Conclusion 109
Bibliography 111
LIST OF ABBREVIATIONS
A. A. C. = American Annual Cyclopaedia.
B. A. = Address of Bullock to the people of Georgia, a pamphlet dated
1872.
B. L. = Letter from Bullock to the chairman of the Ku Klux Committee,
published in Atlanta in 1871.
C. G. = Congressional Globe.
C. R. = Report of the State Comptroller.
E. D. = United States Executive Documents.
E. M. = Executive Minutes (of Georgia).
G. O. D. S. = General Orders issued in the Department of the South.
G. O. H. = General Orders issued from the headquarters of the army.
G. O. M. D. G. = General Orders issued in the Military District of
Georgia.
G. O. T. M. D. = General Orders issued in the Third Military District.
H. J. = Journal of the Georgia House of Representatives.
H. M. D. = United States House Miscellaneous Documents.
J. C., 1865 = Journal of the Georgia Constitutional Convention of 1865.
J. C., 1867-8 = Journal of the Georgia Constitutional Convention of
1867-8.
K. K. R. = Ku Klux Report (Report of the Joint Committee of Congress on
the Conditions in the Late Insurrectionary States, submitted at the 2d
session of the 42d Congress, 1872).
M. C. U. = Milledgeville _Confederate Union_.
M. F. U. = Milledgeville _Federal Union_.
R. C. = Reports of Committees of the United States House of
Representatives.
R. S. W. = Report of the Secretary of War.
S. D. = United States Senate Documents.
S. J. = Journal of the Georgia Senate.
S. L. = Session Laws of Georgia.
S. R. = United States Senate Reports.
S. O. M. D. G. = Special Orders issued in the Military District of
Georgia.
S. O. T. M. D. = Special Orders issued in the Third Military District.
U. S. L. = United States Statutes at Large.
CHAPTER I
PRESIDENTIAL RECONSTRUCTION
The question, what political disposition should be made of the Confederate
States after the destruction of their military power, began to be
prominent in public discussion in December, 1863. It was then that
President Lincoln announced his policy upon the subject, which was to
restore each state to its former position in the Union as soon as
one-tenth of its population had taken the oath of allegiance prescribed in
his amnesty proclamation and had organized a state government pledged to
abolish slavery. This policy Lincoln applied to those states which were
subdued by the federal forces during his administration, viz., Tennessee,
Arkansas and Louisiana. When the remaining states of the Confederacy
surrendered in 1865, President Johnson applied the same policy, with some
modifications, to each of them (except Virginia, where he simply
recognized the Pierpont government).
Before this policy was put into operation, however, an effort was made by
some of the leaders of the Confederacy to secure the restoration of those
states to the Union without the reconstruction and the pledge required by
the President. After the surrender of Lee's army (April 9, 1865), General
J. E. Johnston, acting under the authority of Jefferson Davis and with the
advice of Breckenridge, the Confederate Secretary of War, and Reagan, the
Confederate Postmaster General, proposed to General Sherman the surrender
of all the Confederate armies then in existence on certain conditions.
Among these was the condition that the executive of the United States
should recognize the lately hostile state governments upon the renewal by
their officers of their oath of allegiance to the federal Constitution,
and that the people of the states so recognized should be guaranteed, so
far as this lay in the power of the executive, their political rights as
defined by the federal Constitution. Sherman signed a convention with
Johnston agreeing to these terms, on April 18. That he intended by the
agreement to commit the federal government to any permanent policy is
doubtful. But when the convention was communicated for ratification to his
superiors at headquarters, they showed the most decided opposition to
granting the terms proposed even temporarily. The convention was
emphatically disavowed, and on April 26 Sherman had to content himself
with the surrender of Johnston's army only, agreed to on purely military
terms.[1]
Georgia formed a part of the district under the command of General
Johnston. As soon, therefore, as the news of the surrender could reach
that state, hostilities there ceased. On May 3, Governor Brown issued a
summons for a meeting of the state legislature to take place on May 22, in
order that measures might be taken "to prevent anarchy, restore and
preserve order, and save what [could be saved] of liberty and
civilization."[2] At a time of general consternation, when military
operations had displaced local government and closed the courts in many
places, when the whole population was in want[3] through the devastation
of the war or through the collapse of the Confederate currency which
followed the collapse of the Confederate army,[4] the need of such
measures was apparent.
The calling of the legislature incurred the disapproval of the federal
authorities for two reasons. First, they regarded it as an attempt to
prepare for further hostilities, and they accordingly arrested Brown,
carried him to Washington, and put him in prison.[5] Second, in any case,
as the disavowal of the convention of April 18 had shown, they did not
intend to allow the state governments of the South to resume their regular
activities at once, and accordingly the commander of the Department of the
South issued orders on May 15, declaring void the proclamation of Joseph
E. Brown, "styling himself Governor of Georgia," and forbidding obedience
thereto.[6]
The federal army now took control of the entire state government.
Detachments were stationed in all the principal towns and county seats,
and the commanders sometimes removed the civil officers and appointed
others, sometimes allowed them to remain, subject to their direction.
Military orders were issued regarding a wide range of civil affairs, such
as school administration, sanitary provisions, the regulation of trade,
the fixing of prices at which commodities should be sold, etc.[7] The
provost marshal's courts were further useful, to some extent, as
substitutes for the state courts, whose operations were largely
interrupted.[8] Directions to the officers of the Department admonished
them that "the military authority should sustain, not assume the functions
of, civil authority," except when the latter course was necessary to
preserve the peace.[9] This admonition from headquarters, issued after the
President's plan for reinstating Georgia in the Union had been put into
operation, reflects his desire for a quick restoration of normal
government.
President Johnson announced his policy toward the seceded states in his
proclamation of May 29, 1865, regarding North Carolina. By it a
provisional governor was appointed for that state, with the duty of making
the necessary arrangements for the meeting of a constitutional convention,
to be composed of and elected by men who had taken the oath of allegiance
prescribed by, the President's amnesty proclamation of the same date, and
who were qualified voters according to the laws of the state in force
before the war. The proclamation did not state what the President would
require of the convention, but we may mention by way of anticipation that
his requirements were the revocation of the ordinance of secession, the
construction of a new state government in place of the rebel government,
the repudiation of the rebel debt, and the abolition of slavery within the
state. The provisional governor was further authorized to do whatever was
"necessary and proper to enable [the] loyal people of the state of North
Carolina to restore said state to its constitutional relations to the
federal government."[10]
For each of the states subdued in 1865, except Virginia, a provisional
governor was appointed by a similar proclamation. On June 17, James
Johnson, a citizen of Georgia, was appointed to the position in that
state.[11] On July 13th, he issued a proclamation providing for the
election of the convention. Delegates were distributed on the basis of the
legislature of 1860; the first Wednesday in October was set for the
election, and the fourth Wednesday in the same month for the meeting of
the convention.[12] Next, the provisional governor undertook the task of
securing popular support to the programme of restoration. To encourage
subscription to the amnesty oath (a prerequisite to voting for delegates
to the convention) he removed the disagreeable necessity of taking it
before the military authorities by directing the ordinary and the clerk of
the Superior Court of each county to administer it.[13] He made many
speeches throughout the state urging the citizens to take the amnesty
oath, to enter earnestly into the election of the convention, and to
submit quietly to the conditions imposed by the President.
His efforts were very successful. This was partly due to the place he held
in public estimation. He was a lawyer widely known and universally
respected. It was also partly due to the attitude of Governor Brown.
Brown, after a confinement of several weeks in prison at Washington,
secured an interview with President Johnson, and satisfied the President
that his object in calling the legislature was simply public relief, that
he had no intention to prolong the war, but calmly submitted to the fact
that his side was defeated.[14] This explanation and the spirit displayed
were so satisfactory to Johnson that Brown was released, and permitted to
return to Georgia. His return, remarked Johnson, "can be turned to good
account. He will at once go to work and do all he can in restoring the
state."[15] This prediction proved correct. The war governor of Georgia
became the type of those Secessionists who practised and counseled quiet
acceptance of the terms imposed by the conqueror, as the most sensible and
advantageous course. On June 29th he issued an address to the people of
Georgia, resigning the governorship, and advising acquiescence in the
abolition of slavery and active participation in the reorganization of the
state government according to the President's wishes.[16] The assumption
of this attitude by Brown grieved and offended some of his fellow
Secessionists. But the majority shared his opinion. The provisional
governor was welcomed, and his speeches approved on all sides.[17] The
result was that the convention which met on October 25th was a body
distinguished for the reputation and ability of its members.
The convention was called to order by the provisional governor, and chose
as permanent chairman Herschel V. Johnson.[18] Then a message from the
provisional governor was read, suggesting certain measures of finance and
other state business requiring immediate action, suggesting also certain
alterations in the state judiciary, but especially pointing out the chief
objects of the convention, viz., the passage of those acts requisite for
the restoration of the state.[19] These measures the convention quickly
proceeded to pass. On October 26th it repealed the ordinance of secession
and the ordinance ratifying the Confederate constitution;[20] by paragraph
20 of article I. of the new constitution it abolished slavery in the
state; and on November 8th, the last day of the session, it declared the
state debt contracted to aid the Confederacy void.[21] The convention
provided for a general state election on the following November 15th, and
to expedite complete restoration, anticipated the regular work of the
legislature by creating congressional districts, in order that Georgia's
representatives might be chosen at that election.[22]
One thing now remained to be done before the President would withdraw
federal power and leave the state to its own government, viz.,
ratification of the Thirteenth Amendment. The legislature elected on
November 15th assembled on December 4th.[23] The provisional governor,
according to the President's directions,[24] laid the Thirteenth Amendment
before it. The Amendment was ratified on December 9th.[25] After this the
provisional governor was relieved, the governor elect was inaugurated
(December 14th), and the President sent a courteous message of recognition
to the latter.[26]
Thus the President, having reconstructed the state government, had
restored Georgia to statehood so far as its internal government was
concerned. There remained only the admission of its representatives to
Congress to complete the restoration.
CHAPTER II
THE JOHNSON GOVERNMENT
From the conduct of the state governments formed in Georgia and the other
southern states under the direction of President Johnson, the public
opinion of the North drew conclusions regarding three things; the
disposition of the people represented by those governments toward the
emancipated slaves, their attitude toward the cause for which they had
fought, and their feeling toward the power which had subdued them. This
chapter treats the Johnson government of Georgia from the same points of
view.
Whatever may have been the prevailing disposition of the white people
toward the slaves while slavery flourished, shortly before the close of
the war that disposition was characterized by benevolence and gratitude.
In spite of the opportunities of escape, and of plunder and other
violence, offered by the times, the slaves had acted with singular
faithfulness and devotion.[27] The gratitude of their masters even went so
far as to propose plans for the general education of the negroes.[28]
The close of the war and the advent of emancipation produced a change in
the conduct of the negroes, which in time produced a change in the
attitude of the white people. The negroes, from the talk which they heard
and did not understand, and from their ignorant imaginations, conceived
strange ideas of emancipation. They supposed it meant governmental
bounty, idleness, and wealth. They abandoned their work, wandered about
the country, collected in towns--in short, manifested a general
restlessness and demoralization. This caused alarm and apprehension among
the white people. There were other causes of friction between the two
races. Many negroes, on discovering that they were free, assumed what are
known as "airs;" and then as now, among things intolerable to a southern
white man a "sassy nigger" held a curious pre-eminence. The airs of the
negro and the wrath of the white man were both augmented by officious
members of the Freedmen's Bureau. Moreover, because the negroes had gained
by the humiliation of the South, they received a share of the venom of
defeat. Another element of discord was furnished by a particular part of
the white population, the so-called poor whites. These saw in the new
_proteges_ of the United States not only a rival laboring class, but a
menace to their social position, and hence assumed an attitude of jealousy
and hatred. Such were the conditions favorable to social disturbance which
followed emancipation. In the latter part of 1865 they had already begun
to produce their natural result. Violent encounters between negroes and
white men (in which the latter were almost always the aggressors) were
noticeably frequent.[29]
To this social demoralization was added economic distress and perplexity.
The devastation of the war had fallen with especial severity upon Georgia.
Worse still, the people seemed unable to repair the damage or to return to
productive activity. Planters seemed unable to adapt themselves to the new
economic conditions. Slavery, the system which they understood, was gone;
they used the new system with little success, all the less because of the
restlessness of the negroes.
Such were the conditions and dangers with which the Johnson government had
to deal as it best could. It was believed by northern statesmen that the
situation would be mastered by enfranchising the negroes and investing
them with a citizenship exactly equal to that of white persons.[30] The
Georgia constitution of 1865 made it clear that the Georgia law-makers
were not disciples of that school. That constitution confined the
electoral franchise to "free white male citizens."[31] It ordered the
legislature at its first session "to provide by law for the government of
free persons of color," for "guarding them and the state against any evil
that may arise from their sudden emancipation," and "for the regulation of
their transactions with citizens;" also "to create county courts with
jurisdiction in criminal cases excepted from the exclusive jurisdiction of
the Superior [county] Court, and in civil cases whereto free persons of
color may be parties," and to make rules "prescribing in what cases their
testimony shall be admitted in the courts."[32]
The legislation enacted in 1866 in the interest of the public peace and
order consisted of--
1. An apprentice law. By this it was made the duty of the judges of the
county courts to bind out minors whose parents were dead or unable to
support them as apprentices until the age of twenty-one. A master
receiving an apprentice under this law was to teach him a trade, furnish
him food, clothes, and medicine, teach him habits of industry, honesty,
and morality, teach him to read the English language, and govern him with
humanity. On default of any of these requirements a master was to be
fined. The judge having charge of this law might, on application from an
apprentice or an apprentice's friend, dissolve the contract on account of
cruelty on the part of the master. An apprentice at the end of his term
was entitled to an allowance from the master "with which to begin life."
The amount was left to the master's generosity, but if he offered less
than $100 the apprentice might complain to the court, which should then
fix the amount.[33]
2. A vagrancy law. Vagrancy was defined in the usual language of our
criminal codes. The penalty was heavier than these usually provide,
because the need of suppressing the vice was more urgent than usual. A
vagrant might be fined or imprisoned at the discretion of the court, or
sentenced to labor on the public works for not more than one year; or he
might, at the discretion of the court "be bound out to some person for a
time not more than one year, upon such valuable consideration as the court
may prescribe."[34]
3. Alterations in the penal laws. These alterations were of two
contrasting kinds. The penalty for burglary in the night, arson, horse
stealing and rape was changed from long imprisonment[35] to death,[36]
which, however, might be in every case commuted to life imprisonment.[37]
On the other hand, several hundred crimes, including all the species of
larceny except that mentioned above, were reduced from felonies to
misdemeanors, and the penalties from imprisonment in the penitentiary to
fine, imprisonment in the county jail, or whipping, at the discretion of
the court.[38] This mitigation of punishment was made in consideration of
the negroes' ignorance of the nature of their offences, due to the fact
that these had before been punished by their masters and not by the law.
Probably the capacity of the penitentiary was also considered.
To facilitate the transition from the old labor system to the new by
remedying in some degree the instability of the labor supply, the
legislature made it a crime to employ any servant during the term for
which he had contracted to work for another, or to induce a servant to
quit the service of an employer before the close of the period contracted
for.[39]
Regarding the civil rights and relations of the negroes the following
legislation was passed:
1. A law in these words:
That persons of color shall have the right to make and enforce
contracts; to sue, be sued; to be parties and give evidence; to
inherit; to purchase, lease, sell, hold and convey real and personal
property; and to have full and equal benefit of all laws and
proceedings for the security of person and estate; and shall not be
subject to any other or different punishment, pain or penalty for the
commission of any act or offence than such as are prescribed for
white persons committing like acts or offences.[40]
2. A provision, implied in the law above quoted, that negroes were to be
held competent witnesses in all courts in cases, civil or criminal,
whereto persons of color should be parties.[41]
3. Certain provisions for establishing among the negroes the regular
relations between husband and wife, parent and child, in place of the
irregular relations which had prevailed under slavery.[42]
4. The prohibition of marriage between negroes and white persons.[43]
This last provision, and also the exclusion of the testimony of negroes
from cases whereto a colored person was not party, are of social rather
than legal importance, since their effect was to separate the two races,
but not to deprive the negroes of the equal protection and benefit of the
law. They were like the school law, which provided that only "free white
inhabitants of the state" were entitled to instruction in the public
schools.[44]
The Johnson government thus assigned to the negroes a position of
political incapacity, social inferiority, but equality of civil rights.
This plan was very remote from that in favor in the North, but it is not
thereby condemned. As to the measures of the Johnson government for
remedying industrial distress and guarding against social dangers, we
search them in vain for the inhuman harshness to the negroes which they
were reputed to embody. This legislation of Georgia was more favorable to
the negroes than that of the other Johnson governments. But the North
looked at the conquered South as a whole, and if the difference of the
laws of Georgia from those of other states was noticed, it was quickly
forgotten. To northern public opinion the scheme for the treatment of the
negroes embodied in the Georgia laws, even if its mildness had been
recognized, would have been a cause of indignation. This was the
consummate hour of a humanitarian enthusiasm sprung from forty years of
anti-slavery agitation, and now intensified by the passions of the war. In
such an hour a plan which frankly denied to the negroes political and
social equality was looked upon as an offence against justice and
humanity. The Georgia law-makers had sought for a plan to meet immediate
necessities, not a plan for the elevation of the black race. To demand
that Georgia, stricken and menaced as she was, should pass by the needs of
the present and enter upon a vague scheme of philanthropy, was
unreasonable. It was just as unreasonable to conclude from the course
which Georgia took, that the black race in Georgia would be forever held
down, or that positive encouragement would be withheld as time went on.
Nevertheless the public opinion of the North made this demand and drew
these conclusions.
Having stated the attitude of the Johnson government to the emancipated
slave, we next come to its attitude toward the fallen Confederacy and
toward the federal government. And with reference to this subject the
following facts are to be noticed:
1. Almost the first act of the constitutional convention was to vote a
memorial to the President in behalf of Jefferson Davis.[45]
2. The convention, instead of declaring that the ordinance of secession
was an act of illegality and error, and was null and void, laconically
declared it "repealed."[46]
3. The convention anticipated the function of the legislature in order to
provide pensions for the wounded Confederate soldiers and for widows of
the dead.[47]
Through the legislature Georgia showed herself equally frank in expressing
affection and regret for the lost cause, and equally wanting in an
attitude of humility to the federal government--or at least to the
dominant party in Congress. On the recommendation of the governor she
rejected the Fourteenth Amendment by an almost unanimous vote, largely
because of the disabilities it imposed on the leaders of the
Confederacy.[48] Instead of remaining a humbly silent spectator of the
controversy between the President and Congress, she boldly thanked the
President for his "regard for the constitutional rights of states," and
for "the determined will that says to a still hostile faction of her
recent foes, 'Thus far shalt thou go and no farther. Peace, be
still.'"[49] She continued to provide for the unfortunate champions of
the Confederacy, characterizing this action as "a holy and patriotic
duty."[50] She extended expressions of "sincerest condolence and warmest
sympathy" to the illustrious state prisoner, Jefferson Davis, declaring
that her "warmest affections cluster[ed] around the fallen chief of a once
dear but now abandoned cause."[51]
These acts and resolutions expressed through the government the spirit
which was found among the people by direct observers--a spirit of
submission to irresistible force, in some cases sullen, in most cases
unrepentant.[52] At that time the absence of that spirit would have been
extraordinary. But the public opinion of the North regarded it not as the
aftermath of war, which would soon pass, but as a spirit which, if left
undisciplined, would break out in another war.
This belief, and the belief that the negroes were destined by the southern
governments to suffer injustice and debasement, and that the ballot was
their only salvation, gave rise to two corresponding purposes--to chasten
the rebellious spirit of the South, and to invest the negroes with the
voting franchise by force. To destroy the state governments of the South
and rebuild them on a basis of negro suffrage would accomplish both these
purposes. This plan was also supported for the sake of a third purpose,
viz., to secure for the Republican party the votes of the negroes. There
were thus three classes of men bent on abolishing the Johnson government.
We may call them the Disciplinarians, the Humanitarians, and the
Republican Politicians.
CHAPTER III
CONGRESSIONAL DELIBERATIONS AND ACTIONS CONCERNING THE JOHNSON
GOVERNMENTS, ENDING IN THE RECONSTRUCTION ACTS OF 1867
When Congress met on December 4, 1865, President Johnson informed it of
the measures he had taken for restoring the southern states and of the
conditions he had required as necessary to restoration. He emphasized the
requirement that the Thirteenth Amendment be ratified (which, as stated in
Chapter I, was complied with in Georgia five days later).
It is not too much to ask [he said], in the name of the whole people,
that, on the one side, the plan of restoration shall proceed in
conformity with a willingness to cast the disorders of the past into
oblivion; and that, on the other, the evidence of sincerity in the
future maintenance of the Union shall be put beyond any doubt by the
ratification of the proposed amendment.... The amendment to the
Constitution being adopted, it would remain for the states ... to
resume their places in the two branches of the national
legislature.[53]
That Congress was not entirely pleased with the President's course; that
it did not agree with him considering the adoption of the Thirteenth
Amendment, the most that could be asked of the southern states, and that
it did not intend to give effect to his last suggestion, soon became
apparent. In the Senate, on the day on which the President's message was
read, Sumner offered resolutions to the effect that before the southern
states should be admitted to representation in Congress they must
enfranchise "all citizens," establish systems of education open to negroes
equally with white people, and choose loyal persons for state and
national offices.[54] The resolutions concluded: "That the states cannot
be precipitated back to political power and independence, but they must
wait until these conditions are in all respects fulfilled."[55]
The House of Representatives, after organizing, immediately proposed to
the Senate a joint committee to "inquire into the condition of the states
which formed the so-called Confederate States of America, and report
whether they, or any of them, are entitled to be represented in either
house of Congress." The Senate accepted the proposal, and on December 13
the committee was formed.[56]
Five months passed before the committee reported. During that interval
Congress took no action determining the question at issue. A vast number
of bills and resolutions was introduced proposing various modes of
treatment for the southern states and various theories regarding their
status, which are interesting to the historian, but all of which fell by
the way. The Freedmen's Bureau Bill, if it had become law during this
period, would have implied that in the opinion of Congress the late
Confederate States were simply territory of the United States and not
states in the Union.[57] But this bill failed to be repassed over the
President's veto.[58] The Civil Rights Bill, which became law on April 9,
1866, made it a crime to discriminate against any person on account of his
race or color under the alleged authority of any state law or custom, gave
the federal judicial authorities power to arrest and punish any person
guilty of this offense, and also gave the federal courts jurisdiction
over any case before a state court in which such discrimination was
attempted.[59] This law created entirely new relations between federal and
state authority, but since it was passed as an act to enforce the
Thirteenth Amendment,[60] and applied to all states alike, it committed
Congress to no declaration regarding the status of the southern states.
The joint committee made its long-expected report on April 30, 1866.[61] A
great number of witnesses had been examined regarding conditions in the
South, whose testimony fills a large volume and purports to be the basis
of the committee's report. The committee thought that since the Johnson
governments had been set up under the military authority of the President
and were merely instruments through which he had exercised that power in
governing conquered territory, they were not regular state governments.
This belief was confirmed by the fact that the existing state
constitutions had been framed by conventions acting under the constant
direction of the President, and also by the fact that they had not been
submitted to the people for adoption. The Johnson governments then were
not state governments at all, and so could not send representatives to
Congress.
The committee appealed less to this constitutional argument than to
arguments of policy. It was willing to grant the "profitless abstraction"
that the southern states still remained states. The people of those states
had waged war on the United States. Though subdued, they were defiant,
disloyal, and abusive. They showed no disposition to abate their hatred
for the Union or their affection for the Confederacy. To accord to such a
people entire independence, taking no measures for security from future
danger; to admit their representatives to Congress; to allow conquered
enemies "to participate in making laws for their conquerors;" to turn over
to the custody of recent enemies the treasury, the army, the whole
administration--this would be madness unexampled.
For these reasons the committee recommended a joint resolution and two
bills. The resolution proposed an amendment to the Constitution forbidding
any state to abridge the civil rights of citizens of the United States, or
to deny to any person the equal protection of the laws, providing that a
state which withheld the electoral franchise from negroes should suffer a
deduction from its Congressional representation, and providing that until
1870 all adherents to the Confederacy should be excluded from voting for
members of Congress and for Presidential electors. The first of the two
bills was to enact "that whenever the above recited amendment [should]
have become a part of the Constitution of the United States, and any state
lately in insurrection [should] have ratified the same, and [should] have
modified its constitution and laws in accordance therewith," then its
representatives might be admitted to Congress. The second bill was to make
ineligible to office under the United States men who had been prominent in
the service of the Confederacy.
A minority of the committee took issue with the majority on both its legal
and its political views. The states under consideration, said the
minority, had never gone out of the Union; therefore, being states of the
Union, Congress could not lawfully deprive them of their rights as states.
That the Johnson governments were only the machinery of military
occupation, set up by the conquering general, was denied.
We know [said the minority report] that [the southern states] have
governments completely organized, with legislative, executive, and
judicial functions. We know that they are now in successful
operation; no one within their limits questions their legality, or is
denied their protection. How they were formed, under what auspices
they were formed, are inquiries with which Congress has no concern.
A state is under no restriction as to the mode of altering its
constitution; if it chooses to receive assistance from the President, or
any one else, the validity of the amended constitution is not affected.
To the statement of the majority regarding the disposition of the southern
people, the minority opposed the high authority of General Grant. In an
official report he had said:
I am satisfied that the mass of thinking men of the South accept the
present situation of affairs in good faith.... [They] are in earnest
in wishing to do what they think is required by the government ...
and if such a course was pointed out they would pursue it in good
faith.
The right way in which to deal with the southern people was, then, to
conciliate them, as the President had tried to do, not to perpetuate their
hostility.
If Congress adopted the program recommended by the majority, said the
minority, it would repudiate its own solemn declaration made in 1861,
that this war is not waged upon our part in any spirit of oppression,
nor purpose of overthrowing or interfering with the rights or
established institutions of those states, but to defend and maintain
the supremacy of the Constitution, and to preserve the Union, with
all the dignity, equality, and rights of the several states
unimpaired.[62]
The proposed provisions regarding ineligibility would dishonor the
government by annulling the pardons granted by the President. Further, the
program contradicted itself, since it proposed to treat the southern
communities as states, in submitting a constitutional amendment to them,
while at the same time imposing on them conditions to which a state could
not lawfully be subjected.
After a debate of which these two opposing reports are a convenient
summary, Congress adopted the program of the committee. The joint
resolution, changed into a form embodying the present Fourteenth
Amendment, was passed on June 13, 1866.[63] The two bills proposed were
taken up, but Congress adjourned without bringing them to a final vote,
leaving the South to be regulated during the recess by the Civil Rights
Act, and by an act, passed over the President's veto on July 16, embodying
in a less drastic form the provisions of the Freedmen's Bureau Bill which
had failed in February.[64]
When Congress met in December, 1866, the same voluminous mass of
reconstruction proposals and declaratory resolutions appeared in both
houses as at the last session. But the denunciation of the President and
of the Johnson governments was more emphatic in these bills and
resolutions, as well as in the debates. Sumner proposed a resolution to
this effect:
That all proceedings with a view to reconstruction originating in
executive power are in the nature of usurpation; that this usurpation
becomes especially offensive when it sets aside the fundamental
truths of our institutions; that it is shocking to common sense when
it undertakes to derive new governments from the hostile populations
which have just been engaged in armed rebellion, and that all
governments having such origin are necessarily illegal and void.[65]
Another resolution proposed that the committee of the House on territories
be instructed to take steps for organizing the districts known as
Virginia, North Carolina, etc., into states. Cullom said in a speech:
During the last session of this Congress we sent to the country a
proposed amendment to the Constitution.... The people of the rebel
states by their pretended legislatures are treating it with scorn and
contempt.... It is time, sir, that the people of the states were
informed in language not to be misunderstood that the people who
saved this country are going to reconstruct it in their own way, the
opposition of rebels to the contrary notwithstanding.[66]
Another fact which appeared prominently in the speeches and resolutions of
this session was the growing fear, real or assumed, that freedmen and
loyal persons in the South were in mortal danger. Bills for their
protection were introduced by the dozen.
Shall we shut our eyes [said a speaker] to the abuse and murders of
loyal men in the South, and the continued destruction of their
property by wicked men, and give them no means of protection?[67]
Stevens exclaimed that the United States would be disgraced
unless Congress proceed[ed] at once to do something to protect these
people from the barbarians who [were] daily murdering them; who
[were] murdering the loyal whites daily, and daily putting into
secret graves not only hundreds but thousands of the colored
people.[68]
At first the lower house resumed its consideration of the bills
recommended at the last session by the joint committee. But early in
February, 1867, these were dropped in favor of a new bill. This was the
Reconstruction Bill which became law on March 2. It provided that the
South should be divided into five districts, each to comprise the
territory of one or more of the southern states. The President should
assign to each district a military officer not below the rank of
brigadier-general, and should detail for his use a sufficient military
force. The duties of these officers should be "to protect all persons in
their rights of person and property, to suppress insurrection, disorder
and violence, and to punish, or cause to be punished, disturbers of the
public peace and criminals." To this end they might either allow local
courts to exercise their usual jurisdiction or organize special military
courts, for the procedure of which a few general regulations were provided
in the bill. Until the states should be by law restored to the Union, the
governments existing in them were declared "provisional only, and in all
respects subject to the paramount authority of the United States, at any
time to abolish, modify, control or suspend the same."
In section 5 of this bill were stated the conditions upon which the
southern states might regain their places in the Union. In each of them a
constitutional convention should be elected. For members of this
convention all male "citizens" of the voting age should vote, except those
excluded from office by the pending Fourteenth Amendment. These were
forbidden to sit in the convention or to vote for delegates. The
convention thus formed should frame a new constitution, which should give
the franchise to all persons qualified to vote for delegates by the
present bill. The constitution should be submitted to the people of the
state for ratification, and to Congress for approval. When these should
have been received, and when the legislature elected under the new
constitution should have ratified the Fourteenth Amendment, then Congress
should pass an act admitting the reconstructed state to Congressional
representation, and the present law should cease to operate in that
state.[69]
The principle of this bill was the same as that of the reconstruction
measures first undertaken at the suggestion of the joint committee, namely
the punishment of an enemy. The debate in the House was opened by a
felicitous quotation from Vattel on the public law applicable to the case
of a conquered enemy.[70] The punishment here provided was, however, more
severe than that first proposed. The former program was designed to offer
to the states the alternative of adopting the Fourteenth Amendment or
remaining out of the Union and under the Freedman's Bureau--which was,
indeed, regarded as a very obnoxious alternative. But the present bill
required them not only to ratify the amendment, but to adopt new
constitutions, elect new governments, enfranchise the negroes, and
disfranchise their most prominent and respected citizens; and meanwhile
imposed upon them not simply a bureau, to interfere in individual cases,
but the virtually absolute rule of a military governor.
This bill was passed over Johnson's veto on March 2, 1867. On March 23 a
supplementary act was passed, providing means for executing section 5 of
the preceding act. The initiative in calling the constitutional
conventions, instead of being left to the states, to be exercised or not,
as they chose, was now assigned to the military governor. He, with the
assistance of such boards of registry as he might create, was directed to
register all persons qualified to vote for delegates. He should then fix
the number of delegates and arrange the plan of representation, set the
day for election and summon the convention.[71]
A third reconstruction act was passed on July 19, 1867. It is unnecessary
to discuss it, since it was only explanatory of the acts of March 2 and
23, and added nothing which needs mention here to their provisions.[72]
* * * * *
Were the Reconstruction Acts constitutional? Since the Supreme Court has
failed, either voluntarily or otherwise, to decide every case brought
before it depending upon this question,[73] reasoning is not rendered idle
by authority. The Supreme Court has indeed expressed a definite opinion on
the subject, but has given no decision.
The opinion referred to was expressed in the case of Texas _versus_
White.[74] The Court said:
These new relations [namely, those created by the civil war] imposed
new duties upon the United States. The first was that of suppressing
the rebellion. The next was that of re-establishing the broken
relations of the states with the Union. The authority for the
performance of the first had been found in the power to suppress
insurrection and to carry on war; for the performance of the second,
authority was derived from the obligation of the United States to
guarantee to every state a republican form of government.
This the Court considered good authority for the passage of the
Reconstruction Acts. Most of the advocates of the acts based them upon
this theory.
Now, upon that clause of Article IV., Section 4, of the Constitution which
says: "The United States shall guarantee to every state in this Union a
republican form of government," the _Federalist_ remarks:
It may possibly be asked whether [this clause] may not become a
pretext for alterations in the state governments without the
concurrence of the states themselves.... But the authority extends no
further than to a _guarantee_ [the _Federalist's_ italics] of a
republican form of government, which supposes a pre-existing
government of the form which is to be guaranteed.[75]
The intention of the clause, says the _Federalist_ in the same paper, is
simply to guard "against aristocratic or monarchic innovations." To one
not interested in establishing the constitutionality of the Reconstruction
Acts, it seems indisputable that the clause is rightly interpreted by the
_Federalist_. Story accepts this interpretation as a matter of course.[76]
Cooley groups the clause with that which forbids the states to grant
titles of nobility.[77] If this interpretation is correct, then the
guarantee clause gives no authority for destroying a state government of a
republican form and substituting another.
There is, however, a constitutional basis for the Reconstruction Acts. It
is the war power of Congress.
If a section of the people of a stale rebel against the government, the
resulting contest is not a war, in the sense of international law. But as
it may assume the physical character of a war, so it may call into
existence the rights and customs incident to war. Upon this principle the
federal government acquired the rights of war in the contest of
1861-1865.[78] Now the rights of war do not end with military operations;
one of these rights is the right of the victorious party, after an
unconditional surrender, to occupy the territory of the defeated party, to
govern or punish the people as it sees fit. If the United States
government acquired the rights of war, this right was included. The close
of a war is not simultaneous with the cessation of fighting. The surrender
of the southern armies was an important incident in the civil war; it was
not the end. If the federal government had the rights of war before this
incident, it had them after.
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 assumed to have been pronounced 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 participate 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, pass
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 substitute 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 passed. 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 assume 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 passing 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 passage of the Reconstruction Acts may thus be regarded, from a legal
point of view, as simply the substitution 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
constitutional 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 passage 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 Constitution 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 entitled to do so, ... the same shall become thereby a
part of the Constitution.[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 sparseness 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 entitle them
to vote anywhere in the state.[85]
The election for deciding whether a constitutional 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 entitled 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
constitution which it framed more than met the demands of the
Reconstruction Acts. A single citizenship was established for all
residents of the state, in language borrowed from the Fourteenth Amendment
to the federal Constitution.[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 constitution 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 constitution 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 shift 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 assuming 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]
In his first general orders, as we have said, Pope warned the judiciary
against racial prejudice. It was probably disregard of this warning which
caused the removal of about a dozen judges, justices of the peace, and
sheriffs.[107] In the interest of equal justice, Pope also ordered that
grand and petit jurors should be selected impartially from the lists of
voters registered under the Reconstruction Acts.[108] Besides this general
protection, individual relief was given by release from arrest, mitigation
of the conditions of confinement, reduction of fines, and other special
dispensations.[109] The method of securing justice mentioned in the Act of
March 2, 1867, namely by ordering the trial of cases by military
commissions, was employed by Pope only once.[110]
Such was the administration of Pope. Its influence on the _personnel_ of
the state government was large, but was exercised only slightly through
removal, chiefly through appointment to fill vacancies. Pope removed about
fifteen state officers (almost all of whom were the judicial officers
mentioned in the preceding paragraph). He filled about two hundred
vacancies.[111] It is significant that a great number of these were caused
by resignation. His acts of interference with the action of state officers
were few, and with all his zeal for the success of reconstruction, he
favored freedom of speech. Nevertheless, his opinions and his personal
character, combined with such interference as he did practice, served to
gain for him the dislike of the people and the rather unjust reputation of
a petty tyrant.
Though Meade lacked Pope's zealous enthusiasm for reconstruction, yet he
held much the same opinion as his predecessor regarding the duties with
which he was charged. Like Pope, he forbade the bestowal of public
patronage on anti-reconstruction newspapers.[112] Like Pope, he thought
it his duty to depose state officers who opposed the execution of the
Reconstruction Acts. When he assumed command he found the convention at
loggerheads with the governor and the state treasurer. The convention had
levied a tax to pay its expenses, and pending the collection of it had
directed the treasurer to advance forty thousand dollars.[113] The
treasurer (Jones by name) declined to do this except on a warrant from the
governor, according to the regular practice. Meade requested Jenkins to
issue the warrant. Jenkins refused, on the ground that the act would
violate the state constitution under which he held office, and that even
if it were authorized by the Reconstruction Acts (which he denied), that
was an authorization contrary to the Constitution of the United States,
upon which he would not act.[114] Thereupon, on January 13, 1868, Meade
issued an order by which the governor (designated as the "provisional
governor") and the treasurer (also designated as "provisional") were
removed and Brigadier-General Ruger and Captain Rockwell "detailed" to act
as governor and treasurer respectively.[115] For this act the convention
rewarded Meade with a resolution of gratitude.[116] Before the end of the
same month the state comptroller and the secretary of state were also
removed for obstructing reconstruction,[117] and later the mayor and the
entire board of aldermen of Columbus shared the same fate.[118]
Toward the freedmen General Meade assumed the attitude of his predecessor.
He made similar rules to protect them, in voting, from coercion by
employers.[119] On the other hand, observing that too frequent enticement
of negroes to political meetings was disturbing industry, he announced
that interference of this sort with the rights of employers by political
agitators would meet with the same punishment as interference with the
rights of freedmen.[120]
Besides following the two policies of suppressing resistance and
protecting freedmen, Meade used his power to a great extent simply in the
interest of the general welfare. Public peace and order seemed threatened
on the eve of the April election. Orders issued on April 4 expressed the
belief that there existed a concerted plan, extending widely through the
Third District and apparently emanating from a secret organization, to
overawe the population and affect elections. Both military and civil
officers were ordered to arrest publishers of incendiary articles and to
organize special patrols.[121] Troops were distributed so as to command
the parts chiefly in danger,[122] and the frequent resignation of office
by sheriffs occasioned the order that no more resignations would be
permitted, but that the sheriffs must retain their offices and execute the
law.[123] By way of benevolent despotism, Meade, at the request of the
convention, suspended the operation of the bail process and of the writ of
_capias satisfaciendum_, and promulgated the provisions of the new
constitution for the relief of debtors until the constitution should
become law.[124] Likewise he gave special orders in eight or ten cases
suspending trails, releasing prisoners, and otherwise preventing hardship
or failure of justice. Whereas Pope had convened one military court, Meade
convened six,[125] and before these thirty two cases were tried. Meade
appointed about seventy state officers and removed about twenty.
These facts show that the two administrations we are considering were
alike in policy, and that in action Meade's was the more vigorous.
Nevertheless, while Pope was disliked, Meade, thanks to a more attractive
character, enjoyed a certain popularity.
* * * * *
Such was the process by which the Disciplinarians, the Humanitarians, and
the Republican Politicians hoped to gain their respective purposes. What
were the results of the process by the end of the administration of Meade?
For the Disciplinarians they were not encouraging. Military government was
received not as discipline but as bullying. The spirit which
reconstruction was designed to quell was only embittered; for to those who
entertained it reconstruction was not the chastening of the nation, but
the domineering of a political party, which it was hoped and believed
would soon lose its ascendency.[126]
For the Humanitarians reconstruction had produced written laws regarding
equality of civil and political rights, which were deemed a subject of
congratulation. Outside the laws they would have found less encouragement.
The kindness of the white people toward the negroes had been changed to
apprehension by the events of 1865. When the advent of negro suffrage
brought the carpet-baggers to the South to marshal the negro voters for
their own benefit, and when these men began to disturb the negroes by
organizing them into mysterious Union Leagues and giving them
indigestible ideas of their rights, apprehension became alarm. Negroes
seized property of all kinds--including even plantations--by violence,
supposing this to be one of their new rights. Already they had raised a
new terror by crimes against white women, hitherto unknown. Some
thoughtful men believed that the best defence against the dangers
apprehended from the disturbed black population was kindness and friendly
influence.[127] That opinion was not heard after the arrival of the
carpet-baggers; its methods were then seen to be inadequate. Secret
organizations were formed by white men for protection against the negroes.
These organizations, which sowed the seed of a subsequent harvest of
crime, at first included men of the best character and of the highest
standing.[128] Thus reconstruction, together with its written laws, had
produced conditions which made the net Humanitarian results doubtful, at
least for the moment.
For the Republican Politicians reconstruction did not produce in Georgia
all that was to be desired. When the enterprise was first launched some of
the white men, though offended, favored accepting the inevitable and
endeavoring to elect good men to the constitutional convention and to the
new state government.[129] Others, carried further by their anger,
determined to take no part in elevating the negroes and debasing their
heroes. Prominent among these, as we have said, was Governor Jenkins.
These men stayed at home on October 29, 1867, contemptuously ignoring the
"bogus concern called an election," which occurred on that day.[130] Many
of these latter, by the time the "motley crew assembled at Atlanta" had
finished its labors, decided to follow the example of the former. A
convention met at Macon on December 5, 1867, formed a party, the Georgia
Conservatives, named a ticket, with John B. Gordon at the head, and began
a powerful campaign for the defeat of negroes and adventurers at the April
election.[131] To make an active fight was recognized as a better course
than to stand in ineffectual scorn.[132] As a result the sweeping victory
expected by the Republican Politicians did not occur in Georgia. A
Republican governor was elected; but in the state senate the seats were
equally divided between the Republicans and the Conservatives, in the
state house of representatives the Conservatives obtained a large
majority, and of the seven Congressmen elected three were
Conservatives.[133]
CHAPTER V
THE SUPPOSED RESTORATION OF 1868
The passage of the Reconstruction Acts of 1867 determined the course of
reconstruction, but did not stop discussion. When Congress met in
December, 1867, the acts passed continued to be attacked and defended and
new bills to be introduced and dropped. But the plan as adopted remained
untouched, with one exception.
One of the reasons given by the joint committee on reconstruction for
abolishing the Johnson governments was that the Johnson constitutions had
not been ratified by popular vote, and therefore did not rest upon the
consent of a majority of the people. To avoid a like defect in the new
governments the act of March 23 had provided that the new constitutions
should be regarded as adopted only if a majority of the registered voters
took part in the vote on the question of adoption. At its next session
Congress repented of this provision; it was now seen to involve the risk
that the opponents of reconstruction in the southern states would defeat
the new constitutions by the plan of inaction. This risk should be
avoided, since the adoption of a state constitution probably meant the
election of a Republican state government, and hence of Republican
Senators, as well as Republican Congressional Representatives and
Republican Presidential Electors in November, 1868. These advantages would
be lost if the new constitutions were defeated. Therefore, by an act which
became law on March 11, 1868, the reconstruction legislation was amended
so as to provide that elections held under that legislation should be
decided by a majority of the votes cast. This act also adopted as part of
the general scheme two expedients already employed by Pope in the Third
District. That is to say, it provided that any registered voter might vote
in any election district in his state, provided he had lived there ten
days, and that the elections should be "continued from day to day."[134]
Aside from these alterations, Congress allowed reconstruction to complete
its course according to the first plan. Within the first six months of
1868 North Carolina, South Carolina, Louisiana and Florida, besides
Georgia, had adopted new constitutions. According to the Act of March 2,
1867, two more steps would complete the process for these states; namely,
the ratification by their legislatures of the Fourteenth Amendment, and
the declaration "by law" (provided Congress approved the constitutions)
that they were entitled to representation in Congress.[135] Congress now
decided, instead of waiting for the ratification of the amendment, to pass
the declaratory law at once, which should operate as soon as the
ratification should have occurred. By this method one act would suffice
for all the states which had adopted constitutions.
The bill for this purpose was called the Omnibus Bill. It provided that
North Carolina, South Carolina, Georgia, Florida, Louisiana, and also
Alabama,[136] should be admitted to representation in Congress as soon as
their legislatures elected under the new constitution should have ratified
the Fourteenth Amendment, on condition that the provisions of that
amendment regarding eligibility to office should at once go into
operation in those states, and on condition that the constitution of none
of them should ever be amended so as to deprive of the right to vote any
citizens entitled to that right as the constitutions then stood. A special
condition was imposed on Georgia; namely, that Article V., section 17, Sec.Sec.
1 and 3 of her constitution be declared void by the legislature. A
precedent for such a requirement was found in the act of 1821, admitting
Missouri to statehood.[137] The bill gave the governors-elect in the
states concerned authority to call the legislatures immediately to fulfill
the required conditions.[138]
The Omnibus Bill became law on June 25, 1868. On the same day Rufus B.
Bullock, the governor-elect of Georgia, issued a proclamation in
accordance with the act, summoning the legislature to meet on July
4th.[139]
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 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 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 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 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 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 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 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 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 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 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
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 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 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 Georgia a 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 was _bona fide_ chastisement 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.
CHAPTER VII
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 word _duly_ meant _in a certain manner_--namely, the manner
required by the rest of the act. The failure 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 in Congress.[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:
For Grant and Colfax
Including Georgia's votes 214
Excluding Georgia's votes 214
For Seymour and Blair
Including Georgia's votes 80
Excluding Georgia's votes 71
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 was passed. 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 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 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]
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 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 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
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 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 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] 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 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 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 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 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
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 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 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 "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 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 should be "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]
* * * * *