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New York special judicial election, 1870

From Wikipedia, the free encyclopedia

A special judicial election was held on May 17, 1870, to fill the seats on the re-organized New York Court of Appeals.

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Transcription

Professor David Blight: The last book you're reading in this course is by a great journalist, Nick Lemann. It's called Redemption: The Last Battle of the Civil War. There seems to be a contest right now in writing about and publishing about the violence of Reconstruction. It's really been discovered by American publishers and certainly by American writers. There are no less than three new books out on either the Colfax Massacre, which we'll talk about in a minute, or what Lemann does mostly in his book, which is the story of Mississippi--sometimes called the Shotgun Policy, sometimes called the Mississippi Plan--but, in effect, a coup d'état whereby the white Democrats of Mississippi took back control of that state, largely by terrorist violence, political violence, in 1875. The titles of these books strike me. Redemption: The Last Battle of the Civil War. Charles Lane's book, a good journalistic popular writer, a whole book on the Colfax Massacre entitled The Day Freedom Died--one day. And there's another book by a young, New York private high school teacher, proof that good books can be written by anyone, The Colfax Massacre: The Untold Story of Black Power, White Terror and the Death of Reconstruction. Now all those titles are true. It's not the redemption, of course, that you hear about in Bob Marley's Redemption Song, but I might recommend that you put Marley on while you're reading about this stuff. It might be a nice antidote. No, I'm not going to sing it. But I am going to start with a very brief little poem, one of the best illustrations in poetry I know of, of this idea that revolutions can go backward, that revolutions usually do go backwards, for awhile, that revolutions always cause counter-revolutions. It's a poem by Langston Hughes. He wrote it right near the end of his life, in 1965-- note the date. He entitled it "Emancipation," and then a subtitle: "Long View Negro." Two simple verses: "Emancipation, 1865, sighted through the telescope of dreams, looms larger, so much larger, so it seems, than truth can be. But turn the telescope around, look through the larger end, and wonder why, what was so large becomes so small again." The metaphor is powerful, if vexing. Look through the opposite end of a telescope. Look back at history and not forward, and wonder why what was such a dream, what was so large, can become so small again. Now, when that Fifteenth Amendment passed, that I talked about briefly the other day, there were just amazing celebrations, when it was finally ratified, in 1870, all over the place. I'll only cite a couple. Grant in his Message to Congress in effect said Reconstruction was now largely over. Frederick Douglass, though he wasn't thrilled with the fact that it was the most conservative version of the Fifteenth Amendment and so on, nevertheless said, "We can now breathe a new atmosphere; we have a new earth beneath and a new sky above." That's a dream. One Republican newspaper called it the nation's second birth; second founding. And Wendell Phillips, again the Massachusetts abolitionist, said it was now the real birthday of the nation because now the Declaration of Independence applied to all. Now, that was placing a great deal of hope in a somewhat limited amendment, to say the least. That's 1870. Now go ahead just five years with me. This is the period now of Southern redemption, defined of course as the Southern white Democratic Party's counter-revolution in taking back control of its state governments. Happens very quickly in some Southern states. Some are redeemed as early as 1870 by the Democrats and the last three or so not until 1876/77. But think of what you just heard there, that almost unfathomable hope, rooted in this Voting Rights Amendment, and then listen to this statement from the floor of Congress by one of the most brilliant young black politicians who got himself elected-- among those hundreds who got elected, among the sixteen who got elected to Congress-- John Roy Lynch, a former slave, self-taught, he educated himself; like Frederick Douglass there's mysteries about the brilliance of this guy. But he's elected to Congress when he's twenty-six, from Mississippi, under Mississippi's Radical Reconstruction government, so long as it lasted. He's still there in 1875, and on the floor of the Congress-- which was then, as you'll see in a moment, after the '74 Election, now ruled by a majority of Democrats-- he looks them in the eye and he says, "Think of it for a moment, my colleagues. When I leave my home in Mississippi to come to the capital of the nation to take part in the deliberations of this House, and to participate with you in making laws for the government of this great republic, I am treated, not as an American citizen, but as a brute, forced to occupy a filthy smoking car, both night and day, with drunkards, gamblers and criminals, and for what? Not that I am unable or unwilling to pay my way, not that I am obnoxious in my personal appearance or disrespectful in my conduct, but simply because I happen to be of a darker complexion." Now here's the irony and the point. The majority of those men he was speaking to that day in the Congress, in their minds, when they heard him, to the extent they listened when he said that, I think we can safely assume were thinking, "yeah, that's just exactly the way you should be treated." Now, to 1873 for the moment. The day freedom died, according to Charles Lane's book, is the day of the Colfax Massacre. That day--I wouldn't quite say freedom died on one day, that's a little ahistorical, but so be it; that's probably a publisher's title more than an author's title. But April 14,1873 is in some ways one of those days we could call in American history a day of infamy. The Supreme Court that day-- at least it's the date of the decision, even though it was Easter Sunday-- handed down its decision, five to four, in the Slaughterhouse Cases, so-called, a collection of five cases that came out of Louisiana, which was the court's first major ruling on the Civil War Amendments, on the meaning of the Thirteenth, the Fourteenth and in effect the Fifteenth Amendments. That day, the same day, Easter Sunday, in Colfax, Louisiana--a town, not very big, named for Schuyler Colfax, the Vice-President of the United States in the Grant Administration--in Grant Parish--renamed by the Republican regime for Ulysses Grant--the largest mass murder of Americans ever in American history occurred, in the political violence stemming from the divided election in Louisiana, back in the fall of 1872. Now 9/11 of course killed more Americans. We can get caught up in categories of what is domestic violence and foreign violence and so forth, but this is the largest mass murder of Americans in our history, so far as we can tell. That divided election produced in effect two competing governments in Louisiana: the Republican regime which did win the election, for all practical purposes, in spite of the tremendous political violence committed against particularly black voters in that fall '72 election; but a so-called Fusion ticket of basically a kind of white supremacist coalition also claimed to be the legitimate government of Louisiana. And in this situation of essentially an ongoing vigilante war, throughout many of the parishes, counties, of Louisiana, a standoff took place in Colfax. I'll come back to that in a moment. But back to the Slaughterhouse Case that came down that day. It was, in the end, a testing of the Privileges and Immunities Clause of the Fourteenth Amendment. In 1869 the City of New Orleans, under its Republican state government, created a corporation to move the slaughterhouse of New Orleans--there actually had never been a legitimate slaughterhouse in New Orleans. What the butchers of New Orleans would do, the white butchers of New Orleans would do, is they'd herd the hogs through the streets of New Orleans and basically they'd butcher the things wherever they wanted to, and they always threw all the--this gets ugly--all of the offal from the hogs into the Mississippi River, up river from the city, before the river reached the main water pipeline into the city. This had long been a problem, long been a series of complaints. And so this was an attempt at clean government and clean cities. The city, and the state backing it up, created a corporation that created a new slaughterhouse. They moved it across the Mississippi River and downstream from the city, for health reasons. They put in a state-appointed inspector, and the white butchers of New Orleans were angry. Some butchers and some critics charged this was a monopoly and an unfair practice. Twenty-five butchers brought suit, with support from the reviving Democratic Party-- white butchers. The lower courts in this particular suit found in favor of the new corporation. It was appealed to the U.S. Supreme Court. It got on the docket in '72. It was decided April 14,1873. It was a five-to-four decision. Seemingly on the surface, when you read it-- it's like many court decisions, it's a bit boring at first; five cases from butchers and so on and so on, and you wonder what the hell's this about? Then you keep reading and you realize it became a fundamental decision. Justice Samuel Miller, for the majority, argued that the Thirteenth and Fourteenth Amendments were intended-- this was the good part of the decision--to end slavery and advance the rights of the freedmen. But he made a sharp--in other words, not to protect a bunch of white butchers in New Orleans. And by the way, the lead lawyer, for the butchers, in the Slaughterhouse Cases, was none other than a man named John A. Campbell, a Georgia-born, former member of the Supreme Court. He had been part of the six-man majority in the Dred Scott decision of 1857; resigned his position in the U.S. Supreme Court in 1861 to go home and fight for the Confederacy. He didn't fight on the battlefield; he became Assistant Secretary of State in the Confederacy and served in that position, and other high-ranking official positions, in the Confederate national government throughout the Civil War. And when the war was over he was one of those high-ranking Confederate officials denied the right to vote, disfranchised for up to four years. He was part of the final set of amnesty and pardons that Andrew Johnson enacted just before leaving office in the spring of '69. And Campbell had made it his business, as a Redeemer now, in the South, to thwart and fight Reconstruction at every turn. He hated black suffrage. He hated black people. He was a virulent white supremacist. He took this case on because he wanted to crush Reconstruction. He even argued, by the way, in the Slaughterhouse Cases-- which Miller turned right back on his head--he even argued that the rights of the butchers were being violated under the Thirteenth Amendment. He said that these butchers were now being forced into a form of involuntary servitude because they had to take their hogs across the Mississippi and slaughter then downriver. It was violating their right to make a proper livelihood by their own individual choice. And frankly, folks--I read this decision this morning; well I got through most of it--if you want to read the origins of our modern day uses, and some would say misuses, of civil rights language and legislation, in our own time, the ways in which some American politicians, lawyers, judges, etcetera, pundits, etcetera, etcetera, etcetera, have appropriated the language of the modern Civil Rights movement--especially the language of the "content of our character"--to sometimes some scurrilous ends, the roots of that are in John Campbell's arguments in the Slaughterhouse Cases in 1873. Miller threw the Thirteenth Amendment argument back at Thompson [ph?] and told him, in effect, to--well--stick it somewhere. Now, however, back to Miller's opinion, in a five-to-four case, the real importance of the Slaughterhouse Case is that even though Miller argued that the purpose of these amendments were to advance black freedom and the rights of the freedman, he nevertheless made a clear distinction between national and state citizenship. In these years we don't even think of--well, I don't think we think in terms today of our state citizen-- do you think of yourself as a citizen of the State of Virginia? Maybe you do, I don't know. Maybe today in Pennsylvania, where people are voting in droves, they're thinking of their citizenship as Pennsylvanian, I don't know. But we tend to think in terms of citizenship now, certainly in the early twenty-first century, as a national phenomenon. One has Portuguese or German or American or whatever, Brazilian, citizenship and in some countries dual and so on. Rarely do we think of ourselves as citizens of states. But they did in the nineteenth century. Now what Miller did in this decision though was a bit weird, in retrospect. He named various national privileges and immunities--that's the language of the Fourteenth Amendment--like entering the nation's ports, or protection out on the high seas, the ability to run for federal office, and to travel to the seat of government, and so on. But he never mentioned basic civil rights, access to public facilities, etcetera, etcetera, etcetera. He never mentioned the right to vote. He said all of those rights are only under the jurisdiction of the state, not the national government. In other words, traditional federalism, this separation of what states can control--like the right to vote; like what is a civil right; which civil rights; what kinds of equality are to be adjudicated in court--would be left to the states. Slaughterhouse set in motion then this federal retreat, at least in the courts--and the retreat is already happening elsewhere-- from Miller's own definition, ironically, of the meaning of the Thirteenth and Fourteenth Amendments. Back to Colfax, Louisiana, April 14,1873. I don't have time for all the gruesome details of this massacre, and I'll spare you most of it. But it is in some ways an American My Lai Massacre, a Katyn Forest Massacre--what the Soviets did in 1944 in Poland. One of these authors of this new book, I think a bit inappropriately, uses the term genocide, that it was a result of a wish for genocide. It is mass murder by any definition. What happened is that with these two competing governments in Louisiana--Democrat Fusion government and the Republican government--both would appoint sheriffs in the same parish. So there was the Republican sheriff, who was black, and there was the Democratic sheriff, who was white. Local officials of all kinds are being appointed. Well what happened is that the violence in the countryside got so bad, in Grant Parish, that the blacks in the area began leaving their cabins and leaving their small farms, and they came into Colfax, because Colfax had become a symbol of protection and safety for blacks in the great Red River District of Central Louisiana. By the way, the Red River Region of Central Louisiana was some of the richest soil in all of the South. It was a tremendous sugar and cotton plantation region. Several thousand acres of that Red River District, right around Colfax, was owned by a white landowner named Willie Calhoun, William Calhoun. He was the son of Meredith Calhoun, who had been a very, very proslavery, huge slaveholder before the Civil War. But his son Willie, who had been raised in part in Europe, because his parents kept living half the time in Paris, as a kid was badly, terribly injured. His back was broken. He spent his life as a hunchback. And God only knows how he came by his sympathies and his beliefs in the rights of former slaves, but he became a Unionist during the Civil War in an area where--it was not healthy to be a Unionist in the Red River District. And after the war was over, Willie Calhoun became an early-and-often scalawag, a Republican. And he, in effect, turned over much of his land, without even selling it, to the settlement of hundreds and hundreds of freedmen and their families. Willie Calhoun would spend the Colfax Massacre watching probably 150-odd blacks murdered in cold blood, as a kind of a prisoner on his front porch. But at any rate, blacks gathered in Colfax for weeks before the spring of '73, because it was--it had been, at least, the Calhoun Landing, as it was called, had been a place of safety. Blacks took over the courthouse in Colfax. They occupied it. They collected lots of weapons. They were ready. They built trenches all the way around the courthouse. They were ready for battle. And it is battle they got from a huge mob of disparate, paramilitary whites, many of whom were former Confederate soldiers, many of whom were former members of the Ku Klux Klan; some now called themselves Knights of the White Camellia--they went by all kinds of different names. And what happened on April 14^(th) was indeed, in effect, a pitched battle. The whites had a cannon, lots of weapons. Blacks couldn't hold them off, they fled into the courthouse. The whites captured a black man and forced him to take a torch and they said, "We'll kill you or you take the torch and light the roof on fire." He lit the roof on fire and the courthouse began to burn down, which, of course, smoked most of the blacks out of the courthouse, although a few stayed and were burned to death, hiding under the floorboards. And as they came out many of them were executed right around the door. Before the thing was over that night, the estimate runs from about eighty to possibly as high--we'll never really know--as 150 blacks were killed--most of them execution style; most of them with shots to the head, many of them shots to the back of their heads, and many of them, in the wake of being shot, having their bodies mutilated. The First Representatives of the Louisiana State Government, the Republican Louisiana State Government, arrived forty-eight hours after the massacre and recorded, one after another corpse, shot in the back of the head and then shot many more times, and then somebody's mutilated, and they kept this--this is this kind of gruesome need to describe you find in these reports. They also described many of the bodies being eaten by dogs and turkey vultures. Well, Colfax led to a national sensation. Harper's Weekly and Leslie's Weekly had illustrated articles about it within a week, the famous pictures of blacks carrying their dead home to bury them; quotations from women describing--a woman describing dragging her son away from the dogs who were eating his body, and so on and so forth. And it led to a national investigation, a federal investigation, led by the Republican appointed U.S. Attorney in New Orleans, whose name was James Beckwith, a northern-born New England, old abolitionist fellow with a good deal of zeal who heroically tried to bring indictments and prosecutions. There were indeed many indictments but only three convictions, in the wake of Colfax. It took over two years and it led to the second great Supreme Court case that turned around Reconstruction. That case, first argued in Louisiana, was for the three men convicted of leading the Colfax Massacre. One of the names was a man named William Cruikshank, c-r-u-i-k-s-h-a-n-k; I don't think I put it on the outline, or did I? I guess I didn't, sorry. In the United States versus Cruikshank, the U.S. Supreme Court took up the case of these convictions in Louisiana. The court by this time, early 1876 when the Cruikshank case came down, had a new chief justice. His name was Morrison Remick Waite, w-a-i-t-e, who'd been appointed by Grant in 1874 to replace the recently deceased Salmon P. Chase, who had been appointed Chief Justice by Abraham Lincoln. The court by 1876 was seven Republicans and two Democrats. Most of them now had been appointed by Lincoln or Grant. This was a thoroughly Republican Party Supreme Court. Waite by the way--we've been through many Supreme Court appointments in our recent lifetime and we know how political these things can get--Waite was Grant's fifth choice. The first two people he asked turned him down. I don't want to be on the Supreme Court, there's no political future there. Supreme Court justices in these years often ran for President while they were on the court, and it's--they don't do that, at least they don't do that now. The next two people he appointed, or he wanted to appoint, were turned down by the Senate. Waite was his fifth choice. Nobody had ever heard of him. He was known in Ohio, but as one of his own Supreme Court colleagues called him, said Waite was, quote, "at the front rank of second rank lawyers." And maybe it proved the old adage-- apologies to anyone from Ohio; you know the old saying; Ohio's had more presidents I think even than Virginia-- some are born great, some achieve greatness, some just come from Ohio. Morrison Waite will write the opinion, in a nine-to-nothing decision, unanimous decision, in the Cruikshank case. This was a test, this case now, of really the Enforcement Act passed in 1870, the Enforcement Act as part of the Ku Klux Klan Acts, authorizing the federal government to enforce the right to vote, with military action if necessary, in the South. This was a case now testing that; also, of course, testing the Fourteenth and Fifteenth Amendments. The court decision in Cruikshank found the indictments, it said, faulty. It overturned two of the three convictions. It ruled that those immortal phrases of 'due process' and 'equal protection,' those two great clauses in part one of the Fourteenth Amendment, applied, they said, only to state actions, and not to the actions of individuals. If a man murders another man in Colfax, Louisiana, in a political way or any other way, that's a state matter. Even if it's around voting it's a state matter, not a federal matter; can't be adjudicated in the federal court. Federal government does not have the power to enforce the right to vote, the right to civil rights, and so on. The Cruikshank case--the implications of the Cruikshank case--immediately were obvious. It meant, number one, that mass murder went unpunished in the United States. Two, it meant that blacks increasingly now would be at the mercy of now hostile state governments. Back when Justice Miller wrote that decision in Slaughterhouse, there were still a lot of Republican Regimes. And he claimed to his dying day he was leaving adjudication to states, under sympathetic Republic governments. Yeah, but Justice Miller, what if a government's no longer sympathetic, what if it's run by Klansmen? And three, it opened up--Cruikshank now opens up--as a federal court decision, all manner of discriminatory laws passed by what will be Democratic Redeemer governments in the Southern states. Why was there a nine-to-nothing decision in 1876 on this, with seven of the justices appointed by Lincoln and Grant and so on? Well, one, you have to realize that by '75 and '76, when these guys were adjudicating this decision, there was a tremendous amount of just flat-out fatigue with Reconstruction. And I've been to all--I've been to a lot of your sections now and I've heard you say the same thing, and I'm not chastising you, I'm not. But sometimes we read back into the past even our own fatigue with certain issues. They were sort of fed-up with Reconstruction in the North. Well yeah, they were, but look at the consequences. It's clear, even in their own writings, that many of the justices just wanted to get rid of Reconstruction and leave it to the South. It signaled now, most importantly--and Foner makes this point in the one little paragraph he gives you on the Cruikshank case--it signaled now that the federal government was, in effect, exiting Reconstruction; certainly the Supreme Court was. And as Foner says, terror was given a green light anywhere that a state government was unwilling to enforce the law or protect people. Now, why was Radicalism waning in the 1870s, or even at the beginning of the 1870s? What is it about the Grant years, especially the second Grant Administration, that leads--that just practically paves these roads to a Southern redemption, a Southern counter-revolution? Well there are many factors, and let me kind of run through them and then focus especially on the scandals, for a moment, and then on this larger question of violence; in case you haven't heard enough about violence. First of all there's the Panic of 1873, which hit in the spring of 1873. A major economic depression had hit the country--eventually the entire country--that led to a great deal of labor strife and violence. It meant in the wake of the--well, in the midst of the Panic of '73, into '74, '75, that the issues now that politicians were most concerned about, and that voters were most concerned about, particularly in the North, were things like currency, tariffs, unemployment, railroad subsidies, labor strife, whether a union had the right to strike here or the right to strike there. And across the great Midwest, among farmers, the biggest issue was the price of wheat, which dropped from two dollars a barrel to fifty cents in a year and a half. Wages for manufacturing laborers in the United States, in a year and a half, dropped by fifty percent across the country; that's for those who kept their jobs. The Panic of 1873 shifted people's minds, to say the least. Then there's the factor of--the nature of Grant's presidency; the way in which Grant himself even defined the presidency. Grant, you'll remember, was a rather reluctant politician, at first. He actually got a little better at it than his historical reputation has sometimes led us to believe. Grant could be very political. Although he did have this idea that the presidency ought to be--especially in these crisis years, with the tremendous bitterness, bloody shirt tensions after the Civil War; and after all, he's the general that won the war and obliterated Virginia--that the president ought to be now just basically a caretaker, ought to have as few opinions as possible; a caretaker presidency, not so much a leader as a unifier. Now his hands-off approach to so many things, of course, is what, in part, led to the scandals that have so long been associated with him, or at least with his administration. I would argue that Grant has gotten, to some extent, a bad rap, from some historians, although if you look at any of those lists that come out every year, when they survey historians--the greatest presidents, the worst presidents--Lincoln's always at the top and then you get FDR; now Reagan is always in the top three, for reasons I don't even want to discuss. [Laughter] Well, a lot of airports are named for him, I guess that's why. At any rate, enough on that. Grant has always been down near the bottom. I can't resist this. The great American cynic of the nineteenth century, one of our greatest historians and one of our most beautiful writers--but what a cynic--Henry Adams, son of Charles Francis Adams, grandson of Quincy, great-grandson of John. This was his description of Grant, and he was living the Grant Administration: "Grant had no right to exist." [Laughter] "He should've been extinct for ages. That 2000 years after Alexander the Great and Julius Caesar, a man like Grant should be called and should actually and truly be the highest product of the most advanced evolution, made evolution ludicrous. The progress of evolution, from President Washington to President Grant, was alone evidence enough to upset Darwin. Grant should've lived in a cave and worn skins." Oh. [Laughter] That's cold, and unfair. But under his leadership a whole series of four or five different scandals that sort of set the standard [laughs] for scandal to come in American history; although we've had some much worse ones since than some of these. Most of them were of course financial. There's almost no sex in the Grant scandal years, so far as we can tell. The first was the Gold Scandal. This was an attempt to corner the gold market by one Jay Gould and James Fisk. These were Wall Street guys in New York. This is in 1869, right after Grant took office. They did indeed corner the market on gold. They tried to buy up all the gold in New York, and then they planned to force bankers and business people to buy the gold from them at inflated prices--it's an old cornering trick. They made eleven million dollars in three weeks doing this, in the nineteenth century. They were eventually selling that gold at $163.50 per ounce. And the only way to break their corner was--suddenly, because it happened so fast--was for the Federal Government to begin selling all of its gold, put it on the market, get the prices down. Grant's brother-in-law--never appoint your brother-in-law to anything--Abel Corbin was a sort of personal emissary. He assured and promised the plotters, Gould and Fisk, that he had influence on Grant and that Grant would never permit the government's gold to be sold. But he was wrong and Grant did allow it to be sold. And then Grant's treasury secretary, George Boutwell, got involved. The scandal finally broke open in the press, and though nothing ever really happened to Gould or Fisk--setting in motion a history of who gets caught and who doesn't get caught in the Wall Street world--it was the first scandal of its kind that began to lead to cries of civil service reform, which became a big rallying cry in the 1870s. Then there was the Whiskey Ring. Man, this was old-fashioned, just unadulterated fraud. This began in the early 1870s. It first started in St. Louis. It was really a cartel, what we in modern times would call the creation of a cartel. These were whiskey distillers, all over the country, who banded together to cheat the U.S. Government out of excise taxes; the luxury tax on whiskey. The way that they did it is many distillers were forced to join this ring of people around the country or have their businesses ruined; join or we'll run you out of business. The Whiskey Ring had branch offices all over the country, in cities like Milwaukee and Peoria, New Orleans, Chicago, Cincinnati, in Washington, and many other cities, North, South, West, you name it. And then they started bribing the Treasury Department, which of course is where the excise taxes would go to. Many officials in the Treasury Department were soon on the payroll of the Whiskey Ring, especially the chief clerk of the U.S. Treasury Department, the man who kept the books. One General Orville Babcock, the president's private secretary, was implicated; more than implicated, he was involved. He was charged eventually, although acquitted. Grant entered a deposition on his behalf and his good character and so on, in court--which he never should have done. He didn't really look at the facts, he didn't look at the evidence. The point of all this one is that millions and millions of dollars in liquor revenues were lost to the U.S. Government, from about 1870 to 1875, and most of that money went into the pockets of whiskey distillers and a lot of it went into the pockets of Treasury Department officials who were themselves supposed to be collecting the tax. The estimate is that between forty and fifty million dollars was grafted in this particular scandal. The scandal broke in 1875. There were about 150 people indicted in the liquor business, about eighty-five people indicted in the federal government. There were 110 convictions, although nobody served terribly long in any prison. And thirdly, there's this thing called Crédit Mobilier. This was the company that was first chartered in 1859 as part of--it was the finance company for the Pennsylvania, it was called the Pennsylvania Fiscal Agency originally, it was the finance company for the Union Pacific Railroad, that got the greatest contract in American history to build the Transcontinental Railroad. The Union Pacific had a charter from the federal government to build this great railroad to the Pacific, or possibly two or three of them. For each mile of track built the Union Pacific was to receive ten sections of public land, and from 16,000 to 48,000 dollars, depending on how difficult the terrain was to build on. The Union Pacific arranged the construction contracts with its own firm, that it called Crédit Mobilier, so that all government money would get spent. You know the old routine, if you get a grant, make sure you spend it because they won't give you as much next time. Crédit Mobilier, and therefore Union Pacific, made enormous profits. The shares of stock in Crédit Mobilier skyrocketed, and to keep the federal government in line and to let this continue to go on, many congressmen--we'll never know exactly how many--were on the take, were simply being bribed, in old-fashioned handfuls of cash, by the Union Pacific. This scandal too broke in 1873. All kinds of people were accused, including Vice-President Schuyler Colfax. Congress reprimanded one government railroad agent and two congressmen, and then just left it alone. So far as I know, no one's ever really put a price tag on the graft committed by the Union Pacific in the Crédit Mobilier case. This kind of spoils-men financial corruption became rampant in the Grant years, and again a huge political distraction away from the issues of the South, the issues of the freedmen, the issues of Reconstruction. The other major path to Southern redemption, the success of the white Southern Democratic Party, was of course the uses of violence. But before I give you a little more litany on the level of Klan terrorism, think with me for just a moment what those Radical Republicans originally--almost none of whom are really in power anymore: Thaddeus Stevens died in 1869; Charles Sumner dies in 1874; Benjamin Wade is long gone, as a senator from Ohio. The old leadership of the Radicals is really no longer there by 1874, when the Democrats are going to throw the Republicans out of the leadership of the Congress anyway. But think with me for just a moment, back to what Foner called the Radicals' civic vision. That civic vision again was rooted in Free Soilism, Unionism, winning the war, and ending slavery, emancipation, and then to at least the beginnings of racial equality. You cannot mistake that they believed in at least the beginnings of that in the Thirteenth, Fourteenth and Fifteenth Amendments. But think for a moment, in the nineteenth century how would most Americans think about the idea of equality? I would argue that in our history, this nation in the modern world that probably tried to do more about the idea of equality than perhaps any place else, has gone through three definitions of equality. The first we might simply call equality in the eyes of God, or natural rights. The old Enlightenment--it's not just from the Enlightenment, it's in the Epistles of Paul, it's ancient in some ways--but the idea that somehow you're born equal before God or nature, that you have a natural capacity that's equal. It doesn't say anything about human affairs. It doesn't say anything about government or law. The second kind of equality that came into history is equality before law. That was never codified, never spoken, until the Fourteenth Amendment; the equal protection of the law. That's where it begins. If there's a third kind of equality in our history it's probably what we came to call, in the twentieth century, and especially in the Civil Rights Revolution and its wake, an equality of opportunity. In the nineteenth century trust--they never got to that one, and they didn't get terribly far with equality before law. The Radical Republicans' ideas were up against--and here you can just give up and say, "well you see, what--they tried to go too far too fast; they were ahead of their times; gee whiz, Reconstruction failed, maybe it should've failed, can't do anything about it, so be it; well the lights went out for 75 or 80 years but that's-- you know, some things are inevitable in history." If you're comfortable with that, fine. But the Radical Republican ideology at least set in motion a tradition. The problem was they got cornered themselves by their own language, because the language they got cornered by was the language of guaranteed rights. If you guaranteed somebody's beginnings of equality in law, what else is there to do? If you and I are equal before the law, at least the law says we're equal before the law, what else can government do? But the Radical Republicans in Reconstruction launched that question into our history, as no one ever had. What do governments owe people and what do people owe governments? The trouble, of course, was that on-the-ground in the South, the Klan, and all of its imitators, were winning Reconstruction by terror, by political violence, by intimidation. Now you've read about the Klan. I've given you statistics on Klan violence, especially in 1868 up through 1871. But it was the first Grant Administration--and we've got to give Grant credit for this, and Henry Adams should've at least thought of this when he wrote that God-awful passage--the Grant Administration did act, in 1870 and '71, against the Klan. May 31,1870, it passed the so-called Force Act, or the First Enforcement Act. It made it a federal offence to interfere with any person's right to vote and made it punishable in a federal court. That's the very law the Cruikshank case is going to come, along six years later and say, "no, the federal government can't enforce that, only the state can." It's one of those moments you want to go back into history and just grab some people by the collar and say, "No, no, no, no, think one more time." But, of course we can't do that. February 28,1871, the Second Force Act, provided a machinery for the federal supervision of registration and voting in the South. It had at least tried. And finally they passed what was called the Ku Klux Klan Act; April 20,1871. It authorized the President to use the Army and to suspend the writ of habeas corpus wherever he deemed necessary, if there was a state of insurrection--which there was in South Carolina, in about twelve counties. Move the Army in, if necessary, to protect the safety and security of elections. Now, under this authority of these Enforcement Acts and the Klan Acts, approximately 3000 people, mostly white Southerners, were indicted for Klan violence--murder, intimidation, torture. Thousands were arrested. Many of those 3000 indicted pleaded guilty and got suspended sentences. About 600 were convicted, 250 acquitted. Most received fines or light jail sentences. Sixty-five people were imprisoned for up to five years in a federal penitentiary in Albany, New York. All of them were out by 1875, before the Cruikshank Case. The thousands of people murdered by the Klan, the thousands tortured, the thousands kept from voting--sixty-five people were prosecuted. If you think back to the other day, that quotation I asked you to keep in your head, when Frederick Douglass gives that speech in 1875, imagining the following year the centennial of U.S. independence, and he worries about all the hosannas to American patriotism and to independence, and he says "if war among the whites brought freedom to blacks, what will peace among the whites bring?" It is a peace among the whites that was happening, by 1875. On Thursday we'll move this toward one of the ends of Reconstruction.

Contents

Background

An Amendment to the New York Constitution, adopted in November 1869, re-organized the Court of Appeals. The first judges were to be elected at a special statewide election to take office on July 4, 1870. The new Court had a Chief Judge, elected as such,[1] and six associate judges. Each ticket could have only four candidates for associate judge so that at least two judges were elected by the minority party.

In April 1870, a new city charter for New York City was enacted by the New York State Legislature under instructions from William M. Tweed. The first municipal election under the new charter was scheduled for the same day, with the intention to swamp the strong upstate Republican vote with a heavy Democratic/Tammany vote in New York City.

Results

Boss Tweed's plan worked, and all five Democratic candidates were elected, leaving only two judgeships to the Republican minority.

1870 judicial election results
Office Democratic ticket Republican ticket
Chief Judge of the Court of Appeals Sanford E. Church 239,890 Henry R. Selden 151,978
Associate Judges of the Court of Appeals William F. Allen 239,173 Charles J. Folger 154,930
Martin Grover 238,516 Charles Andrews 154,094
Rufus W. Peckham, Sr. 236,685 Charles Mason 152,306
Charles A. Rapallo 235,994 Robert S. Hale 150,862

Of the seven original judges elected in 1870, only two completed the 14-year term. Four died (Peckham in 1873, Grover in 1875, Allen in 1878, and Church in 1880) and Folger was first appointed, and then elected, Chief Judge, but resigned in 1881. Andrews was then appointed Chief Judge, but lost the election in 1882, and continued on the bench as an associate judge. Rapallo and Andrews were re-elected in 1884. Rapallo died during his second term in 1887. Andrews was elected Chief Judge in 1892, and retired at the end of 1897 after almost 28 years, the longest tenure of any judge on the New York Court of Appeals.

Notes

  1. ^ From 1847 to 1870, the office of Chief Judge was rotative by seniority among the judges.

Sources

  • THE ELECTION TODAY in NYT on May 17, 1870
  • Result in [1] NYT on June 17, 1870
  • Judges of the Court of Appeals at [2] Court History New York
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