Meanwhile, each of the late Confederate States was occupied by a military force of the Government of the United States, and military orders were the supreme law; and that Government thereby proceeded to establish a State organization based on the principle of its own sovereignty. In the first place, the President of the United States issued a proclamation in such terms as to be applicable to each of the Confederate States wherever its affairs were in such process of subjugation as to permit the commencement of the proposed organization. This proclamation begins by setting forth four propositions as the basis of his authority: First, the Const.i.tution declares that the United States shall guarantee to every State in the Union a republican form of government, and protect each against invasion and domestic violence. Second, the President is Commander-in-Chief of the Army and Navy, as well as chief civil executive officer, and bound to take care that the laws be faithfully executed. Third, the rebellion, in its revolutionary progress, deprived the people of all civil government. Fourth, it becomes necessary and proper to enforce and carry out the obligations of the United States to the people of the State in securing it in the enjoyment of a republican form of government. Therefore, etc.

These propositions call for a notice as well because of their fallacy as their enormity. The third declares that the so-called rebellion, in its progress, deprived the people of each Confederate State of all civil government. There was a government over each Confederate State, then existing and in full operation. It was, in all its internal relations, the same government which existed when the State was a member of the Union, whereby it was recognized by the Government of the United States and by the other States as a lawful and republican State government. It had been created by the free consent of the people of the State, and they had defended it with their lives and their fortunes. It had been denied by the Government of the United States that any one of the Confederate States was a foreign state or outside the Union by its secession. There was, therefore, neither in law nor in fact, any foundation for the a.s.sertion that the so-called rebellion had deprived the people of each Confederate State of all civil government.

Having thus stripped each Confederate State of all civil government, it was a.s.serted that the Const.i.tution declares that the United States shall guarantee to each State a republican form of government. But to guarantee is not to create, to organize, or to bring into existence.

This can be done for a State government only by the free and unconstrained action of the whole people of a State. The creation of such a government is beyond the powers of the Government of the United States, as has already been shown. After a republican government has been inst.i.tuted by the people, the Const.i.tution requires the United States to guarantee its existence, and thereby forbids them or their Government to overthrow it and set up a creature of its own. The duty to guarantee commands the preservation of that which already exists. Such were the governments of the Confederate States before the war and after the war. Thus the power granted in the Const.i.tution to preserve and guarantee State governments was perverted to overthrow and destroy republican governments, and to erect in their places military Governors, Legislatures, and judicial tribunals.

The third proposition is that the President is Commander in-Chief of the Army and Navy and the chief civil executive. His troops already occupied each of these States, and held the people in subjection. His proclamation was therefore merely a military order from the hand of the conqueror. Everything which he can do under such a character partakes of the nature, simply and solely, of martial law. Therefore he proceeds under the fourth proposition, wherein it "becomes necessary and proper to carry out the obligations of the United States to the people" of each Confederate State, "in securing them in the enjoyment of a republican form of government." The American people were now about to witness, on an extensive scale, the tyrannical experiment of inst.i.tuting republican governments by the processes of martial law. They had declared it to be a self-evident truth that it was "the right of the people to alter or to abolish it [their government], and to inst.i.tute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." [130] This principle of the sovereignty of the people was now rejected, and the sovereignty of fleets and armies was subst.i.tuted.

"Now, therefore," says the Commander-in-Chief of the Army and Navy, and the chief civil executive officer of the United States, "in obedience to the high and solemn duties imposed upon me by the Const.i.tution of the United States, and for the purpose of enabling the loyal people of said State (or States) to organize a State government, whereby justice may be established, domestic tranquillity restored, and loyal citizens protected in all their rights of life, liberty, and property, I do hereby appoint ---- ---- provisional Governor of the State" It will be here noticed that all the proceedings are undertaken for the sake of the "loyal" persons in the State. Who is to decide what persons are "loyal"? He who issues the military order--the President and his agent the provisional Governor; and they naturally will decide those to be loyal who support and obey their orders. The free a.s.sent and dissent which are the basis of the validity of every political action under our system, are unknown in this case.

The duty of the provisional Governor is declared in the proclamation to be, "to prescribe such rules and regulations as may be necessary and proper for convening a convention composed of delegates to be chosen by that portion of the people of the State who are 'loyal' to the United States, and no others, for the purpose of altering and amending the Const.i.tution thereof." In the third of the four propositions laid down as the basis of authority for the President's proceedings, above mentioned, it is declared that the so-called rebellion, "deprived the people of the State of all civil government"; but here it is made the first duty of the provisional Governor to procure a convention of "loyal" persons "to alter and amend the Const.i.tution" of the State. Thus it seems that there was a State in existence, and a Const.i.tution in full vigor, notwithstanding the above declaration of the President to the contrary. This was that Const.i.tution of the State which was in force during that long and peaceful period through which the Const.i.tution of the United States was observed, and const.i.tutional laws enacted. Now it was to be altered and amended from what the sovereign people of those days had ordained it to be, at the command, and to conform to the views, of another sovereign. The nature of those alterations and amendments will be stated hereafter.

This convention was to possess the authority to exercise all the powers necessary "to restore the State to its const.i.tutional relations with the Federal Government." It was further provided that no person should vote unless he had taken the amnesty oath mentioned on a previous page, and was a qualified voter previous to the secession of the State. The convention or the subsequent Legislature was to prescribe the qualification of all voters afterward--"a power," says the President, "the people of the several States composing the Federal Union have rightfully exercised from the origin of the Government to the present time." The proclamation then continued: "And I do hereby direct: first, that the military commander of the department and all officers and persons in the military and naval service aid and a.s.sist the said provisional government in carrying into effect this proclamation; and they are enjoined to abstain from in any way hindering, impeding, or discouraging 'loyal' people from the organization of a State government as herein authorized." The proclamation closed with instructions to the Secretary of each department of the Government to proceed to put in operation his department within the limits of the State.

The first movement for the restoration of the Confederate States to the Union under subjugation was commenced in Virginia. Richmond was occupied by the forces of the United States Government, and the authority of all State officers elected during the war was annulled.

Affairs remained in this position until May 9, 1865, when the President of the United States issued an order declaring all the acts and proceedings of the political, military, and civil organizations in the State which had been in insurrection against the United States to be null and void; and that all persons who should attempt to exercise any authority as under the late State or Confederate officers, should be deemed and taken as in rebellion, etc. At this time Francis H. Pierpont, who had a.s.sumed to exercise the office of Governor of Virginia over ten counties around Alexandria, was recognized by the President as the true Governor of the State. He was aided to remove the seat of his government from Alexandria to Richmond, and there maintained by the military force. No hostile opposition, however, was anywhere manifested, while at Alexandria delegates from the ten counties had a.s.sembled in convention and a.s.sumed to amend the State Const.i.tution, and the little so-called legislative body had undertaken to pa.s.s various acts of importance.

The so-called Governor, in presenting a summary of them, concluded by saying, "Thus, State sovereignty--the _status_ of the African race-- the armed resistance to the Government of the United States--are disposed of." An election for a new Legislature and State officers was held on October 12th. All were allowed to vote who had not held office under the State government or the Confederacy during the war, after they had taken the amnesty oath. The so-called Legislature a.s.sembled and entered upon the regulation of all the affairs of the State. A general act of vagrancy was pa.s.sed, whereupon the major-general in command issued an order "that no magistrate, civil officer, or other person shall, in any way or manner, apply, or attempt to apply, the provisions of the said statute to any colored person in this department." At the munic.i.p.al election in Richmond, the Mayor, Attorney, and Superintendent of the Poor, elected, were persons who had held office under the Confederate States. They were not allowed by the military authority to qualify, and subsequently declined.

In 1865 the Congress of the United States pa.s.sed an act which provided that the following amendment to the Const.i.tution should be submitted to the Legislatures of the several States for ratification or rejection:

"SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to its jurisdiction.

"SECTION 2. Congress shall have full power to enforce this article by appropriate legislation."

One Dr. James L. Watson was tried for killing a negro in Rockbridge County, and acquitted. Major-General Schofield, in command of the military forces of the department, immediately ordered his arrest and trial by a military commission. On the a.s.sembling of the commission a writ of _habeas corpus_ was sued out of the Circuit Court of Richmond in behalf of Watson, and served on the General. In his answer, he declined compliance with the writ, saying:

"Dr. Watson is held for trial by military commission, under the authority of the act of Congress of July 16, 1866, which act directs and requires the President, through the commissioner and officers of the Freedmen's Bureau, to exercise military jurisdiction over all cases and questions concerning the free enjoyment of the right to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, etc., by all citizens, without respect to race or color, or previous condition of slavery, of the States whose const.i.tutional relations to the Government of the United States have been discontinued by the rebellion, and have not been restored."

In the mean time, the United States Attorney-General having examined the case, and reported that, in his opinion, the military commission had not competent jurisdiction, the President thereupon directed that the commission be dissolved and the prisoner discharged without delay.

Meantime Congress had pa.s.sed an act, known as the Civil Rights Bill, and a case came before the Circuit Court, at Alexandria, in which one of the parties offered to produce negro evidence. The Judge (Thomas) ruled that, inasmuch as the State laws of Virginia forbade the introduction of negro testimony in civil suits to which white men alone were parties, the evidence of the negro was inadmissible; and that Congressional legislation could not impair the right of the States to decide what cla.s.ses of persons were competent to testify in her courts.

A storm was now brewing which was soon to involve the President and Congress in open conflict. The reader will remember that, during the period in which these proceedings took place in Virginia, similar ones occurred in all the remaining Confederate States. Not only in Virginia, but in several of the other States, some persons had been voted for as members of Congress, but in no case had they been admitted to seats. This was one of the measures taken by Congress to indicate its disapproval of the President's plan for the treatment of the late Confederate States.

The difficulties that now arose between the President and Congress had reference entirely to the affairs of the Confederate States. The plan of the President left the negroes to the care of the States alone after the establishment of their emanc.i.p.ation. Congress desired them to be made American citizens, secure in all the rights of freemen and voters. The refusal to admit Senators and Representatives to Congress from the Confederate States served to arrest the operation of the President's plans to hold these States in abeyance.

No compromise could be made between the two. Each appealed to the Const.i.tution, forgetful that each had sustained all its ruthless violations during the last four years. Congress, therefore, commenced an independent action, and in its reckless course sought, unsuccessfully, to rid itself of the President by impeachment. Its first act, at the commencement of the session, in December, 1865, was the appointment, by a large majority in each House, of a joint Committee of Fifteen, to which was referred all questions relating to the conditions and manner in which Congress would recognize the late Confederate States as members of the Union. Meantime the credentials of all persons sent as Representatives and Senators from them were laid upon the table in each House, there to remain until the final action of the Committee of Fifteen. This was followed by the pa.s.sage, in February, 1866, of "an act to establish a bureau for the relief of freedmen, refugees, and abandoned lands." It proposed to establish military jurisdiction over all parts of the United States containing refugees and freedmen. This bill was vetoed by the President, and pa.s.sed over his veto.

In March an act was pa.s.sed "to protect all persons in the United States in their civil rights, and furnish the means of their vindication." The first section declared all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States, and enumerates the rights to be enjoyed by those so declared to be citizens. The second section affords discriminating protection to colored persons in the full enjoyment of all the rights secured to them by the preceding section. This bill was vetoed by the President, and pa.s.sed over his veto.

On June 8, 1866, a majority and a minority report were made by the Committee of Fifteen. Meanwhile, a report had been made from the same committee, at a previous date, in the form of an amendment to the Const.i.tution, which was debated and amended in each House, and finally pa.s.sed by the requisite majority in each. Thus was to be secured the political support and votes of the negroes, who were expected to be the controlling citizens of the late Confederate States.

The amendment to the Const.i.tution was now submitted to the Legislatures of all the States, to be valid as a part of the Const.i.tution, when ratified by three fourths, in the following form:

"ARTICLE--, SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

"SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But, when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for partic.i.p.ation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

"SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Const.i.tution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two thirds of each House remove such disability.

"SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But the United States shall neither a.s.sume nor pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emanc.i.p.ation of any slave; but all such debts, obligations, and claims shall be held illegal and void.

"SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

It may here be stated that the restoration of the late Confederate States to all the rights and privileges of States as co-equal members of the Union, under the plan of President Johnson, received the approval of the executive and judicial branches of the Government soon after the cessation of hostilities. Congress, however, not only withheld its a.s.sent, but, during its session in 1866, required as a condition precedent to a recognition of any one of these States, and the admission of its Representatives and Senators to seats, the adoption by its Legislature of the above-mentioned amendment. The question really involved in this amendment was the admission to citizenship and the ballot of the negroes in these States. It was the acknowledged fact that the authority to determine this question resided in the States severally and nowhere else. The amendment itself, in its second section, recognized the authority to grant or withhold the elective franchise as existing in the State governments.

This amendment was submitted to the Legislatures of the States immediately after its adoption by Congress in June, 1866, and by March 30, 1867, it had been ratified by twenty States, including West Virginia, Maryland, Missouri, and Tennessee, and rejected by thirteen, including Delaware and Kentucky, and eleven of the late Confederate States. There were thirty-four States at that time, and thirty had voted. A ratification by three fourths was required to make it valid.

When this amendment was presented for ratification to the Legislature of Virginia at its session commencing December, 1866, it was rejected in the Senate by a unanimous vote, and in the House by a vote of seventy-four to one. Meantime the Freedmen's Bureau was organized and put in operation in the State, but the military occupation continued, and the condition of affairs remained unchanged during the proceedings of Congress to construct its plan for subjugation.

After the vote of the States up to March, 1867, it was manifest that no real advance had been made in the extension of the franchise to the negro population of the States. In this position of affairs Congress, on March 2d, adopted an entirety new system of measures relative to the late Confederate States, The fiction upon which these measures were based is thus expressed in the preamble of the first act:

"_Whereas_, No legal State governments, or adequate protection for life or property, now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Florida, Texas, and Arkansas; and, _whereas_, it is necessary that peace and good order should be enforced in said States, until loyal and republican State governments can be legally established: therefore, _be it enacted_," etc.

These States were then divided into five military districts, and it was further provided:

"Until the people of the said rebel States shall by law be admitted to representation to the Congress of the United States, all civil governments that may exist therein shall be deemed provisional only, and shall be in all respects subject to the paramount authority of the United States, at any time to abolish, modify, control, and supersede the same, and in all elections to any office under such provisional governments, all persons shall be ent.i.tled to vote under the provisions of the fifth section of this act."

Thus these States, when held by military force as conquered territory, with the sovereignty of the people extinct, were not allowed to claim to possess any rights under the Federal Const.i.tution, or any other than such as might be granted by the will of the conqueror. It was a.s.serted that the right to regulate the elective franchise, recognized as belonging to the States in the Union, could not attach to those out of the Union, and having only provisional political inst.i.tutions. Congress then proceeded to declare, in the fifth section of the bill, the terms upon which a late Confederate State could become a member of the Union:

"SECTION 5. That, when the people of any one of said rebel States shall have formed a Const.i.tution of government in conformity with the Const.i.tution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for partic.i.p.ation in the rebellion or for felony at common law, and when such Const.i.tution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such Const.i.tution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such Const.i.tution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its Legislature elected under said Const.i.tution, shall have adopted the amendment to the Const.i.tution of the United States, proposed by the Thirty-ninth Congress, and known as Article XIV, and when said article shall have become a part of the Const.i.tution of the United States, said State shall be declared ent.i.tled to representation in Congress, and Senators and Representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State," etc.

The bill became a law, notwithstanding the veto of the President.

On March 4th a new Congress commenced its session, and on March 23d a supplement to the preceding act was pa.s.sed. It ordered a registration to be made of the qualified voters in each military sub-district of the State, an election to be held for the State Convention to draft a Const.i.tution for the State, and for delegates to such convention; and that such Const.i.tution should be submitted to the voters for adoption or rejection, and upon its adoption a State government should be organized, etc. The registration was required to be made of all citizens as defined by the "act to protect all persons in the United States in their civil rights," etc. Many disqualifications of voters, arising from partic.i.p.ation in the war, were also expressed. This act also became a law, notwithstanding the objections of the President.

It will be seen that this act contemplated two distinct governments in each of the ten States--the one military and the other civil.

Both were provisional, and both were to continue until the new State Const.i.tution was framed, and the State was admitted to representation in Congress. The two were to be carried on together, and the people were made subject to both and obliged to obey both. The law was next put in operation by const.i.tuting the districts, as follows: 1.

Virginia, commander, Major-General Schofield; 2. North Carolina and South Carolina, commander, Major-General Sickles; 3. Georgia, Florida, and Alabama, commander, Major-General John Pope; 4.

Mississippi and Arkansas, commander, Major-General Ord; 5. Louisiana and Texas, commander, Major-General Sheridan.

Previous to adjournment, on July 19, 1867, Congress pa.s.sed an additional supplement to the act of March 3d and the supplement of March 23d. It declared the intent and meaning of the previous acts to have been: that the civil governments of the ten States were not legal governments, and, if continued, were to be subject in all respects to the military commanders and the paramount authority of Congress. It made the acts of the military commanders subject only to the disapproval of the General of the Army, U. S. Grant, and authorized them to remove any person from office under the State government. It further defined the cla.s.ses disfranchised, and directed that no district commander should be bound in his action by any opinion of any civil officer of the United States.

The President vetoed the bill, and in his message said:

"Thus, over all these ten States, this military government is now declared to have unlimited authority. It is no longer confined to the preservation of the public peace, the administration of criminal law, the registration of voters, and the superintendence of elections; but, 'in all respects,' is a.s.serted to be paramount to the existing civil governments. It is impossible to conceive any state of society more intolerable than this, and yet it is to this condition that twelve millions of American citizens are reduced by the Congress of the United States. Over every foot of the immense territory occupied by these American citizens, the Const.i.tution of the United States is theoretically in full operation. It binds all the people there, and should protect them; yet they are denied every one of its sacred guarantees. Of what avail will it be to any one of these Southern people, when seized by a file of soldiers, to ask for the cause of arrest, or for the production of the warrant? Of what avail to ask for the privilege of bail when in military custody, which knows no such thing as bail? Of what avail to demand a trial by jury, process for witnesses, a copy of the indictment, the privilege of counsel, or that greater privilege, the writ of _habeas corpus_?"

Congress having thus completed its plan of operations, the crashing wheels of subjugation began to move forward. Let us proceed with the narration of affairs in Virginia.

On the appearance of Major-General Schofield at Richmond, all the proceedings of the so-called civil government, for the organization and restoration of the State to the Union, at once ceased, and he a.s.sumed command. A board of army officers was named by the commanding General for the purpose of selecting suitable persons for appointment as registering officers throughout the State. In making the selections, the preference was given, first, to officers of the army and of the Freedmen's Bureau, on duty in the State; second, to persons who had been discharged from the Federal army, after "meritorious" services during the war; third, to "loyal" citizens of the county or city where they were to serve. On April 2d an order appeared from the major-general, suspending all elections, whether State, county, or munic.i.p.al, "under the provisional government,"

until after the registration was completed. A lecture on the "Chivalry of the South," advertised to be delivered in Lynchburg, was suppressed by the order of the post commander at that place. A warning was given by the major-general to the editor of the Richmond "Times," which said, "The efforts of your paper to foster enmity, create disorder, and lead to violence, can no longer be tolerated."

On the refusal of five magistrates of the Corporation Council of Norfolk to receive the testimony of a negro, they were arrested on a process issued under the Civil Bights Bill, and held to bail to appear before the District Court. All armed organizations in the State were disbanded. Inflammatory meetings of freedmen and those who sought their political alliance were held in different parts of the State.

Military commissioners were appointed over sub-districts for the suppression of disorder and violence, for the protection of all persons in their so-called rights of person and property, and clothed with all the powers of justices of a county or police magistrates of a city. The State was also divided into sub-districts, and commanders appointed over the same. These officers were empowered to exercise a general supervision over the military commissioners, and to furnish them, when necessary, with sufficient military force to enable them to discharge their duties. Further orders relative to the qualification of voters were issued by the major-general, in which it was declared that "all persons who voluntarily joined the rebel army, and all persons in that army, whether volunteers or conscripts, who committed voluntarily any hostile act, were thereby engaged in insurrection or rebellion; and all who voted for the ordinance of secession, gave aid and comfort to the enemy. Also all who voluntarily furnished supplies of food, or clothing, arms, ammunition, horses, or mules, or any other material of war, partic.i.p.ated in the rebellion," and were disfranchised. The whole number registered was 116,982 whites and 104,772 blacks. The vote for the Convention was 14,835 whites and 92,507 blacks; against the Convention, 61,249 whites and 638 blacks.

The Convention a.s.sembled on December 3d and adjourned on April 17, 1868. The Bill of Eights adopted declared that--

"The State shall ever remain a member of the United States of America, and the people thereof a part of the American nation, and all attempts, from whatever source, and upon whatever pretext, to dissolve said Union, or to sever said Union, are unauthorized, and ought to be resisted with the whole power of the State.