The bills of the first session of the forty-first Congress proposed to enforce the Fourteenth Amendment. To secure the enforcement of the disqualification clause they provided that each member of the legislature should be required to take an oath saying that he was not disqualified by the amendment, and that those who did not so swear should be excluded. To secure equal rights to the colored legislators they provided that all persons elected to the legislature (according to General Meade’s announcement of the result of the election of 1868) who should take the test oath required should be admitted, and that the expulsion of the negroes should be declared void. The federal military authority was to assist in executing these measures if requested by the governor. These measures, it will be observed, were only such as might legally be taken regarding Massachusetts if it violated the Fourteenth Amendment.
At the next session of Congress, beginning in December, 1869, the policy of enforcing the Fourteenth Amendment was abandoned for the alternative policy of legislating for a provisional government. The reason for the change was an emergency in which the Republican Politicians found themselves. In the previous February Congress had passed the joint resolution proposing the Fifteenth Amendment. By December it seemed certain that the number of ratifying states would fall short of the required three-fourths by just one, unless Congress could prevent it.[196] Georgia furnished the means of preventing it. In March her legislature had rejected the proposed amendment.[197] It could now be forced to ratify and thus complete the necessary majority. Georgia must then be treated not as a state which had violated the Fourteenth Amendment, but as a provisional organization subject to the uncontrolled will of Congress. A bill was accordingly prepared containing the same provisions as the bills of the preceding session, but adding this clause: “That the legislature shall ratify the Fifteenth Amendment before Senators and Representatives from Georgia are admitted to seats in Congress.” In accordance with its different legal basis the bill was entitled: “An act to promote the reconstruction of the state of Georgia.”
Little need be said of the manner in which this bill was passed. The usual partisan abuse prevailed on both sides. The Democrats made a remarkable opposition, led by Beck of Kentucky.[198] The Republicans were aided by a message from President Grant urging the intervention of Congress,[199] by the report of the reconstruction committee on affairs in Georgia,[200] and by a report from General Terry, who was stationed in the Department of the South, alleging that disorder was rampant in Georgia and the need of further military government by federal authority imperative.[201] Terry’s superior officer, General Halleck, added a postscript to Terry’s report to the effect that Terry was mistaken, that the disorder in Georgia was much less than was commonly believed, and that federal interference was highly inadvisable.[202] Aided by the report and undeterred by the postscript, the Republicans discoursed of “rebel control” and “murder” with unprecedented effect. Butler said that Congress must act instantly; if action on the bill is postponed, he said, “the rest of the Republican majority of that state may be murdered, even during Christmas week, when the Son of God came on earth to bring peace and good will to man.”[203]
The bill became law on December 22, 1869.[204] Congress thus decided at last to adopt the opinion of the Senate judiciary committee, that Georgia had not become a state through the Omnibus Act. General Meade, in declaring the contrary, had been mistaken. Bullock, in calling himself governor, had been mistaken. The House of Representatives, in admitting members sent from Georgia, had been mistaken; they were de facto members, but had no legal right there.[205] The legal basis of the act of December 22 was then the same as that of the original Reconstruction Acts.
The question which had been raised in the debates on these acts—What legal effect could the action of a body not the legislature of a state have on the adoption of an amendment to the constitution?—was raised again here. Some of the Republicans argued that such action could have no effect and should not be required.[206] Under these circumstances there was a more earnest effort than any heretofore made to defend such a requirement. It was answered: True, the body which will ratify the amendment in Georgia will not be a state legislature at the time; but it will later become a state legislature, and then by relation the ratification will be imputed to the state legislature and will thus have legal effect. Relation, an operation known to private law, had been applied to constitutional law in several previous cases, in order to give to acts done by the legislatures of territories the same effect as if they had been done after statehood was obtained.[207] The ratification by Georgia would be valid by relation.[208]
CHAPTER VIII
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: