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 4

Author: Goodspeed Brothers
Publication date: 1891
Publisher: Chicago, Goodspeed
Number of Pages: 1314

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 4

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In the year 1867 an election was held by the military authorities, in accordance with the reconstruction act cited above, and a supplementary act of March 23, on the question whether a constitutional convention should be held, and for the choice of delegates in case it should be ordered. At this election a large number of the best and most intelligent white citizens were excluded from voting, by test oaths, penalties, etc .; while the negroes, ignorant and marshaled by unscrupulous adventurers, were allowed to vote without any pretense of a statute or constitutional provision of the state conferring that privilege on them. The quali- fication for suffrage was dictated by congress. Such was the foundation of the constitution of 1869.

The "Black and Tan " convention met in Jackson, January 7, 1868. It comprised a number of able, patriotic and true men, but the majority of its members were ignorant blacks and reckless white plunderers. Their work was finished on the 15th of May, 1868, and was submitted to the people for ratification as directed by the act of congress. The election resulted in its rejection. The white people of the state were deeply incensed at the whole conduct of the convention, and were especially indignant at certain clauses in the proposed constitution

BIOGRAPHIICAL AND HISTORICAL

which disfranchised some of the best citizens. They therefore accomplished its defeat, although the election was held under military control, with troops stationed at as many as sixty different quarters in the state. The matter was brought to the attention of congress by a message of President Grant's on the 7th of April, 1869, and on the 10th a bill was approved, which authorized the president to resubmit the constitution to the electors, and, in his discretion, to submit separately any provision or provisions thereof. This was done. The election, held on the 30th of November and the 1st of December, resulted in the ratifi- cation of the constitution, except that section 5 of the article on franchise, and sections 4 to 13 inclusive of the schedule, were rejected. At this election state officers and members of congress were also voted for, by direction of the act of 10th of April.

It is to be observed that these reconstruction acts and the proceedings under them, introduced into our election system the practice of registering voters. It was incorporated into the constitution, and has been retained until now.

The most striking new features of this constitution are these: The office of lieutenant-gov- ernor is restored; imprisonment for debt is forbidden unqualifiedly; property qualifications are forbidden for any purpose; the right of secession is disclaimed forever; simple manhood qualification for suffrage, regardless of color, is established; a system of free schools is ordered to be established; the pledging of the state's credit in aid of any association, corpo- ration or person, is forbidden, as also is the taking of stock by the state in any corporation or association; the assumption or payment of any obligation contracted in aid of the Rebellion is prohibited, as also is the making of any demand against the United States for emancipa- tion of the slaves; the legislature is ordered to provide for the sale of delinquent tax lands, and the courts required to apply the same liberal principles in favor of such titles as in sales by execution. This extraordinary provision, generally understood as designed to enable the party in power to prosecute more successfully such white citizens as should be charged with political offenses, appears: "The legislature shall provide by law for the indictment and trial of persons charged with commission of any felony, in any county other than that in which the offense was committed, whenever, owing to prejudice, or any other cause, an impartial grand or petit jury can not be impaneled in the county in which the offense was committed." This provision, it is believed, was never put into practical operation.

Another interesting provision is section 22 of article XII: " All persons who have not been married, but are now living together cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, and their children shall be legitimate." This was intended to legalize the relations of negroes, who had married while they were slaves, and were therefore incapable of making any binding contract. In the case of Dickerson vs. Brown, 49 Miss., 357, and in two others it was held that under this provision, while even those who had been previously living in unlawful relations could become husband and wife without any nuptial ceremonies, yet still their consent and acceptance of the legal relation must appear. Not even a constitution can marry two together without their consent; and the mere continuance of their intimacy after the constitution became operative was not sufficient.

The constitutional provisions in regard to the judiciary were of great importance: First, the name of the high court of errors and appeals was changed to that of the supreme court, and the terms of the judges extended to nine years; second, the circuit courts were retained, and their minimum jurisdiction raised to $150; third, chancery courts, with a distinct judiciary, were established in each county, the chancellors being assignable by law to convenient circuits, and with full jurisdiction in all matters of equity, divorce, alimony, testaments, administrations, minors' business, idiocy, lunacy and dower; chancellors and

MEMOIRS OF MISSISSIPPI.

circuit judges to hold their offices four and six years, respectively; fourth, the civil juris- diction of justices of the peace was extended to cases of $150 value of principal; fifth, the name of the board of police was changed to that of board of supervisors; sixth, the judges and chancellors alike were to be appointed by the governor, by and with the concurrence of the senate.

The effect of these provisions, and of certain statutes shortly passed in furtherance of them, was to abolish the probate courts and transfer their jurisdiction to the chancery courts; also, to abolish the county courts, and distribute their jurisdiction between the Circuit and the magistrate's courts. Existing terms were ended, and new appointments were to be made.

The legislature was required to meet annually, and the first session began January 11, 1870. That body ratified the fourteenth and fifteenth amendments to the constitution of the United States, passed elaborate statutes on the subjects of public education (a full account of which and of its results will be found in the chapter on education), of apprentices, the supreme, circuit and chancery courts, justices of the peace, besides many others of impor- tance.

By act of June 9 it was ordered that three commissioners should be appointed to revise, digest and codify the laws, and to propose such amendments, alterations and new laws as they might deem advisable. Accordingly, J. A. P. Campbell, Amos R. Johnston and Amos Lovering, were appointed. The result of their labors revised, changed in many particulars and finally adopted by the next legislature, was the revised code of 1871, in sixty-six chapters.

Judge Johnston was a native of Tennessee. He came to Mississippi about 1830 and settled in Hinds county, living in Clinton, Raymond and Jackson at different times, as busi- ness called. Until 1839 he was an editor. In 1836 he was a member of the legislature. He was elected circuit clerk in 1839, and while in that office studied law. He served two terms, and then, in 1845, was elected probate judge. He was a member of the convention of 1851, in which he advocated acquiescence in the compromise measures, and the preservation of the Union. The fact that he was a Union man and a whig kept him out of political office, but indeed he seemed to care little for it. He was a member of the constitutional convention of 1865, and in 1875 of the state senate. He was a dignified, courteous and sympathetic gen- tleman; a studious, painstaking, thorough and successful lawyer. He died in 1879.

Under the direction of the new constitution, it became necessary to reorganize the judi- ciary. The supreme judges elected were Ephraim G. Peyton, Horatio F. Simrall and Jona- than Tarbell. They were installed about April, 1870, and their first term of court was the special May term of that year. Judge Peyton was chosen chief justice. This organization continued until May, 1876, when Judge Peyton resigned, and on the 1st Hamilton H. Chal- mers was appointed, while Judge Tarbell's term expired, and on the 10th J. A. P. Campbell succeeded. Judge Simrall was then made chief justice. Judge Simrall's term expired on the 9th of May, 1879, and he was followed by James Z. George, who was made chief justice. On the 19th of February, 1881, Judge George resigned, and was succeeded by Timothy E. Cooper, Judge Chalmers becoming chief justice, under the rule of the code of 1880, to the effect that he shall be chief justice whose term is to expire first. Under this rule Judge Campbell became chief justice on the 10th of May, 1882, and Judge Cooper on the 11th of May, 1885. On the 7th of January, 1885, James M. Arnold succeeded Judge Chalmers, deceased, becoming chief justice on May 11, 188S. On the 1st of October, 1889, Thomas H. Woods was appointed, vice Judge Arnold, resigned, and became chief justice. In May, 1891,

BIOGRAPHIICAL AND HISTORICAL

Judge Woods was reappointed, and Judge Campbell became chief justice for the second time. Cooper and Woods associates.

Judge Ellett began his public life in Claiborne county. He was there a successful lawyer. In November, 1846, he was elected to succeed Col. Jefferson Davis in the United States congress, and served until March, 1847. Declining reelection, he returned to the practice. He represented his county in the state senate continuously from 1854 to 1862. He was one of the commissioners who framed the code of 1857. When he resigned from the high court bench in 1867, as related, he went to Memphis, and there engaged in the practice of law until his death, which occurred in 1887. He was an enlightened, thoughtful and judicious legislator and judge, a dignified and deeply learned lawyer, a graceful and accom- plished gentleman, a pure, genial and kind man.

Charles C. Shackleford was probably a Kentuckian. At all events he took a law degree at Transylvania university, and then came to Mississippi. When appointed to the high court bench he was a citizen of Madison county. He served several years as circuit judge after his retirement from that position. He did most of the work of the court while on the bench, and his opinions are very respectable.

Ephraim G. Peyton was born in Kentucky, October 29, 1802. He came to Mississippi at seventeen, and was admitted to the bar in 1825. Settling in Copiah county, he was elected district attorney in 1839. He was reelected several times, but finally resigned in order to devote himself to a more settled practice. He was violently opposed to secession, and a life- long antagonist to the democratic party. After the war he affiliated with the republican party, and was appointed to the supreme bench. He died in Jackson, September 5, 1876. Judge Peyton was a profound and accomplished lawyer with extraordinary assiduity in his studies. He was, too, a sincere, honest, courageous, refined, cultured and kind man. His opinions as a judge are of the finest type.

Judge Chalmers was born probably in Halifax county, Va., about the year 1833. He graduated at the University of Mississippi in 1853, and engaged in the practice of law in De Soto county. He was devoted to his profession and quickly took high rank in it. Raised to the supreme bench in 1876, he was reappointed on the expiration of his term, and died in office, January 4, 1885. Judge Chalmers was unusually gifted. Accessible, genial and even jovial, in his bearing, he still had great personal dignity. His was the fortunate talent for winning warm friends. As a lawyer, he was industrious, dexterous, faithful and successful. His speech was fluent, attractive and sometimes eloquent. He was a learned, careful, inde- pendent and conscientious judge, and his opinions are exceedingly clear and satisfactory, sometimes a little ornate. His sudden death was generally felt to be a great loss to the state, and the reputation which he left is most enviable.

Judges Simrall, Campbell, George, Cooper, Arnold and Woods are still living, and for that reason no effort will be made to enumerate their individual characteristics. Let it suffice to say that their labors have illustrated the legal literature of the state, and have placed its supreme court on a plane as high as that occupied by any state court in the Union.

The attorneys-general of the state since the war have been these: Hon. Charles E. Hooker (since, for several terms, a member of congress) was elected in the fall of 1865 and held until October, 1868. There was then a period during which the office was vacant and the state was represented by different lawyers, usually by Jasper Myers, described in the reports as "acting attorney-general." In the election of 1869 Joshua S. Morris was chosen, and held the office until the year 1874, when he was succeeded by George E. Harris, an ex-member of congress. Thomas C. Catching, afterwards and now a member of congress, followed Gen-

MEMOIRS OF MISSISSIPPI.

eral Harris in 1878 and pending the October term 1877. In January, 1885, Thomas S. Ford was appointed, vice Catchings, resigned; and in 1886 he was succeeded by Hon. T. Marshall Miller, the present incumbent.

The circuit judges of the period between the war and the reconstruction were James M. Smiley, James F. Trotter, Alexander M. Clayton, William Cothran, John Watts, J. A. P. Campbell, J. Shall Yerger, W. H. Killpatrick, W. D. Bradford, H. W. Foote, John E. Mc- Nair, William M. Hancock, Thomas Shackleford, James S. Hamm and B. F. Trimble. The judges for the period between the inauguration of the reconstruction and the political revo- lution of 1876 were James M. Smiley, W. D. Bradford, William"M. Hancock, - Vauce, - Gifford, - Thigpen, B. B. Boone, Jonathan Tarbell, Green C. Chandler, A. Alderson, Uriah Millsaps, Robert Leachman, Jehu A. Orr, Orlando Davis, Charles C. Shackleford, Ephraim S. Fisher, Jason Niles, W. Cunningham and George F. Brown. Those who have served since the year 1875 are James M. Smiley, James A. Green, John W. C. Watson, Samuel Powell, B. F. Trimble, William Cothran, James M. Arnold, James S. Hamm, A. G. Mayers, Sol S. Calhoon, J. B. Chrisman, Upton M. Young, Ralph North, Charles H. Campbell, Joseph W. Buchanan, Winfield S. Featherston, A. T. Roane, Samuel H. Terral, Warren Cowan, W. M. Rogers, James H. Wynn, Locke E. Houston, George Winston, J. D. Gilland and James T. Fant.

The chancellors appointed by Governor Alcorn and Governor Ames under the act of 1870 were William G. Henderson, G. S. McMillan, Wesley Drane, Thomas Christian, Theodoric C. Lyon, O. H. Whitfield, Austin Pollard, Arthur E. Reynolds, De Witt Stearns, J. Fred Sim- mons, Dallas P. Coffey, J. J. Hooker, Samuel Young, Edward Hill, E. Stafford, E. W. Cabinniss, G. R. Gowen, D. N. Walker, J. W. Ellis, E. G. Peyton, Jr., W. A. Drennan, J. R. Galtney, R. Boyd, J. J. Dennis, C. A. Sullivan, William D. Frazee, C. C. Cullins, L. C. Abbott, J. N. Campbell, Peter P. Bailey, Thomas Walton, William Breck, H. R. Ware, R. B. Stone, E. H. Osgood and Hiram Cassidy, Jr. In 1876, when the democratic party came into power, the chancery districts were reduced from twenty-six to twelve, and from that time until now the chancellors have been Lafayette Haughton, A. B. Fly, Joseph C. Gray, Charles Clark, Robert W. Williamson, L. Brame, George Wood, T. B. Graham, E. G. Peyton, Jr., T. Y. Berry, Upton M. Young, Ralph North, J. Bright Morgan, W. G. Phelps, H. S. Van Eaton, Frank A. Critz, James G. Hall, Lauch McLaurin, Warren Cowan, Baxter McFarland, B. T. Kimbrough, Sylvanus Evans and W. R. Trigg. In 1888 the chancery districts were reduced to six, but increased to seven in 1890. In 1876 and 1878 the counties of War- ren and Adams, respectively, were made separate circuit-court and chancery districts, the offices of judge and chancellor being held by the same person. This arrangement was termi- nated in 1884, those counties and Sharkey being made a district of the usual kind.

In the spring of 1866 the Hon. Robert A. Hill, of Tishomingo county, was appointed district judge of the United States for Mississippi, and the court for north Mississippi removed from Pontotoc to Oxford. In the year 1882 an eastern division of the northern dis- trict was established, the court to be held at Aberdeen, and in 1887 a western division of the southern district, the court to be at Vicksburg, and in 1888 a southern division of the southern district was established, the court to be held at Mississippi city. In 1889 the northern dis- trict was incorporated into the fifth circuit. Theretofore it had been in none, the district court exercising circuit court powers.

The literature of the legal profession, other than statutes and codes, shall now engage the attention for a period.

The first series of reports issued after the war were those of Reuben O. Reynolds-the

BIOGRAPHIICAL AND HISTORICAL

40th to 42d Mississippi. They embrace all of the decisions made subsequent to the war and prior to the reorganization of 1870.

The reporter, Colouel Reynolds, was born in Morgan county, Ga., and reared in Monroe county, Miss. He took an A. B. at the University of Georgia, and a B. L. at the University of Virginia. Entered upon the practice in Aberdeen, in 1856. In the army he lost an arm and rose to be lieutenant-colonel of the Eleventh Mississippi. In 1875 he was elected to the state senate, and served in that capacity for twelve years. He died in 1887. Colonel Rey- nolds was an accomplished, gallant and chivalric soldier, an exact, painstaking and satisfactory reporter, a most disinterested, vigilant, able, untiring and patriotic legislator, an adroit, ingenious, thorough and brave lawyer. He was a man of great versatility. Quick-tempered and impulsive, yet self-controled and generous, his varied virtues were crowned by an unob- trusive but genuine piety. Altogether it would be difficult to find his superior in the combi- nation of graces which go to make a strong, honorable and attractive man.

His successor as reporter was Joshua S. Morris, the attorney-general. Coming into office in 1870, Judge Morris published six volumes-43d to 48th Miss .- the last terminating with the April term, 1873. The legislature of 1870 had ordered, by act approved July 18, 1870, a compilation of the criminal cases in all the volumes of Mississippi reports to date, anno- tated, to be called "Mississippi state cases." General Morris did this work, and the book issued in two volumes, not embraced in his regular series. General Morris was a lawyer, especially a criminal lawyer, of considerable ability. He died at Natchez in the year 1890.

He was succeeded as reporter in 1875 by Harris & Simrall, composed of George E. Harris, the attorney-general, and G. H. Simrall. They published four volumes-49th to 52d Miss .- the last ending in the midst of the October term, 1876.

Their successors were Joseph A. Brown and J. B. H. Hemingway, who published thir- teen volumes, 53d to 65th Miss .; the last terminating in the October term, 1888. This series is not a work of collaboration, strictly speaking. The reporters parceled out the work, except Vol. 53. Mr. Brown alone reported 54, 57 and 59; while 61 was reported almost entirely by J. Bowmar Harris, Esq., for him. The other volumes were reported by Mr. Hemingway alone.

The next reporters are the present incumbents, Messrs. L. Brame (the ex-chancellor) and Charlton H. Alexander. The gentlemen have published two volumes, 66th and 67th Miss.

In 1872 a digest of the Mississippi reports, from Walker to 44th Miss., inclusive, by James Z. George, Esq., in which, however, the title of limitation of estates was prepared by Judge Clayton, and that of criminal law by William R. Barksdale, Esq. This digest does not include the two chancery reports of Freeman and Smedes & Marshall. These two volumes seem to have been omitted from all digests since Smede's.

In 1881 Garnett Andrews, Esq., of Yazoo city, published a digest, embracing 45th to 56th Miss., and intended as a supplement to George's digest, aud in 1888 Daniel W. Heidel- berg, Esq., of Shubuta, Miss., published a digest, also intended as a supplement to George's, embracing from 45th to 64th Miss.

In 1883 Marvin E. Sullivan, Esq., of Water Valley, issued the Mississippi citations, being a table of all Mississippi cases which have ever been mentioned in the opinions of the high court and the supreme court of Mississippi, from the organization of the state, includ- ing all the chancery and law reports down to Vol. 59, inclusive. Quite a useful book for briefing, but not so useful as it would have been had it included the citations of cases from other states.

On the 27th of February, 1878, by an act of that' date, the legislature authorized the

MEMOIRS OF MISSISSIPPI.

Hon. J. A. P. Campbell to revise and codify all the laws of the state of a general nature, and to submit the same at their next regular meeting. This was done, and the new code was considered by the legislature, amended in some respects, and adopted on the 5th of March, to become operative (except where otherwise provided in itself) on the first of November follow- ing, and from that date it repealed all acts and parts of acts, the subjects whereof were revised, consolidated and reenacted therein, or were repugnant to its provisions.

This code is made more available by foot-notes citing the Mississippi cases in which the several statutes have been construed or applied. It is a very conservative revision. As the distinguished compiler says in the preface, "the main body of the existing statutes was pre- served, and no change was made merely for the sake of change. Where alteration was not deemed important, the existing law was preserved." The most striking changes were the abolition of the estates of dower and of tenancy by courtesy, of the rule in Shelley's case, and of the use of private seals.

During the period from 1880 to 1890 there was little of general interest in this branch of state history. But on the 12th of August, 1890, pursuant to the act of February 5 previous, a constitutional convention (the sixth in the state's history) met in the city of Jack- son. It elected Hon. Sol S. Calhoon president, and after a session of seventy-two days, adjourned on the 1st of November, after adopting, without submission to the people for rati- fication, the constitution of 1890. Some of the most noteworthy general features of this instrument are these:

Ability to read any section of the constitution, or to understand the same when read, or to give a reasonable interpretation thereof, and the payment of taxes, are made additional conditions to the right to vote. The regular sessions of the legislature are fixed at intervals of four years, with special sessions (also at four year intervals) between, and at the latter, nothing is to be considered except appropriation and revenue bills, and such other matters as may be acted on at an extraordinary session called by the governor. No appropriation-bill thereafter passed shall continue in force more than six months after the next regular meeting of the legislature. The legislature is directed to pass laws to accomplish a number of objects of general interest, such as, to regulate the acquisition and holding of lands in this state by non-resident aliens, or by corporations, etc. Quite a number of prohibitions is laid upon the legislature; e. g .: it is forbidden to pass special or local laws, for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of the state; or to pass special or local laws on any of twenty-one designated subjects (such as granting divorces, etc.), or to make donations of the public lands to individuals or incorporations. The governor is forbidden to exercise the par- doning power before conviction, and he is empowered to suspend from office any alleged defaulting state or county treasurer, or tax collector, pending the investigation of his accounts, and to make temporary appointments to fill the offices meanwhile. The governor, lieutenant- governor, auditor, treasurer, sheriffs and county treasurers, are all made ineligible as their own successors. All state executive officers are to be elected by votes of counties and repre- sentatives' districts, after the manner of the electoral college. but the electors themselves are dispensed with in this scheme. County officers, both executive and judicial, are to be selected in such manner as the legislature shall direct, but legislators are to be elected by the people; nor shall the legislature elect any other than its own officers, state librarian, United States senators, and presidential electors. The terms of all elective and county officers are fixed at four years. The leasing of convicts from the penitentiary is prohibited after January 1, 1895. Corporations shall be created only by general laws, and none granted a charter for private

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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 4

Author: Goodspeed Brothers Publication date: 1891 Publisher: Chicago, Goodspeed Number of Pages: 1314

Author: Goodspeed Brothers
Publication date: 1891
Publisher: Chicago, Goodspeed
Number of Pages: 1314