eral110 and a State treasurer,111 as well as local officers of every description, were removed, and in many cases soldiers detailed to discharge their duties, to administer the laws of the State, to determine controversies affecting liberty and property without any qualifications from previous study or experience in their systems of jurisprudence, and to collect and disburse the taxes and other revenues of the State without filing any bond.112 Legislatures Decades of Federal Legislation, p. 489). 110 In Louisiana, March, 27, 1867 (McPherson, History of the Reconstruction, p. 206). 111 Attorney-General Stanbery, 12 Op. A. G., 194. Davis, Rise and Fall of the Confederate Government, vol. ii, p. 759. 112In one of these districts, the governor of a State has been deposed under a threat of military force, and another person, called a governor, has been appointed by a military commander to fill his place. Thus presenting the strange spectacle of an official intrusted with the chief power to execute the laws of the State whose authority is not recognized by the laws he is called upon to execute. "In the same district, the judge of one of the criminal courts of the State has been summarily dealt with. In this instance, the judge has, by military order, been ejected from his office, and a private citizen has been appointed judge in his place by military authority, and is now in the exercise of criminal jurisdiction over all crimes, misdemeanors and offences' committed within the territorial jurisdiction of the court. This military appointee is certainly not authorized to try any one for any offence as a member of a military tribunal, and he has just as little authority to try and punish any offender as a judge of a criminal court of the State. It happens that this private citizen, thus placed on the bench, is to sit as the sole judge in a criminal court whose jurisdiction extends to cases involving the life of the accused. "If he has any judicial power in any case, he has the same power to take cognizance of capital cases, and to sentence the accused to death, and order his execution. A strange spectacle, when the judge and the criminal may very well 'change places'; for if the criminal has unlawfully taken life, so too does the judge. This is the inevitable result, for the only tribunal, the only judges, if they can be called judges, which a military commander can constitute and appoint under this act, to inflict the death penalty, is a military court composed of a board, and called in the act a military commission.' "I see no relief for the condemned against the sentence of this agent of the military commander. It is not the sort of court whose sentence of death must be first approved by the commander and finally by the President, for that is allowed only where the sentence is pronounced by a 'military commission.' Nor is it a sentence pronounced by the rightful court of a State, but by a court and by a judge not clothed with authority under the laws of the State, but constituted by the military authority. As the representative of this military authority, this act forbids interference, 'under color of State authority,' with the exercise of his functions." (12 Op. were forbidden to meet.113 The people were, in some cases, forbidden to elect local officers, 114 or even to go through the form of choosing presidential electors; 115 and voters qualified by the State constitutions were disfranchised by an ex post facto law upon charges of treason of which they had never been convicted. Taxation, national and local, 116 without representation, was imposed upon them. A tribute was thus levied by the imposition of a cotton-tax, which affected no property outside of the disfranchised States, and escaped annulment by a tie vote of the Supreme Court. 117 Taxes imposed by State legislatures were reduced or set aside.118 Public meetings were suppressed.119 The right of the people to bear arms was infringed by the act of Congress disbanding the State militia 120 and the orders of generals addressed to private citizens.121 Meanwhile, when it suited the pleasure of the district commanders, State officers were obliged to continue to discharge their functions even after the expiration of their terms.122 Judges who had been sworn to administer the A. G., pp. 193–194. See also ibid., pp. 186-187.) On March 29th, 1869, General Stoneman reported: that out of 5,446 offices in Virginia 139 of the incumbents were able to take the test-oath, and consequently were undisturbed; 532 had been filled by his predecessor, and 1,972 by himself; and that 2,613 remained, the incumbents of which were disqualified by Congress, and that he was unable to find eligible men who were competent to discharge their duties. (McPherson, History of the Reconstruction, p. 425.) 113 See Davis, Rise and Fall of the Confederate Government, vol. ii, pp. 746, 757; McPherson, History of the Reconstruction, p. 325. 114 McPherson, History of the Reconstruction, pp. 208, 428. 429. 115 In Texas, Sept. 29, 1868, ibid., p. 116 Cox, Three Decades of Federal Legislation, p. 550. 117 The Act of March 7, 1864 (13 St. at L., 14), first imposed a tax of two cents a pound on unmanufactured cotton. This was continued by the act of June 30, 1864 (ibid., p. 223); increased to three cents a pound by the act of July 13, 1866 (14 St. at L., 98); reduced to two and a half cents a pound by the act of March 2, 1867 (ibid., p. 169); and repealed by the act of Feb. 3, 1868 (15 St. at L., 34). The constitutionality of the tax was affirmed by a divided court Feb. 20, 1871, in the unreported case of Farmington v. Saunders, after two arguments, the first in December, 1869, in which its opponents claimed that it was a direct tax and a tax upon exports. 118 McPherson, History of the Reconstruction, p. 429. 119 McPherson, History of the Reconstruction, p. 429; Davis, Rise and Fall of the Confederate Government, vol. ii, pp. 733. 120 Act of March 2, 1867, 14 St. at L., 487; supra, over note 95. 121 McPherson, History of the Reconstruction, pp. 204, 316. 122 McPherson, History of the Reconstruction, pp. 206, 208, 428. laws of their States were directed to violate them; 123 to empanel juries out of a class disqualified by their State statutes; 124 to take testimony which was by statute made incompetent; and to deny remedies to which suitors were entitled by law; and in some cases they were imprisoned for their refusal.125 Punishments prescribed by the State statutes were forbidden.126 A new code of penal law was in some cases set up by the will of the general.127 Permission to pardon, as provided by the State constitutions, was in some cases given to the State governors, and in others withheld.128 And many persons, in violation of the constitution,129 were tried upon criminal charges before military commissions and imprisoned under sentences thus illegally imposed. In one case a civilian was sentenced to death by such a commission, although he was at the time under indictment by the State court for the same offences; and the Attorney-General advised the President to approve the sentence; but the execution was prevented by an escape,130 which it may be hoped was collusive. The interference of the military with the civil government was not confined to the maintenance of order, the elevation of the colored race, and the promotion of the policy of Congress. The administration of justice relating to private rights between private citizens was arbitrarily controlled. Executions and judicial sales were stayed.131 Exemptions from attachments, arrests, and executions, unknown to the State laws, were ordered.132 Decrees 123 See Davis, Rise and Fall of the Confederate Government, vol. ii, p. 733. 124 Davis, Rise and Fall of the Confederate Government, vol. ii, p. 744; Opinion of Henry Stanbery, 12 Op. A. G., 186, 187. 125 McPherson, History of the Reconstruction, pp. 202-204. 126 McPherson, History of the Reconstruction, p. 204. Justification for many of these acts was sought under the Civil Rights Bill, which had not then been declared unconstitutional. 127 Ibid. 128 Ibid. 129 Ex-parte Milligan, 4 Wall., 3. For an opinion of Attorney General Hoar, sustaining such a practice. See 13 Op. A. G., 59; McPherson, History of the Reconstruction, p. 475. 180 See Weaver's Case, 13 Op. A. G., 59; McPherson, History of the Reconstruction, p. 475. M.S. letter by E. R. Hoar to the writer, Oct. 1, 1894. 131 Such orders in South Carolina were justified under an act of the State Legislature, which was afterwards held unconstitutional (State v. Carew, Rich. S. C. 13 Law. 12 Eq. 277). 132 Order of General Sickles in North and South Carolina, April 11, 1867. McPherson, History of the Re of State courts in suits affecting rights of property were set aside,133 and in one case the Federal army resisted the enforcement of the decree of a Federal court.134 In marked contrast with this conduct of other district commanders was that of General Winfield Scott Hancock, whom, on August 26th, 1867, Johnson detailed to the command of Louisiana and Texas, in the place of General Philip H. Sheridan. His first step was the promulgation, on November 29th, 1867, of his famous General Order No. 40, which is replete with the doctrines essential to constitutional liberty: "The General Commanding is gratified to learn that peace and quiet reign in this Department. It will be his purpose to preserve this condition of things. As a means to this great end, he regards the maintenance of the civil authorities in the faithful execution of the laws as the most efficient under existing circumstances. In war, it is indispensable to repel force by force, and overthrow and destroy opposition to lawful authority. But when insurrectionary force has been overthrown and peace established, and the civil authorities are ready and willing to perform their duties, the military power should cease to lead, and the civil administration resume its natural and rightful dominion. Solemnly impressed with these views, the General announces that the great principles of American liberty are still the lawful inheritance of the people, and ever should be. The right of trial by jury, the habeas corpus, the liberty of the press, the freedom of speech, the natural rights of persons, and the rights of property, must be preserved. "Free institutions, while they are essential to the prosperity and happiness of the people, always furnish the strongest inducements to peace and order. Crimes and offences committed in this district must be referred to the consideration and judgment of the regular civil tribunals, and those tribunals will be supported in their lawful jurisdiction. construction, pp. 202-204. See also the order in Virginia, March 12, 1868, ibid. p. 317. 133 Davis, Rise and Fall of the Confederate Government, vol. ii, p. 739, 743-744. These proceedings were held by the Supreme Court to be void because not authorized by the Reconstruction Acts, Raymond v. Thomas, 91 U. S. 712. 184 This action in North Carolina was disapproved at Washington, and held by the Acting Attorney-General John M. Binckley, to be "simply a case of high misdemeanor, legally contemplated." Davis, Rise and Fall of the Confederate Government, vol. ii, p. 739; Appleton's Annual Encyclopædia for 1867, p. 548. "Should there be violations of existing laws which are not inquired into by the civil magistrates, or should failure in the administration of justice by the courts be complained of, the cases will be reported to these headquarters, when such orders will be made as may be deemed necessary. While the General thus indicates his purpose to respect the liberties of the people, he wishes all to understand that armed insurrection or forcible resistance to the law will be instantly suppressed by arms." This was followed by a series of special orders in which he forbade interference by the military at the polls, disclaimed judicial functions in civil cases and sustained the jurisdiction of the civil courts over the rights of private property and the trial of offenses against the State laws.135 The day after President Grant's inauguration he removed Hancock from this command and sent Sheridan back to follow the practice of the other district commanders.136 Thus, under the intimidation of armed force at the polls, State conventions were elected by the ignorant blacks and by those of the white race who were least trained in public affairs and had little interest in the protection of private property and the maintenance of order. These organized under the control of the army, which in some cases was obliged to interfere and keep order in their proceedings, 137 prepared new State constitutions in accordance with the commands of the dominant party at Washington, and ratified the Fourteenth Amendment to the Federal Constitution. On June 22d, 1868, the State of Arkansas was admitted to representation in Congress by a bill passed over the President's veto, which was based upon objections to the unconstitutional principle therein recognized, and also to the necessity of legislation upon a subject which each House of Congress had the power to determine for itself. The recitals said that the people of the State in pursuance of the reconstruction acts, had "formed and adopted 135 General Order, No. 40, and Hancock's letter in defence of it to Governor Pease of Texas, which is a masterpiece of dignified and crushing argument, are republished in Forney's Life of Hancock, pp. 232–246. See also McPherson, History of the Re construction, p. 324. They are said to have been written by Jere. S. Black. 186 Blaine, Twenty Years in Congress, vol. iii, p. 299. 187 Davis, Rise and Fall of the Confederate Government, vol. ii, p. 749. |