Chapter V: Part 5

By an act of Congress approved April 7, 1798, all that tract of land which today includes the States of Mississippi and Alabama, was constituted one district and called the "Mississippi Territory." Major Winthrop Sargent, a native of Massachusetts, was appointed governor and judges were empowered to frame a code of laws for the Territory, to be drawn from the statutes of other States. This code, known as "Sargent's Code" has been characterized by an able political writer as "directly at variance with all Statute law in America, and utterly repugnant to any known system of jurisprudence derived from the common law of England."[65] Certainly this is true of that part of it "directing the manner in which Money shall be Raised and Levied to defray the charges which may arise within the Several Counties."[66] According to its provisions, the court of general quarter sessions in each county was authorized to make an estimate of the county's average annual expenditure, the estimate to be submitted to the governor and one or more of the territorial judges for approval. The amount approved was then apportioned among the several towns within the county by commissioners biennially appointed by the court of common pleas. If the town numbered sixty or more free citizens, two commissions were appointed; if one hundred or more, three commissioners. These commissioners received the returns of taxables in each township, and assessed the property therein. It was specified that the commissioners should ascertain "the names of all free men, inmates, hired male servants (being twenty-one years of age) and whether profitable or chargeable to the employers" * * * and obtain "a list of all lands not being the property of the United States or appropriated to public uses, the tenements, houses, cabins or other buildings wherein people dwell and which are rented and afford an income to the owners, and all ferries, stores, shops, warehouses, mills, gins, keel or batteaux, boats of the burthen of twenty barrels and upward producing a yearly income, and of the bound male servants and male slaves above the age of sixteen and not exceeding fifty; draught oxen, saddle and draught horses, cows penned or kept up and immediately productive to the owners; together with the stock cattle, including sheep and swine intended for market and thereby productive of annual income and profit."

Lands were assessed "in just proportion to their value," with special regard to their annual profit, and no one having visible property less than one dollar per head annually, save by a due proportion of labor in the opening and keeping in repair highways and public roads. This enumeration, viewed in the light of modern interpretation, virtually means a graduated income tax applied to town and county government. The valuation of real estate was determined, not by its intrinsic worth or actual selling value, but by the annual income [profit] which, on the average, it was deemed likely to produce. Taxation was altogether local, there being no territorial levy as distinguished from the biennial county and township levies. This localization of fiscal activity, an income [profit] valuation, and the fact that visible specific property bore all, or nearly all the burden of taxation, are thus the most striking characteristics of Mississippi's primitive scheme of taxation.

The collection of taxes was vested in the sheriff, who was _ex-officio_ the county collector, as he is today. This officer had powers of imprisonment and distraint. The commissioners appointed by the County Court as assessors were allowed $1 per day, and the sheriffs were authorized to keep 1% of their collections before making their reports to the county treasurers.

This crude fiscal system devised by Sargent remained in effect without substantial modification until 1815. In that year a law was passed providing for a distinct territorial tax and specifying that county taxes should be levied upon the same property and objects enumerated as were within the territorial schedule.[67] County taxes, however, could not exceed one-half of the territorial tax. Henceforth, there was to be commonwealth taxation, as distinguished from purely local taxation. The territorial schedule comprised a general list of ratable objects with fixed valuations. Land was divided into six classes, each class having three qualities. The bases of classification were proximity to the city of Natchez and distance from the Mississippi, Chickasawhay and Tombigbee Rivers. Thus, class number one contained all lands lying within eight miles of the city of Natchez, the first quality of which was rated at $12 per acre; the second, at $8; and the third, at $3. Class number two contained all land lying within fourteen miles of the Mississippi River, with valuations according to quality ranging from $2 to $7. In short, valuations decreased in proportion as the distances from commercial centres and water courses increased; lands, lots and buildings within any city, borough or town were subject to a uniform ad valorem tax of 2 mills; and merchandise and bank stock, to an ad valorem tax of 2-1/2 mills. Capitation taxes of 50 and 62-1/2 cents respectively were levied on each slave and free white male above the age of twenty-one. Slave traders were taxed $5.00 on each slave imported into the Territory, a tax containing the germs of the privilege license system. The schedule was further strengthened by a tax of $1.25 on every pleasurable carriage.

It was provided that assessing and collecting officers were to be appointed by the Governor, rather than by the County Court, as heretofore--a change probably due to the differentiation between commonwealth and county taxation.

We may, for the lack of a better designation, call the period from 1817, the date of Mississippi's admission into the Union, to the outbreak of the Civil War, the period of ante-bellum Statehood. Such a division in fiscal history would seem to be perfectly artificial, yet it is justified by the fact that during this period the tax system of the State underwent substantial change. The increased expenses of State administration, an accumulation of State indebtedness, minuter differentiation in industry, giving rise to more numerous classes of wealth and progress in democratic thought--all demanded an extension of the State's fiscal system.

Personal property became as important an object of taxation as real property. The personal property list was no longer limited to slaves, pleasure carriages, moneys arising from the sale of merchandise, and bank stock, but also included gold and silver plate, pianos, weapons, watches or clocks, cattle in excess of twenty head, saddle and carriage horses, merchants' and brokers' capital and money loaned at interest.[68]

This taxation of personal property, usually rated, was supplemented by the privilege license system, with charges partly rated and partly apportioned. Thus, in 1857 auctioneers and peddlers were taxed 3 per cent. on the amount of their sales; saloon-keepers, one-fourth of one per cent. on all sales of vinous and spirituous liquors by the gallon; trading in slaves, horses and mules, 3 per cent. on the amount of their sales; keepers of ferries, toll bridges or turnpikes, one-fourth of one per cent. on all receipts; circuses $25 for each day's performance; nine-pin alleys or any like contrivance, $25 each; theatres or places for theatrical performances, $35 each. Even the poll tax was widened into its application so as to include free negro as well as free white males between the ages of twenty-one and fifty years.

Contemporaneously with this external expansion, the tax system of the State underwent internal changes. Land classifications were abolished, and annual income was rejected as a device of valuation.[69] A method was substituted which is in vogue today, viz: Assessment according to intrinsic value, to be determined by the owner or person in charge on oath, taking into consideration improvements, proximity to navigation, towns, cities, villages or roads, and any other circumstances that may tend to enhance value. The distinction between commonwealth and county taxes was preserved, but not in the same form as the older distinction between territorial and county taxes.

County police boards were now authorized to "order a certain [variable] rate per centum on the amount of the assessment of the State tax," and "to levy a special tax for the erection or repair of the court house, jail or other county buildings."[70] Under the territorial regime, it will be recollected, the county tax could never exceed half the territorial tax.

This period of ante-bellum Statehood was also marked by a radical change in the machinery of assessment and collection. During the territorial period assessing and collecting officers were appointed by the County Courts or by the Territorial Governor; during this period they were chosen directly by the people who were directly responsible for their conduct.[71] The county sheriff was _ex-officio_ the county collector, but the assessor was a separate officer with distinct functions. Both were biennially elected, and the compensation of each was fixed at 5% on the amount of the state tax assessed and collected. This per centum remuneration could not exceed a fixed sum; the assessor's maximum being fixed at $500 per annum and the collector's at $3000. The fiscal machinery thus set in motion during the period of ante-bellum Statehood is patterned on substantially the same model today.

Although this period witnessed the establishment of _some_ of the main features of the modern system of State and local taxation in Mississippi, it cannot be designated as transitional, in the sense Prof. Ely uses the term. There was no change from the taxation of specific kinds of property at varying rates to the taxation of the collective mass of property at one uniform rate. More specific kinds of property were taxed, but there was no disposition to bunch property under a common category at a uniform rate. The objects taxed were as specific and the rates as variable as ever. The period was marked by an extension of the tax system, not by its leveling-out.

War demands emergency revenue, and especially was this true of the Civil War. When Mississippi formally renounced her allegiance to the Union in 1861, the Constitutional Convention which passed the Ordinance of Secession supplemented this by an "Ordinance to Raise Means for the Defence of the State."[72] This ordinance provided for the collection from each taxpayer of an additional Special State tax of 50% on the regular State tax, and also a tax from every inhabitant of 3-10 per cent. upon all money owned or controlled by such inhabitant--the moneys so collected to constitute a Military Fund.

In 1863 it was further enacted that a special tax of 50 per cent. on the regular State tax should be levied, to be known as the Military Relief Tax, the proceeds to be used for the relief of the destitute families of Confederate soldiers.[73] In 1865, in order the better to provide for the families of the soldiers a direct tax in kind of 2 per cent, was levied on the gross amount of all corn, wheat and bacon, in excess of 100 bushels, 25 bushels and 100 pounds respectively; on the tolls from all grain mills in the State, on the gross profits of leather, whether manufactured for sale or received on shares as commission by tanneries; and on all woolen and cotton factories and fabrics manufactured for sale.[74]

For the benefit of the County Indigent Fund, the Boards of Police of the several counties were empowered to levy a tax in kind of 1/2 per cent. on all corn, wheat and bacon, grown and produced in the State.[75]

The exigencies of war and the depreciation of the Confederate treasury notes, in which taxes were paid, necessitated not only the levy of special taxes, but an increase in the number and rates of the specific objects taxed. Notable among the additions to the regular tax schedule were taxes of five cents a pound on all seed cotton over one bale of 500 pounds of lint, raised by a single hand; of 2 per cent. on the gross profits of iron foundries, machine shops, dealers and speculators[76] in grain, provisions, etc.; of 50 per cent. on the wages of mechanics in excess of 75 per cent. profit above the actual cost of labor and material; of twenty cents on every hundred dollars of railroad stock which paid 3 per cent. per annum. Heretofore the State had encouraged railroad enterprise by exemption from taxation and before the war had even gone so far as to levy special railroad taxes in the several counties in payment of stock subscriptions to these enterprises. But financial expediency dictated that premiums for industrial progress be withdraw and that all the State's fiscal energy be conserved for the business of war. Emergency taxation was supplemented as a fiscal device by depreciated cotton money, Confederate currency and Mississippi Treasury notes, and this extreme economic tension was only relaxed after the last troops of the Confederacy had surrendered.

Upon the downfall of the Confederacy in 1865, the Constitutional Convention assembled by Gov. Sharkey organized Mississippi as a regular State government. The financial problem confronting this Post-Confederate government was as hard a Gordian knot to cut as that which confronted the Confederacy itself. Land was worthless as an object of taxation, because it had no value. Industries were paralyzed, and needed bonuses rather than increased burdens. The debt contracted during the war was not repudiated, and there was a State government to support. How was the difficulty to be solved?

The Constitutional Convention of 1865 and the State legislatures of 1865, 1866 and 1867 acted in a sensible and heroic way in dealing with the situation. A direct tax of $1 per bale was levied on all cotton brought to market and sold; an inheritance tax of 1 per cent. of the gross amount of all collateral inheritances; a tax of 3-10 per cent. upon the amount of the annual rents and tenements. Privilege licenses were exacted from the larger corporations best able to bear them, a notable instance of this being the license of $2000 per annum imposed upon express companies.[77] This selection of taxable objects proved most fortunate, the cotton tax alone yielding sufficient revenue to support the whole state administration. The commonwealth's indebtedness was scaled, and Mississippi was rising Phoenix-like from the ashes of financial despondency.

But in 1867 there was fastened upon the State the reign of "Reconstruction and Radicalism," which meant untold retrogression in fiscal policy. This reign of mongrelism, ignorance and depravity was formally ushered in by a motley assemblage known as "the black and tan convention," so called from the negroes and carpet-baggers composing it. The special taxes levied to cover the profligacy and extravagance of this convention, whose expenses for a period of less than five months aggregated nearly a quarter of a million of dollars, were prophetic of the future. Cotton, cotton gins, grist and saw mills, ferry and wharf boats, grocery, drug and provision stores, banks, hotels, photograph galleries, railroad and steamboat companies--all were impaled on reconstruction's fork. Even the freedom of the press was not respected, sums ranging from $20 to $50 being levied on each daily, tri-weekly and weekly newspaper published in the State. The plunderers modestly concluded their infamous schedule with the provision "that a special tax of 50 per cent. on the State tax be levied in addition to the State tax now assessed upon real and personal property."[78]

The Constitution framed by the "black and tan convention" was rejected and the Conservative administrations of Governors Alcorn and Powers, both property owners and taxpayers in the State, had the effect of tempering fiscal excesses. However, this temperance was only temporary and, as compared with the former period, might be called rank intoxication. In 1869 the State levy was only 1 mill on the dollar; in 1870, 5 mills; in 1871, 4 mills; in 1872, 8-1/2 mills; and in 1873, 12-1/2 mills. This was only the State tax. In many counties a county tax of 100 per cent. on the State tax was added, besides a Special tax in some counties to pay the interest on their bonded debt, and a Special tax in the incorporated towns of from 5 to 10 mills on the dollar for town purposes. In this way it happened that the total tax paid by citizens was 2 8-10 per cent. outside the cities, and from 3-1/2 per cent. to 4 per cent. in cities and towns.[79]

With the election and inauguration of Adelbert Ames as Governor in 1874, the spirit of plunder and revenge which animated the aliens and negroes burst forth with a fresh fury. The tax on land was increased to 14 mills, a rate which virtually amounted to confiscation. Cotton was taxed $10 per bale and the proceeds were invested in the Freedman's Savings Bank, a gigantic swindling agency at Washington. The poll was increased from $2 to $6 a head, and the responsibility for the payment of the negroes poll was saddled on his white employer. This farce fiscal comedy reached its climax in the imposition of a 1 per cent. tax on all amounts expended by the citizens of the State in travel.[80] The people simply could not pay these taxes, and over 6,400,000 acres of land were forfeited for nonpayment.

On January 4, 1875, the taxpayers driven to desperation by this confiscation of their property met in convention and submitted to the Legislature a most respectful appeal for relief. The Legislature treated the petition with contempt, an action which resulted in the organization of taxpayers' leagues over the State and the speedy overthrow of carpet-bag government.

This struggle between taxpayers and tax-layers in Mississippi is but another illustration of the truth of Edmund Burke's saying that "from the earliest times the great battles for human freedom have been fought out on the question of taxation."

But the price of the victory was dear and the penalty paid for experience was great. In addition to a payable and interest-bearing debt of $984,200, the carpet-baggers left outstanding, unpaid on January 1, 1876, non-interest bearing Auditor's warrants amounting to $414,958.31. During the last six years of their regime, as is shown by the Auditor's and Treasurer's books for these years, they spent $8,501,337.86, strictly on account of the expenses of State government, an average of $1,484,699.55 per annum. They collected nearly a million dollars of what is known as the Common School fund, and spent it all in riotous governmental living, save the pittance of $57,000 in U. S. bonds left in the treasury to the credit of that fund.

This money was not spent on the common schools, the purpose for which it was collected, but was misappropriated and unaccounted for, and a debt against the State on account of that fund, was left January 1, 1876, amounting to $830,378.18. This, too, in spite of the fact that the average rates of State and county taxation during the six years in question were 8.87-1/2 mills and 12.49-2/3. mills respectively, making a combined average of $21.37-1/2 on the thousand.

Indebtedness was thus the legacy which the "Modern Period" [1876-1898] in Mississippi's fiscal history received from the period of "Reconstruction and Radicalism." Although burdened with this incubus and with increasing expenditures for educational and eleemosynary institutions, the "Modern Period" has been characterized by a decrease in both State and County tax rates and by a proportionate reduction in State indebtedness, both in amount and interest charge.

The first year of this period, i. e. 1876, gave earnest or fiscal reform. State taxes were reduced from 9-1/2 mills on the dollar to 2-1/2 mills. The taxing power of county boards of Supervisors was restricted, a law being passed which prohibited them from levying taxes for county purposes, which added to the State tax, would exceed 16-1/2 mills on the dollar, except for indispensable purposes. Supernumerary officials were dismissed, the common school system improved, sinecures abolished and salaries reduced. The highest rate of compensation was no longer paid for the lowest standard of qualification. This policy of economy in State administration has yielded substantial results.

The average rate of State taxation for the past 22 years, inclusive of 1876, has been 4.66 mills, as opposed to an average of 8.87-1/2 mills for the six years preceding 1876. The average rate of county taxation for the same period has been 11.1 mills, as opposed to 12.49-1/2 for the six years preceding. Combining averages, we find a saving to the credit of home rule of 5.60-1/2 mills on the dollar, or 5.60-1/2 on the thousand.

Reduction in tax rates has meant a reversal of the policy of confiscation. Of the 6,400,000 acres of land forfeited for nonpayment during Reconstruction rule, all save 250,000 acres have been redeemed. Property valuation has largely increased, the value of real and personal property in the State today being estimated at $156,432,328.

Conservative capital is seeking investment in all branches of industrial enterprise and economic progress is following in the wake of fiscal reform.

Although the total payable debt of the State has increased from $830,750 in amount and $45,507.50 in interest charges in 1876 to $1,105,780.41 in amount and $53,421 in interest charges in 1897, this increase is seen to be a proportionate decrease when all the facts are considered.

The obligations, amounting to $876,256.57 in principal and interest, handed down from reconstruction times have all been paid. During the past 22 years $6,755,706.57 has been appropriated and actually paid to common schools, as opposed to $1,323,765.62 appropriated and $327,742.25 paid during the six years preceding 1876.

During the "Modern Period" the State University at Oxford, the Alcorn University, the Normal Schools at Holly Springs and Tugaloo have been liberally supported. The A. & M. College has been established, built, equipped and supported at an aggregate expense of $697,909.95. The Industrial Institute and College has been built and supported at a cost of $329,735.99.

Higher education has been liberally supported, eleemosynary institutions established and equipped, and the Confederate pension fund largely increased.

Yet these extraordinary expenditures have only meant an addition of $282,943.91 in principal and interest to the State's payable indebtedness. This fact alone gives character to the administration of the State's finances, and bodes well for a wise use of the commonwealth's taxing power in the future.

FOOTNOTES:

[65] Lowrey and McCardle: Hist. Miss., p. 71.

[66] Miss. Laws, 1799, pp. 121-133.

[67] For provisions, Cf. Digest of the statutes of M. T., 1816, pp. 415-424.

[68] Revised Code of Miss., 1857, pp. 72-73.

[69] Hutchinson's Code of Miss., (1798-1848) pp. 188 and 202.

[70] Miss. Rev. Code, 1875; pp. 417-18.

[71] Miss. Rev. Code., 1857, pp. 70-72.

[72] For provisions, Cf. Proceedings of Constitutional Convention, 1861, pp. 12-15.

[73] Miss. Laws, 1862-63, p. 70.

[74] Indigent beneficiaries were divided into three classes, viz: (1) Those entirely dependent. (2) Those deficient in breadstuffs. (3) Those deficient in bacon. No beneficiary could receive more than 6 bushels of corn, 1 bushel of wheat, and 50 pounds of bacon during the year.

[75] Miss. Laws, Feb'y and March, 1865, pp. 3-10.

[76] Miss. Laws, 1862-63, pp. 153-155.

[77] Miss. Laws, 1866-67, pp. 412-414.

[78] Miss. Constitutional Convention, 1868, pp. 215-220. This Convention dropped that provision, found in the Constitution of 1832, restricting the origination of money bills to the lower house. The Constitution of 1890 expressly declares that all bills may originate in either house and be amended and rejected in the other.

[79] Lowry and McCardle: Hist. Miss., p. 230, Cf. also Barksdale: Reconstruction in Mississippi, p. 339 (In Noted Men of the Solid South.)

[80] Miss. Laws, 1875, p. 46.

TERRITORIAL GROWTH OF MISSISSIPPI

J.M. WHITE, M. S.

In 1783 the independence of the Thirteen Colonies in America was recognized. Fifteen years later on April 7, 1798, Congress passed an act a part of which was as follows: "All that country bounded on the west by the Mississippi river; on the north by a line to be drawn due east from the mouth of the Yazoo river to the Chattahoochee river; on the east by the river Chattahoochee; and on the south by the thirty-first degree of north latitude, shall be, and hereby is constituted one district, to be called the Mississippi Territory." More than half of this territory is now embraced in the state of Alabama, and the portion that remains to Mississippi constitutes something like one-third of the area of the state. Very little of the boundary of the original territory remains intact, and in so far as Mississippi is concerned all that remains of this original boundary is that around its south west corner, extending from Pearl river along the thirty-first degree of north latitude to the Mississippi river and up that stream to the mouth of the Yazoo river.

The lands that have been added to the original territory lie to the north and to the south of it--that added on the north comprises the South Carolina and Georgia cessions, and that on the south a portion of the Louisiana Purchase, or Spanish cession.

Before going farther into this subject it is necessary that we examine briefly some of the old grants made by Great Britain for the purpose of stimulating the formation of Colonies in the New World. By such an examination we hope to get a clearer idea of the subject, and how it is that some of the boundaries of our state are where they are. The first of these grants to embrace the territory now in Mississippi was that made by Charles I. to his Attorney General, Sir Robert Heath, in 1629. This grant known as Carolina was possibly the largest ever made to any one individual, covering as it did almost all that part of the United States south of the present southern boundary of Virginia and of Missouri. Mississippi was completely swallowed up in this princely domain. Thirty years later (1659) soon after the death of Oliver Cromwell and about the time of the restoration of the Stuart kings to power in England, this charter for non-user was voided, and in 1663 Charles II. gave to eight of his royal favorites, the Lords Proprietors, a charter to Carolina, and by a supplemental charter two years later (June 30, 1665) granted on the petition of the Lords Proprietors, he extended the territory of Carolina so that its northern boundary was 36 degrees thirty minutes north latitude and its southern 29 degrees north latitude.[81] All of Mississippi was in like manner embraced in this grant. This charter was surrendered to the King by seven of the proprietors, act of Parliament July 25, 1729.[82] It had been one hundred years since the grant to Robert Heath. (The eighth proprietor gave up his claim Sept. 17, 1744.) It was at this time that Carolina was divided, South Carolina having remained a part of it until this date. The western portion of the line separating the Carolinas, now forms the northern boundary of Mississippi.[83]

Three years later June 9, 1732, George II., King of Great Britain, granted a charter for the establishment of the Colony of Georgia in America. The lands embraced by the provisions of this charter lay within the royal province of South Carolina, between the Savannah and the Altamaha rivers and the zone lying between parallels passing through the head waters of these streams and extending to the Pacific Ocean.[84]

Now the line passing through the head waters of the Savannah left a zone twelve or fourteen miles wide belonging to South Carolina, and lying between said line and the southern boundary of North Carolina. This strip east of the Mississippi embraced 4900 square miles and was generously ceded by South Carolina to the United States in 1787, and today forms the northern part of Georgia, Alabama, and Mississippi. South Carolina's right to this zone was not questioned nor was Georgia's right to her western zone lying between the parallels passing through the head waters of the Savannah and Altamaha rivers. This zone became, as did the South Carolina zone, a part of the Mississippi Territory, and together they constituted the lands added to the original Mississippi territory on the north as above indicated. But as to the original territory, viz., the zone lying between the thirty-first and the thirty-second and one-half degrees of north latitude, a number of disputes at different times arose. South Carolina claimed it, Georgia claimed it, Spain claimed it, and the United States claimed it. The contentions that arose in consequence of these conflicting claims were protracted over a quarter of a century.

In 1752 the Georgia charter was surrendered, and by virtue of the French and Indian war which soon followed, and the treaty of Paris 1763, Great Britian made good her claim, over France, to all lands east of the Mississippi river and began at once to occupy this territory, which prior to 1732 had been a "sort of free zone of doubtful ownership." The King of Great Britain issued a proclamation, Oct. 7, 1763, creating the provinces of East Florida and West Florida and by the same proclamation the Georgia territory according to the charter of 1732 was extended so as to take in the lands lying between the rivers Altamaha and St. Mary's. This proclamation also settled temporarily a dispute which had arisen between the provinces of South Carolina and Georgia as to the right to the said territory. The provision is as follows: "We have also, with the advice of our Privy Council aforesaid, annexed to our province of Georgia, all lands lying between the rivers Altamaha and St. Mary's." Thirteen years later the Colonies declared their independence, and, as was natural, each claimed jurisdiction over areas previously determined by royal charters, proclamations, &c. At this time Georgia's claims were bounded on the east by the Atlantic Ocean and the Savannah river; on the north by a line passing through the head waters of said river to the Mississippi; on the west by the Mississippi river; and its southern boundary was one with that of the United States. Her title to all of this territory was the charter of 1732, King George III's proclamation of Oct. 7, 1763, extending the area as provided by said charter, and a commission[85] to Governor Wright Jan. 20, 1764, which gave him jurisdiction as far west as the Mississippi and as far south as the thirty-first degree of north latitude.[86]

Acting upon these claims, in 1785 the legislature of Georgia established the County of Bourbon in the extreme southwestern limit of her claim, and 1788 authorized the sale of large bodies of land lying between the Tombigbee and the Mississippi rivers to certain companies known as Virginia Yazoo, South Carolina Yazoo, and the Tennessee Yazoo. These sales were made; but when the State Treasurer refused to accept Georgia bills of credit in payment, the Virginia company withdrew the moneys that she had previously paid and the South Carolina Company brought suit against Georgia in the supreme court of the United States; but the ratification of the eleventh amendment to the Federal Constitution, privileging a state from being sued, cut short the suit.[87]

In 1795 another act was passed authorizing the sale of these lands, but on investigation it was found that many members of the Legislature--in fact all the members voting for the sale except one--were interested in these sales in a pecuniary way and a third Legislature, 1796, declared the act of the previous legislature null and void, because obtained by fraud and corruption, and the records of all the sales and conveyances made under it were blotted out and destroyed.

This, however, did not vitiate the titles of these companies to said lands.[88] The supreme court of the United States decided that the act of the Georgia legislature in repealing the prior act for the sale of the land was unconstitutional and void, was in violation of a contract, and that the titles of claimants were good and valid.[89]

In the midst of all this confusion the United States planted the Mississippi territory with boundaries as given above, justifying her right to do so in her belief that these lands did not belong to Georgia or to any other state at the time of the signing of the peace treaty in 1783, but to the United States in common as the result of their combined effort in establishing independence. In deference, however, to Georgia's claims, Congress in authorizing the establishment of a government in the Mississippi territory provided, "That the establishment of this government shall in no respect impair the right of the state of Georgia, or of any person or persons, either to the jurisdiction or the soil of the said territory; but the rights and claims of the said state, and all persons interested, are hereby declared to be as firm and available as if this act had never been made."

Section I. of this act is as follows: "That the President of the United States be, and he hereby is, authorized to appoint three commissioners, any two of whom shall have power to adjust and determine, with such commissioners as may be appointed under the legislative authority of the state of Georgia, all interfering claims of the United States and that state, to territory situated west of the river Chattahoochee, north of the thirty-first degree of north latitude, and south of the cession made to the United States by South Carolina; and also to receive any proposals for the relinquishment or cession of the whole or any part of the other territory claimed by the state of Georgia, and out of the ordinary jurisdiction thereof."[90]

To all this Georgia protested vigorously and asserted her right to the land in question. Commissioners were, however appointed as provided. They were not long in reaching an agreement, which led to the cession of these lands to the United States. The terms were about as follows: The United States gave Georgia in exchange for these lands, a strip about twelve miles wide now forming the northern part of Georgia; agreed to extinguish the Indian titles within her limits; to admit the ceded territory into the Union as a state, when the population should number sixty thousand souls; to confirm all grants recognized by Georgia as legal; to set apart five million acres to satisfy claims such as those of the Yazoo companies and other companies which Georgia did not consider legal; and to pay a million and a quarter dollars to the state of Georgia from the proceeds of lands sold in the said district.[91] All this having been agreed to by Congress, the cession was formally made in 1802 and two years later, together with the South Carolina Cession lying just to its north, became the Mississippi territory. But the contest did not end until Congress voted eight million dollars in 1814 in land script to satisfy all claimants.[92]

The territory had not, however, reached its full growth, for there was yet to be added the strip south of thirty-first degree of north latitude and lying between the Perdido and the Pearl rivers. The title to this land, and in fact all British West Florida, was a subject of dispute between the United States and Spain. This dispute had its origin in the indefiniteness of boundaries as provided by the treaties given by Great Britain to said powers on Sept. 3, 1783. The United States claimed the thirty-first degree of north latitude as her southern boundary, while Spain claimed as far north as thirty-two degrees and thirty minutes north latitude as her northern boundary. The land here in dispute, it will be observed, was that of the original Mississippi territory. To these lands Spain waived claim by treaty, Oct. 27, 1795.[93]

On April 30, 1803, France sold to the United States Louisiana. This purchase brought in question the title of the remainder of British West Florida, i. e., that portion lying south of the thirty-first. This question had its origin in the indefiniteness of the boundary of Louisiana, and although the matter was not definitely settled until 1819, when Florida was purchased of Spain, the United States disregarded Spain's claim, and on April 14, 1812 added that portion west of Pearl river to Louisiana, and on May 14, 1812 the remainder was incorporated with the Mississippi territory.[94]

With this act the Mississippi territory reached its full growth. It embraced all the territory which now makes up the states of Mississippi and Alabama. It had been just fourteen years, one month and seven days since the original territory was organized. It is estimated that 33,956 square miles were included in that territory. To the north of it 54,622 square miles had been added, and to the south 10,482 square miles, (of which 4,482 square miles is water.)[95] In all the Mississippi territory embraced 99,060 square miles. Clause four of the act organizing the territory is as follows: "The territory hereby constituted one district, for the purpose of government, may, at the discretion of Congress, be hereafter divided into two districts, with separate territorial governments in each, similar to that established by the act. Congress exercised the right herein reserved, and on Dec. 10, 1817 the western portion of that territory embracing 46,810 square miles became the State of Mississippi, and the proud commonwealth joined the sisterhood of States."

FOOTNOTES:

[81] Public Domain, p. 51. (Extract charter, June 30, 1665.) "Know ye, that at the humble request of the said grantees, etc., we are graciously pleased to enlarge our said grant unto them according to the bounds and limits hereafter specified, * * * all that province * * * within our dominions in America aforesaid, extending north and eastward as far as the north end of Currituck river or inlet, upon a straight westerly line, to Wyonoak creek, which lies within or about the degrees of thirty-six and thirty minutes northern latitude, and so west in a direct line as far as the south seas; and south and westward as far as the degrees 29, inclusive of northern latitude &c., &c."

[82] The Public Domain p. 52.

[83] Poore's Charters and Constitutions Vol. II. p. 1410.

[84] Extract from charter, June 9, 1732: "Know ye, therefore, that we, greatly desiring the happy success of the said corporation, for their further encouragement in accomplishing so excellent a work, have of our special grace, certain knowledge, and mere motion, given and granted, and by these presents, for us, our heirs, and successors, do give and grant to the said Corporation, and their successors, under the reservations, limitations, and declarations, hereafter expressed, seven undivided parts (the whole into eight equal parts to be divided) of all those lands, countries, and territories, situate, lying, and being, in that part of South Carolina in America, which lies from the northern stream of a river commonly called the Savannah, all along the sea coast to the Southward, unto the most southern stream of a certain other great river called the Altamaha, and westward from the heads of the said rivers respectively, in direct lines to the South Seas."

[85] McMaster.

[86] Public Domain.

[87] McMaster Vol. III.

[88] McMaster Vol. III.

[89] Public Domain p. 84.

[90] Section 5 of the act. Poore's Charters & Constitutions Vol. II.

[91] McMaster Vol. III.

[92] McMaster Vol. III.

[93] Art. 2: "To prevent all disputes on the subject of boundaries which separate the territories of the two high contracting parties, it is hereby declared and agreed as follows, to wit: The southern boundary of the United States, which divides this territory from the Spanish Colonies of East and West Florida, shall be designated by a line beginning on the river Mississippi, at the northernmost part of the thirty-first degree of latitude north of the equator which from thence shall be drawn due east to the middle of the river Apalachicola or Chattahoochee," etc.

[94] The Public Domain.

[95] Public Land Commissioner Parts 1 & 4 pp. 88 and 105.

THE EARLY SLAVE LAWS OF MISSISSIPPI.

BEING SOME BRIEF OBSERVATIONS THEREON, IN A PAPER READ BEFORE THE MISSISSIPPI HISTORICAL SOCIETY, AT A MEETING HELD IN THE CITY OF NATCHEZ, APRIL 20-21, 1899.

BY ALFRED H. STONE, ESQ.

Probably no institution with which history deals has been the centre of more momentous events, or the subject of more earnest and acrimonious discussion than that of human slavery. To the study of whatever of the states of civilization we may devote ourselves, we find that, regardless of its present position of advancement, at some period of its history the personal ownership of human beings was a recognized feature of its social fabric. Nor is it true that the existence of this institution at any certain period of a people's history can be taken as an evidence of a low state of intellectual, moral or social development during such period. Quite the contrary was often the case,--despite the fact that we have heard so much of "the demoralizing and degrading effects of slavery" and are told that it was ever a curse upon any people who tolerated it,--for both biblical and secular history are replete with testimony to the magnificent achievements of nations whose most glorious epochs were those during which slavery flourished.

It is foreign, however, to our purpose to engage in a discussion of slavery as a civil institution, or to question whether its toleration was of good or evil effect, or yet to inquire whether it could ever have justifiably existed. We propose to look at but one of its many features,--and that merely from the standpoint of an investigator of what has already passed into the realm of ancient history,--become something "flat, stale and unprofitable" to all save the curiously inclined.

The bitter and often unreasoning hatred, on the part of many, of the institution and those who upheld it in this country, and the repugnance with which it came to be generally regarded by even sincere and generously inclined people in a section in which it was non-existent, were unquestionably largely induced by the constant contemplation from a distance of an institution the softer aspects of which could not be understood by strangers to its inner life,--but of which the one dominant feature was the bare fact of the bodily ownership of human beings,--the mere existence of the legal right to barter, sell and trade in human-kind. Of the relations between the master and his human chattels, and of the laws governing those relations, except in rare instances, they seemed to be ignorant,--as well, apparently, as of the safeguards with which a humane public sentiment surrounded the treatment of the slave, both by the law and the master.

It is a brief consideration of some of these laws, as they stood upon the statute books of our own state during the earlier years of its history, that we beg to invite your attention.

Under an old Federal ordinance, passed in 1787, for the government of the Northwest Territory, it was provided that in that territory there should be "neither slavery nor involuntary servitude," except of course for the punishment of crime. As the Congressional act of 1798, forming the Mississippi Territory, subjected it to the provisions of this ordinance, we note the somewhat curious fact that in Mississippi, in its incipient territorial organization, slavery was a prohibited institution. However, in the act of 1802, which for the first time provided for the establishment of a government in the Mississippi Territory, this provision alone of that ordinance was excepted, and slavery recognized as legal.

The first provision concerning slavery which we find in our books, after Mississippi became a state, is contained in a clause in our first constitution, adopted in the town of Washington, August 15th, 1817, which provided that the Legislature might establish in each county a Court of Probate, for the discharge of various enumerated functions "and for the trial of slaves." This very first provision touching them seems to look to establishing proper legal means for their control, and in itself bears testimony to the falsity of the notion, which at that time some pretended to entertain, that the whim of the master was the sole law for the governing of the slave, and that the latter had no legal status whatever.

A little further along in the same instrument we find the Legislature delegated with authority to pass laws prohibitive of the introduction into the State of slaves "as merchandise." This apparently evidences the existence, even at that early date, of a spirit of opposition to the business of "slave trading" as a common vocation which easily accounts for the feeling with which the "nigger trader" was regarded by the better classes--those among whom he would look for purchasers of his goods. In this same clause the Legislature is empowered to pass laws to oblige the owner of slaves "to treat them with humanity," to provide for them necessary clothing and provisions, to abstain from all injuries to them extending to "life or limb," and, in case of the failure to comply with the directions of such laws, the slave might be sold to some more humane master. By this instrument it was also expressly provided that the Legislature should never have the power to deprive the slave of the right to an impartial trial by a jury.

I think it proper that we should call to mind these provisions of our first organic law--testifying as they do to the treatment which law and society exacted of the master toward his slave;--but, while we can not fail to be impressed with the spirit of justice and humanity manifested in our early constitution, at a casual reading, some of the succeeding legislative enactments might be regarded as extremely harsh.

But in considering laws of this nature, abhorrent as they may be to our present sense of humane propriety, we must not lose sight of the time in which they were effective, and our judgment must be tempered by a remembrance of the fact that they were operative in a state of society which, while no less refined or lower in its moral tone than our own, yet looked upon criminal laws from a view point radically different from that of today.

The debtor's prison still existed in England,--the stocks and pillory were instruments of common use both here and there,--the public whipping post claimed its daily victims,--the rack and thumb-screw were still applied to refractory witnesses in some of the courts of the old world and there was not yet in all Christendom a country in which women had equal property rights with men,--which, by the way, Mississippi was the first community in the civilized world to confer, and she had not progressed thus far by some twenty odd years.

For all of the many petty offenses of which the slave might be guilty the punishment was confined to "stripes,"--few or many in the discretion of the justice of the peace, though for every offense the maximum number was fixed by law. Nor could they be applied but by authority of the magistrate, after due examination, though there was almost invariably coupled with the designating of the number of stripes the injunction that they be "well laid on." The mode of procedure in all cases wherein the offense was punishable with stripes was for the justice to summon "two respectable slave-holders to assist him,"--the evidence for and against the accused being laid before them, the three determined his guilt and fixed the punishment,--within the limits of the law.

The extent of this punishment varied all the way from ten stripes for "presuming to come upon the plantation of any person without leave from his master," up to thirty-nine for grand and petty larceny, between the punishment for which there was no difference, and for "buying or selling without a written permission from his master." This latter seems to have been regarded as quite an offense, as we have frequent references to it,--the punishment fixed being as great as that attached to misdemeanors which we would consider much graver. It merely consisted in the slave buying or selling anything whatever without his master's written permission,--such permission being necessary before he could lawfully carry on even the smallest of commercial exchanges.

Even in our present state of boasted enlightenment it is questioned by many thinkers and criminologists whether we have been wise in anywhere substituting the jail for the whipping post for minor offenses. At all events, as a deterrent to petty crime among our colored brethren one sound thrashing, "well laid on," would most likely prove more efficacious than any jail sentence imposed by a latter day justice of the peace.

It was unlawful for a slave to leave his master's premises without permission, and an offense for a negro, bond or free, to have in his possession any weapons of any kind. The penalty for engaging in any "riots, routs or unlawful assemblages" was the maximum thirty-nine lashes, and the same act provided that if any white person should be convicted in the Circuit Court of "being in company with slaves or free negroes at any unlawful meeting" he should be fined twenty dollars, to go to the informer, and, moreover, receive not exceeding twenty lashes on his bare back, at the discretion of the court.

It was in defining such unlawful meetings or assemblages to include "all assemblies of slaves, or free negroes or mulattoes, mixing and associating with such slaves, above the number of five, at any place of public resort, or at a meeting house, in the night, or at any school, for teaching them reading or writing, either in the day or night, under whatsoever pretext" that our slave holding law makers sinned so grievously in the eyes of the abolitionist. While it may be observed that this particular act contained nothing to legally prevent a master from teaching his slave to read and write, yet the policy of the law at that time is of course well known to us all to have been opposed to any such education.

I shall not engage in any discussion of the question of negro education nor seek to air my personal views in regard to it, but merely venture the statement that the experience of a third of a century, involving the expenditure of millions of dollars by the white race upon it,--the moral, social and intellectual condition of the negro today calmly and fairly considered,--have not demonstrated the unwisdom of the slave holders position of seventy-six years ago, nor yet proven an adherence to opposite views to be for the best interests of either race.

In this connection it was provided that nothing contained in any of these enactments should be so construed as to prevent a master from allowing his slave to go to places of religious worship, sagely demanding, however, "that such worship be conducted by a regularly ordained or licensed white minister, or attended by at least two discreet and reputable white persons, appointed by some regular church or religious society,"--it not being lawful for a negro to exercise any of the functions of a minister of the Gospel,--though a master might allow his slave to preach to his own slaves, but to none others.

It was unlawful for a white man to do any trading whatsoever with a slave on the Sabbath, without the consent of the master in writing first being had by the slave, and with a free negro it was unlawful on that day under any circumstances,--our early fathers seemingly being at all times possessed of a very high regard for the general efficacy and saving grace of a written permission from the master.

The right of a slave to act in defense of himself when assaulted by a white person was at all times recognized by the law, and while it was an offense punishable by thirty-nine lashes for a slave to "use abusive or provoking language to, or to lift his hand in opposition to a white person" yet no punishment was to be inflicted where it appeared to the justice that he was acting in self defense.

It was not lawful for a slave to possess horses, mules, sheep, cattle, hogs or dogs, nor could he cultivate any cotton for his own use,--the only penalty attached, however, being the forfeiture of the property,--except as to dogs, for the keeping of which he might be punished with not exceeding twenty-five stripes. Cruel or unusual punishment, for various plantation or household offenses, could not be inflicted on a slave by his master,--under penalty of a fine of five hundred dollars for each offense, the fine to go to the state treasury, for the benefit of the "literary fund."

The various misdemeanors enumerated here constituted the bulk of crimes of which it was thought probable the slave would be guilty,--there being but few others contemplated in our early criminal legislation.

For such others, however, much greater penalties were provided.