Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER 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.

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.

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.

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.

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.

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."

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.

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.

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."

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.

This legislation from
the point of view of
natural justice.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The Republicans in
Congress almost
unanimously in favor
of the Shellabarger-
Sumner plan.

There is no doubt that the Sumner-Shellabarger theory of Reconstruction was correct. The only question was how exacting Congress would be in realizing it. Under such a situation it behooved the President to act with great caution and moderation, and to do nothing to provoke a conflict in which he was certain to be worsted. And it also behooved the people of the South to make no opposition to the bestowal of a large measure of civil liberty upon the freedmen, nor to such an adjustment of the basis of political representation as would not necessitate negro suffrage, and not to insist upon sending to Congress, at the outset, the men who had made themselves particularly obnoxious to loyal feeling. How both the President and the persons in authority at the South disregarded these considerations of prudence, and how the position assumed by them upon these subjects drove Congress into more and more radical lines, is the further subject of the next three chapters.