"I, —— ——, do solemnly swear, or affirm, in presence of Almighty God, that I will henceforth faithfully support and defend the Constitution of the United States and the Union thereunder, and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves, so help me God."
The permission to take this oath was withheld from large classes of citizens. It will be seen that there are two stipulations in this oath, the first faithfully to support the Constitution of the United States and the Union thereunder. This comprises obedience to the laws made in conformity to the Constitution, and is all that is requisite in the simple oath of allegiance of an American citizen. The second stipulation is:
"To abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves."
What need was thereof this second stipulation? Because the laws were not enacted, nor the proclamation issued under any grant of power in the Constitution or under its authority. Now, the exercise of a power by Government, for which it has no constitutional authority, is not only a usurpation, but it destroys the sanction of all written instruments of government. Also, what has become of the unalienable right of property, which all the State governments were created to protect and preserve? Where was the sovereignty of the people under these proceedings? Yet the Confederate citizen was required to bind himself by an oath to abide by and faithfully support all these usurpations; the alternative being to resist the Government, or to aid and abet a violation of the Constitution.
Meanwhile, each of the late Confederate States was occupied by a military force of the Government of the United States, and military orders were the supreme law; and that Government thereby proceeded to establish a State organization based on the principle of its own sovereignty. In the first place, the President of the United States issued a proclamation in such terms as to be applicable to each of the Confederate States wherever its affairs were in such process of subjugation as to permit the commencement of the proposed organization. This proclamation begins by setting forth four propositions as the basis of his authority: First, the Constitution declares that the United States shall guarantee to every State in the Union a republican form of government, and protect each against invasion and domestic violence. Second, the President is Commander-in-Chief of the Army and Navy, as well as chief civil executive officer, and bound to take care that the laws be faithfully executed. Third, the rebellion, in its revolutionary progress, deprived the people of all civil government. Fourth, it becomes necessary and proper to enforce and carry out the obligations of the United States to the people of the State in securing it in the enjoyment of a republican form of government. Therefore, etc.
These propositions call for a notice as well because of their fallacy as their enormity. The third declares that the so-called rebellion, in its progress, deprived the people of each Confederate State of all civil government. There was a government over each Confederate State, then existing and in full operation. It was, in all its internal relations, the same government which existed when the State was a member of the Union, whereby it was recognized by the Government of the United States and by the other States as a lawful and republican State government. It had been created by the free consent of the people of the State, and they had defended it with their lives and their fortunes. It had been denied by the Government of the United States that any one of the Confederate States was a foreign state or outside the Union by its secession. There was, therefore, neither in law nor in fact, any foundation for the assertion that the so-called rebellion had deprived the people of each Confederate State of all civil government.
Having thus stripped each Confederate State of all civil government, it was asserted that the Constitution declares that the United States shall guarantee to each State a republican form of government. But to guarantee is not to create, to organize, or to bring into existence. This can be done for a State government only by the free and unconstrained action of the whole people of a State. The creation of such a government is beyond the powers of the Government of the United States, as has already been shown. After a republican government has been instituted by the people, the Constitution requires the United States to guarantee its existence, and thereby forbids them or their Government to overthrow it and set up a creature of its own. The duty to guarantee commands the preservation of that which already exists. Such were the governments of the Confederate States before the war and after the war. Thus the power granted in the Constitution to preserve and guarantee State governments was perverted to overthrow and destroy republican governments, and to erect in their places military Governors, Legislatures, and judicial tribunals.
The third proposition is that the President is Commander in-Chief of the Army and Navy and the chief civil executive. His troops already occupied each of these States, and held the people in subjection. His proclamation was therefore merely a military order from the hand of the conqueror. Everything which he can do under such a character partakes of the nature, simply and solely, of martial law. Therefore he proceeds under the fourth proposition, wherein it "becomes necessary and proper to carry out the obligations of the United States to the people" of each Confederate State, "in securing them in the enjoyment of a republican form of government." The American people were now about to witness, on an extensive scale, the tyrannical experiment of instituting republican governments by the processes of martial law. They had declared it to be a self-evident truth that it was "the right of the people to alter or to abolish it [their government], and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." [130] This principle of the sovereignty of the people was now rejected, and the sovereignty of fleets and armies was substituted.
"Now, therefore," says the Commander-in-Chief of the Army and Navy, and the chief civil executive officer of the United States, "in obedience to the high and solemn duties imposed upon me by the Constitution of the United States, and for the purpose of enabling the loyal people of said State (or States) to organize a State government, whereby justice may be established, domestic tranquillity restored, and loyal citizens protected in all their rights of life, liberty, and property, I do hereby appoint —— —— provisional Governor of the State" It will be here noticed that all the proceedings are undertaken for the sake of the "loyal" persons in the State. Who is to decide what persons are "loyal"? He who issues the military order—the President and his agent the provisional Governor; and they naturally will decide those to be loyal who support and obey their orders. The free assent and dissent which are the basis of the validity of every political action under our system, are unknown in this case.
The duty of the provisional Governor is declared in the proclamation to be, "to prescribe such rules and regulations as may be necessary and proper for convening a convention composed of delegates to be chosen by that portion of the people of the State who are 'loyal' to the United States, and no others, for the purpose of altering and amending the Constitution thereof." In the third of the four propositions laid down as the basis of authority for the President's proceedings, above mentioned, it is declared that the so-called rebellion, "deprived the people of the State of all civil government"; but here it is made the first duty of the provisional Governor to procure a convention of "loyal" persons "to alter and amend the Constitution" of the State. Thus it seems that there was a State in existence, and a Constitution in full vigor, notwithstanding the above declaration of the President to the contrary. This was that Constitution of the State which was in force during that long and peaceful period through which the Constitution of the United States was observed, and constitutional laws enacted. Now it was to be altered and amended from what the sovereign people of those days had ordained it to be, at the command, and to conform to the views, of another sovereign. The nature of those alterations and amendments will be stated hereafter.