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and control of the master over the slave may thus be broken, for the time being, and the relation of master and slave is thereby suspended. This is by the legitimate effect of martial law — the law of force — which supersedes the municipal law of the State. Now if the slave avails himself of this subversion of the power and control of the master of this severance for the time being of the relation of master and slave — and departs without the limits where slavery is admitted, he will secure the permanence of his freedom, because, as I maintain, he cannot afterwards be claimed and returned under the fugitive slave clause of the Constitution and the laws of Congress. He acquired liberty, practically, without becoming a fugitive. He is not a fugitive if he avails himself of that liberty to go where he pleases, and so he cannot be sent back as a fugitive on the suppression of the rebellion. So also if the Government, during the time when the law of force is the governing power, removes him from the limits where the municipal law requires his servitude.
Upon the same principle, I do not doubt that the President, as Commander-in-chief, or a commanding general in the field, may, in the lawful exercise of hostilities, for the purpose of weakening the enemy, invite the slaves to come within the lines of the army, and assure them of protection, which may be made effectual by their removal beyond the subsequent operation of the municipal law.
A commander may invite all persons within the hostile lines to come within his camp, and to bring with them whatever gives strength to the enemy. And in regard to all slaves who should comply with such a call, the relation of master and slave would be actually severed, when they come within the limits where the law of force, adverse to the servitude under such circumstances, is the governing power. Coming within the lines under such a lawful exercise of military power, they could not be deemed fugitives, within the meaning of the Constitution; but would stand in the same category with slaves, brought within its limits by the march of the army. There might be a question, in both cases, whether loyal masters were not entitled to indemnity. That need not be settled at this time.
But all this has no tendency to sustain the proclamation. Military occupation — martial law — the law of the force exerted by the army — only suspends the municipal law for the time being. It does not subvert it permanently. Neither the commander of the army in the field, nor the President, can give to martial law any such extension, that it will subvert the municipal law, except so far as there has been, not merely a suspension, but an actual change in the existing state of things, by the operations of the war. . It is not in the nature of martial law to provide rules, prospectively, for governing the rights and duties of persons after itself shall have ceased to exist. What it has changed, is, of course, subject to the change, as far as it goes. What it has not changed, it cannot regulate for the future after it ceases. The law of force operates so long as the actual military force sustains it, but no longer. This is readily illustrated. The army, in the course of its march, occupies the land of an individual, and the officers take possession of his house, and are not trespassers. They take his crops and consume them, and are not trespassers. No action will lie against them at the time, or afterwards. He may, or may not, have a claim upon the Government for indemnity. When they remove, he cannot, of course, regain his crops which have been consumed, but the commanding officer has acquired no title to his house or farm, nor any right to regulate his occupancy or power over that property, which thus remains, after the war is over. His right to occupy and use was suspended by the war, and by the law of the force which drove him out; but it was only suspended, and he enters and holds under his old title. So it is with the crops not consumed, and with his furniture. So it may be with his slaves, who have been liberated from his control for the time being, and have been under the control of the military power; if they remain and give the master an opportunity to assert his old title.
This is all the emancipation which can be had in the course of the war; and if I could read the proclamation as extending no farther than such emancipation, I should have no controversy with any one who supported it. The opportunity to secure freedom in this way was, I think, substan
tially provided for before the proclamation, by orders directing military commanders not to return slaves who came within their lines. No proclamation was necessary for that purpose; but an additional order for their removal, so that they would be beyond the future control of their masters, might have been but an act of justice to them, especially if they had been actively engaged in aiding the prosecution of the hostilities on our part. A successful warfare would, upon these principles, make the emancipation one of large measure, sufficient to satisfy reasonable men. Taken in connection with the restriction of slavery in the territories, it would probably give a death-blow to slavery.
But those who have so vigorously urged “ the adoption of a policy” and the issue of a "proclamation of emancipation,” do not consider this the limit of the emancipation which is to be effected by it. I understand that you give it a much broader scope, as I believe you are authorized to do. You say that it threatens the people in each rebel State " with the emancipation of all their slaves" and speak of “ the day when every slave under the rebel power shall be (so far as our Government is concerned) irrevocably free;" and it is, doubtless, for this reason that you call it " the great proclamation.” It is, of course, to give freedom after the return of peace, (if it does not prevent our arms from being victorious,) to slaves who have never been within our power during the war, - to slaves in the interior, who may never have heard of the proclamation, - to slaves where martial law never had an existence,- to slaves who, during all the war, and up to the return of peace, were as perfectly and as peaceably under the full control of their masters as they were before the war commenced; and who, during the war, had been engaged in the same services which they had performed before war existed; and it pledges the military and executive power to maintain the freedom thus bestowed. It is to operate therefore as a decree, or law, for the emancipation of probably half, perhaps more, of the slaves in the States designated, not as a punishment of rebels, for it operates on friends also, - not because martial law ever reached them, - not because there was in fact any subversion of the power and control of the master during the war, — and not because such emancipation
was necessary to the prosecution and success of the war;
shows the wide and almost entire difference between this exercise of power, and its exercise in those cases which you put by way of illustration and argument, in the above extracts; in each of which, respectively, the power to destroy and the power to seize and take, is a power to act during the war, and one which cannot lawfully be exercised after the cessation of hostilities, even upon an order issued prior to that time. The President may “ bombard cities,” “burn villages,” and “mow down regiments of men in battle,” in the actual prosecution of a war; but he can do none of those things, nor order that they shall be done, at the close of the war. He, or a military commander, may seize private property, when needed for military purposes, while the war lasts; he may “ take cotton, provisions, forage, horses, and all sorts of cattle, from the loyal as well as the disloyal,” if the necessity of the hour require it, in the prosecution of the campaign; but he cannot perpetuate a necessity so to seize and take after the war is over, even by an order issued before its termination. Perhaps the military authorities may seize and take provisions, &c., to supply the necessities of the army, after the close of the war, until it can be withdrawn; but the proclamation does not propose to emancipate the negroes, for the time being, to supply the necessities of the soldiers. Your argument is a very perfect non sequitur.
of illustrating your own views, and the difference between you and Dr. Cheever, — who I understand would have the proclamation denounce slavery in good round terms, as well as exterminate it, — you refer to the power of the Mayor of New York, under the city charter and acts of the Legislature, to blow up buildings in order to prevent the spreading of fire. Now suppose Mayor Opdyke, during the time that a fire is raging, should order a few buildings to be blown up to check it; and should further order, that as soon as the fire was subdued, a few squares more should be blown up, by way of preventing the possible breaking out of another fire, at some indefinite time afterwards, do you not think that the people would“ blow him up ?”
I give your "common sense” the credit of perceiving, by this time, that you have been talking, very oracularly, about matters respecting which you are profoundly ignorant; and