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:
Were the votes presented as of the state of Georgia to be counted, the result would be for —— for President of the United States, — votes; if not counted, for ——, for President of the United States, — votes; but in either case —— is elected President of the United States;
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:
| For Grant and Colfax | |
| Including Georgia’s votes | 214 |
| Excluding Georgia’s votes | 214 |
| For Seymour and Blair | |
| Including Georgia’s votes | 80 |
| Excluding Georgia’s votes | 71 |
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.