It follows that the question whether the Federal Government has the right, under any circumstances, to emancipate slaves is more simply and more distinctly stated when put in these words: Has the Federal Government the right, under any circumstances, to take and cancel claims to the service or labor of persons of African descent held, under Slave laws, in certain portions of the United States?
If there are circumstances and conditions under which such claims can be legally taken and disposed of by the Government, then, under these circumstances and conditions, emancipation is constitutional. If there are none such, it is unconstitutional.
This opens up the next branch of our inquiry; and as were are at war with one portion of the slave States and at peace with another portion, the question subdivides itself accordingly; for the rules as to property of an enemy during war differ entirely from these which regard the property of peaceful citizens.
Let us, then, first examine
The constitutionality of emancipation in the insurrectionary States.
Has the Federal Government the right to take and cancel claims to service or labor held by inhabitants of the insurrectionary States?
An antecedent question is: Are these inhabitants, without distinction as to individual loyalty or disloyalty, and because of their residence within a given territory, enemies of the United States?
Vattel has treated as fully and as humanely as any other writer on international law of the rules of that law so far as they apply to civil war. He says:
When, in a republic, the nation is divided into two opposite factions, and both sides take up arms, this is called a civil war. * * * A civil war breaks the bands of society and government; or, at least, suspends their force and effect. It produces in the nation two distinct parties who consider each other as enemies. * * stand in precisely the same predicament as two nations who engage in contest and have recourse to arms. a
In accordance with these views the Supreme Court has decided that because of the present insurrection there exists civil war. The opinion on the court, delivered in March of last year, is as follows:
When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land. b
When one nation is engaged in war against another, all the inhabitants of the latter, without regard to their opinions as to the justice of the war on the part of their own government, become enemies of the former. If Great Britain, siding with the South, were to declare was against us, John Bright, though he might retain the same friendly sentiments which he now entertains toward this country, would be, in law, the enemy of the United States. Vattel sets forth this principle in the plainest and most explicit terms:
When the sovereign or ruler of the State declares war against another sovereign, it is understood that the whole nation declares war against another nation. Hence these two nations are enemies, and all the subjects ofmies to all the subjects of the other. c
a The Law of Nations, by Vattel, Book III, Secs.292,293.
b Claimants of schooners Brilliant, &c., vs. United States. March term, 1863. Opinion by Grier, J. Amer. Law Register, April, 1863, p.338.
c Vattel, Book III, Sec. 70.