Atlantic Monthly, Vol. XII. July, 1863, No. LXIX. by Various

V >> Various >> Atlantic Monthly, Vol. XII. July, 1863, No. LXIX.

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What I assert is, that neither the number of slaves nor the magnitude of
the interests involved can properly influence the judgment in determining
the just construction of a clause in the Constitution, or properly set
aside a fair deduction from the wording of that clause as to its true
spirit and intent. What I assert is, that the framers of the Constitution,
in studiously avoiding the employment of the word slave, undeniably
abstained from admitting into that instrument anything which the use of
that word might have implied. Therefore the Constitution does not
recognize the ownership of one human being by another. In it we seek in
vain any foundation for the doctrine declared by Chief-Justice Taney, that
persons held to service or labor for life are articles of property or
merchandise.

In one restricted sense, and only in one, is slavery recognized by the
Constitution of the United States: as a system under which one man may
have a legal claim to the involuntary labor of another.

Therefore the question, whether Congress has the constitutional right to
emancipate slaves, resolves itself into this:--Can Congress
constitutionally take private property for public use and destroy it,
making just compensation therefor? And is there anything in the nature of
the claim which a master has to the service or labor of an apprentice, or
of a slave, which legally exempts that species of property from the
general rule, if important considerations of public utility demand that
such claims should be appropriated and cancelled by the Government?

This is the sole issue. Let us not complicate it by mixing it up with
others. When we are discussing the expediency of emancipation and of
measures proposed to effect it, it is proper to take into account not only
State constitutions and State legislation, but also the popular conception
of slavery under the loose phraseology of the day, and public sentiment,
South as well as North, in connection with it. But when we are examining
the purely legal question, whether, under the Constitution as it is and
under the state of public affairs now existing, Congress has the power to
enact emancipation, we must dismiss popular fallacies and prejudices, and
confine ourselves to one task: namely, to decide, without reference to
subordinate constitutions or legislative action, what the supreme law of
the land--the Constitution of the United States--permits or forbids in the
premises.

It will be admitted that Congress has the right (Amendments to
Constitution, Article 5) to take private property, with just compensation
made, for public use. And it will not be argued that a claim of one
inhabitant of the United States to the service of another, whether for a
term of years or for life, is property which has been constitutionally
exempted from such appropriation. It is evident, that, if a claim to the
service of a slave cannot constitutionally be so taken and cancelled,
neither can the claim to the service of an apprentice.

On the other hand, it is to be conceded, as a feature of the utmost
importance in this case, that, when property of any kind to a vast amount
is thus appropriated, the considerations which influence its appropriation
should correspond in magnitude to the extent of the interests at stake.
When the taking and cancelling of certain claims practically involves the
social condition of four millions of the inhabitants of the United States
and the industrial and financial interests of six millions more, it is
desirable that the considerations to justify so radical and far-reaching a
change should be in the nature of imperative official duty rather than of
speculative opinion or philosophical choice.

Let us proceed a step farther, and inquire if there be circumstances, and
if so, what circumstances, under which it becomes the right and the duty
of Congress to take and cancel the claims in question.

The controlling circumstances which bear upon this case may be thus
briefly stated.

1. The Constitution (section 8) confers on Congress certain essential
powers: as, to collect taxes, without which no government can be
supported.

2. The Constitution (same section) authorizes Congress to "make all laws
that shall be necessary and proper for carrying into execution" these
powers.

3. If Congress fail to carry into execution these powers, the Government
is set at nought, and anarchy ensues.

4. An insurrection, extending over eleven of the States comprising the
Union, now prevails.

5. Because of that insurrection, the essential powers granted to Congress
by the Constitution cannot be carried into execution in these eleven
States.

6. Because of the resistance offered by these insurrectionary States to
constitutional powers, it becomes the duty of Congress to pass all laws
that are necessary and proper to enforce these powers.

All this will be conceded; but a question remains. Who is to judge what
laws are necessary and proper to carry into execution the powers,
expressly granted by the Constitution, which are thus obstructed and
defeated?

This question has been determined by the highest legal tribunal of the
United States, speaking by the mouth of one who will be acknowledged to
have been her most distinguished presiding officer.

In the well-known case of McCulloch against the State of Maryland,[8]
Chief-Justice Marshall delivered the decision of the Supreme Court; and by
that decision the following principles were established:--

[Footnote 8: February term, 1819. 4 "Wheaton's _Rep._, 316.
Unwilling here to multiply words, I pray reference to the decision
itself.]

1. The construction of the words "necessary and proper" in the above
connection. The Chief-Justice says,--

"The term 'necessary' does not import an absolute physical
necessity, so strong that one thing to which another may be termed
necessary cannot exist without that other."

2. As to the degree of the necessity which renders constitutional a law
framed to carry a constitutional power into execution, the rule by this
decision is,--

"If a certain means to carry into effect any of the powers
expressly given by the Constitution to the Government of the Union
be an appropriate measure, not prohibited by the Constitution, the
degree of its necessity is a question of legislative discretion,
not of judicial cognizance."

3. But still more explicitly is the question answered, who is to be the
judge of the appropriateness and necessity of the means to be employed,
thus:--

"The Government which has a right to do an act, and has imposed
upon it the duty of performing that act, must, according to the
dictates of reason, be allowed to select the means."

Thus, then, the matter stands. The powers to lay and collect taxes, to
exercise authority over forts and arsenals of the United States, to
suppress insurrection, and various others equally essential, are expressly
given by the Constitution to Congress. It is the right and duty of
Congress to carry these powers into effect. In case of obstruction or
defeat of existing laws framed to that intent, it is the right and duty of
Congress to select such means and pass such additional laws as may be
necessary and proper to overcome such obstruction and enforce obedience to
such laws. In the selection of the means to effect this constitutional
object, Congress is the sole judge of their propriety or necessity. These
means must not be prohibited by the Constitution; but whether they are the
most prudent or the most effectual means, or in what degree they are
necessary, are matters over which the Supreme Court has no jurisdiction.
As Chief-Justice Marshall has elsewhere in this decision expressed it, for
the Supreme Court to undertake to inquire into the degree of their
necessity "would be to pass the line which circumscribes the judicial
department and to tread on legislative ground."

There must, of course, be congruity or relevancy between the power to be
enforced and the means proposed to enforce it. While Congress is to judge
the degree of necessity or propriety of these means, they must not be such
as to be devoid of obvious connection with the object to be attained.

In this case, the object to be attained is the enforcement, in the
insurrectionary States, of laws without which no government can exist, and
the suppression in these States of an insurrection of which the object is
the dismemberment of the Union.

But these laws are resisted, and this insurrection prevails, in those
States, and in those States only, in which the life-long claims to the
service or labor of persons of African descent are held under State laws.
In States where slaves are comparatively few, as in Delaware, Maryland,
Missouri, disaffection only prevails; while in States where the number of
slaves approaches or exceeds that of whites, as in South Carolina,
Alabama, Georgia, insurrection against lawful authority is flagrant and
outspoken: the insurrectionary acts of these States being avowedly based
on the allegation that Slavery is not safe under the present
constitutionally elected President, and that its permanent preservation
can be insured by the disruption of the national unity alone.[9]

[Footnote 9: The Secession Ordinance passed the Convention of
South Carolina December 20, 1860. The next day, December 21, the
Convention adopted the "Declaration of Causes" which led to that
Secession. This document declares, as to the non-slaveholding
States, that they have "denounced as sinful the institution of
Slavery"; that they have "united in the election of a man to the
high office of President of the United States whose opinions and
purposes are hostile to Slavery," and who declares that "the
public mind must rest in the belief that Slavery is in the course
of ultimate extinction." And it winds up with this
assertion:--"All hope of remedy is rendered vain by the fact that
the public opinion of the North has invested a great political
error with the sanctions of a more erroneous religious belief."

These, first put forth by South Carolina, afterwards indorsed by
each seceding State, are the causes officially declared to have
produced, and which are held to justify, the present
insurrection.]

All this is matter of history. And there would be as much propriety in
denying the connection between the sun and the light of day, as that
between Slavery and the Rebellion.

There _is_ a question upon which men differ: namely, whether emancipation
is the most prudent or the most effectual means to enforce violated law
and suppress the insurrectionary movement.

It is my opinion that a majority of the people of the loyal States
believe, at this moment, that emancipation is the necessary and proper
means to effect the above objects. But whether this opinion be well
founded or not is immaterial to the present question. According to
Chief-Justice Marshall's decision, when it is the right and duty of the
Government to perform an act, (as here to enforce law and suppress
insurrection,) it "must, according to the dictates of reason, be allowed
to select the means." If Congress believes, that, in order to enforce law
and suppress insurrection, it is necessary and proper to take and cancel
all claims to life-long service or labor held in the Slave States, and if
claims to service or labor, whether for years or for life, held by one
inhabitant of the United States against another, be a species of property
not specially exempted by the Constitution from seizure for public use,
then an Act of Emancipation is strictly constitutional.

Congress is to be allowed to select the means; Congress is to be the judge
of the necessity and propriety of these means: Congress, not the Supreme
Court; not even the People in their primary meetings; but the People
constitutionally represented in their National Legislature; the People,
speaking by the voice of those whom their votes have elected to that
Legislature, there to act for them.

If Congress believes that Emancipation is no longer a question of
sectional interference, but of national preservation, it has the right to
judge, and the constitutional right to act upon that judgment. And if
Congress can properly allege, as motive for taking and cancelling a
multitude of life-long claims to service, the preservation of the national
existence, can a consideration of greater magnitude be imagined for any
legislative act?

In proceeding, however, to consummate such a measure, it is evidently most
fitting and proper, that, in the preamble to an Act of Emancipation, there
should be set forth, lucidly and succinctly, the causes and considerations
which impelled to so solemn and momentous an act.

As to the just compensation provided by the Constitution to be paid, when
private property is taken for public use, it is here to be remarked,--

1. If, when a minor is drafted, a father or an apprentice-master has no
claim against the Government for service lost, it may be argued with some
plausibility, that, under similar circumstances of public exigency, a
slave-owner has no claim when his slave is freed. But the argument fairly
applies only in cases in which a slave is drafted for military service,
and returned to slavery when that service terminates. In case of wholesale
taking and cancelling of life-long claims to service, a fair construction
of the Constitution may be held to require, as a general rule, that just
compensation should be made to the claimants.

2. But to Congress, by the Constitution, is expressly given the power to
declare the punishment of treason, without any limitation as to the
confiscation of personal property, including, of course, claims in the
nature of choses in action. Congress may, therefore, take and cancel
claims to service owned by Rebel slave-owners without any compensation
whatever. Under the feudal law, a serf, owing service to a noble guilty of
treason, became, because of his master's guilt, released from such
service.

3. If, because of the present insurrection, set on foot by claimants of
service or labor, such claims, from precariousness of tenure or otherwise,
have diminished in market-value, that diminution may be properly taken
into account in estimating just compensation.

These various considerations converge to this,--that a Preamble and Act of
Emancipation, somewhat in the terms following, may be constitutionally
enacted.

_A Bill to emancipate Persons of African Descent held to Service
or Labor in certain of the United States._

Whereas there is now flagrant, in certain of the United States, an
insurrection of proportions so gigantic that there has been
required, to hold it in check, an increase of the army and navy of
the United States to an extent seldom paralleled in the history of
the world;

And whereas, because of the said insurrection, the execution of
the laws for collecting taxes, and of various other laws of the
United States, heretofore enacted by the Congress in the just
exercise of their constitutional powers, has been, for more than
two years past, and still is, obstructed and defeated throughout
the insurrectionary States;

And whereas it is the right and duty of the Congress to make all
laws which shall be necessary and proper for carrying into
execution the said constitutional powers;

And whereas the said insurrectionary portions of the Union consist
exclusively of States wherein persons of African descent are held
in large numbers to involuntary service or labor,--the white
inhabitants thereof basing their insurrectionary acts upon the
assumption that the security and perpetuation of such involuntary
servitude require the disruption of the national unity, and the
establishment, on a portion of the domain of the United States, of
a separate and independent government;

And whereas a large portion of the said persons of African
descent, so held in servitude, contribute greatly, so long as such
involuntary services are thus exacted from them, to the aid and
comfort of the said insurrectionists, laboring for their behoof on
their fortifications, and for the supply of their commissariat,
and otherwise giving strength and support to various
insurrectionary acts;

And whereas, in an emergency so urgent as that which is now patent
to the world, it is the duty of the Congress to place at the
disposal of the Executive branch of the Government, for the common
defence, the utmost power, civil and military, of the country, and
to employ every means not forbidden by the usages of civilized
warfare, and not in violation of the Constitution, that is placed
within their reach, in order to repress and to bring to a speedy
termination the present protracted and desolating insurrection;

And whereas it appears from the above recitals, that the
existence, throughout certain of the United States, of a
labor-system which recognizes the claims of one race of men to the
involuntary services of another race (always a moral wrong) has
now shown itself to be destructive of the supremacy of the laws,
and a constant menace to the Government, and that the continuance
of such labor-system imminently jeopardizes the integrity of the
Union, and has become incompatible with the domestic tranquillity
of the country;

And whereas it has thus become evident that claims to the
involuntary service or labor of persons of African descent ought
not to be possessed by any inhabitant of the United States, but
should, in the just exercise of the power which inheres in every
independent government to protect itself from destruction by
seizing and destroying any private property of its citizens or
subjects which imperils its own existence, be taken, as for public
use, from their present possessors, and abrogated and
annulled,--just compensation being made to so many of the said
possessors of such claims as may demand it, and as may by their
loyalty be entitled thereto, for the claims so abrogated and
annulled; therefore,

Be it enacted by the Senate and House of Representatives in
Congress assembled, that from and after the ---- day of ---- next
all claims to the services or labor of persons of African descent,
who shall then be held to involuntary service or labor in any of
the States of the Union under the laws thereof, be and the same
are hereby taken by the Government of the United States. And the
said claims are hereby abrogated and annulled. And all persons of
African descent within the United States, who shall, on the
said ---- day of ---- next, be held to involuntary service or
labor, except for crime of which the party shall have been legally
convicted, shall be released and emancipated from such claims in
as full and complete a manner as if the same had never existed;
the said release and emancipation to take effect from and after
the said ---- day of ----, thenceforth and forevermore.

And be it further enacted, that the faith of the United States be
and the same is hereby pledged for the payment of just
compensation to all persons who shall, on the said ---- day
of ----, hold such claims to service or labor; provided, that such
persons shall make application for such compensation in the form
and manner hereinafter prescribed, and provided further, that said
persons shall have been, throughout the present insurrection, and
shall continue to the close of the same, true and loyal to the
Government of the United States, and shall not, directly or
indirectly, have incited to insurrectionary acts, or given aid or
comfort to any persons engaged in the insurrection aforesaid.

[Here should follow provisions in regard to the manner of
application, the mode and rate of compensation, etc.]

It will probably be found that the number of slaves for the remuneration
of whose lost services applications will be made by loyal claimants, under
such an act, will scarcely reach the number emancipated in 1834 by Great
Britain, which was about seven hundred and seventy thousand; and that the
sum paid by England to colonial slave-owners, namely about a hundred
millions of dollars, (the probable cost of eight weeks war,) will suffice
as just compensation for all the services due to loyal claimants thus
taken and cancelled.[10]

[Footnote 10: The exact number of slaves emancipated in the British
colonies was 770,390; and the total amount of indemnity was
L19,950,066 sterling.]

An act couched in the terms here proposed could not be declared
unconstitutional by the Supreme Court, without a shameless encroachment on
legislative ground, nor without a reckless reversal of principles as well
established, and of as high authority, as any which form the basis of
constitutional law.

Those who demur to the passage of an act which meets the great difficulty
before us broadly, effectually, honestly, and in accordance with the
dictates of Christianity and civilization, would do well to consider
whether, in the progress of this insurrectionary upheaval, we have not
reached a point at which there is no prudent alternative left. By the
President's Proclamation some three millions of slaves have been already
declared free. Sundry laws of Congress have emancipated several hundred
thousands more. There remain legally enslaved probably less than three
quarters of a million,--chiefly scattered along a narrow border-strip that
is coterminous, North and South, with Freedom or Emancipation,--partly
dotted in isolated parishes or counties, surrounded by enfranchised
slaves. Can we maintain in perpetuity so anomalous a condition of things?
Clearly not. At every step embarrassments innumerable obstruct our
progress. No industry, no human sagacity, would suffice to determine the
ten thousand conflicting questions that must arise out of such a chaos.
Must the history of each negro be followed back, so as to determine his
_status_, whether slave or free? If negroes emancipated in insurrectionary
States are sold as slaves into Border States, or into excepted parishes or
counties, can we expect to trace the transaction? If slaves owned in
Border States, or in excepted parishes or counties, are sold to loyal men
in insurrectionary States, are they still slaves? or do they become free?
Are we to admit, or to deny, the constitutionality of Border-State laws,
which arrest, and imprison as vagrants, and sell into slavery to pay
expenses of arrest and imprisonment, free negro emigrants from
insurrectionary States?[11] But why multiply instances? The longer this
twilight of groping transition lasts, it will be only confusion the worse
confounded.

[Footnote 11: If, hereafter, Attorney-General Bates's decision,
that a free negro is a citizen, be sustained by the Supreme Court,
then, should the question come up before it, the State laws above
referred to will be declared unconstitutional. But meanwhile they
have not been so declared, and are in force.

The negro-excluding laws of Indiana and Illinois are in the same
category.]

We cannot stand still. Shall we recede? We break faith solemnly plighted;
we submit, before the world, to base humiliation; we bow down to a system
which the voice of all Christendom condemns; we abandon the struggle for
nationality, and consent, for ages, perhaps, to a dismembered country.
Shall we advance? There is but one path--the plain, truth-lighted, onward
path--to victory and to peace.

* * * * *

REVIEWS AND LITERARY NOTICES.

_Substance and Shadow: or, Morality and Religion in their Relation to
Life._ An Essay on the Physics of Creation. By HENRY JAMES. Boston:
Ticknor & Fields.

Any one tolerably conversant with either the religion or the philosophy of
the last twenty-five years, as displayed in the current literature, must
have been convinced that both had left their ancient moorings, never again
to find them, and were floating about perilously in quest of a new
anchorage. We read the "Essays and Reviews" and "The Pentateuch and the
Book of Joshua critically Examined," and the replications long-drawn-out
from High Church and Low, with a decided impression that the combatants
are skirmishing on an immense ice-field, which is drifting them all
together into other and unknown seas. What cares any man profoundly
conscious of the wants both of the intellect and the heart whether Moses
wrote the Pentateuch or not, and if so, whether he was as accomplished a
geologist as Professors Buckland and Lyell? Admit that the whole letter of
Scripture comes from God, even to the vowel-points, by what laws and
methods shall we expound it so as to put an end to the internecine war
between Faith and Reason, between Religion and Philosophy?

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