Chapter VII: Only the first stage of its development, however, falls (2)

Meanwhile an election, the returns of which are extremely meagre, had been held on March 5 for the choice of county officers. Though the event was not without influence in confirming the faith of Unionists, it was chiefly of value in attracting the attention of the disloyal to the chances afforded by the proclamation of rehabilitating themselves in their former political rights. The result, however, was not so favorable as was expected by Governor Johnson or the President, and reconstruction in Tennessee once more sank to rest. From this condition it was again revived by the irrepressible Union men of the State. The East Tennessee convention of 1861, by appointing a permanent committee, had kept its organization alive. In April or May, 1864, this body called a convention at Knoxville to discuss reconstruction. Of this gathering one element favored the Crittenden Resolutions; the other, immediate emancipation. Probably it was this antagonism that prevented further action. The next we hear is that Brownlow and others signed a call for a second convention, which was held at Nashville on September 5. In this body forty or fifty counties were represented, some of them irregularly; that is, by volunteer delegates. This assembly recommended the election of a constitutional convention, the abolition of slavery in the State, and provided for taking part in the approaching Presidential election. The programme, however, was only partially carried out. On September 30, Governor Johnson issued a proclamation for holding the election, at which Union voters, so far as the unsettled condition of military operations permitted, cast their ballots for electors of President and Vice-President. It does not appear that in this election any attempt was made to choose a governor, a legislature or a constitutional convention; but that which met in July, 1863, constituted an executive committee, composed of five members from each division of the State, which after the Presidential election issued calls for a State convention at Nashville, December 19, 1864. “The people meet,” said the call, “to take such steps as wisdom may direct to restore the State of Tennessee to its once honored status in the great national Union.

* * * * *

“If you cannot meet in your counties, come upon your own personal responsibility. It is the assembling of Union men for the restoration of their own commonwealth to life and a career of success.”[38]

Hood’s advance upon Nashville preventing a response to this address, the convention did not meet till January 9, 1865. The enemy had then been dispersed. The State being free from further alarms of war, the convention met and proposed important alterations in the State constitution.

The first article provided: “That slavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are hereby forever abolished and prohibited throughout the State”; also that “The legislature shall make no law recognizing the right of property in man.” The old constitution of Tennessee prohibited the assembly from passing laws to emancipate slaves without the consent of the owner; that prohibition was now removed. “The declaration of independence and ordinance dissolving the federal relations between the State of Tennessee and the United States of America,” passed by the Legislature, May 6, 1861, was abrogated and declared “an act of treason and usurpation, unconstitutional, null and void.” All laws, ordinances, and resolutions of the usurped State government passed on and after the 6th day of May, 1861, providing for the issuance of State bonds; also all notes of the Bank of Tennessee or any of its branches issued on or after May 6, 1861, and all debts created in the name of the State by said authority were declared unconstitutional, null and void. Future legislatures were restrained from the redemption of said bonds. It was further provided that “The qualification of voters and the limitation of the elective franchise may be determined by the general assembly, which shall first assemble under the amended constitution.”

The convention completed its labors on January 26, 1865. The amendatory articles were submitted, February 22, to the people, and ratified by a vote of 21,104 to 40. The schedule provided in the event of ratification that the loyal people of the State should, on the 4th of March next thereafter, proceed by _general ticket_ to elect a governor and members to the general assembly to meet in the capitol at Nashville on the first Monday of April, 1865.

A proclamation of Governor Johnson, issued on January 26, referred to the respectable character of the convention and commended its wisdom in submitting for the approval of the electors the result of its deliberations. His executive powers had been employed to enable the people freely to express their judgment on the grave question before them. Provision, he declared, would be made to collect the sentiments of loyal Tennesseeans in the army. The paper concludes with this vigorous exhortation: “Strike down at one blow the institution of slavery, remove the disturbing element from your midst, and by united action restore the State to its ancient moorings again, and you may confidently expect the speedy return of peace, happiness, and prosperity.”[39]

About a month later, February 25, he had the happiness to congratulate the people of Tennessee on the favorable result of the election. By their solemn act at the ballot-box the shackles had been stricken from the limbs of more than 275,000 bondmen.

The convention which proposed the constitutional amendments had, in anticipation of its ratification, nominated William G. [“Parson”] Brownlow for Governor, and recommended a full legislative ticket. The nominee of the convention was chosen March 4, almost without opposition, receiving 23,352 votes against 35 scattering. Having been elected on a general ticket the members of both the Senate and House of Representatives received the same support as the Governor. The Legislature met at Nashville, and in a few days thereafter Mr. Brownlow was inaugurated. Civil administration was thus formally begun.

That the successive steps to restoration in Tennessee may be easily traced, the narrative has not been interrupted to relate even matters of undoubted importance. Almost a year before the occurrences described, the Republican national convention had assembled in the city of Baltimore, and on June 6, 1864, unanimously nominated Andrew Johnson for Vice-President on the ticket with Mr. Lincoln. Tidings of the fact aroused great enthusiasm when it became known in Nashville. In addressing an immense meeting called for that occasion Governor Johnson, among other things, said: “While society is in this disordered state, and we are seeking security, let us fix the foundations of our government on principles of eternal justice, which will endure for all time. There are those in our midst who are for perpetuating the institution of slavery. Let me say to you, Tennesseeans, and men from the Northern States, that slavery is dead. It was not murdered by me. I told you long ago what the result would be if you endeavored to go out of the Union to save slavery; and that the result would be bloodshed, rapine, devastated fields, plundered villages and cities; and therefore I urged you to remain in the Union. In trying to save slavery you killed it, and lost your own freedom.”[40]

In his letter to Hon. William Dennison, accepting the nomination, he wrote:

The authority of the Government is supreme, and will admit of no
rivalry. No institution can rise above it whether it be slavery or
any organized power. In our happy form of government all must be
subordinate to the will of the people, when reflected through the
Constitution and the laws made pursuant thereto—State or Federal.
This great principle lies at the foundation of every government, and
cannot be disregarded without the destruction of the government
itself.

In accepting the nomination I might here close, but I cannot forego
the opportunity of saying to my old friends of the Democratic party
_proper_, with whom I have so long and pleasantly been associated,
that the hour has now come when that great party can justly
vindicate its devotion to true democratic policy and measures of
expediency. The war is a war of great principles. It involves the
supremacy and life of the Government itself. If the rebellion
triumphs, free government—North and South—fails. If, on the other
hand, the Government is successful, as I do not doubt, its destiny
is fixed, its basis permanent and enduring, and its career of honor
and glory just begun. In a great contest like this, for the
existence of free government, the path of duty is patriotism and
principle. Minor considerations and questions of administrative
policy should give way to the higher duty _of first preserving the
Government_, and then there will be time enough to wrangle over the
men and measures pertaining to its administration.[41]

For reasons at which Mr. Lincoln hinted in his letter of March 26, 1863, few men in Congress exerted in the beginning of the war so decided an influence upon public opinion in the North as did Mr. Johnson. His conduct as military governor in no way diminished this popularity. His courage in that trying position no less than his devotion to the interests of the Union won him ardent admirers in every loyal State.

Vice-President Hamlin appears to have been the victim of an intrigue which represented him as being no material source of strength to the government and as scarcely loyal to the administration. This injurious suspicion, which seems to have had no substantial basis in truth, happened to coincide with a growing conviction that the Republican party should strengthen itself by placing on the ticket with Lincoln some prominent leader of the opposition. In this connection the names of General Butler, John A. Dix, Daniel S. Dickinson and Andrew Johnson were mentioned. The last named was charged in his administration of the office of military governor with harshness and even with oppression. Investigation proved these rumors to be without foundation, and Mr. Lincoln was not displeased to find them groundless. It does not appear that he was especially favorable to Johnson, but he regarded him as indispensable to the Union cause in Tennessee; Johnson was a slave-holder, was somewhat more outspoken than Butler or Dix, and a more conspicuous representative of the large class known as War Democrats; above all he was an able exponent of Southern Union sentiment and he came from the very heart of the Confederacy. Perhaps no single element of strength made him more acceptable to the majority of the convention than this last consideration. Even these qualifications might not have singled him out for the distinction conferred were it not for the enthusiasm created by a remarkable speech of Horace Maynard, which mentioned Mr. Johnson as a man who “stood in the furnace of treason.” His administration as military governor had been distinguished for vigor and ability, and it does not appear that the radical Republicans then regarded his State without the Union. Some of his measures were undoubtedly severe, but the peculiar situation in Tennessee required the employment of methods not adapted to times of peace. Mr. Lincoln could not, of course, show his hand in the Baltimore convention. In fact he repeatedly declined to interfere.[42]

On October 15, 1864, the ten electors on the McClellan ticket presented through Mr. John Lellyett, one of their number, a protest to the President against the proclamation published by Governor Johnson relative to the pending election. His paper, they asserted, contained provisions for holding elections which differed materially from the mode prescribed by the laws of Tennessee. The proclamation, it was alleged, would admit persons to vote who were not entitled by the State constitution to participate in the election; by another provision which authorized the opening of but one polling-place in each county, many legal voters would be unable to exercise the franchise. The unusual and impracticable test oath proposed, was stated as a further grievance, and they complained generally of military interference with the freedom of elections. To their representations Mr. Lincoln replied orally that General McClellan and his friends could manage their side of the contest in their own way. He could manage his side of it in his way.[43] In a written reply of the 22d, however, the President said that he perceived no military reason for interfering in the matter, and on the same occasion reminded the protestants that the conducting of a Presidential election in Tennessee under the old code had become an impossibility.[44]

In their reply to the written communication of the President, they asserted that an orderly meeting of General McClellan’s friends had been broken up by Union soldiers, and a reign of terror inaugurated in Nashville. These acts having been countenanced by Governor Johnson, they announced the withdrawal of the McClellan electoral ticket in Tennessee.[45]

In these circumstances the Union electors were, of course, chosen; but their votes, though offered, were not counted by Congress in the joint convention of February 8, 1865, for the reason that Tennessee was on November 8 preceding in such a state that no free election was held.[46]

-----

Footnote 1:

McPherson’s Political History of the United States, p. 1.

Footnote 2:

McPherson’s Pol. Hist., pp. 389–399; “Parson” Brownlow’s Book, pp. 54,
159, 160; Lalor’s Cyclopedia of Political Science, Political Economy
and United States History, Vol. III. p. 698.

Footnote 3:

Letters and State Papers of Abraham Lincoln, Vol. II. p. 112. The
edition of Nicolay and Hay is used throughout.

Footnote 4:

The Loyal Mountaineers of Tennessee, p. 24.

Footnote 5:

More correctly, 301,056. Ibid.

Footnote 6:

The Loyal Mountaineers of Tennessee, p. 32.

Footnote 7:

Ibid.

Footnote 8:

Thirty years before President Lincoln published his Emancipation
Proclamation Great Britain abolished slavery throughout her colonies.
Naturally this action was viewed in no friendly spirit by the slave
interest in America, for it brought the free negro to the very door of
the Southern States, and though it was regarded as a menace to the
“peculiar institution,” it was not until a positive loss was sustained
that any controversy arose with England. In October, 1841, the brig
_Creole_, of Richmond, with a cargo of 135 slaves left Hampton Roads
for New Orleans. The negroes, under Madison Washington, killed one of
the owners, took possession of the vessel and steered her into the
port of Nassau. There those slaves not expressly charged with murder
were set at liberty, and though the administration demanded their
surrender they were not given up. The experience of the _Creole_ was
not singular, several cases of a similar nature being recorded. These
facts showed the danger of navigating the Bahama channel after 1833,
and at least one reason for preferring the overland route down the
Tennessee valley was an expectation of avoiding such accidents.—(See
Wilson’s Rise and Fall of the Slave Power, Vol. I. pp. 443–444;
Lalor’s Cyclopedia of Political Science, etc., Vol. I. pp. 709–710.)

Footnote 9:

Brownlow’s Book, p. 52.

Footnote 10:

The Loyal Mountaineers of Tennessee, pp. 80–81.

Footnote 11:

Brownlow’s Book, p. 67.

Footnote 12:

Art. I. sec. 10, Constitution of the United States.

Footnote 13:

McPherson’s Pol. Hist., p. 5.

Footnote 14:

Misc. Doc. No. 55, H. of R., 1 Sess. 39th Cong., p. 5.

Footnote 15:

Why The Solid South? p. 170.

Footnote 16:

Cutt’s Conquest of California and New Mexico, p. 246.

Footnote 17:

Statesman’s Manual, Vol. IV. p. 1742.

Footnote 18:

Ibid.

Footnote 19:

The Lost Cause, p. 209.

Footnote 20:

Ann. Cycl., 1862, p. 763.

Footnote 21:

Life and Speeches of Andrew Johnson, pp. 451–456. Boston: Little,
Brown & Co. 1866.

Footnote 22:

Life, Speeches, and Services of Andrew Johnson, pp. 101–104.
Philadelphia: T. B. Peterson & Brothers.

Footnote 23:

Memorial Addresses on the Life and Character of Andrew Johnson, pp.
76–80; Memoir by Frank Moore, pp. xxvi-xxvii in Life and Speeches of
Andrew Johnson. Boston: Little, Brown & Co.

Footnote 24:

Life of Andrew Johnson, pp. 98–101; Philadelphia: T. B. Peterson &
Brothers.

Footnote 25:

Ann. Cycl., 1863, p. 828.

Footnote 26:

Letters and State Papers of Abraham Lincoln, Vol. II. p. 318.

Footnote 27:

Abraham Lincoln, A History by Nicolay & Hay, Vol. VIII. p. 440.

Footnote 28:

Letters and State Papers of Lincoln, Vol. II. p. 405.

Footnote 29:

History of Abraham Lincoln, by Isaac N. Arnold, p. 303.

Footnote 30:

Letters and State Papers of Abraham Lincoln, Vol. II. p. 408.

Footnote 31:

Ibid., p. 419.

Footnote 32:

Letters and State Papers of Lincoln, Vol. II. p. 443.

Footnote 33:

Art. I. sec. 5, Constitution of the U. S.

Footnote 34:

Letters and State Papers of Lincoln, Vol. II. pp. 443–444.

Footnote 35:

Ibid., p. 486.

Footnote 36:

Letters and State Papers of Lincoln, Vol. II. p. 487.

Footnote 37:

Ibid., pp. 504–505.

Footnote 38:

Misc. Doc. No. 55, p. 5, H. of R., 1 Sess. 39th Cong.

Footnote 39:

Misc. Doc. No. 55, p. 9, H. of R., 1 Sess. 39th Cong.

Footnote 40:

Life of Andrew Johnson, pp. 159–160.

Footnote 41:

Life of Andrew Johnson, pp. 160–161. New York: D. Appleton & Co.,
1866.

Footnote 42:

McClure’s Lincoln and Men of War Times, pp. 106–108; Blaine’s Twenty
Years of Congress, Vol. II. p. 7; Hamlin’s Life and Times of Hannibal
Hamlin, pp. 449–489 and 591–615.

Footnote 43:

McPherson’s Pol. Hist., pp. 438–439.

Footnote 44:

Ibid., p. 425.

Footnote 45:

Ibid., p. 441.

Footnote 46:

For a discussion of this subject see Chapter IX.

II
LOUISIANA

The first movement toward reconstruction in Louisiana, as in the case of Tennessee, was bound up with the war powers of the President, and, no doubt, was made with some expectation of aiding his military plans. The thought of restoring a loyal government there proceeded quite naturally from the peculiar situation in the State. Though not so nearly unanimous for secession as South Carolina, her people acted with energy and promptness when they received tidings of “this last insult and outrage,” as the election of Mr. Lincoln was sensationally styled.[47] Three days were deemed sufficient for deliberation, and the convention, January 25, 1861, passed an ordinance of secession. Two weeks before this assembly met at Baton Rouge, the arsenal and the forts, a public building and a revenue cutter had been seized by State troops from New Orleans. In the mint and the custom house of that city more than half a million dollars was secured for the Confederate States, and in accepting these funds the Montgomery Congress expressed its “high sense of the patriotic liberality” of Louisiana.[48] This act of generosity, however, loses much of its merit when it is remembered that both the coin and bullion in the mint, as well as the customs, belonged to the Federal government. Besides, there was then no scarcity of money in the State, for Northern enterprise had found for her cotton and her sugar profitable markets both at home and abroad. It was benefits of this sort, enjoyed in the Union, that enabled Governor Moore in January, 1861, to report to his Legislature an overflowing treasury.[49] This undoubted prosperity served only to aggravate the war fever. Enthusiasm in New Orleans was only less ardent and general than in Charleston. Business was almost suspended, and by the first of June no less than 16,000 residents of Louisiana were serving in the Confederate army.[50]

President Lincoln’s proclamation of April 19 preceding had inaugurated a blockade of every port within the State. The early days of July witnessed the disappearance of Governor Moore’s boasted surplus, and during the summer New Orleans became bankrupt;[51] her foreign commerce was destroyed by the blockade, her credit had vanished. Though enlistments continued without interruption, signs of financial distress multiplied with the approach of winter. Rebellion, it was soon discovered, was not attended with unmixed blessings; bad government had produced its usual consequences, and when Governor Taylor, late in the summer of 1862, undertook to raise an army for the defence of his State he was surprised at the universal apathy; neglect and disaster had brought disunionists to a condition little short of hostility to the Richmond government.[52]

Union men in southern Louisiana had not been unobservant of these signs; permanent residents of this portion of the State had, for the most part, maintained their loyalty to the General Government. Indeed, a decided majority of them in the election of 1860 had voted for Bell and Douglas, and though here, as elsewhere in the South, ardent secessionists were found, the proceedings in the convention took the Union men by surprise.[53] In the interval they had refrained from violence, but had not become reconciled to oppression.

The importance of New Orleans to their cause had not been overlooked by Confederate authorities, and that city was held firmly in their grasp until the fleet of Captain Farragut, toward the close of April, 1862, steamed up in hostile array before its defences. The occupation by General Butler’s army of this strategic position ended in southern Louisiana the activity of the more extreme secessionists, and though some restlessness at the presence of Federal forces was pretended by even Union men, they had not until the surrender made any serious effort to help themselves. Under protection of the army, however, they commenced immediately to form Union associations for the purpose of developing the loyal sentiment in this part of the State. Resolutions recommending an election were passed by these organizations; newspapers discussed the question, and in various ways it was forced upon the attention of the President.[54] The more prudent and intelligent among them began under encouragement of Federal troops to consider measures for relief; the less practical commenced writing complaints to friends in the North.

In a private letter of July 26, 1862, to Hon. Reverdy Johnson, then in New Orleans investigating General Butler’s relations with foreign consuls, Mr. Lincoln, noticing a reference to the restlessness of the people under the rule of General Phelps, asks the Maryland Senator to pardon him for believing the complaint “a false pretense.” A way to avert the inconveniences arising from military occupation was for the people of Louisiana “simply to take their place in the Union upon the old terms.”[55] Writing two days later to Cuthbert Bullett, a Southern gentleman who appears to have enjoyed his personal esteem and confidence, the President, after mentioning difficulties in the way of establishing civil authority in the State, suggested a method of avoiding them: “The people of Louisiana who wish protection to person and property,” he wrote, “have but to reach forth their hands and take it. Let them in good faith reinaugurate the national authority, and set up a State government conforming thereto under the Constitution. They know how to do it, and can have the protection of the army while doing it. The army will be withdrawn so soon as such State government can dispense with its presence; and the people of the State can then, upon the old constitutional terms, govern themselves to their own liking.”[56] If, however, Union men exerted themselves no further than criticism of the Federal Government, it was more than intimated that there were to be expected greater injuries than military necessity had yet inflicted.

The pressure of events appears even then to have been forcing the President in the direction of emancipation. To August Belmont, of New York, who enclosed the complaints of a New Orleans correspondent, Mr. Lincoln, July 31, 1862, repeated in substance what had already been written to Mr. Bullett, and added: “Those enemies must understand that they cannot experiment for ten years trying to destroy the government, and if they fail still come back into the Union unhurt. If they expect in any contingency to ever have the Union as it was, I join with the writer [Mr. Belmont’s correspondent] in saying, ‘Now is the time.’”[57]

The appointment in August, 1862, of General George F. Shepley as military governor may be regarded as the first act in the restoration of a loyal government for Louisiana. His selection, though probably intended as a private commendation of the judgment of General Butler, who had already designated him as Mayor of New Orleans, was never considered by that officer adequate atonement for the public censure implied in his removal, December, 1862, from command of the Department of the Gulf.

Upon the Federal occupation of New Orleans and adjacent territory all functions of the disloyal government therein immediately ceased. As controversies were constantly arising the establishment of courts had become a necessity. At first these questions were for the most part adjudicated by General Butler himself, but the pressure of military and other affairs compelled him soon to refer their settlement to civilians or to army officers especially chosen for the purpose. This uncertain system of justice, though immeasurably better than none, led to the institution of courts each of which was known by the name of the officer holding it. Accused persons were brought to trial, and judgments executed by soldiers detailed for such duty. No formal record of proceedings in these tribunals appears to have been kept, though memoranda of judgments rendered were, no doubt, made by an officer who came eventually to be designated as clerk.

For the decision of questions relating exclusively to the force under his command General Butler some time in June, 1862, organized a tribunal known as the Provost Court of the Army of the United States, over which Major Joseph M. Bell presided. Questions in no way connected with the military, especially matters of police and the punishment of crimes, were often submitted for its determination. Aggrieved persons, without reflecting upon the consequence of their acts, naturally appealed for redress to the holder of power. Thus the authority of this institution silently extended, and by the autumn of 1862 it exercised unquestioned jurisdiction over all criminal cases arising in the city of New Orleans.[58] In the absence of courts for adjudicating civil questions they, too, were referred to its consideration. All functions of government having been suspended by the capture of the city, it became the duty of the Federal commander, and his right by the laws of war, to provide, among other things, for the administration of justice.

One of the early acts of General Shepley after his appointment as Military Governor was to establish a system of courts for the State. Most of the former officials having fled after the surrender, he was compelled practically to create new tribunals, and this task he greatly simplified by reviving those institutions of justice with which the people of Louisiana were already familiar. John S. Whittaker was accordingly appointed Judge of the Second District Court of the parish of Orleans. Besides possessing in civil matters the ordinary powers of a local court the old tribunal of that name had been a court of probates and successions. The new exercised all the powers of the old court. It should be remembered, however, that the latter derived its authority from the laws of Louisiana, while the former owed its existence to the war powers of the Federal Executive. Its jurisdiction extended to civil cases generally where the defendant resided in the parish of Orleans or was a non-resident of the State.[59]

Judge Hiestand was appointed to the bench of the Fourth District Court of the parish of Orleans. Besides possessing the general authority of other district courts in that parish it entertained appeals from justices’ courts; indeed, these constituted a large part of its business.[60]

The Sixth District Court of the parish of Orleans, revived soon after the capture of the city, is, because of the incumbent of that bench, Judge Rufus K. Howell, of greater interest than either of the preceding. Under a commission received from the State of Louisiana before its attempted secession he continued to preside over that tribunal while the disunion party ruled New Orleans, and performed his functions up to the very hour of its surrender to the Federal authorities. Having early taken the oath of allegiance to the national Government he was permitted to resume his functions.[61] Like the tribunals mentioned, this court retained and exercised all the powers that it possessed as originally constituted.

These courts, instituted during September and October, 1862, entered upon the discharge of their duties about the 1st of November following. They were the only tribunals of civil jurisdiction in Louisiana, and that jurisdiction was limited, as against defendants resident of the State, to citizens of the parish of Orleans. As to inhabitants beyond the limits of that parish there was no court in which they could be sued. Though the Federal forces held several counties in this condition, their tenure fluctuated with the fortunes of war. A court was therefore needed whose jurisdiction would expand with the advance, and contract with the retreat, of the Union armies. The Provost Court was not deemed adequate, and indeed was never designed to meet such contingencies. To supply this deficiency a tribunal of very extensive powers, designated as “a court of record for the State of Louisiana,” was constituted by Executive order on October 20. Of this flexible institution Charles A. Peabody, of New York, a friend of Secretary Seward, was made provisional judge. Besides being empowered to select a prosecuting attorney, a marshal and a clerk, and to make rules for the exercise of his jurisdiction, he was authorized “to hear, try and determine all causes, civil and criminal, including causes in law, equity, revenue and admiralty, and particularly 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.” These officers were to be paid out of the contingent fund of the War Department, and a copy of the Executive order, certified by the Secretary of War, was “held to be a sufficient commission” for the Judge.

This institution, made up as to its _personnel_ in the North, was sent from New York with the great expedition of General Banks constituted and organized for immediate business to Louisiana. Though Judge Peabody, accompanied by Augustus de B. Hughes, Isaac Edward Clarke and George D. Lamont, who had been chosen, respectively, clerk, marshal and prosecuting attorney, arrived in New Orleans December 15, 1862, the opening of court was delayed till the 29th of that month by a change of administration in that Department.[62]

In addition to the tribunals described many other courts were established about this time; of these the Supreme Court of Louisiana is the only one which appears to require especial mention. In former times under the State judicial system appeals had lain to this institution, and it was accordingly held that decisions of the courts now created were subject to its revision. In this manner many of their judgments were stayed and in suspense, so that the new district courts were of little practical benefit. The necessity of a tribunal to remedy this deficiency and adjudicate the accumulated cases of former years soon became apparent, and in April, 1863, Mr. Peabody was appointed Chief Justice of the State Supreme Court; associated with him on this bench were judges chosen from among the people of Louisiana.

Nearly a week before his appointment of Judge Peabody, Mr. Lincoln, by the hand of Hon. John E. Bouligny, who had not left his seat in the House of Representatives when Southern delegations withdrew from Congress, sent to General Butler, Governor Shepley and other Federal officers having authority under the United States in Louisiana a communication requesting each of them to assist Mr. Bouligny in his effort to secure “peace again upon the old terms under the Constitution of the United States.”[63] This desirable end was to be attained by the election of “members to the Congress of the United States particularly, and perhaps a legislature, State officers, and United States senators friendly to their object.” Federal officers were instructed to give the people a chance to express their wishes at these elections. “Follow forms of law,” wrote the President, “as far as convenient, but at all events get the expression of the largest number of the people possible. All see how such action will connect with and affect the proclamation of September 22. Of course the men elected should be gentlemen of character, willing to swear support to the Constitution, as of old, and known to be above reasonable suspicion of duplicity.”[64]

Loyal leaders, believing that Northern men holding office under the General Government in Louisiana would be set up as candidates, communicated their fears to the President, who sent to Governor Shepley a fortnight before the election a letter of which the essential portion is as follows:

We do not particularly need members of Congress from there to enable
us to get along with legislation here. What we do want is the
conclusive evidence that respectable citizens of Louisiana are
willing to be members of Congress and to swear support to the
Constitution and that other respectable citizens there are willing
to vote for them and send them. To send a parcel of Northern men
here as representatives, elected, as would be understood (and
perhaps really so), at the point of the bayonet, would be disgusting
and outrageous; and were I a member of Congress here, I would vote
against admitting any such man to a seat.[65]

The note of sincerity is unmistakable throughout, and in those Representatives and Senators opposed to Executive policy the concluding sentences especially must have excited strange emotions when they re-read in after years their impassioned attacks in Congress upon that dark spirit who, it was gravely alleged, labored with might unquestioned to subordinate the Legislative branch of Government.

The Union associations referred to appointed committees who waited upon General Shepley and demanded an election. This he hesitated to call until considerable pressure had first been exerted. The sentiments of the President concurring with the local feeling in New Orleans, Shepley finally yielded, and on November 14, 1862, issued a proclamation for an election to be held December 3d following. This election, in the language of his proclamation, was ordered “for the purpose of securing to the loyal electors” of both the First and Second Congressional Districts “their appropriate and lawful representation in the House of Representatives of the United States of America, and of enabling them to avail themselves of the benefits secured by the proclamation of the President of the United States to the people of any State, or part of a State, who shall on the first day of January next be in good faith represented in the Congress of the United States, by members chosen thereto at elections wherein a majority of the qualified voters of such State have participated.”[66]

In addition to the qualifications prescribed by the laws of Louisiana, General Shepley required each elector to take an oath of allegiance to the United States, and from among the old and respected citizens of the State appointed sheriffs and commissioners of election, who performed their duties to the entire satisfaction of both candidates and voters. The army, for reasons given above, refrained from all manner of interference, and no Federal office-holder was a nominee.

For the first time in many years, it was admitted, every qualified elector might freely cast his ballot without fear of intimidation or violence. In a total of 2,643 votes Benjamin F. Flanders was chosen, with little opposition, for the First, and Michael Hahn, by a safe majority, for the Second Congressional District. A larger vote was actually cast for Flanders than had been received by his predecessor, and in both districts 7,760 citizens, or about half the usual number, appeared at the polls. When it is remembered that four thousand soldiers who enlisted in Butler’s army from this part of the State did not participate in the contest, that many citizens from this section were serving in the Confederate army and that not a few Union men were exiles in the North or in Europe the vote in this election was by no means light.

With credentials signed by Governor Shepley, Messrs. Hahn and Flanders appeared in Washington as claimants for seats in Congress. After a thorough investigation of the election and several ingenious arguments in opposition both were admitted, February 17, 1863, though not without considerable misgiving, as Representatives for the remainder of the term, which expired March 3 following. For their exclusion the opposition relied mainly upon these grounds:

_First._ The election, it was asserted, was brought about by a threat of interference with slave property if the State was not represented in Congress by January 1, 1863; this was a measure of coercion, and the compliance of citizens in appearing at the polls was ascribed to selfish motives rather than to loyal and patriotic sentiments.

_Second._ The existence of any vacancy in a constitutional sense was at least doubtful; and even if vacancies existed in these districts the authority of a military governor to call an election was denied.

_Third._ It was objected that Governor Shepley had dispensed with the registry required by law and had empowered commissioners of election to decide upon the qualifications of voters; finally, by requiring an oath of allegiance to the United States, he had imposed upon electors a test unknown to the laws of Louisiana.[67]

While the cases of Messrs. Hahn and Flanders were pending the edict of freedom had gone forth, for the President, as announced in his preliminary proclamation of September 22, had declared, January 1, 1863, “as a fit and necessary war measure,” that “all persons held as slaves within said designated States and parts of States, are and henceforward shall be free.”[68] Louisiana was named as one of the States in rebellion. From the operation of this measure, however, the city of New Orleans and thirteen parishes of the State were excepted.

The admission, February 17, of Hahn and Flanders gave new life to the political reorganization of the State.[69] But with this revival of interest there was discovered among the supporters of the Federal Government a difference of opinion as to the best course to be pursued in the circumstances. This division of sentiment arose concerning the wisdom of retaining slavery in those parishes not included in the President’s proclamation. The Union associations, each appointing five delegates, organized what they termed a Free State General Committee with Thomas J. Durant as president. This body, holding anti-slavery views and assuming that rebellion had destroyed the fundamental law, took measures to elect delegates to a general convention for the purpose of framing a new constitution prohibiting slavery. Their plan was approved by General Shepley, who, June 12, 1863, appointed Mr. Durant Attorney-General for the State, with power to act as commissioner of registration.[70] He was ordered on the same day to make an enrollment of all free white male citizens of the United States having resided six months in the State and one month in the parish, who should each take the oath of allegiance and register “as a voter freely and voluntarily for the purpose of organizing a State government in Louisiana, loyal to the Government of the United States.”[71]

The conservative element, though less active, was by no means indifferent to these measures, and sent to Washington a committee of planters to consult the President. They represented in a communication to him that they had “been delegated to seek of the General Government a full recognition of all the rights of the State as they existed previous to the passage of an act of secession, upon the principle of the existence of the State constitution unimpaired, and no legal act having transpired that could in any way deprive them of the advantages conferred by that constitution.” They further requested him to direct the Military Governor to order an election on the first Monday of November following for all State and Federal officers.[72] To this committee, composed of E. E. Malhiot, Bradish Johnson and Thomas Cottman, Mr. Lincoln, under date of June 19, 1863, replied “that a respectable portion of the Louisiana people desired to amend their State constitution, and contemplated holding a State convention for that object. This fact alone, as it seems to me, is a sufficient reason why the General Government should not give the committal you seek to the existing State constitution. I may add that while I do not perceive how such committal could facilitate our military operations in Louisiana, I really apprehend it might be so used as to embarrass them.”[73]

It is evident, when we recall the letter of July 26, 1862, to Reverdy Johnson, that the President, then only contemplating emancipation, had, since his proclamation had gone forth, taken much more advanced ground.[74] The army was still his main reliance, and the wisdom of restoring a loyal government as well as the method of that restoration was regarded favorably or otherwise as it appeared to facilitate or embarrass military operations.

Relative to an election in November he said, “There is abundant time without any order or proclamation from me just now.” Though their request was courteously denied, he assured the committee that the people of Louisiana should not lack an opportunity for a fair election for both Federal and State officers by want of anything within his power to give them.[75]

The political reorganization of the State was at this point interrupted by the absence at Port Hudson of General N. P. Banks, then in command of the Department of the Gulf. So energetic and successful was the Confederate General Taylor that by July 10, when he received intelligence of the fall of Port Hudson and the surrender of Vicksburg, his mounted scouts had been pushed to within sixteen miles of New Orleans.[76] The surrender in these strongholds of more than 40,000 men was a crushing blow to the Richmond Government; enough troops were disengaged by these victories to overwhelm the enemy that menaced New Orleans, and General Taylor hurriedly concentrated his army in the valley of the Red River to observe the movements of the Federal commander. The Union picket line marked at this time the bounds of Governor Shepley’s civil jurisdiction; indeed, it was not greatly extended until the surrender of General E. Kirby Smith late in May, 1865, after the engagement at Brazos. Eastern Louisiana, with Alabama and Mississippi, had passed a few weeks earlier under Federal control.

The great numbers withdrawn from production in the South combined with a rigorous enforcement of the blockade had occasioned a cotton famine in the markets of the world. To relieve this condition an outlet was sought for the abundant crops of the Red River country; and this fact was probably, not without considerable influence, in determining the course of the expedition into Texas, which was intended to accomplish a very different though scarcely less important purpose.

Though the vigilance of Mr. Adams, United States Minister to England, was rewarded by the abandonment in that country of any further attempt to build cruisers of the Alabama type, the Confederate naval agent by no means despaired of dealing still severer blows to the commerce of the North, and, attracted by promises which appear to have been authorized by the ruler of France, changed his field of activity from Liverpool to Bordeaux, where a ship-builder was engaged to construct two formidable rams. With the attempts to get these under the Confederate flag this essay is not concerned.[77] French interests in Mexico appeared at that time to require the cultivation of friendly relations with what some European States believed was destined to become a new power among the nations of the world; hence Napoleon’s encouragement to the Confederate representatives abroad. This situation was so seriously regarded by the Government at Washington that even at considerable sacrifice it was determined to plant the Union flag somewhere in Texas. To effect this object General Banks had considered and submitted to the War Department plans of his own; these, however, appear to have been reluctantly abandoned because of repeated instructions from General Halleck, and the movement toward Shreveport in the spring and early summer of 1864 was begun. From the protracted and envenomed controversy to which it gave rise among the officers on both sides its disastrous ending is familiar to all.[78]

While this joint land and naval expedition was yet in contemplation Mr. Lincoln found time to inform the Federal commander of his opinions respecting the establishment of a civil government in Louisiana. In his letter of August 5, 1863, to General Banks he wrote:

While I very well know what I would be glad for Louisiana to do, it
is quite a different thing for me to assume direction of the matter.
I would be glad for her to make a new constitution recognizing the
emancipation proclamation, and adopting emancipation in those parts
of the State to which the proclamation does not apply. And while she
is at it, I think it would not be objectionable for her to adopt
some practical system by which the two races could gradually live
themselves out of the old relation to each other, and both come out
better prepared for the new. Education for young blacks should be
included in the plan. After all, the power or element of “contract”
may be sufficient for this probationary period; and, by its
simplicity and flexibility, may be the better.

As an anti-slavery man, I have a motive to desire emancipation which
pro-slavery men do not have; but even they have strong enough reason
to thus place themselves again under the shield of the Union; and to
thus perpetually hedge against the recurrence of the scenes through
which we are now passing.

He expressed his approval of the registry which he supposed Mr. Durant was making with a view to an election for a constitutional convention, the work of which, he hoped, would reach Washington by the meeting of Congress in December. Before concluding this letter he added: “For my own part, I think I shall not, in any event, retract the emancipation proclamation; nor, as executive, ever return to slavery any person who is freed by the terms of that proclamation, or by any of the acts of Congress.”[79]

He again invites attention to the fact that if Louisiana should send members to Congress their admission would depend upon the respective Houses and not to any extent upon the wishes of the Executive.

Copies of this communication he intended to send to Hahn, Flanders and Durant. Three months later, when the gentleman last named informed him that nothing had yet been done toward the enrollment, Mr. Lincoln wrote immediately to General Banks a letter which at once reveals both the extent of his interest in this subject and his extreme disappointment on learning that his wishes had been but little regarded. Flanders, then in Washington, confirmed the account of Durant. “This disappoints me bitterly,” said the letter of November 5, 1863, and though the President did not blame either General Banks or the Louisiana leaders for this apparent neglect he urged them “to lose no more time.” “I wish him [General Shepley], ...” continued the letter, “without waiting for more territory, to go to work and give me a tangible nucleus which the remainder of the State may rally around as fast as it can, and which I can at once recognize and sustain as the true State government. And in that work I wish you and all under your command to give them a hearty sympathy and support.

“The instruction to Governor Shepley bases the movement (and rightfully, too) upon the loyal element. Time is important. There is danger, even now, that the adverse element seeks insidiously to preoccupy the ground. If a few professedly loyal men shall draw the disloyal about them, and colorably set up a State government, repudiating the Emancipation Proclamation and reëstablishing slavery, I cannot recognize or sustain their work. I should fall powerless in the attempt. This Government in such an attitude would be a house divided against itself.

“I have said, and say again, that if a new State government, acting in harmony with this government, and consistently with general freedom, shall think best to adopt a reasonable temporary arrangement in relation to the landless and homeless freed people, I do not object; but my word is out to be for and not against them on any question of their permanent freedom. I do not insist upon such temporary arrangement, but only say such would not be objectionable to me.”[80]

It should be remembered that Thomas J. Durant, who was authorized to make the enrollment as well as to appoint “registers” to assist him, was spokesman of the wealthy and influential class of planters, or the conservative element whose interests opposed any disturbance of existing conditions. He appears to have drawn for the President a somewhat gloomy picture of the political situation in Louisiana, and finally to have protested against the government organized by the adverse party. The outlook there, however, was not so discouraging as represented; for as early as October 9 Governor Shepley had renewed his order for the registration, modifying the former one so far as to include “all loyal citizens.”

Interest was somewhat quickened by the announcement of certain conservative leaders of an intention to hold a voluntary election in conformity with the old constitution and laws of the State. On October 27, 1863, an address signed by the president and vice-president of the Central Executive Committee was published in the papers of New Orleans. This appeal, directed to the loyal citizens of Louisiana, begins:

The want of civil government in our State can, by a proper effort on
your part, soon be supplied, under laws and a constitution formed
and adopted by yourselves in a time of profound peace. It is made
your duty, as well as your right, to meet at the usual places, and
cast your votes for State and parish officers, members of Congress,
and of the State Legislature.

* * * * *

The day, as fixed by our laws, is Monday, the 2d day of November
next, 1863. There is nothing [proceeds the address] to prevent your
meeting on the day fixed by law, and selecting your agents to carry
on the affairs of government in our own State. The military will not
interfere with you in the exercise of your civil rights and duties,
and we think we can assure you that your action in this respect will
meet the approval of the National Government.

The failure of those citizens addressed to exercise their rights, it was asserted, would subject “the country” to the danger of being thrown as “vacated” territory into the hands of Congress.[81]

The Free State Committee having been invited to coöperate, a correspondence ensued between the rival organizations; but, on the ground that this movement was both illegal and unjust, the Free State men declined to participate in the election. In their reply the latter assert that “There is no law in existence, as stated by you [The Executive Central Committee], directing elections to be held on the first Monday of November.

“The constitution of 1852, as amended by the convention of 1861, was overthrown and destroyed by the rebellion of the people of Louisiana, and the subsequent conquest by the arms of the United States does not restore your political institutions.”[82]

The reply then proceeds to discuss the injustice of the movement, and upon this subject its reasoning is entitled to more respect. As to the status of the constitution of 1852, it is not easy to comprehend how the secession convention, a body universally regarded as revolutionary, could amend, in the manner attempted, the fundamental law, seeing that this revolution was not yet crowned with success.

Though no general election was held in response to this address, voting took place in two parishes, and certain persons were chosen as Representatives in Congress. Before giving an account of this election of November 2, 1863, it may be proper to notice a petition submitted by the free colored people of New Orleans to Governor Shepley praying to be registered as voters so that they could “assist in establishing in the new Convention a Civil Government” for their “beloved State of Louisiana.” This address, prepared at a meeting on November 5, and not without ability, recites in appropriate language the services rendered by free colored men to both the Nation and the State. It is sufficient to observe here that their prayer was not granted. The paper itself will be considered in discussing the successive steps which led to the complete enfranchisement of the race.[83]

The preceding chapter has noticed President Lincoln’s Amnesty Proclamation of December 8 as well as that part of the accompanying message to Congress discussing his plan for restoring Union governments in the insurgent States. The House had not completed its organization for the Thirty-eighth Congress when Thaddeus Stevens, a Representative from Pennsylvania, either from curiosity or an anxiety to oppose, as he conceived, the policy of the President, inquired what names had been omitted in the call of members. At a later stage of its first meeting, December 7, 1863, he again referred to this subject by asking to have read the credentials of persons claiming to be Representatives “from the so-called State of Louisiana.” The acting clerk facetiously promised compliance, and read a certificate signed by Mr. John Leonard Riddell naming A. P. Field, Thomas Cottman and Joshua Baker as persons elected to represent respectively the First, Second and Fifth Congressional Districts of the State.[84]

On a resolution “That A. P. Field is not entitled to a seat in this House from the State of Louisiana,” reported January 29, 1864, from the Committee of Elections, his right to admission was fully discussed.