The Atlantic Monthly, Volume 12, No. 70, August, 1863

EMANCIPATION

There are those who believe that the President's Proclamation will cease to be of any force at the close of the war, and that no slaves will have any right to their freedom by it except such as may be actually liberated by the military authorities.

There are others, who hold that the Proclamation has the force of law,—that by it every slave within the designated territory has now a legal right to his liberty,—and that, if the military power does not secure that right to him during the war, he may successfully appeal to the civil power afterwards.

If the Proclamation is a law, it must be conceded, that, like all the laws of war, it will cease to be in force when the war is closed. But if, like a legislative act, it confers actual rights on the slaves, whether they are able to secure them in fact or not, then those rights are not lost, though the law cease to exist. On the other hand, if it confers no actual rights on any who are beyond its reach,—if it is merely an offer of freedom to all who can come and receive it,—then those only who do receive it while the offer continues will have any rights by it when it has ceased to be in force.

The position of Mr. Adams on this subject seems to have been misunderstood. When his remarks in Congress are carefully examined, it will be found that he did not claim that the proclamation of a military commander would operate, like a statute, to confer the right of freedom upon all the slaves in an invaded country. But he asserted a general principle of international law,—that the commander of an invading army is not bound to recognize the municipal laws of the country,—that he may treat all as freemen, though some are slaves. And he claimed, that, in case of a servile war in this country, our army would have a right to suppress the insurrection by giving freedom to the insurgents. In regard to the effect of such a proclamation upon those not liberated by the military power, he expressed no opinion.

The precedents usually cited are not any more satisfactory. In Hayti, and in the South-American republics, emancipation became an established fact by the action of the civil power. In each case a proclamation by the military power was the initial step; but the consummation was attained by the fact that the same power afterwards became dominant in civil, as well as in military affairs.

Conceding, then, that the Proclamation is but a declaration of the war-policy, designed and adapted to secure a still higher end,—the preservation and perpetuity of our free institutions,—it is still claimed that the Government has the right to pursue this policy until Slavery is abolished, and forever prohibited, within all the Rebel States.

Though we speak of the Rebellion as an "insurrection," it has assumed such proportions that we are in a state of actual war. Nor does it make any difference that it is a civil war. It has just been decided by the Supreme Court of the United States, that we have the same rights against the people and States in rebellion, by the law of nations, that we should have against alien enemies. The property of non-combatants is liable to confiscation, as enemies' property; and it makes no difference that some of them are personally loyal. All the inhabitants of the Rebel States have the rights of enemies only. The recent cases of the Brilliant, Hiawatha, and Amy Warwick settle this beyond all question. There was some difference of opinion among the judges, but only on the question whether this condition preceded the Act of Congress of July, 1861,—a majority holding that it did, commencing with the proclamation of the blockade. So that it cannot be denied that we may treat the Rebel States as enemies, and adopt all measures against them which any belligerents engaged in a just war may adopt.

And no principle of the law of nations is more universally admitted than this,—that the party in the right, after the war is commenced, may continue to carry it on until the enemy shall submit to such terms as will be a sufficient indemnity for all the losses and expenses caused by it, and will prevent another war in the future. And to this end he may conquer and hold in subjection people and territory, until such terms are submitted to. And until then, the state of war continues. The right to impose such terms as will secure peace in the future is one of the fundamental principles of international law.

"Of the absolute international rights of States," says Mr. Wheaton, "one of the most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation. This right necessarily involves all other incidental rights which are essential as means to give effect to the principal end."

"The end of a just war," says Vattel, "is to avenge, or prevent, injury."

"If the safety of the State lies at stake, our precaution and foresight cannot be extended too far. Must we delay to arrest our ruin until it has become inevitable?"

"Where the end is lawful, he who has the right to pursue that end has, of course, a right to employ all the means necessary for its attainment."

"When the conqueror has totally subdued a nation, he undoubtedly may, in the first place, do himself justice respecting the object which had given rise to the war, and indemnify himself for the expenses and damages sustained by it; he may, according to the exigency of the case, subject the nation to punishment by way of example; and he may, _if prudence require it, render her incapable of doing mischief with the same ease in future_."

"Every nation," says Chancellor Kent, "has an undoubted right to provide for its own safety, and to take due precaution against distant, as well as impending danger."

Our rights as belligerents, therefore, are ample for our security in time to come. The Rebel States will not cease to be enemies by being defeated and exhausted and disabled from continuing active hostilities. They have invoked the laws of war, and they must abide the decision of the tribunal to which they have appealed. We may hold them as enemies until they submit to such reasonable terms of peace as we may demand. Whether we shall require any indemnity for the vast expenditures and losses to which we have been subjected is a question of great magnitude; but it is of little importance compared with that of guarding against a recurrence of the Rebellion, by removing the cause of it. It would be worse than madness to restore them to all their former rights under the government they have done their utmost to destroy, and at the same time permit them to retain a system that would surely involve us or our children in another struggle of the same kind.

Slavery and freedom cannot permanently coexist under the same government. There is an inevitable, perpetual, irrepressible conflict between them. The present rebellion is but the culmination of this conflict, long existing,—transferred from social and political life to the camp and the battle-field. In the new arena, we have all the rights of belligerents in an international war. Slavery has taken the sword; let it perish by the sword. If we spare it, its wickedness will be exceeded by our folly. As victors, the world concedes our right to demand, for our own future peace, as the only terms of restoration, not only the abolition of Slavery in all the Rebel States, but its prohibition in all coming time. It cannot be, that, with the terrible lessons of these passing years, we shall be so utterly destitute of wisdom and prudence as to leave our children exposed to the dangers of another rebellion, after entailing upon them the vast burdens of this, by our national debt.

It has been said, that, if Slavery should be abolished, the States could afterwards reestablish it. This is claimed, on the ground that every State may determine for itself the character of its own domestic institutions. The right to do so has been conceded to some of the new States.

But it should be remembered that this right has been, to establish Slavery by bringing in slaves from the old States,—not by taking citizens of the United States, and reducing them to slavery. If one such citizen can be enslaved, then can any other; and the very foundations of the Federal Government can be overturned by a State. For a government that cannot protect its own citizens from loss of citizenship by being chattellized is no government at all.

Citizenship is a reciprocal relation. The citizen owes allegiance; the government owes protection. When a person is naturalized, he takes the oath of allegiance. Does he got nothing in return? Can a State annul all the rights which the Federal Government has conferred? Then, indeed, would it be better for those who come to our shores to remain citizens of the old nations; for they could protect them, but we cannot. Then, to be a citizen of the United States—a privilege we had thought greater than that of Roman citizenship when that empire was in its glory—is a privilege which any State may annul at its pleasure!

The power and position of a nation depend upon the number, wealth, intelligence, and power of its citizens. And the nation, in order to employ and develop its resources, must have free scope for the use of its powers. No State has a right to block the path of the United States, or in any way to "retard, impede, or burden it, in the execution of its powers." For this reason, if a citizen is wealthy enough to lend money to the Federal Government, a State cannot tax his scrip to the amount of one cent. But, if the doctrine contended for by some is sound, then it may take the citizen himself, confiscate the whole of his property, blot out his citizenship, and make a chattel of him, and the Federal Government can afford him no protection! Among all the doctrines that Slavery has originated in this country, there is none more monstrous than this.

But this is not a question of any practical importance at this time. There is no danger that Slavery will ever be tolerated where it has been once abolished. It may go into new fields; it seldom returns to those from which it has been driven. The institutions of learning and religion that follow in the path of freedom, if they find a congenial soil, are not likely to be supplanted by the dark and noxious exotics of ignorance and barbarism.

And besides, as we have already seen, it is our right, as one of the conditions of restoration, to provide for the perpetual prohibition of Slavery within the Rebel States. This, like the Ordinance of 1787, will stand as an insurmountable barrier in all time to come. And the security it will afford will be even more certain. For, while there may be a difference of opinion in regard to the effect of a law of Congress relating to existing Territories, there is no doubt that conditions imposed at the time upon the admission of new States, or the restoration of the Rebel States, will be of perpetual obligation.

RIGHTS OF REBEL STATES

On this subject there are two theories, each of which has advocates among our most eminent statesmen.

By some it is claimed that the Rebels have lost all rights as citizens of States, and are in the condition of the inhabitants of unorganized territories belonging to the United States,—and that, having forfeited their rights, they can never be restored to their former position, except by the consent of the Federal Government. This consent may be given by admitting them as new States, or restoring them as old,—the Government having the right in either case to annex terms and conditions.

There are others who contend that the Rebel States, though in rebellion, have lost none of their rights as States,—that the moment they submit they may choose members of Congress and Presidential electors, and demand, and we must concede, the same position they formerly held. This theory has been partially recognized by the present Administration, but not to an extent that precludes the other from being adopted, if it is right.

If the people of the States which have seceded, as soon as they submit, have an absolute right to resume their former position in the Government, with their present constitutions upholding Slavery, it certainly will be a great, if not an insurmountable, obstacle to the adoption of those measures which may be necessary to secure our peace in the future. That they have no such right, it is believed may be made perfectly clear.

If we triumph, we shall have all the rights which, by the laws of nations, belong to conquerors in a just war. In a civil war, the rights of conquest may not be of the same nature as in a war between different nations; but that there are such rights in all wars has already been stated on the highest authority. If a province, having definite constitutional rights, revolts, and attempts to overthrow the power of the central government, it would be a strange doctrine, to claim, that, after being subdued, it had risked and lost nothing by the undertaking. No authority can be found to sustain such a proposition. A rebellion puts everything at risk. Any other doctrine would hold out encouragement to all wicked and rebellious spirits. If they revolt, they know that everything is staked upon the chances of success. Everything is lost by defeat. By the laws of war, long established among the nations,—laws which the Rebel States have themselves invoked,—if they fail, they will have no right to be restored, except upon such terms as our Government may prescribe. The right to make war, conferred by the Constitution, carries with it all the rights and powers incident to a war, necessary for its successful prosecution, and essential to prevent its recurrence.

But without resorting to the extraordinary powers incident to a state of war, the same conclusion, in regard to the effect of a rebellion by a State Government, results from the relations which the States sustain to the Federal Government. Though they cannot escape its jurisdiction, their position, as States, is one which may be forfeited and lost.

It has been objected that this doctrine is equivalent to a recognition of the right of Secession, because it concedes the power of any one State to withdraw from the Union. But the fallacy of this objection is easily demonstrated.

The Federal Government does not emanate from the States, but directly from the people. The relation between them is that of protection on the one hand and allegiance on the other. This relation cannot be dissolved by either party, unless by voluntary or compulsory expatriation. It subsists alike in States and Territories, not being dependent upon any local government. The Rebels claim the right to dissolve this relation, and to become free from and independent of the Federal Government, though retaining the same territory as before. We deny any such right, and hold, that, though they may forfeit their rights as a State, they are still bound by, and under the jurisdiction of, the Federal Government. This jurisdiction, though absolute in all places, is not the same in all.

In the District of Columbia, and in all unorganized territories, the jurisdiction of the Federal Government is exclusive in its extent, as well as in its nature. It must protect the inhabitants in all their rights,—for there is no other power to protect them. They owe allegiance to it, and to no other.

The inhabitants of the organized territories, though under the general jurisdiction of the Federal Government, are, to some extent, under the jurisdiction of the Territorial Governments. Each is bound to protect them in certain things; they are bound to support and obey each in certain things.

The people of a State are also under the absolute jurisdiction of the Federal Government in all matters embraced in the Constitution. They owe it unqualified allegiance and support in those things. But they are also, in some matters, under the jurisdiction of the State Government, and owe allegiance to that. There are many matters over which both have jurisdiction, and in which the citizens have a right to look to each, or both, for protection. The courts of each issue writs of habeas corpus, and give the citizens their liberty, unless there is legal cause for their custody or restraint.

Now, if a State Government forfeits all right to the allegiance and support of its citizens, they are not thereby absolved from their allegiance to the Federal Government. On the contrary, the jurisdiction of the Federal Government is thereby enlarged; for it is then the only Government which the citizens are bound to obey. Take, for illustration, the State of Arkansas. By seceding, the State Government forfeited all claim to the obedience of the citizens. The inhabitants no longer owe it any allegiance. If loyal, they will not obey it, except as compelled by force. But they still owe allegiance to the United States Government. And there being no other Government which they are bound to obey, they are in the same condition as before the State was admitted into the Union, or any Territorial Government was organized.

The same is true of South Carolina. For, though it was an independent State before the Constitution was adopted, its citizens voluntarily yielded up that position, and became subject to the Federal Government, claiming the privileges and assuming the liabilities of a higher citizenship. And if, by reason of its rebellion, their State Government has forfeited its claim upon them, and its right to rule over them, they owe no allegiance to any except the Government of the United States.

But it is argued by some, that a State, once admitted into the Union, cannot forfeit its rights as a State under the Constitution, because it cannot, as such, be guilty of treason; that the inhabitants may all be traitors, and the State Government secede, and engage in a war against the Republic, and yet retain all its rights intact.

A State, in the meaning of public law, has been defined to be a body of persons united together in one community, for the defence of their rights. They do not constitute a State until organized. If the organization ceases to exist, they are no longer a State. If the State organization becomes despotic, and the inhabitants overthrow it by a revolution, it then ceases to exist. The people are remitted to their original rights, and must organize a new State.

A State, as such, may be guilty of treason. Crimes may be committed by organized bodies of men. Corporations are often convicted, and punished by fines, or by a forfeiture of all corporate rights. And though we have no provision for putting a State on trial, it may, as a State, be guilty. Treason is defined by the Constitution to be "levying war against the United States." This is just what South Carolina, as a State, is doing. Not only the people, but the State Government, has revolted. The people owe it no allegiance. It is their duty, not to support, but to oppose it. The Federal Government owes it no recognition. It has the right to destroy and exterminate it. A State Government in rebellion has no rights under the Constitution. It is itself a rebellion, and must necessarily cease to exist when the rebellion is suppressed.

And when the State Government which has revolted shall be conquered and overthrown, there will then be no South Carolina in existence. If there were loyal people enough there, bond or free, to rise up and overthrow it, they would be no more bound to revive the old Constitution, with its tyrannical provisions, than were our fathers to return to the British Government. Such a revolution is inaugurated in that State, by loyal men, to overthrow the despotic power of the State Government. If the State Government had remained loyal, it might have called on the Federal Government. But by seceding it has justified the Federal Government in aiding or organizing a revolution against it, for its utter overthrow and extinction.

It is true, indeed, the idea prevails that there is still, somehow, a State of South Carolina, besides that which is in rebellion. But the State must exist in fact, or it has no existence. There is no such thing as a merely theoretical State, separate and different from the actual. The revolted States are the same States that were once loyal. And when some loyal citizens in each of them, with the aid of the Federal Government, have overthrown and destroyed them, the ground will be cleared for the formation of new States, or the reorganization of the old; and they may be admitted or restored, upon such conditions as may be deemed wise and prudent, to promote and secure the future peace and welfare of the whole country.

There is no evidence that loyal persons in the Rebel States claim or desire to uphold the existence of those States, under their present constitutions, with the system of Slavery. But if there are any such persons, their wishes are not to override the interests of the Republic. It is their misfortune to reside in States that have revolted; and all their losses, pecuniary and political, are chargeable to those States, and not to the Federal Government. If they are so blind as to suppose that their losses will be increased by emancipation, that, also, will be chargeable to the rebellion of those States. Their loyalty does not save those States from being treated as enemies; it does not prevent their own condition from being determined by that of their States. As it is well known, a portion of their property has been confiscated by an Act of Congress, on the ground that they are, in part, responsible for the rebellion of those States. The theory, therefore, that such loyal men constitute loyal States, still existing, in distinction from the States that have rebelled, is utterly groundless. On this point we cannot do better than quote from the opinion of the Supreme Court of the United States in a case already referred to, sustaining the belligerent legislation of Congress.

"In organizing this rebellion, they have acted as States, claiming to be sovereign over all persons and property within their respective limits, and claiming the right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new Confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary, marked by lines of bayonets, and which can be crossed only by force. South of this line is enemy's territory, because it is claimed and held in possession by an organized, hostile, and belligerent power. All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies."

It is not to be presumed that Congress will do anything unnecessarily to add to the misfortunes of loyal men in the South. On the contrary, all that is being done is more directly for their benefit than for that of any other class of men. The vast expenditure of treasure and blood in this war is for the purpose of protecting them first of all, and restoring to them the blessings of a good government. And if it shall be found practicable to indemnify them for all losses, whether by emancipation or otherwise, no one will object.

The object of this article is to prove that the Government possesses ample power, according to the law of nations, to suppress the Rebellion, and secure the country against the danger of another, by Emancipation, through the military power; that, though Emancipation is a policy, and not a law, the war may be prosecuted until this end is accomplished, and Slavery in future forever prohibited; that, by secession and rebellion, the revolted States have forfeited all right to the allegiance of their citizens, who are thereby remitted to the condition and rights of citizens solely of the United States; and that the Federal Government, as well under the Constitution as by right of conquest, may impose such terms upon the reorganization and restoration of those States as may be necessary to secure present safety, and avert danger in time to come. These views are presented in as brief and simple terms as possible, with the hope that they may be adopted by the people and by the Government. It is confidently believed, that, if the President and Congress will act in accordance with them, their acts will be fully sustained by the Supreme Court,—and that, the element and source of discord being at last entirely removed from the country, a career of peace and prosperity will then begin which shall be the admiration of the world.