The Reconstruction of Georgia / Studies in History, Economics and Public Law, Vol. 13, No. 3, 1901

3

THE RECONSTRUCTION OF GEORGIA

STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW

EDITED BY THE FACULTY OF POLITICAL SCIENCE OF
COLUMBIA UNIVERSITY

Volume XIII] [Number 3

THE

RECONSTRUCTION OF GEORGIA

BY
EDWIN C. WOOLLEY, Ph.D.

New York
THE COLUMBIA UNIVERSITY PRESS
THE MACMILLAN COMPANY, AGENTS
London: P. S. King & Son
1901

TABLE OF CONTENTS

LIST OF ABBREVIATIONS

CHAPTER I

Before this policy was put into operation, however, an effort was made by some of the leaders of the Confederacy to secure the restoration of those states to the Union without the reconstruction and the pledge required by the President. After the surrender of Lee’s army (April 9, 1865), General J. E. Johnston, acting under the authority of Jefferson Davis and with the advice of Breckenridge, the Confederate Secretary of War, and Reagan, the Confederate Postmaster General, proposed to General Sherman the surrender of all the Confederate armies then in existence on certain conditions. Among these was the condition that the executive of the United States should recognize the lately hostile state governments upon the renewal by their officers of their oath of allegiance to the federal Constitution, and that the people of the states so recognized should be guaranteed, so far as this lay in the power of the executive, their political rights as defined by the federal Constitution. Sherman signed a convention with Johnston agreeing to these terms, on April 18. That he intended by the agreement to commit the federal government to any permanent policy is doubtful. But when the convention was communicated for ratification to his superiors at headquarters, they showed the most decided opposition to granting the terms proposed even temporarily. The convention was emphatically disavowed, and on April 26 Sherman had to content himself with the surrender of Johnston’s army only, agreed to on purely military terms.[1]

Georgia formed a part of the district under the command of General Johnston. As soon, therefore, as the news of the surrender could reach that state, hostilities there ceased. On May 3, Governor Brown issued a summons for a meeting of the state legislature to take place on May 22, in order that measures might be taken “to prevent anarchy, restore and preserve order, and save what [could be saved] of liberty and civilization.”[2] At a time of general consternation, when military operations had displaced local government and closed the courts in many places, when the whole population was in want[3] through the devastation of the war or through the collapse of the Confederate currency which followed the collapse of the Confederate army,[4] the need of such measures was apparent.

The calling of the legislature incurred the disapproval of the federal authorities for two reasons. First, they regarded it as an attempt to prepare for further hostilities, and they accordingly arrested Brown, carried him to Washington, and put him in prison.[5] Second, in any case, as the disavowal of the convention of April 18 had shown, they did not intend to allow the state governments of the South to resume their regular activities at once, and accordingly the commander of the Department of the South issued orders on May 15, declaring void the proclamation of Joseph E. Brown, “styling himself Governor of Georgia,” and forbidding obedience thereto.[6]

The federal army now took control of the entire state government. Detachments were stationed in all the principal towns and county seats, and the commanders sometimes removed the civil officers and appointed others, sometimes allowed them to remain, subject to their direction. Military orders were issued regarding a wide range of civil affairs, such as school administration, sanitary provisions, the regulation of trade, the fixing of prices at which commodities should be sold, etc.[7] The provost marshal’s courts were further useful, to some extent, as substitutes for the state courts, whose operations were largely interrupted.[8] Directions to the officers of the Department admonished them that “the military authority should sustain, not assume the functions of, civil authority,” except when the latter course was necessary to preserve the peace.[9] This admonition from headquarters, issued after the President’s plan for reinstating Georgia in the Union had been put into operation, reflects his desire for a quick restoration of normal government.

President Johnson announced his policy toward the seceded states in his proclamation of May 29, 1865, regarding North Carolina. By it a provisional governor was appointed for that state, with the duty of making the necessary arrangements for the meeting of a constitutional convention, to be composed of and elected by men who had taken the oath of allegiance prescribed by, the President’s amnesty proclamation of the same date, and who were qualified voters according to the laws of the state in force before the war. The proclamation did not state what the President would require of the convention, but we may mention by way of anticipation that his requirements were the revocation of the ordinance of secession, the construction of a new state government in place of the rebel government, the repudiation of the rebel debt, and the abolition of slavery within the state. The provisional governor was further authorized to do whatever was “necessary and proper to enable [the] loyal people of the state of North Carolina to restore said state to its constitutional relations to the federal government.”[10]

For each of the states subdued in 1865, except Virginia, a provisional governor was appointed by a similar proclamation. On June 17, James Johnson, a citizen of Georgia, was appointed to the position in that state.[11] On July 13th, he issued a proclamation providing for the election of the convention. Delegates were distributed on the basis of the legislature of 1860; the first Wednesday in October was set for the election, and the fourth Wednesday in the same month for the meeting of the convention.[12] Next, the provisional governor undertook the task of securing popular support to the programme of restoration. To encourage subscription to the amnesty oath (a prerequisite to voting for delegates to the convention) he removed the disagreeable necessity of taking it before the military authorities by directing the ordinary and the clerk of the Superior Court of each county to administer it.[13] He made many speeches throughout the state urging the citizens to take the amnesty oath, to enter earnestly into the election of the convention, and to submit quietly to the conditions imposed by the President.

His efforts were very successful. This was partly due to the place he held in public estimation. He was a lawyer widely known and universally respected. It was also partly due to the attitude of Governor Brown. Brown, after a confinement of several weeks in prison at Washington, secured an interview with President Johnson, and satisfied the President that his object in calling the legislature was simply public relief, that he had no intention to prolong the war, but calmly submitted to the fact that his side was defeated.[14] This explanation and the spirit displayed were so satisfactory to Johnson that Brown was released, and permitted to return to Georgia. His return, remarked Johnson, “can be turned to good account. He will at once go to work and do all he can in restoring the state.”[15] This prediction proved correct. The war governor of Georgia became the type of those Secessionists who practised and counseled quiet acceptance of the terms imposed by the conqueror, as the most sensible and advantageous course. On June 29th he issued an address to the people of Georgia, resigning the governorship, and advising acquiescence in the abolition of slavery and active participation in the reorganization of the state government according to the President’s wishes.[16] The assumption of this attitude by Brown grieved and offended some of his fellow Secessionists. But the majority shared his opinion. The provisional governor was welcomed, and his speeches approved on all sides.[17] The result was that the convention which met on October 25th was a body distinguished for the reputation and ability of its members.

The convention was called to order by the provisional governor, and chose as permanent chairman Herschel V. Johnson.[18] Then a message from the provisional governor was read, suggesting certain measures of finance and other state business requiring immediate action, suggesting also certain alterations in the state judiciary, but especially pointing out the chief objects of the convention, viz., the passage of those acts requisite for the restoration of the state.[19] These measures the convention quickly proceeded to pass. On October 26th it repealed the ordinance of secession and the ordinance ratifying the Confederate constitution;[20] by paragraph 20 of article I. of the new constitution it abolished slavery in the state; and on November 8th, the last day of the session, it declared the state debt contracted to aid the Confederacy void.[21] The convention provided for a general state election on the following November 15th, and to expedite complete restoration, anticipated the regular work of the legislature by creating congressional districts, in order that Georgia’s representatives might be chosen at that election.[22]

One thing now remained to be done before the President would withdraw federal power and leave the state to its own government, viz., ratification of the Thirteenth Amendment. The legislature elected on November 15th assembled on December 4th.[23] The provisional governor, according to the President’s directions,[24] laid the Thirteenth Amendment before it. The Amendment was ratified on December 9th.[25] After this the provisional governor was relieved, the governor elect was inaugurated (December 14th), and the President sent a courteous message of recognition to the latter.[26]

Thus the President, having reconstructed the state government, had restored Georgia to statehood so far as its internal government was concerned. There remained only the admission of its representatives to Congress to complete the restoration.

CHAPTER II

Whatever may have been the prevailing disposition of the white people toward the slaves while slavery flourished, shortly before the close of the war that disposition was characterized by benevolence and gratitude. In spite of the opportunities of escape, and of plunder and other violence, offered by the times, the slaves had acted with singular faithfulness and devotion.[27] The gratitude of their masters even went so far as to propose plans for the general education of the negroes.[28]

The close of the war and the advent of emancipation produced a change in the conduct of the negroes, which in time produced a change in the attitude of the white people. The negroes, from the talk which they heard and did not understand, and from their ignorant imaginations, conceived strange ideas of emancipation. They supposed it meant governmental bounty, idleness, and wealth. They abandoned their work, wandered about the country, collected in towns—in short, manifested a general restlessness and demoralization. This caused alarm and apprehension among the white people. There were other causes of friction between the two races. Many negroes, on discovering that they were free, assumed what are known as “airs;” and then as now, among things intolerable to a southern white man a “sassy nigger” held a curious pre-eminence. The airs of the negro and the wrath of the white man were both augmented by officious members of the Freedmen’s Bureau. Moreover, because the negroes had gained by the humiliation of the South, they received a share of the venom of defeat. Another element of discord was furnished by a particular part of the white population, the so-called poor whites. These saw in the new protégés of the United States not only a rival laboring class, but a menace to their social position, and hence assumed an attitude of jealousy and hatred. Such were the conditions favorable to social disturbance which followed emancipation. In the latter part of 1865 they had already begun to produce their natural result. Violent encounters between negroes and white men (in which the latter were almost always the aggressors) were noticeably frequent.[29]

To this social demoralization was added economic distress and perplexity. The devastation of the war had fallen with especial severity upon Georgia. Worse still, the people seemed unable to repair the damage or to return to productive activity. Planters seemed unable to adapt themselves to the new economic conditions. Slavery, the system which they understood, was gone; they used the new system with little success, all the less because of the restlessness of the negroes.

Such were the conditions and dangers with which the Johnson government had to deal as it best could. It was believed by northern statesmen that the situation would be mastered by enfranchising the negroes and investing them with a citizenship exactly equal to that of white persons.[30] The Georgia constitution of 1865 made it clear that the Georgia law-makers were not disciples of that school. That constitution confined the electoral franchise to “free white male citizens.”[31] It ordered the legislature at its first session “to provide by law for the government of free persons of color,” for “guarding them and the state against any evil that may arise from their sudden emancipation,” and “for the regulation of their transactions with citizens;” also “to create county courts with jurisdiction in criminal cases excepted from the exclusive jurisdiction of the Superior [county] Court, and in civil cases whereto free persons of color may be parties,” and to make rules “prescribing in what cases their testimony shall be admitted in the courts.”[32]

The legislation enacted in 1866 in the interest of the public peace and order consisted of—

1. An apprentice law. By this it was made the duty of the judges of the county courts to bind out minors whose parents were dead or unable to support them as apprentices until the age of twenty-one. A master receiving an apprentice under this law was to teach him a trade, furnish him food, clothes, and medicine, teach him habits of industry, honesty, and morality, teach him to read the English language, and govern him with humanity. On default of any of these requirements a master was to be fined. The judge having charge of this law might, on application from an apprentice or an apprentice’s friend, dissolve the contract on account of cruelty on the part of the master. An apprentice at the end of his term was entitled to an allowance from the master “with which to begin life.” The amount was left to the master’s generosity, but if he offered less than $100 the apprentice might complain to the court, which should then fix the amount.[33]

2. A vagrancy law. Vagrancy was defined in the usual language of our criminal codes. The penalty was heavier than these usually provide, because the need of suppressing the vice was more urgent than usual. A vagrant might be fined or imprisoned at the discretion of the court, or sentenced to labor on the public works for not more than one year; or he might, at the discretion of the court “be bound out to some person for a time not more than one year, upon such valuable consideration as the court may prescribe.”[34]

3. Alterations in the penal laws. These alterations were of two contrasting kinds. The penalty for burglary in the night, arson, horse stealing and rape was changed from long imprisonment[35] to death,[36] which, however, might be in every case commuted to life imprisonment.[37] On the other hand, several hundred crimes, including all the species of larceny except that mentioned above, were reduced from felonies to misdemeanors, and the penalties from imprisonment in the penitentiary to fine, imprisonment in the county jail, or whipping, at the discretion of the court.[38] This mitigation of punishment was made in consideration of the negroes’ ignorance of the nature of their offences, due to the fact that these had before been punished by their masters and not by the law. Probably the capacity of the penitentiary was also considered.

To facilitate the transition from the old labor system to the new by remedying in some degree the instability of the labor supply, the legislature made it a crime to employ any servant during the term for which he had contracted to work for another, or to induce a servant to quit the service of an employer before the close of the period contracted for.[39]

Regarding the civil rights and relations of the negroes the following legislation was passed:

1. A law in these words:

2. A provision, implied in the law above quoted, that negroes were to be held competent witnesses in all courts in cases, civil or criminal, whereto persons of color should be parties.[41]

3. Certain provisions for establishing among the negroes the regular relations between husband and wife, parent and child, in place of the irregular relations which had prevailed under slavery.[42]

4. The prohibition of marriage between negroes and white persons.[43]

This last provision, and also the exclusion of the testimony of negroes from cases whereto a colored person was not party, are of social rather than legal importance, since their effect was to separate the two races, but not to deprive the negroes of the equal protection and benefit of the law. They were like the school law, which provided that only “free white inhabitants of the state” were entitled to instruction in the public schools.[44]

The Johnson government thus assigned to the negroes a position of political incapacity, social inferiority, but equality of civil rights. This plan was very remote from that in favor in the North, but it is not thereby condemned. As to the measures of the Johnson government for remedying industrial distress and guarding against social dangers, we search them in vain for the inhuman harshness to the negroes which they were reputed to embody. This legislation of Georgia was more favorable to the negroes than that of the other Johnson governments. But the North looked at the conquered South as a whole, and if the difference of the laws of Georgia from those of other states was noticed, it was quickly forgotten. To northern public opinion the scheme for the treatment of the negroes embodied in the Georgia laws, even if its mildness had been recognized, would have been a cause of indignation. This was the consummate hour of a humanitarian enthusiasm sprung from forty years of anti-slavery agitation, and now intensified by the passions of the war. In such an hour a plan which frankly denied to the negroes political and social equality was looked upon as an offence against justice and humanity. The Georgia law-makers had sought for a plan to meet immediate necessities, not a plan for the elevation of the black race. To demand that Georgia, stricken and menaced as she was, should pass by the needs of the present and enter upon a vague scheme of philanthropy, was unreasonable. It was just as unreasonable to conclude from the course which Georgia took, that the black race in Georgia would be forever held down, or that positive encouragement would be withheld as time went on. Nevertheless the public opinion of the North made this demand and drew these conclusions.

Having stated the attitude of the Johnson government to the emancipated slave, we next come to its attitude toward the fallen Confederacy and toward the federal government. And with reference to this subject the following facts are to be noticed:

1. Almost the first act of the constitutional convention was to vote a memorial to the President in behalf of Jefferson Davis.[45]

2. The convention, instead of declaring that the ordinance of secession was an act of illegality and error, and was null and void, laconically declared it “repealed.”[46]

3. The convention anticipated the function of the legislature in order to provide pensions for the wounded Confederate soldiers and for widows of the dead.[47]

Through the legislature Georgia showed herself equally frank in expressing affection and regret for the lost cause, and equally wanting in an attitude of humility to the federal government—or at least to the dominant party in Congress. On the recommendation of the governor she rejected the Fourteenth Amendment by an almost unanimous vote, largely because of the disabilities it imposed on the leaders of the Confederacy.[48] Instead of remaining a humbly silent spectator of the controversy between the President and Congress, she boldly thanked the President for his “regard for the constitutional rights of states,” and for “the determined will that says to a still hostile faction of her recent foes, ‘Thus far shalt thou go and no farther. Peace, be still.’”[49] She continued to provide for the unfortunate champions of the Confederacy, characterizing this action as “a holy and patriotic duty.”[50] She extended expressions of “sincerest condolence and warmest sympathy” to the illustrious state prisoner, Jefferson Davis, declaring that her “warmest affections cluster[ed] around the fallen chief of a once dear but now abandoned cause.”[51]

These acts and resolutions expressed through the government the spirit which was found among the people by direct observers—a spirit of submission to irresistible force, in some cases sullen, in most cases unrepentant.[52] At that time the absence of that spirit would have been extraordinary. But the public opinion of the North regarded it not as the aftermath of war, which would soon pass, but as a spirit which, if left undisciplined, would break out in another war.

This belief, and the belief that the negroes were destined by the southern governments to suffer injustice and debasement, and that the ballot was their only salvation, gave rise to two corresponding purposes—to chasten the rebellious spirit of the South, and to invest the negroes with the voting franchise by force. To destroy the state governments of the South and rebuild them on a basis of negro suffrage would accomplish both these purposes. This plan was also supported for the sake of a third purpose, viz., to secure for the Republican party the votes of the negroes. There were thus three classes of men bent on abolishing the Johnson government. We may call them the Disciplinarians, the Humanitarians, and the Republican Politicians.

CHAPTER III

That Congress was not entirely pleased with the President’s course; that it did not agree with him considering the adoption of the Thirteenth Amendment, the most that could be asked of the southern states, and that it did not intend to give effect to his last suggestion, soon became apparent. In the Senate, on the day on which the President’s message was read, Sumner offered resolutions to the effect that before the southern states should be admitted to representation in Congress they must enfranchise “all citizens,” establish systems of education open to negroes equally with white people, and choose loyal persons for state and national offices.[54] The resolutions concluded: “That the states cannot be precipitated back to political power and independence, but they must wait until these conditions are in all respects fulfilled.”[55]

The House of Representatives, after organizing, immediately proposed to the Senate a joint committee to “inquire into the condition of the states which formed the so-called Confederate States of America, and report whether they, or any of them, are entitled to be represented in either house of Congress.” The Senate accepted the proposal, and on December 13 the committee was formed.[56]

Five months passed before the committee reported. During that interval Congress took no action determining the question at issue. A vast number of bills and resolutions was introduced proposing various modes of treatment for the southern states and various theories regarding their status, which are interesting to the historian, but all of which fell by the way. The Freedmen’s Bureau Bill, if it had become law during this period, would have implied that in the opinion of Congress the late Confederate States were simply territory of the United States and not states in the Union.[57] But this bill failed to be repassed over the President’s veto.[58] The Civil Rights Bill, which became law on April 9, 1866, made it a crime to discriminate against any person on account of his race or color under the alleged authority of any state law or custom, gave the federal judicial authorities power to arrest and punish any person guilty of this offense, and also gave the federal courts jurisdiction over any case before a state court in which such discrimination was attempted.[59] This law created entirely new relations between federal and state authority, but since it was passed as an act to enforce the Thirteenth Amendment,[60] and applied to all states alike, it committed Congress to no declaration regarding the status of the southern states.

The joint committee made its long-expected report on April 30, 1866.[61] A great number of witnesses had been examined regarding conditions in the South, whose testimony fills a large volume and purports to be the basis of the committee’s report. The committee thought that since the Johnson governments had been set up under the military authority of the President and were merely instruments through which he had exercised that power in governing conquered territory, they were not regular state governments. This belief was confirmed by the fact that the existing state constitutions had been framed by conventions acting under the constant direction of the President, and also by the fact that they had not been submitted to the people for adoption. The Johnson governments then were not state governments at all, and so could not send representatives to Congress.

The committee appealed less to this constitutional argument than to arguments of policy. It was willing to grant the “profitless abstraction” that the southern states still remained states. The people of those states had waged war on the United States. Though subdued, they were defiant, disloyal, and abusive. They showed no disposition to abate their hatred for the Union or their affection for the Confederacy. To accord to such a people entire independence, taking no measures for security from future danger; to admit their representatives to Congress; to allow conquered enemies “to participate in making laws for their conquerors;” to turn over to the custody of recent enemies the treasury, the army, the whole administration—this would be madness unexampled.

For these reasons the committee recommended a joint resolution and two bills. The resolution proposed an amendment to the Constitution forbidding any state to abridge the civil rights of citizens of the United States, or to deny to any person the equal protection of the laws, providing that a state which withheld the electoral franchise from negroes should suffer a deduction from its Congressional representation, and providing that until 1870 all adherents to the Confederacy should be excluded from voting for members of Congress and for Presidential electors. The first of the two bills was to enact “that whenever the above recited amendment [should] have become a part of the Constitution of the United States, and any state lately in insurrection [should] have ratified the same, and [should] have modified its constitution and laws in accordance therewith,” then its representatives might be admitted to Congress. The second bill was to make ineligible to office under the United States men who had been prominent in the service of the Confederacy.

A minority of the committee took issue with the majority on both its legal and its political views. The states under consideration, said the minority, had never gone out of the Union; therefore, being states of the Union, Congress could not lawfully deprive them of their rights as states. That the Johnson governments were only the machinery of military occupation, set up by the conquering general, was denied.