We have a Duty to Perform

“We might have been a great and free people together.” Addressing the king of Great Britain in 1776, Thomas Jefferson included that sentiment as part of his original draft of the Declaration of Independence. The same thing could have been said about the American people almost one hundred years later.

After the civil war, the nation set about the hard work of correcting the inequities of the political, social, and economic legacy of slavery. On February 1, 1865 - although he was not legally obligated to do so - Abraham Lincoln signed the Thirteenth Amendment that outlawed slavery. He told the crowd that for the war to end, it was absolutely essential to uproot “the original disturbing cause.” This was, of course, an incredible evolution for the president who, just thirty months earlier said “if I could save the union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that.”

But Lincoln was also concerned with bringing the former confederate states back into the Union. It was these two objectives – folding the newly emancipated into the fabric of American citizenship and forging a renewed kinship with the former slaveholding states (those who had actually seceded from the Union) – that made Reconstruction, as Lincoln would describe it four days before his assassination, “fraught with great difficulty.”

In “We have a Duty to Perform” – the first episode of Season 2 of Hidden Legal Figures - we probe into the competing legal and political viewpoints that led to the beginning of Reconstruction and we introduce some major figures that were central to the legal efforts associated with it.

WHAT IS RECONSTRUCTION?

In its simplest terms, Reconstruction could be described as trying to put something together that had been torn apart because it had not been put together correctly from the beginning.

As the civil war was drawing to a close, many began to turn their attention to what it would take to accomplish the goal of mending the nation. Eric Foner is regarded as one of the nation’s foremost experts on Reconstruction and he has long made the connection between that often ignored and little understood period to the challenges we face in our present times.

There are certain issues, he says, that are the source of our persistent agitation in American politics today, and each of them are all Reconstruction questions. Citizenship, voting rights, the relationship between political and economic democracy, the relative powers of the national and state governments, and the proper response to violence and domestic terrorism were the set of issues at the crux of post-civil war America.

The initial principal figures in addressing these issues were Abraham Lincoln and the “Radical Republicans” in Congress. The radicals were members of Lincoln’s party who were insistent on investing black people with all the rights, privileges, and immunities that were enjoyed by whites and punishing those who waged rebellion against the Union. Thaddeus Stevens, a congressman from Pennsylvania, and Senator Charles Sumner from Massachusetts, were the main forces of what would later become called congressional reconstruction.

Reconstruction would become the preferred term to describe the task at hand. Those like Stevens rejected the softer term “restoration” saying that it would “replant the seeds of rebellion.” Most historians set the dates for reconstruction between 1865 – 1877, but Lincoln had actually put forth “a plan of reconstruction” as early as December 1863, during his annual state of the union message to Congress with his Amnesty and Reconstruction Proclamation.

PRESIDENTIAL RECONSTRUCTION

It wasn’t really a post-war plan to reorganize the south. Instead, Lincoln’s amnesty proclamation was a war-time measure designed to get whites to detach themselves from the confederacy. The proclamation would forgive those who took part in the rebellion if they pledged an oath to obey the Constitution and all emancipation laws. It also would readmit states to the Union if their governments if ten percent of all the voters in the 1860 presidential election would sign the oath and if the state governments would adopt a provision recognizing the permanent freedom of black people and provide for their education.

By February 1865, Lincoln would have another war-time measure at his disposal. Congress passed the Bureau of Freedmen’s, Refugees, and Abandoned Lands bill, more commonly called The Freedmen’s Bureau. This bill was set up as an agency of the Department of War, coordinated by the Army, as a way to organize a system of labor between black workers and white planters, to establish schools, and to administer lands that had been confiscated by the Union army.

With the Amnesty Proclamation and the Freedmen’s Bureau in place, Lincoln had adequate tools – and congressional acquiescence - to exercise authority over how Reconstruction would be conducted. This was its first phase, aptly called Presidential Reconstruction.

Two days after Robert E. Lee surrendered his confederate troops to Ulysses S. Grant at Appomattox, Lincoln addressed a crowd outside the White House. This is where our episode begins - complete with the sounds of the crickets making their presence known - in the early evening of Tuesday, April 11, 1865.

In his remarks, Lincoln offers his support for the right to vote being extended to the colored men, those who were “very intelligent” and “on those who serve our cause as soldiers.” Standing among those gathered on the grounds were John Mercer Langston. Langston was president of the National Equal Rights League, an organization that had long pushed for black voting rights. In 1854, Langston became the first black man to be admitted to practice law in Ohio. He would also become the founding dean of Howard University Law School and the nation’s first black person elected to public office.

Another person in the crowd was John Wilkes Booth. Unlike Langston, Booth was not pleased with Lincoln’s support of black voting rights. Those standing near Booth, who at the time was an actor, heard him exclaim, “that means nigger voting. By God…that is the last speech he’ll ever make!” Booth would assassinate Lincoln just three days later.

With Lincoln dead, the reins of presidential reconstruction would be assumed by vice president Andrew Johnson, an avowed and unapologetic sympathizer to the cause of states’ rights and the needs and concerns of poor white southerners, as situated in the context of white supremacist notions. Lincoln had selected the former Tennessee governor to be his running mate in the 1864 election to appease the concerns of states like Maryland, Delaware, Kentucky, and Missouri. Although they were slaveholding states like their southernmost counterparts, they did not secede from the Union. These “border states” formed a sort of middle ground – a region of moderation – Lincoln needed to conclude the war and to begin to forge lasting peace.

But Johnson’s ascendancy to the presidency changed the political calculus substantially. In opposition to the Radical Republicans, he was more interested in gaining for the former confederate states, readmission to the Union on terms that did not include voting or other citizenship rights for the newly emancipated. He wanted full and complete pardons without having to contend with any loyalty oaths.

If Johnson were to have his way, new representatives would be elected to serve in Congress giving greater electoral power to the southern states. More importantly, Johnson would not have to contend with any radical legislation offering rights to the negro passed by Congress, and even if it did adopt such measures, there would not be enough votes to override a presidential veto. Congress was well aware of this aspect of its electoral prominence when it sought to extend the duration of the Freedmen’s Bureau.

THE FREEDMEN’S BUREAU

It was originally supposed be in effect for one year after the war. Its primary goals were to build schools and hospitals for the newly emancipated and to provide them land. Land had been part of a promise that hearkened back to a December 1864 meeting in Georgia between William Sherman and a group of black ministers. They told Sherman that what they needed to take care of themselves was “tillable soil and to be free from white oppression.” That led to the issuance of Field Order No. 15, confiscating lands that had previously been owned by white planters.

The plans of the Freedmen’s Bureau were to use the proceeds from the sale of lands that hand been confiscated by the Union Army during the Civil War to pay for the construction of schools and hospitals. In addition, it administered contracts between black workers and white planters. Bureau agents were empowered to file lawsuits in federal and local courts on behalf of black workers whose wages fell below the $144 annual amount recommended by the Bureau.

Johnson issued his own amnesty proclamation in May 1865, effectively nullifying Sherman’s field order. It restored the lands to its former owners and gave blacks until the end of the year to relinquish it and leave. In addition, southern states had enacted “Black Codes” in response to the authority of bureau agents to prosecute white planters who were in violation of Bureau contract guidelines. These codes prohibited black people from serving on juries and from bringing legal action against whites. It also limited jurisdiction of certain cases – the kinds that were being handled by Bureau agents – to local courts. And the judges were selected and appointed by the white planters.

Congress adopted legislation to extend the authority of the Freedmen’s bureau for an additional year and passed the nation’s first Civil Rights law, but Johnson vetoed both measures. Congress overrode his veto of the civil rights law, which ushered in the second phase of the era, called congressional reconstruction.

SPECIAL EPISODE FEATURES

In our first season, we were able to find and use archival audio footage of the legal figures we highlighted. However, sound recording would not be invented until the late 1870’s, and we do not have any audio record of their voices. During this season, we are fortunate to have the voice talents of a few friends.

In this episode, Yvonne Godfrey portrays Abraham Lincoln. Yvonne is a partner in the law firm of Harris, Lowry, & Manton. It may be somewhat unusual to have the sixteenth president portrayed by a female, but historical accounts indicate that Lincoln had a high-pitched voice, and having a female give voice to Lincoln seemed to make sense.

Other voice talent includes Marvin Cummings as John Mercer Langston, Kerwin D. Sims as Sidney Andrews, and Quintin McGhee as Thaddeus Stevens. Each of these “actors” along with others will reprise their roles when the figures appear throughout the season.

Although the podcast mainly highlights the work of lawyers and judges in human and civil rights issues, the exploration of the legal efforts associated with the Reconstruction era is incomplete without some of the non-lawyers whose work shows how and why the law was a necessary component in addressing the challenges of the times. One of those is Sidney Andrews who was a reporter for the Chicago Tribune.

Andrews was a close friend and confidante of Abraham Lincoln. Between September and November 1866, Andrews traveled in the Carolinas and Georgia to observe first-hand the conditions of the south. He would publish his account in a book called The South Since the War. His observances will show up throughout the season.

Today, the disturbing reminder of our warped racial landscape comes to us courtesy of on the spot cellphone videos. Someone captures the brutal slaying of an unarmed citizen by a rogue member of our law enforcement community, posts it on social media platforms, and within minutes, an entire nation is galvanized.

The dispatches by people like Andrews functioned in the same manner during the Reconstruction era, and we think it is important to include them in this historical recall as a way of bringing forth “the truth, the whole truth, and nothing but the truth.”