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and some few cases under Nullity of the Act. General Butler's rule in New Orleans. Rather, it was set aside, and orders were promulgated by officers of all grades, forbidding slaves within their linesthus denying them the protection guaranteed by the act and bidding the law defiance,* Seizures for confiscation were made in New York early in September, under the act of July 30th, 1861. This professedly provided "for the collection of duties on imports and for other purposes," but was particularly designed to confiscate rebel property in vessels or afloat. Section 6th of this act we may quote:

Seizures of Rebel

'Sec. 6. And be it further enacted, That from and after fifteen days after the issuing of the said proclamation, as provided in the last foregoing section of this act, any ship or vessel belonging in whole or in part to any citizen or inhabitant of said State or part of a State whose inhabitants are so declared in a

state of insurrection, found at sea, or in any part of the rest of the United States, shall be forfeited to

the United States."

Under the provisions of this law the Surveyor of the port of New York proceeded

against numerous parties; but, the interpretation given to the act by the Secretary of the Treasury in regard to forfeitures and penalties, as well as transfers and sales, real or fictitious, made by owners of the property seized, served to render the law almost inoperative. The processes for its enforcement revealed the fact that there existed, in commercial circles, a large and powerful class who were ready to oppose every act for the sequestration or confiscation of the property of disloyal Southern men. Having been associated with the South in business relations, their commercial sympathies were stronger than their loyalty; and, though comparatively silent during the early stages of the rebellion, they were not therefore harmless, for they became the nucleus of the party which resolved that treason should not work attainder.

* A Kentucky court, sitting in judgment on the law, in October, 1862, declared it to be unconstitutional and set aside the confiscation ordered in the case tested. The Emancipation act proclaimed September 23d, 1862, would have been deemed unconstitutional by the same ruling.

Opposition to the ad ministration.

This class grew stronger with the slow progress of the Federal arms. In the fall of 1862, it took the open form of opposition to the Administration, and proved strong enough to elect several of its candidates to the responsible positions of Governors, Congressmen, &c. The distinctive issue assumed was the President's exercising unconstitutional powers in conducting the war-in suspending the writ of habeas corpus-in arresting and incarcerating citizens without examination or trial—in forbidding the publication of newspapers by excluding them from the mails-in the promulgation of edicts of confiscation and emancipation: all of which this opposition assumed were usurpations of power." These issues were galvanized by the ever popular cry of "danger to liberty;" hence, soon gained the strength of a powerful movement in their support.

The question of the right to suspend the privileges of the habeas corpus writ already has been adverted to (Judge Taney's counter opinion being given at length in the Appendix to this volume). The defense relied upon by the President, on the other counts of this

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'unconstitutional" indictment, like that assumed in the habeas corpus proceedings, was simply his right and duty, in time of war and great public danger, to use every proper and necessary power to suppress treason, restrain


The President's

revolution and overthrow
conspiracies for evil.
his two capacities of Chief
Executive of the Constitution and Laws, and
Commander-in-Chief of the Army and Navy,
he not only is properly empowered to enforce
obedience to the law of the land, but is re-
quired to do so by his oath of office. His
failure to perform these functions is cause for
his impeachment. In time of national dan-
ger and war-the Constitution never contem-
plated, nor expressly provided, for, a state of
insurrection and revolution-he is expected
by usage, and enjoined by law, to assume
such powers as are absolutely necessary for
the public safety-to control interests and
persons both at home and abroad, and to su-
persede, to the extent that he shall judge ne-
cessary, domestic or foreign law, for military
reasons. (Const. U. S., Art. 2: 17 John. R.,

The President's



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

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

He may stop or arrest presses
or persons giving information,
or aid, or comfort, to such do-

The President's



conrt-martial and punish all persons aiding an armmestic or foreign enemy. He may arrest, try by

ed foreign or domestic foe in any manner, such

judgment being approved by Congress."

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

The Northern communi

Fears of Foreign Intervention.

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

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

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

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


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

Mr. Seward's Circular to the Governors.

Mr. Seward's Circular to the Governors.

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

manufacture and commerce in | for general defense, there is foreign countries, resulting every reason to believe that from the insurrection they have Congress would sanction what inaugurated at home, they seek to involve our com- the State should do, and would provide for its reimmon country in controversies with States with which bursement. every public interest and every interest of mankind require that it shall remain in relations of peace, amity and friendship. I am able to state for your satisfaction that the prospect for any such disturbance is now less serious than it has been at any previous period during the course of the insurrection. It is, nevertheless, necessary now, as it has hitherto been, to take every precaution that is possible to avoid the evils of foreign war, to be superinduced upon those of civil commotion which we are endeavoring to cure.

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

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

The President is putting forth the most diligent efforts to execute those measures, and we have the great satisfaction of seeing that these efforts are seconded by the favor, aid and support of a loyal, patriotic and self-sacrificing people, who are rapidly bringing the military and naval force of the United States into the highest state of efficiency. But, Congress was chiefly absorbed, during its recent extra session, with those measures, and did not provide as amply as could be wished for the fortification of our sea and lake coasts. In previous wars the loyal

States have applied themselves by independent and separate activity to the support and aid of the Federal Government in its arduous responsibilities. The same disposition has been manifested in a degree eminently honorable by all the loyal States during the present insurrection.

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"I have the honor to be, sir,

"Your obedient servant,


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



If England and France held aloof from the fraternal embraces of the emissaries of a Slave Confederation, it is to be presumed that the firm and confident attitude of the Federal

Government exerted more influence than the foreign powers cared to confess.

Federal Letters of
Marque Refused.

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


Suppression of Newspapers.

finement up to October 30th, including the Baltimore Chief of Police, Marshal P. Kane, and the Board of Police Commissioners of that city. On the 30th of October most of the State prisoners were transported to Fort Warren, in Boston harbor—which thereafter became one of the regular receptacles of persons seized by orders from the Departments of State and of War.

The case of the Baltimore Board of Police.

It was during the months | shal, Sept. 18th, and its disloyal section sent of August and September to Fort McHenry); Ex-Governor Morehead, that a general suppression of Kentucky; Pierce Butler, an eminent lawwas made of disloyal newspapers in the North. yer of Philadelphia. Fort Lafayette, in New The offices of these obnoxious presses were York harbor, set apart for prisoners of State, visited by mobs and destroyed—the authori- | held about one hundred persons under conties in no instance interfering, so overwhelming was the endorsement of the acts of these self-constituted umpires. Only one case of personal violence occurred-that of the tarring and feathering (August 19th) of the editor of a paper in Essex county, Massachusetts. The persons composing these mobs were, to a considerable extent, responsible citizens, who acted without disguise. In New York city, August 16th, the Grand Jury presented several papers for hostility—all of the "Breckenridge" school of partizans. These journals were soon compelled to suspend publication or to change their tone to that of loyalty. In none of these instances did the General Government interfere or order the action: all was done by citizens or local authorities, if we except the denial, by the Post Office Department, of rights to mail facilities to the "New York Daily News." This denial was accompanied by forcible ejection of its issues from the mail-bags, which soon caused the suspension of the paper. The same proceedings were instituted against the New York "Journal of Commerce,” and thus compelled a change in its editorial tone. Both were rank opponents of the war, sedulously engaged in sowing

dissension and disaffection. The cause of these journals afterwards was adopted by the party in opposition to the Administration, as one of its strongest counts in its indictment of unconstitutional acts.

Arrest of Citizens.

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

The Police Commissioners were arrested, early on the morning of July 1st, by order of General Banks, then in command of the Department of Annapolis-headquarters at Baltimore. In justification of this exciting step, the Commanding-General issued the following announcement, explanatory of his course and of the purposes of his administration:


FORT MCHENRY, July 1, 1861. "In pursuance of orders issued from the headquarters of the army at Washington, for the preservation of public peace in this department, I have arrested, and do now detain in the custody of the United States, the late members of the Board of Police, Messrs. Charles Howard, William Gatchell, Charles Hinks and John W. Davis. The incidents of the past week afforded full justification for this order. The headquarters under the charge of the Board, when abandoned by the officers, resembled in some respects a concealed arsenal. After public recognition and protest against the suspension of the functions, they continued their sessions daily, Upon a forced and unwarrantable construction of my proclamation of the 28th ult., they declared that the police was suspended, and the police officers and men put off duty for the present, intending to leave

Numerous arrests of disloyal persons also transpired during the months named. The list of those incarcerated comprised Charles J. Faulkener, ex-Minister to France; Mayor Berrett, of Washington City, (who was soon after released on taking the oath of allegiance); the secession members of the Maryland Legislature, (which was closed by the Provost-Marterm of forty days from that date, or be liable to arrest as aliens and enemies. Under this decree many left, but the large majority of able bodied men, suspected of Union sentiments, were impress- the city without any police protection whatever. ed into the Confederate army.

They refused to recognize the officers and men

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