CHAPTER XXVIII.

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.

Robert Toombs Statesman, Speaker, Soldier, Sage · 第 28 / 31 章