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Chapter 44:

  • Subjugation of the Northern States
  • -- humiliating spectacle of New York -- ‘Ringing of a little Bell’ -- seizure and imprisonment of citizens -- paper safeguards of liberty -- other safeguards -- suspension of the writ of habeas corpus absolutely forbidden with one exception -- abundant Protective provisions in New York, but all failed -- case of Pierce Butler -- arrest of Secretary Cameron -- the President Assumes Responsibiliy for the crime -- no Heed given to writ issued by the Court -- the governor passive -- words of Justice Nelson -- prison Overflowing -- how relieved -- oath required of Applicants for relief -- oath declined by some-order forbidding employment of counsel by prisoners -- victims in almost every Northern state -- defeat at the elections result -- suit for damages commenced -- Congress Interferes to protect the guilty -- state courts subjugated -- Congress Violates the Constitution -- what was New York? -- writ suspended throughout the United States -- correspondence between General Dix and governor Seymour -- seizure of newspapers -- governor orders arrest of offenders -- interference with the state election -- vote of the soldiers -- state agents arrested. Provost marshals appointed in every Northern state -- their duties -- trials by military commission -- trials at Washington -- assassination of the President -- trial of Henry Wirz -- efforts to Implicate the author -- investigation of a Committee of Congress as to complicity in the assassination -- arrest, trial and banishment of Clement C. Vallandigham -- assertions of governor Seymour on the case.

Now follows the humiliating spectacle of the subjugation of the state government of New York—the Empire State, as she calls herself —where, with all her men and treasures, it might have been supposed that some stanch defenders of constitutional liberty would have sprung up. On the contrary, under the pretext of ‘preserving the Union,’ her deluded children aided to destroy the Constitution on which the Union was founded, and put forth all their strength to exalt the government of the United States to supremacy. Thus the states were brought to a [403] condition of subjugation, and their governments subverted from the protection of the rights for which they were instituted. These unalienable rights of the people were left without a protector or a shield before the crushing hand of the usurper; the sovereignty of the people was set aside, and in its place arose the sovereignty of the government of the United States. With the foundation undermined, the superstructure subverted, the ends for which the Great Republic was organized entirely lost to sight, and the true balance of the system destroyed, unless the dormant virtue and love for their inherited rights shall arouse the citizens to a vigorous effort to restore the republican institutions and powers of the states, the emperors and kings of the earth have only to await calmly the lapse of time to behold a fulfillment of their evil prophecies in regard to the Great Republic of the world.

To show how the laws were disregarded, and how despotically the personal liberty of the citizen was invaded, let this example bear witness: the Secretary of State at Washington, William H. Seward, a favored son of the state of New York, would ‘ring a little bell,’ which brought to him a messenger, to whom was given a secret order to arrest and confine in Fort Lafayette a person designated. This order was sent by telegraph to the United States marshal of the district in which would be found the person who was to be arrested. The arrest being forcibly made by the marshal with armed attendants without even the form of a warrant, the prisoner without the knowledge of any charge against him was conveyed to Fort Hamilton and turned over to the commandant. An aid with a guard of soldiers then conveyed him in a boat to Fort Lafayette and delivered him to the keeper in charge, who gave a receipt for the prisoner. He was then divested of any weapons, money, valuables, or papers in his possession. His baggage was opened and searched. A soldier then took him in charge to the designated quarter, which was a portion of one of the casemates for guns, lighted only from the porthole, and occupied by seven or eight other prisoners. All were subjected to prison fare. Some were citizens of New York, and the others of different states. This manner of imprisonment was subsequently put under the direction of the Secretary of War, and continued at intervals until the close of the war.

In the brief period between July 1 and October 19, 1861, the Secretary of State made such diligent use of his ‘little bell’ that one hundred seventy-five of the most respectable citizens of the country were consigned to imprisonment in this Fort Lafayette, a strong fortress in the lower part of the harbor of New York. A decent regard for the memory [404] of the friend of Washington, and for the services rendered to the colonies in their struggle for independence, might have led Seward to select for such base use some other place than that which bore the honored name of Lafayette.

The American citizen has always, like the ancient Roman, felt that this personal liberty was secure. He supposed himself to be surrounded with numerous paper safeguards which, together with the love of justice and respect for law common to his fellow citizens, would be sufficient for his protection against any usurper. These now proved to be as weak as the paper upon which they were written. What were these supposed safeguards? There was the constitution of the state of New York, an instrument for the protection and government of the people. It had received the consent of the people of the state who were governed by it, and therefore its powers were ‘just powers.’ Its first object was to protect the unalienable rights of its citizens, relative to which it contains various provisions in its bill of rights: its declarations respecting personal liberty; its regulations to secure and enforce the great writ of freemen, the habeas corpus; the powers granted to the courts which it created; the legislature; the executive, in whose hands was placed the richest purse and the strongest sword of the sovereign states to protect the rights of its citizens.

Further safeguards were placed in the Constitution of the United States. These were designed to restrain that government from any invasion of the citizen's personal liberty. They are as follows:

The right of the people to be secure in their persons . . . shall not be violated, and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing . . . the persons to be seized.1


No persons shall . . . be deprived of life, liberty, or property, without due process of law.2


No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.3


In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory [405] process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.4

Among the enumerated powers of Congress is the following clause:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require.5

This clause first forbids the suspension of the writ absolutely. A single exception is then made by the words ‘unless the public safety may require.’ A condition is attached to this exception which still further limits it, by the words ‘in cases of rebellion or invasion.’ There is still another and far more sweeping limitation attached to this clause. The writ must be suspended by an act of Congress, which can be passed only when Congress is in session. This suspension must be positive and absolute by Congress, not indefinite and dependent on any future contingency. For the acts of Congress are not absolute powers, if between enactment and enforcement they can be set aside by a contingency, unless such contingency was attached in the clause of the grant creating the power. But in these words of the Constitution there is no contingency expressed. Congress alone by positive enactment can suspend the writ of habeas corpus. It cannot authorize the President to suspend its force, nor has he any authority under the Constitution to do it. Neither can Congress make an intermittent suspension of the force of the writ; it must be absolute under the specific condition.

It is evident that the citizen of New York was abundantly provided with the safeguards of personal liberty; yet they all proved to be of no avail to secure and enforce his right in the hour of trial. A few instances will afford an illustration of the facts. Pierce Butler was suspected of corresponding with persons in the Confederate States. He was arrested in Philadelphia on August 19, 1861, by order of Simon Cameron, then Secretary of War, without process of law and without any assigned cause. His trunks and drawers, wardrobe, and entire apartments were searched, and his private papers taken by the marshal and his four assistants. His office was also examined, and his books and papers taken, and within an hour he was on his way to Fort Lafayette with an armed guard. After five weeks of detention he was liberated. No reason was given for his discharge any more than for his arrest. As Cameron was about to sail as minister to Russia, in January ensuing, he was arrested for assault and battery and false imprisonment, at the suit of Butler. The case was brought to the knowledge of the President of the United [406] States, and on April 18, 1862, the Secretary of State, Seward, replied as follows:

The communication has been submitted to the President, and I am directed by him to say in reply that he avows the proceeding of Mr. Cameron referred to as one taken by him when Secretary of War, under the President's directions, and deemed necessary for the prompt suppression of the existing rebellion.

The writ of habeas corpus was issued by some of the state courts, directing the officer in command at the fort to bring some one or other of the prisoners into court for an investigation of the cause and authority for his detention. But no attention was given to these writs by the officer. Neither did the governor of the state make any effort to enforce the processes of the courts. He, perhaps, expected that his efforts might be resisted by an overpowering force. But expectations, of whatsoever nature, do not justify or excuse the neglect of a positive duty. It is through such weaknesses that the liberties of mankind have been too often lost.

Thus the Constitution, the laws, the courts, the executive of the state of New York, were subverted, turned aside from the end for which they were instituted, and all the specific arrangements were of no avail to secure this guaranteed right of its citizens. Probably every one of the prisoners was entirely innocent of any act whatever that was criminal under the laws, either of the state or of the United States.

In opinion they were opposed to the military proceedings of the government of the United States; these opinions they had expressed, which liberty is a part of the birthright of freemen. Indeed, Judge Nelson of the Supreme Court of the United States, in the Circuit of New York, in an opinion delivered about this time thus expressed himself:

Words, oral, written, or printed, however treasonable, seditious, or criminal of themselves, do not constitute an overt act of treason within the definition of the crime. When spoken, written, or printed, in relation to an act or acts which, if committed with a treasonable design, might constitute such overt act, they are admissible as evidence, tending to characterize it and show the intent with which the act was committed.

Finally the prison in New York harbor became so full that many prisoners were sent to Fort Warren in the harbor of Boston. At this time the government of the United States used the old Capitol at Washington, Fort McHenry of Baltimore, Fort Lafayette at New York, and Fort Warren at Boston, for the confinement of those whom the usurper designated as ‘state prisoners.’ Still further to relieve the fullness of the prisons, two men, John A. Dix of the army and Edwards Pierrepont of civil life, were sent to investigate the cases of the prisoners, and [407] release some who were willing to take an ‘oath of allegiance.’ Next it was made a condition precedent to an investigation that the said oath should be taken by the prisoner. As an instance, this proposal was made to two persons named Flanders, citizens of the interior of New York. The oath was as follows:

I do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance, and loyalty to the same, any ordinance, resolution, or law of any State Convention, or Legislature, to the contrary notwithstanding; and, further, that I do this with a full determination, pledge, and purpose, without any mental reservation or evasion whatsoever; and, further, that I will well and faithfully perform all the duties which may be required of me by law.

These persons declined to take the prescribed oath. The reasons which they gave for this refusal furnish painful evidence of the extreme subjugation of the government of the state of New York, and its silent submission to the arbitrary and unconstitutional acts of the government of the United States, even at the sacrifice of the most sacred rights of freemen. They said:

We have been guilty of no offense against the laws of our country, but have simply exercised our constitutional rights as free citizens in the open and manly expression of our opinions upon public affairs. We have been placed here without legal charges, or, indeed, any charges whatsoever being made against us, and upon no legal process, but upon an arbitrary and illegal order of the Hon. William H. Seward, Secretary of State of the United States. Every moment of our detention here is a denial of our most sacred rights. We are entitled to and hereby demand an unconditional discharge; and, while we could cheerfully take the oath prescribed by the Constitution of the United States, because we are, always have been, and ever intend to be loyal to that instrument (though at the same time protesting against the right of the Government to impose even such oath upon us as the condition of our discharge), we can not consent to take the oath now required of us, because we hold no office of any kind under the Government of the United States, and it is an oath unknown to and unauthorized by the Constitution, and commits us to the support of the Government though it may be acting in direct conflict with the Constitution, and deprives us of the right of freely discussing, and by peaceful and constitutional methods opposing its measures—a right which is sacred to freedom, and which no American citizen should voluntarily surrender. That such is the interpretation put upon this oath by the Government, and such its intended effect is plainly demonstrated by the fact that it is dictated to us as a condition of our release from an imprisonment inflicted upon us for no other cause than that we have exercised the above-specified constitutional rights.

One important fact which illustrates the flagrant outrage committed on all these prisoners should not be omitted. The Constitution of the United States declares as follows: [408]

In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.—

On December 3, 1861, the commanding officer at Fort Lafayette came to the prisoners' quarters and read a document, of which the following is a copy:

To the political prisoners in Fort Lafayette:
I am instructed by the Secretary of State to inform you that the Department of State of the United States will not recognize any one as an attorney for political prisoners, and will look with distrust upon all applications for release through such channels; and that such applications will be regarded as additional reasons for declining to release the prisoners.

And, further, that if such prisoners wish to make any communication to the Government, they are at liberty to make it directly to the State Department.

Space will not permit me further to notice the instances of this immense class of cases. In almost every Northern state the victims of this violence were to be found. That there was no just cause for these invasions of the rights of the states, and of the citizens, was demonstrated in the most decisive manner. At this time (November 4, 1862) the friends of the administration of the United States government were decisively defeated at the elections. On November 22d ensuing, the War Department issued an order releasing all except prisoners of war. The order was muffled up in a phraseology suited to hide from the observation of the people that the result of the elections had stricken home to the sensibilities of the usurpers. It said:

Ordered—1. That all persons now in military custody, who have been arrested for discouraging volunteer enlistments, opposing the draft,6 or for otherwise giving aid and comfort to the enemy, in States where the draft has been made or the quota of volunteers and militia has been furnished, shall be discharged from further military restraint.

Thus these arrests were for a short period suspended, and then vigorously renewed.

Many of these persons who had been illegally seized and imprisoned now commenced suits for damages. This led to another step on the part of the government of the United States, by which the judiciary of the state was entirely subverted and deprived of all jurisdiction in these cases. Congress passed an act on March 3, 1863, which provided that any order of the President of the United States, or arrest made under his authority, when pleaded, should be a defense, in all courts, to any action or prosecution for any search, seizure, arrest, or imprisonment [409] made, done, or committed, or any acts omitted to be done, under or by virtue of such order, or under color of any law of Congress. The act further provided that all actions against officers and others for torts in arrests might be removed for trial to the next Circuit Court of the United States held in the district, and said:

It shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution, and the bail that shall have been originally taken shall be discharged.

It will be noticed that by the terms of this act the case could be removed to the Circuit Court when the defendant ‘filed a petition stating the facts verified by affidavit.’ Thus the jurisdiction of all the courts of the state of New York was made to terminate and cease upon the simple word of the defendant accompanied by an affidavit. But these courts were instituted by the consent of the governed, for the protection of the personal freedom of the citizen; yet in the cases brought before them they ordered the removal on the ground that they involved the question of the constitutionality of an act of Congress, over which the courts of the United States had a jurisdiction. The absurdity of this plea is manifest; it is founded on the presumption that the question, whether, under authority from the President of the United States, anyone, without intervention of the judicial tribunals, can incarcerate a citizen, is a question which can be treated as constituting a case arising under the Constitution of the United States. Any statute authorizing such acts is palpably void, and not entitled to be a ground for a hearing under an appeal.

The subjugation of the government of the state of New York was made in another section of the same act of Congress of March 3, 1863. It declares:

That during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.

Let us turn to the words of the Constitution of the United States which are contained in the grant of powers to Congress:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

It will be seen that two facts are required to exist before the Congress of the United States can suspend the privilege of this writ. Congress must, therefore, determine the existence of these facts before it has power constitutionally to act. If it finds either fact to exist and not the other, it has no power to suspend the privilege of the writ. There must [410] be rebellion, and the public safety must require the suspension. When Congress finds these facts to exist, it can enact the suspension. It is the judgment of Congress alone that can determine that the public safety requires the suspension. This cannot be delegated to the judgment of any other department of the government. Therefore, when Congress tells the President, in the abovementioned act, that he is authorized to suspend the privilege of this writ whenever, in his judgment, the public safety may require it, then that body undertakes to do that for which it has no authority in the Constitution. The states delegated the power solely to Congress; an act to transfer the trust to any other depository could rightfully have no force whatever.

The state of New York, in which this writ was thus suspended by the government of the United States, was one of the Northern states and a most ardent advocate of the Union. It had contributed more men and money to support the government of the United States than any other state, and than some whole sections of states. Peace reigned throughout all its borders. Yet, in this quiet and ‘loyal’ state, whose people had given so freely to aid the government of the United States, a claim was now set up to the right to nullify the rights and immunities of every citizen, by that government which had already nullified the powers of every court in the state. This was done by the declaration of the President that ‘the public safety’ required the suspension of the privilege of the writ of habeas corpus.

The act of Congress was passed on March 3, 1863, and on September 15th the President issued his proclamation, and, referring to the authority claimed to have been granted by the act, he proceeded to say:

Whereas, In the judgment of the President, the public safety does require that the privilege of said writ shall now be suspended throughout the United States, in cases where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or either of them, hold persons under their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen, enrolled, drafted, or mustered, or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or to the rules or articles of war, or the rules and regulations prescribed for military and naval service by the authority of the President of the United States, or for resisting a draft, or for any other offense against the military or naval service: Therefore I do hereby proclaim and make known that the privilege of the writ of habeas corpus is suspended throughout the United States in the several cases before mentioned throughout the duration of said rebellion.

No autocrat ever issued an edict more destructive of the natural right to personal liberty. Not only was the state government of New York [411] deprived of the power to fulfill its obligations to protect and preserve this right of its-citizens, but every state government of the Northern states was in like manner subverted. The only distinction known among the citizens was that established by the government of the United States in answer to the question applied to each one, ‘Is he loyal or disloyal?’ The only test of loyalty was based on submission, and, as usual in such cases, the most abject in spirit were the most loyal to the usurper. All those liberties of conduct and action which stamp the true freeman everywhere throughout the world disappeared; the suppressed voice, the apprehensive look, and the cautious movements were substituted for the free speech, the open brow, and fearless tread which had characterized the American.

Another step in the subjugation of the government of the state of New York was made by the dominion over it of the military power of the government of the United States. This took place in a time of peace in the state, when the courts were all open and the civil administration of affairs was unobstructed. On July 30, 1863, the United States commanding general of that department addressed a letter to Governor Seymour, saying:

As the draft under the act of Congress of March 3, 1863, for enrolling and calling out the national forces, will probably be resumed in this city (New York) at an early day, I am desirous of knowing whether the military power of the State may be relied on to enforce the execution of the law, in case of forcible resistance to it. I am very anxious there should be perfect harmony of action between the Federal Government and that of the State of New York; and if, under your authority to see the laws faithfully executed, I can feel assured that the act referred to will be enforced, I need not ask the War Department to put at my disposal, for the purpose, troops in the service of the United States.

Governor Seymour replied on August 3d:

I have this day sent to the President of the United States a communication in relation to the draft in this State. I believe his answer will relieve you and me from the painful questions growing out of an armed enforcement of the conscription law in this patriotic State, which has contributed so largely and freely to the support of the national cause during the existing war.

On August 8th General Dix writes again:

It is my duty, as commanding officer of the troops in the service of the United States in this department, if called on by the enrolling officers, to aid them in resisting forcible opposition to the execution of the law; and it is from an earnest desire to avoid the necessity of employing for the purpose any of my forces, which have been placed here to garrison the forts and protect the public property, that I wished to see the draft enforced by the military power of the State, in case of armed or organized resistance to it. . . . I designed, if your cooperation could not be relied on, to ask the General Government for a force which should be adequate [412] to insure the execution of the law and to meet any emergency growing out of it.

Meantime Governor Seymour received no answer to his letter to the President. He had asked for a suspension of the draft, on the ground that the enrollments in the city were excessive as compared with other portions of the state, and that due credit was not given for the past. He therefore replied to General Dix, saying:

As you state in your letter that it is your duty to enforce the act of Congress, and, as you apprehend its provisions may excite popular resistance, it is proposed you should know the position which will be held by the State authorities. Of course, under no circumstances, can they perform duties expressly confided to others, nor can they undertake to relieve others from their proper responsibilities. But there can be no violations of good order, or riotous proceedings, no disturbances of the public peace, which are not infractions of the laws of the State; and those laws will be enforced under all circumstances. I shall take care that all the executive officers of this State perform their duties vigorously and thoroughly, and, if need be, the military power will be called into requisition. As you are an officer of the General Government, and not of the State, it does not become me to make suggestions to you with regard to your action under a law of Congress. You will, of course, be governed by your instructions and your own views of duty.

On August 18th General Dix thus wrote to the governor:

Not having received an answer from you, I applied to the Secretary of War on the 14th inst. for a force adequate to the object. The call was promptly responded to, and I shall be ready to meet all opposition to the draft.

The force sent by the Secretary of War, to keep the peace and subjugate the sovereignty of the people, amounted to forty-two regiments and two batteries. There was no occasion for the exertion of their powers, but the wrong to the state of New York was none the less gross.

Again, the subjugation of the government of the state of New York by the domination of the military power was made still more manifest by another act on the part of the government of the United States. A spurious proclamation, seeming to have been issued by the President, calling for four hundred thousand men, by a fraudulent imposition appeared in two papers of New York City (the Journal of Commerce and the World) on the morning of May 18, 1864. It was immediately contradicted by the authorities at Washington, and orders were issued, under which the offices of these papers were entered by armed men, the property of the owners seized, the premises held by force for several days, and the publications suspended. At the same time the office of the independent telegraph line was occupied by a military force in the name of the government of the United States. The operators were taken into custody, and the proprietors of the newspapers were ordered to be arrested and imprisoned. But these orders were suspended. [413]

Governor Seymour immediately instructed the District Attorney to proceed against the offenders, saying:

In the month of July last, when New York was a scene of violence, I gave warning that ‘the laws of the State must be enforced, its peace and order maintained, and the property of its citizens protected at every hazard.’ The laws were enforced at a fearful cost of blood and life. The declaration I then made was not intended merely for that occasion, or against any class of men. It is one of an enduring character, to be asserted at all times, and against all conditions of citizens without favor or distinction. Unless all are made to bow to the law, it will be respected by none. Unless all are made secure in their rights of person and property, none can be protected.

An investigation was made by one of the city judges, and warrants were issued for the arrest of Major General Dix and several of his officers. They voluntarily appeared by counsel on July 6th, and the argument was set down for the 9th. On that day the counsel for the defense said:

Since this warrant was issued, the President of the United States has issued another order to General Dix, which directs him that, while this civil war lasts, he ‘must not relieve himself from his command, or be deprived of his liberty to obey any order of a military nature which the President of the United States directs him to execute.’

The result of the arguments was that the officers were held to await the action of the grand jury, who, however, took no action on the charges. The guilty person was arrested in two or three days after the appearance of the proclamation, and imprisoned in Fort Lafayette; the newspaper and telegraph offices were restored to the owners, and the publications resumed. But the government of New York never obtained any indemnification of these losses by its citizens.

Another subversion of the state government was brought about by the military interference on the part of the government of the United States with the state election. This was in 1864, when President Lincoln and General McClellan were the candidates for the presidency of the United States. As usual in all these cases, proceedings to work up a pretended necessity for interference on the part of the United States government were commenced by the appearance of a grandiloquent proclamation from the commanding general, Dix, telling what horrible designs, there was reason to believe, the agents of the Confederate States in Canada had prepared to be executed on election day, by an invasion of voters from Canada to colonize different points. Therefore, to avert these dreadful dangers and arrest the guilty parties, it was necessary that provost marshals, sustained by a military force, should be [414] present with authority at the polls. At the same time the State Department issued a dispatch, saying:

Information has been received from the British provinces to the effect that there is a conspiracy on foot to set fire to the principal cities in the Northern States on the day of the Presidential election.

Thus was created an apparent necessity for the military force to be very active on the day of election. Governor Seymour issued a proclamation, saying:

There is no reason to doubt that the coming election will be conducted with the usual quiet and order.

Major General Butler was sent to take command in the city, seven thousand additional men were placed in the forts of the harbor, and proclamations were issued threatening, by the United States Government, the severest punishment upon every person who might attempt improperly to vote at the election in the state of New York.

The state legislature, at its previous session, had passed an act to provide for the vote of the soldiers in the field, to be taken previous to the day of election. Agents were appointed by the state government to the localities where the soldiers were stationed, to receive the votes. The informers of the United States government immediately brought charges of fraud against some of these agents, and they were seized by the military authorities, sent to Washington, cast into prison, and held to be tried by a military commission. The governor of New York immediately appointed Amasa J. Parker and two other most respectable citizens as commissioners, to proceed to Washington in behalf of the state and investigate the difficulties. They informed the governor that several hundred ballots, which had been seized, were given up, and that they visited the principal agent of the state of New York in his prison, through the permission of Edwin M. Stanton, Secretary of War. They reported thus:

The undersigned availed themselves of the permit granted them to visit Colonel North, M. M. Jones, and Levi Cohn. They found them in the ‘Carroll Prison,’ in close confinement. They then learned that Messrs. North and Cohn had been confined together in one room, and had not been permitted to leave it for a moment during the four days they had been prisoners, even for the purposes of answering the calls of nature. They had been supplied with meager and coarse prison-rations, to be eaten in their room, where they constantly breathed the foul atmosphere arising from the standing odor. They had no vessel out of which to drink water, except the one furnished them for the purpose of urination. They had but one chair, and had slept three of the nights of their confinement upon a sack of straw upon the floor. They had not been permitted to see a newspaper, and were ignorant of the cause of the their arrest. All [415] communication between them and the outer world had been denied them, and no friend has been allowed to see them. The undersigned complained to the acting superintendent, who seemed humanely disposed, but justified his course by the prison rules and the instructions of his superiors.

The commissioners further say:

From the best investigation the undersigned have been able to make, though there may have been irregularities, they have found no evidence that any frauds, either against any elector or the elective franchise, have been committed by any person connected with the New York agency.

The commissioners then addressed a communication to the Secretary of War. A few extracts from this communication will show how utter was the subversion of the authority of the government of the state of New York. They say:

They, North, Cohn, and Jones, were not in the military or naval service of the United States, and by no law of which we are aware were they subject to the martial and military laws of the United States, or to the orders of the War Department. . . . The charges, so far as we can learn, are not for the violation of any law of the United States, but relate to acts purporting to have been done under the law of the State of New York concerning elections, and making provisions for soldiers voting in that State; it being claimed that certain irregularities have intervened which give reason to suspect that frauds and forgeries are intended, and may be consummated. These suspected and anticipated frauds have respect solely to the election laws of the State of New York, and the action of the Government in making the arrest is claimed to be justified upon the ground that, unless thus prevented, frauds will be perpetrated against the ballot-box at the approaching election in the State of New York. We beg leave, in behalf of the State, respectfully to protest against this jurisdiction, assumed as well over the alleged offense as over the persons of the accused, who are citizens of the State, in its employ, and entitled to its protection. The proper business of the State agency is greatly interfered with by the arrest and detention of the agents, and the State is deprived of its proper jurisdiction over its agents and citizens, over offenses against its laws, and over its own ballot-box and the exercise of the elective franchise within its limits.

The demands made by the state of New York through these commissioners were refused. The persons arrested were finally tried before a military commission, clearly without jurisdiction, in violation of their personal rights, and in usurpation of the just powers of the state. They were, however, acquitted and discharged, glad to get off no worse.

The proposed limits will not permit me further to present the details relative to the subjugation of the state government of New York by the government of the United States. Neither can space be spared to relate the details of the subjugation of the government of each Northern state. In many the events were similar to those in New York; in others they arose under dissimilar circumstances; in all, the sovereignty of the [416] people was entirely disregarded, and the operation of the institutions which had been established for the protection of their rights was suspended, or nullified, by a military force of the government of the United States. Only such events, therefore, can be stated as serve to show how universal and how complete was the work done by the United States government to secure a recognition of its supremacy, over not only acts but even words, from every citizen. All were its subjects; the ‘loyal’ as some were called, were its friends, and could be trusted; the ‘disloyal’ were its disaffected subjects, and must be watched by spies and informers, and, if necessary, put in prison to secure their passive submission.

A military domination was established in all of the Northern states, under the pretext of securing the arrest of deserters from the army. This was accomplished on September 24, 1862, by the appointment of a provost marshal general of the War Department at Washington, and in each state one or more special provost marshals, who were required to report to and receive instructions from the provost marshal general. It was made the duty of the special marshals—

To arrest all deserters, whether regulars, volunteers, or militia, and send them to the nearest military commander or military post, where they can be cared for and sent to their respective regiments; to arrest, upon the warrant of the Judge Advocate, all disloyal persons subject to arrest under the orders of the War Department; to inquire into and report treasonable practices, seize stolen or embezzled property of the Government, detect spies of the enemy, and perform such other duties as may be enjoined on them by the War Dpartment.

To enable these marshals to perform their duties efficiently, they were authorized to call on any available military force within their respective districts, or else to employ the assistance of citizens, constables, sheriffs, or police officers, so far as might be necessary. No trial was allowed to any person thus arrested except before a military commission consisting of military officers designated for the purpose; the prosecutor was the judge advocate, and the punishments were exemplary, unusual, and too often such as were unknown to the laws. The state governments within whose domains the courts were open, the civil institutions in quiet operation, and the transactions of peaceful life uniform and constant, were powerless to protect their citizens in their unalienable rights of freedom of speech and personal liberty, and the mandates of their courts were treated with contempt. In utter disregard of the principles of civil liberty a military control was established in every Northern state, the declarations of rights in their constitutions were violated, their laws nullified, and the authority of their [417] governments subverted by an absolute and direct usurpation on the part of the government of the United States.

The country was filled with horror during 1865 by two trials held before a military commission in the city of Washington. The first commenced on May 13th, and ended on June 29th. The specification was—

That David E. Harold, Edward Spangler, Lewis Payne, John H. Surratt, Michael O'Loughlin, Samuel Arnold, George A. Atzerott, Samuel A. Mudd, and Mary E. Surratt, did on April 15, 1865, combine, confederate, and conspire together to murder President Abraham Lincoln, Vice-President Andrew Johnson, Lieutenant-General U. S. Grant, and Secretary of State William H. Seward.

President Lincoln had been shot, and Secretary Seward was badly wounded with a knife. The others were uninjured.

The sentence of the commission was that David E. Harold, G. A. Atzerott, Lewis Payne, and Mary E. Surratt be hanged by the proper military authority, under the direction of the Secretary of War, on July 7, 1865. The others were sentenced to imprisonment at hard labor for a term of years or for life. With only one day's delay, the sentences were carried into execution. John H. Surratt escaped before trial. He was sought for by spies of the War Department half ‘round the world, and after a long time was found serving as a soldier in the corps of Papal Zouaves at Rome. He was brought back to Washington, tried, and acquitted.

The insertion of my name with those others, honorable gentlemen, as ‘inciting and encouraging’ these acts, served as an exhibition of the malignant spirit with which justice was administered by the authorities in Washington at that time. The case of Mrs. Surratt, at whose house some of these persons had boarded, awakened much sympathy. She was spoken of by her counsel, Reverdy Johnson of Maryland, as ‘a devout Christian, ever kind, affectionate, and charitable,’ which was confirmed by evidence and uncontradicted. On the day of the execution her daughter, who was quite a devoted and affectionate person, sought to obtain an audience with President Johnson to implore at least a brief suspension of the sentence of her mother. She was obstructed and prevented from seeing the President by ex-Senator Preston King of New York and Senator James H. Lane of Kansas, who were reported to have been at the Executive Mansion to keep guard over President Johnson. Each of these senators at a later period committed suicide.

The trial of Major Henry Wirz was the next in importance which came before a military commission. In April, 1865, President Johnson issued a proclamation stating that, from evidence in possession of the [418] Bureau of Military Justice, it appeared that I, Jefferson Davis, was implicated in the assassination of President Lincoln, and for that reason he offered a reward of one hundred thousand dollars for my capture. That testimony was subsequently found to be entirely false, having been a mere fabrication. The manner in which this was done will be presently stated. Meantime, certain persons of influence and public position at that time, either aware of the fabricated character of this testimony or convinced of its insufficiency to secure my conviction on a trial, sought to find ample material to supply this deficiency, in the great mortality of the soldiers we had captured during the war and imprisoned at Andersonville.7

Orders were therefore issued by the authorities of the United States government to arrest a subaltern officer, Captain Henry Wirz, a foreigner by birth, poor, friendless, and wounded, and held as a prisoner of war. He had been included in the surrender of General J. E. Johnston. On May 7th he was placed in the ‘Old Capitol’ prison at Washington. The poor man was doomed before he was heard, and the permission to be heard according to law was denied him. Captain Wirz had been in command at the Confederate prison at Andersonville. The first charge alleged against him was that of conspiring with myself, Secretary Seddon, General Howell Cobb, General Winder, and others, to cause the death of thousands of the prisoners through cruelty, etc. The second charge was alleged against himself for murder in violation of the laws and customs of war.

The military commission before which he was tried was convened by an order of President Johnson of August 19th, directing the officers detailed for that purpose to meet as a special military commission on August 20th, for the trial of such prisoners as might be brought before it. The commission convened, and Wirz was arraigned on the charges above mentioned, and pleaded not guilty. At the suggestion of the judge advocate, Joseph Holt, he was remanded to prison and the court adjourned. The so-called trial afterward came on, and lasted for three months, but no evidence whatsoever was produced showing the existence of such a conspiracy as had been charged. Wirz was, however, pronounced guilty, and, in accordance with the sentence of the commission, he was executed on November 10, 1865.

On April 4, 1867, Louis Schade of Washington, the attorney for Wirz on the trial, in compliance with the request of Wirz so to do as soon as the times should be propitious, published a vindication of his [419] character., The following is an extract from this publication:

On the night previous to the execution of the prisoner, some parties came to the confessor of Wirz (Rev. Father Boyle) and also to me. One of them informed me that a high Cabinet officer wished to assure Wirz that, if he would implicate Jefferson Davis with the atrocities committed at Andersonville, his sentence should be commuted. He (the messenger, whoever he was) requested me to inform Wirz of this. In presence of Father Boyle, I told him next morning what had happened. The Captain simply and quietly replied: ‘Mr. Schade, you know that I have always told you that I do not know anything about Jefferson Davis. He had no connection with me as to what was done at Andersonville. If I knew anything of him, I would not become a traitor against him or anybody else to save my life.’ Thus ended the attempt to suborn Captain Wirz against Jefferson Davis.

The following is an extract from a letter of Captain C. B. Winder to Mrs. Davis, dated Eastern Shore of Virginia, January 9, 1867:

The door of the room which I occupied while in confinement at the Old Capitol Prison, Washington, was immediately opposite Captain Wirz's door—both of which were occasionally open. About two days before Captain Wirz's execution, I saw three or four men pass into his room, and, upon their coming out, Captain Wirz told me that they had given him assurances that his life would be spared and his liberty given to him if he (Wirz) could give any testimony that would reflect upon Mr. Davis or implicate him directly or indirectly with the condition and treatment of prisoners of war, as charged by the United States authorities; that he indignantly spurned these propositions, and assured them that, never having been acquainted with Mr. Davis, either officially, personally, or socially, it was utterly impossible that he should know anything against him, and that the offer of his life, dear as the boon might be, could not purchase him to treason and treachery to the South and his friend.

The following letter is from the Rev. Father F. E. Boyle of Washington:

Dear Sir: . . . I know that, on the evening before the day of the execution of Major Wirz, a man visited me, on the part of a Cabinet officer, to inform me that Major Wirz would be pardoned if he would implicate Jefferson Davis in the cruelties of Andersonville. No names were given by this messenger, and, upon my refusal to take any action in the matter, he went to Mr. Louis Schade, counsel for Major Wirz, with the same purpose and with a like result.

When I visited Major Wirz the next morning, he told me that the same proposal had been made to him, and had been rejected with scorn. The Major was very indignant, and said that, while he was innocent of the cruel charges for which he was about to suffer death, he would not purchase his liberty by perjury and a crime, such as was made the condition of his freedom. I attended the Major to the scaffold, and he died in the peace of God, and praying for his enemies. I know he was indeed innocent of all the cruel charges on which his life was [420] sworn away, and I was edified by the Christian spirit in which he submitted to his persecuters.

Yours very truly,

In the other case of the fabrication of evidence by some of the authorities in Washington relative to myself, it will be sufficient here to present what others have said and done. The subject is noticed in these pages only to show the desperate extremities to which the agents of the government of the United States proceeded in order to compass my ignominious death. Three principal measures were resorted to for the accomplishment of this object: the charge in the case of Wirz, above mentioned; the fabrications in the case now under consideration, and the cruel and inhuman treatment inflicted upon me while a prisoner in Fortress Monroe.

At the session of Congress of 1865-‘66, a committee was appointed in the House of Representatives ‘to inquire into and report upon the alleged complicity of Jefferson Davis with the assassination of the late President Lincoln,’ or words to that effect. George S. Boutwell was chairman of the committee, and the majority of the members were extreme advocates of the war. The charge emanated from the Bureau of Military Justice, as it was designated—a similar institution to the ‘Secret Committee’ of the French Revolution. Of this institution Judge Advocate Joseph Holt was the chief. After an investigation continuing through several months, a majority of the committee made their report to Congress.

That report not only failed to establish the charge, but the committee were forced to confess in it that the witnesses, on whose testimony Holt had affected to rely, were wholly untrustworthy. Shortly after this report was presented to the House, Mr. A. J. Rogers, of the committee, a very respectable member from New Jersey, made a minority report. He asserted that much of the evidence was altogether suppressed, and that the witnesses, who had received large sums of money from Holt for testifying to the criminality of Mr. Davis, recanted their evidence before the committee, and acknowledged that they had perjured themselves by testifying to a mass of falsehoods; that they had been tutored to do so by one S. Conover; and that, from him down through all the miserable list, the very names under which these hired informers were known to the public were as false as the narratives to which they had sworn.8

Much more might be added to show the evil purpose of these men, together with the correspondence of Holt and his associates, but it would be out of place if it was put in these pages.

Another case of this kind occurred in the state of Ohio in April, [421] 1863, in the arrest, trial, and banishment of Clement L. Vallandigham. On April 13th Major General Ambrose E. Burnside, commanding the Department, issued an order, declaring—

That, hereafter, all persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death. [The different classes of persons were then named in the order.] The habit of declaring sympathies for the enemy will no longer be tolerated in this department. Persons committing such offenses will be at once arrested, with a view to being tried as above stated, or sent beyond our lines into the lines of their friends. It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department.

Vallandigham commented upon this order on May 1st, at a public meeting of citizens. Three days afterwards a body of soldiers was sent by railroad from Cincinnati to Dayton, who, with violence, broke into his residence at three o'clock in the morning, seized, and hurried him to the cars before a rescue could be made, and departed for Cincinnati, where he was confined in a military prison. He was brought to trial before a military commission on May 6th. The specification made against him in the charge was that ‘he addressed a large meeting of citizens at Mount Vernon, and did utter sentiments in words, or in effect, as follows: declaring the present war “a wicked, cruel, and unnecessary war” ; “a war not being waged for the preservation of the Union” ; “a war for the purpose of crushing out liberty and creating a despotism” ; ‘a war for the freedom of the blacks and the enslavement of the whites’; stating that, “if the Administration had so wished, the war could have been honorably terminated months ago” ; characterizing the military order “as a base usurpation of arbitrary authority” ; declaring “that he was at all times and upon all occasions resolved to do what he could to defeat the attempts now made to build up a monarchy upon the ruins of our free government.” ’

He was adjudged as guilty, and sentenced to confinement in Fort Warren, Boston Harbor, during the war. This sentence was changed by President Lincoln to banishment to the Confederate States. This military usurpation was spoken of by Governor Seymour of New York in a letter written at the time, in these words:

The transaction involved a series of offenses against our most sacred rights. It interfered with the freedom of speech; it violated our rights to be secure in our homes against unreasonable searches and seizures; it pronouncd sentence without a trial, save one which was a mockery, which insulted as well as wronged. The perpetrators now seek to impose punishment, not for an offense against law, but for a disergard of an invalid order, put forth in utter violation of the principles of civil liberty. If this proceeding is approved by the Government and sanctioned [422] by the people, it is not merely a step toward revolution, it is revolution; it will not only lead to military despotism, it establishes military despotism. If it is upheld, our liberties are overthrown. The safety of our persons, the security of our property, will hereafter depend upon the arbitrary wills of such military rulers as may be placed over us, while our constitutional guarantees will be broken down. Even now the Governors and the courts of some of the great Western States have sunk into insignificance before the despotic powers claimed and exercised by military men who have been sent into their borders.

A large number of such arrests were made in Ohio, newspapers were suspended, and editors imprisoned. Like scenes were very numerous in Indiana and Illinois. In Pennsylvania arrests were made, newspapers suspended, editors imprisoned, and offices destroyed. In New Hampshire, Vermont, and Wisconsin many similar scenes occurred. The provost-marshal system was used as a weapon of vindictiveness against influential citizens of opposite political views throughout all the Northern states. No one of such persons knew when he was safe. A complaint of his neighbors, supported by affidavit of ‘disloyal’ words spoken or ‘disloyal’ acts approved, received prompt attention from all marshals. Everything was brought into subjection to the will of the government of the United States and its military officers.

In view of all the facts here presented relative to the Northern states, let the reader answer where the sovereignty de facto resided. Most clearly in the government of the United States. That presided over the ballot box, held the keys of the prisons, arrested all citizens at its pleasure, suspended or suppressed newspapers, and did whatever it pleased under the declaration that the public welfare required it. But under the principles of American liberty the sovereignty is inherent in the people as an unalienable right; for the preservation and protection of this and other rights, the state governments were instituted. If, therefore, the people have lost this inherent sovereignty, it is evident that the state governments have failed to afford that protection for which they were instituted. If they have thus failed, it has been in consequence of their subversion and loss of power to fulfill the object for which they were established. This subversion was achieved when the general government, under the pretext of preserving the Union, made war on its creators the states, thus changing the nature of the federal Union, which could rightfully be done only by the sovereign, the people of the states, in like manner as it was originally formed. If they should permit their sovereignty to be usurped and themselves to be subjugated, individuals might remain, states could not. Of their wreck a nation might be built, but there could not be a Union, for that implies entities united, and of a state which has lost its sovereignty there may only be written, ‘It was.’

1 Article IV, amendment.

2 Article V, amendment.

3 Article V, amendment.

4 Article VI, amendment.

5 Article I, section 9.

6 The first act of Congress providing for an enrollment and draft was passed on March 3, 1863, three and a half months later than this order.

7 See chapter on exchange of prisoners.

8 Baltimore Gazette, September 25, 1866.

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