Volume II Part 25 (1/2)
”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 Was.h.i.+ngton, 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: