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:

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 rÔle 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]

Whatever may have been the merits of the construction of the Reorganization Act adopted by the War Department, it is certain that the proceedings taken under it greatly astonished those who had passed the act. On January 19 the House of Representatives adopted a resolution requesting the general of the army to inform it by what authority three United States soldiers were acting as a committee in the legislature of Georgia.[244] On February 4 the Senate asked for official information regarding the proceedings had under the Reorganization Act.[245] The facts disclosed in response to this request created such surprise that the Senate directed the judiciary committee to inquire and report whether the act had been complied with.[246] The answer of the committee, as we saw in the early part of the chapter, was that the act had been misconstrued and violated. The appointment of presiding officers by the governor, the acts of those officers, the revival of the military governorship, and in particular the interference of Terry in the organization of the legislature—these, said the committee, were wholly unlawful. But though unlawful they had resulted in no substantial injustice, since all the men debarred by Terry were undoubtedly ineligible. And in any case a general state election was approaching, so that if any injustice had been done it would soon be righted. For these reasons the committee recommended that Congress undertake no more legislation for Georgia, but admit her representatives to each house as soon as possible.[247]

The committee believed that the Reorganization Act was to be construed as a law entitling Georgia to representation in Congress as soon as she had ratified the Fifteenth Amendment. This opinion was held by many Republicans, who had followed Trumbull’s example and who appeared from this time on as opponents of further Congressional interference in the South. The radical Republicans, however, led by Butler—those Republicans characterized by a Republican paper of the time as “the screeching wing” of the party[248]—insisted that Georgia must be admitted, as the first Reconstruction Act had said, “by law,” and that no law to that effect had been passed. The reason why this argument was urged was that the passage of a new act for restoring the state would give an opportunity to annex other provisions besides the declaration of restoration. The particular provisions designed to be annexed were for the purpose of prolonging the term of the present state government.

On February 25 Butler introduced the bill to admit Georgia.[249] One of its sections was as follows:

That the power granted by the constitution of Georgia to the general assembly to change the time of holding elections ... shall not be so exercised as to postpone the election for members of the next general assembly beyond the Tuesday after the first Monday in November in the year 1872.