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.