I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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“intended… as a clog upon the franchise:” In 1896, the Mississippi Supreme Court explains how the state disenfranchised blacks

Ratliff v. Beale, 20 So. 865 (1896), the Mississippi Supreme Court case quoted in my last post, is a case of breathtaking honesty.  Not in a good way.  There are two passages which are particularly striking that I want to post here.

The lawsuit seems to have been a set-up.

On the one side, you have J.A.P. Campbell working with the state AG.  Campbell was a congressman during the Confederacy and served for years on the Mississippi Supreme Court; he was considered one of the better justices on the court in the late 19th Century.   On the other side, you have S. S. Calhoon, J. Z. George, and Frank Johnston.  That would be James Zachariah George, who became one of Mississippi’s US Senators at the end of reconstruction, and was as prominent as lawyers and politicians got.   He was at the 1890 constitutional convention and involved in the legal defenses of that constitution.  S.S. Calhoon was the president of the 1890 convention and was within a couple of years on the Mississippi Supreme Court, writing well enough to be quoted over a hundred years later.

The dispute was over the seizure of a piece of furniture by the Hinds County tax collector.

Seriously.

The tax collector (represented by Campbell and the Attorney General) had seized “an article of household furniture,” by law exempt from taxation, to cover payment of a tax due; the property owner, represented by George and Calhoon, sought and obtained a permanent injunction against proceeding against the property.  They appealed on agreed facts.

What was all this legal talent doing in a fight over a chair or the like?  When nothing really was in factual dispute?

They wanted statewide precedent that a new tax did not produce a lien, that, instead, it accumulated annually against the person who owed it.   And why did they want that result?  Because that would better accomplish the actual purpose of the tax– which was not to collect money.  The purpose of the particular tax– the poll tax– was to suppress black vote, and having it accumulate rather than produce a lien would better accomplish that lien.

How do I know for sure that this was the thinking?  Because the court says it, outright, in the opinion!

After setting out the facts and procedural posture, the court invokes a rule of construction that constitutions are to be read somewhat differently than statutes, and that “[t]o find the meaning of the language of the constitution, we are to look to the existing body of the law, whether common or statutory; to former constitutions; to existing evils; to the objects and purposes to be accomplished; and to the remedies intended to be provided.”

The Court then described the value of various kinds of property in Mississippi (it is less than clear to me why) and from their to the question at hand:  Does the poll tax allow an enforceable lien?  This caused the court to describe some history.

Before I quote, be warned:  The open and honest racism of this opinion can be rough going in places.  But it’s fascinating.
We are to consider the condition of things as existing at the time, and especially must we note those grave and permeating forces for evil which were known by all men to exist, the silent and increasing influences of which were corrupting the public conscience, and threatening to involve in common ruin the morals and civilization of one race, and the liberty and safety of another. It is not the province of this court to consider with whom rested the fault which gave origin to the conditions under which the convention was assembled. We deal with them only as existing facts, forming a part of the history of the times. … It cannot be doubted that the question involved in the proper settlement of the electoral franchise had been the subject of more reflection and thought for a period of many years than was bestowed upon all other subjects as to which our constitution underwent material change. Not only in this state, but throughout our sister states, thoughtful and anxious men turned upon the solution of the question all the light to be gathered from history or speculation. Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise. The habitual disregard of one law not only brings it finally into contempt, but tends to weaken respect for all other laws. The most dangerous and insidious form in which this evil can exist is that which manifests itself in the disregard of public rather than private right, for not only are the consequences more widely diffused, and less rapidly eradicated, but, because no particular right of individuals is directly involved, resistance is less prompt, and the evil progresses to dangerous proportions before its existence is noted. Not only was the question of the franchise a most difficult one for solution by reason of its nature, but there was added to its treatment the limitations upon state action imposed by the amendments to the federal constitution. The difficulty, as all men knew, arose from racial differences. The federal constitution prohibited the adoption of any laws under which a discrimination should be made by reason of race, color, or previous condition of servitude.
It would too much extend the volume of this opinion to enter upon a review and examination in detail of all the provisions of our recent constitution in which the subject of the electoral franchise, and its cognate one of the selection of governmental agencies, is dealt with. We deal with so much only as is necessary to a determination of the question involved. He who reads the constitution of 1869 and that of 1890 will have his attention arrested by the marked difference in the number and character of the provisions upon the franchise, and the selection of the chief magistrate of the state. The constitution of 1869, in its single article on the franchise (section 2, art. 7), provided simply that “all male inhabitants of this state, except idiots and insane persons and Indians not taxed, citizens of the United States, or naturalized, 21 years old and upward, who have resided in this state for six months and in the county one month next preceding the day of election at which said inhabitant offers to vote, and who are duly registered according to the requirements of section 3 of this article, and who are not disqualified by reason of any crime, are declared to be duly-qualified electors.” The governor and other state and county officers were under this constitution selected by popular election. The corresponding article in the constitution of 1890 (section 241) is as follows: “Every male inhabitant of the state, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, 21 years and upwards, who has resided in the state for two years and one year in the election district, or in the incorporated town or city in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid on or before the first day of February of the year of which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but every minister of the gospel in charge of an organized church shall be entitled to vote after six months’ residence in the election district if otherwise qualified.” By other provisions, representation in the house and senate was apportioned among the counties, and the counties were arranged in three groups, and the minimum representation to which each group should be entitled in the house was fixed; but it was provided that a reduction in the number of senators and representatives might be made by the legislature, if the same be uniform in each of the said three divisions. To the election of the governor by the popular vote, it is necessary that some person shall receive not only a majority of the popular vote, but also a majority of “electoral votes,” which are votes distributed among the several counties in proportion to the number of representatives to which they are respectively entitled. If no person shall receive such majorities, then the house of representatives is required to choose a governor from the two persons who shall have received the highest number of popular votes. Const. §§ 254-256, 140, 141.
If we look at the map of the state, and at the census reports, showing the racial distribution of our population, and consider these in connection with the apportionment of the constitution, it will at once appear that, unless there shall be a great shifting of population, the control of the legislative department of the state is so fixed in the counties having majorities of whites as to render exceedingly improbable that it can be changed in the near future by the ordinary flow of immigration, or by the growth by births among our own people. The election of the chief executive of the state is also largely affected by the same means. It is in the highest degree improbable that there was not a consistent, controlling directing purpose governing the convention by which these schemes were elaborated and fixed in the constitution. Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from that of the whites,-a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone. A voter who should move out of his election precinct, though only to an adjoining farm, was declared ineligible until his new residence should have continued for a year. Payment of taxes for two years at or before a date fixed many months anterior to an election is another requirement, and one well calculated to disqualify the careless. Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not.
In the article of franchise is found the section we have under consideration. True, as argued by counsel, it was a revenue measure, for it imposes a tax. But it is also true that the payment of the tax is one of the qualifications of an elector, and the question is whether its primary purpose is for revenue, with incidental disqualification to vote attached upon its nonpayment, or whether the tax was levied primarily as an additional disqualification to those who should not pay it, with the incident of revenue derivable from those who should pay. It is to be noted that the section is a part of the article on franchise, and not of that on common schools, in aid of which the tax was levied, and where it would more appropriately be placed as a revenue measure. This is not of great importance, but is of some weight. When a constitution is submitted to the vote of the people, and becomes operative only when adopted by them, we are aware of the rule that the debates of the convention and the journals showing how and when amendments were introduced, and the course of procedure, are of little weight. The reason is that, under such circumstances, it is not so much what the members of the convention thought or said upon a given subject, as what the people intended to declare by adopting the instrument that is material. But it must be remembered that our constitution was never submitted to the people. It was put in operation by the body which framed it, and therefore the question is what that body meant by the language used. In this view, the following history of the subject of poll taxes, as appearing in the journals of the convention, will cast some light upon the question involved: The poll tax was first suggested by some amendments offered by Mr. Calhoon (the president of the convention), of which 300 copies were ordered to be printed, and the amendments were referred to the appropriate committees. The poll-tax section was among the amendments relating to franchise, and, as offered, provided that its payment should be a prerequisite to entitle one to vote, but “no penalty other than levy and sale of landed property shall ever be exacted for its nonpayment.” Journals, p. 38. The seventh section of the article on education, as reported by the committee on that subject, was as follows: “The legislature shall levy a poll tax of two dollars a head in aid of the common school fund, and for no other purposes, and the payment of said tax shall be made compulsory, under such conditions and exceptions as may be deemed best by the legislature.” Id. p. 121. As reported to the convention by the committee on franchise, the clause now under consideration read as follows: “Said tax to be a lien on taxable property.” Id. p. 135. As adopted, it was in its present form. Id. p. 228. It is evident, therefore, that the convention had before it for consideration two antagonistic propositions: One, to levy a poll tax as a revenue measure, and to make its payment compulsory; the other, to impose the tax as one of many devices for excluding from the franchise a large number of persons, which class it was impracticable wholly to exclude, and not desirable wholly to admit. In our opinion, the clause was primarily intended by the framers of the constitution as a clog upon the franchise, and secondarily and incidentally only as a means of revenue.
Having reached this conclusion, it follows as a corollary that, when the language used is susceptible of two constructions, it must be so construed as to carry into effect the purpose of the convention. It is evident that, the more the payment of the tax is made compulsory, the greater will be the number by whom it will be paid, and therefore the less effectual will be the clause for the purpose it was intended. It cannot be denied that it was the purpose of the convention to declare a different rule in reference to property subject to taxation and that which was exempt; and, when we consider the fact that a very large proportion of those it was thought desirable to exclude from the exercises of the franchise owned no other property than that which had for many years been exempted from taxation, the conclusion becomes irresistible that it was intended to leave the payment of the tax to the voluntary action of those who owned no other than nontaxable property.

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