But you denounce these acts as unconstitutional. To a bare, unsupported assumption it might be enough to say that the constitutionality of all these acts has been again and again affirmed by authorities of far greater weight than yours or mine—by scores of statesmen and judges of the highest eminence in the land. But I will go a little into the question.
I assert that it is perfectly constitutional to repress an armed rebellion by force of arms. It is the sworn duty of the Administration under the Constitution to do so. And all the acts you condemn come in one way or another under powers delegated to Congress and to the Executive. The constitutional right to make war carries with it the constitutional right to employ all the means sanctioned by the laws of war. This is the amply sufficient justification of each and every one of the measures you denounce—the Emancipation Proclamation, the Confiscation acts, the suspension of habeas corpus, and the arrest of traitorous abettors of the rebels.
As to the Proclamation—whether it is to be regarded as in its own proper effect conferring the legal right to freedom, or whether it is to be taken simply as a notification to the rebels (and to the slaves also, so far as it should get to their knowledge) of what the President, in his supreme military capacity, was about to order and enforce, as our armies might come into contact with the slaves—is a question not necessary to determine here. But no intelligent man needs be told that even in a war with a foreign enemy, with honorable belligerents, it is always a matter lying rightfully in the discretion of the commander of an invading army to proclaim and secure the emancipation of slaves; and in a rebellion like this it is the height of absurdity, or of something much worse than absurdity, to quarrel with the military policy of depriving the rebels of the services of loyal men forced to dig trenches and minister supplies to them. What constitutional right have rebels—in arms for the overthrow of the Constitution—to be exempted from the operation of the laws of war? Who but a rebel sympathizer would challenge it for them?
As to the Confiscation acts—it is enough to say that the Constitution gives Congress power 'to declare the punishment of treason.' Confiscation of property—as well as forfeiture of life—is a punishment attached to this great crime in the practice, I believe, of every Government that has existed. The rebels confiscate all the property of men in the South loyal to the Union, on which they can lay their hands; and their practice can be condemned by us only on the ground that the crime of rebellion makes all their acts in support of it criminal. But as you have no word of condemnation for the rebellion, so you have none for their confiscation acts. You would throw the shield of the Constitution only over the property of rebels. Loyal men, however, are of opinion that as the hardship of paying the expenses entailed by this accursed rebellion must fall somewhere, it is but just it should fall as far as possible on the rebels, rather than on us. If confiscation of rebel property chance to bear hard on the innocent children of traitors, it is no more than what constantly chances in time of domestic peace, in the pecuniary punishment of crimes far less heinous than treason; and loyal men see no good reason why the hardship should not fall in part on the children of traitors, rather than wholly (as in part it must) on our children.
As to the suspension of the privilege of the writ of habeas corpus: many foolish and disloyal people, out of the folly and disloyalty of their hearts, talk as if the thing itself were something wicked and monstrous; although the Constitution plainly provides that it may be done, 'when, in cases of rebellion and invasion, the public safety may require it.' Who is to judge of the necessity, and who is to exercise the power of suspending it, the Constitution does not declare; and in the silence of the Constitution and in the absence of any legislation on the point, the President might well presume that the discretion of exercising a power constitutionally vested somewhere, and designed to be exercised in emergencies of public peril, liable to arise when Congress might not be in session, was left to him. At all events, he took the responsibility of deciding that the public safety required its exercise. Congress has since justified his course, and legalized the power in his hands. The loyal people of the nation approve its action.
And finally, the constitutional right in certain cases to suspend the ordinary privilege of the writ of habeas corpus carries with it, of course, an equally constitutional right to make what you call 'arbitrary arrests.' The very object of granting the power to vacate the privilege of the writ is to enable the Executive to hold in custody such persons as it may judge the 'public safety requires' the holding of—without its purpose being frustrated by judicial interference. But the power to hold in custody is utterly nugatory, if there be no power to take into custody. To suppose that the Constitution grants the one, but denies the other, is to suppose it self-stultified by contradictory provisions—and that in a case where the public safety in time of imminent peril is concerned. The only consistent and sensible view of the Constitution is, that as the validity of the writ of habeas corpus is the ordinary rule, and its suspension the extraordinary exception—so the power to make arrests by civil process only is the ordinary rule, and the power to make arrests by military or executive authority is the extraordinary exception—both exceptions alike holding 'when, in cases of rebellion or invasion, the public safety may require.' In such cases the ordinary guarantees of personal liberty are constitutionally made to give way to the operation of the extraordinary powers demanded by the necessities of the state. It has always been so in all Governments; and every Government—unless it suicidally abnegate its highest function and supremest duty, that of maintaining itself and securing the national safety—must, in time of rebellion and civil war, possess such powers, powers to repress and prevent, in the first moment of necessity, what, if let go on, it might be too late to cure by judicial or any other process.
The rebels arrest, imprison, or banish those who are disaffected to their cause. They have a right to do so, provided their rebellion itself be justifiable; although they have made themselves objects of just execration and abhorrence by the abominable atrocities of cruelty and murder they have in thousands of instances perpetrated upon those whom they knew or suspected to be faithful to the Union. Your sensibilities, however, are excited only in behalf of the traitors among us, who have done more, and are doing more, to aid and comfort the public enemy, and to weaken the military power of the Government, than whole divisions of rebels in arms. While millions of good patriots stand amazed at the extraordinary and unparalleled leniency with which the Government has for the most part dealt with these traitors—that is, done nothing with them—you and your associates are fierce in your denunciations of its action in the few cases in which it has temporarily arrested them; and even the requiring of them to take the oath of allegiance as a condition of release, has been made matter of bitter invective. What but disloyalty to the national cause, what but sympathy with the rebels, can prompt such denunciations—made, too, with a view to stir up popular disaffection to the Government?
To sum up: I have shown that all the acts you denounce are as perfectly constitutional as they are just and necessary in principle, and sanctioned by the practice of all Governments.
But even if it were otherwise; even if the framers of the Constitution—never contemplating the possibility of such a crisis as the present—had embodied in that instrument no provision of extraordinary powers for such an exigency—none the less would it be the duty and the right of Congress and of the Executive to adopt whatever measures they should judge the public safety to require. What the Constitution had not granted they would be bound, if necessary, to assume; and even if the Constitution stood in the way, they would be bound to go over it in order to save the national existence. It is one of those cases in which necessity gives sovereign right. It is doubtless a very illegal thing to blow up people's houses, yet what civic magistrate, not a fool, would hesitate to do it when nothing else could arrest the conflagration of a city; and what court of law is there (outside of Liliput, where poor Gulliver was condemned to death for saving the royal palace by an illegal fire engine) so foolish as to sustain an action against the magistrate in such a case? What must be thought, then, of the good sense and loyalty of those who would interpose the Constitution to prevent the suppression of a gigantic rebellion, which puts the Constitution, the Government, and the national existence in imminent peril of destruction? Who, that knows anything which a man of decent intelligence is bound to know, but knows that 'the salvation of the republic is the supreme law?' On this principle the old Revolutionary Congress went, when, without a particle of delegated warrant from the several States, it assumed to act for the whole people as a nation, and, among other things, invested Washington with nearly dictatorial powers to carry on the war—a principle that Washington had already before acted on in more than one case of summary dealing with the Tories of his day. The sovereign sense of the nation sustained this assumption, and gave it the validity of supreme law. And I believe the nation would now sustain the Government in the assumption of any powers necessary to the putting down of the rebellion, even if ample powers were not already granted in the Constitution.
History has no record of a conspiracy more treasonable, flagitious, and infamous than that in which this rebellion originated; no record of a rebellion more foul, more monstrous, more wicked. The great heart of the nation is filled with just indignation and abhorrence. It understands and feels that every consideration of national interest and welfare, of national honor and dignity, of justice, and fidelity to the great trust received from the fathers of the republic, alike forbid the nation to consent to its own dismemberment, or to a compromise with rebels in arms, and a surrender of the great principles involved in the contest—principles which lie at the foundation not only of our national Government, but of all government, and all political order. It understands and feels that the preservation of the national Government, and of all the sacred interests bound up with it, is a necessity for the nation, is the one grand paramount obligation now resting upon it. Its stern determination is to carry on this war, at all costs and all hazards, so long as there is a rebel in arms. Hundreds of loyal leaders of the people—statesmen and jurists of the highest eminence, Southern born as well as Northern born—have said, and only articulated the great voice of the nation when they have said: 'Constitution or no Constitution, put down the rebellion, and save the national existence. Time enough then to inquire whether it was done under the Constitution, or outside of it, or over it.'