3. Or the existing provisional government may be invested with the powers of the State, in such form and way and for such term as Congress in its discretion shall think best.
I doubt not that there are other modes within the jurisdiction of Congress; but these are all contained substantially in the three I have named.
It is not now proposed to remand Georgia to a territorial condition, or to subject the State to a military government. But it is proposed to place it in charge of the existing provisional government, which is to continue for a full constitutional term; and this is done as the best way of guarding against disturbing forces from the late Rebellion. It is said that this will be sufficient. I hope that it may be. I am satisfied that it is the least Congress can do in the exigency. Anything short of this will be the betrayal of those who have a right to our protection.
Against this simple and moderate proposition is interposed the Bingham Amendment, which, however plausible in form, is destructive in consequence. It is enough that it hands over the State to misrule and violence. Senators, how can you do this thing? How can you hesitate to take every heed and precaution against even the possibility of such an occurrence? You have the power. Then must you exercise it. In the recent history of Georgia nothing can be adduced to make you hesitate. On the contrary, all things, when properly understood, conspire to constrain the exercise of this power.
How feeble is the argument, that, because Governor Bullock was chosen Governor and the Legislature commenced its session at a given date now past, therefore in this process of Reconstruction the constitutional term of the Governor and of the Legislature must be limited to two years from that date! Besides ignoring all the controlling powers of Congress, this assumption ignores also the conduct of this very Legislature by which its organization was for a while defeated. Nothing is clearer than that the termination of the provisional government in Georgia was contingent on the performance of certain covenants, express and implied. These covenants have been outrageously violated. The very form of government underwent a change when persons clearly ineligible from disloyalty were allowed to take part in it, while citizens entitled to equal rights, and especially protected by the Reconstruction Laws, were tyrannically ejected from the Legislature. There was for the time being a usurpation. Had this violation of underlying covenants been anticipated, Reconstruction would have been postponed. No Senator will pretend the contrary. But Congress, in view of what has occurred, may justly do what it would have done, had it anticipated the result. It may postpone Reconstruction,—treating the Legislature meanwhile as provisional, and recognizing its acts only so far as in the judgment of Congress they are fit to be recognized.
If instruction be needed on this point, it will be found in the authoritative words of publicists, showing how even the terms of a treaty may be disregarded where there has been a change in the form of government.
Thus, Vattel does not hesitate to say,—
“It may say, upon a good foundation, that it would not have entered into an alliance with that nation, had it been under the present form of government.”[11]
One of our own publicists, Alexander Hamilton, has dealt with the same question in congenial language:—