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the arrests, the people de- rately justify or condemn, Courts and ConJudge Taney's

cided that he had acted for gress must do likewise as the constituted Opinion.

the good of the country, in organs of the people. Before the people, circumstances of danger which only extreme acting in unity and expressing a general senmeasures could avert. And this, we think, timent, even Courts and Congress must give will be his surest defense. Throwing aside the way; and if, in the Constitution, there clearly ifs and wherefores of legal tomeş, the people, existed the right of a State to secede, it is who are at once their own lawgivers and questionable if the exercise of that right would judges, by virtue of their Constitution-strike not have been forbidden by the popular will direct at the heart of wrongs; as they delibe- of the majority, whose pride of country and

patriotism would not consent to a division case of trespass q. c. by Martin Luther, a citizen of of the Union. Had the right of secession Massachusetts, against the defendants, citizens of been conceded by Congress, it must have Rhode Island, for breaking and entering the house been overruled by the people. In both cases of Luther on the 29th June, 1842, Mr. Chief Justice the ballot-box would have been the umpire, Taney said :

“ This case had arisen oat of the unfortunate political dif- and the “ American idea” would have found ferences' which agitated the people of Rhode Island in 1841 votes as powerful as bayonets in deciding and 1842. It is an action of trespass by the plaintiff in error

upon unity and the rights of the majority. It against defendants for breaking and entering plaintiff's house. The defendants justify upon the ground that large

was this “ tyranny" against which the South numbers of men were assembled in different parts of the State, protested; and the President, as the embodifor the purpose of overthrowing the Government by military ment of the popular will of the North, force, and were aclually levying war upon the State ; that in received the anathemas of all who acted order to defend itself from this insurrection, the State was declared by competent authority under martial law; that with or had sympathy for the secession plaintiff was engaged in the in urrection; and that the de- movement. fendants, being in the military service of the State, by com

The questions involved mand of their superior officer, broke and entered the house,

The Assumed Right and searched the rooms for the plaintif, who was supposed in and covered by the mat

of Coercion. to be there concealed, in order to arrest him, doing as little ters already submitted, damage as possible.

meet several of the propositions mentioned * * * “Unquestionably a State may use its military

on the previous page. power to put down an armed insurrection too strong to be

The right of coercion controlled by the civil authority. The power is essential to was measurably involved in the right to call the existence of every Government, essential to the preserva- out troops to suppress an insurrection, which tion of order and free iostitutions, and is as necessary to the States of this Union as to any other Government. The State

was covered by the Acts of 1795 and 1807. itself must determine what degree of force the crisis de. In the opinion of Attorney-General Black, mands. And if the Government of Rhode Island deemed the [cited on pages 66-69 of Vol. I,) the position armed opposition so formidable, and so ramified throughout taken was, that the military was subordinate the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which to the civil process, and could only be called this Court can question its authority. It was a state of war; into requisition to aid the courts in enforcing and the established Government resorted to the rights and the laws. It confessed, however, that, in case usages of war to maintain itself, and to overcome the unlaw. ful opposition. And in that state of things the officers en

the civil power itself should refuse to cogaged in its military service might lawfully arrest any one operate to execute the laws, Congress must who, from the information before them, they had reasonable then take such steps as were necessary and grounds to believe was engaged in the insurrection; and might order a house to be forcibly entered and searched, when there proper. It may be assumed that, what alwere rea oable grounds for supposing he might b' there con ready has been said of the popular right to

Without the power to do this, martial law and the meet great perils by original processes, also military array of the Government would be mere parade, and applies here. If the President did not find rather encourage attack than repel it. No more force, how. ever, can be used, than is necessary to accomplish the ob- direct or implied authority in the Constituject. And if the power is exercised for the purposes of option, or in the Acts of 1795 and 1807, for pression, or any injury willfully done to persons or property, calling out troops to suppress the rebellion, the party by whom, or by whose order it is committed, the people came to his justification. The enwould undoubtedly bo answerable," &c.

The President might simply appeal to this deci- dorsement and confirmation Congress gave sion for his justification. Thuse desiring to can- (by the Act of July, 1861) to each and all the vass the whole question should refer to this case. steps taken by the President, to meet the

cealed.

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BUTLER'S “CONTRABAND” DECISION.

191

on

Butler's “ Contraband” Decision.

dangers surrounding the country, were sim- It was the enigma of the Sphynx which no ply in response to the popular will.

Edipus could be found to solve, and thereRegarding the condition fore the Sphynx lived on. The Question of the

which the Slave population Slaves.

It fell to the lot of General Butler first to was to sustain in the con- deal with “ the inevitable negro” dilemma. test much and very diverse counsels prevailed. He was, of all men, the proper person to adThat the “ peculiar institution" was vitally minister upon the case, being, not only a involved was admitted, even by the most con- spund lawyer, but also a Democrat of the disservative of loyal men, from the first stages tinctively pro-Slavery school. He was the of the conflict; that it was fatally involved Breckenridge candidate in 1860, for the Exewas conceded by that class not until it be- cutive chair of Massachusetts. He had, for came apparent that all efforts to sustain it years, been noted as the enemy of runaway impaired the Federal cause by strengthening negroes and the friend of their masters. the hands of those hostile to it. The desire Hence, it was well to thrust upon him the reto propitiate the Border States, by taking no sponsibility of setting a precedent which action which would injure their interests might serve as such to other commanders and investments in Slave property, induced whose camps must become infested with nethe Executive and the several military chiefs, groes escaping from anxious masters, to pursue a course lacking in consistency and Colonel Mallory, living uniformity. Future writers may be able to the York Peninsula, sit in judgment on the early policy-or, ra- under a flag of truce, claimther, the want of it-in regard to the Slaves ; ed three fugitive slaves (May 25th) who had but, at this moment, when the conflict of sought refuge within the Federal lines to esopinion and feeling is still being waged upon cape being sold " to go South.” The Colonel the rights and wrongs of the several schemes had met the General in several Conventions, acted upon, it will be impossible to druw the had supped and drank with him; and, doubtlines of judgment with certainty.

less, presumed that he had but to ask and The question presented itself in this shape: receive the “ black rascals.” Butler heard as the Federal Government did not admit the rebel demand with the formality of a comthe right of secession, it therefore consider-mander. "You hold,” said the General, ed the Union unbroken. The Federal laws " that negroes are property.” “I do,” said were to be enforced, by force if necessary, in Mallory. “ You also hold that Virginia is no all sections of the Union. One of these laws longer a part of the United States ?” “I do." was the Fugitive Slave Act, by which 'every “Now," said Butler, "you are a lawyer, Colorunaway Slave must be returned, upon de- nel Mallory, and I want to know if you

claim mand, to his owner. Thus rebels, still being that the Fugitive Slave act of the United considered citizens of the Union, could de- States is binding in a foreign nation; and if mand back their Slaves should they escape a foreign nation uses this kind of property to the Federal camps, or to the loyal States. to destroy the lives and property of citizens And again: the non-recognition of the right of the United States, if that species of propof secession implied the recognition of the erty ought not to be regarded as contraband ?" status of the States. Their laws (local) were, The Colonel retired without the negroes; and hence, to be respected, so long as they were the country rejoiced over the construction not in contravention of the Constitution. that a negro was “contraband of war” when By these laws Slaves were restricted in rights the slave of a rebel master. aml privileges-were liable to arrest for run- What baseness as well as impudence ning away-were subject to flogging and must be charged upon those who, tramsale; and, being a local institution, Congress, pling the laws of the country under foot, under the Constitution, had no right to inter- still claimed the immunities and benefits of fere or to nullify.

those laws !

CHAPTER XVIL.

THE ATTITUDE

OF FOREIGN POWERS TOWARD THE UNITED STATES. BRITISH “NEUTRALITY" AND ENGLAND'S BASENESS. THE CANDID A VOWALS OF FRANCE,

Solicitude of the

North.

Solicitude of the

North

No slight solicitude was conspired to render them felt, in the North, for the intensely interested observ.

cause of the Union abroad. ers, and so powerfully apThe whole tenor of Mr. Seward's instruetions pealed to their selfishness as to render them, at to the newly appointed foreign Ministers to first, secretly, but at a later day, openly, solicitthe leading courts of Europe, shows how ous for the cause of the South. This solicitude keenly the Department of State appreciated was enhanced by the presence in Europe-and the importance of our foreign relations; and particularly in Great Britain and France-of the correspondence already quoted, (on pages "agents" of the Southern Confederacy, whose 186–87,] betrays with what decision the Sec- mission was to secure the desired recognition. retary met the apprehended danger of a re- Comprised of some of the ablest, as well as cognition of the Southern Confederacy by least scrupulous, men of the South, these European powers. He clearly enunciated agents were empowered to use extraordinary the proposition, that, to be thus friendly to means to secure their ends—even to granting the insurgents, was to incur the responsibili- exclusive trade with, and free entry to their ty of resentment on our part ; still, his ad- ports—thus using a powerful motor to move vice to our agents abroad all tended to avert the moneyed classes of the two Governments the calamity of any unfriendly issue with —to influence the cupidity of the English and other powers. It will be seen by reference the pride of the French. to the files of foreign affairs documents, for To counteract the machinations of these 1861, that the Secretary fully tasked his men was, as Mr. Seward wrote, the first and great ability as a lawyer, in order to lay be- chief object of the ministers—so much imfore each Government arguments against portance did he attach to the non-recognition its recognition of the Seceded States. For of the Southern Confederacy. His agents did England, for Spain, for France, for the not labor in vain, strengthened as they were Netherlands, for Russia, he had special pleas, by the co-operation of eminent American which reflect honorably on the Secretary's citizens abroad, and, eventually, by persons sagacity, and his patriotism.

especially dispatched as diplomatic visitors To France and England, the attention of to the several Courts.* the loyal States was chiefly directed, for of The attitude of the British Government bethem alone was danger apprehended. Their came anomalous and perplexing. The Projealousy of the greatness and rapidly en- clamation of the Queen “to enforce a strict hancing power of this country—their hopes neutrality," (see Appendix pages 474–76, for of seeing that power .broken by a divided this document at length,) at once gave the Union—their dependence on the slave pro- Southern States in rebellion the position of duct—the inimical spirit betrayed against the

* Archbishop Hughes was understood to have tariff upon their goods and stuffs to sustain been endowed with a semi-official mission ; as also the Federal Government, which tended to

were Mr. August Belmont and Mr. Thurlow Weed. strengthen the hands of their greatest com- General Scott's brief visit to France was not, as has petitors, the Northern manufacturers—all been stated, of a diplomatic nature.

ATTITUDE

OF

GREAT

BRITAIN.

193

Attitude of Great

Britain.

Attitude of Great

Britain.

belligerents, and recognized | blessing for whose consum-
them as co-equals, in this mation England should de-

respect, with the Federal voutly pray. In all this the . Government-thus at once lifting them from old dislike of Slavery found little utterance. the position of insurgents to that of a recog. The principle of anti-Slavery was not so nized power. The document, it will be per- active as the cupidity of capital, nor so subceived upon consultation, did this in a man- tly potent as the spirit which animated those ner calculated to inspire distrust of British who hoped for the humiliation of the Great good faith, since it made it a misdemeanor Republic. The Exeter Hall philanthropists for British subjects to enlist in, or in any became a shadow, while the Leeds, Manchesway to aid and abet, the cause of either party. ter and Tory coalition became a real presence.* As the Government of Great Britain, by treaty The few brave and honest souls who, like stipulation with the United States, forbade its John Bright, stood forth to vindicate the subjects to engage in any conspiracy against cause of the North from principle, were powthis Government, the Southern Confederates erless before the men of policy and the secret were, of course, debarred, by that treaty, enemies of republican institutions. the prospect of open sympathy. The baste The history of English Governmental polity also to debar the United States that aid, and of the English press, after March, 1861, though it was not wanted nor solicited, ar- and during 1862, if written by one familiar gued the abrogation of the spirit of that with the undercurrents of money and ambitreaty stipulation by giving to conspira- tion, would, if honestly written, form a curitors against the Union the same status grant- ous and most interesting chapter. A peoed to those struggling for the nation's life. plet allied to the Northern States of America Nor was this the worst feature of the document whose “neutrality" admitted Davis' let

* Professor Cairnes, in his volume on "The Attempt

to Explain the Real Issue involved in the American ters of marque to a belligerent's rights : in

Contest," “ The Northern people, conscious declaring the privateers to be pirates, President Lincoln by its construction, violated the looked abroad for sympathy, and especially looked

that it had risen above the level of ordinary motives, laws of nations and would be held responsible

to England. It was answered with cold criticism at the bar of Nations.

and derision. The response was perhaps natural Still further : it gave the insurrection- under the circumstances, but undoubtedly not more ists a party and made them a power in so than the bitter mortification and resentment Great Britain ; and, from the date of its pro- which that response evoked.” The learned and mulgation, there arose a powerful influence clear-minded professor of jurisprudence forgot to for the direct recognition of the Southern give due weight to the motives we have above asConfederacy. The interests of Cotton factors scribed, as having been most powerful in influencing and manufacturers represented many millions English“ opinion” and directing English conduct. of property and several hundred thousand The response to our claim for at least the sympathy

of a professedly anti-Slavery people in our war with operatives—all of which were paralyzed and

the Slave power was not " natural ;' it was unnatubrought to the door of ruin by the blockade. ral, under the circumstances. The future will not These interests ere long became almost a unit fail to characterize England's conduct towards the for recognition. Then the Iron interest, North as anomalous to a surprising degree. finding their usual trans-Atlantic market cut off by the operation of the Morrill tariff, and

† We say people-looking at the results instead of by the existing state of war, became willing tions ; but, as heretofore stated, (see Vol. I, page

the details-viewing the sum of opinions and acconverts to the Southern party. Lastly came

495,) we are convinced that the Queen of England the influence of the aristocracy as represented and that class who really form the base of the best by Lord Brougham, who, viewing in the class of her subjects, were truly desirous of the sucUnited States England's most powerful com- cess of the Union cause. In Prince Albert America petitor in the race for supremacy, looked lost a good friend—one whose sagacity and firmness upon a dissolution of the Union, and the as Queen's counsellor quite compensated for the formation of two rival confederacies, as a trickery of her Ministers of State.

" said :

Attitude of Great

Britain.

The Position of

France.

by consanguinity, by treaty, ' ters of the United States to
by social ties, by commerce, European courts, in which

by affinity of tastes and la- the following language was bor, by anti-Slavery and religious sympathy, used : to enter at once* and suddenly upon a crusade “ The reasons set forth in the President's Message of disparaging criticism, of fault-finding, of in- at the opening of the present session of Congress, vective, of misrepresentation, and, finally, of in support of his opinion that the States have no downright falsification—all to palliate the constitutional power to secede from the Union, are

still unanswered, and are believed to be unansweropenly expressed sympathy at length bestow

able. The grounds upon which they have attempted ed upon the cause of Slavery and to prepare to justify the revolutionary act of severing the bonds the way for the recognition of the Pro-Slav- which connect them with their sister States are reery Confederacy, certainly presents a spec- garded as wholly insufficient. This Government has tacle calculated to inspire a want of confi- not relinquished its jurisdiction within the Territory dence in human nature. Yet England (we of those States, and does not desire to do so. purposely omit Ireland and Scotland, for the “ It must be very evident that it is the right of Irish and Scotch people were steadfast in this Government to ask of all foreign powers that their hopes for the cause of the North) pre- the latter shall take no steps which may tend to ensented that anomaly ; and future writers on

courage the revolutionary movement of the Seceding

States, or increase the danger of disaffection in those the philosophy of history will find in her case significant data for new speculations in poli- that the Government of the Emperor will not do

which still remain loyal. The President feels assured tics and morals. The greatest of her intel- anything in these affairs inconsistent with the friendlects has been characterized as “the wisest and ship which this Government has always heretofore the meanest of mankind ;" it is now to be experienced from him and his ancestors. If the inproven that the aphorism should not at- dependence of the Confederated States' should be tach to her living controlling classes in acknowledged by the great powers of Europe, it stead of to a dead man.

would tend to disturb the friendly relations, diploThe position of France, matic and commercial, now existing between those from the earliest moment powers and the United States." of our difficulties, gave the

These instructions Mr. Faulkner immeFederal Government less concern than the diately laid before the French Emperor suspicious trimming and bracing of their Bri- through his Foreign Minister, M. Thouvenel, tish ally. Judge Black, Secretary of State and afterwards repeated them in person to in Mr. Buchanan's cabinet, had addressed a

Louis Napoleon. Writing to Mr. Black,* Circular (February 28th, 1861) to all minis- under date of March 19th, the American Min

ister said : * The press of England, with only one or two ex

“ I have no hesitation in expressing it as my opinceptions, was adverse to the principles and cause

ion, founded upon frequent general interviews with of the Secessionists, up to March, (see pages 492–95, the Emperor, although in no instance touching this Vol. I.] From the date of the establishment of the particular point, that France will act upon this deliblockade, when English commerce and manufac.

cate question when it shall be presented to her contures first began to experience the effects of the sideration in the spirit of a most friendly power; war, the change of opinion commenced; until, by that she will be the last of the great States of EuMarch, 1862, those journals which supported the

rope to give a hasty encouragement to the dismem. cause of the North were the exception! These berment of the Union, or to afford to the Governbonorable exceptions included the Daily News, the

ment of the United States, in the contingency to Morning Star, the Spectator, &c. Among those most

which you refer, any just cause of complaint. The vicious in their defamation of the North were the unhappy divisions which have afflicted our country Times, Herald, Review and Economist-- all organs of have attracted the Emperor's earnest attention since the aristocracy or of trade interests. The Times be

the first of January last, and he has never, but upon came exceedingly virulent and defamatory; but, its animosity seemed directed less toward the North * Not having then been officially informed of Mr. than toward the United States as a power, which it Black's retirement from office, the Minister of course sincerely desired to see humiliated and reduced to still addressed his letters to him as Secretary of a subordinate position in the family of nations. State.

The Position of

France.

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