CHAPTER VI

All persons hereafter elected or appointed to office in said military districts, under any so-called state or municipal authority, or by detail or appointment of the district commanders, shall be required to take ... the oath of office prescribed by law for officers of the United States.[140]

On April 15th Meade had announced that in accordance with this provision the members of the legislature to be elected on April 20th would be required to subscribe to the Test Oath. But he was later advised from headquarters, and by certain prominent members of Congress, that the persons contemplated by the act of July 19, 1867, were those elected under the Johnson government, not under the new government; and that therefore the men elected on April20th were not “officers elected under any so-called state authority” in the sense of the act of July 19th. The eligibility of these men, he was told, was to be determined by the provisions of the new constitution and by the Fourteenth Amendment, and they were not required to take the Test Oath.[142]Meade therefore did not enforce his order. But though the new government was exempt from this one requirement of the Reconstruction Acts, it was subject to the provision which said:

... until the people of said rebel states shall be by law admitted to representation in the Congress of the United States, any civil government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States.

Over the new state government, as over the old, Meade would exercise the powers of a district commander until the legislature by complying with the requirements of the Omnibus Act, should have made that act operative.

On June 28 Meade relieved General Ruger of the office of governor and appointed in his place the governor-elect, Bullock, whom he directed to organize the legislature on July 4.[143]When the legislature met on that day, therefore, Bullock called each house to order in turn, and under his direction as chairman the members were sworn in (by the official oath prescribed in the state constitution), and the presiding officers elected.

On July 7 the legislature informed the governor that it was organized and ready to proceed to business. Bullock, instead of replying, wrote to Meade, stating that it was alleged that a number of men seated in the legislature were ineligible to office according to the proposed Fourteenth Amendment, and hence were disqualified from holding theirseats by the Omnibus Act.[144]Meade replied on July 8 that the allegation was serious, and that he would not recognize as valid any act of the legislature until satisfactory evidence should be presented that the legislature contained no member who would be disqualified from office by the Fourteenth Amendment.[145]Bullock sent Meade’s letter to the legislature, and both houses appointed committees to investigate the eligibility of every member. These committees reported on July 17. The senate committee reported that no senators were ineligible. A minority of the committee found, on evidence detailed in its report, that four were ineligible. After much debate the majority report was adopted.[146]The house committee reported that two representatives were ineligible. A minority report found three ineligible. A second minority report found that none were ineligible. The last was adopted.[147]

The conclusions of the two houses may be regarded, in view of these proceedings, with some just suspicion. Bullock in informing Meade of them expressed the opinion that the legislature had failed to furnish the “satisfactory evidence” upon which Meade had conditioned his recognition.[148]If Meade had desired to know the exact truth, he might well have accepted Bullock’s advice and ignored the reports, investigated the records of the legislators himself, and excluded those whom he found ineligible. But Meade desired only to see that the acts of Congress were complied with. “Satisfactory evidence” was evidence not logically, but formally satisfactory. Meade followed the established principle that legislative bodies are the final judges of the eligibility of their members. He considered the statement ofthe legislature that its members were all eligible formally satisfactory evidence that the acts of Congress were obeyed. Having this evidence, he refused to interfere further. His decision was influenced partly by reluctance to interfere more than was necessary, and partly by aversion to aiding Bullock to gain a party advantage, which he alleged to be the governor’s chief motive in urging the rejection of the reports.[149]He acted with the approval of the general of the army.[150]

He notified the governor that the legislature was legally organized from the date of the adoption of the reports (July 17).[151]Bullock transmitted this message to the legislature on July 21. On that day both houses ratified the Fourteenth Amendment and declared void the sections of the constitution required to be so declared by the Omnibus Act.[152]

As soon as the legislature had performed these acts Georgia was, presumably, according to the acts of Congress, a state of the Union. On July 22 Meade directed all state officers holding by military appointment to turn over their offices to those elected or appointed under the new government.[153]On July 28 orders issued from the headquarters of the army stating that the general commanding in the Third Military District had ceased to exercise authority under the Reconstruction Acts, and that Georgia, Florida and Alabama no longer constituted a military district, but should henceforth constitute an ordinary military circumscription—the Department of the South.[154]On July 22 Bullock, who had up to that time been governor by military appointment, was inaugurated in the regular manner and became governor under the state constitution.[155]On July 25, the sevencongressmen-elect from Georgia were seated in the House of Representatives.[156]The Georgia Senators would doubtless have been seated at this time if they had arrived before the close of the session; but they were elected by the legislature on July 29,[157]two days after Congress adjourned.[158]In view of Georgia’s compliance with the Reconstruction Acts and the Omnibus Act, and in view of the various official recognitions that that compliance was complete, there could now be no doubt that her reconstruction was accomplished and her statehood regained.

THE EXPULSION OF THE NEGROES FROM THE LEGISLATUREAND THE USES TO WHICH THIS EVENT WAS APPLIED

When the Georgia Republicans, or Radicals, as they were locally called, found that instead of a sweeping victory they had won only a governorship hemmed in by a hostile legislature, an effort was made, as we have said, to improve their position through the interference of Meade. Meade refused to aid them. When, a short time afterwards, federal power, on which they had hitherto relied, was completely withdrawn, they seemed left to make the best of an uncomfortable position without any assistance. At this point a god appeared from the machine.

In the state senate there were three negroes, in the lower house twenty-five.[159]Their presence was an offense. It was an offense not merely to the Conservative members. Some of the Republicans entertained Conservative sentiments and principles, but supported reconstruction simply in order to hasten the liberation of the state from Congressional interference.[160]To them as well as to the Conservatives “negro rule” was obnoxious. Negro rule, so far as it consisted in negro suffrage, was established by the constitution. But negro office-holding was not so established expressly. As early asJuly 25, 1868, the question, whether negroes were eligible to the legislature, was raised in the state senate.[161]

Legally considered, the question had two sides, each supported by eminent lawyers. For the negroes it was argued that Irwin’s Code, which was made part of the law of the state by the constitution,[162]enumerated among the rights of citizens the right to hold office.[163]Negroes were made citizens of equal rights with all other citizens by the new constitution.[164]Therefore they had the right to hold office. It was true that the constitution did not grant the right to hold office to the negroes expressly, as it granted the right to vote; but in view of the fact that the convention which made the constitution was elected by 25,000 white and 85,000 colored men, and that that constitution was adopted by 35,000 white and 70,000 colored men, it would be absurd to suppose that the intent of that instrument was to withhold office from the negroes.[165]On the other side, it was argued that the right to hold office did not belong to every citizen, but only to such citizens as the law specially designated, or to such as possessed it by common law or custom. Irwin’s Code could not be cited to prove that negroes had the right, because that law had been enacted before the negroes had been made citizens, and the wordcitizensin it referred to those who were citizens at that time. As the negro had no right to hold office because he was a citizen, and as he could not claim the right from common law or custom, he could obtain it only by specific grant of law. There was no such grant. The argument for the negro was made by the Supreme Court of the state in 1869, the opposing argument by one of the justices of that court in a dissenting opinion.[166]

Such were the legal aspects of the question, which were of course less important than the political and the emotional aspects. The legislature passed upon the issue in the early part of September, 1868, by declaring all the colored members ineligible, and admitting to the vacated seats the candidates who had received respectively the next highest number of votes.[167]If there was some legal ground for unseating the negroes, there was none for seating the minority candidates. It was done on the authority of the clause in Irwin’s Code which said:

If at any popular election to fill any office the person elected is ineligible, ... the person having the next highest number of votes, who is eligible, whenever a plurality elects, shall be declared elected.[168]

But this clause is found under the title “Of the Executive Department,” and under the sub-head “Regulations as to All Executive Offices and Officers.” Under the next title “Of the Legislative Department,” there is no such provision.

For a legislature to unseat some of the elected members because on not untenable legal grounds it finds them ineligible, is not unusual. But the act of the Georgia legislature could not, under the circumstances, be regarded in the ordinary way. It showed strong racial prejudice. It was a startling breach of the system which reconstruction had been designed to institute, committed the very moment after the federal government withdrew its hand. It fixed on Georgia at once the earnest and unfavorable attention of northern public opinion. This fact enabled the Georgia Republicans to bring the federal government again to their assistance.

Their leader, Governor Bullock, at the next session of Congress (December, 1868), presented a letter to the Senate, saying that Georgia had not yet been admitted to the Union.She had not been admitted by the Omnibus Act, for that act provided that she should be admitted when certain things had been done, and those things had not been done. By the Reconstruction Act of July 19, 1867, all persons elected in Georgia were required to take the Test Oath. The members of the present legislature had never taken it. Therefore the action which that body had taken on July 21st, regarding the Fourteenth Amendment, was not a ratification by a legislature formedaccordingto the Reconstruction Acts; it was simply a ratification by a body which called itself the legislature. Hence the Omnibus Act had not yet gone into effect as to Georgia, and Georgia was not yet entitled to representation in Congress.[169]

If this argument was valid in the winter of 1868, it must also have been valid in the preceding summer. Yet in July Bullock had made no objection to being inaugurated as governor of Georgia, on the ground that Georgia had not become a state. He had not refused on that ground to issue on September 10th a commission to Joshua Hill, reciting that he had been regularly elected to the Senate of the United States by the legislature of the state, and signed “Rufus B. Bullock, governor.”[170]The argument was an afterthought, not advanced until the expulsion of the negroes created a favorable opportunity for a hearing. It conflicted with the declarations and acts of the military authorities, and of the House of Representatives, but the sentiment aroused by the expulsion of the negroes was considered strong enough to sustain a repudiation of those declarations and acts.

Direct appeal to this sentiment was the auxiliary to the above argument. Bullock’s letter to the Senate was accompanied by a memorial from a convention of colored men held at Macon in October. It said that there existed in Georgiaa spirit of hatred toward the negroes and their friends, which resulted in the persecution, political repression, terrorizing, outrage and murder of the negroes, in the burning of their schools, and in the slander, ostracism and abuse of their teachers and political friends. Of this the act of the legislature was an instance and an evidence. The aid of the federal government was implored.[171]

Similar charges had been made, it will be remembered, in the debates of 1866 and 1867. Now, however, they began to be urged with an earnestness and persistence altogether new. So conspicuous is this fact in the debates in Congress that a southern writer ironically remarks: “From this time forth the entire white race of the South devoted itself to the killing of negroes.”[172]The rest of this chapter will be devoted to considering how much truth there was in the reported abuse of negroes and “loyal” persons.

We stated in Chapter II. that after the war a bitter jealousy and animosity toward the negroes arose among the lower class of the white population, and in Chapter IV. that the restless conduct of the negroes under the influences of reconstruction filled the upper class with such alarm that they formed secret organizations in self-defence. This practice, at first supported and led by good men of the higher class, simply for defence, soon fell into the hands of the poor white class, the criminal class, and the turbulent and discontented young men of all classes, and became an instrument of revenge, crime and oppression. The change, however, was not a complete transformation. A great deal of the whipping inflicted upon negroes wasbona fidechastisement for actual misdemeanors. This mode of punishment was the natural product of the transition from the old social conditions, when the negroes were disciplined by their masters,to the new conditions.[173]But besides these acts of correction many outrages were committed upon negroes, and also upon white men, simply from malice or vengeance, or other private motive.[174]These outrages included some homicides.[175]The testimony of credible contemporaries belonging to both political parties agrees that the Ku Klux Klan and similar organizations were used only to a very small extent for political purposes.[176]

How many of these corrective or purely vicious acts were perpetrated upon negroes? Democrats of that time commonly said that the number was insignificant, that the peace was as well kept in Georgia as in any northern state, and that statements to the contrary were invented for political purposes.[177]The number was, indeed, greatly exaggerated by Republicans, as some of the Republicans themselves admitted.[178]Making allowance for the warping of the truth in both directions, and considering the statements of the moderate Republicans,[179]and the admissions of some of the Democrats,[180]remembering also the recent disbandment of the army and the disturbed conditions of society, we must conclude that the attacks on negroes, made by disguised bands and otherwise, were very numerous.

The friends of the negroes also fared badly. Philanthropic women who came from the North to teach in the negro schools were almost invariably treated with contempt and avoided by the white people.[181]This was due partly to the lingering bitterness of the war and partly to the connection of the negro schools with the Freedmen’s Bureau. This institution, the office of which was to set up strangers, from a recently hostile country, to instruct the southern people in their private affairs, was in itself odious. It was rendered more odious by the want of intelligence and tact, and even of honesty, which is said to have frequently characterized its officers. That the hatred thus aroused should be visited upon true philanthropists who were connected with the Bureau was unfortunate, but inevitable. As for the political friends of the negroes, the “loyal” men, or in other words the white men who supported reconstruction, they were habitually treated by the Conservative press and by Conservative speakers with violent invective. Conservative editors and orators neither engaged in nor recommended the slaughter or outrage of Radicals, but by continually voicing furious sentiments, they furnished encouragement to action of that sort by men of less intelligence and self-control.[182]

The accounts of lawlessness and persecution in Georgia, though exaggerated, undoubtedly had a substantial foundation. Whether this fact was a good argument for renewed interference in the state government by Congress is another question.

CONGRESSIONAL ACTION REGARDING GEORGIA FROM DECEMBER, 1868, TO DECEMBER, 1869

On December 7, 1868, the credentials of Joshua Hill, one of the Senators elected by the Georgia legislature in the previous July, were presented in the United States Senate. Immediately the letter of Governor Bullock and the memorial of the negro convention were also presented. These documents, seconded by a speech from a Senator dwelling on the fact that Georgia was under “rebel control,” secured the reference of Hill’s credentials to the committee on the judiciary.[183]This committee on January 25, 1869, recommended that Hill be not admitted to the Senate.[184]

The reason for this recommendation, said the committee’s report, was that Georgia had failed to comply with the requirements of the Omnibus Act, and so was not yet entitled to representation in Congress. The failure here referred to was not that alleged by Bullock—that the members of the legislature had not taken the Test Oath—but the failure of the two houses to exclude persons disqualified by the Fourteenth Amendment. The Omnibus Act had provided that Georgia should be entitled to representation in Congress when her legislature had “duly” ratified the Fourteenth Amendment. The worddulymeantin a certain manner—namely, the manner required by the rest of the act. Thefailure to exclude the disqualified members was a departure from this manner.

We saw in Chapter V. that each of the committees appointed by the Georgia legislature in July to investigate the eligibility of members was divided, that both houses voted that all were eligible in the face of detailed evidence to the contrary, that the decision of the lower house contradicted the majority of its committee, and that Meade accepted the decision rather for the sake of convenience and finality than because it was indisputably correct. On these facts and on some independent investigation the Senate judiciary committee based its belief that the legislature had failed to obey the Omnibus Act in this respect.

Trumbull, of this committee, submitted a minority report. He admitted that the decision of the legislature may have been incorrect. But he protested that if the United States government intended to regard the presence of half a dozen ineligible members in a body of two hundred and nineteen as entirely vitiating the action of the legislature, it should have taken this stand at first. If at first it had, through its representative, Meade, overlooked the irregularity as a trifle, it seemed only just to continue to overlook it, and not to make it now the occasion for augmenting the turmoil in the state by fresh interference.

But the majority rejoined that there were very good reasons for not overlooking the irregularity. It was not a mere trifling departure from the letter of the act of Congress, it was a violation of the spirit of that act. “The obvious design” of the Omnibus Act “was to prevent the new organization from falling under the control of enemies of the United States.” The expulsion of the negroes showed that that design had been frustrated and that the government was under “rebel control;” it showed a “common purpose to ... resist the authority of the United States.” Moreover, the“disorganized condition of society” in the state made it necessary for the federal government to intervene again in Georgia, not only to vindicate its law, but to preserve order.

The protest of Trumbull is significant as an early sign of the growth within the Republican party of an opposition to the prolongation of Congressional interference with the southern state governments.

The report of the judiciary committee was not acted upon, and thus the Senate avoided a categorical decision. But Hill was not admitted. A number of bills relating to Georgia were introduced; a bill “to carry out the Reconstruction Acts in Georgia” by Sumner,[185]a bill to repeal the act of June 25, 1868, in so far as it admitted Georgia, and to provide for a provisional government in that state, by Edmunds,[186]and others. All of these soon lapsed.

Meanwhile, in the House of Representatives the committee on reconstruction had been instructed to examine the public affairs of Georgia and to inquire what measures ought to be taken regarding the representatives of Georgia in the House.[187]Many citizens of Georgia, black and white, testified before the committee.[188]Among them Governor Bullock was conspicuous, advocating the enforcement of the Test Oath qualification—a fact which aroused great indignation in the state.

The doubtful position in which Georgia now hung raised the question, what should be done with her electoral votes in February, 1869? Congress had passed a joint resolution on July 20, 1868, to the effect that none of the states affected by the Omnibus Act should be entitled to vote in the Electoral College in 1869 unless at the time for choosing electors it had become entitled to representation inCongress.[189]As February 10, the day for counting the votes, approached, it was considered desirable, in order that the ceremony might pass off smoothly, that the Senate and the House should agree by a special rule what should be done with Georgia’s votes. Now, the Senate could not agree to a rule declaring that the votes should be counted, for that would imply that the state had become entitled to representation in Congress, and the Senate had refused to admit Hill. But the House could not concur in declaring that the votes should not be counted; for that would imply that the state had not become entitled to representation in Congress, and the House had admitted seven Representatives from the state. It was therefore agreed by a concurrent resolution passed February 8, that at the count of the electoral votes, in case the Georgia votes should be found not to affect the result essentially (which it was well known would be the case), then the presiding officer should make the following announcement:

Were the votes presented as of the state of Georgia to be counted, the result would be for —— for President of the United States, — votes; if not counted, for ——, for President of the United States, — votes; but in either case —— is elected President of the United States;

and a similar announcement of the votes for Vice-President.[190]Accordingly, on February 10, amid the wildest uproar, caused by the blunders of a perplexed chairman and the violent protest of a group of Representatives, led by Butler, against the execution of the special rule, which had been rushed through the House without their knowledge, it was announced that the electoral vote was as follows:

and that in either case Grant and Colfax were elected.[191]

On March 5, the first day of the forty-first Congress, the House of Representatives was able to get rid of the Georgia Representatives on a technicality. The same delegation which had represented Georgia since July, 1868, appeared again to finish its supposed term. Their credentials failed to state to what Congress they had been elected, but authorized them to take seats in the House of Representatives according to the ordinance of the Georgia constitutional convention passed March 10, 1868. Now, this ordinance provided that all the public officers who should be elected on April 20 should enter on their duties as soon as authorized by Congress or by the general commanding the military district, but should continue in the same as long as they would if elected in the November following.[192]These Congressmen, then, were elected to serve as if elected in November, 1868, that is, they were elected members of the forty-first Congress. But they had already served several months in the fortieth. If they should serve through the forty-first they would exceed the constitutional term. The convention of Georgia could make the first term of all state officers longer than the regular term subsequently to obtain; it could not so lengthen the term of members of the Congress of the United States. The credentials were referred to the committee of elections, and the House was thus relieved of the presence of the Georgia representatives, which would have been an embarrassment in the subsequent proceedings.[193]

Several bills relating to Georgia were then introduced, which, though they were not advanced very far, are worth noticing.[194]Their titles indicate the purpose “to enforce the Fourteenth Amendment.” Now, the Fourteenth Amendment consists principally of prohibitions on states; it could not be enforced in Georgia unless Georgia was a state. Georgia had (it was assumed) admitted to her legislature men subject to the disqualifications of the Fourteenth Amendment, and had excluded men from the legislature on the ground of color, thus denying the equal protection of the laws to citizens. The latter act had been done after the Fourteenth Amendment went into effect (July 28, 1868[195]), the former before, but its effect continued. If Georgia was a state, then, she had violated the amendment, and Congress might correct these two acts by virtue of its power to enforce the amendment. If Georgia was not a state, she had not violated the Fourteenth Amendment, but her acts were subject to correction by Congress, because her government was “provisional only.” If, therefore, Congress proposed to enforce the Fourteenth Amendment in Georgia, it acknowledged that Georgia was a state, and so debarred itself from any interference not necessary to enforce that Amendment. If it proposed to interfere simply as with a provisional government, there was no such limitation.

The bills of the first session of the forty-first Congress proposed to enforce the Fourteenth Amendment. To secure the enforcement of the disqualification clause they provided that each member of the legislature should be required to take an oath saying that he was not disqualified by the amendment, and that those who did not so swear should be excluded. To secure equal rights to the colored legislators they provided that all persons elected to the legislature(according to General Meade’s announcement of the result of the election of 1868) who should take the test oath required should be admitted, and that the expulsion of the negroes should be declared void. The federal military authority was to assist in executing these measures if requested by the governor. These measures, it will be observed, were only such as might legally be taken regarding Massachusetts if it violated the Fourteenth Amendment.

At the next session of Congress, beginning in December, 1869, the policy of enforcing the Fourteenth Amendment was abandoned for the alternative policy of legislating for a provisional government. The reason for the change was an emergency in which the Republican Politicians found themselves. In the previous February Congress had passed the joint resolution proposing the Fifteenth Amendment. By December it seemed certain that the number of ratifying states would fall short of the required three-fourths by just one, unless Congress could prevent it.[196]Georgia furnished the means of preventing it. In March her legislature had rejected the proposed amendment.[197]It could now be forced to ratify and thus complete the necessary majority. Georgia must then be treated not as a state which had violated the Fourteenth Amendment, but as a provisional organization subject to the uncontrolled will of Congress. A bill was accordingly prepared containing the same provisions as the bills of the preceding session, but adding this clause: “That the legislature shall ratify the Fifteenth Amendment before Senators and Representatives from Georgia are admitted to seats in Congress.” In accordance with its different legal basis the bill was entitled: “An act to promote the reconstruction of the state of Georgia.”

Little need be said of the manner in which this bill waspassed. The usual partisan abuse prevailed on both sides. The Democrats made a remarkable opposition, led by Beck of Kentucky.[198]The Republicans were aided by a message from President Grant urging the intervention of Congress,[199]by the report of the reconstruction committee on affairs in Georgia,[200]and by a report from General Terry, who was stationed in the Department of the South, alleging that disorder was rampant in Georgia and the need of further military government by federal authority imperative.[201]Terry’s superior officer, General Halleck, added a postscript to Terry’s report to the effect that Terry was mistaken, that the disorder in Georgia was much less than was commonly believed, and that federal interference was highly inadvisable.[202]Aided by the report and undeterred by the postscript, the Republicans discoursed of “rebel control” and “murder” with unprecedented effect. Butler said that Congress must act instantly; if action on the bill is postponed, he said, “the rest of the Republican majority of that state may be murdered, even during Christmas week, when the Son of God came on earth to bring peace and good will to man.”[203]

The bill became law on December 22, 1869.[204]Congress thus decided at last to adopt the opinion of the Senate judiciary committee, that Georgia had not become a state through the Omnibus Act. General Meade, in declaring the contrary, had been mistaken. Bullock, in calling himself governor, had been mistaken. The House of Representatives, in admitting members sent from Georgia, had beenmistaken; they werede factomembers, but had no legal right there.[205]The legal basis of the act of December 22 was then the same as that of the original Reconstruction Acts.

The question which had been raised in the debates on these acts—What legal effect could the action of a body not the legislature of a state have on the adoption of an amendment to the constitution?—was raised again here. Some of the Republicans argued that such action could have no effect and should not be required.[206]Under these circumstances there was a more earnest effort than any heretofore made to defend such a requirement. It was answered: True, the body which will ratify the amendment in Georgia will not be a state legislature at the time; but it will later become a state legislature, and then by relation the ratification will be imputed to the state legislature and will thus have legal effect. Relation, an operation known to private law, had been applied to constitutional law in several previous cases, in order to give to acts done by the legislatures of territories the same effect as if they had been done after statehood was obtained.[207]The ratification by Georgia would be valid by relation.[208]

THE EXECUTION OF THE ACT OF DECEMBER 22, 1869, AND THE FINAL RESTORATION

Before relating the manner in which the act of December 22, 1869 (which we shall call the Reorganization Act), was executed, we must mention its provisions in more detail than we did in the last chapter. It first “authorized and directed” the governor by proclamation to summon “forthwith” all persons elected to the legislature in April, 1868, according to Meade’s announcement of the result of the election then held,[209]to meet in special session “on some day certain.” The act continued:

and thereupon the said general assembly shall proceed to perfect its organization in conformity with the Constitution and laws of the United States, according to the provisions of this act.

When the legislature was assembled, every person claiming to be a member should take a test oath prescribed in the act, to the effect that he had never been a member of Congress or of a state legislature, nor held any civil office created by law for the administration of any general law of a state, or for the administration of justice in any state, or under the laws of the United States, nor served in the military or naval forces of the United States as an officer, and thereafter engaged in or supported hostilities against the United States; each person should take this oath or else an oath (also prescribedverbatim) that he had been relieved from disability by Congress according to section 3 of theFourteenth Amendment. The exclusion on the ground of color of any person elected and otherwise qualified, the act declared “would be illegal and revolutionary,” and was “prohibited.” The act directed the President to use force in executing the act upon application from the governor.

The process ordered by the act seems simple and obvious, but the general of the army deduced much from it not apparent on its face. This act, he reasoned, implies that the Georgia government is provisional, and has never ceased to be so since March 2, 1867. And in that case the act of March 2, 1867, has never ceased to operate as to Georgia, since by its own terms it is to remain in force in each “rebel state” until each respectively has been “by law admitted to representation in the congress of the United States.” Georgia has not been so admitted, since she did not comply with the Omnibus Act. Therefore the Reconstruction Acts are still in force in Georgia, and the general orders of July 28, 1868, declaring the Third Military District abolished were a mistake. Accordingly those orders were countermanded by the general of the army on January 4, 1870, and General Terry, a prominent advocate, as we have seen, of the revival of military government in Georgia, was placed in command of the remnant of the Third Military District.[210]

The War Department’s deduction from the Reorganization Act of authority to institute again the system of the Reconstruction Acts came a month or two later under the consideration of the Senate judiciary committee, and was pronounced a gratuitous perversion of the act last passed. That act implied, to be sure, that the Georgia government was provisional; but it was plainly intended not to revive but to supersede the former regulations regarding that government. The purpose of the Reorganization Act was simply that thelegislature should reorganize itself and ratify the Fifteenth Amendment. To this purpose military government had no relation. The Reconstruction Acts had not expired according to their own provisions as to Georgia, it was true, but they had been repealed by the Reorganization Act. This was further proved by the latter’s provision that military force should be used “upon the application of the governor.” The Reorganization Act, said the committee, “invokes military action in what it provides shall be done, and no more.”[211]Unfortunately this opinion was delivered some time after the theory which it demolished had been in practical operation.

Terry, having received therôleof military governor, played it as the true heir to the power of his great predecessors. He removed from office three sheriffs and a county ordinary and appointed successors.[212]He intervened in eight private controversies and composed them with a strong hand.[213]In two cases before the state courts he substituted his command for the regular process.[214]Still more apparent was the official character which he had assumed, in his conduct toward the legislature. Possessing the power wielded by Pope and Meade, he could issue any orders he pleased to that body. For this reason, and because he was in sympathy with them, the Georgia Republicans ardently embraced and tenaciously clung to the theory that he was not a mere assistant in executing the Reorganization Act, but a military governor under the Reconstruction Acts.

On December 22, 1869, Governor Bullock issued his proclamation (which he signed “Rufus B. Bullock, Provisional Governor”), summoning the men elected to the legislature in 1868 to meet in Atlanta on January 10 following.[215]Thisduty, besides that of calling on the President for aid if he saw fit, was the only one expressly entrusted to Bullock by the Reorganization Act. Another one, however, was deduced by the following process of reasoning: The legislature can do nothing before its members are qualified according to the act. Since it can do nothing, it cannot even organize itself. But it is the purpose of the act that the legislature be organized. Therefore some one else must be intended to organize it. This duty naturally belongs to the governor, since the cognate duty of convening the body is imposed on him. In accordance with this reasoning, Bullock appointed a temporary clerk for each house, who should call the house to order and preside until all the members should be qualified or declared disqualified, by taking or failing to take one of the test oaths of the Reorganization Act.[216]This appointment of Bullock rested not only upon the reasoning stated above, but upon the approval of Terry, who, whether the reasoning was correct or not, could do, or order to be done, to the legislature anything he chose.[217]

When the legislature convened on January 10, each house was called to order by its temporary clerk, who proceeded to call the roll of names announced by Meade after the election of 1868, for the administration to each person of one of the required test oaths. On the same day the upper house completed the roll call and the swearing in of members, and effected a permanent organization. A Republican (Conley) was elected president by a large majority. On assuming the chair he delivered an oration, the spirit of which may be perceived from the following sentence: “The government has determined that in this republic, which is not, never was, and never can be, a democracy—that in this republic Republicans shall rule.”[218]

Far different was the course of events in the lower house. When that house assembled it found one Harris in the chair. Forgetting that his appointment had been indorsed by Terry and that he was, therefore, the virtual agent of a military governor who had the power to do anything he chose to the legislature, the Conservatives raised objection to his presiding and attempted to elect a temporary chairman in the usual way. This attempt precipitated a violent scene in the house, but was unsuccessful. Harris kept his seat and ordered the roll call for the swearing in of members to proceed. The names of seventy-eight persons were called and as many of these as were present were sworn in. At this point, the journal records, “the clerkpro tem.announced that the house would take a recess” until the next day. This the house did.[219]On January 11 and 12, the same proceedings occurred, the swearing in continuing until it was suspended and the house adjourned by the “clerkpro tem.”[220]

Without the theory that the Reconstruction Acts were still in force these proceedings in the lower house would have constituted the plainest illegality. But if Terry was a military governor and Harris his agent, they were legal. Though the Senate judiciary committee later declared this a false interpretation of the law, yet it was the official interpretation of the War Department, as we saw by the order appointing Terry.[221]The War Department had a right to decide what the Reorganization Act, which it was to aid in executing, meant. Its decision, whatever its character, was never officially overruled. Therefore the proceedings in the legislature were officially regular.

Before the legislature met, the Conservative papers had published an article by a state judge on the meaning of the first test oath of the Reorganization Act. It concernedespecially the phrase: “any civil office created by law for the administration of any general law of a state.” It was argued that there were many state offices not included in this phrase—among them those of mayor, alderman and state librarian. Since these offices were not “for the administration of any general law,” but only for that of special or local law, former occupants of them who had supported the Confederacy could take the present test oath.[222]This construction would give an advantage to the Conservatives. To counteract it, Bullock applied to the attorney general for an official interpretation. That officer (Farrow by name) responded with a very reasonable opinion. He admitted that officers with merely local functions were not included in the phrase in question, but pointed out that many municipal officers had the powers of a justice of the peace. In such cases they were charged with the administration of general law and were included in the phrase. The state librarian, said Farrow, executed general law and was included.[223]

After the swearing in of members had gone on in the house of representatives, as we have said, it was believed by the Radicals that some Conservatives were acting upon the judge’s interpretation and disregarding the attorney general’s, and that others had sworn or intended to swear falsely who were debarred even by the former. Ordinarily, if a man intends to swear falsely to a test oath there is no way of preventing him. In the existing state of public opinion, prosecution for perjury after the oath of office was taken was impossible. But Georgia had a military governor. By issuing orders he could prevent men whom he believed ineligible from swearing and could unseat those whom he believed to have sworn falsely. This Terry decided to do.

On January 13 he detailed a board of soldiers to investigate the cases of twenty-one members elect whose eligibilitywas questioned.[224]This board sat for two weeks, and found five men ineligible[225]and eleven eligible.[226]Terry accordingly forbade the five, and ordered the eleven, to be sworn in. The remaining five of the twenty-one, together with nineteen others, confessed ineligibility by filing with Bullock application for the removal of their disabilities by Congress. These also Terry forbade to be sworn in.[227]The actions and the decision of the board of inquiry were pronounced fair and honorable even by the Conservatives.[228]The nineteen applications for Congressional grace were said to have been procured by the Radicals through intimidation and fraud.[229]If the applicants were in fact ineligible but intended nevertheless to take the oath, then we must admire the cleverness of the Radicals in dissuading them, by whatever means they did it. If they used intimidation and fraud, their means were no worse than the end sought by their victims—the frustration of a law by perjury. On the other hand, if nineteen Conservatives who were eligible were induced by Radicals to petition for the removal of ineligibility, the fact may excite disapproval of the Radicals, but hardly pity for the Conservatives.

On January 13, when the board of inquiry was appointed, the “clerkpro tem.” of the lower house, by order of Bullock countersigned by Terry, had declared the house adjourned till January 17, to await the decision of the board.[230]On the 17th the house met and listened to the reading of two orders from Bullock indorsed by Terry; the one directing the state treasurer to issue fifty dollars to each member of the house,the other ordering the house to adjourn till January 19.[231]On the 19th the house met, and after one man had been sworn in was adjourned in the same manner till the 24th.[232]On the 24th it met and after two men had been sworn in was again adjourned by order of the governor.[233]On the morning of the 25th it met and was adjourned till afternoon. In the afternoon it was adjourned as soon as it had met till the next day. To the countersignature of Terry in this case was added the promise that this was the last adjournment of the series, since the board had now rendered so much of its decision as related to members of the lower house. The house was therefore ordered to swear in, on the next day, all the remaining members elect except those found or confessed ineligible, and to elect its permanent officers.[234]On January 26 this order was complied with; the Radical candidate for chairman was elected by a large majority, and the redoubtable “clerkpro tem.,” having presided for the last time, retired.[235]

The reorganized legislature on February 2 complied with the remaining requirements of the Reorganization Act by ratifying the Fifteenth Amendment. On the advice of Bullock it also repassed the resolutions of July, 1868, required by the Omnibus Act. This was not necessary to re-admission. It is true, the requirements of the Omnibus Act had, by the hypothesis of the Reorganization Act, never been “duly” fulfilled. But the Omnibus Act had been superseded by other legislation, which made new requirements and did not renew the old. The renewal of the unfulfilled requirements had been discussed in Congress and rejected.[236]Nevertheless, the resolutions were passed gratuitously.[237]

The Omnibus Act had definitely said that Georgia shouldbe “entitled and admitted to representation in Congress as a state of the union when the legislature” had complied with the conditions mentioned in the act. The Reorganization Act was not so definite. It said; “The legislature shall ratify the Fifteenth Amendment ... before Senators and Representatives from Georgia are admitted to seats in Congress.” This might be construed as granting title to representation as a state as soon as the Fifteenth Amendment should be ratified, or as merely requiring the ratification and making no definite provision as to restoration but leaving that subject to be provided for by another act. The latter construction was adopted by the Georgia Radicals, since it prolonged the tenure of their military governor. It followed from this construction that the state government was still “provisional” and could not proceed with its business like a regular state government. So after electing United States Senators (the election of July, 1868, being regarded as invalid,[238]and the present election probably being designed to become valid by relation), the legislature adjourned until April 18, to await Congressional action.[239]In April Congress had taken no action, and the legislature, after sitting a fortnight, took another recess of two months.[240]Meantime the theory of military government had been faithfully observed. Though the legislature was only provisional, it could legislate with Terry’s permission. It passed a stay law on February 17, and asked Terry to enforce it.[241]On May 2 it passed revenue and appropriation acts,[242]but not before Terry had informed it through the governor that he would allow those acts to have the validity of regularly issued military orders.[243]

Whatever may have been the merits of the construction ofthe Reorganization Act adopted by the War Department, it is certain that the proceedings taken under it greatly astonished those who had passed the act. On January 19 the House of Representatives adopted a resolution requesting the general of the army to inform it by what authority three United States soldiers were acting as a committee in the legislature of Georgia.[244]On February 4 the Senate asked for official information regarding the proceedings had under the Reorganization Act.[245]The facts disclosed in response to this request created such surprise that the Senate directed the judiciary committee to inquire and report whether the act had been complied with.[246]The answer of the committee, as we saw in the early part of the chapter, was that the act had been misconstrued and violated. The appointment of presiding officers by the governor, the acts of those officers, the revival of the military governorship, and in particular the interference of Terry in the organization of the legislature—these, said the committee, were wholly unlawful. But though unlawful they had resulted in no substantial injustice, since all the men debarred by Terry were undoubtedly ineligible. And in any case a general state election was approaching, so that if any injustice had been done it would soon be righted. For these reasons the committee recommended that Congress undertake no more legislation for Georgia, but admit her representatives to each house as soon as possible.[247]

The committee believed that the Reorganization Act was to be construed as a law entitling Georgia to representation in Congress as soon as she had ratified the Fifteenth Amendment. This opinion was held by many Republicans, who had followed Trumbull’s example and who appeared fromthis time on as opponents of further Congressional interference in the South. The radical Republicans, however, led by Butler—those Republicans characterized by a Republican paper of the time as “the screeching wing” of the party[248]—insisted that Georgia must be admitted, as the first Reconstruction Act had said, “by law,” and that no law to that effect had been passed. The reason why this argument was urged was that the passage of a new act for restoring the state would give an opportunity to annex other provisions besides the declaration of restoration. The particular provisions designed to be annexed were for the purpose of prolonging the term of the present state government.

On February 25 Butler introduced the bill to admit Georgia.[249]One of its sections was as follows:

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