Message of the President of the United States, communicating, in compliance with a resolution of the Senate of the 4th instant, information in regard to the proceedings had in the state of Georgia in pursuance of the recent act of Congress entitled "An act to promote the reconstruction of Georgia," and in relation to the organization of the legislature of that State since the passage of that act ...

. IST CONGRESS, ) 2d Session. (

SENATE.

Ex. Doc. 4 No. 41.

MESSAGE
OK Till.
PRESIDENT OF THE UNITED STAGES,
UOMMKXICATIXti.
In compliance trith a resolution of the Senate of the 4th. insttuif, information in regard to the proceedings iiad in the State of Georgia- in pursuance, of the recent act of Congress entitled "An act to promote the reconstruction of Georgia," and in relation to the organisation of tl>e legislature of -that State since the passage of that act.
FKBRUARY 14,1870. Read, referred to the Committal* on thn .Tmlicijiry. :iixl i>nli-i-fI ti> be printed.
To the Senate#f tlte United Slates: In reply to the resolution of the Senate of the 4th instant, requesting
information in regard to the proceedings had in the State of Georgia, in pursuance of the recent act of Congress entitled "An act to promote the reconstruction of the State of Georgia," and in relation to the organiza tion of the legislature of that State since the passage of that act, I here with transmit the report of the Secretary of War. to whom the resolu tion was referred.
U. S. OR AST.
EXECUTIVE MANSION,
Washington, D. O., February 11, 1870.

WAR l)ElAUXMEXT,
Vvashingtou, February !>, lS7l>.
The Secretary of War, to whom was referred the resolution of the Senate of the lluited States, dated February 4, 1870, has the honor to submit to the President the accompanying papers, containing all the information in his possession relative to the proceedings hail in the State of (reoigia, in pursuance of the recent act of Congress to promote the reconstruction ot sniil State, and in relation to the organization of the legislature of that State since the passage of the act drscrilud.
W.M. W. 1JELKNAP. Heeretary of \Var.

2

RECONSTRUCTIO-V OF GEORGIA.

[General Orders No. 85.]
HEADQUARTERS OF THE ARMY, ADJUTANT GENERALS OFFICE,
Washington, December 27, 1869. The following act of Congress is published for the information and guidance of all concerned:

[1rnuo No. J.J AN ACT to promote the reconstruction of the State of Georgia. JSc it enacted by the Senate and House of Itcprexcntalircs of the United State* of America in Congress assembled, That the governor of the State of Georgia be, and hereby is, anthorized and directed forthwith, l>y proclamation, to summon nil persons elected to the general assembly of said State, as appears by the proclamation of George G. Meade, the general commanding the military district including the State of Georgia, dated June 25, 1868, to appear oil some day certain, to bo named in said proclamation, at Atlanta, in said State; and thereupon the said general assembly of said State shall proceed to perfect its organization in conformity with the Constitution and laws of the United States, according to the provisions of this act. SEC. 2. Jutl l>e it farther enacted, That when the members so elected to said senate and house of representatives shall be convened, as aforesaid, each and every member and each and every person claiming to bo elected as a member of said senate or house of representatives shall, in addition to taking the oath or oaths required by the consti tution of Georgia, also take and subscribe and tile in the office of the secretary of state of the State of Georgia, one of the following oaths or affirmations, namely: "I do solemnly swear (or affirm, as the case may be) that I have never held the office, or ex ercised the duties of, u senator or representative in Congress, nor been a member of tho legislature of any State of the United States, nor held any civil office created by law for the administration of any general law of a, State, or for the administration ofjustice in any State or under the laws of the United States, nor held any office in the military or naval service of the United States, and thereafter engaged in insurrection or rebel lion against the United States, or gave aid or comfort to its enemies, or rendered, ex cept in consequence of direct physical force, any support or aid to any insurrection or rebellion against the United States, nor held any office under, or given any support to, any government of any kind organized or suiting in hostility to the United States, or levying -war against the United States. So help me God, (or on the pains and penal ties of perjury, as the case may be)." Or thr following oath or affirmation, namely: " I do solemnly swear (or affirm, as the case may be) that I have been relieved, by an act of the Congress of the United States, from disability as provided for by section three of the fourteenth amendment to the Constitution of the United States. So help me God, (or on the pains and penalties of perjury, as the case may be)." Which oath or affirmation, when so filed, shall be entered of record by the secretary of state of the State of Georgia, and said oath or affirmation, or a copy of the record thereof, duly cer tified by said secretary of state, shall be evidence iu all courts and places. And every person claiming to be so elected, who shall refuse or decline or neglect or be unable to take one of said oaths or affirmations above provided, shall not be admitted to a seat in said senate or house of representatives, or to a participation in tho proceedings thereof, but shall be deemed ineligible to such seats. SEC. 3. And lie it further enacted, That if any person claiming to be elected to said senate or house of representatives, as aforesaid, shall lalsely take either of said oaths or affirmations above provided, he shall be deemed guilty of perjury, and shall suffer the pains and penalties thereof; and may be tried, convicted, and punished therefor by the circuit court of the United States lor the district of Georgia, in which district said crime was committed; and the jurisdiction of said court shall be sole and exclu sive for the purpose aforesaid. SEC. 4. And lie it further enacted, That the persons elected, as aforesaid, and entitled to compose such legislature, and who shall comply with the provisions of this act, by taking one of the oaths or affirmations aliove prescribed, shall thereupon proceed, iu said senate and house of representatives to which they have betjn elected respectively, to reorganize said senate and house of representatives, respectively, by the election and qualification of the proper officers of each house. Sue. 5. .-Ind bt it further enacted, That if any person shall, by force, violence, or fraud, willfully hinder or interrupt any person or persons elected iiis afoivsaid from taking either of the oaths or affirmations prescribed by this ant, or from participating in the prowdiiiffs of said senate or hnnsu of rvprowntati vis, after having taken onu of said oaths civ affirmations, and otherwise complied with thi act. he shall be deemed guilty

RECONSTRUCTION OP GEORGIA.

3o

of a felony, and may be tried, convicted, and pnnished therefor by the circuit or dis trict conrt of the United States for the district of Georgia in \yhich district said offense shall be committed; aud shall be punished therefor by imprisonment at hard labor for not less than two uor more than ten years, in the discretion of the court, and thejurisdiction of said courts shall be sole and exclusive for the purpose aforesaid.
SEC. 6. And be it further enacted, That it is hereby declared that the exclusion of any person or persons elected as aforesaid, and being otherwise qualified, from participapatiou in the proceedings of said senate or house of representatives, upon the ground of race, color, or previous condition of servitude, would be illegal and revolutionary, and is hereby prohibited.
SEC. 7. And be it further enacted, .That upon the application of the governor of Geor gia., the President of the United States shall employ such military or naval forces of the United States as may be necessary to enforce and execute the preceding provisions of this act.
SEC. 8. And be it further enacted, That the legislature shall ratify the fifteenth amend ment proposed to the Constitution of the United States before senators and representa tives from Georgia are admitted to seats in Congress.
Approved December 22,1869.

By command of General Sliermau:

E. D. TO\VNSEXD, Adjutant General.

[Telegram.]
ATLANTA, GEORGIA. December 23,1869. General W. T. SHERMAJJ,
Commanding Army of the United States: I have received a telegram from Governor Bullock, stating that he aud others have urged upon the President my assignment to the -command of Georgia as a military district. I beg that this may not be done. The matter will be decided to-night.
A. H. TEKRY, Breret Major General.

[General Orders Jfo. 83.]
HEADQUARTERS OF THE ARMY, ADJUTANT GEJTERAZS OFFICE, Washington, December 24, 1869.
Brevet Major General A. H. Terry, in addition to his duties as com mander of the department of the South, is, by order of the President of the United States, appointed to exercise the duties of commanding gen eral of the district of Georgia, as defined by the act of Congress approved December 22,1869.
By command of General Shennau: E. 1). TO\V3fSE2?D, Adjutant General.

[Telegram.]
HEADQUARTERS OF THE ARMY, Washington, December 24,1869.
General A. H. TERRY, Commanding Department of the South, Atlanta, Georgia :
Your cipher dispatch is received and has been shown to the Presi dent and Secretary of War. Before its receipt the President had ordered
413942

4

RECONSTRUCTION OF GEORGIA.

that you should perform the duties of district commander in addition to those of department commander, and though he feels disposed to comply with any request you should make, still he thinks you, better than any other officer, can execute the delicate responsibilities of the office. I concur in this, and hope you will cheerfully conform. The printed order and a certified copy of the law will come to you by mail and require less labor on your part than at first appears. Do not remove any officer, but let matters continue as at present until a necessity arises. Governor Bullock seems very anxious that you should remain and tells me ho has notified yon of his preference.
W. T. SHERMAjff, General.

[Telegram.]
ATLANTA, GEORGIA, January 2, 1870. General W. T. SHERJMAN, Commanding Armies of the United States:
I have assumed command of Georgia as a district. Since my last telegram I have become convinced that my assignment as a district commander was necessary, and I think that I should be clothed with the powers given by the reconstruction acts.
I would suggest that the orders proposed in my report of August 14th be issued. 1 think that the knowledge that I have those powers would go far to prevent the necessity for their use.
A. H. TERRY, Brevet Major General.

[General Orders No. 1.]
HEADQUARTERS OF THE ARMY, ADJUTANT GENERALS OFFICE,
Washington, January 4, 1870. By direction of the President of the United States, so much of General Orders 2?o 103, dated Headquarters Third Military District, (Depart ment of Georgia, Florida, and Alabama,) Atlanta, Georgia, July 22, 1808; and so much of General Orders No. 53, dated Headquarters of the Army, Adjutant Generals Office, Washington, July 28, 1808, as refers to the State of Georgia is hereby countermanded. Brevet Major General Terry will, until further orders, exercise within that State the powers of the commander of a military district, as provided by the act of March 2, 1837, and the acts supplementary thereto, under his assign ment by General Orders 2To. S3, dated Headquarters of the Army, Adju tant Generals Office, Washington, December 24,1869.
Uv order of General Sherman : E. D. TOWNSEND, Adjutant Genera!.
[Telegram.]
ATLANTA, GA., January 11,1870. General W. T. SUERSIAN, Commanding Armies of tlie United States:
The senate of Georgia has been organized. I am informed and be lieve that at least two of the persons who took the oath in that body

RECONSTRUCTION OP GEORGIA.

5

are disqualified. The house of representatives is partially sworn. I am informed that nine disqualified persons have already taken the oath. It is expected that others will do so. One of the senators who took the oath stated night before last that he believed himself disqualified, but that his people expected him to take it. An immense pressurehas been "brought to bear on disqualified persons to induce or compel them to take the oath. Money has been raised to defend them in case of prose cution. Am I authorized, as military commander, under the reconstruc tion acts, and under sections four and five of the act of December 22,1869, to investigate the question of eligibility, and determine for the time being the right of these persons to seats, or must the taking of the oath be considered conclusive. It is very important that any action which may be taken should be taken at once. Please instruct me.
ALFRED H. TERRY, Brevet Major General Commanding.

[Telegram sent in cipher.]
HEADQUARTERS OF THE ARMY, Washington, January 12,1870.
Brevet Major General A. H. TERRY, Atlanta, Georgia: Tour dispatch of this morning shown the President and Secretary of
War, and the result is in these words: Exercise your own discretion. If a flagrantcase arises, where a disqualified person proposes to take the oath, investigate the question of eligibility, and determine for the time being his right.
W. T. SHERMAN, General.

[Telegram.]

ATLANTA, GEORGIA, January 12,1870.

General W. T. SHERMAN, Commanding Armies United States:

1 feel great interest in the decision of the questions submitted in iny last telegram. Should the disqualified persons retain their seats, I think they will adopt the fifteenth amendment, in order to get rid of the army. But I much fear that they will not pass the laws necessary to

put down the Ku-Klnx.

A. H. TERRY, Rreret Major General.

[Telegram.]
ATLANTA, GEORGIA, January 12, 1S70. General W. T. SHEEMAJJ:
It is exceedingly important that I should receive a reply to my first dispatch of yesterday before to-morrow morning. I earnestly request one.
ALFRED H. TERRY, Brevet Major General.

6

RECONSTRUCTION OF GEORGIA.

[Telegram.]

General W. T. SIIEEJIAN-.

ATLANTA, GEORGIA,
January 12, 1870.

Outrages vrhich hare occurred in Warren County have ,vcry nmclr excited the citizens, and they have made application for active military protection. For several nights they have been standing guard. I have thought it necessary to remove the sheriff who was acting under an order of a local court, and T have appointed the man who was elected at the last election to that office, but was driven from the county by the reg ulators. Referring to your dispatch on the subject of removals, I hope that you will approve.
ALFRED II. TERRY, Brevet Major General.

[Telegram.] .
HEADQTTARTEKS OP THE AEMY,
Washington, Jamtary 12, 1870. General A. II. TEEEY,
Commanding Department of the South, Atlanta, Georgia: I answered your dispatch this day, and am assured it was sent. I will sustain you in the exercise of any authority that will maintain sub stantial good order until the State of Georgia, is recognized by the ex ecutive and by Congress. Even then, some lawful means will be found whereby we can defend our own friends against the Ku-Klux or band of assassins. I think the use of our soldiers should be limited to maintaining the peace, while you personally are vested with executive authority over governor and legislature till the State is fully admitted. You, on the spot, must be the judge of how far it is politic or wise to interfere with the component parts of the legislature elect, or with their proposed legislation.
W. T. SHERMAtf, General.

[Telegram.]

, ATLANTA, GEOUGTA,

General W. T. SUERMAN,

Jamtary 12, 1870.

Commanding Armies of the United States:

By the law of Georgia, iu case any person elected to any office is constitutionally disqualified, the person receiving the next highest

number of votes is entitled to the ofiice. Under the law of December 22, those who fail, neglect, or refuse to take one of the oaths therein, provided, are declared to be ineligible. The election returns showing

who received the next highest votes are in this office. Can I add to General Mcades proclamation, au order giving the names of those who received tbo second vote, and declaring them entitled to seats?
A. H. TERRY,

Major General.

RECONSTRUCTION OP GEORGIA.

7

(.Telegram sent in cipher.]
HEADQUARTERS OF THE ARMY, Washington, January 13.1870.
General A. H. TERRY, Atlanta, Georgia; Telegraphed you last night, and now have yours about proclaiming
those who received the second highest votes elected in case the first is disqualified for any reason. I see no objection, if it will stand the test of law. The legislature is at best provisional.
AV. T. SHERMAN. General.

[Telegram received iu cipher.]
ATLANTA, GEORGIA, January in, 1870. General "YV.T. SHERMAN:
Your dispatch received. Nearly all have taken the oath under your dispatch. I am investigating tlieir cases. Am I right ?
A. IT. TERRY, lirevet Major General

[Telegram received iu cipher.]
ATLANTA. GEORGIA, January 13, 1870. The PRESIDENT of the United States:
The governors interference consists in adjournment of the house in order to hear from Washington relative to disqualified persons under General Skermans dispatch. I have ordered an investigation as to eligibility. I think it would be unfortunate to countermand my action.
A. H. TERRY, Rreret Najnr General.

[Telegram received in i-iplu-r.]
ATLANTA, GEORGIA, January 13,1870. The PRESIDENT of the United States:
The trouble arises from the union of a few republicans with the dem ocrats. Their pretext is that the governor is dishonest and has stolen the funds of the State. I believe the charges unfounded and think they are governed by other motives.
A. H. TERRY, fireret 3fajnr Genera?.

[Telegram sent in cipher.]
HEADQUARTERS OF THE ARMY, Washington, IX C.. January 14. 1S70.
General A. H. TERRY, Atlanta, Georgia: I have shown the President your dispatch of January 13, and he
says you are acting all right. W. T. SHERMAN. General.

8

RECONSTRUCTION OF GEORGIA.

[Telegram received in cipher.]
ATLANTA, GEORGIA, January 14, 1870. General W. T. SHISRMAN :
I send the following facts: One senator took tbe oath on Monday. He now has applied to withdraw it, saying that he took it under a mis apprehension. He was a judge before the war, and admits that lie gave aid and comfort. He says that party pressure was too strong for him to resist. The house committee, at the first session, reported but three (3) members disqualified, but I hare seen the applications, recently made, of sixteen (16) of them for relief from disability, thus admitting their ineligibility. The fight is making by republicans who, at former ses sions, united with the democrats to elect senators. They wish to pre vent a new election, and now join with the democrats in the effort to control the organization of the house, so that none of the ineligible members may be unseated. I think the fairest way for all parties is to determine before the organization who are entitled to sit, and let them organize. My object is not to favor either side in this contest, but only to prevent disqualified persons from getting into the legislature. I un derstand it to be decided that I have the power to do this under the re construction acts, and if I have the power, I think it my duty to exer cise it. Please show this to the President as being partly in reply to his dispatch.
A. H. TERRY, Brevet Major General.

[Telegram.]
ATLANTA, GEORGIA, January 15,1870. General \V. T. SJIERMAN : 1 transmit a copy of a protest, presented to me by a committee appointed at a meeting of republicans and demo crats, with the request that I would forward it at once.
ALFRED H. TERRY, Brevet Major General.

I am instructed l>y Hu- committee appointed by this body to make, the following report:
Whercns we, members elect to the general assembly of this State, asuembled in this city on Monday, the 10th instant, in answer to a proclamation of his excellency R. B. Bullock, governor of Georgia, issued in accordance with the provisions of a bill recently passed by Congress to promote the reconstruction of the State of Georgia; and whereas the said bill provides, section one, that the governor is authorized, to Kummon all pcrsous elected to the general assembly, as appears by the proclamation of General George G. Meade, dated June 25,1868, to appear on some day certain to be named in said proclamation, at Atlanta, and thereupon the said general assembly is authorized to perfect its organization in conformity with the Constitution and laws of the United States, according to the provisions of said act; and whereas the governor, as we believe in violation of the provisions of said net, directed one A. L. Harris, not a member of said general assembly, bnt an appointee of the governor on the Western and Atlantic railroad, property of the State, to organize the house of representatives; and whereas said Harris has acted arbitrarily, and has assumed in violation of law to dictate to members duly elected as aforesaid what they shall, and shall not say and do, and has refused to allow them to proceed to perfect the organization of said house of representatives, in accordance with the provisions of said act, and has willfully hindered and interrupted the organization of said house by adjourning it from day to day, against the will of a majority of the members thereof and in violation of said law of Congress; and whereas the said law provides, section two, that said members when convened shall take certain oaths, which most of the members of said house duly quail-

RECONSTRUCTION OP GEORGIA.

9

fied under said act have already done, and all who-were present who tbink themselves qualified have presented themselves and demanded to be sworn, in accordance with said net; and whereas the said Harris, in direct violation of the said act of Congress, has dismissed the said members who were ready aud willing to organize in accordance with the provisions of the said law of Congress, aud has willfully hindered and inter rupted the said members from participating in the proceedings of said house of repre sentatives, after having taken the oaths prescribed, and otherwise complied with said act; we, therefore, present the following protest aud appeal to the general command ing the third military district:
The law of Congress nnder which we are convened being thus overridden, the consti tution and laws of the State thus disregarded, and desiring at this hour to advance no political purposes, but earnestly wishing an organization of this general assembly in accordance with law, that the quiet of our homes may be secured and our little prop erty saved from depredation, we, divided politically as republicans aud democrats, but united in this effort, protesting against the proceedings already had, and the action now being had, in the organization of the general assembly, because it is in direct vio lation of the law of Congress itwelf which now affords the warrant for our assembling as a legislature; because it is designed, as we believe, for the purpose of defeating a fair organization of the two houses until corrupt and dangerous men shall so shape affairs that the State may fall helpless into their hands for plunder and oppression; because it takes the power of determining qualifications of senators and representa tives from the former, which the law of Congress does not interfere with, and which the Constitution provides. Thus truthfully aud earnestly expressing our desires, and making this our protest, we appeal to the general commanding, as a soldier of unsullied honor, a servant of the republic, to exercise the power in him by the federal govern ment intrusted, to rescue the people of Georgia from violence and outrage with which they are now threatened by boldly wicked meu.
.1. E. BRYAXT. Chairman.

[Telegram received in cipher.]
HEADQUARTERS MILITARY DISTRICT OF GEORGIA,
Atlanta, Georgia, January 15, 1870. General W. T. SHERMAJJ :
A question is being presented on which I would like the opinion of better legal authority than myself. Did a man who entered upon an office under the laws of this State after the passage of the ordinance of secession, and before the Presidents proclamation, hold an office under a State within the meaning of the oath in the act of December 22, so that if he engaged in the rebellion he is now ineligible ?
ALFRED H. TERRY, Brevet Major General.

[ Telegram sent- in cipher.]
HEADQUARTERS ARMY OF THE UNITED STATES,
Washington, D. <?., January Ifi, 1870. General A. H. TERRY,
Commanding Department, Atlanta, Georgia. The protest is received and has been submitted to the President. If Harris is not a member elect to the legislature of Georgia he has no right to act as an officer to organize it. If he is a member, then he can only act as the presiding officer when so chosen by the members. If any one is to be appointed under any circumstances, you are the per son to appoint, not Governor Bullock. The cipher dispatch will be submitted to the Attorney General to-morrow, and his answer wilt be sent you as soon as received.
W. T. SHERMAN, General

10

RECONSTRUCTION OF GEORGIA.

[Telegram.]

ATLANTA, GEORGIA, January 17,1870.

By special request of the committee who presented me with the reso

lutions adopted at a republican mass meeting held in Atlanta, Georgia,

January 15, 1870,1 send them to yon by telegraph, viz:

Whereas our political opponents, who have persistently fought the

government of the Union by arms in rebellion and by ballots in peace,

have assumed to dictate to the authorities in the present juncture of public affairs; and whereas these opponents now attempt to disguise

their treacherous schemes under the guise of good intentions; and

whereas these opponents assume to believe that public interests will not be safe, in the hands of republicans; and whereas charges are made

against our friends in public position: Be it Resolved, By the republican members of the legislature and the repub
lican citizens of Georgia in mass meeting assembled, and it is hereby

resolved, that we indorse the administration of President Grant and the wise course pursued by the gallant officer whom the President has assigned to command in this district.

Resolved, That in General Terry we have a soldier and a gentleman,

a man too wise to be influenced by rebel allurements, and too just to be governed by partisan feelings, and that we repose confidence in him as one who will see to it that no person who is disqualified will be permit

ted to obtain seats in our legislature, and thereby give us an organiza

tion that can and will secure our restoration to the Union, and ratification of the fifteenth amendment.

Resolved, That we have, as ever heretofore, full confidence in the in

tegrity, wisdom, and patriotism of our chief magistrate, and fully

indorse his course.

Resolved, That a committee of ten be appointed to wait upon General Terry on Monday morning next and present to him a copy of these reso

lutions, and to assure him that the republican party of Georgia fully

approve of all the acts so far done toward the proper organization of the general assembly.

ALFRED H. TERRY,

General W. T. SiiKRttAN,

Brevet Major General.

Waxhinyton. D. C.

[Telegram sent in cipher.]
HEADQUARTERS ARMIES OP THE UNITED STATES,
Washington, J>. C., January 18, 1870. General A. H. TERRY,
Commanding, &c., Atlanta, Georgia : Your dispatch of January 15 was submitted to the Attorney General, who answers: " A legislature or State government organized under the ordinance of secession was not a legislature of a State of the United States, within the meaning of the act of December 22,1869."
W. T. SHERMAN, General.

RECONSTRUCTION OF GEORGIA.

11

[Telegram received ;:i cipher.]
HEADQUARTERS, ATLANTA, GEORGIA.
Taiwan? 18, 1870.
General W. T. SUERMAN,
Washington, I). C: Yonr dispatch received. I think that I must take the responsibility of Harriss appointment, for I approved it, as I have the adjournments, which have been made tor the purpose of obtaining instructions from you, aud for the purpose of making the investigation in regard to eligi bility. I do not think that Harris has acted unfairly. He. has an nounced the adjournments without a vote of the house, but those adjournments were for the above purposes, and were with my approval. It seemed to mo that no member elect could act in the organization until he had taken the oath, and that to avoid confusion some one must be appointed to call the roll and see the oath administered. He was not appointed presiding officer, but clerk pro tern. I think that it is by far the fairest course to determine the question of eligibility before the. organization, and for this purpose other adjournments will be neces sary. After what I have said above, shall I understand that Harris should act no longer; and if so, shall I permit all persons who have taken the oath to take part in the election of a temporary chairman, without reference to their eligibility?
ALFRED H. TERRY, Brerct Major General.

[Telegram.]
ATLANTA, GEORGIA, January 18, 1870. General W. T. SHEKMAN:
A set of resolutions passed by the colored members of the legislature, and supporting Governor Bullock and the course pursued here, have been presented to me, with the request that I would notify you of the fact and forward them. I send them by mail.
ALFRED II. TERRY, Itrerct Majnr General.

ATLANTA, GEORGIA, January 18.1870.
In behalf of ourselves, the ninety-eight thousand colored voters, and the five hundred thousand colored citizens in Georgia whom we repre sent
We, the colored members of the general assembly, feeling from our past experience a deep interest in the proper organization of the legis lature under the reconstruction acts of Congress, have met together to consider the present emergency, with the tacts, which are apparent, alleging that disqualified persons are not to be excluded and loyal men who were legally elected awarded their seats, do hereby adopt the fol lowing preamble aud resolutions:
Whereas, "NoState shall mako or enforce ;m.v law which shall abridge the privileges or immunities of citizens of the United States," and by admitting illegal persons to the. power of legislators, our rights will bo abridged, judging the future by the past; auil whereas onr expulsion from the legislature on account of our color, in violation of t!u>

12

RECONSTRUCTION OP GEORGIA.

civil rights bill nud I4th article of amendment to the Constitution, was accepted by disloyal persons as evidence that colored men anil women in Georgia had no rights that white men were bound to respect, and was followed by the whipping, robbing, and murdering of onr people for no reason but our helpless condition ;and whereas it is reported that the government is disposed to regard the protestations of disloyal pernons as being worthy of consideration, when we know that they are not to lie trusted, and should not be believed: Therefore, be it
Resolved, That we respectfully request the government to look at the past :tnd be controlled by it for the future, and therefore demand a rigid execution of the law by the exclusion of disqualified persons, and, by giving their seats to eligible persons who were legally elected aid us in maintaining our rights, protect our wives and daugtcrs from insult and infamy, and our property from the despoiler.
Resolrcd, That the order of his excellency Governor R. B. Bollock, approved by Major General Terry, appoiuting J. G. W. Mills as clerk to organize the senate, and the Hon. A. L. Harris as clerk to organize the house, is not in our opinion ill conflict with the bill to promote reconstruction in Georgia.
Resohcck, That the charges alleged against his excellency, Governor Bullock, of cor ruption in appropriating State funds, has no foundation in fact and could not be sus tained upou the evidence adduced before any impartial jury.
Resolved, That a committee be appointed to present these resolutions to General Terry, and respectfully request him to send them to tlie President of the United States.
A. ALFRED BRADLEY, T. J. CAMPBELL, GEO. WALLACE, W. H. HARRISON, J. M. SIMMS,
Committee.

[Telegram received in cipher.]
ATLANTA, GEORGIA, January 20,1870. General W. T. SUERJIAJI, Washington, D. C.:
Your letter of 17th received. As yet I have excluded no member of either honse. The only acts done are the adjournments to give time for an investigation to find out whether there are any "flagrant" cases. The Attorney Generals opinion was entirely in accordance with my own. I should have decided the same way, but I wanted the opinion to fortify myself against pressure here. The house now stands adjourned till Monday. A staff officer left here last night with dispatches for you. Among them is a presentation of the law of the whole case in behalf of Bullock. I will do nothing more until I get your reply to it. I shall consider your letter an order, and exclude no one unless after getting the dispatches you modify it. It is very important that the final deter mination of this whole matter be made and communicated to me before Monday morning, so that if no further action is to be taken, the house may then he organized.
ALFRED H. TERRY, Brevet Major General.
[Telegram received in cipher.!
ATLANTA, GEORGIA, January iiO, 1870. General W. T. SHEEMAN : At the request of Governor Bullock, I <*end you the following proposition, although it seems to me to be just what yon in your letter recommended me not to do, namely, the house to be

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13

organized on Monday, excluding from the organization by military authority those members elect whose cases are now being investigated. Those cases to be then referred to the house itself for decision.
ALFRED H. TERRY, Brevet Major General.

[Tolpgn-m sent in cipher.]
HEADQUARTERS ARMY OF TEE UNITED STATES,
Washington, T). C., January 21, 1870. General A. H. TERRY, Commanding, &c., Atlanta, Georgia:
Your two cipher dispatches of 20th received. Will await the arrival of the aid with dispatches. In the mean time, I add that I thiuk the. legislature should organize next Monday, including all members duly elected, subject to the oaths prescribed, and the conditions of the recousti notion law, excluding only the flagrant cases to be determined by jourself, uuder the order of the President.
W. T. SHERMAN, General.

[Telegram.]
HEADQUARTERS OF THE ARMY,
Washington, January 21, 187(1. General A. H. TERRY, Atlanta, Georgia:
Captain Telford arrived. I send the papers for decision of Attorney General. Will endeavor to give you full answer on Sunday.
W. T. SHERMAN, General.
HEADQUARTERS MILITARY DISTRICT OF GEORGIA,
Atlanta, Georgia, January 19,1870. GENERAL: A question upon which I have already asked and received some instructions, is now assuming such proportions, and is being so earnestly debated by rhe contending parties here, that I think it my duty to submit it to you at greater length than I have hitherto done. That question is, "Are the persons who received the second highest vote at the election at which the members of the present legislature were chosen, entitled to the seats of those i>erson.s who have failed, neglected, or refused to take one of the oaths provided in the act of December '22, 1809, and who are declared by the act to be ineligible, and to the seats of those who may be found to be ineligible by the board now in session; and if they, the second highest, are entitled to such seats, can I, as a district commander, under the reconstruction acts, declare and direct that they shall be seated and permitted to take part in the organization of the house?" I have been most strongly urged by Governor Bullock to take this course, but I have declined to do so until I should be clearly satisfied that it would be in accordance, not only with the law of Georgia, but with the act of December 22. The inclosed are copies of papers which have been i resented to me-

14

RECONSTRUCTION OP GEORGIA.

The principal ones are the arguments presented in support of the two sides of the question.
The one in support of the claim that the second highest candidate is entitled to the seat, is from one of the most distinguished lawyers of Georgia, and I think merits especial attention. The first portion of it is a very able, exhaustive, and, I think, conclusive discussion of the general powers of a military commander here; the latter part bears di rectly on the question at issue. The greatest possible interest is felt by all parties in the decision of this matter, as it may determine the politi cal character of the house of representatives. No determination of it which 1 could make would be satisfactory to the contending parties, but I think that a decision by some high legal authority would be ac quiesced in, and would strongly tend to produce peace and quiet.
I therefore venture to suggest that the opinion of the Attorney Gen eral be taken on the matter, and that I should be instructed to act upon the conclusions to which he may arrive. I forward with these papers a copy of the code of Georgia, and also a copy of the order by which General Meacle announced the names of the persons elected to the legis lature. The sections of the code which bear upon the matter are Nos. 120 and 121.*
1 send this day a special messenger, (Captain J. G. Telfford, aide-de camp.) I do this for the reason that the mails between this place and Washington are so irregular that no dependence can be placed upon them, and this matter does not admit of delay.
J have the honor to be, very respectfully, vonr obedient servant, ALFRED H. TERRY,
Brevet Major General Commanding. General AV. T. SHEBMAN,
'Waahington, 1). C.

[Uenenil Orders No. 90.]
HEADQUARTKRS THIKD MIUTAUY DISTRICT, OKPAUTMENT OP GEORGIA, FLOKIDA, AND ALABAMA,
Atlanta, Georgia, June 25,1868. From the returns made by the boards of registration of the election held in the .State of Georgia for a governor, members of the general assembly, and other officers., under the provisions of General Orders No. 30, issued from these headquarters, which election commenced ou the 20th day of April, 1868, and continued four days, it appears: 1. That at the said election Hon. E. B. Bullock received a majority of all the votes cast for governor of the State of Georgia. 2. That at said election the following named persons were elected senators in the general assembly of said State from tbe respective senatorial districts in which they were chosen, viz:
SEXATOK8 Kl.ECT.
First district, A. A. Bradley; second district, T. G. Campbell, r.; third district, E. i). (,rabain; fourth district, .T. M. Coleman; fifth district, A. Corbit; sixth district, Joshua Griffin; seventh district, M. C. Smith; eighth district, B. F. Brutton; ninth district, R. T. Nesbit; tenth district, F. O.Welch; eleventh district, C. B. Wooten; twelfth district, C. R. Moore; thirteenth district, William B. Jones; fourteenth dis trict, John J. Collier; fifteenth district, W. T. McArthur: sixteenth district, H. Hicks; seventeenth district, McWhorter Hnngerford ; eighteenth district, Benjamin Conley; nineteenth district, Joseph Adkins; twentieth district, George Wallace; twenty-first district, William Griffin; twenty-second district, T. J. Sneer; twenty-third district,
* Code of Georgia, (a volume of 1100 pages, entitled " The Code of the State of Georgia," prepared by H. H. Clark, T. R. R. Cobb, aud D. Irwin, printed at Atlanta. Goorgia. I.^ST.) . .

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15

W. J. Andcrson; twenty-fourth district, B. B. Hinton; twenty-fifth district, E. J. Higbee; twenty-sixth district, A. IX Nunnally; twenty-seventh district, John Harris; twenty-^eighlh district, W. F. Jordan ; twenty-ninth district, Josiah Shcrman; thirtieth district, J. H. McWhorter; thirty-first district, William F. Bowers; thirty-second dis trict, John C. Richardson; thirty-third district, A. M. Stringer; thirty-fourth district, Milton A. Candler; thirty-fifth district, W. T. Winn; thirty-sixth district, W. C. Smith; thirtv-seventh district, W. W. Merrell; thirtv-eighth district, Walker Brock; thirty-ninth district, A. W. Holcomb; fortieth district, C. J. Wellborn; forty-first district, John Dickey; forty-second district, John T. Bums; fortv-tliird district. Joel C. Fain ; forty-fourth district, B. R. McCutchin.
3. TJuit at said election the fidlowing.named persons were elected representatives in the general assembly of saiil State from the counties to their names respectively attarhed. viz:

MKMBF.liS KI.KCT.
AppHng, Ishaiu Raddish; Baker, A. M. George; Baldwin, Peter OXcal; Banks, William R, Bell; Benien, Thomas Paulk; Bibb, H. M. Turner, J. Fit/.patriek, and J. E. J. Franks; Brooks, W. A. Lane; Bryant, W. L- Houston; Bulloek, W. M. Hall; Bnrke, M. Claiborn, John Warren, and John A. Madden; BnttvT. 51. Harkuess; Chatham, C. K. O-^ood, James Porter, and James M. Sims: Camden, Virgil Hillyer; Campbell, W. S. ZeJlers; Carroll, John Long; Cass, or Bartow, F. M. Ford aud M. .1. Crawford ; Catoosa, A. S. Fowler; Chattahoocbee, W. A. McDongald; Charltou, P. M. Smith; Chattooga, C. C. Cleghorn; Calhonn, Franklin L. Pepper; Cherokee. N. J. Prkins; Clarke, Madison Davis and A. Richardson; Clay, R. A. Turnipseed; Clay ton, A. E. Cloud; Clinch, G. Lastiuger; Columbia, J. M. Rice and Romnlus Moore; Coftee, J. R. Smith ; Con-eta, F. M. Scroggins and P. Sewell; Cobb, W. D. Anderson and N. N. Gober ; Colquit, W. W. Watkins; Crawfonl, W. G. Vinson ; Dade, James C.Xisbet; Dawson, Joseph L. Pe.rkins; Decatnr, B. F. Powell aud John Higdon; DeKalb, W. H. Clarke; Doolv, Hiram Williams; Dongherty, Phillip Joiner and A. R. Read; Early. H. C. Fryer; Eehols, R. W. Phillips; Effingham, Morgan Rawls; Elbert, IT. O. Tafe : Emanuel, J. A. Brinson; Fanuin, Alexander Hearn; Fayette, P. H. Brassrll; Floyd, Dnnlap Scott and M. Ballanger; Forsyth, H. C. Kellogg; Franklin, James A. Harriuou; Fulton, E. M. Taliaferro, J. E. Gnllatt, and V. P. Sissou : Gihuer, James M. Ellis: Glascock, J. H. Nimn; Glynn, R. B. Hall; Gordon, R. A. Donaldson; Greene, R. L. McWhorter and A. Colby; Gwiunett, Louis Nash and R. M. Parkes; Habersham, W. S. Erwin; Hall, David Whelchell; Hancock, W. H. Harrison and E. Banies; Haralson, W. N. Williams; Hart, James Alien; Harris, W. J. Hudson and Samuel Williams; Heard, M. Shaekleford; Henry, J. A. Maxwell; Houston, J. W.Mathews, C. C. Dnucau, and H. R. Felder; Jackson, A. T. Bennett; Jasper, T. M. Alien; Jefferson, Benjamin Ayre aud Alexander Stone; Johnson, J. W. Meadows; Jones, W. T. McCullough; Lanrens, George Liuder; Lee, Samuel Lindsay and G. F. Page; Liberty, W. A. Golden; Lincoln, Platt Madison; Lowudes, J. W. ONeal; Lnrnpkiii, W. P^ Price; Macou, Robert Luuipkiu and F. H. Fyall; Madison, J. B. Moon; Marion, William M. Bntt; Mclntosh, T.- G. Campbell, jr.; Merriwether, P. W. Chambers and W. H. F. Hall; Monroe, W. A. Ballard and G. H. Clowere; Miller, F. M. D. Hopkius; Milton, G. M. Hook; Miteliel), J. M. Burtz; Montgomery, John J. McArthnr; Morgan, A. J. Williams and Monday Floyn; Murray, J. N. Harris; Muscogee, James G. Manll aud Abraham Smith; Newton A. H. Lee and John F. Harden; Ogletborpe, James W. Adkins and James Cnnningham; Panlding, S. F. Strickland; Piekens, S. A. Darnell; Pierce, R. W. Carpenter; Pike, R. A. Scale; Polk, L. H. Walthall; Pnlaski, J. M. Bnchau and S. F. Saulter; Pntnam, S. C. Puitle.n ; Qnitman, L. C. A. Warren; Rabun, McKiuzey Fiucannon; Randolph. W. M. Tunilin and David Goft"; Richmond, E. Tweedy, J. E. Bryant. and T. P. Baird; Schley, Thomas F. Rainey; Scriven, W. D. Hamilton; Spalding, J. T. Ellis; Stewart, C. C. Humberand J. K. Baranrn; Sumter, G. N. Harper aud John A. Cobb; Talbot, Mariou Bethuue and J. T. Costin; Taliaferro, W. F. Holden; Tatnall, Robert C. Snirency; Taylor, Frank Wilehar; Terrell, F. M. Harper; Thomas, J. R, Evans and W. C. Carson; Towns, George. W. .Johnson; Tronp, J. H. Caldwell and J. T. McCormick; Twiggs, Hapwood Hughes; Union, John H. Penland; Upuon, John C. Drake; Walker, W. B. Gray; XValton, John B. Sorrells; Warren, John Neal and S. Gardner; Ware, Joseph D. Smith; Washington, R. W. Flouruoy and William G. Brown; Wayne, G. W. Rumph; Webster, G. S. Rnsser; White, C. H. Kytle; Whitefield, J. E. Shumate; Wilcox, Darling Johnson; Wilkes, Kichard Bradford and E. Belcher; Wilkinson. C. H. Hooks: Worth, James M. Rouse.
By order of Major General Meade: R. C. DRUM,
Aesistant A Ijntaitf Ocnn-al.

16

RECONSTRUCTION OF GEORGIA.

In the enforcement of the act of December 22, 1SGU, two questions have presented themselves:
1st. Who is the final judge of eligibility of a member of the legisla ture; the member himself, the house io which he claims to ba elected, or the general commanding?
2d. If any are found ineligible, is it proper that the commanding general direct the next highest person voted for to take his place, and participate in the reorganization, or if tliis is to he left to the houses after they are organized ?
On these questions the following observations are submitted: When at the cessation of armed resistance, by the rebels, in May, ISG5, the several States lately in rebellion were found, under the Consti tution of the United States, to be absolutely without legal civil govern ment, undoubtedly it devolved upon the United States, in the then status in fact of affairs,and under acticle 4, section 4, of the federal Con stitution, to set; to it that legal civil government should be re-estab lished. It would seem to follow as a necessary incident to this power that the United States should protect life and property until the organization was effected, provide a mode and method of organization, and super intend, by such means as should appear wise and proper, the process of organization. In pursuance of this power, Congress, on the lid of March, 1807, passed the original " reconstruction act," declaring that no legal civil government existed in certain States, (including the State of Georgia,) and conferring the whole government of the same upon the several com manders of the districts therein provided for, but authorizing them to make use, in their discretion, of any civil organization they might find in existence. (Sections 1-3.) This bill also provided that until the, people of said States should bo admitted to representation, any civil governments which may exist therein shall be deemed provisional only, and be subject to the para mount authority of the United States. (Section G.) It was also provided that this act should be inoperative whenever the people of said States, after the performance of certain conditions, should be admitted to representation in Congress. (Section 5.) The preamble to said act recites its objects to be to preserve order until legal State governments should be legally established. Very clearly under this act the whole effective power of preserving order and superintending the process of organization, is conferred upon the general commanding the several districts provided for. The supplemental act of March 23, 1*07, is still more emphatic upon this point. The commanding general is therein authorized to appoint registers, and generally clothed with the chief superintendence of the process of organization. The additional supplemental act of July 19,1S67, is more emphatic still,declaring in express language that the said "governments," if con tinued, were to be subject in all respects to the military commanders. The commanders are declared not to be bound in their construction of the law, by the opinion of any civil officers of the United States. It is also enacted that the several acts are to be construed liberally to the ends that the intents thereof may be fully and perfectly car ried out, which intents, by the preamble to the original act, are declared to be the establishment of loyal republican State governments. In pursuance of these acts, the military commanders have uniformly exercised, at their discretion, suuh powers of civil government and such

RECONSTRUCTION OP GEORGIA.

17

powers of superintendence over the process of organization as in their judgment was best calculated to effect the object sought by Congress, to wit, the organization of loyal State governments in accordance with the Constitution and laws of the United States.
To this end they have removed officers, suspended laws, given authori tative interpretation to laws, and generally acted as supreme arbiters of every question which presented itself, not clearly provided for by act of Congress.
General Grant, in his report as Secretary of War, November, 1867, declares that the powers of these commanders are civil as well as mili tary, and that in their civil capacity they are independent of even the General of the Army and Secretary of War, and commends them in the following terms:
" It is but fair to the district commanders, however, to state that while they have been thus independent in their civil duties, there has not been one of them who would not yield to a positively expressed wish in regard to any matter of civil administration from either of the officers placed over them by the Constitution or acts of Congress, so long as that wish was in the direction of a proper execution of the law, for the execution of which thev are alone responsible." (MePhersons Manual, 1868, p. 314.)
It would appear, therefore, to be incontestable, that by the express language of the reconstruction acts, by the practice of the generals commanding the various districts, and by the opinions of the General of the Army and the Secretary of War, that the full superintendence of the process of reconstruction, and the authoritative interpretation of the law in all doubtful questions, is in the military commanders of the several " military districts" provided for by the act March 2,1867, and unless there be something in the peculiar status of Georgia, or in the acts of June 25, 1868, and December 22, 1869, modifying this power, under the circumstances the right of the commanding general to " in vestigate" the eligibility of the claimants to seats is unquestionable.
The act of June 25,1S68, recognizing the " constitution" as repub lican and fixing the terms in which the State should be admitted to rep resentation, clearly contemplates (section 2) that the legislatures shall be convened by the governor elect, and not by the general command ing, and this, too, is clearly the intent of the act of December 22,1869, and in this particular the powers of the general commanding are by both of these acts transferred to the governor.
But in neither of these acts is there any special provision as to the mode and manner in which the legislature shall organize.
In July, 1868, the several houses were separately convened, the mem bers qualified, and the organization effected under the direction of the provisional governor, with the concurrence and advice of General Meade, no reference at all being had in the organization to the eligibil ity of the members under the act of June 25,1S6S.
When the organization was nominally complete, the two houses noti fied the fact to the provisional governor, who, on the same day notified the same to General Meade, with the suggestion that various persons had been permitted to participate who were disqualified.
To this General Meade replied, in substance, that in his judgment neither house was organized until all persons disqualified under the reconstruction acts were excluded "that ordinarily each house would be the proper judge of the qualifications of its members, but inasmuch as it was his duty, so long as the government was provisional, to see that the laws were obeyed, he would not recognize the legislature or any
S. Ex. Doc. 41 2

18

RECONSTRUCTION OF GEORGIA.

of its acts until satisfactory evidence was produced to him that all per sons disqualified by the reconstruction laws were deprived of seats." (General Meades Eeport, page 65.)
Upon this the several houses proceeded to an investigation, and re ported "that all the members of both houses were eligible."
This report being communicated to General Meade, he announced that "he had no further opposition to make to their proceeding to the busi ness for which they were called together." (General Meades report, pages 64 to 71.)
It will be noticed that General Meade did not at all think he had no power to interfere. His power was supreme, although he might, as he saw fit, use the civil organization or fail to use it, at his pleasure, and after he had used it he might overrule its action accordingly, as he was or was not, on the whole, satisfied that it was right.
In reference to this very matter he had, on July 6th, telegraphed to General Grant (Eeport, page 35) and inquired, " If, in case the legislature tailed to purge itself, he had power to control the matter."
July 8, 1868, General Grant answers: "5To person unable to hold office under the fourteenth amendment should be allowed to qualify. District commanders are the judges of the qualifications of civil officers until all the requirements of the different acts of Congress to complete reconstruction of the seceded States are fully complied with."
General Eawlins, chief of staff, also telegraphed a reply concluding thus:
"The reconstruction acts are to be construed liberally, to the end that all the intents thereof, to wit, the re-establishment of civil government in the States lately in rebellion, may be fully and perfectly carried out. and it would seem that persons ineligible to hold office under their pro visions, should not be permitted to defeat them."
General Meade, in his dispatch of July 18,1868, to General Grant, informing him what he had determined to do, to not regard the action of the two houses as final, says:
"My judgment, therefore, is to acquiesce in the decision of the sen ate (and house) and leave to Congress such action as may hereafter be deemed proper, in case the senate (and house) has failed to comply with the law;" and concludes his dispatch thus:
" What I desire to know is, whether in your judgment my duty re quires me to overrule the deliberate act of the senate, and judge for myself on the qualifications of the members.
" 1 have no doubt of my power in the premises, but do not feel that I am called on to do more than I have doue." (General Meades Eeport, page 38.)
It is very apparent, therefore, that while General Meade was disposed under the circumstances to acquiesce in the decision of the two houses, he had no doubt of his power to interfere; that in fact he did not feel called on to overrule the action of the body to which he had referred it, but submitted the whole to the judgment of Congress.
The "judgment of Congress" is announced bv the act of December 22,1869.
This act has for its whole purpose the intent to repair the mistake made by Major General Meade, in permitting the very body to be purged to be made up iu the first instance of those who were to be excluded by the purging process.
It is generally contended that the Congress of the United States, as means of curing the mistake of Major General Meade, in taking as con clusive of eligibility the deliberate legislative judgment of the several

RECONSTRUCTION OF GEORGIA.

19

houses as political bodies, has been guilty of the absurdity of making the judgment of the very men who are charged to be ineligible, the sole criterion of eligibility.
Dissatisfied with the judgment of the body itself, and holding that not conclusive, Congress has made each member the judge of his own eligi bility. What the whole body deliberately failed to do is left to be done, and that without appeal, by the very individual members whom it is charged were improperly admitted. So preposterous a conclusion ought to have very clear and positive language in the law to support it, and ought only to be arrived at when the words of the law inevitably compel such a construction.
The act of December 22 has not in it a single word limiting the power of the general commanding, save that it, as did also the act of June 25, 1868, contemplates that the legislature shall be convened by the order of the governor.
It would be a gross misconception of this law to construe it by itself. It must be read and understood in connection with the other acts upon the same subject.
Its title announces that it is an act to " promote the reconstruction of Georgia,"
It assumes that the reconstruction of the State is still incomplete; that the government existing in the State is still provisional, and "sub ject," in the words of the act of July 19,1867, "in all respects, to the military commander of the district" and "to the paramount authority of Congress," and is to be construed as additional and supplemental to the reconstruction acts, and not as an independent act. It leaves, there fore, the authority of the military commander precisely where the other acts placed it, except as that authority is modtied by the act itself.
The oath prescribed is merely cumulative, an additional safeguard in aid of the powers of the general commanding.
It is a fundamental idea of the whole reconstruction policy, that no person shall hold office in the late rebel States who has held office and then afterward engaged in rebellion, unless he be relieved from disabili ties by a two-thirds vote of Congress.
And it is trifling with that whole policy to permit, if there be any possible means to prevent it, the very first legislature, before recon struction is complete, and while the military jurisdiction is still para mount, to be organized in defiance of that policy, with the vain hope that after the organization is complete the body, which so signally failed before, will itself purge itself of its ineligible members.
So long as the State is denied representation by Congress the power of the general commanding is complete. He may, as did General ZiJeade, in his discretion, refer the question to the legislature, but the success of that experiment, and the subsequent action of Congress has not been such as to justify the repetition of the farce, much less to infer that such was the intent of Congress.
The act, so far from making the oath of the member conclusive, or contemplating that the question shall be left to the bodies after they are organized, when lairly considered, has directly the opposite meaning.
It provides (section 1) that the legislature shall proceed to organize " under the laws of the United States."
It provides further (section 4) that the persons so declared clectol " and entitled to seats, and who shall take the oaths provided, shall," &c.
It provides (section 3) that it shall be illegal to prevent any person elected as aforesaid, who has taken one of the oaths prescribed, and otherwise complied with this act, from participating, &c.

20

RECONSTRUCTION OP GEORGIA.

It provides (section 6) that it shall be illegal and revolutionary to ex clude any one elected as aforesaid, aud otherwise qualified, from partici pation because of his race or color.
By section 4 it is not enough, by the very terms of the act, that ho shall have been elected and taken the oaths, he must be entitled to a seat.
It is not enough, by section 5, that he shall have taken the oath, he must have otherwise complied with the provisions of the law.
It is not enough, by section 5, that he is elected, to make it illegal to exclude him from bis race or color. He must be otherwise qualified.
If the taking of the oath is to be conclusive, why should the Congress also say "and be entitled to a seat," "have otherwise complied," and "he be otherwise qualified?"
It is a fair mode of consideration to assume that each word aud phrase of an act has a meaning, and there can be no conceivable reason why the act should say "elected," "take the oaths," "be entitled to a seat," "and be otherwise qualified," unless it was meant that there might be cases where one has been elected and taken the oath and yet not be entitled to a seat; especially is this construction proper if it be consid ered that the whole necessity for the act grows out of the fact that in July, 1868, not only many individual members were sworn in who were ineligible, but a majority of the two houses determined, after (as it was said) full investigation, that there were no ineligible members in either house.
That the ofith of the members is conclusive is simply absurd. It is the ordinary course of legislative bodies to inquire into the eligibility of members after they have taken the oath. The Georgia constitution requires that each member shall swear that he has not obtained his election illegally. Is that oath conclusive ? May not the house invest igate the facts, and if they be found otherwise, may it not declare him illegally elected? The only question there can be, under the law, is. whether the power to determine the question is not in the body itself?
Ordinarily, as General Meade and General Rawlins say, and as the practice is, this is a power in the body itself, and, without question, the commanding general might, as did General Meade, in his discretion, refer it to them. But so long as the reconstruction laws are not fully complied with, it is the right of the general commanding to see to it that the laws are complied with, and under the experience of July, 186S, and the action of Congress, it would seem that in such a question as this, so vital to the organization of the legislature, so distasteful as this rule cf ineligibility has proven to the reactionary party, that its final decision ought to be neither with the member himself nor with the body whic-h has in a former trial proven so unwilling to enforce the rule upon its members.
To permit one who is ineligible to take part in the organization of the body which is to decide his case, may not be a very great evil, but when the charge of ineligibility includes a member, it is obvious that if they be permitted to become members in fact, it will be almost impossi ble to unseat them.
Ordinarily there is no other method, because there is no superior power; but in the status of affairs as they exist now in Georgia, there is such a power, and an occasion plainly calling for its interference.
What is to be gained in the promotion of reconstruction by repeating the proceedings of July, 18681 With the act of Congress staring them in the face, that no person was eligible to office who had held office be fore the rebellion, and thereafter engaged in rebellion, these very men

RECONSTRUCTION OP GEORGIA.

21

deliberately took the oath of office, and a majority of each house de clared them all eligible. Congress Las reversed the proceedings, de clared the houses not properly organized, provided for a reorganiza tion, and it is contended that of necessity the same process of individual judgment and organized indorsement, shall be repeated, and this too; with a paramount authority looking on and seeing with its own eyes, a repetition of the sham of July, 1868, actually progressing.
So much upon the first branch of the question, the power of the gen eral commanding to " investigate the question of ineligibility, and to prevent the failure of the whole congressional scheme by the reckless ness of those who are ready to move heaven and earth to work its dis comfiture.
But there is a second question. There are from fifteen to eighteen of those declared elected by General Meade who have neglected, refused, and are doubtless unable to take the oath, and who are by express lan guage of the law declared to be ineligible. There are from ten to fifteen more who may be found ineligible by the commission now sitting. The question arises, Shall the house proceed to organize with only such of its legal members as are here and have taken the oath, or shall those who received the next highest vote at the election be notified to appear, and if they are eligible, be permitted to take the oath and participate in the organization?
There can be no question that it is the law of Georgia that the votes cast at an election for one who is ineligible to the position, are not to be counted, and it is the duty of the governor who issues the commission, if he be satisfied that the highest man is ineligible, to give the commis sion to the next highest who is eligible.
He is declared by the code to be the person legally elected and he is entitled to the certificate of election.
The proclamation of General Meade only purports to be based upon the returns, and such \yas in truth the basis of the order. It is not at all based on the eligibility of the persons named, but upon the simple fact that the returns show the persons named to have received the high est vote.
Had the question of eligibility been presented to General Meade be fore that proclamation was made; had the board upon whose report it is founded, taken the eligibility of the persons named into consider ation, perhaps the list would have been very different, since by the law of Georgia they would have been compelled to declare elected in every case where the highest was ineligible the person who was next highest, if he was eligible. Such was not, however, the course then pursued, though it was a course perfectly consonant with the law of the State.
That the general commanding may do now what might have been done then is unquestionable, unless there be something in the act of December 22,1869, forbidding this and prescribing a different course. What is the fact!
The bill directs the governor to convene by proclamation those declared elected by General Meades order of June 25,1868. And it further pro vides that when the members " so elected," not so " declared elected," shall convene, each " member" and each and every person " claiming to be elected" shall take the oath, &c., and every person " claiming to be so elected who shall refuse, decline, neglect, or be unable to take the oath, shall not be admitted to a seat or to participate in the proceedings, but shall be " deemed ineligible to such seats."
Section 3 provides that if any person "claiming" to be elected as

22

RECONSTRUCTION OP GEORGIA.

aforesaid that is, to a seat in the senate or house shall take the oath falsely, &c.
The whole language of the bill is evidently used in reference to the code of Georgia, which declares that the second highest is the person elected, if the "highest" is ineligible, and clearly contemplates that no person ineligible, though he may claim to be "elected," is not iu fact " so elected." It will be noticed that the words so often used in the act are not "so declared elected,^ but "so elected," or " claiming to be so elected." The word " so does not refer to the proclamation, but " so elected," and claiming to be so elected, refers to the senate or house of representatives respectively, and the word "so" is used to save the frequent repetition of those words.
The persons elected to the senate and house of representatives of Georgia are, by the law of Georgia, those who got the highest vote if they are eligible; and those who got the next highest vote in cases where the highest are ineligible.
These classes, and these only, are the persons who fill the description of section 3, to wit: "The persons elected as aforesaid that is, elected to the senate and house respectively who shall take the oath and shall proceed iu said senate and house, to which they have been elect ed, to reorganize the same."
Under the laws of Georgia, nobody who is ineligible is elected. If an ineligible person gets the highest vote, he is not elected; but the next highest is.
And the peculiar language of the act of December 22,1869, is a clear indication that it was drawn with special reference to the Georgia law, which the unseating of the negroes and the admission of the next high est as the persons elected, had brought prominently before the eyes of Congress.
That the general commanding has, by virtue of his assignment to the command to the "district" of Georgia, full powers iu the premises, is, as has been shown, unquestionable; and that the act of December 22, 1869, does not, in this respect, qualify those powers, is equally clear; and there would appear to be, therefore, no good reason why the law of Georgia should not, in the discretion of the general commanding, be ap plied to the case.
It will close upthe whole matter; it will put the new government in the hands of its friends; it will secure the fifteenth amendment; it will enable the friends of the new constitution to carry its provisions into effect iu good faith, and close up rapidly and healthfully the sore, which, since 1865, has been irritating the body politic.
To secure such ends a liberal interpretation of the reconstruction acts is specifically required, and would be in accordance with the whole policy of Congress, to wit, to set the new governments afloat, under the guid ance of the friends of reconstruction, and not under the control of those who have in every conceivable way tried to thwart and obstruct its suc cess. Many of its most important provisions are, in the eyes of these enemies to it, odious in the extreme, and it is saying but little to suggest that they will not give it a fair and liberal trial. If, unfortunately, these men succeed, their past course indicates that they will be no true friends to its fundamental ideas, and a wise public policy would seem to indi cate that while the hand of authority is still raised the door for revolu tion should be closed.
Section 121 of the code of Georgia, to which reference has been made as fixing the efiect of ineligibility, is in these words; " If, at any popu lar .election to fill any office the person elected is ineligible, under one of the foregoing rules, the person having the next highest number of votes

RECONSTRUCTION OF GEORGIA.

23

who is eligible, when a plurality elects, shall be declared elected and be qualified and commissioned to such office."
It will be noticed that this act applies to every popular election to fill any office, whenever a plurality elects.
At the date of the code, December 19,1860, the governor and judges of the superiorcourts were required to be elected by a majority vote; all other officers were simply to be elected. So too is the constitution of 1865. The constitution of 1868, which adopts the code as the system of law, provides that the person having the majority of the whole number of votes cast, shall be declared duly elected governor. The only other officers of the State elective by the people are the members of the gen eral assembly, county officers, and justices of the peace; these, the con stitution says, shall be elected by the qualified voters, &c. The fact that of the several elections provided fbr, to wit: Governor, members of the legislature, county officers, and justices of the peace, only one is re quired to have a majority of all the votes cast, is conclusive that it was the intent that at all elections except for governor, a plurality elects.
Such has always been the understanding of the law in this State, and such was the rule adopted by General Meade in issuing the proclama tion of June 25,1868, as will abundantly appear by an examination of the returns. The law of Georgia has always required a majority in the case of the election of the "governor," and, for awhile, ofjudges of the superior court, but never for any other officer. Such at least has always been the practice. It is based not only on the general rules ofthe com mon law, but on the rnle that, as the constitution required specially a " maj ority" in the cases of governor, it left other elections to be decided by a plurality vote. It is teared, therefore, that, under the law of Georgia, if the member of the legislature having the highest vote is ineligible, the person having the next highest, who is eligible, is to be declared elected and to be qualified and commissioned to such office.
Ordinarily, as I have said, the duty of investigating the eligibility of members of the legislature is with that body, and, without question, if a person nominally elected is found ineligible that body would declare the next highest elected and give him the seat.
Such was the action of the legislature in July, 186S, in the case of " Bradley," senator.
Bradley was found ineligible, by reason of having been convicted of " felony," and his seat was given to Lester, the next highest at the election.
This.was done before the colored members were expelled, and on this point the action of the senate in that case was universally acquiesced in.
Indeed, there never has been in the State any doubts of the applica tion of this law to the legislature, until the present crisis has given it birth.
If the commanding general has the power, as most unquestionably he has, to "investigate" the eligibility of a member and "decide" upon it, and exclude him, it would seem to follow (as by the ordinance he is required to issue certificates of election) that the right of the next high est immediately, to be declared elected by him, must be the inevitable consequence.
The power to investigate and decide involves the power to cause the decision to be carried into its full effect, the exclusion of the ineligble member is but a part of the effect, the full decision is not only that the ineligble person is not elected, but that the eligible one is.

A true copy:

E. P. HUGHES,

Capt. and Brevet Major V. 8. A., A. D. C. and A. A. A. G.

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RECONSTRUCTION OP GEORGIA.

ATLANTA, GEORGIA,
January 19, 1870. GENERAL: Inclosed I baud you the application of William Guilford, colored, to be awarded the seat of J. C. Drake, a disqualified mail, who received the highest Dumber of votes in Upson county. Had the election been held under civil State authority, and were the legislative organization subject to civil jurisdiction, I should most cer tainly issue the certificate to Guilford. This is a sample case, similar to a number of others, and if decided in the affirmative will insure justice to the colored race through a loyal
legislature. I respectfully invite your attention to the inclosed argument in favor
of such a course. I am, general, very respectfully, your obedient servant, RUFUS B. BULLOCK, Provisional Governor.
MAJOR GENERAL TERRY, Commanding District of Georgia-.

HEADQUARTERS MILITARY DISTRICT OF GEORGIA,

Atlanta, Georgia, January 19,1870.

A true copy:

__

E. P. HUGHES,

Capt. and Brevet Major, U. 8. A., A. D. (7., and A. A. A. G.

GEORGIA, Fulton County:

ATLANTA, January 17,1870.

The petition of William Guilford (colored) of the county of Upson and State aforesaid, respectfully showeth unto yonr excellency that, under and by virtue of General Orders STos. 39 and 40, issued by General Meade, dated, respectively, Atlanta, Georgia, March 14 and 15, 1868, an election was held in the county of Upson, beginning on the 20th day of April, 1868, and continuing four days, for governor, members of Con gress, members of the general assembly, and other officers of this State; that, at said election, J. C. Drake and your petitioner were candidates in said county of Upson, for a seat in the house of representatives of this State; that at the time when the said election was held, the said Drake was disqualified from holding office under the acts of Congressr (see act to admit the State of ISbrth Carolina, * * Georgia, * * June 25,1868,) and that your petitioner was qualified; that on the 25th day of June, Major General Meade issued General Orders ISTo. 90, headquarters-third military district, announcing " that from the returns made by the boards of registration of the election held as aforesaid * * it appears that * * J. C. Drake, of Upson County, * * was elected representative in the general assembly;" that the said Gen eral Meade failed and the general assembly refused to hear the applica tion of your petitioner, showing that the said Drake, being disqualified, your petitioner was, under the laws then and now of force, the legally elected representative, and should have been awarded the seat.
Your petitioner further showeth unto your excellency that, under the recent act of Congress dated December 22,1869, entitled " An act topromote the reconstruction of the State of Georgia," the second section

RECONSTRUCTION OP GEORGIA.

25

of the said act requires one of the two oaths to be taken by the persou claiming a seat in either branch of the general assembly. Said section concludes as follows: "And every person claiming to be so elected, who shall refuse or decline, or neglect or be unable to take one of said oaths or affirmations above provided, shall not be admitted to a seat in said senate or house of representatives, or to a participation in the proceed ings thereof, but shall be ineligible to such seat.
Your petitioner further showeth that said Drake has refused, declined, and neglected to take the oath required by act of Congress above mentioned, hence is ineligible to a seat in the house of representative;* in this State.
Tour petitioner further showeth that, under an ordinance of the late constitutional convention of this State, as appears on page 387 of the journal of said convention, as well as by the provisions of the present constitution of this State, and said recent act of Congress, he is qual ified to hold a seat in said house of representatives.
Tour petitioner further showeth that, under the fourteenth article of the Constitution of the United States, said Brake cannot hold a seat in the general assembly of this State, which has been demonstrated by his refusal to qualify as required by recent act of Congress, which enforces said fourteenth article.
Your petitioner further showeth that, under the law of this State, as appears in section 121, Irvius code, it is provided that, if at any popu lar election to fill any office, the person elected is constitutionally inel igible, the person having the next highest number of votes, who is eligible, whenever a plurality elects, shall be declared elected and be qualified and commissioned to such office.
Your petitioner further showeth that he did, at said election in said county of Upson, receive the next highest number of votes to said Drake; and under and by virtue of the law above cited, is entitled to a seat in the house of representatives Of this State, after having filed with the secretary of state the oath required by said recent act of Congress, and respectfully asks your excellency to allow him to qualify and take his seat as a member of the house of representatives of this State.
Respectfully, WILLIAM GUILFORD.
His excellency Rmpus P. BmxocK, Provisional Governor of the State of Georgia,

A true copy: R. P. HUGHES,
Captain and Brevet Major U. S. Army, A. D. C. and A. A. A. O.

ATLANTA, GEORGIA, January 19,1870. GENERAL : As chairman of the committee of members of the legisla ture in favor of the immediate organization of the house of representa tives, I have the honor to submit for your consideration the following points and arguments which present themselves in connection with the organization of said legislature. Under the act of Congress, December 22,1869, to promote the reconstruction of the State of Georgia, and the proclamation of the governor of the State in pursuance of said act, the persons elected to the general assembly of said State, as appears by the proclamation of George G. Meade, the general commanding the military

26

RECONSTRUCTION OP GEORGIA.

district, including the State of Georgia, dated June 25, 1868, have as sembled at Atlanta preparatory to the organization of said legislature.
It lias become necessary to ascertain clearly who may or may not lawfully participate as members elect according to said proclamation of General Meade in the organization of the two houses. The act itself limits and restricts the members to such as appear to have been elected according to said proclamation. It makes no provision for the admis sion of any other class of persons. Among other grave errors commit ted by the legislature composed of the persons named in said proclama tion, was the expulsion of the colored members from both houses because of race, and the seating in their stead of other persons, on the ground of their being eligible to such vacancies under section 121 of the code of this State. This section of the code appears under the head of chapter 3, and is styled general regulations as to all officers and offices. It de clares "if at any popular election to fill any office, the person elected is ineligible under the foregoing rules, (referring to previous section in regard to what shall constitute iueligibility for office,) the person hav ing the next highest number of votes, who is eligible whenever a plu rality elects, shall be declared elected, and be qualified and commissioned to such office.
It will be observed by reference to the new constitution of this State, section 4, article iii, relating to the legislative department, that " each house shall be the judge of the election return and qualification of its members." In Georgia legislation a distinction has always been pre served between members of the legislature, as a class, and public offi cers. The legislature being governed by the few simple constitutional rnles defining its powers, whereas the officers of the law have been sub jected to continual changes and requirements, at the pleasure of the lawmaking power.
Members of the legislature receive no commissions to authorize them TO perform their duties, whereas without a commission and qualification no man can exercise a public office. It thus appearing absolutely essen tial to the creation of a public officer that he shall be commissioned.
Public necessity doubtless suggested to the legislature the importance of prescribing a rule to avoid vacancies in public offices without too fre<liient recurrence to popular elections. Until the illegal decision of the legislature in 1868, it had never been held in Georgia that in case of vacancy occurring by the ineligibility of the successful candidate, that it should be filled by the candidate receiving the next highest number of votes. The general custom being as in other States, to order a new election.
I would also suggest that neither by the code of Georgia, nor the con stitution of the State, is it provided that a member of the legislature may be elected by a plurality of votes, thereby again showing a distinc tion between members of the legislature and public officers.
To hold that members of the legislature are subject to the provisions of said section 121, is to render nugatory the important clause of the constitution making each house the sole judge of the election returns and qualifications of its members. It will scarcely be contended that any legislative body ever thus sought to destroy its own great preroga tive, or to fetter, by its enactment, its own successors. Had it at tempted to do so, it would have been without constitutional warrant, and would have had no force or effect on a subsequent legislature.
It seems conclusive that forasmuch as that neither the constitution, *ior the code describes members of the legislature as public officers, nor

RECONSTRUCTION OP GEORGIA.

27

declares them elective by a plurality of votes, that they cannot be sub ject to the provisions of the said section 121.
I am, very respectfully, J. E. BRYAXT,
Chairman Committee, and Republican Member of General Assembly.
Major General A. H. TERRY,
Commanding Military District of Georgia.
A true copy: R. P. HUGHES,
Captain and Brevet Major U. 8. A., A. D. C., and A. A. A. G.

[Telegram received in cipher.]
ATLANTA, GEORGIA, January 22, 1870. General W. T. SHERMAN :
This point, slightly differing from a point formerly made, is now pre sented : A man was elected to office before the passage of ordinan.es of secession, but did not qualify till afterward, and then gave aid. Is he disqualified ? It is claimed that he held office under a State of the Union.
ALFRED H. TERRY, Breret Major General.

[Telegram.]

ADJUTANT GENERALS OFFICE,

Washington, January 22, 1870.

General A. H. TERRY, Commanding, <fec., Atlanta, Georgia:

Your dispatch of this date received. You will receive a dispatch giv ing opinion on subjects presented, and will see by it you are expected to use your own discretion on such points.

Bv command of General Sherman:

E. D. TOW^SEXD,

Adjutant General.

[Telegram.]
HEADQUARTERS ARJIT OF THE UNITED STATES,
Washington, January 22, 1870. General A. H. TERRY, Commanding, fic., Atlanta, Georgia:
Captain Tolford arrived last night, and I sent all your papers, through the President, to the Attorney General. I have just come from a con sultation with the President, Secretary of War, and Attorney General, who has examined all the papers, and has given his opinion in writing. a copy of which I send you by the wires, and another by mail. I advise you to let the legislature organize on Monday. Decide all questions as they arise, and do not depend on us here to determine absolutely the questions of doubt, for the Attorney General thinks yon are the only power, other than that reserved to itself by Congress.
W. U. SHERMAN, General.

28

RECONSTRUCTION OF GEORGIA.

[Telegram sent in cipher.]

HEADQUARTERS ARMY OF THE UNITED STATES.
Washington, January 22, 1870. General A. H. TERRY, Commanding, &c., Atlanta, Georgia:
Opinion of tluiAttorney General on the poiiitmaSe by General Terry in hi* official letter / January 19, 1870.
It seems to mo that tho military commander in Georgia is to exercise his own best judgment upon all the questions arising in violation to tho organization of the legislature f Georgia; and is not subject to the direction of any other officer. The questions are very difficult, and some of them hardly admit of a solution that can be pronounced certainly correct. I can only say that 1 have not been able to conclude that any other course is more probably tho right one than that -which General Terry indicates as tho tendency of his o\vn opinion.
I think that the admission of a person receiving tho next highest number of votes to a scat, on tho ground that tho person receiving the highest number is ineligible, should only apply to cases where the latter were absolutely and clearly ineligible at the time of the election, so that tho voter is presumed to have mtondod to throw away or trifle with his vote as if, for example, he had voted for a woman when only men were competent to hold the office but has no application to the case whore the person receiving the highest number of votes fails to qualify after the election, as by refusing or neglecting to take a required official oath, or where his disabilities might be removed by Congress. The voter may vote for a man who may be qualified, without subjecting himself to the consequence of having his vote disregarded. But on this point, as on others, General Terry is required to exercise his own judgment.
E. .R. HOAR, Attorney General.
W. T. SHERMAJT, General.

[Telegram received in cipher.]
ATLAXTA, GEORGIA, January 3, 1870. General W. T. SitERiiAN:
f am very sorry that I shall not be able to comply with your advice to organize to-morrow for two reasons.
A number of members not expecting so early an organization Lave gone home, and will not return till Tuesday. Again, board of inquiry have just made report. It is very voluminous, and I shall not be able even to read it to-day and to-night. I send this only for your informa tion.
ALFRED H. TERRY, Brevet Major General.

[Telegram received in cipher.]
ATLAMTA, GEORGIA, January 26,1870. General E. D. TOWNSEND:
House organized this morning by electing McWhorter, republican candidate, as speaker. On report of board three persons were excluded as ineligible; eleven of those inquired into were pronounced eligible; sixteen who refused to take oath were declared to have become ineligi ble by their refusal; and one whose case was sent to the board having tailed to appear, and being absent from the city was forbidden to take part in organization. After careful examination of act of December 22, I decided that the fourth section would not permit me to seat the next highest candidates in place of ineligible persons.
ALFRED H. TERRY, Brevet Major General.

RECONSTRUCTION OF GEORGIA.

29

HEADQUARTERS MILITARY DISTRICT OF GEORGIA,
Atlanta, Georgia, January 30,1870. GENERAL: I respectfully forward, for the information of the General of the Army, a copy of a decision made by me upon one of the points of law which have arisen during the organization of the legislature of this State. I do so in order that the general may understand the grounds upon which I have actetl in regard to the subject-matter of the. decision. 1 have the honor to be, verv respectfully, your obedient servant,
ALFRED H. TERRY, Brevet Major General, Commanding.
ADJUTANT GENERAL OF THE ARMY, Washington, J>. C.

HEADQUARTERS MILITARY DISTRICT OF GEORGIA,

Atlanta, Georgia, January 25,1870.

By the record of the proceedings of the board convened by General

Orders 2fo. 3, headquarters military district of Georgia, it appears that

several members elect of the legislature were elected to offices created

by the laws of Georgia, prior to the time when the ordinance of seces

sion was passed, but did not take the official oath nor enter upon their

official duties until after the passage of that ordinance, nor until after

sundry acts of hostility against the United States had been committed

under color of State authority. It is claimed on the one hand that such

persons are not disqualified. On the other hand it is contended that the

commencement of the rebellion must be ascertained by the Presidents

proclamation of April 15,1861, and that all persons who, prior to that

time, held an executive or judicial office, &c., under the State, are now

disqualified, if thereafter they gave aid and comfort to the enemies of

the United States, &c.

On this point the tollowing decision is made: In the oath of office pre

scribed by the act of Congress approved December 22,1869, a member

elect of the legislature of Georgia seeking to participate in the organ

ization of that body is required to swear, among other things, that he

never held an office under any State and thereafter gave aid or com

fort to, nor held office under or gave support to any government of any

kind, organized or acting iu hostility to the United States.

The words "any government" in this connection manifestly include

State governments acting in hostility to the United States, as well as

the so-called confederate government. The fact that it does include

State governments affects and furnishes a ruJe of interpretation for the

words " never held any office under any State," and confines the con

struction to offices held under a state when its government was not in

hostility to the government of the United States.

When did the State government of Georgia become a government

organized or acting in hostility to the United States, within the meaning

of the act referred to I

On the day of

the arsenal at Augusta, within the limits

of Georgia, a military establishment erected by, belonging to and occu

pied by the United States, was seized by an armed force acting under

the executive of the State. On the 19th of January a convention of the

people of the State called and organized under the provisions of an act

30

t

of the legislature thereof, passed an ordinance of secession and declared the State of Georgia an independent sovereignty.
On the 25th of January an ordinance providing for the public defense and for the raising of troops was passed troops to be used against the United States, should it attempt to enforce its rightful authority. On the gam* day the convention assumed jurisdiction over all forts and arsenals Vithin the State.
Prior to the passage of the ordinance of secession, Fort Pulaski, a sea-coast fortification at the mouth of the Savannah River, belonging to and occupied by the United States, was seized by an armed force acting under authority of the executive of the State, an act which afterward, on said 19th of January, 1861, was approved and ratified by the conven tion. This convention assumed to be and was, de facto, the supreme government, for the time being, of the State of Georgia: its decrees were respected and obeyed, not only by the people but by the executive, individual and legislative departments of the government. By the acts which have been recited, it placed itself, the people and the State government in an attitude of hostility to the United States.
If the seizure by au armed force of the strong places and military establishments of a nation, be not acts of hostility against that nation, it is difficult to see what would constitute such acts, and if such acts be done by any governmental organization, certainly that organization acts in hostility to the nation to which those places belong.
It is true that these acts were utterly illegal; they were indirect viola tion of the supreme law, but so were all the hostile acts of all govern mental organizations in the rebel States down to the end of the war; but they had this effect, they destroyed the State governments in a legal point of view, and in the view adopted by the reconstruction acts which declared that at the time of their passage no legal governments existed in the rebel States, and they left the governments thereof, de facto gov ernments, acting in hostility to the United States.
The subsequent acts of those governments, when the nation attempted to enforce its rightful authority, were but a combination of a series of hostile acts which commenced when the first breach of law was com mitted.
I am, therefore, of the opinion that from the time when the ordinance of secession and the ordinance providing for the raising of troops and for the seizure of the forts and arsenals were adopted, and overt acts of hostility were committed, whatever government there was in Georgia was a government acting in hostility to the United States, and that con sequently those persons who, after the commission of these acts, entered upon offices created by State laws, under the construction laid down above, did not hold office " under any State," in the sense in which those words are used in the oath prescribed by the act of December 22, 1860.
ALFRED H. TERRY, Brevet Major General.