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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