The Disfranchisement of the NegroBY WILFRED H. SMITHFrom the Outlook
BY WILFRED H. SMITH
From the Outlook
As an American Negro I feel compelled to take issue with the Hon. John B. Knox of Alabama, in his article in The Outlook of January 21, on the “Reduction of Southern Representation,” and challenge his statement that the recent Constitution of Alabama does not disfranchise the Negro as such, but only prescribes an educational and property qualification test for both races; and his further statement that in case a Negro is discriminated against by the registrars, an appeal to the courts of Alabama will not be in vain.
On the contrary, the fact is that the suffrage provisions of the new Constitution of Alabama are an open disavowal and nullification of the Fifteenth Amendment to the Federal Constitution, and an exclusion of the Negro from the electorate on account of his race and previous condition; also the law providing for an appeal to the courts of the State of Alabama, where a Negro is refused registration, is only a snare, and affords him no relief whatever.
In considering this question the following undeniable facts should be borne in mind:
1. The Twelfth Census of the United States shows the population of the State of Alabama to be 1,001,152 whites and 827,545 Colored; and in 20 counties the Negroes largely outnumber the whites.
2. That since 1875 or thereabouts, up to the adoption of the new Constitution, the Negro vote in the State of Alabama has been suppressed by intimidation and false returns; so that during the entire time the complete control of the state government has been in the hands of white men and the Democratic party.
3. That not a single Negro delegate held a seat in the convention which enacted this Constitution; it was composed exclusively of white men.
4. That the constitutional convention was called upon a party platformin which there was a pledge that no white man, however poor or ignorant, should be deprived of the franchise.
Upon the authority of Judge Cooley’s work on Constitutional Limitations, and the case of Ah Kow vs. Nunan, 5th Sawyer, 560, it is proper to refer to statements in debate on the passage of a law, for the purpose of ascertaining the general object of the legislation proposed, and the mischief sought to be remedied. If, then, we wish to know the purpose of the law, we have but to read the words of Mr. Knox himself, in his opening address as president of the constitutional convention:
“If the Negroes of the south should move in such numbers to the State of Massachusetts, or any other northern state, as would enable them to elect the officers, levy the taxes, and control the government and policy of that state, I doubt not they would be met in the spirit that the Negro laborers from the south were met in the State of Illinois, with bayonets led by a Republican governor, and firmly but emphatically informed that no quarter would be shown them in that territory.
“And what is it that we do want to do? Why, it is, within the limits imposed by the Federal Constitution, to establish white supremacy in this state.”
And so throughout the debate on these provisions the same or similar language was indulged in. Some of the delegates proposed openly to defy the Fifteenth Amendment by frankly writing it in the law that no Negro should be eligible to vote in Alabama. The prevailing opinion seemed to be that the enfranchisement of the Negro in the beginning was an insult and an outrage upon the southern white people to humiliate and degrade them, and it now became their duty in self-defense to disfranchise him as far as they could under the Amendment to the Federal Constitution.
Upon the authority of the Supreme Court of the United States, one cannot do indirectly unlawfully what one cannot do directly lawfully.
How could Mr. Knox keep his pledge not to disfranchise a single white man, made to his party, and at the same time keep his oath to support the Constitution of the United States? Which, think you, had the greater building force upon him? There being only white and black men in Alabama, and the convention being pledged not to disfranchise the whites, who else were there to be disfranchised but the Blacks. No matter how the thing was done, whether by a soldier clause or a grandfather clause, a temporary plan or a permanent plan, its purpose was unlawful and repugnant to the Fifteenth Amendment.
The well-settled rule of construction is that the form of a law by which an individual is deprived of constitutionality is immaterial. The test of the law’s constitutionality is whether it operates to deprive any person of a right guaranteed by the Constitution. If it does, it is a nullity, whatever may be its form.
Only one of many similar illustrations can be given of the administration of this law.
In the postoffice at Montgomery there are about eight or ten Colored clerks and carriers, all of them qualified under the United States Civil Service, who own their homes, each valued at upwards of a thousand dollars. Not one of these men, however, has been able to satisfy the board of registrars in Montgomery county of his good character, his ability to read or write, or that he was assessed with three hundred dollars’ worth of property. The Constitution thus administered has brought about the following results:
In the county of Montgomery, where there are more than 5000 qualified Negro electors, only 47 were allowed to register. And in the whole State of Alabama, with about two hundred thousand qualified Negro electors, only about two thousand five hundred were allowed to register; while all the white men in the state who applied—183,234—were given certificates of qualification for life.
Mr. Knox is also in error when he says that the Negroes of Alabama disqualify themselves by failing to pay their capitation tax, which is a prerequisite for voting.
The payment of the poll tax withoutalso being registered does not give the right to vote in Alabama; and the payment of this tax is not a prerequisite for registration. The truth is, the boards of registrars refuse to register qualified Negroes, no matter what their qualification, or what property they own, or what taxes they have paid, except in such cases as seem to suit their whims. The qualified Negro thus refused is wholly remediless.
The Alabama Constitution provides that any person to whom registration is denied shall have the right of appeal to the Circuit Court. At the trial the solicitor for the state shall appear and defend against the petitioner on behalf of the state. The judge shall charge the jury only as to what constitutes the qualifications to entitle the applicant to become an elector at the time he applied for registration, and the jury shall determine the weight and effect of the evidence and return a verdict. From the judgment rendered an appeal lies to the Supreme Court in favor of the petitioner.
This law, we submit, is an absolute farce. It provides for an appeal from a partisan board to a partisan jury, composed exclusively of white men with the state solicitor, a partisan officer, appearing for the state against the elector. The hands of the trial judge are tied, so that he can only charge the jury as to what constitutes qualifications. The jury are thus made the sole judges of the case, and their decision is final, because nothing but an issue of fact can arise at the trial. Every lawyer knows that an appellate court cannot disturb the verdict of a jury on any disputed issue of fact, and hence on appeal to the Supreme Court the appeal was dismissed, the Court would avail nothing.
The case of the state vs. Crenshaw, 138 Alabama, 506, from Limestone county, referred to by Mr. Knox, in no way supports his contention, and really decides nothing. It has been ascertained that this case was specially made up to induce Negroes to abandon the Federal Courts and seek the State Courts. As arranged, the jury in the Circuit Court reversed the registrars, but on appeal to the Supreme Court the appeal was dismissed, the Court holding that the Constitution gave the right of appeal only to the person refused registration and not to the registrars.
The deception becomes obvious when we consider how utterly impossible it would be for the courts of Alabama, as at present constituted, to carry on their regular business and determine the cases of two hundred thousand qualified Negroes refused registration.