834 



UNITED STATES. 



The views entertained by the public on the 

 Emancipation Proclamation, are a subject of 

 history, and referred chiefly to the question of 

 constitutionality. Those who sustained the 

 proclamation, claimed for the Government of 

 the United States that, in conducting the hos- 

 tilities in progress, it might exercise full sover- 

 eign and belligerent rights against the enemy; 

 that the familiar right of eminent domain em- 

 braced in its scope the authority to confiscate 

 all the property, real and personal, situated in 

 the insurgent district, together with the effects 

 of the inhabitants of that district in the loyal 

 territory ; that this right might be further de- 

 duced in time of war, from the clause of the 

 Constitution empowering Congress to provide 

 for the general welfare and common defence, 

 by which whatever powers are, in the judg- 

 ment of Congress, or of the President as com- 

 mander-in-chief of the army and navy, neces- 

 sary and proper against the enemy, are granted ; 

 that the law of nations established by modern 

 usage, conferred upon the North, as belliger- 

 ents, the universal right of confiscation and 

 emancipation ; and, finally, that there was no 

 limit upon the power of Congress to provide 

 the punishment of treason. 



Those who opposed these views replied, that 

 the extent of the sovereign powers of the Gov- 

 ernment of the United States is defined and 

 limited by the Constitution. In dealing with 

 its citizens, it can do no act not embraced with- 

 in the scope of the powers there granted, upon 

 which certain broad restrictions have been 

 placed, both by specific prohibitions, and by 

 the general rule of interpretation; that the 

 powers not expressly conferred are reserved to 

 the States. In this manner the sovereign 

 power of the United States is made up, de- 

 fined, and limited. It is a fundamental princi- 

 ple of law, that every man is presumed to be 

 innocent until he has been proved guilty ; and 

 nothing is more carefully provided for in the 

 Constitution than the separation of the legisla- 

 tive and judicial powers. Therefore Congress, 

 in the exercise of its powers of legislation, 

 cannot treat the inhabitants of a certain part 

 of the country as guilty of treason; for by its 

 very nature it is incompetent to distinguish be- 

 tween the guilt and the innocence of any por- 

 tion of its constituency. It can indeed learn 

 that the laws of the United States are impeded 

 by combinations of armed men ; it can provide 

 laws by which the courts may condemn the 

 guilty ; it can furnish means to the executive 

 for the enforcement of its authority; but it 

 cannot apply the penalties which it creates, 

 nor wield the force which it calls into the field, 

 against any class of citizens. 



As to the claim of war powers arising from 

 the doctrine of fielf-preservation, it was replied, 

 that history, and the theory of English liberty 

 brought to this continent by the colonists and 

 adopted as the corner stone of American Hills 

 of Rights, united to condemn this proposition. 

 There was no such thing as State necessity 



known to the Government. ^ The English lan- 

 guage had not been used in defence of that 

 doctrine for more than two hundred years. 

 The last time it was invoked it called forth the 

 most memorable struggle in English history, 

 and made wet the soil of England with the 

 blood of civil war. 



In the light of the usages of war among civ- 

 ilized nations, the question of emancipating 

 enemies' slaves stands thus. It was practised 

 in South America, by the chiefs of contending 

 factions, but without the sanction of recogniz- 

 ed Governments. By servile insurrection the 

 slaves in St. Domingo wrested from their mas- 

 ters a freedom de facto, which was afterward 

 granted to them by a decree of the French 

 Convention. In both instances the hostilities 

 were conducted in a manner long since repro- 

 bated by the public law, and by the consent of 

 civilized powers. The English Government in 

 the war of the American Revolution, and in 

 1812, sought to stir up the slaves and to seduce 

 them from their masters, but in both instances 

 the treaties of peace seem to recognize the ille- 

 gality of this expedient by provision for partial 

 or complete indemnity. The Government of 

 the United States has denied the right to inter- 

 fere with enemies' slaves, by acts and declara- 

 tions of the most solemn and public character ; 

 and Napoleon, in the Eussian war, refused to 

 avail himself of this means of injuring the en- 

 emy, on the express ground of the nature of 

 the warfare which would be its necessary re- 

 sult. These statements embrace the strongest 

 points urged by the opponents of the proclama- 

 tion. The views of the English Government 

 were expressed in the following letter of Earl 

 Eussell to Lord Lyons : 



FORBIGW OFFICE, Jan. l~th, 1863. 



MY LORD: The proclamation of the President of the 

 United States, enclosed in your Lordship's despatch of 

 the 2d instant, appears to be of a Terr strange nature. 



It professes to emancipate all slaves in places where 

 the United States' authorities cannot, exercising juris- 

 diction, now make emancipation a reality, but it does 

 not decree emancipation of slaves in any States or parts 

 of States occupied by Federal troops and subject to 

 Federal jurisdiction, and where, therefore, emancipa- 

 tion, if decreed, might have been carried into effect. 



It would seem to follow, as in the Border States, and 

 also in New Orleans, that a slaveowner may recover 

 his fugitive slave by the ordinary process of law, but 

 that, in the ten States in which the proclamation de- 

 crees emancipation, a fugitive slave arrested by legal 

 warrant may resist, and his resistance, if successful, is 

 to be upheld and aided by the United States' authori- 

 ties and the United States armed forces. 



The proclamation, therefore, makes slavery at once 

 legal and illegal, and makes slaves either punishable for 

 running away from their masters, or entitled to be sup- 

 ported and encouraged by so doing, according to the 

 locality of the plantation to which they belong, and the 

 loyalty in which they may happen to be. 



There seems to be no declaration of a principle ad- 

 verse to slavery in this proclamation. It is a measure of 

 war, and a measure of war of a very questionable kind. 



As President Lincoln has twice appealed to the judg- 

 ment of mankind in his proclamation, I venture to say 

 that I do not think it can or ought to satisfy the friends 

 of abolition, who look for total and impartial freedom 

 for the slave, and not for vengeance on the slave- 

 owner. I am, 4c., Signed, 'RUSSELL. 



