«Реконструкция и конституция, 1866–1876»

The Senate resolution was sent into the House on the

Rejection of the

Senate's draft

in the House.

31st of May, and was there lost on June 15th, having received a large majority, indeed, in its favor, but not a two-thirds majority.

Foreseeing the failure of the resolution at that juncture, Mr. J. M. Ashley, of Ohio, voted against the measure, although a stanch friend of

Reconsideration of

the Senate's measure

in the House, and

its final passage.

it. His purpose was of course to be able to move, at some future and more propitious time, a reconsideration of the subject. He did not, however, feel that that time had arrived until after the election and the military victories of the autumn of 1864 had manifested the temper of the voters on the question of abolition and demonstrated the power of the Union to carry such a measure into execution. On the 31st of January, 1865, Mr. Ashley moved a reconsideration of the Senate resolution lost in the House on the 15th of the preceding June. Reconsideration was immediately voted, and the Senate resolution was then carried by the requisite two-thirds majority.

The proposed amendment was then sent to the President, who signed it, February 1st, 1865. Whereupon the Senate immediately passed another resolution, declaring that it was through an inadvertency that the measure had been sent to the President for his signature, that asking the President of the United States to sign a proposed constitutional amendment was an error, was without precedent in the practice of the Government, and that the President's approval should not be communicated to the House. A concurrent resolution was then passed by the two Houses authorizing the President to submit the proposed article of amendment to the "States" for ratification. The Secretary of State immediately sent it to the legislatures of all the "States" which could be reached by him, and during the summer and autumn to the legislatures of all the "States;" and the new legislature of Tennessee ratified it on the 5th of April, 1865, that is, more than a week before Lincoln's death.

Such was the condition of things when the assassin's bullet ended the life of the great and good President and brought the Vice-President, Mr. Johnson, into the office.

ГЛАВА III

PRESIDENT JOHNSON'S PLAN OF RECONSTRUCTION AND HIS PROCEEDINGS IN REALIZATION OF IT

The Character of Mr. Johnson—The Radical Nature of Johnson's First Views on Reconstruction—The Retention of Lincoln's Cabinet by Mr. Johnson and the Modification of Johnson's Views by Mr. Seward's Arguments—Johnson's Amnesty Proclamation of May 29th, 1865—The Excepted Classes—The Effect of these Exceptions—The President's Plan—The Realization of it—The Administering of the Oath—Reconstruction in North Carolina—The Identity of Johnson's Plan with that of Lincoln—Reconstruction in Mississippi—Reconstruction in Georgia—Reconstruction in Alabama, South Carolina and Florida—Reconstruction in Virginia—Reconstruction in Louisiana, Arkansas and Tennessee—The Constitutional Conventions of 1865—The Form of the Work Done in these Conventions, and its Substance—The Erection of "State" Governments and the Election of Members of Congress—The Orders of the President Putting the Civil Government of the United States into Operation Everywhere—The President's First Annual Message.

Mr. Johnson was a man who rose from very low estate through his own efforts. He was a man of considerable intellectual power and of great

The character

of Mr. Johnson.

will power. He was somewhat vain of his success and somewhat piqued by the social neglect which he had suffered at the hands of the "old families." He was intensely loyal to the Union, and could regard secession and rebellion only as treason. Having suffered so much for his loyalty, he was somewhat moved by considerations of revenge. He was profoundly stirred by the assassination of Lincoln, and apparently believed it to have been planned by those high in authority in the Confederacy; and he was possessed with an intense desire to re-establish the Union on an enduring foundation.

With such a history behind him, and such a disposition impelling him, it is not to be wondered at that his policy in regard to Reconstruction

The radical

nature of Johnson's

first views on

Reconstruction.

should have been more stringent than that of Mr. Lincoln. In fact it was feared, even by the more radical Republicans, such, for instance, as Mr. Wade, that he would be bloody minded in the treatment of the rebel chiefs. He had, before his accession to the Presidency, declared so often, and so vehemently, that "traitors should be arrested, tried, convicted and hanged," that most men were expecting the strict application of the criminal law to the Confederate leaders.

Mr. Johnson retained Lincoln's Cabinet, and among them the conciliatory and persuasive Seward, who, in about six weeks from the night of the

The retention of

Lincoln's Cabinet

by Mr. Johnson, and

the modification

of Johnson's views

by Mr. Seward's

arguments.

assassination, at which time he himself was seriously wounded, returned to his work in the State Department. There is no doubt that it was the influence of Seward which modified the views and purposes of Mr. Johnson. The compliant spirit manifested at this time by the Confederate chiefs helped strongly in the same direction. By the 1st of June, Seward had won Johnson completely for his plan of a rapid and forgiving reconstruction by the Executive. Congress was not in session, and the President was not inclined to call an extra session. The late rebel chieftains were pressing for the political rehabilitation of their section, and the President now fully believed that he had the power to proceed with the problem of Reconstruction, and was inclined to do so.

On the 29th of May, he issued his proclamation of amnesty and pardon to all persons who, having engaged in rebellion, had failed to take the

Johnson's Amnesty

Proclamation of

May 29, 1865.

benefits of Mr. Lincoln's proclamations of December 8, 1863, and March 26, 1864. To all such persons Mr. Johnson offered his pardon upon their taking an oath of the following tenor: "I —— do solemnly swear (or affirm) in the 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 laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God."

He, however, excepted the following classes of persons from the benefits of the offer: 1st. Those who held or had held, under the

The excepted

classes.

pretended Confederate Government, civil or diplomatic office or agency, or military office above the rank of colonel in the army and lieutenant in the navy, or military or naval office of any grade, if educated by the United States Government in the Military Academy at West Point or the United States Naval Academy; and all those who held, or had held, the pretended office of Governor of a "State" in insurrection against the United States;

2d. Those who had left seats in the Congress of the United States or judicial stations under the United States to aid in the rebellion against the United States, and those who had resigned or tendered resignations of their commissions in the army or navy of the United States to evade duty in resisting the rebellion;

3d. Those who had, in any way, treated persons found in the service of the United States, in any capacity, otherwise than lawfully as prisoners of war;

4th. Those who had been engaged in destroying the commerce of the United States on the high seas, or upon the lakes and rivers separating the British Provinces from the United States, or in making raids from Canada into the United States;

5th. Those who were, or had been, absent from the United States, or had left their homes within the jurisdiction of the United States, and passed beyond the military lines of the United States into the pretended Confederate States, for the purpose of aiding the rebellion;

6th. Those who, at the time they might seek to obtain the benefits of the proclamation by taking the oath, were prisoners of war, or under civil or criminal arrest, and those who had taken the oath of allegiance to the United States since December 8, 1863, and had failed to keep it;

And, finally, those who had voluntarily participated in any way in the rebellion and were the owners of taxable property to the value of more than twenty thousand dollars.

These exceptions would have shut out almost all of the leading men of most of the "States" that passed secession ordinances from the benefits

The effect

of these

exceptions.

of the proclamation, except for the subsequent provision in the proclamation, which ordained that special application might be made to the President for pardon by any person belonging to the excepted classes, and held out the promise that such clemency would be as liberally extended as might be consistent with the facts of the case and the peace and dignity of the United States.

Briefly, the President proposed to pardon the rebel leaders, upon special personal application, as an act of high executive grace, and to

The President's plan

in a sentence.

amnesty every one else in a body; and upon the basis of their re-established loyalty to use the old electorate of the South in reconstruction. How he succeeded we will now proceed to relate.

In the first place, the machinery for administering the cleansing oath was made very simple and accessible. Any commissioned officer, civil,

The realization of it.

The administering

of the oath.

military or naval, of the United States, and any officer, civil or military, of a loyal "State" qualified by the laws of the "State" to administer oaths, was declared by the President, through his Secretary of State, to be competent to administer this oath of loyalty, a copy of which should be given to the person taking it as his certificate of restored citizenship, and another copy sent to the State Department at Washington to be there deposited and kept in the archives of the Government.

In the second place, and by a second proclamation, issued on the same day, May 29th, the President appointed a Provisional Governor for North

Reconstruction in

North Carolina.

Carolina, and authorized and commanded him to cause the election of delegates to, and their assembly in, a constitutional convention of the "State" for the reconstruction of the "State," and its restoration to its constitutional relations to the United States. The electorate to be employed by the Provisional Governor should be those persons who were qualified to vote by the laws of North Carolina in force immediately before the 20th of May, 1861, and had taken the oath prescribed in the first proclamation.

This second proclamation also commanded the heads of the departments of the United States Government to put the laws of the United States into operation in North Carolina, the United States judges to open the United States courts and proceed to business, and the military officers in the district to aid the Provisional

Governor in carrying the duties assigned to him into effect, and to abstain from hindering, impeding, or discouraging, in any manner, the organization of a "State" government as authorized by the proclamation.

It will thus be seen that Mr. Johnson's plan of Reconstruction was in substance the same as that of Mr. Lincoln. It rested upon the theory of

The identity

of Johnson's

plan with that

of Lincoln.

the indestructibility of the "States," their perdurance as "States" throughout the period of rebellion, the commission of treason and rebellion by combinations of private persons, the right of the Executive to withdraw his military powers and put his civil powers in operation, whenever, in his judgment, the circumstances would warrant him in so doing, and his authority to recognize the old electorates of the "States" in which rebellion had existed as the respective constituent bodies of the "States," upon such terms and under such limitations as he might prescribe. He did not lay down any rule as to the numerical proportion which the modified electorates should bear to the old, in order to make their acts legitimate, as Mr. Lincoln did; and he did declare in his second proclamation that the North Carolina convention, when convened, or the legislature that might be thereafter assembled, should prescribe the qualification of electors, and the eligibility of persons to hold office under the constitution and laws of the "State," which Mr. Lincoln did not do in his proclamation. But there is no doubt that Mr. Lincoln would have indorsed this proposition. He could not have avoided it, while holding the theory that North Carolina was a "State" simply engaged in amending its constitution, the theory which his own proclamation apparently set up. In a word Johnson's policy and acts in reconstructing the "States" in which secession ordinances had been passed, and rebellion committed, were but a continuation of those of Mr. Lincoln. If Lincoln was right so was Johnson, and vice versa.

On the 13th of June, the President issued a proclamation of like tenor and containing similar orders for putting the laws of the United States

Reconstruction

in Mississippi,

Georgia, Alabama,

South Carolina

and Florida.

into operation, and for putting similar machinery in motion for reconstruction, in Mississippi. He appointed William L. Sharkey Provisional Governor therein. On the 17th of June, similar steps were taken for the reconstruction of Georgia, with James Johnson as the Provisional Governor; on the 21st of June for the reconstruction of Alabama, with Lewis E. Parsons as Provisional Governor; on the 30th of June for the reconstruction of South Carolina, with Benjamin F. Perry as Provisional Governor; and on the 13th of July for the reconstruction of Florida, with William Marvin as Provisional Governor.

Already on May 9th, twenty days before the issue of his proclamation of amnesty, the President had issued an executive order putting the laws

Reconstruction

in Virginia.

of the United States in operation in Virginia, and guaranteeing the support of the United States Government to Governor Francis H. Pierpont in all lawful measures for the extension and administration of the "State" government throughout the geographical limits of Virginia. This meant, of course, that the United States Government recognized the shadowy loyal "State" government, which had kept up at least a show of existence throughout the rebellion, as the true "State" government of Virginia, and that Virginia did not need reconstruction, but only the extension of the authority of this government throughout her territorial limits. This was, also, a simple continuation of Mr. Lincoln's policy, as we well know.

Of course Mr. Johnson recognized the reconstruction of Louisiana,

Reconstruction

in Louisiana,

Arkansas and

Tennessee.

Arkansas and Tennessee as effected by Mr. Lincoln; so that by mid-summer of 1865 the reconstruction of all the "States" which had passed secession ordinances, except only Texas, had been completed, or had been put in course of completion.

During the summer, autumn and early winter of 1865, the Provisional Governors of Mississippi, Alabama, South Carolina, North Carolina,

The constitutional

conventions of 1865.

Georgia, and Florida ordered elections for the choosing of delegates to constitutional conventions, upon the basis of the old suffrage laws of the respective "States" once answering to these names, modified by the requirements of the Presidential pardon, received after taking the oath of allegiance; and these elections were held and these conventions assembled.

These bodies chose to do their work in the form of amendments to the old constitutions of the "States," whose constituent powers they

The form of the

work done in these

conventions, and

its substance.

assumed to hold, rather than in the form of new constitutions. Before the meeting of Congress on the first Monday of December, they had all passed ordinances, either repealing the secession ordinances of their respective "States," or pronouncing them null and void; had all voted amendments to the constitutions of their respective "States" abolishing slavery; and all, except Mississippi and South Carolina, had passed ordinances repudiating the debt incurred by their respective "States" in aid of rebellion against the United States.

Before the meeting of Congress also, elections of the members of the respective "State" legislatures and of "State" officers, and of the

The erection of

"State" governments

and the election of

Members of Congress.

members of the House of Representatives in Congress, had been held by the Provisional Governors, under the direction of the respective conventions. And, finally, before the assembly of Congress, these Legislatures had, with the exception of that of Florida, met, organized, and elected United States Senators, and, with the exception of those of Florida and Mississippi, had adopted the Thirteenth Amendment to the Constitution. The legislature of Florida, not having met and organized, had not at that date been able to consider the Amendment. It met on December 18th and elected United States Senators, and adopted the Thirteenth Amendment on the 28th. The legislature of Mississippi, on the other hand, rejected the Thirteenth Amendment on the 27th of November.

During the same period, the President had by his several proclamations and orders declared the cessation of armed resistance, the restoration

The orders of the

President putting the

civil Government

of the United States

into operation

everywhere.

of intercourse throughout the country, and the raising of the blockade and the opening of the ports, and had put the different branches of the civil Government of the United States into operation in all the "States" which had been the scene of the recent rebellion. He had not, however, restored the privilege of the writ of Habeas Corpus in these regions or in the District of Columbia, and he reserved the right to have recourse to military control therein in case of necessity. The Governors of South Carolina, Georgia, Mississippi and Florida under the Confederacy had, in the spring of 1865, assumed to summon the legislatures, chosen by these "States" while members, or pretended members, of the Confederacy, to meet together for reconstruction purposes. The President had, through his military officials, ignored and prevented all such movements. No farther resistance to his plan of Reconstruction had been attempted, but he saw plainly that, without the United States military power to sustain the new "State" governments, there might be.

This was the situation when Congress met on the first Monday of December, and received President Johnson's first annual Message. This

The President's

first annual

Message.

document contained a disquisition upon the political system of the United States, as "an indissoluble union of indestructible States," with the natural conclusion that by attempting secession, the "States" impaired, but did not extinguish, their vitality, suspended, but did not destroy, their functions. It then proceeded with a narration of the facts above stated, in which the President sought to establish, upon the basis of his power to pardon and withdraw military rule, and to guarantee a republican form of government to every "State," his authority to reconstruct "State" government, or at any rate to permit the pardoned citizens to do so under his direction.

Finally, this paper contained the official notice to Congress that the President had admitted the reconstructed "States"—and that would mean all that had passed the secession ordinance, except perhaps Texas, whose convention did not assemble until March of 1866—to participate in amending the Constitution of the United States. The President concluded his narration and argumentation upon this all-important subject in these words: "The amendment to the Constitution being adopted, it will remain for the States whose powers have been so long in abeyance to resume their places in the two branches of the National Legislature, and thereby complete the work of restoration. Here it is for you, fellow citizens of the Senate, and for you, fellow citizens of the House of Representatives, to judge, each of you for yourselves, of the elections, returns and qualifications of your own members."

It is entirely evident from all this that the President denied the power of the Houses of Congress, either separately or jointly, to prevent the Senators and Representatives from the reconstructed "States" from taking their seats upon any other grounds than defects in the election and return, or in the personal qualifications, of the particular persons under consideration.

ГЛАВА IV

THE CONGRESSIONAL PLAN OF RECONSTRUCTION

The Stevens Resolution—Legislation of the Reconstructed "States" Concerning the Status of the Freedmen, and the Freedmen's Bureau—Vagrancy, Apprenticeship, and Civil Rights in the Reconstructed "States"—The View Taken of this Legislation by the Republicans—The Ratification of the Thirteenth Amendment to the Constitution—The Demand of the Senators- and Representatives-elect from the Reconstructed "States" to be Admitted to Seats in Congress—The Joint Committee of the Two Houses of Congress on Reconstruction—Thaddeus Stevens's Ideas on Reconstruction—Mr. Shellabarger's Theory of Reconstruction—Mr. Sumner's Theory of Reconstruction.

So soon as the House of Representatives had elected its Speaker, Mr. Colfax, and other officers, and before the reception of the President's

The Stevens

resolution.

Message, Mr. Thaddeus Stevens presented a resolution which proposed the selection of a joint committee of the House and Senate to inquire into the condition of the "States," which formed the so-called Confederate States, and to report by bill or otherwise, whether, in the judgment of the Committee, these "States," or any of them, were entitled to be represented in either House of Congress, and which provided that "until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the so-called Confederate States." The House passed this resolution by an overwhelming majority; and then adjourned without allowing a motion by Mr. Niblack of Indiana, to the effect that "pending the question as to the admission of persons claiming to have been elected representatives to the present Congress from the States lately in rebellion, such persons be entitled to the privileges of the floor of the House," the usual privilege accorded contestants, to come to a vote.

The view of the House was thus manifest from the start. It was that Reconstruction could not be effected by the Executive Department of the

The view of the House

that Reconstruction

could not be effected

by the Executive.

Government, but was a problem for Congress, and that this was a matter entirely separate from the power of each House to judge of the elections, returns and qualifications of its members, a matter to be decided by the whole Congress prior to the consideration of the question of the elections, returns, and qualifications of the members of each House. In a word, it was the question of the admission, or the readmission, of "States" into the Union, or more correctly the question of the establishment or re-establishment of the "State" system of local government upon territory of the United States under the exclusive power of the central Government.

There is no question that in sound political science the House was entirely correct in its theory, and that the objection of the Senate to that part of the Stevens resolution which provided that no member should be received into either House from any of the so-called Confederate States until the report of the Committee on Reconstruction should have been finally acted on by Congress, as trenching upon the exclusive power of the Senate to judge of the elections, returns and qualifications of its members, rested upon a confounding of the

function of Congress to admit "States" into the Union with the power of

Passage of the Stevens

resolution as a

concurrent resolution.

each House to judge of the elections, returns and qualifications of those claiming to represent "States" or constituencies in "States" about whose position in the Union there was no question. The Senate finally swung into line, however, by passing this part of the House resolution as a concurrent resolution instead of as a joint resolution.

There were two other considerations which moved the Republicans in Congress to assume this attitude in regard to Reconstruction. One was

Legislation of the

reconstructed "States"

concerning the status

of the freedmen, and

the Freedmen's Bureau.

the legislation of the "States" reconstructed by the President concerning the status and the rights of the freedmen. On the 3d of March preceding, Congress had passed an act organizing a bureau in the War Department for the care of refugees and freedmen in the districts in rebellion or in the territory embraced in the operations of the army. This bureau was officered by a chief commissioner and assistant commissioners for each of the "States" declared to be in insurrection. These officers were authorized to take possession of the abandoned lands within these "States," and other lands belonging to the United States, and parcel them out to the loyal male refugees and freedmen, not more than forty acres to each, and protect them in the use and enjoyment of the same for the term of three years. They were also authorized to issue under the direction of the Secretary of War provisions, clothing and fuel to such loyal refugees and freedmen as were destitute.

There is no question that this was a most humane measure. It would have been a moral outrage for the Government of the United States to have taken the slaves away from the support and protection accorded

them by their masters, and to have thrown them upon their own resources

The administration

of the Freedmen's

Bureau.

without any means of sustenance during the transition into the new status. But there is also no question that this measure was so administered as to do the race for whose benefit it was intended almost as much harm as good. When the Government began to furnish them with food, clothes, fuel and shelter gratis, they, like the children that they were, conceived of this, to them, very agreeable state of things as something that was to last forever, as the New Jerusalem. They gathered about the depots of the Freedmen's Bureau and could not be induced to go away in search of work or livelihood. The belief became quite general that the Government intended to give every man forty acres of land and a mule, and otherwise to support him permanently. The danger was that the newly emancipated would quit work altogether and throw themselves entirely upon the charity of the United States Government. Many did do so, and formed thus a sort of privileged class throughout the whole South under the special protection of the Government of the United States.

When, now, the newly reorganized "States" came to assume jurisdiction over matters concerning the freedmen, they found themselves driven to

Vagrancy, apprenticeship

and civil rights in the

reconstructed "States."

some legislation to prevent the whole negro race from becoming paupers and criminals. It was in the face of such a situation that the legislatures of these "States" passed laws concerning apprenticeship, vagrancy and civil rights, which were looked upon at the North as attempts to re-enslave the newly emancipated, and served to bring the new "State" governments at the South into deep reproach.

It must be remembered, however, that at the time of the passage of the Stevens resolution by the House of Representatives, only two of Mr. Johnson's reconstructed "States" had passed any laws upon these

Examination of these

vagrancy acts, etc.

subjects. These two were Mississippi and South Carolina; and a close examination of the text of these enactments will hardly justify the interpretations placed upon them by the radical Republicans. The South Carolina Preliminary Act came first in the order of time. It provided that "all free negroes, mulattoes, and mestizos, all freedwomen, and all descendants through either sex of any of these persons, shall be known as persons of color, except that every such descendant, who may have of Caucasian blood seven-eighths, or more, shall be deemed a white person; that the statutes and regulations concerning slaves are now inapplicable to persons of color; and although such persons are not entitled to social or political equality with white persons, they shall have the right to acquire, own, and dispose of property, to make contracts, to enjoy the fruits of their labor, to sue and be sued, and to receive protection under the law in their persons and property"; and "that all rights and remedies respecting persons or property, and all duties and liabilities under laws civil and criminal, which apply to white persons, are extended to persons of color, subject to the modifications made by this act and the other acts hereinbefore mentioned."

The acts to which this one was preliminary were not passed until the latter half of December, and could not have served, except by prevision, as grounds for the Stevens resolution. Moreover there was little in this Act which was really calculated to arouse any pronounced hostility at the North. It evidently recognized the emancipation of the former slaves, and the prohibition of future slavery, as fixed facts, and provided for substantial equality in civil rights between persons of color and white persons. The discriminations which it referred to, rather than made, were those of a social and political nature, matters which to that time had been controlled, if controlled at all, wholly by the "States," except of course in those parts of the country in which "States" had not been erected.

The Mississippi acts were all passed in November. They were the acts which were before the view of Congress and the country in the beginning

The Mississippi Acts.

of December, 1865, and, with the exception of the South Carolina Preliminary Act just commented on, the only ones. They require, therefore, a somewhat fuller treatment. They consist of "An Act to regulate the relation of master and apprentice relative to Freedmen, Free Negroes, and Mulattoes, passed November 22, 1865"; the "Vagrant Act of November 24, 1865"; an "Act to Confer Civil Rights on Freedmen and for other purposes," passed November 25, 1865; a supplementary Act to this, passed November 29, 1865; and another supplementary Act, passed December 2, 1865.

The first Act provided that freedmen, free negroes, and mulattoes under the age of eighteen years, being orphans, or the children of parents who could not, or would not, support them, should be apprenticed by the clerk of the Probate court in the county where found to competent and suitable persons, and on such terms as the court should direct; under the restrictions, that the former owner of the minor should be selected by the court as the master or mistress if, in the judgment of the court, he or she were competent and suitable; that the terms fixed by the court should have the interest of the minor particularly in view; and that the apprentice should be bound by indenture, to run, in the case of males, until the completion of the twenty-first year, and, in the case of females, until the completion of the eighteenth year.

This Act further provided that in the management and control of apprentices, the master or mistress should "have power to inflict such moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law," but that in no case should "cruel or inhuman punishment be inflicted."

It furthermore provided, that in case of desertion by the apprentice, he might be apprehended and brought before a justice of the peace, who might remand him to his master or mistress, and might, on the refusal of the apprentice to return, commit him to jail, on failure to give bond, until the next term of the County court, which court should inquire into the matter, and determine whether the apprentice had left the service to which he was bound without good cause or not, and should, in the one case, compel the return to service by ordering the infliction of the necessary penalties, and in the other, should order the discharge of the apprentice, and enter "judgment against the master or mistress for not more than one hundred dollars, for the use and benefit of the apprentice."

The second Act provided, that "all free negroes and freedmen in the State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time, and all white persons so assembling with freedmen, free negroes, or mulattoes, or usually associating with freedmen, free negroes, or mulattoes on terms of equality, or living in adultery or fornication with a freedwoman, free negro or mulatto, shall be deemed vagrants, and on conviction thereof, shall be fined in the sum of not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars, and in the case of a white man, two hundred dollars, and imprisoned, at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months."

It further provided, that in case the freedman, free negro or mulatto should not pay the fine within five days from the time of its infliction, the sheriff of the proper county should hire him or her out to any person who would for the shortest period of service pay the fine and all costs, giving the preference, however, to the employer of the freedman, negro or mulatto, if there should be any, and, if no person would hire the same, should hold him or her to be dealt with as a pauper. It also provided that the freedman, free negro, or mulatto refusing or failing to pay a tax should be dealt with by the sheriff in the same manner.

And it provided, finally, that the same duties and liabilities existing among white persons in the "State" to support indigent whites should attach to freedmen, free negroes and mulattoes in regard to the support of colored paupers, and that in order to carry out the same a poll tax, not exceeding one dollar a head, should be levied on every freedman, free negro, and mulatto, between the ages of eighteen and sixty years, and should be collected and paid into the hands of the treasurers of the counties to be used in the support of colored paupers.

The third Act provided, that freedmen, free negroes and mulattoes might acquire, hold, and dispose of, personal property in the same manner and to the same extent as white persons, and might sue and be sued in all the courts of the "State" as white persons, but that they should not rent or lease lands or tenements except in incorporated towns or cities, and under the control of the corporate authorities.

It provided, further, for the intermarriage of freedmen, free negroes and mulattoes, and for the legalization of all previous and existing cohabitations between them, and the legitimation of the issue therefrom; but it forbade intermarriage between them and white persons, under penalty of life imprisonment, and it defined freedmen, free negroes and mulattoes as comprehending all of pure negro blood, and all descended from negroes to the third generation inclusive, although one parent in each generation should have been white.

It provided, further, that freedmen, free negroes and mulattoes should be competent as witnesses in all civil cases, in which they themselves or other freedmen, free negroes and mulattoes were parties or a party to the suit, and in criminal cases where the crime charged was alleged to have been committed by a white person or persons upon or against the person or property of a freedman, free negro, or mulatto.

It provided, further, that every freedman, free negro and mulatto should have a lawful home and employment, and should have written evidence thereof in the form of a license from the police authorities to do irregular or job work, or in the form of a written contract for labor. It required that all contracts made with freedmen, free negroes and mulattoes for labor for a longer period than one month should be in writing, a copy of which should be furnished to each party, and that if the laborer should quit the service of the employer before the expiration of the term fixed in the contract, he should forfeit his wages for that year up to the time of quitting.

It provided, further, for the arrest of any freedman, free negro, or mulatto quitting the service of an employer, and for the determination of the question whether the quitting was for good cause or not, and for the disposition to be made of the deserter.

It provided, further, that enticing or persuading freedmen, free negroes or mulattoes to desert from their legal employment, or employing deserters from contract labor knowingly, or giving or selling them food, raiment or other thing knowingly, should be a misdemeanor punishable by fine, or by imprisonment in case the fine should not be paid.

It provided, further, that no freedman, free negro or mulatto, unless in the military service of the United States, or licensed thereto by the police authorities, should keep or carry arms, ammunition or murderous weapons, and that every civil and military officer should arrest any such person found in possession of such articles, and commit him for trial.

It provided, further, that "any freedman, free negro, or mulatto committing riots, affrays, trespasses, malicious mischief and cruel treatment to animals, seditious speeches, insulting gestures, language or acts, or assaults on any person, disturbance of the peace, or exercising the functions of a minister of the gospel without a license from some regularly organized church, or selling spirituous or intoxicating liquors, or committing any other misdemeanor," should be fined or imprisoned, and, upon failure to pay the fine in five days' time after conviction, should be publicly hired out to the person who would pay the fine and costs for the shortest term of labor from the convict.

And it provided, finally, that "all the penal and criminal laws now in force in this State, defining offences, and prescribing the mode of punishment for crimes and misdemeanors committed by slaves, free negroes or mulattoes, be and the same are hereby re-enacted, and declared to be in full force and effect, against freedmen, free negroes and mulattoes, except so far as the mode and manner of trial and punishment have been changed or altered by law."

This is a fair sample of the legislation subsequently passed by all the "States" reconstructed under President Johnson's plan. In fact, in the

The Mississippi legislation

a fair sample of the

subsequent legislation in

other "States."

legislatures of several of them, bills containing substantially these provisions were under consideration when Congress met, and it was fair to suppose that they would be enacted. Congress had thus in the first week of December, 1865, substantially before it what the reconstructed "States" proposed to do in reference to the status and rights of the former slaves, and in reference to the relations between the negro and the white man in the future.

As yet, we must remember, the Thirteenth Amendment had not been proclaimed as adopted, in fact had not been adopted, on the basis of the calculations of Mr. Seward, the Secretary of State, the officer who alone could proclaim adoption; and the abolition of slavery rested upon the military power of the President, and on the acts of the "States" themselves, the first of which is temporary as to its effects, and the second of which might be reversed by the "States" at pleasure.

The Northern Republicans professed to see in this new legislation at the South the virtual re-enslavement of the negroes. This was an

The view taken of this

legislation by the

Republicans.

extreme view of it, although it certainly did not give the negro equal civil right with the white man, or anything approaching that, to say nothing of failing to offer him any prospects of ever participating in political functions. Of course it would be an abstract assumption to say that the negro ought, at the moment of his emancipation, to have had equal civil right with the white man. Civilized man can be safely

intrusted with a much larger civil liberty than the barbarian or

This legislation from

the point of view of

natural justice.

the semi-barbarian. There is no question also that much severer penalties for the commission of the same crime are necessary among a barbarous race or class than among a civilized race or class. From these points of view this Mississippi legislation does not appear as far from what was natural and even necessary as Mr. Stevens and his followers made it out. The law of apprenticeship was not severe, and, if justly and sincerely executed, it would probably have been beneficial to the young negroes, deprived of the care given them up to that time by master or mistress, and now thrown upon themselves without a cent of money or a particle of property, most of them knowing no parent except a mother as poor as themselves, and entirely unacquainted with the new conditions of life now confronting them.

The law of vagrancy was severer. But it is easy to see that a reasonable execution of that law had as much help as harm in it for the former slave. It would have preserved him against idleness, drunkenness, and thievery, although it did curtail largely his liberty of action. It was, undeniably, the third act, which came so near to the re-enactment of the old slave code in regard to crimes and misdemeanors committed by negroes, that gave the greatest offence. Almost every act, word, or gesture of the negro, not consonant with good taste and good manners, as well as good morals, was made a crime or misdemeanor, for which he could first be fined by the magistrates, and then consigned to a condition almost of slavery for an indefinite time, if he could not pay the fine. There is no question that the "States" of the Union had at that moment the power under the Constitution of the United States to do these things. At that time the determination of the criminal law, both as to the definition of crime, the fixing of penalties, and the fashioning of procedure, was almost entirely a function of the "States," and there was no provision in the Constitution of the United States which required the "States" to treat their own inhabitants with equality in regard to their civil rights and obligations.

Under these circumstances it is not at all surprising that the Republicans of the North strongly felt that the freedom of the negro had not yet been sufficiently guaranteed to render the acknowledgment of the resumption of "State"-powers by the communities so lately in rebellion against the United States for the upholding of negro slavery safe and wise.

It was certainly natural, and it was just and right, that the party in power in Congress should have considered it their duty to so amend the

Correctness of

the Republican

position.

Constitution of the United States, before according "State"-powers to the communities lately in rebellion, as to reap the just fruits of their triumph over secession and slavery. It was certainly their duty to the country to secure the adoption of the Thirteenth Amendment, and any further amendment, necessary to accomplish this result, before putting the recently rebellious communities in a position to defeat the same. And it is certainly not strange that the Republicans should have feared that the Democrats of the North in Congress would soon be found fraternizing with the Senators and Representatives from the reconstructed "States," and that it was their duty to secure "perpetual ascendancy to the party of the Union," before admitting the Senators and Representatives from these "States" to participation in public power. Properly interpreted this only meant that loyal men must govern the country. But it did not follow that only Republicans were loyal men, and that the loyal Democrats of the North would follow the recently disloyal Democrats of the South in legislating upon the issues of the war. Republicans were likely to commit this fallacy in their reasoning. Many of them did commit it. And the result of it was to intensify partisanship at the expense of statesmanship.

Just two weeks after the passage of the Stevens resolution by the House of Representatives, Mr. Seward announced the adoption of the Thirteenth

The ratification of the

Thirteenth Amendment

to the Constitution.

Amendment to the Constitution of the United States. In making this announcement, he declared that there were thirty-six "States" in the Union, and that the legislatures of twenty-seven "States," just three-fourths, the necessary number, had voted its adoption; and among those voting to adopt, he counted the legislatures of Virginia, Louisiana, Arkansas, Tennessee, North Carolina, South Carolina, Georgia and Alabama.

It is to be remarked, however, that had he counted none of the "States" that had passed secession ordinances, either in the whole number, or in the three-quarters necessary to adopt, the Amendment would in that case also have been adopted. There would have been, in that case, twenty-five "States" in the Union, and of these nineteen had adopted the Amendment. And if any controversy had arisen over the use of fractions in making nineteen three-fourths of twenty-five, this would have been quickly overcome by the fact that the legislatures of four more of the loyal "States" adopted the Amendment soon after Mr. Seward's declaration, making twenty-three out of twenty-five. It will not, of course, be disputed that, if the "States" that passed secession ordinances should have been counted in arriving at the whole number of "States" in the Union, those of them adopting the Amendment should also have been counted in making out the three-fourths majority

necessary to adoption, and that if, on the other hand, they should have been excluded in arriving at the whole number, they should also have been excluded in making up the three-fourths majority. In other words, it does not matter from which point of view we regard the subject, the Amendment was regularly and lawfully adopted. It must be admitted, however, that Mr. Seward followed in this most solemn procedure, the amending of the Constitution, the Presidential plan of Reconstruction, and gave great encouragement to the Senators- and Representatives-elect from these reconstructed "States" to expect that they would have the aid and influence both of the Democrats in Congress, and of the Administration, in securing their seats.

They had gone to Washington and, bearing themselves confidently from the first, they now became defiant in demanding their rights. Many of

The demand of the

Senators- and

Representatives-elect

from the reconstructed

"States" to be admitted

to seats in Congress.

them were men who, less than twelve months before, had been in arms against the United States, and one of them was the person who was the Vice-President of the Confederacy at the moment of its downfall, Mr. Alexander H. Stephens. Such an attitude on his part and their part roused again great bitterness of feeling among the Republicans, many of whom conscientiously thought that the real deserts of such persons were the penalties of treason. Moreover, the legislatures of some of the other "States" reconstructed under the President's plan enacted, during December, January and February, measures concerning the status and rights of the emancipated slaves similar to those passed by the legislature of Mississippi, and in some respects even more illiberal than those passed by that body; and it was evident that all of them would finally stand upon the same general ground in regard to this subject.

This was the situation in the last week of February, 1866, when the Senate passed a resolution, concurrent with the Stevens resolution in the House, denying seats to any of the claimants from the "States" lately in insurrection until the report of the Joint Committee on Reconstruction should be made and finally acted upon. Four of the Republican Senators, Messrs. Cowan, Doolittle, Dixon and Norton went against their party associates in this question, but there was still a two-thirds majority in both Houses resolute and resolved to combat the Presidential plan of Reconstruction and to construct and enforce a Congressional plan.

As we have already seen, the Senate had concurred with the House in regard to that part of the Stevens resolution which provided for the

The Joint Committee

of the two houses

of Congress on

Reconstruction.

appointment of a Joint Committee on Reconstruction, at the time it was passed by the House. The members of the Committee were chosen soon after the passage of this part of the Stevens resolution by the Senate. They were, from the Senate, Messrs. Fessenden, Grimes, Harris, Howard, Johnson and Williams, all Republicans except Mr. Reverdy Johnson of Maryland, and from the House, Messrs. Bingham, Blow, Boutwell, Conkling, Grider, Morrill, Rogers, Stevens and Washburne, all Republicans except Grider of Kentucky and Rogers of New Jersey. The Republicans had given themselves a larger representation on the Committee than their numerical relation to the Democrats warranted, but there is no reason to think that the report of the majority would have been in any respect different, if that relation had been more strictly observed.

This Committee sat for about six months before making its final report. During this period, however, several propositions issued from it, and

The activity of Congress

in the interim between the

appointment of the Committee

on Reconstruction and the

Report of the Committee.

two great measures of statute law were passed by Congress, all of which must be more nearly considered in order to keep the thread of the narrative of Reconstruction. Moreover the debate upon the subject of Reconstruction was at the same time in progress and the view of the subject held by the leading Republicans was becoming more clear and fixed.

Mr. Stevens opened this debate in the House on the 18th of December (1865). In a powerful speech, he developed anew his doctrine that the

Thaddeus Stevens's

ideas on

Reconstruction.

territory once covered by the "States," which had seceded from the Union, was nothing now but a conquered district, whose future condition depended upon the will of the conqueror. If "States" should ever be erected there again, it must be accomplished, he contended, by virtue of that provision in the Constitution which declares that "new States may be admitted by Congress into this Union." This theory involved the admission that secession had been temporarily successful. This Mr. Stevens frankly acknowledged. He said: "Unless the law of nations is a dead letter, the late war between the two acknowledged belligerents severed their original contracts, and broke all the ties that bound them together."

This was the extreme doctrine on the one side. It was in blunt contradiction to the doctrine upon which the Administration was acting,

Contradiction between

Stevens's view and

the view of the

Administration.

the doctrine that the attempt at secession was entirely abortive, and that the "States" where it was attempted were still in the Union as "States," and had never been anywhere else or anything else, in fact could not be; that the rebellion was the work of private individuals combined as truly against the real "States" in which it existed as against the United States; and that, therefore, the overthrow of these combinations and the cessation of the military rule of the President must be followed by the resumption on the part of the "States" concerned of all their rights and powers of local self-government and of participation in the United States Government, as guaranteed by the Constitution of the United States, unimpaired, and without any action whatever on the part of Congress. Mr. Raymond represented this view on the floor of the House of Representatives. He was a Republican of the Seward school, and sympathized entirely with his patron upon this subject. It was a great embarrassment to him that the Democrats immediately gave in their adherence to this view. It helped to prevent him from gaining any following at all for it among the Republicans.

But while the Republicans of the House repudiated entirely Mr. Raymond's principles, the great mass of them were not able to accept Mr. Stevens's view of the temporary validity of secession, and the temporary existence of the Southern Confederacy as a foreign power. Their feelings and instincts required a principle of reconstruction which, at the same time that it did not recognize secession as having any validity for the shortest moment, yet regarded the "States" in which it was attempted, as having thereby become something other than "States" of the Union, and as requiring the assent of Congress to the rightful resumption of that status.

It was Mr. Shellabarger, of Ohio, who did more than anybody else to give the proper logical interpretation to these feelings and invent the

Mr. Shellabarger's

theory of

Reconstruction.

theory of Reconstruction on which the Republicans could plant themselves. Briefly stated that theory was that, while secession was a nullity legally from the beginning, and could not take the territory

occupied by the "States" attempting it, or the people inhabiting that territory, out of the Union, or from under the rightful jurisdiction of the United States Government and Constitution for one instant, yet it worked the loss of the "State" status in the Union, and from a legal point of view left this territory and the inhabitants of it subject exclusively to the jurisdiction of the United States Government, a status from which they could be relieved only by the erection of "States" anew upon such territory, an operation which could be effected, under the Constitution of the United States, only by the co-operation of Congress with the loyal inhabitants of such territory.

This was sound political science and correct constitutional law. It could not fail to command the assent of the great majority of the

Mr. Sumner's theory

of Reconstruction.

Republicans in the House and in the country. This same doctrine was, at the same time, developed in the Senate by Mr. Sumner, Mr. Fessenden and Mr. Wilson, and it was easy to see that it had become the theory of the Republican party in Congress long before the final report of the Committee on Reconstruction promulgated it. Even Stevens and his radical followers were in line with it in so far as practical results were concerned. That is, the Republicans all stood together on the