Churchill then asked for supporting letters, including one from Judge J. H. Bell, one of the visitors to the Falls Plantation shortly after secession. Bell fulfilled Churchill’s request and Governor Hamilton received the application, but he did not write his endorsement and forward the application to Washington until March 29, 1866.
Texans also took steps in 1866 to formally rejoin the Union by electing delegates to a constitutional convention. Conservative Democrats, who opposed Reconstruction, ran on their history as slaveholders and Confederate soldiers and won two-thirds of the ninety seats at the convention. A. J. Hamilton, Johnson’s appointed provisional governor, reported to the White House that despite the many “violent and impractical men” elected, he felt there was still a chance the convention would pass an acceptable state constitution and take the steps necessary to rejoin the Union.
White landowners, though, didn’t like the change the Union was forcing on them and they became particularly frustrated with Gregory and his Freedmen’s Bureau agents insisting they treat blacks equally.26 Gregory didn’t help matters with his tone, as seen in a letter to Benjamin Harris, a grand jury foreman in Panola County, who had complained about how blacks were behaving:
While from by far the larger part of the state, we learn by the most ample testimony that the blacks are the most docile, industrious, orderly, free from serious crime, and with all the substratum that goes to make the good citizen.
The same incitements that quicken the industry of other men in free societies are felt by them. Such treatment furnishes all the incentive they need though they are not over anxious to work for nominal wages with the prospect of being defrauded even of their wages as has happened to thousands during the year just past.
In those counties where the people are well inclined toward the Negro when they comprehend that a narrow and unjust policy toward them does not pay, he is rendering faithful Services for wages and doing better work than the lash could whip out of him, the business goes bravely on.
If in your locality, the laborer refuses to work it may be because though slavery be dead its collateral influences still exist and survive, and new inducements have not taken the place of the lash and the chain. It may be that the planter as well as the Negro has not yet learned what free labor means.27
The planters wrote dozens of complaints to President Johnson, who needed white southern planters to win reelection and therefore wanted their voting rights restored as quickly as possible. Johnson relieved Gregory of duty on May 14, 1866.28
Gregory was replaced by Gen. Joseph B. Kiddoo, a twenty-six-year-old Pennsylvanian who had fought at Antietam, Fredericksburg, and Chancellorsville. He had served in the Sixth U.S. Colored Infantry and had suffered severe leg and spinal wounds, which left him in chronic pain.
Kiddoo placed a greater emphasis on building schools, and, like his predecessor, sought more military staff and money to expand operations. It didn’t take long for Kiddoo to conclude that only force would compel whites to respect blacks. Kiddoo asked Washington for more authority to arrest white men who committed felonies against blacks, because, he said, the local courts were “worse than a farce.”29
Instead of more resources, though, Kiddoo saw his cadre shrink. Most of his agents were volunteer army officers serving on temporary assignment. In the summer of 1866, the War Department began decommissioning volunteer regiments, and half of Kiddoo’s agents faced immediate discharge. With no bureau agents in the field and no troops to back them up, he could do little to stop whites from imposing slavery by another name.30
Meanwhile, the white delegates at the state constitutional convention acted to formalize the subordination of blacks, and federal officials openly wondered if the delegates would pass the laws Congress had declared necessary to rejoin the Union. Those included renouncing secession; ratifying the Thirteenth Amendment, which would abolish slavery; repudiating the Confederacy’s debts; and granting blacks equal rights.31 But a new political coalition had formed and became a majority at the convention, putting the whole process in jeopardy.
The Conservative Unionists were mostly men who had opposed secession but had ended up supporting the Confederacy once the war started. They drafted a constitution that limited blacks to testifying only in court cases that involved them, denied state funds for black schools, banned interracial marriages, and prohibited blacks from holding state office. These delegates also didn’t want to count blacks when apportioning political districts, denying them equal representation. The new constitution went before voters in an up-or-down vote on June 25, when they would also cast ballots for a new governor and legislature. True Unionists put up a halfhearted campaign for their gubernatorial candidate, Elisha Pease, and called for a no vote on the constitution, although they knew they couldn’t win. Everyone knew that the vast majority of Texans still held to Confederate principles.32
When the results came in, the Conservative Unionist candidate, James Throckmorton, became governor, winning 49,277 votes to Pease’s 12,068. Voters also overwhelmingly approved the new constitution.33
The new legislature, dominated by Confederate veterans and Conservative Unionists, took power on August 6, 1866, and swore Throckmorton in as governor three days later. In his inaugural address, Throckmorton set out a strategy for Texas to rejoin the Union, while at the same time avoiding most of the legal reforms that northern Republicans, who controlled Congress, had demanded. He urged lawmakers to do nothing that might anger northerners, but at the same time he opposed any legislation that might satisfy them.34
THE PRICE OF OVERREACH
Unusually heavy June rains in 1866 encouraged grass to grow in the cotton fields, where it strangled the plants and reduced output. In past years, slaves had hoed the fields throughout June and July, but by 1866, planters couldn’t find enough workers. African-American men were demanding the best-possible contracts with the most trustworthy planters. Whites blamed the workers for the bad crop, insisting that freedmen didn’t work as hard as they had as slaves. Planters also accused the Freedmen’s Bureau of meddling in their relationships with blacks.35
Kiddoo and his agents, however, were actually forcing black laborers to fulfill their contracts and preventing labor recruiters from luring blacks to break their contracts in the middle of the planting season. The state just didn’t have enough workers, despite paying the highest wages anywhere in the South. Kiddoo decided to recruit freedmen from other states, encouraging them to move to Texas.36
Many freedmen asked to share the crop rather than earn wages, with the portion of the crop depending on how much the African-American brought to the table. If all the black man could offer was labor, then they earned as little as one-quarter of the crop. If they were entirely self-sufficient, they could demand three-quarters. Because many black women wanted a nuclear family and a lifestyle similar to that of white women, their decision to stay home helped shrink the labor pool. For the first time, African-Americans enjoyed a measure of control over their lives. Many whites resented these changes. Landowners hired white gangs to hunt down blacks who left the plantation, and planters started using corporal punishment again.37 White landowners also demanded the government do something about blacks becoming what they considered “uppity.” Texans looked to other southern states for solutions and decided to use the so-called Black Codes. They had no intention of giving blacks equal rights.38
Rather than vote against the Thirteenth Amendment, Texas lawmakers simply ignored it. They knew enough states would ratify the amendment and make it law, so they saw no point in rejecting it. The Fourteenth Amendment, on the other hand, violated the Conservative Unionists’ most fundamental positions. While in modern times, the amendment is known for the equal-protection clause and the definition of citizenship, in 1866, southerners considered it an attempt to deny power to those who had participated in the Confederate cause.39 Section 3 of the amendment reads:
No person shall be a Senator or Representative in Congress, or elector of President
and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
The amendment barred politicians who held office in the Confederacy from serving again, unless two-thirds of Congress approved, a test few of the South’s top politicians could pass and none would take. But by rejecting the amendment, Texas lawmakers fired the first shot in a protracted battle with the Republican-controlled Congress in Washington. The legislature’s passage of the Black Codes was the second volley.
The first of the Black Codes concerned apprenticeships. The code allowed parents, or the county government, to give blacks under the age of twenty-one to a white man who could then use the apprentice’s labor any way he chose. An apprenticeship granted the master permission to use force to compel the apprentice to work and to capture an apprentice who ran away. County authorities used the law to place teenagers, orphans, or homeless black children on private plantations, where they provided free labor.40
The Black Codes’ contract law largely mirrored the regulations used by the Freedmen’s Bureau. Employment contracts lasted at least a month and employers could set the conditions and establish a code of behavior, such as no swearing or leaving the farm without permission. The code allowed employers to deduct pay for disobedience, impudence, or absence.41
The most important of the codes, though, was the vagrancy law. This allowed authorities to arrest anyone who had no visible means of support or anyone who failed to sign a labor contract. It also allowed judges to levy fines for vagrancy. In practice, a local justice of the peace usually placed the vagrant, who was most often black, on a farm to work off the fine under the same rules as an apprentice.42
On civil rights, the legislature guaranteed blacks property rights and prohibited discrimination in criminal cases. However, it banned blacks from voting, from serving on juries, from testifying in cases involving whites, and from marrying whites.
Texas lawmakers pronounced their version of the Black Codes a moderate approach, compared to that of other southern states, and passed the package of laws on August 9, 1866.43
President Johnson, anxious to guarantee himself the southern vote, declared Texas “reconstructed” on August 20. His order formally declared the war over and set the stage for Texas to return to the Union. But Texas lawmakers in Austin had barely gotten started.
The Conservative Unionists also redrew state political boundaries. Redistricting eliminated any chance for True Unionists to win an elected office and eliminated two district courts where Unionist judges presided. They also passed a homestead law that gave 160 acres of public land to any white man who settled in Texas.44
After President Johnson’s declaration, Governor Throckmorton argued the federal occupation of Texas was over and demanded that the Freedmen’s Bureau leave immediately. Kiddoo and federal officials, understanding that the matter was far from resolved in Washington, said they intended to stay and watch how well state officials protected the rights of blacks.45
In September, the bureau headquarters in Washington sent instructions to their agents in the field. While state courts could rightfully assert their authority over most matters, headquarters said contracts and civil matters involving former slaves remained the purview of the bureau. If a bureau agent felt state authorities were not protecting the rights of blacks, the agent was obligated to intervene, using federal troops if necessary. Headquarters authorized subagents to set up independent tribunals that included the bureau agent and two other judges, each chosen by the parties involved in the dispute.46
In response to the Black Codes, Kiddoo instructed subagents to stick to the federal rules. Agents in the field were also reporting growing violence against blacks and many cases of farmers cheating their workers.47
CONGRESS REACTS
When the four new congressmen and two senators from Texas reached Washington in October, they discovered that northern Republicans were unimpressed with their résumés or the state legislature’s new laws. Both senators had supported secession and three of the congressmen had served in either the Confederate Congress or the rebel army. The Republican-controlled Congress, which opposed Johnson, refused to recognize any of the Texas representatives and declared the state’s readmission premature.48
Texas, though, wasn’t the only former Confederate state that Congress considered unreconstructed. Northern lawmakers understood Johnson was trying to save his political career by rushing the South back into the Union. But following a four-year war that left more than 750,000 Americans dead, northerners would not allow a return to the status quo.49
SETTLING THE TOMLINSON ESTATE
Sarah Tomlinson reported her progress to the Falls County Probate Court on December 31, 1866. She had sold her cotton but had not raised enough to pay off all the debts. She was not alone in her disappointment with the Texas cotton crop of 1866.50 Underdeveloped bolls and a cotton-worm infestation cut production by a third, and new cotton plantations in Egypt and India drove down prices by 20 percent, devastating Texas planters.51
Sarah owed more than a dozen creditors $17,707, but her farm brought in only $3,000 from 80 bales of cotton, $70 from 500 pounds of wool, and $100 from 150 bushels of corn.52 That was little more than the $2,600 a year it took to feed her family and pay her black workers. She needed the court’s permission to sell some of her property.53
The court allowed her to sell a few hundred dollars’ worth of goods, and Sarah whittled away at her debt. The bulk was still owed to Churchill and his son-in-law, Zenas Bartlett, who wanted to give her a chance to pay them over time with proceeds from the plantation. Sarah was under no pressure to sell everything at once.54
In Marlin, General Kiddoo relieved Asa Delano of his duties as a bureau agent and postmaster in January 1867 and sent F. B. Sturgis not only to replace him but to arrest him for fraud.55 While in office, Sturgis took careful notes concerning several violent attacks on freedmen and either sent them to his headquarters in Galveston or intervened with the company of cavalry assigned to him.
Delano’s allies in Falls County did their best to stymie Sturgis, but some whites cooperated and reported attacks on freedmen. A. M. Hodges described one attack in East Texas after hiring freedmen in Louisiana and bringing them to Falls County.56 Other whites remained paranoid about what was happening in the new black communities popping up across the county. In March, Sturgis received a letter from Robert Calvert, who wrote, “From some information I have received from a freedman I think there is some danger of an insurrection among the Negroes in our part of the county. He was told that there were a company organizing at the sound of a horn. This might not be so, I write this to keep you and others [apprised] on this I heard.”57
When Sturgis went to the freedmen’s colony, he discovered the black men were creating an armed neighborhood watch to protect their women from white men assaulting them in their new village.58
Sturgis dealt with reports of wrongdoing, ranging from a white child striking a black child to lynchings. But the biggest problem for the freedmen were whites not honoring their contracts. The complaints read like the docket from a small claims court.
One dispute Sturgis adjudicated involved James Eldridge Tomlinson. A freedman, apparently a former Tomlinson Hill slave named Ed Shields, accused James on April 3, 1867, of failing to pay a debt. Sturgis sent James a letter: “Sir, Ed Shields makes complaint to this office that you [have] a mare purchased from him in the summer of last year, please make settlement with him or appear at this office and show cause why you do not do it.”59 When James failed to pay, Sturgis held a hearing at his office on Marlin’s ma
in square ten days later. His notes read: “Ed Shields states that James Tomlinson bought a horse from him in the summer of 1866 to be paid for in corn 35 bushels in the full, when made, and he now refuses to pay for him: 35$. Unsettled.”
There are no records showing whether James ever paid the debt, but the Tomlinsons had trouble dealing with their former slaves. On May 23, 1867, Sarah Tomlinson asked Sturgis to order the freedmen on Tomlinson Hill to work. While the details are sparse in Sturgis’s records, Sarah filed a complaint against twelve men representing the freed families on the Hill. Among those listed are Milo Tomlinson and “2 freed boys,” one of whom may have been his eldest son, Peter, who was eighteen years old. The reason for her complaint is listed as “contract,” which presumably means she didn’t think they were living up to their part of the bargain.60 Sturgis did not record how he settled the dispute, but Milo’s family remained on Tomlinson Hill for another 150 years. The other freedmen’s families in the complaint, the Magees, Baileys, and Johnsons, still lived on the Hill in 2014.
Most white planters took the economic crisis of 1867 as an excuse not to pay their black employees or they looked for any excuse to argue the freedmen had broken the contract. If the white landowner could make a convincing case, local officials would declare that the worker must forfeit his or her pay. Some planters hired white gangs to show up at the plantation after the harvest and threaten to kill any black person who did not leave. The landowner could then claim the workers left without permission and shouldn’t receive their pay. Other landowners simply refused to pay the black workers and threatened to kill them if they complained. Whites also attacked black schools or any institution that attempted to fight for the workers’ rights. In those rare instances where a worker convinced a court to hear a complaint for lack of payment, state law forbade blacks from testifying in cases involving whites, or from serving on juries. The whites always won in civil court, but they usually lost before the bureau agent’s tribunal.61
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