Part 4 (1/2)

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.