Secession and slavery

Front matter

Glass f 4- $> 3

Book 3 -fe.2J

THE EFFECT OF SECESSION ON THE RELATION OF THE UNITED STATES TO THE SECEDED

Chap. I. Historical Sketch

II. The Direct Consequences resulting from the Act of Secession.

III. Some Radical Views considered.

IV. Tlie Effect of Contract between the seceded

States returning', and the United States. V. The Emancipation Proclamation.

VI. Concluding Summary; also, Postscript on the President's Plan of Reconstruction.

As originally written, the pamphlet contained likewise a chapter entitled, " The Consequences resulting from the War which Secession creates:' But finding- that the insertion of this chapter would make the pamphlet too long, while the chapter itself was too short for an adequate discussion of its subject, I determined to omit it ; and, whether it will be hereafter given to the public in an enlarged form or not. the public will learn in due time.

The pamphlet here presented embodies a discussion of the question, which, more than any other, perplexes, at the present moment, the people of this country. Will the people read ? Will they reflect ? Will they hear a voice which speaks the language of the law, and not the language of the politician ? These are questions which will be all an-

IV INTRODUCTORY NOTE.

swered in the affirmative, before the durable peace we seek, descends to us.

The views which this pamphlet contains, were written out in a somewhat different form before the present civil war had assumed any large proportions. But it was evident that, if published, they would be received with indifference or with scorn by those who should be benefited by them. So the manuscript lay upon my shelves unused. In like manner, this pamphlet, with the exception of the Postscript, has lain by stereotyped for several months, since it was put into this permanent shape in type-metal. Am I still too early ? He who rules all things knows ; I do not. I sent out, in my " Thoughts for the Times," the first dove; but it returned. Will this one come back ? or, if it does, will it bring the olive leaf?

Many readers will object, that this pamphlet is written in a style which lacks gravity, and that it does not so soberly consider serious questions of law as it ought. There are serious legal questions — difficult ones — connected with our present national troubles, but the questions discussed in this pamphlet are of another class. There is, indeed, the serious question, — Shall we obey the law ? but there is no difficulty as to what the law is. Politicians may shed darkness upon the matter ; but posterity will say, that, among the topics handled in these pages, there is no one which deserved a graver consideration than it has here received. And the great question which this nation is answering, in the presence of earth and of heaven, is, not what the law is, not whether the Constitution which our forefathers made is a wise one, not whether the law of our Constitution ought not to be amended ; but it is, whether the people of this country shall continue to put forth falsehood about a Constitution which they will not either amend or obey.

J. P. B.

Boston, 1864.

SECESSION AND SLAVERY.

Chapter I. Historical Sketch

The present is a moment at which, if ever during the war, the public mind may be supposed to be prepared to receive some seeds of what the writer of this pamphlet understands to be truth. It is but a few weeks since he put forth another pamphlet, wherein he showed, that, both in war and in peace, it should be our first aim to obey the law of the land. That pamphlet, entitled "Thoughts for the Times," fell on ears which found little time to listen to such an admonition as this. Was not Policy abroad? Why, then, should we care for Law?

Let us look. There are two kinds of law: the first, and that with which the people of this country are happily more familiar than with the other, is the law of peace; the other, is the law of war. The one, is administered in the civil tribunals of the land ; the other, is administered in that great hall, redolent with the light of peace, wherein, amid the

1* (5)

b SECESSION AND SLAVERY.

roar of rolling musketry and choral cannon noise, the souls of the patriot brave wind wreaths of glory on their brows, and many a weary one ascends to his everlasting rest. Over the civil tribunals, Taney, C. J., and some others, at present, preside ; over this other tribunal presides, at the present moment, Abraham Lincoln, President of the United States.

When the rebellion, which for a long series of years had been coming silently up, culminated into open acts of treason, the government of the United States was being administered, both in its various civil departments, and in those also which control the war-dealing power, by men of the Democratic party in politics. James Buchanan presided, in theory, over the war-arm ; but it was quiescent, and neither he nor anybody else deemed it wise to wake it into action. The civil arm slept with the war-arm ; nor did any considerable number of persons, either in power or out of power, think it well to call this arm into motion to punish treason, or arrest the course of the rebellion. This whole nation despised the law, both the law of war and the law of peace ; and, led by the Democratic party, and not much remonstrated with by the Republican, caused the administrators of both kinds of law to absent themselves from their respective halls, while the halls were pillaged and blackened by assassins of their country.

There is no harm in sometimes looking back- or the past ; perhaps a still further view of it may here do us good.

Advocates of free speech and of the utmost free

HISTORICAL SKETCH. I

dom of action there were then as now ; and these advocates said, — "It is wrong to interfere with men who merely differ from you in politics." So, as the assassins would not check themselves, those who were not assassins — not perceiving the distinction between liberty and license, between walking unrestrained beneath laws which freemen have freely made, and tearing with hands unappointed those laws away — deemed that they must not interfere, the matter being a mere difference in politics!

But while the question of political liberty stood thus, how stood, on the other hand, the question of what may be termed religious liberty ? Let it be remembered, that, from the beginning of things in this country, we — to wit, a large class of our people — have been zealous and humble followers of a certain old and honored Scripture doctrine, which is best known by the name of the Curse of Ham. We have deemed it to be our duty, as heirs of celestial glory, to put forth our terrestrial powers in the divine work of cursing Ham. Knowing that God had cursed Ham, we have esteemed it ours to walk in the heavenly footsteps, so we have cursed Ham. Curse Ham, cursing Ham, cursed Ham ! By force of these three cardinal points, we became the Church of the Cursers of Ham. And as we were diligent workers with the church, and greatly-esteemed members of it, we arose thereby to be saints. But as for our saintships there was no rest, the powers of the outer darkness contending continually agamst us, we became entitled, by the way in which we conducted the combat on our part, to the further appellation of saint* militant

Scarcely can the foot of a saint, who is not militant, find repose on the earth. What, then, could be expected where the foot was of one always militant? Why, there came up, in our case, heresies warring against us. A heretic appeared and said, — u Saints should lay up their treasure, not in negroes, but in justice." How could such a heretic be endured ? They who, when the present rebellion broke out, were the most clamorous for political freedom, exclaimed, at this earlier time, — "Let the heretic be hung ! " Neither had they, when the rebellion had expanded to its full proportions, ceased to cry, " Let the heretic be hung ; " while, even at the present moment, they are clamoring in one breath for the hanging of the heretic ; and, in the next breath, for more of the same freedom through which treason wrought up rebellion into open war. Always, indeed, from the beginning of this heresy, there have been heretics hung by mobs, shot by mobs, tarred and feathered by mobs, and lied about by the respectable portion of the community; but, w T hen the political heresy of murdering republican liberty arose, there was no man found even to lie about such a heretic. It was a different bull which gored in the one case from that which gored in the other.

There was one instance in which a heretic militant — only a few heretics tire militant — undertook the same course of conduct which was afterward imi-

HISTORICAL SKETCH.

tated by the saints. This heretic, with a few followers, stole an arsenal. Thereupon all the powers both of Church and State arose! The lion of war shook his shaggy mane! Judicial justice brought out her two cups, and one pivot, and one beam, and put into the downward cup all her weight! Virginia was herself again ! In majesty came forth the array of arms! Upon the bench also, in majesty, sat the ministers of the civil power! The heretic militant was laid low ! No — he was first swung high, on the gallows ! It was afterward that he was cut down ! And not until he was put away where his palsied fingers could steal no more arsenals, did either the church militant or Virginia give rest to the feet or slumber to the eyes of the ministers of either the war or the civil power ! But when, in later stealings of numerous arsenals, u John Brown's soul was seen still to be marching on," how quietly slept these two great powers which erewhile had jointly executed one entire, fanatical, and heretical stealer of one whole arsenal ! Ah, the church militant is a particular thing — she may steal! The heretic militant is another "thing — he may not steal ! There is a difference between Jeff. Davis and John Brown ! Angels and men ! behold the difference ! Here is wisdom ; look and learn !

Now, while we admit that there is a difference between Brown, the heretic militant, and Davis, the saint militant, — a difference which might justify a diversity of treatment in the two cases, — still for this diversity, as actually exhibited in the conduct of the country, we find no warrant in the Constitution of the United States, or in any law properly existing in any State under the Constitution ; it is all matter pertaining to the higher law, as found among the mysteries of the Church of the Cursers !

Neither let me for a moment pretend, that the religious heresy, even where it assumes the ordinary form and is not militant, is not immeasurably worse than the political heresy of plunging the country into war for the sake of destroying the Constitution and saving the Church.

No ! It is admitted, that even the milder religious heretic is worse (my reader being now a Catholic) than the reviler of the Sacred Presence in the Eucharist ; or (he being a Protestant) than the fulminator of the last Bull ; or (he being a Jew) than the believer in Jesus of Nazareth ; or (he being a Mormon) than the disbeliever in Joseph Smith. All this is fully conceded. Indeed the heretic of whom I am speaking may, at least for the purposes of this argument, be set down as the king of heretics, the same as, in Hiawatha, the sturgeon is set down as the kino; of fishes. And I will concede also, that God has raised up Jeff Davis to slay this heretic, the same as Hiawatha slew the sturgeon.

Still there is one point plain : the course adopted by Davis in conjunction with his followers and compeers, in their attack upon the heretic, was in direct antagonism to, in full violation of, the law of the land. Yet up to the time when the saintly power sent forth from cannon militant the earthly missiles which tore down the flag of our country from Fort Sumter, this nation, in dealing with their saintships, walked in the light of texts of Scripture, or of such other higher gleams as angels hand down to us, and not in the light either of our written Constitution, or of any other recognized earthly law. Indeed, there are still among us large numbers of people who cling to the higher gleams, and despise the lower law of our Constitution.

Let us see what some of these higher gleams, by which we walked, were. One of them was expressed thus : " The government of the United States has no power to coerce a sovereign State." The rabble who make noises, but neither look nor think, were led by the more knowing ones to believe, that this expression was taken, letter for letter, out of that wondrous book of which they had heard, but which they did not expect ever to see, called the "Constitution of the United States."

If you followed up one of these deceivers, he told you, that indeed these words were not in the Constitution, and that the purpose of his harangue was merely to point attention to the fact of their not being there. Well, then, it is admitted that the Constitution does not say, in exact terms, " You may coerce a sovereign State." Suppose it does not ; neither does it, in terms, say, " You may shot your cannon with grape." But it provides, that the President shall be commander-in-chief of the land and naval forces of the United States; it provides for the raising of such forces, and therewith, and by other means mentioned, for the President's faithfully executing the laws and causing them to be obeyed. ■If a State refuses to have her legislators and judges sworn to support the Constitution of the United States, — for so the Constitution directs they shall be sworn, — and if no other available means present themselves, cannot the war-power coerce the State into doing what this " supreme law of the land " declares the State shall do ? The Constitution tells the President what shall be his duty, namely, to " take care that the laws be faithfully executed ; " it puts into his hands the instrument, namely, the whole war-power of the country, with which to do the duty, — " but, no ! " says the deceiver, " he has no right to coerce a sovereign State ! " The sovereign State refuses to obey the laws, the President is given the army and navy, and told he must make the State obey ; he has sworn that he will faithfully perform what is thus enjoined, — "but, no!" screams again the deceiver, "the words, 'he may coerce a sovereign State,' are not in the instrument ; " that is, the country is full of fools who will believe such stuff when knaves tell it to them !

Knaves ! I should have said saints. A saint knows

— who but a saint does ? — that it is expressly written in the Constitution, " Thou mayst coerce a son of Ham ; and, if any man reviles a Curser of Ham, let him be crushed oatr Here, if the Constitution is read aright, it establishes an exact form of religion, which religion consists in cursing Ham. Therefore,

— so the argument runs, — if a " sovereign State," deeming that this cursing of Ham can- be best carried on by tearing the nation in two, the United States has no authority to interfere by coercion to arrest such conduct, since the interference would be

HISTORICAL SKETCH.

an act in conflict with the provision establishing the church. So we come to the question, whether, in truth, the provision whereby the church of the cursers is set supreme over all other things, is really in the lower Constitution of the land, or whether it is only in the higher Constitution of the saints.

Let us look at another of these gleamy upper lights, in whose effulgence we walked. It is this: "The chief-justice of the United States is the commander-in-chief of its armies." Now, though this gleam, as I have said, and repeat, springs from the higher fires, not being found in the Constitution of the United States, demagogues have told to gaping crowds, ever since this war began, that it is taken, stroke by stroke, coruscation by coruscation, — taken in mystic letter, — in body, soul, all, — out of the Constitution. These demagogues have told, that Taney, C. J., is entitled to command our national military forces ; and that, as often as Abraham Lincoln declines to submit his army orders to Taney's revision and countermand, the Constitution is broken, trampled upon, and all the other evil things which a demagogue can name ! But here is a matter involving many considerations of grave import, and I cannot spare space to unfold it further now ; therefore, I pass on with the single remark, that Taney, C. J., has not claimed for himself such power; though, in the Merryman case, 24 Law Reporter, 78,

a case not well put on the part of the military

authorities, — there fell from him some observations somewhat calculated to give the appearance of consent to this higher-law doctrine of the saints on the

14 SECESSION AND SLAVERF.

subject. Whether he will ever regret, or has regretted, that his words were not more guarded, I have no means of knowing ; but, be this as it may, there is, in the case, as properly understood, no sufficient warrant for the much-advocated claim of right to cast the civil power across the track of the war-power, and thereby arrest it in its course. The single fact, — which I have not room here to discuss, — that the case was not put before the judge on its true ground, by the military authorities, alone leaves the decision of no weight when applied to cases put on other and correct ground.

When the rebellion first broke out into war, we had it laid down to us, — here is another of the higher gleams, — that the war, on the part of the United States, must be waged as follows : " The army of the Union," said the gleam, " may march to the field of conflict; there, halt; then it must get the names of the several rebels constituting the opposing army ; next, cause each one to be indicted by a grand jury of his peers ; finally, have each tried before a petit jury, — no,/««%, after this, — shoot ? no — stand by and see the marshal hang the traitors ! " Such, we were assured, was the provision of the Constitution ! Let us look : Art. V. of the Amendments — this is admitted — reads, " No person shall .... be deprived of life, liberty, or property without due process of law;" which words " due process of law " mean — this is likewise admitted — indictment, &c, as just explained. There are other clauses of the instrument which signify also substantially the same thing. Now, was this rule of procedure laid down, in the Constitution, for the guidance of the war power, or of the civil? "For the guidance of both," shouts the demagogue ; and a chorus of fools' voices responds " hurrah ! "

The last expression which I have seen of this demagogical proposition is contained in the protest of Vallandigham against being tried by Gen. Burnside's court-martial. Let me copy it. I find it in the recently published authentic report of the trial. It is as follows :

"Arrested without due 'process of law,' without warrant from any judicial officer [so is every rebel prisoner captured], and now in military prison [so are all the rebel prisoners, except when out on parole], I have been served with a ' charge and specifications ' [so is every rebel spy or other rebel prisoner who is tried after being captured], as in a Court-martial or Military Commission. I am not [nor is Jeff. Davis] in either ' the land or naval forces of the United States, nor in the militia in the actual service of the United States ; ' and therefore [the old argument against the government's right to interfere, by military power, for the suppression of the rebellion] am not triable for any cause, by any such Court, but am subject, by the express terms of the Constitution, to arrest only by due process of law, judicial warrant, regularly issued upon affidavit, and by some officer or court of competent jurisdiction for the trial of citizens, and am now entitled to be tried on an indictment or presentment of a grand jury of such court, to speedy and public trial by an impartial jury of the State of Ohio, to be confronted with witnesses against me, to have compulsory process for witnesses in my behalf, the assistance of counsel for my defence, and evidence and argument according to the common laws and ways of judicial courts."

The remainder of the protest is not material to the present point.

Vallandigham, being retained by the military tribunal for trial, and condemned, notwithstanding the protest, applied to the Circuit Court of the United States for a writ of habeas corpus to set him at liberty. The court, on full hearing of counsel, refused to grant the writ. 1

Now, whether it was a judicious exercise of the war-power to extend the line of its operations so far as Dayton, Ohio ; and whether, when this power captured Vallandigham as a prisoner of war, trying him by court-martial as it does spies and some other classes of prisoners of war, instead of holding them for exchange, it placed its fangs on an enemy or on a friend, — this I do not propose to discuss. But, as we have seen, when Vallandigham appeared before the military tribunal, demagogism found its chance to speak ; and it pronounced, in almost exact terms, the same speech over again which the saintly gleam had employed at the earlier period, in pointing out the way in which loyal stupidity should meet, on the field of conflict, disloyal saintship. And when Vallandigham went thence with his case before the civil tribunal, lo, the heavenly gleam was still with him ;

1 See the full Trial, as recently published in Cincinnati. I cannot but recommend it to the perusal of gentlemen who are engaged in inquiries concerning the law of this subject. The argument of Mr. Perry, who appeared as counsel for Gen. Burnside on the application for the habeas corpus, is particularly instructive; though I do not mean to say how far I concur in his views. Ex-Senator Pugh, who represented Vallandigham, presented fully the cause of his client ; but his argument is subject, at least, to this one observation, that principal points in it had been already, probably unknown to him, decided adversely to his positions by the Supreme Court of the United States. It contains, however, the substance of what could with decency be said on that side of the question, before ? judicial tribunal.

and thus spake the gleam through its entranced demagogism, and said : " I come to you, Judge, from out the tainted airs above, to say, that,' by the laws of the upper realm, where I dwell, this court is supreme over Gen. Burnside and his forces ; here is an order made by the general, the court is commanded to revoke the order." Yet the civil tribunal, not finding the law referred to laid down in the Constitution, did not decide to usurp jurisdiction

over the military power; but the (let the

blank stand there), determined to overrule both tile civil and the military authorities, to revise and correct the proceedings of both courts alike ; and, in order to preserve tranquillity throughout the loyal country, and to rebuke the radicalism of setting up the Constitution above the Church, — to show how loved are the political doctrines which Vallandigham has been putting forth ever since this rebellion broke out, and how much worthier he is esteemed to be than are all his peers, — to testify likewise to how much more he knows than do the generals and the judges, and how much purer of heart he is than they, — to put him, moreover, if possible, in command of generals and above judges, — finally, to check the course of this " unholy war," which is leading men into forgetfulness of the Church, and into too much regard for the law and the Constitution of the country, — nominated him candidate for governor of Ohio!

So we get back to the place whence we started. At the opening of the rebellion, the larger part of the people said, " Away with both the civil and the

2* military powers! These rebels are saints-militant; it would be a violation of the higher law, which is above the Constitution of the United States, to interfere with their saintly course ; let both the military power and the civil sleep. By and by, the military power was awakened by the cannon which shot away the flas; of the Union from Fort Sumter. Then the people who loved the saints, not to say the saints themselves, appealed from the military power, as represented by Lincoln, to the civil power, as represented by Taney. Taney was understood to take sides against Lincoln. From that day downward went up a scream in favor of the civil power. Here, a way was supposed to be found in which the hands of the government could be palsied, and the rebellion and church left to triumph, while the nation was destroyed. " The civil jurisdiction," said the scream, "must be preserved just the same in war as in peace ; the courts must be always active, commanding armies as they do constables and sheriffs ; or our liberties are gone forever ! " At length, in the case of Vallandigham, and some other cases, the civil power refused to rush into the fight against the military; so now, as both the civil arm and the war-arm are lost to the Church, the scream explodes thus : "Let loth arms lie palsied in the dust, or the saint will not succeed in slaying the heretic ? "

I hope I shall not be understood, in these observations, as casting reproach upon those conscientious men who, instead of reading the Constitution for themselves, blindly follow unscrupulous leaders ; and so believe, what they are told, that the Constitution says, — « The United States shall not coerce a State," — "The judges, and not the President, shall command the army and navy," — " The army may indict, and the like, but must not shoot," — together with the rest of the stuff wherewith demagogues, who want the votes of the saints, undertake to beguile also the sinners.

It is a question of theology, which I do not mean to discuss, whether we may not play false for the glory of the church. Let us admit that we may. Still, if we turn to the Constitution of the United States, we shall search this instrument in vain to find in it the provision authorizing such a procedure in political and governmental matters.

The result to which we come is this : It may be our higher-law, religious duty, as Cursers of Ham, to do one thing, or another thing ; but, as citizens of the United States, it is our lower-law duty to look into the Constitution of the United States for ourselves, take no demagogue's word as to what is in it ; read it ; then obey. In the following chapters, I shall endeavor to give some assistance to such persons, whether lawyers or laymen, as propose to read the Constitution for themselves, in order to understand what is our present relation to the seceded States and to slavery therein. I shall not have occasion to ask my readers to reject any doctrine ever held by any court, or any judge, or any writer on constitutional law; or, indeed, by anybody else, unless we may except some of the demagogues of the present day, whose religious duties, as Cursers of Ham, or whose aspirations after the heaven of office wherewith the church promises to reward her followers, have led them to deny the conclusions to which I would conduct my readers, in such terms as possibly to include also some of the premises ; though of this exception I am not sure. On the contrary, were I to discuss the subject much more at length than I intend in these pages, I should have only to enforce the doctrines which have already been laid down by the judiciary, by congress, and by writers on constitutional law who have gone before me.

The present pamphlet does not profess to contain a complete juridical discussion of the entire subject. This fuller discussion I reserve for a book, wherein I propose to consider, as a commentator on the law, the several questions of constitutional, and some of the questions of statutory and international law, involved, whether as cause or attendant, in our present civil war. The doctrines of this pamphlet are principally drawn, as its title-page indicates, from the decisions of the highest court known under our Constitution, the Supreme Court of the United States. Though they are put forth in a form semipopular, they are believed to be as legally exact as if they were dressed in the ordinary garb of a professional treatise. There are questions connected with our present subject, upon which judicial decision has not yet passed. I have avoided the discussion of these questions in order that in this pamphlet nothing might be set down which is not settled law, — settled by the Supreme Court of the United States. Whether there are not parts of our law, — in fact, parts of our Constitution, — the final as well