Chapter VIII: The Execution of the Reconstruction Acts

The Attempt to Prevent the Execution of the Reconstruction Acts in Mississippi and Georgia--The Case of Mississippi vs. Johnson--The Case of Georgia vs. Stanton--The Operations of the Commanders--The Registration--The Numbers Registered--The Change in the Electorate in the South--The Elections--Efforts of the Commanders to Get the Vote Out--The Result of the Elections--The Character of the Convention Delegates Chosen--The Work of the Conventions--The Vote upon Ratification--Fraudulent Voting and Unlawful Voting--The Recall of Pope and the Appointment of Meade in His Stead--Rejection of the Constitution in Alabama--The Statute of Congress Changing the Proportion of Votes to Registration in the Ratification of a Constitution--Criticism of the Statute--Ratification in Arkansas--Ratification in North Carolina, South Carolina, Georgia, Florida and Louisiana--Second Attempt in Georgia to Obstruct Reconstruction--Rejection of the Constitution in Mississippi.

[Sidenote: The attempt to prevent the execution of the Reconstruction Acts in Mississippi and Georgia.]

[Sidenote: The case of Mississippi vs. Johnson.]

Although the Supreme Court of the United States had said, in the case of Kendall vs. the United States, in 1838, that so far as the President's power is derived from the Constitution he is beyond the reach of any other department, except in the mode prescribed by the Constitution, through the impeaching power, and had also indicated, in the cases of the Cherokee Nation vs. the State of Georgia, in 1831, and Luther vs. Borden, in 1849, that it had no jurisdiction over political questions, there still prevailed in many minds the idea that the Court was the ultimate {145} interpreter of the Constitution in all cases of whatever nature, and that no person was exempted from its jurisdiction on account of official station. Under the influence of this idea, W. L. Sharkey, the ex-provisional Governor of Mississippi, appointed by President Johnson in 1865, undertook to obtain from the Supreme Court of the United States an injunction restraining the President of the United States from carrying the Reconstruction Acts of March, 1867, into effect. He was aided in this attempt by the Hon. Robert J. Walker, and their client in the case, as set up by them, was the "State of Mississippi." In a powerful argument, noted for both clearness and frankness, Mr. Johnson's Attorney-General, Mr. Stanbery, demonstrated that the President of the United States cannot be made subject to the jurisdiction of any court, while in office, except only the Senate of the United States, as the constitutional court of impeachment. The plea of Mr. Stanbery is also notable for another thing, viz.: the frank way in which he notified the Southerners that the President's opposition to these laws ceased with their successful passage over his vetoes, and that the President intended to execute them in spirit and letter, as it was his sworn duty to do. The Court decided, in 1866, in the case of Mississippi vs. Johnson, that "a bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State."

[Sidenote: The case of Georgia vs. Stanton.]

Under the delusion that this decision was based entirely upon the official exemption from jurisdiction of the person sought to be made defendant, Hon. Charles J. Jenkins, Governor of Georgia, under the reconstructed constitution of 1865, undertook, as representing the "State of Georgia," to obtain an injunction against {146} Stanton as Secretary of War, Grant as General of the army and Pope as commander of the third military district, restraining them from putting the Reconstruction Acts of March, 1867, into operation. Mr. Stanbery again came forward, in the case of the State of Georgia vs. Stanton, with a most able argument against the jurisdiction of the Court over the question involved, it being, as he contended, a political question pure and simple, and the Court again sustained him, deciding that it possessed no jurisdiction over the subject-matter presented in the bill for relief.

[Sidenote: The operations of the commanders.]

[Sidenote: The registration.]

The generals now had free hand to go ahead according, pretty much, to their own discretion. The law gave them, first until September, and then until October, to complete the registration, and they themselves appointed and extended the times of registration at will. They constituted the boards of registry chiefly of army officers, Freedmen's Bureau officers, discharged Union soldiers, and negroes. Where white residents could be found who could take the iron-clad oath, the oath prescribed by Congress July 2d, 1862, they were also used in constituting these boards. The registration was quite successful in bringing out most of those qualified to register. The reason for this was not ready acquiescence on the part of the whites in the Reconstruction Acts, but it was the calculation that by registering and not voting on the question of holding a convention, or on the question of constitutional ratification, one or both of these propositions might be defeated, since the act of March 23d provided, as we have seen, that a majority of the registered voters must vote in order to carry them in the affirmative.

[Sidenote: The numbers registered.]

In Alabama the registration reached the number of 165,813, of whom 104,518 were negroes or colored. In {147} Arkansas it reached the number of 66,831, of whom less than half were known to be colored, although no exact account of the proportion was reported. In Florida it reached the number of 28,003, of whom 16,089 were colored. In Georgia it reached the number of 191,501, of whom 95,168 were colored. In Louisiana it reached the number of 129,654, of whom 84,436 were colored. In Mississippi it reached the number of 139,690, of whom, it was well known, a large majority were colored, although no exact figures giving the proportions were reported. In North Carolina it reached the number of 179,653, of whom 72,932 were colored. In South Carolina it reached the number of 127,432, of whom 80,550 were colored. In Texas it reached the number of 109,130, of whom 49,497 were colored. In Virginia it reached the number of 225,933, of whom 105,832 were colored.

[Sidenote: The change in the electorate in the South.]

It will thus be seen that of the ten "States" to be reconstructed five were to be recreated through an electorate in which the majority would be negroes and mulattoes, about all of whom had been, three years before, slaves; while in the other five the majority of the constructing electorate would be whites by a comparatively small number. This was a tremendous _bouleversement_ of the political society of these sections. A large majority of the old leaders were disfranchised completely and a goodly number of the old Unionists were deterred by social considerations from taking any part in the work, while negroes, "poor white trash," "carpet-baggers" and a few self-denying respectables formed the new electorate for recreating "State" governments.

There is no doubt that Congress had the constitutional power to do this thing, on the theory, of course, that these communities were not "States" of the Union; {148} but it was a reckless thing, and a monstrous thing. Anybody of common sense and common honesty could, at the time, have foreseen some of the horrible results which were sure to follow.

[Sidenote: The elections.]

[Sidenote: Efforts of the commanders to get the vote out.]

So soon as the registration was completed, the commanders ordered elections to be held and the vote to be taken, first, upon the question of convention or no convention, and, at the same time, for the choice of delegates to the conventions. The commanders did their best to get out the vote. They met every device for keeping the negroes away from the polls and foiled it by means of their arbitrary powers, and they kept the polls open for two and three days, and in the case of Georgia, for five days. There is no doubt that there was repeating, although the military authorities exerted themselves most sincerely to prevent it. Their purpose was not, in any case, to permit fraud, but to give every opportunity to the freedmen to vote. Their efforts were aided by the fact that the elections in the Northern "States" during the autumn showed, in most quarters, large Democratic gains, and by the fact that in one of the great Northern "States," Ohio, the proposition to enfranchise negroes by an amendment to the "State" constitution was rejected by a large popular majority. The effect of these facts was to encourage the whites in the South, who had registered with the intention of defeating the proposed reconstruction by abstention from voting, to vote with the hope of securing a majority of the delegates to the proposed conventions.

[Sidenote: The result of the elections.]

The result was that in all the communities to be reconstructed as "States" a majority of the registered voters voted on the question of convention or no convention, and a large majority of those voting voted in {149} every case for the holding of the convention. The figures were as follows: In Alabama, of the 165,813 registered voters, 96,866 voted on the question of convention or no convention, and 90,283 voted for holding the convention. In Arkansas, of the 66,831 registered voters, 41,134 voted on the question, and 27,576 of these voted in favor of holding the convention. In Florida, of the 28,003 registered voters, 14,503 voted on the question, and of these 14,300 voted in favor of holding the convention. In Georgia, of the 191,501 registered voters, 106,410 voted on the question, and of these 102,283 voted in favor of holding the convention. In Louisiana, of the 129,654 registered voters, 79,089 voted on the question, and of these 75,083 voted in favor of holding the convention. In Mississippi, of the 139,690 registered voters, 76,016 voted on the question, and of these 69,739 voted in favor of holding the convention. In North Carolina, of the 179,653 registered voters, 125,967 voted on the question of convention or no convention, and of these 93,006 voted for holding the convention. In South Carolina, of the 127,432 registered voters, 71,046 voted on the question, and of these 68,768 voted for holding the convention. In Texas, of the 109,130 registered voters, 56,129 voted on the question, and of these 44,689 voted for holding the convention. And in Virginia, of the 225,933 registered voters, 169,229 voted on the question, and of these 107,342 voted for holding the convention.

[Sidenote: The character of the Convention delegates chosen.]

The great mass of those who registered and refrained from voting were the whites who were opposed to the Congressional Acts for Reconstruction, and hence the persons voting were chiefly the newly enfranchised. This was likewise true in the voting for the delegates to the conventions, with the result that radical men were, for the most part, {150} chosen. They were new men to the political society of the South. There were a few of the old Whigs among them, who had remained true to the Union in their sentiments during the rebellion, but the most of them were "carpet-baggers," that is adventurers or new settlers from the North, "poor white trash" and negroes. In the South Carolina convention there were 63 negro delegates to 34 white. No such hideous bodies of men had ever been assembled before upon the soil of the United States for the purpose of participation in the creation of a "State" of the Union, and but for the control exercised over them by the military commanders, and the co-operation between the commanders and the small conservative white element in these bodies, the result of their work would have been the most ghastly travesty of justice, common-sense, and common honesty which the republic had ever been called upon to witness.

[Sidenote: The work of the conventions.]

During the winter and spring of 1867-68 the work of these conventions went on under the greatest extravagance and incompetence of every kind. The constitutions which came from them provided for complete equality in civil rights and, in some cases, in advantages of a social character, such as equal privileges in public conveyances, etc. They also not only established negro suffrage, as in fact was required by the Reconstruction Acts, but they, in most cases, disfranchised those whites whom the proposed Fourteenth Amendment would disqualify from holding office. In Alabama, Arkansas and Louisiana they went even further than this and disfranchised also, in the case of the first two, all who "had violated the rules of civilized warfare," and in the case of the last, all who had voted for secession, or had advocated treason against the United States in the press or the pulpit. It is true {151} that in most cases ways were provided for removing these disabilities, but they were generally connected with such self-stultifying requirements as to make them worthless.

The restrictions upon eligibility to hold office or mandate were in general the same as those imposed on the exercise of the suffrage, and in some cases they went even further, as in the cases of the Mississippi and Virginia instruments, by both of which anybody who had voluntarily participated in the rebellion, or had voluntarily given aid or comfort to those who had, was disqualified.

[Sidenote: The vote upon ratification.]

[Sidenote: Fraudulent voting and unlawful voting.]

[Sidenote: The recall of Pope and the appointment of Meade in his stead.]

The next step in the procedure was the submission of these constitutions to the voters. The registration was effected in the same manner as for the vote on the question of holding the conventions, and the election of the delegates; and the elections were held, as before, under the direction and control of the military commanders. The voting upon the question of ratification came off first in Alabama. General Pope had issued orders that the votes of persons registered in one precinct might be received in another, and that "State" officers and legislative members should be elected at the same election with the vote on ratification, and by the same voters. There is no doubt that the General only desired to secure the freedmen, who were then moving about restlessly, in their right of suffrage under the Reconstruction Acts, and to expedite the process of reconstruction so far as possible. But he undoubtedly opened the door to fraudulent voting by offering unrivalled opportunities for repeating, and he also violated the law and practice under the Constitution of the United States in regard to the qualified electors of "State" officers and legislators. Such officers and legislators could have been constitutionally elected only by the electors {152} designated in the constitution submitted for adoption. The qualifications of the electors who vote upon the question of the adoption of the first "State" constitution are necessarily fixed by Congress, but Congress has no constitutional power to fix the qualifications of the electors of "State" officers and legislators. Neither has the constitutional convention, which frames the first "State" constitution any such power, for the constitution which it frames is only a proposition, and ratification by the electors designated by Congress is necessary to its validity. Furthermore, any resolution which it might pass ordering the election of "State" officers or legislators by the electors designated by the Congressional statute is only a proposition to those electors, which must be accepted by them by a preliminary vote before they can proceed to the election of such officers and legislators. The General certainly did not understand these niceties of constitutional law and practice, and his desire to hurry up the re-establishment of civil government was rather laudable than otherwise. The President, however, who had in his Attorney-General one of the ablest lawyers of the country, understood well the constitutional limitations upon the General's powers and duties. He recalled the reckless commander and sent the more conservative Meade to take his place, December 28th, 1867.

[Sidenote: Rejection of the constitution in Alabama.]

Before the election came off, however, a bill was introduced into Congress, and passed the House of Representatives, and was making its way, a little more slowly, but surely, through the Senate, which authorized the election of "State" officers and legislators in the communities suffering reconstruction at the same time that the vote should be taken upon the ratification of the new constitutions and by the same electors. Congress had not a whit more power to {153} do this than the commanders, and the President knew this well enough, but he gave no instructions to Meade, and so the commander permitted the voting for "State" officers and legislators at the same election that the vote was taken upon the question of the ratification of the constitution and by the same electors. But the registered voters refrained from voting upon the question of ratification in sufficient numbers to reduce the vote to several thousand less than half the registration. The proposed constitution was thus rejected under the provision of the Reconstruction Acts which required a vote exceeding the half of the registration, as well as a majority of that vote, for ratification. The "State" government chosen at this same election was thus in the air.

[Sidenote: The statute of Congress changing the proportion of votes to registration in the ratification of a constitution.]

The Senate now passed the House bill providing that the approval of a majority of those voting, no matter what the proportion of the vote to the registration might be, should be regarded as a sufficient ratification of the proposed "State" constitutions for the communities suffering reconstruction; and although this Act was passed more than a month after the vote on the constitution was taken in Alabama, and although, furthermore, General Meade reported that a majority of the registered voters had not voted on the question of ratification, and that he interpreted this to mean that a majority of the registered voters did not want the constitution, yet Congress, as we shall see later, applied this new law of March 11th to the Alabama election which had taken place in the first days of the preceding February.

[Sidenote: Criticism of the statute.]

In the original requirement that the vote to be effective must exceed half of the registration, Congress was still upon the ground of correct principle. When it left this ground it virtually accepted the principle that republican "State" governments may be {154} legitimately created by a minority of the lawful voters against the will of a majority of the lawful voters, and that, too, not by allowing that minority to demonstrate its political superiority to the majority by greater intelligence, or shrewder management, or even by brute force, _but by the aid of power coming from without_. Now this is not, in correct political science, "State" government in a federal system, autonomous local government, at all. It is provincial government in local affairs, more or less complete as the necessity for the outside aid is more or less continuous. The Republicans had denounced the Johnson "State" governments upon the ground, among other grounds, that they were minority governments, minority governments in the vague and uncertain sense that not a majority of the adult males had been enfranchised, and not in the clear and distinct and unmistakable sense that a minority of the enfranchised, supported by the military power of the United States, might impose its will upon a majority of the enfranchised. There was nothing disloyal in the registered voters of Alabama giving Congress to understand that a majority of them preferred the continuance of the military régime, or the creation of a Territorial government for them by Congress, to the "State" constitution offered them. But it was utter self-stultification for Congress to take the ground that the Johnson "State" governments were unrepublican because they did not enfranchise all adult males of whatever race, color, or condition of mind or estate and overthrow them on that ground, and then proceed to create new "State" governments in their places upon the basis of a minority of the already duly qualified and registered voters. No impartial student, at this day, can view this terrible inconsistency in any other light than that of a high political crime.

{155} [Sidenote: Ratification in Arkansas.]

While the Senate was proceeding with the bill, another of the Southern communities was rapidly approaching the date fixed for voting upon the proposed "State" constitution, viz., Arkansas. The bill was passed by Congress the day before the voting began in Arkansas, but it was not known in Arkansas that it had been passed until near the close of the second day of the election. It could, however, be claimed that it was applicable to the case, and it certainly made all figures unnecessary except in regard to the actual voting. The "State" officers and legislators under the constitution to be adopted were chosen at the same time, by the Congressional electorate in Arkansas, and not by the "State" electorate, created by the new constitution.

[Sidenote: Ratification in North Carolina, South Carolina, Georgia, Florida and Louisiana.]

In the course of the next two months, April and May, voting upon the question of ratifying the new "State" constitutions took place in North and South Carolina, Georgia, Florida and Louisiana. As the Congressional Act of March 11th was in full force at this time, the result was affirmative in all cases.

[Sidenote: Second attempt in Georgia to obstruct Reconstruction.]

During the Reconstruction proceedings in Georgia Governor Jenkins had refused to issue an order to the "State" Treasurer to pay a sum of forty thousand dollars, on the ground that the "State" legislature (Johnson government) had not made any such appropriation. For this refusal Meade removed him and the "State" Treasurer and Controller General, and appointed military men in their places. These new officers seized the "State" buildings, but Jenkins succeeded in getting away with the money in the treasury. He went to Washington and undertook to institute a proceeding in the Supreme Court of the United States against Generals Grant and {156} Meade to restrain the officers appointed by Meade from levying taxes upon the people of Georgia, and from collecting the same and the other income of the "State," as well as from exercising other functions. The Court gave its permission to the filing of the bill, but put off the hearing of the argument until the next term, and before this arrived, the new constitution had been ratified, and new "State" officers elected along with the ratification. In the other communities mentioned no opposition to the reconstruction process was offered.

[Sidenote: Rejection of the Constitution in Mississippi.]

On the other hand, the opponents of the proposed "State" constitution in Mississippi went into a most earnest and energetic campaign against its ratification and succeeded, at the election on June 22d, in rejecting the same by between seven and eight thousand majority. Many of the better class of negroes voted with their old masters, that is with such of these as were allowed by the Congressional acts to register and vote, against ratification. Those in favor of ratification claimed that fraud was practised by their opponents, in the face of the fact that they had the elections in their own hands, and they petitioned the military authorities to put the proposed constitution, notwithstanding its rejection at the polls, into operation. This these authorities refused to do.

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