Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 2
Usurpation in the Civil War and Reconstruction Period

“When dangers thicken, the only device may be the Roman one of a temporary dictatorship. Something like this happened in the War of Secession, for the powers then conferred upon President Lincoln, or exercised without Congressional censure by him, were almost as much in excess of those enjoyed under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul.”

James Bryce

“In the plenitude of their powers as absolute rulers the generals” (of the reconstruction period) “were above the constituent assemblies of the inchoate new states as distinctly as they were above the governmental organs of the expiring old states.”

Professor Dunning

“Those pitiless years of reconstruction! worse than the calamities of war were the ‘desolating furies of peace.'”

Bishop Galloway

THERE is, in the mind of the younger generation which has come up since the war, a tradition of an attack on the Union by men who believed in state rights. By reason thereof state rights, in their mind, has a bad name. The usurpation of power by the Government in our day is occurring in times of peace and so secretly and so all-pervasively that men have become accustomed to it, and are not moved as they were by such violent wrestings of liberty from large bodies of people as occurred in many states during Reconstruction days. The period of the Civil War and Reconstruction, better than any other in our history, shows these violent usurpations of power. During the war, necessity took the place of the Constitution, and we see the written guarantees of liberty grow dim in the smoke of battle. During the Reconstruction period, however, with no necessity to justify their action. Congress established a despotism in nearly every one of the Southern States, which, when well known and fully understood by the younger generation of today, will be condemned by them for its cruel injustice.

There is no statute of limitations in the law of cause and effect, and the usurpations of the war and Reconstruction days are the fundamental causes of the existing conditions today. Not only the clear, unquestioned acts of usurpation of that period deserve examination, but the origin of the great centralizing forces coming out of protective tariffs and national banks and a paper currency and other legacies of like kind from the Civil War are worthy of the reader’s attention. It is not a pleasant duty to recite the acts that make the darkest picture in all American history, and nothing short of averting usurpation on the part of our National Government today can justify such a recital.

Early in the Civil War President Lincoln by proclamation authorized General Scott to suspend the writ of habeas corpus at any point on the military line between Philadelphia and Washington. The portion of the country covered by the proclamation was not in insurrection, and the publishing of the proclamation left hundreds of thousands of people in a region where there was no war without any protection from this writ. There was much doubt as to whether the President, under the circumstances, had a right to suspend its operation. Story and other writers upon the Constitution had maintained that Congress alone had the right to suspend the writ and the United States Supreme Court had indicated its opinion to that effect.25 In 1807, when an act was proposed suspending the writ in connection with the Burr conspiracy, there was no intimation in Congress or the country that the power was in the President.26

Without warrant and without any sworn statement, but merely upon an order of the Secretary of State or the Secretary of War, hundreds of men were arrested for the expression of words construed as tending to inflame party spirit or as sympathetic with the Southern cause, and hurried away to Forts Lafayette, Warren, McHenry, Delaware, Mifflin, Old Capitol Prison, penitentiaries and military camps in the different parts of the country. So many arrests were being made that an attempt was made to test the validity of the President’s action. In 1861 one John Merryman was held in detention at Fort McHenry by General George Cadwalader, under one of these orders of Secretary Seward, on a charge of treason. An application was made to Judge Taney, Chief Justice of the United States Supreme Court, for a writ of habeas corpus requiring the production of the prisoner before the judge on the ground that he was wrongfully detained. Chief Justice Taney signed the writ commanding General Cadwalader to produce Merryman before him and show cause for his detention. When the marshal of the United States Court presented the writ to General Cadwalader at the fort, Cadwalader refused to obey it, and when Taney issued a body attachment against him the general shut the marshal out of the fort. Thereupon the chief justice wrote an opinion as to the law, which was sent to the President, holding that the prisoner was entitled to his liberty and should be discharged and that Congress alone had the right to suspend the writ of habeas corpus. Lincoln ignored this, but later, in a message to Congress, asserted his right to suspend the writ of habeas corpus without limitation or interference.

On September 24, 1862, the President issued a proclamation ordering that all persons discouraging voluntary enlistments, resisting military drafts, guilty of any disloyal practices, or of offering aid and comfort to the rebels, should be subject to martial law and liable to trial by a military commission, and that the writ of habeas corpus should be suspended in respect to all such persons arrested or held by military authority. It is to be observed that this last order of the President applied to all parts of the North where there was no insurrection, yet it caused the arrest of men without warrant, detained them without a hearing, and convicted them of treason and murder by a court-martial without a jury and without observing a single one of the guarantees in the Bill of Rights of the Constitution.

The writ of habeas corpus was secured to English people by the Great Charter which, Mr. Hallam tells us, was sent to all the sheriffs of England, was kept posted in each cathedral and church, and publicly read twice a year, accompanied by solemn sentences of excommunication against all who should infringe it, and provided that “any judgments contrary to these provisions should be invalid and ‘holden for naught.'” This charter, made sacred by these sanctions and handed down for five hundred years by the English people, was deliberately disregarded. Thousands of men, without any evidence whatever of treasonable words on their part, were dragged from their homes to the different fortresses of the government upon a mere telegram from Washington to a United States marshal or even a police officer of a state. The newsboys of the street were arrested for the offense of selling newspapers which some military commander disapproved. Old men of seventy were dragged from their beds at midnight and hurried to prison by squads of soldiers. Many loyal men of the North were shocked by these brutal arrests, and all classes of men rose up in protest against such usurpation of power.27 Even John Sherman wrote to his brother of “a wanton and unnecessary use of power to arrest without trial.”

There lies before me as I write, a book under the title of “The American Bastile,” written by one John A. Marshall, bearing date of August, 1869, in which he describes the circumstances of the arrest of seventy citizens imprisoned in these fortresses from all of the Northern States except New Hampshire, Rhode Island, and Wisconsin. Among them were foreign ministers, United States senators, members of Congress, members of state legislatures, judges, lawyers, ministers, doctors, farmers, editors, merchants, and men from all the other walks of life. The details connected with the arrests of these men, as described by him, are as terrible as those accompanying the state arrests in Russia today, and one draws back from his vivid descriptions with doubt lest perhaps Mr. Marshall’s experiences caused him to exaggerate the conditions.

But we are not dependent upon his statements for the facts. A few years ago the United States Government published the records of these different fortresses showing these arrests and the names of many of the prisoners, the time when they were brought to the place of imprisonment, the records made by the keepers of the fortresses, and the correspondence between the relatives and Secretary Seward.28 These records, by the Government’s own statement, show that hundreds of simple-minded men living in country villages in different parts of the United States had unwittingly spoken a word now and then which political adversaries had construed as evidence of treasonable intent. Information was given to the War Department or to the Department of State, and the matter was laid before some United States marshal or police officer, for all police officers of any state or town or district were authorized to arrest and imprison. These published prison records have a most suspicious appearance. Descriptions are given of many of the men, but not their names. Even their residence in many cases is not disclosed. Nothing is said of the nature of their offenses. There, far away from their homes, they were imprisoned by the government for months, until the influence of their Congressman or of other powerful friends secured their release. The practices of Russia today of casting men into solitary dungeons and keeping them for months without trial, and of finally trying them at night by drumhead court-martials and condemning them without any of the safeguards of English law, is merely a repetition in almost every feature of the action of our National Government toward its citizens in the Civil War.

Such a storm of indignation arose from the people in every part of the North at these arrests that on March 3, 1863, Congress authorized the President during the Rebellion to suspend the privileges of the writ of habeas corpus in any case throughout the United States or any part thereof. This authorization provided for the discharge of any person held in duress, upon the failure of the Federal Jury sitting in the district where the imprisonment occurred to indict at its next session after the arrest. To secure action on the part of the grand juries and give them opportunity to investigate the cases, it was provided that the officials having charge of the prisoners should present lists to the court in each judicial district of the United States. In case of failure to indict them it was provided that they be released. But few indictments were ever obtained, the arrests proving unwarrantable in nearly all of the cases.

In connection with the act of March 3, 1863, an act of indemnity making the prior illegal acts of the President legal, and relieving him from all liability, was passed by Congress. It also provided that for every arrest caused by him in the future he should be free from legal liability. The military commissions with authority to try the people arrested were continued. The same act provided that in case an action was brought in any state court against an officer acting under an order of the President or his secretaries, to recover damages for an arrest or false imprisonment, the officer thus sued should have the right to apply to the United States Circuit Court in the same district in which the action was brought, and said court, by an order or writ, could remove the case to the United States Circuit Court to be tried there as if originally commenced therein. The United States Supreme Court, however, declared this law unconstitutional.29

On September 15, 1863, Mr. Lincoln proclaimed a general suspension of the writ of habeas corpus, limiting it to persons held as prisoners of war, spies, or aiders or abettors of the enemy. The words “aiders or abettors” were defined by him as follows: “He is to be an enemy who seeks to exalt the motives, character, and capacity of armed traitors; to magnify their resources, etc. He who overrates the success of our adversaries or underrates our own, and he who seeks false causes of complaint against our government, or inflames party spirit among ourselves and gives to the enemy that moral support which is more valuable to them than regiments of soldiers or millions of dollars.” United States deputy marshals and police officers continued to determine on their own judgment whether the citizens overrated the successes of the South or underrated the successes of the North. They continued to determine the “false causes of complaint” against the officers of our government, and hundreds more men were hurried to prison.

Finally, after the war had ended, and thousands of people had been arrested who lived far removed from the seat of war, the following case reached the United States Supreme Court, which determined that the Government had no right to arrest men in the North without warrant and to try them before military commissions. On August 13, 1864, Lambdin P. Milligan, a lawyer residing at Huntington, Indiana, delivered a political speech at a large meeting at Fort Wayne, Indiana. The speech criticised the National Government, and particularly Governor Morton of Indiana, who at that time was a candidate for reflection. On October 5, 1864, Milligan was arrested and taken to Indianapolis before Brevet Major General Hovey, military commandant of the district of Indiana. On the 21st of that month he was placed on trial before a military commission, being charged with conspiracy against the Government of the United States, offering aid and comfort to rebels, and of disloyal practices. He was found guilty and sentenced to death. He contended that the military commission had no authority to try him or condemn him, and thereafter petitioned a United States Court judge for a writ of habeas corpus. Upon denial, an appeal was taken to the Circuit Court, which, being divided upon the question of his right to the writ, certified the matter to the United States Supreme Court.

In December, 1866, the highest court of the nation, for the first time, had an opportunity of determining the right of the United States Government to make these arrests and try the persons arrested under military commissions in portions of the United States removed from the seat of war. Justice David Davis wrote the opinion on behalf of the court, holding that the military commission had no jurisdiction to convict Milligan, and said:

“It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, it is necessary to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws again have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a great usurpation of power. Martial rule can never exist where the courts we open, and in the proper and unobstructed exercise of their jurisdiction, it is also confined to the locality of actual war.”30

There was talk among the radical men of impeaching the judges, and John A. Bingham, a member of the House of Representatives, and a bitter partisan, said:

“Let us sweep away at once every appellate jurisdiction in all cases, if the court by virtue of its original jurisdiction usurps the power to decide political cases and defy a free people’s will.” Thaddeus Stevens, referring to the same case, said in the House of Representatives, “That decision, although in terms and purposes not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country.”

There is a story, one of the many attributed to Mr. Lincoln, in which he is reported to have said to his Secretary of the Treasury: “The South has violated the Constitution to break up the Union; I am ready to violate it to preserve the Union; and between you and me, Chase, before we get through this Constitution is going to have a tough time.”31 It is certain at least that he wrote to Mr. Hodges on April 8, 1864, “I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the Union. Right or wrong, I assumed this ground and now avow it.”32 There is no evidence that Lincoln himself ever personally ordered any of these arrests. The lovable character of Mr. Lincoln, his reconstruction of some of the Southern States upon liberal and humane terms, his last words of mercy toward the South, his sweet and gentle life and noble purposes, will endear him forever to the American people, and we review these acts of his administration only for the purpose of showing the danger of such usurpations of power.

In August, 1861, Congress passed an act known as the Confiscation Act. This act directed the President to cause the seizure of all the property of whatever kind belonging to specified classes of persons, namely: officers of the rebel army and navy, officers of the civil administration of the Southern Confederacy and of its so-called Federal State judges, and persons owning property in a loyal state who should give aid and comfort to the Rebellion. The property so seized was to be proceeded against by action in rem in the United States courts, and the proceeds were to be used for the support of the army of the United States. Of this act. Professor Dunning says:33 “This act assumed the power in Congress to deprive several millions of persons of all their property, and this by simple legislative act. By the theory of our Constitution, such power must be granted by the organic law, or be inferable from some clearly granted power. There was no claim of an express grant. By implication, the power was held to be deducible from the clauses authorizing Congress ‘to declare war,’ ‘to make rules concerning captures on land and water,’ ‘to provide for calling forth the militia to … suppress insurrections,’ and finally, ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.’ On the other hand, the Constitution contains the following prohibitions: ‘No bill of attainder shall be passed’; ‘no person shall be … deprived of . . . property, without due process of law; nor shall private property be taken for public use without just compensation ‘; and finally, ‘no attainder of treason shall work . . . forfeiture except during the life of the person attainted.’ The exercise of authority under the grants enumerated involved of necessity the violation of these prohibitions. Respect for both at the same time was inconceivable.”

Everyone acquainted with the Civil War who has carefully watched events since that time must have seen a gradually accelerated movement of the centralization of government commencing at that time. This was brought about by the government’s issue of legal-tender notes, by the creation of our national banking system,

and especially by the protective tariff then instituted and since continued. Hamilton, in his masterly statement on the currency, said that bills of credit and paper emissions were expressly forbidden to the states by our present Constitution, and that the spirit of that prohibition extended to the National Government. Notwithstanding that it was the intent of the framers of the Constitution to prohibit the National Government, as well as the states, from making paper money legal tender, Congress, in 1862, declared such paper lawful money and a legal tender in payment of public and private debts, and authorized the issue of $150,000,000 in notes, our present greenbacks. Never before had a statute of the United States made anything but gold and silver coin a legal tender in payment of debts. The United States Supreme Court, at a later date, in a suit where these notes had been tendered and rejected in payment of a debt existing before the war, held that the act making them legal tender was unconstitutional; but afterwards, when the court was differently constituted, reversed its own decision. Without discussing further at the present time the constitutionality of this issue, all will acknowledge that the exercise of the power has made the government all powerful in banking and commercial affairs. When a government issues the money of the country and has the tempting power to increase the amount for use in aiding private bankers, such power makes the government almost omnipotent.

On February 5, 1791, the first national bank was established. At that time there were only three banks in the United States, and it was contended that it would secure the collection, transportation, and circulation of the national revenue from one part of the country to another. This was thought to be a sufficient justification for its creation. It was proposed in the Constitutional Convention to insert a provision for the creation of such a corporation, but this was opposed by James Madison and many of the other members, and was defeated.34 When the question of the renewal of the bank charter came up in 1810, Henry Clay declared it as his opinion that the Constitution conferred no power upon Congress to charter a bank or to renew its charter. Clay well said, “Is it to be imagined that a power so vast would have been left by the wisdom of the Constitution to doubtful inference? … If, then, you could establish a bank to collect and distribute revenue, it ought to be expressly restricted to the purposes of such collection and distribution.”35

Now the original bank was permitted for the restricted purposes of the collection and distribution of the moneys of the United States Government, which at that time were collected at different points throughout the whole country. Because of the small number of banks, it was regarded as a necessary means of carrying on the fiscal powers of the government. When the national banking system was established during the war there were ample banking facilities throughout the country. The National Government, however, by passing an act imposing a tax of ten per cent upon the circulation of these state banks, actually destroyed them and substituted its vast banking system, now counting upward of fifteen thousand banks scattered in every city and village of the land.36 It is true that the United States Supreme Court, in the case of McCulloch v. Maryland, sustained the constitutionality of the act renewing in 1816 the charter of the bank of the United States. But the charter of this bank was renewed as the fiscal agent of the government at a time when there were comparatively few banks. The national banking system, however, was created, as we have said, to supplant the State banks, and did supplant them by taxing their circulation out of existence. The result of the national banking act was the creation of thousands of banks, not a single bank.

Senator Beveridge, of Indiana, in The Reader of March, 1907, says: “State rights denied the existence of this power, ‘the power of the general government to create a national bank,’ and it seemed that state rights had the best of the argument, contending that the national government has only the enumerated powers, and has no power except such as is expressly delegated to it by the Constitution.” However this may be, the creation of thousands of banks scattered all over the land more than any other one cause has centralized power in the National Government. Once admit the authority to create corporations by the government, and the other authority to interfere with the internal affairs of the states through the power to regulate commerce, and it would seem to follow that Congress may enact a general law for the creation of as many corporations as promoters desire, may control railways and all means of intercommunication and reduce the states to insignificance.

Under the cover of levying customs duties at seaports, Congress, by the war tariffs, took control of the whole manufacturing industry of the country. About every manufacturer in the whole land is now looking to Congress for the creation of prosperity by obstructing foreign commerce through high protective tariffs. Under the power to regulate commerce the government destroys foreign imports or cripples them to such an extent as will benefit the few thousands who manufacture the same kind of goods in our own country. This is done at the expense of tens of millions who buy them at enhanced prices, and it is the exercise of the most despotic power conceivable on the part of government. In this way the United States Government has come into close touch with these manufacturing interests all over the land, and is actually fixing the price of the necessaries of life for eighty millions of people. It exercises the power of determining the price of every shred of clothing which a man wears, of every piece of furniture in his home, of every piece of lumber, every nail, every piece of glass that enters into the construction of his house. Nobody would doubt that a law attempting to fix the prices at which the domestic manufacturer could sell his product would be unconstitutional, yet the Government indirectly, by means of its taxing power, and its regulation of foreign commerce, passes a law which enhances the price of the necessaries of life to everyone. This despotic power in government, more than anything else, has brought about corruption. It has turned the eyes of fifty thousand manufacturers to Washington for governmental privilege. It is simply a usurpation of power on the part of the government exercised for the benefit of the few at the expense of the remainder of its citizens.

President Lincoln stated that, in his opinion, it was impossible for a state to secede from the Union. He reaffirmed his statement in his first message to Congress, and in his Non-Intercourse Proclamation of August 16, 1861, declared, “Not the states but the inhabitants of the states were in insurrection against the United States.” The theory which he maintained throughout the war and down until his death was that the state was indestructible either through its own act or through the act of the United States Government. During his lifetime he established a state government in Louisiana and one or two other of the Southern States, and he maintained until the day of his death that the states were in the Union and had never been out of the Union. In the last speech which he ever made, April n, 1865, four days before his death by assassination, he said: “I am much censured from some supposed agency in setting up and seeking to sustain the new state government of Louisiana. In this, I have done just so much as, and no more than, the public knows.”

Never once in diplomatic correspondence or in proclamations or in any act of Congress during the war, did the Federal Government directly admit the existence of a state of war in the South. The carrying of mails and the performance of all governmental functions in the South continued during the war so far as the Government was able to carry them on. At the close of the war the United States courts commenced to sit in the circuits of the South and the United States Supreme Court commenced to hear appeals from the Southern States. Lincoln’s view of the indissoluble character of the Union was sustained by the United States Supreme Court. Chief Justice Chase, speaking for the Court, said of the ordinances of secession: “They were utterly without operation in law. The obligations of the state, as a member of the Union and as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the state did not cease to be a state, nor her citizens to be citizens of the Union.”37

President Johnson adopted the attitude of Lincoln toward the Southern States and tried to carry out the dead President’s ideas. He established a state government in each of the Southern States. The thirteenth amendment to the Constitution was submitted to many of these states and was approved by them, so that it would seem that their legality was recognized by Congress. The temporary organization of the Southern States under the proclamations of Presidents Lincoln and Johnson were permitted to remain in force until the spring of 1867. The Republican Party in the House of Representatives, led by Thaddeus Stevens, openly admitted that they desired to reconstruct the Southern States so as to destroy the Democratic majorities which had existed there before the war. In the language of Mr. Stevens, they maintained that the Southern States were only “dead carcasses lying within the Union. . . .

They have torn their constitutional states to atoms and built on their foundations fabrics of a totally different character. Dead men cannot raise themselves. Dead states cannot restore their own existence ‘as it was.’ Whose especial duty is it to do it? In whom does the Constitution place the power?”38 And he concluded that that power was in the Congress and that the Southern States might be treated as subject provinces and new states created therein.

Accordingly, Mr. Stevens, as leader of the House, with a rancor of hatred never exceeded, devised a law for the reconstruction of the Southern States as odious for tyranny and cruel injustice as was ever conceived by the perverse intelligence of man. On March 2, 1867, Congress passed, over the President’s veto, a bill entitled “An Act to Provide for the More Efficient Government of the Rebel States.” It was, however, an act for the more thorough military subjection of the Southern States and is known as The Reconstruction Act. This act recited that no legal state government or adequate protection of life and property existed in the states of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and it provided that these states should be divided into five military districts under the command of officers of the army, assigned thereto by the President. Each of these commanders was to have under his control troops enough to enforce his authority. They were endowed with unlimited power over all the people of each district, the will of the military commander taking the place of the law. He could declare anything a crime which he chose to call so, and condemn and punish whomsoever he pleased. He was empowered to arrest the people of his department without warrant, accusation, or proof of probable cause. He could have them tried before local magistrates or before himself. He was empowered to remove all local magistrates if he desired. If, without his permission, a state court presumed to exercise legal jurisdiction over the trial of a person arrested he could break up the trial and punish the judge and the jurors.

In vetoing the bill, President Johnson said: “Such a power has not been wielded by any monarch in more than five hundred years. In all that time no people who speak the English language have borne such servitude.” The States of Mississippi and Georgia hastened to commence actions in the United States Supreme Court, asking the court to enjoin the President from the enforcement of this unconstitutional law which they declared would absolutely destroy the existence of their states, but the court held that it had no jurisdiction to enjoin the action of the President.39

The supplementary act of reconstruction of July 19, 1867, provided that the commanders of any district might remove any state, municipal, or other official and fill his place subject only to the disapproval of the general of the army; and it was made a duty of the commander “to remove from office all persons who are disloyal to the government of the United States or who use their influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of this act and the acts to which it is supplementary.” The act provided that no commander should be bound by any opinion of any civil officer of the United States. General Schofield was assigned to the first district, which included Virginia; General Sickles to the second district of North and South Carolina; General Pope to the third district of Georgia, Alabama, and Florida; General Ord to the fourth district of Mississippi and Arkansas, and General Sheridan to the fifth district of Louisiana and Texas.

Now observe how some of these generals ruled their departments. General Sickles prohibited the manufacture of whisky in North Carolina, saying that the grain was needed for food, and he prohibited the hotel keepers from selling intoxicating liquor; he created a trustee of Newbern Academy, enacted stay laws in North and South Carolina, and abolished imprisonment for debt; suspended the sale of property upon execution for liabilities contracted before December 19, 1860, and suspended the foreclosure of mortgages for one year. In his mightiness he decreed that the wages of agricultural labor were liens upon the crops; created homestead exemptions for those having families dependent upon their labor; abolished distress for rent; ordered that the currency of the United States be recognized as legal tender; decreed that absent debtors be exempted from attachment, and forbade bail in suits brought to recover ordinary contract debts. He prohibited discrimination in public conveyances between citizens because of color, and decreed that anyone injured by such discrimination had a right of action for damages. He acted as a reviewing court and set aside a decree of the South Carolina Court of Chancery providing that the portion of a fund raised to remount a Confederate cavalry force in 1865 remaining unused was to be returned to the contributors, and he judicially determined that the money belonged to the United States.

General Pope removed the mayor, the chief of police, and other municipal officers of Mobile, and filled their places with “efficient Union men”; decreed that the printing patronage in his department should be given only to the newspapers that did not oppose reconstruction; allowed Republican candidates for office in his department to act as election officials, charged with the supervision of the voting in which they had an interest, and authorized them to receive the votes of persons who were not registered in the precinct in which they offered their votes.

General Sheridan, at New Orleans, removed Governor Wells, of Louisiana, and appointed another man as governor in his place; decreed that colored men should be accepted as jurors; abolished the Louisiana Levee Board and assigned its duties to commissioners of his own appointing. He also abrogated an act of the Texas Legislature arranging the judicial districts in that state, upon the ground that the act, as he believed, had been passed for the purpose of legislating two Union judges out of office.

General Ord suspended proceedings looking to the sale of an estate on account of a deed of trust for money due for the purchase of negroes; commanded that illicit stills and their products be sold for the benefit of the poor on the ground that “poverty increased where whisky abounds”; suspended until the end of the year 1867 the judgment sale of lands under cultivation, crops, or agricultural implements, in actions arising before January 1, 1866; and caused the arrest and conviction by court-martial of W. H. McCardle, the editor of a Vicksburg newspaper, on the charge that he had published articles in his paper to incite the people to a breach of the peace and to impede reconstruction.40

McCardle procured a writ of habeas corpus from Judge Hill of the United States District Court. Upon the return thereof General Ord set forth that he held the prisoner by authority of the acts of Congress known as the Reconstruction Acts, and the court dismissed the writ. McCardle appealed from the decision to the Circuit and then to the Supreme Court of the United States, which denied a motion to dismiss his appeal and heard the case argued. The case, inasmuch as it involved the constitutionality of the Reconstruction Acts, was argued very fully before the United States Supreme Court between the second and ninth days of March, 1868. Mr. Rhodes says:41 “The constitutionality of the Reconstruction Acts was involved, and as five out of the nine Supreme Court judges believed them unconstitutional (so an apparently well-founded report ran) the Republicans in Congress were much alarmed. The House passed a bill requiring- two thirds of the judges to concur before any law should be deemed invalid, but this was never brought to the Senate from its Judiciary Committee. Later, however, the two Houses agreed on an act passing the same over the President’s veto (March 27, 1868) which, though general in its terms, took away from the Supreme Court its jurisdiction in the McCardle case and the appeal was therefore dismissed.”42

This method of heading off appeals was a common one in Reconstruction days. About every important act passed in that period when it once reached the United States Supreme Court was declared unconstitutional. The Tenure of Office Act was another illustration of such methods, practically taking away from President Johnson his right of removal from office. He removed Stanton, Secretary of the War Department, putting General Thomas in his place. An altercation and arrest followed, and an effort was made by the attorney-general to raise the question of the constitutionality of this act by appeal, but the complaint of Secretary Stanton was withdrawn and the effort to test its constitutionality thus destroyed.

In 1789 the leading members of the House of Representatives discussed at great length the power of the President of the United States to remove a Secretary of the Department of Foreign Affairs from office without the consent of the Senate, and it was determined, by a vote of thirty-four to twenty, that the President had full power to remove without the concurrence of the Senate.43 The determination then made was followed until the administration of President Johnson, and then the Tenure of Office Act was passed for the purpose of depriving him of the right of removal. Since that time the right has been acknowledged and today is unquestioned.

The Reconstruction Act provided for the election of a constitutional convention, and the formation of a constitutional government in each of the Southern States, excluding the greater part of the white voters of those states from taking part in the formation of their government. Then Congress made their adoption of the fourteenth amendment to the Constitution a condition of its receiving as members the representatives of the states which had framed constitutions.

Congress, in April, 1866, passed what was known as the Civil Rights Act. On March 31, 1870, it passed what was known as the Enforcement Act; again on February 28, 1871, a third act amending the Enforcement Act; and on April 20, 1871, a fourth act amending the Enforcement Act. All of these laws were unconstitutional. The last amendment provided as follows: “If two or more persons in any state or territory conspire or go in disguise upon the highway or upon the premises of another for the purpose of depriving, either directly or indirectly, any persons or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws; he or they are guilty of a misdemeanor and, upon conviction, liable to a fine of not less than $500 or greater than $5,000, and imprisonment for not less than six months nor more than six years, or both said fine and imprisonment.”

This law was known as the Ku Klux Law, and it sought to give to the National Government the power to execute the criminal laws in each of the states, especially in each of the Southern States where it was alleged that the Ku Klux were committing depredations upon the property and taking the lives of colored people. For eleven years this continued to be enforced. Finally, a case deciding their constitutionality reached the United States Supreme Court, and that court held that the law was not directed to the act of a state, but only against the acts of individuals gathering for the commission of crime, and that the fourteenth amendment to the Constitution did not apply to such a condition; that the law was directed merely against ordinary crime in the state, of which the state courts had exclusive jurisdiction, and that the law was unconstitutional and void.44

On March 1, 1875, General Grant approved a bill known as the Civil Rights Bill, the first bill mentioned above being unconstitutional. Its object was to secure to negroes equal rights in inns, public conveyances, and places of public amusement, and to prevent them from being deprived of the right of sitting on juries. Eight years later the United States Supreme Court declared the first and second sections of the act null and void, holding that so long as a state did not pass a law depriving the negro of these rights the Supreme Court could not interfere, since the prohibition of the fourteenth amendment was directed against a state which discriminated against a citizen for any reason, and deprived him of the civil rights which other citizens enjoyed; and that, under the fourteenth amendment, Congress had no authority to attempt to regulate the rights of the citizens of the states, thus leaving the whole question of the social rights of a citizen where it had ever belonged — to the state governments.45

The constitutions in many of the states, reorganized by carpetbag politicians, contained many provisions intended to prevent the Southern leaders, who had had connection with the war, from even earning their livelihood. In the Constitution of Missouri there was a provision to the effect that every person who had aided and sympathized with the South was incapable of holding any office of honor or profit or trust in the state. No such person could be an officer, trustee, or manager of any public or private corporation, he could not act as a professor or teacher in any educational institution or in any common school, nor could he hold any real estate or other property in trust for any church, religious society, or congregation. An oath of loyalty was required as a condition precedent to his exercising the calling of a bishop, priest, deacon, clergyman, or lawyer, such oath being that he had never directly or indirectly done any of the acts of disqualification against which the amendment was leveled.

Sixty days after this Constitution took effect no person was to be allowed, without first taking this oath, to practice as attorney at law, or to act as priest, deacon, minister, clergyman, etc., of any religious persuasion. If he continued without taking such oath after the sixty days he was liable, on conviction thereof, to be punished by a fine of not less than $500, or imprisonment of not less than six months in the county jail, or both, at the discretion of the court. The Rev. Mr. Cummings, a priest of the Catholic Church and a citizen of Missouri, was indicted and convicted in the Circuit Court of Pike County for continuing his work as priest without taking such oath. He was sentenced to pay a fine of $500 and to be committed to jail until the fine and the costs were paid. On appeal from this decision to the United States Supreme Court, the question was presented whether this act was not in fact a bill of attainder, and whether it was not obnoxious to that clause of the Constitution of the United States which prohibited a state from passing such bill of attainder or ex post facto law. That court held the law ex post facto in its nature and reversed the decision of the state court.46

The Constitution provides that the times, places, and manner of holding the elections for senators and representatives shall be prescribed in each state by the legislature thereof, but that Congress at any time may alter such regulations, except as to places of choosing the senators. No clause in the Constitution created so much opposition before the conventions of the adopting states. The conventions in North Carolina, South Carolina, Virginia, Massachusetts, Rhode Island, New Hampshire, and New York strongly remonstrated against it, but the people were assured that the National Government would never avail itself of the provision. For many years, however, after the Civil War and until well down in the eighties. Federal supervisors and marshals were empowered by a statute of Congress to supervise elections in every state where members of Congress were to be elected. They supervised the polls in New York and many other states where assemblymen, mayors, state and city judges were being elected. They often examined the ballots for these state officers, claiming that they were authorized to be present at the opening of all the boxes, those for state and local officials as well as those for Congressmen. By the provisions of the statute authorizing this provision the United States District Court could appoint two supervisors for each district, and the United States marshal could create as many deputies as he deemed necessary to aid him in enforcing the law. It is said that 15,000 supervisors and deputy marshals surrounded the polls at the general election of 1876, and many state officers were punished by the Federal courts for alleged violations of both the national statute and state laws at that election.

In the autumn of 1874 an election for members of the Legislature took place in the State of Louisiana. On the face of the returns the Conservatives, or what were known as the white man’s party, had a majority of five in a House of Representatives of one hundred and eleven members. The government of Louisiana had been so bad for many years under the control of the negro party that even the better class of negroes, becoming disgusted, deserted their party and voted for the white candidates. The Returning Board, controlled by Governor Kellogg and Marshal Packard, found that fifty-three Republicans and only fifty-three of what were known as the Conservatives had been elected, and rendered no decision as to the other five seats. A committee appointed by the United States House of Representatives to examine as to the act of the Returning Board, and as to the honesty of the Conservatives, whose members had been rejected because of alleged intimidation and fraud, consisting of Charles Foster, afterwards Secretary of the Treasury, William Walter Phelps, and Clarkson N. Potter, visited New Orleans and made their report to the effect that the action of the Returning Board was illegal, and that in substance the Conservative majority was procured by honest means. When, however, the Legislature came to assemble, General de Trobriand, of the army of the United States, entered the House of Representatives in uniform, his sword at his side and escorted by his staff. Furnished with an order by Governor Kellogg to clear the hall of all not returned as legal members by the Returning Board, he removed the five members by force, leaving the Republicans in control, who finally organized the House and proceeded to do business. The acts of Charles I and of Cromwell, in removing members from the House of Commons by violence, ever since have been landmarks in usurpation. This act of President Grant and of his general ought to stand side by side with these early acts of tyranny.

Property of considerable value was abandoned from time to time by citizens of the Southern States during the Civil War, and was taken possession of and sold by the National Government and the proceeds deposited in the United States Treasury. On December 8, 1863, the President, pursuant to the authority of Congress, made a proclamation offering pardon to citizens of the South who would take a prescribed oath and return to their allegiance to the National Government. As an inducement to bring about this result the President promised restoration of all their rights of property except as to slaves, and offered to return to the owners of abandoned property the proceeds thereof in the United States Treasury. Thousands of Southern men availed themselves of this proclamation, and after the war many claims for the proceeds of such abandoned property were filed in the Court of Claims. The fact that the claimant had taken the oath after the proclamation, had availed himself of the conditions of the proclamation, and had received the pardon of the President was regarded as sufficient to entitle him to prosecute his claim before the court without other proof of his loyalty. On July 12, 1870, Congress passed, as a rider to the Appropriation Bill, a law providing that no prior pardon of the President should be admissible in evidence on the part of any claimant in the Court of Claims in support of his claim for the proceeds of abandoned property, and that proof of his loyalty must be made irrespective of the effect of the proclamation of the President and his availing himself thereof; and that where the claim had been dismissed and the claimant took an appeal therefrom, that the Appellate Court, when it appeared that proof of loyalty depended alone upon such pardon, should affirm the judgment of the Court of Claims. This statute was declared unconstitutional as an infringement of the right of the President to grant such pardon and as destroying its effect.47

During all the period between 1789, when the first Congress under the Constitution convened, and 1863 the United States Supreme Court had declared only two statutes unconstitutional.48 It is true that in two other cases during that period the court had held that duties imposed upon it by the Congress were not judicial in their nature and that therefore they were under no obligations to perform them.49 In addition to the unconstitutional acts described in this chapter passed in the war and Reconstruction days, the United States Supreme Court declared four other acts of that period unconstitutional.50 Between the years 1863 and 1870 eleven statutes were passed by Congress which were declared unconstitutional by the Supreme Court of the United States. During the same period the examination by the Supreme Court of several Congressional statutes was prevented by acts of Congress repealing the law allowing appeals to that court. So that during seventy-four years of the history of the country between 1789 and 1863 the United States Supreme Court declared two Congressional acts unconstitutional; while during the period from 1863 to 1870, a period of only seven years, eleven statutes were declared unconstitutional and many more would have been declared unconstitutional had the court ever had the opportunity to pass upon them. No facts could more strongly demonstrate that this era of the latter part of the Civil War and the Reconstruction Period was an era of usurpation than the decision of the highest court that so many statutes passed in that period were void as usurping the rights of the several states.

The importance of the facts which we have given are found in their violence. We, perhaps, have no reason for fear in this country that our liberties will be violently wrested from us. The danger is that they will be secretly undermined and gradually destroyed. The usurping acts of the war were white compared with the cold calculating despotism of Reconstruction days. Mr. Rhodes quotes Bishop Galloway, of Mississippi, as saying in 1903:51 “Those pitiless years of reconstruction! Worse than the calamities of war were the ‘desolating furies of peace.’ No proud people ever suffered such indignities or endured such humiliation and degradation.”

After the Battle of the Boyne, for more than a century England kept the Irish Catholics reduced to the condition of helots, attempting to extirpate their religion, excluding them from Parliament, from municipal office, from legislatures, and from the jury box. The prevailing party of reconstruction sought to accomplish the same results, not because they feared the South as England feared Catholicism, but for the selfish and wicked purpose of political supremacy. Senator Howe, speaking in the United States Senate in those days in behalf of the reconstruction policy of his party, said:

“Do senators comprehend what consequences would result necessarily from restoring the functions of those states! It will add fifty eight members to the House of Representatives, more than one fourth of its present membership. It will add twenty two members to the Senate; more than one half of the present membership. The Constitution designed the legislature to be independent of the Executive. But what independence has that legislature in which the executive at his pleasure may pour so many votes!”52

When General Terry, in command of the department which included the State of Georgia, ousted twenty-four Democrats from the Legislature and by his own appointment filled their places by Republicans, at the same time restoring a number of negroes who had been expelled, Carl Schurz declared in the United States Senate that these acts of General Terry’s were usurpations.

Senator Henry Wilson, of Massachusetts, replied: “Law or no law, we want to keep this state government in power.” In the House of Representatives Thaddeus Stevens, with a malignity as bitter as characterized the leaders of the French Revolution, and that unscrupulous demagogue, Benjamin F. Butler, fired their followers with hatred and fanaticism to enact these pitiless and unconstitutional laws.

War is never done. It leaves its baleful seed for generations. We are suffering today from these usurpations. The exercise of such powers accustomed our people to the sight of tyranny, and as a partial result of those deeds our Government is being transformed. Already the Constitution by construction has been stretched to cover a multitude of conditions never anticipated by its makers; and we are face to face with the problem whether ours is a government under a written constitution and the laws made pursuant thereto, or whether it is a government by ambitious and usurping men.


NOTES

   25.   Bollman v. Swartout, 4 Cranch, 75.
   26.   Dunning, Essays on the Civil War and Reconstruction, p. 41.
   27.   Peck, Twenty Years of the Republic, p. 114.
   28.   War of Rebellion House Documents, vol. lxvii.
   29.   The Justices v. Murray, 76 U. S. 274.
   30.   Ex parte Milligan, 4 Wallace, 2.
   31.   Bradford, The Lessons of Popular Government, vol. II, p. 390, note.
   32.   Bryce, The American Commonwealth, vol. i, p. 388, note.
   33.   Dunning, Essays on the Civil War and Reconstruction, pp. 30, 31.
   34.   4 Elliot’s, Deb , pp 413, 474, 611; 5 Elliot’s Deb , p. 440.
   35.   4 Elliot’s Deb , p. 458.
   36.   Veazie Bank v. Fenno, 8 Wallace, 533.
   37.   Texas v. White, 74 U. S. 726 of opinion.
   38.   Cox, Three Decades of Federal Legislation, p. 367.
   39.   Mississippi v. Johnson, 4 Wallace, 475, Georgia v. Stanton, 6 Wallace, 50.
   40.   Dunning, Essays on the Civil War and Reconstruction, pp. 162 — 72.
   41.   Rhodes, History of the United States, vol. vi, pp. 96, 97.
   42.   Ex parte McCardle, 6 Wallace, 634, 7 Wallace, 512.
   43.   Elliot’s Deb., pp. 350-404.
   44.   United States v Harris, 106 U. S. 629, United States v. Cruikshank, 92 U. S. 542.
   45.   Civil Rights Cases, 109 U. S. 1.
   46.   Cummings v. State of Missouri, 4 Wallace, 277; ex parte Garland, 4 Wallace, 333.
   47.   United States v. Klein, So U. S. 129-47.
   48.   Marbury v. Madison, 1 Cranch, 137 (1803); Dred Scott v. Sanford, 19 Howard, 393 (1857).
   49.   Heybum’s Case, 2 Dall., 409 (1792), United States v. Ferreira, 13 Howard, 40.
   50.   Collector v. Day, 8 Wallace, 113; Hepburn v. Griswold, 8 Wallace, 603; United States v. Reese, 92 U. S. 214; James v. Bowman, 190 U. S. 127.
   51.   History of the United States, vol. vii, p. 141.
   52.   Cox, Three Decades of Federal Legislation, p. 352.

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