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 reënforced 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.