LITMIR.BIZ

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was never designed to meet such contingencies. To supply this deficiency a tribunal of very extensive powers, designated as “a court of record for the State of Louisiana,” was constituted by Executive order on October 20. Of this flexible institution Charles A. Peabody, of New York, a friend of Secretary Seward, was made provisional judge. Besides being empowered to select a prosecuting attorney, a marshal and a clerk, and to make rules for the exercise of his jurisdiction, he was authorized “to hear, try and determine all causes, civil and criminal, including causes in law, equity, revenue and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit Courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the Courts of the United States and Louisiana—his judgment to be final and conclusive.” These officers were to be paid out of the contingent fund of the War Department, and a copy of the Executive order, certified by the Secretary of War, was “held to be a sufficient commission” for the Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

      While the cases of Messrs. Hahn and Flanders were pending the edict of freedom had gone forth, for the President, as announced in his preliminary proclamation of September 22, had declared, January 1, 1863, “as a fit and necessary war measure,” that “all persons held as slaves within said designated States and parts of States, are and henceforward shall be free.”^[68] Louisiana was

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