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.

_____________________________________________ 

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.

_________________________________

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.

James Lusk Alcorn, Waking up from the Nightmare and Preparing for the Dark Days Ahead

This post is number nine in a historical review of Mississippi’s Union Whig/Republican governor and senator during Reconstruction. See my earlier posts, best read in sequence, oldest to most recent, from 17 February, 16 April, 24 March, 17 July, 24 July, 18 September, 9 October, and 23 October 2014.

__________________________________________________

One last point regarding Alcorn’s expressed disappointment with what he perceived as Jefferson Davis’ bungling of the slavery issue in the face of international opinion—I’m not clear on what exactly Alcorn would have had him do. The South was facing off against a western world expressing a desire to be rid of the institution. Determined as the South was to preserve it, how could the man have done anything but “bungle” the issue? The Confederacy should have been seeking alliances in places that still respected the institution—Africa for instance.

Okay, I am being facetious. The Confederacy needed money and arms—she needed a European ally and in the end none were forthcoming. I have no doubt the Lincoln administration and his Secretary of State  “Henry” Seward played a significant role in that and the agreement they reached, particularly in the case of Britain, had little to do with any common abhorrence to slavery outside the sphere of abolitionists. It’s my opinion that Alcorn’s expression of disappointment in Davis’ efforts actually represented what we refer to today as  “smoke and mirrors”.

During the spring of 1864 Alcorn made a lengthy visit to General Napoleon Buford (that would be United States Army) in Helena, Arkansas during which he reviewed Negro troops and visited two Negro schools, all of which he described in glowing terms. These visits could possibly be construed as reconnoiters and may represent Alcorn’s tentative acceptance of things to come and prepare him, and with his leadership the state and the South, to deal with emancipation. That’s just a guess on my part, but there can be no doubt he was doing some cogitating on the subjects of slavery and emancipation.

Several months later, during the fall 1864 legislative session, he suggested that the Confederacy submit the slavery question to international appeal during which an international agency would study Southern slavery for twenty years and if not convinced at the end of that period that Southern slavery was not best for all concerned than the South could fight the entire world.

Yeah, the man was up to something. Maybe he was simply providing a smart-ass (excuse my use of the vernacular) response to something someone said that he considered stupid. But trying to prove to the world that Southern slavery was kinder and gentler than anything that had come before was like spitting in to the wind. Personally, I’d say the argument was true, but I’m admittedly prejudice and let’s face it, our institution being kindler and gentler than anything that had come before really isn’t saying a lot. Shoot, I heard it stated a couple of years ago that North Carolina considered its slavery kinder and gentler than that of the Deep South where slaves were worked to death. I wrote a blog on that subject, which I considered both an offense and a monumental joke.

My point is that in a world poisoned on the word “slavery” one is not going to find folks jumping at the opportunity to serve on such a tribunal. The people (read nations) who would have given Negro slavery an honest appraisal were the very ones who brought it to the New World. They’d coined the very euphemisms and arguments used to justify the humaneness of African slavery, then within a couple of centuries had turned those arguments on their head to condemn it. Alcorn was not stupid. He was a slave owner and knew the institution was not the monster abolitionists portrayed it to be, but it definitely had shortcomings, particularly for people determined to convince the rest of the world it believed its own propaganda.

It was also in the fall of 1864 that Alcorn, still registered on the Commissions of State Troops, assumed the rank of colonel and a thirty-day stint, at Governor Charles Clarke’s request, to organize militia troops to prevent the escape of deserters and Negroes in Coahoma, Bolivar, and Washington Counties (all in the Yazoo-Mississippi Delta). The fact that a Mississippi legislator, serving as a colonel of militia in the Delta apparently near side by side with a U.S. Army general (Alcorn’s friend Buford from Helena) is testimony to the instability of the area. Apparently by the early winter of 1865, Federal forces had gained the upper hand. Buford was freeing Negroes and promising them justice against their former masters and requiring whites to seek permission before buying supplies and selling their cotton—both of which required a loyalty oath. Alcorn apparently bypassed that loyalty requirement by continuing to sell to smugglers (that was probably more profitable anyway, if riskier). He did have to request Buford’s permission to remain on his land, with the promise that he behave himself. The local Negroes were to report on any misconduct.

Within the Federal lines, civil courts reopened, and Alcorn started practicing law again. In early February, the Mississippi legislature met in Columbus and sat until March, but Alcorn did not put in an appearance until a month later at which time he made a speech stating that the entire world was against slavery and that the state legislature as well as the Confederate Congress should make an immediate declaration that all slaves would be free after twenty years. Hmmm—guess he’d tabled that “international tribunal” idea.

Yes, I’m sure he’d heard of the Emancipation Proclamation. He had a plan—turned out to be of no value, but there was a method to the man’s madness—but before going there, I want to note that, indirectly, Alcorn gave two sons to the Confederacy. His eldest, Milton, served as a member of a Mississippi unit, which was brought into the regular army. He was captured in 1863, released, and finally mustered out of service at war’s end as a major in Featherston’s Brigade, 1st Mississippi Regiment. He returned home an alcoholic and committed suicide soon after conflict’s end. In January 1865, Henry, Alcorn’s younger son by his first marriage, joined the Confederate Army against his father’s wishes. He no sooner arrived at his first duty station in Murfreesboro, Tennessee, than he contracted typhoid, was left behind by his unit, taken prisoner, escaped from a camp in Ohio and made his way to Richmond where he was taken under the wing of members of the Confederate Congress, which had just adjourned. These folks had him en-route home when he unexpectedly died. 

In his diary, Alcorn indicates shock at Lincoln’s assassination and the fervent hope that the deed was the act of one individual. “I can’t think that any Southerner of character would be willing to turn assassin or become the accomplice of such.” I like the part about “become the accomplice of such.” Prescient or anxious? Either, but more likely there was plenty of speculation early on as to who was behind the murder of Lincoln.

With war’s end, there was naught to do but transfer the struggle back to the political arena. To paraphrase his attitude: We said we were out, they said we were in, and by force they won. Now we must yield and take the oath to support and defend the Constitution and elect our representatives. (Just between you, me, and the fence post the Constitution was going to take a lot of defending, and we lost there, too. The people of the United States lost their republic during Reconstruction.) The “peaceful” means to protect our way of life had been “proven” wrong by force of arms, not by the Constitution.

Governor Clarke called for a meeting of the state legislature in May 1865 in Jackson. It was the governor’s intention to call for a convention to repeal the ordinance of secession and hasten Mississippi’s reentry into the Union. The legislature met, not as a legislature, but in Governor Clarke’s words as a committee of public safety and it did so under the looming shadow of martial law. Having gotten wind of the meeting, President Johnson directed General E. R. Canby, Department of Mississippi, to arrest and imprison any member of the Confederate or state government that attempted to “legislate.” Apparently, the recognition between a legislative body and a committee of public safety was murky—or in the eyes of the beholder. Canby sent his guidance to Brevet Brigadier General E. D. Osband in Jackson, who reported back that the “so-called” legislature met on the 20th of May, the same day he’d received the dispatch from Canby. He’d found the legislature on the brink of adjourning and decided not to interfere since they claimed not to be “legislating.”

Osband reported the group had passed three acts: To call for a convention (I assume to repeal the ordinance of secession), to send three commissioners to Washington to ascertain from President Johnson what Mississippi needed to do to re-enter the Union, and to deplore Lincoln’s assassination. Upon adjournment of the legislature, Osband informed Governor Clarke he could not recognize the civil government of Mississippi, and he took custody of the public books, papers, property, and the executive mansion. Governor Clarke surrendered all under protest, but no force was required. Two days later, Osband arrested Clarke under orders from President Johnson. A witness to the arrest left the following record of Governor Clarke’s reaction [recall that General Clarke had been seriously wounded at both Shilo and Baton Rouge]: “The old soldier, when informed of the purpose of the officer, straightened his mangled limbs as best he could, and with great difficulty mounted his crutches, and with a look of defiance said: ‘General Osband, I denounce before high heaven and the civilized world this unparalleled act of tyranny and usurpation. I am the duly and constitutionally elected governor of the state of Mississippi, and would resist, if in my power, to the last extremity the enforcement of your order. I only yield obedience, as I have no power to resist.’”

Mississippi was now without a state government of any kind. Governor Clarke’s actions and those of the legislators on the surface must appear futile, but their haste to do “something” might well reflect a last desperate attempt to beat the Radicals to the finish line. But alas, Andrew Johnson, for whatever reason, jumped in their way. Alcorn opposed the idea of any sort of convention to bring the state back into alignment with the Union—he wanted Mississippi back in the Union immediately where not only she but also slavery were both protected by the Constitution. Once back in the safety of the fold, Alcorn hoped to use the abolition of slavery within the state to win concessions from the North. That was probably at the root of what, at first blush, appeared to be his delusional recommendations regarding the handling of the slavery issue across the South and his fault-finding with Davis’ handling of international opinion.

Of course, the Republicans realized all this, hence the rabid insistence on the states passing the Thirteenth amendment and eventually the Fourteenth amendment (the latter unconstitutional on every level) before the Southern states were allowed back into the Union—oxymoronic since the War was predicated on the argument the Southern states could not leave the Union to begin with. The North not only shredded the Constitution, they added insult to injury by desecrating it.

I have no way of knowing if Alcorn really believed such a tactic would work, but nothing ventured, nothing gained, and there wasn’t much else left to venture. Perhaps he thought moderate Republicans would be able to control the Radicals. At the time, the slobbering maddogs had yet to gain control. But it was just that—only a matter of time. All efforts proved worthless.

With the adjournment of the “safety committee,” the legislators took one glimpse at the bayonets outside the statehouse door and quickly disbursed—unlike the governor, they wouldn’t fall under Canby and Osband’s net.

From Jackson, Alcorn traveled east to Eutaw, Alabama and Amelia still ensconced with her family. On July 4, 1865, he returned to Mound Place to begin again. His politics aligned with the pre-Civil War principles of (Southern) Wiggery, which alienated him from the radicals on both sides, but then he’d always been alienated from them—he must, actually, have felt pretty darn lonely. Now he would begin the arduous task of establishing a position from where he could lead a “reconstructed” Mississippi back into the Union. It would prove a long, hard row to hoe.

Thanks for reading,

Charlsie