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CHAPTER XXV. ForcedEmancipation.—Purposes of the United States Government at the
Commencement of I862.—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; bow 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 1S62 it was the purpose of the United States Govermnent 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 s, 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 2S, 1856, says: "The
prevalence of Christianity and the progress of civilization have
greatly mitigated the severity of the ancient mode of prosecuting . . . 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, intrench-melt, 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 at-tainted." 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 bad 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."[47] 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 with-out due
process of law; nor shall private property be taken for public use
without just compensation." 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 prop-erty 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 Con-stitution 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 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."[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 further on in these s, 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. |
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