Chapter One Hundred and Thirty Three
Acts of Attainder - Reconstruction and the Lame Duck Congress
Part I
From “The Rivals – Lincoln and his Cabinet” by Amelia Doggett
Grosvenor 2008
“If the tribulations of the nation were not already severe enough after the death of Mrs. Lincoln and amidst the build up to Election Day another bolt struck the American System. On 2nd November 1864 Chief Justice of the Supreme Court Roger B. Taney died “
to great acclaim” in the words of one Radical Republican candidate (George Washington Julian). Of Taney, Charles Sumner would exclaim "
Now an emancipated country should make a bust to the author of the Dred Scott decision?" and "
If a man has done evil in his life, he must not be complimented in marble." He proposed that a vacant spot, not a bust of Taney, be left in the courtroom "
to speak in warning to all who would betray liberty!"…
One cannot imagine the weight on Lincoln’s shoulders during these days of victory and of mourning. “
The President had no intention of allowing time to promote politicking for the Chiefship [sic]…
He made more snap decisions in those last days of 1864 than he had in the preceding three years of his first term” (John Hay). Two days after the death of Taney, the President summoned Justice David Davis, his former campaign manager from the 1860 Republican National Convention, and “
informed” (Davis) him that he would be accepting the job of Chief Justice. “
Though I did not want it, no man could refuse this President, not then. A man at the height of victory, visibly in the depth of despair…”.
The Vice-President Elect, Joseph Holt, would suggest Davis’ replacement on the Court. Assistant Judge Advocate General William McKee Dunn of Indiana, Holt’s former deputy and also a former Republican Congressman, a suggestion which the President swiftly acted upon…
Supreme Court Justice David Davis and Associate Justice William McKee Dunn
A number of scholars of the Theory of Abandonment and of the History of Reconstruction (“the Kearny Ring” as they are known in academic circles), though still a minority, identify Dunn as one of the leading instigators of the theory, based mainly on his famous train journey to Washington with Philip Kearny…
The reorganization of the Court was not the only major change to the upper echelons of the United States legal system in the dying days of 1864. A victorious Lincoln had no more patience for an Attorney General who still thought of the world in terms of 1859. Edward Bates was asked for his resignation and thanked for his service. The Missourian would be replaced by another loyal southerner: James Speed of Kentucky. As an early leader of the Unionist Louisville Home Guard, he became what many people called “
the respectable face of Bull Nelson’s Kentucky Kingship” (Lovell Rousseau, himself an ally of Nelson). As leader of the Republicans in the Kentucky Senate he proposed a Confiscation Bill which would stand as a basis for his advice to the President on the Confiscation Bill of 1865…”
Attorney General James Speed
From “The Lame Duck Legislators – The Last Days of the 38th Congress” by Chelsea Henderson
Georgetown 2001
“The President had no intention of waiting for his Second Inauguration to begin the task of Reconstruction. The Confederacy was on the verge of total collapse. It was apparent to all the end of the war was imminent. If the President acted now he might yet achieve peace and Reconstruction on his own terms. If he waited for the seating of the 39th Congress his views would be challenged. There was potentially a veto-proof majority of Radical Republicans in the House and in the aftermath of the assassination of Mary Todd Lincoln, a new Senate might take a hard line as well…
Some of the President’s former generosity of spirit towards the Confederates was gone. He had come to know, at first hand, that there were many rebels who could not be reasoned with; who could not accept the new Union that must now be established between races; who could not be forgiven and restored to the bosom of the nation…
Ironically the task of managing the Lame Duck Congress in establishing the foundations of Reconstruction would fall to a team of two Southerners, Vice President Joseph Holt and Attorney General James Speed...
Vice President Joseph Holt had a much better working relationship with President Lincoln than his predecessor.
Throughout the tumult of September and October, Holt had spent his every spare moment (which were few enough in the midst of receiving delegations from every state in support of his candidacy for the Vice Presidency) in sketching out the machinery that would put into effect the theory of Abandonment and Exile that would define Reconstruction. The President still believed that the secession of states was unconstitutional, but of the secession of persons he had become a lasting convert…
Joseph Holt saw six keys steps in the casting of Reconstruction, the first three of which the President felt must be accomplished during the lifetime of the 38th Congress:
1. The Proclamation of Abandonment
2. A Confiscation Act
3. A new Naturalization Act
4. An Undesirable Aliens Act
5. A Civil Rights Act
6. The 14th Amendment to the United States Constitution
Before March 4th 1865 the President would have to set out the theory of Abandonment of citizenship of the United States by the Confederate Rebels. Upon the acceptance of that logic the rest of Lincoln’s Reconstruction agenda rested…
The Confiscation Act would deal with the confiscation of the property of prominent and now stateless rebels, while the new Naturalization Act would document the process by which former Confederates could be readmitted to the family of United States citizens. The Undesirable Aliens Act would confirm the sentence of exile upon former rebels who would not be accepted as United States citizens and could not be tolerated to live within its hallowed borders. The Civil Rights Act was necessary to establish the rights of the freedmen and the 14th Amendment was necessary to ensure the constitutionality of the whole…
It was Lord Lyons, the British Envoy to the United States, who observed that the President’s program was no more than a series of “
Acts of Attainder” more reminiscent of Great Britain during the Jacobite Rebellions. It was an observation taken up by one Representative-Elect who was horrified by the rumors circulating in Washington. Liberal Republican Henry Jarvis Raymond cried out to any and all that would listen that any law depriving a citizen of his rights of citizenship, particularly without trial, was indeed an Act of Attainder and as such expressly forbidden by the Constitution, Article I, Sections 9 and 10…”
From “The Rivals – Lincoln and his Cabinet” by Amelia Doggett
Grosvenor 2008
“There was a great weight placed upon the 38th Congress as the President prepared to celebrate his re-election by making his second great proclamation, his Proclamation of Abandonment. He was to give them "
two months to remake a nation”..."