CHAPTER V.

The Emancipation Proclamation as a War Measure-Consideration of the Rights of a Belligerent over the Slaves of Citizens of an Invaded Nation regarding them as Property-The same Rights regarding them as occupying a Peculiar Status under the Local Law-The Owner's Rights after the Restoration of Peace-Reasons why the Emancipation Proclamation exceeds the Rights of a Belligerent, and manifests a Revolutionary Intention on the part of our Government.

IN treating of the emancipation proclamation, (including in that term the two proclamations of the President, dated respectively the 22d of September, 1862, and the 1st of January, 1863,) I shall not deny that martial law sanctions the suspension, within an invaded country, of the relation of master and slave, by the military edict of the commander-in-chief of the invader's armies, or in fact of any general having a separate command. And I shall also concede that a military commander can lawfully remove any number of slaves from the territory of an invaded nation whose laws sanction the institution of slavery, and thus enable them permanently to acquire their freedom. But I condemn the emancipation proclamation as going far beyond those limits, and manifesting a purpose on the part

of the general Government to overthrow the rights nd sovereignty of the States, and to inaugurate a system of coercion of State action, revolutionary and unlawful, and in its ultimate effects fatal to the permanent pacification of the country.

This measure has become such a shibboleth of party, and its discussion, even in grave state papers, and official and semi-official documents and speeches of the highest functionaries, has involved to such an extent the consideration of the institution of slavery in its religious, moral and politico-economical aspects, that it is exceedingly difficult to divest the question of those features sufficiently to consider exclusively its lawfulness as a military measure and the line of policy which is indicated by it. Nevertheless I will make the attempt to treat it in that aspect, asking from my readers no other admission respecting the institution of slavery itself, than that the Constitution grants to the Federal Government no right whatever to interfere with it, in the States where it exists, and that consequently its abolition by Federal power, if lawful at all, is only lawful as an exercise of the war power, the extent and nature of which are not defined by the Constitution, but are left to be gathered from the general rules of international law, so far as the latter are applicable to a contest of this nature. Upon this common ground I can meet nine-tenths of my fellowcitizens, the President included; the remainder

belong to that class upon whom argument is wasted.

Since the decision of the Supreme Court in the prize cases, it may be deemed settled law with us, that the Government may, notwithstanding its claim of sovereignty over the insurgents and their territory under the provisions of the Constitution, exercise in the course of the war, and while it lasts, all the belligerent rights to which it could lay claim in case of a war between it and a foreign power or in other words that belligerent rights are temporarily substituted for the constitutional rights which the war is waged to reëstablish. Therefore whenever the Government lays claim to exercise during the war any particular power not conceded to it by the Constitution, it can justify itself in so doing, provided it can show a warrant for the exercise of that power in the rules of international law touching the rights of belligerents.

Those rights with respect to property real and personal, situated in a country invaded and occupied by a hostile army, are now well settled and defined. So far as they relate to private property and to the present subject, they are, in general, that private property must be respected, but the belligerent may take and use what may be needed by the invading army, and may destroy, retain or carry away whatever may be useful to his enemy for military purposes, with compensation to the owners

in certain cases and without compensation in others.

What then are the rights of a belligerent over slaves, regarding the latter simply as the private property of the subjects of the enemy? They are the same (subject to the laws of humanity) which he has over the horses and cattle found in the invaded country—that is, a right to take and use them himself in any way consistent with the objects of the invasion; and not forbidden by the rules of international law, or to adopt any means, within the same limits, to prevent their increasing the military efficiency of the enemy. Therefore, if the law of humanity did not forbid such barbarity, a belligerent might, if he saw fit, in order to weaken his enemy, destroy that species of property by the actual killing of the slaves, and he may, without violation of any recognized principle, carry it away with him, by transporting the slaves out of the country; or he may keep it from the use of the owners, either directly, by retaining the slaves in his own possession, or indirectly, by simply declaring them free for the time being and protecting them against their master's claims.

Such are unquestionably the rights of a bellige rent over slaves, considered merely as personal property, but the owner's rights to the same kind of property after the return of peace are equally

well defined by the law of nations. If provision is made respecting his title by the treaty of peace, of course no question will arise. And if the property has been actually and physically destroyed by the invader, there is no redress, and the owner must bear the loss, unless his own government remunerates him. The same result ensues if the invading army has carried the property to its own country. But on the other hand it is equally clear that if the property has been left behind by the invading army, it reverts at once to the possession and ownership of the person from whom it was originally taken. Martial law being ended, the civil law, temporarily interrupted, resumes its sway, and restores all rights of property to the "status quo ante bellum." No writer upon international or military law has ever advanced the proposition that a military edict can accomplish a constructive destruction of property, which remains physically intact, after martial law has ceased to operate. Regarding the slave therefore in the light of property, the United States, in the exercise of martial law can do nothing but suspend the master's power over him till the termination of hostilities, and when the sway of the civil law returns, the right and the ownership of the master will return with it.

But in treating a subject of this kind, we must also consider the slaves as persons occupying a peculiar status under the local law. This is the