Part 2 (1/2)

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 a.s.sumed to have been p.r.o.nounced 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 partic.i.p.ate 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, pa.s.s certain laws, adopt certain resolutions in certain ways. The federal government can thus effect through its 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 subst.i.tute 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 pa.s.sed. 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 a.s.sume 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 diplomatic power. 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 pa.s.sing 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 pa.s.sage of the Reconstruction Acts may thus be regarded, from a legal point of view, as simply the subst.i.tution 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 const.i.tutional 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 pa.s.sage 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 Const.i.tution 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 states recognized by the Congress as lawfully ent.i.tled to do so, ... the same shall become thereby a part of the Const.i.tution.[81]

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

CHAPTER IV

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 spa.r.s.eness 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 ent.i.tle them to vote anywhere in the state.[85]

The election for deciding whether a const.i.tutional 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 ent.i.tled 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]

Number of registered voters in Georgia 188,647 Of these the negroes numbered 93,457 ” the white men[89] 95,214 Number of votes polled 106,410 ” ” for a convention 102,283 ” ” against a convention 4,127

The delegates elected were ordered to meet in convention on 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 const.i.tution which it framed more than met the demands of the Reconstruction Acts. A single citizens.h.i.+p was established for all residents of the state, in language borrowed from the Fourteenth Amendment to the federal Const.i.tution.[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 const.i.tution 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 const.i.tution 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 Reconstruction Acts 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 s.h.i.+ft 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 a.s.suming 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 few weeks 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]