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 const.i.tutional convention pa.s.sed 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 const.i.tutional 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 embarra.s.sment 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 t.i.tles indicate the purpose "to enforce the Fourteenth Amendment." Now, the Fourteenth Amendment consists princ.i.p.ally of prohibitions on states; it could not be enforced in Georgia unless Georgia was a state. Georgia had (it was a.s.sumed) 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 a.s.sist in executing these measures if requested by the governor. These measures, it will be observed, were only such as might legally be taken regarding Ma.s.sachusetts 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 pa.s.sed 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 ent.i.tled: "An act to promote the reconstruction of the state of Georgia."

Little need be said of the manner in which this bill was pa.s.sed. 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 G.o.d 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 been mistaken; they were _de facto_ members, 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 const.i.tution?--was raised again here. Some of the Republicans argued that such action could have no effect and should not be required.[206] Under these circ.u.mstances 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 const.i.tutional 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]

CHAPTER VIII

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 a.s.sembly shall proceed to perfect its organization in conformity with the Const.i.tution and laws of the United States, according to the provisions of this act.

When the legislature was a.s.sembled, 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 prescribed _verbatim_) that he had been relieved from disability by Congress according to section 3 of the Fourteenth 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 inst.i.tute again the system of the Reconstruction Acts came a month or two later under the consideration of the Senate judiciary committee, and was p.r.o.nounced a gratuitous perversion of the act last pa.s.sed. 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 the legislature 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 the _role_ of 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 subst.i.tuted his command for the regular process.[214] Still more apparent was the official character which he had a.s.sumed, 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 a.s.sistant 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] This duty, 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 a.s.suming 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 a.s.sembled 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 clerk _pro 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 "clerk _pro tem._"[220]

Without the theory that the Reconstruction Acts were still in force these proceedings in the lower house would have const.i.tuted 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 concerned especially 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 munic.i.p.al 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 eligibility was 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 p.r.o.nounced 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 pet.i.tion 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 "clerk _pro 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 "clerk _pro 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 repa.s.sed 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 pa.s.sed gratuitously.[237]

The Omnibus Act had definitely said that Georgia should be "ent.i.tled 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 t.i.tle 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 pa.s.sed a stay law on February 17, and asked Terry to enforce it.[241] On May 2 it pa.s.sed 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 of the Reorganization Act adopted by the War Department, it is certain that the proceedings taken under it greatly astonished those who had pa.s.sed 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 ent.i.tling 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 from this 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 pa.s.sed. The reason why this argument was urged was that the pa.s.sage 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:

That the power granted by the const.i.tution of Georgia to the general a.s.sembly to change the time of holding elections ... shall not be so exercised as to postpone the election for members of the next general a.s.sembly beyond the Tuesday after the first Monday in November in the year 1872.

The power here referred to was that conferred by Article III., section 1, of the state const.i.tution;

The election for members of the general a.s.sembly shall begin on Tuesday after the first Monday in November of every second year ...

but the general a.s.sembly may by law change the time of election, and members shall hold until their successors are elected and qualified.

The const.i.tutional term of the present legislature (except of one-half of the senators, who held four years) would expire in November, 1870. But this section of the const.i.tution, Butler pointed out, would enable the legislature to postpone the election and perpetuate its power. This grave danger he proposed to remove by the clause of his bill above quoted. In order to prevent the legislature from prolonging its tenure forever, he proposed, not to forbid prolongation, but to allow it for two years.

I also propose [he said] by this [clause] to give to the present State officers of Georgia a two years' term of office in that state as a state in this Union.

That Congress should pose as the defender of the people of Georgia against a usurping legislature, and at the same time by the guaranty of its approval encourage that legislature to double its const.i.tutional term--this was a conception of political genius which, independently of its realization, should make Butler immortal.

The moderate Republicans of the House of Representatives were willing, for the sake of settling doubt, to pa.s.s a bill declaring Georgia restored, but were decidedly opposed the scheme to use the bill as a means of prolonging the tenure of the Georgia Radicals. An amendment to Butler's bill, known as the Bingham amendment, was offered, to the following effect:

... neither shall this act be construed to extend the official tenure of any officer of said state beyond the term limited by the const.i.tution thereof, dating from the election or appointment of such officer.[250]

The bill with this amendment pa.s.sed the House by a large majority on March 8.[251]

In the Senate the necessity of any bill and the propriety of the Bingham amendment were warmly debated for some weeks. Then the so-called Drake amendment was offered. It provided that whenever the legislature or governor of any state should inform the President of the existence within that state of a.s.sociations organized for the purpose of obstructing the law and doing violence to persons, then the President should send troops to that state, declare martial law, suspend the privileges of the writ of _habeas corpus_, and take such other military measures as he saw fit, and should levy the cost of the expedition on the people of the state.[252]

The propriety of grafting this general measure on a special bill like the present should not be discussed, it was said, in view of the pressing necessity of pa.s.sing it in some way, no matter how.[253] The debate thus complicated continued until April 19, when the bill went to the committee of the whole. There, the night being far spent, two entirely new amendments were suddenly offered. One commanded Georgia to hold a general election in the present year; the other declared that the existing government of Georgia was still "provisional" and provided that the Reconstruction Acts of 1867 should continue to be enforced there. These amendments were adopted by the committee. The Drake amendment was also adopted. Finally, the entire bill as it came from the house was stricken out.[254] Thus transformed so that, as a Senator said, "it would not be recognized by the oldest inhabitant," the bill was pa.s.sed by the Senate.[255]

The House of Representatives did not take up the bill again until June 23.

On June 24 it decided to insist on the pa.s.sage of the bill substantially as before pa.s.sed.[256] As a result of the conference following, the Senate yielded to the House. The bill became law on July 15, 1870. It said:

... It is hereby declared that the state of Georgia is ent.i.tled to representation in the Congress of the United States. But nothing in this act contained shall be construed to deprive the people of Georgia of the right to an election for members of the general a.s.sembly of said state, as provided for in the const.i.tution thereof.[257]

One would suppose that this act of July 15 should close the chapter; that it recognized Georgia as a state, and that henceforth all peculiar relations between Georgia and the federal government were at an end. The Georgia Radicals were able to avoid this conclusion. In a message to the legislature on July 18 the governor said that according to the act of March 2, 1867, the federal military power was to remain until the state was not only ent.i.tled to representation but actually represented in Congress. Section 5 of that act contained this language: