The Struggle between President Johnson and Congress over Reconstruction

by Charles E. Chadsey

He had long believed that the apportionment of Representatives should be based on the number of qualified voters; while a member of the legislature of Tennessee he had moved that the apportionment in that State be so made; and in the interview with Mr. Stearns he said: “The apportionment is now fixed until 1872; before that time we might change the basis of representation from population to qualified voters, North as well as South, and, in due course of time, the States, without regard to color, might extend the elective franchise to all who possessed certain mental, moral or such other qualifications as might be determined by an enlightened public judgment.”[56]

But however desirable a limited suffrage might be, he insisted that the only safety for the nation lay in leaving the whole subject to the discretion of the individual State. The only approach which he would make to national interference would be through constitutional amendment. In an interview with Senator Dixon of Connecticut, on January 28, 1866, he suggested that such an amendment might be worded in the following manner:

“Representatives shall be apportioned among the several States which may be included within this Union according to the number of qualified voters in each State.

“Direct taxes shall be apportioned among the several States which may be included within this Union according to the value of all taxable property in each State.”[57]

The great advantage of an amendment of this kind, in President Johnson’s opinion, was that Congress would thus shift all responsibility regarding negro suffrage to the States. Each State would determine the qualifications for voters, and its representation in Congress would depend entirely upon the narrowness or broadness of the suffrage.

In the same interview with Senator Dixon, he described the current contention over negro suffrage as “ill-timed, uncalled for, and calculated to do great harm.”

8. While the President was expressing his belief in qualified representation, and advising the States in process of reconstruction to grant some form of limited suffrage, the States themselves manifested no disposition to follow his advice. While he was describing them in October as lying helpless, they were busy framing laws which were aimed to counteract, so far as possible, the force of the emancipation proclamation.

When Georgia declared slavery abolished she did so with the proviso that “acquiescence in the action of the Government of the United States is not intended to operate as a relinquishment, or waiver, or estoppel of such claim for compensation of loss sustained by reason of the emancipation of his slaves, as any citizen of Georgia may hereafter make upon the justice and magnanimity of that Government.”[58] Alabama, South Carolina, and Florida in their ratifications of the 13th Amendment stated their understanding to be that it did not confer upon Congress power to legislate upon the political status of the freedman. The Alabama legislature passed joint resolutions in which it was affirmed: “That Alabama will not voluntarily consent to change the adjustment of political power as fixed by the Constitution of the United States, and to constrain her to do so, in her present prostrate and helpless condition, with no voice in the councils of the nation, would be an unjustifiable breach of faith.”[59]

But most important of all was the legislation of these States respecting the freedman. All were confronted by a host of emancipated blacks, whose legal status had to be determined. The legislatures had before them work of the most delicate nature, inasmuch as it not only vitally affected every person in their own section, but also attracted the keenest interest from the whole North. All realized that Johnson’s policy would here undergo the crucial test. Would the legislators of these States, so soon thrown upon their own responsibility, show due consideration for the new order of things, or would they take advantage of their opportunity and proceed to draw the color line as sharply as ever, discriminating against the negro, and denying him privileges which should be allowed him? Had the South proved equal to the situation, the wisdom of Johnson’s policy would have been sustained, and the bitterness characteristic of the 39th and 40th Congresses would have been avoided.

Mississippi was the first to adopt “black laws” obnoxious to the North. Her vagrant act was passed November 24, 1865. This provided that freedmen found with no lawful employment or business, or unlawfully assembling together, should be deemed vagrants, and be fined and imprisoned at the discretion of the court. A poll tax for a freedmen’s pauper fund was to be levied on all freedmen, and should any fail or refuse to pay, he was to be hired out by the sheriff to any one who would pay the tax and costs, preference being given to his former master. Two days later a civil rights act was passed. This allowed freedmen to sue and be sued, implead and be impleaded, and to own personal property, but added the important proviso that the section should not be construed “to allow any freedman, free negro or mulatto to rent or lease any lands or tenements, except in incorporated towns or cities,” where they should be controlled by the corporate authorities. Intermarriage of a white with any freedman, free negro or mulatto, should be punished by imprisonment in the state penitentiary for life. A laborer quitting before expiration of term of service without good cause, forfeited to his employer all wages for that year up to the time of quitting. Any one was authorized to arrest and return a deserting freedman, receiving therefor five dollars reward and mileage, all costs to be paid from the wages of the deserter. Any one persuading or attempting to persuade any freedman to desert his employer before his term of service expired, was guilty of a misdemeanor, and liable to a fine of not less than twenty-five and not more than two hundred dollars, and if the offender attempted to persuade the freedman to desert, with a view of employing him without the limits of the State, the fine was to be not less than fifty nor more than five hundred dollars. While it was made lawful for a freedman to charge a white man with a criminal offence against his person or property, and to make all needful affidavits, a supplementary act passed December 2 provided that where sufficient proof was made before a court or jury that the arrest and trial had been falsely or maliciously caused, the freedman should be fined, and charged with all costs, and on failure to pay should be hired out at public outcry for the shortest time necessary to discharge the debt. An act passed November 29, among other restrictions, forbade freedmen to carry any fire arms, ammunition, dirk or bowie knife, under penalty, and declared that a freedman exercising the functions of a minister of the gospel, without a license from some regularly organized church, should be guilty of a misdemeanor, and become liable to an imprisonment not exceeding thirty days and to a fine not exceeding one hundred dollars.