Alcorn and the Reconstruction Acts, Pragmatism over Principle

This post is number sixteen in a historical series dealing with Mississippi’s Whig/Reconstruction senator and governor, James Lusk Alcorn. In the three posts prior to this one (see my 13 and 24 January and 9 February 2015 posts below), I described to the reader the situation in Mississippi (and the South in general) immediately following its surrender to Federal forces and the growing battle between President Johnson and Congress over the course Reconstruction would take.  Johnson’s defeat led to enactment of the Reconstruction Acts across the South. In this post I return to the subject of Alcorn proper, picking up the thread from the fall of 1866 after the unrepresented South had rejected ratification of the egregious Fourteenth Amendment. Congress reacted by sweeping away civil government and imposing martial law.

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From the time he got wind of the Fourteenth Amendment (probably December 1865 when he was in Washington), Alcorn linked Mississippi’s readmission to the Union to its ratification. Indeed, there was a bill in Congress that spring (1866) that would have assured the South’s reentering the Union in return for ratification. The bill died in Congress that summer (but the requirement did not). Alcorn believed that readmission and representation (the two were actually one) were prerequisites for peace, order, and prosperity, and he was willing to sacrifice principle to do business with the devil himself to obtain them. By the devil himself, I refer to the Radical Congress, not the Negro, but by virtue of the voting booth, the black man provided the potential for advancing the Radical cause. White Southerners considered that power illegitimate (which it was), but Alcorn warned in November of 1866 the Negro would get the vote anyway, and it would be better “to align him with us than against us” (I’m paraphrasing here). 

Under the Reconstruction Acts (which were also unconstitutional), Congress imposed martial law across the South. General E. O. C. Ord assumed command of the Fourth Military District (Mississippi and Arkansas with headquarters in Vicksburg) on 26 March 1867. In reporting the general’s initial inspection of the state in company with Governor Humphreys, the editor of the Jackson Clarion made reference to the general’s wartime record as that of a soldier doing his duty, and the man indicated no “spirit of revenge” in his present position.  

General Ord was a native of Maryland and a West Point graduate. He was familiar with Mississippi. He’d been Sherman’s right wing at Corinth and his left at Jackson. He’d been present at the surrender of Vicksburg. If you want my opinion, Ord should have been concerned with thoughts of revenge, but not his own. Truth was though the people of Mississippi were apprehensive about the introduction of martial law, as any people should be; civil servants were concerned with their jobs, and Mississippi wanted no problems with the unwarranted military presence. 

Ord initially dispelled concerns over civil positions—as long as everything was in keeping with the Reconstruction Acts—so give him a little time, in the meanwhile everyone “continue to come to work” (again I’m paraphrasing). What it boiled down to (initially) was that vacancies would be filled by “loyal” citizens. In time “disloyal” citizens would be removed from positions of public trust for “failure to do impartial justice to persons accused of crime”. Such vacancies would eventually be filled with “loyal” citizens. General Ord was the arbiter of what constituted a “disloyal” citizen—or what was considered “impartial justice”—which when expanded, translated to saying anything against the Reconstruction Acts.  

To ensure change of personnel was in keeping with said Acts, no incumbencies were to be filled until the electorate was registered—but Ord did made appointments before elections were held. I’m guessing these were “temporary” to keep the wheels of civil government turning, and numbered 71, which was more than there were vacancies, so he expanded the number of “loyal” civil servants. In his defense he removed only eight “disloyal” incumbents, but that number included all the municipal officers in Vicksburg in the summer of 1867. (The removal of all civil servants did not occur until the one-month “reign” of General McDowell in the summer of 1868, which I will address in a later post).

Other than the dubious role of “establishing order” in Mississippi (see my 24 January post below on how ludicrous that argument was), General Ord’s objective was to register the electorate—that meant registering the “loyal” citizens and ensuring “disloyal” citizens were denied the franchise. The focus, of course, was ensuring the Freedman’s voice was heard at the ballot box and the ex-Confederate’s was not. Apparently “loyalty” was defined in the negative as “not having taken up arms against the United States government” (unless you were a slave under duress, of course). It had nothing to do with “professed” loyalty to the United States, but rather “never having been disloyal.”  

The oath was restrictive by design to ensure a significant number of Southern white males could not take it without perjuring themselves. Ord vacillated between allowing these men to commit perjury and having the registrar report them for subsequent prosecution or having the registrar determine whether they would or would not be registered on the spot (the registrars were all “loyal” citizens, of course). General of the Army, Ulysses S. Grant, resolved the issue by “suggesting” the registrar make the determination. And just for the record—a presidential pardon did not remove the encumbrance of having raised arms against the United States.  

Reality struck home in September of 1867 when registration was complete. Thirty-three of Mississippi’s sixty-one counties had Negro majorities, meaning 60,167 Negro voters had been registered against 46,636 whites. My brief research indicates that ten to twenty percent of the white male population was disfranchised due to their service to the Confederacy, but there’s a big difference between ten and twenty percent—like doubled, duh, but even if the high figure is taken and an additional 9328 voters added to the rolls, the Negro was still in the majority. The fact had to be faced that Congress would take Mississippi’s political affairs from her taxpayers and hand them to ex-slaves and Northern strangers who’d invaded the state and knew nothing of its values and history nor cared for its welfare—oh, but they would prove so adept at spending other people’s hard-earned and pathetically sparse money. 

While Ord busied himself with restoring order and registering the electorate that summer of 1867, Alcorn was busy devising a plan for survival in the face of this new reality. In Memphis he spoke to a group of mostly Old Whigs and the unaffiliated and emphasized the need for Southern political parties and their sharing the Negro vote. This he said would preclude a white party and a separate black party controlled by white Northerners. He envisioned his old Democratic nemesis vying for power with a new party made up of Douglas Democrats and Whigs—or what once were Whigs—but something other than Republicans. They would divide the Negro vote between them (probably much like they once vied for the votes of “lesser” whites in ante-bellum days). [You know, in a way that’s what happened in the first two decades after Reconstruction ended and we’d rid ourselves of the Yankee contagion: Democratic candidates courted the Negro vote across the South. Then right before the turn of the century they figured it was easier to exclude the black vote altogether.] 

On the eighth of August (before the count of registrants was completed), Alcorn published a pamphlet titled the Views of the Honorable J. L. Alcorn on the Political Situation of Mississippi. In it, he addressed the Negro majorities shown from the registrations in Tennessee, Alabama, and Louisiana and emphasized the situation was going to be the same in Mississippi. The electorate formed under the Reconstruction Acts would determine the governor, the legislature, and the courts, and this situation would be sustained by military force for who knew how long. The only way to fight it he said was by “using our brains.” He denigrated the wide-spread belief that the Negro would be influenced by his former master as “bullshit” (that’s my word, not Alcorn’s) and used the example of Governor Brownlow’s election in Tennessee to refute that delusion. The Negro majority, he warned, would fall under the influence of the Republican Radicals.  

In Views of the Honorable..., Alcorn pointed out Congress’ partisanship. Still stumping his hybrid Douglas Democrat-Whig Party, he argued that more moderate/non-Radical Republicans feared too close an association with those men who professed advancement of the colored race, that they feared Negro suffrage would adversely affect them with their constituents.  

I am toying with the thought that maybe Alcorn himself is a bit delusional here. Granted he was a lot closer to the problem than I am, but I’m not sure if northern Republicans were worried about Negro suffrage damaging them or if he was thinking they should be, because he had to be thinking the same thing in regards to his own stance on that subject. Yes, vocal demands in their own districts might hurt them, but it’s the summer of 1867 and the elections of 1866 are over—and the Northern electorate has told its bulldogs to sic ’em (that meaning the South) by packing Congress with anti-Johnson Radicals. Of course, Alcorn might have simply been trying to convince the people of Mississippi his plan (his new party) still had a chance, and he wanted the opportunity to try no matter how bleak its chances. 

He goes on to say that the Republicans could not afford two parties in the South and would welcome white support in politics, since to his way of thinking, the Radicals in the North were a loose cannon which would all too soon have to be bolted down (or pushed overboard). Personally, I think he was betting too much, too soon on moderate Republicans. He was, in fact, prescient—that is exactly what happened to the Republican Party in the South—it split between the Radicals and moderates (torn asunder by the weight of its own corruption is how I like to think of it). In the meantime he stated for all Mississippians to hear—and the majority didn’t like what they heard—that he was prepared to ask terms from the Radicals. 

Alcorn wasn’t the only Mississippian who was, at least, considering pragmatism over principle. Representation in Congress was a siren’s call, and other respected men such as A.G. Brown (Democratic governor and U.S. Senator who served in the Confederate Senate); Ethelbert Barksdale (Democratic leader and editor of the Jackson Clarion); Judges J.W. Watson (Confederate senator from Mississippi) and J.A.P. Campbell (Chief-Justice of Mississippi, member of the original Confederate Congress, and signer of the Confederate Constitution. He fought for the Confederacy and was severely wounded in battle, and after the war, he refused to take the oath of allegiance to the United States); Alcorn’s old Whig lawyer friends William Yerger and Wiley P. Harris; John J. McRae (ex-Democratic governor); and Fulton Anderson (Whig and member of the Confederate Congress)—an odd mix of Whigs and Democrats, secessionists and non-secessionists, those who openly served the Confederacy and those who did not—all supported getting control of the Negro vote before the Republicans did. So, this was not a bunch of scalawags looking to exploit the conditions for personal gain and power. They were weighing options to offset the evil permeating the North. Reading between the lines, and given the records of the handful of men cited above, they were no doubt buying time, believing that representation in Congress would give them the leverage to later right their world. But how do you right the world as they knew it by destroying federalism, which is what the Fourteenth Amendment ultimately did? Still, given all the illegalities and unconstitutional gymnastics Congress was forced to employ thanks to the intransigence of the Southern states in resisting ratification of the Fourteenth Amendment, believers in state rights today can hold out hope that a great statesman will reappear and wage a successful battle to nullify the damn thing—the legal grounds are there.  

To conclude this post, note that some of the men cited above became members of the state “reconstruction club” which supported quiet acquiescence to, not advocacy of, reconstruction. Like Alcorn, this “reconstruction club” also referenced securing “terms” from the Radicals. 

I’m sorry, but to “secure terms from” or “offer terms to” anyone—don’t you need to possess something the other party wants and be in a position to withhold it? The South had nothing to offer the Radicals they weren’t already taking for themselves, and there was no legal way to stop them—the Northern electorate had ensured that.  

Men such as those who made up the Radical Republicans during those dark days provide some modicum of consolation when one considers there might really be a hell, but I’d be content just to hear them excoriated as the traitors that they are.  

Things will get lots worse before they get better. Thanks for reading and more to come. 

Charlsie

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In addition to this post on Alcorn and the two sighted in my prologue above, see 17 February, 24 March, 16 April, 17 July, 24 July, 18 September, 9 October, 18 October, 5 November, 22 November, 15 December, 29 December 2014 and  13 January 2015 below, best read in sequence from oldest to most recent..

 

 

  

 

Congress and Judicial Review of the Reconstruction Acts in Mississippi

This short post is number fifteen in a historical review of Mississippi’s Whig/Reconstruction senator and governor J. L. Alcorn and my third overview of the enactment of the Reconstruction Acts in Mississippi (see my 13 and 24 January 2015 posts below). I will pick up with Alcorn proper and his actions within this federally-mandated setting (1866-1867) in my next post.

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The Southern states’ rejection of the unconstitutional Fourteenth Amendment in the summer of 1866, in tandem with the North’s validation of the Radical Republican agenda in Congressional elections that fall, provided the Radicals the leverage they needed to assume their coveted desire to dictate Reconstruction. The Southern civil governments which had been operating effectively for more than a year were swept away and martial law established across the South. Private law remained fundamentally unchanged, but the military commanders were vested to modify or supersede it at their discretion. But the main role of the district commanders—and this is oh so telling—was to maintain order, register a new electorate (which for the most part enfranchised the non-taxpayer and disfranchised the taxpayer), and direct the movement for the reestablishment of “republican” government. Make that “Republican” government and you’ve got the true picture. Mississippi and the other Southern states had had republican governments since statehood. They’d never been constitutionally challenged nor should they have been.  

Under martial law, the district military commanders had absolute authority over life, liberty, and property, except that death sentences had to be approved by the president. 

The Radicals now argued that with the Southern states’ attempt to withdraw from the Union and in waging war against the United States (read that “in defending itself against Northern aggression”) it had forfeited its status as states. This despite the fact they’d nullified their ordinances of secession a year earlier. James Garner in his 1901 Reconstruction in Mississippi stated the Boutwell committee (creator of the Reconstruction Acts, see my 24 January post below) might have hit closer to the mark by claiming the Southern states had forfeited their right to be viewed as states if there was anything in the Constitution about a class of states not being equal to the original states. And what pray tell would give Congress the right to define such status? So after one post-war year operating as states, Congress decided the Southern states were not states—and used as its primary arbiter the fact that Congress had yet to guarantee the states that “Republican” form of government.  

Now, the only recourse the South had was through the courts. The state of Mississippi applied to the Supreme Court for an injunction against President Johnson and the district commander arguing that the state had nullified the articles of secession approved by a portion of the population; that the state had always been a member of the Federal Union (wasn’t that the administration’s argument all the time?) and there was nothing in the Constitution that gave Congress the authority to expel a state from the Union.  

I feel compelled to share this with my readers: Upon learning of the above cited injunction put forth by Judge Sharkey and Robert J. Walker, The Jackson Clarion expressed its offense thusly calling the argument “...a plea of not guilty to an act which is unjustly alleged to be a crime, and which all the world knows the state did deliberately commit....” I can just see Judge Sharkey pulling his hair out by this time, but The Clarion’s concern primarily seemed to be for Jefferson Davis who was still in prison for the “crime” of treason.  

In the injunction, Sharkey and Walker further maintained that President Johnson was being coerced to institute martial law by Congress and the decision belonged in the court not with the executive. The Supreme Court refused to file the bill on the grounds that for reasons of expediency and policy, the president should not be interfered with by the courts in performance of his duties. No opinion was expressed as to the constitutionality of the Reconstruction Acts. 

Now the South decided to shoot a little lower on the totem pole. Mississippi filed an injunction in conjunction with a joint bill (Georgia vs Stanton), against the Secretary of War (Stanton), the General of the Army (Grant), and in Mississippi’s case, the Commander of the Fourth District (General Ord). In this case the Supreme Court said it held no jurisdiction over the subject matter in the bill and deemed it unimportant to examine the question as it respected jurisdiction over the parties defendant. The matter was deemed political vice dealing with persons or property. I beg your pardon? Political? This was a “political” issue? Yeah, it was a political issue all right, on the part of Congress and the Supreme Court, but not for the South. Like I’ve said in my earlier posts, tyranny reigned. So, this whole matter—the question really being the constitutionality of the actions taken by Congress as a result of the Reconstruction Acts—was not reviewed by the Supreme Court of the United States. 

But soon after, the district commander arrested one William McCardle, a Vicksburg newspaper publisher, for circulating “incendiary” articles regarding Reconstruction. After the Circuit Court of the Southern District of Mississippi sent him back into custody under the Reconstruction Acts, he invoked habeas corpus, and it looked like the Supreme Court was actually gonna have to look at it. It would have been a great win for the Radicals, but truth is, they were afraid the Court’s looking at McCardle’s case would undo the Reconstruction Acts in their entirety, so they withdrew McCardle’s case from appellate review, exercising the powers granted to Congress under Article III Section 2 of the Constitution. Needless to say, the South challenged the move which had appeared so promising in forcing the Supreme Court to actually look at the Reconstruction Acts, which anyone with half a brain knew to be unconstitutional. The Chief Justice of the Supreme Court upheld Congress’ right to pull the case under the “exceptions clause”. Here it is y’all, the exceptions clause: 

“In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 

So Congress made the “exception”. You all realize that Salmon P. Chase, Lincoln’s erstwhile, rabid abolitionist and egomaniacal Secretary of the Treasury was the Chief Justice of the Supreme Court when all these nonsensical rulings in favor of Radical tyranny were being made, don’t you? Anyone other than me wonder who directed Congress how to get out of the mess it had gotten itself into with McCardle—and got himself off the hook? 

The way was now clear for the coup de grace—passage of the Fourteenth Amendment.

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For earlier posts on Alcorn, best read in sequence from oldest to most recent, see 17 February, 24 March, 16 April, 17 July, 24 July, 18 September, 9 October, 18 October, 5 November, 22 November, 15 December, and 29 December 2014.