use the property of the subject. It would seem strange if private property could not be so taken, while it is undeniable that in war the government can call into the military service of the country every able-bodied citizen, and tax his property to any extent.

REFERENCES TO THE CONSTITUTION, SHOWING THE WAR POWERS OF CONGRESS.

The preamble to the Constitution declares the objects for which it was framed, in the following words:

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The war powers of the legislative department are set forth chiefly in Art. I. Sect. 8 of the Constitution, which provides that

"The Congress shall have power,

1. "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States."

11. "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

12. "To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years." 13. "To provide and maintain a navy."

14. "To make rules for the government and regulation of the land and naval forces."

15. "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”

16. "To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respec

tively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

18. “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

SLAVE PROPERTY SUBJECT TO THE SAME LIABILITY AS OTHER PROPERTY TO BE APPROPRIATED FOR WAR PURPOSES.

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If the public welfare and common defence, in time of war, require that the claims of masters over their apprentices or slaves should be cancelled or abrogated, against their consent, and if a general law carrying into execu tion such abrogation, is, in the judgment of Congress, "a necessary and proper measure for accomplishing that object," there can be no question of the constitutional power and right of Congress to pass such a law.* The only doubt is in relation to the right to compensation. If it should be urged that to release slaves from their servitude would be, in effect, to impair or destroy the obligation of contracts, it may be replied that though states have no right to pass laws impairing the obligation of contracts, Congress is at liberty to pass such laws. The right to abrogate and cancel the obligations of apprentices and slaves does not rest solely upon the power of Congress to appropriate private property to public use; but it necessarily results from its obligation to use the proper means to accomplish one of the chief objects for which the Union was formed, namely, to provide for the common defence and general welfare of the United States in time of war.†

*Note to Forty-third Edition. This principle was sanctioned and acted upon by the Confederate Congress in their Stat. February 17, 1864, Chap. 79, which authorized the seizure and impressment into their army of free negroes and slaves.

† See Note on "Compensation to Slave-masters,” p. 405.

IMPORTANCE AND DANGER OF THESE POWERS.

The powers conveyed in the 18th clause of Art. I., Sect. 8, are of vast importance and extent. It may be said that they are, in one sense, unlimited and discretionary. They are more than imperial. But it was intended by the framers of the constitution. or, what is of more importance, by the people who made and adopted it, that the powers of government in dealing with civil rights in time of peace, should be defined and limited; but the powers "to provide for the general welfare and the common defence" in time of war, should be unlimited. It is true that such powers may be temporarily abused; but the remedy is always in the hands of the people, who can unmake laws and select new representatives and senators.

POWERS OF THE PRESIDENT NOT IN CONFLICT WITH THOSE OF

CONGRESS.

It is not necessary here to define the extent to which congressional legislation may justly control and regulate the conduct of the army and navy in service; or to point out the dividing line between civil and martial law. But the power of Congress to pass laws on the subjects expressly placed in its charge by the terms of the constitution cannot be taken away from it by reason of the fact that the President, as commander-inchief of the army and navy, also has powers, equally constitutional, to act upon the same subject-matters. It does not follow that because Congress has a right to abrogate the claims of Mormons or slaveholders, the President, as commander, may not also do the same thing. These powers are not inconsistent, or conflicting. Congress may pass laws concerning captures on land and on the water. If slaves are captured, and are treated

as "captured property," Congress should determine what is to be done with them;* and it will be the President's duty to see that these as well as other laws of the United States are executed.

CONGRESS HAS POWER UNDER THE CONSTITUTION TO ABOLISH SLAVERY.

Whenever, in the judgment of Congress, the common defence and public welfare, in time of war, require the removal of the condition of slavery, it is within the scope of its constitutional authority to pass laws for that purpose.+

If such laws are deemed to take private property for public use, or to destroy private property for public benefit, as has been shown, that may be done under the constitution, by providing just compensation; otherwise, no compensation can be required. It has been so long the habit of those who engage in public life to disclaim any intention to interfere with slavery in the States, that they have of late become accustomed to deny the right of Congress to do so. But the constitu tion contains no clause or sentence prohibiting the exercise by Congress of the plenary power of abrogating involuntary servi tude. The only prohibition contained in that instrument relating to persons held to labor and service, is in Art. IV, which provides that, "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation "therein," be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due." Thus, if a slave or appren

* Constitution, Art. I. Sect. 8, Cl. 11.

↑ Note to Forty-third Edition.· This has been done by a series of acts, and consummated by constitutional amendments. See Note on " Slavery," p. 393.

tice, owing service to his employer in Maryland, escapes to New York, the legislature of New York cannot, by any law or regulation, legally discharge such apprentice or slave from his liability to his employer. This restriction is, in express terms, applicable only to State legislatures, and not to Congress.

Many powers given to Congress are denied to the States; and there are obvious reasons why the supreme government alone should exercise so important a right. That a power is withdrawn from the States, indicates, by fair implication, that it belongs to the United States, unless expressly prohibited, if it is embraced within the scope of powers necessary to the safety and preservation of the government, in peace or in civil war.

It will be remarked that the provision as to slaves in the constitution relates only to fugitives from labor escaping from one state into another; not to the status or condition of slaves in any of the states where they are held, while another clause in the constitution relates to fugitives from justice. Neither clause has any application to citizens or persons who are not fugitives. And it would be a singular species of reasoning to conclude that, because the constitution prescribed certain rules of conduct towards persons escaping from one State into another, therefore there is no power to make rules relating to other persons who do not escape from one State into another. If Congress were expressly empowered to pass laws relating to persons when escaping from justice or labor by fleeing from their own States, it would be absurd to infer that there could be no power to pass laws relating to these same persons when staying at home. The govern

* Constitution, Art. IV. Sect. 2.