8
On January 14, 1873, the New York Times reported that New York City was troubled by “a large number [of] destitute Italian immigrants...who have recently arrived.” Apparently, they had congregated on Fourteenth Street “and presented a most miserable spectacle.” There was great debate in the city about how to deal with this serious problem; apparently there were many suggestions but few answers.
In Illinois that day the governor Richard Oglesby was inaugurated. This was his second term in office. Among the problems the state was facing, he told the crowd, was the “unprofitableness of farming...due primarily to railroad charges,” and recent changes in the criminal justice system which disqualified potential jurors in criminal cases “who were readers of the news of the day...
“The law should go further,” he said, “and declare every person competent as a juror who may state in open court that he has an opinion based on rumor or representations of the facts made by those he knows, provided that any bias or opinion will not prevent him from rendering a verdict according to the evidence given in the case.”
And in New Orleans “a more beautiful day could not have been imagined...the weather was clear and mild and the sun’s bright rays had a most cheering effect on all.” It was a day that would long be remembered in Louisiana history. Unlike Illinois, they were inaugurating two governors!
Both political parties proceeded with their celebrations without any acknowledgment of the other. Both ceremonies began around noon. In the center of Lafayette Square Democrats had erected a large platform, raised five feet off the ground and decorated with red, white and blue bunting. An American flag hung above its front. Just below the flag was a large wreath bearing one word: Hope.
Thousands of people had begun gathering hours before, wilting in the morning heat to secure a place close to the platform. A brass band entertained them with lively tunes, the bright sun glinting off the gold horns. A photographer had set up his four-wheeled shop in front of City Hall. Thirty or more invited dignitaries sat waiting patiently on the platform. Just after noon, impeached Governor Warmoth and Democratic candidate John McEnery emerged from Odd Fellows Hall and climbed the broad stairway as thousands of supporters welcomed them.
If McEnery’s inauguration was a raucous celebration, Kellogg’s was a somber ceremony. Republicans gathered inside the State House to inaugurate the governor-elect. Sunlight squeezed through clouded windows. Soldiers guarded all entrances and patrolled the corridors, extra rifles stacked in the halls. A thousand spectators, the majority of them Black men, had come for the ceremony. Among them Judge Durell, who sat with the women. One by one invited guests were stopped at the entrance and identified before being allowed to enter. When the guests were seated, as the band played “Not for Joseph,” Acting Governor Pinchback escorted Kellogg into the chamber to loud but respectful applause.
The next day the Times-Picayune would report snidely that the band actually had played the British anthem, “God Save the Queen.”
Both men were sworn into office. Kellogg spoke at great length, but rather than the array of promises typical of such an address he painted a somewhat dismal portrait of the state. “No effective means have been adopted to supply the greatest needs of the people,” he said, reciting a litany of unresolved problems. Eventually, though, he addressed the current situation. He won, he said. He won by actual votes, and he won even after the Democrats had prevented people from voting and stuffed ballot boxes. “I would not hold an office to which I did not believe myself elected,” he said, and he welcomed “the fullest investigation” so that “the action taken by the courts and the national administration may be vindicated.”
As he left the platform the band played a jaunty version of “The Star-Spangled Banner.”
Outside, in the bright sunshine, Governor Warmoth spoke first. He began by citing his accomplishments: he had built or strengthened 468 levees, stretching almost 200 miles; 300 miles of new railroad track had been laid, and soon New Orleans would be connected by rail to Shreveport and Houston. But then he turned dark and angry, using this opportunity to attack his detractors and defend his record. His words oozed bitterness as he referred to his impeachment, reminding the massive crowd that despite all of the charges pending against him not one “human being dared to raise his hand in the presence of God and deliver a jot of testimony against my official honor.”
Several hundred Metropolitan policemen stayed ready inside the Lafayette Square station and by the Carondelet armory. Mostly they were bored, and the day passed remarkably peacefully. A reporter noted that the officers passed the time playing seven-up, euchre and draw poker.
The Historic New Orleans Collection, 1974.25.9.312
Both inaugurations ended at roughly the same time, but not a single confrontation between departing spectators was reported. Governor McEnery held his inauguration gala at the Exposition Hotel that night. It was a grand affair; according to the Times-Picayune, one that “probably exceeds anything of the kind ever held in this city, both as regards to the number and respectability of the attendance.”
Governor Kellogg did not hold a reception, but the next day Republican Senator J. Henri Burch poured a strong dose of reality on the Democrats. He was confronted by a smug McEnery supporter, who chided, “Well, Senator, what do you think of our grand inauguration?” He replied, “I think that it was all out of doors, where you and your governor are sure to remain.” And then he walked off.
As the media pointed out, it had been a glorious day for McEnery, but it was a show lacking any substance. People might address him as governor, they might treat him as governor, but he had no more power to perform a single legal act than the corner smithy.
Both legislatures convened the next day. If the system wasn’t paralyzed, it certainly was crippled. Kellogg’s assembly was able to cobble together a quorum, so legally it could debate and pass bills, but that had no real meaning. Any legislation that was passed would be ignored by McEnery’s supporters.
The first order of business in both the State House and in Odd Fellows Hall was electing a senator to fill Kellogg’s seat in Washington—even though it was unlikely the Senate would admit any man from Louisiana until the mess was sorted out. The Senate is the sole judge of the qualifications of its members and can admit or reject any candidate. Senate leaders instructed its Committee of Privileges and Elections to determine if the state even had a legal government—and, if it found one existed, to decide “of whom it was constituted.”
An amendment to that resolution suggested that if the committee found there was no government, it should inquire when it ceased to exist and if any federal officer had anything to do with its overthrow. The committee chairman, Republican Oliver Perry Morton, summoned the rival Returning Boards to Washington for a hearing.
Meanwhile, Republicans elected P. B. S. Pinchback, making him the second Black senator in American history—if he was seated. The party celebrated this nomination, exclaiming, “We proudly point to a man of color, self-made, self-taught, filling every position in this state with remarkable ability and honor...” deserving a position “on a par with Clay, Webster and Adams.” With misguided optimism they claimed “a mountain of prejudice and ill-feeling...has been swept away to eternal perdition.”
The Democrats struggled to pick their nominee—even if there was little chance he would ever take office. The potential selection of Henry Warmoth threatened to rip the party apart. Traditional Democrats and reform elements of the party despised him and refused to support him, warning that if he was forced on them they would break up the legislature. His supporters, meanwhile, accused those people of bad faith and warned that if Warmoth did not get the seat they would bolt.
To try to resolve the impasse a committee of mainliners met with him and essentially begged him to withdraw his name from consideration. Withdrawing from a fight was not something Henry Warmoth did. While complaining that this candidacy “is of the smallest importance” to him and would involve great expense, he was firm that “a majority of people of this state do not believe what has been said about me, and if the legislature is permitted to express its wishes independent of threats and promises, they will give me their voice.”
One newspaper compared him to the notorious Englishman Colonel Francis Charteris, who once said he would pay ten thousand pounds for a good reputation—because he then could use that to make fifty thousand pounds.
Warmoth received the most votes but not the necessary majority. Because the newly elected Senate’s session would not begin for several weeks, Democrats bought some time by nominating William McMillen to fill Kellogg’s seat for the remainder of the term.
The contest between Pinchback and Warmoth was reported nationally, although the New York Herald concluded, “It will be a humiliating spectacle to see either of them admitted to the Senate of the United States.”
Given the confusion, the Senate decided not to allow the seat to be filled until there was a resolution.
For a man without an office Warmoth remained the focus of attention. His actions and words sold newspapers. He also was busy preparing to defend himself against impeachment, even though his term had expired and he was no longer in office. There was no logic to moving forward with it, of course, but where Warmoth was concerned, logic had long since been abandoned. He still engendered intense emotions in both supporters and detractors, and his enemies were loath to let him off the hook. Their fear was that, somehow, Warmoth would emerge again, perhaps as a Democratic senator, and thus he had to be convicted and stopped.
Before it went much further the chief justice of the State Supreme Court, John Ludeling—who had been appointed to the court by Warmoth—ruled that an impeachment proceeding should be confined to people currently holding office. The expense, he decided, just wasn’t worth it. The Senate dismissed the charges.
Normally after an election, the losing side becomes the opposition. Sometimes loyal, often loud, they use the time to position themselves for the next election. But in this election there was no obvious losing side, and neither Republicans nor Democrats were willing to take that position. The two legislatures continued meeting daily, although Democrats were finding it increasingly difficult to raise a quorum as several members had become bored and had gone home or, in a few cases, had joined the minority inside the State House. The McEnery people denied his supporters were defecting, instead boasting about their legislature. “Those gentlemen have been pledged seventy-five dollars a week for as long as they are in session, and it is the most profitable line they ever struck...you couldn’t drive them home with a club.”
The Republican majority tried to move forward with the business of governing. On most days, what takes place in a state legislative body lacks drama. People are appointed to positions, financial matters are debated and voted upon, rules and regulations are promulgated, pet projects are pushed forward. It’s a mishmash of the bits and pieces necessary to keep the government running as smoothly as possible. While Kellogg’s legislature mostly followed that path, occasionally it pushed hard to consolidate its political power.
Only days after going to work, it passed a bill entitled “An act to regulate proceedings in contestations between persons claiming judicial office.” As with almost every other elective position, both the Republican and Democratic candidates for judges were claiming victory. As Judge Durell and Judge Dibble had demonstrated, control of the judicial system is the foundation of political control. This bill passed through both houses and was signed by the governor in one day, literally giving incumbent judges twenty-four hours to vacate their bench and limiting any legal appeal.
The bill was passed specifically to put Judge Philip H. Morgan on the State Supreme Court. The previous November Warmoth had appointed Judge John Kennard to a vacant seat on the court. After taking office, Pinchback named Philip Morgan to the same seat. Kennard refused to give it up, instead suing. When the state courts ruled against him, Kennard took his case to the US Supreme Court, which placed it on the docket.
With that, all three branches of the federal government, including both Houses of Congress, had become involved in trying to figure out how to deal with the Louisiana situation.
In late December President Grant had finally agreed to meet with the Democratic Committee of One Hundred Concerned Citizens. As a Republican, it obviously was to his advantage for the Kellogg Republicans to maintain control of Louisiana’s state government. The committee was “courteously received and patiently listened to.” After hearing their request for an investigation, the president reiterated his belief that he had no power in the situation. But he did open a window just barely, telling them he had no objection to the Supreme Court, or even Congress for that matter, conducting an investigation. Unfortunately, he told them, he had no right to either authorize or pay for an investigation into a state election.
That would not be a problem, the committee assured him, as several patriotic men surely could be found to volunteer to do that work. The president also agreed, “with great pleasure,” to submit their petition to Congress. Just by meeting with them Grant had given them hope, and by agreeing not to block anything, he had, in fact, sent a message to Congress that he did not object to an investigation.
Congress was already involved. In mid-December, the House passed a resolution authorizing the Judiciary Committee to determine what might be done “to guard against the dangers threatening the liberties of the people of Louisiana” and several other Southern states. It also asked President Grant for guidance, which came on January 13 when he submitted to the House the petition and supporting evidence given to him by the Committee.
The process proceeded legally, which meant much too slowly for Louisiana Democrats. The problem was handed to the House Judiciary Committee, with orders to sort out the situation and suggest...something. Anything. It wasn’t clear that the House had the power to take action, even if it wanted to, which obviously it did not, so it followed the proven path: it gave it to a committee where it might disappear.
The Senate was doing the same thing. It would not seat a senator while the Committee on Privileges tried to figure out if Louisiana even had a state government. After refusing to allow any delegates from Louisiana to cast its electoral votes in the presidential election between Grant and the late Horace Greeley, the Senate also asked that committee to “inquire into the defects of the present electoral system and the best means of remedying them.” In supporting that resolution, Illinois senator Lyman Trumball, chairman of the Judiciary Committee, argued that the country was founded as a republic, not a pure democracy. “It was not intended that the majority should have all the power,” he said. “To put the government on that basis would prepare the way to a despotism.”
And the Supreme Court was preparing to hear arguments about which judges could be seated.
In Louisiana, both legislatures continued to meet regularly, although no one could be certain from day-to-day if a quorum would be present. John McEnery continued to play the role of governor, appointing local tax collectors and assessors. Republicans ignored him. The Weekly Louisianian suggested, “as far as the validity of this...he might as well appoint a few for Mississippi, Maine or California or China,” and reminded people “not to regard the attempts of these tax assessors and tax collectors [to collect taxes] as they are utterly without authorization to enforce their assessments.”
What the newspapers missed completely, and what Republicans had not realized, was that these appointments were part of a broad plan “suggested” by Warmoth to resist the Kellogg government. One of Warmoth’s last actions in office had been to form “an association of concerned citizens to resist unconstitutional taxes.”
Unconstitutional in this case meaning any attempt by Pinchback or Kellogg to collect regular taxes.
If Republicans had expected McEnery to grow bored of this standoff and fade away, they could not have been more wrong. McEnery was a Warmoth disciple. He wasn’t going anywhere. He believed that he had been robbed in the election. Republicans had stolen it from him.
He was going to fight for it. No matter how long it took, no matter how many people got hurt.
Two weeks earlier the Odd Fellows legislature had voted to prohibit payment of taxes to Kellogg’s appointed collectors. It signaled the beginning of a Democratic plan to stage a tax strike, which would deprive the Kellogg government of the revenue it needed to govern. McEnery eventually issued an order warning all tax and license payers in New Orleans “to refuse and resist...any notice or demand” from “certain persons pretending to be tax collectors and threatening penalties or violence,” promising that his government guaranteed full protection.
Which it could not provide. Any power McEnery had to influence events came solely from the loyalty of his followers. Not a shred of it was legal or constitutional. But if enough people followed his directions, he remained a real threat to the Kellogg government.
This proclamation was a test of his power. How far did their loyalty extend? For the first time his followers would have to break the law. They would transition from spectator to participant. Refusing to pay state taxes or a license fee was an act of civil disobedience—with potentially serious penalties. They could be fined or, in extreme instances, imprisoned.
Each man had to decide how much he would risk.
The various investigations slowly ground forward. The situation was deteriorating, anger was growing. It was obvious no decision would satisfy everyone, so legislators were trying to agree on a solution that might prevent violence. On January 24, the State Supreme Court ruled that the Lynch Returning Board was the legal one and Kellogg was therefore governor.
That same day representatives of the Lynch and Warmoth Returning Boards arrived in Washington to appear before the Senate Committee on Privileges and Elections. They brought with them four large trunkloads of returns and affidavits, as well as additional documents that would help them make their case. While the hearing had been convened specifically to determine which senator had been elected, it was in effect an attempt to settle the election.
All of the significant players journeyed to the Capitol for the hearing. Warmoth and Pinchback, McEnery and Kellogg, judges and generals, all of them sat in the same room and answered questions for more than a week.
It didn’t take long for the proceedings to heat up. Soon after the hearing began, a Republican attorney asked permission to present evidence that Warmoth had offered Pinchback a bribe to allow him to take control of the legislature. Warmoth replied that he had no objection to that—but he had to summon witnesses from New Orleans to prove it was not true. Then he added, almost as an aside, that it was well-known “Pinchback was not in the habit of resisting temptation of that kind.”
Pinchback glared at him. “If you can establish anything of that kind, Governor,” he challenged, “I think you ought to do it.”
Warmoth shrugged. “Well, if the committee wants to take that latitude, I have no objection.”
For the first of several times during the next few days spectators and reporters were asked to leave while senators decided exactly how deeply they were willing to explore the situation. It was safest to stay on the well-trod path. The story of the attempted bribe was not relevant, they decided.
Witness by witness, each side made its case. Warmoth claimed that members of the Lynch Board admitted “that they demanded of me the official returns and...without having received them they made up the composition of the legislature.” They had relied on everything except actual votes, from affidavits to their own opinion.
Republicans countered that thousands of registered, legal voters had been denied the right to cast their ballots. For residents of the mostly Black Plaquemines Parish, for example, the nearest poll had been opened thirty-five miles away.
Democrats did not dispute that—instead, they claimed that affidavits supposedly signed by people who had been denied their right to vote had been forged. A witness was asked, “Under whose administration did that take place?”
Governor Warmoth.
Governor Warmoth perked up when that accusation was made. “Was I present?” he asked.
“No,” the witness replied, “you were not.”
“What was said about it?” Warmoth asked.
The witness admitted sheepishly, “Mr. Sypher [his superior] told me not to let you know anything about it.” The room burst into laughter.
For days, the testimony bounced back and forth; for every claim there was a counterclaim, for every accusation there was a more serious charge. It was a mix of fact and fiction, although it was impossible to determine which was which. After listening to this for several days the frustrated New York attorney Charles F. Southmayd told a witness it was enough to make a man’s hair stand on end to see the manipulations which the returns had undergone.
When the investigation concluded, the participants returned to Louisiana to await the report. But time was running out for a peaceful solution.
On February 20, the Senate Committee issued its report. It had compiled more than a thousand pages of testimony. The report accomplished an almost impossible feat: it actually made the situation worse, further muddying the already-murky waters, giving just enough credence to both sides to allow them both to claim some sort of victory.
“The utmost that can be claimed for this decision,” the decision read, “is that the court recognizes the Kellogg government as the government de facto, which may be conceded...whether it has been published by regular election or set up and published by the usurpation of the individuals composing it, sustained by the military forces of the United States...”
The election result was not a judicial question, it continued, so no court could answer it. It was a political question, “to be determined by the political department of the Government.” But this political body refused to answer it.
Politicians didn’t have the right to determine the outcome either, reported the politicians. “The constitution expressly gives to each state the organization of its own legislature,” meaning Federal Judge Durell had no right to become involved, and therefore his decision supporting the Lynch Returning Board had no validity. Meaning the decision putting Kellogg in office was not legal. In fact, it continued, “the committee fails to find words with which to express their abhorrence of the action of Durell.”
Had the election been conducted fairly, based on the returns the McEnery ticket should be recognized as the legal government. But further testimony proved the election had not been conducted fairly; therefore, the result couldn’t be determined by the returns.
The majority of the committee concluded “There is no State Government at present existing in the State of Louisiana,” which meant there was no legal legislature and so neither senator could be seated. To resolve the problem the Committee offered a bill it had written declaring the November election “null and void” and setting up an entirely new election the following May.
That bill included another astonishing suggestion: Governor Warmoth and all his appointed officials should be reinstated with full authority and remain in office until the next election.
Three minority opinions also were published. One of them stated that the frauds were not extensive enough to overturn the election, as Durell had done, and that McEnery should be recognized as Louisiana’s governor. A second opinion stated that just as Federal Judge Durell had no right to interfere in a state election, the United States Senate had no right to involve itself in Louisiana’s affairs, and Kellogg should stay in office until that state’s legislature acted. The third dissent imagined a creative solution: rather than annulling the entire election, those members of the state legislature who both sides agreed had been fairly elected should meet, wherever possible determine which representatives and senators had won, and then that entire body should settle on the governor and lieutenant governor.
In what later proved to be a massive misjudgment, the New York Times speculated, “there is a feeling that if matters are left alone, time will heal the trouble and obviate Congressional interference.”
The paper could not have been any more wrong. Democrats felt the Senate had confirmed what they already knew: the McEnery ticket had been cheated out of its victory. But politicians and judges had refused to rectify that outrage. The months of nominations and relentless campaigning, the contested vote, the fight over the Returning Boards, the myriad legal challenges and the endless political debates were done. The Democrats had pursued every path—and every attempt had been rebuffed.
No one really knew how far Warmoth would go in pursuit of power. Soon they would discover he had few boundaries.
The next morning the Republican boldly declared on its front page, “Warmoth Wants Blood: A Violent Revolution the Sole Hope.” The story read, “A leading Fusionist declares that H. C. Warmoth had telegraphed Mr. McEnery that violence must be resorted to if necessary to establish his so-called government...
“So ‘let chaos come.’ He has nothing to lose and may do harm to his enemies; possibly from the wreck of others’ political fortunes may mend his own.”
Let chaos come.
Warmoth once again had seized the opportunity to place himself at the center of events. In other accounts, the telegram he sent to McEnery actually urged, “If you are a government, do something to show it now. Action! Action! Action!”
Incendiary rumors began spreading. Supposedly Judge Elmore was to be reinstalled in the Eighth District Court, by force if necessary, and if the sheriff objected he, too, would be replaced. Once that was done, all the members of the legislature named to their seats by the Lynch Board were to be arrested and removed from the Mechanics Institute. Newspapers reported that the head of the state Artillery Battalion had met secretly in the night with the commanders of McEnery’s militia and “pledged his allegiance for any enterprise that might be ordered.” The officer denied that, but that story included too many details for it to be complete fiction.
In the middle of that same night several of New Orleans’s most prominent and wealthy citizens went to Governor Kellogg’s home to assure him of their continued support. He also received a reassuring telegram from the Grant administration, telling him, “Do not change your position in any respect. You will be fully sustained.” An acceptable way of promising that should there be an uprising, the United States Army was prepared to put it down.
McEnery also got the message; he had to make a stand. His whole public posture toughened; his words became belligerent. He asked New Orleans mayor Louis Wiltz to pay his militia to protect the city rather than rely on the regular police force. The city council turned him down by a single vote.
Asked by a reporter the next day if he would lead the threatened tax strike, he was adamant. “The moment they dare to attempt this [the collection of taxes] I shall protect the citizens to the best of my power.” Then he added ominously, “I shall not stop at bloodshed to protect them.” The presence of federal troops would not deter him, he continued. “They would not dare meddle with us. There are not enough of them to take part in the struggle. No sir, there are not enough regulars in the state to whip us.”
The city was alive with possibilities. The whispers grew in intensity. Something was coming. Keep your weapons close by.
“Recruiting for the attack on the government is uphill work,” the Republican reported. “We do not think...there will be any blood spilled. The forces of the government are well in hand, well-armed and their esprit is all that could be desired... It is difficult in this practical age to get men to engage in a violation of the law wherein there is a reasonable certainty of getting killed or wounded.”
In Washington, President Grant was trying desperately to stave off the rebellion. He called for an extra session of Congress. His hope was that the two parties might still find a compromise that would avoid federal interference. But admittedly there was “little prospect of heroic treatment.”
Grant had few options. When it became clear Congress was not going to intercede, he finally had to take a stand. The president had proved his toughness during the war, so no one doubted his words. After noting that the existing situation—the two governors and two legislatures claiming to have been elected—had created confusion and uncertainty that had paralyzed the state, he said, “Having no opportunity or power to canvass the votes, and exigencies of the case demanding an immediate decision, I conceived it to be my duty to recognize those persons as elected, who received and held their credentials to office...from the legal returning board...
“I shall feel obligated, as far as I can by the exercise of legitimate authority, to put an end to the unhappy controversy which disturbs the peace...by the recognition and support of that government which is recognized and upheld by the courts of the States.”
Kellogg.
It was a neat bit of political legerdemain. While acknowledging that the federal government had no right to interfere with state elections, he did exactly that by threatening to use federal troops to uphold the state court decision.
McEnery responded within hours, issuing an “official” proclamation calling upon “all citizens of the parish of Orleans, between the age of eighteen and forty-five, subject to and capable of militia duty, to report forthwith to the headquarters...for the purpose of enrollment and assignment to the several militia commands now in the process of organization.”
The “people’s legislature” supported him, passing a resolution calling on Governor McEnery “to use the civil and, if necessary, the military power of the State to reinstate the Judges...and sustain them in the exercise of their judicial powers.”
The Civil War had ended eight years before. The war to end Reconstruction was just beginning.