Chapter VIII: First Provisional Administration (2)

The election for delegates was held August 31, and the convention met in Montgomery September 12 and adjourned on September 30. The total vote cast for delegates was about 56,000,[931] a very large vote when all things are considered. This being a representative body of the men who were to carry out the Johnson plan of restoration, it will be of interest to examine closely the personnel of the convention. There were 99 delegates, of whom only 18 were under forty years of age, the majority being over fifty; it was a body of old rather than middle-aged men; 26 were natives of Alabama; 24 were born in Georgia; Virginia, North Carolina, and South Carolina furnished 28; Maryland, Kentucky, and Tennessee, 14; 6 were from northern states, and 1 from Ireland. There were 23 Methodists; 19 Baptists; 16 Presbyterians (the most able members), and 5 Episcopalians; 34 belonged to no church (not a mark of respectability at that time). There were 33 lawyers and 42 farmers and planters; 6 physicians, 9 merchants, 2 teachers, and 7 ministers. The proportion of ministers and non-church-members is remarkable. As to politics, 45 were old Whigs and had voted for Bell and Everett electors in 1861, 24 voted for Breckenridge, and 30 for Douglas; 18 had been in favor of immediate secession and a few of these were now called "precipitators"; 11 had been in the convention of 1861, and 10 had then voted for secession. Only one member of the convention of 1861 from the southern and central parts of the state was returned to the convention of 1865. All the others had by their course in the war made themselves ineligible. Fifty-two had had no previous experiences in public life. There were two ex-governors, two former members of Congress, and one who had been minister to Belgium.[932]

There were several extreme "union" men, a few "precipitators," who, however, made no factious opposition, and a large majority of conservative men. The votes on test questions showed a wide difference between the extremists from north Alabama and the other members. The proportion was about 63 conservatives to 36 north Alabama anti-Confederates. It was the old sectional division. The minority was made up about equally of rampant "union" men and old conservative Whigs; the majority, of the more liberal Whigs and conservative Democrats. Neither party was as united as the parties had been in 1861. There were almost as many minor divisions as there were members, but the most of them acted together in order to transact business, and none were allowed to obstruct. As a body the convention was much inferior in ability to that of 1861 and lacked experience. Nearly all were men of ordinary ability, while those of 1861 were the best from both sections of the state. Yet this was quite a respectable conservative body.[933] The secessionists and former Democrats were the ablest members, and were more inclined to accept the results of war in a philosophical spirit, and, making the best of things, to go to work to bring order out of political chaos. The _Herald_ correspondent said that John A. Elmore was the strongest man in the convention. He had been an ardent secessionist of the Yancey school, yet in the convention he did more than any other man to bring the weaker men around to correct views and harmony of action.[934]

Ex-Senator and Ex-Governor Fitzpatrick was chosen to preside, and Governor Parsons administered the amnesty oath. The convention at once notified President Johnson of the desire and intention of the people to be and to remain loyal citizens of the United States. It indorsed his administration and policy and asked him to pardon all who were not included in the amnesty proclamation of May 9, 1865.[935]

Debates on Secession and Slavery

The debate on the action to be taken as to the ordinance of secession was warm and extended over the entire session. The dispute was concerning the form of words to be used in repealing or otherwise getting rid of the ordinance of secession. One delegate proposed that it be declared "unconstitutional and therefore illegal and void"; another wanted it declared "null and void"; another, "the so-called ordinance of secession, null and void"; others, "unconstitutional, null and void"; "unauthorized, null and void"; or "unauthorized and void from the beginning." The minority proposition to declare it "unauthorized, null and void," was laid on the table by a vote of 69 to 21, the minority being from north Alabama. A proposition to declare it "unconstitutional, null and void" was lost by the same vote. And all similar propositions fared about the same.[936] However, a proposition to say that "it is and was unconstitutional" secured 34 votes against 59. Clark of Lawrence, who had been in the convention of 1861, wanted this convention to declare the ordinance of secession "unauthorized, null and void," because, he said, in 1861, the majority of the people voted for "union and coöperation," and that, as the convention refused to submit its work to the people, the people were misrepresented and the ordinance of secession was unauthorized. Yet he would not say that it was unconstitutional and void from the beginning. Other members said that the convention of 1861 had full authority. From the act of the legislature of 1860 which provided for the calling of the convention, the people understood that it had full authority and they also knew that it would use its authority to secede. "Unauthorized" would mean that there was no cause for calling the convention of 1861, and would even deny the right to secede as a revolutionary right. It would mean consent to the doctrine of passive obedience, and also that the convention of 1861 and those who supported it had usurped authority, and "we thereby impliedly should leave the memory of our dead who died for their country to be branded as traitors and rebels and turn over the survivors, so far as we are concerned, to the gibbet."[937] The ordinance favored by the majority of the convention declared that the ordinance of secession "is null and void," and was adopted by a unanimous vote.[938] All other ordinances, resolutions, and proceedings of the convention of 1861, and such provisions of the constitution of 1861 as were in conflict with the Constitution of the United States, were declared null and void.[939]

The state bonded debt in aid of the war was $3,844,500, which was held principally in Mobile. There were other indirect war debts, but no one knew the amount. On a test vote early in the session the convention was divided, 58 to 34, against repudiating the war debt.[940] Later, by a vote of 60 to 19, all debts created by the state of Alabama, directly or indirectly in aid of the war, were declared void, and the legislature was forbidden to pay any part of it, or of any debts contracted directly or indirectly by the Confederacy or its agents or by its authority.[941]

In the debate in regard to the abolition of slavery, Mr. Coleman of Choctaw[942] desired to know by what authority the people of Alabama had been deprived of their constitutional right to property in slaves.[943] He urged the convention not to pass an ordinance to abolish slavery, but to leave the President's proclamations and the acts of Congress to be tested by the Supreme Court; that there was no such thing as secession; a state could not be guilty of treason, and Alabama had committed no crime; individuals had done so; others were loyal and were entitled to their rights. Not only those who had always been loyal but also those who had taken the amnesty oath were entitled to their property;[944] those pardoned by the President were entitled to the same rights, and Congress had no authority to seize property except during the lifetime of the criminal. The Federal government had no right to nullify the Constitution. The abolition of slavery should be accepted as an act of war, not as the free and voluntary act of the people of Alabama which latter course would prevent the "loyalists" of Alabama, from receiving compensation for slaves. He denied that slavery was non-existent; Lincoln's proclamation did not destroy slavery; it was a question for the Supreme Court to decide, and to admit that Lincoln's proclamation destroyed slavery was to admit the power of the President and Congress to nullify every law of the state. For all these reasons it was inexpedient for the convention to declare the abolition of slavery.

Judge Foster of Calhoun answered that the war had settled the question of slavery and secession; that the question of slavery was beyond the power of the courts to decide, and, besides, a decision of the Supreme Court would not be respected. The question had to be decided by war, and having been so decided, there was no appeal from the decision. The institution of slavery had been destroyed by secession. The question was not open for discussion. Slavery, he said, does not exist, is utterly and forever destroyed,--by whom, when, where, is no matter. The power of arms is greater than all courts. Citizens should begin to make contracts with their former slaves. Should the Supreme Court declare the proclamations of the Presidents and the acts of Congress unconstitutional, slavery would not be restored. Whether destroyed legally or illegally, it was destroyed, and the people had better accept the situation and restore Federal relations.[945]

Mr. White of Talladega[946] proposed to abide by the proclamations of the President and the acts of Congress until the Supreme Court should decide the question of slavery. White said that he had opposed secession as long as he could; that the states were not out of the Union, but had all their rights as formerly.[947] Mr. Lane of Butler wanted an ordinance to the effect that since the institution of slavery had been destroyed in the state of Alabama by act of the Federal government, therefore slavery no longer exists. This was lost by a vote of 66 to 17.[948] On September 22, 1865, an ordinance was adopted by a vote of 89 to 3 which declared that the institution of slavery having been destroyed, neither slavery nor involuntary servitude should thereafter exist in the state, except as a punishment for crime. All provisions in the constitution regarding slavery were struck out, and it was made the duty of the next legislature to pass laws to protect the freedmen in the full employment of all their rights of person and property and to guard them and the state against any evils that might arise from their sudden emancipation.[949] Mr. Taliafero Towles of Chambers, a "loyalist," proposed an ordinance to make all "free negroes"[950] who were not inhabitants of the state before 1861 leave the state. Mr. Langdon of Mobile regretted this proposition, and thought it would do harm. Mr. Towles explained that he lived near the Georgia line and that he was much annoyed by the negroes who came into Alabama from Georgia. Mr. Patton[951] of Lauderdale opposed such a policy. It was unwise, he said; let people go where they pleased; he would invite people from all parts of the Union to Alabama. Mr. Mudd of Jefferson thought that such a measure would be extremely unwise. Mr. Hunter of Dallas said that it was very unwise, that it would do no good, and at such a time would be harmful. Passions must be allayed. Towles withdrew the resolution.[952]

Mr. Saunders of Macon introduced a memorial to the President to release President Davis. It was referred to a committee and was not heard from.[953] General Swayne of the Freedmen's Bureau sent to the convention a memorial from a negro mass-meeting in Mobile praying for the extension of suffrage to them. It was unanimously laid on the table.[954]

"A White Man's Government"

General Swayne had made an arrangement with the governor by which the state officials were required to act as agents of the Freedmen's Bureau. The convention now passed an ordinance requiring these officers to continue to discharge the duties of agents of the Bureau "until the adjournment of the next general assembly." Seventeen north Alabama men opposed the passage of this ordinance.[955]

Mr. Patton of Lauderdale proposed an ordinance in regard to the basis of representation in the general assembly. It was not correctly understood in north Alabama, which section, thinking it called for representation based on population, rose in wrath. The _Huntsville Advocate_ said: "This is a white man's government and a white man's state. We are opposed to any changes in the convention except such as are necessary to get the state into the Union again."[956] Mr. Patton explained that the purpose of his measure was to base representation on the white population. He cheerfully indorsed north Alabama doctrine, "This is a white man's government and we must keep it a white man's government."[957] The ordinance as passed provided for a census in 1866, and the apportionment of senators and representatives according to white population as ascertained by the census. The delegates from the white counties of north Alabama and southeast Alabama voted for the ordinance, and thirty delegates from the Black Belt voted against it.[958]

This measure destroyed at a blow the political power of the Black Belt, and had the Johnson government survived, the state would have been ruled by the white counties instead of by the black counties. This was partly the result of antagonism between the white and black counties.

Early in the session Mr. Sheets of Winston, "loyalist," demanded that all amendments to the Constitution adopted by the convention should be referred to the people for ratification or rejection, except such as related to slavery.[959] Mr. Webb of Greene, chairman of the Committee on the Constitution, reported that, on account of the state of the times, it was not expedient to refer the amendments to the people. Mr. Clark of Lawrence[960] wanted the people to have an opportunity to show whether they favored the work of the convention. He said that, in 1861, had the ordinance of secession been referred to the people, it would have been defeated.

The members who were in favor of not sending the amendments to the people said that there was not time, and that there were too many other elections; that the people had confidence in the convention or they would not have elected the delegates who were there. But the north Alabama delegates insisted that their constituents not only expected to have the amendments submitted to them, but that they (the delegates) had pledged that they would have the amendments sent before the people.[961] The north Alabama party could not consistently do anything but object to the adoption of the constitution by proclamation. Some had never recognized the supreme authority of a constitutional convention; others were opposed to the expediency of adoption by proclamation. By a vote of 61 to 25 the constitution was proclaimed in force without reference to the people.[962]

Legislation

The convention did some important legislative work necessary to put the business of administration in running order again. All the laws enacted during the war not in conflict with the United States Constitution, and not relating to the issue of money and bonds nor to appropriations, were ratified and declared in full force since their dates.[963] All officials acts of the state and county officials, all judgments, orders, and decrees of the courts, all acts and sales of trustees, executors, administrators, and guardians, not in conflict with United States Constitution were ratified and confirmed. Deeds, bonds, mortgages, and contracts made during the war were declared valid and binding. But in cases where payments were to be made in Confederate money the courts were to decide what the true value of the consideration was at the time.[964] Divorces granted during the war by the chancery court were declared valid.[965] Marriages between negroes, whether during slavery or since emancipation, were declared valid; and in cases where no ceremony had been performed, but the parties recognized each other as man and wife, such relationship was declared valid marriage. The children of all such marriages were declared legitimate. Fathers of bastard negro children were required to provide for them. The freedmen were placed under the same laws of marriage as the whites, except that they were not required to give bond.[966] The legislature was commanded to pass laws prohibiting the intermarriage of whites with negroes or with persons of mixed blood.[967]

In view of the lawlessness prevailing in some of the counties, the provisional governor was authorized to call out the militia in each county, and the mayors of Huntsville, Athens, and Florence were given police jurisdiction over their respective counties until the legislature should act. The ante-bellum militia code was declared in force, and all other laws in regard to the militia were repealed.[968]

The governor was ordered to pay the interest on the bonded debt of the state that was made before 1861, and the convention pledged the faith of the people that the old debt should be paid in full with interest.[969] The state was divided into six congressional districts. The negro was no longer counted in the "Federal number," and the representation of the state in Congress was thus reduced. Elections were ordered for various offices in November and December, 1865, and March and May, 1866. The provisional governor was authorized to act as governor until another was elected and inaugurated. It was ordered that in the future no convention be held unless first the question of convention or no convention be submitted to the people and approved by a majority of those voting.[970]

Finally, the convention asked that the President withdraw the troops from the state, the people and the convention having complied with all the conditions and requirements necessary to restore the state to its constitutional relations to the Federal government.[971] The convention adjourned on September 30, having been in session ten days in all. The constitution went into effect gradually, Parsons enforcing some of it; Patton and the newly elected legislature organized the government under it from December, 1865, to May, 1866. But it never became more than a provisional constitution, which was set aside by the President at pleasure.

SEC. 4. "RESTORATION" COMPLETED

By convention ordinance and by constitutional amendment the civil rights of the freedmen were made secure, family relations legalized, property rights secured; the courts of law were open to them, and in all cases affecting themselves, their evidence was admissible. The admission of negro testimony was generally approved by the bar and the magistracy, but disliked by the ignorant classes of whites. All magistrates and judicial officers who refused to admit negro testimony or to act as Bureau agents were removed from office by the governor. One mayor (of Mobile) and one judge were removed.

Affairs were going on well, though the civil government was weakened and lost prestige by being subordinated to the military authorities.[972] The convention having authorized Parsons to organize the militia to aid in restoring order, several companies were organized and instructed to act solely in aid of the civil authorities and in subordination to them. They were to act alone only when there was no civil officer present.[973]

Among the whites there was a vague but widespread fear of negro insurrections, and toward Christmas this fear increased. The negroes were disappointed because of the delayed division of lands, and their temper was not improved by the reports of adventurers, black and white, who came among them as missionaries and sharpers. There was a general and natural desire among the freedmen to get possession of firearms, and all through the summer and fall they were acquiring shotguns, muskets, and pistols in great quantities. Most of the guns were worthless army muskets, but new arms of the latest pattern were supplied by their ardent sympathizers in the belief that the negroes were only seeking means of protection. A sharper who claimed to be connected with the government travelled through some of the black counties, telling the negroes that they were mistreated and must arm themselves for protection. He sold them certificates for $2.50 each which he said would entitle the bearers to muskets if presented at the arsenals at Selma, Vicksburg, etc.[974] Hence arose the fears of the whites who were poorly armed.

In several instances where there was fear of negro insurrection the civil authorities, backed by the militia, searched negro houses for concealed weapons, and sometimes found supplies of arms, which were confiscated. There was a general desire to disarm the freedmen until after Christmas, when the expected insurrection failed to materialize; but no order for disarming was issued by the governor, and a bill for that purpose was defeated in the legislature. Some of the militia companies undertook to patrol the country to scare the negroes with a show of force,[975] and in some places disguised patrols rode through the negro settlements to keep them in order. There were several instances of unauthorized disarming and lawless plunder under the pretence of disarming the blacks, by marauders who took advantage of the state of public feeling and followed the example of the disguised patrol bands. General Swayne himself was afraid of negro insurrection, and before Christmas did not interfere with the attempts of the whites to control the blacks. After Christmas the negroes quieted down, and most of them made some pretence of working. The next case of disarming that occurred brought the interference of General Swayne, who ordered that neither the civil nor the military authorities should again interfere with the negroes under any pretext, unless by permission from himself. He threatened to send a negro garrison into any community where the blacks might be interfered with. After that, he says, the people were "more busy in making a living," and the militia organizations disbanded. Two classes of the population were now beyond the reach of the civil government, the "loyalists" and the negroes, and the civil authorities maintained that these were the source of most disorder.[976]

An act of Congress, July 2, 1862, prescribed that every person elected or appointed to any office under the United States government should, before entering upon the duties of the office, subscribe to the "iron-clad" test oath,[977] which obliged one to swear that he had never aided in any way the Confederate cause. Outside of the few genuine Union men of North Alabama, there were not half a dozen respectable white men in the state who could take such an oath. Those who had been opposed to secession had nearly all aided in the prosecution of the war or had held office under the Confederate government. The thousands who had fallen away from the Confederates in the last year of the war could not take the oath. The women could not take it, and few even of the negroes could. Those who could take the oath were detested by all, and the unfitness of such persons for holding office was clearly recognized by the administration. By law, certain Federal offices had to be filled by men who lived in the county or state. The Federal service did not exist in Alabama at the end of the war, and the President and Cabinet, agreeing that the requirement of the oath could not be enforced, made temporary appointments in the Treasury and postal service of men who could not take the oath. In Alabama the men appointed were the old conservatives, those who had opposed secession. The officers appointed were marshals and deputy marshals, collectors and assessors of internal revenue, customs officers, and postmasters. Objection was made in Congress to the payment of these officers, and Secretary McCulloch of the Treasury made a report on the subject. He stated that it was difficult to find competent persons who could take the oath, and that it was better for the public service and for the people that their own citizens should perform the unpleasant duty of collecting taxes from an exhausted people. There was no civil government whatever, and it was necessary that the Federal service be established. In regard to future appointments, he said, it would be difficult, if not impossible, to find competent men in the South who could take the oath, that very few persons of character and intelligence had failed to connect themselves in some way with the insurgent cause. The persons who could present clean records for loyalty would have been able to present equally fair records to the Confederate government had it succeeded, or else they lacked the proper qualifications. Northern men of requisite qualifications would not go South for the compensation offered. For the government to collect taxes in the southern states by the hands of strangers was not advisable. Better for the country politically and financially to suspend the collection of internal revenue taxes in the South for months or years than to collect them by men not identified with the taxpayers in sympathy or interest. It would be a calamity to the nation and to the cause of civil liberty everywhere if, instead of a policy of conciliation, the action of the government should tend to intensify sectional feeling. To make tax-gatherers at the South of men who were strangers to the people would be a most unfortunate course for the government to pursue, and fatal consequences, he thought, would follow such a policy. He asked that the oath be modified so that the men in office could take it.[978] The Postmaster-General made similar recommendations.[979]

For years after the war the test oath obstructed administration and justice in the South. The Alabama lawyers could not take the oath, and United States courts could not be held because there were no lawyers to practise before them. There were many cases of property libelled which should have come before the United States courts, but it was not possible.[980] As men of character could not be found to fill the offices, the Post-office Department tried to get women to take the post-offices, but they could not take the test oath. Many post-offices remained closed, and mail matter was sent by express. Letters were thrown out at a station or given to a negro to carry to the proper person. Juries in the Federal courts had to take practically the same oath as the "iron-clad," and the jury oath was in existence long after the others were modified. So for years a fair jury trial was in many localities impossible.[981]

The effect of the proscription by the test oaths of the only men who were fit for office was distinctly bad. It drove the old Whig-coöperationist-Unionist men into affiliation with the secessionists and Democrats. The division of the whites into different parties was made less likely. The Senate regularly rejected nominations made by the President of men who could not take the oath,[982] and the military authorities were inclined to enforce the taking of the test oath by the state and local officials of the provisional government.[983]

The convention ordered an election, on November 30, for governor, state and county officials, and legislature. There were three candidates for governor, all respectable, conservative men, old-line Whigs, from north Alabama, the stronghold of those who had opposed secession. They were R. M. Patton of Lauderdale, M. J. Bulger of Tallapoosa, and W. R. Smith of Tuscaloosa.[984] The section of Alabama where the spirit of secession had been strongest refrained from putting forward any candidate. The radical "loyalists" had no candidate. The few prominent men of that faction saw that it would be political suicide for them to commit themselves to the Johnson plan after he had begun the pardoning process, and were now working to overthrow the present political institutions. Only in case the plan of the Radicals in Congress should succeed would the "loyalists" get any share in the spoils. The Conservative candidates were in sympathy with the north Alabama desire for "a white man's government." Mr. Patton in the late convention had secured the revision of the constitution so as to base representation on the white population. During the war General M. J. Bulger, the second candidate, made a speech at Selma in which he said he had opposed secession and had refused to sign the ordinance, but had deemed it his duty to fight when the time came and had served throughout the war. There could be, he said, no negro suffrage, no negro equality.[985] W. R. Smith had been the leader of the coöperationists in the convention of 1861. The election resulted in the choice of R. M. Patton of Lauderdale over Bulger and Smith by a good majority.[986]

The new legislature met on November 20, but Patton was not inaugurated until a month later, owing to the refusal of the Washington administration to allow Parsons to resign the government into the hands of what the administration intended should be the permanent, "restored" state government. The object in the delay was the desire of the President to have the Thirteenth Amendment ratified before he relinquished the state government. It was a queer mixture of a government--an elected constitutional legislature and a governor and state administration appointed by the commander-in-chief of the army.[987] The legislature was recognized, but the governor elected at the same time was not. Several acts of legislation were done by this military-constitutional government during the thirty days of its existence, the most important being the ratification of the Thirteenth Amendment by the legislature. This was done with the understanding, the resolution stated, that it did not confer upon Congress the power to legislate upon the political status of the freedmen in Alabama.[988] The amendment was ratified December 2, 1865, and on the 10th, Secretary Seward telegraphed to Parsons that the time had arrived when in the judgment of the President the care and conduct of the proper affairs of the state of Alabama might be remitted to the constitutional authorities chosen by the people. Parsons was relieved, the instructions stated, from the trust imposed in him as provisional governor. When the governor-elect should be qualified, Parsons was to transfer papers and property to him and retire.[989] On the strength of these instructions Governor Patton was inaugurated December 13, 1865. In his inaugural address the new governor said that the extinction of slavery was one of the inevitable results of the war. "We shall not only extend to the freedmen all their legitimate rights," he stated, "but shall throw around them such effectual safeguards as will secure them in their full and complete enjoyment. At the same time it must be understood that politically and socially ours is a white man's government. In the future, as has been the case in the past, the state affairs of Alabama must be guided and controlled by the superior intelligence of the white man. The negro must be made to realize that freedom does not mean idleness and vagrancy. Emancipation has not left him where he can live without work."[990]

Though Patton was inaugurated on December 13, the Washington authorities did not authorize the formal transfer of the government until December 18, and the charge was made on December 20, 1865.

The legislature at once elected ex-Governor Parsons and George S. Houston to the United States Senate. The people had already elected six congressmen of moderate politics.[991] So far as concerned the state of Alabama, the presidential plan of restoration was complete, if Congress would recognize the work.

A proclamation of the President on December 1, revoking and annulling the suspension of the writ of _habeas corpus_, expressly excepted all the southern states and the southern border states. It was not until April 2, 1866, that the President declared the rebellion at an end.[992] He had little faith in his restored governments, or else he liked to interfere, and he still retained the power to do so.