The United States government might therefore say to the persons composing the military power which it had subdued: As the terms of war, you are to be governed by military government. If the persons against whom this sentence is a.s.sumed to have been p.r.o.nounced formed the majority of the population of a state, one result of the sentence would be to suspend independent state government. The United States government might choose another punishment. It might say to the lately hostile persons: We forbid you to partic.i.p.ate in the federal government. If the persons so sentenced form the majority of the population of a state, that state can send no representatives to Congress while the sentence remains. These sentences might be imposed permanently or only until such time as the people sentenced should fulfil certain demands--hold certain conventions, pa.s.s certain laws, adopt certain resolutions in certain ways. The federal government can thus effect through its war powers what it cannot effect through any power to interfere directly with a state government. It had no right to reconstruct the government of Maine in 1865, because Maine had no body of people over whom the federal government could exercise war powers.

It had the right to reconstruct the government of Georgia, because nine-tenths of the people of Georgia were lawfully at its mercy as a conqueror.

Even if it be admitted, however, that the federal government had the power described, it may still be argued that the Reconstruction Acts are not legally justified. A conqueror has a right to govern a conquered people as he pleases and as long as he pleases; he also has a right to alter his mode of treatment and subst.i.tute another mode. But after he has imposed certain terms as final, after the requirements of these terms have been complied with, after he has restored the conquered people to their normal position and rights and has unmistakably terminated the relation of conqueror to conquered--then his rights of war are at an end. It may be argued that this was the case when the Reconstruction Acts were pa.s.sed. It may be argued that in December, 1865, the federal government had, through the President, terminated its capacity as a conqueror, and could regain that capacity only by another war; that after that termination it had no more power to reconstruct Georgia than to reconstruct Maine.

This argument is irrefutable if we a.s.sume that the President had full power to act for the federal government in the disposition of the defeated Secessionists, and that therefore his acts of 1865 were the acts of the federal government. In case of an international war, which is closed by a treaty, the President may (if supported by the Senate) act finally for the federal government, and estop that government (so far as international law is concerned) from further action. But at the close of a civil war he cannot exercise his diplomatic power. The disposition of the defeated people in this case falls to the legislative branch of the government.

If the President had pardoned a great majority of the Secessionists, that fact perhaps might have legally estopped Congress from pa.s.sing the Reconstruction Acts. These acts were a war punishment, and a pardon cuts off further punishment.[79] But the total number of persons who received amnesty under the proclamation of May 29, 1865, was 13,596,[80] which was of course only a small fraction of the Secessionist population.

The pa.s.sage of the Reconstruction Acts may thus be regarded, from a legal point of view, as simply the subst.i.tution of one method of treating the defeated enemy for another. The change was from mildness to harshness. It was doubly bitter to the defeated enemy, after he had been led to believe that his punishment was over, to be subjected to a worse one. But these are not legal considerations.

That the Reconstruction Acts required communities not states to ratify a const.i.tutional amendment did not affect their legality. That an amendment depended for its validity on such ratification might make the amendment void (though even from this result there is a means of escape in the theory of relation, to be mentioned later), but that would not affect the act requiring the ratification. That this requirement was not made with the exclusive purpose of obtaining votes for the pa.s.sage of the amendment is shown by a resolution introduced into the House of Representatives on July 21, 1867, which reads:

_Resolved_, That in ratifying amendments to the Const.i.tution of the United States ... the said several states ... are wholly incapable either of accepting or rejecting any such amendment so as to bind the loyal states of the Union, ... and that when any amendment ... shall be adopted by three-fourths of the states recognized by the Congress as lawfully ent.i.tled to do so, ... the same shall become thereby a part of the Const.i.tution.[81]

What virtues the Reconstruction Acts had besides legal regularity will be discussed later.

CHAPTER IV

THE ADMINISTRATIONS OF POPE AND MEADE

In the Third Military District, of which Georgia was a part, the Reconstruction Acts were administered from April 1, 1867, to January 6, 1868, by General Pope, and from January 6 to July 30, 1868, by General Meade.[82] The present chapter will describe, first, the manner in which these men conducted the political rebuilding of Georgia, and second, the manner in which they governed during this process.

On April 8 Pope issued his first orders regarding the registration of voters. The three officers commanding respectively in the sub-districts of Georgia, Florida and Alabama were directed to divide the territory under them into registration districts, and for each of these to appoint a board of registry consisting as far as possible of civilians.[83] On May 2 the scheme of districts for Georgia was published. The state was divided into forty-four districts of three counties each, and three districts of a city each. For each district the names of two white registrars were announced, and each of these pairs was ordered to complete the board by selecting a negro colleague. The compensation of registrars was to be from fifteen cents to forty cents for every name registered, varying according to the density or spa.r.s.eness of the population. It was made the duty of registrars to explain to those unused to the enjoyment of suffrage the nature of this function. After the lists were complete they were to be published for ten days.[84]

The unsettled condition of the negro population suggested to Pope the possibility that many negroes would lose their right to vote by change of residence. He therefore ordered on August 15 that persons removing from the district where they were registered should be furnished by the board of registry with a certificate of registration, which should ent.i.tle them to vote anywhere in the state.[85]

The election for deciding whether a const.i.tutional convention should be held, and for choosing delegates in case the affirmative vote prevailed, was ordered to begin on October 29 and to continue three days. Registrars were ordered to revise their lists during the fortnight preceding the election, to erase names wrongly registered, and to add the names of persons ent.i.tled to be registered. The boards of registry were to act as judges of election, but registrars who were candidates for election were forbidden to serve in the districts where they sought election.[86]

The election was to occupy the last three days of October. On October 30 Pope extended the time to the night of November 2, in order to give the negroes ample opportunity to vote, which in their inexperience they might otherwise fail to do.[87]

After the election the following figures were announced:[88]

Number of registered voters in Georgia 188,647 Of these the negroes numbered 93,457 " the white men[89] 95,214 Number of votes polled 106,410 " " for a convention 102,283 " " against a convention 4,127

The delegates elected were ordered to meet in convention on December 9th.[90] On that day the convention met in Atlanta. Its business was not completed until the middle of March in the following year. The const.i.tution which it framed more than met the demands of the Reconstruction Acts. A single citizenship was established for all residents of the state, in language borrowed from the Fourteenth Amendment to the federal Const.i.tution.[91] Legislation on the subject of social status of citizens was forever prohibited.[92] The electoral right was given to all male persons born or naturalized in the United States who should have resided six months in Georgia.[93] Electors were privileged from arrest (except for treason, felony or breach of the peace) for five days before, during, and for two days after, elections, and the legislature was ordered to provide such other means for the protection of electors as might be necessary.[94] Other provisions presumably acceptable to northern sentiment were the prohibition of whipping as a penalty for crime,[95] and the command that the legislature should create a system of public schools free to all children of the state.[96]

By an ordinance of the convention, made valid by being embodied in military orders, April 20, 1868, was appointed for the submission of the new const.i.tution to popular vote, and also for the election of members of Congress and officers of the new state government.[97] This election resulted in the adoption of the const.i.tution by a majority of 17,699 votes, and in the election of a governor (Rufus B. Bullock by name), a legislature, and a full delegation to the lower house of Congress.[98] The remaining requirement of the Reconstruction Acts was that the new legislature convene and ratify the Fourteenth Amendment. This transaction will be reserved for the next chapter.

General Pope was inspired by the ideas and emotions from which reconstruction had sprung. He was an ardent friend of the reconstruction measures. He was convinced of the importance of suppressing the old political leaders in his district. He held with enthusiasm the optimistic views prevalent in the North regarding the negroes. Their recent progress in "education and knowledge," he said, was "marvellous," and if continued, in five years the intelligence of the community would shift to the colored portion.[99] The purport of his orders, the didactic style in which they are couched, the declarations of his principles which frequently accompany these orders, indicate the spirit in which he administered the office of military governor.

Most of the official acts of Pope concerned either the enforcement of obedience and the suppression of disobedience to the letter and spirit of the Reconstruction Acts, or the protection and promotion of the present interests of the freedmen.

In a.s.suming command he announced that in the absence of special orders all persons holding office under the state government would be permitted to retain their positions until the expiration of their terms. Their successors, however, were to be appointed by Pope alone; no elections should be held in the state except those required by Congress. The general expressed the hope that no necessity for interference in the regular operation of the state government would arise. It could arise, he said, only from the failure of state tribunals to do equal justice to all persons.[100] A few weeks later he announced that this necessity would also arise if any state officer interfered with or opposed the reconstruction measures; such an officer, it was "distinctly announced,"

would be deposed.[101] Governor Jenkins, on April 10, had issued a letter to the public, advising them to abstain from registering and voting under the Reconstruction Acts. Pope had excused him with a lecture, and then issued the order referred to, to make clear that no more advice of that sort from state officers would be permitted.[102] Opposition to reconstruction by state officers was declared to include also the awarding of state printing to newspapers which opposed reconstruction, and it was ordered that thereafter the state's patronage should be given only to loyal papers.[103] Another measure to the same end was the order that no state court should entertain any action against any person for any acts done under the military authority.[104] But while opposition by state officers was thus dealt with, freedom of public opinion was emphatically declared. The declaration accompanied a public reprimand administered to the post commander at Mobile for interference with a newspaper.[105]

The careful consideration for the needs of the freedmen shown in the general's method of forming the boards of registry, in his instructions to the registrars, in his provision of certificates of registration to migrating citizens, and in his extension of the time of election, has been pointed out. Of a similar character was the warning to employers that any attempt to prevent laborers from voting, or to influence their votes by docking wages, threats, or any other means, would be severely dealt with.[106]

In his first general orders, as we have said, Pope warned the judiciary against racial prejudice. It was probably disregard of this warning which caused the removal of about a dozen judges, justices of the peace, and sheriffs.[107] In the interest of equal justice, Pope also ordered that grand and pet.i.t jurors should be selected impartially from the lists of voters registered under the Reconstruction Acts.[108] Besides this general protection, individual relief was given by release from arrest, mitigation of the conditions of confinement, reduction of fines, and other special dispensations.[109] The method of securing justice mentioned in the Act of March 2, 1867, namely by ordering the trial of cases by military commissions, was employed by Pope only once.[110]

Such was the administration of Pope. Its influence on the _personnel_ of the state government was large, but was exercised only slightly through removal, chiefly through appointment to fill vacancies. Pope removed about fifteen state officers (almost all of whom were the judicial officers mentioned in the preceding paragraph). He filled about two hundred vacancies.[111] It is significant that a great number of these were caused by resignation. His acts of interference with the action of state officers were few, and with all his zeal for the success of reconstruction, he favored freedom of speech. Nevertheless, his opinions and his personal character, combined with such interference as he did practice, served to gain for him the dislike of the people and the rather unjust reputation of a petty tyrant.

Though Meade lacked Pope's zealous enthusiasm for reconstruction, yet he held much the same opinion as his predecessor regarding the duties with which he was charged. Like Pope, he forbade the bestowal of public patronage on anti-reconstruction newspapers.[112] Like Pope, he thought it his duty to depose state officers who opposed the execution of the Reconstruction Acts. When he a.s.sumed command he found the convention at loggerheads with the governor and the state treasurer. The convention had levied a tax to pay its expenses, and pending the collection of it had directed the treasurer to advance forty thousand dollars.[113] The treasurer (Jones by name) declined to do this except on a warrant from the governor, according to the regular practice. Meade requested Jenkins to issue the warrant. Jenkins refused, on the ground that the act would violate the state const.i.tution under which he held office, and that even if it were authorized by the Reconstruction Acts (which he denied), that was an authorization contrary to the Const.i.tution of the United States, upon which he would not act.[114] Thereupon, on January 13, 1868, Meade issued an order by which the governor (designated as the "provisional governor") and the treasurer (also designated as "provisional") were removed and Brigadier-General Ruger and Captain Rockwell "detailed" to act as governor and treasurer respectively.[115] For this act the convention rewarded Meade with a resolution of grat.i.tude.[116] Before the end of the same month the state comptroller and the secretary of state were also removed for obstructing reconstruction,[117] and later the mayor and the entire board of aldermen of Columbus shared the same fate.[118]

Toward the freedmen General Meade a.s.sumed the att.i.tude of his predecessor.

He made similar rules to protect them, in voting, from coercion by employers.[119] On the other hand, observing that too frequent enticement of negroes to political meetings was disturbing industry, he announced that interference of this sort with the rights of employers by political agitators would meet with the same punishment as interference with the rights of freedmen.[120]

Besides following the two policies of suppressing resistance and protecting freedmen, Meade used his power to a great extent simply in the interest of the general welfare. Public peace and order seemed threatened on the eve of the April election. Orders issued on April 4 expressed the belief that there existed a concerted plan, extending widely through the Third District and apparently emanating from a secret organization, to overawe the population and affect elections. Both military and civil officers were ordered to arrest publishers of incendiary articles and to organize special patrols.[121] Troops were distributed so as to command the parts chiefly in danger,[122] and the frequent resignation of office by sheriffs occasioned the order that no more resignations would be permitted, but that the sheriffs must retain their offices and execute the law.[123] By way of benevolent despotism, Meade, at the request of the convention, suspended the operation of the bail process and of the writ of _capias satisfaciendum_, and promulgated the provisions of the new const.i.tution for the relief of debtors until the const.i.tution should become law.[124] Likewise he gave special orders in eight or ten cases suspending trails, releasing prisoners, and otherwise preventing hardship or failure of justice. Whereas Pope had convened one military court, Meade convened six,[125] and before these thirty two cases were tried. Meade appointed about seventy state officers and removed about twenty.

These facts show that the two administrations we are considering were alike in policy, and that in action Meade's was the more vigorous.

Nevertheless, while Pope was disliked, Meade, thanks to a more attractive character, enjoyed a certain popularity.

Such was the process by which the Disciplinarians, the Humanitarians, and the Republican Politicians hoped to gain their respective purposes. What were the results of the process by the end of the administration of Meade?

For the Disciplinarians they were not encouraging. Military government was received not as discipline but as bullying. The spirit which reconstruction was designed to quell was only embittered; for to those who entertained it reconstruction was not the chastening of the nation, but the domineering of a political party, which it was hoped and believed would soon lose its ascendency.[126]

For the Humanitarians reconstruction had produced written laws regarding equality of civil and political rights, which were deemed a subject of congratulation. Outside the laws they would have found less encouragement.

The kindness of the white people toward the negroes had been changed to apprehension by the events of 1865. When the advent of negro suffrage brought the carpet-baggers to the South to marshal the negro voters for their own benefit, and when these men began to disturb the negroes by organizing them into mysterious Union Leagues and giving them indigestible ideas of their rights, apprehension became alarm. Negroes seized property of all kinds--including even plantations--by violence, supposing this to be one of their new rights. Already they had raised a new terror by crimes against white women, hitherto unknown. Some thoughtful men believed that the best defence against the dangers apprehended from the disturbed black population was kindness and friendly influence.[127] That opinion was not heard after the arrival of the carpet-baggers; its methods were then seen to be inadequate. Secret organizations were formed by white men for protection against the negroes.

These organizations, which sowed the seed of a subsequent harvest of crime, at first included men of the best character and of the highest standing.[128] Thus reconstruction, together with its written laws, had produced conditions which made the net Humanitarian results doubtful, at least for the moment.

For the Republican Politicians reconstruction did not produce in Georgia all that was to be desired. When the enterprise was first launched some of the white men, though offended, favored accepting the inevitable and endeavoring to elect good men to the const.i.tutional convention and to the new state government.[129] Others, carried further by their anger, determined to take no part in elevating the negroes and debasing their heroes. Prominent among these, as we have said, was Governor Jenkins.

These men stayed at home on October 29, 1867, contemptuously ignoring the "bogus concern called an election," which occurred on that day.[130] Many of these latter, by the time the "motley crew a.s.sembled at Atlanta" had finished its labors, decided to follow the example of the former. A convention met at Macon on December 5, 1867, formed a party, the Georgia Conservatives, named a ticket, with John B. Gordon at the head, and began a powerful campaign for the defeat of negroes and adventurers at the April election.[131] To make an active fight was recognized as a better course than to stand in ineffectual scorn.[132] As a result the sweeping victory expected by the Republican Politicians did not occur in Georgia. A Republican governor was elected; but in the state senate the seats were equally divided between the Republicans and the Conservatives, in the state house of representatives the Conservatives obtained a large majority, and of the seven Congressmen elected three were Conservatives.[133]

CHAPTER V

THE SUPPOSED RESTORATION OF 1868

The pa.s.sage of the Reconstruction Acts of 1867 determined the course of reconstruction, but did not stop discussion. When Congress met in December, 1867, the acts pa.s.sed 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 const.i.tutions 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 const.i.tutions 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 const.i.tutions by the plan of inaction. This risk should be avoided, since the adoption of a state const.i.tution 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 const.i.tutions 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 const.i.tutions. 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 const.i.tutions) that they were ent.i.tled to representation in Congress.[135] Congress now decided, instead of waiting for the ratification of the amendment, to pa.s.s 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 const.i.tutions.

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 const.i.tution 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 const.i.tution of none of them should ever be amended so as to deprive of the right to vote any citizens ent.i.tled to that right as the const.i.tutions then stood. A special condition was imposed on Georgia; namely, that Article V., section 17, ---- 1 and 3 of her const.i.tution 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]