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 'fl:b2i^a:j^fl:£^& 
 
 OF 
 
 GOY. BULLOCK 
 
 1^ ,il^ 
 
 TO THE 
 
 JUDICIARY COMMITTEE 
 
 OF THE SENATE, 
 
 RECONSTRUCTION OF GEORGIA. 
 
 MARCH 9, 1870. 
 
 ,l« 
 
 WASHINGTON : 
 
 CHRONICLE PRINT, 511 NINTH STREET. 
 1870. 
 
^ 
 i 
 
 The Honorable Chairman and members of the Judiciary 
 Committee of the Senate: 
 
 I have been placed in possession of a printed pamph- 
 let containing a revised edition of the papers read beore 
 3'oiir honorable committee, on the 9th of F(.brLiary lastj 
 by Messrs J. H. Caldwell and J. E. Br3-ant, tooelher 
 with an appendix containing a paper signed " N. L. 
 Angier, Treasurer of Georgia," and entitled "Governor 
 Bullock's financial operations," and also nine pages of 
 printed matter under the following title : 
 
 "Before the Judiciary Committee on Saturday, Feb- 
 ruar}^ 12, 1870, Judge Gibson, on behalf of Governor 
 Bullock, read an argument, to which Mr. Caldwell 
 replied in substance as follows :" 
 
 This reply of Mr. Caldwell, together with the paper 
 signed by Angier, I desire to notice before your honora- 
 ble committee shall have formed final conclusions and 
 agreed upon a report in what is commonly known as 
 the "Georgia Qjiestion." 
 
 As the exact subject matter before the committee, by 
 action of the Senate, does not appear in any of the 
 printed papers which I have been able to obtain posses- 
 sion of, I must admit that I have no very well defined 
 information as to what branch of the "Georgia Qiiestion'* 
 is formally before your honorable committee. 
 
4 
 
 My first information that the affairs of Georgia were 
 to be considered by your honorable committee was 
 derived from the note of your honorable Chairman y 
 dated the 6th day of February, informing me that Mr. 
 J. H. Caldwell, C. K. Osgood, and others had applied 
 to lay before your honorable committee certain facts in 
 regard to the organization of the Legislature and the 
 state of affairs in Georgia, and at the same time 
 extending to me an invitation to be present on the follow- 
 ing Wednesday, at ii o^clock. 
 
 At that time Mr. Caldwell and Mr. Bryant appeared as- 
 speakers, and to the "certain facts" (man} of which, by 
 the way, proved to be very uncertain) in regard to the 
 organization of the Legislature and the state of affairs in 
 Georgia, reply was made by me and presented to your 
 honorable committee in print, under dale of the loth of 
 February, and will be found on pages 27 to 57, inclu- 
 sive, of the pamphlet entitled " Georgia before the Sen- 
 ate Judiciary Committee, February 9th, 1870," and to 
 which the attention of your hoaorable committee is- 
 respectfully invited. 
 
 The statement, therefore, that "Judge Gibson ap- 
 peared in behalf of Governor Bullock," is not correct. 
 Judges Gibson, Harrell, and Parrott, together with Mr. 
 Conley, the President of the Senate, and Mr. Tweedy, 
 of the House, united in a communication to your honor- 
 able committee, printed in a pamphlet entitled "The 
 Admission of Georgia." 
 
 These gentlemen are all men of high character and 
 standing, and speak for themselves. While I agree 
 with what they say in their communication, they do not 
 represent me, more than they do every other Republic in 
 in Georgia. It is not probable, however, that either of 
 the gentlemen would have presented their views to your 
 
5 
 
 honorable committee had it not been for the unwar- 
 rantable and insolent assault made upon the character of 
 Judge Gibson by Mr. Bryant in his remarks on the 9th 
 instant. 
 
 In my former communications to your honorable com- 
 mittee, I endeavored to avoid, as far as possible, any 
 remarks of a party or partisan character. It was my 
 purpose to avoid speaking of either the Republican or 
 the Democratic parties in this matter. But I hope that your 
 honorable committee will overlook the impropriety of my 
 doing so at this time, for it seems to be called for by the 
 character of the communication to which I desire to 
 reply. 
 
 Mr. Caldwell assumes that under the former organiza- 
 tion there was a Republican majority in the Lower 
 House. He says : 
 
 "There were several strict party votes among them that 
 which elected the Speaker, from which it appeared that 
 there was a Republican majority of one in the House," 
 etc. "Since then, the Republican majority has been 
 increased by the deaths which have occurred." 
 
 The fact, however, is that a Republican was elected 
 Speaker by the following vote : Hon. R. L. McWhorter, 
 
 76 votes; W. P, Price, dem., 74 votes; W. F. Holden, 
 rtp., [voted for by Mr. McWhorter,] one vote, making 
 
 77 Republican votes to 74 Democratic votes, as will be 
 lound recorded in the Journal of that House on page 12, 
 under the old organization. This election took place on 
 Saturday, and on the following Monday, at nine and 
 a-half o'clock, a number of additional members having 
 arrived^and been sworn in, the House proceeded to the 
 election of a clerk, at which time, M. A. Hardin, Dem- 
 
6 
 
 ocrat, received 83 votes, Mr. S. C. Johnson, Republican, 
 received 78 votes. 
 
 Tl.us the Republican vote had been increased by two, 
 and the Democratic vote by thirteen. From that day 
 until the present organization, there never was a Repub- 
 lican majority in the House of Representatives. 
 
 It was this same Lejjislature which Mr. Caldwell 
 claims to have been republican, that, by a vote of 95 
 5''eas to 43 nays, adopted a report which declared that 
 John Long, of the County of Carroll, was eligible — a 
 man who, as was shown by the report, prior to the late 
 war held the offices of Justice of the Inferior Court and 
 Clerk of the Superior Court, and during the rebellion 
 held the office of County Treasurer. This is only a 
 sample case ; many others equally, ineligible were by that 
 House declared to be eligible. 
 
 Mr. Caldwell asserts that " had each member been 
 left to his own conscience in the late organization, to 
 qualify or not, just as the law allowed him to do, etc., 
 * * it is likely that a sufficient number would have 
 refused to qualify to make a republican majorit}' in the 
 two houses of 15 or 20." 
 
 With the exception of the three men who w^ere declared 
 to be ineligible by order of the General commanding the 
 District, each member luas "left to his own conscience," 
 etc., and had there been a rigid enforcement of a literal 
 construction of the disqualifications fixed by the Act of 
 December 22, or by the previous acts, which declared 
 that no person disqualified by the third section of the 
 Fourteenth Amendment shall hold office in either of the 
 States named in that act, Georgia being one of them, 
 there would have been at least thirteen other members 
 
excluded from the present organization who were per- 
 mitted to participate in it. 
 
 These thirteen persons took the oath prescribed in the 
 Act of December 22, notwithstanding the fact that they 
 were candidates for, and were elected to, offices under the 
 State Government at an election held on the first Tuesday 
 of January, 1861, and were commissioned in the offices 
 to which they were elected on or about the 25th day of 
 the same month, and continued from that time forward, 
 for various periods, to perform the duties of their offices 
 during the rebellion. These persons claim that by the 
 the fact that the ordinance of secession was adopted by 
 the Secession Convention of Georgia on the 19th day of 
 the same month, a date which occurred a few days after 
 their election and a tew days before they were commis- 
 sioned, they were shielded from the effect of the dis- 
 qualifying clauses of the Act of Dec. 22d. 
 
 The claim thus set up was regarded favorably by the 
 Commander of the District, in deference to the opinion 
 of the Honorable Attorney General of the United States, 
 and these thirteen members were permitted to retain 
 their seats in the Lecjislature. 
 
 It will be observed, therefore, that the greatest liber- 
 ality has been exercised in construing the act of Decem- 
 ber 22, so as not to affect unfavorably any person who 
 might, by any possibility, be deemed eligible. 
 
 Mr. Caldwell attempts to cast a reflection or doubt 
 upon the republicanism of the Speaker of the House of 
 Representatives by saying : 
 
 '*It was Speaker McWhorter's rulings which led to 
 the expulsion of the colored members," &c. 
 
8 
 The rulings to which Mr. Caldwell refers were — 
 
 "That no member, whose eligibility had been ques- 
 tioned by the committee, and which question was invol- 
 ved in the report, was entitled to vote therein." 
 
 And on page 40 of the Journal of the House of Rep- 
 resentatives of the old organization, we find that when 
 the question of the eligibility of certain white members 
 was under consideration, Mr. Bryant, of Richmond 
 County, raised the point of order that — 
 
 "No member whose eligibility had been questioned by 
 the committee, and which question was involved in the 
 report, was entitled to vote thereon." 
 
 The Speaker made this ruling, and decided that they 
 were not entitled to vote. Mr. Crawford, (Dem.) of 
 Barton County, appealed from the decision of the 
 Speaker, upon which appeal the yeas and nays were 
 required to be recorded, and resulted in yeas 84, nays 
 74. Among those who voted to sustain the Speaker in 
 this ruling we find the name of Mr. Caldwell. 
 
 When the report of the committee upon privileges and 
 elections, declaring colored men not eligible to hold 
 offices or seats in the Legislature, was made, we find 
 upon page 224 of the Journal of the House, old organi- 
 zation, that Mr. Scott, Democrat, of Floyd, made the 
 point of order — 
 
 "That upon the decision of the question now under 
 consideration, the persons whose seats are contested and 
 herein involved are not allowed to vote. Mr. Price, the 
 Speaker ^ro teni.^ being in the chair, decided the point 
 well taken. Mr. Bryant appealed from the decision of 
 the chair, upon which appeal the yeas and nays were 
 required, and. resulted in yeas 90, nays 19." 
 
9 
 
 Amonii those who voted in the affirmative — voted to 
 sustain the ruling, not of the Speaker proper, Mr. 
 McWhorter, but of the Speaker pro tempore. Mr. Price, a 
 Democrat then in the cliair, v^all be found the name of 
 Mr. Caldwell ! 1 ! Upon the final vole, by which the 
 colored men were excluded, Mr. Caldwell was absent \ 
 but a few days after the expulsion had been accom- 
 plished, he sought and obtained permission to have his 
 vote recorded in the negative. It is painful to thus de- 
 stroy Mr. Caldwell's consistency by referring to his 
 political record, but the trutli of history demands it. ' 
 
 The general sentiment of the community at that time 
 — the great Democratic convention at New York haying 
 by its resolutions declared the reconstruction acts to be 
 revolutionary, unconstitutional, and void, and intimated 
 that the governments established under those acts should 
 be dissipated — the threatening letters received by repub- 
 lican members from their respective homes, together with 
 the well-known impossibility of preventing, by their votes, 
 they being largel}' in the minority, the expulsion of the 
 colored members, will account for the small Republican 
 vote which is found in opposition to the revolutionary 
 action of the rebel majority in the organization. 
 
 From the foregoing I think your honorable committee 
 will agree with me that the statements of Mr. Caldwell 
 that the Lower House of the Legislature was a Repub- 
 lican bod}^ after the admission to it of all the men 
 declared by General Meade^s order to have been elected, 
 irrespective of their eligibility under the law, is effect- 
 ually disposed of, and that some light has been thrown 
 upon the consistency of the honorable gentleman's politi- 
 cal record. 
 
 Mr. Caldwell further proceeds to refer to a very im- 
 portant branch of this question by saying : 
 
10 
 
 "' Your attention has been directed to the leading idea 
 of the Governor's report, viz : that the purpose of the late 
 act of Congress was to set aside the first organi'^.ation of 
 the Legislature as illegal, and render all its acts void, 
 and especially the validity of election of United States 
 Senators and State officers. This construction of the 
 meaning ot the act grounds itself upon the idea that the 
 number of ineligible persons supposed to be in the body 
 vitiated the whole body and all its acts." 
 
 This allegation is not supported by anything presented 
 by Mr. Caldwell, nor is it supported by any fact whatever. 
 The purpose of the late act of Congress I conceive to 
 have been just exactly what is announced in its title, 
 namely, /c» ■promote the rccojistruction of the State of 
 Georgia. 
 
 After thus giving a false statement of my construction 
 of the act, he adds : 
 
 " This construction of the meaning of the act grounds' 
 itself upon the idea that the number of ineligible persons 
 supposed to be in the body vitiated the whole body and 
 all its acts ;" 
 
 And then proceeds to argue that, if any number less 
 than a majority were disqualified members, the body — a 
 qualified majority being a quorum — were competent to 
 act, &c. The argument of Mr. Caldwell on this point 
 is a ver}- weak imitation of the very able and compre- 
 hensive minority report made by your Honorable Chair- 
 man on the same subject, January 25th, 1869. 
 
 On the 25th of January, 1869, your honorable com- 
 mittee made a report to the Senate, [40th Congress, ^^d. 
 session, report of committee 192, on the credentials of 
 Joshua Hill, claiming to be a Senator elect from Georgia.} 
 
 In that report your honorable committee arrived at the 
 conclusion that the right of Mr. Hill, if regularly elected. 
 
u 
 
 to a seat in the Senate depended upon three important 
 considerations : 
 
 "First. Did the Legislature of Georgia, regularly organ- 
 ized in accordance with the Constitution of the United 
 States, the laws of Congress, and the Constitution of 
 Georgia, duly ratify the fourteenth amendment, and com- 
 ply with the various conditions imposed by the act of 
 June 25, 1868. 
 
 Second. Had the Legislature and people of Georo-ia, 
 subsequent to such compliance with said act of Congress, 
 committed such acts of usurpation and outrage as to 
 place the State in a condition unfit to be represented in 
 Congress? 
 
 Third. Whether on the w^hole case, taking the action 
 of Georgia, both before and since the pretended ratifica- 
 tion of the fourteenth amendment, a civil government 
 has been established in that State which Congress ought 
 to recognize." 
 
 After reciting the result of a thorough and careful in- 
 vestigation, your honorable committee concludes as fol- 
 lows : 
 
 "Wherefore your committee feel called upon to recom- 
 mend that Mr. Hill be not allowed to take a seat in the 
 Senate for the reason that Georgia ts not cntilkd to re;p- 
 resentatlon in Congress.'''' 
 
 In another part of the same report your honorable 
 committee disposes of the point now revived by Mr. 
 Caldwell by saying : 
 
 " For the purposes of this report, however, your com- 
 mittee did not deem it necessary to ascertain the number 
 of disqualified persons admitted, but the fact that atiy 
 were knowingly admitted was not only a violation of the 
 fourteenth amendment and a failure to comply with the 
 requirements of Congress, but manifests a disposition to 
 
12 
 
 disobey and defy the autliority of the United States. If 
 one can be admitted, why not all? And will it be con- 
 tended that if the entire body had been composed of men 
 who had usurped the functions of the Legislature against 
 the express provisions of the reconstruction acts, they 
 could have complied with the provisions of those acts so 
 as to create any obligation on the part of Congress to 
 receive their Senators and Representatives? Your com- 
 mittee are of opinion that the act of June 25, 1868, which 
 required that the constitutional amendment should be 
 duly ratified must be held to mean that it must be ratified 
 by a Legislature which has m good f;iith substantially 
 complied with all the requirements of law providing for 
 its organization." 
 
 Mr. Hill was, therefore, refused his seat, notwith- 
 standing the very able and comprehensive minority 
 report, made at the same time by 3'our honorable Chair- 
 man, to the effect that, even admitting a number of mem- 
 bers to have been disqualified, there was not a sufficient 
 number of that character to render invalid the proceed- 
 ings of the body, and that, if the Legislature was prop- 
 erly organized when it elected Mr. Hill, the fact that it 
 subsequently became disorganized ought not to effect 
 his election. The opinion of the majority of your hon- 
 orable committee, however, seems to have been sus- 
 tained by the action of both Houses of Congress, and by 
 the President in the passage and approval of the act of 
 December 22, to promote the reconstruction of the State 
 of Georgia. That act provides for the reassembling of 
 the persons declared to have been elected by General 
 Meade, to wit : the same persons who assembled and 
 made the organization which was inquired into by your 
 honorable committee in January, 1S69, and that the reor- 
 ganization shall be effected by the exclusion from its mem- 
 bership of all persons who held office under the United 
 
States or a State Government and thereat"ter participated 
 in the rebellion, or held office under a government 
 organized in rebellion, &c. It provided, also, that the 
 persons who wevti qualified under this act should proceed 
 to reorganize the I^egidaitire by the election of its oncers. 
 Does not this determine in ihe most positive manner that 
 in the opinion of Congress, and of the President, the old 
 organization was not only not competent to " duly ratify 
 the Fourteenth Amendment," but was not competent to 
 elect its own officers? and that neither Congress or the 
 President was bound to recognize its political acts as 
 entitling the State to representation? And it is a very 
 natural conclusion that if the old organization was not 
 considered by Congress to have duly ratified the Four- 
 teenth Amendment in such a wav as to bind Concrress to 
 recognize such ratification, and had not elected its own 
 officers, // could not have duly elected United States 
 Senators. 
 
 There is no half-way ground in this matter. Either 
 the government of Georgia is " Provisional" to-da^s or 
 the action of Congress in passing the act of December 22, 
 1869, and the President's assignment of General Terry 
 to duty as District Commander under the reconstruction 
 laws, cannot be defended. The act of December 22, 
 1869, by assuming that the Legislature had never been 
 legally organized ipso facto, placed the State under the 
 reconstruction laws. Such is the inevitable logic of the 
 requirement that there shall be a nezu organization, and 
 such 7nust be the interpretation to justify the President's 
 orders [o General Terrjs and to render lawful General 
 Terry's acts under those orders in interfering to preserve 
 life and property, arresting and confining assassins, 
 house-burners, negro-whippers, &c., and in removing 
 sheriffs who refused to do their duty, and in appointing 
 
14 
 
 others in their stead. It' the Legislature was ever hivv- 
 fulh' organized, thougli Congress might undertake to 
 purge it, or to reseat persons it had improperly ex- 
 pelled, it would not undertake to order its reorganiza- 
 tion. 
 
 There is but one way out of the inextricable con- 
 fusion and illegality into which this effort to sustain the 
 election of Senators by the old organization willlead, 
 and that is to give the act of Dec. 22d, 1869. the full 
 scope and meaning that was given to it by the President 
 in his order assigning General Terry to the command of 
 the " district" of Georgia — to wit: as a declaration that 
 Georgia was still subject to the reconstruction laws ; still 
 without any *' legal State government" competent to 
 take part in, or to be recognized by, the Government of 
 the United States as a State government dc jure. 
 
 Nor does the fact that the Executive Department and 
 the House of Representatives have each indirectly recog- 
 nized the government of Georgia as a '• Legal State 
 Government," and therefore entitled to be represented in 
 Congress, at all militate against this view. 
 
 The point on which the Congressional scheme of recon- 
 struction turns seems to be this. Ex-President Johnson 
 contended that when the Executive had recognized a State 
 Government as a legal State Government, there was 
 nothing to be done to complete the process of reconstruc- 
 tion but for each House, under its power " to judge of 
 the election and qualification of its members" to proceed 
 independently, and decide upon the admission of the 
 members of the several Houses. And in an elaborate 
 message he communicated these views to Congress. 
 
 That body forthwith by a joint resolution repudiated 
 this doctrine, and declared that none of the late Rebel 
 
15 
 
 States should be entitled to representation until Congresj 
 so declared by law. 
 
 If the House of Representatives of the 40th Congress, 
 under a mistaken belief, caused by false representations 
 that the Legislature had in good faith purged itself of 
 ineligible members, admitted to their seats the Georgia 
 Representatives without any declaration '' by law" having 
 been made that the State zuas entided to representation, 
 it was a simple act of one House, and not in accord, 
 with the joint resolution in which the fundamental doc- 
 trine of reconstruction was declared. Each House is 
 the judge of the election and qualification of its o.vn 
 members, but neither House of Congress can by itself 
 conclusively decide when one of the late rebel States is 
 entitled to be represented in Congress. 
 
 So soon as the facts of the Georgia matter were made 
 known and understood — so soon as it was made appar- 
 ent that the Legislature of Georgia had not been legally 
 organized — Congress, both Houses concurring, adopted 
 the act of 22d December, 1869, requiring the Legislature 
 to be reorganized. And this v/as done with great unan- 
 imity, notwithstanding the previous acdon of the House 
 of Representatives, which action by the House, as we 
 have said, was induced by the political fraud perpetra- 
 ted by men whose character and intentions were not sus- 
 pected, until their expulsion of the negroes had directed 
 inquiry into the manner of the organization of the 
 Legislature, to ascertain how it was possible lor such 
 action to occur, if men who were disqualified under the 
 reconstruction laws had been excluded. Then it was 
 that the facts were ascertained which led to the report of 
 your honorable committee in January, and the action of 
 Congress and tlie President, in December, 1869. 
 
16 
 
 It is therefore clear that under the act of December 22, 
 1869, and under the orders of the President bv virtue of 
 that act, and under the proceedings of General Terrv 
 under those orders, that Georgia was not entitled to 
 representation in Congress, and the Legislature of 1868 
 was no more competent to elect Senators, and organize a 
 State government de jure than was the Legislature of 
 1865-66. In those years, under the supervision of Presi- 
 dent Johnson, Mr. Jenkins was inaugurated as Gov- 
 ernor of the State. The Legislature was organized and 
 had two protracted sessions, and the military jurisdiction 
 of the United States was withdrawn. Two Senators 
 were elected ; the Thirteenth xA.mendment to the Consti- 
 tution was ratified, and from January, 1865, to March, 
 1867, for all local purposes, and for such national purposes 
 as the President could control, a State government was in 
 operation. Yet Congress, by the act of March 2, 1867, 
 declared that there was no legal State government in ex- 
 istence in the State, repudiated the election of Senators, 
 and under its power to guarantee each State a republican 
 government, adopted the Congressional scheme of recon- 
 struction. 
 
 In close analogy to ihis. Congress, the law-making 
 power, treating as inconclusive the action of General 
 Meade, as well as the action of the House of Represen- 
 tatives of the Fortieth Congress, passed the act of De- 
 cember 22, 1869, and this was supplemented by the neces- 
 sary action of the President. 
 
 The local legislation of the body in 1865-1866, has 
 always been recognized as valid until repealed, as well 
 as the ordinary legislation of the body assembled in 
 1868-1869. This point, however is treated in full in the 
 appendix to which reference is made. 
 
 Such is the inevitable logic of what has been done, 
 
17 
 
 and this inevitable logic must be answered, before a Leg- 
 islature which, by act of Congress, has been declared 
 incompetent to elect its own officers can be held compe- 
 tent to have ratified amendments to the Constitution and 
 elected Senators to the Congress of the United States. 
 
 It does not follow, however, that the ordinary local 
 legislation of that body is not valid as acts de facto until 
 repealed by a legally organized body. In order to 
 defeat, if possible, the full effect of the action of Con- 
 gress in upsetting rebel machinations, the suggestion has 
 been rigorously made that State bonds were to be repu- 
 diated, contracts violated, laws ignored, etc. But this is 
 mere bosh. The only State bonds of Georgia which 
 have been sold since the war, were issued under the 
 authority of the Legislature of 1865. Upon this point I 
 invite your attention to my communication to the Legis- 
 lature of February 16 last, herewith transmitted in the 
 Appendix "A." 
 
 Objection has heretofore been made by gentlemen who 
 sought the attention of your Honorable Committee, to 
 the fact that persons who were qualified were awarded 
 the seats claimed by men who were disqualified. This 
 action was taken by the body itself after it had reorgan- 
 ized, by the election of its presiding officer, and by a vote 
 which would not have been changed had the three persons 
 who were by General Terry decided to be disqualified, been 
 permitted to participate in the proceedings. Hence if the 
 organization had been lawfully perfected by the election 
 of its presiding officer, the admission of these persons 
 was the act of that lawful body. My own opinion is that 
 it was in the power of the General commanding the Dis- 
 trict of Georgia under the reconstruction acts to have 
 enforced such action. Your attention is invited to my 
 views upon this point, as embodied in my correspondence 
 
18 
 
 with the Major General commanding the District of 
 Georgia, a copy of which is printed in the appendix 
 marked "B." 
 
 I also invite your attention to the views and conclusions 
 of General Terry upon this subject, printed in appendix 
 marked "C." My impression and understanding is that 
 the majority of the House based their action in this matter 
 upon the same ground taken by General Terry, and for 
 the reasons therein set forth. 
 
 We should keep in view the fact that at the election,, 
 when these persons who are disqualified were candi- 
 dates, the publicly-proclaimed object of the party 
 with which they acted was to defeat the reconstruc- 
 tion policy by voting down the new constitution. Tc 
 do this the more effectually by bringing out their 
 voters, the Democratic party nominated candidates for 
 every office provided for in the new constitution. Of 
 course, il their primal object — the defeat of the new con- 
 stitution — was accomplished, there would be no offices 
 for their candidates to fill ; hence they were selected for 
 their popularity on their war record, without regard to 
 their eligibility under the law, although all parties had 
 been put on notice by a general order from General 
 Mead of what the law fixed as disqualification. 
 
 My opponent was the gallant Lieutenant General 
 Gordon, who won his fame in the Confederate ranks at 
 Gettysburg ; and so throughout the State candidates were 
 nominated not because they were qualified to hold office 
 under the law ; not because their party expected or de- 
 sired them to hold office under the reconstruction consti- 
 tution, but simply and solely to bring out votes by their 
 rebel record against the constitution. And I respectfully 
 submit that the strict application of the law and the par- 
 
19 
 
 liamentary rule in these cases becomes marked retribu- 
 tive justice. 
 
 Mr. Caldwell, however, in his last paper before your 
 honorable committee, says : 
 
 "We care but little for the irregularities of the present 
 organization, and are willing for it to stand if Governor 
 Bullock may not be allowed to carry out his ruinous 
 designs. If you shall suffer everything that preceded 
 the act to promote reconstruction to be ripped up and the 
 official terms to be extended as the Governor proposes, it 
 will throw us into inextricable confusion, and perhaps 
 involve us in financial ruin. If you recognize the valid- 
 ity of the Legislature prior to the expulsion of the colored 
 members, let all the acts of the body up to that time 
 stand, admit the present Senators elect, and confine the 
 official terms within the limits prescribed by the ordi- 
 nance of the convention and the constitution, we are con- 
 tent," etc., etc. 
 
 It has never been proposed to extend any officer's 
 official term, although there are plenty of men in office 
 in Georgia to-day, who have '■'■ extended their term'^ since 
 the time when JefT Davis was elected President of C. S. A. 
 
 All that I have said upon that subject is that when the 
 organization of the Legislature shall have been accepted 
 by Congress, and the State shall have been admitted to 
 representation and thereby become a State in the Union, 
 that then the members of the Legislature will enter as 
 members dejure upon the constitutional term for which 
 they were elected. 
 
 The convention which framed the constitution, adopted 
 an ordinance to provide for the election of civil officers 
 at the same time of voting for or against the constitu- 
 tion, which, in its preamble, says : 
 
 " Whereas^ All civil offices of the State are only provis- 
 
20 
 
 ional until this State is represented in Congress ; and 
 whereas^ the interests of Georgia require that all civil 
 offices should be filled by loyal citizens, according to the 
 provisions of the constitution being framed by this Con- 
 vention at the earliest practicable moment and for the 
 purpose of avoiding any unnecessary delay or loss of 
 time and useless expense to the State," etc. 
 
 It was thus clearly provided that the persons elected at 
 the time of the ratification of the constitution should simply 
 be -provisional officers until the State was admitted. 
 When that event took place, they then became the offi- 
 cers of the State government in fact — the constitution 
 which had been ratified by the people became of force 
 by the recognition of the State by Congress, and the 
 regular terms of office would then be decided and restric- 
 ted by that constitu-ion. 
 
 Certainly no loyal man — no man who has the welfare 
 and safet}^ of the government established under the nevv 
 constitution in Georgia at heart can ask or wish to 
 deprive his friends of the opportunity of carrying out, in 
 good faith and effiictively, the provisions of that consti- 
 tution, the securing of equal justice and equal rights 
 before the law for all of our citizens, the opportunity to 
 vote undisturbed by the intimidations of Ku Klux assas- 
 sins, and the establishment of free schools, as provided 
 in that instrument. 
 
 It is quite reasonable that Mr. Caldwell should sa}'-, 
 speaking for himself and the party opposing the recon- 
 struction policy, whom he now represents : 
 
 "We care but little lor the irregularities of the pres- 
 ent organization. If you recognize the validity of the 
 Legislature prior to the expulsion of the colored mem- 
 bers, admit the Senators elect," etc., etc. 
 
21 
 
 For little do they care for anything, either regular or 
 irregular, if the seating of Messrs. Hill and Miller can 
 only be accomplished, and their friends be permitted to go 
 through the farce of an election similar to the reign of 
 anarchy and terror which is politely termed, '■'■carrying 
 the State for Seymour and Blair. '^ 
 
 What loyal men ask and expect at the hands of Con- 
 gress is that the high position which Congress has taken 
 in putting down the usurpations of the Georgia rebels 
 shall be maintained, and that now when an organization 
 has been perfected in accordance with the late act to 
 promote the reconstruction of Georgia, whereby the 
 Legislative power rests in the hands of the friends of 
 the new system of government, they shall be per- 
 mitted to carry out the measures which the people 
 adopted in voting for the Constitution ; and thus, by 
 their own legislation, provide means for their protec- 
 tion, so that when the regular legal time for the 
 election shall have arrived, it may be a free and fair ex- 
 pression of political preference on the part of the voter, 
 whether he be poor, ignorant and black, or rich, arro- 
 gant and white. Whether he be Republican or Demo- 
 crat, Radical or Ku-Klux. 
 
 It seems to serve the purpose of these people who are 
 endeavoring to prevent the state of facts to which I have 
 just referred, to allege that I have " designs" which are 
 "ruinous" to the State, and that all sorts of fearful 
 calamities will inevitably befall the State if a Republican 
 Legislature is not checked and dispersed with as little 
 delay as possible. But where can be found a safe foun- 
 dation whereon to rest a belief that a legislature composed 
 of men, a majority of whom have risked their lives and 
 their property in their efforts to carry out the Congres- 
 sional policy of reconstruction and establish a state gov- 
 
22 
 
 ernment founded upon the consent of all the governed 
 without regard to race or color, will fail to carefully guard 
 and protect their own interests and the interests of the peo- 
 ple they represent by promptly bringing up for investigation 
 and, if found guilty, to punishment, any officer of that 
 government who fails or neglects to perform his duty, or 
 wilfully violates the laws by which he is to be controlled? 
 Are the friends of the new constitution less likely to 
 guard it and punish violations under it, than its oppon- 
 ents and its enemies? 
 
 The Republicans endured the government established 
 by President •Johnson in Georgia for nearly two years 
 beyond the term for which that government was elected, 
 and made little, if any complaints; and now why should 
 the Democrats of Georgia, through their mouth-pieces 
 here, make such a terrible outcry against a Legislature 
 with a Republican majority which does not propose to 
 extend its term, but simply to hold the term for which 
 it was elected? Why should these Democrats plead 
 that the time occupied with their revolutionary proceed- 
 ings, during which the government of the State was 
 provisional, should be now counted against the term of 
 the lawfully organized body ? 
 
 The answer is found in their fear of losing their power 
 and control, and their opportunity to longer obstruct the 
 establishment of a loyal Republican government in 
 Georgia. 
 
 So far as I am personally concerned, it is well-known 
 to my personal friends and to my business acquaintances 
 that I retain the office I now hold at great pecuniary 
 Sicrifice to myself, and there is certainly little comfort in 
 being the target of either Billingsgate or bullets. But 
 as I have heretofore assured the President and Gen- 
 
eral Terry, I now assure you that my resignation is at 
 their service. My only ambition is to firmly establish a 
 Republican government in Georgia, and if that can be 
 promoted in the least degree by my retirement, it w^ill be 
 a pleasure for me to yield the office. Rebel faultfinding 
 and abuse, how^ever, w^ill never accomplish that result. 
 
 I am unwilling to believe, and the men who have 
 risked their lives, their property, and their good name in 
 sustaining the great principles of republican liberty in 
 Georgia, are unwilling to believe that this honorable com- 
 mittee will listen to or be controlled by the pleas presented 
 here by the enemies of good government and the enemies 
 of our domestic peace, even though they be presented, as 
 they now are, by representatives who have heretofore 
 acted with your friends, and therefore, now hope the 
 more eflfectually to forward the purposes of their new 
 found allies. 
 
 We believe that your action will be in harmony with 
 these great principles, and of a character to sustain the 
 party which has upheld them. With such action, the 
 friends of good order and good government in Georgia 
 will soon disclose their ability to maintain themselves. 
 
 If, however, such action should be taken as will 
 stimulate and encourage a renewal of the active hostility 
 to the Government and its friends which has now, since 
 the late action of Congress, in a great measure subsided, 
 we shall hope that, upon a more thorough investigation 
 and full consideration of the great issues involved, the 
 American Congress, which has never yet failed gal- 
 lantly and consistently to uphold the right in the great 
 struggle which is now nearly closing, and to uphold that 
 right, too, even when the most insidious attempts, under 
 guises the most deceitful, have been made against it, will 
 
24 
 
 render its verdict in favor of loyalty and justice, and 
 against treason and treachery. 
 
 Until that verdict is rendered we shall labor for the 
 right, and with that verdict we shall be content. 
 
 RUFUS B. BULLOCK. 
 
 There are some references of a personal character that 
 I take the liberty of presenting to your honorable com- 
 mittee in an appendix, and to which your leisurely at- 
 tention is respectfully invited. 
 
25 
 
 APPENDIX A. 
 
 MESSAGE. 
 
 Atlanta, Ga., February 16, 1870. 
 To the Senate and House of Bepre^entatives 
 
 of the Provisional Legislature: 
 
 Some misapprehension having arisen as to the effect of tlie Act 
 of Congi-ess of December 22, 1869, npon the ordinary legislative 
 acts of tlie Legislatures of 1868-'69, I deem it projier to say that, 
 in my judgment, the Act of Congress referred to does not render 
 invaiid any of the ordinary laws i)assed by those bodies. 
 
 The Reconstruction Acts of March 3, 1867, and July 19, 1867, in 
 exi)ress terms declared that ''no legal State governments" existed 
 in the States therein named ; yet the Ordinances of the Conven- 
 tion of 1865, and the Acts of the Legislatures of 1865 and 1866, 
 have been uniformly, by the military authorities and by our own 
 Courts, held legal and binding. The " Scaling ordinaiice" of the 
 Convention of 1865, "the Evidence law" of 1866, both Acts of 
 immense importance, were, during the whole admini^^trations of 
 General Pope and General Meade, enforced by the Courts as valid 
 and binding laws ; yet these Acts were passed l)y bodies which 
 Congress declared to be Legislatures of no "legal State gov- 
 ernments." 
 
 General Pope and General Meade were put in command in this 
 State to enforce " the laws. " The Courts of Georgia sitting under 
 the administration of the military authorities of the United States, 
 never for a moment seem to have thought that the Acts of the 
 Legislatures of 1865 and 1866 were not laws, and yet Congress had 
 in express terms declared that "no legal State government existed 
 in the State." 
 
 It would seem from this action that the declaration of Congress 
 "that no legal State governments exist in the late rebel States," 
 must be understood in a qualified sense, to wit : no legal State, 
 competent to take part in the Government of the Union, and 
 proper to be recognized as State governments under the Constitu- 
 tion of the United States. 
 
 It was not the intent of Congress, by any of its reconstruction 
 legislation, to render invalid any of the laws passed by the Legis- 
 latures it subsequently declared' illegal, except so far as those laws 
 were obnoxious to the Constitution and laws of the United States. 
 
 It is true, it has not been the policy to permit legislative assem- 
 blies, as sucli, to convene and legislate, except for specific purposes 
 «duriug the military regime ; but the whole practice of the Govern' 
 D 
 
26- 
 
 ment has been to recognize as valid, laws actually passed and not 
 repndiated by the United States. 
 
 The simple fact that from March, 1867, to July, 1868, the Courts 
 of this State, during the administrations of Generals Pope and 
 Meade, and l)efore the C'onvention of 1868 had ratified those hiM^s, 
 administered without question the Ordinances of the Convention 
 of 1865, and the acts of the Legislatures of 1865 and 1866, is a 
 judicial determination of tlie highest tribunals known to our law,, 
 that the ordinary laws of said bodies were valid and binding as the 
 acts of a Legislature de facto^ however illegal the bodies might 
 themselves have been as "•State Legislatures," in view of the 
 reconstruction acts. 
 
 During the existence of the military supervision, meeting of 
 legislative bodies, except for specific purposes, have Iteen deemed 
 incompatible with tlie actual state of affairs ; but in all the States, 
 laws passed by bodies meeting as such, when the military power 
 was in fact withdrawn, have been uniformly recognized and acted 
 upon as valid and biuding. 
 
 It is, therefore, I tliink, a])parent, from the uniform action of 
 the courts, and of the United States authorities, that the laws of 
 tlie Legislature of 1868 and 1869, and its acts which were not of a 
 political cliaracter, are perfectly valid, notwithstanding the LTnited 
 States, by the act of December 22, 1869, has, in effect, declared 
 that "no legal State Government existed in this State" at that 
 time. And tluit the impression which is sought to be created that 
 contracts are invalidated, that State bonds are repudiated, and 
 that corporations, oi'ganized upon the basis of the late legislation, 
 are without legal foundation, is entirely groundless. Such im- 
 pression is only created for the purpose of misleading the public 
 mind, and defeating the full effect and true intent and purpose of 
 the Reconstruction Acts. Argument upon this point seems to be 
 superfluous, added to the material fact that our bonds are saleable 
 at a higher rate than those of any other Southern State; and that 
 the bonds of railroads which have been endorsed under the author- 
 ity of the legislation of 1868, are selling at their full value. 
 
 It lias been suggested to me from various quarters, tliat it would 
 be wise for your body to take some action for the temporary relief 
 of the people from the present pressure for the payment of the war 
 debts contracted before 1865; now made doubly burdensome by the- 
 late decision of tlie Supreme Court of the United States, that those 
 contracted before 1862 are payable in gold. 
 
 As, however, in my judgment, until your action to complete tlie 
 reconstruction ®f the State is accepted "by Congress, it is not proper 
 for you to undertake general legislation,' I would respectfully sug- 
 gest that you adopt some resolution expressive of the wishes of the 
 General Assembly on this subject, with the liope that the General 
 commanding may, by his order, cause the same to be enforced. 
 
 When the last step in the reconstruction work shall have been 
 taken by the declaration of the result of the Senatorial election, I 
 would respectfully recommend that a recess be taken for such a 
 time as may to you seem best, pending the action of Congress for 
 our admission. 
 
 RUrUS B. BULLOCK, 
 
 Provisional Governor, 
 
•n 
 
 APPENDIX B. 
 
 Atlanta, Ga., January 19, 1870. 
 Genekal: Inclosed I hand j^ou tlie apjilication of William Guil- 
 ford, colored, to be awarded tlie seat of J. C. Drake, a disqnalilied 
 man, who received the highest number of votes in IJpson county. 
 Had the election been held under civil State autliority, and were 
 the legislative organization subject to civil jiuisdiction, I should 
 most certainly issue the certificate to Guilford. 
 
 This is a sample case, similar to a number of others, and if de- 
 cided in the affirmative will insure justice to the colored race 
 through a loyal Legislature. 
 
 I respectfully invite your attention to the inclosed argument iu 
 favor of such a course. 
 1 am, general, very respectfullv, your obedient servant, 
 
 EUFU8 B. BULLOCK, 
 
 Provisional Oovernor. 
 Major General Terry, 
 
 Commanding District of Georgia. 
 
 Atlanta, Jaminry 17, 1870. 
 Georgia, Fulton Countg: 
 
 The petition of William Guilford, (colored,) of the county of 
 Upson and State aforesaid, respectfully showeth unto your Excel- 
 lency that, under and by virtue of General Orders Nos. 39 and 40, 
 issued by General Meade, dated, respectively, Atlanta, Georgia, 
 March 14 and 15, 1868, an election was held in the county of Up- 
 son, beginning on the 20th day of x\pril, 186S, and continuing four 
 days, for Governor, members of Congress, members of the Gen- 
 eral Assembly, and other officers of this State; that, at said elec- 
 tion, J. C. Drake and your petitioner were candidates, in said 
 county of Upson, for a seat in the House of Kepresentatives 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 
 Congress, (see act to admit the State of ]^orth Carolina, * * 
 Georgia, * * June 2-5, 1868,) and that your petitioner was qual- 
 ified; that, ou the 2oth day of June, Major General Meade issued 
 General Orders Xo. 90. Headquarters Third Military District, an- 
 nouncing ''that from the returns made by the boards of registra- 
 tion of the election lield as aforesaid * * it appears that * * 
 J. C. Drake, of Upson county, * ■• was elected Representative 
 in the General Assembly;" that the said General Meade failed 
 and the General Assembly refused to liear the ap]»lication of your 
 petitioner, showing that the said Drake being disqualified, your 
 
28 
 
 petitioner was, under the hvAvs tlien and now of force, tlie legally 
 elected Representative, and should have been awarded tlie seat. 
 
 Your petitioner further slioweth unto your excellency that, un- 
 der the recent act of Congress dated December 22, 1869, entitled 
 "An act to i)romote the reconstruction of the State of Georgia," 
 tlie second section of the said act reqiiires one of the two oaths to 
 be taken by the person claiming a seat in either branch of the gen- 
 eral 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 proceedings 
 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 Con- 
 gress above mentioned, hence is ineligible to a seat in the house of 
 representatives in this State. 
 
 Your 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 pro- 
 visions of the present constitution of this State, and said recent 
 act of Congi-ess, he is qualified to hold a seat in said house of rep- 
 resentatives. 
 
 Your petitioner further showetli that, under the fourteenth ar- 
 ticle of the Constitution of tlie United States, said Drake cannot 
 hold a seat in the general assembly of this State, Avhich has been 
 demonstrated by his refusal to qualify as required by recent act of 
 Congress; which enforces said fourteenth article. 
 
 Your ])etitioner further showeth that, under the law of this 
 State, as appears in section 121, Irwin's code, it is provided that, 
 if at any poi)ular election to All any office, tlie person elected is 
 constitutionally ineligible, 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 tlie 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 Rurus B. Bullock, 
 
 Provisional Governor of the State of Georgia. 
 
 In the enforcement of the act of December 22, ISGO, two (jues- 
 tions have presented themselves: 
 1st. Who is the final judge of eligibility of a member of the leg- 
 
29 
 
 islature; the member himself, the house to wliich he claims to be 
 elected, or the general commandingV 
 
 2d. If any are found ineligible, is^ it proper that the commanding 
 general direct the next liighest person voted for to take his place, 
 and participate in the reorganization, or if this is to be left to the 
 houses after they are organized? 
 On these questions the folloAving observations are submitted: 
 When at tiie cessation of armed'resistance by the rebels, in May, 
 1865, the several States lately in rebellion were found, under the 
 Constitution of tiie United States, to be absolutely witliout legal 
 civil government, undoubtedly it devolved upon the United States, 
 in the then status in fact of affairs, and under article 4, section 4, 
 of the federal Constitution, to see to it that legal civil government 
 should be re-established. 
 
 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 organi- 
 zation, and superintend, by such means as should appear wise and 
 proper, the process of organization. 
 
 In pursuance of this power. Congress, on the 2d of March, 1867, 
 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 commanders of the district therein provided for, but 
 authorizing them to make use, in their discretion, of any civil or- 
 ganization they might find in existence. (Sections 1 — 3.) 
 
 This bill also provided that until the people of said States should 
 be admitted to representation, any civil governments which may 
 exist therein shall be deemed ]Trovisional only, and be subject to 
 the paramount authority of the LTnited' States. (Section 6.) 
 
 It was also provided tluit this act should be inoperative when- 
 ever 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 w^hole effective power of preserv- 
 ing order and superintending the process of organization, is con- 
 ferred upon the general commanding the several districts pro- 
 vided for. 
 
 The supplemental act of March £3, 1867, is still more emphatic 
 upon this point. The commandiiig general is therein authorized 
 to appoint registers, and generally clothed with the chief superin- 
 tendence of the process of organization. 
 
 The additional supplemental act of July 19, 1867, is more em- 
 phatic still, declaring in express language that the said '• govern- 
 ments," if continued, were to be subject in all respects to the mil- 
 itary commanders. 
 
 The commanders are declared not to be bound in their construc- 
 tion of the law by the opinion of any civil officers of the United 
 States. 
 
 It is also enacted that the several acts are to l)e construed liber- 
 ally to the ends that the intents thereof may be fully and perfectly 
 carried out, which intents, by the preamble to the original act. 
 
30 
 
 are declared to be the establishment of loyal republican State 
 governments. 
 
 In pursuance of these acts, the military commanders have uni- 
 formly exercised, at their discretion, such powers of civil govern- 
 ment and such 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 
 authoritative interpretation to laws, and generally acted as su- 
 l)remearl)iters of every question which presented itself , not clearly 
 ])rovided 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 military, and that in their civil capacity they are inde- 
 pendent of eve'n the General of the Army and Secretary of War, 
 and commends them in the following terms: 
 
 " It is ].*ut 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 wlio would not yield to a positively 
 expressed wish in regard to any matter of civil administration 
 from eitlier of tlie officers placed over them l)y 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 wliich they are 
 alone ]-esponsible." (McPherson's Manual, 18G8, p. 314.) 
 
 It would appear, therefore, to be incontestable, that by the ex- 
 press language of the reconstruction acts, hj tlie practice of the 
 generals conim'anding tlie various districts, and by the opinions of 
 the General of tlie Army and the Secretary of War, that the full 
 superintendence of the process of reconstruction, and the au- 
 thoritative interpretation of the law in all doubtful questions, is 
 in the military commanders of the several "military districts," 
 provided for by the act of March 2, 1867, and unless there be some- 
 thing in the peculiar status of Georgia, or in the acts of June 25, 
 
 1868, and December 22, 1869, modifying this power, under the cir- 
 cumstances the right of the Commanding General to " investi- 
 gate " the eligibility of the claimants to seats is unquestionable. 
 
 The act of June 25, 1868, recognizing the "Constitution " as 
 rejinblicau and fixing the terms in which the State should be ad- 
 mitted to representation, clearly contemplates (section 2) tliat the 
 liegislatures shall be convened by the Governor elect, and not by 
 the General Commanding; 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 w^e're separately convened, the 
 members qualified, and the organization effected under the direc- 
 tion of the Provisional Governor, with the concurrence and advice 
 of General Meade, no reference at all l)eing liad in the organiza- 
 tion to the eligibility of tlie members under the act of June 25, 1868. 
 
 When the organization was nominally complete, the two Houses 
 
31 
 
 notified 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 dis- 
 qualified. 
 
 To this General Meade replied, in substance, that in his judg- 
 ment neither House was organized until all ])ersons 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 govern- 
 ment was provisional, to see that the laws were obeyed, he would 
 not recognize the Legislature or any of its acts until satisfactory 
 evidence was produced to him that all persons disqualified by the 
 reconstruction laws were deprived of seats.'' (General Meade's 
 Report, page 65.) 
 
 Upon this the several Houses proceeded to an investigation, and 
 reported "that all the members of both Houses were eligible." 
 
 This report being communicated to General Meade, he an- 
 nounced that " he had no further opposition to make to their pro- 
 ceeding to the business for which they were called together." 
 (General ]Meade's Report, ]>ages 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 aftej- he had used it he might overrule its action 
 accordingly, as he w«s or was not, on the whole, satisfied that it 
 Avas right. 
 
 In reference to this very matter he had, on July 6th, telegraphed 
 to General Grant (Report, page 35,) and inquired, "If, in case the 
 Legislature failed to purge itself, he had power to control the 
 matter. " 
 
 July 8, 1868, General Grant answers: " Xo person unable to hold 
 ofiice 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 Rawlins, Chief of Staff, also telegraphed a reply con- 
 cluding thus: 
 
 " The reconstruction acts are to be construed liberally, to the end 
 that all the intents thereof, to wit: the reestablishment of civil gov- 
 ernment in the States lately in rebellion, may be fully and per- 
 fectly carried out, and it would seem that persons ineligible to hold 
 ofiice under their provisions 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 re- 
 gard the action of the two Houses as final, says: 
 
 "My judgment, therefore, is to acquiesce in the decision of the 
 Senate (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 liis disi)atch tlius: 
 
 " What I desire to know is, whether in your judgment my duty 
 requires me to overrule the deliberate act of the Senate, and judge 
 for myself on the qualifications of the members. 
 
32 
 
 "I have no doubt of my power in tlie premises, but do not feel 
 that I am called on to do more than I have done." (General 
 Meade's Eeport, itnge 38.) 
 
 It is very apparent, therefore, that while General Meade was 
 disposed under the circumstances to acquiesce in the decision of 
 the two Houses, lie 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 judg- 
 ment of Congress. 
 
 The "judgment of Congress" is announced bv the act of De- 
 cember 22, 1869. 
 
 This act has for its whole purpose the intent to repair tlie mis- 
 take made by Major General Meade, in permitting the very body 
 to be purged to be made up in the first instance of "those who were 
 to be excluded by the jiurging process. 
 
 It is generally contended tiuit the Congress of the United States, 
 as a means of curing the mistake of Major General JMeade, in 
 taking as conclusive of eligibility the deliberate legislative judg- 
 ment of the several Houses as ]>olitical bodies, has been guilty of 
 the absurdity of making tlie judgment of tlK.- very men who are 
 charged to be ineligil)le, 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 eligil)ility. What the whole body deliberately failed to 
 do is left to be done, and that without appQpl, by the very indi- 
 vidual members whom it is charged were improperly admitted. 
 So preposterous a conclusion ought to liave very clear and positive 
 language in the law to support it, and ought only to be arrived at 
 when the Avords 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 2o, 1868, contemplates that the Legislature shall be con- 
 vened by the order of the Governor. 
 
 It would be a gross misconception of this law to construe it by 
 itself. It must he read and understood in connection with the 
 other acts iipon the same subject. 
 
 Its title announces that it is an act to "promote the reconstruc- 
 tion of Georgia." 
 
 It assumes that the reconstruction of the State is still incom- 
 plete ; that the government existing in the State is still provisional, 
 and "subject, "in the words of the act of July 19, 1867, "in all re- 
 spects, to the military commander of the district," and "to the 
 paramount authority of Congress," and is to be construed as ad- 
 ditional and supplemental to the reconstruction acts, and not as 
 an independent act. It leaves, therefore, the authority of the 
 Military Commander precisely where the otlier acts placed it, ex- 
 cept as that authority is modified by the act itself. 
 
 The oath prescribed is merely cumulative, an additional safe- 
 guard 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 tlie late rebel States Avho has held 
 office and then afterward engaged in rebellion, unless he be relieved 
 from disabilities by n, two-thirds vote of Congress. 
 
 And it is trifling with that whole policy to permit, if there be 
 
33 
 
 any possible means to prevent it, tlie very first Legislature, before 
 reconstruction is complete, and while tl)e military jurisdiction is 
 still paramount, to be organized in defiance of that policy, with 
 the vain hope that after the organization is complete, tlie body, 
 which so signally failed before, will itself purge itself of its ineli- 
 gible members. 
 
 So long as the State is denied representation by Congress, the 
 power of tlie General Commanding is complete. He may, as did 
 General Meade, in his discretion, refer the question to the Legis- 
 lature, but the success of that experiment, and the subsequent ac- 
 tion of Congress, has notbeensuchas 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 tlie member conclusive, 
 or contemplating that the question shall be left to the bodies after 
 they are organized, when fairly considered, has directly the oppo- 
 site meaning. 
 
 It provides (section 1 ) that the Legislature shall proceed to or- 
 ganize "under the laws of the United States." 
 
 It provide-s further (section 4) that the persons so declared elected 
 "and entitled to seats, and who sliall take the oaths provided, 
 shall," &c. 
 
 It provides (section 3 ) tliat it shall be illegal to prevent any per- 
 son elected as aforesaid, who has taken one of the oaths prescribed, 
 and otherwise complied with tliis act, from participating, &c. 
 
 It provides (section 6) that it shall be illegal and revolutionary 
 to exclude any one elected as aforesaid, and otherwise qualified, 
 from participation because of his race or color. 
 
 By section 4 it is not enough, by the very terms of the act, that 
 he shall have been elected and taken the oaths, he must be entitled 
 to a seat. 
 
 It is not enough, by section 5, that lie shall have taken t!ie 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 il- 
 legal to exclude him from his race or color. He must be otherwise 
 qualified. 
 
 If the taking of the oath is to be conclusive, why should the Con- 
 gress also say "and be entitled to a seat," "have otherwise com- 
 plied," and "he be otherwise qualified?" 
 
 It is a fair mode of consideration to assume that each word 
 and plirase of an act has a meaning, and there can be no con- 
 ceivable 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 ; es- 
 pecially is this construction proper if it be considered that the 
 v/hole necessity for the act grows out of the fact that in July, 
 1868, not only many individual members were sworn in who Avere 
 ineligible, but a majority of the two houses determined, after (as 
 it was said) full investigation, that there were no ineligible mem- 
 bers in either house. 
 
 That the oath 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 Geor- 
 gia constitution requires that each member shall swear that he 
 E 
 
S4 
 
 lias not obtained his election illegally. Is that oath conclasive ?' 
 May not the house investigate 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 poAver to de- 
 termine 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, tlie Commanding General might, as did General Meade, 
 in his discretion, refer it to them. But so long as the reconstruc- 
 tion laws are not fully com])lied with, it is the right of the Gen- 
 eral Commanding to see to it that the laws are complied with, and 
 under the experience of July, 1868, and the action of Congress, it 
 would seem that in such a question as this, so vital to the organ- 
 ization of the Legislature, so distasteful as this rule of ineligibility 
 has i)roven to the reactionary party, that its final decision ought 
 to be neither with the member himself nor with the body which 
 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 oagcinization 
 of the liody which is to decide his case, may not be a very great 
 evil, but when tlie charge of ineligibility includes a member, it is 
 obvious tliat, if they be permitted to become members in ftict, it will 
 be almost impossible to unseat them. 
 
 Ordinarily there is no other method, because there is no superior 
 power; but in the status- of affiiirs as they exist now in Georgia, 
 tiiere is such a power, and an occasion plainly calling for its in- 
 terference. 
 
 What is to be gained- in the promotion of reconstruction by re- 
 peating the proceedings of July, 1868? With the act of Congress- 
 staring them in the face, that no person was eligible to office whO' 
 had held office before the rebellion, and thereafter engaged in re- 
 bellion, these very men delit>erately took the oath of office, and a 
 majority of each house declared them all eligible. Congres& 
 has reversed the proceedings, declared the Houses not properly or- 
 ganized, provided for a reorganization, and it is contended that of 
 necessity tlie 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 u[)on the tirst brancii of the question, the power of the 
 general commanding to "investigate" tlie question of ineligibil- 
 ity, and to prevent tlie failure of the whole Congressional scheme 
 by the recklessness of tiiose who are ready to move heaven and 
 earth to work its discomfiture. 
 
 But there is a second question. There a.re from fifteen to eigh- 
 teen of those declared elected by General Meade who have neg- 
 lected, refused, and are doubtless unable to take the oath, and 
 who are by express language of the law declared to be ineligible.. 
 There are from ten to fifteen more who 7uay be found ineligible by 
 the commission now sitting. The question arises, Shall the House 
 proceed to (trganize with only such of its legal members as are liere 
 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 
 
do 
 
 eligible be permitted to take the oatli and participate in tlie or- 
 ganization? 
 
 There can be no question that it is the law of (leoruia that the 
 votes cast at an election for one who is inelip,ible to the ])Osition 
 are not to be counted, and it is the dvity of the Governor who 
 issues the commission, if he be satisfied that the highest man is 
 ineligible, to give the commission to the next highest who is 
 eligible. 
 
 He is dechu-ed by the code to be the person legally elected, and 
 he is entitled to the certificate of election. 
 
 The proclamation of General jSfeade only pnri)orts to he based 
 upon tlie returns, and such was in truth tlie basis of the order. 
 Tt is not at all leased on the eligibility of the persons named, but 
 upon the simple fact that the returns show the persons named to 
 have received the highest vote. 
 
 Had the question of eligibility been presented to General Meade 
 before tliat proclamation was made — had the board upon whose 
 report it is founded taken the eligilnlity of the persons named 
 into consideration, perhaps the list would have been very different, 
 since, by the law of Georgia, they would have been compelled to 
 <le(!lare elected in every case where the liighest 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 per- 
 fectly consonant with the law of the State. 
 
 That tlie 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? 
 
 Tiie bill directs the Governor to convene by proclamation those 
 declared elected by General Meade's order of June 25, 1868. And 
 it further provides that when the members ''so elected," not so 
 "declared elected," shall convene, each ''member" and each and 
 every person "claiming to be elected" sliall take the oath, &c., 
 and every person "claiming to be so elected who shall refuse, de- 
 cline, 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 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 contem- 
 plates that no person ineligible, though he may claim to be 
 "elected," is not in 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 repe- 
 tition of those words. 
 
 The persons elected to the Senate and House of llepresentatives 
 of Georgia are, by the law of Georgia, tliose who got the highest 
 
:^6' 
 
 vote if they are eligible, and those wlio got the next highest vote 
 in cases where the highest are ineligibh\ 
 
 These classes, and these only, are the persons who fill the de- 
 scription of section o, to wit: '"The persons elected as aforesaid — 
 that is, elected to the Senate and House respectively — who shall 
 take the oath and shall proceed in said Senate and Honse, to 
 wdiicli they have been elected, 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 admis- 
 sion of the next highest as the persons elected, had brought prom- 
 inently 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 in 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 discre- 
 tion of the general commanding, be applied to the case. 
 
 It will close up the whole matter; it Avill put the new govern- 
 ment 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 in 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 reconstruc- 
 tion acts is specifically required, and would be in accordance with 
 the whole policy of Congress, to wit, to set the new government 
 afloat under the guidance of the friends of reconstruction, and 
 not under the control of those wlio have in every conceivable way 
 tried to thwart and obstruct its success. Many of its most im- 
 portant 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 indicate that while the hand of authority is still raised 
 the door for revolution should be closed. 
 
 Section 121 of the code of Georgia, to which reference has been 
 made as fixing the effect of ineligibility, is in these words: "If, at 
 any popular election to fill any office, the person elected is ineli- 
 gible under one of the foregoing rules, the person having the next 
 highest number of votes, who is eligible when a plurality elects, 
 shall be declared elected and be qualified and commissioned to 
 such ofiice." 
 
 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 superior courts were required to be elected by a 
 majority vote ; all other olficers were simply to beelected. So too is 
 the constitution of 1865. The constitution of 1868, which addots tlie 
 
code as the system of law, provides that the person having the 
 majoritv of tlie whole number of votes cast, shall be declared 
 dulv elected Governor. Tlic only otlier officiu's of the State elec- 
 tive by the peo])lc are the members of the general assembly, comity 
 officers, and justices of tlie peace; these, the constitution says, 
 sliall be elected by the qualified voters, &c. The fact that of the 
 several elections provided for, to wit : Governor, members of the 
 Legislatnre, county officers, and justices of the peace, only one is 
 required to have the majority of all the votes cast, is conclusive 
 that it was the intent that at all elections except for Governor, a 
 plurality elects. 
 
 Ruch has alwavsbeen the understanding of thelaw in this State, and 
 snch was the rule adopted Ijv General Meade in issuing theproclama- 
 tion of Jime 2-5, 1868, as will abundantly appear liy an examination 
 of the returns. The law of Georgia has always required a major- 
 ity in the case of the election of the " Governor," and, for awhile, 
 of judges 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 of the common law, but on the rule that, as 
 the constitution required specially a ''majority" in the cases of 
 Governor, it left other elections to be decided by a plurality vote. 
 It follows, therefore, that, under the law of Georgia, if the mem- 
 ber of the Legislature having the highest vote is ineligible, the 
 person having "the hext highest, who is eligible, is to be declared 
 elected and to be qualified and commissioned to such office. 
 
 Ordinarilv, as I have said, the duty of investigating the eligi- 
 bility of meinbers of the Legislature is with that body, and, Avith- 
 out question, if a person nominally elected is found ineligible, that 
 body would declare the next higliest elected and give him the seat. 
 
 SiichAvas the action of the Legislature in July, 1868, in the case 
 of ""Bradlev," senator. 
 
 Bradley was found ineligible, by reason of having been con- 
 victed 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 ap- 
 plication of tins law to the Legislature, until the present crisis 
 has given it birth. 
 
 If'the conunanding general has the power, as most nn(iuestion- 
 ably 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 highest immediately to be declared 
 elected l)y him, must be the inevitable consequence. 
 
 The power to investigate and decide involves the power to 
 cause the decision to be c^irried into its full effect ; the exclusion 
 of tiie ineligible member is l)ut a part of the ejfect; the full deci- 
 sion is not only that the ineligible person is not elected, but that 
 the eligible one is. 
 
38 
 
 APPENDIX C. 
 
 The question whetlier a person who at the election held on the 
 20th, 21st, 22d, and 23d of April, 1868, received within liis district 
 the second highest number of votes for a seat in the Legislature 
 of Georgia, he Ijeing eligible thereto, is entitled to the seat in case 
 the person who received the Inghest number of votes is ineligible 
 under the fourteenth amendment to the Constitution of the United 
 States, is presented in a double aspect. 
 
 First, it is chiimed that by the express provisions of the law of 
 Georgia he is so entitled. 
 
 Secondly, it is claimed that by the general or common law on the 
 subject, he is so entitled. 
 
 On the first point, certain classes of persons are declared by the 
 law of Georgia to be ineligible to office, and it is provided that 
 '■' If at any popular election to fill any ofiice, the person elected is 
 ineligible under the foregoing rules, the jierson receiving the next 
 highest number of votes, who is eligible, whenever a plurality 
 elects, shall be declared elected andbecinalified and commissioned 
 to such ofiice." (Irwin's Code, page 33 and 34.) 
 
 The only one of the foregoing rules referred to which can apply 
 in this case is that which declares that "all persons from any 
 cause constitutionalhj disqualified," are ineligible. 
 
 Tlie question thus resolves itself into this : Were persons who 
 had held any one of the oifices mentioned in the fourteenth amend- 
 ment to the Constitution of the United States, and thereafter 
 entered into the rebellion, cxmstitidionalhj disqualified for ofiice at 
 the time the election of April, 1868, was'heldV 
 
 If at that time any State constitution was in existence in 
 Georgia, it must have been the constitution of 1798. 
 
 The constitution certainly contained no such provisions as those 
 of the fourteenth amendment. If the rebellion and attempted 
 secession operated to destroy the State government, and with it 
 the State constitution — and this seems tobe the position taken by 
 Congress in providing for the reconstruction of tlie rebel States — 
 then there existed at that time no State constitution by the 
 ])rovisi(ms of which any person, for any cause, could have been 
 disqualified. 
 
 Were such persons disqualified bvthe Constitution of the United 
 states ? 
 
 The election was held on the 20th, 21st, 22d, and 23d days of 
 Aiiril, 1868. The fourteenth amendment was not declared to be a 
 part of the Constitution until the 21st day of July, 1868. 
 
 It is true tliat liy the sixtli section of the act of March 2, 1867, 
 the provisions of the amendment were applied to the States lately 
 in rebellion, and it was declared that "no person shall be eligible 
 
39 
 
 to any office under any sucli provisional gfovernment, who would 
 he disqualified from holding office under the tliird article of said 
 constitutional amendment;" Imt this was a statutory provision, 
 not a constitutional one; and it created a statutory disqualifica- 
 tion, not a constitutional one. 
 
 Thus it seems plain that there was then no constitution n I dis- 
 qualification of any kind, on account of participation in the rebel- 
 lion, and tliat, therefore, tiie above mentioned provisions of the 
 statute of Georgia have no application to the case. 
 
 The second point remains to be considered. 
 
 In England, the country from which Ave mainly derive our ]>ar- 
 liamentary law, a plurality elects, and votes are given orally. 
 There, it is absolutely established by a long course of decisions 
 that if notice be given of the disqualification of a candidate, every 
 vote given for liim afterward is thrown away, and will be con- 
 sidered as not given at all — as void — as not to be counted as 
 against the person wlio receives the next liigliest vote. The ]>rin- 
 ciple upon wliich this is done is a i)lain oiu'. It is this, viz : The 
 electors at any election are not called ui)on by tlie law to signify 
 whom they would choose to hold a given office without restriction. 
 They are called upon to signify ichkh one of those who are cUciible 
 they would clioose; and he who votes for an ineligible person fails 
 to do tliat which tlie law calls upon him to do, and in contempla- 
 tion (if law does not vote at all, 
 
 Mucli confusion on tliis subject has arisen in the popular mind 
 from the celebrated case of Wilkes and Luttrell ; but I lielieve 
 tluit it will l)e found that througli that protracted struggle tlie 
 principle that the candidate having the next highest number of 
 votes is entitled to tiie office, in case the candidate receiving the 
 highest number is ineligible, was never denied. The i)oint in issue 
 Avas the question of Wilkes' eligibility; he had been ex])elled from 
 the House of Commons, and had been declared ineligible to a 
 reelection by a vote of that body; and it was contended that while 
 that House could expel him it could not disfranehi^c him, that it 
 could not make him ineligible to a reelection, that no Englishman 
 could be disfranchised except by act of Parliament, the concur- 
 rent action of King, Lords, and' Commons; and this point was 
 finally yielded by the Government and its supporters. 
 
 Gushing, (Law and Practice of Legislative Assemblies, pp, 
 66-67,) after stating the law of England, proceeds to lay down the 
 law in this country, as folloAvs, viz : 
 
 "178. In this country, it is equally true, that the election of a 
 disqualified person is absolutely void ; and, in those States Avhere a 
 plurality elects, and where the votes are given orally, as in Eng- 
 land, votes given for a candidate after notice of his disqualifica- 
 tion are thrown away, and the candidate having the next highest 
 number of votes is elected. 
 
 ■•'179. In reference to elections by ballot, in Avhich secresy is the 
 distinguishing feature ; and, in which, consequently, neither the 
 returning officers, nor the electors themselves, are supposed to 
 know f(n- whom the votes are given, until the result is declared ; it 
 seems not unreasonable to consider the votes for ineligible candi- 
 dates to be thrown away, in all cases, and the opiiosing candidate 
 elected, where the electors know or must be presumed to know the 
 
40 
 
 disability; and, in all cases where there is no such actual or pre- 
 sumed knowledge, to hold the whole proceeding merely void. 
 
 '' 180. In reference to elections, in wdiich an absolute majority is 
 requisite to a choice, and in which, consequently, the whole num- 
 ber of votes received is first to be ascertained, votes given for 
 ineligible persons must of course be excluded from the enumera- 
 tion ; for the reason that, as the whole balloting would be void, 
 and all the votes excluded if they were all for such candidates, it 
 would be preposterous to enumerate such votes, where they con- 
 stituted only a part of the votes given in. If, in consequence of 
 such exclusion, the result of the election would be different from 
 what it would otherwise be, the whole proceeding must perhaps 
 be held void or valid, according as the electors have actual or pre- 
 sumed knowledge of the ineligibility of the persons for whom the 
 excluded votes are given." 
 
 It will be observed that a distinction is here made between votes 
 given orally and those given by ballot — a distinction justly founded 
 on the necessity of the case. Voters who vote orally must be noti- 
 fied of the disqualification of their candidate. Those who vote by 
 ballot, i e. secretly, are not entitled to actual notice. Tlie law 
 laid down l)y Gushing has recently received the sanction of the 
 House of Representatives of the United States. Mr. John D. 
 Young was elected a member of the House, in the fortieth Con- 
 gress, from the Ninth Congressional District of Kentucky, by a 
 majority of votes, but he was found and declared to be ineligible 
 by reason of his inability to take the prescribed oaths of office, and 
 his competitor at the election, Mr. McKee, although lie re- 
 ceived only a minority of the votes, was admitted to a seat in his 
 stead. 
 
 It seems to me that this precedent, coupled with the authority 
 of Gushing, shonld be considered as settling the law as far as elec- 
 tions held under Acts of Congress in the States lately in rebellion 
 are concerned. 
 
 But it has been said that the disability must have existed at the 
 time of the election— that the candidate must have been absolutely 
 and clearly ineligible at that time, and that the doctrine that the 
 next highest candidate, is entitled does not apply where the disa- 
 bility might be removed by act of Congress. In regard to this 
 latter position, one thing seems clear, viz: it is absolutely, and 
 diametrically opposed to the practice and decisions in England. 
 Were it to prevail there no votes could be excluded from the count, 
 and " no next highest " candidate could be entitled to an office, for 
 there is, and can be, under the theory of the English Constitution, 
 no disqualification which may not be removed by an act of Parlia- 
 ment. 
 
 Might it not as well be contended that votes for a notorious felon 
 just convicted of his crime should be counted because by a bare 
 possibility an appeal from the judgment of the court before which 
 he was convicted might be taken, or a writ of error brought, and 
 thereupon that judgment reversed? That the disability must have 
 existed cd the time is undoubtedly true: no subsequently occurring 
 disability can justify the rejection of a vote; and that the disquali- 
 ification must have been clear and absolute is equally true. 
 
 It has been said, and is undoubtedly true, that the failure of the 
 
41 
 
 person who received the highest number of votes to qualify after 
 the election, as hj^ refusing or neglecting to take a required official 
 oath, cannot justify the rejection of the votes cast for him; hut it 
 may he observed that leaving out of view the question of notice to 
 the voter, the fact of such failure to qualify may become a part of 
 the evidence of disqualificatio]i. 
 
 To apply these principles to the case in question: By the sixth 
 section of the act of Congress of March 2d, 1867, already cited, it 
 is provided that "no person shall be eligible to any office under 
 such provisional governments who would be disqualified from hold- 
 ing office under the provisions of the third article of said constitu- 
 tional amendment," (referring to the fourteenth amendment) thus 
 putting that article in force in the rebel (States in advance of its 
 adoption as a part of the Constitution of the United States. A 
 disqualification for holding office was thus created by a statute of 
 which every person had actual or presumed notice. Subsequent 
 to tlie passage of that statute, an election was held and certain 
 liersons received the highest number of votes, several of whom at 
 the recent reorganization of the Legislature refused, neglected, or 
 were unable to take the oath which had been provided as a test of their 
 eligibilit!/, and in addition tliereto, filed with the Provisional Gov- 
 ernor of the State applications to Congress for a removal of their clisa- 
 bilities, thus admitting their ineligibility to office vmder the four- 
 teenth amendment. It must be remembered that although the 
 fourteenth amendment was not adopted until after the election at 
 which these persons were elected, its provisions were in force in 
 tlie States lately in rebellion by virtue of the statute, and that if 
 these persons are ineligible now under the amendment, they were 
 ineligible at the time of the election under the statute. It is no 
 new disability which has been imposed. 
 
 I think that the fact of the ineligibility is therefore fully proven. 
 
 Must the electors be charged with notice of the ineligibility of 
 these persons? 
 
 They must, of course, be charged with knowledge of the law, 
 and when it is remembered that the ineligibility in question grew 
 out of the then and still recent events of a great civil war, in which 
 the greatest interest was felt by every person living within the 
 territory of the nation; grew out of jjt(Wic events of tlie most tran- 
 scendent importance, to which the attention of every person was 
 irresistably attracted; tliat the terms of reconstruction had been 
 made the subject of excited and angry controversy, that the fact 
 of the holding of office prior to the rebellion must have been a mat' 
 ter of public notoriety, and the participation or non-participation 
 •of any person in the rebellion must have been well known in the 
 community in which he lived, I think that it is hardly possible to 
 relieve the voters from the presumption of knowledge of disquali- 
 fication. Therefore, under the rule laid down by Cushing, and 
 under the [decision of the House of Representatives, I think that 
 those who received the next highest votes to these persons are 
 entitled to seats. 
 
42 
 
 APPENDIX T). 
 
 Mr. Caldwell, in his ])riiited paper, divides tlie latter i>ortion of 
 it under the head of " Governor Bullock's personal attack." 
 
 It is with great reluctance that I have obtained my own consent 
 to take any notice whatever in connection with a subject of such 
 grave importance as that which the honorable Judiciary Commit- 
 tee now have under consideration, of anything of a personal char- 
 acter. But, as Mr. Caldwell has seen fit to attribute my transmis- 
 sion of a letter addressed to me by the Hon. Foster Blodgett, 
 setting forth information that was conveyed to him by Mr. J^ 
 Mason Rice, as a personal attack upon him, 1 will say that I believe 
 the statement made by Mr. Kice to Mr. Blodgett, and to Hon. C. 
 H. Prince, as alleged in that letter, is true. 
 
 I also invite your attention to the copy of a letter (marked E) 
 addressed to me by the Hon. A. L. Harris, of Atlanta, dated Feb- 
 ruary 22, 1870, which refutes the assertion made by Mr. Caldwell, 
 that " Mr. A. L. Harris, the C4overnor's clerk jyro tern,, and rail- 
 road supervisor, said to me that I should have any place I wanted 
 in his department if I would yield my opposition to the Governor."' 
 
 E. 
 
 ATI.ANTA, Ga., February 22, 1870. 
 To His Excellency R. B. Bullock^ Governor: 
 
 Sir: In a pamphlet purporting to be the " Argument of Hon. J, 
 H. Caldwell and Hon. J. E, Bryant before the judiciary Commit- 
 tee of the United States Senate," occur these words from Mr, 
 Caldwell : 
 
 "Mr. A. L. Harris, the Governor's clerk jyro tern., and Railroad 
 Supervisor, said to me that I should have any place I wanted in 
 his department if I would yield my opposition to the Governor." 
 
 The above statement is entirely incorrect. I remember one af- 
 ternoon, at the JSTational Hotel, having seen Rev. J. H. Caldwell 
 and Mr. J. Mason Rice in conversation, and just after Mr. Rice 
 left Mr. Caldwell I passed that way, when Mr. Caldwell asked me 
 if, provided he supported Governor Bullock and the Republican 
 party, he and his family would be taken care of on the State Road; 
 or, in other words, would they get good paying positions? 
 
 I told him to see the Superintendent, as he alone had the power 
 of making appointments. He intimated that he would like the 
 Senatorship for the long term, while he desired his two brothers 
 and their sons, and his own son, to have lucrative positions on the 
 road. 
 
43 
 
 I never said to Mr. Cakhvell that lie -should have any place he 
 wanted in nn- department," neither did 1 say an\ thin- j.t that 
 teiun- or that could be construed into anything ot the kind. 
 
 Very respectfully, a. l. HARRIS. 
 
 I am also informed that one or two of the brothers and a son of 
 Mr Caldwell are or were employed on the State railroad. 
 
 Each one of the persons whose names are prmted on Mr. CnM- 
 well's pamphlet as a "delegation'— namely, J. E. bryant, J. M. 
 Caldwell, C. K. Osgood, A. J. Williams,^ L. Angier, and John 
 ]3owles— are either disappointed aspirants for position undei the 
 late legislative organization, warm personal friends ot Mr. Joshua 
 Hill, or persons who fear an investigation by the^Legislatiire. 
 
 Mr Brvant, as is well known, is the defeated Democratic can- 
 didate for Speaker. Mr. Caldwell is disappointed ni Senatorial 
 aspirations. Mr. C. K. Osgood and Mr A J. Wi liams are very 
 clever gentlemen, who believe that Mr. Joshua Hill is the greatest 
 statesman that the world ever produced. Mr. John Bowles is the 
 son-in-law of ^Ir. Hill. He was collector ot internal revenue at 
 Au^^usta under appointment from ex-President Johnson, but was 
 removed by President Grant, and a worthy colored man appointed 
 in Ills dTHjCG • 
 
 The party whose name appears in this list as "aST. L. -A-ngier, 
 State Treasurer," will necessarily receive a much more extended 
 
 ^^Ilem-esents, with the others, a paper, entitled ''Governor Bul- 
 lock's Financial Operations," every word of which has been 
 iterated and reiterated through the Democratic newspapers ot 
 Georgia in various ways and shapes since Mr. Angier allied him- 
 self with the revolutionizing Democrats of the Legislature. 
 
 Every charge in it has been publicly refuted, and need not here 
 receive attention, except the reissue of a statement formerly made 
 bv him which I have not heretofore noticed, namely : 'On the 
 21st day of November, 1868, the cashier ot the Georgia N ationa 
 Bank presented the Governor's draft on the lourth National 
 Bank of New York for $25,000, and voluntarily stated that it was 
 to cover Governor Bullock's individual indebtedness to tins 
 
 Tn answer to this I invite your attention to the copy of a letter 
 from the cashier of the Georgia National Bank that came to me 
 about the time of the publication of this matter last summer, and 
 which has not previously been used by myself. This letter is 
 appended below: 
 
 Georgia National Bank, 
 
 Atlanta, Ga., August 29, 1869. 
 To His Excellency, GovenLor Bullock: . , , , . . ,, 
 
 De\u Sir : Referring to Treasurer Angier's letter to the peo- 
 ple of Georgia, of August 27th, published in this morning's Mic 
 Ere, I lind the following statement : • , , ^, a. 
 
 -in contrast to this pitiful amount received by the Treasurer, 
 but since paid into the Treasury, that officer will present to the 
 
44 
 
 public a few instances of the illegal uses of the State funds by the 
 Executive for his own l.ienefit. On the I'lst Xoveniber, 186S, 
 when tlie State had sulHcient funds on liand to meet all reason- 
 ubh^ expenses, (having on the day previous drawn twenty-five 
 tliousand dollars) ($L>5,(JU0,) the (Jasliier of tlie Georgia Ntitional 
 Ijank presented tlie Governor's draft on the Temporary Loans for 
 tH-cntii-Jifc thuuxitml dollars ($25,(J00) mon\ and voluntarily stated 
 that Governor Bullock was indebted to their Bank seccnteen thou- 
 mral dollars ($17,()0(),) and this twenty-five thousand dollars loas 
 to cover ivp mid make good to the Bank the Governor''s individual in- 
 debtedness, although" said deposit was placed to the credit of the 
 State. The State was thus forced to pay, as per statement of 
 Cashier, nearly eleven per cent, on this twenty-five thousand dol- 
 lars, drawn solely as an offset, for the time being, against the in- 
 dividual deficit of the Governor." 
 
 In regard to the State having on hand sufiicient funds to meet 
 all reasonable expenses, &c., 1 have to say, that the Treasury 
 balance, as appears by the Ijooks of the Bank, onthe21st November, 
 1868, after the draft of $l'5,()(J() had been deposited to his credit, 
 was $35,308 95, and that between that time and the 30th of the same 
 month, we paid his checks to the amount of $24,286 50. In addi- 
 tion to that amount we paid his checks during the first week of 
 December to the amount of $19,840 15. From this you will see 
 that the $25,000 was positively necessary to meet the requirements 
 of the Tre;isury, and was drawn from the Bank in less than ten 
 days, and had not the draft been deposited, his account would 
 have been largely overdrawn. 
 
 The statement contained in the paragraph quoted above that 
 when "-the Cashier of the Georgia National Bank presented the 
 Governor's draft on the teinporary loans for $25,000 more, volun- 
 tarily stated that Governor Bullock was indebted to their bank 
 $17,000, and this $25,000 was to cover up and make good to the 
 Bank the Governor's individual indebtedness," I pronounce as 
 positively untrue. 
 
 I deem it but simple justice to you, as well as to myself, that I 
 make this statement. 
 
 Yery respectfully, your obedient servant, 
 
 E. L. JONES. 
 
 The second statement is as follows: "He has paid out of the 
 State treasury nearly two thousand dollars to light Kimball's 
 Opera-house, when tlie building had not been used for State pur- 
 poses over six times at night ; none of the State ofiices being kept 
 open at nights." This, of course, amounts to a direct charge 
 that, with my knowledge and consent, the State treasury was 
 charged with a large sum of money to pay for liglit which was not 
 used for the benefit of the State. To show that tliis statement 
 was made by Mr. Angier, with a knowledge of its falsity and with 
 a deliberate purpose to misrepresent facts which were known to 
 him, I ask attention to the following papers : 
 
45 
 
 Atlanta, Ga., Septembei- 8, 1869. 
 Charles C Bodes, Esq., Supcriiitendent Atlanta Gas Ln/ht C'o)vp<(iii/, 
 Atlanta, Ga. 
 Dear Sih: Please iiilovin me as to how tlie p:as pipes and meters 
 are located in Kimball's Ojtera House, used as the State Capitol, 
 and by whom the gas used in the different stores and rooms in the 
 luiilding is paid for. 
 
 Very respectfully, yours, 
 
 J. A. BURNS, 
 Keeper, &g. 
 
 Atlanta Gaslight Company's Office, SepA. 10, 1869. 
 J. A. Burns, Esq., Keeper of Capitol, &c.: 
 
 Sir: Yours of 8th asking how the gas pipes are arranged and 
 meters located, and by whom the gas is paid for in the Kimball 
 Opera House, used as the State Capitol, is at hand, and, in answer, 
 have to say that the gas used in the cafe, billiard rooms, and res- 
 taurant pusses through a distinct meter set expressly for that pur- 
 pose, and is paid for by Mr. Thompson. The gas used on the fifth 
 floor or dormitories has also a separate meter, and is paid for by 
 Mr. H. I. Kimball. The gas for store Xo. 3 has a separate meter, 
 and is paid for by Mr. Walker. The telegraph ofilice has a meter, 
 gas paid for by the telegraph company. The gas used in stores 
 Xos. 5 and 6 passes through one meter for both, and was paid for 
 by Mr. Cook when he occupied them, since then what has been 
 used has been paid for by Mr. Kimball. The State has two large 
 meters, one of which supplies the House of Representatives, 
 Senate Chamber, Caucus Rooms, and corridors leading thereto on 
 the second tloor, and the otfices of Controller General, Secretary 
 of State, Surveyor, and corridors on the first floor. The other 
 supplies the Library, Court Room and Treasurer's Office on first 
 floor, and all other portions of the building used by the State. 
 
 The gas consumed during the session "of the Legislature last 
 winter, and what has been used since in the different ofiices and 
 corridors, has l)een paid for by the State, which bills have been 
 and are yet rendered (luarterly. The other consumers settle 
 monthly. There are seven meters in the building, and no gas 
 passes through either of the State meters but what is used for 
 State purposes. 
 
 Respectfullv, yours, 
 
 CHARLES C. RODES, 
 Superintendent Athrnta (Tasli(j]it Company. 
 
 Atlanta, Georgia, i^eiAember 10, 1869. 
 Mr. J. A. Barns, Keeper, ttc. 
 
 Dear Sir: We have read the foregoing letter to you, from Mr. 
 Rodes. We put up the gas pipes, chandeliers, &c., used in light- 
 ing Kimball's Opera House, used as the State Capitol; and there- 
 
46 
 
 fore, of our own knowledge, can say that statements of Mr. Rodes 
 as to the location of the meters and rooms snpplied throngli tiiem 
 are correct. 
 
 Respectfully yours, &c., 
 
 HUNNICUTT & ZELLINGRUTII, 
 
 Fhmihcrs and Gas Fillers. 
 
 Atlanta, Ga., Odoher 8, 1869. 
 His Excellexcy Rufus B. Bullock, 
 
 Governor of Georgia^ Atlanla. Ga.: 
 Sir: I have the honor to transmit herewith a communication 
 from Charles C. Rodes, Superintendent of the Atlantic Gas Works, 
 in relation to the location of the gas-pipes and meters in the 
 "Opera House," used as the State Capitol. In conversation with 
 Mr. Rodes, he said that he had explained to Hon. ]^. L. Angier, 
 Treasurer, the manner in which gas was supplied to the different 
 rooms in the "Opera House," and by whom it was paid for, giving 
 him, in substance, all the information contained in his (Rodes) 
 letter to me herewith transmitted. Mr. Rodes made this expla- 
 nation to Hon. i^. L. Angier sometime last spring, and therefore 
 the Treasurer was in possession of these facts when he wrote his 
 address "To the People of Georgia," under date of August 27, 
 1869, and published in the Atlanta Netv Era. 
 I am, sir, very respectfully, your obedient servant, 
 
 J. A. BURNS, 
 Keeper Public Property., dec. 
 
 One niovhig motive for the action of Angier, in liis ellbrts to prevent 
 a full rofogiiition of the reorganization oftlie Legislature, is the great 
 probability that he will not be retained as Treasurer. 
 
 At the next session of the Superior Court, tlie suit of the State 
 against Angier and Ills bondsmen will be called for trial, and lie and 
 his bondsmen will be called upon to pay over 820,000 pains, lines, and 
 penalties, for liis violation of law in using tiie State's inonej' and 
 allowing otliers to use tlie same tor liis private b(!netlt. 
 
 3iucli more could be said not to tlic credit of ^lessrs. Cahlwell, 
 Bryant, .Vngier, and Bowles, but I forbear. 
 
LIBRftRY OF CONGRESS 
 
 e 014 418 844 5 | 
 
LIBRARY OF CONGRESS 
 
 Hollingier 
 pH S3