II
Before considering the new constitutions of the States of Mississippi, South Carolina and Louisiana, and the decisions of courts respecting them, I have deemed it proper to review the history of Negro Suffrage and to indicate the unvarying attitude of the ruling classes of the South towards it. In the light of this history, let us now briefly examine these recent enactments in their relation to the political rights of the Negro.
It is no secret that the avowed purpose of the framers of these instruments was to deprive the Negro of the right to vote. Their purpose is not more startling than is the defiance with which they have hurled it from the housetops. This purpose they claim to have accomplished by taking advantage of the ignorance and poverty of the Negro; but the most cursory glance at these enactments will convince any one that neither intelligence nor wealth constitutes the basis of electoral qualification under them, while the confessions of the framers of them as well as their operation proves that neither ignorance nor poverty serves to disqualify.
In Mississippi a Negro may be as rich as Dives and as wise as Solomon and yet he may not be able to satisfy an ignorant and partisan registration officer that he is qualified to be an elector; while a white man may be as poor as Lazarus and may not possess the intellectual outfit of a Hottentot and yet he will experience no difficulty in convincing the same individual that he is qualified to exercise all the rights and privileges of that class whose “destiny it is to dominate.” This is the sort of educational qualifications these great constitutional documents prescribe!
How to disfranchise the Negro by an educational test without at the same time disfranchising a very large number of white men, was at first a problem that presented many difficulties to the framers of the Mississippi document. Such a problem, however, cannot long remain a difficult one to men who are masters of the art of legalizing fraud.
That the illiterate white vote might not, by the play of accident, become eliminated by an educational test, it was provided that that part of the constitution which prescribes it, was not to go into operation until one year after the adoption of the constitution. Before the expiration of that time another standard of qualification was provided and all who qualified under it were not to be affected by the subsequent operation of the educational test.
This latter provision is as follows, being section 241 of Article 12 of the constitution of Mississippi, defining who are electors:
“Every male inhabitant of the state, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, twenty-one years of age and upwards, who has resided in the state two years, and one year in the election district * * * in which he offers to vote and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretense, perjury, embezzlement, or bigamy, and who has paid on or before the first day of February of the year in which he offers to vote, all taxes which may have been legally required of him and who shall produce to the officer holding the election satisfactory evidence that he has paid his taxes.”
Under this section of the Mississippi constitution, the white population of that state qualified as electors. But to prevent the Negroes from qualifying, section 242 of Article 12, further provides that persons offering to register shall take the following oath:
“I do solemnly swear that I am twenty one years old and that I will have resided in the state two years and (this) election district for one year preceding the ensuing election, and am now in good faith a resident of the same, and that I am not disqualified from voting by reason of having been convicted of any of the crimes mentioned in the constitution of this state as a disqualification to be an elector, that I will truly answer all questions propounded to me concerning my antecedents so far as they relate to my right to vote and also as to my residence before my citizenship in this district, that I will support the constitution of the United States and of the state of Mississippi and will bear true faith and allegiance to the same—so help me God.
Any willful and corrupt false statement in said affidavit or in answer to any material question propounded as herein authorized shall be perjury.”
In the foregoing provisions attention is called to the following:
(1) The crimes mentioned as disqualifying from voting are such as it is always easy, when desirable, to convict the Negro of committing. Under the present method of administering justice in the states where these disfranchising constitutions operate, the Negro has neither any guarantee of a fair and impartial trial nor any protection against malicious prosecution or false accusations when it is convenient to convict him.
(2) The penalty for not paying taxes almost a year before election day is a disqualification from voting. But this of course is not the sole penalty. Whether he is a qualified elector or not, every man must in the case of real property pay his taxes, or suffer the loss of his property, and certainly no man, not even the poorest of the Negroes and poor whites, can escape the obligation of the poll tax by a mere forfeiture of his right to vote.[11] Thus the penalty for not paying taxes is twofold in so far as the Negro is concerned. The poor white man may or may not experience any difficulty about producing “to the officer holding the election satisfactory evidence that he has paid his taxes.”
(3) The Negro who may desire to vote must answer under oath not certain specific interrogatories concerning his antecedents and former places of residence, but to “truly answer all questions propounded” to him, with the understanding that the slightest mistake will be construed as a corrupt and willful false statement exposing him to prosecution for perjury, thus rendering him everlastingly disqualified to vote.
When, under the foregoing provision the white male inhabitants of the state became qualified electors, the following provision, being section 244 of article 12 of the constitution of Mississippi, went into operation:
“On and after the first day of January, 1892, every elector in addition to the foregoing qualifications, shall be able to read any section of the constitution of this state; or shall be able to understand the same when read to him, or give a reasonable interpretation thereof.”
This section contains the so-called educational test, and the elector’s qualifications under it are determined by a registration officer whose discretion is as limitless as his prejudices. The registration officers of South Carolina acting under a similar provision of the constitution of that state required the Negroes who offered themselves for registration to understand and explain section 4 of article 5 of the constitution of South Carolina, which is as follows:
“The supreme courts shall have power to issue writs or orders of injunctions, mandamus, quo warranto, prohibition, certiorari, habeas corpus, and other original and remedial writs, etc.”
Fearing apparently that these provisions of the constitution might not prove a sufficient barrier to the Negro’s intellect and cunning, the legislature of Mississippi has gone the full length of the power granted it, in its efforts to keep the Negro from voting. Section 3643 of the code of 1892 of that state, which regulates the appointment of managers of elections, contains this remarkably clever provision:
“The Commissions shall appoint three persons to be managers of election, who shall not be of the same political party, if suitable persons of different political parties can be had in the district.”
Imagine commissioners of election of the Mississippi type regarding a Negro, or a white man known to be favorable to Negro suffrage, as a “suitable person!”
One would suppose that the elector having successfully passed the ordeal of the registration officer would be allowed smooth sailing during the remainder of the voyage to the polls. But no; having passed Scylla, he must encounter Charybdis at the very brink of the ballot box; for section 3644 of the above mentioned Code provides that any of the managers of election
“May examine on oath any person duly registered and offering to vote touching his qualifications as an elector.”
The effect of the constitution of Mississippi is to set up a standard of qualification of a much higher intellectual scale than that of any of the most enlightened states in the Union and to deprive a hundred and eighty thousand citizens of the elective franchise previously enjoyed by them.
The attempt is often made by southern politicians of the dominant class to justify the Mississippi plan of disfranchisement by pointing to the fact that Massachusetts, a northern state, has provided for a qualified suffrage by the adoption of an educational test. But compared with the Mississippi provision that of Massachusetts is as modest and simple as the average Mississippi school house.
Amendment XX to the Massachusetts Constitution is as follows:
“No person shall have the right to vote, or be eligible to office under the constitution of this commonwealth, who shall not be able to read the constitution in the English language, and write his name. Provided however, that the provisions of this amendment shall not apply to any person prevented by physical disability from complying with its requisition, Nor to any person, who now has the right to vote, nor to any person who shall be sixty years of age or upwards at the time this amendment shall take effect.”
Thus Massachusetts requires that those wishing to exercise the elective franchise in the future must be able merely to read the English language; and expends annually more than four dollars per capita to educate them; while Mississippi requires, not only future electors, but those who have previously exercised the right to vote to give “a reasonable interpretation” to the satisfaction of a registration officer, and expends annually less than one dollar per capita for education!
Here it may be well to state that, although the idea of a qualified suffrage grew out of the desire and the necessity to prepare the foreign born element of our population, aliens to our institutions and language, for an intelligent exercise of the ballot, the Negro does not make objection or complaint to a just and fair educational test of his fitness to exercise the right of suffrage. Absolutely loyal to republical institutions, he is willing to go as far as any in the matter of fairly and justly protecting the ballot from abuses that grow out of ignorance.
The Constitution of Mississippi has served as the pattern for the disfranchising enactments of South Carolina and Louisiana. The main provision in the South Carolina Constitution regulating suffrage is as follows:
“Up to January 1, 1898, all male persons of voting age applying for registration, who can read any section of this constitution submitted to them, or understand and explain it when read to them by the registration officer, shall be entitled to registration and become electors.”
It will be observed that the understanding and interpreting clause of the foregoing operates the reverse of that of the Constitution of Mississippi. The South Carolina provision was limited to cease after January 1, 1898, while that of Mississippi was limited to begin January 1, 1892 and to continue thereafter without ceasing.
Subdivision (d) of the above mentioned section of the South Carolina Constitution provides as follows:
“Any person who shall apply for registration after January 1, 1898, if otherwise qualified, shall be registered: Provided that he can both read and write any section of the constitution submitted to him by the registration officer or can show that he owns and has paid taxes collectible during the previous year on property in this state assessed at three hundred dollars ($300) or more.”
Subdivision (c) of the South Carolina law effected the disfranchisement of more than one hundred thousand electors who had passed the legal age of attending school. But for this fact, the provision of subdivision (d) if fairly applied could meet with no objection. However, it cannot be absolutely fair as long as South Carolina expends less money per capita in the education of its Negro population than in the education of its white population. The report of the Superintendent of Education of South Carolina shows that it has cost $4.23 per capita to educate the white children of the state and only $1.35 per capita to educate the colored children.
When the present Constitution of South Carolina was in process of construction, the Supreme Court of the United States had not passed upon the legality of the so-called educational provision of the Mississippi Constitution, and the possibility that it might in the near future declare all such enactments repugnant to the Constitution of the United States deterred the members of the South Carolina constitutional convention from going the full length of the Mississippi plan. Although they had assembled for no other purpose than to disfranchise the Negro, yet out of fear of the Fifteenth Amendment to the Federal Constitution, they failed to do all they purposed.
George L. Tillman, the brother of the present United States Senator from that state, spoke in the convention the following significant and pathetic words:
“Mr. President, we can all hope a great deal from the constitution we have adopted. It is not such an instrument as we would have made had we been a free people. We are not a free people; we have not been since the war. I fear it will be some time before we can call ourselves free. I have had that fact very painfully impressed upon me for several years. If we were free, instead of having Negro suffrage we would have Negro slavery; instead of having the United States Government we would have the Confederate States Government; instead of paying $300,000 pension tribute we would be receiving it.”[12]
The Constitution of Louisiana, in its attempt to disfranchise the Negro and enfranchise, so to speak, every other class of men, the ignorant scum of Europe, as well as the intelligent and illiterate native born whites, outdoes both Mississippi and South Carolina. It adopts practically the same educational and property qualifications as are contained in the Mississippi and South Carolina instruments. The fifth section of it furnishes a true index to the spirit which is behind all of these disfranchising enactments. With vindictive memory, the framers of the Louisiana Constitution qualified as electors all who were entitled to vote on January 1, 1867 or at any date prior thereto as well as the sons and grandsons of such persons, whether or not they possess intelligence or property. Herein they display the same spirit which refused to accord to the Negro the right to vote previous to 1867.
What has been the attitude of the Courts towards these enactments which in the interest of oligarchy have set aside republican governments in the South and nullified the Constitution of the United States?
Naturally, the state courts have upheld them. The most remarkble judicial utterance since the famous Dred Scott decision is that of the supreme court of Mississippi in the case of Ratliff vs. Beale, predicated upon the constitution of Mississippi respecting the elective franchise. The Court said:
“Within the field of permissible action, under the limitations imposed by the Federal Constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the Negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament, and character, which clearly distinguished it as a race from that of the whites—a patient, docile people, careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the Federal Constitution from discriminating against the Negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone.”[13]
Thus a court created by this new constitution of Mississippi declares that it, in spite of the Fifteenth Amendment, discriminates against the Negro race “by reason of its previous condition of servitude and dependence,” and at the same time upholds that instrument.
The constitutionality of these disfranchising enactments has not been made a direct issue in the Supreme Court of the United States. The case of Williams vs. State of Mississippi[14], the decision of which is commonly supposed to have sustained their constitutionality, only brought the question up collaterally without proper allegations or sufficient proof. From an intimation made by the Court in this case, it is not improbable that when a direct issue upon their constitutionality is properly presented, it may render a decision consonant with that which it rendered in the case of Yick Wo vs. Hopkins, wherein the Court said:
“Though the law in itself be fair on its face and impartial in appearance, yet, if it be applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”[15]
There are other grounds for the belief that the Federal Supreme Court will refuse to sustain these instruments of disfranchisement, even though it has not of recent years acted in a manner to inspire faith.
These enactments have never received the approval of the people of the states. Of a total of 235,604 male citizens of voting age in South Carolina in 1890, more than 102,000 of whom were white men, only 60,925 participated in the election of November 6, 1894, at which the members of the constitutional convention were elected. Of the number thus voting only 31,402 were counted in favor of holding the convention. Thus one-seventh of the citizens called a convention and enacted a constitution which disfranchised more than one hundred thousand electors. The constitutions of Mississippi and Louisiana were adopted in the same way.
These so called constitutions, besides being repugnant to the spirit and purpose of the Fifteenth Amendment are also violative of the acts of Congress restoring the rebellious states to the Union, which acts the Federal Supreme Court has on several occasions declared constitutional.[16]
Pursuant to the reconstruction legislation, these states adopted constitutions admitting the Negro to the ballot and then asked to be readmitted to representation in Congress. Congress, having approved of their constitutions, enacted that they be entitled to representation in Congress, “upon the following fundamental conditions: That the constitutions of neither of said states shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said states, who are entitled to vote by the constitution thereof herein recognized.”[17]
These states accepted these fundamental conditions and are consequently bound by them.[18]