Volume II Part 15 (1/2)

The agitation of this subject brought out another still more alarming usurpation in Congress, and showed that the majority were ready to throw aside the last fragments of the Const.i.tution in order to secure our subjugation. The argument for this usurpation was thus framed: a.s.suming that the state of the ”nation” was one of general hostility, and that, being so involved, it possessed the power of self-defense, it was a.s.serted that the supreme power of making and conducting war was expressly placed in Congress by the Const.i.tution. ”The whole powers of war are vested in Congress.”--(”United States Supreme Court, Brown vs. United States,” 1 Cranch.) There is no such power in the judiciary, and the Executive is simply ”commander-in-chief of the army and navy”; all other powers not necessarily implied in the command of the military and naval forces are expressly given to Congress.

The theory was that the contingency of actual hostilities suspended the Const.i.tution and gave to Congress the sovereign power of a nation creating new relations and conferring new rights, imposing extraordinary obligations on the citizens, and subjecting them to extraordinary penalties. There is, under that view, therefore, no limit on the power of Congress; it is invested with the absolute powers of war--the civil functions of the Government are, for the time being, in abeyance when in conflict, and all State and ”national” authority subordinated to the extreme authority of Congress, as the supreme power, in the peril of external or internal hostilities. The ordinary provisions of the Const.i.tution peculiar to a state of peace, and all laws and munic.i.p.al regulations, were to yield to the force of martial law, as resolved by Congress. This was designated as the ”war power” of the United States Government.

I should deem an apology to be due to my readers, in offering for their perusal such insane extravagances, under a const.i.tutional Government of limited powers, had not this doctrine been adopted by the United States Government, and subsequently made the basis of some most revolutionary measures for the emanc.i.p.ation of the African slaves and the enslavement of the free citizens of the South. One must allow that the Chamber of Deputies of the French National a.s.sembly of 1798 had some claims to a respectable degree of political virtue when compared with the Thirty-seventh Congress and the Executive of the United States.

The specious argument for this tremendous and sweeping usurpation, designated as the ”war power,” as presented by its adherents, may be stated in a few words, thus: The Const.i.tution confers on Congress all the specific powers incident to war, and then further authorizes it ”to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The words are these:

”Congress shall have power to declare war; to grant letters of marque and reprisal; to make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Const.i.tution in the Government of the United States, or in any department or officer thereof.” [46]

It will be seen that this unlimited, despotic power was claimed for Congress in the conduct of the war under the last clause above, viz., ”to make all laws which,” etc; whereas no one familiar with the rules of legal interpretation will seriously contend that the powers of Congress are one atom greater by the insertion of this provision than they would have been if it had not appeared in the Const.i.tution. The delegation of a power gives the incidental means _necessary_ for its execution.

Another step in the usurpations begun for the destruction of slavery was the pa.s.sage by Congress of an act for the emanc.i.p.ation of slaves in the District of Columbia. The act emanc.i.p.ated all persons of African descent held to service within the District, immediately upon its pa.s.sage. Those owners of slaves who had not sympathized with us were allowed ninety days to prepare and present to commissioners, appointed for that purpose, the names, ages, and personal description of their slaves, who were to be valued by commissioners. No single slave could be estimated to be worth more than three hundred dollars.

One million dollars was appropriated to carry the act into effect.

All claims were to be presented within ninety days after the pa.s.sage of the act, and not thereafter; but there was no saving clause for minors, _femmes covert_, insane or absent persons. On his approval of the act, the Executive of the United States sent a message to Congress, in which he said:

”I have never doubted the const.i.tutional authority of Congress to abolish slavery in the District, and I have ever desired to see the national capital freed from the inst.i.tution in some satisfactory way.

Hence there never has been in my mind any questions upon the subject, except those of expediency, arising in view of all the circ.u.mstances.”

For the previous twenty-five or thirty years the subject had again and again been presented in Congress, and was always rejected. One of the incidents that led to our withdrawal from the Union was the apprehension that it was the intention of the United States Government to violate the const.i.tutional right of each State to adopt and maintain, to reject or abolish slavery, as it pleased. This step showed the justness of our apprehensions.

Among the rights guaranteed to every citizen of the United States, including the District of Columbia, was the right of property. No one could be deprived of his property by the Government, except in the manner prescribed and authorized by the Const.i.tution. Its words are these:

”No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” [47]

Whenever it was necessary in the administration of affairs that the Government should take private property for public use, it had the right to take that private property on the condition of making compensation for it, and on no other condition. Also, it could not be taken except for public use, even by making just compensation for it; nor could it be taken to be destroyed. The simple and sole condition on which the inviolability of private property could be broken by the Government itself was, that it was necessary for public use.

Otherwise, there was no const.i.tutional right on the part of the Government to take the property at all.

Again, this property, thus necessary, must be taken by due process of law. The Government had not the right to declare the mode, and arbitrarily fix the limit of price which should be paid. The negro could be taken only as other property, even admitting that he could be taken for emanc.i.p.ation. The due process of law required that the citizen's property should be appraised judicially. A court must proceed judicially in every case, summon a jury, appoint commissioners, and, under the supervision and sanction of the court, the valuation of the slave by them must proceed as it does in relation to any other property of the citizen that might be taken by the lawful exercise of the power of Congress or of the United States Government. Thus it will be seen that by this usurpation of power the Const.i.tution was violated, not only by taking private property for other purposes than for public use, but in the neglect to observe the due process of law which the Const.i.tution required.

The next step in the usurpation of power for the destruction of the right of citizens to hold property in slaves was the pa.s.sage by Congress of an act which declared that, after its pa.s.sage--

”There shall be neither slavery nor involuntary servitude in any of the Territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States, otherwise than in the punishment of crimes,” etc.

The subject had been brought forward at every session of Congress for a number of years, and was uniformly resisted by the advocates of equality among the States. We claimed an equal right with the other States to the occupation and settlement of the Territories which were the common property of the Union; and that any infringement of this right was not only a violation of the spirit of the Const.i.tution, but destructive of that equality of the States so necessary for the maintenance of their Union. We further claimed our right under this express provision of the Const.i.tution:

”The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States; and nothing in this Const.i.tution shall be so construed as to prejudice any claims of the United States or of any particular States.” [48]

The obstinate resistance of the consolidation school to our views was an evidence of their aggressive purposes, and justified still further our apprehensions of their intention to violate our const.i.tutional rights.

Another step taken to accomplish the emanc.i.p.ation of our slaves was the pa.s.sage by Congress of an act making an additional article of war for the government of the army of the United States. It was in these words:

”All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due; and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service.”

The Const.i.tution of the United States expressly declares that all such persons

”Shall be delivered up on claim of the party to whom such service or labor may be due.” [49]

In this instance Congress pa.s.sed an act declaring that they shall not be delivered up on such claim; and, as a penalty for disobedience, any officer of the army or navy should be dismissed from the service.