CHAPTER XXXII.

Attempts of the United States Government to overthrow States.--

Military Governor of Tennessee appointed.--Object.--Arrests and

Imprisonments.--Measures attempted.--Oath required of Voters.--A

Convention to amend the State Constitution.--Results.--Attempt in

Louisiana.--Martial Law.--Barbarities inflicted.--Invitation of

Plantations.--Order of General Butler, No. 28.--Execution of

Mumford.--Judicial System set up.--Civil Affairs to be administered

by Military Authority.--Order of President Lincoln for a Provisional

Court.--A Military Court sustained by the Army.--Words of the

Constitution.--"Necessity," the reason given for the Power to create

the Court.--This Doctrine fatal to the Constitution; involves its

Subversion.--Cause of our Withdrawal from the Union.--Fundamental

Principles unchanged by Force.--The Contest is not over; the Strife

not ended.--When the War closed, who were the Victors?--Let the

Verdict of Mankind decide.

On the capture of Nashville, on February 25, 1862, Andrew Johnson was

made military Governor of Tennessee, with the rank of brigadier-general,

and immediately entered on the duties of his office. This step was taken

by the President of the United States under the pretense of executing

that provision of the Constitution which is in these words:

"The United States shall guarantee to every State in this Union a

republican form of government."

The administration was conducted according to the will and pleasure

of the Governor, which was the supreme law. Public officers were

required to take an oath of allegiance to the United States

Government, and upon refusal were expelled from office.

Newspaper-offices were closed, and their publication suppressed.

Subsequently the offices were sold out under the provisions of the

confiscation act. All persons using "treasonable and seditious"

language were arrested and required to take the oath of allegiance to

the Government of the United States, and give bonds for the future,

or to go into exile. Clergymen, upon their refusal to take the oath,

were confined in the prisons until they could be sent away.

School-teachers and editors and finally large numbers of private

citizens were arrested and held until they took the oath. Conflicts

became frequent in the adjacent country. Murders and the violent

destruction of property ensued.

On October 21, 1862, an order for an election of members of the

United States Congress in the ninth and tenth State districts was

issued. Every voter was required to give satisfactory evidence of

"loyalty" to the Northern Government. Two persons were chosen and

admitted to seats in that body.

That portion of the State in the possession of the forces of the

United States continued without change, under the authority of the

military Governor, until the beginning of 1864. Measures were then

commenced by the Governor for an organization of a State government

in sympathy with the Government of the United States. These measures

were subsequently known as the "process for State reconstruction."

The Governor issued his proclamation for an election of county

officers on March 5th, to be held in the various counties of the

State whenever it was practicable. "It is not expected," says the

Governor, "that the enemies of the United States will propose to

vote, nor is it intended that they be permitted to vote or hold

office." In addition to the possession of the usual qualifications,

the voter was required to take the following oath:

"I solemnly swear that I will henceforth support the Constitution of

the United States, and defend it against the assaults of all its

enemies; that I will hereafter be, and conduct myself as, a true and

faithful citizen of the United States, freely and voluntarily

claiming to be subject to all the duties and obligations, and

entitled to all the rights and privileges, of such citizenship; that

I ardently desire the suppression of the present insurrection and

rebellion against the Government of the United States, the success of

its armies, and the defeat of all those who oppose them; and that the

Constitution of the United States, and all laws and proclamations

made in pursuance thereof, may be speedily and permanently

established and enforced over all the people, States, and Territories

thereof; and, further, that I will hereafter aid and assist all loyal

people in the accomplishment of these results."

Thus to invoke the Constitution was like Satan quoting Scripture. The

election was a failure, and all further efforts at reconstruction

were for a time suspended. An attempt was made at the end of 1864 to

obtain a so-called convention to amend the State Constitution, and a

body was assembled which, without any regular authority, adopted

amendments. These were submitted to the voters on February 22, 1865,

and declared to be ratified by a vote of twenty-five thousand, in a

State where the vote, in 1860, was one hundred and forty-five

thousand. Slavery was abolished, other changes made, so-called State

officers elected, and this body of voters was proclaimed as the

reconstructed State of Tennessee, and one of the United States. Such

was the method adopted in Tennessee to execute the provision of the

Constitution which says:

"The United States shall guarantee to every State in this Union a

republican form of government."

The next attempt to guarantee "a republican form of government" to a

State was commenced in Louisiana by the military occupation of New

Orleans, on May 1, 1862. The United States forces were under the

command of Major-General Benjamin F. Butler. Martial law was

declared, and Brigadier-General George F. Shepley was appointed

military Governor of the State. It is unnecessary to relate in detail

the hostile actions which were committed, as they had no resemblance

to such warfare as is alone permissible by the rules of international

law or the usages of civilization. Some examples taken from

contemporaneous publications of temperate tone, will suffice.

Peaceful and aged citizens, unresisting captives, and noncombatants,

were confined at hard labor with chains attached to their limbs, and

held in dungeons and fortresses; others were subjected to a like

degrading punishment for selling medicine to the sick soldiers of the

Confederacy. The soldiers of the invading force were incited and

encouraged by general orders to insult and outrage the wives and

mothers and sisters of the citizens; and helpless women were torn

from their homes and subjected to solitary confinement, some in

fortresses and prisons-and one, especially, on an island of barren

sand, under a tropical sun--and were fed with loathsome rations and

exposed to vile insults. Prisoners of war, who surrendered to the

naval forces of the United States on the agreement that they should

be released on parole, were seized and kept in close confinement.

Repeated pretexts were sought or invented for plundering the

inhabitants of the captured city, by fines levied and collected under

threat of imprisonment at hard labor with ball and chain. The entire

population were forced to elect between starvation by the

confiscation of all their property and taking an oath against their

conscience to bear allegiance to the invader. Egress from the city

was refused to those whose fortitude stood the test, and even to lone

and aged women and to helpless children; and, after being ejected

from their houses and robbed of their property, they were left to

starve in the streets or subsist on charity. The slaves were driven

from the plantations in the neighborhood of New Orleans, until their

owners consented to share their crops with the commanding General,

his brother, and other officers. When such consent had been extorted,

the slaves were restored to the plantations and compelled to work

under the bayonets of a guard of United States soldiers. Where that

partnership was refused, armed expeditions were sent to the

plantations to rob them of everything that could be removed; and even

slaves too aged and infirm for work were, in spite of their

entreaties, forced from the homes provided by their owners, and

driven to wander helpless on the highway. By an order (No. 91), the

entire property in that part of Louisiana west of the Mississippi

River was sequestrated for confiscation, and officers were assigned

to the duty, with orders to gather up and collect the personal

property, and turn over to the proper officers, upon their receipts,

such of it as might be required for the use of the United States

army; and to bring the remainder to New Orleans, and cause it to be

sold at public auction to the highest bidders. This was an order

which, if it had been executed, would have condemned to punishment,

by starvation, at least a quarter of a million of persons, of all

ages, sexes, and conditions. The African slaves, also, were not only

incited to insurrection by every license and encouragement, but

numbers of them were armed for a servile war, which in its nature, as

exemplified in other lands, far exceeds the horrors and merciless

atrocities of savages. In many instances the officers were active and

zealous agents in the commission of these crimes, and no instance was

known of the refusal of any one of them to participate in the

outrages.

The order of Major-General Butler, to which reference is made above,

was as follows:

"HEADQUARTERS, DEPARTMENT OF THE GULF, NEW ORLEANS.

"As officers and soldiers of the United States have been subject to

repeated insults from women, calling themselves ladies, of New

Orleans, in return for the most scrupulous non-interference and

courtesy on our part, it is ordered hereafter, when any female shall,

by mere gesture or movement, insult, or show contempt for any

officers or soldiers of the United States, she shall be regarded and

held liable to be treated as a woman about town plying her vocation.

"By command of Major-General BUTLER."

This order was issued on May 15, 1862, and known as General Order No.

28.

Another example was the cold-blooded execution of William B. Mumford

on June 7th. He was an unresisting and noncombatant captive, and

there was no offense ever alleged to have been committed by him

subsequent to the date of the capture of the city. He was charged

with aiding and abetting certain persons in hauling down a United

States flag hoisted on the mint, which was left there by a boat's

crew on the morning of April 26th, and five days before the military

occupation of the city. He was tried before a military commission,

sentenced, and afterward hanged.

On December 15, 1862, Major-General N. P. Banks took command of the

military forces, and Major-General Butler retired. The military

Governor, early in August, had attempted to set on foot a judicial

system for the city and State. For this purpose he appointed judges

to two of the district courts, of which the judges were absent, and

authorized a third, who held a commission dated anterior to 1861, to

resume the sessions. This was an establishment of three new courts,

with the jurisdiction and powers pertaining to the courts that

previously bore their names, by a military officer representing the

Executive of the United States. These were the only courts within the

territory of the State held by the United States forces which claimed

to have civil jurisdiction. But this jurisdiction was limited to

citizens of the parish of Orleans as against defendants residing in

the State. As to other residents of the State, outside the parish of

Orleans, there was no court in which they could be sued. In this

condition several parishes were held by the United States forces.

It was therefore necessary to take another step in order to enable

the military power to administer civil affairs. This involved, as

every reader must perceive, a complete subversion of the fundamental

principles of social organization. According to this advanced step,

the military power, instituted by an organization of its own, creates

for itself a new nature, fixes at will its rules and modes of action,

and determines the limits of its power. It absorbs by force the civil

functions, with absolute disregard of the fundamental principle that

the military shall be subject to the civil authority.

This attempt to administer civil affairs on the basis of military

authority involved, as has been said, the subversion of fundamental

principles. The military power may remove obstacles to the exercise

of the civil authority; but, when these are removed, it can not enter

the forum, put on the toga, and sit in judgment upon civil affairs,

any more than the hawk becomes the dove by assuming her plumage.

However, the next step was taken. It consisted in the publication of

the following order by the President of the United States:

"EXECUTIVE MANSION, WASHINGTON, _October 20, 1862._

"The insurrection which has for some time prevailed in several of the

States of this Union, including Louisiana, having temporarily

subverted and swept away the civil institutions of that State,

including the judiciary and the judicial authorities of the Union, so

that it has become necessary to hold the State in military

occupation; and it being indispensably necessary that there shall be

some judicial tribunal existing there capable of administering

justice, I have therefore thought it proper to appoint, and I do

hereby constitute a provisional court, which shall be a court of

record for the State of Louisiana; and I do hereby appoint Charles A.

Peabody, of New York, to be a provisional judge to hold said court,

with authority to hear, try, and determine all causes civil and

criminal, including causes in law, equity, revenue, and admiralty,

and particularly with all such powers and jurisdiction as belong to

the District and Circuit Courts of the United States, conforming his

proceedings, so far as possible, to the course of proceedings and

practice which has been customary in the courts of the United States

and Louisiana--his judgment to be final and conclusive. And I do

hereby authorize and empower the said judge to make and establish

such rules and regulations as may be necessary for the exercise of

his jurisdiction, and to appoint a prosecuting attorney, marshal, and

clerk of the said court, who shall perform the functions of attorney,

marshal, and clerk according to such proceedings and practice as

before mentioned, and such rules and regulations as may be made and

established by said judge. These appointments are to continue during

the pleasure of the President, not extending beyond the military

occupation of the city of New Orleans, or the restoration of the

civil authority in that city and in the State of Louisiana. These

officers shall be paid out of the contingent fund of the War

Department, and compensation shall be as follows.

"By the President: ABRAHAM LINCOLN.

"W. H. SEWARD, _Secretary of State._"

This so-called court, as its judge said, "was always governed by the

rules and principles of law, adhering to all the rules and forms of

civil tribunals, and avoiding everything like a military

administration of justice. In criminal matters it summoned a grand

jury, and submitted to it all charges for examination." Yet, when its

judgments and mandates were to be executed, that execution could come

only from the same power by which the court was constituted, and that

was the military power of the United States holding the country in

military occupation. Therefore, to this end the military and naval

forces were pledged. Hence it was the military power, as has been

said, administering civil affairs.

The Constitution of the United States says:

"The judicial power of the United States shall be vested in one

Supreme Court, and in such inferior courts as the Congress may from

time to time ordain and establish," [61]

This provisional court was neither ordained nor established by

Congress; it had not, therefore, vested in it any of the judicial

power of the United States. Neither does the Constitution give to

Congress any power by which it can constitute an independent State

court within the limits of any State in the Union, as Louisiana was

said to be.

This provisional court, therefore, was a mere instrument of martial

law, constituted by the Commander-in-Chief of the United States

forces, not for the usual purposes which justify the establishment of

such courts, but to enter the domain of civil affairs and administer

justice between man and man in the ordinary transactions of peaceful

life. The ministers of martial law are only the representatives of

the conqueror, and they sit in his seat of authority to relieve him

from the burden of excessive duties, and to administer justice to

offenders against his authority and the social welfare, during his

presence. On such grounds the existence of such courts is justified;

but, for the establishment of a court like this provisional one, no

legitimate authority is to be found either in the Constitution of the

United States or outside of it, "_Inter arma silent leges_" is a

maxim nearly two thousand years old; it means that, under the

exercise of military power, the civil administration ceases.

When called upon to state any just grounds for such a measure, the

invader has usually replied that he had, _ex necessitate rei_, the

right to establish such a tribunal. Thus said the Commander-in-Chief

of the United States, and Congress acquiesced--indeed, leading the

way, it had urged the same plea to justify the passage of its

confiscation act. The judiciary has observed the silence of

acquiescence. Thus the doctrine of necessity--the rule that, in the

administration of affairs, both military and civil, the necessity of

the case may and does afford ample authority and power to subvert or

to suspend the provisions of the Constitution, and to exercise powers

and do acts unwarranted by the grants of that instrument--has

apparently become incorporated as an unwritten clause of the

Constitution of the United States.

What, then, is this necessity? Its definition would require an

explanation, from the persons who act under it, of the objects for

which, in every instance, they act. Suffice it to say that the

political wisdom of mankind has consecrated this truth as a

fundamental maxim, that no man can be trusted with the exercise of

power and be, at the same time, the final judge of the limits within

which that power may be exercised. It has fortified this with other

maxims, such as, "Necessity is the plea of despotism"; "Necessity

knows no law." The fathers of the Constitution of the United States

sought to limit every grant of power so exactly that it should

observe its bounds as invariably as a planetary body does its orbit.

Yet within the first hundred years of its existence all these limits

have been disregarded, and the people have silently accepted the plea

of necessity.

It must be manifest to every one that there has been a fatal

subversion of the Constitution of the United States. In estimating

the results of the war, this is one of the most deplorable; because

it is self-evident that, when a constitutional Government once

oversteps the limits fixed for the exercise of its powers, there is

nothing beyond to check its further aggression, no place where it

will voluntarily halt until it reaches the subjugation of all who

resist the usurpation. This was the sole issue involved in the

conflict of the United States Government with the Confederate States;

and every other issue, whether pretended or real, partook of its

nature, and was subordinate to this one. Let us repeat an

illustration: In strict observance of their inalienable rights, in

abundant caution reserved, when they formed the compact or

Constitution--whichever the reader pleases to call it--of the

United States, the Confederate States sought to withdraw from the

Union they had assisted to create, and to form a new and independent

one among themselves. Then the Government of the United States broke

through all the limits fixed for the exercise of the powers with

which it had been endowed, and, to accomplish its own will, assumed,

under the plea of necessity, powers unwritten and unknown in the

Constitution, that it might thereby proceed to the extremity of

subjugation. Thus it will be perceived that the question still lives.

Although the Confederate armies may have left the field, although the

citizen soldiers may have retired to the pursuits of peaceful life,

although the Confederate States may have renounced their new Union,

they have proved their indestructibility by resuming their former

places in the old one, where, by the organic law, they could only be

admitted as republican, equal, and sovereign States of the Union.

And, although the Confederacy as an organization may have ceased to

exist as unquestionably as though it had never been formed, the

fundamental principles, the eternal truths, uttered when our colonies

in 1776 declared their independence, on which the Confederation of

1781 and the Union of 1788 were formed, and which animated and guided

in the organization of the Confederacy of 1861, yet live, and will

survive, however crushed they may be by despotic force, however deep

they may be buried under the debris of crumbling States, however they

may be disavowed by the time-serving and the fainthearted; yet I

believe they have the eternity of truth, and that in God's appointed

time and place they will prevail.

The contest is not over, the strife is not ended. It has only entered

on a new and enlarged arena. The champions of constitutional liberty

must spring to the struggle, like the armed men from the seminated

dragon's teeth, until the Government of the United States is brought

back to its constitutional limits, and the tyrant's plea of

"necessity" is bound in chains strong as adamant:

"For Freedom's battle once begun,

Bequeathed by bleeding sire to son,

Though baffled oft, it ever won."

When the war closed, who were the victors? Perhaps it is too soon to

answer that question. Nevertheless, every day, as time rolls on, we

look with increasing pride upon the struggle our people made for

constitutional liberty. The war was one in which fundamental

principles were involved; and, as force decides no truth, hence the

issue is still undetermined, as has been already shown. We have laid

aside our swords; we have ceased our hostility; we have conceded the

physical strength of the Northern States. But the question still

lives, and all nations and peoples that adopt a confederated agent of

government will become champions of our cause. While contemplating

the Northern States--with their Federal Constitution gone,

ruthlessly destroyed under the tyrant's plea of "necessity," their

State sovereignty made a byword, and their people absorbed in an

aggregated mass, no longer, as their fathers left them, protected by

reserved rights against usurpation--the question naturally arises:

On which side was the victory? Let the verdict of mankind decide.

[Footnote 61: Constitution of the United States, Article III, section 1.]

The Rise and Fall of the Confederate Government, Volume 2 · 第 19 / 46 章