holding such a provision now to be implied Constitutional law, I have no objection to its being made express and irrevocable."

I have already in this volume detailed the action of the military leaders early in the war, in regard to slavery. They were very slow, as we have seen, to assert belligerent rights against the slaveholders. For a time they would not permit any interference with slaves or slavery; and the strange, almost incredible spectacle was presented, of the Nation's attempting to carry on war against the slaveholding Confederacy, refusing to accept the loyal services of a very considerable portion of the people of the Confederacy because they were black, and for a time, many officers of the army, not only refused to accept such service, but actually used the Federal army to return loyal men to the rebel authorities, to be used in strengthening the power of the insurgents.

After actual war had been commenced by the insurgents, after the Confederate Government had been established, Mr. Seward, Secretary of State, on the 10th of April, 1861, thus writes to Charles F. Adams, our Minister to England: *

"For these reasons he (the President) would not be disposed to reject a cardinal dogma of theirs (the secessionists), namely: that the Federal Government could not reduce the seceding States to obedience by conquest, even though he were disposed to question that proposition. But in fact the President willingly adopts it as true. Only an imperial or despotic Government could subjugate thoroughly disaffected and insurrectionary members of the State. This Federal Republican system is, of all forms of Government, the very one which is most unfitted for such a labor. Happily, however, this is only an imaginary defect. The system has within itself adequate, peaceful, and recuperative forces. Firmness on the part of the Government in maintaining and preserving the public institutions and property, and in executing the laws where authority can be exercised without waging war, combined with such measures of justice, moderation and forbearance as will disarm reasoning opposition, will be sufficient to secure the public safety, until returning reflection, concurring with the fearful experience of social evils, the inevitable fruits of faction, shall bring the recreant members cheerfully back into the family, which, after all, must prove their best and

* Diplomatic Correspondence of 1861.

happiest, as it undeniably is, their most natural home. The Constitution of the United States provides for that return, by authorizing Congress, on application to be made by a certain majority of States, to assemble a National Convention, in which the organic law can, if needful, be revised so as to remove all real obstacles to a reunion so suitable to the habits of the people, and so eminently conducive to the common safety and welfare. Keeping that remedy steadily in view, the Presi dent, on one hand, will not suffer the Federal authority to fall into abeyance; nor will he, on the other, aggravate existing evils by attempts at coercion, which must assume the form of direct war against any of the revolutionary States. If, while he is pursuing this course, commended as it is by prudence and by patriotism, the scourge of civil war, for the first time in our history, must fall upon our country during the term of his administration, that calamity will then have come, through the agency, not of the Government, but of those who shall have chosen to be its armed, open, and irreconcilable enemies; and he will not suffer himself to doubt that, when the value of the imperilled Union shall be brought in that fearful manner home to the business and bosoms of the American people, they will, with an unanimity that shall vindicate their wisdom and their virtue, rise up and save it."

The Secretary of State writes to Mr. Adams, February 17th, 1862, as follows:

"To proclaim the crusade (against slavery) is unnecessary; and it would even be inexpedient, because it would deprive us of the needful and legitimate support of the friends of the Union who are opposed to slavery, but who prefer union with slavery, to disunion without slavery. Does France or does Great Britain want to see a social revolution here, with all its horrors, like the slave revolution in St. Domingo? Are these powers sure that the country, or the world, is ripe for such a rev · olution, so that it must certainly be successful? What if, in inaugurating such a revolution, slavery, protesting against ferocity and inhumanity, should prove the victor?" *

It is a fact worthy of note, that Mr. Seward, early in 1862, deprecating emancipation as "a crusade" against slavery, asks: "Does France or does Great Britain want to see a social revolution here, with all its horrors, like the slave revolution of St. Domingo." Emancipation came, through President Lincoln, within less than a year from the date of Mr. Seward's letter, but to the credit of the long-abused negro race, let it be remembered, that it produced no “horrors," no outrages upon the part of the freedmen, upon their late masters. Mr. Lincoln, in proclaiming emancipation, had enjoined "upon the people so declared free, to abstain from all violence (see p. 299) except in self-defense." This admonition of their benefactor they have scrupulously observed. Compare the conduct of the two classes, the

Mr. Seward writes to Mr. Adams, July 5th, 1862:

*

"It is a satisfaction to know that a copy of my dispatch 260, has been received and read to Earl Russell. The subject it presents is one of momentous import. It seems as if the extreme advocates of African slavery and its most vehement opponents were acting in concert together to precipitate a servile war-the former by making the most desperate attempts to overthrow the Federal Union; the latter by demanding an edict of universal emancipation as a lawful and necessary, if not, as they say, the only legitimate way of saving the Union."

Mr. Seward, writing to Mr. Adams on a previous occasion, says:

"The rights of the States, and the condition of every human being in them, will remain precisely the same, whether the revolution shall succeed or whether it shall fail. In one case the States would be federally connected with the new Confederacy; in the other, they would, as now, be members of the United States, but their constitutions and laws, customs, habits and institutions in either case will remain the same.”

The People's Convention, which met in Fanueil Hall, Boston, in October, 1862, and which contained among its members, Joel Parker, Professor of Law at Cambridge, and B. F. Thomas, an ex-judge of the Supreme Court of Massachusetts, passed the following resolutions:

"Resolved, That we deeply regret that the President of the United States at this time, forgetful of his obligations to the whole country as the constitutional head of the Government, and yielding to unwise counsels, should have declared in his Proclamation of September 22d, 1862, his determination to adopt hereafter, in the prosecution of our deplo rable civil war, the policy of a party which the House of Representatives, by the resolutions of February 11th, 1861, unanimously declared to be too insignificant in numbers and influence to excite the serious attention or alarm of any portion of the people of the Republic.

"Resolved, That in the name of civilized humanity, we respectfully but earnestly protest against the Emancipation Proclamation of the

freedmen and their rebel masters, towards each other since the day of the emancipation of the former; and which has been guilty of the most violence, the greater number of outrages, and "horrors?” Let Memphis and New Orleans

answer.

*Diplomatic Correspondence, Part 1, p. 121. By the time this dispatch reached Mr. Adams, Mr. Lincoln had written the Proclamation of Emancipation.

President of the United States, both on the ground of its UNCONSTITUTIONALITY and inexpediency.” *

In a publication issued in November, 1862, one of the exjudges of the Supreme Court of the United States, B. R. Curtis, denied that the President of the United States had the power, under the Constitution, to emancipate the slaves in the rebellious States. He denied the right of the Commander-in-Chief of our army to make military arrests, except within the lines of his military operations in the field. He held that the local laws of the rebel States, which regulated their domestic relations, were still valid as against the military power of the United States, even after the inhabitants of such States had become public enemies, and, therefore, that they were not superseded by the laws of war. He denied that offences not declared as such by statutes of the United States, could be lawfully punished in time of war by military or other tribunals, thus repudiating the operation of the laws of war in the insurgent States as applicable to a time of actual hostilities. He denied the right of the President to suspend the writ of Habeas Corpus, or to extend martial law over the country in time of war.

The Monthly Law Reporter, the leading law journal of New England, published in June, 1862, an article denying the right of Congress to pass laws to confiscate the property, or to emancipate the slaves of the public enemy, (Vol. XXIV., No. VIII.,) and asserted the doctrine that in the punishment of treason only, the life estate of the traitor could be taken from him.

The article asserted "that when a Government is no longer able to protect its citizens, it has no right to demand that they should obey its laws." It took the ground that "Congress should not legislate, during the rebellion, in such manner as to bind those persons who were within the district from which our authority was excluded by the rebels." "The sound constitutional principle," says this learned journal, "which is the result of the authorities, seems to be this: where a usurping power has seized upon

*These and similar resolutions, adopted by very worthy and distinguished citizens, ought to silence those who charge Mr. Lincoln with being slow in issuing the Emancipation Proclamation.

the Government and excluded the rightful authority from the exercise of its functions, it may claim the obedience of the district throughout which its power extends. If, in obedience to the command of this power, the inhabitants take up arms against their lawful sovereign, they are not liable to the pains and penalties of treason. The power which actually governs may be safely served in arms by those whom it protects." It also asserted that, unless in exceptional cases, it was settled law "that the private property of enemy's subjects upon land is not liable to seizure; and that even the right of conquest includes the confiscation of the public property only of the conquered State;" and that there was no distinction to be taken between a rebellion and a public war in the application of this rule. "Hence it is apparent," says this journal," that by the rules which govern the relations of belligerents to each other, the confiscation of the real property of the rebels is impossible." The military power to emancipate slaves was also denied.

It seems to have been the deliberate opinion of President Buchanan, and of most of his original Cabinet, that while the States had no right to secede, yet it would be a violation of the Constitution to prevent secession by coercion.

The advocates of extreme State rights, under the lead of Calhoun, had, in 1833, claimed the right of nullification, but this claim was so completely overthrown by Webster in his great speeches in reply to Hayne and Calhoun, and was so emphatically repudiated by President Jackson, Edward Livingston, and the leading statesmen of that day, that it for a while had found little encouragement.* As the Government had passed more and more into the hands of slaveholders, we have seen to what an alarming extent it had been sanctioned throughout the country.

It is known that General Jackson always regretted that he did not cause the arrest, trial, and if convicted, execution of Calhoun. I have information, upon which I am authorized to state that Henry Clay, who introduced, and by his personal influence and eloquence, carried through the Compromise Tariff of 1833, in after years expressed regret that he had done so. He expressed the opinion that it would have been better for the country, if the issue had been left to be decided between the National Government and the authorities of South Carolina-between President Jackson and Calhoun. This opinion of Mr. Clay, expressed some years before the slaveholders' rebellion, has often been repeated during the war-many believing that the conviction and sentence of Calhoun, as a traitor, might have saved the Republic from the late rebellion.