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:

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:

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]