CHAPTER III.

WAR POWER OF THE PRESIDENT TO EMANCIPATE SI AVES.

THE power of the President, as commander-in-chief of the army and navy of the United States, when in actual service, to emancipate the slaves of any belligerent section of the country, if such a measure becomes necessary to save the government from destruc. tion, is not, it is presumed, denied by any respectable authority.*

WHY THE POWER EXISTS.

The liberation of slaves is looked upon as a means of embarrassing or weakening the enemy, or of strengthening the military power of our army. If slaves be treated as contraband of war, on the ground that they may be used by their masters to aid in prosecuting war, as employees upon military works, or as laborers furnishing by their industry the means of carrying on hostilities; or if they be treated as, in law, belligerents, following the legal condition of their owners; or if they be deemed loyal subjects having a just claim upon the government to be released from their obligations to give aid and service to disloyal and belligerent masters, in order that they may be free to perform their higher duty of allegiance and loyalty to the United States; or if they be regarded as subjects

It has been shown in a previous chapter that the government has a right to treat rebels either as belligerents or as subjects, and to subject them to the severities of international belligerent law.

of the United States, liable to do military duty; or if they be made citizens of the United States, and soldiers; or if the authority of the masters over their slaves is the means of aiding and comforting the enemy, or of throwing impediments in the way of the government, or depriving it of such aid and assistance in successful prosecution of the war, as slaves would and could afford, if released from the control of the enemy,— or if releasing the slaves would embarrass the enemy, and make it more difficult for them to collect and maintain large armies; in either of these cases, the taking away of these slaves from the "aid and service" of the enemy, and putting them to the aid and service of the United States, is justifiable as an act of war. The ordinary way of depriving the enemy of slaves is by declaring emancipation.

THE PRESIDENT IS THE SOLE JUDGE.

"It belongs exclusively to the President to judge when the exigency arises in which he has authority, under the constitution, to call forth the militia, and his decision is conclusive on all other persons." *

The constitution confers on the Executive, when in actual war, full belligerent powers. The emancipation of enemy's slaves is a belligerent right. It belongs exclusively to the President, as commander-in-chief, to judge whether he shall exercise his belligerent right to emancipate slaves in those parts of the country which are in rebellion. If exercised in fact, and while the war lasts, his act of emancipation is conclusive and

Such is the language of Chief Justice Taney, in delivering the opinion of the Supreme Court, in Martin v. Mott, 12 Wheaton, 19.

binding forever on all the departments of government, and on all persons whatsoever.

POWERS OF THE PRESIDENT NOT INCONSISTENT WITH POWERS OF CONGRESS TO EMANCIPATE SLAVES.

The right of the Executive to strike this blow against his enemy does not deprive Congress of the concur rent right or duty to emancipate enemy's slaves, if in their judgment a civil act for that purpose is required by public welfare and common defence, for the purpose of aiding and giving effect to such war measures as the commander-in-chief may adopt.

The military authority of the President is not incompatible with the peace or war powers of Congress; but both coexist, and may be exercised upon the same subject. Thus, when the army captures a regiment of soldiers, the legislature may pass laws relating to the captives. So may Congress destroy slavery by abolishing the laws which sustain it, while the commander of the army may destroy it by capture of slaves, by proclamation, or by other means.

IS LIBERATION OF ENEMY'S SLAVES A BELLIGERENT RIGHT?

This is the chief inquiry on this branch of the subject. To answer it we must appeal to the law of nations, and learn whether there is any commanding authority which forbids the use of an engine so powerful and so formidable. — an engine which may grind to powder the disloyalty of rebels in arms, while it clears the avenue to freedom for four millions of Americans. It is only the law of nations that can decide this question, because the constitution, having given authority to government to make war, has placed no limit what

ever to the war powers. There is, therefore, no legal control over the war powers except the law of nations, and no moral control except the usage of modern civilized belligerents.

THE LAW OF NATIONS SANCTIONS EMANCIPATION OF ENEMY'S SLAVES.

It is in accordance with the law of nations and with the practice of civilized belligerents in modern times, to liberate enemy's slaves in time of war by military power. In the revolutionary war, England exercised that unquestioned right by not less than three of her military commanders - Sir Henry Clinton, Lord Dunmore, and Lord Cornwallis. That General Washington recognized and feared Lord Dunmore's appeal to the slaves, is shown by his letter on that subject.

"His strength," said Washington, "will increase as a snow-ball by rolling faster and faster, if some expedient cannot be hit upon to convince the slaves and servants of the impotency of his designs."

The right to call the slaves of colonists to the aid of the British arms was expressly admitted by Jefferson, in his letter to Dr. Gordon. In writing of the injury done to his estates by Cornwallis, he uses the following language:

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"He destroyed all my growing crops and tobacco; he burned all my barns, containing the same articles of last year. Having first taken what corn he wanted, he used, as was to be expected, all my stock of cattle, sheep, and hogs, for the sustenance of his army, and carried off all the horses capable of service. He carried off also about thirty slaves. Had this been to give them freedom, he would have done right. . . . From an estimate made at the time on the best information I could collect, I suppose the State of Virginia lost under Lord Cornwallis's hands, that year, about thirty thousand slaves."

Great Britain, for the second time, used the same right against us in the war of 1812. Her naval and military commanders invited the slaves, by public proclamations, to repair to their standard, promising them freedom. The slaves who went over to them were liberated, and were carried away contrary to the express terms of the treaty of Ghent, in which it was stipulated that they should not be carried away. England preferred to become liable for a breach of the treaty rather than to break faith with the fugitives. Indemnity for this violation of contract was demanded and refused. The question was referred to the decision of the Emperor of Russia, as arbitrator, who decided that indemnity should be paid by Great Britain, not because she had violated the law of nations in emancipating slaves, but because she had broken the terms of the treaty.

In the arguments submitted to the referee, the British government broadly asserted the belligerent right of liberating enemy's slaves, even if they were treated as private property. Mr. Middleton was instructed by Mr. J. Q. Adams, then, in 1820, Secretary of State, to deny that right, and to present reasons for that denial. But that in this instance he acted in obedience to the instructions of the President and cabinet, and against his own opinions on the law of nations, is shown by his subsequent statement in Congress to that effect. The question of international law was left undecided by the Emperor; but the assertion of England, that it is a

• For Admiral Cochrane's Proclamation, instigating the slaves to desert their masters, see Niles's Register, vol. vi. p. 242.

"It was utterly against my judgment and wishes; but I was obliged to submit, and prepared the requisite despatches." See Congressional Globe, XXVII. Cong., 2d sess., 1841-2; vol. ii. p. 424.