pledged. Hence it was the military power, as has been said, administering civil affairs. The Constitution of the United States says: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”* This provisional court was neither ordained nor established by Congress; it had not, therefore, vested in it any of the judicial power of the United States. Neither does the Constitution give to Congress any power by which it can constitute an independent State court within the limits of any State in the Union, as Louisiana was said to be. This provisional court, therefore, was a mere instrument of martial law, constituted by the Commander-in-Chief of the United States forces, not for the usual purposes which justify the establishment of such courts, but to enter the domain of civil affairs and administer justice between man and man in the ordinary transactions of peaceful life. The ministers of martial law are only the representatives of the conqueror, and they sit in his seat of authority to relieve him from the burden of exces sive duties, and to administer justice to offenders against his authority and the social welfare, during his presence. On such grounds the existence of such courts is justified; but, for the establishment of a court like this provisional one, no legitimate authority is to be found either in the Constitution of the United States or outside of it. "Inter arma silent leges" is a maxim nearly two thousand years old; it means that, under the exercise of military power, the civil administration ceases. When called upon to state any just grounds for such a measure, the invader has usually replied that he had, ex necessitate rei, the right to establish such a tribunal. Thus said the Commander-in-Chief of the United States, and Congress acquiesced -indeed, leading the way, it had urged the same plea to jus tify the passage of its confiscation act. The judiciary has ob served the silence of acquiescence. Thus the doctrine of neces sity—the rule that, in the administration of affairs, both military * Constitution of the United States, Article III, section 1. 1862] WHAT, THEN, IS THIS NECESSITY? 293 and civil, the necessity of the case may and does afford ample authority and power to subvert or to suspend the provisions of the Constitution, and to exercise powers and do acts unwarranted by the grants of that instrument-has apparently become incorporated as an unwritten clause of the Constitution of the United States. of power What, then, is this necessity? Its definition would require an explanation, from the persons who act under it, of the objects for which, in every instance, they act. Suffice it to say that the political wisdom of mankind has consecrated this truth as a fundamental maxim, that no man can be trusted with the exercise and be, at the same time, the final judge of the limits within which that power may be exercised. It has fortified this with other maxims, such as, "Necessity is the plea of despotism"; "Necessity knows no law." The fathers of the Constitution of the United States sought to limit every grant of power so exactly that it should observe its bounds as invariably as a planetary body does its orbit. Yet within the first hundred years of its existence all these limits have been disregarded, and the people have silently accepted the plea of necessity. It must be manifest to every one that there has been a fatal subversion of the Constitution of the United States. In estimating the results of the war, this is one of the most deplorable; because it is self-evident that, when a constitutional Government once oversteps the limits fixed for the exercise of its powers, there is nothing beyond to check its further aggression, no place where it will voluntarily halt until it reaches the subjugation of all who resist the usurpation. This was the sole issue involved in the conflict of the United States Government with the Confederate States; and every other issue, whether pretended or real, partook of its nature, and was subordinate to this one. Let us repeat an illustration: In strict observance of their inalienable rights, in abundant caution reserved, when they formed the compact or Constitution-whichever the reader pleases to call it-of the United States, the Confederate States sought to withdraw from the Union they had assisted to create, and to form a new and independent one among themselves. Then the Government of the United States broke through all the limits fixed for the exercise of the powers with which it had been endowed, and, to accomplish its own will, assumed, under the plea of necessity, powers unwritten and unknown in the Constitution, that it might thereby proceed to the extremity of subjugation. Thus it will be perceived that the question still lives. Although the Confederate armies may have left the field, although the citizen soldiers may have retired to the pursuits of peaceful life, although the Confederate States may have renounced their new Union, they have proved their indestructibility by resuming their former places in the old one, where, by the organic law, they could only be admitted as republican, equal, and sovereign States of the Union. And, although the Confederacy as an organization may have ceased to exist as unquestionably as though it had never been formed, the fundamental principles, the eternal truths, uttered when our colonies in 1776 declared their independence, on which the Confederation of 1781 and the Union of 1788 were formed, and which animated and guided in the organization of the Confederacy of 1861, yet live, and will survive, however crushed they may be by despotic force, however deep they may be buried under the débris of crumbling States, however they may be disavowed by the time-serving and the fainthearted; yet I believe they have the eternity of truth, and that in God's appointed time and place they will prevail. The contest is not over, the strife is not ended. It has only entered on a new and enlarged arena. The champions of constitutional liberty must spring to the struggle, like the armed men from the seminated dragon's teeth, until the Government of the United States is brought back to its constitutional limits, and the tyrant's plea of "necessity" is bound in chains strong as adamant: "For Freedom's battle once begun, When the war closed, who were the victors? Perhaps it is too soon to answer that question. Nevertheless, every day, as time rolls on, we look with increasing pride upon the struggle our people made for constitutional liberty. The war was one in 1862] ON WHICH SIDE WAS THE VICTORY? 295 which fundamental principles were involved; and, as force deeides no truth, hence the issue is still undetermined, as has been already shown. We have laid aside our swords; we have ceased our hostility; we have conceded the physical strength of the Northern States. But the question still lives, and all nations and peoples that adopt a confederated agent of government will become champions of our cause. While contemplating the Northern States-with their Federal Constitution gone, ruthlessly destroyed under the tyrant's plea of "necessity," their State sovereignty made a byword, and their people absorbed in an aggregated mass, no longer, as their fathers left them, protected by reserved rights against usurpation - the question naturally arises: On which side was the victory? Let the verdict of mankind decide. CHAPTER XXXIII. Further Attempts of the United States Government to overthrow States.—Election of Members of Congress under the Military Governor of Louisiana.—The Voters required to take an Oath to support the United States Government.—The State Law violated.-Proposition to hold a State Convention; postponed.—The Presi dent's Plan for making Union States out of a Fragment of a Confederate State. His Proclamation.The Oath required.-Message." The War-Power our Main Reliance."-Not a Feature of a Republican Government in the Plan. -What are the True Principles ?-The Declaration of Independence asserts them.-Who had a Right to institute a Government for Louisiana ?—Its People only.—Under what Principles could the Government of the United States do it? —As an Invader to subjugate.-Effrontery and Wickedness of the Administration.-It enforces a Fiction.-Attempt to make Falsehood as good as Truth.— Proclamation for an Election of State Officers.-Proclamation for a State Convention.—The Monster Crime against the Liberties of Mankind.—Proceedings in Arkansas.-Novel Method adopted to amend the State Constitution.-Perversion of Republican Principles in Virginia.-Proceedings to create the State of West Virginia.-A Falsehood by Act of Congress.-Proceedings considered under Fundamental Principles. These Acts sustained by the United States Government.-Assertion of Thaddeus Stevens.-East Virginia Government.—Removed to Richmond and upheld by the United States Government.—Such Acts caused Entire Subversion of States.-Mere Fictions thus constituted. BUT to resume our narration. On December 3d, in compli ance with an order of the military Governor, Shepley, a so-called was held for members of the United States Congress in election the first and second State districts, each composed of about half the city of New Orleans and portions of the surrounding parishes. Those who had taken the oath of allegiance were allowed to vote. In the first district, Benjamin F. Flanders received 2,370 votes, and all others 273. In the second district, Michael Hahn received 2,799 votes, and all others 2,318. These persons presented themselves at Washington, and resolutions to admit them to seats were reported by the Committee on Elections in the House of Representatives. It was urged that the military Governor had conformed in every particular to the Constitution and laws of Louisiana, so that the election had every essential of a regular election in a time of most profound peace, with the exception of the fact that the proclamation for the election was issued by the military instead of the civil Governor of the State. The law required the proclamation to be issued by the civil Governor; so that, if these persons were admitted to seats after an election called by a military Governor, Congress thereby recognized as valid a military order of a so-called Executive that unceremoniously set aside a provision of the State civil law, and was anti-republican and a positive usurpation. Again, all the departments of the United States Government had acted on the theory that the Confederate States were in a state of insurrection, and that the Union was unbroken; under this theory, they could come back to the Union only with all the laws unimpaired which they themselves had made for their own government. Congress was as much bound to uphold the laws of Louisiana, in all their extent and in all their parts, as it was to uphold the laws of New York, or any other State, whose civil policy had not been disturbed. Both those persons, however, were admitted to seats-yeas, 92; nays, 44. The work of constituting the State of Louisiana out of the small portion of her population and of her territory held by the forces of the United States still went on. The proposition now was to hold a so-called State Convention and frame a new Constitution, but its advocates were so few that noThe object thing was accomplished during the year 1863. of the military power was to secure such civil authority as to enforce the abolition of slavery; and, until the way was |