Forced Emancipation.--Purposes of the United States Government at
the Commencement of 1862.--Subjugation or Extermination.--The
Willing Aid of United States Congress.--Attempt to legislate the
Subversion of our Social Institutions.--Could adopt any Measure
Self-Defense would justify.--Slavery the Cause of all Troubles,
therefore must be removed.--Statements of President Lincoln's
Inaugural.--Declaration of Sumner.--Abolition Legislation.--The
Power based on Necessity.--Its Formula.--The System of Legislation
devised.--Confiscation.--How permitted by the Law of Nations.--
Views of Wheaton; of J. Q. Adams; of Secretary Marcy; of
Chief-Justice Marshall.--Nature of Confiscation and Proceedings.--
Compared with the Acts of the United States Congress.--Provisions of
the Acts.--Five Thousand Millions of Property involved.--Another
Feature of the Act.--Confiscates Property within Reach.--Procedure
against Persons.--Held us as Enemies and Traitors.--Attacked us
with the Instruments of War and Penalties of Municipal Law.--
Emancipation to be secured.--Remarks of President Lincoln on signing
the Bill.--Remarks of Mr. Adams compared.--Another Alarming
Usurpation of Congress.--Argument for it.--No Limit to the
War-Power of Congress; how maintained.--The Act to emancipate Slaves
in the District of Columbia.--Compensation promised.--Remarks of
President Lincoln.--The Right of Property violated.--Words of the
Constitution.--The Act to prohibit Slavery in the Territories.-The
Act making an Additional Article of War.--All Officers forbidden to
return Fugitives.--Words of the Constitution.--The Powers of the
Constitution unchanged in Peace or War.--The Discharge of Fugitives
commanded in the Confiscation Act.--Words of the Constitution.
At the commencement of the year 1862 it was the purpose of the United
States Government to assail us in every manner and at every point and
with every engine of destruction which could be devised. The usual
methods of civilized warfare consist in the destruction of an enemy's
military power and the capture of his capital. These, however, formed
only a small portion of the purposes of our enemy. If peace with
fraternity and equality in the Union, under the Constitution as
interpreted by its framers, had been his aim, this was attainable
without war; but, seeking supremacy at the cost of a revolution in
the entire political structure, involving a subversion of the
Constitution, the subjection of the States, the submission of the
people, and the establishment of a union under the sword, his efforts
were all directed to subjugation or extermination. Thus, while the
Executive was preparing immense armies, iron-clad fleets, and huge
instruments of war, with which to invade our territory and destroy
our citizens, the willing aid of an impatient, enraged Congress was
invoked to usurp new powers, to legislate the subversion of our
social institutions, and to give the form of legality to the plunder
of a frenzied soldiery.
That body had no sooner assembled than it brought forward the
doctrine that the Government of the United States was engaged in a
struggle for its existence, and could therefore resort to any measure
which a case of self-defense would justify. It pretended not to know
that the only self-defense authorized in the Constitution for the
Government created by it, was by the peaceful method of the
ballot-box; and that, so long as the Government fulfilled the objects
of its creation (see preamble of the Constitution), and exercised its
delegated powers within their prescribed limits, its surest and
strongest defense was to be found in that ballot-box.
The Congress next declared that our institution of slavery was the
cause of all the troubles of the country, and therefore the whole
power of the Government must be so directed as to remove it. If this
had really been the cause of the troubles, how easily wise and
patriotic statesmen might have furnished a relief. Nearly all the
slaveholding States had withdrawn from the Union, therefore those who
had been suffering vicariously might have welcomed their departure,
as the removal of the cause which disturbed the Union, and have tried
the experiment of separation. Should the trial have brought more
wisdom and a spirit of conciliation to either or both, there might
have arisen, as a result of the experiment, a reconstructed fraternal
Union such as our fathers designed.
The people of the seceded States had loved the Union. Shoulder to
shoulder with the people of the other States, they had bled for its
liberties and its honor. Their sacrifices in peace had not been less
than those in war, and their attachment had not diminished by what
they had given, nor were they less ready to give in the future. The
concessions they had made for many years and the propositions which
followed secession proved their desire to preserve the peace.
The authors of the aggressions which had disturbed the harmony of the
Union had lately acquired power on a sectional basis, and were eager
for the spoil of their sectional victory. To conceal their real
motive, and artfully to appeal to the prejudice of foreigners, they
declared that slavery was the cause of the troubles of the country,
and of the "rebellion" which they were engaged in suppressing. In his
inaugural address in March, 1861, President Lincoln said: "I have no
purpose, directly or indirectly, to interfere with the institution of
slavery in the States where it exists. I believe I have no lawful
right to do so, and I have no inclination to do so." The leader
(Sumner) of the Abolition party in Congress, on February 25, 1861,
said in the Senate, "I take this occasion to declare most explicitly
that I do not think that Congress has any right to interfere with
slavery in a State." The principle thus announced had regulated all
the legislation of Congress from the beginning of its first session
in 1789 down to the first session of the Thirty-seventh Congress,
commencing July 4, 1861.
A few months after the inaugural address above cited and the
announcement of the fact above quoted were made, Congress commenced
to legislate for the abolition of slavery. If it had the power now to
do what it before had not, whence was it derived? There had been no
addition in the interval to the grants in the Constitution; not a
word or letter of that instrument had been changed since the
possession of the power was disclaimed; yet after July 4, 1861, it
was asserted by the majority in Congress that the Government had
power to interfere with slavery in the States. Whence came the
change? The answer is, It was wrought by the same process and on the
same plea that tyranny has ever employed against liberty and
justice--the time-worn excuse of usurpers--necessity; an excuse
which is ever assumed as valid, because the usurper claims to be the
sole judge of his necessity.
The formula under which it was asserted was as follows:
"Whereas the laws of the United States have been for some time past
and now are opposed, and the execution thereof obstructed, etc., by
combinations too powerful to be suppressed by the ordinary course of
judicial proceedings," etc.
Therefore, says the plea of necessity, a new power is this day found
under the Constitution of the United States. This means that certain
circumstances had transpired in a distant portion of the Union, and
the powers of the Constitution had thereby become enlarged. The
inference follows with equal reason that, when the circumstances
cease to exist, the powers of the Constitution will be contracted
again to their normal state; that is, the powers of the Constitution
of the United States are enlarged or contracted according to
circumstances. Mankind can not be surprised at seeing a Government,
administered on such an interpretation of powers, blunder into a
civil war, and approach the throes of dissolution.
Nevertheless, these views were adopted by the Thirty-seventh Congress
of the United States, and a system of legislation was devised which
embraced the following usurpations: universal emancipation in the
Confederate States through confiscation of private property of all
kinds; prohibition of the extension of slavery to the Territories;
emancipation of slavery in all places under the exclusive control of
the Government of the United States; emancipation with compensation
in the border States and in the District of Columbia; practical
emancipation to follow the progress of the armies; all restraints to
be removed from the slaves, so that they could go free wherever they
pleased, and be fed and clothed, when destitute, at the expense of
the United States, literally to become a "ward of the Government."
The emancipation of slaves through confiscation in States where the
United States Government had, under the Constitution, no authority to
interfere with slavery, was a problem which the usurpers found it
difficult legally or logically to solve, but these obstacles were
less regarded than the practical difficulty in States where the
Government had no physical power to enforce its edicts. The limited
powers granted in the Constitution to the Government of the United
States were not at all applicable to such designs, or commensurate
with their execution. Now, let us see the little possibility there
was for constitutional liberties and rights to survive, when
intrusted to such unscrupulous hands.
In Article I, section 8, the Constitution says:
"The Congress shall have power to declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and
water; to raise and support armies; to provide and maintain a navy;
to make rules for the government and regulation of the land and naval
forces," etc.
This is the grant of power under which the Government of the United
States makes war upon a foreign nation. If it had not been given in
the Constitution, there would not have been any power under which to
conduct a foreign war, such as that of 1812 against Great Britain or
that of 1846 against Mexico. In such conflicts the nations engaged
recognize each other as separate sovereignties and as public enemies,
and use against each other all the powers granted by the law of
nations. One of these powers is the confiscation of the property of
the enemy. Under the law of nations of modern days this confiscation
is limited in extent, made under a certain form, and for a defined
object.
For the modern laws of war one must look to the usages of civilized
states and to the publicists who have explained and enforced them.
These usages constitute themselves the laws of war.
In relation to the capture and confiscation of private property on
land, in addition to what has been said in previous pages, it may be
added that the whole matter has never been better stated than by our
great American publicist, Mr. Wheaton, in these words:
"By the modern usages of nations, which have now acquired the force
of law, temples of religion, public edifices devoted to civil
purposes only, monuments of art, and repositories of science, are
exempted from the general operations of war. Private property on land
is also exempt from confiscation, with the exception of such as may
become booty in special cases, when taken from enemies in the field
or in besieged towns, and of military contributions levied upon the
inhabitants of the hostile territory. This exemption extends even to
the case of an absolute and unqualified conquest of the enemy's
country,"--("Elements of International Law," p. 421.)
Mr. John Quincy Adams, in a letter to the Secretary of State, dated
August 22, 1815, says:
"Our object is the restoration of all the property, including slaves,
which, by the usages of war among civilized nations, ought not to
have been taken. All private property on shore was of that
description. It was entitled by the laws of war to exemption from
capture."--(4 "American State Papers," 116, etc.)
Again, Mr. William L. Marcy, Secretary of State, in a letter to the
Count de Sartiges, dated July 28, 1856, says:
"The prevalence of Christianity and the progress of civilization have
greatly mitigated the severity of the ancient mode of prosecuting
hostilities. . . . It is a generally received rule of modern warfare,
so far at least as operations upon land are concerned, that the
persons and effects of non-combatants are to be respected. The wanton
pillage or uncompensated appropriation of individual, property by an
army even in possession of an enemy's country is against the usage of
modern times. Such a proceeding at this day would be condemned by the
enlightened judgment of the world, unless warranted by particular
circumstances."
The words of the late Chief-Justice Marshall on the capture and
confiscation of private property should not be omitted:
"It may not be unworthy of remark that it is very unusual, even in
cases of conquest, for the conqueror to do more than displace the
sovereign, and assume dominion over the country. The modern usage of
nations, which has become law, would be violated; that sense of
justice and of right which is acknowledged and felt by the whole
civilized world would be outraged, if private property should be
generally confiscated and private rights annulled. The people change
their allegiance; their relation to their ancient sovereign is
dissolved; but their relations to each other and their rights of
property remain undisturbed."--("United States vs. Percheman," 7
Peters, 51.)
The Government of the United States recognized us as under the law of
nations by attempting to use against us one of the powers of that
law. Yet, if we were subject to this power, we were most certainly
entitled to its protection. This was refused. That Government
exercised against us all the severities of the law, and outraged that
sense of justice and of right which is acknowledged and felt by the
whole civilized world by rejecting the observance of its
ameliorations. The act of confiscation is a power exercised under the
laws of war for the purpose of indemnifying the captor for his
expense and losses; and it is upon this basis that it is recognized.
At the same time there is a mode of procedure attached to its
exercise by which it is reserved from the domain of plunder and
devastation. As has been already shown, there are, under the law,
exemptions of certain classes of property. It is further required
that the property subject to confiscation shall be actually captured
and taken possession of. It shall then be adjudicated as prize by a
proper authority, then sold, and the money received must be deposited
in the public Treasury. Such are the conditions attached by the law
of nations to legal confiscation.
Now, compare these conditions with the act of Congress, that in its
true light the usurpations of that body may be seen. The act of
Congress allowed no exemptions of private property, but confiscated
all the property of every kind belonging to persons residing in the
Confederate States who were engaged in hostilities against the United
States or who were aiding or abetting those engaged in hostilities.
This includes slaves as well as other property. The act provided that
the slaves should go free; that is, they were exempted from capture,
from being adjudicated and sold, and no proceeds of sale were to be
put into the public Treasury. The following sections are from the act
of the United States Congress, passed on August 6, 1861:
"Section 1. That if, during the present or any future insurrection
against the Government of the United States after the President of
the United States shall have declared by proclamation that the laws
of the United States are opposed and the execution thereof obstructed
by combinations too powerful to be suppressed by the ordinary course
of judicial proceedings or by the power vested in the marshals by
law, any person, or persons, his, her, or their agent, attorney, or
employee shall purchase or acquire, sell or give, any property, of
whatsoever kind or description, with intent to use or employ the
same, or suffer the same to be used or employed in aiding, abetting,
or promoting such insurrection or resistance to the laws, or any
person or persons engaged therein, or if any person or persons, being
the owner or owners of any such property, shall knowingly use or
employ or consent to the use or employment of the same as aforesaid,
all such property is hereby declared to be lawful subject of prize
and capture wherever found; and it shall be the duty of the President
of the United States to cause the same to be seized, confiscated, and
condemned.
"Section 3. The proceedings in court shall be for the benefit of the
United States and the informer equally.
"Section 4. That whenever hereafter, during the present insurrection
against the Government of the United States, any person claimed to be
held to labor or service under the law of any State shall be required
or permitted by the person to whom such labor or service is claimed
to be due, or by the lawful agent of such person, to take up arms
against the United States, or shall be required or permitted by the
person to whom such labor or service is claimed to be due, or his
lawful agent, to work or to be employed in or upon any fort,
navy-yard, dock, armory, ship, intrenchment, or in any military or
naval service whatsoever against the Government and lawful authority
of the United States, then, and in every such case, the person to
whom such labor or service is claimed to be due shall forfeit his
claim to such labor, any law of the State or of the United States to
the contrary notwithstanding. And, whenever thereafter the person
claiming such labor or service shall seek to enforce his claim, it
shall be a full and sufficient answer to such claim that the person
whose service or labor is claimed had been employed in hostile
service against the Government of the United States contrary to the
provisions of this act."
The following sections are from the act of Congress passed on July
17, 1862:
"Section 6. That if any person, within any State or Territory of the
United States other than those named aforesaid" (Confederate
officers, etc.), "after the passage of this act, being engaged in
armed rebellion against the Government of the United States or aiding
or abetting such rebellion, shall not within sixty days after public
warning and proclamation duly given and made by the President of the
United States, cease to aid, countenance, and abet such rebellion and
return to his allegiance to the United States, all the estate and
property, moneys, stocks, and credits of such person shall be liable
to seizure as aforesaid, and it shall be the duty of the President to
seize and use them as aforesaid, or the proceeds thereof. And all
sales, transfers, or conveyances of any such property, after the
expiration of the said sixty days from the date of such warning and
proclamation, shall be null and void; and it shall be a sufficient
bar to any suit brought by such person for the possession or use of
such property, or any of it, to allege and prove that he is one of
the persons described in this section.
"Section 7. That to secure the condemnation and sale of any such
property, after the same shall have been seized, so that it may be
made available for the purpose aforesaid, proceedings _in rem_ shall
be instituted in the name of the United States in any district court
thereof, or in any territorial court, or in the United States
District Court for the District of Columbia, within which the
property above described, or any part thereof, may be found, or into
which the same, if movable, may first be brought, which proceedings
shall conform as nearly as may be to proceedings in admiralty or
revenue cases; and if said property, whether real or personal, shall
be found to have belonged to a person engaged in rebellion, or who
has given aid or comfort thereto, the same shall be condemned as
enemy's property and become the property of the United States, and
may be disposed of as the court shall decree, and the proceeds
thereof paid into the Treasury of the United States for the purposes
aforesaid.
"Section 9. That all slaves of persons who shall hereafter be engaged
in rebellion against the Government of the United States, or who
shall in any way 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 the forces of the United
States, shall be deemed captives of war, and shall be for ever free
of their servitude, and not again held as slaves.
"Section 10. That no slave escaping into any State, Territory, or the
District of Columbia from any other State, shall be delivered up, or
in any way impeded or hindered of his liberty, except for crime or
some offense against the laws, unless the person claiming said
fugitive shall first make oath that the person, to whom the labor or
service of such fugitive is alleged to be due, is his lawful owner,
and has not borne arms against the United States in the present
rebellion, nor in any way given aid and comfort thereto; and no
person engaged in the military and naval service of the United States
shall, under any pretense whatever, assume to decide on the validity
of the claim of any person to the service or labor of any other
person, or surrender up any such person to the claimant, on pain of
being dismissed from the service."
These above-mentioned proceedings violated all the principles of the
law of nations, without a shadow of authority for it under the
Constitution of the United States. The armies of the United States
were literally authorized to invade the Confederate States, to seize
all property as plunder, and to let the negroes go free. Our
posterity, reading that history, will blush that such facts are on
record. It was estimated on the floor of the House of Representatives
that the aggregate amount of property within our limits subject to be
acted upon by the provisions of this act would affect upward of six
million people, and would deprive them of property of the value of
nearly five thousand million dollars.
Said Mr. Garrett Davis, of Kentucky:
"Was there ever, in any country that God's sun ever beamed upon, a
legislative measure involving such an amount of property and such
numbers of property-holders?"
But this is only one feature of the confiscation act which was
applied to persons who were within the Confederate States, in such a
position that the ordinary process of the United States courts could
not be served upon them. They could be reached only by the armies.
There was another feature equally flagrant and criminal. It was
extended to all that class of persons giving aid and comfort, who
could be found within the United States, or in such position that the
ordinary process of law could be served on them. It was derived from
Article III, section 3, of the Constitution, which says:
"The Congress shall have the power to declare the punishment of
treason, but no attainder of treason shall work corruption of blood,
or forfeiture, except during the life of the person attainted."
The mode of procedure against persons under this power was determined
by other clauses of the Constitution. Article III, section 2,
declared that--
"The trial of all crimes, except in cases of impeachment, shall be by
jury; and such trial shall be held in the State where the said crimes
shall have been committed."
In section 3, of the same article, it was provided that--
"No person shall be convicted of treason unless on the testimony of
two witnesses to the same overt act, or on confession in open court."
This feature of the confiscation act, passed by the Congress of the
United States, provided for the punishment of the owner of property,
on the proof of the crime, but excluded the trial by jury, and made
the forfeiture of the property absolute instead of a forfeiture for
life. Heavy fines were imposed, and property was sold in fee. The
property to which the act applied was not a prize under the law of
nations, nor booty, nor contraband of war, nor enforced military
contributions, nor used or employed in the war or in resistance to
the laws. It was private property, outside of the conflict of arms,
and forfeited, not because it was the instrument of offense, but as a
penalty for the assertion of his rights by the owner, which was
imputed to him as a crime. Such proceeding was, in effect, punishment
by the forfeiture of a man's entire estate, real and personal,
without trial by jury, and in utter disregard of the provisions of
the Constitution. It was an attempt to get a man's property, real and
personal, "silver spoons" included, into a prize court, to be tried
by the laws of war.
It will be seen that we were treated by the Congress of the United
States as holding the twofold relation of enemies and traitors, and
that they used against us all the instruments of war, and all the
penalties of municipal law which made the punishment of treason to be
death. The practical operation, therefore, of these laws was that,
under a Constitution which defined treason to consist in levying war
against the United States, which would not suffer the traitor to be
condemned except by the judgment of his peers, and, when condemned,
would not forfeit his estate except during his life, the Government
of the United States did proceed against six million people, without
indictment, without trial by jury, without the proof of two
witnesses, did adjudge our six millions of people guilty of treason
in levying war, and decree to deprive us of all our estate, real and
personal, for life, and in fee, being nearly five thousand million
dollars. And, after we had been thus punished, without trial by jury,
and by the loss in fee of our whole estate, the Government of the
United States assumed the power, on the same charge of levying war,
to try us and to hang us.
The first object to be secured by this act of confiscation was the
emancipation of all our slaves. Upon his approval of the bill,
President Lincoln sent a message to Congress, in which he said:
"It is startling to say that Congress can free a slave within a
State, and yet, if it were said the ownership of the slave had first
been transferred to the nation, and Congress had then liberated him,
the difficulty would at once vanish. And this is the real case. The
traitor against the General Government forfeits his slave at least as
justly as he does any other property; and he forfeits both to the
Government against which he offends. The Government, so far as there
can be ownership, thus owns the forfeited slaves, and the question
for Congress in regard to them is, 'Shall they be made free or sold
to new masters?'"
It is amazing to see the utter forgetfulness of all constitutional
obligations and the entire disregard of the conditions of the laws of
nations manifested in these words of the President of the United
States. Was he ignorant of their existence, or did he seek to cover
up his violation of them by a deceptive use of language. It may not
be unseasonable to repeat here the words of John Quincy Adams, in his
letter of August 22, 1815, as above stated:
"Our object is the restoration of all the property, including slaves,
which, by the usages of war among civilized nations, ought not to
have been taken."
Let posterity answer the questions: Who were the revolutionists? Who
were really destroying the Constitution of the United States?
The agitation of this subject brought out another still more alarming
usurpation in Congress, and showed that the majority were ready to
throw aside the last fragments of the Constitution in order to secure
our subjugation. The argument for this usurpation was thus framed:
Assuming that the state of the "nation" was one of general hostility,
and that, being so involved, it possessed the power of self-defense,
it was asserted that the supreme power of making and conducting war
was expressly placed in Congress by the Constitution. "The whole
powers of war are vested in Congress."--("United States Supreme
Court, Brown vs. United States," 1 Cranch.) There is no such power in
the judiciary, and the Executive is simply "commander-in-chief of the
army and navy"; all other powers not necessarily implied in the
command of the military and naval forces are expressly given to
Congress.
The theory was that the contingency of actual hostilities suspended
the Constitution and gave to Congress the sovereign power of a nation
creating new relations and conferring new rights, imposing
extraordinary obligations on the citizens, and subjecting them to
extraordinary penalties. There is, under that view, therefore, no
limit on the power of Congress; it is invested with the absolute
powers of war--the civil functions of the Government are, for the
time being, in abeyance when in conflict, and all State and
"national" authority subordinated to the extreme authority of
Congress, as the supreme power, in the peril of external or internal
hostilities. The ordinary provisions of the Constitution peculiar to
a state of peace, and all laws and municipal regulations, were to
yield to the force of martial law, as resolved by Congress. This was
designated as the "war power" of the United States Government.
I should deem an apology to be due to my readers, in offering for
their perusal such insane extravagances, under a constitutional
Government of limited powers, had not this doctrine been adopted by
the United States Government, and subsequently made the basis of some
most revolutionary measures for the emancipation of the African
slaves and the enslavement of the free citizens of the South. One
must allow that the Chamber of Deputies of the French National
Assembly of 1798 had some claims to a respectable degree of political
virtue when compared with the Thirty-seventh Congress and the
Executive of the United States.
The specious argument for this tremendous and sweeping usurpation,
designated as the "war power," as presented by its adherents, may be
stated in a few words, thus: The Constitution confers on Congress all
the specific powers incident to war, and then further authorizes it
"to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers." The words are these:
"Congress shall have power to declare war; to grant letters of marque
and reprisal; to make rules concerning captures on land and water; to
raise and support armies; to provide and maintain a navy; to make
rules for the government and regulation of the land and naval forces;
to provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasion; and to make all
laws which shall be necessary and proper for carrying into execution
the foregoing powers and all other powers vested by this Constitution
in the Government of the United States, or in any department or
officer thereof." [46]
It will be seen that this unlimited, despotic power was claimed for
Congress in the conduct of the war under the last clause above, viz.,
"to make all laws which," etc; whereas no one familiar with the rules
of legal interpretation will seriously contend that the powers of
Congress are one atom greater by the insertion of this provision than
they would have been if it had not appeared in the Constitution. The
delegation of a power gives the incidental means _necessary_ for its
execution.
Another step in the usurpations begun for the destruction of slavery
was the passage by Congress of an act for the emancipation of slaves
in the District of Columbia. The act emancipated all persons of
African descent held to service within the District, immediately upon
its passage. Those owners of slaves who had not sympathized with us
were allowed ninety days to prepare and present to commissioners,
appointed for that purpose, the names, ages, and personal description
of their slaves, who were to be valued by commissioners. No single
slave could be estimated to be worth more than three hundred dollars.
One million dollars was appropriated to carry the act into effect.
All claims were to be presented within ninety days after the passage
of the act, and not thereafter; but there was no saving clause for
minors, _femmes covert_, insane or absent persons. On his approval of
the act, the Executive of the United States sent a message to
Congress, in which he said:
"I have never doubted the constitutional authority of Congress to
abolish slavery in the District, and I have ever desired to see the
national capital freed from the institution in some satisfactory way.
Hence there never has been in my mind any questions upon the subject,
except those of expediency, arising in view of all the circumstances."
For the previous twenty-five or thirty years the subject had again
and again been presented in Congress, and was always rejected. One of
the incidents that led to our withdrawal from the Union was the
apprehension that it was the intention of the United States
Government to violate the constitutional right of each State to adopt
and maintain, to reject or abolish slavery, as it pleased. This step
showed the justness of our apprehensions.
Among the rights guaranteed to every citizen of the United States,
including the District of Columbia, was the right of property. No one
could be deprived of his property by the Government, except in the
manner prescribed and authorized by the Constitution. Its words are
these:
"No person shall be deprived of life, liberty, or property without
due process of law; nor shall private property be taken for public
use without just compensation." [47]
Whenever it was necessary in the administration of affairs that the
Government should take private property for public use, it had the
right to take that private property on the condition of making
compensation for it, and on no other condition. Also, it could not be
taken except for public use, even by making just compensation for it;
nor could it be taken to be destroyed. The simple and sole condition
on which the inviolability of private property could be broken by the
Government itself was, that it was necessary for public use.
Otherwise, there was no constitutional right on the part of the
Government to take the property at all.
Again, this property, thus necessary, must be taken by due process of
law. The Government had not the right to declare the mode, and
arbitrarily fix the limit of price which should be paid. The negro
could be taken only as other property, even admitting that he could
be taken for emancipation. The due process of law required that the
citizen's property should be appraised judicially. A court must
proceed judicially in every case, summon a jury, appoint
commissioners, and, under the supervision and sanction of the court,
the valuation of the slave by them must proceed as it does in
relation to any other property of the citizen that might be taken by
the lawful exercise of the power of Congress or of the United States
Government. Thus it will be seen that by this usurpation of power the
Constitution was violated, not only by taking private property for
other purposes than for public use, but in the neglect to observe the
due process of law which the Constitution required.
The next step in the usurpation of power for the destruction of the
right of citizens to hold property in slaves was the passage by
Congress of an act which declared that, after its passage--
"There shall be neither slavery nor involuntary servitude in any of
the Territories of the United States now existing, or which may at
any time hereafter be formed or acquired by the United States,
otherwise than in the punishment of crimes," etc.
The subject had been brought forward at every session of Congress for
a number of years, and was uniformly resisted by the advocates of
equality among the States. We claimed an equal right with the other
States to the occupation and settlement of the Territories which were
the common property of the Union; and that any infringement of this
right was not only a violation of the spirit of the Constitution, but
destructive of that equality of the States so necessary for the
maintenance of their Union. We further claimed our right under this
express provision of the Constitution:
"The Congress shall have power to dispose of and make all needful
rules and regulations respecting the Territory or other property
belonging to the United States; and nothing in this Constitution
shall be so construed as to prejudice any claims of the United States
or of any particular States." [48]
The obstinate resistance of the consolidation school to our views was
an evidence of their aggressive purposes, and justified still further
our apprehensions of their intention to violate our constitutional
rights.
Another step taken to accomplish the emancipation of our slaves was
the passage by Congress of an act making an additional article of war
for the government of the army of the United States. It was in these
words:
"All officers or persons in the military or naval service of the
United States are prohibited from employing any of the forces under
their respective commands for the purpose of returning fugitives from
service or labor, who may have escaped from any persons to whom such
service or labor is claimed to be due; and any officer who shall be
found guilty by a court-martial of violating this article shall be
dismissed from the service."
The Constitution of the United States expressly declares that all
such persons
"Shall be delivered up on claim of the party to whom such service or
labor may be due." [49]
In this instance Congress passed an act declaring that they shall not
be delivered up on such claim; and, as a penalty for disobedience,
any officer of the army or navy should be dismissed from the service.
Thus an act of Congress directly forbade that which the Constitution
commanded. A more flagrant outrage upon the constitutional obligation
could not be committed.
But, it may be said, a state of war existed. That does not diminish
the crime of the Congress. The commands of the Constitution are
positive, direct, unchanged, and unrelaxed by circumstances. They are
equally in force in a state of war and in a state of peace. The
powers are delegated, and can not be amended or changed by war or
peace. Its words are these:
"This Constitution, and the laws of the United States, which shall be
made in pursuance thereof, shall be the supreme law, and the judges
in every State shall be bound thereby, anything in the Constitution
or laws of any State to the contrary notwithstanding. The Senators
and Representatives before mentioned, and the members of the several
State Legislatures, and all executive and judicial officers, both of
the United States and of the several States, shall be bound by oath
or affirmation to support this Constitution." [50]
It declares itself to be, within its province, the supreme law of the
United States, not merely during the condition of peace, but
continuing through all times and events supreme throughout the Union,
until it should be altered or amended in the manner prescribed.
Another instance of the like flagrant violation of the Constitution
is to be found in the ninth and tenth sections of the confiscation
act previously referred to. The Constitution of the United States in
Article IV, section 3, says:
"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."
It will be seen, by reference to the Constitution, that the first
part of the clause here referred to forbids the discharge of the
fugitive, and the second part commands his delivery to the claimant.
It has just been stated in what manner Congress commanded the claim
for delivery to be repudiated. The "discharge from such service and
labor," in consequence of any State law or regulation, is forbidden.
This is a part of the Constitution, and it is thereby made the duty
of the executive, legislative, and judicial departments of the United
States Government to enforce the prohibition, to make sure that the
fugitive is not discharged by any action of a State.
Will the friends of constitutional liberty believe our assertion that
these acts, the execution of which it was so expressly made the duty
of the United States Government to prevent, that Government itself
did do in the most explicit and effective manner? The Constitution
forbids the discharge; Congress and the Executive, each, not only
commanded the discharge, but, to make it sure and thorough, forbade
the incipiency of an apprehension--not even permitting the shadow of
an occasion for a discharge. Could human ingenuity devise a method
for a more perfect subversion of a constitutional duty? The
provisions of the act are in these words:
"All slaves of persons who shall hereafter be engaged in rebellion
against the Government of the United States, or who shall in any way
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 the forces of the United States, shall be deemed captives
of war, and shall be for ever free of their servitude, and not again
held as slaves."
Again, the next section of the same act says:
"No slave escaping into any State, Territory, or the District of
Colombia from any other State, shall be delivered up, or in any way
impeded or hindered of his liberty, except for crime or some offense
against the laws, unless the person claiming said fugitive shall
first make oath that the person, to whom the labor or service of such
fugitive is alleged to be due, is his lawful owner, and has not borne
arms against the United States in the present rebellion, nor in any
way given aid and comfort thereto." [51]
In this connection it is worth while to read again the words of the
Constitution:
"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."
Let it be observed that there is no limitation, no qualification, no
condition whatever attached to this clause of the Constitution. The
words "no person held to service" included every slave in the United
States. In Article I, section 9, and in Article V, are exceptions
suspending the operation of the general provision. But in this
provision there are none, because it was intended there should be
none. The provision was designed to include every slave, and to be in
force under all circumstances.
Perhaps it may be urged as an objection to this assertion, that the
Confederate States were out of the Union and beyond the protection of
the provisions of the Constitution. This objection can not be
admitted in extenuation of this crime of Congress and the Executive;
for there was, thus far, no act of Congress, nor proclamation of the
President in existence, showing that either of them regarded the
Confederate States in any other position than as States within the
Union, whose citizens were subject to all the penalties contained in
the Constitution, and therefore entitled to the benefit of all its
provisions for their protection. Unhesitatingly it may be said, and
as will be still more apparent farther on in these pages, that all
the conduct of the Confederate States, pertaining to the war,
consisted in just efforts to preserve to themselves and their
posterity rights and protections guaranteed to them in the
Constitution of the United States; and that the actions of the
Federal Government consisted in efforts to subvert those rights,
destroy those protections, and subjugate us to compliance with its
arbitrary will; and that this conduct on their part involved the
subversion of the Constitution and the destruction of the fundamental
principles of liberty. Who is the criminal? Let posterity answer.
[Footnote 46: Constitution of the United States, Article I, section 8.]
[Footnote 47: Constitution of the United States, Article V.]
[Footnote 48: Constitution of the United States, Article IV, section 3,
clause 2.]
[Footnote 49: Constitution of the United States, Article IV, section 2.]
[Footnote 50: Ibid., Article VI.]
[Footnote 51: Laws of the United States, 1862.]