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AMERICAN HISTORICAL ASSOCIATION 
 
 MILITARY (iOVERNMENT (IF SOI'THEHN TEKRITOIiV. IMil-lsr),) 
 
 A. II. (AKPENTEK. A. M. 
 
 HAKVAIM) rM\ KHSITV 
 
 (Kiiiiii tilt' Aiiimul Itcimri ul ilic Aiiieri<aii ]Iistnri(;il Ass<iii:il ion for limo. 
 Vol. I. p.i'ies 465-4nS.) 
 
 WASHINGTON: 
 
 GOVERNMENT PRINTING OFFICE. 
 
 ;i 9 1. 
 
h 
 
 
XII.— MILITARY DOVERNMENT OF SOUTHERN TERRITORY, l.S()l-186o. 
 
 By A. H. CARPENTER, A. M., 
 HARVARD UNIVERSITY. 
 
 H. Doc 5-1-S. pt 1 30 4fi5 
 
:^A 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY, 1861-1865. 
 
 Bv A. H. ('AiU'KNTKK, A. M., Ilarvanl rnivcrsitv. 
 
 When the civil war broke out, the Governnieiit of the United 
 "States found itself confronted with man}- and per])lexint;' 
 questions. Treason had penetrated into every hi'anch of the 
 Administration, and from (lovernment resources made prepa- 
 ration for the coming- rebellion. A laro(> number of the States 
 were already in arms, preparing to light for what they con- 
 sidered their rights. Still others wt'i-e wavering in their alle- 
 giance, for they were slaveholding communities, and thus 
 bound in sympath}^ with the great Southern institution. Ad- 
 joining these States were others which, though not holding 
 negro slavery, were closely connected, at least in certain sec- 
 tions, with the South b}- ties of relationship and commerce'^ 
 Besides all this, the seat of the Government was in the midst 
 of slave territory, and thus cut oil' from the sources from 
 which it must draAV its defense. The Governnicnt had not 
 oidy to raise troops to suppress the coming storm, but it nuist 
 also make sure of its coDimunications with the Noi-th; elements 
 of treason in the border States must be held in check and sup- 
 pressed in order that its power might act as a unit, and finally 
 the slave States which had not as yot joined in the n^lxdlion 
 must be kept to the side of the rnion. 
 
 As a means to the acconjplisJnnent of these (mkIs, military 
 government was put in force and exercised to a limited degree 
 throughout the North,' while the border States came under 
 its complete control. The latter may. for our purposes, be 
 considered Southern territory. Here, then, was instituted 
 the first military government of the civil war, an institution 
 which spread and developed as the territory of the Southern 
 States was reclaimed from rebellion. 
 
 ' ni the North military government took the form of .suspension of hjilietis curpii.^ luul 
 arhitrsiry arrest. See Official Recordsof the Rebellion, Series 11, vols. 1 unci •_'. i Published 
 by the United States Government.) Ilereulter referred to "is o. K. K. 
 
 4b7 
 
468 AMERICAN HISTORICAL ASSOCIATION. 
 
 Before tracing the outlines of tliis oovernraent and examin- 
 ing the functions that it exercised, it is necessary that we get 
 some idea of what military govermnent is. 
 
 I. 
 
 Both definition and explanation become necessary, for the 
 reason that this institution is commonly regarded as some- 
 thing unreasonable, tj-rannical. and without just foundation. 
 Military government may l)e roughly destined as that which is 
 exercised by military officers, or In^ men with military powers, 
 over hostile territory. It has been asserted that such govern- 
 ment could only be put in force over foreign territory, but 
 this limitation is ol)viously absurd, and "hostile'" applies to a 
 country in rebellion as well as to that which is foreign. Civil 
 war confers the same rights as a foreign conflict, so at least it 
 was held by the Supreme Court in the "prize cases.''' This 
 is further brought out in the decision rendered in the case of 
 Tyler t». Defrees, which sa^^s: "We do not believe that the 
 Congress of the United States, to which is conlided all the 
 great powers essential to a perpetual union, the power to make 
 war, to suppress insurrection, to levy taxes, to make rules 
 concerning captures on land and sea. is deprived of these 
 powers when the necessity for their exercise is called out by 
 domestic insurrection and internal civil war; when States, for- 
 getting their constitutional obligations, make war against the 
 nation and confederate together for its destruction.""^ There 
 is also a kind of military government which is not enforced 
 over hostih^ territory at all, such as that which holds sway 
 upon military reservations and posts and within the Army 
 itself; l)ut for our purpose this may be largely disregarded. 
 
 Further (examination shows that it has a constitutional and 
 legal basis, and that it draws its life from the Constitution, mili- 
 tary and martial law. and the acts of Congress. In the lirst 
 certain war powers are given to the President and to Congress, 
 and ])y implication, as a means of carrying these out, military 
 government is thereby sanctioned. The President is made the 
 Chief Executive, the Conmiander in Chief of the Army, and 
 has the dutv of defending the Constitution. In order that the 
 
 '■J KliK'k. f:M\. 
 ^J WliitiiiK, '^ti-. 
 
MILTTARY (iOVERNMENT OF SOTTTHKKN 'I'KHIU Tc >K V. 4(V.l 
 
 last should he upheld, ho may he foi-ced to make use of this 
 institution. Ao-aiii, tlie Constitution ])i-o\i{les for the suspen- 
 sion of the writ of lm])eas e()i-])us. which in itself estal>lisl)es 
 a form of military o-overnment. As a means of i)i'o\ idiup- U>v 
 the common defense and uciieral Avelfare. of ouai'anteeino- ii 
 repul)lieari form of o-overnment, and seeing- that tlie citizens of 
 one State luive tlieir rights in anothei-. military uoviM-mncnt 
 may l)ecome necessary and often th(>only means of accomplisii- 
 ing- these ends. TIk^ })owei\sof the President as militai-\- com- 
 mander are little, if at all. pi-escrihed hy tiie Constitution, and 
 their scope and intention are not given in i)reeise terms. He 
 only makes use of these powers when the land and naval forces 
 ai-e called into the Held, hut on the other hand the laws of Avar, 
 which alone could check his power, plainly esta])lish his right 
 to erect such governments and maintain them hy force of 
 arms.' Their constitutionalit}" have been upheld hy the 
 •Supreme Court in the case of Cross v. Harrison.- 
 
 Besides the Constitution we have military and martial law, 
 the latter being the broader term and corresponding to the com- 
 mon law in that it is a collection of unwritten customs and 
 principles, ''regulating the rights. lial>ilities, and duties, and 
 the social, municipal, and international relations in time of 
 war of all persons, whether neutral or iK'Uigerent.'"'' Birk- 
 himcrsays that "Martial law is that rule which is established 
 when civil authority in the counnunity is made subordinate to 
 military, either in repelling invasion or when the ordinaiy 
 administration of the laws fail to secure the proper o])jects of 
 govermneiit."* Thus it is based upon the necessities of war, 
 is associated with the suspension of habeas corpus, and' applies 
 not only to belligerents, but also to neutrals. Hence the ordi- 
 nary constitutional rights are subordinated to this law, and 
 the result may be the suspension of tho freedom of the press 
 and of speech, the trial of men without jui-y. and the taking 
 of property without due process of law. ' 
 
 Alongwith this should be placed military law, which includes 
 the Artich^s of War, enactments relating to discipline, aiiny 
 regulations, general and special ordersof military commaudcis. 
 
 1 William Whiting, Military GoTernment of Hostile Territory, pp. 19-20 (Boston, 1864). 
 ^This case grew nut of military government of California. Si'c ItJ How., 1G4. 
 ■'William Wliitiiig. War Power,* under the Conslitntion, p. ItMi (Boston, 1871). 
 ^W. Birkhinur. Military Government and Martial Law, p. 291 (Washington, 1892). 
 ^William Whiting. W.ir Powers, cte., ]ip. .')9-G0. 
 
470 AMERICAN HTSTORIOAL ASSOCIATION. 
 
 Tho first iirc for th(' enforcement of dis('ii)liiH> iuid the crini- 
 iiuil administration of tiio Army, which inchules civilian fol- 
 lowers. Amonjj- other enactments are those reg-ulatin^- oenci:! I 
 courts-martial and the jurisdiction of the same. Then. too. 
 Coiii^ress has passed certain statutes providing- for the use of 
 the Ai-ni}' in times of insurrection, has established military 
 reservations, and in two well-known instances put in force 
 military i^'ovcrnment pui"e and simple, i. e,. in California and 
 New Mexico. 
 
 The o-overnment thus established expects and enforces obe- 
 dicnci^ to itself. The alleg'iance of the inhabitants is ow'ed to 
 it, and all former relationshij)s are done awa}- with or sus- 
 pended, and the conquerors will becomes supreme over the 
 occupied territorv. All its laws and reiiulations ma}' be 
 swept awa} ,, but as a g-eneral rule the municipal law is re- 
 tained, so far as it does not hinder the objects of the war. This 
 practice is upheld l)y international law and by the United States 
 Army Reg'ulations, parag'raph (5 — ''All civil and penal law 
 shall continue to take their usual course in the enemy's places 
 and territories unless intprrupted or stoppi^d l)y order of the 
 occupying militar}' power.'' ^ The same is further shown in a 
 decision of the Supreme Court in the case of Ketchum ?'. Buck- 
 ley: "'It is settled ])v law that the same general form of 
 government and same general law for the administration of 
 justice and the protection of private rights which has existed 
 in the States previously in rebellion remained during its con- 
 tinuance and afterwards."- Thus we find that the military 
 courts in the South were governed by the rules of evidence 
 and the laws of the State in which they acted. ^ Consequently 
 military goveriunent loses much of its arbitrary character, 
 which at first sight appears so prominent. This idea is in- 
 creased when it is remembered that the ofKcers in command 
 were subject to highei- commanders and to the President, 
 which meant that each was responsible to a higher power. 
 
 Having thus obtained a brief idea of what military govei'ii- 
 mcnt is. we must next pass to a survey of the exttMit and work- 
 ing of the same. As already pointed out, this institution was 
 first established in the border States — Marjdand, Kentucky, 
 
 ' Birkhimer, Military Government and Martial Law, p. 93. 
 
 29-) r. S. Reports, p. 390. 
 
 » Birkhimer, Military Government and Martial Law, ji. 390. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 471 
 
 and ]Mi8.souri — which still supported the Constitution and 
 were .still members of the Union. Nevertheless they were 
 put under a form of military government which differed but 
 little from that which was established in the South as parts 
 of its territory were reconcjuered. The southern parts of 
 Ohio, Indiana, and Illinois were also touched by it in the form 
 of military commissions winch snpcrscd(>d to a certain extent 
 the civil courts.^ 
 
 II. 
 
 The first step toward the estal)lisnment of such government 
 was the declaration of martial law and the sus})ension of the 
 writ of habeas corpus.'' April 21), 1861, the President sus- 
 pended the writ between Washington and Philadelphia, thus 
 bringing- Maryland under military rule. This action was 
 taken apparentl}^ for the purpose of protecting the conunmii- 
 cations with the North, and it is interesting to note that the 
 Federal Government for the first time in its history so acted. 
 A conflict with the courts at once arose in the case of Merry- 
 man, of Maryland, who had lieen arrested bv military author- 
 ity. A writ was issued bv Supreme Court Justice Taney, 
 calling upon General Cadwallader to deliver the prisoner to 
 the court. This was refused, and the question came before 
 the President, who asked the opinion of the Attorney-General. 
 The latter upheld the power of the Chief Executive to declare 
 martial law and suspend the writ. A similar case arose in St. 
 Louis, Mo., where Emmett ^IcDonald was arrested during 
 Ma}^ and held in spite of habeas corpus. 
 
 December 2, 1861, Lincoln authorized General Halleck to 
 declare martial law in Missouri,' which may have been done 
 to prevent strife with the courts, and also because necessitj^ 
 demanded it. On September 24 of the following year the 
 President suspended habeas corpus in the District of Colum- 
 bia and other parts of the country for men who were rebels, 
 insurgents, aiders or abettors of the same in the United 
 States, those discouraging enlistments, resisting the draft, 
 
 iThe trial by military courts of citizens in States where civil courts were still open 
 was condemned and overthrown in case of Ex parte Milligan. See 4 Wall., 2. 
 
 - Lincoln defended suspension of habeas corpus in various letters. See Lincoln's Works, 
 V. 2, pp. 345, 360 (N. ¥., 1894). 
 
 3 Ibid., V, 2, p. 541. 
 
472 AMERICAN HISTORICAL ASSOCIATION. 
 
 guilty of disloyal ])riicti('Ps (a voiy general term), giving aid 
 or comfort to tht^ eiioniy—all these were subject to martial 
 law and lia])le to trial by eourt-martial or military commis- 
 sion/ September 15, 1863, another proclamation was issued 
 which applied to the whole country, including not only the 
 border and Southei'n States, Init the North as well. As late 
 as fluly 5, 18(54, a special proclamation was put Jforth relating 
 to the suspension in Kentucky. All such legislation was 
 purely a national ati'air, but it is ])}' no means the whole of 
 what was done in this line, for the commanders issued supple- 
 mentary proclamations, sometimes to carry out the national 
 ones and sometimes for the special conditions of their own 
 departments. 
 
 Alongside of martial law, and in part growing out of it, 
 there developed an extensive system of arrests, which was 
 used freely in the border States throughout the war. The 
 extent to which they suHered in this may be judged from the 
 fact that out of 175 persons arrested and confined in Fort 
 Lafayette between July and October of 1861, 40 were from 
 Maryland and 16 from Kentucky, Mncluding judges, memliers 
 of legislatures, and editors of newspapers. In the beginning 
 the power of arrest was exercised by the State Department 
 alone, and then concurrently with the War Department, and 
 finally by the latter exclusively. 
 
 At first men were arrested with no other authority than an 
 order from Washington, but as the war went on a special ma- 
 chinery was developed which penetrated into all parts. Thus, 
 by an order of August 8, 1862, Stanton said that United States 
 marshals, superintendents, and chiefs of police of any town, 
 cit}", or district Avere to arrest any person who discourages 
 enlistments or indulges in anj^ other disloyal practice. Imme- 
 diate report of all such ai'rests were to be made to the Judge- 
 Advocate-General, in order that those arrested might be tried 
 by military commission.^ Another step was taken to supple- 
 ment this when the President, on September 26. authorized 
 the appointment of a Frovost-^NIarshal-General, with office at 
 Washington, and one or more provost-marshals in each State, 
 who received instructions from and reported to the Provost- 
 
 1 T.inooln's Works, v, 2, p. 239. 
 
 - Aimnal Encycloijcriiii, lS(il, p. litU. 
 
 ■Mngcrsoll, Exet'Ufive Arrests, p. v (I'liil., lH(i2). 
 
MILITARY G()VEKNMP:NT uf southkkn tkrkitokv. 47'^ 
 
 Marshal-(Toneral. These moii Avero to ari'(»st all disloyal i)('i- 
 sons upon a warrant of the Judg'e-A(lvocate-(T(Mieial, and \ver( 
 to inquire into and report treasonable practices. They were 
 (^iven the power to employ citizens, constables. shei-iH's. police 
 officers, and, if necessary, could call upon the iiean^st niilitaiv 
 force to help them in their operations.^ The prisons finally 
 l»ecanie so filled with political prisoners that Lincoln appointed 
 a special conuuission, consisting' of (ienei'al Dix and lion. 
 Edwards Pierrepont, of New York, to investigate these eases, 
 and, where necessary, release the prisoners.' This is another 
 curious bit of machinery, half military and half civil in char- 
 acter. 
 
 With this summary of martial law, the foundation of mili- 
 tary government, and of arbitrary arrest, its first work, we 
 pass to the further devc^lopment of the system. 
 
 III. 
 
 Immediateh^ after the attack upon the Fedei-al ti-oops in 
 their march through Baltimore, Butler was appointed to tli(> 
 command of the city and its neighborhood. Here it s1k)u1(1 
 be noted that, outside of the politicians and a few of the 
 southern counties, the ;State was strongly for the riiion.'* As 
 this territory was under martial huv by the proclamation of 
 April 29, the commanders had full power to act as the}^ 
 thought best, and General Banks, upon taking command, ap- 
 pointed a provost-marshal for the State, and made all police 
 ofhcers subordinate to him. The result was that the police 
 commissioners of Baltimore ordered the disbandment of the 
 force. As the functions of this board had already been sus- 
 pended by military order, they were arrested and a new force 
 of 400 men established.* This was followed on September 12 
 by an order for the arrest of meml)ers of the legislature who 
 were suspected of sympathy with the South, (reneral Dix 
 says that three-fourths of this body were known to be for 
 secession, and to previMit l)lo()dshed the general ordered their 
 arrest. In fact, upon taking connnand. inuncdiately after Bull 
 
 1 B. R. Curtis and G. P. Lowrey, Executive Power, p. vii (N. V., 1863). 
 - Lincoln's Works, v. 2, p. 127. 
 
 ^Lalor, Encyclopedia of Political Scienc.^, Political Kconoiny. luid I iiilcd States His- 
 tory, V. 2, p. 814 (Chicago, 1884). 
 ■• Annual Encyclopedia, 1861, p. 58-59. 
 
474 AMERICAN HISTORICAL ASSOCIATION. 
 
 Run, tho same commandor found that open sympathy was 
 being expres,sed in Baltimore for the South, and the rebel flag- 
 was being carried upon the streets.* 
 
 The question of arresting the legislature had come up the 
 preceding spring, and we find Lincoln writing to Scott as 
 follows: 
 
 I therefore conclude that it is only left to the conimandin<j: general to 
 watch and wait their action, which, if it shall be to arm their people 
 against the United States, he is to adopt the most prompt and efficient 
 means to counteract, even, if necessary, to the bombardment of their 
 cities, and, in the extremest necessity, the suspension of the writ of habeas 
 corpus.^ 
 
 This order is interesting, for it was issued before the regu- 
 lar proclamation and foreshadowed the coming policy of dele- 
 gating such authority to others, and especially in leaving it to 
 the military commanders as a matter of discretion. 
 
 In 1863 the whole State was put under martial law. certain 
 clubs were closed l)ecause they were known to have Southern 
 members, and a careful search was made for arms. An iina- 
 sion of the Commonwealth furnished a reason for this action. 
 November 9, 1864, the former slaves were put under militaiy 
 jurisdiction and a Freedman's Bureau established, because 
 the ancient slave code was being used to keep the negroes in 
 bondage. Here it should be noted that this was entirely 
 beyond the jurisdiction of the militar}^ commanders, for the 
 emancipation proclamation did not apply to Maryland, and 
 hence it was a matter for State control and action. A clause 
 of the .State constitution, adopted in October, had provided 
 for abolition, and hence it was the State authorities who 
 should have acted. This was not the first case of army inter- 
 ference with the negro question in Maryland, for in 1862 a 
 William H. Offutt, who had recovered a slave by legal proc- 
 ess, was arrested on the ground that the negro was under 
 military protection. We also find a system of tines and taxes 
 levied upon rebel sympathizers of Maryland for the support 
 of the poor and needy. ^ and those confiscations were remem- 
 bered with great bitterness.* The courts do not seem to have 
 been interfered with and internal administration was left 
 .done, except in the cases mentioned. 
 
 1 John A. Dix, Memoirs, v. 2, p. 26, 32; edited l)y >rorgau Dix ( N. V.. 1S,S:5). 
 
 - Uncoln's Works, v. 2, p. 38. 
 
 ''For example of such an order, O. K. K., s. 1, I't. II, v. 13, p. 587. 
 
 ■i Lalor, Encyclopedia, v. 2, p. 815. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 475 
 
 Turning- from Maryland to Missouri, wo find greater super- 
 vision exercised hy the commanders. On the last da}' of July, 
 1861, General Pope gave orders that every county seat and 
 town of any size in northern Missouri should be visited 
 by a military forct', and in each a committee of public safety 
 was to be appointed. These persons were to be selected from 
 all parties, and nuist have social, domestic, and pecuniary 
 interests at stake. These committees w(M"(» to be limited to 
 five persons, and no one appointed could decline or fail to 
 perform his duties, und(^r such penalties as the general might 
 fix. The bodies thus established were to maintain peace and 
 order in their respective conununities, and to them was given 
 the power to call out the citizens to aid in these objects. All 
 people who refused such a call were turned o\er to the mili- 
 tary authorities, and if any county should not be able or will- 
 ing- to enforce the peace the military forces were to perform 
 the service at the expense of the count}-.' 
 
 August 31, 1861, General Fremont declared maitial law in 
 the following terms: 
 
 Circnmytances, in n\y judjj^nu'nt, of suHiciciit urui-ncv render it necessary 
 that the commandino; general of thin department should assume the admin- 
 istrative powers of the State. * * * The ol)jeet of this declaration is 
 to place in the hands of the military authorities the power to fjive instant 
 effect to the existing laws and t<> supply such deficiencies as the condition 
 of the "war demands.'' 
 
 This was issued appartMitly without any direct authority 
 from the President, and is a good illustration of such legis- 
 lation. Itjplearly shows tlie reason why martial law is estab- 
 lished, and further says that the ordinary tribunals .are to 
 continue and the law is to be administered by civil otticers so 
 far as they can peaceably exercise their functions, l)ut in all 
 cases it is the military comuumder who becomes the final judge. 
 Fremont went further and declared the slaves free, but this 
 Lincoln revoked. On fbinuary 9, 1862, the provost-marshal 
 ordered all newspapers in Missouri, St. Louis excepted, to 
 furnish him a daily copy for inspection, upon pain of having 
 their papers suppressed.'' Thus was the most strict censor- 
 ship of the press undertaken. PeopI(> were forbidden to move 
 out of the country without a permit, ministers of the gospel 
 
 1 O. R. R., s. II, V. 1, p. 195. 
 -Animal Encyclopedia, l.SGl, p. 491. 
 3 Ibid., 1SH2, p. .VJO. 
 
47fi AMERIOAlSr HISTORICAL ASSOCIATION. 
 
 were interfered with, and property" of all sorts was confiscated. 
 Elections were carefully regulated, labor legislation was insti- 
 tuted, and the loyalty of boards of trade, railroad directors, 
 and members of library boards was called in (luestion, all of 
 which will be treated more fully at another time. 
 
 In Kentucky much the same things were undertaken, espe- 
 ciallj^ as regards elections and the looking after the loyalty of 
 the people. Arrests were carried to great lengths here in 
 1864, when both civil and judicial officers, including the lieu- 
 tenant-governor, the chief justice, together with the delegates 
 to the Chicago convention, were placed in confinement.^ In 
 the other States which adjoined these, militar}' rule rested 
 more lightly, and was concerned chiefiy with (|uestions of 
 lo3'alty. 
 
 Thus, at Cincinnati, Ohio. April 18, 1863, General Burnside 
 issued the following order: 
 
 The commanding general publishes for the information of all roncerned 
 that hereafter all persons found within our lines who commit acts for the 
 benefit of the enemies oi our country will be treated as spies or traitors, 
 and, if convicted, will suffer death. 
 
 This order was made to include carriers of secret mails, 
 writers of letters thus carried, recruiting officers, men who 
 have entered into an agreement to join the enemy, persons 
 within the lines who could give private information to the 
 enemy, and all people who in any wa\' aided the enemies of 
 our country. 
 
 The habit of declaring sympathy for the enemy will not be allowed 
 in this department. * * * It is distinctly understood that treason, 
 expressed or implied, will not be tcjlerated in this dei)artment.^ 
 
 This was followed by another order which said that the 
 publication and circidation of books containing sentiments 
 of a disloj'^al tendenc}' came clearly within the reach of the 
 above order.^ In these commands treason is defined with 
 great care, and the iiuier thoughts of men were brought 
 imder the supervision of the military commander, who 
 became the sole judge of the woi-ds, thoughts, and actions of 
 the people. 
 
 > Anminl Encyclopedia, 1864, p. 423. 
 20. R. R., s. I, pt. ■>. V. 23, p. 237. 
 »Ibid., p. 382. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 477 
 
 In May of this same year Vallandi<>hain, a ineinbcr of Con- 
 gress, was arrested at Mount Vernon, Ohio, for a political 
 speech which had criticised the course of the Administration. 
 He was tal^en from his home by nioht, hurried to the mili- 
 tary headquarters, and tried and condenmed by a military 
 commission. The sentence of the court was modified by the 
 President to banishment from the Union, and the meml)er of 
 Congress was sent South to l)e with his friends. This trial, 
 it should be remembered, took place in a State in which the 
 courts were still open, and it was undoubtedly the limit to 
 which military government went; but the doctrine thus esta))- 
 lished was later overthrown by the Supreme Court in the 
 Milligan case of 18H6.' 
 
 Passing from the border States to the South, we lind mili- 
 tary government reaching its highest development. Here it 
 became an instrument of war to hold in subjection concjuered 
 territory. Military commanders exercised large governing- 
 powers, each in his own district, without much reference to 
 others, except as the President or higher oificers might insist 
 upon similar measures. This, however, does not mean that 
 their legislation was widely different, for it was not, due to 
 the fact that each had much the same probh^ns to soh^e; 
 hence there resulted a great similarit3^ Much of the govern- 
 ment thus formed was local and municipal, the best examples 
 of which were New Orleans and Memphis. Such was l)()und 
 to be the case, owing to the fact that the amount of territory 
 held Avas constantly varying with the movements of the 
 armies. The legislation of the commanders, however, went 
 far bej'ond municipal regulations. 
 
 Still another form of military government was to l)e seen in 
 the appointment of military governors, a tei'm which up to 
 that time was entirely new to both State and national laws. 
 These men were generally selected from civil life, given a 
 military title and powers, and put at the head t)f a State. 
 Thus, March H, i802, Lincoln conuuissioned Andrew flohnson 
 to be militar}' governor of Tennessee. This t'ollowed soon 
 after the troops hacL gained a foothold there, and at a time 
 when a large part of the State was in the hands of the rebels. 
 John S. Phelps was appointed to a similar office in Arkansas. 
 
 M Wall., ■-'. 
 
478 AMERICAN HISTORICAL ASSOCIATION". 
 
 and May 2 Echvard Stanley was in like manner sent to North 
 Carolina. Instructions were given to these men by the Secre- 
 tary of War, thus showing their military character, and the 
 object of their appointment is well expressed in those given to 
 Stanley: 
 
 The great purpose of your appointment is to re-establish the authority of 
 the Federal (ioverniaent in the State of North Carolina, and to provide 
 the means of maintaining the peace and security to the loyal inhabitants 
 of that State until they shall be able to establish a civil government.' 
 
 Governor Stanley, on reaching his post, made a speech in 
 which he urged the people to return to their allegiance. He 
 ordered to be closed the colored schools which had been 
 opened, as being contrary to the laws of the State, but outside 
 of this little or nothing was done. The same may be said of 
 Arkansas. The failure to accomplish much in these States 
 was due to the constantly shifting character of their territory. 
 In Arkansas a convention was called to revise the constitu- 
 tion, and Januar}^ 12, 1865, regular officers were inaugurated. 
 Ignorant of this, Lincoln ordered General Steele to hold an 
 election, and on learning the condition of affairs he gave that 
 officer discretionar}^ powers to do as he liked. The result was 
 that the commander held another election, and the governor 
 thus elected was put in office. This would seem to show that 
 it was the militarj^ man pure and simple that was the supreme 
 power. 
 
 In 1862 George F. Shepley was appointed militarv governor 
 of Louisiana, with the rank of brigadier-general, which was 
 the title generally given to these men. Here, as in other 
 places, little was accomplished in the way of State government 
 till late in the war. As late as the spring of 186-1: General 
 Banks said that "the cit}^ of New Orleans is in reality the 
 State of Louisiana," and it was only by force of arms that the 
 United States kept control over a circumscribed territory. 
 In spite of this fact, the same commander, on January 1 1 . 1864, 
 ordered an election to be held for governor and other State 
 officers. In his election order he said: 
 
 Those who have exercised or are entitled to the rights of citizens of tiie 
 United States will be required to participate in the mea.sures necessary for 
 the re-establishment of civil government * * * Indifference will be 
 treated as a crime and faction as treason.'' 
 
 ' E. G. Scott, ReconstrucUun duiing llir Civil War, p. 323 (Bostiiii, ].s".i.3). 
 2 Ibid., p. 3.53. 
 
MILITARY GOVERNMENT OF SOUTHERN TKKRITORY. 47*,) 
 
 Here it is clearly evident that no one was to he allowed to 
 staj^at home on election day on -pain of beiny declared a crim- 
 inal, while dilierence of opinion would he treated as treason. 
 
 It was in Tennessee that the institution of militar3'g-overnor 
 was most succ(\ssful. As already pointed out. Johnson was 
 appointed there in 18H2; but it was not till lSt;4 that the State 
 was sufficiently cleared of re))elsto permit of efforts at restora- 
 tion. However, the military governor had put in force many 
 legislative and executive acts, Ordinai'ily it was supposed 
 that he would be governed ])v the laws of the State and only 
 in extraordinary cases make use of his military power. The 
 necessities of the occasion seem to have demanded more of 
 the latter than the former. Johnson put the pidpit and pi'ess 
 under militarv supervision; made ministers, teachers, school 
 officials, and citizens take the oath of allegiance: levied con- 
 tributions upon the rich for the benefit of the poor; laid taxes, 
 raised troops, and issued military proclamations; took posses- 
 sion of the railroads, and built others for military purposes; 
 and finally appointed officers to various positions. Some 
 doubt was raised as to the ability of the militar}" governor to 
 act in political matters, and in order to remove all such 
 obstacles, Lincoln issued a commission, September 19, 1863, 
 giving Johnson the power to exercise all the rights necessarj' 
 for the formation of a government. In September, 1S64, the 
 governor ordered elections to be held where possible, and 
 elsewhere he would appoint the necessary officials. This gov- 
 ernment continued till the State was recognized by Congress 
 and taken back into the Union. Its legality has been upheld 
 both by the supreme court of Tcninessee and by a c(Histitu- 
 tional convention. 
 
 Still another side of military government is seen in the 
 sending of Treasury agents into the South, whose duty it was 
 to secure cotton and othei' products of the soil within the lines 
 of the army, which could be called upon to hcli) tluMU in their 
 operations. Closely connected with them was tlu^ regulation 
 of trade and connnerce with the South, which was the eco- 
 nomic side of the militarv government and was exerclsini 
 from Washington, thus superseding tiie conmiandcrs. The 
 latter, however, legislated along the same lines upon cases not 
 touched ))V the general circulars, or in order to cari'y out the 
 general jnstructjons in reference to })ai1icular conditions. 
 
480 ATMERIOAN HISTOKICAL ASSOCIATION. 
 
 Alongfsid-o of this system should be noted another, viz, the 
 case of the freednien. 
 
 These people during the earlier part of tlu^ war flocked 
 into the camps, expecting the soldiers to take care of them. 
 The able-bodied were followed by crowds of children and 
 aged persons, who looked to the army for food and protection. 
 As contraband of wai' the}'^ were employed in army operations 
 during the first years of the struggle, and then the attempt 
 was made to employ them upon abandoned or confiscated plan- 
 tations, but the efforts failed through the rapacit}^ of the 
 agents in charge.^ In South Carolina they were permitted 
 to settle upon lands about to be sold for taxes, not more than 
 20 acres being given to each head of a family.^ The next 
 step was to form them into large camps, where they were sup- 
 plied with rations and forced to work. The number of slaves 
 thus brought under the Government control steadily increased 
 until the emancipation proclamation and the close of the war 
 brought some 3,000,000 under its charge. The AVar Depart- 
 ment had oversight of this class till 1864, when thej- passed to 
 the care of the Treasury. The first Freedman's Bureau bill 
 of March 3, 1865, established a bureau of abandoned lands; 
 refugees, and freedmen as a division of the Department of 
 War. lender the charge of General Howard and other arnw 
 officers the work was carried on for many years after tbfe close 
 of the rebellion. Throughout the whole course of the war we 
 find army officers legislating regarding the negroes. Thus,. 
 General Sherman, after his march to the sea, established 
 40,000 destitute freedmen upon the sea islands, and b}' that 
 act gave them homes in the richest district of the South. The 
 experiment seemed to prove successful, for we find them 
 .setting up a form of government, which, of course, caused 
 trouble when the war was over and the former owners 
 returned. 
 
 Having thus briefly outlined militar}^ government, we will 
 pa.ss to a consideration of the functions and powers exercised 
 by it. These were along the line of appointment and removal, 
 management of elections, regulation of the courts, military 
 conmiissions, church affairs, and measures taken for trade, 
 labor, and finance. 
 
 ' Liilor, Cyclopedia, v. 2, p. L'XO. 
 
 2F. Moore, Rebellion Record, v. .s, p. 2 (N. Y., l.Stil-lStiiS). 
 
MILITARY GOVERNMEISrT OF SOUTHERN TERRITORY. 481 
 
 IV. 
 
 The executive power of appointment and icnioval <it" otiiccrs 
 was used extensively throughout the wai\ Otticials were 
 rtuuoved for using' treasonable language, taking the oath to 
 the Confederacy, refusal to take the oath of alU'giance, and 
 thwarting the will of the commanders. Not only were public 
 officials of high and low degree thus removed, but even those 
 who were connected with semi public or private concerns were 
 looked after. In 8t. Louis General Halleck ordered that tlie 
 president, secretary, librarian, directors, and other officers of 
 the Mercantile Library Association; president, secretarj^ and 
 directors of the Chamber of Commerce should resign if they 
 failed to take the oath, and any attempt to exercise their office 
 was to be severed punished. ^ The officers and professors of the 
 State University were put under similar interdict." Ma3'ors 
 of cities, State officials, as 'well as judges and clerks of courts, 
 were removed and others appointed in their places. Thus, in 
 Tennessee, December 4, 1862, the clerk of the Henderson 
 County court was removed for treasonable language, partici- 
 pated in by his wife and daughters.'' Even where officials were 
 not removed. they were strictly subordinate to the military com- 
 mander, and it was by permission of the latter that they were 
 allowed to hold their positions. Much if not all of the civil 
 policy was dictated by army men, and hence these officials 
 l)ecame little more than figureheads. Such action on the part 
 of the commanders was not as arbitrary as it would seem, for 
 it was to their advantage to retain the civil officials, so far as 
 possible, and thus relieve themselves of extra responsibility'. 
 Consequently their removals in most cases were for just and 
 sufficient cause. 
 
 This power was exercised not alone b}' the commanders, 
 but also b}^ the President, and both of these went even further 
 and legislated to create new offices. Thus Lincoln established 
 the institution of militar}" governor, with extensive powers, 
 and also the provisional court of Louisiana, with an entirel}' 
 new jurisdiction. The officers of this court were appointed 
 
 'Moore, Rebellion Record, v. 4, \i. b>. 
 2 Ibid., p. 129. 
 ■nbid., V.6, p. 233. 
 
 H. Doc. 548, pt 1 31 
 
482 AMERIOAK HISTORICAL ASSOCIATION. 
 
 in the North and then .sent South to found the new institution. 
 The coranuinder.s, on the other hand, created militar\' conmiLs- 
 .sions and courts-martial, and appointed various boards — e.g., 
 these of finance, streets, and landings.^ Military government 
 not only legislated to create new offices, but it also became 
 the sole judge of the eligibility of the officers elected and 
 appointed. The attempt seems to have been made to use 
 civilians as umch as possible, but when suitable men of this 
 .sort could not be found, army officers were taken, and as a 
 general rule they were per.sons of ability, Avho ruled justh\ 
 The chief appointments of the period were those in cities like 
 Memphis, New Orleans, and Nashville, and along with these 
 must be placed .those made Ijy the President and the militar}" 
 governors, especially Johnson in Tenne.S!5ee. 
 
 Closely connected with officeholding is the matter of elec- 
 tions, which were supervised both in the border States and in 
 the South by army officers. Thus, in Louisiana Brigadier- 
 General Shepley, the military governor, was ordered by Sec- 
 retary Stanton to hold an election. Registration of all loyal 
 citizens in each parish was first to )je taken, and after that an 
 election for delegates to a convention to form a constitution 
 and establish a civil government. The convention was to be 
 based upon representation of 1 delegate to ever}' 1,250 loyal 
 citizens. Authority was also given to appoint the necessary' 
 officei's to complete the registration, preside at the elections, 
 count, and sort the ballots." Again, we find Johnson, ])y a 
 proclamation of January, 1865, confirming the persons se- 
 lected by a convention of loyal ])eople to hold an election. 
 They were also authorized to hold such elections, which Avould 
 seem to indicate that they could not have been held without 
 permission, and the executive committee of each division was 
 giA'en the power to fill all vacancies.^ 
 
 The most interesting side of election control is to be seen 
 in the border States, whose constitutional rights were theoret- 
 ically equal to the rest of the Union. At Henderson, Ky., 
 Juh'' 28, 1863, an order was issued by which army officers 
 were to see that none ))ut loyal persons either acted as election 
 judges or voted, and that no disloyal person was a candidate.* 
 
 1 .r. I'artoii, Butler in New Orleans, p. 453 (N. Y., 1864). 
 -•O. K. R., s. I, Pt. I, Vol. 26, p. 695. 
 •' Report of Joint Committee on Reeonstriicdoii, ]■. '.»-!;{. 
 ••Annual Encyclopedia, 1863, !>. 568. 
 
MILITARY G0VP:RNMENT OF SOUTHERN TERHIToKY. 4<S8 
 
 Similar proclamations wcnv issued in other parts of th(^, Statr. 
 By another order of July iJit, county judges were to appoint 
 the judges of elections, ^vho nuist be Union men, and these 
 officials uuist see that no person is placed upon the hooks as a 
 candidate who is not a Union man. They were also ordered 
 to administer the oath of allegiance to all xoters.' A few 
 daj's later the State was put under martial law on the ground 
 that a rebel force was trying to intiuence the election. In 
 this the commander stated his intention of not interfering 
 with the election, and the civil autiiorities uere not to be sus- 
 pended by the order. Again, in July, 1865, the sheriff of 
 Kenton Count}' was ordered not to [)ermit the name of Al\ in 
 Durell to appear upon the poll books.-' All ottendej-s undei- 
 these commands were held for trial ])y military connuissions. 
 and the sentences were carried out b\' martial law. In Mis- 
 souri, October 12, 1864, it was declared that voting conti-aiy 
 to orders is a military offense, as is also interf(n-ence with elec- 
 tions. Here it was explained what the meaning of the State 
 convention was when it said who should vote.'* In this way 
 the military became the judge and interpretei" of the civil 
 authorities and even of the laws themselves. In Maryland 
 the provost-marshals were to assist the election judges in ad- 
 ministering the oath of all(>giance, and wei-e lo report all 
 those failing to carry out the regidations.^ Thus it was that 
 the military authority became superior to the <i\ il, and elec- 
 tions came largely under Governnu?nt control. 
 
 Judicial work formed no small })artof military governnuMit 
 and was carried out through courts-martial, military connuis- 
 sions, provost courts, and ci\il courts which wove established 
 by military authority or exercised their functions under its 
 sanction. As has been already noted, courts-martial act gen- 
 erally upon purely military ofi'enses in which soldiers are 
 alone concerned. This is a court fully recognized in the Army 
 Regulations and carries on its work in time of peace as well 
 as in war. The military commission, on the other hand, arises 
 
 10. R. R., s. I, Pt. II, V. 23, p. 570. 
 2 Annual Encyclopedia, 1864, p. 15:?. 
 30. R. R., s. I. Pt. III. V. n, p. SOI. 
 •»Ibid, Pt. II, V. 11, p. :««. 
 
484 AMERICAN HISTORICAL ASSOCIATION. 
 
 when the ordiimiy judiciary is overthrown, or in cases where 
 civilians as well as niilitar}' are involved. Such courts were 
 first established by (ireneral Scott in Mexico, and during the 
 'civil war the}" were fully recognized b}- a(*ts of Congress, 
 orders of the President, and I)}' rulings of the Supreme Court. 
 These courts are constituted by the same authority as the court- 
 martial, and are generally composed of from three to five 
 members. Their decisions have to be approved by the com- 
 mander, and their jurisdiction is generalh' limited to terri- 
 tories held under militar^^ government. Cognizance was taken 
 of the violation of the laws of war, crimes and offenses recog- 
 nized by local courts which were not open, and of all breaches 
 of militarj^ orders and regulations. The procedui'c of such 
 courts was the same as that of the court-martial, and its deci- 
 sions were final; so held by the Supreme Court in the case of 
 Ex parte Vallandigham.^ The powers of this institution were 
 practically unlimited, as is shown b}^ the fact that fines vary- 
 ing from $yo,0(»0 to $250,000 were imposed by it.^ 
 
 The extent of their jurisdiction may be ])est judged b}- 
 enumerating some of the causes tried b}- them. These included 
 unauthorized correspondence with the enemy, blockade run- 
 ning, carrying mail across the frontier, drawing bills of 
 exchange, manufacturing arms for the enem}", publicly ex- 
 pressing sympathy for the South, violating oaths, aiding pris- 
 oners to escape, burning l)ridges, railroads, steamboats, and 
 cutting military telegraph, engaging in guerrilla warfare, hin- 
 dering enlistments, or aiding deserters. All these are closely 
 connected with war and would necessarily come under a mili- 
 tary court, at least in hostile territory, but these courts did 
 not stop here. They dealt with fraud, embezzlement, bribery, 
 breach of the peace, horse stealing, rape, arson, receiving 
 stolen goods, riot, assault and liatterv, interfering with elec- 
 tions, and election frauds. In many of these no soldier was 
 involved, and hence they became purely ci\il cases, but 
 nevertheless military courts judged them. 
 
 Where civil courts still existed, supervision was exercised 
 to a greater or less degree. Not only was this done, but 
 military government Avent further and established uvw civil 
 courts. Thus in Missouri the judicial oflScers are commanded 
 
 11 Wall., 243. 
 .2 William Winthrop, Abridg. of Military Law, p. 331-35 (N. Y., Is71). 
 
MILITARY GOVERNMENT OF SOUTHERN TEKRH'oKY. 4X5 
 
 to strictly enforce the laws of St. Louis, and llic ( riniinal 
 court is directed to see that there is a full list of o i and jurors 
 and that the^' inquire into all crimes.' In Louisiana duriiii:- 
 the same year the military governor established a complete 
 system of courts based upon that which had pre\iously existed. 
 Limitation was put upon the judiciar\" rciiardino- their rioht 
 to entertain actions against Army and Navy oiticers, and all 
 such cases were dismissed." 
 
 In the towns and cities provost courts were founded \\ hicli 
 were military in character and had jurisdiction onci- both 
 criminal and civil cases. They not only did the work of the 
 ordinary police court, but also that of the lower State courts. 
 In New Orleans a court of this sort rendered a judgment for 
 $130,000,'' and it also dealt with the administration and suc- 
 cession to estates, together with divorce.' These courts were 
 in general governed by the laws of the State in which they 
 wer-e held. 
 
 One of the strangest features of all the judicial legislation 
 of this period was the foundation of the provisional court of 
 Louisiana. This was established l)y the President in an ordei- 
 of October 20, 1802. in Avhich he said that the judiciary had 
 been overthrown and that there was a necessity for s(Mne kind 
 of a court. The order said: 
 
 I have therefore thought it proper to appoint, and I do lierel)y consti- 
 tute a provisional court which shall be a court of record for the State of 
 Louisiana; and 1 hereby appoint Charles A. Peabody, of New York, to be 
 a provisional judge to hold said court, with authority to hear, try, and 
 determine all causes, civil and criminal, including causes in law, equity, 
 revenue, and'admiralty, and particularly all such powers an<l jurisdictions 
 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 jii-actice 
 which has been customary in the courts of the United States and Uouisiana, 
 * * * his judgment to be final and conclusive.'' 
 
 As a judge, he was to have power to establish lules and reg- 
 ulations for the exercise of his own jurisdiction, and in addi- 
 tion he was given the power to appoint the prosecuting att( )rney , 
 marshal, and clerk of the court, wiio wvvo to perform their 
 duties according to the rules given by him. The appointments 
 
 'General Orders, No. 39, Feb. 14, 1862. o. K. K., s. II, v. 1, \k li>; 
 
 20. R. R., s. I, Pt. II, vol. 5,S, p. 1005. 
 
 ^\\. Hirkliimer.Mil. Gov'ts Mar. Law, ]>. 105. 
 
 ■» Annual Eiic.Vflopedia, lS(i:i, p. 77i. 
 
 'Ibid, i)p. 770-775. 
 
486 AMERICAN HISTORICAL ASSOCIATION. 
 
 were to continue during- the pleasure of the President, ))ut 
 were not to last l)eyond the period of niilitary occupation or 
 the restoration of peace and civil authority. These men were 
 paid by the War Department, which clearly shows their char- 
 acter. This order gave to .Tudge Peabody judicial power over 
 all kinds of cases, and appeal, which in the nature of things 
 would have been to the President, was forbidden by the order 
 organizing the court. Thus it became the Alpha andOmegaof 
 justice for Louisiana, 
 
 The court sailed from New York with General Banks's expe- 
 dition, and went into operation in January, 1863, being at 
 once occupied with important business. So far as possible 
 the laws in force in the State were adopted, but orders of the 
 commanders were recognized as of paramount authority.^ It 
 was careful to avoid anj^thing like a militar}" administration 
 of justice, and was always governed by the principles of law. 
 In criminal cases a grand jury was summoned to procure an 
 indictment and a regular jur}' to try the case. As an illustra- 
 tion of the speed with which the court acted, it may be noted 
 that three capital cases were tried in one week, two of which 
 residted in conviction. Such an example might well be placed 
 before some" of the courts of the present day, where justice is 
 often delayed for years. Crimes against the person had sel- 
 dom l)een punished in that locality l)efore, and a valua])le 
 lesson was thus taught, of w^hich all law abiding people ap- 
 pro\'ed. Before the court came many cases which had been 
 previously tried in the provost court, whose arguments ^\■^n•e 
 oral, no notes being taken of the evidence, and the decision 
 being given soon after tiie arguments were heard. This, of 
 course, caused nuich difficult}', and yet the provisional court 
 as a general rule sustained the decisions of the lower court, 
 finding it easy to do so on strict legal principles.- Such facts 
 throw an interesting side light upon the efficiency of the provost 
 court, which was presided over by a soldier. Prize cases were 
 l>r()iight t)ef{)i"e the provisional court. l)ut it refused to entertain 
 them upon the ground that its jurisdiction was derived from 
 the President and not from the Constitution. This was done 
 in spite of the authority given to treat of such actions. 
 
 1 Aunuiil Kiu-ycU>i)i'(li!i, lSti:5, p. 771. 
 
MILITARY GOVERNMENT OF SOTTTHKKN TKRHITnin. 4ST 
 
 vr. 
 
 Union of church and state has boon viooioiisU opposiul in 
 this countiy, and many of the oarh' inhabitants of America 
 came hither as a protest ao-ainst that system as it existed in 
 Europe. The feeling against the union of the two institu- 
 tions has been so strong that it has become incorporated in 
 the Constitution, and is regarded as one of the tenets of true 
 democrac3\ As already pointed out, however, ordinary rights 
 give wa}^ in time of war, and consequentlv we find military 
 government interfering with ecclesiastical matters and church 
 management. Freedom of worship was curtailed, and minis- 
 ters were told how they must act and how not. The greatest 
 trouble arose in regard to prayers, which were omitted for 
 President Lincoln and otl'ered for fleti'erson Davis, as presi- 
 dent of the Confederac}'. Such proceedings were at once 
 stopped by the commanders. The Southern ministers got 
 around this by omitting to read the prayers for the country 
 and the President, and instead the people prayed in silence 
 for the welfare of the South and the triumph of its cause. 
 Another device was to omit prayers of all sorts at that point 
 in the service. This was advised by Bishop Wilmer, of Ala- 
 bama, whose action called forth an order from the officer in 
 charge of that district, forl)idding the ministers to preach or 
 hold divine service, and at the same time closing their places 
 of worship until they should show a sincere retui'n to their 
 allegiance.^ 
 
 Generai Baker gives an instance of a church 2;") miles from 
 Washington where the minister had the key- to the building 
 and would not allow the loyal people to enter. The general 
 went to the ministin- and forced him to urdock the door. RcIjcI 
 sympathizers attempted to break up the meeting, with the 
 result that they were arrested and conveyed to prison at 
 Washington.^ We tind (reneral Butler removing Rev. (xeorge 
 D. Armstrong, a Presbyterian clergyman of Norfolk, and 
 sending him into c(niHnement at Fort Ilatteras, N. C. This 
 man had taken the oath of allegiance and had prayed for the 
 President, but was. not fulh' in sympathy with the Fnitcd 
 States.'* In New Orleans the same general had a great deal 
 
 IT. B. Van Horn. General Thomas, p. 409 (N. Y., 1882). 
 
 2L. C. Baker, History of the Secret Service, p. 230 (Phil., lMi7i. 
 
 3G. H. Gordon, War Diary, p. 407 (Boston, 1882). 
 
488 AMKRICAN HTSTORIOAL ASSOCIATION. 
 
 of trouble with the churches. He found that they planned 
 to celebrate a fast day in accordance with some proclamation 
 of Jefferson Davis, and consequently at once ordered that no 
 such fast should be held. ^ 
 
 In Mississippi we find permission given to a certain bishop 
 to return to his home and duties till the pleasure of the 
 War Department is known. The same order also permitted 
 the people to conduct divine service as the^' pleased, saying 
 that pu))lic prayer for the President of the United States was 
 no longer necessary.'^ This shows that there had been ver}' 
 strict supervision previously, even going so far as to banish 
 men who acted contrary to the wishes of the military. John- 
 son in Tennessee called the ministers before him and ordered 
 them to take the oath, and on their refusal sent them to 
 prison.'' In St. Louis a Dr. McPheeters was removed from 
 his church because he had a rebel wife, rebel relations, and 
 expressed rebel sentiments. The matter was brought to the 
 attention of Lincoln, who said that the general upon the spot 
 must be the judge, but that the United States could not under- 
 take to run the churches of the country.* Ministers in some 
 cases were arrested in the midst of the service, taken to prison, 
 and afterwards tried b}'^ militar}^ commission. An order of 
 November 30, 1863, appears to have been issued from the 
 War Department giving to Bishop Ames the control and pos- 
 session of all Methodist churches in certain of the Southern 
 States whose pastors had not been appointed b}- loyal bishops, 
 and ordering the troops to help in the carrjnng out of these 
 orders against all resistance." The question was also involved 
 in the disposition of church property, as between loyal and 
 disloN'al claimants, and conse([ucntly lasted till after the war. 
 
 Alongside of the freedom of the pulpit might be pliiced 
 that of the press, which is apt to do a great deal of harm iri 
 time of war. After Fremont had declared martial law in 
 Missouri the provost-marshal suppressed the War Bulletin 
 and the Missourian, published at St. Louis, for making- 
 false statements about military movements.* The editors of 
 
 'O. R. R., s. I, V. 15, p. 426. 
 
 2 Annual Encyclopedia, 1861 p. 549-551. 
 
 3 Ibid., 1862, p. 7G7. 
 
 •t Lincoln '.s Works, v. 2, i>. 21)0. 
 
 ■'•Ibid., J). 486. 
 
 ^Annual Encyclopedia, 1.S6], p. ;i2y. 
 
MILITARY GOVERNMENT OF SOUTHERN TKKRI'l'oin . 4S<) 
 
 the Christian Advocate soon after this made in(|iiii'i('s as 
 to what they would ho pcrniitted to print. The pi'ovost-niar- 
 shal replied, advising them to refrain from publishing })oliti( al 
 articles and keep their paper a religious one, as it pretended 
 to be.' j\Iay 11. IS*;;^), (leneral Davidson prohibited tiie .sa!(! 
 or distrilMition at St. Louis of the New York Freeman's ,Ioui-- 
 nal and the Caucasian, the Columbus Crisis, Chicago Times, 
 and the I)ul)uquc Herald." flune 21, (xoneral Schenck forbade 
 the editors of the Baltimore papers from i)u])lishing extracts 
 from the New York World, Express, Caucasian, Cincinnati In- 
 quirer, and the Chicago Times. ' These uiav serve as examples 
 of this power, which was exercised very widely, ati'eeting 
 papers both in the North and in the Soutii. ' 
 
 VII. 
 
 We now come to one of the most important phas(\s of mili- 
 tary government, vi/, its economic legislation, which allcctcd 
 the very foundations of the society over which it i-uled. The 
 result of this woi'k was a great mass of laws and regulations 
 relating to trade, laiior, and iinance. The necessity for such 
 legislation grew out of the fact that part of the country was 
 under the control of an enemy with whom no trade could be 
 allowed; in the second place, a slave race had been made free, 
 and slave labor had been exchanged for free labor, a change 
 which struck at the foundations of a society; and, third, a 
 depreciated paper currenc}^ had b(>en established in the South, 
 which became the only medium of exchange. In order to 
 prevent these elements of chaos from gaining the upper, hand, 
 military authority came in as the protector of the people. 
 
 The first regulations of trade were adopted by the (xovern- 
 ment at Washington, and dealt with intercourse with th(! South, 
 out of which there grcAV an extensive sj^stem of Treasury rules 
 and agents. Under this, special licenses were issued which 
 gave the holder the right of trading in a limited district. The 
 regulations in regard to cotton are well illustrated by General 
 Orders, No. 61, issued at Murfreesboro, Tenn., March 29, 
 
 ^Annual Encj'clopcdia, IStn, p. :{28. 
 2 Ibid, 1863, p. 423. 
 •nbid., 1S(;3, p. 424-425. 
 
 4 There wore suppressions in Maryland, District of ■ Columbia, Kentucky, Missouri. 
 Louisiana, Virginia, and Tennessee. See .Vnnual Encyclopedia, l.si;4, )>. 394. 
 
490 AMERICAN HISTORICAL ASSOCIATION. 
 
 1808. All citizens desiring to purchase this staple must pre- 
 sent ample vouchers of their loyalty to the United States, 
 and in addition sign agreements that they will abide by the 
 Treasurj'^ rules. After getting possession of the cotton, they 
 had to forward to the Provost-Marshal-General a statement of 
 the price paid, amount purchased, and the name of the seller. 
 The. party making the sale was only permitted to receive pay- 
 ment in full on presentation of proper evidence of loyalty, and 
 until that was given not more than ten per cent of the contract 
 price could be paid.^ 
 
 Trade with the negroes was regulated in numerous orders.^ 
 Thus, no one could purchase clothing from lal^orers, or their 
 property, without permission of the authorities; neither could 
 liquor be sold to the colored people, on pain of fine.'' No 
 license, tax, or fee could be collected for engaging in certain 
 occupations, and all transfers of property, real or personal, 
 by persons not yet returned to their allegiance were declared 
 to be null and void.* Under the regulation of trade came the 
 control of the railroads, which were largely taken over by the 
 Government. Consequently travel was supervised, and in man}' 
 places a troublesome system of passes was put in force, which 
 t)V no means increased the pleasure of travel. In Louisiana 
 all appropriations for railroad material had to be appro\'ed by 
 the military superintendent." 
 
 The (Question of labor presented itself as soon as the ti'oops 
 moved South, for the contrabands flocked to the camps and 
 were allowed to remain for the slight work they might do. 
 After the (unancipation proclamation steps were taken to 
 establish rules for this large class of unemployed. August 
 10, 1863, camps were established at all military posts in the 
 States where slavery had been al)olished, into which the 
 negroes were gathered under suitable officers, and rations 
 were furnished them in return for labor. Thej^ could-be hired 
 to planters on promise that they would not Ix^ taken outside 
 of military jurisdiction, and to insure the keeping of that 
 promise bonds were demanded. These negroes were fre- 
 (juently employed upon public works, in gathering the crops 
 
 10. R. R., s. I, Pt. II, V. 23, p. 189: also Pt. H, v. 17, ]>. m;. 
 
 2 Moore, Rebellioii Record, v. 8, pp. 370-372. 
 
 sibid., V. 8, p. 370-374. 
 
 *0. R. R., s. I, Pt. I, V. 15, p. ft73. 
 
 f'lbid., Pt. II, V. 48, p. 777. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 401 
 
 from abandonod plantations, and in any other matters wliicli 
 were considered for the best interests of the department. 
 Ever}^ colored person about the military posts had to be 
 employed by some white, or else he was sent to the (•ann)s. 
 Contracts mioht be made with the freedmen for their labor at 
 so much per month, or persons might employ whole families, 
 clothing, feedino-. caring- for the sick and infirm, and oi\ino- 
 them in return for their services not less than one-twentieth 
 of the crop. All such parties had to register with the provost- 
 marshal, giving their names, occupation. I'esidence. and the 
 number of negroes to be employed. Honds had also to l)e 
 given for kind treatment, proper care, and as security against 
 carrying them away.^ 
 
 The commanders even went further in some cases and set- 
 tled the hours of labor, wages, etc. Thus (xeneral Banks in 
 Louisiana, February 3. ISfU, ordered that the hours of labor 
 in winter should be nine and in sununer ten, for which they 
 were to be paid at the rate of $3, $6, and $8 per month, half 
 of the amount being reserved till the end of the year. The 
 laborers were to be given a portion of the land to cultivate on 
 their own accoutit, and in all conti'acts of this sort tiic ci-()j)s 
 were to stand pledged for the labor. The negroes could 
 choose their employers, but once chosen they must stay by 
 them, and they could not ])ass fron'i one place to anothci' ex- 
 cept in accordance with the rules of the provost-mai'shal. In 
 conclusion, the general said: ''These regidations are based 
 u])()n the assumption that lal)()r is a public duty and idleness 
 or vagran-cy a crime."' This order is typical, es])ecially in 
 holding the crops as a })U'dge for wages, the i-eservation of 
 the latter till the end of the year, care of the sick and 
 disabled, and the tiling of lists of employed witii the })ro\ ost. 
 This officer also settled all disputes that might arise over 
 contracts, or between laborers and their employers. 
 
 Before leaving this subject we must notice the regulations 
 put forth at St. Louis in 18<)1. in which the president and 
 directors of railroads had to tile bonds that they would em- 
 ploy only Union men.' It was further asserted that there 
 existed combinations of persons to prevent mechanics and 
 
 iMcPherson, Political Manual, 186S, p. 294 (Washington, 1868) 
 
 2 Moore, Rebellion Record, v. 8, pp. U70-37'2. 
 
 3 Ibid., V. 4, p. 129. 
 
492 AMERICAN HLSTOKICAL ASSOCIATION. 
 
 laborers from workinof in manufactnring- establisliiiionts ex- 
 cept upon terras prescribed by outsiders. Consequently it 
 was ordered that such persons should not attempt to prevent 
 other people from working on such terms as they chose, 
 especially in places manufacturing goods used in the naviga- 
 tion of Western waters or in transport service of the United 
 States. No person ,vas to hang about or annoy employees, 
 nor was any association to dictate to the proprietors.^ Here 
 is legislation that might well be studied b}^ those who seek to 
 check the power of the modern labor union. 
 
 When military government first took up its task it was 
 confronted with the question of iinance, which demanded 
 immediate attention. Butler, in taking possession of New 
 Orleans, found that the Imnks were paying their de])ts in 
 Confederate money and at the same time obliging those who 
 owed them to pay in United States coin. He compelled the 
 ])anks to pay no more Confederate currrency to creditors 
 and depositors, and ordered that all deposits be paid in notes 
 of the bank. United States Treasury notes, or in gold and 
 silver. Private })ankers were to receive and pa}' out only 
 notes of city ])anks or United States currenc}'. Savings banks 
 were pcn-mitted to issue notes not to exceed one-third of their 
 deposits and in denominations of not less than one dollar, for 
 whose redemption their assets were made liable. Incorporated 
 banks were permitted to issue notes in denominations from 
 one to ti\'e dollars, notwithstanding an^'thing to the contrary 
 in their charters. All persons and firms who have issued 
 " shinplasters"' nuist redeem them on presentation at their 
 places of l)usiness between the hours of 9 and 3, either in 
 gold or silver. Treasury notes, or in the currency bills of 
 the city ])anks, upon penalty of contiscation of their pro])erty 
 or imprisonment at hard la))or. Private banks were also 
 allowed to issue notes in proportion to the specie that they 
 could show in their vaidts to a military commission." 
 
 This was followed bv an order which forbade bank notes 
 being exchanged for rebel currency' of any sort. Transfers 
 of property made in consideration for such money were 
 declared null and void, and the propertv was confiscated.'' It 
 was further decreed that dividends, interest c()ui)()ns. and cer- 
 
 1 O. R. R., s. I, Pt. Ill, V. 34, p. 345. 
 
 2 0. R. R., s. I. V. 15. pp. 437^38. 
 ••'Ibid., p. 426. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRIToUV, 4'.)8 
 
 tificates of stock duo to llnitod States citiziMis ami held l)ack 
 .should be paid at once. All hanks were eoinpelled to make a 
 statement at certain times to a board of finance, made uj) of 
 mihtar}' appointees.' Speculation in uojd iiiid silver with the 
 South was forbidden, and no coin was allowed to pass l)eyond 
 militar}^ jurisdiction. United States Treasury notes were 
 declared leo-al tender, and refusal to take them resulted in 
 arrest and seizure of crops. 
 
 Local taxes were enforced by the military, and in addition 
 special taxes were laid upon certain classes. In New Orleans, 
 Butler discovered a list of |)ersons who had contributinl to the 
 support of the Confederacy, and at once levied upon them for 
 the support of the poor.^ Along- with this went the se((ues- 
 tration of property of those who were enoai»('d in rebellion. 
 In Louisiana foreclosure of mortgages and forced sales were 
 forbidden except where such action would be contrary to 
 justice and equity. However, if taxes could not be paid, 
 forced sales were permitted to satisfy the claim.'' Not only 
 did Butler display his abilities as a financier in New Orleans, 
 but also in the Department of the James, where he raised a 
 large civil fund by levying special taxes upon those carrying 
 on a speculative trade* under permits. General Gordon, his 
 successor in this field, also laid taxes, licenses, and fees for a 
 similar fund. The extent to which finance was carried by the 
 commanders undoubtedly reached its limit in Tennessee, where 
 General Mitchel sold captured Confederate bonds to the rebels 
 at a gain of some $5, 000.'^ 
 
 VIII. 
 
 In the municipal as in other branches of govei-nment the 
 military exerted a positive and a negative influence; it estab- 
 lished and destroyed; it legislated and it vetoed. Along the 
 positive side it founded courts, legislated regarding prop- 
 erty, set up bureaus which had charge of ditt'erent phases of 
 city life, put in force a S3'stem of licenses. a])pointed otticials, 
 and established police forces. On the negative side it dis- 
 
 10. R. R., s. I, V. 15, pp. 518, .527. 
 
 -K41,91t).25 was thus raised. I'arton: (ionoral Butler in New Orleans, pp. :}10-311. 
 
 3 0. R. R.. .s. I., Pt. II, V. 41, p. 801. 
 
 <Butler'.s Book, p. 813 (Boston, 1892). 
 
 6F. A. Mitchel: Ormsby Macknighl .Mitchel, eluip. i:i (Bo.ston, 1S«7). 
 
494 AMERICAN HISTORICAL ASSOCIATION. 
 
 placed officials, set aside former regulations, disapproved the 
 action of the civil authorities, and put a veto upon the news- 
 papers. Such, in outline, is the work done by military gov- 
 ernment in the municipalities, some phases of which we will 
 examine in more detail. 
 
 When this government was first established in the cities, 
 public order was the thing demanding immediate attention. 
 Consequently regulations were put forth for the police, defin- 
 ing their powers and seeing to the efficient working of the 
 same. Frequently such bodies were completely reorganized 
 as a military force, or else they were put under the control of 
 a military officer.^ As another aid to public order, provost 
 and military courts were founded. Vagrants were- forced to 
 work upon the public highways, and restrictions were laid 
 upon the citizens in regard to closing their social gatherings 
 at a certain time,^ a rule which was only strictly enforced 
 wiien the enem}^ were near. Then there were a vast luiniber 
 of questions relating to loyalty, e. g., the carrying of the 
 Confederate flag, insulting the Union flag and the officers and 
 soldiers of the United States. 
 
 General Butler started his government of New Orleans with 
 a proclamation asserting that he did not wish to interfere with 
 the nmnicipal authorities, but onl}' to rule the military forces 
 of the department and take cognizance of the ofl'enses com- 
 mitted b}" or against them.^ This policy he was not able to 
 carry out. The streets were not cleaned as they should have 
 been, and so he compelled the authorities to employ 2,000 
 men with the proper instruments for thirt}' days, each man to 
 receive 50 cents per day, and skilled labor to be paid at a 
 higher rate.* The work was done most efl'ectiv^ely under the 
 direction of a military superintendent, and the people were 
 forced to acknowledge that "the Federals could clean the 
 streets, if they couldn't do anything else."^ Butler had a 
 great deal of troul)le with the foreigners of New Orleans, who 
 were largel}^ in svmpathy with the South." He was forced to 
 
 iQ. R. R., s. I., Pt. ir, V. 17, pp. 294-295. 
 •^ Ibid., p. 295. 
 
 ^Parton: GenLTiil Biitk'r in New Orleans, p. 295. 
 Mbirl., pp. 317-318. 
 5 Ibid., p. 309. 
 
 '' In one case Butler seized a sum of money in oltiee of consul of Nethcrliuids. 
 nual Encyclopedia, 18C2, p. 1547. 
 
MILITARY GOVERNMENT OE SOUTHERN TERRITORY. 495 
 
 use rather vigorous measures against them, with the results 
 that many complaints were made to the United States Gov- 
 ernment by foreign representatives. 
 
 The greatest trouble here as elsewhere was with the women. 
 This class finally acted so outrageously that the general was 
 forced to issue the following order: 
 
 As officers and soldiers of the United States have been subjeetetl tn 
 repeated insults from the women (calling themselves ladies) of New Orleans 
 in return for the most scrupulous noninterference and courtesy on our jiart, 
 it is ordered that hereafter when a female shall by word, or gesture, or 
 movement insult or show contempt for any officer or soldier of the I'nited 
 States she shall be regarded and held liable to be treated as a woman of 
 the town plying her vocation.' 
 
 It is needless to say that the soldiers wim-c no longer spit 
 upon, and at least outwai'dly were shown respect. The order 
 aroused great feeling in parts of the North, and especially in 
 England and France. Here it was looked upon as giving free 
 license to the soldiers, but such it did not prove and certainly 
 was not intended to be. Upon this sul)ject Lord I'almerston 
 carried on quite a correspondence with our minister, Mr. 
 Adams, in which the latter got the best of the tilt." 
 
 In Memphis an extensive system of registration was en- 
 forced, by which loyal as well as disloyal had to enroll witli 
 the provost. Those who enrolled as loyal had to take the oath 
 of allegiance, and if the i)rovost had (l()u])ts as to the good faith 
 of the persons he could require bonds. Registered enemies 
 were not allowed to vote, or exercise any other franchise or 
 privilege, or appear as plaintiff or attorney at law ])ef()re any 
 court. They could not hold any position of honor or trust 
 within the city, neither could they conduct any business or 
 profession. Persons who remained enemies aftei- one year 
 were banished.'' 
 
 An important experiment in nuuiicipal government was 
 tried at Nashville. On the i)ermanent occupation of the tt)wn 
 as a military post there was a great increase of the social evil, 
 which seriously affected the health of the soldit>rs. Eai'ly in 
 
 10. R. R., .'^. I:, vol. 1.5, p. .510-511, 426. 
 
 2C. F. Adams, Life of Charles Francis Adanis, chnp. 13 (Boston and New York, liRXH. 
 
 3 General Orders, No. 65, May '26, 1865, Memphis, Tenn. 
 
49r) AMERICAN HISTORICAL ASSOCIATION. 
 
 1S(>8 tlu' commander attempted to remedy th(^ matter byg-ath- 
 ering- these people together and shipping them out of the eity 
 An attempt was made to land this cargo at Louisville, Ky. , 
 but tiie authorities refused to receive them. They were then 
 taken to Cincinnati, where similar treatment was offered. In 
 August the War Department ordered the steamer to return to 
 Nashville, with the result that sickness at once increased. A 
 plan was then worked out b}' which these people were placed 
 under medical supervision and permitted to ply their vocation 
 upon paj'uieut of a license. The mone}^ thus received was 
 used for the support of two hospitals, with the result that 
 sickness entirely disappeared.^ The system which was thus 
 started by the militar}^ has since been used with great success 
 in Europe, Japan, and some cities of this country. 
 
 IX. 
 
 From this brief stud}" of the functions exercised b}' mili- 
 tary government it is perfectly clear that it was an absolutism 
 of the most complete sort. Not only was the government 
 a))solute, but it was also paternal in that it regulated the 
 social conditions of life, especially as i-egards the relations of 
 the whites and the negroes. One might go further and say 
 that it was despotic in that the power was in the hands of 
 a few men whose will was law. While all these adjectives 
 may be applied, and have often been used in the description 
 of that institution, j^et these are not the vital questions. 
 Whether a government is absolute, paternal, or despotic 
 makes little difference, for in times past we have had such 
 forms of government and they have proved most effective. 
 Hence, the question which should be asked here is, whether 
 or not militay government was efficient; did it rule justly and 
 for the l)enetit of those over whom it was placed i 
 
 There can be no question as to the efficiency of this govern- 
 ment during the period under discussion. New Orleans, 
 under Butler, was cleaned as it had never been before in its 
 history, and for the first time in ^ears yellow fever had been 
 kept at a distance.^ For the first time also justice was thor- 
 
 1 Annual Encyclopedia, 1864, pp. 769-771. 
 sParton, General Biitlcr in New Orleans, p. 398. 
 
MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 497 
 
 oughly done in thtit city.^ In roforciice to Butlers action in 
 New Orleans it is well worth while quoting the letter of Gen. 
 Jeff Thompson, a Confederate leader, which deals with the 
 "woman" order and the condition of affairs in the city. 
 "What your intentions were when you issued the order which 
 brought so much censure upon 3'ourself I, of course, can not 
 tell, but I can testif}^ and do with pleasure, that nearly all of 
 the many persons who passed through nn' lines to and from 
 New Orleans during the months of August and September, 
 1862, spoke favorably of the treatment they received from 
 you; and with all my inquiries, which were constant. 1 dirt 
 not hear of a single instance of a lady being insulted by your 
 command."' The same evidence maybe^had upon the effi- 
 ciency of this government in Atlanta. Chattanooga, Savannah, 
 and Baltimore.^ The question was put to vote in Norfolk as 
 to whether the}' would rather be under the Fierpont gov- 
 ernment, which was civil, or the '"strong and steady govern- 
 ment of the military arm," and the vote was overwhelming in 
 favor of the latter.* Another straw which shows the condi- 
 tion of affairs is that Southern writers hav(^ little to say 
 against the militar}' government of this period. It is worth 
 our while to notice also the words of S. A. Goddard, the 
 English correspondent: 
 
 No complaint, to my recollection, has been made agains-t them (the gen- 
 erals) in any of the Southern towns that they occupied. On the contrary 
 their course has elicited the highest praise, and while exposed in many 
 cases to the gratuitous insults of females, their course toward them has been 
 marked by extreme forbearance and politeness. This is universally 
 acknowledged.* 
 
 Again, if we study the orders of the commanders in rela- 
 tion to the conditions and problems which the}^ were intended 
 to solve, the}^ seem to be eminently just and Avise. Justice 
 was administered b}- military courts with great fairness and 
 without unnecessar}^ delay. 
 
 1 Parton, General Butler in New Orleans, p. 432. 
 
 2 Butler's book, p. 419. 
 
 3Capt. D. P. Conyngham. Sherman's March through the South, pp. l>J4, 'JSl. 2'M 1 N. Y. 
 1865); John A. Dix Memoirs, v. 2, p. 34. 
 *The Solid South. Edited by H. Herbert, p. 223. (Baltimore, 18iH).) 
 5S. A. Goddard. Letters on the American Rebellion, pp. 80-81. (London, etc., 1870. t 
 
 H. Doc. 54:8, pt 1 32 
 
498 AMERICAN HISTORICAL ASSOCIATION. 
 
 MilitaiT government is important not only for the efficiency 
 with which it met the difficulties of that period, but also as a 
 link in that mit^hty process which crushed the rebellion, 
 destro^'cd slavery, and reunited a divided c-oimtry. It was an 
 important factor in chanoing the social structure of a soc'iet}^ 
 and preparing the way for the changes which were to follow. 
 Consequently, as forming the basis of reconsti'uction, it plays 
 an important part in the years of difficulty which followed the 
 close of the war. 
 
r^^