After the swearing in of members had gone on in the house of representatives, as we have said, it was believed by the Radicals that some Conservatives were acting upon the judge’s interpretation and disregarding the attorney general’s, and that others had sworn or intended to swear falsely who were debarred even by the former. Ordinarily, if a man intends to swear falsely to a test oath there is no way of preventing him. In the existing state of public opinion, prosecution for perjury after the oath of office was taken was impossible. But Georgia had a military governor. By issuing orders he could prevent men whom he believed ineligible from swearing and could unseat those whom he believed to have sworn falsely. This Terry decided to do.
On January 13 he detailed a board of soldiers to investigate the cases of twenty-one members elect whose eligibility was questioned.[224] This board sat for two weeks, and found five men ineligible[225] and eleven eligible.[226] Terry accordingly forbade the five, and ordered the eleven, to be sworn in. The remaining five of the twenty-one, together with nineteen others, confessed ineligibility by filing with Bullock application for the removal of their disabilities by Congress. These also Terry forbade to be sworn in.[227] The actions and the decision of the board of inquiry were pronounced fair and honorable even by the Conservatives.[228] The nineteen applications for Congressional grace were said to have been procured by the Radicals through intimidation and fraud.[229] If the applicants were in fact ineligible but intended nevertheless to take the oath, then we must admire the cleverness of the Radicals in dissuading them, by whatever means they did it. If they used intimidation and fraud, their means were no worse than the end sought by their victims—the frustration of a law by perjury. On the other hand, if nineteen Conservatives who were eligible were induced by Radicals to petition for the removal of ineligibility, the fact may excite disapproval of the Radicals, but hardly pity for the Conservatives.
On January 13, when the board of inquiry was appointed, the “clerk pro tem.” of the lower house, by order of Bullock countersigned by Terry, had declared the house adjourned till January 17, to await the decision of the board.[230] On the 17th the house met and listened to the reading of two orders from Bullock indorsed by Terry; the one directing the state treasurer to issue fifty dollars to each member of the house, the other ordering the house to adjourn till January 19.[231] On the 19th the house met, and after one man had been sworn in was adjourned in the same manner till the 24th.[232] On the 24th it met and after two men had been sworn in was again adjourned by order of the governor.[233] On the morning of the 25th it met and was adjourned till afternoon. In the afternoon it was adjourned as soon as it had met till the next day. To the countersignature of Terry in this case was added the promise that this was the last adjournment of the series, since the board had now rendered so much of its decision as related to members of the lower house. The house was therefore ordered to swear in, on the next day, all the remaining members elect except those found or confessed ineligible, and to elect its permanent officers.[234] On January 26 this order was complied with; the Radical candidate for chairman was elected by a large majority, and the redoubtable “clerk pro tem.,” having presided for the last time, retired.[235]
The reorganized legislature on February 2 complied with the remaining requirements of the Reorganization Act by ratifying the Fifteenth Amendment. On the advice of Bullock it also repassed the resolutions of July, 1868, required by the Omnibus Act. This was not necessary to re-admission. It is true, the requirements of the Omnibus Act had, by the hypothesis of the Reorganization Act, never been “duly” fulfilled. But the Omnibus Act had been superseded by other legislation, which made new requirements and did not renew the old. The renewal of the unfulfilled requirements had been discussed in Congress and rejected.[236] Nevertheless, the resolutions were passed gratuitously.[237]
The Omnibus Act had definitely said that Georgia should be “entitled and admitted to representation in Congress as a state of the union when the legislature” had complied with the conditions mentioned in the act. The Reorganization Act was not so definite. It said; “The legislature shall ratify the Fifteenth Amendment ... before Senators and Representatives from Georgia are admitted to seats in Congress.” This might be construed as granting title to representation as a state as soon as the Fifteenth Amendment should be ratified, or as merely requiring the ratification and making no definite provision as to restoration but leaving that subject to be provided for by another act. The latter construction was adopted by the Georgia Radicals, since it prolonged the tenure of their military governor. It followed from this construction that the state government was still “provisional” and could not proceed with its business like a regular state government. So after electing United States Senators (the election of July, 1868, being regarded as invalid,[238] and the present election probably being designed to become valid by relation), the legislature adjourned until April 18, to await Congressional action.[239] In April Congress had taken no action, and the legislature, after sitting a fortnight, took another recess of two months.[240] Meantime the theory of military government had been faithfully observed. Though the legislature was only provisional, it could legislate with Terry’s permission. It passed a stay law on February 17, and asked Terry to enforce it.[241] On May 2 it passed revenue and appropriation acts,[242] but not before Terry had informed it through the governor that he would allow those acts to have the validity of regularly issued military orders.[243]
Whatever may have been the merits of the construction of the Reorganization Act adopted by the War Department, it is certain that the proceedings taken under it greatly astonished those who had passed the act. On January 19 the House of Representatives adopted a resolution requesting the general of the army to inform it by what authority three United States soldiers were acting as a committee in the legislature of Georgia.[244] On February 4 the Senate asked for official information regarding the proceedings had under the Reorganization Act.[245] The facts disclosed in response to this request created such surprise that the Senate directed the judiciary committee to inquire and report whether the act had been complied with.[246] The answer of the committee, as we saw in the early part of the chapter, was that the act had been misconstrued and violated. The appointment of presiding officers by the governor, the acts of those officers, the revival of the military governorship, and in particular the interference of Terry in the organization of the legislature—these, said the committee, were wholly unlawful. But though unlawful they had resulted in no substantial injustice, since all the men debarred by Terry were undoubtedly ineligible. And in any case a general state election was approaching, so that if any injustice had been done it would soon be righted. For these reasons the committee recommended that Congress undertake no more legislation for Georgia, but admit her representatives to each house as soon as possible.[247]
The committee believed that the Reorganization Act was to be construed as a law entitling Georgia to representation in Congress as soon as she had ratified the Fifteenth Amendment. This opinion was held by many Republicans, who had followed Trumbull’s example and who appeared from this time on as opponents of further Congressional interference in the South. The radical Republicans, however, led by Butler—those Republicans characterized by a Republican paper of the time as “the screeching wing” of the party[248]—insisted that Georgia must be admitted, as the first Reconstruction Act had said, “by law,” and that no law to that effect had been passed. The reason why this argument was urged was that the passage of a new act for restoring the state would give an opportunity to annex other provisions besides the declaration of restoration. The particular provisions designed to be annexed were for the purpose of prolonging the term of the present state government.
On February 25 Butler introduced the bill to admit Georgia.[249] One of its sections was as follows:
That the power granted by the constitution of Georgia to the general assembly to change the time of holding elections ... shall not be so exercised as to postpone the election for members of the next general assembly beyond the Tuesday after the first Monday in November in the year 1872.