HIS LAST PUBLIC SERVICE.
One of the reforms advocated by General Toombs upon the return of the
white people to the control of the State Government was the adoption of
a new State Constitution. He never tired of declaring that the organic
law of 1868 was the product of "aliens and usurpers," and that he would
have none of it; Georgia must be represented by her own sons in council
and live under a constitution of her own making. In May, 1877, an
election was held to determine the question, and in spite of
considerable opposition, even in the Democratic party, the people
decided, by nine thousand majority, to have a constitutional convention.
On July 10, 1877, that body, consisting of 194 delegates, assembled in
Atlanta to revise the organic law. Charles J. Jenkins was elected
president of the convention. He had been deposed from the office of
Governor of Georgia at the point of the bayonet in 1866. He had carried
the case of the State of Georgia before the national Supreme Court and
contested the validity of the Reconstruction measures. He had carried
with him, when expelled from the State Capitol, the great seal of the
State, which he restored when the government was again remitted to his
own people, and in public session of the two houses of the General
Assembly, Governor Jenkins had been presented with a facsimile of the
great seal, with the fitting words cut into its face, "In Arduis
Fidelis." These words are graven on his monument to-day. He was more
than seventy years of age, but bore himself with vigor and ability.
There was a strong representation of the older men who had served the
State before the war, and the younger members were in full sympathy with
them. It was an unusual body of men--possibly the ablest that had
assembled since the secession convention of 1861. General Toombs, of
course, was the most prominent. He had been elected a delegate from his
senatorial district--the only office he had occupied since the war. His
activity in securing its call, his striking presence, as he walked to
his seat, clad in his long summer duster, carrying his brown straw hat
and his unlighted cigar, as well as his tireless labors in that body,
made him the center of interest. General Toombs was chairman of the
committee on legislation and chairman of the final committee on
revision. This body was made up of twenty-six of the most prominent
members of the convention, and to it were submitted the reports of the
other thirteen committees. It was the duty of this committee to
harmonize and digest the various matters coming before it, and to
prepare the final report, which was discussed in open convention.
General Toombs was practically in charge of the whole business of this
body. He closely attended all the sessions of the convention, which
lasted each day from 8.30 in the morning to 1 o'clock P. M. The entire
afternoons were taken up with the important and exacting work of his
committee of final revision. Frequently it was far into the night before
he and his clerk had prepared their reports. General Toombs was in his
sixty-eighth year, but stood the ordeal well. His facility, his
endurance, his genius, his eloquence and pertinacity were revelations to
the younger men, who knew him mainly by tradition. General Toombs
proposed the only safe and proper course for the convention when he
arose in his place on the floor and declared; "All this convention has
to do is to establish a few fundamental principles and leave the other
matters to the legislature and the people, in order to meet the ever
varying affairs of human life." There was a persistent tendency to
legislate upon details, a tendency which could not be entirely kept
down. There was an element elected to this convention bent upon
retrenchment and reform, and these delegates forced a long debate upon
lowering the salaries of public officers, a policy which finally
prevailed. During the progress of this debate General Toombs arose
impatiently in his place and declared that, "The whole finances of the
State are not included when we are speaking of the Governor's salary,
and you spend more in talking about it than your children will have to
pay in forty years."
Occasionally he was betrayed into one of his erratic positions, as when
he moved to strike out the section against dueling, and also to expunge
from the bill of rights all restrictions upon bearing arms. He said:
"Let the people bear arms for their own protection, whether in their
boots or wherever they may choose."
But his treatment of public questions was full of sound sense and
discretion. He warned the convention that those members who, from
hostility to the State administration, wished to wipe out the terms of
the office-holders and make a new deal upon the adoption of the new
constitution, were making a rash mistake. They would array a new class
of enemies and imperil the passage of the new law. He advocated the
submission of all doubtful questions, like the homestead laws and the
location of the new Capitol, to the people in separate ordinances. He
urged in eloquent terms the enlargement of the Supreme Court from three
justices to five. Having been a champion of the law calling that Court
into being forty years before, he knew its needs and proposed a reform
which, if adopted, would have cut off much trouble in Georgia to-day.
General Toombs was an advocate of the ordinance which took the selection
of the judges and solicitors from the hands of the Governor and made
them elective by the General Assembly. A strong element in the
convention wanted the judiciary elected by the people. A member of the
convention turned to General Toombs during the debate and said; "You
dare not refuse the people this right to select their own judges." "I
dare do anything that is right," replied Toombs. "It is not a reproach
to the people to say that they are not able to do all the work of a
complex government. Government is the act of the people after all." He
reminded the convention that a new and ignorant element had been thrown
in among the people as voters. "We must not only protect ourselves
against them, but in behalf of the poor African," said he, "I would save
him from himself. These people are kind, and affectionate, but their
previous condition, whether by your fault or not, was such as to
disqualify them from exercising the right of self-government. They were
put upon us by people to make good government impossible in the South
for all time, and before God, I believe they have done it."
In answer to the argument that those States which had given the
selection of judges to the people liked it, General Toombs replied that
this did not prove that it was right or best. "It is easy to take the
road to hell, but few people ever return from it." General Toombs
prevailed in this point. He was also the author of the resolution
authorizing the legislature to levy a tax to furnish good substantial
artificial limbs to those who had lost them during the war.
General Toombs declared frequently during the debate that one of his
main objects in going to the convention, and for urging the people to
vote for the call, was to place a clause in the new law prohibiting the
policy of State aid to railroads and public enterprises. He had seen
monstrous abuses grow up under this system. He had noticed that the
railroads built by private enterprise had proven good investments; that
no railroad aided by the State had paid a dividend. He declared that
Georgia had never loaned her credit from the time when Oglethorpe landed
at Yamacraw up to 1866, and she should never do it again. He wanted this
license buried and buried forever. His policy prevailed. State aid to
railroads was prohibited; corporate credit cannot now be loaned to
public enterprises, and municipal taxation was wisely restricted.
General Toombs declared with satisfaction that he had locked the door of
the treasury, and put the key into the pocket of the people.
During the proceedings of this convention an effort was made to open the
courts to review the cases of certain outlawed bonds, which the
legislature had refused to pay, and which the people had repudiated by
constitutional amendment. Impressed by the conviction that certain
classes of these bonds should be paid, the venerable president of the
convention surrendered the chair and pled from his place on the floor
for a judicial review of this question.
No sooner was this solemn and urgent appeal concluded than General
Toombs bounded to the floor. He declared with energy that no power of
heaven or hell could bind him to pay these bonds. The contract was one
of bayonet usurpation. Within a few days the legislature had loaded the
State down with from ten to fifteen millions of the "bogus bonds."
The term "repudiation" was distasteful to many. The bondholders did not
relish it; but he thought it was a good honest word. No one was bound by
these contracts, because they were not the acts of the people. "I have
examined all the facts pertaining to these claims," said Toombs, "and
looking to nothing but the State's integrity, I affirm that the matter
shall go no further without my strenuous opposition. The legislature has
again and again declared the claims fraudulent. The people have spoken.
Let the bonds die." The convention agreed with Toombs.
On the 16th of August the convention, then in the midst of its labors,
confronted a crisis. The appropriation of $25,000 made by the
legislature to meet the expenses of the convention had been exhausted,
and the State Treasurer notified the president that he could not honor
his warrants any further. This was a practical problem. The work mapped
out had not been half done. Many of the delegates were poor men from the
rural districts and were especially dependent upon their _per diem_
during the dull summer season. To proceed required about $1000 per day.
To have crippled this body in its labors would have been a public
calamity. To check upon the public treasury beyond the limit fixed by
law involved a risk which the State Government, not too friendly toward
the convention at best, declined to assume. To raise the money outside
by a private loan presented this risk, that in the case of the rejection
of the constitution, then in embryo, the lender might find himself the
holder of an uncertain claim. The convention, however, was not left long
in doubt. With a heroic and patriotic _abandon_, General Toombs declared
that if Georgia would not pay her debts, he would pay them for her.
Selling a dozen or two United States bonds, he placed the proceeds to
the credit of the president of the convention, who was authorized in
turn to issue notes of $1000 each and deposit them with General Toombs.
The act was spontaneous, whole-souled, dramatic. It saved the convention
and rehabilitated the State with a new constitution. By a rising and
unanimous vote General Toombs was publicly thanked for his
public-spirited act, and the old man, alone remaining in his seat in the
convention hall, covered his face with his hands, and shed tears during
this unusual demonstration.
When the convention had under review the bill of rights, General Toombs
created a breeze in the proceedings by proposing a paragraph that the
legislature should make no irrevocable grants of special privileges or
immunities. The proposition received a rattling fire from all parts of
the house. Governor Jenkins assailed it on the floor as dangerous to
capital and fatal to public enterprise. It was argued that charters were
contracts, and that when railroads or other interests were put upon
notice that their franchise was likely to be disturbed, there would be
an overthrow of confidence and development in Georgia. This was the
first intimation of the master struggle which General Toombs was about
to make, an advance against the corporations all along the line. It was
the picket-firing before the engagement.
General Toombs had made a study of the whole railroad question. He was
a master of the law of corporations. He maintained a peculiar attitude
toward them. He never invested a dollar in their stock, nor would he
accept a place at their council boards. He rarely ever served them as
attorney. When the General Assembly resolved to tax railroads in
Georgia, the State selected General Toombs to prosecute the cases. In
1869 he had argued the Collins case against the Central Railroad and
Banking Company, in which the court had sustained his position that the
proposed action of the Central Road in buying up the stock of the
Atlantic and Gulf Railroad, to control that road, was _ultra vires_. He
had conducted the case of Arnold DuBose against the Georgia Railroad for
extortion in freight charges.
The principles he had gleaned from this laborious record made him
resolve to place restrictions upon corporate power in the new
constitution. The time was ripe for this movement. The Granger
legislation in the West had planted in the organic law of Illinois,
Ohio, and Missouri the policy of government control over the railroads.
The statutes of Pennsylvania also reflected the same principles, and the
Supreme Court of the United States had decided this great case on the
side of the people. General Toombs was master of the legislation on this
subject in England, and had studied the American reports on the right
and duty of the state to regulate railroad companies. He declared, in
proposing this new system, that these laws had been adopted by the most
enlightened governments of the world. "From the days of the Roman Empire
down to the present time," said Toombs, "it has never been denied that
the state has power over the corporations."
At once the State was in an uproar. "Toombs is attempting a new
revolution," was alleged. He was charged with leading an idolatrous
majority into war upon the rights of property. Conservative men like
Jenkins deprecated the agitation. Atlanta was filled with a powerful
railroad lobby, and the press resounded with warning that development of
the waste places of Georgia would be retarded by this unjust and
nefarious warfare. Robert Toombs was not an agrarian. His movement
against the corporations was reenforced by delegates from the small
towns in Georgia, who had suffered from discrimination in favor of the
larger cities. Railroad traffic had been diverted by rigid and ruthless
exactions, and a coterie of delegates from southwest Georgia stood
solidly by Toombs. These debates drew crowds of listeners. From the
galleries hundreds of interested Georgians looked down upon the last
public service of Robert Toombs. He never appeared to finer advantage.
His voice lacked its old-time ring, his beard was gray and his frame was
bent, but he was fearless, aggressive, alert, eloquent. He was master of
the whole subject. Railways, he declared, were public highways. Upon no
other principle could they receive land from the State, under its right
of eminent domain, than that this land was condemned for public and not
for private use. A public highway means that it must be used according
to law. In those States where people have been fighting the
encroachments of public monopolies, it had been found necessary to use
these terms, and Toombs prefaced his agitation with this announcement.
General Toombs did not mince matters. He declared that the rapacious
course of the railroads in Georgia had been spoliation. Monopoly is
extortion. Corporations must either be governed by the law or they will
override the law. Competition is liberty. Keep the hand of the law on
corporations and you keep up competition; keep up competition and you
preserve liberty. It has been argued that the towns and counties in
Georgia had grown rich. That is the same argument that was made in the
English Parliament. They said; "Look at your little colonies, how they
have grown under our care." But the patriotic men of America said; "We
have grown rich in spite of your oppressions." Shall we not restrain
this tax-gatherer who has no judge but himself, no limit but his
avarice?
General Toombs wanted it placed in the constitution that the legislature
shall pass these laws restricting railroads. He declared he had twice
drawn bills for that purpose; they had passed the House, but crumbled as
though touched with the hand of death when they came to the forty-four
(the Senate). "What," said he, "do I see before me? The grave. What
beyond that? Starving millions of our posterity, that I have robbed by
my action here, in giving them over to the keeping of these
corporations. The right to control these railroads belongs to the State,
to the people, and as long as I represent the people, I will not consent
to surrender it, so help me God!"
The spirit of Toombs dominated that convention. Men moved up the aisle
to take their seats at his feet as he poured out his strong appeal.
One-half of that body was filled with admiration, the other half with
alarm. "It is a sacred thing to shake the pillars upon which the
property of the country rests," said Mr. Hammond of Fulton. "Better
shake the pillars of property than the pillars of liberty," answered
this Georgia Sampson, with his thews girt for the fray. "The great
question is, Shall Georgia govern the corporations or the corporations
govern Georgia? Choose ye this day whom ye shall serve!"
The house rang with applause. Members clustered about the old man as
about the form of a prophet. The majority was with him. The articles
which he had advocated came from the committee without recommendation,
but they were substantially adopted, and are now parts of the supreme
law of the land. The victory was won, and Robert Toombs, grim and
triumphant, closed his legislative career, and claimed this work as the
crowning act of his public labors.
These principles are contained in Article IV. of the State constitution
of Georgia. It declares the right of taxation to be sovereign,
inviolable, and indestructible, and that it shall be irrevocable by the
State; that the power to regulate freight and passenger tariffs and to
prevent unjust discriminations shall be conferred upon the General
Assembly, whose duty it shall be to pass laws for the same; that the
right of eminent domain shall never be abridged; that any amendment to a
charter shall bring the charter under the provisions of the
Constitution; that the General Assembly shall have no authority to
authorize any corporation to buy shares of stock in any other
corporation, which shall have the effect to lessen competition or
encourage monopoly. No railroad shall pay a rebate or bonus.
Under these provisions, the Railroad Commission of Georgia was organized
in 1879. This idea, as it finally worked out, was General Toombs'. He
did not favor fixing the rates in the law, but the creation of such a
commission to carry out these provisions. The present law was framed by
Judge William M. Reese, Hon. Samuel Barnett, Ex-Senator H. D. McDaniel,
and Superintendent Foreacre of the Richmond and Danville Railroad. It
has worked well in Georgia. Twice has the legislature attempted to
remodel it, but the people have rallied to its support and have not
permitted it to be amended in so much as a single clause. It has served
as an example for imitation by other States, and was cited as strong
authority in Congress for the creation of the Inter-State Commerce Law.
The railroad men, after fighting it for ten years, have come round to
acknowledge its value. It has stood as a breakwater between the
corporations and the people. It has guaranteed justice to the citizen,
and has worked no injury to the railroads. Under its wise provisions
Georgia has prospered, and leads the Union to-day in railroad building.
And when, during a recent session of the legislature, an attempt was
made to war upon railroad consolidation, the saving, overmastering,
crowning argument of the railroads themselves was that General Toombs
had already secured protection for the people, and that, under his
masterly handiwork, the rights of property and the rights of the people
were safe.
When the convention had concluded its labors, General Toombs went before
the people and threw himself with enthusiasm into the canvass. He took
the stump, and everywhere his voice was heard in favor of the adoption
of the new organic law. Many of the officers whose term had been cut
off, and whose salaries had been reduced, appeared against the
constitution. General Toombs declared that those public men who did not
approve of the lower salaries might "pour them back in the jug." This
homely phrase became a by-word in the canvass. It had its origin in this
way: In the Creek war, in which "Capt. Robert A. Toombs" commanded a
company made up of volunteers from Wilkes, Elbert, and Lincoln counties,
a negro named Kinch went along as whisky sutler. As he served out the
liquor, some of the soldiers complained of the price he asked. His
answer was, "Well, sir, if you don't like it, sir, pour it back in the
jug."
In the State election of December, 1877, the new constitution was
overwhelmingly adopted, and will remain for generations the organic law
of the Empire State of the South.