On the capture of Nashville, on February 25, 1862, Andrew Johnson was made military governor of Tennessee, with the rank of brigadier-general, and immediately entered on the military duties of his office. The will of the Governor was the supreme law. Public officers were required to take an oath of allegiance to the United States Government, and on refusal were expelled from office. Newspapers were suppressed and their offices closed. Subsequently the offices were sold out under the provisions of the Confiscation Act. All persons using “treasonable or seditious” language were arrested and required to take the oath of allegiance to the Government of the United States, and to give bonds for the future, or go into exile. Clergymen, on their refusal to take the oath, were confined in the prisons until they could be sent away. School-teachers and editors, and finally large numbers of private citizens, were arrested and held until they took the oath. Conflicts became frequent in the adjacent country. Murder and the violent destruction of property ensued.
On October 21, 1862, an order for an election of members of the United States Congress in the ninth and tenth State districts was issued. Every voter was required to give satisfactory evidence of “loyalty” to the Northern Government. Two persons were chosen and admitted to seats in that body.
That portion of the State in the possession of the forces of the United States continued without change until the beginning of 1864. Measures were then commenced for an organization of a State Government in sympathy with the Government of the United States. These measures were subsequently known as the process for “State reconstruction.” The Governor issued his proclamation for an election of county officers on March 5th, to be held wherever it was practicable, in the various counties of the State. “It is not expected,” says the Governor, “that the enemies of the United States will propose to vote, nor is it intended that they be permitted to vote or hold office.”
The election was a failure. For a time all further efforts at reconstruction were suspended. An attempt was made, at the end of 1864, to obtain a convention to amend the State Constitution, and, without any regular authority, a body assembled, which adopted amendments. These were submitted to the voters and declared to be ratified by a vote of 25,000. The vote of the State in 1860 was 145,000. Slavery was abolished, and other changes were made; so-called State officers were elected; and this body of voters was proclaimed as the reconstructed State of Tennessee.
The next attempt to guarantee “a republican form of government” to a State was commenced in Louisiana by the military occupation of New Orleans, on May 1, 1862. The Federal forces were under the command of Major-General Benjamin F. Butler; and Brigadier-General Shepley was appointed military governor of the State. Under this rule, in Louisiana, aged and peaceful citizens, unresisting captives, and non-combatants were confined at hard labor, with chains attached to their limbs, and held in dungeons and fortresses; others, for selling medicine to the sick soldiers of the Confederacy, were subjected to a similar degrading punishment. The soldiers of the invading force were incited and encouraged by general orders to insult and outrage the wives and mothers and sisters of the citizens; and helpless women were torn from their homes and subjected to solitary confinement, some in fortresses and prisons — and one, especially, on an island of barren sand, under a tropical sun — and were fed with loathsome rations and exposed to vile insults. Prisoners of war, who surrendered to the naval forces of the United States on the agreement that they should be released on parole, were seized and kept in close confinement. Repeated pretexts were sought or invented for plundering the inhabitants of the captured city, by fines levied and collected under threats of imprisonment at hard labor with ball and chain. The entire population was forced to elect between starvation by the confiscation of all their property or taking an oath against their conscience to bear allegiance to the invader. Egress from the city was refused to those whose fortitude stood the test, and even to lone and aged women and helpless children; and, after being ejected from their houses and robbed of their property, they were left to starve in the street or subsist on charity. The slaves were driven from their plantations in the neighborhood of New Orleans until their owners consented to share their crops with the commanding general, his brother, and other officers. When such consent had been extorted the slaves were restored to the plantations and compelled to work under the bayonets of a guard of United States soldiers. Where that partnership was refused, armed expeditions were sent to the plantations to rob them of everything that could be removed; and even slaves too aged and infirm for work, in spite of their entreaties, were forced from the homes provided by their owners, and driven to wander helpless on the highway. By one order (No. 91) the entire property in the part of Louisiana west of the Mississippi River was sequestered for confiscation, and officers were assigned to the duty, with orders to gather up and collect the personal property, and turn over to the proper officers, upon their receipts, such of it as might be required for the use of the United States Army; and to bring the remainder to New Orleans, and cause it to be sold at public auction to the highest bidder. The African slaves, also, were not only incited to insurrection by every license and encouragement, but numbers of them were armed for a servile war. In many instances the officers were active and zealous agents in the commission of these crimes, and no instance was known of the refusal of any one of them to participate in the outrages.
Another example was the cold-blooded execution of William B. Mumford, on June 7th. He was an unresisting and non-combatant captive, and no offence was ever alleged to have been committed by him subsequent to the date of the capture of New Orleans. He was charged with aiding and abetting certain persons in hauling down a United States flag hoisted on the mint, which was left there by a boat’s crew on the morning of April 26th, and five days before the military occupation of the city. He was tried before a military commission, sentenced, and afterward hanged.
On December 15, 1862, General Banks took command of the military forces, and General Butler retired. Early in August the military Governor had attempted to set on foot a judicial system for the city and State. For this purpose he appointed judges in two of the District Courts, of which the judges were absent, and authorized a third, who held a commission dated anterior to 1861, to resume the sessions. This was an establishment of three new courts, with the jurisdiction and powers pertaining to the courts that previously bore their names, by a military officer representing the Executive of the United States. These were the only courts within the territory of the State held by the United States which claimed to have civil jurisdiction; but this jurisdiction was limited to citizens of the parish of Orleans as against defendants residing in the State. As to other residents of the State, outside of the parish of Orleans, there was no court in which they could be sued. In this condition several parishes were held by the United States forces.
It was therefore necessary to take another step to enable the military power to administer civil affairs. It involved a complete subversion of the fundamental principles of social organization. According to this advanced step — with absolute disregard of the fundamental principle that the military shall be subject to the civil authority — the military absorbs by force the civil functions, fixes at will its rules and modes of action, and determines the limit of its power.
This attempt to administer civil affairs on the basis of military authority involved the subversion of fundamental principles. The military power may remove obstacles to the exercise of the civil authority; but when these are removed it cannot enter the forum and sit in judgment on civil affairs any more than the hawk can become a dove by assuming her plumage.
However, the next step was taken, and an order from the President of the United States was published, creating a “Provisional Court,” constituting it a court of record, “with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty, and particularly with all such powers and jurisdiction as belong to the District and Circuit Courts of the United States.”
A New York lawyer was appointed judge, with power to appoint the necessary subordinate officers — “these appointments to continue during the pleasure of the President, not extending beyond…the restoration of the civil authority in that city [New Orleans] and the State of Louisiana.”
The Constitution of the United States says: “The judicial power of the United States shall be vested in one Supreme Court, and in such Supreme Courts as the Congress may from time to time ordain and establish.” This Provisional Court was neither ordained nor established by Congress; it had not, therefore, vested in it any of the judicial power of the United States. Neither does the Constitution give to Congress any power by which it can constitute an independent State court within the limits of any State in the Union, as Louisiana was said to be.
This court, therefore, was a mere instrument of martial law, constituted by the commander-in-chief of the United States forces, without any of the reasons by which such courts are justified; for to warrant the establishment of this court no authority was to be found either in the Constitution of the United States or outside of it.
When called upon to state any just ground 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; for it had urged the same plea to justify the passage of the Confiscation Act. The judiciary has observed the silence of acquiescence. Thus the doctrine of necessity — the rule that in the administration of affairs, both military and civil, the necessity of the case may and does afford ample authority and power to subvert or to suspend the provisions of the Constitution, and to exercise powers and do acts unwarranted by the grants of that instrument — has apparently become incorporated as an unwritten clause in the Constitution of the United States.