If we take into account the fact that ours were the invading and attacking forces, while the insurgents had the advantages of acting upon their own territory, near to their supplies, with short inside lines of communication, and on the defensive, it need not surprise us that after the lapse of a year and eight months of unintermitting war the scale still remained in the balance, neither side yet hopelessly depressed.
Under such a condition of national affairs, when there is question of claims held by the enemy, upon which rests his power to supply his armies with the necessaries of life, we must go much further than to inquire whether the Commander-in-Chief has the right to take and declare forfeited these claims. The true and fit question is, whether, without a flagrant violation of official duty, he has the right to refrain from taking them.
"You have no oath," our present Chief Magistrate said, addressing, in his inaugural, the insurgents already in arms against lawful authority, "You have no oath registered in Heaven to destroy this Government while I have the most solemn one to preserve, protect, and defend it."
Can we suppose a grosser violation of that solemn oath than would have been the failure to employ the appropriate means, sanctioned by the law of nations, gradually to withdraw from the enemy half of his military strength? Has a President done his best to preserve the Government to protect the people, until he shall have done this? Charged with the lives of millions, with the putting down of a gigantic rebellion, and the restoring of tranquility to the land, what right has our Commander-in-Chief, in the hour of utmost need, to scorn a vast element of war strength placed within his reach and at his disposal? And if he had refused to avail himself of such an element would he not have been righteously held responsible for the hopes he blighted and the lives he cast away? a
Under such a state of things it was eminently and imperatively the duty of the President, "as a fit and necessary war measure for sup-
a In this argument we have confined ourselves, in terms, to the proclamation of the President as authority sufficient to make emancipation in the insurrectionary States legal and irrevocable. The argument, however, is equally applicable to the acts of Congress on this subject, which acts have, besides, other grounds of validity unnecessary here to recite.
The chief provision by Congress is contained in the ninth section of the act of July 17, 1862, commonly called the "confiscation act," as follows;
"That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the Army; and all slaves captured from such persons or deserted by them and coming under the control of the Government of the United States; and all slaves of such persons found or being within any place occupied by rebel forces and afterward occupied by forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves."
By the decision of the Supreme Court, already cited, all the inhabitants of the insurrectionary States are, in law, persons "engaged in rebellion." Therefore all refugee slaves from insurrectionary States are by this statute declared free.
Further, as all the insurrectionary States have been "occupied by rebel forces," and, as we may reasonably conclude, that if we prevail against the South, all these States not already "occupied by forces of the United States," will hereafter be so occupied, it follows that, by the operation of this law, all the slaves in the insurrectionary States, even if no emancipation proclamation had ever been issued, would, before the end of the war, have probably been entitled to freedom.
Strictly in the spirit of the above statute, and going only so far beyond it as to declare slaves in portions of the insurrectionary States not yet "occupied by forces ofn advance of such occupation, was the President's action in the premises.