February 22, 1866. I U. S. Congress, Senate, Letter of the Postmaster-General, Senate Executive Doc. 38, 39th Cong., 2d Sess., passim., March 2, 1867. • U. S. Congress, House, Clerks in Departments, House Executive Doc. 115, 39th Cong., 1st Sess., pp. 1, 10, 13. "Ibid., House Executive Doc. 117, 39th Cong., 1st Sess., passim. II On information concerning nominee's ability to take the test oath, see letters of E. D. Morgan to General D. Sickles, May 29, 1866, Johnson MSS, Vol. XCVI, Library of Congress; Z. Chandler to same, J u n e 22, 1866, ibid., Vol. XCVII. " C h a r l e s Sumner, The One Man Power Versus Congress: An Address at the Boston Music Hall, October 2, 1866 (Boston, 1866), p. 9. Hereafter cited as Sumner, The One Man Power. U E . Parsons to McCulloch, May 21, 1866, Treasury Department, File of E. McDowell, Personnel Records, First District, Alabama, Record Group 56, National Archives. " McCulloch, to J. F. W. Walter, J u n e 4, 1866, Johnson MSS, Vol. XCVI, Library of Congress. " J . F. W. Walter to McCulloch. J u n e 9, 1866, ibid. " J . H. Norwood to McCulloch, J u n e 11, 1866, Treasury Department, Personnel Records, First District, South Carolina, Record Group 56, National Archives. " Ε . M. Lazarus to McCulloch, J u n e 9, 1866, in ibid., and as reprinted in a newspaper account, which is headed, " T h e Test O a t h — T h e following correspondence will explain itself." Lazarus' letter then follows. T h e newspaper from which this clipping is taken is not identified; the account is in Johnson MSS, Vol. XCVI, Library of Congress. " F i l e of W. Leitch, Treasury Department, Personnel Records, South Carolina, Record Group 56, National Archives. " T h e writer of this letter advanced over $600 to his assistants, who were in even worse financial shape than he; R. B. Kingsbury to McCulloch, July 3, 1866, Treasury Department, Personnel Records, Second District, Texas, Record G r o u p 56, National Archives. Not all the nonjurors, it will be noted, were asked to resign. It appears, although a definite conclusion cannot be drawn from t h e available evidence, that a very few were retained because of the irreplaceable n a t u r e of their services. See case of J. M. Mathews, ibid. McCulloch paid such men by recourse to the surplus funds of other departments; Sumner, The One Man Power, p. 9. w See infra, p. 136. " A most interesting study of the limitations of subjective analyses of personal behavior is available in Gordon W . Allport, Personality: A Psychological Interpretation (New York: Henry Holt & Co., 1937), especially Part IV, " T h e Analysis of Personality." "See, for instance, the letter from Jacob T . Brown, High Point, North Carolina, March 11, 1867, in J. A. Padgett, "Reconstruction Letters from North Carolina," North Carolina Historical Review, XVIII (April 1941), 192-93. 11 On the meagerness of pay, see the letter from S. G. Forbes to a friend, July 30, 1866: "I have an office which keeps me busy most of the time. I hold the office of Assistant Assessor of Internal Revenue . . . I get paid when I work. I make just enough for spending money." Quoted in R. Partin, "A Connecticut Yankee's Letters from Conecuh County, Alabama, 1847-1866," Alabama Review, IV (January 1951), 78. On the desirability of even this pittance, see letter from an ex-colonel of t h e 84th Illinois Regiment who moved to Alabama in 1865. He wrote to Lyman T r u m bull (August 7, 1865), and described his lack of success in Illinois. H e had gone to Alabama, ". . . where everybody is broke or crippled and where I could have an even start." He then sought a federal job as district attorney. T r u m b u l l MSS, Vol. LXI, Library of Congress. " A rather complete discussion of this factor of Northeners in the South applying for federal jobs on the basis of ability to take the test oath is in various letters in t h e file of A. J. Willard. Willard was federal District Attorney in South Carolina in

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NOTES

70-76 1866. His correspondence makes the following clear: (a) that the presence of Union veterans depended largely upon geographical location, and (b) that in these locations (usually urban centers) most of these veterans were anxious for federal posts. Politically, the majority of these men were Republicans. They sought the patronage of a nominally Republican administration. Department of Justice, Appointment Papers, South Carolina, Record Group 60, National Archives. " W . B. Woods to Dennison, January 28. 1866, Johnson MSS, Vol. L X X X V I , Library of Congress; Richardson, Chandler, pp. 65-66, described such a tour of William E. Chandler, Assistant Secretary to McCulloch; see also Worth, Correspondence, I, 478, 507, 556, 572, 606, 653-54; II, 662-63, 667-68. " S e e U. S. Congress, House, Modification of the Oath ο/ Office, House Report 51, 39th Cong., 1st Sess., p. 9. " G. W. Dennis to Sumner, March 1, 1867, Sumner MSS, Vol. CLIV, Item 88, Houghton Library, Harvard University. a J . S. Dunning to Sumner, March 1, 1867, ibid., Vol. CLIV, Item 86. "Nation, September 7, 1865. " Welles and Johnson rejected the idea of appointing Frederick Douglass to the head of the Freedmen's Bureau. T h e y " . . . were not prepared to appoint . . . to so responsible a position a person because he is a negro or a mulatto. Mr. Sumner and others have expressed a hope that negroes would fill public and trusted positions, but I cannot." Entry for July 26, 1867, Welles, Diary, I I I , 142-43. 11 T . C. Callicott to James Speed, April 13, 1866, in the personnel file of A. J . Willard, Department of Justice, Appointment Papers, South Carolina, Record Group 60, National Archives. " Τ . E. Chamblin to Johnson, March 17, 1866, Johnson MSS, Vol. X C I , Library of Congress. " J . R . Cox to Johnson, January 4, 1868, in the personnel file of A. L. Wallace, Department of Justice, Appointment Papers, Missouri, Record Group 60, National Archives. Most of these men were also Republicans. During the war, few Democrats had received federal posts in the territories. It ". . . was urged that disloyalty . . . increased the importance of having good reliable Republicans in office." W. F. Amy to Seward, January 6, 1865, quoted in E. Pomeroy, "Carpet-Baggers in the Territories, 1860-1890," Historian, II (Winter 1939), 54. " G . W . Dillard to Johnson, December 4, 1865, Johnson MSS, Vol. L X X X I I , Library of Congress; J . C. Bradley to same, October 13, 1865, ibid., Vol. L X X I X ; November 15, 1865, ibid., Vol. L X X X I ; G. W . Brooks to Chase, March 20, 1866, Chase MSS, Vol. X C V I , ibid. " J . H. Norwood to McCulloch, J u n e 11, 1866, Treasury Department, Personnel Records, First District, South Carolina, Norwood's File, Record Group 56, National Archives. " D e p a r t m e n t a l circular to all Treasury offices, February 2, 1867, which refers to unavailable previous orders of similar purport dating back to mid-1866, Secretary of the Treasury, Letterbook, Department Order Book, March 4, 1861, to March 2, 1869, p. 286, Record Group 56, National Archives. " A . J . Stone to Johnson, December 22, 1865, Johnson MSS, Vol. L X X X I I I , Library of Congress. »Ibid. " P . H. Buck, The Road to Reunion, 1865-1900 (Boston: Little, Brown & Co., 1947), p. 10. Cited hereafter as Buck, Road to Reunion. * F. A. Sawyer to Major-General D. Sickles, J u n e 7, 1866, Johnson MSS, Vol. XCVI, Library of Congress; W. H. Vasser to McCulloch, June 15, 1866, Treasury Department, Personnel Records (case of W . H. Vasser), Record Group 56, National Archives; J . C. Underwood to S. P. Chase, September 14, 1865, Chase MSS, Vol. XCV, Library of Congress; Ravenel, Journal, pp. 301-2. " U. S. Congress, Senate, Letter of the Secretary of the Treasury, Senate Executive Doc. 38, 39th Cong., 1st Sess., passim. " Ibid., p. 3; file of A. G. Baskin, Treasury Department, Personnel Records, South Carolina, Record Group 56, National Archives.

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186

76-85 Ibid. " U. S. Congress, House, Message of the President, House Executive Doc. 81, 39th Cong., 1st Sess., p. 4; file of J . M. Mathews, Treasury Department, Personnel Records, Virginia, Record Group 56, National Archives. «•R. Albert (?) to McCulloch, May 24, 1866, Treasury Department, Personnel Records, Third District, Mississippi, file of W. H. Vasser, Record Group 56, National Archives. Italics are Albert's. "L. T. Harridan and C. R. I. Curson to McCulloch, May 25, 1866, ibid. " J u d g e R . A. Hill to McCulloch, May 26. 1866, ibid. Of such men, B. F. Perry, Provisional Governor of South Carolina, said, "1 do not believe any one was to blame in taking sides with his state after she seceded from the Union. He could not remain neutral. T h e Federal Government had withdrawn all protection. If he went against the State he was guilty of treason." Quoted in Kibler, Perry, p. 396. Persons less conscientious than Vasser claimed clear records of past Unionism for themselves in seeking federal posts in the South in this period. In one case, McCulloch presented Perry with a number of applications for Treasury posts in South Carolina. All the men in question professed strong past Unionism. Perry said, " I never heard of them as Union men." Ibid., p. 387. Vasser was no states-rightist, which school of thought Charles Francis Adams described as follows: " H e says they held that 'ultimate allegiance was due to the State which defined and conferred citizenship, not to the central organization which accepted as citizens whomsoever a State pronounced to be such.' " Quoted in H. C. Connor, John Archibald Campbell (Boston: Houghton Mifflin Co., 1920), p. 156. Cited hereafter as Connor, Campbell. * Judge R. A. Hill to McCulloch, May, 1866, Treasury Department, Personnel Records, Third District, Mississippi, file of W. H. Vasser, Record Group 56, National Archives. • W. H. Vasser to McCulloch, June 15, 1866, ibid. " D . Tullar to A. W. Smith, Acting Second Comptroller, May 10, 1866, ibid., file of D. Tullar; U. S. Congress, House, Clerks in Departments, House Executive Doc. 117, 39th Cong., 1st Sess., p. 1, contains the House resolution requesting this information. " Ibid., pp. 7-8. a Ibid., pp. 9-10. T h e material on Tullar's promotion is in his personnel folder, in Treasury Department, Personnel Records, Record Group 56, National Archives. " E . D. Morgan to Sickles, May 29, 1866, Johnson MSS, Vol. X C V I , Library of Congress. ·* F. A. Sawyer to Sickles, J u n e 7, 1866, ibid. - Ibid. " Z. Chandler to Sickles, J u n e 22, 1866, and attached report, ibid., Vol. X C V I I . " All the material on McDowell is in his personnel file. Treasury Department, Personnel Records, First District, Alabama, Record Group 56, National Archives. " Ibid. " A . Mot to Chase, January 30, 1865, Chase MSS, Vol. XCV, Library of Congress. " On this, see the advice offered in the Richmond Whig, July 24, 1865, to " . . . take all the oaths with an almighty unction, and forthwith you will be made whole and . . . you will feel good for a long time." Quoted in the Nation, September 8, 1865. On oath violations, see pamphlet by S. Boyd, Speech on the Amnesty Proclamation, March 5, 1864 (n.p., n.d.) , p. 7. 11 Quoted in B. F. Morris, Christian Life and Character of the Civil Institutions of the United States (Philadelphia: George W. Childs, 1864), p. 264. " H. C. Deming, Speech on the President's Plan of State Renovation, February 27, 1864 (Washington: Gipson Bros., 1864), p. 8. "Nation, March 14, 1867, and see the issue of May 4, 1866. " G e r r i t Smith, No Treason in Civil War, Speech . . . at Cooper Union Institute, New York, June 18,1865 (n.p., 1865), p. 19. " S u m n e r to McCulloch, September 7, 1865, McCulloch MSS, Vol. I I , Library of Congress. β

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NOTKS

76-85 Chapter 8—Vacant Chairs in Congress • J o h n s o n to B. F. Pcrrv, N o v e m b e r 27, 186.5, J o h n s o n MSS, Vol. L X X X I , Library of Congress. 1 C. E. Chadsey, The Struggle Between President Johnson and Congress Over Reconstruction (New York: C o l u m b i a University Press, 1896), pp. 36-42. All t h e S o u t h e r n states but T e x a s h a d c o m p l e t e d t h e process by December 1865. Cited herea f t e r as Chadsey, Johnson and Congress. I W. E. Binkley, American Political Parties, Their Natural History (New York: Alfred A. Knopf, 1943), p. 250, says: " O n t h e issue of seating t h e m d e p e n d e d t h e f u t u r e of t h e Radical control of t h e G o v e r n m e n t a n d even the renaissance of the R e p u b l i c a n party." Binkley t h e n discusses t h e a l i g n m e n t s which might have resulted if t h e S o u t h e r n delegations e n t e r e d Congress. Cited h e r e a f t e r as Binkley, American Political Parties. A c o n t e m p o r a r y n o t e d t h a t t h e Radicals ". . . fear the South will coalesce with t h e C o p p e r h e a d s a n d get control of the G o v e r n m e n t . " W o r t h to B. S. Hedrick, May 14, 1866, W o r t h , Correspondence, I, 584-85. 4 Davis to S u m n e r , J u n e 25, 1862, S u m n e r MSS, Vol. L I X , Item 74, H o u g h t o n Librarv, H a r v a r d University. s R o b e r t Dale Owen, The Conditions of Reconstruction (New York: W m . C. Bryant & Co., 1863), p p . 7-9. ' J . W a t e r s to S u m n e r , J a n u a r y 8, 1864, S u m n e r MSS, Vol. LXVII, Item 35, H o u g h t o n Library, H a r v a r d University; speech of C. G o e p p , in The National Club on the Reconstruction of the Union (New York: G. B. T e u b n e r , 1864), p p . 7-9. See Chase's fears of false o a t h s in R a n d a l l , Lincoln the President, II, 191-92. ' W. F. M u n r o e to T r u m b u l l , J u n e 18, 1864, T r u m b u l l MSS, Vol. LVIII, Library of Congress. " S u m n e r , "Clemency a n d C o m m o n Sense," Atlantic Monthly, XVI (December 1865), 745-60; A l e x a n d e r H . Stephens, Recollections, cd. by M. L. Avary (New York: Doubleday, Page & Co., 1910), p. 335. Cited h e r e a f t e r as Stephens, Recollections. • W h i t e l a w R e i d , After the War (New York Wistach & Baldwin, 1866), p. 45; Gorh a m , Stanton, II, 252-53. 10 S u m n e r to Schurz, J u l y I I , 1865, Schurz, Correspondence, I, 267. II Final Report of the Congressional Committee Upon the Question of Reconstruction ( P h i l a d e l p h i a : U n i o n League, 1866), p . 3; S u m n e r , The One Man Power, p . 9; S u m n e r w r o t e to McCulloch, J u l y 12, 1866: "Congress has prescribed a n oath of office, which t h e newly a p p o i n t e d governors cannot take w i t h o u t p e r j u r y ; . . . a n d yet these persons a r e e n t r u s t e d with t h e s u p r e m e p o w e r in rebel States." McCulloch MSS, Vol. II, L i b r a r y of Congress. O n t h e amnesty o a t h , see McPherson, North Carolina Letters, p. 84. " Q u o t e d in Beale, Critical Year, p. 12. See t h e similar analysis in Ambler, Pierpoint, p. 435; G o r h a i n , Stanton, II, 249; R o b e r t S. Henry, The Story of Reconstruction (New York: Bobbs-Merrill Co., 1938), p . 10. Cited h e r e a f t e r as Henry, Reconstruction; R i c h a r d H . D a n a , Jr., The Reorganization of the Rebel States, Speech, Faneuil Hall, June 21, 1865 (n.p., n.d.), p . 4; T . C. Pratt to Barlow, August 18, 1865, Barlow MSS, C o l u m b i a University. u Chadsey, Johnson and Congress, p p . 28-48. " " T h e President's R e c o n s t r u c t i o n , " Christian Examiner, L X X I X (November 1865), 418; Buck, Road to Reunion, p. 12. " E. Littell to J o h n s o n , J a n u a r y 31, 1866, J o h n s o n MSS, Vol. L X X X V , Library of Congress; S. B. Schieffelin, The President and Congress (New York: 1867), p. 6; E. K e t c h u m to S u m n e r , J u n e 17, 1865, S u m n e r MSS, Vol. L X X I I I , Item 160, H o u g h t o n Library, H a r v a r d University. " Col. W . M. Grosvenor, " T h e R i g h t s of t h e States, a n d t h e Duties of Congress," New Englander, October 1865 ( p a m p h l e t r e p r i n t , n.p., n.d.), p. 4. " B u c h a n a n to R o b e r t T y l e r , August 3, 1865, B u c h a n a n MSS, New York Historical Society; Glicksberg, Whitman, p. 162; A d a m s to Adams, Sr., February 7, 1865, in

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85-90 W . C. Ford, A Cycle of Adams Letters, 1861-1865 (2 vols.; Boston: H o u g h t o n Mifflin Co., 1920), II, 252-53. " A listing of t h e S o u t h e r n delegates is in Blaine, Twenty Years, I I , 121. Hesseltine, Confederate Leaders, p. 5. " W a t t e r s o n t o J o h n s o n , October 20, 1865, J o h n s o n MSS, Vol. L X X I X , L i b r a r y of Congress. See also H . J . Pearce, Jr., Benjamin H. Hill (Chicago: University of Chicago Press, 1928), p . 20; Stephens, Recollections, p. 544. 11 For a p i c t u r e s q u e description of t h e way t h e N o r t h Carolina convention obeyed J o h n s o n ' s w a r n i n g , see A l e x a n d e r Jones, Knocking at the Door ( W a s h i n g t o n : McGill & W i t h e r o w , 1866), p . 22; see also H. J. Eckenrode, The Political History of Virginia During the Reconstruction (Baltimore: J o h n s H o p k i n s University Press, 1904), p. 37; E. P. Oberholtzer, A History of the United States Since the Civil War (5 vols.; N e w York: Macmillan, 1917), I, 133. O n resolutions of repeal, see G o r h a m , Stanton, I I , 257. 11 T h e m a n y references to this r u m o r a r e best discussed in J. C. Bradley to J o h n son, N o v e m b e r 15, 1865, J o h n s o n MSS, Vol. L X X X I , Library of Congress, a n d in a n editorial of t h e R o m e (Ga.) Enquirer, October 11, 1865, enclosed in t h e letter of J . A. Stewart to J o h n s o n , N o v e m b e r 13, 1865, ibid., Vol. L X X I X . " Andrews, The South Since the War, p. 241. " J . T . T r o w b r i d g e , The South, A Journey Through the Desolated States ( H a r t f o r d : L. Stebbins, 1866), p p . 587-88. " May 4, 1865, q u o t e d i n U n i o n League, Is the South Ready for Restoration, p. 9. " W o r t h to Dr. R . J. Powell, May 14, 1866, W o r t h , Correspondence, I, 583-84. See also letters f r o m W . E. Bond to T h a d d e u s Stevens, December 13, 1865, in Padgett, " R e c o n s t r u c t i o n Letters f r o m N o r t h Carolina," op. cit., p. 173; R . F. L e h n r a n t o S u m n e r , October 21, 1865, Vol. L X X V , I t e m 5, S u m n e r MSS, H o u g h t o n L i b r a r y , H a r v a r d University. 17 B. F. Perry to J o h n s o n , October 5, 1863, J o h n s o n MSS, Vol. L X X V I I I , L i b r a r y of Congress; J o h n s o n to Perry, N o v e m b e r 27, 1865, ibid., Vol. L X X X I ; W a t t e r s o n to J o h n s o n , J u n e 7, 1865, ibid., Vol. LXVI; J. Speed to T . W o o d , S e p t e m b e r 23, 1865, Attorney-General's Office, Letterbook I, p. 11, Record G r o u p 60, N a t i o n a l Archives; Nation, November 9, 1865. M G . W . Dillard to J o h n s o n , December 4, 1865, J o h n s o n MSS, Vol. L X X X I I I , L i b r a r y of Congress. ™ Q u o t e d in Eckenrode, op. cit., p p . 37-38. M J. C. Bradley to J o h n s o n , October 13, 1865, J o h n s o n MSS, Vol. L X X I X , Library of Congress. O t h e r letters of similar i m p o r t , representing an extensive collection of such communications, a r e in t h e resolutions of a N e g r o convention of Vicksburg, November, 1865, ibid., Vol. L X X X I ; G. L. Stevens to J o h n s o n , N o v e m b e r 13, 1865, ibid. " T h e q u o t a t i o n is in Andrews, The South Since the War, p . 373. See also J . C. Bradley to J o h n s o n , N o v e m b e r 27, 1865, J o h n s o n MSS, Vol. L X X X I , L i b r a r y of Congress; S o u t h e r n n e w s p a p e r c o m m e n t s enclosed in letter of J. C. Stewart to J o h n son, October 13, 1865, ibid., Vol. L X X I X . 22 C. E. L i p p i n c o t t to T r u m b u l l , August 29, 1865, T r u m b u l l MSS, Vol. LXI, ibid.; Paul Selby to same, F e b r u a r y 24, 1866, ibid., Vol. L X I ; G. F. G r a n g e r to T h a d d e u s Stevens, J a n u a r y 11, 1865, in Padgett, " R e c o n s t r u c t i o n Letters F r o m N o r t h Carolina," op. cit., p. 178. 33 Herschel V. J o h n s o n suggested t h a t t h e President issue a p r o c l a m a t i o n b e f o r e Congress convened to i n f o r m t h e p u b l i c on t h e test-oath issue. T h i s p r o p o s e d proclam a t i o n would stress the executive's belief in the legitimacy of t h e South's claims to r e p r e s e n t a t i o n if they sent delegations which were Constitutionally-qualified. J u s t w h a t Η . V. J o h n s o n m e a n t by "Constitutionally-qualified" is u n c l e a r ; events show t h a t h e did not consider t h e test oath a legitimate qualification f o r Congressmen. Η . V. J o h n s o n to Η . M. W a t t e r s o n , October 28, 1865, J o h n s o n MSS, Vol. L X X X I , L i b r a r y of Congress. O n e c o n t e m p o r a r y observer of t h e W a s h i n g t o n scene described J o h n s o n ' s position as follows: "Let S o u t h e r n Congressmen in w i t h o u t hesitation . . . w i t h o u t a n y t h i n g b u t d e f e n d i n g your Senate C h a m b e r a n d your H o u s e of R e p r e s e n -

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85-90 tatives from men who cannot take all the oaths of office." Rev. Henry W. Bellows. Public Life in Washington, An Address, May 7, 1866, To his Own Congregation (New York: James Miller, 1866), p. 19. See also Kendrick, Reconstruction Committee Journal, pp. 224-25. " Beale, Critical Year, pp. 16, 74-75; Hollister, Colfax, p. 271; Johnson to B. F. Perrv, November 27, 1865, Johnson MSS, Vol. L X X X I , Library of Congress; D. M. Fleming to G. Moody, April 6, 1866, ibid., Vol. XCII; Johnson to W. W. Holden, July 11, 1866, in McPherson, North Carolina Letters, pp. 230-31; Russ, Disfranchisement, pp. 31-32. " Georgia delayed her elections to await Congress' reception of the other Southern states' delegations. Texas' reconstruction was delayed, and she had no delegation in the capital when Congress convened. All the other Southern states had full delegations in Washington. See letter to Η. M. Watterson from I. S. Harris, December 29, 1865, Johnson MSS, Vol. L X X X I I I , Library of Congress. On public pronouncements against the test oath, see McPherson, North Carolina Letters, pp. 227-28; Hollister, Colfax, p. 272, and in an 1866 election pamphlet issued by the Republicans, Real Questions Before the Country (New York, 1866), p. 12. ** On Johnson's dependence on the Tennessee delegation as a test case, see Henry, Reconstruction, p. 134. Republicans acknowledged the past Unionism of such men as Maynard; see letter of Colfax to Rev. Dr. Eddy, January 25, 1866, in Hollister, Colfax, p. 283; Chadsey, Johnson and Congress, p. 67 n.; Union League, Is the South Ready for Restoration, p. 5. " U. S. Statutes at Large, X I I , 804. It was amended on February 21, 1867, to insure its applicability to the Southern states; ibid., X I V , 397. Lincoln had feared the use to which such a law might be put. He wrote to Rhode Island's Governor, William Sprague, October 31, 1863, " T h e r e is danger that the above act of Congress, intended to exclude improper applicants from seats, will be used to exclude proper ones." But Lincoln made no public protest against the law, fearing that " . . . publicity might increase the danger." In Koopman, Lincoln Letters, p. 34. T h e Nation, November 9, 1865, reported George Ticknor Curtis' Brooklyn speech of that week in which Curtis stressed the ministerial nature of the House Clerk's function in assembling the roll. On McPherson's Radical sympathies, see Beale, Critical Year, pp. 74-75. " Ibid.; Congressional Globe, 39th Cong., 1st Sess., pp. 3-10. " K e n d r i c k , Reconstruction Committee Journal, pp. 142-43. Welles, Diary, II, 392, records Democratic surprise. It is strange that they should have been taken so completely off guard. Radicals like Colfax had given ample warning of their policy; see W. H. Smith, "Schuyler Colfax and Reconstruction Policy" Indiana Magazine of History, X X X I X (December 1943), 324-25. Democrats had anticipated events, and published elaborate arguments against the test oath and Radical use of it; see Charles L. Mosby, Congressional Test Act Examined (Lynchburg, Va.: Virginia Power-Press Printing Office, 1865); Robert E. Collier, The Right Way for Restoring the Late Rebel States to the Federal Union (Petersburg, Va.: A. F. Crutchfield, 1865), passim. 40 Quoted in Hollister, Colfax, p. 286. " George L. Prentiss, " T h e Political Crisis," American Presbyterian and Theological Review, October 1866 (pamphlet reprint, n.p., n.d.), pp. 4-5. " Ibid. "Ibid.; see also Worth to D. H. Starbuck, September 29, 1866, Worth, Correspondence, II, 797. " G o r h a m , Stanton, II, 277; the Nation, November 9, 1865; Blaine, Twenty Years, II, 87-88; Grosvenor, " T h e Rights of the States and the Duties of Congress," op. cit., p. 5; Glenni W. Scofield, Reconstruction, Speech, April 28, 1866 (n.p., n.d ), p. 5. " O n February 22, 1866, Hayes wrote, "Many of our good men still hope that we can retain the President, but it is a very faint hope"; quoted in C. R. Williams, The Life of Rutherford Birchard Hayes (2 vols.; Boston: Houghton Mifflin Co., 1914), I, 279. Hereafter cited as Williams, Hayes. On Radical terms and Johnson's obduracy, see Welles, Diary, II, 415, 497.

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91-97 *· G. Clay-Smith to Johnson, January 20, 1866. Johnson MSS, Vol. L X X X I V , Library of Congress; Η. M. Watterson. January 26. 1866, ibid., Vol. L X X X V ; S. S. Leidy to McCulloch, May 2, 1866, McCulloch MSS. Vol. I, ibid., describes McCulloch's speeches on the representation question. On Seward's activities, see Rollo Ogden (ed.). Life and Letters of F.du in Lau rence Godkin (2 vols.; New York: Macmillan, 1907), I, 260-62; William H. Seward, Reconciliation, Speech, Auburn [ΛΛ y.], May 22, 1866 (Washington, 1866), pp. 18-20; Union League. Is the South Ready for Representation, p. 3. recounts Johnson's speeches. For public interest, see Henry Ward Beecher, Two Letters on the Reconstruction of the Southern States (New York, 1884), pp. 8. 13-14; Augustus Woodburv. The President and Congress, A Discourse at the Westminister Congregational Church, May 6, 1866 (Providence, R. I., 1866), pp. 5-6. " Beale. Critical Year, p. 81; Welles, Diary, II, 434; Richardson, Messages and Papers, VI, 403. " R a n d a l l , Civil War and Reconstruction, p. 742; S. P. Chase to Kate Chase Sprague, June 15, 1866, Chase MSS, Vol. XCVII, Library of Congress. •Nation, August 2, 1866; Congressional Globe, 39th Cong., 1st Sess., pp. 4162, 4164. M Ibid., pp. 4164-65, 4167, 4169. ™ Ibid., p. 4169. Can Congress add the qualification of loyalty to its memberselect, and interpret its power subjectively? Even in 1927, this was not an academic question, for in the 70th Congress Senator Frank L. Smith (III.) faced exclusion on excess-expenditure charges. Commentators on his case overwhelmingly agree that Congress may not do more than inquire into the legitimacy of the credentials which a Senator-elect carries. They agree, too, that the Civil War and Reconstruction exclusions were arbitrary deviations from right practice; Zechariah Chafee, Jr., Free Speech in The United States (Cambridge: Harvard University Press, 1942), pp. 26165. Cited hereafter as Chafee, Free Speech. A searching inquiry on this question is in O. R. McGuire, " T h e Right of the Senate to Exclude or Expel a Senator," Georgetown Law Journal, X V (March 1927). 382-401. McGuire states that if a Senator offends after he is elected, then the Senate niav consider expulsion, but this does not consider Patterson's case, for he was excluded for preelection offenses. In an editorial, "Refusal to seat a Senator-Elect," Law Notes, X X X (January 1927), 181, the writer concluded: "It takes a violent straining of the language of the Constitution to suggest a power to annex a qualification . . . which the Constitution does not prescribe." R. Momsen, " T h e Right of the Senate to Exclude a Senator-Elect," Notre Dame Lawyer, IV (October 1928), 3-28, agrees, and considers unwarranted exclusion as equivalent to a bill of attainder. He ignores, however, Patterson's case as a supporting argument. An unconvincing support of Congress' exclusion right is by S. C. Sykes, "Has the Senate . . . the Right to Refuse to Seat a Senator?" Mississippi Law Journal, I (October 1928), 211-32. "Nation, August 2, 1866, adds to the account in the Congressional Globe, 39th Cong., 1st Sess., p. 4214. "Ibid., pp. 4214-15. "Ibid., p. 4216. " Ibid., p. 4219. M Ibid., pp. 4267-73. " Ibid., pp. 4242-45. " Stern, Ward, p. 205. Patton, Tennessee, p. 225, errs in stating that Patterson took a modified oath. " H o n . Lyman Tremain's speech, September 5, 18G6, surveys widespread Republican support of the test oath, in Proceedings of the Republican Union State Convention, Syracuse [ΛΛ y.] (n.p., n.d.), p. 18. ""September 8, 1866, Schurz, Correspondence, I, 394-95. n Beale, Critical Year, p. 153. " Williams, Hayes, II, 284-89; Congressional Globe, 39th Cong., 1st Sess., p. 4273; Hollister, Colfax, p. 272; Georges Clemenceau, American Reconstruction, 1865-1870 (New York: Dial Press, 1928), p. 52. Cited as Clemenceau, American Reconstruction.

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NOTES

91-97 M U n i o n League, Is the South Ready for Restoration, passim. " T h e J o h n s o n Party," Atlantic Monthly, September, 1866, p p . 201-2; " C o n s t i t u t i o n of t h e J o h n s o n D e p a r t m e n t a l C l u b " (MSS), T r e a s u r y D e p a r t m e n t , Miscellaneous Records, R e c o r d G r o u p 56, N a t i o n a l Archives.

Chapter 9—-Bench, Bar, and Oath 1

Strong, Diary, IV, 66. J . Speed to J . Livingston, April 14, 1865, Attorney General's Office, Letterbook Ε, p. 210, Record G r o u p 60, N a t i o n a l Archives, surveys S o u t h e r n inquiries o n t h e o a t h a p p l i c a t i o n question. 3 A n d f r o m other places as well. In 1863 California's legislators prescribed a loyalty oath for its teachers; an oath closely resembling t h e federal civil servants' oath of August 1861. T h i s oath r e q u i r e m e n t achieved spotty success, for some school s u p e r i n t e n d e n t s chose not to enforce it at all. In fact, one e n t i r e district lost school facilities because t h e trustees w a n t e d no teachers w h o would ". . . take t h e o a t h of allegiance." See t h e California Teacher, I (August 1863), 50, a n d for t h e f o r m of t h e o a t h , see t h e Sacramento Union, May 9, 1863. California's was t h e first teachers' o a t h r e q u i r e m e n t of t h e Civil W a r period; it was repealed in 1872. But Nevada, in 1866, a n d West Virginia in 1867, prescribed loyalty tests f o r t h e i r teachers, a n d f o u n d California's o a t h a good model. But the newer oaths c o n f o r m e d even m o r e closely to t h e federal o a t h law of August 1861. A l t h o u g h t h e years h a v e seen these laws a m e n d e d , they are still t h e basis of Nevada's a n d West Virginia's loyalty-testing laws for teachers; N a t i o n a l E d u c a t i o n Association of t h e U n i t e d States, Teachers' Oaths— Statutory Requirements and Oath Forms (n.p., J a n u a r y 1945), p p . 4, 19 ( h e r e a f t e r cited as N a t i o n a l E d u c a t i o n Association, Teachers' Oaths). In 1920 New York's Lusk C o m m i t t e e citcd t h e Nevada law as a model for loyalty o a t h s f o r teachers; H . R . Linville, Oaths of Loyalty for Teachers (n.p.: American F e d e r a t i o n of T e a c h e r s , 1936), pp. 8, 30, a n d see too A. C. Cole, The Irrepressible Conflict, 1850-1865 (New York: Macmillan, 1943), p . 368. In this m a n n e r have some Civil W a r oaths r e t a i n e d vitality to t h e present. :

* T h e prescribed form of t h e oath f o r American citizens was as follows: " I d o solemnly swear t h a t I will s u p p o r t t h e C o n s t i t u t i o n of t h e U n i t e d States a n d t h e C o n s t i t u t i o n of t h e State of California; t h a t I will b e a r t r u e f a i t h a n d allegiance to t h e G o v e r n m e n t of the U n i t e d States, any o r d i n a n c e , resolution, or law of any State o r T e r r i t o r y , or of any Convention o r Legislature, t o t h e contrary n o t w i t h s t a n d i n g ; t h a t I have not, since . . . [April 25, 1863] knowingly aided, encouraged, countenanced, or assisted, n o r will I h e r e a f t e r in any m a n n e r c o u n t e n a n c e , or assist, t h e so-called C o n f e d e r a t e States, . . . in their rebellion against t h e l a w f u l G o v e r n m e n t of t h e U n i t e d States. . . ." For u n n a t u r a l i z e d aliens, t h e r e q u i r e d o a t h was; " I d o solemnly swear t h a t I will not at any time, or in a n y m a n n e r , aid, encourage, count e n a n c e or assist t h e so-called C o n f e d e r a t e States, . . . a n d t h a t I will not, while a resident of t h e U n i t e d States, knowingly commit o r e n c o u r a g e any act t e n d i n g to subvert t h e Constitution thereof. So h e l p me G o d . " California Statutes, 1863, p p . 556-57. 5 Ibid. • Cohen v. Wright, 22 California, 293 (1863). 'Ibid., pp. 294-301. 'Ibid., p p . 304-25, 324-31. 'Ibid., p. 311. Congress had not, in mid-1863 as yet a p p l i e d t h e ironclad test o a t h to attorneys practicing in t h e federal courts. "Ibid., p p . 320-24, 330-31. W i t h i n six m o n t h s , in ex parte Yale, t h e same court reaffirmed t h e Cohen decision in an almost identical case. Yale was a p p e a r i n g in a case as plaintiff's a t t o r n e y when he was challenged for disloyalty. H e r e f u s e d t h e proffered o a t h a n d a p p e a l e d for a j u d g m e n t on its constitutionality. Crocker strongly

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97-104 restated his belief in the adequacy of the legislature to enact such an oath law; 24 California, 242 (1864). 11 T h e oath form is most conveniently available in A. P. Sprague (ed.), Speeches, Arguments and Miscellaneous Papers of David Dudley Field (3 vols.; New York: D. Appleton Co., 1884), I, 89-91. Cited hereafter as Field, Arguments. Several writers hold the Missouri oath more severe than its federal counterpart, since the former inquired into the sympathies and desires of the subscriber; see Samuel S. Cox, Three Decades of Federal Legislation (Providence, R. I.: J. A. 8c R . A. Reid, 1885), p. 614, cited hereafter as Cox, Three Decades. On this see also L. T . Tasher, The Missouri Democrats and the Civil War (Chicago: private ed., 1936), p. 9. T h e ablest summary of Missouri politics and the role the oath was made to play is in Barclay, Liberal Republican Movement, pp. 15-44. u Missouri v. Alexander J. P. Gareschi, 36 Missouri, 256 (1865). u Ibid., pp. 257-62. Holmes referred to Colder v. Bull, 3 Dallas, 386 (1798) to substantiate his restriction of ex post facto conditions to criminal cases only. Similarly, h e found justification for his substantiation of t h e state's police power to require test oaths in Marshall's opinion in the Dartmouth College v. Woodward case, 4 Wheaton, 627 (1819). For contemporary legal editorial opinion on this case, see the American Law Register, New Series VI (November 1866), 291. 14 U. S. Supreme Court, Office, File Copies of Briefs, December Term, 186!, V (Arugment of Plaintiff, per se, Garesche v. Missouri), 1-2. T h i s brief was never published. Hereafter, it will be cited as Gareschi v. Missouri. "Ibid., pp. 6-8, 10. »Ibid., pp. 11-14. " Ibid., pp. 14-17. "Ibid., pp. 2-5; a conclusion which is largely justified by the findings of later research; see Barclay, Liberal Republican Movement, passim. " T h e two cases are ex parte Garland, 4 Wallace, 333 (1867), and Cummings v. Missouri, ibid., 277. For the final actions in Gareschi's appeal, see Gareschee v. Missouri, p. 22. K Ex parte Faulkner, 1 West Virginia, 269 (1866). " Ibid., pp. 269-72. 13 Ibid., pp. 272-78. "Ibid., pp. 281-87. " C . H. Ambler, A History of West Virginia (New York: Prentice-Hall, 1933), p p . 363-65, discusses the Radical reaction. In 1871, a Democratic legislature succeeded in abolishing all test oaths except those for teachers; ibid., p. 370, and National Education Association, Teachers' Oaths, p. 4. For the court's action in admitting Faulkner on the basis of pre-war Virginia oaths of f u t u r e fidelity, see ex parte Faulkner, 1 West Virginia, 269 at 307. For the reaction of a Florida lawyer, an ardent Democrat, see the entry for January 30, 1866, in the MSS diary of Ο. M. Dorman, V, 101-2, Library of Congress. Cited hereafter as Dorman, Diary. " Edward S. Corwin, The President, Office and Powers, 1787-1948 (3d ed.; New York: New York University Press, 1948), pp. 455-56, discusses t h e pardoning-power issue as the primary issue of reconstruction. Cited hereafter as Corwin, President. " Johnson to Attorney-General, April 21, 1865, Johnson MSS, Vol. LIX, Library of Congress. 17 Marshall's opinon is from United States v. Wilson, 7 Peters, 150 at 159 (1833), and is quoted in a circular letter the Attorney-General sent to C. A. Rose, July 22, 1865, Attorney-General's Office, Letterbook Ε, p. 117, Record G r o u p 60, National Archives. "Attorney-General to T . S. Lathrop, J u n e 5, 1865, ibid., Letterbook D, p. 365; same to L. H. Chandler, July 29, 1865, ibid., Letterbook Ε, pp. 137-38. " Same to S. B. Maxcy, January 17, 1866, ibid., p. 372; C. W. Ramsdell, Reconstruction in Texas (New York: Columbia University Press, 1910), pp. 60-61. 30 See Scction 13 of the Confiscation Act, U. S. Statutes at Large, XII, 592. On the general problem of pardons and amnesties, I have used the excellent material in Russ, Disfranchisement, pp. 117-24, and J. T . Dorris, Pardon and Amnesty During

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97-104 the Civil War and Reconstruction (Urbana: University of Illinois Press, 1929), passim. n E. Pennington, Jr., to Sumner, December [?], 1864, Sumner MSS, Vol. LXXIV, Item 57, Houghton Library, Harvard University. Sumner, in 1863, had felt that "once a traitor, always a traitor, unless changed by pardon or amnesty," in a speech in the Senate, March 6, 1863, concerning the proposed extension of the ironclad test oath to Senators; in Sumner, Works, X, 276. Moderate opinion might perhaps best find expression in the following address: " T h e r e is much disloyal clamor still in the land. . . . It is also probable that many persons, now that the cause they espoused is lost, accepted in good faith the clemency of the government. . . . And it belongs to the President, by his pardon, to restore, in those disorganized communities, any one qualified, now disqualified by late treason, whom he may, in his sound discretion, consider fit to be restored to their former rights." R. J. Breckenridge, The Great Deliverance, Phi Beta Kappa Address, Union College, Schenectady, New York, July 25, 1865 (Philadelphia: James S. Claxton, 1865), pp. 13-17. Less willing to trust the President's power to pardon was a Buffalo minister who stated, on July 4, 1865: " W e covet no man's blood, but there is a limit to mercy. . . . T h e President has pardoned many, and is pardoning more, of their late leaders and men of influence, . . . We rejoice, because the pardons are founded upon proofs of penitence and promises of reparation. Would it be just to a still excited Southern populace to permit the demagogues who misled it to return to it before its re-awakening loyalty is assuredly confirmed? As to the thrice-perjured traitors—men who filled places on t h e bench of justice, in the halls of Congress, . . . shall we permit these false priests to minister again at the altars which they desecrated?" G. W. Clinton, Celebration of the Fourth of July and the Return of Peace (Buffalo: Joseph Warren, 1865), p. 18. " J . Speed to J. Livingston, April 14, 1865, Attorney-General's Office, Letterbook E, p. 210, Record G r o u p 60, National Archives. ™ "I don't know who would take that oath!" recorded a Southern attorney in his diary, when at t h e first opportunity after the war he sought to commence practice in the newly organized federal court in Florida; May 8, 1865, Dorman, Diary, III, 308-9. Dorman hated all test oaths, but the ironclad oath was his special abomination. " R i c h a r d Busteed to Johnson, August 9, 1865, Johnson MSS, Vol. LXXIII, Library of Congress. " O n Alabama, see Fleming, Alabama, pp. 371-2; New York Times, July 2, 1866; on Florida, Dorman's Diary, V, 138-39 (entry for March 31, 1866), describes t h e refusal of Florida's lawyers to take the test oath, and the results on the Florida federal courts. Mississippi's federal District Judge complained of "the hopeless situation created by the test oath," R. A. Hill to Chase, November 14, 1866, Chase MSS, Vol. XCVII, Library of Congress. H e permitted those lawyers who practiced in that court before the war to resume their practice if they had an executive pardon. " Federal Cases, No. 1118; Robinson, Justice in Grey, p. 596. Horace Maynard defended the test oath against the plaintiff's counsel Thomas A. R. Nelson. " Q u o t e d in 35 Georgia, Appendix, 292 (1865), Federal Cases, No. 1118. T h i s case is most unsatisfactorily reported, and nowhere is there a complete record of the opinion. In Robinson, Justice in Grey, p. 597 and n., there is mention of a pamphlet reprint of Trigg's statement, but this was unavailable to this writer. " W . G. Brownlow to Johnson, J u n e 8, 1865, Johnson MSS, Vol. LXVI, Library of Congress. " Ε . M. Coulter, William G. Brownlow, Fighting Parson of the Southern Highlands (Chapel Hill: University of North Carolina Press, 1937), pp. 274-75. " W. G. Brownlow to Johnson, J u n e 8, 1865, Johnson MSS, Vol. LXVI, Library of Congress. Florida's District Judge Frazer also pronounced the test oath for attorneys unconstitutional, but his opinion is unreported; see W. A. Russ, Jr., " T h e Lawyers Test Oath During Reconstruction," Mississippi Law Journal, X (December 1937), 158. Cited as Russ, Lawyers Test Oath. u T h e difficulties Busteed was experiencing because of the test oath are described in a letter from him to Johnson, August 9, 1865, Johnson MSS, Vol. LXXIII, Library

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104-110 of Congress. It seems p r o b a b l e t h a t they p l a n n e d t h e case of In re Shorter. Certainly Busteed was very p r o u d of his part in securing J o h n s o n ' s p a r d o n f o r Shorter a n d o t h e r A l a b a m a n s w h o figured in the case; see his letter to G r a n t , D e c e m b e r 21, 1869, D e p a r t m e n t of Justice, A p p o i n t m e n t Papers, Alabama, Record G r o u p 60, N a t i o n a l Archives. ° 35 Georgia, A p p e n d i x , 292 (1865); Federal Cases, No. 12,811. " Ibid., w h e r e Busteed quotes f r o m T a n e y ' s o p i n i o n in ex parte Secombe, 19 H o w a r d , 13. "Federal Cases, No. 12,811. " Ibid. Busteed became a gTcat favorite a m o n g A l a b a m a lawyers a f t e r this decision. I n 1869, a b a n q u e t was held in his h o n o r by t h e b a r association of A l a b a m a . T h e eulogistic speeches m a d e by t h e assembled attorneys (including Shorter) m a k e r a t h e r repellent reading. Busteed t h o u g h t t h e occasion w a r r a n t e d p u b l i c i t y ; h e sent a copy to G r a n t a n d to W a s h i n g t o n newspapers. See the letter a n d p a m p h l e t copy of t h e b a n q u e t proceedings in D e p a r t m e n t of Justice, A p p o i n t m e n t Papers, Alabama, Record G r o u p 60, N a t i o n a l Archives. Busteed was no o n e to d i m i n i s h t h e sanctity of a n o a t h . H e t h r e a t e n e d f u l l penalties for anyone w h o broke his amnesty o a t h ; Nation, J u n e 21, 1866. " E n t r y f o r December 30, 1865, D o r m a n , Diary, IV, 371. Shorter, it s h o u l d b e noted, h a d distinguished counsel, indicating the i m p o r t a n c e of t h e case. H e was represented by J. A. Campbell, C o n f e d e r a t e Assistant W a r Secretary, R . H . Smith, d e p u t y t o t h e Provisional Congress, a n d W . G. Jones. J u d g e , C o n f e d e r a t e District C o u r t f o r A l a b a m a ; see R o b i n s o n , Justice in Grey, p. 597 n. " 3 5 Georgia, A p p e n d i x , 285 (1866); Federal Cases, No. 8,126. T h e description of Fitch is in I. W . Avery, The History of Georgia from 1850-1881 (New York: Brown & Derby, 1881), p. 360. Cited hereafter as Avery, Georgia. Strangely e n o u g h , it seems t h a t Erskine himself should not have been qualified because of t h e test oath. H e h a d pleaded cases for t h e C o n f e d e r a t e government; see Robinson, Justice in Grey, pp. 595-96 n. A l e x a n d e r Stephens noted t h a t "F.rskine . . . will p r o b a b l y be the District J u d g e . . .; a good a p p o i n t m e n t . " See entry for J u n e 19, 1865, in Stephens, Recollections, p. 239. " 35 Georgia, A p p e n d i x , 285 at 290-92. " Ibid., pp. 294-95. " Ibid., p. 304. "Ibid., p p . 306-10. In December 1867, Erskine refused to p e r m i t R o b e r t T o o m b s to practice in his court. T o o m b s caustically retorted in p u b l i c p r i n t : "Sir, twenty years ago, when you were d r i n k i n g b u t t e r milk out of a swill-tub in t h e bogs, I was a p r a c t i t i o n e r before the court which you disgrace . . . a n d yet, sir, you who a r e p e r j u r e d in accepting the office you now hold, p r e s u m e to r e f u s e g e n t l e m e n t h e right to practice before you." Printed in t h e Charleston Mercury a n d S'ew York Tribune as q u o t e d in Russ, Lawyer's Test Oath, p. 158 n. " S e e entry for March 31, 1866, D o r m a n , Diary, V, 138-39. For Mississippi, see t h e letter f r o m Hill to Chase, November 14, 1866, Chase MSS, Vol. X C V I I , Library of Congress. Erskine actually delayed t h e Law decision for a time, h o p i n g for a Sup r e m e C o u r t p r o n o u n c e m e n t ; sec American Law Register, N. S., VI (March 1867), 410.

Chapter 10—The Supreme Court Decides ' I n 1867 Arkansas elected G a r l a n d to t h e U. S. Senate, but t h e R e p u b l i c a n d o m i n a t e d Congress refused h i m admission. H e became Arkansas' G o v e r n o r in 1874, a n d U. S. Senator in 1877 when he did get his seat. Cleveland a p p o i n t e d h i m Attorney-General in 1885. Dictionary of American Biography. ' U. S. Statutes at Large, X I I I , 424. T h e S u p r e m e C o u r t made t h e test o a t h f o r its attorneys a r u l e of the court in March 1865, not in 1863, which is t h e d a t e given

195

NOTES

104-110 bv Louis Boudin, Government by Judiciary (2 vols.; New York: W i l l i a m G o d w i n , 1932), II, 69. I U. S. S u p r e m e C o u r t . Library, Petition of A. H. Garland, File Copies of Briefs, December T e r m , 1866, I, 5-10. ' T h e reason for t h e delay was simple e n o u g h — t h e Court could not reach a decision. As late as J u n e 30, 1866, the S u p r e m e Court jurists could agree only to postp o n e t h e case u n t i l t h e next session. Reverdy J o h n s o n spread r u m o r s of a decision adverse to t h e oath law. Stephen J. Field expressed himself as ". . . amazed at t h e strange character of his statements a n d t h e singular indelicacy of giving t h e m publicity—even if they are in fact t r u e . . . t h e conduct of [Reverdy] J o h n s o n is i n d e f e n sible. More, it merits some rebuke. How foolish h e would a p p e a r if the decision of t h e C o u r t should be different f r o m what h e supposes it will be. I suppose h e got what h e knows on t h e subject from J u d g e Nelson, with w h o m h e was very intim a t e . " Field t h o u g h t J o h n s o n might have been confusing G a r l a n d ' s with t h e Milligan case. Field to Chase, J u n e 30, 1866, Chase MSS, Vol. XCVII, Library of Congress. Orville H. B r o w n i n g t h o u g h t t h e C o u r t ready to give a decision in March 1866, b u t t h a t Justice Miller's urgings t h a t it delay u n t i l 1867 were obeyed; see Ο. H . Browning, Diary, T . C. Pease a n d J. G. R a n d a l l (eds.), (2 vols.; Springfield: T r u s t e e s of t h e Illinois State Historical Library, 1923, 1933), II, 53, 67, 69 n. •Nation, J a n u a r y 21, 1867, describes t h e feud between t h e Times and Tribune. O n Chase's denial, see Charles W a r r e n , The Supreme Court in United States History (2 vols., revised ed.; Boston: Little, Brown, a n d C o m p a n y , 1932), II, 450 a n d n. • J o h n s o n to Η . M. W a t t e r s o n , J a n u a r y 9, 1866, J o h n s o n MSS, Vol. L X X I I ; J. Speed to J. Livingston, April 14, 1866, Attorney-General's Office, Letterbook Ε, p . 210, Record G r o u p 60, N a t i o n a l Archives. ' A s s i s t a n t Attorney-General to S. J. Baldwin, December 4, 1866, ibid., Letterbook F, p. 245. * Described in a letter f r o m Mississippi's federal District J u d g e R . A. Hill to Chase, N o v e m b e r 14, 1866, Chase MSS, Vol. XCVII, Library of Congress; entry f o r December 30, D o r m a n , Diary, V, 369, a n d for March 30, 1866, ibid., V, 138-39. " A l t h o u g h t h e House approved the resolution by a bare majority (82-77) it seemed obvious to t h e Nation, J a n u a r y 25, 1866, t h a t Stevens' resolution could never pass; Congressional Globe, 39th Cong., 1st Sess., 234. 10 J o h n s o n was Maryland's Senator a n d counsel for Mrs. Suratt. H e had particip a t e d in t h e Dred Scott case, a n d was Minister to E n g l a n d for Andrew J o h n s o n . C a r p e n t e r subsequently pleaded for Ex parte McCardle, 7 Wallace, 506 (1869). H e d e f e n d e d B e l k n a p in t h e latter's i m p e a c h m e n t of 1876, a n d T i l d e n in t h e 1876 disp u t e d election. In 1879 h e became Wisconsin's Senator. Dictionary of American Biography. Details on t h e case are in U. S. S u p r e m e C o u r t , Library, Argument of A. H. Garland, File Copies of Briefs, December T e r m , 1866, I, 5. "Ibid., p p . 8-10. II Ibid. u Ibid. "Ibid., pp. 11-23. T h e i r a r g u m e n t received p u b l i c a t i o n in t h e American Law Register, XIV (May 1866), 448, in a review of a p a m p h l e t r e p r i n t . u U. S. S u p r e m e C o u r t , Library, Arguments of U. S. Attorney-General, Ex parte Garland, File Copies of Briefs, December T e r m , 1866, I. For Marshall's o p i n i o n , see 4 W h e a t o n , 416, but see 9 W h e a t o n , 531, w h e r e Marshall specifies attorneys as court officers. " S t a n b e r r y received §1,500 for his services; see Attorney-General's Office, Letterbook E, Record G r o u p 60, N a t i o n a l Archives. 11 Ex parte Garland, 4 Wallace, 333, at p p . 352-58. " Ibid., p p . 358-64. " T h e m a j o r i t y jurists were Clifford, Grier, Nelson, W a y n e , a n d Field. T h e first f o u r were all p r e w a r appointees, ibid., p p . 374-77. M Ibid., p p . 377-78. 11 Ibid., p p . 379-81. T h e C o u r t immediately rescinded t h e o a t h r u l e f o r its attorneys; see R u l e I, ibid., p. vii. T h e identical petition of R. H. M a r r was i n c l u d e d

196

E R A OF T H E

OATH

110-116 in this decision; see U. S. Supreme Court, Office, Arguments of R. H. Mart, In re Garland et al., File Copies of Briefs, December T e r m , 1866, I. • 4 Wallace, 277 (1867). " Nation, September 14, 1865, reported that only the Episcopalian Church in Missouri supported the oath law, but Barclay, Liberal Republican Movement, p. 54, indicates that this is incorrect. T h e Baptist position is covered by Galusha Anderson, " T h e Test Oath in Missouri," Baptist Quarterly, I (July 1867), 281-98; the Catholic attitude is in Rev. B. J. Blied, Catholics and the Civil War (Milwaukee: Private edition, 1945), p. 37. " Missouri's Radicals believed that the clergy had been among the most disloyal elements in the state, and were determined that they should take the oath; see S. B. Laughlin, "Missouri Politics During the Civil War," Missouri Historical Review, XXIV (October 1929), 99; Nation, October 5, 1865; Barclay, Liberal Republican Movement, ch. III. "Ibid., pp. 60-61; entries for May 29, July 19, and December 17, 1865, Bates, Diary, pp. 484-85, 494, 524; entries for October 7 and 23, 1865, in Dorman, Diary, IV, 196-97, 220. " Missouri v. Cummings, 36 Missouri, 164 (1865). " S m i t h , Blair Family, II, 351-52; Field, Arguments, I, 92. "Ibid. See Justice Field's statement in Dent v. West Virginia, 129 U. S. 114 (1888) at p. 126. " Field, Arguments, I, 92-99. " Ibid., pp. 100, 105-7. Field simultaneously presented a petition for Gareschi, but t h e Court did not pronounce upon it. 11 U. S. Supreme Court, Office, Brief of Montgomery Blair, for Plaintiff in Error, Cummings v. Missouri, File Copies of Briefs, December T e r m , 1866, V, 15-16. " Barclay, Liberal Republican Movement, p. 71, describes Strong as an ardent supporter of the oath in Missouri. " U. S. Supreme Court, Office, Brief of George P. Strong, Cummings v. Missouri, File Copies of Briefs, December T e r m , 1866, V, 1-3. u 4 Wallace, pp. 293-94. " Ibid., pp. 307-16. *" Barclay, Liberal Republican Movement, pp. 69-72, 85 n.; Field to Chase, J u n e 30, 1866, Chase MSS, Vol. XCVII, Library of Congress. " 4 Wallace, pp. 318-22, 326-32. "Ibid., p. 332. T h e Cummings decision invalidated t h e Missouri oath law for ministers only, not, as Field, Arguments, I, 117, states, for lawyers also. For t h e Court did not consider the Gareschi brief. In fact, a subsequent Missouri case. In re Murphy and Glover, 41 Missouri, 339 (1867) reversed t h e Gareschi decision, b u t t h e Cummings case did not so do. Similarly, Boudin, op. cit., II, 69 n., states that t h e Cummings decision "applied to the entire list of professions involved." It did not, as the Garland decision applied to the Supreme Court's attorneys only. " Nation, January 17, 1867; Stern, Ward, p. 220; Mary L. Hinsdale, Garßeld-Hinsdale Letters (Ann Arbor: University of Michigan Press, 1949), p. 88. Hereafter cited as Hinsdale, Garfield Letters; Strong, Diary, IV, 121. 40 4 Wallace, pp. 384-85. «Ibid., pp. 385-86. β Ibid., pp. 388-90. " Ibid., pp. 390-91, citing Colder v. Bull, 3 Dallas, 386 (1798). " 4 Wallace, pp. 395-9. " Hinsdale, Garfield Letters, p. 88; Strong, Diary, IV, 121. *· Barclay, Liberal Republican Movement, p. 116; Dorman, Diary, V, 411-13; Davis, Florida, pp. 444-45. " Carl B. Swisher, Stephen J. Field, Craftsman of the Law (Washington: Brookings Institution, 1930), p. 152; Alexander A. Lawrence, James Moore Wayne, Southern Unionist (Chapel Hill: University of North Carolina Press, 1943), pp. 209-11. α Boudin, op. cit., II, 75; Warren, op. cit., II, 451. β Appleton's Annual Cyclopaedia, 1867, p. 752; Congressional Globe, 39th Cong.,

197

NOTES

110-116 2nd Sess., p . 649; Swisher, op. cit., p . 153. On t h e 5-4 issue, see T h o m a s J . N o r t o n , " W h a t D a m a g e H a v e F i v e - F o u r Decisions Done?" American Bar Association Journal, I X ( N o v e m b e r 1923), 721-27; R o b e r t E. C u s h m a n , " C o n s t i t u t i o n a l Decisions by a B a r e M a j o r i t y of t h e C o u r t , " Michigan Law Review, X I X ( J u n e 1921), 771-803. " Congressional Globe, 39th Cong., 2nd Sess., p p . 251, 502, 647, 1341; ibid., 40th Cong., 2 n d Sess., p. 478. " Q u o t e d in W a r r e n , op. cit., II, 454. ° Congressional Globe, 39th Cong., 2 n d Sess., p p . 646-49, 685; Nation, J a n u a r y 24, 31, F e b r u a r y 28, 1867, discusses t h e affair concisely. For a vivid description of w h a t Boutwell's proposal m e a n t to a S o u t h e r n lawyer, see Padgett, " R e c o n s t r u c t i o n Letters f r o m N o r t h Carolina," op. cit., p p . 189-90. " Q u o t e d in R a n d a l l , Civil War and Reconstruction, p. 805. M Blaine, Twenty Years, II, 209-11. " B o u d i n , op. cit., II, 73; Ο. K. Fraenkel, Our Civil Liberties (New York: Viking Press, 1944), p . 182; C. G. Haines, The American Doctrine of Judicial Supremacy (New York: Macmillan, 1911), p p . 280-82; Corwin, President, p. 202. See also Oliver P. Field, " E x Post Facto in t h e C o n s t i t u t i o n , " Michigan Law Review, X X ( J a n u a r y 1922), 315-31; Breck P. McCallister, "Ex Post Facto Laws in t h e S u p r e m e C o u r t of t h e U n i t e d States," California Law Review, XV (May 1927), 269-88. M American Law Register, n.s. VI (May 1867), 409, a n d see ibid., 394-411; The Western Jurist, April 1867, 73-82; T h o m a s M. Cooley, A Treatise on the Constitutional Limitations Which Rests Upon the Legislative Power of the States of the American Union (6th ed.; Boston: Little, Brown 8c Co., 1890), p p . 317-18. O n Chase, see J . S. Benson, The Judicial Record of the Late Chief Justice Chase (New York: Baker, Voorhis & Co., 1882), p p . 21-22. " Η . M. Field, The Life of David Dudley Field (New York: Charles Scribner's Sons, 1898), p p . 196-97: Barclay, Liberal Republican Movement, p. 116. B o u d i n , op. cit., II, 69 n „ a n d Fraenkel, op. cit., p. 182, make similar errors. T h e q u o t a t i o n is f r o m M. F. Pleasants (Chief Clerk) to D. F. Baldwin, February 26, 1867, AttorneyGeneral's Office, Letterbook F, p. 326, Record G r o u p 60, N a t i o n a l Archives. — U n i t e d States, L i b r a r y of Congress Reference Service, Law Library, Provisions of Federal Law Held Unconstitutional by the Supreme Court of the United States, W i l f r e d C. Gilbert, c o m p . ( W a s h i n g t o n , 1935), p p . 23-25. Cited h e r e a f t e r as G i l b e r t , Unconstitutional Federal Law. " T h u s , ex-rebel J o h n A. C a m p b e l l , once S u p r e m e C o u r t justice, was a d m i t t e d to practice; C o n n o r , Campbell, p p . 207-8. "American Law Register, XV (March 1867), 292-98, gives t h e facts a n d q u o t a t i o n s . M a g r u d e r , ex-colonel in t h e rebel forces, boasted even in 1867 that h e owed p a r a m o u n t fidelity to Virginia; see Russ, Lawyers Test Oath, p. 161 n. C a r t t e r was a n a d m i t t e d Radical; h e was t h e jurist w h o issued t h e writ for General T h o m a s ' arrest in 1868; see William C a r t t e r Weaver, "David Kellogg Cartter," Historian, I I I (Spring 1941), 177; Welles, Diary, I I I , p p . 285-86. On C a n t e r ' s a p p l i c a t i o n of t h e o a t h r u l e in 1863, see Congressional Globe, 38th Cong., 2d Sess., p. 91. " R u s s , Lawyers Test Oath, p p . 164-67; R . A. Hill to Chase, J u l y 9, 1867, Chase MSS, Vol. CI, Library of Congress. Gilbert, Unconstitutional Federal Law, p p . 23-25, states t h a t in t h e 1873 revision of t h e U. S. Statutes, Congress tacitly d r o p p e d t h e attorneys' o a t h f r o m t h e books. "In re Murphy and Glover, 41 Missouri, 339 (1867); Russ, Lawyers Test Oath, p. 160 n „ described how Missouri jurists w h o a d o p t e d t h e Garland a n d Cummings p r e c e d e n t s in advance of t h e Murphy case were impeached a n d removed f r o m officc. "Ex parte Hunter, 2 W e s t Virginia, 122 (1867); Ex parte Quarrier and Fitzhugh, 4 ibid., 210 (1870). T h e state repealed t h e o a t h law in 1870, a f t e r Democrats g a i n e d control; Russ, Lawyers Test Oath, p. 157. ** Beirne v. Brown, 4 West Virginia, 72 (1870); Peerce v. Carskadon, ibid., 234 (1870). In b o t h cases t h e c o u r t stressed w a r t i m e need to justify t h e law. " Pierce et. al. v. Carskadon, 16 Wallace 234 (1873). See Justice Field's s t a t e m e n t in Dent v. West Virginia, 129 U. S., 114 (1888) at p . 126.

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198

116-124 "Kyle v. Jenkins, 6 West V irginia, 371 (1873); Ross v. Jenkins, 7 ibid., 553 (1874); Lynch v. Hoffman, ibid., 553, 578 (1874). "Davis v. Pierse, 7 Minnesota, 13 (1862). • Lively v. Ballard, 2 West Virginia, 496 (1868). " State v. Klinger, 46 Missouri, 224 (1870); Κlinger v. Missouri, 13 Wallace, 257 (1872). ™ United States v. Foster Blodgett, 35 Georgia, Appendix, 336 (1867); United States v. Hammond, Federal Cases, No. 15294 (1875); United States v. Butler, ibid., No. 14700 (1877); Atwood v. Weems, 99 U. S. 183 (1878). " Rison et. al. v. Farr, 24 Arkansas, 161 (1865). For political b a c k g r o u n d , see J. M. H a r r e l l , The Brooks and Baxter War: A History of the Reconstruction Period in Arkansas (St. Louis, 1893), p p . 27-30; Robinson, Justice in Grey, p. 113. "Davis v. McKeeby, 5 Nevada, 369 (1870). " Green v. Shurnway, 39 New York, 418 (1868); W. W. T h o r n t o n , "Ex Post Facto a n d Bills of A t t a i n d e r , " Criminal Law Magazine, V (May 1884), 357, credits t h e minority with t h e better reasoning on these issues. "Anderson v. Baker, 23 Maryland, 531 (1865), reaffirming Hardest)ι v. Taft, ibid., 512 (1865). " B a r c l a y , Liberal Republican Movement, p . 65; Welles, Diary, I I I , 566; Nation, J u n e , 28, 1866. " Blair v. Ridgely, 41 Missouri, 63 (1866), reaffirmed in State v. Neal, 42 ibid., 119 (1868). " B l a i r to Chase, J a n u a r y 1, 1868, U. S. S u p r e m e Court, Records, File No. 4980. T h i s file contains m o r e t h a n a dozen letters urging a rapid hearing. " A . R . Smith to J o h n s o n , March 6, 1866, J o h n s o n MSS, Vol. XC, Library of Congress; J. R. Asper to Chase, J u n e 18, 1866, Chase MSS, Vol. XCVII, ibid.; Stephen J. Field to Chase, J u n e 30, 1866, ibid. For Democratic and R e p u b l i c a n p r o p a g a n d a on Blair's case, see Condensed Histon· of the War (n.p., 1868), p. 11. ™ T h e case is not reported in t h e S u p r e m e Court's Reports. I have followed the accounts in W a r r e n , op. cit., II p. 510 n.; Smith, Blair family, III, p. 232 a n d n.; Swisher, op. cit., p. 154 n. 80 Randolph v. Good, 3 West Virginia, 55 (1869). " Tennessee v. Staten, 6 Tennessee, 248 (1869). "State ex rel. Wingate v. Woodson, 41 Missouri, 227 (1867). M State ex rel. Pittman v. Adams, 44, ibid., 570 (1869); State v. Heighland, 41, ibid., 388 (1867). " Ex parte Stratton, 1 West Virginia, 305 (1866). K Dent v. West Virginia, 129 U. S., 114 (1888). T h e Court was u n a n i m o u s . "Hawker v. New York, 170, ibid., 189 (1897). Harlan, McKenna, a n d I'eckham dissented, a n d h e l d t h e law a bill of a t t a i n d e r ; see ibid., pp. 204-5. " Rietz v. Michigan, 188, ibid., 505 (1903). "In re Summers, 325, ibid., 561 (1944), at p. 576. In Ex parte Wall, 107, ibid., 265 (1882), t h e C o u r t again affirmed t h e o p i n i o n in t h e Garland case h o l d i n g attorneys to be officers of t h e courts in which they practice. " 16 Wallace, 147 (1872). T h e other eases were Padelford v. the United States, 9, ibid., 531 (1869); United States v. Klein, 13, ibid., 128 (1871); Armstrong v. the United States, 1 Otto, 474 (1875); Knote v. the United States, 5, ibid., 149 (1877). Of p a r t i c u l a r interest are Pargoud v. the United States, 13 Wallace, 156 (1869), and Mills v. the United States, 6 C o u r t of Claims, 253 (1870), dealing with Congressional rejection of Presidential p a r d o n s in removing the consequences of the p a r d o n e d act. See also t h e Nation, J a n u a r y 26, 1871, for a layman's survey of the issue of p a r d o n as opposed to legislative decree. Gilbert, Unconstitutional Federal Law, p p . 30-31, discusses the legislative effects of these decisions. " United States v. Lovett, 328 U.S., 303 (1945), at p p . 315-16. For Justice Frankf u r t e r ' s c o n c u r r i n g o p i n i o n , see ibid., p. 327. " Bailey v. Richardson et al. (U. S. C o u r t of Appeals, District of C o l u m b i a Circuit), 182 Federal R e p o r t e r , 2d Series, 46 (1949), at p. 60. M In re Yamashita, 327 U.S., 1 (1945), at p. 45.

199

NOTES

116-124 "American Communications (1949), at pp. 409, 414, 448-49. * Barnette v. West Virginia Fraenkel, op. cit., p. 60. " Garner et al., v. Board of (1950), at pp. 722-23, 735. *· H. S. Commager, Majority versity Press, 1943), p. 49.

Association, State Public

Board Works

C.I.O., et al., v. Douds, of Education,

319 U. S„ 624 (1943);

of Los Angeles

Rule and Minority

Rights

339 U.S., 382

et al., 341 U. S„ 716

(New York: Oxford Uni-

Chapter 11—First Breach 'William Stewart (Chief Clerk) to James Christian, J u n e 20, 1865, AttorneyGeneral's Office, Letterbook Ε, p. 65, Record Group 60, National Archives. In this letter Stewart complains of the large number of similar cases among the department's Northern employees. 3 These conditions are described in a letter from the Assistant Secretary of the Treasury, I. F. Hartley, to A. Sargent, January 18, 1866, Secretary of the Treasury, Department Order Book, March 4, 1861 to March 29, 1869, p. 227, Record Group 56, National Archives. T h e courts have upheld the executive in refusing to pay employees until they filed the ironclad oath; see the case of M. Otterbourg v. U. S., in Treasury Department, Letters from Executive Officers, A. B. 1868, Vol. Ill, Item 131, Record Group 56, National Archives; Marcus Otterbourg v. U. S., 5 Court of Claims (1869) ; United States v. Morton, 112, U. S., I (1884) ; United States v. Flanders, ibid., 88; Attorney-General, Official Opinions, X I X , 219-21. ' McCulloch to A. Sargent, October 18, 1866, Secretary of the Treasury, Letterbook, Treasury Department, October 1, 18 to July 4, 18G7, pp. 43-44, Rctord Group 56, National Archives. 4 Ibid. 'Quoted in a letter from Loren Kent to McCulloch, December 27, 1866, Secretary of the Treasury, Letters from Executive Officers, AB Series, 1867, Vol. I l l , Item 3, ibid. • Ibid. ' H. A. Risby to McCulloch, September 14, 1866, Treasury Department, Letters from Executive Officers, AB Series, 1866, Item 115, ibid. " E. Jordan to McCulloch, December 21, 1866, ibid., Item 263. 'Seward to McCulloch, March 13, 1865, ibid., AB Series, 1865, Vol. I, Item 80. 10 Blair to S. L. M. Barlow, September 13, 1865, Barlow MSS, Columbia University. 11 A. H. Stevens to his brother, April 8, 1866, in Stephens, Recollections, pp. 545-46; Welles, Diary, II, 484. An amazingly accurate forecast of the consequences of Radical victory in the 1866 election is in I. A. Wright to Johnson, May 27, 1866, Johnson MSS, Vol. XCIV, Library of Congress. " F r o m " T h e Autobiography of Herschel V. Johnson," American Historical Review, X X X May (1925), 335; J. Kirkwood to Chase, December 4, 1866, Chase MSS, Vol. XCVII, Library of Congress, discusses the Arkansas situation. For Louisiana, see C. Gayarre, Address to the Voters of the First Congressional District (n.p., 1866), p. 4. a Reverdy Johnson warned the Senate that the Garland decision contradicted the proscriptive clauses of the Fourteenth Amendment, then under discussion; Blaine, Twenty Years, II, 209-10. However, this writer must disagree with Chief Justice Vanderbilt, of New Jersey's Supreme Court. In Imbrie v. Marsh, 18 American Law reports, 2d Series (1950), 241, at p. 256, he states that the third section of the Fourteenth Amendment was included because of the Garland and Cummings decisions. Those cases were not decided until January, 1867, six months after the Amendment went to the states for ratification. 11 For instance, Jonathan Worth wrote to B. S. Hedrick, July 4, 1866, Worth, Correspondence, II, 666-67, that the Amendment ". . . admits to office the most violent

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124-135 Secessionist . . . provided he had held no position prior to the war whereby he had taken the oath to support the Constitution." Worth should have known better. " Russ, Disfranchisement, pp. 35-36. M U. S. Statutes at Large, X I V , 428-29. " Quoted in Russ, Disfranchisement, pp. 54, 62-63 " Congressional Globe, 40th Cong., 1st Sess., Appendix, pp. 39-40. " Randall, Civil War and Reconstruction, pp. 754-56; Russ, Disfranchisement, pp. 58-59, 62; Dunning, Essays, pp. J79-83. " May 24, 1867, U. S. Cong., Senate, Message of the President of the United States, Senate Executive Document 14, 40th Cong., 1st Sess., pp. 262-68. " P. H. Sheridan, Personal Memoirs (2 vols.; New York: Webster, 1888), 269-70; Russ, Disfranchisement, p. 66 n. " Quoted in ibid., p. 78, and see pp. 65-78. ™ Congressional Globe, 40th Cong., 1st Sess., Appendix, p. 43. " Russ, Disfranchisement, pp. 85-87. "Ibid., pp. 93-96. In many areas, even Negroes and "carpetbaggers" proved insufficient to fill offices vacated by the test-oath requirement. Russ was unable to estimate the total number of whites disfranchised by the reconstruction legislation, but he believes they effectively diminished white majorities; ibid., p. 112. See also Worth, Correspondence, II, 944. " Congressional Globe, 40th Cong., 1st Sess., pp. 171-80; 200. " Steiner, Reverdy Johnson, p. 204. "Ibid., p. 205; January 2, 22, 1867, Congressional Globe, 40th Cong., 2d Sess., pp. 320-23. "Ibid., pp. 327, 1145. "Ibid., pp. 632-35, 653-62, 678-86, 1144-56, 1165-77, 1205-10, 1232-42; Steiner, Reverdy Johnson, pp. 204-14. " F e b r u a r y 13, 1868, Congressional Globe, 40th Cong., 2d Sess., p. 1145. " J a n u a r y 9, 1868. See also Freeman, Lee, IV, 360; H. Wilson, History of the Reconstruction Measures of the Thirty-ninth and Fortieth Congresses, 1865-1868 (Hartford: Hartford Publishing Co., 1868), p. 94. "Congressional Globe, 40th Cong., 2d Sess., p. 1271, and see pp. 1263-64. u Ibid., 40th Cong., 1st Sess., pp. 468-79, 513-15. Of the entire delegation, George M. Adams, Radical Republican, was the only Kentuckian admitted on July 3, 1867; see ibid., p. 511. T h e seven contested seats all involved Democratic incumbents; see Henry, Reconstruction, p. 251. " J u l y 8, 1867, Congressional Globe, 40th Cong., 1st Sess., pp. 501-3; Asher C. Hinds, Precedents of the House of Representatives of the United States (8 vols.; Washington: Government Printing Office, 1908), I, 445. Hereafter cited as Hinds, Precedents. " Randall, Civil War and Reconstruction, p. 752. " U. S. Cong., House, Kentucky Members of Congress, House Report 2, 40th Cong., 2d Sess., p. 1. »Ibid., p. 2. " Hinds, Precedents, I, 444. U. S. Congress, House, G. G. Symes v. L. S. Trimble, House Report 6, 40th Cong., 2d Sess.; July 10, 1866, Congressional Globe, 40th Cong., 2d Sess., pp. 447-52. 41 U. S. Congress, House, Samuel E. Smith v. John Young Brown, House Report 11, 40th Cong., 2d Sess., p. 1. " Ibid., pp. 10, 12. u Knott wrote in almost violent terms of his anger at the Radical leadership which had excluded him; see Knott to McCulloch, January 31, 1868, McCulloch MSS, Vol. I I , Library of Congress. ** January 31, 1868, Congressional Globe, 40th Cong., 2d Sess., p. 902. " J a m e s Proctor Knott, The Constitution and the Test Oath (n.p., n.d.), pp. 1-3, 7. "Ibid., p. 8. It is an argument of considerable power, since the House, within a year, moved to preciselv this position. See below, p. 134. ·' Congressional Globe, 40th Cong., 2d Sess., pp. 894, 909.

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NOTES

124-135 " N e i t h e r would Smith. T h e House decided that since he had not won t h e election, Smith could not qualify for t h e seat. It refused to follow English precedents giving the seat to the holder of t h e second-highest score; Hinds, Precedents, I, 448-50. • U. S. Congress, House, Samuel McKee v. John D. Young, House Report 29, 40th Cong., 2d Sess., p. 1. For McKee's defense of the test oath in the S9th Congress, see his speech of March 3, 1866, in Wilson, op. cit., pp. 75-76. 10 U. S. Congress, House, Samuel McKee v. John D. Young, op. cit., pp. 18, 27-28. " Congressional Globe, 40th Cong., 2d Sess., pp. 3368-75. For the debate see ibid., pp. 3328, 3331, 3336, 3368-75. "Tennessee's legislature resolved t h a t : "If this Congress may apply, through an oath of office, a test of present or past political sentiments, another Congress, controlled by the devotees of the G r a n d Army of the Republic, may require that each member shall swear to having actually served a specified term in the army or navy. . . . We do most solemnly and earnestly protest against such action, which if persisted in, and established as the policy of the government, will render the elective franchise a farce and . . . a solemn mockery." Quoted in Henry, Reconstruction, pp. 253-54. " Congressional Globe, 40th Cong., 1st Sess., pp. 768-73. M Ibid., p. 773; Nation, November 28, 1867. " U. S. Congress, House, H. R. Butler, House Report, 18, 40th Cong., 2d Sess. " M a r c h 4, 1868, Congressional Globe, 40th Cong., 2d Sess., pp. 1662-65. On Mungens' poetical efforts, see Mark T w a i n [pseud.], Washington 1868 (Webster Grove, Mo.: International Mark Twain Society, 1943), pp. 11-14. "Nation, February 1, 1866; D. J. Ryan, The Civil War Literature of Ohio (Cleveland 1911) , p. 121. " C. Gayarri, Oaths, Amnesties and Rebellion, Speech Delivered in Odd Fellows Hall, January 25, 1866 (New Orleans 1866), reprinted in De Bow's Review: After the War Series, I (March 1866), 283-304; Gayarrt to Sumner, February 28, 1866; Sumner MSS, Vol. LXXVII, Item 58. H o u g h t o n Library, Harvard University. " Mobly to Sumner, December 20, 1866, ibid., Vol. CLIV, Item 20. " Corley to Sumner, January 21, 1867, ibid., Item 42. n Florida petition to Congress, March 20, 1867, U. S. Senate Records, 40A-H21, Rccord Group 46, National Archives; Journal of the Proceedings of the Constitutional Convention of Georgia, 1867 and 1868 (Atlanta: Ε. H. Pughe, 1868), pp. 58182; Russ, Disfranchisement, pp. 140-43. β March 4, 1868, Congressional Globe, 40th Cong., 2d Sess., p. 1665. " Ibid. " / b i d . , New York Times, March 9, 1868; New York Herald, March 30, 1868. " Congressional Globe, 40th Cong., 2d Sess., p. 1693. " Most Democrats abstained from voting; ibtd., p. 3197. "Ibid., p. 3267. For t h e debate see ibid., pp. 1707-11, 1977-79, 2192, 2220, 2267, and 2559. It extended through May and June, 1868. " Ibid., pp. 3160, and for the House's concurrence in minor stylistic changes, see p. 3198. " V. S. Statutes at Large, XV, 85. " J u n e 16, 1868, Congressional Globe, 40th Cong., 2d Sess., p. 3198.

Chapter 12—Final Repeal 1 As reproduced in J. R. Lowell, Complete Writings (Elmwood Edition; Boston: Houghton Mifflin 8c Co., 1893), XV, 176-77. ' M. Carey, Jr., The Democratic Speaker's Handbook: Containing Everything Necessary for the Defense of the National Democracy (Cincinnati: Miami Printing Co., 1868); Belmont is quoted in Loren Moody, A Plain Statement to Honest Democrats (Boston: R a n d & Avery, 1868), p. 25; Schuckers, Chase, p. 585.

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135-144 * Dr. C. Delarey, The Black Ghost or Radicalism in the United States (New Orleans: L. Marchand, 1868), p. 35; S. S. Cox, Speeches . . . in Maine, Pennsylvania, and New York, 1868 (New York 1868), passim. ' T h i s material, along with many other 1868 election items, appears in U. S. Senate Records, No. 40 A-H22, Record Group 46, National Archives. See also W . H. Smith, "Schuyler Colfax and Reconstruction Policy," op. cit., pp. 335-36; and Annual Message of the Governor of the State of New York, January 1, 1868 (New York 1868) p. 31. •Wilson to James Speed, May 31, 1867, Attorney-General's Office, Letter book I, 402, Record Group 60, National Archives. Wilson's bill to this effect died in committee. * All these facts and quotations are in the file of W . H. Vasser, Assessor, Third District, Mississippi, Treasury Department, Personnel Records, Record Group 56, National Archives. ' S e e letters of January 18, and February 18, 1869, in the file of Benjamin F. McDonough, Assessor, First District, Texas, ibid. ' In ibid., there are many newspaper clippings arguing for payment to the 1866 nonjurors; for the quotation, see Nation, February 18, 1869. * Ackerman to W . A. Richardson, August 5, 1870, Attorney-General, Official Opinions, X I I I , 306-7. " T r e a s u r y Department, Personnel Records, Record Group 56, National Archives. u Congressional Globe, 41st Cong., 2d Sess., p. 2707; U. S. Statutes at Large, X V I , 118. T h e oath prescribed was the same used in the 1850 census—merely one of diligence; ibid., I X , 430. a U. S. Statutes at Large, XV, 344; Nation, May 27, 1869; Dunning, Essays, p. 229 and n. u U. S. Congress, House, Letters on Civil Affairs in Virginia, Executive Documents 302, 40th Cong., 2d Sess., pp. 1-4; Letter from the Secretary of War, ibid., No. 74; The Test Oath in Virginia, Miscellaneous Documents 8, 41st Cong., 2d Sess.; Henry, Reconstruction, pp. 353, 378-79; Attorney-General, Official Opinions, X I I I , 135-38. " For Grant's orders, see U. S. Statutes at Large, X V I , 59, 60, 62, 63; Sumner's resistance is in his speech of January 10-21, 1870, in Sumner, Works, X V I I , 205-33. " A v e r y , Georgia, pp. 407, 415; Henry, Reconstruction, p. 316. " C. D. Drake, Restoring Rebels to Office, Speech in St. Louis, May 17, 1870 (n.p., n.d.), pp. 1-4. " Schuyler Colfax, in his first day of Senate duty as Vice President, learned that several Southern Senators could not be seated because of the test oath; Alabama had sent Confederate Brigadier C. A. Battle among its House delegation. Battle was refused the oath, reelected, and reexcluded. See Ben. Perley Poore, Reminiscences (2 vols.; Philadelphia: Hubbard Bros., 1886), II, 251; W . B. Hesseltine and L. Garra, "Confederate Leaders in Post-War Alabama," Alabama Review, I V (January 1951), 14. " D e c e m b e r 22, 1870, Congressional Globe, 41st Cong., 1st Sess., p. 379. "Ibid., 40th Cong., 3d Sess., pp. 7, 657-77; U. S. Congress, House, J. H. Christy and John A. Wimpy, House Report 8, 40th Cong., 3d Sess., January 15, 1869. " M a r c h 22, 1869, Congressional Globe, 41st Cong., 1st Sess., p. 197. T h e rule was adopted during the South Carolina disputed election case as reported in U. S. Congress, House, Höge v. Reed, House Report 6, 41st Cong., 1st Sess. 31Congressional Globe, 41st Cong., 1st Sess., pp. 6, 13; ibid., 2d Sess., pp. 5442-47; U. S. Congress, House, John L. Zeigler v. John M. Rice, House Report 107, 41st Cong., 2d Sess. a Congressional Globe, 41st Cong., 1st Sess., pp. 2788-96, 2849-52; and see p. 562. For committee reports, see U. S. Congress, House, Sypher v. St. Martin, House Report 11, 41st Cong., 1st Sess.; ibid., J. H. Sypher, House Report 60, 41st Cong., 2d Sess.; Nation, April 20, 1870. A similar South Carolina case resulted in the exclusion of the Democratic incumbent and the seating of the Radical claimant; see U. S. Congress, House, Wallace v. Simpson, House Reports 5, 7, 41st Cong., 1st Sess.; see also Nation, June 2, 1870. "January 30, 1870, Congressional Globe, 41st Cong., 2d Sess., p. 239.

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NOTES

135-144 M U . S. CongTess, House, Whittlesey v. McKenzie, H o u s e R e p o r t 75, 41st Cong., 2d Siess.; Congressional Globe, 41st Cong., 2d Sess., p. 4519. "Ibid., 41st Cong., 1st Sess., p p . 947-50. "Ibid., 41st Cong., 2d Sess., p p . 947-50, 2136, 5195-99; U. S. Congress, House, George Tucker v. Geo. W. Booker, House R e p o r t 41, 41st Cong., 2d Sess. " Hinds, Precedents, I, 465; U. S. Statutes at Large, XVI, 634. " Congressional Globe, 41st Cong., 2d Sess., p. 2648. " J a n u a r y 24, 1871, ibid., 3d Sess., p. 698. Russ, Disfranchisement, p. 186. 11 Ably surveyed in Klingberg, Southern Claims, p p . 80-81. " T h e Negro was R . C. DeLarge of South Carolina; see S. D. Smith, The Negro in Congress, 1870-1901 (Chapel Hill: University of N o r t h Carolina I'ress, 1940), p p . 50-51; Barclay, Liberal Republican Movement, C h a p . vii. "Congressional Globe, 40th Cong., 3d Sess., p p . 282, 1060, 1444; ibid., 41st Cong., 1st Sess., p p . 47. 1087; ibid., 2d Sess., p p . 1261, 1931, 2235; ibid., 3d Sess., pp. 525, 5 2 7 , 8 3 1 . 9 6 2 , 1254, a n d 1630. u Ibid., 42d Cong., 1st Sess., p p . 2894, 4953, 5594. " Ibid., 41st Cong., 3d Sess., p p . 291-94. "Ibid., A p p e n d i x , p p . 305-6, 864-87. Most Negro Congressmen opposed t h e prop o s e d modification; Smith, op. cit., pp. 49, 73, 80. A N e g r o convention p e t i t i o n e d Congress ". . . to e n f o r c e its o w n [test o a t h ] law, so t h a t loyalty a n d t h e rights of loyalty will be preserved. . . . If not enforced, loyalty will b e lost a n d t h e colored p e o p l e , . . . will be reduced to a condition as d e p l o r a b l e as when they were fast e n e d in t h e chains of slavery." See Proceedings of the Colored National Labor Convention Held in Washington, D. C., December 6th-10th, 1869 ( W a s h i n g t o n : Office of t h e New Era, 1869), p. 23. " Congressional Globe, 41st Cong., 2d Sess., p. 1098; ibid., 3d Sess., p. 880. " S e e Cox's satirical speech of February 1, 1871. ibid.. A p p e n d i x , pp. 302-5. It was t i t l e d " F a m i l i a r a n d F r e q u e n t O a t h - T a k i n g . " See also his Three Decades, p . 603. " S e e t h e speeches of Upson (Ohio), Piatt a n d Morey (Louisiana), Arnell (Tennessee), a n d L o n g (Virginia), Congressional Globe, 41st Cong., 1st Sess., p p . 886, 880, 881-82. «Ibid., p. 886. 41 U. S. Congress, Senate, Message of the President of the United States, Executive D o c u m e n t 42, 41st Cong., 1st Sess. See also Nation, F e b r u a r y 9, 1871. β Chief Clerk to I. F. Phillips, July 29, 1871, Attorney-General's Office, L e t t e r b o o k Η , p. 393, Record G r o u p 60, N a t i o n a l Archives. " S a m e to George Andrews, December 24, 1870; F e b r u a r y 19, 1871, ibid., pp. 53738, 661. " Ackerman t o Ε. H . H e r b e r t , April 22, 1871, ibid., p . 717; Russ, Disfranchisement, p . 199. " Chief Clerk to R . A. Hills, J u l y 27, 1871, Attorney-General's Office, Letterbook I, p . 7, Record G r o u p 60, N a t i o n a l Archives. " N u m e r o u s e x a m p l e s a r e in personnel files of t h e several d e p a r t m e n t s in the Nat i o n a l Archives. " A . T . Ackerman to J . H . Caldwell, August 3, 1871, Attorney-General's Office, L e t t e r b o o k I, p. 16, Record G r o u p 60, N a t i o n a l Archives. α R . Healy t o A t t o r n e y - G e n e r a l , O c t o b e r 9, 1875, D e p a r t m e n t of Justice, SourceChronological Files, M i d d l e A l a b a m a , ibid. " D e c i s i o n of J . D. Cox, O c t o b e r 23, 1869, D e p a r t m e n t of t h e I n t e r i o r , Decisions of t h e Secretary, O l d W a r s a n d Navy Divisions, L e t t e r b o o k I, pp. 23-24, Record G r o u p 15, N a t i o n a l Archives. 50 Decision of C. Delano, December 5, 1873, ibid., p p . 28-31. " F o u n d in t h e file of E. J . L u t h e r b e c k , D e p a r t m e n t of Justice, Source-Chronological Files, N o r t h e r n Florida, Record G r o u p 60, N a t i o n a l Archives. " See, for instance, U. S. Post Office, Postal Laws and Reguations (Washington: G o v e r n m e n t P r i n t i n g Office, 1873), p. 23; U. S. D e p a r t m e n t of Justice, Operations, 1872 ( W a s h i n g t o n : G o v e r n m e n t Printing Office, 1873), p p . 7-8; U. S. T r e a s u r y De-

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OATH

144-150 partment, General Regulations Under the Customs and Navigation Laws of the United States (Washington: Government Printing Office, 1874), Art. 1151. β Α . H. F. Hain, A Brief Essay on the Civil Service of the United States (Washington 1872), p. 5. "Rules and Regulations Respecting the Civil Service (n.p., 1872), p. 5; Nation, August 3, 1871. " See letter of Garfield to Hinsdale, December 4, 1873, in Hinsdale, Garfield Letters, p. 257. M W . S. Holt (ed.), Historical Scholarship in the United States, 1876-1901, as Revealed in the Correspondence of Herbert B. Adams (Baltimore: Johns Hopkins University Press, 1938), pp. 40-41. ·* Congressional Record, 44th Cong., 1st Sess., pp. 1146-53. » New York Daily Tribune, April 27, 1878. " Proceedings of the Liberal Republican Convention in Cincinnati (New York: Baker Sc Godwin. 1872), pp. 19, 38-39. " E . Chamberlin, The Struggle of '72 (Chicago: Union Publishing Co., 1872), p. 570. " N . P. Chipman, Republicanism vs. Democracy: Grant or Greeley (St. Louis 1872), p. 3; Grant's Amnesty Record (n.p., 1872), p. 5. • Appleton's Annual Cyclopaedia, 1898, p. 184; Congressional Record, 42d Cong., 2d Sess., pp. 2779, 3572; 3d Sess., pp. 86, 427, 2110; 43rd Cong., 1st Sess., pp. 64, 65; 44th Cong., 1st Sess., p. 3265. " B a r t o n H. Wise, The Life of Henry A. Wise of Virginia, 1806-1876 (New York 1899), pp. 376-77; S. A . Wallace (ed.), "Confederate Exiles in London, 1865-1870: T h e Wigfalls," South Carolina Historical and Genealogical Magazine, L I I (July 1951), 146. ** T h e amazing extent of that participation is indicated in Hesseltine, Confederate Leaders, pp. 24-25, 140. In 1877, when ex-Confederate regimental commander David M. Key became a Democratic Postmaster-General under Hayes, the peak of that participation was reached; see C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (Boston: Little, Brown & Co., 1951), pp. 169-70. " S e e the many communications on this subject from 1865 to early in 1871 in Attorney-General's Office, Letterbooks Β through K, Record Group 60, National Archives. T h e y are too numerous to cite individually. As specific instances, note that for Jefferson Davis' trial a difficulty arose in securing a jury because of the oath; Randall, Constitutional Problems, p. 110 n. Canby's order enforcing that requirement in South Carolina almost excluded whites from jury duty; J. P. Hollis, The Early Period of Reconstruction in South Carolina (Baltimore: Johns Hopkins University Press, 1905), p. 73. See, too, Dunning, Essays, p. 160, for the similar situation in Texas. " W i l s o n to James Speed, May 31, 1867, Attorney-General's Office, Letterbook I, p. 403, Record Group 60, National Archives. " U. S. Statutes at Large, X V I I , 15. " D . J. Baldwin to A . Ackerman, June 7, 1871, Department of Justice, SourceChronological Files, Eastern District, Texas, Record Group 60, National Archives. " J . N . Pomeroy, " T h e Revision of the U. S. Statutes," American Law Review, V I (March 1877), 211-29, indicates the public interest in the revision and the terrific pressure under which the editors worked. " U. S. Department of Justice, Register (4th ed.; Washington: Government Printing Office, 1874), pp. 183-84. " C h i e f Clerk to A. F. Gray, December 1, 1874, Department of Justice, Executive and Congressional Letterbook Β, p. 191, Record Group 60, National Archives. n Congressional Record, 48th Cong., 1st Sess., p. 553. n United States v. Hammond et al„ Federal Cases No. 15,294 (1875). " Appleton's Annual Cyclopaedia, 1879, p. 24; New York Daily Tribune, June 6, 1879. " 9 Otto, 183.

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144-150 "Burt v. Panjoud, ibid., 188. "Attorney-General to M. F. Pleasants, May 1, 1880, Attorney-General's Office, Letterbook Κ, p. 112, Record Group 60, National Archives. ™ For such a situation in Arkansas, see letter from George H. Williams to C. F. Blake, May 10, 1875, ibid., p. 719. " E d w a r d Pierrepont, Attorney-General, to Η. E. Pritchett, February 19, 1876, Department of Justice, Judges and Clerks, U. S. Courts, Letterbook I, p. 193, ibid. " S e e the complaint of William Walker to the Attorney-General, December 19, 1879, Department of Justice, Source-Chronological Files, Western District, Arkansas, Record Group 60, National Archives. " S e e the file of E. A. Rimes, especially the letters of September, 1875, ibid., Northern Florida. " I n a letter from the Chief Clerk to the Speaker of the House, March 9, 1883, Department of Justice, Executive and Congressional Letterbook A, Record Group 60, National Archives. " New York Daily Tribune, January 6, 1876. " E n t r y for November 5, 1877, C. R. Williams (ed.). Diary and Letters of Rutherford B. Hayes (5 vols.; Columbus: Ohio State Archeological and Historical Society, 1924), III, 450. " Congressional Record, 44th Cong., 1st Sess., pp. 3690-92, 3743. "Woodward, op. cit., pp. 8-9; Binkley, American Political Parties, p. 309. n Williams, Hayes, II, 170. "Congressional Record, 45th Cong., 3d Sess., p. 2173; for the debate, see pp. 1168, 1170, 1171-75, 1196-98, 1211-14, 1281-85, 1901-7, 2182-84, 2186. " H a y e s to W. H. Smith, March 27, 1879, Williams, Hayes, II, 179 n. " M a r c h 10, 1879, in U. B. Phillips (ed.), The Correspondence of Robert Toombs, Alexander H. Stephens, and Howell Cobb [Annual Report, 1911, American Historical Association], (2 vols.; Washington 1913), II, 736-37. " April 2, 1879, ibid., p. 739. " Hinsdale, Garfield Letters, pp. 404, 413; Williams, Hayes, pp. 200-203 and n. " Congressional Record, 46th Cong., 1st Sess., pp. 142, 304-11, 898-900, 1204-20, 1450-55, contain debates on this bill. See pp. 1709-10, 1712, for details and Hayes' veto message. "New York Daily Tribune, June 4, 1879; Washington Evening Star, June 3, 4, 1879; Cox, Three Decades, pp. 603-16. " J u n e 6, 1879. M Cox, Three Decades, pp. 603-16, and p. 257; W. Van Zandt Cox, Life of Samuel Sullivan Cox (Syracuse 1899), p. 101. For contemporary recognition of Cox's antioath fight see, Louis Claude Whiton, " T h e Abolition of Oaths," Albany Law Journal, X X I X (September 1884), 345-46. " Details are in Cox, The Test Oath—Its Repeal, Speech, January 21, 1884 (New York 1884), pp. 4-5; Washington Evening Star, November 30, 1880. " S e e Bradley's extended comments in United States v. Gale, 109 U. S. 65, at pp. 73-74 (1885). " F o r the debate see Congressional Record, 48th Cong., 1st Sess., pp. 11, 98, 291, 551-54, 586, 712, 1420, 3936, 3952, and 4174; New York Daily Tribune, January 22, 25, 1884; U. S. Statutes at Large, X X I I I , 21-22. Existing claims were not affected by the repeal. 100 For a survey of remaining disabilities arising out of the rebellion, especially under the Fourteenth Amendment, see Russ, Disfranchisement, p. 26. A few Southerners were touched by these disabilities until 1898; Appleton's Annual Cyclopaedia, 1898, pp. 183-84, describes the final repeal of disabilities.

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151-156 Conclusion ' M a r c h 3, 1873, Congressional Globe, 41st Cong., 3d Sess., p. 1971. 1 B . F. Weera to A n d r e w J o h n s o n , M a r c h 16, 1866, J o h n s o n MSS, Vol. X C I , Library of Congress. •S. A. Wallace (ed.), " C o n f e d e r a t e Exiles in L o n d o n , 1865-1870; T h e W i g f a l l s , " op. cit., p p . 143-53; Wise, Wise, p p . 376-77; Hesseltine, Confederate Leaders, p . 39. 4 J . B. H u b b e l l (ed.), The Last Years of Henry Timrod, 1864-1867 ( D u r h a m : D u k e University Press, 1941), p . 47; Stephens, Recollections, p . 245; F r e e m a n , Lee, IV, 205. • M a r y Boykin C h e s n u t , A Diary from Dixie, ed. Ben Ames W i l l i a m s (Boston: H o u g h t o n Mifflin Co., 1949), p p . 540-41; H u g e r - S m i t h , Family Letters, p. 243; G. W . Bacon a n d E. W . R o w l a n d (eds.), Letters of a Family During the War for the Union, 1861-1865 (2 vols.; n.p., 1899), II, 697. • Hesseltine, Confederate Leaders, p . 73. ' See Loyalty, What is it? To Whom or What Due? (n.p., 1863), a n d Rev. J a m e s Cooper. The Loyalty Demanded by the Present Crisis ( P h i l a d e l p h i a : H . C. Ashmead, 1864). • F. B. Simkins a n d J. W . P a t t o n , The Women of the Confederacy (New York: G a r r e t t 8c Massie, Inc., 1936) , p p . 51 a n d 61; J . R . Ficklen, History of Reconstruction in Louisiana (Baltimore: J o h n s H o p k i n s University Press, 1910), p . 40 n.; W i l liamson, Prison Life, p. 62; A R e f u g e e , Letter to the President of the United States (New York 1863), p. 9; Η . M. Dexter, What Ought to be Done with the Freedmen and the Rebels?: Sermon, Berkeley Street Church, Boston, April 23, 1865 (Boston: Nicholas 8c Noyes, 1865), p p . 3-10. •California Teacher, I (August 1863), 50. "Nation, August 10, 1865. 11 C. B. Swisher, Roger B. Taney (New York: Macmillan, 1936), p p . 576-77. u Opinion of the Hon. Reverdy Johnson (n.p., n.d.); P. Clayton, The Aftermath of the Civil War in Arkansas (New York: Neale P u b l i s h i n g Co., 1915), p p . 51-53; o n Virginia, see Nation, August 3, 1865. ** Avery, Georgia, p. 345. " David Fultz to J o h n s o n , S e p t e m b e r 2, 1865, J o h n s o n MSS, Vol. L X X V , L i b r a r y of Congress. " Rev. C. Lowe, The Conditions and Prospects of the South (Boston: W a l k e r , Fuller 8c Co., 1865), p. 2; Nation, J u l y 13, 1865. " S. T . Grover (pseud.), An Original Republican, Remarks on the Existing Rebellion (St. Louis: Dispatch Office, 1865), p p . 13-14, 17-18. " W . H . Lyons to J o h n s o n , August 29, 1865, describing a mass m e e t i n g in Richm o n d which endorsed t h e q u o t e d resolution, J o h n s MSS, Vol. L X X V I , L i b r a r y of Congress. " G e o r g e s Clemenceau, a R a d i c a l s u p p o r t e r , wrote: " I t is u n f o r t u n a t e t h a t t h e R e p u b l i c a n s h a v e not in all cases shown good j u d g m e n t in t h e i r R e c o n s t r u c t i o n measures. O n e of t h e p r i n c i p a l tests of loyalty, past, present, a n d f u t u r e , of a n y candidate, is t h e o a t h . But t h e Anglo-Saxons h a v e always abused t h e o a t h . For a n y t h i n g or n o t h i n g . . . a m a n has to raise his h a n d a n d kiss t h e Bible. It does not in t h e least h a m p e r a rogue who becomes as accustomed t o taking a n o a t h as a d e a l e r in c h u r c h f u r n i t u r e in h a n d l i n g a pyx. F a m i l i a r i t y breeds c o n t e m p t . As for t h e honorable m a n , h e disliked t h e o a t h a n d it a d d s n o t h i n g to t h e force of his w o r d . " Clemenceau, American Reconstruction, p p . 84-85. " B r i g h a m , Harlan, p. 227. " Caustically c o m m e n t e d u p o n by a n E n g l i s h m a n in " P a r l i a m e n t a r y O a t h s in Foreign Countries," Journal of Jurisprudence, X X V I (1882), 364-65. " J . F. Rhodes, History of the United Slates, From the Compromise of 1850 to . . . 1877 (New York: Macmillan, 1906), V, 610 n. " McPherson, Reconstruction Letters, p . 86; Ravanel, Journal, p p . 301-2. " ] . D. Cox, Military Reminiscences of the Civil War (2 vols.; New York: 1900), I, 153-54, a n d see p p . 417-19.

207

NOTES

151-156 " N o t u n t i l 1916 d i d Congress end t h e r e q u i r e m e n t of Civil W a r loyalty (or pensioners; Glasson, Pensions, p . 127 n. " Klingberg, Southern Claims, passim; t h e interrogatories are in t h e T r e a s u r y D e p a r t m e n t , Commissioner of Claims J o u r n a l , I, 155-56, Record G r o u p 56, Nat i o n a l Archives. M E. A. T h o m a s , " O a t h s in Legal Proceedings," North American Review, C X X X V (July 1882), 220-29. " Russ, Lawyers Test Oath, passim, surveys r e p e a l i n g legislation. See also The Constitution of the State of Maryland (Annapolis: W . T h o m p s o n , 1868), p. 21, and arts., 17 a n d 18; Debates and Proceedings of the Constitutional Convention of Illinois,, 1869 (2 vols.; Springfield; E. L. Merritt, 1870), I, 1012. T h e y failed, too, i n E n g l a n d , w h e r e r e f o r m e r s saw t h e American experience with loyalty oaths as evidence t h a t Britain's statutes should b e cleansed of obsolete a n d useless o a t h forms. Of t h e extensive l i t e r a t u r e d e a l i n g with the English drive to end their o a t h requirements, t h e following make t h e most direct use of t h e American experience with t h e Civil W a r loyalty tests: " O a t h s , " Comhill Magazine, VII ( J u n e 1863), 516-29; " O a t h s of Office," Chamber's Journal, XLVI ( J a n u a r y 1869), 36-40; Frederick Pollock, " T h e O a t h of Allegiance," Macmillan's Magazine, XLI1 (May 1880), 312-20; M o n c u r e D. Conway, The Oath and its Ethics ( L o n d o n : F. G. Hickson & Co., 1881); C. C. Coe, " T h e Abolition of J u d i c i a l Oaths," Modern Review, IV (January 1883), 97-120; William E. Gladstone, Parliamentary Oaths (London 1883); S. E. DeVere, "A Short T r a c t U p o n Oaths," Nineteenth Century, X V I I (April 1885), 690-700; Bishop of Peterboro u g h , " O a t h s : P a r l i a m e n t a r y a n d J u d i c i a l , " Contemporary Review, X L I X (January 1886), 1-17.

BIBLIOGRAPHY UNPUBLISHED MATERIALS MANUSCRIPT COLLECTIONS Unless otherwise indicated, these MSS are located at the Library of Congress. Barlow, S. L. M. MSS, Columbia University. Black, Jeremiah. MSS. Buchanan, James. MSS, New-York Historical Society. Chase, Samuel P. MSS. Crittenden, J . J . MSS.

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ERA OF THE OATH — , War Department. Circulars, Provost Marshal General's Office, 1863-64. n.p., n.d. — , War Department. Digest of Opinions of the Judge Advocate General. Washington: Government Printing Office, 1865. — , War Department. Instructions for Mustering into Service. Washington: Government Printing Office, 1863. — , War Department, Report of the Board of Education for Freedmen, Department of the Gulf, 1864. New Orleans: T r u e Delta. 1865. — , War Department. f\ar of the Rebellion: . . . Official Records of the Union and Confederate Armies. 128 vols. Washington: Government Printing Office, 1880-1901.

INDEX

A b a n d o n e d lands, oath requirement for, 43 Ackerman, Amos T., opinion on salaries for nonjurors, 136 Adams, Herbert Baxter, 144 Administrative problems: i m p r o p e r oath forms, 121-23; ironclad test oath, 136; jurors' test oath, 146, 147-48; multiplicity of oaths, 143-44; postwar, 48-68; war years, 24-25, 34-35 Alabama: federal courts, 56, 57; postal service, 55, 57 Aliens: Louisiana, 38-39; Tennessee, 40 Andrews, Sidney, 51 Arkansas: federal courts, 57; judicial decision on voters' oath law, 117 A r t h u r , Chester Α., 150 Alwood v. Weems, 147 Banks, Nathaniel P., New Orleans loyalty program, 38 Barth, Alan, vii Baskins, A. G.. South Carolina customs assessor, loyalty of, 76 Bates, Edward: opinion on 1861 oath, 10; proposes first Civil W a r loyalty test, 1 Bayard, James Α., applicability of ironclad oath to Congressmen, debate, 26-31 Beck, James B., Kentucky contested election, 128-29, 130 Bellows, Henry, Rev., xiii-xiv Belmont, August, 135 Bierman, J o h n , Texas customs collector, loyalty of, 122-23 Black, Hugo, opinion on Garland a n d Cummings cases, 119-20 Blaine, James G., 60 Blair, Francis P.: interest in Cummings case, 110; Missouri suffrage case, 117 Blair, Montgomery: counsel in Cummings case, 110-13; Post Office loyalty investigations, 9-10, 14; significance of 1866 elections, 124 Booker, George W „ Virginia contested election, 140-41 Boudin, Louis, 114 Boutelle, Charles Α., 149-50 Boyden, Nathaniel, North Carolina contested election, 141 Bradley, Joseph P., 150 Brooks, James, 131 Brown, Bailey, gatekeeper, disloyalty charges against, 5-6 Brown, James H., decision in Faulkner case, 100-101 Brown, J o h n Young, Kentucky contested election, 128-30, 132 Brownlow, W. G. ( Parson"), 103 Buckalew, Charles R., 134 Buell, D. C„ 35 Bullock, R. F., 138 Busteed, Richard, decision in Shorter case, 104-5. Butler, Benjamin F.: administration of New Orleans, 37-39; on ironclad oath, 142; Virginia and North Carolina commands, 41 Butler, R. R.: d o u b t f u l loyalty, 131-34; receives special oath, 133-34 Cabinet: discussion of oath requirements, 1, 51-52, 56, 61; reports on clerks' loyalty, 70-71 California: Cohen v. Wright case, 95-97; text of 1863 oath, 191 n. 4 Cameron, Simon, uncooperative with Potter Committee, 6 Carey, Matthew, Jr., 135 Carleton, General, in Arizona Territory, 36

224

ERA OF THE O A T H

Carpenter, Μ. H., counsel in Garland case, 108-10 Cartter, David K., decision in Magruder case, 115 Chandler, Zachariah, 67 Chanler, J o h n W „ 130 Chase, Salmon P.: administers 1861 oath, 2; denies rumors of Garland decision, 108; dissenting opinion in Garland and Cummings cases, 112-13; on ironclad test oath, 135; on loyalty oaths, 81; relations with Potter Committee, 8; utility of oaths for Southern civilians, 35 Christy, J. H., Georgia contested election, 138 Clark, T o m , 120 Clemens, Samuel (Mark Twain), xii, 13 Cohen v. Wright, 95-97 Colfax, Schuyler: demands loyalty, 21; denies Southern representation, 88; letter from Sumner, 58 Commager, Henry Steele, 120 Confederacy: reaction to Union oaths, 36, 46; regulation of Union oath takers, 45 Congress: ironclad test-oath requirement for members of, 88-94; power to add qualifications to members-elect, 87, 190 n. 51 Congressmen, status as civil officers, 88-94, 171 n. 60 Cook, Burton C., 130-31 Corley, Simeon, 133 Corwin, Edward S., 114 Courts, federal, postwar administrative problems, 56-57, 146, 147-48 Cox, Jacob D„ 155 Cox, Samuel Sullivan: comments on test oaths in 1868 campaign, 135; on modification of oath, 142; repeal fight, 149-50; as Speaker pro tem, 145 Crocker, R. B., decision in Cohen case, 96-97 Croft, W. S., South Carolina customs collector, loyalty of, 80 Cummings v. Missouri, 110-14 Curtis, George Ticknor, 21 Darnall, T h o m a s L., WaT Department clerk, loyalty of, 4-5 Davis, Garrett: defends jurors' oath bill, 22; on definition of loyalty, 151; speech, 31-32 Davis, Henry Winter: criticizes Presidential amnesty oath, 49; on penalties for exrebels, 83 Davis, Jefferson, 36 Dawes, Henry L., 133, 141 Deming, H. C., supports use of loyalty oaths, 81-82 Dennison, William: change in ironclad oath policy in Post Office Department, 56; policies on oath requirement, 53; report to House, 62-67; report to Senate, 60 Dickens, Charles, 12! District of Columbia, 21 Douglas, William O., 120 Douglass, Frederick: criticizes administration, 2; on releasing Southern prisoners, 45 Drake, C. D., 137 Edmunds, George F., 138 Eggleston, George C., 49-50 Elections: of 1862 and 1864 , 44; of 1866, 94, 124; of 1868, 135-36; of 1870, 141; of 1872, 145 Elections, Congressional, contested: Georgia, 138; Kentucky, 128-31, 138; North Carolina, 141; Virginia, 140-41 Erskine, J o h n , decision in Law case, 105-6 Executive loyalty investigations, 6, 9-12 Ex parte Faulkner, 99-101 Ex parte Garland, 107-15 Ex parte Law, 105-6 Falls, A. J., Census Bureau clerk, loyalty of, 11 Field, David Dudley, counsel in Cummings case, 110-13

INDEX

225

Field, Stephen J., opinion in Garland case, 109-10 Finck, William E., 132 Fiske, John, 1 Fitzgerald, John, Treasury clerk, dMoyal statement, 11 Flag Salute case, 120 Florida: postwar federal courts, ironclad test oath, effects on, 57; wartime Union oaths, 36 Foot, Solomon, 25 Foster, L. S., 15 Fraenkel, Osmond K., 114 Gallegher, Richard, Patent Office laborer, accused of disloyalty, 11 Garland, Augustus Hill, petition to Supreme Court, 107 Gayarri, Charles, 132 Georgia: contested elections, 138; postwar effects of ironclad test oath, 55-56 Godkin, E. L., 135 Grant, U. S.: on ironclad test-oath modification, 142; on payment for nonjurors, 136 Grimes, James W„ 91 Grover, A. P., Kentucky contested election, 128-29 Habeas corpus, 33-35 Haines, Charles G., 114 Hale, John P., 22 Halleck, Henry YV.: letter to Lee on Union oaths, 36; Missouri loyalty program, 37 Hamilton, A. J . , 55 Harlan, James, 51 Harris, Ira, 22 Hawthorne, Nathaniel, xiii, 21 Hay, John, 49 Hayes. R . B.: advises repeal of ironclad test oath for veterans of War of 1812 and Mexican War, 148; in campaign of 1866; veto of test-oath repeal bill, 149 Henderson, John B., counsel for Missouri in Cummings case, 111-12 Hendricks, Thomas Α., 27 Hill, Benjamin H., 86 Holmes, Nathaniel, decision in Garesche case, 98-99 Holt, Joseph, 4 Informers, 43, 46 In re Baxter, 102-3 In re Shorter et al., 104-5 Ironclad test oath (civil and military officers' federal oath law, July 2, 1862; see also Oaths, Federal); applicability to Congressmen, 25-31; census takers, not required, 137; conflict with executive Reconstruction, 51; effects in postwar South, 55-57; modification requests, 61-67; modifications, 132-34, 137-38, 142; partisan use of, 90; passed, 22-23; repeal efforts, 145-50; significance in Reconstruction, 54; text, 158-59 Jay, John, Jr.: letter to Charles Sumner, xiv; on loyalty oath for federal jurors, 22 Johnson, Andrew: administration of loyalty tests in Tennessee, 39-40; amnesty and reconstruction proclamation, May 29, 1865, 48, 50; demands oath for trade with South, 43; equates loyalty and Presidential oath, 84; on ironclad test oath for Congressmen, 83; modification of ironclad test-oath request, 61; rumored repeal of ironclad test oath, 86; speeches, 48, 58, 135; urges compliance with test-oath law, 85-86; on use of local residents for federal offices, 52; view of executive pardoning power, 101-2 Johnson, Herschel V., 55-56 Johnson, Reverdy: counsel in Cummings case, 112; counsel in Garland case, 108-10; on lawyers' test oath, 31-32; on moral implication of oaths, 153; on Patterson admission, 91; supports salary payments to nonjurors, 69 Jones, George Wallace, disloyalty and pension, 14

226

ERA OF THE O A T H

Jones, T h o m a s L., Kentucky contested election, 128-29 J u l i a n , George F., xiii, 2 Kentucky: contested elections, 128-31, 138; effecy of ironclad test o a t h on postwar federal courts, 57; w a r t i m e loyalty-oath system, 36-37 Kerr, Michael C., 130 Knott, J . Proctor, Kentucky contested election, 128-29, 130 L a t h a m , Milton S., 15 Lazarus, Ε. M., customs appraiser, loyalty of, 79-80 Lee, R o b e r t E.: advised t o take federal o a t h , 49; follows his state, xii; protests against U n i o n loyalty oaths, 36 Letcher, J o h n , 36 Lieber, Francis, 39 Lincoln, A b r a h a m : amnesty a n d reconstruction p r o c l a m a t i o n , D e c e m b e r 8, 1863, 28, 41; on Delaware loyalty o a t h , 40; d e m a n d s loyalty o a t h f r o m prisoners-of-war, 34; dislike of oaths of past loyalty, 48-49; E m a n c i p a t i o n P r o c l a m a t i o n criticized, 43; exempts sister-in-law f r o m loyalty o a t h , 37; o a t h viewed as war w e a p o n , 44, 49; orders oath renewal by military a n d naval officers, 16; on prisoners-ofwar, 45, 46; signs o a t h laws, 2, 15, 22, 23, 32; on subversion, xii; o n Tennessee oath r e q u i r e m e n t , 40 Lodge, Henry Cabot, xii Louisiana: effects of ironclad test oath on postwar federal courts, 57; contested elections, 138-39; w a r t i m e U n i o n oath p r o g r a m , 37-38 Lowe, Charles, R e v e r e n d , 153 Lowell, J a m e s Russell, 13, 135 Loyalty, p r o b l e m of definition, 6-7, 69-82, 151-56 Loyalty investigations: Congressional, 1-12, 16; executive, 6, 9-12 Loyalty regulations: aliens, 38-40; Arizona T e r r i t o r y , 36; C a l i f o r n i a , 13; d e m a n d e d by N o r t h e r n p u b l i c o p i n i o n , xi-xiv; District of C o l u m b i a voters, 21; federal contracts, 21; First Confiscation Act, 21; fugitive slave law, 21; habeas corpus suspension, 33-35; journalists, 13; Kentucky, 36; L o n d o n , 13; Louisiana, 37-38; Massachusetts, 13; Missouri, 13, 37; N o r t h Carolina, 41; passports, 17-20; postal contractors, 14; Rome, 19-20; slaveowners of the District of Columbia, 21; Southern commerce u n d e r T r e a s u r y D e p a r t m e n t , 41-43; telegraphers, 13; T e n nessee, 39-40; Virginia, 13, 40-41. See also Oaths, Federal a n d State McClellan, George P., 35-36 McCulloch, H u g h : correspondence with Sumner, 53-55; criticized by Sumner, 58; discharges n o n j u r o r s , 71-72; a n d ironclad test-oath p r o b l e m s , 51-56, 122-23; on p a y m e n t s to n o n j u r o r s , 136; reconstruction policy, 58; r e p o r t t o House, 61-67, report to Senate, 59-60; a n d T r e a s u r y D e p a r t m e n t p a t r o n a g e , 59; violates testo a t h law, 53 McDowell, J., assessor, Mobile, A l a b a m a , loyalty of, 80-81 McKee, Samuel, Kentucky contested election, 131 McKenzie, Lewis, Virginia contested election, 140 McPherson, E d w a r d , 88 Marshall, J o h n , q u o t e d , 27 M a r y l a n d : judicial decision on voters' o a t h , 117; Reverdy J o h n s o n on oath of, 153 Mathews, J. M., customs collector, Virginia, loyalty of, 76 Mattingly, J o h n H., postal clerk, refuses loyalty o a t h , 10 M a y n a r d , Horace: counsel in Baxter case, 103; on ironclad test-oath modification, 134; Tennessee delegate a n d ironclad test o a t h , 88 Meade, George, 49, 138 Miller. Η . V. M„ 138 Miller, Samuel F., 147 Minnesota, judicial decision on o a t h for litigants, 116 Mississippi, effects of ironclad test oath on p o s t w a r federal courts, 57 Missouri: Alexander J. P. Garesche case, 97-99; attorneys' o a t h , j u d i c i a l decision, 116; college curators' o a t h , judicial decision, 118; c o n s t i t u t i o n a l convention, 37; Cummings v. Missouri, 110-13; federal courts o p e r a t i n g , 57; j u r o r s ' oath, judicial

INDEX

227

decision, 116-17; o a t h breakers, 46; p u b l i c officers' oath, judicial decision, 118; teachers' o a t h , judicial decision, 118; voters' o a t h before S u p r e m e C o u r t , 116-18; w a r t i m e loyaltv p r o g r a m , 37 Mobly, C. R., 132-33 M o r t o n , O. O., 51 Mullins, J a m e s , 131 M u n g e n , W i l l i a m , 132 Nation, 82 Negroes, freed, pass system, 43 Nevada, judicial decision o n voters' o a t h , 117 New York, judicial decision on voters' o a t h , 117 N o r t h C a r o l i n a : effects of ironclad test oath on postwar federal courts a n d postal services, 55-57; contested election, 141 Oaths: (1) Federal: a b a n d o n e d lands, for, 43; A b a n d o n e d Property Act, in, 24; administrative p r o b l e m s , 24-25, 54-35, 121-23, 136, 143-44, 146; applied in S o u t h , 35, 47; attorneys', law ( J a n u a r y 24, 1865), 31-32, 102-10, 114 (text, 159); civil officers', law (1789), 1 (text, 163 n. 2); civil officers', law (August 6, 1861), 1-2 (text, 157); civil a n d military officers', law (July 2, 1862), 22-23, 25-31, 51, 54, 55-57, 61-67, 90, 132-34, 137-38, 142. 145-50 (text, 158-59; see also Ironclad test oath); C o m p troller of Currency, r e q u i r e d of, 24; C o u r t of Claims Act, in, 24; jurors', law ( J u n e 17, 1862), 21-22, 117, 145-48, 150 (text, 157-58); m o r a l aspects, 76, 153; passports, r e q u i r e d for, 17-20, 123; postal law, 1863, required, 24; Presidential amnesty a n d reconstruction, text of, 173 n. 9; shipmasters, required, 16-17, 123; steamboat pilots', 14, 123; West Point cadets, r e q u i r e d , 16 (see also Loyalty regulations). (2) State: Arkansas, 117; California, 95-97 (text, 191 n. 4); M a r y l a n d , 117, 153; Missouri, 37, 97-99, 110-13, 116-18 (see also Missouri); New York, 117; teachers, surveyed, 191 n . 3; Tennessee, 118; West Virginia, 99-101, 116, 118 (see also West Virginia). Olin, A b r a h a m B., 3, 16 O r d , E d w a r d O. C„ 126 Owen, R o b e r t Dale, 83 Page, T h o m a s Nelson, 83 Parsons, T h e o p h i l u s , 81 P a r t o n , James, 38 Passports, 17-20, 123 Patterson, David T . , fitness to take ironclad test oath, 91-94 Pensions, loyalty r e q u i r e m e n t s , 14, 15, 155 Perry, B e n j a m i n F., 86 Phillips, W e n d e l l , 84 Pierpoint, Francis H., 40-41 P l a n t a t i o n oaths, 43 Poland, L u k e P., 140-41 Pope, J o h n , 35 Post Office, 24, 55, 62-63 Potter C o m m i t t e e , 1-9, 154 Potter, J o h n F.: censures Chase, 8; defends loyalty investigating methods, 3-4; forms investigating committee, 1; sponsors jurors' o a t h bill in House, 22 Presidential power, extent of: conflicts with ironclad test o a t h , 28; p a r d o n i n g , 101-2, 119; to void obligation of an o a t h , 39 Price, H i r a m , 133-34 Prisoners-of-war, 44-47 Professional qualifications, distinguished f r o m test oaths, 118-19 Quakers, 44 Reconstruction: Acts, 125-27; a n d ironclad test o a t h , 51, 54, 125-27; effects of ironclad test o a t h in occupied states, 137

228

E R A OF THE

OATH

Rhodes, James Ford, 155 Rice, John M„ Kentucky contested election, 138 Rogers, Andrew J., 66-67 Rollins, Ε. Α., 59 Rosecrans, William S., 40 Russ, William Α., Jr., 23, 124-25 Rutledge, Wiley, 120 St. Martin, Louis, Louisiana contested election, 138-39 Saulsbury, Willard. 22, 31 Schenck, Robert, 40 Schober, Francis E., North Carolina contested election, 141 Schurz, Carl, 50, 84, 94 Scott, Winfield, 2, 13 Seward, Frederick, 25 Seward, William H.: on alien oath requirement, 38-39, 40; on habeas corpus suspension, 33-34; loyalty investigations of State Department, 9; and passport brokers, 18-19; passport loyalty-oath requirement ended by, 123; requests shipmasters' oath law, 16-17; requires loyalty oath for passports, 17-18 Sherman, John, xii, 69 Sherman (W. M.)-Johnston Convention, 49 Sickles, Daniel E„ 79, 126 Slaves, 21, 43-44 Smith, Caleb. 10, 14-15 Smith. Gerrit, 82 Smith, Samuel E„ Kentucky contested election, 129-30 South Carolina, 56-57 Southern Claims Commission, 155-56 Speed, James, 51, 52, 53 Stanberry, Henry: counsel in Garland case, 109-10; interpretation of Reconstruction Act, as Attorney-General, 125 Stanton, Edwin M.: on disfranchisement, 125; on ironclad test oath, 51-52; relations with Potter, 8; report to Senate, 60 State Department, 9, 19-20, 123. See also William H. Seward Stedman, E. C., xiii Stephens, Alexander H., 148-49 Stevens, Thaddeus: advocates repeal of attorneys' ironclad test-oath requirement, 108; on enforcement of ironclad test oath, 132; secures Joint Reconstruction Committee, 88 Stokes, William B.. 131 Story, Joseph, quoted, 69 Strong, George P., counsel in Cummings case, 111-12 Strong, George Templeton, 95 Sumner, Charles: on admission of David T. Patterson, 91; on admission of Philip Francis Thomas, 128; correspondence with McCulloch on ironclad test oath, 53-55; criticizes McCulloch, 67; identifies political significance of ironclad test oath, 82; letter from John Jay, xiv; letter to Schuyler Colfax, 58; on payment to nonjurors, 69; penalties for ex-rebels, 83; sponsors ironclad test oath for attorneys, 31; sponsors passport loyalty requirement, 19; supports ironclad test oath for Senators, 26-31; and Virginia mail contractors oath, 70 Symes, G. G., Kentucky contested election, 129 Sypher, J. H., Louisiana contested election, 138-39 Taney, Roger B., 153 Teachers, oaths, bibliographical survey, 191 n. 3 Tennessee: effects of ironclad test oath on postwar federal courts, 57; delegation denied seat, 131-34; voters' oath, judicial decision, 118; wartime oath program, Territories, 73-74 Texas, effects of ironclad test oath on postwar courts and postal services, 55-57 Thomas, George, xii

INOEX

229

T h o m a s , P h i l i p Francis, d e n i e d ironclad test o a t h , 127-28 T i m r o d , H e n r y , 152 T o o m b s , R o b e r t : on r e p e a l of ironclad test o a t h , political implications, 148-49; q u o t e d , 194 n. 51 T o u s e y , Sinclair, xiv T r e a s u r y D e p a r t m e n t : a d m i n i s t r a t i v e problems, 48-68, 55, 56, 122-23; effects of ironclad test o a t h , 59-60, 71-82; loyalty regulations for Southern commerce, 41-43; p a t r o n a g e , 58-59; p a y m e n t s to n o n j u r o r s , 69-70 (see also H u g h McCuIloch) T r i g g , Connolly F., decision in In Re Baxter, 103-4 T r i m b l e , Lawrence S., Kentucky contested election, 128-29 T r o w b r i d g e , J . T „ 86 T r u m b u l l , L y m a n : on admission of David T . Patterson, 91-94; on p a y m e n t to nonj u r o r s , 69; s u p p o r t s ironclad test-oath legislation, 22-23, 25-26 T u c k e r , G., Virginia contested election, 140-41 T u l l a r , Daniel, T r e a s u r y clerk, loyalty of, 78-79 U p p e r m a n , C. E., P a t e n t Office clerk, loyalty of, 11 V a l l a n d i g h a m , Clement L., 16 Vasser, W i l l i a m H „ C o l u m b u s , Mississippi, assessor, loyalty of, 76-78 Vinson, Fred M., 120 V i r g i n i a : effects of i r o n c l a d test o a t h on postwar federal courts, 56-57; contested election, 140-41; U n i o n g o v e r n m e n t o a t h p r o g r a m , 41 W a d e , B e n j a m i n F., 43 W a d e - D a v i s Bill, 49 W a l t e r , F. W., customs a p p r a i s e r , loyalty of, 79 W a r D e p a r t m e n t : a d m i n i s t r a t i v e problems, 44; penalties for oath breakers, 45-46 W a r d , Sam, 13 W a t t e r s o n , Η . M.: letter t o J o h n s o n , 55; urges Southern compliance with ironclad test-oath law, 85-86 Welles, G i d e o n : criticizes ironclad test o a t h , 51, 52, 95; narrowly defines disloyalty, 11-12; d e m a n d s loyalty in Navy D e p a r t m e n t , 2; relations with Potter C o m m i t tee, 6 West Point, cadets, loyalty o a t h s r e q u i r e d , 16 West Virginia: judicial decisions on state oaths, 116, 118; loyal oaths, 99-101; wart i m e oath p r o g r a m , 41 W h i t m a n , W a l t , xii Whittlesey, Charles, Virginia contested election, 140 Wickliffe, Charles Α., criticizes Potter, 3 W i l m e r , Bishop, 152 W i l m o t , David, 43 Wilson, James, 23, 136, 146 W i m p y , J. Α., Georgia contested election, 138 W i n d o m , W i l l i a m , 148 W o r t h , J o n a t h a n , 86 Young, J o h n D., Kentucky contested election, 128-31