Illlil LIBRARY OF CONGRESS 00001747137 att*. V.<* L 9* • •• >* -Inls *\s» ^ 4-°^ W .0 » *A^ *\sate.** ,* .U W F^ V*^V %*7S*V \'^> >* ••♦.*» • W ; '&H&: \s :•■■ W •*«£ "w v •' <* ' • ♦ ♦ aO v .T* A ' ^\ -•) ^0* /°^ ' ./ .. % 55 «\^ v 3 ^-^ \/WV V •!•••. ^ o: ^*./\/^ <> *'T7i» .0 M EMOR IAL X HON. TH. H. BAIRD, FOR THE ENACTMENT OF MEASURES TO PRESERVE CONSTITUTION AND UNION OP THE STATES PRESENTED TO THE HOUSE OF REPRESENTATIVES, FEBRUARY 7, 1S63, AID REFERRED TO THE COMMITTEE ON THE JUDICIARY., PITTSBURGH, A, A> ANDERSON & SONS* PRINTERS, DISPATCH BUILDING, N03. 67 & 69 FIFTH STREET, 1864. ERRATA.. Page 1_. 6th line from bottom: read — who sat in court. Page 16, 3d line from bottom: read — "Assiento contract" for fur- nishing aegroes. Page 20 ; 3d line from top: read — society of which. 5th line from top : read — it m the hope. Oth line from bottom : read — choose one appraiser. NOTE. The following Memorial was presented to the House of Representatives by Bon. Mr. Lazear, Feb. 7th, 18G3, and was referred to the Committee on the Judi- ciary. No farther action having been taken upon the paper, and the position of its author having been misapprehended, it was, after the adjournment of Con- gress, withdrawn, in order that those of his friends who take an interest in the subjects it discusses might ascertain, by private perusal, the opinions it main- tains. The result of this perusal has been a repeated request for its publication ; and in deference to the wishes thus expressed, with the hope also that, even amidst the excitement and agitation of the times, counsels of moderation and regard for law as the only safeguard for our liberties, and the only method of restoring our beloved Union, may not fall unheeded, — the Memorial is now sub mitted to the judgment of the puhlic. MEMOEIAL. To the Senate and House of Representatives of the United States, in Congress assembled: I desire to avail myself of my privilege as a citizen, respectfully to approach your honorable bodies, to ask such legislative action as may tend to adjust rightly our disturbed social affairs, and end the deadly strife that is now desolating our country. With this view I beg to present some considerations, which I hope you will not regard as impertinent or obtrusive : — We are fighting to maintain our Constitution and our Union ; yet there is reason to fear that we may lose all that the Constitution was designed to protect, and all that makes our Union valuable. Your present session is pregnant with consequences for weal or woe ; and your proceedings must heal or harm the people you repre- sent. Even words are weapons, when uttered in a legislative hall. I pray you, therefore, as wise and patriotic statesmen, " to exer- cise with firmness and energy the constitutional powers with which you are vested ;" but, at the same time, I beg you, in the very lan- guage of President Washington, " to mingle in the operations of government every degree of moderation and tenderness which the national justice, dignity and safety may permit." (Speech to Con- gress Dec. 8th, 1795.) I suggest, however, no concession to rebels in ar n ns. Many of our citizens have renounced their allegiance, and are "levying war" against their government ; others are " giving ihem aid and com- fort." All of both classes are guilty of treason, and have incurred the penalty of the law. This must be inflicted upon them by the regular prescribed judicial process ; bvt if the baton of the Mar- shal is too weak to arrest offenders, bails and bayonets may be called to his aid, — in subserviency, however, always to the civil authority. It is only the "free, able-bodied, white male citizens," constitu- ting the "militia," that can be "called forth" to "suppress insur- rections." Foreign mercenaries, negroes, or savages, may not be used for such a purpose, against our own erring and deluded people. Our force should be mitigated by due forbearance and dignified con- ciliation ; as chastisement to reclaim — not as vengeance to destroy. The Constitution declares that "The Congress shall have power" " to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." It is, however, "the militia of the several. iTA CBS " that is meant. President has no dominion, political or military, but what he - from tiic Con stitution, or what is vested in him bylaw. As u !i rative," h< may enforce the " rules and articles " enacted for the government of "officers and soldiers;" but he cannot add t them. He has no authority, at his mere will, under the pretext d! "public necessity," to assert an emergent sic jubeo, and thus subject civilians to military sway. Our Constitution and laws pre- elude the exercise of such arbitrary control. No man can "be de- prived of life, liberty or property without due process of law" and a "public trial by an impartial jury." — ("Amendments," Articles 5th and 6th.) We have no "martial law r ," distinctively so called, which can over- ride the civil power and the established judicial administration. Tins despotic rule was forever "annulled" by Statute 17, Car. 1st. Armies ami navies do not, inherently, belong to our social system, i are the creations of Congress, and are supported and gov- erned by positive legislation. The "commander-in-chief," as such, can do no valid act without a legal sanction; and a "proclamation" by him is a mere brutum fulmen, unless it is sustained by a pre- vious act of the law-making power. A distinguished writer says: "Proclamations have the force of laws : but then they are supposed to be consistent with the laws already in being ; otherwise they arc superseded." Our Constitution and laws furnish no warrant for them ; and such extreme executive acts generally do more harm than good. In a nation convulsed by civil strife, they tend to strengthen rebellion into r< vohntion. In 1775, Lord Dunmore, Governor of Vftginia, in order to intim- Idate the (nqturbed people into submission, issued his "proclamation" ,/■ daring martial law ; freedom to the slaves, and < neouraging them t, rise against tluir masters. It had, however, a contrary effect from the one inivnded. The public mind became greatly ex- eited, and more lixe.l in the purpose of asserting independence. I t, the historian of the period, says : "Even well-wishers to the British government censured this proposition, as tending to Loose? the bonds of society, t m. When wrongs have been done by individuals having a "little brief authority," a legal remedy can be had. Our courts are open and free. No law, to ratify or sanction an outrage already done, can avail to protect the wrong-doer; because it would be ex post facto, and therefore prohibited by the Constitution. I leave such cases, therefore, — merely referring to the decision of the King's Bench, in "Sayre vs. Lord Rochford," the British Minister. (See 1st Bissctt, p. 373.) There are other matters, however, of the highest interest to our country and to the world, that claim your prompt and earnest con- sideration. Allow me to present them to your notice. The Emancipation Proclamation of the President involves, in my opinion, more mischief than the burning of the Temple of Ephesus, which immortalized the incendiary. I come before your honorable bodies to pray that by timely legis- lation this unwarranted executive act may be "superseded," and the threatened evils prevented. If it is thought that this proclamation has any force as a Govern- i: fit edict, it would be very desirable that the question as to its validity should he submitted in some form immediately to the Su- preme Court. It will no doubt, at a future time, if our Union is preserved, come before that tribunal; for men will not be stripped oi* their property without seeking redress. But if it could be deter- mined now, it would be well, and might lead to safe adjustments. If the measure has no legal foundation to rest upon, Congress cannot confirm it, retrospectively, so as to relieve from responsibility. I think that no statesman can say that it has any authority ; and that it tends to horrible evils, bloody history abundantly shows. As a political measure, it has no legislative basis, and is there- fore unconstitutional. The President cannot make a law ; nor can Congress, retroactively, give the "force of law" to a proclamation that does not rest upon a previous enactment. It must therefore stand or fall upon its own merits. It is equally baseless as a military order. The usages of war, between belligerents, have no application. The militia called forth to suppress insurrections form, as I have said, an armed "posse," in aid of the civil officer. Their duty is to arrest rebels, and bring them to justice. In doing this, if they find them in battle array, they may shoot them, but must not plunder their houses, or burn their fences. They are not employed to destroy or seize property, but to capture persons who are charged with crime. Everything belonging to a traitor is protected by law, until his person is appre- hended, and he is tried and convicted by a court and jury. Then only does the question of forfeiture arise. If it were granted, however, that the revolted region was a sepa- rate belligerent power, still I maintain that there would be no war- rant for this proclamation. By the laws of war, as now held by civilized and enlightened nations, there is no plunder of private property allowed. Public stores, munitions, arsenals, and whatever may be used for defense or for annoying the enemy, may be seized, but individual rights are not disturbed. In the modern wars of Europe, armies bought and paid for their supplies, even in the ene- mies' country. (Vattel, page 452.) If this proclamation takes effect according to its purport, our "Commander-in-Chief" may indeed say that his " pen is mightier than his sword." Although not a conqueror, he will be a greater depredator than any warrior from Nimrod to Napoleon. I leave this matter to Congress. With your honorable bodies is the sovereign sway. If you cannot restrain, you have the constitu- tional power to punish the despotic action of the executive. I ask, however, no harsh rebuke for what may have been well intended ; but only beg, on behalf of humanity as well as policy, that, by reso- lution, you supersede the Emancipation Proclamation. There is another particular — of great national concern — to which I would now ask your attention. It is a government act, and bind- ing upon every citizen, unless repealed, or declared to be unconstitu- tional by the Supreme Court. I refer to what is called the Confis- cation Law. It is entirely within your control; and I will examine it freely, but with proper deference and respect. This enactment takes from the supposed rebel, and from his chil- dren, by a proceeding in rem, without a regular trial by jury, all his property, and puts it into the treasury. If it were within the granted power of Congress, still it would be a severe penalty, and 8 ur social fabric rests. Waylandsays: " The cheapest de- fence of nations, I suppose to be the exercise of justice and benevo- lence." This is certainly true. Hereditary punishments arc contrary to the law of God. and repugnant to the best feelings of our nature. Because a man com- mits a crime, shall his wife and his children be reduced to indigence ? That is the question which I present to your consciences, and your Sympathies, as husbands and fathers. Crime is personal: "The soul that sinneth, it shall die/' Inn what further saith the divine lav; ? "The son shall not bear the ini- quity of the father." (Ezekiel, 18:20.) Eistory shows that, in ever)' age of the world, confiscations have been the expedients of despots to fill their coffers. The first case upon record, perhaps, is that of Naboth, who was stoned to death in order that Ahab might have his vineyard. "I thought," says Bishop Burnet, "it was neither just nor reasonable to set the chil- dren begging for their father's faults. The Romans, during their liberty, never thought of carrying punishments so far. It was an invention under the tyranny of the emperors, who had a particular revenue called the Jisc, and all forfeitures were claimed by them, from whence they were called 'confiscations.' It was never the practice of free governments." The monster Caligula was the first of the Roman emperors who practise! this system of plunder. It is said "he oppressed the province of Gaul with enormous exactions and confiscations, in order to fill his exhausted treasury." He also, as an instrument of tyranny, introduced "martial law," and "substituted military exe- cution for legal punishment." When the "northern hordes" of armed despots and slaves over- ran Europe, this system of plunder, under the pretext of punish- was universally practised. It passed into England, where it was continued during the Saxon period, and became a part of the feudal law. Judge Blackstone intimates that the reason of any forfeiture for crimes is that /■>>/„■/■/>/ belongs to the crown, and is only / as it were, upon good behavior ; and that when an individual does wrong to his lord and master, he loses everything that he has only enjoyed by kind sufferance. This flam has no meaning here. Our lands arc allodial. We have ie> "superior lord-." Whatever a man lias, belongs to him and bis heir-., W'c have retained the phrase "fee simple," but it every- where in our country means an absolute estate of inheritance. Per- 9 sonal property of all kinds, also, by the laws of every state, at once vests in his children at his death, unless disposed of by will. Under whatever pretence, confiscations, by judicial proceedings or parliamentary acts of attainder, were continued in England until the reign of Queen Anne, when a statute was passed (17 Anne, oh. 21) declaring that "after the decease of the late Pretender, no at- tainder for treason should extend to the disinheriting of any heir, or to the prejudice of any person other than the traitor himself." In framing our Constitution, this humane and just principle was adopted ; and hereditary punishments are forever abolished in our free country, by a fundamental law. This detestable expedient of tyranny has in fact been banished from all Christian communities, by enlightened, philanthropic policy; and we must look for its abiding home in eastern despotisms. Gmelin, in his "Travels through Persia," says: "Even now, in the Turkish empire and in Persia, the property of great men who are executed falls to the public treasui-y, or the governors of the prov- ince seize upon it. The Chans now enrich themselves with the con- fiscated property of criminals, and other fines," etc. I will only refer to James II. and the French republicans in the Reign of Terror, in memoriam. Our Constitution declares that " no bill of attainder or ex post facto law shall be passed ;" and that "no attain- der of treason " (upon judicial trial) " shall work corruption of blood or forfeiture, except during the life of the person attainted." .In my opinion, the late "Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, &c." is in direct violation of the constitutional provision. Its pur- pose is to take the estate of the alleged traitor from his children, and put it into the treasury — not until the death of the accused, but forever. This is to be effected, too — not upon a regular trial by a court and jury, when the party charged shall be present, and " be con- fronted with the witnesses against him" — but in his absence, before a summary tribunal, and by a proceeding in rem. This, it is said, is to "punish treason and rebellion." The Con- stitution declares that there shall be "no forfeiture" except for life. The late act makes the confiscation absolute and without limit. Can there be two penal inflictions for the same offense ? or can there, be two modes of proceeding — one under the constitution, and the other by this process in rem ? If so, there might be very embarrassing results. A man might be "proclaimed " under this Act of Congress, and, upon his default, he might be condemned and his property con- fiscated : he might afterwards appear, demand a trial before a jury, and be acquitted. In such a case, what could be done to restore his violated rights ? It cannot be. There is one mode by which the guilt of treason can be established: a regular trial before a court and jury, as the constitution prescribes ; — and there is none other. Judge Story says: "By the common law, one of the regular in- io cidents to an attainder for treason (that is, to a conviction and judg- ment in court against the offender) is, that he forfeits all his estate, real and personal. His blood also is corrupted; that is, it loses all inheritable qualities, so that he can neither inherit any real estate himself, from any ancestor or relation by blood, nor can his heirs inherit any real estate from him or through him," &c. "Thus in- nocent persons are made the victims of the misdeeds of their ances- tors, and are punished, even to the remotest generations, by inca- pacities derived through them. The constitution has abolished this corruption of blood, and general forfeiture, and confined the punish- ment exclusively to the offenders; thus adopting a rule founded in sound policy, and as humane as it is just." It is clear, then, that children cannot be deprived of their inher- itance because their fathers have been guilty of treason. Nor can there be a conviction of that, or any other crime, (except in the case of the President and other civil officers of the United States), unless by a regular judicial proceeding before a constitutional court and jury- Congress cannot declare any citizen a traitor ; nor can it create any special tribunal to examine ex parte testimony, and condemn to confiscation by a proceeding in rem. By Act of April 30th, 1790, even a rebel convicted by a jury and sentenced by the court, is not divested of any portion of his property. It is: " Provided, always, That no conviction or judg- ment for any of the offences aforesaid, shall work corruption of blood or any forfeiture of estate." Treason is one of the crimes enumerated. This, however, is an act of legislation. It may be changed, and a "forfeiture" declared for the life of the offender, but no longer. Unless the late Confiscation Law operate a repeal, this provision is still in force. I think, however, the Confiscation Act is void; and at all events, it can have no ex post facto validity. It has been said there is no conflict with the constitution, because Congress does not "forfeit" the property of rebels, but "confis- cates " it. I will not insult your honorable bodies by the suggestion that there was any intention to cover a great wrong by a mere ver- bal distinction without a difference. I believe there has been haste, perhaps heat, and inadvertency, and that when the matter is exam- ined all will be set right. The words "forfeiture" and "confiscation," in the sense of penal inflictions, are synonymous. They both signify the loss of property as a consequence of crime. The first, in its derivation, intimates that something has been done " out of rule" or contrary to law ; the other expresses only a putting into the fisc or treasury. In its origin, r, it had a much severer meaning. Suetonius (in "Caligula") says : " ( '"//Jiscare est in publici ovarii jus redigere; non solum de bonis, %ed etiam de hominibus, dic^ur" Not only goods but men were seized. Littleton defines it: "To seize as forfeit to the king, arrest or seize on a man's person, and turn him over to the exchequer.'' It has always been a tyrannic expedient, by which 11 the people have been plundered in order to pamper parasites. Until recently the very term was not known to our laws. We have it in history, and in our dictionaries, but it does not appear upon our statute-books prior to this unhappy rebellion. Even the word " for- feiture," though used in the constitution, and in the law of 1790, is not in any acts of Congress except those relating to revenue and the collection of duties ; and in these, where personal delinquency is involved, the expression "fine" is employed to denote the pen- alty. This is a pecuniary mulct, and is in the true nature of pun- ishment, because it imposes privation and suffering upon the guilty party. Nor must there be " excessive fines " to impoverish a family. As a civil law, then, I claim that the Confiscation Act is uncon- stitutional, and therefore void. But as a war measure, has it any legitimate force ? I say, it has not, — as I will show. If our present conflict were strictly belligerent, confiscation of private property, not actually captured, would not be within the range of military law ; and it would be directly opposed to modern usage. By the " Rules and Articles for the better Government of the Troops of the United States," " any offense against the persons or property of the good people of any of the United American States" is expressly prohibited. (See 10th Sec, Art. 1st.) All " public stores taken in the enemy's camp, towns, forts or magazines, whether of artillery, ammunition, clothing, forage or provisions, shall be secured for the service of the United States." But " whoever shall commit any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses or gardens, corn-fields, enclosures or meadows," &c, "he shall be punished according to the nature and degree of the offense." (Sec. 13, Art. 16.) And " if any officer or soldier shall leave his post or colors to go in search of plunder, he shall, upon being convicted thereof be- fore a general court-martial, suffer death, or such other punishment as by a court martial shall be inflicted. (Sec. 13, Art. 21.) Destruction or pillage is never allowed, "unless by order of the Commander-in-Chief of the forces of said States, to annoy rebels or other enemies in arms against the said States." (Sees. 13-16.) All military interference with the persons or property of citizens not actually "levying war" is forbidden, unless there be a present hostile array that, in the opinion of the General, may require such extreme action in order to their discomfiture. In the late unhappy affair at Fredericksburg, it was justifiable, perhaps, to shell the brick houses that covered the rebels, who were firing Upon our men ; but it was wrong to plunder the dwellings in the city, after it was taken. There is nothing that falls, properly, under the military regime, but what is connected with open, manly warfare. We are not to excite servile insurrections, and massacres, and murders and burn- ings ; nor ought we to take from innocent wives and children their means of subsistence, by confiscations. Let us subdue the rebels 12 b j arms — not intimidate to submission, by acts that violate humanity. Tiberius nobly replied to an infamous proposal of the Prince of the Cattij "that the Unman people chastised their enemies by open force, without having recourse to wicked practices or secret machi- nations." Ourenemies, at present, arc our fellow-citizens. "Let us not forget that — they are men. If we are under the necessity of prosecuting our rights by force of aims let us not destroy that charity which connects us with all mankind." (Vattel, 127.) I admit that in our Government the legislative department is supreme, hut still it is limited. "Congress," said Mr. Henry, "by the power of taxation, by that of raising an army and navy — and by their control over the militia — have the sword in one hand, and the purse in the other. - ' There is, however, a higher authority, 'fh" people, in the Constitution, have retained rights that must not he violated. Among them are personal liberty; private property; freedom from arrest, unless upon judicial warrant ; trial by a court and jury in all cases of alleged crime, "confronted with' the wit- and "no forfeiture except during the life of the person attainted." Congress can pass no confiscation law, nor fix the guilt or con- sequences of crime upon any citizen — even a rebel — by an ex parte proceeding in rem. Religion, justice, humanity ami true social policy are opposed to such extreme measures. Nicodemus saith: "Doth our law judge any man before it hear him, and know what he doeth ?" And in Paul's case, Festus told the malignant Jews: '-It is not the manner of the Romans to de- liver any man to die" before that he which is accused have "the accusers face to face, and have license to answer for himself con- cerning the crime laid against him." (Acts, 25:16.) Confiscations and attainders have been dreadful instruments of tyrrany. I w ill only refer to the Norman Invasion, the reign of Henry the Eighth, the civil wars between the houses of York and Lancaster, and the rebellions in Ireland, to show their devastating effects. \ el even in all this period, where there was a free and calm ex- ercise of judicial power, they were condemned. William the First claimed all England by conquest. His good feelings revolted at the hereditary punishments he had inflicted. A case occurred in which he decided against his own arbitrary act. Sherborn, an English gentleman, was owner of a castle and lands in Norfolk. The "Conqueror" gave the estate to one Warren, a Norman, who took ! ion. The son of the rightful proprietor, when tine- became quiet, claimed as heir-at-law; and upon full trial, in presence of the king, who sat mi court, it was decided that the confiscation and grant by the Conqueror Were VOld, ami that the claimant was enti- tled to Ids inheritance. , Tin- numerous bilh of attainder, too. passed by the parliament, have generally been repealed, ami the property restored or compen- sated. They are now in disrepute and disused. 13 Our Confiscation Law is, in character and effect, a bill of attain- der, — and, therefore, prohibited by the Constitution. There is one feature in it that is objectionable, even beyond the divestiture of property,— because it tends to make households the scenes of outrage and blood. The slaves of rebels are declared confiscate; — not, as in Calig- ula's time, to put them into the fisc, or strong box ; but to set them free. If it were conceded that Congress has power to confiscate the property of citizens charged with treason, by an exparte pro- ceeding in rem, without trial by jury, still I claim that they cannot declare emancipation. This has been determined by the Supreme Court, — by the Executive, — and by a deliberate and almost unani- mous vote of the House of Representatives. On the 11th day of December, 1838, Mr. Atherton, of New Hampshire, offered a series of resolutions. The first was in these words : " Resolved, that this government is a government of limited powers ; and that by the Constitution of the United States Con- gress has no jurisdiction whatever over the institution of slavery in the several States of the confederacy." This resolution was carried by a vote of, yeas, 198 — nays, 6. (See Journal.) There never was a clearer expression of legislative opinion on any subject. It is true that Congress has since set free the slaves in the Dis- trict of Columbia, in violation of the acts of compact, but it is my opinion that if the question is ever presented, the Supreme Court will declare the whole action unconstitutional and void. I claim, then, that if the property of rebels may be confiscated, yet slaves cannot be set free. If Government take them from their masters, it must assume all the ' obligations that the relation of slavery, by law and usage, has fixed upon the owners, — in case of old age, decrepitude, disease and helplessness. Montesquieu says: "The magistrate ought to take care that the slave has his provisions and clothing ; and this ought to be regu- lated by law." "The laws ought to provide that care be taken of them in sickness and old age." (Vol. 1, page 289.) I believe that in all the Southern States the masters are required to keep their negroes when they become unfit for service. A for- feiture, of course, discharges them from this liability, and our Gov- ernment is bound to assume the obligation. They cannot be turned loose to maraud or perish. Our officers, it seems, have a proper sense of duty in this matter, and thousands of "contrabands" are now supported at the public expense. If their number is to be greatly increased by the President's Proclamation, or by the proceedings in rem under the Confiscation Law, it becomes a matter of great concern to the people. How are they to be disposed of? Unless they are property, our measures operate no divestiture ; and if they escape, and our Government refuses to execute the Fugitive Slave Law, they will spread over the land as paupers and pillagers. Should we recognize them as "chattels," or as anything having 14 ownership, and declare them forfeited, we must take care of them, and provide for their wants : they belong to the nation. Should we keep them, and make them work, our Government would become a slaveholder, on a grand scale ; if we sell them, and put the "price of blood" into the treasury, we fix, indelibly, the national seal in approbation of slavery. But it matters not in what way they are disposed of, the heirs of convicted traitors will, under the constitution, have a claim for the value of their lost servile inheritance. (See Amendments, Art. 5.) This subject, then, is one of great interest, and demands the gravest consideration. The legal and political condition of the negro slaves in the rebel states ought to be well understood. I fear it is not. Slavery is an old "institution" among men. It began soon after the deluge, when the curse was pronounced upon the descendants of Ham : "A servant of servants shall he be unto his brethren." In the Hebrew language, the word Ham means burnt or black; and it is wonderful how the malediction has followed the colored race in all ages of the world. The early Egyptians had slaves, at the time their first history begins. Hagar was given to Sarah as a handmaid, and her domin- ion over her was absolute. Abraham was a large slaveholder, and so were Isaac and Jacob. It subsisted among the Israelites, and just laws were adopted, or given by divine authority, for their gov- ernment. (See Paxton's Illustrations, 2d vol. p. 385.) In Homer's time, slaves were common in Greece ; and at a later period, in Athens, there were only twenty-one thousand citizens, and four hundred thousand men, women and children in actual bondage. The Romans had slaves called "servi," from servare ; being cap- tives taken in war, and not killed (as the conqueror had a right to do) but saved, as the word means, to yield money either by their labor or by their prices when sold. By the civil law, the power of making slaves is regarded as a national right, and follows, as a natural consequence, from war. " Jure gentium," says Justinian, "servi nostri sunt, qui ab hostibus capiuntur." — ("By the law of nations, those who are taken from our enemies are slaves.") The supply from the Roman wars was very great. Plutarch says that at one time, in the camp of Lucul- lus, a slave was sold for four drachms, or three shillings sterling. But the relation existed in every age and in every country. At the very time the sturdy barons extorted from King John, at Runny- mead, the acknowledgment of their rights, perhaps two-thirds of the people were in bondage. Nothing was said in the Magna Charta about "liberty and equality" to all men. In fact, the "villeins" or slaves were not considered as having any privileges ; they were regarded as property, and were sold with the land at the end of the tenth century. A law of Ethelred fixes the prices of certain articles, as follows: 15 " Of a man or slave, a pound ; of a horse, thirty shillings ; of a mare or colt, twenty shillings," — and so on through many different items. I must, however, pass over a great deal of curious historical de- tail, and come to the particular case of the negroes. "Slavery," says the writer of Universal History, "is indigenous in Africa. In Loango, and in many other nations, all the common people are slaves. But, what is worse, they are cannibals. Human flesh is eaten on the western coast of Africa, and is offered to their idols." Dr. Oudnay says: "The wells are generally surrounded by the bleached skeletons of slaves, who had been left to perish there by their masters." The chief worship of the Giagas consists in frequent sacrifices of human victims, particularly children. Cap- tives taken in war were always devoured, or immolated to appease their deities. "In such a country" says a writer, "slavery is a deliverance" The fact is that humanity first introduced the negro into Europe. This may be denied, but history proves it. When the Portuguese erected their first fort at Elmina, in the year 1481, they found that, in various ways, the great part of the people of the interior were in a state of cruel bondage. Some were born in that condition ; some had sold themselves, their wives and children, as was the cus- tom ; others were so punished for crimes, or for a kind of pretended witchcraft called obi; many passed into servitude for debt ; and prisoners were slaves by right of war. (See, also, Wilberforce's 12 Propositions.) The Europeans, having found out the African chiefs, made a treaty with them, in which it was agreed that the kings on their part should, from that period, sentence prisoners of war and convicts to servitude with the whites ; who, on their part, engaged to furnish, in exchange for them, the luxuries of the north. This contract, which took effect immediately, was the foundation of the slave trade. Spain soon engaged in the traffic, and negroes abounded in that kingdom. In 1552 and 1557 expeditions were sent out from England, under Sir John Hawkins, and it was said that Queen Elizabeth was a partner in the concern. Mr. Bancroft says that John Smith, of Boston, and Thomas Key- ser, first brought the Colonies to regard slavery. In 1654 they im>- ported a cargo of negroes to Massachusetts. At first the enterprise was denounced, and the guilty men were punished. The legislature ordered the slaves to be restored to their country, at the public ex- pense. At a later period, however, both Indians and negroes were brought into the state in bondage, and the trade was greatly ex- tended. Soon after the first settlement of James river, in Virginia, a Dutch ship landed twenty negroes, and sold them. This was the beginning of slavery in the Southern colonies. The early settlers in all that region struggled nobly against it. Georgia was earnest in 16 Opposition, and the House of Burgesses of Virginia passed no less than i. Qty-three acts for the suppression of the slave trade, which . d by the king. The commercial class took hold of the matter, and the "institution"' was established. Old and New Eng- land engaged extensively in the detestable traffic. As there was no marriage among the blacks at an early period, the civil law rule, •• /' /s- sequitur ventrem," (The child follows the condition of the mother), was universally adopted. All born of slave women were slaves. The number increased rapidly; in 1790 there were 697,897, — extended over ail the states except two. There are now between four and live millions, — confined mainly to the country south of Mason & l>i\on's line. "What must be done with them? is the in- teresting question. This matter ought to be examined calmly, in the light of truth and policy. If slavery is an evil, the people of the South did not originate it. They found it as it is, and think it is beyond their control, unless by encountering greater mischief. Perhaps the trade was com- ment i by Massachusetts, who took as prisoners many Pequod In- dian.-, and sold them in the West Indies. This was in 1637; but New England had slaves before this: for the " Confederation of Massachusetts, New Plymouth, Connecticut and New Haven," in 1643, when they formed their articles of union, established the first fugitive-slave bill that ever was enacted. In the eighth article is the follow tng provision : "It is agreed that if any servant run away from his master into any of the confederate jurisdictions, that in such case, (upon certificate from one magistrate in the jurisdiction out of which said servant fled, or upon other due proof), the said servant shall be delivered to his master, or any other that pursues and brings such certificate and proof." (1 Pitkins, 477.) The first fugitive-slave bill, too, which was before Congress in 1791, was reported by Mr. Bourne and Mr. Sedgewick, of Massa- chusetts, and Mr. "White, of Virginia. It was a similar act sent from the Senate, however, that was passed in the House on the 5th February, IT'. 1 -'), and the vote stood yeas 48, nays 7, — every mem- ber from New England but five voting for it. It was, therefore, a Northern measure — honorable to the men who were determined to fulfil the compact fairly made. 1 make these references merely as intimating a suggestion that "hard words" on this subject, coming from a particular region, are unsavory, and not altogether just. Let them "that are without sin east tli.' first stone." Criminations and recriminations are idle and mischievous. They lead to rancor, and not to peaceful adjustment. We have slavery, and — at least since 1713 — by an authority that the colonists could not control. In that year, by the Treaty of Utrecht, between Philip the Fifth, of Spain, and Queen Anne, of England, the •• Assionto contract" for punishing negroes was coni- mitted to the South Sea Company just then established. This gave full license to the trade, and " the contraband commerce was carried 17 on with a facility and to an extent unknown in any former period." (See Robertson's History of America, vol. 3, p. 271.) In fact, negro bondage has always been legitimated by govern- mental authority, in this country, before the Revolution, and it is recognized by the Constitution of the United States. To speak of it, therefore, as a crime against the laws of God and man, is un- profitable. We may all regard it, in the present age of Christian humanity and progress, as a social evil, which ought to be removed, by common consent, in a manner consistent Avith private rights and sound, just policy. In my opinion, we can never have a cordial, trustful peace and union again until this disturbing element of dis- cord and strife is happily settled. Can this be done ? I think it may ; and I beg leave to present to your honorable bodies a plan for your consideration. First, however, let me say how it cannot be done. 1 say, then, that slaves cannot be freed by an executive proclamation, not sus- tained by previous legislative warrant. Such an act would have no authority, and ought to be superseded. Any subsequent ratification would be ex post facto, and therefore unconstitutional. They cannot be freed by "martial law — which is no law" and therefore does not exist in our country : it is military despotism. They cannot be freed under the "Rules and articles" made "for the better government of the troops ; '' for those only operate upon "officers and soldiers." They cannot be taken as booty, and set free : there is nothing that, by the laws of war, is regarded as booty, pillage or plunder, except that which is seized in the strife of arms. This does not change ownership ; and as slaves can always be identified, the mas- ter, if he can recover them, has still, by the law of post liminium, his right of property complete. (See Vattel.) In the War of 1812, the British army deported a great many slaves from the Southern States. Our Government claimed indem- nity, and actually received, in the year 1827, through the mediation of the Emperor of Russia, $1,204,960, for the benefit of the claimants. The time may come when the justice of Congress will compensate for the "contrabands" that are now fed at public cost. I say, further, that slaves cannot be set free by an act of confis- cation. Congress can, by law, declare that the property of rebels shall be forfeited during life, but it cannot forfeit the property of a single one of them by an ex parte proceeding in rem. It can only be done upon a regular trial before a court and jury. So is the Constitution. Finally, as to these negative suggestions, I maintain that although slaves can only be freed by an act of manumission, yet the masters cannot do that without the consent of the bondmen themselves, ei- ther expressed or implied. This may seem strange, but the law is so, as will appear by a little examination. 18 Slavery is a compulsory relation, yet there are mutual and recip- rocal obligations. The master, by the laws of the several states, and by recognition in the constitution of the United States, has a right to the "service or labor" of his slave ; which he may coerce by such discipline as a man may use with his Bon in his minority, or -with his apprentice. But, on the other hand, there is a corresponding obligation on the master, in conformity with the law of the land, to find his servant in food, raiment, fuel, medicine in sickness — and whatever is neces- sary to his health. He cannot relieve himself from these duties by saying to his old, infirm or decrepid slave — "go, you are free." If the master, however, is discharged from these duties by a con- stitutional, governmental act, the nation must bear the burthen. It is my opinion, upon careful examination, that "proclamations of emancipation" are only mischievous; — and that confiscation, or forfeiture of slave property, is not within the range of military law. I believe, too, that Congress cannot free a single slave without vio- lating our written charter. — Yet I am fully convinced that a plan may be devised to remove the incubus of slavery and restore our great country once more, to peace and harmony. It requires, how- ever, una /tii/tit// among leading politicians, in order to secure the concurrence of all the people. Suggestions that may lead to so happy a result ought to be received kindly. As a matter of deep concern and common interest, I beg leave to present some views on this subject. Before doing so, however, I would say that I think the people of the North and the South have greatly misunderstood one another on the slavery question. The greatest and the best men of the southern section of our country have been opposed to the system of bondage, and have anxiously de- sired to have it safely removed. I could refer to the writings and speeches of Washington, Jefferson, Henry, Tucker, Harper, Mer- cer, Gaston, Drayton — and a host of statesmen in proof. lean say also of the people of the North, that, although there are enthusiasts among them, who would derange the system of the universe, in order to carry out their wild and impracticable scheme of abolitionism, — yet the great part of the population is influenced by a desire to do what is true and patriotic, by a just and honora- ble process. Why cannot good men meet on a common platform of christian philanthropy, and act together? I appeal to all such. Religion and humanity need not disregard prudence and policy. It was a movement in Virginia that originated the colonization society. I regard this as the best scheme that ever was devised for the future welfare of the black race of our country; and perhaps it may prove the greatest missionary enterprise that has ever been since the days of the apostles. It is nearly a year since I submitted to the President a plan of voluntary manumission, — referring to the colony of Liberia, as a happy home for our civilized, and, to some extent, christianized 19 blacks. I requested him, if he approved, to present it to your hon- orable bodies, for your consideration. He did not think proper to notice it; but has since offered some views of his own, with like object. I concur with him heartily in the principles he asserts, and only differ with him as to the consti- tutionality and practicability of the measures to carry them out. He proposes gradual emancipation with the consent of all concerned; compensation to oioners, and the purchase of a territory, to which the blacks may remove and hold, as their country. I object to this plan only because it cannot be operated success- fully. My reasons I will briefly give. 1st. The owners of slaves, holding them under the law of the land as property, will never consent to relinquish them without equivalent. 2d. The people, in addition to our war debt, may not be willing to have their future means, and that of their children, charged with the principal and current interest of an immense sum, the price of slaves. 3d. Congress has no power to create such national liability. Their power to tax is defined and limited. The President proposes to call a convention, to amend the constitution, so as to embrace the objects contemplated. In our present social condition this would be unmooring our national vessel in a stormy sea, and the end might be shipwreck. I leave this however to the wisdom of Congress. 4th. The President seems to repudiate the colony of Liberia, and contemplates buying a new home for the blacks in the isthmus between the two American continents. This plan was submitted to your honorable bodies many years ago, and I will adopt, as my own insuperable objections, the reas- ons given in a report of the committee of the House of Represen- tatives on the 11th February, 1817, (see Journal.) I will quote only a single passage, but ask that the whole may be examined. "Every new territory established by our government, constitutes indeed a colony, formed with great ease; because it is only an ex- tension of homogeneous settlements. But in contemplating the colonization of the free people of color, it seems obviously neces- sary to take a different course. Their distinct character and rel- ative condition, render an entire separation from our own states and territories indispensable. And this separation must be such as to admit of an indefinite extension. Hence it seems manifest that these people cannot be colonies within the limits of the United States. If they were not far distant, the rapidly extending settle- ments of our white inhabitants would soon reach them ; and the evil now felt, would be renewed, probably with aggravated mischief." Again. "Turning our eyes from our own country, no other, adapted to the colony in contemplation, presented itself to our view, nearer than Africa, the native land of the negroes; and prob- ably that is the only country on the globe to which it would be 20 practicable to transfer our i'n c people of color with safety ami ad- vantage to themselves and the civilized world." This report led to the establisment of the colonization society, os which Judge Washington of Virginia was the first president. Its progress and its prosperity have exceeded all expectation, and it if the hope of the christian and philanthropist, for the vast continent rica, now in heathen darkness and Bavage barbari Without farther remark as to the presidential plans, which I only oppose because they are impracticable, 1 beg your permission to of- fer my own scheme. Let me premise, however, that in the extinc- tion of slavery ^r the process of colonization, by any direct exer- cise of power, the general government cannot control. Congress, however, can "dispose of the public lands" ad libitum and without any constitutional restraint. It may appropriate them so as to promote the general welfare, by removing a constant source of ir- ritation, jealousy and distrust. En this way only I ask its aid. I call for no exercise of doubtful authority. If the measures 1 propose will not tend to restore UNION (with harmony and confi- dence) to our now disturbed country; if it will not make our social institutions more stable and secure, advance the wealth and pros- perity of the whole nation; and in every way increase the happi- ness of the people, I will consent to abandon the project. It is, however, my decided conviction that in all aspects and in- fluences, the results will advance the common good and that, in any event, the measure I urge "will show that the government aims to carry out the honest desires of the whole nation by just, fair and practicable means. With these views I proceed to offer A PLAN FOR THE EMANCIPATION OF THE COL- ORED RACE. First. I propose that Congress direct the unsold public domain to be surveyed into tracts, in the usual manner; causing each sub- division to be valued, according to its quality, in reference to its soil, locality, mines, timber, water and other natural advantages; all which particulars shall he recorded in hooks to he provided, and kept in convenient places, for examination, hy all who may be in- terested. Second. Whenever any owner of slaves shall determine to man- umit them, upon the condition that they consent to go to Liberia, he shall make his intention known to the officer who may be ap- pointed by the government to attend to the business; and thereupon measures shall be taken to have the said slaves valued. To effect this the owner of the slaves may choose one appraised, and the offi- cer of the government another. Third. When the valuation is made, the owner of the slaves shall receive for the amount, land scrip, which he may locate in any part 6f the United States, where the public landsare surveyed and 21 valued; leaving every alternate tract to the government, for sab at any subsequent period, in the usual manner. Fourth. That as soon as tho colonization society shall secure to each adult male, so manumitted, 160 acres of land in Liberia, the President of the United States shall cause the said slaves to be conveyed to the places designated; and for this purpose the public steamships or other vessels may be employed. Fifth. The government will provide for the said slaves one year's subsistence, and will also furnish suitable agricultural imple- ments, &c, so as to enable them thenceforward to support them- selves and their families by their own industry. Sixth. The colonization society and the local government of Li- beria, are to be parties in all the arrangements ; and to give their hearty aid and co-operation to eifect the objects. This is the action I propose on the part of the National Admin- istration. There is nothing coercive. It merely offers to apply, as a measure of "general welfare," the public lands, to pay a reasonable compensation to those who, yielding to common feeling and sentiment, consent to manumit their slaves. This is but just. Popular move- ments have interfered with the owner's quiet enjoyment of his slave property, and have rendered it insecure. The loss he incurs, there- fore, by giving them freedom, ought to be borne by the nation, and discharged out of the "eminent domain." What I thus desire from Congress is entirely inductive. It merely promises to the owner of slaves, who may be influenced by humanity or common sentiment to set them free, their fair value in land to be selected by himself. But, if the proposed enactment is supported and carried by Northern members, it may convince the rebels that there is no disposition to do them wrong in that much-abused section. Perhaps it may induce misguided men to pause in their mad career, and re- flect upon their course. If they would do so, they might arrive at the happy conclusion that emancipation is not only a duty, but is really their highest interest. I firmly believe that Southern lands, under the power of free labor, might be made to produce double what they will do under slave culture. This question, however, I do not mean to discuss at present ; but only intend to say, that if kind feelings and good opinions could be entertained by slaveholders — and all of us — it would do what war never can effect : restore true union, harmony, and general prosperity. It would soon remove, too, the great root of bitterness, by a co-operative effort to extin- guish bondage in the only way by which it can be fully and finally effected. This must be by state laws, passed by the representatives of the owners of slave property. Initiatory steps — to be binding — must originate in the very region where the mischief exists. Con- gress cannot interfere, unless by^a/recommendatory resolution. I propose, then, as a suggestive part of my plan — First. That each slave state pass a law providing that, as soon as the other states and the United States adopt corresponding measures, 22 then the rale of the civil law — that the children of slaves follow the condition of the mother — shall be abolished, and that slavery by birth shall no longer exist. I do not ask for compulsory emancipa- tion. 1 Leave it optional with owners to accept or reject the offer which 1 pray Congress to make; but I wish that all born after the law I have proposed, shall be free, as God and nature intended. This is the primary movement, and strikes at the very foundation of the "institution.' 1 It is within the constitutional powers of the several stair governments, and interferes with no subsisting right. .V" i/i'hi cm claim "property in that whieh u n<>t in being. Such a law. therefore, would be no greater exertion of legislative authority than is often exercised in adjusting the rules of policy in regard to estates both veal and personal. The very measure I propose was adopted by Pennsylvania, and the validity of the enactment was never questioned. By the third section of the Act of 1780, it was declared that •• all persons, as well negroes and mulattoes as others, who shall be born within this State, shall not be deemed and considered as ser- vants for life or slaves, and all servitude for life, or slavery of chil- dn n. in consequence of the slavery of their mothers, in- the case of all children born within this State, from- and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, ex- tinguished and forever abolished." This act made Pennsylvania a free state ; and such a law I believe every legislature has constitutional power to pass. The process is not direct or immediate freedom to slaves — which can only be by the voluntary act of the master — but it strikes at the root of the social evil, and will, after some time, remove it forever, without im- pairing any right of property. The only other emancipation measure I propose is — Second. That, by laws or resolutions, every legislative body in the whole United States should recognize the Colonization Soci- ety, and give it such countenance and aid as will enable it to carry out to full success its noble scheme of philanthropy. There never was an association of men more deserving of grateful acknowledge- ments. Comparatively few in numbers, and with limited means, they have effected what, in the difficult circumstances in which they have been placed, is an astonishment to the world. They have laid the foundation I'm- a great nation, in a fertile country and a mild climate. For soil, water, and every other natural advantage, it is -in passed by none on the globe. They have prepared a home for our colored race ; where they may be raised to the proper level of humanity, and, perhaps, perform the part of missionaries, in civil- izing and christianizing cannibal Africa. I have thus presented a sketch or outline of the mode in which emancipation may be effected, without violation of personal rights. or any coercive process; without cost, really, to the nation, and without any exercise of unconstitutional power. My plan suggests several particulars worthy of note : 23 1. It asserts the great principle that no man can be born a slave ; and that to place a helpless infant in that condition, from the mere accident of birth, is contrary to the laws of God and nature. 2. It proposes to extirpate a social evil, affecting the whole nation (at least by sympathies of humanity and sentiment), by the appli- cation of a common fund — the public lands — and through the con- stitutional action of the General Government. 3. It contemplates, as just and reasonable, that the owners of slaves, who yield them to the wishes of the country, and to a wise policy, shall be moderately compensated for their loss of property, out of the national domain. 4. It also secures, by the increased value of the alternate tracts of land reserved, a full reimbursement to the treasury of all the expenses incurred. I think that by this plan of settlement, through the interested activity of the owners of the "scrip " thus applied, the population of the country will advance in a regular way, with- out any hot-bed process ; and that the tracts of land reserved by the government for subsequent sale will be worth more, eventually, than the whole could be sold for at present. But — wh%t is better than all else — it will, I think, bring us a happy peace. " Hard words, jealousies and fears," on this exciting subject, will no longer disturb ; the present fratricidal strife will cease; mutual confidence and harmony between the^North and the South will be restored; the internal trade between the great sec- tions will be .increased ; general prosperity will follow, and the Na- tional glory be more advanced than it can ever be by abolitionism or wars of "secession." These happy results I think will folio ay if the system I have thus proposed for the disposal and application of a portion of the public lands be adopted. . But, what is still more and better, the measures I have proposed I believe to be right, because they aim at right ends by right means. I submit what I have presented, to the consideration of your honorable bodies, and pray the legislative action thp,t may now be necessary to " promote the general ivelf are" in the matters to which I have referred. TIL H. BAIRD. January 1, 1863. 5* ♦. •=* K'- *. <* ^ ■*% •"' ,<» * v sM * • »o * />*