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Chapter 52: President Johnson's reconstruction and further bureau legislation for 1866

President Johnson, by the inspiration and help of his Secretary of State, Mr. Seward, had succeeded before the meeting of Congress in December, 1865, in completely rehabilitating all the States that had belonged to the Southern Confederacy, so far as the form went. Apparently all the functions of Government, both State and National, were already reawakened and in operation. By taking the old State constitutions of 1861 and modifying them slightly to make them comply with the Thirteenth Amendment of the National Constitution, seemingly the problems of reconstruction were solved. Everything, for a time, to the late Confederates, was going on as they would have it. All those who had been for four years fighting against the United States were again in power at the State capitals, or so close behind those in office that they made themselves felt in every sort of legislation and act of administration. But the freedmen were left outside of all proper citizenship. They had no voice directly or indirectly in the new governments over them, and soon, worse than that, vicious laws were passed that made their actual condition deplorable. They were, indeed, but for military protection, which still lingered in the South, worse off than under the old system of slavery. [278]

At this juncture, when Congress was assembling, the situation may be summarized as follows: The Southern legislators, in keeping with Judge Taney's famous Dred Scott decision, very clearly demonstrated that the negro had no rights. True, they had formally adopted the Thirteenth Amendment to the National Constitution, but had followed that action by legislation which vitiated its provisions. The smallest acts annoying to white men were raised to misdemeanors, while vagrancy, poverty, and even enforced idleness were made to constitute a crime to be punished by excessive fines or hard labor under constraint. The labor and vagrancy laws, ostensibly for white and black alike, were so executed as to reach the freedmen only, and indeed to many of them the liberty granted by our amended Constitution was thus to all intents and purposes overborne and crushed by hostile State action.

As soon as Congress met, Southern senators and representatives elect from the insurrectionary States were on hand at the doors of each House waiting for admission and recognition. But this thirty-ninth Congress had taken fire. The Executive, so Congressmen alleged, had largely encroached upon its proper province. The members of both Houses were too impatient even to wait for the President's message. Combating resolutions were at once introduced and passed, appointing a joint reconstruction committee of fifteen members to inquire into the condition of the States which claimed to be reconstructed, and to report whether any of them were entitled to representation in Congress, “with leave to report at any time by bill or otherwise.”

The contest that here began between that Congress [279] and President Johnson, with all the Southern legislatures involved, affords a piece of history of deepest interest, and subsequently it greatly affected the existence and operations of the Freedmen's Bureau. The life of that Bureau was to terminate by law one year after the close of the war. By the most favorable interpretation that one year could not extend beyond the fiscal year ending June 30, 1866. The necessity for the protection which the Freedmen's Bureau would give became more and more apparent. Every report received from our agents bore evidences of troubles then existing and apprehended.

The words of the assistant commissioner of North Carolina, Colonel Whittlesey, were significant. They found a veritable echo in the reports of other assistants and subassistants throughout the South.

Writing from Raleigh, December 1st, he said: “But it is evident all over the South that the colored race cannot be safely left in the hands of the late masters or the Southern people. Just as sure as that is done, such oppressive laws will be enacted that the blacks will be driven to desperation and the scenes lately witnessed in Jamaica will be reinacted in many sections of our own country.”

He gave instances of outrages committed against loyal people because of their loyalty. This was done in places where the military had been withdrawn. A young man was threatened and stoned because he had opened a “nigger” school. Whittlesey added: “I do hope that Congress will grasp the whole subject and show itself master of the situation. No legislation for the freedmen should be allowed — it is not consistent with the republican form of government. All laws should apply to all races alike. Give equal rights to [280] whites and blacks; impose the same taxes, the same duties, the same penalties for crime, and then execute the laws with simple justice; and the result will be peace, safety, and prosperity. . . . But the white people in this State are not yet ready to treat black men justly. Therefore, the Federal Government ought to retain control. Our military force ought to be increased and not reduced.”

Early in this, the last session of the thirty-ninth Congress, Senator Trumbull of Illinois, instead of simply sending for me as would have been customary, kindly came to my office and studied the operations of the Bureau. I was then striving to carry out the existing law, and realized how essential to the interests of the freedmen it was to extend the time of its operation. It was indeed important for the sake of humanity that that continued operation should obtain, not only in the cotton, but in the border States. I further believed and desired that the recent slaves should attain to all the rights of freemen before the existing protection of the general Government should be withdrawn from them. I had been much hampered by the instructions of the President himself, who had now gradually drifted into positive opposition to the Bureau law — a law that he was bound by his oath of office to execute, but one that his process of reconstruction had caused to be violated in the spirit, if not in the letter, so as to render it nugatory. This worthy senator, always of a conservative turn, warmly took the freedmen's part. I well remember those nights at my headquarters, for Mr. Trumbull's thoughts deeply impressedtme. In a subsequent speech he declared the freedmen's condition to be “abject, forlorn, helpless, and hopeless.” [281]

January 5, 1866, he introduced in the Senate a new Freedmen's Bureau bill. On the 12th of the same month it was brought up for discussion, when he explained what he wished to accomplish with it: (1) An essential extension beyond the one year to be terminated by a future Act of Congress. (2) That it should apply to the whole country wherever were the beneficiaries; (3) That the President should give them land by reserving not exceeding 3,000,000 acres from settlement or sale in certain Southern States where public lands still remained; (4) That General Sherman's possessory titles on the sea islands be made real; and (5), more important still, that when discriminations against negroes were made Bureau officers and agents should take and hold jurisdiction of the offenses.

Much feeling and bitterness were evolved in the discussion that followed the senator's statements. Yet all hindering amendments were voted down, and January 25th, the bill passed the Senate by 27 majority. In the House there was a like fiery discussion. The bill was amended so as to limit it to sections of the country where the habeas corpus remained suspended on February 1, 1866.

The Senate removed the amendment, so that the original bill passed both Houses and February 10th went to the President. He returned it with a veto. He objected to thus legislating without the new representatives and senators from the South. He declared that the bill interfered with the local administration of justice; that it was unconstitutional for the general Government to support indigent persons; that it was unreasonable to make provision for a class or color; that it was extravagantly expensive, there being $11,745,--000, according to the commissioner's estimates for the [282] current year, and likely under the bill to be double that amount-“greater than the entire yearly administration of John Quincy Adams.”

The Senate did not get a two-thirds vote to overcome the veto, several senators having changed their attitude regarding it, so that Trumbull's bill failed to become a law. But in the House the persistent chairman of the Freedmen's committee, Mr. Eliot, very soon introduced a new Bureau bill, from which he had removed several objections made by those senators who refused to vote for the first bill over the veto. The duration he fixed at two years; he left out the sea island clause, and he reduced the acres of public lands to 1,000,000. This measure went through both Houses and was vetoed like the others for similar reasons. But this time both Houses passed the measure over the President's veto, and it became a law July 16, 1866. The attitude of President Johnson and of the leading Southern whites, together with the apparent inability of Congress to enact a law to which he and his new friends objected, created, during those six months of trial, prior to the passage of this measure, great anxiety and apprehension. Still, all officers and agents, cooperating with the small military garrisons in their vicinity, had worked on energetically and hopefully to meet and overcome the increasing difficulties of the situation.

By November it was evident that the new law had had a salutary effect. Aside from its relation to the business interests of the Bureau, which were difficult to manage under the uncertain tenure of the previous law, it served to cheer the freed people throughout the entire South, to increase their confidence in the general Government, to give new stimulus and a firmer tone [283] to industrial and agricultural enterprises, and to impart strength to the hope of justice; a law less comprehensive and explicit would have been insufficient Under the new provisions Maryland and Kentucky were now embraced and assistant commissioners appointed. The freed people of those States had become an important consideration. Most of them were willing and anxious to labor; yet very many had required the protection of a powerful agency to shield them from the imposition of employers and cruelty of enemies, and the unfairness of courts constituted and held under old laws. When nothing else could be done, it was something for an accused negro to have at least the counsel of a Bureau officer as a friend present in court.

The most annoying things that I, as commissioner, encountered, and they were hitherto unceasing, were the complaints made to President Johnson against officers and agents and referred to me for examination and correction. Any agent who took the part of the freedmen against a Southern planter, especially one who had the hardihood to arrest a white man for misusing a negro, was traduced, and often, I am sorry to say, his discharge was brought about. The President was very anxious to be rid of every prominent officer who was reported to have been long the freedmen's friend. In his eyes assistant commissioners, such as Mr. Conway, Colonel Brown, Generals Whittlesey, Saxton, Samuel Thomas, and Absalom Baird, were too pronounced in behalf of those assailed; they seemed to be friends of the so-called carpet-baggers, i. e., immigrants from the North, and of Southern Unionists and negroes; and many subagents also were accused of a like attitude. They were too much the [284] advocates of their wards to suit the situation. As I was obliged to execute the law under the direction of his Excellency, little by little his power made itself felt. To give my work the utmost opportunity to succeed I came to the conclusion, first, that all Government agencies within a given State must work in harmony, and so I recommended to the President that the functions of the military commander and of the assistant commissioner in each State be exercised by the same officer. To this he gladly assented. It was early done in Virginia. General Alfred H. Terry, the new department commander, became also the assistant commissioner for that State. He took his predecessor in the Bureau, Colonel Brown, on his staff and so operated all Bureau work through him, and soon that arrangement prevailed throughout other departments. Next, I worked to make each military subdivision coincident with the Bureau subdistrict. Terry's department, the State of Virginia, was divided into eight subdistricts with an officer in charge of each. Then I carefully instructed subordinates that, touching all subjects of a military character, the agents were to be under the direction of State department commanders.

The Bureau officer acted in the same manner as an officer of engineers building a fort might do, reporting on all matters of construction directly to the chief of engineers at Washington, but at the same time being the engineer officer on the staff of a local commander.

Fortunately for me the Secretary of War, Mr. Stanton, and General Grant, the commander of all the geographical departments and garrisons, were friendly to my work; it was, therefore, not difficult to secure in that way unity of organization and action; [285] it was easy enough in and near all towns actually garrisoned, and in places which were reached by rail.

Perhaps the needs, the hopes, the fears, the failures, and such progress as was made in the Bureau work for 1866 may be best illustrated by some of the work before the courts that year.

General C. H. Howard, who had succeeded General Eaton in the District of Columbia and vicinity, found it next to impossible to get the courts to allow the testimony of colored witnesses anywhere in Maryland until the effect of the United States Civil Rights Law, recently enacted, which forbade such distinction, came into play. Upon a case of great outrage, committed by a white man upon a negro, where the Bureau agent brought the white man to trial and the white man was condemned and sentenced, an appeal was taken before Judge Bowie of the Maryland Court of Appeals, and the constitutionality of the Civil-Rights-Law called in question. Judge Bowie, to our joy, July 2d, decided that colored witnesses were competent, and that the Civil-Rights-Law in this respect was constitutional. After that happy decision warrants were issued on the testimony of negroes. But the agents now found another obstacle. Constables refused to serve subpoenas for such witnesses, and even when colored men did testify, the prejudice of jurymen gave little or no weight to their testimony.

In North Carolina General Robinson, now in command, delayed the transfer of cases for trial to the civil courts, especially those where whites had committed fraud, injury, or violence upon persons of color. In July the governor wrote him: “There now exists under the laws of this State no discrimination in the administration of justice to free persons of [286] color.” The general then directed the reference of all cases to the county and State authorities, with the single exception of the claims for wages due under contracts witnessed by Bureau officials. These admitted of no delay, and the agents adjudicated them as before. It was indeed better for both parties. But still in cases of neglect, where the civil tribunals failed to act, Bureau officers were directed to make arrests where the freedmen were concerned, and detain the criminals till a proper court should be ready to try them. The Bureau exhibit for this State for August was not very reassuring. Forty-nine cases were shown of assault, whipping, false imprisonment, shooting, and other outrages against blacks, with but one of a negro against a white man. Many more reports of such outrages were made directly to the civil authorities, embracing assault and battery, rape, church burning, arson, and murder. The civil courts, however, as a rule were keeping faith. The offenders had been required to give bonds and so held to answer the charges. General Robinson was sanguine of the future. He believed that after time enough had elapsed for new adjustments between the races “mutual confidence would be restored.”

General Tillson was a conservative and harmonizer, leaning possibly to the side of the white employers; he was this year of the opinion that the Georgia civil courts were disposed to do justice to the freed people, but unfortunately the jurors, selected from a class who hated the negroes, attached little weight to negro testimony. Even Tillson finally saw and believed that considerable time must elapse before the colored people could enjoy substantial equality before the law; yet the having a Bureau officer at hand to interpose as a [287] friend had so far affected the actions of white citizens that acts of injustice and oppression were less numerous. Planters looked to Bureau officers to make their laborers reliable; and freedmen sought their aid also to obtain their wages.

General Swayne, contrary to his first expectations, a little later found the Alabama legislators anything but fair and just. He said: “The vagrant law of Alabama operates most iniquitously upon the freedmen. In terms, the law makes no distinction on account of color, but in practice the distinction is invariable. I am satisfied that the law would be annulled if fairly tested. I have taken up three classes under it by habeas corpus, but in every case the persons were discharged for informality in the commitment without reaching the merits of the case.” So many grievances occurred that even Swayne, with whom the good governor sought to cooperate, was forced in several of the worst localities to reestablish Bureau courts.

General Absalom Baird in his last message in September indicated a bad outlook for Louisiana. Brutal conduct in distant parishes remained uncorrected for want of military force. The perpetrators were lawless and irresponsible white men; they were the terror of both property holders and laborers. They were countenanced by the community either through sympathy or fear. Baird added that the. Civil-Rights-Law was to some extent having a good effect, restraining those who had hitherto been disposed to treat United States laws with contempt. Several magistrates were under arrest for violating its provisions.

General Sheridan, following Baird in Louisiana, rather heightens the adverse picture: “Homicides are frequent in some localities; sometimes they are investigated [288] by a coroner's jury, which justifies the act and releases the perpetrator; in other instances, when the proof comes to the knowledge of an agent of the Bureau, the parties are held to bail in a nominal sum, but the trial of a white man for the killing of a freedman can, in the existing state of society in this State, be nothing more or less than a farce.”

In not a single instance, however, when contracts had been entered into between planters and freedmen in the mode prescribed by the Bureau, had a complaint been subsequently made by either party to the contract, while in a large proportion of other contracts bitter complaints were constant. The-reason was plain enough. In all those approved by a Bureau officer, the terms were first carefully explained to both parties; and the whole power of the Bureau would be afterwards exerted against the party attempting to violate an approved contract.

In Mississippi General T. J. Wood, an able division commander during the war, always of a conservative turn of mind, gave a statement of the condition of affairs which was not very encouraging. Grievous outrages had been committed. A class of citizens called “regulators” appeared in several States as if by concert of action; the fear of them in some parts of Mississippi was so great that peaceably disposed inhabitants were afraid to give the information necessary for their detection and punishment. The regulators shot freedmen without provocation, drove them, unpaid, from plantations and committed other crimes. So many outrages of this kind were perpetrated that General Wood at first wondered that the better portion of the community did not take decided measures against the guilty. [289]

The general, however, said in abatement: “We shall not do them (the whites) justice unless we remember that, with very few exceptions, they were fully persuaded that slavery was right and beneficial to the colored man, as it was profitable and pleasant to the ruling class. They felt injured by the emancipation; their profits and pride were assailed and destroyed. In the midst of the excitement, hurry, confusion, and active enmity of the times nine tenths of the white people could not be expected to attribute the change to anything but a spirit of revenge. ... It was to be expected that the ignorant, violent, and unprincipled portion of these people, being additionally demoralized by the war, should give vent to the evil within them by committing outrages. On the other side it can surprise no one that the freedmen should be somewhat unsettled, inclined to avoid labor to which all their lives had been devoted under stern compulsion, and that they should misapprehend their rights and duties.”

The deliberate murder April 30th of that year of a worthy officer, Lieutenant J. B. Blanding, Twenty-first Regiment Veteran Reserve Corps, while walking on the street at Grenada, Miss., and attempts upon the lives of other men who had been faithful and fearless in the discharge of their delicate and dangerous duties, gave rise to increased anxiety everywhere and seemed to necessitate an increase of military force.

General Clinton B. Fisk had good results in Tennessee in 1866. The State legislature took liberal action in matters of vagrancy, or apprenticing and contracts which affected the freedmen; they modified the old laws to conform to the Thirteenth Amendment of the Constitution and to the Civil-Rights-Law. Before [290] General Fisk, in September, was relieved by General J. R. Lewis, he took occasion by a circular, widely published, to transfer all cases to the civil officers elected by the people, to call their attention afresh to the United States laws involved, and to entreat them to lay aside all feelings of prejudice, in order that the State laws might be administered in such a manner as not to compel a return to military courts. We all believed then that greater security for the life and property of the freed people existed in Tennessee than in any other of the late Confederate States.

Kentucky had meanwhile been full of trouble. The “regulators” had been for some time committing horrible outrages in the southeastern districts. Old laws and old customs like flogging prevailed in many counties. The department commander, General Jeff. C. Davis, who also came to be the assistant commissioner for Kentucky, had been previously reported as hostile to negroes, so that I was fearful that matters there might grow worse. But I was greatly mistaken. Davis said: “The laws shall be executed at whatever cost.” He settled difficulties between the negroes and white men with satisfaction to both, and punished the lawless with such promptitude that even the bloody and much-feared “regulators” were obliged, where he could reach their haunts, to suspend their base work of terrorism which they had undertaken among the freedmen and their teachers.

General J. W. Sprague, most manly and fearless of men, in October of 1866 was no longer sanguine for Arkansas in the line of justice. The legislature did not grant the negroes their rights. He feared to give cases to State officers on account of their manifest prejudice and unfairness. He could not, he confessed, [291] carry out his Bureau instructions without the troops. Murders of freedmen and other crimes against them were on the increase. Civil authorities utterly failed to arrest and punish offenders. The clouds were growing thicker and thicker. There were many thefts, robberies, assaults, and murders; some of them of the most brutal and unprovoked character, where not a finger had been raised by citizens or law officers to bring the guilty parties to justice.

And yet the good General gave us a gleam of light when he reported that the freedmen were working well and abiding by their contracts in good faith. The Bureau officers still held control of the registration of laborers and supervised the contracts, so that the results in that quarter were promising.

The assistant commissioner in Virginia found some improvement in the feelings of the whites toward the freedmen, but alleged weakness and neglect on the part of State officials touching heinous crimes. Murders and robberies were committed and nobody was arrested and brought to trial except through the agency of United States officers, most of them of our Bureau.

In three counties it had been necessary to reestablish the Bureau courts to prevent insurrection among the freedmen, who threatened retaliation for the wrongs which they suffered from local civil courts.

General J. B. Kiddoo, the Texas commander, found little respect for any law in the northeast counties. The legislature had delayed the necessary legislation; freedmen could not yet testify in spite of the advent of the Civil-Rights-Law; great distinctions were constantly made in all dealings with them. His chief troubles consisted in his efforts to protect them from violence; he entreated for more troops for those remoter [292] districts where the greater number of outrages occurred. As in Arkansas, where the interests of the larger planters came in play, the Bureau agents became a help, a necessity. A lack of confidence existed between the planters and freedmen, until the assistant commissioner had successfully inaugurated a system of contracts by which the planters could place some reliance upon the steadiness of labor, and the freedmen have security for their pay.

These illustrations all through the South show our work in creating law-abiding communities in which fair local laws were slowly extending to the protection of negroes. Judicial proceeding was in a transition state everywhere and needed careful watching and continued experiment under friendly supervision, such as our officers uniformly gave. How much violence, fraud, and oppression, how much idleness, theft, and perhaps insurrection our agency prevented can never be measured. Other nations have not succeeded so well in relieving the shock to society when they were passing from slavery to freedom.

The schools were increasing and were in much better shape than in 1865 and yet there were only 965 organized schools, 1,405 teachers, and 90,778 pupils. We knew that there ought to be ten times as many. It was but a beginning — a drop in the bucket-a nucleus — an object lesson. The demonstration, however, showed that it was practicable to educate the children of negroes.

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