EMANCIPATION.
There are those who believe that the President's Proclamation will cease to be of any force at the close of the war, and that no slaves will have any right to their freedom by it except such as may be actually liberated by the military authorities.
There are others, who hold that the Proclamation has the force of law,—that by it every slave within the designated territory has now a legal right to his liberty,—and that, if the military power does not secure that right to him during the war, he may successfully appeal to the civil power afterwards.
If the Proclamation is a law, it must be conceded, that, like all the laws of war, it will cease to be in force when the war is closed. But if, like a legislative act, it confers actual rights on the slaves, whether they are able to secure them in fact or not, then those rights are not lost, though the law cease to exist. On the other hand, if it confers no actual rights on any who are beyond its reach,—if it is merely an offer of freedom to all who can come and receive it,—then those only who do receive it while the offer continues will have any rights by it when it has ceased to be in force.
The position of Mr. Adams on this subject seems to have been misunderstood. When his remarks in Congress are carefully examined, it will be found that he did not claim that the proclamation of a military commander would operate, like a statute, to confer the right of freedom upon all the slaves in an invaded country. But he asserted a general principle of international law,—that the commander of an invading army is not bound to recognize the municipal laws of the country,—that he may treat all as freemen, though some are slaves. And he claimed, that, in case of a servile war in this country, our army would have a right to suppress the insurrection by giving freedom to the insurgents. In regard to the effect of such a proclamation upon those not liberated by the military power, he expressed no opinion.
The precedents usually cited are not any more satisfactory. In Hayti, and in the South-American republics, emancipation became an established fact by the action of the civil power. In each case a proclamation by the military power was the initial step; but the consummation was attained by the fact that the same power afterwards became dominant in civil, as well as in military affairs.
Conceding, then, that the Proclamation is but a declaration of the war-policy, designed and adapted to secure a still higher end,—the preservation and perpetuity of our free institutions,—it is still claimed that the Government has the right to pursue this policy until Slavery is abolished, and forever prohibited, within all the Rebel States.
Though we speak of the Rebellion as an "insurrection," it has assumed such proportions that we are in a state of actual war. Nor does it make any difference that it is a civil war. It has just been decided by the Supreme Court of the United States, that we have the same rights against the people and States in rebellion, by the law of nations, that we should have against alien enemies. The property of non-combatants is liable to confiscation, as enemies' property; and it makes no difference that some of them are personally loyal. All the inhabitants of the Rebel States have the rights of enemies only. The recent cases of the Brilliant, Hiawatha, and Amy Warwick settle this beyond all question. There was some difference of opinion among the judges, but only on the question whether this condition preceded the Act of Congress of July, 1861,—a majority holding that it did, commencing with the proclamation of the blockade. So that it cannot be denied that we may treat the Rebel States as enemies, and adopt all measures against them which any belligerents engaged in a just war may adopt.
And no principle of the law of nations is more universally admitted than this,—that the party in the right, after the war is commenced, may continue to carry it on until the enemy shall submit to such terms as will be a sufficient indemnity for all the losses and expenses caused by it, and will prevent another war in the future. And to this end he may conquer and hold in subjection people and territory, until such terms are submitted to. And until then, the state of war continues. The right to impose such terms as will secure peace in the future is one of the fundamental principles of international law.
"Of the absolute international rights of States," says Mr. Wheaton, "one of the most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation. This right necessarily involves all other incidental rights which are essential as means to give effect to the principal end."