On February 21st, 1854, Republican Charles Sumner addressed the US Senate on the subject of slavery. He was specifically talking about the motion to repeal the ban on slavery north of 36o 30′, which would allow for it in places like Missouri, but his wording was dramatic and expansive in its condemnation of the entire system, the results of which he described thus: “the whole social fabric is disorganized; labour loses its dignity; industry sickens; education finds no schools; and all the land of slavery is impoverished.”1 Slavery was antithetical to the concept of democracy, because it assumed a certain subset of humanity were incapable of self-government. That it was legal was off-set by the immorality of it “though mitigated often by a patriarchal kindness, and by a plausible physical comfort”. Sumner had no use for slaveowners, even kind ones who felt themselves to be motivated by genuine affection for their slaves. Though their views were uncommon at the time, Sumner and his colleagues were to successfully win a war with their rhetoric, by claiming the moral high ground and preventing the Confederacy from gaining allies in the international community, most members of which had already rejected slavery as inhumane and uncivilized. By taking a stand against slavery, the North was able to justify what would have otherwise been simply a complicated legal issue of state autonomy. In this case, the morality overrode the legality. The problem of legality vs morality was to continue in the aftermath of the war, as the still-divided nation continued to battle itself using legislation instead of gunpowder and lead.
Abraham Lincoln was a politician, first and foremost. Though he found slavery distasteful on a personal level, his regard for the political process ensured that he would align himself with whatever allies would further his goal of preserving the Union and denying secession. During the war, this meant he was allied with the largely anti-slavery Republican party and the handful of Unionist Democrats, but as early as 1863, he was aware that emancipation would create as many problems as it would solve. His ten percent plan, overseen by presidential-appointed military governors, required that each state accept emancipation, and that a minimum of ten percent of voters in each state swear loyalty oaths to the United States. This was seen as too generous by many in the North because it was designed to preserve southern statehood and allow for the easy reintegration of rebel states back into the Union.2 It also frustrated and alienated many in the Republican party.
Lincoln’s assassination at first seemed like a convenient tragedy3, as former vice president Andrew Johnson was known to be less flexible and willing to compromise and had seemed a risky appointment as military governor of Tennessee due to fears that he was too rigid and embittered to handle the delicate task of restoring civilian government in the war-torn state.4 However, Johnson’s hard-line opposition toward the Confederacy rested on his hatred of the planter aristocracy, who he saw as having dragged everyone else into the war in order to preserve a society in which black labour was used to oppress poor whites.5 Johnson himself had risen from the ranks of the urban poor, learning to read only after his apprenticeship to a tailor at age ten. As a former slaveowner and supporter of slavery, his views on blacks were paternalistic at best, and his policies were to reflect this.6 Rather than allying with the radical Republicans, Johnson proved to be more rigid in his insistence on Lincoln’s Unionist policy than the tactful and politically savvy Lincoln had been7, and his Presidential Reconstruction more forgiving toward the South– Johnson required each state to repeal secession and accept emancipation, but no loyalty oaths were required apart from military and political leaders being expected to appeal for pardons, and there was to be no federal interference in political and economic affairs.8 Congress was out of session until December, allowing Johnson to bypass any Republican objections. The morality of ensuring true and enduring freedom for former slaves was simply not a priority for Johnson, and any concessions made to Republican demands on behalf of freedmen were simply appeasement.9
Challenges to emancipation came almost immediately. Guided by paternalistic benevolence, Johnson encouraged states to pass Black Codes, which were intended to clearly outline the rights and responsibilities of freedmen. While such codes guaranteed basic rights such as the right to buy and sell property, sue and be sued, and the right to marry, they also contained clauses reminiscent of Northern vagrancy laws, under the assumption that blacks were naturally inclined to vagrancy and criminal behavior unless properly supervised by whites.10 This gave justification to men like Joseph S. Fullerton, who upon taking over the Louisiana Freedman’s Bureau in October of 1865, closed the black orphanage and apprenticed the children to white masters. Blacks in New Orleans who could not provide written proof of employment were arrested as vagrants and idlers. Florida Bureau head Thomas W. Osbourne gave orders to prevent blacks from “collecting about towns, military posts, railroad depots, or in isolated communities, with an apparent intention to escape labour on the plantations.” Memphis saw regular roundups that same fall, with patrols openly harassing school children with books in hand, telling them they should be picking cotton. And although General Davis Tillson had no qualms about referring to the Memphis freedmen under his jurisdiction as “lazy worthless vagabonds”, he still found it necessary to establish a minimum wage for black work contracts, due to white employers’ unwillingness to believe that emancipation really did mean no more slavery.11 Even when wages were reasonable, they were frequently unpaid. Courts were unreliable in their enforcement of wage claims when landowners refused to pay black workers, and one Georgia Freedman’s Bureau agent in 1868 reported “I now hold nearly 100 bags of cotton in the warehouses of this city which I have seized for the payment of the hands that produced it.” Although the work contract system was successful in quickly stabilizing the workforce, the situation was not satisfactory to anyone. Bureau agents failed to comprehend the racial antagonism and psychological scars left by slavery, trying to persuade planters and labourers that under Northern capitalism, their interests were identical.12 Anna Dickinson reported that as late as 1875 that there was a common expectation among white southerners that a Democratic president would see them paid for their slaves.13 In some areas of the South there was a state of undeclared war as landowners tried to regain possession of their property as per Johnson’s policies from blacks who had planted crops on it, as per Sherman’s Field Order 15 which permitted black refugees to set up homesteads on deserted and confiscated plantations.14 The absence of black voting rights enabled racist legislation to pass virtually unchallenged, with the result that many freedmen found themselves effectively re-enslaved either through unfair work contracts or through imprisonment under vagrancy laws and being “put out” on work gangs. Northern press, especially that of a Republican bent, saw through this immediately. The Chicago Tribune, in response to the legislation in Mississippi, wrote “We tell the white men of Mississippi that the men of the North will convert the State… into a frog pond before they will allow such laws to disgrace one foot of soil in which the bones of our soldiers sleep and over which the flag of freedom waves.” There is a certain degree to hypocrisy here, since only five northern states permitted blacks to vote in 1865. Johnson’s response to the black codes seemed to be that of regret, but for all his willingness to deal with black leaders and hear their grievances, he did not seem to think it necessary to reign in the white legislatures.15
The October and November elections of 1865 had shown a truly impressive number of former Confederates elected to legislative positions, including a decent number of men who had not been pardoned yet and thus technically were not permitted to hold office. Johnson tried to prevent the swearing in of Confederate General Benjamin G. Humphreys (labelled “one of the most conservative men in the State”) by stalling his pardon, but gave in three days after election day upon realizing that Mississippi had voted him in as governor anyway.16 Once Congress returned, Republicans began planning their counterattack on Southern legislation. There was an attempt at combining conservatives among both parties into a National Union Party.17 It did not go well, which allowed Republicans to reorganize the South into ten military districts, with Radicals stipulating that universal male suffrage (including blacks) be used as a requirement for regaining statehood. Union soldiers were to remain in the South to support and enforce the Federal Freedmen’s Bureau.18 Early in 1866, when the Freedman’s Bureau was set to expire one year after its initial set-up, Johnson gave a speech to support his intent to veto an extension of the Bureau, based on reports of corruption and mismanagement. He suggested that long-term support for freedmen would “create an immense patronage machine”, and that education and financial support should come from the states, communities, and private charities, with protection provided by the military. He finished, in true Jacksonian fashion, by protesting the expense.19
The Fourteenth Amendment (otherwise known as the Civil Rights Act) sought to undo the damage of the black codes and cut down on the increasing reports of violence and injustice against southern blacks. Proposed and promoted by Republican moderates, it was four months in the drafting due to the complicated nature of negotiations and compromises even among Republicans, and comprised the beginning of Congressional Reconstruction. The president did not seem to object to it, but he also refused to indicate any backing for it, and when it was presented to on May 1st 1866, he made it clear that he disliked it, while the reactions of his cabinet ranged from “very reserved” about certain aspects, to full-on opposition.20 The amendment was fairly moderate in scope. It delineated black Americans as full citizens, with full and equal protection under the law, the right to make and enforce contracts and to sue and act as witnesses in court. The issues of black suffrage and Confederate punishment were skirted, though the amendment did require that states that denied the right to vote to adult male citizens would have their representation reduced, and that no person could hold federal or state office who had taken an oath to support the constitution and then engaged in rebellion unless Congress were to grant a pardon. The amendment was to be enforced by the president and the courts, whose powers were broadened for the purpose.21 Republicans wanted the amendment put in place as a requirement for the readmission of former Confederate states while the radicals saw it as the first step toward fundamental change in the social make-up of the old South, and one that was required to overturn the Black Codes and protect the freedmen from being legislated back into a slavery-like condition.22 Johnson objected to the bill because he didn’t think blacks were ready and qualified for full citizenship, and raised the spectre of interracial marriage as one of the evils that might be unleashed should the Civil Rights Act pass. He also claimed that he was following the dictates of the Constitution in refusing to impose black suffrage without the approval of the current (white, mostly racist) voters.23 Johnson had a mixed history on the subject of black suffrage. He had, in August of 1865, pressured the governor of Mississippi to extend voting rights to blacks who could read and write and/or owned property valued at at least $250. Not enough pressure, certainly, because the governor quietly passed responsibility for it to the legislature and the legislature proceeded to ignore it.24 A New Orleans newspaper defanged Johnson’s support for limited black suffrage by claiming that he did so “with a wink of the eye”. In talking to a Boston newspaper publisher that fall, Johnson said that if he intervened to force black suffrage in the south, he might also do so in the north, but he also insisted that universal black suffrage would lead to a “war of races” and advocated for suffrage for Union veterans first, followed by those who could read and write, and last for those who met property qualifications.25 It is here we see the hypocrisy inherent to Jacksonian democracy– populist rule and universal suffrage, but only for white men. Everyone else was required to prove themselves worthy of participation in government, while white men were assumed worthy simply on the basis of gender and skintone. At least the old Federalist party had been transparent in their discrimination, and their discrimination had been based on the idea that those with wealth and property were more likely to vote and govern in an intelligent manner. Jacksonians would cry elitism while simultaneously insisting that they deserved more rights than others.
In spite of his lukewarm waffling, meetings with black leadership in 1865 show that Johnson was willing to listen to blacks, and they in turn felt comfortable dealing with him.26 On February 7th, 1866, Johnson received an unexpected visit from Frederick Douglass and some of his colleagues from the equal rights convention. According to the published account, the visit prominently featured a dialogue between Douglass and Johnson on the subject of black-white relations, specifically on the subject of suffrage. Douglass tried to explain that the president held “the power to save or destroy us”27 with the power to vote, and told Johnson that by refusing to fully support black suffrage, “You enfranchise your enemies and disfranchise your friends.” Johnson’s response: “I might go down to the ballot-box to-morrow and vote directly for universal suffrage; but if a great majority of the people said no, I should consider it would be tyrannical in me to attempt to force such upon them without their will. It is a fundamental tenet in my creed that the will of the people must be obeyed.”28 A possibly true anecdote reports that after Douglass and the others had left, Johnson said to his secretary “Those d—-d sons of b—–s thought they had me in a trap! I know that d—-d Douglass; he’s just like any nigger & he would sooner cut a white man’s throat than not!”29 True or not, Johnson made no secret of it that he did not consider blacks equal, and in treating with them, he treated them like children in need of guardianship and guidance. The day after the interview with Douglass, he reportedly declared that universal suffrage would make things worse for blacks because it would embitter white Southerners against them and “result in great injury to [their] prospects”.30 He was not atypical in this view. On her 1875 lecture tour of the South, Anna Dickinson wrote of an argument between herself and Elizabeth Van Lew, a Virginian society lady and Unionist spy, who was at the time serving as Postmistress in Richmond. Van Lew insisted that the Enforcement Act (which protected access to public accommodations and facilities and the right to serve on juries) was critical for black civil rights. Dickinson was just as insistent that blacks did not want it, had their own churches, societies, amusements, etc. and that it would prompt violent backlash from whites.31 Dickinson’s view seems to have been prophetic, as it was followed the next year by US vs Cruikshank, which determined (somewhat confusingly) that the victims of the Colfax Massacre had not been denied their rights on the basis of race, and that the federal government could only prevent persecution by the states. Persecution by individuals (such as the angry mob that turned out to prevent blacks and Republicans from voting in Colfax) was considered a matter for local law enforcement, a decision which made it nearly impossible to indict perpetrators of white supremacist terrorism due to local law enforcement frequently being involved or at least unbothered by it.32
From a strictly legal perspective, Johnson’s resistance to federal enforcement of black civil rights was indeed correct. Secretary Welles claimed that the Fourteenth Amendment would “subvert the government” and “lead to the overthrow of his administration as well as that of this mischievous Congress”. On the other hand, Johnson received a petition explaining why he should support the amendment, signed by 250 blacks from Maryland, many of them Union veterans or family of Union veterans. Henry Ward Beecher urged Johnson that such legislation was important morally and would gain Johnson support in the North and the western states.33 Johnson’s insistence on legality infuriated radicals, who quite reasonably saw their goal of equal rights for blacks as being more important than the due process of an inherently unfair legal structure. Congress chose to err on the side of morality when they imposed black suffrage on ten southern states in 1867, but acknowledged the legality issue two years later in the drafting of the Fifteenth Amendment officially banning disenfranchisement due to “race, colour, or previous condition of servitude”,34 and then overriding Johnson’s attempt at a veto. Black suffrage lost the Republicans some popularity in the South, as demonstrated in the 1867 elections, due to the public viewing Congressional Reconstruction as an overreach of power.35 Ulysses S. Grant, elected president in 1868 on his war-hero status, was a major supporter of black suffrage, and was instrumental in the passing of the Fifteenth Amendment in 1870 to ensure that black civil rights would not depend on the whims of the current political party. Johnson, ever a sore loser, called it unconstitutional, but it was still ratified by all states within the year.36 Northerners generally assumed that once blacks were able to vote, the problem would go away on its own, but they underestimated the tenacity of the Southern racial caste system. The Civil Rights Acts were gradually defanged by Southern legislation such as the previously mentioned US vs Cruikshank and another landmark, the Slaughterhouse cases in 1873. Four years earlier, Louisiana had chartered a corporation to monopolize New Orleans butchering and meatpacking, ostensibly in the interest of public health, but mostly to more efficiently compete for control of the Texas cattle trade. Numerous small butchers tried to sue under the rationale that the Fourteenth Amendment protected their right not to compete with a monopoly, as part of “full and equal protection under the law.” Justice Samuel F. Miller reasoned that it did not, because the Fourteenth Amendment was designed to bring rights for black citizens in line with those of white citizens, and did not grant any further rights other than those that white citizens already enjoyed. Furthermore, the rights guaranteed by the Fourteenth Amendment were only federal rights– specifically access to ports and waterways, the ability to run for federal office, travel to the seat of government, and to be protected at sea and abroad. Everything else was the business of the states and the federal government had no jurisdiction. Miller was a supporter of black civil rights, but he did not want the courts to become a censor to state legislation. His colleague Stephen J. Field responded that Miller’s interpretation of the Fourteenth Amendment made it scarcely worth the bother, and supported the butchers’ claim that free labour meant the right to choose and pursue an occupation. A Democrat, Field was uninterested in black civil rights (and also women’s rights, as seen in his ruling against prospective Illinois lawyer Myra Bradwell37— apparently Field’s feelings on free labour only applied to men), but he believed that the federal government had a responsibility to keep the states from passing foolish legislation.38 The ruling against the New Orleans butchers set the tone for very narrow interpretations of the Civil Rights amendments, which allowed them to be eroded by state legislation over the remainder of the century, resulting in segregation and Jim Crow laws as black voters were suppressed by violence and chicanery.
The Republicans under President Grant were quite right to want black civil rights coded into Constitutional amendments, where they would be much harder to get rid of than repealable laws. The state and local jurisdictions in the South were not going to grant full equality to blacks unless they were forced to do so by the federal government, and while it was legal, Johnson’s insistence on waiting for white Southerners to want to change was undeniably morally wrong, justified only by his fear of losing popularity. Congressional Republicans during Reconstruction were willing to become unpopular, but their unpopularity became their undoing, and in turn, they were unable to enforce the laws they had passed. It seems that the majority of white Americans in the mid-late 19th century were simply not ready to see blacks as equal fellow citizens, and Southerners especially were willing to continue oppressing blacks through questionably legal means for as long as Northerners were unable to stop them from doing so. It would take another Civil Rights Movement, led by the descendants of those blacks who had been successful before and during Reconstruction in gaining land and education, to dismantle the Southern counterattack to Reconstruction. We are now, perhaps, due for another, to address the remaining issues of cycles of incarceration (a relic of the year-long work contracts forced upon freedmen under the black codes, lest they be arrested for vagrancy and put out to work in chain gangs with the state benefiting financially from their labour, rather than being allowed to benefit from personal advancement programs within the prison itself39), the continued and enduring fear of black anger stemming from an antebellum fear of slave revolts, and the expectation on black women that they support their fathers, brothers, and husbands in the racial struggle but take a backseat when it comes to their own rights. Frederick Douglass’ words that blacks should join forces with poor whites in order to dismantle the plantation system that oppressed them both seemed echoed in Martin Luther King’s campaign against rural poverty just before his assassination, but so to does Andrew Johnson’s refusal to listen echo in the current Republican insistence that black and minority voters are little more than pawns of an elitist system intent on oppressing poor whites. The system is getting better– it is no longer socially acceptable to be seen as racist, though people continue to be racist in all but name– but it is still unfair, and the only way to keep things going in the right direction is to keep talking about it, and to pick morality over legality when the legal system fails. Civil rights for a minority group will always be under fire by the majority, and majorities are rarely able to put their own well-being on the back burner in order to see that justice is done to others. If the federal government does not have the power and responsibility to ensure that majority rule does not become tyrannical, then who does?
Bergeron, Paul H. Andrew Johnson’s Civil War and Reconstruction. Knoxville: University of Tennessee Press, 2011.
Dickinson, Anna E. A Tour of Reconstruction. Lexington, KY: University Press of Kentucky, 2011.
Foner, Eric. Reconstruction: America’s Unfinished Revolution. New York: Harper and Row, 1988.
Sumner, Charles. “Senate Speech Against Repeal of Missouri Prohibition of Slavery North of 36o30′.” Speech presented to the US Senate on February 21st, 1854.
1Charles Sumner, “Senate Speech Against Repeal of Missouri Prohibition of Slavery North of 36o30’” (speech presented to the US Senate on February 21st, 1854).
2Anna Dickinson, A Tour of Reconstruction. (Knoxville: University of Tennessee Press, 2011), 8.
3Eric Foner, Reconstruction: America’s Unfinished Revolution. (New York: Harper and Row, 1988), 177.
4Paul Bergeron, Andrew Johnson’s Civil War and Reconstruction, 13-14.
5Foner, Reconstruction, 180.
6Bergeron, Andrew Johnson, 84.
7Bergeron, Andrew Johnson, 96-97.
8Dickinson, A Tour of Reconstruction, 8-9.
9Foner, Reconstruction, 180.
10Foner, Reconstruction, 157.
11Foner, Reconstruction, 165.
12Foner, Reconstruction, 169.
13Dickinson, A Tour of Reconstruction, 125.
14Foner, Reconstruction, 171.
15Bergeron, Andrew Johnson, 88-89.
16Bergeron, Andrew Johnson, 82.
17Bergeron, Andrew Johnson, 120.
18Dickinson, A Tour of Reconstruction, 9.
19Bergeron, Andrew Johnson, 107-108.
20Bergeron, Andrew Johnson, 113-114.
21Bergeron, Andrew Johnson, 114.
22Bergeron, Andrew Johnson, 110.
23Bergeron, Andrew Johnson, 112.
24Bergeron, Andrew Johnson, 91.
25Bergeron, Andrew Johnson, 92.
26Bergeron, Andrew Johnson, 86.
27Bergeron, Andrew Johnson, 103.
28Bergeron, Andrew Johnson, 104.
29Bergeron, Andrew Johnson, 104.
30Bergeron, Andrew Johnson, 104.
31Dickinson, A Tour of Reconstruction, 33-35.
32Foner, Reconstruction, 530-31.
33Bergeron, Andrew Johnson, page 111.
34Bergeron, Andrew Johnson, 93.
35Bergeron, Andrew Johnson, 175.
36Bergeron, Andrew Johnson, 219.
37Foner, Reconstruction, 530.
38Foner, Reconstruction, 529.
39Dickinson, A Tour of Reconstruction, 81.