The Rise and Fall of the Confederate Government Volume II Part 25

"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 const.i.tuted, 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 Const.i.tution 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 Const.i.tution give to Congress any power by which it can const.i.tute 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, const.i.tuted 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 Const.i.tution 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 pa.s.sage 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 Const.i.tution, and to exercise powers and do acts unwarranted by the grants of that instrument--has apparently become incorporated as an unwritten clause of the Const.i.tution 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 Const.i.tution 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...o...b..t.

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 Const.i.tution 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 const.i.tutional 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 ill.u.s.tration: In strict observance of their inalienable rights, in abundant caution reserved, when they formed the compact or Const.i.tution--whichever the reader pleases to call it--of the United States, the Confederate States sought to withdraw from the Union they had a.s.sisted 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, a.s.sumed, under the plea of necessity, powers unwritten and unknown in the Const.i.tution, 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 G.o.d'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 const.i.tutional 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 const.i.tutional 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 const.i.tutional 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 Const.i.tution gone, ruthlessly destroyed under the tyrant's plea of "necessity," their State sovereignty made a byword, and their people absorbed in an aggregated ma.s.s, 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: Const.i.tution of the United States, Article III, section 1.]

CHAPTER x.x.xIII.

Further Attempts of the United States Government to overthrow States.--Election of Members of Congress under the Military Governor of Louisiana.--The Voters required to take an Oath to support the United States Government.--The State Law violated.--Proposition to hold a State Convention; postponed.--The President's Plan for making a Union State out of a Fragment of a Confederate State.--His Proclamation.--The Oath required.--Message.--"The War-Power our Main Reliance."--Not a Feature of the Republican Government in the Plan.--What are the True Principles?--The Declaration of Independence a.s.serts them.--Who had a Right to inst.i.tute a Government for Louisiana?--Its People only.--Under what Principles could the Government of the United States do it?--As an Invader to subjugate.--Effrontery and Wickedness of the Administration.--It enforces a Fiction.--Attempt to make Falsehood as good as Truth.-- Proclamation for an Election of State Officers.--Proclamation for a State Convention.--The Monster Crime against the Liberties of Mankind.--Proceedings in Arkansas.--Novel Method adopted to amend the State Const.i.tution.--Perversion of Republican Principles in Virginia.--Proceedings to create the State of West Virginia.--A Falsehood by Act of Congress.--Proceedings considered under Fundamental Principles.--These Acts sustained by the United States Government.--a.s.sertion of Thaddeus Stevens.--East Virginia Government.--Such Acts caused Entire Subversion of States.--Mere Fictions thus const.i.tuted.

But to resume our narration. On December 3d, in compliance with an order of the military Governor Shepley, a so-called election was held for members of the United States Congress in the first and second State districts, each composed of about half the city of New Orleans and portions of the surrounding parishes. Those who had taken the oath of allegiance were allowed to vote. In the first district, Benjamin F. Flanders received 2,370 votes, and all others 273. In the second district, Michael Hahn received 2,799 votes, and all others 2,318. These persons presented themselves at Washington, and resolutions to admit them to seats were reported by the Committee on Elections in the House of Representatives. It was urged that the military Governor had conformed in every particular to the Const.i.tution and laws of Louisiana, so that the election had every essential of a regular election in a time of most profound peace, with the exception of the fact that the proclamation for the election was issued by the military instead of the civil Governor of the State. The law required the proclamation to be issued by the civil Governor; so that, if these persons were admitted to seats after an election called by a military Governor, Congress thereby recognized as valid a military order of a so-called Executive that unceremoniously set aside a provision of the State civil law, and was anti-republican and a positive usurpation. Again, all the departments of the United States Government had acted on the theory that the Confederate States were in a state of insurrection, and that the Union was unbroken; under this theory, they could come back to the Union only with all the laws unimpaired which they themselves had made for their own government. Congress was as much bound to uphold the laws of Louisiana, in all their extent and in all their parts, as it was to uphold the laws of New York, or any other State, whose civil policy had not been disturbed. Both those persons, however, were admitted to seats--yeas, 92; nays, 44.

The work of const.i.tuting the State of Louisiana out of the small portion of her population and of her territory held by the forces of the United States still went on. The proposition now was to hold a so-called State Convention and frame a new Const.i.tution, but its advocates were so few that nothing was accomplished during the year 1863. The object of the military power was to secure such civil authority as to enforce the abolition of slavery; and, until the way was clear to that result, every method of organization was held in abeyance.

Meanwhile, on December 8, 1863, the President of the United States issued a proclamation which contained his plan for making a Union State out of a fragment of a Confederate State, and also granting an amnesty to the general ma.s.s of the people on taking an oath of allegiance. His plan was in these words:

"And I do further proclaim, declare, and make known that, whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the Presidential election of 1860, each having taken the following oath and not having since violated it, and being a qualified voter by the election laws of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall be republican, and in nowise contravening said oath, such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the const.i.tutional provision which declares that The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and, on application of the Legislature or the Executive (when the Legislature can not be convened), against domestic violence."

The oath required to be taken was as follows:

"I, ----- -----, do solemnly swear, in presence of Almighty G.o.d, that I will henceforth support, protect, and defend the Const.i.tution of the United States and the Union of the States thereunder; and that I will in like manner abide by and faithfully support all acts of Congress, pa.s.sed during the existing rebellion, with reference to slaves, so long and so far as not repealed, modified, or held void by Congress, or by decision of the Supreme Court, and that I will, in like manner, abide by and faithfully support all proclamations of the President, made during the existing rebellion, having reference to slaves, so long and so far as not modified or declared void by decision of the Supreme Court. So help me G.o.d!"

In a message to Congress, of the same date with the preceding proclamation, the President of the United States, after explaining the objects of the proclamation, says:

"In the midst of other cares, however important, we must not lose sight of the fact that the war-power is still our main reliance. To that power alone can we look, for a time, to give confidence to the people in the contested regions that the insurgent power will not again overrun them."

The intelligent reader will observe that this plan of the President of the United States to restore States to the Union, to occupy the places of those which he had been attempting to destroy, does not contain a single feature to secure a republican form of government, nor a single provision authorized by the Const.i.tution of the United States. With his usurped war-power to sustain him in the work of destruction, he found it easy to destroy; but he was powerless to create or to restore. In the former case, he had gone imperiously forward, trampling under foot every American political principle, and breaking through every const.i.tutional limitation. In the latter case, he could not advance one step without recognizing sound political principles and complying with their dictates. On each foundation he must construct, or his work would be like the house founded on the sand.

It will now be shown what the true principles are, and then that the President of the United States perverted them, misstated them, and sought to reach his ends by groundless fabrications--as if he would enforce a fiction or establish a fallacy to be as good as truth. It might be still farther shown, if it had not already become self-evident, that this method was pursued with such a perversity and wickedness as to render it a characteristic feature of that war administration on whose skirts is the blood of more than a million of human beings.

The whole science of a republican government is to be found in this sentence of the Declaration of Independence, made by the representatives of the United States of America, in Congress a.s.sembled, on July 4, 1776. It says:

"That, to secure these rights [certain unalienable rights], governments are inst.i.tuted among men--deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to inst.i.tute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

Thus it will be seen that civil and political sovereignty was held to be implanted by our Creator in the individual, and no human government has any original, inherent, just sovereignty whatever, and no acquired sovereignty either, beyond that which may be granted to it by the individuals as "most likely to effect their safety and happiness." "Deriving their just powers from the consent of the governed," says the Declaration of Independence. All other powers than those thus derived are not "just powers." Any government exercising powers "not just" has no right to survive. "It is the right of the people to alter or abolish it," says the Declaration of Independence, "and to inst.i.tute a new government."

Who, then, had a right to "inst.i.tute" a republican government for Louisiana? No human beings whatever but the people of Louisiana; not the strangers, not the slaves, but the manhood that knew its rights and dared to maintain them. Under what principles, then, could a citizen of Ma.s.sachusetts, whether clothed in regimentals or a civilian's dress, come into Louisiana and attempt to set up a State government? Under no principles, but only by the power of the invader and the usurper. If the true principles of a republican government had prevailed and could have been enforced when Major-General Butler appeared at New Orleans, he would have been hanged on the first lamp-post, and his successor, Major-General Banks, would have been hanged on the second.

Under what principles, then, could the Government of the United States appear in Louisiana and attempt to inst.i.tute a State government? As has been said above, it was the act of an invader and a usurper. Yet it proposed to "inst.i.tute" a republican State government. The absurdity of such intention is too manifest to need argument. How could an invader attempt to "inst.i.tute" a republican State government? an act which can be done only by the free and unconstrained action of the people themselves. It has been charged that this and every similar act of the President of the United States was in violation of his duty to maintain and observe the requirements and restrictions of the Const.i.tution, and to uphold in each State a republican form of government. To specify, the following is offered as an example. He did "proclaim, declare, and make known--

that, whenever any number of persons, not less than one tenth of the number of voters at the last Presidential election, shall reestablish a State government, which shall be republican [!] and in no wise contravening said oath, such shall be recognized as the true government of the State."

One tenth of the voters can not establish a republican State government, which requires the consent of the people of the State to make its powers just, as has been shown above. Therefore, such a government had not one element of republicanism in it. But what is astonishingly remarkable is the stultification of requiring the one tenth of the people to "reestablish a State government, which shall be republican and in no wise contravening said oath." Either he did not know how a republican State government was "inst.i.tuted," or, if he knew, then he was a partic.i.p.ant in that perversity and wickedness, which was above charged to be the characteristic of his war Administration.

It will now be shown how he sought "to enforce a fiction or establish a fallacy to be as good as truth." Of the government thus established by one tenth of the voters, he says:

"Such shall be recognized as the true government of the State, and the State shall receive thereunder the benefits of the const.i.tutional provision which declares that 'the United States shall guarantee to every State in this Union a republican form of government.'"

It is proper here to inquire who and what was the tenth to whom this power to rule the State was to be given. It will be seen, by reference to the proclamation, that each voter of the one tenth, in order to be qualified, is required to take an oath with certain promises in it, which are prescribed by an outside or foreign authority. This condition of itself is fatal to a republican State government, that "derives its just powers from the consent of the governed." Free consent--not cheerful consent, but unconstrained and unconditioned consent--is required that "just powers" may be derived from it. In this instance, the invader prescribes the requisite qualifications of the voter, and makes it a condition that the government established shall "in no wise contravene" certain stipulations expressed in the oath taken to give the qualification. A State government thus formed derives its powers from the consent of the invader, and not "from the consent of the governed." It has no "just powers" whatever. It is a groundless fabrication. Yet the President of the United States declared, "The State shall receive thereunder the benefits of the const.i.tutional provision which declares that 'the United States shall guarantee to every State in this Union a republican form of government.'" Is not this an attempt, while pretending to establish, to destroy true republicanism?

Now, let the reader bear in mind that these remarks relate to Louisiana alone, of which more remains to be told; and that there were eleven States that withdrew from the Union, whose restoration was to be effected on this rotten system, in addition to several const.i.tutional amendments, the adoption of which was to be effected and secured by the votes of these groundless fabrications, in which a fiction was to be considered as good as the truth. Having attained all these facts which are yet to be stated, he may begin to form some estimate of the remnants of the Const.i.tution, and of the probable existence of any true union of the States.

To proceed with the narration. Under the above-mentioned proclamation of the President of the United States, Major-General Banks issued at New Orleans, on January 11, 1864, a proclamation for an election of State officers, and for members of a State Const.i.tutional Convention.

The State officers, when elected, were to const.i.tute, as the proclamation said, "the civil government of the State under the Const.i.tution and laws of Louisiana, except so much of the said Const.i.tution and laws as recognize, regulate, or relate to slavery, which, being inconsistent with the present condition of public affairs, and plainly inapplicable to any cla.s.s of persons now existing within its limits, must be suspended." The number of votes given for State officers was 10,270. The population of the State in 1860 was 708,902. The so-called Government was inaugurated on March 4th, and on March 11th he was invested with the powers. .h.i.therto exercised by the military Governor for the President of the United States. On the same day Major-General Banks issued an order relative to the election of delegates to a so-called State Convention. The most important provisions of it defined the qualifications of voters.

The delegates were elected entirely within the army lines of the forces of the United States. The so-called Convention a.s.sembled and adopted a so-called Const.i.tution, declaring "instantaneous, universal, uncompensated, unconditional emanc.i.p.ation of slaves." The meager vote on the Const.i.tution was, for its adoption, 6,836; for its rejection, 1,566. The vote of New Orleans was, yeas 4,664, nays 789.

This state of affairs continued after the close of the war. Violent disputes arose as to the validity of the so-called Const.i.tution. The so-called Legislature elected under it adopted Article XIII as an amendment to the Const.i.tution of the United States, prohibiting the existence of slavery in the United States.

It will be seen from these facts that the State of Louisiana was not a republican State inst.i.tuted by the consent of the governed; that its Legislature was an unconst.i.tutional body, without any "just powers," and that the vote which it gave for the amendment of the Const.i.tution of the United States was no vote at all; for it was given by a body that had no authority to give it, because it had no "just powers" whatever. Yet this vote was counted among those necessary to secure the pa.s.sage of the const.i.tutional amendment. Was this an attempt to enforce a fiction or to establish the truth? Such are the deeds which go to make up the record of crime against the liberties of mankind.

The proceedings in Arkansas to "inst.i.tute" a republican State government were inaugurated by an order from the President of the United States to Major-General Steele, commanding the United States forces in Arkansas. At this time the regular government of the State, established by the consent of the people, was in fall operation outside the lines of the United States army. The military order of the President, dated January 20, 1864, said:

"Sundry citizens of the State of Arkansas pet.i.tioned me that an election may be held in that State, in which to elect a Governor; that it be a.s.sumed at that election, and thenceforward, that the Const.i.tution and laws of the State, as before the rebellion, are in full force, except that the Const.i.tution is so modified as to declare that there shall be neither slavery nor involuntary servitude," etc.

The order then directs the election to be held for State officers, prescribes the qualifications of voters and the oath to be taken, and directs the General to administer to the officers thus chosen an oath to support the Const.i.tution of the United States, and the "modified Const.i.tution of the State of Arkansas," when they shall be declared qualified and empowered immediately to enter upon the duties of their offices.

The reader can scarcely fail to notice the novel method here adopted to modify or amend the State Const.i.tution. It should be called the process by "a.s.sumption"--that is, a.s.sume it to be modified, and it is so modified. Then the President orders the officers-elect to be required to swear, on their oath, to support "the modified Const.i.tution of the State of Arkansas." Now, unless the Const.i.tution was thus modified by a.s.suming it to be modified, these State officers were required by oath to support that which did not exist. But it was not so modified. No Const.i.tution or other instrument in the world containing a grant of powers can be modified by a.s.sumption, unless it be the Const.i.tution of the United States, as shown by recent experience. Yet the chief object for which these officers were elected and qualified was to carry out these so-called modifications of the State Const.i.tution. This adds another to the deeds of darkness done in the name of republicanism.

Meantime some persons in the northern part of Arkansas, acting under the proclamation of December 8, 1863, got together a so-called State Convention on January 8, 1864, and adopted a revised Const.i.tution, containing the slavery prohibition, etc. This was ordered to be submitted to a popular vote, and at the same time State officers were to be elected. President Lincoln acceded to these proceedings after they had been placed under the direction of the military commander, General Steele. The election was held, the Const.i.tution received twelve thousand votes, and the State officers were declared to be elected. Then Arkansas came forth a so-called republican State, "inst.i.tuted" by military authority, and, of course, received the benefit of the const.i.tutional provision, which declares that "the United States shall guarantee to every State in this Union a republican form of government." It should be added that Arkansas, thus "inst.i.tuted" a State, was regarded by the Government of the United States as competent to give as valid a vote as New York, Ma.s.sachusetts, or any other Northern State, for the ratification of Article XIII, as an amendment to the Const.i.tution of the United States, prohibiting the existence of slavery in the United States.

The vote was thus given; it was counted, and served to make up the exact number deemed by the managers to be necessary. Thus was fraud and falsehood triumphant over popular rights and fundamental law.