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THE ABOLITION OF SLAVERY THE RIGHT OF THE GOVERNMENT UNDER THE WAR POWER

By William Lloyd Garrison and Others




EMANCIPATION UNDER THE WAR POWER.

Extracts from the speech of John Quincy Adams, delivered in the U.S.
House of Representatives, April 14 and 15, 1842, on War with Great
Britain and Mexico: -

What I say is involuntary, because the subject has been brought into
the House from another quarter, as the gentleman himself admits. I
would leave that institution to the exclusive consideration and
management of the States more peculiarly interested in it, just as
long as they can keep within their own bounds. So far, I admit that
Congress has no power to meddle with it. As long as they do not step
out of their own bounds, and do not put the question to the people of
the United States, whose peace, welfare and happiness are all at
stake, so long I will agree to leave them to themselves. But when a
member from a free State brings forward certain resolutions, for
which, instead of reasoning to disprove his positions, you vote a
censure upon him, and that without hearing, it is quite another
affair. At the time this was done, I said that, as far as I could
understand the resolutions proposed by the gentleman from Ohio, (Mr.
Giddings,) there were some of them for which I was ready to vote, and
some which I must vote against; and I will now tell this House, my
constituents, and the world of mankind, that the resolution against
which I would have voted was that in which he declares that what are
called the slave States have the exclusive right of consultation on
the subject of slavery. For that resolution I never would vote,
because I believe that it is not just, and does not contain
constitutional doctrine. I believe that, so long as the slave States
are able to sustain their institutions without going abroad or
calling upon other parts of the Union to aid them or act on the
subject, so long I will consent never to interfere. I have said this,
and I repeat it; but if they come to the free States, and say to
them, you must help us to keep down our slaves, you must aid us in an
insurrection and a civil war, then I say that with that call comes a
full and plenary power to this House and to the Senate over the whole
subject. It is a war power. I say it is a war power, and when your
country is actually in war, 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. But when the laws of war
are in force, what, I ask, is one of those laws? It is this: that
when a country is invaded, and two hostile armies are set in martial
array, the commanders of both armies have power to emancipate all the
slaves in the invaded territory. Nor is this a mere theoretic
statement. The history of South America shows that the doctrine has
been carried into practical execution within the last thirty years.
Slavery was abolished in Columbia, first, by the Spanish General
Morillo, and, secondly, by the American General Bolivar. It was
abolished by virtue of a military command given at the head of the
army, and its abolition continues to be law to this day. It was
abolished by the laws of war, and not by municipal enactments; the
power was exercised by military commanders, under instructions, of
course, from their respective Governments. And here I recur again to
the example of Gen. Jackson. What are you now about in Congress? You
are about passing a grant to refund to Gen. Jackson the amount of a
certain fine imposed upon him by a Judge, under the laws of the State
of Louisiana. You are going to refund him the money, with interest;
and this you are going to do because the imposition of the fine was
unjust. And why was it unjust? Because Gen. Jackson was acting under
the laws of war, and because the moment you place a military commander
in a district which is the theatre of war, the laws of war apply to
that district.


I might furnish a thousand proofs to show that the pretensions of
gentlemen to the sanctity of their municipal institutions under a
state of actual invasion and of actual war, whether servile, civil
or foreign, is wholly unfounded, and that the laws of war do, in all
such cases, take the precedence. I lay this down as the law of
nations. I say that military authority takes, for the time, the
place of all municipal institutions, and slavery among the rest; and
that, under that state of things, so far from its being true that the
States where slavery exists have the exclusive management of the
subject, not only the President of the United States, but the
Commander of the Army, has power to order the universal emancipation
of the slaves. I have given here more in detail a principle which I
have asserted on this floor before now, and of which I have no more
doubt than that you, sir, occupy that chair. I give it in its
development, in order that any gentleman from any part of the Union
may, if he thinks proper, deny the truth of the position, and may
maintain his denial; not by indignation, not by passion and fury, but
by sound and sober reasoning from the laws of nations and the laws of
war. And if my position can be answered and refuted, I shall receive
the refutation with pleasure; I shall be glad to listen to reason,
aside, as I say, from indignation and passion. And if, by the force
of reasoning, my understanding can be convinced, I here pledge myself
to recant what I have asserted.

Let my position be answered; let me be told, let my constituents be
told, the people of my State be told - a State whose soil tolerates
not the foot of a slave - that they are bound by the Constitution to
a long and toilsome march under burning summer suns and a deadly
Southern clime for the suppression of a servile war; that they are
bound to leave their bodies to rot upon the sands of Carolina, to
leave their wives widows and their children orphans; that those who
cannot march are bound to pour out their treasures while their sons
or brothers are pouring out their blood to suppress a servile,
combined with a civil or a foreign war, and yet that there exists no
power beyond the limits of the slave State where such war is raging
to emancipate the slaves. I say, let this be proved - I am open to
conviction; but till that conviction comes, I put it forth not as a
dictate of feeling, but as a settled maxim of the laws of nations,
that, in such a case, the military supersedes the civil power; and on
this account I should have been obliged to vote, as I have said,
against one of the resolutions of my excellent friend from Ohio, (Mr.
Giddings,) or should at least have required that it be amended in
conformity with the Constitution of the United States.




THE WAR POWER OVER SLAVERY.

We published, not long ago, an extract from a speech delivered by John
Quincy Adams in Congress in 1842, in which that eminent statesman
confidently announced the doctrine, that in a state of war, civil or
servile, in the Southern States, Congress has full and plenary power
over the whole subject of slavery; martial law takes the place of
civil laws and municipal institutions, slavery among the rest, and
"not only the President of the United States, but the Commander of the
Army, has power to order the universal emancipation of the slaves."

Mr. Adams was, in 1842, under the ban of the slaveholders, who were
trying to censure him or expel him from the House for presenting a
petition in favor of the dissolution of the Union. Lest it may be
thought that the doctrine announced at this time was thrown out
hastily and offensively, and for the purpose of annoying and
aggravating his enemies, and without due consideration, it may be
worth while to show that six years previous, in May, 1836, Mr. Adams
held the same opinions, and announced them as plainly as in 1842.
Indeed, it is quite likely that this earlier announcement of these
views was the cause of the secret hostility to the ex-President, which
broke out so rancorously in 1842. We have before us a speech by Mr.
Adams, on the joint resolution for distributing rations to the
distressed fugitives from Indian hostilities in the States of Alabama
and Georgia, delivered in the House of Representatives, May 25, 1836,
and published at the office of the National Intelligencer. We quote
from it the following classification of the powers of Congress and
the Executive: -


"There are, then, Mr. Chairman, in the authority of Congress and of
the Executive, two classes of powers, altogether different in their
nature, and often incompatible with each other - the war power and
the peace power. The peace power is limited by regulations and
restricted by provisions prescribed within the Constitution itself.
The war power is limited only by the laws and usages of nations. This
power is tremendous: it is strictly constitutional, but it breaks
down every barrier so anxiously erected for the protection of
liberty, of property, and of life. This, sir, is the power which
authorizes you to pass the resolution now before you, and, in my
opinion, no other."


After an interruption, Mr. Adams returned to this subject, and went
on to say: -


"There are, indeed, powers of peace conferred upon Congress which
also come within the scope and jurisdiction of the laws of nations,
such as the negotiation of treaties of amity and commerce, the
interchange of public ministers and consuls, and all the personal and
social intercourse between the individual inhabitants of the United
States and foreign nations, and the Indian tribes, which require the
interposition of any law. But the powers of war are all regulated by
the laws of nations, and are subject to no other limitation...It
was upon this principle that I voted against the resolution reported
by the slavery committee, 'that Congress possess no constitutional
authority to interfere, in any way, with the institution of slavery
in any of the States of this Confederacy,' to which resolution most
of those with whom I usually concur, and even my own colleagues in
this House, gave their assent. 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. The existing law prohibiting the importation of slaves into
the United States from foreign countries is itself an interference
with the institution of slavery in the States. It was so considered
by the founders of the Constitution of the United States, in which it
was stipulated that Congress should not interfere, in that way, with
the institution, prior to the year 1808.

"During the late war with Great Britain, the military and naval
commanders of that nation issued proclamations, inviting the slaves
to repair to their standard, with promises of freedom and of
settlement in some of the British colonial establishments. This
surely was an interference with the institution of slavery in the
States. By the treaty of peace, Great Britain stipulated to evacuate
all the forts and places in the United States, without carrying away
any slaves. If the Government of the United States had no power to
interfere, in any way, with the institution of slavery in the States,
they would not have had the authority to require this stipulation. It
is well known that this engagement was not fulfilled by the British
naval and military commanders; that, on the contrary, they did carry
away all the slaves whom they had induced to join them, and that the
British Government inflexibly refused to restore any of them to their
masters; that a claim of indemnity was consequently instituted in
behalf of the owners of the slaves, and was successfully maintained.
All that series of transactions was an interference by Congress with
the institution of slavery in the States in one way - in the way of
protection and support. It was by the institution of slavery alone
that the restitution of slaves, enticed by proclamations into the
British service, could be claimed as property. But for the
institution of slavery, the British commanders could neither have
allured them to their standard, nor restored them otherwise than as
liberated prisoners of war. But for the institution of slavery, there
could have been no stipulation that they should not be carried away
as property, nor any claim of indemnity for the violation of that
engagement."


If this speech had been made in 1860 instead of 1836, Mr. Adams
would not have been compelled to rely upon these comparatively
trivial and unimportant instances of interference by Congress and
the President for the support and protection of slavery. For the
last twenty years, the support and protection of that institution has
been, to use Mr. Adams's words at a later day, the vital and
animating spirit of the Government; and the Constitution has been
interpreted and administered as if it contained an injunction upon
all men, in power and out of power, to sustain and perpetuate
slavery. Mr. Adams goes on to state how the war power may be used: -


"But the war power of Congress over the institution of slavery in
the States is yet far more extensive. Suppose the case of a servile
war, complicated, as to some extent it is even now, with an
Indian war; suppose Congress were called to raise armies, to supply
money from the whole Union to suppress a servile insurrection: would
they have no authority to interfere with the institution of slavery?
The issue of a servile war may be disastrous; it may become
necessary for the master of the slave to recognize his emancipation
by a treaty of peace; can it for an instant be pretended that
Congress, in such a contingency, would have no authority to interfere
with the institution of slavery, in any way, in the States? Why, it
would be equivalent to saying that Congress have no constitutional
authority to make peace. I suppose a more portentous case, certainly
within the bounds of possibility - I would to God I could say, not
within the bounds of probability - "


Mr. Adams here, at considerable length, portrays the danger then
existing of a war with Mexico, involving England and the European
powers, bringing hostile armies and fleets to our own Southern
territory, and inducing not only a foreign war, but an Indian, a
civil, and a servile war, and making of the Southern States "the
battle-field upon which the last great conflict will be fought
between Slavery and Emancipation." "Do you imagine (he asks) that
your Congress will have no constitutional authority to interfere with
the institution of slavery, in any way, in the States of this
Confederacy? Sir, they must and will interfere with it - perhaps to
sustain it by war, perhaps to 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 that your slaveholding
States become the theatre 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, from a claim of indemnity for slaves taken or
destroyed, to the cession of States burdened with slavery to a
foreign power." - New York Tribune.



THE WAR IN ITS RELATION TO SLAVERY.

To THE EDITOR OF THE NEW YORK TRIBUNE:



SIR, - Our country is opening up a new page in the history of
governments. The world has never witnessed such a spontaneous
uprising of any people in support of free institutions as that now
exhibited by the citizens of our Northern States. I observe that the
vexed question of slavery still has to be met, both in the Cabinet
and in the field. It has been met by former Presidents, by former
Cabinets, and by former military officers. They have established a
train of precedents that may be well followed at this day. I write
now for the purpose of inviting attention to those principles of
international law which are regarded by publicists and jurists as
proper guides in the exercise of that despotic and almost unlimited
authority called the "war power." A synopsis of these doctrines was
given by Major General Gaines, at New Orleans, in 1838.

General Jessup had captured many fugitive slaves and Indians in
Florida, and had ordered them to be sent west of the Mississippi. At
New Orleans, they were claimed by the owners, under legal process;
but Gen. Gaines, commanding that military district, refused to
deliver them to the sheriff, and appeared in court, stating his own
defence.

He declared that these people (men, women and children) were
captured in wars and held as prisoners of war: that as commander of
that military department or district, he held them subject only to
the order of the National Executive: that he could recognize no other
power in time of war, or by the laws of war, as authorized to take
prisoners from his possession.

He asserted that, in time of war, all slaves were belligerents as
much as their masters. The slave men, said he, cultivate the earth
and supply provisions. The women cook the food, nurse the wounded and
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. Indeed, he well
supported General Butler's declaration, that slaves are contraband of
war.

The military officer, said he, 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 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. This defence of
General Gaines may be found in House Document No. 225, of the Second
Session of the 25th Congress. He sent the slaves West, where they
became free.

Louis, the slave of a man named Pacheco, betrayed Major Dade's
battalion, in 1836, and when he had witnessed their massacre, he
joined the enemy. Two years subsequently, he was captured, Pacheco
claimed him; General Jessup said if he had time, he would try him
before a court-martial and hang him, but would not deliver him to any
man. He however sent him West, and the fugitive slave became a free
man, and is now fighting the Texans. General Jessup reported his
action to the War Department, and Mr. Van Buren, then President, with
his Cabinet, approved it. Pacheco then appealed to Congress, asking
that body to pay him for the loss of his slave; and Mr. Greeley will
recollect that he and myself, and a majority of the House of
Representatives, voted against the bill, which was rejected. All
concurred in the opinion that General Jessup did right in
emancipating the slave, instead of returning him to his master.

In 1838, General Taylor captured a number of negroes said to be
fugitive slaves. Citizens of Florida, learning what had been 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, in order 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, however, were sent West, and set free.

In 1836, General Jessup wanted guides and men to act as spies. He
therefore engaged several fugitive slaves to act as such, agreeing to
secure the freedom of themselves and families if they served the
Government faithfully. They agreed to do so, fulfilled their
agreement, were sent West, and set free. Mr. Van Buren's
Administration approved the contract, and Mr. Tyler's Administration
approved the manner in which General Jessup fulfilled it by setting
the slaves free.

In December, 1814, General Jackson impressed a large number of
slaves at and near New Orleans, and kept them at work erecting
defences, behind which his troops won such glory on the 8th of
January, 1815. The masters remonstrated. Jackson disregarded their
remonstrances, and kept the slaves at work until many of them were
killed by the enemy's shots; yet his action was approved by Mr.
Madison and Cabinet, and by Congress, which has ever refused to pay
the masters for their losses.

But in all these cases, the masters were professedly friends of the
Government; and yet our Presidents and Cabinets and Generals have
not hesitated to emancipate their slaves whenever in time of war it
was supposed to be for the interest of the country to do so. This
was done in the exercise of the "war power" to which Mr. Adams
referred in Congress, and for which he had the most abundant
authority. But I think no records of this nation, nor of any other
nation, will show an instance in which a fugitive slave has been sent
back to a master who was in rebellion against the very Government who
held his slave as captive.

From these precedents I deduce the following doctrines: -

1. That slaves belonging to an enemy are now and have ever been
regarded as belligerents; may be lawfully captured and set free,
sent out of the State, or otherwise disposed of at the will of the
Executive.

2. That as slaves enable an enemy to continue and carry on the war
now waged against our Government, it becomes the duty of all
officers and loyal citizens to use every proper means to induce the
slaves to leave their masters, and cease lending aid and comfort to
the rebels.

3. That in all cases it becomes the duty of the Executive, and of all
Executive officers and loyal citizens, to aid, assist and encourage
those slaves who have escaped from rebel masters to continue their
flight and maintain their liberty.

4. That to send back a fugitive slave to a rebel master would be
lending aid and assistance to the rebellion. That those who arrest
and send back such fugitives identify themselves with the enemies of
our Government, and should be indicted as traitors.


J. R. GIDDINGS.

MONTREAL, June 6, 1861.


Accordingly, let old Virginia begin to put her house in order, and
pack up for the removal of her half million of slaves, for fear of
the impending storm. She has invited it, and only a speedy repentance
will save her from being dashed to pieces among the rocks and surging
billows of this dreadful revolution. - New York Herald, April 22.




RETALIATION.


The New York Courier and Enquirer, in an editorial, apparently from
Gen. Webb's own hand, discourses as follows: -


"Most assuredly these madmen are calling down upon themselves a
fearful retribution. We are no Abolitionists, as the columns of the
Courier and Enquirer, for the whole period of its existence, now
thirty-four years, will abundantly demonstrate. And for the whole of
that period, except the first six months of its infancy, it has been
under our exclusive editorial charge.

"Never, during that long period, has an Abolition sentiment found
its way into our columns; and for the good reason, that we have
respected, honored and revered the Constitution, and recognized our
duty to obey and enforce its mandates. But Rebellion stalks through
the land. A confederacy of slave States has repudiated that
Constitution; and, placing themselves beyond its pale, openly seeks
to destroy it, and ruin all whom it, protects. They no longer profess
any obedience to its requirements; and, of course, cannot claim its
protection. By their own act, our duty to respect their rights, under
that Constitution, ceases with their repudiation of it; and our right
to liberate their slave property is as clear as would be our right to
liberate the slaves of Cuba in a war with Spain.

"A band of pirates threaten and authorize piracy upon Northern
commerce; and from the moment that threat is carried into execution,
the fetters will fall from the manacled limbs of their slaves, and


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