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Reconstruction Period Research Forum

1865: Defining the Tasks of Reconstruction

In May 1865, General Q. A. Gilmore, commanding the U.S. military department that included Georgia, declared that “the people of the black race are free citizens of the United States” —a pronouncement reprinted in newspapers throughout the State. But an army officer, even a victorious Union general, was not a state legislature. Likewise, in June 1865, General James H. Wilson, at his headquarters in Macon had written to the justices Bibb County Inferior Court that, to overcome the “practical difficulty” of enforcing Georgia law, military authority could promulgate “that the statutory enactments applicable to free men of color and slaves, be suspended and that all men shall be regarded as white.” In July he wrote to a subordinate officer that all laws specifically “having reference to the negro either as a slave or Free Colored have ceased to exist and are null and void.”—however Wilson never issued a general military order imposing such a policy. Neither did his successors. So, were newly-freed non-white Georgians citizens in the eyes of state law? The answer from the Georgia General Assembly in November 1865 would be a resounding, “No!”

In the months immediately after the end of the Civil War, two Upson County citizens, John Bland and Jesse Owen, saw opportunity to open a retail liquor business. A 33-year-old Confederate veteran, Bland had been a tradesman—carriage trimmer—before the war, who had accumulated a modest amount of capital; Owen was the eighteen-year-old son of a successful yeoman farmer. The two opened their business about August 1865, and Jesse Owen served as bartender. They had only been in business three months when the Upson County Grand Jury, at the November 1865 term of Superior Court, charged Jesse with the crime of furnishing “a negro man, a free person of color, . . . with spiritous liquors” without knowledge or consent of the man’s employer or guardian. The same grand jury brought similar charges against shop-keepers Ransom Sweeney and Jennings Thompson (the latter often a target of past grand jury scrutiny for his trading with slaves), but the trial of young Jesse Owen would reveal that the fundamental issue in these cases was not the alleged criminality of a few white men, but rather the legal status of freedpeople in Georgia. Were they truly free and equal to whites in their civil liberties, or were they still subordinate to the control of whites, in a permanent state of dependency, like antebellum free persons of color?

At Jesse Owen’s trial in Upson Superior Court, John Bland testified that he saw his bartender sell liquor at the bar to Stephen and Henry, freed former slaves of Thomas S. Sharman, and to Guilford Speer and his son Charles Guilford [aka Charles Speer], formerly slaves of G. L. F. Birdsong. Bland offered the feeble defense that “he supposed they [he and Owen] had a legal right to sell liquor to freedmen” because “the people of the county traded with freedmen.” Judge Alexander M. Speer instructed the jury that, under Georgia law in force in 1865, any former slave, or any person having at least “one eighth Negro blood in his veins” was a free person of color, subject to all “the disabilities” imposed on a person of color under Georgia law, “unless these disabilities are suspended or removed by military authority.” Owen was convicted and sentenced to pay fifty dollars and ten days imprisonment in the county jail.

The ink was barely dry on Jesse Owen’s conviction when “a large and respectable” number of local citizens petitioned Governor James Johnson to remit Owen’s sentence. Johnson signed a remission on December 11, 1865, three days before the end of his brief term in office. Owen no longer had to serve a sentence or pay a fine, but his conviction remained on his record.

In hindsight it seems odd strategy that Owen’s defense team, James W. Greene and Peter W. Alexander—two of the most experienced members of the Upson bar—failed to offer a vigorous defense at trial. Instead they drafted a lengthy appeal to the Georgia Supreme Court, arguing (in essence) that the trial judge’s instructions to the jury were erroneous, because “the freedmen of this State lately emancipated by the actions of the . . . United States” were not “‘free persons of color’ within the meaning of the laws.” The appeal seems to have been dropped after the lawyers read Georgia’s new constitution, signed into law 7 November 1865 -- but perhaps their appeal had only been a stalling tactic to suspend Jesse Owen's punishment until the Governor's remission could come through.

Georgia’s new constitution explicitly contrasted “citizens” with “free persons of color” and charged the legislature with responsibility to legislate “for the government of free persons of color.” Among other distinctions, the constitution said only “free white male citizens” over age 21 could vote. Black men could not serve on juries because only registered voters could be in the jury pool.

Between December 1865 and March 1866 the Georgia General Assembly defined “all negroes, mulattoes, mestizoes, and their descendants, having one-eighth negro, or African blood, in their veins, shall be known in this State as ‘persons of color’.” The legislature passed laws allowing free persons of color to sue and be sued, and to testify in court where their own interests were concerned. They could make and enforce contracts, inherit, “purchase, lease, sell, hold and convey, real, and personal property,” and would not “be subjected to any other or different punishment, pain or penalty for the commission of any act or offence, than such as are prescribed for white persons, committing like acts or offences.”

The new laws legitimated marriages where freedpeople were “now living together as husband and wife” (that’s why you don’t find retroactive marriage licenses for Georgia’s freed couples, as you do in many other states). The law also protected white men from responsibility for any slave children they had fathered by declaring “every colored child heretofore born [is] the legitimate child of his mother, and also, of his colored father, if acknowledged by such father.” (Note that white fathers did not legally have the option to declare their paternity of colored children.)

Houston H. Holloway, born a slave in Upson County, remembered fifty years later the glorious day he was emancipated, writing, “the Thought thrils me at this day. Just think of it! I had been sould 3 times.” But while Emancipation in the summer of 1865 brought liberty from sale, arbitrary punishment, and family separation, and granted certain important legal rights, it did not bring citizenship or equal civil rights to the newly-freed people of Upson or Georgia. That would be a task for Reconstruction, partially realized by 1872, and would begin a struggle that did not end until 1964; and some would argue is ongoing even today.

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1865: Defining the Tasks of Reconstruction
Re: 1865: Defining the Tasks of Reconstruction

18 Dec 2002 :: 14 Nov 2008
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