The belligerent character of the Confederate States was thus fully acknowledged by the highest judicial tribunal of the United States.
This involved an acknowledgment of the Confederate Government as a Government _de facto_ having "the sovereign rights of war," yet the Executive Department of the United States Government, with reckless malignity, denounced our cruisers as "pirates," our citizens as "insurgents" and "traitors," and the action of our Government as an "insurrection."
It has been stated that during the war of the colonies with Great Britain many of the prizes of the colonial cruisers were destroyed.
This was done by Paul Jones and other commanders, although during the entire period of the war some of the colonial ports were open, into which prizes could be taken. In that war Great Britain did not attempt to blockade all the ports of the colonies. Sailing-vessels only were then known, and with these a stringent blockade at all seasons could not have been maintained. But, at the later day of our war, the powerful steamship had appeared, and revolutionized the commerce and the navies of the world. During the first months of the war all the principal ports of the Confederacy were blockaded, and finally every inlet was either in possession of the enemy or had one or more vessels watching it. The steamers were independent of wind and weather, and could hold their positions before a port day and night. At the same time the ports of neutrals had been closed against the prizes of our cruisers by proclamations and orders in council.
Says Admiral Semmes:
"During my whole career upon the sea, I had not so much as a single port open to me, into which I could send a prize."
Our prizes had been sent into ports of Cuba and Venezuela under the hope that they might gain admittance, but they were either handed over to the enemy under some fraudulent pretext, or expelled. Thus, by the action of the different nations and by the blockade with steamers, no course was left to us but to destroy the prizes, as was done in many instances under the Government of the United States Confederation.
The laws of maritime war are well known. The enemy's vessel when captured becomes the property of the captor, which he may immediately destroy; or he may take the vessel into port, have it adjudicated by an admiralty court as a lawful prize, and sold. That adjudication is the basis of title to the purchaser against all former owners. In these cases the captor sends his prizes to a port of his own country or to a friendly port for adjudication. But, if the ports of his own country are under blockade by his enemy, and the recapture of the prizes, if sent there, most probable, and if, at the same time, all friendly ports are closed against the entrance of his prizes, then there remains no alternative but to destroy the prizes by sinking or burning. Courts of admiralty are established for neutrals; not for the enemy, who has no right of appearance before them. If, therefore, any neutrals suffered during our war for want of adjudication, the fault is with their own Government, and not with our cruisers.
Many other objections were advanced by the United States Government as evidence that we committed a breach of international law with our cruisers, but their principles are embraced in the preceding remarks, or they were too frivolous to deserve notice. Suffice it to say that, if the Confederate Government had been successful in taking to sea every vessel which it built, it would have swept from the oceans the commerce of the United States, would have raised the blockade of at least some of our ports, and, if by such aid our independence had been secured, there is little probability that such complaints as have been noticed would have received attention, if, indeed, they would have been uttered.
In January, 1871, the British Government proposed to the Government of the United States that a joint commission should be convened to adjust certain differences between the two nations relative to the fisheries, the Canadian boundary, etc. To this proposition the latter acceded, on condition that the so-called Alabama claims should also be considered. To this condition Great Britain assented. In the Convention the American Commissioners proposed an arbitration of these claims. The British Commissioners replied that her Majesty's Government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American Commissioners referred.
Without following the details, it may be summarily stated that the Geneva Conference ensued. That decided that "England should have fulfilled her duties as a neutral by the exercise of a diligence equal to the gravity of the danger," and that "the circumstances were of a nature to call for the exercise, on the part of her Britannic Majesty's Government, of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by her Majesty on May 18, 1861." The Conference also added: "It can not be denied that there were moments when its watchfulness seemed to fail, and when feebleness in certain branches of the public service resulted in great detriment to the United States."
The claims presented to the Conference for damages done by our several cruisers were as follows: The Alabama, $7,050,293.76; the Boston, $400; the Chickamauga, $183,070.73; the Florida, $4,057,934.69; the Clarence, tender of the Florida, $66,736.10; the Tacony, tender of the Florida, $169,198.81; the Georgia, $431,160.72; the Jefferson Davis, $7,752; the Nashville, $108,433.95; the Retribution, $29,018.53; the Sallie, $5,540; the Shenandoah, $6,656,838.81; the Sumter, $179,697.67; the Tallahassee, $836,841.83.
Total, $19,782,917.60. Miscellaneous, $479,033; increased insurance, $6,146,19.71. Aggregate, $26,408,170.31.
The Conference rejected the claims against the Boston, the Jefferson Davis, and the Sallie, and awarded to the United States Government $15,500,000 in gold.
But the indirect damages upon the commerce of the United States produced by these cruisers were far beyond the amount of the claims presented to the Geneva Conference. The number of ships owned in the United States at the commencement of the war, which were subsequently transferred to foreign owners by a British register, was 715, and the amount of their tonnage was 480,882 tons. Such are the laws of the United States that not one of them has been allowed to resume an American register.
In the year 1860 nearly seventy per cent. of the foreign commerce of the country was carried on in American ships. But, in consequence of the danger of capture by our cruisers to which these ships were exposed, the amount of this commerce carried by them had dwindled down in 1864 to forty-six per cent. It continued to decline after the war, and in 1872 it had fallen to twenty-eight and a half per cent.
Before the war the amount of American tonnage was second only to that of Great Britain, and we were competing with her for the first place.
At that time the tonnage of the coasting trade, which had grown from insignificance, was 1,735,863 tons. Three years later, in 1864, it had declined to about 867,931 tons.
The damage to the articles of export is illustrated by the decline in breadstuffs exported from the Northern States. In the last four months of each of the following years the value of this export was as follows: 1861, $42,500,000; 1862, $27,842,090; 1863, $8,909,043; 1864, $1,850,819. Some of this decline resulted from good crops in England; but, in other respects, it was a consequence of causes growing out of the war.
The increase in the rates of marine insurance, in consequence of the danger of capture by the cruisers, was variable. But the gross amount so paid was presented as a claim to the Conference, as given above.
[Footnote 59: Wheaton's "International Law" sixth edition, p. 571, 1855.]
[Footnote 60: Ken's "Commentaries," vol i, p. 145, 1854.]
CHAPTER XXXII.
Attempts of the United States Government to overthrow States.-- Military Governor of Tennessee appointed.--Object.--Arrests and Imprisonments.--Measures attempted.--Oath required of Voters.--A Convention to amend the State Constitution.--Results.--Attempt in Louisiana.--Martial Law.--Barbarities inflicted.--Invitation of Plantations.--Order of General Butler, No. 28.--Execution of Mumford.--Judicial System set up.--Civil Affairs to be administered by Military Authority.--Order of President Lincoln for a Provisional Court.--A Military Court sustained by the Army.--Words of the Constitution.--"Necessity," the reason given for the Power to create the Court.--This Doctrine fatal to the Constitution; involves its Subversion.--Cause of our Withdrawal from the Union.--Fundamental Principles unchanged by Force.--The Contest is not over; the Strife not ended.--When the War closed, who were the Victors?--Let the Verdict of Mankind decide.
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 duties of his office. This step was taken by the President of the United States under the pretense of executing that provision of the Constitution which is in these words:
"The United States shall guarantee to every State in this Union a republican form of government."
The administration was conducted according to the will and pleasure of the Governor, which was the supreme law. Public officers were required to take an oath of allegiance to the United States Government, and upon refusal were expelled from office.
Newspaper-offices were closed, and their publication suppressed.
Subsequently the offices were sold out under the provisions of the confiscation act. All persons using "treasonable and seditious"
language were arrested and required to take the oath of allegiance to the Government of the United States, and give bonds for the future, or to go into exile. Clergymen, upon 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. Murders 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, under the authority of the military Governor, until the beginning of 1864. Measures were then commenced by the Governor 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 in the various counties of the State whenever it was practicable. "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." In addition to the possession of the usual qualifications, the voter was required to take the following oath:
"I solemnly swear that I will henceforth support the Constitution of the United States, and defend it against the assaults of all its enemies; that I will hereafter be, and conduct myself as, a true and faithful citizen of the United States, freely and voluntarily claiming to be subject to all the duties and obligations, and entitled to all the rights and privileges, of such citizenship; that I ardently desire the suppression of the present insurrection and rebellion against the Government of the United States, the success of its armies, and the defeat of all those who oppose them; and that the Constitution of the United States, and all laws and proclamations made in pursuance thereof, may be speedily and permanently established and enforced over all the people, States, and Territories thereof; and, further, that I will hereafter aid and assist all loyal people in the accomplishment of these results."
Thus to invoke the Constitution was like Satan quoting Scripture. The election was a failure, and all further efforts at reconstruction were for a time suspended. An attempt was made at the end of 1864 to obtain a so-called convention to amend the State Constitution, and a body was assembled which, without any regular authority, adopted amendments. These were submitted to the voters on February 22, 1865, and declared to be ratified by a vote of twenty-five thousand, in a State where the vote, in 1860, was one hundred and forty-five thousand. Slavery was abolished, other changes made, so-called State officers elected, and this body of voters was proclaimed as the reconstructed State of Tennessee, and one of the United States. Such was the method adopted in Tennessee to execute the provision of the Constitution which says:
"The United States shall guarantee to every State in this Union a republican form of government."
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 United States forces were under the command of Major-General Benjamin F. Butler. Martial law was declared, and Brigadier-General George F. Shepley was appointed military Governor of the State. It is unnecessary to relate in detail the hostile actions which were committed, as they had no resemblance to such warfare as is alone permissible by the rules of international law or the usages of civilization. Some examples taken from contemporaneous publications of temperate tone, will suffice.
Peaceful and aged citizens, unresisting captives, and noncombatants, were confined at hard labor with chains attached to their limbs, and held in dungeons and fortresses; others were subjected to a like degrading punishment for selling medicine to the sick soldiers of the Confederacy. 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 threat of imprisonment at hard labor with ball and chain. The entire population were forced to elect between starvation by the confiscation of all their property and 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 to helpless children; and, after being ejected from their houses and robbed of their property, they were left to starve in the streets or subsist on charity. The slaves were driven from the 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 were, in spite of their entreaties, forced from the homes provided by their owners, and driven to wander helpless on the highway. By an order (No. 91), the entire property in that part of Louisiana west of the Mississippi River was sequestrated 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 bidders. This was an order which, if it had been executed, would have condemned to punishment, by starvation, at least a quarter of a million of persons, of all ages, sexes, and conditions. 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, which in its nature, as exemplified in other lands, far exceeds the horrors and merciless atrocities of savages. 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.
The order of Major-General Butler, to which reference is made above, was as follows:
"HEADQUARTERS, DEPARTMENT OF THE GULF, NEW ORLEANS.
"As officers and soldiers of the United States have been subject to repeated insults from women, calling themselves ladies, of New Orleans, in return for the most scrupulous non-interference and courtesy on our part, it is ordered hereafter, when any female shall, by mere gesture or movement, insult, or show contempt for any officers or soldiers of the United States, she shall be regarded and held liable to be treated as a woman about town plying her vocation.
"By command of Major-General BUTLER."
This order was issued on May 15, 1862, and known as General Order No.
28.
Another example was the cold-blooded execution of William B. Mumford on June 7th. He was an unresisting and noncombatant captive, and there was no offense ever alleged to have been committed by him subsequent to the date of the capture of the city. 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, Major-General N. P. Banks took command of the military forces, and Major-General Butler retired. The military Governor, early in August, had attempted to set on foot a judicial system for the city and State. For this purpose he appointed judges to 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 forces 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 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 in order to enable the military power to administer civil affairs. This involved, as every reader must perceive, a complete subversion of the fundamental principles of social organization. According to this advanced step, the military power, instituted by an organization of its own, creates for itself a new nature, fixes at will its rules and modes of action, and determines the limits of its power. It absorbs by force the civil functions, with absolute disregard of the fundamental principle that the military shall be subject to the civil authority.
This attempt to administer civil affairs on the basis of military authority involved, as has been said, the subversion of fundamental principles. The military power may remove obstacles to the exercise of the civil authority; but, when these are removed, it can not enter the forum, put on the toga, and sit in judgment upon civil affairs, any more than the hawk becomes the dove by assuming her plumage.
However, the next step was taken. It consisted in the publication of the following order by the President of the United States:
"EXECUTIVE MANSION, WASHINGTON, _October 20, 1862._
"The insurrection which has for some time prevailed in several of the States of this Union, including Louisiana, having temporarily subverted and swept away the civil institutions of that State, including the judiciary and the judicial authorities of the Union, so that it has become necessary to hold the State in military occupation; and it being indispensably necessary that there shall be some judicial tribunal existing there capable of administering justice, I have therefore thought it proper to appoint, and I do hereby constitute a provisional court, which shall be a court of record for the State of Louisiana; and I do hereby appoint Charles A.
Peabody, of New York, to be a provisional judge to hold said court, 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, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States and Louisiana--his judgment to be final and conclusive. And I do hereby authorize and empower the said judge to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a prosecuting attorney, marshal, and clerk of the said court, who shall perform the functions of attorney, marshal, and clerk according to such proceedings and practice as before mentioned, and such rules and regulations as may be made and established by said judge. These appointments are to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and in the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, and compensation shall be as follows.