The southern enterprise. [volume] (Greenville, S.C.) 1854-1870, March 14, 1867, Image 1
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MBBp?" PPt' EDITOR.
B.MfcKfc1 Proprietor and Sub-Editor.
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W^^DFTHElTNrrEOSmE8,
BPrmV to the House, of RepresentBpffoe#
a 2??7J entitled " yln ylc/ to
> Provide fir the more Efficient Gov'
eminent of the Rebel States."'
To the House of Representatives :
I have examined the Bill " to provide
for the more efficient government of the
a ? r% . m . a -
reoei oiaies-- wun in a cure and anxiety
which lH transcendent importance is
calculated to awaken. I am unable to
give it my ftssent, for reasons so grave
that I hope a statement of them may
have come influence on the minds of the
patriotic and enlightened men with
whom the decision must ultimately
rest.
The Bill places all the people of the
(en States therein named under the nl>?solute
domination of military 'rulers;
and the preamble undertakes to give
the reason upon which the measure is
based, and the ground upon which it is
justified. It declares that there exist in
those States no legal governments, and
no adequate protection for life or prop*
erty, and asserts the necessity of en
forcing peace and good order within
their limits. It this true as matter of
fact t
It is not denied that the States in
aueslion have each of them an actnal
fovernment, with aU the powers, ex*
ccutive, judicial, and legislative, which
properly belong to a free State. They
are organized like the other States of
the Union, and, like them, they make,
administer, and execute the laws which
concern weir domestic sttairs. An existing
de /ado Government, exercit-ing
such functions as these, it itself (he law
of tire State upon all matters within its
jurisdiction. To pronounce the supreme
law making power of an established
State i legal, ia to say that law
itself is unlawful. *
' The provisions which these Governments
have made for the preservation
of order, the suppression of crime, and
the redress of private injuries, are in
substance and principle the same as
those which prevail in the Northern
Statee, and in other civilised countries.
%'hey certainly have not succeeded in
f>reventmg -the commission of crime, nor
las this been accomplished anywhere in
. the world. Tben\ as well as elsewhere,
offenders sometimes escape for want of
vigorous prosecution, and occasionally,
perhaps, by the inefficiency of courts, or
the prejudice of jurors, ft is undoubtedly
true that these evils havo been
much increased and aggravated, North
and South, by the demoralising Influ
ences of civil war. and by the rancorous
. passions which the contest lias engenilered.
But that these nconle are main
tainiog local Oovernraents for them
selves, which habitually defeat the object
v . of all government and render their own
lives and property insecure, ia in itself
utterly improbable, and the averment
of the liill to that effect is not supported
by any evidence which has come to
my knowledge. All the information 1
have on the subject convinces me that
the masses of the Southern people and
those who control their public acts, while
they entertain diverse opinions on questions
</ Federal policy, are completely
"united in the effort to reorganize their
society on the basis of peace, and restore
their mutual prosperity as rapidly and
completely as their cirqpmBtance* will
permit.
The Dill, however, would seem to
show upon its face that thh establish*
roent of peace and good order is not its
real objeot The fifth section declares
that the preceding sections shall cense
to operate in any State where certain
events shall have happened. These
events are?first, the Selection of dele*
gates to a Stale Convention by an elecs
tion at which negroes shall be allowed
to vote. Second, the formation of a
State Constitution by the Convention so
ehosen. Third, the insertion into the
State Constitution of a provision which
Kill secure the right of voting at nil
elections to negro**, and to such white
men m may not be disfranchised for rebellion
or felony. Fourth, the submiaaion
of the Constitution for ratification
I to negroes and while men not dfofmn
chined, and its actual ralififatioo by
* their vote. Fifth, the submission of the
State Constitution to Congress for examination
and approval, anil the actual
approval of it by that body. Sixth, the
adoption of a certain amendment to the
Federal Constitution by a vote of the
Legislature elected under the new Conaiitution.
Seventh, the adoption of said
amendment by a sufficient number of
other States to make it a part of the
Constitution of the United States. Ail
these conditions must be fulfilled before
the people of any of these States can
be releived from the bondage of military
domination ; but when they are fulfilled,
then immediately the pains and
penalties of the Bill are to cease, no
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matter whether there be peace and orrlap
nr nnl ?nA ilhnnt onr rafaranxa
to the security of life or property. The
excuse given for the Bill in the preamble
is admitted by the Bill itself not to
be real. The military role which it establishes
is plainly to be used?not for
any purpose of order, or for the prevention
of crime, but solely as a means of
coercing the people iuto the adoption
of principles and measures to which it
is known that they are opposed, and
upon which they have an undeniable
right to exercise their own judgment.
I submit to Congress whether this
measure is not, in its whole character,
scope, and object, without precedent
aud without authority, in palpable conflict
with the plainest provisions of the
Constitution, and utterly destructive to
those great principles of liberty and
humanity for which our ancestors on
both sides of the Atlantic have shed so
much blood and expended so much
treasure.
The ten States named in tho Bill are
divided into five Districts. For each
District, an officer of the army, not below
the rank of Brigadier General, is to
be appointed to rule over tho people ;
and he is to be supported with an effi
cient military force to enable him to
perform his duties and enforce bis authority.
Those duties, aud that authority,
as defined by the third sectioD of
the Bill, are,44 to protect all persons in
their rights of person and property, to
suppress insurrection, disorder and vio?
lence, and to punish, or cause to be pun
iehed, all disturbers of tbe public peace
or criminals." Tbe power thus given to
tbe commanding officer over all the people
of each District is tbat of an abso
lute monarch. His mere will is to take
tbe place of all law. Tbe law of the
Slates is now the only rule applicable
to the subjects placed under his control,
and tbat is completely displaced by the
clause which declares all interference of
Stale authority to be null and void. lie
alone is permitted to determine what are
rights of person or property, and be
may protect them in such way asinbis
discretion may seem proper. It places
at his free disposal all the lands and
goods in his Distiict, and he may dis
tribute tbem without let or binderance,
to whom he pleases. Being bound by
no State law, and there being no other
law to regulate the subject, he may
nrake a criminal code of his own ; and
he can make it as bloody as any recorded
in history, or he can reserve the privs
ilege of acting upon the impulse of his
private passions in each caso that srises.
lie is bound by no rules of evidence;
there is indeed no provision by which he
is authorized or required to take any
evidence at all. Everything is a crime
which he chooses to call so. and all persons
are condemned whom he pronoun
ccs to be guilty. He is not bound to
keep any record, or make any report of
his proceeedings. He may street his
victims wherever ho finds tbem, without
warrant, accusation or proof of probable
cause. If he give tbem a trial be
fofe he tpflicle the punishment, he gives
it of his grace andjmerey, not because
he is commanded to do so..
To a casual reader of the Bill.it might
seem that some kind of trial wan se?
cured by it to persons accused of ciime ;
but such ia not the case. The officer
44 may allow local civil tribunals to try
offenders," but of oonrse this does not
require that he shall do so. If any
State or Federal Court {/resumes to exercise
its legal jurisdiction by the trial
of a malefactor without his special petmission,
he can break it up, and punish
the judges and jurors as being themselves
malefactors. He can save bis
friends from justice, and despoil his enemies
contrary to justice,
II is also provided that " he shall hare
power to organise military commissions
or tribunals," but this power ho is not
commanded to exercise. It is merely
permissive, and is to be used only ''when
in his judgment it may he necessary for
the trial of offenders." Even if the sentence
of a commission were made a prerequisite
to the punishment of party, it
would be scaroely the slightest check
upon the officer, who has authority to
organize it as he pleases, prescribe its
mode of proceeding, appoint its members
from among his own subordinates,
and revise all its decisions. Instead of
mitigating the harshness of his singlerule,
such a tribunal would be used much
more, probably, to divide .the responsibility
of making it more cruel and unjust.
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Several provisions, dictated by the
humanity of Congress, hare been in'
sorted in the Hill, apparently tc restrain
tho power of .the commanding officer ;
but it seems to me that- they are of rio
avail for that purpose. The fourth sec
lion provides-?-Firtt. That trials shall
not be unnecessarily delayed;'hut 1
think I bare shown that tho power is
given to ponish without trial, and if so,
this provision is-practically inoperative.
Second. Cruel or unusual puoiahmenl
is not to be inflicted ; but who.is to de'
cide what ? cruel and what ia unusual f
The words have acquired a legal meaning
by long use in the Courts. Can it
be expected that military officers will
underaUud or follow a rule expressed in
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1"X oir F<
GREENVILLE, SOUTH
language .so purely technical, and not
pertnining in the least degree to their
profession I If not, then each officer
may define crnelty according to his own
temper, and if it be not usual, he will
make it usual. Corporeal punishment,
imprisonment, the gag, the ball and
chain, and the almost insupportable
forms of torture invented for military
nnniwlimunt lift witliin llu: rannn ul
choice. Third. The sentence of a com
mission is not to be executed without
being approved by the commander, if it
effect life or liberty, and a sentence of
death must be approved by the President.
This applies to cases in which
there lias been a trial and sentence. 1
take it to be clear, under this Hill, that
the military commander may condemn
to death without even the fqrm of a
trial by a Military Commission, so that
tho life of the condemned may depend
upon the will of two men, instead of
one.
It is plain that tho authority here
given to the military officer amounts t>
absolute despotism. But, to make it
still more unendurable, the Bill provides
that it may be delegated to as many
subordinates as he chooses to appoint;
for it declares that'he shall " punish or
cause to be punished." Such a power
has not been wielded by any monarch
in England, for more than five hundred
years. In all that time no people who
speak the Englirh language have-borne
such servitude. It reduces the whole
population of the ten States?all persons,
of every color, sex, and condition,
and every stranger within their limits?
to the most abject and degrading slavery.
_ No master ever bad a control so
absolute over his slaves, as this Bill
gives to military officers, over both
white and colored persons.
It nrsy be answered to this, that the
officers of tho army are too magnanimous,
just, and humane to oppress and
1'1'VMI rt oui'j U^nicu 1
do not doubt that the army officers are
as well entitled to this kind of confidence
as any other class of men. But
tho history of the world has been written
in vain, if it do not teach us that
unrestrained authority can never be safely
trusted in human hands. It is almost
sure to be more or less abused nn
der any circumstances, and it has always
resulted in gross tyranny where the ru
lers who exercise it are strangers to their
subjects, and come among them as the
representatives of a distant power, and
more especially when the power that
sends them is unfriendly. Governments
closely resembling that here proposed,
have been fairly tried in Hungary and
Poland, and the suffering endured by
those people roused the sympathies of
tho entire world. It was tried in Ire
land, and, though tempered at first by
principles of English law, it gave birth
to cruelties so atrocious that they are
never recounted without just indignation.
The French Convention armed its deputies
with this power, and sent them to
the Southern departments of the Republic.
The massacres, murders and
other atrocities which they committed,
show what the passions of the ablest
men in the most civilised scciety will
tempt them to do when wholly unrestrained
by law.
The men of our race in every age
have struggled to tio up the bands of
their governments and keep them within
the law ; because their own experience
of all mankind taught tbem that
rulers could not be relied on to concede
those rights which they were flot legal
ly bound to respect. The head of a
great empire has sometimes governed it
with a mild and paternal sway ; but the
kindness of an irresponsible deputy never
yields what the law does not extort
from him. Between such a master and
the people subjected to his domination,
there can bo nothing but enmity ; lie
punishes them if they resist bis authority,
and, if tbr-y submit to it, he hates
them for their servility.
I come now to a question which is, if
possible, still more important. Have
we the power to establish and carry into
execution a measure like litis ? I answer,
certainly not, if we derive our
authority from the Constitution, and if
we are bound by the limitations which
it imposes.
This nronosition is nerfeetlv clear?
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that 110 branch of the Federal Government,
executive, legislative, or judicial,
can have any just {towers, except those
which it derives through, and exercises
under, the organic law of the Union.?
Outside of the Constitution, we have no
legal authority more than private eititens,
and within it we have only so much
as that instrument gives us. This broad
principle limits alF our functions, and
applies to all 'subjects. It protects not
only tbo citizens of States which are
within the Union,.but it shields every
hurruin being who comes or is brought
under our jurisdiction. We have no
right to do in one place, more than another,
that which the Constitution says
we shall not do at all. If, therefore, the
j Southern States vrcro in truth out of the
Union, we could not treat their people
in? way which the fundamental law
forbids.. ?
Some persons assume that the sue
o&ss of our arm* in crushing -the opposin
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DP?XJL^rt
CAROLINA. MARCH 14, 18
lion which was made in some of the
States to the execution of the Federal
laws, reduced those States and all their
people?the innocent as well as the
guilljr?to the condition of vassalage,
and gave us power over thero which the
Constitution does not bestow, or define,
or limit. No fallacy can be more Irans
pnrcnt than ibis. Our viotorie* subjected
the insurgent* to legal obedience,
ot to the yoke of an arbitrary despot'
ism. When an absolute sovereign reduces
his rebellious subjects, he may
deal with them according to his pleasure,
because he had thai power before.
But when a limited monarch puts down
an it.surreclion, be must still govern according
to law. If an insurrection
should take place in one of our States
against the authority of the State Government,
and er.d in the overthrow of
those who planned it, would that take
away the rights of all the pecple of the
countries where it was favored by a
part cf a majority of the population ?
Could they, for such a reason, be wholly
outlawed and deprired of their representation
in the Legislature ! I have
always contended that the Government
of the United States was sovereign within
its constitutional spliore ; that it executed
its laws, like the Statos .themselves,
by applying its coercive power
directly ro individuals ; and that it could
put down insurrection with the same ef
feet as a State, and no other. The op*
posite doctrine i9 the worst heresy of
those who advocated secession, and cannot
be agreed to without admitting that
heresy to be right.
Invasion, insurrection, rebellion and
domestic violence were anticipated when
the Government was framed, and the
means of repelling and suppressing them
were wisely provided for in the Const!*
tution ; but it was not thought necessa
ry to declare that the States in which
they might occur shou Id bcexpelled from
the Union. Rebellions, which were invaiiably
suppressed, occurcd piior to
that out of which those questions grow ;
but the States continued to exi-t and
the Union lemained unbroken. In Massachusetts
in Pennsylvania, in Rhode
Island, and in New York, at different
peiiods in our history, violent and armed
opposition to the United States was
carried on ; but the relations of those
States with the Federal Government
were not supposed to be interrupted or
changed thereby, after the rebellious
portions of their population were defeated
and put down. It is true that in
these earlier cases there was no formal
expression of a determination to withdraw
from the Union,but it is also true
that in the Southern Slates the ordinances
of secession were treated by all the
fiiends of the Union as mere nullities,
and are now acknol wedged to be so by the
States themselves. If we adroit that
they had any force or validity, or that
they did in fact take the Slates in which
they were passed out of the Union, we
sweep from under our feet all the
grounds upon which wo stand in justis
tying the use of Federal foice to maintain
the integrity of the Government.
, This is a liill passed by Congress in
lime of peace. There is not in anv one
of the States brought under its opera- j
lion either war or insurrection. The
laws of the Stales and of the Federal
Government are all in undisturbed and
harmonious operation. Tbo Courts,
State and Federal are open, and in the
full exercise of their proper authority.
Over every State comprised in these five
military districts, life, liberty and property
are secured by State laws and Federal
laws, and the national Constitution is in
force and is every where obeyed. What,
then, is the ground on which this Bill pro
ceeds ! The title of the Bill announces
that it i? intended '"for the more efficient
government" of these ten States. It is re
cited by way of preamble that no legal
Slate Governments, " nor adequate protection
for life or property," exist in
those States, and that peace and good
order should be thus enforced. The
first thing which arrests attention upon
these recitals, which prepare the way for
martail law, is this-sthat the only foundation
upon which martial law can exist
uqder our form of government is not
stated or so much as pretended. Actual
war, foreign invasion, domestic insurrection?none
of these appoar; and
none of these, ir. fact, exist. It is not
even recited that any sort of war or insurrection
is threatened. Let us pause
here to consider, upon this question of
constitutional law and the power of
Congress, a recent decision of the Su?.
preme Court of the United Slates in ex
parte Xiilligan.
I will first quote from the opinion of
the majority of the Court; " Martial
law cannot arise from a threatened in
vasion. The necessity must be actual
and present, the invasion real, such as
effectually closes the courts and depose
the civil administration." We see that
martial law cornea in only when actual
war closes the courts and deposes the
civil authority ; but this Itill, in time of
peace, makes martial law 'operate as
though we were in actual war, and becomes
the cause, instead of the eonsequeue?
of the abrogation of civil authority.
One more quotation : " It follows
from what hat bven said on ibis subject
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EVENTS
67.
that there are occasions when martial
law can be properly applied. If in foreign
invasion or civil war the oourts are
actually closed, and it is impossible to
ftmilii*t*r criminal iitaftca awnnlinn lr%
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law, then, on the theatre of active military
operations, where war really pierails,
there is a necessity to furnish a
substitute for the civil authority, thus
overthrown, to preserve the safety of
the army and society ; ard as no power
is left but the military, it is allowed to
govern by martial rule until the laws
cau have their free course."
1 now quote from the opinion of the authority
of the Court, delivered by Chief
Justice Chaso : " We by no means as^
sert that Congress can establish and apply
the laws of war 'where no war has
been declared or exists. Where pence
exists, the laws of peace must prevail."
This is sufficiently explicit. Peace exists
ir. all the territory to which this Bill
applies. It asserts a power in Congress,
in time of peace, to sot aside the laws of
peace and substitute the laws of war.?
The minority, concurring with the majority,
declare that Congress does not
possess that power. Again, and, if
possible, more emphatically, the Chief
Justice, with remarkable clearness and
condensation, sums up the whole matter
as follows ;
" There are under the Constitution
three kinds of military jurisdiction?one
to be exercised both in peace and war;
another to be exercised in time of foreign
war without the boundaries of the
United States, or in time of a rebellion
and civil war within Stales or districts '
occupied by rebels treated as belligorents;
and a third to be exercised in
time of invasion or insurrection within
he limits of the United States, or dur
ing rebellion within in the limits of the
Stales maintaining adhesion to the National
Government, when the public
danger reauires its exercise. The first
of these may he called jurisdiction under
Military Law, and is found in
Acts of Congress prescribing rules and
articles of war, or otherwise providing
for the government of the national forces;
the second may be distinguished as
Military Govkiinmknt, superseding,
as far as may be deemed expedient, the
local law, and exercised by the military
commander under the direction of the
President, with the express or implied
sanction of Congress ; while the third
may be denominated Martial Law
Piiopku, and is called into action by
Congress, or temporarily, when the action
ol Congress cannot be invited, and
in the case of justifying or excusing peril,
by the President, in times of insurrection
or invasion or of civil or foreign
war, within districts or localities where
ordinary law no longer adequately secures
public safety and private rights,"
It will be observed that of the three
kinds of military jurisdiction which can
be exercised or created under our Constitution,
there is but one that can provail
in time of peace, and that is the
code of laws enacted by Congress for the
government of the national forces ?
That body of military law has no appli
cation to the citizens, uor even to the
citizen soldier enroled in the militia in
time of peace. Put this Hill is not a
part of that sort of military law, for that
applies only to the soldier and not to ;
the citizen, whilst, contrariwise, the mil
ilary law provided by ibis Bill applies
onlv to the citizen and not to tho sol*,
dier.
I need not say to the Reprecentat;ves
!.? a : 1- ,i .? -j
vi mo iiiiiuriciiu peopio iiihi ineir vonstitution
forbids tho excrctso of judical
power in any way but one?lhai is by
tho ordained and established courts. It
is equally well known that in all criminal
cases a trial by jury is made indispensable
by the express words of that
instrument. 1 will not enlarge on the
inestimable value of the right thus secured
to every freeman, or speak of the
danger to the public liberty in all parts
of the country which must ensue from
a denial of it anywhere or upon any
pretence. A very recent decision of tho
Supreme Court has traced history, vin- |
dicated the dignity, and made known
the value of this great privilege so clearly
that nothing more is needed. To
what extent a violation of it might be 1
excused in time of war or public danger
may admit of discussion, but we are j
providing now for a time of profound
peace, where there is not an armed soldier
witbiu our borders except those who
are in tho service ol the Government.?
It is in such a condition of things that
an Act of Congress is proposed which,
it carried out, would deny a trial by the
lawful Courts and juries to nine u illions
of Amoriean eitizena nn/t In itinir r\r\a _ I
-- - -i " rv?
terilv for an indefinite period. It seems
to Ire scarcely possible that any one
should seriously believe this consistent
with a Constitution which declares, in
simple, plain, and unambiguous language,
that all persons shall have that
right, and that no persons shall ever in
any oase be deprived of it. The Constitution
also forbids the arrest of the
citizen without judicial warrant, founded
on probable can*). This Hill author,
izes an arrest without warrant, at the
pleasure of a military commander. The
Constitution declares that " no person
shall bo held to answer for a capital or
NO. 42.
otherwise infamous crime unlets on pre
sentraent by a grand jury." The Bin
hold* every person, not a soldier, an
nvkciable fur all crimes and all charges
without any presentment. The Constitution
declares that " no person shall be
deprived of life, liberty, or property
without due process of law." This Bill
sets aside all process of law mnA m.U
ihe citizen answerable in hit person and
property to the will of one man, and as
to his life to the will of two. Finally,
the Constitution declares that " the
privilege of the writ of habeas corpus
shall not be suspended unless when, in
case of rebellion or invasion, the public
safety may require itwhereas this Bill
declares martial law (which of itself suspends
this great writ) in time of peacei,
and authorizes the military to make the
arrest, and gives to the prisoner only
one privilege, and that is a trial M without
unnecessary delay." He has no
hope of release from custody, except the
hope, such as ills, of release by acquital
before a military commission.
The United States are bound to guarantee
to each State a republican form
of government. Can it be pretended
that this obligation is not palpably broken
if we carry out a measure like this,
which wipes away every vestige of republican
government In ten States, and
puts the life, property, liberty and honor
of all the people in each of them under
the domination of a single person
clothed with unlimited authority f
The Parliament of England, exercising
the omnipotent power which it
claimed, was accustomed to pass Bills
of Attainder ; that is to sav, it would
convict men of treason snd other Crimea
by legislative enactment. The person
accused had a hearing; sometimes a
patient and fair one; but generally parly
prejudice prevailed, instead of justice.
It often became necessary for
Parliament to acknowledge its error and
reverse its own action. The fathers of
our country determined that no such
thing should occur here. They with
neid ttie power from Congress, and thus
forbade its exercise by that body ; and
tbey provide in the Constitution that
no State should pass any Bill of Attainder.
It is therefore impossible for any
person in this country to be constitutionally
convicted or punished for any
crime by a legislative proceeding of any
sort. Nevertheless, here is a Bill of
Attainder against nine millions of peo*
pie at once. It is based upon an accusation
so vague as to be scarcely intelligible,
and found to be trne upon no
credible evidence. Not one of the nine
millions was heard in his own defence.
The representatives of the doomed parties
were excluded from all participation
in the trial. The conviction Is to be
followed by the most ignominious punishment
ever inflicted on large masses
of men. It disfranchises them by hundreds
of thousands, and degrades them
all?even those who are admitted to be
guiltless?from the rank of freemen to
the condition of slaves.
The purpose and object of the Bill?
the general intent which pervades it
from beginning to end?is to change
the entire structure and character of the
State Governments, and to compel them
by force to the adoption of organic laws
and regulations which they are unwilling
to accept if left, to themselves. The
negroes have not asked for the privilege
of voting?the vast maj rrity of them
nave no uloa what it meant. This Bill
not only thrusts it into their hands, but
compels them, as well as the whites, to
use it in a particular way. If they do
not form a Constitution, with prescribed
articles in it, and afterwards elect a
Legislature which will act upon certain
measuros in a prescribed way, neither
blacks nor whites can bo relieved from
tho slavery which the Bill imposes upon
them. Without pausing here to
consider the policy of Africanizing the
Southern part of our territory, I would
simply ask the attention of Congress to
that manifest, well known and univer?
sally acknowledged rule of constitutional
I tw, which declares that the Federal
Government has no jurisdiction, authority
or power to regulate such subjects
for any Slate. To force the right of
suffrage out of the hands of the white
people and into the bands of the negroes
is an arbitrary violation of thia
This Hill imposes martial law af once,
and its operations will begin so soon as
the General and his troops can be put
in place. The dread alternative between
its har?h rule and compliance
with the terms of this measure is not
suspended, nor are the people afforded
any time for free deliberation. The Gill
says to them, take martial law first,
then deliberate. And when th6y have
done all that this measure require* tbem
to do, other conditions and contingencies,
over which they have no control,
yet remain to be fulfilled before tbey
can be relieved from martial law.
Another Congress must first approve
the constitutions made in conformity
with the will of this Congress, and most
declare these Slates entitled to representation
in both Ilousos. The whole
question thus remains open and unsettled,
and must again occupy the atten(.Ooncluded
on fourth page )