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.

[Sidenote: The Stevens resolution.]

So soon as the House of Representatives had elected its Speaker, Mr.

Colfax, and other officers, and before the reception of the President's

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 {43} 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.

[Sidenote: The view of the House that Reconstruction could not be

effected by the Executive.]

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

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.

[Sidenote: Passage of the Stevens resolution as a concurrent

resolution.]

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 {44}

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

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.

[Sidenote: Legislation of the reconstructed "States" concerning the

status of the freedmen, and the Freedmen's Bureau.]

There were two other considerations which moved the Republicans in

Congress to assume this attitude in regard to Reconstruction. One was

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.

[Sidenote: The administration of 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 {45}

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

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.

[Sidenote: Vagrancy, apprenticeship and civil rights in the

reconstructed "States."]

When, now, the newly reorganized "States" came to assume jurisdiction

over matters concerning the freedmen, they found themselves driven to

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.

[Sidenote: Examination of these vagrancy acts, etc.]

It must be remembered, however, that at the time of the passage of the

Stevens resolution by the House of {46} Representatives, only two of

Mr. Johnson's reconstructed "States" had passed any laws upon these

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 {47} 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.

[Sidenote: The Mississippi Acts.]

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

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, {48} 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 {49} 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 {50} 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 {51} 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 {52} freedmen, free

negroes and mulattoes, except so far as the mode and manner of trial

and punishment have been changed or altered by law."

[Sidenote: The Mississippi legislation a fair sample of the subsequent

legislation in other "States."]

This is a fair sample of the legislation subsequently passed by all the

"States" reconstructed under President Johnson's plan. In fact, in the

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.

[Sidenote: The view taken of this legislation by the Republicans.]

[Sidenote: This legislation from the point of view of natural justice.]

The Northern Republicans professed to see in this new legislation at

the South the virtual re-enslavement of the negroes. This was an

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

{53} intrusted with a much larger civil liberty than the barbarian or

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 {54} 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.

[Sidenote: Correctness of the Republican position.]

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

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 {55} 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.

[Sidenote: The ratification of the Thirteenth Amendment to the

Constitution.]

Just two weeks after the passage of the Stevens resolution by the House

of Representatives, Mr. Seward announced the adoption of the Thirteenth

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 {56}

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.

[Sidenote: The demand of the Senators- and Representatives-elect from

the reconstructed "States" to be admitted to seats in Congress.]

They had gone to Washington and, bearing themselves confidently from

the first, they now became defiant in demanding their rights. Many of

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.

{57} 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.

[Sidenote: The Joint Committee of the two houses of Congress on

Reconstruction.]

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

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.

[Sidenote: The activity of Congress in the interim between the

appointment of the Committee on Reconstruction and the Report of the

Committee.]

This Committee sat for about six months before making its final report.

During this period, however, several propositions issued from it, and

two great {58} 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.

[Sidenote: Thaddeus Stevens's ideas on Reconstruction.]

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

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."

[Sidenote: Contradiction between Stevens's view and the view of the

Administration.]

This was the extreme doctrine on the one side. It was in blunt

contradiction to the doctrine upon which the Administration was acting,

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 {59} 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.

[Sidenote: Mr. Shellabarger's theory of Reconstruction.]

It was Mr. Shellabarger, of Ohio, who did more than anybody else to

give the proper logical interpretation to these feelings and invent the

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

{60} 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.

[Sidenote: Mr. Sumner's theory of Reconstruction.]

[Sidenote: The Republicans in Congress almost unanimously in favor of

the Shellabarger-Sumner plan.]

This was sound political science and correct constitutional law. It

could not fail to command the assent of the great majority of the

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

principle that Reconstruction could only be effected by Congressional

acts, since it was tantamount to a conferring, or reconferring, of the

"State" status upon a population at the moment subject to the exclusive

jurisdiction of the Government of the United States. This meant that

the entire Republican party in Congress, with the exception of the four

members of the Senate already named, and of Mr. Raymond and one other

in the House (and this constituted a majority of two-thirds in each

House) would antagonize the plan of Executive Reconstruction {61}

devised by Lincoln and Seward and persisted in by Johnson and, to that

moment, by his cabinet. How far the Republicans in Congress would go in

the attempt to set aside Executive Reconstruction depended chiefly upon

the moderation of the President, and the sincerity of the people in the

South. It depended also in some degree, to say the least, upon what

would be necessary to keep the Republican party, which conceived itself

to be the only really loyal party to the Union, in power.

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.

{62}

Reconstruction and the Constitution, 1866-1876 · 第 4 / 14 章