In 1865 there were 4.4. million African Americans in the United States. There were 3.9 million enslaved African Americans, and 500,000 free African Americans. The vast majority were in the South. Lincoln contemplated mass deportation, but his efforts to send them to Haiti or Panama failed. Also, Southern white plantation owners opposed deportation because they believed that black labor was indispensable to the South. They did not see how the plantations of the South could survive economically without black farm laborers. By 1865 it began to sink in that deportation was not a viable option. And the question became, well then, what do we do with the 4.4 million black people? What is their place in American society?

Also, please recall that eleven states had adopted ordinances of secession in 1860 and 1861. The eleven were South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, Arkansas, North Carolina, Virginia, and Tennessee. Four slave states DID NOT adopt ordinances of secession, and remained loyal to the Union. They were Delaware, Maryland, Kentucky and Missouri. The western counties of Virginia opposed secession (they had almost no slaves in these counties), and the whites there welcomed the Union Army in 1861. In 1863 the western counties of Virginia became the separate state of West Virginia.

Northern whites felt that blacks should be citizens, but should not have completely equal rights, such as the right to vote, the right to be on juries, the right to hold public office, or work in certain jobs such as firemen or policemen. In most states blacks could not testify in court. And many Northern states before the Civil War had separate schools for black children, separate street cars for whites and blacks, and only allowed blacks to live in certain neighborhoods. So racial exclusion or segregation in housing was already the pattern. Ohio, Indiana and Illinois even passed laws forbidding blacks to enter and reside in their borders. However these proved difficult to enforce. In 1857 Oregon held a referendum. It voted (7,727-2,646) against allowing slavery, and also voted against allowing any free blacks to live in Oregon (8,640-1,081). They were anti-slavery and also anti-black. In other words, their position was one of maintaining white purity.

I. THE DRED SCOTT DECISION OF 1857

In 1857, before the Civil War, the Supreme Court ruled on the Dred Scott case. Scott was a slave who had been taken from Missouri to the free state of Illinois and the Wisconsin Territory by his master, and so had lived in a free state for a while, and then returned to the slave state of Missouri. Scott sued for his freedom. In one of the most infamous rulings in American history, the Supreme Court ruled that Scott was slave and therefore had no right to sue. There was no case, and so he must remain a slave. But the Court went further. Chief Justice Roger Taney was a former slaveholder from Maryland. He said that blacks have no rights which the white man is obliged to respect. Taney said that blacks had always been carried "the deep and enduring marks of inferiority and degradation." They were not part of the sovereign people of America. Neither slaves, nor any of the descendants of slaves, are citizens of the United States. Blacks could be citizens of their state if the white majority in a state chose to give them citizenship. But they were, in that case, citizens of the state only. They were not citizens of the United States.They had no federal citizenship. This meant that even if a master set his slave free, the free children and grandchildren or other descendants would not be citizens of the U.S. Even free blacks were not citizens of the United States. Taney felt that the Founding Fathers had never intended for black people to be citizens of America. He said that at the time the Constitution was adopted in 1787 blacks were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race; and whether emancipated or not, yet remained subject to the their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant [to] them." [see Plessy, p. 57].

II. THE NORTHERN VIEW; CITIZENS YES, EQUALS NO

In 1857 Northerners had denounced the decision as extreme. Many Northerners felt that free blacks should be recognized as citizens, but should not have equal rights, such as the right to vote, the right to be on juries, the right to hold public office, or work in certain jobs such as firemen or policemen. In most states blacks could not testify in court. And many Northern states before the Civil War had separate schools for black children; and separate street cars for whites and blacks; and only allowed blacks to live in certain neighborhoods. So racial exclusion or segregation in housing was already the pattern. Ohio, Indiana and Illinois even passed laws forbidding blacks to enter and reside in their borders. However these proved difficult to enforce. In 1857 Oregon held a referendum. It voted (7,727-2,646) against allowing slavery, and also voted against allowing any free blacks to live in Oregon (8,640-1,081). They were anti-slavery and also anti-black. In other words, their position was one of maintaining white purity.

But as of 1857 the Dred Scott decision was on the books. It was the law. And the law seemed to say that even free black people who were no longer slaves were still not citizens of the United States.

III. RECONSTRUCTION AS A MOVING TARGET

Reconstruction was a moving target. It started at one place or point and then progressed from there. It also reflected a tug or war between different interest groups. It passed through several phases. For our purposes, the FIVE most important are:

Lincoln's Plan of Reconstruction (December 1863)

Johnson's Reconstruction (May 1865-Dec. 1865)

Moderate Republican Reconstruction (Dec. 1865-Nov. 1866)

Radical Republican or Military Reconstruction (March 1867-1870)

Fifteenth Amendment (1870).

IV. 13th AMENDMENT

In Feb. 1865 Congress passed the 13th Amendment, which would abolish slavery. Manumission is the act of an individual owner setting his slave free. It is a voluntary, individual act. Emancipation is government action. It is the government asserting its authority. The 13th Amendment stated that neither slavery nor involuntary servitude, except as punishment for a crime, shall exist within the United States. The amendment was submitted to the states for ratification, and by December 18, 1865 three-fourths of the states within the Union had ratified it. Slavery ended in most of the Confederate states in April 1865, under the terms of the Emancipation Proclamation, enforced by the Union Army and navy. Lincoln had issued the Emancipation in his capacity as commander-in-chief of the armed forces of the United States. Texas refused to submit, and in June the Union army landed at Galveston to enforce the Emancipation Proclamation. General Gordan Granger led the Union army into Texas, and on June 19, 1865, slavery ended in Texas. This date is celebrated as JUNETEENTH.

However slavery still remained legal in the loyal Border States, not in rebellion against the U.S. The 13th Amendment officially abolished slavery EVERYWHERE in the US, and meant that it could not exist even under state law. Therefore, the last slaves (in Maryland, Missouri, Kentucky, Delaware) were freed as of December 1865.

The 13th Amendment meant abolition without compensation.

V. JOHNSONIAN RECONSTRUCTION

In April 1865 Lincoln was assassinated. His vice president was Andrew Johnson, Senator from Tennessee. Johnson was a Democrat, but he had opposed secession. When Tennessee seceded, he refused to accept it and had remained in his seat as the elected senator from Tennessee.

In those days the Congress usually met from December to March. So in March 1865 the Congress adjourned, and then in April Lincoln was assassinated. The Congress expected the new president to call the Congress back into special session. But Johnson felt he was the president, and it was his prerogative to make the decisions.

1. Johnson did not convene Congress until the usual time (December). In the meantime, between April and December of 1865, he ran the country himself. The Republicans bitterly resented this, and resented the lack of consultation. (Politically, this unilateral approach may have been a mistake).

2. On May 29, 1865 Johnson took it upon himself to issue the Proclamation of Amnesty and Pardon.

3. The President would appoint provisional governors of the Confederate states.

4. The governors were required to hold state constitutional conventions, which would draft new state constitutions.

5. Only "loyal" whites who took an oath of future loyalty could vote for the delegates to the new state constitutional conventions.

6. 10% of the voters qualified in 1860 must take the oath of loyalty

7. But those excluded were:

a) Confederate leaders

b) former officeholders who had participated in the Rebellion

c) those persons with $20,000 or more of taxable property

(these had to apply to the President personally for a pardon)

8. The state constitutional conventions must declare the ordinances of secession illegal (must repudiate them, not merely repeal them). [Repudiate meant to renounce that they had any right to secede]

9. The state constitutional conventions must repudiate the Confederate debt (about $1 billion).

10. They must ratify the 13th Amendment

11. Once these things were done the states would be restored to the Union and their delegations could return to Congress, civilian government would be restored, military occupation ended.

To the degree that the Southern states wanted the army of occupation to leave, and wanted a return to civilian government, it was in their interest to cooperate. The reward for cooperation was an end to military occupation. That's what the South stood to gain. That is what it would "get out of it."

VI. THE SOUTH'S RESPONSE TO JOHNSON'S RECONSTRUCTION

Andrew Johnson did not call the Congress into special session. He simply proceeded to govern the country alone, by himself, as an accidental president. The Republicans were not amused.

In the summer of 1865 Mississippi refused to ratify the 13th Amendment abolishing slavery. Johnson approved its constitution and government anyway.

Alabama refused to ratify the clause in the 13th Amendment giving Congress the power to enforce the Amendment. Johnson approved the new state constitution and its government anyway.

South Carolina and several other states repealed their ordinances of secession but refused to repudiate them. They refused to admit that secession was illegal, as Johnson had demanded.

South Carolina also refused to repudiate the Confederate debt. Johnson approved the new constitution anyway.
 

Johnson had declared certain people, such as high Confederate officials, to be ineligible to vote or hold office. When the Southern states elected new state governments, and new representatives to Congress, many of these ineligible people were elected anyway. After the fact, Johnson issued pardons to them. To Northerners these actions by the Southern states looked like defiance. And Johnson's failure to make the Southern states meet the terms he himself had established looked like weakness.

VII. MORE DEFIANCE; THE BLACK CODES

However the South did two other things that aroused indignation in the North. The first was the adoption of the infamous Black Codes by the Southern states in 1865. The second offense was who they elected to Congress in the fall of 1865.

A) THE BLACK CODES (SUMMER 1865)

The Black Codes did finally accept legal marriages for blacks. Under slavery no legal marriage between slaves was recognized. People lived in families as husband and wife, but their unions had no legal standing. The unions between slaves were not recognized by law. The Black Codes generally acknowledged that blacks, the ex-slaves, had the right to sue and be sued.

But they prohibited inter-racial marriage. The Florida Black Code, like most, defined a person with 1/8 Negro blood as a Negro (to the third generation: one great grandparent who is black). Thus, if one of your great-grandparents had been black, you were considered black. Blacks were prohibited from serving on juries or testifying against whites. In South Carolina the Code prohibited blacks from entering any employment except agricultural labor, without first obtaining a special license. Mississippi forbade blacks to buy or rent farm land.

Almost all of the Southern states enacted so-called vagrancy laws. These laws stated that blacks found without lawful employment were to be arrested as vagrants, and fined. They would then be auctioned off or hired out to landholders who would pay their fine, and have to work for these people.

Louisiana required all black agricultural laborers to make contracts with landholders during the first 10 days of January. Once made, the contracts were binding for a year. If you didn't have a contract you were declared a vagrant.

Under the Black Codes blacks could not leave their place of employment without permission. Of course, under slavery, blacks had also been confined to the plantations.

Blacks who refused to labor for their employer were to be arrested and put to forced labor on public works, without compensation, until they agreed to go back to the job for their employer.

President Johnson accepted the Black Codes. But in Mississippi the army disallowed them.

It is perfectly obvious that these Black Codes were a blatant attempt to re-impose slavery under a new name. It wouldn't be called slavery anymore, but the content looked an awful lot like slavery. In the passage of the Black Codes by the Southern legislatures, we see the elite using political power and the law to serve its own economic class interests. These Black Codes were written by the elite, for the elite. The law was simply a tool or instrument of their domination.

Further, the attempt to prevent blacks from buying or renting land, and the effort to make it all but impossible to have any employment outside of agriculture is revealing. This shows that the planters, the landowners, did not want blacks to have farms of their own. Instead, they wanted blacks to be trapped as a dependent labor force. They wanted to keep blacks trapped a landless peasants who would have no choice, and no alternative, but to work on the land of the old plantation owners.

It was in the economic interests of the planters to maintain a large supply of cheap agricultural labor. In Russia they would have been called serfs. In Poland and Italy they were called peasants. The freed slaves were now a landless peasantry. But if they had farms of their own, they wouldn't work for the plantation owner on his land. Therefore the plantation owners had to do everything they could to prevent the blacks from acquiring any farms or land of their own. It was necessary to block the upward mobility and opportunity of the black peasants. It was a matter of racism. But it was also a matter of economic interest. The two were tangled up together.

The North, however, was appalled by the Black Codes. They looked like slavery by another name. Northerners felt the South had learned absolutely nothing from four years of civil war.

VIII. THE LAST STRAW: THE ELECTION OF NEW REPRESENTATIVES TO CONGRESS IN NOV. 1865

In November elections were held and in December the Congress convened. The Southern delegations to Congress included 74 ex-Confederates. Alexander Stephens, vice president of the Confederacy, was elected from Georgia. 4 Confederate generals were elected to Congress, 5 colonels, 6 cabinet officers and 58 members of the Confederate Congress. In all some 74 ex-Confederates were elected to Congress. People said that it looked as if Richmond, the Confederate government, had moved to Washington.

The North was absolutely outraged. It saw these men as traitors.

IX MODERATE REPUBLICAN RECONSTRUCTION

The Congress has the right to review the credentials of all members. Congress does not have to seat or admit any person whom it feels is unqualified for one reason or another. This power is rarely invoked, but occasionally it is. In December 1865 the Republican Congress refused to seat the ex-Confederates. And the Republican Congress repudiated the actions of President Johnson.

A). The Republicans in the House of Representatives and the Senate formed a Joint Committee on Reconstruction. They took the view that the nation could not just go back to the status quo ante, to the way that things had been before the war. Instead the South must be reformed or re-constructed.

The problem was that the minimum price that the moderate Republicans demanded was higher than either the South or Johnson was willing to pay. And so a power play, a struggle for power, a tug of war took place between the Congress and the president.

B) FREEDMEN'S BUREAU BILL

2. In February the Congress passed the Freedman's Bureau bill. It created a temporary, emergency relief agency to provide food, clothing, shelter and medical aid to the freedmen and victims of the war. I will say more about it later on. Johnson vetoed the bill. On April 9, 1866 Congress overrode his veto.

C) CIVIL RIGHTS ACT OF 1866

3. In March 1866 Congress passed the Civil Rights Act. Its purpose was to overturn the Dred Scott decision of 1857 which said, in effect, that even free black people are not citizens of the United States. The bill said that all persons born in the United States (except for Indians who did not pay taxes) are citizens of the United States, and shall have equal protection of the law, and their rights fall under federal protection and jurisdiction. It said that all persons have the same right as white people to make contracts, to dispose of property, and to enforce their rights in court. The sponsor of the bill was Senator Lyman Trumbull. He was the Chairman of the Senate Judiciary Committee. In April Johnson vetoed the bill. He felt that Congress was exceeding its authority. Johnson believed in white supremacy. He did not believe the Founding fathers ever intended for black people to be citizens or to have equal rights with white people. America was supposed to be a white country, a country for white people. It was not supposed to be a multi-racial society for all people, regardless of race. In April Republican two thirds majorities in both houses of the Congress overrode his veto.

Legally the Civil Rights Act of 1866 negated the Black Codes, and struck them down. Historically they are significant because of what they reveal about the intentions of the South. They reveal the efforts of the South to find a substitute for slavery.

From May 1-3, 1866 a race riot erupted in Memphis, Tennessee. Drunken mobs of whites invaded the black neighborhoods, burning black homes and churches and killing people. Forty six people died, most of them black. The North was alarmed that even the passage of the Civil Rights Act seemed insufficient to protect black people. On July 30th a race riot took place in New Orleans. More than 35 people were killed.

X. FOURTEENTH AMENDMENT

The Republicans feared that the Supreme Court might declare the Civil Rights Act unconstitutional. Therefore, they concluded that if the Constitution-- as originally written-- did not include black people, then the Constitution should be amended to add them in. Therefore in June 1866 Congress took the Civil Rights Act and passed it as an amendment to the Constitution. The Fourteenth Amendment stated that all persons born or naturalized in the U.S. are citizens of the US and the state in which they reside. This provision is called the citizenship clause. The Amendment said that "No state may abridge the privileges or immunities [rights] of citizens." The Amendment said "No state may deprive any person of life, liberty or property, without due process of law." This is the due process clause. And the Amendment said "Nor [No state may] deny any person the equal protection of the law." This is called the equal protection clause. Over time this concept of equal protection has been expanded to mean equal treatment under the law. It is here, in the Fourteenth Amendment, that the supreme law of the land established that on paper, and in principle, black people are equal, and are entitled to equal rights, and they are citizens of this country. It took an amendment to the constitution to establish citizenship and civil rights for blacks. Civil rights was understood to mean rights such as citizenship, serving on juries, testifying in court, a trial, owning and disposing of property, freedom to move about from one place to another at will -or freedom of mobility]; and the freedom to make and enter into contracts. It did not, however, include the right to vote. The right to vote is a political right, and is a separate matter from citizenship. The Fourteenth Amendment, proposed by Congress in June 1866, was ratified by three fourths of the states as of July 1868.

In 1866 the moderate Republicans and moderate Northern whites were demanding more than Lincoln or Johnson had demanded. The Republicans, and the North, were saying that not only should slavery be abolished, but black people should be citizens with equal citizenship rights.

To the South, however, this was the antithesis of everything they had been taught and had believed for 240 years. They had believed for 2 centuries that black people were inferior and only fit to be slaves. How could the South now accept blacks as equals?

The 14th Amendment was the major issue in the 1866 elections. Johnson campaigned against it. And he urged the Southern states to refuse to ratify the 14th Amendment. He gambled that the people of the North would feel the Republicans were going too far in a radical direction by giving citizenship to blacks, and would elect Northern Democrats to apply the brake to the liberal policies of the Republicans.

But Johnson was a drunkard. At his campaign stops he was visibly intoxicated, and argued publicly with hecklers. The Republicans swept the November elections, and in the Congress that convened in December 1866 the Republicans had more than a 2/3rds majority.

From Dec. 1865 through 1866 the moderate Republicans had wanted to work with the president. But their minimum requirement was the 14th Amendment. However this was more than the President and the South could bring themselves to accept. In fact, during the summer of 1866 ten (10) of the 11 former Confederate states (all but Tennessee) followed the advice of Andrew Johnson and rejected the 14th Amendment. They refused to ratify it. All hope of an agreement between the Moderates and the South was now lost. Moderate Reconstruction was over.

In November 1866 northern voters repudiated Johnson at the polls and strengthened the Republicans. Moderate Reconstruction had run its course. Now the hard-liners, the so-called Radical Republicans, got their chance. They took the view that the Moderates had tried compromise, and the South had responded with defiance. Now the Radicals would try it their way. And they intended to punish the South and deal with it more harshly.