concurring.
The question raised by the record in this case, is not merely the constitutionality of a legislative Act, but the constitutional competency of the Legislature to pass any Act. The Constitution of 1868, provided that the first meeting of the General Assembly should be within ninety days after the adjournment of the Convention framing the Constitution. The first Legislature did not meet at that time. It was called together under the Reconstruction Laws of Congress, and was qualified by a Judge of the United States Court, with a Provisional Governor, and was itself a Provisional Legislature. The convocation, organization, and qualification was alien to the Constitution, neither under it, nor within its provisions.
The last session was alike a called session, invoked by Act of Congress, under military supervision and qualification, with a Provisional Governor, and could not perform the first act of a Legislature under the Constitution of 1868, to-wit: *93pass upon the qualification of its own members; but a military commission performed this function.
The Legislature, in considering their status when in session in 1870, were not limited to the Constitution of 1868, but were properly to consider the Acts and action of Congress, and when the Executive Branch, by message of July 2d, 1870, held that session to be the first under the Constitution, and the General Assembly held it, in one branch concurring with the Executive, and in the other that it was not the third, such decision upon a question of political government, growing out of the surrounding legislation of Congress, does not invoke judicial interference, by the abstract application of mere constitutional limitations.
The Supreme Court is a Court for the correction of legal, errors, and questions arising out of the formation of the State government and its relation to the Federal Union, or questions determined by the Legislature, as to whether its sessions, convened by military authority, under a Provisional Governor, were under the Constitution or under Acts of Congress, are not properly such legal errors, if errors, as invoke the judicial interference of a co-ordinate branch of the government. Under the changes of Reconstruction, by Amendatory and Supplemental Acts of Congress, Georgia presented so many political phases, and such multiform legislation, that the intention of the original Act under which the Constitution was framed, became lost in the maze of complications, and the Act of 1867 was not carried out in its covenants, but new and unknown powers were called into requisition. Courts cannot, by any rule of constitutional law, measure the rights of the one, or define the limitations of the other; and inasmuch as the political departments have solved the status of the State, and such decision violates no fundamental right, such decision should be respected by the other co-ordinate branch, or State judiciary. And for these reasons I concur in the judgment of the Court.
The Constitution of this State declares, “ no session of the *94General Assembly, after the second under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof.” Code, section 5122.
Among the fundamental articles to the Constitution it is declared, “ Legislative Acts in violation of this Constitution, or the ^Constitution of the United States, are void, and the judiciary shall so declare them.” Code, section 5107.
Section 5143 is in these words: “When the Constitution requires a vote of two-thirds of either or both Houses for the passing of an Act or resolution, the yeas and nays on the passage thereof shall be entered on the Journal.
Under these constitutional provisions, it is contended :
1. That there were three sessions of the General Assembly since the adoption of the Constitution of 1868.
2. That the last session was the third, and that it sat over forty days, and the Journal fails to show that its term was extended by a vote of two-thirds.
3. That, inasmuch as the Aet was passed organizing the District Courts after the term of forty days, it is void, being in violation of the Constitution, and that it is the duty of this Court so to declare it.
The question raised by this record is one of the highest and most vital importance; it is not, as will be seen by a glance, the constitutionality of an Aet of the Legislature we are called on to decide, but the constitutionality of the Legislature itself, its constitutional competency to pass any Act, We are not invoked merely to construe the terms of legislation, but the power of the Legislature to legislate; and this turns upon the question whether the last session of that body was or was not the third, or one “ after the second under the Constitution.” In approaching the adjudication of this subject, I have grave doubt as to the right of the Judiciary to pass upon it, for reasons I will hereafter give. But with a view to meeting the question first upon its merits, and treating it as a judicial question, we may safely *95assert the proposition laid down embraces others essential to its demonstration. Under the Constitution, section 5122, Code, it is provided that the first meeting of the General Assembly shall be within ninety days after the adjournment of the Convention, after which it shall meet annually on the second Wednesday in January, or on such other day as the General Assembly may prescribe.” Now to constitute a session under the Constitution it will not be doubted, but it must meet at the time prescribed by the Constitution, or at a time prescribed by the General Assembly. The first session did not so meet. History informs us, from the Journals of the House, that it was called together on the......day of...... by military order, and the Governor was provisional Governor only. And the very first constituent power of the General Assembly, to-wit, (Code, section 5135,) “ Each House shall be the judge of the election returns and qualification of its members,” was denied to it. That session was called together, and when convened its members were qualified by the Hon. John Erskine, Judge of the District Court of the United States. Attempting to act under the Constitution as to the provision just quoted, to-wit: adjudging the qualification of its members, and turning out some on the ground of disqualification, its own existence was afterwards, by Congress, declared to be illegal, its action ignored, and its organization perfected by laws of the United States, and not by the Constitution of 1868. The decision of the question involves the constitutionality of the laws of Congress; for it is clear that if the Legislature was subordinate to a military dictation, it cannot be held to be under a constitutional limitation; for at best it only existed by permission. It is useless to stand upon theories if facts are antagonistic to them. When Congress undertook to reconstruct the State, it began the work by a declaration that there was no civil government in Georgia; the language used was: “ Whereas no legal State governments,” etc., “now exist in the rebel States,'” ete.
*96The sixth section declares, “ That until the people of the said rebel States shall, by law, be admitted to representation to the Congress of the United States, the civil governments that exist therein shall be deemed provisional only, and shall be, in all repects, subject to the paramount authority of the United States, at any time to abolish,' modify, control and supersede the same,” etc., etc. Under this declaration, Governor Jenkins was superseded by military authority enforcing such Acts, and a gentleman, in commission as a United States officer of the army, was detailed Governor of the State. He entered upon the discharge of his duties, and the whole civil administration went into his hands. The election of members of the Convention and their meeting at Atlanta, and framing this Constitution, are facts well known ; the enfranchisement of a new element into the body politic, and their exercise of suffrage, under Congressional legislation, facts that have become patent. The ensuing election, ending with the declaration of the ratification of the Constitution, and the returns of members, was followed by the order calling them together. "When they met, in pursuance to the military chieftainship in Georgia, was it a meeting of the Legislature under the Constitution ? The Constitution did not provide for such measures, nor did it define the duty of a Provisional Governor. We may struggle in vain, to find any recognition of the officers who called them together, or the definition of their duties. This Court, in 39th Georgia, 40, held that the new Constitution went into effect on the 21st of July, and yet the body met on the 4th. If the Constitution did not take effect until the 21st, as decided by this Court, Judge Warner delivering the opinion, then it did not meet under the Constitution, and therefore it must have met under something else. And if it met under something else, it was not the first meeting of the Legislature under the Constitution. If it met under the Eeconstruction Acts of Congress, called together by virtue of the power conferred by those Acts on Major General Meade, then it cannot be *97held it met under the Constitution, except the one embraced the other, and this can only be conceived by ignoring the source of the Constitution, to-wit: the people of Georgia, and give its paternity to Congress.
Again, if the Constitution existed by permission of the military power — in other words, if the authorities then governing Georgia allowed its recognition, by permission, it was not the Constitution that was the rule, but the power behind it. Until it stood upon the will and sovereignty of the people of the State, and had an existence beyond the permission of any power, an existence inherent and unquestionable, it could not, with proper regard for the use of language, be called the Constitution of Georgia, in that broad political sense, which comprehends the dignity and sovereignty of the people. It was a written parchment, subject to a will incompatible with the constitutional will of a free people. And to talk of a General Assembly under a Constitution, whose rights to do the first constitutional act of a constitutional Legislature, to-wit: pass upon the election returns and qualifications of its own members Is denied, is the assertion of a sentiment, not the embodiment of a fact. What became of the Constitution and its guarantees,, when Congress returned to seats in its General Assembly, some thirty members, and dispersed as many to their homes ?
Thus we say, upon the merits of the question, we do not think when the Legislature decided that the last session was not the third, and overruled the ruling of the Speaker upon that subject, that it was a question of violation of the Constitution ; for in the phases of reconstruction in Georgia, the status of the State was a difficult one to solve, and not without grave doubt in the premises; the incubation was long and the travail protracted, and the decision of the Legislature on the subject, one at least, sustained by the legal development of events.
But is it a question for the Judiciary. No evil could be more offensively aggressive on the rights of the people, than *98the assumption by the Judiciary of powers not delegated to their rightful jurisdiction. To lodge, in the opinions of a few men, no matter how far removed from the passions of the hour, the rights of the people in the creation of government and decision of affairs of State, was not the intention of the people. Constitutions and laws precede the Judiciary, and we decide questions arising out of them after they are made, not before. We restrain the Legislature within the limitations set to its powers. But we may not set up our opinions as to the decision of the Legislature upon questions not purely legal. The Constitution prescribes the manner of passing laws, and the Legislature must pursue the mode prescribed. The Constitution divides powers, and the coordinate branches must stay within the prescribed limits. If this were not so, the Judiciary might declare an Act void, and the Legislature might impeach the Judiciary, as happened in Illinois, for the decision. The intention of the Constitution is to divide the powers, and let each move independently in its orbit, all revolving round the Constitusion in their appropriate sphere, like the planetary systems round the sun, and each kept in place by the central power which moves the whole in harmony.
The jurisdiction of the Judiciary is to check and balance the acts of the Legislature, to bring them within the Constitution, and hold the scales evenly in the administration of the laws enacted. But in this case, we are called on to reverse the judgment of the Legislature on the condition growing out of the reconstruction of the State. The Legislature decided its last session not to be third in the House, and in the Senate, under the Constitution of 1868, and this judgment we are called upon to say was wrong.
How, before going further, let us glance at the consequences of this decision. I am not unaware that ordinarily Courts have nothing to do with questions of public policy, or the entailment of consequences. Ho man better understands the necessity of lifting the Judiciary above the popu*99lar prejudices or sympathies than myself. But while in the language of Lord Mansfield, “We have nothing to do with consequences ,• if certain rebellions were the result, we cannot prevaricate with our consciences or our God; all we have to say is, fiat justitia mat ccelum yet with all judges, consequences must needs influence consideration. We should pause upon the enunciation of legal judgments whose effect would be to upset society, and turn loose chaos over the land. If the law is clear, we have nothing to do but annouce it. The consequences are not at our doors, and if this decision should declare void the last election for members of the General Assembly, passed after the forty days, and should bring to new life the old; whose commissions may extend until their successors are duly elected and qualified, and if this may postpone the election, under the Constitution, still, if such were to be the result, and the law is plain, it is our duty, and it would be my pleasure to discharge it. But to do so, I think consequences have something to do with invoking a more thorough consideration of all the questions arising under the facts of the case, before announcing it to be the law, and by that examination, I find involved in this decision of the Court a reversal of the judgment of the Legislature as to the status of the State under reconstruction. This embraces a political, as well as legal question, and it would be an ostentatious parade of learning to go through the decisions of Courts, excluding political questions involving the principles of government from judicial jurisdiction. The very question, made by Governor Jenkins before the Supreme Court at Washington, on the constitutionality of the Reconstruction Acts, admonishes me of the fact that these matters were, while regarded by the profession of Georgia plainly and palpably unconstitutional at the time, nevertheless political in their character, and refused a hearing at the bar of that tribunal. Our Court, by its organization, is a Court-of errors, and the original jurisdiction over this question of what session, under the Constitution, the last was, must be *100somewhere else lodged. This case comes from the Superior Court, and that tribunal, by the Constitution (Code, section .5173,) is vested with jurisdiction over all civil and criminal cases, etc. But no where can it be inferred by any legitimate line of argument, that the jurisdiction over an adjournment of the Legislature, has been conceded or granted to it. The power in all Courts to declare unconstitutional Acts void is not longer a matter of judicial controversy, but the power to review an Act of the Legislature, involving a political question — not a law — but a judgment pronounced by itself, upon its own competency to make a law, is not an apellate jurisdiction, nor is it an original jurisdiction. If it exists, it exists in the powers of the Court under the Constitution, and the power to declare Acts in violation of the Constitution void, and this is expressed to be in regard to legislative acts.
In the ease of Foster Administrator vs. Daniel, 39 Georgia, 40, this Court held that the State of Georgia, on the 21st July, 1868, had fully complied with the terms of the Reconstruction Acts of Congress, and that the Constitution went into effect upon the 21st July, 1868. But although so ■decided by the Court, as applicable to the then ease before it, it is true that the Reconstruction Acts provided that “ until the people of said rebellious States shall be by law admitted to representation in Congress, any civil government which may exist therein shall be deemed provisional only,” and we need not go through the mass of military orders interpreting and enforcing these Acts subsequent to the time stated. The purpose is not to go farther than show the doubt which still hung over the status of this State; for if the Congress of the United States, by enactment recognized a different view of our ’ condition, Congress had the power, under the Constitution of the United States, to control the question, and we need not deny the right without going farther and adjudging the Acts themselves, which is not essential or proper in this inquiry. If we establish the fact that subsequent to this decision Con*101gress again legislated upon the subject, and in effect declared the General Assembly illegally organized, and by military commission, passed upon the qualifications of its members, then the practical operation of the Constitution of 1868, if existing on the 21st July, 1868, was amended by such subsequent Congressional interference, and the conditions imposed by Congress were paramount to the Constitution of 1868, and right or wrong, were of force and exacted obedience. "When the Legislature deemed it necessary to go through the ceremony of adopting the Constitutional amendments over again, it was a political question, of which they were properly the judges; the question was not judicial, and is consistent with the view entertained by that body after-wards, relating to the term of session under the Constitution, they were then holding.
From these various sources I gather the intent of the Legislature to concur with the opinion of Congress upon the subject, with the orders of Generals Grant and Eawlins, Pope, Meade and Terry, and their constructions thereon, and the opinion of the Attorney-General; and looking to this intent with a view to arrive at a judicial conclusion, I hold that the subject of what term, under the Constitution, the Legislature then was holding, was one to be construed, not only by the Constitution of 1868, but by the Acts of Congress covering the Eeconstruction measures. And inasmuch as this department of the government decided the question in the light of all the surrounding legislation and powers, I think such decision was political in its character, and that the Court cannot justly interfere by its judgment to set it aside, and declare all its laws to be, on that ground, unconstitutional. In this connection we may add that the Executive of this State took the position in his message to the Legislature, July 2d, 1870, that “the present legislative organization, if accepted and ratified by Congress, is the first and only legal organization de jure of this Legislature and of *102the State Government established by the votes of the people under the Eeconstruction Acts.”
These two branches of the government of this State — the Executive and Legislative — have treated this question as a political one, of which Congress was the judge. And Congress having by its legislation given the fullest concurrence in this view, I am indisposed to enter upon the subject as a judicial one, inasmuch as now these questions would involve others of significant importance in the adjudication. It will, for instance, not be doubted or denied but the first Legislature was called together by virtue of a military order under the Eeconstruction Acts; equally true and undeniable is it that it was sworn by an officer of the Federal Judiciary. Equally true that it convened as a provisional Legislature under a provisional Governor. Equally true that it did not meet at the time fixed by the Constitution. Equally true that its action was permissive by the military powers. Equally true that Congress treated it as a provisional body, amenable to Congressional dictation and interference. Equally true that the session under adjudication was convened by an Act of Congress. Equally true the last session was inaugurated by military commission, sitting upon the qualification of its members. And after a full review of the anomalous condition of the State Government during the years elapsing since the war, I cannot hold that this question is one for the Judiciary to interfere with. And I therefore concur in the judgment pronounced by the Court. As to the questions raised by the record, I have no doubt, holding the Act constitutional as to the appointments made under the provisions of the Code, and now only express my concurrence in the judgment pronounced.