Part 3 (1/2)

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

All persons hereafter elected or appointed to office in said military districts, under any so-called state or munic.i.p.al 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 April 20th 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 const.i.tution 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 const.i.tution), 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 their seats 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 of the 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 const.i.tution 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 const.i.tuted a military district, but should henceforth const.i.tute an ordinary military circ.u.mscription--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 const.i.tution.[155] On July 25, the seven congressmen-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.

CHAPTER VI

THE EXPULSION OF THE NEGROES FROM THE LEGISLATURE AND 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 governors.h.i.+p 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 a.s.sistance. At this point a G.o.d 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 const.i.tution. But negro office-holding was not so established expressly. As early as July 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 const.i.tution,[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 const.i.tution.[164] Therefore they had the right to hold office. It was true that the const.i.tution 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 const.i.tution was elected by 25,000 white and 85,000 colored men, and that that const.i.tution 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 word _citizens_ in 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 pa.s.sed 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 t.i.tle ”Of the Executive Department,”

and under the sub-head ”Regulations as to All Executive Offices and Officers.” Under the next t.i.tle ”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 circ.u.mstances, 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 inst.i.tute, 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 a.s.sistance.

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 formed according to 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 ent.i.tled 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.