In Davis' inaugural at the institution of their permanent constitution, February 22d, 1862, he said :—

66

Through all the necessities of an unequal struggle, there has been no act on our part to impair personal liberty or the freedom of speech, of thought, or of the press. The courts have been open, the judicial functions fully executed, and every right of the peaceful citizen maintained as securely as if a war of invasion had not disturbed the land." 88

Within five days he approved an act which authorized the suspension of the writ of habeas corpus. On March first he placed Richmond under martial law, and passports were required from those who wished to enter or leave the Confederate capital until his government abandoned it.89 Two later acts extended his powers in this respect,90 under which arbitrary arrests were made throughout the whole Confederacy. These statutes and proceedings were denounced as unconstitutional in the Congress, the State legislatures, and the courts, and created much opposition to the Confederacy, although the courts upheld them.91 The VicePresident, Alexander H. Stephens, was their vigorous opponent.92 When a Confederate general had appointed a civil governor of the city of Atlanta, he wrote to the latter: "Your office is unknown to the law. General Bragg had no more authority for appointing you civil governor of Atlanta than I had; and I had, or have, no more authority than any street-walker in your State. Under his appointment, therefore, you can rightfully exercise no more power than if the appointment had been made

Es Rhodes, History of the United States, vol. iii, p. 601.

89 Acts of First Confederate Congress, p. 1; Rhodes, ibid., p. 601.

Ibid., pp. 601–603.

91 See McPherson, History of the Rebellion, pp. 121, 187, 188, 618, 619. The Supreme Court of North Carolina were divided upon the subject, with a majority in favor of the constitutionality of the suspension (McPherson, History of the Rebellion, p. 120). Garfield said, in his argument in Milligan's Case (4 Wall. 2, 57): "When civilians arrested by military author

ity petitioned for release by the writ of habeas corpus, in every case, save one, the writ was granted, and it was decided that there could be no suspension of the writ or declaration of martial law by the executive or by any other than the supreme legislative authority."

92 Stephens, Constitutional View of the War between the States, vol. ii, p. 570. The State legislature of Georgia, in March, 1864, when the Confederacy was in desperate straits, passed resolutions protesting against the suspension of the writ of habeas

94

by a street-walker." 93 The doctrine of State rights further injured the Confederacy, by attempts in the State legislatures to institute separate negotiations for peace 4 and secessions from the Confederacy.95 In but one case did it prove beneficial. Davis and Lee, than whom no one was more competent to pass judg ment upon such a subject, were strongly of the opinion that negroes should be employed in the Southern army. The opposition in the Confederate senate was so strong that Davis finally said, in his exasperation, "If the Confederacy dies, there should be written on its tombstone, Died of a theory.'" At the close of the war, when it was too late to prove of much value or mischief, the measure was finally carried through their Congress by the votes of the senators of Virginia, who believed the measure dangerous as well as inexpedient, but yielded to the instructions of their State Legislature.96

The last act under the Confederate Constitution was at Charlotte, North Carolina, on April 24th, 1865, the approval by President Davis of the terms of the agreement between Generals Johnston and Sherman that the Confederate army should disband, peace be restored, amnesty granted, and the Confederate States return to the United States with their former political rights and the rights of person and property of their inhabitants unimpaired. He obtained a written opinion from each member of his cabinet

corpus and the proceedings under the same, declaring, "That in the judgment of this general assembly, the said act is a dangerous assault upon the constitutional power of the courts, and upon the liberty of the people, and beyond the power of any possible necessity to justify it" (ibid., vol. ii, pp. 788, 789). Similar resolutions were passed by the legislature of Mississippi (McPherson, History of the Rebellion, p. 399). More than onethird of the lower house of the Confederate Congress supported a resolution protesting against the suspension of the writ of habeas corpus; and a new bill extending its power of suspension was at first defeated in the

senate (ibid., pp. 618, 619). See also Stephens' testimony before the Joint Committee on Reconstruction (Report of that Committee, Part III., p. 165).

93 Stephens, Constitutional View of the War between the States, vol. ii, p. 786.

94 See the letter of Jefferson Davis to the State senators of Georgia, on State negotiations for peace (McPherson, History of the Rebellion, pp. 616, 617). See also ibid., p. 456, 614622.

95 Cox, Three Decades of Federal Legislation, p. 313.

96 Davis, Rise and Fall of the Confederate Government, vol. i, pp. 515519.

They

recommending his action before he signed the paper. further recommended that he should afterwards request the States to ratify his action, which was considered to be beyond his constitutional powers, and only justified by the emergency.97 The government of the United States relieved them from further embarrassment by a refusal to approve the agreement, a destruction of the Confederate government and the capture of its President.98

§ 38. Reconstruction.

The restoration of peace and order after the close of the Civil War, and the readmission of the conquered people to their former relations with the Federal government, presented the most difficult political and constitutional problem which the United States has had to solve. It was accomplished only by what was, in fact as well as name, a complete reconstruction of the Union. The result had established the illegality of secession, and the proceedings by the successful army had been justified upon the position that the war was made, not upon the seceding States, which could not be, and had not been, in law or fact separated from the Union, but upon such of the people in them as had combined to oppose the laws of the United States. When the

97 The opinions of the Confederate cabinet were reprinted in the New York Sun, Feb. 14, 1886. No student should fail to examine the files of that periodical, which contain more valuable historical material and more accurate information concerning constitutional questions than any other newspaper in the world.

98 Infra, § 38. The decisions of the courts upon the validity of the acts of the Confederate Government are discussed subsequently under the War Power.

For an interesting account of the secession of Sparta from the Achaian League because of the demand for some Lacedemonian filibusters who had attacked another Federal city; -"decreverunt renunciandam societatem Achaeis" ; and the consequent

war against it by the League, B. C. 189188, which resulted in the surrender of the malefactors, of whom seventeen were immediately massacred, and the rest, sixty-three in number, executed the following day, after a trial before the military assembly of the League: see Livy, xxxviii, pp. 31-33: Freeman, History of Federal Government, pp. 641-643. Sparta later resumed her former relations with the confederacy without any re 'onstruction (ibid).

§ 38. 1 In Lincoln's Proclamation of April 15, 1861, calling for troops (supra, § 36, over note 55, and infra): "Whereas the laws of the United States have been for some time past, and now are opposed, and the execu tion thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and

battles were over, the South and their friends in the North rejoined that, now it had been established that they had not gone out, these States must be still within the Union, and as such they were entitled to immediate representation in both houses of Congress, and complete local self-government, including full authority to regulate the right of suffrage, to determine the status and civil rights of the blacks within their boundaries, and even to pay the debts incurred for the prosecution of war against the national government.2 The victors felt their moral obligation not only to protect from the vengeance of a majority, embittered by defeat, their white allies in the South, who had risked their property and lives in support of the Union through the war, but

also to care for the blacks to whom they had given freedom, and who, untrained to self-support, and without civil rights recognized by law, must, if abandoned, sink, if not into actual slavery, into practical serfdom to their former masters. The situation was further complicated by the clause in the Constitution which would, if unamended, give to the Southern whites representation in the House of Representatives based upon the whole number of free inhabitants, although by the State laws then upon their statute-books, the blacks, who were, in Mississippi, Louisiana and South Carolina, more than half the population, could not vote, so that, if the result of the war left that unchanged, the conquered section would have gained a stronger voice in the national councils than before. The disorder inevitable from the passions and habits engendered during five years of internecine strife, during which the courts had been so often closed, and the greater portion of the property of the whites had been destroyed, was moreover heightened by the presence of the mass of freedmen, untrained in that self-restraint without which liberty is intolerable, not accustomed to voluntary labor or respect for contracts and the rights of property; and to preserve order appeals were continually made for interference by the Union army. In

"A large proportion of the population had become, instead of mere chattels, free men and citizens. Through all the past struggle these had remained true and loyal, and had, in large numbers, fought on the side of the Union. It was impossible to abandon them without securing them their rights as free men and citizens. The whole civilized world would have cried out against such base ingratitude, and the bare idea is offensive to all right-thinking men. Hence it became important to inquire what could be done to secure their rights, civil and political. It was evident to your Committee that adequate security could only be found in appropriate constitutional provisions. By an original provision of the Constitution, representation is based on the whole

number of free persons in each State, and three-fifths of all other persons. When all become free, representation for all necessarily follows. As a consequence, the inevitable effect of the Rebellion would be to increase the political power of the insurrectionary States whenever they should be allowed to resume their position as States in the Union." Report of the Joint Committee on Reconstruction. (McPherson, History of Reconstruction, p. 88. See also the speech of Thaddeus Stevens, in the House, Dec. 18, 1865, quoted by Blaine, Twenty Years in Congress, vol. ii, pp. 128-130.)

4 The condition of affairs is described in the testimony before the Joint Committee on Reconstruction.