The Abolition Of Slavery The Right Of The Government Under The War Power Part 1

The Abolition Of Slavery The Right Of The Government Under The War Power.

by Various.

EMANc.i.p.aTION 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 inst.i.tution 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 const.i.tuents, 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 const.i.tutional doctrine. I believe that, so long as the slave States are able to sustain their inst.i.tutions 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 munic.i.p.al inst.i.tutions 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 Const.i.tution 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 emanc.i.p.ate 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 munic.i.p.al 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 pa.s.sing 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 sanct.i.ty of their munic.i.p.al inst.i.tutions 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 munic.i.p.al inst.i.tutions, 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 emanc.i.p.ation of the slaves. I have given here more in detail a principle which I have a.s.serted 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 pa.s.sion 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 pa.s.sion. And if, by the force of reasoning, my understanding can be convinced, I here pledge myself to recant what I have a.s.serted.

Let my position be answered; let me be told, let my const.i.tuents 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 Const.i.tution 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 emanc.i.p.ate 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 Const.i.tution 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 munic.i.p.al inst.i.tutions, 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 emanc.i.p.ation 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 pet.i.tion 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 cla.s.sification of the powers of Congress and the Executive:--

"There are, then, Mr. Chairman, in the authority of Congress and of the Executive, two cla.s.ses 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 Const.i.tution itself.

The war power is limited only by the laws and usages of nations. This power is tremendous: it is strictly const.i.tutional, 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 pa.s.s 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 const.i.tutional authority to interfere, in any way, with the inst.i.tution 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 a.s.sent. 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 INSt.i.tUTION 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 inst.i.tution of slavery in the States. It was so considered by the founders of the Const.i.tution of the United States, in which it was stipulated that Congress should not interfere, in that way, with the inst.i.tution, 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 inst.i.tution 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 inst.i.tution 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 inst.i.tuted in behalf of the owners of the slaves, and was successfully maintained.

All that series of transactions was an interference by Congress with the inst.i.tution of slavery in the States in one way--in the way of protection and support. It was by the inst.i.tution of slavery alone that the rest.i.tution of slaves, enticed by proclamations into the British service, could be claimed as property. But for the inst.i.tution 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 inst.i.tution 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 inst.i.tution has been, to use Mr. Adams's words at a later day, the vital and animating spirit of the Government; and the Const.i.tution 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 inst.i.tution 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 inst.i.tution of slavery?

The issue of a servile war may be disastrous; it may become necessary for the master of the slave to recognize his emanc.i.p.ation 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 inst.i.tution of slavery, in any way, in the States? Why, it would be equivalent to saying that Congress have no const.i.tutional authority to make peace. I suppose a more portentous case, certainly within the bounds of possibility--I would to G.o.d 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 Emanc.i.p.ation." "Do you imagine (he asks) that your Congress will have no const.i.tutional authority to interfere with the inst.i.tution 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 const.i.tutional power so to interfere, but they will be bound in duty to do it, by the express provisions of the Const.i.tution 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 inst.i.tution 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 inst.i.tutions 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 a.s.serted 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 Doc.u.ment 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 ma.s.sacre, 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 emanc.i.p.ating 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 emanc.i.p.ate 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, a.s.sist 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 a.s.sistance 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.