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MR. SEWARD'S CIRCULAR TO THE GOVERNORS.

The President's

Defense.

52; 1 Curtis' C. C. R., 308; 4 Whea. 259; 9 How. W. S. R., 603; 13 Ib., 115; 16

Ib., 164; Gardner's Institutes, 33, 35, 78, 208, 600-680.) These powers, it is true, are exceptional in their exercise: but that they are powers conferred admit of little doubt. [See page 118]. If there is, or was, a question of propriety in their assumption, the decision for or against the Executive must turn upon the fact whether or not the public safety and preservation of the country necessitated the course pursued. Upon that point there was, at the time, no dissent among those loyal men who sought to crush revolution, and to punish its abettors.

Disloyal men, in arms against the Constitution and laws, were loud in their assaults upon the President for "usurping" unconstitutional powers; and their friends in the North were their echoes-for what reason it is scarcely necessary to inquire, when the proclivity for office and place of a large class of men is considered. Such men, it was to be presumed as a matter of course, would seize upon any issue which promised to give them a party and to restore their lost commissions. In answer to those who may assume, with those of the opposition, that the President arrogated extra Constitutional powers, we may quote from an eminent authority the general view entertained by the friends of the Administration :

"The President's powers are both discretionary and supreme. No Court or Judge can review his martial acts or his decisions in war. Impeachment is the remedy, if he intentionally and wrongfully exercises powers. No action or habeas corpus can lie or be employed against the President or his officers to examine, defeat, or control this high constitutional and beneficent authority. (Ib.; 11 How., 272, 284; 4 Whea., 634. Gardner Inst., 274, 275, 364.) The military power of the Commander-in-Chief, by the Constitution, has no limit but the necessities of a foreign or civil war. and of these he and his commanders are the sole judges. (lb.) Hence, all persons and things having relation to such war, or to its successful prosecution, are subject to the President's martial control. He can declare martial law in any city or place, though a general suspension of the habeas corpus in a State may perhaps require an act of Congress. He may stop all intercourse by sea or by land, by mails, by express or otherwise.

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The President's Defense.

365

He may stop or arrest presses or persons giving information, or aid, or comfort, to such domestic or foreign enemy. He may arrest, try by

conrt-martial and punish all persons aiding an arm

ed foreign or domestic foe in any manner, such judgment being approved by Congress."

This view is that under which the Presi

dent acted, and upon which he must rely for his defense. The several acts of Congress confirming his action or anticipating it by special legislation, all will be used as collateral, and, in many respects, conclusive evidence in his justification; and he who at tempts to make out a case against the Executive must meet the legislation of Congress as well as the questions of Constitutional prerogatives and construction.

The Northern communi

Fears of Foreign Intervention.

ty was excited, during the summer and fall of 1861, on the bugbear of a foreign intervention. To the timid it was a source of exceeding fear

to the disloyal a source of hope. It came in time to inspire the Confederates with renewed enthusiasm in their cause: it seemed to them that their independence was secure if a recognition should be made. To expedite matters their most powerful champions were sent abroad, with extraordinary powers to those two courts, which, in the 19th century, have presumed to exercise a paternal authority over all the nations of Earth. To provide against it, and to show those thrones in what spirit any interference in our affairs would be received, the circular addressed by, Mr. Seward to the Governors of each of the Seabord and Lake States may be cited. It

was:

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"DEPARTMENT OF STATE, Washington, October 14th, 1861. [ "TO HIS EXCELLENCY, THE GOVERNOR, &c.: "Sir: The present insurrection had not even revealed itself in arms when disloyal citizens haste ned to foreign countries to invoke their intervention for the overthrow of the Government and the destruction of the Federal Union. These agents are known to have made their appeals to some of the more important States without success. It is not likely, however, that they will remain content with such refusals. Indeed, it is understood that they are industriously endeavoring to accomplish their disloyal purposes by degrees and by indirection. Taking advantage of the embarrassments of agriculture,

Mr. Seward's Circular

to the Governors.

manufacture and commerce in foreign countries, resulting from the insurrection they have inaugurated at home, they seek to involve our common country in controversies with States with which every public interest and every interest of mankind require that it shall remain in relations of peace, amity and friendship. I am able to state for your satisfaction that the prospect for any such disturbauce is now less serious than it has been at any previous period during the course of the insurrection. It is, nevertheless, necessary now, as it has hitherto been, to take every precaution that is possible to avoid the evils of foreign war, to be superinduced upon those of civil commotion which we are endeavoring to cure.

“One of the most obvious of such precautions is that our ports and harbors on the seas and lakes should be put in a condition of complete defense, for any nation may be said to voluntarily incur dan ger in tempestuous seasons when it fails to show that it has sheltered itself on every side from which the storm might possibly come.

"The measures which the Executive can adopt in the emergency are such only as Congress has sanctioned, and for which it has provided.

"The President is putting forth the most diligent efforts to execute those measures, and we have the great satisfaction of seeing that these efforts are seconded by the favor, aid and support of a loyal, patriotic and self-sacrificing people, who are rapidly bringing the military and naval force of the United States into the highest state of efficiency. But, Congress was chiefly absorbed, during its recent extra session, with those measures, and did not provide as amply as could be wished for the fortification of our sea and lake coasts. In previous wars the loyal States have applied themselves by independent and separate activity to the support and aid of the Federal Government in its arduous responsibilities. The same disposition has been manifested in a degree eminently honorable by all the loyal States during the present insurrection.

"In view of this fact, and relying upon the increase and continuance of the same disposition on the part of the loyal States, the President has directed me to invite your consideration to the subject of the improvement and perfection of the defenses of the State over which you preside, and to ask you to submit the subject to the consideration of the Legislature when it shall have assembled. Such proceedings by the State would require only a temporary use of its means.

"The expenditures ought to be made the subject of conference with the Federal Government. Being thus made, with the concurrence of the Government,

for general defense, there is
Mr. Seward's Circular
every reason to believe that
to the Governors.
Congress would sanction what
the State should do, and would provide for its reim-
bursement.

"Should these suggestions be accepted, the President will direct the proper agents of the Federal Government to confer with you, and to superintend, direct and conduct the prosecution of the system of defense of your State.

"I have the honor to be, sir,

"Your obedient servant,

"W. H. SEWARD." This Circular was regarded by the English press and authorities as a "menace," and was pronounced "ill-timed”—“a foolish confession of fear," &c., &c. The reader will not be surprised to learn that its issue was partly predicated upon the fact that Great Britain ordered, during September, twenty-five thousand fresh troops to be sent to Canada, for distribution along our Northern frontier. This unexplained act of course the English press did not regard as a menace—as “illtimed" and a "foolish confession of fear." The same issue of the morning journals which first printed the Circular (October 17th), announced the escape of the rebel Commissioners extraordinary to England and France. Mr. Seward's prior information of the objects of the mission, also had something to do in the promulgation of his warning.

If England and France held aloof from the fraternal embraces of the emissaries of a Slave Confederation, it is to be presumed that the firm and confident attitude of the Federal Government exerted more influence than the foreign powers cared to confess.

Federal Letters of
Marque Refused.

There was a desire, on the part of the commercial class, to cope with Jefferson Davis'"Letters of Marque," and thus rid the seas of the pirates preying upon unarmed ships. To this end it was asked of the Navy Department that private vessels be specially commissioned to cruise after the privateers. In reply to one such solicitation the Secretary said: "It appears to me that there are objections to, and no authority for, granting letters of marque in the present contest. I am not aware that Congress, which has the exclusive power of granting letters of marque and reprisal, has authorized such letters to

NON-INTERCOURSE PROCLAIMED.

367

Federal Letters of
Marque Refused.

Good Condition of GovernmentFinances.

cities only, but to the people of the whole country. In order to secure a substantial reward for their public spirit to those whose patriotism prompts them in this hour of trial

ernment, Congress has directed that an interest of 7 3-10 per centum be paid on the several amounts subscribed, an interest not liable to State taxation, but constituting for subscribers a revenue not only certain in receipt, but greater in amount than can be expected from any ordinary investment."

be issued against the in- | Already the enlightened surgents; and were there and patriotic capitalists of such authorization, I am the great cities of New not prepared to advise its exercise, because York, Philadelphia and Boston have maniit would, in my view, be a recognition of the fested their clear sense, both of duty and inassumption of the insurgents that they are a terest, by a subscription of $50,000,000. Condistinct and independent nationality. Under gress, under which this subscription was rethe act of August 5, 1861, 'supplementary ceived, wisely provided, however, that the to an act entitled an act to protect the com- advantages as well as the patriotic satisfacmerce of the United States and to punish tion of a participation in this loan shall be the crime of piracy,' the President is author-offered not to the capitalists of the great ized to instruct the commanders of 'armed vessels sailing under the authority of any letter of marque and reprisal granted by the Congress of the United States, or the commanders of any other suitable vessels, to sub-to place their means at the disposal of Govlue, seize, take, and, if on the high seas, to send into any port of the United States any vessel or boat, built, purchased, fitted out or held,' &c. This allusion to letters of marque does not authorize such letters to be issued, nor do I find any other act containing such authorization. But the same act, in the section as above quoted, gives the President power to authorize the 'commanders of any ite investment, and Government had the satsuitable vessels to subdue, seize,' &c. Under isfaction of seeing not only capitalists operatthis clause letters permissive, under proper ing in the fund, but of knowing that men of restrictions and guards against abuse, might moderate circumstances were giving to it be granted. * their surplus means. Its success was one of be lawful, and perhaps not liable to the ob- the most agreeable signs of the times, and jections of granting letters of marque against our own citizens, and that, too, without law proved, as well the loyalty of the people as or authority from the only constituted pow-The entire amount, then called for, was abtheir comparative prosperity in times of war. er that can grant it." But, we are not aware that any private vessels were armed other than for their own protection. Large numbers of ships mounted a rifled gun or two each, for their better security, leaving to Government the task of ridding the waters of Davis' cruizers.

Good Condition of GovernmentFinances.

* **

This would seem to

Financially the Federal Government fared well. The experiment of a loan from the people proved so much of a success as to surprise even the most sanguine. It was submitted to the public by the Secretary in an appeal Sept. 2d, in the course of which he said: "For the means to defray the necessary expenses of this war your Congress has directed that an appeal be made to you, by opening a subscription to a national loan of one hundred and fifty millions of dollars.

The National Fund loan was soon a favor

Non-Intercourse and
Passports.

sorbed during the months of September and
October, and the bonds, ere long, advanced
to a premium of three and four per centum.
August 16th the Federal
Executive proclaimed non-
intercourse with the States
in insurrection, when the system of passports
was inaugurated. General Wool-a discreet
and sagacious officer-was ordered to Fort-
ress Monroe, where he might exercise a watch-
ful supervision over communications with the
South by way of Norfolk and James River.
That city soon became a chosen point of
transfer, through which those ordered from
the South by Davis,* might make their way.

*The Confederate President issued his decree, August 15th, 1861, ordering all persons who did not recognize the Confederacy to leave it, within the

Suppression of Newspapers.

It was during the months | shal, Sept. 18th, and its disloyal section sent of August and September to Fort McHenry); Ex-Governor Morehead, that a general suppression of Kentucky; Pierce Butler, an eminent lawwas made of disloyal newspapers in the North. yer of Philadelphia. Fort Lafayette, in New The offices of these obnoxious presses were York harbor, set apart for prisoners of State, visited by mobs and destroyed-the authori- held about one hundred persons under conties in no instance interfering, so overwhelm- finement up to October 30th, including the ing was the endorsement of the acts of these Baltimore Chief of Police, Marshal P. Kane, self-constituted umpires. Only one case of and the Board of Police Commissioners of personal violence occurred-that of the tarring that city. On the 30th of October most of and feathering (August 19th) of the editor the State prisoners were transported to Fort of a paper in Essex county, Massachusetts. Warren, in Boston harbor-which thereafter The persons composing these mobs were, to became one of the regular receptacles of pera considerable extent, responsible citizens, sons seized by orders from the Departments who acted without disguise. In New York of State and of War. city, August 16th, the Grand Jury presented several papers for hostility-all of the "Breckenridge" school of partizans. These journals were soon compelled to suspend publication or to change their tone to that of loyalty. In none of these instances did the General Government interfere or order the action: all was done by citizens or local authorities, if we except the denial, by the Post Office Department, of rights to mail facilities to the

66

The case of the Baltimore Board of Folice.

The incarceration of the Baltimore Board of Police, gave rise to proceedings for their release by the habeas corpus writ, and its attempted service on the commandant of the fort, afforded another instance of the asserted superiority of military over civil ! may refer to the incidents of this case as illustrative of the course pursued by the military authorities and the Federal Executive.

We

The Police Commissioners were arrested, New York Daily News." This denial was accompanied by forcible ejection of its issues early on the morning of July 1st, by order of from the mail-bags, which soon caused the susGeneral Banks, then in command of the Depension of the paper. The same proceedings partment of Annapolis-headquarters at Balwere instituted against the New York "Jour-timore. In justification of this exciting step, nal of Commerce," and thus compelled a change in its editorial tone. Both were rank opponents of the war, sedulously engaged in sowing dissension and disaffection. The cause of these journals afterwards was adopted by the party in opposition to the Administration, as one of its strongest counts in its indict-vation of public peace in this department, I have ment of unconstitutional acts.

Arrest of Citizens.

Numerous arrests of disloyal persons also transpired during the months named. The list of those incarcerated comprised Charles J. Faulkener, ex-Minister to France; Mayor Berrett, of Washington City, (who was soon after released on taking the oath of allegiance); the secession members of the Maryland Legislature, (which was closed by the Provost-Marterm of forty days from that date, or be liable to arrest as aliens and enemies. Under this decree many left, but the large majority of able bodied men, suspected of Union sentiments, were impressed into the Confederate army.

the Commanding-General issued the follow-
ing announcement, explanatory of his course
and of the purposes of his administration:
HEADQUARTERS, DEPARTMENT OF ANNAPOLIS,
FORT MCHENRY, July 1, 1861.
"In pursuance of orders issued from the head-
quarters of the army at Washington, for the preser-

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arrested, and do now detain in the custody of the United States, the late members of the Board of Police, Messrs. Charles Howard, William Gatchell, Charles Hinks and John W. Davis. The incidents of the past week afforded full justification for this order. The headquarters under the charge of the Board, when abandoned by the officers, resembled in some respects a concealed arsenal. After public recognition and protest against the suspension of the functions, they continued their sessions daily. Upon a forced and unwarrantable construction of my proclamation of the 28th ult., they declared that the police was suspended, and the police officers and men put off duty for the present, intending to leave the city without any police protection whatever. They refused to recognize the officers and men

The Case of the Baltimore Board of Police.

CASE OF THE BALTIMORE POLICE BOARD.

necessarily selected by the Provost Marshal for its protection, and hold subject to their orders now and hereafter the old police force, a large body of armed men, for some purpose not

known to the Government, and inconsistent with its peace and security. To anticipate any intentions or orders on their part, I have placed temporarily a

portion of the force under my command within the city. I disclaim, on the part of the Government I represent, all desire, intention and purpose to interfere in any manner whatever with the ordinary municipal affairs of the city of Baltimore. Whenever a loyal citizen can be named who will execute its police laws with impartiality and in good faith to the United States, the military force will be with drawn from the central parts of the municipality at once. No soldiers will be permitted in the city ex

cept under regulations satisfactory to the Marshal,

and if any so admitted violate the municipal law, they shall be punished by the civil law and by the civil tribunal.

matter," and to enable the
Sheriff to amend the return,
The Colonel not complying,

369

The Case of the Balti more Board of Police.

an attachment was issued for his arrest. The Sheriff was not allowed to execute the writ, however; upon which, under threat of an attachment against himself for contempt of court, he went through the form of inquiring of General Duryea what force of militia was at his disposal to aid him in executing the writ, On the General informing him that he was quite destitute of artillery, while the force of infantry was also inadequate for so serious a task, Judge Garrison decided that the Sheriff, in endeavoring to execute the writ in good faith, had not laid himself open to the consequences of a contempt, and that the power of the Court was exhausted. Thus ended the proceedings, which were instituted with a full knowledge of their certain result. The case was gone through pro forma for the purpose of a precedent and evidence, in event of a future investigation into the conduct of the Adminisiration. The case for the complainants would have been stronger had the treason of their clients been less rank. From the hour of the attack by the mob on the Massachusetts men, the Chief of Police and the Commissioners were tireless in their efforts to annoy and imperil the General Government. Kane, as Chief of a large body of disloyal men, on the day of the assault (April 19th, 1861,) telegraphed to Bradley T. Johnson, of Frederick, (afterwards an officer in the rebel army,) as follows, in reply to Bradley's offer of men to repel the "Northern in

NATHANIEL P. BANKS, "Major-General Commanding." At the same time several leading citizens of active secession proclivities were "restrained of their liberty" and given close quarters in the Fort. The Commissioners remained at Fort McHenry about a month, when it was deemed advisable to transfer them to Fort Lafayette, for safer keeping, and to prevent the further excitement growing out of attempts for their release by civil process. They arrived, by sea, in New York harbor, August 1st, and were placed in close quarters within the Fort. Their friends, however, nothing daunted by the transfer, followed to the vicinity, and, August 6th, succeeded, on the formal petition of the imprisoned men, in obtaining the issue of a writ of habeas corpus, by Judge Garrison, of Brooklyn. The writ required Colonel Burke, commandant of the Fort, to produce the prisoners before the King's County Court. The officer immediately telegraphed to the War Department without delay. Fresh hordes will be down upon us for instructions and received a reply from General Scott, General-in-Chief, forbidding him to produce the prisoners. On the 9th "GEORGE P. KANE." the writ was returned to Court, stating that This precious epistle was the key-note to Colonel Burke deeply regretted that, pend- the purposes of those having Baltimore in ing the existing troubles, he could not com- their keeping; and the discovery of arms and ply with the requisition of the honorable munitions secreted in Station houses-to be Judge. Upon which Judge Garrison post-given out to the "blood tubs" of the city, at poned the case to the following Monday, to the propitious moment-did not strengthen allow Colonel Burke time to "reconsider the their claim to immunity from arrest. Yet,

vaders :"

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Thank you for your offer. Bring your men by the first train, and we will arrange with the railroad afterwards. Streets red with Maryland blood.

"Send expresses over the mountains and vallies of Maryland and Virginia for the riflemen to come

to-morrow.

die.

We will fight them and whip them, or

(Signed)

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