Civil War in the Senate

No word was more hotly contested during the Civil War than “loyalty.” Republicans persistently accused Democrats of disloyalty and treason for opposing Republican war measures, and no Democrat was immune from accusations of disloyalty, even at the highest levels of the government.

Senator Garrett Davis, Democrat of Kentucky
Library of Congress

But Democrats gave as good as they got, accusing the Republicans of disloyalty to the Constitution. On Jan. 5, 1864, Senator Garrett Davis of Kentucky introduced a series of resolutions denouncing the Lincoln administration’s allegedly unconstitutional actions. Taking up five full pages in the Senate Journal, the resolutions accused Lincoln of destroying the constitutional rights of both Northern and Southern civilians, and claimed that the president sought to “subjugate” and “revolutionize” the South by abolishing slavery. Davis called on all conservative Americans, North and South, to turn against their war leaders and elect delegates for a national convention that would negotiate an end to the war.

Davis, an antebellum Whig who had originally been a firm supporter of the war, had become disillusioned by the changing nature of the conflict. To him, the war was no longer about Union, but conquest, abolition and centralization.

Many observers were struck by the bitter language of Davis’s resolutions. One fellow senator claimed that Davis’s criticisms of Lincoln were harsher than Thomas Jefferson’s grievances against King George in the Declaration of Independence. On Jan. 8, Senator Henry Wilson of Massachusetts introduced a resolution calling for Davis’s expulsion from the Senate. Citing one of Davis’s resolutions “in which, among other things, it is declared that ‘the people [of the] North ought to revolt against their war leaders and take this great matter into their own hands,’” Wilson accused Davis of seeking “to incite the people of the United States to revolt against the President … and to take the prosecution of the war into their own hands.”

Library of CongressSenator Garrett Davis, Democrat of KentuckDavis immediately protested that this was “a garbled version of my resolution,” and that Wilson’s “jaundiced, narrow mind” made him “wholly incompetent to give a proper rendering of those resolutions.” (Indeed, Wilson had blatantly misrepresented them. By omitting any mention of the South, or of Davis’s call for a national peace convention, Wilson portrayed Davis as wanting to inflame civil war and bloodshed in the North, when in reality, Davis hoped to end hostilities by uniting the peace elements in both sections.)

The nature and purpose of free speech became a central part of the debate over Davis’s resolutions. Davis lamented that “if any man has the audacity to question” the measures of the Republican majority, he “is branded and denounced by them as disloyal, as a traitor.” But the minority party possessed a right — if not a duty, he said — to criticize the majority.

Amazingly, several Republicans came to Davis’s defense. William Pitt Fessenden of Maine argued that Davis’s words had been taken out of context in order to distort their meaning. It would be better to debate the issues, Fessenden declared, and let the voters decide which view was best. Similarly, John P. Hale of New Hampshire thought that punishing Davis would be a sign of weakness, and that the resolutions should be answered, not censored.

Even Lazarus W. Powell, a Kentucky Democrat whom Davis, during his pro-war days, had tried to have expelled for disloyalty in 1862, praised his former antagonist, arguing that Davis’s resolutions against Lincoln were prompted by “love of country.” Any senator “who believes there has been maladministration of the Government” but “has not the courage or manhood” to “sound the alarm … is an unworthy representative of a free people.”

It quickly became apparent that two-thirds of the Senate would not vote to expel Davis, so the Radical Republican Jacob Howard of Michigan proposed instead to censure him. “Like other rights,” Howard declared, free speech “is to be used in subordination to the public welfare — used to support and not to destroy the Government; and he is little better than a madman who claims to use it for the very purpose of breaking in pieces the shield by which it is protected.” Senator Wilson concurred, arguing that freedom of speech could be limited “when those words and acts give aid and comfort to enemies who are seeking to blot it from the muster-roll of nations.”

Howard’s proposition struck many senators as even more insidious than expulsion, since censure could be attained by a simple majority vote. Either censure or expulsion, explained the Republican Henry S. Lane of Indiana, would do more to silence free speech in the Senate than the caning of Senator Charles Sumner of Massachusetts had in 1856. Realizing that this effort had little momentum, Wilson withdrew his resolution on Jan. 28.

During the debate over Davis’s expulsion, Senate Republicans devised a different way to rid their body of another vocal Copperhead. In March 1863, Sumner had introduced a resolution to require that all senators swear an ironclad test oath professing both past and future loyalty to the United States. Democrats opposed this new requirement, claiming that Congress could not require a new oath of members who had already been sworn into office, that it went beyond the oath required by the Constitution, and that it was retrospective rather than promissory. After a short debate, Senate Republicans voluntarily subscribed to the oath, and most Democrats reluctantly followed suit. By December 1863 all but two senators had voluntarily taken it.

But in January 1864, Sumner’s resolution resurfaced in the Senate, with Republicans claiming that it was necessary “to keep from this body traitors in arms against the Government.” Both sides recognized that the resolution was aimed at James A. Bayard Jr., a Peace Democrat from Delaware. In response, Bayard claimed that his “past life and conduct ought to be a sufficient answer” to any charges against his patriotism. If he did not believe it was unconstitutional to require the ironclad test oath of congressmen, he declared, he would take it “without a moment’s hesitation as readily as any member of this body.”

On Jan. 25, the Republicans pressed Sumner’s resolution to a vote, and it passed over strenuous Democratic objections. The next day Bayard took the oath and then immediately resigned his seat.

In his final act as a senator during the Civil War, Bayard delivered a speech explaining his actions. He recounted how he had favored peaceable separation before the firing began. The progress of the war only confirmed his initial intuition. The North was now waging a war of “subjugation,” and the liberties of Northerners had been sacrificed at its altar. Elections in his home state had been controlled by the military, and citizens of Delaware were daily arrested without warrants, known accusers, charges, hearings or trials.

But very few, if any, of his colleagues shared his concerns. “Standing therefore almost alone in this body, I have lost the hope that I can longer be of service to my country or my State,” Bayard declared. “With a firm conviction that your decision inflicts a vital wound upon free representative government, I cannot, by continuing to hold the seat I now occupy under it, give my personal assent and sanction to its propriety. To do so, I must forfeit my own self-respect and sacrifice my clear convictions of duty for the sake merely of retaining a high trust and station with its emoluments. That will I never do.”

While Bayard professed indignation at the prospect of having to take the ironclad test oath, in truth, it is a wonder that he could have taken it conscientiously. His private correspondence reveals a man who wanted the South to win the war (he called it an “invasion of another people” as early as September 1861), and who privately expressed sorrow when the rebels suffered military defeats. “I feel very sad to-day for I believe there is truth in the report that New Orleans has fallen, and I think Savannah will follow,” he wrote in April 1862. “Yet all this will not end but only prolong this wretched war, & its devastation.” Throughout the war Bayard somehow held on to the increasingly untenable position that only “peaceful separation” would bring the war to a close.

Radical Republicans in the Senate had long wished to rid themselves of Bayard, but he had never committed a crime or public indiscretion to justify it. Bayard’s refusal to take the oath, however, opened a window of opportunity that proved much easier than expulsion. What they could not accomplish with Garrett Davis, whose “disloyal” speech was protected by the Constitution, the radicals could do with James A. Bayard. Through a simple change in Senate rules, the Republicans compelled a conscientious rebel sympathizer to resign his seat.

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Jonathan W. White is an assistant professor of American studies at Christopher Newport University. He is the author of “Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman” and “Emancipation, the Union Army, and the Reelection of Abraham Lincoln.” He is also writing a book called “Midnight in America: A History of Sleep and Dreams during the Civil War.”