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THE WAR POWERS

OF

THE GENERAL GOVERNMENT

WHO MADE THE WAR.

THE STATUS OF THE CITIZENS OF THE SECEDED STATES DEFINED.
CONGRESS HAS NO POWER TO CONFISCATE SLAVES OR OTHER PRIVATE

PROPERTY.

THE OPINIONS OF JOHN QUINCY ADAMS AND CHARLES SUMNER

REFUTED.

THE RIGHT TO CAPTURE ALL PROPERTY USED FOR

INSURRECTIONARY PURPOSES.

THE RIGHT TO SUSPEND THE WRIT OF HABEAS CORPUS AND AR-

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THE purpose of the following pages is to offer some considerations in respect to the powers and duties of the General Government, in its endeavors to suppress the present insurrection.

But to treat this subject intelligently, it is requisite to recur briefly to the peculiar origin and characteristics of the insurrectionary movement.

And the first remark to be made is, that the rebellion differs from most others, in the' singular fact that it did not proceed so much from the people of the States, which nominally seceded, as from the governments of those States.

At the outset, it was, for the most part, a conspiracy of official persons. And to render the enormity greater, these very traitors, using the democratic party, as a means, had sought and obtained office only for the purpose of employing the power it gave them to strike down the government of the nation.

This was the condition of things throughout the Southern States. The Conspirators held every position of public influence, executive, legislative, and judicial; while as cabinet ministers, or members of Congress, they controlled the administration at Washington.

At length, when the opportunity, so ardently hoped for, arrived, they raised the standard of revolt; and then the loyal men of the South found themselves wholly without the means of effectual opposition to a treason which held in its hands every State authority, and seemed, at the same time, to have even the countenance of the General Government. What could these patriots do?

The adversaries of the nation bore the ensign of State sovereignty, and thus appeared to be clothed with all the colors of political legitimacy, while they possessed, in fact, the most energetic agencies of power; the purse, the sword, and the public press.

In addition to all this, the General Government, with apparent unconcern, beheld its banner trailing in the dust, yet moved not, either to avert the fact, or avenge the indignity. Can it, then, be a matter of surprise that Fidelity itself should falter, thus left without its natural protection, and in the presence of a power, for the time, irresistible ?

To hasty thinkers, it may indeed seem strange, that a sufficient number of the Southern people could be induced to acquiesce in the rebellion, so as to give it the appearance of a popularity to which it could lay no just claim. And this political enigma can only be explained by a proper appreciation of the different theories which have prevailed, most widely, in regard to the nature of the complex Federal system under which we live; and more especially, by an accurate estimate of that peculiar theory, which has always been a favorite with the South.

As is well known, at the time of framing the Constitution, American statesmen were divided into two great schools of opinion, in relation to the character of the government which they were about to organize.

One school, aware of the necessity of strength, as well to prevent anarchy as to preserve independence, was led to advocate such a powerful national government as could make itself felt at home and feared abroad.

The other school, knowing the inherent tendency of all power to usurpation, proposed to strengthen the States, as a counterpoise to the authority of the General Government.

But as it was impossible for two schools, entertaining such opposite views, to agree, and yet, since both felt the necessity to be absolute for some new system, the result was a compromise, and that compromise was the present Constitution.

The great difficulty experienced by its authors was to trace the dividing line between the powers to be granted to the National Government and those to be reserved to the States and the People. They succeeded, nevertheless, in the accomplishment of the perplexing task in a manner which must excite the admiration of all posterity.

But there was one case for which they did not provide which might seem to be more important than any other. They prescribed clearly enough the bounds of Federal and State authority, but they omitted to appoint any judge of boundaries. They constituted no umpire to determine questions arising from a conflict of jurisdictions.

And yet this was no oversight. They constituted no judge between the General and State Governments, because the exercise of any judicial functions in the case involved an impossibility. If the General Government were the exclusive judge as to the line between its own powers and those of the States it might push that line to any extent whatever. It would thus have the ability to absorb, at pleasure, the entire jurisdiction reserved to the States.

On the other hand, if the States were made the exclusive judges of the case, they could usurp in like manner all the powers of the General Government: for, whoever is judge in his own case will never fail to judge in his own favor, being sure to take for himself whatever is in controversy.

Again, to have provided some third power as arbiter in cases where the Federal Government and the States could not agree, would have rendered such power the common sovereign over both, so as to enable it to usurp every other authority.

Hence, our fathers designated no common judge between the States and the Nation; because the very idea of such a judge implies a contradiction. They therefore, merely provided, in the Federal Compact, for the division and distribution of the sovereign powers between the General Government and the States; trusting to the wisdom and prudence of each to remain content with its own share.

It has sometimes been made a question as to what is the nature of this Federal Compact, and who are the parties to it? But a very simple rule would seem to furnish a clear and decisive answer. It is a principle alike of natural law and of common sense, that all are parties to a contract who are intended to be bound by it, and assent to its terms. Hence, by this rule, the Constitution is a compact to which all the States and all the people as well as the General Government, are parties: because all these are mentioned in it, and all assented to it at the same time, or in succession.

But far different from this clear and precise view of the Federal Compact, have been the opinions of most politicians, and they have differed not less widely among themselves. For, as soon as the new government was fairly in operation, the two schools revived their old war, transferring the field of battle to the question of construction.

The advocates of strong government asserted the Constitution to be a compact between all the people of the United States in the mass, and therefore, inferred it to be indissoluble, unless by their consent.

On the other hand, those who dreaded the power of the National Government as being dangerous to the liberties of the States, assumed that the latter were in their corporate capacity the real parties to the Federal Compact; and hence, argued that any State might treat such compact as null whenever broken either by the other States, or by the General Government. And for this doctrine as to the power of any party to avoid a social compact in the case of a breach of its terms by the other side, the school of State Rights could always adduce the powerful support of the great writers upon natural law.

Rutherforth expresses it in his own inimitable style as follows:

"In these States, where the Constitution has divided the supreme power between the King and people, Grotius allows that the people have a right to resist the King by force when he invades their part of the power.

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Now, that part of the sovereign power which the monarch has, was granted to him, at first, by the compact which settled the Constitution, and is holden by him afterwards by the same compact. As long, therefore, as the obligation of the compact continues, he has a right to his part of the supreme power, and the people have no right to take it from him, either by war or by any other means, without his consent. But by wilfully and notoriously invading the other part, he breaks the constitutional compact.

"And this compact is so far like all other compacts that a violation of it on his side will leave the people at liberty to choose whether they will abide by it or not.

"A compact which is violated by one of the parties may be made void at the discretion of the other party.

"However, it is sufficient for our present purpose, that when the compact by which the people gave their civil government a part of the supreme power, is broken on his side, the obligation of it is voidable, or may be set aside at the discretion of the people."

It follows, from the point of view presented by Rutherforth, that in ease of the alleged breach of the Federal Compact, or in any question of jurisdictional power arising between a State and the General Government, each must have the independent right to determine the matter for itself, because the Constitution has appointed no umpire between them. And it is plain that if those who have no common judge will persistently assert their claim to the same thing, the force of the strongest must necessarily take it. Hence, the feeble, when associated with the strong, would seem to have no other resource left, in a case of final difference, than to withdraw from the unequal association; and the right to withdraw would also seem as clear in a case where the other party might employ the prerogative of mere strength to put aside any material article in the agreement, by which the association was originally constituted. Hence, by this apparently fair mode of reasoning, a State would have the privilege of secession in a case where the National Government should invade its reserved powers, and thus violate the compact upon which the Union is alone founded.

Now it was this theory of the Federal system which always predominated in the Southern States, and naturally so, too, because it was the doctrine most favorable to the weaker section of the Union; and weakness, by the law of instinct, as well as that of reason, never fails to look with affection upon any means which may be employed to give it equality in a contest with power. Hence this theory was taught and accepted, in one form or another, almost universally for years in all the States where the rebellion is now in the ascendant.

The demagogues used it as the most reliable instrument to raise themselves to

official place; and, at length, the conspirators seized upon it as the only possible lever which could move their States out of the Union. Other circumstances, however, contributed to the same end. The ever-increasing numerical majority of the North excited uneasy apprehensions in the Southern mind. And, instead of laboring to tranquilize such fears, many Northern politicians were incessantly making utterances which necessarily tended to agitate them still more. At last, all these causes, operating jointly, resulted in the great insurrection.

But it is useless to consume more time in tracing the action of causes. The period for controversy has passed, and that for penning impartial history has not yet come. In the meanwhile, the urgent realities of the present demand undivided attention, and action as prompt as it should be powerful.

What, then, are the rights and duties of the General Government in its treatment of the insurrection?

This is the momentous question of the day; and the dreadful crisis seems to call for a more careful answer than it has yet received.

For, it must now be apparent to all, that this is no petty strife, but one of those great contests of arms which make eras in the war-cycle of history.

There are now seen standing face to face more than a million of men armed for murderous combat, and, as it were, pausing for the sound of the trumpet to signal them to mutual death! Yet to these is committed the question of civilization on the continent.

It, therefore, behooves us first of all to inquire, what is the object of this mighty war? Because it is the object alone which can justify the horrors of any war to a correct national conscience, or before the Judge of the Universe.

Now, on the side of the old flag, the instinctive answer of every lover of its stars is, "That we are fighting to preserve the Constitution and restore the Union." Let us then accept this answer as the first and most general criterion of the power to carry on the war. Because it is self-evident that the powers employed must never be subversive of the very purpose which they are only intended to accomplish. Therefore, since the Government is using all the sinews of the public force to restore the authority of the Constitution over others, it is obliged, by every principle of justice and prudence to keep that Constitution inviolable on its own part. It cannot act, without becoming a thing of shame among the nations of the earth, upon the insidious maxim-that the end justifies the means. It cannot adopt the flagitious doctrines of a Jacobinic delusion, and break the Constitution in order to save it. Hence the special and avowed object of the war imposes upon its conduct this one general rule-that it can be carried on alone under the direction of Constitutional powers.

Now, the first question of power which naturally suggests itself to every mind is: by what authority granted in the Constitution does the Government assume to wage such a war as this at all?

By what color of authority does it muster and march such powerful armies across the borders of the States, there to encounter other hosts equally powerful and assuming to battle by the authority of those States?

By what sanction of authority does it strew the fields of Virginia with slain and wounded, taking thousands of prisoners, and exercising, and according to the adverse force, all the usual rights of a belligerent in a great war? The spectacle is as painful as it is unparalleled, and the inquiry cannot but be relevant, where is the warrant in the Federal Compact for this?

And yet, we need not go far to find an answer. The scenes of the dread array

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