Edwin C. Woolley

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, §§ 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:

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.