USA > North Carolina > History of North Carolina: North Carolina since 1860, Volume III > Part 26
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In the beginning of the campaign he found great suspicion of the section of the amendment limiting the operation of the grandfather clause to a short term of years and such effective use was made of this by the opposition that many democrats feared it would defeat the amendment and there was some agitation to have the legislature at its June meet- ing strike it out. Aycock was informed of the movement and at once opposed it, asserting that the party was pledged to submit the amendment as adopted. He declared that if a change was made, he would feel compelled to withdraw his
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candidacy. His courage and his leadership thus prevented a grave error.
During the campaign he made 110 speeches, travelled more than a thousand miles by carriage and 5,000 miles by rail, and addressed 100,000 people.
The chief agencies of the democrats in the various locali- ties were the white supremacy clubs which attracted a large membership. The Red Shirts were once more active, not often given to violence, but still entirely determined. As in 1898 they were occasionally rough, on a number of occasions they prevented republican speakers from appearing, and once or twice they attempted strong measures. In some quar- ters of the state, the costume was a badge of support of the amendment.
The lines were drawn sharply in the campaign and it became increasingly difficult for white men to face and answer the charge that opposition to the amendment stamped them as advocates of negro rule. The populists early began to divide on the question and there were not lacking republicans who openly championed the amendment as demanded by ne- cessity and, in addition, as the salvation of their party. Among these were Alexander McIver, A. W. Shaffer, one of the surviving carpet-baggers, T. M. Argo, and J. C. L. Harris. In addition, many republicans, who for political reasons did not care to parade their views, voted for the amendment.
On the other hand, some democrats opposed it as uncon- stitutional. But they were few. The mass of the party sup- ported it enthusiastically ; some from race feeling, some from partisan motives, some from the conclusion thoughtfully ar- rived at that by it alone could good government be secured. A large element of democrats, populists, and republicans acted from still another motive. With vision and foresight, they looked forward beyond the existing party struggle and for the sake of the political ideals of their children-of the state of the future-they were willing to go to almost any length to carry the amendment and thus remove from politics in the state the sore spot which was rapidly impairing the political health, and with it the political morality, of all the people. Many of these had no particular reverence for the fif-
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teenth amendment, believing as most people in the South did, that by reason of the method of its adoption it had never been in morals or in law a part of the Constitution and that hence it was not binding upon their consciences. But with many others this was not the case. They believed that the amend- ment was probably in conflict with the Constitution and it re- quired a powerful impulse to gain their support. Hope for the ultimate restoration of the sort of political morality which had prevailed in an earlier day and for an educated electorate furnished that and justified their action to themselves.
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On July 24th the legislature met and adjourned to July 30th, when it met again. This action was frankly stated to be due to the necessity of watching the Supreme Court in order to prevent judicial interference with the amendment.
The state election had been placed in August by the legis- lature in order to avoid if possible any confusion with the national campaign and any federal interference. It was held on August 2d and the amendment was carried with a majority of 53,932. Sixty-six of the ninety-seven counties gave majori- ties for it. Aycock carried seventy-four counties and received a majority of 60,354. The total vote was about seventeen thousand less than in 1896.
The enfranchisement of the negro in 1867 partook of the nature of a revolution. It was now in a measure undone by a counter-revolution, this time accomplished under the required forms of law. The current of progress checked by the negro vote was once more set in motion and the state was ready to go forward to a new day.
After the election forty-five registrars were arrested on various charges and bound over to the federal court. It was in part a means of intimidation and was opposed by many republicans including Senator Pritchard. Judge Furches was also known to be opposed. When the legislature met the cases were still pending and to the rage of the republicans, the ex- pense of counsel for the accused was assumed by the legis- lature.
The national campaign was of interest chiefly in connec- tion with the primary for United States senator and the elec- tion of members of Congress. Bryan's success was a cer-
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tainty. The senatorial contest was between F. M. Simmons and Julian S. Carr and resulted in the selection of Simmons by a tremendous majority. He carried eighty-one counties. Seven Democratic congressmen out of nine were chosen and the hated White was defeated. Bryan carried the state by a slightly increased majority over 1896 in a much smaller vote than that cast in the state election.
After the election of Simmons by the legislature, Senators Butler and Pritchard attempted without success to induce the Senate, for the first time in its history, to go behind the legislature which had chosen him and decide upon the legality of his election. Their failure was the first victory of the amendment.
The suspicion and hostility among democrats towards the republican members of the Supreme Court was increased by something which happened on October 17th. Theophilus White, the inspector of shell-fish, declined to accept the act of the legislature abolishing his office and sued in the Superior Court to settle his title and after winning there was sustained by the Supreme Court. His salary remaining unpaid because the auditor and treasurer denied having any authority to pay it, in view of the act of the legislature, a controversy without action to compel the auditor to issue his warrant and the treas- urer to pay it was submitted to the Superior Court which decided in his favor, and the case was carried to the Supreme Court on appeal. In May, 1900, a decision declaring White entitled to enforce payment was rendered. The decision was written by Chief Justice Faircloth with Judges Furches and Douglass concurring and Judges Clark and Montgomery dis- senting.
No writ was issued at the time and the legislature at its June session passed a resolution asking if White's claim had been paid. During the recess of the court the clerk declined to issue a writ and when the court again assembled applica- tion for a writ was at once made and refused on the ground that the case had gone off the docket and consequently there was nothing to act upon. The clerk asked several times for a ruling on whether he should issue the writ but the court declined to give this. The three concurring judges, however,
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advised him personally to issue it. Judge Clark opposed it and finding that it would be issued wrote out a protest contain- ing his dissenting opinion in the case which he demanded to have published in the reports, a request which the court re- fused on the ground that the case had been closed. Acting under the advice of the judges, the clerk issued a peremptory mandamus upon the auditor to issue his warrant for what- ever amount was due, and upon the treasurer to pay the warrant. The amount was found to be $831.15 which the treasurer paid from the shell-fish funds in his hands. A short time later the legislative committee which was charged with the duty of examining the treasurer's books, declined to give the treasurer credit for the payment and the whole matter was thus referred as it were for decision to the General Assembly.
On December 29, Chief Justice Faircloth died and quite a movement developed to persuade Governor Russell to re- sign so that Lieutenant Governor Reynolds, upon succeeding. could appoint him chief justice. A more unsuitable appoint- ment could scarcely have been suggested. Governor Russell has at times in North Carolina probably been painted a darker hue than he deserved to be, but no one could maintain that he was temperamentally fitted for the supreme bench. He was arrogant and vindictive to an abnormal degree and at times almost venomous in his dislikes. In his private rela- tions he was loyal and friendly to a high degree. He was a very good practitioner but he was not in a strict sense a learned lawyer. More than all these things, public feeling against him was so high that the court would have suffered. Of course the whole proceeding, too, from the standpoint of political morals would have been a questionable one. There is no evidence that either the governor or lieutenant- governor took the matter seriously and early in January Russell appointed Judge Furches chief justice and C. A. Cook associate justice.
And with this entirely creditable action the fusion admin- istration passed into history.
CHAPTER XV THE RECENT YEARS
The ratification of the suffrage amendment and the inaugu- ration of Charles B. Aycock mark, as sharply as ever is pos- sible, the beginning of a new era in North Carolina. The enfranchisement of the negro in 1867 was scarcely, in fact, more a revolution than the disfranchisement of the mass of the race by constitutional amendment. Not that every hope aroused at the prospect of the removal of the negro from politics was at once gratified. The negro was himself im- mediately out of politics, but he did not, as will be seen, cease to be a political question. That he has since been in some degree an issue is the fault of both parties; of the re- publicans, for not frankly recognizing the question as settled; of the democrats, for bringing up the question at times when there was no real danger to be apprehended. But it is a fact that here began the disappearance of the issue, and with it a lessening factor in political life, came a revival and growth of interest in other things. The brake which for more than three long and dreary decades had checked the wheels of progress was at last lifted and the commonwealth, politically and so- cially, moved forward. And a new generation began to grow up which thought of other things. A new tolerance began to develop and men were able once more freely to debate po- litical questions without thought of the negro or fear for the continued existence of white rule. And at the same time, to make the period still more revolutionary, came the develop- ment of public education which was to be the most important fact of the years which followed the opening of the century.
Aycock's campaign had shown that a new type of leadership was in control in the state, and his superb inaugural served to confirm the impression and to give promise to the people
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of peace and progress. His very selection as a party candi- date made it clear that the emancipation of the democratic party had finally come; it was a visible token that the party no longer owed anything save service to the people. Never was there a more suitable choice of a leader to open a new era. As Dr. Alderman said of him, he was "perhaps, the most conspicuous example of the Southern idealist, lifted beyond partisanship and carrying into politics the heart of the re- former and the training of a scholar." He had reached the hearts and minds of the people, he gave them the progressive leadership they had long lacked and earnestly desired, and for the following four years he was the dominating figure in the life and thought of the state.
From a legislative standpoint the session of 1901 was un- interesting. A new and improved election law was passed, the school law materially changed, and four new judicial dis- tricts created. There was a considerable increase in legisla- tion limiting the sale of liquor in various localities, bearing evidence to the growth of the prohibition movement. The legislature was confronted with a deficit and the new system of assessment and the new taxes adopted were bitterly un- popular in a great part of the state. After adjournment con- siderable pressure was exerted to induce the governor to call a special session to correct faults in the law but he refused, claiming that there was a pressing necessity of raising every possible dollar and that he had no reason to believe that the legislature would change the law, if indeed it was desirable to do so.
The legislative session was notable, however, for one thing. It closed with the impeachment and trial of Chief Justice Furches and Judge R. M. Douglas. Reference has already been made to the decision in the White case and its settle- ment. Two days afterwards the News and Observer hinted at impeachment but the press generally was silent until after the election. To the majority of democratic laymen who thought about it at all, already not too well inclined towards the court, it seemed a clear case of the violation of the constitutional provision which declared that the decision of the Supreme Court in cases of claims against the state
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should be merely recommendatory and that no process in the nature of execution should issue thereon but that it should be reported to the next session of the legislature for action. There was, however, no popular demand for impeachment but so far as can be judged from the press, widespread in- difference or at most an inclination to delay judgment until the legislature met. On the other hand politicians who were hostile to the judges welcomed the opportunity to oust them and it was certain that the demand would come from them at least when once the session began.
Upon the assembling of the legislature there was much discussion of the question among the members. At first it seemed hardly likely that the movement for impeachment would prevail. But in addition to the politician class alluded to, there was a large group of able, sincere, and conscientious men who felt that a vital principle was at stake and that action should be taken. Their feeling was greatly strength- ened by the demands made to the legislature by local attor- neys, representing holders of North Carolina bonds who had not accepted the compromise of 1879, and who asked for a full settlement. What, argued this group of members, was to prevent the Supreme Court from enforcing the payment of such claims in the same way? Could not the repudiated. special tax bonds also be collected? Still another group, a small one, however, while admitting the unconstitutionality of the judges' act, contended that they should be censured, but not impeached. The case was highly technical and the laymen were in the hands of the lawyers.
On January 3d, Locke Craig, of Buncombe, introduced a resolution of impeachment against the two judges. The reso- lution was referred to the judiciary committee and a sub- committee of investigation was appointed, which reported after taking testimony that the judges were impeachable, but declined to make a recommendation. Judge Connor, a mem- ber of the sub-committee, wanted a resolution of censure passed, believing that the judges had over-stepped their powers and treated the legislature flippantly and contemptu- ously, but he was opposed to impeachment. The judiciary com- mittee voted twenty-four to ten for impeachment and made a
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favorable report on the resolution to the House on February Sth. The republican minority presented a strong legal re- port upholding the judges, and Judge Connor offered a reso- lution of censure.
The debate was opened by Craig in a bitter and fiery speech, and continued for several days. On February 18th, after the Connor resolution had been defeated, eighty-five to twelve, the impeachment resolution was adopted by a vote of sixty-two to thirty-three, thirteen democrats voting in the negative. In the action finally taken both the elements of the opinion discussed were present. It was not as often al- leged purely a political prosecution, for it cannot be said to have been dictated by partisanship much further than is true in the large majority of impeachment cases. But, on the other hand, it would be a grave mistake to think that partisanship did not play a part and an important part. Many of the members, however, who voted for impeachment, had taken their position regretfully and only under the compulsion of principle and conscience. The case did indeed offer abundant room for difference of opinion and outside the legislature as well as inside, men differed widely. The republicans, of course, opposed the decision of the House and on February 21st filed a written protest against it.
A board of managers, consisting of William R. Allen, Locke Craig, George Rountree, A. W. Graham, R. H. Hayes, J. F. Spainhour, B. B. Nicholson, F. M. Shannonhouse, and A. A. F. Seawell, was elected and on February 20th, a com- mittee of the House, headed by Francis D. Winston, impeached the judges at the bar of the Senate. On February 23d, five articles of impeachment were adopted and presented to the Senate by the managers in a body. As summarized by Judge Long they follow :
The first article charged that the respondents unlawfully and wilfully, and in violation of Art. I, Sec. 8, Art. IV and Sec. 9, and of Art. XIV, Sec. 3, of the constitution, and of the laws, caused the mandamus writs to issue in the case of White v. Auditor, when there was no appropriation for the payment of White's salary and account.
The second article charged respondents with intending to
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bring the General Assembly into disrepute and wilfully and unlawfully and defiantly and contemptuously violating the provisions of chapter 21, Laws of 1899, and of the constitu- tion respecting the issue of process in the nature of execution to collect a claim against the state ..
The third article charged that on the 14th day of June, 1900, twenty-three days after the decision and judgment, in White v. Auditor, the legislature passed a resolution of inquiry, and made inquiry by two of its members of the treasurer, whether the claim of White had been paid, and that the legislature intended thereby to forbid payment to White, and that the respondents, knowingly, wilfully and wrongfully directed the writ to issue in violation of the constitution and of the acts of the General Assembly.
The fourth charged the respondents with directing the writs to issue unlawfully and contrary to the course and prac- tice of the courts, (1) because the claim was one against the state, and should have been brought originally to the Supreme Court, and not submitted in the first instance to the Judge of the Superior Court; (2) that the writs were issued in wil- ful disregard of statutory provisions relating to writs for mandamus; (3) that the writs were issued contrary to the course and procedure of the Supreme Court; (4) because the writs were in disregard of chapter 19, Laws of 1899; (5) be- cause one of the associate justices was denied the right to file a protest and dissent respecting the issue of the writ at the fall term, 1900, this being about five months after the case had gone off the docket by final judgment.
The fifth article indefinitely charged that at various times, and in numerous decisions (referring to the office-holding cases), the respondents wilfully, unlawfully, persistently, in- tentionally, contemptuously, and by a specious course of reasoning, disregarded, nullified, destroyed and defeated, as suited their purpose, the acts of the General Assembly in violation of the constitution, and that in culmination and consummation of this persistent, wilful and unlawful intent, caused to be issued the writs of mandamus, and the claim of White for $831.15 to be paid.
On February 25th the Senate organized as a court of
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impeachment and summoned the judges, who replied through F. I. Osborne, T. J. Jarvis, C. M. Cooke, William P. Bynum, Jr., F. H. Busbee, B. F. Long, and J. Lindsey Patterson as counsel. The managers associated with themselves as coun- sel C. B. Watson, T. F. Davidson, W. A. Guthrie, J. H. Pou and C. M. Busbee.
On March 6th the answer of the judges was made. It was a long and elaborate document and in itself constituted an able defence. The respondents admitted of course the fact of the decision and the issuance of the mandamus, but denied that it was issued illegally or that they had shown any disregard of their oaths or their official duty to obey the constitution and laws of the state. They also denied any usurpation of legislative authority or intention to bring the General Assembly into disrepute or disgrace. They argued that the claim of White was not against the state, and replied to the charge of political partisanship by reciting the history of the court in relation to the "office-holding cases."
The trial lasted seventeen days. Judge W. R. Allen, the chairman of the board of managers, opened for the prosecu- tion which then introduced eleven witnesses. The managers sought to show a partisan spirit running through all the de- cisions in the "office-holding cases," and, while they denied any necessity to prove a guilty intent, sought to prove "an attempt to prevent the people from controlling the exer- cise of their public offices" and "to weaken the power of the General Assembly." They were successful in proving that the judges had contradicted themselves in the decision of the case and that they had taken a position at variance with certain precedents of the court. They were, however, unable to prove political partisanship or evil intent.
The case for the respondents was opened by Judge By- num in a speech of great power, after which sixteen witnesses were introduced, including the two respondents who proved to be powerful witnesses in their own behalf. A large group of prominent lawyers, most of them democrats, had been summoned as expert witnesses to testify as to the legality of the judges' action, but were excluded by the court as incom- petent. The defence, basing their action upon the case fa- Vol. III-21
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mous in North Carolina legal history, of Hoke v. Henderson, sought to prove the constitutionality of their action and con- tended that even if they had erred it was an error and not a deliberate violation of law and that it was necessary to prove a guilty intent to secure conviction.
After argument of counsel, closed for the respondents by Osborne in a superb speech which was the most impressive of the trial, and for the managers by Watson, the vote was taken on the first article. It resulted in acquittal twenty- seven to twenty-three, twelve democrats voting "Not Guilty." The managers then declaring that the first article contained the most serious charge, offered to withdraw the others, or have a verdict of "Not Guilty" entered. It was finally de- cided to have the vote taken on each, at the conclusion of which the Senate as a court adjourned sine die. The votes resulted :
Guilty
Not Guilty
Article I
27
23
Article II
24
26
Article III
24
26
Article IV
25
25
Article V
16
34
A majority of people in the state, apparently, had already decided just as the Senate did. There was much confusion of thought in regard to the legal questions involved, but there was nothing like a general belief that the judges had been guilty, with intent, of any offence worthy of conviction. Both Judge Furches and Judge Douglas had prior to their elevation to the bench been men of pronounced political convictions and had been active in politics, but on the bench, up to the White case, at least, they had very successfully divested themselves of any bias, and worthily upheld the high standard of the Supreme Court of North Carolina. It was impossible to make the mass of thoughtful men believe that the two judges who in twenty-three of the thirty-nine "office holding cases," in- volving judges, solicitors, railroad commissioners, and the control of state institutions, had either written or concurred in opinions which ruled in democrats and excluded repub-
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licans and fusionists, were biased judges, or, as Judge Long phrased it, that, corrupted, they "hauled seines for min- nows." Many, however, who opposed impeachment, believed the judges' position in the case wrong and their action a dangerous precedent.
During the course of the trial there was, as during Hol- den's trial, much loose talk and numerous threats of federal interference. There was of course no talk of a new recon- struction, but it was confidently urged that if the judges were convicted, the amendment would be overthrown, the indicted registrars severely punished, and the state visited by some federal punishment, undescribed and mysterious, but full of horror. These had no effect of course. Soon after the con- clusion of the trial the cases of the registrars were all nol. prosed by agreement, largely through the influence of Sen- ator Pritchard.
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