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A Constitutional History of the United States
Chapter XLIV - Constitutional Problems of the Civil War
by McLaughlin, Andrew C.


Constitutional history of the Civil War period is filled with perplexities, and no adequate treatment can avoid them. The purpose of this chapter is to avoid technicalities, if possible, and to present briefly the prominent facts and principles. No other four years were so crammed with problems, though in some ways, when singled out, they probably loom larger to-day than they did in the mind of the common man during the days of conflict when the masses of men were intent upon winning the war, had confidence in the character of the President, and could not be bothered by abstruse and abstract political questions. Lincoln's general attitude was probably not far different from that of the main body of loyalists: the union must be saved, the Constitution must be defended, and minor encroachments upon constitutional limitations were justified by the necessity of maintaining the life of the nation and preserving its fundamental law.

The main constitutional difficulties arose from, first, the plain fact that the Constitution is peculiarly reticent on the subject of war and the conduct of war; second, from the necessary conflict between provisions calculated to maintain personal liberty and to secure ample and considered justice on the one hand, and the imperious demands for effective warfare on the other; and this latter difficulty is closely connected with the fact that the war was technically an insurrection; the "enemy" were citizens in rebellion; these citizens were using state governments for their purposes; and yet, despite this constitutional theory, the war had in reality many or all of the characteristics of a public war carried on by hostile nations. Had there not been at Washington a serious attempt to follow the dictates of constitutional law, had the Constitution been for the moment deliberately assigned to the dust-heap, no very serious constitutional problems would have been left for the historian's chronicle. The perplexities facing us, therefore, arose from the attempt, partly successful, to reconcile war and law; and the attempt is in itself a matter of great consequence. The very recognition of the problem, the tacit as well as the explicit acknowledgment of the necessity of maintaining civil government instead of sweeping aside all constitutional forms, is the conspicuous matter. A despot would have had no problem and no legal scruples; a battle-mad populace would have laughed in its glee at the absurdity of a contest between law and brute force. The Civil War was a great and influential event in the world's history for many reasons: it affected not America alone, but Europe also; its influence was felt because it gave the final blow to slavery, but chiefly because a democracy survived a devastating civil war, and because during the contest there was recognition of the need for law and constitutional procedure.

The bombardment of Fort Sumter set the north afire. Lincoln issued a proclamation calling for 75,000 of the state militia to suppress combinations "too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law", and "to cause the laws to be duly executed." A few days later he proclaimed a blockade of the ports of seven southern states then members of the Confederacy. In the call for the militia, he was treating the southern uprising as an insurrection which could not be put down by ordinary legal procedure. Presumably he was influenced, and justly so, by the attitude of those slaveholding states that had not as yet seceded but were ready to take umbrage at real or apparent coercion of a state. Probably also he was shrewd enough to take advantage of the sentiments of the northern people outraged by the attack upon national property and the national flag. At all events, his procedure, viewed from either the standpoint of constitutional theory or practical politics, was unquestionably correct.

Technically, the uprising could be held to be a rebellion, and it was so named and so considered. All through the four years of conflict, the government studiously refrained from recognizing the Confederacy as a de jure nation or combination of nations. In theory, the Confederate government was without legal existence. Had this theory been actually carried out and not merely depended upon as a theory to justify, on a constitutional basis, the acts of the federal government, then individuals could and would have been held personally responsible for acts of treason. But, as a matter of fact, almost from the beginning there was a state of war, and the armies of the Confederacy in the field were treated as the forces of a belligerent power.[1]

Practical politics, common sense, and ordinary regard for human rights demanded the recognition of the fact of war; but to acknowledge, in constitutional theory, the right of a combination of states to set up a legal government would be only an acknowledgment that the north was violating constitutional and legal principles and had unlawfully made use of force.

However tenuous the insurrection theory might seem to be to foreign governments, and however much the actual conduct of the war distinguished it from an ordinary suppression of an utterly lawless uprising, there is no great difficulty in recognizing the right of a government, when faced by a powerful opponent, to accord to the opponent the full rights of a belligerent. So the war was of a dual character: in strict theory it was an insurrection; but in the conduct of the war the insurgents were treated as forces of an independent government.

This matter in some of its aspects was presented by the proclamation establishing a blockade of the southern ports. The President of the Confederacy, on April 17, invited all those who were desirous of aiding the Confederate Government "by service in private armed vessels on the high seas" to apply for letters of marque and reprisal — in other words, to take up privateering which was, of course, quite within the proper competence of the government, if it was the head of a sovereign nation or group of sovereigns.[2] Two days later Lincoln, referring to a combination of persons engaged in insurrection and their threat to grant letters of marque, declared a blockade, and announced that any person molesting a vessel of the United States would "be held amenable to the laws of the United States for the prevention and punishment of piracy." A blockade is a war measure; it is of common use in a public war; it necessarily involves the rights and obligations of neutral nations. Two years later the Supreme Court, upholding the legality of Lincoln's proclamation, made this statement: "The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against the other.... When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war." [3]

The subject discussed by the Court in the Prize Cases involved more than the question whether an insurrection might also constitute a war. When did the war begin? Did the President, without congressional declaration, have the legal right to carry on war? To some extent, if not wholly, the two questions are one. Congress did not meet upon the call of the President until July 4, and in the meantime troops were in the field and hostilities had begun. The Court practically accepted the statement of William M. Evarts, one of the counsel for the government, that "War is, emphatically, a question of actualities." But in speaking of the time when the war began, special attention was paid by the Court to the proclamation of blockade as official and conclusive evidence that war existed.[4] "If a war be made by invasion of a foreign nation," said the Court, "the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.... Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted." It would have been strange indeed, had the Court decided, months after the war had actually begun, that the President had no such power.

On May 3 Lincoln issued a proclamation summoning 42,034 volunteers to serve for three years; he also called for an increase of the regular army by the addition of 22,714 officers and men, and for the enlistment of 18,000 seamen.[5] These steps were probably entirely justified by the needs of the situation, if we consider only actual difficulties; no one would deny Lincoln's moral right to break the Constitution in order to save it. But viewed as a constitutional precedent, it bears an ominous look. Can a president of the United States, using his own discretion, build up a large army and even enlarge the standing army? This is not a question of commanding interest, if viewed from the perspective of over half a century; but it presents a general principle not to be answered affirmatively without apprehension for the future. Probably this proclamation was technically beyond presidential authority, more clearly in the enlargement of the regular army than in the call for volunteers.

The sympathy of many citizens in Maryland for the Confederacy made the position of the President and the government embarrassing and dangerous. The President acted with circumspection and his usual common sense. Writing to General Scott, April 25, he said, "The Maryland legislature assembles to-morrow at Annapolis, and not improbably will take action to arm the people of that State against the United States." The question, he said, had been submitted whether it would not be justifiable for the General to arrest or disperse the members of that body. He pointed out the objections to such a course, and concluded "that it is only left to the commanding general to watch and await" the action of the legislature. Should that action be "to arm their people against the United States," the General was to adopt "the most prompt and efficient means to counteract [it], even, if necessary, to the bombardment of their cities, and, in the extremest necessity, the suspension of the writ of habeas corpus." Two days later a similar but somewhat more direct authorization was sent to Scott. The President did not suspend the writ but passed on to the officer in charge the authority to do so if necessity arose.

Discussion arose concerning the President's right to take any such action, but before entering upon that question it is desirable to point out that if Washington had been entirely cut off, as indeed it was for a brief interval, if Maryland had swung into the Confederate column, if the threatened disaster had actually occurred, then the President; whose duty it was to save the union and enforce the laws, would have received no credit for neglecting to use every means at all consistent with humanity to establish order and insure public safety.

The validity of the suspension of the privilege of habeas corpus came before Chief Justice Taney when a military officer refused to obey the writ. The venerable Justice denied that the power of suspension belonged to the President; the constitutional declaration concerning it appears in the article dealing with legislative powers and the provisions limiting legislative authority; the prohibition is associated with other prohibitions of congressional action; for this and other reasons, suspension must be considered to be within the power of Congress and of Congress alone.[6] But, we should notice, even Congress cannot legally suspend the privilege unless public safety requires it.[7] The opinion of the Chief Justice was criticized at the time and has been questioned in the calmer years that followed.[8] In reality, the authority to suspend the privilege of the writ is in some respects of much less importance than the right to declare martial law and place the whole region under complete military control. The justification for such a step must be the existence of actual disorder or a condition which seriously threatens civil authority; in other words, justification must rest on facts. A portion of Maryland was at that time within the sphere of military operations. Lincoln would have been negligent, had he not proceeded to take such steps as the condition warranted. His own words indicate what the danger appeared to be: "Maryland was made to seem against the Union. Our soldiers were assaulted, bridges were burned, and railroads torn up within her limits, and we were many days at one time without the ability to bring a single regiment over her soil to the capital." [9] If the President could properly treat the region as one requiring military control and martial law, it seems difficult to assert that he could not take the comparatively mild step of suspending the privilege of the writ of habeas corpus.

The signal question is the one we have encountered in other connections: who is to judge? Must the court acknowledge the fact and the need of martial law or the need of the suspension of the writ whenever the executive so declares? Must the executive yield without delay to the pronouncement of the court and act with all deference to the opinion of some court or some individual justice? Developments of recent years indicate a tendency to recognize "the necessity of giving executive power a free hand in situations of public disorder...." [10] This tendency is illustrated by decisions concerning the state executive authority; but there is no great difference, if there be any, between the principles underlying authority in the state and in the nation. And yet we need not suppose that there is no law and that all is chaotic because the judiciary and the executive are at variance: It is the duty of the courts to protect civil rights and civil law; they need not yield supinely and without protest to the authority of the military or to the order of a martial-minded and dictatorial commander-in-chief.[11] Justification for suspension of the writ or its privilege depends, when all is said, on actual conditions and the extent of the peril.[12]

But the people of a free country, if they wish to remain free, are naturally suspicious of military power. Fundamental in Anglo-American law is the inherited principle, deeply embedded in sentiment, that the army is not superior to the civil arm of government but is subject to legal authority. And the writ of habeas corpus, the most celebrated writ in English law, gave assurance, as long as it remained inviolate, of the continuance of unarbitrary government and respect for individual rights and personal liberty. The difficulty of preserving orderly government and the supremacy of law during a civil war was a real difficulty; it tested the sanity and political wisdom of the people of the land and of the administration at Washington.

Congress passed an act (signed by the President, August 6, 1861) approving and legalizing "all the acts, proclamations, and orders of the President ... respecting the Army and Navy ... and calling out, or relating to the militia or volunteers from the States...." Such an enactment did not definitely decide the legality of what the President had done, and the same can be said of the act of March 3, 1863.[13] Congress cannot legalize retroactively the unconstitutional procedure of the president. The nature of Lincoln's mind and his attitude toward constitutional problems are shown by his defense of what he had done; his statement given July 4, 1861 is characteristic of his reasoning during the course of the war: "The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? ... But it was not believed that this question was presented. It was not believed that any law was violated."

But more important than the suspension of habeas corpus in certain regions is the whole question of arbitrary arrest and imprisonment. Remembering the fundamental principle which has been already stated — the principle of free government and the subordination of the military to the civil authority except where the civil arm is powerless to protect the state and individual liberty — we can see plainly that any unnecessary encroachment by military forces is unconstitutional; and the question remains, does the necessity exist? We may notice at the outset that the country was not divided accurately into two distinct parts, in one of which the people were in insurrection while in the other they were loyal and law-abiding. States like Missouri and Kentucky were in a disturbed condition; it was quite impossible to treat them, as the war went on, as if all the people were heartily supporting the union and as if they were not disturbed by Confederates and Confederate sympathizers. But that was not the whole of the difficulty. The states north of the Ohio were not entirely free from plots and conspiracies endangering the union and the success of its armies.

In consequence of these conditions, arbitrary arrests were frequent. They took place not alone in areas where many persons were known to be secretly disloyal and engaged in more or less active conspiracies, but also in regions where there was no evidence of widespread disaffection or of dangerous combinations. While Lincoln was anxious not to carry methods to an extreme and not to cause unnecessary suffering, many of his subordinates — of course and inevitably — were not particularly circumspect or tender in their handling of suspected persons. Every arrest furnished the northern opposition with rallying cries; and objections did not come entirely from the Democratic party or from those who deserve to be called disloyal, but also from timid souls awed by the specter of tyranny. We can scarcely estimate with even an approach to accuracy how many persons were thus arrested beyond the area of actual conflict. The number reached into the thousands, if arrests for all causes be counted; and with this vague statement we may perhaps content ourselves. Competent investigators have found exact enumeration impossible.[14]

Secret societies were formed — the Knights of the Golden Circle and the Order of American Knights, later the Sons of Liberty. How many persons were enrolled among the Knights, no one can say. General H. B. Carrington, who was in the northwest during the war and knew conditions in the most deeply-infected region — the southern portions of Illinois, Indiana, and Ohio — , asserted that there were 70,000 members of the order in Illinois and 87,000 in Indiana.[15] Some of the leaders had plans for freeing southern prisoners and even seizing the state governments; but doubtless the vast majority had no more malicious purpose than to put an end to the war and to reŰstablish the union with a recognition of slavery and state sovereignty. To allow all this dark plotting to go along unheeded was naturally quite impossible. The constitutional question, it will be noticed, is not whether persons may be arrested in time of public peril and punished for acts and speeches endangering the welfare of the army and the nation, but whether persons outside the military areas may be legally seized and held by military officials, and tried, if tried at all, by military courts. There is no reason for doubting the elementary principle that, whenever and wherever the public safety permits, arrest and punishment should be left to the civil authorities.

A proclamation issued by the President (September 24, 1862) declared "that during the existing insurrection ... all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts-martial or military commissions...." The proclamation also declared the writ of habeas corpus suspended in respect to all persons arrested or imprisoned by any military authority or by the sentence of any court-martial or military commission.[16] A congressional act, passed some months later (March 3, 1863), authorized the President to suspend the writ of habeas corpus; it provided for furnishing federal judges with the names of persons held in military custody and for the release of prisoners under certain conditions. It declared that any order of the President, or under his authority, made at any time, should be a defense in all courts to any prosecution civil or criminal. We may well doubt the power of Congress to give immunity to the President's agents chargeable with illegal acts.[17] But the president conducts war, and his acts are to be justified on the ground of the necessities of the case.

At a later time, the Supreme Court announced in the celebrated Milligan case that military tribunals have no legal right to try and punish civilians in a region where the civil courts are open and prepared to try the alleged offender.[18] This decision was rendered after the close of the war by a divided Court, when the time had come to abandon the practices, which, if excusable at all, could be excused only on the ground of imperative necessity. But the Court appears to leave to the judiciary the determination of what is the area of war and of public danger; and the decision has b9en criticized by competent persons because the full recognition of such a principle in an emergency would be impossible. The principles, already mentioned on preceding pages in connection with the habeas corpus controversy, are, however, plain and of value, even if they leave us in uncertainty concerning their practical application: the courts are not called upon to acquiesce in violation of constitutional rights, but are under obligation to uphold them; they may not find it possible to prevent what in their opinion is unjustifiable encroachment on individual liberty, but they can make their pronouncements with decent regard for executive authority and with a comprehension of the actual situation. No one can plausibly assert that the executive, under the guise of conducting war, can legally harry the peaceful countryside and thrust persons into military prisons; there are limits on the authority of the president in time of war.

The most conspicuous instance of military arrest and punishment arose in the spring of 1863 — those dark months before the victories at Gettysburg and Vicksburg. General Burnside had been disastrously beaten at Fredericksburg late in the previous year. In May, Hooker's army met defeat at Chancellorsville. The north was filled with foreboding, though the stalwart loyalists held their heads high despite growing discouragement or alarm. The very night when Lee and Stonewall Jackson were planning their brilliant and successful movement against Hooker, a mass meeting at Mount Vernon, Ohio, was addressed by Clement L. Vallandigham, a brilliant and captivating speaker, who was then seeking nomination by the Democrats for the governorship of the state. The details of his speech are not accurately known, but his words were sufficient to cause his arrest by General Burnside, the commanding General in that area. The General had issued an order announcing that "treason, expressed or implied, will not be tolerated in this department." Vallandigham, turned over to the mercies of a military commission, was found guilty and condemned to imprisonment during the continuance of the war. The President converted the punishment to banishment within the Confederate lines — thus tempering mercy with humor. Vallandigham was nevertheless nominated and of course badly beaten at the polls. The arrest and punishment, the failure to ignore the fulminations of acrid oratory which made the frayed nerves of the loyal northerners tingle with indignation, probably did more harm than good.[19] Sympathize as we may with the irritated people who were giving up their sons to death on the field of battle or to suffer in southern prisons, we must hold in high esteem a courage which would have upheld free speech in days of disaster — but it is not for us to pass sentence of condemnation. In the latter part of the war Vallandigham returned to Ohio and was not troubled by the federal authorities.

In a letter sent by Lincoln in reply to the resolutions of an Albany assembly, which complained of the military arrests and punishments, may be found as cogent a defense of his own procedure as can be found anywhere.[20] But, after all is said, it is the human appeal in the letter that is most affecting and effective; it gives the reader some consolation amid the perplexing and insoluble problems of constitutional authority. Speaking of the famous Vallandigham matter which had especially aroused opposition, Lincoln said, "Long experience has shown that armies cannot be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? ... I think that, in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy." [21]

The history of four years of civil war discloses the difficulty of maintaining the principles and practices of peace when peril stalks at midnight and passions are aroused; ordinary constitutional prescriptions are preserved with difficulty and at times appear valueless; but safety from tyranny lies not so much in the technicalities of law as in the constitutional conscience of officials and people and in the intelligence of the voting masses, who, if they use discretion, will seek to place in office men of wisdom and of rectitude rather than greedy graspers for power. That is a simple-minded assertion, but it brings out the basic fact that democracy and civil liberty find their only real security in the mind of a democratic populace cherishing the elements of orderly and responsible government.

It is especially difficult to preserve the freedom of speech and the press in time of war; to mark with precision the line to be drawn between illegal and justifiable suppression is impossible. There was no statutory enactment on which the administration could rely, and once more Lincoln had to do the best he could. He was certainly slow to wrath. No temperamental dictator could have endured the sneers and calumny with which the more truculent newspapers attacked the President and the conduct of the war. These verbal assaults, which were calculated to encourage disaffection, were grievances hard to be borne with patience; and yet, when the publications were suspended, the interference with free, if ruthless, expression of opinion seems on the whole to have done no good. A real and very noteworthy difficulty in carrying on the war was the fear in the minds of many people that tyranny would have them in its grasp; and the wily agitator could take advantage of that very fact.[22]

The Conscription Act of March, 1863, aroused opposition and gave the government's opponents another opportunity to portray the lineaments of tyranny. It was immediately met by protests and a flood of constitutional arguments. The politicians, many of them loyal but with strange methods of displaying their devotion, simple-minded souls anxious for constitutional liberty though the heavens fall and the union be destroyed, the weary and the discontented, and certain inflammable elements, as well as the chronic trouble-makers, were all prepared for opposition. Those were months that tried men's souls. Riots broke out in New York City in mid-July, only a few days after Lee had retreated from Gettysburg and Grant had taken Vicksburg. Those victories lifted a load from the heart of the north, but the war was not yet won; disaster in the eastern area had been escaped only by a narrow margin; Lee still led a magnificent army under his superb command. Governor Seymour of New York sympathized with the cause of the rioters, if not with their methods. To question now the right of the government to demand and compel the support of men able to defend it is to assert that a free country, especially a federal republic, cannot, because of certain vague or imaginary constitutional inhibitions, use its power to maintain its life.

The constitutionality of conscription was definitely announced by the Supreme Court passing on the Selective Service Act of 1917.[23] But perhaps Lincoln's words, confided to paper though not published at the time, are quite as telling, and here are more significant: "The case simply is, the Constitution provides that the Congress shall have power to raise and support armies; and by this act the Congress has exercised the power to raise and support armies. This is the whole of it.... Do you admit that the power is given ... and yet insist that by this act Congress has not exercised the power in a constitutional mode? — has not done the thing in the right way? Who is to judge of this? The Constitution gives Congress the power, but it does not prescribe the mode, or expressly declare who shall prescribe it. In such case Congress must prescribe the mode, or relinquish the power. There is no alternative. Congress could not exercise the power to do the thing if it had not the power of providing a way to do it, when no way is provided by the Constitution for doing it. In fact, Congress would not have the power to raise and support armies, if even by the Constitution it were left to the option of any other or others to give or withhold the only mode of doing it.... The power is given fully, completely, unconditionally. It is not a power to raise armies if State authorities consent; nor if the men to compose the armies are entirely willing; but it is a power to raise and support armies given to Congress by the Constitution, without an 'if.' " [24]

For more than one reason the words above given are of interest. They not only present a forcible argument, perhaps utterly convincing, but they also illustrate the power of the President as a skillful constitutional lawyer. Marshall could not have done better; the argument seems to have the peculiar vigor and the peculiar flavor of Marshall at his best, especially in the simplicity — the adroit simplicity — with which the argument begins and the inexorable steps by which it moves to the conclusion.

In the case of conscription, as in other matters, we get a false perspective if we cast a strong light on the obstacles thrown up by the conscientious or the intriguing opponents of the government. The more important fact is the enforcement of the law, the quiet determination of the people, their readiness to go grimly forward, their confidence in their own strength, a confidence not to be weakened by any apparent, but, in their judgment, imaginary, danger from despotism.

The war, Lincoln believed, was not to free the slaves but to preserve the union, to maintain his country as a living whole. No one knew better than he that slavery caused the war; moreover, he believed the union could not permanently endure half slave and half free. Why then did he not at once proclaim the conflict to be a crusade against slavery? Partly, it would seem, because he knew at the beginning the masses at the north were aroused by disunion, and many were not filled with zeal for the freedom of the slaves; partly because he must hold the border slave states, if possible. Every effort must be made to hold the support of all loyalists whatever be their sentiments concerning slavery. Doubtless he was influenced by constitutional scruples. Did he or others have the right to wage a war primarily to extirpate slavery, which was a state institution subject to state law? In August, 1862, a few weeks before he issued the emancipation proclamation, Lincoln wrote Horace Greeley: "My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that." [25] This must not be read to imply no disapproval of slavery and no hope of its speedy or ultimate disappearance — of course not. Through those anxious years he must have pondered deeply. If the union were lost, everything would be lost — union, the antislavery cause, democracy; for he believed that America was intrusted with a mission, the mission of demonstrating the capacity of men to govern themselves; if the union were dissolved, slavery as the corner-stone of a great confederacy would be perpetuated. If the union were saved, there would be at least hope of the disappearance of slavery and the development of a democracy freed from the virus of a system of labor already abandoned by most of the civilized world.

Almost from the beginning of the war the existence of slavery in the border states as well as in the confederated states brought many difficulties.[26] Lincoln moved slowly, cautiously, watching the course of things, deciding incidental questions as they arose, seeking, it would seem, to discover the public mind, anxious to act wisely, uncertain of all save the main route he should follow, but determined that not even the antislavery cause should endanger the success of northern armies. Little by little it became plain that slavery must go. Soon after the beginning of hostilities a congressional act (August 6, 1861) declared that if any slave be required to take up arms or to work in military or naval service against the United States, the owner should forfeit his claim to such labor. A year later (July 17, 1862) in the Confiscation Act a further step was taken. All slaves, the act announced, belonging to persons in rebellion, taking refuge within the union lines, and all slaves captured from such owners or found in any place, that had been occupied by the rebel forces, should be deemed captives of war and should be free. How such confiscation could be carried out, if technical regard should be paid to legal rights of the owners who might not be disloyal, is an interesting problem, but in this connection not of supreme importance; the important fact is that Congress acted and its acts pointed to emancipation as an exercise of the power to make war.

In midsummer, after fifteen months of war, during which the north had won some victories and had suffered heart-rending defeats, Lincoln thought the time had come to announce the end of slavery within the Confederate lines. He submitted to the cabinet (July 22 1862) the draft of a proclamation. It was a bold proposal; McClellan's peninsular campaign was a dismal failure. Was this the moment to take the momentous step? The cabinet members were as a whole not unfavorable, but Seward said, "It may be viewed as the last measure of an exhausted government, a cry for help; the government stretching forth its hands to Ethiopia, instead of Ethiopia stretching forth her hands to the government. It will be considered our last shriek on the retreat." Delay appeared advisable, but after the battle of Antietam, and when Lee had withdrawn his forces across the Potomac, the preliminary proclamation was issued (dated September 22).[27]

It declared the President's intention to ask Congress to adopt a "practical measure" tendering to the slave states not in rebellion pecuniary aid for the abolition of slavery, and declaring also that the effort to colonize negroes would be continued. It declared that on the first of the succeeding January all persons held as slaves within any state or part of a state in rebellion should be henceforth and forever free. At the appointed time (January 1, 1863) the final proclamation was issued. It designated the states and parts of states which were then in rebellion, and declared all persons held as slaves in those areas to be free. Enjoining the freedmen to abstain from all violence unless in necessary self-defense, it declared that all "such persons of suitable condition" would be received into the armed service of the United States to garrison forts and to man vessels of all sorts. The proclamation, it should be noticed, was to apply only to those regions where for the time being the government did not possess actual control; it proclaimed the freedom of men who could not be made really free unless federal armies were victorious. And yet, of course, it pronounced the doom of slavery; such was actually its effect. The nature of the war could no longer be mistaken; everywhere — in Europe, where the struggle was watched with intense attention, and in the north and south alike — men now could see the war as a final desperate struggle to determine whether slavery should perish.

Emancipation was a war measure, proclaimed by the commander-in-chief of the army and navy. Lincoln made no attempt to induce Congress to emancipate the slaves. Such an act would look too much like the presumption that Congress, within its customary field of legislation, possessed control over the subject of slavery, though it had always been held to be a matter for the states alone. The proclamation depended for its justification on the practices of warfare; if property, even if the property be man, is actually used for military purposes by the enemy, an army commander may doubtless properly seize it. Writers on international law commonly now disapprove the confiscation of private property belonging to alien enemies, and the tendency to respect such ownership has been marked in recent decades. But this tendency or practice cannot be looked upon as a principle embodied in the structure of constitutional law. Once again, difficulty arises because the war was something more or something less than a public war; the persons affected might be loyal citizens of the United States and be considered enemies by a forced if necessary construction, only because they lived within areas subject to the Confederacy and not in actual possession of the government of the federal union.

This, more than most problems we have discussed, appears to us now as purely academic and as far away as Genghis Khan; but as an episode in the intensely important movement of the nineteenth century to free civilization from slavery it retains its interest. Did the proclamation have the legal effect of destroying slavery within the areas mentioned in the proclamation, or was that famous document in legal purview only a gesture? Did freedom actually wait upon formal constitutional amendment? No one would to-day like to answer the question in peremptory fashion; but on the whole the best decision is probably this: the proclamation could not free the slaves immediately and by its own force within areas not within actual control of the northern army; its legal effect depended upon the progress of the conquering troops; as they extended their actual occupancy, emancipation, as proclaimed by the commander-in-chief, went into effect.[28] Thus freedom literally would follow the flag. Lincoln was fairly certain of the validity and effect of his proclamation, but he saw the advisability of an amendment. For, as we have seen, the proclamation did not even pretend to free the slaves in the border states nor, of course, in the regions of the Confederacy already subdued.

For a considerable time, the President had been intent upon bringing about emancipation, in all the states willing to listen to him, by some plan for federal co÷peration and pecuniary aid.[29] In accord with his recommendation Congress passed a resolution (April 10, 1862) which declared that the United States ought to co÷perate with any state which should adopt gradual abolishment of slavery, and should give pecuniary aid "to compensate for the inconveniences ... produced by such a change of system." But the proposal had no effect on the border states. Lincoln, however, did not despair. In December, two months and more after his preliminary proclamation of emancipation, he urged Congress to pass a constitutional amendment providing compensation to every state which should abolish slavery before the beginning of the twentieth century. This plan, he said, would shorten the war, perpetuate peace, and preserve the benefits of the union. "Fellow-citizens", he said in the memorable closing passage, "we can not escape history. We of this Congress and this Administration will be remembered in spite of ourselves. No personal significance or insignificance can spare one or another of us. The fiery trial through which we pass will light us down in honor or dishonor to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We, even we here, hold the power and bear the responsibility. In giving freedom to the slave we assure freedom to the free — honorable alike in what we give and what we preserve. We shall nobly save or meanly lose the last best hope of earth. Other means may succeed; this could not fail. The way is plain, peaceful, generous, just — a way which if followed the world will forever applaud and God must forever bless."

Proposals to settle the question for all time by constitutional amendment were offered in Congress at various times after the issuing of Lincoln's final proclamation. The Senate, by a vote of thirty-six to six, adopted a resolution of amendment April 8, 1864; but the House, giving only ninety-five affirmative votes out of a total of one hundred and sixty-one — less than the requisite two-thirds — , refused to take the momentous step. One objection, put forth by Pendleton of Ohio, is of interest because it is an example of the kind of constitutional interpretation which has more than once been vehemently defended: three-fourths of the states, said Pendleton, did not possess the constitutional power to pass the amendment, nor, indeed, all the states save one, because the institution of slavery lay within the dominion reserved entirely to each state for itself.[30] Such an argument implies that the American people do not form one body politic capable of shaping its own destiny. Not forming one people, they are dependent not only on the acquiescence of every state entering the constitutional system at the beginning, but also on the consent of thirty and more states that entered after that time. The argument also rests upon the supposed purpose of the men establishing the Constitution: the division of authority between the states and the central government is absolutely unchangeable; only mechanical or incidental alteration of the constitutional system can be made by amendment; any encroachment on the general sphere of the states as provided by the original document is unconstitutional; by amendment additional securities may be given to support the original idea, but no amendment can lessen the force of the original purpose by depriving the states of authority or limiting the scope of their legal competence. This argument against freedom of amendment would scarcely merit refutation were it not that it emerges from obscurity at critical times and has remarkable longevity. It seems peculiarly inappropriate for acceptance by a people who believe they are the embodiment of modernism, whose Constitution has been continuously modified by practice and by interpretation, and who live under conditions so different from those of 1787 that it may be said that greater changes in social and economic life have come since the Constitution was framed than had come in the course of the preceding thousand years.

After the election of Lincoln in the autumn of 1864, and after a summer of success accompanied by horrible slaughter on the battle-fronts, the amendment came once more before the House. It was carried by a vote of 119 to 56 — an astonishing result on the whole: after nearly four years of civil strife, a shifting of three votes to the negative would have prevented its passage. It was submitted to the President and signed by him; but such signature, it may be noticed, was unnecessary, if not actually improper.[31] Senator Trumbull immediately proposed and the Senate passed a resolution stating that the approval was unnecessary and should not be taken as a precedent.

In light of the problems of Reconstruction, which are to be considered on succeeding pages, one fact is especially noteworthy. When Secretary Seward announced adoption, December 18, 1865, he counted among the ratifying states which constituted the requisite twenty-seven votes, eight states of the former Confederacy.[32] At that very time congressmen were asserting the incompetence of the states which, by attempting secession, had forfeited their privileges in the union. The wandering commonwealths were, it seems, sufficiently alive to sanction formally a constitutional amendment, but not, as yet, far enough revived to be received into full participation in legislative halls. Seward said there were thirty-six states "in the United States", and the number ratifying was twenty-seven. Now if the states of the defunct Confederacy were not in the union, then only nineteen ratifications were necessary — three-fourths of twenty-five; and in fact nineteen of the ratifying states were unquestionably members of the union. It would appear necessary to choose either one horn of the dilemma or the other: if the states of the Confederacy were to be counted as in the union, then their ratification of the amendment was satisfactory; if they were not in the union, then three-fourths of the members who were had ratified the amendment.

The disruption of Virginia and the establishment of a new state within the ancient borders of the Old Dominion present an interesting example of the way in which a constitutional provision[33] can be handled — or mishandled — when political necessity arises. There had long been substantial differences between the western region of Virginia and the old tidewater section. The differences were largely due to the slight hold of slavery on the west, which, moreover, geographically belonged with the states bordering the Ohio River and in large degree with the free states of the old northwest, rather than with the old south or the cotton-raising areas of the new south. The final cleavage is only the most dramatic and conclusive demonstration of sectional diversity and its influence in American history.

The movement for dissolution began soon after the opening of the war. A convention meeting at Wheeling set up a government purporting to be the government of Virginia. The government at Richmond having passed into the hands of men warring against the nation, the people by popular action were entitled — such is the theory, and perhaps it is entirely sound — to bring a loyal government into existence. Francis H. Pierpont was chosen Governor and steps were soon taken to select other state officers. This government, thus strangely begotten, existed as the legitimate government of Virginia during the course of the war — legitimate, that is to say, as far as legal fiction and practical political interest could make it so. A constitutional convention, composed of men desiring the organization of a new state, West Virginia, met at Wheeling in November, 1861, and proceeded to form a constitution. It was submitted to the people and was adopted "by the suspiciously large majority of 20,622 to 440." [34] The legality of this procedure is the critical question; for, if the legality is accepted, the proceedings which follow can be successfully defended as technically sound — even if they seem to rest on a purely legal fiction.[35] The Pierpont government, posing as the government of Virginia, gave its consent to the establishment of the new state; and the deed was done. The provision of the federal Constitution had been accorded formal and ostensible recognition.

Was there any real regard for constitutional behests and restrictions? If a state is ceasing to function as a state in the union, if its government is in the hands of disloyal persons, cannot the loyal citizens act? Can they not proceed on the basis of elementary popular rights and set up a new government willing to perform its legal functions in a state legally acting as a portion of the union? It is rather difficult to deny them that right, even within the domain of strict law.

Lincoln, whose mind normally reacted against mere specious pretense and found open disregard of law obnoxious, had his misgivings; and yet how could he have done otherwise than accept the facts and welcome the effect of the whole situation? The cabinet was divided.[36] Discussions in Congress disclosed wide differences of opinion. One speaker declared that the legislative powers of the people could not be annihilated, and that they reverted to the people when the government at Richmond was overthrown by treason. Another insisted that no person could honestly believe the Pierpont government to be the government of Virginia. Another asserted that to uphold the procedure was merely to trifle with the spirit of the Constitution. Thaddeus Stevens expressed his opinion curtly in accord with the philosophy of which he was the chief exponent during the days of Reconstruction: "I say then that we may admit West Virginia as a new state, not by virtue of any provision of the Constitution but under our absolute power which the laws of war give us." [37] The new state was finally admitted into the union in the summer of 1863.

Lincoln's final pronouncement was similar in tone and content to his declarations at other times, when necessity or practical common sense appeared to make constitutional refinements and haggling dispute especially unwholesome: "Can this government stand, if it indulges constitutional constructions by which men in open rebellion against it are to be accounted, man for man, the equals of those who maintain their loyalty to it? Are they to be accounted even better citizens, and more worthy of consideration, than those who merely neglect to vote? If so, their treason against the Constitution enhances their constitutional value. Without braving these absurd conclusions, we cannot deny that the body which consents to the admission of West Virginia is the legislature of Virginia." [38] Such a statement may appear to be nothing but traitorous affront to legalism, but it might better be considered as a suitable garment, a garment of good sense, clothing legalistic nakedness. At all events, in the whole course of the war, if highly and finely-drawn constitutional construction had been allowed to impede and hamper the operations of government at every step, one of two results would probably have followed — the union would have been destroyed, or the Constitution and the law would have given way to the mailed fist of a dictator.

Throughout the course of the war, Congress as a general rule co÷perated with the President; but the judgment of history must he that, though the legislators were earnest and though some of them were able, they gave little evidence of high-minded and inspiring leadership; at all events, the impressive fact is the way in which Lincoln dominated the scene. The committee on the conduct of the war was active and occasionally troublesome; its most prominent members, brought to the front by the very nature of war, were men of inflexible wills and ruthless determination; such men could not be kept in leading-strings. They sometimes interfered with Lincoln's plans. Critical and inclined to be domineering as some of them were, their criticism or opposition did not on the whole injure the union cause to which they were passionately devoted. The absence of a really dangerous conflict between the executive and the legislature is the significant fact. It is impossible to expect several hundred legislators to carry on war in silence.

To reconcile all the orders of the President or the acts of Congress during the war with the constitutional limitations normally operative in time of peace is quite impossible. We may of course avoid the task altogether by asserting that war of itself relieves the government from normal restrictions; and this is much like saying whatever the government finds it necessary to do is constitutionally justified — inter arma silent leges. The outstanding fact, however, is not the occasional or frequent breach of particular clauses in the Constitution, but the effort not to disregard them altogether. And even more noticeable is the continuous open discussion and debate. Lincoln did not favor the incarceration of everybody not agreeing with him; he believed it necessary to repress those persons actually endangering the success of the union arms. Most important of all, elections were held, the people expressed their will through the ballot-box, legislatures met, congressmen indulged in prolonged debate, democratic government was not broken down, and democratic public opinion was triumphant.

That a president armed with the "war power" may some day wreck the whole constitutional system is theoretically possible, and the dictator, if he ever appears, may discover precedents for tyranny in the conduct of Lincoln. But one thought continues to force itself upon us and to that thought the reader's attention has already been called: it is not a written constitution, not the slogan a government of laws and not of men, not formulated doctrines, but the spirit of a people which is actually potent; without a democratic-minded people democratic government is at the best a hollow pretense. Despite Lincoln's failure now and again to follow the letter of the law, the sober judgment of history must be that his main purpose was to save democracy, not to ruin it. And the prominent feature of the whole dreadful struggle is not what was done illegally but what was not done at all.[39] The single most important fact in American constitutional history is that democracy and law survived a desolating and destructive civil war.

Certain congressional measures which were passed during the war and were incidental to the main effort to win victory on the battlefield deserve attention: the establishment of a national banking system, the issuing of national paper currency — the greenbacks — , and the forcing of the state banks to abandon the practice of issuing notes to circulate as currency. The government did not order the state banks to cease the practice, but placed a tax on their notes (1865, 1866), and thus under the guise of using the taxing power the desired result was reached; this act was upheld by the Supreme Court,[40] as was also the greenback act [41] after much tribulation. The national banking act could, of course, find fairly firm footing on the precedents of earlier years. But the important matter is not so much the question of the constitutionality of these measures as the fact that the things were done. The acts illustrate natural expansion of actual governmental activity stimulated by the necessities of war. The government now occupied a wider field than before the war; people looked with equanimity on the activities of the national government; states' rights, a term improperly used as synonymous with state sovereignty, was a term of reproach.

The general constitutional effects of the Civil War are in some respects perfectly evident: slavery was wiped out; the house was no longer divided; the institution which had been the basis of sectionalism in its most dangerous aspects was gone. The nation existed as a political or legal fact, no longer to be threatened by state sovereignty. The actual national character and quality of the union had henceforth opportunity for expression not only in political affairs but also in social and economic development. The active energy of millions of men who were engaged in the struggle to maintain union created a new subconscious sense of national wholeness, long delayed in the south by the pains and penalties of Reconstruction. This common co÷perative effort probably prepared men of action and of energy for undertaking extensive corporate enterprises and for the work of integrating the nation industrially as it had been integrated legally


[1] Possibly this statement needs modification in one particular. The exchange of prisoners was not carried out with liberality. There was no real need for the ghastly prisons both north and south where scores of thousands suffered.

[2] Two years later (March 3, 1863) Congress passed an act, and Lincoln signed it, authorizing the issue of letters of marque.

[3] Prize Cases, 2 Black 635, 666-667 (1863). For further discussion, see Ford v. Surget, 97 U. S. 594 (1878).

[4] Prize Cases, 2 Black 635, 670 (1863). See the statement of the Court in the case of The Protector, 12 Wallace 700, 701-702 (1872): "Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated." Referring to the need of some public act of the political departments, the Court said the proclamation of intended blockade could be assumed as the date of beginning, and the proclamations of the President of 1865 and 1866 as dating the end.

[5] Richardson, Messages and Papers, VI, p. 16.

[6] Ex parte Merryman, Federal Cases, no. 9, 487 (1861). Another instance of a similar character arose in October, 1861. See J. G. Randall, Constitutional Problems Under Lincoln, pp. 162-163. The statement of the law, it should be noted, was not made by the Court but by the Chief Justice.

[7] The Constitution says, "The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." Art. 1, sec. 9, par. 2.

[8] Edward McPherson, The Political History of the ... Rebellion, pp. 154-162, contains the important documents, including the opinion of Chief Justice Taney, the opinion of Attorney-General Bates upholding the authority of the President, an excerpt from the pamphlet by Horace Binney likewise supporting the President, and a summary of an address by Theophilus Parsons taking the same position. "In the light of Civil War experience," says Professor Randall, "it is doubtful whether any clear-cut principle of undisputed legal authority can be said to exist in American jurisprudence with reference to this fundamental point of law." Randall, op. cit., p. 131.

[9] Message of December 3, 1861. Richardson, Messages and Papers, VI, p. 55.

[10] E. S. Corwin, "Martial Law, Yesterday and Today," Pol. Sci. Quart., XLVII, p. 104.

[11] It should be noticed that in the instance we are considering the writ was issued. Taney had the opportunity to express his opinion. But the writ was disobeyed; its privilege was suspended.

[12] Important cases have in recent years thrown some light on the question. In the case of In re Boyle, 6 Idaho 609, 611 (1899), the court said, "We are of the opinion that whenever, for the purpose of putting down insurrection or rebellion, the exigencies of the case demanded for the successful accomplishment of this end in view, it is entirely competent for the executive or for the military officer in command, if there be such, either to suspend the writ or disregard it, if issued." Perhaps this statement is better in law than it is in grammatical construction. See also Commonwealth v. Shortall, 206 Penn. 165 (1903). In Moyer v. Peabody, the question of a military arrest in Colorado by the Governor's order came before the federal Supreme Court. Justice Holmes, giving the opinion of the Court, said, "The facts that we are to assume are that a state of insurrection existed.... In such a situation we must assume that he [the Governor] had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State.... That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.... Public danger warrants the substitution of executive process for judicial process." 212 U. S. 78, 84-85 (1909). See also Sterling v. Constantin, 287 U. S. 378 (1932). See the discussion by J. W. Burgess, Political Science and Constitutional Law, I, p. 248.

[13] For discussion, see G. C. Sellery, "Lincoln's Suspension of Habeas Corpus as Viewed by Congress," Univ. of Wis. Bulletin (History Series), I, pp. 234-235, 264-265.

[14] Especially see Rhodes, History of the United States, IV, p. 230 and note 2; Randall, op. cit., p. 152.

[15] Am. Hist. Asso. Report for 1896, I, p. 358. Rhodes estimates the number in the three states above-mentioned may have been 175,000, though Holt, the Judge Advocate General, thought the total number in the order might be 500,000. Rhodes, History of the United States, V, p. 318.

[16] Richardson, Messages and Papers, VI, pp. 98-99.

[17] Randall (op. cit., pp. 137, 207, 210) discusses the decision of the Supreme Court in Mitchell v. Clark, no U. S. 633 (1884). Baldwin says, "The State courts disregarded the statute. If, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of Congress cannot make the act a lawful one. The Supreme Court of the United States had this question before them, but did not find it necessary to decide it. Had they done so, it would probably have been answered in the same way." S. E. Baldwin, The American Judiciary, p. 302. But see the statement in Mitchell v. Clark: "That an act passed after the event, which in effect ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt." no U. S. 633, 640.

[18] Ex parte Milligan, 4 Wallace 2 (1866).

[19] Rhodes, who made a very . careful examination of the Vallandigham affair, says, "True, he met with defeat by an overwhelming majority; but it was the victories of Meade and Grant that accomplished his overthrow, and they would have been potent in taking the sting from his words had he been roaming at will over his own State." Rhodes, History of the United States, IV, p. 252.

[20] Abraham Lincoln, Complete Works (J. G. Nicolay and John Hay, editors), II, pp. 345, 349.

[21] Professor Randall learnedly discusses the subject of confiscation of rebel property, but the subject is for us unimportant except as it strongly illustrates the difficulty of dealing legally with an insurrection which was carried on as a war. Could all persons within the disaffected area be considered enemies and could their property be seized without proof that the individuals in question were acting as enemies or that the property was of service to the enemy's hostile actions? "As there were hundreds of treason indictments but no punishments, so there were many confiscation cases, but only a small amount of property confiscated." Randall, op. cit., p. 288. Professor Randall speaks of the "feeling of irritation and injury on the part of a few despoiled owners"; making war by legislation appears in this case to have been a foolish failure. "The whole experience pertaining to the Civil War confiscations was such as to condemn the policy of promoting war by extreme punitive measures for the coercion of individuals." Ibid., pp. 291-292.

[22] The suppression of the Chicago Times (June 1, 1863), the New York World (May 18, 1864), and the Journal of Commerce (May 18, 1864), aroused discussion and called forth condemnation. The latter two papers acted, or at least asserted that they acted, under a misapprehension in publishing a forged document. The Times was a peculiarly bitter sheet directed by a brilliant and spectacular editor who fed the discontented with ample sustenance. The character of his animadversions may be seen from his reflections on Lincoln's "slip-shod", "loose-jointed", second inaugural; "by the side of it," said the gentle critic, "mediocrity is superb." Gideon Welles, the Secretary of the Navy, speaks in his Diary of the disadvantage of suppression: "The arrest of Vallandigham and the order to suppress the circulation of the Chicago Times in his military district issued by General Burnside have created much feeling. It should not be otherwise.... The President — and I think every member of the Cabinet — regrets what has been done...." Diary, I, p. 321. Of the suppression of the World and Journal of Commerce, he said, "These things are to be regretted. They weaken the administration and strengthen its enemies." Ibid., II, p. 38.

[23] Arver v. United States, 245 U. S. 366 (1918).

[24] Lincoln, Works, II, p. 389.

[25] Lincoln, Works, II, p. 227. In his annual message to Congress in December, 1862, Lincoln brought out clearly the necessity of national integrity because of the impossibility of disregarding physiographic fact. There was no possibility of severing the "national homestead." "In its adaptations and aptitudes it demands union and abhors separation. In fact, it would ere long force reunion, however much of blood and treasure the separation might have cost." Richardson, Messages and Papers, VI, p. 135.

[26] These difficulties are summed up in a telling way in the memorandum of an interview between the President and some border slave state representatives (March; 1862). Lincoln, Works, II, pp. 132-136.

[27] The tragic conditions of that harrowing summer and the tribulations of Lincoln's own spirit are seen in his words to a committee from the religious denominations of Chicago only ten days before the proclamation was issued: "What good would a proclamation of emancipation from me do, especially as we are now situated? I do not want to issue a document that the whole world will see must necessarily be inoperative, like the Pope's bull against the comet." Works, II, p, 234.

[28] Randall, op. cit., p. 384, quotes a note by R. H. Dana, Jr. in Wheaton, Elements of International Law, p. 441. Dana said, "... it would seem that, being a military measure by a commander-in-chief who had no general legislative authority over regions ... not in his possession, it could not operate further than as a military order. From that time, all slaves coming under the control of the forces of the United States in the manner recognized by the law of belligerent occupation, were to be free. If this is the correct view, ... it became therefore a question of fact, as to each slave and each region of the country, whether the forces of the Union had such possession as to give effect to the proclamation." Dana also says, "all the designated districts did at last come under the military occupation of the armies of the Union, in such sense as to effect the emancipation of all slaves in the strictest view of the law of belligerent occupation...." "These negroes", said a South Carolina court, "were not made free by the President's proclamation, in law, any more than they were in fact, because the President had not the right to make them free.... Emancipation ... was, in fact, accomplished by the conquest of the country...." "... slavery ... ceased to exist in the different parts of the State as they fell into the hands of the conqueror." Pickett v. Wilkins, 13 Richardson (S. C.) 366, 367-368 (1867). See Weaver v. Lapsley, 42 Alabama 601 (1868); Whitfield v. Whitfield, 44 Mississippi 254 (1870). There were some fine-drawn distinctions. See H. T. Catterall, Judicial Cases Concerning American Slavery and the Negro, III, p. 127.

[29] Lincoln, Works, II, pp. 102, 129, 132-135, 137, 204, 270-271. In an interview with border state representatives, March 10, 1862, Lincoln is reported as saying "He thought the institution wrong and ought never to have existed; but yet he recognized the rights of property which had grown out of it, and would respect those rights as fully as similar rights in any other property; that property can exist, and does legally exist. He thought such a law wrong, but the rights of property resulting must be respected; he would get rid of the odious law, not by violating the right, but by encouraging the proposition and offering inducements to give it up." Ibid., p. 135. He is said to have declared in 1864 "that he would be willing to be taxed to remunerate the Southern people for their slaves." A. H. Stephens, A Constitutional View of the Late War Between the States, II, p. 617.

[30] H. V. Ames, The Proposed Amendments to the Constitution, Am. Hist. Asso. Report for 1896, II, p. 217. The same kind of argument was used against the validity of the eighteenth and nineteenth amendments. See Rhode Island v. Palmer, 253 U. S 350 (1920); Leser v. Garnett, 258 U. S. 130 (1922).

[31] See Ames, op. cit., p. 296. Hollingsworth v. Virginia, 3 Dallas 378 (1798), gives the opinion of the Court to this effect in passing on the validity of the eleventh amendment.

[32] Virginia, Tennessee, Arkansas, South Carolina, Alabama, North Carolina, Georgia, and Louisiana.

[33] Constitution, Art. IV, sec. 3, para. 1.

[34] J. C. McGregor, The Disruption of Virginia, p. 274. Professor Randall says the vote was 18,862 to 514. Randall, op. cit., p. 452. But the majority is still suspicious, whichever computation be accepted.

[35] I know of no principle in constitutional law which would declare that a people cannot set up a government, when the government formerly theirs had fallen into the hands of insurgents and was no longer acting as the state government in the technical and constitutional sense.

[36] "Chase is strongly for it; Blair and Bates against it, the latter, however, declining to discuss it or give his reasons except in writing. Stanton is with Chase. Seward does not show his hand. My impressions are, under the existing state of things, decidedly adverse. It is a disturbance that might be avoided at this time and has constitutional difficulties." Gideon Welles, Diary, I, p. 205 (December 23, 1862). See also Ibid., pp. 206-209. Bates, the Attorney-General, later gave his formal opinion, declaring among other things, that no real legislature of Virginia had given its consent. Randall refers to Bates's manuscript diary which speaks of West Virginia as a "misbegotten, abortive State." Randall, op. cit., p. 459.

[37] McGregor, op. cit., pp. 307-311.

[38] Lincoln, Works, II, p. 286.

[39] See an illuminating article by J. G. Randall, "Lincoln in the Role of Dictator," South Atlantic Quarterly, XXVIII, pp. 236-252. "He did not pack his legislature, nor eject his opposition. There was no military 'purging' of Congress.... Elections were not forced ... though military 'protection' was in some few cases supplied. There was no Lincoln party constituting a superstate and visiting vengeance upon political opponents. Criminal violence was not employed sub rosa after the fashion of modern dictatorships." pp. 249-250. Professor Randall also states what those who knew America in 1917 and 1918 will probably agree to: "... the citizen [during the Civil War] was free to speak his mind against the government, far more so than during the World War." p. 251. Dunning, though bearing rather heavily on the frequent disregard of constitutional limitations, reaches the conclusion that public opinion and not the elaborate devices of the Constitution played the decisive role. W. A. Dunning, Essays on the Civil War and Reconstruction, p. 59.

[40] Veazie Bank v. Fenno, 8 Wallace 533 (1869). Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20 (1922).

[41] Legal Tender Cases, 12 Wallace 457 (1871). See the discussion in a later chapter.

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