Aside from the abstract question of justice, there is nothing so intimately connected with the consideration of measures for the protection and improvement of American freedmen as the question, antecedent to all plans or details, whether the act or acts whereby these men were declared free are or are not absolutely legal and irrevocable. If their civil right to personal freedom is not well founded and forever secured, then all practical measures based upon that right are unavailing and nugatory. Upon their condition, before the law, must all plans for their welfare be predicated.
Their legal status is, therefore, the primary question. And if it should appear that there are any circumstances which endanger the validity or the permanency of the freedom thus proclaimed, a proper treatment of the subject requires that these circumstances should be examined with a view, if need be, to their removal.
Seldom, throughout all history, has there been presented to any nation, for its decision, a question of import more vast than this. Its solution involves not alone the social destiny of 3,000,000 or 4,000,000 of human beings, but also the permanent peace and the national honor of one of the great powers of the world. It allies itself also, in an especial manner, to the progress of civilization.
The events of the last three years have radically changed the legal aspect of this subject. Questions once purely constitutional have now become complicated with questions of international law.
A member of the commonwealth of christendom, our Republic is bound by the acknowledged rules of that unwritten code governing the society of civilized nations, of which the foundation and the sufficient authority is the common consent and usage of that society. We are as much bound by its rules as we are by the provisions of our Federal Constitution. In proportion as civilization advanced "it became," says Sir James Mackintosh, "almost as essential that Europe should have a precise and comprehensive code of the law of nations as that each country should have a system of municipal law.
Engaged in war, we must conform to the law of nations, so far as that law regulates public rights and duties during war. We must take from it, for example, the extent of our rights as regards enemies' property and the limitations of these rights.
In interpreting the international code, however, it behooves us to bear in mind that as its office is to foster civilization in peace and to mitigate suffering and repress outrage in war, the sentiment of christendom, taking practical form, has been gradually molding its rules from the more to the less severe. Thus, among the Romans the rule that renders enemies' property liable to confiscation was so harshly enforced that it was made to apply to subjects of the enemy who, at the breaking out of war, happened, innocently and by the accident of travel or temporary commerce, to be residing among them. But Grotius and Vattel argue that as these foreigners entered the country under the sanction of public faith, the government which permitted this tacitly contracted that they should be protected while there and allowed a reasonable time to return, taking with them their movable effects. And this practice, from its evident justice, has now superseded the stricter enforcement of the rule.
Beyond all doubt, as a nation holding itself second to no other in its desire to aid the cause of humanity and civilization, our practice in war ought to conform to the milder and more enlightened phase of sentiment sanctioned by modern publicists. But in so doing it behooves us to see to it that the scruples of moderation do not degenerate into weakness, defeating their own object and protracting the term of a war which is a disgrace to the age if it be not regarded as God's agency for a great purpose. We are guilty of culpable negligence if we fail to employ all the means which are legally and properly within our reach to bring to a close, at the earliest practicable day, the struggle which now desolates and depopulates our land. There is no just war which has not for its object (on a rightful basis, it is true) the speedy restoration of peace.
In pursuing that object as the legal phrase is, viā facti.--in other words, by the compulsory means of war--injury must be inflicted on the enemy. States, being in the nature of vast corporations, are not, indeed, liable to punishment, but acts resembling punishment, though in fact but measures of self-defense, become necessary, if we resort to war at all. "It is to be remembered," says an able modern commentator on international law, "that as the will of the subject is bound up in that of his government, it may well be that the consequences of the conduct of his rulers may be attended with injury both to the person and property of the subject, and that the enemy is justified in striking through them at the government from which he has received a wrong, for which redress has been denied. "
The just limit in this case is set forth by Montesquieu: "Nations," says he, "owe to each other, in peace, the greatest amount of good, and in war the least amount of evil, that is compatible with their true interests."
Guided by these general considerations the Commission proceed to examine the question of emancipation, legally considered.
In so doing it may simplify the matter if we offer a few preliminary observations on the--
SECTION 1.--Constitutional aspect of what is called slave property.
There has been radical diversity of views on this subject. Extreme opinions on either side have been confidently urged, one party alleging that the Federal Constitution admitted and sanctioned property in human beings, another that its very preamble utterly excluded that idea, and that none of its provisions recognized, or could recognize, in any sense a social institution that is contrary alike to law and to morality.
We cannot reach clear ideas of the constitutionality of emancipation under any circumstances until we settle in advance under what phase and to what extent the social relation known as slavery is recognized (if it be recognized) by the Constitution of the United States. And throughout the prosecution of such an inquiry it behooves us to bear in mind the great fundamental ideas of human liberty and natural rights, to give legal force to which that instrument was originally framed. It behooves us, further, to keep in view a well-established legal principle, founded on justice and identified with civilization, laid down by the Supreme Court of the United States in these words:
Where fights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, a legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.
The constitutional provision regarding the slave-trade, cautious in its phraseology, was temporary only, ceasing to operate after the year 1808, and need not therefore be considered.
There are but two other provisions remaining that bear on this subject, familiar to all, for they have been the theme of a hundred excited discussions, one contained in the fourth article and second section of the Constitution, being in these words:
No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
The claims to service or labor here referred to may be for years or for life; both are included in the above provisions. In point of fact, there were existing at the time that provision was adopted (as there still exist) both classes, the first class for a term of years then consisting in part of claims against foreign adults who had-bound themselves to service for a limited time to repay the expenses of their emigration, but chiefly, as now, of claims to the service or labor of what were called apprentices, usually white minors; the second, for life, were claims to the service or labor of men, women, and children of all ages, exclusively of African descent, who were called slaves.
The first class of claims were found chiefly in Northern States; the second chiefly in Southern. There was a great disparity between the numbers of the two classes. While the claims to service or labor for years numbered but a few thousands, there were then held to service or labor for life 500,000 or 600,000 persons, and the number has since increased to about 4,000,000.
The constitutional provision is, that persons from whom, under the laws of any one State, service or labor is due, shall not be exonerated from the performance of the same by the laws of any other State to which they may escape. The apprentice or the slave shall, in that case, on demand of the proper claimant, be delivered up.
Such a provision involves the recognition of certain rights of property; but of what kind?
Is the ownership of one human being by another here involved? Is the apprentice or the slave recognized in this clause as an article of merchandise?
State laws, regulating apprenticeship and slavery, may give to the master of the apprentice, or of the slave, the custody of the person, and the right of corporal punishment, in order the better to insure the performance of the labor due. These laws may declare that an apprentice, or a slave, who strikes his master shall suffer death. They may provide that the testimony of an apprentice, or of a slave, shall not be received in any court of justice as evidence against his master. They may make the claims to service or labor, whether for years or for life, transferable by ordinary sale. They may declare such claims to be, under certain circumstances, of the nature of real estate. They may enact that these claims shall be hereditary, both as regards the claimant and the person held to service, so that heirs shall inherit them--and, also, so that the children of apprentices, or of slaves, shall, in virtue of their birth be apprentices or slaves.' They may deny to the slave, or to the apprentice, during the term of slavery or of apprenticeship, legal marriage, education, the ownership of property, real and personal. But State laws and State constitutions, whatever their varying provisions, cannot modify or affect, expressly or by implication, the Constitution of the United States. They have no power, direct or indirect, over it. It controls them. The Supreme Court has decided that "the Government of the Union, though limited in its power, is supreme within its sphere of action;" and again, paraphrasing the Constitution itself, that "the laws of the United States, when made in pursuance of the Constitution, form the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."
Therefore, no State action can add to or take from the Constitution of the United States. Therefore, State laws and State constitutions, valid within their own municipal jurisdiction, are without force within the proper sphere of Federal authority. They can neither determine the interpretation of the Federal Constitution, nor serve as commentary or explanation of its intent. It is an authority superior to theirs, and it is to be interpreted by the words, fairly and candidly construed, of its framers.
These words deny to any State the right either to pass laws or regulations discharging from service or labor inhabitants of another State held to such service, who may have escaped therefrom, or to refuse to the proper claimant of such service the surrender of the fugitive by whom it is due. They do this--they do nothing more. And this denial of the right on the part of any State of the Union to defeat certain claims to labor held by citizens of another is a protection afforded to all claims for labor alike; to that of the master seeking a white apprentice, and to that of the master seeking a negro slave.
There is an evident intention, so far as words can mark intention, to go no further. There is an evident intention to refrain from any expression that might be construed into an acknowledgment of slavery as a social institution. Nothing could be more notorious than the fact of its existence as such in many of the States then about to be united in one Federal Union. But the responsibility of that existence is studiously left to the States who permit it. It is acknowledged as a fact, not sanctioned. If, while it exists, it is protected in one of the incidents which belong alike to it and to apprenticeship, the reason is to be found in the necessity of the case. It is evidently with no other intent than to avert angry conflicts between State and State that an individual State is not permitted to release from involuntary labor any person who, by the municipal rule of another State, is subjected to it.
This view of the case is fully borne out by the remarkable phraseology of the provision under consideration. The word slave, though then universally used to designate a negro held to service or labor for life, is not employed. We know, from the debates in the convention which framed the Constitution, that this peculiarity was not accidental; nor can we overlook the inevitable inference from it. This provision does not recognize slavery, except as it recognizes apprenticeship. African slavery, according to the expressly selected words, and therefore according to the manifest intent of the framers of the Constitution, is here recognized as a claim to the service or labor of a negro; nothing more, nothing else.
It avails nothing to allege, even if it were true, that in 1787, when these words were written, a negro was commonly considered property. Chief Justice Taney, delivering the decision of the Supreme Court in the Dred Scott case, asserts that in the thirteen colonies which formed the Constitution "a negro of the African race was regarded as an article of property." If the opinion expressed on this subject by a large majority of those who sat in deliberation in the various States on the adoption of the Federal Constitution, as recorded by Elliot, a is to be received, as it properly may be, in evidence to prove the probable opinions of their constituents on this subject, then has the chief justice's assertion no foundation in truth. But true or not, it has no legitimate bearing on the argument. Let the facts as to popular opinions in revolutionary days be as they may, they are but the opinions of individual colonists; and these cannot be received as a basis of construction for the words, nor can they rebut the plain intent of a constitutional provision. It is not what individual colonists believed, but what the framers of the Constitution incorporated in that instrument, that we have to deal with.
They avoided the use of the word slave. They incorporated the words "person held to service or labor." They admitted the existence, under State laws, of the claim to service or labor--none other;
(a) In evidence that this statement is correct, the Commission submit, among the documents accompanying this report, a carefully prepared abstract of the opinions on slavery, favorable and unfavorable, expressed in the various State conventions during the debates on the adoption of the U. S. Constitution. [Abstract omitted.]
a claim (regarded in its constitutional aspect) in the nature of what the law calls a chose in action--or, in other words, a species of debt--a thing to which, though it cannot be strictly said to be in actual possession, one has a right.
In common parlance we employ words, in connection with slavery, which imply much more than such a claim. We say slave-holder and slave-owner; we speak of the institution of slavery; but we do not say apprentice-holder or apprentice-owner, nor do we speak of the institution of apprenticeship. The reason, whether valid or invalid, for such variance of phraseology in speaking of the two classes of claims is not to be found in any admission, express or implied, in the provision of the Constitution now under consideration. The framers of that instrument employed one and the same phrase to designate the master of the apprentice and the master of the slave. Both are termed "the party to whom service or labor may be due."
The employment, of the popular phraseology referred to, indicating social disabilities and a subjection of one race to another, which originated in local legislation alone, has had a tendency to mislead public opinion as to the actual connection between slavery and the Federal Constitution. The mass of our people had come to think, at last, not only that the claim to labor was recognized, and was protected in cases where the denial of that claim might have led to a dangerous conflict of authority between States, which was true, but also that the framers of the Federal Constitution, straying off from the landmarks set up by the Declaration of Independence, had recognized as just, and had pledged the Nation to defend against all comers, a social institution under which one human being became the chattel of another, which was false.
If we were to regard the Constitution as indorsing slavery in all its changing phases, shaped by successive State laws and institutions as these phases have been, whither might not the doctrine have led us? Amongst the ancient Romans the master had the power of life and death over his slave. Let us suppose that South Carolina had enacted, as she might have enacted, a statute granting to her slave-holders this terrible power. Is the Federal Constitution, because of such statute, to be understood as recognizing the doctrine that murder is no crime if perpetrated on the person of a negro held to labor? Instinctively we reject an inference so monstrous that we must have lost all respect for the best men of the revolutionary period before we could adopt it.
The second and only other provision of the Constitution which refers to slaves (article I, section 2) remains to be considered, in these words:
Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.
To avoid mistakes, it was deemed necessary to include apprentices by express specification. Why this? Every one would have felt it to be absurd if the words had been, "the whole number of free persons, including farm laborers." But why absurd? Because persons engaged in free labor are, beyond question, free persons. Not so those "bound to service." While so bound, apprentices may be considered not free; when the "term of years," and with it the bondage to service, expires, they become free, or, as the common phrase is, "their own masters." It was necessary and proper, therefore, to specify whether, in the enumeration of inhabitants, they were to be estimated as free persons or as persons not free.
But would there be any fairness in construing this clause into an admission, by inference or otherwise, that an apprentice while "bound to service" is a slave? Clearly not. He is a person not free for the time, because another has a legal claim to his service or labor. The Constitution admits this; nothing more.
And so of slaves. "Other persons" they are called in contradistinction to "free persons," therefore persons not free; and properly so called, seeing that, like the apprentice before his term expires, they are "bound to service," and that, unlike him,.they remain thus bound for life.
But unless we admit that the apprentice, bound to service for a season, is a slave during that season, we cannot justly allege that, by this provision of the Constitution, the negro, held to service or labor for life, is recognized as a slave.
A mere technical view of a great political question is usually a contracted one, of little practical value, and unbecoming a statesman. "The letter killeth, but the spirit giveth life." Yet we must not mistake for technicality a careful interpretation, distinctly warranted by the terms employed, of a public instrument. Every public instrument by which the governed delegate powers to those who govern should be strictly construed.
We know very well that the men who framed the Constitution regarded a negro held to service or labor not, indeed (to speak of the majority of opinions), as a chattel, but as a slave. It would be absurd to argue that temporary claims to the number (let us suppose) of 30,000 or 40,000 may for a moment compare in importance with lifelong claims to the number of 4,000,000. The first are of comparatively trifling moment, have never molded or greatly influenced society among us, and might drop out of our social system without serious disturbance. The latter constitute a system that has roots deep struck in the social structure of half our country; that involves vast industrial interests; that has gradually obtained influence so great and assumed proportions so gigantic as to become a political element overshadowing and controlling. It cannot properly be dealt with except after the gravest deliberation and the most sedulous examination, in advance, of every step we propose to take. It cannot be eradicated without producing disturbances such as convulse a nation.
But it is none the less true that neither the number of slaves nor the magnitude of the interests involved can properly influence the judgment in determining the just construction of a clause in the Constitution, or properly set aside a fair deduction from the wording of that clause as to its true spirit and intent. It is none the less true that the framers of the Constitution, in studiously avoiding the employment of the word slave, undeniably abstained from admitting into that instrument anything which the use of that word might have implied. Therefore, the Constitution does not recognize the ownership of one human being in another. In it we seek in vain any foundation for the doctrine declared by Chief Justice Taney, that persons held to service or labor for life are articles of property or merchandise.
In one restricted sense, and only in one, is slavery recognized by the Constitution of the United States--as a system under which one man, according to State laws, may have a legal claim to the labor of another.
It follows that the question whether the Federal Government has the right, under any circumstances, to emancipate slaves is more simply and more distinctly stated when put in these words: Has the Federal Government the right, under any circumstances, to take and cancel claims to the service or labor of persons of African descent held, under State laws, in certain portions of the United States?
If there are circumstances and conditions under which such claims can be legally taken and disposed of by the Government, then, under these circumstances and conditions, emancipation is constitutional. If there are none such, it is unconstitutional.
This opens up the next branch of our inquiry; and as we are at war with one portion of the slave States and at peace with another portion, the question subdivides itself accordingly; for the rules as to property of an enemy during war differ entirely from those which regard the property of peaceful citizens.
Let us, then, first examine
The constitutionality of emancipation in the insurrectionary States.
Has the Federal Government the right to take and cancel claims to service or labor held by inhabitants of the insurrectionary States?
An antecedent question is: Are these inhabitants, without distinction as to individual loyalty or disloyalty, and because of their residence within a given territory, enemies of the United States?
Vattel has treated as fully and as humanely as any other writer on international law of the rules of that law so far as they apply to civil war. He says:
When, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. * * * A civil war breaks the bands of society and government; or, at least, suspends their force and effect. It produces in the nation two distinct parties who consider each other as enemies. * * * These parties stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.
In accordance with these views the Supreme Court has decided that because of the present insurrection there exists civil war. The opinion of the court, delivered in March of last year, is as follows:
When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.
When one nation is engaged in war against another, all the inhabitants of the latter, without regard to their opinions as to the justice of the war on the part of their own government, become enemies of the former. If Great Britain, siding with the South, were to declare war against us, John Bright, though he might retain the same friendly sentiments which he now entertains toward this country, would be, in law, the enemy of the United States. Vattel sets forth this principle in the plainest and most explicit terms:
When the sovereign or ruler of t he State declares war against another sovereign, it is understood that the whole nation declares war against another nation. Hence these two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other.
Strictly in accordance with the above the Supreme Court has given its opinion in the case already referred to. After reciting that the territory "held in hostility to the United States" has a "defined boundary," which can be crossed only by force, the court adds:
All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are, in this contest, liable to be treated as enemies. * * * Whether property be liable to capture as enemies' property does not, in any manner, depend upon the personal allegiance of the owner.
According to this decision, property of every kind held by residents of the insurrectionary States, no matter what their personal sentiments or political proclivities may be, is enemies' property. It becomes such in virtue of the domicile of the owner, and of the fact that it "may be used to increase the revenues of the hostile power."
It follows that so much of the law of nations as relates to the right of a belligerent to take or destroy the property of an enemy applies in this case to the property of every inhabitant of the insurrectionary States, without regard to his individual loyalty or disloyalty.
What are the rules of international law which bear upon this matter? Grotius lays down the principle on the broadest ground. He says:
Moreover, by the law of nations, not only he who carries on war for just cause, but also any one engaged in solemn war, becomes the absolute and unconditional owner of all property taken from the enemy; so that both he and whoever claims under him are to be protected in possession of the same.
Vattel is quite as explicit. He says:
We have a right to deprive our enemy of his possessions, of everything which may augment his strength and enable him to make war. This every one endeavors to accomplish in the manner most suitable to him. Whenever we have an opportunity we seize on the enemy's property and convert it to our own use; and thus, besides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent, either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution.
The Supreme Court, in the case already cited, indorses this well-known principle of international law:
The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war.
These authorities settle the question as to the legality of one enemy taking or destroying the personal property of another.
In a general way, however, a belligerent does not become the legal owner of any personal property belonging to his enemy so long as it is still in that enemy's hands. To obtain a right to it he must reduce it to possession. "Owner of all property taken from the enemy," says Grotius. "We seize on the enemy's property and convert it to our own use," says Vattel. The Supreme Court employs a similar phrase, authorizing "the seizure or destruction of enemies' property." Until we seize the horses on which the enemy has mounted his cavalry, or the muskets which he has placed in the hands of his soldiers, they are not ours. As to tangible property, such as horses and muskets, we must capture before we own.
When we propose to take and cancel enemies' claims to service--in other words, to emancipate the slaves of our enemies--does the rule hold good? Must we obtain possession of the persons of these slaves before we can declare them to be free of their bondage?
In this case the question is not of seizing and destroying tangible property belonging to the enemy. Even if a slave were an article of merchandise, we do not propose to ourselves the possession and destruction of that article. If we did, it could not be ours to possess until we captured it, nor to destroy until the laws against murder were repealed.
The property with which we propose to deal, and of which we seek to deprive our enemies, is property of a character very different to that of property in horses or muskets. It consists of a right or claim; the only right over a slave by a master which is recognized in the Constitution--the claim to that slave's service or labor.
This is, strictly speaking, a species of property in the nature of a demand, to be satisfied in the future. It is a debt of a peculiar nature, it is true; not payable in money; not recoverable by suit in court; enforced by physical means; but still essentially a debt. Service or labor is due. It is, indeed, an involuntary debt, not growing out of contract between debtor and creditor, but yet as binding as State laws can make it; as practically binding, within the State which enacted these laws, as the debt an artisan might contract, if he gave, in payment of property bought, his promissory note for so many months' labor. It is a debt due by an inhabitant of the United States to an enemy of the United States.(a)
Property of this description, being of an intangible character, cannot be physically seized or destroyed. It is evident, therefore, that the usual rule that the seizure, by physical force, of enemies' property must precede our ownership of the same, can have no practical application in this case.
But debts can be confiscated, and after being confiscated they can be canceled so that the debtor shall be forever free of the same. Nor is there in the international code any rule or law to the effect
(a) The question is not moored here whether, because of the existing civil war, slaves held within the insurrectionary States are, in law, enemies or not. We have seen that the principle on which the inhabitants of the insurrectionary States, without reference to personal loyalty, are held to be enemies is, first, because of their domicile; and secondly, because their property may be used to increase the revenue of the hostile power. But slaves are persons acting under duress; they have no voluntary domicile, and cannot legally hold any property, real or personal.
In any event, though by international law the Government may rightfully hold all the inhabitants of the insurrectionary States as enemies, it is not compelled to hold them as such. It may undoubtedly waive its right as to the whole or any part of them.
The question is a new one that has never, probably, been decided by the courts. Its decision is immaterial to the present argument. A debt due to an enemy by any inhabitant of the United States, whether friend or enemy, may lawfully be confiscated.
that before such confiscation or canceling the person of the debtor shall be seized; or that the debt cannot be confiscated or canceled while the debtor is in the enemy's country. If there be legal authority to confiscate, that suffices.
Is there legal authority in this case? Has the Government of the United States, at war with the holders of these claims, the right to confiscate them?
Vattel, in defining what is to be considered as enemies' property liable to confiscation, says:
Among the things belonging to the enemy are likewise incorporeal things--all his rights, claims, and debts.
The expression is of the most comprehensive character--" all his rights, claims, and debts," embracing, beyond possible question, the claims or debts we have now under consideration. We shall search in vain for any special recognition of the right to confiscate that peculiar species of claim, seeing that neither common law nor international law recognizes the existence of human slavery or provides rules for its treatment during war. We can be governed, therefore, only by the general rule as to confiscation of claims or debts. But that is explicit and all-sufficient.
Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of "Amity Brown vs. the United States," said:
The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other property found within the country, the operation of a declaration of war on debts and on other property found within this country must be the same.
Justice Story, though dissenting from the opinion of the court in this case, concurs in the above principle. These are his words:
I take upon me to say that no jurist of reputation can be found who has denied the right of confiscation of enemies' debts.
There are no exceptions to this rule which apply to the case we are considering. It is true that by the modern and milder interpretation of the law of nations there are certain relaxations as to the power of confiscating the rights, claims, or debts of an enemy. For example, in the case of rights granted by a third party, to whom it is not a matter of indifference in whose hands they are vested. Nor is it any longer the law, though it used to be, that sums of money due by neutral nations to our enemy can be confiscated as other property. Nor are the debts of alien enemies contracted in the country during peace to be deemed confiscate solely in virtue of a declaration of war. But none of these exceptions, nor any others recognized by the law of nations, have reference to the present case, in which the question regards debts due to the enemy by the inhabitants of our own country. Such debts are, beyond all controversy, liable to confiscation.
It is to be conceded that the precise case, as it here presents itself, may be regarded as sni generis. A parallel case cannot probably be found in all history; a case in which during a civil war a question touching the confiscation and canceling of certain claims or debts due by one portion of the inhabitants of an insurrectionary district to another portion of the same rises to the grandeur of a great measure, involving not only the peace, but the national existence, of the power which proposes to confiscate. This could only occur when, as in the present instance, these claims constitute the basis of a vast labor system endangering domestic tranquillity and imperiling the national unity and life.
A case so unique might well be regarded as demanding the establishment of a precedent. The courts might well be called upon to decide it on the broad principle that whatever is essential to the preservation of the national life the Government may lawfully do; just as an individual, without imputation of murder, may take the life of an assailant, when such killing is necessary to save his own life. But it is satisfactory to reach the conclusion that the right to adopt this great measure of national self-defense can be justified even on technical grounds, as involving a confiscation never before exercised, perhaps, by a belligerent on so grand a scale, but in strict conformity to the law of nations in the premises.
It is, therefore, in every view of the subject, lawful to seize or confiscate and cancel that large class of enemies' debts known, in the language of the Constitution, as "claims to service and labor." It is lawful by the proper authority to confiscate these not only when the debtor is within our own lines, but in whatever portion of our country he may happen to be.
What is the proper authority in this case? By whom can these claims be legally canceled? Evidently by the same authority which may legally seize and appropriate any other property of the enemy. Primarily, then, by the sovereign or law-making power of the Government; and secondly, when the exigencies of war demand it, by the duly constituted military authority.
But the chief military authority of the United States is vested, by the Constitution, in the President:
The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.
The President, then, is a proper authority; not, indeed, as President, but as Commander-in-Chief. As such he has legal power, by himself or through his subordinate officers, to take and to destroy, or to use personal property belonging to the enemy. As such he is sole judge of the exigencies which render necessary such taking and such destruction or use.
In the exercise of this discretion he is not amenable under any provision of the Constitution. The Constitution in making him Commander-in-Chief neither designated nor restricted his powers as such, but it conferred upon him, by implication, all the powers appertaining, by the usage and law of nations, to that office. Strictly speaking, the only constitutional question which can be raised in this connection is as to whether the person so taking and destroying enemies' property was at the time legally Commander-in-Chief.
He is responsible for the manner of exercising this power under the law of nations; and, as the law of nations is to be construed in the interests of humanity and civilization, he is responsible in case his acts should outrage these great Christian principles. Humanity forbids us to lay waste a country, to sack towns and villages, to burn or pillage dwellings, to destroy public edifices not military. Humanity bids us respect the private property of non-combatant enemies, so far as this is compatible with the exigencies of war. If a commander-in-chief violate these rules, which civilization in its progress has dictated, it is an offense, not against the Constitution, but against international law. The legality of his acts may be called in question, not their constitutionality.
What was the manner in which the President, as Commander-in-Chief, took and canceled the claims to involuntary labor owned by inhabitants of the insurrectionary States?
On the 25th July, 1862, in pursuance of the sixth section of the act of July 17, 1862, commonly called the "confiscation act," the President issued a proclamation warning all the insurgents to return to their allegiance within sixty days, on pain of certain forfeitures and seizures.
This warning proving ineffectual, the President when the sixty days' notice had expired issued a second proclamation declaring that the slaves held within any State which, on the 1st of January then succeeding should still be in rebellion against the United States, "shall be then, thenceforth, and forever free."
On the 1st of January, 1863, "by virtue of the power in him vested as Commander-in-Chief of the Army and Navy of the United States," he declared certain States, namely, Arkansas, Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, Virginia--certain parishes in Louisiana and certain counties in Virginia excepted--to be then in rebellion against the United States; and he further declared that all slaves in the said ten States, with the exceptions aforesaid, "are, and henceforward shall be, free."
In the last-mentioned proclamation the President recites that it is issued "in time of actual armed rebellion against the authority and Government of the United States ;" and further, that emancipation is declared "as a fit and necessary war measure for suppressing said rebellion."
The number of claims to involuntary labor which this proclamation declared to be canceled was about 3,000,000. The forfeiture under the war power of so great an amount of property, the canceling of so vast a number of claims, disturbing, as it must, the social and commercial elements throughout a large and populous country, requires, for its justification, an object commensurate in grandeur with the magnitude of the measure itself.
What was that object?
"All that a man hath," we are told, "will he give for his life," and this is as true of nations as of individuals. No higher or greater object can be proposed to any people than the maintenance of its national unity, which is its national life.
At the time when the President as Commander-in-Chief issued his proclamation of emancipation the life of the Nation was imminently threatened.
A civil war, of proportions more gigantic than any which history records, had been raging in our country for more than a year and a half. The contending parties had put into the field upward of a million of combatants. We of the North had already expended, or contracted to expend, full a thousand millions of dollars. The war had been carried on with varying success; now the Federal arms triumphant, now the Confederate; Northern counsels were divided, and there was a loud clamor for peace, on terms the acceptance of which could but result in perpetual war. So far as foreign nations had declared themselves, either by official acts or by the expression of public opinion, it appeared to be rather in favor of the Southern insurgents than of the established Government. The contest had till then assumed no higher character than that of one portion of a great nation striving to secede from the main body of the same and establish a separate independence; and in an effort of that character, if no higher principle be involved, the sympathy of the world is usually with the weaker party.
In such a conjuncture the best and wisest among us saw before them a protracted war, a doubtful issue. The bravest confessed to themselves that we had need of all our resources, even to the uttermost, in order to avert the breaking up of the great American Union into such petty discordant sovereignties as are to be found in more southern portions of our hemisphere, into belligerent fragments, with the standing and influence, perhaps, of Venezuela or Costa Rica, of Nicaragua or Ecuador.
We had need of all our resources, even to the uttermost. Had we at that time employed them all? Had we not up to that time left in the hands of our enemies, with scarcely an effort to disturb it, one of the chief elements of their military strength? Nay, an element so overwhelmingly influential in its practical results that, according to its management against us or in our favor, might be the ultimate issue of the war--defeat if we neglected it, victory if we improved the opportunity? Let us look closely to this.
By the census of 1860 the number of white males between the ages of eighteen and forty-five is, in the loyal States, about 4,000,000; in the disloyal States about 1,300,000; let us say about three to one. The disparity seems great, but, as a basis of military strength, the calculation is wholly fallacious, for the disloyal States contained when the insurrection broke out 3,500,000 people who were not insurgents, who did not voluntarily assist in the rebellion, but who were compelled by force to render it most efficient aid.
Out of the above 4,000,000 the North had to provide soldiers and (with inconsiderable exceptions, not usually extending to field labor) laborers also.
Not so in the South. Her 1,300,000 had more than their own number to aid them, in military as well as agricultural labor. For as, among slaves, both sexes are employed from an early age to a late period of life in the field, the number of laborers out of 3,500,000 slaves may fairly be put at 2,000,000. Let us estimate 300,000 of these as employed in domestic service and other occupations followed by women among us, and we have 1,700,000 plantation hands, male and female, each one of whom counts against a Northern laborer on farm or in workshop, or a Northern soldier laboring on intrenchment or fortification, each one of whom, staying at home to labor, liberates a white man for active military duty in the field. To 1,300,000 add 1,700,000, and we have 3,000,000 as the total in the insurgent States of numerical force available in this war--that is, of soldiers to fight and laborers to support the nation while fighting. Then, supposing the negroes all loyal to their masters, or at least remaining to labor for them, the comparative military strength, so far as it is indicated by population, was as four in the North to three in the South.
If we take into account the fact that ours were the invading and attacking forces, while the insurgents had the advantage of acting upon their own territory, near to their supplies, with short inside lines of communication, and on the defensive, it need not surprise us that after the lapse of a year and eight months of unintermitting war the scale still remained in the balance, neither side yet hopelessly depressed.
Under such a condition of national affairs, when there is question of claims held by the enemy, upon which rests his power to supply his armies with the necessaries of life, we must go much further than to inquire whether the Commander-in-Chief has the right to take and declare forfeited these claims. The true and fit question is, whether, without a flagrant violation of official duty, he has the right to refrain from taking them.
"You have no oath," our present Chief Magistrate said, addressing, in his inaugural, the insurgents already in arms against lawful authority, "You have no oath registered in Heaven to destroy this Government, while I have the most solemn one to preserve, protect, and defend it."
Can we suppose a grosser violation of that solemn oath than would have been the failure to employ the appropriate means, sanctioned by the law of nations, gradually to withdraw from the enemy half of his military strength? Has a President done his best to preserve the Government, to protect the people, until he shall have done this? Charged with the lives of millions, with the putting down of a gigantic rebellion, and the restoring of tranquillity to the land, what right had our Commander-in-Chief, in the hour of utmost need, to scorn a vast element of war strength placed within his reach and at his disposal? And if he had refused to avail himself of such an element would he not have been righteously held responsible for the hopes he blighted and the lives he cast away?(a)
Under such a state of things it was eminently and imperatively the duty of the President, "as a fit and necessary war measure for suppressing
(a) In this argument we have confined ourselves, in terms, to the proclamation of the President as authority sufficient to make emancipation in the insurrectionary States legal and irrevocable. The argument, however, is equally applicable to the acts of Congress on this subject, which acts have, besides, other grounds of validity unnecessary here to recite.
The chief provision by Congress is contained in the ninth section of the act of July 17, 1862, commonly called the "confiscation act," as follows:
"That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the Army; and all slaves captured from such persons or deserted by them and coming under the control of the Government of the United States; and all slaves of such persons found or being within any place occupied by rebel forces and afterward occupied by forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves."
By the decision of the Supreme Court, already cited, all the inhabitants of the insurrectionary States are, in law, persons "engaged in rebellion." Therefore all refugee slaves from insurrectionary States are by this statute declared free.
Further, as all the insurrectionary States have been "occupied by rebel forces," and, as we may reasonably conclude, that if we prevail against the South, all these States not already" occupied by forces of the United States," will hereafter be so occupied, it follows that, by the operation of this law, all the slaves in the insurrectionary States, even if no emancipation proclamation had ever been issued, would, before the end of the war, have probably been entitled to freedom.
Strictly in the spirit of the above statute, and going only so far beyond it as to declare slaves in portions of the insurrectionary States not yet "occupied by forces of the United States" to be free in advance of such occupation, was the President's action in the premises.
the rebellion," to declare free all the slaves held by the enemy in the insurrectionary States, not merely to emancipate those among them who might succeed in making their escape and coming within our military lines. The important and legitimate object was to present to those still held in duress a strong and proper motive for severing all connection with the insurgents, for abstaining from giving aid and comfort to the insurrection, and for seeking refuge from the superior force which compelled them to give such aid and comfort, by fleeing to that portion of the country where lawful authority prevailed.
Another great principle is involved. Every publicist of repute has set forth (what common sense suggests) as among the most important of national rights and duties, the rule that a nation, especially a nation engaged in war, ought to protect itself not only against immediate but against prospective dangers. Deriving all rights attendant on conquest "from justifiable self-defense," Vattel says:
When the conqueror has subdued a hostile nation he may, if prudence so require, render her incapable of doing mischief with the same ease in future. * * * If the safety of the state lies at stake, our precaution and foresight cannot be extended too far. Must we delay to avert our ruin till it has become inevitable? * * * An injury gives a right to provide for our future safety by depriving the unjust aggressor of the means of injuring us.
If, then, any of our enemy's possessions have been the special agency by which he has been enabled to injure us; if such possessions will still afford him the means to "do us mischief with the same ease in the future;" if thereby "the safety of the state lies at stake," is it not an imperative duty to extend our precaution and foresight into coming years? Are we not bound by every consideration of enlightened statesmanship to "deprive our unjust aggressor of the means of injuring us" hereafter.
The case has not yet been fully stated. Not only have these possessions, in our enemies' hands, been the very sinews of war, but they were the original cause of the insurrection itself. The insurgents themselves, who best know their own motives, tell us this. One of the most honest and intelligent among them, selected as their Vice-President, Alexander H. Stephens, speaking for them before a vast audience at Savannah, a few days after his election, publicly said:
Negro slavery was the immediate cause of the late rupture and present revolution. Jefferson, in his forecast, had anticipated this as the rock upon which the old Union would split.
These possessions caused the rebellion. Shall they remain in the hands of the insurgents to cause another? Can they remain in such hands without a certainty of that very result? In other words, can we reconstruct the Republic half free and half slave, yet preserve, under the operation of these conflicting labor systems, permanent peace? Let us take a practical view of this.
Alexander H. Stephens, adverting, in the address already quoted from, to slavery as having been regarded by the leading revolutionary statesmen to be "wrong in principle, socially, morally, and politically," says: "This stone, which was rejected by the first builders, is become the chief stone of the corner in our new edifice." And he adds: "Slavery is the natural and moral (normal?) condition of the negro. This our new government is the first in the history of the world based upon this great physical, philosophical, and moral truth."
This is the creed, self-expounded by its advocates, professed by the Southern slave-holder. Concede its truth, and South Carolina's declaration of independence is a document stamped with forecast and entitled to commendation. Whoever drafted it ran out his premises to their logical results. The convention that adopted it saw their way before them, and did not, like their weak sympathizers in the North, expect incompatibilities.
Having set up their "great philosophical truth," the corner stone of their political system, they saw clearly that they must insure it respect; that they must protect it from attack or condemnation; and they perceived that this could not be done if they maintained fellowship with the North. "The non-slaveholding States," they declare, "have denounced as sinful the institution of slavery." This from citizens of the same Republic they cannot permit; nor, except by secession from the non-slaveholding States, can they prevent it. "All hope of remedy "--thus their declaration concludes--" all hope of remedy is rendered vain by the fact that public opinion at the North has invested a great political error with the sanctions of a more erroneous religious belief."
Wise in their generation are South Carolina and the States that followed her lead. Building their system of government upon (a) "great philosophical and moral truth," which (unfortunately, they will say) the rest of the civilized world still regards as a flagrant moral falsehood, they can maintain the stability of their political edifice only by debarring all questions, all discussions, that might assault and endanger its foundations. As in despotic monarchies it was found necessary to declare it to be treason, punishable as a capital offense, to question the right divine of kings, so in a slave empire they see it to be indispensable to forbid, on pain of death, all opinions touching the sinfulness, or inconsistency with religion, of slavery. Twenty-five years ago they declared from their places in Congress that, in spite of the Federal Government, every abolitionist they caught should die a felon's death. It was no idle menace, as hundreds of murders for opinion's sake, committed in the South before the war, terribly attest.
Let us not blame the men, except it be for seeking to uphold the monstrous system handed down to them by their forefathers. They must resist the Federal authority to maintain that system. They must violate the constitutional provision which forbids to abridge "the liberty of speech or of the press;" self-defense and its necessities compel them. They found this necessary before the war in order to save slavery from destruction; the necessity will be increased beyond measure if slavery remain after its close. Now that the President's proclamation of emancipation has stirred up, in every Southern plantation, the latent longing for freedom, the dangers to their slave system from propagandism will be increased a hundredfold.
It follows that in this Republic, if reconstructed half slave, half free, no man known to be opposed in principle to slavery will be able to cross Mason and Dixon's line without imminent risk of life. South of that line the constitutional provision touching the liberty of speech and of the press will remain inoperative. A felon's death will await every resident or traveler in the South who prints or who utters in public or in private any denial that slavery is just and moral, any assertion that religion does not sanction it. The Constitution guarantees the right thus to print, thus to speak. The Federal Government is bound to maintain that constitutional right. But it cannot maintain it in a republic half slave, half free. What then? Can a free Government sustain itself, can a free nation continue to exist under such a state of things as that? Certainly not. The North, now that her spirit is up, would not endure it for a moment. It would inevitably result in war.
Let us pass to another matter. In South Carolina's "declaration of causes" for secession one of the chief (set forth as justifying and necessitating separation) is "the election of a man to the high office of President of the United States whose opinions and purposes are hostile to slavery." This, it is declared, the slave-holding States cannot permit, because whenever it shall occur "the Federal Government will have become their enemy."
To satisfy a slave-holding South, so that she shall permit us again to unite with her, it is evident that we must do one of two things--either to consent so to amend the Constitution that no man shall be eligible as President "whose opinions and purposes are hostile to slavery," or else make up our minds to a second insurrection the first time a President with such opinions happens to be elected. The constitutional amendment, our first alternative, would be an infamy, if it were a possibility; the second alternative is renewed war.
But the very head and front of our former offending against the South remains yet untouched--the loose manner, to wit, in which she alleges that the furtive slave law has heretofore been enforced. This, our offense, was so grievous in the eyes of South Carolina that she put it forth in her declaration as the first and in itself the all-sufficient cause for separation; adding, "Thus the constitutional compact has been deliberately broken, and South Carolina is released from her obligation."
What chance, even the remotest, is there that, with slavery and freedom in political partnership, this rock of offense will be avoided hereafter? Let us for a moment imagine that the emancipation proclamation had no force in law. Nevertheless, it has been promulgated; its glad tidings have penetrated to the remotest haunts of Southern slavery. To the slave it is a reality. In his heart it has called up the assurance--the fervent hope, at least--that if he can but once elude the vigilance of his master there is yet freedom for him on this side of the grave. That hope once awakened throughout the length and breadth of the insurrectionary States, can it ever again be put to rest? Is it not certain that under its promptings--no matter how firmly we might re-establish slavery by law--these bondmen would cross the border by thousands, for hundreds that have sought refuge among us till now? And when they do pass into that land whose President proclaimed them freemen, and where twenty abolitionists are to be found now for every one who was there on the day Fort Sumter fell, will there be increased cheerfulness, greater willingness to aid in their rendition than there was before the war began? What a mockery is the question! On what a foundation of quicksand do they build who found their hopes of future peace on the expectation that a fugitive slave law will be more stringently enforced in the future than in the past-- on the vain dream that Northern spirit, whether flushed with victory or maddened by defeat, will find no occupation more noble than to pursue and secure poor fugitives deluded by a national promise basely broken, and who had been urged to flight by belief in our humanity and confidence in our truth!
In such a state of feeling, under such a state of things, can we doubt the inevitable results? Shall we escape border raids after fleeing fugitives? No sane man will expect it. Are we to suffer these? We are disgraced! Are we to repel them? It is a renewal of hostilities!
Turn which way we will, slavery is war. There is, in the very nature of things there can be, no security for peace or loyalty from a slave State. The only practicable road to domestic tranquillity open to us now is through emancipation.
But in deciding a matter of such vast gravity as this it behooves us to look to our relations with foreign nations as well as to those between our own States.
That slavery is an element of weakness in war was denied three years ago by those Northern men who were in the habit of regarding it as a sacred thing, which to touch, even in our enemy's hands, was profane. No statesman will deny it now. The rebellion will be put down; through the clouds of war we see already the beginning of the end. But if the 3,000,000 of slaves gradually coming over to us, and swelling the ranks of our liberating armies, had been 3,000,000 of free men, loyal to the South--if the population of the Southern States, without regard to color, had been a unit in this struggle--should we have defeated them in their effort for recognition? If history speak truth, we should not. Never, since the world began, did 9,000,000 people band together, resolutely inspired by the one idea of achieving their independence, yet fail to obtain it. It is not a century since one-third of the number successfully defied Great Britain
The present is teaching, and the future will teach more clearly still, that slavery is an element of military weakness. We have taught that lesson to Europe. In case of foreign war, with slavery still existing among us, will she fail to remember and to apply it? In such a case will England, will France, will any European power, save, perhaps, lagging Spain, respect an institution which they all regard as a national crime--a crime for which many of them have atoned by repentance and at heavy cost? In the case of foreign hostilities would not Lord Dunmore's proclamation be reproduced in a far more dangerous form, with a far more fatal effect?
It is certain that it would. But this is the least of our dangers in such a contingency. In case of a foreign war, with master and slave still constituting a portion of our population, with whom will the master side? With us, the detested Yankees, or with those European potentates, all but publicly invited already to forgive the undutiful doings of 1776, and to send a royal scion to reign over them? Like causes continued produce like results. If we subdue the slavemasters, leaving them slave-masters still, can we expect that they will abstain from plotting foreign war, that they may gain by it? And if they succeed in the treasonable plot, can we suppose that they will refrain from seeking their own advantage by an alliance with the enemy?
If we expose ourselves to these dangers, patent to common sense, we shall deserve our fate. To foreign as well as to domestic tranquillity, the only practicable path is through general emancipation.
In other words, as we would hasten by every lawful and proper means the advent of peace; as we would obtain, before this contest closes, a guarantee against its renewal; as we would protect ourselves, by prudent foresight and precaution, against foreign complications involving dismemberment of the Nation--and what duties during war more imperative than these?--we must take and cancel our enemies' claims to service and labor. That service feeds our enemy; that labor supplies his commissariat. Deprived of it, his power to injure us is taken from him. Possessed of it, he remains our enemy---dangerous in peace, still more dangerous in war--while grass grows and water runs.
Is not the grandeur of the object, then, commensurate with the magnitude of the remedy? If that remedy produce temporary disturbance of social and political elements throughout half our country, is not the alternative the dismemberment of that country itself; its loss of unity; its loss of peace; its final decline and fall as one of the great powers of the world?
So far the argument has been one of policy alone; selfish, in one sense, it may be called, since it takes into account the interests of one only out of the two races which inhabit our country--an argument, too, sound and unanswerable if it be, which does not reach the full dignity of the subject; since it has not treated it in its relation to the progress of civilization and humanity, and to the national honor, ever intimately connected with the national life.
Opinions adverse to the lawfulness of slavery have, for a century past, been spreading and swelling into action throughout the civilized world. They have taken practical form and shape--they have become law--till not a nation in Europe, Christian or Mohammedan, Spain alone excepted, stands out against them. England led the way. In 1834 she emancipated all her slaves. King Oscar, of Sweden, followed her example in 1846. Then came Denmark in 1847, France in 1848, Portugal in 1856, the vast empire of Russia in 1862. Finally, with nearly thirty years' experience in English colonies and fifteen years' experience in those of France before her eyes, plain, practical, unimaginative Holland, by a vote in her Chambers of forty-five to seven, gave freedom, with compensation, to her 45,000 slaves--liberating them on the 1st of July last.
The opinions which gave rise to these national acts are gradually finding place among the maxims of international law, as expounded by modern commentators. Phillimore, a reputable authority, says:
There is a kind of property which it is equally unlawful for States as for individuals to possess--property in man. A being endowed with will, intellect, passion, and conscience cannot be acquired and alienated, bought and sold by his fellow-beings, like an inanimate or unreflecting and irresponsible thing. The Christian world has slowly but irrevocably arrived at the attainment of this great truth. * * * The black man is no more capable of being a chattel than the white man.
The negro and the European have equal rights. Neither are among the res posit in commercio in which it is lawful for States or individuals to traffic.
The United States, prompt in other matters to take part with the foremost and freest nations in asserting the principles of liberty and human rights, have held back behind Europe on the subject of negro emancipation.
The chief reason is, that a regard for law conflicted with a regard for liberty. To the American citizen the Constitution stands in the place occupied, under the monarchical system, by the sovereign in person. It is the object of his loyalty. His veneration for that instrument went so far as to influence his perceptions of justice. A majority in the North have always held it to be a great wrong that human beings and their descendants forever should be held in bondage. Up to the time when this war made the slave-holders in eleven States our enemies, we acquiesced in that wrong, lest, in the endeavor to remedy it, greater evils might follow. Though it be true that, before the war, the legality of the slave-holders' claim to service or labor was denied, on humanitarian grounds, yet a construction of the Constitution adverse to such denial, and acquiesced in by the Nation throughout two generations, was held by most men to be sufficient reason why the claim in question should be regarded as private property and respected as such. The majority held to the opinion that it could not be taken except by a violation of the Constitution; in other words, by a revolutionary act. They felt that though revolutionary acts become a justifiable remedy upon great occasions, as in 1776, yet they are usually replete with peril; that it is easy to pass the limit of regulated authority, but impossible to estimate the dangers we may encounter when that guardian limit is once transgressed.
That in the minds of many, cupidity, excited sometimes by supposed commercial advantages, sometimes by selfish political calculations, came in aid of constitutional scruple, may not be denied, and, so far as that motive prevailed, our complicity as a people is without palliation. But cupidity, commercial or political, was not the dominant motive, nor, but for the restraint of the Constitution, would sordid considerations have prevented the Nation from shaking off the incubus which oppressed it.
Slavery, therefore, moral wrong as it is, was tolerated by the majority as one of the articles in a great national compromise which it was unlawful and perilous to violate. If, before the South had trampled under foot compromise and Constitution, those who directed the Federal Government, taking the initiative, had striven to eradicate the growing evil, the effort would have been vain, for they could not have carried the people with them. To human eyes there seemed, in this generation at least, no way out.
But God, who overrules evil for good, opened the way. They, the chief architects of the great wrong of the age, in whose hands alone seemed to have been left the power to hasten its downfall, have madly persisted in the very course that is leading swiftly and inevitably to that result. In the early stage of the war Congress proposed, and the majority of the Nation expected, as the issue of this contest, a mere rehabilitation, with Southern laws and Southern institutions reacknowledged in their pristine form. Again and again warning was given, and the return of the insurgents to their loyal duty on these conditions was urged upon them. But their hearts were hardened, and they would not. By their obstinate perversity they closed the door against themselves. They persevered in their conspiracy against public law until emancipation became an imperative measure of self-defense. They persevered until public opinion, revolutionized, demanded that measure as the only sure guaranty in the future for national safety and national peace. They, the slave-holders, became the abolitionists of slavery. Let us not take credit to ourselves for generous philanthropy. The South, reckless and blind, was herself the unwitting agent. And thus, in the providence of God, the very effort by armed treason to perpetuate an abuse has given us at once the will and the right to effect its eradication.
The time has come when it is constitutional to redress that abuse. No law restrains us. Henceforth we are responsible, if in the race for human freedom we lag, with Spain, behind the rest of the civilized world. Henceforth we are responsible, before God and man, if, having at last become free to carry out in practice the noble declaration of our forefathers that life, liberty, and the pursuit of happiness are among the inalienable rights of man, we basely refuse or neglect to do so.
We have a greater responsibility still. We are as one having an oath upon his soul. The maxim is well known, that he who legally acts by another is himself the actor. The legal acts of the President are the acts of the Nation. It was the people of the United States who on the 1st day of January, 1863, set free 3,000,000 men. The deed is done; lawfully, righteously done. Its validity is as well established as that of any other public act.
But to establish its validity is to establish the status, as freemen, of every person that was held as a slave in the insurrectionary districts named on the first day of the year 1863, whether he shall have physically escaped from bondage or not. "All persons held as slaves" within these districts, are the words. Is the deed valid? The words stand. Is it invalid? It cannot free a single slave.
The argument, therefore, is unavailing that many of these people are still worked as slaves by persons setting at defiance the constitutional jurisdiction and the national will. A law set at defiance for the time is not thereby abrogated. In disturbed times cases of illegal detention frequently occur. Such are these cases. But, in the eye of the law, the persons thus illegally detained have the rights of freemen, and the radical bayonet must enforce these rights.
Equally unavailing is the allegation, that as the proclamation was but a war measure, and therefore of force and virtue commensurate only with the war, its operation will cease when the immediate necessity which caused and justified it ceases; that is, when peace is restored.
The exigency is as great in peace as in war. There are moral and national, as well as physical necessities. "America," said the great Earl of Chatham, during a memorable debate in the House of Lords in 1770, "was settled upon ideas of liberty." In these ideas it was that our fathers founded the Republic. In these ideas alone can we, their descendants, maintain it.
The political necessity that never more, within these United States, shall life-long claims to service and labor be held by inhabitants thereof, will be as great when peace returns as it is now while war rages. Always morally unjust, this property has shown itself to be nationally dangerous. But a species of property that endangers the safety of a nation must not be left in the hands of its citizens, whether in peace or war.
Nor can it be pleaded that the taking of this property, vast as is its amount, is an act committed regardless of mercy to the vanquished, an act of harsh severity, much less a deed of plunder; no, nor yet a measure of punishment. Far from offending against any principle of humanity in destroying such property--in other words, in canceling life-long claims to service and labor--the inhumanity would have been to refrain from destroying it.
Nor do we harm the slave claimant, but greatly benefit him, by canceling these claims. In point of fact it is incalculably to his advantage, socially, pecuniarily, politically, to be without them. While he retains them there will be between him and us a lack of the conditions necessary to a true union; there will be no loyal concurrent sentiment of citizenship. But a forced union of States, without the conditions under which alone concurrence of ideas and affections is possible, would be a measure unworthy of a statesman. Slave-holders and freemen can never, in these States, act together in friendship again. Therefore, for his own sake, the slave-holder must cease to be such.
Are we impertinently interfering in his business, arrogantly and improperly assuming to judge what is best for him, when we determine this? Not at all. The business is emphatically our own, for it intimately concerns our national existence. In deciding it as we see fit there is neither impropriety nor arrogance, but proper precaution and prudent foresight. If he had refrained from levying war against his Government he would have had the undoubted right to judge and to act in this affair. As it is, he has lost it; and we have now the right and the power to decide the matter, not he.
But, in the second place, our power is restricted to the abrogation of these claims, and it ceases there. As a trust for a special object is exhausted with the execution of that object, so is the authority of the President, being in the nature of a trust, in this case. His object was to restore and render stable the national unity. To effect that great object, to preserve from permanent dismemberment the country over which he presides, he enfranchised 3,000,000 of its inhabitants. Under this act of his, third parties took vested rights. Under the inducements of this act of his, third parties took refuge within our lines, enlisted in our armies, fought in our battles. We had a right to confer these vested rights; we had a right to present these inducements; we had a right to accept this aid. But having done all this, we have no right to resume what we have granted. We had a right to act; we have no authority to revolve our action. To enslave is not a power under the Constitution. No officer or department of the Government can exercise it. From that stain, at least, we are free. Were it otherwise our Government would be the scorn of the age, a disgrace to christendom.
We have lost, by our own solemn act, the right henceforth to talk of reconstruction with the "peculiar institution" of the South left intact. Such language is now but a mischievous mystification. If the South conquer, she may, by superior force, hold as slaves those who by our laws are free men. But for us there is no longer in any of the insurrectionary States a peculiar institution to be left intact. We may build up anew that institution in violation of law, it is true, for neither the President, nor Congress, nor any judicial tribunal in the land has any more authority to consign a freedman to slavery than they have to hang him without crime or trial; but we may build it up if we have power enough, or connive at it if we are shameless enough, just as a highwayman may seize a purse or a burglar carry off a basket of silverware.
Whether, when we shall have suffered vanquished treason to dictate her own terms; whether, when we shall have stooped to purchase, not peace, for God's best blessing cannot so be purchased, but a worthless truce, as brief as treacherous, by an act of usurpation that assumes to assign away the liberties of 3,000,000 of free people; whether, when we shall have done this one great thing, we shall have any right to set up for more honest or more virtuous than the felon trader who makes a midnight descent on the Congo coast and steals thence 300 or 400 wretches to crowd the hold of his slave ship---that will be a question to be settled at our leisure with our own consciences.
"The way of the transgressor is hard." It is better to lose fortune than fair fame, and national disgrace is worse than national disaster. A convict, where he is known and remembered as such, may, because of the stain that attaches to him, toil faithfully through half a lifetime ere men take him again by the hand; and a people, stamped by their own public records as lawless and forsworn, may travel a long and a weary road, a reproach the while, and a byword among nations, ere they can take an honored stand once more among the civilized powers of the earth.
In concluding this branch of the subject we briefly group together the propositions that have been advanced:
The inhabitants of the insurrectionary States are, in contemplation of law, without exception, public enemies.
Property belonging to an enemy may, by the law of nations, be seized by the proper military authority and appropriated or destroyed.
In like manner, claims or debts due by a public enemy to an inhabitant of this country may be seized and canceled.
The claims to service or labor upon which rests negro slavery are, in contemplation of the Constitution, in the nature of debts or choses in action, and may, when held by an enemy, be declared null and void.
These claims, because of the labor which they command, constitute a chief resource of the insurgents for carrying on the war, and therefore essentially tend to protract it; for which reason it is the duty of the Commander-in-Chief to take and cancel them.
The interests growing out of these claims have been the cause of the present insurrection, and there can be no sufficient guaranty for peace while they exist, for which reason, also, it becomes a duty to declare them null and void.
These claims involve a great moral wrong, which the insurrection has made it legal to redress, and we are now responsible as a nation if we fail to redress it by their abrogation.
The President's proclamation of emancipation was legal and righteous; it was the act of the Nation, and cannot lawfully, nor without violating the national faith solemnly pledged, be revoked.
Therefore the emancipation of all the slaves in the insurrectionary portions of the Union was an act legal and irrevocable.
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