CHAPTER IV

We know [said the minority report] that [the southern states] have governments completely organized, with legislative, executive, and judicial functions. Weknow that they are now in successful operation; no one within their limits questions their legality, or is denied their protection. How they were formed, under what auspices they were formed, are inquiries with which Congress has no concern.

A state is under no restriction as to the mode of altering its constitution; if it chooses to receive assistance from the President, or any one else, the validity of the amended constitution is not affected.

To the statement of the majority regarding the disposition of the southern people, the minority opposed the high authority of General Grant. In an official report he had said:

I am satisfied that the mass of thinking men of the South accept the present situation of affairs in good faith.... [They] are in earnest in wishing to do what they think is required by the government ... and if such a course was pointed out they would pursue it in good faith.

The right way in which to deal with the southern people was, then, to conciliate them, as the President had tried to do, not to perpetuate their hostility.

If Congress adopted the program recommended by the majority, said the minority, it would repudiate its own solemn declaration made in 1861,

that this war is not waged upon our part in any spirit of oppression, nor purpose of overthrowing or interfering with the rights or established institutions of those states, but to defend and maintain the supremacy of the Constitution, and to preserve the Union, with all the dignity, equality, and rights of the several states unimpaired.[62]

The proposed provisions regarding ineligibility would dishonor the government by annulling the pardons granted by the President. Further, the program contradicted itself, since it proposed to treat the southern communities as states, in submitting a constitutional amendment to them, while at the same time imposing on them conditions to which a state could not lawfully be subjected.

After a debate of which these two opposing reports are a convenient summary, Congress adopted the program of the committee. The joint resolution, changed into a form embodying the present Fourteenth Amendment, was passed on June 13, 1866.[63]The two bills proposed were taken up, but Congress adjourned without bringing them to a final vote, leaving the South to be regulated during the recess by the Civil Rights Act, and by an act, passed over the President’s veto on July 16, embodying in a less drastic form the provisions of the Freedmen’s Bureau Bill which had failed in February.[64]

When Congress met in December, 1866, the same voluminous mass of reconstruction proposals and declaratory resolutions appeared in both houses as at the last session. But the denunciation of the President and of the Johnson governments was more emphatic in these bills and resolutions, as well as in the debates. Sumner proposed a resolution to this effect:

That all proceedings with a view to reconstruction originating in executive power are in the nature of usurpation; that this usurpation becomes especially offensive when it sets aside the fundamental truths of our institutions; that it is shocking to common sense when it undertakes to derive new governments from the hostile populations which have just been engaged in armed rebellion, and that all governments having such origin are necessarily illegal and void.[65]

Another resolution proposed that the committee of the House on territories be instructed to take steps for organizing the districts known as Virginia, North Carolina, etc., into states. Cullom said in a speech:

During the last session of this Congress we sent to the country a proposed amendment to the Constitution.... The people of the rebel states by their pretended legislatures are treating it with scorn and contempt.... It is time, sir, that the people of the states were informed in language not to be misunderstoodthat the people who saved this country are going to reconstruct it in their own way, the opposition of rebels to the contrary notwithstanding.[66]

Another fact which appeared prominently in the speeches and resolutions of this session was the growing fear, real or assumed, that freedmen and loyal persons in the South were in mortal danger. Bills for their protection were introduced by the dozen.

Shall we shut our eyes [said a speaker] to the abuse and murders of loyal men in the South, and the continued destruction of their property by wicked men, and give them no means of protection?[67]

Stevens exclaimed that the United States would be disgraced

unless Congress proceed[ed] at once to do something to protect these people from the barbarians who [were] daily murdering them; who [were] murdering the loyal whites daily, and daily putting into secret graves not only hundreds but thousands of the colored people.[68]

At first the lower house resumed its consideration of the bills recommended at the last session by the joint committee. But early in February, 1867, these were dropped in favor of a new bill. This was the Reconstruction Bill which became law on March 2. It provided that the South should be divided into five districts, each to comprise the territory of one or more of the southern states. The President should assign to each district a military officer not below the rank of brigadier-general, and should detail for his use a sufficient military force. The duties of these officers should be “to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish, or cause to be punished, disturbers of the public peace and criminals.” To this end they might either allow local courts to exercise their usual jurisdiction or organize special military courts, for the procedure of which a few general regulations were provided in the bill. Until the states should be by law restored to the Union, the governments existing inthem were declared “provisional only, and in all respects subject to the paramount authority of the United States, at any time to abolish, modify, control or suspend the same.”

In section 5 of this bill were stated the conditions upon which the southern states might regain their places in the Union. In each of them a constitutional convention should be elected. For members of this convention all male “citizens” of the voting age should vote, except those excluded from office by the pending Fourteenth Amendment. These were forbidden to sit in the convention or to vote for delegates. The convention thus formed should frame a new constitution, which should give the franchise to all persons qualified to vote for delegates by the present bill. The constitution should be submitted to the people of the state for ratification, and to Congress for approval. When these should have been received, and when the legislature elected under the new constitution should have ratified the Fourteenth Amendment, then Congress should pass an act admitting the reconstructed state to Congressional representation, and the present law should cease to operate in that state.[69]

The principle of this bill was the same as that of the reconstruction measures first undertaken at the suggestion of the joint committee, namely the punishment of an enemy. The debate in the House was opened by a felicitous quotation from Vattel on the public law applicable to the case of a conquered enemy.[70]The punishment here provided was, however, more severe than that first proposed. The former program was designed to offer to the states the alternative of adopting the Fourteenth Amendment or remaining out of the Union and under the Freedman’s Bureau—which was, indeed, regarded as a very obnoxious alternative. But the present bill required them not only to ratify theamendment, but to adopt new constitutions, elect new governments, enfranchise the negroes, and disfranchise their most prominent and respected citizens; and meanwhile imposed upon them not simply a bureau, to interfere in individual cases, but the virtually absolute rule of a military governor.

This bill was passed over Johnson’s veto on March 2, 1867. On March 23 a supplementary act was passed, providing means for executing section 5 of the preceding act. The initiative in calling the constitutional conventions, instead of being left to the states, to be exercised or not, as they chose, was now assigned to the military governor. He, with the assistance of such boards of registry as he might create, was directed to register all persons qualified to vote for delegates. He should then fix the number of delegates and arrange the plan of representation, set the day for election and summon the convention.[71]

A third reconstruction act was passed on July 19, 1867. It is unnecessary to discuss it, since it was only explanatory of the acts of March 2 and 23, and added nothing which needs mention here to their provisions.[72]

Were the Reconstruction Acts constitutional? Since the Supreme Court has failed, either voluntarily or otherwise, to decide every case brought before it depending upon this question,[73]reasoning is not rendered idle by authority. The Supreme Court has indeed expressed a definite opinion on the subject, but has given no decision.

The opinion referred to was expressed in the case of TexasversusWhite.[74]The Court said:

These new relations [namely, those created by the civil war] imposed new dutiesupon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the states with the Union. The authority for the performance of the first had been found in the power to suppress insurrection and to carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every state a republican form of government.

This the Court considered good authority for the passage of the Reconstruction Acts. Most of the advocates of the acts based them upon this theory.

Now, upon that clause of Article IV., Section 4, of the Constitution which says: “The United States shall guarantee to every state in this Union a republican form of government,” theFederalistremarks:

It may possibly be asked whether [this clause] may not become a pretext for alterations in the state governments without the concurrence of the states themselves.... But the authority extends no further than to aguarantee[theFederalist’sitalics] of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed.[75]

The intention of the clause, says theFederalistin the same paper, is simply to guard “against aristocratic or monarchic innovations.” To one not interested in establishing the constitutionality of the Reconstruction Acts, it seems indisputable that the clause is rightly interpreted by theFederalist. Story accepts this interpretation as a matter of course.[76]Cooley groups the clause with that which forbids the states to grant titles of nobility.[77]If this interpretation is correct, then the guarantee clause gives no authority for destroying a state government of a republican form and substituting another.

There is, however, a constitutional basis for the Reconstruction Acts. It is the war power of Congress.

If a section of the people of a stale rebel against thegovernment, the resulting contest is not a war, in the sense of international law. But as it may assume the physical character of a war, so it may call into existence the rights and customs incident to war. Upon this principle the federal government acquired the rights of war in the contest of 1861-1865.[78]Now the rights of war do not end with military operations; one of these rights is the right of the victorious party, after an unconditional surrender, to occupy the territory of the defeated party, to govern or punish the people as it sees fit. If the United States government acquired the rights of war, this right was included. The close of a war is not simultaneous with the cessation of fighting. The surrender of the southern armies was an important incident in the civil war; it was not the end. If the federal government had the rights of war before this incident, it had them after.

The United States government might therefore say to the persons composing the military power which it had subdued: As the terms of war, you are to be governed by military government. If the persons against whom this sentence is assumed to have been pronounced formed the majority of the population of a state, one result of the sentence would be to suspend independent state government. The United States government might choose another punishment. It might say to the lately hostile persons: We forbid you to participate in the federal government. If the persons so sentenced form the majority of the population of a state, that state can send no representatives to Congress while the sentence remains. These sentences might be imposed permanently or only until such time as the people sentenced should fulfil certain demands—hold certain conventions, pass certain laws, adopt certain resolutions in certain ways. The federal government can thus effect throughits war powers what it cannot effect through any power to interfere directly with a state government. It had no right to reconstruct the government of Maine in 1865, because Maine had no body of people over whom the federal government could exercise war powers. It had the right to reconstruct the government of Georgia, because nine-tenths of the people of Georgia were lawfully at its mercy as a conqueror.

Even if it be admitted, however, that the federal government had the power described, it may still be argued that the Reconstruction Acts are not legally justified. A conqueror has a right to govern a conquered people as he pleases and as long as he pleases; he also has a right to alter his mode of treatment and substitute another mode. But after he has imposed certain terms as final, after the requirements of these terms have been complied with, after he has restored the conquered people to their normal position and rights and has unmistakably terminated the relation of conqueror to conquered—then his rights of war are at an end. It may be argued that this was the case when the Reconstruction Acts were passed. It may be argued that in December, 1865, the federal government had, through the President, terminated its capacity as a conqueror, and could regain that capacity only by another war; that after that termination it had no more power to reconstruct Georgia than to reconstruct Maine.

This argument is irrefutable if we assume that the President had full power to act for the federal government in the disposition of the defeated Secessionists, and that therefore his acts of 1865 were the acts of the federal government. In case of an international war, which is closed by a treaty, the President may (if supported by the Senate) act finally for the federal government, and estop that government (so far as international law is concerned) from further action. But at the close of a civil war he cannot exercise his diplomaticpower. The disposition of the defeated people in this case falls to the legislative branch of the government.

If the President had pardoned a great majority of the Secessionists, that fact perhaps might have legally estopped Congress from passing the Reconstruction Acts. These acts were a war punishment, and a pardon cuts off further punishment.[79]But the total number of persons who received amnesty under the proclamation of May 29, 1865, was 13,596,[80]which was of course only a small fraction of the Secessionist population.

The passage of the Reconstruction Acts may thus be regarded, from a legal point of view, as simply the substitution of one method of treating the defeated enemy for another. The change was from mildness to harshness. It was doubly bitter to the defeated enemy, after he had been led to believe that his punishment was over, to be subjected to a worse one. But these are not legal considerations.

That the Reconstruction Acts required communities not states to ratify a constitutional amendment did not affect their legality. That an amendment depended for its validity on such ratification might make the amendment void (though even from this result there is a means of escape in the theory of relation, to be mentioned later), but that would not affect the act requiring the ratification. That this requirement was not made with the exclusive purpose of obtaining votes for the passage of the amendment is shown by a resolution introduced into the House of Representatives on July 21, 1867, which reads:

Resolved, That in ratifying amendments to the Constitution of the United States ... the said several states ... are wholly incapable either of accepting or rejecting any such amendment so as to bind the loyal states of the Union, ... and that when any amendment ... shall be adopted by three-fourths of the statesrecognized by the Congress as lawfully entitled to do so, ... the same shall become thereby a part of the Constitution.[81]

What virtues the Reconstruction Acts had besides legal regularity will be discussed later.

THE ADMINISTRATIONS OF POPE AND MEADE

In the Third Military District, of which Georgia was a part, the Reconstruction Acts were administered from April 1, 1867, to January 6, 1868, by General Pope, and from January 6 to July 30, 1868, by General Meade.[82]The present chapter will describe, first, the manner in which these men conducted the political rebuilding of Georgia, and second, the manner in which they governed during this process.

On April 8 Pope issued his first orders regarding the registration of voters. The three officers commanding respectively in the sub-districts of Georgia, Florida and Alabama were directed to divide the territory under them into registration districts, and for each of these to appoint a board of registry consisting as far as possible of civilians.[83]On May 2 the scheme of districts for Georgia was published. The state was divided into forty-four districts of three counties each, and three districts of a city each. For each district the names of two white registrars were announced, and each of these pairs was ordered to complete the board by selecting a negro colleague. The compensation of registrars was to be from fifteen cents to forty cents for every name registered, varying according to the density or sparseness of the population. It was made the duty of registrars to explain to those unused to the enjoyment of suffrage the nature of this function. After the lists were complete they were to be published for ten days.[84]

The unsettled condition of the negro population suggested to Pope the possibility that many negroes would lose their right to vote by change of residence. He therefore ordered on August 15 that persons removing from the district where they were registered should be furnished by the board of registry with a certificate of registration, which should entitle them to vote anywhere in the state.[85]

The election for deciding whether a constitutional convention should be held, and for choosing delegates in case the affirmative vote prevailed, was ordered to begin on October 29 and to continue three days. Registrars were ordered to revise their lists during the fortnight preceding the election, to erase names wrongly registered, and to add the names of persons entitled to be registered. The boards of registry were to act as judges of election, but registrars who were candidates for election were forbidden to serve in the districts where they sought election.[86]

The election was to occupy the last three days of October. On October 30 Pope extended the time to the night of November 2, in order to give the negroes ample opportunity to vote, which in their inexperience they might otherwise fail to do.[87]

After the election the following figures were announced:[88]

The delegates elected were ordered to meet in conventionon December 9th.[90]On that day the convention met in Atlanta. Its business was not completed until the middle of March in the following year. The constitution which it framed more than met the demands of the Reconstruction Acts. A single citizenship was established for all residents of the state, in language borrowed from the Fourteenth Amendment to the federal Constitution.[91]Legislation on the subject of social status of citizens was forever prohibited.[92]The electoral right was given to all male persons born or naturalized in the United States who should have resided six months in Georgia.[93]Electors were privileged from arrest (except for treason, felony or breach of the peace) for five days before, during, and for two days after, elections, and the legislature was ordered to provide such other means for the protection of electors as might be necessary.[94]Other provisions presumably acceptable to northern sentiment were the prohibition of whipping as a penalty for crime,[95]and the command that the legislature should create a system of public schools free to all children of the state.[96]

By an ordinance of the convention, made valid by being embodied in military orders, April 20, 1868, was appointed for the submission of the new constitution to popular vote, and also for the election of members of Congress and officers of the new state government.[97]This election resulted in the adoption of the constitution by a majority of 17,699 votes, and in the election of a governor (Rufus B. Bullock by name), a legislature, and a full delegation to the lower house of Congress.[98]The remaining requirement of the ReconstructionActs was that the new legislature convene and ratify the Fourteenth Amendment. This transaction will be reserved for the next chapter.

General Pope was inspired by the ideas and emotions from which reconstruction had sprung. He was an ardent friend of the reconstruction measures. He was convinced of the importance of suppressing the old political leaders in his district. He held with enthusiasm the optimistic views prevalent in the North regarding the negroes. Their recent progress in “education and knowledge,” he said, was “marvellous,” and if continued, in five years the intelligence of the community would shift to the colored portion.[99]The purport of his orders, the didactic style in which they are couched, the declarations of his principles which frequently accompany these orders, indicate the spirit in which he administered the office of military governor.

Most of the official acts of Pope concerned either the enforcement of obedience and the suppression of disobedience to the letter and spirit of the Reconstruction Acts, or the protection and promotion of the present interests of the freedmen.

In assuming command he announced that in the absence of special orders all persons holding office under the state government would be permitted to retain their positions until the expiration of their terms. Their successors, however, were to be appointed by Pope alone; no elections should be held in the state except those required by Congress. The general expressed the hope that no necessity for interference in the regular operation of the state government would arise. It could arise, he said, only from the failure of state tribunals to do equal justice to all persons.[100]A fewweeks later he announced that this necessity would also arise if any state officer interfered with or opposed the reconstruction measures; such an officer, it was “distinctly announced,” would be deposed.[101]Governor Jenkins, on April 10, had issued a letter to the public, advising them to abstain from registering and voting under the Reconstruction Acts. Pope had excused him with a lecture, and then issued the order referred to, to make clear that no more advice of that sort from state officers would be permitted.[102]Opposition to reconstruction by state officers was declared to include also the awarding of state printing to newspapers which opposed reconstruction, and it was ordered that thereafter the state’s patronage should be given only to loyal papers.[103]Another measure to the same end was the order that no state court should entertain any action against any person for any acts done under the military authority.[104]But while opposition by state officers was thus dealt with, freedom of public opinion was emphatically declared. The declaration accompanied a public reprimand administered to the post commander at Mobile for interference with a newspaper.[105]

The careful consideration for the needs of the freedmen shown in the general’s method of forming the boards of registry, in his instructions to the registrars, in his provision of certificates of registration to migrating citizens, and in his extension of the time of election, has been pointed out. Of a similar character was the warning to employers that any attempt to prevent laborers from voting, or to influence their votes by docking wages, threats, or any other means, would be severely dealt with.[106]

In his first general orders, as we have said, Pope warnedthe judiciary against racial prejudice. It was probably disregard of this warning which caused the removal of about a dozen judges, justices of the peace, and sheriffs.[107]In the interest of equal justice, Pope also ordered that grand and petit jurors should be selected impartially from the lists of voters registered under the Reconstruction Acts.[108]Besides this general protection, individual relief was given by release from arrest, mitigation of the conditions of confinement, reduction of fines, and other special dispensations.[109]The method of securing justice mentioned in the Act of March 2, 1867, namely by ordering the trial of cases by military commissions, was employed by Pope only once.[110]

Such was the administration of Pope. Its influence on thepersonnelof the state government was large, but was exercised only slightly through removal, chiefly through appointment to fill vacancies. Pope removed about fifteen state officers (almost all of whom were the judicial officers mentioned in the preceding paragraph). He filled about two hundred vacancies.[111]It is significant that a great number of these were caused by resignation. His acts of interference with the action of state officers were few, and with all his zeal for the success of reconstruction, he favored freedom of speech. Nevertheless, his opinions and his personal character, combined with such interference as he did practice, served to gain for him the dislike of the people and the rather unjust reputation of a petty tyrant.

Though Meade lacked Pope’s zealous enthusiasm for reconstruction, yet he held much the same opinion as his predecessor regarding the duties with which he was charged. Like Pope, he forbade the bestowal of public patronage onanti-reconstruction newspapers.[112]Like Pope, he thought it his duty to depose state officers who opposed the execution of the Reconstruction Acts. When he assumed command he found the convention at loggerheads with the governor and the state treasurer. The convention had levied a tax to pay its expenses, and pending the collection of it had directed the treasurer to advance forty thousand dollars.[113]The treasurer (Jones by name) declined to do this except on a warrant from the governor, according to the regular practice. Meade requested Jenkins to issue the warrant. Jenkins refused, on the ground that the act would violate the state constitution under which he held office, and that even if it were authorized by the Reconstruction Acts (which he denied), that was an authorization contrary to the Constitution of the United States, upon which he would not act.[114]Thereupon, on January 13, 1868, Meade issued an order by which the governor (designated as the “provisional governor”) and the treasurer (also designated as “provisional”) were removed and Brigadier-General Ruger and Captain Rockwell “detailed” to act as governor and treasurer respectively.[115]For this act the convention rewarded Meade with a resolution of gratitude.[116]Before the end of the same month the state comptroller and the secretary of state were also removed forobstructing reconstruction,[117]and later the mayor and the entire board of aldermen of Columbus shared the same fate.[118]

Toward the freedmen General Meade assumed the attitude of his predecessor. He made similar rules to protect them, in voting, from coercion by employers.[119]On the other hand, observing that too frequent enticement of negroes to political meetings was disturbing industry, he announced that interference of this sort with the rights of employers by political agitators would meet with the same punishment as interference with the rights of freedmen.[120]

Besides following the two policies of suppressing resistance and protecting freedmen, Meade used his power to a great extent simply in the interest of the general welfare. Public peace and order seemed threatened on the eve of the April election. Orders issued on April 4 expressed the belief that there existed a concerted plan, extending widely through the Third District and apparently emanating from a secret organization, to overawe the population and affect elections. Both military and civil officers were ordered to arrest publishers of incendiary articles and to organize special patrols.[121]Troops were distributed so as to command the parts chiefly in danger,[122]and the frequent resignation of office by sheriffs occasioned the order that no more resignations would be permitted, but that the sheriffs must retain their offices and execute the law.[123]By way of benevolent despotism, Meade, at the request of the convention, suspended the operation of the bail process and of the writ ofcapias satisfaciendum, and promulgated the provisions of the new constitution for the relief of debtors until the constitution should become law.[124]Likewise he gave special orders in eight or ten casessuspending trails, releasing prisoners, and otherwise preventing hardship or failure of justice. Whereas Pope had convened one military court, Meade convened six,[125]and before these thirty two cases were tried. Meade appointed about seventy state officers and removed about twenty.

These facts show that the two administrations we are considering were alike in policy, and that in action Meade’s was the more vigorous. Nevertheless, while Pope was disliked, Meade, thanks to a more attractive character, enjoyed a certain popularity.

Such was the process by which the Disciplinarians, the Humanitarians, and the Republican Politicians hoped to gain their respective purposes. What were the results of the process by the end of the administration of Meade?

For the Disciplinarians they were not encouraging. Military government was received not as discipline but as bullying. The spirit which reconstruction was designed to quell was only embittered; for to those who entertained it reconstruction was not the chastening of the nation, but the domineering of a political party, which it was hoped and believed would soon lose its ascendency.[126]

For the Humanitarians reconstruction had produced written laws regarding equality of civil and political rights, which were deemed a subject of congratulation. Outside the laws they would have found less encouragement. The kindness of the white people toward the negroes had been changed to apprehension by the events of 1865. When the advent of negro suffrage brought the carpet-baggers to the South to marshal the negro voters for their own benefit, and when these men began to disturb the negroes by organizing them into mysterious Union Leagues and giving themindigestible ideas of their rights, apprehension became alarm. Negroes seized property of all kinds—including even plantations—by violence, supposing this to be one of their new rights. Already they had raised a new terror by crimes against white women, hitherto unknown. Some thoughtful men believed that the best defence against the dangers apprehended from the disturbed black population was kindness and friendly influence.[127]That opinion was not heard after the arrival of the carpet-baggers; its methods were then seen to be inadequate. Secret organizations were formed by white men for protection against the negroes. These organizations, which sowed the seed of a subsequent harvest of crime, at first included men of the best character and of the highest standing.[128]Thus reconstruction, together with its written laws, had produced conditions which made the net Humanitarian results doubtful, at least for the moment.

For the Republican Politicians reconstruction did not produce in Georgia all that was to be desired. When the enterprise was first launched some of the white men, though offended, favored accepting the inevitable and endeavoring to elect good men to the constitutional convention and to the new state government.[129]Others, carried further by their anger, determined to take no part in elevating the negroes and debasing their heroes. Prominent among these, as we have said, was Governor Jenkins. These men stayed at home on October 29, 1867, contemptuously ignoring the “bogus concern called an election,” which occurred on that day.[130]Many of these latter, by the time the “motley crew assembled at Atlanta” had finished its labors, decided tofollow the example of the former. A convention met at Macon on December 5, 1867, formed a party, the Georgia Conservatives, named a ticket, with John B. Gordon at the head, and began a powerful campaign for the defeat of negroes and adventurers at the April election.[131]To make an active fight was recognized as a better course than to stand in ineffectual scorn.[132]As a result the sweeping victory expected by the Republican Politicians did not occur in Georgia. A Republican governor was elected; but in the state senate the seats were equally divided between the Republicans and the Conservatives, in the state house of representatives the Conservatives obtained a large majority, and of the seven Congressmen elected three were Conservatives.[133]

THE SUPPOSED RESTORATION OF 1868

The passage of the Reconstruction Acts of 1867 determined the course of reconstruction, but did not stop discussion. When Congress met in December, 1867, the acts passed continued to be attacked and defended and new bills to be introduced and dropped. But the plan as adopted remained untouched, with one exception.

One of the reasons given by the joint committee on reconstruction for abolishing the Johnson governments was that the Johnson constitutions had not been ratified by popular vote, and therefore did not rest upon the consent of a majority of the people. To avoid a like defect in the new governments the act of March 23 had provided that the new constitutions should be regarded as adopted only if a majority of the registered voters took part in the vote on the question of adoption. At its next session Congress repented of this provision; it was now seen to involve the risk that the opponents of reconstruction in the southern states would defeat the new constitutions by the plan of inaction. This risk should be avoided, since the adoption of a state constitution probably meant the election of a Republican state government, and hence of Republican Senators, as well as Republican Congressional Representatives and Republican Presidential Electors in November, 1868. These advantages would be lost if the new constitutions were defeated. Therefore, by an act which became law on March 11, 1868, the reconstruction legislation was amended so as to provide that elections held under that legislation should bedecided by a majority of the votes cast. This act also adopted as part of the general scheme two expedients already employed by Pope in the Third District. That is to say, it provided that any registered voter might vote in any election district in his state, provided he had lived there ten days, and that the elections should be “continued from day to day.”[134]

Aside from these alterations, Congress allowed reconstruction to complete its course according to the first plan. Within the first six months of 1868 North Carolina, South Carolina, Louisiana and Florida, besides Georgia, had adopted new constitutions. According to the Act of March 2, 1867, two more steps would complete the process for these states; namely, the ratification by their legislatures of the Fourteenth Amendment, and the declaration “by law” (provided Congress approved the constitutions) that they were entitled to representation in Congress.[135]Congress now decided, instead of waiting for the ratification of the amendment, to pass the declaratory law at once, which should operate as soon as the ratification should have occurred. By this method one act would suffice for all the states which had adopted constitutions.

The bill for this purpose was called the Omnibus Bill. It provided that North Carolina, South Carolina, Georgia, Florida, Louisiana, and also Alabama,[136]should be admitted to representation in Congress as soon as their legislatures elected under the new constitution should have ratified the Fourteenth Amendment, on condition that the provisions of that amendment regarding eligibility to office should at oncego into operation in those states, and on condition that the constitution of none of them should ever be amended so as to deprive of the right to vote any citizens entitled to that right as the constitutions then stood. A special condition was imposed on Georgia; namely, that Article V., section 17, §§ 1 and 3 of her constitution be declared void by the legislature. A precedent for such a requirement was found in the act of 1821, admitting Missouri to statehood.[137]The bill gave the governors-elect in the states concerned authority to call the legislatures immediately to fulfill the required conditions.[138]

The Omnibus Bill became law on June 25, 1868. On the same day Rufus B. Bullock, the governor-elect of Georgia, issued a proclamation in accordance with the act, summoning the legislature to meet on July 4th.[139]

Now, the Reconstruction Act of July 10th, 1867, had provided as follows:

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