The new constitution made all judgeships elective and also provided for the election of a solicitor in each county. The result was seen in the number of incapable judges and illiterate solicitors. The probate judge of Madison was “a common jack-plane carpenter from Oregon,” and his sheriff could not write. Many of the judges had never studied law and had never practised. Public meetings were held to protest against incompetent judges and to demand their resignations. Governor Smith usually appointed better men, and not always those of his own party, to the places vacated by resignation, sale, or otherwise. Before the war the state judiciary had stood high in the estimation of the people, and judicial officers were forbidden by public opinion to take part in party politics. Under the Reconstruction government the judicial officials took an active part in political campaigns, every one of them, from Busteed and the supreme court to a county judge, making political speeches and holding office in the party organization. From a party point of view the scarcity of white Radicals made this necessary. Notaries public, who also had the powers of justices of the peace, were appointed by the governor. Their powers were great and indefinite, and in consequence they almost drove the justices out of activity. Some of them issued warrants running into all parts of the state, causing men to be brought forty to fifty miles to appear before them on trifling charges.

The Reconstruction judiciary generally held that a jury without a negro on it was not legal. In the white counties such juries were hard to form. Northern newspaper correspondents wrote of the ludicrous appearance of Busteed’s half negro jury struggling with intricate points of maritime law, insurance, constitutional questions, exchange, and the relative value of a Prussian guilder to a pound sterling. When they were bored they went to sleep. The negro jurors recognized their own incompetence and usually agreed to any verdict decided upon by the white jurors. Had the latter been respectable men, no harm would have been done, but usually they were not. A negro jury would not convict a member of the Union League—he had only to give the sign—nor a negro prosecuted by a white man or indicted by a jury; but many negroes prosecuted by their own race were convicted by black juries. For many years it was impossible to secure a respectable Federal jury on account of the test oath required, which excluded nearly all Confederates of ability. As an example of the working of a local court, the criminal court of Dallas may be taken. The jurisdiction extended to capital offences. Corbin, the judge, was an old Virginian who had never read law. He refused to allow one Roderick Thomas, colored, to be tried by a mixed jury, demanding a full negro jury. The prosecution was then dropped because all twelve negroes drawn were of bad character. Corbin then entered on the record that Thomas was “acquitted.” Thomas had stolen cotton, and the fact had been proven; but he soon became clerk of Corbin’s court and later took Corbin’s place as judge, with another negro for clerk. Nearly every Radical official in Dallas County was indicted for corruption in office by a Radical or mixed jury, but negro juries refused to convict them.[2103]

An elaborate militia system was provided for by the carpet-baggers, with General Dustin of Iowa, a carpet-bagger, as major-general. The strength of organization was to be in the black counties, but Governor Smith persistently refused to organize the negro militia. He was afraid of the effect on his slender white following, and he did not think that the negro ought to do anything but vote. He was also afraid of Democratic militia, afraid that it would overturn the hated state government. He tried to get several friendly white companies to organize, but failed, and during the rest of his term relied exclusively upon Federal troops. Even before the Reconstruction government was set going it was seen that the whites would be restless. Forcing the rejected constitution and the low-class state government upon the people against the will of the majority had a very bad effect. They recognized it as the government de facto only, and they so considered it all during the Reconstruction. Then the Ku Klux movement began, and north Alabama especially was disturbed for several years. Smith sometimes threatened to call out the militia, but never did so. However, he kept the Federal troops busy answering his calls. After the election of Grant the army was always at the service of the state officials, who used detachments as police, marshals, and posses. The government had not the respect of its own party, and had to be upheld by military force. It was a fixed custom to call in the military when the law was to be enforced—governor, congressmen, marshals, sheriff, judge, justice of peace, politicians, all calling for and obtaining troops. It was distasteful duty to the Federal officers and soldiers. Though the people knew that only the soldiers upheld the state government, yet they were not, as a rule, sorry to see the soldiers come in. The military rule was preferable to the civil rule, and acted as a check on Radical misgovernment. The whites were often sorry to see the soldiers leave, even though they were instruments of oppression. Wholesale arrests by the army were not as frequent during Smith’s administration as later.[2104]

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The state government was shaken to its foundations by the presidential campaign and election of 1868. The whites had waked up and gone to work in earnest. It was the first election in which the races voted against one another. Busteed, Strobach, and other carpet-baggers toured the North, predicting chains and slavery for the blacks and butchery for the “loyal” whites in case Seymour were elected. The Union League whipped the negroes into line. Brass bands lent enthusiasm to Radical parades. The negroes were afraid that they would “lose their rights” and be reënslaved, that their wives would have to work the roads and not be allowed to wear hoopskirts. The Radicals urged upon the Democrats the view that those who did not believe in negro suffrage could not take the voter’s oath. Many Democrats refused to register because of the oath. There were numbers who would not vote against Grant because they believed that he was the only possible check against Congress. Others felt that so far as Alabama was concerned the election was cut and dried for Grant. But nevertheless a majority of the whites determined to resist further Africanization in government. Their natural leaders were disfranchised, but a strong campaign was made. The hope was held out of overthrowing the irregular revolutionary state government and driving out the carpet-baggers in case Seymour became President. North Alabama declared that a vote for Grant was a vote against the whites and formed a boycott of all Radicals. The south Alabama leaders tried to secure a part of the negro vote, and urged that imprudent talk be avoided and that carpet-baggers and scalawags be let alone, and the negroes be treated kindly as being responsible for none of the evils. Orders purporting to be signed by General Grant were sent out among the negroes, bidding them to beware of the promises of the whites and directing them to vote for him. Some rascally whites made large sums of money by selling Grant badges to the blacks. They had been sent down for free distribution; but the negroes, ordered, as they believed, by the general, purchased his pictures at $2 each, or less. The carpet-baggers were afraid of losing the state. Some left and went home. Others wanted the legislature to choose electors. Still others wanted to have no election at all, preferring to let it go by default; but the higher military commanders, Terry and Grant, were sympathetic and troops were so distributed over the state as to bring out the negro vote. Army officers assisted at Radical political meetings, and the negro was informed by his advisers that General Grant had sent the troops to see that they voted properly. The result was that the state went for Grant by a safe majority.[2105]

During the administration of Smith the incompatibility of the elements of the Radical party began to show more clearly. The native whites began to desert as soon as the convention of 1867 showed that the negro vote would be controlled by the carpet-baggers. The genuine Unionist voters resented the leadership of renegade secessionists. The carpet-baggers demanded the lion’s share of the spoils and were angered because Smith vetoed some of their measures; the scalawags upheld him. The carpet-baggers felt that since they controlled the negro voters they were entitled to the greater consideration. Their manipulation of the Union League alarmed the native Radicals.

The negroes were becoming conscious of their power and were inclined to demand a larger share of the offices than the carpet-baggers wanted to give them. Some of the negroes were desirous of voting with the whites. Negro leaders were aspiring to judgeships, to the state Senate, to be postmasters, to go to Congress. Even now the party was held together only by the knowledge that it would be destroyed if divided.[2106]

In 1868 Governor Smith and other Radical leaders, convinced that they were permanently in power, secured the passage of a law providing for the gradual removal of disabilities imposed by state law. The same year a complete registration had been made for the purpose of excluding the leading whites. After disabilities were removed, so far as state action was concerned there was no advantage to Radicals in a registration of voters. On the other hand, it threatened to become a powerful aid to the Democrats, who began to attend the polls and demand that only registered voters be allowed to cast ballots, thus preventing repeating. Consequently, as a preparation for the first general election in the fall of 1870, the legislature passed a law forbidding the use of registration lists by any official at any election. No one was to be asked if he were registered. No one was to be required to show a registration certificate. The assertion of the would-be voter was to be taken as sufficient. And it was made a misdemeanor to challenge a voter, thus interfering with the freedom of elections. After this a negro might vote under any name he pleased as often as he pleased. This election system was in force until 1874, when the Democrats came into power.[2107]

To the Forty-first Congress in 1869 returned only one of the former carpet-bag delegation, C. W. Buckley. Two so-called Democrats were chosen, two scalawags, and a new carpet-bagger. P. M. Dox, one of the Democrats, was a northern man who had lived in the South before the war, who was neutral during the war; and after the war he posed as a “Unionist.” Congressional timber was scarce on account of the test oath and the Fourteenth Amendment, so Dox secured a nomination. His opponent was a negro, which helped him in north Alabama. The other Democrat, W. C. Sherrod, who was also from north Alabama, had served in the Confederate army. His opponent was J. J. Hinds, one of the most disliked of the carpet-baggers. Robert S. Heflin, one of the scalawags, was from that section where the Peace Society flourished during the war. At first a Confederate, in 1864 he deserted and went within the Federal lines. Charles Hays, the other scalawag, became the most notorious of the Reconstruction representatives in Congress. He was a cotton planter in one of the densest black districts and managed to stay in Congress for four years. He is chiefly remembered because of the Hays-Hawley correspondence in 1874. Alfred E. Buck of Maine had been an officer of negro troops. He served only one term and after defeat passed into the Federal service. He died as minister to Japan in 1902. This delegation was weaker in ability and in morals than the carpet-bag delegation to the Fortieth Congress.