Another citizen of Mobile, a magistrate, was haled before a Federal court, charged with having sentenced a negro to be whipped, contrary to the provisions of the “Civil Rights Bill.” The magistrate explained that there was nothing at all offensive about the whipping. He had not acted in his magisterial capacity, but had himself whipped the negro boy for lying, stealing, and neglect of duty while in his employ.[1043] The agent of the Bureau at Selma notified the mayor that the “chain gang system of working convicts on the streets had to be discontinued or he would be prosecuted for violation of the ‘Civil Rights Bill.’”[1044] Judge Hardy of Selma decided in a case brought before him that the “Civil Rights Bill” was unconstitutional. He declared it to be an attack on the independence of the judiciary.[1045]
Rejection of the Fourteenth Amendment
In the fall of 1866 the proposed Fourteenth Amendment was submitted to the legislature. There was no longer any belief that further yielding would do any good; the more the people gave the more was asked. State Senator E. A. Powell wrote to John W. Forney that the people would do nothing about the Fourteenth Amendment because they were convinced that any action would be useless. Condition after condition had been imposed and had been absolved; slavery had been abolished, secession acknowledged a failure, and the war debt repudiated by the convention; the legislature had ratified the Thirteenth Amendment, had secured the negro in all the rights of property and person; and after all the state was no nearer to restoration.[1046] This was the view of nearly all the newspapers of the state, and in this they represented popular opinion. They were intensely irritated by the fact that, although they had made so many concessions, still they were excluded from representation in Congress, and were heavily and unjustly taxed.[1047] Moreover, they were opposed to the amendment because it branded their best men as traitors.[1048] One newspaper, alone, advocated adoption of the amendment as the least of evils.[1049]
John Forsyth, in the Mobile Register, said: “It is one thing to be oppressed, wronged, and outraged by overwhelming force. It is quite another to submit to voluntary abasement” by adopting the Fourteenth Amendment. It should be rejected, he said, because it would disfranchise the very best of the respectable whites, the beloved leaders of the people. Judge Busteed, in a charge to the Federal grand jury, delivered a political harangue advocating the adoption of the Amendment. Many ultra “union” men in north Alabama opposed the Amendment for three reasons: (1) though it would disfranchise the leaders, the great mass of the white people would still be allowed to vote, especially those who had not held civil office during the war; (2) some of these “union” men had been ardent secessionists at the beginning and had thus compromised themselves, or had been elected to the legislature or to some “bomb-proof” office during the war—as “obstructionists,” they claimed—and the proposed amendment would disfranchise them along with the Confederate leaders; (3) this class as a rule disliked the negro and never wanted negro suffrage if it were possible to secure the overthrow of existing institutions without it. Two planters of the Black Belt were ready for negro suffrage to one “buckra.”[1050] Those men who considered themselves “unionists” wanted no negro suffrage, nor anything so weak as the Fourteenth Amendment; but desired some kind of a military régime in which the United States government should place them in permanent possession of the state administration and exclude all who were not like themselves. The test should be a political one, they said. It seems to be a fact that a few hundred such men with, at the most, five thousand followers expected to have the whole state administration under their direction for years. Yet it would have required a special law of exemption for each of them in order to protect them from the proscription which was to be visited upon the ex-Confederates. For these “unionists” had often betrayed both sides during the war. Their most patriotic duty had been “obstruction.”
By most persons the question of negro political rights was considered to belong to the state and was not a matter for the Federal government to regulate. “Loyalists” as well as “rebels” were afraid to leave negro affairs to the regulation of Congress. In his annual message to the legislature, in November, 1866, Governor Patton advised the legislature not to ratify the Fourteenth Amendment, on the ground that it could do no good and might do harm. It involved a creation of a penalty after the act. On this point, he said that it was an ex post facto law, and contrary to the whole spirit of modern civilization; that such a mode of dealing with citizens charged with offences against government belonged only to despotic tyrants; that it might accomplish revengeful purposes, but that was not the proper mode of administering justice; that adoption would vacate merely all offices in most of the unrepresented states—governors, judges, legislators, sheriffs, justices of peace, constables—and the state governments would be completely broken up and reduced to utter and hopeless anarchy; that the disabilities imposed by the test oath were seriously detrimental to the interests of the government; that ratification of the Amendment could not accomplish any good to the country and might bring upon it irretrievable disaster.[1051]
Under the circumstances, the legislature refused to consider the Amendment. But the governor during the next few weeks was induced by various considerations to recommend the ratification, and on December 7, 1866, he sent a special message stating that there was a purpose on the part of those who controlled the national legislation to enforce their own terms of restoration at all hazards; and that their measures would immeasurably augment the distress already existing and inaugurate endless confusion. The cardinal principle of restoration seemed to be, he said, favorable action on the Fourteenth Amendment. Upon principle he was opposed to it. Yet necessity must rule. So now he recommended reconsideration. If they should ratify and restoration should follow, they might trust to time and their representatives to mitigate its harshness. If they should ratify and admission should be delayed, it would serve as a warning to other states and thus prevent the necessary number for ratification.[1052]
The message created excitement in the legislature and the chances were favorable for ratification; but ex-Governor Parsons, who was in the North, advised against it. He thought the northern people would support the President in the matter. The legislature refused to ratify by a vote of 27 to 2 in the Senate, and 69 to 8 in the House.[1053] Potter of Cherokee gave notice that on January 15 he would move to reconsider the vote. Governor Patton, moreover, was convinced that Congress meant to carry out its plan of reconstruction, and that opposition might make matters worse. General Swayne kept a strong pressure upon him, assuring him that Congress would have its own way. During the Christmas holidays the governor made speeches in north Alabama in favor of ratifying the Amendment. Congress would require it, he said. On principle he opposed the measure, but it must come at last. “Look the situation squarely in the face,” he said; only 2000 or 3000 men (himself included) would be deprived of office, and to oppose Congress was to ruin the state, to territorialize it. There were men in Washington, he said, who were already working in order to be made provisional governor under the new régime.[1054] After the recess Patton sent a second message recommending that the Amendment be adopted, since it was the evident purpose of Congress to enforce their own terms.[1055] For a day or two it was considered, General Swayne and the governor using their influence with the members, and it seemed almost sure to be ratified. But Parsons, then in Montgomery, telegraphed (January 17, 1867) to the President that the legislature was reconsidering the Amendment. Johnson replied saying that no possible good could come of such action; that he did not believe the people of the country would sustain “any set of individuals” in attempts to change the whole character of the government, but that they would uphold those who stood by the Constitution; and that there should be no faltering on the part of those who were determined to sustain the coördinate departments of the government in accordance with its original design. For the third time the Amendment failed to pass.[1056] One of the last resolutions passed by the provisional legislature before it was abolished by the Reconstruction Acts was on February 1, 1867, in regard to memorializing Congress to establish a uniform system of bankruptcy. Relief was needed, they stated, “yet the promptings of self-respect forbid the propriety of further intruding our appeals upon a Congress which refuses to recognize the state of Alabama for any purpose other than that of taxation. It is a source of regret that Congress has assumed an attitude toward the state of Alabama totally incompatible with the mutual obligations of allegiance and protection.”[1057]
Political Conditions, 1865-1867; Formation of Parties
In the convention of 1865 two well-defined parties had appeared, though generally, at that time, for the sake of harmony they acted together. These parties grew farther and farther apart. One of them, consisting of most of the people, especially of the central and southern section of the state, supported the policy of the President. The other party was a motley opposition. In it were the few original “Union” men, the tories, and many more self-styled “union” men, who saw an opportunity for advancement for themselves if the present government were overthrown. There were others who thought that the old ruling class should now retire absolutely from public life and allow their former followers to take their places. There was a fair sprinkling of respectable men who were bitterly opposed to any party or policy that suited the former Democrats, and believing that Congress would not be too severe, they were willing to see three or four thousand of the leaders disfranchised in order to get the state back into the Union. They were willing also to become leaders themselves in the place of those disfranchised.