Today’s post comes from Christine Blackerby, Outreach Specialist in the Center for Legislative Archives at the National Archives in Washington, DC.
Could a person who had sworn an oath to the Confederacy later loyally serve the United States?
One hundred and fifty years ago, the U.S. Senate wrestled with this question for the first time.
When states from the defeated Confederacy were readmitted to the Union, some of those elected to Congress were the same people who had served the Confederate government or the governments of the seceded states. Citizens and government officials alike asked how these men could be trusted to serve the Union that they had so recently fought against.
One tool for judging the loyalty of potential office holders was the Ironclad Oath of 1862, a law passed by Congress during the Civil War to deter sabotage by Confederate sympathizers. The Ironclad Oath required that any federal officeholder (members of Congress were added in 1864) swear that he had never served a government in hostility to the United States.
The Ironclad Oath appeared to draw a firm line in the sand, but that firmness was tested immediately after the first Confederate state—Tennessee—was readmitted to the Union.
On July 26, 1866, David Trotter Patterson appeared in the Senate and presented his credentials—the signed and certified document that served as evidence that the state of Tennessee elected him to Congress.
Traditionally, credentials are immediately accepted by the Secretary of the Senate, the person takes the oath of office, and the new Senator is admitted as a member of Congress.
But when Patterson appeared, several Senators expressed concern that Patterson could not honestly take the Ironclad Oath because he had served as a judge under Tennessee’s Confederate government, and therefore his credentials should not be accepted.
The credentials were referred to the Judiciary Committee with instructions to inquire into Patterson’s qualifications for holding office. Patterson was turned away while the committee investigated.
A day later, the Judiciary Committee issued Senate Report #139. The report declared that Patterson was qualified to hold the office of Senator, as he had been a staunch Union supporter during the Civil War and had remained loyal to the nation throughout his life.
After first taking an oath in 1854 to be a circuit judge in Tennessee, David Patterson had remained in office for the appointed eight years, even though he did not support secession in 1861.
When his term expired in 1862, he was reluctantly persuaded by other Union supporters in Tennessee to run for reelection, as the position would enable him to continue to protect Union loyalists from civil and military repression.
After winning the seat, Patterson took the oath to uphold the Constitution of Tennessee and of the Confederate States. However, he continued to support the Union.
The report recommended that the Senate pass a resolution stating that Patterson was qualified to hold a seat as a Senator from Tennessee.
The resolution brought about much debate in the Senate.
Senator Daniel Clark (R-NH) said, “There is no question, I think, about the facts . . . [that Patterson] was such a Union man as to put some of us to shame.”
Clark wanted to admit Patterson to the Senate immediately because “the object of the oath is to prevent rebels and secessionists from coming into the Senate, not to exclude Union men like the Senator-elect from Tennessee.”
Senator Lyman Trumbull (D-IL), chairman of the Judiciary Committee, disagreed with the report.
While he admitted that Patterson was indeed a Union loyalist during the rebellion, Trumbull argued that the former Confederate judge would have to violate the Ironclad Oath in order to take office.
Senator Trumbull and many others felt that receiving Patterson into the Senate would render the law null—a dangerous action in the immediate aftermath of the Civil War. Senator Jacob M. Howard (R-MI) agreed, saying, “We made the law. Let us not be the first to break it.”
One proposed solution was to pass Senate Resolution 144, which would have allowed Patterson to simply skip the part of the oath about never having “exercise[d] the functions of any office whatever; under any authority or pretended authority in hostility to the United States.”
However, this effort failed.
Representative Horace Maynard (Unconditional Unionist-TN) judged that Patterson could take the Ironclad Oath without reservation. Maynard said, “The construction that I have always given to this part of the oath…is this: not that an office was held, but that it was held ‘in hostility to the United States,’ constitutes the disqualification…. Judge Patterson’s holding the office was not done ‘in hostility to the government of the United States,’ but was an act of known, understood, and recognized hostility to the southern confederacy. So, then, it seems to me that the oath could have been taken with a safe conscience.”
With this idea in mind, the Senate relied on its Article I, Section 5 constitutional powers—“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” The Senate therefore moved to consider a simple resolution that expressed the view of the Senate that Patterson’s loyalty was not in question. The simple resolution stated:
Resolved, That the Hon. David T. Patterson, upon taking the oaths required by the Constitution and laws, be admitted to a seat in the Senate of the United States.
After a little more debate, the Senate voted to adopt the simple resolution, 21-11.
The next day, July 28, 1866, David Patterson took the oath of office, including the full wording of the Ironclad Oath, and took his seat in the Senate.
Patterson was just the first of many from the former Confederacy to be elected to Congress. While the evidence of Patterson’s loyalty to the Union was abundant and uncontested, other members-elect had less clear histories of loyalty.
For two years, Congress debated the loyalty and qualifications of many former Confederate members-elect. It made individual exceptions from saying the full oath for some of them via joint resolutions like the one that failed to pass for David Patterson.
In 1868, Congress passed a public law prescribing an alternative oath for “any person who has participated in the late rebellion, and from whom all legal disabilities arising there from have been removed by act of Congress.”
Northerners immediately pointed to the new law’s unfair double standard that required loyal Unionists to take the Ironclad Oath’s harsh first section while permitting ex-Confederates to ignore it.
In 1884, the first section of the Ironclad Oath was quietly repealed, leaving the affirmation of constitutional allegiance that is still used today.