and thereupon the said general assembly shall proceed to perfect its organization in conformity with the Constitution and laws of the United States, according to the provisions of this act.
When the legislature was assembled, every person claiming to be a member should take a test oath prescribed in the act, to the effect that he had never been a member of Congress or of a state legislature, nor held any civil office created by law for the administration of any general law of a state, or for the administration of justice in any state, or under the laws of the United States, nor served in the military or naval forces of the United States as an officer, and thereafter engaged in or supported hostilities against the United States; each person should take this oath or else an oath (also prescribed verbatim) that he had been relieved from disability by Congress according to section 3 of the Fourteenth Amendment. The exclusion on the ground of color of any person elected and otherwise qualified, the act declared “would be illegal and revolutionary,” and was “prohibited.” The act directed the President to use force in executing the act upon application from the governor.
The process ordered by the act seems simple and obvious, but the general of the army deduced much from it not apparent on its face. This act, he reasoned, implies that the Georgia government is provisional, and has never ceased to be so since March 2, 1867. And in that case the act of March 2, 1867, has never ceased to operate as to Georgia, since by its own terms it is to remain in force in each “rebel state” until each respectively has been “by law admitted to representation in the congress of the United States.” Georgia has not been so admitted, since she did not comply with the Omnibus Act. Therefore the Reconstruction Acts are still in force in Georgia, and the general orders of July 28, 1868, declaring the Third Military District abolished were a mistake. Accordingly those orders were countermanded by the general of the army on January 4, 1870, and General Terry, a prominent advocate, as we have seen, of the revival of military government in Georgia, was placed in command of the remnant of the Third Military District.[210]
The War Department’s deduction from the Reorganization Act of authority to institute again the system of the Reconstruction Acts came a month or two later under the consideration of the Senate judiciary committee, and was pronounced a gratuitous perversion of the act last passed. That act implied, to be sure, that the Georgia government was provisional; but it was plainly intended not to revive but to supersede the former regulations regarding that government. The purpose of the Reorganization Act was simply that the legislature should reorganize itself and ratify the Fifteenth Amendment. To this purpose military government had no relation. The Reconstruction Acts had not expired according to their own provisions as to Georgia, it was true, but they had been repealed by the Reorganization Act. This was further proved by the latter’s provision that military force should be used “upon the application of the governor.” The Reorganization Act, said the committee, “invokes military action in what it provides shall be done, and no more.”[211] Unfortunately this opinion was delivered some time after the theory which it demolished had been in practical operation.
Terry, having received the rôle of military governor, played it as the true heir to the power of his great predecessors. He removed from office three sheriffs and a county ordinary and appointed successors.[212] He intervened in eight private controversies and composed them with a strong hand.[213] In two cases before the state courts he substituted his command for the regular process.[214] Still more apparent was the official character which he had assumed, in his conduct toward the legislature. Possessing the power wielded by Pope and Meade, he could issue any orders he pleased to that body. For this reason, and because he was in sympathy with them, the Georgia Republicans ardently embraced and tenaciously clung to the theory that he was not a mere assistant in executing the Reorganization Act, but a military governor under the Reconstruction Acts.
On December 22, 1869, Governor Bullock issued his proclamation (which he signed “Rufus B. Bullock, Provisional Governor”), summoning the men elected to the legislature in 1868 to meet in Atlanta on January 10 following.[215] This duty, besides that of calling on the President for aid if he saw fit, was the only one expressly entrusted to Bullock by the Reorganization Act. Another one, however, was deduced by the following process of reasoning: The legislature can do nothing before its members are qualified according to the act. Since it can do nothing, it cannot even organize itself. But it is the purpose of the act that the legislature be organized. Therefore some one else must be intended to organize it. This duty naturally belongs to the governor, since the cognate duty of convening the body is imposed on him. In accordance with this reasoning, Bullock appointed a temporary clerk for each house, who should call the house to order and preside until all the members should be qualified or declared disqualified, by taking or failing to take one of the test oaths of the Reorganization Act.[216] This appointment of Bullock rested not only upon the reasoning stated above, but upon the approval of Terry, who, whether the reasoning was correct or not, could do, or order to be done, to the legislature anything he chose.[217]
When the legislature convened on January 10, each house was called to order by its temporary clerk, who proceeded to call the roll of names announced by Meade after the election of 1868, for the administration to each person of one of the required test oaths. On the same day the upper house completed the roll call and the swearing in of members, and effected a permanent organization. A Republican (Conley) was elected president by a large majority. On assuming the chair he delivered an oration, the spirit of which may be perceived from the following sentence: “The government has determined that in this republic, which is not, never was, and never can be, a democracy—that in this republic Republicans shall rule.”[218]
Far different was the course of events in the lower house. When that house assembled it found one Harris in the chair. Forgetting that his appointment had been indorsed by Terry and that he was, therefore, the virtual agent of a military governor who had the power to do anything he chose to the legislature, the Conservatives raised objection to his presiding and attempted to elect a temporary chairman in the usual way. This attempt precipitated a violent scene in the house, but was unsuccessful. Harris kept his seat and ordered the roll call for the swearing in of members to proceed. The names of seventy-eight persons were called and as many of these as were present were sworn in. At this point, the journal records, “the clerk pro tem. announced that the house would take a recess” until the next day. This the house did.[219] On January 11 and 12, the same proceedings occurred, the swearing in continuing until it was suspended and the house adjourned by the “clerk pro tem.”[220]
Without the theory that the Reconstruction Acts were still in force these proceedings in the lower house would have constituted the plainest illegality. But if Terry was a military governor and Harris his agent, they were legal. Though the Senate judiciary committee later declared this a false interpretation of the law, yet it was the official interpretation of the War Department, as we saw by the order appointing Terry.[221] The War Department had a right to decide what the Reorganization Act, which it was to aid in executing, meant. Its decision, whatever its character, was never officially overruled. Therefore the proceedings in the legislature were officially regular.
Before the legislature met, the Conservative papers had published an article by a state judge on the meaning of the first test oath of the Reorganization Act. It concerned especially the phrase: “any civil office created by law for the administration of any general law of a state.” It was argued that there were many state offices not included in this phrase—among them those of mayor, alderman and state librarian. Since these offices were not “for the administration of any general law,” but only for that of special or local law, former occupants of them who had supported the Confederacy could take the present test oath.[222] This construction would give an advantage to the Conservatives. To counteract it, Bullock applied to the attorney general for an official interpretation. That officer (Farrow by name) responded with a very reasonable opinion. He admitted that officers with merely local functions were not included in the phrase in question, but pointed out that many municipal officers had the powers of a justice of the peace. In such cases they were charged with the administration of general law and were included in the phrase. The state librarian, said Farrow, executed general law and was included.[223]