USA > Mississippi > Mississippi : comprising sketches of towns, events, institutions, and persons, arranged in cyclopedic form Vol. I > Part 55
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"The insistence of the black county delegates for drastic restric- tions of suffrage, and the tenacity of the white counties against radical infringement upon inherited privileges and white manhood, were met to measure strength on patriotic grounds. . That an agreement under such stress was ever reached is conclusive * testimony to the constructive talent of the leadership of the con- vention and the honest and patriotic intent of its membership. The first step in its solution was a legislative apportion- ment creating a majority of white constituencies-the legal basis and bulwark of the design of white supremacy in a State with an
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overwhelming and a growing negro majority. That achievement would guarantee the law-making branch of government, and place the election of United States senators above legal or partisan im- peachment. .
. The end was obtained by increasing the leg- islature's representative branch thirteen members, with allotment of the increase to the white counties. The majority thus effected was added to by carving several legislative districts out of white sections of black counties. Opposition to the change in the ap- portionment was in a measure reconciled by more nearly allotting senators on the basis of population. Opposition was further ap- peased by the requirement, in another article of the constitution, of a three-fifths affirmative vote to pass any revenue bill." The executive department was guarded by the adoption of the novel "electoral plan," which was proposed to the convention in a suf- frage scheme introduced by Edward Mayes. "This arrangement gives to the white constituencies a reserve power of elective control of all the executive offices of the State. And with the appointment of the judges vested in the governor, the scheme for a State gov- ernment upon the foundation of white electorates was made lawful, complete and secure. The design of the legislative apportionment, with its electoral supplement, was to erect an impregnable barrier to any possible organization of the negro majority by extraneous force or internal faction, for political dominance." As for the re- strictions of suffrage, the delegates of the black counties generally favored an alternative educational or property qualification. Such a provision was adopted in the committee but voluntarily rescinded on account of the extreme opposition of the minority membership. In lieu of it the understanding clause was adopted, and suffrage was further restricted by an unusually long residence requirement, the payment of taxes, registration four months before election, and a stringent form of the Australian ballot. "What has proved the most effective instrumentality of negro disfranchisement is the $2 optional poll tax pre-requisite, which persons otherwise compe- tent as electors to qualify as electors may elect to pay or not ac- cording to their desire to qualify for exercise of the voting priv- ilege." (McNeilly.) (See Suffrage).
The franchise regulations of the constitution were based upon the report of the judiciary committee, W. P. Harris, chairman, made on the tenth day. This report set out that "the 14th amendment in terms recognizes the right of the State to determine who shall vote-by those clauses which reduce the representation, if any male citizen of the United States and of the State are excluded
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from the franchise as a class," clauses which are interpreted by contemporary history as giving the State the right to elect between giving the negro full franchise or submitting to a reduction of rep- resentation in Congress. "The 15th amendment has but one oper- ation, and was engrafted in the constitution for the single purpose of laying an inhibition on the State of discriminating against the colored man because of race or previous condition of servitude. The State has just as large discretion in regulating the franchise as it had before its adoption, with the single limitation that the regulations which it prescribes shall apply alike to both races." The opinions of the United States supreme court were cited (in U. S. vs. Reese and U. S. vs. Cruikshank), in support of this view. The reconstruction acts, amendments, etc., were to be regarded as re-investing the State with the republican form of government guaranteed by the constitution, and restoring the State to "a plane of absolute equality with other States in the Union." An opinion of the United States supreme court in 1857 (Withers vs. Buckley) in a case from Mississippi alleging a conflict of an act of legislature with the enabling act of Congress, 1817, was cited to indicate that "Congress could exact of the new State the surrender of no at- tribute inherent in her character as an independent sovereign State, or as indispensable to her equality with her sister States, necessarily implied or guaranteed by the very nature of the Federal compact." In conclusion the committee said "We are of the unalterable opin- ion that re-admission of these States into the Union fully and for- ever settled the status of the States thus re-admitted, and that the Congress thereby lost all control or jurisdiction over this matter, and the States thus re-admitted into the Union became at once ipso facto under the Constitution re-invested with all the sovereign powers possessed by any and all the States ;" that is to say, the act of Congress re-admitting Mississippi into the Union, in 1870, lim- iting the right of the State to impose certain restrictions upon the right of franchise and otherwise prohibiting the State from chang- ing the constitution of 1869, was of no effect, so far as it made the State unequal with other States in self-government.
After a long discussion in the Franchise committee that com- mittee reported the article, which was adopted after debate in com- mittee of the whole, with the changes that the poll tax was re- duced from $3 to $2, and the postponement of the operation of the educational and understanding clauses was shortened from Jan. 1, 1896, to Jan. 1, 1892. The adoption of any provision that should restrict the franchise of white men was vigorously opposed by the
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minority of the convention. There was also strong opposition to the apportionment of legislators, which magnified (in general) the eastern and minified the representation of the river counties, in which was the heavy black population. The Australian system of ballot was immediately established and until 1896, by ordinance.
"The question was considered by the Convention whether the Federal representation of the State would be affected by placing qualifications upon the suffrage, but no action was taken on the question, nor was there any expression of opinion by the Conven- tion on the subject. . . . The general opinion among the mem- bers was that the qualifications of the suffrage and the permanent establishment of the State government upon the basis of an intel- ligent electoral body, was of higher consideration and of more pro- found concern to the people of Mississippi than any question af -- fecting the Federal representation of the State in congress and the electoral college." (Johnston).
The question of submission of the constitution to the people for ratification was referred to the judiciary committee, Wiley P. Harris, chairman, which reported that the proposition that such submission and ratification is necessary for the validity of a consti- tution "has no support in any principle of constitutional law, and is merely a political theory or doctrine which has in some of the States acquired authority from usage. The doctrine has never prevailed in this State, and has here, no sanction from usage," the constitution of 1869 being the only instance. Furthermore, the legislative act of 1890 defined the functions of the convention to be "to revise and amend the present State constitution or enact a new constitution," and declined, on a direct vote, to require sub- mission of the constitution to the people.
The constitution was finally adopted by a vote of 104 yeas to 8 nays, November 1, 1890, the 72d day of the session. The follow- ing ordinances were also adopted. Adopting the Australian system of ballot ; Extending the terms of State officers to the first Monday in January, 1896, and providing for an election in November, 1891, for railroad commissioners, members of the legislature and district and county officers, whose terms should expire on the first Monday in January, 1896; making appropriation for the expenses of the convention ; authorizing the borrowing of $50,000 for the same purpose; requiring the appointment of five commissioners to in- spect land suitable for a penitentiary farm : requiring the legislature to provide for the election of a land commissioner in 1895, for a term of four years; disclaiming interest in swamp lands erron-
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eously located ; authorizing issue of $500,000 bonds by the Missis- sippi levee district commissioners; providing for representation of Pearl county in the legislature and assigning it to a congressional district ; exempting permanent factories thereafter established from taxation for the period of ten years.
The constitution was signed by all the delegates present except Gen. W. T. Martin, Frank Burkit and John E. Gore. A. G. Webb was absent ; N. D. Guerry died before the close of the session.
In the closing address President Calhoun said: "Our mission here has been accomplished as best it could be upon adjustment of the various opinions and interests of the different sections of Mississippi. Restricted by the Federal constitution, we have tried to secure a more enlightened elective franchise without race dis- crimination or injustice. . . Political partisanship has natur- ally prevented an impartial view of our situation. This we cannot avoid. We can only say to our sister States that, doing the best we can, we sit patiently under the flag and await events. To that flag we are true because we have aided in garlanding it with that glory which hangs about its folds. To the Union we are true be- cause the cement of its folds is the blood of our ancestors. It is a Union of strength and should be a Union of love to all its States and sections. Aside from the suffrage, gentlemen, you have perfected a judiciary system the best I know where there prevails a dual system of law and equity procedure. The limita- tions you have placed on legislative power in reference to local measures and other matters will soon, of themselves, largely over- pay the cost of this constitutional convention, and will enforce a wiser and juster exercise of that power, and thus contribute great- ly to the welfare and happiness of the masses of our people. Your article on corporations has emancipated the people from the thral- dom of combined capital incorporated by and under the sanction of the State. You have made the creature subject to its creator. Your article on education reflects the generosity for which our State is justly famed, and if erroneous is along the lines of noble and magnanimous endeavors. If the pockets of our impoverished people can bear the draft, you are right, and they will never com- plain. Viewing the instrument in all its parts and as a whole, I do not hesitate to declare the opinion that there is nowhere a bet- ter constitution than the one you now establish." (Journal of Con- vention ; "Suffrage and Reconstruction" by Frank Johnston, M. H. S. Publ. VI, 141, "Convention of 1890" by J. S. Neilly, ibid, 129).
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Constitution of 1817. The preamble is, "We, the representatives of the people inhabiting the western part of the Mississippi terri- tory, [reciting the bounds, and the enabling act of Congress, (q. v.) ] .
. in order to secure to the citizens thereof the rights of life, liberty and property; do ordain and establish the following constitution and form of government, and do mutually agree with each other to form ourselves into a free and independent State, by the name of the "State of Mississippi."
Article I. Declaration of Rights.
That the general great and essential principles of liberty and free government may be recognized and established-We declare
Sec. 1. That all freemen when they form a social compact, are equal in rights ; and that no man or set of men, are entitled to ex- clusive, separate public emoluments or privileges, from the com- munity, but in consideration of public services.
Sec. 2. That all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit ; and therefore they have at all times an unalienable and indefeasible right to alter or abolish their form of government, in such manner as they may think expedient.
Sec. 3. . The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all per- sons in this State: Provided, that the right hereby declared and established shall not be so construed as to excuse acts of licen- tiousness, or justify practices inconsistent with the peace and safety of this State.
Sec. 4. No preference shall ever be given by law to any religious sect, or mode of worship.
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Sec. 5. That no person shall be molested for his opinions on any subject whatever, nor suffer any civil or political incapacity, or ac- quire any civil or political advantage, in consequence of such opin- ions, except in cases provided for in this Constitution.
Sec. 6. Every citizen may freely speak, write, or publish, his sentiments on all subjects, being responsible for the abuse of that liberty.
Sec. 7. No law shall ever be passed to curtail or restrain the liberty of speech, or of the press.
Sec. 8. In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts under the direction of the court.
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Sec. 9. That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches ; and that no warrant to search any place, or to seize any person or things, shall issue without describing them, as nearly as may be, nor without probable cause supported by oath or affirmation.
Sec. 10. That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor ; and in all prosecutions by indictment or information, a speedy public trial by an impartial jury of the county ; that he cannot be compelled to give evidence against himself; nor can be deprived of his life, liberty, or property but by due course of law.
Sec. 11. No person shall be accused, arrested, or detained, ex- cept in cases ascertained by law, and according to the form, which the same has prescribed ; and no person shall be punished but in virtue of a law established and promulgated prior to the offense, and legally applied.
Sec. 12. That no person shall for any indictable offense be pro- ceeded 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.
Sec. 13. No person shall for the same offense, be twice put in jeopardy of life or limb; nor shall any person's property be taken or applied to public use without the consent of his representatives and without just compensation being made therefor.
Sec. 14. That all courts shall be open, and every person, for injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice adminis- tered without sale, denial or delay.
Sec. 15. That no power of suspending laws shall be exercised except by the legislature or its authority.
Sec. 16. That excessive bail shall not be required, nor excessive fees imposed, nor cruel punishment inflicted.
Sec. 17. That all prisoners shall, before conviction, be bailable by sufficient securities, except for capital offenses, where the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless, when in case of rebellion or invasion, public safety may require it.
Sec. 18. That the person of a debtor, where there is not strong presumption of fraud, shall not be detained in prison, after deliver-
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ing up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.
Sec. 19. That no ex post facto law, nor law impairing the obli- gation of a contract, shall be made.
Sec. 20. That no person shall be attainted of treason or felony by the legislature.
Sec. 21. That the estates of suicides shall descend or vest as in cases of natural death ; and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof.
Sec. 22. That the citizens have a right, in a peaceable manner, to assemble together for their common good, and to apply to those vested with the powers of government, for redress or grievances, or other proper purposes, by petition, address or remonstrance.
Sec. 23. Every citizen has a right to bear arms in defense of himself and of the State.
Sec. 24. No standing army shall be kept up without the con- sent of the legislature; and the military shall, in all cases, and at all times, be in a strict subordination to the civil power.
Sec. 25. That no soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war but in a manner to be prescribed by law.
Sec. 26. That no hereditary emoluments, privileges, or honors shall ever be granted or conferred in this State.
Sec. 27. No citizen of this State shall be exiled, or prevented from emigrating, under any pretense whatever.
Sec. 28. The right of trial by jury shall remain inviolate.
Sec. 29. No person shall be debarred from prosecuting or de- fending any civil cause, for or against him or herself, before any tribunal in this State, by him or herself, or counsel or both.
Conclusion.
And to guard against transgressions of the high powers herein delegated, We Declare, That every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate ; and that all laws contrary thereto, or to the following provisions, shall be void.
(For provisions on various subjects, see same.)
Constitution of 1832. This instrument was signed Friday morn- ing, Oct. 26, 1832. (See Const. Convention.) The legislature elec- ted under it in December met in January, 1833, and provided for an election of State and county officers, under the constitution, in May, 1833.
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The changes in the bill of rights, from the constitution of 1817, (q. v.), were-in cases of libel, "if it shall appear that to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted" (See Poindexter) ; "no conviction for any offense shall work cor- ruption of blood or forfeiture of estate;" "no property qualification for eligibility to office, or for the right of suffrage, shall ever be required by law in this State;" "no person shall ever be appointed or elected to any office in this State for life or during good be- havior, but the tenure of all offices shall be for some limited period of time, if the person appointed or elected thereto shall so long behave well."
(For the particular regulations on various topics, see the same.)
A striking peculiarity of the instrument is that it has no pre- amble ; merely the title, "Constitution of the State of Mississippi." The reason may be found in the difference of opinion regarding the doctrine of State sovereignty, just then strenuously asserted.
The greatest change wrought by the constitution at its adoption was that all officers should thereafter be elected by the people. The officers provided for, to be thus chosen by the voters of the State, were governor, secretary of state, treasurer, auditor, attor- ney-general, chancellor; by the three high court districts, judges of the high court; by the judicial circuits, circuit judges, clerks, and district attorneys; by the counties, probate judges, clerks of court, county board of police, justices, constables, sheriff, coroner, treasurer, surveyor and ranger.
The high court retained the power of appointing its own clerk, and this was the only exception. But as the office of lieutenant- governor was abolished, it was made possible for the senate to choose the acting governor, as was done directly in 1835. In the militia the governor could appoint only staff officers and the of- ficers of volunteer companies. Generals were elected at the polls. The election of judges by the people was an expression of confi- dence in democracy theretofore unknown in the United States, save in the early colonial period of Connecticut.
According to the decisions of the high court of Mississippi this constitution absolutely prohibited the importation of negro slaves as merchandise into Mississippi, from any other State. The United States supreme court declared this clause of the State constitution was not effective without an act of legislature. In fact, the con- stitutional prohibition was practically ignored.
A meeting in Hinds county, May 27, 1837, attended by the gov-
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ernor and promoted by Henry S. Foote, called for a State conven- tion to revise the constitution. In the legislature of January, 1838, there was a determined effort in the same direction, led by Thomas Armat, representative of Natchez. This caused intense excitement in Jackson, the citizens fearing a change of capital. A test vote showed that the Armat bill had the support of two-thirds of the members.
An amendment to the constitution repealing the clause on the introduction of slaves as merchandise was submitted to the people in 1833, but was not adopted. A proposed amendment to give cir- cuit courts equity jurisprudence failed in 1839.
Six amendments were adopted before 1860: 1, Giving the legis- lature power to regulate or prohibit the introduction of slaves into the State, adopted 1844-46; 2, Regarding county boards of police, adopted 1850-52; 3, Abolishing the superior court of chancery, adopted 1854-56; 4, Extending terms of office to January, 1858, adopted 1854-56; 5, Changing the general elections to the first Monday of October, session of legislature to first Monday of No- vember, biennially, and further regulating terms of office; 6, Abro- gating the preceding, so far as it related to terms of legislators. The result was very confusing. (See McRae Adm.)
Constitution of 1869. (See Const. Conv. of 1868, Reconstruc- tion, Humphreys' Adm., Ames' Mil. Adm.) The constitutional convention was ordered by popular vote, and the constitution it framed was adopted by popular vote, November 30-December 1, 1869, with certain objectionable features excluded, after it had once been rejected as a whole. The bill of rights contains features indicative of the change resulting from the war, as compared with the constitution of 1832, which it replaced. The old instrument, while not directly defining citizenship, had required citizenship in the United States, and residence in the State, as qualification of suffrage and eligibility to office. The governor, it was required in 1832, "shall have been a citizen of the United States for 20 years and shall have resided in this State at least five years." In 1861 this had been amended to read, "shall have been a citizen of some one of the States composing the Confederate States of Amer- ica," etc.
The constitution of 1869 provided, "That all persons resident in this State, citizens of the United States, are hereby de- clared citizens of the State of Mississippi." "No property qualification shall ever be required of any person to become a juror," was one extremely revolutionary feature.
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"No property qualification for eligibility to office," was not new. It was one of the revolutionary principles in 1832. But it was added: "No property or educational qualification shall ever be required for any person to become an elector." This was not to be subject to amendment before 1885. "The rights of married women shall be protected by law, in property owned previous to marriage; and also, in all property acquired in good faith, by pur- chase, gift, devise or bequest, after marriage."
"There shall be neither slavery nor involuntaary servitude in this State, otherwise than in the punishment of crime, whereof the party shall have been duly convicted," was the clause on that subject. On State sovereignty: "The right to withdraw from the Federal union, on account of any real or supposed grievances, shall never be assumed by this State, nor shall any law be passed in derogation of the paramount allegiance of the citizens of this State to the government of the United States." "Distinction among the citi- zens," in the distribution of public funds to charitable or other institutions, was prohibited. "The right of all citizens to travel upon public conveyances shall not be infringed upon, nor in any manner abridged in this State."
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