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}