Harper's Weekly 09/14/1861


ON Saturday, 31st August, Major-General
Frémont, commanding at St. Louis, Mis-
souri, issued a proclamation placing the whole
State of Missouri under martial law, and further

“All persons who shall be taken with arms in their
hands within these lines shall be tried by court-martial,
and, if found guilty, will be shot. The property, real and
personal, of all persons in the State of Missouri who shall
take up arms against the United States, and who shall be
directly proven to have taken active part with their ene-
mies in the field, is declared to be confiscated to the public
use; and their slaves, if any they have, are hereby de-
clared free

It has been stated by some of the papers that
in thus pronouncing the emancipation of the
slaves of rebels General Frémont was only car-
rying out the Act known as the Confiscating
Act passed by Congress at the extra Session.
An examination of that act will, however, show
that its provisions do not warrant the step taken
by the General. The only section in which any
reference is made to slaves is the following:

Sec. 4. And be it further enacted, That whenever here-
after, during the present insurrection against the Govern-
ment of the United States, any person claimed to be held
to labor or service under the law of any State shall be re-
quired or permitted by the person to whom such labor or
service is claimed to be due, or by the lawful agent of such
person, to take up arms against the United States; or shall
be required or permitted by the person to whom such labor
or service is claimed to be due, or his lawful agent, to work
or to be employed in or upon any fort, navy-yard, dock,
armory, ship, intrenchment, or in any military or naval
service whatsoever, against the Government and lawful
authority of the United States, then, and in every such
case, the person to whom such labor or service is claimed
to be due shall forfeit his claim to such labor, any law of
the State or of the United States to the contrary notwith-
standing. And whenever thereafter the person claiming
such labor or service shall seek to enforce his claim, it shall
be a full and sufficient answer to such claim that the per-
son whose service or labor is claimed had been employed
in hostile service against the Government of the United
States, contrary to the provisions of this act.

It thus appears that the only slaves who can
be forfeited under this Act are those who have
been “employed in hostile service against the
United States Government;” whereas Major-
General Frémont's proclamation grants free-
dom to the slaves of every rebel, whether they
have been employed in military service or not.
The General, therefore, has evidently based his
action, not upon the law of Congress, but upon
something else.

That something else is THE WAR POWER,
which is inherent in the Government, and is
exercised by its delegated officers commanding
the forces of the United States. What the na-
ture of this war power is, and what it may do
with slavery, may be gathered from the follow-
ing extract from a speech delivered by ex-Pres-
ident John Q. Adams, in the House of Repre-
sentatives, on April 14, 1842:

When your country is actually in war, whether it be a
war of invasion or a war of insurrection, Congress has
power to carry on the war, and must carry it on according
to the laws of war, and by the laws of war an invaded
country has all its laws and municipal institutions swept
by the board, and martial law takes the place of them.
This power in Congress has perhaps never been called into
exercise under the present Constitution of the United
States. But when the laws of war are in force, what, I
ask, is one of those laws? It is this, that when a country
is invaded, and two hostile armies are set in martial array,
the commanders of both armies have power to emancipate
all the slaves in the invaded territory. Nor is this a mere
theoretic statement. The history of South America shows
that the doctrine has been carried into execution within
the last thirty years. Slavery was abolished in Columbia,
first by the Spanish General Morillo, and secondly by the
Americal General Bolivar. It was abolished by virtue of
a military command given at the head of the army, and its
abolition continues to be law to this day. It was abol-
ished by the laws of war, and not by municipal enactments.

I might furnish a thousand proofs to show that the pre-
tensions of gentlemen to the sanctity of their municipal
institutions, under a state of actual invasion and of actual
war, whether servile, civil, or foreign, are wholly unfound-
ed, and that the laws of war do, in all such cases, take the
precedence. I lay this down as the law of nations. I say
that the military authority takes, for the time, the place
of all municipal institutions, slavery among the rest. Un-
der that state of things, so far from its being true that the
States where slavery exists have the exclusive manage-
ment of the subject, not only the President of the United
States, but the commander of the army, has power to order
the universal emancipation of the slaves.

John Quincy Adams thus held that, when-
ever a war grew out of slavery, martial law
might be proclaimed in any part of the Union,
and that such proclamation “swept by the
board” all municipal and local laws establish-
ing or recognizing slavery. It may seem su-
perfluous to quote authorities in support of the
assertions of so sound a jurist as Mr. Adams.
We may mention, however, that he merely re-
peats, in the speech above quoted, the views of
the recognized expounders of the common law.
Sir Matthew Hale (Hist. C. L. c. 2), says that
“martial law is built upon no settled princi-
ples, but is entirely arbitrary in its decisions;
it is in truth and reality no law, but something
rather indulged than allowed as a law.” Black-
stone quotes this passage (Comm., I. 413) and
emphatically approves it; adding that in time
of war court-martials have “almost an abso-
lute legislative power.” Modern jurists confirm
these views, and admit that in actual warfare the
powers of the general commanding are dictate-

We run no risk, therefore, in stating that,
in decreeing the emancipation of the slaves own-
ed by rebels in the State of Missouri, General
Frémont has neither, on the one hand, relied
upon the recent Act of Congress relating to con-
fiscation, nor, on the other, exceeded the prop-
er limits of his authority as General command-
ing. Under his proclamation of martial law,
all state and municipal laws were at once sus-
pended, and he, as commanding General, was
practically invested with dictatorial powers over
persons and property, for the just use of which
powers he tacitly undertook to render account
when martial law ceased to exist in his Depart-

The direct consequences of his decree, so far
as slavery in Missouri is concerned, can not be
of much importance. Missouri does not con-
tain 125,000 slaves, and of these considerably
more than one half are believed to be held by
loyal men. Moreover, under the terms of Fré-
mont's proclamation, no slave can be emanci-
pated until it is proved that his owner has been
actually in arms, or laboring actively in aid of
those who are in arms against the Government:
a large number of slaves may thus be defrauded
of emancipation through the want of evidence
to establish the treason of their masters. It is
doubtful whether 25,000 human beings will ex-
change slavery for freedom under the proclama-
tion of General Frémont.

But its moral effect must be signal. It is a
solemn warning to the inhabitants of the rebel
States, that wherever the armies of the United
States are resisted in the interests of slavery,
the cause of the resistance will be removed. It
is a pregnant hint that the rebels who have
falsely accused us of being abolitionists may, if
they choose, make their accusation true. It is
a notification to Kentucky, which seems to be
on the eve of explosion, that open treason will
necessarily involve the extirpation of slavery.
This rebellion has more than once recalled the
old adage, “Those whom the Gods wish to de-
stroy they first render mad:” we shall now see
how far the madness extends. The cost of re-
bellion is abolition. Those who choose may

Another important result of General Fré-
mont's proclamation has been the discovery of
the fact that the people of the North are much
more solidly united on the question of slavery
than was imagined. It had been generally
supposed that the first utterance of the cry
of emancipation would divide the North into
two hostile camps. How this strange delusion
came to be entertained it is difficult to dis-
cover; the least reflection should have satis-
fied every one that it was impossible to build
up at the North a party based on protection
to slavery any where. But, however the no-
tion originated, there is no doubt it did exist,
and that leading men and journals in the confi-
dence of the Administration were so thorough-
ly imbued with it, that they indignantly repudi-
ated the imputation of being friendly to freedom
under any circumstances. It seems, from the
temper in which the public receive General
Frémont's proclamation, that they are not so
tender on the subject. They seem very well
satisfied with the prospect. We hear no com-
plaints, no lamentations over the downfall of
slavery in Missouri. The respectable Demo-
crats of this part of the country express them-
selves rather pleased than otherwise. Of course,
it must be expected that the lottery-policy deal-
ers and the profligate vagabonds who pretend to
represent the Democracy in convention will tes-
tify their sorrow at the event, as they will do
at every success of the National arms: but nei-
ther in this nor in any other particular do they
express the sense of the rank and file of the

What people want now is decided, startling,
effective successes on the part of the United
States. If these are achieved, no one will com-
plain of what they may cost. Our Generals
may emancipate every slave in the country, and
lay waste every field from the Potomac to the
Rio Grande—The people will sustain them, pro-
vided they crush out the enemy and restore the
supremacy of the Government. But there will
be no mercy for the general who, for fear of
breaking a law or dividing a party, suffers the
rebels to progress from victory to victory, and
the Stars and Stripes to endure defeat after de-
feat, and disgrace after disgrace.

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