them, or could this be done only by the State? Who should legislate on their behalf, and what kind of laws should be made? The Southern States had ratified the thirteenth amendment with the understanding that their action fully restored them to Federal relations. They elected full lists of State and local officers, and also Senators and Representatives and claimed that to complete the restoration of Federal relations there was needed only the admission of their delegates by Congress. As to the freedmen, their judgment was fixed and unanimous; each State of itself should pass such laws concerning them as it thought expedient.

These opinions were not limited to the South. The President, in his message to Congress, in December, entertained, and elaborated them.1 The sovereignty of the States, he said, was the language of the Confederacy, not of the national Constitution. The Government of the United States and of every State was limited. The States, with a proper limitation of their power, were essential to the existence of the Constitution; its perpetuity was theirs. The first question which had presented itself for his decision, was whether the territory within the lately rebellious States should be held as conquered soil, under military authority emanating from the President. But military governments, established for an indefinite period, would offer no security for the suppression of discontent; would divide the people into vanquishers and vanquished, and would incite hatred, rather than restore affection between the sections.

To avoid immeasurable evils, which must follow military governments at the South, the President said that he had "gradually and quickly, and by almost impercep

1 Johnson's first Annual Message, December 4, 1865. Richardson's Messages and Papers of the Presidents, VI, 353-361.

240

PRESIDENT JOHNSON'S POLICY.

tible steps, sought to restore the rightful energy to the government and to the States." To this end provisional governors had been appointed, conventions called, legislatures assembled, and Senators and Representatives chosen. The United States Courts, so far as possible, had been reappointed; the blockade removed, and the administration of the General Government, in all departments, resumed over the South. This policy had been attended with great risk, but it was one that had to be taken in order to enable the States to resume their functions in the Union. In order to restore Federal relations, the States had been invited "to participate in the higher office of amending the Constitution." They had been told that adoption of the Thirteenth Amendment would put an end to doubt, jealousy and uncertainty "by making us once more a united people." Having ratified the amendment, the States should be permitted to resume their places in the two branches of the national legislature, making the work of restoration complete. But the Senate and the Houses were judges of the election, the returns, and the qualifications of their own members.

The Constitution, as interpreted by its authors and contemporaries, continued the message, and the recent acts of Congress, clearly recognized the right of each State to determine the qualifications of electors, thus precluding any attempt on the part of the President to make the freedmen voters. Such an act must apply to all colored men, North and South, and would create a new class of voters, under an assumption of power, by the President, which neither the Constitution nor the laws of the United States warranted. Let each State decide on this measure for itself. The time was not opportune for a social change so sudden and radical. But though the General Government had not the power to extend the elective franchise

in the States, it was incumbent upon it to protect the freedmen in their liberty, property and industrial rights. The law of labor by contract must take the place of the law of slavery. The States would best promote the public interest by themselves providing adequate protection and remedies for the freedmen. In his view of public law, the President had the Constitution, and the laws, precedents and practices of the government, State and national, on his side. But a new problem had arisen, involving the treatment, the rights and privileges of the freedmen, and, in its solution, the precedents and former practices of the slaveholding States were of little value. The political policy necessitated by the new order of things was oppres

sive.

Though the amendment nullified the slave codes, yet, a cruel discrimination against the freedmen was practiced all over the South. This was inevitable. Laws do not make public opinion; they are the product of industrial and social conditions. The language of the acts for the protection of the freedmen, passed by Southern legislatures during the two years following the war, gives scarcely a hint of the hostility and discrimination against the African race. These acts, of which those of South Carolina, Kentucky and Tennessee, may be taken as types, gave the freedmen equal rights with the whites to make contracts, to accumulate and inherit property, and to testify in court, and, with few exceptions,1 subjected the two

1 See the Acts of Kentucky, February 16, 1866; South Carolina, September 21, 1866, and Arkansas, February 16, 1867, on the right of freedmen to make contracts. The Act of Alabama, December 9, 1865; Kentucky, February 14, 1866; Tennessee, May 26, 1866, and the Maryland Penal Law of 1866, Section 680, conferring civil rights and the right to give testimony in negro cases. See the Act respecting vagrants in Virginia, January 15, 1866, and the Maryland Penal Act of December 18, 1866, and the Code of

242

NEGRO SUFFRAGE AN INNOVATION.

races to the same pains and punishments for crimes. Taken as a body of legislation, they appeared to be liberal and humane. True, they treated the negro as a member of a distinct and inferior race. Whatsoever provision they made for his education, or for his comfort in hospitals or asylums, was made, as far as possible, with funds raised by a separate tax, levied upon him and expended solely for his benefit.1 The acts were not numerous, but, in their racial discriminations plainly indicated the way in which legislation would be directed throughout the South. But it must be remembered that laws discriminating against free negroes had long been in force in the northern States.2 In 1866 there was not a State in the Union in which a negro stood on perfect equality with a white man.

This wall of discrimination was now about to be razed to the ground; its demolition dictated by the necessities of the country, not by the wishes of the white population. Wherever there were fewest negroes, the demand for the

1867, Section 3630. See Arkansas Act of February 6, 1867, giving the same rights as to whites except those of serving on juries, in the militia and voting; all of which may be taken as types applying to the blacks and whites alike.

1 The Kentucky Act, February 16, 1866, provided for a poll-tax of $2.00 on negroes; one-half of the funds thus raised to be expended for the education of negroes, the other half for the care of negro paupers. See also the Act of March 9, 1867, which provided for the support of negro schools in each county. See the North Carolina Act of 1869 for the support of schools; Arkansas Act, July 25, 1868, for the same. This modified the Act of March 18, 1867, which had established a system of education for whites only. See Georgia Act, December 16, 1866, which provided only for free white schools, but the Act of December 13, appropriated $10,000, with which to erect a special building for the care of insane negroes. Maryland, in 1868, established colored schools, to be supported by taxation paid by the colored people.

2 For an account of this legislation, see my Constitutional History of the American People, 1776-1850, Vol. I, Chap. xii.

obliteration of racial discrimination was strongest.1 The belief that Congress was responsible for the negro was not limited to the South. Congress itself held it, and embodied its convictions in a civil rights bill, which was presented in the Senate, by Lyman Trumbull of Illinois, on the fifth of January, 1866.2 On the twenty-ninth, the bill came up in Committee of the Whole, and its author pronounced it the most important measure that had been under the consideration of the Senate since the adoption of the Thirteenth Amendment; that had made all persons free; this was intended to give effect to the amendment by securing practical freedom to all persons within the United States. It was to obliterate all legal discriminations against the negro. What to do with him, said Senator Morrill, how to define him; what he is in American law and to what rights he is entitled was the puzzling and vexatious question.

On the second of February, the bill passed the Senate, and passed the House in an amended form on the thirteenth of March. The Senate agreed to the House amendments, and sent the bill to the President, who, on the twenty-seventh, returned it with a veto message. The bill defined citizens of the United States as "all persons born

1 Typical of demands of this kind was the second plank in the platform adopted by the Republican State Convention of Vermont, at Montpelier, June 20, 1866, "for exact justice to all persons, irrespective of color or race." The platform is given in the Annual Encyclopaedia for 1866. See also the resolutions of the Vermont Legislature given in the Congressional Globe for December 5, 1866.

2 See the Globe, p. 129; for a discussion of the measure beginning January 29, see pp. 474-607. It passed the Senate on the 2nd of February, by a vote of 33 to 12; Globe, p. 607; and the House, by a vote of 111 to 34, March 13; Globe, p. 1367. On the 6th of April, the Senate passed it over the veto by a vote of 33 to 15 (Senate Journal, p. 317), and on the 9th, the House passed it over the veto by a vote of 123 to 41; Globe, p. 1861.