“The colored American asks but two things,” said the spokesman of a negro delegation about the same time, “that he have, first, complete emancipation, and secondly, full equality before American law.” To this the President replied, among other things, that he feared leading colored men did not “understand and appreciate the fact that they have friends on the south side of the line. They have, and they are as faithful and staunch as any north of the line. It may be a very easy thing, indeed popular, to be an emancipationist north of the line, but a very different thing to be such south of it. South of it, it costs a man effort, property, and perhaps life.”[462]
Two months later, June 24, in replying to an address of a South Carolina committee, he said in part: “The friction of the rebellion has rubbed out the nature and character of slavery. The loyal men who were compelled to bow and submit to the rebellion should, now that the rebellion is ended, stand equal to loyal men everywhere. Hence the wish of reconstruction, and the trying to get back the States to the point at which they formerly moved in perfect harmony.” He reminded them that as an institution slavery was gone, and said there was no hope that the people of South Carolina would be admitted into either the Senate or the House of Representatives until by their conduct they had afforded evidence of this truth. In their circumstances the true policy was to restore the State government, not through military rule, but by the action of the people.[463]
Desiring to relieve all loyal citizens and well-disposed persons from unnecessary trade restrictions, and to encourage a return to peaceful pursuits, the President removed, April 29, 1865, the interdict on all domestic and coastwise intercourse in that portion of the late Confederate States east of the Mississippi and within the lines of national military occupation. From this order, however, certain named articles contraband of war were excepted. Military and naval regulations in conflict with his proclamation were revoked. On May 22 following he announced that ports in the same district would be reopened to foreign commerce after July 1, 1865, though certain places in Texas were still denied this privilege.
The insurrection hitherto existing in Tennessee was declared at an end on June 13, 1865. The authority of the United States, this Proclamation asserted, was unquestioned within the limits of that commonwealth, and duly commissioned Federal officials were in undisturbed exercise of their functions. All disabilities attaching to the State and its inhabitants were therefore removed; but nothing contained in the order was to be construed as affecting any of the penalties and forfeitures for treason which had previously been incurred.
Ten days later, June 23, the blockade of Galveston and other ports beyond the Mississippi was rescinded. These were to be opened to foreign trade on the 1st of July succeeding. It was ordered, August 29, 1865, that after September 1 all restrictions upon internal, domestic and coastwise commerce be removed, so that even articles contraband of war might be imported into and sold in the late insurgent States, the necessity for prohibiting intercourse in those articles having in great measure ceased.
In an order dated May 9, 1865, the President declared null and void all acts and proceedings of the military and civil organizations of Virginia which had been in rebellion against the General Government; also that all persons who should exercise or attempt to exercise any authority, jurisdiction or right under Jefferson Davis, and his confederates, or under John Letcher or William Smith,[464] and their confederates, or any pretended commission or authority issued by them, or any of them, since April 17, 1861, would be deemed and taken as in rebellion against the United States, and dealt with accordingly. By the same order the authority of the United States was revived within the geographical limits known as Virginia, and the heads of the several Executive Departments were instructed to enforce therein all Federal laws the administration of which belonged to their respective offices.
To carry into effect the constitutional guaranty of a republican form of government and “afford the advantage and security of domestic laws, as well as to complete the reëstablishment of the authority of the laws of the United States, and the full and complete restoration of peace within the limits aforesaid, Francis H. Pierpont, Governor of the State of Virginia,” was assured of such assistance from the Federal authorities as was believed necessary in any lawful measures that he might adopt for extending the State government throughout that Commonwealth.[465]
The Secretary of the Treasury was directed to nominate without delay assessors of taxes and collectors of customs and internal revenue, and such other officers of his Department as were authorized by law, to execute the revenue laws of the United States. Preference in making appointments was to be given to qualified loyal residents of the districts in which their respective duties were to be performed; but if suitable persons could not be found residing there, then citizens of other States or districts should be named.
In the matter of appointments similar instructions were given to the Postmaster-General, who was empowered to establish post offices and post routes, and to enforce the postal laws of the United States in the State of Virginia.
The heads of the remaining Executive Departments, State, War, Navy and Interior, were likewise ordered to enforce the acts of Congress pertaining to their respective offices. The judge of the United States District Court for Virginia was directed to hold courts in that Commonwealth, while it was made the duty of the Attorney-General to instruct the proper officers to libel and bring to judgment, confiscation and sale, property subject to confiscation, and to provide for the administration of justice within the said State in all matters of which the Federal courts had cognizance.
It was this recognition of his government, and this assurance of support, that induced Mr. Pierpont less than three weeks afterward to remove his capital from Alexandria. An account of this event as well as of the nature of the Governor’s duties in his enlarged jurisdiction, has been anticipated.
In recognizing Mr. Pierpont as Governor of Virginia, President Johnson merely concluded to retain for reconstruction what had already been accomplished by the loyal minority of that Commonwealth. Nor is it easy to perceive why, by rejecting what had been done, he should have increased the difficulties of a situation even then sufficiently complicated. While military governor of Tennessee he had executed, and, so far as appears, without remonstrance, all the measures recommended by Mr. Lincoln, so that when he succeeded to the Presidency he was to some extent committed to the policy of his predecessor. He preserved his consistency by endeavoring to maintain that system in which he had formerly acquiesced, and in sustaining the reconstructed governments of Louisiana, Arkansas, Tennessee and Virginia it is somewhat hazardous to affirm that he acted unwisely. More than this the adherents of President Lincoln could not reasonably have expected. Mr. Johnson was not, however, required by any consideration of moment to apply that mode of restoration to the seven remaining States; nor is it by any means certain that he had a legal right to do so. With President Lincoln the problem was to preserve the Union. To effect that object he believed it necessary to institute loyal governments, and his action in so doing appears to have been clearly within his powers as Commander-in-Chief. Had his course been unwise or even prejudicial to national interests, the reorganization of those States was still a legitimate war measure to which his discretion undoubtedly extended. When Andrew Johnson became President, however, the nature of the problem had greatly changed, for even though no proclamation had yet announced the termination of the Rebellion, hostilities had entirely ceased before he issued the first of his orders on reconstruction. It was only by something like a legal fiction, therefore, that the war powers could longer be exercised. It is believed that his failure to recognize the different circumstances was an error of judgment. The danger of a renewal of the conflict was not sufficiently real to justify a continuance of the unlimited authority that might be deemed necessary in time of war. He was aware that Congress had refused to admit representatives or to count electoral votes from those States reorganized during the Rebellion, when the action of the Executive rested on the firm, if somewhat undefined, foundation of the war powers. After a majority, even in these circumstances, had pronounced against that system, on what ground could the new President base his expectation of success? Without first assuring himself of the coöperation of the Legislative branch he should not have undertaken the arduous task of reviving Union governments in those commonwealths where even the very image of civil authority had been effaced. Perhaps he had been convinced that the method of restoration was analogous to the process of terminating war with a foreign power in which the initiative is to be taken by the Executive Department of Government. On this subject Mr. Blaine acutely remarks, that, “There is nothing of which a public officer can be so easily persuaded as of the enlarged jurisdiction that pertains to his station.”[466] It was while executing his measures of reconstruction that Mr. Lincoln discovered the real sentiments and, to his surprise, no doubt, encountered the determined opposition of Congress. In the case of his successor the same excuse cannot be urged, for he was aware of the temper of the Republican majority, and appears to have consulted only his courage in espousing a cause already condemned by many of the most influential leaders of the party to which he principally owed his election.
As the order recognizing the Alexandria government marked no distinct Executive policy, speculation could still amuse or employ itself on the expected announcement by the new President. The first step in that momentous undertaking was the appointment, May 29, 1865, of William W. Holden as Provisional Governor of North Carolina. The order promulgating that measure was as follows:
Whereas the fourth section of the fourth article of the Constitution of the United States declares that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion and domestic violence; and whereas the President of the United States is, by the Constitution, made commander-in-chief of the army and navy, as well as chief civil executive officer of the United States, and is bound by solemn oath faithfully to execute the office of President of the United States, and to take care that the laws be faithfully executed; and whereas the rebellion, which has been waged by a portion of the people of the United States against the properly constituted authorities of the Government thereof, in the most violent and revolting form, but whose organized and armed forces have now been almost entirely overcome, has, in its revolutionary progress, deprived the people of the State of North Carolina of all civil government; and whereas it becomes necessary and proper to carry out and enforce the obligations of the United States to the people of North Carolina, in securing them in the enjoyment of a republican form of government:
Now, therefore, in obedience to the high and solemn duties imposed upon me by the Constitution of the United States, and for the purpose of enabling the loyal people of said State to organize a State government, whereby justice may be established, domestic tranquillity insured, and loyal citizens protected in all their rights of life, liberty, and property, I, Andrew Johnson, President of the United States, and Commander-in-Chief of the army and navy of the United States, do hereby appoint William W. Holden, Provisional Governor of the State of North Carolina, whose duty it shall be, at the earliest practicable period, to prescribe such rules and regulations as may be necessary and proper for convening a convention, composed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering or amending the constitution thereof; and with authority to exercise, within the limits of said State, all the powers necessary and proper to enable such loyal people of the State of North Carolina to restore said State to its constitutional relations to the Federal Government, and to present such a republican form of State government as will entitle the State to the guarantee of the United States therefor, and its people to protection by the United States against invasion, insurrection, and domestic violence; Provided, that in any election that may be hereafter held for choosing delegates to any State convention, as aforesaid, no person shall be qualified as an elector, or shall be eligible as a member of such convention, unless he shall have previously taken the oath of amnesty, as set forth in the President’s proclamation of May 29, A. D. 1865, and is a voter qualified as prescribed by the Constitution and laws of the State of North Carolina, in force immediately before the 20th day of May, 1861, the date of the so-called ordinance of secession; and the said convention when convened, or the Legislature that may be thereafter assembled, will prescribe the qualifications of electors, and the eligibility of persons to hold office under the Constitution and laws of the State, a power the people of the several States composing the Federal Union have rightfully exercised from the origin of the Government to the present time.
And I do hereby direct:
First. That the military commander of the Department, and all officers and persons in the military and naval service aid and assist the said Provisional Governor in carrying into effect this proclamation, and they are enjoined to abstain from, in any way, hindering, impeding or discouraging the loyal people from the organization of a State Government, as herein authorized.
Then followed instructions, similar to those contained in the order of May 9, relative to Virginia, directing the heads of the several Executive Departments to enforce those Federal laws in North Carolina of which the administration belonged to their respective offices.
Somewhat earlier on the same day was published an Amnesty Proclamation, renewing in effect the provisions of that issued by Mr. Lincoln on the 8th of December, 1863. It increased, however, the number of classes excepted from the benefits of the original offer by adding the following:
All persons who have been or are absentees from the United States for the purpose of aiding the rebellion.
All military and naval officers in the rebel service, who were educated by the Government in the Military Academy at West Point or the United States Naval Academy.
All persons who held the pretended offices of governors of States in insurrection against the United States.
All persons who left their homes within the jurisdiction and protection of the United States, and passed beyond the Federal military lines into the pretended confederate States for the purpose of aiding the rebellion.
All persons who have been engaged in the destruction of the commerce of the United States upon the high seas, and all persons who have made raids into the United States from Canada, or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British Provinces from the United States.
All persons who, at the time when they seek to obtain the benefits hereof by taking the oath herein prescribed, are in military, naval, or civil confinement, or custody, or under bonds of the civil, military, or naval authorities, or agents of the United States, as prisoners of war, or persons detained for offences of any kind, either before or after conviction.
All persons who have voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars.
All persons who have taken the oath of amnesty as prescribed in the President’s proclamation of December 8, A. D. 1863, or an oath of allegiance to the Government of the United States since the date of said proclamation, and who have not thenceforward kept and maintained the same inviolate.[467]
The proclamation provided, however, that persons belonging to the excluded classes could make special application for pardon, when such liberal clemency would be exercised by the President as was deemed consistent with the facts in each case, and with the peace and dignity of the United States.
Secretary Seward, who attested the proclamation, approved its general tenor as well as its details. At first he appears to have opposed the “Twenty-thousand-dollar exclusion,” but finally yielded to the arguments of the President, who by this description had hoped to include a numerous class that did not come under any of those specified. In this respect it possessed the comprehensive as well as the convenient character of a general warrant. All attempts to fix responsibility for secession have proved futile, and it is difficult to explain the President’s attitude toward Southern men of property unless, indeed, he meant to humiliate a class that he personally disliked, or, perhaps, he intended to act upon the principle that to be mild it is necessary first to appear cruel. Precisely why the other classes were excepted from the offer of indemnity the reader of Rebellion literature need not be informed. The amnesty proclamation applied to all the insurgent States.
Like the “Louisiana plan,” the order appointing Mr. Holden was based on that clause of the Federal Constitution which guarantees “to every State in this Union a republican form of government.” It was in his character of Commander-in-Chief of the Army and Navy, as well as Executive, that he assumed to appoint a provisional governor. The Rebellion, which in its progress had “deprived the people of the State of North Carolina of all civil government,” he described as having been “almost entirely overcome.” This condition rendered it necessary to fulfill the Federal obligation to secure to the people of that State a republican form of government. The order being self-explanatory, it only remains to observe that none but “loyal people” were to participate in electing delegates to the convention, which it was made the duty of the Governor to convoke. The term “loyal people” included all who would take the oath and receive the pardon provided for in the proclamation. These were required to be qualified voters under the laws in force immediately before the act of secession. By this provision the negroes of the State were excluded from the electoral people, and the work of reconstruction left entirely in the hands of the whites. The convention chosen by these citizens, or the Legislature that might be thereafter assembled, was authorized to “prescribe the qualifications of electors, and the eligibility of persons to hold office under the constitution and laws of the State, a power,” added the order, which “the people of the several States composing the Federal Union have rightfully exercised from the origin of the Government to the present time.”
Governor Holden in a proclamation of June 12, 1865, announced his appointment and declared his purpose to order an election of delegates to a State convention, the object of calling which was briefly noticed. He also made known his intention to commission justices of the peace for the purpose of administering the oath of allegiance and opening the polls. He urged the people to resume their accustomed pursuits; refugees were encouraged by an offer of protection to return to the State, and freedmen were instructed in the duties peculiar to their altered circumstances.
By a second proclamation, dated August 8, the choice of delegates to the proposed convention was fixed for September 21 succeeding. Some delay in appointing a date for holding the election was occasioned by a desire to afford the people an opportunity of enrolling their names and obtaining the required certificates.
By such voters as were not included in any of the excepted classes, together with the few who had been able to procure the Presidential pardon, full delegations were chosen in all but three counties. The details of this election accessible to the writer are exceedingly meagre. Owing much to the timely publication and the admirable character of the orders of General Schofield, who had exercised the functions of military governor until superseded by Mr. Holden, the contest appears to have been free from unusual violence, though newspaper correspondents, it is true, reported disturbances at several polling places and mention rumors of rioting.
The convention, which assembled at Raleigh on October 2, was composed for the most part of members who had either openly opposed or reluctantly joined the secession movement. There were few, however, who had not given aid and comfort to the enemy. In other words, they were Whigs and conservative Democrats. Every representative readily took the oath to support the Constitution of the United States. The convention organized by electing Edwin G. Reade, an ex-member of the Thirty-fifth Congress, as president. On taking his seat Mr. Reade made an appropriate and conciliatory address.
The Provisional Governor also submitted to the members of the convention a brief message in which he observed that their duties were too plain to require any suggestions from him. North Carolina, he said, attempted in May, 1861, to separate herself from the Union. That attempt involved her in protracted and disastrous war. She entered the rebellion a slaveholding and emerged from it a non-slaveholding State. “In other respects,” he declared, “so far as her existence as a State and her rights as a State are concerned, she has undergone no change.”[468] He assumed that the convention would insert in the organic law a provision forever prohibiting involuntary servitude in North Carolina. The language abolishing that institution, the form of the resolution abrogating the ordinance of secession and the nature of the action to be taken on the war debt were the most important questions before the convention.
On October 7 the repealing ordinance was passed unanimously in the following terms:
The ordinance of the convention of the State of North Carolina, ratified on the 21st day of November, 1789, which adopted and ratified the Constitution of the United States, and also all acts and parts of acts of the General Assembly ratifying and adopting amendments to the said Constitution, are now, and at all times since the adoption and ratification thereof, have been, in full force and effect, notwithstanding the supposed ordinance of the 20th of May, 1861, declaring the same to be repealed, rescinded, and abrogated; and the said supposed ordinance is now, and at all times hath been, null and void.[469]
The resolution abolishing slavery, reported on the following day, was adopted on the 9th of October, and is as follows:
Be it declared and ordained by the delegates of the people of the State of North Carolina in convention assembled, and it is hereby declared and ordained, That slavery and involuntary servitude, otherwise than for crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited within the State.[470]
Not without some reluctance there was also adopted a resolution prohibiting any future Legislature from assuming or paying any State debt created directly or indirectly for the purpose of aiding the Rebellion. There seems to have been in the convention a strong element opposed to the passage of such a measure, or at all events who preferred to refer it to a popular vote. The decision of the convention on this subject appears to have been influenced by a telegram from the President to Governor Holden, in which the former says:
Every dollar of the debt created to aid the rebellion against the United States should be repudiated finally and forever. The great mass of the people should not be taxed to pay a debt to aid in carrying on a rebellion which they in fact, if left to themselves, were opposed to. Let those who have given their means for the obligations of the State look to that power they tried to establish in violation of law, Constitution, and will of the people. They must meet their fate. It is their misfortune, and cannot be recognized by the people of any State professing themselves loyal to the Government of the United States and in the Union....[471]
The convention adjourned October 19 to reassemble on the fourth Thursday of May, 1866. Judge Reade, its president, previously delivered a farewell address, in which he said: “Our work is finished. The breach in the Government, as far as the same was by force, has been overcome by force; and so far as the same has had the sanction of legislation, the legislation has been declared to be null and void. So that there remains nothing to be done except the withdrawal of military power when all our governmental relations will be restored, without further asking, on the part of the United States. The element of slavery, which so long distracted and divided the sections, has by an unanimous vote been abolished. Every man in the State is free. The reluctance which for a while was felt to the sudden and radical change in our domestic relations—a reluctance which was made oppressive to us by our kind feelings for the slave, and by our apprehensions of the evils which were to follow him—has yielded to the determination to be to him, as we always have been, his best friends; to advise, protect, educate and elevate him; to seek his confidence, and to give him ours, each occupying appropriate positions to the other.... It remains for us to return to our constituents and engage with them in the great work of restoring our beloved State to order and prosperity.”[472]
An election, fixed for November 9, was ordered by Mr. Holden for the choice of Governor, members of a General Assembly, county officers and Representatives in Congress. On the same occasion the people were to vote on the ordinance abolishing and prohibiting slavery. The action of the convention on the Confederate debt being final, that subject was not referred to the popular judgment.
On behalf of the convention the president and other delegates soon after adjournment proceeded to Washington to acquaint Mr. Johnson with the result of their deliberations. They related to him what has already been placed before the reader. As the convention had yielded what was involved in the war, President Johnson was requested to declare on the part of the Federal authorities that the governmental relations of North Carolina had been reconciled. Notwithstanding what had been done they feared that their State delegation would be excluded from Congress by the imposition of a test oath which few men in that commonwealth could take. The convention, therefore, petitioned Congress, through Mr. Johnson, to repeal the requirement. The President, after expressing his satisfaction with what North Carolina had done, reminded the delegates that to make restoration practicable one thing still remained to be accomplished, namely, their acceptance of the amendment abolishing slavery throughout the United States.
The ordinances submitted to the people were ratified at the November election, when Jonathan Worth was chosen Governor over Mr. Holden by a majority of 6,730, in a total of 58,554 votes. The repeal of the secession ordinance was ratified by a vote of 20,506 to 2,002, and that prohibiting slavery by 19,039 against 3,970.
In a dispatch of November 27, President Johnson, thanking the Provisional Governor for the efficient manner in which he had executed his duties, said that the result of the election was greatly to damage the prospects of the State in the restoration of its government, that if the action and spirit of the Legislature were in the same direction it would greatly increase the harm already done, and might prove fatal. He hoped the mischief would be repaired.[473]
Meanwhile the Legislature during a brief session ratified, with only six dissenting votes, the Thirteenth Amendment, and elected John Pool and William A. Graham United States Senators. Seven Representatives in Congress had been previously chosen.
Mr. Holden, who continued to perform the functions of his office until the inauguration of his successor on the 15th of December, probably owed his appointment to his reputation as a Democratic editor. Though his rise to political prominence was similar to that of the President, he had not the latter’s inflexibility of principle. A secessionist in 1856, when the success of Fremont appeared probable, he soon began to recede from that position, and in 1859 was opposed to disunion; subsequently he drifted with the popular current and even went so far in an advanced stage of the Rebellion as to advocate a “last-dollar-and-last-man” resolution. But even this, together with the expression of extreme opinions, did not restore him to public confidence, and before the end of the war the Standard, which he edited, became the organ of the disaffected. Notwithstanding this wavering and inconsistent career the fact that he was generally regarded as an enemy of secession singled him out as the proper person to reorganize the government of North Carolina.
Though the President was not indifferent to the demoralized condition of his native State, that consideration alone does not appear to have induced him to begin the process of reconstruction with that commonwealth. There is strong testimony to prove that Mr. Lincoln had prepared a similar proclamation for restoring the former relations of North Carolina, and on July 8, 1867, General Grant testified before the Joint Committee on Reconstruction that he had twice heard read at meetings of Mr. Lincoln’s Cabinet a paper embodying the same provisions as that published by President Johnson.
Before taking the second step a brief interval elapsed; perhaps the President was hesitating; however this may be, he informed Hon. George S. Boutwell that “the measure was tentative.” The fears of the Massachusetts statesman and his concern for harmony in the Republican party, of which he was an able and honored leader, induced him, in company with Senator Morrill, of Vermont, to call on the President. During their conversation Mr. Johnson, when the dangers of his policy were indicated, assured his visitors “that nothing further would be done until the experiment had been tested.”[474]
Notwithstanding this deliberate assurance, the President at that time appears to have almost determined on the system that he intended to adopt, for scarcely two weeks had passed when he appointed, by a proclamation similar to that for North Carolina, William L. Sharkey, Provisional Governor of Mississippi. Within a month from the date of Mr. Holden’s appointment others were made for all the remaining States except Florida, the order for reorganizing which was delayed till July 13.[475]
The origin and development of the Executive plan having now been traced with some degree of minuteness, it is not the design of this essay to pursue circumstantially the institution of that system in the six remaining States. By proclamations almost identical with that issued in the case of North Carolina, provisional governors were appointed in all of those commonwealths before the middle of July. Though the method of reorganization in these States presented similar features, several were distinguished in some respects from the others. Observations on those differences will employ nearly all that remains to be said on Reconstruction under President Johnson.
The appointment of Mr. Holden alarmed Republican leaders; the successive proclamations for restoring the other States directed public attention to the questions involved in reconstruction. Seeing that Congress was not in session, that the President had assumed an expectant attitude, and that every plan of reunion proposed was liable to serious objection, it is not a matter of wonder that the recent Confederate authorities attempted of themselves to restore Federal relations.
These were among the considerations that induced Governor Clarke, of Mississippi, to summon the Legislature of that State to meet on May 18. In his address convoking the disloyal assembly he urged the people, in order to remove the necessity for sending Federal troops among them, to restore and preserve peace. The Legislature came together accordingly, and, among other measures, provided for the election, on June 19, of delegates to a State convention. Before that date, however, the President had appointed William L. Sharkey, an eminent jurist, Provisional Governor, thus ignoring both the measures of Mr. Clarke and the insurgent assembly. The latter was dispersed by a military order, while the Governor was carried off to a fortress in Boston harbor.
Mr. Sharkey, in a dutiful and able address, appointed August 7 as the day for holding an election of delegates to a State convention which was to meet at the city of Jackson one week later. In this proclamation, he said: “The negroes are now free—free by the fortunes of war—free by proclamation—free by common consent—free practically, as well as theoretically, and it is too late to raise questions as to the means by which they became so.”[476] Though the Governor, to avoid the delay of separate county organization, had appointed many local officials who had held their posts during the Rebellion, he required all of them to take the oath of allegiance prescribed by the President.
The convention, which assembled at the appointed time, declared the ordinance of secession null and void, prohibited slavery and made it the duty of the next Legislature to provide for the protection of the person and the property of freedmen. The lawmaking body was also to take measures for guarding both the negroes and the commonwealth against any evils that might arise from sudden emancipation. The first Monday in October was appointed for the election of State officers and members of Congress. A memorial was also adopted urging the President to remove the colored troops from the State. The members, acting apparently in their individual capacity, united in a petition for the pardon of Jefferson Davis and of Governor Clarke. The amendment of the State constitution abolishing slavery was adopted by the decisive vote of 86 to 11. After South Carolina, Mississippi contained the greatest proportion of slaves, and was thus very deeply involved in the system.
While the convention was in session the President sent to Governor Sharkey a telegram in which he made the following remarkable suggestion:
I am gratified to see that you have organized your convention without difficulty.... If you could extend the elective franchise to all persons of color who can read the Constitution of the United States in English and write their names, and to all persons of color who own real estate valued at not less than two hundred and fifty dollars and pay taxes thereon, you would completely disarm the adversary and set an example the other States will follow. This you can do with perfect safety, and you would thus place Southern States in reference to free persons of color upon the same basis with the free States. I hope and trust your convention will do this, and as a consequence the radicals, who are wild upon negro franchise, will be completely foiled in their attempts to keep the Southern States from renewing their relations to the Union by not accepting their Senators and Representatives.[477]
From the view point of practical politics this recommendation was undoubtedly a wise one, but it will scarcely be contended that it was the suggestion of enlightened statesmanship. The South, distrusting the President’s sincerity, refused to adopt his suggestion. The communication is reproduced, not to show that the President was not always impelled by the highest motives so much as to show that even before Congress had assembled he had already come to regard as “the adversary” those whose exertions secured his election.
In his proclamation appointing a date for the election of delegates Governor Sharkey advised the people, when it might be necessary in consequence of the remoteness of a military force, to form a county patrol for the apprehension of offenders. Information having reached him that in many parts of the State organized bands had been robbing and plundering, and that the Federal troops were insufficient to suppress these disorders, he urged citizens, especially the young men who had “so distinguished themselves for gallantry,” to organize promptly in each county volunteer companies, one of cavalry and one of infantry if practicable, to assist in detecting, punishing and preventing crime.
From his headquarters at Vicksburg, General Slocum, the Federal commander, immediately published an order to prevent the proposed reorganization of the militia. The contemplated force, he said, would be numerically superior to his own, and, as many of the Union troops on duty in Mississippi were freedmen, collisions would be unavoidable. The crimes referred to by Mr. Sharkey were, the General asserted, committed against Northern men, Government couriers and negroes. Southerners, it was true, had been halted by these marauders, but were promptly released and informed that they had been stopped by mistake. Citizens who recognized the persons were unwilling to disclose the names of these lawless members of the community. The State, too, he declared, had not yet been relieved from the attitude of hostility which she assumed against the General Government. Those engaged in attempts to organize the militia would be arrested.
Fearing that the President would not support General Slocum, Carl Schurz, who had been sent South on a mission to assist in carrying out the Administration policy, expressed in a communication to the President some doubt as to the wisdom of the Governor’s action. To this the President, in a reply of August 30, said he presumed that General Slocum, without first consulting the Government, would issue no order interfering with Mr. Sharkey in his effort to restore the functions of the State government. In the matter of organizing patrols Mr. Johnson took the same view as the Governor, and in that connection said, “The people must be trusted with their government, and, if trusted, my opinion is that they will act in good faith and restore their former constitutional relations with all the States composing the Union.”[478]
The lapse of fifteen months had worked a revolution in the opinions of the President. Circumstances, it is true, had changed since the delivery of his Nashville speech; the main question, however, had not greatly altered, for it was still important to determine the political people of the late insurgent States. From declaring that “rebels” must take a back seat in the work of restoration, the President had come to believe that “the people must be trusted with their government.” It is not to convict Mr. Johnson of inconsistency that his opinions are here brought into juxtaposition, but rather to inquire whether every important consideration for ignoring secessionists in 1864 had disappeared by 1865.
On representation from the Provisional Governor that the Federal commander interfered to prevent the execution of his proclamation for reorganizing the militia, the President on September 2 required General Slocum to revoke his military order. Under instructions somewhat peremptory in tone, that officer two days later rescinded his proclamation.
The condition of the freedmen, as well as their exact legal status, became about this time the subject of much discussion in Mississippi. While many continued in the service of their old masters, numbers roamed about the country in idleness, and nearly all of them had very extravagant notions of their newly acquired rights and privileges. Though the whites admitted of necessity the complete freedom, they were for the most part unprepared to grant equal rights to negroes. Between them and their employers, however, there occurred but little serious trouble. All labor was contracted for, and owners of plantations, apprehensive that labor would be difficult to secure at the beginning of the season, were anxious to make contracts for the year 1866. Toward the close of September the assistant commissioner of the Freedmen’s Bureau turned over to the civil authorities all the business of his court. To get rid of military tribunals, Governor Sharkey promised that in all cases involving the rights of negroes their testimony would be accepted.
In the election, which was held on October 9, General Benjamin G. Humphreys, late of the Confederate army, was chosen Governor; immediately thereafter he was pardoned by the President. Five Representatives in Congress were also elected. By the Legislature, which convened and organized one week later, Governor Sharkey was appointed United States Senator to fill the unexpired term of Jefferson Davis. For the long term, Mr. J. L. Alcorn was elected. The legislation relative to freedmen will be subsequently considered.
Besides his complaint to the President relative to the interference of General Slocum with the proposed reorganization of the militia, Governor Sharkey expressed dissatisfaction with the military authorities who refused to obey writs of habeas corpus issued by local judges. To this Secretary Stanton replied that the grant of a provisional government did not affect the proper jurisdiction of military courts, and that this jurisdiction was still called for in cases of wrong done to soldiers, whether white or colored, and in cases of wrong done to colored citizens, and where the local authorities were unable or unwilling to do justice, either from defective machinery, or because some State law declared colored persons incompetent as witnesses. Mississippi was to a considerable extent still under military law, and the suspension of the writ of habeas corpus had not been revoked. To a similar remonstrance the Secretary of State replied that, the commonwealth being still under martial law, the military power was supreme.
On receiving tidings of General Johnston’s surrender, Governor Brown, of Georgia, called a session of the Confederate Legislature, but General Gilmore, who commanded the department including that commonwealth, issued a counter-proclamation annulling the late Executive’s order. General Wilson, in writing the ex-Governor, used expressions that were needlessly harsh, and whether the language was his own or that of the President, to whom the commander ascribed it, the style was neither dignified nor magnanimous. Whoever may have been responsible for the phraseology, the Union General appears to have believed in a rigorous exercise of the rights of conquest. With the defeat of this attempt of the recent authorities to restore their commonwealth to its old status, Georgia remained in military hands till the appointment, June 17, of James Johnson as Provisional Governor.
In the work of reconciling the people of that State the Provisional Executive was assisted by a sensible address of ex-Governor Brown, and by the support of many leading secessionists. Now that the “irrepressible conflict” had been settled, the people appeared anxious for the reorganization of their State. The 4th of October was early fixed as the date for holding an election of delegates. The suffrage of citizens was solicited and received by candidates of ability and character. These were pledged to advocate the necessary measures for restoring their commonwealth.
The convention assembled at Milledgeville on October 25, was called to order by the Provisional Governor, and elected Herschel V. Johnson as its president. Instead of declaring the nullity of the secession and kindred ordinances the convention “repealed” them. On the question of repudiating the war debt the vote stood 133 to 117 in favor of the proposition. This resolution, however, was not carried until November 7, and appears even then to have been passed only after considerable pressure from Washington, whence the President directed or assisted by telegraph the proceedings in all the reconstruction conventions. The war debt thus declared void amounted to $18,135,775. The necessity for this action is evident; the hardships occasioned thereby can be easily imagined.
The State constitution, which was thoroughly revised, recognized the changes that had occurred in civil and social affairs. In that instrument the freedom of slaves was expressly declared, and the Legislature was required to make regulations respecting the altered relations of this class of persons. The constitution as thus amended was unanimously adopted by the convention.
Though Georgia was not the most loyal supporter of Jefferson Davis in the time of his prosperity, now that adversity had overtaken him, the convention, in a memorial to President Johnson, invoked the Executive clemency in behalf of their late chief. The convention assumed for the people their share in the crime for which Mr. Davis and a few others were undergoing punishment.
As in the case of Mississippi, the President approved the organization of “a police force” in the several counties, for the purpose of arresting marauders, suppressing crime and enforcing authority.
The Legislature, which was elected November 15, assembled at Milledgeville on the 4th of December following. With its proceedings we are not now concerned more than to observe that the Thirteenth Amendment was adopted by that body five days subsequently.[479] The measures of the Georgia Assembly were not before Congress when it convened.
Like the chief magistrates in several other Southern States, the Confederate Governor of Texas, when convinced after the surrender of General Kirby Smith that the war had ceased, took steps toward bringing his commonwealth into its old practical relations with the Union. He accordingly ordered an election of delegates to a convention to be held on June 19, but was anticipated by President Johnson, who two days earlier had appointed Andrew J. Hamilton Provisional Governor. Though the latter did not promptly appoint a day for holding the election, he announced his intention of doing so at an early date. There was probably in the minds of the less intelligent Texans a notion that emancipation was to be gradual, or that it was not yet an accomplished fact. To dispel any such idea the new Executive circulated an address which informed the public that if, “in the action of the proposed convention, the negro is characterized or treated as less than a freeman,” Senators and Representatives from Texas would vainly seek admission to the halls of Congress. The choice of delegates having been fixed for January 8, 1866, an account of the convention or of the proceedings in the Assembly subsequently organized in that State does not fall within the scope of this work. In the interval justice was administered by officers temporarily commissioned for that purpose.
The negro population, which, because of the influx from other Southern States, had doubled since 1860, presented a difficult problem in the reorganization of Texas. They knew little of the uses of freedom and were kept systematically at work only by the candid admonitions of General Granger and the Governor. Toward the close of December, however, a better feeling prevailed among them; but it appears to have been a serious problem to have kept the freedmen of Texas steadily at work. Planters throughout the State lost heavily by their inability to engage or to retain in their service laborers enough to gather the standing cotton crop. The full consideration of this subject is inseparable from an analysis of Texan legislation relative to freedmen. Though well advanced, the reconstruction of Texas under the Executive plan was not completed before the meeting of the Thirty-ninth Congress.
Nothing in the reorganization of Alabama or of South Carolina calls for especial mention. The same is true of Florida. Both the spirit and tendency of Southern legislation, however, require to be noticed, and with that examination a brief recapitulation will complete this investigation.
Before concluding this inquiry two related topics require briefly to be noticed, namely, the character of the reconstruction conventions, and the personnel as well as the spirit of the legislatures organized under their authority. As to the former it may be observed that there were several modes in which constitutional conventions could have been assembled; all, however, were objectionable because of an element of irregularity. Considering them chronologically, rather than logically, the first was the method employed by the Union men of western Virginia. The Wheeling convention of June, 1861, was composed of delegates chosen at elections called, not by the constituted authorities, for they were already committed to a policy of rebellion, but by a spontaneous popular movement inaugurated by loyal and influential leaders. The work of this body, even though revolutionary, or at least irregular in its origin, was acquiesced in by the people affected and subsequently approved by the General Government. So few, however, were the loyalists of the insurgent States generally, that it was not practicable elsewhere in the South to reorganize governments in a similar manner.
A second mode was that adopted by Mr. Lincoln. Under this method, the President, as Commander-in-Chief, protected Union minorities in their efforts to reëstablish local governments in harmony with the Federal Constitution. This plan, it is evident, could be justified merely as a military measure, and, therefore, was lawful only during the continuance of the Rebellion. On the return of peace all such provisional schemes would disappear unless tolerated by the neglect or confirmed by the legislation of Congress. The conventions held under this theory rested on the authority of the commanding officer, who was himself acting by Executive direction. In reorganizing the government of Louisiana, General Banks, it will be remembered, declared that the fundamental law of that commonwealth was martial law, which was no more than his arbitrary will. In purging the electoral people and amending the constitution of that State he acted in strict conformity with that assumption. If in the preceding pages the reconstruction measures of Mr. Lincoln have been characterized as legitimate, it must not be supposed that it was intended to assert that they would have been lawful in time of peace, for under the American system it has never been deemed competent for the national Executive to call a convention. Though the establishments instituted under his authority, except in the case of Tennessee, never received the permanent sanction of Congress, the conventions which organized these governments stand on a foundation somewhat different from those assembled by the appointees of President Johnson, for in the summer of 1865 the plea of military necessity could no longer be urged. If, therefore, the conventions held in Louisiana, Arkansas and Tennessee were tainted with irregularity, those assembled in the remaining States were undoubtedly revolutionary. Technically, however, the conventions of both classes stand on the same footing. Governor Perry, of South Carolina, regarded as revolutionary the body which he convoked to reorganize his commonwealth, and for that reason, as he alleged, dissolved the convention before it had taken final action on the important question of the Southern debt.
The course of the Confederate governors of Mississippi, Georgia and Texas, who summoned the insurgent legislatures of their respective States for the purpose of calling conventions, suggests a third mode in which the machinery of government could have been set in motion. This plan, however, presented an evident difficulty, inasmuch as these assemblies could not have been recognized without admitting in some sort the validity of the secession and kindred ordinances. Mr. Lincoln, it is true, intended, before hostilities had ceased, to permit the members of the Virginia Legislature to meet as influential individuals for the purpose of recalling their State troops from the Confederate army. The surrender of Lee occurring soon after, and the President’s action having been misunderstood, he withdrew this permission, and did it the more readily as the necessity which suggested it had passed completely away. The department commanders prevented any response to the proclamations of the Executives in the three States named above, and President Johnson by his prompt appointment of provisional governors ignored or anticipated their action. To say nothing of the revolutionary course contemplated by the ex-Confederate governors, the success of their plan required the approval or at least the connivance of Federal authorities.
Still another manner of proceeding was for Congress, by calling or authorizing conventions, to inaugurate the movement for reconstruction; but the power of the national Legislature extends only to the passage of enabling acts for Territories, and these commonwealths appear to have been neither constitutional Territories nor constitutional States. However, as some irregularity was inseparable from any system of reorganization, the Legislative branch of Government was the authority least objectionable for controlling informal changes in the nature of the Union. If powers not conferred by the Constitution must be assumed, it is better in the interests of civil liberty for the representatives of the people to transcend the organic law.
The second mode, it need scarcely be observed, was that embodied in the Executive plan. The conventions which assembled under encouragement and direction of President Johnson had an opportunity unequaled since the formation of the Constitution of winning the gratitude of the nation. By adopting an enlightened and humane policy they could have furnished an example of patriotism that would serve to influence the deliberations not only of the first assemblies to meet under the new order, but of all future legislatures in those States. It is well known that they did not prove equal to this emergency; the concessions to Northern opinion were not gracefully yielded, and lost much of their merit by having been extorted from the fears of the delegates. In some instances the conventions, by assuming functions of the ordinary legislative character, transcended their powers, and many of them “repealed” the ordinances without condemning the principle of secession. They amended and even adopted constitutions that were never submitted to the people. The civil rights of the negro were abandoned to the mercy of those who had fought to perpetuate human servitude. No provision was made for freedmen in the fundamental law, it having been assumed that the new legislatures could be trusted to extend justice equally to all classes in the community. In a word, those were disappointed who had expected from the conventions a display of civic virtues commensurate to the occasion.
The remaining topic, that is, the character of the reconstructed governments as well as the spirit and tendency of their legislation, may in this place be briefly dismissed. Not, indeed, that the subject is unimportant, for it was mainly upon this question that the Thirty-ninth Congress justified its refusal to admit members from the South, and vindicated its rigorous treatment of the subjugated States. While an investigation of public opinion in that section is essential to a correct understanding of legislative action, the full consideration of the subject belongs properly to a treatise on Congressional reconstruction, a theme to which this essay is only introductory. For the present purpose, therefore, a brief outline must suffice.
Though the reconstruction conventions were correctly regarded as revolutionary, that character would not affect the legislatures instituted by their authority if the people concerned acquiesced in their proceedings. Americans of that day were not altogether indifferent to the sacred right of revolution, even if the principle was not so highly esteemed as formerly. An objection far more serious than the irregular origin of these conventions was the spirit which animated Southern legislators.
When the Thirty-ninth Congress convened at its first session members had before them only the merest fragments of the mass of testimony subsequently reported by the Joint Committee on Reconstruction, though even then they possessed evidence of the temper of the Southern mind sufficient, they believed, to recommend the most deliberate procedure. It would not be difficult to collect from contemporary literature proofs of hostility to the General Government sufficient to justify the attitude of Congress when it assembled on the 4th of December, 1865. From various sources the Northern people had caught glimpses of the actual condition of affairs within the late Confederacy. These manifestations of unfriendliness to the Union were enough to excite suspicion, and, in a matter affecting the future welfare of a great and powerful nation, suspicion is a just ground for inquiry.
The alacrity with which the Southern people rushed to battle, as well as the vigor with which they prosecuted the war, was a phenomenon not more remarkable than the unanimity and promptness with which they apparently acquiesced in the result. It was long before the people of the North could believe that the rebellion was anything more than a leaders’ insurrection, and they could not easily be persuaded after its close that those who had fought so desperately to destroy, were sincere in their professions of loyalty to, the Union. It was not unnatural, therefore, that the late adversaries of the South would look with suspicion on her instant submission. With few exceptions Southern statesmen seemed desirous of effecting an early reunion. While various reasons might be assigned to explain this dutiful and almost unlimited obedience, it is certain that the argument chiefly relied upon by the provisional governors was that it was only by such a course that they could hope soon to be relieved of the presence among them of Yankee soldiers. Apprehension that more burdensome conditions might be imposed by Stevens and other radical leaders in Congress was, perhaps, not altogether without influence in producing this general acquiescence in the policy of the President.[480] As every citizen who engaged in rebellion had forfeited both his life and his estate, it would be prudent temporarily to conceal any feeling of resentment, or any desire of revenge. These considerations were not without influence on the conduct of both the leaders and the people. With the quick upgrowth, however, of a feeling of personal safety, encouraged, no doubt, by a lavish distribution of pardons, and with an expectation, not unfounded, that reconciliation would speedily be followed by either a restoration of, or indemnity for, confiscated property, this policy of conformity would vanish. Thus under exterior tranquillity rankled bitter memories of disaster and defeat nourishing a state of unrest which even the unquestioned influence of their late commanders could not always keep from expressing itself in acts of violence. However, as Henry Winter Davis had foretold, the Southern population generally put on the seemly garb of peace and observed the form of holding elections.
Notwithstanding that many of their most enlightened citizens recommended, and that their most trusted leaders enjoined, submission to the new order, the transition from a state of hostility was marked even at the outset by acts of the highest indiscretion. Nor were these confined to irresponsible individuals whose utterances might have been justly regarded as the momentary inspiration of passion. Some of the acts referred to were the deliberate convictions of legislative bodies, and, as these measures appear to have escaped criticism, they may fairly be supposed to reflect the sentiments of the South. In the circumstances this was especially unfortunate, postponing as it did the day of peace and reconciliation; it afforded also a decent pretext to the “Radicals,” if they desired one, for excluding the Southern delegations from Congress. It justified inquiry, and investigation was fatal to Southern claims of universal submission.
Though the exclusion of representatives undoubtedly intensified, it did not occasion the change in Southern feeling, for the Mississippi measures, presently to be noticed, were passed before the meeting of Congress. Acts of frequent occurrence tended to confirm the worst fears of that body, and long before the Joint Committee had completed their labors they were supplied with new species of violence if any description of outrage was lacking to crown their indictment. With due allowance for the fact that during many years preceding the war outrages were much more numerous in the slave than in the free States, it soon became apparent that it was unsafe to leave to the justice of Southern courts either the few Unionists who had remained faithful in that section or the recently enfranchised slaves. The estimation in which the former were held appears in the fact that in competition for office they were uniformly defeated by ex-Confederate candidates, sometimes by unpardoned, and even unrepentant ones. The feeling toward freedmen was one of extreme bitterness. Overlooking scattered acts of violence and outrage of which negroes were generally, though not always, the victims, Southern hostility toward them found unmistakable expression in the November legislation of Mississippi. On the 22d of that month was enacted a law regulating the relation of master and apprentice in the case of “freedmen, free negroes and mulattoes.” Among other things this statute provided:
That it shall be the duty of all ... civil officers ... in this State to report to the probate courts of their respective counties, semiannually, ... all freedmen, free negroes, and mulattoes, under the age of eighteen, within their respective counties, beats or districts, who are orphans, or whose parent or parents have not the means, or who refuse to provide for and support said minors, and thereupon it shall be the duty of said probate court to order the clerk of said court to apprentice said minors to some competent and suitable person, on such terms as the court may direct, having a particular care to the interest of said minors: Provided, That the former owner of said minors shall have the preference, when in the opinion of the court, he or she shall be a suitable person for that purpose.
Sec. 2.... That the said court shall be fully satisfied that the person or persons to whom said minor shall be apprenticed shall be a suitable person to have the charge and care of said minor, and fully to protect the interest of said minor. The said court shall require the said master or mistress to execute bond and security, payable to the State of Mississippi, conditioned that he or she shall furnish said minor with sufficient food and clothing, to treat said minor humanely, furnish medical attention in case of sickness, teach or cause to be taught him or her to read and write, if under fifteen years old, and will conform to any law that may be hereafter passed for the regulation of the duties and relation of master and apprentice: Provided, that said apprentice shall be bound by indenture, in case of males until they are twenty-one years old, and in case of females until they are eighteen years old.
Sec. 3.... That in the management and control of said apprentices, said master or mistress shall have power to inflict such moderate corporeal chastisement as a father or guardian is allowed to inflict on his or her child or ward at common law: Provided, That in no case shall cruel or inhuman punishment be inflicted.
Sec. 4.... That if any apprentice shall leave the employment of his or her master or mistress, without his or her consent, said master or mistress may pursue and recapture said apprentice, and bring him or her before any justice of the peace of the county, whose duty it shall be to remand said apprentice to the service of his or her master or mistress; and in the event of a refusal on the part of said apprentice so to return, then said justice shall commit said apprentice to the jail of said county, on failure to give bond, until the next term of the county court; and it shall be the duty of said court, at the first term thereafter, to investigate said case, and if the court shall be of opinion that said apprentice left the employment of his or her master or mistress without good cause, to order him or her to be punished, as provided for the punishment of hired freedmen, as may be from time to time provided for by law, for desertion, until he or she shall agree to return to his or her master or mistress: Provided, that the court may grant continuances, as in other cases; and provided further, that if the court shall believe that said apprentice had good cause to quit his said master or mistress, the court shall discharge said apprentice from said indenture, and also enter a judgment against the master or mistress, for not more than one hundred dollars, for the use and benefit of said apprentice, to be collected on execution, as in other cases.
Sec. 5.... That if any person entice away any apprentice from his or her master or mistress, or shall knowingly employ an apprentice, or furnish him or her food or clothing, without the written consent of his or her master or mistress, or shall sell or give said apprentice ardent spirits, without such consent, said person so offending shall be deemed guilty of a high misdemeanor, and shall, on conviction thereof before the county court, be punished as provided for the punishment of persons enticing from their employer hired freedmen, free negroes or mulattoes.[481]
In the matter of apprenticing minors it will be observed that the former owner, when a person satisfactory to the court, was to have the preference; in the event of his death his widow or other member of his family was, if deemed suitable, to have the preference in re-apprenticing the minor. When there was no record testimony of the date of birth, judges of county courts were empowered to fix the age of the minor. The act was to go into force immediately after its passage.[482]
The act of November 25, conferring civil rights on emancipated slaves, provided:
That all freedmen, free negroes and mulattoes may sue and be sued, implead and be impleaded in all the courts of law and equity of this State, and may acquire personal property and chooses in action, by descent or purchase, and may dispose of the same, in the same manner, and to the same extent that white persons may; Provided, that the provisions of this section [1] shall not be so construed as to allow any freedman, free negro or mulatto, to rent or lease any lands or tenements, except in incorporated towns or cities in which places the corporate authorities shall control the same.
Sec. 5.... That every freedman, free negro and mulatto, shall, on the second Monday of January, one thousand eight hundred and sixty-six, and annually thereafter, have a lawful home or employment, and shall have written evidence thereof, as follows, to wit: if living in any incorporated city, town or village, a license from the mayor thereof, and if living outside of any incorporated city, town or village, from the member of the board of police of his beat, authorizing him or her to do irregular and job work, or a written contract, as provided in section six of this act, which licenses may be revoked for cause, at any time, by the authority granting the same.
Sec. 6.... That all contracts for labor made with freedmen, free negroes and mulattoes, for a longer period than one month shall be in writing and in duplicate, attested and read to said freedman, free negro or mulatto, by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to be performed, of which each party shall have one; and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer, before the expiration of his term of service, without good cause he shall forfeit his wages for that year, up to the time of quitting.
Sec. 7.... That every civil officer shall, and every person may arrest and carry back to his or her legal employer any freedman, free negro or mulatto, who shall have quit the service of his or her employer before the expiration of his or her term of service without good cause, and said officer and person shall be entitled to receive for arresting and carrying back every deserting employee aforesaid, the sum of five dollars, and ten cents per mile from the place of arrest to the place of delivery, and the same shall be paid by the employer, and held as a set-off for so much against the wages of said deserting employee: Provided, that said arrested party after being so returned may appeal to a justice of the peace or member of the board of the police of the county, who on notice to the alleged employer, shall try summarily whether said appellant is legally employed by the alleged employer and has good cause to quit said employer; either party shall have the right of appeal to the county court, pending which the alleged deserter shall be remanded to the alleged employer, or otherwise disposed of as shall be right and just, and the decision of the county court shall be final.
Sec. 8.... That upon affidavit made by the employer of any freedman, free negro or mulatto, or other credible person, before any justice of the peace or member of the board of police, that any freedman, free negro or mulatto, legally employed by said employer, has illegally deserted said employment, such justice of the peace or member of the board of police, shall issue his warrant or warrants, returnable before himself, or other such officer, directed to any sheriff, constable or special deputy, commanding him to arrest said deserter and return him or her to said employer, and the like proceedings shall be had as provided in the preceding section; and it shall be lawful for any officer to whom such warrant shall be directed to execute said warrant in any county of this State, and that said warrant may be transmitted without indorsement to any like officer of another county, to be executed and returned as aforesaid, and the said employer shall pay the cost of said warrants and arrest and return, which shall be set off for so much against the wages of said deserter.