A Just and Lasting Peace: A Documentary History of Reconstruction

by John David Smith

  Our new Doctors of National law, who hold that the “Confederate States” were never out of the Union, but only insurgents and traitors, have become wiser than Grotius, and Puffendorf, and Rutherford, and Vattel, and all modern publicists down to Halleck and Phillimore. They all agree that such a state of things as has existed here for four years is public war, and constitutes the parties independent belligerents, subject to the same rules of war as the foreign nations engaged in open warfare.

  The learned and able Professor at Law in the Cambridge University, Theophilus Parsons, lately said in a public speech—

  “As we are victorious in war we have a right to impose upon the defeated party any terms necessary for our security. This right is perfect. It is not only in itself obvious, but it is asserted in every book on this subject, and is illustrated by all the wars of history. The rebels forced a war upon us; it was a long and costly and bloody war; and now that we have conquered them, we have all the rights which victory confers.”

  The only argument of the Restorationists is, that the States could not and did not go out of the Union because the Constitution forbids it. By the same reasoning you could prove that no crime ever existed. No man ever committed murder for the law forbids it! He is a shallow reasoner who could make theory overrule fact!

  I prefer to believe the ancient and modern publicists, and the learned Professors of legal science, to the extemporized doctrines of modern Sciolists.

  If “Restoration,” as it is now properly christened, is to prevail over “Reconstruction,” will some learned pundit of that school inform me in what condition Slavery and the Slave laws are? I assert that upon that theory not a Slave has been liberated, not a Slave law has been abrogated, but on the “Restoration” the whole Slave code is in legal force. Slavery was protected by our constitution in every State in the Union where it existed. While they remained under that protection no power in the Federal Government could abolish Slavery. If, however, the Confederate States were admitted to be what they claimed, an independent belligerent de facto, then the war broke all treaties, compacts and ties between the parties, and slavery was left to its rights under the law of nations. These rights were none; for the law declares that “Man can hold no property in man.” (Phillimore, page 316.) Then the laws of war enabled us to declare every bondman free, so long as we held them in military possession. And the conqueror, through Congress, may declare them forever emancipated. But if the States are “States in the Union,” then when war ceases they resume their positions with all their privileges untouched. There can be no “mutilated” restoration. That would be the work of Congress alone, and would be “Reconstruction.”

  While I hear it said everywhere that slavery is dead, I cannot learn who killed it. No thoughtful man has pretended that Lincoln’s proclamation, so noble in sentiment, liberated a single slave. It expressly excluded from its operation all those within our lines. No slave within any part of the rebel States in our possession, or in Tennessee, but only those beyond our limits and beyond our power were declared free. So Gen. Smith conquered Canada by a proclamation! The President did not pretend to abrogate the Slave laws of any of the States. “Restoration,” therefore, will leave the “Union as it was,[”]—a hideous idea. I am aware that a very able and patriotic gentleman, and learned historian, Mr. [George] Bancroft, has attempted to place their freedom on different grounds. He says, what is undoubtedly true, that the proclamation of freedom did not free a slave. But he liberates them on feudal principles. Under the feudal system, when a king conquered his enemy, he parceled out his lands and conquered subjects among his chief retainers; the lands and serfs were held on condition of fealty and rendering military service when required. If the subordinate chief rebelled, he broke the condition on which he held them, and the lands and serfs became forfeited to the lord paramount. But it did not free the serfs. They, with the manors, were bestowed on other favorites. But the analogy fails in another important respect. The American slave-holder does not hold, by virtue of any grant from any Lord paramount—least of all by a grant from the General Government. Slavery exists by no law of the Union, but simply by local laws, by the laws of the States. Rebellion against the National authority is a breach of no condition of their tenure. It were more analogous to say that rebellion against a State under whose laws they held, might work a forfeiture. But rebellion against neither government would per se have any such effect. On whom would the Lord paramount again bestow the slaves? The theory is plausible, but has no solid foundation.

  The President says to the rebel States: “Before you can participate in the government you must abolish Slavery and reform your election laws.” That is the command of a conqueror. That is Reconstruction, not Restoration—Reconstruction too by assuming the powers of Congress. This theory will lead to melancholy results. Nor can the constitutional amendment abolishing Slavery ever be ratified by three-fourths of the States, if they are States to be counted. Bogus Conventions of those States may vote for it. But no Convention honestly and fairly elected will ever do it. The frauds will not permanently avail. The cause of Liberty must rest on a firmer basis. Counterfeit governments, like the Virginia, Louisiana, Tennessee, Mississippi and Arkansas pretenses, will be disregarded by the sober sense of the people, by future law, and by the courts. “Restoration” is replanting the seeds of rebellion, which, within the next quarter of a century, will germinate and produce the same bloody strife which has just ended.

  But, it is said, by those who have more sympathy with rebel wives and children than for the widows and orphans of loyal men, that this stripping the rebels of their estates and driving them to exile or to honest labor, would be harsh and severe upon innocent women and children. It may be so; but that is the result of the necessary laws of war. But it is revolutionary, say they. This plan would, no doubt, work a radical reorganization in Southern institutions, habits and manners. It is intended to revolutionize their principles and feelings. This may startle feeble minds and shake weak nerves. So do all great improvements in the political and moral world. It requires a heavy impetus to drive forward a sluggish people. When it was first proposed to free the slaves and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.

  The whole fabric of southern society must be changed, and never can it be done if this opportunity is lost. Without this, this Government can never be, as it never has been, a true republic. Heretofore, it had more the features of aristocracy than of democracy. The Southern States have been despotisms, not governments of the people. It is impossible that any practical equality of rights can exist where a few thousand men monopolize the whole landed property. The larger the number of small proprietors the more safe and stable the government. As the landed interest must govern, the more it is subdivided and held by independent owners, the better. What would be the condition of the State of New York if it were not for her independent yeomanry? She would be overwhelmed and demoralized by the Jews, Milesians and vagabonds of licentious cities. How can republican institutions, free schools, free churches, free social intercourse, exist in a mingled community of nabobs and serfs; of the owners of twenty thousand acre manors with lordly palaces, and the occupants of narrow huts inhabited by “low white trash?” If the South is ever to be made a safe republic, let her lands be cultivated by the toil of the owners or the free labor of intelligent citizens. This must be done even though it drive her nobility into exile. If they go, all the better. It will be hard to persuade the owner of ten thousand acres of land, who drives a coach and four, that he is not degraded by sitting at the same table, or in the same pew, with the embrowned and hard-handed farmer who has himself cultivated his own thriving homestead of 150 acres. This subdivision of the lands will yield ten bales of cotton to one that is made now, and he who produced it will own it and feel himself a man.

  It is far easier and more beneficial to exile 70,000 proud, bloated
and defiant rebels, than to expatriate four millions of laborers, native to the soil and loyal to the Government. This latter scheme was a favorite plan of the Blairs, with which they had for awhile inoculated our late sainted President. But, a single experiment made him discard it and its advisers. Since I have mentioned the Blairs, I may say a word more of these persistent apologists of the South. For, when the virus of Slavery has once entered the veins of the slaveholder, no subsequent effort seems capable of wholly eradicating it. They are a family of considerable power, some merit, of admirable audacity and execrable selfishness. With impetuous alacrity they seize the White House, and hold possession of it, as in the late Administration, until shaken off by the overpowering force of public indignation. Their pernicious counsel had well nigh defeated the reelection of Abraham Lincoln; and if it should prevail with the present administration, pure and patriotic as President Johnson is admitted to be, it will render him the most unpopular Executive—save one—that ever occupied the Presidential chair. But there is no fear of that. He will soon say, as Mr. Lincoln did: “YOUR TIME HAS COME!”

  This remodeling the institutions, and reforming the rooted habits of a proud aristocracy, is undoubtedly a formidable task, requiring the broad mind of enlarged statesmanship, and the firm nerve of the hero. But will not this mighty occasion produce—will not the God of Liberty and order give us—such men? Will not a Romulus, a Lycurgus, a Charlemagne, a Washington arise, whose expansive views will found a free empire, to endure till time shall be no more?

  This doctrine of Restoration shocks me. We have a duty to perform which our fathers were incapable of, which will be required at our hands by God and our Country. When our ancestors found a “more perfect Union” necessary, they found it impossible to agree upon a Constitution without tolerating, nay, guaranteeing, Slavery. They were obliged to acquiesce, trusting to time to work a speedy cure, in which they were disappointed. They had some excuse, some justification. But we can have none if we do not thoroughly eradicate Slavery and render it forever impossible in this republic. The Slave power made war upon the nation. They declared the “more perfect Union” dissolved—solemnly declared themselves a foreign nation, alien to this republic; for four years were in fact what they claimed to be. We accepted the war which they tendered and treated them as a government capable of making war. We have conquered them, and as a conquered enemy we can give them laws; can abolish all their municipal institutions and form new ones. If we do not make those institutions fit to last through generations of freemen, a heavy curse will be on us. Our glorious, but tainted republic has been born to new life through bloody, agonizing pains. But this frightful “Restoration” has thrown it into “cold obstruction, and to death.” If the rebel States have never been out of the Union, any attempt to reform their State institutions, either by Congress or the President, is rank usurpation.

  Is then all lost? Is this great conquest to be in vain? That will depend upon the virtue and intelligence of the next Congress. To Congress alone belongs the power of Reconstruction—of giving law to the vanquished. This is expressly declared by the Supreme Court of the United States in the Dorr case, 7th Howard, 42. The Court say, “Under this article of the Constitution (the 4th) it rests with Congress to decide what government is the established one in a State, for the United States guarantees to each a republican form of government,” et cetera. But we know how difficult it will be for a majority of Congress to overcome preconceived opinions. Besides, before Congress meets, things will be so inaugurated—precipitated—it will be still more difficult to correct. If a majority of Congress can be found wise and firm enough to declare the Confederate States a conquered enemy, Reconstruction will be easy and legitimate; and the friends of freedom will long rule in the Councils of the Nation. If Restoration prevails the prospect is gloomy, and new “lords will make new laws.” The Union party will be overwhelmed. The Copperhead party has become extinct with Secession. But with Secession it will revive. Under “Restoration” every rebel State will send rebels to Congress; and they, with their allies in the North, will control Congress, and occupy the White House. Then restoration of laws and ancient Constitutions will be sure to follow, our public debt will be repudiated, or the rebel National debt will be added to ours, and the people be crushed beneath heavy burdens.

  Let us forget all parties, and build on the broad platform of “reconstructing” the government out of the conquered territory converted into new and free States, and admitted into the Union by the sovereign power of Congress, with another plank—“THE PROPERTY OF THE REBELS SHALL PAY OUR NATIONAL DEBT, and indemnify freed-men and loyal sufferers—and that under no circumstances will we suffer the National debt to be repudiated, or the interest scaled below the contract rates; nor permit any part of the rebel debt to be assumed by the nation.”

  Let all who approve of these principles rally with us. Let all others go with Copperheads and rebels. Those will be the opposing parties. Young men, this duty devolves on you. Would to God, if only for that, that I were still in the prime of life, that I might aid you to fight through this last and greatest battle of freedom!

  “A FREEDMEN’S BUREAU OFFICER REPORTS ON CONDITIONS IN MISSISSIPPI”

  (September 1865)

  In March 1865, Congress established the Bureau of Refugees, Freedmen, and Abandoned Lands (popularly known as the Freedmen’s Bureau), a large-scale federal agency authorized to supervise and manage the substantial amount of war-torn abandoned territory and to assist refugees and freedpeople during the transition from war to peace and from slavery to freedom. Freedmen’s Bureau agents in each state distributed food, helped establish schools, adjudicated legal cases, and assisted former slaves in negotiating labor contracts with their former masters, now their employers. In September 1865, this Freedmen’s Bureau officer, stationed in Vicksburg, emphasized the unwillingness of whites to accept emancipation and their determination to keep the blacks as close to slaves as possible.

  In the immediate vicinity of our Military Posts; and in locations that can readily be reached by the officers of this Bureau, the citizens are wary of abusing the blacks; they are so because this Bureau has arrested and punished people committing such offences, and the manner in which such cases have been dealt with, has shown people that abuse and imposition will not be tolerated; and that each offence are sure to be punished . . .

  But in remote localities those that cannot well be reached by officers of the Bureau the blacks are as badly treated as ever. Colored people often report themselves to the Sub. Commissioners with bruised heads and lacerated backs and ask for redress.

  In portions of the northern part of this Dist[rict] the colored people are kept in slavery still.

  The white people tell them that they were free during the war but the war is now over and they must go to work again as before.

  As to protection from the civil authorities there is no such thing outside of this city. There is not a justice of the peace or any other civil officer in the District, 8 counties of which I have charge that will listen to a complaint from a Negro.

  And in the city since the adjudication of these cases has been turned over [to] the mayor the abuse of and impositions upon Negroes are increasing very visibly for the reason that very little if any attention is paid to any complaint of a negro against a white person. Negro testimony is admitted but judging from some of the decisions it would seem it carries very little weight.

  In several cases black witnesses have been refused on the grounds that the testimony on the opposite side—white—could not be contravened and it was useless to bring in black witnesses against it . . .

  “FROM EDISTO ISLAND FREEDMEN TO ANDREW JOHNSON”

  (October 28, 1865)

  In September 1865, President Johnson announced his policy of restoring land to pardoned former Confederates, overturning a previous policy of leasing forty-acre coastal plots to freedpeople. The following month, a three-man committee wrote
on behalf of freedmen on Edisto Island, South Carolina, urging the president to reverse his policy. Freedmen’s Bureau commissioner General O. O. Howard was forced to implement the president’s policy.

  TO THE PRESIDENT OF THESE UNITED STATES

  We the freedmen of Edisto Island South Carolina have learned from you through Major General O O Howard commissioner of the Freedmans Bureau, with deep sorrow and painful hearts of the possibility of government restoring these lands to the former owners. We are well aware of the many perplexing and trying questions that burden your mind and do therefore pray to god (the preserver of all and who has through our Late and beloved President (Lincoln) proclamation and the war made us A free people) that he may guide you in making your decisions and give you that wisdom that cometh from above to settle these great and Important questions for the best interests of the country and the Colored race. Here is where secession was born and nurtured. Here is w[h]ere we have toiled nearly all our lives as slaves and were treated like dumb Driven cattle. This is our home, we have made these lands what they are. We were the only true and Loyal people that were found in possession of these lands. We have been always ready to strike for liberty and humanity yea to fight if needs be to preserve this glorious union. Shall not we who are freedman and have been always true to this Union have the same rights as are enjoyed by others? Have we broken any Law of these United States? Have we forfeited our rights of property in Land? If not then! are not our rights as A free people and good citizens of these United States to be considered before the rights of those who were found in rebellion against this good and just Government (and now being conquered) come (as they seem) with penitent hearts and beg forgiveness for past offences and also ask if their lands cannot be restored to them? Are these rebellious spirits to be reinstated in their possessions and we who have been abused and oppressed for many long years not to be allowed the privilege of purchasing land But be subject to the will of these large Land owners? God forbid. Land monopoly is unjurious to the advancement of the course of freedom, and if Government does not make some provision by which we as freedmen can obtain A Homestead, we have not bettered our condition.