Ohio History Journal

ROBERT F. HOROWITZ

Land to the Freedmen:

A Vision of Reconstruction

The Reconstruction Acts of March 1867 were much closer to the

ideas of the moderate and conservative elements of the Republican

party than to the views of the radicals. Influential Republicans such

as George Julian, Thaddeus Stevens, and Charles Sumner had

originally hoped for a more thorough reconstruction policy, which

they were never able to obtain. In fact, the phrase "Radical

Reconstruction" is in part unjustified since the final terms of the

policy did not call for any form of land redistribution for the

freedmen. Republicans were wrong in believing that with the power

of the ballot Southern blacks would have all the necessary protection

to build an industrious and stable way of life. At some time in the

future the old southern ruling class was bound to attempt to regain

political power, and without the economic strength obtained from

land ownership the freedmen would be unable to withstand the

attacks of the Redeemers on their political and civil rights.¹ As the

young French journalist Georges Clemenceau pointed out, "there

cannot be real emancipation for men who do not possess at least a

small portion of the soil."² Without some type of land redistribution,

Dr. Robert F. Horowitz is an assistant professor of history at Rutgers University at

Camden.

1. Some studies of Reconstruction that touch on these matters are the following:

Fawn M. Brodie, Thaddeus Stevens: Scourge of the South (New York, 1959), 167, 170;

John A. Carpenter, Sword and Olive Branch: Oliver Otis Howard (Pittsburgh, 1964),

69, 106-07, 111-13; Robert Cruden, The Negro in Reconstruction (Englewood Cliffs,

NJ, 1969), 35, 161; W. E. B. DuBois, Black Reconstruction in America (New York,

1935), 602; Paul W. Gates, Agriculture and the Civil War (New York, 1965), 370; Louis

S. Gerteis, From Contraband to Freedom: Federal Policy Toward Southern Blacks,

1861-1865 (Westport, CT, 1973), 5-6; David Lindsey, Americans in Conflict: The Civil

War and Reconstruction (Boston, 1974), 200; William S. McFeely, Yankee Stepfather:

General O. O. Howard and the Freedmen (New Haven, 1968), 70, 211, 235; James M.

McPherson, The Struggle for Equality: Abolitionists and the Negro in the Civil War

and Reconstruction (Princeton, NJ, 1964), 410-11, 416; Kenneth M. Stampp, The Era of

Reconstruction, 1865-1877 (New York, 1966), 123-29; Hans L. Trefousse, The Radical

Republicans: Lincoln's Vanguard for Racial Justice (New York, 1969), 369-70; Allen

W. Trelease, Reconstruction: The Great Experiment (New York, 1971), 27-28, 138, 146.

2. Georges Clemenceau, American Reconstruction, 1865-1870, ed. Fernand

Baldensperger (New York, 1928), 40.

188                                                       OHIO HISTORY

the blacks were soon forced into a position of economic dependency

and second-class citizenship in which the promise of true equality

faded. Lacking an economic base, the congressional plan of

reconstruction was thus destined to failure from the start.

This failure might have been avoided if the nation had accepted the

March 1862 reconstruction ideas of a man of vision and perception,

Congressman James M. Ashley of Toledo, Ohio. Originally an

antislavery Democrat, Ashley broke with the Democracy in 1853

when he became disillusioned with President Franklin Pierce's

proslavery and pro-Southern policies. Following the political turmoil

created by the Kansas-Nebraska Act, he became involved in the

Fusionist Movement which culminated in the formation of the Ohio

Republican party.³ He also took part in the negotiations and

discussions leading to the establishment of the national Republican

party. A friend and supporter of Salmon P. Chase, Ashley worked

diligently but unsuccessfully to help obtain the presidency for the

antislavery leader in 1856 and 1860.⁴ Strongly advocating complete

abolition of slavery and speaking out in favor of black suffrage as

early as 1856, Ashley quickly became identified with the radical wing

of the Republican party.

Elected to the United States House of Representatives in 1858, he

served for five consecutive terms. Once the Civil War started, Ashley

demanded that it be fought forcefully and without compromise, and

he consistently pointed out that there could be no true victory or

permanent peace without emancipation. Appointed chairman of the

House Committee on Territories in July 1861, he was in a unique

position to put forth his ideas on restoration and soon became one of

3. During the first half of the 1850s the old political alignments in Ohio began to

disintegrate as the second American party system collapsed nationwide. The catalyst

which fragmented the entire American political structure was the introduction of a bill

in the United States Senate on January 4, 1854, by Stephen A. Douglas of Illinois,

which eventually became the Kansas-Nebraska Act. Douglas' bill repealed the

Missouri Compromise and reintroduced the slavery issue into the political arena.

Protest meetings against the measure were held throughout the North. In Ohio

ex-Whigs, antislavery Democrats, Free Soilers, nativists, and temperance men held an

Anti-Nebraska convention in Columbus on July 13, 1854. Candidates for statewide

office were nominated and a platform was passed which called for the preservation of

the free territory established by the Missouri Compromise and which opposed new

slave states or slave territories. No single name was given to the new political

organization, and the realignment has been called the "People's Movement," the

"Anti-Nebraska Movement," or the "FusionistMovement." Eugene H. Roseboom,

The Civil War Era, 1850-1873 (Columbus, 1944), 277-86; Eric Foner, Free Soil, Free

Labor, Free Men: The Ideology of the Republican Party before the Civil War (New

York, 1970), 237-39.

4. Robert F. Horowitz, "James M. Ashley and the Presidential Election of 1856,"

Ohio History, LXXXIII (Winter 1974), 4-16.

A Vision of Reconstruction                                     189

the leading exponents of the territorial or "territorialization" theory

of reconstruction.⁵

Ashley began formulating his thoughts on territorialization as early

as June 1861. Immediately after the House was organized in special

session in July 1861, the Toledoan invited the Republican members of

the Committee on Territories to his lodgings for a discussion on the

problems of reconstruction. Ashley maintained that with the act of

secession the insurgent states had reverted to the condition of

territories, and that under the Constitution Congress had the power to

establish provisional territorial governments in the areas in rebellion.

But at that time not a single Republican on the committee was

prepared to accept Ashley's radical territorial plan. Following the

advice of his political friends, Ashley decided not to present his bill

until the regular December session of Congress, and in the ensuing

months he tried to convince his Republican colleagues on the

committee of the soundness of his ideas.⁶

On December 11, 1861, Ashley attended a meeting with Benjamin

F. Wade, the chairman of the Senate Committee on Territories, and

Secretary of the Treasury Salmon P. Chase. The three men discussed

the relationship and standing of the rebellious states to the

Constitution and the national government. All three agreed that

provisional, and later territorial, governments and courts should be

established in conquered rebel areas and that eventually Congress

should establish a procedure for readmittance to the Union.⁷

On December 23 William Vandever, an Iowa Republican acting in

Ashley's behalf, introduced a resolution instructing the House

Committee on Territories "to inquire into the legality and expediency

of establishing territorial governments within the limits of the disloyal

States and districts, and to report by bill or otherwise." The

resolution was approved by a voice vote.⁸

In January Ashley introduced his proposals to the Committee on

Territories, but no immediate action was taken. But with the Union

5. Robert F. Horowitz, "James M. Ashley: A Biography" (Ph.D. dissertation, The

City University of New York, 1973), passim.

6. James M. Ashley to Benjamin W. Arnett, November or December, 1892, in

Benjamin W. Arnett, ed., Duplicate Copy of the Souvenir from the Afro-American

League of Tennessee to Hon. James M. Ashley of Ohio (Philadelphia, 1894), 360

(hereafter cited as Orations and Speeches). Also see Ibid., 395; Herman Belz,

Reconstructing the Union: Theory and Policy during the Civil War (Ithaca, NY, 1969),

10-13.

7. Salmon P. Chase, Inside Lincoln's Cabinet: The Civil War Diaries of Salmon P.

Chase, ed. David Donald (New York, 1954), 50-51.

8. Orations and Speeches, 360; U.S., Congress, House of Representatives,

Congressional Globe, 37th Congress, 2nd session, December 23, 1861, 168; New York

Times, December 28, 1861.

190                                                     OHIO HISTORY

victories at Forts Henry and Donelson, Tennessee, interest in the

process and procedures of reconstruction gained momentum. After

discussing the matter for several weeks the territorial committee

voted on February 24, 1862, four to three in favor of reporting

Ashley's bill to the full House. Because the measure contained a

number of controversial ideas, Ashley had difficulty getting it onto

the floor. When he attempted to introduce the bill on February 27,

Clement L. Vallandigham, the Ohio Peace Democrat, objected and

indicated he would "raise a question on that bill whenever it is

brought in." It was not until another unsuccessful attempt at

introduction and after a bitter argument with fellow committee

member Aaron Harding, a Kentucky Democrat, over whether Ashley

had deliberately released an advance copy of the bill to the press, that

the measure was finally reported out of committee on March 12, 1862.9

Realizing that the bill was going to meet vigorous opposition,

Ashley requested that it be printed and then recommitted. Two

minority members of the territorial committee, James Cravens of

Indiana and Harding, immediately attacked the measure in extremely

harsh reports. George Pendleton of Ohio summed up the Democratic

antipathy for the bill by stating that the legislation "ought to be

entitled a bill to dissolve the Union and abolish the Constitution of the

United States," and moved to lay it on the table. This was quickly

agreed upon by a vote of sixty-five to fifty-six. Usually a bill is

ordered to be printed before any action is taken, but on this

occasion, because of the intense feelings against it, such an order was

not given. Not only did all the Democrats and border state Unionists

vote against the proposal, but so did twenty-two Republicans.10 The

successful move to lay the bill on the table in effect killed Ashley's

comprehensive measure.

Ashley's bill was the first to deal systematically with the

territorialization concept of reconstruction, and it set the tone for

much of the future congressional debate on the subject. According to

Ashley's reasoning, a state in rebellion divested itself of the right "to

9. Docket, December 15, 1857 to January 15, 1859, and Minutes, February 23, 1860

to December 17, 1873, U.S., Congress, House of Representatives, Committee on

Territories, 35th Congress, 1st session to 43rd Congress, 1st session, Record Group

233, National Archives, January 16, 1862, February 6, 21, 24, 1862; Congressional

Globe, 37th Congress, 2nd session, February 27, 1862, 986; Ibid., March 5, 1862, 1084;

Ibid., March 7, 1862, 1117; Ibid., March 12, 1862, 1193; New York Tribune, February

26, 1862; National Anti-Slavery Standard, March 15, 1862. When the bill was finally

reported out five members of the Committee on Territories were on record in support

of it.

10. Congressional Globe, 37th Congress, 2nd session, March 12, 1862, 1193; New

York Tribune, March 13, 1862; Chicago Tribune, March 13, 1862; New York Times,

March 13, 1862.

192                                              OHIO HISTORY

Working from these general assumptions, Ashley wished to

establish temporary governments over conquered disloyal districts.

The President would be authorized to establish civil governments in

these areas "with such names and within such geographical

boundaries as he may by proclamation designate." The civil

government so established was to be "maintained and continued in

each of the districts thus named and designated until such time as the

loyal people residing therein shall form new State governments,

republican in form, as prescribed by the Constitution of the United

States, and apply for and obtain admission in the Union as States."¹²

Because the President could set boundaries, there was no assurance

that when all the insurgent districts were back in the Union they

would again comprise eleven states. It should be noted that no

specific percentage of loyal citizens was required for completion of

the process of readmittance. Ashley's basis for the idea of state

governments "republican in form" came from Article IV, Section 4 of

the national Constitution.

In the areas recovered from the insurrectionists, the temporary

governments would consist of a governor, a legislative council of

between seven and thirteen members-the size being determined by

the President-and a superior court and such inferior courts as the

council might establish. The executive was to have the same powers

and duties as the territorial governor of Washington, and each district

was to have a secretary, a marshal, and a district attorney. According

to the bill the Senate had to consent to all presidential appointments,

and Congress was given the power to remove territorial appointees

from office and the right to veto any laws passed by the district

legislatures.¹³ This was a clear indication of Ashley's intention to

make Congress the dominant force in reconstruction.

The grant of full legislative power included "all rightful subjects of

legislation, not inconsistent with the Constitution and laws of the

United States and the provisions of this act." This implied direct

interference with slavery. Because the state governments had been

terminated, the rationale was that all former state laws were no longer

in effect, including the slave codes. Another aspect of Republican

constitutional thought was the idea that Congress had the right to

interfere with slavery in the territories, and according to Ashley's

reasoning the insurgent states were now part of the national territory.

introduced eight resolutions in the Senate, expressing the view that seceded states had

committed suicide, thus forfeiting all rights, and were therefore in the condition of

territories.

12. HR 356, section 1.

13. Ibid., sections 2, 3, and 9.

A Vision of Reconstruction                                 193

But in an effort to make the matter as clear as possible, the bill stated

that the legislative councils could not pass any law "establishing,

protecting, or recognizing the existence of slavery, nor shall said

temporary government . . . give, sanction, or declare the right of one

man to property in another." Commentators at the time, and years

later Ashley himself, pointed out that one of the main purposes of the

bill was the emancipation of all the slaves in conquered territory.14

Anticipating much of the future thought on reconstruction, Ashley's

legislation required the governor and legislative council of each

district to establish public schools, with the requirement that all

children seven to fourteen years old had to attend for not less than

three months a year. Because there was no racial qualification written

into this section, the schools were to be open to black children. He

also placed a limit of twelve hours a day of work for field hands and

laborers.¹⁵ This was an effort to protect the freedmen and poor whites

from unfair practices.

One of the most radical features of the bill was that there was no

racial requirement for electors or for grand or petit jurors; all loyal

men were granted these rights. This meant that there would be

black suffrage and jury rights in the reconstructed areas.

Excluded from all political privileges were former United States civil

and military officers, as well as lawyers, ministers, and any person

who had taken an oath to support the Constitution of the United

States but had joined the Confederacy.16 The disenfranchisement

clause was thus rather mild since it did not eliminate from political

privileges men who were supporting the rebellion but who had not

taken an official oath to uphold the Constitution. In many respects

Ashley's conceptions were quite similar to the disenfranchisement

clause of the future Fourteenth Amendment. Other sections of the

measure dealt with court terms, the salaries of territorial officials,

ports of entry, and custom duties.¹⁷

At the heart of the measure were the sections on land confiscation

and redistribution which would have provided the freedmen with a

solid economic base. The governor and legislative council of a district

were "authorized to take possession of all abandoned, forfeited, or

confiscated estates." The land was to be leased in limited quantities

not to exceed one hundred sixty acres and for not more than five

years "to actual occupants who are loyal." Ashley did not specify

14. Ibid., section 3; Orations and Speeches, 361; New York Herald, March 13, 1862,

called the measure a "Universal Emancipation" bill.

15. HR 356, section 5.

16. Ibid., section 8.

17. Ibid., sections 7, 9, and 10.

A Vision of Reconstruction                              195

though Ashley did believe that under the war powers of the

Constitution the government had a right to obtain full title to enemy

property and to dispense with it in any manner it wished. Ashley's

clear intention was that eventually ex-slaves and poor whites would

get permanent possession of some land.

Ashley wanted to make sure that part of this land would be given to

freedmen and that the large estates of the Southern planters would be

broken up. Along with a few other radical Republicans and abolitionists,

he appears to have feared the emergence of a twilight zone of

semi-serfdom for blacks in the South after the Civil War. Ashley

believed that a true democratic society could not exist in an

atmosphere where most of the land was held by one class. As he

stated in his bill, it was "the intent and purpose of this act to establish

justice and promote the peace, safety and welfare of the inhabitants

by securing all in the enjoyment of life, liberty, and the fruits of their

own labor."²⁰ Here was a promise that went unfulfilled.

Though this measure was on the whole quite sound, it did have

some weaknesses. There was, for example, no clause repudiating the

rebel debt, which Ashley would later consider to be one of the most

important parts of any reconstruction act. The fact that the legislative

council of the territorial government was appointed, with no

provisions for future elections, was undemocratic and broke with past

territorial precedents. Finally, the procedure by which a district could

apply for admission into the Union was too vague; specific steps for

obtaining statehood, such as a definite percentage of loyal citizens

and procedures for holding state constitutional conventions, should

have been spelled out, as they were in future acts.

For a number of reasons, Ashley's bill never had any hope of

passage in March 1862. Historian Herman Belz has pointed out that

Abraham Lincoln, who opposed the concept of territorialization,

undercut the measure when he established in February a military

government in Tennessee headed by Senator Andrew Johnson.

Various Republican congressmen who had previously supported

territorialization now saw no need for it, and military government

appeared to be an attractive alternative for conservative Republicans

who opposed Ashley's controversial ideas. Lincoln, the master

politician, also made concessions to antislavery opinion on March 6

by asking Congress to pass a resolution incorporating the principle of

federal aid to states which adopted a system of gradual, compensated

emancipation. The resolution passed on March 10. Though this idea

was unacceptable to advanced Republicans, it was acceptable to a

20. Ibid., section 4.

196                                                 OHIO HISTORY

certain number of moderates who now felt free to back away from

Ashley's bill.²¹

Democrats and border state Unionists voted against the legislation

because it dealt with emancipation, confiscation, and land

redistribution and because it would place the Southern states in a

position which they labeled "dependence and vassalage." They

believed that the bill was full of unconstitutional, "incendiary" ideas

which would lead to black subjugation of the white race and to

tyranny.²² Some Republicans voted against the proposal since they

believed that Ashley's territorial theory gave validity to the secession

ordinances of the southern states which were at variance with the

concept of a perpetual union. Still others held the belief that the war

would soon be over and thus could see no need for a reconstruction

policy of any sort.²³ All of this notwithstanding, any measure which

spoke of immediate emancipation, confiscation, Negro land grants,

Negro jury rights, and Negro suffrage, simply frightened too many

Republicans and broke too many precedents for it to have any chance

of passage. As Kenneth Stampp has indicated concerning a later

period, the need for confiscation and land reform was beyond the

vision and understanding of most Republicans and went against their

deeply ingrained economic morality which was based on the notion of

the sanctity of private property.²⁴

Both Ashley's contemporaries and historians since have pointed

out that there were legal problems involved in confiscation and

redistribution plans such as the one the Ohio congressman proposed.

The main obstacle was the constitutional prohibition against bills of

attainder that would work forfeiture of property beyond the life of the

person whose land had been confiscated. In July 1862, four months

after Ashley's bill was defeated, Congress, under Lincoln's prodding,

passed a clarifying resolution to the Second Confiscation Act. The

resolution said that the act could not "be so construed as to work a

forfeiture of the real estate of the offender beyond his natural life."²⁵

Lincoln believed that the Act now conformed to the constitutional

stipulation that though Congress had the power to set punishment for

21. Belz, Reconstructing the Union, 70-74, 80-81; New York Times, March 13, 1862;

New York Herald, March 13, 1862.

22. See the minority report by Cravens, Harding, and Shiel as cited above, N. 18.

23. Toledo Blade, March 8, 1862; Belz, Reconstructing the Union, 79-81. See the

minority report by Harding and Cravens as cited above, N. 18.

24. Stampp, The Era of Reconstruction, 129-31.

25. Edward McPherson, The Political History of the United States of America

During the Great Rebellion, 1860-1865 (New York, 1972 reprint ed.), 197.

198                                                         OHIO HISTORY

Thomas D. Eliot indicated that Lincoln was willing to approve a bill

striking the resolution.²⁹ In February            1864 the House of

Representatives first voted to amend the resolution, then in February

1865 voted for outright repeal. The Senate had voted in June 1864 for

complete repeal. But the two branches of Congress could never get

together on the issue, and the repeal was dropped in the final

conference committee report on the Freedmen's Bureau bill.³⁰ Thus

the President and a majority of both houses of Congress had shown

that they were in favor of repealing the qualifying resolution and were

moving toward permanent confiscation of rebel property.³¹

It was unfortunate that Congress could not come to terms with the

problem, since, as David Lindsey has shown, a land-for-freedmen

policy probably would have worked had it been passed in 1864 or

early 1865.32 But once the urgency created by the war had dissipated,

the climate of opinion soon reverted to a fear of upsetting the sanctity

of private property. Even Ashley wavered in 1866. Although he still

supported the idea of land for the freedmen, he appeared to back

away from accomplishing it by confiscation.³³ In 1868 he supported

the proposal of the South Carolina Constitutional Convention for the

establishment of a land commission to buy plantations for the state,

subdivide the tracts, and sell them at reasonable rates to freedmen.³⁴

But this was a limited policy and was not adopted in any other

Southern state. The desire for land was simply not answered during

Reconstruction.

Almost all of Ashley's original ideas eventually became reality.

28. George W. Julian, Political Recollections, 1840-1872 (Chicago, 1884), 245;

William Whiting, War Powers under the Constitution of the United States, 43rd ed.

(Boston, 1871), 409.

29. Congressional Globe, 38th Congress, 2nd session, February 9, 1865, 688-94.

30. Ibid., 38th Congress, 1st session, February 5, 1864, 519; Ibid., June 28, 1864,

3327; Ibid., 38th Congress, 2nd session, February 24, 1865, 1026. Ashley supported all

the repeal efforts. In fact, on December 14, 1863, he introduced a bill to repeal the July

1862 explanatory resolution. On May 12, 1864, Ashley voted in favor of Julian's bill to

place all confiscated and forfeited Southern land in the public domain and open it up for

homesteads for Union soldiers and black support laborers. The bill never came to a

vote in the Senate; Congressional Globe, 38th Congress, 1st session, May 12, 1864,

2253.

31. Gates, Agriculture and the Civil War, 358-59; LaWanda Cox, "The Promise of

Land for the Freedmen," Mississippi Valley Historical Review, XLV (December 1958),

434; McPherson, The Struggle for Equality, 256-57.

32. Lindsey, Americans in Conflict, 160-61.

33. Orations and Speeches, 408; Congressional Globe, 39th Congress, 1st session,

February 6, 1866, 688.

34. New York Times, April 23, 1868; Carol K. Rothrock Blesser, The Promised

Land: The History of the South Carolina Land Commission (Columbia, SC, 1969),

22-24, 28-29.

A Vision of Reconstruction                              199

Blacks were given freedom, citizenship, jury rights, and the ballot;

public schools were established in the South, and the Freedmen's

Bureau did try to regulate the labor contracts of ex-slaves. But the

Reconstruction policy which was finally adopted did not provide

blacks with a solid economic base, and Ashley's vision of "securing

all in the enjoyment of life, liberty, and the fruits of their own labor"

was not fulfilled. With the forceful execution of a strong land policy it

is conceivable that blacks might have achieved a greater degree of

equality. What Ashley clearly saw in 1862 was that if the blacks were

truly to escape servitude and stand on their own, they needed the

economic power gained from land ownership. If Ashley's 1862 plan

had been adopted, the chances of a successful reconstruction would

have been improved greatly and future problems might have been

averted. As he said in 1892, "experience has taught us that the

reconstruction measures finally enacted by Congress were not as safe

nor as desirable as my original bill."³⁵

35. Orations and Speeches, 362.