USA > Georgia > The Confederate records of the State of Georgia, Vol 4 > Part 28
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them. They are Sturges vs. Crowningshield, 4th Wheaton, 122; Green vs. Biddle, 8th Wheaton, 1; Ogden vs. Sanders, 12th Wheaton, 213; Bronson vs. Kinzee, 1, Howard, 311; McCracken vs. Hayward, 2, Howard, 608.
In these cases, stay laws are, by way of illustration, more than once referred to, as violating this clause of the Constitution. In the first, Chief Justice Marshall, who bore a part in the proceedings for the adoption of the Constitution, expresses the opinion that the passing of such laws by the States, was one of the chief causes which induced the insertion of this clause. Judge Par- sons, at page 703 of the 2nd volume of his authoritative treatise on contracts, affirms the proposition, as estab- lished by authority, that "an exemption of property from attachment (by which is meant levy) or a subjec- tion of it to a stay law, or appraisement law, impairs the obligation of the contract." He adds, "such a statute can be enforced only as to contracts made subsequently to the law."
There are, I concede, cases supporting the opposite conclusion, but I think they are sustained neither by the weight of authority nor by the force of logic.
Our own Constitution contains a clause similar to that quoted from the Constitution of the United States. But it is not alone, this duplicate prohibition, which in my opinion, precludes legislation of this character. The first clause of the first section of the second article of the Constitution of Georgia, is in these words, "The Legis- lative, Executive, and Judicial departments, shall be dis- tinct; and each department shall be confided to a separate body of Magistracy. No person or collection of persons, being of one department, shall exercise any power prop-
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GOVERNOR CHARLES J. JENKINS
erly attached to either of the others; except in cases herein expressly excepted." It is to the latter sentence I particularly refer. This investigation and determina- tion of private rights,-the enforcement of contracts between individuals, when one of the parties refuse com- pliance, are clearly powers properly belonging to the Judicial department. Their exercise is invoked by suit, in court, which being instituted, is properly under the control of that department, from the filing of the petition, to the return, of final process, executed. When for the purpose of preventing wrong or oppression, or of doing full and complete justice in any case, it becomes neces- sary to arrest the proceeding, whether before or after judgment, this can only be done by the writ of injunction, and that issues properly out of chancery, which apper- tains, exclusively to the Judicial department. What are the rights upon which the bill under consideration acts? They are those which have been asserted by suits in courts of justice, have been there investigated and adju- dicated, and which those courts are proceeding to enforce by their final processes, called executions. What action does this bill propose upon them? It does not indeed set them aside-annul them, but it suspends action under them for a specified time. What is this suspension, but an injunction of a judicial proceeding? The form of the writ used in the department to which the power properly belongs, is not observed, but the precise end is attained, the injunction is as effectually imposed, as if a writ in due form had emanated from the legitimate source.
Let us look a little more in detail into this matter. A writ called an execution issues from the Inferior Court of Baldwin County, directed to the Sheriff, commanding
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him to make by levy and sale of the property of C D, one hundred dollars, which A B lately in that court recov- ered of him, and further, that he return that writ into court at the next term, which means, in law, that he return it executed. If the Sheriff do not make the money as required, he may, at the return term of the writ, be ruled and compelled to pay it himself, unless he can show good cause for his failure. This is the course of the law, and this its end. But suppose when so called on he should exhibit a writ, sued out of the chancery side of the Superior Court of Baldwin County, at the suit of C D, commanding him to desist from levy and sale, under that particular execution, until the further order of the court: he stands justified because he is enjoined. One branch of the Judicial department, armed by law with the power, has arrested another, and no violence is done to the Constitution. But suppose instead of exhibiting a writ of injunction from the Superior Court, he should exhibit an act of the Legislature for- bidding him to execute, within a year, any fi. fa. issued by any court. If he be excused, on what ground? Clearly that he was enjoined. That the Judicial injunction, in the one case, was in the exercise of "a power properly attached," to the Judicial department cannot possibly be denied. Then how can it be maintained that the im- position of the legislative injunction, in the other case, would be conformable to the provision of the Constitution, I have quoted. Is it not manifest, that such legislation produces direct collision between the departments? The mandate issued by the Judicial department was in strict conformity with the laws of the State. Without repeal- ing those laws, without permanently curtailing the pow- ers of the courts, the legislative department simply inter- venes, and forbids the ministerial officer, obeying the
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GOVERNOR CHARLES J. JENKINS
Judicial mandate. It was for the express purpose of preventing such conflict, this provision was inserted in the Constitution.
There is another objection to this bill, which I cannot pass over in silence. It classifies contracts and discrimi- nates between the.classes, injuriously to one of them, or rather to the parties interested in their enforcement. Contracts made prior to the first day of June, 1865, con- stitute one class; those made subsequently, another. To the former only is the stay of execution, under it, applied. If separate judgments should be obtained in the month of January, 1867, the one founded on a contract entered into before the first day of June, 1865, and the other on a contract made after the last mentioned day, even though they were based upon considerations equally meritorious, the stay of this law would attach to the former, and not to the latter. I am utterly at a loss to conjecture upon what principles, consistent with equal justice, this discrimination is founded. Indeed it would seem that if any discriminations were made, it should be in favor of that class of creditors, a very large majority of whom have already been subjected to five of these Legislative injunctions, successively enacted, and so linked, as to compose a chain, extending over as many years. The elder creditor is tied up and the junior left untrammelled. Nay more, the judgment creditor of five or more years standing is arrested, whilst to the simple contract creditor of yesterday, the highway to full and complete compulsory performance is left open. It may be said that whenever a junior execution, not stayed by the proposed law, shall by levy and sale, cause money to be made, the older executions are not restrained from being interposed to claim it. But this can scarcely be
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intended, for in that event, the law must fail to give the promised relief. Under any circumstances, this could only occur where there were judgments of both classes, against the same debtor, and the suggestion therefore does not relieve the measure from the alleged discrimi- nation. Even in those cases the debtor would be under a strong temptation to apply his means to the satisfac- tion of the junior judgment, reserving for the senior only the annual installment, necessary to keep him in fetters, and thus, the discrimination would still operate injuri- ously.
I take no pleasure in the performance of this duty. Always reluctant to disagree with the General Assembly, I can truly say this disagreement is painful in the ex- treme. I have abundant sympathy for the suffering people of Georgia, and in the desire of the General Assembly to alleviate their sufferings. But on entering this office I took at the threshold, in presence of you all, a solemn oath to preserve, protect and defend the Con- stitution of the United States, and of the State of Geor- gia; and this I must do, as I, not as others understand those instruments. If I doubted I would give the measure the benefit of the doubt, and leave its constitutionality to the courts; but, not doubting, I must dissent as I regard my oath. Upon such subjects, men equally earn- est in search of truth, and equally upright and fair, in their habits of thought, are prone to differ. Whenever such a difference occurs, it becomes each party to extend to. the other the need of upright intention. I have done what I conceive to be my duty, and if after reconsidera- tion, which I respectfully invite, a constitutional majority of the General Assembly should adhere to the measure, I shall indulge the hope that no detriment will come to
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GOVERNOR CHARLES J. JENKINS
the State, either from its seemingly unequal practical operation, or from its imputed violation of the funda- mental law.
CHARLES J. JENKINS, Governor.
MONDAY, MARCH 12th, 1866.
The following message was transmitted to the Gen- eral Assembly, to-wit :
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA, March 12th, 1866.
TO THE GENERAL ASSEMBLY :
No bill having yet been reported to me relative to the civil status of the freedmen, and the session being near its close, I again respectfully urge that the General Assembly do not adjourn without distinct action on this subject. We here are all agreed that free persons of color are not to be admitted to the ballot box or the jury box. But it is essential to our restoration that their capacity to contract, to sue and be sued, to hold property, to testify in the courts, should be made full and complete, that in these respects they should be placed on the footing of the citizen. If we are to get rid of military rule- and of the Freedman's Bureau-if we are to have the laws administered by our own courts, I am satisfied, by information in my possession, that these things must be done.
CHARLES J. JENKINS, Governor.
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CONFEDERATE RECORDS
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MONDAY, MARCH 12th, 1866.
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(COPY) .
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
March 12th, 1866.
$20,000 .- Sixty days after date the State of Georgia will pay to George A. Cuyler, cashier at the Central Railroad Bank in Savannah, Georgia, twenty thousand dollars in United States currency, for value received, with interest from date at 7 per cent. per annum.
To secure the payment of which I have this day de- livered to the said Cuyler, seven per cent. bonds of the State of Georgia amounting to twenty-five thousand dol- lars, which he is hereby authorized to sell and apply the proceeds to the payment of this note at maturity; pro- vided, that they shall not be sold at less than ten per cent. discount.
This by authority of an ordinance of the Convention dated 3rd November, 1865.
In witness whereof I have hereunto set my hand and Seal of office, on the day and year first above written.
(Signed) CHARLES J. JENKINS, Governor of Georgia.
Countersigned :
JNO. JONES, Treasurer. L
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GOVERNOR CHARLES J. JENKINS
THURSDAY, MARCH 22d, 1866.
A CARD.
To GEORGIA CAPITALISTS :
A portion of the people of Georgia, in districts over- run by both armies during the late war, are suffering for lack of food, and unless speedily relieved must suffer still more, perhaps starve. Their more fortunate and benevolent neighbors have done much for them, but can do little more. The evidence of these facts is full and startling. The Legislature has appropriated money for their relief, but the money is not in the treasury. They have authorized the borrowing of money upon most satis- factory security, but it will require time to have the bonds and mortgage prepared and executed. And while this time runs against the sufferers, their sufferings will be terribly intensified. I am ready and anxious to act, but lack the means.
In the name of patriotism and humanity, I appeal to you to furnish them. It will be a good pecuniary invest- ment, and something more-a commendable charity. Bring forward the money on loan for 90 or 120 days, or six months or five, or thirty years, as you prefer, with seven per cent. interest. You will run no risk, and the hungry will do better.
All editors friendly to the object will please give the above a few insertions, and briefly direct attention to it.
CHARLES J. JENKINS,
Governor.
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CONFEDERATE RECORDS
MONDAY, MARCH 26th, 1866.
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
March 26th, 1866.
Ordered, That Major Campbell Wallace, of the County of Bartow, State of Georgia, be, and he is hereby, appointed Superintendent of the Western and Atlantic Railroad for the term of two years commencing from the first day of January, 1866, to enter forthwith upon the duties of such Superintendent, to fill the vacancy occa- sioned by the resignation of Col. Robert Baugh.
Further ordered, That a certified copy of this order under the Seal of this Department, be forwarded to the said Campbell Wallace as evidence of his title to assume the functions and duties and to exercise the powers by him incident to that position.
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CHARLES J. JENKINS,
Governor.
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MARCH 29th, 1866.
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
March 29th, 1866.
Ordered, That Wm. W. Clayton, of the County of Fulton, State of Georgia, be, and he is hereby, appointed
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GOVERNOR CHARLES J. JENKINS
Treasurer of the Western and Atlantic Railroad for the term of two years commencing from the first day of January, 1866, to enter forthwith upon the duties of such Treasurer.
Further ordered, That a certified copy of this order, under the Seal of this Department, be forwarded to the said Wm. W. Clayton as evidence of his title to assume the functions and duties, and to exercise the powers by him incident to that position.
CHARLES J. JENKINS,
Governor.
MONDAY, APRIL 2nd, 1866.
(COPY) EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 2nd, 1866.
$1,000.00 .- On the first day of January next, the State of Georgia will pay Samuel Clayton, or bearer, one thou- sand dollars in lawful currency of the United States, for value received, with interest from date.
This by authority of an act of the General Assembly dated 13th March, 1866.
In witness whereof I have hereunto set my hand and Seal of office, on the day and year aforesaid.
CHARLES J. JENKINS, Governor of Georgia.
Countersigned : €
JOHN JONES, Treasurer.
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. CONFEDERATE RECORDS
TUESDAY, APRIL 3rd, 1866.
(COPY) .
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EXECUTIVE DEPARTMENT, ,
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MILLEDGEVILLE, GEORGIA, .
April 3rd, 1866.
$10,000 .- Six months after date the State of Georgia will pay to Henry Brigham, Esq., President of the South- ern Insurance and Trust Company of Savannah, Geor- gia, or bearer, ten thousand dollars in lawful currency of the United States, for value received, with interest from date, at ten per cent. per annum.
This by authority of an ordinance of the Convention dated 3rd November, 1865.
Given under my hand and Seal of office, on the day and year first above written.
CHARLES J. JENKINS,
Governor of Georgia. :
Countersigned :
JOHN JONES, Treasurer.
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GOVERNOR CHARLES J. JENKINS
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EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 3rd, 1866.
$15,000 .- Six months after date the State of Georgia will pay to Henry Brigham, Esqr., President of the Merchants National Bank of Savannah, Georgia, or bearer, fifteen thousand dollars in lawful currency of the United States, for value received, with interest from date at ten per cent. per annum. This by authority of an ordinance of the Convention dated 3rd November, 1865.
Given under my hand and Seal of office, on the day and year first above written.
CHARLES J. JENKINS,
Governor.
Countersigned :
JNO. JONES, Treasurer.
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA,
March 9th, 1866.
$20,000 .- After date the State of Georgia will pay to J. C. Plant, Esqr., President of the First National Bank of Macon, or bearer, twenty thousand dollars in lawful currency of the United States, for value received, with interest from date at 7 per cent. per annum.
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CONFEDERATE RECORDS
This by authority of an ordinance of the Convention dated 3rd November, 1865.
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In witness whereof I have hereunto set my sig- nature and Seal of office, on the day and year aforesaid.
CHARLES J. JENKINS, Governor of Georgia.
Countersigned :
JNO. JONES, Treasurer.
SATURDAY, APRIL 14th, 1866.
EXECUTIVE DEPARTMENT, MILLEDGEVILLE, GEORGIA,
April 14th, 1866.
Ordered, That Ira H. Taylor, of the County of Burke, State of Georgia, be, and he is hereby, appointed Auditor of the Western and Atlantic Railroad for the term of two years, commencing from the first day of January, 1866, to enter forthwith upon the duties of such Auditor.
Further ordered, That a certified copy of this order, under the Seal of this Department, be forwarded to the said Ira H. Taylor as evidence of his title to assume the functions and duties, and to exercise the powers to him incident to that position.
CHARLES J. JENKINS,
Governor.
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GOVERNOR CHARLES J. JENKINS
SATURDAY, APRIL 14th, 1866.
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PROCLAMATION.
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 14th, 1866.
Public attention has doubtless been given to Circular No. 4, issued on the 6th inst. by Brigadier General Davis Tillson, A. A. Comr. Bureau Ref. Fr'n. and Abandoned Lands, and approved by Brevet Maj .- Gen. J. M. Bran- nan, commanding Department of Georgia, and to Gen- eral Orders No. 17 of Brevet Maj .- Gen. Brannan of the same date.
By these orders a large jurisdiction in civil and crimi- nal cases whereto freedmen alone or freedmen and white persons may be parties heretofore denied to the State courts, is yielded to them.
As will appear in the sequel, this does not amount to positive and final withdrawal of military authority. It is unquestionably a highly satisfactory advance in the . process of restoration to our former political status, which may be followed by a further advance in the same direction, or by a retrograde movement, as circumstances may indicate. It has been induced mainly by the legis- lation of the General Assembly relative to the status of the freedman. It will not be lost, and may be speedily pushed further if the judiciary, in courts of enquiry and in courts of record, the bench and the jury box, give effect to the letter and spirit of the laws by them enacted. In the full assurance that my fellow-citizens, official and
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CONFEDERATE RECORDS
unofficial, who may be called upon to participate in the administration of justice, will hold the scales in perfect equilibrium as between individuals and classes.
I congratulate the people of Georgia upon this earnest of coming restoration of interior self-government. In our condition neither conscious rectitude of intention nor noisy and unbecoming professions of it will avail aught. Practical demonstrations, which incredulity itself cannot gainsay, and nothing else will work out our redemption.
It is of great importance to us that none mistake the effect of the President's recent peace proclamation, and of the orders above referred to. Our condition is cer- tainly anomalous, and mischievous errors might result from theoretical speculation upon those documents. I therefore state as the result of official intercourse and of careful examination of previous orders and circulars, which are only modified, not withdrawn:
1st. That the agents in the several counties of the . Freedman's Bureau still have jurisdiction in all cases "between freedmen and others when the sum involved does not exceed fifty dollars, exclusive of interest. They may also take cognizance of and try all offences com- mitted by freed people or against them, provided the punishment does not exceed a fine of fifty dollars or thirty days imprisonment at hard labor." They are also still charged with the duty of examining and approving or disapproving labor contracts, and of assisting and protecting, by legal means, freedmen requiring such aid. Trials by strictly military commissions are dispensed with except where the accused is a soldier, or the offence charged is one against the Federal Government.
2ndly. I have high authority for saying that "the
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GOVERNOR CHARLES J. JENKINS
President's proclamation does not remove martial law or operate in any way upon the Freedman's Bureau in the exercise of its legitimate jurisdiction," though "it is not deemed expedient to resort to military tribunals in any case where justice can be attained through the me- dium of civil authority." My impression is, that in case of military arrest by orders from Headquarters, Depart- ment of Georgia, interference of State Judges by habeas corpus will not be permitted. Such orders I believe will be rarely if ever issued, and I trust conflict will be avoided.
Whilst therefore, by thus communicating reliable in- formation, I seek to guard the whole people against erroneous impressions regarding the extent to which the Federal military authority is relaxed, I respectfully call upon the civil authorities to assume and to exercise, in perfect fairness and justice, the jurisdiction clearly restored to them. Calmly and patiently pursuing our now ascending course, let our acts illustrate our title to fuller confidence and higher rights. Faithful observance of the Federal Constitution and impartial administra- tion of the law will best vindicate intentions honestly entertained and distinctly expressed, but cautiously ac- credited.
CHARLES J. JENKINS,
Governor.
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CONFEDERATE RECORDS
TUESDAY, APRIL 17th, 1866.
EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 17th, 1866.
PROCLAMATION.
Whereas, the Act of the General Assembly, entitled "An Act to levy and collect a tax for the support of the government for the year 1866, and for other purposes," imposes a tax of twenty cents on every gallon of brandy, gin, whiskey or rum, sold in this State, returns of sales to be made and the tax paid quarterly beginning with the first of April.
And Whereas, said Act was not passed until the 3rd March, 1866, and could not be generally known before the expiration of the first quarter, whereby great hard- ship would befall persons selling. in ignorance of such impending tax, and especially those selling on commission for non-residents.
. Now, therefore, in virtue of authority in me vested by law, I, Charles J. Jenkins, Governor of the State of Georgia, do hereby suspend the collection of the tax imposed by the 12th section of said Act upon brandy, gin, whiskey and rum for the first quarter, only, includ- ing the months of January, February and March, 1866, until the next meeting of the General Assembly.
Tax Collectors will, nevertheless, require returns for
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GOVERNOR CHARLES J. JENKINS
said first quarter, as though the collection of the tax had not been suspended.
Given under my hand and the Seal of the Execu- tive Department, the day and year above mentioned.
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CHARLES J. JENKINS,
Governor.
. EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 19th, 1866.
Believing that the object contemplated in the third section of an Act entitled "An Act for the relief of maimed indigent soldiers and officers, citizens of this State who belonged to military organizations of this State, in the State or Confederate States armies," ap- proved March 12th, 1866, will be best and most speedily accomplished by the appointment of surgeons residing near each other, that they may be readily convened, and having full confidence in the surgical skill of the persons hereinafter named,
Ordered, that Doctors L. A. Dugas, H. H. Steiner and L. D. Ford be, and they are hereby, appointed a com- mittee to execute the third section of said Act.
CHARLES J. JENKINS,
Governor.
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CONFEDERATE RECORDS
MONDAY, APRIL 23rd, 1866.
CIRCULAR. EXECUTIVE DEPARTMENT,
MILLEDGEVILLE, GEORGIA,
April 23rd, 1866.
Information has reached this Department that the managers of The Ladies' Southern Relief Fair, of Balti- more, in the exercise of an abounding and elevated charity, had caused to be shipped to Savannah, subject to my order, five hundred barrels, containing flour, meal and bacon, "for distribution among our truly poor suffer- ing white people," and that they "desire that the appro- priation should be so distributed as to afford the greatest relief to the greatest number of the really deserving poor and suffering women and children;" to effect which distribution they have also appropriated the sum of two thousand dollars: And the consignees, as well as the President of the Central and Atlantic and Gulf Railroads, having generously offered to aid the enterprise by per- sonal service, and by transportation, free of charge, (as other persons and Presidents of railroads doubtless will do), for the purpose, therefore, of distributing in Con- gressional Districts as the most eligible primary divis- ions of the State, they being organized with a view to the nearest attainable equality in population: I make and publish the following order and requests :
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