This essay was originally published in DICTA, the official publication of the Knoxville Bar Association, Vol. 44, Iss. 11 (Dec. 2017)
Okay, so you’ve won the Civil War. You occupy the former seceded states. Now, what do you do with them?
That, in a nutshell, was the issue that faced President Lincoln and the Republican-controlled Congress as U.S. troops occupied ever-increasing swaths of Confederate territory. The occupied South’s economy was destroyed, its governments absent or nonfunctional. There were many opinions – some of them rather harsh — on the proper treatment of the Southern states, but Lincoln wanted to “let ’em up easy.” On the other hand, he didn’t want to turn over Southern governance to unrepentant Confederates. He came up with something he called the “ten percent plan.” If ten percent of a given state’s eligible voters in the 1860 election (the last one prior to the Secession Crisis) were now ready to affirm their loyalty and accept emancipation, the state would be on the path to redemption.
Lincoln came up with an amnesty oath in 1863:
I, ___ __ ___ , do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified or held void by Congress, or by the decision of the Supreme Court; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the Supreme Court. So help me God.
But Lincoln’s oath was not enough for Andrew Johnson, the military governor of Tennessee, one of the first states to be occupied. Johnson composed his own oath, which went significantly further, requiring affiants to “ardently desire suppression of the present insurrection and rebellion,” and to promise “that I will hereafter aid and assist all loyal people in the accomplishment of all these results.” This was too much for many Tennesseans, who refereed to Johnson’s formulation as the “damnesty oath.”
Even this more stringent oath did not long satisfy Johnson, who later imposed a requirement, just prior to the 1864 election, that voters “cordially oppose all armistices or negotiations for peace with rebels in arms.” This was a direct repudiation of a major part of the campaign platform of George B. McClellan, the Democratic nominee. Think about that: before a Tennessean could vote, he had to effectively reject one of the presidential candidates. Loyalty had morphed into conformity. The morphing continued when a convention in early 1865 proposed a new state constitution. To vote in the subsequent ratification process, a Tennessean had to swear that he was an “enemy of the so-called Confederate States,” and that he did “sincerely rejoice in the triumph of the armies and navies of the United States and in the defeat and overthrow of the armies, navies, and all armed combinations in the interest of the so called Confederate States.”
While “rejoicing” sounds more appropriate to an old-time church service than to a voter registration certificate, such were the times, and such was the need to ensure that, as Johnson insisted, “[t]reason must be made odious, [and] traitors must be punished and impoverished.”
All of this fascinating history was the subject of the 2017 McMurtry Lecture at Lincoln Memorial University’s Duncan School of Law, an annual event which, this year, featured prominent attorney and historian Sam D. Elliott of Chattanooga. Sam describes it all much better than I can, and you can catch the gist of his presentation in a recent episode of my public radio show and podcast.
As Sam notes, the process of readmitting Tennessee to the Union was rather “irregular,” but in the words of Andrew Johnson,
Now you cannot get back in the present chaos and disorder without some irregularity… Talk of violating constitutional rules. Why how much law and constitution have you got now? In the absence of both, if you act irregularly, who dare say aught against it? Where is your law now? Lincoln may be charged with irregularity, but if he saves the Government by it who can find fault?
I guess that sometimes, when there is no law, you have to make up your own.