The war powers of the President : and the legislative powers of Congress in relation to rebellion, treason and slavery

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Preface To The Second Edition

WAR POWERS OF THE PRESIDENT, AND LEGISLATIVE POW- ERS OF CONGRESS, IN RELATION TO REBELLION, TREASON, AND SLAVERY.

THE following pages were not originally intended for publication, but were written by the author for his private use. He has printed them at the request of a few friends, to whom the opinions therein expressed had been communicated ; and he is not unaware of sevei-al errors of the press, and of some inaccuracies of expression, which, in one or two instances, at least, modify the sense of the statements intended to be made. The work having been printed, such errors can conveniently be corrected only in the "errata" This publication was principally written in the spring of 1862, the chapter on the operation of the Confiscation Act of July 17th, 1862, having been subsequently added. Since that time President Lincoln has issued his Emancipation Proclamation, and several military orders, operating in the Free States, under which questions have arisen of the gravest importance. The views of the author on these subjects have been expressed in several recent public addresses ; and, if circumstances permit, these subjects may be discussed in a future addition to this pamphlet.

To prevent misunderstanding, the learned reader is requested ' to observe the distinction between emancipating or confiscating slaves, and abolishing the laws which sustain slavery in the Slave

Preface

States. The former merely takes away slaves from the possession and control of their masters ; the latter deprives the inhabitants of those States of the lawful right of obtaining, by purchase or otherwise, or of holding slaves. Emancipation or confiscation operates only upon the slaves personally; but a law abolishing the right to hold slaves, in the Slave States, operates on all citizens residing there, and effects a change of local law. If all the horses now in Massachusetts were to be confiscated, or appropriated by government to public use, though this proceeding would change the legal title to these horses, it would not alter the laws of Massachusetts as to personal property; nor would it deprire our citizens of the legal right to purchase and use other horses.

The acts for confiscation or emancipation of enemy's slaves, and the President's Proclamation of the 22d of September, do not abolish slavery as a legal institution in the States ; they act upon persons held as slaves ; they alter no local laws in any of the States ; they do not purport to render slavery unlawful ; they merely seek to remove slaves from the control of rebel masters. If slavery shall cease by reason of the legal emancipation of slaves, it will be because slaves are removed; nevertheless, the laws that sanction slavery may remain in fall force. The death of all the negroes on a plantation would result in a total loss to the owner of so much "property;" but that loss would not prevent the owner from buying other negroes, and holding them by slave laws. Death does not interfere with the local law of property. Emancipation and confiscation, in like manner, do not necessarily interfere with local law establishing slavery.

The right to liberate slaves, or to remove the condition or status of slavery, as it applies to all slaves living at any one time, or the right to abolish slavery in the sense of liberating all existing slaves, is widely different and distinct from the right of repealing or annulling the laws of States which sanction the holding of slaves. State slave laws may or may not be beyond the reach of the legislative powers of Congress ; but if they are, that fact

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would not determine the question as to the right to emancipate, liberate, or to change the relation to their masters of slaves now living / nor the question as to the right of abolishing slavery, in the sense in which this expression is used when it signifies the liberation of persons now held as slaves, from the operation of slave laws ; while these laws are still left to act on other persons who may be hereafter reduced to slavery under them.

It is not denied that the powers given to the various departments of government are in general limited and defined ; nor is it to be forgotten that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Const. Amendment, Art. X.) But the powers claimed for the President and for Congress, in this essay, are believed to be delegated to them respectively under the constitution, expressly or by necessary implication.

The learned reader will also notice, that the positions taken in this pamphlet do not depend upon the adoption of the most liberal construction of the constitution, Art. I. Sect. 8, Cl. l,which is deemed by eminent statesmen to contain a distinct, substantive power to pass all laws which Congress shall judge expedient " to provide for the common defence and general welfare" This construction was held to be the true one by many of the original framers of the constitution and their associates ; among them was George Mason of Virginia, who opposed the adoption of the constitution in the Virginia convention, because, among other reasons, he considered that the true construction. (See Elliott's Debates, vol. ii. 327, 328.) Thomas Jefferson says, (Jefferson's Correspondence, vol. iv. p. 306,) that this doctrine was maintained by the Federalists as a party, while the opposite doctrine was maintained by the Republicans as a party. Yet it is true that several Federalists did not adopt that view, but Washington, Adams, Jefferson, Madison, Monroe, Hamilton, Mason, and others, were quite at variance as to the true interpretation of that much contested clause. Southern

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statesmen, drifting towards the state-rights doctrines, as time passed on, have generally adopted the strictest construction of the language of that clause ; but it has not yet been authoritatively construed by the Supreme Court. Whatever may be the extent or limitation of the power conveyed in this section, it is admitted by all that it contains the power of imposing taxes to an unlimited amount, and the right to appropriate the money so obtained to " the common defence and public welfare." Thus it is obvious, that the right to appropriate private property to public use, and to provide compensation therefor, as stated in Chapter I. ; the power of Congress to confiscate enemy's property as a belligerent right ; the power of the President, as commander-in-chief, as an act of war, to emancipate slaves ; or the power of Congress to pass laws to aid the President, in executing his military duties, by abolishing slavery, or emancipating slaves, under Art. I. Sect. 8, Cl. 18, as war measures, essential to save the country from destruction, do not depend upon the construction given to the disputed clause above cited.

It will also be observed, that a distinction is pointed out in these pages between the legislative powers of Congress, in time of peace, and in time of war. Whenever the words " the common defence " are used, they are intended to refer to a time, not of constructive war, but of actual open hostility, which requires the nation to exert its naval and military powers in self-defence, to save the government and the country from destruction.

The Introduction, and Chapters I. and VIII., shoiild be read in connection, as they relate to the same subject; and the reader will bear in mind that, in treating of the powers of Congress in the first chapter, it is not asserted that Congress have, without any public necessity jiistifying it, the right to appropriate private property of any kind to public use. There must always be a justifiable cause for the exercise of every delegated power of legislation.

It is not maintained in these pages that Congress, in time of peace, has the right to abolish slavery in the States, by passing

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laws rendering the holding of any slaves therein illegal, so long as slavery is merely a household or family, or domestic institution • and so long as its existence and operation are confined to the States where it is> found, and concern exclusively the domestic affairs of the Slav'e States ; and so long as it does not conflict with or affect the rights, interests, duties, or obligations which appertain to the affairs of the nation, nor impede the execution of the laws and constitution of the United States, nor conflict with the rights of citizens under them. Yet cases might arise in which, in time of peace, the abolishment of slavery might be necessary, and therefore would be lawful, in order to enable Congress to cany into effect some of the express provisions of the constitution, as for example, that contained in Art. IV. Sect. 4, 01. 1, in which the United States guarantee to every State in this Union a republican form of government ; or that contained in Art. IV. Sect. 2, 01. 1, which provides that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.

It is asserted in this essay that, when the institution of slavery no longer concerns only the household or family, and no longer continues to be a matter exclusively appertaining to the domestic affairs of the State in which it exists ; when it becomes a potent, operative, and efficient instrument for carrying on war against the Union, and an important aid to the public enemy; when it opposes the national military powers now involved in a gigantic rebellion ; when slavery has been developed into -a vast, an overwhelming war power, which is actually used by armed traitors for the overthrow of government and of the constitution ; when it has become the origin of civil war, and the means by which hostilities are maintained in the deadly struggle of the Union for its own existence; when a local institution is perverted so as to compel three millions of loyal colored subjects to become belligerent traitors because they are held as slaves of disloyal masters, — then indeed slavery has become an

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affair most deeply affecting the national welfare and common defence, and has subjected itself to the severest enforcement of those legislative and military powers, to which alone, under the constitution, the people must look t<j save themselves from ruin. In the last extremity of our contest, the question must be decided whether slavery shall be rooted up and extirpated, or our beloved country be torn asunder and given up to our conquerors, our Union destroyed, and our people dishonored? Are any rights of property, or any claims, which one person can assume to have over another, by whatever local law they may be sanctioned, to be held, by any just construction of the constitution, as superior to the nation's right of self-defence ? And can the local usage or law of any section of this country override and break down the obligation of the people to maintain and perpetuate their own government? Slavery is no longer local or domestic after it has become an engine of war. The country demands, at the hands of Congress and of the President, the exercise of every power they can lawfully put forth for its destruction, not as an object of the war, but as a means of terminating the rebellion, if by destroying slavery the republic may be saved. These considerations and others have led the author to the conclusion stated in the following pages, "that Congress has the right to abolish slavery, when in time of war its abolishment is necessary to aid the commander-in-chief in maintaining the '•common defence?" -™- ™-

OF THE

UNITED STATES OF AMERICA.

Introduction

THE PUEPOSE FOR WHICH IT WAS FOUNDED.

THE Constitution of the United States, as declared in the preamble, was ordained and established by the people, " in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

HOW IT HAS BEEN VIOLATED.

A handful of slave-masters have broken up that Union, have overthrown justice, and have destroyed domestic tranquillity. Instead of contributing to the common defence and public welfare, or securing the blessings of liberty to themselves and their posterity, they have waged war upon their country, and have attempted to establish, over the ruins of the Kepublic, an aristocratic government founded upon Slavery.

"THE INSTITUTION" vs. THE CONSTITUTION.

It is the conviction of many thoughtful persons, that slavery has now become practically irreconcilable with republican institutions, and that it constitutes, at the present time, the chief obstacle to the restoration of the Union. They know that slavery can triumph only by overthrowing the republic; they believe that the republic can triumph only by overthrowing slavery,

» THE PRIVILEGED CLASS."

Slaveholding communities constitute the only u privileged class " of persons who have been admitted into the Union. They alone have the right to vote for their property as well as for themselves. In the free States citizens vote only for themselves. The former are allowed to count, aS part of their representative numbers, three fifths of all slaves. If this privilege, which was accorded only to the original States, had not been extended (contrary, as many jurists contend, to the true intent and meaning of the constitution) so as to include other States subsequently formed, the stability of government would not have been seriously endangered by the temporary toleration of this " institution," although it was inconsistent with the principles which that instrument embodied, and revolting to the sentiments cherished by a people who had issued to the world the Declaration of Independence, and had fought through the revolutionary war to vindicate and maintain the rights of man.

UNEXPECTED GROWTH OF SLAVERY.

The system of involuntary servitude, which had received, as it merited, the general condemnation of the leading southern and northern statesmen of the country, — of those who were most familiar with its evils, and of all fair-minded persons throughout the world, — seemed, at the time when our government was founded, about to vanish and disappear from this continent, when the spinning jenny of Crompton, the loom of Wyatt, the cotton gin of Whitney, and the manufacturing capital of England, combined to create a new and unlimited demand for that which is now the chief product of southern agriculture. Suddenly, as if by magic, the smouldering embers of slavery were rekindled, and its flames, like autumnal fires upon the prairies, have rapidly swept over and desolated the southern states; and, as that local, domestic institution, which seemed so likely to pass into an ignominious and unlamented grave, has risen to claim an unbounded empire, hence the present generation is called upon to solve questions and encounter dangers not foreseen by our forefathers.

SLAVERY ABOLISHED BY EUROPEAN GOVERNMENTS.

In other countries the scene has been reversed. France, with unselfish patriotism, abolished slavery in 1794; and though Napoleon afterwards reestablished servitude in most of the colonies, it was finally abolished in 1848. England has merited and received her highest tribute of honor from the enlightened nations of the world for that great act of Parliament in 1833, whereby she proclaimed universal emancipation.

In 1844, King Oscar informed the Swedish states of his desire to do away with involuntary servitude in his dominions; in 1846 the legislature provided the pecuniary means for carrying that measure into effect ; and now all the slaves have become freemen.

Charles VIII., King of Denmark, celebrated the anniversary of the birth of the Queen Dowager by abolishing slavery in his dependencies, on the 28th of July, 1847.

In 1862, Russiahas consummated the last and grandest act of emancipation of modern times.*

While Europe has thus practically approved of the leading principle of 'the American constitution, as founded on justice, and as essential to public welfare, the United States, as represented by the more recent administrations, have practically repudiated and abandoned it. Europe, embarrassed by conservative and monarchical institutions, adopts the preamble to that instrument, as a just exposition of the true objects for which governments should be established, and accordingly abolishes slavery — while, in this country, in the mean time, slavery, having grown strong, seeks by open rebellion to break up the Union, and to abolish republican democracy.

SLAVEKT IN 1802 NOT SLAVERY IN 1788.

However harmless that institution may have been in 1788, it is now believed by many, that, with few but honorable exceptions, the slave-masters of the present day, the privileged class, cannot, or will not, conduct themselves so as to render it longer possible, by peaceable association with them, to preserve " the Union," to * establish justice," u insure domestic tranquillity, the general welfare, the common defence, or the blessings of liberty to ourselves or our posterity." And since the wide-spread but secret conspiracies of traitors in the

* To the above examples we must add that of the Dutch West Indies, •where the law emancipating the slaves goes into operation in July, 1863.

slave states for the last thirty years ; their hatred of the Union, and determination to destroy it; their abhorrence of republican institutions, and of democratic government ; their preference for an " oligarchy with slavery for its corner stone," have become known to the people, — their causeless rebellion ; their seizure of the territory and property of the United States ; their siege of Washington; their invasion of States which have refused to join them ; their bitter, ineradicable, and universal hatred of the people of the free States, and of all who are loyal to the government, have produced a general conviction that slavery (which alone has caused these results, and by which alone the country has been brought to the verge of ruin) must itself be terminated; and that this "privileged class " must be abolished; otherwise the unity of the American people must be destroyed, the government overthrown, and constitutional liberty abandoned.

To secure domestic tranquillity is to make it certain by controlling power. It cannot be thus secured while a perpetual uncontrollable cause of civil war exists. The cause, the means, the opportunity of civil war must be removed ; the perennial fountain of all our national woes must be destroyed ; otherwise " it will be in vain to cry, Peace ! peace ! There is no peace."

ARE SLAVEHOLDERS ARBITERS OF PEACE AXD WAR?

Is the Union so organized that the means of involving the whole country in ruin must be left in the hands of a small privileged class, to be used at their discretion ? Must the blessing of peace and good government be dependent upon the sovereign will and pleasure of a handful of treasonable and unprincipled slave-masters ?

Has the constitution bound together the peaceable citizen with the insane assassin, so that his murderous knife cannot lawfully be wrenched from his grasp even in self-defence ?

. If the destruction of slavery be necessary to save the country from defeat, disgrace, and ruin, — and if, at the same time, the constitution guarantees the perpetuity of slavery, whether the country is saved or lost, — it is time that the friends of the government should awake, and realize their awful destiny. If the objects for which our government. was founded can lawfully be secured only so far as they do not interfere with the pretensions of slavery, we must admit that the interests of slave-masters stand first, and the welfare of the people of the United States stands last, under the guarantees of the constitution. If the Union, the constitution, and the laws, like Laocoon and his sons, are to be strangled and crushed, in order that the unrelenting serpent may live in triumph, it is time to determine which of them is most worthy to be saved. Such was not the Union formed by our forefathers. Such is not the Union the people intend to preserve. They mean to uphold a Union, under the constitution, interpreted by common sense • a government able to attain results worthy of a great and free people, and for which it was founded; a republic, representing the sovereign majesty of the whole nation, clothed with ample powers to maintain its supremacy forever. They mean that liberty and union shall be " one and inseparable."

WHY SLAVERY, THOUGH HATED, WAS TOLERATED.

It is true, that indirectly, and for the purpose of a more equal distribution of direct taxes, the framers of the conjr

stitution tolerated, while they condemned slavery; but they tolerated it because they believed that it would soon disappear. They even refused to allow the charter of their own liberties to be polluted by the mention of the word " slave." Having called the world to witness their heroic and unselfish sacrifices for the vindication of their own inalienable rights, they could not, consistently with honor or self-respect, transmit to future ages the evidence that some of them had trampled upon the inalienable rights of others.

RECOGNITION OF SLAVERY NOT INCONSISTENT WITH THE PERPE- TUITY OF THE REPUBLIC.

Though slavery was thus tolerated by being ignored, we should dishonor the memory of those who organized that government to suppose that they did not intend to bestow upon it the power to maintain its own authority — the right to overthrow or remove slavery, or whatever might prove fatal to its permanence, or destroy its usefulness. We should discredit the good sense of the great people who ordained and established it, to deny that they bestowed upon the republic, created by and for themselves, the right, the duty, and the powers of self-defence. For self-defence by the government was only maintaining, through the people's agents, the right" of the people to govern themselves.

DISTINCTION BETWEEN THE OBJECTS AND THE MEANS OF WAR.

We are involved in a war of self-defence.

It is not the object and purpose of our hostilities to lay waste lands, burn bridges, break up railroads, sink ships, blockade harbors, destroy commerce, capture, imprison, wound, or kill citizens ; to seize, appro- 2 priate, confiscate, or destroy private property; to interfere with families, or domestic institutions; to remove, employ, liberate, or arm slaves ; to accumulate national debt, impose new and burdensome taxes ; or to cause thousands of loyal citizens to be slain in battle. But, as means of carrying on the contest, it has become necessary and lawful to lay waste, burn, sink, destroy, blockade, wound, capture, and kill ; to accumulate debt, lay taxes, and expose soldiers to the peril of deadly combat. Such are the ordinary results and incidents of war. If, in further prosecuting hostilities, the liberating, employing, or arming of slaves shall be deemed convenient for the more certain, speedy, and effectual overthrow of the enemy, the question will arise, whether the constitution prohibits those measures as acts of legitimate war against rebels, who, having abjured that constitution and having openly in arms defied the government, claim for themselves only the rights of belligerents.

It is fortunate for America that securing the liberties of a great people by giving freedom to four millions of bondmen would be in accordance with the dictates of justice and humanity. If the preservation of the Union required the enslavement of four millions of freemen, very different considerations would be presented.

LIBERAL AND STRICT CONSTRUCTIONISTS.

The friends and defenders of the constitution of the United States of America, ever since its ratification, have expressed widely different opinions regarding the limitation of the powers of government in time of peace, no less than in time of war. Those who have contended for the most narrow and technical construetion, having stuck to the letter of the text, and not appreciating the spirit in which it was framed, are opposed to all who view it as only a frame of government, a plan-in-outline, for regulating the affairs of an enterprising and progressive nation. Some treat that frame of government as though it were a castriron mould, incapable of adaptation or alteration — as one which a blow would break in pieces. Others think it a hoop placed around the trunk of a living tree, whose growth must girdle the tree, or burst the hoop. But sounder judges believe that it more resembles the tree itself, — native to the soil that bore it, — waxing s.trong in sunshine and in storm, putting forth branches, leaves, and roots, according to the laws of its own growth, and flourishing with eternal verdure. Our constitution, like that of England, contains all that is required to adapt itself to the present and future changes and wants of a free and advancing people. This great nation, like a distant planet in the solar system, may sweep round a wide orbit ; but in its revolutions it never gets beyond the reach of the central light. The sunshine of constitutional law illumines its pathway in all its changing positions. We have not yet arrived at the " dead point" where the hoop must burst — the mould be shattered — the tree girdled — or the sun shed darkness rather than light. By a liberal construction of the constitution, our government has passed through many storms unharmed. Slaveholding States, other than those whose inhabitants originally formed it, have found their way into the Union, notwithstanding the guarantee of equal rights to all. The territories of Florida and Louisiana have been purchased from European powers. Conquest has added a nation to our borders. The purchased and the conquered regions are now legally a part of. the United States. The admission of new States containing a privileged class, the incorporation into our Union of a foreign people, are held to be lawful and valid by all the courts of the country. Thus far from the old anchorage have we sailed under the flag of " public necessity," " general welfare," or " common defence." Yet the great charter of our political rights "still lives;" and the question of to-day is, whether that instrument, which has not prevented America from acquiring one country by purchase, and another by conquest, will permit her to save herself?

POWERS WE SHOULD EXPECT TO FIND.

If the ground-plan of our government was intended to be more than a temporary expedient, — if it was designed, according to the declaration of its authors, for a perpetual Union, — then it will doubtless be found, upon fair examination, to contain whatever is essential to carry that design into effect. Accordingly, in addition to provisions for adapting it to great changes in the situation and circumstances of the people by amendments, we find that powers essential to its own perpetuity are vested in the executive and legislative departments, to be exercised according to their discretion, for the good of the country — powers which, however dangerous, must be intrusted to every government, to enable it to maintain its own existence, and to protect the rights of the people. Those who founded a goverment for themselves intended that it should never be overthrown ; nor even altered, except by those under whose authority it was established. Therefore they gave to the President, and to Congress, the means essential to the preservation of the republic, but none for its dissolution.

LAWS FOR PEACE, AND LAWS FOR WAR.

Times of peace have required the passage of numerous statutes for the protection and development of agricultural, manufacturing, and commercial industry, and for the suppression and punishment of ordinary crimes and offences. A state of general civil war in the United States is, happily, new and unfamiliar. These times have demanded new and unusual legislation to call into action those powers which the constitution provides for times of war.

Leaving behind us the body of laws regulating the rights, liabilities, and duties of citizens, in time of public tranquillity, we must now turn our attention to the KESERVED and HITHERTO UNUSED powers contained in the constitution, which enable Congress to pass a body of laws to regulate the rights, liabilities, and duties of citizens in time of war. We must enter and explore the arsenal and armory, with all their engines of defence, enclosed, by our wise forefathers for the safety of the republic, within the old castle walls of that constitution ; for now the garrison is summoned to surrender ; and if there be any cannon, it is time to unlirnber and run them out the port-holes, to fetch up the hot shot, to light the match, and hang out our banner on the outer walls.

THE UNION IS GONE FOREVER IF THE CONSTITUTION DENIES THE POWER TO SAVE IT.

The question whether republican constitutional government shall now cease in America, must depend upon the construction given to these hitherto unused powers. Those who desire to see an end of this government will deny that it has the ability to save itself. Many new inquiries have arisen in relation to the existence and limitation of its powers. Must the successful prosecution of war against rebels, the preservation of national honor, and securing of permanent peace, — if attainable only by rooting out the evil which caused and maintains the rebellion, — be eifected by destroying rights solemnly guaranteed by the constitution we are defending? If so, the next question will be, whether the law of self-defence and overwhelming necessity will not justify the country in denying to rebels and traitors in arms whatever rights they or their friends may claim under a charter which they have repudiated, and have armed themselves to overthrow and destroy ? Can one party break the contract, and justly hold the other party bound by it? Is the constitution to be so interpreted that rebels and traitors cannot be put down ? Are we so hampered, as some have asserted, that even if war end in reestablishing the Union, and enforcing the laws over all the land, the results of victory will be turned against us, and the conquered enemy may then treat us as though they had been victors-? Will vanquished criminals be able to resume their rights to the same political superiority over the citizens of Free States, which, as the only " privileged class," they have hitherto enjoyed ?