Union Pamphlets of the Civil War, 1861–1865: Volume I Union Pamphlets of the Civil War, 1861-1865, Volume I [Reprint 2014 ed.] 9780674288171, 9780674336407

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T H E JOHN HARVARD LIBRARY Bernard Bailyn Editor-in-Chief

UNION PAMPHLETS OF THE CIVIL WAR 1 8 6 1 - 1 8 6 5

Edited by Frank Freidel VOLUME

I

THE JOHN HARVARD LIBRARY

The Belknap Press of Harvard University Press Cambridge, Massachusetts 1967

© Copyright 1967 by the President and Fellows of Harvard College All rights reserved Distributed in Great Britain by Oxford University Press, London Library of Congress Catalog Card Number: 67-17309 Printed in the United States of America

John Harvard Library books are edited at the Charles Warren Center for Studies in American History, Harvard University.

TO S H I R L E Y F.

MORGAN

CONTENTS Introduction by Frank Freidel

ι

A Note on the Texts

25

UNION

PAMPHLETS

OF THE CIVIL

WAR

1861-1865 1

John Lothrop Motley, The Causes of the American War . . . New York, 1861

Civil 29

2

Joel Parker, The Right of Secession . . . Cambridge, 1861

55

3

John Pendleton Kennedy, The Great Drama; An Appeal to Maryland. Baltimore, [1861]

86

Lewis Tappan, The War: Its Cause and Remedy; Immediate Emancipation: The Only Wise and Safe Mode. New York, 1861

102

John Joseph Hughes, Letter of Archbishop Hughes Bishop Lynch, of South Carolina. Baltimore, [1861]

118

4

5 6 7

8

9

Orestes Augustus Brownson, Brownson on the St. Louis, [1861]

to

Rebellion. 128

Matthew Fontaine Maury and John C. Breckinridge, Captain Maury's Letter on American Affairs. Also the Address of Hon. John C. Breckinridge to the People of Kentucky. [Baltimore, 1861?]

166

Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution. Philadelphia, 1862

199

Edward Ingersoll, Personal Liberty and Martial Law: A Review of Some Pamphlets of the Day. Philadelphia, 1862

253

vili

CONTENTS 10

11

Wendell Phillips, The War for the Union; A Lecture. New York, 1862

295

[Mary Abigail Dodge], Tracts for the Times. New York, 1862

321

Courage!

12

John Stuart Mill, The Contest in America. Boston, 1862

326

13

Emma Willard, Via Media: A Peaceful and Permanent Settlement of the Slavery Question. Washington, 1862

345

Anna Ella Carroll, The Relation of the National Government to Revolted Citizens Defined . . . Washington, 1862

357

Charles Janeway Stillé, How a Free People Conduct a Long War: A Chapter from English History. Philadelphia, 1862

381

16

Facts for the People! . . . Indianapolis, 1862

404

17

Benjamin 1862

14

15

18

19

20

21

22

Robbins

Curtis, Executive

Power.

Cambridge, 450

Grosvenor P. Lowrey, The Commander-in-Chief; A Defence upon Legal Grounds of the Proclamation of Emancipation . . . New York, 1863

474

Edward Everett Hale, The Desert and the Promised Land. A Sermon. Boston, 1863

503

Henry Whitney Bellows, Unconditional Loyalty. New York, 1863

512

Samuel Finley Breese Morse et al., The Constitution. Addresses of Prof. Morse, Mr. Geo. Ticknor Curtis, and Mr. S. }. Tilden, at the Organization. New York, 1863

525

[Ezra Mundy Hunt], About the War. Plain Words to Plain People by a Plain Man. Philadelphia, 1863

551

VOLUME II 23

The Great Union Meeting. Held at Indianapolis, February 26th, 1863. Speeches of Andrew Johnson, of Tennessee, Gen. Samuel F. Carey, of Ohio, and Others. Indianapolis, 1863

565

CONTENTS

ix

24

Copperheads under the Heel of an Illinois Farmer. New York, 1863 607

25

Robert Dale Owen, The Future of the North-West: In Connection with the Scheme of Reconstruction without New England . . . New York, 1863

611

26

Edward N. Crosby and S. F. B. Morse, The Letter of a Republican . . . and Prof. Morse's Reply . . . New York, 1863 630

27

[Henry Carey Baird], General Washington and General Jackson on Negro Soldiers. Philadelphia, 1863

650

28

[John H. Hopkins], Bible View of Slavery. New York, 1863

658

29

To Churchmen. New York, 1863

688

30 Clement Laird Vallandigham, The Great Civil War in America. New York, [1863] 697 31

Abraham Lincoln, The Truth from an Honest Man. Philadelphia, 1863

739

32

John V. L. Pruyn, et al., Reply to President Lincoln's Letter . . . New York, 1863

752

33

A Few Words in Behalf of the Loyal Women of the United States . . . New York, 1863 766

34

The Draft, or, Conscription Reviewed by the People. Providence, 1863

787

35

Daniel O'Connell, Daniel O'Connell and the Committee of the Irish Repeal Association of Cincinnati. Cincinnati, 1863

795

36

Rebel Conditions of Peace and the Mechanics of the South. New York, 1863

813

37

Charles Sumner, Our Domestic Relations: or, How to Treat the Rebel States. Boston, 1863

818

38

[Charles Godfrey Leland and Henry P. Leland], Ye Book of Copperheads. Philadelphia, 1863

857

CONTENTS 39 George Franklin Comstock, "Let Us Reason Together." New York, 1864

873

40 Abraham Lincoln. Philadelphia, 1864

903

41

James Russell Lowell, The President's Policy. Philadelphia, 1864 914

42 David Ames Wells, Our Burden and Our Strength . . . New York, 1864 940 43 Timothy Shay Arthur, Growlers Income Tax. New York, 1864 975 44 The Lincoln Catechism . . . New York, 1864

981

45 The Great Surrender to the Rebels in Arms. The Armistice. Washington, 1864 1016 46 A Few Plain Words with the Rank and File of the Union Armies. Washington, 1864 1028 47

[U.S. Bureau of Military Justice], Report of the Judge Advocate General, on the "Order of American Knights," or "Sons of Liberty." . . . Washington, 1864 1039

48 Robert Charles Winthrop, Great Speech . . . At New London, Conn. . . . New York, 1864 1076 49 George Hunt Pendleton, Hear Hon. Geo. H. Pendleton. [New York(?), 1864] 1119 50 Francis Lieber, Lincoln or McClellan. Appeal to the Germans in America. New York, 1864 1128 51

[Charles Astor Bristed], The Cowards' Convention. New York, 1864 1x35

52 Joseph Parrish Thompson, Abraham Lincoln; His Life and Its Lessons. New York, 1865 1149 Index

1181

ORIGINAL TITLE

PAGES

OF S O M E OF T H E P A M P H L E T S IN T H E S E

VOLUMES

REPRINTED

B R O W N 8 (»X Ο Ν

PAMPHLET 6.

1

No.

1.

Papers from the Society for the Diffusion of Political Knowledge,

THE

CONSTITUTION. ADDRESSES OF

Prof. MORSE, Mr. GEO. TIGENOE OUETIS, and Mr. S. J. TILDEN, .Δ.Τ Τ Ξ Έ

ORGANIZATION.

"WHEN A PARTY IN POWER VIOLATES THE CONSTITUTION AND DISREGARDS STATE-RIGHTS, PLAIN MEN READ PAMPHLETS."

EEAD —DISCUSS—DIFFUSE.

PRESIDENT,

OFFICE OF THE SOCIETY,

PEOF. S. P . B . M O R S E , '

SECRETARY, W M .

MCMURRAY,

TREASURER, L O R I N G

ANDREWS,

No. 13 PARK ROW, NEW-YORK C. MASON, COR. SEC'Y., To whom all communications may be addressed.

Resolved, That it be recommended to all citizens in the various cities, counties, and villages of this and other States, who approve of the objects expressed in this Constitution, that they organize auxiliary societies, and open communication with the New-York Society. PAMPHLET

21.

«sí» í-—>*

èXs'e—^Tv,

ABOUT THE WAR.

" So long as yon remain UNITED," said the old man, (pointing the attention of his boys to the bundle of sticke,) "you are a match for all your enemiea; h u t SEPARATE, a n d y o u a r e UNDONE."

PLAIN WORDS TO PLAIN PEOPLE BY A

PLAIN

MAN.

PHILADELPHIA: PRINTED FOR GRATUITOUS DISTRIBUTION. 1863.

PAMPHLET

22.

t e f PRINTED

FOR

QRÂTUITOTTS

PLEASE

DISTRIBUTION. -©J

CIRCULATE.

T

H

E

FÏÏTURB OF TIE WORTH-WEST:

IN CONNECTION WITH

Tbe Scheme of Reconstraction WITHOUT ISTEW ENGLAND. BY

ROBERT

DALE

OWEN.

PHILADELPHIA: OEISSY A MARKLEY, PRINTERS, GOLDSMITHS HALL, LIBRARY STREBT.

1863.

PAMPHLET 2 5 .

t

è I

THE

TRUTH

FROM AN H O N E S T MAN.

I I I THE LETTER OF THE PRESIDENT.

P H I L A D E L P H I A : KING & BAIRD, PRINTERS, No. 607 SANSOM STREET.

1 8 6 3.

PAMPHLET

3l.

3 * w

r

DANIEL O'CONNELL TH*

COMMITTEE

c x 3 s r c i J S T J s r A . x x .

(Prom the Catholic Telegraph of Wednesday August 5th, 1863.)

[STEREOTYPE

6.

EDITION.]

i

CINCINNAR O.

Printed at the Catholic Telegraph Office, Corner of Vine and Longworth Streets,

1863. ' PAMPHLET

' 35.

ΛΛΛΧ Λ v n / e P b ^ i

LOYAL

PUBLICATION 8Ç3

SOCIETY

B R O A D W A Y . ι JVo. 54.

jWett and our ftrcngtli, OR,

A COMPREHENSIVE AND POPULAR EXAMINATION OF THE DEBT AND RESOURCES OF OUR COUNTRY PRESENT AND PROSPECTIVE.

BY DAVID A. WELLS.

" A S ; T H Y D A t S S O S H A L L T H Y S T R E N G T H BE."

PAMPHLET 42.

WHEREIN THE

Eccentricities & Beauties of Despotism ARE FULLY SET FORTH.

A Guide to the Presidential Election of 1864 J. F. F E E K S ,

PUBLISHER

No. 26 ANN STREET, Ν. Y.

PAMPHLET 44.

INTRODUCTION W H E N the ideological struggle between the South and the North disintegrated into a resort to arms, the generation-long war of words continued in intensified, often virulent, fashion. The two sections arrayed against each other not only armies but also polemics. It was essential in such a long and uncertain struggle that soldiers know why they were fighting. Northerners especially went to considerable pains to supply troops with verbal ammunition. Moreover the people of the North among themselves engaged in endless self-examination and sharp internal disputes. In effect they kept asking themselves why they should be fighting. What was the meaning of the war; how should it be conducted; what should its objectives be? What was the essence of the Federal Union they were sacrificing their young men to preserve? Politicians, lawyers, journalists, publicists, and intellectuals all contributed to the great symposium which ranged from crude propaganda to finely wrought treatises on constitutional theory. Much of the discourse found publication in pamphlet form. Pamphleteering had been a vehicle of expression in the English Civil War of the seventeenth century and in the American Revolution of the eighteenth. Despite the availability of inexpensive newspapers and magazines, it continued vital in the American Civil War of the nineteenth century. Indeed, publication societies poured out pamphlets in a volume unprecedented to that time, and the pamphlets may well have found proportionately more readers than those appearing in either earlier or later crises. It was possible for an individual through his own expenditure, or through a modest subscription raised by friends or fellow-thinkers, to put his ideas into print and bring them to the attention of others, using pamphlets as his vehicle. As a means of seeking public support for a point of view they were comparable to the manifestos appearing as advertisements in twentieth-century newspapers. The Civil War pamphlets were of a greater variety than either these modern manifestos or the pamphlets of the Revolution. Appearing in the first great war

2

INTRODUCTION

when there was general literacy in the United States, some appealed simplistically to the masses, while others, in the complexity and sophistication of argument, were aimed at as well educated an élite as had been the Revolutionary tracts and the Federalist. Within the Civil War pamphlets, in their considerable sweep, are to be found many of the ideas that molded men's minds and in time their actions during the vicissitudes of the i86o's. As had been true for centuries, pamphlets tended to proliferate pamphlets. The appearance of an authoritative, powerfully reasoned treatise like Horace Binney's in defense of President Lincoln's suspension of the writ of habeas corpus led to immediate vigorous responses, and these in turn prompted the retorts of Binney and his supporters. In this fashion, the more complex, perplexing issues received full and salutary airing. At other times, the pamphleteers emphasized emotional rather than intellectual factors, and fell back upon endless, repetitious exchange of polemic.1 The major themes changed as the course of the war took one and another turn. Consequently, the pamphlets must be approached in the light of military, economic, and political events. In return they record something of the response to the shock of the war. The advent of publication societies in 1863 gave organization and direction to the pamphleteering. These organizations reissued some tracts published elsewhere that most effectively presented certain viewpoints, originated scores of others, and developed themes to meet the exigencies of the war. They enormously increased the output of pamphlets, and directed the flow toward groups and areas they most wanted to influence. Supporters of the Lincoln administration founded pamphleteering societies, as a few months earlier they had established the Union Leagues and Loyal Leagues as a means of countering the discouragement of both civilians and soldiers. President Lincoln had replaced General George B. McClellan, the ineffective commander of the forces in the East, after the frightful and uncertain victory at Antietam, with General Ambrose E. Burnside, who in turn led his 1 During the Revolutionary crisis, many pamphlets had resulted "from what might be called chain-reacting personal polemics: strings of individual exchanges — arguments, replies, rebuttals, and counter-rebuttals — in which may be found heated personifications of the larger conflict." Bernard Bailyn, ed., Pamphlets of the American Revolution, 1750-1776 (Cambridge, 1 9 6 5 ), I, 5.

INTRODUCTION

3

army into a bloody disaster at Fredericksburg in December, 1862. Twice that winter J. Ε. B. Stuart's Confederate cavalry rode around the Army of the Potomac. A committee of Republican Senators visited President Lincoln to try to force reorganization of the cabinet, and perhaps wrest policy-making from him. It required all Lincoln's political skill to parry them. The Republican gentlemen founding the first of the Union Leagues in Philadelphia were so cautious in that overwhelmingly Democratic city that their invitations to the meeting to establish the League declared merely that there would be an assemblage of loyal men for a patriotic purpose. What that purpose might be was left to conjecture, and there was no signature on the notes.2 The Republican publication societies tried to bolster morale, or in the case of the Democratic one, to capitalize upon the depressed state of opinion, by utilizing techniques long since developed by political campaign organizations, anti-slavery societies, and religious groups. All of these had long engaged in organized production of pamphlets. The American Tract Society, a religious organization, provided the most clear-cut precedent. Established a generation earlier, it continued active during the Civil War, focussing its output upon the Union armies. These tracts, although aimed primarily at winning soldiers' souls, might well as a side-effect influence their votes. Abolitionists denounced as semi-treasonable the political content of an address, "Tracts for Soldiers," that a conservative Bostonian, a former Whig Speaker of the House of Representatives, Robert C. Winthrop delivered in May, 1862, before an anniversary meeting of the American Tract Society. Winthrop's remarks illustrate the intimate and almost inevitable intermingling of theology and ideology in wartime: If there be " a devil in secession," as a fearless Tennessee patriot has recently told us, w e all know what is the only power which has ever succeeded in casting out devils. It was not the power of Beelzebub; nor was it the power of man. N o military stratagems, no civil statesmanship, no policy of man's device, no wholesale confiscations or emancipations, can reach it. It came of old, and it must come again, from higher than human sources or influences. W e must look, in God's good time, for a spirit of reconciliation, breathed forth from the very throne of the Most High, to turn back our hearts to each other 'Chronicle 40.

of the Union League of Philadelphia, 1862-1902

(Philadelphia, 1902),

4

INTRODUCTION

and to Himself; and w e must invite it, and invoke it, and prepare the w a y for it, b y all the instrumentalities in our p o w e r . 3

It was precisely to combat such views as these, especially among susceptible army men, that strong supporters of the Union cause created machinery modelled upon that of the American Tract Society. While the Union armies, humiliated by frequent defeat, were suffering through the discomforts of winter bivouac, the Democrats fed their dissatisfaction with newspapers and pamphlets criticizing the mismanagement from Washington, attacking emancipation, and playing upon the irritation and grievances Middle Westerners had long felt toward New England. Apparently the soldiers responded to the arguments. Professor Francis Lieber of Columbia College in New York City, a political scientist and publicist, complained early in February, 1863, "The cars, on my return from Washington were full of discharged soldiers and such loud, nasty, infernal treason I have never believed my ears should be destined to hear. I changed cars, but it was everywhere the *> A

same. 1 Numbers of well-to-do Republicans, like Lieber, blamed the disaffection of the troops less upon the discouraging conditions they faced than upon Democratic propaganda. Early in the winter, the Union League movement, beginning in Philadelphia, spread throughout the North. In city after city the Republican leaders banded themselves into Union Leagues, Loyal Leagues, and the like, and began holding great mass meetings to try to counter the Democratic sentiment dominating the cities. In the same fashion they organized pamphleteering, primarily to indoctrinate the troops. The New Yorkers met on February 14, 1863, to establish "a Publication Association chiefly for the army to counteract the base camarilla of [New York] 'World' renown," which was distributing "disloyal" newspapers and pamphlets among the soldiers. They called their organization the Loyal Publication Society. The night previously New York Democratic leaders had met to establish the Society for the Diffusion of Political Knowledge. On February 17, 3 Robert C. Winthrop, Jr., A Memoir of Robert G. Winthrop (Boston, 1897), 224. * Frank Freidel, Francis Lieber, Nineteenth Century Liberal ( Baton Rouge, Louisiana, 1947), 345; James G. Randall and David Donald, The Civil War and Reconstruction, and ed. (Boston, 1961), 490-491.

INTRODUCTION

5

the Union League of Philadelphia established a Board of Publications. Thus the three major pamphleteering organizations of the war came into existence within five days of each other. In Boston, the New England Loyal Publication Society, which directed itself to a somewhat different activity, the sending of broadsides or clipsheets to newspaper editors, began operations in January and was formally organized in March.5 The largest, richest, and most active of these organizations was the Board of Publications of the Philadelphia Union League. Before the end of March, 1863, one of its members, John W. Forney, was boasting in his Philadelphia Press that not only had the Union League forty thousand dollars in its treasury, but that its Board of Publications had raised twenty-two thousand more, "for the purpose of circulating loyal weekly newspapers, short printed arguments, pamphlets, etc." At first a committee of three supervised the work; it was soon enlarged to a board of twenty-seven members. Benjamin Gerhard was chairman, James L. Claghorn, treasurer, and M. H. Messchert, secretary. The Board carried on its work through three committees: finance, headed by Lindley Smyth; publication, Stephen Colwell; and distribution, W. H. Ashurst. Among the outstanding members was Colwell, an iron manufacturer and political economist, notable for his writings on behalf of tariff protection. He had presided over the first formal meeting leading to the establishment of the Union League, and was also active in the Sanitary Commission and the Christian Commission. Another member was Henry Charles Lea, later to become famous as an historian of the Inquisition of the Middle Ages. Lea, a publisher, belonged to several Union League committees and devoted considerable time to its work. William Henry Rawle, a distinguished lawyer and legal writer, for a time was on the Board. Subsequently the powerful Philadelphia Biddle family was represented by Cadwalader Biddle. The affluence of the members of the Board is shown by the fact that in addition to their substantial contributions to the parent organization, each of the twenty-seven contributed two-hundred5

Freidel, Lieber, 345; Freidel, "The Loyal Publication Society . . . ," Mississippi Valley Historical Review, 26 (December, 1939), 359-376. On the views of the New York World, see Mary Cortona Phelan, Mantón Marble of the New York World (Washington, 1957).

6

INTRODUCTION

and-fifty dollars to head the subscription list. Soon the Board of Publications had thirty-five thousand dollars in its treasury.6 During the war years, a force of twelve employees working from one of the League's rooms sent out a flow of printed materials. George H. Boker, the playwright and poet, who was secretary of the Union League, declared in his first annual report, "There is scarcely a post-town, from Maine to California, that has not received a package of our publications."7 The first serious political fight in which the League Board of Publications engaged was the Pennsylvania gubernatorial campaign of 1863. Governor Andrew G. Curtin, the Republican candidate for re-election, was himself a member of the Union League. He opposed Justice George Washington Woodward of the Pennsylvania Supreme Court, who had won the Democratic nomination because of the popularity of his decisions against the Conscription Act and the legal tender system. At the beginning of the campaign, the State Central Committee of the Republican Party asked the League for its publications. The Board of Publications turned over to the party its entire remaining stock, wrote and printed new pamphlets, several devoted particularly to Judge Woodward, and saturated the state with them. Claghorn, treasurer of the Union League, in his private capacity raised one-hundred-and-fifty thousand dollars for the Republican campaign fund. This was in excess of the amount needed, so a considerable balance was handed over to the Board of Publication to finance its pamphlets.8 The editors developed skillful techniques for repudiating Judge Woodward. Using his speeches and statements as the basis of attack, they declared that the Democratic candidate wished "the line of separation to run north of Pennsylvania." To alienate those opposed to slavery, they set forth excerpts from his speeches in such a way as to make it appear that he favored all the "monstrous injustices" of the slave system. Following short quotations from Woodward, they printed lurid passages from the recently published Journal of ' [George H. Boker], First Annual Report of the Board of Directors of the Union League of Philadelphia . . . (Philadelphia, 1863), 6; Chronicle of the Union League, 105; Officers and Members of the Union League of Philadelphia ( Philadelphia, 1866 ), 5; John Wien Forney in the Philadelphia Press, March 28, 1863, cited in Stanton Ling Davis, Pennsylvania Politics, 1860-1863 (Cleveland, 1935), 301. 7 Boker, First Annual Report, 7; Chronicle of the Union League, 107, 1 5 4 - 1 5 5 . 'William B. Hesseltine, Lincoln and the War Governors (New York, 1948), 328; Boker, First Annual Report, 7; Chronicle of the Union League, 79-80.

INTRODUCTION

7

a Residence on a Georgian Plantation by Fanny Kemble. To stir the resentment of foreigners, they published in both English and German quotations from Woodward's earlier nativist statements. They reminded readers that in i860 Woodward had favored allowing the South to secede peacefully — not adding, of course, that at that time Horace Greeley and others held similar views. In 1863, they asserted with dubious accuracy, Woodward still wished to compromise with the South. Forney in response to Democratic complaints asserted that the Union League propaganda "enlightens the mind and instills mutual sentiments of respect and affection."9 The election was very close, but Governor Curtin squeezed through by a margin of fifteen thousand votes. William B. Hesseltine has ascribed the victory to Lincoln's generous furloughs to soldiers and government workers, sent home to vote, but the Union League took full credit for itself. Five years later when the Board of Publications was dissolved, the League resolved:10 That no department of the work of the League has been of more real service to the country, or reflected more true and lasting honor upon the League itself, than its department of publication, at that most critical period in our country's history, the autumn of 1 8 6 3 , when Governor Curtin was a candidate for reelection. H e declared openly that he owed his success to the Union League of Philadelphia, which, as he playfully said, "had plastered the State with its handbills."

In 1864, the Union League Board of Publications concentrated upon the campaign for the re-election of President Lincoln. It wrote the local Republican committee chairmen of every school district in Pennsylvania to ascertain the names of doubtful voters within each district. Upon these waverers the League concentrated "a stream of ideas in print." Postmasters, school teachers, and other ' The Union League published the following pamphlets during the campaign, all appearing in Philadelphia in 1863: Opinions of a Man Who Wishes to be Governor of Pennsylvania (Union League No. 4 3 ) ; Address and Resolutions of the Union League of Philadelphia (Union League No. 4 5 ) ; Address of the Union State Central Committee of Pennsylvania. September, 1863 ( Union League No. 46 ) ; G. W. Woodward, Woodward on Foreigners ( Union League Nos. 47 and 52 ) ; Woodward and J. H. Hopkins, The Views of Judge Woodward and Bishop Hopkins on Negro Slavery at the South, Illustrated from the Journal of a Residence on a Georgian Plantation . . . (Union League No. 48); Woodward, Woodward in i860 and 1863 (Union League No. 5 1 ) ; Woodward, Judge Woodward on the War (Union League Broadside, No. 1 3 ) . On Forney, see Hesseltine, Lincoln, 334. 10 Hesseltine, Lincoln, 3 3 4 - 3 3 6 ; George Parsons Lathrop, History of the Union League, From Its Origin and Foundation to The Year 1882 (Philadelphia, 1884), 69.

8

INTRODUCTION

community figures were enlisted as distributing agents for the Board. It hoped not only thus to broadcast the pamphlets but also to incite the agents to increased zeal for the Union cause. 11 During Reconstruction the Union League was active in the state election of 1866, then dormant until 1868 when it made a massive effort to win the presidency for General U. S. Grant. After the Republican victory, the Board of Publication dissolved itself. Altogether in six years it had issued about four-and-a-half million copies of one-hundred-and-forty-five pamphlets and forty-four broadsides. In 1863 and again in 1864, it distributed over a million pamphlets, but in 1865 put out less than sixty thousand. It published one-hundred-and-four pamphlets and thirty-seven broadsides between 1863 and 1865; only four of the pamphlets appeared in 1865. Almost all of the Union League publications from beginning to end either bore no identifying symbol, or merely the notation, "Printed for Gratuitous Distribution," accompanied at times by a small emblem of Columbia, spear and shield in hand.12 Although the output and budget of the Loyal Publication Society were far less than that of its Philadelphia neighbor, it was one of the most influential of the pamphleteering organizations. Numbering among its members notable New Yorkers, during the three-year period of its existence it raised nearly thirty thousand dollars, which it expended on the publication of ninety pamphlets, printing and distributing approximately nine hundred thousand copies.13 At their organizational meeting in February, 1863, the founders of the Loyal Publication Society resolved that its objective should be, and would be confined to, "the distribution of journals and documents of unquestionable and unconditional loyalty" throughout the United States. Especially they wished to send these materials to the soldiers in the field, to offset as far as practicable "the efforts now being made by the enemies of the Government and the advocates of a disgraceful P E A C E . " Charles King, the elderly President of Columbia College, was elected president, and John Austin Stevens, Jr., a banker active in Republican politics, was made permanent secretary. Similarly to the Union League Board, the Loyal Publica11 Lathrop, History of the Union League, 68. "Boker, Sixth Annual Report . . . (Philadelphia, 1868), 12; Chronicle of the Union League, 106, 154-160. M Freidel, "Loyal Publication Society . . ."; Edith E. Ware, "Committees of Public Information, 1863-1866," Historical Outlook, 10 (February, 1 9 1 9 ) , 65-67.

INTRODUCTION

g

tion Society operated through three committees. The finance committee raised funds, the publication committee edited manuscripts for publication and selected newspapers and pamphlets to be circulated, and the executive committee handled printing and distribution. The members were a mixture of the intelligentsia and the financial and merchant classes of New York. The president was a merchant who had become a college president, and its secretary was a banker who later wrote the life of Albert Gallatin in the American Statesmen series. Upon the committees were such men as Christian E. Detmold, engineer and manufacturer, who in 1833 had superintended the laying of the foundations of Fort Sumter; Charles Astor Bristed, an essayist who was the great-grandson of John Jacob Astor; and William C. Church, newspaperman and colonel in the army, whose Army and Navy Journal received aid from both the New York organization and the New England Loyal Publication Society. Francis Lieber at first served as chairman of the publications committee; George Palmer Putnam, the publisher, who was the local collector of internal revenue, was an active member; Oliver Wolcott Gibbs, a chemist, resigned when he left New York to assume the Rumford professorship at Harvard. Included on the executive committee was Sinclair Tousey, President of the American News Company. One of the finance committee members was Levi P. Morton, later Vice-President of the United States, who was amassing a considerable fortune out of the war.14 At the end of the first year, King, who meanwhile had resigned from the presidency of Columbia, also resigned as head of the Loyal Publication Society. His place was filled by Lieber, who thereafter was in considerable measure responsible for the policies of the organization. Lieber, who had always been a prolific pamphleteer, found in the Society an outlet for his pen. He wrote ten of its ninety pamphlets. The Loyal Publication Society began operations at once, sending newspapers and pamphlets to the Union forces even before it could produce its own materials. Between February 23 and April 4, 1863, it sent thirty-six thousand copies of journals to Washington for distribution to the Army of the Rappahannock. Lieber informed President Lincoln in June, "We have distributed over the United States 14 [John Austin Stevens, Jr.], Proceedings at the First Anniversary Meeting of the Loyal Publication Society (Loyal Publication Society No. 44, New York, 1864).

10

INTRODUCTION

not far from 150,000 copies of pamphlets, broadsides [and newspapers], and wish to do a great deal more." 15 The New Yorkers established cooperative relationships with the New England Loyal Publication Society and the Union League Board of Publication. They exchanged suggestions, in some cases loaned each other stereotype plates, assisted each other in the distribution of pamphlets, and avoided competition or duplication of efforts. In some cases all three organizations printed the same or very similar pamphlet material. The Loyal Publication Society looked especially to the Union League. When in November, 1863, the work of the New York organization threatened to cease due to lack of funds, since the New York gentlemen did not dig as deeply into their purses, the Philadelphians contributed $2,842.75 to make possible a renewal of activities.16 During 1863, the Loyal Publication Society issued a total of four hundred thousand copies of forty-two pamphlets; in 1864 it maintained about the same level of activity. These leaflets ranged in size from four to forty-two pages. At first they were issued without covers; later they appeared in straw-colored paper jackets bearing the Society's seal, an American eagle within a ring of stars. Over the eagle was printed the motto, "Our Country." Although the pamphlets were printed on many local presses, the greatest number bore the imprint of the William Cullen Bryant Co., publishers of the New York Post. In addition to distributing these pamphlets, the Society sent out a large number of exchange publications and nearly a hundred thousand newspapers and broadsides. It sent materials into ten states, including fifteen thousand pamphlets for forces occupying Louisiana, but concentrated upon New York and avoided Pennsylvania and Massachusetts where the sister organizations were at work. The recipients of publications in 1863 included "649 Union Leagues and associations; 474 Ladies' Associations; 21,160 Private individuals; 744 Editors; and the Soldiers in the army." Strangely enough the editors were considered the least important of those on the mailing list, and when the Society ran short of funds because of the increased postage rate, it was they who sometimes failed to " [John Austin Stevens, Jr.], Proceedings at the Second Anniversary Meeting . . . (Loyal Publication Society No. 78, New York, 1865); Freidel, Lieber, 346. 18 [Stevens], Proceedings at the First Anniversary Meeting, 1 1 - 1 4 .

INTRODUCTION

11

receive the pamphlets. In 1864, Adams Express Company helped the Society circumvent the high postage rates by joining in the distribution of the pamphlets, but the political emergency created by the presidential campaign that year led to a concentration upon N e w York City, where one-hundred-and-twenty thousand pamphlets were circulated. 17 Since Francis Lieber, the President of the Loyal Publication Society, had himself emigrated from Germany some thirty-five years earlier and was in correspondence with European intellectual leaders, it is not surprising that he directed some of the Society's effort toward obtaining support from abroad. Through the sister organization of almost identical membership, the Loyal National League, a letter of appreciation went to leading French liberals favoring the Union cause. Among them were Senator Edouard Laboulaye, an authority on international law; Comte Agénor de Gasparin, publicist; Augustin Cochin, journalist and deputy; and Henri Martin, historian. The Loyal Publication Society widely circulated their enthusiastic reply in French, German, and English. 18 The Loyal Publication Society continued operations after the spring of 1865, but these were negligible. Its leaders, considering that its duties had ended with the successful completion of the war, dissolved the organization at the third annual meeting, February 27, 1866. A committee of six wound up its business, transferring all assets to the Union League. In his final presidential address, Lieber declared: "When our last volume shall be published, it will be found that . . . these volumes now form a depository both instructive and interesting, and that its contents, when scattered by the hundred thousand, did good service in times of anxiety and "Ibid., 2 0 - 2 1 ; [Stevens], Proceedings at the Second Anniversary Meeting, 1, 1 8 - 1 9 , 2 3 - 2 7 ; [George Palmer Putnam], Loyal Publication Society; Final Report and Address of the President . . . ( N e w York, 1 8 6 6 ) , 7. " A g é n o r de Gasparin, et al., Résponse de Mm. de Gasparin, Laboulaye, Martin et Cochin, à La Ligue Loyale et Nationale de New York ( Loyal Publication Society No. 4 1 , N e w York, 1 8 6 4 ) ; see also Nos. 4 2 and 4 3 ; Donaldson Jordan and Edwin J. Pratt, Europe and the American Civil War (Boston, 1 9 3 1 ) , 229, 2 3 3 , 279. The Loyal Publication Society obtained funds from the Union League of N e w York to send sets of Frank Moore's Rebellion Record and bound volumes of the first forty-four pamphlets of the Loyal Publication Society to fifty European monarchs, important libraries, organizations, editors, and pro-Northern leaders. It duly published the letters of thanks and commendation from numerous notables. [G. P. Putnam, ed.], Letters from Europe Touching the American Contest . . . ( L o y a l Publication Society No. 70, N e w York, 1864).

12

INTRODUCTION

glory, and they contributed no inconsiderable share in bringing about one of the greatest national acts in all history — the reelection of Abraham Lincoln." 19 The New England Loyal Publication Society, although it did not pamphleteer, interacted with the Philadelphia and New York organizations, and is worthy of comparison. It operated on a fraction of the budget of the other two, spending less than four thousand dollars in 1863 and four-thousand-five-hundred in 1864, yet was probably more effective in its results. It gathered from newspapers and other sources articles helpful to the Union cause, printed these in newssheet-size broadsides, and sent them as often as twice weekly to a selected group of smaller newspapers. Usually each broadside carried two or more articles. In form the broadsides resembled the clipsheets which publicity-seeking organizations send to newspapers. Charles Eliot Norton, who had been the editor, explained years later that the object was to supply "local newspapers with better material than they were likely to have at hand, and with the design of directing and concentrating public opinion on the matters of most importance at any specific moment." 20 John Murray Forbes, a Boston merchant and railroad magnate of pronounced Radical Republican views, established the Society as a means of influencing public opinion through the press. He sought as backers in January, 1863, fifty vigorous Republicans with brains as well as money who would "not bore us too much." He obtained as subscribers not only businessmen but also such intellectuals as James Russell Lowell and Henry Wadsworth Longfellow. By the end of its first year of operation, the Society was supplying broadsides to 867 newspapers in every Northern state, and in Great Britain. Replies to a questionnaire indicated that numerous editors were printing the articles outright, or making them the basis of editorials. The editor of the Indianapolis Journal observed, "I think your slips will be extensively used by country papers. The editors are usually printers, have little time and not much inclination to " [Putnam], Final Report . . . , 12. "George Winston Smith, "Broadsides for Freedom: Civil War Propaganda in New England," New England Quarterly, 2 1 (September, 1948), pp. 2 9 1 - 3 1 2 ; Charles Eliot Norton to Lindsay Swift, January 8, 1903, copy in New England Loyal Publication Society collection, Boston Public Library. Three volumes of broadsides and an index are in this collection.

INTRODUCTION

13

write, and would gladly seize a good article as a substitute for their own editorial." There were less flattering reactions also, and the executive committee possessed sufficient candor, or sense of humor, to report one of these from the Richmond, Indiana Palladium: "We looked upon the Society's efforts in our behalf, as a species of contemptible officiousness . . . We found, however, considerable use for the 'broadsides.' — they were printed on excellent paper, and, occupying only one side of the sheet, the blank side served an excellent purpose because of the high price of paper, on which to write editorials, notices, &c. Further, they made excellent wrapping paper, and we used divers of them for mailing the Palladium." 21 The New England Loyal Publication Society sent the editors much the same sort of provender that its sister organizations were distributing in pamphlet form. Forbes was particularly interested in raising Negro regiments; consequently many of the earlier broadsides advocated arming Negroes, and extolled their bravery in combat. The output of broadsides continued until November, 1866; a few numbers of a new series were issued between January and May, 1868. Altogether 325 broadsides were published.22 Numerous other organizations printed and distributed pro-Union or Republican broadsides and pamphlets. The Republican Congressional Committee which issued campaign pamphlets from 1856 into the 1880's functioned in 1864 as the Union Congressional Committee (or Union Executive Congressional Committee). It issued quantities of pamphlets similar to those of the Union League and the Loyal Publication Society. Thurlow Weed, a conservative Republican politician and journalist, in Albany, New York, published for sale to Union organizations and sympathizers a similar set of 21

Edith E. Ware, Political Opinion in Massachusetts During Civil War and Reconstruction (New York, 1 9 1 6 ) , 122; [John Murray Forbes], Plan for Securing the Republication and Circulation of Timely and Valuable Articles Upon Important Public Questions. Printed copy with signatures of subscribers; Forbes to Samuel G. Ward, January 22, 1863; Printed report from J. B. Thayer, Secretary, to William Endicott, Jr., Treasurer, New England Loyal Publication Society, February 1, 1864, all in New England Loyal Publication Society collection. James B. Thayer et al., Report of the Executive Committee of the New England Loyal Publication Society (Boston, 1 8 6 5 ) , 13-

22 The first broadside was The Policy of a Negro Army for the North (Boston, 1863), published on January 28. It was copied from the London Spectator, December 13, 1862. See index of broadsides, Boston Public Library.

14

INTRODUCTION

ten pamphlets, entitled Union Campaign Documents. A series appeared in Cincinnati entitled Loyal Publications of the National Union Association of Ohio. The Republican State Central Committee of Detroit printed broadsides and pamphlets, circulating from fifty to one hundred-and-twenty-five-thousand of each of them. W. S. Wood, the secretary, wrote to the New England Loyal Publication Society asking to be put on its mailing list so that the Michigan committee could reprint suitable material. The committee sold its pamphlets to local groups throughout Michigan for less than half the cost of the printing. There must have been numerous other organizations and printing establishments pouring out pro-Union pamphlets, especially during the campaign of 1864. 23 The Democrats were less active. The most conspicuous Democratic organization was the Society for the Diffusion of Political Knowledge established under the aegis of the wealthy and versatile developer of the telegraph, Samuel F. B. Morse. Under his leadership a group of well-to-do New York Democrats met at Delmonico's on February 13, 1863. This was the organization so feared and vituperated by the "loyal gentlemen" of the Loyal Publication Society, who formed their counter-organization the following evening. Their purpose, which the Loyal Publication Society and the New York Post claimed was to disseminate disloyal printed matter, to them rather was "to promote a sound political education of the public mind; to the end that usurpations may be prevented, that arbitrary and unconstitutional measures may be checked, that the Constitution may be restored, and that the blessings of free institutions and public order may be kept by ourselves and be transmitted to our posterity." In private, Morse reiterated these noble objectives; he was ready to give his energy and influence to bring about "Peace with Honor" and the abandonment of abolition in order to save the country. He hoped that the Society would be the vehicle to this end, and proceeded with confidence since its backers were millionaires who assured him that funds would not be lacking. The Society for the Diffusion of Political Knowledge published and distributed more than one hundred pamphlets. The contents 23 On the Republican State Central Committee of Michigan, see W. S. Wood to the New England Loyal Publication Society, September 5, 1863, Boston Public Library; W. S. Wood, "We congratulate the ever true Republicans . . ." [broadside] (Detroit, 1863).

INTRODUCTION

15

were diametrically opposed to those of the pro-Union societies, but the techniques and types of material were quite parallel. If widely distributed, they must have served as an effective foil to some of the publications of the pro-Union organizations. Robert C. Winthrop's eloquent defense of General McClellan in the campaign of 1864 reportedly appeared in an edition of two hundred thousand copies. In the party battles of the Civil War theirs in the end was the losing side, and perhaps it is for this reason that their pamphlets are less often encountered in libraries. Morse's pamphlets ran the gamut of the Democratic attack upon the Lincoln administration from the dignified, conservative views of Winthrop and Samuel J. Tilden to the shrill and ridiculous vulgarity of a pamphlet charging the Republicans with advocating miscegenation. The earlier pamphlets were emblazoned with the name of the Society for the Diffusion of Political Knowledge, and bore the motto, "When a Party in power violates the Constitution and disregards state-rights, plain men read pamphlets." Those issued during the campaign of 1864 bore the same address, but only the identification: "Campaign Document" "Sold . . . at all Democratic Newspaper Offices." 24 Another series competing with those of the pro-Union societies were the Anti-Abolition Tracts published by Van Evrie, Horton and Company, printers of rumored Southern sympathies. Intended to counteract the "false and pernicious doctrines" of the abolitionists, these pamphlets embraced "a concise discussion of current political issues, in such a cheap and popular form, and at such a merely nominal price for large quantities, as ought to secure for them a very extensive circulation." 25 All these pamphlets reiterated the determination of their Democratic writers to preserve the Union; none pleaded for Southern independence. Some pamphlets published in Baltimore early in the war were frankly and avowedly pro-Confederate, the output of a publisher rather than an organization. Late in the war, the "Order 24 S. F. B. Morse et al., The Constitution. Addresses of Prof. Morse, Mr. Geo. Ticknor Curtis, and Mr. S. J. Tilden, at the Organization ( Society for the Diffusion of Political Knowledge No. 1, New York, 1863); Edward Lind Morse, Samuel F. B. Morse His Letters and Journals (Boston, 1914), 423-424; Robert Charles Winthrop, Great Speech . . . at New London, Conn. . . . (Campaign Document No. 23, New York, 1864); Miscegenation Indorsed by the Republican Party (Campaign Document No. 11, New York, 1864). 25 The Abolition Conspiracy to Destroy the Union; or, a Ten Years' Record of the "Republican" Party ( Anti-Abolition Tracts No. 3, New York, 1863).

16

INTRODUCTION

of American Knights" or "Sons of Liberty" were charged, not with publishing, but with circulating throughout the country a number of treasonable publications, some of them books of Confederate origin, and pamphlets including The Lincoln Catechism . . . A Guide to the Presidential Election of 1864. It is interesting to see, since the Judge Advocate General of the United States Army, Joseph Holt, labelled this pamphlet treasonable, that it was issued by a New York publisher, who printed his name and address upon it and took out a copyright. Nevertheless, the pamphlets of this publisher, J. F. Feeks, of 26 Ann Street, New York City, did represent an extremist position, not countenanced by the Democratic party leaders.26 Both the Democratic Society for the Diffusion of Political Knowledge and the Republican pamphleteering organizations, by the wide range of their pamphlets seemed to represent the consensus of their two parties. Little of the sharp struggle between the War and Peace Democrats, or the Moderate and Radical Republicans, crept in. Perhaps each had to depend upon financial backers of too broad a range of views to become the vehicle for the ideology of one faction. It is possible that the Loyal Publication Society was more Radical Republican in leadership than the Union League Board of Publication. While the Union League published two pamphlets in praise of Lincoln in the early months of 1864, the Loyal Publication Society held back until after his renomination at the Union Party ( Republican ) convention. The difference is trifling. The President of the Loyal Publication Society, Lieber, was clearly enough a Radical Republican to be invited to the remarkable meeting at David Dudley Field's on August 31, 1864, which agreed Lincoln could not be re-elected and that a committee should call upon him to withdraw. But Lieber declined to sign their manifesto. In Boston, the editor of the New England Loyal Publication Society, Charles Eliot Norton, had favored renomination of Lincoln before the convention; the President of the Society, John Murray Forbes, had opposed it.27 Forbes rather clearly expressed the attitude of those 26 [U.S. Bureau of Military Justice], Report of the Judge Advocate General, on the "Order of American Knights," or "Sons of Liberty." A Western Conspiracy in aid of the Southern Rebellion (Washington, 1864), 1 1 ; The Lincoln Catechism . . . A Guide to the Presidential Election of 1864 (New York, 1864). 27 Freidel, Lieber, 3 5 1 Smith, "Broadsides for Freedom," 305-307.

INTRODUCTION

17

of Radical views toward the more conservative backers of the Union cause, when he wrote his friend Edward Atkinson in August, 1864, on the desirability of circulating a pamphlet emphasizing the financial strength of the United States government: I suggest a separate subscription for this — a great many people will pay for a thing like this which they approve, who will not for our miscellaneous publications. I therefore suggest sending copies to Mr. Lee who is great on republication of Pamphlets — to D. Sears, Oakes Ames, Sml Hooper, Alley Rice — & then get the Bank & Insurance Presidents . . . & other semi-patriotics who want our credit kept up to par. I will cheerfully pay if necessary to make it go, but I think the Hunkers & material interest men had better take this up & do it up brown rather than we radicals! It must be done one way or t'other.28

All the Union publication agencies issued pamphlets acceptable to the moderates, as was the one Forbes was discussing, David A. Wells's Our Burden and Our Strength, which the New York Loyal Publication Society issued. All disseminated the most advanced Radical propaganda, Judge Advocate General Joseph Holt's exposé of the alleged Copperhead conspiracy in the Middle West. It appeared even in the pamphlet series of the conservative Thurlow Weed. 29 Because these publication societies had to operate within a Republican consensus, and since their editors were well-educated gentlemen of literary standing, they printed relatively little blatant, noisome propaganda. The use of atrocity stories was effective in arousing passions in the North, but to the credit of the societies they printed only a modicum of those bloody inventions being proclaimed by Union orators, even from the floor of the House of Representatives. Thus Representative A. A. Sargent of California delivered a speech in the House on May 23, 1862, in favor of the confiscation of Confederate property, which was little more than a compilation of dozens of such stories. He cited "Parson" W. G. Brownlow of East Tennessee, the most prolific spreader of these tales: "Why, gentlemen, after the battle of Manassas they passed 28 J. M. Forbes to Edward Atkinson, August 26, 1864, cited in Herbert R. Ferleger, David A. Wells and the American Revenue System, 1865-1870 (New York, 1942), 14. 2 "U.S. Bureau of Military Justice, Report . . . on the "Order of American Knights . . ." This report, in one form or another, was issued by the Loyal Publication Society, the Union League (No. 95), the Union Congressional Committee, and as No. 10 of Weed's Union Campaign Documents.

18

INTRODUCTION

through our town on furlough, officers and privates, going down into Dixie, exulting and brought with them divers what they called Yankee heads — the entire heads of Union troops — some of them with long beards; and they would take them by the hair and shake them out of the window, and say: Ά damned Yankee's Head! ' " 3 0 So widespread were these tales, and so generally believed, that the effects of them did spill over into some of the pamphlets, as for example, A Few Words in Behalf of the Loyal Women, in which the credulous author compared the women of the South with the Parisian fishwives knitting at the foot of the guillotine. Again, it was a naïve Northerner rather than a skilled propagandist who, after visiting released slaves in Louisiana, wrote an official report to Secretary of War Edwin M. Stanton retailing atrocity accounts they apparently had related to him. It was not until late in 1864 that pamphlets dealing with prison atrocities became common. Speeches by returned prisoners telling, for example, of the Confederate plan to blow up Libby Prison upon the approach of Union forces, were published. The most widely circulated pamphlet on the subject was a report by a board of inquiry of the United States Sanitary Commission, which contained woodcuts from photographs of emaciated prisoners. As the prison stories grew, hatred against the South spread. Radical Republicans urged retaliatory measures against Confederate prisoners in Union Camps, and helped prepare the minds of Northerners for stern Reconstruction policies in the South.81 The Republican organizations did engage in numerous age-old propaganda techniques. They published and republished a fraudulent speech Alexander H. Stephens, the Vice-President of the Confederacy, purportedly had delivered at the Georgia secession convention, though they may not have known it was fraudulent. They printed in juxtaposition excerpts from Confederate statements and from speeches of Democratic leaders they wished to repudiate. The 8 0 A.

A. Sargent, Confiscation of Rebel Property . . . (Washington, 1862), 4. Few Words in Behalf of the Loyal Women of the United States by One of Themselves (Loyal Publication Society No. 10, New York, 1863); James McKaye, The Mastership and its Fruits: The Emancipated Slave Face to Face with His Old Master. A Supplemental Report to Hon. Edwin M. Stanton, Secretary of War (Loyal Publication Society No. 58, New York, 1864); Narrative of Privations and Sufferings of United States Officers and Soldiers While Prisoners of War in the Hands of the Rebel Authorities. Being the Report of a Commission of Inquiry, Appointed by the United States Sanitary Commission. With an Appendix Containing Testimony (Loyal Publication Society No. 76, New York, 1864 ) ; William B. Hesseltine, Civil War Prisons. A Study in War Psychology ( Columbus, Ohio, 1930 ). 81A

INTRODUCTION

19

Union League particularly utilized this device against Judge Woodward in 1863. Nor were they overcareful in excerpting. One of the quotations used as a heading for the New England Loyal Publication Society broadsides in 1864 was " 'Let us seek at once to eradicate every vestige of radical Democracy, every feature tending to make ours a popular government.' — Southern Literary Messenger, Richmond, January 1862."32 Thus quoted no reader would suspect the context, a plea for a republic governed by the most intelligent men, modelled along the lines of Plato's ideal: "First of all, we should ever keep before us, as the essential features in the image of perfect government, the States-Right theory — that, rigidly adhered to, will avert the danger of centralization of power. Secondly, let us seek at once to eradicate every vestige of radical democracy, every feature tending to make ours a popular government, making it subject only to the intelligent and virtuous, and those who are interested in its successful administration." 33 Nevertheless, the Loyal Publication Society in its quotations of anti-Northern sentiment in Southern journals, seems to have been accurate enough, and to have presented a representative sampling.34 In their themes, the pamphlets, whether issued by individuals or organizations, followed the tides of the war. Many of those of most lasting significance appeared in the first two years before the establishment of the publication societies. These explored the causes of the war, questioned the right of secession, the nature of the Federal Union, and set forth war aims. A number touched upon the wartime limitations upon civil liberties, raising questions both vital and perplexing, still of concern more than a century later. In some respects the discourse on the causes of the war was tedious, reciting all the familiar arguments that had been formulated during the previous decades of sectional controversy and that 32 The heading is taken from James Russell Lowell, The Next General Election (New England Loyal Publication Society No. 230, Boston, 1864). 33 Frank H. Alfriend, "The Great Danger of the Confederacy," Southern Literary Messenger 37 (January, 1863), 42. Italics are the present writer's. 34 Cf., Northern True Men . . . (Loyal Publication Society No. 6, New York, 1863), 6, and Editorial, "Peace," Richmond Enquirer, March 5, 1863; Rebel Conditions of Peace and Mechanics of the South (Loyal Publication Society No. 30, New York, 1863), and "Attention Volunteers," Richmond Enquirer, April 13, 1861; Elements of Discord in Secessia (Loyal Publication Society No. 15, New York, 1863), 1 1 - 1 2 , and "The True Question: A Contest for the Supremacy of Race as Between the Saxon Puritan of the North, and the Norman of the South," Southern Literary Messenger 3 3 (July, 1 8 6 1 ) , 19-27.

20

INTRODUCTION

were to be carried over into Reconstruction in the writings of such Southerners as Jefferson Davis and Alexander H. Stephens and of such Northerners as Henry Wilson. There was a continuing rigidity in the competing views concerning the Constitution and the relationship between the Federal government and the states. Within the North, these historic recitals of Southern iniquities and Northern constitutional virtue, with an emphasis upon the catastrophic effects of excess states' rights, continued to be published throughout the war. Late in 1863, the Union League reprinted President Jackson's proclamation against nullification; in 1864 the Loyal Publication Society issued The Constitution Vindicated by James A. Hamilton, the staunchly Republican son of Alexander Hamilton. Sometimes these polemics wandered far into the past; in February, 1865, the Union League published States Rights. A Photograph from the Ruins of Ancient Greece by Tayler Lewis, a lawyer and Professor of Greek at Union College.35 One function of these reiterated statements was to reassure Northerners that their view of the insolubility of the Constitution was correct. Further they countered the more conservative views of some of the most brilliant legal minds in the North. These Democratic pamphleteers granted that the Constitution could not be dissolved and that secession was illegal, but insisted that the rights of the states must in no fashion be infringed upon beyond a strict reading of those powers granted to the Federal government. Theirs had been the assumption of most Northerners before the war; during the conflict even Radical Republican governors of states seemed to act upon firm states' rights premises in their relations with President Lincoln and Secretary of War Stanton. Yet the realities of war seriously eroded and modified this assumption; the growing power of railroads and war industries, cutting across state lines, made it outmoded. In the debates with the conservative Democrats, 85

A n indispensable overall survey of the Civil W a r and its themes is Randall and Donald, The Civil War and Reconstruction ( 2nd ed. ). On the impact of the war upon intellectuals, a number of whom wrote pamphlets, see George M. Fredrickson, The Inner Civil War; Northern Intellectuals and the Crisis of the Union ( N e w York, 1 9 6 5 ) . On the effect on literature, see Edmund Wilson, Patriotic Gore; Studies in the Literature of the American Civil War ( N e w York, 1 9 6 2 ) , and the monograph b y Daniel Aaron to appear in the forthcoming " T h e Impact of the Civil War. A Series Planned b y the Civil W a r Centennial Commission." On constitutional and legal questions, see James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana, Illinois,

1951)·

INTRODUCTION

21

the Republican pamphleteers presented elaborate and occasionally eloquent arguments, frequently citing historical precedents through the centuries, for a greater Federal power in relation to states, and in time of war, over individuals. A new meaning to the Constitution was emerging, and the pamphleteers defended the changed reality with fresh ideology.36 During the secession crisis, Lieber delivered two lectures on the Constitution; the Board of Trustees of Columbia University published them in pamphlet form. They attracted attention primarily as a clear recital of the conventional Northern legal arguments against the right of secession, although Lieber went further and emphasized the organic nature of the American state, transcending legal compacts. In thanking Lieber for a copy of the lectures, Professor Emory Washburn of the Harvard Law School diagnosed the function of the outpouring of pamphlets on constitutional questions: "Not only ought men to be right in their feelings but in their convictions and to that end they ought to know why the opinions they respect are sound & tenable. And when you & men like you put into their hands in a plain and intelligible form the true theory upon which this seemingly complicated system of government rests you do a substantial and lasting benefit to the whole republic." 37 President Lincoln proclaimed from the outset the basic war aim. He sought to rally behind him the great consensus embracing those both north and south of the Mason and Dixon line in the East, and of the National Road in the Middle West, including Republicans, Democrats, and those nostalgic for the Whigs or the splinter parties of the 1850's. Therefore he set a simple objective upon which they would all agree: the preservation of the Union. Scarcely had the shooting begun before abolitionists injected an additional objective impossible to ignore, the destruction of slavery. Gradually the cause of emancipation won more and more converts, and ultimately the slow shift in Northern opinion, as well as the nature of the conflict, made the retention of slavery impossible. Slavery was so divisive an issue that it was a prime subject of pamphleteering throughout the war. Most of the familiar arguments 86 On Lincoln's struggle with and victory over the Radical Republican governors, see Hesseltine, Lincoln. 17 Freidel, Lieber, 304; Lieber, What is Our Constitution, — League, Pact, or Government? . . . (New York, 1861).

22

INTRODUCTION

for and against slavery were refurbished or at least reiterated in numerous pamphlets airing the subject from the constitutional, economic, social, moral, and religious viewpoints. What was new in the debate was the abolitionist emphasis upon a point of international law that John Quincy Adams had pointed out as early as the 1840's, that in time of war (or rebellion) the power of the President as commander in chief transcended states' rights. As a military measure, the President could proclaim the emancipation of slaves in hostile areas, even as had the British during the Revolution and the War of 1812 freed slaves in fighting against the United States. When President Lincoln did, in the second year of the war, issue the Emancipation Proclamation, in effect he accepted the eradication of slavery as a second war aim. In so doing he brought upon himself the maledictions of Democratic pamphleteers, and of some conservatives still loyal to the defunct Whig party. Even through the campaign of 1864 they attacked him for venturing beyond his original single war aim. Lincoln, they warned, was threatening to destroy a salutary social system, and was making a mockery of the Constitution by ignoring the irrevocable rights of the states. The most pathetic irony of the intellectual history of the Civil War was the vehemence with which certain pamphleteers, risking prison to defend the civil liberties of the white men, insisted that the shackles of the blacks must remain unbroken by Federal power. There were a few remarkable exceptions, most notably the abolitionist Wendell Phillips, who spoke for the freedom of all men regardless of color. But most of these pamphleteers interpreted civil liberties as had John C. Calhoun. They parted company with Calhoun over little but the question of secession. Yet outside of those in the border states and the southern counties of Ohio, Indiana, and Illinois, few could have been called Southern sympathizers. The writers of the pamphlets were with few exceptions wellto-do lawyers and politicians, civic leaders in the major Northern cities. There was no touch of butternut about them; only the most hysterical Radical Republicans dared hint that they were Copperhead conspirators. Rather they were, in their unwavering allegiance and mechanical interpretation of a static prewar Constitution, like the émigrés during the French Revolution. Nor did the views of many of them change in the postwar years. Like

INTRODUCTION

23

their Southern counterparts they remained unreconstructed, well meriting the name Bourbons. And yet it was these Northern Bourbons who argued endlessly with great learning, detailed historical precedents, and considerable persuasiveness against President Lincoln's suspension of the writ of habeas corpus, the military arrests, confinements, and trials. Theirs were the views of Chief Justice Roger B. Taney during the war years and of a majority of the Supreme Court immediately thereafter. There is only slightly less irony in the reverse position of the Radical Republicans. On the grounds of expediency or that catchall phrase, "military necessity," they condoned the extension of martial law over considerable border states' areas, yet fought persistently, first for the unpopular cause of freedom and thereafter for civil rights, for the Negro slaves. These men, individually quite different in their views and objectives, are still occasionally stereotyped as the postwar pawns of the emerging business leaders. Yet it was their defense of both martial law and Negro rights that became the position of the Supreme Court of the 1940's and '50's — a court persistently attacked for its liberalism. There is an underlying logic. On the one side were arrayed the men who favored weak government and a maximum of freedom for the individual white man, even the freedom to enslave his fellow man or to harass his government in wartime. On the other side were those accepting strong government, though ofttimes reluctantly, as the only means of surviving the crisis. It was a very old conservative, but one who might well literally have been the last of the Federalists, Horace Binney, who wrote the authoritative defense of Lincoln's suspension of the habeas corpus. For the rest, in a variety of ways, at several levels, the pamphlets filled the needs implicit in the founding of the publication societies. On the part of the pro-Union organizations this meant the building of morale through extolling the achievements of the troops and their loyalty, together with attacks, frequently intermingled, upon Confederates and Copperheads. In 1864, pamphlets served their conventional political role for both Republicans and Democrats. The presidential election brought the greatest burst of pamphleteering during the war. In its aftermath organization treasuries presumably were empty, and the conflict was finally drawing to a close. Soon the nation was preoccupied with Reconstruction. Pamphlets

24

INTRODUCTION

are ephemeral like the issues that inspired them; of the millions produced and circulated, only scattered copies and a few bound sets survived in attics and libraries. They are evidence of the innumerable voices, the wide range, the pettiness and nobility, the obsolescence and innovation of the great debates that echoed through the North during the Civil War.

A Note on the Texts The numerous pamphlets appearing in the North during the Civil War serve as windows through which a later generation can glimpse the intense inner debates that stirred the area while the armies were contending on the battlefields. Most of these pamphlets are now difficult to obtain; many of them merit reprinting. This collection is less a balanced sampling than a presentation of those pamphlets that develop some of the major themes of the years of conflict. There are also examples of crudely propagandists writings, but these receive less space. Since the bases of selection were somewhat subjective and the number of pamphlets from which to choose was large, other historians would assuredly have made some different selections. The criteria for selection were similar to those established by Bernard Bailyn for his Pamphlets of the American Revolution, 17501776 (Cambridge, 1965- ): contemporary fame, representativeness, literary distinction, and originality of thought. In addition, several pamphlets appear because of the notability of the authors. The main restriction was that each pamphlet must have appeared in the North during the Civil War. Among such a large body of pamphlets representativeness became a major factor in selection; only a few of the quite able pamphlets on constitutional questions could be included. Some of the minor themes are omitted, and one pamphlet of major impact, the United States Sanitary Commission, Narrative of Privations and Sufferings of United States Officers and Soldiers While Prisoners of War in the Hands of Rebel Authorities, does not appear because it did not seem worthwhile to reproduce eighty-six pages in order to make a single obvious point. With a single exception, all of the considerable number of pamphlets reprinting speeches delivered in Congress were eliminated, no matter how vital the address, because of the relative availability of the Congressional Globe. The exception is Clement L. Vallandigham's "Great Civil War" speech, the most conspicuous Copperhead utterance of the

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war, which appears because of its interconnection with the two pamphlets that follow it. President Lincoln's public statements are available in Roy P. Basler et al, The Collected Works of Abraham Lincoln; nevertheless one of Lincoln's notable open letters is reproduced to illustrate how it was used in pamphleteering. Each pamphlet appears here in its entirety, together with appendices and associated matter. Wording and spelling remain unchanged, although obvious printer's errors have been silently corrected. The footnote numbering begins anew with each pamphlet, with the present editor's notes enclosed in square brackets. Ye Book of Copperheads (pamphlet 38) and the eight original title pages reprinted here are all from the Harvard College Library. A generation ago I received sage guidance in my introduction to the great mass of Civil War pamphlets from my mentors, the late E. M. Eriksson and William B. Hesseltine, and from John D. Hicks. Then and now, I am grateful to Mary Isabel Fry, Reference Librarian of the Henry E. Huntington Library, for painstaking answers to my inquiries. The diligence and helpfulness of Kenneth O. Jensen, Circulation Librarian, and his staff at the Harvard University Library have done much to make these volumes possible. For advice and editing I am indebted to Bernard Bailyn, Editor-inChief, and Paula Cronin, Managing Editor, of the John Harvard Library. For assistance, I wish to thank Elizabeth Forsythe, James Goodwin, and W. Edward and Sandra Harris.

UNION PAMPHLETS OF THE CIVIL WAR 1861-1865

Pamphlet ι John Lothrop Motley The Causes of the American Civil War: A Paper Contributed to the London Times. New York, 1861 [In the aftermath of the attack upon Fort Sumter, numerous pamphlets arguing the indissoluble nature of the Federal Union began to appear. One of the most eloquent and widely circulated of these was John Lothrop Motley's The Causes of the American Civil War, originally addressed to Englishmen. It was first published as a letter in the London Times over Motley's initials on May 23 and 24, 1861, and reprinted in England as a pamphlet. In part because of its origin in England, it was almost immediately hailed and reprinted in Boston and New York newspapers, and before the end of 1861 had been brought out as a pamphlet by three different New York publishers. Motley ( 1814-1877) was a Boston man of letters, renowned for his colorful and dramatic Rise of the Dutch Republic, which had appeared in 1856. During the secession crisis he was engaged in research in London. His English friends were sympathetic toward the Northern cause, but the government was less friendly, and the powerful Times was publishing what he described a little later as "long-continued, stinging, hostile articles." In February as the tier of states in the deep South established the Confederacy without Northern interference, Motley wrote home despairingly that "a government proved to be incapable of protecting its own property and the honour of its own flag is no government at all, and may fall to pieces at any moment." But after the North resorted to arms, he penned for the Times this emphatic historical defense of the Constitution as a perpetual binding force, vesting supreme power in the Federal government, and limiting the states to no more than petty attributes of sovereignty. Upon his return home soon after the appearance of the letter, Motley was delighted to receive from his friends, who had been dismayed by the otherwise hostile attitude of the Times, their "earnest and perhaps somewhat exaggerated commendations." 1 [George William Curtis, ed., The Correspondence York, 1889), II, 358, 372.]

of John Lothrop

Motley

( New

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THE de facto question in America has been referred at last to the dread arbitrament of civil war. Time and events must determine whether the "great Republic" is to disappear from the roll of nations, or whether it is destined to survive the storm which has gathered over its head. There is, perhaps, a readiness in England to prejudge the case; a disposition not to exult in our downfall, but to accept the fact; for nations, as well as individuals, may often be addressed in the pathetic language of the poet — Donee eris felix, multos numerabis amicos, Tempora cum fuerint nubila, nullus erit.

Yet the trial by the ordeal of battle has hardly commenced, and it would be presumptuous to affect to penetrate the veil of even the immediate future. But the question de jure is a different one. The right and the wrong belong to the past, are hidden by no veil, and may easily be read by all who are not willfully blind. Yet it is often asked, Why have the Americans taken up arms? Why has the United States Government plunged into what is sometimes called "this wicked war?" Especially it is thought amazing in England that the President should have recently called for a great army of volunteers and regulars, and that the inhabitants of the Free States should have sprung forward as one man at his call, like men suddenly relieved from a spell. It would have been amazing had the call been longer delayed. The national flag, insulted and defied for many months, had at last been lowered, after the most astonishing kind of siege recorded in history, to an armed and organized rebellion; and a prominent personage in the government of the Southern "Confederacy" is reported to have proclaimed, amid the exultations of victory, that before the ist of May the same cherished emblem of our nationality should be struck from the Capitol at Washington. An advance of the "Confederate troops" upon that city; the flight or capture of the President and his Cabinet; the seizure of the national archives, the national title deeds, and the whole national machinery of foreign intercourse and internal administration, by the Confederates; and the proclamation from the American palladium itself of the Montgomery Constitution, in place of the one devised by Washington, Madison, Hamilton, and Jay — a constitution in which slavery should be the universal law of the

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land, the corner-stone of the political edifice — were events which seemed for a few days of intense anxiety almost probable. THE UNION SENTIMENT.

Had this really been the result, without a blow struck in defense of the national government and the old Constitution, it is certain that the contumely poured forth upon the Free States by their domestic enemies and by the world at large would have been as richly deserved as it would have been amply bestowed. At present such a catastrophe seems to have been averted. But the levy in mass of such a vast number of armed men in the Free States, in swift response to the call of the President, shows how deep and pervading is the attachment to the Constitution and to the flag of the Union in the hearts of the nineteen millions who inhabit those States. It is confidently believed, too, that the sentiment is not wholly extinguished in the nine million white men who dwell in the Slave States, and that, on the contrary, there exists a large party throughout that country who believe that the Union furnishes a better protection for life, property, law, civilization, and liberty, than even the indefinite extension of African slavery can do. THE CONSPIRACY.

At any rate, the loyalty of the Free States has proved more intense and passionate than it had ever been supposed to be before. It is recognized throughout their whole people that the Constitution of 1787 had made us a nation. The efforts of a certain class of politicians for a long period had been to reduce our commonwealth to a confederacy. So long as their efforts had been confined to argument, it was considered sufficient to answer the argument; but now that secession, instead of remaining a topic of vehement and subtile discussion, has expanded into armed and fierce rebellion and revolution, civil war is the inevitable result. It is the result foretold by sagacious statesmen almost a generation ago, in the days of the tariff "nullification." "To begin with nullification," said Daniel Webster, in 1833, "with the avowed intention, nevertheless, not to proceed to secession, dismemberment, and general revolution, is as if one were to take the plunge of Niagara, and cry out that he would stop half way down." And now the plunge of secession has been taken, and we are all struggling in the vortex of general revolution.

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UNION PAMPHLETS THE UNITED STATES A COMMONWEALTH.

The body politic known for seventy years as the United States of America is not a confederacy, not a compact of sovereign States, not a copartnership; it is a commonwealth, of which the Constitution drawn up at Philadelphia, by the Convention of 1787, over which Washington presided, is the organic, fundamental law. We had already had enough of a confederacy. The thirteen rebel provinces, afterward the thirteen original independent States of America, had been united to each other during the Revolutionary War by articles of confederacy. "The said States hereby enter into a firm league of friendship with each other." Such was the language of 1781, and the league or treaty thus drawn up was ratified, not by the people of the States, but by the State governments — the legislative and executive bodies, namely, in their corporate capacity. The Continental Congress, which was the central administrative board during this epoch, was a diet of envoys from sovereign States. It had no power to act on individuals. It could not command the States. It could move only by requisitions and recommendations. Its functions were essentially diplomatic, like those of the States-General of the old Dutch Republic, like those of the modern Germanic Confederation. THE EARLY HISTORY OF THE NATION.

We were a league of petty sovereignties. When the war had ceased, when our independence had been acknowledged in 1783, we sank rapidly into a condition of utter impotence, imbecility, anarchy. We had achieved our independence, but we had not constructed a nation. We were not a body politic. No laws can be enforced, no insurrections suppressed, no debt collected. Neither property nor life was secure. Great Britain had made a treaty of peace with us, but she scornfully declined a treaty of commerce and amity; not because we had been rebels, but because we were not a state — because we were a mere dissolving league of jarring provinces, incapable of guaranteeing the stipulations of any commercial treaty. We were unable even to fulfill the condition of the treaty of peace, and enforce the stipulated collection of debts due to British subjects; and Great Britain refused, in consequence, to give up the military posts which she held within our frontiers.

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For twelve years after the acknowledgment of our independence we were mortified by the spectacle of foreign soldiers occupying a long chain of fortresses south of the great lakes and upon our own soil. We were a confederacy. We were sovereign States. And these were the fruits of such a confederacy and such sovereignty. It was, until the immediate present, the darkest hour of our history. But there were patriotic and sagacious men in those days, and their efforts at last rescued us from the condition of a confederacy. The "Constitution of the United States" was an organic law, enacted by the sovereign people of that whole territory which is commonly called in geographies and histories the United States of America. It was empowered to act directly, by its own legislative, judicial, and executive machinery, upon every individual in the country. It could seize his property, it could take his life, for causes of which itself was the judge. The States were distinctly prohibited from opposing its decrees or from exercising any of the great functions of sovereignty. The Union alone was supreme, "anything in the Constitution and laws of the States to the contrary notwithstanding." Of what significance, then, was the title of "sovereign" States, arrogated in later days by communities which had voluntarily abdicated the most vital attributes of sovereignty? THE GOVERNMENT AN ESTABLISHED AUTHORITY.

But, indeed, the words "sovereign" and "sovereignty" are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves "free and independent States," but the men of those days knew that the word "sovereign" was a term of feudal origin. When their connection with a timehonored feudal monarchy was abruptly severed, the word "sovereign" had no meaning for us. A sovereign is one who acknowledges no superior, who possesses the highest authority without control, who is supreme in power. How could any one State of the United States claim such characteristics at all, least of all after its inhabitants, in their primary assemblies, had voted to submit themselves, without limitation of time, to a Constitution which was declared supreme? The only intelligible source of power in a country beginning its history de novo after a revolution, in a land never subjected to military or feudal conquest, is the will of the people of the whole land as expressed by a majority. At the present moment,

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unless the Southern revolution shall prove successful, the United States Government is a fact, an established authority. In the period between 1783 and 1787 we were in chaos. In May of 1787 the Convention met at Philadelphia, and, after some months' deliberation, adopted with unprecedented unanimity the project of the great law which, so soon as it should be accepted by the people, was to be known as the Constitution of the United States. THE GOVERNMENT NOT A

COMPACT.

It was not a compact. Who ever heard of a compact to which there were no parties, or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions, and the "people of the United States" is the single party by whom alone the instrument is executed. The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It "was ordained and established" over the States by a power superior to the States — by the people of the whole land in their aggregate capacity, acting through conventions of delegates expressly chosen for the purpose within each State, independently of the State governments, after the project had been framed. THE EARLY STRUGGLES OF PARTIES.

There had always been two parties in the country during the brief but pregnant period between the abjuration of British authority and the adoption of the Constitution of 1787. There was a party advocating State rights and local self-government in its largest sense, and a party favoring a more consolidated and national government. The National or Federal party triumphed in the adoption of the new government. It was strenuously supported and bitterly opposed on exactly the same grounds. Its friends and foes both agreed that it had put an end to the system of confederacy. Whether it were an advantageous or a noxious change, all agree that the thing had been done,

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In all our deliberations [says the letter accompanying and recommending the Constitution to the people] we kept steadily in view that which appeared to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, safety, perhaps our national existence. (Journal of the Convention, ι Story, 368.)

And an eloquent opponent denounced the project for this very same reason: That this is a consolidated government [said Henry] is demonstrably clear. The language is, "we the people," instead of "we the States." It must be one great consolidated national government of the people of all the States.

And the Supreme Court of the United States, after the government had been established, held this language in an important case, "Gibbons agt. Ogden:" It has been said that the States were sovereign, were completely independent, and were connected with each other by a league. This is true. But when these allied sovereignties converted their league into a government, when they converted their congress of ambassadors into a legislature, empowered to enact laws, the whole character in which the States appear underwent a change.

There was never a disposition in any quarter in the early days of our constitutional history to deny this great fundamental principle of the Republic. In the most Justice Story], mental law, as suspend, or to 325·)

elaborate expositions of the Constitution by its friends [says its character as a permanent form of government, as a fundaa supreme rule, which no State was at liberty to disregard, to annul, was constantly admitted and insisted upon. (1 Story,

The fears of its opponents, then, were that the new system would lead to a strong, to an over-centralized government. The fears of its friends were that the central power of theory would prove inefficient to cope with the local, or State, forces in practice. The inexperience of the last thirty years and the catastrophe of the present year have shown which class of fears were the more reasonable. OPINIONS OF THE FATHERS.

Had the Union thus established in 1787 been a confederacy, it might have been argued, with more or less plausibility, that the States which peaceably acceded to it, might at pleasure peaceably

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secede from it. It is none the less true that such a proceeding would have stamped the members of the convention — Washington, Madison, Jay, Hamilton, and their colleagues — with utter incompetence; for nothing can be historically more certain than that their object was to extricate us from the anarchy to which that principle had brought us. However gross a heresy it may be [says the Federalists, recommending the new Constitution] to maintain that a party to a compact has a right to revoke that compact, the doctrine has had respectable advocates. The possibility of such a question shows the necessity of laying the foundation of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people.

Certainly, the most venerated expounders of the Constitution — Jay, Marshall, Hamilton, Kent, Story, Webster — were of opinion that the intention of the convention to establish a permanent consolidated government, a single commonwealth, had been completely successful. The great and fundamental defect of the Confederation of 1781 [says Chancellor Kent], which led to its eventual overthrow, was that, in imitation of all former confederacies, it carried the decrees of the federal council to the States in their sovereign capacity. The great and incurable defect of all former federal governments, such as the Amphictyonic, Achaean, and Lycian confederacies, and the Germanic, Helvetic, Hanseatic, and Dutch republics, is that they were sovereignties over sovereignties. The first effort to relieve the people of the country from this state of national degradation and ruin came from Virginia. The general convention afterward met at Philadelphia in May, 1787. The plan was submitted to a convention of delegates chosen by the people at large in each State for assent and ratification. Such a measure was laying the foundations of the fabric of our national polity where alone they ought to be laid — on the broad consent of the people. (1 Kent, 225.)

It is true that the consent of the people was given by the inhabitants voting in each State; but in what other conceivable way could the people of the whole country have voted? "They assembled in the several States," says Story; "but where else could they assemble?" SECESSION A RETURN T O CHAOS.

Secession is, in brief, the return to chaos from which tve emerged three quarters of a century since. No logical sequence can be more

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perfect. If one State has a right to secede to-day, asserting what it calls its sovereignty, another may, and probably will, do the same to-morrow, a third on the next day, and so on, until there are none left to secede from. Granted the premises that each State may peaceably secede from the Union, it follows that a county may peaceably secede from a State, and a town from a county, until there is nothing left but a horde of individuals all seceding from each other. The theory that the people of a whole country in their aggregate capacity are supreme is intelligible; and it has been a fact, also, in America for seventy years. But it is impossible to show, if the people of a State be sovereign, that the people of a county, or of a village, and the individuals of the village, are not equally sovereign, and justified in "resuming their sovereignty" when their interest or their caprice seems to impel them. The process of disintegration brings back the community to barbarism, precisely as its converse has built up commonwealths — whether empires, kingdoms, or republics — out of original barbarism. Established authority, whatever the theory of its origin, is a fact. It should never be lightly or capriciously overturned. They who venture on the attempt should weigh well the responsibility that is upon them. Above all, they must expect to be arraigned for their deeds before the tribunal of the civilized world and of future ages — a court of last appeal — the code of which is based on the Divine principles of right and reason, which are dispassionate and eternal. No man, on either side of the Atlantic, with Anglo-Saxon blood in his veins, will dispute the right of a people or of any portion of a people to rise against oppression, to demand redress of grievances, and, in case of denial of justice, to take up arms to vindicate the sacred principle of liberty. Few Englishmen or Americans will deny that the source of government is the consent of the governed, or that every nation has a right to govern itself according to its will. When the silent consent is changed to fierce remonstrance the revolution is impending. REBELLION NOT REVOLUTION.

The right of revolution is indisputable. It is written on the whole record of our race. British and American history is made up of rebellion and revolution. Many of the crowned kings were rebels or usurpers. Hampden, Pym, and Oliver Cromwell; Washington,

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Adams, and Jefferson — all were rebels. It is no word of reproach. But these men all knew the work they had set themselves to do. They never called their rebellion "peaceable secession." They were sustained by the consciousness of right when they overthrew established authority, but they meant to overthrow it. They meant rebellion, civil war, bloodshed, infinite suffering for themselves and their whole generation, for they accounted them welcome substitutes for insulted liberty and violated right. There can be nothing plainer, then, than the American right of revolution. But, then, it should be called revolution. "Secession, as a revolutionary right," said Daniel Webster in the Senate, nearly thirty years ago, in words that now sound prophetic — Is intelligible. As a right to be proclaimed in the midst of civil commotions, and asserted at the head of armies, I can understand it. But as a practical right, existing under the Constitution, and in conformity with its provisions, it seems to be nothing but an absurdity, for it supposes resistance to government under the authority of government itself; it supposes dismemberment without violating the principles of Union; it supposes opposition to law without crime; it supposes the violation of oaths without responsibility; it supposes the total overthrow of government without revolution. THE FOUNDERS OF THE

COMMONWEALTH.

The men who had conducted the American people through a long and fearful revolution were the founders of the new commonwealth which permanently superseded the subverted authority of the crown. They placed the foundations on the unbiased, untrammeled consent of the people. They were sick of leagues, of petty sovereignties, of governments which could not govern a single individual. The framers of the constitution, which has now endured three-quarters of a century, and under which the nation has made a material and intellectual progress never surpassed in history, were not such triflers as to be ignorant of the consequences of their own acts. The constitution which they offered, and which the people adopted as its own, talked not of sovereign States — spoke not the word confederacy. In the very preamble to the instrument are inserted the vital words which show its character, "We the people of the United States, to insure a more perfect union, and to secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution." Sic volo, sic jubeo. It is the language of a sovereign solemnly speaking to the world. It is the

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promulgation of a great law, the norma agendi of a new commonwealth. It is no compact. A compact [says Blackstone] is a promise proceeding from us. L a w is a command directed to us. The language of a compact is, W e will or will not do this; that of a law is, Thou shalt or shalt not do it. ( ι B. 38, 44, 45.) THE LANGUAGE OF THE

CONSTITUTION.

And this is throughout the language of the Constitution. Congress shall do this; the President shall do that; the States shall not exercise this or that power. Witness, for example, the important clauses by which the "sovereign" States are shorn of all the great attributes of sovereignty — no State shall coin money, nor emit bills of credit, nor pass ex post facto laws, nor laws impairing the obligation of contracts, nor maintain armies and navies, nor grant letters of marque, nor make compacts with other States, nor hold intercourse with foreign powers, nor grant titles of nobility; and that most significant phrase "This Constitution, and the laws made in pursuance thereof, shall be the supreme law of the land." Could language be more imperial? Could the claim to State "sovereignty" be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior? The Constitution is perpetual, not provisional or temporary. It is made for all time — "for ourselves and our posterity." It is absolute within its sphere. "This Constitution shall be the supreme law of the land, anything in the constitution or laws of a State to the contrary notwithstanding." Of what value, then, is a law of a State declaring its connection with the Union dissolved? The Constitution remains supreme and is bound to assert its supremacy till overpowered by force. The use of force — of armies and navies of whatever strength — in order to compel obedience to the civil and constitutional authority, is not "wicked war," is not civil war, is not war at all. So long as it exists the Government is obliged to put forth its strength when assailed. The President, who has taken an oath before God and man to maintain the Constitution and laws, is perjured if he yields the Constitution and laws to armed rebellion without a struggle. He knows nothing of States. Within the sphere of the United States Government he deals with individuals only, citizens

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of the great republic, in whatever portion of it they may happen to live. He has no choice but to enforce the laws of the republic wherever they may be resisted. When he is overpowered the government ceases to exist. The Union is gone, and Massachusetts, Rhode Island, and Ohio are as much separated from each other as they are from Georgia or Louisiana. Anarchy has returned upon us. The dismemberment of the commonwealth is complete. We are again in the chaos of 1785. WHY THE CONSTITUTION DOES NOT PROVIDE FOR SECESSION.

But it is sometimes asked why the Constitution did not make a special provision against the right of secession. How could it do so? The people created a Constitution over the whole land, with certain defined, accurately enumerated powers, and among these were all the chief attributes of sovereignty. It was forbidden to a State to coin money, to keep armies and navies, to make compacts with other States, to hold intercourse with foreign nations, to oppose the authority of the Government. To do any one of these things is to secede, for it would be physically impossible to do any one of them without secession. It would have been puerile for the Constitution to say formally to each State, "Thou shalt not secede." The Constitution, being the supreme law, being perpetual, and having expressly forbidden to the States those acts without which secession is an impossibility, would have been wanting in dignity had it used such superfluous phraseology. This Constitution is supreme, whatever laws a State may enact, says the organic law. Was it necessary to add, "and no State shall enact a law of secession?" To add to a great statute, in which the sovereign authority of the land declares its will, a phrase such as "and be it further enacted that the said law shall not be violated," would scarcely seem to strengthen the statute. It was accordingly enacted that new States might be admitted; but no permission was given for a State to secede. PROVISIONS FOR AMENDMENT.

Provisions were made for the amendment of the Constitution from time to time, and it was intended that those provisions should be stringent. A two-thirds vote in both Houses of Congress, and a

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ratification in three quarters of the whole number of States, are conditions only to be complied with in grave emergencies. But the Constitution made no provision for its own dissolution, and, if it had done so, it would have been a proceeding quite without example in history. A constitution can only be subverted by revolution, or by foreign conquest of the land. The revolution may be the result of a successful rebellion. A peaceful revolution is also conceivable in the case of the United States. The same power which established the Constitution may justly destroy it. The people of the whole land may meet, by delegates, in a great national convention, as they did in 1787, and declare that the Constitution no longer answers the purpose for which it was ordained; that it no longer can secure the blessings of liberty for the people in present and future generations, and that it is therefore forever abolished. When that project has been submitted again to the people voting in their primary assemblies, not influenced by fraud or force, the revolution is lawfully accomplished and the Union is no more. WHAT IS REBELLION ?

Such a proceeding is conceivable, although attended with innumerable difficulties and dangers. But these are not so great as those of the civil war into which the action of the seceding States has plunged the country. The division of the national domain and other property, the navigation and police of the great rivers, the arrangement and fortification of frontiers, the transit of the isthmus, the mouth of the Mississippi, the control of the Gulf of Mexico, these are significant phrases which have an appalling sound; for there is not one of them that does not contain the seeds of war. In any separation, however accomplished, these difficulties must be dealt with, but there would seem less hope of arriving at a peaceful settlement of them now that the action of the seceding States has been so precipitate and lawless. For a single State, one after another, to resume those functions of sovereignty which it had unconditionally abdicated when its people ratified the Constitution of 1787, to seize forts, arsenals, custom-houses, post-offices, mints, and other valuable property of the Union, paid for by the treasure of the Union, was not the exercise of a legal function, but it was rebellion, treason, and plunder.

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ATTRIBUTES.

It is strange that Englishmen should find difficulty in understanding that the United States Government is a nation among the nations of the earth; a constituted authority, which may be overthrown by violence, as may be the fate of any State, whether kingdom or republic, but which is false to the people if it does not its best to preserve them from the horrors of anarchy, even at the cost of blood. The "United States" happens to be a plural title, but the commonwealth thus designated is a unit, "e pluribus unum." The Union alone is clothed with imperial attributes; the Union alone is known and recognized in the family of nations; the Union alone holds the purse and the sword, regulates foreign intercourse, imposes taxes on foreign commerce, makes war and concludes peace. The armies, the navies, the militia belong to the Union alone, and the President is commander-in-chief of all. No State can keep troops or fleets. What man in the civilized world has not heard of the United States? What man in England can tell the names of all the individual States? And yet, with hardly a superficial examination of our history and our Constitution, men talk glibly about a confederacy, a compact, a copartnership, and the right of a State to secede at pleasure, not knowing that by admitting such loose phraseology and such imaginary rights, we should violate the first principles of our political organization, should fly in the face of our history, should trample under foot the teachings of Jay, Hamilton, Washington, Marshall, Madison, Dane, Kent, Story, and Webster, and, accepting only the dogmas of Mr. Calhoun as infallible, surrender forever our national laws and our national existence. A PARALLEL.

Englishmen themselves live in a united empire; but if the kingdom of Scotland should secede, should seize all the national property, forts, arsenals, and public treasure on its soil, organize an army, send forth foreign ministers to Louis Napoleon, the Emperor of Austria, and other Powers, issue invitations to all the pirates of the world to prey upon English commerce, screening their piracy from punishment by the banner of Scotland, and should announce its intention of planting that flag upon Buckingham Palace, it is

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probable that a blow or two would be struck to defend the national honor and the national existence, without fear that the civil war would be denounced as wicked and fratricidal. Yet it would be difficult to show that the State of Florida, for example, a Spanish province, purchased for national purposes some forty years ago by the United States Government for several millions, and fortified and furnished with navy yards for national uses at a national expense of many more millions, and numbering at this moment a population of only 80,000 white men, should be more entitled to resume its original sovereignty than the ancient kingdom of William the Lion and Robert Bruce. The terms of the treaty between England and Scotland were perpetual, and so is the Constitution of the United States. The United Empire may be destroyed by revolution and war, and so may the United States; but a peaceful and legal dismemberment without the consent of the majority of the whole people is an impossibility. THE AMERICAN

REVOLUTION.

But it is sometimes said that the American Republic originated in secession from the mother country, and that it is unreasonable of the Union to resist the seceding movement on the part of the new Confederacy. But it so happens that the one case suggests the other only by the association of contrast. The thirteen colonies did not intend to secede from the British Empire. They were forced into secession by a course of policy on the part of the mother country such as no English administration at the present day can be imagined capable of adopting. Those Englishmen in America were loyal to the crown; but they exercised the right which cis-Atlantic or transatlantic Englishmen have always exercised, of resistance to arbitrary government. Taxed without being represented, and insulted by measures taken to enforce the odious but not exorbitant imposts, they did not secede, nor declare their independence. On the contrary, they made every effort to avert such a conclusion. In the words of the "forest-born Demosthenes" — as Lord Byron called the great Virginian, Patrick Henry — the Americans "petitioned, remonstrated, cast themselves at the foot of the throne, and implored its interposition to arrest the tyrannical hands of the ministers and Parliament. But their petitions were slighted, their remon-

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strances procured only additional violence and insult, as they were spurned with contempt from the foot of the throne." The "Boston massacre," the Boston port-bill, the Boston "tea party," the battle of Lexington, the battle of Bunker's Hill, were events which long preceded the famous Declaration of Independence. It was not till the colonists felt that redress for grievances was impossible, that they took the irrevocable step, and renounced their allegiance to the Crown. The revolution had come at last, they had been forced into it, but they knew that it was revolution, and that they were acting at the peril of their lives. "We must be unanimous in this business," said Hancock; "we must all hang together." "Yes," replied Franklin, "or we shall all hang separately." The risk incurred by the colonists was enormous, but the injury to the mother country was comparatively slight. They went out into darkness and danger themselves, but the British Empire was not thrown into anarchy and chaos by their secession. THE CAUSE OF THE SOUTHERN REBELLION.

Thus, their course was the reverse of that adopted by the South. The prompt secession of seven States because of the constitutional election of a President over the candidates voted for by their people was the redress in advance of grievances which they may, reasonably or unreasonably, have expected, but which had not yet occurred. There is the high authority of the Vice-President of the Southern "Confederacy," who declared, a week after the election of Mr. Lincoln, that the election was not a cause for secession, and that there was no certainty that he would have either the power or the inclination to invade the constitutional rights of the South. In the Free States it was held that the resolutions of the convention by which Mr. Lincoln was nominated were scrupulously and conscientiously framed to protect all those constitutional rights. The question of Slavery in the Territories, of the future extension of Slavery, was one which had always been an open question, and on which issue was now joined. But it was no question at all that Slavery within a State was sacred from all interference by the general Government, or by the Free States, or by indiivduals in those States; and the Chicago Convention strenuously asserted that doctrine.

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THE QUESTION OF FREE TRADE.

The question of Free Trade, which is thrust before the English public by many journals, had no immediate connection with the secession, although doubtless the desire of direct trade with Europe has long been a prominent motive at the South. The Gulf States seceded under the moderate tariff of 1857, for which South Carolina voted side by side with Massachusetts. The latter State, although for political, not economical, reasons it thought itself obliged since the secession to sustain the Pennsylvania interest by voting for the absurd Morrill bill, is not in favor of protection. On the contrary, the great manufactories on the Merrimac River have long been independent of protection, and export many million dollars' worth of cotton and other fabrics to foreign countries, underselling or competing with all the world in open market. It would be impossible for any European nation to drive the American manufacturer from the markets of the American continent in the principal articles of cheap clothing for the masses, tariff or no tariff. This is a statistical fact which can not be impugned. The secession of the colonies, after years of oppression and grievances, for which redress had been sought in vain, left the British Empire, 3,000 miles off, in security, with constitution and laws unimpaired, even if its colonial territory were seriously diminished. The secession of the Southern States, in contempt of any other remedy for expected grievances, is followed by the destruction of the whole body politic of which they were vital parts. PERILS OF THE REPUBLIC.

Not only is the united republic destroyed if the revolution prove successful, but even if the people of the Free States have the enthusiasm and sagacity to re-construct their Union, and by a new national convention to re-ordain and re-establish the time-honored Constitution, still an immense territory is lost. But the extent of that territory is not the principal element in the disaster. The world is wide enough for all. It is the loss of the Southern marine frontier which is fatal to the Republic. Florida, and the vast Louisiana territory purchased by the Union from foreign countries, and garnished with fortresses at the expense of the Union, are fallen, with all these

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improvements, into the hands of a foreign and unfriendly power. Should the dire misfortune of a war with a great maritime nation, with England or France, for example, befall the Union, its territory, hitherto almost impregnable, might now be open to fleets and armies acting in alliance with a hostile "Confederacy," which has become possessed of an important part of the Union's maritime line of defense. Moreover, the Union has 12,000 ships, numbering more than 5,000,000 tons, the far greater part of which belongs to the Free States, and the vast commerce of the Mississippi and the Gulf of Mexico requires and must receive protection at every hazard. Is it strange that the Union should make a vigorous, just, and lawful effort to save itself from the chaos from which the Constitution of 1787 rescued the country? Who that has read and pondered the history of that dark period does not shudder at the prospect of its return? A

COMPARISON.

But yesterday we were a State — the great republic — prosperous and powerful, with a flag known and honored all over the world. Seventy years ago we were a helpless league of bankrupt and lawless petty sovereignties. We had a currency so degraded that a leg of mutton was cheap at $1,000. The national debt, incurred in the War of Independence, had hardly a nominal value, and was considered worthless. The absence of law, order, and security for life and property was as absolute as could be well conceived in a civilized land. Debts could not be collected, courts could enforce no decrees, insurrections could not be suppressed. The army of the Confederacy numbered eighty men. From this condition the Constitution rescued us. That great law, reported by the General Convention of 1787, was ratified by the people of all the land voting in each State for a ratifying convention chosen expressly for that purpose. It was promulgated in the name of the people: "We, the people of the United States, in order to form a more perfect Union, and to secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution." It was ratified by the people — not by the States acting through their governments, legislative and executive, but by the people electing especial delegates within each

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State; and it is important to remember that in none of these ratifying conventions was any reserve made of a State's right to repeal the Union or to secede. Many criticisms were offered in the various ratifying ordinances, many amendments suggested, but the acceptance of the Constitution, the submission to the perpetual law, was in all cases absolute. The language of Virginia was most explicit on this point. "The powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whenever the same shall be perverted to their injury or oppression." That the people of the United States, expressing their will solemnly in national convention, are competent to undo the work of their ancestors, and are fully justified in so doing when the Constitution shall be perverted to their injury and oppression, there is no man in the land that doubts. This course has been already indicated as the only peaceful revolution possible; but such a proceeding is very different from the secession ordinance of a single State resuming its sovereignty of its own free will, and without consultation with the rest of the inhabitants of the country. There was no reservation [says Justice Story] of any right on the part of any State to dissolve its connection, or to abrogate its dissent, or to suspend the operation of the Constitution as to itself. ORDER OUT OF CHAOS.

And thus, when the ratifications had been made, a new commonwealth took its place among the nations of the earth. The effects of the new Constitution were almost magical. Order sprang out of chaos. Law resumed its reign; debts were collected; life and property became secure; the national debt was funded and ultimately paid, principal and interest, to the uttermost farthing; the articles of the treaty of peace in 1783 were fulfilled, and Great Britain, having an organized and united State to deal with, entered into a treaty of commerce and amity with us — the first and the best ever negotiated between the two nations. Not the least noble of its articles (the 21st) provided that the acceptance by the citizens or subjects of either country of foreign letters of marque should be treated and punished as piracy. Unfortunately, that article and several others were limited to twelve years, and were not subsequently renewed.

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The debts due to British subjects were collected, and the British government at last surrendered the forts on our soil. THE STATE OF THE NATION.

At last we were a nation, with a flag respected abroad and almost idolized at home as the symbol of union and coming greatness, and we entered upon a career of prosperity and progress never surpassed in history. The autonomy of each State, according to which its domestic and interior affairs are subject to the domestic legislature and executive, was secured by the reservation to each State of powers not expressly granted to the Union by the Constitution. Supreme within its own orbit, which is traced from the same center of popular power whence the wider circumference of the general government is described, the individual State is surrounded on all sides by that all-embracing circle. The reserved and unnamed powers are many and important, but the State is closely circumscribed. Thus, a State is forbidden to alter its form of government. "Thou shalt forever remain a republic," says the United States Constitution to each individual State. A State is forbidden, above all, to pass any law conflicting with the United States Constitution or laws. Moreover, every member of Congress, every member of a State legislature, every executive or judicial officer in the service of the Union or of a separate State, is bound by solemn oath to maintain the United States Constitution. This alone would seem to settle the question of secession ordinances. So long as the Constitution endures, such an ordinance is merely the act of conspiring and combining individuals, with whom the general government may deal. When it falls in the struggle, and becomes powerless to cope with them, the Constitution has been destroyed by violence. Peaceful acquiescence in such combinations is perjury and treason on the part of the chief magistrate of the country, for which he may be impeached and executed. Yet men speak of Mr. Lincoln as having plunged into wicked war. They censure him for not negotiating with envoys who came, not to settle grievances, but to demand recognition of the dismemberment of the republic which he had just sworn to maintain. RELATIVE POWERS OF THE STATE AND FEDERAL GOVERNMENTS.

It is true that the ordinary daily and petty affairs of men come more immediately than larger matters under the cognizance of the

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State governments, tending thus to foster local patriotism and local allegiance. At the same time, as all controversies between citizens of different States come within the sphere of the federal courts, and as the manifold and conflicting currents of so rapid a national life as the American can rarely be confined within narrow geographical boundaries, it follows that the federal courts, even for domestic purposes as well as foreign, are parts of the daily, visible functions of the body politic. The Union is omnipresent. The custom-house, the court-house, the arsenal, the village post-office, the muskets of the militia, make the authority of the general government a constant fact. Moreover, the restless, migratory character of the population, which rarely permits all the members of one family to remain denizens of any one State, has interlaced the States with each other and all with the Union to such an extent that a painless excision of a portion of the whole nation is an impossibility. To cut away the pound of flesh and draw no drop of blood surpasses human ingenuity. THE DOCTRINE OF SECESSION A NEW

ONE.

Neither the opponents nor friends of the new government in the first generation after its establishment held the doctrine of secession. The States' right party and the Federal party disliked or cherished the government because of the general conviction that it was a constituted and centralized authority, permanent and indivisible, like that of any other organized nation. Each party continued to favor or to oppose a strict construction of the instrument; but the doctrine of nullification and secession was a plant of later growth. It was an accepted fact that the United States was not a confederacy. That word was never used in the Constitution except once by way of prohibition. We were a nation, not a copartnership, except indeed in the larger sense in which every nation may be considered a copartnership — a copartnership of the present with the past and with the future. To borrow the lofty language of Burke: A State ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked upon with other reverence, because it is not a partnership in things subservient only to gross animal existence, of a temporary and perishable nature. It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all

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perfection, a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.

And the simple phrase of the preamble to our Constitution is almost as pregnant — "To secure the blessings of liberty to us and our posterity." HOW THE REBELLION GREW.

But as the innumerable woes of disunion, out of which we had been rescued by the Constitution, began to fade into the past, the allegiance to the Union, in certain regions of the country, seemed rapidly to diminish. It was reserved to the subtile genius of Mr. Calhoun, one of the most logical, brilliant, and persuasive orators that ever lived, to embody once more in a set of sounding sophisms the main arguments which had been unsuccessfully used in a former generation to prevent the adoption of the Constitution, and to exhibit them now as legitimate deductions from the Constitution. The memorable tariff controversy was the occasion in which the argument of State sovereignty was put forth in all its strength. In regard to the dispute itself, there can be no doubt that the South was in the right and the North in the wrong. The production by an exaggerated tariff of a revenue so much over and above the wants of government, that it was at last divided among the separate States and foolishly squandered, was the most triumphant reductio ab absurdum that the South could have desired. But it is none the less true that the nullification by a State legislature of a federal law was a greater injury to the whole nation than a foolish tariff, long since repealed, had inflicted. It was a stab to the Union in its vital part. The blow was partially parried, but it may be doubted whether the wound has ever healed. WHAT SUCCESSFUL SECESSION WOULD

ACCOMPLISH.

Tariffs, the protective system, free trade — although the merits of these questions must be considered as settled by sound thinkers in all civilized lands, must, nevertheless, remain in some countries the subjects of honest argument and legitimate controversy. When all parts of a country are represented — and especially in the case of the United States, where the Southern portion has three fifths of a certain kind of "property" represented, while the North has no property represented — reason should contend with error for vie-

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tory, trusting to its innate strength. And until after the secession of the Gulf States the moderate tariff of 1857 was in operation, with no probability of its repeal. Moreover, the advocates of the enlightened system of free trade should reflect, that should the fourteen Slave States become permanently united in a separate confederacy, the state of their internal affairs will soon show a remarkable revolution. The absence of the Fugitive Law will necessarily drive all the slaves from, what are called the border States; and he must be a shallow politician who dreams here in England that free trade with all the world, and direct taxation for revenue, will be the policy of the new and expensive military empire which will arise. Manufacturers of cotton and woolen will spring up on every river and mountain stream in the Northern Slave States, the vast mineral wealth of their territories will require development, and the cry for protection to native industry in one quarter will be as surely heeded as will be that other cry from the Gulf of Mexico, now partially suppressed for obvious reasons, for the African slave trade. To establish a great Gulf empire, including Mexico, Central America, Cuba, and other islands with unlimited cotton fields and unlimited negroes, this is the golden vision in pursuit of which the great Republic has been sacrificed, the beneficent Constitution subverted. And already the vision has fled, but the work of destruction remains. THE TARIFF QUESTION.

The mischief caused by a tariff, however selfish or however absurd, may be temporary. In the last nineteen years there have been four separate tariffs passed by the American Congress, and nothing is more probable than that the suicidal Morrill tariff will receive essential modifications even in the special session of July; but the woes caused by secession and civil war are infinite; and whatever be the result of the contest, this generation is not likely to forget the injuries already inflicted. A GENERAL REVIEW OF THE SITUATIONS.

The great secession, therefore, of 1860-61 is a rebellion, like any other insurrection against established authority, and has been followed by civil war, as its immediate and inevitable consequence. If successful, it is revolution; and whether successful or not, it will

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be judged before the tribunal of mankind and posterity according to the eternal laws of reason and justice. Time and history will decide whether it was a good and sagacious deed to destroy a fabric of so long duration because of the election of Mr. Lincoln; whether it were wise and noble to substitute over a large portion of the American soil a confederacy of which slavery, in the words of its Vice-President, is the corner-stone, for the old Republic, of which Washington, with hfe own hand, laid the corner-stone. It is conceded by the North that it has received from the Union innumerable blessings. But it would seem that the Union had also conferred benefits on the South. It has carried its mails at a large expense; it has recaptured its fugitive slaves; it has purchased vast tracts of foreign territory, out of which a whole tier of slave States has been constructed; it has annexed Texas; it has made war with Mexico; it has made an offer — not likely to be repeated, however — to purchase Cuba, with its multitude of slaves, at a price, according to report, as large as the sum paid by England for the emancipation of her slaves. Individuals in the free States have expressed themselves freely on slavery, as upon every topic of human thought, and this must ever be the case where there is freedom of the press and of speech. The number of professed abolitionists has hitherto been very small, while the great body of the two principal political parties in the free States have been strongly opposed to them. The Republican party was determined to set bounds to the extension of slavery, while the Democratic party favored that system, but neither had designs secret or avowed against slavery within the States. They knew that the question could only be legally and rationally dealt with by the States themselves. But both the parties, as present events are so signally demonstrating, were imbued with a passionate attachment to the Constitution — to the established authority of government, by which alone our laws and our liberty are secured. All parties in the free States are now united as one man, inspired by a noble and generous emotion to vindicate the sullied honor of their flag, and to save their country from the abyss of perdition into which it seemed descending. Of the ultimate result we have no intention of speaking. Only the presumptuous will venture to lift the veil and affect to read

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with accuracy coming events, the most momentous perhaps of our times. One result is, however, secured. The Montgomery constitution, with slavery for its corner-stone, is not likely to be accepted, as but lately seemed possible, not only by all the slave States, but even by the border free States; nor to be proclaimed from Washington as the new national law in the name of the United States. Compromises will no longer be offered by peace conventions, in which slavery is to be made national; negroes declared property over all the land, and slavery extended over all territories now possessed or hereafter to be acquired. Nor is the United States Government yet driven from Washington. Events are rapidly unrolling themselves, and it will be proved, in course of time, whether the North will remain united in its inflexible purpose, whether the South is as firmly united, or whether a counter-revolution will be effected in either section, which must necessarily give the victory to its opponents. We know nothing of the schemes or plans of either government. The original design of the Republican party was to put an end to the perpetual policy of slavery extension, and acquisition of foreign territory for that purpose, and at the same time to maintain the Constitution and the integrity of the Republic. This, at the South, seemed an outrage which justified civil war; for events have amply proved, what sagacious statesmen prophesied thirty years ago, that secession is civil war. If all is to end in negotiation and separation, notwithstanding the almost interminable disputes concerning frontiers, the stronghold in the Gulf, and the unshackled navigation of the great rivers throughout their whole length, which, it is probable, will never be abandoned by the North, except as the result of total defeat in the field, it is at any rate certain that both parties will negotiate more equitably with arms in their hands than if the unarmed of either section were to deal with the armed. If it comes to permanent separation, too, it is certain that in the commonwealth which will still glory in the name of the United States, and whose people will, doubtless, re-establish the old Constitution with some important amendments, the word secession will be a sound of woe not to be lightly uttered. It will have been proved to designate, not a peaceful and natural function of political life, but to be only another ex-

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pression for revolution, bloodshed, and all the horrors of civil war. It is probable that a long course of years will be run, and many inconveniences and grievances endured, before any one of the free States secedes from the reconstructed Union.

Pamphlet 2

Joel Parker The Right of Secession. A Review

of the Message

of Jefferson Davis to the Congress of the Confederate

States.

Cambridge, 1861 [In the spring of 1861, Joel Parker, Royall Professor of Law at Harvard College, delivered to his students a lecture, which later circulated in pamphlet form, arguing against the Confederate right of secession. In effect it was a tight, carefully reasoned legal brief, rebutting point by point the constitutional position of Jefferson Davis. Parker ( 1795-1875 ) served as chief justice of the New Hampshire Superior Court, the highest court in the state, before accepting a chair in the Harvard Law School. He was a conservative Republican of Whig antecedents, and as a teacher more thorough than flamboyant. His most distinguished student, Oliver Wendell Holmes, later regarded him as "one of the greatest of American judges." Perhaps it was Parker's utter disregard for popularity that Holmes admired, for above all he was a constitutionalist who hewed his own independent line. He had voted for Frémont in 1856 and denounced the Dred Scott decision, yet at a time when the Fugitive Slave Act was intensely disliked in New England, he defended its constitutionality. In the early years of the Civil War he was a prolific producer of pamphlets on questions of both constitutional and international law growing out of the conflict. Several of these first appeared in the North American Review. In 1862 he flayed a pair of abolitionist clergymen even more vehemently than he had attacked Jefferson Davis, in this instance for their "impudent assumption" that President Lincoln's Emancipation Proclamation was constitutional: "[W]hen a clergyman assumes to know more of Constitutional law than those who have spent their lives in the investigation of its principles, he is apt to exhibit himself as an unmitigated ass; and when he makes a political prostitute of himself, pandering to the lusts of a political party, he is entitled to no greater respect than — other persons who disregard their duties." During Reconstruction Parker held the Radical Republicans in equally low esteem.1] 1

[ [Joel Parker] To the People of Massachusetts [Cambridge?, 1862], 8; cf., Parker, Çonstitutional Law and Unconstitutional Divinity. Letters to Rev. Henry M. Dexter

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" M E S S A G E OF P R E S I D E N T

DAVIS."

S U C H is the title of a document which occupies more than four columns of the National Intelligencer of the 7th of May last. It is signed by Jefferson Davis, and purports to have been addressed to the "Gentlemen of the Congress" of the Confederate States, convened by special summons at Montgomery, in the State of Alabama, on the 29th of April, being the second session of the Congress; and to have been prepared in the execution of the duties of the author as President of the Confederation. The reason for the special convocation of the body to which it is addressed is stated to be the "declaration of war made against this Confederacy by Abraham Lincoln, President of the United States, in his proclamation issued on the 15th day of the present month" (April); and in the paragraph which follows this statement the writer speaks of the occasion as "indeed an extraordinary one," which justifies him "in a brief review of the relations heretofore existing between us and the States which now unite in warfare against us, and in a succinct statement of the events which have resulted in this warfare; to the end that mankind may pass intelligent and impartial judgment on its motives and objects." This document therefore must be regarded as an authoritative exposition of the views entertained by the leaders of the Confederacy upon the subjects thus indicated. We extract that portion immediately following, which speaks of the former relations of the States. During the war waged against Great Britain by her colonies on this continent, a common danger impelled them to close alliance and to the formation of a Confederation, by the terms of which the colonies, styling themselves States, entered "severally into a firm league of friendship with each other for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them or any of them on account of religion, sovereignty, trade, or any other pretence whatever." In order to guard against any misconstruction of their compact, the several States made explicit declaration, in a distinct article, that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and and to Rev. Leonard Bacon, D.D. (Cambridge, 1863). [George Silsbee Hale], Joel Parker . . . ( Cambridge, 1876 ) ; Emory Washburn, Memoir of the Hon. Joel Parker, LL.D. (Cambridge, 1 8 7 6 ) . ]

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right which is not by this Confederation expressly delegated to the United States in Congress assembled." Under this contract of alliance the war of the Revolution was successfully waged, and resulted in the treaty of peace with Great Britain in 1783, by the terms of which the several States were each by name recognized to be independent. The Articles of Confederation contained a clause whereby all alterations were prohibited, unless confirmed by the Legislatures of every State, after being agreed to by the Congress; and in obedience to this provision, under the resolution of Congress of the 21st February, 1787, the several States appointed delegates who attended a Convention "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." It was by the delegates chosen by the several States, under the resolution just quoted, that the Constitution of the United States was framed in 1787, and submitted to the several States for ratification, as shown by the 7th article, which is in these words: — "The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution BETWEEN the States so ratifying the same." I have italicized certain words in the quotations just made, for the purpose of attracting attention to the singular and marked caution with which the States endeavored, in every possible form, to exclude the idea that the separate and independent sovereignty of each State was merged into one common government and nation; and the earnest desire they evinced to impress on the Constitution its true character, — that of a compact BETWEEN independent States. The Constitution of 1787 having, however, omitted the clause already recited from the Articles of Confederation, which provided in explicit terms that each State retained its sovereignty and independence, some alarm was felt in the States, when invited to ratify the Constitution, lest this omission should be construed into an abandonment of their cherished principle, and they refused to be satisfied until amendments were added to the Constitution placing beyond any pretence of doubt the reservation by the States of all their sovereign rights and powers not expressly delegated to the United States by the Constitution. Strange indeed must it appear to the impartial observer, but it is none the less true, that all these carefully worded clauses proved unavailing to prevent the rise and growth in the Northern States of a political school which has persistently claimed that the government thus formed was not a compact between States, but was in effect a National Government, set up above and over the States. An organization, created by the States to secure the blessings of liberty and independence against foreign aggression, has been gradually perverted into a machine for their control in their domestic affairs; the creature

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has been exalted above its creators; the principals have been made subordinate to the agent appointed by themselves.

We copy also the "succinct statement of the events which have resulted in this warfare," — in other words of the aggressions on the part of the Northern States and people, and of the grievances endured by the South, — and add what seems to be stated as the foundation and justification of the remedy for those grievances, all which is in these words: — The people of the Southern States, whose almost exclusive occupation was agriculture, early perceived a tendency in the Northern States to render the common government subservient to their own purposes, by imposing burdens on commerce as a protection to their manufacturing and shipping interests. Long and angry controversy grew out of these attempts, often successful, to benefit one section of the country at the expense of the other; and the danger of disruption arising from this cause was enhanced by the fact that the Northern population was increasing by immigration and other causes in a greater ratio than the population of the South. By degrees, as the Northern States gained preponderance in the National Congress, self-interest taught their people to yield ready assent to any plausible advocacy of their right as a majority to govern the minority without control: they learned to listen with impatience to the suggestions of any constitutional impediment to the exercise of their will; and so utterly have the principles of the Constitution been corrupted in the Northern mind, that in the inaugural address delivered by President Lincoln in March last he asserts, as an axiom which he plainly deems to be undeniable, that the theory of the Constitution requires that in all cases the majority shall govern; and, in another memorable instance, the same Chief Magistrate did not hesitate to liken the relations between a State and the United States to those which exist between a county and the State in which it is situated and by which it is created. This is the lamentable and fundamental error on which rests the policy that has culminated in his declaration of war against these Confederate States. In addition to the long-continued and deep-seated resentment felt by the Southern States at the persistent abuse of the powers they had delegated to the Congress, for the purpose of enriching the manufacturing and shipping classes of the North at the expense of the South, there has existed for nearly half a century another subject of discord, involving interests of such transcendent magnitude as at all times to create the apprehension in the minds of many devoted lovers of the Union that its permanence was impossible. When the several States delegated certain powers to the United States Congress, a large portion of the laboring population consisted of African slaves imported into the colonies by the mother country. In twelve out of thirteen States negro slavery existed, and the right of property in slaves was protected by law. This property was recognized in the Constitution, and provision was made against its loss by the escape of the slave. The increase in the number of

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slaves by further importation from Africa was also secured by a clause forbidding Congress to prohibit the slave-trade anterior to a certain date; and in no clause can there be found any delegation of power to the Congress authorizing it in any manner to legislate to the prejudice, detriment, or discouragement of the owners of that species of property, or excluding it from the protection of the government. The climate and soil of the Northern States soon proved unpropitious to the continuance of slave labor, whilst the converse was the case at the South. Under the unrestricted free intercourse between the two sections the Northern States consulted their own interest by selling their slaves to the South and prohibiting slavery within their limits. The South were willing purchasers of a property suitable to their wants, and paid the price of the acquisition without harboring a suspicion that their quiet possession was to be disturbed by those who were inhibited, not only by want of constitutional authority, but by good faith as vendors, from disquieting a title emanating from themselves. As soon, however, as the Northern States that prohibited African slavery within their limits had reached a number sufficient to give their representation a controlling voice in the Congress, a persistent and organized system of hostile measures against the rights of the owners of slaves in the Southern States was inaugurated, and gradually extended. A continuous series of measures was devised and prosecuted for the purpose of rendering insecure the tenure of property in slaves: fanatical organizations, supplied with money by voluntary subscriptions, were assiduously engaged in exciting amongst the slaves a spirit of discontent and revolt; means were furnished for their escape from their owners, and agents secretly employed to entice them to abscond; the constitutional provision for their rendition to their owners was first evaded, then openly denounced as a violation of conscientious obligation and religious duty; men were taught that it was a merit to elude, disobey, and violently oppose the execution of the laws enacted to secure the performance of the promise contained in the constitutional compact; owners of slaves were mobbed, and even murdered in open day, solely for applying to a magistrate for the arrest of a fugitive slave; the dogmas of these voluntary organizations soon obtained control of the Legislatures of many of the Northern States, and laws were passed providing for the punishment by ruinous fines and long-continued imprisonment in jails and penitentiaries of citizens of the Southern States who should dare to ask aid of the officers of the law for the recovery of their property. Emboldened by success, the theatre of agitation and aggression against the clearly expressed constitutional rights of the Southern States was transferred to the Congress; Senators and Representatives were sent to the common councils of the nation, whose chief title to this distinction consisted in the display of a spirit of ultra fanaticism, and whose business was, not "to promote the general welfare or insure domestic tranquillity," but to awaken the bitterest hatred against the citizens of sister States by violent denunciation of their institutions; the transaction of public affairs was impeded by repeated efforts to usurp powers not delegated by the Constitution, for the purpose of impairing the security of property in slaves, and reducing those States which

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held slaves to a condition of inferiority. Finally, a great party was organized for the purpose of obtaining the administration of the government, with the avowed object of using its power for the total exclusion of the Slave States from all participation in the benefits of the public domain, acquired by all the States in common, whether by conquest or purchase; of surrounding them entirely by States in which slavery should be prohibited; of thus rendering the property in slaves so insecure as to be comparatively worthless, and thereby annihilating in effect property worth thousands of millions of dollars. This party, thus organized, succeeded in the month of November last in the election of its candidate for the Presidency of the United States. In the mean time, under the mild and genial climate of the Southern States, and the increasing care and attention for the well-being and comfort of the laboring class, dictated alike by interest and humanity, the African slaves had augmented in number from about 600,000, at the date of the adoption of the constitutional compact, to upwards of 4,000,000. In moral and social condition they had been elevated from brutal savages into docile, intelligent, and civilized agricultural laborers, and supplied not only with bodily comforts, but with careful religious instruction. Under the supervision of a superior race, their labor had been so directed as not only to allow a gradual and marked amelioration of their own condition, but to convert hundreds of thousands of square miles of the wilderness into cultivated lands, covered with a prosperous people; towns and cities had sprung into existence, and had rapidly increased in wealth and population under the social system of the South; the white population of the Southern slaveholding States had augmented from 1,250,000 at the date of the adoption of the Constitution, to more than 8,500,000 in i860; and the productions of the South in cotton, rice, sugar, and tobacco, for the full development and continuance of which the labor of African slaves was and is indispensable, had swollen to an amount which formed nearly three fourths of the exports of the whole United States, and had become absolutely necessary to the wants of civilized man. With interests of such overwhelming magnitude imperilled, the people of the Southern States were driven by the conduct of the North to the adoption of some course of action to avert the danger with which they were openly menaced. With this view, the Legislatures of the several States invited the people to select delegates to Conventions to be held for the purpose of determining for themselves what measures were best adapted to meet so alarming a crisis in their history. Here it may be proper to observe, that from a period as early as 1798 there had existed in all the States of the Union a party, almost uninterruptedly in the majority, based upon the creed that each State was, in the last resort, the sole judge as well of its wrongs as of the mode and measure of redress. Indeed, it is obvious that under the law of nations this principle is an axiom as applied to the relations of independent sovereign states, such as those which had united themselves under the constitutional compact. The Democratic party of the United States repeated in its successful canvass in 1856 the declaration made in numerous previous political contests, that it would "faithfully abide by and

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uphold the principles laid down in the Kentucky and Virginia Resolutions of 1798, and in the report of Mr. Madison to the Virginia Legislature in 1799; and that it adopts those principles as constituting one of the main foundations of its political creed." The principles thus emphatically announced embrace that to which I have already adverted, the right of each State to judge of and redress the wrongs of which it complains. These principles were maintained by overwhelming majorities of the people of all the States of the Union at different elections, especially in the elections of Mr. Jefferson in 1805, Mr. Madison in 1809, and Mr. Pierce in 1852. In the exercise of a right so ancient, so well established, and so necessary for self-preservation, the people of the Confederate States in their Conventions determined that the wrongs which they had suffered and the evils with which they were menaced required that they should revoke the delegation of powers to the Federal Government which they had ratified in their several Conventions. They consequently passed ordinances resuming all their rights as sovereign and independent States, and dissolved their connection with the other States of the Union.

Our especial purpose at this time is, not to inquire into the truth of the allegation that the President of the United States had made a declaration of war in his proclamation, nor to consider how far the grievances alleged have any substantial foundation regarded as accusations against the government of the Union, nor to show how the freedom and material prosperity of the people who make the complaint have been protected and secured by the government which they now assail. That we may not, however, be supposed to concede by silence that President Lincoln's proclamation can in any just sense be regarded as a declaration of war, or a commencement of hostile measures, we refer the reader to the proclamation itself, and to certain significant words of one L. P. Walker, claiming to be Secretary of War of the Confederate States, uttered at Montgomery on the evening of the day on which the bombardment of Fort Sumter commenced, which was three days before President Lincoln's proclamation was issued. They may be found in another column of the number of the National Intelligencer which contains the "Message." Serenaded in celebration of that joyous occasion, and declining to make a speech when thus called out, the War Secretary, in the language of the telegraphic despatch, in a f e w words of electrical eloquence told the news from Fort Sumter, declaring, in conclusion, that before many hours the flag of the Confederacy would

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float over that fortress. "No man," he said, "could tell where THE WAR THIS DAY COMMENCED would end, but he would prophesy that the flag which now flaunts the breeze here would float over the dome of the old Capitol at Washington before the first of May. Let them try Southern chivalry and test the extent of Southern resources, and it might float eventually over Faneuil Hall itself."

If any one is curious to inquire into the truth and justice of the grievances alleged as a justification for the attempted secession, we must refer him, for the present, to the contemporary history, as found in the various publications of the day. There is not before us at this time any question how far these alleged grievances, if true, might justify revolution. The right of revolution is now generally admitted by all who sustain the political dogma, that the people have a right to govern themselves. But while revolution seems thus to be well admitted as a right, the persons by whom, and the limits within which, the right may be exercised, have not thus far been very explicitly or accurately designated and defined. The generalizations which usually accompany the admission of the right, seem to require for its rightful exercise causes of the gravest character, without any distinct enumeration of those which should be regarded as sufficient; they assert its existence in the people, without specifying what classes of the whole population are entitled to that character, or what portion of the persons known as the people may exercise the right; and they insist upon a right of reform, without indicating very precisely what should be the legitimate objects of the reformation. — It must be admitted, that in all these particulars accuracy of specification and limitation is difficult, not to say impossible; and yet to revolution regarded as a right, there must be some limit, not very sharply defined, perhaps, beyond which the right does not extend. The right of revolution does not exist in all cases where the power of revolution is found. We may remark, before proceeding to our main purpose, that if the right of revolution may be exercised because portions of the community maintain the opinion, that the clause of the Declaration of Independence which asserts that all men are created equal and endowed by their Creator with certain unalienable rights, embraces all human beings of whatever color or race, and denounce in round terms the dogmas of those who maintain that human slavery is a suitable foundation upon which to erect a republican government, some of them even contending manfully that slaveholding is a sin;

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or because strenuous efforts have been made by individuals to prevent the extension of slavery into the Territories, where it has no right to enter; or because a President has been elected who is not a slaveholder, nor the tool of those who sustain that patriarchal relation; — then the time may have arrived when the existing republic of the United States ought to be subverted by those at the South who are thereby aggrieved. — If a small minority of the whole people in a government, being the active agitators in a certain section, may lawfully exercise the right of revolution, through the instrumentality of misrepresentation and terrorism combined, then the active leaders of the attempted secession may come within the denomination of "the people," in whom the right is admitted to exist. — If the right may lawfully be exercised for the purpose of taking from the great body of the people who possess it the power of regulating their own affairs, and of placing that power in the hands of a few, to be held by them for the purposes of their own ambition, then the attempted disruption of the Union may have a legitimate political purpose. — And if, through revolution, a government may with propriety be founded, having human slavery for its corner-stone, then the intelligent and impartial judgment of the civilized world may sanction the proceedings which have resulted in the formation of this Confederation of the Southern States; — not otherwise. But Mr. Jefferson Davis and his compeers of the Confederate Congress do not base their action upon this right of revolution, which asserts itself in antagonism to the existing government, and seeks its overthrow, or its subversion to the extent covered by the antagonism, against the will and the right of the government to oppose it. If they did, they would stand at present, upon their own admission, as rebels against the government of the United States; for it must be borne in mind, that this right of revolution is such an imperfect right that its very character of revolution depends upon the ultimate success of those who attempt to exercise it. It is strictly a personal right, "the right of the people to alter or abolish the government." It does not exist as the right of a State, or of any political organization, although such organization may be used for the more effectual exercise of it. In the inception of any effort to exert this right, all the action taken under it is insurrection and treason; — so known to the law; and so treated in fact, at the

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pleasure of the government assailed, until the insurrection has established itself, by the assertion of the right and the manifestation of a sufficient power to sustain it. The Confederates do not set up, or attempt, a justification which would place them in the position of traitors on their own admission. On the contrary, they claim, under shelter of State authority, to withdraw from the Union by a State action, not having the character of an antagonism which the government may rightfully oppose and subdue, but the character of a peaceful withdrawal, which, on their political theory, the government ought to allow, because it is a political right, and it would seem, according to their notions, a perfect right. The right of secession is asserted as a State right, consistent with the Constitution, and founded upon it, or upon the history preceding it, and the circumstances attending its formation and adoption; — a right to be exercised only through State action, and to be made effectual by a peaceful declaration of the fact of secession, which of itself accomplishes the separation of the State from the Union; any forcible opposition to it on the part of the United States being usurpation and oppression. Its theory, as stated in the document before us, and more at large in the speeches and writings of its paternal ancestor, is, that the Constitution of the United States is a compact, or agreement, entered into by the several States, as sovereign communities, by which the States created a government with certain limited powers, all powers not delegated to it, nor prohibited to the States, being reserved to the States respectively, or to the people; — that, the States being parties to the compact, each may judge for itself whether its obligations have been fulfilled, and the means and measure of redress required for any infraction of it, because there is no common arbiter or judge to settle disputes between the parties to it on such subjects; — and that if, in the judgment of any State the proper remedy for a violation of the compact is secession from the Union, such State may rightfully sever the connection by a declaratory act for that purpose, and that thereby the fact of secession is accomplished without revolution. Acting upon this assumption, the mode adopted for severing the connection, by the conventions in the several States which have attempted to secede, has been a formal repeal of the acts ratifying the Constitution of 1788, and of acts by which the State became a member of the

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Union, and by declaring the union subsisting between the seceding State and the United States dissolved. We propose at this time to discuss the soundness of these positions. In determining whether such a right exists, we naturally turn in the first instance to the Constitution itself. But it is clear that this instrument contains no provision to that effect, in terms, nor any one which suggests such a result by any direct implication. It purports to be an organic and supreme law, limited as to its objects, and of course in its powers; and it appears to be framed on the model of the State constitutions, following their general principles so far as the objects to be attained and the limited powers granted will permit. The government organized under it is formed through the instrumentality of the Constitution itself, as a fundamental law enacted by "We, the people of the United States"; and not one formed by the States, or one which when formed represents the States; although from the previous existence of the States, as sovereign communities, except so far as they were bound by the Articles of Confederation, the Constitution could not be adopted without the assent and sanction of the several States; — for which reason, and because the States were still to exist, the ratifications were by "the people" of each State. In no instance was it supposed that the existing State government could make the necessary ratification as a State act. It provides for the organization of Legislative, Executive, and Judicial departments, and the powers of these departments are to be exercised like similar powers under the State constitutions, and in a manner to control all State action within their proper sphere. The powers of the government organized under it usually act directly upon the people of the whole country, as the powers of the State government act upon all the people of the State; sometimes with reference to geographical or State lines, as the powers of the State government act with regard to county, town, or city limits. In general, none of these departments are indebted to State authority in their organization. They do not derive their powers from the States, nor represent States, nor act through any State agency, or as trustees of any powers for State purposes, or of powers dependent for their existence upon any State organization. The excepted cases — if the election of Senators by State Legislatures, requisitions upon States for their quota of militia to suppress insurrection, and the rendition of fugitives from justice, by the action of the State ex-

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ecutive, may be supposed to be exceptions — are not founded upon any idea that State authority is a controlling force in the government of the United States, but exist for special reasons applicable to the particular instances; — that of the election of Senators being designed to guard against too great a preponderance of the larger States in the national councils; that in relation to the militia being a matter of convenience, because the militia is officered, and mainly organized, through the action of the several States; and that of the rendition of fugitives from justice arising from the fact that it is a matter between the State demanding and that rendering, rather than one which concerns the general welfare. State lines furnish convenient divisions for the purposes of the government; and in many instances, doubtless, State pride and State interests have had a controlling influence, shaping the provisions of the Constitution and laws so that State prosperity would be subserved; but this is merely incidental, through the action of individuals. It is none the less true, that the States have no control over any of the departments of the general government. They do not direct their action, in the first instance, nor is there, by the Constitution, any appeal to State judgment, or State sanction, through which errors are corrected, or the action of the departments is affirmed or reversed. In the matter of the election of Senators, before adverted to, reliance is placed upon State action, and if no such action was had, for a sufficient length of time, a Senate could not be organized. But so it would be in a State, if no State senators were elected. That there is nothing peculiar in the government of the United States, in this regard, is evident from the fact, that if one or a dozen of the States should refuse or neglect to elect Senators, the Senate would be organized legally, notwithstanding the omission. At the same time that there is nothing to show that the States, as such, have any control over the United States, or the government established under the Constitution, that instrument is full of provisions by which the States are prohibited from the exercise of powers which they would otherwise possess, and their authority as States is made subject and subordinate to the authority of the United States. In many important particulars, to the extent to which powers are granted to the government established by the Constitution, to the same extent the sovereignty of the States is expressly taken away; the powers granted being exclusive in the United States. In other

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particulars this is so by a necessary implication, because a power being expressly granted to the United States, the exercise of a similar power by a State would be inconsistent with the grant. The Constitution declares that itself, the laws of the United States made in pursuance of it, and treaties made under its authority, shall be the supreme law of the land, by which the judges of every State shall be bound, anything in the laws or constitution of the State to the contrary notwithstanding. It is a perversion of terms to call the "supreme law of the land" a compact between the States, which any State may rescind at pleasure. It is not itself an agreement, but is the result of an agreement. And in the absence of an express declaration, or reservation, it is an entire subversion of all legal principles to maintain that the subordinate may at pleasure set itself free from the restrictions imposed upon it by the fundamental law constituting the superior, even if the subordinate have in other particulars an uncontrolled authority. The judges of each State being expressly bound by the Constitution and laws of the United States, anything in the constitution or laws of the State to the contrary, how can a State law (or ordinance, which is but another name for a law ) relieve them from the obligation? And if they are bound, the State and the people are bound also. The judges are expressly named, the more surely to prevent a conflict of jurisdiction and decision. The clause of the Constitution providing for amendments adds another to the arguments which show it to have the character of an organic law, and not of a compact. Whether regarded as the one or the other, it is clear that it could not become obligatory upon a State, or the people of a State, until adopted by them. The people of one State could not ratify and adopt it for the people of another State. But, being adopted by all, it contains a clause binding upon all, providing that "the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to the Constitution, or, on application of the legislatures of two thirds öf thé several States, shall call a convention for proposing amendments, which, in either case, shall be valid to; all intents and purposes, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress" Now, considered as an organic law, the Constitution may be

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altered and amended in any mode which may be agreed upon and prescribed by the instrument itself; and this is a mode by which, through the action of certain political bodies, and certain legislative or popular majorities of a required number, the whole people are represented in the adoption of amendments, which become parts of the organic law. This mode, rather than a direct vote of the whole people, was doubtless agreed upon in order to make reasonable assurance that no amendment should be adopted affecting the rights and interests of the States, except by such a concurrence of State action as would fairly guard State interests, at the same time that there was a suitable representation of the whole people. It may be regarded as combining a representation of the States and of the people. It is an exemplification of the democratic dogma that the majority represent and express the will of the people, — the mode of expression provided in this case being supposed to be that best adapted to the particular purpose. But if the Constitution is a compact between the States, any amendment which becomes a part of the Constitution is also a compact between the States, and the question arises, How is it that three fourths of the States, voting in favor of an amendment, are to make a compact with the other fourth, voting at the same time against it, and thus refusing to enter into the compact? How is it that the States voting to adopt, represent the States refusing to adopt, so that, by the vote of adoption, they make a compact between themselves and the others, against the will of the others expressed at the same time. Those voting to adopt act in their own behalf, thereby being one party to the bargain, and thus far it is well; but, on the compact theory, they must at the same time represent those who vote against the adoption, and thus make them another party to the bargain; when the others at the same time represent themselves, and refuse to make the bargain. Or if we state the compact theory with somewhat more of precision, each State is a party to the compact, agreeing with all the others, and one agrees with all the others notwithstanding she and several of the others refuse to agree. Thus, South Carolina, for instance, votes against a proposed amendment, and thereby refuses to enter into the new compact, but does still become a party to that compact, and agrees with the other States to adopt it, being represented by the others, several of them also voting

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against it, and at the same time not only making the contract for themselves, but aiding in making it for South Carolina also. Will the advocate of the compact theory say that the provision relative to amendments, in the Constitution as first adopted, constitutes the States agents of one another, so that three fourths of the whole number may thus make an agreement for all, against the will of their principals, acting at the same time and dissenting? If this is so, we must add a new chapter to the law of Agency. But without extending the argument, two or three illustrations may serve to exemplify the utter absurdity of a construction of the Constitution which should sanction the alleged right of secession. The judicial department is rightfully divided into circuits and districts, embracing several States in a circuit, and mainly limited by State lines; not because the States have any control of the courts, but because State lines furnish convenient limits for such circuits and districts, except when there is a necessity for districting a State. Suits are instituted from time to time in these courts, questions are tried, verdicts are rendered, judgments entered, and cases are carried from these courts, and also from the State courts in certain cases, to the Supreme Court of the United States, sitting at Washington for the correction of errors. Now suppose a State is allowed to secede at its pleasure, what is the eifect? If it may do so rightfully, then the judicial department of the United States holds all its powers, and even its existence, practically, within the limits of any State, at the pleasure of that State; for all its action is arrested at the point of time when the State pleases to secede. The witness on the stand is stopped in the midst of his testimony, on the passage of the act of secession; the juror, who has been sworn to try the case, goes his way without rendering a verdict; appeals are summarily and effectually dismissed, and writs of error quashed, by a nullification of the jurisdiction of the Supreme Court; the property seized by the marshal upon execution drops from his grasp; he and the district judge are removed from office; the State makes a general jail delivery of United States prisoners within her limits; and the pirate and murderer, under sentence of death, rejoice in a secession pardon. There is no escape from these conclusions. The power to make treaties is, by the Constitution, vested in the President, with the advice and consent of the Senate, who may law-

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fully, in virtue of that power, enter into stipulations with foreign nations, which can be executed, according to their terms, only within the limits of a particular State. Suppose a treaty with Great Britain, containing a stipulation by which, in consideration of a concession by her of a right to American citizens to navigate the Thames, her subjects should have a similar right to navigate the Hudson, for a term of years; with various other stipulations relative to matters of high political and commercial interest having a connection with this stipulation, or entered into in consequence of that agreement. It is an entire compact consisting of several parts. That treaty exists at the pleasure of the State of New York, which, although she cannot by any direct act close the navigable waters within her limits, may by an act of secession deprive British subjects of their rights under the treaty, and thus effectually break it, and by the infraction give Great Britain just cause for war, — not against her, for she did not make the compact, and merely exercises her lawful right, — but against the United States. If such may be the result, all treaties ought to contain a provision for a peaceable termination of their provisions on the secession of any State. Not to multiply instances of the superlative folly of such an interpretation of the Constitution, let us make one more supposition. The debt which must be contracted in suppressing the present insurrection is likely to be large; Mississippi would be willing to repudiate her share, and Mr. Jefferson Davis would doubtless justify her in so doing, although she and he have had a large agency in causing it to be contracted. Suppose, instead of such a catastrophe, that all the States except New Hampshire, Vermont, Rhode Island, New Jersey, and Delaware should secede, and thus relieve their people from the obligation of the debt. The States named, remaining loyal and true, and in such case constituting the United States, would have rather a large load to carry, considering their resources and means of payment; but the burden must, by legitimate consequence, fall upon their shoulders, as they could not tax the people of the seceding States, nor very conveniently concentrate their forces so as to compel a contribution. We should ask pardon of the other loyal States for stating this supposition, were it made otherwise than as an effective illustration. These considerations may be sufficient to show that the Constitution itself, considering it as a fundamental law, can contain no

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principle of action, nor recognize any principle, or action, by which its full operation, over all parts of the States embraced within the government, may be limited or subverted by State authority. Regarding the Constitution as a law, probably no one can be found, at the present day, to contend for the right of secession. Let us now consider the argument upon the supposition that the Constitution has the character of a compact between the States. Our first remark is, that, assuming it to be a compact between the States, with a right of secession attached, the same absurd consequences will follow which have already been suggested. A compact constituting a national judiciary, any circuit or district of which may be cut off in the manner and with the effect which is shown to attend the secession of a State, or one authorizing the formation of a treaty, binding upon all the parties, but which any one of the States can break at pleasure, leaving the responsibility for the breach upon the others, would be a most absurd compact. It is not therefore to be presumed that such a compact exists, but its existence must be proved by indubitable evidence; and we turn to the history preceding and attending the formation of the Constitution, to ascertain whether the States have any sovereign right to break the contract by which they associated themselves together for the purpose of a general government. The political relations of the people of this country have had a twofold character from the commencement of the Revolution, and even from the early settlement of the Colonies, and there has been no time when any State has been at liberty to act with perfect freedom as a sovereign State. The Colonies were in most instances separate, and independent of each other, managing their local affairs, but all under the general jurisdiction and government of the mother country. They confederated together for the purposes of the common defence, at first as a council, without articles of agreement, to take into consideration their actual condition, and the differences subsisting between them and Great Britain. The Declaration of Independence shows the union which then existed between them as "one people," but still exhibits to some extent this twofold character. It was made, not by separate Colonies, or States, or governments, but by all united, and for all united. This is shown in the introduction, and in the recital of grievances; and the specific declaration with which it closes is that of an entire people. It com-

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menees, "When it becomes necessary for one people to dissolve the political bands which have connected them with another people." The grievances alleged are the common grievances of all. The allegations against the king of Great Britain are, among other things, that "he has combined with others to subject us to a jurisdiction foreign to our constitutions and unacknowledged by our laws." The recital of remonstrances is of the same character. "We have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury." This form of phraseology, which is found throughout, was not accidental. The declaration was "the unanimous declaration of the thirteen United States," or rather "of the good people of these Colonies"; but it was declared, not that the "United Colonies" are a free and independent nation, but that they are free and independent States, thus recognizing their separate existence, which has never been questioned. They were States, however, which were united, as if one, for the purposes for which Congress was assembled, but with imperfect authority to effect the purposes for which they were thus united. This lack of authority led to the Articles of Confederation. They were reported in Congress, July 12, 1776, agreed to by the delegates, and proposed for ratification, November 15, 1777; ratified by the delegates of several States, authorized for that purpose, July 9, 1778, and by others from time to time, the last ratification being that of Maryland, March 1, 1781. These articles, without doubt, formed a compact. The third article expressly declares that "the said States hereby enter into a firm league," "binding themselves to assist each other." There was no regular legislative, executive, or judicial department, but to some extent the articles conferred upon the Congress assembled under them powers of a national character; such as the power of determining on peace and war, with certain exceptions; of entering into treaties, granting letters of marque and reprisal, appointing courts for the trial of piracies and felonies committed on the high seas, and other powers, comprising legislative, executive, and judicial functions. They contained divers limitations upon the powers which each of the States would otherwise have possessed, so that the action of the States should not interfere with that of Congress; and they imposed certain duties upon the States. As these Articles remained in full force up to the time of the adoption

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of the Constitution, it is in no sense true that the States at and immediately before that adoption were in all respects sovereign States. The second Article, in these words, "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled," admits that to that extent they had parted with their sovereignty. By the thirteenth article, it was agreed that "every State shall abide by the determination of the United States in Congress assembled, on all questions which by this Confederation are submitted to them." Now, with this admitted character of a compact, it is quite clear that no State, after the adoption of the Articles, could secede at pleasure from the Confederation. So far from it, no one could retire without the assent of all the rest. Waiving for the present the consideration of the particular provisions of the Articles, which show this conclusively, and examining the case as it is presented by the character of the Articles as above set forth, it is perfectly apparent that there was no right of secession. It is the nature of a contract to be binding upon the parties according to its terms, and the scope and operation it was designed to have. This compact prescribed duties to the States, and gave powers to the Congress. The purposes which were to be effected by it were of indefinite continuance. The duties of the States were without limitation of time. The powers of Congress were of the same character. Each party to the compact had duties to perform, and could not withdraw itself until those duties were discharged. Such are the legal rules in relation to contracts generally. And if this is true of the Articles of Confederation, it must be at least equally true of the Constitution itself, regarding it as a compact substituted for the Articles. But it is alleged that this compact has been broken by some of the parties to it in divers particulars, principally relating to slavery, and that the other parties are therefore no longer bound by it, but may withdraw from further performance on their part. If we were to admit the breach as alleged, the conclusion does not follow. There are cases in which, on the failure or refusal of one party to a contract to perform his part of it, the other party may treat the contract as rescinded. But this case is not within that rule; for it is equally well settled, as a general rule, that one party cannot treat a contract

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as rescinded unless all the parties can be placed in the condition in which they were before they entered into it, and that if there has been a partial performance, from which one party has derived a benefit, he cannot retain what he has received, and treat the contract as rescinded by reason of any failure or refusal of another party to perform the residue. There are, therefore, at least two valid reasons why the supposed breaches of the compact give no right to any State to secede. It is clear the parties could not be placed in statu quo; and certainly the seceding States, instead of placing the United States as far as they might in that position, did, when they broke the compact on their part, not only retain all the benefits they had received, but, by the seizure of forts, arsenals, mint, nävy-yard, and the other common property, they endeavored to appropriate to their own use all the property which, in consequence of the compact, the United States had placed within their limits, but to which they had no title whatever. There is no principle of law by which one party to a contract is entitled to grab all the property which the contract has been the means of placing within his reach, and at the same time to say that, on account of some partial failure of performance on the other side, he rescinds the contract, and withdraws from its obligations. There is still another reason why, on the compact theory, there has never been any right of secession. That theory, as we have seen, is, that the Constitution is a compact to which "each State acceded as a State, and is an integral party, its co-States forming as to itself the other party." The Kentucky Resolutions distinctly so state it. Now South Carolina herself will not for a moment allege that all the co-States have broken the compact. She makes no such accusation against her dear sisters Georgia, Florida, and Alabama. She does not even aver that Mississippi broke the compact when she attempted to impair the obligation of her own bonds, in contravention of an express provision of the Constitution prohibting such a procedure. She alleges that Congress has heretofore passed unconstitutional tariff laws, and that Massachusetts and Wisconsin and some other States have passed laws in contravention of the clause of the compact in relation to fugitive slaves, which are void. But if the compact is by each State, as one party, with all the co-States as the other party, neither Congress, nor Massachusetts, nor Wisconsin, nor any dozen of the other States constitutes the other party to the

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compact; and although they may have severally done those things which they ought not to have done, and left undone those things which they severally ought to have done, the compact is not broken. "The other party" did not agree that they should do no unlawful acts. On this theory, then, what right has South Carolina, by a disruption of the Union, to injure New Jersey and Delaware, Indiana and Missouri, California and Oregon, against whom she charges no grievance, because she does not approve of the acts of Maine, Michigan, and Massachusetts? The former States cannot control the acts of the latter, nor those of Congress, and are not responsible for them. And so "the other party" with whom South Carolina made her contract has not been guilty of the alleged breach of contract, and has the right to hold her to her bargain. This is a legitimate conclusion from the construction of the compact, as set forth by the learned doctors who study constitutional law with the Kentucky Resolutions for their text-book, and who attempt to justify their acts of insurrection and treason, in levying war upon the United States, on the ground that their States (through their instrumentality it might be added) have previously passed acts of secession. The statement serves to show that the theory of secession sits in judgment upon itself, and is its own executioner. There is no reasonable escape from these results, if the ordinary rules which govern the obligation of contracts are applicable to the case. It seems to be supposed, however, that there are different principles or rules in relation to compacts between States from those which govern contracts between persons, because there is no tribunal to determine controversies between the former; and that for this reason each State is the sole judge of its wrongs, and of the mode and means of redress. The Kentucky and Virginia Resolutions of 1798 are relied upon by Mr. Jefferson Davis to sustain this proposition. Those resolutions, it is well understood, had their origin in the alien and sedition laws passed by Congress in 1798. They relate entirely to unconstitutional acts of Congress, and not to those of States or individuals; and no small part of their object was to assert and maintain a strict construction of the Constitution, and to deny the authority of the Judicial and other departments of the United States to determine conclusively the extent of their powers under it. They endeavor to maintain, in general terms, a right in the States to judge

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a n d d e t e r m i n e r e s p e c t i n g the extent of the p o w e r s of the general g o v e r n m e n t u n d e r t h e Constitution, a n d they d e c l a r e the acts m e n t i o n e d unconstitutional. B u t it is q u i t e clear that those w h o a d o p t e d t h e m d i d not s u p p o s e that these resolutions h a d a n y effect to nullify those laws within the r e s p e c t i v e S t a t e s a d o p t i n g the resolutions. T h e y c a l l e d f o r the co-operation of the other S t a t e s ; b u t it is b y no m e a n s certain that it w a s s u p p o s e d that similar declarations of unconstitutionality, e v e n b y all the S t a t e s , w o u l d h a v e any effect, e x c e p t as t h e y m i g h t o p e r a t e u p o n C o n g r e s s to i n d u c e a r e p e a l of the obnoxious l a w s , or p e r h a p s u p o n the j u d g e s , w h e n e v e r the courts s h o u l d b e r e q u i r e d to p r o n o u n c e a decision. T h e closing p a r t of the last of the K e n t u c k y Resolutions s h o w s clearly that it w a s not s u p p o s e d that the declarations of that S t a t e h a d h a d any e f f e c t to arrest the o p e r a t i o n of the acts. It is in these w o r d s : — That this Commonwealth does, therefore, call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes hereinbefore specified, plainly declaring whether those acts are or are not authorized by the Federal compact. And it doubts not that their sense will be so announced, as to prove their attachment unaltered to limited government, whether general or particular, and that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution, as to amount to an undisguised declaration that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these States of all powers whatsoever: That they will view this as seizing the rights of the States, and consolidating them in the hands of the general government with a power assumed to bind the States, not merely in cases made federal, but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress. T h e s e v e n t h of the Virginia Resolutions, w h i c h calls for a similar co-operation, is as f o l l o w s : — That the good people of this Commonwealth having ever felt, and continuing to feel, the most sincere affection to their brethren of the other States, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual

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friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measure will be taken by each for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people. The resolutions were transmitted to the other States, and by several of them the principles asserted were as emphatically denied. As they are usually referred to by the advocates of secession as an authority sustaining their positions, w e copy also the general declarations which are relied on for that purpose, being the first of the Kentucky and the third of the Virginia Resolutions. The following is the first of the Resolutions of Kentucky, passed Nov. 10, 1798: — Resolved, That the several States composing the United States of America are not united on the principle of unlimited submission to their general government, but that by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own selfgovernment; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming as to itself the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. W e now quote the third of the Virginia Resolutions, passed in the House of Delegates, December 2 1 , 1798, yeas 100, nays 63, and subsequently in the Senate, 1 4 to 3 : — That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.

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The first remark which occurs in relation to both of these resolutions, in their connection with this subject, is, that they do not suggest that the election of a President from one section rather than another, or of one who entertains opinions in which certain sections do not concur; or any anticipation of measures which may or may not be adopted; or that any act of a State, especially any such act which may come under the cognizance of the judicial tribunals and be declared void, — furnishes a case in which a State may "interpose for arresting the progress of the evil." In the next place, they assert no right of secession as a State remedy for the exercise by Congress of powers not granted by the compact, nor for any other grievance. If they intend to insist on a right of revolution as a measure of redress, they may be in accordance with received principles. If they mean anything else, the specification of it is not apparent. Mr. Madison, who must have known something of their meaning, denied that they sanctioned nullification, and they give as little support to secession. But, further, if they had contained an explicit declaration of a right of secession, this would prove nothing. The resolutions and platforms of political parties, in times of party excitement, whether in or out of the halls of legislation, do not furnish any authentic expositions of the principles of constitutional law. While there is nothing in the Constitution, even supposing it to be a compact, which can sustain the position that each State may judge respecting infractions of it, and may withdraw from its obligations when she pleases to consider herself aggrieved, there seems to be nothing in the principles of public law to give countenance to such a right. Compacts between States are, in principle, as binding as those between persons. There is no court to interpret and enforce them, and each party may therefore insist upon its own construction. If they do not agree, however, the result is not that the compact falls, and its obligations cease, nor that either party may declare it no longer in force, or secede from it on an allegation of infraction by the other, that other being bound to submit to this judgment and determination; but each party has the right to insist on the performance of the agreement, and the mode of enforcing or of obtaining satisfaction for any breach of it is War. We are not aware that a right of peaceable withdrawal from a treaty is recog-

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nized anywhere, unless the terms of the treaty, or the circumstances, show such to have been the intention of the parties to it; or unless an infraction of it justifying such a course is admitted. One party has the power of interpreting for itself, and may perform or not perform. But the other party has just the same right of interpretation, and may insist upon a strict fulfilment of the stipulations, and punish non-performance in the only mode which the nature of the case admits. The right to punish non-performance shows that there is no right to refuse further compliance. For these reasons, among others, some treaties contain a clause providing that the treaty, or perhaps certain provisions of it, may be terminated on notice for that purpose. If, then, the Constitution were a compact to which each of the States is a party, being the sole judge of its wrongs and of the modes of redress, so that one State, judging that it was injured, should determine to secede as a measure of redress; each and every of the other States would have an equal right to judge and determine that the seceding State was not injured by the alleged grievance, but that they were severally and jointly aggrieved by the attempted secession and refusal further to comply with the obligations of the compact, and that the proper mode and means of redress for that injury was war, jointly and severally waged against the seceding party. This seems, practically, to be the state of things at the present time. Some of the parties determine that they will attempt to secede. They repeal their ratifications (which, by the way, are not subject to repeal); appropriate to their own use so much of the common property as is within their borders; fire upon an unarmed vessel carrying supplies to one of the forts belonging to the general government; reduce the fort by a bombardment sustained by seven thousand men, more or less, against some seventy in the occupation of it; — and then they say, "All we want is to be let alone." At the same time they are investing another fort, and threatening destruction to it and its defenders if it is not surrendered. The other parties to the compact determine that they are aggrieved by these proceedings, and will resist the attempt; and they also resort to gunpowder, shot, and shells, on their part, as stringent legal and equitable powers, whereby to regain possession, and to compel restitution and specific performance of the compact. Presi-

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dent Lincoln thereupon issues his proclamation, calling for militia to execute the laws and suppress the insurrection; and this, according to the Message before us, constitutes a declaration of war. Furthermore, viewed as a compact or treaty between States, it is what is termed a "transitory convention," and cannot be revoked, rescinded, or annulled, repudiated or seceded from, by any State, on account of its nature. "General compacts between nations," says Mr. Wheaton, "may be divided into what are called transitory conventions, and treaties properly so termed. The first are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may, in some cases, be suspended during war, they revive on the return of peace, without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favor of one nation within the territory of another." — Wheaton s Elements of International Law, 6th ed., p. 332, Sect. 9.

On the theory of compact, the Constitution contains an agreement of each State with the other States, that the government organized under it, for the benefit of all the States, may exercise certain rights within the limits of each State, by an occupation of the soil, for the uses and purposes for which the government is established. It confers, by agreement and grant, a power of eminent domain; a right to take lands for forts, arsenals, navy-yards, military roads, and other public uses; a right of occupation within the waters of each State by a naval force when necessary; a right on land and water for the collection of customs; a right of taxation, and of collecting the taxes by sales of lands and goods; a right to have court-houses, to hold courts, to reverse the judgments of the State courts in certain instances, and to execute final process against persons and property. These grants of rights to occupy, take, possess, use, tax, try, judge, reverse, and do final execution within the limits of every State, show a permanent servitude of a most extensive character; the United States, representing all the States, being the dominant, and each State a servient party. From their very nature these rights and powers cannot be resumed or revoked at the pleasure of any State, or of any number of States less than the whole. And it may be added that they impair, somewhat effectually, the supposed absolute sovereignty of the separate States. Civil war may suspend the ex-

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ercise of these rights and powers, but it does not annul or take them away. It has been urged by the advocates of secession, that the tenth amendment of the Constitution, which provides "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," sustains their positions. If it were shown that the States had a right of seceding from the Union before there was any Union to secede from, there would be some foundation for this suggestion, as it is quite clear that no right of secession was granted to the United States; and the conclusion would follow, that it was among the rights reserved. But the supposition of an existing right to rescind a particular contract before the contract is entered into, of the existence of a right to secede from a Union which is not formed and may not exist, and then a reservation of this right of secession by a general declaration, after the Union was formed, that powers not granted were reserved, is simply an absurdity. There could be no right of secession until there was something to secede from. Such a right could come into existence only upon or after the creation of the Union which was to be broken up by the exercise of it; and it is preposterous, therefore, to say it was a right reserved to the States by the general reservation of all powers not granted or prohibited, which referred only to rights or powers pre-existing. But this argument may be disposed of in another manner. A similar reservation, but in much stronger terms, was contained in the second clause of the Articles of Confederation, in these words: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled." The change in the phraseology of the reservation, or declaration, may be worthy of note. Now if this earlier, and in terms much more ample reservation, found in those Articles, did not include a right of secession from the Confederation, upon alleged grave violation of the powers conferred upon Congress by that instrument, still less can the tenth amendment of the Constitution sustain any such right to judge of infractions of the Constitution, and to withdraw by virtue of the powers reserved. And this leads us to a concluding and conclusive argument to show the perpetuity of the Union as established by the Constitution, and according to

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the Constitution, even if that instrument is supposed to have the character of a compact. W e have thus far endeavored to show that there was no right of secession from the Union established by the Articles of Confederation, and that there is no such right under the Constitution, upon general principles applicable to such instruments, whether regarded as compacts or as organic laws. W e now proceed to make assurance doubly sure upon this point, by specific citations from the express language of the Articles, and of the Constitution itself, and from official documents connected with their adoption, which admit of no misapprehension. The Articles of Confederation expressly, explicitly, and in the most emphatic manner, established a "Perpetual Union" between the States. As prepared and submitted to the States for ratification, they were entitled "Articles of Confederation and Perpetual Union." And the closing part of the last of the Articles is: — And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

The Articles having been agreed upon in Congress on the 15th of November, 1777, on the 17th of the same month that body transmitted copies to the several States, for the consideration of their respective legislatures, accompanied by circular letters, in which it was represented that, "to form a permanent union accommodated to the opinion and wishes of so many States, differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish." In recommending them to the immediate and dispassionate attention of the legislatures of the several States, it was said: — Let them be candidly reviewed, under a sense of the difficulty of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities, — under a conviction of the absolute necessity of uniting all our councils, and all our strength, to maintain and defend our common liberties; let them be examined with a liberality becoming brethren and fellow-citizens surrounded by the same imminent dangers, contending for the same illustrious prize, and deeply in-

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terested in being forever bound and connected together by ties the most intimate and indissoluble.

Still further: — The closing recommendation, of set purpose, it would seem, to show again that the union was to be perpetual, repeats the title: — And to each respective Legislature it is recommended to invest its delegates with competent powers, ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States.

A preamble was affixed to the Articles, reciting that the delegates in Congress assembled did on the 15th of November, 1777, "agree to certain Articles of Confederation and Perpetual Union between the States," which are then set forth at large; and they are followed by the formal instrument of ratification, subscribed by the delegates authorized for that purpose, in these words : — And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress, to approve of and to authorize us to ratify the said Articles of Confederation and Perpetual Union: Know ye, That we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and Perpetual Union, and all and singular the matters and things therein contained; and we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

It seems impossible to read the foregoing extracts without a conviction that there was an industrious repetition of the idea that the Union under the Articles was to be perpetual, so that no doubt should ever after be entertained respecting it; and certainly no agreement to that effect could be more explicit than that contained in the closing parts of the Articles and of the ratification. The Articles of Confederation which established this "perpetual," "permanent," "indissoluble" Union, proved to be inadequate to the purpose for which they were adopted, and proceedings were had, from time to time, in Congress, with a view to amendments. The history of the change by which a Union under the Constitution was substituted for that under the Articles of Confederation, need not

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be set forth at this time. The great defect appeared to be a lack of power in Congress to regulate commerce. But at a meeting of commissioners from five States, held at Annapolis, in September, 1786, a report was made to their respective States, and copies transmitted to Congress, in which they represented the necessity of a convention, with a full attendance and enlarged powers; and recommended the appointment of commissioners "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same." A convention was assembled, and finally reported the Constitution, providing for regular legislative, executive, and judicial departments, with enlarged, but limited, powers, appropriate to such departments, and of a national character; by reason of which it became necessary to submit it to the people for ratification. It was ratified, and thus the government organized under it was substituted for the administration existing under the Articles of Confederation. The reasons for its adoption, summarily set forth in the preamble of the instrument itself, are "to form a more perfect Union, establish justice, insure domestic tranquillity, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Now it appears to be preposterous to contend that this more perfect Union, established for posterity as well as for the existing generation, and thus substituted for the perpetual, indissoluble Union under the Articles, is one which was to exist only at the pleasure of each and every State, and to be dissolved when any State shall assert that it is aggrieved, and repeal the act of ratification. The Union could not be made "more perfect" in relation to its endurance. It certainly was not intended to be made less perfect in that particular. These considerations show further, that the political axiom, that "all rightful government is founded upon the consent of the governed," cannot justify or excuse secession. It might be urged that the principle asserted is not that government is founded upon the consent of all the persons to be governed, but we pass that. The con-

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sent has been given by the ratification of the Constitution. The compact has been made by the Fathers, who vindicated their title to the country, and their right to form the institutions under which it should be governed. The present generation comes in as their successors, and is thus "in privity." The covenant "runs with the land," and binds all persons who occupy it. If any one desires to relieve himself from the obligations which it imposes, he can secede, personally, by transferring his domicile to some other country.

Pamphlet 3 John Pendleton Kennedy The Great Drama; An Appeal to Maryland. Baltimore, [1861] [Although John Pendleton Kennedy was an aristocratic resident of Baltimore where it was fashionable to be Confederate in sympathies, he unflinchingly supported the Union throughout the Civil War. Kennedy ( 1795-1870) had distinguished himself years earlier as the author of S wallow Barn, sketches of the Virginia countryside in the years after the American Revolution, and of Horse-Shoe Robinson, a novel of the Battle of King's Mountain. He had served as a Whig in the Maryland legislature and in Congress; he was secretary of the navy in the administration of President Millard Fillmore. After the disintegration of the Whigs, he followed Fillmore into the American (or Know-Nothing) Party, which carried only Maryland in the election of 1856. In i860 he was Maryland chairman of the moderate Constitutional Union party. During the secession crisis Kennedy worked energetically to effect a compromise. Failing, after the outbreak of hostilities he turned his energies to retaining Maryland in the Union. Virginia had seceded and the citizens of Baltimore were proclaiming, "Maryland must go as Virginia goes." Kennedy tried to counter this sentiment by writing The Great Drama, which was published in the Washington National Intelligencer on May 9, 1861, and printed as a pamphlet in Baltimore. His arguments seemed to sway few of his Baltimore acquaintances. Many of them boycotted him, leaving the room when he entered or, when they encountered him on the street, shouting, "No, siri No, sir!" Kennedy adhered firmly to his unpopular views and in time became a Republican. At first he doubted Lincoln's ability, but in 1862 wrote his Boston friend, Robert C. Winthrop, that "old Abe has really, as he says, set down that great, broad, flat, and heavy-shod foot of his, in good earnest, and it will squelch the whole dozen reptiles who are now crawling across his path into an indistinguishable mass of slime." *] IT is the most deplorable misfortune of our unhappy country, at this moment, that it has no authentic voice to speak its honest, sober 1 [Charles H. Bohner, John Pendleton Kennedy, Gentleman from Baltimore ( Baltimore, 1961), esp. 230-31.]

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judgment on the public affairs. Here we are in Maryland, involved in a dreadful revolution which has already convulsed society to the centre, torn up its prosperity by the roots, sown discord in families, alienated old and familiar friends, and spread consternation through the whole community. It has visited peaceful and thriving households with want, stricken down fortunes acquired by long and patient industry, scattered the small accumulations of humble thrift, and reduced to absolute beggary thousands and thousands of the best and most useful of our working population. These are the ravages of the first act in the Great Drama. The second act is about to open upon us. The pride and flower of our youth are in arms. Hostile camps are gathering their forces. Wild, ungovernable and savage men are openly and stealthily armed with terrible weapons. Hatreds are cast abroad and sown in fierce hearts. Denunciation and proscription are uttered in undertones and with ominous threats of mischief. Soon we shall hear the clash of arms. What then? Read the wars of the Roses; read the marches and the raids of Cromwell; the ravages of the Palatinate; the fusilades of Lyons. Read, at random, any page that records the rage, the demonism, the hellish passion of civil war, and fancy the sack of cities, the brutal and indiscriminate murder of old and young of either sex, the rape and rapine, the conflagration, the shriek of surprised families, the midnight flight of mothers and children tracking their way with bleeding feet — the mourning, the desolation, the despair which are all painted in such horrid colors in that history — fancy all these pictures converted into the realities of our own experience, and we shall then come to the perception of the second act of this portentous drama. How does it come to pass that this, our prosperous State of Maryland — this, our beautiful City of Baltimore, is suddenly hurled into the bosom of this commotion? Why is it that Maryland, so remote from the first theatre of revolution, so little concerned in its issues, so reluctant to take sides in this miserable quarrel — Maryland, happy and peaceful — why is it that she is doomed to stand forward, the first to encounter the sweep of this storm, to bear its continuous brunt, and to give up her substance, her children and her homes, to the alternate ravage of contending factions, until war, wearied with slaughter and exhausted by its own destruction, shall no longer find a victim or a country to punish?

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We answer this terrible question truly when we say that Maryland, like her sisters of the Confederacy, is allowed no free and honest expression of her thoughts. It is too painfully obvious that Maryland opinion is surrendered to the control of influences that repress all wise and earnest consideration of the momentous topics that belong to the public welfare. Its key note is derived from the heated utterances of passionate and thoughtless youth, of impressible women and girls, of infuriated politicians, of all that multitude of excitable, rash, unreasoning persons who fly to conclusions under the impulse of prejudice, desire or interest; and lastly and more significantly, of wily, unscrupulous partisan leaders who are moved by premeditated design to accomplish a selfish party triumph. In the domineering ascendancy of these agencies over the public mind, the quiet, reflective good sense of the community is repressed; the orderly and industrious are kept in the background; the timid are overawed; the weak are silenced, and the credulous are misled. The whole movement towards secession, even in the States most favorable to it, has been artfully promoted by the fabrications of a false opinion. It has been borne along by a whirlwind of contrived excitement. The passions of the people have been inflamed by exaggerated representations of impending dangers; by skilful exhibition of the idle ravings of mad and wicked fanatics as the settled views of the Government; by startling conjunctures preconcerted by the managers to madden the temper and overwhelm the discretion of the populace, and by provoking outbreak and violence as the topics for frantic appeal to the manhood and patriotism of the State. The unnecessary bombardment of the starving garrison of Sumter was intended to stimulate the reluctant mind of Virginia to secession. The simultaneous seizures of Gosport Navy Yard and of Harper's Ferry were the arranged stimulants to confirm the wavering resolution of that State. The futile and calamitous attempt to resist the passage of the troops through Maryland was but another spur to quicken the speed of secession, by driving the State against its better judgment into rebellion. The secession enterprise, everywhere, has been remarkably characterized by the signs of a conspiracy to give the minority, a command over the majority. It avoids reference to the popular consent, screens its plans from public criticism by secret sessions, and plies the machinery of pas-

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sion to rush the people into the abyss of revolution, with the renunciation of all thought and forecast of its consequences. There is something ungenerous, and even worse, in the advantage which the Seceding States have taken of the wise and patriotic sentiment of the Border States against coercion. When these latter States pledged themselves, in the beginning of the rupture, that they would not sanction any attempt of the Government to coerce the Seceders into submission, it was a pledge that the experiment of secession should be allowed to take its allotted course in peace, with the hope that peace would bring calm judgment into action, and, through its influence, an early return to harmony in the Union. Such a pledge implied a counter-pledge of moderation of counsel and honest confidence in the unbiassed judgment of the people, by the Seceding States. It implied that the good sense of the country should be left free to act, with perfect immunity from artificial excitement, on the whole subject wherever it might be brought into debate. Instead of granting this freedom from agitation to the Border States, the secession party of the South, taking advantage of the promise against coercion, has busily employed itself in provoking collision by assault and spreading panic by alarm, and thus stirring the population of the Border into sudden revolt against the Government. They contrive a necessity for coercion, and then call on the Border States to resist it, in fulfilment of a promise really made to secure peace. Such are the conditions in which Maryland is now invoked to imbrue her hands in the blood of civil war. It cannot escape observation, that, notwithstanding the large majority of the people of Maryland are now, and ever have been, true and faithful to the Union, and averse to every design to drag them into this ruinous career of revolution, there is an active, intelligent and ardent minority in the State who are bent upon forcing her into the Southern Confederacy; and that although this secession party, now accidently in possession of the legislative power, finds itself compelled to succumb to the force gathering around it and to temporise with the difficulties it cannot surmount, it still cherishes the purpose of future control, and only lies at lurch waiting the events of the day, to make a new effort to array the State against the Government. In this condition of things, it is of the profoundest moment that

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we should invoke the good sense of every patriotic citizen in our Commonwealth to look the danger around us in the face, and before it is too late, to make a united effort to recall our excited brothers to an honest and sober consideration of our destiny. The men of Maryland, of all parties, are too earnest, too faithful to their duty to themselves and the community in which they live, too honorable, frank and just, knowingly to perpetrate a wrong against the prosperity and happiness of their own homes and kindred — their children and their friends. We accord the fullest honesty of intention even to the rashest and most thoughtless of those who are endeavoring to cast our lot upon the path of disunion. We believe them sincere in thinking that the honor and the welfare of the State demand that we should follow the lead of the bold spirits of the South who have plunged the country into this commotion. Our ingenuous and excitable youth have yielded to what we regard as but a natural impulse, when they bravely rushed to arms to resent what they were taught to think an invasion of our rights. In doing this, they have only demonstrated a noble and mistaken ardor proper to their age and temper, and which now but wants a good cause to win all the applause to which they aspire. They prove to us how much we may depend upon their manhood when the country really requires their arm. But they, like many of their elders, are acting under a delusion. Maryland has no cause to desert our honored Stars and Stripes. Out of this Union, there is nothing but ruin for her. In the Union, dark as may be the present day, the stout resolve of Maryland to maintain her fealty to the faith of her fathers, will secure to her yet a glorious future. Let us not fall into the fatal error of thinking that the great interests of the Union are irretrievably lost by the election of an Administration we do not like. At the worst the present predominance of a sectional party in the National Government is but a transient evil. We shall never have another but through the ignoble surrender of the loyal men of the South. Even indeed now, the perpetuation of such a party is an impossibility in the North. The excitement and storm of this day — if it has, for a season, unseated the prosperity of the nation — is worth all its privations, in the good it has already accomplished. It has forever put an end to that pestilent agitation of slavery which, for thirty years, has disturbed the

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repose of the country; it has forever put an end to sectional Presidents and parties; it has revealed a great truth to this nation — that the Union is above all party, and that peaceful brotherhood is the most beneficent of all our blessings. Let us bring our minds to a calm estimate of our own duty in this great crisis. There is but one issue before us, Union or Disunion. Every man in Maryland must meet that issue. Union, on the one side, is loyalty, faith in the traditions of our ancestors, devotion to our historical renown, brave support of our country in its adversity. Disunion — let us not evade the conclusion — is rebellion, desertion of our duty, dishonor to our flag; voluntary disgrace cast upon the names of the heroes and sages who have made our country illustrious in human annals. It is prompted by the assertion of a principle of anarchy which makes all government impossible; a false dogma which affirms a right of disintegration that may pervade every division of society. This assumed right of secession is scouted by the judgment of the world. No jurist, no statesman, no man of honest judgment ever affirmed it until, in these later days, it was found to be the convenient pretext for a party design. Every President who has heard it uttered, every Cabinet, every State, every party, at one period or another of our progress, has disowned it. If Washington or Jackson were alive they would account it only as rank rebellion and would so treat it. We may not shelter ourselves under the plea of revolution. Maryland has no cause for revolution. No man in Maryland can lay his hand upon his heart and say that this Government of ours has ever done him wrong; has ever stinted its bounty to him in the full enjoyment of his life, liberty and pursuit of happiness. We cannot answer to God or man, therefore, for plunging into the great crime of rebellion and treason. Our honor, our faith, our religion will rise up in judgment against us, to convict us of the greatest wickedness man can commit, if, on such a pretence, we lifted a bloody hand against the blessed parent of our political life. Is loyalty nothing? Submission to law nothing? Fidelity to duty nothing? Gentlemen of Maryland, do these things no longer touch your honor? Will you listen to the sordid arguments of gain, to the mean persuasions of interest, to the fear of danger, to the wretched slanders of fanatics,

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to the dread of that vulgar obloquy which brands you with the name of "Submissionists," to seduce you from your allegiance to the government you have inherited from brave ancestors? Has the cavalier blood become so diluted in your veins that you can for such motives abandon your country in her distress? We mistake you, and have long misunderstood you, if that be the spirit in which you meet this crisis. No, no. Stand by your ancient flag. — Be true to Maryland and keep her where your fathers placed her, and when the time comes redeem your country. For what does Secession now rear a mutilated banner? For what cause does it invite us to take up arms? We hear different answers to these questions. Some, who think a sectional patriotism to be their greatest duty, answer, "For Southern Rights." Others, who think worldly profit a higher motive, say, "For Southern trade." Others again, who seem to be swayed by a kind of fatalism, say, "We have no choice — we must go as Virginia goes." We have not yet heard the first man on that side say any thing about Maryland rights, Maryland honor, or Maryland independence. Is it not strange that they forget Maryland has any duty to perform to herself and for herself? Let us weigh these answers. What are Southern rights? Everybody speaks of them, nobody defines them. So vague, so misty, so variable, they escape every attempt to grasp them. Do they comprise, as a chief demand — as many say they do — the right to maintain the institution of slavery unmolested and unimpaired in the States that possess it? If so, no one now disputes that right. It is affirmed and offered to be made perpetual, even by the late Republican Congress, by the enactment of an irrepealable amendment to the Constitution, which guarantees it forever. Do they assert the right to take slaves into all territory of the United States south of the Missouri line, as proposed by the Crittendon resolutions? If that be the demand, that right now exists to its fullest extent, and slavery is at this day by law protected in every foot of territory

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south of 36.30; and even the three new territories north of that line are open to the admission of slaves without restriction. Do they mean the right to recover fugitive slaves from the Free States? If so, all impediment to that right is virtually withdrawn. The Administration affirms a purpose to execute the law, and, in point of fact, the law is now executed with more efficiency and less obstruction than it has been for thirty years past. Are these the Southern rights for which we are invited to get up revolution and war, and will war be likely to secure them in more full enjoyment than we have them now? Are there any other Southern rights in dispute? We hear sometimes of a right to free trade and direct taxation; a right to traffic in African slaves; a right to Cuba, to Mexico, to Central America. Is Maryland willing to fight for these? Then as to "Southern trade," which has captivated the imagination of some who have fallen into the Secession ranks. There are many variant and contradictory notions on this point. Carolina hopes to make a New York of Charleston, Georgia claims this bounty for Savannah, Virginia demands it for Norfolk, Louisiana pleases her fancy with the miraculous growth of New Orleans. The visionaries of Maryland quietly smile at all these delusions, perfectly confident that the cornucopia is to be emptied upon Baltimore. We say nothing of the heart-burnings and jealousies which these various hopes must engender if any one of these dreams are realized to the disappointment of the others. We are only concerned to look at the probable result upon Maryland. This supposed commercial advantage is founded upon the idea, much commended in the South, of free trade with all the foreign world, and heavy restrictions upon the trade with the United States; a system of commerce built upon complacency on one side and revenge on the other. The Southern Confederacy, it is presumed, will, in the future permanent arrangement of its policy, encumber one-half of its trade — and that its most indispensable and necessary supply — with heavy duties, and leave the other half, which chiefly concerns its luxuries, free. Does any experienced merchant believe this? What will the South gain by laying duties upon the

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thousand productions of the North that now enter so largely into their common household and agricultural wants? Will they get their farming implements, their machinery, their wooden ware, their fish, their beef, their hay, their ice, their carriages, shoes, hats and clothing — any part of their whole inventory of family requisitions — more cheaply for that? No other country can supply them so well, and the experiment will soon prove that every cent of tax so levied is but a charge upon themselves. When that is proved, and the passion of the day subsides, it is reasoning against all the motives of human conduct to suppose that a merely vindictive restriction will be allowed to exist. The North would soon grow to be in the same category to the South with all the rest of the world — in war, enemies, in peace, friends; and the free trade system, if practicable at all, will be extended equally to all within the range of Southern commerce. There are some who think these discriminations will be made with a view to the establishment of large manufacturing interests in the South. But to this there is the obvious reply, that no manufacturing system ever was built up in companionship with free trade; and the Southern Constitution has already put a veto upon the attempt by a specific prohibition of all power to protect any domestic industry. The Northern manufactures are sufficiently established and prosperous to compete with the world in free trade, and they will always continue to find a Southern market from their exact adaptation to Southern wants. But the manufactures of Maryland, in great part, are precisely those which would wither and perish under the free trade policy. W e could supply no iron from our mines, no iron fabrics from our workshops. Our great steam enginery, our rail road apparatus, our heavy works of the foundry, our cast and rolled metal, could never hold their own in the presence of free importations from England. It will occur to any one conversant with our workshops, that much of our most important industry here in Baltimore, and throughout the State, would be compelled to yield under the pressure of European rivalry. Again, free trade implies direct taxation to raise revenue for the support of government. A glance at this will supply another element for the consideration of those who fancy that Maryland is to prosper in a Southern Confederacy.

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The expenses of the new government are inevitably to be cast upon a higher estimate than we have ever witnessed in our heretofore harmonious Union. Large armies and navies are to be provided as the necessary apparatus of government. Fifty millions a year will not be an unfamiliar experience to the Southern financier. If that amount is to be levied upon some nine million of free population, which about represent the present number of the whole of the Southern States, it affords a ratio of more than five dollars a head. If but thirty millions be the expenditure, it will be over three dollars a head. Maryland contains near six hundred and fifty thousand free persons, and thus we estimate her annual share of the tax at over three millions per annum, on a fifty million expenditure, and on the supposition of thirty millions, something near two millions per annum. Our present State tax is about two hundred and fifty thousand dollars. The addition to this, for the support of the Confederate Government, will, on the first supposed rate of expenditure, be twelve, on the other, eight times the present tax. I give these figures as a formula of calculation which any one may apply to his own estimate of the probable expenditure of the new government, if its revenues are to be supplied by direct taxation. How the trade and industry of Maryland may reconcile themselves to such a system, I leave those to judge who are best acquainted with the tax bills our present necessities impose upon us. If it should be discovered, as I have no doubt it will be, after some sore and short experience, that this free trade fancy is but an expensive delusion, and that the old, long tried, universal and inevitable system of duties, known to and practised by all nations, as the most commendable system of national support, must be substituted by the Confederate States, what then will be the condition of their commerce? It will then be found that the revolution has been a vain work. The bubble will have burst, and the experimenters, after having turned the whole nation back a quarter of a century in its career — having ruined a generation, subverted more capital than would suffice to purchase every slave in the nation, accumulated a debt impossible to be paid, and spread repudiation and bankruptcy over a whole circle of States — happy, if to these evils it has not added the clothing of every household in mourning — the experimenters will then find themselves vainly endeavoring to restore trade to the same relations and arrange-

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ment in which it was at the fatal moment when they initiated their new career. All that will then have been achieved will be the creation of a double set of political dignitaries, and the distribution of a double supply of loaves and fishes to the patriots of the ferment. A tariff of duties for revenue once adopted, it then becomes the plain policy of the United States of the old Confederacy to enact the same rates, and commerce will immediately oscillate back to the track and custom of its old career. Even if it should not be drawn again into that current, what has Baltimore to hope for? Will she import for the South, from the head of the Chesapeake, whilst Norfolk lies on the margin of the sea at its mouth, with an admirable harbor, and with all the means of Western and Southern distribution by rail roads that penetrate to the Mississippi and Ohio? Do old and sagacious merchants of Baltimore allow this delusion to seize their minds? Boys may prate about such things, but surely men of sense will repeat no such absurdity. But, we have heard it said, if Maryland be not a member of the Southern Confederacy, Virginia, in time of war, may close all access to the Chesapeake against us. That is true. But if Maryland should be a member of that Confederacy, then the North, in time of war, may also shut up the Chesapeake against us; and not only that, but may also shut up our Western and Northern Rail Roads. It may deny us the Ohio river; it may deny us access to Philadelphia, to New York — utterly obliterate not only our trade, but cut off our provisions. In the other case, Virginia could not do that, nor even impede our transit on the Baltimore and Ohio Rail Road, as long as Western Virginia shall stand our friend, as assuredly it will if we are true to ourselves. The last argument popularly used in favor of the secession of Maryland, is that which asserts a necessity that compels us "to go as Virginia goes." It is supposed that the recent attempted secession of Virginia leaves us no choice. It is declared that our sympathies as well as our interests are with Virginia; in fact, that our fate is in her hands. If this were true, it would have been but a becoming decorum in Virginia to have invited us into her counsels, or, at least, to have warned us of the complications she was preparing for us. As it is, she has led us blindfold to the verge of the precipice, and those of our own fellow-citizens who renounce for us all freedom of opinion on our own destiny, tell us we have no choice but to take the leap.

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We deny that Maryland is so bound up in the fortunes of Virginia. We regard the interest of that State to be quite as dependent upon the favor of Maryland as Maryland is upon her. In all that denotes vigor, growth of power, and capacity for great enterprise, Maryland is ahead of Virginia. Whilst our population in the last decade has increased twenty-five per cent., that of Virginia has not advanced over twelve. What we have accomplished in public works and in the extension of commercial activity bears a still more favorable comparison in the estimate of the resources of the two States. Let us not so derogate from the influence and capability of our own State as to surrender our independence to the control of politicians who have as yet shown so little capacity in governing their own. In truth, we might, with good reason, reverse the affirmation of the argument we are considering, and say that Virginia should look to Maryland, and should adapt her policy, on this question of separation, to ours. She should at least, consult the other Border States, Kentucky, Tennessee, Missouri, as well as Maryland, and shape her course in conformity with their common views. When we speak of Virginia, there is another most significant question to be considered. To what portion of Virginia are we to attach our fortunes? Is it to that waning Eastern section which at present holds the political power over the State — that section whose population, scattered over the region visited by the tide, is gradually declining in numbers and losing its ascendancy in the public affairs, and whose power at this day is founded rather upon the traditions of the past than upon any inherent capacity to govern? or is it to that vigorous and healthful Western Virginia upon whom nature has lavished her bounty in the provision of all the elements of a prosperous and powerful community? Virginia is divided into two distinct sections, altogether different in physical quality and in moral character. The one teems with a redundant slave population, of which the excess is kept down by a continual drain of emigration to the South. Its habits are Southern, its affinities are for the South. These are not less nourished by the character of its labor than by the temper of its leading men — talented and impulsive and educated in strong sympathy with the Secession States. The other division includes the land of the mountaineer — a land of mineral wealth, of rapid streams, of fertile pastures, of bracing atmosphere, where the people have little dependence on slave labor,

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and who see in the resources of the soil and climate an invitation to all the varied industry of populous and thriving States. We of Maryland are solicited to associate ourselves with the first of these divisions. It is said our natural relationship is with them. We certainly have had abundant reason, in the past to know that the governing power of Virginia does not reciprocate the favor of this relationship. Maryland has no more persistent and steady antagonism to her policy to contend against than she has ever found in the domination of this low country influence. Let those who have had the management of our public works, our rail road and canal, say what difficulties they have had to encounter in the hostility of Virginia to the grant of the smallest privilege or aid from that State; and let them describe how all solicitations have been refused until the friendly intercession of the Western counties, often baffled, has at last by peremptory demand secured us the grace of being permitted to expend millions of Maryland capital upon Virginia soil. The true friends and allies of our policy are in the West. At this moment that region is making its protest against secession. It is a matter of the deepest moment that we should wisely appreciate this fact. It is not for us now to discuss the probable contingencies of the future which may spring out of the state of opinion in the Western counties, but we should not blindly adopt a policy in the present juncture which may forever alienate them from the interest which makes them the guardians and protectors of our road and the ministers to our trade. The singular change of opinion which has recently brought Virginia into secession is one of the inexplicable things of the day. Time may perhaps prove it to be a forced assent obtained by the arts which have, everywhere in the seceding States, more or less subdued and coerced public opinion. At present the world can only perceive that "the Mother of States," in spite of her protestations of independence, in spite of the contumely and insult heaped upon her, has succumbed to the dictation of Carolina — has been "dragged" into revolution and compelled to an act of submission, by which she has surrendered her lofty position as a mediator in the national quarrel and sunk into a secondary power in the new Confederacy. She is the first of the Border States that has given way. Let Maryland be the last to follow her example.

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We cannot forget that the Southern Confederacy has hitherto repudiated all connection with the Border States; that they were contemptuously repelled as unworthy of consultation. It is only now, when a severe experience has demonstrated the necessity of friends able both to pay and to fight, that these States are approached with flattering appeals to take a stand in the very front of war and bear the brunt of its worst assaults. We who never felt or professed any respect for their cause, who, indeed, accuse them of having produced all the difficulties and disgraces which have resulted from the recent Presidential Election, are now counselled to patient submission to this coercion, and even to embrace it with thankful avidity as an honorable duty. Virginia has placed herself at the head of the Submissionists, and men whom we have esteemed, here in Maryland, for their manhood, tell us we have no choice but to follow her example! I draw this view of our condition to a close by repeating my clear conviction that the interest and safety of Maryland coincide with her loyalty to the Union, that disunion is ruin to her. Let us not be moved by the taunt that we are aiding the Republican cause and vindicating the administration of Mr. Lincoln. That is but the party vituperation of those who seek to frighten us by false clamor into an abandonment of our opposition to their own party schemes. We deplore the unfortunate ascendancy of the Republican party; we censure the policy of the Administration. We may claim much more respect for our sincerity in this than our opponents are entitled to ask, since it is only by their machinations that the Republican party has won its ascendancy, and by their desertion of their posts and their duty in Congress, that Mr. Lincoln's administration has obtained any power to involve the country in the present commotion. In the stage at which the public embarrassments have now arrived, all the questions of the late canvass have disappeared. The country is aroused to the protection of the Union, to the defence of our system of government. The men who were most earnest in opposing the election of Mr. Lincoln throughout the whole North and West are united into a compact body, in a unanimous determination to vindicate the right of the people to the Union bequeathed to them by their fathers. Large numbers in the South, whose voices are suppressed by the despotism of party rule, have the same sentiment deeply impressed upon their hearts. The conservative Northern men who have come so sternly

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and with such alacrity to this duty of defence — a majority of the Northern people — will visit with indignant disgust the fanatical agitators of the slavery question, whose wicked pertinacity has raised this storm in the nation, and we shall hear no more of the wretched cant of the sin of slavery in the South. That abuse of the peace of the nation will be purged away by this commotion, if no other good result from it. On one side of us is a united nation of nineteen millions of people. On the other, a divided population of nine millions. We stand between them. If we remain true to the Union, we shall have protection and peace, and hereafter an easy settlement of all our complaints. If we desert the Union, we shall be driven into a Confederacy which has but little sympathy with our interests, and less power to protect us against the ravage of the frequent wars which must inevitably arise between the two sections. The Southern Confederacy is essentially weak in the basis of its construction. It is founded on a principle which must lead to the ever recurring dangers of new secessions and the exhibition of a worse than Mexican anarchy. It may witness pronuncUimentoes upon every discontent, and the strife of parties ending in further disintegration. If the Border States go into that Confederacy, the opposition of material interests will soon develop the utter want of capacity in the new government to secure its cohesion. Maryland, under any circumstances of peace or war, must soon become a Free State, and she will then be found to be wholly ungenial to the principle upon which the Southern Confederacy is established. It would, therefore, not be long before she would be compelled to retire from the alliance and become a suppliant for shelter under the wing of that old Union which in a rash moment she had abandoned. If she remain where she is, her example may influence the course of the other Border States which now are drawn to the verge of secession, and with them may happily bring about a restoration of the whole Union. Four years hence, this Administration will give place to another. A popular, conservative President then elected will restore confidence to the whole country. The Union sentiment of the South will make itself heard in the remotest sections of the secession, and disenthralled from the domination that now forbids it to speak, it will once more assert its attachment to the Stars and Stripes.

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Let the true voice of our State now be heard on these questions. The Legislature now in session has one solemn duty to perform. It is to give the State an opportunity to declare its wish. Much has been said about the desire of Maryland to fall into the ranks of the Seceding States. There has been a great clamor for a Convention by those who have been anxious for Secession. Let the Legislature now put the question to the people — Do you want a Convention, with power to declare Maryland out of the Union? Put that question, and we shall then know what part Maryland will take in the Great Drama. JOHN P. KENNEDY. BALTIMORE, May

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Pamphlet 4

Lewis Tappan The War: Its Cause and Remedy; Immediate Emancipation: The Only Wise and Safe Mode. New York, 1861 [A notable abolitionist, Lewis Tappan wasted no effort trying to justify constitutionally the resistance to secession. Rather, in a pamphlet of two parts which he wrote in May, 1861, he blamed the war upon slavery and saw, in its universal and immediate elimination, the solution. At one point he advanced a view later to become important: he cited an 1842 statement of John Quincy Adams that the President or commander of the army in time of war possessed the power to order emancipation of slaves. Lewis Tappan ( 1788-1873 ) and his brother Arthur had been prosperous New York City merchants who had poured their time and money into a wide variety of religious and reform causes: missionary activities, rehabilitation of prostitutes, sabbitarianism, revivalism, prohibition, and above all, abolition. Lewis Tappan was so militant that in 1834 his house had been wrecked and his furniture burned by rioters; by the 1850's his militancy had so increased that he insisted the Federal government should abolish slavery everywhere within its boundaries. In 1861 only a minority of Northerners were as yet willing to accept so drastic a view, even though he showed them a way in which emancipation could be achieved without violating the Constitution.1]

T H E W A R : ITS C A U S E A N D R E M E D Y . VIEWED in the light of Scripture and God's providences, war is the result of sin; and its remedy is repentance and reformation. God, in the present calamitous rebel war, has a controversy with the people — with the whole people — North and South. It is not 1

[ [Lewis Tappan], The Life of Arthur Tappan ( N e w York, 1 8 7 0 ) ; Clifford S. Griffiin, Their Brothers' Keepers, Moral Stewardship in the United States, 1800-1865 ( N e w Brunswick, New Jersey, i 9 6 0 ) , passim.]

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the South alone that is guilty. The North has participated in the guilt. Judged by the divine rule, "For unto whomsoever much is given, of him shall be much required," we may be more guilty than the people of the Southern States. The North has had the majority of votes in Congress, and the preponderance in intellectual, moral, religious, and physical power. It has furnished the politicians and the means to aid the South in their schemes of domination. "For fifty years," said an eminent statesman, "the Slave States have ruled this country, and it has been done with the consent and aid of the Free States." We are a nation laden with trespasses and sins. We have provoked the Almighty to anger, our rulers, statesmen, our ecclesiastical bodies, our churches, the people of the whole land; and He has come out in judgment against us. All history, sacred and profane, bears witness to the fact that he never fails to punish nations that have thus offended, and persisted in their transgressions. His retributive justice seems to require it. Nations, as such, must be punished, if at all, in this world, and they are punished, often with terrible destruction. What nation, considering the light and privileges we have enjoyed, has been so criminal and sinful as ours? Shall we be spared? "Shall I not visit for these things?" saith the Lord; "and shall not my soul be avenged on such a nation as this?" We have sinned in many ways, and especially in our cruel treatment of the Indians and the negroes. The voice of their blood crieth unto God from the ground. But at the present time we refer particularly to the treatment of the colored man — bond and free — and especially of the enslaved. We have been a slaveholding nation. Slavery has been strengthened and extended by the cooperation of the Free and Slave States, in spite of the remonstrances and warnings of the abolitionists, who predicted the present state of things, if slavery was permitted to continue. Emancipation was demonstrated to be both wise and safe. But instead of heeding these warnings, the power of the national government has been exerted to increase the slave power and to extend the slave territory. The North has joined hands with the South in upholding, strengthening, and extending the accursed system, in trampling upon the rights of our brethren in bondage, and in arresting and remanding to hopeless bondage the panting fugitive in his noble attempt to secure his freedom. "We are verily guilty concerning our brother, in that

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we saw the anguish of his soul, when he besought us, and we would not hear; therefore is this distress come upon us." The piercing wail and cry of the enslaved, "How long, O Lord, holy and true, dost thou not judge and avenge our blood?" though they have been unheeded by the nation, have been heard in heaven. "Behold, the hire of the laborers who have reaped down your fields, which of you is kept back by fraud, crieth; and the cries of them which have reaped are entered into the ear of the Lord of Sabaoth." Slavery is the cause of the present war. Who doubts it? And there can be no permanent peace while slavery exists in this country. There will ever be an "irrepressible conflict" between freedom and slavery. If the infatuated men at the South, who have precipitated the slave States into this conflict with the United States government, should, overawed and disheartened by the extraordinary uprising and determination of the people of the Free States, back down and profess loyalty; if a peace should be proclaimed on compromising terms, how long would it be before another treasonable outbreak would occur, and the people of the North be called again into the tented field, to defend the flag of their country, and maintain their civil and religious liberties? What then is the remedy? We unhesitatingly answer: IMMEDIATE AND UNIVERSAL EMANCIPATION. Let the North repent of their sin in conniving at slavery and upholding it, and bring forth works meet for repentance. There is no safety or lasting peace in any other course. By this glorious achievement we should have the blessing of the God of the oppressed, and thus insure to ourselves and our posterity a career of prosperity such as this country has never enjoyed, nor any other nation witnessed. It is a practicable and safe remedy. John Quincy Adams, in his memorable speech, delivered in the House of Representatives, April 14th and 15th, 1842, declared that in case of actual invasion or actual war, whether servile, civil, or foreign; "not only the President of the United States, but the commander of the army, has power to order the universal emancipation of the slaves." Whenever immediate emancipation has taken place, it has been attended with peaceful and prosperous results. This has been fully demonstrated in the West-Indies. Though denied by slaveholders and their apologists, it still remains a historical fact, and the page

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of history will bear attestation to its feasibleness and utility. How could it be otherwise? It is always safe to do right. There are, it is true, inconveniences and losses connected with all great moral revolutions in society and nations, but necessity is the mother of invention, and adjustments soon take place that make the transition easy and beneficial. The negroes are wanted at the South. They would be willing to remain. Hands off! give them freedom, offer them fair wages, protect them in their social and industrial relations, encourage and cheer them, and all would be safe. " B E JUST AND FEAR NOT." If emancipation should be proclaimed by government or otherwise, as above suggested, the slaveholders would hardly attempt to retain the slaves in bondage. Their own safety would induce them to make the best of a political necessity. In Antigua, when the slaveholders found that the British act of emancipation had passed, they at once liberated the slaves without availing themselves of the four years' apprenticeship system; and in Martinique, when the slaves had risen in rebellion because they believed that the emancipation decreed by the French Government had been withheld from them by the Colonial authorities, the slaveholders, believing acquiescence was the part of wisdom, announced Liberty and Fraternity to the bondmen. In both cases, the happiest results followed — peace, concord, prosperity. Prosperity would be one of the attendant blessings of emancipation, in which the South would largely partake. Our peace would flow as a river; the people of the North and South would grasp each others' hands in mutual friendship; commerce, agriculture, and manufactures would receive a new impulse; the burdens of the people would be lightened; and, under the benignant smiles of a kind Providence, the civilized world would exclaim: "Behold, how good and how pleasant it is for brethren to dwell together in unity!" L E W I S TAPPAN. NEW-YORK, M A Y 1 4 ,

1861.

IMMEDIATE EMANCIPATION: THE ONLY WISE AND SAFE MODE. THE people of the Northern States of this country are now nearly unanimous in the belief that the present war, begun by the South

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to perpetuate the claim that it is right to hold property in man, will not end until the cause of the war — Slavery — is swept away by the emancipation of the slaves. They believe that this will be the inevitable result. But f e w comparatively see at present that the only wise, safe, just, and effectual mode is immediate emancipation on the soil. The object of this pamphlet is to demonstrate the feasibleness, utility, justice, and safety of this measure now forced upon the consideration of the people of the free States by the audacity, madness, and fury of the traitors who have precipitated the South into rebellion and civil war with the people of the North. It is an incontrovertible fact that immediate emancipation, under present circumstances, is a constitutional measure. Whatever difference of opinion might have existed before the present war, between the advocates and opposers of it, it is now as clear as noonday, that under the war power, emancipation — immediate emancipation — is justifiable and lawful. During the celebrated debate on the slave question, in the House of Representatives, April 1 4 and 1 5 , 1842, the Hon. John Quincy Adams declared that in case of actual invasion, or actual war, "whether servile, civil or foreign, not only the President of the United States, but the commander of the army, has power to order the universal emancipation of the slaves." This announcement fell upon the ears of the slaveholding members with about as much astonishment and consternation as if a shell had been thrown into the House from some neighboring fortress. Mr. Adams, however, calmly reiterated the assertion, declared that it was in consonance with the L a w of Nations, and challenged a refutation of his assertion. No one attempted to controvert it. Recently, his speech has been published in nearly all the daily press of this city, and by numerous papers throughout the country, without any one venturing to call in question the truthfulness of the declaration of the sage of Quincy, the old man eloquent, the patriot and statesman of old Massachusetts and of the whole country. It being certain, then, that immediate emancipation is a right incidental to the war power, the first inquiry is this: Is it a wise and prudent and safe measure? It would be safe to assume the rightfulness and safety of immediate emancipation, from the consideration that slavery is a sin against God and a crime against man. There are but few, very few, who,

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in the light of this unprovoked and aggressive war, begun by the South and carried on to establish slavery as a national institution, will venture to deny the sinfulness and criminality of the practice. Slavery is wrong, and Freedom is right. It is safe to renounce what is wrong, and to practice what is right. There is no danger in it, in theory or practice. But we will not enlarge upon this à priori argument, for we wish to convince the whole people, and not argue the point merely as a moral question. Can it be shown, then, that the immediate emancipation of the four millions of slaves in this country would be a safe and wise measure? That is the question. But this is not the whole of it. Is it wise and safe to emancipate them upon the soil? That is the only emancipation we contend for, having no belief in the safety or wisdom of emancipation with expatriation. We argue that immediate emancipation upon the soil is the only safe and prudent course, from the following considerations. 1. The negroes are needed at the South, and they would be contented to remain there. White men, whether from the North or from Europe, can not fill their place, and perform the labor that black men can perform on many of the Southern plantations. The reasons are obvious to all intelligent readers. 2. The slaves are unfitted, by education and habits, to sustain, successfully and advantageously, a new empire should they be removed, as some have advocated, to Central America or elsewhere. 3. Such a body of men, women and children could not be removed and planted in a new region. It is physically impossible. It would require a succession of miracles to sustain them, as the Israelites were upheld and protected by their Great Deliverer, during their flight from Egypt, their passage through the Red Sea, and their forty years' pilgrimage in the deserts of Arabia. Suppose that the three hundred thousand slaveholders in the United States had, five years since, given freedom to all the slaves in this country, and that the Legislatures of the Slave States had, by a suitable code of laws, provided for such a state of things, securing the masters from injury, and the emancipated from oppression, leaving it to the parties to make their own contracts for labor and its remuneration; preventing vagrancy; assuring to the laborers the rewards of industry; providing for the education of the young; and, in all suitable ways, protecting the people, employers and em-

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ployees, and their dependents, in their rights — who doubts, in the light of what has been achieved by similar regulations in the British and French islands, in the light of common-sense, and in view of the natural operation of just and humane laws, that both the late masters and the late slaves, nay, the whole community, would, by this time, have been in a well-regulated, peaceful, and prosperous condition — servants being obedient to their masters or employers, and the masters or employers giving to their servants that which is just and equal? 2. Human nature is the same every where, and there is sufficient analogy between the slavery that existed in the British West-Indies, and the slavery that exists in this country, to show that if immediate emancipation has been found safe and wise in Jamaica, Antigua, and other islands, the same measure would be wise and safe in the United States. This is evident and the proofs are abundant. It was a long time before England ventured upon the experiment. It was thought there, as it has been here, that gradual abolition was the only feasible and safe measure. At length a pamphlet was written by Elizabeth Heyrick, a Quakeress of Leicester, entitled, "Immediate, not Gradual Abolition; or, an Inquiry into the shortest, safest, and most effectual means of getting rid of West-Indian Slavery." This was in 1824. The persuasive appeals and powerful arguments of the writer had great influence in England. It is said that W I L B E R F O R C E , on perusing the essay, exclaimed, in the spirit of the Grecian philosopher, on discovering the solution of a problem in the natural sciences : "I have found it!" Henceforth both Wilberforce and his able philanthropic coädjutors devoted themselves to the work of convincing the British people that immediate emancipation was not only safe and practicable, but the only way to bring about peaceable emancipation. They enlisted Buxton and other statesmen in this moral enterprise, and finally secured the passage of the celebrated E M A N C I P A T I O N A C T , by which eight hundred thousand blacks were emancipated — "let loose on the community," as the phrase is; an Act that, with its subsequent modifications, notwithstanding the prognostications of croakers, and the determination of many not to recognize facts illustrating its benefits, stands out before the world as, in its main features, one of the sublimest and most beneficial enactments that ever proceeded from any legislature or government.

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3. Let us look now at the workings of immediate emancipation in the West-Indies. If it worked well there, it would work well here. That it has worked well there, we have abundant testimony. Those who will not believe it, on the evidence to be produced, are blinded by passion, self-interest, or a partial view of things. We have heard of an old woman in Albany county, who would not believe until her dying day that General Burgoyne had been taken by the American army. Prejudice with her was, as it is with others, invincible. But we appeal to wise men; and say to them: "Judge ye what we say." The British Emancipation Act provided for the full emancipation of the slaves after four years' probation, or what was termed the "apprenticeship system." Parliament at the time was averse to the abolition of slavery at once, believing that the slaves must be prepared for freedom. In this they were mistaken, as facts have shown. Antigua rejected the apprenticeship system, preferring immediate emancipation. Experience satisfied the British government that the apprenticeship system was unwise, and attended with injury to all parties. Full emancipation took place to the joy and satisfaction of a large majority of the late masters, and to the people of England. Messrs. James A. Thome of Kentucky, and I. Horace Kimball of New-Hampshire, visited the British West-Indies in 1837, and published the result of their inquiries and observations. We shall make some extracts from their interesting publication. Said Mr. Barnard, of Green Castle estate, Antigua: "Emancipation was preferred to apprenticeship, because it was attended with less trouble, and left the planters independent, instead of being saddled with a legion of stipendiary magistrates." Said Dr. Danieli, member of the Council, and proprietor: "The apprenticeship was rejected by us solely from motives of policy." Said Hon. N. Nugent: "We wished to let ourselves down in the easiest manner possible; therefore we chose immediate freedom in preference to the apprenticeship." David Cranstown, Esq., colonial magistrate and planter, said: "Emancipation was preferred to apprenticeship, because of the inevitable and endless perplexities connected with the latter system." The following testimony is extracted from a letter from a highly respectable merchant of St. John's, a gentleman of long experience on the island, and agent for several estates: "Emancipation was an

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act »of mere policy, adopted as the safest and most economic measure. Mr. Nugent, speaker of the Assembly at the time of emancipation, remarked: "A strong conviction existed that from peculiarity of climate and soil, the physical wants and necessities of the peasantry would compel them to labor for their subsistence, to seek employment and wages from the proprietors of the soil; and if the transformation could be safely and quietly brought about, that the free system might be cheaper and more profitable than the other." Antigua, that contained about 35,000 inhabitants, of whom 30,000 were slaves, rejected the apprenticeship, and concluded to have immediate emancipation, which took place August ist, 1834. The event passed peaceably, although gloomy apprehensions were entertained by some of the planters, and notwithstanding several American vessels which had lain for weeks in the harbor, weighed anchor on the 31st of July, and made their escape, through actual fear that the island would be destroyed on the following day! Said R. B. Eldridge, Esq., after speaking of the number emancipated: "Yet this vast body (30,000) glided out of slavery into freedom with the utmost tranquillity." Said Hon. N. Nugent: "Nothing could surpass the universal propriety of the negroes' conduct on the first of August, 1834. Never was there a more beautiful and interesting spectacle exhibited, than on that occasion." There has been since emancipation, not only no rebellion in fact, but no fear of it in Antigua. The militia were not called out even during Christmas holidays. Before emancipation, martial law invariably prevailed on the holidays, but the very first Christmas after emancipation, the Governor issued a proclamation, stating that in consequence of the abolition of slavery, it was no longer necessary to resort to such a precaution. S. Bourne, Esq., said: "Previous to emancipation, many persons apprehended violence and bloodshed as the consequence of turning the slaves all loose; but when emancipation took place, all these apprehensions vanished. The sense of personal security is universal. We know not of a single instance in which the negroes have exhibited a revengeful spirit." Dr. Ferguson said: "It has always appeared to me self-evident,

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that if a man is peaceable while a slave, he will be so when a free man." Dr. Danieli, proprietor, remarked: "There has been no instance of personal violence since freedom. Some persons pretended, prior to emancipation, to apprehend disastrous results; but for my part, I can not say that I ever entertained such fears. I could not see any thing which was to instigate negroes to rebellion, after they had obtained their liberty. I have not heard of a single case of even meditated revenge." Mr. Favey, manager of Lavicount's, said: "One of the blessings of emancipation has been, that it has banished the fear of insurrections, incendiarism," etc. Rev. Mr. Merrick, Moravian Missionary, said: "In my extensive intercourse with the people, as missionary, I have never heard of an instance of violence or revenge on the part of the negroes, even where they had been ill-treated during slavery." Mr. Nugent said: "There is not the slightest feeling of insecurity — quite the contrary. Property is more secure, for all idea of insurrection is abolished forever." Dr. Ferguson remarked: "Emancipation is working most admirably, especially for the planters. It is infinitely better policy than slavery or the apprenticeship either." Mr. Hatley, manager of Fry's estate, said that the expenses on his estate had been greatly reduced since emancipation. The negroes worked more cheerfully, and did their work better than they did during slavery. Wages were found to be an ample substitute for the lash. The negroes have been more easily managed as freemen than they were when slaves. The Governor said: "The negroes are as a race remarkable for docility; they are easily controlled by kind influence. It is only necessary to gain their confidence, and you can sway them as you please." After the foregoing facts and evidences, we ask, what becomes of the dogma, that slaves can not be immediately emancipated and placed under the government of equitable laws with safety to themselves and the community? It was the testimony of the most respectable inhabitants that emancipation had not produced insolence on the part of the negroes.

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Emancipation had also demonstrated that gratitude is a prominent trait of the negro character. It was abundantly proved also that the emancipated are able and willing to take care of themselves, their children, their aged parents, and their helpless friends. The capabilities of the blacks for education are conspicuous; so also as to mental acquirements and trades. The negroes manifested a growing self-respect and regard for character. This was a feeling which was scarcely known by them during slavery. Emancipation, as might have been supposed, has produced a vast improvement in the condition of woman. Real estate has risen in value; mercantile and mechanical occupations have received a fresh impulse: and the general condition of the colony is decidedly more flourishing than at any former period. D. Cranstown, Esq., said: "I do not know of a single planter who would be willing to return to slavery. W e all feel that it was a great curse." At Barbadoes our travelers were told that "emancipation is as great a blessing to the master as to the slave." The testimony of special magistrates, police officers, clergymen, and missionaries, uniformly corroborated the statements made elsewhere of the beneficial results of the Emancipation Act. Messrs. Thome and Kimball learned in Jamaica that, although many of the planters were not so favorably impressed touching the results of emancipation as were the planters in the other islands, yet that the missionaries, as a body, a portion of the special magistrates, and most of the intelligent free colored people, anticipated glorious consequences. Experience, since that period, has satisfied the great body of the people in Jamaica that emancipation was a merciful, wise, and beneficial act; that notwithstanding non-resident proprietors have suffered more or less, the general welfare of the people has been promoted; and that, if the planters and government had judiciously cooperated in extending to the emancipated the blessings naturally resulting from freedom, in securing a fair remuneration for labor, and promoting education, agriculture, etc., the prosperity of the island would have been far greater than it now is, and the clamors of disappointed planters and mortgagees been very much lessened. Sir Lionel Smith, Governor-General of Jamaica, in his dispatch to Lord Gleneig, dated August 13, 1838, said: "The vast population

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of negroes on this island came into the full enjoyment of freedom on the ist of August. The day was observed by proclamation as one of thanksgiving and prayer, and it is quite impossible for me to do justice to the good order, decorum, and gratitude which the whole of the laboring population manifested on the happy occasion. Not even the irregularity of a drunken individual occurred." The most recent and most authentic intelligence from Jamaica furnishes ample, unimpeachable, and demonstrative testimony that emancipation has proved an immense blessing to all parties concerned. Rev. Henry Bleby, of Barbadoes, delivered a speech in Massachusetts, July 31st, 1858, in which he said: "I have been told, since I have been here, that emancipation, it is understood, has been a failure. I am prepared to give this statement an unqualified contradiction. There is no sense whatever in which the emancipation of the slaves of the British colonies has proved a failure . . . Throughout the British West-Indies, in every island, the condition of the people is incomparably superior in all respects to what it was in slavery. Then, I am told, if it has not ruined the laborer, it has ruined the planter; sir, I deny that as plainly as I deny the other . . . It was not emancipation, but slavery, that ruined those who were ruined. They were ruined long before emancipation took place . . . Long before Buxton and Wilberforce lifted their voices in the British Senate to advocate the emancipation of the negroes, the colonists throughout the West-Indies continually complained that they were ruined." Mr. Charles Tappan, of Boston, who visited Barbadoes, St. Thomas, and Jamaica not long since, and who brought home the written testimony of governors, judges, ministers, laymen, with respect to the beneficial workings of emancipation, says in his report that has been published in several of the newspapers: "The alleged want of labor is a false cry. . . . Where labor is said to be deficient, it can be traced to causes within the planter's control to remove. Of these, insufficient wages, unpunctual payment of the same, or no payment at all, are stated to be the chief. . . . The allegations of idleness and immorality, which have been propagated by the London Times, are indignantly repudiated as gross calumnies, and the writers are challenged to produce the proof of their reckless statements."

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Mr. Tappan says further: "As now advised, it seems to me that lands are worth twice as much as under the curse of slavery. A plantation of 448 acres has just been bought for ¿£40,000, which, I am informed, could not have been sold before emancipation, with all the negroes on it, for half that sum. . . . A white planter informed me that he did not know a planter who would return to slavery if he could; and I find that the opinion of every one." John Bigelow, Esq., late one of the editors of the New-York Evening Post, in his "Jamaica in 1850," published after his visit to the West-Indies, says: "I am clear that if Jamaica was an American State, she would speedily be more productive and valuable than any agricultural portion of the United States of the same dimensions, and that neither the Emancipation Bill of '33, nor the Sugar Duties Bill of 46, are fatal obstacles to a prosperity far-exceeding any thing which Jamaica has ever known." Governor Hincks, late Governor of Barbadoes, has given his written testimony respecting the benefits of emancipation, the good conduct of the emancipated, and the general prosperity of the island, that fully corroborates all that has been said in these pages, which testimony has been extensively published in our newspapers. Mr. William G. Sewell has published a book entitled, "The Ordeal of Free Labor in the British West-Indies." It is composed of Letters originally written for the New-York Times. Mr. Sewell visited the Islands, examined into the experiences of free and slave labor, their social distinctions, their commerce and prosperity, and has presented a commercial view of their past and present condition. He avers that "the commerce of Barbadoes is much more extensive and much more flourishing under free labor than it was under slave labor." Of Antigua, Mr. Sewell says: "She refused to believe in the virtues of an apprenticeship, or in the doctrine that her bondmen needed a purgatory to prepare them for freedom. If they were to be liberated, why not at once, and escape the vexation, the heart-burnings, and the suspense of a wretched ordeal? This was her argument, and in 1834 Antigua became a perfectly free colony. Her rulers were wise in their generation. . . . Antigua has never had any cause to regret the independent course that she then thought proper to pursue." Mr. Sewell remarks: " I came to the West-Indies imbued with

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the American idea that African freedom had been a curse to every branch of agricultural and commercial industry. I shall leave these islands overwhelmed with a very opposite conviction." Speaking of Jamaica, he says: " I hope to be able to show to others as plainly as the conviction has come home to myself, that disaster and misfortune have followed — not emancipation — but the failure to observe those great principles of liberty and justice upon which the foundations of emancipation were solidly laid. . . . Emancipation has not been wholly successful, because the experiment has not been wholly tried. But the success is none the less emphatic and decided." Mr. Sewell says: " E v e r y planter in Jamaica knows from his own books, if they go back far enough, that free labor is cheaper than slave labor. He knows that the cultivation of an acre of cane does not now cost him $40, when in other times it cost him $80. He knows that, under slavery, the cost of digging an acre of cane-holes was from $ 3 5 to $45, while, under freedom, it is from $8 to $ 1 5 . . . . The cost of labor in sugar cultivation was in Jamaica, under slavery, 4 37-iooths cents per pound, and is now, under freedom, two cents a pound. The slave, under compulsory work, produced annually 2286 lbs., while the free laborer, working only six or seven hours a day, and only 1 7 0 days out of the year, produces 2,500 lbs." Mr. Sewell attributes the alleged "ruin" of Jamaica "to faults and errors committed by the planters themselves." He says the planters will not acknowledge it. "The mouth-pieces of the planting interest continue to-day to misrepresent the character of the negro, under the stupid belief that it will create a reaction of sympathy in favor of their party." The fact is, the negroes now work for themselves. The women stay at home, and attend to household affairs and their children. Ask the negro w h y he does not work more for the planters, and his explanation is very simple: "Buckra don't pay." The negro and his family now eat the product of their own labor; they wear the comfortable dress purchased with their own money; they surround themselves with the comforts of civilized life; and they attend to the concerns of their souls. They consume to a great extent what they produce. The laboring population of the island have now the comforts of life, even if the planters export less and make less money than formerly. Does it therefore follow that the island is damaged by emancipation? Ask the people of Massachusetts, if when their

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exports were chiefly ice and granite, they were poor because they consumed the product of their land, and purchased the produce of other lands? In the Missionary Herald, published by the American Board of Commissioners for Foreign Missions, in Boston, May, 1861, is an account of a public meeting held in London, February 20th, 1861, when a deputation that had been sent to the West-Indies to ascertain the real facts respecting the result of emancipation, made their report. They refute the statement of the London Times respecting the alleged extraordinary decrease of the production of sugar in Jamaica, and satisfactorily account for the apparent deterioration of the island in some respects, adding, "At the present time, however, the creóles are rapidly rising in their social and physical condition, and appropriate, to a great extent, the productions of the country to their own use." The deputation also give pleasing and satisfactory statements with respect to the general condition of the people, the property accumulated by the emancipated, their industry, religious condition, education, and morals. The report is full of interest. After emancipation in the British West-Indies, the importations of British goods were greatly increased for the consumption of the emancipated. So, after emancipation shall have taken place in this country, the demand for our manufactures and agricultural products will likewise be greatly augmented. Four millions of new customers! and customers, too, that consume as much as white laborers! This is a consideration worthy the attention of those at the North who take merely a commercial view of the great anticipated moral and political revolution. In view of all that we have said, what intelligent and candid mind can fail to see and freely acknowledge that emancipation has been, in the West-Indies, an unspeakable blessing to both the white and black population? And is it not apparent that emancipation every where must be attended with similar results? Happy will it be for this country when the slaves shall be converted into freemen; happy for those who now hold them in bondage; happy for the whole South, and happy for all parts of the country! Slavery has been the bone of contention in this land for the last fifty years. It is the cause of the present unhappy condition of the country. It is its bane; while emancipation would be its antidote.

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Emancipation should be effected on principles just and equitable to all concerned. The Slave States would derive more benefit from it than the free States, for, beside other advantages, it would increase the value of all the lands in the Slave States. Instead of land being worth $100 an acre on the Ohio side of the river Ohio, and similar land $10 on the Kentucky side, the land in the latter State would be of equal value with the land in the former State. It can be safely said, that after emancipation, the fee simple of the land in the Slave States would be worth a vast deal more than the present value of the land and negroes. Add to this the peace, prosperity, and amicable relations that would prevail throughout the whole country, and especially the blessing of the Almighty upon the nation, which would surely be the result, and what patriot or Christian will not labor and pray for immediate emancipation? LEWIS

61 John Street, New-York, May 23, 1861.

TAPPAN.

Pamphlet 5 John Joseph Hughes, Letter of Archbishop Hughes to Bishop Lynch, of South Carolina. Baltimore,

[1861]

[Northern churchmen resorted to theological as well as constitutional arguments to refute the right of secession. Even the most notable Catholic leader, John Joseph Hughes, Archbishop of New York, engaged in controversy with Southern clergy, although his remonstrance was notable for its mildness. It took the form of a reply to a letter from Patrick Neeson Lynch, Bishop of Charleston, South Carolina, who was also moderate in his states' rights, secessionist viewpoint. Hughes (1797-1864), born in County Tyrone, Ireland, and educated at Emmitsburg, Maryland, had long been a fighter in Catholic causes, especially in opposition to the Nativists. He was so closely associated with Thurlow Weed and William H. Seward that he was often accused of being himself a politician. As the outstanding leader of the Irish Catholics in the North, he preached loyalty to the Union and encouraged enlistment in the army. In 1862 President Lincoln sent him as an unofficial envoy to France and the Vatican; Jefferson Davis similarly dispatched Bishop Lynch to Rome. Near the end of the draft riots in 1863, Hughes, mortally ill, addressed an orderly throng of Irish workmen, using words intended to reach the more turbulent rioters beyond his voice. He reminded them that the Church was the "mother of saints and heroes," but "never the mother of cowards." Only on the issue of emancipation did Hughes fail to follow the Lincoln administration; he labelled the abolitionists who helped finance John Brown as "infidels and heretics," and was sharply critical of the views of the most prominent Catholic layman, Orestes Brownson. 1 ] 1 [Rena Mazyck Andrews, Archbishop Hughes and the Civil War (Chicago, 1 9 3 5 ) ; John R. G. Hassard, Life of the Most Reverend John Hughes . . . (New York, 1866). Bishop Lynch's letter to Hughes appeared in New York Tribune, September 5, 1861; for comments on Hughes's reply, see New York Independent, September 12, 1861, cited in Andrews, Hughes, 5; New York Herald, October 17, 1861, and Brownson s Quarterly Review, January, 1862, all cited in Andrews, Hughes, 5.]

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New York, Aug. 23, 1861. Right Rev. Dear Sir: — I have received your letter of the 4th inst. How it reached, I can hardly conjecture. But it came to hand within about the usual period required for the transmission of mail matter between Charleston and New York during happier years, when all the States, North and South, found their meaning in the words "E Pluribus Unum." It must have run the blockade or dodged the pickets on hostile borders. I have read it with very deep interest, increased, if anything, by the perils of flood and field through which it must have passed. If even the innocent lightning of the North were permitted to carry a message into Southern latitudes, I would telegram you for permission to publish your calm and judicious communication. As it is, however, my only chance of acknowledging it is through the Metropolitan Record, and without special permission publish your letter at the same time. In this way it may happen that, during the war or afterwards, my answer will come under your inspection. Yours is, in my judgment, one of the most temperate views of the present unhappy contest that has ever come under my notice from any son of South Carolina. It is not to be inferred, however, that because I admire so much the calmness of its tone and temper, I therefore agree with all its arguments and speculations. You say I am "reported to have spoken strongly against the war policy of the Government of the United States, as fraught with much present suffering, and not calculated to obtain any real advantage." Be assured that, previous to the outbreak of military violence, I was most ardently desirous of preserving peace and union; but, since violence, battle and bloodshed have occurred, I dare not hope for peace unless you can show me a foundation of rock or solid ground (but no quicksand basis) on which peace can be re-established. The nature of your ministry and mine necessarily implies that we should be the friends of peace. It was the special legacy of our Divine Master to his flock. And it would be strange if we, His appointed ministers, should be found in the ranks of its enemies. His words were, as we find in St. John, "Peace I leave to you, my peace I give to you." And yet St. Paul, in writing to the Christian converts of Rome, says : "If it be possible, as much as it is in you, have peace

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with all men." I think this latter inspired quotation has at least a remote bearing on our present sad difficulties. Your explanations of the causes which have led to this war are entirely Southern in their premises and conclusions. But they are so vividly, and even plausibly stated, that I leave them uncontroverted. Your description of the evils resulting from the war is too correct to be gainsayed by me. Still, here we are in the midst of a sanguinary contest, which, so far as I can see, like a hurricane on the ocean, must exhaust its violence before we can expect the return of national calm. There is no one who desires more ardently than I do the advent of that bright day on which we shall all be reunited in one great prosperous country. Instead of controverting the correctness of your views in regard to the causes of our actual troubles, or determining where or on whom the responsibility of their existence rests, I shall beg leave to make my own statement from a point of view which is found in the general sentiment of the people North of Mason and Dixon's Line. They say that, whatever may have been the anterior origin of this war, its immediate cause was the overt act of turning guns, put in place by the State of South Carolina, against a public military defense of the country at large, which of right belonged to all the States in common. Then it is thought, or at least stated, in these quarters, that the South for many years past would not be satisfied with less than a paramount control of the National Government. The South, it is well known, has been in a fretful mood for many years under Northern assaults, made upon her civil and domestic institutions. It would be, on my part, very uncandid to disguise the conviction that in this respect the South has had much reason to complain. Leaving, however, opinions to fluctuate as they may, I will simply give you my own as to the primary causes of our present strife. You know that free speech and a free press are essential constituents of the first notions of Anglo-Saxon liberty. These were the shibboleth of its existence, prosperity and prospects. In the exercise of these peculiar privileges the North of this country has used its type and its tongue offensively against the South. Neither was the South backward in the work of retaliation on the same principle. But the Anglo-Saxon, whether of the South or of the North, would see the whole world set in a blaze rather than put limits to the

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freedom of the press or the unbridled license of the tongue, except when the laws interpose for the protection of public authority or individual rights of character and property. At the commencement of our National institution as an independent State, slavery, for instance, was found to exist, almost universally, in the North as well as in the South. The word itself was not used in any of the paragraphs found in the Magna Charta of our Government. The slave-trade from the Western Coast of Africa had been encouraged by the subjects and the Government of Great Britain. The Government of England did not hesitate to affix its veto on some of the enactments made by the recognized local authorities of the Colonies for the diminution of the slave-trade. It would appear that from this trade, so abominable in its primary origin, there were certain emoluments accruing to the treasury of the mother country. And these emoluments were looked to as a source of revenue, just as some countries in Europe, in their sovereign capacity, monopolize the largest portion of profits resulting from commerce in salt and tobacco. After the Revolution, slavery was gradually dispensed with in all the Northern States. Whether this was done from what would now appear a sense of humanity, or from motives of domestic or political lucre, it will be for you, as for me, a private right to determine, each according to his own opinion. But slavery was a social element, recognized in all the States at the period of the Revolution. So far the changes that have supervened in reference to slavery have been all in the North, and the South is to-day as to this matter in statu quo just as she was at the period of the Declaration of Independence. The Northern States, in the exercise of their acknowledged right, repudiated slavery within their own borders. The Southern States, in their equal exercise of theirs, have done just the reverse. The North, unrepenting of many sins of its own, has exhibited great remorse for the sins of its neighbors. A portion of its inhabitants talk in a certain style, not only of this subject, but of a great many others about national sins which, according to its solution of Pagan ethics or of Christian duty, every human being is bound to correct. Yet the biggest sin in our day known to the North is not what occurs in its own immediate neighborhood or State, but the monster iniquity of the South, which, between you and me, and as the world goes, might have been permitted to manage its own affairs in its own way,

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so that its acts should be found either in harmony with, or not in violation of, the Constitution of the United States. I am an advocate for the sovereignty of every State in the Union within the limits recognized and approved of by its own representative authority when the Constitution was agreed upon. As a consequence I hold that South Carolina has no State right to interfere with the internal affairs of Massachusetts. And as a further consequence, that Massachusetts has no right to interfere with South Carolina, or its domestic and civil affairs, as one of the sovereign States of this now threatened Union. But the Constitution having been adopted by the common consent of all the sovereign parties engaged in the frame-work and approval thereof, I maintain that no State has a right to secede, except in the manner provided for in the document itself. The revolt of the Colonies against the authority of Great Britain is another thing. If England had extended to these Colonies the common rights and privileges nominally secured by the British Constitution, we have high authority for believing that the Colonies would not have gone, at least when they did, into rebellion. Indeed, it might be asserted and maintained that it was not the Americans, but the British Ministry and Government, that supplied legitimate reasons for the American Revolution. In the present case it would be difficult by parity of reasoning, to justify the grounds on which the South have acted. I think a few remarks will satisfy you of the correctness of this statement. You say that for many years the South has proclaimed its dissatisfaction, and announced its determined purpose of Secession if certain complaints should not be attended to and their causes redressed; that the South was always in earnest, and the North would never believe in their sincerity or their predictions. This may be so; but it gives me an occasion to remark that the National Government, as such, had no special reason for the Secession of the South at this time more than there was ten or fifteen years ago. The Personal Liberty bill was unconstitutional in the few States which adopted it. New York was too wise and too patriotic to be caught in that trap. The so-called Personal Liberty bill was never adopted, so far as documents are evidence, either directly or indirectly, by the Government at Washington. Indeed I am not aware of any statute passed by the National authority which could give the South

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additional reasons for discontent or complaint within the last ten or fifteen years. I have thus alluded to the unofficial causes for Southern resentment. Even in your own letter the cause alleged is the election of the Chief Magistrate. This does not seem at all sufficient to warrant the course which the South has adopted. The Government originally agreed upon by all the States has lasted during a period of between seventy and eighty years. During this time its executive administration was enjoyed by the South for fifty-two years. No Northern President has ever been re-elected. Washington, Jefferson, Madison, Monroe and Jackson, have each discharged that office for a term of eight years. The conclusion is, then, that out of seventy or eighty years of the administration of our Government, fifty-two years have enured to our patriotic men of the South. This fact involves the potentialities and powers of the Government as having been exercised by supremacy on the part of the South. The Navy, the Army, the incumbents of the Supreme Court, were not ignorant of or insensible to this fact. Now I put it to your candor to say whether, after such a history of the administration of our country, the South might not have tolerated the occupancy of the Presidential chair by the present incumbent, who, with his Northern predecessors in that office, could hardly expect to survive officially the ordinary four years of a Northern Supreme Magistrate? You say that President Lincoln was elected by Black Republicans in the North. I am inclined to think that he was indirectly or negatively elected by Democrats North and South. The Black Republicans presented one candidate, and in order to defeat his election, the Democrats, North and South, presented three. If the latter had selected only one candidate, it is probable that the Black Republicans, as you call them, would have been found as minus hab entes. But when the Democrats distributed their votes, apparently with a view of rendering them inefficient, then, of course, the one man of choice was elected over the three candidates and competitors that had been placed in rivalship with each other, and in the aggregate all against him alone. That he was constitutionally elected under these circumstances is not denied either in the South or in the North. Then, if so elected, he is the Chief Magistrate of all the United States of America, and, by his very oath of office, is bound

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by their own common consent to see that neither Maine, on the northeast, nor Texas, on the southwest, shall be permitted to overthrow the original National compact agreed upon in the Constitution of this Government. If States shall be allowed, in face of that National Constitution, to kick over the traces of a common union, as agreed upon in the primitive days of our Government, then it is difficult to see why counties and townships and villages may not be at liberty to do the same thing just as often as the freak or fancy to do so may or shall have come upon them. There appears to be an idea in the South that the National Government and the people of the North are determined to conquer and subjugate them. This, I think, is a great mistake. First, in the sterner sense of the word "conquer," it seems to me utterly impossible; and, if possible, I think it would be undesirable and injurious both to the North and to the South. Unless I have been deceived by statements considered reliable, I would say that the mind of the North looks only to the purpose of bringing back the Seceded States to their organic condition — ante bellum. There remains now scarcely a hope of peace, and the issue is apparently that the North must triumph on the field of Mars, or that the South shall prove itself victorious on the same bloody arena. But, after all, we must not despair in reference to a coming peace. The idea of an armistice, even for six months, is now utterly hopeless, but I think that the North, if the chance were presented, would be as willing to enter on terms of peace as the South itself. Still, I am bound to say, under deep conviction of the truth, that, of both sections unhappily launched on the swelling torrent of our domestic troubles, the North will be the latter to sink or swim in the sanguinary tide on which both are now afloat. You make mention of the Commissioners sent to Washington at an early period of the struggle, with kind, fair and liberal propositions, as you consider them, for the arrangement of the whole difficulty. Before reaching the point of settlement there would be found a vast amount of principle involved. Commissioners should have some recognized authority to warrant them in attempting to discharge the duties of their official office. Those of the South, in the circumstances, so far as I can see, had no authority whatever. The people of your region (when I say people, of course I mean the voters, as commonly understood in this country,) had scarcely

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been consulted on this vital question. Their Government, so called, was unrecognized by any civil principality on the face of the earth. Commissioners presented themselves before the public servants of a Government universally recognized by all nations. The terms of these Southern Commissioners were more of dictation than of petition. The Government at Washington had to choose one or another of two alternatives. The President and his Cabinet might have chosen the alternative of perjury, and acceded to the demands of those Commissioners, or they might, as they surely did, decline every official intercourse with them. They chose the latter course. And now it only remains to see whether the Government is what it calls itself — the Government of the United States, or merely the Government of a fraction thereof — and that fraction measured out to them by Southern Commissioners who could not show a legitimate title for the commission which they professed to execute. You think it hard and unnatural that foreigners and Catholics should be deluded into the service of the recognized National Government in order to be immolated in the front of battles and made food of for Southern powder. If this end were a deliberate policy in the North, I should scout and despise it. I admit and maintain that foreigners now naturalized, whether Catholics or not, ought to bear their relative burden in defence of the only country on those shores which they have recognized and which has recognized them, as citizens of the United States. Mr. Russell, the correspondent of the London Times, reports a conversation which he had with "a very intelligent Southern gentleman, formerly editor of a newspaper," who stated, on behalf of the Confederacy — "Well, sir, when things are settled, we'll just take the law into our own hands. Not a man shall have a vote unless he's American born, and by degrees we'll get rid of these men who disgrace us." Mr. Russell inquired, "Are not many of your regiments composed of Germans and Irish, of foreigners, in fact?" "Yes, sir." This very "intelligent Southern gentleman, formerly editor of a newspaper," is certainly no true representative of the gentleman whom it was my good fortune and pleasure to meet whenever I traveled in the South. But no matter. If the Statement be true, it only shows that for Irish and foreigners in general, the South is nearly as unfriendly as the North can be. It proves further, that so

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far as the Irish are concerned, the hereditary calamities of their native land follow them up wherever they go, in one form or another. Here, and now, they are called upon by both sides to fight in the battles of the country; and no matter who triumphs, they need not look for large expressions of thanks or gratitude from either side. Still, whether in peace or war, take them for all in all, they are as true to the country as if they had been born on its once free and happy soil. Pardon me this digression, and let me return to the other sentiment touching the hope of a prospective peace. That word "peace" is becoming more or less familiar here in the North. In a crisis like this it is not, in my opinion, expressive of a sound principle or a safe policy. Its meaning changes the basis and the issues of this melancholy war. If changed, it will be a war, not between the South and the North, geographically considered, but a war between the two great political parties that divide the country. Instead of this partisan hostility, wise patriots should rival each other in restoring or preserving the Union as one nation, its prosperity, and the protection and happiness of its entire people, in all their legitimate rights. But all this is to be judged of by others, and the opinion of any individual is of the smallest account. If a word of mine could have the slightest influence, I would suggest that, even while the war is going on, there might be a Convention of the Seceded States, held within their own borders. It might be one representative appointed from each of those States, by the Governor, to meet and examine the whole case as it now stands, and arrange and draw up a report of their grievances, or what they consider such, and report to their several Governors the result of their deliberations, and the conclusions at which they shall have arrived. The same process might be adopted in the States that have not seceded, and similar reports be made to their respective Governors. This would be only a preparatory measure for something more important. If a better feeling, or understanding, could be even partially arrived at, a future Convention of all the States by their representatives would have something to act upon. The difficulties might be investigated and provided for; the Constitution might be revised by general consent, and if the platform — sufficiently ample for 3,000,000 at the period when the Constitution was formed — is found to be neither of breadth or strength to support a population

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of 33,000,000, wise and patriotic men might suggest, according to the rules prescribed in the original document, the improvements which the actual condition of the country would seem to require. The Constitution itself, in its letter and spirit, is, no doubt, the same as it was when first framed; but everything around has been undergoing a change for nearly eighty years. For a peace of that kind I would be a very sincere, if not an influential, advocate. But to expect that a peace will spring up by the advocacy of individuals in the midst of the din and clash of arms, amidst the mutually alienated feelings of the people, and the widening of the breach which has now separated them, would be, in my opinion, hoping against hope. Still, we must trust that the Almighty will overrule and direct the final issues of this lamentable contest. I had no intention to write so long a response to your kind letter. Enough, and perhaps more than enough, has been said, and it only remains for me to add that the Catholic faith and Catholic charity which unites us in the spiritual order shall remain unbroken by the booming of cannon along the lines that unfortunately separate a great and once prosperous community into two hostile portions, each arrayed in military strife against the other. I have the honor to remain, as ever, Your obedient serv't and Brother in Christ, JOHN, Archbishop of New York. Rt. Rev. P. N. Lynch, Bishop of Charleston.

Pamphlet 6 Orestes Augustus Brownson, Brownson on the Rebellion. St. Louis, [1861] [By the fall of 1861, the question of emancipation of the slaves of those disloyal to the Union became a vital issue. General John C. Frémont in Missouri embarrassed President Lincoln at the end of August when he proclaimed that the slaves of all those resisting the United States were freemen. Lincoln, seeking to retain the loyalty of the restless citizens of the border slave states, repudiated the proclamation. In these same weeks, Orestes A. Brownson was abandoning his long-standing aversion to abolitionism to insist that the Federal Union be reconstructed only on the basis of emancipation. "The Union is and must be sacred to liberty," he declared, ". . . and we must be able to adopt the proud boast of our Mother Country, 'The slave that touches our soil is free.'" Brownson (1803-1876) had come to Catholicism in 1844 only after long leadership in liberal religious and transcendentalist circles; thereafter he had voiced an emphatic conservatism in Brownson s Quarterly Review. Slavery, he asserted in 1851, was "the best practical condition of the negro race." He voted for Buchanan in 1856, but by i860 had moved reluctantly to the support of Lincoln, although he still did not wish to tamper with slavery. His spectacular emergence in 1861 as a militant brought him disfavor among the Catholic hierarchy and many communicants, but it restored friendships broken since his conversion and made him for the duration of the war one of the national voices among the Radical Republicans. He argued repeatedly that the ending of slavery was the most effective means of unifying the North and smashing the rebellion. "It was not liberty for the black race," he wrote in after years, "so much as for the white race that we wished to secure." 1 ]

THE reasons assigned for not being able to review the excellent work of Pere Valroger, apply with equal force against our ability to 1 [Arthur M. Schlesinger, Jr., Orestes A. Brownson, A Pilgrim's Progress (Boston, 1939); Fredrickson, The Inner Civil War, 44-45, 1 1 4 - 1 1 5 ; J. J. Hughes, "The Abolition Views of Brownson Overthrown," Metropolitan Record, reprinted in New York Herald, October 8, 1861.]

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review, as its merits deserve, the admirable work, by our highly esteemed friend, M. Augustin Cochin, on The Abolition of Slavery, which he has recently published, and of which he has done us the honor to send us a copy. We have, however, so far violated the strict injunctions of our physician as to look at a few of its pages, enough to enable us to judge of its general character, and to pronounce it a work of rare merit. The first volume gives the result of the abolition of slavery by France and England in their Colonies, and establishes the fact that it has been effected without ruin and without disturbance. A storm, an insect, a year of drought would, in a material point of view, have caused more evil; while, in a moral and religious point of view, the good has been immense, although few precautions had been taken to secure it. The second volume is devoted to the United States, Holland, Brazil, the Spanish and Portugese Colonies, the slave trade, Africa, and the influence of Christianity on slavery. We have noticed a few trifling inaccuracies in regard to our own country. The author reckons Wisconsin among the Slave States; but we are happy to say that Wisconsin is not only a Free State, but one of the most decided anti-slavery States in the Union. He says New York was originally settled by Germans — it was originally settled by the Dutch from Holland, who are not usually called Germans by us, though of the Germanic family. Maryland was not colonized by Irish Catholics, but by English Catholics and Protestants. George Calvert had an Irish title, but was himself an Englishman. These errors, however, are very slight, and detract nothing from the real value of the work. As far as we have been able to read it, we have found the views of the author very just, philanthropic, liberal, and truly Christian. Two abler or more intensely interesting volumes on the subject of the abolition of slavery, it has not been our good fortune to meet; and they are creditable in the highest degree to the ability, industry, and noble sentiments of their distinguished author. The question of the abolition of slavery is becoming with us a practical question in a sense it has never before been. The Rebellion of the Slave States, which has for its object, not so much the dissolution of the Union, or the separation of the South from the North, as the reconstruction of the Union on the basis of slavery, or, as the Vice-President of the Confederate States has it, with "slavery as its cornerstone," and therefore the extension of slavery over the

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whole country, cannot fail to force this question upon the grave attention of every citizen of the loyal States, who loves his country, and believes in the practicability of freedom. The Slave States, by their rebellion and war on the Union, are compelling us to regard this question as one which must soon be practically met, and are forcing all loyal citizens to make their election between the preservation of the Union and the preservation of slavery. This, whatever the Federal administration, whatever individuals or parties in the Free States, with, or without Southern or pro-slavery proclivities, may wish or desire, is pretty soon to be the inevitable issue of the terrible struggle in which our glorious, and hitherto peaceful Republic is now engaged. Perhaps, at the moment we write, the last of August, a majority of the people of the Free States may not only shrink from this issue, but even honestly believe it possible to avert it altogether. The bare suggestion of the abolition of slavery may shock, perhaps, enrage them; but events march, and men who mean to be successful, or not to be left behind, must march with them. Another disaster, like that of Bull Run, or another unsuccessful action, like that of Wilson's Creek, where the brave and noblehearted Lyon fell, a martyr to the cause of his country, and a victim to the failure of his government to send him timely aid, will do much to change the feelings and convictions of the loyal citizens of the Free States, and, perhaps, force them to give up the last hope or thought of preserving both the Union and the institution of slavery. It requires, however chary our public men may be even of whispering it, no extraordinary sagacity or foresight to perceive that, if the present war is to be continued, and the integrity of the nation restored and maintained, the war can hardly fail to become a war of liberation, or that the Northern blood and treasure, which it demands for its successful prosecution, will demand in return, as their indemnification, the emancipation of the slave, and the universal adoption for the South as well as the North of our Free Labor System. We need not say, for the fact is well known to our readers, that no man, according to his ability and opportunity, has, since April, 1838, more strenuously opposed the abolition movement in the Free States than we have; not because we loved slavery, or had any sympathy with that hateful institution, but because we loved the Constitution of the Union, and because we believed that liberty at

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home and throughout the world was far more interested in preserving the union of these States under the Federal constitution, than in abolishing slavery as it existed in the Southern section of our common country. But we believe, and always have believed, that liberty, the cause of free institutions, the hopes of philanthropists and Christians, both at home and abroad, are more interested in preserving the Union and the integrity of the nation, than they are or can be in maintaining negro-slavery. If we have opposed abolition heretofore because we would preserve the Union, we must, a fortiori, oppose slavery whenever, in our judgment, its continuance becomes incompatible with the maintenance of the Union, or of our nation as a free republican state. Certainly we said in the article on The Great Rebellion in our last Review, the North has not taken up arms for the destruction of negro-slavery, but for the maintenance of the Federal government, the enforcement of the laws, and the preservation of the Union. This is true. The liberation of the slave is not the purpose and end of the war in which we are now engaged. The war is a war against rebellion, an unprovoked and wicked rebellion, engaged in by the Rebels for the purpose of making this a great Slaveholding Republic, in which the labor of the country shall be performed by slaves, either black or white; and if, to defeat the Rebellion, the destruction of slavery be rendered necessary and be actually effected, it will change nothing in the character or purpose of the war. It will have been necessitated by the Rebellion, and the Rebels will have only themselves to thank for the destruction or abolition they force us to adopt in defense of liberty, the Union, and the authority of the government. The real question now before the loyal States is not, whether the Rebellion shall be suppressed by force of arms, or a peaceful division of the country into two separate and independent Republics submitted to. Any one who has any knowledge of the plans and purposes of the Rebels, knows well, that the division of the territory of the Union into two independent Republics is far short of what they are aiming at. The leaders of the Rebellion, they who planned it, they who have stirred it up, and armed it against the Union, have worked themselves into the conviction, that slavery is not to be looked upon as an evil, under certain circumstances to be tolerated, but as a good to be desired, which religion and humanity require not only

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to be perpetuated, but extended the farthest possible. Their doctrine is, that liberty is not practicable for a whole people, that it is practicable only for a class or a race; and that republicanism can subsist and be practically beneficial, only where the laboring class is deprived of all political and civil rights, and reduced to slavery. Their plan, their purpose is, the reconstruction of the Federal government in accordance with this theory, not merely to cut themselves loose from all companionship with the non-Slaveholding States of the North and North-West. They propose to extend slavery over the whole Union, and, in those States where negroes cannot be profitably employed as laborers, to reduce, perhaps gradually, but ultimately and effectually, to the condition of slaves, the present class of free white laborers, who in the Free States are, to a great extent, Irish and Germans, by birth or immediate descent. The reconstruction of the Union on the basis of slavery is the real aim of the chiefs of the Southern Rebellion, which reconstruction would give them a government similar in its essential features to that of ancient pagan Rome, and a government, if the States held together, prepared for future conquest. The Union reconstructed, it could proceed to the conquest of Mexico and Central America, and reduce their negro and colored populations to slavery, which would be counted their Americanization. This done, it could proceed, beginning with Cuba, to the annexation, one after another, of the West India Islands. It then could extend its power over the whole continent of South America, and threaten an advance upon Eastern Asia, and the annexation of all the cotton-producing countries and tropical regions of the globe, and through the monopoly of cotton, rice, and tropical productions in general, to obtain the control of the commerce and credit of all nations. Such, to a greater or less extent, is the dream which Southern statesmen have indulged, and which they have taken the first step toward realizing. In its full extent no sane man supposes the dream practicable; but its practicability, up to a certain point, has been demonstrated by the success which has hitherto attended the Rebellion, for, up to the present, successful it undeniably has been. The Confederates have brought into the field a more effective, if not a larger force, than the Federal government has thus far brought against them; and, from the Potomac to the Mississippi, they hold the strategic lines,

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and can be met by the Federal forces only at great disadvantage. As yet not one of those lines has been wrested from them. Now, suppose we adopt the policy urged upon us by the peacemakers, traitors, and cowards of the loyal States, consent to a peaceful division of the United States, and recognize the Southern Confederacy as a separate and independent nation, what would be the result? Two comparatively equal independent Republics, existing side by side? Not at all. Spread out the map of the United States before you, and see which Republic would have the advantage in territory, soil, climate, productions, and all the sources of national wealth, strength, and material greatness. You would give to the Southern Republic full three-fourths of the whole territory of the Union; for the South would consent to no division now, that did not include the States of Delaware, Maryland, Kentucky, Missouri, and all the territory South of the line running due west from the northwest angle of Missouri to the Pacific. You would give up to the South, to what would then be a foreign power, the whole Gulf coast, and the whole Atlantic coast, except the narrow strip from the Penobscot to the Delaware. You would leave the North a majority of the present population of the country, and nominally the superiority in wealth, it is true: but as the present superior numbers and wealth of the North depend chiefly on our superiority in commerce and manufactures, their superiority could not be long maintained. The Southern Republic, producing raw materials consumed chiefly in Europe, would be a great exporting Republic, and would naturally, in its policy, favor exports to European markets. From those markets where it disposes of its raw materials, it could, by means of a lower tariff on imports than the Northern Republic could afford to adopt, more easily and cheaply supply its own demand for imports than it could from our Northern markets. It would thus drive our manufactures from its markets, and, by importing from abroad for itself, greatly dimmish our manufactures, and at the same time both our foreign and domestic trade. In addition, we should not only lose our Southern market for our imports and manufactures, but should hardly be able to keep our own. Imports would seek Southern ports, and, in spite of any possible cordon of custom-houses and customhouse officers, would find their way into all the border States of the Northern Republic and up the Mississippi and Ohio into the great

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States of the West and the North-West, to the most serious detriment of our own trade and manufactures, and consequently to the retention of our relative superiority in wealth and population. In spite of our industry and our enterprise, we should soon find ourselves in a state far inferior in wealth and numbers to our Southern neighbor. Moreover, the great agricultural States of the Mississippi Valley, finding the natural outlets for their productions held by a foreign power, and themselves unable to wrest them from it, would be compelled by their own interests to secede from the Northern Republic, and to join the Southern Confederacy. The secession of these, which would be followed by that of all the States west of the Rocky Mountains, would necessarily compel the secession of New York, New Jersey and Pennsylvania, and their annexation to the same Confederacy. This would reduce the Northern Republic to the New England States; two of which, Connecticut and Rhode Island, would, most likely, follow New York, and there would remain for the Northern Republic only the State of Massachusetts, Vermont, New Hampshire, and Maine, which could escape absorption in the Confederacy only by its refusal to accept them, or by joining with the Canadas and the other British Provinces, and coming again under the British crown. Such would be the inevitable result of the proposed peaceful division of the United States, and the formation of two separate and independent Republics out of their territory, if the Southern Confederacy held together; and such is substantially the plan of reconstruction contemplated by the Southern statesmen, as is evident from their leaving their Confederacy open to the accession of new States; as was avowed in this city, last December by Mr. Senator Benjamin, now the Attorney-General of the Confederate States; and as asserted openly by Southern sympathizers everywhere at the North. All this is notorious, and is only what any man accustomed to reason on such subjects, and familiar with the geography, soil, and productions of the Union, sees must and would inevitably result from the policy recommended by our peace-men, cowards, and traitors. But peace, even on as favorable terms as we have supposed, cannot now be made. Six months ago, perhaps it might have been; but now, flushed with their recent successes, in possession of the principal strategic lines, and able to prosecute the war with more vigor

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than we have yet shown, the Rebels will entertain no question of peace short of our subjugation, or, what is the same thing, disbandment of our armies and quiet submission to the principles and theory on which their Confederacy is founded. Look at the question as we will, we have now no alternative but to subdue the Rebels or be subjugated by them. We must either depose that Confederacy, and enforce the authority of the Federal Government over all the rebellious States, or it will enforce its authority over the Free States, and impose upon them its System of Slave Labor. If it enforces its authority over us, there may still, perhaps, be liberty for a class or caste, but our laboring classes will no longer be freemen; they will be placed on a level with the negro slave on a Southern plantation. For the Christian Commonwealth founded by our fathers, toiled for, and bled for, we shall have re-established a Pagan Republic more hostile to the rights of man and the rights of nations, than was ever pagan Greece or pagan Rome. We put it to our Christian countrymen, if such is the Commonwealth their fathers fought and suffered through the long Seven-Years War of the Revolution to establish, and if they can be contented to let the hopes of liberty in the New World set in a night of blackness and despair. We know very well that we have fallen far below the virtues that founded this Republic, and gained this New World to civilization; we know that a long career of uninterrupted prosperity and unbounded luxury has done much to corrupt us; we know that the labor in one-half of the Republic being performed by slaves, and a greater part in the other half performed by emigrants from foreign countries, has caused a lamentable forgetfulness of those principles of liberty so dear to our fathers, and produced amongst us a laxity of principle, an indifference to law, a disregard for personal rights and personal independence, without which no republic can long subsist and prosper; but we are not yet willing to believe that we have fallen so low, become so corrupt, so indifferent to liberty, or so dead to all moral considerations, as to be prepared to submit, for the sake of gain, or of preserving our manufactures, without a struggle to the indignities the Southern Confederacy would heap upon us, or to the adoption of the base and inhuman principle on which that Confederacy is avowedly founded. If we retain anything of our manhood, or any memory of the Christian virtues of our ancestors, we can never submit to be slaves ourselves, or take part

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in reducing any portion or class of our fellow-men to slavery. If there is any virtue left in us, we must resolve that we will be free ourselves, and do all in our power to secure freedom to all other men, whether white or black, yellow or copper-colored. If we do not, we are indeed "degenerate sons of noble sires," and deserve, as we shall receive, the scorn and derision of the whole world. Political and party leaders, greedy for the "pickings and stealings" of office, who are innocent of ever having entertained a statesmanlike idea or a moral conception, may cry, like the false prophets whom the Lord, in Holy Scripture, rebukes, "Peace, peace," and seek to embarrass the government and give aid and comfort to its enemies; but we hope there is still virtue enough left in the people of the loyal States to estimate them at their true value, and to treat with indignation and scorn their counsels. Whatever the result of the contest, the vocation of these leaders is gone; and the best use to which you can put a man who now cries out for "peace," for "compromise," for "submission," and charges the Government with having provoked an "unholy and unnecessary" war, is to treat him as loyal Union men in the South are treated by the Confederates. Such men, whatever their pretensions, are really traitors, and deserve a traitor's doom; or, if not traitors, they are idiots and lunatics, and should be provided for in asylums. It is no time to mince our words, or to study out honeyed phrases; we must call things by their right names, and treat all who are not for us, as against us. We have something more than even the Constitution and laws to maintain; the very existence of the nation is at stake; and, as no means are scrupled at to destroy it, we have the right to use all the means which the law of self-preservation renders necessary or expedient. We wish our readers and the public at large to understand that we are in war, and to let it get through their heads that the war which the Rebellion has forced upon us, is no mimic war, is no child's play, and is not to be conducted to a successful issue on the principle of treating the Rebels as friends, giving them every advantage, and doing them no harm. They are in downright earnest, and are putting forth all their strength, and doing their best to subjugate us; and we also must be in downright earnest, put forth all our strength, and do our best to subjugate them. War cannot be conducted on peace principles, or successfully conducted by men

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who do not enter into it with spirit, resolution and energy. We have no disposition to censure the civil or military authorities of our country; they have labored under great embarrassments, and have had no ordinary difficulties to contend with; but we must be excused, if we say that as yet they have given us little evidence of their being in earnest, or of their believing in the reality and important character of the war. Up to the disaster of Bull Run, military operations seem to have been conducted in subordination to the projects of politicians and the especial benefit of contractors. The war was apparently treated as a secondary affair, a mere bagatelle, or a toy for children to amuse themselves with; in scarcely an instance was it treated as a grave affair, demanding for its prosecution the whole strength and energy of the country. Some doubted if the South would really fight, and it seemed to many, that all we needed to rout their armies, suppress rebellion, and re-establish over the seceded States the authority of the Federal Government, was a large number of regiments having no existence except on paper or in the imagination of those who wished to sport the epaulettes of a Colonel. This delusion has passed away. But still, at the time we are writing, it has hardly got through our heads that we are really engaged in war, and a war involving the very life or death of the nation. The mass of those who really believe we are in war, still think the war is one that may be carried on without any serious detriment to our ordinary avocations or pleasures, and one not likely to come home to our own bosoms and business. Very few of us see that everything we hold dear in this world is at stake, and that we have to struggle not only to defeat a foreign enemy, but to defend our own firesides and altars, our own wives and children, and our own personal liberty. Country gone, all is gone; and unless we become more in earnest than we have hitherto been, and put forth a civil and military force and energy which we have not yet displayed, nor judged it necessary to display, our country cannot be preserved. We cheerfully concede that much allowance is to be made for the Administration, in the novel and unexpected position in which it has been placed. With no preparation to meet a rebellion on a formidable scale, with doubts as to how far the patriotism of the loyal States could be relied on, with the Army and Navy filled with traitors, or with officers at best indifferent to the cause of the Union, surrounded by weak, timid, and corrupt politicians, and the im-

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portant, though subaltern, offices of the various departments of the civil government filled with men desiring success to the Rebels, and ready to use all the opportunities afforded by their position to secure that success, the Administration may be excused for having hesitated, before feeling the public pulse, to adopt the bold, energetic and decisive measures the crisis demanded. It was embarrassed by the legacy left it by its predecessor, and also by the fears, timidities, hopes and advice of the Union men in the Border States, who begged it not to be precipitate, lest it should plunge those States also into open secession. This fear of driving the Border States into secession has been from the first the bugbear of the Administration, and its chief embarrassment. It prevented it from taking, at the outset, those bold and decisive measures which would have forestalled the Rebels, and confined the Rebellion to South Carolina, Georgia and the Gulf States. Its efforts since to organize and strengthen a Union party in Western Virginia and Eastern Tennessee, have impeded, rather than aided, its military operations, and lost it a campaign, without gaining it any real additional strength. There is only one way of dealing with Rebels; it is for the Government to be prompt, to strike quick and to strike hard. If it hesitates, if it temporizes, if it seeks to conciliate, or shows that it fears to strike lest the blow recoil upon its own head, it is only by a miracle that it can be saved. Its policy will be set down either to conscious weakness or to conscious wrong, and the rebels not only gain time, but what is even more important to them, they gain confidence in their own cause, which more than doubles their forces, while the friends of the Government are disheartened, rendered timid, if not alienated. A bold, energetic man at the head of the Government, one year ago, would have crushed out rebellion before it could really have come to a head even in South Carolina. A man able to create public opinion, not merely to follow it, at the head of the Government last March, would have confined the rebellion within the limits it then had, and, long before this, would have reduced Florida and Louisiana to their allegiance, and thus have broken the back-bone of rebellion, and prepared the way for its speedy and utter annihilation. Hesitation and delay in dealing with rebellion, is the worst policy possible. That its dilatory and timid policy was on the part of the Govern-

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ment, a mistake, a blunder, no one can reasonably doubt. But it would be a mistake, a blunder no less fatal, for the friends of the Union to blazon it forth so as to weaken the confidence of the people in the Administration, and diminish its power for good. The President is worthy of all confidence for his honesty, integrity, and patriotism; and, if he will rid himself of the embarrassment of political jobbers and stricksters, dismiss and visit with adequate punishment all secessionists, traitors, or lukewarm patriots in the employment of the Government, and put honest and capable men in their places, men who know their duty, and have the courage to perform it, who love their country and are ready, if need be, to sacrifice themselves for it, he may retrieve the past, recover all the ground that has been lost, conduct the war to a successful issue, and, if not precisely the man best fitted to the crisis, yet stand in American history second only to Washington, if indeed second even to Washington himself. Never had a President of the United States so glorious an opportunity to prove himself a man, a statesman, a true civil hero. He has, we are sure, the disposition, let him prove that he has the courage and ability not merely to follow public opinion, not merely to follow the people, but to go before them, and, by kindling up a resistless enthusiasm in them, lead them on to victory. The American people, especially of the North, are a susceptible people, and can feel and respond to the force of genius as readily and as heartily as any other people on the face of the globe. No people in the world are susceptible of a deeper or more abiding enthusiasm; no people better appreciate the value of a good battlecry; and it has been a mistake on the part of the Administration, not to have better appreciated their real character. It has failed to give them that battle-cry. It has been too cold, too prosaic, and has pronounced no spirit-stirring word. Instead of kindling up the enthusiasm of the people, it has looked to the people to quicken its own. Instead of inspiring them, it has waited for them to inspire it. This has been a grave mistake. Men placed at the head of affairs, are placed there to lead, not to follow; to give an impulse to the people, not to receive it from the people. If the Administration has life and energy, if it has ability and genius, let it no longer hesitate to use them, but put them forth in that free, bold, and energetic manner which will carry the people with them, and command victory.

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We insist the more earnestly on this, because the mass of our people have so long been accustomed to sympathize with rebels, to aid and encourage revolutionists abroad, and to visit with their severest denunciations the acts of the legitimate government to suppress insurrection, to put down revolutionists, and vindicate its authority, that they cannot be rallied with much enthusiasm under the simple banner of Law and Order. Their first emotion is to sympathize with rebellion, wherever it breaks out, even though against their own government. They hold as a principle, as that on which their very national independence is based, the "sacred right" of revolution; because they generally take it for granted that all rebels and revolutionists are the party of liberty, warring against despotism, and for the rights of man. Would you rally them and render them invincible against the foe? You must give them another battle-cry than that of "Law and Order," or you will not stir their heart, that mighty American heart which conquered this country from the savage and the forest, proclaimed and won its independence, constituted the Union, and made the American nation one of the great nations of the earth. It is not for us, even if we were able, to give that battle-cry; it must be given by genius in authority, and fall either from the lips of the President, or the Commanderin-Chief of our armies. Neither may as yet be prepared to utter it; but, if this nation has a future, if its destiny is, as we have hitherto boasted, to prove what man may be when and where he has the liberty to be himself, uttered by one or the other it ere long will be, and in tones that will ring out through the whole Union, and through the whole civilized world now anxiously listening to hear it. The Union is and must be sacred to liberty. Here man must be man, nothing more, and nothing less. Slaves must not breathe our atmosphere; and we must be able to adopt the proud boast of our Mother Country, "The slave that touches our soil is free." This is the destiny of this New World, if destiny it have, — the destiny our fathers toiled for, fought for, bled for, and to this we their children must swear to be faithful, or die to the last man. We have spoken thus far as the American, the patriot, and the devoted defender of republican institutions; but we must be permitted also to speak as the Catholic publicist. We have, from the first, maintained, and with the fullest approbation of the Catholic authorities in this country, that Catholic morality enjoins upon all

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Catholics, whatever their rank or dignity, to be loyal to the legitimate government of their country, and to be ready to defend it, when called upon, at the sacrifice of their property, and even of their lives. That the Federal government is the legitimate government of the American nation, no Catholic can reasonably doubt. We may, as Catholics, lawfully resist tyranny or usurpation, but we cannot conspire to overthrow a legitimate government, which has not transcended its constitutional powers, or resist its authority without failing not only in our civil, but in our Catholic duty. The Federal government is no usurpation; it is a legitimate government; and it has never lost its legitimacy by any act of tyranny or oppression. No such act has been or can be pretended. Rebellion against it, therefore, is not only a crime, but a sin. The principle here asserted is that which we defended for years against the revolutionists in Europe, and it has been on the ground that such is the teaching of the Catholic religion, that we have repelled with indignation the charge brought against us by Know-Nothings, that Catholics are not and cannot be loyal American citizens. We have labored, in opposition to the Know-Nothings, to show that Catholics are bound by their very religion to be loyal; and we have ventured to assert that, if the Republic were threatened, or an attempt made to dismember the Union, Catholics would be the first to rush to its rescue, and the last to desert it. The assertion we ventured has not been entirely justified. The conduct of our Catholic population, especially that of their leaders, has not wholly answered our expectations. Of the twelve journals in the English language, published in this country, and professedly devoted to Catholic interests, we can name only The Catholic, published at Pittsburg, and the Tablet, in this city, as decidedly loyal. The Telegraph and Advocate, published at Cincinnati, is occasionally loyal, and so also, perhaps, is the Buffalo Sentinel. The Metropolitan Record was, when last we read it, striving hard to be on both sides. All the rest are really secession sheets, and exert, whether avowedly or not, all their influence against the Federal government, and in favor of that of the Southern Confederacy; for we count every journal favorable to the Secessionists, that opposes the war, and clamors for peace. Of the clergy, the greater part of whom have been born or educated abroad, a large majority have Southern sympathies, and a portion of them, a small minority, we

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hope, are decidedly disloyal. The Bishop of Charleston, South Carolina, sang, we have been told, the Te Deum over the fall of Sumpter. Much allowance, no doubt, must be made for bishops and priests residing in rebel States, and it would be too much to ask them to proclaim on all occasions, and under all circumstances, Union sentiments; their silence may often be excusable, and sometimes justifiable. Still they are bound by their religion to instruct their own people in their duty of fidelity to the government of the Union, and they have and can have no authority under that religion, or in consonance with it, to hold disloyal sentiments, denounce the loyal States, and sing Te Deums over the defeats of the government to which they owe allegiance. The Bishops both of Charleston and of Richmond appear to have done this; and, if they have done so, no reverence or respect for their Episcopal character should be allowed to excuse their treason, or make us hesitate to charge them with violating their Catholic duty, and doing all in their power to justify the Know-Nothings in their grave charges against the loyalty of Catholics. Catholic morality is as obligatory on priests and bishops as it is on laymen, and from its obligations they can neither absolve themselves, nor be absolved, even by the Pope. The right of the Supreme Pontiff to absolve from their oath of allegiance the subjects of a prince who, according to the law of God and the constitution of the realm or empire, has forfeited his right to reign, we have uniformly maintained, and still hold; but we have never maintained, and cannot maintain, that he has the right to absolve from their allegiance the subjects of a prince who holds his power legitimately, and has done nothing to forfeit his trusts; and certainly we cannot concede to simple bishops and priests a power which we do not and cannot concede to the Supreme Pontiff himself. We do not, in such a case, deny the absolving power to their chief in order to claim it for them. But we are gratified to know that the Catholic people, moved by their loyal and patriotic instincts, are nobly redeeming their Church from the false position in which the disloyalty or mistaken policy of the majority of their journals, and a portion of their bishops and clergy, have had a tendency to place her. Though, for the most part, wedded to the Democratic party, which has brought the country to its present critical state, and bitterly prejudiced against the party that elected our present Chief Magistrate, and especially

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against N e w England Yankees, regarded by them as fanatics, bigots, and the enemies of all good, they have nobly volunteered to fill the ranks of our army, and generously shed their blood in defense of the Union. No class of American citizens have, in this respect, surpassed them, and indeed they have set an example worthy of all imitation. Catholics have, considering their numbers, more than their proportion in the regular army and volunteer forces of the Union, and Catholic soldiers, whether w e speak of officers or men, are surpassed by no others now in the field. The loyalty of the majority of the Catholics of the North must be held to efface the disloyalty of the f e w Catholics of the South; and when this war has been prosecuted to a successful issue, w e doubt not that the loyalty of Catholics will cease to be called in question, and both Catholics and non-Catholics will mutually feel that they are citizens of a common country, and form but one political people. That the attempt of some of the so-called Catholic journals to make Catholics believe that the so-called Confederacy is less antiCatholic in its sympathies than the North, in that the North, when the Rebellion is suppressed, will turn its arms against Catholics, may have influenced, and may still influence a few, especially Irish Catholics, whose misfortune it often is to trust their enemies, and suspect their friends, w e do not deny, and w e regret it. But the notion is absurd, and always has been. The South is more infidel or pagan, and far less Christian than the North, and is and always has been, as we might expect, far more anti-Catholic, and, when not absolutely indifferent to all religion, far more bigoted than the North, if, by the North, we refer to N e w England. There is no part of the Union where Catholics are better treated, and suffer fewer annoyances, than in the N e w England States. Nowhere in N e w England will a Catholic priest or a Catholic layman, if a gentleman, miss the treatment due to a gentleman, whatever some of our journals may allege to the contrary. It is, no doubt, true that Messrs. Wise and Hunter, who are secessionists, did good service to the Democratic party, — which, by the way, is not the same thing as doing good service to Catholics, — in arresting the Know-Nothing movements in Virginia; but to defeat the Know-Nothings was for them a political necessity. Had the Know-Nothings triumphed in Virginia in 1 8 5 5 , the chances of either of these individuals becoming a candidate for the Presidency would

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have been less than nothing. Their success depended on the success of the Democratic party, and that party could succeed in no nonSlaveholding State without securing the Catholic and foreign vote. Deprived of that vote, the Democratic party was, and still is, in a hopeless minority in every one of the Free States. The opposition to the Know-Nothings, therefore, no more proved a disposition on the part of Messrs. Wise and Hunter favorable to Catholics, than it proved their loyalty and devotion to the Union. The Secession leaders, no doubt, meant to use Catholics in their struggle for a separate nationality, or the reconstruction of the Union; but there can be just as little doubt that, when they have gained it, they mean to proscribe them, as they have openly avowed, for they wish to perpetuate slavery, and the Catholic religion everybody knows is hostile to slavery, and the Church everywhere exerts her influence against it. There is no safety in this country for our religion but in restoring and preserving the Union, and securing the liberty of the Church not as a political grant or favor, but as one of the inherent and inalienable rights of man. Still we regret that a certain number of Catholics, misled by their demagogues, unite with the followers of Breckenridge of Kentucky, Bright of Indiana, Vallandigham of Ohio, and the Senators from the Border Slave States not yet in open rebellion, in opposing the war for the maintenance of the Union, and in calling upon the government to discontinue it, and to make peace at once. In this they are the dupes of pretended patriots, but real traitors, and serve the cause of rebellion more effectually than they could if its open and declared adherents. The pretence, or the belief that our difficulties could now be settled by a Convention, or compromise, or any concessions short of our absolute submission to the demands of the Rebels, is the idlest thing in the world. The time for Conventions, for compromises, or for conciliatory measures, has gone by, and no man not really in league with the Southern Rebels, no patriot, no friend of the Union, with the slightest grain of intelligence, can for a moment seriously believe in their practical utility. There never has been a time since the election of Mr. Lincoln when any conciliatory measures, or any constitutional compromises, short of a complete surrender to the demands of the Southern leaders, could have been of the slightest avail. The last Congress was disposed to go farther in the way of compromise, and to make

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greater concessions for the preservation of peace, than wisdom or prudence dictated. But there were no terms of compromise the seceded States would accept, short of their full and unequivocal recognition as a separate and independent nation. They openly refused to return to their allegiance, even on the adoption of the so-called "Crittenden Compromise," and declared their separation final and irrevocable, leaving it for us to go to them, but absolutely refusing to come to us. The Border State Convention, whatever may have been the honest intention of many of its members, was a mere farce; for we doubt not that it was, from the first, the intention of the leading politicians in all the Border Slave States to make common cause with their Southern brethren. The present government had exhausted all the hopes of a peaceful solution of our difficulties, before it took the step which was made the pretext for war against it. From the first, Virginia, Maryland, Tennessee, Kentucky, and Missouri were pledged, as far as their leading statesmen could pledge them, to the Southern cause, and, from the first, the question with all the Slaveholding States was separation, or the reconstruction of the Union on the basis of slavery; and we entirely mistake the temper of the Southern statesmen and of the people of the Slaveholding States, if we suppose them prepared to make peace on any other terms now. There is no Peace party, no Union party in any Slaveholding State, except, perhaps, in Missouri and Kentucky, North Carolina, and Western Virginia, on which the slightest reliance can be placed. The Union men in all the other Slave States, or sections of Slave States, not excepting Maryland, are the weak, the passive, the imbecile portion of their population. The talent, the energy, the decision, the governing capacity in all the Slaveholding States, whether the minority or the majority, are on the side of the Secessionists, and secession has a far stronger party in every one of the Free States, than the Union has in any of the Slave States, except those already named. There is no use of attempting to disguise the facts from our own eyes. The Slaveholding States constitute really a united people, a more firmly united people in opposition to the government than we of the Free States are in support of it. Any policy, civil or military, based on a contrary supposition will prove a blunder, and disastrous in the end to the Federal cause. The South have a fixed and definite policy, which they are enthusiastic in carrying out,

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and they will stop at no means, however unscrupulous, judged by them necessary to their purpose. They have chosen war, and they will accept peace, until compelled, only on their own terms. Thus far the war has been mainly a success on their part, and they are far from having exhausted all their strength. Indeed they believe they are able to sustain the war as long as we can, and to sustain it successfully to the end. Nothing is more idle, then, than to suppose that the matter can now be conciliated by politicians, or that the government, without abdicating itself, has it in its power to make peace. The government has no alternative, if it would sustain itself, and preserve the integrity of the nation, or even its own honor, but to prosecute the war, and prosecute it with all the vigor and all the forces and means it can command. For men, then, who profess to be attached to the Union, to talk of "peace," of "conciliation," of "compromises," of "conventions," is the veriest twaddle, or would be, if it were not the grossest outrage upon common sense and common decency. As we have said, all these things have gone by; and to attempt to recall them from the dead past, or to galvanize them into life, is only to betray our own stupidity or our disloyalty. No; we must fight, fight manfully to the end, and teach rebellion a lesson that it will not soon forget. We love peace as much as any man does or can, and no man, in proportion to his means, suffers more by the present war, than we do. But the Scriptures tells us, "Follow after the things which make for peace," not peace at any price; and, now that we are in war, we insist on prosecuting it till the basis of an honorable and durable peace can be obtained. The recognition of the Southern Confederacy and disbandment of our armies would not, as we have shown, secure this peace; because the project of the Southern leaders is not merely a separation from the Union, but a reconstruction of the Union under their control on the basis of slavery. Are we asked, why not quietly submit to the reconstruction demanded? Would there not still be a union of the States under a Federal government? And suppose that it did recognize slavery, what harm in that? Nearly all the States once held slaves, and the Southern States have grown and prospered, become great and powerful with the institution of slavery, and even by it; that institution has not only contributed to the greatness, strength, and prosperity of the South, but has been the basis of the commercial and manufacturing prosperity

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of the North; why, then, should the North oppose it, or hesitate to adopt it? The Union reconstructed on the basis of slavery would be far greater, more homogeneous, stronger, and more prosperous than it has ever hitherto been; and the reconstruction demanded is not merely in the interest of the South, but in the interest of the whole country; why not then accept it? — So we have found men not in a madhouse reasoning here at the North, and so, perhaps, some misguided citizens really believe. We reply to this reasoning — 1. The reconstruction proposed would be the destruction of the present Union, of the Union effected by our fathers, and indeed of the nation which it formed, hitherto symbolized by the "Stars and Stripes." It would be the destruction of our present nation, and, at best, only the substitution of another nation in its place. Now, it so happens that many of us have an ardent attachment to the Union, in which we were born, and under which we have thus far lived, and do not choose to expatriate ourselves, or to be forced to become the subjects of another government. For ourselves, we were born an American citizen, and, wherever the vicissitudes of life may cast our lot, an American citizen we will live and we will die, and no consideration under heaven shall ever induce us to abjure allegiance to the Federal government, or swear allegiance to any other sovereign. Except for gross tyranny or oppression, we deny the right of expatriation, just as we deny the right of secession or revolution. This feeling which we express may be treated lightly by traitors, rebels, and peace-men, and sneered at as mere sentimentality; but we must be permitted to say, that, where it is wanting in any considerable number of the population of a country, there is and can be no real loyalty, no genuine patriotism, and therefore no firm support for a national government, no secure reliance for the nation in its moment of peril. To transfer our allegiance from the present Union to a new Union, not growing out of it, but established in spite of it, and on its ruins, would be to convert us into foreigners in our own country; it would wound, in its most sensitive part, the patriotism of the people, and obliterate from their hearts all sentiments of national honor and loyalty, and therefore the very condition of the existence and durability of the nation, and consequently of the reconstructed Union. 2. A nation, to be great, to be strong, and what the true patriot

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desires it, must have a solid foundation in truth and virtue, and aim at something higher, nobler, more spiritual, than mere material conquest, or material wealth and prosperity. Whatever Southern slaveholders or Northern merchants and manufacturers may think, there is a Moral Governor of this world, and the nation that constitutionally and habitually violates the great law of right and wrong, and contemplates only material grandeur and material goods, either will not long subsist, or subsist only as the scourge of the nations. We want not that paganized Republic of which the Southern leaders dream, and with which they seek to allure us to union with them, even were it to become as great, as powerful, and as magnificent as was ancient Rome, once the haughty mistress of the world. Such a Republic would contribute nothing to modern civilization, nothing to the intelligence, the virtue, or the happiness of mankind. It would be at war with all Christian principles and tendencies, and could only prepare the world for a return of heathen darkness and barbarism. It would be anachronous. It would be out of place in modern society, and out of time in the progress of civilization. It would be a retrograde movement, and therefore a movement against the laws of Providence, as well as against the true interests of mankind. 3. There are some among us who still retain a conscience, and are foolish enough, if you will, to believe that all men are created equal, and have certain inalienable rights, of which civil society cannot divest them, except in punishment for crime. There are people who believe in the practicability of republican institutions, which, though not securing to all men equality of rank or condition, shall yet secure to all their native and inherent rights as men. Such people are honestly opposed to slavery, and can never, without the last struggle, submit to the formation of an aristocratic state with slavery for its corner-stone. It might have been wise and prudent to acquiesce in the institution of slavery as a local institution in some of the States of the Union, where it existed prior to the Union itself, or had since been suffered to acquire, a legal, or quasi-legal existence, so long as it could not be reached without doing violence to the Constitution; but it would be something very different to consent to the reconstruction of the Union on the basis of slavery, and to give it through the Constitution a legal status. Slavery, say what we will of it, is a great moral, social, and political wrong, and

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that, too, whatever be the complexion of the slave. If there be any truth in Christianity, if there be any truth in the teachings of the great Fathers and Doctors of the Church, God never gave to man the dominion of man; and hence St. Augustine, St. Gregory the Great, and others, tell us that the first rulers of mankind were called pastors or shepherds, not lords or dominators; and that God gave to mankind dominion over the irrational creation, but not over the rational. The Church has tolerated slavery, where she lacked the power to abolish it; but her whole history proves that she sets her face against it, and uses all the means at her disposal, without shocking the public peace, or creating tumults and disorder, to prepare the slave for freedom, and to secure his ultimate emancipation. The negro is a man — is a human being — a member of the human race; and, whether naturally inferior or not, to the boasted Caucasian variety, he has the same natural and inherent right to liberty that has the white man, and the wrong of enslaving him is just as great as it would be if he were white. The laboring man, whether white or black, may be a poor man, but God has given him the right to be a free man, to be his own man, not another's. As to the argument of our Southern slaveholders, and apologists for slavery, that the slave is better cared for, better fed, and better clothed than our poor laborers at the North, they weigh nothing with us; because they relate only to the human animal, and not to the man. If the slave were a mere animal, had no rational soul or moral nature, if he were indeed an ox, a horse, or a dog, we should not complain of his condition, or offer any objection to slavery. We believe that the animal in the slave is often better provided for than the animal in the poor white laboring man; but the man is and must be neglected. It is the man that is wronged and outraged, the man that is debased and enslaved; and the slaveholders know very well that, in order to keep their slaves in subjection, they must close to them, as far as possible, all the avenues to intelligence, debar them from all intellectual and moral culture, and keep them as near the level of brutes as they are able; they must stifle in them the man, and prevent the development in them of that "image and likeness" of God in which they were created. It is this that renders slavery an outrage upon humanity, and has excited against it the indignation of the whole Christian world. We cannot, therefore, consent to the reconstruction of the Union

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on the basis of slavery. We believe in the rights of man; we believe in liberty; we would secure to all others that liberty which we demand for ourselves; and we believe slavery a great wrong, a sin against humanity, which is sure, sooner or later, to bring down the vengeance of God upon every people that adopts and insists on perpetuating it. The nations of antiquity had slaves; where are those nations now? Pagan Greece and Rome had their slaves; and where are Greece and Rome today? The Ottomans have had their slaves, and the Ottoman empire is now in its agony. Spain became a great slave power through her colonies. Most of those colonies has she lost, and she herself has fallen from the first power, below the rank of a second-class power of Europe. The same may be said of Portugal. Only those nations in Europe, which have emancipated their slaves, freed, or are freeing their serfs, show any signs of longevity. Let the fate of all slaveholding nations be a warning to all those weak, cowardly, or traitorous men at the North, who would consent to the reconstruction of the Union on the basis of slavery. Let them reflect that "the wicked shall be turned into hell, and all the nations that forget God;" and every slaveholding nation, whatever its spasmodic piety, or its hypocritical professions, does forget God, who never refuses to hear and ultimately to avenge the slave. 4. Finally, passing over all thus far adduced, we cannot consent to such a reconstructed Union, because it would contain in it no element of strength and durability, but the seeds of its own dissolution. It would be based not only on slavery as its corner-stone, but on the right of any or every State to secede, whenever it should choose, without the other States having any right to call it to an account for its secession. This recognized right of secession may work no great harm to-day, while the Confederate States are united in a grand struggle for separate existence, or national reconstruction; but the moment that struggle is over and peace is restored, it would begin to operate, and render the Confederate bond a mere rope of sand. State jealousies would spring up, and new secessions would commence; the Union would hardly be reconstructed before it would be re-dissolved into its original elements, and there be as many separate and independent governments as there are individual States. We tried confederation before constructing the Union, and found that it would not work; and the Union itself, if it has any

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defect, is in the fact that it leaves the Federal power too weak for an effective central power, or to constitute the people of the several States really and practically one political people. The new Confederacy would be still weaker, exaggerate this defect, inasmuch as it would recognize the right of every individual State to secede whenever it judge it for its own interest, convenience, or pleasure to do so. Is it to be hoped that the Confederacy would be conducted with so much wisdom and propriety as never to give umbrage to any State, or that disappointed and ambitious politicians in any State would never find or make a cause for dissatisfaction, and, like the politicians of South Carolina, whirl their State out of the reconstructed Union? Even now, we are told, South Carolina and Georgia are beginning to manifest symptoms of dissatisfaction with the Confederate government, and we can readily believe that, if the pressure of a common danger were removed, each of them would lose no time in raising the "Lone Star" of independence, and seceding from secession. However attractive, then, might be the dream of a reconstructed Union on the basis of slavery, we could never hope to realize it; for we could never hope to preserve it any considerable length of time in its integrity. There would soon be disaffection at the South; there would be disaffection at the North; and there would always be disaffection in the consciences of all good men, of all true Christians in all sections, created and sustained by the moral and social plague of slavery. Here are reasons amply sufficient why we should not discontinue our efforts to preserve the Union as it is, and why we should not make peace with the Rebels on their own terms, or accept their proposition of substituting the Constitution of the Confederated States for the Constitution of the United States. The government, we insist, had no alternative in the outset but to abdicate itself, or to resist the rebellious movements with all the forces at its command. It has no other alternative now, and the men who would urge upon it any other policy can be commended for their loyalty only at the expense of their intelligence. The only fault of the government has been in having too long pursued a conciliatory policy, in having delayed too long the necessary measures to vindicate its own dignity and authority, in adopting timid and half-way measures, and in having prosecuted the war with too little vigor, and with too great tenderness toward the Rebels. But

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it is no time now to call up its past delinquencies, and parade them before it. Nothing remains for it but to let the past go, and henceforth treat secession as rebellion, and the seceders and their aiders and abettors as traitors. We wish it to prove that it has the courage and the disposition to treat them as traitors, wherever it meets them, or is able to seize them. We desire it to understand that there is war, real war, downright earnest war, and a war to be conducted not on the principle of respecting the feelings of the enemy, and of doing him no harm, but on the principle of striking him where he is weakest and sorest, and availing ourselves of every advantage against him allowed by the laws of civilized warfare. The Rebels offer no advantage to us; they avail themselves of every advantage against us in their power, respect none of our susceptibilities, and take no pains not to wound our feelings; we must mete them the measure they mete. They allow in their States, where they have the power, the utterance of no Union sentiments, of no Union speeches, or Union harangues, and they hang, imprison, or banish every Union man they can lay their hands on, who keeps not his Union sentiments to himself. We must mete out a like measure to every rebel or secessionist we find in the loyal States, and silence every voice raised against the right of the government to vindicate and preserve the Union by force of arms. It is madness to send our sons and brothers to fight rebels in Virginia, Tennessee, or Missouri, while we suffer their friends, aiders, and abettors to spout their treason and disloyal sentiments here at home. It is not only madness; it is a moral wrong; it is, as some would say, worse still,— it is a blunder. Do not tell us that this would be contrary to the Constitution and the free expression of opinion. Traitors and friends of traitors have no Constitutional rights, for they are in rebellion against the Constitution itself, and no man can stand on his own wrong. Free expression of opinion! Just as if the question between lawful authority and rebels were a question on which there could be two honest opinions! Is it a question of opinion, when a nation is engaged in a struggle for its very existence, whether its children shall support it or not? Is it a matter of opinion whether the nation shall be preserved or not? Is it a matter of opinion, when I am assaulted by an assassin, whether I have the right to resist him or not; whether I shall quietly submit to be assassinated, or snatch the dagger from

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his hand, and plunge it into his own heart? Have men lost their senses? Are we to argue the question whether the sun shines in the heavens or not, when we see it with our own eyes? Down with such intolerable cant about "Constitutional liberty," and "freedom of speech or opinion!" How, if the Constitution is gone, trampled underfoot by rebels, do you expect to maintain constitutional liberty, or any other kind of liberty worth having? Understand at once that we are in war, and in a war for the preservation of the Constitution, for the preservation of liberty, political, moral, mental, civil, and social, and that it is never permitted to plead the Constitution and liberty against the measures necessary for their maintenance. Do understand, if understanding you have, that we are in war for the very existence of the nation, and that, if the nation goes, constitutions and liberty go with it. It is only by preserving the nation in its integrity and its majesty that the Constitution can be maintained, and the liberty it secures enjoyed. Neither the nation nor the Constitution can afford protection to those who would only use their liberty and the Constitution to destroy them. The measure we suggest may be severe, and such as in ordinary cases of rebellion ought not to be resorted to by a free government. But we are engaged in suppressing no ordinary rebellion; we are engaged in suppressing a rebellion of vast proportions, of vast resources, and of strength hardly inferior to that of the loyal States themselves. We can put it down; and, God helping, we shall put it down; but not without exerting all our strength, and availing ourselves of all the means to suppress it authorized, we will not say by the Constitution, but by the recognized laws of war. War has its own laws; and, while it lasts, it overrides all other laws, and, if need be, places the Constitution itself, so far as it would be a barrier to its success, in abeyance. Salus populi lex suprema est is a universally received maxim, and the safety of the nation is the only law which can control military operations, or determine the measures necessary or proper in the preservation of the war. It is all very well for your Breckenridges, your Burnetts, your Brights, and your Vallandighams, et id omne genus, to prate in Congress and elsewhere about the unconstitutionality of the acts of the President; we know not, and care not, whether those acts were constitutional or not, so long as we know that they were necessary to the maintenance of the Union, the majesty of law, and

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our national existence itself. How long must it take the petty political attorneys to learn that the nation is above the Constitution, since it makes the Constitution, and its preservation is more than the preservation of the Constitution, and therefore that all acts necessary to maintain the integrity of the nation and its authority are always lawful, authorized by the highest of all laws? Only they who uphold the Constitution, sustain the Union, and labor to save the Constitution, can plead the Constitution and laws in their favor. They who rebel, or aid and abet rebels, by their very act of rebellion put themselves out of the protection of the Constitution and laws, and cannot demand their protection, and should not be permitted to expect that it will be extended over them. The Constitution and the laws are for loyal citizens, — not for rebels and traitors. Let, then, the measures suggested or recommended be severe, let them be such as in peaceful times, when the Constitution and laws are unresisted and everywhere cheerfully and respectfully obeyed, would be unconstitutional and indefensible, that, in times like these, when the very existence of the nation is at stake, is no objection to them. The first law of nations, as well as of individuals, is selfpreservation. It is unconstitutional and illegal to hang innocent and peaceful men; but it is neither illegal nor unconstitutional to hang murderers. It is unconstitutional and illegal to shoot down innocent and peaceful men arrayed in the field before you, even though they have arms in their hands; but it is not unconstitutional or illegal to shoot them down in self-defense, or in defense of the Constitution and laws. Let us, then, hear no more about the constitutionality of this or that measure clearly necessary to the safety of the nation, and the preservation of the Union under the existing Constitution. In a state of war every thing has to give way to military necessity, private property, liberty, and even life itself. The State may take, if its necessities demand it, the private property of its citizens to the last cent, and it can command any citizen it sees proper, to march to meet the enemy, and, if need be, and the fate of war so decide, to lay down his life, and, what is dearer than life, his liberty, for his country. On this principle the Federal government now calls for troops, and imposes heavy taxes on our property for the support of the war; and loyal citizens cheerfully respond to its call, because they know it has the right to do it, and because they know that, if the country be lost, all is lost, life, liberty, and property themselves.

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A heavy tax is imposed by the present war on the citizens of the loyal States, although the war has been brought about without any fault of theirs, or any act of theirs having rendered it necessary. Are they to bear the whole burden it imposes, without any indemnification, or without any attempt, at least, to make the rebellious States, whose treachery has created the necessity for it, bear any portion of it? Shall not they who dance pay the piper? In preserving the Union, do we not do it for the benefit of the disloyal, no less than for the benefit of the loyal States; and must we, because we are loyal, bear the whole burden of preserving it? The Union has as much right to tax disloyal as loyal citizens, and to collect the tax from the disloyal in the most ready and practicable way possible. Hence Congress, at its last session, passed an act confiscating the property of disloyal citizens of the States now in rebellion, and authorizing its seizure wherever it can be found. This is only simple justice. They whose misconduct has created the war, should be made, as far as possible, to bear its burden, or to indemnify the loyal States for the expenses it compels them to incur. But military necessity may require us to go even farther than this late Act of Congress. The laws of war and military prudence authorize us to strike the enemy where he is most vulnerable, and where the blow will inflict on him the greatest damage. No just war is ever prosecuted for the sake of war. War, for the sake of war, is in all cases unjustifiable. War is justifiable, and can be engaged in by Christian people, only when it looks to peace for its end, or, which is the same thing, the removal of the causes which have rendered it necessary. If it may be justly resorted to, it is always lawful so to conduct it as in the speediest and most effectual manner possible to remove those causes, to redress the wrongs for which it is waged, and to bring about the desired peace. We are never morally obliged to meet the enemy on his own chosen ground, or to fight him with an equality of forces or weapons. We have the right to choose our own time, place, and mode of attack, and to choose such time, place, and mode as will be the most inconvenient or distressing to him, and the most effectually cripple his resources, crush his power, and compel him to surrender. If he has a weak spot, one weaker than another, we have not only the right, but in common prudence and common humanity are bound to seek out that spot, and there strike our heaviest and deadliest blow. Thus, if there is a disaffected party in the en-

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emy's country, we have the right to encourage and strengthen that party. Hence the government has labored to strengthen and encourage the Union men in Western Virginia, Eastern Tennessee, Maryland, Kentucky, and Missouri, and by so doing has prevented these States and parts of States from joining openly in the Rebellion. On the same principle it has a right to go farther, and make friends and allies of all classes of the population of the rebellious States that it can influence, and that, too, without reference to the condition in which they have heretofore been placed by the laws or usages of those States themselves. This brings us to the question of the slave population in the rebellious States. In these States there are over three millions of the population held by the laws or usages of those States as slaves. These people are an integral portion of the people of the United States, owe allegiance to the Federal government, and are entitled to the protection of that government. The government has the same right to make friends and allies of them, and to enroll and arm them against the Rebellion, that it has to make friends and allies, or to enroll and arm the white population of Western Virginia or of Eastern Tennessee. It makes nothing against this that these people have heretofore been slaves by the laws or the usages of the States in which they reside; for those laws or usages are deprived of all force against the Union by the very act of Rebellion. Rebellion dissolves all laws for the protection of the life or property of the rebels. By the very act of rebellion, the rebel forfeits to the government against which he rebels both his property and his life, and holds henceforth neither, save at its mercy or discretion. If it were not so, the government would have no right to confiscate the property of rebels, or to attempt to suppress a rebellion by force of arms. If the slaves held in the rebellious States are property, they are forfeited to the government, and the government may confiscate them, as cotton, rice, tobacco, or any other species of property found in the hands of the Rebels. The same principle that gives to the government the right to confiscate a bale of cotton owned by a Rebel, gives it a right to confiscate every negro slave claimed by a rebel master. This is perfectly clear, and is implied in the recent Act of Congress on the subject. But if these people held as slaves are not property, they are and should be regarded as citizens of the United States, owing allegiance to the Federal government, liable to be

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called into the service of the Union in the way and manner it deems most advisable, and, if loyal, entitled to the same protection from the government as any other class of loyal citizens. Nobody can pretend that the Federal government is obliged, by virtue of the laws or usages heretofore existing in the Slave States, to treat these people as property. Whatever might have been its obligation before the rebellious acts of those States, that obligation is now no longer in force. But if it be required to treat them as free and loyal citizens by the military operations for the preservation of the Union, or even to remove the causes of the present rebellion, the government is bound so to treat them. The only doubt that can arise is as to the fact, whether it would or would not prove useful to this end. It may be objected to such a measure that it would deprive us of the aid of Western Virginia and Eastern Tennessee, and drive into open hostility to the Union Maryland, Kentucky, and Missouri. This objection deserves grave consideration. But it is in substance the objection that has embarrassed the government from the outset, and compelled it to take only half-way measures to suppress the Rebellion. For ourselves, we cannot respect the fear to which this obligation appeals. Fear is the worst possible counsellor in the world, and the government that hesitates to adopt the best policy for fear of alienating its friends, is lost. Let the lines be at once sharply drawn between our friends and our enemies. In a crisis like the present, lukewarm friends, or friends who will be our friends only by virtue of certain concessions to their interests or prejudices, are more embarrassing than open enemies, and do more to weaken our forces than if arrayed in open hostility against us. If these States are for the Union they will insist on no conditions incompatible with the preservation of the Union; they will make sacrifices for the Union, as well as the other loyal States, and there is no reason why they should not. There is neither reason or justice in Massachusetts, New York, New Jersey, Pennsylvania, and the great States north-west of the Ohio, pouring out their blood and treasure for the gratification of the slaveholding pretensions of Maryland, Kentucky, or Missouri. The citizens of these States who own slaves, are as much bound, if the preservation of the Union requires it, to give up their property in slaves, as we at the farther North are to pour out our blood and treasure to put down a rebellion which threatens alike them

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and us. If they love their few slaves more than they do the Union, let them go out of the Union. We are stronger to fight the battles of the Union without them, than we are with them. But we have referred only to the slaves in the rebellious States, and, if it is, or if it becomes a military necessity to liberate all the slaves of the Union, and to treat the whole present slave population as freemen and citizens, it would be no more than just and proper that, at the conclusion of the war, the citizens of loyal States, or the loyal citizens of loyal sections of the rebellious States, should be indemnified at a reasonable rate for the slaves that may have been liberated. The States and sections of States named have not a large number of slaves, and, if the Union is preserved, it would not be a very heavy burden on it to pay their ransom; and to paying it no patriot, or loyal citizen of the Free States would raise the slightest objection. The objection, therefore, urged, though grave, need not be regarded as insuperable; and we think the advantages of the measure in a military point of view, would be far greater than any disadvantage we have to apprehend from it. Whether the time for this important measure has come or not, it is for the President, as Commander-in-Chief of our armies, to determine. But, in our judgment, no single measure could be adopted by the government that would more effectually aid its military operations, do more to weaken the Rebel forces, and to strengthen our own. Four millions of people in the Slave States, feeling that the suppression of the Rebellion and the triumph of the Union secures to them and their children forever the status of free citizens, are more than a hundred thousand men taken from the forces of the enemy, and twice that number added to our own; for they would not only compel the Rebels to keep a large force, that might otherwise be employed, at home, to protect their own wives and children, but would deprive them of the greater portion of that labor by which they now subsist their armies. Now slavery is to them a source of strength; it would then be to them a source of weakness. Its abolition would, in our judgment, be striking the enemy at his most vulnerable point, precisely where we can best sunder the sinews of his strength, and deal him the most fatal blow. Moreover, it would not only bring to the assistance of the Federal arms the co-operation of the whole colored race in the Union, but would secure us, what we now lack, the sympathy and the moral aid

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of the whole civilized world, and remove all danger of our coming into conflict with either France or England. The war would be seen then likely to effect a result with which Englishmen and Frenchmen could sympathize, and, instead of wishing for the success of the Southern Confederacy, they would wish with all their hearts for the success of the Federal arms. It would do more than this. It would bring to the aid of our volunteer force from one hundred to two hundred thousand brave and stalwart volunteers from the Free States, aye, and even many from the Slave States themselves, who will not, and cannot be induced to volunteer their services in a war which, even if successful, promises to leave the institution of slavery not only existing, but more firmly established than ever. Everybody knows that slavery is at the bottom of the whole controversy, and that the real object of the Southern leaders is not simply to protect slavery against abolition movements where it exists, but to extend it over the whole Union, and make the American Republic a great Slaveholding Republic. And there are men in large numbers amongst us, men who have had no sympathy with Abolitionists, who see and understand very well that, even were we successful in putting down the present rebellion, no real union between the North and the South could be restored, and that no durable peace between them could be re-established, if slavery continued to exist. These men enter not and will not enter heartily into the war, unless they see clearly and feel fully assured that it will result in the final and total extinction of slavery throughout the Union and all the territory it may now possess or hereafter acquire. The present rebellion proves, what thoughtful and farseeing men in all sections of the Union have long seen and said, that the preservation of the Union with the Slave System of labor extending over one half of it, and the Free-Labor System over the other half, is, in the ordinary course of human affairs, an impossibility. Senator Seward, or rather Mein Herr Diefenbach in our Review before him, was right in saying there is an "irrepressible conflict" between the two Systems. They cannot long coexist together in peace and harmony; there is an irrepressible tendency in each to exclude the other; and no possible wisdom or prudence, on the part of any administration, can harmonize their coexistence under one and the same government. You must make your election between the Systems, and adopt for the whole country either the Slave System, or

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the Free-Labor System; and the real significance of the contest in which we are now engaged, is as to which of these Systems shall be the American system. However homogeneous in race or character, habits or manners, may be the people of a country in the outset, they separate, and grow gradually into two distinct peoples, with almost entirely different ideas, habits and customs, if one half of them in the one section adopt the Slave System, and the other half in the other the Free-Labor System. We have already in the United States, notwithstanding our common origin, our common language, the similarity of our laws, and our habitual intercourse, grown almost into two distinct nations. The Confederates are Americans indeed, for they have been born and bred on American soil; but they no longer retain the original American character; while in the Free States, bating the alterations effected by foreign immigration, that character is substantially preserved. We of the North are the same people that made the Revolution, won American Independence, and established the Federal government. This divergence showed itself even at the time of the Revolution; and it has been growing greater and greater from the beginning of the present century; and if the two Systems of labor are continued on American soil, must continue to grow still greater and greater, till the people of the two sections grow up into two absolutely distinct and mutually hostile nations, no longer capable, but by the subjugation of the one by the other, of existing under one and the same government. The only way this divergence can be checked, the unity and homogeneousness of the whole American people recovered and preserved, is by the assimilation of the Labor Systems of the North and the South. We of the North cannot and ought not to accept the Labor system of the South. But the Slave States, by their unprovoked rebellion, have given us an opportunity of performing an act of long delayed justice to the negro population of the Union, and of assimilating the Southern Labor system to ours. This assimilation is at the bottom of the Southern Rebellion, and the South has risen in arms against the Union, chiefly for the purpose of extending her Labor system over all the Free States. In doing so, she gives us the right, in our own self-defense, to extend our Free-Labor System over all the Slave

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States, — a right which, but for her rebellion, we should not have had under the Constitution. If this prove a disadvantage to the Southern States, owing to the peculiar character of their laboring population, they have no right to complain, for it is a disadvantage they have brought upon themselves. But this will be a disadvantage only as compared with us of the North; for it will be better for the South herself to have her negro population free laborers, than it is to have them slaves. In counting the population of the South, we must count not merely her white, but also her black and colored population. The moral, spiritual, and material well-being of her four millions of black and colored people must be considered, as well as the moral, spiritual, and material well-being of her eight millions of whites. These black and colored people are as much human beings, whose welfare is as important and as necessary to be consulted by the statesman, the political economist, the moralist, and the Christian, as that of any other portion of her population; and what they would gain by their emancipation should be thrown into the balance against what might be lost by their former owners. But even the three hundred and forty-seven thousand slave proprietors would, in reality, lose nothing, or gain in moral more than they would lose in material prosperity. We do not believe Southern society would, in case of emancipation, be equal to what it would if the whole population were of the white race. The negro element would remain in that society, and, wherever it remains, it will be an inferior element; but far less so as free, than as enslaved. The white population of the South must always suffer this drawback for having collected, or submitted to the collection of a large African population on their soil, and they have no right to complain if obliged to make expiation, as long as the world stands, for having introduced and sustained the institution of negro slavery. But aside from the disadvantage of having its laboring population of a race with which the white race will not mingle, the South would gain by the assimilation of her Labor system to that of the North. M. Augustin Cochin has proved, in the work before us, that slavery can be abolished, and the slaves converted into free laborers, without any serious detriment, even to the former slave proprietors. We all know that free labor is more economical than slave labor,

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and therefore that a freeman is worth more, under the point of view of national wealth, than a slave. The conversion of the four millions of slaves now in the Southern States into freemen, would very much increase, instead of diminishing, the aggregate wealth of those States; and if a portion of this increased aggregate wealth should pass from the hands of a few slave proprietors, and into the hands of those who have heretofore been allowed to hold no property, the aggregate well-being of the whole community would also be augmented instead of diminished, and therefore the South, regarded as a whole, or looking to her whole population, would be unquestionably a great gainer by the change. It would not in any respect be depopulated or impoverished, but would be in the way of a more rapid increase of its population, and of that wealth which constitutes the real strength and prosperity of a State. What we propose, then, would in no respect be ruinous, or even injurious, to the Southern States themselves, but would be a real advantage to them, and secure them after the peace all the real greatness, strength, and prosperity States with a mixed population of white and black are capable of. The proposition, then, involves no wrong, no injustice, no injury to the white population of the Southern States; while it would be an act of justice, though tardy justice, to the negro race so long held in bondage, and forced to forego all their own rights and interests for the pride, wealth, and pleasure of their white masters. It seems to us, then, highly important, in every possible view of the case, that the Federal government should avail itself of the opportunity given it by the Southern Rebellion to perform this act of justice to the negro race; to assimilate the Labor system of the South to that of the North; to remove a great moral and political wrong; and to wipe out the foul stain of slavery, which has hitherto sullied the otherwise bright escutcheon of our Republic. We are no fanatics on the subject of slavery, as is well known to our readers, and we make no extraordinary pretensions to modern philanthropy; but we cannot help fearing that, if the government lets slip the present opportunity of doing justice to the negro race, and of placing our Republic throughout in harmony with modern civilization, God, who is especially the God of the poor and the oppressed, will never give victory to our arms, or suffer us to succeed in our efforts to suppress rebellion, and restore peace and integrity to the

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Union. We have too long turned a deaf ear to the cry of the enslaved; we have too long suffered our hearts to grow callous to the wrongs of the down-trodden in our own country; we have too long been willing to grow rich, to erect our palaces, and gather luxuries around us by the toil, the sweat, and the blood of our enslaved brethren. May it not be that the cry of these brethren has already entered the ear of Heaven, and that He has taken up their cause, and determined that, if we refuse any longer to break their chains, to set them free, and to treat them as our brothers and fellow-citizens, we shall no longer exist as a nation? May it not be that, in this matter, we have Him to reckon with, and that the first step toward success is, justice to the wronged? We confess that we fear, and deeply fear, if we let slip the opportunity which the Southern Rebellion gives us to do justice to the slave, or to make his cause ours, in vain shall we have gathered our forces and gone forth to battle. We fear God may be using the Rebels as instruments of our punishment — instruments themselves to be destroyed, when through them our own destruction has been effected. We speak solemnly and in deep earnest; for he fights at terrible odds who has the infinite and just God against him. It may be that an all-wise Providence has suffered this rebellion for the very purpose of giving us an opportunity of emancipating rightfully, without destroying, but as a means of preserving, the Union, the men, women, and children now held in bondage, and of redeeming our past offenses. If so, most fearful will be His judgments upon us, if we neglect the opportunity, and fail to avail ourselves of the right. Now is our day of grace. This opportunity neglected, our day of grace may be over, and our Republic follow the fate of all others, and become a hissing and a by-word in all the earth. Which may God in His infinite mercy avert! Since the foregoing was in type, we have seen a characteristic correspondence between the Bishop of Charleston and the Archbishop of this city, which tends to confirm what we have said of the position of Catholics in the present Rebellion. The Bishop of Charleston is, of course, a secessionist, and, like most Southern Catholics, bitterly hostile to the North, especially New England. There are a few things in the Archbishop's reply which we wish had been omitted, as tending to foster that sectional prejudice which Southern influence has but too successfully created in our Catholic

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population; but upon the whole it is noble and loyal, well-written and ably-reasoned, and worthy of the high character and position of its illustrious author. The argument against secession is conclusive, and his Grace fully sustains our position, that it is the duty of Catholics to stand by the Union, and give, if need be, their property and lives, in its defense against the present wicked and unprovoked Rebellion. As a native-born American citizen, we thank him for his loyal expressions, and we are most grateful to him, as a Catholic, for having given the sanction of his name and position to the efforts of those in our communion who have staked their property, their reputation, and their lives even, in the noble effort to rescue the Catholic Church in the United States from the false and damaging position in which such Catholic citizens as the Bishop of Charleston and one or two others would place her. His letter is an event, and must have a marked influence on the future of Catholicity in this country and, we may say, on the country itself. It will teach Catholics that the present conflict is not a conflict between two political parties, and that the present fearful struggle in which we are engaged is not a struggle to decide whether the affairs of the country shall be administered by the Republican party or by the Democratic party, but a conflict between loyal citizens and rebels, to decide whether we have or have not a country to govern. This is the tremendous issue involved in the present struggle, and Catholics who are worthy of the name, who understand and are prepared to follow the teaching of Catholic morality in its political applications, however strongly they may heretofore have been attached to the Democratic party, or however readily they may have listened to the counsels of men who are now in arms, or sympathizing with those who are in arms, against the national authority, must give a firm and cordial support to the present Federal administration. No matter what party elected that administration, no matter whether we like or dislike the men themselves, so long as they represent the national authority, and labor to sustain the Federal Union and national integrity, we must rally to their support. In this fearful contest, party prejudices, personal preferences, and sectarian controversies must all for the time be sacrificed upon the altar of our country in the discharge of our high patriotic and Christian duties. This we should learn from the noble letter of our illustrious Archbishop, and we trust that those Catholics, if any such there are, who

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might refuse to listen to our reasoning and advice, will listen and heedfully follow what he declares to be the duty of all Catholic citizens, whether natural-born or naturalized, in the trial through which our country and republican institutions are now passing. His Grace has appreciated the duty of the citizen, and also the true interests of the Church in the United States, and it would be difficult to over-estimate the service he has rendered by his letter, to both the Church and the state.

Pamphlet 7 Matthew Fontaine Maury and John C. Breckinridge Captain Maury's Letter on American Affairs. Also the Address of Hon. John C. Breckinridge to the People of Kentucky. [Baltimore, 1861?] [Some firmly pro-Confederate pamphlets were published and circulated in the North during the Civil War. Late in 1861 or early in 1862, The South, published in Baltimore, openly produced a pamphlet containing two emphatic letters, one a defense of the Confederacy by Captain Matthew Fontaine Maury and the other, by John C. Breckinridge, an attack upon the Lincoln administration for violating the alleged neutrality of Kentucky. Along with much other evidence, Breckinridge cited the suppression of the Louisville Courier. The South itself, a daily newspaper established on April 22, 1861, by Thomas W. Hale, was suspended by the Federal military authorities in February, 1862. Maury ( 1806-1873 ) w a s an officer in the United States Navy and a pioneer oceanographer famous for his charting of winds and currents. As a Virginian he had hoped for conciliation, but followed his state into the Confederate service. As an agent for the Confederacy in England from 1862 to 1865 he was an eloquent spokesman for the South. Breckinridge ( 1 8 2 1 - 1 8 7 5 ) , Vice-President in the Buchanan administration, was the presidential candidate of the Southern wing of the Democratic party in i860. He had advocated compromise, but when Kentucky invited Union troops into the state he fled to join the Confederate army.]

C A P T . M A U R Y ON A M E R I C A N

AFFAIRS.

A LETTER ADDRESSED TO REAR-ADMIRAL FITZ ROY, OF ENGLAND.

Richmond, Virginia, August, 1861. My Dear Admiral: — Since this nefarious war was forced upon us, my hands have been busy in preparing for it; and I have not had either the time or the opportunity to let my friends and former fellow-laborers on your side of the water know what is become of

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me. M y country was torn; the Union was gone; a number of States had renounced it. In this breaking up of our once happy and great republic, it became me to take sides. The path of right and duty was clear, and here I am. On the 20th of April, finding exercise of her high prerogative, Union and appealed to her sons I could not, and did not hesitate relief.

that this, my native State, in the had withdrawn from the Federal to rally around her, I would not, to obey the call and hasten to her

On that day, after formally renouncing all allegiance to the now shattered Federal Government, and turning over to the officer next in command the trust that had by it been confided to my care, I left the Observatory at Washington once more a free citizen of Virginia. Its associations, the treasures there, which, with your help and that of thousands of other friendly hands, had been collected from the sea, were precious to me, and as I turned my back upon the place a tear furrowed my cheek for I could not but recollect that such things were. The Yankees, as only those who are making war upon us are now called, have shown themselves vindictive to a degree; they have vilified me; they have set a price upon my head, and intercepted all of my foreign correspondence, so that I have not been able to get a hearing in any part of Europe, or to communicate since April last, with any friend there. It is becoming and proper that I should make known to my friends abroad the course that I have thought right to pursue in this new state of things. And to be clear, I beg leave to interpolate here a f e w remarks explanatory of the relations of the several States to the Federal Union, and of the relations in which the citizen stands to his State and the Union. At the end of the war which separated the thirteen colonies from the British crown, each one was separately acknowledged and recognized as a free, sovereign and independent State. When the States formed the Federal Union, they did not renounce their sovereignty any more than Great Britain renounced her sovereignty when she formed the Holy Alliance. They only delegated a portion of it to be used by the trustee or agent, called the Federal Union, for certain fixed and definite purposes and no other. When Virginia agreed to this compact and adopted the Federal

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Constitution, she accompanied the act with the following declaration asserting her right, for cause, to withdraw from it at will: Act of the State of Virginia adopting the Federal Constitution, passed the 26th day of June, 1788. "We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO, in their name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whenever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them and at their will. That therefore, no right of any denomination can be canceled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that among other essential rights, the liberty of conscience and of the press, cannot be canceled, abridged, restrained or modified by any authority of the United States." Owing to the complicated form and peculiar nature of our government, State and Federal, we, its citizens, all owe a double allegiance. First to the State in which we were born or of which we claim citizenship. Afterwards to the Federal Government of which that State is a part. Now as this is a relation which at first seems difficult of comprehension, especially to those who are not thorough masters of our political institutions, I will produce here the celebrated Charlotte resolutions. They were uttered when I was just entering upon the stage of manhood, and their soundness and real American orthodoxy have been confessed and acknowledged now for these thirty years by our wisest and best statesmen. THE CHARLOTTE BESOLUTIONS.

Resolved, That Virginia is, and of right ought to be, a free, sovereign and independent State; that she became so by her own separate act, which has been since recognized by all the civilized

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world, and has never been disavowed, retracted or in any wise impaired or weakened by any subsequent act of hers. Resolved, That when for purposes of common defence and common welfare, Virginia entered into a strict league of amity and alliance with the other twelve colonies of British North America, she parted with no portion of her sovereignty. Although from the necessity of the case, the authority to enforce obedience was, in certain cases and for certain purposes, delegated to the common agent of the whole Confederacy. Resolved, That Virginia has never parted with the right to recall the authority so delegated, for good and sufficient cause, nor with the right to judge of the sufficiency of such cause, and to secede from the confederacy whenever she shall find the benefits of the Union exceeded by its evils. Union being the means of securing liberty and happiness and not an end to which these should be sacrificed. Resolved, That the allegiance of the people of Virginia is due to her — that to her their obedience is due, while to them she owes protection against all the consequences of such obedience. Thus it appears that Virginia, in withdrawing from the Union, did but exercise a reserved and inalienable right, and that, in following her fortunes, I performed a simple act of duty and devotion. Right or wrong it was my duty to follow her. — How happy, then, ought not I to be that her cause is so holy and just? Pray now, my friend, after this interpolation, bear with me while, briefly and succinctly, from the Southern stand-point, I explain to you the real nature of those influences which have led to this early disruption of the American Union: —You recollect that I told you when in London last November, when these difficulties were just beginning to loom up abroad, that all the right was on our side. You could not understand it then, for your information was derived chiefly through the Northern press. Few people in England, I believe, ever read a Southern newspaper; led astray by the apparently just but really one-sided statements and teachings of the Northern press, your people were induced to look upon our troubles, and the complaints of the South, merely as the empty ravings of a political party that had been turned out of power. The South, by some means, it was held, ruled the Government from the beginning; it had lorded it over the North — and now that the North, having its patience

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worn out, had, by constitutional means, taken the power in its own hands, the South was simply acting the part of a spoiled child, in the overgrown boy, who had been allowed to play with a borrowed toy until he believed it his own, and who when at last it was taken away and restored to its rightful owner, disturbed the family with his childish ravings. Such seemed to be the light in which the affair was looked upon generally in England and on the Continent — and such evidently was the light in which the Yankee press held it up to foreign view. But the real difficulty is one of another sort, and the causes out of which it has sprung are old and deep seated. They are partly physical, partly industrial, partly social, and partly political; they have been cumulative. The New England States are manufacturing, sea-faring and commercial — the Southern States are agricultural. The most profitable labor in this country was the agricultural labor of the South. Your own commercial statistics prove this, for they show that about threefourths of the national exports consisted of agricultural products of the South. Here then were two sections of the country so invested with physical conditions, that labor in the field was very unprofitable in one — very profitable and highly remunerative in the other. Yielding to these conditions, the laboring man of the North, to earn a living found it easier to go to sea than starve at home — while his fellow at the South, found it easier to gather "enough and to spare" from the teeming soil and the genial climate of his own sunny South. Therefore, at the formation of the Government the two sections presented themselves — one as sea-faring, with fishing as its chief occupation; the other, as agricultural. But soon the Yankees came up with representations of this sort: — Fishing is a poor business said they — it doesn't pay — but fishing ought to be encouraged for National purposes; therefore, let us not only protect Yankee-caught fish in our markets against the fish caught by the Irish, Dutch and French, but let us give the New Englanders a bounty on all fish that they can catch. In a few words, let us tax this agricultural business of the South, which is so profitable, for the benefit of our fishermen, whose business if left to itself won't pay. And so annually large sums of money were taken directly out of the common treasury, ostensibly, but originally and really,

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from the pockets of the Southern planter, to pay the New Englanders for catching fish for their own uses. This went on many years under the plea that these fisheries were a nursery for seamen; and unless American seamen were fostered in such a nursery, the nation, it was said, could not have a navy. But when it was obvious that we could get seamen in abundance without drawing upon any such nursery, the South sought, but the North steadily and persistently refused, their assent to a repeal of the fishing-bounty Act. The South held that in the eyes of the Federal Government all citizens were equal, that all the States stood on the same footing, that the Union was formed, not for individual but for the common good, and that Congress had no right to tax any citizen or class of citizens for the benefit of another. The Federal compact required taxes to be equal, and all citizens, labors and industry, to be taxed alike. It was as much the duty of Congress to foster, encourage and protect the industry of South Carolina, as of Massachusetts — of one State as of another. Such was the Southern doctrine, and such were the teachings of the fathers. But the country went on growing and prospering, and there was simply from the South a protest against this heresy. Finally, in 1812, to protect Northern interests, and to vindicate the commercial rights of New England — for the South had neither ships to be searched, nor seamen to be impressed — we went to war with old England. The New England States ignobly backed out of that war, and left the others to bear the brunt of it. With peace there arose a school of protectionists; men who unwisely said, let "us not depend upon John Bull any more for anything whatever, let us henceforward do our own manufacturing, our own fetching and carrying. But to enable us to do these, we must encourage and protect the workshops and artisans of New England. And as the agricultural labor of the South is so very profitable, we may charge it with the support of this New England interest also. They have stood annual bounties to our fishermen for years, and we 'guess' they will stand protection for a while." Political economists may say what they will, but legislate and theorize as they may they cannot without robbery make any branch of labor profitable which is not self-sustaining; to make such indus-

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try profitable, some body must pay, and, as a rule, the money must come out of the pockets of those whose business is self-sustaining. But protection in this instance, they said, was only required to set this manufacturing business in New England on its legs — that it would soon be able to stand alone, when the power of protection might be withdrawn. So the South yielded, and consented again to be taxed; but this time the tax was under the form of a tariff, not of a bounty; though in the end it was the same, for it had to be paid by the self-sustaining labor of the country, and that was chiefly at the South. New Englanders are proverbially sharp, keen, and "cute;" so having once tasted of the treasury pap through cunningly devised tariff bills, they soon discovered that heavy expenditures from the Federal Treasury would necessitate high tariffs, then they went for an extravagant government, and engineered with Congress for large appropriations. To create demands upon the national purse, they established navy-yards where they were not required; built forts where not wanted; erected light-houses where they were not needed; and actually studded the Northern sea-board with establishments of this sort, while the whole Southern coast, from the Capes of Virginia all the way round to the mouth of the Rio Grande in Texas, was but badly lighted, though the navigation along the Southern Bays is most difficult and dangerous. There is also along the Southern coast a half-finished fortification here and there, and, as for a navy-yard, there is not one in which there could be found any of the usual facilities either for building or repairing, and neither of these operations could be performed except for double cost. As for light-houses, compare those of the Florida coast with those of New England, and you will better appreciate the force of those remarks. Pray look at this somewhat attentively, for it is one of the points of difficulty in the quarrel that is not apt to be perceived by one outside of the national family circle. Though neither the sole nor the chief cause, it is nevertheless, one of the many aggravating influences which helped to make it; along the coast of the Northern States, and within the distance of about two hundred and fifty miles, they have no less than four magnificent dock-yards, where millions of public money are annually expended. But along the Southern coast from Cape Hatteras to the Rio Grande, a distance of nearly

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two thousand miles, the South has but one navy-yard, and that only in name, for no vessel has ever been repaired there; and as for building, though it has been established about forty years, the first vessel constructed there has yet to be commissioned into service. In case of disaster to a man-of-war in the Gulf of Mexico or the West Indies, she has to go to a Northern ship-yard to be repaired and paid off. This is only another one of the many cute little Yankee tricks to which the Northerners have resorted to get the public money disbursed among them. As a rule, the great mass of the public expenditures were made at the North, not in the South, so that the Southrons found themselves doubly taxed — taxed first for the benefit of the Northern manufactures, and then, in the disbursement of the public funds, denied an equal participation in the benefits accruing therefrom. Thus fostered, pampered and petted, the Northerners began to think themselves altogether superior to the Southrons, for, said they, "look at our shipping and commerce — behold the beauty and magnificence of our cities — mark our workshops and railways — contrast them with the like at the South, and then say if those are not the evidences of a different and a better people — the indications of a superior race?" With this, they took up the notion that they could not associate with us in the common territories because of our slaves. We held slaves when they sought our alliance. They knew that, for they kidnapped them in Africa, they and the English brought them over in their ships and sold them to us. But notwithstanding this agreement, the Constitution and their obligations under it, they announced a "higher law," and pronounced their agreement with us under the Constitution a "covenant with hell." Will these people keep faith any better with money-lenders when debts pinch? With this temper in the Northern heart and mind, the Federal Government found itself seized with a vast extent of unpeopled lands, the common property alike of all the States. Much of it had been given to the Federal Government by the Southern States for the benefit of the Commonwealth; some of it had been acquired from the Indians by treaty and purchase — and some had been bought from France, Spain and Mexico; but all was paid for out of the common Treasury. Into these territories the North now insisted that the Southerners should not go unless they left their slaves behind.

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To this the South said "nay," for, continued we, these lands belong as much to us as to you — they are the common property of all the States; the Federal Government is only the trustee in the matter; it is bound to manage them for the good of the whole — it cannot discriminate between the heirs. Look at the deed, and title, and Constitution, and you will see that we have the same right to go and settle upon these lands with our servants as you have with your "helps" and apprentices, or with your oxen and asses. But in reply they began to preach about their new-fangled doctrine of a law more sacred and binding than oath on the Holy Evangely — and tell us that our slaves, if carried into a territory, would be degrading to them. Thus, by mere force of numbers, they voted us out of our lands, and appropriated them to speculation and their own purposes. These public lands, instead of a blessing to the Government, have proved a curse; they have had more to do in hastening on the present unhappy state of affairs than people generally are aware. They have given to the country an apparent prosperity by attracting to it hordes of emigrants from abroad, who, with their money, their industry, and their policy, imparted to the Republic a progress in wealth and population which astonished the world. Puffing up the people with national vain glory, the prosperity of the country induced them to overlook all else, and ascribe every thing to our peculiar form of Government and Yankee enterprises. These emigrants, with their votes, have often turned elections; before they had come to understand our institutions, their voice has had controlling influences with the Government. The public lands have caused the fall of the Republic, while yet in the vigor of youth, by means of their policy, which, within the last thirty years, has been pursued with regard to them. Up to that time the practice was to organize them slowly into territories, to admit them sparingly into market, and so to regulate the settling of them up as to prepare for their reception into the Union in pairs — one State with slavery, and one State without slavery, always together. This was done until the number of States had been increased from thirteen to thirty, and the Union consisted of fifteen States with, and fifteen States without slavery. The reason for this practice is obvious. It is found in this consideration — In the Senate every State was entitled to two votes and

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no more, though the free States, by virtue of this land policy and consequent more rapid increase of their population, had acquired the ascendancy in the lower House; yet so long as they were equal in the Senate, it was impossible for one section to combine for unfriendly legislation against the other, for all laws required for their passage concurrent majorities in each House. The House might be unanimously in favor of a measure, yet it fails to become a law if there be in the Senate even a majority of one against it. General Washington, in his virtue and wisdom, had warned the people against the dangers of dividing the country geographically into sections. They might and had arranged themselves into parties, but these were irrespective of parallels of latitude, isothermal lines, or the "peculiar institution." A division of parties by geographical lines, if it should take place, would, the fathers of the Republic saw, be most liable to take place on the Slavery question. Hence, for many generations, the policy was religiously adopted and rigidly pursued, of equalizing the number of free and slave States, and preserving that equality in one branch of the legislature. The law also forbid at least the immigration of Slaveholders with their slaves from Brazil, South America, Cuba, Jamaica, and elsewhere, but it encouraged the immigration of free white persons, from all parts of the world. Under these laws, the free States increased in population more rapidly than the slave States; for the emigrants generally being antislavery in their opinions, preferred to settle in the free States. Therefore the growth of these in population was greatly assisted by the tide of new comers from Europe, while that of the slave States was left to its own natural increase. Yet, nevertheless, Congress, until a quarter of a century back, was slow to organize new territories on the anti-slavery side of 36 deg. 30 min., or to open up the lands in these for settlements, and in order to preserve this equality of numbers between the States — pro and anti-slavery — the public lands were brought so sparingly into market, that the receipts therefrom were not more than sufficient to pay the expenses thereof. Such was the case until about 30 years ago. About that time, and in an evil hour, this wise policy was abandoned, and the people were tempted by the Government out

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into a sea of speculation upon the public lands such as the world never saw. Under it the laws of naturalization were relaxed. Ireland was drained of her increase, and all Europe was initiated, persuaded and tempted to come and help us to subdue, occupy and replenish the magnificent wilderness of America. In a single year, the sales of the public lands, which had never reached more than $3, went up to $26 millions. Land scrip and warrants were dispensed like waste paper. Every man who had ever served as much as two weeks in war, had land for a farm given to him. Besides bounty lands to the soldiers and sailors of every war, donations of public lands by millions of acres in the single grant were made to the new States or given to individuals and corporations to aid in the construction of railways and canals, and a variety of other enterprises. Companies for the sale of these lands were formed on both sides of the Atlantic. Drummers to beat up purchasers went out into all parts of Europe. Listening to their representations, and yielding to temptation, a throng of living souls such as has been rarely seen, was put in motion for the wilds of America. The extravagants of the Mississippi scheme were realized. Such a tide of emigrants soon swelled the population of the new territory to the number required to entitle it to one representative in the popular branch of Congress. Thereupon, the new territory was admitted into the Union as a free, sovereign and independent State; it was consequently received into the Senate upon an equality, as to votes and political power, with the oldest and most populous of the original States. Instead of dividing this free territory out into large States like Texas, it was divided into States only about one-fifth as large; consequently the balance of power in the Senate could not be maintained long under this system of inflowing population from abroad, nor could it last a moment after parties arranged themselves according to sectional lines; as soon as this balance was destroyed, the issue was made, and with 18 free States, as they are called, to 15 that recognized African slavery, Lincoln, at the head of a sectional party, was brought into power regularly, according to the forms of the Constitution, but upon a platform entirely subversive of it. Thus

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the land policy hastened the destruction of the unison by unwisely calling into play political powers that were bound to throw the Federal machinery out of adjustment. Nor is this all — it led political economists into error and induced the world to ascribe to the so-called "indomitable energy and enterprise of the New England people," what, in the reclaiming of a wilderness, belongs really to a host of European emigrants. Mischievous consequences are apt to flow from erroneous political assumptions. From this error influences highly prejudicial to the South have been drawn. If you will be patient with me for a little while, I think I can make this clear, and show that, for energy and industry, the South has nothing to lose in comparison with the North, but the reverse. You know it is a common idea that the Northerners are superior to us at the South in enterprise, industry, and in wealth. The evidences of this are held to be in the great number of Northern towns, in the great population of Northern cities, and the evidences of more vigorous life and activity which attend the business of commerce and manufacturing, in comparison with the stately occupation of agriculture. After the nation had furnished itself with food and raiment, it found itself annually possessed of two or three hundred millions worth of surplus produce; which, being thrown into the channels of commerce, was sent abroad for sale. This is to the nation what the amount and value of the crops which a farmer brings to market is to him an index of wealth. From the sale revenues are derived. Now, when we come to look at this produce and merchandise, we find that between two-thirds and three-fourths of the whole is actually the produce of Southern labor. How, then, since the great bulk of this surplusage comes from the South, should the greatest show of wealth be at the North? It is to the consideration of this question that I invite your attention. Having given it me, I aim to convince you that the great prosperity of the North arises not from any innate virtue of the Northern people, but in a great measure from the industrial effects upon the North of this great and growing tide of emigration. It is also due in no inconsiderable degree to the free trade that it has hitherto enjoyed with the South. But I now only treat of the former. In 1790, the population of the free States and slave States were

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just about equal. In round numbers, each section had two millions. Now they have, the former nineteen, the latter twelve. To what is this difference owing? Certainly to accessions from abroad, and not to natural increase; for statistics do not warrant us in assuming that there is any difference as to the ratio of natural increase in the sections. The six slave States of 1790 have expanded into fifteen, and the seven free States of that epoch into nineteen. The difference now between them in population is about seven millions. These seven millions represent the amount by which the total number of emigrants who have settled in the North exceeds that which has settled in the South. For the last thirty years this excess may in round numbers be taken at 200,000 a year. These emigrants chiefly belong to what may be called the laboring classes, and a body of emigrants, 200,000 strong, added annually to the population of any country, must have the effect, not only of greatly increasing the nominal wealth of such a country, but of adding vastly to its industrial capital also. This will appear more striking if we compare the manner in which the six original slave States have reclaimed nine others from the wilderness, and expanded themselves into fifteen, with the manner of alike reclamation and expansion by the seven original free States into nineteen. When the State of Mississippi, for instance, was to be colonized, the farmer, with his slaves, moved from Virginia and settled in Mississippi. By this operation he added nothing to the wealth or population of the slave States as a community. He simply took from one pocket and put into the other. That's all. But when the free State of Minnesota, for example, came to be colonized, it was settled up not by a transfer of labor and population from Massachusetts or any other Northern State, but by a positive accession of population, labor and capital from abroad. I do not mean to say that the citizens of the old free States never emigrated to the new. I simply mean to say that the emigration from abroad was sufficient to supply the place of those Northerners who did; while there was no sucia replacement of the settlers who went from an old slave State to a new one.

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To estimate the wealth derived by the North from this source, let us go into calculation as best w e may. A t the South an able-bodied negro man is held to represent an industrial capital of $1,500; for that is the sum for which his services for life will sell in market there. Therefore, in the case supposed, w e behold in the person of every able-bodied negro man, that has been taken from Virginia and carried to Mississippi, a simple transfer of industrial capital from one pocket to another of the South. Now, the services during life of an able-bodied emigrant is worth at least as much to the North as that of the supposed negro is to the South, viz: $1,500. But this $1,500, instead of being taken from one free State and added to another, is a positive addition to the wealth of the North; for it has been taken from abroad, brought here and emptied into the lap of the free States. There is still another difference between the sections which should be taken into the account, for it heightens the contrast. The labor of the Virginia slaves is lost to the South during the journey to the Mississippi. Not so with the emigrant to Minnesota. He pays with foreign money the Northern ship for bringing him over. Thus adding to Northern wealth; but the money, as well as the industrial skill and other property, which he brings from abroad, are direct contributions and positive additions to the sources of that Northern wealth and prosperity which w e have been thoughtlessly ascribing to the superior energies, thrift, and prosperity of the N e w England population. The industrial capital represented on the average by every man, woman and child that comes from Europe to settle in the free States and Territories of the North may, at a moderate calculation, be taken at $ 7 5 0 each. Here, then, has been for the last thirty years an annual accession from abroad, to the wealth of the North, of not less than $150,000,000, while the South had no such foreign source of supply; yet still the surplus which the South annually gave to the commerce of the country, and sent abroad, represented larger figures than these. What was it gave San Francisco and California their great growth and prosperity? What was it that gave your Melbourne hers? W h y surely not the indomitable energy of her former inhabitants, but the presence, the labor, skill and industry of those inhabitants whom the

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gold of those countries attracted there. Have we not had in our cheap lands, rich soils, and fine climate of the "great West," mines as attractive as those of California and Australia? Let the 200,000 or 300,000 emigrants that annually come over answer. The public lands have had just as much to do with the rapid growth, the great wealth and prosperity of the free States, as the gold mines of those countries had to do with theirs; this emigration is now to be stopped. The war will stop it, and the effects will be stopped. This war, with its taxes and its burdens, will usurp the very foundation of the Northern wealth and prosperity, not only by putting an end to emigration, but in other ways. The Northerners are a trading people. Under the Constitution, the North enjoyed a preference in the markets of the South. A preference amounting frequently to a monopoly — a monopoly with twelve millions of consumers, for the supply of all they want is a commercial boon which few nations can lose without great suffering. With that and the draw-backs of the war, the North, with its lands, will offer few inducements to the emigrants from Europe. The North owes no little of its apparent affluence also to the capital which foreign houses have brought from abroad and established there for the purpose of trade. As soon as it becomes certain — and soon it must to all — that free trade with the South is gone forever — that the merchants of New York and Boston, instead of having in the markets of the South a preference over the merchants of France, England and the Continent, will meet them there, in all probability, under withering discriminations — as soon, I say, as Northerners realize that, the foreign capital among them will take wings and fly away; it will either seek employment in the South or abroad certainly, but little of it will remain with the Yankees. The Northern Congress has imposed a direct tax upon its people of $30,000,000. Our Congress has taxed us for $20,000,000, to pay principal and interest on our debt. We at the South cheerfully and willingly submit to this tax, and every cent of it will be promptly paid. But, mark my word, the Northern people will be slow to put their hands into their pockets for this "rail splitter," as Abe Lincoln is called. Nevertheless he may sequeeze a portion of this tax out of them, but if so, it will be only a portion, and that will come with such writhings, grins and protestations, that he will never attempt to "raise the wind" again by any such process.

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But when the pinching time — the pay day — does come, will not the same motives which induced his people to proclaim a "higher law," and to denounce certain provisions of the Constitution as "a covenant with hell," induce them to repudiate this debt, principal and interest, which he is now seeking to create for his wicked purposes? I cannot but think so. Their faith was pledged to stand by the Constitution; yet, the moment they felt the Constitution operating as a restraint upon them, they violated it. Will they be more faithful to their promise to pay? Will they not, after the money is borrowed and spent, be more likely to turn upon the lenders and say, "this debt was created by a doubtful authority at best; it was created in the name of the United States when there was no longer any such government; it was created to support a war which the Constitution does not recognize — all this was known to you when you made the loan? Therefore, we won't pay." This debt, principal and interest, these Northern men will repudiate altogether, for already the war is beginning to be unpopular with the masses. Enlistments go on slowly in the North. The people are hanging back. It is worthy of remark, that almost every prisoner we have taken from them professes himself to have been deceived. He was entrapped into this war, and if he is ever permitted to reach home again, he will for one keep clear of any more such scrapes. Such is their language. But after the public lands and the enormous influx of foreigners upon us had destroyed the checks and balances of the Government, the cry of the "irrepressible conflict" was raised in the North. Either, said their leading but deceitful statesmen, we must overrun and overturn the institutions of the South and root out slavery, or the South will impose upon us its negroes. Upon this the Northern, or "free States," as they are called, combined; exceeding us in numbers of States and polls of people, they drew a geographical line, and formally divided the country into sections — North and South. This act, lawfully determined, placed, according to the forms of the Constitution, the whole Federal machinery — Executive, Legislative and Judicial — in the hands of a faction formed of fanatics, and banded together for the purpose of making war upon our rights, our property and our liberties. The end and aim of that Constitution was to "establish justice,

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ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The Federal machinery having fallen into such hands, and the Constitution having thus wrought out a failure, my noble, my gallant, my native State, speaking through her people, in Convention assembled, resolved to assert that precious right; which, though inalienable, and formally admitted so to be, by all the States, yet, to prevent cavil, she had, by express declaration, as I have already shown, reserved to herself, when she first joined the Federal Union. And that right was the right to withdraw from it. And now, what has the President of this party and the leader of this faction done? President Lincoln has, by his own mere dictum and that of his lieutenants, suspended the writ of habeas corpus. He has muzzled the press, and abridged the freedom of speech. He has, without authority of law, and against the Constitution, which he is sworn to defend and support, plunged the country into war, murdered our citizens, burned our houses, and is wasting their substance. He has, without warrant, seized unoffending citizens, and without acquainting them with the nature of their offence, has imprisoned them in loathsome dungeons. He has set aside the civil authorities and declared martial law to rule in their stead, and under the tyrant's plea, he is proceeding to do a great many acts and things which would more become the savage and the brute. He has sent against us an army, and provided them with manacles to bind us in his prisons. His Zouaves who fell at Manassas were equipped with halters already adjusted for our necks and the lamppost; and first having treated medicines, drugs and surgical instruments as contraband of war, he leaves, after defeat in battle, his wounded to be cared for by us, whom he had sought to deprive of remedies. After his defeat in the battle of Bull Run he sent neither flag to bury his dead, nor physicians to treat his wounded. In short, Lincoln and his myrmidons are preparing to enact upon us the scenes of La Vendee in the French Revolution. Though not so mighty in numbers nor so rich in warlike supplies as the enemy, we are eight millions of people thrice armed in that our quarrel is just. Fighting for our homes we are mighty in battle.

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In mere lust the enemy is fighting for power and conquest — we for firesides, the graves of our fathers, dear life and all that is precious to the heart and to civilization. Our cause is holy — theirs' hellish. We cannot, we will not be subjugated. The contrast is frequently drawn by our old men between the conduct of the English in the war of 1812 and the conduct of the hordes of Lincoln now. The English invaded us, but respected the property and regarded the rights of unarmed citizens. The same counties have been invaded by Lincoln. He has devastated and laid them waste, and for what? Why simply to compel us to submit to his governance. Suppose he should succeed, would not success overturn the whole fabric of the Constitution? The Republic was founded on the consent of the governed. Failing in this, it is no longer either a Republic or any other form of government that has at its foundation the will of the people. It is a tyranny. We want nothing of the North. We choose not to submit to Northern domination; we are fighting simply to be let alone, and to be permitted to govern ourselves in our own way. To hear the Northern people talk about "fighting for the Union," "fighting for the flag," "fighting for the Constitution," &c., words without meaning — one is reminded of the tinkling brass that has sound without music. We fight apparently at great odds, for we fight without a Navy. Still, whenever we have met the enemy in the open field, we have beat him back, though he numbered three and in some cases even five to our one against us. He has never yet been able to stand our rifle shooting or our cold steel. The best blood in the land is in the ranks of our army. You find whole companies consisting of planters of the South, arming and equipping themselves each at his own expense, and offering their services, men and officers, without pay, for the war. The women, from the most delicate and refined, to the most robust and humble, have united together by common consent, and formed themselves into societies for the support of the war. Free of cost, they have, with their own hands, made the clothes and the tents of the army. At their own expense they have established hospitals and become nurses for the sick and wounded. The South presents the remarkable spectacle of an army having

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in its ranks the first men and best talents of the country. To subdue or conquer such an army is simply an impossibility, for its soldiers are fighting for all that makes life dear to them. I fight with a price upon my head and a halter around my neck. Nor I alone, but every man of mark or substance among us. Lincoln's men are neither made of such stuff, for they are for the most part mere hirelings, and their armies in battle are strengthened by no such hope, and moved by no such fears as those which inspire us. They talk of a reconstruction of the government and a reunion of the people. — Simply, and in few words, re-annexation to the British crown is more possible. I very much desire that the friends of free government in Europe should be correctly informed as to the true state of things with us, for your information being chiefly derived through our enemies, it is of course one-sided and generally, also it is not only erroneous, but willfully mendacious. The papers at the North that plead our cause, or dare tell the truth about this war, are suppressed by Lincoln's more sic jubeo. A large majority of us they would have you believe are opposed to secession and this war. Saving some of the Western counties of this State, and a few in East Tennessee, I have never known the people so united upon any subject. The women if possible are more enthusiastic than the men; they are of one mind, and the clergy are as earnest as the women. In the week the clergy are, of their own free will, drilling and being drilled to arms — their churches are given up to the women, who with needles and sewing machines congregate there to make clothing for the soldiers. On Sundays, from the pulpit, the holiness of the war, and the righteousness of our cause are preached to the people. In battles you find clergymen among the foremost of the fight. We have on our side a Bishop for a general, holy Divines for colonels, majors, captains, and soldiers, in the ranks. Never was a people more united and in earnest than the people of the Confederate States are at this moment. Yes you have heard something too of our starving, of our inability to produce bread-stuffs and provisions enough for our own use, &c. To make you believe that would be requiring you to renounce your belief in physical geography, for that shows that within the Confederate States we have the finest of climates; our lands are unsurpassed in fertility; we are a grazing and a farming

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and a planting people. Educated in the South I never saw a beggar until I entered the navy and went to New York — such is the habitual abundance that the very few poor who are found among us are provided for without calling on the people for poor rates. Our Southern laws recognize no such tax. The staples of Georgia are cotton and rice, yet the census shows that, according to population, Georgia furnishes as much wheat as New York, and New York is one of the wheat growing States of the North. Never have the grain crops of the South been more abundant than they now are. The blockade of our ports — admitting it to be effectual — would not interfere with us as to any of the necessaries of life. It may cut off our supplies of tea and coffee, and the various articles of foreign merchandise that we have been accustomed to receive from abroad, but this does not amount even to a privation, for we submit to these wants as a self-denial and a discipline that is all for our good. I see no end to this wicked and savage war as long as the arch spirits which surround Lincoln remain in power. Before and after every battle, we hold but the olive branch, demanding, simply, "LET US GO." We do not desire to subjugate or invade his people. We are simply trying to cut loose from them, and to have nothing to do with them or their institutions one way or the other. As a proof which we wished to give them and the world of our forbearance and sincerity, behold the movements of the enemy since the battle of Manassas. We have not been disposed to follow up that signal victory by a single act of invasion. Rely upon it, the old Union is irretrievably gone, and secession is rapidly gaining ground. The thinking men in several of the free States are daily beginning to cast about for fresh compacts, for new political and social combinations; and among the new developments which the morrow may bring forth, be not surprised to see Pennsylvania, and perhaps New Jersey, seeking admission into our new Republic as one of the States of THE Confederacy. Pennsylvania has always been clamorous for protection. The tariff that would set mills to going in New England, would not turn a wheel in Pennsylvania, and the old Government had not the power to discriminate in our markets between Pennsylvania productions and those of New England. They all stand upon the same footing. Our new Government can discriminate. If Pennsylvania be admitted, she will have free trade with us. The New England States

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and all other free States will be taxed for every article they bring. For they will have to pay duties. Pennsylvania not. This will transfer from all other Northern States the capital and machinery that have been employed there in manufacturing for the South, and set it down in Pennsylvania. Pennsylvania will then contain the Birminghams, and Sheffields, and Liverpools of the South. She will enjoy preference and protection also with us, in whose markets the wants of not less than fifteen millions of people will have to be supplied. With these and other advantages, Philadelphia, instead of New York, might become the great commercial emporium of America. The bare suggestion of such a course by Pennsylvania opens up a vista that is full of thought. By that course, Pennsylvania will escape her share of the five hundred millions with which Lincoln is burdening his people, in this the first year of the war. He will require as much more the next year, and the next, and, mark the prediction, you are yet to see Pennsylvania knocking at our doors for admission into our Confederacy; for if we were to admit her she would by that means escape her quota of the Lincoln debt, and leave the other free States "the bag to hold." If Pennsylvania were to withdraw, she would separate the Eastern from the Western free States, for you observe that she with Delaware extends from the sea to the lakes. In that event, instead of one, there would be two free State Republics; indeed, before the Yankees can lay the fell spirits they have raised by this wicked war upon us, they may be divided into a dozen petty powers, for their liberties are already gone, and they will be, both they and Lincoln, completely at the mercy of the first batch of successful generals that the fortunes of war may bring into their favor. Therefore, tell your countrymen from me to think twice, and look long at their sovereigns, before they touch either the loan, the bonds, or the paper of that concern. With the friendship and esteem of other days, my dear Admiral, yours truly, M. F. MAURY, C. NAVY. Admiral Robert Fitz Roy, R. N., Meteorological Department, Board of Trade and Admiralty, London.

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TO THE PEOPLE OF KENTUCKY. T o THE P E O P L E OF KENTUCKY:

By your representatives in the last Legislature you conferred on me the commission of Senator in the Congress of the United States. In March last, when my term of service began, the Union had been dissolved by the withdrawal of seven States; which the policy of coercion has since increased to twelve States. At that time a majority of the people of Kentucky still cherished the hope of a peaceful reunion. Soon afterwards, when the Government at Washington commenced that series of usurpations which has now left nothing of the Federal Constitution, and resolved on a war of subjugation against the withdrawing States to secure union and brotherhood, you determined to take no part in the war, but to protect your liberties by a position of armed neutrality. This decision was expressed by a large majority of the people at the election in May. I had opposed this policy before the election, but afterwards, in common with the great mass of those with whom I had acted, I acquiesced in your expressed will, and have maintained it as the fixed attitude of Kentucky. In obedience, as I suppose, to your wishes, I proceeded to Washington, and at the special session of Congress, in July, spoke and voted against the whole war policy of the President and Congress; demanding, in addition, for Kentucky, the right to refuse not men only, but money also to the war, for I would have blushed to meet you with the confession that I had purchased for you exemption from the perils of the battlefield, and the shame of waging war against your Southern brethren by hiring others to do the work you shrank from performing. During that memorable session, a very small body of Senators and Representatives, even beneath the shadow of a military despotism, resisted the usurpations of the Executive, and with what degree of dignity and firmness, they will willingly submit to the judgment of the world. Their efforts were unavailing — yet they may prove valuable hereafter as another added to former examples of manly protest against the progress of tyranny. On my return to Kentucky, at the close of the late special session of Congress, it was my purpose immediately to resign the office of Senator. The verbal and written remonstrances of many friends in

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different parts of the State induced me to postpone the execution of my purpose, but the time has arrived to carry it into effect, and accordingly I now hereby return the trust into your hands. And in this connection, since the Government at Washington has thrown a dragnet over the whole surface of society, to collect proof against individuals of connection with the Government of the Confederate States, and since a portion of the Northern press has charged that certain private correspondence, recently seized at Philadelphia by the Federal authorities, will convict me of political crimes, I deem it due to you and to myself to declare that I have not done or said anything inconsistent with the relations I have borne to the State and to the Federal Government, or which could reflect a stain upon the commission which I now surrender. I do not resign because I think I have misrepresented you. On the contrary, I believe that my votes and speeches in the Senate have expressed your deliberate will as attested through the ballot box. I resign because there is no place left where a Southern Senator may sit in council with the Senators of the North. In truth, there is no longer a Senate of the United States within the meaning and spirit of the Constitution. The United States no longer exists. The Union is dissolved. For a time after the withdrawal of the Southern States, and while there was a hope that the rupture might be healed, it might be assumed that the Union was not yet dissolved, and such was the position of Kentucky in declaring her neutrality and offering her mediation between the contending parties. But time has now elapsed, and mighty events have occurred, which banish from the minds of all reasonable men all expectation of restoring the Union. Coercion has been tried and has failed. The South has mustered in the field nearly as many combatants as the North, and has been far more victorious. The fields of Manassas and Bethel, of Springfield and Lexington, have worked with a sanguinary line the division between the old order of things and the new. It is the right of Kentucky and her peculiar duty to recognize these great facts and to act on them. The constitutional compact which created and upheld the old Union is at an end. A large number of the original and additional parties have withdrawn from it. So large a number that its stipulations can no longer be executed, and under such circumstances no court has ever decided a contract

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to be binding between the remaining parties, or attempted to enforce its execution. The Constitution requires positively that each State shall have at least one representative in Congress, but now twelve States have none; that each State shall have two Senators, but now twelve States have none; that all duties, imposts and excises shall be uniform throughout the United States, but now in more than one-third of them none are or can be collected. Commerce cannot be regulated between the respective States. Uniform rules of naturalization and bankruptcy cannot be adopted. Post-offices and postroads, in nearly half the States have been given up, and a preference is given to the ports of one State over those of another. Even the election of a President has become impossible. The Constitution is mandatory on all the States to appoint electors, and requires a majority of the latter to elect; but more than onethird of the States refuse to appoint, and hence no election can be made by the people. If the election goes to the House of Representatives, the Constitution requires that at least two-thirds of the States shall be represented in that body. The Constitution can no longer be amended; for it requires three-fourths of the States to concur, and more than one-third of the States have withdrawn from the Confederacy. All the safeguards provided for by the States in the instrument, still further to secure public and personal liberty, have been destroyed. The three departments of the Federal Government, which were carefully separated and their boundaries defined, have been merged into one, and the President, sustained by a great army, wields unlimited power. The exemption of persons from arrest without judicial warrant, the right of a citizen to have his body brought before a judge to determine the legality of his imprisonment, the security provided against searches and seizure without warrant or law, the sanctity of the home, the trial by jury, the freedom of speech and of the press — these and every other precious right which our fathers supposed they had locked up in the Constitution have been torn from it and buried beneath the heel of military power. The States made the Constitution, placed rigid boundaries around that Government, and expressly reserved to themselves all powers not delegated. They did not delegate to the Federal Government the power to destroy them — yet the creature has set itself above the creator. The atrocious doctrine is announced by the President and acted

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upon that the States derive their power from the Federal Government, and may be suppressed on any pretence of military necessity. The gallant little State of Maryland has been utterly abolished. Missouri is engaged in a heroic struggle to preserve her existence and to throw off the horrors of martial law proclaimed by a subordinate military commander. Everywhere the civil has given way to the military power. The fortresses of the country are filled with victims seized without warrant of law, and ignorant of the cause of their imprisonment. The legislators of States, and other public officers, are seized while in the discharge of their official duties, taken beyond the limits of their respective States and imprisoned in the forts of the Federal Government. A subservient Congress ratifies the usurpations of the President, and proceeds to complete the destruction of the Constitution. History will declare that the annals of legislation do not contain laws so infamous as those enacted at the last session. They sweep away every vestige of public and personal liberty, while they confiscate the property of a nation containing ten millions of people. In the House of Representatives it was declared that the South should be reduced to "abject submission," or their institutions be overthrown. In the Senate it was said that, if necessary the South should be depopulated and re-peopled from the North, and an eminent Senator expressed a desire that the President should be made a dictator. This was superfluous, since they had already clothed him with dictatorial powers. In the midst of these proceedings, no plea for the Constitution is listened to in the North; here and there a few heroic voices are feebly heard protesting against the progress of despotism, but for the most part, beyond the military lines, mobs and anarchy rule the hour. The great mass of the Northern people seem anxious to sunder every safeguard of freedom; they eagerly offer to the Government what no European monarch would dare to demand. The President and his Generals are unable to pick up the liberties of the people as rapidly as they are thrown at their feet. The world will view with amazement this sudden and total overthrow of a Constitution which, if respected, might have been the boast and safeguard of the United States for many generations. When the historian comes to investigate the cause of this result, he will record the fact that no department of the Federal Government has ever exhibited a case of aggression

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by the Southern States upon their Northern associates, and he will trace the dismemberment to the ignorance or disregard upon the part of the latter, of the true principles of a confederacy, to longcontinued and flagrant violations of the Constitution, to avarice, fanaticism and general corruption. Against all these usurpations I protested in your name, in the presence of their authors, and at the seat of their powers. I protested in vain, and never again will I meet in council with the usurpers. And now, fellow-citizens, I am sure you will pardon me if I add a few words in reference to the condition of our State and my own course. The Constitution of the United States has been destroyed, and by no act of Kentucky. The power she delegated in that instrument to the Federal Government had vested to her, and any exercise of power over her by that Government without her consent is usurpation. In the wreck of the Federal system, she exists an independent commonwealth, with the right to choose her own destiny. She may join the North. She may join the South. She may poise herself on her own centre, and be neutral. In every form by which you could give direct expression to your will, you declared for neutrality. A large majority of the people, at the May and August elections, voted for the neutrality and peace of Kentucky. The press, the public speakers, the candidates, with exceptions in favor of the Government at Washington so rare as not to need mention, planted themselves on this position. You voted for it, and you meant it. You were promised it, and you expected it. The minority acquiesced in good faith, and at home and abroad this was recognized as the fixed position of the State. It was taken at the beginning of hostilities, and it is but reasonable to infer that every subsequent act of outrage by the Washington Government has confirmed your original purpose. Look now at the condition of Kentucky; and see how your expectations had been realized — how these promises had been redeemed. First, by the aid of some citizens of the State, arms belonging to the whole people were illegally and secretly introduced by order of the President and distributed to one class of our people upon the false pretence that they needed them for protection against their own fellow-citizens. This was the first violation. Next, Federal military officers began to recruit soldiers and establish camps in our midst, and Federal money was lavishly expended,

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in the hope to demoralize and corrupt the people. A studied system of deception was practised as long as possible on the people. For a time it was denied that they were Federal camps, and it was said that they were merely voluntary assemblies of Kentuckians for their own protection and that of the State. These monstrous falsehoods have since been freely exposed. This was the second violation. Previous to those events the State was in a condition of tranquility and peace. No indications existed anywhere of internal disorder. But now the people, becoming alarmed at these proofs of a purpose to force Kentucky into the war, began to assemble in great massmeetings and to demand loudly the promised neutrality. The Washington Government, however, and its abettors in Kentucky, supposing their schemes to be ripe for execution, now resolved to have what they called "active loyalty." About this time the Legislature met, and the drama there moved rapidly on. The camps were avowed to be Federal camps. The guns which had been clandestinely and illegally introduced, now called out to maintain "active loyalty." Federal officers began to swarm among us. Every appliance of corruption, every allurement of ambition, was brought into play. Presently a Federal army was in possession of large portions of the State, and the conspiracy stood fully revealed, while the people, whose only error had been their generous credulity, stood thoroughly betrayed. It is known to citizens of Louisville, of all parties, that just before that meeting of the Legislature, a member of the Washington cabinet, said to a prominent citizen of Kentucky that the position of the State should not be maintained, that the Government preferred hostility to neutrality, and that Kentucky must be compelled to support the Federal Government in the war. Your wishes, fellow-citizens, had been spurned and you have been thrown into this vortex by the Government at Washington, aided by their Kentucky sympathizers. The pretended reason for the military occupation of the State, founded on the occupation of Columbus by Confederate troops, is uncandid and false. For besides the fact that the invasion of Kentucky was a foregone conclusion at Washington, and that camps of soldiers were under arms in our midst to invade Tennessee, it is notorious that General Grant left Cairo to seize Paducah before the occupation of Columbus, while in taking the latter place the Confederate troops anticipated the Federal troops by less than an hour.

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For further proof of the insincerity of the false clamor about the invasion from Tennessee, the Confederate commander announced to your authorities that he occupied Columbus purely in selfdefence, and stood ready at any moment to withdraw simultaneously with the Federal forces. To say that the Washington Government had a right to invade the State is to say that you had no right to be neutral, and to submit to the invasion from a power which has effaced every vestige of the Constitution, would be to bow in the dust and surrender to a simple despotism. It is not necessary to say much about the Legislature. A majority of them, instead of protecting the rights and persons of the citizens, have either voluntarily or under duress been engaged in sustaining the usurpations of the Federal Government, in passing bills of pains and penalties to terrify a spirited people into servitude, in depriving the Governor of his just constitutional authority, and in abdicating their share of the Government by formally inviting a Federal military force to take possession of the State, well knowing as they did that this military force would supersede the State Government. Of that body nearly one-fourth have retired because of the military occupation of the State and the seizure, imprisonment, pursuit and exile of many of the most eminent and patriotic citizens of the State by that military force. The voice of these members can no longer be heard in the councils of the State, nor their votes be taken. The Legislature is thus, to say the least of it, a mutilated department of the State Government. It is true that there remains a sufficient number for a quorum, but are they free? For when the Federal Government takes military possession of a State, its Legislature must conform to the will of the military chief or be suppressed, as we have recently seen in the case of Missouri, whose State Government was dispersed and martial law proclaimed; and still later, in the case of Maryland, when thirtyeight members of the Legislature were seized and imprisoned on the mere suspicion of intending to legislate at variance with the will of the military Government. We cannot, therefore, know that the public resolutions or pretended laws of the two bodies are the declarations of their active will, because we have the strongest reason to believe that, if not in accordance with the will of the Government at Washington, they would meet the fate of the Legislatures of Missouri and Maryland. On the other hand, we know

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that these resolutions and laws are in conflict with their public pledge, and with the expectations of the people. It is more charitable to believe that the members at Frankfort, or a majority of them, are actuated by a fear of military force, rather than by a perverse design to violate the will of their constituents, and degrade the State to the condition to which it is attempted to bring down Missouri and Maryland. If anything were wanting to strengthen this view, it will be found in attendant events. The resolutions they adopted on the 8th of September, sanctioning the entrance of General Anderson's forces, were accompanied by one declaring that no person should be touched in his life, liberty or property on account of his political opinions. Yet, on the very day, I believe, that these resolutions passed, the agents of the General Government seized the printing establishment of the Louisville "Courier," the only offence of whose proprietor was, that he criticised with freedom the usurpations of the Government at Washington. At the same time, and ever since, citizens of Kentucky have been imprisoned or compelled to fly from their homes and families, against whom there was no accusation but of holding opinions either unfriendly to Mr. Lincoln's Government or friendly to neutrality. It is impossible to suppose that a free Kentucky Legislature, in view of recent proceedings in other States, would have turned this State over to the possession of a Federal military force, or betrayed the people by throwing the State into the arms of Mr. Lincoln, to be used for Southern subjugation, or consented to the suppression of the press, or suffered, without an outcry that would have pierced the skies, the indignities and outrages which have been inflicted upon the people by Federal soldiers. Fellow-citizens, you have to do now, not with this fragment of a Legislature, with its treason bills and tax bills, with its woeful subserviency to every demand of the Federal despotism, and its woeful neglect of every right of the Kentucky citizen; but you have to deal with a power which respects neither Constitution nor laws, and which, if successful, will reduce you to the condition of prostrate and bleeding Maryland. Gen. Anderson, the military dictator of Kentucky, announces in one of his proclamations that he will arrest no one who does not act, write or speak in opposition to Mr. Lincoln's Government. It would have completed the idea if he had

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added, or think in opposition to it. Look at the condition of our State under the rule of our new protectors. They have suppressed the freedom of speech and of the press. They seize people by military force upon mere suspicion, and impose upon them oaths unknown to the laws. Other citizens they imprison without warrant, and carry them out of the State, so that the writ of habeas corpus cannot reach them. Every day foreign armed bands are making seizures among the people. Hundreds of citizens, old and young, venerable magistrates, whose lives have been distinguished by the love of the people, have been compelled to fly from their homes and families to escape imprisonment and exile at the hands of Northern and German soldiers, under the orders of Mr. Lincoln and his subordinates. While yet holding an important political trust, confided by Kentucky, I was compelled to leave my home and family, or suffer imprisonment and exile. If it is asked why I did not meet the arrest and seek a trial, my answer is, that I would have welcomed an arrest to be followed by a judge and jury; but you well know that I could not have secured these constitutional rights. I would have been transported beyond the State, to languish in some Federal fortress during the pleasure of the oppressor. Witness the fate of Morehead and his Kentucky associates in their distant and gloomy prison. The case of the gentleman just mentioned is an example of many others, and it meets every element in a definition of despotism. If it should occur in England, it would be righted, or it would overturn the British Empire. He is a citizen and native of Kentucky. As a member of the Legislature, Speaker of the House, representative in Congress from the Ashland District, and Governor of the State, you have known, trusted and honored him, during a public service of a quarter of a century. He is eminent for his ability, his amiable character, and his blameless life. Yet this man, without indictment, without warrant, without accusation, but by the order of President Lincoln, was seized at midnight, in his own house, and in the midst of his family — was led through the streets of Louisville, as I am informed, with his hands crossed and pinioned before him, was carried out of the State and district, and now lies a prisoner in a fortress in New York harbor, a thousand miles away. Do you think that any free Legislature assembled in Kentucky since the

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days of Charles Scott and Isaac Shelby, until now, would have permitted such a spectacle to dishonor the State? No! Fellowcitizens, the Legislature could not have been free! I would speak of these things with the simple solemnity which their magnitude demands, yet it is difficult to restrain the expression of a just indignation while we smart under such enormities. Mr. Lincoln has thousands of soldiers on our soil, nearly all from the North, and most of them foreigners, whom he employs as his instruments to do these things. But few Kentuckians have enlisted under his standard, for we are not yet accustomed to his peculiar form of liberty. I will not pursue the disgraceful subject. Has Kentucky passed out of the control of her own people? Shall hirelings of the pen, recently imported from the North, sitting in grand security at the capítol, force public opinion to approve these usurpations and point out victims? Shall Mr. Lincoln, through his German mercenaries, imprison or exile the children of the men who laid the foundations of the Commonwealth, and compel our noble people to exhaust themselves in furnishing the money to destroy their own freedom? Never, while Kentucky remains the Kentucky of old — never, while thousands of her gallant sons have the will and the nerve to make the State sing to the music of their rifles! The Constitution of the United States, which these invaders unconstitutionally swear every citizen whom they unconstitutionally seize to support, has been wholly abolished. It is as much forgotten as if it lay away back in the twilight of history. The facts I have enumerated show that the very rights most carefully reserved by it to States and to individuals, have been most conspicuously violated. And this destruction has been accomplished, not by the President alone, but by the Congress also, and with the approval of the Northern States and people. They have deliberately made the contest a constitutional struggle between so many millions on the one side and so many on the other — one party fighting for subjugation, the other in self-defence and for independence. Whatever may be the future relations of the two confederacies, the idea of the restoration of the Union under the old Constitution is wholly visionary and delusive. If the North should conquer the South, (which it will perceive to be impossible after a few hundred millions more shall be expended and a few hundred thousand lives lost,) the

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character of the Government would be radically changed. It would probably not take the form even of a mixed government, but would soon end in a military despotism. It would soon become apparent to all thoughtful men that the last hope of constitutional liberty lies in the early recognition of these great truths — in an honorable peace and friendly intercourse. You declared your purpose not to engage in the war to subdue the South, and that you would be neutral, and mediate in the interests of peace when an opportunity should offer. This is the recorded will of the State as expressed by the people. But those who assume to represent you have violated that will. They have attempted to burden you with enormous taxes to prosecute a war you abhor, and to sustain a government which has trampled under foot every safeguard of a Constitution which was the only bond of our political connection with it, while they have allowed that Government to cut you off from the only avenues of trade which would enable you to pay these taxes. They have invited a military force of that Government to take possession of the State, and practically supersede the State Government, and they have seen, with complacency, these foreign soldiers seize, imprison and pursue hundreds of your fellowcitizens — fugitives, without a crime — over the plains and mountains of Kentucky. In a word, they have attempted, without consulting you, and against your recorded wishes, to place you in active hostility to your Southern brethren, and to fix your political destiny with the North. Whatever may be the condition or motives of the members at Frankfort, they have exceeded their authority. No legislative assembly or other body, other than one elected by your sovereign voice for that purpose, has the right, in this great revolution, to determine finally your political future. The people, although taken by surprise, and almost unarmed, have risen to vindicate their wishes, and expel the Northern invaders. The eagerness with which their aid has been invoked by those who have plunged the States into the present unhappy condition, is the strongest proof of their condition that but for the presence of these soldiers, the action of the members at Frankfort would be repudiated by the people. When the Northern invaders shall be sent back across the Ohio river — when the State shall be relieved of all troops from abroad, and the people of Kentucky, by a fair election, shall determine

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their destiny, it will be the clear duty of every citizen to acquiesce or to retire from the State. For those who, denied by the Legislature the protection due to the humblest citizen, have been delivered over to the tender mercies of foreign mercenaries, and hunted like partridges on the mountains, what remains but imprisonment, exile or resistance? As one of them, I intend to resist. I will avoid conflict with Kentuckians, except in necessary self-defence, but I will unite with my fellow citizens to resist the invaders who have driven us from our homes. To this course we are impelled by the highest sense of duty, and the irresistible instincts of manhood. To defend your birthright and mine, which is more precious than domestic ease, or property, or life, I exchange, with proud satisfaction, a term of six years in the Senate of the United States, for the musket of a soldier. This letter is written at the first moment since my expulsion from home that I place my feet upon the soil of Kentucky. I have not been able to see or communicate with my friend and colleague, Mr. Powell, nor do I know what course he will think it proper to take. But this you and I know — that his conduct will be controlled by pure motives. Your fellow-citizen, JOHN C. BRECKINRIDGE

BOWLING GREEN, KY., Oct. 8, l 8 6 l .

Pamphlet 8 Horace Binney The Privilege of the Writ of Habeas Corpus under the Constitution. Philadelphia, 1862 [From the outset of the war, President Lincoln met threats against the Federal government within the North by resorting to extralegal restrictions. He considered existing laws inadequate to restrain Confederate sympathizers and did not seem to have confidence in local courts. On April 27, 1861, he suspended the writ of habeas corpus in the turbulent area between Washington and Philadelphia. Military authorities and secret operatives of the State Department arrested numerous political prisoners whom they refused to produce in court. Subsequently the President suspended the writ of habeas corpus in additional specified areas. There was much protest, so in February, 1862, he overhauled procedures. A commission released large numbers of political prisoners, and thereafter only the War Department possessed authority to make arrests. Firm policies that remained standard for the duration of the war went into effect in September, 1862. President Lincoln proclaimed that all those discouraging enlistment, resisting the draft, or engaging in disloyal acts were subject to martial law and liable to trial by courts-martial or military commissions. Habeas corpus was denied to these people. Altogether well over thirteen thousand persons were arrested and incarcerated during the war. Exponents of civil liberties were vociferous in their protests. In his first message to Congress, July 4, 1861, President Lincoln defended his actions: "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? . . . It was not believed that any law was violated. . . . Now it is insisted that Congress, and not the Executive, is vested with this power

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[to suspend the writ of habeas corpus]. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion." 1

The administration was embarrassed when Chief Justice Roger B. Taney, while on circuit court duty in Baltimore, in the case of Ex Parte Merryman ( 1 7 Fed. Cas. 144) emphatically pronounced Lincoln's suspension of the habeas corpus to be unconstitutional. Taney argued by tracing the history of the writ through English and colonial history that the right of suspension was vested exclusively in Congress. Attorney General Edward Bates developed arguments on behalf of the executive power, but these like Lincoln's statements seemed to a political scientist, Francis Lieber, with whom the attorney general conferred, to be an inadequate rebuttal.2 In July, 1861, Lieber obtained for the attorney general a carefully reasoned, point-by-point refutation of Taney. The author was a retired Philadelphia lawyer, Horace Binney (1780-1875), a man of outstanding reputation; at that time he was in his eighties. Binney's views, to which the attorney general gave his approval, were probably the most cogent legal defense of President Lincoln's actions. Binney made them public in a pamphlet he published at the beginning of 1862. It aroused so much attention that it drew at least ten rejoinders; before the end of the year Binney countered with two supplements to his original pamphlet.3 It was years before the Supreme Court acted upon these civil liberties questions. In 1864 it refused to interfere with the trial of a civilian by a military commission (Ex parte Vallandigham, 68 U.S. 243); in 1866, with the war over, it assumed a firm civil liberties position (Ex parte Milligan, 7 1 U.S. 2). Throughout the war, civil liberties questions were endlessly and hotly debated by the pamphleteers.] T o FRANCIS LIEBER,

LL.D.,

Professor of History and Political Science in Columbia College, N e w York. 1 [Roy P. Basler, ed., The Collected Works of Abraham Lincoln ( New Brunswick, New Jersey, 1953), IV, 430-431.] 2 [U.S. Department of Justice, Opinion of the Attorney General on the Suspension of the Writ of Habeas Corpus (Washington, 1 8 6 1 ) , reprinted in Series 2, War of the Rebellion: Official Records. . . . (Washington, 1880-1901), II, 20-30.] 3 [J. G. Randall, Constitutional Problems under Lincoln ( rev. ed., Urbana, Illinois, i95i)> 1 1 8 - 1 3 9 ; Freidel, Lieber, Binney (Philadelphia, 1903). Lieber himself was embarrassed because a decade earlier in a well-known treatise he had declared flatly that the power belonged to Congress. Lieber, On Civil Liberty and Self-Government (Philadelphia, 1 8 5 3 ) , I, 1 3 0 - 1 3 1 . ]

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M Y DEAR L I E B E R :

W e have talked and written much to each other on this Habeas Corpus question. It is a political rather than a legal question, — a mixed political and constitutional question. On propositions of this nature, you are a better authority than I am; that is to say, you are an authority, and I am not: though, if it were a question of common law, you would understand it as well as if you had been bred to the Bar. There are difficulties in the question, arising mainly from the concise though comprehensive words of the Constitution, referring to things understood to explain them, without explaining them itself with precision. No one should be dogmatical, or very confident, in such a matter; but perhaps one who has lived as long as I have under the Constitution, may be permitted to put some of his thoughts into the common mass, that the best opinion may be extracted from the whole. It is by the elimination of errors, on both sides of a question, that we come to the truth. No one whom I know is more competent than yourself to detect the errors in this paper; and if you shall think that they pervade or comprehend the whole argument, I shall still remain With sincere regard and respect, Your friend and servant, HORACE

BINNEY.

PHILADELPHIA. D e c . 2 3 , 1 8 6 1 . INTRODUCTORY.

THE right of the President of the United States, in time of rebellion, and when the public safety in his judgment requires, to arrest and detain a freeman, in temporary denial or delay of bail, trial, or discharge, that is to say, of his privilege of the Writ of Habeas Corpus, has been exhibited by writers in our Journals, in three points of view: 1. As the lawful exercise of military power, derived to the President as commander in chief of the military force now on foot for the suppression of insurrection: 2. As an incident of martial law, in time of war within the country, repelling the interference of the civil authority in all cases in which the restoration of order requires the application of the military principle: 3. As a civil power springing from the Habeas Corpus clause in

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the Constitution, and to be authorized by Congress, in like manner as by the Parliament of England, by delegating to the President the power to arrest and detain persons, within the limitations prescribed by the Constitution. The Attorney-General's opinion is not comprehended by this division. That opinion is founded on the alleged co-ordination of the three departments, and upon the co-equal authority of the Executive, to interpret the Constitution in what regards the Executive duties and powers, and especially his duty and power to protect and defend the Constitution, and to suppress insurrection and rebellion against the government of the nation; and in the execution of this duty and power, to arrest and detain persons who are in either actual or suspected complicity with rebellion. The bearing of the Habeas Corpus clause in the Constitution, is not particularly expounded in that opinion, nor is it specially relied upon for the President's authority; neither is the President's power treated as a military power, but as a civil power, exercised in the performance of the civil duties of his office. It is not the purpose of the following remarks, to treat the subject from either of the first two points of view, nor to affirm or reject the argument of the Attorney-General. The exclusive design of the writer is to consider the right of the President to arrest and detain, of his own motion, in the required conditions, as derived from the language of the Constitution, and from the nature of the Executive office. There are two modes of treating this matter. One of them is the merely legal and artificial. The other is the constitutional and natural. In the first mode may be presented an argument against the President's power, until Congress have authorized it, which it may not be easy to answer, if the premises are admitted. The argument is as follows: The language of the Habeas Corpus clause in the Constitution, says nothing, directly and explicitly, in regard to the department of government, which is to exercise the power it gives; but it must be viewed in the light of Parliamentary law in England, and by reference to the customary sense in which such language was received in the country from which we have taken the great body of our

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laws. This, it must be presumed, was the sense in which the Convention used this language in the formation of the Constitution. Suspended, applied to the privilege of the writ of Habeas Corpus, means the temporary withdrawal or withholding of the legal operation of that Writ from an imprisoned person. The Writ is instituted by law. Law alone can withdraw or withhold its operation, in any case to which it applies. There must, therefore, be a law or statute to countervail the law by which the Writ is given, before the operation of the Writ can be withdrawn or withheld from a person who is imprisoned. To create a suspension of the privilege of the Writ in the case of an imprisoned person, there must then be, 1, a statute or law which withdraws the privilege from the contemplated case of imprisonment; and 2, an arrest and imprisonment within the purview of that statute. Effectual suspension is, therefore, a conjoint operation of law and act; the operation of a law to suspend the Habeas Corpus privilege in reference to the contemplated arrest, past, present, or to come, and the operation of the act of arrest or imprisonment referred to by the law. This is the meaning of Suspension of the privilege as it was understood and practised in the Parliament of England, when our Constitution was formed. Although our Constitution does not expressly say which department of the government may suspend the privilege, it necessarily implies, by the use of such language, that the Legislature shall first pass the law, and that the executive officer shall then perform or order the act of imprisonment and detainer. This is the merely legal and artificial argument. But the language of the Constitution, in this particular, was not the customary language of the day, either in England or in the United States; and the Parliamentary practice was the very thing that was to be strenuously rejected and excluded. The language of the Habeas Corpus clause in the Constitution was new, and is peculiar; and it must be viewed in its own light, and in the light afforded by other parts of the same Constitution. The Constitution does not use the word suspended in an artificial or technical sense, for it had none in this relation; nor as consisting of two acts, an act of legislation, and an act of imprisonment; but

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as one thing under the sanction of the Constitution. The warrant of arrest, with the order that the party's privilege be denied for a season, is suspension under the Constitution. A temporary denial of the privilege by a single act, founded on the authority of the Constitution, is all that is necessary to suspend the privilege. The power to imprison, and to deny or delay a discharge from imprisonment, is an executive power. All the conditions of the exercise of the power described in the Habeas Corpus clause, are of executive cognizance, that is to say, rebellion or invasion, and the requirement of the public safety in the time of either. No legislative act is necessary or proper to give the cognizance of these facts to the executive department. No act of Parliament has ever been passed in England, or has been proposed in Congress, to take away or abridge the executive power in regard to these facts. All the acts of Parliament which deprive persons of the right to bail or trial, in derogation of the Habeas Corpus Act of Charles II, leave this power and discretion to the Crown. They cannot be taken away by Congress without invading the constitutional limits of the Executive office. They cannot be given by Congress to the Executive without supererogating what the Constitution gives. The only thing required to bring this power and discretion into operation in the conditioned cases, against the privilege of the Writ, is an authority superior to the law which authorizes, or may authorize, the Writ; and that is the authority of the Constitution in the Habeas Corpus clause. The power to suspend the privilege of the Writ, is moreover inseparably connected with rebellion or invasion, — with internal war. The direction of such a war is necessarily with the Executive. The office cannot be deprived of it. It is the duty of the office, in both its military and civil aspects, to suppress insurrection, and to repel invasion. The power to suspend the privilege, is supplementary to the military power to suppress or repel. It is a civil power to arrest for privity or supposed privity with rebellion, as the military power is to suppress by capture for overt acts of rebellion. They should reside in the same magistrate, as inseparable incidents of the Executive power, in time of internal war. The aversion to this doctrine, where it exists, is a reminiscence of the English practice, when the Crown claimed the right to suspend the privilege in time of profound peace and order; or it is a misconception of the grounds of Parliamentary action, since the Habeas Corpus Act of Charles II.

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The true character of every act of Parliament in this relation, and of the only bill that has been proposed in Congress, has been executive, and so it must be. They have said, in effect, and must say, that the act of the King's Council, or of the President, shall be final. The only aspect in which an act of Congress to this effect can be regarded as legislative, is as the grant or creation of an authority to detain against the writ; but this is supererogation, because the Constitution gives it. The only question is, to which department of the government, the exercise of it belongs, by the general scheme of the Constitution; and according to the delineation of the departments in that instrument, the exercise of the power appertains to the President. This is the broad constitutional and natural argument; and it is in support of this hypothesis that the following remarks are made. THE PRIVILEGE OF THE WRIT. THE clause in the Constitution of the United States in regard to the privilege of the Writ of Habeas Corpus, is this: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it." The sentence is elliptical. When the ellipsis is supplied, it reads thus: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it; and then it may be suspended." This is the necessary effect of the conjunction "unless," which reverses the action of the preceding verb; and it will be of perfectly equivalent import and effect if the clause be transposed as follows: "The privilege of the Writ of Habeas Corpus may be suspended in cases of rebellion or invasion, when the public safety may require it; and it shall not be suspended in any other case." The clause contains an expression that belongs to the law, — "The Writ of Habeas Corpus." "The Writ of Habeas Corpus," simply and without more, means the Writ of Habeas Corpus ad subjiciendum. This was and is the meaning universally when we speak of a Writ of Habeas Corpus in the United States, without any affix. This Writ commands that the body of a detained or imprisoned

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person be brought before a court or judge, with the cause of his commitment or detainer, to be subjected to the order of the court or judge in regard to the disposal of his person. By Habeas Corpus acts generally, the privilege of every freeman is to be delivered on bail, put upon his trial, or discharged, without arbitrary delay; and this is the privilege which the Writ of Habeas Corpus is used to enforce, — to be bailed, tried, or discharged without arbitrary delay. The United States, while the Constitution was in the course of formation, had no Writ of Habeas Corpus, or Habeas Corpus Act; and the clause therefore does not refer to any particular law, statute, or writ that was in operation or use in a particular place. It used the expression generally as language of the law in the States, in which it had a certain meaning. The privilege mentioned in the clause is, therefore, the privilege of an imprisoned or detained person, of being bailed, tried, or discharged without arbitrary delay. The words "shall not be suspended," as applied to the privilege, are not words of the common law, or of any other system of law in particular. They are not technical. They are words in general or popular use; and whenever used in reference to a privilege, signify the same thing as hung up, deferred, delayed, denied for a season. It is not uncommon in England and in this country to speak of the suspension of the Habeas Corpus Act, a loose and inaccurate expression, because the Habeas Corpus Act is never suspended. The Parliament of England, by its imprisonment acts, depriving certain persons, committed by warrant of the King's Privy Council or Secretary of State, of the privilege of bail and trial, do not speak of suspending the Habeas Corpus Act of 3 1 Charles II, or of suspending the Writ of Habeas Corpus, or of suspending anything. Blackstone, in one instance, speaks of "suspending the Habeas Corpus Act for a short or limited time;" when, in fact, the Habeas Corpus Act of England has never been suspended for a moment. He spoke loosely and inaccurately. The English imprisonment Acts, made during the rebellion for the Pretender, did suspend a Statute of Scotland to prevent wrongous imprisonment, so far as regards treason, in order to oust the jurisdiction of a local authority over a particular crime; and the expression was right. But they used no such words as to the English statute or writ. Suspending the privilege of the Writ, is not an English law ex-

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pression. It was first introduced into the Constitution of the United States. The privilege is personal and individual, not local, but subsists in remedy. The right of being exempt from arbitrary imprisonment is a natural right, and is predicable by the Common Law of every freeman; and to hang up, defer, delay, deny for a season, the privilege which a statute gives, or is expected to give, in relief of imprisonment, is to suspend it in the sense of this clause of the Constitution. Freedom is the right, either absolute or qualified. The remedy is privilege. This, then, is the whole meaning of the clause in our Constitution, — the privilege of being bailed, tried, or discharged from imprisonment without delay, shall not be discretionally denied, or hung up or deferred, unless, when in cases of rebellion or invasion, the public safety may require it; and then, or in those circumstances, it may be denied or deferred for a season, or temporarily. The people of the United States have said this by their Constitution of government. The power to say this belongs to the United States by the grant of the people. They have said that the privilege of being bailed, tried, or discharged when in cases of rebellion or invasion the public safety may require it, may be denied, deferred, or hung up for a season. The Constitution of the United States authorizes this to be done, under the conditions that there be rebellion or invasion at the time, and that the public safety requires it. The Constitution does not authorize any department of the government to authorize it. The Constitution itself authorizes it. By whom it is to be done, that is to say, by what department of the government this privilege is to be denied or deferred for a season under the conditions stated, the Constitution does not expressly say; and that is the question of the day. The Constitution uses the one word suspended, to signify one act, by one agent or body, with one effect, consummate by one operation, — imprisonment without bail, trial, or discharge, for a season; which act it authorizes in certain conditions of the nation. It is impossible to suppose, that in speaking of suspending the privilege of the Writ, it meant by one act of law, as if it had spoken of the Writ alone, or of the Habeas Corpus Act. And it is equally impossible that it meant the general or universal privilege in the United States at large. This would have been an infinite absurdity, comprehending and involving all freemen, friends as well as foes of

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the government, and even the very persons who should suspend the privilege. Neither did it mean to speak of two acts, one of authority and one of execution, for its own words are the authority. The privilege is necessarily personal or individual; and by ordaining that this may be suspended on certain conditions, it leaves nothing contingent except those conditions, and nothing unexpressed except the department by which the conditions were to be declared to exist, and the act of imprisonment to be executed. The question is, which is that department? It must be remarked that this whole provision is unlike any provision of the Constitution of England, or of the Common Law. The bearing of the Constitution of England upon the Writ of Habeas Corpus, and upon the executive power of the King to suspend the personal privilege of a subject, supplies a very defective and a very deceptive analogy for the interpretation of the Constitution of the United States; a very different Constitution as we know, and which has adopted new and quite original language in relation to the privilege. The doctrine of the English Common Law is the universal exemption of the freemen of England, at all times and without any exception, from discretionary imprisonment by any body. The language of the 39th clause of Magna Carta is to the same effect: "ntjllus liber homo capiatur, vel imprisonetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur nec super eum ibimus, nec super eum mittemus, nisi per legale judicium partum suorum vel per legem terrae." "From the era, therefore, of King John's charter," Mr. Hallam says, "it must have been a clear principle of our Constitution that no man can be detained in prison without trial." Midd. Ages II, 324. And this conforms precisely to the two resolutions carried by Sir Edward Coke in the House of Commons in 1628, which were afterwards the foundation of the English Habeas Corpus Act of 3 1 Charles II. I. That no freeman ought to be committed or detained in prison, or otherwise restrained, by the command of the King or the Privy Council, or any other, unless some cause of the commitment, detainer, or restraint be expressed, for which, by law, he ought to be committed, detained, or restrained. II. That the Writ of Habeas Corpus cannot be denied, but ought to be granted to every man that is committed or detained in prison,

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or otherwise restrained, by the command of the King, the Privy Council, or any other. 2 Pari. Hist. 259. Exemption from discretionary imprisonment without bail or trial, is therefore an undoubted principle of the Common Law. Before the era of King John's Charter, there may be historical uncertainty in this matter. The previous age was one of the exercise of large arbitrary power by the King. The Norman conquest sat down on the free code of the Saxons, in the cunabula of the common law, and pressed it heavily. Temporary imprisonment at the King's pleasure had doubtless occurred in many cases; and in time of rebellion, of which the Norman Kings had more than one sample, it is quite probable that such imprisonment may have been acquiesced in for the public safety; and that the King's right may thus have acquired some sanction from usage, giving color to the exercise of the same power, when there was no rebellion. But the English Barons, in their contest with King John, had the magnanimity to put the matter beyond doubt, not only as to themselves, but as to the freemen of England generally; and it is for this reason that Mr. Hallam has signalized that epoch. The principle allows of no exception or qualification on account of rebellion or invasion, when war is within the kingdom, nor on account of any other cause or matter whatever, not even the public safety in time of rebellion or invasion. It is a glorious principle, and worthy of all aspiration, like perfectness. But it is too perfect for human society, at least for the condition which human society has usually assumed for several centuries. It was the occasion of fierce struggles between kings and people in England before Magna Carta and after; and the struggle was not finally ended until the latter half of the 17th century, by the defeat of the King's arbitrary power, and by the deposit of arbitrary power over the same principle, not in the people who originally held it beyond all arbitrament, but in the Parliament of England, as if they were incapable of abusing it. Less likely Parliament may be; less able, Parliament is not. The Constitution of England appears to be now what it always was in regard to this principle; and English lawyers and statesmen still say, that it is a principle of their Constitution, as it always was, that no man can be detained in prison without trial. But there is another principle which they assert with equal strength and constancy, that what

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Parliament declares to be the Constitution of England, is the Constitution of England; or, rather, that what Parliament enacts, the courts of England cannot adjudge to be unconstitutional and void; and, therefore, that although by the Common Law and Magna Carta and the Constitution of England, no man can be detained in prison without trial, yet that Parliament may constitutionally, or imperially, authorize the King's Privy Council, or one of his Secretaries of State, or perhaps anybody at their pleasure, to imprison a freeman in time of peace, when there is neither rebellion nor invasion, nor anything like war in the kingdom, but only seditious agitations for reform, or clamors against a ministry, with scarcity and derangement of trade, accompanied by treasonable or suspected treasonable practices; and may detain him without trial or bail for six months, or a year, or for any time they see fit, renewable forever at the pleasure of Parliament. The principle, therefore, of the old common law, that every freeman is entitled at all times and in all cases, to be exempt from discretionary or arbitrary imprisonment, has, in England, come practically to this, — that he is entitled to it, unless Parliament shall, in their discretion, see fit to take it away for a time, by giving the power of such imprisonment to the King in Council, or to one of the King's principal Secretaries of State, or perhaps to anybody they see fit. There is no intention in saying this, to find fault with the English Constitution, which must be taken as a whole, and is truly a magnificent work, the result of vast experience, wisdom, and genius for the government of freemen; but the intention is to state an indisputable fact, to which the people of these United States were wide awake when they made their Constitution, and regarded it as a very exceptionable fact, and wholly inadmissible by them. They meant to exclude Parliamentary law, to qualify the principle as the public safety of the country required, and to declare the conditions or qualifications of the principle for themselves. To state this, is to clear away something from the deceptive analogy of the English Constitution and the course of Parliament. The formal contest for the possession of this discretion to imprison and detain without trial, was long in England; but does not require long to state. It was first between the King and the Lords or Barons, and then between the King and some of the people, and

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finally between the King and the Parliament; and this Parliamentary contest with the King began and ended with that family of Kings, in whose reigns, or at the end of them, Englishmen settled the great principles of their government. The Habeas Corpus Act of 3 1 Charles II, as well as a more pointed and anti-regal statute of 16 Charles I, which followed the Petition of Right, was made during this contest, in jealousy of the Royal hereditary power, as the Constitution of that monarchy had immemorially established it. It was in jealousy of the Royal hereditary power generally, but was quickened and invigorated greatly by jealousy of the race of Kings then on the throne. Nearly the whole of that century was an age of transition from the irregular and disputed pretensions of the English Crown, sometimes controlling and always menacing the Commons, frequently using and perpetually threatening the use of arbitrary power, to the principles of constitutional government as asserted by Parliament, and as denied by the Crown; and Parliament succeeded. It cannot be said that the people succeeded in the same degree. That nation has now arrived at a stage, in which the contest for influence in the government is between different classes of the people; and the great question between them is, whether the people at large have as large a share in the government of themselves as they ought to have and can bear; but for nearly the whole period of the second Stuart King, it was a contest between the Parliament and the Crown; and the security of the person of the subject from arbitrary imprisonment by the King, and of his property from the arbitrary exactions of the King, were the points upon which all political movements turned. Neither the 16 Charles I, nor the 3 1 Charles II, did more than affirm the immemorial custom or principle of the common law which has been adverted to, and the King's incapacity to supersede it at his discretion; but the later statute has derived its reputation and popularity from fencing the privilege of the Writ of Habeas Corpus with the most jealous guards against the dependants of the King, his Judges, who held their offices during his pleasure, and his officers of his sole appointment, who, in subservience to his wishes, had, in conspicuous instances, made the common law of no avail against the Crown. Two changes in the Constitution of England, making good behavior the tenure of judicial office, and requiring the assent of a branch of the Legislature to the King's appointments to

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office, might perhaps have obviated the necessity of nearly all the provisions of the great Habeas Corpus Act. If anything makes this doubtful, it is the constitutional power of the Crown, which is large and has a pervading influence, though much of it is disguised from our observation, by its exercise through ministers who are in Parliament, and the leaders of that body. But with these provisions in the Constitution of the United States, and with the Habeas Corpus clause just noticed, the Federal Constitution has gone on for seventy years without a Habeas Corpus Act, and without anything of that kind, but a naked authority to the Courts and Judges of the Federal Judiciary, to issue, among other writs, the writ of Habeas Corpus. The jealousy toward the King in regard to this Writ, so deeply rooted in the English heart during the struggle with the Stuarts, has continued to exist, and still exists in the people of that kingdom, as a principle, without the same personal causes in the conduct of the reigning monarch; but considering what the office of the King of England is by the settled Constitution of the Kingdom, there is no doubt good reason for it even at this day; and there always will be. The royal power in England, whatever we may say of it, is still a great power, and must remain a great power if that nation would remain what it is. With a people jealous of their personal liberty, and intent upon maintaining it, this jealousy has, and will always have, a foundation in a justifiable fear of the royal prerogatives and influence. The exclusive right to declare war, and to make treaties with foreign powers without the advice and consent of either branch of the legislature — the power to build ships and to regulate a navy — the power of calling forth the militia for any cause which in the King's judgment makes it expedient — the sole and exclusive power of appointments to office, both civil and military — the power of appointment to great office in the established Church — the power of conferring upon such subjects as the Crown favors both rank and title, and hereditary authority as law-makers in one branch of the legislature — and the power of absolute veto upon acts of Parliament; it is these prerogatives which make the King's hereditary office, in connection with an hereditary aristocracy, a source of apprehension to the Commons of England, and justify their jealousy in maintaining the guards of the Habeas Corpus Act,

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and in extending them, as they did so late as the 56 George III, from commitments for any criminal or supposed criminal matter, to commitments for any cause whatever. At the same time it must be remarked that the people of England have not in this matter shown, or been permitted to give effect to, the least jealousy whatever of the absolute power of Parliament. While the 31 Charles II by express provision places the Writ of Habeas Corpus at the call of anybody committed for any criminal or supposed criminal matter, and now for any cause whatever by the 56 George III, so that the occurrence of rebellion or invasion, or any the most extreme crisis of public danger, cannot deprive any one of the privilege of the Writ for an instant, nor give the King the power to detain the most reasonably suspected and dangerous man in the kingdom, Parliament has an unlimited power to suspend the privilege without either invasion or rebellion, or any crisis of danger, other perhaps than such as may attend an unpopular ministry for persevering in unpopular measures. Parliament is under no guard or restriction whatever in point of time or circumstance. Parliament and the people, in the late, or even present, condition of representation in England, are not precisely the same. The people and a majority of Parliament are not always the same in sympathy. It is no answer to this remark on the Constitution of England, to say that the King and Parliament must unite before the privilege of the Writ can be interrupted. The King may be a party to it for purposes of his own, in opposition to the interests of his people; and so may his ministry; and so may a majority of Parliament, in a certain condition of representation in Parliament. This condition of government may last and has lasted for some years at different epochs, and has been exhibited clearly and distinctly in the early part of the present century. In matters which concern anything so precious as personal liberty, and its protection in general against arbitrary imprisonment, it is a desideratum in every free Constitution, to guarantee the privilege of the Writ of Habeas Corpus, absolutely, to the whole extent that the government will be and remain in its normal condition of internal peace, and in the regular administration of law. When it is thrown out of that condition by rebellion or invasion, facts easily made certain beyond cavil, tending to the derangement of the course of justice, and requiring a resort to military force, and, to some extent, discretionary civil

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authority, the security of both the people and the government demand a temporary limitation of the privilege to prevent its being abused to increase the disorder of the times. At such seasons it is of less importance in what branch of government the power of applying the limitation is vested. That must depend upon the nature of the government and upon the distribution of its powers; but it should obviously be with that department of the government which is the least able of itself to abuse the power, and is the most easily and directly made amenable to responsibility and correction for abuse. In fine the Common Law principle requires qualification for modern times, and most of all in governments which are the least strong, and among a people who are the most free. The English Constitution still asserts its universality, and restricts it at pleasure by the omnipotence of Parliament. Of course such a power is liable to abuse, and to be without remedy, however rarely it may be abused. In former years, after the Revolution of 1688, and when the contest between classes in England was not as warm as it has become in more modern times, — from the time of the Revolution to the close of the eighteenth century, the power of Parliament was used very much in the spirit of the limitation adverted to; but in the early part of the present century, in one or more instances, it is supposed to have departed from it. When there was neither rebellion, nor invasion, nor war, and when the danger of foreign war was removed by the overthrow of Napoleon, the 57 Geo. Ill, 3 May, 1817, gave the power to the King's Privy Council and Secretaries of State, to detain without bail or trial, persons committed by their warrant for treasonable or suspected treasonable practices, during the limitation of the statute; and it was to a great extent a question of the ministry, and of party. The country was deranged by scarcity and embarrassments of trade, and agitated by their common consequences, frame-breaking or rick-burning, and cries for reform. There were probably treasonable practices at the same moment; but the imprisonment statute in the 57th year of the King, was obviously promoted, and but shortly preceded, by an acquittal of Dr. Watson from the charge of treason, by a jury of Middlesex, after a week's trial, strong evidence of his guilt, and a pointed charge to the jury against him by Lord Ellenborough. The Courts were open and unobstructed; but the juries

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could not be relied on to convict the guilty. It was a case of immense party agitation. Sir Samuel Romilly, and others, equally loyal to the Constitution, though not friendly to the ministers, opposed the statute vehemently as a party or political measure. So also they opposed the Seditions bill, a bill it might be said, in pari materia, carried in the same month; and the bill for imprisonment without trial was continued by another statute in the same session, to March in the following year. And this is the scope of Parliamentary power over the privilege of the Writ of Habeas Corpus. The Habeas Corpus Act of England, with this discretionary power of Parliament, affords no analogy for the United States, who have qualified the principle, so as to secure it against the discretionary power of any body, except when the nation is forced away from its normal and orderly condition by internal war, rebellion, or invasion. In such a condition, the government cannot, — properly speaking, will not, and cannot extensively, — abuse the exception. Such disorders as rebellion or invasion, touch the life of the government itself; and the exception cannot be either usefully or constitutionally applied, except to defeat a sympathy with domestic or foreign enemies, to the overthrow of the fundamental institutions of the people. More of this constitutional dependence of the exception upon rebellion, presently. There is another particular in which it is necessary to disregard the analogy of the English law, a particular in which we are most likely to be led astray, and have been, in fact, to some extent, led astray, by supposing an analogy, where there is none. It is the manner in which the privilege of the Writ is overruled in England, and which must be done by a Legislative Act, — by an Act of Parliament. It can be done in no other way. The Habeas Corpus Act of Charles II is an Act of Parliament; and by the Constitution of England, nothing but a subsequent Act of Parliament can abolish, restrain, or impair such a preceding Act. There is no Constitution above it, that imparts an authority to arrest its operation in any case, nor upon the occurrence of any event whatever, except in this one way, by a subsequent Act of the same body which enacted it. If a written Constitution in England, superior to an Act of the Legislature, — if even the statute of 31 Charles II, — or any subsequent Act of Parliament, had declared that the privilege of the Writ of Habeas Corpus shall not be sus-

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pended, unless when in cases of rebellion or invasion the public safety may require.it, and under such a provision, it had been uniformly held that Parliament alone could declare the fact of rebellion or invasion, and the fact of public danger, or what the public safety required, there would have been an analogy which we might examine and consider. But under our different Constitutions, there is none. There is nothing of higher authority in England than the Statute of 31 Charles II, except a subsequent statute; and until such subsequent statute, its provisions are of absolute authority over King, and Privy Council, and Secretaries of State, and everybody. That statute gives to everybody committed to prison for any criminal or supposed criminal matter, which a subsequent statute extends to every commitment, not only a right to the Writ of Habeas Corpus, but a right to immediate bail, or speedy trial, or discharge from imprisonment. The statute contains no exception whatever. Nothing but a subsequent statute can make an exception. There is no ground or place to argue that the King's power to watch over the public safety, and to provide for it by all the means at his disposal, or his authority to proclaim rebellion or invasion, or even to call out the Militia, has any the least virtue to stay any part of the operation of the Habeas Corpus Act. The Constitution of England is absolutely silent, where the Constitution of the United States has at least spoken. The Constitution of England is more than silent in this matter; it says that nobody but Parliament shall speak in regard to it. Our Constitution, on the contrary, speaks to all subordinate authorities created by it. It does not say "the Writ of Habeas Corpus," or "the Habeas Corpus Act," shall not be suspended, a Writ and Act of Legislative ordination, whether made or to be made, and presumably to be repealed or suspended by similar authority only; but it speaks of the privilege of the Writ, by one word comprehending the whole protection of the principle, and declares that it may be suspended; by this one word suspended, also comprehending by the exception, all temporary and occasional disturbances, by imprisonment, by denial, delay, or hanging up for a season. Suspension is authorized by the Constitution by the same clause which guarantees the principle; and as the expression of the principle includes all its rights, the expression of the exception includes all temporary delays and denials of the rights which are included in the exception.

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The Constitution is itself the authority, and all that remains is to execute it in the conditioned case. In regard, therefore, to the qualified right of being exempt from imprisonment without trial, unless in cases of rebellion or invasion, when the public safety requires such imprisonment, we must discard English analogy. The Constitution of the United States must be judged by itself, by its own distribution and ordination of the powers of Government, by the jealousies or confidences which appear in it, by its own language in fine, and not by the English Constitution or by the powers of Parliament. There is still another particular in which we must guard against English analogy, when we come to examine the question of power under the Habeas Corpus clause. It has already been suggested that the great motive of England for pressing the Habeas Corpus power into its present condition, was jealousy of the Crown. It was this feeling, as every one knows, that led Parliament in the 16th Charles I, to reduce the King's power of detainer by warrant, expressly to the same rank as that of any subject of the realm. It operated with more than the same force at the close of Charles II, whom the nation, not twenty years before, and from their undoubted preference of hereditary monarchy, had recalled from exile to the throne. England deliberately preferred hereditary monarchy, with all its powers and dangers, to any other form of government; but it was the sense of these dangers, specially excited near the close of his reign by the occurrence of a particular case — Jenks's case — and by the prospect of a Roman Catholic successor in the King's brother, the Duke of York, afterwards James II, that impelled them to drive home, as it were, every stake that would prevent the King or his judges or officers, from removing the barrier of the Habeas Corpus Act from between the King and the people. The author of the 31 Charles II, Lord Shaftesbury, would have altogether excluded the successor, the Duke of York, from the throne, by act of Parliament; and so would the House of Commons that passed the Habeas Corpus Act, if the vote of that house alone had been sufficient. But the House of Lords could not be brought to concur. Next to the benefit of exclusion was the benefit of the Habeas Corpus Act; and they passed it with as little respect for the Common Law principle, and with as much regard for their own power

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as any Parliament that ever sat; for in the very next year after that Act, the House of Commons, by its own authority, and by the speaker's warrant, seized in all parts of England and imprisoned multitudes who had dared to express in their addresses to Charles, their deep abhorrence of those who had offensively importuned him to call a Parliament. They were called abhorrers. The Parliament dreaded the King's power, and loved their own, more than they loved the general liberty of the subject; and their fears were very reasonable. But in regard to the power of the President, as the draft of the Constitution had substantially settled it by major consent before the Habeas Corpus clause was proposed, there was absolutely nothing in the powers of the office which could justly excite jealousy, that he might abuse the power of suspending the Habeas Corpus privilege with a view to enlarge his other powers. The President has no powers that can be abused or enlarged by himself, except with more danger to himself than to the country. Elected directly or indirectly by the people for a short term of years — unable to veto a law of Congress if two-thirds of each House shall concur in passing it against his advice — unable to make war, or to arm a soldier, or to call forth the militia for any purpose, or to build a ship, or enlist a sailor or marine — unable to make a treaty, unless two-thirds of the Senators present concur, or to appoint an ambassador, minister, consul, judge, or any other officer, without the advice and consent of the Senate, unless it may be inferior officers, if Congress shall choose to grant him the power — commander in chief of the army, but without power to arm a soldier — and of the navy, but unable to build a ship — commander also of the militia of the States, if Congress shall see fit to call them into the service of the United States — unable to adjourn Congress unless both Houses disagree — and impeachable for any misconduct in office by the House of Representatives, and triable and punishable by the Senate beyond the power of pardon, — this is the array of Presidential powers, as the draft of the Constitution substantially presented them, when the Habeas Corpus clause was proposed and carried. We cannot be surprised that in view of this scheme, an eminent English statesman and man of letters has said, that our Constitution of government exhibits "the feeblest Executive, perhaps ever known in a civilized community." Bulwer Lytton has

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said this, after seeing the Constitution on its printed pages. M. de Tocqueville has said the same, in more measured terms. We who are living under it, know that in the course of seventy years, no President but Washington could have obtained the office for a third term of four years, by the use of all the power of the office whether in war or peace, or by the devotion of his patriotic services. Whether Washington could have obtained it, remains an historical doubt. His prudence, and his experience of the office, withdrew him from the canvass. Jealousy of that office during the earlier part of the Convention, and in certain of the States before the adoption of the Constitution by nine States, was a topic with those who did not wish any Constitution or Union; but for sixty years at least, it has been beyond any sensible man's power of face to profess it gravely. It is but reasonable to give weight to this consideration when the power of applying the exception shall be considered. The Convention which prepared the Constitution were aware of all the circumstances which have been noticed, — the universality of the Common Law principle, and the necessity of exception to it in times of great public disorder and violence, when war should be within the country, and the public safety placed in jeopardy, as well as the ordinary course of justice impeded. They were aware also of the manner in which the Constitution of England, under the Statute of Charles II, had exposed the principle to dangerous prejudice by the discretionary power of Parliament; and they deemed it wise to qualify the principle itself so as to protect the safety of the public in a season of great disorder, and yet to prevent its defeat by any power in any other condition of the country. The Common Law principle was suggested in the Convention in full universality, without exception of any kind, and three States adhered to it in their final vote; but the majority deemed it better for the Union to qualify and abridge the principle constitutionally, by annexing to it an exception most strictly limited to the occurrence of certain great and critical disturbances in the public condition of the country, and to let the public safety, at the times of such disturbance, and in those only, overrule the principle for the time and season. Their departure from the English Constitution and rule, altogether set them aside as a safe analogy in the application of the clause finally adopted.

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The history of the clause is not without interest, and pretty strong application. The Convention to form the Constitution began its session on the 14th May, 1787, on which day there was no business done, nor any subsequent meeting until the 28th May. On the following day, the 29th May, Mr. Charles Pinckney, of South Carolina, exhibited a "Plan of a Federal Constitution," the 6th article of which, concerning the legislature, contained the following paragraph: "All laws regulating commerce shall require the assent of twothirds of the members present in each house. The United States shall not grant any title of nobility. The legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the Writ of Habeas Corpus ever be suspended, except in case of rebellion or invasion." The different subjects of this paragraph have no common relation between them, except that they are all restrictive; but the last clause is substantially new in two respects: first, in speaking of the privilege of the Writ of Habeas Corpus, and of the suspension of the privilege, which are not expressions of the Common Law, nor of Blackstone, its commentator, nor of Parliamentary law; and, secondly, in limiting the privilege to the case where there is neither rebellion or invasion. Deviating from the English Constitution and practice also, it proposed this universal safeguard of the privilege, that it should never be suspended unless when rebellion or invasion was upon us, and war, either foreign or civil, was within the country. War alone, if it was not attended by invasion, was not to have any influence upon the privilege; nor, perhaps, though in this respect the language may be too indefinite for legal distinction, any of those local seditions against particular laws of government, which commonly obtain the name of insurrections. The privilege was to remain in rigor, and to be intangible by any power whatever, executive, legislative, or judicial, except when a foreign enemy should invade the country, or when such formidable insurrections exist as deserve the name of rebellion. Derivatively, the word signifies a renewed war, an uprising in war by a nation once subdued in war, which was the Roman sense; of course, a war against the Government of Rome. Dr. Webster makes the discrimination between rebellion and insurrection, that

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"rebellion is an open and avowed renunciation of the authority of the government to which one owes allegiance, or the taking of arms traitorously to resist the authority of lawful government; revolt. Insurrection may be a rising in opposition to a particular act or law, without a design to renounce all subjection to the government. Insurrection may be, but is not, necessarily, rebellion." The Constitution, in defining the powers of Congress to call forth the militia, uses the lower term, insurrection; and so do the Acts of Congress of 1792 and 1795, which authorize the President to call forth the militia of the States; and very properly, as it was necessary to provide for an outbreak in its lowest type; and as all insurrections may become rebellion, the force raised to suppress insurrection may lawfully suppress it in all its forms and powers. This, it has been remarked, was a deviation from the English Constitution, and from the Parliamentary practice or course also. Nor is the variation factitious or fanciful merely. It is a just political expression of the principle of the universal personal liberty of freemen under laws of their own making, qualified by the internal perils of their own government. War, generally, was not to be a limitation of the privilege, and ought not to be. War, beyond the limits of a country, leaves the courts and the laws of the country in full operation; but invasion by a foreign army, or rebellion against the government, overthrows or disturbs both the courts and the execution of the laws. In such cases the personal liberty of the freemen of a country becomes secondary to the public liberty of the nation, and must yield for the time to a higher interest and a higher principle, the public safety. As the Constitution finally reported says, it must yield so far in particular instances, as "the public safety may require it." The principle of the Common Law is not the principle of the Constitution of the United States. The principle of the English Constitution is not our Federal principle. Ours is a qualification of that principle, universal and unchangeable in its application. The principle of the English Constitution is universal in name, and changeable at the pleasure of Parliament. Whether Mr. Pinckney was the first to express this limitation of the right of personal liberty, is not material. He would be more entitled to credit for first introducing it with his Plan of a Federal Constitution, if he had not subsequently appeared willing to throw it away.

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The import of his clause is, nevertheless, in one respect obscure, by its imperfect grammatical dependence upon the previous clause. It expressly prohibited the Legislature from passing any law on the subject of religion, or touching or abridging the liberty of the press; and then, uniting the clause with what preceded it by repeating the same conjunction, nor, he separated it by a change of phrase, which is absolute in its meaning, and not relative to the Legislature; "nor shall the privilege of the Writ of Habeas Corpus ever be suspended, except in case of rebellion or invasion." But from the form which Mr. Pinckney's proposition assumed afterwards, on the 20th August, it seems to be free from doubt, notwithstanding the obliquity of the language and the imperfect grammatical structure of the sentence, that the Legislature was intended by the mover to be the suspending as well as the nonsuspending power; that is to say, that the Legislature was to be the rein that should hold back or let free another power with whom the executive function of arresting and imprisoning must remain. The Legislature was to hold on to, or to relax the privilege. It is not improbable, therefore, that Mr. Pinckney used the word "suspended" in the same sense with the legal argument which has been already adverted to. It is unnecessary to make further remark upon the clause which is contained in Mr. Pinckney's "Plan of a Federal Constitution," as it did not come up directly a second time. Three months afterwards, on the 20th August, 1787, the first subsequent occasion in which the Habeas Corpus clause was mentioned in the Convention, and but about three weeks before the final adjournment of the body, Mr. Pinckney moved, not the adoption of his "Plan of a Federal Constitution," but a number of propositions to be referred to the Committee of Detail. On this occasion he gave to his Habeas Corpus proposition the following form: "The privileges and benefits of the Writ of Habeas Corpus shall be enjoyed in this government in the most expeditious and ample manner; and shall not be suspended hy the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding months." This proposition indicated a disposition to throw away that striking and important qualification of the privilege which had been expressed in his Plan of a Federal Constitution, and to substitute

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for it the discretion of the Legislature on the most urgent and pressing occasions, the omnipotent discretion of Parliament; and it would have brought the Constitution in this respect into perfect identity with the Constitution of England, with a maximum limitation of time, instead of the pleasure of Parliament. It is this form of his proposition which indicates Mr. Pinckney's design in its original form, to give Congress the power of authorizing suspension; and certainly if the occasions of its exercise were to be indefinite, however urgent and pressing, as he now proposed, nothing would have exceeded the incongruity of committing such a power to the Executive department of the government. We shall see how by making the power perfectly definite, and limited by conditions of executive cognizance and by constitutional legislation in the clause which made it, the reference to Congress became an incongruity, and was abandoned. When the subject was finally brought up in the Convention, on the 28th August, we have from Mr. Madison but a brief and meagre statement of what was said upon the occasion. Indeed, Mr. Madison's minutes hardly deserve the name of "Debates in the Federal Convention," which has been given to them. They are a synopsis or general view, more or less full or impartial, according to the disposition of the writer, and to his own position as a member of the body; and though the men of this Convention probably reflected more and spoke less than any public body of its importance will ever do again in this country, yet no one can read Mr. Madison's work with attention, without surmising that on some occasions much more was said than is recorded; and that this probably was one of them. The Convention on that day, the 28th August, were taking up and acting upon any motions, either generally and independently, or in amendment of any article or section of the proposed Constitution previously reported by the Committee of Detail, as the delegates were disposed to suggest them; and it is thus, that on a general or independent motion by Mr. Pinckney, the cause of the debate on the Habeas Corpus is presented by Mr. Madison. "Mr. Pinckney, urging the propriety of securing the benefit of the Habeas Corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months."

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Probably this motion was exactly in the form last proposed by him, filling the blank with twelve. Mr. Madison does not quote any part of Mr. Pinckney's remarks with inverted commas. " M R . RUTLEDGE was for declaring the Habeas Corpus inviolate. He did not conceive that a suspension could ever be necessary at the same time in all the States." This cannot have been all that Mr. Rutledge said. The conclusion of his remark is in apparent contradiction to the beginning, which expressed his opinion that the Habeas Corpus should be declared inviolable. The latter part seems to regard suspension of the Writ or Act as the object, and as being either local or general and not as personal. It was a clear mistake. The whole remark is, however, obscure; and there may be some reason to doubt whether the reporter's mind, or the delegate's, embraced the technical doctrine upon the subject. The two paragraphs thus extracted from Mr. Madison's Debates, are all which they contain on the subject, before Mr. Gouverneur Morris made a motion, which disposed of the whole question. It is impossible, however, to believe that this important question, introduced on the second business day of the Convention, and which had been in view of the delegates for three months, had received as little of private consideration, as Mr. Madison's work represents it to have had, of public comment in the house. Enough, however, is recorded to show that it must have been in the minds of the delegates under at least three aspects: 1. Suspension of the privilege and not of the Writ or Act. i. Suspension by the Legislature, and only by the Legislature. 3. Suspension generally, and by the department that would be intrusted in rebellion or invasion with the safety of the public. Immediately after Mr. Rutledge, Mr. Gouverneur Morris moved that "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless where (when) in cases of rebellion or invasion, the public safety may require it." Now, to show how inconclusive and unsafe it is to infer a particular view to Congress in this motion, or in the clause which it proposed, from the position which is given to the words in the ninth section of the first article of the Constitution, as now arranged, which treats of the legislative power, it may be found on recurring

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to the Journal of the Convention, that Gouverneur Morris made the motion expressly, and so it was adopted by the Convention, as an amendment to the fourth section of the eleventh article of the Constitution, as it had been reported by the Committee of Five on the 6th August, and which was the Judiciary article. (Journal of Convention, Boston, 1819, page 301.) The subsequent change by a Committee of Style and Arrangement ( this was the whole duty of the committee) in the numbers and sections of the articles, was not intended to change, and could not change the import or meaning of any of them; but position, in the intention of the mover of the clause, might have, and probably had, a bearing upon its meaning; and this could hardly have been any other than to admonish the judiciary of a restraint upon their power over the Writ, which did not proceed from Congress, the body by which the particular details of the judicial powers were to be made. Whatever was his intention, the place assigned by him to the amendment, did, as it were, expressly negative the bearing of Mr. Pinckney's motion, upon the Legislature. This motion by Gouverneur Morris, rejected the reference to the Legislature of the Union, and said nothing of a term or time of suspension. Mr. Morris had taken up the substance of Mr. Pinckney's proposition in his Plan of a Federal Constitution, submitted on the 29th May, had struck out the oblique reference to the Legislature which the clause in that Plan had contained, as well as the direct reference to it contained in Mr. Pinckney's motion, on the 20th August, and again on the 28th August, and presented it in the words above given. " M R . W I L S O N doubted whether in any case a suspension could be necessary, as the discretion now exists with the judges, on most important cases, to keep in gaol or admit to bail." The delegate from Pennsylvania seems, from professional associations, to have thought the now superannuated discretion of the judges in capital cases, was a good substitute for any power of suspension, legislative or executive; and to have looked at the suspension referred to, as an act, and a judicial act, dispensing with any interference by Congress. The entire history of the clause, as recorded by Mr. Madison, is thus closed:

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"The first part of Mr. Gouverneur Morris's motion to the word unless, was agreed to nem con. On the remaining part, ayes, 7; no, North Carolina, South Carolina, Georgia, 3." 4 Mr. Morris's clause is the same which now stands in the 9th section of the ist Article of the Constitution, when being in substitution of where, perhaps by the Committee on Style and Arrangement. Looking at this clause as it is contained in the Constitution, with the aid of its short history, it is the statement of a fundamental rule of personal liberty among freemen in the United States, universal, but not unqualified, and not calling for any legislative action to enforce or apply the qualifying exception. The word Legislature, which was contained in Mr. Pinckney's "Plan of a Federal Constitution," and probably also in his motion, when the subject was finally disposed of, was thus cast aside, and an entirely new form and new limitations were given to the principle; the qualification or exception being founded on public facts, upon the occurrence of which, the Constitution authorizes the suspension of the privilege, by the act of that power which is competent to decide upon them. What department or power should have the authority to declare what the public safety required in such a case, the Constitution neither expressly declares nor expressly intimates, by any word or words whatever. The clause was a substitute for Mr. Pinckney's original clause, which contained the word Legislature, as his second proposition did also, and rejected that feature of it without the least ambiguity. If these propositions of Mr. Pinckney intended to confer this power upon the Legislature, the substitute disclaimed the intention by rejecting it. The clause has no phrase or word in it, which either directly or by any fair and reasonable implication, gives or confines this authority to Congress, or takes it away from the Executive. The whole question of deciding with authority, when in cases of rebellion or invasion, the public safety requires the suspension of the personal privilege of the Writ of Habeas Corpus, is left by this clause to the person, body, or power, invested by other parts of the Constitution, with the care of the public safety, to this intent and 1 There were four delegates from South Carolina, of whom three must have voted against it. Probably Mr. Pinckney was one of the three, as his own motion was excluded by that of Mr. Morris.

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effect, in time of rebellion or invasion. There can be no reasonable doubt about this. We may argue from the nature of the right, or from the guarantee which it receives from the fundamental law of the Union, or from the condition in which the government was to be placed by internal war, from rebellion or invasion, that the authority is to be exercised by this department of government, and not by that or by another; but we cannot argue reasonably that the clause itself gives any color of authority to one department more than another, except as one department of the government and not another is more specially charged by other parts of the Constitution, with the care of the public safety upon the occasion referred to; nor can it be fairly argued upon principles of analogy, drawn from the English Constitutional or Parliamentary history, for the clause is entirely un-English as it is truly American. It is un-English, because it ties up the Legislative power, as well as all other power; and it is American, because it is of American origin, and is conservative of personal freedom in general, and also of the public safety in times of imminent internal danger of a specific character. The present position of the clause in the Constitution is not of the least importance. According to the Journal of the Convention, the clause was offered as an amendment to the fourth section of the article on the Judiciary. If position as a section of an article carries power to the article, then the original motion as adopted carried power to the Judiciary, and must have regarded suspension of the privilege as a judicial act, and not as dependent on a Legislative act. The simple and clear language of the clause is, in what it directly expresses, restrictive of all power; in what it inversely expresses, it is permissive of some power,5 and authoritative as to its 5 If the negation of power by the clause had been complete, as according to Mr. Madison's Debates was desired by North Carolina, South Carolina, and Georgia, so much the weaker had been the Government of the United States to suppress rebellion, and the States none the stronger, except in ability to rebel, which is their weakness also. The affirmative or permissive power in the clause is simply a power to suppress rebellion, or to repel invasion. By attributing it to the Executive, the whole government of the Union is organically stronger in that arm which has the main labor and control in both the contingencies; and it is the only arm that is directed by a single eye. If it had been given to Congress, not only would it have wanted that single eye, but it would have been liable to sway from extreme rigor to extreme relaxation, by antipathy or sympathy for the constituents implicated in the internal war; and would, moreover, have been productive of those agitations which mark the suspensions of the privilege by Parliament, as they must necessarily mark every large representative body

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application in the contingencies stated. It affirms the common law principle with an exception for the public safety, thus qualifying the absolute rule of the common law, and defending or withdrawing it from all other restrictions. It is not from restriction or contingent permission like this, that power can be fairly derived to Congress, by position in a section of an article which treats of Congress. The power must depend infinitely more upon the nature of the contingencies themselves, than upon position. It is a case, in which neither the clause itself points directly to the power, nor does the power given to any of the departments point directly to the clause; but the effect of both is like a resultant in mechanics, proceeding from the two forces of the clause and of that department, which, from the nature of the contingencies, must be one of the combining parties to produce it; and the Executive alone is that department. For the reason probably that the clause is directly restrictive, the committee of Convention appointed to revise the style and arrangement of the articles agreed to, placed it in the ninth section of the first article of the Constitution, which is restrictive from beginning to end. With the exception of this clause, and one that precedes it, and prohibits the prohibition by Congress of the importation of slaves prior to 1808, there is not a paragraph in the section which does not begin with a restraining and disabling No. Most of these paragraphs restrain and disable Congress. One of them restrains the Executive department; another of them restrains all persons who hold an office of trust or profit under the United States, in whatever department. In the first of the instances, the general negative of these restrictions is qualified by an express limited affirmation of the power of Congress, to prevent a sweeping or unqualified disability; and there is a limited affirmation which qualifies the general negative in the Habeas Corpus clause; but with this remarkable difference, that, while the power of Congress is expressly affirmed in the first, it is not expressly affirmed in the second. The word Congress is not there. It existed in Mr. Pinckney's proposition and was left out in Mr. Morris's. Considering the facility with which it might have been at such a crisis. There are some striking and impressive remarks upon the mere negation of power to government, in Lieber's excellent work On Civil Liberty and SelfGovernment, enlarged edition, 1859, p. 372.

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introduced or retained, we may say it was struck out. Position in the ninth section of the first article of the Constitution is not only of no avail, but the argument from position is more than countervailed by expression; and is emphatically overcome by the Journal of the Convention. But no instrument, moreover, permits the interpretation of its clauses to be affected by position, less than the Constitution of the United States. The matter of arrangement, especially as to the independent propositions made and agreed to in Convention, and most especially as to the Habeas Corpus clause, which was not contained in the draft of a Constitution reported by the Committee of Detail on the sixth of August, when the great plan and principles of the three departments had been discussed and agreed to by a majority, had less consideration than any other subject. The Committee on Style and Arrangement was the best possible; but though several amendments to parts of their report were offered in the Convention, no articulate consideration was given to the order and position of the different sections and clauses, as reported by that Committee. From the manner in which the amendments were made to the Constitution after it was adopted, all but the n t h and 12th have no position at all. One of these was intended to abridge the judicial power, the other to alter the mode of electing the President. The whole must have the same meaning wherever they may be placed. Their most natural position is in the same section with the Habeas Corpus clause, as they are uniformly restrictive. The most important differences between the Constitutions of England and the United States in regard to the Habeas Corpus privilege, and between the modes in which an exception to the privilege is authorized, may now be recapitulated. 1. The Constitution of England, properly speaking, authorizes nothing in this respect, nay, negatives suspension, by the universal principle of the Common Law, that there is no exception under any circumstances to the right of bail, trial, or discharge, without delay. The Constitution of the United States affirms that principle, with one exception, and authorizes a departure from it in that excepted case. 2. The voice of Parliament, equal in the ears of the English

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Courts, and more than equal, to the voice of the unwritten Constitution, authorizes Parliament, and under what circumstances it pleases, to authorize a denial of the privilege. The Constitution of the United States, unchangeable by Congress, declares by its own will, an exception to the privilege, and authorizes it to be made, and the privilege to be denied for a season, in the excepted cases and in no others. In other words, Parliament authorizes an exception to be made, dependent for execution on the pleasure of the Crown. The Constitution of the United States, establishes the exception of rebellion or invasion, and the requirement of the public safety, and authorizes the exception to be executed by the body that is under the Constitution empowered to declare these facts; but without saying by what department it shall be made. 3. Under the Constitution of England, a law of Parliament alone can make an exception in England, to be applied as Parliament directs. In the United States the exception is made by the Constitution, with authority to one of the departments to apply it, without expressly saying which. 4. In England the denial of the right of bail, trial or discharge, is the joint effect of the Statute and of the Act of arrest and detention by the Crown. In the United States it is the joint effect of the Constitution and of the arrest and detention by the department, which is competent to order it. If the clause in the Constitution had said of the WRIT of Habeas Corpus, or of a Habeas Corpus ACT, enacted or to be enacted, what it says of the PRIVILEGE of the Writ, there would have been some ground for the Argument, that a Writ of Habeas Corpus, and a Habeas Corpus Act, being the work of the Legislature, the suspension of the Writ or Act should be made by the Legislature also. But the privilege, the personal privilege being alone spoken of, an act of arrest and detention by the department which is competent to ascertain the conditions of the exception, together with the effect imparted by the Constitution, is sufficient, and no legislative Act is necessary,—unless, and this is the gist of the whole question, a legislative Act is necessary to ascertain the conditions of the exception. The gist of the question seems then to be this, whether it requires an Act of the Legislature, to declare that Rebellion or Invasion exists

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in the Country, and that the public safety requires the suspension of the privilege. If it does, then Congress alone has the power to pass such an Act: if it does not, then the power of enforcing the execution falls necessarily to the Executive. The judicial department cannot be the body to interpose, because its functions are not directly pointed to any of the facts, either Rebellion or Invasion, or the demands of the public safety on such occasions. Indirectly, and in cases, or judicial controversies, they might take cognizance of each of them. This question of the power of Congress over this matter, has never been decided, authoritatively; and it has never been argued with any care, or perhaps argued at all, by a Court, or by Counsel in Court. So far as authority goes, it is at this time, a question of the first impression. There probably has been, and still is, a strong professional bias, in favor of the power of Congress, perhaps a judicial bias, if that be possible. It was not easy to avoid the bias under the influence of English analogy, which some preceding remarks were intended to disqualify; but there is nothing on the point, that is judicially authoritative. Chief Justice Taney's opinion in Merryman's case is not an authority. This of course is said in the judicial sense. But it is not even an argument, in the full sense. He does not argue the question from the language of the clause, nor from the history of the clause, nor from the principles of the Constitution, except by an elaborate depreciation of the President's office, even to the extent of making him, as Commander-in-Chief of the Army called from the States into the service of the United States, no more than an assistant to the Marshal's posse: the deepest plunge of judicial rhetoric. The opinion, moreover, has a tone, not to say a ring, of disaffection to the President, and to the Northern and Western side of his house, which it is not comfortable to suppose in the person who fills the central seat of impersonal justice. But this may be the apprehensiveness of the reader. The remarkable feature of this opinion, is that for proof of the President's exclusion from the power, the Chief Justice dwells upon the President's brief term of office — his responsibility, by impeachment for malfeasance in office — the power of Congress to withhold appropriations for the Army, of which he is Commander-in-Chief,

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and to disband it if the President uses it for improper purposes — his limited power of appointment — his limited treaty-making power — his inability to appoint even inferior officers, unless he is authorized by Congress to do so. Chief Justice Taney has elaborately stated all this, without appearing to perceive, that these very considerations may have, and certainly ought to have, induced the Convention to devolve upon the President, exclusively, the trust and power of suspending or not suspending the privilege in time of rebellion, as he should think the public safety required. The constitutional limitations of the office make the President the safe and the safest depositary of such a discretion. There can be little danger of abuse from an office of such powers. It was the great power of a King of England, that was the operative motive with Parliament for taking the power of suspension from him; and they have left it in a body that is of equal power under the Constitution, and apparently on its way to greater. Chief Justice Taney quotes the language of one whom he justly calls his "great predecessor," as standing in place of argument and of other authority with him; and if that predecessor, in a case properly bringing up the point, had discussed it after argument by counsel, as he discussed all other constitutional questions so brought up for judgment, all would have been silent; and, factoque hie fine, there would have been rest to the question. He too, that great judge and statesman, had his bias, though it was all on the side of the Constitution, and of its due operation in all parts; but, with his vigorous mind and pure heart, he drew himself up erect, to the elimination of that and every other bias, when he pronounced judgment. There was nothing thwart in his nature. The same straight and long limbs of body and mind, which he had when he first drew his youthful sword in defence of his country, he continued to have to the last sands of his patriarchal life. It is the occasion of deep grief, that he did not live to handle this and another question of Constitutional Law, that, more than all others, have agitated this nation. His analysis and authority would have settled them both forever. But the language of Chief Justice Marshall, whatever be its meaning, was not used in a case which brought up the question. The case of Ex parte Bolman in 4 Cranch, could not bring up the question whether the President or Congress had the power of suspending the

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privilege of the Writ in cases of rebellion or invasion. There was no rebellion nor invasion at the time; and no suspension of the privilege by either Congress or the President. The question then before the Court, the first question in Ex parte Bolman, was whether the Supreme Court, having no original jurisdiction of the case, could issue a Writ of Habeas Corpus to bring up the body of Bolman, and the record of his commitment by the Circuit Court for the District of Columbia. The Court was somewhat divided upon the point, and the writ was issued, two judges out of the five dissenting; but the manner in which it was argued, not at all the necessities of the case, induced the Chief Justice to say, "that if at any time the public safety should require the suspension of the power vested by this Act ( the Judiciary Act of 1789 ), in the Courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature are to decide. Until the Legislative will be expressed, this Court can only see its duty and must obey the laws." Perhaps there is nothing in this language that, taken with reference to the case, is open to exception. The power to issue the Writ was the question; and as the Legislature had given this power to the Court, it was apparently reasonable to say, that the Legislature only could suspend that power. The whole language does however say further, that if the public safety should require the suspension of the powers vested in the Courts, adverting, perhaps, to the language of the Habeas Corpus clause in the Constitution, it was for the Legislature to say so. But there was nothing before the Chief Justice to raise the distinction between Congress and the President; nor between the privilege of the Writ as descriptive of a personal right, and the Writ itself as authorized by law; nor between the operation of the Constitution itself and the operation of a law of Congress. Certainly Chief Justice Marshall would not have said, that if the Constitution, either expressly or impliedly, had given to the President the power to suspend the privilege, his Act would not be as effectual upon the Courts, and upon the law of Congress which gave power to the Courts to issue the Writ, as any Act of Congress would be. The proper question would then have been between the Constitution and Congress, and not between an Act of Congress and the Court. It was however altogether obiter, whatever was the Chief Justice's

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meaning; and was no authority, though it is all that Chief Justice Taney cites as of judicial decision. Judge Story's remarks, which are also referred to in Merryman's case, are of even less weight; not from personal considerations, but as they are those of a Commentator, and not of a Judge in his place. The point of them however is easily taken away. In commenting very briefly upon abuses of personal liberty in England, including abuses by Parliament, and of the restraint placed upon them by the clause in the Constitution of the United States, Judge Story remarks: "Hitherto no suspension of the Writ has been authorized by Congress, since the establishment of the Constitution.— It would seem, as the power is given to Congress (sic) to suspend the Writ of Habeas Corpus in case of Rebellion or Invasion, that the right to judge whether the exigency had arisen, must exclusively belong to that body." — As this is printed in Judge Story's work, the last clause, which begins diffidently enough, proceeds at once to do something more than to beg the question. It demands or extorts it. The very question, is whether the power is given to Congress. Certainly no power is given in terms to any body to suspend the W R I T . There is more in the same sentence on which it is not necessary to remark. In the absence then of authority upon the point, it is necessary to repeat, — that the clause in the Constitution uses a well-understood phrase, to express a well-known meaning, independently of all legal forms. It means that bail, trial, or discharge from imprisonment shall not be denied to any freeman, except in a certain description of case; but that when that case shall occur, it may be denied for a season, if the public safety requires it. Congress, under the Constitution, might adopt any form of judicial relief, and endow its judicial department accordingly — the civil law process, "de homine libero exhibendo," or the Spanish "el despacho de manifestación." If Congress had taken either, it would not have altered in the least the effect of the clause in the Constitution. The privilege of "the Writ of Habeas Corpus" must necessarily have been understood to assert the privilege of relief from imprisonment by bail, trial, or discharge. The Writ of Habeas Corpus was better known in the States, and therefore most appropriate; but the privilege is not inseparably bound to that or any other specific remedy. The reference to the

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Writ, was to describe the privilege intelligibly, not to bind it to a certain form. The privilege is guaranteed to all freemen generally by the Constitution; and the denial, for a season, authorized. The question is, by whom the denial or interruption may be made; and this must be decided by the constitutional powers of the different departments, as that instrument has established them, and as the nature of the conditions requires. The clause does not by its necessary implication give power to any department to authorize the suspension of the privilege, but it gives power to suspend it in the cases conditioned, — that is to say, to deny it temporarily, with the effect declared by the Constitution. The Constitution itself authorizes the suspension under the appointed conditions. The suspension of the privilege under this constitutional power, becomes an executive act, and not a legislative act. A power by the Constitution to authorize the suspension of a privilege, would be a power to authorize it by legislation, and then the suspension would be an executive act, under the legislative authority. The Constitution itself authorized the suspension under conditions, and therefore the suspension in the cases supposed, is an Executive Act. The same well-understood meaning of "the privilege of the Writ of Habeas Corpus," makes the guarantee of the privilege mean what it does, though not expressed, and also makes the "suspension" of the privilege mean what it does, though not expressed, namely, a denial for a season of bail, trial, and discharge. Under the power given by the Constitution, this denial is an executive act, and it can never become anything but an executive act. If the conditions under which the Act of denial for a season is executed, do of themselves require legislation, or are legislative in their character, then so far, it must be admitted, that legislation must enter into the execution of the power; but Congress, personally, can never suspend the privilege, by act on the person to be affected. Parliament never does this. It authorizes the Crown to do it, or declares the effect of what the Crown shall do. This is all that Congress can do — give effect to an Act by the President or somebody else — and this the Constitution does already. The question is whether the conditions of rebellion and invasion,

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and the demands of the public safety in such a conjuncture, require declaratory legislation to establish them. If they do, then it would seem that Congress alone has the power to establish them. If they do not, — if in this special conjuncture they are within the proper functions of the Executive Department of our Government, then the President may establish them, and the power of denying the privilege for a season, belongs wholly to his office, with the effect which the Constitution allows. The special conjuncture is referred to, because the authority of the Legislature to provide by law for the general safety of the nation, will not be brought into question. But the conditions under which this privilege may be denied, are peculiar, and demand consideration. There are two conditions by the clause in the Constitution, which are to precede the exercise of the power to suspend the privilege. Speaking with reference to the present day, they are rebellion and the requirement of the public safety, that is, that the public safety requires the suspension of the privilege. It is not public safety in general, but public safety in that conjuncture of rebellion that is referred to by the Constitution; for the clause has connected inseparably the suspension of the privilege with rebellion, or with invasion when that happens. Rebellion and the suspension of the privilege are contemporaneous and con terraneous. They occupy the same country at the same time. They are indissolubly connected as cause and consequence. They have a necessary relation, not only to give existence to the power of suspension, but in the exercise of it; and to such a degree, that if the power were exercised except for the defeat or suppression of rebellion, it would be the widest possible departure from the spirit of the Constitution, and from official duty. If this power is devolved by the Constitution upon the President, no one can doubt, that if the President were to suspend the privilege of any person, except upon reasonable ground of belief, that to bail, try, or discharge him in that conjuncture, would prejudice the public safety, in the very matter of the rebellion, it would be unconstitutionally suspended, and be attended by the grave responsibility which the Constitution asserts. This is the Constitutional aspect of the suspension of the privilege of the Writ of Habeas Corpus, and of the public safety which is concerned in the exercise of the power.

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Now to ascertain whether as to these two matters of rebellion and the public safety as affected by it, the President is officially competent to decide and declare them, there is no necessity to analyze the powers of the Executive with any elaboration. That the duties of the President to take care that the laws be faithfully executed, and to defend and protect the Constitution as well as to support it, and both to decide the fact of rebellion, and to measure the danger of the public arising from it, and what the public safety requires in this behalf, do belong to the Executive office of the President, we have the constant and continued voice of the Legislature, the voice of the law itself, for sixty-five years, from the very next session of Congress after the suppression of the Western Insurrection, in 1794, down to the present insurrection, raised to its highest power of rebellion against the Government. That voice is to this effect, that not only is it the President's power to declare the existence of rebellion, and what the public safety requires in regard to it, but that it is his duty. The power to do this is not granted to him by Congress, but it is assumed by Congress to be both his power and his duty to exercise it; and very large power is given to him upon that hypothesis, to assist in the execution of what is manifestly a Legislative power, namely, the calling forth the Militia. It was the assumption of the Legislature in regard to invasion, from the very first moment that Congress, in the dawn of the Government, provided for calling forth the Militia to repel invasion or to suppress insurrection; that it was the President's duty to declare and decide its existence. It was the assumption of Congress also, in regard to the President's power and duty to say what the public safety required, both in rebellion and invasion. But in this first Act of 1792, in one of those spasms of jealousy, by which party sometimes throws legislation out of its Constitutional path, when the bill was before the House of Representatives, an amendment of the most absurd kind was proposed to the section which provided for the case of Insurrection, deviating from the course adopted by a preceding section in regard to invasion, namely, that before the power given to the President bvj the Act to call forth the Militia should arise,' an Associate Justice or a District Judge of the United States should notify the President, that the laws of the United States were opposed, or the execution of them obstructed, by combinations too

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powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshal by the Act, — the posse of the districts. It was an absurd provision; for the judges could have no materials for their judgment, except what they derived from the Executive department; and in point of fact, before President Washington could call out the militia to suppress the Excise Insurrection in Western Pennsylvania in 1794, the Executive department was obliged to exhibit the evidence of the fact to Justice Wilson of the Supreme Court, to obtain his fiat; he at the same time, as a Justice of the Supreme Court, knowing no more about the matter personally or officially than any other reading man in the country. The insurrection had no relation to his office. As one of the movements adverse to Washington in that session of Congress, when persons, whom we may remember, were laying the foundation of the State Rights party under a different name, the amendment was carried, and this strange feature given to the law. But in the very next session which followed the Western Insurrection, the Act of 1792 was repealed; and by an Act of 28 February, 1795, which is still in force, and was President Lincoln's authority for his recent calling forth of the militia, insurrection and invasion were placed, in respect to the President's decision, upon the same footing. And the footing is quite remarkable. The Act does not refer the decision to the President nominatim. It does not grant to the President the power of deciding the question of fact. It assumes that it belongs to his office to decide each of these facts; and simply enacts, "that when the United States shall be invaded or be in imminent danger of invasion," and "that whenever the laws of the United States shall be opposed, or the execution thereof be obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshal by this Act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed." The President, from the very nature of the facts, and the duty of his office, decides them himself; and in the case of Van Martin v. Mott, 1 2 Wheaton, the Supreme Court decided that the President's judgment upon the facts was conclusive upon everybody. He decides the fact of rebellion.

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He declares the number of militia necessary to cope with the insurrection. And what other department can officially declare these facts? Which department is to take care, directly and universally, that the laws be faithfully executed, and officially to know that the execution is obstructed by combinations too powerful to be suppressed in the ordinary course of judicial proceedings, or can anticipate the necessity for armies to suppress rebellion, and the number required to that end, or is bound to devote his functions constantly to the defence and protection of the Constitution? Which department has the whole Executive power of the United States, and with it the primary duty of deciding the facts which regard the execution of the laws and Constitution of the country? It is manifest then that there is no necessity for a law of Congress to determine the great fact of rebellion or invasion, or the general or particular danger to the public arising from it, upon which the suspension of the privilege of the Writ depends. From the dawn of the Government, Congress has left these facts with the President, and with him alone. The President's means of acting upon his decision, the Army, Navy and Militia, and their numbers, duration and support, must depend upon Congress. This is their department. But, if Congress were to take from him the power of deciding upon the extent and necessity of these means, it would invade the Executive Department, which is to sustain the execution of the laws. And if they were to deny him the means, the responsibility would be with Congress. The President does not decide the facts conclusively upon Congress, so as to command the means, or so that Congress must follow him by providing the means; but he decides them officially; and that is all that is necessary to give effect to a warrant of arrest by him, and a temporary denial of the privilege of the Writ of Habeas Corpus. There is no necessity for supposing, in regard to the safety of the Country, generally and at large, the great measures which are to express the wisdom of the Legislature in providing for the stability and security of the Country, and for the extension of its power, to make it safe against both Invasion and Rebellion, that these measures are not to come from the Legislature. They are Legislative measures, and must come from the Legislature alone; though when

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they are consummate as laws, they must fall within the Executive department in every particular in which that department has anything to do with them, by force of the laws or the Constitution. But in the case of actual rebellion and actual invasion, the declaration or proclamation of the facts, is not Legislative, but executive; and so is the decision of what the public safety requires, for that is a conclusion of fact from other facts, within the range of the same Executive duty. The perfectly untrammelled judgment of the President, has been resorted to by Congress, not by their own Legislative prescription, but under the Constitution, to estimate the dangers of insurrection in all degrees of force up to rebellion, and to estimate the military forces which safety requires. What does safety require, but that the offending force of every description, overt and in ambush, shall be unmasked, assailed, and over-powered, by a greater force on the side of the Government and the law? And these are facts, and conclusions of fact, which it is specially and officially the power and duty of the Executive office to investigate and make. Congress may abide by his judgment or not in regard to the amount of military forces, and may supply the means of safety or not, at its pleasure; though this only saying that they may be untrue to their trust at pleasure. These are their powers under the Constitution, and they have many others. But it is impossible fairly to deny, that the department which holds and directs the Executive power of the Government — which is charged with the execution of the laws, and with the command and disposition of the military force — with the whole Executive power of the nation, subject to the exceptions and qualifications which are expressed in the Constitution, of which there are none that touch this question — is trusted by that instrument with the supervision of the Union, with the power to estimate what is its danger and what is required by the public safety in time of rebellion, and of deciding and executing his decision, to the extent of all the means at his lawful command. These remarks meet the objection, if it shall be raised, that any of the conditions under which the suspension of the privilege of the Writ, or the denial of that privilege for a season, is authorized by the Constitution, require legislation or the exercise of the power of the Legislature except as to the means. They do not require it as to the subject. Both the fact of rebellion and what the public safety

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requires, to the defeat or suppression of rebellion, are of Executive cognizance and decision, and of execution also, to the whole extent of the lawful means of that department. It is a breach of the President's duty, not to declare the fact, when the laws are opposed, and the execution of the laws is obstructed by combinations too powerful to be suppressed by the usual course of judicial proceedings, and the Marshal's posse. It is his special function and obligation under the Constitution to decide it, and to the extent of his means, to provide for the safety of the public, which he cannot do without saying what it requires. From this plain and natural view of the Executive department, there is a most obvious and just deduction in regard to his power to suspend or deny for a season, the privilege of the Writ of Habeas Corpus in time of rebellion. The course of justice is at such a time obstructed. Courts of justice execute their office imperfectly. In some instances they are closed, and their officers are put to flight. In some, their judges and officers are parties to the rebellion, and take arms against their government. In other instances, the people, the jurors, the officers of courts, are divided in their opinions, attachments, families, affinities. Calmness, impartiality, and composure of mind, as well as unity of purpose, have departed. It is not a season for the judicial trial of all persons who are implicated in the rebellion. It cannot be while the rebellion lasts. To arrest and try even those who are openly guilty, and are taken with the red hand, would, in many places, be fruitless, and only aggravate the evil. The methods and devices of rebellion are infinite. They are open or covert, according to necessity or advantage. In arms, or as spies, emissaries, correspondents, commissaries, proveditors of secret supplies and aids, their name is sometimes legion; all treasonable, and many of them disguised or lying hid. A part of this disguise may sometimes be detected, and not often the whole. An intercepted letter, an overheard conversation, a known proclivity, an unusual activity in unusual transactions, in munitions, or provisions, or clothing, — a suspicious fragment and no more, without the present clue to detection, may appear — not enough for the scales of justice, but abundantly sufficient for the precautions of the guardian upon his watch. Such are the universal accompaniments of rebellion, and constitute a danger frequently worse than open arms. To confront it at once, in the ordinary course of justice, is to insure its escape,

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and to add to the danger. Yet the traitor in disguise may achieve his work of treason if he is permitted to go on; and if he is just passing from treason in purpose to treason in act, his arrest and imprisonment for a season may save both him and the country. The obvious and just deductions from these observations is, that the power of suspending or denying for a season, the privilege of the Writ of Habeas Corpus in time of rebellion, is a most reasonable attribution to the Executive power, such as the Constitution of the United States has made it; and so indispensable to that branch of the Government, that without it, the very arms of the Government might be baffled and its worst enemies escape. The Legislature cannot execute the power itself. If the power is limited to them, they must delegate it to somebody. All that is claimed for Congress to do, is upon some judgment of the facts which constitute the danger to the public, to commit the discretion to the Executive. But why form a judgment, and then leave the whole judgment to the Executive as they must? Why claim for Congress the power to suspend, when the actual and efficient power as an Executive act, must be with the President? It is claiming a power for Congress invidiose, which the Constitution did not feel, or it would have spoken. The Parliament of England delegates it to the Crown, because Parliament alone can surmount the Constitution, or restrict the operation of the Habeas Corpus Act, or declare an exception to it. Parliament must act; why must Congress act? But connecting the exception inseparably with rebellion, as the Constitution of the United States does, and leaving the exercise of the power to that body which can best execute it, and is the paramount director of the public force in time of rebellion, it is a reasonable conclusion from the whole, that the Executive department is the body to which the Constitution leaves it, and not the Legislature. The power to authorize suspension is legislative. If Congress has the power to authorize it, they may possibly authorize the President to execute their law. They may authorize him perhaps, if the Constitution does not authorize him. And if Congress shall authorize the President to execute their law by his warrant against the persons he shall think within its purview, then, be it remarked, Congress by their law will leave to the President, the very power of deciding whether the public safety requires that the privilege of those per-

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sons shall be suspended. Congress cannot do otherwise if they pursue the course of Parliament, or the only example in their own body, of a bill to suspend the privilege. No Act of Parliament has ever passed to deprive arrested persons of bail or trial, which did not leave to the King the power, by his Privy Council or Secretary of State, to decide whether the public safety required the arrest to be made. Unless Congress shall, by the act itself, designate by name the persons to be arrested, A. B., C. D., E. F., and make that body itself the executive officer, the question of what the public safety requires, in regard to the suspension of this personal privilege, must be decided by the President, and can be decided by no other person. Perhaps if Congress has the exclusive power to authorize the suspension, it may assign this duty to the President; but this, perhaps, if we may advert to an objection which we find in the Federalist, is constitutionally the subject of as much question as anything in the case. Between the report of the Constitution to the old Congress, and the adoption of it by the required number of States, among other objections to it of State Rights origin, was one that the power of pardon had been given to the President instead of Congress, and the reply to this was by Hamilton. "But the principal argument for reposing the power of pardoning in this case in the Chief Magistrate is this: In seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels, may restore the tranquillity of the Commonwealth, and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature or one of its branches, for the purpose of obtaining its sanction, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, or an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, may he occasionally conferred upon the President, it may be answered in the first place that it is questionable whether, in a limited Constitution, that power could be delegated by law." Federalist, No. 74. Perhaps it might have been added — especially to the President, the limitations of whose office were as much the effect of deliberation by the Convention, as the limitations of Congress.

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The whole of the paragraph from the Federalist, is as applicable to the power of arrest and detention in time of rebellion, as it is to the power of pardon. There are some other objections to this conclusion, which will be briefly noticed. None of them are of the least weight, except so far as they may serve to make it improbable that a power of this nature would be placed by the Constitution in the hands of the President. If the Constitution has placed it there, that is to say, if it falls to that place by the nature of the Government, and by the language of the clause, they avail nothing. Forget the analogies of the English Constitution, and reason from our own, and it will be seen that it falls to that hand, and to no other in time of rebellion or invasion, when alone the power can be exercised. How natural and easy — indeed how inevitable it was — that the original form of the proposition, which included the Legislature only, should be preserved, if the power was intended finally for Congress, and not for the Executive department. In opposition to an intention to leave the power to Congress, observe the striking departure from parallel, of the second clause of section nine, article one, from the first clause of the same section. First clause: "The migration or importation of such persons, &c., shall not be prohibited by Congress before the year 1808, but a tax or duty" (expressly within the power of Congress, section 8) "may be imposed on such importation." Second clause: "The privilege of the Writ, &c., shall not be suspended, unless when, &c., the public safety may require it." The word Legislature in Mr. Pinckney's proposition, abandoned in the second clause, after the express insertion of Congress in the first. If there is anything in present position, this change of language is more than a counterpoise. The Constitution has for obvious reasons enumerated and specified the powers of Congress. If Congress was to have the power of suspending the Writ, why not specify it with the other powers in the eighth section? If it is asked, why not have done the same, if it was intended for the President, the answer is this: The Executive power is vested

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in the President by general terms, by one concise and comprehensive sentence; those powers of the office are alone specified or enumerated, which the President exercises in connection with the exercise of powers by other departments and officers, or in control of them, as in the case of making treaties, commanding the army, navy, and militia, appointing to office, requiring written opinions from his secretaries, granting reprieves and pardons, adjourning Congress in case of disagreement, and the like. The question comes back — Does suspended in the Habeas Corpus clause mean suspended by law, or simply suspended, denied, deferred, delayed, hung up for a season? Is it to be carried into effect by a law of Congress, or by an act of another department, to which, as an executive authority, it appertains? The position taken sometimes in regard to other provisions of the Constitution, that what a Constitution of government ordains generally, it means to be carried into effect by law, fails in a great variety of cases. It fails of course, when, what the Constitution ordains on a subject, is all the law it requires; as where a power to perform an executive act is given, and the Constitution by its own terms declares the effect of the act; which is the case with suspension of the privilege of the Writ of Habeas Corpus. The word "suspended" gives effect to the act when it is executed under the authority of the Constitution, and by the competent authority under it. It is the only word that could be used to give character to an Act of Congress to this effect. It is an illogical proposition to assert that whatever a Constitution ordains, is to be carried into effect by a law. Such a proposition is founded on an absurd postulate, namely, that everything ordained by a Constitution can be carried into effect only by a law. It must be untrue to a considerable extent of every written Constitution. There are numerous provisions in the Constitution of the United States, which execute themselves, or are to be executed by acts in pais, without the aid of a law of Congress, — the choice of senators and representatives — the choice of officers of each house — the trial of impeachment by the Senate — the appointment of officers by the President with consent of the Senate — the mode of passing bills to become laws — extradition between the States, and the like.

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In the election of a President, the course is striking: the Constitution ordains most of the ceremony itself, and it ordains expressly what Congress may do and what the States shall do. There is no such principle; and the last clause of the eighth section of the first article is a proof of it. Congress can pass only such laws as are necessary and proper to execute the powers given to themselves, or such other powers as are vested by the Constitution in the government, or in some department or officer. The law must be necessary as well as proper; and it is neither when the Constitution is the law. In this matter of suspension of the privilege of the Writ of Habeas Corpus, the Constitution of the United States stands in the place of the English Act of Parliament. It ordains the suspension in the conditioned cases, by the act of the competent department — as Parliament does from time to time. Neither is mandatory in suspending, but only authoritative. Each leaves discretion to the executive power. The difference is, that Parliament limits a time and provides for the effect by technical terms. The Constitution connects the suspension with the time of rebellion, and provides for the effect, as it did for the privilege, by words that comprehend the right, and deny for a season the enjoyment of it. It is further objected that this is a most dangerous power. It is fortunately confined to most dangerous times. In such times the people generally are willing, and are often compelled, to give up for a season a portion of their freedom to preserve the rest; and fortunately again, it is that portion of the people, for the most part, who like to live on the margin of disobedience to the laws, whose freedom is in most danger. The rest are rarely in want of a Habeas Corpus. But be the danger what it may, the safety with which such a power is placed with the President, to be exercised upon his own responsibility, is greater than if it were lodged with Congress, and greater than if it were devolved by Congress upon the President. Congress is irresponsible. Congress, in sympathy with the President by the grant, lessens the President's responsibility. The President, directly and personally responsible for his own judgment and acts, makes the guarantee more complete than any other provision. The Executive is confessedly the weakest department in the government, weaker than is known in any other national government. Receiving

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from Congress all the dangerous strength the President can have, the public apprehension should look to what he thus receives, and not to what he derives directly from the Constitution. For the use of powers which Congress may give him, to be exercised according to his own judgment, it is only in flagitious cases of wanton oppression, that we can expect Congress to be his accuser, or the Senate his judges. When his own judgment brings the power into exercise, and his own application of it works a wrong in any degree, he has nothing to fall back upon but his patriotic intentions. As a theorem of republican polity, a most dangerous power, if this be most dangerous, should be lodged in the feeblest hands. In suspending the privilege of the Writ of Habeas Corpus upon his own judgment, the President can have no support but from his integrity and his patriotism; and he stands directly before accusers and judges who have had no part in his acts. We have a striking page of history in our annals to remind us of this distinction. In the winter of 1807, when there was neither invasion of our country nor insurrection in its lowest stage, much less rebellion, not an armed force being proved by competent testimony to exist in any part of the country, to make Aaron Burr's few followers take the least complexion of treason from their movements, Mr. Jefferson, favoring the theory that Congress alone had the power of suspending the privilege of the Writ of Habeas Corpus, and that he might safely exercise it under their wing, sent a message to Congress, representing that an emissary of Burr, whom General Wilkinson had arrested and imprisoned, had been discharged upon a Writ of Habeas Corpus; and then followed the phenomenon, — we might say the portent, — a Senate representing free States under the Constitution, passed, within closed doors, a bill suspending the privilege of the Writ for three months, as to any and all persons charged on oath with treason or other high misdemeanor, endangering the peace, safety, or neutrality of the United States, and arrested by the warrant of the President of the United States, or by any one acting under his direction or authority. There was not one word in the bill like rebellion or invasion, the terms in the Constitution, nor any words that adumbrated either. There was nothing like either in the land. Happily there was virtue enough in the House of Representatives, or enough of alienation from Mr. Jefferson, to make the House reject the bill by an immense majority and to open their

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doors. But we may ask with all confidence, whether Mr. Jefferson, even with a consciousness of his own power under the Constitution to suspend the privilege, would have executed such a purpose, at such a time, upon his own responsibility? We may confidently say no. But if a majority of the House had acquiesced, and there were nineteen who voted for it, we may recollect whose sentiment it was, upon being told that his friends were willing to ignore a breach of the Constitution, which he had expressly acknowledged, replied, that "if his friends were satisfied, he would acquiesce with satisfaction." This getting power from friends in Congress who are satisfied, is a prodigious corroborative in the exercise of it, whether it be Constitutional or not. All experience teaches us that the only safe depositary of the power of suspending the privilege of the Writ of Habeas Corpus in time of rebellion, is that feeble Executive, which the Constitution has made for us, standing upon the only basis of the Constitution, with no other support than the integrity and patriotism of the man who has been elected to it by the people. It also objected that if the President holds the power under the Constitution, the exercise of it has no limitation of time. Here again the English analogy breaks in. What the objection requires, is an Act suspending the privilege from session to session, renewable as Congress shall see fit. The limitation in England is practically worth nothing. It is either a show of supervision without the reality, to please the discontented, and to disarm party opposition; or it is a manifestation of the superiority of Parliament to the Crown; or it is the cantilena of Parliamentary jealousy of the Crown. The ministers who pass it, can always renew it if they are in power; and if they are not, a perpetual Act would be repealed upon their downfall. There was not, it is believed, a single suspension Act in England, in the time of any of their rebellions, that was not renewed from session to session, until the rebellions were suppressed. It would be even more a form, and an unnecessary form, here. The power carries a limitation of time with it. It depends for its existence upon the existence of rebellion. The instant the rebellion is suppressed, the power is extinguished. While rebellion lasts and the public safety is in danger, the power is indispensable; and the Constitution supplies it for the whole of that occasion. There is, moreover, the ever present liability to impeachment,

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to arrest it at the first occasion that it is used corruptly or tyrannically for the purposes of ambition. The office itself is a short taper, which shines not very brightly for a brief term, and then goes out of itself. The exercise of the power would probably be continued longer by renewable terms, from Congress to the President, than the President of his own judgment would exercise it under the Constitution. A technical objection to the exercise of the power by the President, is, that it will stay the issuing of the Writ of Habeas Corpus by the Federal Courts and Judges, or arrest proceedings under a writ expressly authorized by Act of Congress, which can only be stayed or arrested by a subsequent Act. This is English analogy again. If the power of the President is derived from the Constitution, it is above the authority of an Act of Congress. It is the power of the Constitution, together with the authorized act of denial, that arrests the proceedings or stays the Writ for a season. But it is quite unnecessary that it should prohibit the issuing of the Writ. The Writ may issue to ascertain the cause of the commitment. The return of the commitment by the President, if he possesses the power, will stay further proceedings, as it now does in our Federal Courts, when the commitment is by the authority of a State. It is also said, that the exercise of the power by the President, without oath or descriptive warrant, violates one of the amendments to the Constitution. It would be the same if the power were exercised by Congress. Non constat, that the President will not require an oath, — warrant there always is. The President may provide for the oath as well as Congress. If the amendment applies, he must do it, or the commitment will be irregular. But does the amendment apply to this kind of arrest in a time of rebellion and internal war? In Luther v. Borden, the Supreme Court, Chief Justice Taney delivering the opinion, held that it did not apply to a seizure by military authority under a State law, which declared martial law. If it did not do that, it does not apply to a power of arrest given by the Constitution, to be exercised in the time of rebellion and internal war, and intended to aid in its suppression. Either the language of the amendment, though general, speaks in reference to the normal condition of the country only, when

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there is no rebellion or invasion and consequent war, foreign or civil; or under such circumstances, rebellion or invasion supersedes the amendment for the time. The former seems to be the preferable conclusion. The democratic tendency of the Constitution, has so completely done its work in enfeebling the Executive office, that very able men appear to think, that to attribute to the President the power of suspending the privilege, is to deprive the Legislature of a power which naturally belongs to that body. That body has in no respect a natural title to it. Strictly speaking it belongs naturally to no department of the Government. Discretionary imprisonment, however necessary in times of extraordinary danger and internal disorder, is an arbitrary ouster from all the benefits of Government; benefits which belong to every citizen, until he is accused and convicted of crime. If the Constitution had not ordained the exception, no department of the Government could have enforced it, without violating the fundamental principle of every free Government; and it can only be enforced now, by that department of Government, which can alone execute the ordinances of the Constitution, that are executive in their character, unless some other department be expressly named. Yet this seems to many the most irregular exercise of power that can be conceived. The objection itself is one of those evils which the Executive department is exposed to, from the predominance of the legislative power under every Democratic Constitution. "Maîtresses de faire les lois, on doit craindre qu'elles ne lui enlèvent peu à peu la portion de pouvoir que la constitution avait voulu lui conserver." De Tocqueville, I, 204. "Cette dépendance du pouvoir exécutif, est un des vices inherens aux constitutions républicaines. Les Américains n'ont pu détruire la pente qui entraine les assemblées législatives à s'emparer du gouvernment, mais ils ont rendu cette pente moins irresistible." Ibid. "Dans tout ce qu'il fait d'essentiel, on le soumet directement ou indirectement à la legislature. Où il est entièrement indépendant d'elle, il ne peut presque rien." I, 215. The most intelligent men in our country, have come at length to be apprehensive of the attribution of power to the Executive, and have no apprehension whatever of seeing it claimed for that branch, whose greatly preponderant strength, according to the opinion of

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eminent men and lovers of freedom, is the vice of the Constitution. Very singular results from this cause are manifested in the present day by men of the first ability in the country. One of them, abstaining from a direct assertion of the President's civil authority to suspend the privilege of the Writ, claims a military power of equal import for the Commander-in-Chief of the Militia called into service. Another claims to limit the military power to the capture of rebels in arms, or of those proximately present and aiding, without arms, and only such, and handing them over to the civil tribunals for trial — expressly denying the President's civil power, in rebellion, to detain anybody under the Habeas Corpus clause, and reducing his military power over captives in arms, to those of a district marshal, whose duty is to arrest for immediate trial before a court. A third prefers asserting an authority by martial law, to capture and detain at military discretion, superseding the municipal laws and authorities, ad libitum, during the prevalence of war in the country. A fourth denies all authority to the President, or to anybody but Congress, and the laws they ordain over the citizens and freemen of the country, even in a war of rebellion or invasion, precisely as in time of full peace. This is the Parliamentary doctrine before adverted to. It is impossible to imagine stronger evidence of the influence of a democratic Constitution upon the political opinions of men of great acuteness, some of whom at least are probably not democratic in the radical signification, as the Constitution certainly is not, though its spirit is largely democratic, fortified for the purposes of war, and for self-defence, with some pretty strong organic power. They withdraw by an acquired prejudice, from asserting a civil power in the President, the most clearly executive in its character, — the most clearly indicated in the Constitution by the conditions of its exercise — but the last to be thought of by them, because it carries power in that direction, which is against the gulf stream of Legislative authority, the great channel of the popular will of the moment. No apprehension of that nature has prevented the writer of this paper from expressing with moderation, and deference for contrary opinions, the suggestions of his own mind.

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The conclusion of the whole matter is this: that the Constitution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the Constitution, and that the Constitution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact, one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety. Whichever power of the constituted government can most properly decide these facts, is master of the exception, and competent to apply it. Whether it be Congress or the President, the power can only be derived by implication, as there is no express delegation of the power in the Constitution; and it must be derived to that department whose functions are the most appropriate to it. Congress cannot executively suspend. All that a Legislative body can do, is to authorize suspension, by giving that effect to an Executive act; and the Constitution having authorized that, there is no room for the exercise of Legislative power. The Constitution intended, that for the defence of the nation against rebellion and invasion, the power should always be kept open in either of these events, to be used by that department, which is the most competent in the same events to say what the public safety requires in this behalf. The President being the properest and the safest depositary of the power, and being the only power which can exercise it under real and effective responsibilities to the people, it is both constitutional and safe to argue, that the Constitution has placed it with him.

Pamphlet g

Edward Ingersoll Personal Liberty and Martial Lato: A Review of Some Pamphlets of the Day. Philadelphia, 1862 [One of the most emphatic defenders of wartime civil liberties was another Philadelphia lawyer, Edward Ingersoll, author of the comprehensive Personal Liberty and Martial Law. Ingersoll ( 1817-1893) was the descendant of a family notable for its espousal of unpopular causes. He was regarded as a radical Democrat, a former Jacksonian who took a Confederate view of the Constitution. He had been interested in civil liberties long before the Civil War; his History and Law of the Writ of Habeas Corpus had appeared in 1849. Early in the war when his political views led to his arrest, he obtained his release through the habeas corpus. Soon after Lincoln's assassination in April, 1865, he was assailed in the Philadelphia press for fresh criticisms of war measures, and while fending off a mob was again seized and jailed. He was released on bail the following day.]

April, 1862. DEAR MONTGOMERY, — I think it m u c h to your honor that y o u w e r e the first in Philadelphia to take the field in defence of Habeas Corpus, against the extraordinary constitutional assaults that have been m a d e upon it. M a n y h a v e since d r a w n their swords in its defence, b u t I have seen no blade more polished or more effective than your own. I have extended m y remarks to the subject of martial law. You and I agreed in thinking that our distinguished fellow townsman, w h o m L o r d John Russel truly spoke of in the House of Lords, as the head of the bar in America, and w h o he said had argued his case " w i t h m u c h ingenuity;" had m a d e as great a mistake in assuming that the rightful suspension of the writ of Habeas Corpus in America deprived the citizen of all other constitutional guaranties of freedom, as he had in arguing, that the right to suspend the privilege

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of the writ belonged to the Executive. The subject is, perhaps, already burdened with better criticism than mine, but in these days of our country's calamity, when the despotic hand is abroad and the liberty of the press as well as the writ of Habeas Corpus is suspended; it may not be unbecoming in an humble citizen to give token of the faith that is in him. Believe me, Very truly, Your Friend, E D W A R D INGERSOLL.

John T. Montgomery, Esquire. and Revolution start strange topics of discussion. If any one, whether lawyer or layman, but an intelligent, not yet impassioned man, having an idea constitutional or legal, or who had ever given a thought to the American Government, had been told so lately as the year i860, that at this day we would be discussing the question of the rightful power of the President of the United States to arrest and imprison its citizens at his discretion, what would such auditor have said? Would any earthly information have convinced him that such futurity was close at hand? Yet here we have it upon us, in such shape that it cannot be denied; and when the AttorneyGeneral of the United States, Professor Joel Parker at Cambridge, Mr. Reverdy Johnson at Washington, and Mr. Horace Binney at Philadelphia, have written pamphlets to demonstrate that such is the American constitutional law, and above all, we know that the exercise of this power is the now American fact, it seems vain any longer to say it is impossible, and turn from its consideration. We venture the proposition that governmental madness has never yet accomplished anything in this world. We mean by no means to disparage the element or the idea of popular or individual violence or madness. It is a great idea, of infinite worth and power. When Mr. Stanton, in his proclamation in which he attacked "infidel" France, appealed to this mighty passion of fanaticism, he showed that he understood its value, as Joshua whom he refers to, did, and as all great men have. But he showed too, that though he is a distinguished lawyer, he misunderstood his case politically. The Northern side in this great sectional civil strife in which our unhappy country is embarked, has, we must not forget, possession of the government; posCIVIL WAR

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session of the governmental idea. This is what is now called "the Union." It is so far the great element of the Northern strength. It is the head, the heart, the life of the Northern cause. We can no more afford to forget it, or for a moment to lay it aside, because it is for that moment an incumbrance, or does not advance the purpose immediately in hand, than can a marching army leave behind their General, because he must be carried in a coach, being from an attack of gout, unable to sit his horse. This governmental idea which is the great Northern General, the element of their strength, is we submit, incompatible with madness, fanaticism, revolution. All we agree great ideas, great things to accomplish certain designs, but not the design we have in hand. This spirit has, upon many great occasions, been appealed to with transcendant success; the most famous of all in late days having been that of "infidel" France herself, when by its means, she succeeded in hurling back the armies of Europe which were leagued for her subjection. But no instance can be given in history of its use for governmental purposes. It has overthrown governments but has never upheld them. The latter is our side of the game, and it has enormous advantages, as we have already seen; but it has not all the advantages. This revolutionary power, whatever it may be worth, belongs to revolution. It is a weapon the federal Government cannot use. The popular delight at what is called strong government, which we have seen exhibited in this matter; the idea being that the more violence, and illegal violence, government exhibits the more does it exhibit its earnest passion and the more likely is it to succeed, is in our political situation a profound mistake. If, in a physical encounter, the opponents are equally unskilled, passion is no doubt a great element of success; but government is like pugilistic science, and when one of the parties has that advantage added to his power, he must not only not forget himself in passion, but his skill enables him to take advantage of the passion of his opponent, which he turns to weakness. The administration is responsible to the people for the peaceful government of the whole country, and to that accountability they will undoubtedly be held. He is the worst enemy, not only to his country, but to the administration, who, in this time of peril, doubts, or suggests to them a doubt, of the wisdom of standing by that Constitution which they have received and sworn to uphold. The ship of state is in a storm, this is not the time to question her staunchness

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or to suggest alterations in her build. As is said to have been said, by high executive authority upon occasion of a late popular effort to remove from office a secretary of one of the departments, "it is no time for swapping horses when we are swimming the river." Our American horse may be a bad one, a proportion of our people has always disparaged him, and desired a change. If he, however, cannot now save us, we are surely lost. Our only chance of safety is now in him. Who is so disloyal to the government as he who at this time doubts its practicability; who either from pride of opinion, lust of power, or more ignoble fear, desires that the American guides and landmarks should be set aside, and some others taken in their stead; who questions the integrity or soundness of the great maxims of American free government. Conservatism is our only chance of safety. Conservatism of our own American institutions; such as our forefathers gave, such as our people have lived under and understand. Liberty of speech, liberty of the press, liberty of the person. All wrong perhaps, but the only guides that we know, the only lights that our people recognize, the only landmarks that they understand. They are as essential to the safe conduct of the government in this hour of peril, as they are to the happiness of the people; and it is as great administrative madness in the emergency, to attempt to throw them aside, as it is indicative of popular madness, to be willing to relinquish them. A free press like a free person is of American nature, the inferiority or superiority of which great men have differed about. Bonaparte was strongly of one mind upon the subject, Mr. Jefferson of the other. Good or bad, they are American; our people and government understand them, and they understand no other. A free press would have been our protection against a repetition of such diplomatic blunders as our secretaries committed in the case of "unique" Austria and "infidel" France; not so good a protection no doubt as a good censorship of the press, but still a protection. The only possible chance for the federal government in this our day of calamity, is, as it ought to be, to stand by our American principles. This subject of the governmental control over personal liberty has been discussed in the pamphlets above referred to, in two points of view: First, as a power derivable to the executive from the Constitution itself, in what we may call the Habeas Corpus clause. Second, as a military incident to the executive power, the President being, by the Constitution, the head of the military power of the government.

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This latter view of the matter, although excluded by Mr. Binney from his consideration of the subject, is in fact comprehended in it. Although he argues only the power of suspending the Habeas Corpus, he infers and takes for granted that this exclusion from discharge from arrest, carries with it also the right to arrest and imprison, as well as to hold. This goes to show, as is, w e submit, the truth, that the question involved, is after all, divide it as you will and point it as you please, the great question of personal liberty as opposed to governmental restraint of that liberty for its own purposes whatever they may be. The clause in question, which appears in the ninth section of the first article of the Constitution, is in these words: " T h e privilege of the writ of Habeas Corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it." The Federal Constitution of 1 7 8 7 has, during more than seventy years, been the subject of very extended and elaborate consideration. This more or less in all and every part of it. Many books have been written in elucidation and explanation of its every clause and section. This particular Habeas Corpus clause has been over and again at the hands of judges, legislators and text writers, a frequent subject of thought and comment. It came up broadly for the consideration of the nation and its legislators, in the year 1807, when the question of action under its provisions was practically before the public. Thus during the seventy years of the existence of this fundamental law of our Government, this particular subject has been before a free, talking, writing, thinking people, and has been, as history shows, during that time freely and much discussed, written and talked about. It was always, and by everybody, considered a matter of vast and vital importance; perhaps of vaster and more vital importance than any one other matter of our fundamental law. During this long period of time, and this frequent handling of the matter, there has been no whisper of difference of opinion or views upon this point. 1 All have been agreed that the power to suspend the privilege of the writ of Habeas Corpus was a legislative power. It has been so asserted and assumed by authors, legislators and judges, 1 Mr. Lieber, to whom Mr. Binney dedicates his pamphlet, and whose work, on civil liberty and self-government, is spoken of as containing "some striking and impressive remarks upon the mere negation of power to government," says, at p. 1 3 1 , vol. x, "We have seen already under what circumstances our Constitution permits the suspension of the Habeas Corpus, and that this cannot be done by the President alone, but by Congress only, need hardly be mentioned."

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and upon occasions innumerable. No dissent has ever been given, no doubt has ever been expressed. This popular right, as claimed, was supposed to have a great historical root. It had not been created by Americans in 1787; but had always, in their books of history, been claimed by them as of great ancestral foundation and descent. In this condition of the subject, which we have stated very briefly, and which would well bear a fuller statement, for it is important to every argument fully to understand the condition and position of the subject-matter at the time when the question for discussion was first suggested, this constitutional point, as it is claimed to be, was first taken. In 1861 this American right was violated, as would have been said before that day, or as the writers above named tell us, it was enquired into and found to have no foundation, — in fact that there was no such existence. It was found that the proper exercise of the constitutional provision for the suspension of the privilege of the writ of Habeas Corpus, was the exercise of an executive not of a legislative power. To support the affirmative of this proposition required, beside the usual positive argument, an abnegation of the past, and closing of the book of history, which was extremely difficult. It required belief, that the men who had just carried America through a bloody political struggle of more than seven years' duration, a struggle for political liberty, had laid aside their dear bought experience of humanity and of government, and attempted something new, something Utopian, something not analogous to the past, but which yet those best practised of all political philosophers dreamed would live in the future. It was not only necessary to furnish the new eyes for our observation of the clause, but to close the old ones. This, the exclusion of what is called the English analogy, was plainly the most difficult part of the author's task. It well might prove so to any legal mind. The right so to exclude historical authority in this question of personal liberty; the truth of the averment that "the language of the Habeas Corpus clause in the Constitution was new, and is peculiar," (p. 7,) which is the foundation of the whole argument, has been so completely taken from beneath the author's feet, that it would be now both presumptuous and unnecessary to attempt here, again, what has been already so thoroughly done.2 It has been • On this point of the history of the words of the clause, we may refer especially to a learned and much labored pamphlet by James F. Johnston, Esquire, of Philadelphia, entitled "The Suspending Power and the writ of Habeas Corpus."

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shown, that the words of the clause instead of being new, as is claimed for them, and purposed to express some new and unprecedented idea; are individually and in the precise collocation in which we have them in the Constitution, to be found in precedents innumerable, in English and American history, — both judicial and legislative. Our title to this, our precious inheritance of English analogy, in this question of popular liberty, having been thus written in the skies, Mr. Binney's pamphlet is answered; for he himself concedes, that unless this English analogy can be excluded, what he calls the legal argument is conclusive against his view.3 Still the subject is of such vast importance, and the "ingenuity" of some of the arguments of this pamphlet is so thorough, that we will be pardoned some further discussion of it. Indeed, the view suggested being professedly original and disclaiming the basis of authority, the only way to meet such argument must be by analyzing and examining in detail the logical soundness of the positions that are taken. Argument without reference to the past is philosophical speculation; as argument it soon becomes impossible; this early compelled the writer to a distinction, which it is submitted is entirely sophistical and unsound, namely, a distinction in speaking of the English Constitution, between what is called the common law and parliamentary practice. No such line can be drawn. By the common law we are told the English subject enjoyed the privilege of the Habeas 8 The value of pedigree in showing title to liberty seems to be differently esteemed by Sir Dudley Diggs. We quote from his address to the Lords, as one of a Committee of the Commons, on occasion of a conference during the proceedings which led to the Petition of right: "Whilst we, the Commons, out of our good affections, were seeking for money, we found, I cannot say a book of the Law, but many, and those fundamental points thereof neglected and broken, which has occasioned our desire of this conference: wherein 1 am first commanded to show to your Lordships in general, that the laws of England are grounded on reason more ancient than books, consisting much in unwritten custom, yet so full of justice and true equity that your most honorable predecessors and ancestors many times propugned them with a nolumus mutari; and so ancient, that from the Saxon days, notwithstanding the injuries and ruins of time, they have continued in most parts the same, as may appear in old remaining monuments of the Laws of Ethelbert, the first Christian King of Kent, Ina the King of the West-Saxons, Offa of the Mercians, and of Alfred the Great Monarch, who united the Saxon Heptarchy, whose laws are yet to be seen, published, as some think, by Parliament, as he says to that end, Ut qui sub uno rege, sub una lege regerentur. And though the book of Litchfield, speaking of the troublesome times of the Danes, says, that then jus sopitum erat in regno, leges et consuetudines sopitae sunt and prava voluntas, vis et violentia magis regnabant quam judicia vel justitia; Yet by the blessing of God, a good king Edward, commonly called St. Edward, did awaken those laws, and as the old words are Excitatas reparavit, reparatas decoravit, decoratas confirmavit. Which confirmavit shows, that good king Edward did not give those Laws, which William the Conqueror, and all his successors since that time have sworn unto."

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Corpus in all cases, "the principle allows of no exception or qualification," &c., (p. 13.) The argument then goes on to assert: "The principle, therefore, of the old common law that every freeman is entitled at all times and in all cases to be exempt from discretionary and arbitrary imprisonment, has, in England, come practically to this, that he is entitled to it unless parliament shall, in their discretion, see fit to take it away for a time, by giving the power of such imprisonment to the king in council, or to one of the king's principal secretaries of state, or, perhaps, to any body they see fit." (p. 14.) We are then told that the people of America meant, in framing their Constitution, to take as their analogy this, which is called the common law, and reject what is called parliamentary practice. This distinction we submit to be, as unfounded in legal and English constitutional theory, as it is in historical fact. That which is disparagingly spoken of, as "the pleasure of parliament," was always part of the English Constitution. No exceptional clause of modern introduction, but expressed and comprehended in the great Charter quoted for this common law distinction, by the words "per legem terrae." There never was a time in English constitutional history when this power of suspending the writ did not exist. It always, with them, resided somewhere. No historical question can be made on that point. The controversy always was, where does it reside; with the parliament or with the crown? "The formal contest for the possession of this discretion to imprison and detain without trial," marked the change in the English Government from monarchy to aristocracy, and thence to democracy, as this power over the "lex terrae" has resided in one or other of these departments of government, from the conquest to this time. Again, this power which under the American Constitution is inferentially in the legislature, from the nature of free institutions, and by analogy to the English Constitution, is granted by no clause in the fundamental law. In order to get it to the Executive, it was necessary to show an express grant. This, which is vital to the argument, is assumed by what is called supplying an ellipsis — sophistically so assumed, for the clause in the Constitution is not an enabling but a disabling clause: not a grant of power, but a restraint of power. Mr. Duponceau speaks of this clause (View, p. 44,) as one of the articles in the Constitution, "in the nature of a Bill of Rights, and the object of which is to secure the liberty of the citizen;" not a grant of power

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to any department of the Government. Mr. Hamilton so speaks of it in No. 84 of the Federalist, and quotes, in that connection, the famous passage from 1 Blackstone, 136, to show that the protection of the person is more essential to liberty than the protection of life or property. Mr. Pinckney, introducing the subject to the attention of the Convention on the 28th August, when the clause was adopted, did so "arguing the propriety of securing the benefit of the Habeas Corpus in the most ample manner." He was securing a right, not granting a power. Professor Parker himself contends, that the Habeas Corpus clause in the Constitution, is no grant of power to any body, and takes Merryman's case sharply to task on this point. He says: "Starting as Mr. Chief Justice Taney did, with the grave error in his premises of supposing a restraint upon a power to be a grant of it, it is not surprising that he did not reach any right conclusion on the subject. It would have been wonderful had he done so." This assumption of a grant of power, which is essential to Mr. Binney's argument, will be found to run through the whole of it. The clause in question, in its history in the Convention, first appears in Mr. Pinckney's plan. Mr. Binney, quoting it from there, remarks: "The different subjects of this paragraph have no common relation between them, except that they are all restrictive." (p. 24.) This alone, w e reply, sufficiently connects them; and would apply them to the legislature. There is in the American Constitution, no restriction applied to any other than the legislative power, either State or Federal. There was no other power to restrict. The legislative power is, so to speak, a natural power; it is the representative of the popular power; an existence before the Constitution, which its framers were moulding. The executive power had no such existence; it is a creation of the Constitution. In the American idea of Government, there is no prerogative of the executive. He has nothing but what is given him. W e find him restricted in nothing. 4 A restriction 4

Mr. Binney tells us, in speaking (p. 3 3 ) of the clauses of Sec. 9, Art. 1 of the Constitution, that "one of them restrains the executive department." This, it is suggested, is a mistake. The clause referred to probably, is in these words: " N o money shall be drawn from the treasury but in consequence of appropriations made by law." This can hardly be considered such an article b y any one who has ever read Mr. Binney's great speech to show legislative control over the treasury as distinguished from executive control, when the author of the decision in Merryman's case removed the deposits from the Bank of the United States. The other clause, " N o person holding any office of profit or trust under them (the United States) shall, without the consent of Congress, accept of any present," &c., can hardly be the clause referred to.

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would have been in contradiction of the theory of this creation. Not so the legislative power; it had from analogy to all free governments, a very different nature and foundation for its existence. In democratic government it is the foundation of every thing — all honor and power. It represents all power as in a monarchy does the monarch; and restrictions are upon it in a constitutional democracy, as in a constitutional monarchy they are upon the king. We accordingly, in the Federal Constitution, find restrictions upon no other than this popular power; not surely because other powers are unrestricted, but that there were none others existing than this. To escape from analogical explanation or historical reference for the true meaning of the words used; to show that "the language of the Habeas Corpus clause in the Constitution was new and is peculiar," the history of the clause, as appearing in the debates in the Convention that framed the Federal Constitution, is gone into by our author. The clause finally passed into our Federal Constitution, almost in the very words in which it was originally proposed by Mr. Pinckney, in the plan of a Constitution which he submitted. He having most plainly built upon English parliamentary analogy, and proposed the clause as a restriction upon supposed or apprehended legislative power; not at all as a grant of power, as it is necessary to the argument to view it; Mr. Pinckney stands directly in the way, and must be got rid of. He was also unfortunate enough, on the 20th August, in reviving his idea to use the words "suspended by the Legislature," in speaking of the restriction upon the privilege of Habeas Corpus. This collocation of the words instead of putting "the Legislature," in the beginning of the paragraph, as he had done on the 29th May, closes the door for argument as to his meaning, and Mr. Binney agrees it "to be free from doubt, notwithstanding the obliquity of the language and the imperfect grammatical structure of the sentence." But Mr. Pinckney is unfortunate, on the 20th August, in putting to flight another of the author's theories; for he uses the phrase, "the privileges and benefits of the writ of Habeas Corpus shall be enjoyed," &c. Thus explaining the meaning of the word privilege which he was using; and showing that his mind was entirely unconscious of the value of the term as we have now learned it, and unaware that, by the use of this word privilege, not "of the common law, nor of Blackstone its commentator, nor of parliamentary law," he was imperilling the liberties of his country. Again, on

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this fatal 20th August, Mr. Pinckney substituted for the words "except in case of rebellion or invasion," the words "except upon the most urgent and pressing occasions." This explanation of his former phrase again damages the argument, viz: that the phrase as it now stands in the Federal Constitution, "unless when in cases of rebellion or invasion, the public safety may require it" is a grant of power, of executive power, no authority to authorize; giving a power to be exercised in a condition of things, about which there can be no dispute; struck out as it were at one heat; not for dull legislative discussion, but ascertained and definite. Mr. Pinckney's equivalent phrase "most urgent and pressing occasions," well illustrates the "requirements of the public safety." Mr. Pinckney has fallen into the English analogy, past hope of recovery. He has "indicated a disposition to throw away that striking and important qualification of the privilege which had been expressed in his plan of a Federal Constitution, and to substitute for it the discretion of the Legislature on the most urgent and pressing occasions, the omnipotent discretion of parliament, and it would have brought the Constitution in this respect into perfect identity with the Constitution of England with a maximum limitation of time, instead of the pleasure of parliament." (p. 27.) Mr. Pinckney has failed to make the discovery, that suspending the privilege, as distinguished from, suspending the benefit, or the right, or the writ, when the public safety may require it, transferred the control over this great subject of personal liberty from the people's representatives to the Executive. He has fallen into the English analogy. He spoke three times upon the subject, and it was difficult to move more than once, without showing this English cloven foot. He clearly did not understand the idea; as to the expression we are told, "whether Mr. Pinckney was the first to express this limitation of the right of personal liberty is not material. He would be more entitled to credit for first introducing it with his plan of a Federal Constitution, if he had not subsequently appeared willing to throw it away." (p. 26.) Mr. Pinckney has said too much, he plainly had not this great idea in his mind; and strange as it may appear, Mr. Madison who next comes before us, is rebuked for not having said enough. This rather unkindly, for Mr. Madison, in only reporting the proceedings, unlike Mr. Pinckney, stood in the way of nobody's argument or view of the question. Our author rather goes out of his way to tell us that Mr. Madison has given "but a brief and

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meagre statement," and that "none can read his work with attention, without surmising that on some occasions much more was said than is recorded, and that this probably was one of them." In support of this idea, there is quoted from the report of debate, "Mr. Rutledge was for declaring the Habeas Corpus inviolate. He did not conceive that a suspension could ever be necessary at the same time in all the States." The author then comments, "This cannot have been all that Mr. Rutledge said. The conclusion of his remark is in apparent contradiction to the beginning, which expressed his opinion that the Habeas Corpus should be declared inviolable. The latter part seems to regard suspension of the writ or act as the object, and as being either local or general, and not as personal. It was a clear mistake.5 The whole remark is however obscure, and there may be some reason to doubt whether the reporter's mind or the delegate's, embraced the technical doctrine upon the subject." Mr. Rutledge, it must be remembered, was in a deliberative assembly, giving his views which others might in part or in whole agree with or dissent from. He was not striking out an executive phrase, to be as definite and certain in its limits, as the requirements of the public safety. In these two sentences he gave his views; expressing perhaps his first and second choice in the matter. In the latter, no doubt, he fell like Mr. Pinckney into the English analogy. In that point of view, "It was a clear mistake." That neither the reporter's mind nor the delegate's embraced the technical doctrine upon the subject, (unless indeed by "the technical doctrine" be meant this executive idea of the power as opposed to the legislative, ) is a questionable doubt to raise against such names as Madison and Rutledge, particularly when we bear it in mind that our author has left the merely legal and artificial view of the subject which he agrees to be against him, and is now discussing the constitutional and natural view. After his consideration of the history of the matter, to be found in the debates of the Convention which framed the Constitution, the author comes to the conclusion that enough is there recorded to show that the idea which he is endeavouring to enforce as the true one, viz: of a great distinction between, suspension of the privilege, and suspension of the act, or writ, must have been in the minds of the delegates. We 6 Mr. Reverdy Johnson has written an article on this subject, where he takes the ground that the suspension of the Habeas Corpus, under the clause in the Constitution, must be always local or general, not personal.

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can only ask in the minds of which of the delegates, and what has shown it? Is this proving the point, or as the author says of Judge Story, "demanding or extorting it." Again, as the first object of a free people is the preservation of their liberty; and liberty is only to be preserved by maintaining constitutional restraints and just divisions of political power; in no instrument, more than the Federal Constitution, would verbal location be a fair guide, in solving a question of power as belonging to one or other of the departments of government. It is with the most careful precision divided into seven articles. The first treating of the Legislative; the second of the Executive; the third of the Judiciary; the fourth of the inter State relations, new States and territories and protection of the States of the Union; the fifth, providing the form of amending the Constitution; the sixth, providing certain sanctions and results not coming properly under any of the preceding heads; the seventh, stipulating that upon ratification by nine States, the Constitution shall go into effect. The division of the powers of government into legislative, executive, and judicial, is here not only expressly recognized, but as far as language could succinctly do so, these departments are carefully and precisely separated. This was considered a matter of cardinal importance to the liberty of the country. It so appears by the debates in the convention on the 17th and 19th of July. It so appears by some of the papers in the Federalist, answering the charge that had been made against the Constitution, of confusion of these departments of power; and where Mr. Madison contends that they had been separated as much as it was possible to do. This anxious division of powers was a favorite American doctrine. It so appears, as in many other places, in the Maryland Declaration of Rights in 1776, art. 6. In the teeth of all this, we are told that "no instrument permits the interpretation of its clauses to be affected by position less than the Constitution of the United States." (p. 34.) And again, "The present position of the clause in the Constitution is not of the least importance;" and the history of the formation of this clause in the Constitution, is offered to show that its position in the legislative division of that instrument, gives it no title to be considered as belonging to the legislative, rather than the executive department of the government. It appears that when the clause was finally adopted, the convention had under debate the judiciary article. The introduction of the

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subject by Mr. Pinckney at that time, upon examination of page 484 of Mr. Madison's debates, appears the most natural thing possible. The clause securing trial by jury had just been disposed of. The cognate subject of Habeas Corpus most naturally suggested itself. Mr. Pinckney introduced the topic; and the final shape was given by motion of Mr. Gouverneur Morris. Thus adopted in the convention, it was by the committee on style and arrangement transferred to the legislative article. Of this committee Mr. Morris was a member. Mr. Binney says, "Whatever was his ( Mr. Morris's ) intention, the place assigned by him to the amendment did as it were expressly negative the bearing of Mr. Pinckney's motion upon the Legislature." Can anything be more forced than this conclusion, of a matter which looks perfectly natural and simple upon its face, and entirely otherwise. How could Mr. Pinckney's legislative idea be negatived by what was done, when he himself introduced the topic; the convention having at the time under consideration the judiciary article; and how can Mr. Morris be said to have assigned this place to the amendment, which it temporarily occupied, when he did not introduce the topic. Yet we are told, (p. 33.) on such a basis of argument as this that the "position (of the clause in question) in the ninth section of the first article of the Constitution, is not only of no avail, but the argument from position is more than countervailed by expression; and is emphatically overcome by the journal of the Convention." This subject of Habeas Corpus was as closely cognate to the judicial as to the popular power; but does showing, that it might have been or was in the article regulating either or both of these departments, bring it at all nearer akin to the Executive? The author comes out of his historical enquiries into the formation of the clause, worse than he went into them. He has not succeeded in showing his ideas of the matter to have been in the mind of any one of the makers; he has shown their ideas to have been inconsistent with his; and the English analogy has frequently obtruded itself on him. He does not think so, and we are told that "the word legislature, which was contained in Mr. Pinckney's plan of a Federal Constitution, and probably also in his motion when the subject was finally disposed of, was thus cast aside and an entirely new form and new limitations were given to the principle." If the former part of this proposition has been proved, the latter is undoubtedly true. More different limitations could not possibly be conceived; they are

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as wide apart as Turkey from America, and as discordant as the principles of their respective governments. Again, an argument is drawn from analogy to the pardoning power; from that power being placed, by the Federal Constitution, in executive hands. It is a curious fact, but going to show that it is the old question that we are discussing, that when this subject of Habeas Corpus and the question of the control of the crown over it, was under debate in the English commons house, in 1628, the Attorney-General, in arguing the case for the crown, used among others precisely this same argument. It was answered by Mr. Glanville, who concludes quaintly: "Therefore the king may safely be trusted with war, coin, denizens and pardons, but not with a power to imprison without expression of cause or limitation of time; as the poet tells us, because libertas potius auro." (7 St. Trials, 184.) Again we are told, and the point is much labored, in order to the abnegation of our right to the history of English liberties, as leading to the true location of this power, that English liberties were built upon a jealousy of executive power, but that no such jealousy could have existed against the presidential power in the formation of the American Government; and from this idea the argument claims support. We utterly deny the truth or soundness of any such idea. We answer, that that jealousy, the protection of liberty, is rooted in human nature, deeper and wider than English or American freedom. To show our title to it, we turn to the first great charter of American rights, the Declaration of Independence, where every protest and complaint is of executive tyranny and executive usurpation; where the inheritance of English freedom and English law, is not repudiated and disclaimed, as this author would persuade us was the purpose of our forefathers, in the formation of the Habeas Corpus clause of the Constitution; but English analogy is embraced and clung to as our most valued right and noblest inheritance. We turn to the debates in the Convention, and find Dr. Franklin, and others, expressing the greatest apprehensions of executive power. We quote the beautiful boast of Sir William Blackstone, then in the hands of every American lawyer and legislator, on this very subject of imprisonment of the person: "Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any, the highest magistrate, to imprison arbitrarily whomever he or his officers

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thought proper, (as in France is daily practised by the crown,) there would soon be an end to all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the Commonwealth than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.0 And yet, sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing." We quote on this point the eloquent words of Mr. Webster, at a time when a portion of our citizens, of whom the learned author of the pamphlet under discussion was one, were indignant and incensed, and thought the public safety vastly imperilled by what they considered American executive usurpation: "The contest for ages has been to rescue liberty from the grasp of executive power. Whoever has engaged in her sacred cause, from β The wisdom and truth of this remark, the people of America are at this moment in a political condition to realize. Who of their fellow citizens out of the circle of their immediate relatives and personal friends, now knows whether the Maryland legislators and police commissioners are still in prison or out of it, alive or dead? We have lost sight of them. They have been put, by the hand of power, beyond the reach of law; and yet the act that did it was as violent an infraction of both liberty and law, as ever was committed by Cromwell, Napoleon, or his greater uncle. Still we dine and smile and thank God we are free. Sir Robert Phillips, in 1627, well expressed the idea that this is the most important of all rights: "I can live (he said), although another without title be put to live with me; nay, I can live although I pay excises and impositions for more than I do; but to have my liberty, which is the soul of my life, taken from me by power, and to be put up in a gaol without remedy by law, and thus to be so adjudged to perish in gaol; O improvident ancestors! O unwise forefathers! to be so curious in providing for the quiet possession of our lands and liberties of parliament, and to neglect our personal bodies and to let them die in prison and that durante bene placito, remediless. If this be law, what do we talk of our liberties?"

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the days of the downfall of those great aristocracies which had stood between the king and the people, to the time of our own independence, has struggled for the accomplishment of that single object. On the long list of the champions of human freedom there is not one name dimmed by the reproach of advocating the extension of executive authority; on the contrary, the uniform and steady purpose of all such champions has been to limit and restrain it. Popular and representative right has kept up its warfare against prerogative, with various success; sometimes writing the history of a whole age in blood, sometimes witnessing the martyrdom of Sidneys and Rüssels, often baffled and repulsed, but still gaining on the whole, and holding what it gained with a grasp which nothing but the complete extinction of its own being could compel it to relinquish. At length the great conquest over executive power in the leading western States of Europe, has been accomplished. The feudal system, like other stupendous fabrics of past ages, is known only by the rubbish which it has left behind it. Crowned heads have been compelled to submit to the restraints of law; and the people, with that intelligence and that spirit which make their voice resistless, have been able to say to prerogative, 'Thus far shalt thou come, and no farther.' I need hardly say, sir, that into the full enjoyment of all which Europe has reached only through such slow and painful steps, we sprang at once by the declaration of independence, and by the establishment of free representative Governments; Governments borrowing more or less from the models of other free states, but strengthened, secured, improved in their symmetry and deepened in their foundation, by those great men of our own country whose names will be as familiar to future times as if they were written on the arch of the sky. Through all this history of the contest for liberty, executive power has been regarded as a lion that must be caged. So far from being the object of enlightened popular trust, so far from being considered the natural protector of popular right, it has been dreaded, uniformly, always dreaded, as the great source of its danger." Again, we are told that suspension of the privilege of the writ of Habeas Corpus is rightfully under our Constitution within the control of the Executive, not of the popular department of the government, because the requirements of the public safety in case of rebellion or invasion is matter of Executive, rather than of Legis-

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lative cognizance. "The power to imprison and to deny or delay a discharge from an imprisonment, is an executive power. All the conditions of the exercise of the power described in the Habeas Corpus clause are of executive cognizance, that is to say rebellion or invasion, and the requirement of the public safety in the time of either. No legislative act is necessary or proper to give the cognizance of these facts to the executive department." (p. 7.) And again, "The direction of such a war (an internal war) is necessarily with the executive. The office cannot be deprived of it." (p. 8.) These are strange sounding phrases to an American ear. Is this the American Constitution? Is this phrase "when the public safety may require it" the expression of a definite and certain condition of facts about which no two men can differ, as the author labors to persuade us; or is it, wide and general, indefinite, unbounded, conferring as unlimited a discretion as words could be framed to convey? "The requirements of the public safety!" who can possibly judge of them but the supreme power, and where does that reside in a popular government? We are told that this is an executive clause, conferring therefore an executive power. Is not, in this sense, all power executive that requires execution? The executive is the arm of power; but the question is, who moves that arm? Is not the power of making war executive; yet who declares war under our Constitution? Is not, in this sense, the power of taxation executive? The law must be enforced; the tax must be collected. The political principles set forth upon the latter pages of the pamphlet, if placed as an introduction to the argument, would have paved the way to its intelligibility, and made it less marvellous, that the reputation of a great legal name should be cast into such a breach. Cui bono we ask? We have not yet seen the legal argument to show that the Constitution ex visceribus authorizes the Executive head of the nation to suppress newspapers. We have the fact, and we may have the argument. It would not be more astonishing to the American people than what has already appeared. Why strain the constitutional cloth upon occasion when no possible effort of that sort can make it cover the breach that it is required to conceal. The quotations from De Tocqueville, that one of the inherent dangers of republican constitutions arises from the dependence of the Executive upon the Legislative department, and Mr. De Tocqueville's illustrating this fact from the American Constitution, seem

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strangely introduced in support of an argument, to show that this dictatorial power is conferred upon our Executive. As a political view in a convention framing a Constitution, it is well put: how here, where the argument is not what ought to be, but what is, our form of government. It is strange to set forth what "according to the opinion of eminent men and lovers of freedom is the vice of the Constitution," (p. 56), viz: weakness of the executive department, as a conclusion to an argument made to show that it has no such weakness but the most dictatorial strength. The minds of these eminent men and lovers of freedom, like some others that have been passed upon, did not embrace our "technical doctrine on the subject." "It was a clear mistake" on their part. Great American names have been treated cavalierly throughout the argument; when that of Mr. Jefferson turns up, the greatest American apostle of this dreadful and dreaded democracy, the mask of argument is almost thrown aside. W e are given to understand that the precedent made by Mr. Jefferson, of suggestion to Congress to suspend the Habeas Corpus, was not from honest belief that such was the proper exercise of the power under the Constitution of the government he was administering; but "that he might safely exercise it under their wing." We are told, "There was nothing like either (rebellion or invasion) in the land. Happily, there was virtue enough in the House of Representatives, or enough of alienation from Mr. Jefferson," (an equivalent for virtue?) "to make the House reject the bill by an immense majority." It does not appear from his message to the Senate, that Mr. Jefferson suggested the suspension of the writ of Habeas Corpus. As to the statement of 1861, that there was neither rebellion nor invasion then in the land, Mr. Jefferson may have pretended it; but by turning to the debate in the House of Representatives, we find upon that point of fact, that not only the supporters of the bill, but some of those who most strongly opposed it, like Mr. Eppes, agreed that of the existence of rebellion there was no doubt. The point of discussion was principally, not as to the fact of rebellion, but as to the requirements of the public safety.7 7 Mr. Eppes says, "Of the existence of the rebellion, or combination against the authority of the United States, there can be no doubt, as we have on our table a detailed account of its origin and progress." Mr. Varnum says, "Will gentlemen deny that there exists in the United States at present a rebellion? I presume not, it is too notorious to admit of doubt." Mr. Sloan says, "What analogy do these oppositions bear to this rebellion? I con-

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This matter, taken in connection with the contemptuous disclaimer of the fact in the pamphlet of 1861, is very pertinent to our point of the definiteness and certainty, the executive character of the fact of "rebellion;" much more the "requirements of the public safety." When does the fact of "rebellion" begin? If a citizen knocks down a constable armed with a warrant for his arrest, is that "rebellion" against the authority of the laws? We are told that "in the case of actual rebellion and actual invasion, the declaration or proclamation of the facts is not legislative but executive; and so is the decision of what the public safety may require, for that is a conclusion of fact from other facts within the range of the same executive duty." And again, "all experience teaches us that the only safe depositary of the power of suspending the privilege of the writ of Habeas Corpus, in time of rebellion, is that feeble executive which the Constitution has made for us, standing upon the only basis of the Constitution, with no other support than the integrity and patriotism of the man who has been elected to it by the people." This, we are told, is the "fundamental rule of personal liberty among freemen in the United States;" that "it is conservative of personal freedom in general." We are well told, that it is "un-English." When such doctrines as these become governmental with us, it is time for Americans to look anxiously to, what the author of the pamphlet calls, the "margin of disobedience;" whose occupants, we are told, have generally the most occasion for the writ of Habeas Corpus. The "margin of disobedience" to such doctrines as these! England's best names have lived, and many of them have laid down their lives upon that margin. The best ancestral blood of the present English secretary of foreign affairs, and that to sider the late or present conspiracy to be of greater magnitude than any we know of in history." Mr. Bidwell says, "The first inquiry would naturally turn upon the existence of a rebellion. On that point he had no doubt." . . . "An existing rebellion, even of this aggravated description, was not alone sufficient to justify a suspension of the writ of Habeas Corpus. To bring it within constitutional justification, it must be required by the public safety." Mr. Elliot says, "Is it indeed a case of rebellion? W e are officially informed that rebellion has reared its hydra front in the peaceful valleys of the west." . . . "and the executive possessing all this information, assures us that the public safety is not endangered." Mr. Bartvell says, "The President evidently holds out the idea that the correct and proper mode of proceeding can be had under the existing laws of the United States." Mr. Smilie says, "The President declares that in his opinion there is no danger to be apprehended."

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which he no doubt most proudly points, was spilled upon that margin. Upon the fourth of July, 1776, the men who put their names to our Declaration of Independence, all stood upon that margin; endangering their own freedom no doubt; but, that we of this day, if not utterly unworthy of the inheritance they bequeathed us, might live free. This is the great American margin: our most glorious possession and inheritance. God forbid that we should disparage it. — Not the margin of disobedience to the laws, but to executive encroachment upon those laws. But Secondly, we leave the great question of the right to suspend the privilege of the writ of Habeas Corpus, and come to the greater question of what is called Martial Law. As made to meet the present emergencies, the arguments in hand require more, to reach their conclusions, than any construction of the Habeas Corpus clause in the Constitution can give them. Had the Federal Constitution said expressly, and in so many words, that the Executive should have the power in his discretion, to suspend the privilege of the writ of Habeas Corpus, such clause standing in conjunction with the other clauses of the Constitution as we have them, would by no means carry, by any legitimate argument, to the conclusions of power, at which the gentlemen, whose pamphlets we are discussing, arrive. Such clause would be entirely insufficient to gratify the present appetite for violence; this thing which is so erroneously considered an evidence of governmental strength. Governmental violence, it is in our emergency, the highest duty, and the exercise of that duty is the highest wisdom, of the prominent and thinking men of the nation to protect us from. Grant the view to be the sound one, that the Presidential power may suspend the Habeas Corpus at will; is it possible that the exercise of such power plunges us into a despotism; abrogates all law; establishes a dictatorship; authorizes what we have seen, men taken from their homes by violence, and carried to distant prisons upon a telegraphic order from a secretary of that Executive; those homes being hundreds of miles from any military force, or the possibility of military collision? Is it possible that under a suspension of the privilege of the writ of Habeas Corpus, never so legitimately made, a newspaper reporter, the most unmilitary of all creatures, but still a citizen, can be, as we are told to-day, seized under military

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order, without oath or judicial warrant, to be tried by a court martial? Had the executive applied to Congress, as he should have done, under his oath to preserve, protect and defend the Constitution, for power to suspend the privilege of the writ of Habeas Corpus, the power no doubt would have been granted him in a moment. God forbid that we should then have been in America, in the legal or constitutional position in which the insanity of the hour claims to plunge us. There are guarantees of free government, in the Federal Constitution, beside the restriction upon the power to suspend the writ of Habeas Corpus; not one of them, perhaps, as fundamental and important as the one we have been discussing, but still fundamental and of vast importance. These are stated in our charter in broad terms, in plain English; not exceptionally; introduced by no conjunctions; dependent upon no location or collocation for their full understanding: of which, perhaps, we may know the meaning without analogy or reference to other things; so plain that human ingenuity cannot discuss their meaning. We give some of these American rights: "The trial of all crimes, except in cases of impeachment, shall be by jury." "No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." "No person shall be deprived of life, liberty or property, without due process of law." "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." Now what do our authors do with these? Mr. Binney assumes to the Executive the whole judicial power necessary to get the citizen in jail, without one word of argument; he includes the right to arrest in the question of discharge from arrest. Professor Parker and Mr. Reverdy Johnson, put the matter on the military ground, as super-

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seding all civil rights; that these are guaranties not meant for times of war or civil commotion; the holiday suits of freedom, to be laid aside upon a rainy day; not meant to bear the wear and tear of human nature. The roof of our constitutional house is, they say, made of material not fit to resist the weather; but when the storm comes, to be withdrawn and some other cover put over our heads. The differences among our authors are somewhat curious. While Mr. Binney so anxiously seeks the needed power in the Habeas Corpus clause as the only possible place to find it, Mr. Johnson claims that to be entirely unnecessary, gives up that clause liberally to Congress, and finds elsewhere in the Constitution the needed dictatorship; abundantly and triumphantly. The Attorney-General, in his argument, derives the required power from the civil side of the presidential office, expressly disclaiming, nay, arguing against the military idea of it. Professor Parker and Mr. Johnson, on the other hand, not only claim the power as a military part of the presidential creation, but expressly disclaim the possibility of its being, under our Constitution, a part of his civil functions. If it is a civil function, they say it must belong to Congress. Mr. Johnson tells us, "the power which the President has exercised and intends to maintain, is vested in him as Commander-in-Chief. It is strictly and exclusively a military power." The Attorney-General tells us, "He (the President) is a civil magistrate, not a military chief; and in this regard we see a striking proof of the generality of the sentiment prevailing in this country at the time of the formation of our Government, to the effect that the military ought to be held in strict subordination to the civil power." The Attorney-General, starting with the broadest and fairest disclaimer that the Federal Government has any powers not expressly given to it, tells us that "they, (the founders of the government,) seem to have been actuated by a special dread of the unity of power, and hence, in framing the Constitution, they preferred to take the risk of leaving some good undone, for lack of power in the agent, rather than arm any governmental officer with such great powers for evil as are implied in the dictatorial charge to 'see that no damage comes to the Commonwealth.'" With such premises he gains the needed power thus, "all the other officers of Government are required to swear only 'to support this

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Constitution;' while the President to 'preserve, protect and defend' it, which implies the power to perform what he is required in so solemn a manner to undertake. And then follows the broad and compendious injunction, to 'take care that the laws be faithfully executed.' " &c. "Would the writer argue, ( said Mr. Webster in the Senate on the 7th May, 1834,) that the oath itself is any grant of power; or that because the President is to "preserve, protect and defend the Constitution," he is, therefore, to use what means he pleases, or any means for such preservation, protection and defence, except those which the Constitution and the laws have specifically given him? Such an argument would be preposterous." In starting to answer the second question proposed to him, the Attorney-General states so accurately his argument upon the first, that we give it in his own words. Two questions had been propounded by the Government to the Law officer: ist. As to the right of the President to arrest at his discretion and hold in custody, persons, &c.: 2d. His right to refuse to obey a writ of Habeas Corpus in such cases. The Attorney-General says: "Having assumed in answering the first question, that the President has the legal discretionary power to arrest and imprison persons who are guilty of holding criminal intercourse with men engaged in a great and dangerous insurrection, or persons suspected with 'probable cause' of such criminal complicity, it might seem unnecessary to go into any prolonged argument to prove that in such a case the President is fully justified in refusing to obey a writ of Habeas Corpus issued by a court or judge, commanding him to produce the body of his prisoner, and state when he took him, and by what authority and for what cause he detains him in custody — and then yield himself to judgment, 'to do, submit to and receive whatsoever the judge or court awarding the writ shall consider in that behalf.' " This is the substance of the paper, and is capital opinion in one sense, but not in the sense of argument. "Having assumed," as he tells us, the first and transcendent power, the second, he tells us truly, may not be worth talking about. The radical error of the argument seems to be, in his idea that this co-ordinate, independent branch of the Government is not to carry out the laws and thus attain the end of its creation, but that the President is to execute the offices of Govern-

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ment according to his personal ideas of the most direct and proper means to attain the governmental end. "The mere denomination of a department as one of the three great and commonly acknowledged departments of Government, does not confer on that department any power at all," said Mr. Webster, in commenting on the clause "the executive power shall be vested in a President." Not so, Mr. Johnson, but holding this dictatorial power to be conferred by the clause in the Constitution, "the executive power shall be vested in a President," he tells us, that the restricted nature of the powers of our Federal Government, which he concedes, applies only to the legislative and judiciary departments, but not to the executive! Again, arguing the power to the Executive, he says, "If the war power of every government may declare martial law, and this no one has yet denied — then it must have the power, as one of the admitted incidents of martial law, to disregard the writ in question." Quere the war power in our government? Professor Parker, assuming boldly the ground of the subjection of the civil to the military power in time of war, and arguing "ad absurdum" the impossibility of any other footing of things; says that, excepting one or two cases to the contrary in Massachusetts, which he quotes, there is no such thing known to the books, as Habeas Corpus in time of war to relieve from war arrest. We answer, if foreign war is meant, that is true; for a prisoner of war can have no Habeas Corpus. If civil war is meant, intestine commotion, which is our matter in hand; the books are not only full of such cases, but political questions on writs of Habeas Corpus have arisen in no other than such times as these. The Habeas Corpus is not only not a holiday suit, but as a political writ it is made for no other than a rainy day. Mr. Parker, having argued his question of the necessity of martial law, assumes the power to the President. We answer with the petition of right; which, if it granted the existence of such power, denied it to the king. All these gentlemen have strongly in their minds the idea, and it is the broad basis of all their arguments, that the dictatorial power must exist somewhere; that there are emergencies such as we are in, when human nature calls for it and human government to be permanent, must have it. This idea we believe to be un-American, in

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the fullest sense, and the very antagonistic idea, as the AttorneyGeneral has told us, of that which lies at the root of the Federal government. Do not let us however forget, that to sustain the argument they have advanced, they must go vastly further. They must not satisfy us only, that our Federal government contains this dictatorial power; but that it contains it, the emergency not to be declared as in Rome by the aristocratic or the popular power, not to be declared as in England by the aristocratic and the popular power, but to be declared by the same head that is to enjoy it, by the same hand that is to wield it, — the limits, ( the requirements of the public safety in case of rebellion or invasion,) as broad and casing as the general air. The worth of these limits is well stated by the Chief Justice in Merryman's case, where he says, "The introduction of these words is a standing admonition to the legislative body of the danger of suspending it, (the writ,) and of the extreme caution they should exercise before they give the government of the United States such power over the liberty of a citizen." They are this, and nothing more. Not to speak of more policied and difficult governments; when has there been a time that within the extended limits of peaceful America, this discretion might not have been used, foully to rouse rebellion, or fairly to suppress it? Did the anti-rent troubles in New York present such a case? Did the Mormon and the Kansas difficulties present such a case? Does the present refusal in Allegheny county, in Pennsylvania, to pay the interest on certain bonds, make such a case of rebellion; or how long would it take a designing executive hand to give these cases such a presentation? We have then the broad question; the power of dictator given to the executive department by the Constitution in emergency; the executive himself to judge of and declare that emergency. Is this American? We have given some of the clauses and guaranties from the Federal Constitution that seem to make it impossible. Is it answer enough to say, that our charter of government did not contemplate the emergencies of government, and was not purposed to meet them? Is it answer to say, that the presidential oath of office implies powers that over-ride these guaranties; that the phrase "the executive power shall be vested in a president" is a phrase implying such power, as to overthrow the whole fabric? If these are arguments or sufficient answers, then are our written guaranties of freedom worse than useless; then indeed does our fondly cherished title

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by descent vanish, and nothing remains for the support of popular rights, but the strong arm of the hour, whatever may be its worth. That the claimant of governmental power must show title to it is the basis of English, as well as of American liberty. We have carried this doctrine farther than they have. It has always been the great landmark in American constitutional construction. It is the most prominent idea, in all construction of our written Constitutions; largely applied to the State governments, but most fully, and by its founders most anxiously, to the Federal Constitution. It is expressed in Amendments, Arts. 9 and 10. "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." "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." De Lolme speaks thus of this basis of liberty, in his view of the English government. Contrasting in this respect England with other countries, after saying that in other countries, the executive power of the State is supposed to possess originally and by itself all manner of lawful authority; that every one of its exertions is deemed to be legal, not ceasing to be so until they are stopped by some express and positive regulation, &c., he continues, "In England, the very reverse obtains. It is not the authority of the government, it is the liberty of the subject which is supposed to be unbounded. All the actions of an individual are supposed to be lawful, till that law is pointed at, which makes them to be otherwise. The onus probandi is here transferred from the subject to the prince. The subject is not at any time to show the ground of his conduct when the sovereign or magistrate think proper to exert themselves; it is their business to find out and produce the law in their own favor, and the prohibition against the subject." Book 2, chap. 17. The idea which some of the gentlemen upon whose views of executive power we are commenting, seem rather to resent, that the executive is nothing but the administrator of the law, the servant of the law, the mouthpiece of the law, is as true in England, as it is in America. Unless we reject ancestral history, this battle of freedom has been fought and won. This is a truth, the establishment of which cost Charles the First his head, and spilled the blood of ten thousand better men, though of none so exalted in the government as he. This was the great cause and ground of quarrel during all the bloody

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and dreadful years which led to the 30th January, 1649. The question, whether the law was superior to the executive, or the executive superior to the law; whether the English House of Commons, the popular representative, was to judge of the requirements of the public safety in cases of rebellion, with which the land was then teeming, or the executive was to be the sole judge. The "mandatum domini regis" was determined to be legally the mandate of the executive only as the mouthpiece of the law. The superiority of the law to the executive power was the very fact, the establishment of which established popular government. The question, whether the executive or the legislative department of the government, is to judge of "the requirements of the public safety in case of rebellion or invasion," amounts in its elements to the question of despotism or free representative government. To show that even in its ancient phraseology, it bears a curious resemblance to the matter we are discussing, we refer to the question of the crown to the judges in the great ship money case of John Hampden, in 1637. That question was in these words, "When the good and safety of the kingdom in general is concerned, and the whole kingdom is in danger; whether may not the king, by writ under the great seal of England, command all the subjects of this kingdom at their charge to provide and furnish such number of ships with men, victuals and munition, and for such time as he shall think fit, for the defence and safeguard of the kingdom from such danger and peril, and by law compel the doing thereof in case of refusal or refractoriness? and whether in such case is not the king sole judge both of the danger, and when and how the same is to be prevented and avoided?" The first and last lines of this question which we have italicised, are almost our subject in hand. The subservience of the executive to the legislative power, was the very question in dispute. It came up, in questions of the right to be discharged by Habeas Corpus from arrest. Inasmuch as the writ of Habeas Corpus was then used, not as now, for a judicial enquiry into the guilt or innocence of a party accused, but for an enquiry into the legality of his arrest, the question made by it, was more precisely our second question than our first, viz: the right to the protection of judicial process for arrest, rather than a right to that process for discharge from arrest. A proper commitment was at that day sufficient to hold for trial. The question was of the legality

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of the commitment. Was the command of the executive enough, or must it be the command of the law. The "lex tense" was defined by Mr. Seiden,8 and Mr. Littleton,9 in their arguments before the House of Commons to mean "due process of law;" as distinguished from executive will or power. "The very point, scope, and drift of magna charta, was to reduce the regal to a legal power, in matter of imprisonment, or else it had not been worthy so much contending for." 10 When the "sovereign executive power" was proposed by the lords as a salvo to the petition of right, the Commons rejected it; Sir Edward Coke saying, "Magna charta is such a fellow that he will have no sovereign;" and Sir Thomas Wentworth, "our laws are not acquainted with sovereign power." (7 State Trials, 199.) In all these proceedings and revolutionary commotions by which it was established that the executive was nothing but the mouthpiece of the law, the question made against it was of his civil prerogative. The monstrous idea of the hour, that there is a provided military executive power, as distinguished from the legislative, in free government, which supersedes and over-rides all law and the process of law, remained for our discovery. Such an idea cannot be found in the English Constitution or the history of its contests between the legislative and executive power. It was as the head of the judiciary that the king claimed the right to commit. This judicial right was denied him, unless done through the judicial organ. Not that his being the head of the judicial department of government, was denied; but his prerogative so derived must be exercised through a responsible functionary. The process of law gave that responsibility. The very question was then, not of his right to commit; but, of his right to commit other than by process of law. This judicial function, a part of the royal prerogative as the head of all the departments of the government, was not personal to the crown; nor could it be delegated but to a judicial functionary. Thus the king himself had no power to imprison but by due process of law. Nihil aliud potest rex quam id solum quod de jure potest. The personal power of the king does not exceed that of the subject. Thus Year Book 39, Hen. VI., 17, holds, "If the king commandeth one to arrest another, and the party commanded arrest the other, an action of 8

7 State Trials, 1 4 8 . 157. Sir Benj. Rudyard, 7 State Trials, 190.

'Ib. 10

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trespass or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the king." The arrest by privy councillors, well known to the English constitution, which is an exercise of the royal prerogative, and is done by them as a mouthpiece of the king, 11 is an exercise of a judicial prerogative of the crown. The learning and history on this subject, and the derivation of these judicial functions to the privy councillors and ministers of the crown, from the king as chief conservator of the peace, was fully gone into by Lord Camden in the case of Entick v. Carrington, which was twice argued before him, and is reported in the App. to 1 1 St. Trials, p. 313. The right to arrest for libel, which was denied to a secretary of state, was denied to him as a judicial function. It is held that where by the law, power to issue a warrant is given to the high conservators, who are not strictly judicial, ( as privy councillors, ) it is as a branch of the king's judicial prerogative; he being the head of the judicial as of all other power. The idea of Executive prerogative has surely no existence in the American Constitution. The idea that the Executive is the head of the judicial department of the Government, is in direct contradiction to the anxious theory of every American Constitution, State as well as Federal. Where, without one or other of these sources of derivation, can we get the authority, Habeas Corpus or no Habeas Corpus, for imprisonment by the executive department of the Government without the intermediary process of judicial commitment? Yet we have seen it exercised by secretaries of the Executive, having no possible judicial function under the American Constitution. An effort by the English executive of the present day to raise his civil head in any governmental emergency above the law, or to claim for an hour or in any event a power derived from necessity to which he could show no clear title, and which he undertook to exercise without the authorization of the popular branch of the government, would be to the last degree revolutionary and selfdestructive. A military claim to the exercise of such power, without the intervention of the popular department, would not be at all less extraordinary. Such claim has never been made there in their worst days; when the executive claimed to supersede the legislative power, it was as the head of the civil not of the military power of the government. 11

Staunf. 726.

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The strict subordination of the military to the civil power, in and out of governmental emergency, is at the foundation of freedom in that as it is in this, and must be in all countries. On this subject De Lolme says: "All offences committed by persons of the military profession, in regard to individuals belonging to other classes of the people, are to be determined upon by the civil judge. Any use they make of their force, unless expressly authorized and directed by the civil magistrate, let the occasion be what it may, makes them liable to be convicted of murder for any life that may be lost. To allege the duties or customs of their profession in extenuation of any offence, is a plea which the judge will not so much as understand. Whenever claimed by the civil power, they must be delivered up immediately." Book 2, chap. 17. Cases need not be quoted to sustain this as the English law. The question has been very seriously made, as in Sutton v. Johnstone,12 whether, the military adjudication within its jurisdiction, was not subject to civil review; but no question has been made of the exclusion of the military power from exercise over any person who has not put himself out of the pale of the civil power. In the case of Lieutenant Frye, who brought suit against Admiral Mayne and Captain Rentoue, for improperly subjecting him to the penalties of military law, the members of the court martial complained to the Lords of the Admiralty of the legal proceeding; and the result of an altercation of some months was an apology to the power of the law. Chief Justice Willes, having read it in open court, ordered its registry in the remembrance office, as a "memorial to the present and future ages, that whoever set themselves above the law will, in the end, find themselves mistaken." In Mostyn v. Fabrigas, which was an action of trespass against the Governor of Minorca, for false imprisonment, the objection that his official position protected him from the action was rejected by Lord Mansfield, who says: "I remember early in my time, being counsel in an action brought by a carpenter in a train of artillery, against Governor Sabine, who was Governor of Gibraltar, and who had barely confirmed the sentence of a court martial by which the plaintiff had been tried and sentenced to be whipped. The governor was very ably defended, but nobody ever thought that the action would not lie; and it being proved at the trial that the tradesman who followed the train was not liable to martial law, the court were 12

1 Term Reps. 493.

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of that opinion; and the jury accordingly found the defendant guilty of the trespass, as having had a share in the sentence, and gave £-500 damages." In the case of Mitchell v. Harmony,13 Colonel Mitchell, who served under General Kearney in a military expedition into New Mexico during the Mexican war, was held liable to the action of a trading camp follower, for the destruction and taking away of his property in the legitimate course of military proceedings. Chief Justice Taney, speaking of the doctrines of Lord Mansfield in Mostyn v. Fabrigas, says: "This case shows how carefully the rights of private property are guarded by the laws of England, and they are certainly not less valued nor less securely guarded under the Constitution and laws of the United States." The Petition of right put an end in England to all question of the power of the Executive to declare the military superior to the civil arm of the Government, in any emergency. Martial law, which is the expression of that idea, and which had been freely used by the Executive power, is by the Petition of right condemned as an illegal violence, not to be used again. The whole governmental power in England has never since attempted the exertion of such authority: we mean the subjection of all the powers of government to the executive will; or the establishment by law of such dictatorial power as is claimed to be conferred by the Constitution on the President to set aside all law. It may be said that the Parliament is omnipotent under their Constitution, and could, therefore, exercise such authority. Such exercise of power would certainly be as revolutionary, and as much an overthrow of their form of government, as to make the tenure of the crown for life or a term of years. The Parliament of Great Britain has frequently suspended the privilege of the writ of Habeas Corpus. This, we have endeavored to show, is the exclusion of the citizen from the benefit of a civil function of the Government; but no more bringing him under military or executive rule, than does the exclusion from trial by jury in a chancery proceeding, take the property of the citizen in such proceeding out of all judicial pale and protection. The idea that the Constitution of the United States, has for a moment, or in any emergency, subjected the power and majesty of the law to the military power, as existing somewhere by necessary ideas of Government, or as derived to the executive from 13 13 Howard, 115.

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general or specific clauses in the paper, is as answerable and as unanswerable under the English as under the American Government. It is the idea of organized violence as opposed to the idea of organized free government, or organized government more or less free. The suspension of the writ of Habeas Corpus, as an incident of martial law; or as a lawful exercise of military power, derived to the President as Commander-in-Chief, which involve the same idea, is a subject, so to speak, beyond discussion; certainly apart from it. When that comes, God save us. Constitution and law and human reason are alike silent and at an end; power and instinct take their place. It is no longer the power of the law and the instinct of reason that we look to; but the power of violence and the instinct of selfpreservation. What is this Martial Law, so much now upon men's tongues? We answer, there is no such law; there is no such provided thing. The law military is a well understood existence, governing with regular provisions the men who belong to it, and the territory within which it is supreme. The time when, under an organized government, this military law is supreme over the civil law, is never. What is called martial law is a cessation of law; when from military necessity, within reach of the military arm, and for a short and undefined time, the constitution and laws, that is with us the Government, is disobeyed and disregarded. This condition of things is abnormal; it is inconsistent with the existence of free government; it is the spasm of the body politic. It is necessarily undefined, and its continuance must be short, or the governmental life is at end.14 No organized 14 The practical operation of what is called Martial Law, may be illustrated by an extract which we make from the final report lately made by the commission on war claims at St. Louis. Ex. Doc. No. 94: "Notwithstanding that martial law had been declared, and the freedom of the popular mind had suffered great repression from the presence of the stem power which had thus announced itself, the indignation excited among the mechanics was such that the conduct of the quartermaster, and especially of his architect, was freely spoken of. Among the persons who ventured to speak of the transaction as it occurred was a Mr. Pond, who was interested with his son-in-law (Mr. Clapp) in a bid for the roofing made by the latter. When his words were carried to the ears of Quartermaster McKinstry — then Provost Marshal — he sent a summons ordering him to appear before him; and upon his doing so, and admitting that he had derived his information from Clapp, a file of soldiers was ordered to arrest the latter, and to conduct him into Provost Marshal McKinstry's presence. What occurred then and immediately before we present in the language of Mr. Pond, who was present as one of the accused, and gave his testimony before us under oath. "Charles H. Pond, sworn: — I got a letter, purporting to come from McKinstry's office, to come to his office. This was in the middle of the afternoon. I did not go that

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government has provided for martial law, any more than it would provide for its own governmental dissolution. This is especially true of a free government; where anything like constitutional provision afternoon, and when I got home my wife told me that a gentleman had been there, and ordered me to appear before McKinstry at his house that night at seven o'clock. I went there precisely at seven, and the serving girl told me that McKinstry had been gone a half an hour, and would not be in before eleven. The next morning I found him in the street, and he told me to come to his ofRce; that he did not do business out in the street. I went to his office, and handed him the little summons he sent me. He said, 'Yes, you have been reporting about this city that I or my agents have been swindling the government.' I told him that Mr. Clapp, my son-in-law, came to me, and wanted to know if I would take a contract with him for putting on the roofing on Benton barracks; that I told Clapp that I would, if everything was all right; that Clapp said he would give me one-third of the profits, provided I would take hold with him; that there was nothing more said at that time between Clapp and me; that the next day Clapp met me, and said, Ί think I shall get that contract,' and I asked him why. Says he, Ί have given Mr. Ogden, Mr. McKinstry's agent, a draft in favor of P. L. Bierce for $700.' Then I told Clapp that I did not want to have anything to do with it, if that was the case. McKinstry says, 'Did Clapp tell you that?' I said, 'Yes, sir.' 'Well, you shall prove it, or, by God, I will send you down to the arsenal or Cairo [I can't say which] and put you on bread and water.' I said, 'Send for Clapp;' and he spoke to Selover or some other person present: 'Have him arrested and brought in here forthwith.' They went out with an armed posse, and brought Clapp in in a few minutes. Says I, 'Mr. Clapp, did you not tell me that you agreed to give Ogden $700 to get this contract for you?" Says McKinstry, 'Stop! by God, I am lawyer enough to ask that question.' Says McKinstry to Clapp, 'Did you give Ogden $500 or $1?' Mr. Clapp said, 'No.' Then says McKinstry, Ί sentence you to the arsenal for five days on bread and water.' Says Clapp, 'Won't you let me explain?' 'No,' says McKinstry, 'you have got your sentence, or you may take such an oath as I will write,' or words amounting thereto. Says Clapp, Ί gave the draft to Ogden, and that Ogden wrote it, and he copied it.' McKinstry said again, 'You have got your sentence.' I then begged McKinstry to send for Bierce, and he did send for him, but got right up immediately out of his chair and said, 'The court is adjourned.' "During the conversation, while Clapp was there, McKinstry got right up and passed by me, and says: 'By Christ! I am going to stop the people of this city from talking about this quartermaster department's swindling.' McKinstry asked me, during the conversation, 'if I had reported what Clapp told me.' Ί told him that I had told it to Bay.' Thomson, the man who had got the contract for putting on the roofing, came up, and he whispered or spoke so low to McKinstry that I could not hear him. McKinstry got up and says to me, Ί understand one more thing, that Clapp refused to take the oath, and I sentence him to five days more at the arsenal on bread and water.' "Robert Campbell and John Howe, two merchants of this city, were there. "Every word and act of the Provost Marshal and Quartermaster McKinstry, throughout this interview, reeks with proofs of conscious and overwhelming guilt. The scene seems scarcely American. It suggests a barbaric age and Asiatic institutions. No Cadi of an eastern sultan, with the bastinado at his beck, could have been more coarsely insulting or more brutally despotic. With the ill-defined and then practically almost absolute powers of the provost marshal to silence criticism upon his administration as quartermaster, it may be safely inferred that after this storm of passion and profanity, McKinstry, for a time at least, had rest, and that the paths of his middle men, like his own, were paths of 'pleasantness and peace.' "As was to have been expected, the contract, thus fraudulently awarded, was faithlessly executed."

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for, or legal anticipation of such event, would interfere with the subsequent legal accountability, to which the actors in such political convulsion must be held. In that trial at the bar of organized government, the only plea is necessity; the only justification is to show, that to ward off the blow that was aimed at the governmental life, this use of the military arm alone was adequate.15 We say, martial law is not only unprovided for in the Federal Constitution, but that it is the idea hostile to all law, and incapable of legal expression. Sir Matthew Hale16 speaks thus of it: "But touching the business of martial law, these things are to be observed, viz: "First. That in truth and reality it is not a law, but something indulged rather than allowed as a law: the necessity of government, order, and discipline in the army, is that only which can give those laws a countenance, quod enirn necessitas cogit defendi. "Secondly. This indulged law was only to extend to members of the army, or to those of the opposite army; and never was so much indulged as intended to be executed or exercised upon others; for others who were not listed under the army, had no color or reason to be bound by military constitutions, applicable only to the army, whereof they were not parts; but they were to be ordered and governed according to the laws to which they were subject, though it were a time of war." Sir William Blackstone seems to go further, and doubt the exclusive applicability of the law military, to even its own department, in time of peace. He says,17 "For martial law which is built upon no settled principles, but is entirely arbitrary in its decisions, is as Sir Matthew Hale observes in truth and reality no law, but something indulged rather than allowed as law. The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when 15 As to this plea of necessity, Chief Justice Taney, in a question of military seizure of property, not liberty, says: (Mitchell v. Harmony, 13 Howard, 427) "But w e are clearly of opinion that in all these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity, in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." 16 Hist, of the Common Law, p. 34. 1 7 1 Comms. 413.

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the king's courts are open to all persons to receive justice according to the laws of the land." It cannot be fairly contended that the framers of the American Government intended in any respect to abridge or diminish the established principles, supposed to lie at the basis of all popular liberty. These general attributions of unlimited military power to the Federal executive, are difficult to answer, except by principles and generally, as they are asserted. They are like the doctrines of the higher law, not founded on reason, but a refuge and escape from it. They are inconsistent with organized government, and all the principles of organized governments repudiate them. W e have in questions concerning the Federal government the well established doctrine, conceded in broad terms by the Attorney-General, that it is above others a government of limited powers; but what avails such concession, if w e are afterwards told that from the oath of the executive to support the Constitution are to be implied to him unlimited and discretionary powers. W e have, in America, the strongest written guaranties of freedom, confirmed by our inheritance, giving us the benefit of English constitutional law and its provisions; and further strengthened by clauses in many of the State constitutions forbidding to any or all the branches of government to suspend the laws in any emergency. What are all these worth, if it is answer enough to tell us, as does Professor Parker, that war supersedes them all. If w e are asked whether the executive may destroy the freedom of speech or of the press, w e refer to the general principles of the government; and w e turn to the clause of the Constitution which says that "Congress shall make no law abridging the freedom of speech or of the press." The executive power is not limited in this clause, and if, as one of our authors tells us, the idea that the Federal government is one of limited powers applies only to the legislative and judicial departments, and not to the executive, why then undoubtedly the question is unanswered. In this question of military executive power, if such can seriously be made, w e have, as in the Habeas Corpus question, the abundant guidance of our own immediate ancestral lights. Not such lights as are just discovered or discoverable in the year 1 8 6 1 , when our country has enjoyed for half a century the slothful blessings of peace, and is just embarking in one of those periods of physical calamity, which seem, in the providence of God, to be necessary to the

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preservation or purification of poor human government; but such lights as were given by our forefathers, during, or just emerged from such a bloody strife; and were built upon like free principles so consecrated by their ancestral blood. On the 7th November, 1775, Lord Dunmore, Governor of Virginia, declared martial law to be enforced throughout the colony. He also declared freedom to all slaves capable of bearing arms, and belonging to rebels. The Virginia Convention, on December 13th, resolved it "to be in direct violation of the Constitution and laws of this country to declare martial law in force, and to be executed throughout this colony, whereby our lives, our liberty and property are arbitrarily subjected to his power and discretion," &c.18 The Maryland Declaration of Rights, November, 1776, contains clauses, "That in all cases and at all times the military ought to be under strict subordination to and control of the civil power." Art. 27. "That no person, except regular soldiers, mariners and marines in the service of this State or militia, when in actual service, ought in any case to be subject to or punishable by martial law." Art. 29. One of the complaints of the Declaration of Independence against the executive power is, "He has affected to render the military superior to the civil power." "That the military is, and in all cases and at all times shall be in strict subordination to the civil power," is a provision, in those or words of like import, to be found in almost all of the American State Constitutions. "Consider yourself in all your military offensive operations constantly as under the direction of the civil officer, saving where an armed force shall appear and oppose your marching to execute these orders," say Governor Bowdoin's instructions to Major General Lincoln, January 19th, 1787, Shay's insurrection. In the case of Lamb, brought up on Habeas Corpus on petition to be discharged from military arrest,19 Judge Bay speaks thus upon this subject, "If by martial law is understood that dreadful system the law of arms which in former times was exercised by the King of England and his lieutenants when his word was the law, and his will the power, by which it was exercised, I have no hesitation in saying that such a monster could not exist in this land of 18 18

4 Am. Archives, 4th series, pp. 778-781. Carolina Law Repository.

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liberty and freedom. The political atmosphere would destroy it in embryo. It was against such a tyrannical monster that we triumphed in our revolutionary conflict. Our fathers sealed the conquest by their blood, and their posterity will never permit it to tarnish our soil by its unhallowed feet, or harrow up the feelings of our gallant sons by its ghastly appearance. All our civil institutions forbid it; and the manly hearts of our countrymen are steeled against it. But if by the military code is to be understood the rules and regulations for the government of our men in arms, when marshalled in defence of our country's rights and honor, then I am bound to say there is nothing unconstitutional in such a system." Before this exercise of his military authority at New Orleans, General Jackson took the opinion of Mr. Livingston on this subject, which was as follows: "Martial law can only be justified by the necessity of the case. The General proclaims it at his risk and under his responsibility, not only to government but to individuals; because it is a measure unknown to the Constitution and laws of the United States. The effect of its proclamation is to bring all persons in the district comprised by it within the purview of such law, so that all those in that district capable of defending the country, are subject to such law by virtue of the proclamation, and may be tried by it during its continuance." In Johnson v. Duncan, 3 Martin, 157, the question of the right by proclamation of martial law, to suspend and supersede the functions of the civil magistrate, is considered. The idea that the suspension of the Habeas Corpus suspends all functions of the civil magistrate, and introduces martial law, is rejected as a bold and novel assertion; as well as the idea that any but the legislative power can suspend the Habeas Corpus. On the 30th June, 1813, during the war with Great Britain, Samuel Stacy, a citizen residing in St. Lawrence, a border county, was arrested by the order of Commodore Chauncey, and carried to Sackett's Harbor. He was charged with treasonable practices, in carrying provisions, and giving information to the enemy; he was claimed to be properly held by the Provost Martial, and to be triable by Court Martial. A writ of Habeas Corpus which was directed to General Lewis, showed by its return only a disclaimer of the custody of the prisoner. It appeared, from affidavits and circumstances in the case, that this was only an evasive return. Chief

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Justice Kent, who delivered the opinion of the Court, made no question of the duty of the law; except whether an attachment for contempt should issue forthwith against the General, or there should be first a rule to show cause why an attachment should not issue. He decided the former to be the duty of the Court; and an attachment forthwith was ordered. He says, "The pretended charge of treason, (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matter of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only aggravation of the oppression of the confinement. It is the indispensable duty of this Court and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of those means is this writ of Habeas Corpus, which has justly been deemed the glory of the English law; and the Parliament of England, as well as their Courts of Justice have on several occasions, and for the period of at least the two last centuries, shown the utmost solicitude, not only that the writ, when called for, should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate, in promptly enforcing a due return to the writ, when we recollect, that in this country the law knows no superior; and that in England their courts have taught us by a series of instructive examples to exact the strictest obedience, to whatever extent the persons to whom the writ is directed, may be clothed with power, or exalted in rank If ever a case called for the most prompt interposition of the Court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen; is holding him in the closest confinement, contemning the civil authority of the State." To this conclusive judicial decision against the argument he is making, that "distinction exists in respect to the duty of obedience to the writ of Habeas Corpus, in time of war and in time of peace," Professor Parker, acknowledging "the high character of the judicial tribunal which passed upon Stacy's case," tells us nevertheless as sufficient answer to the decision, "that the attention of the Court does not seem to have been directed for an instant to the question, whether the existence of the war at that time could have any effect

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upon the right of the military force to make the arrest, or of the commander to hold the party arrested." We can only say, that if this is the learning of the schools, it is not the practice of courts of law; if it were so, our constitutional decisions would be terribly unsettled by some of the views, now propounded to us; which, like the view suggested, that the limited nature of the powers of the Federal government is true of the legislative and judicial but not of the executive department, are original, beyond a question. Every case which has arisen of Habeas Corpus to try the validity of a military enlistment, is a similar assertion of the superiority of the civil over the military side of the government. These cases are familiar in every jurisdiction, where there has been a recruiting station, and as familiar in time of war as in time of peace. Necessity knows no law; and that is the rule by which a military commander declares what is called martial law. It is the same rule by which a citizen takes the life of a fellow citizen, who has burglariously entered his house, and is apparently meditating an assault upon his life. It is a sort of law unprovided by statute, which constitutions do not deal with; which is to be found neither on the civil, nor on the military side of any presidential power; nor of any legal or constitutional provision. The exercise of this power, the President as commander in chief may find when he takes the field, an incident to circumstances upon which he may fall, as may any inferior commander. In the Cabinet he has no such power; nor is it a thing that can be delegated. As "necessity knows no law," so "law knows no State necessity." Lord Camden speaks thus of it: "With respect to the argument of State necessity, or a distinction that has been aimed at, between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions." 20 If State necessity could be pleaded, as it cannot, what State necessity could be shown for the indignities and violences which have been put upon the law and which American lawyers are defending. Alas that the legal hands which should minister at the altar of the Constitution, should subserve to desecrate that altar. As the Chief Justice has well shown, was the power of the law inefficient or insufficient in Baltimore, when Mr. John Merryman was seized 20

Entick υ. Carrington, App. i l State Trials, 3 2 2 .

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by the military arm for a civil offence against the Government? Was the process of the law paralyzed in Philadelphia, when Mr. Butler was taken from his home under a secretary's order, to be imprisoned in a distant fortress? Was the process of the law paralyzed in Burlington, when Mr. Wall was so arrested and dragged to a distant prison? On the contrary, so poisoned and so violent was public opinion, that the process of the law would have had but one difficulty; that of doing justice to either of these two latter parties. The Government, instead of affording to these citizens their rights, catered to the disgraceful appetite of the hour, and violated the law that that appetite might be gratified. The military outrages upon the elective franchise in Maryland, the trial of newspaper publications by a military commission in Missouri, the military assault upon Judge Merrick, we will not stop to comment on; but these others are the acts of civil power, which great American legal names seem anxious to sacrifice themselves in vain effort to defend. When Bonaparte planned the 18th Brumaire for the overthrow of French constitutional liberty, because he thought the "public safety" required it, he said to General Lefebvre, who hesitated about joining him, come let us get rid of the government of these lawyers. No doubt they stood in his way. Those were the lawyers of France after she had supped full with horrors, and who felt the value of constitutional liberty; the growth was nerved to vigor by peril, and had not become sicklied o'er with the pale cast of peace, as in our day. The future alone can develop what may be in store for us; our country is too full of the vigorous intelligence which free institutions have given our people, to submit to an 18th Brumaire. We have, moreover, the States to protect us from that. There is nothing national on the one side or the other of the ruinous conflict into which the want of statesmanship has plunged us. This fatal subordination of government to partizan politics, is the canker of a calm world and a long peace; the canker of such physical prosperity and increase of wealth, as no people have ever before realized in the same space of years. Pennsylvania will be, like the other border States, the first to find the false and ruinous position into which sectional madness, not her own, has misled her. The national statesmanship of those in power, inscribes on the regimental colors symbols commemorative of their having been carried gallantly in these calamitous fraternal

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conflicts; the recollection of which must be buried deep in woe and oblivion, before our American national sun can shine again. When Cascina Severus, to flatter the emperor, proposed in the Roman Senate the erecting an altar to Vengeance to commemorate the death of Piso, Tiberius, who for twenty three years governed a nation, replied that public monuments should commemorate foreign conquests not domestic calamities, "ob externas ea victorias sacrari, domestica mala tristitia operienda." The division of our country, the only result which our friends across the water seem to contemplate, is impossible. Fortunately, no view of the problem is so difficult as that. We are realizing the irrepressible conflict. When the appetite for peace returns, as it will with violence, woe betide the rulers and the rule that may have committed themselves to its impossibility, or that may stand in the way of its realization. When the bitter strife has exhausted itself; when the irrepressible conflict has been repressed, and with it the miscreants whose only political existence is built upon the feuds and hatreds which could be found and fostered in American institutions, have met their fate, America will return to the Union which is associated with her every glory and which made her the envy and marvel of mankind. The Union is peace. The former as impossible of attainment but through the latter, as the latter is impossible of enjoyment without the former. In the meantime to stand by our American institutions, and the Federal Constitution, as exhibited and upheld by them, is a clear duty. The violences put upon it, the writhings and contortions of legal arguments to escape from it, all do it honor. They all show the impossibility of turning to the purposes of sectional strife and party violence this great instrument, which during seventy years ministered to the Government of a great and successful nation, and will assuredly in the providence of God resume its work.

Pamphlet

io

Wendell Phillips The War for the Union; A

Lecture.

New York, 1862 [Through the winter of 1861-1862, the most eloquent proponent of the Radical Republican course of action toward the South was Wendell Phillips. He received almost two hundred invitations to lecture that winter; his voice may have reached as many as fifty thousand people. Through the publication of his speeches in newspapers and pamphlets he is estimated to have reached five million. The message running through these speeches was: destroy slavery and bring the Southern oligarchy to its knees, then rebuild the South through the exertions of the simple people, the farmers, and the workingmen, both white and black. The program was identical to that which Radical leaders such as Thaddeus Stevens of Pennsylvania and Charles Sumner of Massachusetts were urging in Congress. Phillips (1811-1884), born in Boston and educated at Harvard, had been one of the most vehement abolitionists since the assassination of Elijah P. Lovejoy in 1837. In the years after the Civil War he continued active on behalf of reforms, especially improvement of the lot of laboring men. 1 ]

LADIES AND GENTLEMEN — It w o u l d b e impossible for m e

fitly

to thank you for this welcome; you will allow me, therefore, not to attempt it, but to avail myself of your patience to speak to you, as I have been invited to do, upon the war. I know, ladies and gentlemen, that actions — deeds, not words — are the fitting duty of the hour. Yet, still, cannon think in this day of ours, and it is only b y putting thought behind arms that w e render them worthy, in any degree, of the civilization of the nineteenth century. [Applause.] Besides, the Government has two thirds of a million of soldiers, and it has ships sufficient for its purpose. The 1 [Irving H. Bartlett, Wendell Phillips, Brahmin Radical (Boston, 1961); Rüssel Β. Nye, William Lloyd Garrison and the Humanitarian Reformers (Boston, 1955),

176.]

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only question seems to be, what the Government is to do with these forces? — in what path, and how far it shall tread? You and I come here to-night, not to criticise, not to find fault with the Cabinet. We come here to recognize the fact, that in moments like these, the statesmanship of the Cabinet is but a pine shingle upon the rapids of Niagara, borne which way the great popular heart and the national purpose direct. It is in vain now, with these scenes about us, in this crisis, to endeavor to create public opinion; too late now to educate twenty million of people. Our object now is to concentrate and to manifest, to make evident and to make intense, the matured purpose of the nation. We are to show the world, if it be indeed so, that democratic institutions are strong enough for such an hour as this. Very terrible as is the conspiracy, momentous as is the peril, Democracy welcomes the struggle, confident that she stands like no delicately-poised throne in the Old World, but, like the pyramid, on its broadest base, able to be patient with national evils — generously patient with the long forbearance of three generations — and strong enough when, after that they reveal themselves in their own inevitable and hideous proportions, to pronounce and execute the unanimous verdict — Death! Now, gentlemen, it is in such a spirit, with such a purpose, that I come before you to-night to sustain this war. Whence came this war? You and I need not curiously investigate. While Mr. Everett on one side, and Mr. Sumner on the other, agree, you and I may take for granted the opinion of two such opposite statesmen — the result of the common sense of this side of the water and the other — that slavery is the root of this war. [Applause.] I know some men have loved to trace it to disappointed ambition, to the success of the Republican party, convincing 300,000 nobles at the South, who have hitherto furnished us the most of the Presidents, Generals, Judges, and Ambassadors we needed, that they would have leave to stay at home, and that twenty million of Northerners would take their share in public affairs. I do not think that cause equal to the result. Other men before Jefferson Davis and Gov. Wise have been disappointed of the Presidency. Henry Clay, Daniel Webster, and Stephen A. Douglas were more than once disappointed, and yet who believes that either of these great men could have armed the North to avenge his wrongs? Why, then, should these pigmies of the South be able to do what the giants I have

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named could never achieve? Simply because there is a radical difference between the two sections, and that difference is slavery. A party victory may have been the occasion of this outbreak. So a tea-chest was the occasion of the Revolution, and it went to the bottom of Boston harbor on the night of the 16th of December, 1773; but that tea-chest was not the cause of the Revolution, neither is Jefferson Davis the cause of the rebellion. If you will look upon the map, and notice that every slave State has joined or tried to join the rebellion, and no free State has done so, I think you will not doubt substantially the origin of this convulsion. Now, ladies and gentlemen, you know me — those of you who know me at all — simply as an Abolitionist. I am proud and glad that you should have known me as such. In the twenty-five years that are gone — I say it with no wish to offend any man before me — but in the quarter of a century that has passed, I could find no place where an American could stand with decent self-respect, except in constant, uncontrollable and loud protest against the sin of his native land. But, ladies and gentlemen, do not imagine that I come here to-night to speak simply and exclusively as an Abolitionist. My interest in this war, simply and exclusively as an Abolitionist, is about as much gone as yours in a novel where the hero has won the lady, and the marriage has been comfortably celebrated in the last chapter. I know the danger of political prophecy — a kaleidoscope of which not even a Yankee can guess the next combination— but for all that, I venture to offer my opinion, that on this continent the system of domestic slavery has received its deathblow. [Loud and long-continued applause.] Let me tell you why I think so. Leaving out of view war with England, which I do not expect, there are but three paths out of this war. One is, the North conquers; the other is, the South conquers; and the third is, a compromise. Now, if the North conquers, or there be a compromise, one or the other of two things must come — either the old Constitution or a new one. I believe that, so far as the slavery clauses of the Constitution of '89 are concerned, it is dead. It seems to me impossible that the thrifty and painstaking North, after keeping 600,000 men idle for two or three years, at a cost of two million dollars a day; after that flag lowered at Sumter; after Baker, and Lyon, and Ellsworth, and Winthrop, and Putnam, and Wesselhoeft have given their lives to quell the rebellion; after our Massachusetts boys,

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hurrying from plowed field and workshop to save the capital, have been foully murdered on the pavements of Baltimore — I can not believe in a North so lost, so craven, as to put back slavery where it stood on the 4th of March last. [Cheers.] But if there be reconstruction without those slave clauses, then in a little while, longer or shorter, slavery dies — indeed, on any other basis but the basis of '89, she has nothing else now to do but to die. On the contrary, if the South — no, I can not say conquers — my lips will not form that word — but if she balks us of victory, the only way she can do it is to write Emancipation on her own banner, and thus bribe the friends of liberty in Europe to allow its aristocrats and traders to divide the majestic Republic whose growth and trade they fear and envy. Either way the slave goes free. Unless England flings her fleets along the coast, the South can never spring into separate existence, except from the basis of negro freedom; and I, for one, can not yet believe that the North will consent again to share his chains. Exclusively, as an Abolitionist, therefore, I have little more interest in this war than the frontiersman's wife had in his struggle with the bear, when she didn't care which whipped. But before I leave the Abolitionists, let me say one word. Some men say we are the cause of this war. Gentlemen, you do us too much honor! If it be so, we have reason to be proud of it; for in my heart, as an American, I believe this year the most glorious of the Republic since '76. The North, craven and contented until now, like Mammon, saw nothing even in heaven but the golden pavement; to-day she throws off her chains. We have a North, as Daniel Webster said. This is no epoch for nations to blush at. England might blush in 1620, when Englishmen trembled at a fool's frown, and were silent when James forbade them to think; but not in 1649, when an outraged people cut off his son's head. Massachusetts might have blushed a year or two ago, when an insolent Virginian, standing on Bunker Hill, insulted the Commonwealth, and then dragged her citizens to Washington to tell what they knew about John Brown; but she has no reason to blush to-day, when she holds that same impudent Senator an acknowledged felon in her prison fort. In my view, the bloodiest war ever waged is infinitely better than the happiest slavery that ever fattened men into obedience. And yet I love peace. But it is real peace; not peace such as we have had; not peace that meant lynch law in the Carolinas and mob law in

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New York; not peace that meant chains around Boston CourtHouse, a gag on the lips of statesmen, and the slave sobbing himself to sleep in curses. No more such peace for me; no peace that is not born of justice, and does not recognize the rights of every race and every man. Some men say they would view this war as white men. I condescend to no such narrowness. I view it as an American citizen, proud to be the citizen of an empire that knows neither black nor white, neither Saxon nor Indian, but holds an equal scepter over all. [Loud cheers.] If I am to love my country, it must be lovable; if I am to honor it, it must be worthy of respect. What is the function God gives us — what is the breadth of responsibility he lays upon us? An empire, the home of every race, every creed, every tongue, to whose citizens is committed, if not the only, then the grandest system of pure self-government. De Tocqueville tells us that all nations and all ages tend with inevitable certainty to this result, but he points out, as history does, this land as the normal school of the nations, set by God to try the experiment of popular education and popular government, to remove the obstacles, point out the dangers, find the best way, encourage the timid, and hasten the world's progress. Let us see to it, that with such a crisis and such a past, neither the ignorance, nor the heedlessness, nor the cowardice of Americans forfeits this high honor, won for us by the toils of two generations, given to us by the blessing of Providence. It is as a citizen of the leading State of this Western Continent, vast in territory, and yet its territory nothing when compared with the grandeur of its past and the majesty of its future — it is as such a citizen that I wish, for one, to find out my duty, express as an individual my opinion, and aid thereby the Cabinet in doing its duty under such responsibility. It does not lie in one man to ruin us, nor in one man to save us, nor in a dozen. It lies in the twenty million, in the thirty million, of thirty-four States. Now, how do we stand? In a war — not only that, but a terrific war — not a war sprung from the caprice of a woman, the spite of a priest, the flickering ambition of a prince, as wars usually have; but a war inevitable; in one sense, nobody's fault; the inevitable result of past training, the conflict of ideas, millions of people grappling each other's throats, every soldier in each camp certain that he is fighting for an idea that holds the salvation of the world

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— every drop of his blood in earnest. Such a war finds no parallel nearer than that of the Catholic and the Huguenot of France, or than that of Aristocrat and Republican in 1790, or of Cromwell and the Irish, when victory meant extermination. Such is our war. I look upon it as the commencement of the great struggle between the hidden aristocracy and the democracy of America. You are to say to-day whether it shall last ten years or seventy, as it usually has done. It resembles closely that struggle between aristocrat and democrat which began in France in 1790, and continues still. While it lasts, it will have the same effect on the nation as that war between blind loyalty, represented by the Stuart family, and the free spirit of the English Constitution, which lasted from 1660 to 1760, and made England a second-rate power almost all that century. Such is the era on which you are entering. I will not speak of war in itself — I have no time; I will not say with Napoleon that it is the practice of barbarians; I will not say that it is good. It is better than the past. A thing may be better, and yet not good. This war is better than the past, but there is not an element of good in it. I mean, there is nothing in it that we might not have gotten better, fuller, and more perfectly in other ways. And yet it is better than the craven past, infinitely better than a peace which had pride for its father and subserviency for its mother. Neither will I speak of the cost of war, although you know that we never shall get out of this one without a debt of at least two or three thousand million of dollars. For, if the prevalent theory prove correct, and the country comes together again on anything like the old basis, we pay Jeff Davis' debts as well as our own. Neither will I remind you that debt is the fatal disease of republics, the first thing and the mightiest to undermine government and corrupt the people. The great debt of England has kept her back in civil progress at least a hundred years. Neither will I remind you that when we go out of this war, we go out with an immense disbanded army, an intense military spirit embodied in two thirds of a million of soldiers, the fruitful, the inevitable source of fresh debts and new wars: I pass by all that; yet lying within those causes are things enough to make the most sanguine friends of free institutions tremble for our future. I pass those by. But let me remind you of another tendency of the time. You know, for instance, that the writ of habeas corpus, by which government is bound to render a reason to the judiciary

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before it lays its hands upon a citizen, has been called the highwater mark of English liberty. Jefferson, in his calm moments, dreaded the power to suspend it in any emergency whatever, and wished to have it in "eternal and unremitting force." The present Napoleon, in his treatise on the English Constitution, calls it the gem of English institutions. Lieber says that habeas corpus, free meetings like this, and a free press, are the three elements which distinguish liberty from despotism. All that Saxon blood has gained in the battles and toils of two hundred years are these three things. But to-day, Mr. Chairman, every one of them — habeas corpus, the right of free meeting, and a free press — is annihilated in every square mile of the Republic. We live to-day, every one of us, under martial law. The Secretary of State puts into his bastile, with a warrant as irresponsible as that of Louis, any man whom he pleases. And you know that neither press nor lips may venture to arraign the Government without being silenced. At this moment one thousand men, at least, are "bastiled" by an authority as despotic as that of Louis — three times as many as Eldon and George III. seized when they trembled for his throne. Mark me, I am not complaining. I do not say it is not necessary. It is necessary to do anything to save the ship. [Applause.] It is necessary to throw everything overboard in order that we may float. It is a mere question whether you prefer the despotism of Washington or that of Richmond. I prefer that of Washington. [Loud applause.] But, nevertheless, I point out to you this tendency because it is momentous in its significance. We are tending with rapid strides, you say inevitably — I do not deny it; necessarily — I do not question it; we are tending toward that strong government which frightened Jefferson; toward that unlimited debt, that endless army. We have already those alien and sedition laws which, in 1798, wrecked the Federal party, and summoned the Democratic into existence. For the first time on this continent, we have passports, which even Louis Napoleon pronounces useless and odious. For the first time in our history, government spies frequent our great cities. And this model of a strong government, if you reconstruct it on the old basis, is to be handed into the keeping of whom? If you compromise it by reconstruction, to whom are you to give these delicate and grave powers? To compromisers. Reconstruct this Government, and for twenty years you can never elect a Republican. Presidents must be so wholly without

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character or principle, that two angry parties, each hopeless of success, contemptuously tolerate them as neutrals. Now, I am not exaggerating the moment. I can parallel it entirely. It is the same position that England held in the times of Eldon and Fox, when Holcroft and Montgomery, the poet, Home Tooke and Frost and Hardy went into dungeons, under laws that Pitt executed and Burke praised — times when Fox said he despaired of English liberty but for the power of insurrection — times which Sydney Smith said he remembered, when no man was entitled to an opinion who had not £ 3,000 a year. Why! there is no right — do I exaggerate when I say that there is no single right — that government is scrupulous and finds itself able to protect, except the pretended right of a man to his slaves! Every other right has fallen now before the necessities of the hour. Understand me, I do not complain of this state of things; but it is momentous. I only ask you that out of this peril you be sure to get something worthy of the crisis through which you have passed. No government of free make could stand three such trials as this. I only paint you the picture, in order, like Hotspur, to say, "Out of this nettle, danger, be you right eminently sure that you pluck the flower, safety." [Applause.] Standing in such a crisis, certainly it commands us that we should endeavor to find the root of the difficulty, and that now, once for all, we should put it beyond the possibility of troubling our peace again. We can not afford, as Republicans, to run that risk. The vessel of state — her timbers are strained beyond almost the possibility of surviving. The tempest is one which it demands the wariest pilot to outlive. We can not afford, thus warned, to omit anything which can save this ship of state from a second danger of the kind. Well, what shall we do? The answer to that question comes partly from what we think has been the cause of this convulsion. Some men think — some of your editors think — many of ours, too — that this war is nothing but the disappointment of one or two thousand angered politicians, who have persuaded eight million of Southerners, against their convictions, to take up arms and rush to the battle-field — no great compliment to Southern sense. [Laughter.] They think that if the Federal army could only appear in the midst of this demented mass, the eight million will find out for the first time in their lives that they have got souls of their own, tell us so,

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and then we shall all be piloted back, float back, drift back into the good old times of Franklin Pierce and James Buchanan. [Laughter.] Well, there is a measure of truth in that. I believe that if a year ago, when the thing first showed itself, Jefferson Davis, and Toombs, and Keitt, and Wise, and the rest, had been hung for traitors at Washington, and a couple of frigates anchored at Charleston, another couple in Savannah, and half a dozen in New Orleans, with orders to shell those cities on the first note of resistance, there never would have been this outbreak — [applause] — or it would have been postponed at least a dozen years; and if that interval had been used to get rid of slavery, we never should have heard of the convulsion. But you know we had nothing of the kind, and the consequence is, what? Why, the bewildered North has been summoned by every defeat, and every success, from its workshops and its factories, to gaze with half-opened eyes at the lurid heavens, until at last, divided, bewildered, confounded, as this 20,000,000 were, we have all of us fused into one idea, that the Union meant Justice — shall mean Justice — owns down to the Gulf, and we will have it. [Applause.] Well, what has taken place meanwhile at the South? Why, the same thing. The divided, bewildered South has been summoned also out of her divisions by every success and every defeat (and she has had more of the first than we have), and the consequence is that she, too, is fused into a swelling sea of state pride, Northern hate — Unconquerable will, And study of revenge, immortal hate, And courage never to submit nor yield.

She is in earnest, every man, and she is as unanimous as the Colonies were in the Revolution. In fact, the South recognizes more intelligibly than we do the necessities of her position. I do not consider this a secession. It is no secession. I agree with BishopGeneral Polk — it is a conspiracy, not a secession. There is no wish, no intention to go peaceably and permanently off. It is a conspiracy to make the Government do the will and accept the policy of the slaveholders. Its root is at the South, but it has many a branch in Wall Street and in State Street. [Cheers.] It is a conspiracy, and on the one side is every man who still thinks that he that steals his brother is a gentleman, and he that makes his living is not. [Ap-

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plause.] It is the aristocratic element which survived the Constitution, which our fathers thought could be left under it, and the South to-day is forced into this war by the natural growth of the antagonistic principle. You may pledge whatever submission and patience of Southern institutions you please, it is not enough. South Carolina said to Massachusetts, in 1835, when Edward Everett was Governor, "Abolish free speech — it is a nuisance." She is right — from her stand-point it is. [Laughter.] That is, it is not possible to preserve the quiet of South Carolina consistently with free speech; but you know the story Sir Walter Scott told of the Scotch laird, who said to his old butler, "J o c ^, you and I can't live under this roof." "And where does your honor think of going?" So free speech says to South Carolina to-day. Now I say you may pledge, compromise, guarantee what you please. The South knows it is not your purpose — it is your character that she dreads. It is the nature of Northern institutions, the perilous freedom of discussion, the flavor of our ideas, the sight of our growth, the very neighborhood of such States, that constitutes the danger. It is like the two vases launched on the stormy sea. The iron said to the crockery, "I won't come near you." "Thank you," said the weaker vessel; "there is as much danger in my coming near you." This the South feels; hence her determination; hence, indeed, the imperious necessity that she should rule and shape our Government, or of sailing out of it. I do not mean that she plans to take possession of the North, and choose our Northern mayors, though she has done that in Boston for the last dozen years, and here till this fall. But she conspires and aims to control just so much of our policy, trade, offices, presses, pulpits, cities, as is sufficient to insure the undisturbed existence of slavery. She conspires with the full intent so to mold this Government as to keep it what it has been for thirty years, according to John Quincy Adams — a plot for the extension and perpetuation of slavery. As the world advances, fresh guarantees are demanded. The nineteenth century requires sterner gags than the eighteenth. Often as the peace of Virginia is in danger, you must be willing that a Virginia Mason shall drag your citizens to Washington, and imprison them at his pleasure. So long as Carolina needs it, you must submit that your ships be searched for dangerous passengers, and every Northern man lynched. No more Kansas rebellions. It is a conflict between the two powers, Aristocracy and Democracy, which shall hold this

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belt of the continent. You may live here, New York men, but it must be in submission to such rules as the quiet of Carolina requires. That is the meaning of the oft-repeated threat to call the roll of one's slaves on Bunker Hill, and dictate peace in Faneuil Hall. Now, in that fight, I go for the North — for the Union. In order to make out this theory of "irrepressible conflict," it is not necessary to suppose that every Southerner hates every Northerner (as the Atlantic urges). But this much is true, some 300,000 slaveholders at the South, holding two thousand million of so-called property in their hands, controlling the blacks, and befooling the seven million of poor whites into being their tools, into believing their interest is opposed to ours — this order of nobles, this privileged class, has been able for forty years to keep the Government in dread, dictate terms by threatening disunion, bring us to its verge at least twice, and now almost to break the Union in pieces. A power thus consolidated, which has existed seventy years, setting up and pulling down parties, controlling the policy of the Government, and changing our religion, and is emboldened by uniform success, will not burst like a bubble in an hour. For all practical purposes, it is safe to speak of it as the South; no other South exists, or will exist, till our policy develops it into being. This is what I mean. An aristocracy rooted in wealth, with its network spread over all social life, its poison penetrating every fiber of society, is the hardest possible evil to destroy. Its one influence, FASHION, is often able to mock at Religion, Trade, Literature, and Politics combined. One half the reason why Washington has been and is in peril — why every move is revealed and checkmated — is that your President is unfashionable, and Mrs. Jefferson Davis is not. Unseen chains are sometimes stronger than those of iron and heavier than those of gold. It is not in the plots, it is in the inevitable character of the Northern States that the South sees her danger. And the struggle is between these two ideas. Our fathers, as I said, thought they could be left, one to outgrow the other. They took gunpowder and a lighted match, forced them into a stalwart cannon, screwed down the muzzle, and thought they could secure peace. But it has resulted differently, their cannon has exploded, and we stand among fragments. Now some Republicans and some Democrats — not Butler, and

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Bryant, and Cochrane, and Cameron, not Boutwell, and Bancroft, and Dickinson, and others — but the old set — the old set say to the Republicans, " L a y the pieces carefully together in their places; put the gunpowder and the match in again, say the Constitution backward instead of your prayers, and there will never be another rebellion!" N o w I doubt it. It seems to me that like causes will produce like effects. If the reason of the war is because w e are two nations, then the cure must be to make us one nation, to remove that cause which divides us, to make our institutions homogeneous. If it were possible to subjugate the South and leave slavery where it is, where is the security that w e should not have another war in ten years? Indeed, such a course invites another war, whenever demagogues please. I believe the policy of reconstruction is impossible. And if it were possible, it would be the greatest mistake that Northern men could commit. [Cheers.] I will not stop to remind you that, standing as w e do to-day, with the full constitutional right to abolish slavery — a right Southern treason has just given us — a right, the use of which is enjoined by the sternest necessity — if, after that, the North goes back to the Constitution of '89, she assumes, a second time, afresh, unnecessarily, a criminal responsibility for slavery. Hereafter no old excuse will avail us. A second time, with open eyes, against our highest interest, w e clasp bloody hands with tyrants to uphold an acknowledged sin, whose fell evil w e have fully proved. But that aside, peace with an unchanged Constitution would leave us to stand like Mexico. States married, not matched; chained together, not melted into one; foreign nations aware of our hostility, and interfering to embroil, rob, and control us. W e should be what Greece was under the intrigues of Philip, and Germany when Louis X I V . was in fact her dictator. W e may see our likeness in Austria, every fretful province an addition of weakness; in Italy, twenty years ago, a leash of angry hounds. A Union with unwilling and subjugated States, smarting with defeat, and yet holding the powerful and dangerous element of slavery in it, and an army disbanded into laborers, food for constant disturbance, would be a standing invitation to France and England to insult and dictate, to thwart our policy, demand changes in our laws, and trample on us continually. Reconstruction is but another name for the submission of the North. It is her subjection under a mask. It is nothing but the con-

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fession of defeat. Every merchant, in such a case, puts everything he has at the bidding of Wigfall and Toombs in every cross-road bar-room at the South. For, you see, never till now did anybody but a few Abolitionists believe that this nation could be marshaled one section against the other in arms. But the secret is out. The weak point is discovered. Why does the London press lecture us like a schoolmaster his seven-years-old boy? Why does England use a tone such as she has not used for half a century to any power? Because she knows us as she knows Mexico, as all Europe knows Austria — that we have the cancer concealed in our very vitals. Slavery, left where it is, after having created such a war as this, would leave our commerce and all our foreign relations at the mercy of any Keitt, Wigfall, Wise, or Toombs. Any demagogue has only to stir up a pro-slavery crusade, point back to the safe experiment of 1861, and lash the passions of the aristocrats to cover the sea with privateers, but in jeopardy the trade of twenty States, plunge the country into millions of debt, send our stocks down fifty per cent., and cost thousands of lives. Reconstruction is but making chronic what now is transient. What that is, this week shows. What that is, we learn from the tone England dares to assume toward this divided republic. I do not believe reconstruction possible. I do not believe the Cabinet intend it. True, I should care little if they did, since I believe the administration can no more resist the progress of events than a spear of grass can retard the step of an avalanche. But if they do, allow me to say, for one, that every dollar spent in this war is worse than wasted, every life lost is a public murder, and that any statesman who leads these States back to reconstruction will be damned to an infamy compared with which Arnold was a saint, and James Buchanan a public benefactor. [Slight disturbance in the rear part of the hall, cries of "Put him out!" etc.] I said reconstruction is not possible. I do not believe it is, for this reason: the moment these States begin to appear victorious, the moment our armies do anything that evinces final success, the wily statesmanship and unconquerable hate of the South will write "Emancipation" on her banner, and welcome the protectorate of a European power. And if you read the European papers of to-day, you need not doubt that they will have it. Intelligent men agree that the North stands better with Palmerston for minister than she would with any minister likely to succeed him. And who is Palmer-

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ston? While he was Foreign Secretary, from 1848 to '51, the British press ridiculed every effort of the French Republicans — sneered at Cavaignac and Ledru Rollin, Lamartine and Hugo — while they cheered Napoleon on to his usurpation; and Lord Normanby, then minister at Paris, early in December, while Napoleon's hand was still wet with the best blood of France, congratulated the despot on his victory over the Reds, applying to the friends of Liberty the worst epithet that an Englishman knows. This last outrage lost Palmer ston his place; but he rules to-day — though rebuked, not changed. The value of the English news this week is the indication of the nation's mind. No one doubts now, that should the South emancipate, England would make haste to recognize and help her. In ordinary times the Government and aristocracy of England dread American example. They may well admire and envy the strength of our Government, when, instead of England's impressment and pinched levies, patriotism marshals six hundred thousand volunteers in six months. The English merchant is jealous of our growth; only the liberal middle classes really sympathize with us. When the two other classes are divided, this middle class rules. But now, Herod and Pilate are agreed. The aristocrat, who usually despises a trader, whether of Manchester or Liverpool, as the South does a negro, now is secessionist from sympathy, as the trader is from interest. Such a union no middle class can checkmate. The only danger of war with England is, that as soon as England declared war with us, she would recognize the Southern Confederacy immediately, just as she stands, slavery and all, as a military measure. As such, in the heat of passion, in the smoke of war, the English people, all of them, would allow such a recognition even of a slaveholding empire. War with England insures disunion. When England declares war, she gives slavery a fresh lease of fifty years. Even if we have no war with England, let another eight or ten months be as little successful as the last, and Europe will acknowledge the Southern Confederacy, slavery and all, as a matter of course. Further, any approach toward victory on our part, without freeing the slave, gives him free to Davis. So far, the South is sure to succeed, either by victory or defeat, unless we anticipate her. Indeed, the only way, the only sure way, to break this Union, is to try to save it by protecting slavery. "Every moment lost," as Napoleon said, "is an opportunity

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for misfortune." Unless we emancipate the slave, we shall never conquer the South without her trying emancipation. Every Southerner, from Toombs up to Fremont, has acknowledged it. Do you suppose that Davis and Beauregard, and the rest, mean to be exiles, wandering contemned in every great city of Europe, in order that they may maintain slavery and the Constitution of '89? They, like ourselves, will throw everything overboard before they will submit to defeat — defeat from Yankees. I do not believe, therefore, that reconciliation is possible, nor do I believe the Cabinet have any such hopes. Indeed, I do not know where you will find the evidence of any purpose in the administration at Washington. [Hisses, cheers, and laughter.] If we look to the West, if we look to the Potomac, what is the policy? If, on the Potomac, with the aid of twenty governors, you assemble an army, and do nothing but return fugitive slaves, that proves you competent and efficient. If, on the banks of the Mississippi, unaided, the magic of your presence summons an army into existence, and you drive your enemy before you a hundred miles farther than your second in command thought it possible for you to advance, that proves you incompetent, and entitles your second in command to succeed you. [Tremendous applause, and three cheers for Fremont!] Looking in another direction, you see the Government announcing a policy in South Carolina. What is it? Well, Mr. Secretary Cameron says to the General in command there, "You are to welcome into your camp all comers; you are to organize them into squads and companies; use them any way you please — but there is to be no general arming." That is a very significant exception. You recollect in Charles Reade's novel, "Never too Late to Mend" ( a very good motto ), the heroine flies away to hide from the hero, announcing that she never shall see him again. Her letter says, "I will never see you again, Edward. You, of course, won't come to see me at Mrs. Young's, at No. 126 Bond Street — [laughter] — between eleven in the morning and four in the afternoon, because I shan't see you." [Laughter.] So Mr. Cameron says there is to be no general arming, but I suppose there is to be a very particular arming. [Laughter.] But he goes on to add: "This is no greater interference with the institutions of South Carolina than is necessary — than the war will cure." Does he mean he will give the slaves back when the war is over? I don't know. All I know is, that the Port Royal

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expedition proved one thing — it laid forever that ghost of an argument, that the blacks loved their masters — it settled forever the question whether the blacks were with us or with the South. My opinion is, that the blacks are the key of our position. [A VOICE — "That is it."] He that gets them wins, and he that loses them goes to the wall. [Applause.] Port Royal settled one thing — the blacks are with us, and not with the South. At present they are the only Unionists. I know nothing more touching in history, nothing that art will immortalize and poetry dwell upon more fondly — I know no tribute to the stars and stripes more impressive than that incident of the blacks coming to the water side with their little bundles, in that simple faith which had endured through the long night of so many bitter years. They preferred to be shot rather than be driven from the sight of that banner they had so long prayed to see. And if that was the result when nothing but Gen. Sherman's equivocal proclamation was landed on the Carolinas, what should we have seen, if there had been 18,000 veterans with Fremont, the statesman soldier of this war, at their head — [loud applause] — and over them the stars and stripes, gorgeous with the motto, "Freedom for all! freedom forever?" If that had gone before them, in my opinion they would have marched across the Carolinas, and joined Brownlow in East Tennessee. [Applause.] The bulwark on each side of them would have been 100,000 grateful blacks; they would have cut this rebellion in halves, and while our fleets fired salutes across New Orleans, Beauregard would have been ground to powder between the upper millstone of McClellan, and the lower of a quarter million of blacks rising to greet the stars and stripes. [Great cheering.] McClellan may drill a better army — more perfect soldiers. He will never marshal a stronger force than those grateful thousands. That is the way to save insurrection. He is an enemy to civil liberty, the worst enemy to his own land, who asks for such delay or perversion of Government policy as is sure to result in insurrection. Our duty is to save these four millions of blacks from their own passions, from their own confusion, and eight million of whites from the consequences of it — ["Hear, hear!"] — and in order to do it, we nineteen million of educated, Christian Americans are not to wait for the will or the wisdom of a single man — we are not to wait for Fremont or McClellan — the Government is our dictator. It might do for Rome, a herd of beggars and soldiers, kept quiet

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only by the weight of despotism — it might do for Rome, in moments of danger, to hurl all responsibility into the hands of a dictator. But for us, educated, thoughtful men, with institutions modeled and matured by the experience of two hundred years — it is not for us to evade responsibility by deferring to a single man. I demand of the Government a policy. I demand of the Government to show the doubting infidels of Europe that Democracy is not only strong enough for the trial, but that she breeds men with brains large enough to comprehend the hour, and wills hot enough to fuse the purpose of nineteen million of people into one decisive blow for safety and for Union. [Cheers.] You will ask me how it is to be done. I would have it done by Congress. We have the power. When Congress declares war, says John Quincy Adams, Congress has all the powers incident to carrying on war.2 It is not an unconstitutional power — it is a power conferred by the Constitution — but the moment it comes into play it rises beyond the limit of constitutional checks. I know it is a grave power, this trusting the Government with despotism. But what is the use of government, except just to help us in critical times? All the checks and ingenuity of our institutions are arranged to secure for us men wise and able 2

"Sir, in the authority given to Congress by the Constitution of the United States to declare war, all the powers incidental to war are, by necessary implication, conferred upon the government of the United States. . . . There are two classes of powers vested by the Constitution of the United States in their Congress and Executive government: the powers to be executed in time of peace, and the powers incident to war. That the powers of peace are limited by provisions within the body of the Constitution itself; but that the powers of war are limited and regulated only by the laws and usages of nations, and are subject to no other limitation. . . . I do not admit that there is, even among the peace powers of Congress, no such authority; but in war, there are many ways by which Congress not only have the authority, but are bound to interfere with the institution of slavery in the States. . . . When the Southern States are the battlefield between Slavery and Emancipation, Congress may sustain the institution by war, or perhaps abolish it by treaties of peace; and they will not only possess the constitutional power so to interfere, but they will be bound in duty to do it, by the express provisions of the Constitution itself. From the instant the slaveholding States become the theater of a war, civil, servile, or foreign, from that instant the war powers of Congress extend to interference with the institution of slavery in every way by which it can be interfered with. . . . With a call to keep down slaves, in an insurrection and a civil war, comes a full and plenary power to this House and to the Senate over the whole subject. It is a war power. Whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on, according to the laws of war; and by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. This power in Congress has, perhaps, never been called into exercise under the present Constitution of the United States." — Speeches of John Quincy Adams in the U.S. House of Representatives, 1836-1842.

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enough to be trusted with grave powers — bold enough to use them when the times require. Lancets and knives are dangerous instruments. The use of surgeons is, that when lancets are needed somebody may know how to use them, and save life. One great merit of democratic institutions is, that resting, as they must, on educated masses, the Government may safely be trusted, in a great emergency, with despotic power, without fear of harm, or of wrecking the state. No other form of government can venture such confidence without risk of national ruin. Doubtless the war power is a very grave power; so are some ordinary peace powers. I will not cite extreme cases, Louisiana and Texas. We obtained the first by Treaty, the second by Joint Resolutions; each case an exercise of power as grave and despotic as the abolition of slavery would be, and, unlike that, plainly unconstitutional; one which nothing but stern necessity and subsequent acquiescence by the nation could make valid. Let me remind you that seventy years' practice has incorporated it as a principle in our constitutional law, that what the necessity of the hour demands and continued assent of the people ratifies is law. Slavery has established that rule. We might surely use it in the cause of justice. But I will cite an unquestionable precedent. It was a grave power, in 1807, in time of peace, when Congress abolished commerce; when, by the embargo of Jefferson, no ship could quit New York or Boston, and Congress set no limit to the prohibition. It annihilated commerce. New England asked, "Is it constitutional?" The Supreme Court said, "Yes." New England sat down and obeyed. Her wharves were worthless, her ships rotted, her merchants beggared. She asked no compensation. The powers of Congress carried bankruptcy from New Haven to Portland; but the Supreme Court said, "It is legal," and New England bowed her head. We commend the same cup to the Carolinas to-day. We say to them that, in order to save the Government, there resides somewhere despotism. It is in the war powers of Congress. That despotism can change the social arrangements of the Southern States, and has a right to do it. Every man of you who speaks of the emancipation of the negroes, allows it would be decisive if it were used. You allow that, when it is a military necessity, we may use it. What I claim is, in honor of our institutions, that we are not put to wait for the wisdom or the courage of a General, Our fathers left us with no such miserable plan of government. They gave us a government with the power,

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in such times as these of doing something that would save the helm of state in the hands of its citizens. [Cheers.] We could cede the Carolinas; I have sometimes wished we could shovel them into the Atlantic. [Applause and laughter.] We can cede a State. We can do anything for the time being; and no theory of government can deny its power to make the most unlimited change. The only alternative is this : Do you prefer the despotism of your own citizens or of foreigners? That is the only question in war. [Cheers.] Now, this Government, which abolishes my right of habeas corpus— which strikes down, because it is necessary, every Saxon bulwark of liberty — which proclaims martial law, and holds every dollar and every man at the will of the Cabinet — do you turn round and tell me that this same Government has no power to stretch its hands across the Potomac, and root up the evil which, for seventy years, has troubled its peace, and now culminates in rebellion? I maintain, therefore, the power of the Government itself to inaugurate a policy; and I say, in order to save the Union, do justice to the black. [Applause.] I would claim of Congress — in the exact language of Adams, of the "Government" — a solemn act abolishing slavery throughout the Union, securing compensation to loyal slaveholders. As the Constitution forbids the States to make and allow nobles, I would now, by equal authority, forbid them to make slaves or allow slaveholders. This has been the usual course at such times. Nations, convulsed and broken by two powerful elements or institutions, have used the first moment of assured power — the first moment that they clearly saw and fully appreciated the evil — to cut up the dangerous tree by the roots. So France expelled the Jesuits, and the Middle Ages the Templars. So England, in her great rebellion, abolished Nobility and the Established Church; and the French Revolution did the same, and finally gave to each child an equal share in his deceased father's lands. For the same purpose, England, in 1745, abolished clanship in Scotland, the root of the Stuart faction; and we, in '76, nobles and all tenure of estates savoring of privileged classes. Such a measure supplies the South just what she needs — capital. That sum which the North gives the loyal slaveholder, not as acknowledging his property in the slave, but a measure of conciliation— perhaps an acknowledgment of its share of the guilt — will

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call mills, ships, agriculture into being. The free negro will redeem to use lands never touched, whose fertility laughs Illinois to scorn, and finds no rival but Egypt. And remember, besides, as Montesquieu says, "The yield of land depends less on its fertility than on the freedom of its inhabitants." Such a measure binds the negro to us by the indissoluble tie of gratitude — the loyal slaveholder by strong self-interest — our bonds are all his property — the other whites, by prosperity, they are lifted in the scale of civilization and activity, educated and enriched. Our institutions are then homogeneous. We grapple the Union together with hooks of steel — make it as lasting as the granite that underlies the continent. People may say this is a strange language for me — a Disunionist. Well, I was a Disunionist, sincerely, for twenty years. I did hate the Union, when Union meant lies in the pulpit and mobs in the street, when Union meant making white men hypocrites and black men slaves. [Cheers.] I did prefer purity to peace — I acknowledge it. The child of six generations of Puritans, knowing well the value of union, I did prefer disunion to being the accomplice of tyrants. But now, when I see what the Union must mean in order to last — when I see that you can not have union without meaning justice — and when I see twenty millions of people, with a current as swift and as inevitable as Niagara, determined that this Union shall mean justice, why should I object to it? I endeavored honestly, and am not ashamed of it, to take nineteen States out of this Union, and consecrate them to liberty, and twenty millions of people answer me back, "We like your motto, only we mean to keep thirtyfour States under it." Do you suppose I am not Yankee enough to buy union when I can have it at a fair price? I know the value of union; and the reason why I claim that Carolina has no right to secede is this: we are not a partnership, we are a marriage, and we have done a great many things since we were married in 1789 which render it unjust for a State to exercise the right of revolution on any ground now alleged. I admit the right. I acknowledge the great principles of the Declaration of Independence, that a State exists for the liberty and happiness of the people, that these are the ends of government, and that when government ceases to promote those ends, the people have a right to remodel their institutions. I acknowledge the right of revolution in South Carolina, but at the same time I acknowledge that right of revolution only when Gov-

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ernment has ceased to promote those ends. Now we have been married for seventy years. We have bought Florida. We rounded the Union to the Gulf. We bought the Mississippi for commercial purposes. We bought Texas for slave purposes. Great commercial interests, great interests of peace have been subserved by rounding the Union into a perfect shape; and the money and sacrifices of two generations have been given for this purpose. To break up that Union now is to defraud us of mutual advantages relating to peace, trade, national security, which can not survive disunion. The right of revolution is not matter of caprice. "Governments long established," says our Declaration of Independence, "are not to be changed for light and transient causes." When so many important interests and benefits, in their nature indivisible and which disunion destroys, have been secured by common toils and cost, the South must vindicate her revolution by showing that our Government has become destructive of its proper ends, else the right of revolution does not exist. Why did we buy Texas? Why have we allowed the South to strengthen herself? Because she said that slavery within the girdle of the Constitution would die out through the influence of natural principles. She said: "We acknowledge it to be an evil; but at the same time it will end by the spread of free principles and the influence of free institutions." And the North said: "Yes; we will give you privileges on that account, and we will return your slaves for you." Every slave sent back from a Northern State is a fresh oath of the South that she would not secede. Our fathers trusted to the promise that this race should be left under the influence of the Union, until, in the maturity of time, the day should arrive when they would be lifted into the sunlight of God's equality. I claim it of South Carolina. By virtue of that pledge she took Boston, and put a rope round her neck in that infamous compromise which consigned to slavery Anthony Burns. I demand the fulfillment on her part even of that infamous pledge. Until South Carolina allows me all the influence that nineteen millions of Yankee lips, asking infinite questions, have upon the welfare of those four million of bondsmen, I deny her right to secede. [Applause.] Seventy years has the Union postponed the negro. For seventy years has he been beguiled with the promise, as she erected one bulwark after another around slavery, that he should have the influence of our common institutions. I claim it to-day. Never, with my consent, while the

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North thinks that the Union can or shall mean justice, shall those 400,000 South Carolina slaves go beyond the influence of Boston ideas. That is my strong reason for clinging to the Union. This is also one main reason why, unless upon most imperative and manifest grounds of need and right, South Carolina has no right of revolution; none till she fulfills her promise in this respect. I know how we stand to-day, with the frowning cannon of the English fleet ready to be thrust out of the port-holes against us. But I can answer England with a better answer than William H. Seward can write. I can answer her with a more statesmanlike paper than Simon Cameron can indite. I would answer her with the stars and stripes floating over Charleston and New Orleans, and the itinerant Cabinet of Richmond packing up archives and wearing apparel to ride back to Montgomery. There is one thing, and only one, that John Bull respects, and that is success. It is not for us to give counsel to the Government on points of diplomatic propriety; but I suppose we may express our opinion, and my opinion is, that if I were the President of these thirty-four States, while I was, I should want Mason and Slidell to stay with me. I say, then, first, as a matter of justice to the slave, we owe it to him; the day of his deliverance has come. The long promise of seventy years is to be fulfilled. The South draws back from the pledge. The North is bound, in honor of the memory of her fathers, to demand its exact fulfillment, and in order to save this Union, which now means justice and peace, to recognize the rights of 4,000,000 of its victims. This is the dictate of Justice. Justice, which at this hour is craftier than Seward, more statesmanlike than Cameron; Justice, which appeals from the cabinets of Europe to the people; Justice, which abases the proud and lifts up the humble; Justice, which disarms England, saves the slaves from insurrection, and sends home the Confederate army of the Potomac to guard its own hearths; Justice, which gives us four million of friends, spies, soldiers in the enemy's country, planted each one at their very hearth-sides; Justice, which inscribes every cannon with "Holiness to the Lord!" and puts a Northern heart behind every musket; Justice, which means victory now and peace forever. To all cry of demagogues asking for boldness, I respond with the cry of "Justice, immediate, absolute Justice!" And if I dared to descend to a lower level, I should say to the merchants of this metropolis, De-

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mand of the Government a speedy settlement of this question. Every hour of delay is big with risk. Remember, as Governor Boutwell suggests, that our present financial prosperity comes because w e have corn to export in place of cotton; and that another year, should Europe have a good harvest and we an ordinary one, while an inflated currency tempts extravagance and large imports, general bankruptcy stares us in the face. Do you love the Union? Do you really think that on the other side of the Potomac are the natural brothers and customers of the manufacturing ingenuity of the North? I tell you, certain as fate, God has written the safety of that relation in the same scroll with justice to the negro. The hour strikes. You may win him to your side; you may anticipate the South; you may save twelve million of customers. Delay it, let God grant McClellan victory, let God grant the stars and stripes over N e w Orleans, and it is too late. Jeff Davis will then summon that same element to his side, and twelve million of customers are added to Lancashire and Lyons. Then commences a war of tariffs, embittered by that other war of angered nationalities, which are to hand this and the other Confederacy down for twenty-five or thirty years, divided, weakened, and bloody with intestine struggle. And what will be our character? I do not wholly agree with E d w a r d Everett, in that very able and eloquent address which he delivered in Boston, in which, however, he said one thing pre-eminently true — he, the compromiser — that if, in 1 8 3 0 - 3 1 , nullification, under Jackson, had been hung instead of compromised, w e never should have had Jeff Davis. [Loud applause.] I agree with him, and hope w e shall make no second mistake of the kind. But I do not agree with him in the conclusion that these nineteen States, left alone, would be of necessity a second-rate power. No. I believe in brains; and I know these Northern men have more brains in their right hands than others have in their heads. [Laughter and cheers.] I know that w e mix our soil with brains, and that, consequently, w e are bound to conquer. W h y , the waves of the ocean might as well rebel against our granite coast, or the wild bulls of the prairies against man, as either England or the South undertake to stop the march of the nineteen free States of this continent. [Applause.] It is not power that w e should lose, but it is character. H o w should w e stand when Jeff Davis had turned that corner upon us —

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abolished slavery, won European sympathy, and established his confederacy? Bankrupt in character — outwitted in statesmanship. Our record would be, as we entered the sisterhood of nations, "Longed, and struggled, and begged to be admitted into the partnership of tyrants, and they were kicked out!" And the South would spring into the same arena, written on her brow, "She flung away what she thought gainful and honest, in order to gain her independence!" A record better than the gold of California or all the brains of the Yankee. Righteousness is preservation. You who are not Abolitionists do not come to this question as I did — from an interest in these four million of black men. I came on this platform from sympathy with the negro. I acknowledge it. You come to this question from an idolatrous regard for the Constitution of '89. But here we stand. On the other side of the ocean is England, holding out, not I think a threat of war — I do not fear it — but holding out to the South the intimation of her willingness, if she will but change her garments, and make herself decent — [laughter] — to accept her under her care, and give her assistance and protection. There stands England, the most selfish and treacherous of modern governments. [Loud and long-continued cheers.] On the other side of the Potomac stands a statesmanship, urged by personal and selfish interests, that can not be matched, and between them they have but one object — it is in the end to divide the Union. Hitherto the negro has been a hated question. The Union moved majestic on its path, and shut him out, eclipsing him from the sun of equality and happiness. He has changed his position to-day. He now stands between us and the sun of our safety and prosperity, and you and I are together on the same platform — the same plank — our object to save the institutions which our fathers planted. Save them in the service of justice, in the service of peace, in the service of liberty; and, in that service, demand of the Government at Washington that they shall mature and announce a purpose. That flag lowered at Sumter, that flight at Bull Run, will rankle in the heart of the Republic for centuries. Nothing will ever medicine that wound but the Government announcing to the world that it knows well whence came its trouble, and is determined to effect its cure, and, consecrating the banner to liberty, to plant it on the shores of the Gulf. [Applause.] I say in the service of the negro; but I

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do not forget the white man, the eight million of poor whites, thinking themselves our enemies, but who are really our friends. Their interests are identical with our own. An Alabama slaveholder, sitting with me a year or two ago, said: In our northern counties they are your friends. A man owns one slave or two slaves, and he eats with him, and sleeps in the same room (they have but one), as much as a hired man here eats with the farmer he serves. There is no difference. They are too poor to send their sons North for education. They have no newspapers, and they know nothing but what they are told by us. If you could get at them, they would be on your side, but we mean you never shall.

In Paris there are one hundred thousand men whom caricature or epigram can at any time raise to barricade the streets. Whose fault is it that such men exist? The Government's; and the Government under which such a mass of ignorance exists deserves to be barricaded. And the Government under which eight million of people exist, so ignorant that two thousand politicians and a hundred thousand aristocrats can pervert them into rebellion, deserves to be rebelled against. In the service of those men I mean, for one, to try to fulfill the pledge my fathers made when they said, "We will guarantee to every State a republican form of government." [Applause.] A privileged class, grown strong by the help and forbearance of the North, plots the establishment of aristocratic government in form as well as essence — conspires to rob the non-slaveholders of their civil rights. This is just the danger our national pledge was meant to meet. Our fathers' honor, national good faith, the cause of free institutions, the peace of the continent, bid us fulfill this pledge — insist in using the right it gives us to preserve the Union. I mean to fulfill the pledge that free institutions shall be preserved in the several States, and I demand it of the Government. I would have them, therefore, announce to the world what they have never yet done. I do not wonder at the want of sympathy on the part of England with us. The South says, "I am fighting for slavery." The North says, "I am not fighting against it." Why should England interfere? The people have nothing on which to hang their sympathy. I would have Government announce to the world that we understand the evil which has troubled our peace for seventy years, thwarting the natural tendency of our institutions, sending ruin

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along our wharves and through our workshops every ten years, poisoning the national conscience. We know well its character. But Democracy, unlike other governments, is strong enough to let evils work out their own death — strong enough to face them when they reveal their proportions. It was in this sublime consciousness of strength, not of weakness, that our fathers submitted to the wellknown evil of slavery, and tolerated it until the viper we thought we could safely tread on, at the touch of disappointment, starts up a fiend whose stature reaches the sky. But our cheeks do not blanch. Democracy accepts the struggle. After this forbearance of three generations, confident that she has yet power to execute her will, she sends her proclamation down to the Gulf — Freedom to every man beneath the Stars, and death to every institution that disturbs our peace or threatens the future of our Republic. [Great applause followed the conclusion of the lecture.]

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[Mary Abigail Dodge] Tracts for the Times. Courage! N e w York, 1 8 6 2

[Already in the first winter of the war, civilians were becoming discouraged. It was to these downhearted people, presumably of the sort she saw around her in a New England village, that Mary Abigail Dodge, writing under her pen name Gail Hamilton, addressed herself in the firm tones of a devout Congregationalist. She had long contributed to antislavery journals, and regarded the war as an opportunity to sacrifice for a glorious cause. Despite the tone of her pamphlet, Miss Dodge (18331896 ) was relatively untouched by the war, giving most of her attention to day-by-day life in Hamilton, Massachusetts, near Boston. During these years she saw much of John Greenleaf Whittier but refused to meet the senior Henry James, with whom she carried on a lengthy metaphysical correspondence for a period of a year. She contributed to the Independent, the Atlantic Monthly, and other magazines; her essays were gathered into a number of volumes. In postwar years, although she was herself a selfreliant woman, she opposed woman suffrage. Beginning in the 1870's she spent her winters in Washington in the household of her cousin, the wife of James G. Blaine; she helped Blaine write Twenty Years in Congress, and after his death eulogized him in a biography.1] W H A T do we civilians mean by talking about being discouraged? If the army were so, we might, perhaps, not be surprised. Homeloving men, long away from home, and repeatedly disappointed in every prospect of a speedy return; peace-loving men, seeing before them no termination of the war; quiet and comfort-loving men, exposed to repeated and severe hardships; intellectual and intelligent men, cut off from the pursuits of literature and life; — who would have any right to wonder or reproach, if they should, in the bitterness of heart engendered of repeated repulses, delays and 1

[H. Augusta Dodge, ed., Gail Hamilton's Life in Letters (Boston, 1901); Margaret Wyman Langworthy, "Mary Abigail Dodge," sketch to be published in Notable American Women, 1607-1950 (Cambridge, 19??).]

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disappointments, be occasionally and momentarily almost willing to give up everything for the sake of peace and home once more? But when we, able-bodied men and women, who have not, as yet, made a single sacrifice of personal comfort for the war; who have never, for one single moment, gone cold, or hungry, or thirsty for country's sake; when we sit comfortable over our registers, and by our "McGees," in our rocking chairs, with newspapers and new books, and a turkey for Christmas in the kitchen, and talk about being disheartened, I think we play the fool. Let us tear up our carpets to make blankets for the soldiers, as rebels have done; let us turn our houses and churches into hospitals; let us confine ourselves to two meals a day, and one course at a meal, and no butter to our bread; let us wear old shoes clouted upon our feet, and old garments, and only linsey woolsey for new; let us shiver a little, and famish a little, and be a little shabby, before we begin to give the rein to our despondency. Let us be quite sure that we have done something for national honor before we talk about being discouraged from doing anything more. And without waiting to make sacrifices, I do wish people would stop talking dolefully, and never begin again. Lacon says it is easier to bear our misfortunes than the comments of our friends upon them. Electricity never hurts anything so long as a cloud sails on quietly alone; but the moment it bumps against another cloud, out leaps the lightning and does mischief. If, when people feel low spirits coming on, they would take a walk, or go down cellar and stay, or put themselves out of sight somewhere, and keep out of sight till the fit is over, I think they would do great good to their country. I have not the slightest respect for the patriotism that shows itself by a dejected countenance. Of course, temperament has much to do in this thing. One person will be deeply depressed where another will be calm and cheerful. But call it temperament. Don't call it patriotism, or superior sensibility. And if you have a hard fight to be cheerful, rejoice that you can have the battle by your own hearth-stone, and show there that you do not shrink from conflict. Discouragement will melt away if it is not pampered; but if you go with a melancholy face to somebody, his face will answer to yours, you will put your two burdens together, and roll up such a load as is dismal to think of. I believe the late affair at Fredericksburg derived half its gloom-diffusing power from the people's telling

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each other how dreadful it was. Never say things look very dark, unless you have good reason to suppose your saying so will lighten them a shade or two. I can understand that very ignorant Atheists should be hopeless regarding this war. But people who have a knowledge of this world's history on the one side, or of God on the other, are without excuse. True, leaders may be incompetent, generals may blunder, avarice, jealousy, greed, and all manner of selfishness, may seem to push our cause on to certain shipwreck; but do you suppose that the Lord God Almighty is going to be stopped in his course by the nonarrival of a pontoon bridge? I am astonished at the amount of practical infidelity developed among Christians. From the manner in which many talk and look, it would seem as if God was not in all their thoughts. Nobody expects time-servers to look higher than Tammany for machinery and results; but the people who profess to worship God, the Father, Almighty, Maker of heaven and earth, might be expected to possess their souls in patience. It seems to us that the God whom many of us worship is after our own image and likeness — a God sufficient in peace, while everything goes smoothly, but rather taken aback by a sudden outburst of war — a God adequate to the government of the world in ordinary times, but quite out of his reckoning in these tumultuous days. We can trust him to give us day by day our daily bread, but we have not the least confidence in his ability to cope with Stonewall Jackson and Gen. Lee. I know that God works by means, and if Gen. Burnside should say, "God will take care of his cause," and should, therefore not post pickets, or watch the enemy, he would deny the faith, and be worse than an Infidel; or if we should say it, and therefore cease to pray and to work, in every possible way for the cause, we should be the same; but I, and most of those who read this paper, have no more influence over the management of troops at Vicksburg, the disposition of forces in Virginia, the furnishing of plans or material anywhere, than Daniel had over the lions. We have the same call for trust in God that he had. Things undoubtedly looked very dark when the Israelites stood fronting the sea, with the Egyptian Cavalry hard after them; but the sea returned and covered both chariots and horsemen. Things must have looked dark to the Jews when the Assyrian host sat down before their city, but in the morning they were all dead corpses. Those were Bible times, miracle

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times; but is the Lord's arm shortened that He cannot save, or his ear heavy that he cannot hear? True, we cannot be sure that He is on our side, but we can at least be sure that we are on His. We talk of our country, and it is ours — just as Paul's house was his. The earth is the Lord's, and the fullness thereof. This country belongs to God. It was His when a forgotten people held it — His when it passed into the hands of the Indians — His when our fathers dwelt here, and His to-day. If the Lord can afford to let it go, I rather think we can. If his cause can be better served by giving it over a while to dead men's bones and all uncleanness, it shall be given. Possibly, God sees that the only way by which we will be led to the truth is a reductio ad absurdum. He will let us have another pull at slavery, selfishness and wicked prosperity, or perhaps let us try anarchy, and division, and humiliation a while, till we shall be ready to return to Him. I hope not. We ought to strive that it may not be necessary. I only say that if worse comes to worst, we should not put on mourning, as if the earth were orphaned of its Maker. One talks of intervention, another of dismemberment, a third of compromise, and men's knees smite one against another for fear; but He that sitteth in the heavens shall laugh. The Lord shall have them in derision. He is greater than Vallandigham. He is stronger than both the Woods'. He is wiser than the New York World. He moves through all the clash of arms. He sits above every political caucus. Opposition will go just as far as He wills, and no farther. Army contractors and unprincipled officers are His instruments. He makes even the wrath of man to praise him, and the remainder he will restrain. 400,000 Israelites went up against 26,000 Benjaminite swordsmen and 700 sharpshooters, and were twice shamefully repulsed with terrible slaughter. Then they came to their senses. In the first place they went forth with a high hand and a stretched-out arm, asking haughtily of the Lord, "Which of us shall go up first to the battle against the children of Benjamin?" But after the pride had been thoroughly beaten out of them, they wept and sat before the Lord, and fasted, and offered burnt offerings and peace offerings, and then asked humbly enough, "Shall I yet again go out to battle against the children of Benjamin my brother, or shall I cease?" Benjamin my brother — they had quite forgotten that little matter

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of relationship in the beginning; but having returned to the Lord, and put themselves under His guidance, they went up the next time to decisive and complete victory. If we do not conquer this rebellion it will be an indelible disgrace upon us, but the truth will not be disgraced. Every individual who does all in his power to conquer it, will share in the shame, but not in the sin. The fact that God works with all who work for Him, should be at once our shield against despondency, and our inspiration to effort. Whether we fail, or whether we succeed, His plans never fail. Sooner or later, by us or by somebody else, the earth shall be redeemed, and Christ shall reign. — From the Congregationalist, Boston, Jan. 2jth, 1862.

Pamphlet 12 John Stuart Mill The Contest in America. Boston, 1862 [One of the most serious intermittent threats to the North during the Civil War was war with Great Britain, which might well have established the permanent independence of the Confederacy. The most dangerous of these threats was the first, the Trent Affair at the end of 1861. The British government, despite the pro-Confederate leanings of some of its officials, was following the accepted rules of neutrality toward the United States. These officials were outraged when an American naval captain violated international law by removing two Confederate commissioners from the Trent, a British vessel bound for Europe. For some days there was intense war fever on both sides of the Atlantic. Fortunately, President Lincoln and Secretary of State William H. Seward deflected the United States from what would have been a suicidal course; they returned the commissioners and made indirect amends. In the aftermath, the sobered British élite seemed more friendly to the United States than before. Few as yet were ardently and emphatically pro-Northern. Nevertheless, as the American minister in London, Charles Francis Adams, reported, the threat of war had impressed upon the "quiet and religious citizens of the middle classes" that if Britain did go to war, she would of necessity be allying herself with a "slave-holding oligarchy." This unfortunate likelihood, which seems to have occurred to many within the British government, was cogently analyzed by the renowned economist, John Stuart Mill (18061873 ) in an article first appearing in Fraser s Magazine in February, 1862. In addition, Mill answered those British who were impatient that the Northerners had not made their cause an abolition war by predicting, "it is probable that if the war last long enough they will be gratified." His influential arguments marked the beginnings of a shift in British journals toward the Northern viewpoint. Opinion in Great Britain was somewhat more favorable when later, less dangerous crises developed. In the United States, Mill's cogent defense of the North, circulated in pamphlet form, carried reassurance in a discouraging time. 1 ] 1 [E. D. Adams, Great Britain and the American Civil War (New York, 1925), I, 240, 242; II, 80-81, 285.]

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THE cloud which for the space of a month hung gloomily over the civilized world, black with far worse evils than those of simple war, has passed from over our heads without bursting. The fear has not been realized, that the only two first-rate Powers who are also free nations would take to tearing each other in pieces, both the one and the other in a bad and odious cause. For while, on the American side, the war would have been one of reckless persistency in wrong, on ours it would have been a war in alliance with, and, to practical purposes, in defence and propagation of, slavery. We had, indeed, been wronged. We had suffered an indignity, and something more than an indignity, which, not to have resented, would have been to invite a constant succession of insults and injuries from the same and from every other quarter. We could have acted no otherwise than we have done: yet it is impossible to think, without something like a shudder, from what we have escaped. We, the emancipators of the slave — who have wearied every Court and Government in Europe and America with our protests and remonstrances, until we goaded them into at least ostensibly cooperating with us to prevent the enslaving of the negro — we, who for the last half century have spent annual sums, equal to the revenue of a small kingdom, in blockading the African coast, for a cause in which we not only had no interest, but which was contrary to our pecuniary interest, and which many believed would ruin, as many among us still, though erroneously, believe that it has ruined, our colonies, — we should have lent a hand to setting up, in one of the most commanding positions of the world, a powerful republic, devoted not only to slavery, but to pro-slavery propagandism — should have helped to give a place in the community of nations to a conspiracy of slave-owners, who have broken their connection with the American Federation on the sole ground, ostentatiously proclaimed, that they thought an attempt would be made to restrain, not slavery itself, but their purpose of spreading slavery wherever migration or force could carry it. A nation which has made the professions that England has, does not with impunity, under however great provocation, betake itself to frustrating the objects for which it has been calling on the rest of the world to make sacrifices of what they think their interest. At present all the nations of Europe have sympathized with us;

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have acknowledged that we were injured, and declared with rare unanimity, that we had no choice but to resist, if necessary, by arms. But the consequences of such a war would soon have buried its causes in oblivion. When the new Confederate States, made an independent Power by English help, had begun their crusade to carry negro slavery from the Potomac to Cape Horn; who would then have remembered that England raised up this scourge to humanity not for the evil's sake, but because somebody had offered an insult to her flag? Or even if unforgotten, who would then have felt that such a grievance was a sufficient palliation of the crime? Every reader of a newspaper, to the farthest ends of the earth, would have believed and remembered one thing only — that at the critical juncture which was to decide whether slavery should blaze up afresh with increased vigor or be trodden out — at the moment of conflict between the good and the evil spirit — at the dawn of a hope that the demon might now at last be chained and flung into the pit, England stepped in, and, for the sake of cotton, made Satan victorious. The world has been saved from this calamity, and England from this disgrace. The accusation would indeed have been a calumny. But to be able to defy calumny, a nation, like an individual, must stand very clear of just reproach in its previous conduct. Unfortunately, we ourselves have given too much plausibility to the charge. Not by anything said or done by us as a Government or as a nation, but by the tone of our press, and in some degree, it must be owned, the general opinion of English society. It is too true, that the feelings which have been manifested since the beginning of the American contest — the judgments which have been put forth, and the wishes which have been expressed concerning the incidents and probable eventualities of the struggle — the bitter and irritating criticism which has been kept up, not even against both parties equally, but almost solely against the party in the right, and the ungenerous refusal of all those just allowances which no country needs more than our own, whenever its circumstances are as near to those of America as a cut finger is to an almost mortal wound, — these facts, with minds not favorably disposed to us, would have gone far to make the most odious interpretation of the war in which we have been so nearly engaged with the United States, appear by many degrees the most probable. There is no denying that our

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attitude towards the contending parties ( I mean our moral attitude, for politically there was no other course open to us than neutrality ) has not been that which becomes a people who are as sincere enemies of slavery as the English really are, and have made as great sacrifices to put an end to it where they could. And it has been an additional misfortune that some of our most powerful journals have been for many years past very unfavorable exponents of English feeling on all subjects connected with slavery: some, probably, from the influences, more or less direct, of West Indian opinions and interests: others from inbred Toryism, which, even when compelled by reason to hold opinions favorable to liberty, is always adverse to it in feeling; which likes the spectacle of irresponsible power exercised by one person over others; which has no moral repugnance to the thought of human beings born to the penal servitude for life, to which for the term of a few years we sentence our most hardened criminals, but keeps its indignation to be expended on "rabid and fanatical abolitionists" across the Atlantic, and on those writers in England who attach a sufficiently serious meaning to their Christian professions, to consider a fight against slavery as a fight for God. Now, when the mind of England, and it may almost be said, of the civilized part of mankind, has been relieved from the incubus which had weighed on it ever since the Trent outrage, and when we are no longer feeling towards the Northern Americans as men feel towards those with whom they may be on the point of struggling for life or death; now, if ever, is the time to review our position, and consider whether we have been feeling what ought to have been felt, and wishing what ought to have been wished, regarding the contest in which the Northern States are engaged with the South. In considering this matter, we ought to dismiss from our minds, as far as possible, those feelings against the North, which have been engendered not merely by the Trent aggression, but by the previous anti-British effusions of newspaper writers and stump orators. It is hardly worth while to ask how far these explosions of ill-humor are anything more than might have been anticipated from ill-disciplined minds, disappointed of the sympathy which they justly thought they had a right to expect from the great anti-slavery people, in their really noble enterprise. It is almost superfluous to remark that a democratic Government always shows worst where other

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Governments generally show best, on its outside; that unreasonable people are much more noisy than the reasonable; that the froth and scum are the part of a violently fermenting liquid that meets the eyes, but are not its body and substance. Without insisting on these things, I contend, that all previous cause of offence should be considered as cancelled, by the reparation which the American Government has so amply made; not so much the reparation itself, which might have been so made as to leave still greater cause of permanent resentment behind it; but the manner and spirit in which they have made it. These have been such as most of us, I venture to say, did not by any means expect. If reparation were made at all, of which few of us felt more than a hope, we thought that it would have been made obviously as a concession to prudence, not to principle. We thought that there would have been truckling to the newspaper editors and supposed fire-eaters who were crying out for retaining the prisoners at all hazards. We expected that the atonement, if atonement there were, would have been made with reservations, perhaps under protest. We expected that the correspondence would have been spun out, and a trial made to induce England to be satisfied with less; or that there would have been a proposal of arbitration; or that England would have been asked to make concessions in return for justice; or that if submission was made, it would have been made, ostensibly, to the opinions and wishes of Continental Europe. We expected anything, in short, which would have been weak and timid and paltry. The only thing which no one seemed to expect, is what has actually happened. Mr. Lincoln's Government have done none of these things. Like honest men, they have said in direct terms, that our demand was right; that they yielded to it because it was just; that if they themselves had received the same treatment, they would have demanded the same reparation; and that if what seemed to be the American side of a question was not the just side, they would be on the side of justice; happy as they were to find after their resolution had been taken, that it was also the side which America had formerly defended. Is there any one, capable of a moral judgment or feeling, who will say that his opinion of America and American statesmen, is not raised by such an act, done on such grounds? The act itself may have been imposed by the necessity of the circumstances; but the reasons given, the principles of action

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professed, were their own choice. Putting the worst hypothesis possible, which it would be the height of injustice to entertain seriously, that the concession was really made solely to convenience, and that the profession of regard for justice was hypocrisy, even so, the ground taken, even if insincerely, is the most hopeful sign of the moral state of the American mind which has appeared for many years. That a sense of justice should be the motive which the rulers of a country rely on, to reconcile the public to an unpopular, and what might seem a humiliating act; that the journalists, the orators, many lawyers, the Lower House of Congress, and Mr. Lincoln's own naval secretary, should be told in the face of the world, by their own Government, that they have been giving public thanks, presents of swords, freedom of cities, all manner of heroic honors to the author of an act which, though not so intended, was lawless and wrong, and for which the proper remedy is confession and atonement; that this should be the accepted policy (supposing it to be nothing higher) of a Democratic Republic, shows even unlimited democracy to be a better thing than many Englishmen have lately been in the habit of considering it, and goes some way towards proving that the aberrations even of a ruling multitude are only fatal when the better instructed have not the virtue or the courage to front them boldly. Nor ought it to be forgotten, to the honor of Mr. Lincoln's Government, that in doing what was in itself right, they have done also what was best fitted to allay the animosity which was daily becoming more bitter between the two nations so long as the question remained open. They have put the brand of confessed injustice upon that rankling and vindictive resentment with which the profligate and passionate part of the American press has been threatening us in the event of concession, and which is to be manifested by some dire revenge, to be taken, as they pretend, after the nation is extricated from its present difficulties. Mr. Lincoln has done what depended on him to make this spirit expire with the occasion which raised it up; and we shall have ourselves chiefly to blame if we keep it alive by the further prolongation of that stream of vituperative eloquence, the source of which, even now, when the cause of quarrel has been amicably made up, does not seem to have run dry.2 2 1 do not forget one regrettable passage in Mr. Seward's letter, in which he said that "if the safety of the Union required the detention of the captured persons, it

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Let us, then, without reference to these jars, or to the declamations of newspaper writers on either side of the Atlantic, examine the American question as it stood from the beginning; its origin, the purpose of both the combatants, and its various possible or probable issues. There is a theory in England, believed perhaps by some, half believed by many more, which is only consistent with original ignorance, or complete subsequent forgetfulness, of all the antecedents of the contest. There are people who tell us that, on the side of the North, the question is not one of slavery at all. The North, it seems, have no more objection to slavery than the South have. Their leaders never say one word implying disapprobation of it. They are ready, on the contrary, to give it new guarantees; to renounce all that they have been contending for; to win back, if opportunity offers, the South to the Union by surrendering the whole point. If this be the true state of the case, what are the Southern chiefs fighting about? Their apologists in England say that it is about tariffs, and similar trumpery. They say nothing of the kind. They tell the world, and they told their own citizens when they wanted their votes, that the object of the fight was slavery. Many years ago, when General Jackson was President, South Carolina did nearly rebel (she never was near separating) about a tariff; but no other State abetted her, and a strong adverse demonstration from Virginia brought the matter to a close. Yet the tariff of that day was rigidly protective. Compared with that, the one in force at the time of the secession was a free-trade tariff. This latter was the result of several successive modifications in the direction of freedom; and its principle was not protection for protection, but as much of it only as might incidentally result from duties imposed for revenue. Even the Morrill tariff (which never could have been passed but for the Southern secession) is stated by the high authority of Mr. H. C. would be the right and duty of this Government to detain them." I sincerely grieve to find this sentence in the dispatch, for the exceptions to the general rules of morality are not a subject to be lightly or unnecessarily tampered with. The doctrine in itself is no other than that professed and acted on by all governments — that selfpreservation, in a State, as in an individual, is a warrant for many things which at all other times ought to be rigidly abstained from. At all events, no nation which has ever passed "laws of exception," which ever suspended the Habeas Corpus Act or passed an Alien Bill in dread of a Chartist insurrection, has a right to throw the first stone at Mr. Lincoln's Government.

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Carey to be considerably more liberal than the reformed French tariff under Mr. Cobden's treaty; insomuch that he, a Protectionist, would be glad to exchange his own protective tariff for Louis Napoleon's free-trade one. But why discuss, on probable evidence, notorious facts? The world knows what the question between the North and South has been for many years, and still is. Slavery alone was thought of, alone talked of. Slavery was battled for and against, on the floor of Congress and in the plains of Kansas; on the slavery question exclusively was the party constituted which now rules the United States: on slavery Fremont was rejected, on slavery Lincoln was elected; the South separated on slavery, and proclaimed slavery as the one cause of separation. It is true enough that the North are not carrying on war to abolish slavery in the States where it legally exists. Could it have been expected, or even perhaps desired, that they should? A great party does not change suddenly, and at once, all its principles and professions. The Republican party have taken their stand on law, and the existing constitution of the Union. They have disclaimed all right to attempt anything which that constitution forbids. It does forbid interference by the Federal Congress with slavery in the Slave States; but it does not forbid their abolishing it in the District of Columbia; and this they are now doing, having voted, I perceive, in their present pecuniary straits, a million of dollars to indemnify the slave-owners of the District. Neither did the Constitution, in their own opinion, require them to permit the introduction of slavery into the territories which were not yet States. To prevent this, the Republican party was formed, and to prevent it, they are now fighting, as the slave-owners are fighting to enforce it. The present government of the United States is not an Abolitionist government. Abolitionists, in America, mean those who do not keep within the constitution; who demand the destruction (as far as slavery is concerned) of as much of it as protects the internal legislation of each State from the control of Congress; who aim at abolishing slavery wherever it exists, by force if need be, but certainly by some other power than the constituted authorities of the Slave States. The Republican party neither aim nor profess to aim at this object. And when we consider the flood of wrath which would have been poured out against them if they did, by the very writers who now taunt them with not doing it, we shall be apt to

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think the taunt a little misplaced. But though not an Abolitionist party, they are a Free-soil party. If they have not taken arms against slavery, they have against its extension. And they know, as we may know if we please, that this amounts to the same thing. The day when slavery can no longer extend itself, is the day of its doom. The slave-owners know this, and it is the cause of their fury. They know, as all know who have attended to the subject, that confinement within existing limits is its death-warrant. Slavery, under the conditions in which it exists in the States, exhausts even the beneficent powers of nature. So incompatible is it with any kind whatever of skilled labor, that it causes the whole productive resources of the country to be concentrated on one or two products, cotton being the chief, which require, to raise and prepare them for the market, little besides brute animal force. The cotton cultivation, in the opinion of all competent judges, alone saves North American slavery; but cotton cultivation, exclusively adhered to, exhausts in a moderate number of years all the soils which are fit for it, and can only be kept up by travelling farther and farther westward. Mr. Olmsted has given a vivid description of the desolate state of parts of Georgia and the Carolinas, once among the richest specimens of soil and cultivation in the world; and even the more recently colonized Alabama, as he shows, is rapidly following in the same downhill track. To slavery, therefore, it is a matter of life and death to find fresh fields for the employment of slave labor. Confine it to the present States, and the owners of slave property will either be speedily ruined, or will have to find means of reforming and renovating their agricultural system; which cannot be done without treating the slaves like human beings, nor without so large an employment of skilled, that is, of free labor, as will widely displace the unskilled, and so depreciate the pecuniary value of the slave, that the immediate mitigation and ultimate extinction of slavery would be a nearly inevitable and probably rapid consequence. The Republican leaders do not talk to the public of these almost certain results of success in the present conflict. They talk but little, in the existing emergency, even of the original cause of quarrel. The most ordinary policy teaches them to inscribe on their banner that part only of their known principles in which their supporters are unanimous. The preservation of the Union is an object about which

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the North are agreed; and it has many adherents, as they believe, in the South generally. That nearly half the population of the Border Slave States are in favor of it is a patent fact, since they are now fighting in its defence. It is not probable that they would be willing to fight directly against slavery. The Republicans well know that if they can reëstablish the Union, they gain everything for which they originally contended; and it would be a plain breach of faith with the Southern friends of the Government, if, after rallying them round its standard for a purpose of which they approve, it were suddenly to alter its terms of communion without their consent. But the parties in a protracted civil war almost invariably end by taking more extreme, not to say higher grounds of principle, than they began with. Middle parties and friends of compromise are soon left behind; and if the writers who so severely criticize the present moderation of the Free-soilers are desirous to see the war become an abolition war, it is probable that if the war lasts long enough they will be gratified. Without the smallest pretension to see further into futurity than other people, I at least have foreseen and foretold from the first, that if the South were not promptly put down, the contest would become distinctly an anti-slavery one; nor do I believe that any person, accustomed to reflect on the course of human affairs in troubled times, can expect anything else. Those who have read, even cursorily, the most valuable testimony to which the English public have access, concerning the real state of affairs in America — the letters of the Times correspondent, Mr. Russell — must have observed how early and rapidly he arrived at the same conclusion, and with what increasing emphasis he now continually reiterates it. In one of his recent letters he names the end of next summer as the period by which, if the war has not sooner terminated, it will have assumed a complete anti-slavery character. So early a term exceeds, I confess, my most sanguine hopes; but if Mr. Russell be right, Heaven forbid that the war should cease sooner; for if it lasts till then, it is quite possible that it will regenerate the American people. If, however, the purposes of the North may be doubted or misunderstood, there is at least no question as to those of the South. They make no concealment of their principles. As long as they were allowed to direct all the policy of the Union; to break through compromise after compromise, encroach step after step, until they reached the pitch of claiming a right to carry slave property into

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the Free States, and, in opposition to the laws of those States, hold it as property there; so long, they were willing to remain in the Union. The moment a President was elected of whom it was inferred from his opinions, not that he would take any measures against slavery where it exists, but that he would oppose its establishment where it exists not, — that moment they broke loose from what was, at least, a very solemn contract, and formed themselves into a Confederation professing as its fundamental principle not merely the perpetuation, but the indefinite extension of slavery. And the doctrine is loudly preached through the new Republic, that slavery, whether black or white, is a good in itself, and the proper condition of the working classes everywhere. Let me, in a few words, remind the reader what sort of a thing this is, which the white oligarchy of the South have banded themselves together to propagate and establish, if they could, universally. When it is wished to describe any portion of the human race as in the lowest state of debasement, and under the most cruel oppression, in which it is possible for human beings to live, they are compared to slaves. When words are sought by which to stigmatize the most odious despotism, exercised in the most odious manner, and all other comparisons are found inadequate, the despots are said to be like slave-masters, or slave-drivers. What, by a rhetorical license, the worst oppressors of the human race, by way of stamping on them the most hateful character possible, are said to be, these men, in very truth, are. I do not mean that all of them are hateful personally, any more than all the Inquisitors, or all the buccaneers. But the position which they occupy, and the abstract excellence of which they are in arms to vindicate, is that which the united voice of mankind habitually selects as the type of all hateful qualities. I will not bandy chicanery about the more or less of stripes or other torments which are daily requisite to keep the machine in working order, nor discuss whether the Legrees or the St. Clairs are more numerous among the slave-owners of the Southern States. The broad facts of the case suffice. One fact is enough. There are, Heaven knows, vicious and tyrannical institutions in ample abundance on the earth. But this institution is the only one of them all which requires, to keep it going, that human beings should be burnt alive. The calm and dispassionate Mr. Olmsted affirms that there has not been a single year, for many years past, in which

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this horror is not known to have been perpetrated in some part or other of the South. And not upon negroes only; the Edinburgh Review, in a recent number, gave the hideous details of the burning alive of an unfortunate Northern huckster by Lynch law, on mere suspicion of having aided in the escape of a slave. What must American slavery be, if deeds like these are necessary under it? — and if they are not necessary and are yet done, is not the evidence against slavery still more damning? The South are in rebellion not for simple slavery; they are in rebellion for the right of burning human creatures alive. But we are told, by a strange misapplication of a true principle, that the South had a right to separate; that their separation ought to have been consented to, the moment they showed themselves ready to fight for it; and that the North, in resisting it, are committing the same error and wrong which England committed in opposing the original separation of the thirteen colonies. This is carrying the doctrine of the sacred right of insurrection rather far. It is wonderful how easy and liberal and complying people can be in other people's concerns. Because they are willing to surrender their own past, and have no objection to join in reprobation of their greatgrandfathers, they never put themselves the question what they themselves would do in circumstances far less trying, under far less pressure of real national calamity. Would those who profess these ardent revolutionary principles consent to their being applied to Ireland, or India, or the Ionian Islands? How have they treated those who did attempt so to apply them? But the case can dispense with any mere argumentum ad hominem. I am not frightened at the word rebellion. I do not scruple to say that I have sympathized more or less ardently with most of the rebellions, successful and unsuccessful, which have taken place in my time. But I certainly never conceived that there was a sufficient title to my sympathy in the mere fact of being a rebel; that the act of taking arms against one's fellow-citizens was so meritorious in itself, was so completely its own justification, that no question need be asked concerning the motive. It seems to me a strange doctrine that the most serious and responsible of all human acts imposes no obligation on those who do it of showing that they have a real grievance; that those who rebel for the power of oppressing others, exercise as sacred a right as those who do the same thing to resist oppression practised upon

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themselves. Neither rebellion nor any other act which affects the interests of others, is sufficiently legitimated by the mere will to do it. Secession may be laudable, and so may any other kind of insurrection; but it may also be an enormous crime. It is the one or the other, according to the object and the provocation. And if there ever was an object which, by its bare announcement, stamped rebels against a particular community as enemies of mankind, it is the one professed by the South. Their right to separate is the right which Cartouche or Turpin would have had to secede from their respective countries, because the laws of those countries would not suffer them to rob and murder on the highway. The only real difference is that the present rebels are more powerful than Cartouche or Turpin, and may possibly be able to effect their iniquitous purpose. Suppose, however, for the sake of argument, that the mere will to separate were in this case, or in any case, a sufficient ground for separation, I beg to be informed whose will? The will of any knot of men who, by fair means or foul, by usurpation, terrorism, or fraud, have got the reins of government into their hands? If the inmates of Parkhurst Prison were to get possession of the Isle of Wight, occupy its military positions, enlist one part of its inhabitants in their own ranks, set the remainder of them to work in chain gangs, and declare themselves independent, ought their recognition by the British Government to be an immediate consequence? Before admitting the authority of any persons, as organs of the will of the people, to dispose of the whole political existence of a country, I ask to see whether their credentials are from the whole, or only from a part. And first, it is necessary to ask, Have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population. However natural in the country itself, it is rather cool in English writers who talk so glibly of the ten millions ( I believe there are only eight ), to pass over the very existence of four millions who must abhor the idea of separation. Remember, we consider them to be human beings, entitled to human rights. Nor can it be doubted that the mere fact of belonging to a Union in some parts of which slavery is reprobated, is some alleviation of their condition, if only as regards future probabilities. But even of the white population, it is questionable if there was in the beginning a majority for secession

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anywhere but in South Carolina. Though the thing was pre-determined, and most of the States committed by their public authorities before the people were called on to vote; though in taking the votes terrorism in many places reigned triumphant; yet even so, in several of the States, secession was carried only by narrow majorities. In some the authorities have not dared to publish the numbers; in some it is asserted that no vote has ever been taken. Further (as was pointed out in an admirable letter by Mr. Carey), the Slave States are intersected in the middle, from their northern frontier almost to the Gulf of Mexico, by a country of free labor — the mountain region of the Alleghanies and their dependencies, forming parts of Virginia, North Carolina, Tennessee, Georgia, and Alabama, in which, from the nature of the climate and of the agricultural and mining industry, slavery to any material extent never did, and never will, exist. This mountain zone is peopled by ardent friends of the Union. Could the Union abandon them, without even an effort, to be dealt with at the pleasure of an exasperated slaveowning oligarchy? Could it abandon the Germans who, in Western Texas, have made so meritorious a commencement of growing cotton on the borders of the Mexican Gulf by free labor? Were the right of the slave-owners to secede ever so clear, they have no right to carry these with them; unless allegiance is a mere question of local proximity, and my next neighbor, if I am a stronger man, can be compelled to follow me in any lawless vagaries I choose to indulge. But (it is said) the North will never succeed in conquering the South; and since the separation must in the end be recognized, it is better to do at first what must be done at last; moreover, if it did conquer them, it could not govern them when conquered, consistently with free institutions. With no one of these propositions can I agree. Whether or not the Northern Americans will succeed in reconquering the South, I do not affect to foresee. That they can conquer it, if their present determination holds, I have never entertained a doubt; for they are twice as numerous, and ten or twelve times as rich. Not by taking military possession of their country, or marching an army through it, but by wearing them out, exhausting their resources, depriving them of the comforts of life, encouraging their slaves to desert, and excluding them from communication with for-

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eign countries. All this, of course, depends on the supposition that the North does not give in first. Whether they will persevere to this point, or whether their spirit, their patience, and the sacrifices they are willing to make, will be exhausted before reaching it, I cannot tell. They may, in the end, be wearied into recognizing the separation. But to those who say that because this may have to be done at last, it ought to have been done at first, I put the very serious question — On what terms? Have they ever considered what would have been the meaning of separation if it had been assented to by the Northern States when first demanded? People talk as if separation meant nothing more than the independence of the seceding States. To have accepted it under that limitation would have been, on the part of the South, to give up that which they have seceded expressly to preserve. Separation, with them, means at least half the Territories; including the Mexican border, and the consequent power of invading and overrunning Spanish America for the purpose of planting there the "peculiar institution" which even Mexican civilization has found too bad to be endured. There is no knowing to what point of degradation a country may be driven in a desperate state of its affairs; but if the North ever, unless on the brink of actual ruin, makes peace with the South, giving up the original cause of quarrel, the freedom of the Territories; if it resigns to them when out of the Union that power of evil which it would not grant to retain them in the Union — it will incur the pity and disdain of posterity. And no one can suppose that the South would have consented, or in their present temper ever will consent, to an accommodation on any other terms. It will require a succession of humiliation to bring them to that. The necessity of reconciling themselves to the confinement of slavery within its existing boundaries, with the natural consequence, immediate mitigation of slavery, and ultimate emancipation, is a lesson which they are in no mood to learn from anything but disaster. Two or three defeats in the field, breaking their military strength, though not followed by an invasion of their territory, may possibly teach it to them. If so, there is no breach of charity in hoping that this severe schooling may promptly come. When men set themselves up, in defiance of the rest of the world, to do the devil's work, no good can come of them until the world has made them feel that this work cannot be suffered to be done any longer. If this knowledge does not come to

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them for several years, the abolition question will by that time have settled itself. For assuredly Congress will very soon make up its mind to declare all slaves free who belong to persons in arms against the Union. When that is done, slavery, confined to a minority, will soon cure itself; and the pecuniary value of the negroes belonging to loyal masters will probably not exceed the amount of compensation which the United States will be willing and able to give. The assumed difficulty of governing the Southern States as free and equal commonwealths, in case of their return to the Union, is purely imaginary. If brought back by force, and not by voluntary compact, they will return without the Territories, and without a Fugitive Slave Law. It may be assumed that in that event the victorious party would make the alterations in the Federal Constitution which are necessary to adapt it to the new circumstances, and which would not infringe, but strengthen, its democratic principles. An article would have to be inserted prohibiting the extension of slavery to the Territories, or the admission into the Union of any new Slave State. Without any other guarantee, the rapid formation of new Free States would ensure to freedom a decisive and constantly increasing majority in Congress. It would also be right to abrogate that bad provision of the Constitution ( a necessary compromise at the time of its first establishment) whereby the slaves, though reckoned as citizens in no other respect, are counted, to the extent of three fifths of their number, in the estimate of the population for fixing the number of representatives of each State in the Lower House of Congress. Why should the masters have members in right of their human chattels, any more than of their oxen and pigs? The President, in his Message, has already proposed that this salutary reform should be effected in the case of Maryland, additional territory, detached from Virginia, being given to that State as an equivalent: thus clearly indicating the policy which he approves, and which he is probably willing to make universal. As it is necessary to be prepared for all possibilities, let us now contemplate another. Let us suppose the worst possible issue of this war — the one apparently desired by those English writers whose moral feeling is so philosophically indifferent between the apostles of slavery and its enemies. Suppose that the North should stoop to recognize the new Confederation on its own terms, leaving it half the Territories, and that it is acknowledged by Europe, and

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takes its place as an admitted member of the community of nations. It will be desirable to take thought beforehand what are to be our own future relations with a new Power, professing the principles of Attila and Genghis Khan as the foundation of its Constitution. Are we to see with indifference its victorious army let loose to propagate their national faith at the rifle's mouth through Mexico and Central America? Shall we submit to see fire and sword carried over Cuba and Porto Rico, and Hayti and Liberia conquered and brought back to slavery? W e shall soon have causes enough of quarrel on our own account. When w e are in the act of sending an expedition against Mexico to redress the wrongs of private British subjects, we should do well to reflect in time that the President of the new Republic, Mr. Jefferson Davis, was the original inventor of repudiation. Mississippi was the first State which repudiated, Mr. Jefferson Davis was Governor of Mississippi, and the Legislature of Mississippi had passed a Bill recognizing and providing for the debt, which Bill Mr. Jefferson Davis vetoed. Unless we abandon the principles we have for two generations consistently professed and acted on, we should be at war with the new Confederacy within five years about the African slave-trade. An English Government will hardly be base enough to recognize them, unless they accept all the treaties by which America is at present bound; nor, it may be hoped, even if de facto independent, would they be admitted to the courtesies of diplomatic intercourse, unless they granted in the most explicit manner the right of search. To allow the slave-ships of a Confederation formed for the extension of slavery to come and go free, and unexamined, between America and the African coast, would be to renounce even the pretence of attempting to protect Africa against the man-stealer, and abandon that Continent to the horrors, on a far larger scale, which were practised before Granville Sharp and Clarkson were in existence. But even if the right of intercepting their slavers were acknowledged by treaty, which it never would be, the arrogance of the Southern slave-holders would not long submit to its exercise. Their pride and self-conceit, swelled to an inordinate height by their successful struggle, would defy the power of England as they had already successfully defied that of their Northern countrymen. After our people by their cold disapprobation, and our press by its invective, had combined with their own difficulties to damp the spirit of the Free States, and drive them to submit and

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make peace, we should have to fight the Slave States ourselves at far greater disadvantages, when we should no longer have the wearied and exhausted North for an ally. The time might come when the barbarous and barbarizing Power, which we by our moral support had helped into existence, would require a general crusade of civilized Europe, to extinguish the mischief which it had allowed, and we had aided, to rise up in the midst of our civilization. For these reasons I cannot join with those who cry Peace, peace. I cannot wish that this war should not have been engaged in by the North, or that being engaged in, it should be terminated on any conditions but such as would retain the whole of the Territories as free soil. I am not blind to the possibility that it may require a long war to lower the arrogance and tame the aggressive ambition of the slave-owners, to the point of either returning to the Union, or consenting to remain out of it with their present limits. But war, in a good cause, is not the greatest evil which a nation can suffer. War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse. When a people are used as mere human instruments for firing cannon or thrusting bayonets, in the service and for the selfish purposes of a master, such war degrades a people. A war to protect other human beings against tyrannical injustice; a war to give victory to their own ideas of right and good, and which is their own war, carried on for an honest purpose by their free choice — is often the means of their regeneration. A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature, who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other. I am far from saying that the present struggle, on the part of the Northern Americans, is wholly of this exalted character; that it has arrived at the stage of being altogether a war for justice, a war of principle. But there was from the beginning, and now is, a large infusion of that element in it; and this is increasing, will increase, and if the war lasts, will in the end predominate. Should that time come, not only will the greatest enormity which still exists among mankind as an

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institution, receive far earlier its coup de grâce than there has ever, until now, appeared any probability of; but in effecting this the Free States will have raised themselves to that elevated position in the scale of morality and dignity, which is derived from great sacrifices consciously made in a virtuous cause, and the sense of an inestimable benefit to all future ages, brought about by their own voluntary efforts.

Pamphlet

13

Emma Willard Via Media: A Peaceful and Permanent of the Slavery

Settlement

Question.

Washington, 1862

[If only the quarrel over slavery could be ended, reasoned Emma Willard, the most eminent woman educator of her era, the Civil War would end with it. In Via Media, which appeared in May, 1862, she proposed as a compromise "regulated servitude" short of freedom but ameliorating existing harshness. Her views reflect the quandary of Northern moderates who disliked slavery and regarded colonization of freed Negroes as a failure yet could not stomach abolition. She believed in the inherent inferiority of Negroes and argued that perhaps God had created them with their distinct color to set them apart permanently as servants to aid weak white women. General George B. McClellan assured Mrs. Willard that her pamphlet set forth views identical with his own, but her nephew, John Willard, chided kindly that events had carried the issue of slavery beyond compromise. Mrs. Willard (1787-1870), a leader in women's education, established the Troy Female Seminary in 1821; she helped improve common schools and wrote history and geography textbooks — and the poem, "Rocked in the Cradle of the Deep." She had the unusual experience in July, 1864, of being aboard a train between Baltimore and Philadelphia that was captured by Confederate raiders. She was released unharmed and continued north by boat. 1 ]

T H E A F R I C A N IN A M E R I C A . TO FIND HIS TRUE POSITION, AND PLACE HIM IN IT, THE VIA MEDIA ON WHICH THE NORTH AND SOUTH MIGHT MEET IN A PERMANENT AND HAPPY SETTLEMENT.

THIS nation appears evidently near a crisis, in which the forms of our past policy, in regard to the Africans among us, must encounter a change. A great upheaval — a bloody civil war, having reference 1

[Alma Lutz, Emma Willard, Daughter of Democracy (Boston, 1929).]

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to that race, has so commingled and dissolved the political elements, that they are now in a plastic state, and ready to be moulded for futurity — well or ill, as wisdom or folly shall rule the hour. Light is needed, and will be welcome, even should it come glimmering from an earthen vase — long used, and ready to mingle with its native dust. Our subject is the African race as existing in this nation, North and South; and the great question underlying it is — what, considering their peculiar characteristics, ought to be their condition in our social system? And we conceive that the inquiry would become simplified, if the statesman should first look at it in the single aspect of righteous dealing to the race; for, if he find what this would be, he may surely expect that in following it out, he would produce a state of things among us, good for all; for good and right, duty and expediency, as God sees them, are one. Said the eloquent Henry Ward Beecher, (who has recently modified his views respecting the negroes,) "If I had been God, I would not have made them at all; but since He who is wiser than all of us put together has seen fit to make them, and bring them here, what are you going to do with them?" 2 Bating a touch of profanity, we would thank Mr. Beecher for this candid statement of the case, indicating, as it does, the great error of fanaticism. God grant it may see and retrace its mistakes, before it is yet too late to save our country from their direful effects! Doubtless God made the negro, and He made him as He made the white man, after His own perfect pattern, and fitted him to his peculiar place and duties; and the reason of men's embarrassment respecting him is, that, overlooking the indications of God's will concerning him, they have jumped to conclusions from their own conceits. That this is true is evident from the fact that they find the negro made amiss. Said the late Governor Slade, and he sighed deeply as he spoke — "After all that we can do for the negroes, they must be black!" Among the philosophers who have thought the creation might have been improved had the Almighty taken them into His counsels, we may now reckon Mr. Beecher, in addition to King Alphonso of Portugal — the last respecting the stars of the heavens, and the first respecting the negroes of the earth. And be it remarked, they were 2

A highly respectable lady who heard him, related this to me, and to others.

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both in advance of those who remained satisfied with the false systems received around them. Of those false systems, none are more pernicious, none fraught with more fatal consequences to our social system, as regards both our race and the African, than that which sets up for the political equality of the negro race, and holds them entitled, in this country, to all the political privileges of the whites. I particularly take exception to this, as a woman. Reckoning, for the sake of the argument, that the people of this nation exist in four parts — ist, the white men; 2d, the white women; 3d, the negroes; and 4th, the Indians — there is but one part of the four, the white men, to whom political power appertains; and it should only be to the educated among them. Others have nothing to do, either with making constitutional laws or legislative enactments, or any share in administering them after they are made; and so we hold it right that it should be. We sit down contentedly in a class which has not this power, believing that in the present state of the world our political rights and those of our children are safest in the hands of the educated men of our race; and that to take care of them is their high and sacred duty, — a duty which is not transferable, and which they cannot impart to the men of a subordinate race, without a keenly-felt indignity and wrong inflicted upon us. Observe here that we are not discussing absolute inferiority and its opposite. The dependent vine hangs her rich clusters upon the rough arms of the self-supporting oak; yet who says that the vine, as a work of God, is inferior to the oak? Neither is the small and beautiful wheat stalk inferior to either; or even the lowly esculent that hides in the ground the nutritious bulb which gives food to nations. Among the human race the greatness which will decide our acceptance with God, is to be judged of by the rule, he that would be great among you, let him be your ministering servant. In this sense, and even intellectually, the wife may be greater than the husband, and the servant greater than either; but, both in the family and in the State, order must prevail; law, human and divine, must have its course; and the good show their goodness by submission. This is one of the trials of this life, by which immortal beings become fitted for a better. Were a grand family procession to set forth in the order appointed

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by Providence, the white men would go first, the white women with their children second, and next the colored servants. And who knows but one of the causes — not the principal, which doubtless relates to climate — why the Almighty has seen fit to distinguish them by color, is that their place in the family shall be unmistakably settled, so that all jealous heart-burnings and vain expectations shall be spared, and a permanent order in the household be established? We know by the ten commandments that the servant's place in the family is sanctioned by God; and who knows that in forming the negro He has not had it in view to create a race with a mission to serve the white women, and add strength to their physical weakness? Concerning the effects of climate — the colored man, by his extended apparatus for breathing, inhales in a given time as much oxygen from the diluted atmosphere of the South, as the white man, with his small mouth and compressed nostril, gets from the concentrated atmosphere of the North; while by the negro's superior evaporating apparatus he is kept cool, where a white man would perish from heat. But the white man may, by keeping in shelter, inhabit the same region, and by his superior brain (the average difference being calculated at from 21 to 18,) may direct his energies, though he cannot labor by his side. And, while only a few negroes would be employed at the North, the great body of them would be retained as field-laborers at the South. It is man's wisdom to worship God, as the Universal, All-Wise Ruler, not only by following out the indications of His will in His works of nature, but in submitting to the dispensations of His righteous providence. He has not only made the negro as he is, but He has placed him here, and in such numbers that he cannot now be removed; and our first duty concerning him is to settle his true position among us. There is an ulterior object, dear to the heart of Christian philanthropists, especially those of the African race, which looks to their ultimate removal to Liberia. This should not be lost sight of; but it can by no possibility go forward but at a rate too slow to make much difference in the account of what is now to be done with the Africans of America. They amount to four millions, and they cannot he sent away, for the sufficient reason that VOLUNTARILY THEY WILL NOT GO. Free or slave, they prefer to remain where they are. Among the free blacks of the North, the Colonization Society has long been

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setting forth the advantages of their quitting the useless strife for equal position with the whites, and telling them how much better it would be for them to go back to the country of their fathers — where the abilities of such black men as Roberts and Benson have already shown that their intellectual powers are equal to the founding and governing of a nation. How eloquently have Crummell and others shown them that they may not only acquire wealth and position, but benefit their race, and serve humanity at large, by going thither to join and aid their brethren! Yet how few have listened to the appeal; — and as regards the sending of the slaves of the South to Liberia, (a few instances to the contrary,) we find that they are unwilling to go, even when masters are willing to send them. Said a Virginia chambermaid to me in 1832, when I asked her "what do your people think about the new plan of your being sent to Liberia?" "Why, they thought well of it at first, and Aunt Flora and her husband, when their master gave them the chance, went with all their children; but after a year we had this word from them — that we had better stay and eat grass in old Virginia than to come there." In 1846, during a tour through the slave States, I learned many facts on this, and cognate subjects. One which I received from the excellent Judge McGhee, of Woodville, Mississippi, I relate as the representative of a class. "James," said he to a colored servant of middle age, "you have served me faithfully, you have deserved your freedom, and I now offer it to you, advising you to go to Liberia." "Will master go to Liberia?" said the servant. "No, James, I cannot leave home." "Then if master can't go, I can't; all I want is to be as I have been, and live with master." If, then, the servants of good Southern masters are useful, happy, and contented, why are we not to consider that the problem is already solved, and theirs is, in reality, the true position of the American Africans? It might be so, if all masters, like these, were, in their treatment to them, governed by kindness and Christianity; and if death and change were not the order of the world. And, indeed, it is not our voice which would ever alter these affectionate relations between good masters and good servants — who, indeed, ought not to be called slaves and slave-holders — but we wish the whole system to become modified, so that the barbarous laws of slavery, under which the race are liable to great abuses, many actually suffering them, may be abrogated and succeeded by those of a civilized char-

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acter, in which the true rights of the black man shall be recognised and duly guarded by law. That the African is a man, all believe; and what is it but a barbarism to say, as has been said, that he has not a right in this country which the white man is bound to respect? That the husband has no right to his wife; the father and mother no right to the child — that all fathers, mothers, and children, though accustomed to indulgences, may be taken, should they chance to lose the best of masters, or he become poor, and sold separately into distant lands; or, still worse, when the slave-collector, sent by the spirit of gain, comes to buy human herds for some hard service in distant unhealthy lands, these plantation slaves may then be collected and penned up like cattle for a fair; and how is manhood degraded when the slave is set up on a block and shown off to be sold as a chattel to the highest bidder! and childhood is there — and womanhood — thrice degraded! If we would purge away slavery by taking from the laws the gross faults by which they are deformed, it is not that the watchful care which the good master affords to his servant, and which his dependent spirit and improvident nature makes him need, should be destroyed; nor yet that the master should be deprived of his right to the services of a race whom otherwise he could not provide for or protect; but that there should be limitations to this power made by law; and guards fixed which shall shield the negro in case of the death or poverty of his master, as well as against his abuses: [See Note A] — in fine, to use the language of the Rev. Dr. Fuller, of Baltimore, that "masters should become guardians of their slaves and extend over them a parental government;" and that the race be thus raised from the condition of slavery to that of a regulated servitude; and this on the principle that though the master owns the time, according to restrictions of law, yet he does not own the man, — he belongs to God. This we believe would place the negroes in their true position; and it is exactly the one which every good master, and especially every good mistress, at the South would desire to see established by law, and which, if it were established, the South would be honored, and humanity everywhere would rejoice. We are persuaded that this change is possible, and that it might be brought about by a tribunal composed of the best minds of such American statesmen as are thoroughly acquainted with the condition of the country and

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3

the character of the race to be dealt with; and we say this in the confident hope that if such a change were cordially entered upon by the South, it would form the basis of a permanent settlement of the great question at issue between the North and the South, and eventually bring improvement and happiness to the colored race; whereas we believe that to emancipate them, in their present condition, would be likely to result, first in misery and confusion, and next in their final extermination. [For a continuation of this subject, see Note B.] Here we wish to meet by facts an anticipated objection from those who maintain that the negro is wronged unless he has absolute freedom. Two wealthy slave-holders, of Virginia, becoming conscientiously imbued with the opinion that they were then living in the commission of sin, emigrated with their slaves to western New York; and, together, purchased a fine tract of land on one of the most beautiful lakes in the State. They laid it out into small farms, and built comfortable houses for the negroes, with places for worship and instruction. Here the liberated slaves were to enjoy their paradise of freedom. But alas, they managed ill, and were neither prosperous nor happy. And although at first their benefactors would wind them up whenever they ran down, yet they at length became discouraged, and convinced that their labors were hopeless; and they must abandon their generous scheme as a failure.4 The abolition of the mild form of slavery which existed in New England 5 and New York at and after the Revolution, was an honest outburst of alarmed conscientiousness. But with facts as they now stand developed, it may fairly be questioned whether it did not produce, especially to the negroes, injury, where good was intended. The venerable Stephen Van Rensselaer, former patroon of Albany, mourned in his later days for the share he had taken in it; for he said "there were then forty of these home servants to the manor born, and I have lived to see every one of them go into the gutter." 6 So said the late Colonel Van Ness, formerly of New York, respecting the 3

Such men, for example, as the Rev. Dr. Fuller, of Baltimore. 1 had this account last winter from General Swift. I have endeavored to give it exactly as he related it, but if there should be mistakes they would doubtless be mine, for he described from personal knowledge. 5 A capital description of the former condition of the few petted negroes of New England exists in a work, "The Minister's Wooing," by Mrs. H. Beecher Stowe. • For the truth of this fact I refer to the Rev. Dr. Campbell, of Albany. 4

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colored dependents of the wealthy and extensive family to which he belonged; and so have said many others. And here we remark, as accounting in part for the differences of opinion which prevail among us on the African question, that a singular and unaccountable difference exists among the individual negroes of the African tribes. The characteristic of the masses, as shown by Dr. Livingstone and others, is unquestioning obedience to their chiefs. But whence come the chiefs, endued as they are with the vast knowledge and extensive cares which appertain to their governments? Above all, many of these chiefs have the mental element of a great will, and they exercise it without any touch of conscientiousness. Dr. Livingstone asked Matiamuo why he sent to such a great distance for certain of his subjects. "To kill them," was the answer of the chief. "There are too many of them, and I want to thin them out." Yet, though suspecting his cruel designs, his subjects would follow their instinct of obedience, and come when he sent for them. This difference between the chief and his subjects among Africans seems to me as difficult to be accounted for, as royalty among the bees. And if, in the guardianship of a master over them, he should find indications that there are among them any born for queen bees, their aspirations for freedom should be encouraged, for otherwise they would be likely to become dangerous. These ideas may be somewhat visionary, but, that great inequality in the genius and talents of the race exists, none can doubt. Those who possess superior abilities are all needed in Liberia, and let them be helped thither. In Canada, they make an unwholesome population. The former part of this subject has addressed itself to the South; this last part we address to the North. The fortunes of war have thrown a large number of Southern slaves into the hands of the Government. What is to be done with them? Will not the President and Congress appoint commissioners to find for them that position which in all righteous dealing shall be decided to be for them the happiest and most useful? They could not be sent to Liberia unless by previous training they had become fitted to be good citizens there; otherwise, as was the case with the captured negroes already sent, their board and teaching must first be paid for. If the liberated slaves on the cultivated banks of Seneca lake could not, with all the appliances furnished them by their kind benefactors, make headway for themselves, surely the Government would not be so cruel as to

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set them free without any guardian care over them. If they do, the Northern States will soon be following the example of Illinois and others, and making cruel laws to keep out all Africans. What then remains but that you, my brethren and sisters, Christian patriots and philanthropists of the North, should be appealed to; that, regarding these contrabands, you, according to your ability and the situation of your families, each take one or two of them, perhaps a married pair, to your homes, and thus let us divide the responsibility which rests upon us, that they shall be cared for, and their children duly instructed; then in ten or fifteen years, for their improvement requires time, they will become fitted to go to Liberia, and will have earned from you the means; which of course the Government agents who would on this supposition have bound them to you, will see that you are under legal obligation to perform. But if in the mean time your contrabands, having it at their option to go, prefer staying with you, as your permanent, faithful, and attached servants, you to support them until death, we see no reason why in this case laws should not be made to sanction the arrangement; and if sound and able minds were employed to make the laws under which the African may, at the North, find his true position, not of slavery, for we repudiate the word and the thing, but of a regulated servitude to a guardian-master, or mistress, we see no reason why these might not thus find what they cannot depend on in their present system, the comfort and respectability of permanent and contented servants. The American of revolutionary descent is no one's servant but his own — and happy were those families where, in the simplicity of the olden time, the mother and daughters served themselves and their families. But increase of wealth, with the influx of foreigners, has changed these times, and now the unreliableness of domestic servants is the common complaint of Northern housekeepers — and not without reason. The foreigners, on whom we must rely, having in view ultimate independence, generally stay with us but a short season; and while they remain, how few of us are there who have been fortunate enough so to attach them to ourselves, that the interests of their own kindred will not be preferred to ours! And many a tenderlyeducated Northern woman, brought, by a wealthy and hospitable husband as a happy bride to a magnificent home, falls a sacrifice to the consequent want of permanent domestic arrangements. She finds

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herself at some unfortunate moment, when her house is filled with guests, with not a single servant. Her ambition to please her husband, and make his house acceptable to his friends, obliges her to tax herself to fill their several vacant offices. Nature, unused to the effort, revolts, and she either dies, or lives a miserable invalid. And if such a one should yet remain on earth, what could her wealthy husband, with his extensive accommodations, do so well as to take to his home some of these contrabands, who could be supervised and taught by a mistress, who would thus have been brought to appreciate and love them for their useful domestic virtues? American families who see that all which is here stated is true, might yet hesitate, fearing that European nobility might denounce them as having slaves to "fan them," &c. But our regulated system of colored servitude would be no more slavery than that service to which they constantly hold the hereditary servants of their own national blood; nor would you keep them at a greater distance, or more hold your families disgraced by intermarriages with servants than do they. Yet these English homes are regarded throughout the world as the abodes of comfort and elegant enjoyment; and this cannot be, except where there are permanent servants, knowing each their several places, and contented with their own condition. We do not wish to intermeddle with English servitude; neither do we desire their interference with ours. Their fathers, as allowed by Providence, forced the African race upon us; and their statecraft has long, for the bad purpose of dividing us because "the safety of Europe requires it," sought, and not vainly, to sow hatred and dissension among us; and now, regardless of all we must suffer, both North and South, fearing to lose the ultimate end of their efforts, their money, and their emissaries — the division of our Republic; now they talk of acknowledging the independence of the South, on the condition that the South shall set free their African domestics! thus introducing confusion and misery into their homes, and probably causing the ultimate destruction of the dependent race, whom they have long loved as their faithful and devoted servants. Daughters of the South! plead with your sons and husbands, and avert these horrors while yet you may. Turn not away from your kindred of the North, whose blood flows intermingled with yours in a thousand channels, and whose memories of past national glories must forever be identified with yours. Although you have hated

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them, it was because you have been deceived, and falsely persuaded that they wished to bring that ruin upon your homes which, it would seem, you are now preparing to bring upon them yourselves. Yet the North has never hated you. If she has waged war, she entered upon it against her will, because she had no other means to keep us all from worse than Mexican anarchy. Oh then relent, and no longer allow this cruel hatred to fill your hearts. Save your country! save yourselves — your families — and doom not to destruction that affectionate race, who, if we all treat them as we ought, and no longer injure them by our dissentions, may yet become more happy and more elevated in mind and character than ever before; and if placed and sustained in their TRUE POSITION, they may yet become an element of strength and increased civilization to a redeemed and renovated nation. EMMA WILLARD. BALTIMORE, May

23,

1862. NOTES

Note A. — There are, who believe that women should be made equal with men, in political rights; — and negroes with both. But would the sex have cause to thank these philanthropists, if, by giving them, during their lives, the fullest control of their property, and leaving to their husbands the duties of supporting them with their children, and paying their debts, they discountenanced marriage? Or, will the colored race have cause to thank them, if they should succeed in putting such conditions upon the whites as should prevent their voluntarily taking over them that parental guardianship which, to their improvident and affectionate natures, becomes the source both of their happiness and their usefulness? But if they are right, still the course we indicate is the best for the race which the times admit of; for, that the North should buy the negroes of the South, is not now feasible, whatever it may be hereafter; and this would therefore constitute the best practical measure of GRADUAL EMANCIPATION. Note B. — It may be recollected, that last winter I presented a memorial to Congress, pleading for peace, in the name of my sex. My original design was expressed in a memorial longer than that presented; and it brought forward the plan of settlement herein, much more fully developed. The following are extracts from the first, or larger, memorial, not presented: When we have become sufficiently humbled by the chastisement which God is now inflicting upon us, then shall we be ready to inquire for the EIGHT, — knowing that whatever is of RIGHT, is of GOD. In IT as in HIM, there is UNITY. Its path is straight, and if we can find it, all — North and South, East and West — may walk together in it. Every step towards it

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is a gain — to seek for Right in order to do it, is to draw near to God. Suppose His voice should now audibly inquire of all and of each, 'Are you willing to do right?' and there came from a chastened people the universal reply, Ί am;' and again should the voice divine inquire, 'Are you ready to be satisfied with others when they do right? and again there should come up a universal response, 'We are,' — then what would remain would be to agree on some method of finding out what the right in this case is, or of making the nearest possible approach to it; so that those who have the care of the colored race may do it; and which, they thus doing, all others in the Union are to be satisfied in heart, — to approve and to uphold. And this regardless of the sneers of foreign politicians, (who wish to divide us, so that our power as a nation may not become inconvenient to them,) and the more subtle influences of poetical flourishes, whether found in the Declaration of Independence, or in the beautiful works of Cowper, Campbell, and others. The abuses of negro servitude, we are no more obligated by these resolves to uphold, than we are bound to justify the tyranny of husbands because we defend the institution of marriage. The memorial then recommends a Board of Commissioners from the North and South, to act "as guardians of the colored race, and arbiters for the just and peaceful settlement of the Slavery question, on the foundation of right, to be done by the one party, and to be firmly and boldly upheld by the other." In the two things necessary to the accomplishment of an object — the will and the way — that which we here seek to create, is the will. Let that appear, and the genius of American jurists and statesmen would leap forth gladly to find the legal and expedient way: for this would be the glorious work of giving us once more a united country, increased in wisdom and strength.

Pamphlet 14

Anna Ella Carroll The Relation of the National Government to Revolted Citizens Defined. No Power in Congress to Emancipate Their Slaves or Confiscate Their Property Proved. The Constitution as It Is, the Only Hope of the Country. Washington, 1862 [In the border states, most Unionists as well as Confederate sympathizers were alarmed over pressure in Congress to confiscate rebel property and to emancipate slaves owned by Confederates. Anna Ella Carroll in May, 1862, penning what she regarded as a reply to Senator Charles Sumner, argued that Congress lacked constitutional power to interfere with Southern property either in land or slaves. She insisted years later that she had written the pamphlet at the request of President Lincoln; indeed, her views were similar to Lincoln's at the time. He did not favor the Confiscation Act of 1862, and although he signed it after Congress had eliminated provisions making it retroactive, he broke precedent by sending Congress his draft veto message. 1 Miss Carroll (1815-1893), daughter of a Jacksonian governor of Maryland, was by profession a political pamphleteer. In the 1850's she had written profusely for the KnowNothing party. In 1861 she wrote in defense of Lincoln and his border states policies; like him, she favored sending freed slaves to Latin America. Assistant Secretary of War Thomas Scott paid her $1,250 from his own pocket for one of her earlier pamphlets. In August, 1862, she saw Lincoln and asked him for $50,000 compensation so that she could circulate her pamphlets "among the millions." Lincoln retorted that her request was "the most outrageous one ever made to any government, upon earth." Several days later he mollified her by writing her that a new pamphlet was "just what is needed now and you were the one to do it." 2 She re1 [R. P. Basler, ed., The Collected. Works of Abraham Lincoln ( New Brunswick, New Jersey, 1 9 5 3 ) , V, 3 2 8 - 3 3 1 . ] 2 [Ibid., 3 8 1 - 3 8 2 ; Sydney Greenbie and M. B. Greenbie, Anna Ella Carroll and Abraham Lincoln, a Biography (Manchester, Maine, 1 9 5 2 ) , 3 5 1 - 3 5 4 . For an evaluation of Miss Carroll's claims, see William Baringer, "Anna Ella Carroll," in Notable American Women.]

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ceived $750 in 1863. For years after the Civil War she made large claims against the government for reimbursement for her pamphleteering and alleged contributions to war strategy.] CONGRESS has now under consideration, the question of the power and expediency of abolishing slavery, and confiscating the property, real and personal, of all, or a large class of the rebels in arms. A question of more transcendent importance, than any that ever before, engaged the attention of the American people. With an earnest desire that the country may not be led to the adoption of a mistaken and fatal policy, I propose now to contribute my best efforts to a further understanding of this vital subject. No one doubts the power or the duty of the Government to suppress the rebellion, to use the army and navy, and all the military resources of the country to capture the rebels, and kill them if they will not submit, and destroy their power to war upon us. But, I do not think there is any grant in the Constitution, but rather an express inhibition upon the power of Congress to abolish slavery or confiscate the property of rebels. There are two clauses in the Constitution which especially refer to the confiscation of property. The first defines the crime of treason, and authorizes Congress to prescribe the punishment; inhibiting, however, the confiscation of property beyond the life of the offender. The second is an absolute prohibition to Congress of confiscation altogether. The first defines the crime in these words: "Treason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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." "The Congress shall have 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 attained." Treason is not an offense against society, but an offense against its government; and in all ages, a disposition has been evinced on the part of the governing power, to construe everything as treason which opposed it. And this arises from the natural passion of revenge, the desire to punish for opposition to its authority, the rapacity common to all in possession of political power, and the desire to obtain the money or estate of the convict.

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Justice Story, in commenting on this clause of the Constitution, says: "The history of other countries abundantly proves, that one of the strong incentives to prosecute offenses as treason, has been the chance of sharing the plunder of the victims. Rapacity has been thus stimulated to exert itself in the service of the most corrupt tyranny; and tyranny has been thus furnished with new opportunities of indulging its malignity and revenge, of gratifying the envy of the rich and good, of increasing its means to reward favorites, and to secure retainers for the worst deeds." This feeling is so strong in all governments, that Montesquieu was so sensible of it, that he has not scrupled to declare, that if the crime of treason be indeterminate, that alone is sufficient to make any government degenerate into an arbitrary power. The history of England is full of melancholy instruction on this subject. Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, "that new fangled and artificial treason have been the great engines by which factions, the natural offspring of free government have usually wreaked their alternate malignity on each other." It was under the influence of these admonitions, furnished by history and human experience, that the convention deemed it necessary to interpose an impassable barrier against arbitrary construction, either by courts or by Congress, upon the crime of treason. Hence it was that the authors of our Constitution guarded the rights of the citizen by defining, specifically, in what the act of treason consists, and limiting the power of Congress in its punishment by absolutely inhibiting the confiscation of the estate of the traitor to the government, leaving it free to pass to his heirs. The second clause of the Constitution in reference to confiscation is: "No bill of attainder or ex post facto law shall be passed." Now, it is to me a matter of great surprise that any should doubt but that the bills before Congress are in direct conflict with this clause. These bills assume that certain parties have committed treason, and ought to be punished; but being beyond the jurisdiction of the United States, or in States where the civil authority has been expelled; they cannot be brought before the courts of the country for trial: therefore, Congress shall adjudge them guilty of treason, for-

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feit their slaves and entire estates, and proceed directly to execute this legislative decree by deeds of manumission to the slaves, and seizure and absolute forfeiture of all their estates, as a punishment for the crime, and as "indemnity for the past and security for the future." If the object had been to have drawn a bill of attainder directly in conflict with the Constitution, I do not think one could have been made more efficient or more operative than some of the bills which have been pressed before Congress. A "bill of attainder," as used in the Constitution, is a technical term, and we must therefore look to the common law and the concurrent history for the correct interpretation of its meaning. Woodison in his lectures says: "But, besides a regular enforcement of established laws, the annals of most countries record signal exertions of penal justice adapted to exigencies unprovided for in the criminal code. "Such acts of the supreme power are with us called bills of attainder, which are capital sentences, and bills of pains and penalties, which inflict a milder degree of punishment. "In these instances the legislature assumes judicial magistracy, weighing the enormity of the charge, and the proof adduced in support of it, and then deciding the political necessity and moral fitness of the punishment." Justice Story says : "Bills of attainder, as they are technically called, are special acts of the legislature as inflict capital punishment upon persons supposed to be guilty of high offenses, such as treason and felony, without any conviction in the ordinary courts of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. But, in the sense of the Constitution, it seems that bills of attainder include bills of pains and penalties, for the Supreme Court has said: "A bill of attainder may effect the life of an individual, or may confiscate his property, or both. In most cases the legislature assumes judicial magistracy, pronouncing against the guilt of the party, without any of the common forms and guards of trial, and satisfying itself with proof, when such proofs are within its reach, whether they were conformable to the rules of evidence or not. In short, in all such cases the legislature exercises the highest power of sovereignty, and what may be properly

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deemed an irresponsible despotic discretion, being governed solely by what is deemed political necessity or expediency." But the advocates of the policy of general confiscation, being unable to controvert this authoritative exposition of the term bill of attainder, assume the extraordinary position that the prohibition is not binding on Congress during a time of rebellion. I am unable to comprehend how any one can assume this position; for nothing is more certain than that this prohibition was inserted in the Constitution only to prevent the exercise of this arbitrary power during a rebellion. The authors of our Constitution never apprehended that Congress would assume to exercise judicial magistracy, except in time of rebellion. They knew well that there never was any motive in time of peace — and even if there were, that Congress would not attempt its exercise. For it is only in times of conflict between the public authority and the people that governments have ever attempted the exercise of this extraordinary and arbitrary power. Justice Story says, Bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the Crown, or of violent political excitement; periods in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample under foot the rights and liberties of others." . . . "Such acts have been often resorted to in foreign governments as a common engine of state, and even in England they have been pushed to the most extravagant extent in bad times, reaching as well to the absent and the dead as to the living. The injustice and iniquity of such acts in general constitute an irresistible argument against the existence of the power. In a free government it would be intolerable, and in the hands of a reigning faction it might be, and probably would be, abused to the ruin and death of the most virtuous citizen.

In support of the policy of confiscation, its advocates have searched universal history from the time "when Ahab took the vineyard of Naboth, and David gave away the goods of one of the confederates of Absalom," down to the most arbitrary acts of Napoleon. They have also cited the various penal enactments of the colonies, during the American revolution, in its justification. It was, unquestionably, these very acts of confiscation by the colonies which led to the clauses in the Constitution prohibiting it in Congress and the States.

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Story, in remarking on these acts of the colonies, says, in a note: "During the American revolution this power was used with a most unsparing hand, and it has been a matter of regret in succeeding times, however much it may have been applauded flagrantobello." Never were a people more jealous of liberty than our fathers were at the formation of the Constitution, and naturally so, too, as upon that Constitution depended the fruits of the independence which they had just achieved at the cost of so much treasure and blood. To guarantee this liberty, they provided in the Constitution for trial by jury in criminal cases — the definition and punishment of treason — the prohibition of bills of attainder, be., ire. But the people feared that these guarantees were not sufficient for the greatest protection of their liberties, and hence, the 4th, 5th and 6th amendments, restricting the exercise of these grants of power, in these words: "The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, nor shall any person be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation; the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State," &c., &c. Story, in his comments on the vital importance of these amendments, which he characterizes as a bill of rights, says: "It is not always possible to foresee the extent of the actual reach of certain powers, which are given in general terms. They may be construed to extend (and perhaps fairly) to certain classes of cases which did not, at first, appear to be within them. A bill of rights, then, operates as a guard upon any extravagant or undue extension of such powers. Besides, ( as has been justly remarked, ) a bill of rights is of real efficiency in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render more quick to detect and more resolute to resist attempts to disturb private rights. It requires more than ordinary hardihood and audacity of character to trample down principles which our ancestors consecrated with reverence, which we imbibed in our early education, which recommend themselves to the judgment of the world by their truth and simplicity, and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are a part of the

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muniments of freemen, showing their title to protection; and they become of increased value, when placed under the protection of an independent judiciary, instituted as the appropriate guardian of the public and private rights of the citizens." It is sad to witness senators and representatives in the great republic of the United States, in contempt of the warnings of history, drawing their principles and precedents from the most cruel and revengeful tyrants, and displaying a "hardihood and audacity of character in trampling down the principles which our ancestors have consecrated with reverence, which we imbibed in our early education, which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction." We are not permitted to doubt, but that these bills originate in the worst and most malignant passions of the human heart; and are pressed in utter contempt, of our constitutional guarantees. Listen to Senator Sumner's words, uttered on the 19th of the present month, in the country's Senate Chamber. With the provision in our Constitution, applicable to jury trials in criminal cases, it is obvious that throughout the whole rebel country there can be no conviction under such statutes. Proceedings would fail through the disagreement of the jury, while the efforts of counsel would make every case an occasion of irritation. For weal or woe the gallows is out of the question, it is not a possibility as a punishment for this rebellion. Nor would any considerable forfeiture or confiscation be sanctioned by a jury in the rebel country. . . . Surely we ought to take all proper steps to avoid such failure of justice. Strike down the leaders of the rebellion and lift up the slaves. But the tallest poppies must drop. For the conspirators who organized this great crime, and let slip the dogs of war, there can be no penalty too great. They should be not only punished to the extent of our power, but they should be stript of all means of influence, so that, should their lives be spared, they may be doomed to wear them out in poverty, if not in exile. To this end their property must be taken. . . . But the property of the leaders consists largely of land owned in extensive plantations. It is just that these should be broken up, so that they can never be again the nursery of conspiracy or disaffection. Partitioned into small estates they will afford homes to many who are now homeless, while their peculiar and overbearing social influence will be destroyed. Poor neighbors, who have been so long duped and victims, will become independent settlers of the soil. Brave soldiers who have left their northern

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skies to fight the battles of their country, resting at last from their victories, and changing their swords into ploughshares, will fill the land with northern industry, and northern principles.3

Here is a distinct proposition to set aside the most sacred guarantees of the Constitution, to uproot the social system of one-half of the American Union, numbering in the aggregate some twelve millions of souls; and to partition their land to the poor and to the slaves, and to the soldiers of the other half of the Union; and to fill the South with a foreign industry and foreign principles!! I cannot recall to memory any instance surpassing the atrocity of this proposition, in all the annals of despotism. But the advocates of confiscation by Congress feel it obligatory upon them to find some support in the Constitution for the exercise of this power. Senator Howard, in his argument, assumes, that the power "to declare war, to make rules concerning captures on land and water, to raise and support armies, to provide for calling forth the militia, to suppress insurrection and repel invasion," does by implication give this right, and he claims it as a war-measure. He says, "if Congress has not the power to confiscate the property of the enemy as a punishment, and as an indemnity for the cost of the war, that the American people have thrown away, for all time to come, the most efficient means of crippling and humbling the enemy." This theory of Senator Howard has been adopted, I believe, by all who have spoken on this side of the question, whose speeches I have examined. The argument is this: Because Congress has the authority to confiscate the property of a subject of a foreign State in time of war, and vest it in the United States, therefore Congress has the authority to confiscate the property of a citizen of the United States in time of civil war and vest it in the government of the United States. This, I apprehend, proceeds from a total misconception of the true nature of the Constitution and the principles of international law. The right to punish an enemy and hold his property responsible for damages, is inherent in all nations, but how this right shall be exercised, depends upon the peculiar structure of their government. 3

Congressional Globe, 37 Cong., 2 sess., 2196.

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In ours, the right to punish a foreign enemy and hold his property liable for damages, is vested by the Constitution in Congress as the supreme legislative power of the nation. But the right to punish a domestic enemy and hold his property liable for damages, is exclusively vested in the Executive and Judiciary Departments. "In a state of equality" says Rutherforth, "after an injury is committed, any who have suffered any damage by it are at liberty to make themselves amends at their own discretion, and by their own force. They are at liberty to take so much of the offender's goods as is equal in value to what they have lost, and the law of nature will give them property in the goods so taken. "But in a state of civil society, if both the offender and the sufferers are under the protection of the same society their right of obtaining reparation is restrained and becomes subject to the civil jurisdiction." Absolute governments may punish their subjects by the direct exercise of the sovereign power, but no government can do this which claims to be free. For the punishment of crime the Constitution provides civil tribunals, and has provided a civil force to bring the offender before its judgment bar, and if this civil force be insufficient, by reason of the strength of the offender, then there is a military force provided to bring all offenders, not collectively or by States, but individually, before the courts of the land, and there they can be deprived of their property, their liberty, or their life! Surely no one will contend that the grants of power in the Constitution authorizing Congress "to declare war, to grant letters of marque and reprisals," &c., confers on Congress the authority to declare war against any State of this Union, or any number of citizens of any State, or to authorize any citizen of this Union to make reprisals upon another citizen. We are left in no doubt upon this subject, for when the proposition for authorizing the exercise of the military force of the General Government against a delinquent State was being considered, Mr. Madison opposed it, saying "that it looked too much like the power to declare war, and would probably be considered by the party against whom it was used as a dissolution of the compact." He moved the postponement of this question, which was unanimously agreed to, and was never again brought before the Convention. Could Congress use this power, and declare war against any State

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or any citizen of the Union: Could it grant letters of marque and reprisal to war upon the citizens, one against another: Then, truly, as was forcibly expressed by a Senator, if this be our political system, it is not worth much — surely it is not worth the cost of a terrible war. Before Congress can claim to exercise this power of war over any portion of the American people, it must first recognize the rebellion as a success — their revolution accomplished, and the Union dissolved. In short, must concede to the rebellion — what no European power has ventured to do — that they have achieved their independence, and have established a firm and stable government, against which it is no longer proper to war with the view of suppressing it. For Congress to take that position, and treat the rebellion as a foreign nation, and continue the war from malice or vengeance, is to become allies of the rebellion, and ourselves traitors, like them, to the Constitution. Fortunately, however, for civil liberty, the Constitution confers ample powers upon the Government for its own preservation and just defense against all combinations of domestic foes. While the Constitution withholds from Congress all power to declare war against any member of the Union, that instrument confers on Congress ample authority to provide and maintain a military force, and upon the President ample authority to use that force in the defense of the nation, by the suppression of insurrection or rebellion, whenever the civil force is not sufficient for that end. War may exist between the General Government and a portion of the American people, but, under the Constitution, it never did and never can exist, except by armed resistance to its authority. Citizens may "commit treason against the United States, in levying war against them" and thus (as in the present instance) involve the country in all the horrors of civil war. But they do not, therefore, become enemies in the sense of the law of nations, they are still citizens of the United States, and owe allegiance to this Government, and are liable to punishment for their crimes; and they cannot escape from their allegiance or their liability for punishment due their crimes, unless they flee from the country of their birth, never again to look upon its flag! For, if Congress is true to the Constitution, they never can estab-

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lish within the limits of the United States, a government to protect and shield them. If we will but comprehend the reason of the rule in the laws of nations, why one nation has the right to hold the persons and property of another responsible, for the injuries inflicted by his government, I think it will be conceded that the rule has no application to a rebel, in a civil war. Writers on general jurisprudence have considered nations as independent moral persons living in a state of nature, where there is no common tribunal to settle controversies with other nations but that of force. When an injury is inflicted upon one nation by another, and reparation is withheld, there is no way to recover it except by war; because independent nations, from the very nature of things, are not subject to the civil tribunals of any other nation. A nation is no otherwise responsible than through her people. There is no means of recovering reparation except by holding them and their property, public and private, responsible to the offended nation. These constitute not only the wealth of a nation, but are the nation itself. As a nation consists of an aggregate of individuals, the property of the nation is the property of all its individual members, and as a consequence a claim to indemnification for injuries sustained by a foreign State may be satisfied by a seizure of the property of any of the individual members of that State. That by the law of nations the whole property of the individual members of a State is responsible for the debts or obligations of the State or of the sovereign. A nation has a complete right by the law of nature to take possession of the property of an enemy as far as the purpose of equitable satisfaction, or the necessities of just warfare require, so as to obtain in the well known phrase, "indemnity for the past, and security for the future."

As Rutherforth states, with more clearness than any other writer, the principle of this rule in the law of nations, I will cite him fully on this point. But we acquire no right, corporeal or incorporeal, by the mere act of war, and it is a settled principle in the law of nations that without some natural or antecedent right the mere taking of a thing by war is no right at all. . . . In a war which is internally just, as a nation may take the person, so, likewise it may seize upon the goods of the enemies, either movable or immovable, as far as such seizure is a necessary means to bring them to do what is right;

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but what is seized only for this purpose does not become the property of the captors; the possession is just till the purpose for which the goods were taken is answered. But as soon as the claims of the injured nation are satisfied, the justice of the possession is at an end. . . . The surest way of trying whether it is the claim of war or the claim of a tacit consent, in concluding a peace which gives us property in all such goods as are taken in war, is to inquire what sort of right we have to them before peace is concluded. There is no law of nations which forbids our enemies to continue a war when no other cause of dispute remains besides our detention of such goods as we have taken in the war beyond the equivalent for damage and expenses. As the law of nature will allow this to be a just cause for continuing a war, so there is no practice of nations and no general opinion of mankind that determines otherwise. But, if any law of nations had given us property in such goods, the same law must necessarily condemn the adverse nation for continuing a war merely because we would not give them up; for the design of such a war would be to take from us what the law of nations had made our own. This opinion that all goods which are taken in war are not strictly our own by any law of nations till peace is concluded; that is, till some consent, either express or tacit, has made them our own by the law of nature, seems to be the general opinion of mankind in respect to immovable goods, such as fortified towns or provinces which have been overrun in war. The captors are looked upon, while the war lasts, to be only in possession of them; and though this possession may help them to make a better bargain for themselves in a treaty of peace than they could do otherwise, yet the property which they have in things of this sort is deemed to be precarious until a treaty of peace has ascertained and established it. It is usual in treaties of peace to mention such immovable goods particularly, and the captors, if they acquire property in them, acquire it by express consent. We may therefore reasonably conclude that the property which the captors have in all movable goods taken in war is likewise acquired in the same manner. The only difference is, that immovable goods, which are generally the most important, are in the hands of the public, and can readily be returned, whilst movable goods are of less consequence, are in private hands, and, because they have either been consumed or have not been kept together, cannot be returned so readily. For this reason, whilst the property in the former is adjusted by express consent the property in the latter is left to pass from the original owners to the captors by tacit consent.

Hence, we perceive that this right gives to the captor only the possession and use of the property of an alien enemy during war; but the title does not pass, except by the consent of the nation to which the property belongs.

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This consent is presumed in favor of movable goods, on account of their perishable nature, and the difficulty of identifying them. But this rule cannot be applied to rebels, in a civil war, and for obvious reasons. Because, if the "rebels in arms" have not, in fact, dismembered the Union and formed an independent sovereignty, they are to-day citizens of the United States, and their property is a part of its eminent domain; therefore, no law of war can confer upon the United States a higher claim to their property than it now has, by the Constitution. To transfer the property from the citizens to the coffers of the Government would not increase the national wealth; it would add nothing to the national resources to take that which is already ours. But, concede that the rebels have displaced the national sovereignty, and become a foreign nation, then, upon a re-conquest of that territory, our Government would enter upon their rights of sovereignty; take possession of their national domain and national revenues; seize and detain their citizens as prisoners, and their property, to compel them to do what is right. But, if we destroy that rebel power altogether, and retain the territory, our claim to indemnity for the past and security for the future is satisfied. Vattel says: The conqueror, who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. But if the entire State be conquered; if the nation be subdued; . . . if the conqueror thinks proper to retain the sovereignty of the conquered State, and has a right to retain it, . . . reason plainly evinces that he acquires no other rights, by his conquest, than such as belonged to the sovereign whom he has dispossessed; and, on the submission of the people, he is bound to govern them according to the laws of the State.

Chancellor Kent says: "It is a settled principle in the law and usage of nations, that the inhabitants of a conquered country change their allegiance, and their relations to their former sovereign is dissolved, but their relations to each other, and their rights of property, not taken from them by orders of the conqueror, remain undisturbed."

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And he cites the Supreme Court as deciding that "the laws, usages, and municipal regulations, in force at the time of the conquest or cession, remain in force until changed by the new sovereign." It follows, therefore, that the rebel territory, with the rights of persons and of property not destroyed by the struggle, fall at once under the protection of the Constitution and municipal laws. We have had in our history but two occasions to exercise this right against foreign nations. In our war with Mexico, in which we sent our armies to her capital, for the purpose of obtaining indemnity. There, we respected private rights, and abstained from the seizure of private property; and being unable otherwise to obtain indemnity, we took, by conquest, a portion of her territory, paying her, in money, for the excess over and above the amount of our claim for indemnity. Now, had a proposition been made in Congress to confiscate the property of the people of the conquered territory, for the acts of the Mexican government, its repugnance to the law of nations would have shocked the moral sense, even of the Congress of that day. The first act which broke their allegiance to the Mexican government and transferred it to the United States, did, in the judgment of all publicists, bar all claim on them for the acts of their former government. But, in one respect, this civil war does resemble a war with a foreign nation. The insurgents have subjugated some eleven States of the Union, and have expelled all National and State authority, and have enforced acquiescence and qualified allegiance to their arms and revolutionary government. This calls for the exercise of new duties, new, I mean, from the fact that there was never before any necessity on the part of our Government for their exercise. But, though they are new, we cannot mistake our way if we will only consider the nature of this civil strife, and how far the relations of the citizen is affected while the national authority remains displaced by the rebel force. On this point Senator Sumner cites from Grotius: "The first and most necessary partition of war is this, that war is private, public, and mixed. Public war is that which is carried on under the authority of him who has jurisdiction. Private, that which is not so. Mixed, that which is public on one side and private on the other."

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And he says, "In these few words of this great authority, will be found that very discrimination which enters into the present discussion. The war in which we are now engaged . . . . is 'mixed,' that is, public on one side and private on the other. On the side of the United States it is under the authority of the Government, and is therefore 'public;' on the other side it is without the sanction of any recognized government, and is therefore 'private.' In other words, the Government of the United States may claim for itself all belligerent rights, while it may refuse them to the other side." This is a false inference from the misapplied principle of Grotius. Rutherforth, the recognized expositor of Grotius, in commenting upon this very passage in its application to civil war, says: If any one should ask whether these internal wars of a civil society are public or private, or mixed, we must certainly answer that in the language of the law of nations they are neither. For since this law takes no notice of what passes within a civil society, as far as what passes there has no reference to the rest of mankind, it has no occasion to mention wars of this sort, and therefore gives them no name. It does not so much as call them wars, and much less does it rank them under the head of public, or private, or mixed. . . . The law of nations does not call them wars, not because they are not wars, but because they are such acts as do not come within its view, and as it has therefore given no name to. They have certainly the nature of war, for they are contentions by force. Common usage likewise has given them this name, and calls them civil wars. And, if we attend to the nature of the act, we shall find that civil wars may be either public, mixed, or private. A civil war . . . may be called a public one, when the heads of each party are respectively considered, by their own people, as public persons. A rebellion may be called a mixed war, when one of the parties is under the conduct of a public person, and the other consists of private persons: It may be called a private one, when there is no subjection on either side.

According to this very principle of Grotius, a civil strife partakes of the nature of a public war, whenever it is carried on against the Government by an organized force, acting through regular constituted authorities, regarded and accepted by the rebels as public persons. It is then a contest between the lawful government on one side, and an unlawful, but de facto, government on the other. Now to claim that this rebellion is "private" on their side because their government is not a "recognized government," shows a most

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singular confusion of principles in the mind of the Senator. For were their government "recognized," it would then cease to be a civil war at all, and would become a public war between two foreign nations. From the very nature of things the claim to exercise a right is founded upon a corresponding obligation. Our Government cannot claim belligerent rights without conceding the existence of a power (call it what you may) that is under an obligation to yield them; and an obligation to yield implies a corresponding obligation on the other side. While a rebellion remains within bounds, manageable by the civil force, or by the military force acting in aid of the civil authority, there is no claim to exercise or duty to yield belligerent rights; and the relation of no one to his government, in the theater of the rebellion, is affected in any way. But when a rebellion attains to such proportions as actually displaces all civil authority, and subjects a portion of the territory to its dominion, the relations are purely belligerent, and must remain belligerent, until the civil authority is restored. For there can be no civil relations without authority to protect the citizen; our Government can hold none whatever with the people of the subjugated States until the rebellion is suppressed, and its authority re-established. The fact that these rebels possess the military power competent to displace, and have actually displaced, all civil authority, elevates their struggle to the dignity of war. It calls for the exertion by the Government of its military power, and it must deal with this strife for the present only with this military force. Martial law may be applied to all the sections of country where the rebellion has displaced the civil authority, and every citizen of the United States may be subjected to martial law; their property may be seized and used by the military power, if the public safety shall require it. But private property of the rebels, which may thus be captured, is not, by any law of nations, nor cannot be, by any act of Congress, vested in the United States, unless upon the recognition of their independence as a nation. For, by the rights of postliminium, upon the destruction of the rebel power, every person is restored to his former rights, and every thing that has not passed beyond the jurisdiction of the United States, which can be found and identified, returns to its former state, under the Constitution.

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"The right of postliminium," says Vattel, "is that in virtue of which persons and things, taken by the enemy, are restored to their former state, on coming again into the power of the nation to which they belonged. "The sovereign is bound to protect the persons and property of his subjects, and to defend them against the enemy. When, therefore, a subject, or any part of his property, has fallen into the enemy's possession, should any fortunate event bring them again into the sovereign's power, it is undoubtedly his duty to restore them to their former condition, to re-establish the persons in all their rights and obligations, to give back the eifects to the owners: in a word, to replace every thing on the same footing on which it stood previous to the enemy's capture. "Among the Romans, indeed, slaves were not treated like other movable property; they, by the rights of postliminium, were restored to their masters, even when the rest of the booty was detained. The reason of this is evident, for it was always easy to recognize a slave and ascertain to whom he belonged."

The rights of postliminium are not under the cognizance of the law of nations. Manning, in speaking of the usages of different nations, says: "Thus it will be seen that no general rule obtains regarding postliminium; different States have different regulations on this subject; and, as it is a question which concerns members of the same State rather than subjects of different States, its details belong to municipal law rather than the law of nations." When, therefore, a rebel is brought again, either by force, or by his own volition, under the power of the United States, the Government is, by the Constitution, bound to re-establish him in all his rights and obligations, and, upon his submission to its authority, give back to him his property. It is too clear for argument that, during the military occupation of any town, district, or State of the Union, by an invading force of a foreign nation, Congress would have no authority to confiscate the property of any American citizen, inhabitant of that town, district, or State. And should the citizens, no matter from what motive, whether from instinct of self-preservation, or from disloyalty, join the invading force, and fight in its ranks against their country, they do not thereby become public enemies — they do not forfeit their allegiance to the country — they cannot defeat the country's claim to punish them according to the laws of the land. They cannot plead upon the trial for giving aid and comfort to the enemy, that they were traitors, and fought willingly against their flag, though they

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may plead, and plead successfully, that the temporary inability of the Government to protect them against the superior hostile force, constrained their temporary submission. True, the military generals of our country cannot distinguish the nationality of the enemy in arms, but will capture or kill all alike, until they surrender to the authority of the Government, or flee beyond its frontiers. But the legislative power must distinguish a nationality, must recognize the American citizen, must recognize his constitutional rights to protection, and his liability to punishment for crime. While it may hold the nation, to which this foreign force belongs, responsible for indemnity and security, and may look to every citizen or subject owing allegiance to this power, it cannot look to its own citizens, nor confiscate their property, nor hold them as hostages, in order to constrain a foreign government to make compensation for wrongs inflicted. The same rules which apply to any portion of the citizens of the United States, which may be subjugated by an invading force, applies now to the citizens of the Southern States who are subjugated by the rebel force. The duty of allegiance and protection are reciprocal; therefore, when a State loses the power to protect any portion of its territory and inhabitants, by reason of the superior force of a hostile power, the people so reduced necessarily must yield obedience to the de facto government. Their property and persons are claimed by the conqueror, but their allegiance is not severed from their government, unless the conquest is confirmed by the consent of the conquered. Castine, in the State of Maine, was captured and held by the British forces in September, 1814, and continued in their exclusive possession until the treaty of peace in 1815. The Supreme Court decided that the sovereignty of the United States was suspended, and that the inhabitants passed under a temporary allegiance to the British Government. The Territory of Michigan was surrendered to the British Government by Gen. Hull, on the 16th of August, 1812, and continued in its possession until September 30th, 1813. During this time, the American laws were continued in force, and the civil officers who remained in the territory were continued in office. Judge Witherill,

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and other officers of the territory, were paid their full salaries during the period of the British occupation. The citizens and civil officers of Michigan who remained and submitted to British authority, were not regarded by our Government as enemies; but that was before the discovery of the theory of political felo de se. Now, when a revolted people have actually expelled their lawful government, and, in its stead, established a de facto one, the condition of the citizens is precisely the same as in the case of a lawful government expelled by a foreign force. Therefore, while a government is unable to afford protection to its citizens, it cannot hold them responsible for any act they may commit while under the pressure of a usurping power. What, now, are the facts in reference to this Southern rebellion? Have not the rebels expelled every vestige of authority, both of the States and the United States, and established over that territory their revolutionary government? Have they not gibbeted, imprisoned in dungeons, or driven into exile, all who would not submit to their despotism? For more than twelve months the Government of the United States has been unable to extend to these people the protection of its authority; no flag has been seen there, no emblem of authority on the part of the United States to protect and shield them. To punish these people for acts committed while under the dominion of this hostile force, and while the government of the United States was unable to protect them, would be a flagrant violation of every principle of natural and political law. It would place the authors and executioners of the injustice upon the scroll which bears to infamy the name of Jeffreys, the judicial murderer under Charles the Second. No, no! what the United States may rightfully do is this: The President, upon the re-establishment of the civil jurisdiction, may bring to trial and condign punishment the authors and instigators of this rebellion. If the law against treason is not deemed sufficiently just, in view of the enormity of their crime, Congress may provide the punishment for all who do not lay down their arms so soon as they can receive the protection of their Government. It may exclude them forever from all offices of honor or emolument; it may fine, imprison, or execute them; in short, it may declare any punishment,

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provided it works no corruption of blood or forfeiture beyond the life of the traitor. Having established that the responsibility of the people of the subjugated States to the General Government depends upon its power to extend protection over them, I now propose to inquire what are the relations of the General Government to the people where the rebels have been subdued, but yet before the civil authority has been re-established? a question, perhaps, of more importance than any which has ever engaged the attention of the American people. We have effectually overcome the rebellion in some of the States, and in many cities and districts of other States, and it is evident that within a short time, if Congress will but stop its career of violence against the Constitution, we will have overcome it in all the States. It is not probable that the people will return within a short time to their allegiance, or that the Government will be able to extend the civil authority over the whole of that territory. It will be the work of time. A large class of these people have become thoroughly alienated from the Government, whether by the efforts of demagogues, or from whatever cause. A large class still love the Union, and cling to the precious memories of its past history; who honestly believe it is dissolved, and never can be restored. Then there is another class who, shocked by the terrible power of the rebellion, have lost all hope and confidence in the power of republican institutions. If Congress will but abstain from all interference, there is no doubt about the ability of the President and his patriotic army to suppress the rebellion in every part of the territory. But the difficulties are in restoring peace to this distracted country after the rebel armies are overthrown. This requires the exercise of the highest and noblest qualities of statesmen. I would have Congress make no mistake here. I would have them inaugurate no policy of doubtful constitutionality. Peace can only be restored to the country by extending to the people the shield of the Constitution. The union of these States cannot be restored under a mutilated Constitution, or under a new or different one. Now, until the protection of the Constitution is extended over the

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subjugated States, and the civil authority is re-established, the relations of the people to the Government must necessarily remain purely military. That is, martial law is the only law the Government can apply, in the absence of civil authority. The right to apply martial law to the citizens of the United States, and subject them to military government is conferred by the clause of the Constitution authorizing the suspension of the privilege of the writ of habeas corpus. There are several instances in which this power has been exercised in the history of this Government, and it was first used under the administration of President Washington, during what was called the whisky insurrection. It was used by Gen. Wilkinson at the time of Burr's conspiracy, and by Gen. Jackson in the war of 1812. Gen. Scott applied martial law by military government in Mexico during our war with that country. But within the United States the public safety never required the application of martial law to whole communities of citizens until the present rebellion. The establishment of a military government in the States of Tennessee and North Carolina indicates the President's policy for the restoration of the subjugated States to their rights in the Union, and is, as I believe, the only policy which can by any possibility effect it. A military government, when established over a territory, holds the whole population, as it were, prisoners of war, subject to the rules of war. Its operations are confined to military questions, and subjects all civil relations to its supervision and control; though, in fact, it exercises no civil authority, and Congress can confer upon it none, as its very existence depends upon the absence of civil authority. It may exercise over the people of a district who are subjected to its authority, all the rights which military commanders may exercise over their prisoners, according to the rules of modern warfare. It may provide for their rigorous imprisonment, or it may parole them. It may exercise the extreme rights of the code of war over the life, liberty, and property of every citizen who revolts against its authority.

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But it has no right to take the life or confiscate the property of the people who have submitted to its authority, any more than a commander has to murder or plunder his prisoners, and Congress can confer upon it none. For Congress has no more power to interfere with the conduct of a military governor than it has to interfere with the ordinary operations of the army before an enemy. It is not for Congress to pursue our generals in the field, and say where to plant this battery, or what house shall be battered down, what field ploughed up by cannon, what cities shall be burned, or what country shall be laid waste. The direction of the operations of war belongs not to the legislative department; the Constitution has vested it exclusively in the President as Commander-in-Chief. It is only for Congress to raise and support an army sufficient for the suppression of the rebellion. It is the President's duty to command and direct it. And this military force, directed by the President, may employ every means known to civilized warfare. It may subject all persons to martial law, "when the public safety may require it," and seize all property, within the field of its operations, to annoy, to weaken or destroy the rebellion. And this without a regard to the ownership of the property, whether friend or foe, and leave to the political power to settle with the claimants, according to their respective rights UNDEB LAW. This is a fearful power, but without which no government can live, and, unfortunately, by it most free countries have been destroyed. The authors of our Constitution understood this much better than the men in this day. They placed this power exclusively under the control of the President. The danger of confiding the military power exclusively to his hands, was fully considered by them. They guarded against the abuse by vesting in Congress the exclusive authority to raise and support this military force; and they guarded against the abuse of Congress by withholding from it the authority to make appropriations for a longer period than two years. Senator Howard asks: Have the people of the United States stript themselves of all power to control the operation of the wars in which they may be involved?

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Is nothing left to their representatives but to furnish the men, the material, and the money, and are their orders as to the mode in which and the purposes for which these shall be used totally powerless and void? And does the Constitution subject to the will of the President exclusively the use of the military force in all the details of the service?

These very objections were urged by the opponents of the Constitution in the State conventions which adopted it. Justice Story, in his commentaries upon this power of the President, says: Of all the cases and concerns of Government the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision are indispensable to success, and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him in the exercise of such power enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion must mingle in all such councils, and infuse a torpor and sluggishness destructive of all military operations.

But the Senator takes another and a bolder step. He says: "The President is our general and bound to execute our behests, subject to the will of Congress, and liable for disobedience to be reduced at once to the condition of a private citizen and incapacitated to hold any office of honor or emolument under the Government." The absolute supremacy of Congress is avowed by another Senator, in these words: "There is no limit over the power of Congress, it is supreme, and the ordinary provisions of the Constitution must yield as resolved by Congress." I do not charge that there is a conspiracy in Congress to grasp the sword and overthrow republican institutions, and establish upon its ruins a legislative despotism. But certain it is, that unless this claim is rebuked by the country, it will end in one. For, if Congress can exercise this power during war, the war will never end, except with the destruction of liberty. Grant the power during war, and Congress will continue the war for the sake of the power. For the annals of the world record no instances where the usurpers of power have ever, voluntarily, laid it down. When Congress emancipates the slaves and confiscates the estates of the proprietors, and portions them to the poor and the slaves, in

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order to fill the South with "northern industry and northern principles," it will continue the war in order to enforce its enactments. Senator Sumner will not have Congress "fasten upon itself, the restraints of the Constitution." He will not have it "repeat the ancient tyranny which compelled its victims to fight in chains." Unless wiser counsels shall prevail, or unless restrained by the President, Congress, "unchained by the Constitution," will move its armies swiftly over the liberties of the country, both South and North. Our legislators who would disregard the constitutional guarantees of liberty may learn a lesson of Frederick the Great, who desired to remove a wind mill which stood before the center window of his favorite palace at Pozdam, but could not induce the miller to sell it. The King, irritated, threatened the owner, to force him to consent. "There is a Supreme Court in Berlin," answered the miller. The King was silent, and the mill stands to this day, an annoyance to the palace, but one of the best monuments which an absolute monarch ever erected to himself. The authors of our Constitution, witnessing the slavery of every people in every age, by the union of all powers, legislative, executive, and judicial in one body, and with a consummate knowledge of the philosophy of government, distributed its powers into three departments — legislative, executive, and judicial — defining the respective spheres of each with such precision that it is impossible to misunderstand it. Despotism is inevitable wherever power is lodged in a single body, whether in one or in many; whether in a single executive or a numerous legislative body. That "we, the people of the United States," do not exert our power directly, but by representative bodies, severally restricted, by a written Constitution to certain specific duties, constitutes the peculiar merit of our form of government, and its successful working, hitherto, has been the proud boast of Americans, as their contribution to the science of free government, the first and only one, ever known in the history of the world. Shall it be the last? The last of all the ages, the last of all the lands? And shall our Union, rent by factions, after all, pass away — pass like a star that sets to rise no more, no more, forever?

Pamphlet 1 5 Charles Janeway Stille How a Free People Conduct a Long War: A Chapter from English History. Philadelphia, 1862 [In the depressing aftermath of the fiasco of the Peninsula Campaign of 1862, Charles Janeway Stille sought to counter the clamor against the Lincoln administration. He drew encouraging parallels with the sevenyear struggle of the British against Napoleon in their Peninsular War. He was particularly concerned with the volatile nature of public opinion in such nations as the United States and Great Britain — overenthusiastic at the beginning of a war, certain of spectacular victory, then overpessimistic when adversity instead ensued. From the British experience he concluded that "in the support of public opinion, and in the means requisite to maintain a great army, those fundamental essentials of real military success, our Government is immeasurably stronger than the English ever was at any period of the war." His pamphlet, intended to influence public opinion, contained interesting observations upon its nature: "There is such a thing as public opinion falsely so called, which is noisy just in proportion as its real influence is narrow and restricted. One of the most difficult and delicate tasks of the statesman is to distinguish the true from this false opinion, the factious demagogue from the grumbling but sincere patriot." Stillé's pamphlet was circulated by the United States Sanitary Commission, of which Stille was corresponding secretary, and in 1863 by the Union League of Philadelphia and the Loyal Publication Society of New York. One historian thinks it was possibly the most widely circulated of the pro-Union pamphlets, and that as many as a half million copies of it were published. 1 Stille (1819-1899), a Philadelphia patrician educated at Yale and admitted to the bar, devoted himself to his two avocations, history and literature. He had spent much time in England and subscribed to a Burkean view of social and political institutions. His eulogy to a friend set forth his own views: "He was guided by a sentiment far deeper and more enduring than a vague sentiment of philanthropy, and that was, obedience to duty divinely commanded." After the Civil War he became 1

[Fredrickson, The Inner Civil War, 141-143.]

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professor of English Literature and Belles Lettres at the University of Pennsylvania, and served twelve years as provost. After retiring he wrote several volumes of history and biography.2] WE have known hitherto in this country so little of the actual realities of war on a grand scale, that many are beginning to look upon the violent opposition to the government, and the slowness of the progress of our arms, as signs of hopeless discouragement. History, however, shows us that these are the inevitable incidents of all wars waged by a free people. This might be abundantly illustrated by many remarkable events in English history, from the days of the Great Rebellion down through the campaigns of the Prince of Orange, and of Marlborough, to the wars which grew out of the events of the French Revolution. War is always entered upon amidst a vast deal of popular enthusiasm, which is utterly unreasoning. It is the universal voice of history, that such enthusiasm is wholly unreliable in supporting the prolonged and manifold burdens which are inseparable from every war waged on an extensive scale, and for a long period. The popular idea of war is a speedy and decisive victory, and an immediate occupation of the enemy's capital, followed by a treaty of peace by which the objects of the war are permanently secured. Nothing is revealed to the excited passions of the multitude, but dazzling visions of national glory, purchased by small privations, and the early and complete subjugation of their enemies. It is, therefore, not unnatural that at the first reverse they should yield at once to an unmanly depression, and, giving up all for lost, they should vent upon the government for its conduct of the war, and upon the army and its generals for their failure to make their dreams of victory realities, an abuse as unreasoning as was their original enthusiasm. Experience has taught the English people that the progress of a war never fulfils the popular expectations; that although victory may be assured at last to patient and untiring vigor and energy in its prosecution, yet during the continuance of a long war there can be no well-founded hope of a uniform and constant series of brilliant triumphs in the field, illustrating the profound wisdom of the policy of the Cabinet; that, on the contrary, all war, even that which is 2 [William Q. Maxwell, Lincoln's Fifth Wheel; the Political History of the States Sanitary Commission ( N e w York, 1 9 5 6 ) , 2 0 0 - 2 0 1 , 3 4 5 . ]

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most successful in the end, consists rather in checkered fortunes, of alternations of victory and disaster, and that its conduct is generally marked by what were evidently, when viewed in the light of experience, blunders so glaring in the policy adopted by the government, or in the strategy of its generals, that the wonder is success was achieved at all. The English have thus been taught that the true characteristic of public opinion in its judgment of a war should be, not so much hopefulness or impatience of immediate results, but rather a stern endurance — that King-quality of heroic constancy which, rooted deep in a profound conviction of the justice of the cause, supports a lofty public spirit equally well in the midst of temporary disaster and in the hour of assured triumph. We have had no such experience here. Our people are perhaps more easily excited by success, and more readily depressed by reverses, than the English, and it is, therefore, worth while to consider how they carried on war on a large scale and for a protracted period. It will be found, if we mistake not, that the denunciations of the government, so common among us of late, and the complaints of the inactivity of the army, have their exact counterpart in the history of the progress of all the wars in which England has been engaged since the days of the Great Rebellion. He who draws consolation from the lessons of the past, will not, we think, seek comfort in vain when he discovers that in all those wars in which the government and the army have been so bitterly assailed (except that of the American Revolution), England has at last been triumphant. It is worth while then to look into English history to understand how war is successfully carried on notwithstanding the obstacles which, owing to a perverted public opinion, exist within the nation itself. These difficulties, although they inhere in the very nature of a free government, often prove, as we shall see, more fruitful of embarrassment to the favorable prosecution of a war than the active operations of the enemy. We propose to illustrate the propositions which we have advanced by a study of the series of campaigns known in English history as the Peninsular War. We select this particular war because we think that in many of its events and in the policy which sustained it, there are to be observed many important, almost startling, parallelisms with our present struggle. We have, of course, no reference to any similarity existing in the principle which produced the

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two wars, but rather to the striking resemblance in the modes adopted by the two people for prosecuting war on a grand scale, and for the vindication of a principle regarded as of vital importance by them. The Peninsular War on the part of England, as was contended by the ministry during its progress, and as is now universally recognized, was a struggle not only to maintain her commercial supremacy ( which was then, as it is now, her life ), but also to protect her own soil from invasion by the French, by transferring the scene of conflict to distant Spain. The general purpose of assisting the alliance against Napoleon seems always to have been a subordinate motive. It is now admitted by all historians, that upon success in this war depended not only England's rank among nations, but her very existence as an independent people. The war was carried on for more than five years, and on a scale, so far as the number of men and the extent of the military operations are concerned, until then wholly unattempted by England in her European wars. The result, as it need not be said, was not only to crown the British arms with the most brilliant and undying lustre, but also to retain permanently in their places the party whose only title to public favor was that they had carried on the war against the most serious obstacles and brought it to a successful termination. Thus was delayed, it may be remarked, in passing, for at least twenty years, the adoption of those measures of reform which at last gave to England that place in modern civilization which had long since been reached by most of the nations of the Continent by passing through the trials of a bloody revolution. If we, then, in our dark hours, are inclined to doubt and despondency as to the final result, let us not forget the ordeal through which England successfully passed. We shall find that, in the commencement, there was the same wild and unreasoning enthusiasm with which we are familiar; the same bitter abuse and denunciation of the government at the first reverses; the same impatient and ignorant criticism of military operations; the same factious and disloyal opposition on the part of a powerful party; the same discouragement and despondency at times on the part of the true and loyal; the same prophecies of the utter hopelessness of success; the same complaints of grievous and burdensome taxation, and predictions of the utter financial ruin of the country; the same violent attacks upon the government for its

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arbitrary decrees, and particularly for the suspension of the writ of habeas corpus; the same difficulties arising from the inexperience of the army; and the same weakness on the part of the government in not boldly and energetically supporting the army in the field. These are some of the more striking parallelisms between the Peninsular War and our own struggle, which a slight sketch of the progress of that war will render very apparent. The insurrection in Spain which followed immediately upon a knowledge of the intrigues of Napoleon at Bayonne in April, 1807, by which the royal family was entrapped into an abdication of its right to the throne, and Joseph Bonaparte made king of that country, roused universal admiration and enthusiasm in England. It was thought by all parties that an obstacle to the further progress of Napoleon's schemes of the most formidable character had at last been found. It was the first popular insurrection in any country against Napoleon's power, and consequently, when the deputies from the Asturias reached England imploring succor, their appeals excited the popular feeling to the highest pitch, and the opposite parties in Parliament and the country vied with each other in demanding that England should aid the insurrection with the whole of her military power. It is curious to observe, that when the question of aid was brought before Parliament, Mr. Canning and Mr. Sheridan, who had probably never acted together before on any political question, rivalled each other in their praise of the Spaniards, and in their expressions of hope and belief that Napoleon had at last taken a step which would speedily prove fatal to him. Large supplies were voted by acclamation, and an important expedition, afterwards operating in two columns, one under the command of Sir John Moore, the other under that of Sir Arthur Wellesley, was dispatched to the Peninsula to aid the insurgents. It is not our purpose to trace the progress of this expedition, but merely to notice the effect which its immediate results, the retreat to Corunna, and the Convention of Cintra, produced upon popular feeling in England. As we look back on the history of that time, the folly and madness which seized upon the popular mind when the terms of the Convention of Cintra became known, can only be explained by recalling the high-wrought and extravagant expectations of immediate success with which the war had been entered upon. By this Convention, and as the result of a single battle, Portugal was wholly

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evacuated by the French; yet such were the unreasonable demands of public opinion, that because the whole French army had not been made prisoners of war, the Ministry was almost swept away by the outburst, and it could only control the storm by removing the two generals highest in rank. It required all the family and political influence of the third, Sir Arthur Wellesley, to enable him to retain his position in the army. The disastrous retreat of Sir John Moore's army to Corunna, and the easy triumphs of the French at that period throughout all Spain, plunged the English into despair. Going from one extreme to another, men who, only three months before, had quarrelled with the army in Portugal because it had not given them the spectacle of a French marshal and twenty thousand of his soldiers as prisoners of war at Spithead, now spoke openly of the folly of any attempt at all on the part of England to resist the progress of the French arms in the Peninsula. In Parliament there was the usual lame apology for disaster, an attempt to shift the responsibility from the Ministry to the General in command; but the great fact, that all their hopes had been disappointed still remained, and after the explanations of the government the general despondency became more gloomy than ever. It is not difficult in the light of history to see where the blame of failure should rest. Any one who is disposed now to sneer and cavil at the shortcomings of our own administration, to impute to it views shortsighted and impracticable in their policy, and to blame it for want of energy and vigor in the prosecution of the war, has only to turn to Colonel Napier's account of the stupid blunders of the English government, its absurd and contradictory orders, its absolute ignorance not only of the elementary principles of all war, but of the very nature of the country in which the army was to operate, and of the resources of the enemy, to be convinced that had its mode of carrying on hostilities, (which was the popular one,) been adopted, in six months not an English soldier would have remained in the Peninsula except as a prisoner of war. The history of this campaign contains important lessons for us; it shows conclusively that the immediate results of war are never equal to the public expectation, and that if this public expectation, defeated by the imbecility of the government, or soured by disaster in the field, is to be the sole rule by which military operations are to be judged, no war for the defence of a principle can long be carried on.

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Fortunately for the fame and the power of England, the Ministry, although ignorant of the true mode of prosecuting hostilities, had sense enough to perceive that their only true policy was perseverance. They were strong enough to resist the formidable opposition which the events we have referred to developed in Parliament and the country, and, undismayed by the experience of the past, concluded a treaty with the Provisional Government of Spain by which they pledged England never to abandon the national cause until the French were driven across the Pyrenees. The army was placed upon a better footing, was largely reinforced, and Sir Arthur Wellesley was appointed to the chief command. The government, not yet wholly awakened from its illusions, still thought it practicable to reach Madrid in a single campaign, and to that end the efforts of Wellington were directed. It became necessary first to dislodge Soult at Oporto, and the magnificent victory of the English gained by the passage of the Douro at that point went far to revive confidence at home in the invincibility of their army. Yet so clear is it that victory in war often depends upon what, for some better name, we may call mere good fortune, that we have the authority of the Duke of Wellington himself for saying, that this army, which had just exhibited such prodigies of valor, was then in such a state of demoralization, that although "excellent on parade, excellent to fight, it was worse than an enemy in a country, and liable to dissolution alike by success or defeat." Certainly no severer criticism has ever been justified by the inexperience and want of discipline of our own raw levies than that contained in this memorable declaration. A little reflection and candor might perhaps teach us, as it did the English, that nothing can compensate for the want of experience, and that every allowance is to be made for disasters where it is necessary to educate both officers and soldiers in the actual presence of the enemy. Wellington soon afterwards moved towards the Spanish frontier, hoping by a junction with the army under Cuesta to fight a battle with the French which would open to him the road to the capital. The battle was fought at Talavera, and although it has since been claimed by the English as one of their proudest victories, and the name of Talaveba is now inscribed upon the standards of the regiments who took part in it with those of Salamanca and Vittoria, yet the result was in the end, that Wellington was obliged to retreat to Lisbon just three months after he

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had set out from that place, having left his wounded in the hands of the French, having escaped as if by a miracle from being wholly cut off in his retreat, and having lost one-third of his army in battle and by disease. Of course the blame was thrown upon the want of co-operation on the part of the Spaniards. This we have nothing to do with; it is the result of the campaign with which we are concerned. Dependence upon the Spaniards was certainly, as it turned out, a fault, but it was one of the fair chances of war, and it was a fault in which Wellington, made wise by experience, was never again detected. When the news of the untoward result of this campaign reached England, the clamor against the Government and against Wellington was quite as violent as that excited by the disasters of Sir John Moore's army. The opposition in Parliament took advantage of this feeling to rouse public opinion to such a manifestation as might compel the termination of the war in the Peninsula and drive the ministry from office. The Common Council of London, probably a fair exponent of the opinions of the middle class, petitioned the King not to confirm the grant of £.2000 a year, which the Ministry had succeeded in getting Parliament to vote to Wellington. The petitioners ridiculed the idea that a battle attended with such results should be called a victory. "It should rather be called a calamity," they said, "since we were obliged to seek safety in a precipitate flight, abandoning many thousands of our wounded countrymen into the hands of the French." In the opinion of the strategists in the Common Council and of their friends in Parliament, Wellington might be a brave officer, but he was no general; he had neglected the protection of his flanks and his line of communication. When it is remembered, that at this very time, Wellington, profiting by the experience of the past, was diligently making his army really effective within the lines of Torres Vedras, from which stronghold it was in due time to sally forth like a giant refreshed, never to rest until it had planted the English flag on the heights of Toulouse, we may perhaps smile at the presumption of those who, sincere well wishers to the cause, displayed only their ignorance in their criticism. But what shall be said of those who, knowing better, being quite able to understand the wisdom of the policy adopted by the General to insure success in the stupendous enterprise in which the country was engaged, yet with a factious

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spirit and with the sole object of getting into power themselves, took advantage of the excitement of the ignorant multitude to paralyze the energies of the government? That hideous moral leprosy, which seems to be the sad but invariable attendant upon all political discussions in a free government, corrupting the very sources of public life, breeding only the base spirit of faction, had taken complete possession of the opposition, and in its sordid calculations, the dishonor of the country, or the danger of the army, was as nothing provided the office, the power, and the patronage of the government were secured in their hands. It mattered little to them, provided they could drive the ministry from office, whether its downfall was brought about by blunders in Spain, or by the King's obstinacy about Catholic Emancipation, or by an obscure quarrel about the influence of the Lords of the bed-chamber. The sincerity of these declamations of the opposition was curiously enough put to the test some time afterwards, when the ministry, wearied by the factious demagogueism with which all their measures were assailed, and understanding perfectly their significance, boldly challenged their opponents, if they were in earnest, to make a definite motion in the House of Commons, that Portugal should be abandoned to its fate. This move completely unmasked their game, and for a time silenced the clamor, for it was perfectly understood on all hands, that deep in the popular heart, undisturbed by the storms which swept over its surface, there was a thorough and abiding conviction of the absolute necessity of resisting the progress of Napoleon's arms, and that the real safety of England herself required that that resistance should then be made in Spain. Still this noisy clamor did immense mischief; it weakened the government, it prolonged the strife, it alarmed the timid, it discouraged the true, and it so far imposed upon Napoleon himself, that thinking that in these angry invectives against the government he found the real exponent of English sentiment, he concluded, not unnaturally, that the people were tired and disgusted with the war, and that the privations which it occasioned were like a cancer, slowly but surely eating out the sources of national life. In the midst of these violent tumults at home, Wellington was silently preparing for his great work within the lines of Torres Vedras. It would not be easy to overrate the difficulties by which he was surrounded. He was fully aware of the outcry which had

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been raised against him; he knew that from a Cabinet weakened by internal dissensions, and on the verge of overthrow from the vigorous assaults of the opposition, and from its own unpopularity occasioned by the failure of the Walcheren expedition, and the disasters in the Peninsula, he could expect no thorough and reliable support. Indeed the government, almost in despair, threw the whole responsibility for the military measures on the Continent on him alone. He accepted the responsibility in a most magnanimous spirit. "I conceive," he writes, "that the honor and the interests of the country require that we should hold our position here as long as possible, and, please God, I will maintain it as long as I can. I will neither endeavor to shift from my own shoulders on those of the ministers, the responsibility for the failure, by calling for means which I know they cannot give, and which perhaps would not add materially to the facility of attaining our object; nor will I give to the ministers, who are not strong, and who must feel the delicacy of their own situation, an excuse for withdrawing the army from a position which, in my opinion, the honor and interest of the country require they should maintain as long as possible." Animated by this heroic sense of duty, the Commander-in-Chief prepared to contend against the 200,000 men under Massena, whom Napoleon had sent to chase him into the sea. He had, to oppose this immense force, but 25,000 English soldiers, and about the same number of Portuguese tolerably organized. Secure within the lines of Torres Vedras, he quietly waited until the want of provisions, and the utter hopelessness of an assault upon his position forced upon Massena the necessity of retreating. Then instantly pursuing, in a series of battles, of almost daily occurrence, he drove Massena out of Portugal, and reached once more the Spanish frontier in May, 1 8 1 1 , nearly three years after the English had sent an army to the assistance of the Peninsula. Here he rested for a long time, making preparations for the siege of Badajoz and Ciudad Rodrigo, operations requiring time, and the success of which was essential to the safety of the army in its further progress. Still, so little was Wellington's position, military and political, understood in England even at that time, after all the proofs he had given of consummate ability, that public clamor was again roused against the mode adopted by him for conducting the war. As there were no disasters at which to grumble, people talked of "barren victories," because, like those

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of Crecy and Agincourt, they brought no territorial acquisitions, forgetting then what they have never been weary of boastingly proclaiming since, that these victories were the best proofs that their army was distinguished by the highest military qualities, which, properly directed and supported, were capable of achieving the most glorious results. So profound was the conviction of the immense superiority of the French both in numbers, and in the quality of their troops, that the public mind was in a state of feverish anxiety, and many of the stoutest hearts gave way to despair. About this period Sir Walter Scott writes to Mr. Ellis: "These cursed, double cursed news (from Spain) have sunk my spirits so much, that I am almost at disbelieving a Providence; God forgive me, but I think some evil demon has been permitted in the shape of this tyrannical monster, whom God has sent on the nations visited in his anger. The spring-tide may, for aught I know, break upon us in the next session of Parliament. There is an evil fate upon us in all we do at home or abroad." So Sir James Mackintosh, writing to Gentz, at Vienna: "I believe, like you, in a resurrection, because I believe in the immortality of civilization, but when, and by whom, and in what form, are questions which I have not the sagacity to answer, and on which it would be boldness to hazard a conjecture. A dark and stormy night, a black series of ages may be prepared for our posterity, before the dawn that opens the more perfect day. Who can tell how long that fearful night may be before the dawn of a brighter morrow? The race of man may reach the promised land; but there is no assurance that the present generation will not perish in the wilderness." As if to render the situation more gloomy, if possible, the Marquis of Wellesley, the brother of Wellington, left the ministry upon the avowed ground that the government would not support the war with sufficient vigor. History has stripped his conduct of any such worthy motive, and shown that the real trouble was his anxiety to supplant Mr. Perceval. At the same time the attack was kept up in the opposite quarter. "No man in his senses," said Sir Francis Burdett, "could entertain a hope of the final success of our arms in the Peninsula. Our laurels were great but barren, and our victories in their effects mere defeats." Mr. Whitbread, too, as usual, was not behindhand with his prophecies. "He saw no reason," he said, "to alter his views respecting peace; war must otherwise terminate in the subjugation of either of the

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contending powers. They were both great; but this was a country of factitious greatness; France was a country of natural greatness." So, General Tarleton "had the doctrine of Mr. Fox in his favor, who wished for the pencil of a Cervantes to be able to ridicule those who desired to enter upon a continental w a r . " 3 Thus, from universal enthusiasm in favor of the Spanish war, public opinion, at first manifesting itself through the factious spirit of the opposition, at length spoke through all its organs, in tones of despondency and despair, of the situation and prospects of the country, and simply because there had not been that sort of military success which it could understand, to sustain and direct it. Universal distrust seized upon the public mind, and had it not been for the heroic constancy of that great Commander, whose task in supporting the ministry at home was at least as difficult as that of beating the French in Spain, the glory of England had sunk forever. Yet it happened, as it so often happens in the order of Divine Providence, in the moral as in the physical world, that the night was darkest just before dawn. Amidst all this universal despondency and sinister foreboding, events were preparing which in a few short months changed the whole face of Europe, and forced back that torrent of revolutionary success which had spread over the whole Continent, until it overwhelmed the country where it had its source in complete ruin. The discussions in Parliament to which w e have referred took place in February, 1 8 1 2 . With the successful siege of Ciudad Rodrigo on the eighteenth of January of that year, with the a

The following description of the opposition of that day, taken from the Annual Register for 1 8 1 2 , bears so striking a likeness to the peculiarities of the leaders of an insignificant, but restless faction among us, that, omitting the old-fashioned drapery of the proper names, they seem to have sat for the photograph. "It may be remarked as a most singular circumstance, that those persons in this country who profess to have the greatest abhorrence of ministerial tyranny and oppression, look with the utmost coolness on the tyranny and oppression of Bonaparte. The regular opposition do not mention it with that abhorrence which might be expected from them; but the leaders of the popular party in Parliament go further. They are almost always ready to find an excuse for the conduct of Bonaparte. The most violent and unjustifiable acts of his tyranny raise but feeble indignation in their minds, while the most trifling act of ministerial oppression is inveighed against with the utmost bitterness. Ready and unsuspecting credence is given to every account of Bonaparte's success; while the accounts of the success of his opponents are received with coldness and distrust. Were it not for these things, the conduct of Mr. Whitbread and his friends would be hailed with more satisfaction, and inspire more confidence with the real lovers of their country; for they deserve ample credit for the undaunted and unwearied firmness with which they have set themselves against abuses and against every instance of oppression."

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fall of Badajoz on the 26th of March, the first battle of Salamanca on the 20th of July, and Napoleon's invasion of Russia in June in the same year, began the downfall of the French Empire. Wellington at last reached Madrid in August, 1812, more than four years later than he ought to have done, according to the strategists of Parliament and the Press. This was all forgotten at the moment, so magic a wand is held by success. The fickle voice of popular applause was again heard, echoing the spirit of confidence which his persistent and undaunted conduct had revived in the hearts of his countrymen. His career of victory, however, was destined not to be unchecked, and when, after his occupation of Madrid, his unsuccessful assault upon the Castle of Burgos rendered a retreat to the Portuguese frontier and the evacuation of the capital a proper military movement, although that retreat was compensated for by the abandonment of Andalusia by the French, in order to concentrate their whole force against him, still the blind multitude could not be made to understand it, and began again to murmur. It is not now difficult to see that the victory at Salamanca was really what the far-seeing sagacity of Marshal Soult predicted at the time it would become, "a prodigious historical event," that it was the pivot on which at that time hinged the destinies of England, one of those battles of which we see perhaps a dozen only in the whole course of History which are really decisive of the fate of Empires. It completely unloosed the French power in the Peninsula, and prepared the way for the great success of Vittoria, the next year, which gave the coup de grace to the French military occupation of Spain. It is not our present purpose to trace the history of the next campaign, but it is curious to observe the effects produced by assured success upon that public opinion which had shifted so often and so strangely during the progress of this eventful struggle. The opposition, as their only hope of escape from political annihilation, and thinking to swim with the popular current, abused the ministers for not supporting Wellington with sufficient earnestness, complaining that they had taken the advice which they themselves had so often and so eloquently tendered. But it was of no avail; this wretched charlatanism was too transparent to impose upon any one, and of the great party who opposed the war, no one ever after rose to office or power in England. It required a whole generation, in the opinion of the English constituencies, to expiate the faults of

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those who had sneered at the great Duke, and had called the glorious fields of Vimeiro, Busaco, Talavera, Fuentes d'Onor, Ciudad Rodrigo, and Badajoz, names which had become associated with the proudest recollections of English renown, "mere barren victories, equal in their effects to defeats." We pass now to the consideration of another class of difficulties inherent in the prosecution of every war, and generally of far greater magnitude than any other, — those connected with the raising of the vast sums of money required for the support of military operations. In this important matter, if we mistake not, there are some striking points of resemblance between the English experience during the war, and our present situation. It is the fashion among many who seek to excite the public alarm on this subject from unworthy, and sometimes, it may be feared, from treasonable motives, to represent the enormous outlay of the nation's wealth which is poured out to save the nation's life, as wholly unparalleled in history. Yet it may be asserted, without any fear of contradiction, that England, with a population then little more than half of that which now inhabits our loyal states, with resources infinitely less in proportion at that time than our own, her manufacturing industry so far as external outlet was concerned wholly crippled by the operation of the French continental system and her own Orders in Council, expended, during every year of the Peninsular war, as large an annual sum as has been required here each year to create and keep up the gigantic force now in arms to put down the Rebellion. During the five years that the war lasted, her average annual expenditure exceeded ninety millions of pounds sterling or four hundred and fifty millions of dollars, which is about the same sum which is demanded of us. No one, of course, pretends to say that this rate of expenditure is not appalling, yet it concerns us to know that it is not unprecedented, and that these vast amounts have been raised from national resources far inferior to our own. It should not be forgotten, also, that they represent the money price of England's independence, and if ours is secured by a far greater outlay, we certainly are not disposed to quarrel with the wisdom of the investment. The question is, how were these immense sums raised in England? The man who would have predicted, at the commencement of the war with France, that the English national debt would at its close exceed one thousand millions of pounds sterling, and that the

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country would be able to bear such a burden, would have been regarded as a visionary as wild as he who in this country, two years ago, might have foretold the present amount of our national debt, and have contended that, in spite of it, the public credit would remain unimpaired. The difficulty in England of raising these vast sums was tenfold greater than it is here. Napoleon, looking upon England as the Southern people have been taught to regard us, as a purely commercial nation, undoubtedly placed more reliance for ultimate success upon the instinct of money getting, which would shrink from the pecuniary sacrifices necessary in a prolonged struggle, than upon the mere victories of his army. Hence he pursued, during his whole career, an inflexible purpose of ruining English Commerce, and by a series of measures known as the Continental system, endeavored to exclude English ships and English products from the markets of the world. The effect of these measures, although not so serious as he wished and had anticipated, nevertheless crippled enormously the resources of England just at the period when they were most needed. Taking the three years before the issuing of the Orders in Council and the vigorous enforcement of the Continental system, which were coincident in point of time with the commencement of the Spanish war, the average annual exports sank from fifty-seven millions to twenty-three millions, taking the average of three years after they had been in operation. Taxes were laid on at a most burdensome rate. The income tax was ten per cent., and besides, specific war taxes amounting to more than twenty millions a year were imposed. Notwithstanding all these taxes, the debt increased beyond the annual income more than one thousand millions of dollars during the Peninsular war. Discontent and violence among the laboring classes became universal, and it was remarked that the achievement of the greatest victories in Spain was celebrated in England "amidst a population who had been prevented by the burden of taxation on the absolute necessaries of life, from securing a livelihood by the strictest industry, and thus pauperism had been generated throughout the land, a pauperism aggravated by a spirit of pillage, which it required a strong military force to repress." Bankruptcy and ruin fell upon the trading classes, and absolute exhaustion of the resources of the country seemed almost reached. The public stocks had sunk to such a degree that the three per cents.,

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which are now always above 90 per cent., were rarely higher during the war than 65 per cent., and so depressed at last had the public credit become, that the last loan of the Continental war, that of April, 1815, was taken by the Contractor at 53 per cent., and paid for in the depreciated paper of the day, and yet the Chancellor of the Exchequer was congratulated even by the opposition for having made "a good operation." The Bank was in a state of chronic suspension, the buying and selling of gold were prohibited to the public under severe penalties, and yet every gold guinea which was sent by the Government to the army in Spain (and nothing else would answer the purpose of money in that country ) cost thirty per cent, premium. How England survived all this complication of troubles is one of the marvels of History, but it is not our purpose to discuss that question. The great fact that the money required was raised somehow is all we have to do with at present. When we have been at war for twenty years, and are forced, in order to raise the means of carrying it on, to submit to one tithe of the sacrifices which were endured by the English, we may then perhaps begin seriously to consider the money value of the Union. The lesson which the review we have taken of the progress of the Peninsular war teaches, is, it seems to us, one of hope and encouragement, for if it shows anything it proves clearly, that in the support of public opinion, and in the means requisite to maintain a great army, those fundamental essentials of real military success, our Government is immeasurably stronger than the English ever was at any period of the war. It teaches also another important lesson, and that is, that there is such a thing as public opinion falsely so called, which is noisy just in proportion as its real influence is narrow and restricted. One of the most difficult and delicate tasks of the statesman is to distinguish the true from this false opinion, the factious demagogue from the grumbling but sincere patriot, and to recognize with a ready instinct the voice which comes from the depths of the great heart of the people, in warning it may be sometimes, in encouragement often, but always echoing its abiding faith in the ultimate triumph of the good cause. We have confined ourselves in our illustrations to the discussion of questions as they affected the success of purely military operations, because we feel that here our grand business is to clear away the obstacles, real or fancied, which may in any way impair our

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military efficiency. In military success alone, we are firmly convinced, is to be found the true solution of our whole difficulty, the only force which can give vitality or permanence to any theory of settlement. As the matter now stands, it is idle to hope for either peace or safety until this question of military superiority is unmistakably and definitively settled. Upon this point then, the increase of our military efficiency, which embraces not merely the improvement of the condition of the army, but also, as we have endeavored to show by English examples, and in a greater degree than is often supposed, the support of the Government in its general policy of conducting the war, should the efforts of all those who influence public opinion be concentrated. There is a certain class of men among us, not very numerous, perhaps, but still, owing to their position and culture, of considerable influence, who, accustomed to find in the European armies their standard of military efficiency, are disposed to doubt whether a force, composed as ours is of totally different materials, can accomplish great results. We may admit at once the superiority of foreign military organization, the result of the traditions of centuries of military experience, digested into a thorough system, and carried out by long trained officers perfectly versed in the details of the service. Much inconvenience has necessarily resulted in our case from the ignorance of Regimental Officers, to a greater degree probably, however, from a want of proper care and attention on their part to the troops when in camp, than from any gross incompetency or misconduct on the field of battle. Instances of such misconduct there have undoubtedly been, but, considering the number of the officers and their want of experience, those instances are extremely rare, and when we call to mind the number of officers who have fallen, while leading their men in battle, out of proportion, as it undoubtedly is, with the losses in other wars, we may well palliate deficiencies in this respect, out of consideration for their heroic gallantry and devotion. We do not underrate certainly the value of good officers, but history tells us that great victories have been achieved by armies who were no better led than ours. The incompetency of his officers was one of Wellington's standing complaints in Spain. Most of them knew absolutely nothing beyond the mere routine of garrison duty; they were all what is technically called "gentlemen," for each one had purchased his commission at

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a high price, but they had had no systematic training in military schools, nearly all of them had had no actual experience of war, and their average intelligence was undoubtedly below that of the men who hold similar positions in our army.4 All accounts agree that at that period, the scientific branches of the great art of war were almost wholly neglected in the British army, and such was the happy ignorance of the elements of strategy, that at a court martial composed of general officers for the trial of General Whitelock in 1808, for his failure at Buenos Ayres, it was necessary to explain to the court what was meant in military phrase by the "right bank" of a river. It is said again, by those who have the standard of foreign armies always before their eyes, that among our soldiers there is not a proper deference to rank, too much camaraderie in short, and that this is fatal to discipline. But it should be remembered that mere formal discipline may be one thing, and the true spirit of discipline another, and yet both may answer the same purpose. The first may be more showy than the latter, but not more valuable to real military efficiency. Everything depends upon the character of the soldier who is to be governed by it. The British army is composed, as we all know, of the refuse of the population, and in the war in the Peninsula it was largely reinforced by the introduction into its ranks of convicts taken from the hulks, who were there expiating infamous offences. With such men, motives based on a sense of duty were powerless. Drunkenness, theft, marauding, a mutinous spirit under privations, and a fierce thirst of license which defied all control in the hour of victory, these were the brutal passions which could only be checked by the equally brute hand of force. But from such a vile herd, made useful only as a slave is made useful, by fear of the lash, to the civilized, sober, well educated American citizen, animated with the consciousness that he is fighting for a great cause, 4 W e have no room to enumerate in detail the complaints made by the Duke of the officers of his army. Those who are interested in the subject may consult Col. Gurwood's 4th volume, pages 343, 346, 352, 363, 385, 399, and 407. The whole story is summed up, however, in the general order occasioned by the disorderly retreat from Burgos, in which the Duke said "that discipline had deteriorated during the campaign in a greater degree than he had ever witnessed, or ever read of in any army, and this, without any disaster, or any unusual privation or hardship, that the officers had from the first lost all command over their men, and that the true cause of this unhappy state of affairs was to be found in the habitual neglect of duty by the Regimental Officers." This is the army of which the Duke said later, that "with it, he could go anywhere and do anything," and, good or bad, it saved Europe — in the English sense.

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in the success of which he and his children have a deep personal interest, and who learns obedience because both his common sense and his sense of duty recognize its necessity, how immeasurable is the distance! The American volunteer, in this respect, has not had justice done to his excellence. He is certainly a soldier essentially sui generis, and when we hear sneers at his want of discipline, let us remember that although he may not regard his officers as superior beings, yet experience has already shown that in the cheerful performance of his new duties under privations; in his freedom from those vices which in many minds are inseparably associated with the very idea of a soldier; in his courage, endurance, and steadiness in battle; and more than all, in those higher qualities which are the fruit of his education, general intelligence, and love of country, he presents himself to us as a figure hitherto wholly unknown in military history. One of the most cruel statements which party rancor has circulated in regard to the condition of the army is, that the rate of sickness and mortality is excessive, and that this is due to the neglect of the government. Fortunately we have the means of showing that these statements are false. From June 1, 1861, to March 1, 1862 — nine months — the annual rate of mortality for the whole army is ascertained to be 53 in a thousand, and the sickness rate 104 in a thousand. The returns for the summer campaigns are not yet printed, but it will appear from them that in the army of the Potomac on the 10th of June, after the battle of Fair Oaks, and while the army was encamped on the Chickahominy, the whole number of sick, present and absent, compared with the whole force of that army present and absent, was 128 in a thousand. During the stay of the army on the Peninsula it lost less than 14,000 men by death from disease and wounds, and the average sickness rate during the campaign was about that which has for some time prevailed in the whole army, less than ten per cent, of the whole force. It appears, strange to say, that the army was more healthy when in the trenches before Yorktown, than at any other period of the campaign. Compare this with the English experience. We have already said that Wellington lost about one-third of his whole army from malarious fever on his retreat from Talavera: on the ist October, 1811, the Anglo-Portuguese army had 56,000 men fit for duty, and 23,000 sick in hospitals; and in the Crimea, while the

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annual rate of mortality for the whole war was 232 in a thousand, the period of active operations, the last three months of 1854 and the first three months of 1855, shows the fearful rate of 711 deaths in every thousand men. It cannot be doubted that to many the most unfavorable symptom of our present condition is the slow progress of our arms. This slowness is more apparent than real, for the history of modem warfare scarcely shows an instance in which so great real progress has been made in the same space of time, and it is manifest that whenever our northern soldiers have had a chance of fighting the enemy on anything like equal terms, they have fully maintained their superiority. It is none the less true, however, that public expectation in this matter has been much disappointed, and it is curious to look at some of the explanations given for it. The Prince de Joinville, in his recent pamphlet, speaking of the battle of Fair Oaks and of the neglect to throw bridges over the Chickahominy at the proper time, by means of which the whole rebel army might have been taken in flank, and probably destroyed, ascribes the neglect on one page to what he calls la lenteur Américaine, which he seems to think always leads our countrymen to let the chance slip of doing the right thing at the right time, and again on the next to "faute d'organisation, faute de hiérarchie, faute de lien, qui en resuite entre l'âme du chef et l'armée, lien puissant qui permet à un General de demander à ses soldats et d'en obtenir aveuglement ces efforts extraordinaires qui gagnent les battailles." In other words, General M'Clellan, knowing that he could gain a decisive victory by laying down half a dozen bridges, which, it is stated, were all ready for the purpose, actually refused to order his soldiers to do it, because he was afraid they would not obey his orders. And this is the Prince's judgment of an army, which, a few weeks later, according to his own account, fought five battles in as many days, all, with one exception, victories over an enemy at least double its numbers, and arrived at its new base on the James River in excellent condition and without the slightest taint of demoralization. This illustration shows the absurdity of ascribing the want of immediate success to la lenteur Américaine, a quality, by the way, which we learn for the first time is one of our national characteristics. Among the many causes which might be named, all perfectly legitimate, and presenting no obstacle which a little experience will

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not remove, we venture to suggest but one, and that is the character of the early military education of our higher officers. The system pursued at West Point, although admirable for qualifying officers for the scientific and staff corps of the army, seems to fail in teaching the young soldier, what is just now the most important quality he can possess for command, the character and capacity of volunteer soldiers. The system of discipline he has been taught is that which governs the regular army, a system modelled upon the English, which is, with the exception of that in use in Russia, the most brutal and demoralizing known in any army in Europe. No wonder, therefore, that when our educated soldiers are suddenly placed in high positions, and with great responsibilities, and when they discover that the sort of discipline which they have been taught is wholly out of place in securing the efficiency of a volunteer army, they are led to doubt whether it can ever be made efficient at all. These prejudices, however, are wearing away before the test of actual experience. Generals are gradually learning that they may confide in their men, even for desperate undertakings; they begin to see in their true light the many admirable qualities of the volunteer; and he, in turn, begins to understand something of that military system which seemed at first so irksome and meaningless to him; and the advance of the army in the essentials of discipline has been proportionably rapid. There is a good deal of talk about the impossibility of conquering or subjugating the South, which is based upon very vague notions of what conquest and subjugation signify. It is surprising to find how even intelligent men have been imposed upon by this favorite boast of the rebels and their sympathizers. A pretended saying of Napoleon is quoted, that "it is impossible to prevent any people determined on achieving its independence, from accomplishing its purpose;" and it is confidently asked whether any one ever heard of the subjugation of twelve millions of people determined to be free. We reply that history, ancient and modern, is full of instances of the only sort of conquest or subjugation which any sane man proposes shall be submitted to by the South. No one thinks it possible or necessary, for the purpose in view, to occupy the whole South with garrisons, but simply to destroy the only support upon which its arrogant pretensions are based, namely, its military power. This gone, what becomes of all the rest? and this remaining, where is

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there any hope of permanent peace and safety to us? For what is all war but an appeal to force to settle questions of national interest which peaceful discussion has failed to settle; and what is an army, but only another argument, the ultima ratio, which, if successful in decisive battles, must give the law to the conquered? To say nothing of instances in ancient history, Poland, Hungary, and Lombardy in our day were just as determined to be free as the South is, and quite as full of martial ardor; and certainly Prussia, Spain under the Bonaparte dynasty, and the French Empire, are all examples of nations which valued their independence, and had tenfold the resources for maintaining it which the South possesses; yet the capture of Warsaw, the surrender of Villagos, the battles of Novara, of Jena, of Salamanca, and of Waterloo respectively, settled as definitively the fate of the inhabitants of those countries and their future condition as if the terms imposed by the conquering army had been freely and unanimously agreed upon by the representatives of the people in Congress assembled. And, in like manner, can any one doubt, looking at the present comparative resources of the two sections, that if we should gain two decisive battles, one in the East and the other in the West, which should result in the total disorganization of the two rebel armies, and thus enable us to interpose an impassable barrier between them, we should soon hear a voice imploring in unmistakable accents peace on our own terms? It would not be a matter of choice, but of necessity; a simple question of how far the progress of exhaustion had been carried, and that once settled, and no reasonable hope of success remaining, the war would not last a week longer. This is the experience of all nations, and our Southern rebels, notwithstanding their noisy boasting, do not differ in their capacity of resistance from the rest of mankind. "Hard pounding this, gentlemen," said the Duke of Wellington to his officers, as he threw himself within one of the unbroken squares of his heroic infantry at Waterloo, "but we'll see who can pound the longest" and the ability of that infantry to "pound the longest" on that day settled the fate of Europe for generations. Let us bend, then, our united energies to secure, as much as in us lies, success in the field, and that success gained, we may be sure that all things will follow. Let us recognize with confidence as co-workers in this great object all, never mind what opinions

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they may entertain about the causes of the war, and the new issues which its progress has developed, who desire in all sincerity, no matter from what motive, the success of our arms. Upon such a basis, the wider and more catholic our faith becomes the better. "In essentials Unity; in non-essentials Liberty; in all things Charity:" this should be our motto. The only possible hope for the South is in our own divisions. Let us remember that with success all things are possible; without it, all our hopes and theories vanish into thin air. With success in the field, we should not only disarm the rebellion, and rid ourselves forever of the pestilent tribe of domestic traitors by burying them deep in that political oblivion which covers the Tories of the Revolution, and those who sneered at the gallant exploits of our navy in the war of 1812, but also force public opinion abroad, whose faithlessness to the great principles which underlie all modern civilization has been one of the saddest developments of this sad war, to exclaim at last, " I n v i d i a m gloriâ

superâsti."

Pamphlet 16 Facts for the People! Relating to the Present Crisis. By a Citizen of Indiana. Indianapolis, 1862 [The policies of the Lincoln administration received their first serious political test in the congressional and state elections of 1862. Democratic politicians asserted emphatically their devotion to the Union and their intention to prosecute the war to a triumphant conclusion. Thus having established their loyalty they proceeded to castigate the Republican policies. One of the states in which they were successful was Indiana, where the Democratic party had been ascendant before the war. From Jackson until Lincoln, a majority of the voters had cast their ballots for the Democratic candidate for President in every election except the two in which the Hoosier hero, William Henry Harrison, was on the ticket. In 1862 the party reverted to the old themes of agrarian Jacksonian Democracy. The appeal published by the Democratic State Central Committee is notable for its attack upon the Republican economic program as signifying the exploitation of Indiana farmers and workers for the aggrandizement of Eastern capitalists. In addition to economic issues, the limitation of civil liberties, the unpopularity of abolitionism and the draft, and stinging military reverses enabled the Democratic party to win a clear victory by a margin of nine thousand votes in the October election. In a victory statement on October 27, 1862, the Democratic State Central Committee declared: "Armed rebellion must be suppressed by force, and the insane and infuriated faction of Abolitionists must retire before the ballots of a free people. The first civic battle has been fought, and the first victory won in the contest. . . . The sun of Constitutional liberty beams upon this goodly land!" 1 ]

WE have fallen upon times of much evil. It is the duty of every patriot to assist in searching for, and, when found, point out the crooked paths leading to that evil; and the strait and narrow road leading from the same. Just as a good physician before he prescribes 1 [Κ. M. Stampp, Indiana Politics During the Civil War ( Indianapolis, Indiana, 1949), XXXI, 157 and passim.]

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for a patient, makes inquiry as to the former life, habits and constitution of such person; it is necessary for us to understand: I. Previous political history — the facts preceding the present rebellion. II. The remote and immediate causes producing the present condition. III. The course that has been pursued touching this state of affairs, by those exercising power. After looking at these things, we will be prepared to inquire: IV. Whether the proper course has been pursued. To each of these points we propose devoting a short chapter, in collecting FACTS, accompanied by such thoughts as may arise. The labor consists not so much in obtaining materials for such an inquiry, as in selecting the parts that can be compressed into the smallest compass, to be useful, of the vast amount of kindred evidence to be found in the library of every well-informed man. CHAPTER I We had for many years, previous to this war, enjoyed great prosperity as a nation and a people. The foundation for that prosperity had been laid by our fathers. They were reared in troublesome times. It was but natural, therefore, that they looked deeper into the causes of human action, and necessity and proper forms of human government, than we have heretofore had occasion to do. They, apparently, valued liberty and good government more than we do; just as the builder of a fortune appears usually to appreciate and value it higher, than he to whom it falls without exertion — by inheritance. For many years preceding the revolutionary war — for the six years that the struggle lasted, and for the few years following, that the Articles of Confederation were in force, this subject received the earnest and searching consideration of some of the most profound men who ever lived. The memorials and appeals to the British King, Parliament, and people — the Declaration of Independence preceding that war, are living evidences of the fact. The CONSTITUTION of the United States was the final production of the

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embodied wisdom of those wise men. Lives of the Chief Justices, p. 140. By its history, as written in the debates upon its adoption, and verified in many ways by those who aided in its formation, it is clear that it was the result of a reconciliation of many slight shades of opposing opinions, and a compromise of conflicting interests, concessions deemed necessary to secure the end aimed at by all, namely, the good of the whole. One of the most profound and philosophical statesmen that has ever written, although not a member of the Convention that formed that Constitution, left upon record his views in regard to the form of government best adapted to the end thus aimed at, namely, Mr. Jefferson, who, in his Inaugural Address, thus sums up, so far as we need notice them, the requisites of such a government: Equal and exact justice to all men, of whatever State or persuasion, religious or political; the support of the State governments in all their rights, as the most important administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies; the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad; a zealous care of the right of election by the people; a mild and safe correction of abuses which are lopped off by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of Republics, from which there is no appeal but to form the vital principle and immediate parent despotism; the supremacy of the civil over military authority: economy in the public expense, that labor may be lightly burdened; encouragement of agriculture, and of commerce as its handmaid; the diffusion of information, and arraignment of all abuses at the bar of public reason; freedom of religion, freedom of the press, and freedom of the person under the protection of the habeas corpus and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, and touchstone by which to try the services of those we trust. Holding to this creed, Mr. Jefferson became President in 1801, and laid thereon, deep and broad, the foundations of the Democratic party. Let us LOOK AT THE RESULT.

For sixty years of the existence of this constitutional Government, men holding to this creed controlled affairs, and no man,

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previous to i860, was ever elected to the Presidency on purely sectional grounds, or who was not openly in favor of administering the Constitution for the general good. Differences often arose on questions of revenue and finance, war and peace with foreigners, but never before as to the duty of the Government to protect alike all, under the Constitution. The result was, that this Government acquired strength, power and influence among the nations of the earth in a shorter period of time than any other that ever preceded it. The white wings of our commerce were upon every ocean. The broad folds of our flag everywhere protected the humblest citizen. We remember that, but recently, a haughty power of the old world was compelled, in the surrender of Martin Kosta, to admit its potency. It was enough for him to say, "I am an AMERICAN citizen," and he was relieved, as Paul was delivered from scourging, when he cried out, "I am a Roman." In return, the citizen rendered ready and cheerful assistance and obedience to the Government that thus protected him in his rights of personal liberty and private property — that in a word give him freedom — not in name only, but in fact. From thirteen feeble colonies of three millions of people, we became in about eighty years a mighty nation of thirty-four States and five Territories, numbering more than thirty millions of inhabitants. Instead of being confined to the Atlantic seaboard alone, our dominion was extended from ocean to ocean. In its diurnal round the sun barely ceased to shine upon our possessions. The evening drum had scarcely ceased to beat upon the far off Pacific coast, when the morning gun would awaken the echoes upon our extreme east. Our wealth had become exceeding great — perhaps, twelve thousand millions of dollars. Education had spread abroad throughout the land. We had missionaries in almost every field of labor. Our influence was being happily felt in every civilized government. The downtrodden, everywhere, were looking to us and rising up and calling us blessed. This was the great RESULT — the ripe fruit of the practical administration of government in accordance with the CONSTITUTION and the creed of Jefferson. As the city of Babylon fell, and as Job was stricken, in the midst of feasting and rejoicing, so the evil came upon us in the day of our prosperity. Let us look then for

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The immediate causes that led us into it. This deserves another chapter. CHAPTER II We have stated that up to the election of Lincoln, the Presidents had been chosen by and for the whole people, and had professed to so act. But there had been at various times, after the first fifty years of the Government, certain species of class legislation indulged in that was irritating and provoking to parts, or sections, of the Union; because it tended to take the profits of the labor of one man and give it to another — in addition to the legitimate proceeds of that other's labor. Within this class fell tonnage and tariff acts. The first favored our own carrying vessels over foreign vessels. The second favored our own manufacturers over foreigners. The effect was, that both the navigating and manufacturing interests reaped undue profits, which were extorted from the earnings of agriculturists. Because they prevented agriculturists from sending their products abroad by the cheapest mode of transportation, and likewise prevented them from buying where they could obtain the cheapest. These laws were at various times modified and reformed; but were not in the last thirty years made to conform to the maxims of Jefferson — for manufactures and commerce have been fostered by law, and agriculture has not, in this, that agriculturists have not been permitted to sell where they could get the best price, nor buy where they could get manufactured articles the cheapest. But these questions, however irritating, were not of such a character as to arouse a whole people, nor supposed to carry with them any serious danger; but this taking, by law, a part of the money of one portion of the people and putting it in the pockets of another portion, was sufficiently provoking to make those who were fleeced rather over forward to seize hold of missteps affecting their vital interests; especially when urged thereto by designing and unscrupulous men. The Southern and Western people had one common interest; that is, they were agriculturists. The prevailing interests in the Northern and Eastern States were manufacturing and commercial.

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Keeping in view the irritation which had been kept up by class legislation, we are prepared to examine the FATAL QUESTION,

One in which the Southern States had a peculiar interest — the Western and other States no more than a general interest, under the Constitution; for if every member was in a healthy condition, so would be the whole body politic. This question is one of many phases. It involves under our Government, State Rights — the system of labor — the social system, and finally the right to four thousand million dollars worth of property. It is the question of SLAVERY.

The Democracy have at all times contended that the system of slavery in this country is under the exclusive control of the State Governments, one with which the Federal Government has nothing to do where it exists in a State. This position of the party is so well understood that it is useless to cite authorities to prove it, other than the 7th resolution of the Democratic Convention of 1840. That resolution is as follows : That Congress has no power, under the Constitution, to interfere with, or control the domestic institutions of the several States; and that such States are the sole and proper judges of everything pertaining to their own affairs, not prohibited by the Constitution; that all efforts by the Abolitionists or others, made to induce Congress to interfere with questions of slavery, or to take incipient steps in relation thereto, are calculated to lead to the most alarming and dangerous consequences, and that all such efforts have an inevitable tendency to diminish the happiness of the people, and endanger the stability and permanancy of the Union, and ought not to be countenanced by any friend to our political institutions.

That this position is correct, we will cite the opinions of great men not Democrats. It is a clear historical truth, that the Convention meant to leave slavery, in the States, as they found it — entirely under the authority and control of the States themselves.—Webster's Speech on the 7th of March, 1850. The powers of the American Congress are few, cautiously limited, scrupulously excluding all that are not granted, and above all carefully and absolutely excluding all powers over the existence or continuance of slavery in the several States. — Clay's Speech, Feb. 7th, 1839.

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See, also, President Lincoln's Inaugural, where he says: 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.

So, on the 23d of March, 1790, an expression in Congress was spread on record as to the powers of the Federal Government on this subject. Many of those who had assisted in forming the Constitution being then present, and aiding in this expression as follows : That Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them, in any of the States; it remaining with the several States alone to provide any regulations therein which humanity and true policy may dictate. — Hildreth's History of the United States, vol. l , Second Series.

So the fourth resolution of the Chicago Convention that nominated Mr. Lincoln is as follows: 4. That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depends, &c.

Mr. Lincoln, in accepting the nomination of this Convention, says in his letter: The declaration of principles and sentiments which accompanies your letter meets my approval; and it shall be my care not to violate or disregard it in any part. Any one who sees proper to pursue this point further than we have limits to elucidate it, will find the colonies, in giving authority to their delegates to the colonial Congress, to bind them to a uniform mode of action and declarations — as the Declaration of Independence itself — reserved to themselves, as in the case of Maryland, "the sole and exclusive right of regulating the internal government and policy of the colony to the people thereof."

So in the formation of the "Articles of Confederation," in 1781, by the second article: Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled. — 1 Rev. Statute, p. 7.

These "Articles" were found insufficient, because trade, commerce, and many other questions were left under the control of each State, whereas a more general control by the Federal Government

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was deemed essential. Therefore, at the instance of commissioners appointed to regulate trade, the Congress recommended the assemblage of the Convention which formed the original part — not the twelve amendments, of our Constitution. Upon being informed of the probable change in the form of Government, Mr. Jefferson, who was then minister to France, wrote, August 4, 1787, to E. Carrington: My general plan would be to make the States one as to everything connected with foreign nations, and several as to everything purely domestic — Also Letter to Mr. Wythe, Sept. 16th, 1787.

The work of this Convention was submitted to Conventions in the several States. In adopting it various amendments were insisted upon, some of them upon the suggestion of Mr. Jefferson. His objection was that there was no sufficient bill of rights Providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, the eternal and unremitting force of the habeas corpus law, and trial by jury. — Letter to Mr. Madison, Dec. 20th, 1787.

These objections were urged in the Virginia Convention by Patrick Henry, (see 2 vol. Eliott's Debates), with an eloquence never surpassed. The Congress to which the Constitution and proposed amendments were submitted, therefore, recommended amendments — ten were then adopted, many of which are in the nature of declarations of the rights of the people and the States, and limitations of the powers of the Federal Government. See amendments I R. S. p. 33. It was supposed that certain rights were thereby secured from any infringement by the General Government: First. The freedom of speech, of the press, and of the right of the people to assemble and petition for the redress of grievances. Second. The right of freedom from arrest, or from search of houses, or seizure of papers, unless upon a warrant regularly issued. Third. The right to a speedy public trial, by a jury of the State, after indictment by a Grand Jury, on all charges of a capital or infamous crime. Fourth. "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."

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Thus it is seen that the Democratic party, and Webster and Clay, were right as to the reservation to the States of the sole power over their internal affairs; and also as to the point that "the Federal Government is one of delegated powers. All powers not delegated to it, or inhibited to the States, are reserved to the States, or to the people." 11 Peters' Reports Supreme Court United States. 16 Peters 539. In which it is determined that each State might, by law, declare slaves, held in other States, and coming into their jurisdiction, free, under their exclusive right to regulate their internal affairs, if it was not that the control over that question — of fugitive slaves — was expressly delegated to the Federal Government, and was, therefore, not reserved to the States. SECTIONAL PARTIES

In open disregard of the Constitution, and of all these well settled and vital principles, there have been in the Northern, or free States, for twenty-five years, organizations under various names, as AntiSlavery Societies, The Liberty Party — Free Democracy — Free Soilers — Emigrant Aid Societies — Abolitionists, and finally, the name now assumed is, Emancipation Leagues. Among the proceedings of the "American Anti-Slavery Society," at their annual meeting on the ist of May, 1844, may be found resolutions, declaring that "every act done in favor of the American Union rivets the chains of the slave;" and again, that "The Abolitionists of this country should make it one of the primary objects of this agitation to dissolve the American Union." See New York Observer, May 2, 1844. Wendell Phillips was in that meeting, and therefore could well say, in his speech during the last winter at Washington City, that he had labored nineteen years to drive fifteen States out of the Union, and from the delivery of which he was invited to the White House by the President, and to the floor of the Senate by the Vice President. They have all aimed at one object, which can be no better described than by quoting from a speech of Mr. Clay, of the 7th of Feb. 1839. With this class the immediate abolition of slavery in the District of Columbia, and in the Territories, the prohibition of the removal of slaves from State to State, and refusal to admit any new State comprising within its limits the institution of domestic slavery, are but so many means conducing

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to the accomplishment of the ultimate, but perilous end, at which they avowedly aim; are but so many short stages in the long and bloody road to the distant goal at which they would finally arrive. Their purpose is abolition, universal abolition — peaceable if it can, forcible if it must.

The object of these people was to dissolve the Union, as much so as any secessionist of the South, as witness their resolutions at a Convention held in the city of New York, in 1859, to wit: WHEREAS, The dissolution of the present inglorious Union between the free and the slave States would result in the overthrow of slavery, and the consequent formation of another government without the incubus of slavery; therefore, Resolved, That we invite a free correspondence with the disunionists of the South, in order to agree upon the most suitable means to bring about so desirable a result.

So Andrew Johnson, in a speech at Columbia, Tennessee, on the 2d of June, 1862, said: Both Secessionists and abolitionists are in favor of a dissolution of the Union.

These unhallowed, illegal organizations produced their counterparts in the South; as Southern Conventions, Border Ruffians, and finally Secessionists. We do not propose to discuss the relative merits of these societies, or to intimate an opinion as to which of them has reached the deepest into the profound depths of degradation and crime. It has been a debatable question with moralists and law writers, as to which is the most culpable, the man that incites to, and causes the commission of, a crime, or the one that commits it. These organizations were in disregard of the creed of Jefferson, the teachings of the fathers, and the provisions of the Constitution, which were introduced to secure a unity of sentiment as well as policy. They were the crooked paths — the remote causes leading to these troubles, and against which we had been warned. First, by WASHINGTON: In contemplating the causes which may disturb our Union, it occurs as a matter of concern, that any ground should have been furnished for characterizing parties by geographical discriminations — Northern and Southern, Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the ex-

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pedients of party to acquire influence within particular districts, is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection. — Farewell Address.

Second, by

JACKSON:

But the Constitution cannot be maintained, nor the Union preserved, in opposition to public feeling, by the mere exertion of the coercive powers confided to the General Government. The foundations must be laid in the affections of the people; in the security which it gives to life, liberty and property in every quarter of the country; and in the fraternal attachments which the citizens, of the several States bear one to another as members of one political family, mutually contributing to promote the happiness of each other. — Farewell Address.

We ask every citizen to re-read the speeches and addresses quoted from. They almost prophetically point us to the bloody end that would follow the pursuit of those forbidden paths, yet men have recklessly walked therein after these admonitions, and thus one extreme has aroused the passions of the other. Others conducting public journals, as the New York Tribune and the Charleston Mercury, long since deliberately entered into arguments and calculations to show the benefits that would be derived to the section of each by a separation of the States. These questions had, for a series of years, agitated the deliberations of Congress; but no law had been passed seriously affecting the institution of slavery; nevertheless anti-slavery sentiments had been widely disseminated throughout the free States, under the auspices of the Abolition societies of England, as can be clearly shown, that people having become jealous of our growing national fame, and knowing that no step could be taken that would sooner weaken us, by breaking us in pieces. Tracts, sermons, addresses, speeches, pamphlets, newspapers, and flags of sixteen stars, all contributed to stir up "a hell upon earth," which was made yet hotter by the passage, by various Northern States, of laws intended to interfere with the execution of the fugitive slave law, and termed "Personal Liberty bills;" and also by the Kansas feuds, in which men were presented, by ministers of the gospel of peace, with Sharp's rifles, instead of Bibles; and likewise by John Brown raids, in which the execution of a fanatical murderer and land pirate was blasphemously

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characterized as a martyrdom, second only to that of the Saviour of the world. Unfortunately for the country, when many persons were thus irritated by class legislation, and fired by this intermeddling with State institutions, by those who had not the right to do so, a purely sectional nomination was made for the highest office in the Government. Mr. Lincoln was placed before the people, and their votes sought on grounds in direct antagonism with the creed of Jefferson, and the doctrines of Washington, Jackson, Clay, and Webster. Conservative democrats appealed to voters in behalf of the Union, but were scouted at by the followers of Lincoln as "Union savers." They were powerless because ultra men of the South, taking advantage of the extremes assumed by the ultras of the North, were insisting upon platforms that conservative men could not stand upon. The ultras of the North prevailed, and this success was the IMMEDIATE

CAUSE

Of the war. Lincoln had declared that between "freedom and slavery there was an irrepressible conflict;" that a "house divided against itself could not stand," (see his Springfield speech) and, "that a Government could not stand half slave and half free." Ultra Southern men seize hold of the fact that a man holding these doctrines had been elected, by the people of the free States, as an evidence that they purposed interfering with the rights and interests of Southern men — and thus alarmed many in that region for their rights of property. — Letter of Crittenden and others to the President, July 14th, 1 8 6 2 ; Speech of Mr. Douglas, in the Senate, 1 5 t h of March, 1 8 6 1 .

The great crime of the South was in not fighting these heresies inside of the Union. They forsook the maxims of Jefferson, and would not "abide by the decision" in the election, but sought by revolution — for it is nothing more, nothing less — to cut loose from their brethren in the North, who had thus advanced step by step in unconstitutional and heretical doctrines, until they had placed in the Chief Executive chair one of such sectional views. Ultraism repeated itself, as it had a thousand times before. The people of the North gave the power into the hands of ultra men. To oppose them, the people of the South did the same thing, placed ultra men in power.

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Thus the extreme Northern and the extreme Southern factions, which for years were looked upon as insignificant, were, by the force of circumstances, placed with the reins in their hands, without much practical knowledge of how to guide, and we fear without any kind of care whether they avoided serious obstacles in their course. On the 25th of March, 1861 (see Cong. Globe), Mr. Douglas, in commenting upon the apparently peaceful purposes of the Republicans, said: That is a very good policy — a much wiser and better policy than I had expected or hoped for from a Republican administration. I do not know that I should have m a d e as great efforts to defeat them if I had thought they would have acted with as much wisdom and patriotism. Mr. Clark — You did not defeat them. Mr. Douglas — No; nor would I have m a d e as great efforts to defeat them. Mr. Clark — You did us no harm. (Laughter.) Mr. Douglas — If I did not defeat you it was not my fault. I used my best efforts to do it. Mr. Clark — You could not quite come it. Mr. Douglas — I could not quite come it, and you see the consequences. Seven States are out of the Union, civil war is impending over you, commerce is interrupted, confidence destroyed, the country going to pieces, just because I could not defeat you. N o man in America believes these consequences would have resulted if I had been successful in m y efforts to defeat you. You can boast that you have defeated me, but you have defeated your country with me. You can boast that you have triumphed over me, but you have triumphed over the unity of these States. Your triumph has brought disunion; and God only knows what consequences may grow out of it.

Conservative men attempted to stem the current that was rapidly carrying us on to the breakers. Mr. Crittenden proposed certain guarantees, by way of amendments to the fundamental law. In a grand committee of thirteen Senators, raised to consider them, they were rejected by every Republican on it. (Toombs' address of Dec. 23, 1861, to the people of Georgia. ) Objection may be made to the statements of Toombs as authority. Outside of its internal statements, its surroundings bear witness to its truth. It was published whilst he was a member of the Senate, and no member of the committee then, nor since has ever, that we are aware of, contradicted that statement. The reason given for the refusal to act was, that no attack on the rights of Southern men was contemplated.

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The South would have been content with the Crittenden compromise; so Senator Pugh of Ohio, asserted in the Senate in the presence of the Republican members, and thereupon Mr. Douglas sustained his statement as follows : I can confirm the Senator's declaration, that Senator Davis himself, when on the Committee of Thirteen, was ready, at all times, to compromise on the Crittenden proposition. I will go further and say that Mr. Toombs was also. — Cong. Globe, March 2, 1861.

The Crittenden proposition was finally defeated in the Senate on the 2d day of March, 1861, by a strictly party vote, every Republican voting against the compromise. See Cong. Globe, March 2, 1861. Upon the refusal of the committee to recommend these guarantees, hot-headed Senators notified extreme Southern governors, and thereupon forts and arsenals, the property of the United States, within their territory, were seized, and State after State committed themselves to revolutionary schemes, by withdrawing from the Union. Thus the real lovers of the Union were beaten in an attempt in which we solemnly believe they had the cordial sympathy of threefourths of the American people, North and South. An appeal to the people was asked, by permitting a vote upon the propositions. It was refused by the Republican members of Congress. Conservative men, still anxious, were still active. The border state convention was called. Radical States, not of the border, again interfered, to prevent a compromise, and sent delegates. See letter of CHANDLER, Senator of Michigan, to the Governor of that State, sent from Washington, Feb. 11th, 1861, in which he says, that at the request of Massachusetts, and New York, send delegates: They admit that we are right and they are wrong; that no Republican State should have sent delegates; but they are here and cannot get away.

Ohio,

Indiana, and Rhode Island are caving in, and there is danger of Illinois, and now they beg us, for God's sake, to come to the rescue and save the Republican party from rupture. I hope you will send stiff-backed men or none.

It was thought to be of more importance to save the party from rupture, than to save the Union, and prevent war. The voice of feeling — of passion prevailed. The judgments of men were not consulted. That which was but a little cloud, a short time before, spread fearfully — fatally.

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Mr. Buchanan called the attention of Congress to the state of affairs, in his last Annual Message in Dec. i860, and called upon Congress to devise some remedy. He disclaimed any power under the Constitution and existing acts of Congress, to use coercion. The Crittenden Compromise was the remedy brought forward and defeated. Congress adjourned leaving the matter in a worse condition than they found it, for seven States had seceded during the session. The Democracy were in a minority at that session of Congress. North Carolina, Tennessee, Arkansas, Missouri, Kentucky, Virginia, Maryland, and Delaware had refused to secede or cooperate with the States that had, unless some open act of the new administration should show its hostility to them. Under these circumstances LINCOLN

Came into power — actual power — in point of fact he had exercised control over the members of his party in Congress, from the time it was ascertained he was elected. Without doubt he could have caused the adoption of the Crittenden Compromise, even before he assumed the reins of power. His inaugural was an anomaly. Mr. Douglas, in the Senate, openly construed it in favor of peace — Speech of March 15th 1861, also March 6th 1861 — opposed to coercion. Others construed it differently. Conservative men, hoping for conservative measures, gave it a construction favorable to their wishes. Ultra men, interpreting it to suit their views, were not displeased with it. Instead of openly avowing his policy, if he had any, he appeared to be temporizing. He took no steps for the adjustment of the difficulties. He let valuable time slip by, whilst the rebels were preparing for six weeks, as they had before prepared in a most outrageously improper manner, through the official influence of Floyd. The border states men were urgent against any attempt at coercion, as it would inevitably carry their States along with the South. Two Southern Forts — Sumter and Pickens, had not been seized by Southern men, but were still occupied by United States soldiers. It became necessary to bring the soldiers away, or relieve them. The rebels had no objection to their being brought away, but did

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object to their being relieved, so as to hold the forts in their waters, as they impudently said. The President determined to succor Fort Sumter, and so notified the Governor of South Carolina. Under the excited state of feeling, as any cool headed men might have foreseen, this attempt brought on a collision of arms. Woe betide the man that fired the first gun. The President then called for seventy-five thousand men. The border States, except Maryland, Delaware, and Kentucky, turned against us, being unwilling to engage in any attempt at coercion. Armies were assembled on each side. The great battle of BULL RUN Was fought, and we were repulsed. On the next day Congress — then in session, on motion of Mr. Crittenden, Resolved: That this war was not waged on their part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor for any purpose of overthrowing or interfering with the rights or established institutions of those States; but to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished, the war ought to cease.

This was the first direct avowal of the ultimate purpose of the war; and under it an immense army was raised — said by one in a position to know, of seven hundred and fifty thousand men. The propriety of prosecuting the war, for the purposes thus avowed, did not appear to be questioned by any, in the excitement, except those who honestly believed that a government built upon the consent of the governed could not be maintained by compelling them, by force, to submit to it when they desired to make a change. And those who still believed that "war is disunion, certain, inevitable, irrevocable, I am for peace to save the Union." — Douglas's speech Cong. Globe, Jan. 3rd, 1861. The cry of NO PARTY Brought to your standard thus reared, men of all parties: Whigs, Americans, Democrats, and a few Abolitionists as privates — many as officers. Immense sums were voted to arm, equip, and maintain this vast

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army, with scarcely a division in Congress or State Legislatures. Lists of votes were no index of the former party affiliation of the voters. Cong. Globe, July loth 1861, p. 61, Yeas 150, Nays 5. After the men were in the field, and the vast sums appropriated, then another ENEMY

Boldly showed his hand. The Abolition party raised its hydra head. On last December the Senate was barely organized, when Mr. Trumbull gave notice of a bill to confiscate the property of rebels, and giving freedom to the persons they held in slavery. Cong. Globe, 1861, p. 1. In the House on the same day, several propositions of a like character were introduced, and in the language of a conservative Republican Senator Mr. Cowan, July ist, 1862, Cong. Globe, p. 2994. Hardly a day has elapsed here that some measure was not introduced relating to slavery, and which was calculated to irritate, to wound, and to alienate those loyal and willing friends from us. How is it now? The gulf which separates the loyal men from the border States and the ultra school of the Republican party, is nearly as wide on this floor, as that which separated the secessionists and Republicans of former times. Although Mr. Lincoln had avoided committing himself to a policy, yet his appointments and other acts of that character, were closely watched by border state men. Hear parson Brownlow, on the 13th of April 1861, in his paper, The Knoxville

Whig.

(He is now a pet of Northern men.)

We have become satisfied that the weakness of the President and infamy of his counsels, will result in a complete and final separation of all the slave States from the Union, and in a bloody civil war. And again: An unwise, unpatriotic, not to say reckless, abolition course is being pursued (at Washington) which will crush out the border States, and finally cause the North and the South to drift away from each other. And yet again: We were pleased with Lincoln's Inaugural, and have to record our deep regrets, that its conservative, peace-loving and sound nationality of sentiment is not to be carried out. The new Administration we feel confident will prove, in a very short time, to be an atheistical, deistical abolition swindle.

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Congress, instead of calmly considering the ways and means of getting out of all our difficulties, and feeding white men called into the service as soldiers; turned their Halls into places of meeting for two negro debating societies, in which abolition members vied with each other in inventing ways and means to benefit the negro — to feed him when he had run off — to clothe him — to liberate him — to arm him — to open schools to educate him — to place him on an equality with the white man. By this means they gave AID TO THE

ENEMY,

By singling out their property in negro slaves and striking at that in various forms, under the plea of thereby weakening them. See letter July 14th, 1862, of J. J. Crittenden, and nineteen other members of Congress from border slave States, to the President. ist. By the many speeches in Congress, in favor of abolition. 2nd. By the abolition of slavery in the District of Columbia. 3rd. The passage of a law permitting the testimony of negroes in certain cases against the whites. 4th. The repeal of the law against the transportation of the mails by negroes. 5th. The amendment of the articles of war, so as to make it a high offense for an officer of the army to return a runaway slave to his owner. 6th. The refusal to make it an offense of like character for an officer to entice away a slave. 7th. The passage of a law recognizing as our equals the negro governments of Liberia, and of Hayti. 8th. The passage of a confiscation bill — aimed at slavery. 9th. The act authorizing the President to call negroes into military service. 10th. Worse than all, the President's plan. This war is prosecuted, we suppose, upon the theory that a considerable portion of the people of the South are loyal to the Union — and that control over them has been usurped by the extreme Southern faction. The passage of some of these measures, and attempt to pass the others, gave those usurpers the very strongest arguments they could use against a restoration of our authority, namely: that the administration was determined to destroy their rights, and is pros-

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ecuting the war for that purpose. See Cowan's speech July 7th, 1862, Cong. Globe, p. 3147. Instead of weakening them, by such acts, thousands, and tens of thousands are driven to the standard of revolt. In speaking of several of these acts, among others, that authorizing the arming of slaves, Garrett Davis, the "Union" successor of Breckinridge, said: W e would regard their authors as our worst enemies; . . . we would arm every man and boy that we have in the land, and we would meet you in the death-struggle. — Cong. Globe, p. 3205, July 9, 1862; Henderson's Speech, Cong. Globe, p. 3 2 3 1 .

Every such act increases their soldiers, and at the same time lessens the prospect of any reconciliation, or re-establishment of authority, except by naked, absolute subjugation. This course is in direct contradiction to the avowed purpose for which the army was raised, as heretofore shown, and is a fraud upon the soldiers so enlisted. Merely as a sample of abolition speeches, we give one extract, when a volume might be published of like stuff: Our duty to-day is to tax and fight. Twin brothers of great power; to them in good time shall be added a third. . . His name shall be EMANCIPATION. A n d these three — TAX, FIGHT, EMANCIPATE — shall be the TRINITY of our

salvation. In this sign we shall conquer. — Pike's Speech, Cong. Globe, p. 658, Feb. 5, 1862.

Passing over the blasphemy of this gentleman, we call attention to the fact, that this member was, and is, in favor of taxing and fighting to emancipate slaves — not a word about maintaining the Constitution and the laws. This would prolong the war and burden us. It is calculated to greatly injure the loyal men in the South, who have risked everything in our behalf. It will not do to say that it does not touch their property: for it is well known that slaves, in the midst of free negroes, are comparatively worthless. To confiscate the property of Union men would be an outrage — to destroy its value is but little better. To free the negroes and bring them among us, is now out of the question, as witness, the ninety-four thousand majority in Indiana, and the overwhelming vote but the other day cast in Illinois, in favor of their exclusion. This confiscation invention is calculated to do us, therefore, more

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harm, among loyal men in the South, than either of the others. No confiscation measure would have passed, or have been entertained, but for the hope of thereby abolishing slavery, either partially or wholly. And upon the power to do so Mr. CLAY, in his speech of the 7th of Feb. 1839 says: The Constitution of the United States never could have been formed upon the principle of investing the General Government with authority to abolish the institution at its pleasure. It can never be continued for a single day, if the exercise of such a power be assumed or usurped.

It is not proposed to sell the slaves, to re-imburse the expenses of the war — but merely to set them at liberty. This all the border State members join in denouncing, as an act tending to strengthen the revolt. See letter of Crittenden and others. Thus far as to its policy — so far as the slave is involved. As to the effect in seizing other property, Mr. Cowan said June 28th, 1862, in a speech Cong. Globe, p. 2994: As to the expenses of the war, pass this bill, put it in execution as far as you can, and you will never realize from it enough to pay the expenses of its administration.

That is, not one cent will go into the Treasury. It will only feed a horde of greedy office seekers, in administering it. As to the legality of such act of abolition — for it is nothing more, disguise it as they may, we know of no respectable authority sustaining it. We have already shown the whole question is under State control. But it is assumed that it can be done under the war power of the government. It is admitted that in time of peace no such power exists under the Constitution, nor is there any direct grant of power, in this respect, different in time of war; but it is said that it ought to belong to the government as a necessity. ABOLITION VIEW

The craziest of the whole crazy pack of abolitionists in Congress — Senator Sumner, who is their acknowledged leader, for with them, the most fanatical is considered the worthiest: we say this man, but recently, declared, in his place, that the Constitution is made for peace and not for war, and that:

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War, as it comes, treads down within its sphere all rights except the rights of war. Born of violence, and looking to violence for victory, it discards all limitations, except such as are supplied by the rights of war. Once begun, war is a law unto itself. And just in proportion as you seek to moderate it by constitutional limitations, do you take from war something of its efficiency. — Cong. Globe, p. 2964.

In this short quotation is disclosed the reason that many ultra men and political papers at the North, at first opposed to coercion — to war; suddenly became converts to the war policy; of these the New York Tribune, and Indianapolis Journal, are fair samples. And although the President may be, as this Sumner wrote to a friend, June 5th, 1862, ( See New York Tribune, June 16th, 1862, ) at heart with them, yet his vacillating course has at times called down their anathemas, as in the Cincinnati Gazette of July 7th, in which the elements of his character are declared to be "milk and water." Tolerably weak dilution. At the close of the last war with England, and afterwards, those in a position to act were instructed, Mr. J. Q. Adams being Secretary of State, to insist upon remuneration for slaves, seized during the war, on the ground that the rules of international laws of confiscation did not include them. But now these men who hate slavery, more than they love the Constitution, and prefer that slavery and the Constitution shall die together rather than that both shall live — Browning's speech ( Rep. ) Cong. Globe, p. 2923 — and who would drive emancipation as a condition to their furnishing men, (see letter of Governor Andrews of Massachusetts, Cong. Globe, p. 2391); we say these men have sprung this new fangled doctrine, that a war makes laws unto itself: and one of the laws of this war is that the property of all southern men, in slaves, shall be confiscated, and the slaves set free. By this means the ultra men hope to evade the Constitution, and effect that which they have otherwise failed to accomplish — the abolition of slavery. For without this stroke at slavery, no confiscation bill would have troubled Congress for a single day. Again: by Article 4th, of the Constitution it is provided that: The United States shall guarantee to every State in this Union a republican form of government; and shall protect each of them against invasion; and on application of the Legislature or of the Executive, (when the Legislature cannot be convened) against domestic violence.

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And further: Congress shall have power: To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, &c — Sec. 8, Art 1.

If it is true, as we have attempted to show, that, from the middle of December to the 4th of March, valuable time was suffered to pass by during the administration of Mr. Buchanan, for the alledged want of authority to act, and an opposition Congress failed to confer that authority, and if the administration of Mr. Lincoln, in like manner from the fourth of March to the middle of April, lay by and suffered a provisional Government to gather strength in the South — not for the same excuse Mr. Buchanan gave; for it was admitted steps were eventually taken not warranted by law, ( Trumbull's speech, Cong. Globe, p. 2974,) we say if the then loyal inhabitants of the South — with all their family ties and property interests confining them to that section, were thus left without the protecting arm of the federal government, and subject to the rule of the usurpers; then this government was not without blame, as declared by a Republican Senator — Mr. Cowan, Cong. Globe, p. 2962. Personal and property rights require some kind of government to protect them; and if this government will not, or cannot protect its loyal citizens within its limits in those rights, then if they acquiesce in or seek protection under a government apparently acting by color of authority, it is a question whether they should be held criminal to the extent of being punished by the deprivation of all their property — which would fall upon the helpless as well as the guilty — upon women and children as well as the guilty head of the family. We are not speaking of the leaders of this rebellion, but of those who have been forced into it by circumstances, and will be kept there by the force of the same circumstances, notwithstanding all the proclamations Mr. Lincoln may issue, unless our armies advance and read them to the enemy. This view is the more serious from the fact that such loyal citizens, if they had continued to hold out against the usurper's power, would have been deprived of their liberty and property by that power, if the statements we have heard of the persecutions of Union men are true. Let us be just towards such persons "though the heavens fall." Let us not drive them to desperation, as British officers, in the Revolutionary war, drove those who had sought protection, lest the same result follows, to-wit: the filling up the armies of the rebels, and enabling them thereby to triumph. — See Life of Marion, p. 114.

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Further, if we are to be governed by the rules governing civilized nations upon this subject, the question has already, as a legal one, been decided by the Supreme Court of the United States, 7 Peters, 87, in an opinion pronounced by one of the ablest judges that ever sat upon the bench — Chief Justice Marshall — who made use of this language: It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to 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 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.

In this war there can be no conquest for the reason that so far as, under the Constitution, any right of dominion could exist over the territory, the Government already possessed it, in law, and had only to exercise it in fact, by displacing the so-called Confederate Government, and enabling the people to again acknowledge that right. In accomplishing this object, even by force, there can legitimately exist no greater right to seize or control private property, of those rallying under that flag, than if the war was against a foreign power. That far we have the right to seize any property — be it in slaves or in horses — and use it for the purposes of our army, in the necessary preparations to suppress the rebellion. We have discussed this question, thus far, as affected by law and by policy. It incidentally involves, also, a point of honor, of good faith, so far as our rulers are concerned. Mr. Lincoln, when a member of Congress, announced the following as being his settled views: Any people anywhere, being inclined, and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable and most sacred right — a right which we hope and believe is to liberate the world. Nor is the right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize and make their own of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingled with or near about them who may oppose these movements. — Appendix Cong. Globe, 1 8 4 7 - 4 8 , p. 94.

It looks as if the Southern men were inclined to rise up, and as if they had some power.

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After the knowledge that the man holding these sentiments was elected, these rebels began to "move," threatening to "rise up and shake off the existing Government." Then, on the gth of November, i860, the N e w York Tribune, three of whose editors have since been chosen to fill high stations by Mr. Lincoln, held this language: If the Cotton States shall become satisfied that they can do better out of the Union than in it, we insist on letting them go in peace. The right to secede may be a revolutionary one, but it exists nevertheless. . . . We hope never to live in a Republic whereof one section is pinned to another by bayonets. And again, December 17, i860: If it (the Declaration of Independence) justified the secession from the British Empire of three millions of colonists in 1776, we do not see why it would not justify the secession of five millions of Southerners from the Union in 1861. Column after column, to the same purport, running through several months, might be republished from that paper. So the Indianapolis Journal heretofore published a series of articles, commencing after the election of Lincoln by the people, and before any State had seceded, and running through several months, insisting upon letting the Southern States go, if they desired to do so. W e have only room for two or three extracts as samples of the whole : They know very well that if they are determined to leave the Union, no Republican will care to have them stay. If South Carolina and her associates in folly really want to leave the Union, they can go without a word of objection from any man north of Mason and Dixon's Line. We would not turn our hand over to have them stay, if they must stay with a feeling of hostility and distrust which they proclaim as the only feeling they can ever hold towards the North. . . . We do not believe in resisting any secession movement in the least. Those who think the Union too bad for them to endure, are just those the Union can best do without. Let all go who want to, we say, and let them go quietly.—Journal, 13th of Nov. i860. Again, on the 21st of August, 1 8 6 1 : If they (the rebels) will lay down their arms, and come now to the nation for permission to separate, we shall again say, "yes;" for we have seen no reason to change the views we advocated last winter. So the Chicago Tribune, of December i860, and the Cincinnati Commercial of March, 1861, and previous thereto, contained many articles to the same effect, as may be seen by examination. If this was not opening a correspondence with the South, to procure dis-

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union, as proposed by the resolutions of 1859, we confess we cannot see the purpose in view. Look a moment at the situation. Mr. Lincoln had been elected to the Presidency, entertaining these views of the right of revolution. His leading party papers — the editors of which he rewards — still insisted upon the same right, as applied to the South. Portions of the people in that part of the United States have not been protected by the Federal arm for a year and a half. Men disposed to be loyal, but looking to these views of the President and his friends, have expected an ultimate recognition of the usurper's government, which had immediate control over them, and so have been seduced into its support, because it appeared to act by color of authority — at least had the power to command them — and the Federal Government did not come to their relief: The fact is, that a de facto government has been established there so long, that men who were at first unwilling to yield obedience to that government, who put it off for six or nine months, have finally been compelled to yield. — Henderson's (Union Senator of Missouri,) Speech, Cong. Globe, p. 3 2 3 1 , July 10, 1862.

Are they now to be treated as criminals because they have acted in accordance with the suggestions of those who are now our rulers? Are we to take advantage of our own wrong? For if the revolution is wrong, these suggestions were also wrong. And we can not, and do not, in view of the existing state of affairs, indorse these sentiments; if we did, the conclusion would inevitably follow, that the revolution is right. It appears to us, as a mere matter of right, that those who did advocate such views, as applied to the present state of affairs, should not be so open mouthed now for the plunder of the very men some of whom, for aught we know, were by them influenced to act. Allegiance and protection are reciprocal: the one ceasing when the other is withdrawn. — J e f f e r s o n ' s Works, vol. 1, p. 1 2 .

We cannot believe that it is possible, that these men were so lost to humanity as to have been then acting on the doctrines of Lord North, in reference to our fathers, namely: That a rebellion was not to be deprecated — that the confiscations it would produce, would provide for many of their friends. — Jefferson's Works, vol. 1, p. 89.

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As to the abolition of slavery in the District of Columbia, Democrats have, from the foundation of the Government, denied the power of Congress to pass such an act. Eminent men, opposed to the Democracy, whilst they have insisted upon the right, have, like John Q. Adams, declared it would be bad faith towards the South, and especially towards Virginia and Maryland, from whose territory the District was carved. It would create an asylum for free negroes — a city of refuge in their midst. The act was performed as an entering wedge to a more extended system, and it was in that view of the subject, we suppose, that one of our Senators declared, it was the greatest victory that had been achieved during the war — that is, that taxing white men to buy and free negroes, was more to be lauded than the acts of our brave soldiers on tented fields. As to the question of arming the slaves, we do not desire to enter into any lengthy argument, but among the many objections that crowd themselves forward, we would suggest the following: 1. Such step is an acknowledgment, before the world, that the white men of the North are not able to contend successfully with the rebellion. 2. To place our white soldiers side by side with negro slaves, is degrading to the white by equalizing him with the black. 3. In some of the slave States the blacks are more numerous than the whites, and loyal Southern men testify that if you mass them together, and place arms in their hands, they will not fight like civilized men, but will savagely slaughter women and children, and can not be restrained. Davis's speech, Cong. Globe, p. 3204, July 9, 1862. In the original draft, by Jefferson, of the Declaration of Independence, Jefferson's Works, vol. 1, p. 19: "One great complaint against King George was, that he had permitted negroes to be brought in against the will of the colonists, and was then attempting to incite them to take arms against their masters." 5. In the Convention the New England States, that are now the most ultra, voted to extend the time for the continuance of the slave trade, and availed themselves of that time to reap heavy profits in furnishing slaves to the South, and now propose putting arms in their hands to cut the throats of those who bought them. 6. A white soldier, as we elsewhere show, costs us something over

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eight hundred dollars a year. Under this bill if a negro is employed his mother, his wife and his children are to be free upon compensation being made to the owner, if loyal. That wife, mother and children, at a reasonable rate might be worth $1500 — and that sum is, therefore, offered as a premium, for one black soldier, who, more than probably, will run off at the first fire. 7. It is no argument for the employment of negro slaves against their masters and families, to say that Jackson called upon the free negroes and mulattoes at New Orleans, or that Washington called upon them in his retreat from the Jerseys — to which Rhode Island responded; because in each case, they were led against men, soldiers, a foreign foe — no women and children to suffer by their brutality; and again in each case there were so few — In Rhode Island less than two hundred capable of bearing arms. — Census of 1790. And in Louisiana but few free, and slaves were not called on: they could be restrained. We have not, nor do not, offer any objection to their being taken as other property, when necessary, by commanders, to dig or build entrenchments &c, and to be sent back when they have done the work; as has been often done already during this war. Although the various acts passed and to which we have referred all received the approval of the President, yet he so intermixed them with plausible excuses and promises to conservative men, that many were in doubt about his real sentiments — especially in view of his recall of Fremont, and reprimand of Hunter, because of their abolition proclamations. Yet, at length, a step was taken which, for the first time disclosed the length and breadth of the PRESIDENT'S POLICY.

It is no more nor less than general, universal abolition — abolition to be effected by the toil and labor and sweat, through untold years, of the white men of the North: to purchase and set free the ignorant, lazy black bondmen of the South. The proud Anglo Saxon race are to make themselves — their children and their children's children, to remote generations, slaves to the tax gatherer; and for what; to satisfy a spurious fanatical philanthropy — to satisfy a craving desire, of puritan origin, to attend to every man's affairs except your own. To make good a false political maxim. "That a government can't stand half slave and half free." On the 6th of

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March, 1862 (Cong. Globe, p. 1102), the President in a message proposed to Congress to pass the following joint Resolution, which in substance was passed. That the United States ought to co-operate with any State which may adopt gradual abolishment of slavery, giving to such State pecuniary aid, to be used by such State in its discretion, to compensate for the inconveniences, public and private, produced by such change of system.

Again: upon repudiating Hunter's proclamation, the President renewed his suggestion, and yet again, to the border slave State men, and in sending in a bill to both houses to that effect. Cong. Globe 3323, July 14, 1862. It would appear that this was the wild dream of one man, and yet it was approved by a majority of Congress — Republicans, so that it has become the doctrine of that party. Cong. Globe, p. 2907, June 25th, 1862. It is open to many objections: 1. There is no authority conferred upon the general government, by the Constitution, to become a slave dealer — to buy and sell, or buy and free the slaves of any of the inhabitants of any of the States, or of any other government. If, without such authority, we can be compelled to buy the slaves of any of the States of this Union — why not those of Cuba or Brazil? Where is this thing to stop? We have shown that on this question of slavery the several states are as independent of each other, and of the general government, as if they were a foreign nation. Where is this false philanthropy to end, but in our own degradation. It is a false theory that we can sustain the government by disregarding the Constitution. This is worse than the Caesarean operation, by which the life of the parent is often sacrified to save the child; because here the death of the Constitution would destroy its offspring — the government. 2. It would create a debt we never could pay. The value indicated by Congress in the bill abolishing slavery in the District of Columbia, is three hundred dollars per head — and this sum is not near the average value of slaves before this war. There are about four millions. That would give twelve hundred millions of dollars. To carry out of the country and provide a place &c, for them would cost over one hundred dollars per head more — which would be four hundred millions of dollars — being together sixteen hundred

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millions of dollars. We already owe as we will hereafter show, about fourteen hundred millions of dollars. A million! Reader do you readily comprehend the magnitude of the numbers? The Sun is computed to be ninety-five millions of miles from the Earth — not one sixteenth of the aggregate sum here named. It is calculated that if there was a railroad track from the sun to the earth, and a locomotive should now start, at the ordinary speed, from that point to this, and make no delay between points, that the new born infant would grow to man's estate — live his three score years and ten — his son might succeed him — his grandson, and yet his great grandson might each live his allotted time upon earth, and still neither of them would be here, to witness its arrival. With the vast debt this war has involved us in, it is not pretended we could pay for these negroes for years to come; it is therefore, proposed that we shall give United States bonds bearing interest. At six per cent, sixteen hundred millions would be ninety-six millions. This would be over twenty-six hundred and fifty two horse wagon loads of silver, one ton each, that would be our annual tax to the slaveholders of the South. It would be a beautiful sight to see, each year, the blood, and sweat, and toil of the white men of the north gathered into a train of two thousand six hundred and fifty wagons, fourteen miles long, as our tribute to the fell demon of abolition! May GOD in his infinite mercy save us from such a fate, and such a sight. Against such an absurd and wicked proposition the Democracy of Indiana now solemnly protest. Absurd, because it is impossible to accomplish it and leave us free men. Wicked, because it would necessarily make the white race slaves for the black: which is in direct antagonism with the decrees of providence and order of nature. The white race is the superior — the black the inferior. If any white man thinks the negroes is his equal, we will have no controversy about it with him. Perhaps so far as he is concerned his theory might be admitted. Believing we are the superior race, we are not willing to be taxed for the benefit of the inferior, to the extent of buying him, and supporting him in idleness. For it is well known that with the negro, the idea of freedom is always associated with exemption from labor. 3. If freed he could not come among us, as heretofore shown.

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He could not remain where he is without there being a war of races, in which the one would eventually extinguish the other. The scenes of St. Domingo would be re-enacted. In St. Domingo, the standard — in place of a flag — under which the slaves fought, was the body of a white infant impaled upon a stake. (Edward Everett's oration at an anti-John Brown meeting in Boston. ) See also Brown's history of that Island. No civilized Christian can, without horror, contemplate such a scene. A barbarous abolitionist, like Giddings, would glory in it. I would not be understood as desiring a servile insurrection; but I say to Southern gentlemen, that there are hundreds of thousands of honest and patriotic men who will laugh at your calamity, and will mock when your fear cometh. — See p. 160 of Giddings' Book of Speeches.

4. If in some of these things we are mistaken — and if the negro would be permitted to remain in this country, and to come among us, in tens of thousands, and would labor — then the competition would reduce the price of labor — the wages paid, to a mere nominal sum. And with all our civilization we insist the contact between the white and black laborers, upon terms of equality, would bring nothing but evil in its train, to the whites. These are but some of the many reasons that might be urged against this administration scheme. Can it be asserted as an undeniable truth, that if the President had notified the people, in advance, that this war was to be prosecuted to effect these several abolition schemes; that not one third of the soldiers now in the field — and those lying beneath the clods of the valley, or whose bones are bleaching on distant battlescarred fields, would never have volunteered. Did they not as true patriots — lovers of their country — rush to the standard to fight for the Constitution, not for abolition? Let us turn for a moment to other questions connected with the prosecution of the war, and see if the action of those in power has been squared with the creed of Jefferson as to the exercise of ECONOMY.

It is a truth — a shameful truth — that there is not a single officer of the Administration who can, or if he can who will, in his official statements, even approximate to an estimate of the amount of our indebtedness.

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The truth is, there is none of us who know anything about it. We can come within a hundred million of it, probably, and not nearer. — Grimes' Abolition Speech, Cong. Globe, p. 2474, May 31, 1862.

Again: I predict that our indebtedness will amount at the end of the year to $1,500,000,000.

When the leaders have desired large appropriations by Congress, they have repeatedly stated, upon the floor, that our expenses were as much as three millions of dollars per day. ( Cong. Globe, Jan. 13th, 1862; April 8th, 1862; Feb. 6th, 1862; Feb. 20th, 1862.) This would make the aggregate of over one thousand millions per annum. It is now fifteen months since these immense expenditures began, and would therefore give at that rate about fourteen hundred millions of dollars. If the war was to end to-day this would not be all, for there would rest upon us an obligation to provide for disabled and other soldiers, and families of soldiers, to an indefinite amount. So that the end cannot be seen. It may be safely stated that the child is not yet born that will cease to meet the tax gatherer in his ever returning rounds, exacting the annual products of our toil, for what? If to pay the just expenses — the PATRIOTIC SOLDIERS.

Of the war — it will be rendered without a murmur, by all good citizens. But if it is not for the use of the soldier, and is to satisfy unjust demands, then the toil work tax-payer should hold to a strict account the men in authority who, in addition to the immense sums necessarily raised for the war, have carelessly, or criminally, suffered unjust debts to accumulate. The appropriations for the Army alone, for the year beginning the ist of July, 1862, are at the rate of $820 for each soldier, assuming that we continually have a standing army of over six hundred thousand men, and the expenditures have been at a greater rate for the past year. The soldier don't get it: every man knows that. What becomes of it? Who takes it? Is it stolen? Committees raised by Congress, and Commissioners appointed by the President, have reported facts establishing a system of barefaced rascality, in handling the money of the people, that never had a parallel in any Christian nation. Some of them, it is presumed, are

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of so monstrous a character, that the President has refused to have them published, by responding to a call to that effect, that the public interest forbids. Official duty, obligation, and oaths, have been but ropes of sand in preventing officers of this Administration from seizing the public moneys. Public contractors have in every possible way cheated the Government — the people; and thus delayed the war. Scarcely an article can be named for the use of a soldier, or an army, that the finger of fraud has left unharmed. Wagons, horses, provisions, clothing, camp equipage, arms, ammunition, have all been furnished of a worthless character, at enormous prices, through the perfidy of paid officers and inspectors. Inquiry has been, to a great extent, smothered, and punishment in no case awarded, because connection in the illegal transaction can be traced directly to those in authority — even to members of the Cabinet, as shown by the report of the Naval Committee of the Senate, and the speech of Senator Hale. The Chairman of an Investigating Committee declared in his speech, in the House 7th of February, 1862: The mania for stealing appears to have run through all the relations of the Government. Almost from the General to the drummer boy, from those nearest the throne of power [Cabinet officers] to the merest tide waiter. Every man who deals with the Government appears to feel or desire that it would not long survive, and each had a common right to plunder while it lived. . . . The example has been set in the very departments of the Government. As a general thing, none but favorites gain access there, and none other can obtain contracts which bear enormous profits.

Senator Hale, in speaking of the fraud of Morgan, the brotherin-law of Welles, the Secretary of the Navy, by which he pocketed $70,000, says: I have no doubt that if some of the investigating Committees go on, they will find that there have been transactions compared with which $70,000 was a small sum; and that it will be considered ungracious to call up one of these petty offenders that have taken only $70,000 and deal with him when there are others going off staggering under the load of hundreds of thousands.

So Dawes, of Massachusetts, states that the evidence shows plundering in the first year of Lincoln's Administration to an amount greater than the whole expenses of Buchanan's Administration for a year. These are Republican authorities, and are fully sustained by the

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general facts, namely, that the plundering has been so extensive; that each soldier in the field has cost the Government twice as much, per annum, as during the last war with Great Britain, or the war with Mexico. As before stated, these frauds have been traced to members of the Cabinet so strongly that one — Cameron — resigned, after which, the House of Representatives passed a resolution censuring him — but showed their servility by refusing to censure Welles for he was yet in power, with patronage to bestow. With these facts staring him in the face, the President, instead of causing offenders to be punished, with a kindness towards Cameron truly refreshing, assumed his unworthy acts, and appointed the offender to still greater honors. No man is prosecuted, no man is punished for the crimes that blacken humanity itself — that starve and freeze our brave soldiers — that leave them, as the 7th Indiana was left, to trace the road with blood from their shoeless feet, in pursuing the enemy. But we are told, "It is no time now to inquire into these things." Better say, "It is no time now to steal." No loyal man will steal from his Government directly — from the soldiers indirectly; and if any man does he should be exposed, that he may be punished, if the authorities will mete out punishment, and if not, that he may be known and avoided as one employed in the business of aiding the rebellion. A Committee on War Claims, whose reports are, by the President, to a great extent refused to the public, have shown that Senator Simmons, of Rhode Island, an original no compromise man, has been selling himself — that is, for his influence with the Administration in procuring a contract for his friends at high rates, they were to give him a part — only fifty thousand dollars — one dollar on each musket they were to make. It would be supposed by all honest men that such a knave and hypocrite would be kicked out of the Senate at once. He is a Republican — a majority of the Senate are Republicans, but we believe not thieves. Still they shielded this thief, and thus made themselves parties to his crime. Having thus briefly, yes briefly indeed, from the vast material that is before us, considered the points proposed to be included,

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we are prepared to examine whether, in our judgment, the course pursued has been the proper one. CHAPTER IV It is clear to us that every wise and cool-headed statesman, who had at heart the "perpetuity of our government and the integrity of the Union," and who, as each well informed American no doubt did, fully comprehended the causes which had operated to produce the excited state of feeling that existed, at the time Mr. Lincoln was inaugurated; would at once have seen that both factions must be repudiated. That which desired to strike at slavery through the Governmental authority; and that which claimed the right to withdraw States from the Union to avoid such expected attack. The last named faction was threatening to place itself in opposition to the government by open war. The other was preparing to sap the foundations by subverting the Constitution. Each should have been placed at defiance by a firm, manly stand upon the "Constitution as it is, and the Government as it was" — the government of our fathers. The result would have been that the lovers — the true friends of the Union would, everywhere have rallied to the support of the government. Faction would have been rebuked — disarmed. The leaders left without followers. The great conservative masses of the people, North and South, would have controlled. The border slave States had refused to secede and would have been with us. Seven extreme States would have been left alone — and even they might have been saved at an earlier period from withdrawal. This would have put the base of operations — the line of context, south of Arkansas, Tennessee, and North Carolina; and, better than all, would have given us the cheerful support of those, and all States North of them. The Gulf States seeing this union of the free, and division of the slave States, would not have proceeded to the extreme of making war, for the cause of the strife — the anticipated ultraism of the new administration, would have been removed, and no excuse would have existed by which the leading usurpers could have rallied the people. The Executive and Legislative branches of the Government — forgetting party for the time being, should have bent their whole energies to put down both factions. Indeed that was ostensibly the position assumed by those in power, and the cry

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of "no party" went forth, as heretofore shown. But it was, so far as abolitionists were concerned, the false and simulated cry of the Panther, to deceive and delude. Their adoption of Mr. Crittenden's resolution, on the day after the battle of Bull Run, was the result of a general scare, and did not express their real principles, for proof: I have no doubt there are gentlemen here in favor of subjugation, and were from the first, because almost every thing that they have done since then, has indicated, that this was their original idea. — Mr. Cowan, July 7th, 1862, Cong. Globe, p. 3144.

And again: This doctrine of the right of conquest is precisely the doctrine which was held by the Parliament and King of Great Britain in our revolution. — id. 3143.

As we have all along attempted to show this position is in direct opposition to that which was ostensibly assumed at first, and which in good faith ought to have been assumed and proclaimed in so clear a manner that the "wayfaring man though a fool might not err" in regard to it. The rescue of the loyal men from the control of usurpers — the restoration of the rightful authority of the government— the maintenance of the Constitution and the laws, should have been inscribed upon our banners; and should have constituted the narrow way in which we walked forth purified of the evil which was upon us. Those ultras disregarded their own avowals, after the scare was over, like the sow they returned to the wallow, and like the dog to his vomit. They forgot the maxims of Jefferson to do "equal and exact justice to all men of whatever State," and the "support of State Governments in all their rights," and now insist not upon restoring the government, but on subjugating the Southern people — abrogating the state governments and reducing them to mere provinces — thus depriving the loyal men of their most inestimable right, that of self government. Sumner's Resolutions Cong. Globe, p. 736, Feb. 11th, 1862. Whilst those in power should have thus placed themselves, and acted, towards the people of the rebellious States — and the no less guilty disunionists at heart, in the North; they should at the same time have seen that the patriotic and loyal men were protected in all their rights, and that they were not borne down by unjust laws, burdens and taxes.

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We solemnly believe that if this course had been adopted by the administration, upon its accession to power, the war might have been avoided. And even after the battle of Bull Run, if the resolution then adopted, and under which eighty thousand loyal men flocked to the flag of the Union from the border slave States, had been followed by an inflexible, unswerving devotion to the Constitution, opposition would have melted away like snow before the sun. If the purposes avowed in that resolve had been strictly pursued — discarding, as unworthy of a great people, all attempts at inforcing mere factious views, opposition would have disappeared in all the South, as it did for a time in Missouri, Maryland, Western Virginia, Kentucky, and Tennessee. See letter of 14th of July 1862, of Crittenden and others, above quoted. But instead of this, men mistaking the throbbings of partisan heat, for the pulsations of patriotic hearts, have insisted upon inaugurating and inforcing their peculiar party views, at this moment of our country's peril — and, most unfortunately, the very views that southern leaders insisted would be enforced, and from which they have influenced their people to attempt an escape by secession. They voted down a re-affirmation of the Crittenden Compromise Dec. 4th, 1861, Cong. Globe, p. 15, and voted down Allen's Resolution that "no taxes were to be levied to wage the war for emancipation," Jan. 20th 1862, Cong. Globe, p. 399. And also voted down Mr. Holman's Resolution, "That the war should not be prosecuted for any other purpose than the restoration of the authority of the Constitution." March 3d, 1862, Cong. Globe, p. 1042. Upon all such schemes calculated to produce further alienation, and tendering reconciliation almost a vain hope, the administration should have at once frowned — placed the seal of condemnation. This would have compelled their advocates to abandon them, or place themselves in opposition to the Government on questions touching the war. To the reverse of this the administration has lent a willing ear, until, says Mr. Wickliff of Kentucky: It is now the avowed doctrine of the majority in Congress, whether they are elected as Republicans or Abolitionists, that this war shall not cease, nor the Union be restored, until every slave in the United States shall be emancipated. — Letter July io, 1862.

And as a consequence of Congress having embodied their partisan, abolition views in laws, we have lately had an alarmed

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Southern border from the uprising of people in Tennessee and Kentucky — and which shadows forth but the beginning of the end, if such abolition course is persisted in. But, says a zealous home war man, a contractor, or a Federal officer, "Who would compromise with traitors with arms in their hands?" Let history answer. During the Administration of Gen. Washington — and we believe he was a greater man than Mr. Lincoln — an insurrection broke out in western Pennsylvania. He sent, aye, accompanied, an army to put it down. The proper course to be pursued was debated in his Cabinet. It was a matter of serious consideration, because, as early as midsummer, 1794, several counties in western Pennsylvania, Virginia and Maryland organized opposition to a law of the United States, termed the excise law — and men in large numbers, in one instance as many as 7,000 armed men, had assembled at various times and places, seized the mails, assaulted and maltreated the United States officers, burnt some of their property, and otherwise set the laws at open defiance. Men were killed, many wounded. President Washington called out the militia of Pennsylvania, New Jersey, Maryland and Virginia to the number of 15,000. The movement of the troops was fixed for the first of September. Meanwhile, three commissioners, appointed by the President, Senator Ross, Bradford the Attorney General, and Yates, one of the Supreme Judges of the State of Pennsylvania, were dispatched to the insurgent counties with discretionary authority to arrange, if possible, any time prior to the 14th of Sept., an effectual submission to the laws. — See Hildreth's History of the U.S., vol. 1, 2 d Series, p. 498 to 516, for facts in full.

In October, Findly and Redwick were appointed by the insurgents, commissioners to convey to the President certain resolutions to which they had come, and The President treated Findly and his brother ambassador with courtesy, and admitted them to several interviews. — pp. 5 1 2 - 1 3 .

So when an insurrection was threatened in Utah, by the Mormons, but a few years ago, an army was sent there by the General Government at an immense expense, but accompanied by commissioners (Lazarus Powell and Ben McCulloch,) to adjust, if possible, the differences. They did adjust them, and our army returned, as in the instance under Washington, without striking a blow. So Douglas said on the 15th of March, in the Senate:

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Have we a government is the question; and we are told that we must test the question by using the military power to put down all discontented spirits. Sir, the question, have we a government? has been propounded by every tyrant who has tried to keep his feet on the necks of the people since the world began. When the Barons demand Magna Charta from King John at Runnymede, he exclaimed, have we a government? and called for his army to put down the discontented Barons. When Charles the First attempted to levy ship money in violation of the Constitution of England, and in disregard of the rights of the people, and was resisted by them, he exclaimed, have we a government? "We cannot treat with rebels; put down the traitors; we must show we have a government." When James II. was driven from the throne of England for trampling on the liberties of the people, he called for his army and exclaimed, let us show that we have a government. When George III. called upon his army to put down the rebellion in America, Lord North cried lustily, "No compromise with traitors; let us demonstrate that we have a government." . . . Sir, when ten millions of people proclaim to you, with one unanimous voice, that they apprehend their rights, their firesides, and their family are in danger, it becomes a wise government to listen to the appeal, and to remove the apprehension.

Thus we have shown the history of the country — the causes of this war — the course that has been pursued — the course we think ought to have been taken — and now we propose further to examine, in this crisis, the DUTY OF EVERY PATRIOT.

Yes, patriot; one who loves his country — not one section over another — not his party — but his whole country, and all good citizens in every part of it. To such we have a word. As already shown, the country had acquired unexampled prosperity, under the creed of Jefferson, administered by members of the party he founded — the DEMOCRATIC party. To that all eyes were turned, and it was determined to RE-ORGANIZE THE DEMOCRATIC PARTY.

Against this, of course, those in authority, and their subservient tools everywhere, protested and gnashed their teeth. And why? Their craft was not only in danger to be set at naught, but the great temple of Republicanism itself might be despised by the people. The Democracy — those who love the whole country, the Constitution, the time-honored usages of the Government, heedless of the contractor's cry of "sympathy with the rebels," of the Abolition howl of "treason," of the tyrant's threat of a "military necessity for

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imprisonment," will boldly but calmly invite their countrymen to behold the deep wrongs and bleeding wounds inflicted upon that country by Abolitionists and Secessionists — and more : the bungling surgery, the fatal quackery, of those who are opening wider, instead of binding up, those wounds — the men in power. Democrats felt less reluctance, in taking this step, because it was seen to be necessary to save the country in the war, and believed to be absolutely required to save us from a despotism at the end of the war. Whilst Democrats had in good faith, for the time being, cast aside party feelings, their old political foes had availed themselves of the opportunity to put in force almost all the measures that had been often discussed before and repudiated by the people. 1. A high protective tariff law, for the benefit of the manufacturers of New England and Pennsylvania. 2. An immense issue of irredeemable paper money, thereby driving gold and silver out of circulation. 3. A law abolishing slavery in the District of Columbia, thereby alienating loyal men in the South. 4. A law prohibiting slavery in the Territories now, or hereafter to be formed. 5. In every form conferring upon the Federal Government more strength. 6. Abandoning our settled policy governing intercourse with foreign nations. 7. They virtually repealed the sub-treasury law, requiring the payment of Government dues in gold and silver; thus striking down at one dash all the labor of Gen. Jackson for the last four years of his administration, in reference to giving the people a sound currency. THE TARIFF.

Tariff means, simply, tax. A law, levying a tariff upon importations, is merely a designation of the rate at which certain named articles shall be taxed, before they can be admitted into this country for sale. Most countries levy this tax to raise revenue, instead of levying a direct tax on the people. Sometimes, when it is desired to favor a home interest, a heavy tax, or tariff, is laid upon every article coming into the country that will interfere with that interest. Now, it has come to pass, that, under a revenue tariff system, manu-

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factures had sprung up in portions of this country in which most articles consumed by agriculturists were made, to some extent — but, as to many articles, not in as great quantities as we needed; consequently we were supplied from abroad. This was so as to many of the cotton, mixed and cheap woolen fabrics — as to many articles of cutlery, and in the edge tool line. Other articles are not made or grown at all in this country, and consequently we obtain them abroad; as some kinds of steel, coffee, tea, &c. It is manifest that, as to all the latter class, every cent that is added, as a tax, comes eventually out of the hand of the person who consumes the article. This we can see by the present price of coffee, compared with that of two years ago. As to our home manufactures, when they could make an article, and put it into the market in competition with the foreign article, with small but reasonable profits, we have no complaint of the law that levied a tax for revenue alone, on the foreign, for this tended to build up manufacturers at home. But these home manufactures become so powerful — so much wealth invested in them — so many politicians interested in them, that, when this Administration came into power, they controlled it on that and other subjects. They, therefore, insisted upon obtaining a law — not to raise the most revenue that could be raised — but a law to protect them — to prohibit the introduction of articles that would compete with them, or at least to compel those who did introduce such articles to pay so high a tax for the privilege of introducing them that the price would be made much greater. This would enable them to raise the price of their manufactured articles, and would thus give them so much more profit. — Wayland's Political Economy, p. 134. Upon many articles of the coarser fabrics of dry goods, the tax levied was so high that foreigners could not bring the articles into this country, and consequently our home men had their own way of it — there was no longer any competition from abroad. THE MORRILL TARIFF

Thus passed, and as amended by this Republican Congress, we will venture, is the most outrageously burdensome law — grinding, pressing upon the agriculturist, that ever was passed by any Congress. We might go into extended particulars, and produce comparative tables of figures, to show that fact; but why the necessity,

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when every man can see the effect for himself, who may go to buy a yard of domestic, a yard of calico, a yard of that which was, but is not now — cheap flannel. Everything a man eats, or drinks, or wears, that he does not make himself, is taxed by this bill, or the price put up because competition from abroad is shut out, and foreigners are not permitted to send them into this country for sale; even the salt we put in our bread feels this law. It has operated injuriously upon Western interests at a time when we were illprepared to meet it. To a great degree, our trade in produce had been with the South, exchanging our grains and meats, horses and mules for the products of their soil, either directly or indirectly, after it was manufactured — cotton, tobacco, sugar and rice. The war shut us out of this trade. The tariff shut us out of foreign trade; for if they cannot sell here, they cannot buy to the same extent they otherwise would. Consequently, our produce remains unsold, or put out of our hands at ruinous rates. Every farmer has felt this in the last year. Shortly, the effect of the law is that we get less for what we have to sell, and pay more for what we have to buy, than we did before it passed. If the difference went into the public treasury, we would not so much care, but it does not; for the law has greatly cut down the amount of importations into this country, and, of course, the amount of tax received on such importations. From the ist of July, 1859, to last of June, i860, there was imported of dry goods into the port of N e w York From ist of July, 1 8 6 1 , to last June, 1 8 6 2 Difference

$106,843,000 00 38,155,000 00 68,688,000 00

This amount shows, as is true, that but little revenue was derived from that source. This too, at a time when, above all others, we needed money. The interest of the Government was not regarded — or the rates of duties would have been fixed at such a reasonable amount as would not have shut out importations, but would have secured the greatest amount of revenue by admitting persons to bring in goods from abroad: instead of operating; as this does, as a prohibition to the introduction of goods, so taxed. It shows another thing — that as the goods were not brought from abroad, as before, that our manufacturers, in addition to their former work, would have to supply the deficiency; or the people do without.

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It is notorious that the manufacturing interest of this country is now making more money than at any former time. Many of them run day and night, and divide to the owners large dividends — in many cases exorbitant. This cannot be otherwise, because: first they have the work to do they usually did, formerly: second, to a great extent the deficiency above shown is to fill up: third, they are making arms, clothing, tents, blankets, shoes, and all other stores for the government at enormous rates. No wonder the manufacturers, and those in their interest, will not hear of any intimation that this war ought to cease — that is, that the differences should be arranged in any other manner than by fighting. To them it is a "harvest of gold," and so long as it lasts the excitement will prevent they hope, all inquiry into their course. The revenues of the Government, from importations, having been cut off by this law, as a matter of course they had to resort to direct taxes to supply it — and soon we will see a small army of tax gatherers in our midst. POPULAR SOVEREIGNTY

In the free States the question that, more than any other, agitated the public mind at the last presidential election was, whether the people of the Territories should determine for themselves as to their domestic institutions. Notwithstanding the cry of "no party" by the Republicans they have passed an act striking down this right, and forbidding the people to exercise it in all the territories now, or hereafter to be, formed. This they have done directly in the face of the "no party" cry by which they raised an army to sustain an administration in power, the election of whom produced this war, because doctrines hostile to this principle were held — as we have already shown. It was to be hoped that, as these men in their extremity, cried out "no party" they would in good faith have acted it; and not have insulted their political opponents, upon whom they have called for help, by requiring them to fight, under Lincoln, to sustain the very doctrines against which they had contended, under Douglas. But so it is, the "no party" cry was intended to apply to democrats alone — not to republicans, that they might carry out their partisan views in Congress, and democrats must abandon theirs and go to war to sustain men thus false to their professions.

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For twenty-five years following the adoption of the Constitution, there was a fierce contest as to the federal power. Alexander Hamilton, the elder Adams, and all that school of politicians, insisted upon construing that instrument so as to clothe the federal government with almost kingly, or unlimited powers — in other words that each government possessed all power not forbidden. Jefferson and others contended that it possessed no other powers, under the Constitution, than were thereby granted expressly, or by fair implication as necessary to sustain those powers so granted. Upon this doctrine the democratic party was founded by Jefferson. It was thought to have been acquiesced in by all parties. See speeches of Clay and Webster cited, and Decision of Supreme Court. Now, under this administration, the old FEDERAL doctrine is revived and acted upon. That is, that the general government may do any act not expressly forbidden by the Constitution — hence we see revived all the tyrannies of the administration of John Adams, and now being exercised by the President and his Secretaries; without even the form and decency of requiring an Act of Congress to authorize such proceedings. Under Adams, men were in a few instances, tried, fined and imprisoned for opinion's sake — that is, under the sedition act, for speaking disrespectfully of the President. Those few instances of deprivation of personal liberty, for opinion's sake, consolidated the Democratic party under Jefferson and put Adams out of power. From that time until the first year of the present administration, no ruler ever ventured to punish his fellow, in this country, (it is often done in France and Austria) for entertaining political doctrines at variance with the ruling power. It may and surely will sound strange, that now, it is gravely announced in Congress that a man ought not to occupy a seat there if he differs from the administration as to the leading questions of the day. Davis' speech on the expulsion of Bright, Cong. Globe, pp. 432-473. Not only this, but forgetting the creed of Jefferson, and the express guaranties of the Constitution, the President and his Secretaries have caused men to be arrested and imprisoned without "due process of law" and have, by military authority, refused to permit Courts and Judges, or even Congress (Cong. Globe, p. — ) to examine into the reasons of such

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arrests — if any reasons exist. Have thus refused the benefit of the writ of Habeas Corpus. These arrests are not confined to regions in which there was rebellion; but have taken place where the courts of justice were open and in full operation, ready to try any charge against any citizen. Many cases of the exercise of this species of unlimited power might be referred to; but they are all swallowed up in that monstrous heresy which claims for the Congress and the President the power to strike out of existence State Governments, and institute provisional or territorial governments in their stead. This war is against the right of the people of a State to withdraw it from the partnership. The doctrine advocated gives the general government the authority to kick any State out of the Union — take from the people thereof their government, and reduce them to mere dependents. What is the difference in the two doctrines? There is more of the political doctrines of self-government in the former than the latter. But why these claims of extraordinary powers? It has been shown that the doctrines of ultra men cannot be carried out under the Constitution. To give them play, therefore, that sacred instrument must be disregarded — set at naught. The general government possesses no power to abolish slavery in the States; therefore, State Governments must be abolished. Then comes in the doctrines of the EMANCIPATION LEAGUE

That has been lately formed under favor of leading abolitionists — even sworn members of the United States Senate. It is to some extent a secret organization: but, so far as its doctrines have transpired they are, that no State, now in rebellion, shall be admitted into the Union again unless slavery is abolished. — Speech of Lane of Kansas, Cong. Globe, p. 3236 July xoth, 1862. — Julian's Speech, Jan. 14th, 1862. This war has been prosecuted on the theory that the rebellious States are not out of the Union — that the people of such states had no power to take them out, that they were still members of the Confederacy — so, Virginia and Tennessee, had Senators on the floor, although those representing their State Governments are against this Government, and their people in arms. It is viewed as a war by a portion of the people of these States

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against this Government. Now it is proposed to change the theory and, in effect declare that such states are out of the Union. If they are, then it is by the action of their people. If the people could thus take them out then their action must have been lawful, for, if not lawful it is invalid. If lawful for what are we warring — to punish a people for the performance of a lawful act? This theory won't do, for it places us in the wrong. It is only invented to give place and foundation to the ideas of those in this league. Notwithstanding all these things — and although the liberty of speech and of the press, and the right of trial by jury, are thus stricken down, the foundations upon which the Democratic party was built up are thus being sapped, yet we are coolly told there is no necessity for the re-organization of that party. The oldest party in the Government — the party under whose rule this country has been built up — the party in favor of personal liberty, of private rights. Of old, when one had been trusted was about to lose his office, he exclaimed, "I cannot dig. To beg I am shamed." Luke xvi. 2. And therefore, by betraying his trust, he sought favor with others. So, in looking around, if you see any one in whom, as a Democrat, you have heretofore placed trust, but who has fallen from his high estate — forsaken his principles, and has, in the scramble for spoils and place, indulged in denunciation of the party that made him and trusted him, or has attempted by such acts to make for himself "friends of the mammon of unrighteousness," heed him not. He is joined to his chief idol — self. His new-found patriotism may be a sham and a cheat. But we are met by the sweeping insinuation of "contractors" and toadies, that opposition to the proceedings of power is treason. Treason! It would be aiding this rebellion to stand silent and see the Constitution totally disregarded — trampled under foot — our brave soldiers suffering upon the battle field and weary march, for the necessaries of life, stolen from them by bloated party hacks. It would be treason to the Constitution itself to see the bulwarks of liberty — the liberty of speech, the liberty of the press, and personal rights all stricken down, and no warning voice heard from us. Therefore we say the Democracy of Indiana did right to meet on the 8th day of January last. They did right in assembling on the 30th of July. Their voices should be heard by those in high places,

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that they may abstain from the attempt to exercise unwarranted powers. We place ourselves upon the Constitution as it is, and will go forth to the ballot-box pleading before the people for the Government as it was formed by our fathers; and no expletives that could be used are as loud and bold a denunciation of secession, of abolition, as this proud position of the proud old Democracy. The use of ribald language affects nothing; if it did, secessionists would, ere now, have been utterly annihilated by the abusive words hurled at them from the pulpit, the stump, and many other public places where Abolitionists most do congregate. We invite all who love the Constitution — all who detest, who fear ultraism, to rally under our flag, to assist us in rescuing the power from the hands of ultra men. It is remarked by wise men in this country, and all foreign writers testify to the same thing, viz., that there is a disposition upon the part of those now in power to bend to that which they conceive to be, for the moment, popular. Let us, then, speak to them in the most efficient of all forms — through the ballot-box, in condemnation of the great outrages offered to the white men of the North and to the Constitution of our fathers. Laying aside, for the time being, all former differences, let conservative men everywhere join hands upon the Constitution and swear by "The Great Eternal" that no foul finger shall blot out one line of that instrument consecrated "by the wisdom of our sages, and blood of our heroes."

Pamphlet 1 7 Benjamin Robbins Curtis Executive Power. Cambridge, 1862 [The significance of the Confiscation Act of July, 1862, had not been lost upon President Lincoln. The Republicans in Congress, responding to the growing sentiment of their constituents, were determined to establish the abolition of slavery as a war aim. Lincoln seems to have realized that if he were to retain leadership, he would have to modify his cautious views, even at the risk of adding to opposition in the border states and areas like southern Indiana. He planned a bold measure. In that same month, July, 1862, he drafted a proclamation, based upon his war powers as commander in chief, to free slaves within Confederate-controlled territory. For several months he kept it a secret, awaiting a propitious time to announce it. After the Battle of Antietam on September 22, 1862, he issued á preliminary proclamation, and on January 1, 1863, he signed the Emancipation Proclamation. At that time it seemed a paper proclamation, but as the Union armies advanced they liberated quantities of slaves, foredooming the institution of slavery. Many of Lincoln's Republican critics were disarmed, but numerous Northern conservatives condemned the Emancipation Proclamation for reasons compounded of racism and constitutionalism. Not all of those who joined in the denunciation were long-time Democrats. One of the most prestigious was a former Whig who had been a protégé of Daniel Webster, Benjamin R. Curtis ( 18091874). A New Englander who had been second in his class at Harvard, Curtis had been one of the two justices on the United States Supreme Court who had dissented from the Dred Scott decision, holding that a slave's act of residence in free territory entitled him to his freedom. Shortly afterwards he resigned from the Supreme Court to become one of the most highly paid lawyers in the country. When civil war threatened, he urged Massachusetts to repeal her personal liberty laws (to prevent the return of fugitive slaves) as a gesture of goodwill toward the South. Throughout the war he was a conservative, constitutionalist opponent of the Lincoln administration; in Executive Power he expressed his opposition to confiscation and emancipation. In 1868 he was the leading counsel for the defense at the impeachment trial of President Andrew Johnson.]

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PREFACE. EXTRACT FROM PRESIDENT LINCOLN^ PROCLAMATION OF SEPTEMBER 2 2 ,

1862.

"THAT on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to suppress such persons, or any of them, in any efforts they may make for their actual freedom. "That the Executive will, on the first day of January aforesaid, by proclamation, designate the States, and parts of States, if any, in which the people thereof respectively shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be in good faith represented in the Congress of the United States, by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

"Understand, I raise no objection against it on legal or constitutional grounds; for, as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy." — PRESIDENT LINCOLN TO THE CHICAGO DELEGATION. PROCLAMATION OF SEPTEMBER 2 4 ,

1862.

"WHEREAS, it has become necessary to call into service not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection: "Now, therefore, be it ordered, —

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"First. That during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission. "Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority, or by the sentence of any court-martial or military commission. "In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. "Done at the city of Washington, this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the independence of the United States the eighty-seventh. "ABRAHAM LINCOLN. "By the President: "WILLIAM H . SEWARD, Secretary of State." ORDERS OF THE SECRETARY OF WAR PROMULGATED SEPTEMBER 26,

1862.

First. There shall be a provost marshal general of the war department, whose headquarters will be at Washington, and who will have the immediate supervision, control, and management of the corps. Second. There will be appointed in each State one or more special provost marshals, as necessity may require, who will report and receive instructions and orders from the provost marshal general of the war department. Third. It will be the duty of the special provost marshal to arrest all deserters, whether regulars, volunteers, or militia, and send them to the nearest military commander or military post, where they can be cared for and sent to their respective regiments; to arrest, upon the warrant of the judge advocate, all disloyal persons subject to arrest under the orders of the war department; to inquire into and report treasonable practices, seize stolen or embezzled property of

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the government, detect spies of the enemy, and perform such other duties as may be enjoined upon them by the war department, and report all their proceedings promptly to the provost marshal general. Fourth. To enable special provost marshals to discharge their duties efficiently, they are authorized to call on any available military force within their respective districts, or else to employ the assistance of citizens, constables, sheriffs, or police-officers, so far as may be necessary under such regulations as may be prescribed by the provost marshal general of the war department, with the approval of the Secretary of War. Fifth. Necessary expenses incurred in this service will be paid on duplicate bills certified by the special provost marshals, stating time and nature of service, after examination and approval by the provost marshal general. Sixth. The compensation of special provost marshals will be dollars per month, and actual travelling expenses, and postage will be refunded on bills certified under oath and approved by the provost marshal general. Seventh. All appointments in this service will be subject to be revoked at the pleasure of the Secretary of War. Eighth. All orders heretofore issued by the war department, conferring authority upon other officers to act as provost marshals, except those who received special commissions from the war department, are hereby revoked. By order of the Secretary of War, L. THOMAS, Adjutant-General.

EXECUTIVE POWER. No citizen can be insensible to the vast importance of the late proclamations and orders of the President of the United States. Great differences of opinion already exist concerning them. But whatever those differences of opinion may be, upon one point all must agree. They are assertions of transcendent executive power. There is nothing in the character or conduct of the chief magistrate, — there is nothing in his present position in connection with these proclamations, and there is nothing in the state of the country, which should prevent a candid and dispassionate discussion either of their practical tendencies, or of the source of power from whence they are supposed to spring.

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The President, on all occasions, has manifested the strongest desire to act cautiously, wisely, and for the best interests of the country. What is commonly called his proclamation of emancipation, is, from its terms and from the nature of the case, only a declaration of what, at its date, he believed might prove expedient, within yet undefined territorial limits, three months hence, thirty days after the next meeting of Congress, and within territory not at present subject even to our military control. Of course, such an executive declaration as to his future intentions, must be understood by the people to be liable to be modified by events, as well as subject to such changes of views, respecting the extent of his own powers, as a more mature, and possibly a more enlightened consideration may produce. In April, 1861, the President issued his proclamation, declaring that he would treat as pirates all persons who should cruise, under the authority of the so-called Confederate States, against the commerce of the United States. But subsequent events induced him, with general acquiescence, to exchange them as prisoners of war. Not from any fickleness of purpose; but because the interests of the country imperatively demanded this departure from his proposed course of action. In like manner, it is not to be doubted by any one who esteems the President honestly desirous to do his duty to the country, under the best lights possible, that when the time for his action on his recent proclamations and orders shall arrive, it will be in conformity with his own wishes, that he should have those lights which are best elicited in this country by temperate and well-considered public discussion; discussion, not only of the practical consequences of the proposed measures, but of his own constitutional power to decree and execute them. The Constitution has made it incumbent on the President to recommend to Congress such measures as he shall deem necessary and expedient. Although Congress will have been in session nearly thirty days before any executive action is proposed to be taken on this subject of emancipation, it can hardly be supposed that this proclamation was intended to be a recommendation to them. Still, in what the President may perhaps regard as having some flavor of the spirit of the Constitution, he makes known to the people of the United States his proposed future executive action; certainly not expecting or desiring that they should be indifferent to such a

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momentous proposal, or should fail to exercise their best judgments, and afford their best counsels upon what so deeply concerns themselves. Our public affairs are in a condition to render unanimity, not only in the public councils of the nation, but among the people themselves, of the first importance. But the President must have been aware, when he issued these proclamations, that nothing approaching towards unanimity upon their subjects could be attained, among the people, save through their public discussion. And as his desire to act in accordance with the wisest and best settled and most energetic popular sentiment cannot be doubted, we may justly believe that executive action has been postponed, among other reasons, for the very purpose of allowing time for such discussion. And, in reference to the last proclamation, and the orders of the Secretary of War, intended to carry it into practical effect, though their operation is immediate, so far as their express declarations can make them so, they have not yet been practically applied to such an extent, or in such a way, as not to allow it to be supposed that the grounds upon which they rest are open for examination. However this may be, these are subjects in which the people have vast concern. It is their right, it is their duty, to themselves and to their posterity, to examine and to consider and to decide upon them; and no citizen is faithful to his great trust if he fail to do so, according to the best lights he has, or can obtain. And if, finally, such examination and consideration shall end in diversity of opinion, it must be accepted as justly attributable to the questions themselves, or to the men who have made them. It has been attempted by some partisan journals to raise the cry of "disloyalty" against any one who should question these executive acts. But the people of the United States know that loyalty is not subserviency to a man, or to a party, or to the opinions of newspapers; but that it is an honest and wise devotion to the safety and welfare of our country, and to the great principles which our constitution of government embodies, by which alone that safety and welfare can be secured. And, when those principles are put in jeopardy every truly loyal man must interpose, according to his ability, or be an unfaithful citizen. This is not a government of men. It is a government of laws.

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And the laws are required by the people to be in conformity with their will, declared by the Constitution. Our loyalty is due to that will. Our obedience is due to those laws; and he who would induce submission to other laws, springing from sources of power not originating in the people, but in casual events, and in the mere will of the occupants of places of power, does not exhort us to loyalty, but to a desertion of our trust. That they whose principles he questions have the conduct of public affairs; that the times are most critical; that public unanimity is highly necessary; while these facts afford sufficient reasons to restrain all opposition upon any personal or party grounds, they can afford no good reason, — hardly a plausible apology, — for failure to oppose usurpation of power, which, if acquiesced in and established, must be fatal to a free government. The war in which we are engaged is a just and necessary war. It must be prosecuted with the whole force of this government till the military power of the South is broken, and they submit themselves to their duty to obey, and our right to have obeyed, the Constitution of the United States as "the supreme law of the land." But with what sense of right can we subdue them by arms to obey the Constitution as the supreme law of their part of the land, if we have ceased to obey it, or failed to preserve it, as the supreme law of our part of the land. I am a member of no political party. Duties, inconsistent, in my opinion, with the preservation of any attachments to a political party, caused me to withdraw from all such connections, many years ago, and they have never been resumed. I have no occasion to listen to the exhortations, now so frequent, to divest myself of party ties, and disregard party objects, and act for my country. I have nothing but my country for which to act, in any public affair; and solely because I have that yet remaining, and know not but it may be possible, from my studies and reflections, to say something to my countrymen which may aid them to form right conclusions in these dark and dangerous times, I now, reluctantly, address them. I do not propose to discuss the question whether the first of these proclamations of the President, if definitively adopted, can have any practical effect on the unhappy race of persons to whom it refers; nor what its practical consequences would be, upon them and upon the white population of the United States, if it should take effect;

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nor through what scenes of bloodshed, and worse than bloodshed, it may be, we should advance to those final conditions; nor even the lawfulness, in any Christian or civilized sense, of the use of such means to attain any end. If the entire social condition of nine millions of people has, in the providence of God, been allowed to depend upon the executive decree of one man, it will be the most stupendous fact which the history of the race has exhibited. But, for myself, I do not yet perceive that this vast responsibility is placed upon the President of the United States. I do not yet see that it depends upon his executive decree, whether a servile war shall be invoked to help twenty millions of the white race to assert the rightful authority of the Constitution and laws of their country, over those who refuse to obey them. But I do see that this proclamation asserts the power of the Executive to make such a decree. I do not yet perceive how it is that my neighbors and myself, residing remote from armies and their operations, and where all the laws of the land may be enforced by constitutional means, should be subjected to the possibility of military arrest and imprisonment, and trial before a military commission, and punishment at its discretion for offences unknown to the law; a possibility to be converted into a fact at the mere will of the President, or of some subordinate officer, clothed by him with this power. But I do perceive that this executive power is asserted. I am quite aware, that in times of great public danger, unexpected perils, which the legislative power have failed to provide against, may imperatively demand instant and vigorous executive action, passing beyond the limits of the laws; and that, when the Executive has assumed the high responsibility of such a necessary exercise of mere power, he may justly look for indemnity to that department of the government which alone has the rightful authority to grant it; — an indemnity which should be always sought and accorded upon the clearest admission of legal wrong, finding its excuse in the exceptional case which made that wrong absolutely necessary for the public safety. But I find no resemblance between such exceptional cases and the substance of these proclamations and these orders. They do not relate to exceptional cases — they establish a system. They do not relate to some instant emergency — they cover an indefinite future.

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They do not seek for excuses — they assert powers and rights. They are general rules of action, applicable to the entire country, and to every person in it; or to great tracts of country and to the social condition of their people; and they are to be applied whenever and wherever and to whomsoever the President, or any subordinate officer whom he may employ, may choose to apply them. Certainly these things are worthy of the most deliberate and searching examination. Let us, then, analyze these proclamations and orders of the President; let us comprehend the nature and extent of the powers they assume. Above all, let us examine that portentous cloud of the military power of the President, which is supposed to have overcome us and the civil liberties of the country, pursuant to the will of the people, ordained in the Constitution because we are in a state of war. And first, let us understand the nature and operation of the proclamation of emancipation, as it is termed; then, let us see the character and scope of the other proclamation, and the orders of the Secretary at War, designed to give it practical effect, and having done so, let us examine the asserted source of these powers. The proclamation of emancipation, if taken to mean what in terms it asserts, is an executive decree, that on the first day of January next, all persons held as slaves, within such States or parts of States as shall then be designated, shall cease to be lawfully held to service, and may by their own efforts, and with the aid of the military power of the United States, vindicate their lawful right to their personal freedom. The persons who are the subjects of this proclamation are held to service by the laws of the respective States in which they reside, enacted by State authority, as clear and unquestionable, under our system of government, as any law passed by any State on any subject. This proclamation, then, by an executive decree, proposes to repeal and annul valid State laws which regulate the domestic relations of their people. Such is the mode of operation of the decree. The next observable characteristic is, that this executive decree holds out this proposed repeal of State laws as a threatened penalty for the continuance of a governing majority of the people of each

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State, or part of a State, in rebellion against the United States. So that the President hereby assumes to himself the power to denounce it as a punishment against the entire people of a State, that the valid laws of that State which regulate the domestic condition of its inhabitants, shall become null and void, at a certain future date, by reason of the criminal conduct of a governing majority of its people. This penalty, however, it should be observed, is not to be inflicted on those persons who have been guilty of treason. The freedom of their slaves was already provided for by the act of Congress, recited in a subsequent part of the proclamation. It is not, therefore, as a punishment of guilty persons, that the commander-in-chief decrees the freedom of slaves. It is upon the slaves of loyal persons, or of those who, from their tender years, or other disability, cannot be either disloyal or otherwise, that the proclamation is to operate, if at all; and it is to operate to set them free, in spite of the valid laws of their States, because a majority of the legal voters do not send representatives to Congress. Now it is easy to understand how persons held to service under the laws of these States, and how the army and navy under the orders of the President, may overturn these valid laws of the States, just as it is easy to imagine that any law may be violated by physical force. But I do not understand it to be the purpose of the President to incite a part of the inhabitants of the United States to rise in insurrection against valid laws; but that by virtue of some power which he possesses, he proposes to annul those laws, so that they are no longer to have any operation. The second proclamation, and the orders of the Secretary of War, which follow it, place every citizen of the United States under the direct military command and control of the President. They declare and define new offences, not known to any law of the United States. They subject all citizens to be imprisoned upon a military order, at the pleasure of the President, when, where, and so long as he, or whoever is acting for him, may choose. They hold the citizen to trial before a military commission appointed by the President, or his representative, for such acts or omissions as the President may think proper to decree to be offences; and they subject him to such punishment as such military commission may be pleased to inflict. They create new offices, in such number, and whose occupants are to receive such compensation, as the President may direct; and the

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holders of these offices, scattered through the States, but with one chief inquisitor at Washington, are to inspect and report upon the loyalty of the citizens, with a view to the above described proceedings against them, when deemed suitable by the central authority. Such is a plain and accurate statement of the nature and extent of the powers asserted in these executive proclamations. What is the source of these vast powers? Have they any limit? Are they derived from, or are they utterly inconsistent with, the Constitution of the United States? The only supposed source or measure of these vast powers appears to have been designated by the President, in his reply to the address of the Chicago clergymen, in the following words: "Understand, I raise no objection against it on legal or constitutional grounds; for, as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy." This is a clear and frank declaration of the opinion of the President respecting the origin and extent of the power he supposes himself to possess; and, so far as I know, no source of these powers other than the authority of commander-in-chief in time of war, has ever been suggested. There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus," is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President. Still, very able lawyers have endeavored to maintain, — perhaps to the satisfaction of others, — have maintained, that the power to deprive a particular person of "the privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show, that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences, unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who

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shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested, save that described by the President himself, as belonging to him as the commander-in-chief. It must be obvious to the meanest capacity, that if the President of the United States has an implied constitutional right, as commander-in-chief of the army and navy in time of war, to disregard any one positive prohibition of the Constitution, or to exercise any one power not delegated to the United States by the Constitution, because, in his judgment, he may thereby "best subdue the enemy," he has the same right, for the same reason, to disregard each and every provision of the Constitution, and to exercise all power, needful, in his opinion, to enable him "best to subdue the enemy." It has never been doubted that the power to abolish slavery within the States was not delegated to the United States by the Constitution, but was reserved to the States. If the President, as commander-in-chief of the army and navy in time of war, may, by an executive decree, exercise this power to abolish slavery in the States, which power was reserved to the States, because he is of opinion that he may thus "best subdue the enemy," what other power, reserved to the States or to the people, may not be exercised by the President, for the same reason, that he is of opinion he may thus best subdue the enemy? And if so, what distinction can be made between powers not delegated to the United States at all, and powers which, though thus delegated, are conferred by the Constitution upon some department of the government other than the executive? Indeed, the proclamation of September 24, 1862, followed by the orders of the war department, intended to carry it into practical effect, are manifest assumptions, by the President, of powers delegated to the Congress and to the judicial department of the government. It is a clear and undoubted prerogative of Congress alone, to define all offences, and to affix to each some appropriate and not cruel or unusual punishment. But this proclamation and these orders create new offences, not known to any law of the United States. "Discouraging enlistments," and "any disloyal practice," are

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not offences known to any law of the United States. At the same time, they may include, among many other things, acts which are offences against the laws of the United States, and, among others, treason. Under the Constitution and laws of the United States, except in cases arising in the land and naval forces, every person charged with an offence is expressly required to be proceeded against, and tried by the judiciary of the United States and a jury of his peers; and he is required by the Constitution to be punished, in conformity with some act of Congress applicable to the offence proved, enacted before its commission. But this proclamation and these orders remove the accused from the jurisdiction of the judiciary; they substitute a report, made by some deputy provost marshal, for the presentment of a grand jury; they put a military commission in place of a judicial court and jury required by the Constitution; and they apply the discretion of the commission and the President, fixing the degree and kind of punishment, instead of the law of Congress fixing the penalty of the offence. It no longer remains to be suggested, that if the ground of action announced by the President be tenable, he may, as commander-inchief of the army and navy, use powers not delegated to the United States by the Constitution; or may use powers by the Constitution exclusively delegated to the legislative and the judicial departments of the government. These things have been already done, so far as the proclamations and orders of the President can effect them. It is obvious, that if no private citizen is protected in his liberty by the safeguards thrown around him by the express provisions of the Constitution, but each and all of those safeguards may be disregarded, to subject him to military arrest upon the report of some deputy provost marshal, and imprisonment at the pleasure of the President, and trial before a military commission, and punishment at its discretion, because the President is of opinion that such proceedings "may best subdue the enemy," then all members of either house of Congress, and every judicial officer is liable to be proceeded against as a "disloyal person," by the same means and in the same way. So that, under this assumption concerning the implied powers of the President as commander-in-chief in time of war, if the President shall be of opinion that the arrest and incarceration, and trial before a military commission, of a judge of the United States, for some judicial decision, or of one or more members of either house

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of Congress for words spoken in debate, is "a measure which may best subdue the enemy," there is then conferred on him by the Constitution the rightful power so to proceed against such judicial or legislative officer. This power is certainly not found in any express grant of power made by the Constitution to the President, nor even in any delegation of power made by the Constitution of the United States to any department of the government. It is claimed to be found solely in the fact, that he is the commander-in-chief of its army and navy, charged with the duty of subduing the enemy. And to this end, as he understands it, he is charged with the duty of using, not only those great and ample powers which the Constitution and laws and the self-devotion of the people in executing them, have placed in his hands, but charged with the duty of using powers which the people have reserved to the States, or to themselves; and is permitted to break down those great constitutional safeguards of the partition of governmental powers, and the immunity of the citizen from mere executive control, which are at once both the end and the means of free government. The necessary result of this interpretation of the Constitution is, that, in time of war, the President has any and all power, which he may deem it necessary to exercise, to subdue the enemy; and that every private and personal right of individual security against mere executive control, and every right reserved to the States or the people, rests merely upon executive discretion. But the military power of the President is derived solely from the Constitution; and it is as sufficiently defined there as his purely civil power. These are its words: "The President shall be the Commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." This is his military power. He is the general-in-chief; and as such, in prosecuting war, may do what generals in the field are allowed to do within the sphere of their actual operations, in subordination to the laws of their country, from which alone they derive their authority.1 1 T h e case of Mitchel vs. Harmony ( 1 3 How. 1 1 5 ) , presented for the decision of the Supreme Court of the United States, the question of the extent of the right of a commanding general in the field to appropriate private property to the public service, and it was decided that such an appropriation might be made, in case it should be

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When the Constitution says that the President shall be the commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States, does it mean that he shall possess military power and command over all citizens of the United States; that, by military edicts, he may control all citizens, as if enlisted in the army or navy, or in the militia called into the actual service of the United States? Does it mean that he may make himself a legislator, and enact penal laws governing the citizens of the United States, and erect tribunals,, and create offices to enforce his penal edicts upon citizens? Does it mean that he may, by a prospective executive decree, repeal and annul the laws of the several States, which respect subjects reserved by the Constitution for the exclusive action of the States and the people? The President is the commander-inchief of the army and navy, not only by force of the Constitution, but under and subject to the Constitution, and to every restriction therein contained, and to every law enacted by its authority, as completely and clearly as the private in his ranks. He is general-in-chief; but can a general-in-chief disobey any law of his own country? When he can, he super-adds to his rights as rendered necessary by an immediate and pressing danger or urgent necessity existing at the time, and not admitting of delay, but not otherwise. In delivering the opinion of the Court, the Chief Justice said: — " O u r duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is: whether the law permits it to be taken, to insure the success of any enterprise against a public enemy, which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it. The case mentioned by Lord Mansfield, in delivering his opinion in Mostyn vs. Fabrigas ( l Cowp. 180), illustrates the principle of which w e are speaking. Captain Gambier, of the British navy, b y the order of Admiral Boscawen, pulled down the houses of some settlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, the health of the sailors being injured by frequenting them. The motive was evidently a laudable one, and the act done for the public service. Yet it was an invasion of the rights of private property and without the authority of law; and the officer who executed the order was held liable to an action; and the settlers recovered damages against him to the value of the property destroyed. This case shows how carefully the rights of property are guarded by the laws of England; and they are certainly not less valued, nor less securely guarded, under the Constitution and laws of the United States." It may safely be said that neither of the very eminent counsel by whom that case was argued, and that no judge before whom it came, had then advanced to the conception that a commanding general may lawfully take any measure which may best subdue the enemy. The wagons, mules, and packages seized by General Donophon, in that case, were of essential service in his brilliant and successful attack on the lines of Chihuahua. But this did not save him from being liable to their owner as a mere wrongdoer, under the Constitution and laws of the United States.

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commander the powers of a usurper; and that is military despotism. In the noise of arms have we become deaf to the warning voices of our fathers, to take care that the military shall always be subservient to the civil power? Instead of listening to these voices, some persons now seem to think that it is enough to silence objection, to say, true enough, there is no civil right to do this or that, but it is a military act. They seem to have forgotten that every military act is to be tested by the Constitution and laws of the country under whose authority it is done. And that under the Constitution and laws of the United States, no more than under the government of Great Britain, or under any free or any settled government, the mere authority to command an army, is not an authority to disobey the laws of the country. The framers of the Constitution thought it wise that the powers of the commander-in-chief of the military forces of the United States should be placed in the hands of the chief civil magistrate. But the powers of Commander-in-chief are in no degree enhanced or varied by being conferred upon the same officer who has important civil functions. If the Constitution had provided that a Commander-inchief should be appointed by Congress, his powers would have been the same as the military powers of the President now are. And what would be thought by the American people of an attempt by a general-in-chief, to legislate by his decrees, for the people and the States. Besides, all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make, nor suspend, nor alter them. He cannot even make an article of war. He may govern the army, either by general or special orders, but only in subordination to the Constitution and laws of the United States, and the articles of war enacted by the legislative power. The time has certainly come when the people of the United States must understand, and must apply those great rules of civil liberty, which have been arrived at by the self-devoted efforts of thought and action of their ancestors, during seven hundred years of struggle against arbitrary power. If they fail to understand and apply them, if they fail to hold every branch of their government steadily to them, who can imagine what is to come out of this great and desperate struggle. The military power of eleven of these States

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being destroyed — what then? What is to be their condition? What is to be our condition? Are the great principles of free government to be used and consumed as means of war? Are we not wise enough and strong enough to carry on this war to a successful military end, without submitting to the loss of any one great principle of liberty? We are strong enough. We are wise enough, if the people and their servants will but understand and observe the just limits of military power. What, then, are those limits? They are these. There is military law; there is martial law. Military law is that system of laws enacted by the legislative power for the government of the army and navy of the United States, and of the militia when called into the actual service of the United States. It has no control whatever over any person or any property of any citizen. It could not even apply to the teamsters of an army, save by force of express provisions of the laws of Congress, making such persons amenable thereto. The persons and the property of private citizens of the United States, are as absolutely exempted from the control of military law as they are exempted from the control of the laws of Great Britain. But there is also Martial law. What is this? 2 It is the will of a 2 The following extracts from the opinion of Mr. Justice Woodbury, delivered in the Supreme Court of the United States in the case of Luther vs. Borden, ( 7 How. 62,) states what martial law is, and some of the incidents of its history: "By it every citizen, instead of reposing under the shield of known and fixed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp-post, under the sentence of some drum-head court-martial. See Simmons's Pract. of Court-Martial, 40. See such a trial in Hough on Courts-Martial, 383, where the victim on the spot was 'blown away by a gun, 'neither time, place, nor persons considered. As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558, by proclamation merely, and declared, 'that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without any further delay be executed by the martial law.' Tytler on Military Law, p. 50, c. 1. §1. "For convincing reasons like these, in every country which makes any claim to political or civil liberty, "martial law" as here attempted, and as once practised in England against her own people, has been expressly forbidden there for near two centuries, as well as by the principles of every other free constitutional government. 1 Hallam's Const. Hist. 420. And it would be not a little extraordinary, if the spirit of our institutions, both state and national, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate, or even by a legislature. "One object of parliamentary inquiry, as early as 1620, was to check the abuse of martial law by the king, which had prevailed before. Tytler on Military Law, 502. The Petition of Right, in the first year of Charles I, reprobated all such arbitrary proceedings in the just terms and in the terse language of that great patriot as well

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military commander, operating without any restraint, save his judgment, upon the lives, upon the property, upon the entire social and individual condition of all over whom this law extends. But, under the Constitution of the United States, over whom does such law extendΡ Will any one be bold enough to say, in view of the history of our ancestors and ourselves, that the President of the United States can extend such law as that over the entire country, or over any defined geographical part thereof, save in connection with some particular military operations which he is carrying on there? Since Charles I. lost his head, there has been no king in England who could make such law, in that realm. And where is there to be found, in our history, or our constitutions, either State or national, any warrant for saying, that a President of the United States has been empowered by the Constitution to extend martial law over the whole country, and to subject thereby to his military power, every right of every citizen? He has no such authority. In time of war, a military commander, whether he be the commander-in-chief, or one of his subordinates, must possess and exercise powers both over the persons and the property of citizens which do not exist in time of peace. But he possesses and exercises such powers, not in spite of the Constitution and laws of the United States, or in derogation from their authority, hut in virtue thereof and in strict subordination thereto. The general who moves his army over private property in the course of his operations in the field, or who impresses into the public service means of transportation, or subsistence, to enable him to act against the enemy, or who seizes persons within his lines as spies, or destroys supplies in as judge, Sir Edward Coke, and prayed they might be stopped and never repeated. To this the king wisely replied, 'Soit droit fait comme est désiré.' — 'Let right be done as desired.' Petition of Right in Statutes at Large, ι Charles I. "Putting it in force by the King alone was not only restrained by the Petition of Right, early in the seventeenth century, but virtually denied as lawful by the Declaration of Rights in 1688. Tytler on Military Law, 307. Hallam, therefore, in his Constitutional History, 420, declares, that its use by 'the commissioners to try military offenders by martial law, was a procedure necessary, within certain limits, to the discipline of an army, but unwarranted by the constitution of this country.' Indeed, a distinguished English judge has since said, that 'martial law' as of old, now 'does not exist in England at all,' was 'contrary to the Constitution, and has been for a century totally exploded.' Grant v. Gould, 2 Hen. Bl. 6g; 1 Hale, P. C. 346; Hale Com. Law, c. 2, 36; 1 MacArthur, 55. "This is broad enough, and is correct as to the community generally, in both war and peace."

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immediate danger of falling into the hands of the enemy, uses authority unknown to the Constitution and laws of the United States in time of peace; but not unknown to that Constitution and those laws in time of war. The power to declare war, includes the power to use the customary and necessary means effectually to carry it on. As Congress may institute a state of war, it may legislate into existence and place under executive control the means for its prosecution. And, in time of war without any special legislation, not the commander-in-chief only, but every commander of an expedition, or of a military post, is lawfully empowered by the Constitution and laws of the United States to do whatever is necessary, and is sanctioned by the laws of war, to accomplish the lawful objects of his command. But it is obvious that this implied authority must find early limits somewhere. If it were admitted that a commanding general in the field might do whatever in his discretion might be necessary to subdue the enemy, he could levy contributions to pay his soldiers; he could force conscripts into his service; he could drive out of the entire country all persons not desirous to aid him; — in short, he would be the absolute master of the country for the time being. No one has ever supposed — no one will now undertake to maintain— that the commander-in-chief, in time of war, has any such lawful authority as this. What, then, is his authority over the persons and property of citizens? I answer, that, over all persons enlisted in his forces he has military power and command; that over all persons and property within the sphere of his actual operations in the field, he may lawfully exercise such restraint and control as the successful prosecution of his particular military enterprise may, in his honest judgment, absolutely require; and upon such persons as have committed offences against any article of war, he may, through appropriate military tribunals, inflict the punishment prescribed by law. And there his lawful authority ends. The military power over citizens and their property is a power to act, not a power to prescribe rules for future action. It springs from present pressing emergencies, and is limited by them. It cannot assume the functions of the statesman or legislator, and make provision for future or distant arrangements by which persons or property may be made subservient to military uses. It is the physical

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force of an army in the field, and may control whatever is so near as to be actually reached by that force, in order to remove obstructions to its exercise. But when the military commander controls the persons or property of citizens, who are beyond the sphere of his actual operations in the field when he makes laws to govern their conduct, he becomes a legislator. Those laws may be made actually operative; obedience to them may be enforced by military power; their purpose and effect may be solely to recruit or support his armies, or to weaken the power of the enemy with whom he is contending. But he is a legislator still; and whether his edicts are clothed in the form of proclamations, or of military orders, by whatever name they may be called, they are laws. If he have the legislative power, conferred on him by the people, it is well. If not, he usurps it. He has no more lawful authority to hold all the citizens of the entire country, outside of the sphere of his actual operations in the field, amenable to his military edicts, than he has to hold all the property of the country subject to his military requisitions. He is not the military commander of the citizens of the United States, but of its soldiers. Apply these principles to the proclamations and orders of the President. They are not designed to meet an existing emergency in some particular military operation in the field; they prescribe future rules of action touching the persons and property of citizens. They are to take effect, not merely within the scope of military operations in the field, or in their neighborhood, but throughout the entire country, or great portions thereof. Their subject-matter is not military offences, or military relations, but civil offences, and domestic relations; the relation of master and servant; the offences of "disloyalty, or treasonable practices." Their purpose is not to meet some existing and instant military emergency, but to provide for distant events, which may or may not occur; and whose connections, if they should coincide with any particular military operations, are indirect, remote, casual, and possible merely. It is manifest that in proclaiming these edicts, the President is not acting under the authority of military law; first, because military law extends only over the persons actually enlisted in the military service; and second, because these persons are governed by laws enacted by the legislative power. It is equally manifest that he is

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not acting under that implied authority which grows out of particular actual military operations; for these executive decrees do not spring from the special emergencies of any particular military operations and are not limited to any field, in which any such operations are carried on. Whence, then, do these edicts spring? They spring from the assumed power to extend martial law over the whole territory of the United States; a power, for the exercise of which by the President, there is no warrant whatever in the Constitution; a power which no free people could confer upon an executive officer, and remain a free people. For it would make him the absolute master of their lives, their liberties, and their property, with power to delegate his mastership to such satraps as he might select, or as might be imposed on his credulity, or his fears. Amidst the great dangers which encompass us, in our struggles to encounter them, in our natural eagerness to lay hold of efficient means to accomplish our vast labors, let us beware how we borrow weapons from the armory of arbitrary power. They cannot be wielded by the hands of a free people. Their blows willfinallyfall upon themselves. Distracted councils, divided strength, are the very earliest effects of an attempt to use them. What lies beyond, no patriot is now willing to attempt to look upon. A leading and influential newspaper, while expressing entire devotion to the President, and approbation of his proclamation of emancipation, says: "The Democrats talk about 'unconstitutional acts.' Nobody pretends that this act is constitutional, and nobody cares whether it is or not." I think too well of the President, to believe he has done an act involving the lives and fortunes of millions of human beings, and the entire social condition of a great people, without caring whether it is conformable to that Constitution which he has, many times, sworn to support. Among all the causes of alarm which now distress the public mind, there are few more terrible to reflecting men, than the tendency to lawlessness which is manifesting itself in so many directions. No stronger evidence of this could be afforded, than the open declaration of a respectable and widely circulated journal, that "nobody cares" whether a great public act of the President of the United States, is in conformity with, or is subversive of the supreme law

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of the land, — the only basis upon which the government rests; that our public affairs have become so desperate, and our ability to retrieve them by the use of honest means is so distrusted, and our willingness to use other means so undoubted, that our great public servants may themselves break the fundamental laws of the country, and become usurpers of vast powers not intrusted to them, in violation of their solemn oaths of office; and "nobody cares." It is not believed that this is just to the people of the United States. They do care, and the President cares, that he and all other public servants should obey the Constitution. Partisan journals, their own honest and proper desire to support the President, — on whose wisdom and firmness they rely to relieve their country from its evils and dangers, — and the difficulties which the mass of the people encounter in forming opinions on questions of constitutional law, may prevent them, for a limited time, from arriving at a just judgment of such questions, or of the vast practical effects dependent on them. But the people of the United States do not expect national concord to spring from usurpations of power; or national security from the violation of those great principles of public liberty, which are the only possible foundation, in this country, of private safety and of public order. Their instincts demand a purer and more comprehensive statesmanship than that which seizes upon unlawful expedients, because they may possibly avert for the moment some threatening danger, at the expense of the violation of great principles of free government, or of the destruction of some necessary safeguard of individual security. It is a subject of discussion in the public journals whether it is the intention of the Executive to use the powers asserted in the last proclamation and in the orders of the Secretary of War, to suppress free discussion of political subjects. I have confidence in the purity and the patriotism both of the President and of the Secretary of War. I fear no such present application of this proclamation and these orders by them. But the execution of such powers must be intrusted to subordinate agents, and it is of the very essence of arbitrary power that it should be in hands which can act promptly and efficiently, and unchecked by forms. These great powers must be confided to persons actuated by party, or local or personal feelings and prejudices; or, what would often prove as ruinous to the citizen,

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actuated by a desire to commend their vigilance to their employers, and by a blundering and stupid zeal in their service. But it is not this or that particular application of power which is to be considered. It is the existence of the power itself, and the uses of which it is susceptible, while following out the principle on which it has been assumed. The uses of power, even in despotic monarchies, are more or less controlled by usages and customs, or in other words, by public opinion. In good hands, and in favorable times, despotic power is not commonly allowed to be felt to be oppressive; and, always, the forms of a free government, which has once existed, so far as is practicable, are carefully and speciously preserved. But a wise people does not trust its condition and rights to the happy accident of favorable times or good hands. It is jealous of power. It knows that of all earthly things, it is that thing most likely to be abused; and when it affects a nation, most destructive by its abuse. They will rouse themselves to consider what is the power claimed; what is its origin; what is its extent; what uses may be made of it in dangerous times, and by men likely to be produced in such times; — and while they will trust their public servants, and will pour out their dearest blood like water to sustain them in their honest measures for their country's salvation, they will demand of those servants obedience to their will, as expressed in the fundamental laws of the government, to the end that there shall not be added to all the sufferings and losses they have uncomplainingly borne, that most irreparable of all earthly losses — the ruin of the principles of their free government. What then is to be done? Are we to cease our utmost efforts to save our country, because its chief magistrate seems to have fallen, for the time being, into what we believe would be fatal errors if persisted in by him and acquiesced in by ourselves? Certainly not. Let the people but be right, and no President can long be wrong; nor can he effect any fatal mischief if he should be. The sober second thought of the people has yet a controlling power. Let this gigantic shadow, which has been evoked out of the powers of the commander-in-chief, once be placed before the people, so that they can see clearly its proportions and its mien, and it will dissolve and disappear like the morning cloud before the rising sun. The people yet can and will take care, by legitimate means, with-

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out disturbing any principle of the Constitution, or violating any law, or relaxing any of their utmost efforts for their country's salvation, that their will, embodied in the Constitution, shall be obeyed. If it needs amendment, they will amend it themselves. They will suffer nothing to be added to it, or taken from it, by any other power than their own. If they should, neither the government itself, nor any right under it, will any longer be theirs.

Pamphlet

18

Grosvenor P. Lowrey The Commander-in-Chief;

A Defence

Grounds of the Proclamation of

upon Legal

Emancipation;

and an Answer to Ex-Judge Curtis' Entitled "Executive

Pamphlet,

Power."

Second Edition, with Additional

Notes.

N e w York, 1863

[A New York lawyer, Grosvenor P. Lowrey quickly published a comprehensive refutation of Benjamin R. Curtis' attack upon the Emancipation Proclamation. Lowrey wrote from a standpoint both of the international law of war and public policy. In 1863, Lowrey brought out the second, enlarged edition here reprinted. Later in the war he published another pamphlet attacking the British laxity in allowing the Confederate government to obtain a commerce raider, the Alabama, from a Scottish shipyard.]

PREFACE.

IN the first edition of this pamphlet was published the Emancipation Proclamation of Sept. 22, 1862; but the interest of that document is now merged in its successor, of Jan. 1, 1863, which w e print in its place: By the President of the United States. A Proclamation. Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a Proclamation was issued by the President of the United States, containing among other things; the following, to wit: "That, on the first day of January, in the year of our Lord one

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thousand eight hundred and sixty-three, all persons, held as slaves, within any state, or designated part of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforth, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any effort they may make for their actual freedom: That the Executive will, on the first day of January aforesaid, by proclamation, designate the states and parts of states, if any, in which the people therein, respectively, shall then be in rebellion against the United States, and the fact that any state, or the people thereof, shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such states shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such state, and the people thereof, are not then in rebellion against the United States." Now, therefore, I ABRAHAM LINCOLN, President of the United States, by virtue of the power in me vested, as Commander-in-Chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day of the first above-mentioned order, declare and designate, as the states and parts of states wherein the people thereof respectively are this day in rebellion against the United States, the following, to wit: ARKANSAS, TEXAS, LOUISIANA — except the Parishes of St. Bernard, Placquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terre Bonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans — MISSISSIPPI, ALABAMA, FLORIDA, GEORGIA, SOUTH CAROLINA, NORTH CAROLINA, AND VIRGINIA —

except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann and Norfolk, including the cities of Norfolk and

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Portsmouth, and which excepted parts, are for the present, left precisely as if this proclamation were not issued. And, by virtue of the power and for the purpose aforesaid, I do aver and declare that all persons held as slaves within said designated states and parts of states are, and henceforward shall be, FREE, and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. And I hereby enjoin upon the people so declared to be free, to abstain from all violence, unless in necessary self-defence, and I recommend to them that in all cases, when allowed, they labor faithfully for reasonable wages. And I further declare and make known that such persons of suitable condition, will be received into the armed service of the United States, to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service. And, upon this — sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity — I invoke the considerate judgment of mankind and the gracious favor of Almighty God. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and of the independence of the United States of America the eighty-seventh. ABRAHAM LINCOLN. By the President: WILLIAM H. SEWARD, Secretary of State. "But what a bottomless slough of absurdities, are even honest men compelled to swelter in, when once they have put their hand in that of slavery, and allowed themselves to be led by it! . . . Only one act, it seems, imposed by the terrible exigencies of war, is unconstitutional, and that is, the destruction of its cause, slaveryl No wonder that the great heart of the world swells with a suppressed shout of derision at such acumen and statesmanship." — From "The Birth and Death of Nations," a pamphlet hy James McKaye, Esq.

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"Judge Curtis' argument would give the Constitution and the law to the rebels, as their sword to smite with, and their shield to save them; and leave it to us only as a fetter." — Extract from Professor Parsons' Letter to the Boston Daily Advertiser. THE COMMANDER-IN-CHIEF. W H E N Congress, at the last session (1862), urged by a great necessity and the irresistible pressure of coming events, passed the bill known as the Emancipation Act, there arose all over the land a loud cry of remonstrance, coming mostly from timid patriots and bold sympathizers with rebellion. With some difficulty it was made to appear from the incoherent utterance that the national legislature had exceeded its constitutional functions, and usurped a power which could be exercised lawfully by the President acting as Commander-in-chief in time of war alone. So confident were the enemies of the policy of that measure, that it would never be acted upon by Mr. Lincoln, that they did not consider it necessary to deny the existence of such a power somewhere, and therefore fully admitted that it belonged to him as a war power. When, at last, he became of like mind, and issued his proclamation to that effect, great political contests were in progress in the various States, and the most bitter opposition was arrayed against it; but, although men of legal eminence were found among its adversaries, it entered no man's mind to question it upon legal grounds, until Ex-Judge Curtis, by his pamphlet, entitled "Executive Power," made that issue before the public. If Judge Curtis's loyalty is great, which I know no reason to doubt, so must his mortification have been great, to see how eagerly his ingenious argument was seized upon, and how comforting it has proved to all the notoriously disloyal among us. The avowed object of that pamphlet is, not alone to question the power of the President to emancipate the slaves of rebels, but to warn the American people against encroachments upon their civil liberties, by various alleged abuses of those vast powers belonging in time of war to the Commander-in-chief of the army and navy. Had the occasion not been such that greater danger was to be apprehended from disturbing the public confidence in the government than from any present usurpation by it, good men might find it more easy to sympathize with the distinguished writer. Impressed by a strong conviction that it is not alone from the side

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to which Judge Curtis' warning points that dangers threaten the cause of Christian progress, as it is illustrated in our social and political forms, I have felt it an imperative duty to give whatever thought has been given me upon the grave subject discussed by him. The proclamation of Sept. 22, 1862, commonly known as the Emancipation Proclamation, the proclamation of Sept. 24, 1862, and the orders of the Secretary of War, promulgated Sept. 26, 1862, furnish the occasion and subject for his criticism. It is his opinion that it is not within the lawful authority of the President to issue and carry out these proclamations and orders. It will be seen by the careful reader, that, notwithstanding the two proclamations are essentially different in purpose, character, and proximate motive, they are so indiscriminately treated by him, as to make it sometimes difficult to know, to which the arguments of the ingenious writer refer; it will also be seen, as has well been said by Prof. Parsons, in his letter to the Boston Daily Advertiser, that there are, touching the Emancipation Proclamation, three questions only. First: Had the President, as the civil executive, constitutional power to issue it? Second: Granting he had the power, was it expedient to use it? Third: Has he power, as Commander-in-chief, to issue it at this time, as an act of war? These three questions, again, are so indiscriminately treated, as sometimes to mislead, and sometimes confuse the reader. This is, perhaps, the consequence of a desire, on the part of Judge Curtis, to bring the discussion within a convenient space; but such a purpose should be kept subordinate to the higher object of arriving at just and true conclusions. Of the proclamation denouncing interference with enlistments; and of the orders of the Secretary of War, establishing a provostmarshal system through the country, it is not my purpose to say more, than that they were probably intended as measures of military police, and were conscientiously conceived to be necessary. At least, they had their origin in the paternal and benevolent desire of Mr. Lincoln to protect us from the evil agencies of treason; and no man has dared to charge that any unworthy motive has caused the arrests and detentions which are complained of.1 1 At the publication of the first edition of this pamphlet, it was considered best to keep the discussion within about the space occupied by "Executive Power." For that

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Of the Proclamation of Emancipation, I shall endeavor to show that it is a lawful and necessary measure of war. reason, the text was written as it stands, and not because the writer would be understood as admitting any shadow of foundation for the traitorous clamors against the government which have filled the air. Since that writing, the in-coming chief magistrate of a great state has declared, with significant inuendo, "The first law recorded for my observance is that, declaring that 'it shall be the duty of the governor to maintain and defend the sovereignty and jurisdiction of the state.' " There are those who regard this as the expression of an intention to provoke a conflict between the state and federal authorities. If this is so, the subject of "arrests and detentions" is likely to acquire new importance, and in default of ability on my part to give the matter a better treatment, I copy the following from a most complete and admirable work, by William Whiting, Esq., of Boston, entitled, "The War Powers of the President," &c., which has lately appeared. "What is the extent of the military power of the President over the persons and property of citizens at a distance from the seat of war — whether he or the war department may lawfully order the arrest of citizens in loyal states on reasonable proof that they are either enemies or aiding the enemy — or that they are spies or emissaries of rebels sent to gain information for their use, or to discourage enlistments — whether martial law may be extended over such places as the commander deems it necessary to guard, even though distant from any battle-field, in order to enable him to prosecute the war effectually — whether the writ of habeas corpus may be suspended as to persons under military arrest, by the President, or only by Congress (on which point judges of the United States courts disagree) —whether, in time of war, all citizens are liable to military arrest, on reasonable proof of their aiding or abetting the enemy — or whether they are entitled to practise treason until indicted by some grand jury — thus, for example, whether Jefferson Davis, or General Lee, if found in Boston, could be arrested by military authority and sent to Fort Warren? Whether, in the midst of wide-spread and terrific war, those persons who violate the laws of war and the laws of peace, traitors, spies, emissaries, brigands, bushwhackers, guerrillas, persons in the free states supplying arms and ammunition to the enemy, must all be proceeded against by civil tribunals only, under due forms and precedents of law, by the tardy and ineffectual machinery of arrests by marshals (who can rarely have means of apprehending them), and of grand juries (who meet twice a year, and could seldom, if ever, seasonably secure the evidence on which to indict them)? Whether government is not entitled by military power to P R E V E N T the traitors and spies, by arrest and imprisonment, from doing the intended mischief, as well as to punish them after it is done? Whether war can be carried on successfully, without the power to save the army and navy from being betrayed and destroyed, by depriving any citizen temporarily of the power of acting as an enemy, whenever there is reasonable cause to suspect him of being one? Whether these and similar proceedings are, or are not, in violation of any civil rights of citizens under the Constitution, are questions to which the answers depend on the construction given to the war powers of the Executive. Whatever any commander-in-chief, in accordance with the usual practice of carrying on war among civilized nations, may order his army and navy to do, is within the power of the President to order and to execute, because the Constitution, in express terms, gives him the supreme command of both. If he makes war upon a foreign nation, he should be governed by the law of nations; if lawfully engaged in civil war, he may treat his enemies as subjects and as belligerents. "The Constitution provides that the government and regulation of the land and naval forces, and the treatment of captures, should be according to law; but it imposes, in express terms, no other qualification of the war power of the President. It does not prescribe any territorial limits, within the United States, to which his

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Before setting out upon the argument before us, however, it is important to review the peculiar character and purpose of this war, and the situation in which it finds us. The true and real life of a nation is the political idea upon which it is based. The ideas of our government are, Liberty and Unity. The form, of a government is entitled to greater or less respect, according as it, in a higher or less degree, conserves the governmental idea. The Constitution, which is the form of our national government, has been justly admired and revered, because it has proved itself well adapted — until treason assailed it by force — to preserve and perpetuate liberty and unity. But that noble instrument is not the cause, but the means of American freedom. The charter of our free system of laws is the Constitution, but the charter of the Constitution is, the purposes for which it was erected, and which are thus declared in the preamble: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, PROMOTE THE GENERAL W E L F A R E , and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America." Ordinarily, the mind stops at the Constitution, as the Alpha and Omega of American liberty; and it is eminently safe, judicious, and proper, that this should be the rule of argument when questions arising from or under the Constitution are being considered. Such would be all questions touching the laws, their administration, the powers and functions of Congress, and of the President. The proximate source of light, and authority for all such questions, is the Constitution. But where the Constitution itself is the subject of consideration, and the question is, shall it exist or cease, and the President finds his powers, as its military champion, challenged, the mind looks instinctively through the Constitution to that broader charter upon which it rests. And this it does, not for the purpose of military operations shall be restricted; nor to which the picket guard, or military guards (sometimes called provost marshals) shall be confined. It does not exempt any person making war upon the country, or aiding and comforting the enemy, from being captured, or arrested, wherever he may be found, whether within or out of the lines of any division of the army. It does not provide that public enemies, or their abettors, shall find safe asylum in any part of the United States where military power can reach them. It requires the President, as an executive magistrate, in time of peace to see that the laws existing in time of peace are faithfully executed — and as commander-in-chief, in time of war, to see that the laws of war are executed. In doing both duties he is strictly obeying the Constitution."

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finding a "higher law" which shall contradict or thwart the Constitution (dangerous fallacy), but a higher law which shall sustain and be in agreement with it. But to return to the situation: a great people finding themselves in possession of a great and vital political idea, have devised a scheme for its protection and perpetuation. This scheme is the Constitution. A part of the policy of this scheme is to create a civil office, of supreme executive functions, the incumbent of which is called the President. This office is artificial and original with the Constitution. Being so, it is necessary that the charter which creates it, should also limit and define its duties and powers. This is easily done, for it is in the nature of civil powers and duties, that they may be defined and limited in advance. For, they are supposed to be exercised, as a part of an orderly system in the midst of order; and, therefore, it is that the powers and duties of the civil Executive are clearly set forth. Of the acts of the President, therefore, constitutionality and unconstitutionality may be predicated. The authors of this scheme, deeming it necessary, also, to provide means of defence against hostile force, authorized the Congress "to raise and support armies," and "to provide and maintain a navy." Now, as military enterprises are eminently executive in their character, it is necessary that armies shall be under the control of some person chief in command, who shall become the depositary for the time being, within the sphere of his command, of all the war powers, rights, and discretion, which belong to the nation. It is, therefore, provided that the person who shall from time to time be President, shall also be Commander-in-chief of the army of the United States, and of the militia of the several States when called into the service of the United States. The office of Commander-in-chief is not original with the Constitution; but has existed and been recognized from the earliest history of civilized warfare. Its functions are to be performed after disorder has partially or completely overturned the civil power, and produced circumstances, the character of which cannot be foreseen. They are, for that reason, indefinable in advance, except in these general terms: that the Commander-in-chief, in time of war, is authorized and bound to use any and all accessible means not forbidden by the laws of war, which in his judgment may be useful or necessary to subdue the enemy. The Constitution having thus recog-

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nized this necessary office, and declared that the President shall be its incumbent, leaves the matter there. The duties which a Commander-in-chief may be called upon to perform, under the laws of war, are the just and sole measure of his powers; that is to say, he is given power equal to the demands of his duty. These powers it is impossible to declare in advance; such as they are, they inhere in the eternal frame of things. Constitutionality and unconstitutionality cannot, therefore, be predicated of the acts of the Commander-in-chief. We may say of them, that they are lawful or unlawful, but the tests are military law and the necessities of the occasion. The Constitution creates the Presidency, and instructs and binds the President; but it only recognizes the necessity that some person shall have chief command, and provides the person to meet the necessity; but neither instructs nor binds him to any duty, or the manner of performing any duty. The President, then, is a constitutional officer, and his functions are constitutional; he is, also, constitutionally the Commander-in-chief, but his functions as such in time of war are extra-constitutional. If these two offices were held by different persons, the distinction would be plain to all; but, their joinder in the same person, tends to confuse the mind without essentially altering the case. I do not, by the phrase "extra-constitutional," mean to intimate that any person in this government can, under any circumstances, lawfully exercise any power which contradicts, varies, or in the least derogates from, the Constitution. To attempt such a thing would be moral treason. But, upon the outbreak of war, the nation, in its character as a nation, receives and deposits with its military executive vast accessions of rights and powers, under the laws of nations; simplest among which, is the right to kill. These rights, with us, are the faithful allies of the Constitution, fighting with and for, but never against its spirit or letter. Though they are the faithful friends and servants of the Constitution, they are not constitutional powers; and I am compelled to call them extra-constitutional for want of a better name. The political situation being such as has been described, the nation finds itself attacked. The attack is from within and not from without, which is the same as to say, not by persons claiming to be injured by any act of bad neighborhood, but by persons discontented with the internal form or administration of the governmental idea.

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The peril is not merely loss of territory, or the payment of tribute to a conqueror, but absolute privation of national life. In such a war the Commander-in-chief is called upon to act; and as has already been said, his powers are, under the laws of war, to be measured by his duties, and his duties by the necessities of the occasion. The necessity is to preserve the national life; the duty is to use all requisite means, not forbidden by the laws of nations, and the power and authority strike their roots deep into that first maxim of human language, "self-preservation is the first law of nature." The peculiar character and purpose of this war is thus alluded to, not because it is supposed to give the nation, or their representative and depositary for the time, any powers which he would not have in a foreign war; but because they justify and demand the extremest exercise of all the powers he has. As to our rights, they are greater than they would be against a foreign enemy, for a sovereign nation engaged in the duty of suppressing an insurrection of its citizens may, with entire consistency, act in the twofold character of sovereign and belligerent. (Upton's Mar. War and Prize, 212; MABSHALL, Ch. J., Rose v. Humilly, 4 Cranch, 272. See opinion of SPBAGUE, J., in case of the prize-ship Amy Warwick, Boston, 1862; and opinion of CADWALADER, J., in case of prize-ship General Parkhill, Philadelphia, 1861.) "Against those whom the law cannot reach," says Demosthenes, "we must proceed as we oppose our public enemies, by levying armies, equipping and setting afloat navies, and raising contributions for the prosecution of hostilities." (Grotius, Prolegom. § 23.) But, unlike other enemies, they may, when our arms have prevailed against them, be brought to suffer under the municipal law as criminals; indeed, there is no other way to punish treason, except in the manner pointed out by the Constitution. Even Jeff. Davis has, remaining to him, the right to be constitutionally hung. It would have been better to have stated sooner what shall now be observed once for all, that the duties of the Commander-in-chief are divisible into two classes: those routine duties, fixed by law under the authority to Congress to "raise and support armies," such as organization of the army, appointment of officers, &c., which belong equally to peace and war; and those other undefined duties which arise only in time of war. This first class, of routine duties, relates to the citizen, and can be foreseen and provided for by the sovereign legislative power; the second class arises out of the acts

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of the enemy, relates to him and his abettors, cannot be foreseen, and is left to be governed by the laws of war. The fundamental fallacy of Judge Curtis' pamphlet is, that he utterly confounds these two classes of powers, as well as the difference between the rules applicable in war to the citizen, and those applicable to the enemy. It is these latter powers and duties only, which are intended to be described as extra-constitutional. The laws and rights of war which belong to the nation, and are for our use temporarily vested in the Commander-in-chief, are declared by Burlamaqui (Prin. of Nat. & Pol. Law, vol. ii., ch. 5), who cites Grotius, to be substantially contained in the following rules: First — Everything which has a connection morally necessary to the end or object of the war is permitted. For it would be to no purpose to have a right to do a thing if we could not make use of the necessary means to bring it about. Second — The right we have against our enemy, and which we pursue by arms, ought not to be considered only with respect to the cause of the war, but also with respect to such fresh causes as may arise during its progress. Third — A great many things otherwise unlawful are yet permitted, because they are the inevitable consequences of war, and are supposed to happen contrary to our intention. Under these general rules, many particular maxims range themselves. Every war is supposed to be defensive in its principles, though it is offensive in its policy, as where attack is the best method to repel threatened invasion; and he who first renders force necessary is the aggressor, though he may not be the first who applies it. (Vattel, b. 3, c. 6, §§ 91,100.) For the purpose of defence, a nation is free to use against the enemy, violence and terror, which are the proper characteristics of war, ad infinitum, until it has repulsed the threatened danger and obtained security for the future. (Burlamaqui, ib.) We may employ strategy and artifice, provided it be without treachery or breach of promise. We may also appropriate the enemy's goods, public and private, if we can thereby weaken him or strengthen ourselves; for, says Cicero, "it is not against the law of nations to plunder a person whom we may lawfully kill." (Cie. de. Off. lib. 3, ch. 4.) We may suspend his civil government, and establish military rule

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in its place, for the management of civil affairs. ( Letter of Pres. Polk to the Sec. of the Treas., on the subject of mil. contributions, March 23, 1847. Fleming υ. Page, 9 How., 603.) We may seize upon private property, by way of penalty for the illegal acts of individuals, or of the community to which they belong. So, also, if the offence attach to a community or town, all the individuals of that community or town are liable to punishment, and we may either seize their property, or levy upon them a retaliatory contribution, by way of penalty. (Hall. Int. L., 458. See Scott, Proc. in Mexico, Ap. ix, 1847; Cong. Doc., 30th Cong., 1 sess., Ex. Doc., No. 56, p. 127. ) There may be cases of necessity, so pressing even, that the care of our own preservation will oblige us to the extremity of putting to death prisoners-of-war, which, under any other circumstances, would be absolutely criminal. ( Burlamaqui, ib. ) The state of war into which the enemy has put himself, permits us also to take advantage of any occasion or disposition which we may find in his subjects, or any one of them, to commit treason against him. For we are no more obliged, strictly speaking, to respect the right he has over his subjects and dependants, and the fidelity they owe him as such, than their lives and fortunes, of which we may certainly deprive them by right of war. And it is to be observed, that the law of nations allows much difference between a fair and legitimate enemy, and rebels, pirates, and highwaymen. The most religious princes make no difficulty to propose even rewards to those who will betray such persons; and the public odium under which men of this stamp lie, is such, that nobody thinks the measure hard, or blames the conduct of the prince, in using every method to destroy them. (Burl., vol. ii., ch. 6, §§ 18, 21, 24.) He who is engaged in war derives all his right from the justice of his cause. Whoever, therefore, takes up arms without lawful cause, can absolutely have no right whatever; every act of hostility which he performs is a crime. He is guilty of a crime against the enemy, and against his own people, whom he forces into acts of injustice, and who lose their lives and property; and, finally, he commits a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example. (Vattel, b. 3, ch. 9, pl. 183, 184.) Many incidents follow war which are misfortunes, and are not properly chargeable to the aggressive party. Thus, the brutal license

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of soldiers, which is sometimes shown after the capture of a town, is to be regretted, but the possibility that it might transpire would be no argument against capturing the place. Burlamaqui further illustrates the same idea by saying that we may attack a ship full of pirates, though there be women, children, and other innocent persons on board. Assuming it to be clear, from the foregoing observations that, while the Commander-in-chief is a constitutional officer, his war functions are derived from the broad code of war; and that the general principles of that code have been made sufficiently intelligible for our present purpose; and it being borne in mind that the war is upon our part a struggle for national life, and the principles of government which underlie the Constitution; and that the enemy, who have made war without cause, are also rebels and traitors, against whom the law of nations permits the utmost stretch of all the characteristics of war; we are in a situation to proceed to a more intelligent examination of Mr. Lincoln's Proclamation of Emancipation, and Judge Curtis's argument against it. It must be insisted, at the outset, however, that one broad and vital distinction, which it would seem Judge Curtis purposely ignores, shall be kept constantly in sight. It is, that no man can, at the same time, be our enemy, deserving our utmost wrath, and a friend, entitled to our support and protection. Rebels in arms against the Constitution, must not be spoken of, as men having constitutional rights. The whole scheme of Judge Curtis' argument seems grounded in a studied confusion of these two classes of persons; and such a solecism, at such a crisis, becomes almost a crime. Let it then be borne in mind, that, while the loyal citizen retains all his constitutional and legal rights, as in peace, the armed rebel, having voluntarily withdrawn from the protection of the Constitution and submitted himself to the arbitrament of war, has the same rights as any traitorous public enemy and parricide — no more. The proclamation will be found, upon examination, to treat of subject-matters coming within its author's functions as President, his war powers as Commander-in-chief, and his routine or peace duties as Commander-in-chief. It commences — "I, Abraham Lincoln, President of the United States, and Commander-in-chief of the army and navy thereof, do hereby proclaim and declare, that hereafter, as

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heretofore, the war will be prosecuted for the object of practically restoring the constitutional relations between the United States and the people thereof, in such states as that relation is or may be suspended or disturbed." Subordinate to this general declaration, and in accordance with this general purpose, he proceeds to announce his intention to recommend, as President, the adoption of certain measures by Congress; as a routine duty of the Commander-in-chief, he promulgates an article of war, and calls attention to an act of Congress. But the important portion of the proclamation is that, wherein he, as Commander-in-chief, embodying all the executive war powers and rights of the nation, as in his office of President he embodies the element of their civil executive sovereignty, declares that from a certain day all persons held as slaves in states or portions of states, the people whereof shall then be in rebellion, shall be thenceforward and forever free. The first question concerning this remarkable claim to power is — Has he, as civil executive, the constitutional authority required? To this the unequivocal answer is — No! Second — Had he the power, as Commander-in-chief, to issue the proclamation at this time as an act of war? Third — Having the power, was it expedient to exercise it? Let us not lose sight of what it is he purposes to do; it is to restore the constitutional relations between the United States and the people thereof, in certain insurgent districts. More than this he has no right or occasion to do, and succeeding in this, his duty will be fully performed. What, then, were these constitutional relations which are now suspended or disturbed. They were, the obligation and privilege to join in a common government; the obligation and right of common defence; the duty to obey and the right to enjoy protection under the supreme law of the land. But was ownership in horses one of the constitutional relations between the states? No. But it was a right, nevertheless, and its chief protection was the Constitution, though that instrument contains no mention of it. Was ownership in slaves one of the Constitutional relations referred to? Guided by the same principle, we answer, No! But it was a right,

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nevertheless, enjoying the same kind and degree of protection. Though often carelessly spoken of as a constitutional right, it had no special constitutional warrant, over any other property right, but rested under the same general provision which reserves to the states all powers for the regulation of their local concerns not granted to the general government. The same provision protected or permitted the protection in Georgia of the right to life, the right to own horses, and the right to own slaves. Constitutionally, neither could be said to have a higher warrant than the other; but the two former had high natural and traditional authority which the latter lacked. Yet the privation of those two by force in time of war is not generally considered unconstitutional, or a disturbance of constitutional relations. But slavery is said to be a peculiar institution, and it is so in this respect, at least, that having a narrower charter of right, it claims a broader protection and privilege than the others. It is necessary to test this claim. Let us suppose an analogous peculiar institution: If, in Georgia, there existed by state law a right of property in unreclaimed wild animals, such as the law calls ferse naturae, would it, in time of war, and as a measure of harm to their hostile owners, be unconstitutional to kill or entice away those beasts? Clearly not. It appears, then, that it is not necessary to the restoration of constitutional relations that the dead killed by us in battle, and who had a constitutional and natural right to life, shall be restored; nor that the horses seized by us for military purposes from citizens of rebellious communities, and which were owned by natural, and protected by constitutional law, shall be returned; nor that the animals ferae naturse shall be returned to the state, place, and ownership, from which they were taken. How is it, then, that slaves, who are certainly held by a lower tenure than horses, and precisely the same tenure as the wild animals in the suppositious case, must alone be kept in the status in which the war finds them, under penalty that by the disturbance of the relation between them and the owners, some incurable fracture of constitutional relations will take place. The reductio ad absurdum seems the only process known to logic which is adequate to deal with this anomalous claim. It seems clear, then, that the President will not necessarily find his purpose of restoring constitutional relations, rendered futile by the fact — if such should happen to be the case — that the Commander-

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in-chief, in the prosecution of his purpose to conquer rebellion and end the war, has, either temporarily or permanently, disturbed the relation between certain rebel masters and their horses and slaves. And since we are assured that the President is not to be embarrassed, we are prepared to look with more favor upon the plans of the Commander-in-chief. What is that which he proposes? To set free, by force of military power, and as a measure of offence and defence, the slaves of rebellious communities. In other words, there are in the rebellious communities, which it is the duty of the Commander-in-chief to subdue, a great number of persons actively engaged in supporting the war, by providing subsistence for the rebel armies. They are forcibly held to this service by the same men, and the same inimical authority, which are now assaulting the life of the nation. In the interest of the nation, and for the purpose of weakening the enemy, the Commander-in-chief proposes to disregard and invite the persons so held, to disregard this local authority, and cease to serve it. What is the objection to this? It is scarcely possible to quote or condense Judge Curtis's statement, without diminishing its plausibility; but, in substance, he says that "the proclamation, if taken to mean what it in terms asserts, is an 'executive decree,' that at a certain time all persons held as slaves, in certain localities, shall be free;" that "the persons who are the subjects of this proclamation, are held to service in the states where they reside by state laws, under authority as clear and unquestionable as the laws of any state on any subject;" and that therefore "this proclamation, by an executive decree, proposes to annul and repeal valid state laws." If the premises of this argument were sound, it would be more difficult to answer; but it seems that, while Judge Curtis is too skilful a logician to err in his method, he is not free from human fallibility to err in his matter. The fallacy, not to say sophism, lurks in the very head of the argument — the first propositions, that the proclamation is an "executive decree," and that to free slaves, is to annul and repeal the laws under which they were held. It is true, that Mr. Lincoln describes himself, in the proclamation, as the executive, when, to have been technically correct, he should have called himself the commander-in-chief. Undoubtedly, he used the word in that broader sense, in which whoever does an act, whether civil or military, is an executive; and not in the popular

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sense in which "executive" is a synonym for "president." In other words, he meant military executive and not civil executive. But, however that may be, it is of no importance, and binds neither him nor us. We know his powers as well as he, and are equally able to give a designation to his acts. Had he chosen to call himself king of Great Britain, it would not have detracted from the true force of whatever he rightfully did as Commander-in-chief. Had he called the instrument a general order, its real character would have been the same; but Judge Curtis could not have startled the public ear by miscalling it "decree," a name which suggests emperors and absolutism. It "repeals and annuls valid state laws," says he. Were this the effect, or the attempt, it would be startling; for the spectacle of a civil system, overturned, destroyed, repealed, or annulled, by arbitrary military force, is not an inviting one for the eyes of constitutional republicans, even where the system is that of an enemy. But such is neither the intent nor possible consequence. The act being military, is capable to produce only a military result. The military power suspends, but never destroys the law. So well has its effect been understood for ages, that it has grown into a maxim: Inter arma silent leges. But though military power never destroys the law, its very first and principal effect is to destroy rights and things existing under the law. It is this which constitutes war. It may also suspend the relation between persons and things, under such circumstances, that the right or relation can never be restored. Thus, military power may seize a man's house, and suspend his right to its occupancy; yet, when the war ends, and the enemy retires from its possession, he will, if no treaty stipulation intervenes, find himself, by the very fact of peace, reinstated in all his rights to his property. But if, in the mean time, the military power has destroyed the house, the owner will find himself debarred from its enjoyment, it is true, but, by the operation of the necessity which caused its destruction, and not by anything inherent in military law or power. The general rule as to immoveable property is, that peace restores the proprietor to his former rights, unless the terms of peace prescribe otherwise; as to moveable property, the contrary rule, that peace confirms and perfects the title of the captor, prevails, subject to exceptions hereafter to be mentioned. What this proclamation, or general order, proposes to do, is, to

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suspend the relation between Robert Toombs, a voluntary white resident of Georgia, who is, by that fact, presumptively a rebel, and Tom, his slave, who is presumptively loyal, so far as he is free to be anything. The civil status of Tom was slavery, because certain civil interests demanded it. His military status is to be freedom, because the general military interests demand it. This does not abolish slavery; it only abolishes the slave. For though Tom may take advantage of his new status to remove beyond the reach of future contingencies, yet, when the martial law is removed, Mr. Toombs may purchase another slave in Maryland, or wherever else he can procure a legal title, and hold him, afterward, in Georgia, under the same law as before. It is unnecessary to inquire whether — the necessity of the occasion demanding it — the President might have done any act which would have rendered it impossible hereafter to hold slaves in Georgia; or, whether the Congress, representing in war the deliberative and legislative sovereignty, might do such a thing. As to these questions there are differences among lawyers; but it is not this, which the proclamation purports to do. The language used is — "That, on the first day of January, 1863, all persons held as slaves within any state, or designated portion of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever, free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, or any of them, in any efforts they may make for their actual freedom." The right, in time of war, to seize, destroy, convert, and transfer, the property of the enemy, is uncontroverted. These rebels call these slaves property; and were it proper for our government so to regard them, our right to appropriate or sell them would be undisputed. One point of Judge Curtis's cavil against the action of the Commander-in-chief is, that he has declared these slaves free, in advance of his ability to lay his hands upon them, and convert them into possession; a ceremony required by the law of nations to vest in the captor of enemies' goods any transferable title. To this, several things may be answered; and, first, if Mr. Lincoln fails to make good his declaration and promise, the only sufferer will be the slave, and I do not understand that it is in his interest that Judge Curtis complains. Second, the customary law of nations requires the belligerent,

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first to possess himself of his enemy's property, before he can exercise acts of ownership over it, not because of any lack of right in the belligerent, but because of a lack of physical ability to make good his right in any other way. The right of the belligerent is, to do his utmost to deprive the enemy of the use of his property; as to irrational animals and dead matter, which form the bulk of all property, the utmost which can be done by the belligerent for that purpose, is to take possession of it himself. If the president were a magician, and could, by any effort of his art — by a smell of fresh hay, or other enchantment, potent with horses — induce those creatures to trot out from their pastures, and come within our lines, Judge Curtis will not pretend that would not, under the law of nations, be a lawful and complete capture. Now, the property in question here, is also a person, possessed of reason, speech, and power of action, and thus capable of becoming an ally in the matter of depriving the enemy of his goods. To reiterate, our right is, to deprive the enemy of his goods in every possible way. The only possible way to deprive him of his horse and wagon, is to lay hands upon them — but we may reach his slave by proclamation, and invite him, as our ally and by our authority, to lay hands upon himself. Whenever we may obtain possession of the horse, we have acquired a good title, which we may transfer to another. Whenever the slave has, under Mr. Lincoln's proclamation, done one voluntary act inconsistent with his master's assumed right of full control over him, he has, as our agent and ally, taken possession of himself, and is, in advance, as the price of his alliance, transferred forever to himself. Up to this point, we consider the negro as property, because the enemy, against whom the argument is made, so treat him; and we have a right to adopt their ground, so far as it can be made useful to him; and thus far the question has been one of right between belligerents. Now, when a captor has once obtained possession of enemies' goods, he, or his assignor, holds by a good, perfectable title, i. e., a title which will become complete by the return of peace, without any treaty stipulation prescribing the contrary; but until that time the title is liable to be lost by recapture, and the application of what is known in law as the jus postliminii. This right of postliminy, was a fiction of the Roman law, by which persons and sometimes things, taken by an enemy, were restored to their original status and ownership, immediately on coming again under the power of the nation to which

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they formerly belonged. By it, the returned son came under the power of his parent; and the returned slave, the power of his master. (Halleck's Int. L. and L. of War, 866. ) But, inquires the startled friend of the slave, is it possible that, by recapture, or any refined technicality of law, this freed-man can ever be lawfully returned to slavery? I answer, emphatically, No! The slave, whom we have heretofore considered merely as a chattel, now stands up and asserts his manhood; not as a newly-acquired right ( for as between the master and slave, the right of the latter to his freedom has always been complete ), but as a right newly recognized by a powerful ally, heretofore bound to the master, to a silent acquiescence in his usurpation, but now released from that compact, and newly bound to the slave to "maintain" his freedom. This question is no longer one between belligerents simply, but is complicated by a new question — the claim of a man created in the image of his Maker, to enjoy civil liberty. The right of capture and recapture of ordinary goods rests on the same basis, to wit, that they are property by law of nature, and may be passively transferred from hand to hand. But the slave whom we capture as property, is, after his capture and the transfer to himself of all the captured title of his master, no longer a chattel, but a man, insusceptible of recapture, except as a prisoner-of-war, entitled to all the rights and privileges of such persons.2 2 The right under the laws of nations to emancipate an enemy's slaves cannot be doubted; especially, in view of the precedents cited in the notes following this. The opposite doctrine has never been seriously asserted except by ourselves, through John Q. Adams, while minister to England in 1820; and the authority of his great name is against it, for he declares "It was utterly against my judgment and wishes; but I was obliged to submit, and prepared the requisite despatches." (Cong. Globe, 27th Cong. 2d sess. 1841-2; vol. ii., p. 424. See also his speeches of 26th of May, 1836; 7th of June, 1841; and 14th and 15th of April, 1842.) The right as a war measure has been exercised in modern times by England in the American wars of the Revolution and 1812; by France in St. Domingo in 1793-4; (Abolition d'Esclavage (Colonies Françaises) par Aug. Cochin, Paris, 1861, vol. i., pp. 14, etc.;) and by Spain in Columbia, through General Morillo. (See New American Encyclopedia, art. Bolivar. ) That slaves captured in war — even our own recaptured fugitives — are to be considered prisoners-of-war is established by the practice of this government. In 1836, Gen. Jesup engaged several fugitive slaves to act as guides and spies, and for their services gave them their freedom and sent them West. The administrations of Van Buren and Tyler sanctioned and approved his acts. In the same year, Louis, the escaped slave of one Pacheco, and who had fought against us, was captured. His master demanded him, but was refused, and the negro was set free. The President and Cabinet approved the conduct of Gen. Jesup, and afterward Congress sustained their action by rejecting a bill to compensate Pacheco. In 1838 General Taylor captured a number of negroes said to be fugitive slaves. Citizens of Florida, learning what

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The Roman slave was held as a captive taken in war, and whom, by the then existing rule of war, the captor might lawfully have killed; having spared his life, he was admitted to have a clear right to his person and services. This right, based on pagan equity, was considered indestructible. But the American slave is under no such obligation to his master. His liberty has been taken from him without his consent, by force and fraud, perpetuated by law and usage until the nation acknowledged the legality of his servitude. But when, even for an instant, his status as a slave is suspended, and he remitted to his natural rights as a man, there is no power on earth to take away his freedom, except by a repetition of the original fraud and force. Such an act the laws of nations abhor;3 and to prevent it, he had done, immediately gathered around his camp, intending to secure the slaves who had escaped from them. General Taylor told them that he had no prisoners but prisoners-of-war. The claimants then desired to look at them, to determine whether he was holding their slaves as prisoners. The veteran warrior replied that no man should examine his prisoners for such a purpose; and he ordered them to depart. This action being reported to the War Department, was approved by the Executive. The slaves were sent West and set free. "In 1838 many fugitive slaves and Indians, captured in Florida, had been ordered to be sent west of the Mississippi. Some of them were claimed at New Orleans by their owners, under legal process. General Gaines, commander of the military district, refused to deliver them up to the sheriff, and appeared in court and stated his own defence. His grounds of defence were, 'that these men, women, and children, were captured in war; that, as commander of that military department, he held them subject only to the order of the national Executive; that he could recognize no other power in time of war, as authorized to take prisoners from his possession. He asserted that in time of war all slaves were belligerents as well as their masters. The slave men cultivate the earth and supply provisions. The women cook the food and nurse the sick, and contribute to the maintenance of the war, often more than the same number of males. The slave children equally contribute whatever they are able to the support of the war. The military officer, he said, can enter into no judicial examination of the claim of one man to the bone and muscle of another, as property; nor could he, as a military officer, know what the laws of Florida were while engaged in maintaining the federal government by force of arms. In such a case he could only be guided by the laws of war, and whatever may be the laws of any state, they must yield to the safety of the federal government.' He sent the slaves West, and they became free." (House Doc. No. 225, 25th Cong., 2d sess.) 3 By the treaty of 1783, the British agreed to take no slaves away; notwithstanding, great numbers were permitted to follow them. General Washington remonstrated against this as a breach of the treaty, and demanded their return. Sir Guy Carleton, acting for the king, admitted that his government was bound to make compensation, but resented with asperity the idea that he would return any of these men, saying it was "unfriendly to his majesty to suppose" that he intended to have his officers take from "these negroes the liberty of which he found them possessed." ( Sparks' Writings of Washington, vol. viii., p. 544, App. ) Mr. Jefferson, complaining of some of the acts of Lord Cornwallis during the Revolution, makes the distinct admission that certain of them were palpable acts of war, in this language: "He destroyed all my growing crops, . . . he used, as was to be expected, all my stock of sheep, cattle, and hogs, for the sustenance of his army;

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the "executive government of the United States, including the military and naval authority," is pledged. 4 But to return to the question whether the proclamation repeals or . . . he also carried off about thirty slaves. Had this been to give them their freedom, he would have done right." (Letter to Dr. Gordon, Jeff. Works, vol. ii., p. 426.) In the well-known case of The Creole, certain slaves who had been put on board an American brig to go from Hampton Roads to New-Orleans, mutinied, killed a slaveowner, and compelled the crew to take the vessel into the British port of Nassau. The authorities, after an examination of the matter, detained nineteen of the negroes as connected with the murder, but permitted the rest to go or stay, as they pleased. The British government consented, on grounds of comity, to make compensation for the escaped slaves, but utterly refused to return them. ( 1 Phillimore, Int. Law, 343. ) In this decision they acted, doubtless, upon that view of the rights of negroes which was declared by Ch. J. BEST, in the case of Admiral Cockburn, upon whose vessel some escaped slaves took refuge, to wit: "He was not bound to receive them upon his ship in the first instance; but, having done so, he could no more have forced them back into slavery than he could have committed them to the deep." — Ibid., 339. France has been, from the earliest times, particularly jealous of all infractions of her general law of liberty; thus, while admitting the legal force of slavery under some circumstances, she has, in every instance where the strict letter of the bond has been evaded or relaxed, declared the freedom of the person claimed to be held to servitude under it. Bodinus ( L . i. de Rep. p. 41, cited in I philli. 344) relates two examples. The first was the case of a Spanish ambassador who brought a slave in his retinue. The slave, in spite of all remonstrance, claimed and obtained his freedom on entering in the French dominions. In the second instance, a Spanish merchant, happening to touch at Toulon, on his way to Genoa, with a domestic slave among his servants, when "hospes, re intellecta, servo persuasit, ut at liberatum provocaret;" the merchant complained that he had, bona fide, purchased the slave; that he was not bound by the law of France; that he was not resident there, but happened only to touch at a French port on his passage to Genoa, and that at least he ought to be remunerated for the purchase-money of the slave; but his remonstrance was fruitless, and he made a private bargain with his slave for the continuation of his services. In the cases of "Francisque," brought from Hindostán to France in 1558, (Denisart, Decisions Nouvelles, torn. 3, p. 406, tit. Nègre, η. 45) and of "Jean Borcaut," a negro creole (Causes Célèbres, vol. xiii.) the same general law, that, whenever a slave escapes for a moment from the power or control of his master he becomes by the law of nature, free, was maintained. The force of these examples is not weakened by the reflection that they are furnished by what was, at the time, a despotic state. Such was the law of liberty prevailing under an absolute monarchy, during what we complacently style the dark ages. Poland, also, during her existence as an independent kingdom, maintained the same doctrine. ( Ambassadeur et ses Fonctions, par M. de Wicquefort, 1. i., p. 418.) 4 It has been decided, even in the courts of slave states — and I understand Judge Curtis, in his admirable opinion in the Dred Scott case, to approve — that, when the master voluntarily takes his slave beyond the jurisdiction of the local law by which he holds him, the status of slavery is destroyed, can never be restored, and the man is forever free. Now, these rebellious masters have voluntarily made it necessary to introduce within the local jurisdiction a superior authority, the known effect of which — for every man is presumed to know the law, and intend all the legal consequences of his acts — is to disturb and change the status of the slave; for, the laws of war will permit us to take cognizance of only two descriptions of persons, viz., enemies or friends. The slave being thus made free, as a consequence of his master's voluntary act, ought not to be remitted to slavery in the one case more than in the other. ( See Josephine v. Poulteney, 1 Louis. An. R., 329. )

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annuls state laws; let us suppose another case illustrative of the same point. The state of Georgia has on her statute-book a militia law, under which all citizens capable to bear arms are enrolled, and by force of which they owe service and obedience to the state and their officers. This claim to service and obedience rests on precisely the same basis as the claim of the master upon his slave, i. e., "valid state law." These militia are now in arms, and being used against the government. Would it be regarded as unconstitutional for the military authority of the nation to declare these men absolved from military allegiance to the state of Georgia, and invite them to desert? Or would it be supposed that by this act the government had "annulled or repealed" the militia law of Georgia? It must be plain from what has been said, that it is not the law, but something existing under it, which is destroyed by the overruling force of martial power. There is nothing very startling about the matter, then, for the very first effect of all war is the disturbance and destruction of civil right. If we are not mistaken in supposing that it is now clear that emancipation by the military power, as a military measure, does not annul or repeal state laws, and differs from the result which always ensues where martial law prevails, only by having a wider extent, it remains to inquire whether, standing upon the clean footing of a war power, it is in accordance with the laws of war,5 and demanded by the necessities of the occasion. 8 The more enlightened opinion seems to be that, as between fair and legitimate enemies, it is a duty of honor and conscience which each owes to himself, not to use unworthy means to seduce the subjects of the other. But the case is different with rebels, to whom no one rightfully owes allegiance, and who are themselves unfaithful. Notwithstanding, the British did, in the war of 1812, seduce and take away large numbers of slaves, and although, by the express terms of the treaty of Ghent, they made compensation for some, it was only such as were, at the exchange of ratifications of the treaty, still within the places to be delivered up to the United States. It was not even claimed, by our government, that those who had been emancipated and sent beyond United States limits during the war, were to be paid for. The English raised a question whether, under the terms of the treaty, slaves still upon British vessels, lying, at the time of the ratification, in American waters, were intended to be included; and this question was, b y the convention of 1818, referred to Alexander of Russia. The emperor says, in his award, that "it is upon the construction of the text of the article as it stands, that the arbitrator's decision should be founded," and he construes the text against the British view. There being some objection still made by Sir Charles Bagot for his government, the emperor makes this supplementary explanation: "The emperor having, by mutual consent of the two plenipotentiaries, given an opinion founded solely upon the sense which results from the text of the article in

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What is there in it contrary to the laws of war? It is said that servile insurrection will ensue, and that non-combatants and innocents will suffer. Such is not the necessary consequence; and who has the requisite knowledge to affirm that it will take place? The object is to weaken the enemy by reducing his means of sustenance, and if insurrection by the freed laborers should transpire, it will be one of those unavoidable misfortunes which Grotius illustrates by the case of rapine in a captured town; and the destruction of women and children in a pirate-ship. Moreover, by the very terms of the proclamation, it is put in the power of the enemy himself to avert the danger by a return to duty. Would it be considered by any one, contrary to the laws of war to encourage, in the centre of Alabama, resistance by loyal white men to the confederate government? And, if not, what is there about a black insurrection so much more obnoxious to the law of nations than a white insurrection, except the bare possibility that the debased black — for whose continued debasement, in the midst of Christian civilization, the enemy alone is responsible — may be more cruel in his proceedings; and which result, the enemy, but for misguided persistence in treason, might surely prevent? Judge Curtis also objects that this proclamation will free the slaves of persons innocent of participation in rebellion. We are to act upon facts as we find them, and it does not appear that there is any considerable number of such persons, or that it is practicable at present to discriminate in their favor. It is possible, now, to deal only with communities. Individual justice must wait for calmer times. The proclamation does all that can be done in this respect, and promises a recommendation to Congress to provide for compensation to men who have remained loyal, for the loss of their property, including slaves. The loyal men of the South must bear the inconvenience which the war brings upon them, as well as those of the North; and it is a remarkable fact, that all the objections to emancipation come from the North, dispute, does not think himself called upon to decide any question relative to what the laws of war permit or forbid to belligerents." The irresistible inference from the language used is, that Alexander considered that the law of nations permitted the sequestration and emancipation of an enemy's slaves; that such persons, when emancipated, cannot be reclaimed; and that they are not subjects whom it is immoral to solicit to treason. His opinion is entitled to all the more weight since he was the largest slave-owner in the world, and specially interested in having the law of nations construed otherwise.

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while all the loyal men of the South, from whom we can hear, like Hamilton, Holt, Rousseau, and Johnson, are its supporters. Is the measure demanded by the necessities of the occasion? The same considerations belong, in a considerable degree, to this, and the question of expediency, and they may be treated together. As has been before remarked, the necessity of the occasion is, the preservation of national life, which is, the democratic idea. The war appears to be one of essential ideas. It is not confederate swords and muskets which threaten the existence of the nation, for these weapons may be destroyed, or used indiscriminately on either side of the quarrel; as, also, may the men who wield them. But the antagonistic principles which underlie and impel the stroke of battle, are irreconcilable. Fair Oaks, Antietam, Shiloh, and Bull Run, are related to slavery, just as the branches of a tree are related to its roots, or the assassin's blow to the murder in his heart. Slavery, which is, by its very nature, war with liberty, has simply remitted to the surface of politics some of its inherent tendencies. These tendencies and principles had entered into a compact of peace with us — the Constitution — and while peace remained, they were beyond the reach of interference. But the aristocratic idea, impelled by the necessities of its aggressive nature, has inaugurated war, and by that act become amenable to the code of war, which has for its first maxim — Destruction to the cause of war. Corresponding to this interior and essential necessity, for the destruction of slavery, there is a more external and practical necessity, which all can see. It is necessary to distract the attention of the enemy from operations in front; it is necessary, also, to weaken him, by seducing from his service the productive labor by which alone he is enabled to support his armies. Is it expedient to obey this necessity? Whatever is really necessary must certainly be expedient, or the greater no longer includes the less. Whether, upon all grounds, it was entirely expedient, or whether the matter was one of balancing reasons, it does not enter into my present plan to consider. I have no doubt that, on grounds of expediency, it is the wisest and most statesman-like act of this administration. The strong language of Prof. Parsons is, "I leave this

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question to the President, for he is honest and capable; he has considered it long and painfully. However wise I may be, or Judge Curtis may be, on this subject, the President is wiser, or all rules of probability fail." "I guess this is the law," said an indiscreet practitioner, before the chief-magistrate of a western village. "I guess it ain't," said the irate dignitary, "and I have the last guess." The Commander-in-chief, who must bear the final responsibility, and is clothed for the occasion with all the discretion of the nation, has exercised it finally.® If the premises and arguments so far are correct, we have adduced these conclusions — First: Abraham Lincoln, as Commander-in-chief in time of war, embodies all the executive war powers of the nation. Second: These powers are extra-constitutional, having their origin in the nature of things, and are recognized as an established code by all civilized nations. Third: Principal among them, is the right to end war and obtain security for the future, by destroying the cause of the war. Fourth: The proclamation in question is intended to have that effect, and is considered necessary to that end by the nation, speaking through its supreme military authority. Fifth: The ownership of slaves is to be distinguished from the right to own slaves. Sixth: The former was not one of the constitutional relations which bound this people, and therefore, to destroy the ownership of slaves will not render a restoration of the Union, under the Constitution as it is, impossible, any more than the destruction of the ownership of horses will have that effect. Seventh: The military power, acting through emancipation, does not pretend to destroy the legal right to own slaves, and is not, therefore, obnoxious to the charge of annulling or repealing state laws. Eighth: It is not against the laws of war to do a necessary act, even though it is possible, or, in extreme cases of necessity, even probable, that some unhappy conβ Judge Curtis objects that, the proclamation extends beyond the actual field of operations, and is to take effect in future, instead of the present, thus usurping the legislative function. It is only necessary to suggest in answer, first, that when used in favor of rebellion, the strongest argument loses its force; second, that every plan laid in the present, to be executed in the future, is legislative in the same degree; and, third, that the field of operations is wherever a rebel lives. The territory is ours, and the federal jurisdiction extends over every foot of it. Moreover, the federal flag is now planted within the borders of every rebel state, and we are, presumptively, in actual command of every rebellious locality.

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sequences may come to innocent persons. Ninth: It is by no means a necessary consequence of freeing slaves that harm shall come to non-combatants and innocents; and such accidental result, should it ensue, will be chargeable solely upon the enemy who might have averted it. Tenth: In short, the right to free all persons held as slaves in rebellious states, on the ist of January, 1863, is a valid war power; it is one necessary to be exercised; and its exercise is not forbidden by the Constitution or the laws of war. Many other suggestions against the power of the Commander-inchief are thrown out by his ingenious critic; but they will all be found to be auxiliary and dependent upon his main objections, which have already been answered. Such being the case, it is better to leave the intelligent reader to refute them for himself by an application of the principles already stated. Certain of them, however, should perhaps be specially adverted to. Thus, Judge Curtis refers to Mr. Lincoln's declaration — when speaking of the then proposed Proclamation of Emancipation — that he supposed he had the right to take any measure "to subdue the enemy" and this phrase, "to subdue the enemy," is reiterated by the author so frequently, in such connection, with such inuendo and emphasis, that the startled reader at last inquires whether it is the words, or the thing, which gives him such great uneasiness. He also compares the Commanderin-chief to generals in the field, intrusted with a certain expedition, in such a manner as to make one ask if it can be possible that he wishes to degrade, in the mind of the reader, the functions of that high office. It is true, that the martial power of the Commander-inchief is of the same kind and degree as that of a commanding general in the field, i. e., each has, when the emergency demands it, the power to do any and all things not forbidden by the Constitution, humanity, or the laws of war. But the emergency of the general in the field is fleeting; it embraces a point of time, or a certain enterprise, and his department is his field. The field of the Commanderin-chief includes the remotest point under federal jurisdiction, as well as the seas; the enterprise committed to him is the entire war; the emergency under which, and with reference to which, he must act, is the restoration of order, national supremacy, and assured peace. This emergency is not temporary, but is constantly with him.

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It has neither past nor future; it is, during war, an ever-present emergency. Thus, it is impossible to measure the powers of the general, in his field, by those of the Commander-in-chief, in his field, or vice versa. The powers and acts of each are to be scrutinized in the light of the emergency peculiar to his sphere and employment. The Commander-in-chief differs from all subordinates, then, just as the greater from the less; the superior from the inferior; the whole from a part. The professional reader will be embarrassed to discover how the case of Mitchell vs. Harmony (13 How., 115), which Judge Curtis cites, can apply to the power of the Commander-in-chief to take the property of an armed enemy. That was an action against a lieutenantcolonel for seizing, unnecessarily, the property of a loyal citizen, and it would almost seem that the Judge had forgotten that the persons whose property it is now proposed to take, are armed rebels, who have no standing except in the tribunal of war. Every reader will be amazed and indignant when, after seeing it declared that the "military commander" exceeds his powers, when "he controls the persons or property of citizens beyond the sphere of his actual operations," he discovers, by the context, that Jefferson Davis, et id omnes genus, are the "citizens" spoken of. The declared purpose of the pamphlet is to protest against infraction of the civil liberties of men in the North, who, if they are guilty, are within the reach of process of law; but the whole complexion of the argument changes, when it is urged to support rights which the rebel, by a resort to war, has utterly forfeited. I have found it impossible to do more within this space than outline the argument; it is to be hoped that abler pens will work at the elucidation of these great questions. The same treason and falsehood which confront our soldiers in the field, is skulking here — seeking to shelter itself behind forms of law until it can organize and perfect its schemes of villany. Loyal lawyers must drag it forth: it must have no refuge here. An enlightened and free profession should regard it as a special duty to refute and denounce, everywhere, the lying justifications and evasions by which rebellion hopes to escape consequences. If this is done; if the people are equal in courage to the demand of this greatest occasion of the world's history; if the government is steady, resolved, and, above all, bold;

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the crisis will be passed in safety; and America, instead of being overthrown by this avalanche of treason, darkness, lying, and all evil, will overbear it all, and plant the standard of liberty higher still — a beacon of hope to the oppressed of all the world.

Pamphlet ig Edward Everett Hale The Desert and the Promised Land. A Sermon. Boston, 1863

[Sermons exhorting Northerners not to waver in pursuit of the war were innumerable. One of the most interesting was one that Edward Everett Hale preached several times in 1862 and 1863 drawing an analogy between the Children of Israel fleeing from Egypt and the populace of the North. Hale equated the fears of the Israelites when they first arrived at the borders of Canaan with the peace sentiment beginning to spread among discouraged Northerners. Hale ( 1822-1909) was minister to the South Congregational Church in Boston. His most famous patriotic writing was a short story, "The Man Without a Country," which appeared in the Atlantic Monthly in December, 1863.]

And Caleb stilled the people before Moses, and said, Let us go up at once and possess the land; for we are well able to overcome it. But the men that went up with him said, We be not able to go up against the people for they are stronger than we. And they brought up an evil report of the land which they had searched unto the people of Israel, saying, The land through which we have gone up to search it, is a land which eateth up the inhabitants thereof; and all the people that we saw in it are of a great stature. And there we saw the giants, the sons of Anak, which come of the giants; and we were in our own sight as grasshoppers, and so we were in their sight. And all the congregation lifted up their voice and cried; and the people wept that night. And all the children of Israel murmured against Moses and against Aaron; and the whole congregation said unto them, Would God that we had died in the land of Egypt! or would God we had died in this wilderness! And wherefore hath the Lord brought us unto this land, to fall by the sword, that our wives and our children should be a prey? were it not better for us to return into Egypt? And the Lord spake unto Moses and unto Aaron, saying, How long shall I bear with this evil congregation, which murmur against me? I have heard the murmurings of the children of Israel, which they murmur against me. Say unto them, As truly as I live, saith the Lord, as ye have spoken in mine ears, so will I do to you: Your carcasses shall fall in this wilderness; and all that

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were numbered of you, according to your whole number, from twenty years old and upward, which have murmured against me, doubtless ye shall not come into the land concerning which I sware to make you dwell therein, save Caleb, the son of Jephunneh, and Joshua the son of Nun. But your little ones, which ye said should be a prey, them will I bring in, and they shall know the land which ye have despised, NUMBERS, CHAPS, XIII-XIV.

The whole history of the cowardice of Israel on this occasion, and of God's dealings with them, is an illustration of His course in all history. His purposes must be accomplished. But He often permits men to say how long or how short shall be the preliminary struggle. It is thus far that men are permitted to work with Him. None the less must the purpose of God be fulfilled. If the fathers shrink from it in their youth, they have to fulfil it in their age; or, if they turn away cowards then, they do but leave it as a heritage of struggle, effort, victory for their children. No shrinking of men holds back finally the work which God must have done. In this case of Moses and the children of Israel, the results involved, as we know, were of the first importance to the world. The establishment of Israel as an independent power, involved, as it has proved, the existence of the only altar where one God was worshipped rather than a thousand phantoms. It involved the maintenance of a religious system comparatively simple, pure and grand, and always growing simpler, purer, and grander. It involved the existence, in the very centre of the movement, commerce and war of the world, of a little nation, related and connected with all nations, to be the medium of Divine truth to all. It involved the providential preparation of a fit cradle for the Son of God, when His time should come; and of a fit fulcrum for His lever, when He should move the world. And, as it has proved, everything of worth and of beauty which has come to the world from His treasury of blessing, and every thing which is yet to come, depends on that desert march of Israel, — carrying the pure blood of Asia, and its pure faith, with the intellectual life of Egypt, and the results of its civilization, into the little centre whence Israel was to drive out the beastly Canaanite, and take up his possession. If Israel succeeded, light was to triumph over darkness, not only for that generation, but for all time. So long as Israel shrank, darkness was to triumph over light, and this not for that time only, but indefinitely. Such was the issue, as the Almighty saw it, when the twelve

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Jewish spies went up into Canaan and returned with their narration. The Israelities had left Egypt the year before, (it was in the middle of April that they left it, ) in great exultation. Of a sudden they had defied their task masters of the last fifty years, and formed themselves a nation. Of a sudden it proved that six hundred thousand bricklayers and brickmakers, artisans, shepherds, became six hundred thousand soldiers, when they had a good cause and the Lord for a leader. Their time of triumph lasted as the year went by, and until the second year came in. It was in the second year of this new military and independent life, it was when the power of Egypt was really crushed, that the faintness of Israel came also. They had made a beginning, but they did not see the end. They had left the old, but they had not come into the new. Such was their condition when Moses sent forward these twelve men to report on the future, and on the way to it. These twelve men returned agreeing that the land was good, but ten of them were faint hearted, and talked of giants and armies and fortresses, and said, "we cannot take it;" and on their report, this homesick people were at once discouraged. "They lifted up their voice and cried. They wept that night, they murmured against Moses and against Aaron, and said, would God that we had died in the land of Egypt; wherefore hath the Lord brought us into this land to fall by the sword, that our wives and our children should be a prey? were it not better for us to return into Egypt? and they said one to another, let us make a captain, and let us return into Egypt." That was the Peace Policy of those times. For one wretched and eventful day, it controlled the popular counsels of the people of Israel. The value of the history for us, is, that in circumstances very similar we can follow out the tale and see what came of that fatal policy. That people could not see it. They could not understand that the destinies of a world hinged on their faith and courage in that hour. This was what followed. Moses and Aaron were directed to accede to the hasty demand of the mutinous people. And when, only the next day, the people arose from their cowardice and shifted back from their mutiny, they were taught that no dependence could be placed on such as they. To work the works of God, God needs men as steady in their little way as He is in His great way; as constant, as fearless, as unswerving. His children, if they are to work

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with Him must be indifferent to apparent failure, as the sun in His heavens is indifferent to apparent eclipse. These men who had come out of Egypt had said they did not choose to go into Canaan. Then they should not go in. There should be no changing of minds. But that was all they could decide. Their children should go in; or, the children of their children, if they flinched. And for these cowards, all that they gained by their cowardice should be a desert life. They should stray to and fro for forty years, without a country and without a home, because, at the appointed moment, they had refused to take the country and the home their God had provided. And this was just what happened. Their mad dream of returning to Egypt vanished, of course, when the morning came. Revolutions never go backwards, cannot go backwards. This people might have gone forward into a land flowing with milk and honey. They refused to do that. They must then stay in the wilderness. With the sky for the roof, and the stones for their bed, with the manna which they grew to hate so, for their only food, with the scorpions and serpents for their punishment, with the Bedouins of Bashan, and Ammon, and Amalek for their daily enemies and their nightly robbers; with these surroundings, it is desert marches and years of wretchedness and unbroken war, which they choose in their cowardice on that mad day when they shrink from the one final effort which the Lord demands; will not array themselves every man, and march as one host resistless into Canaan. Forty years of such wretchedness passed, and their children were wiser than their fathers. A race grew up of men who knew not Egypt nor its flesh-pots; whose hearts were made bold by war; whose feet were hardened by desert marches, and whose souls were alive to the promises of God. The policy of cowardice died out; or I should rather say, the hallucination of irresolution died out. A race of men came in, afraid of nobody but God, and willing to put through what they began upon. That race of men crossed Jordan, drove out the human beasts who lived there, established in their place, God's kingdom as far as they knew what it was, and thus was the first line written of the INTRODUCTION TO THE HISTORY OF THE P E R F E C T

WORLD.

I do not suggest this parallel between that familiar history, and our history of to-day, as if there were anything singular in the close

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similarity of the two cases. There is nothing singular about it. Each of them springs even in its details, from essential principles of human nature which have become fundamental principles in history, and I could select a hundred parallels where I do select two. For, wherever God has a great design to accomplish, it is easy at the outset to excite for it men's enthusiasm; — men being God's children. This enthusiasm will be unanimous, if the issues are simple and clearly seen. The danger and the difficulty are not at the beginning, as the French proverb falsely supposes, but they come when the reaction comes. The reaction comes as soon as the earthly elements in man can get a chance to assert themselves. When men's laziness begins to speak, or their old habits, or their avarice, or their hunger or thirst, then is the danger of the reaction; of the cry "Who is this Moses?" and "Why did we not stay in Egypt?" The writers of history recognize this reaction after enthusiasm, as something which is as certain as headache after intoxication. And this principle gives to us such phenomena in history as the cowardice of the Israelites related here, as the coronation of Augustus after the murder of Julius Caesar, as the welcome of Charles II by the nation which had driven him from England. The story of all of them is written alike in these ancient books of Moses. But in our case, the parallel, thank God! has not come so far. We have only reached the moment when we can say that it never shall come. That moment we have reached. It is undoubtedly a moment more critical than any of the last two years. But it is in proportion more enlivening and more glorious. It is the moment in which we are asked whether we will now put through God's great purposes in this affair, or whether we had rather stay in a desert for some forty years and leave the accomplishment of his designs to our children. These have been the rapid stages of this history. The cannon-shot of Sumter gave us the great celebration of Passover with which it began. With that we broke loose from the silken and the iron chains, which, for more than a generation, had held us in vassalage to rulers who did not know Joseph. They did not know us at all; we scarcely knew ourselves. In that passion for peace which makes a part of a high Christian civilization, we had attempted every conciliation, which might keep the peace between us and them. So we did not dream how strong we were. But that great passover-day came, a

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day to be remembered as the Easter-day of our political resurrection. And the nation which they had thought dead was alive again. Its shepherds and its bricklayers, artisans as we called them yesterday, proved to be armed men; and God Almighty revealed himself, now in cloud and now in fire, as our leader into the promised land of a higher social life. It is a life which is to compare with that weary past, of eighty years of concession, compromise, anxiety and fear, as the land flowing with milk and honey compared with this tame Goshen of the flocks of Israel. The pillar of cloud and of fire leads the way for us to an established constitutional system in which every man shall be born free; in which the decision of the majority shall never be contested; in which every man shall have a voice if he have only courage to bear arms; in which an equal chance for promotion shall be given to each child of God, of whatever birth, and in which the inequalities of life shall not spring from law or accident, but be the earthly insignia of the distinctions of capacity with which the Creator has marked His every child. There never has been such a nation till now. But such a nation God now means that there shall be. That is the promised land, flowing with such milk and such honey, to which now in cloud and now in fire He is guiding us. And we have come to the moment, that inevitable moment of the second year, when He asks us whether we choose to enter it now. Here is the critical point for us of the parallel between our history, and all similar epochs in all time. We are not asked whether we would like to go back into the past; into 1853, or 1843, or 1823. God never asks that question. He never gives that privilege. There is no more Egypt for us, even if we wanted it. We are asked, simply, whether we will go now into the promised land, by one vigorous effort, which will need money, labor, hard marches, night watches and bitter tears; or whether we will take instead a desert life, with its scorpions and serpents, its starvations and its mutinies, its attacks from without, and its heartburnings within; a life which shall train our children for the heritage which we are too timid, too softhearted, too soft-handed to take for our own? First — will we choose the promised land and make freely the sacrifices it requires, or will we linger in the desert longer? The issue is not an issue between war and peace. It is an issue between a short war against an enemy, and a perpetual war against

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no man knows how many enemies. No man in his senses supposes, that our receding from this contest of to-day would give us peace for an hour. We might surrender our capítol, we might abandon our fleets, we might give up our arms. But what we should find the next day would not be peace. For thirty states, like these states, there is no peace except under a strong constitution enforced upon their people. Witness ancient Greece, witness the British Heptarchy, witness South America to-day. Our eighty years of peace among ourselves, to which, of course, we look back so fondly, are the exception and not the rule in the affairs of such states. It is an exception induced by the success, the preternatural and Divine success of the Constitution; an exception to be renewed and forever when that constitution is restored with the improvements which this crisis demands. But the general rule, among such states as all history teaches us, is War, pitiless war. It is war where your allies of to-day are your enemies to-morrow. Bavaria and Prussia fight against Austria one week, and the next week Bavaria joins Austria and fights against Prussia. The history of Israel describes it for us precisely; and I did not strain my metaphor, when I spoke of serpents and scorpions within, and Amalekites, and Bashanites and other Bedouins of the desert without, as sucking out the life-blood of states thus tumbled together. The six years which passed here between 1783 and 1789 tell the story as well. Insurrection within, — the state of Massachusetts unable to raise 10,000 hard dollars to suppress an armed riot, which was threatening her courts, and offering to hang her judges! Mutual discord, — every state line the haunt of smugglers destroying the petty revenue! Insult from savages, — the scalping knife unchecked over the whole frontier! Insult from Europe, — a line of English forts running through the wilderness, their garrisons held there in face of treaty! Such are little illustrations of the scorpions and the servants, to whose care you commend yourselves, the moment it is proved that there is no constitution strong enough to hold these states together. Will you live in that desert? this is the question of the Lord; or will you make the sacrifice of the hour, whatever it may be, and march into the promised land? Somebody must march there! That is the only thing certain. Somebody will! The question is whether it shall be you or your children? That is for YOU to say — that is the part of the transaction, which in this mysterious interworking of

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God and man, God leaves in your hands. But, as God lives, that future is to be accomplished by some one. God does not lay the foundations of his cathedrals and span their gigantic arches, and lift their rows of columns, and call from every land the wood and the iron, the silver and the gold, with which he is to crown their beauty and make them monuments to an admiring world, — God does not make all this preparation for His work and then leave it all forgotten and neglect to build the dome. God has created here a country of lakes and rivers, and gulfs and bays, of mountain ranges, parting oceans, and of valleys uniting them, which, when it first rose from the subsiding seas, purpled, wet, and sedgy, the angels saw was one land and could not be made two. God has planted in this land the chosen races of His old world, just in the crisis moments of their history. He sent His Huguenots fresh from persecution. He sent His Englishmen from talk with Eliot and Hampden. God planted here His religion of the purest, and gave its stream the chance to run purer and clearer. God created here a Government on a new idea; an idea for which Europe gave no pattern, and of which to this hour Europe cannot understand the law. God has done all this as His preparation for the future. Thus he has brought together His materials. He has built His foundation arches, and set up His columns, and now he is ready to hang His dome in the skies. It is to be brilliant with silver within, and without it is to blaze with gold. He is going to complete here His idea of a Christian nation, in which His every child shall have right and opportunity to live to His glory, to His highest glory, — the most utter right, and the fullest opportunity. No child of His, born here, is to be forced to be content with the condition to which he is born. Each child is to be promoted to the height of his capacity, and his aspirations. The accident of wealth in one generation is not to influence, by a hair's breadth, the fortunes of the next; nor the accidents of birth-place, nor the accidents of family. An open field, a fair chance, the best culture which art can contrive, and love can compel, are to be open to the backwoodsman of the wilderness in Maine, to the baby of the beggar in crowded Boston, to the first families in Virginia, and to her blackest child. God means to show that there can be a truly catholic church, thus educating universally His every child, and that there can be a truly catholic nation, loved with the love of all its citizens, wise with the wit of all, and strong

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with their strength. He means to show thus the highest civilization, waiting on the triumphs of mutual confidence in government, and of universal love. It is to that promised land, that for two centuries and a half His finger has been pointing. The promise is more distinct than that made to Israel; for here he has spoken constantly to millions, while there he spoke but once or twice, and to Abraham, to Isaac, to Jacob, and to Moses alone. It is as certain that these centuries are flowing into that future, as that in the rapids above Niagara, the waters are flowing to the falls. Still, there, you see a little eddy working back for a minute against the stream, and here, it is possible for us to stay out in the desert a year or two, perhaps twenty years. It may be even possible for us to leave to our children the legacy of marching into His kingdom. Possible! but we are not such cowards or such fools! Almost the first word, I heard spoken in the rebellion, struck the key-note on which I hope we may ring together, till it is done. The man who had most to risk in it, of all men whom I know, said to me "I do not choose to have my son grow up to ask me why we left the settling of this thing to his time." We have something better to do with our forty years of life than these beggarly marches in a desert. We are as good men as our sons will be, and we can gird up our own loins and shoulder our own muskets, and fight to-day's giants, and storm to-day's fortresses, and enter, without loitering, into our own Promised Land.

Pamphlet 20 Henry Whitney Bellows Unconditional Loyalty. New York, 1863 [In sterner terms than Hale, another minister, Henry W. Bellows, the founder and president of the United States Sanitary Commission, in the winter of 1863 exhorted Northerners to be loyal to President Lincoln without question or dispute. He expressed almost a divine-right view of the office of the presidency. It was the vehement remarks of Secretary of State William H. Seward at a dinner party early in 1863 that prompted Bellows to write this sermon. Bellows had noted, "Mr. Seward over and over compared Mr. Lincoln's task to our Saviour s and Mr. Lincoln to the Lord." The pamphlet went through at least two printings in 1863, and thirty thousand copies of it were distributed to the army. Bellows ( 18141882) was for over forty years the pastor of the First Unitarian Church (later the Church of All Souls) in New York City. 1 ]

"And the Government shall be upon his shoulder."—ISAIAH ix. 6. T H I S is a part of the famous passage which sacred literature and the half-inspired music of Handel have rendered so familiar, in its application to the mission of the Messiah. Inseparable as it has now become from Christ's person, its original reference, singular as the language may appear in such a connection, was to an earthly monarch. Isaiah was predicting a king for Israel, who should be competent to free it from all its political and moral perplexities, and he described him in words not then esteemed extravagant or sacrilegious, whatever might be thought of them now. "For unto us a child is born; unto us a Son is given; and the government shall be upon his shoulder; and his name shall be called Wonderful, Counselor, the Mighty God, the everlasting Father, the Prince of Peace. Of the increase of his government and peace there shall be no end: upon the throne of David and upon his kingdom, to order it, and 1

[Maxwell, Lincoln's Fifth Wheel, 197-199, 319-326.]

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to establish it with judgment and with justice from henceforth even forever." It is instructive to bear in mind that this passage is, on Scriptural authority, applicable to human governors and to our Divine Master; that the head of the Church and the head of the State, if not united in the same person, are spoken of in these solemn terms of dignity and responsibleness, as if their duties had a similar significance, and their claims a similar, though not equal, importance. It is not, therefore, without reason that nations have used the most hallowed religious sanctions and symbols in consecrating rulers; that they have ascribed a religious sanctity to a King's office, and employed phrases which, if literally untrue, were yet profoundly suggestive in describing the King as "reigning by divine right," and incapable of doing wrong. We boast ourselves of having got beyond these political superstitions; but if we have got beyond the profound truths they rudely covered, we have passed out of the sphere of safety and lost the anchorage of all civil security. The head of a nation is a sacred person, representing, for the time he holds his office, the most valuable and solemn rights and duties of a people. "The Government" is "upon his shoulder," — and the Government is the mighty pillar that fastens in order and holds to safety the ten thousand varying interests, rights and obligations of a nation. File at the staple which God fastens to his own throne, in the oaths of office which make a man chief ruler of a people, and you loosen thoughtlessly every link in that chain of law and order, which binds society together. There is something in the Chief Magistrate of a people, infinitely more important than his personal qualities, his judgment, his intelligence, his rectitude. It is his office, his representative character, as the National Head. He can truly say with Louis XIV., "The State — it is I. Dishonor me, and you disgrace the nation! Weaken me, and you undermine the country! Speak or think lightly of my oath, my office, my place, and you cheapen yourselves, your institutions, your hopes and prospects." I know the attempted refinements with which a licentious Press, or a thoughtless public, attempt to evade their duty by distinguishing between the man and his office, despising and abusing the one while affecting to honor and respect the other. But practically — in times of revolution or war, especially — there can be no distinction. The office is so much larger than the man, that any abuse directed at him, hits it in spite

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of the marksman. You cannot rudely assail the personal character or judgment of a Chief Magistrate without weakening public respect for the office he holds. This fact makes it of the utmost importance to select rulers whose characters and qualifications do not invite disrespect. But however carelessly nominated, once elected, they ought to be thenceforth free from the tongue of light criticism or coarse abuse, for their office-sake. I sincerely believe that the freeand-easy tongue of our people in discussing the personal character and claims of our Chief Magistrates, while in office, during the last twenty years, has contributed greatly to the demoralization of the nation, has cheapened the standard of qualifications for the Presidency, has lowered and loosened the office itself, and is, at this time, perhaps, the chief danger in our public affairs. If, at this moment we all felt as we ought to feel, that the authority of the President of the United States was a sufficient rallying-cry; that he fully represented both the expressed or constitutional and the reserved rights of the people; that his oath of office was solemnly binding, not only on him, but also on us for whom he took it; that his will, in a time of civil war and universal public danger, was a will having an official right to our reverence and obedience, we should escape the only utterly irremediable danger by which we are threatened. To rally round the President — without question or dispute — is the first and most sacred duty of loyal citizens, when he announces, not that the Constitution merely, but that the National life and existence are in peril. He is the official judge of this — and if we do not accept his testimony, we have nothing to trust to. Remember that his opinions are not personal but official; not matters of individual judgment, or taste, or party; but resultants of the knowledge and counsel and wisdom of his constitutional advisers. That he speaks as the Government, and for the Government, with all the wisdom and capacity the Government has; that this Government is the only Government we have, or can have, while the present tenure of office holds out; and that, however much wiser, its successor may be, that will not help us now. The ship of state is held for two years more solely by this anchor. It may go to wreck and ruin if that anchor parts, even though a better one be forging for the next term of office. To waste this sacred season, when the nation is in a struggle of life and death, and the Government is the physician alone responsible for applying the remedies for its recovery — with no pos-

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sibility of calling in any other until too late — in abusing the competency, or weakening the authority and the means of restoration in the hands of the attending surgeon, is the height of thoughtless folly and the source of infinite danger. Do not mistake me as undertaking the defence of our present Administration on any party or personal grounds. I am only pleading the sacred cause of Government itself. I regard all party predilections and schemes, at a moment like this, with unutterable sorrow and indignation. The country should have but one thought — the protection of the National life, and the upholding of the constituted authorities, who alone can legitimately wield the power and resources of the nation, to effect our salvation. It is not the policy, but the STRENGTH of the Government that is to save us; nor is it now this General or that, this measure or that, this Cabinet officer or that — who either blocks our way or has power to open it. Our great difficulty is the reluctance of the people to trust the Government with all the moral and political powers it requires, in order to wield the whole force of the nation in defence of its life. I do not wonder at this hesitation; but it is nearly fatal. The people have been so long accustomed to look after their private rights, their personal liberties, their local interests, and have, in a time of peace, acquainted themselves so little with the advantages derived from the National Government — though it has unconsciously all the while been showering blessings on their regardless heads — that they continue in a time of civil war — when a desperate enemy is stabbing at the heart of the nation, the capital, and clutching at the nation's throat, the Mississippi river, and while all the great empires of the world are in ill-concealed sympathy with this domestic foe — discussing questions of sectional and local importance — watching tariffs and bank charters — fighting over petty offices, scowling on necessary measures for incarcerating and arresting traitors, denying a proper legality to the suspension of habeas corpus — and threatening to resist any law of conscription, necessary to secure the military force required to make good the place of our retiring levies. At this present hour the President of the United States could not leave the District of Columbia without being liable to arrest and imprisonment in a common jail. And for what? for shutting up in Lafayette, or Fort Henry, men who, before they went there, were spies of the enemy, and more dangerous each of them than a whole regiment in the

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field, and who, the moment any clemency visits them, renew their old business and sow dissension and despair at home, and create hope and courage in Richmond! And all this is simply because the honest people of the United States do not yet feel that all the State Governments and all the city and town Governments owe whatever is protecting and beneficent in them, to the overshadowing power and greatness of the Federal or National Government; that terror and suffering does not yet reach them, only because the Federal Government stands bleeding, but strong and resolute, between them and harm; that it is now fighting their battles, protecting their honor and prosperity; doing, suffering, and daring all things for their sake! The people seem to think the President's, or the Government's strength may be impaired and they continue strong; that their local, State, or sectional prosperity, and law and order, here and anywhere, have no vital and necessary connection with the vigor and honor and power of the Federal authority. Alas! what a terrible, and possibly what a fatal mistake! Do you suppose that any body disloyal to the General Government is a friend to his own State? Are you not seeing what that view of local rights, which makes the States jealous enemies of the National Government has brought upon the Southern members of this Union? Have they not all, from being only angry watch-dogs and worriers of the General Government, become open traitors to it? And how far from similar traitors are those who stand now, criticising, sneering at and resisting, as far as they dare, every act of the Federal authorities which looks to vigorous defence of National sovereignty — every measure that puts a thinly-disguised traitor or secessionist under arrest, or seeks to disembarrass the hands of the Government, full of immense responsibilities and cares, from the carping interference of local authorities? These — not the skill and prowess of the enemy, not foreign intervention, not the want of good Generals or good statesmen — are our real perils, — the divisions, the local interference, the partisan jealousies which prevent our whole people from uniting as one man in upholding the Government. The Government has men; has, or can have, money; has clear and recognized duties; has, I believe, confidence in its own policy, and power and ability to conquer the enemy; has none of the despondency and despair about military or naval proceedings — none of the internal strifes and divisions which afflict the people. What then does it want? Nothing but the full

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consent and approbation of the people — nothing but the united loyalty and confidence of the people, trusting it with all the necessary discretion to carry into execution what it judges to be essential to the very preservation of the National life. These discretionary powers Congress is slow to endorse, and not blamably, because Congress studies and must study the people, their moods, wishes and prejudices, and these moods I do not so much condemn as lament. Why, after twenty months, is no act legalizing the suspension of habeas corpus yet passed? I know it is not essential in a legal view, but how necessary for a moral effect. Why have the elections everywhere indicated a desire to invigorate State Governments and private securities and personal rights at such an untimely hour? Why have thoughtless demagogues or selfish politicians seized this moment, when Federal and National interests should rule supreme, to play upon the people's honest prejudices, by alarming them at the alleged inroads on their local and personal liberties? As if the man that broke down his neighbor's fence to procure a rail to fling to his neighbor's own child struggling in the water, was to be called to account for trespass while the boy was drowning! Yet this is the precise spirit of local and sectional politicians, seeking to make their political fortunes out of the National distress, as many wretched traders are doing out of the National treasury. It is not one party, or another that is doing this, but many in all. Thousands who helped to put the President in office, are among these local and un-national destroyers of the country's life — assailing the Government they made, because circumstances have not allowed it to carry out a programme made for peace, and not for civil war. I repeat — for it is necessary — that I am very well aware of the specious grounds on which those who choose to assail the Government, at a time like this, rest their disloyal behavior. They make the very plea the rebels made when they attempted to burn down the national temple — a violated Constitution. They are great sticklers for the letter of the Constitution. They remind one of the enemies of our Saviour, who were always flinging in his blessed face the authority of the Mosaic law. He could save no life on the Sabbathday, because the Mosaic Constitution forbade it! He could pluck no corn for his starving disciples, because the Mosaic Constitution made no provision for that! He could protect and shelter no penitent sinner, because the Mosaic Constitution condemned her to be stoned

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to death! He could break no yoke of moral and spiritual ignorance any where, because the Mosaic Constitution was thus endangered! In short, the Pharisees and Scribes and learned and acute doctors of the law, blocked the just starting chariot-wheels of the Gospel at every foot of its progress, with some quotation or warning out of the Jewish Constitution! And what would the Saviour of the world have been able to accomplish, if he had not firmly and boldly taken the ground, "The letter killeth, the spirit maketh alive!" If the Constitution of this country were what the enemies of the Government make it out — the rebels' best argument, the slave's worst enemy; the soldier's greatest hindrance, the citizen's darkest foe, — if semirebels at home could justly find their chief arguments and protection in it, the sooner it were abandoned the better. But it is no such thing! The friends, the true friends of the Constitution, are those who love its spirit too well to allow a few specks in its body to become the ruin of its soul. They treat it as a parent treats his child, who, to save his life, suffers the surgeon to cut off a gangrenous finger or toe. If the Constitution of the United States were designed or fitted to obstruct the progress of public enlightenment, national ethics, and Christian civilization, it would become the curse of the nation. There is not a national charter in all history that has ever been permitted to do this. And is the Constitution of a free, democratic nation to be more wooden and incapable of enlightened moral interpretation than the law of the British Crown, or the French or Prussian Empires? It is absurd on the face of it. Because some of our fathers believed in cruel punishments, in the selling of even white apprentices into Slavery, in national lotteries, and in other, now universally condemned immoralities, are we tied to their errors and blindness, by reverence for their services? Is the letter of the law to over-ride its spirit, and that, too, in dealing with rebels and traitors who are openly seeking to destroy our national existence? I yield to no man in reverence for law and order; nay, in respect even for the law's delays, and all the various checks and balances by which constitutional government is secured. I believe in the immense importance of the proper distribution and segregation of the legislative, judicial, administrative and executive functions of this Government. No man can tell me any thing I do not now feel of the value of method, order, precedent, rule, in political life! But there are times when all these things must be subordinated to the

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primal question of self-preservation. Has a nation less than the rights of an individual? May it not, must it not defend its own existence at all hazards? Can any laws, or charter, or constitution mean to rob it of the rights of self-preservation? Is the Constitution really violated when, under such a necessity, the powers of the President are stretched beyond the ordinary reach of his office? I say the Constitution is preserved, as a life is saved, by despising ordinary precautions and rules. The Spanish law forbids a subject from laying hands, on any pretence, on an Infanta of Spain, under penalty of instant death. Did, then, the peasant who rushed into the palace and extinguished the flames that enveloped a royal princess, deserve to die? Did he break the law? Yes, in the letter. No, in the spirit. And would he not have deserved to die a thousand deaths if he had regarded the letter of the law, when his liege lady was in instant peril of her life? It is such fictitious violations of the Constitution as this, that Northern sympathizers with the rebellion are now seeking to make grounds of accusation against the true friends of the Nation, and the protectors of its life — such violations as the incarceration of spies, of correspondents with the rebel government; inciters of revolt in border cities; editors of rebel newspapers under some thin disguise; insolent slave-drivers on the now free soil of the District of Columbia; of men seeking to sow divisions and disloyalty in the army itself; to prevent the raising of fresh levies; to weaken and bring into contempt the lawful power of the country. When it became necessary to reinforce Fort Taylor, a high military authority is said to have declared, that unless the act of habeas corpus were suspended in the section of the State where the fort now lies, every National soldier could be arrested by the rebels, under civil process, and the power of the National Government be put at absolute defiance. But it was by some thought unconstitutional to suspend this act. Then it must be unconstitutional to uphold the Constitution, to oppose secession, or to put down rebellion. Let it be deemed unconstitutional, then, by those who hate Union and liberty; it was none the less necessary — absolutely and unconditionally necessary — and the President, doubtless with some such view, signed the order for it with a full sense of his constitutional responsibility. But he is not yet justified in that act, or in any similar acts, by the opposition. Would God, would America, would the Future, should we justify him, if, higgling on the point, he had sacrificed the

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national spirit, honor, life and hopes to the weak and empty scruples of others about the letter of the law? He would indeed have been a coward and a traitor to his country, if he had shrunk from that holy duty, of setting the law of national self-preservation above every other consideration, at that critical moment. Remember that the value of a living ruler is that he is alive, and can accommodate action to circumstances. We might as well have presiding over this nation a Maelzel automaton, or Babbage's Calculator, wound up by the Constitution to strike certain foregone conclusions, as to have a living representative of the people — a man whose heart, conscience and will have their legitimate place in interpreting and applying the written law to the nation's exigencies — if these feeble notions of the absolute preëminence in a civil war of every doubt or silence or uncertainty in a Constitution made for peace, are to prevail over the necessities of immediate and decisive action. But, after all, no plea is so specious and so dangerous among all those under which disloyalty seeks to conceal its fangs, as that which attempts to distinguish between the Administration and the Government. It is perfectly respectful to the Government, for which it is ready to give life and treasure; but the Administration is imbecile, is false, is destroying the liberties of the nation; is without wisdom, or honesty, or success! It is to be assailed, despised, resisted, and in every way obstructed, and this is all in the way of sound citizenship and in the exercise of inalienable rights — in the character of true and loyal Americans! It is very like the plea of men who respect the marital relation, but have no allegiance to the wife of their bosom; or of those who advocate honesty as a general principle, but make an exception in dealing with their own creditors! Practically, everybody knows that the President is, for two years or more to come, the sole lawful head of this Nation, and his Cabinet, men of his own choice, the arbiters of our national fate. Practically, what these men do or fail to do, through our furtherance or hindrance, settles the fate of this people for a generation, perhaps for ages to come. Practically, their support, encouragement and invigoration, is the only possible method of putting forth our National strength and ability. Practically, to bring them into suspicion, contempt and distrust, is the greatest injury and peril our cause can suffer! Practically, the rebel Congress can have no allies more worthy of encouragement and pecuniary support, than the men here who attempt to

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weaken the confidence of the nation in their sole executive representatives; to bring the high officers of the Government into disrespect and contempt; to make foreign Powers think us led by pigmies, governed by imbeciles, counseled by knaves, divided among ourselves, and on the verge of despair; our successes cheap, our prospects cloudy, our resources belittled, our zeal and determination dimmed and dwindled, our national will broken; our Government despised, sneered at and distrusted by its own children. Nor, alas! is this wretched policy wholly confined to traitors. Loyal and honest men, in the pride of opinion, unwittingly perform the traitor's work. Faithless, impatient, superficial, mere partisans, or mere pettifoggers, or mere sectionalists, or mere mediocrities, they assail the Administration because the Administration does not take their advice, see things their way, jump to their conclusions, adopt their "isms," swallow their panacea, or force it down the throat of the country. I was lately very much struck by the remark of an honest New England radical Abolitionist, who stated to me with an evident expectation that I should receive it as a proof of the President's total lack of intelligence, that a Committee of the leading representatives of his sect had just waited on the President, and had three hours of conversation with him; and that they had no evidence that they had produced the least effect on his mind! As they were all very excellent and eloquent gentlemen, of their school, I confess I felt a new increase of respect for the President's firmness and many-sided wisdom! I have too often had my own hasty views and wishes opposed and thwarted by the Administration and high officers, not to have learned that it does not prove them to be wrong that they do not uniformly agree with even their honest and earnest advisers! And, taking advantage of whatever name for frankness and simplicity, in speaking the unqualified convictions of my own mind, I may here enjoy, I solemnly declare in the interests of the nation and cause, that, with more than ordinary opportunities of seeing and practically co-working with the Government, every month of study of our Administration has given me a greater estimate of its integrity, ability and fitness to meet the crisis; a higher respect for the President; a deeper persuasion that faith and confidence in him would be repaid by full success in our cause. I believe that the very common opinion that intestine quarrels rend the Cabinet; that no harmony of views or purposes prevails; that the high officers

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distrust, and are jealous of each other; that they are chiefly animated by political ambition, or are sacrificing the country to their own selfseeking objects, is a most entire and a most pernicious mistake; that the differences among them are honest and healthy differences, not touching vital points, and that their perplexities spring not from their own divisions, but from ours; their lack of sharpness of policy to the blunted, because widely-extended, interests and wishes of a greatly scattered people. I believe no set of men ever lived, that were more idly, hastily and ignorantly judged and abused, than our existing Administration; that they need only to be closely and personally known to be wholly respected; and that any general disaffection or distrust is caused wholly by the poisonous malaria sent up from the marshes of public prejudice, from the foul-mouthed calumnies of a portion of the public press, or the idle gossip of thoughtless story-tellers. When I think of the extent to which the falsest calumnies can go, without one particle of truth to travel on — things I personally know to be not only untrue, but the precise reverse of truth — I am in despair of correcting public prejudice. To take an illustration, below that of a Cabinet officer, whom I will not criticise — no man in the whole country, for instance, has suffered greater wrongs, from the causes alleged, than General McDowell — a wise and good man, a patriot and brave soldier, simply unfortunate, but despised and hated as a traitor and a drunkard by millions, many of whom are not worthy to loose his shoelatchet. This man, who has been styled a drunkard, on the most incontestible evidence, by men and women of the highest character, in my presence, I positively know never so much as touches a drop of intoxicating drink — is a total abstinent, and always has been so! And I believe there are generals and Cabinet officers now under suspicion of drunkenness and opium-eating, and fraud and falsehood — on testimony that would hang a man in many courts — who are as innocent of each and every one of these charges as the purest man in this assembly. It is a reckless way of discussing the personal character of public men, in the press and in popular assemblies, that has led to this atrocious depreciation of men, whose characters and reputation ought at this time to be under the shield of every patriotic citizen's allegiance and gratitude. I am persuaded that it is a sacred duty to urge this point everywhere; and I rejoice, that in the best faith in the

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world, I am able to begin a reform in this direction, at least in my own small sphere. I have from the beginning thought it my duty everywhere to support the Government and to support the Administration as the practical representative of the Government. I think it your duty, your religious duty — the duty of every loyal citizen, and that no duty is so urgent and imperative at this moment, as to restore a well-deserved confidence to our President and his advisers. If they did not merit it in their personal character and talents, I should still claim that they deserved it in their official position! But I verily believe they merit it in their own persons, and only the more where they do not represent the partisan wishes of those of us who elected them. They came in a party-administration. Civil war has converted them into National patriots. The lightning of God has touched them, and rendered them sacred. Yes! Can we measure their trials, anxieties and difficulties — the necessary sorrows and cares of their vast and complicated responsibility — and be willing to add to their burdens the needless grief of misinterpretation, slander, gossipping criticism and personal abuse? A more ungrateful public was never known than that which could willingly assail the personal character of those slaves and conscripts of our public necessities — the present Government of the country! Let us reform our ways altogether; begin a new style of speech about our public men in office. Let us support, encourage, cheer and trust the Government. It is all they need to carry us triumphantly through. Thus, brethren, do I commend to you the cause of unconditional loyalty. I have pleaded it as a son pleading for a parent's life! Would to God that none needed this earnest pleading more than you do. I know your hearts, and how warmly and cordially as a congregation you approve and practice upon these principles. I make you, then, the missionaries of them, whereever you go, and with whomsoever you are conversant. Let our women and children become the propagandists of unconditional loyalty. The country needs not only the fealty of her sons, but of her daughters also. Sing the songs of patriotic devotion at your hearth-stones. Let your country have your earliest and your latest prayers. Frown on every syllable of distrust, of wavering, of disrespect, that pollutes the air you breathe. Require of all your friends to be first the friends of the nation! Have nobody's love that does not love the country more! Make a religion of patriotism. Let not the devotion of rebel fathers and

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mothers, of rebel sons and daughters, shame your lukewarmness, your selfishness, your coward fears. If error and treason can find such willing, uncomplaining martyrs and propagandists, what ought liberty, union, and lawful government to have? It is this holy spirit of devotion on the part of the whole people, this jealous patriotism, this unconditional loyalty that can alone save the land. Let it not be your fault if from this hour it does not prevail in every home, in every heart, in every place of business, in every church throughout this nation — struggling, as it is, for the most sacred and valuable rights of our common humanity, a lawful Government, and the right of Christianity and civilization to triumph over barbarism and Slavery.

Pamphlet 21 Samuel F. Β. Morse et al. The Constitution. Addresses of Prof. Morse, Mr. Geo. Ticknor Curtis, and Mr. S. J. Tilden, at the Organization. (Papers from the Society for the Diffusion of Political Knowledge, No. 1 . ) New York, 1863 [In the first three months of 1863, several organizations came into existence to publish and promulgate their views through pamphlets. The Society for the Diffusion of Political Knowledge issued an account of its organization meeting as its first pamphlet. It contained the addresses of its founder and prime mover, Samuel F. B. Morse, and the renowned lawyer and writer on the Constitution, George Ticknor Curtis. It also contained brief remarks and a long subsequent letter to the press by Samuel J. Tilden, who was to be the Democratic candidate for President in 1876. All three of these men were critical of the administration for its limitations upon their constitutional freedoms; as Democrats, they were trying to establish their position as a loyal opposition. From the beginning of the war Morse ( 1791-1872 ), best known as a portrait painter and the wealthy inventor of the telegraph, was emphatic in his opposition to the Lincoln administration. Curtis (1812-1894), the brother of Justice Benjamin R. Curtis, had been counsel for the plaintiff in the Dred Scott case. Years later he wrote Constitutional History of the United States, ( 188g, 1896). Tilden (1814-1886) had grown up a supporter of Van Buren, and had become a leader of the free-soil "Barnburner" Democrats. He also had amassed a huge fortune through railroad and mining interests. He had favored massive crushing of the rebellion but opposed the manner in which the Civil War was conducted.]

ON the 6th of February a number of gentlemen met at Delmonico's, to consult on the best means of diffusing correct political knowledge. On the 13th of February the same gentlemen, with others, re-

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assembled at the same place, to complete the organization of The Society for the Diffusion of Political Knowledge — the comprehensive objects of which are set forth in the Constitution adopted. Prof. S. F. B. Morse, who had been chosen President of the Society at a former meeting, took the chair. Upon calling the meeting to order, he spoke briefly as follows: SPEECH OF PROFESSOR

MORSE.

Gentlemen: I can not take the chair this evening, to which you have been pleased in your kindness to call me, without a few words of definition of my position in relation to the movement which w e have inaugurated. Nothing in these days of our country's trial has so saddened the hearts of patriots, and caused such universal misgiving touching the stability and even the existence of our cherished Government, as the constantly recurring evidences of a deep and wide-spread demoralization, pervading the public mind, to which the rostrum, the press, and, I am sorry to add, the pulpit, in a lamentable degree, lend their powerful influence to strengthen and perpetuate. Fanaticism rules the hour. The fanatic is on the throne. I use the term fanatic in no loose sense. Fanaticism is a frenzy, a madness. It is not, as it pretends to be, a zeal springing from enlightened reason, founded on the rock of God's word, but a spirit of the pit, clothing itself in our day in the garb of an angel of light, the better to deceive the minds of the unthinking and the simple. Fanaticism has been well defined, "enthusiasm inflamed by hatred," and the truth of the portrait of the foul fiend is exhibited before us every day. History, ever repeating itself, as time completes its cycles, has not yet closed its sad volume of disastrous hallucinations. It is preparing its pages and reddening its pen to record the story of the foulest tragedy of earth — the most frightful that is yet to deform the annals of the past. Can patriotic men, persuaded of such an issue, be silent, be idle? There may be those who fold their arms and shut their eyes, and lull their apprehensions with baseless dreams of a future "visionary, impossible Union," a Union begotten of force and fear, not a Union begotten of peace and love; a Union to be created when the South shall be wiped out of existence, and its soil prepared for Northern

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colonization; when the Southern earth shall be "without form and void," and has become the desolate habitation for the advent of the new Northern man. But there are others who have awakened to the realities of the times. They can not but read the portentous signs of a coming destruction. If the poisonous seeds sown for long years by a proud, God-defying infidelity in France, have shown their natural fruits in the bloody dramas of the Reign of Terror, how can we believe that the same seeds, exotic though we hope them to be, yet now flowering in an artificial atmosphere and in a hot-bed made congenial to their rank growth by American infidelity in church and state — how can we believe, I say, that we shall pluck grapes from these thorns, or figs from these thistles? But what can we do to root out these noxious weeds? We must put machinery in motion adapted to that end. The heresies of the Church must be grappled with by the untainted theologians of the land, for there are thousands of these who have not bowed the knee to the abolition Baal. The heresies of the state can be and must be reached in a constitutional way by the intellects of the country. If I have read the provisions of the Constitution aright, this meeting in its object and its mode of reaching that object, is wholly and completely constitutional. We have, however, been assailed by those whose record and antecedents should not make either the act or the manner of the act surprising to us. We are instructed, however, that charity "rejoiceth not in iniquity" and the injunction in this case is salutary, for the temptation is certainly strong to rejoice, rather than to feel indignation at the gross indecency our opponents have thought proper to perpetrate. It is not, indeed, the iniquity of which these libelers have been guilty, and which has drawn down upon them one universal cry of shame from all decent men, that tempts our rejoicing; it is their having given to the public such an unmistakable manifestation of that reckless, unprincipled spirit which is so rife in the ranks of fanaticism, and which it is our own purpose, if possible, to exorcise. True, it is a matter of surprise that the simple, unostentatious, unannounced assemblage of a few gentlemen in a parlor to concert a plan for diffusing knowledge should have been the potent spear of Ithuriel, at once to reveal in proper shape and character, the presence in the community of the demon of fanaticism.

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UNION P A M P H L E T S Him thus intent, Ithuriel with his spear Touched lightly; for no falsehood can endure Touch of celestial temper, but returns Of force to its own likeness. Up he starts, Abashed, the devil stood.

Now we are told from the best authority that the devil is "the father of lies." If falsehoods, therefore, are evidence of his presence or his agency, surely the spawning of forty-three, at one incubation, entitles the prolific reporter to preëminent distinction in the ranks of the prince of evils. We have been charged with disloyalty. Men use words very loosely in these times of excitement. What is disloyalty? It is unfaithfulness to the sovereign. Where is our sovereign? Will it be said that it resides in the powers that be, and these we are commanded not to resist? If there are any associated with us who propose to resist the powers that be, I have not been acquainted with them. There is one of the powers that be, and that too the very chief of these powers, which seems to be strangely left out of view in our political discussions in these eventful times. There are some, I understand, who believe the sovereign power to exist in the President; others that it rests in the national, executive, legislative, and judicial bodies collectively, and others, in the States; and many, if not most, have very indefinite and confused ideas of these powers that be. Each of these is a power, and there are many others, each of which, in the legitimate exercise in its proper order of its own delegated duties, is not to be resisted without blame. But it seems to be forgotten that there is a power in the State sovereign to each and all these powers, one to which all of them are subject. Can we overlook the great truth that the very foundation of our governmental system is based on the sovereignty of the people? Do I mistake or exaggerate when I say that presidents, and governors, and all the departments, whether of State or federal machinery, are all subordinate to the people? Justice Story, in his work on the Constitution, in his concluding remarks, says: "It (the Constitution) is the language of the people. The people have established it, and spoken their will; and their will, thus promulgated, is to be obeyed as the supreme law of the land. Every citizen has a right to contest the validity of its construction before the proper tribunals, and bring it

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to the test of the Constitution. And if the case is not capable of judicial redress, still the people may, through the acknowledged means of new elections, etc., check any usurpation of authority, and thus relieve themselves from any grievances of a political nature." The order, then, of classification of these powers is, first the people, then the State Government, and then the Federal Government. The people in their sovereign capacity and right have absolute power over and above all other powers. The Declaration of Independence, in its mixture of truths, qualified truths, and fallacious maxims, has (so far as our Government is concerned) announced one truth which they who make that document their political bible will not gainsay. "It is the right of the people to alter or abolish (any form of government) and to institute new government, laying its foundation on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness." Can any political power be conceived more absolute than this? It is supreme over all the other powers. To make the case more plain, if it is necessary, reverse the case, and suppose it to read: "It is the right of the President, or the Federal Government, or any of the States to alter or abolish the Government, etc." There is no such power but in the people. And now to whom are we appealing in forming this Society? To the supreme power. We have nothing to do with any of the other powers, but to use them, so far as we may in their several subordinate stations, as means of reaching the sovereign; and we intend reaching his throne with our petition only through the well-known constitutional channels of access. We mean to use our rights of free discussion, and look for the answer to our appeal of the ballot-box. Is this treason? Is this conspiracy? Is this resisting the powers that be? Is it disloyalty to appeal to the sovereign, or to exercise that portion of the sovereign power which of right belongs to us as part of the people? Hon. George T. Curtis, in reporting a draft of a constitution from the committee to which the subject had been referred, spoke as follows: SPEECH OF ΗΟΓί. GEO. T. CURTIS.

Mr. President and Gentlemen: Since we last met in this place we have been subjected to a gross, wanton, and unprovoked insult.

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Nevertheless, sir, I presume that we shall go on in the discharge of our rights and duties as free citizens of this free country, and, according to the advice which Hamlet gave to the courtier, that we shall use our assailants not according to their deserts, but according to our own honor and dignity. The committee, sir, who were instructed to prepare and report a constitution for the permanent organization of this Society, have directed me to present the instrument which I hold in my hand. Before reading it, however, I desire to be indulged in a few remarks which it is due to the character of those who were here at the first preliminary meeting, and who are again now here, I should make with all calmness, but at the same time with firmness and frankness. When respectable men, who are to be presumed to be as pure and patriotic as their neighbors, are assailed as traitors and conspirators, it concerns the public good that their objects and purposes should immediately be made known, in order that no excuses may be left for the indulgence of a foolish credulity, stimulated by falsehood and malignity, and therefore, sir, we have requested the attendance here of a person who exercises the honorable employment of a reporter for the public press in an honorable and upright manner, and respects his own calling, and who will doubtless give a faithful and true account of all that may transpire here that it concerns the public to know. Mr. President, the immediate causes for the formation of this Association are the prevalence of doctrines subversive of the fundamental principles of civil liberty and tending directly to the overthrow of the Constitution of the United States, and a wide-spread popular ignorance of the true nature and character of the institutions under which we live. Under these circumstances, sir, what are good men to do who love their country and value its institutions, and who are not willing that these doctrines should go on to produce their bad work in the entire disorganization of society? For, sir, but one of two things can occur, either these doctrines must be met by discussion and refutation and by the peaceful operations of the ballotbox, or they must go on until they have completed their mischief, and property, government, social order, and all things else sink into confusion, to be followed by such peace and security as an absolute despotism can bring. Sir, I do not propose on this occasion to enter into any argument respecting any of the questions which have come into such alarming significance within the last eighteen or twenty-

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four months, or into any extended discussion of the theories which prevail respecting the various powers of the different departments of the government. But I do propose very briefly to indicate the nature of some of these questions and the character and tendencies of some of those theories, in order that those who may be induced to reflect on the condition of our country may see whither we are drifting. You all know that there are annexed to the Constitution of the United States certain amendments, which embody, in the form of fundamental laws, superior and paramount to all executive or legislative or judicial power, the fundamental, inalienable, and indestructible rights of the citizen; and you also know that the generation of men who made that Constitution and transmitted it to us were not willing to have it go into operation without annexing to it those limitations on the powers of the government. Now, sir, it is not necessary to repeat, to recite what these limitations are. But you are aware that it is now claimed that in time of war, and because the country is at war, it is legitimately in the power of the President to disregard all those restrictions and limitations, and practically to set aside and annul all these rights of the citizen. That I do not exaggerate or in any degree mistake the nature and extent of this claim, permit me to read a single sentence from a pamphlet, written, published, and largely circulated in the year 1862, by an American lawyer: "No citizen, whether loyal or rebel, is deprived of any right guaranteed to him in the Constitution by reason of his subjection to martial law, because martial law when in force is constitutional law." Now, sir, you are aware that the whole of this position, so far as it could affect the American people, is founded on the assumption that there is wrapped up in that phrase which designates the military capacity of the President as that of commander-in-chief of the army and navy, power to declare martial law by proclamation all over the country, when the country is in a state of war and the President has armies in the field. Having seen the form in which this doctrine is promulgated now in our American age and in this country, let me ask you to go back for an instant to the year 1628 in England, and see how the same doctrine was then stated by an English lawyer upholding the side of arbitrary power upon the same description of reasoning, and the coincidence is astonishing. At a conference between the two houses of Parliament concerning the

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liberty of the subject, holden April 17, 1628, Mr. Sergeant Ashley, a noted lawyer of that day, held the following language in the presence of the two houses: "The law martial, likewise, though not to be exercised in time of peace, when recourse can be had to the king's courts, yet in time of invasion, or other times of hostility, when the royal army is in the field, and offenses are committed which require speedy resolution and can not expect the solemnities of legal trials, then such imprisonment, execution, or other justice done by the law martial is warrantable, for it is then the law of the land, and is jus gentium." I will make no comments, but will simply call to your recollection the fact that the phrase or the thing "martial law" is utterly unknown to the Constitution of the United States; that even Congress — the whole legislative power, the Senate, and the House of Representatives — and the President, acting together, can not make any special mode of arrest or trial applicable to any but persons in the army and the navy, and that as to all other men the Constitution absolutely forbids arrests without due process of law or trials otherwise than by a jury of the vicinage. And yet, sir, we are told that the President of the United States may declare martial law by proclamation, and may subject every citizen to seizure and incarceration by provost-marshal. Then, sir, there is that other kindred heresy by which the same kind of result is arrived at, but by a somewhat different process. We have all heard a great deal about the doctrine of self-defense on the part of the government. The right of self-defense — as if Government were a natural person, having all the inherent rights of selfdefense which a natural person has; and mixed up with this strangely in men's minds is the idea that the members of the executive government may transcend the law of the land in the exercise of this great inherent right of the government to defend itself, and having transcended the law of the land, and committed an injury upon some citizens, may go to Congress and ask for an indemnity, and so the whole wrong is cured by such indemnity by act of Congress. It is the most singular thing in this world that the American people have not hitherto seen that this idea of resorting to the practice of the British Constitution, and borrowing from it what is called the bill of indemnity, to protect the officers of the government from the reclamations and complaints of the citizen, urged in courts of justice,

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is utterly inapplicable to our Constitution and our institutions, and that the attempt must repeal it — must pull down the Constitution and destroy those institutions. What is the reason, sir, that in England the executive government can in moments of great emergency and in seasons of great public peril, overstep for the moment the positive law of the land, and then, consistently with the principles of that government, receive what is called an indemnity from Parliament — that is, protection and pardon for the act, and thus the remedy of the citizen be cut off? It is solely and simply because it has always been a received principle of that government, that Parliament — the three branches of the Legislature acting together — make and unmake the constitution at their pleasure, and the fundamental reason is that they have no written constitution, but their constitution is an unwritten one. So that when any officer of the government has overstepped the law of the land from right public motives, and in a season of great emergency and peril, it is according to practice and according to the legitimate theory of their constitution that an indemnity may be granted, for whatever Parliament solemnly enacts in the form of law is constitution. They may set aside the constitution in any particular by act of Parliament — so much so that they may change the descent of the crown, or make the heir apparent a beggar at any moment. But no such thing as that can be done in this country, for the simple reason that we have a written Constitution, which is paramount to all legislative authority and all legislative power — over which Congress has no more control, and in respect to which, where it guarantees rights to the citizen, Congress can no more act to take away the remedy than it can undertake to legislate respecting the condition of things in the provinces of the British empire. If it were not so, it would be in the power of Congress at any time to set aside first one provision of the Constitution and then another, and so to go on until they had frittered away or overturned the whole of it. Then there is that great mischievous heresy with respect to the power of the President to annul the writ of habeas corpus. It will always remain a serious discredit to the administration of Mr. Lincoln, that having to establish the first precedent on that subject since the establishment of the Constitution, they should have made that precedent in the wrong way, and thus have introduced a train of mischiefs in this country which are incalculable in extent, and of

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which no man can see the result. Why, sir, look at it for a moment. When these questions first rose in the path of the administration, nothing could have been more simple for them to do, nothing more necessary than to go to Congress, not only to ask for proper authority to suspend the writ, but to define that suspension and regulate it, to determine just how far the writ should run, just when and where the judge should stay his hand in prosecuting an inquiry, and on what certificate, and on what facts he should close the inquiry. And, sir, it is within my personal knowledge that some of the members of the administration at the extra session of Congress in 1861 — at least the highest law-officer of the Government was implored to take that course, and had they taken it there is no amount of assistance from the best legal minds in the country which they could not have had at the asking, to have framed the proper law for that subject. I appeal to you, Mr. Tilden — I believe you are the only one of my brethren I see in the room — I appeal to you to confirm my statement when I say that no judge in the land can now receive judicial information on which he can act, that the writ of habeas corpus is suspended. What is the present state of things? The writ issues — some body comes into court, some military officer, and instead of making a return and bringing up the petitioner, undertakes to inform the judge that the President says that the writ is suspended. What does suspension mean under those circumstances? What are its limitations? What is its operation? Suppose the petitioner asks to be brought up, saying: "The Constitution guarantees to me, if I am accused of crime, a speedy and impartial trial in the State and district wherein the crime is said to have been committed. I have been incarcerated for eighteen months in a loathsome dungeon, and refused all redress." Is the writ suspended to close that inquiry? And yet that is the necessary consequence of this doctrine of executive suspension of the writ. Those are the reasons, sir, why it is one of the most lamentable, one of the greatest calamities that has ever befallen this country that Mr. Lincoln's administration should have set this precedent in the wrong direction. Mr. Samuel Tilden said: My friend will excuse me for a moment. I will state that happening to be in Washington just about the period when this question rose, and being spoken with upon the subject by a member of the administration, I advised him that he would have no protection of law in acting upon the assumption that the

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writ of habeas corpus was or could be suspended in this mode, that he had better have just as little to do with it as possible, because when the momentary excitement was over, even if acts of this character were necessary, if arrests and detentions were necessary, he would find it wholly impracticable for him to set up any ground of oifense against the several forms of redress that might be sought on the part of the person imprisoned. The suspension if validly made could operate, not to annul the other clauses of the Constitution to which Mr. Curtis has referred, or to suspend them, but simply to enable persons to be arrested and detained — that it did not touch the mode of trial and of punishment. Now, in my own judgment, it was absolutely necessary, as well for the safety of the citizen as for the convenience and fair action of the government, that the whole thing should have been defined by legislative action. It was a mistake of the most extraordinary character, resulting, I presume, from the entire want of acquaintance on the part of the law officer of the government with the subject of constitutional law, and the fact that the acts had been already committed, and were to be justified when his opinion was asked, and not any future action to be determined. Mr. Curtis continued: I had no doubt as to what view must be taken by the gentleman, although I never exchanged a word with him on the subject in my life. I have said that this is a very unfortunate occurrence. It has interrupted the chain of that steady, safe, constitutional, and only regular and legitimate line of precedents that had come down to us from our British ancestors for many generations. In five reigns in England, if I remember rightly, the writ of habeas corpus has been suspended seven times, always by act of Parliament, always by a statute regulating it, defining it, and determining with the utmost precision what is the duty of the judge under such circumstances. Then there is that other great heresy which may be called the war measure heresy, as if the Constitution were a thing made of Indiarubber, to be stretched in one direction in time of peace and in another direction in time of war, or as if we had one Constitution for a state of peace and another Constitution for a state of war. And so we constantly hear it said, no matter what your complaints are about constitutional provisions — no matter what you may question, or what you may suggest or say, "Oh! that is of no consequence — this is a war measure," and thus it is justified. So one might go on

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through half of the entire night, respecting these extraordinary ideas which have crept into the minds of educated men, and which they have instilled into the popular mind. There is one especially extraordinary, and, in my judgment, equally dangerous idea — and that is, that the rights of the States will take care of themselves, when the war is over, and things will all fall back to their normal condition. Let us look at that for a moment. Here is the militia — the relations to which of the general government and of the States are defined with the utmost precision by the Constitution — and where there was any room for doubt as to the respective practical duties and rights of either government, all that has been, since the war of 1812, settled by judicial decision of the Supreme Court. Suppose, as is perhaps not unlikely, that the bill shall pass Congress, putting the whole control — constitutional provision or no constitutional provision — of the militia of the several States into the hands of the General Government, or, as I have heard it expressed, putting the sword effectually into the hands of the President. You go on in that state of thought throughout this war, you go on to a termination of it, whatever that termination may be. Where is the militia then? What precedent has then been established, and what construction by reason of such a precedent acquiesced in — if it has been acquiesced in by the States and people — has the Constitution received at the hands of all the branches of Government and of the States? Why, a construction which does place and leave the whole "sword" of the whole country in the hands of the President of the United States. "The rights of the States will take care of themselves," we are told, and it is very idle, foolish, and somewhat treasonable talk to think any thing about the rights of the States or say any thing about them. Well, there is actually pending in Congress a bill which proposes to annihilate the jurisdiction of the State courts over personal actions for wrongs and injuries upon the suggestion only by the defendant, when he comes into court, that what he has done and what is complained of was done by order of the President of the United States. Actually, it is proposed that if any man sues another citizen of the same State for a personal wrong or injury in a court of the State — nay, sir, it extends to criminal proceedings also as well as civil — the cause shall instantaneously be transferred into the Federal courts on the suggestion only by the defendant that what he did was done by order of the President. Suppose that takes effect.

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Suppose that is acquiesced in. What construction have the powers of the General Government then received at the hands of all the departments of Government and at the hands of the people in reference to that? That the entire jurisdiction of the State courts over personal wrongs as between citizen and citizen is stricken out of existence, when it is set up in defense, that the President ordered the act to be done. These theories have exerted and are exerting a most mischievous effect on the power of the Administration to cope with the public enemy; and I need not say how they have divided the public sentiment and the feeling of the North. I need not say how necessary they have made it that these things should undergo discussion, should be brought to the issue of the ballot-box. There is a vulgar error prevalent among a certain class of second-rate statesmen, that violence is strength. It is a lamentable mistake, and in constitutional countries and in countries which are under the control of constitutional principles, it is the falsest suggestion upon which men could possibly act. No government in any constitutional country is strong, powerful, able to discharge its duty to the utmost, able to call forth all the resources of the people for the accomplishment of any great public object, that does not faithfully and strictly pursue the fundamental law of the land. Bear with me, sir, one moment longer, while I endeavor to say why it is that I feel every infraction of the Constitution as if it were a wound inflicted upon my own body or a wrong done to my own soul. It is not, sir, I assure you, because I have endeavored in some humble and imperfect way to explore the foundations of our liberties and to explain them to my countrymen. It is because I feel in every fiber of my existence that this is the last written Constitution we shall ever have. It is because I feel an innate and undying conviction that if you suffer that instrument to be overborne — that if you acquiesce in serious and great infractions of its provisions — you will throw every thing into a state of entire confusion, and there will be an end of this experiment of self-government founded on and residing in the text of a written Constitution, explained, illustrated, and enforced by the peaceful operation of a supreme judiciary. I do not forget, sir, that the Southern Confederacy, so called, have framed for themselves a written Constitution founded on that of the United States as a model, and with some amendments which may be of more or less theoretical or practical value; but, sir, it does seem to me that no one can look at their con-

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dition and prospects without seeing that, although in point of form they may, if they succeed in obtaining their independence and can maintain their position, go on ostensibly under a written constitution, that their government must necessarily and will inevitably be a military government and be conducted by force. God forbid, sir, that we should follow that example. L e t us take care how we acquiesce in any infractions of the Constitution. L e t us take care how we fail to do our utmost to instruct and enlighten the people, and to cause them to reverence and to cling to it as the great salvation rock. ( Applause. ) With these remarks, sir, I beg leave to read the Constitution for this Society, which the Committee have instructed me to report. Mr. Curtis then read the following draft of a Constitution, which was unanimously adopted as the Constitution of the Society: CONSTITUTION. ARTICLE I.

This Society shall be styled The New York Society for the Diffusion of Political Knowledge. ARTICLE II.

The objects of the Society shall be to disseminate a knowledge of the principles of American constitutional liberty; to inculcate correct views of the Constitution of the United States, of the powers and rights of the Federal Government, and of the powers and rights reserved to the States and the people; and generally to promote a sound political education of the public mind; to the end that usurpations may be prevented, that arbitrary and unconstitutional measures may be checked, that the Constitution may be preserved, that the Union may be restored, and that the blessings of free institutions and public order may be kept by ourselves, and be transmitted to our posterity. ARTICLE III.

The officers of the Society shall consist of a President, a Treasurer, a Secretary, and three Standing Committees, who shall be chosen annually. The Standing Committees shall be a Committee on Publications, to consist of seven members, and a Committee of Finance, to consist of ten members; and these two committees shall constitute the Executive Committee of the Society, of which the President, the Treasurer, and the Secretary shall be members ex officiis. Each committee may fill vacancies in its own body. ARTICLE IV.

The Executive Committee shall have the general direction of the operations and measures of the Society in the promotion of its objects; but no pamphlet,

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book, or other publication shall be circulated or issued in the name or under the auspices of the Society without being first approved by the Committee on Publications; and no person shall deliver a lecture or other public address in the name or under the auspices of the Society without first receiving a written appointment therefor from the Chairman of the said Committee on Publications. ARTICLE

v.

The Committee on Finance shall collect funds for the use of the Society, and pay them over to the Treasurer, whose duty it shall be to pay therefrom, under the direction of the Executive Committee, all expenses that may be incurred by the Society in the prosecution of its objects. ARTICLE

VI.

Regular meetings of the Society shall be held on the first Saturday in April, October, and January, in each year, and special meetings may be held at any time, under the direction of the President. ARTICLE

VII.

The Secretary shall record all the proceedings of the Society; he shall also act as Secretary of the several committees, and shall notify all meetings of the Society, or its committees. ARTICLE

VIII.

Other citizens of the United States, of full age, and of good moral character, may be admitted as members of this Society, on the nomination of two members, at any regular or special meeting of the Society, by a vote of two thirds of the members present. ARTICLE

IX.

No amendment of this Constitution shall be made without the vote of three fourths of the members present at a regular meeting, and notice thereof shall be given at the preceding regular meeting. ARTICLE

Χ.

The several committees shall report their doings at each regular meeting, and the Secretary shall record the same in the records of the Society. SAMUEL F . MANTÓN

B.

MORSE,

President.

MARBLE,"!

W M . MCMURRAY, ^ S e c r e t a r i e s .

There being no further business before the Society, an adjournment was effected. The movement thus inaugurated will be a great power in the community and country. Resolved, That it be recommended to all citizens in the various

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cities, counties and villages of this and other States, who approve of the objects expressed in this Constitution, that they organize auxiliary societies, and open communication with the New-York Society. LETTER FROM M R . TILDEN IN REPLY TO THE EVENING POST. To

THE EDITORS OF THE EVENING

POST:

IN the Evening Post of this afternoon appears a pretended report of remarks made by me at a private meeting of gentlemen held at Delmonico's, last evening, which, I think, your senior editor would not be likely to credit, even though he saw it in a journal that derives its largest claim to public confidence from the authority his name gives to whatever it contains. I should not deem this publication, however it might misrepresent me, of sufficient importance to require a public notice, except for one single consideration. It is a studied attempt to give to the meeting the aspect of a revolutionary intrigue, and imputes to me expressions or implications countenancing in some degree, a resort to revolutionary means to effect a change in the policy of the present Federal Administration. At an ordinary time, I should treat such an imputation with silent contempt. But the time is not ordinary, very far from it. There is a danger yet unrevealed in our future, transcending the calamities we are now experiencing. The premonitions of it are in the wild ideas, which, discarding the maxims and the habits of constitutional government, for the expediency of the moment, grasp at revolutionary power as an instrument of every successive illusion in our national policy. It illustrates how contagious this bad example is, when set by these who administer the government during a period of public danger, that we daily hear from their partisans, and sometimes from their antagonists, propositions subversive of all constitutional government and of our private rights and personal safety. There are few journals in this city in whose columns, during the present civil war, can not be found invocations to violence against dissentients from their opinions. Among those failing to use their influence to restrain, but often giving countenance to this dangerous tendency, I lament to recall one whose early renown was earned by its advocacy of free discussion, personal rights, and local self-government.

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We were fast degenerating into a condition in which violence, exercised under the false pretense of lawful authority, or by mobs, was becoming the ordinary weapon of political discussion and partisan warfare, when the elections last fall reminded the party in power that it is not wholly irresponsible, and did something towards restoring that balance between masses representing different opinions, without which popular government is impracticable. In a generation which finds itself, as ours now does, in a situation wholly novel; which is inexperienced in the larger politics; all of whose leading minds are the growth of a period of peaceful prosperity, and of liberal self-esteem, I fear to see the public mind gradually becoming familiar with the dangerous instruments and methods of revolutionary action. The temptation to use them in aid of the theory, passion, interest, or partisanship of the hour, is immediate and urgent; the evil consequences are remote, contingent, and dimly seen, without the light of experience. That we have hitherto abstained from them is due mainly to the traditions and habits we inherited from our ancestors, wise through much costly experience. I do not think these traditions and habits can be safely broken up. Never once, on any occasion, at any time, in any place, have I failed to lift my voice against any tendency of this kind, from whatever source it proceeded. I may, perhaps, have carried my solicitude upon this subject too far. That is not my opinion. Often, when honest, patriotic men, writhing under a sense of public danger, intensified by a future into which no eye can penetrate, have appealed to me to say what we could do to save the country, I have had occasion to counsel patience with errors which were drifting us as well as their authors to swift destruction, to revive the sense that the men who at present administer the government are our constitutional and legal agents, and that, though they claim from us our full share of the burdens and sacrifices which their policy imposes, without the slightest deference to our convictions in respect to the public interests and public safety, we must still loyally accept disappointment and national disaster, if they should come before the organism of the government can be reclaimed to a better policy in the due course of the elections. It was some observations of this precise nature, more forbearing than those I now use, made while I was responding to a similar inquiry, that your reporter, by suppression and inversion, has distorted

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into exactly the opposite import. I had no information of any thing that was intended to be proposed at that meeting, or who was to be present, beyond what was conveyed by the call shown to me a few hours previously. I attended, not because I deemed the occasion of much practical moment — especially as an informal and preliminary meeting — but out of deference to the solicitude of men whose character and motives I unqualifiedly respect. I heard there no suggestion which was not moderate, patriotic, and constitutional. No allusion to peace was made. Some of the gentlemen I know to be of that class called War Democrats; and one, at least, a Republican. In my opinion, the first proposition for a dishonorable peace will come — not from those who foresaw and endeavored to avert civil war, but from that class of the Republicans who were, in a peculiar degree, its authors. But the ever-recurring question to the minds of those who think the policy of the Administration has been unwise, and generally inadequate and "too late" — and often totally impracticable, yet remains — what can those who think so do? Is there any remedy, or any relief? Can we influence, in any degree, the Administration that represents us in its calamities, if not in its counsels? Will it listen to any suggestion we can offer — will it heed any warning we can give? Slowly and sorrowfully, after eighteen months of anxious effort, beginning in November, i860, I yielded to the conviction that we must experience and exhaust each calamity, before we can make it visible to our brethren and friends, who at present hold unchecked an the balanced sway over the action of un-Federal Government. The controlling intellects of the Administration accept as the guide of their policy or reflect their own vagaries, through the worst element of their own adherents — blind partisans, visionary theorists, impracticable philanthropists, sensation journalists. The illusion which misled their minds before and at their advent to power is constantly reproduced in new forms and new applications, at every successive stage of their career. It is the voyage of a ship with a false compass; particular deviations are discovered after they have been committed; but they recur in an indefinite series, because their source remains prolific as at first. I did not say this at the meeting; but, compelled to restate my

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opinions, I do not hesitate to avow to the public what I believe to be the truth. The substance of what I did say was, that the dissemination of documents, teaching the fundamental ideas of civil liberty and constitutional government could do no harm, and might be useful, in a time when men's minds are unsettled; that, in my judgment, party action was at present wholly unnecessary, believing, as I did, that future elections would amply take care of themselves; that great caution should be exercised as to the character of all publications authorized or issued, in respect to their practical bearing on the condition of our affairs; that, after all, if we would preserve free institutions among ourselves, or reconstruct the edifice of our Federal Union, it must be chiefly through the lessons of the great teacher, experience; that in a time of war we could not deal with our government, although disapproving its policy, without more reserve than was necessary in debating an administrative question during a period of peace; that the reason was, that if we should paralyze the arm of our own government we yet could not stay the arm of the public enemy striking at us through it; that it was this peculiarity which had sometimes caused minorities to be suppressed in the presence of public danger; and made such periods perilous to civil liberty; that the generation which embraced Washington, Jefferson, Franklin, Madison and Hamilton, and which framed the glorious fabric of American constitutional federative government, had been educated for their work by a quarter of a century of experience in civil commotions; that their intellects had been employed in studying the fundamental questions of government and society in the lights of history, while they were daily reducing its lessons to practice, until they were able to limit theory by practice, and to enlighten practice by theory; that the next generation, which embraced Jackson, Clay, Webster, Wright and their compeers, had the fresh traditions of their fathers; that within the last ten years that generation had wholly disappeared; that the present generation — not inferior in intelligence, nor, perhaps, in dormant public virtue, had neither experience nor traditions as a practical guide for their conduct; that the statesmen of the present time, had, almost without an exception, been born and educated and attained their political eminence during a period of prosperity and peace, in which the mere mechanical

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action of the government had surmounted every obstacle it had hitherto met, and in which the political philosophy of our wise ancestors had fallen into desuetude, and a race had grown up formed amid the discussion of the small administrative questions, and amid the competitions of professional politicians, for the petty honors and emoluments of office; that generations, like individuals, do not completely understand inherited wisdom until they have reproduced it in their own experience, and, finally, that I supposed we must travel through the whole cycle in order to learn what we ought to have known from the historic past. The only mention I made of Mr. Lincoln was in illustrating this idea; and what I said was, that a man whose whole knowledge and experience of statesmanship was derived from one term in Congress, a long service in the county conventions at Sangamon, a career at nisi prius in the interior of Illinois, and some acquaintance with the lobby at Springfield, had now to deal with the greatest questions and most complicated forces of modern history. I had met with Mr. Lincoln before he was thought of for the Presidency, and have known much of him from his neighbors and friends. I have never been disposed to treat him so uncharitably as is often done by the factions into which his party is divided under the lead of Mr. Chase and Mr. Seward in his own Cabinet, which have scuffled over his body for power from the very day of his election, to the dissensions of which some of the vacillations of the Administration are to be ascribed; and to the occasional ascendency of the most dangerous of which not only fatal mistakes of civil polity, but most of our military disasters, can be distinctly traced. I am quite aware how difficult is the conduct of a constitutional opposition, during a period of war; how necessary it is to guard against its degenerating into faction, and to keep its measures directed to attaining the utmost practical good for the country at every varying stage of public affairs. I know, also, that such an opposition is often the only means of preserving civil liberty, or of conducting an existing war to a successful termination. I have hitherto never failed to see the exact line between opposition and faction, or to keep within it, with an impartiality at no moment shaken by interest, passion, prejudice or association. I have not for an instant had out of mind the infinite advantages of using, if possible, those who now sway the government, and must do so, though

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in a less degree, for two years longer, as the instruments of the national salvation. It was only when I saw them yielding daily more and more to fatal influences that I looked around for a counterpoise in a constitutional opposition. History affords no example of so liberal and generous — I might say prodigal — a support of an administration by the mass of those who dissent from its policy and disapprove its management. How means more vast than were ever before placed at the disposal of an administration have been employed, and with what results, I pronounce no judgment. I leave it to the testimonies daily coming to the public from those who were largely instrumental in bringing this Administration into existence. My view of duty on this subject has been purely and exclusively a matter of the judgment. As long ago as 1854, having broken all party ties, by firm resistance to the repeal of the Missouri Compromise, Mr. Preston King told me that the politicians of the South would never forgive me; and asked me if I thought my name could pass the Senate of the United States? I answered that it was of very little consequence to me whether it could or not; but that it was of great consequence to me that I should do what I thought best for the country. The termination of an intercourse, during which he had persistently sought to engage me with himself in the work of forming the Republican party, was a letter of warning, in which I said, in substance, that every thing that could be usefully or safely done to protect all the interests and rights of the North, could be even better accomplished without the use of such a dangerous agency; and that such an organization would either be a political blunder, or it would be a political crime, in creating a conflict in which the government would probably perish. This conviction, matured by long meditation in retirement and almost political isolation, governed my action ever after by a motive of patriotic duty so overwhelming that there was no room for any other motive. When unexpected events swept us near to the fatal brink, this conviction was fully stated through the columns of the Evening Post, in October, i860, with the reasons of it, deduced from the nature of men and of parties, in the light of history and of the principles and practices of the great men who founded free government for this continent. I feel my judgment of what was right and wise, and what is now right and wise for us to do, in this most important crisis of

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our national existence, assured by the accuracy with which, in that prevision, I estimated every element of the question; and, though ready to accept with candor any new lights, I see, as yet, no reason to question my conclusions. If the Evening Post, in the issue, from that time to the present, between its opinions and mine, can stand the same test, it may find some excuse for a dogmatic assault I shall not imitate, upon the opinions and motives of others, not less conscientious and patriotic than itself, and, as private citizens, less exposed than it is to the misleading influences of the turbid current of partisanship and journalism. S. J. TILDEN. NEW-YORK,

Saturday evening,'! Feb. 7, 1863. t DANIEL

WEBSTER.

Mr. Webster's definition of liberty in his Richmond speech, can not be too often repeated. He said: "Why, gentlemen, there is a good axiom extant, that the quantity of liberty we possess, is precisely equal to the quantity of restraint we put upon the government. And this is true. If the government is restrained from putting its hand in certain particulars upon you, to that extent you are free, and no more. And if individuals are restrained from putting their hands upon you, you have more freedom. All liberty, therefore, consists in putting such a restraint upon your governments, and upon individuals, that they can not touch your rights or your liberties." HENRY

CLAY.

Letter of Henry Clay to the Ashland Club, on his birthday: ASHLAND, Sept. 2, 1843. Allow me to select a subject for one of your tracts, which, treated in your popular and condensed way, I think would be attended with great and good effect. I mean Abolition. It is manifest that the ultras of that party are extremely mischievous, and are hurrying on the country to fearful consequences. They are not to be conciliated by the Whigs. Engrossed with a single idea, they care for nothing else. And yet they would see the administration of the Government precipitate the nation into absolute ruin, before they would lend a M Y D E A R SIR:

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helping hand to arrest its career. They treat worse, denounce most, those who treat them best, who so far agree with them as to admit slavery to be an evil. Witness their conduct toward Mr. Briggs and Mr. Adams, in Massachusetts, and toward me. I will give you an outline of the manner in which I would handle it. Show the origin of slavery; trace its introduction to the British government; show how it is disposed of by the Federal Constitution; that it is left exclusively to the States, except in regard to fugitives, direct taxes and representation. Show that the agitation of the question in the free States will first destroy all harmony, and finally lead to disunion — poverty and perpetual war — the extermination of the African race — ultimate military despotism. But the great aim and object of your tract should be to arouse the laboring classes of the free States against Abolition! Depict the consequences to them of immediate abolition. The slaves being free, would be dispersed throughout the Union; they would enter into competition with the free laborer — with the American, the Irish, the German — reduce his wages, be confounded with him, and affect his moral and social standing. And as the ultras go both for Abolitionism and amalgamation, show that their object is to unite in marriage the laboring white man and black woman, to reduce the white laboring man to the despised and degraded condition of the black man. I would show their opposition to colonization. Show its humane, religious, and patriotic aim. That they are those whom God has separated. Why do Abolitionists oppose colonization? To keep and amalgamate together two races in violation of God's will, and keep the blacks here, that they may interfere with, degrade, and debase the laboring whites! Show that the British government is cooperating with the Abolitionists for the purpose of dissolving the Union. I am perfectly satisfied that it will do great good. Let me hear from you on this subject.

HENBY CLAY.

Five years earlier than this, (1838,) the U.S. Senate adopted the following resolutions, offered by Mr. Clay: Resolved, That when the District of Columbia was ceded by the States of Virginia and Maryland to the United States, domestic slavery existed in both of those States, including the ceded territory, and that, as it still continues in both of them, it could not be abolished within the District, without a violation of that good faith

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which was implied in the cession, and in the acceptance of the territory; nor, unless compensation were made to the proprietors of slaves, without a manifest infringement of an amendment to the Constitution of the United States, nor without exciting a degree of just alarm and apprehension in the States recognizing slavery, far transcending in mischievous tendency any possible benefit which could be accomplished by the abolition. Resolved, therefore, That it is the deliberate judgment of the Senate, that the institution of domestic slavery ought not to be abolished within the District of Columbia; and it earnestly hopes that all sincere friends of the Union, and of harmony, and general tranquillity, will cease to agitate this disturbing question. W H A T IS T H E CONSTITUTION? ABOLITION AUTHORITY TWO Y E A R S AGO.

THE Constitution of the United States is a compact of Union adopted by the thirteen original colonies in 1787-8, and '90, and as equal parties to which twenty more States have since been admitted, all to equal rights. It was in the beginning optional with each State whether it should adopt the Constitution or not, as is shown by the fact that Rhode Island did not ratify it and was not one of the United States until the twenty-ninth of May, 1790, which was more than a year after the inauguration of our first President. This compact derives its authority from the will of the people of the several States that ratified it, each in its sovereign capacity in Convention assembled. Its preamble declares that it is ordained "in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and to our posterity;" and by a continued and strict observance of it in all its parts, we might still have enjoyed under it all those blessings. This article is intended to vindicate the inviolability of this Constitution by which alone was formed our Union — which is in itself, "our government" — the rampart of our freedom, the rubicon of our rights, and the palladium of our liberties, by the authority of which the very men who seek to exceed its powers hold office under it,

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and "without which neither party nor nation, nor liberty can exist." (See N.Y. Evening Post, Aug. 22, 1861.) W A S H I N G T O N S WARNING AGAINST DESTROYING THE

CONSTITUTION.

It is important, likewise, that the habits of thinking, in a free country, should inspire caution in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding, in the exercise of the powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it which predominates in the human heart, is sufficient to satisfy us of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, AND CONSTITUTING EACH T H E GUARDIAN OF T H E PUBLIC W E A L , AGAINST INVASION

BY THE OTHERS, has been evinced by experiments, ancient and modern, some of them in our own country, and under our own eyes. To PRESERVE them must be as necessary as to INSTITUTE them. If, in the opinion of the people, the distribution or modification of the constitutional powers be, in any particular, wrong, let it be corrected by an a m e n d m e n t IN THE WAY W H I C H THE CONSTITUTION

DESIGNATES.

But let there be no change by USURPATION; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The PRECEDENT must always greatly overbalance, in permanent evil, any partial or transient benefit which the use can at any time yield. — George Washington. MADISON'S VIEWS O F CONSTITUTIONAL

LIMITATIONS.

. . . To hold the union of the States as the basis of their peace and happiness; to support the Constitution, which is the cement of Union, as well in its limitations as in its authorities; to respect the rights and authorities reserved to the States and to the people, as equally incorporated with, and essential to the success of, the general system; to avoid the slightest interference with the rights of conscience, or the functions of religion, so wisely exempted from civil jurisdiction; to preserve, to their full energy, the other salutary provisions in be-

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half of private and personal rights, and of the freedom of the press. As far as sentiments and intentions such as these can aid the fulfillment of my duty, they will be a resource which can not fail me. — President James Madison. THE RIGHTS OF MINORITIES.

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess her equal rights, which equal laws must protect, and to violate would be oppression.— Thomas Jefferson.

Pamphlet 22 [Ezra Mundy Hunt] About the War. Plain Words to Plain People by a Plain Man. (Union League, No. 2) Philadelphia,

1863

[In March, 1863, the Union League of Philadelphia issued the second of its pamphlets. Perhaps because of the insecurity of its members, it appeared not under a bold imprint like that of the Democrats who founded the Society for the Diffusion of Political Knowledge, but rather with an uninformative inscription in lieu of the name of the publisher: "Printed for Gratuitous Distribution." It was a simple historical and constitutional sketch of the background of the conflict, apparently aimed at those Philadelphia workingmen who were voting so heavily Democratic. It appeared anonymously. The author was Ezra Mundy Hunt (1830-1894), a graduate of Princeton who had practiced medicine at Metuchen, New Jersey. In 1862, when he was assistant surgeon of the 29th New Jersey Regiment, he had written another pamphlet, The War and Its Lessons. After the war, he wrote a treatise, Alcohol; as a Food and Medicine (New Haven, 1877), published by the National Temperance Society.]

T o the hard-working, sober, industrious people of the city and country, who want to see the return of peaceful and prosperous days, these plain words are addressed, in the hope that they will show how vain it is to expect their return, unless we have one heart and one mind and one purpose — ABOUT THE WAR.

IF there is any one thing about which everybody thinks and everybody talks, in these days, it is the war. How many feel right about it, it is not so easy to tell. One way to feel right about it is to understand the cause and consequences of it, and in trying to show these we need not use any harsh or unkind words. We all know how our country began. A few families came across the sea and settled on the James River, at the South, and were followed in five or six years by another party that settled on the

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shores of Cape Cod, at the North. The new-comers suffered a great many hardships, but after a while things became settled. The colonies (as they were called) were under the English government, as the Canadas are now, and for nearly one hundred and fifty years they were prosperous. They had a good understanding among themselves, and also with the British government. The farmers and fishermen of New England worked hard, and made a comfortable living. They were sober, industrious, and resolute; thought a good deal of churches and schools, and meddled very little with anybody's business but their own. The people of the colonies of New York and Pennsylvania had much the same interests with those of the more northern colonies. Iron and coal were then lying undisturbed in their mountains, while agriculture and commerce were their chief pursuits. Farther south were Delaware, Virginia, Maryland, Georgia, and the Carolinas. Their interests, then, were not materially different from the rest of the country. The people were from a different European stock, to be sure, and had different ways and manners from those of the North, and perhaps the climate and soil had some influence in making them less hardy and enterprising; but friendship and good neighbourhood prevailed all around. The vast regions of the continent now possessed by the Western and Northwestern States were then an almost unexplored wilderness. If you will take the map which your child brings home from school, and cover up the space occupied by Alabama, Arkansas, California, Florida, Illinois, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, Ohio, Tennessee, Texas, Wisconsin, Kansas, Minnesota, Oregon, and the territories of Utah, Washington, Nebraska, &c., &c., the part left uncovered will show you how narrow were the bounds of our country in its colonial state. Matters went on smoothly enough till the English Government showed a disposition to exact from us what seemed unjust. For a while this treatment was borne patiently. Humble remonstrances and petitions were sent to London, but they did not avail much; and at last our people determined to bear the yoke no longer. It took a good while (as it always does) to work the popular spirit up to the point of resistance. A body of British soldiers were posted in Boston to enforce the offensive laws, and in March, 1770, a collision occurred between a portion of this force and the populace.

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On the fifth day of that month, in the principal street of that city, the first drop of American blood was drawn by a British bullet, and it kindled a spirit which has stayed on our soil from that hour to this. The perpetrators of the deed were tried, but the evidence being conclusive that the assault was provoked by the taunts and insults of the people, they were acquitted. Nevertheless, the citizens determined to rid themselves of the presence of an armed hostile force, and it was but a few days before every British soldier was withdrawn from that city. Three years after this a cargo of tea was sunk in Boston harbour, to avoid paying the duties which the British Government imposed on it. The people were determined not to submit to what they deemed oppressive and tyrannical laws. T o resist was a bold step for the feeble colonists to take. They would cut off their chief resource for a comfortable subsistence. They had no manufactures — had made but little progress in the mechanic arts — had f e w commercial privileges beyond those which the mother country furnished or controlled — and by this step they would involve themselves in a war with one of the most powerful nations in the world, and that, too, the nation from which they sprang, and with which they had the closest ties. W h o was there to give them succour or to pity them, if they should fail in accomplishing their deliverance? T w o years more passed before the separating blow was struck, and the Colonies — one and all — declared themselves forever free from British dominion. For seven long and gloomy years was the battle fought. Under the great and good Washington, whose trust in the overruling providence of God was as firm as the Alleghanies, an army was maintained at sacrifices almost incredible and in the face of difficulties almost unconquerable. In spite of disasters and defeats; with many open and secret enemies and plotters of mischief in the army and in the national councils, Washington kept the confidence of the great body of the people until a complete victory was obtained, and in 1 7 8 3 an honorable treaty of peace was formed, recognizing the United States of America as a free, sovereign and independent nation. This glorious heritage, secured at such pains and sacrifices, and enhanced in value by the fruits of industry and enterprise which have accumulated during the intervening period of eighty years, w e are, to-day, in danger of losing by the most insane folly!

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In the grand struggle which ended in our freedom and in the organization of the new government, the North and the South were one, but there was, of course, much diversity of opinion as to the powers which should be relinquished by each member of the Confederacy (as it was called) to the central or general government, and it turned out upon trial that they did not relinquish enough to give it the requisite energy for accomplishing its purpose. When the people became convinced that a different government was necessary for the prosperity and safety of the country, a full and fair expression of the popular will resulted in the adoption of the Constitution, in the main as we now have it. It received the sanction of New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North and South Carolina and Georgia. All the States admitted since have acknowledged this Constitution to be the supreme law, as a condition of admission. General Washington was the first called to fill the office of President, and at the end of his second term, John Adams succeeded him. Even at this early period of our national history causes of dissension and controversy were apprehended; and in his farewell address to the people, Washington fore-warned them that "the point in the political fortress against which the batteries of internal and external enemies will be most constantly and actively ( though often covertly and insidiously) directed will be the National Union," — "the unity of government which constitutes us one people." And he enjoins it upon them "to discountenance whatever may suggest even a suspicion that it can, in any event, be abandoned, and indignantly to frown upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts." Thomas Jefferson succeeded Mr. Adams, and thenceforth a more definite shape was given to politics and parties — not by geographical lines so much as by different views of the powers and prerogatives of the general government. The leaders and supporters of the opposite creeds, known as Federalism and Democracy, were found indiscriminately at the South and at the North. From 1787 to 1824, (with the exception of the one term of Mr. Adams,) Virginia furnished all our Presidents, viz: Washington, Jefferson, Madison, and Monroe. In 1825 there was no election by the people, and the House of Representatives placed John Q. Adams

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in the Executive chair. Then came Andrew Jackson, from Tennessee, and served eight years. Thus for twenty-eight of the first thirtysix years of our history, Virginia and Tennessee furnished the Presidents, and no complaint or resistance was manifested. No double term has been served by any President since Jackson. There had been already introduced into the political machinery the mischievous principle, that a political party, upon coming into power, is justified in using the patronage of the government for the benefit of its party friends and supporters; so that upon the accession of each new incumbent the successful party expects, as a matter of right, a division of the emoluments of office among its leaders and friends. The effects of such a principle could not be otherwise than injurious to public virtue. It is nothing more nor less than a system of bribery administered under the forms of law. This mischievous doctrine keeps the political arena supplied with combatants. No sooner are the victors in possession of the spoils than the defeated party begin the struggle for their recovery. And the wisest and most beneficent administration would, in all probability, make enemies enough, in disappointed office-seekers alone, to ensure its overthrow after two terms, if not sooner. The extent of this obnoxious influence is all but boundless. Once in four years it exhibits itself on a more extended scale, but it is in daily and hourly force through all the grades of public service. A change in the political councils of Philadelphia settles and unsettles the present livelihood of many thousands of men. Who can shut his eyes to the tendency of a principle which makes the continuance of two thousand labourers in the service of the gas works of that city to depend upon their political opinions being in harmony with those of the dominant party! How far this dangerous ingredient in our political compound has engendered a lust for power and its concomitants, and so involved us in the present disasters, it is not easy to say. The contest for the Presidency for the term of 1857-1861 was sharp, Mr. Buchanan and General Fremont being the rival candidates. The former received 174 out of 296 votes. Eleven States were greatly disappointed at this result, but they did not revolt, nor attempt to block the wheels of government. When the time came to select candidates to succeed Mr. Buchanan, the Democratic party divided, as did also their opponents, so that there were four steeds upon the course — viz: Breckinridge, Douglas, Lincoln and Bell.

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There was unusual animation in the preparatory proceedings, but all things were conducted under the same forms and with the same guards that had attended every previous election. There was no pretence of fraud or violence or unconstitutionality in a single step of the process, and Abraham Lincoln was found to be the choice of the people. From that moment he represented in his person the sovereign power of the United States of America, subject only to the ceremonies of inauguration. But before his accession to office the most open and positive determination was expressed in the Southern section of the country to renounce their allegiance to the constitutional government of the country; and, unfortunately, there were connected with the chief administrative bureaus at Washington, and also with the army and navy, persons who did not disdain to avail themselves of their official positions to favour the opposers of the President elect, and to supply them beforehand with the means and facilities for making the contemplated resistance. Since every constitutional provision had been as strictly observed in the election of Mr. Lincoln as in the election of Washington, Madison, and Jackson, there was of course nothing to be done but to proceed in the organization of the government. To execute the will of a majority of the electors was simply to comply with the plain provisions of the Constitution. In the meanwhile the insurgents violently seized and held forts, arsenals, custom-houses, post-offices, and other property of the United States; declared themselves absolved from all allegiance to the government which they had covenanted to support and obey; formed themselves into an independent nation, with a new title and flag, and demanded recognition as such at home and abroad! There could be no mistake as to the position of the two communities. If there ever was a legitimate government of the United States entitled to the obedience and support of the citizens, and the respect of foreign nations, the government inaugurated March 4, 1 8 6 1 , was such. Abraham Lincoln was placed in the Executive chair by the deliberate voice of a majority of the free citizens of the United States, uttered in accordance with the forms prescribed by the Constitution. Any State or any number of States might as lawfully and as reasonably have refused to acknowledge Jefferson or Jackson to be the Chief Executive officer of the government as the

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States of South Carolina, Virginia, or Georgia refuse to submit to the administration of Mr. Lincoln. Of course the simple question for the rest of the country was, Shall we abandon the government or suppress the insurrection? Shall we give up the ship or shall we sink the piratical craft that crosses her bows and attempts to interrupt her voyage? There could be but one answer in thoughtful minds and from patriotic lips, and history will record it to the credit of a loyal people. It needed no angel nor prophet to instruct intelligent Americans as to their duty in such an emergency. They knew full well that the doctrine of "State sovereignty" when "stripped of the sophistical argument in which it is habited," means the subversion of the Federal Government. It is the arm that is stretched out between "rebellion and the halter, to rescue the traitor from the gibbet. The citizen of the nullifying State becomes a traitor to his country by obedience to the laws of the State, and a traitor to the State by obedience to the laws of his country. The scaffold and the battlefield stream alternately with the blood of their victims." To avoid such a frightful chaos, the only course was for the loyal States to present an unbroken front to the insurgents, and sternly and steadfastly insist on submission to the constituted authorities of the land, as the only condition on which hostilities can ever cease. If it is asked upon what pretence the States in rebellion assumed that attitude, there can still be but one answer, and that, too, will history record to the shame of all disloyalists. It was because a majority of the free people of the country differed from them in the choice of a ruler for the term of four years! It was a repudiation of the principle which every American ploughboy understands as the very essence of a republican government, viz: that the majority shall govern. But the inquiry still forces itself upon us, on what act of the general government could the insurgents put their finger by which the plain provisions of the Federal Constitution were violated? What privileges or protection did any of the States enjoy to which other States had equal claim and were refused? What obligations had the general government assumed which were neglected, or in what had it transcended the reservations of the several States? Could not Mr. Jefferson Davis enjoy in Massachusetts all the privileges of a citizen of the United States which Mr. Lincoln could have enjoyed

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in South Carolina? Did the government accord mail facilities, harbour defences, aid to public improvements, or freedom of speech and of the press to the North, and deny them to the South? Was any Southern Senator ever struck down in the Senate chamber of the United States, unarmed and off his guard, by a Northern member of Congress? Was any Southern citizen ever denied a hearing in our Northern courts of law, and threatened with personal violence while seeking, in a peaceful and legitimate way to obtain a decision upon a legal question of public interest? Nay, farther, who among the people of the States in rebellion even now complain that, in every substantial particular, the general government has not most honestly and faithfully fulfilled its obligations, or that a fair influence has been denied them in the councils and legislation of the country? Did the farmers and mechanics of the insurgent States murmur at taxes imposed upon them by the Federal government, or at restrictions upon their liberty to go where and do what they would? Let the laws of the revolted section of the country, and the laws of the general government, be examined, and see which interfered most with the inalienable right to life, liberty, and the pursuit of happiness. Whence, then, it is asked again, this unnatural strife? Why is it that a country which but three years ago was at peace within itself and with all the world, and in the enjoyment of almost unprecedented prosperity, has suddenly become the theatre of a ferocious, bloody, devastating civil war? The answer is at hand. It is the fruit of an insatiable lust for power. The great mass of the quiet, industrious, thrifty people of the land are drawn into a vortex which a few unprincipled demagogues have produced. Our vast foreign population — with habits, principles, and views not always in accordance with those which our Americanborn people love to cherish — have been made, in a large measure, subservient to the schemes of artful politicians. New interests have sprung up in different parts of the country, for which protection has been and is sought, and a system of "log-rolling" has been introduced into most of our legislative bodies, eminently favourable to the schemes of wily and corrupt men. The extension of the boundaries of the Union, the admission of new States, and the organization of new Territories, must of necessity have their influence in

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shaping the policy of the government, and test the elasticity of the Constitution to adapt itself to this new order of things, and in no important respect has it yet proved inadequate to the exigencies of the country. It is now encountering the sternest ordeal that any human government was ever called to pass. God grant it a safe deliverance! There seems to have been but one interest that has suffered irreparably by the growth and prosperity of our country, and that is African slavery. It has asked and demanded a protection which the Constitution, neither in its letter nor spirit, could extend to it or allow it to receive. It asked liberty (or rather claimed the right) to extend itself into free territory, and the voice of the people, uttered in a constitutional form, said, emphatically, No! The political leaders in the slave States, seeing but too clearly that if this liberty were denied, and the institution to which they are wedded were restricted to its present limits, its extinction becomes a mere question of time, resolved upon the desperate alternative of rebellion; and inasmuch as many persons who had been conspicuous in the anti-slavery ranks favoured and acted with the party that nominated Mr. Lincoln, and as the time of the outgoing of one administration and the incoming of another is usually attended with some excitement and confusion, that was seized as a fitting juncture for a demonstration. It is one of the notable tokens of the desperation which marks their course, that it should not have occurred to the seceders to consider what would be the position of their "peculiar institution" when the barriers with which the Federal government protected it, were removed. An eminent statesman once said, that "if Southern leaders would interpret the tendency of abolition doctrines wisely, they would see the value of the Union as the only thing which can preserve slavery from annihilation." After the nucleus of a new confederacy was formed, by the separation of South Carolina from the body politic, it was not difficult to persuade those who had a common interest with her in preserving slavery, to join her fortunes; but it is confidently believed that history — impartial history — will show, that in not one solitary case have the people of either of the States in rebellion, by a fair, deliberate vote, sanctioned the violation of the Union compact. But the step once taken must be maintained, and the mustering

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and equipment of armies, the building of forts and ships of war, and the shock of battle soon proclaimed, with horrid emphasis, that brothers were in deadly strife. And what can honest and true-hearted citizens now do but defend the national authority? Whatever of peace and prosperity and renown we have attained, were attained under this insulted government. Our national wealth and influence have grown up to their present position under the stars and stripes. Can we hope for a better government if we abandon the one we have? Can we trust those to govern us who themselves refuse to obey? We have a constitutional President, a constitutional legislature, and a constitutional judiciary. They may not be all or altogether such as we like, but who will guaranty something better in their place? Even if it were wise to organize our political system anew, who would rule while we are doing the work? Or who would select such a time as this for such a purpose? If a feud should occur in a family, and two out of six children should rebel against parental authority, while the other four are disposed to think their father and mother about as good care-takers as they could expect under any change, it would clearly be the part of wisdom in the dutiful children to adhere to the old folks, rather than break up the family and see what would come out of the ruin. Now the only true way for us to do in our present emergency is to make everything yield to the support of the government AS IT IS. Whatever mistakes, or neglects, or wrongs we see, or think we see, let them pass for the moment, considering that, at the worst, it is a better government than none. As soon as we are well out of this deadly struggle, we shall know with what elements we have to deal, and we can then punish, correct, and prevent as the case may demand. But now the watchword must be "Unity for the sake of the Union." "There is a time to speak and a time to keep silence," and this is a time for those who cannot uphold our government to keep silence. They must consent for the time being to endure what they may not approve, and to hold their peace, though they cannot endorse the policy of the administration. There was no mincing of matters with such persons in the great struggle of 1776, when there were far more plausible excuses for neutrality or for open opposition on the part of sympathisers with the British, than can be pleaded for

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present sympathy with the Southern insurgents, for many sagacious men held it to be very problematical whether the colonies would better their condition even if they succeeded in the contest. But no reflecting man (certainly no loyal man) can doubt that upon the complete and speedy suppression of this revolt depends — not only the prosperity and dignity, but the very existence of the American nation. The man who favours any terms with those in revolt, short of unconditional submission to the same powers that we acknowledge, is for taking away the only timber that shores up our vast political fabric, viz. : The government. Are our fellow-citizens prepared for the stupendous ruin that must follow? When the heroic struggle of the Revolution closed upon our impoverished country, burdened with an enormous debt, while the general stagnation of business and the great depreciation of the currency filled the people with gloom and discontent, it was not surprising that some open demonstrations of popular feeling should occur. And under such circumstances a plausible plea might be urged for leniency towards the offenders, which would be preposterous in the mouth of actors in the present insurrection. In two or three of the New England States such resistance was made to the public authorities as to require the employment of military force to suppress it, and fourteen of the leading spirits in the revolt were condemned to die. It was in relation to this event that W A S H I N G T O N , in a letter to C O L . H E N R Y L E E , used the following language: "You talk, my dear sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorder. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once. There is call for decision. Know precisely at what the insurgents aim. If they have real grievances redress them, if possible. * * * if they have not, employ the force of the government against them at once. Let the reins of government then be braced and held with a steady hand, and every violation of the Constitution be reprehended. If it be defective, let it be amended; but not suffered to be trampled upon whilst it has existence." Such words smack of good sense, sound logic, and true patriotism. Let them have their proper weight in these times. And what construction can be placed upon attempts to make

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the government odious, or upon a deliberate refusal to sustain and defend it, but that of hostility to its existence, and, of course, sympathy with those who seek its subversion? Can a man take fire in his bosom and not be burned? Shall disloyalty lift up its voice in our streets in 1863, and not be rebuked as emphatically as toryism was rebuked in 1776? There is a lawful government of the country. It is the only organ through which the popular will of the United States can act. It cannot be displaced nor changed, but by violence, until the official term of the various incumbents expires. Can we do better than to uphold it, and crowd its enemies to the wall? If the ground assumed by the States in revolt is yielded, what bond is there to hold together any two States that may remain — North or South, East or West? What becomes of our national power, influence, or title to respect? In such an event, must not the wealth and enterprise and energy of this young nation become the prey of contending factions, and our very name be a hissing and a byword among other nations? Our countrymen, who have plunged us into this terrific strife, knew full well the advantage they will derive from a division in Northern sentiment. And hence, those who are disposed to foment such a division, are justly regarded as hostile to the government and abettors of revolt. We should do well to learn a lesson from our enemies in this behalf, who not only concentrate all their moral and physical strength upon the issue before them, but tolerate nothing that puts it in doubt or jeopardy. What we need at this juncture is a fair expression of the loyal sentiment of the country. Let all who are true to the banner of freedom come North, and all who favour its dishonour go South, and the most sceptical would soon be convinced that we are still a nation, and that we have a constitutional government which the people are resolved to maintain at all hazards. The fight is for liberty — FOR A M E R I C A N LIBERTY — and it must be fought by ourselves. Any foreign intrusion will be regarded as impertinent and insulting. "Uncalled for interference seldom avails with the contending parties, while the well-meaning mediator involves himself in the strife to his own mischief." A wise king has warned the world, that he "who meddles with strife belonging not to him, is like one that taketh a dog by the ears." Let us, then, rally, one and all, for the Union — the Union one

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and indivisible. The moment the bond is sundered that holds the bundle of sticks together, each stick may be snapped like a pipestem. There are those who profess to think well enough of the government, but they can have no patience with the administration. And pray, what is the "government?" Is it not the power vested by the Constitution in the executive, legislative, and judicial departments? And what is the "administration" to-day, but the agents constitutionally appointed to execute the will of the people of the United States? And is not this the government? If not, what is? Surely no sensible man can be duped by the extreme absurdity of supposing that the government can be loved and the administration hated. He who in the present crisis withholds his support from the Federal government, as it is administered — gives it, in the same measure, to the rebel government, as it is administered. A B R A H A M L I N C O L N and Jefferson Davis represent the two powers that are in conflict, and it is true in this relation as in a higher and a holier one, that "no man can serve two masters. Either he will hate the one and love the other; or else he will hold to the one and despise the other." Our choice lies between the government we have and none at all. Every farmer, trader, mechanic, professional man, and labourer has a momentous interest in upholding the government till this storm is overpast. It will be time then to consider suggestions of improvement and precaution. One week of anarchy would suffice to show the value of authority, even though imperfectly and injudiciously exercised. Let us turn a deaf ear, then, to the counsels of treacherous friends as well as open enemies, and hold no man in our confidence who does not, by word and act, sustain the constitutional government of the country. Side issues, however plausible, must not be entertained for a moment. If negro slavery is throttled in the present struggle, so be it. If it escapes, it will have but a short run; but if we lose the government, we are all slaves without the choice of a master! Would that every man who has a drop of American blood in his veins could forget all other ties and interests till this transcendent question of NATIONAL INTEGRITY is decided! We are guardians of a sacred trust — more sacred than that in the keeping of any other nation upon which the sun ever shone. If we are true to ourselves, our passage through this fiery ordeal will but establish more firmly

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and lastingly our wise and beneficent government, and an unexampled career of national grandeur and prosperity awaits us. If, on the other hand, we allow ourselves to be weakened and distracted by divided counsels and irrelevant controversies, the enemy will triumph over us, the slave-power will usurp the throne of constitutional liberty, and our madness and infamy will find appropriate monuments in barren fields, shipless harbours, closed factories and workshops, unwrought mines, desolated towns and villages, deserted sanctuaries and school-houses, and a degraded, dispirited population ready to bow their necks to the heel of some military despot! Such is not the heritage we received from our fathers. Shall it be the heritage we leave to our children?