CONGRESS AND THE "BLACK CODES"
Congress assembled at the beginning of December, 1865, and at the very
outset declared that the work of reconstruction must pass under its
hands. Before the President's message was read, Thaddeus Stevens, the
leader of the House, moved that a joint committee of fifteen on
reconstruction, be appointed by the House and Senate; and that until
that committee had reported no senator or representative from the lately
seceded States should be admitted. This action was taken at once, by a
large majority in both houses, and the committee was promptly appointed,
with Senator Fessenden at its head. Then the President's message was
read,--a very able paper, broad and statesmanlike in tone, recounting
the President's action and the choice of conventions and Legislatures in
the seceded States; their repudiation of secession and slavery; the
inauguration of loyal State governments;--this, with an invitation to
Congress to accept and co-operate in this policy, and a hopeful view of
the general situation. The message was favorably received, and for a
moment it looked as if the President and Congress might work in harmony.
But the claim of Congress to a paramount voice in the settlement was
well based, not only in constitutional theory, but in the immediate
facts. Congress came fresh from the people; its members knew how the
currents of popular thought and feeling ran. The President was
comparatively out of touch with the nation; he had, so to speak, no
personal constituency; he was a Southern loyalist, apart from the mass
of both South and North. Further, this Congress was personally a strong
body of men. They represented in an unusual degree not merely the
average sentiment but the better sentiment of the North. To glance at a
few of their leaders: Thaddeus Stevens was a Pennsylvanian, a leader at
the bar, active in anti-slavery politics, conspicuous by his successful
defense of the State's public school system; a man of strong convictions
and strong passions, a natural fighter; skillful in parliamentary
management; vigorous and often bitter in debate; not scrupulous in
political methods; loyal to his cause and his friends, and vindictive to
his enemies; an efficient party leader, but in no high sense a
statesman. Up to his death in 1868 he exercised such a mastery over the
Republican majority in the House as no man since has approached. He is
sometimes spoken of as if he had been the ruling spirit in
reconstruction, but this seems a mistake. He was a leader in it, so far
as his convictions coincided with the strong popular current; but his
favorite ideas were often set aside. He was an early advocate of a wide
confiscation, but that policy found no support; and at the crucial
points of the reconstruction proceedings he was often thwarted and
superseded by more moderate men.
Charles Sumner was a high-minded idealist and a scholar, devoted to
noble ends, but not well versed in human nature. He was a lover of Man,
but with men he was not much acquainted. His oratory was elaborate and
ornate, and he unduly estimated the power of words. Sometimes, says
Senator Hoar, he seemed to think the war was to be settled by
speech-making, and was impatient of its battles as an interruption--like
a fire-engine rumbling past while he was orating. But he had large
influence, partly from his thoroughly disinterested character, and
partly because beyond any other man in public life he represented the
elements of moral enthusiasm among the people. His counterpart was
Henry Wilson, his colleague in the Senate. Wilson had risen from the
shoe-maker's bench, and knew the common people as a cobbler knows his
tools. He was genial in temperament; public-spirited and generous in his
aims; a most skilful tactician, and not over-scrupulous. He joined the
Know-nothings, with no sympathy for their proscriptive creed, but in the
break-up of parties using them for the anti-slavery cause,--and to
secure his own election to the United States Senate. He was a good
fighter, but without rancor; and he was an admirable interpreter of the
real democracy. Senator Hoar, in his autobiography, graphically
describes how at some crisis Wilson would travel swiftly over the State,
from Boston to Berkshire, visit forty shops and factories in a day, talk
with politicians all night, study the main currents and the local
eddies; and after a week or two of this--seeming meanwhile to be backing
and filling in his own mind--would "strike a blow which had in it not
only the vigor of his own arm, but the whole vigor and strength of the
public sentiment which he had gathered and which he represented."
Prominent in the Senate was "bluff Ben Wade" of Ohio, an old-time
anti-slavery man, radical, vigorous, a stout friend and foe. Another
conspicuous radical was Zachariah Chandler of Michigan. He was born in
New Hampshire, went West early in life, and was a chief organizer and
leader of the Republican party in Michigan. He was a mixture of Yankee
shrewdness and Western energy; patriotic, masterful, somewhat
coarse-grained and materialistic; and, like many of his associates,
better suited for controversy and war than for conciliation and
construction. Of a higher type were three men who stood near the head in
the Senate,--John Sherman of Ohio, Lyman Trumbull of Illinois, and
William P. Fessenden of Maine. In the qualities for solid work, few men
of his time surpassed Sherman. He was wise in framing legislation, and a
good administrator,--an upright, moderate, serviceable man. Trumbull, of
Connecticut birth, was well trained in the law and eminent as a
constitutional lawyer. He made his serious entrance into public life
along with Lincoln, and was his near friend and adviser. He was an able
though not a brilliant debater; a man of independent convictions and
thorough courage. Fessenden, like Trumbull, was entitled to rank as a
real statesman. Like Trumbull he had no popular arts, and where Trumbull
was reticent and withdrawn in manner, Fessenden was austere and
sometimes irascible. In private character both were above reproach.
Fessenden had a finely-trained and richly-equipped mind. In an
emergency, after Chase's retirement, he accepted the secretaryship of an
almost bankrupt treasury, and handled it well. His devotion to duty was
unreserved; he was an admirable debater; and he had the high power of
framing legislation. His was the most important work of the
reconstruction committee, and Trumbull, as chairman of the judiciary
committee, had a chief hand in the other leading measures. The Democrats
were few and not strong in leadership; their ablest man was Reverdy
Johnson of Maryland,---highly educated and large-minded. With these were
other senators of repute; and in the House there were abundant men of
mark,--Colfax, Blaine, Banks, Boutwell, Dawes, Conkling, Henry J.
Raymond, Randall, Hayes, Garfield, Bingham, Shellabarger, Voorhees,
Elihu B. Washburn;--space is wanting to name others, or to individually
characterize these.
In estimating the work of reconstruction we must take account of the
character of the men who shaped it. Taking these leaders as a body, they
fall into groups,--Sumner for the uncompromising idealists; the radicals
by temperament, like Stevens, Wade, and Chandler; the men of higher
training, minds of the statesman's type, and a certain austerity of
temper, such as Fessenden, Trumbull, and Sherman. Among them all there
was a deficiency of that blending of large view, close insight, and
genial humanity, which marked Lincoln. Small discredit to them that they
were not his peers,--but the work in hand demanded just such a
combination.
It is to be remembered that all of these, like the mass of the Northern
people, had been for many years contending with all their might for
certain ends, and in keenest hostility to the Southern whites. They had
fought for the Union and freedom; the South had fought for the
Confederacy and slavery. By sheer overpowering physical force the
Southern armies had been beaten down, and peace restored, and in name at
least the national authority re-established. But by conviction, habit,
instinct, these opponents yet hot from the battle-field would scrutinize
with jealous care the real success of their principles and the
disposition of their late foes.
The President's policy, as laid down in his message, was at once
challenged in Congress. Stevens opened the debate in the House, and,
without directly assailing the President, antagonized his theory that
the States, like the Union, were indestructible, that secession had only
temporarily suspended their relation, and that they now by right
recurred at once to their normal position. Against this Stevens
maintained that by their rebellion these States had, as organizations,
committed suicide, that they now were in the position of conquered
territory, and that out of this territory Congress was to create new
States on whatever terms it judged most expedient. The President's
theory found an able supporter in Henry J. Raymond, who had just
exchanged the editorship of the New York _Times_ for a seat in Congress.
But he had only a single ally among his Republican colleagues, and the
lonely couple, with four Republican senators, proved to be the only
habitual supporters of the President in the party that had elected him.
But the Democrats came to his side with an alacrity that strengthened
the Republican opposition. Their party had as a whole leaned toward the
South during the war, and they now welcomed the easy terms held out by
the President to their old associates. The Republican doctrine was best
formulated by Shellabarger of Ohio, who, without going to the full
length of Stevens's theory, maintained the essential right of Congress
to lay down the conditions on which the seceded States could resume
their old relation with the Federal Government. That seemed the just and
inevitable logic of the situation; and it was expressed in as much
conformity with the Constitution as was practicable after the rude
jostle of a four years' war.
Meantime, Republican leaders in the Senate--Sumner, Wilson and
Fessenden--were announcing the same doctrine, and were earnestly
declaring that the actual conditions of the South called for stronger
remedies than the President had provided. A joint resolution brought
before Congress a report which had been made to the President by Carl
Schurz, after a tour of several months for which he had been specially
commissioned. With this report, the President sent also one from General
Grant, whom he had asked, during an official trip of a few days, to
observe the general disposition and temper of the Southern people. Grant
stated his conclusion to be that "the mass of thinking men of the South
accept the present situation of affairs in good faith"; and that they
cordially acquiesce in the restoration of the national sovereignty and
the abolition of slavery; and Grant's name carried great weight.
But Mr. Schurz's much longer and more careful study had brought him to
very different conclusions. He was a trained observer and thinker; a
German refugee after the disturbances of 1848; a leader among the
emancipationists in Missouri before the war, a general in the Union
army, and a political radical. Mr. Schurz recapitulated his observations
and conclusions, as he then reported them, in an article in _McClure's
Magazine_ for January, 1904; and they come now with increased weight
after a life-time of disinterested and sagacious public service. That he
found the Southern whites acquiescing in their defeat only as of
necessity, conquered but not convinced--is no matter of surprise; though
Mr. Schurz seems somewhat to have shared the Northern expectation that
their late foes should take the attitude of repentant sinners. But as to
their practical attitude toward the negro, his testimony is important.
He relates that he found the general assertion to be "You cannot make
the negro work without compulsion." This conviction he encountered
everywhere; all facts to the contrary were brushed aside, and every
instance of idleness or vagabondage was cited as proof positive of the
negro's unwillingness to labor. The planter who seriously maintained in
Mr. Schurz's presence that one of his negroes was unfit for freedom
because he refused to submit to a whipping, went only a little further
than his neighbors.
As to actual behavior of the negroes, under this sudden and tremendous
change of condition, certain facts were noted; not a single act of
vengeance was charged against them; a great part, probably the large
majority, remained or soon went back to work for their old employers;
but a considerable part began an aimless roaming to enjoy their new
liberty, or huddle around the stations where the agents of the
Freedmen's Bureau doled out some relief. As to their education, popular
opinion was no less unfavorable than as to their labor. The common
expressions were "learning will spoil the negro for work," "negro
education would be the ruin of the South," and even "the elevation of
the blacks would be the degradation of the whites." In practical
application of these views, negro schools were frequently broken up and
the school-houses burned; and in many places they were only safe under
the immediate protection of the Federal troops. After many further
particulars, especially as to the oppressive laws passed by the new
governments, Mr. Schurz sums up: "To recapitulate; the white people of
the South were harassed by pressing necessities, and most of them in a
troubled and greatly excited state of mind. The emancipation of the
slaves had destroyed the traditional labor system upon which they had
depended. Free negro labor was still inconceivable to them. There were
exceptions, but, as a rule, their ardent, and in a certain sense not
unnatural, desire was to resist its introduction, and to save or restore
as much of the slave labor system as possible."
It was the character of the laws and ordinances passed under these
circumstances which was to the better sentiment of the North the most
concrete and convincing argument against restoring the Southern States
by the short and easy road proposed by President Johnson. It is to those
laws, and the condition underlying them, that we must ascribe the
refusal of Congress--backed by Northern conviction--to confirm the early
restoration which at first seemed so promising. So those laws deserve
careful consideration, as well as the situation which led to them.
The Southern people, blacks and whites, were in a position of almost
unexampled difficulty. To the ravages of war and invasion, of
impoverishment and bereavement--and, as it fell out, to two successive
seasons of disastrous weather for crops,--was added at the outset a
complete disarrangement of the principal supply of labor. The mental
overturning was as great as the material. To the negroes "freedom"
brought a vague promise of life without toil or trouble. The hard facts
soon undeceived them. But for the indulgent Providence they at first
hoped for, some occasional and partial substitute appeared in the
offices of the Freedmen's Bureau. This had been established by Congress,
in March, 1865, with the laudable design of helping to adjust the
freedmen to their new condition; to make temporary provision for the
extreme physical wants of some; to aid them in arrangements for labor
and education; and, as was at first contemplated, to lease to them
abandoned or confiscated lands, in plots of forty acres, for three
years. This land provision was soon abandoned, there being no
confiscation to provide the necessary land; but it started the
expectation of "forty acres and a mule," which misled many a freedman.
As chief of the Bureau was appointed General O. O. Howard, a
distinguished Union commander, of the highest personal character, and
entirely devoted to his new work; and under him was a commissioner with
a working force in each of the States. The Bureau accomplished
considerable good; but its administration on the whole was not of the
highest class; among its subordinates were some unfit men; and a good
deal of offense and irritation attended its operations. At most, it
touched only the circumference of the problem. Three and a half millions
of newly enfranchised, ignorant men, women and children! What should
provide for the helpless among them, especially for the children, whom
the master's care had supported? How should order be maintained in the
lower mass, half-brutalized, whom slavery had at least restrained from
vagabondage, rapine, and crime? And how should the whole body be induced
to furnish the dynamic, driving power of industry essential to the
community's needs? These questions the South essayed to answer in part
by a system of laws, of which we may take as a fair specimen the
legislation of Mississippi--the only State which had enacted this class
of laws before Congress met,--as they are summarized in the thorough and
impartial book of Professor J. W. Burgess, _Reconstruction and the
Constitution_.
The law of apprenticeship ran thus: Negro children under eighteen,
orphans or receiving no support from their parents, to be apprenticed,
by clerk of probate court, to some suitable person,--by preference the
former master or mistress; the court to fix the terms, having the
interest of the minor particularly in view; males to be apprenticed till
end of twenty-first year, females to end of eighteenth. No other
punishment to be permitted than the common law permits to a parent or
guardian. If the apprentice runs away, he is to be apprehended and
returned, or, if he refuses to return, to be confined or put under bonds
till the next term of the court, which shall then decide as to the cause
of his desertion, and if it appears groundless compel his return, or if
he has been ill-treated fine the master not more than $100 for the
benefit of his apprentice. This statute seems not oppressive but
beneficent.
The law of vagrancy provided that all freedmen having no lawful
employment or business, or who are found unlawfully assembling, and all
white persons so assembling in company with freedmen, or "usually
associating with freedmen, free negroes, or mulattoes, on terms of
equality," are to be deemed vagrants, and fined, a white man not more
than $200, a negro not more than $50, and imprisoned, a white man not
more than six months, a negro not more than ten days. If the negro does
not pay his fine within five days, he is to be hired out by the sheriff
to the person who will pay his fine and costs for the shortest term of
service. The same treatment is to be applied to any negro who fails to
pay his tax. This statute meant legal servitude for any negro not
finding employment, and the same penalty for a white man who merely
consorted with negroes on equal terms.
The law of civil rights provided that all negroes are to have the same
rights with whites as to personal property, as to suing and being sued,
but they must not rent or lease lands or tenements except in
incorporated towns and cities, and under the control of the corporate
authorities. Provision is made for the intermarriage of negroes, and the
legalization of previous connections; but intermarriage between whites
and negroes is to be punished with imprisonment for life. Negroes may be
witnesses in all civil cases in which negroes are parties, and in
criminal cases where the alleged crime is by a white person against a
negro. Every negro shall have a lawful home and employment, and hold
either a public license to do job-work or a written contract for labor.
If a laborer quits his employment before the time specified in the
contract, he is to forfeit his wages for the year up to the time of
quitting. Any one enticing a laborer to desert his work, or selling or
giving food or raiment or any other thing knowingly to a deserter from
contract labor, may be punished by fine or imprisonment. No negro is to
carry arms without a public license. Any negro guilty of riot, affray,
trespass, seditious speeches, insulting gestures, language or acts, or
committing any other misdemeanor, to be fined and imprisoned, or if the
fine is not paid in five days to be hired out to whoever will pay fine
and costs. All penal and criminal laws against offenses by slaves or
free negroes to continue in force except as specially repealed.
Many of these clauses speak eloquently for themselves, and as to the law
in general Professor Burgess, who certainly has no anti-Southern bias,
comments: "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 be consigned to a condition of almost slavery for
an indefinite time, if he could not pay the bill." And Professor Burgess
adds, "This is a fair sample of the legislation subsequently passed by
all the States reconstructed under President Johnson's plan."
The case against this class of laws may be left--in the necessary limits
of space--with this careful and moderate statement, though the
temptation is strong to quote from Mr. Schurz and other authorities
further specimens of the great body of harassing legislation, both state
and local;--the establishment of pillory and whipping-post; the
imposition of unjust taxes, with heavy license fees for the practice of
mechanic arts; requirements of certified employment under some white
man; prohibition of preaching or religious meetings without a special
license; sale into indefinite servitude for slight occasion; and so
on--a long, grim chapter. Whatever excuses may be pleaded for these
laws, under the circumstances of the South, all have this
implication,--that the negro was unfit for freedom. He was to be kept as
near to slavery as possible; to be made, "if no longer the slave of an
individual master, the slave of society." And further, as to the broad
conditions of the time, two things are to be noted. The physical
violence was almost wholly practiced by the whites against the negroes.
Bands of armed white men, says Mr. Schurz, patrolled the highways (as in
the days of slavery) to drive back wanderers; murder and mutilation of
colored men and women were common,--"a number of such cases I had
occasion to examine myself." In some districts there was a reign of
terror among the freedmen. And finally, the anticipation of failure of
voluntary labor speedily proved groundless. A law was at work more
efficient than any on the statute-books,--Nature's primal law, "Work or
starve!" Many, probably a majority of the freedmen, worked on for their
old masters, for wages. The others, after some brief experience of
idleness and starvation, found work as best they could. No tropical
paradise of laziness was open to the Southern negro. The first Christmas
holidays, looked forward to with vague hope by the freedmen and vague
fear by the whites, passed without any visitation of angels or
insurrection of fiends. In a word, the most apparent justifications for
the reactionary legislation,--danger of rapine and outrage from
emancipated barbarians, and a failure of the essential supply of
labor--proved alike groundless.
As the facts of the situation became known, not only by Mr. Schurz's
report, but by news from the Southern capitals and by various
evidence--it was very clear that Congress could not and would not set
the seal of national authority on any such settlement as this. Granted,
and freely, that no millennium was to be expected, that a long and
painful adjustment was necessary,--yet it was out of the question that
any political theory or any optimistic hopes should induce acquiescence
in the legal establishment of semi-slavery throughout the South. It was
not Stevens's rancor, nor Sumner's unpracticability, but the serious
conviction of the North, educated and tempered by long debate and bitter
sacrifice, which ordained that the work of freedom must not be thrown
into ruins.