USA > Mississippi > Biographical and historical memoirs of Mississippi, embracing an authentic and comprehensive account of the chief events in the history of the state and a record of the lives of many of the most worthy and illustrious families and individuals, Vol. II > Part 3
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99 | Part 100 | Part 101 | Part 102 | Part 103 | Part 104 | Part 105 | Part 106 | Part 107 | Part 108 | Part 109 | Part 110 | Part 111 | Part 112 | Part 113 | Part 114 | Part 115 | Part 116 | Part 117 | Part 118 | Part 119 | Part 120 | Part 121 | Part 122 | Part 123 | Part 124 | Part 125 | Part 126 | Part 127 | Part 128 | Part 129 | Part 130 | Part 131 | Part 132 | Part 133 | Part 134 | Part 135 | Part 136 | Part 137 | Part 138 | Part 139 | Part 140 | Part 141 | Part 142 | Part 143 | Part 144 | Part 145 | Part 146 | Part 147 | Part 148 | Part 149 | Part 150 | Part 151 | Part 152 | Part 153 | Part 154 | Part 155 | Part 156 | Part 157 | Part 158 | Part 159 | Part 160 | Part 161 | Part 162 | Part 163 | Part 164 | Part 165 | Part 166 | Part 167 | Part 168 | Part 169 | Part 170 | Part 171 | Part 172 | Part 173 | Part 174
On the 13th of June President Johnson issued a proclamation, in which, declaring that the Rebellion had, in its revolutionary progress, deprived the people of the state of all civil government, he appointed the Hon. William L. Sharkey to be provisional governor of the state, defining some of his powers and duties.
Governor Sharkey's first act was the issuance of a proclamation, dated July 1, 1865, by which he appointed in every county the judges and clerks of probate courts, boards of police, justices of the peace and all other county officers. No provision was made for the circuit and chancery courts. Two days later he issued an order that the "act in regard to the action of replevin, and the amendments thereto passed by the legislature of Mississippi since the 9th day of January, 1861, be and the same is hereby declared to be in full force from this date." This act was one approved December 3, 1863, making provision for the speedy recovery of
24
BIOGRAPHICAL AND HISTORICAL
personal property wrongfully taken or detained, by a summary replevin before two justices of the peace. This was the only judicature created by the governor for the assertion of legal rights. All other rights of that character were left, for the time being, wholly without redress.
On July 12 was established a system of courts unknown to the constitution either of the state or of the United States. It was created by commissions, of which the material parts are as follows: "I, W. L. Sharkey, provisional governor of the state of Mississippi, do hereby appoint the said (George T. Swann) to the office of special judge, with equity jurisdic- tion in all contracts for cotton or other personal property in this state, with power to proceed in a summary way on petition to enforce specific performance or rescind contracts on notice to parties." The judge was empowered to issue process, to punish for contempt, and to appoint a clerk; and it was made the duty of sheriffs to execute this process and enforce its decrees. On the 25th of the month a supplementary commission was issued to the effect that "in decreeing specific performance of contracts in reference to cotton, or other property, he (Swann, or other judge) has power to make his decrees in the alternative for the cotton or other property, or for its value, if the property itself can not be had." These courts, specially organized for the sole purpose of enforcing or rescinding contracts for personal property, left all other equity jurisdiction unprovided for. They completed, with those already mentioned, the system of jurisprudence which the provisional governor thought proper to put in opera- tion during his administration.
In the case of Scott vs. Billgerry, 40 Miss., 119, it was objected to the special courts described last above that the governor had no power to create such tribunals, and that their actions were coram non judice and void; but our supreme court decided that we were a conquered territory, and in that respect, as in others, subject to the power of the conquerer, and that the president might delegate the authority. The court, however, said: "The governor was a Federal officer, appointed to administer the Federal rule over the state, and the war-making power of that government was the source of all his authority." This tribunal, as created by the provisional governor, was not a state, but a Federal court, deriving its existence and all its powers from the Federal government.
In July also, Governor Sharkey, by proclamation, called a constitutional convention to meet in Jackson on August 14, to be composed of delegates who were loyal to the United States, for the purpose of "altering or amending the constitution," so as to enable the state to "resume its place in the Union." That body (the fourth in the state's history) met accordingly. It consisted of seventy whigs and twenty-eight democrats. J. Shall Yer- ger was elected president. Its membership included James T. Harrison, of Lowndes; David W. Hurst, of Amite; James S. Hamm, of Kemper; Locke E. Houston, of Monroe; George L. Potter, William Yerger and Amos B. Johnston, of Hinds; Hugh A. Barr, of Lafayette; James S. Bailey, of Tallahatchie; Thomas A. Marshall, of Warren; Will T. Martin, of Adams; Ephraim G. Peyton, of Copiah; John W. C. Watson, of Marshall; Robert A. Hill, of Tisho- mingo; Hampton L. Jarnagin, of Noxubee; Robert S. Hudson, of Yazoo, etc.
The convention did not frame a new constitution, but confined itself strictly to the pur- pose for which it was called-alteration and amendment, and the undoing of the work of the convention of 1861. The ordinance of secession, and all others intended to make it effectual, were annulled. Slavery was abolished. All legislative enactments, and all official acts of officers, not in conflict with the constitution and laws of the United States, or the constitution of the state as it was on January 1, 1861, were validated, with a few minor exceptions, as also were the proceedings of the courts, and all marriages celebrated, since the secession.
The provisions in regard to the judiciary were these:
- 25
MEMOIRS OF MISSISSIPPI.
The special courts of equity theretofore, and thereafter to be, established by the provis- ional governor (it seems that none were in fact afterward established) were recognized, and provision made for appeals to be taken from their judgments to the high court; but it was provided further that when the courts known to the constitution and laws of this state should be established, such special courts should be no further recognized than to allow them to conclude the cases then pending.
The twelfth section of the declaration of rights in the constitution of 1832 ran thus: " No person shall, for an indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia when in actual service, or by leave of the court for misdemeanor in office." The convention added the proviso, which has continued in substance to this day, "That the legislature, in cases of petit larceny, assault, assault and battery, affray, riot, unlawful assembly, drunkenness, vagrancy, and other misde- meanors of like character, may dispense with an inquest of a grand jury, and may authorize prosecutions before justices of the peace, or such other inferior court or courts as may be established by the legislature, and the proceedings in such case shall be regulated by law." This proviso has been considered to apply to all offenses below felonies, and to empower the legislature to dispense in such cases with any trial by jury.
Section 18 of article IV was extended so as to confer on the probate courts jurisdiction in minors' business. Theretofore its jurisdiction of this class had been limited to orphans' business, and it could not, for instance, appoint a guardian of the estate or person of a child whose father was living.
The legislature was empowered to direct sessions of the high court to be held at other places than Jackson; reserving to Jackson, however, the right to at least one session per annum.
A general election was ordered for the first Monday in October for representatives in congress and all state officers and members of the legislature; also, a special election at the same time for all county, district, judicial and ministerial officers, all terms to begin on the third Monday. The legislature was directed to convene on that day.
The validity of the convention itself was in doubt, and, of course, that doubt attached to all of its measures. In the case of Thomas vs. Taylor, 42 Miss., 651, this question was raised, but the supreme court waived it so far as the point of the excess of power by the presi- dent in organizing the provisional government was concerned, "inasmuch as the congress of the United States have recognized the existing government of the state as a provisional one."
The legislature met in October, as directed. They passed quite a number of statutes, in the effort to adjust the laws of the state to conditions so embarrassing and unprecedented. The most noteworthy feature of their work was that in reference to the newly emancipated freedmen, and which, meeting the disapproval of many of the Northern people, earned for the laws of that session the unfavorable appellation of the Black Code. Generally speaking, the statutes regulated the right of the negroes to the acquisition and enjoyment of property, their power to sue and be sued and to prefer criminal charges, their marriages, their contracts and the performance of them, the apprenticing of negro children, their carrying or owning arms, and their breaches of the peace. The legislature of 1867 repealed most of the objectionable features of the acts of 1865; thereby abolishing the distinctions made in respect to the power to acquire property, the criminal laws, the apprenticing of children, etc., but left them still incompetent as jurors.
The act of November 24, 1865, established county courts, to be held once a month in each county, by the probate judge, as president, with two associates chosen by the justices of the
26
BIOGRAPHICAL AND HISTORICAL
peace for the county from their own number. The criminal jurisdiction, concurrent with the courts already invested therewith, extended to all offenses less than felonies; and it was empowered to inflict, not only the punishments already prescribed by law, but also suspension by the thumbs. The civil jurisdiction, concurrent also, embraced all civil suits at law or equity, including ejectments, where the value in controversy did not exceed $250; except that replevins were without any limit of value; and except that the jurisdiction over forcible entries and unlawful detainers was exclusive. The writ of habeas corpus could be issued and heard in all cases of crimes within their jurisdiction. Crimes were prosecuted by information; and they were authorized to employ county attorneys. Special courts of the same powers, and going under the anomalous names of "the county court of (Grenada, for instance) " were established in the towns of Jackson, Okolona, Grenada, Meridian and Corinth. Appeals from the judgments of justices' and mayors' courts were to be taken to the county courts, instead of the circuit courts; and the decisions of such courts thereon were final. Suits and prosecu- tions originating in the county courts might be appealed, under conditions, to the circuit courts.
An act of October 30, 1866, amended the foregoing as follows: The probate judges were made the sole judges of these courts, even for those of the towns; the county attorney was made elective; certain concurrent criminal jurisdiction in small offenses not previously cognizable by them was conferred on justices of the peace, and the terms were fixed at differ- ent intervals in different counties, ranging from one to six months.
In October, 1865, also, the election ordered by the convention took place. Judges A. H. Handy, William L. Harris and Henry T. Ellett were elected to the high court bench, and the first term of that tribunal since the war (a special one) was in January, 1866. Judge Handy was made chief justice. The circuit and other courts resumed work in November. In organ- izing the circuit court of De Soto county, on the 19th of February, 1866, Judge Trotter pref- aced his charge to the grand jury by the remark that "It is upward of four years, I believe, since a court was organized and holden in De Soto county."
In February, 1866, occurred an interesting conflict between the courts and an officer of the Freedman's bureau. The case of one Charles Pitard, a negro apprentice, was before the county court of Madison county, apparently on a charge against him of running away from his master. The master was charged with using him badly. The matter coming to the ears of Lieut .- Col. R. S. Donaldson, acting assistant commander of the bureau, he addressed to the probate judge a letter, enclosing an order of Lieutenant-General Grant, then recently made, which gave to the military authorities the power to interfere for the protection of freedmen of all ages in cases of prosecutions for offenses and punishments where they were not treated in equal manner and degree with the whites. Besides the inclosure of this order, Colonel Donaldson undertook to instruct the judge as to what he should do in the premises. This communication was referred to Governor Humphreys, who sent it to the major-general com- manding, with a letter in which he pointed out the fact that, so far as the differences in the laws of apprenticeship were concerned, the advantages were with the black children. He concluded: "Why the legislature has discriminated thus in favor of the freedman is not for the executive to inquire, but to avoid collision between the military and civil authorities, it is important for the civil officers to know, with certainty, whether these laws are to be nullified." The matter ended with a letter from Colonel Thomas, the assistant commander, to Lieutenant- Colonel Donaldson, in which these passages occur: " Nothing but the most convincing proof that the child was inhumanly treated should have caused you to take any step for his release, and then, only after the refusal of the judge of probate to release him on the presentation of the
DE SOTO
Riber
MARSHALL
Holly Springs
TUNICA
TATE
CHICKASAW
+ CESSION
UNION
River
TOF
1832.
KEE ITAWAMBA
PANOLA
COAHOMA
PONTOTOC
QUITMAN
Rire
13
YALO BUSHA
ALLAHATCHIE
CALHOUN
CHICKASAW
THIR
o Crenada
BOLIVAR
GRE NADA
LE
CLA
Tibbec
Big
00
Creenville
WASHING
TON
NOXUBEE
HOLMES
13
13
SLEAKE
NESHOBA
KEMPER
8
MADISON
Ric
O
NEWTON
LAUDERDALE
Vicksburg 6*
Jackson.
A
B HINDS
N
A
31/3/2
CLARKE
SMITH JASPER
SIMPSON
JEFFER-
SON
3
COVINGTON
WAYNE
LAWRENCE
JONES
11
LINCOLN
ADAMS
Rive FRANKLIN
FIRST
CHOCTAW } CESSION
Rusi
M
A R
O
PERR
KKE
AND
7
COAST
ADDITION
(1812)
HANCOCK
JACKSON
HARRISON
Pearl
River
Scranton
Bay St. Louis
GULF Of MEXICO
1
INDIAN CESSION MAP
MISSISSIPPI.
BENTON
TIPPAH
11
TISHOMINGO
Tallahawhie
LA FAYETTE
RIVER
CESSION
Sept. 20th, 1816-
MELO
CHOCTA
-INOW GOMERY
Ring
R
OKTIBBEHA
CHOCTAW
MISSISSIPP
OR
SHARKEY
ISSAQUENA
CHOCTAW.
0
i3
CESSION
SCOTT
2
Meridian
NATCHEZCLANBORNE
COPIAH
Natchez !!
1801.
"OLD
(1805) Augusta
GREENE
AMITE
2CONFIRMED BY TREATY
DISTRICTS
Black
NEW PURCHASE
8
CESSION
WINSTO
CHICKASAW
WEBSTER
BinBlack
SECOND
FINAL
Schickasauf
9Corinth ALCORN
Coldwater
27
MEMOIRS OF MISSISSIPPI.
facts, as they were before you. It is the policy of the bureau to recognize the civil power of the state to the fullest extent, and infuse into the minds of the freedmen respect for the civil officers and government under which they must live at no distant day. It is not desired to nullify any state law, but to soften the application of those parts that may seem oppressive, and to interfere for the protection of freedmen only in individual cases, when local prejudices may cause the executive or judical officers of the state to deny the freedmen the rights which we are here to secure them. If you will examine the decision of Judge Campbell, attached to this paper, you will see that he is willing to give the law an interpretation that is liberal and just. It would be wrong for the bureau to assume any attitude that would injure this officer's influence. It is my opinion that the larger number of judges in the state would render the same decisions, and that only isolated cases occur where the law is interpreted oppressively. It is but treating them with due respect to make an effort to correct an evil through them, before any other method is adopted. You will see on reflection that it was not proper to write a letter of instructions to any officer of the civil government. You will therefore, in the case of Charles Pitard, write a letter to the judge of probate at Canton, Miss., saying that you withdraw your letter of instruction," etc. No fuller vindication of the impartiality of the judiciary during this trying period could be desired than is made in this "official " order of the Freedman's bureau.
The legislature met in called session on October 15, 1866, continuing, with two recesses, through February following.
An act was passed creating four high court districts, and requiring the court to be held in each district, for that district, once in each year, at the towns of Oxford, Jackson, Macon and Mississippi city. This act, however, the high court, in the case of M. & O. R. R. Co. vs. Mattan, 41 Miss., 692, decided to be unconstitutional in this: the business of the court held in a district was limited to the district, instead of embracing that of the entire state. So that the court continued, as before, to hold two terms in Jackson only.
"An act for the encouragement of agriculture," passed at this session, and approved February 18, 1867, is worthy of note. The country was in a greatly distressed condition, because of the destruction of values through the war and its ending. All of the ordinary bases of credit were destroyed or nearly so, and it became necessary to devise something to serve that purpose. The act provides that all debts for mouey, supplies, utensils, work-stock or other necessaries for the farm, shall constitute a prior lien on the crops not exempt, and ou the animals and implements used; that advances of money, clothing or provisions, made by any owner or lessee of lands to his laborer working for a share of the crops, should cou- stitute a lien on the share of such laborer until paid; that such liens shall be enforced by a bill in chancery, with sequestration; that mortgages might be given on crops to be produced within fifteen months; and that crops shall not be levied on or sold by any process until matured and gathered.
This statute is the origin of our present law on this important subject. It has been altered in many respects; but under various modifications it has been introduced into the codes of 1871 and 1880. The remedy has been much simplified, and is now by a summary seizure (on affidavit and warrant), much like the old distress at common law. If litigation arises, it is in the law courts, not in chancery.
In January the legislature unanimously refused to ratify the fourteenth amendment to the constitution of the United States, proposed by congress.
In March the congress passed, over the president's veto, the " Act for the more efficient government of the late insurrectionary states." It provided "that said rebel states shall be B
28
BIOGRAPHICAL AND HISTORICAL
divided into military districts, and made subject to the military authority of the United States;" that " it shall be the duty of each officer assigned (to the command of such dis- tricts) to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish or cause to be punished all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and. try offenders; or when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military committees or tribunals for that purpose, and all interference under color of state authority with the exercise of military authority under this act shall be null and void," etc. Mississippi was placed in the fourth district, and Gen. E. O. C. Ord made military commander. And thus, for a second time, the state was placed under a bayonet rule. In July another act of congress was passed over the president's veto, declaring that it was the true intent and meaning of the act of March that the district com- manders might remove all civil and military officers claiming under authority of the states, and fill their places by appointment; and that no such commander, nor any of his appointees, should be bound by any opinion of any civil officer of the United States.
Moved by this legislation and the action inaugurated thereupon, Judges Handy, Harris and Ellett, being the entire high court bench, resigned on the 1st of October. They were just in time. Had they held on but a little longer they might have shared with Governor Humphreys the honor of ejection at the points of bayonets. General Ames, having been made military governor of the state June 15, 1868, made root-and-branch work of it. Every- thing was removed. For months there were no incumbents of many of the offices; not even appointees. In many of the counties even a marriage license could not be obtained so late as the spring of 1869. The clergy subjected themselves to liabilities to fines, as for violation of the law, in celebrating the nuptials of their youth. Nevertheless the marriages went on.
Two cases illustrative of the practical working of the military tribunals are those of McCardle and of Yerger.
About the 1st of November, 1867, Col. William H. McCardle, a distinguished editor, of Vicksburg, was arrested by the military authorities, under charges of, first, disturbing the public peace; second, inciting to insurrection, disorder and violence; third, libel; fourth, and impeding reconstruction. He sued out a habeas corpus before the Federal court at Jackson, but was by that court remanded to the military authorities. He then prayed an appeal to the Supreme court of the United States. The right of appeal was placed on a certain act of con- gress, passed February 5, 1867. The supreme court of the United States itself, shall now tell the remainder of the discreditable story: "A motion to dismiss the appeal was made here and denied. The case was then argued at the bar, and the argument having been con- cluded on the 9th of March, 1868, was then taken under advisement by the court. While the cause was thus held, and before the court had time to consider the decision proper to be made, the repealing act under consideration (that of March 27, 1868), was introduced into congress. It was carried through both houses, sent to the president, returned with his objections, repassed by the constitutional majority in each house, and became a law on the 27th of March, within eighteen days after the conclusion of the argument. The effect of the act was to oust the court of its jurisdiction of the particular case then before it on appeal, and it is not to be doubted that such was the effect intended. Nor will it be questioned that legislation of this character is unusual and hardly to be justified except upon some imperious public exigency" (75. U. S., 85). It was perhaps well for the supreme court which had been subjected to an indignity so great to speak of it in measured terms, but there is, and should be, no real measure for the scorn meted to a congress which, in time of profound peace, could prostitute
29
MEMOIRS OF MISSISSIPPI.
the legislation of the United States in a conflict with the editor of a village newspaper, and that at the expense of the credit of the highest judicial tribunal of the nation.
Yerger's case arose later. On June 8, 1869, Col. E. N. Yerger slew Capt. J. G. Crane, mayor of Jackson by military appointment. A military commission was promptly organized to try him for murder. Objection was made to the competency of the mode of trial, but over- ruled. Pending the trial, Yerger sued out a habeas corpus in the Federal court at Jackson, under a special agreement made between his counsel and the attorney-general of the United States, in order that the important questions involved might be submitted for the consideration of the supreme court. He was remanded by the lower court to the military authorities, and took his appeal. At the December term, 1869, the case was argued specially on the point of juris- diction, and the court held that the jurisdiction existed notwithstanding the repeal of the act of 1867, for the reason that other acts still in force gave it the power to revise the decisions of the inferior courts of the United States in such cases.
But while this important question of whether there was or was not in the United States any judicial power which could, in time of peace, revise the work of a military court in the trial of citizens was being settled, the necessity for such remedies was passing away. The constitution of 1869 had been adopted, and the state restored to its rights.
When the judges of the high court resigned in October, 1867, there was no election of their successors by the people, but by the military commandant, Thomas G. Shackleford, of Madison county, Ephraim G. Peyton, of Copiah county, and E. Jeffords, of Issaquena county, were appointed. Judge Shackleford was made chief justice. The first term under this bench was a special term in April, 1868. In 1869 Judge Jeffords was succeeded by George F. Brown.
At the October term, 1869, the important case of Thomas vs. Taylor, 42 Miss., 651, was decided. It involved the question whether the state was liable for the payment of about $5,000,000 of treasury notes, commonly called "cotton money," issued during the war, under the act of December 19, 1861. The court held that while, of course, the war and the acts leading thereto, did not abolish the state considered either as territory or as people, yet still, the government in charge of the state was not legal; it was a usurping power, revolutionary, and never recognized by the United States; that while the convention of 1865 had ratified most of its legislative acts, it had not ratified those in furtherance of the rebellion, and the issuance of the notes in question was an act of that character. The notes were void.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.