Jefferson Davis, The Rise and Fall of the Confederate Government

Chapter 32:

• Attempts of the United States government to overthrow States
-- military governor of Tennessee appointed -- arrests and Imprisonments -- measures attempted -- oath required of voters -- a convention to amend the state Constitution -- results -- attempt in Louisiana -- martial law -- barbarities inflicted -- invasion of plantations -- order of General Butler -- execution of Mumford -- judicial system set up -- civil affairs administered by military authority -- order of President Lincoln for a provisional Court -- a military Court sustained by the army -- ‘necessity,’ the reason given for the power to create the Court -- this doctrine fatal to the Constitution -- cause of our withdrawal from the Union -- fundamental principles unchanged by force -- the contest not over; the strife not ended -- when the war closed, who were the victors?

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 [239]

Members of the Confederate Cabinet

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,’ said 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 socalled 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 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 provisions 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; helpless women were torn from their homes and subjected to solitary confinement, some in fortresses and prisons—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 was 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; 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; 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 [242] 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 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 [243] 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 cannot 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 [244] 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.¹

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 [245] welfare, during his presence. On such grounds the existence of such courts is justified; for the establishment of a court like this provisional one, however, 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’ and ‘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 everyone 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; every other issue, whether pretended or real, partook of [246] 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 faint-hearted; 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, is 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 [247] constitutional liberty. The war was one in which fundamental principles were involved; as force decides no truth, 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.