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The Continental Monthly, Vol. 4, No. 5, November, 1863 online

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in all respects satisfactory to the people. There have been too many
things that looked to them like want of heart, want of earnestness,
want of energy, want of wisdom, particularly in the earlier conduct of
the war - too many indications of a disposition, if not to protract the
struggle, yet to make this terrible crisis of the nation a time for
political combinations and contractors' gains. They have seen these
things with grief and stern displeasure. But the acts you denounce meet
their sovereign approval. They are in favor of all earnest and vigorous
measures for subduing the rebels, and for repressing and punishing
traitorous sympathy with them, and treasonable aid and comfort to them.

But you denounce these acts as unconstitutional. To a bare, unsupported
assumption it might be enough to say that the constitutionality of all
these acts has been again and again affirmed by authorities of far
greater weight than yours or mine - by scores of statesmen and judges of
the highest eminence in the land. But I will go a little into the
question.

I assert that it is perfectly constitutional to repress an armed
rebellion by force of arms. It is the sworn duty of the Administration
under the Constitution to do so. And all the acts you condemn come in
one way or another under powers delegated to Congress and to the
Executive. The constitutional right to make war carries with it the
constitutional right to employ all the means sanctioned by the laws of
war. This is the amply sufficient justification of each and every one of
the measures you denounce - the Emancipation Proclamation, the
Confiscation acts, the suspension of _habeas corpus_, and the arrest of
traitorous abettors of the rebels.

As to the _Proclamation_ - whether it is to be regarded as in its own
proper effect conferring the _legal_ right to freedom, or whether it is
to be taken simply as a notification to the rebels (and to the slaves
also, so far as it should get to their knowledge) of what the President,
in his supreme military capacity, was about to order and enforce, as our
armies might come into contact with the slaves - is a question not
necessary to determine here. But no intelligent man needs be told that
even in a war with a foreign enemy, with honorable belligerents, it is
always a matter lying rightfully in the discretion of the commander of
an invading army to proclaim and secure the emancipation of slaves; and
in a rebellion like this it is the height of absurdity, or of something
much worse than absurdity, to quarrel with the military policy of
depriving the rebels of the services of loyal men forced to dig trenches
and minister supplies to them. What constitutional right have rebels - in
arms for the overthrow of the Constitution - to be exempted from the
operation of the laws of war? Who but a rebel sympathizer would
challenge it for them?

As to the _Confiscation_ acts - it is enough to say that the Constitution
gives Congress power 'to declare the punishment of treason.'
Confiscation of property - as well as forfeiture of life - is a punishment
attached to this great crime in the practice, I believe, of every
Government that has existed. The rebels confiscate all the property of
men in the South loyal to the Union, on which they can lay their hands;
and their practice can be condemned by us only on the ground that the
crime of rebellion makes all their acts in support of it criminal. But
as you have no word of condemnation for the rebellion, so you have none
for their confiscation acts. You would throw the shield of the
Constitution only over the property of rebels. Loyal men, however, are
of opinion that as the hardship of paying the expenses entailed by this
accursed rebellion must fall somewhere, it is but just it should fall as
far as possible on the rebels, rather than on us. If confiscation of
rebel property chance to bear hard on the innocent children of traitors,
it is no more than what constantly chances in time of domestic peace, in
the pecuniary punishment of crimes far less heinous than treason; and
loyal men see no good reason why the hardship should not fall in part on
the children of traitors, rather than wholly (as in part it must) on our
children.

As to the suspension of the privilege of the writ of _habeas corpus_:
many foolish and disloyal people, out of the folly and disloyalty of
their hearts, talk as if the thing itself were something wicked and
monstrous; although the Constitution plainly provides that it may be
done, 'when, in cases of rebellion and invasion, the public safety may
require it.' Who is to judge of the necessity, and who is to exercise
the power of suspending it, the Constitution does not declare; and in
the silence of the Constitution and in the absence of any legislation on
the point, the President might well presume that the discretion of
exercising a power constitutionally vested somewhere, and designed to be
exercised in emergencies of public peril, liable to arise when Congress
might not be in session, was left to him. At all events, he took the
responsibility of deciding that the public safety required its exercise.
Congress has since justified his course, and legalized the power in his
hands. The loyal people of the nation approve its action.

And finally, the constitutional right in certain cases to suspend the
ordinary privilege of the writ of _habeas corpus_ carries with it, of
course, an equally constitutional right to make what you call 'arbitrary
arrests.' The very object of granting the power to vacate the privilege
of the writ is to enable the Executive to hold in custody such persons
as it may judge the 'public safety requires' the holding of - without its
purpose being frustrated by judicial interference. But the power to
_hold_ in custody is utterly nugatory, if there be no power to _take_
into custody. To suppose that the Constitution grants the one, but
denies the other, is to suppose it self-stultified by contradictory
provisions - and that in a case where the public safety in time of
imminent peril is concerned. The only consistent and sensible view of
the Constitution is, that as the validity of the writ of _habeas corpus_
is the ordinary rule, and its suspension the extraordinary exception - so
the power to make arrests by civil process only is the ordinary rule,
and the power to make arrests by military or executive authority is the
extraordinary exception - both exceptions alike holding 'when, in cases
of rebellion or invasion, the public safety may require.' In such cases
the ordinary guarantees of personal liberty are constitutionally made to
give way to the operation of the extraordinary powers demanded by the
necessities of the state. It has always been so in all Governments; and
every Government - unless it suicidally abnegate its highest function and
supremest duty, that of maintaining itself and securing the national
safety - must, in time of rebellion and civil war, possess such powers,
powers to repress and prevent, in the first moment of necessity, what,
if let go on, it might be too late to cure by judicial or any other
process.

The rebels arrest, imprison, or banish those who are disaffected to
their cause. They have a right to do so, provided their rebellion itself
be justifiable; although they have made themselves objects of just
execration and abhorrence by the abominable atrocities of cruelty and
murder they have in thousands of instances perpetrated upon those whom
they knew or suspected to be faithful to the Union. Your sensibilities,
however, are excited only in behalf of the traitors among us, who have
done more, and are doing more, to aid and comfort the public enemy, and
to weaken the military power of the Government, than whole divisions of
rebels in arms. While millions of good patriots stand amazed at the
extraordinary and unparalleled leniency with which the Government has
for the most part dealt with these traitors - that is, _done nothing_
with them - you and your associates are fierce in your denunciations of
its action in the few cases in which it has temporarily arrested them;
and even the requiring of them to take the oath of allegiance as a
condition of release, has been made matter of bitter invective. What but
disloyalty to the national cause, what but sympathy with the rebels, can
prompt such denunciations - made, too, with a view to stir up popular
disaffection to the Government?

To sum up: I have shown that all the acts you denounce are as perfectly
constitutional as they are just and necessary in principle, and
sanctioned by the practice of all Governments.

But even if it were otherwise; even if the framers of the
Constitution - never contemplating the possibility of such a crisis as
the present - had embodied in that instrument no provision of
extraordinary powers for such an exigency - none the less would it be the
duty and the right of Congress and of the Executive to adopt whatever
measures they should judge the public safety to require. What the
Constitution had not granted they would be bound, if necessary, to
assume; and even if the Constitution stood in the way, they would be
bound to go over it in order to save the national existence. It is one
of those cases in which necessity gives sovereign right. It is doubtless
a very illegal thing to blow up people's houses, yet what civic
magistrate, not a fool, would hesitate to do it when nothing else could
arrest the conflagration of a city; and what court of law is there
(outside of _Liliput_, where poor Gulliver was condemned to death for
saving the royal palace by an illegal fire engine) so foolish as to
sustain an action against the magistrate in such a case? What must be
thought, then, of the good sense and loyalty of those who would
interpose the Constitution to prevent the suppression of a gigantic
rebellion, which puts the Constitution, the Government, and the national
existence in imminent peril of destruction? Who, that knows anything
which a man of decent intelligence is bound to know, but knows that
'_the salvation of the republic is the supreme law_?' On this principle
the old Revolutionary Congress went, when, without a particle of
delegated warrant from the several States, it assumed to act for the
whole people as a nation, and, among other things, invested Washington
with nearly dictatorial powers to carry on the war - a principle that
Washington had already before acted on in more than one case of summary
dealing with the Tories of his day. The sovereign sense of the nation
sustained this assumption, and gave it the validity of supreme law. And
I believe the nation would now sustain the Government in the assumption
of any powers necessary to the putting down of the rebellion, even if
ample powers were not already granted in the Constitution.

History has no record of a conspiracy more treasonable, flagitious, and
infamous than that in which this rebellion originated; no record of a
rebellion more foul, more monstrous, more wicked. The great heart of the
nation is filled with just indignation and abhorrence. It understands
and feels that every consideration of national interest and welfare, of
national honor and dignity, of justice, and fidelity to the great trust
received from the fathers of the republic, alike forbid the nation to
consent to its own dismemberment, or to a compromise with rebels in
arms, and a surrender of the great principles involved in the
contest - principles which lie at the foundation not only of our national
Government, but of all government, and all political order. It
understands and feels that the preservation of the national Government,
and of all the sacred interests bound up with it, is a necessity for the
nation, is the one grand paramount obligation now resting upon it. Its
stern determination is to carry on this war, at all costs and all
hazards, so long as there is a rebel in arms. Hundreds of loyal leaders
of the people - statesmen and jurists of the highest eminence, Southern
born as well as Northern born - have said, and only articulated the great
voice of the nation when they have said: '_Constitution or no
Constitution, put down the rebellion, and save the national existence.
Time enough then to inquire whether it was done under the Constitution,
or outside of it, or over it._'

At the same time the people believe that the Constitution gives the
Government ample powers to put down the rebellion, as they have also
given it unlimited resources of men and money. It would not be true to
say that they have always been satisfied with the progress and success
of the Government in the use of these powers and resources. There was
doubtless a time when the public feeling demanded a more clear and
decisive policy, and more vigor in the prosecution of the war. The
people would like to have had the whole military system of the country
revised and made more perfect. They would be better pleased if measures
had been seasonably taken by which we might have had a well-organized
and well-drilled army of reserve, two hundred thousand strong.
Appreciating, however, the circumstances of the country at the opening
of the war, the gigantic magnitude of the rebellion, and the immensity
and complication of the problems pressing on the Administration, they
have on the whole been disposed to be patient and trustful. And as long
as they believe there is an honest, earnest purpose in the
Administration to extinguish the rebellion by force of arms, they will
sustain it. What they would do if ever they should come to the
conviction that the national existence is in peril through incapacity,
selfish personal ambitions or treachery on the part of the
Administration, it is not necessary to predict. The conjuncture is not
likely to arrive. Of one thing, however, you may be sure: the great
loyal body of the nation have no quarrel with Congress or with the
Administration for any of the measures that are the objects of
denunciation by you and your associates, and they hold the men who utter
these denunciations to be worse enemies to their country than the rebels
in arms - morally far worse than the great mass of the misguided
followers of the rebel chiefs.


LETTER III.

SLAVERY.

Dear Sir: A considerable portion of your letter is taken up with a
discussion of the rebel Vice-President Stephen's declaration touching
slavery.

In his speech at Savannah, Mr. Stephens, speaking of the new Government
which the rebels had set up, says: 'Its foundations are laid, its corner
stone rests upon the great truth that the negro is not equal to the
white man; that slavery, subordination to the superior race, is his
natural and moral condition.'

One would think this was clear enough, and that it was doing no
injustice to its substantial purport to say that Mr. Stephens here makes
slavery the corner stone of his new Government. You say, however, that
this is 'an egregious misapprehension,' that '_he has made no such
declaration_.' 'Let us learn' (you go on) 'what he actually did say. His
language is this: 'The foundations of our new Government are laid, its
corner stone rests upon' - what? slavery? no - 'upon the _great truth_
that _the negro is not equal to the white man_, that slavery,' which he
then defines to be 'subordination to the superior race, is his natural
and moral condition.''

This is nice! How admirably your _italic_ emphasis upon the first
clause, your intercalated comments, and the slight way of bringing in
the second clause, serves to bring out the full, undivided force of the
whole sentence! What a charming union of acuteness and moral nobleness
it exhibits! Equally admirable for the same qualities is your
distinction between basing a government upon _slavery_ and basing it
upon a _great truth_ about slavery. Mr. Stephens has said that the
corner stone of his new Government rests upon the _great truth_ that
slavery is the natural and moral condition of the negro. He has not,
therefore, said that it rests on _slavery_! And so you think yourself
justified, do you, in your emphatic assertion that 'he has made no such
declaration'? You stand impregnable and triumphant - on the words! You
stick to what is 'nominated in the bond' - the very Shylock of criticism!

But not satisfied with this, you strengthen the case by argument: Mr.
Stephens did not say so, or mean so, because he would have been very
foolish if he had - so must every one be that thinks he did. Mr.
Stephens's 'language' (you say) 'could not be applied to slavery; it
would be a strange misapplication of terms to call slavery a physical,
philosophical, and moral truth.' But irresistible as your logic is, did
you really suppose that the 'plain men' who (according to your motto) in
troubled times like these 'read pamphlets,' were any of them so stupid
as to think that your wonderful distinction amounts to anything? Did you
suppose any man of decent intelligence would fail to see that it makes
no practical difference - since slavery, as an institution, was to be the
inevitable consequence of the _great truth_ about it - and that therefore
Mr. Stephens's declaration amounts substantially to saying that slavery
was to be the corner stone of his new Government; and so your assertion,
that 'he has made no such declaration,' is a paltry verbal quibble,
unworthy of a sensible and fair-minded man.

So of your way of proving that the rebel Government have adopted no such
corner stone. It is like yourself, and unparalleled but by yourself.
First, you allege that even if Mr. Stephens had said so, his individual
assertion is no law for the Government; next, that 'there is not one
word in the Constitution of the Confederacy that gives color to any such
idea as slavery being the corner stone of their Government; on the
contrary, section ix, article i, _clearly repudiates it_.' You did not
quote the article you refer to. Your 'plain men,' when they come to see
it, will perhaps have an opinion on the question why you did not. The
article is as follows: '_The importation of African negroes from any
foreign country other than the slaveholding States of the United States,
in hereby forbidden, and Congress is required to pass such laws as shall
effectually prevent the same._'

Now did you really think that this article 'clearly repudiates' the idea
of the rebels intending to have slavery for one of their fundamental
institutions, or did you presume on the ignorance or stupidity of those
you have undertaken to instruct in political knowledge? The article
itself contains no such repudiation, nor is there anything to warrant
your inference that such was its purport, and everybody that knows
anything about it, knows that it is a gross misrepresentation of its
real object to say so.

The rebel Constitution was framed by delegates from the seven Lower
Slave States. It was adopted February 8, 1861. Neither Tennessee nor
Virginia nor any of the Border States had then joined the rebel
Confederacy. Most of these States were opposed to the reopening of the
African slave trade from principle and sentiment. The material interests
of Virginia were strongly opposed to it. The staple product of Virginia
was slaves. She lived only by breeding negroes for the market of the
slave-consuming States of the Lower South. To reopen the African slave
trade would destroy the profits of her great staple. The price of
negroes would go down from _one thousand_ dollars to _two hundred_. It
was well known, however, that there had been for several years a clamor
in the Lower States for the repeal of the law of the Union prohibiting
the African slave trade, that the determination to have the trade
reopened '_in the Union or out of the Union_' had been publicly
proclaimed in South Carolina, and that the matter of demanding it from
the Congress of the Union had been before the Legislature of that State,
on the recommendation of the Governor, three or four years before the
breaking out of the rebellion.

Under these circumstances the rebel Constitution was framed. And however
important to the slave-buying interest of its framers and of the people
they assumed to represent, the opening of the African slave trade may
have been felt to be, it was felt to be far more important at that
crisis to secure the accession of Virginia and the Border States to the
rebel cause by prohibiting it. Hence the adoption of the article you
refer to without quoting, and of the next very significant article,
which you neither quote nor refer to: '_Congress shall also have power
to prohibit the importation of slaves from any State not a member of
this Confederacy._' The first of these articles, prohibiting the African
slave trade, is a guarantee to the interests of the slave breeders if
they join the Confederacy; and the second a threat, that if they do not
join it, they may have no benefit from the prohibition in the first. Yet
knowing all this, or bound to know it, you represent the prohibition of
the African slave trade in the rebel Constitution as a 'clear
repudiation' of the idea of slavery being intended to be a fundamental
institution under their Government! Shame on you! It is a thousand miles
away from having any such meaning or purpose; and I confess I am utterly
unable to conceive how any man of decent intelligence could in good
faith make the representation you do. _Suppressio veri, allegatio
falsi._

Besides, what object could you have? You vindicate the doctrine, 'the
great truth,' by which (according to you, as according to Mr. Stephens)
slavery as an institution is justified. You approve of slavery, or, as
Mr. Stephens euphistically terms it, the 'subordination of the negro to
the superior race.' You know that slavery _is_ a fundamental institution
in the rebel scheme. Why then take pains to produce a contrary
impression, by resorting to such futile distinctions, such wretched
quibbles, and such absurd logic? It seems to me nothing but a mania for
verbal distinctions and sophistical special pleas can explain such a
gratuitous self-sacrifice.

Or is it, possibly, that you thought you could persuade your 'plain men
who read pamphlets,' that in virtue of the sweet euphuism,
'subordination to the superior race,' negro slavery at the South was in
some way to be divinely transformed, and, though called slavery, was not
in fact to be slavery after the old former fashion? '_Subordination to
the superior race_'! It certainly merits the praise of Mr. Justice
_Shallow_: 'It is well said, in faith, sir; and it is well said indeed,
too; ... and it is good, yea, indeed is it: good phrases are surely, and
ever were, very commendable. Very good; a good phrase!'

But _you_ knew it was to be the _same sort of subordination_ that has
always prevailed at the South. What is that? It is a subordination that
is legally determined as follows: 'Slaves shall be deemed, held, taken,
reputed, and adjudged in law to be '_chattels personal_ in the hands of
their owners and possessors, and their executors, administrators, and
assigns, to all intents, constructions, and purposes whatever.' (South
Carolina Laws, 2 Brevard's Digest, 229.) 'A slave is one who is in the
full power of a master to whom he belongs. The master may sell him,
dispose of his person, his industry, and his labor. He can do nothing,
possess nothing, nor acquire anything but what must belong to his
master.' (Louisiana Civil Code, art. 35.) 'The slave is entirely subject
to the will of his master.' (Idem, art. 173.)

This is the legal condition of the slave - the same in all the
slaveholding States. The laws and decisions resting upon this principle
of chattelhood and absolute ownership and dominion are too numerous to
cite. They may be summed up in the words of Judge Crenshaw (1 Stewart's
Ala. Rep., 320): '_the slave has no civil rights_.' It is matter of
settled law, that he can make no contract; cannot form a legal marriage;
cannot constitute a family - husbands and wives, parents and children,
being liable (except in Louisiana) to be sold apart; cannot protect his
wife's or daughter's chastity against the master's will; has no right of
self-defence, but may be lawfully killed for resisting or striking his
master or (in some States) any white man; has no appeal from his master;
can bring no action; cannot testify in courts; has no right to
education, but teaching him to read and write is penally prohibited.

The laws do not pretend to recognize and protect him as a person, except
against murder and excessive cruelty; and these laws are nullified if
the master take care to kill or torture him apart from the presence of
white witnesses; and even if there be legal witnesses, the murderer or


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Online LibraryVariousThe Continental Monthly, Vol. 4, No. 5, November, 1863 → online text (page 7 of 20)