The agitation of this subject brought out another still more alarming usurpation in Congress, and showed that the majority were ready to throw aside the last fragments of the Constitution in order to secure our subjugation. The argument for this usurpation was thus framed: Assuming that the state of the "nation" was one of general hostility, and that, being so involved, it possessed the power of self-defense, it was asserted that the supreme power of making and conducting war was expressly placed in Congress by the Constitution. "The whole powers of war are vested in Congress."--("United States Supreme Court, Brown vs. United States," 1 Cranch.) There is no such power in the judiciary, and the Executive is simply "commander-in-chief of the army and navy"; all other powers not necessarily implied in the command of the military and naval forces are expressly given to Congress.
The theory was that the contingency of actual hostilities suspended the Constitution and gave to Congress the sovereign power of a nation creating new relations and conferring new rights, imposing extraordinary obligations on the citizens, and subjecting them to extraordinary penalties. There is, under that view, therefore, no limit on the power of Congress; it is invested with the absolute powers of war--the civil functions of the Government are, for the time being, in abeyance when in conflict, and all State and "national" authority subordinated to the extreme authority of Congress, as the supreme power, in the peril of external or internal hostilities. The ordinary provisions of the Constitution peculiar to a state of peace, and all laws and municipal regulations, were to yield to the force of martial law, as resolved by Congress. This was designated as the "war power" of the United States Government.
I should deem an apology to be due to my readers, in offering for their perusal such insane extravagances, under a constitutional Government of limited powers, had not this doctrine been adopted by the United States Government, and subsequently made the basis of some most revolutionary measures for the emancipation of the African slaves and the enslavement of the free citizens of the South. One must allow that the Chamber of Deputies of the French National Assembly of 1798 had some claims to a respectable degree of political virtue when compared with the Thirty-seventh Congress and the Executive of the United States.
The specious argument for this tremendous and sweeping usurpation, designated as the "war power," as presented by its adherents, may be stated in a few words, thus: The Constitution confers on Congress all the specific powers incident to war, and then further authorizes it "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." The words are these:
"Congress shall have power to declare war; to grant letters of marque and reprisal; to make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." [46]
It will be seen that this unlimited, despotic power was claimed for Congress in the conduct of the war under the last clause above, viz., "to make all laws which," etc; whereas no one familiar with the rules of legal interpretation will seriously contend that the powers of Congress are one atom greater by the insertion of this provision than they would have been if it had not appeared in the Constitution. The delegation of a power gives the incidental means _necessary_ for its execution.
Another step in the usurpations begun for the destruction of slavery was the passage by Congress of an act for the emancipation of slaves in the District of Columbia. The act emancipated all persons of African descent held to service within the District, immediately upon its passage. Those owners of slaves who had not sympathized with us were allowed ninety days to prepare and present to commissioners, appointed for that purpose, the names, ages, and personal description of their slaves, who were to be valued by commissioners. No single slave could be estimated to be worth more than three hundred dollars.
One million dollars was appropriated to carry the act into effect.
All claims were to be presented within ninety days after the passage of the act, and not thereafter; but there was no saving clause for minors, _femmes covert_, insane or absent persons. On his approval of the act, the Executive of the United States sent a message to Congress, in which he said:
"I have never doubted the constitutional authority of Congress to abolish slavery in the District, and I have ever desired to see the national capital freed from the institution in some satisfactory way.
Hence there never has been in my mind any questions upon the subject, except those of expediency, arising in view of all the circumstances."
For the previous twenty-five or thirty years the subject had again and again been presented in Congress, and was always rejected. One of the incidents that led to our withdrawal from the Union was the apprehension that it was the intention of the United States Government to violate the constitutional right of each State to adopt and maintain, to reject or abolish slavery, as it pleased. This step showed the justness of our apprehensions.
Among the rights guaranteed to every citizen of the United States, including the District of Columbia, was the right of property. No one could be deprived of his property by the Government, except in the manner prescribed and authorized by the Constitution. Its words are these:
"No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." [47]
Whenever it was necessary in the administration of affairs that the Government should take private property for public use, it had the right to take that private property on the condition of making compensation for it, and on no other condition. Also, it could not be taken except for public use, even by making just compensation for it; nor could it be taken to be destroyed. The simple and sole condition on which the inviolability of private property could be broken by the Government itself was, that it was necessary for public use.
Otherwise, there was no constitutional right on the part of the Government to take the property at all.
Again, this property, thus necessary, must be taken by due process of law. The Government had not the right to declare the mode, and arbitrarily fix the limit of price which should be paid. The negro could be taken only as other property, even admitting that he could be taken for emancipation. The due process of law required that the citizen's property should be appraised judicially. A court must proceed judicially in every case, summon a jury, appoint commissioners, and, under the supervision and sanction of the court, the valuation of the slave by them must proceed as it does in relation to any other property of the citizen that might be taken by the lawful exercise of the power of Congress or of the United States Government. Thus it will be seen that by this usurpation of power the Constitution was violated, not only by taking private property for other purposes than for public use, but in the neglect to observe the due process of law which the Constitution required.
The next step in the usurpation of power for the destruction of the right of citizens to hold property in slaves was the passage by Congress of an act which declared that, after its passage--
"There shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States, otherwise than in the punishment of crimes," etc.
The subject had been brought forward at every session of Congress for a number of years, and was uniformly resisted by the advocates of equality among the States. We claimed an equal right with the other States to the occupation and settlement of the Territories which were the common property of the Union; and that any infringement of this right was not only a violation of the spirit of the Constitution, but destructive of that equality of the States so necessary for the maintenance of their Union. We further claimed our right under this express provision of the Constitution:
"The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular States." [48]
The obstinate resistance of the consolidation school to our views was an evidence of their aggressive purposes, and justified still further our apprehensions of their intention to violate our constitutional rights.
Another step taken to accomplish the emancipation of our slaves was the passage by Congress of an act making an additional article of war for the government of the army of the United States. It was in these words:
"All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due; and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service."
The Constitution of the United States expressly declares that all such persons
"Shall be delivered up on claim of the party to whom such service or labor may be due." [49]
In this instance Congress passed an act declaring that they shall not be delivered up on such claim; and, as a penalty for disobedience, any officer of the army or navy should be dismissed from the service.
Thus an act of Congress directly forbade that which the Constitution commanded. A more flagrant outrage upon the constitutional obligation could not be committed.
But, it may be said, a state of war existed. That does not diminish the crime of the Congress. The commands of the Constitution are positive, direct, unchanged, and unrelaxed by circumstances. They are equally in force in a state of war and in a state of peace. The powers are delegated, and can not be amended or changed by war or peace. Its words are these:
"This Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution." [50]
It declares itself to be, within its province, the supreme law of the United States, not merely during the condition of peace, but continuing through all times and events supreme throughout the Union, until it should be altered or amended in the manner prescribed.
Another instance of the like flagrant violation of the Constitution is to be found in the ninth and tenth sections of the confiscation act previously referred to. The Constitution of the United States in Article IV, section 3, says:
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor."
It will be seen, by reference to the Constitution, that the first part of the clause here referred to forbids the discharge of the fugitive, and the second part commands his delivery to the claimant.
It has just been stated in what manner Congress commanded the claim for delivery to be repudiated. The "discharge from such service and labor," in consequence of any State law or regulation, is forbidden.
This is a part of the Constitution, and it is thereby made the duty of the executive, legislative, and judicial departments of the United States Government to enforce the prohibition, to make sure that the fugitive is not discharged by any action of a State.
Will the friends of constitutional liberty believe our assertion that these acts, the execution of which it was so expressly made the duty of the United States Government to prevent, that Government itself did do in the most explicit and effective manner? The Constitution forbids the discharge; Congress and the Executive, each, not only commanded the discharge, but, to make it sure and thorough, forbade the incipiency of an apprehension--not even permitting the shadow of an occasion for a discharge. Could human ingenuity devise a method for a more perfect subversion of a constitutional duty? The provisions of the act are in these words:
"All slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the Government of the United States; and all slaves of such persons found or being within any place occupied by rebel forces and afterward occupied by the forces of the United States, shall be deemed captives of war, and shall be for ever free of their servitude, and not again held as slaves."
Again, the next section of the same act says:
"No slave escaping into any State, Territory, or the District of Colombia from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime or some offense against the laws, unless the person claiming said fugitive shall first make oath that the person, to whom the labor or service of such fugitive is alleged to be due, is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto." [51]
In this connection it is worth while to read again the words of the Constitution:
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
Let it be observed that there is no limitation, no qualification, no condition whatever attached to this clause of the Constitution. The words "no person held to service" included every slave in the United States. In Article I, section 9, and in Article V, are exceptions suspending the operation of the general provision. But in this provision there are none, because it was intended there should be none. The provision was designed to include every slave, and to be in force under all circumstances.
Perhaps it may be urged as an objection to this assertion, that the Confederate States were out of the Union and beyond the protection of the provisions of the Constitution. This objection can not be admitted in extenuation of this crime of Congress and the Executive; for there was, thus far, no act of Congress, nor proclamation of the President in existence, showing that either of them regarded the Confederate States in any other position than as States within the Union, whose citizens were subject to all the penalties contained in the Constitution, and therefore entitled to the benefit of all its provisions for their protection. Unhesitatingly it may be said, and as will be still more apparent farther on in these pages, that all the conduct of the Confederate States, pertaining to the war, consisted in just efforts to preserve to themselves and their posterity rights and protections guaranteed to them in the Constitution of the United States; and that the actions of the Federal Government consisted in efforts to subvert those rights, destroy those protections, and subjugate us to compliance with its arbitrary will; and that this conduct on their part involved the subversion of the Constitution and the destruction of the fundamental principles of liberty. Who is the criminal? Let posterity answer.
[Footnote 46: Constitution of the United States, Article I, section 8.]
[Footnote 47: Constitution of the United States, Article V.]
[Footnote 48: Constitution of the United States, Article IV, section 3, clause 2.]
[Footnote 49: Constitution of the United States, Article IV, section 2.]
[Footnote 50: Ibid., Article VI.]
[Footnote 51: Laws of the United States, 1862.]
CHAPTER XXVI.
Forced Emancipation concluded.--Emancipation Acts of President Lincoln.--Emancipation with Compensation proposed to Border States.--Reasons urged for it.--Its Unconstitutionality.--Order of General Hunter.--Revoked by President Lincoln.--Reasons.--"The Pressure" on him.--One Cause of our Secession.--The Time to throw off the Mask at Hand.--The Necessity that justified the President and Congress also justified Secession.--Men united in Defense of Liberty called Traitors.--Conference of President Lincoln with Senators and Representatives of Border States.--Remarks of Mr.