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.]