Chapter IV: The Congressional Plan of Reconstruction

The Stevens Resolution--Legislation of the Reconstructed "States" Concerning the Status of the Freedmen, and the Freedmen's Bureau--Vagrancy, Apprenticeship, and Civil Rights in the Reconstructed "States"--The View Taken of this Legislation by the Republicans--The Ratification of the Thirteenth Amendment to the Constitution--The Demand of the Senators- and Representatives-elect from the Reconstructed "States" to be Admitted to Seats in Congress--The Joint Committee of the Two Houses of Congress on Reconstruction--Thaddeus Stevens's Ideas on Reconstruction--Mr. Shellabarger's Theory of Reconstruction--Mr. Sumner's Theory of Reconstruction.

[Sidenote: The Stevens resolution.]

So soon as the House of Representatives had elected its Speaker, Mr. Colfax, and other officers, and before the reception of the President's Message, Mr. Thaddeus Stevens presented a resolution which proposed the selection of a joint committee of the House and Senate to inquire into the condition of the "States," which formed the so-called Confederate States, and to report by bill or otherwise, whether, in the judgment of the Committee, these "States," or any of them, were entitled to be represented in either House of Congress, and which provided that "until such report shall have been made and finally acted upon by Congress, no member shall be received into either House from any of the so-called Confederate {43} States." The House passed this resolution by an overwhelming majority; and then adjourned without allowing a motion by Mr. Niblack of Indiana, to the effect that "pending the question as to the admission of persons claiming to have been elected representatives to the present Congress from the States lately in rebellion, such persons be entitled to the privileges of the floor of the House," the usual privilege accorded contestants, to come to a vote.

[Sidenote: The view of the House that Reconstruction could not be effected by the Executive.]

The view of the House was thus manifest from the start. It was that Reconstruction could not be effected by the Executive Department of the Government, but was a problem for Congress, and that this was a matter entirely separate from the power of each House to judge of the elections, returns and qualifications of its members, a matter to be decided by the whole Congress prior to the consideration of the question of the elections, returns, and qualifications of the members of each House. In a word, it was the question of the admission, or the readmission, of "States" into the Union, or more correctly the question of the establishment or re-establishment of the "State" system of local government upon territory of the United States under the exclusive power of the central Government.

[Sidenote: Passage of the Stevens resolution as a concurrent resolution.]

There is no question that in sound political science the House was entirely correct in its theory, and that the objection of the Senate to that part of the Stevens resolution which provided that no member should be received into either House from any of the so-called Confederate States until the report of the Committee on Reconstruction should have been finally acted on by Congress, as trenching upon the exclusive power of the Senate to judge of the elections, returns and qualifications of its members, rested upon a confounding of the {44} function of Congress to admit "States" into the Union with the power of each House to judge of the elections, returns and qualifications of those claiming to represent "States" or constituencies in "States" about whose position in the Union there was no question. The Senate finally swung into line, however, by passing this part of the House resolution as a concurrent resolution instead of as a joint resolution.

[Sidenote: Legislation of the reconstructed "States" concerning the status of the freedmen, and the Freedmen's Bureau.]

There were two other considerations which moved the Republicans in Congress to assume this attitude in regard to Reconstruction. One was the legislation of the "States" reconstructed by the President concerning the status and the rights of the freedmen. On the 3d of March preceding, Congress had passed an act organizing a bureau in the War Department for the care of refugees and freedmen in the districts in rebellion or in the territory embraced in the operations of the army. This bureau was officered by a chief commissioner and assistant commissioners for each of the "States" declared to be in insurrection. These officers were authorized to take possession of the abandoned lands within these "States," and other lands belonging to the United States, and parcel them out to the loyal male refugees and freedmen, not more than forty acres to each, and protect them in the use and enjoyment of the same for the term of three years. They were also authorized to issue under the direction of the Secretary of War provisions, clothing and fuel to such loyal refugees and freedmen as were destitute.

[Sidenote: The administration of the Freedmen's Bureau.]

There is no question that this was a most humane measure. It would have been a moral outrage for the Government of the United States to have taken the slaves away from the support and protection accorded {45} them by their masters, and to have thrown them upon their own resources without any means of sustenance during the transition into the new status. But there is also no question that this measure was so administered as to do the race for whose benefit it was intended almost as much harm as good. When the Government began to furnish them with food, clothes, fuel and shelter gratis, they, like the children that they were, conceived of this, to them, very agreeable state of things as something that was to last forever, as the New Jerusalem. They gathered about the depots of the Freedmen's Bureau and could not be induced to go away in search of work or livelihood. The belief became quite general that the Government intended to give every man forty acres of land and a mule, and otherwise to support him permanently. The danger was that the newly emancipated would quit work altogether and throw themselves entirely upon the charity of the United States Government. Many did do so, and formed thus a sort of privileged class throughout the whole South under the special protection of the Government of the United States.

[Sidenote: Vagrancy, apprenticeship and civil rights in the reconstructed "States."]

When, now, the newly reorganized "States" came to assume jurisdiction over matters concerning the freedmen, they found themselves driven to some legislation to prevent the whole negro race from becoming paupers and criminals. It was in the face of such a situation that the legislatures of these "States" passed laws concerning apprenticeship, vagrancy and civil rights, which were looked upon at the North as attempts to re-enslave the newly emancipated, and served to bring the new "State" governments at the South into deep reproach.

[Sidenote: Examination of these vagrancy acts, etc.]

It must be remembered, however, that at the time of the passage of the Stevens resolution by the House of {46} Representatives, only two of Mr. Johnson's reconstructed "States" had passed any laws upon these subjects. These two were Mississippi and South Carolina; and a close examination of the text of these enactments will hardly justify the interpretations placed upon them by the radical Republicans. The South Carolina Preliminary Act came first in the order of time. It provided that "all free negroes, mulattoes, and mestizos, all freedwomen, and all descendants through either sex of any of these persons, shall be known as _persons of color_, except that every such descendant, who may have of Caucasian blood seven-eighths, or more, shall be deemed a white person; that the statutes and regulations concerning slaves are now inapplicable to persons of color; and although such persons are not entitled to social or political equality with white persons, they shall have the right to acquire, own, and dispose of property, to make contracts, to enjoy the fruits of their labor, to sue and be sued, and to receive protection under the law in their persons and property"; and "that all rights and remedies respecting persons or property, and all duties and liabilities under laws civil and criminal, which apply to white persons, are extended to persons of color, subject to the modifications made by this act and the other acts hereinbefore mentioned."

The acts to which this one was preliminary were not passed until the latter half of December, and could not have served, except by prevision, as grounds for the Stevens resolution. Moreover there was little in this Act which was really calculated to arouse any pronounced hostility at the North. It evidently recognized the emancipation of the former slaves, and the prohibition of future slavery, as fixed facts, and provided for substantial equality in civil rights between persons of color {47} and white persons. The discriminations which it referred to, rather than made, were those of a social and political nature, matters which to that time had been controlled, if controlled at all, wholly by the "States," except of course in those parts of the country in which "States" had not been erected.

[Sidenote: The Mississippi Acts.]

The Mississippi acts were all passed in November. They were the acts which were before the view of Congress and the country in the beginning of December, 1865, and, with the exception of the South Carolina Preliminary Act just commented on, the only ones. They require, therefore, a somewhat fuller treatment. They consist of "An Act to regulate the relation of master and apprentice relative to Freedmen, Free Negroes, and Mulattoes, passed November 22, 1865"; the "Vagrant Act of November 24, 1865"; an "Act to Confer Civil Rights on Freedmen and for other purposes," passed November 25, 1865; a supplementary Act to this, passed November 29, 1865; and another supplementary Act, passed December 2, 1865.

The first Act provided that freedmen, free negroes, and mulattoes under the age of eighteen years, being orphans, or the children of parents who could not, or would not, support them, should be apprenticed by the clerk of the Probate court in the county where found to competent and suitable persons, and on such terms as the court should direct; under the restrictions, that the former owner of the minor should be selected by the court as the master or mistress if, in the judgment of the court, he or she were competent and suitable; that the terms fixed by the court should have the interest of the minor particularly in view; and that the apprentice should be bound by indenture, to run, in the case of males, until the completion of the twenty-first year, {48} and, in the case of females, until the completion of the eighteenth year.

This Act further provided that in the management and control of apprentices, the master or mistress should "have power to inflict such moderate corporal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law," but that in no case should "cruel or inhuman punishment be inflicted."

It furthermore provided, that in case of desertion by the apprentice, he might be apprehended and brought before a justice of the peace, who might remand him to his master or mistress, and might, on the refusal of the apprentice to return, commit him to jail, on failure to give bond, until the next term of the County court, which court should inquire into the matter, and determine whether the apprentice had left the service to which he was bound without good cause or not, and should, in the one case, compel the return to service by ordering the infliction of the necessary penalties, and in the other, should order the discharge of the apprentice, and enter "judgment against the master or mistress for not more than one hundred dollars, for the use and benefit of the apprentice."

The second Act provided, that "all free negroes and freedmen in the State, over the age of eighteen years, found on the second Monday in January, 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together, either in the day or night time, and all white persons so assembling with freedmen, free negroes, or mulattoes, or usually associating with freedmen, free negroes, or mulattoes on terms of equality, or living in adultery or fornication with a freedwoman, free negro or mulatto, shall be deemed vagrants, and on conviction thereof, shall be {49} fined in the sum of not exceeding, in the case of a freedman, free negro or mulatto, fifty dollars, and in the case of a white man, two hundred dollars, and imprisoned, at the discretion of the court, the free negro not exceeding ten days, and the white man not exceeding six months."

It further provided, that in case the freedman, free negro or mulatto should not pay the fine within five days from the time of its infliction, the sheriff of the proper county should hire him or her out to any person who would for the shortest period of service pay the fine and all costs, giving the preference, however, to the employer of the freedman, negro or mulatto, if there should be any, and, if no person would hire the same, should hold him or her to be dealt with as a pauper. It also provided that the freedman, free negro, or mulatto refusing or failing to pay a tax should be dealt with by the sheriff in the same manner.

And it provided, finally, that the same duties and liabilities existing among white persons in the "State" to support indigent whites should attach to freedmen, free negroes and mulattoes in regard to the support of colored paupers, and that in order to carry out the same a poll tax, not exceeding one dollar a head, should be levied on every freedman, free negro, and mulatto, between the ages of eighteen and sixty years, and should be collected and paid into the hands of the treasurers of the counties to be used in the support of colored paupers.

The third Act provided, that freedmen, free negroes and mulattoes might acquire, hold, and dispose of, personal property in the same manner and to the same extent as white persons, and might sue and be sued in all the courts of the "State" as white persons, but that they should not rent or lease lands or tenements except in {50} incorporated towns or cities, and under the control of the corporate authorities.

It provided, further, for the intermarriage of freedmen, free negroes and mulattoes, and for the legalization of all previous and existing cohabitations between them, and the legitimation of the issue therefrom; but it forbade intermarriage between them and white persons, under penalty of life imprisonment, and it defined freedmen, free negroes and mulattoes as comprehending all of pure negro blood, and all descended from negroes to the third generation inclusive, although one parent in each generation should have been white.

It provided, further, that freedmen, free negroes and mulattoes should be competent as witnesses in all civil cases, in which they themselves or other freedmen, free negroes and mulattoes were parties or a party to the suit, and in criminal cases where the crime charged was alleged to have been committed by a white person or persons upon or against the person or property of a freedman, free negro, or mulatto.

It provided, further, that every freedman, free negro and mulatto should have a lawful home and employment, and should have written evidence thereof in the form of a license from the police authorities to do irregular or job work, or in the form of a written contract for labor. It required that all contracts made with freedmen, free negroes and mulattoes for labor for a longer period than one month should be in writing, a copy of which should be furnished to each party, and that if the laborer should quit the service of the employer before the expiration of the term fixed in the contract, he should forfeit his wages for that year up to the time of quitting.

It provided, further, for the arrest of any freedman, free negro, or mulatto quitting the service of an employer, and for the determination of the question whether {51} the quitting was for good cause or not, and for the disposition to be made of the deserter.

It provided, further, that enticing or persuading freedmen, free negroes or mulattoes to desert from their legal employment, or employing deserters from contract labor knowingly, or giving or selling them food, raiment or other thing knowingly, should be a misdemeanor punishable by fine, or by imprisonment in case the fine should not be paid.

It provided, further, that no freedman, free negro or mulatto, unless in the military service of the United States, or licensed thereto by the police authorities, should keep or carry arms, ammunition or murderous weapons, and that every civil and military officer should arrest any such person found in possession of such articles, and commit him for trial.

It provided, further, that "any freedman, free negro, or mulatto committing riots, affrays, trespasses, malicious mischief and cruel treatment to animals, seditious speeches, insulting gestures, language or acts, or assaults on any person, disturbance of the peace, or exercising the functions of a minister of the gospel without a license from some regularly organized church, or selling spirituous or intoxicating liquors, or committing any other misdemeanor," should be fined or imprisoned, and, upon failure to pay the fine in five days' time after conviction, should be publicly hired out to the person who would pay the fine and costs for the shortest term of labor from the convict.

And it provided, finally, that "all the penal and criminal laws now in force in this State, defining offences, and prescribing the mode of punishment for crimes and misdemeanors committed by slaves, free negroes or mulattoes, be and the same are hereby re-enacted, and declared to be in full force and effect, against {52} freedmen, free negroes and mulattoes, except so far as the mode and manner of trial and punishment have been changed or altered by law."

[Sidenote: The Mississippi legislation a fair sample of the subsequent legislation in other "States."]

This is a fair sample of the legislation subsequently passed by all the "States" reconstructed under President Johnson's plan. In fact, in the legislatures of several of them, bills containing substantially these provisions were under consideration when Congress met, and it was fair to suppose that they would be enacted. Congress had thus in the first week of December, 1865, substantially before it what the reconstructed "States" proposed to do in reference to the status and rights of the former slaves, and in reference to the relations between the negro and the white man in the future.

As yet, we must remember, the Thirteenth Amendment had not been proclaimed as adopted, in fact had not been adopted, on the basis of the calculations of Mr. Seward, the Secretary of State, the officer who alone could proclaim adoption; and the abolition of slavery rested upon the military power of the President, and on the acts of the "States" themselves, the first of which is temporary as to its effects, and the second of which might be reversed by the "States" at pleasure.

[Sidenote: The view taken of this legislation by the Republicans.]

[Sidenote: This legislation from the point of view of natural justice.]

The Northern Republicans professed to see in this new legislation at the South the virtual re-enslavement of the negroes. This was an extreme view of it, although it certainly did not give the negro equal civil right with the white man, or anything approaching that, to say nothing of failing to offer him any prospects of ever participating in political functions. Of course it would be an abstract assumption to say that the negro ought, at the moment of his emancipation, to have had equal civil right with the white man. Civilized man can be safely {53} intrusted with a much larger civil liberty than the barbarian or the semi-barbarian. There is no question also that much severer penalties for the commission of the same crime are necessary among a barbarous race or class than among a civilized race or class. From these points of view this Mississippi legislation does not appear as far from what was natural and even necessary as Mr. Stevens and his followers made it out. The law of apprenticeship was not severe, and, if justly and sincerely executed, it would probably have been beneficial to the young negroes, deprived of the care given them up to that time by master or mistress, and now thrown upon themselves without a cent of money or a particle of property, most of them knowing no parent except a mother as poor as themselves, and entirely unacquainted with the new conditions of life now confronting them.

The law of vagrancy was severer. But it is easy to see that a reasonable execution of that law had as much help as harm in it for the former slave. It would have preserved him against idleness, drunkenness, and thievery, although it did curtail largely his liberty of action. It was, undeniably, the third act, which came so near to the re-enactment of the old slave code in regard to crimes and misdemeanors committed by negroes, that gave the greatest offence. 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 consigned to a condition almost of slavery for an indefinite time, if he could not pay the fine. There is no question that the "States" of the Union had at that moment the power under the Constitution of the United States to do these things. At that time the determination of the criminal law, both {54} as to the definition of crime, the fixing of penalties, and the fashioning of procedure, was almost entirely a function of the "States," and there was no provision in the Constitution of the United States which required the "States" to treat their own inhabitants with equality in regard to their civil rights and obligations.

Under these circumstances it is not at all surprising that the Republicans of the North strongly felt that the freedom of the negro had not yet been sufficiently guaranteed to render the acknowledgment of the resumption of "State"-powers by the communities so lately in rebellion against the United States for the upholding of negro slavery safe and wise.

[Sidenote: Correctness of the Republican position.]

It was certainly natural, and it was just and right, that the party in power in Congress should have considered it their duty to so amend the Constitution of the United States, before according "State"-powers to the communities lately in rebellion, as to reap the just fruits of their triumph over secession and slavery. It was certainly their duty to the country to secure the adoption of the Thirteenth Amendment, and any further amendment, necessary to accomplish this result, before putting the recently rebellious communities in a position to defeat the same. And it is certainly not strange that the Republicans should have feared that the Democrats of the North in Congress would soon be found fraternizing with the Senators and Representatives from the reconstructed "States," and that it was their duty to secure "perpetual ascendancy to the party of the Union," before admitting the Senators and Representatives from these "States" to participation in public power. Properly interpreted this only meant that loyal men must govern the country. But it did not follow that only Republicans were loyal men, and that the loyal Democrats of the North would follow {55} the recently disloyal Democrats of the South in legislating upon the issues of the war. Republicans were likely to commit this fallacy in their reasoning. Many of them did commit it. And the result of it was to intensify partisanship at the expense of statesmanship.

[Sidenote: The ratification of the Thirteenth Amendment to the Constitution.]

Just two weeks after the passage of the Stevens resolution by the House of Representatives, Mr. Seward announced the adoption of the Thirteenth Amendment to the Constitution of the United States. In making this announcement, he declared that there were thirty-six "States" in the Union, and that the legislatures of twenty-seven "States," just three-fourths, the necessary number, had voted its adoption; and among those voting to adopt, he counted the legislatures of Virginia, Louisiana, Arkansas, Tennessee, North Carolina, South Carolina, Georgia and Alabama.

It is to be remarked, however, that had he counted none of the "States" that had passed secession ordinances, either in the whole number, or in the three-quarters necessary to adopt, the Amendment would in that case also have been adopted. There would have been, in that case, twenty-five "States" in the Union, and of these nineteen had adopted the Amendment. And if any controversy had arisen over the use of fractions in making nineteen three-fourths of twenty-five, this would have been quickly overcome by the fact that the legislatures of four more of the loyal "States" adopted the Amendment soon after Mr. Seward's declaration, making twenty-three out of twenty-five. It will not, of course, be disputed that, if the "States" that passed secession ordinances should have been counted in arriving at the whole number of "States" in the Union, those of them adopting the Amendment should also have been counted in making out the three-fourths majority {56} necessary to adoption, and that if, on the other hand, they should have been excluded in arriving at the whole number, they should also have been excluded in making up the three-fourths majority. In other words, it does not matter from which point of view we regard the subject, the Amendment was regularly and lawfully adopted. It must be admitted, however, that Mr. Seward followed in this most solemn procedure, the amending of the Constitution, the Presidential plan of Reconstruction, and gave great encouragement to the Senators- and Representatives-elect from these reconstructed "States" to expect that they would have the aid and influence both of the Democrats in Congress, and of the Administration, in securing their seats.

[Sidenote: The demand of the Senators- and Representatives-elect from the reconstructed "States" to be admitted to seats in Congress.]

They had gone to Washington and, bearing themselves confidently from the first, they now became defiant in demanding their rights. Many of them were men who, less than twelve months before, had been in arms against the United States, and one of them was the person who was the Vice-President of the Confederacy at the moment of its downfall, Mr. Alexander H. Stephens. Such an attitude on his part and their part roused again great bitterness of feeling among the Republicans, many of whom conscientiously thought that the real deserts of such persons were the penalties of treason. Moreover, the legislatures of some of the other "States" reconstructed under the President's plan enacted, during December, January and February, measures concerning the status and rights of the emancipated slaves similar to those passed by the legislature of Mississippi, and in some respects even more illiberal than those passed by that body; and it was evident that all of them would finally stand upon the same general ground in regard to this subject.

{57} This was the situation in the last week of February, 1866, when the Senate passed a resolution, concurrent with the Stevens resolution in the House, denying seats to any of the claimants from the "States" lately in insurrection until the report of the Joint Committee on Reconstruction should be made and finally acted upon. Four of the Republican Senators, Messrs. Cowan, Doolittle, Dixon and Norton went against their party associates in this question, but there was still a two-thirds majority in both Houses resolute and resolved to combat the Presidential plan of Reconstruction and to construct and enforce a Congressional plan.

[Sidenote: The Joint Committee of the two houses of Congress on Reconstruction.]

As we have already seen, the Senate had concurred with the House in regard to that part of the Stevens resolution which provided for the appointment of a Joint Committee on Reconstruction, at the time it was passed by the House. The members of the Committee were chosen soon after the passage of this part of the Stevens resolution by the Senate. They were, from the Senate, Messrs. Fessenden, Grimes, Harris, Howard, Johnson and Williams, all Republicans except Mr. Reverdy Johnson of Maryland, and from the House, Messrs. Bingham, Blow, Boutwell, Conkling, Grider, Morrill, Rogers, Stevens and Washburne, all Republicans except Grider of Kentucky and Rogers of New Jersey. The Republicans had given themselves a larger representation on the Committee than their numerical relation to the Democrats warranted, but there is no reason to think that the report of the majority would have been in any respect different, if that relation had been more strictly observed.

[Sidenote: The activity of Congress in the interim between the appointment of the Committee on Reconstruction and the Report of the Committee.]

This Committee sat for about six months before making its final report. During this period, however, several propositions issued from it, and two great {58} measures of statute law were passed by Congress, all of which must be more nearly considered in order to keep the thread of the narrative of Reconstruction. Moreover the debate upon the subject of Reconstruction was at the same time in progress and the view of the subject held by the leading Republicans was becoming more clear and fixed.

[Sidenote: Thaddeus Stevens's ideas on Reconstruction.]

Mr. Stevens opened this debate in the House on the 18th of December (1865). In a powerful speech, he developed anew his doctrine that the territory once covered by the "States," which had seceded from the Union, was nothing now but a conquered district, whose future condition depended upon the will of the conqueror. If "States" should ever be erected there again, it must be accomplished, he contended, by virtue of that provision in the Constitution which declares that "new States may be admitted by Congress into this Union." This theory involved the admission that secession had been temporarily successful. This Mr. Stevens frankly acknowledged. He said: "Unless the law of nations is a dead letter, the late war between the two acknowledged belligerents severed their original contracts, and broke all the ties that bound them together."

[Sidenote: Contradiction between Stevens's view and the view of the Administration.]

This was the extreme doctrine on the one side. It was in blunt contradiction to the doctrine upon which the Administration was acting, the doctrine that the attempt at secession was entirely abortive, and that the "States" where it was attempted were still in the Union _as "States,"_ and had never been anywhere else or anything else, in fact could not be; that the rebellion was the work of private individuals combined as truly against the real "States" in which it existed as against the {59} United States; and that, therefore, the overthrow of these combinations and the cessation of the military rule of the President must be followed by the resumption on the part of the "States" concerned of all their rights and powers of local self-government and of participation in the United States Government, as guaranteed by the Constitution of the United States, unimpaired, and without any action whatever on the part of Congress. Mr. Raymond represented this view on the floor of the House of Representatives. He was a Republican of the Seward school, and sympathized entirely with his patron upon this subject. It was a great embarrassment to him that the Democrats immediately gave in their adherence to this view. It helped to prevent him from gaining any following at all for it among the Republicans.

But while the Republicans of the House repudiated entirely Mr. Raymond's principles, the great mass of them were not able to accept Mr. Stevens's view of the temporary validity of secession, and the temporary existence of the Southern Confederacy as a foreign power. Their feelings and instincts required a principle of reconstruction which, at the same time that it did not recognize secession as having any validity for the shortest moment, yet regarded the "States" in which it was attempted, as having thereby become something other than "States" of the Union, and as requiring the assent of Congress to the rightful resumption of that status.

[Sidenote: Mr. Shellabarger's theory of Reconstruction.]

It was Mr. Shellabarger, of Ohio, who did more than anybody else to give the proper logical interpretation to these feelings and invent the theory of Reconstruction on which the Republicans could plant themselves. Briefly stated that theory was that, while secession was a nullity legally from the beginning, and could not take the territory {60} occupied by the "States" attempting it, or the people inhabiting that territory, out of the Union, or from under the rightful jurisdiction of the United States Government and Constitution for one instant, yet it worked the loss of the "State" status in the Union, and from a legal point of view left this territory and the inhabitants of it subject exclusively to the jurisdiction of the United States Government, a status from which they could be relieved only by the erection of "States" anew upon such territory, an operation which could be effected, under the Constitution of the United States, only by the co-operation of Congress with the loyal inhabitants of such territory.

[Sidenote: Mr. Sumner's theory of Reconstruction.]

[Sidenote: The Republicans in Congress almost unanimously in favor of the Shellabarger-Sumner plan.]

This was sound political science and correct constitutional law. It could not fail to command the assent of the great majority of the Republicans in the House and in the country. This same doctrine was, at the same time, developed in the Senate by Mr. Sumner, Mr. Fessenden and Mr. Wilson, and it was easy to see that it had become the theory of the Republican party in Congress long before the final report of the Committee on Reconstruction promulgated it. Even Stevens and his radical followers were in line with it in so far as practical results were concerned. That is, the Republicans all stood together on the principle that Reconstruction could only be effected by Congressional acts, since it was tantamount to a conferring, or reconferring, of the "State" status upon a population at the moment subject to the exclusive jurisdiction of the Government of the United States. This meant that the entire Republican party in Congress, with the exception of the four members of the Senate already named, and of Mr. Raymond and one other in the House (and this constituted a majority of two-thirds in each House) would antagonize the plan of Executive Reconstruction {61} devised by Lincoln and Seward and persisted in by Johnson and, to that moment, by his cabinet. How far the Republicans in Congress would go in the attempt to set aside Executive Reconstruction depended chiefly upon the moderation of the President, and the sincerity of the people in the South. It depended also in some degree, to say the least, upon what would be necessary to keep the Republican party, which conceived itself to be the only really loyal party to the Union, in power.

There is no doubt that the Sumner-Shellabarger theory of Reconstruction was correct. The only question was how exacting Congress would be in realizing it. Under such a situation it behooved the President to act with great caution and moderation, and to do nothing to provoke a conflict in which he was certain to be worsted. And it also behooved the people of the South to make no opposition to the bestowal of a large measure of civil liberty upon the freedmen, nor to such an adjustment of the basis of political representation as would not necessitate negro suffrage, and not to insist upon sending to Congress, at the outset, the men who had made themselves particularly obnoxious to loyal feeling. How both the President and the persons in authority at the South disregarded these considerations of prudence, and how the position assumed by them upon these subjects drove Congress into more and more radical lines, is the further subject of the next three chapters.

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