Chapter V: Letter II

GOVERNMENT AND ADMINISTRATION--CONSTITUTIONALITY.

Dear Sir: I now proceed to consider your letter to Mr. Crosby, which I cannot help regarding as fitted to excite sentiments of mortification as well as grief in the minds of all intelligent men and good patriots who in time past have known and honored you. What such as have not known or cared for you will be apt to think, I shall not undertake to say.

One of Mr. Crosby's questions was this: 'What appears to you the sufficient reason for a Christian citizen to ally himself with others for the extreme and radical purpose of undermining and paralyzing the power of the Government at a crisis when unanimity of support is plainly essential not only to the welfare but to the very life of the nation?'

This is a plain question, and one may well wonder how it was possible for you to suppose that you were fairly meeting it and effectually rebutting the charge it implies by raising the distinction you make between the Government and the Administration. The sense in which Mr. Crosby used the word Government is perfectly obvious; and if he had a right to use it in that sense--as he undoubtedly had--it seems to me it was for you to answer it in its plain meaning; to answer the question he asked, and not another, which he did not ask. But you preferred to go into critical analysis and to make sharp distinctions of words. Let us look at the work you have made of it.

You tell Mr. Crosby that he has 'fallen into the prevalent error of confounding the Government with the Administration of the Government,' and that 'they are not the same.' Now, they _are_ the same, when both words are used to signify the same thing.

You say that 'the word government has, indeed, two meanings.' Webster gives a round dozen. In its political applications it has four. You add, 'In order to relieve the subject from ambiguity'--though there is in this case no ambiguity to relieve--'that the ordinary meaning of government in free countries is that form of fundamental rules and principles by which a nation or state is governed,' etc. No doubt this is one of the meanings of the word. No doubt government, considered with reference to its quality or the manner of its constitution, does often signify a system of polity, a determinate organization and distribution of the supreme powers of the state. But this is not its '_ordinary_' meaning--either in the sense of its being the most correct and proper, or the most frequent use of the term. The other meaning to which you refer--that which makes it 'synonymous with the administration of public affairs'--is equally legitimate, and a great deal more frequent. The word not only '_sometimes_' has this meaning, but has it, I presume to say, ten times oftener than it has what you call its 'ordinary meaning,' and for the sufficient reason that there is occasion to speak ten times of Government as an actual exercise of the supreme powers where there is to speak of it once as an abstract system of polity.

But you say that when the word is used in 'a meaning synonymous with administration of public affairs, then '_the Government_' is metonymically used for _administration_, and should not be confounded with the original and true signification of the term _Administration_, which means the _persons collectively_ who are intrusted with the execution of the laws, and with the superintendence of public affairs.'

Pardon me, but this strikes me as a singular combination of futilities and falsities. In the first place, when the word government is used synonymously with administration, to signify in a general way the conduct of public affairs, there is nothing 'metonymical' in the case: one word is not rhetorically put for the other; either word may be rightfully used to signify the same thing, that is, they are so far forth simply synonymous terms. In the next place, what in the world do you mean by saying that the '_original and true_' signification of the term administration is the _persons collectively_ who are intrusted with the execution of the laws, and with the superintendence of public affairs? It is one of the meanings of the word indeed, and so a 'true' one--though no more true than its other authorized meanings, but it is not the 'original' one; on the contrary, it is secondary and derived. And finally, what earthly warrant have you for talking of 'confusion' being made when the _Government_ is used to signify 'the persons collectively' by whom public affairs are conducted? It is just as correct to use the word Government in this sense, as it is to use the word Administration. Both words are rightfully so used; and you would here, I suppose, be in no error in saying 'metonymically' used, if you have a fancy for that epithet: _Administration_ is 'metonymically' _put for_ the official persons and acts of the persons who have the direction of national affairs, and _Government_ is just _as often_ 'metonymically' put for the same persons and acts--and with _equal right_; for it is authorized by established usage, which is the supreme law of language. By what right, then, do you assume to limit the term government to signifying a 'form of fundamental rules and principles,' or at least to insist that when used synonymously with administration, it shall _not_ be used to signify the 'persons collectively' by whom the affairs of the nation are conducted; and when Mr. Crosby uses it--as he obviously does--in that sense, to talk to him of 'error and confusion?' When Lord Russell spoke the other day in the British Parliament of 'awaiting an explanation from the American Government' in the matter of the Peterhof, and when the London _Times_ spoke of 'the Government at Washington being anxious,' you might as properly have taken them to task for the 'error' and 'confusion' of talking as if our 'form of fundamental rules and principles' could give an explanation, or feel disturbed in mind. Mr. Crosby had a perfect right to use the word in the sense in which he obviously did use it. He fell, therefore, into no 'error.' He 'confounded' nothing; he did not identify different things, nor wrongfully put one thing for another.

In short, your distinction between the Government and the Administration falls away into a sheer, absurd futility. And well if it escape a harsher judgment; for when you go about to make irrelevant distinctions in a plain case, where there is none to be made, and tax your correspondent (no matter in what soft phrase) with errors and confusions when he was guilty of none--it will go nigh to be thought by many an unworthy subterfuge, serving no other purpose than the fallacious one of shifting the question, and misleading dull minds.

Of the same sort is what you further say in support of this futile distinction. You talk of the Administration being '_utterly destroyed_ without affecting the health of the Government,' of the Government 'remaining intact, unscathed, while the Administration is _swept out of existence_;' and you say 'every change of Administration, at every election, exemplifies this great truth'!

By Government, I suppose you here unconsciously mean something different from what you had before defined as its 'ordinary meaning,' for you would hardly talk of the 'life' and 'health' of an abstract scheme of polity, of a set of 'rules and principles.' I take it, therefore, that you mean, or ought to mean, a living, acting something. Now imagine a Government without an Administration, with its Administration 'utterly destroyed,' 'swept out of existence.' How long afterward would it continue to exist? One day? One hour? One moment? No; the 'life' of a Government implies the perpetual, uninterrupted exercise of the supreme powers of the state, and that depends upon the undying official life of living administrative functionaries; and therefore to say, as you do, that the Administration is 'utterly destroyed,' 'swept out of existence,' every time new members are elected to fill the place of those whose term of office has run out, is an absurd exaggeration of language, and certainly serves no good purpose, but only affords to those who are capable of being deceived by it a fallacious show of support to a distinction which I have proved to be irrelevant and futile in this case.

It seems to me it is not for you to talk about 'the prejudices and befogged intellects' of those who are unable to see 'in the light' of your notable 'explication' that 'opposition to the Administration'--such as you now make--'is not opposition to the Government.' And your pretension 'to rally in support of the Government,' and to 'uphold and strengthen' it, by such opposition, will, I am afraid, be looked upon by intelligent men and good patriots as absurd and impudent to the last degree-an outrage, in fact, on language and on common sense.

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But enough for your verbal distinctions--a great deal too much, indeed, were it not that if you can put forth such things in good faith, it is to be presumed that there may be others of easy faith enough, through disloyal predisposition of feeling, to take them as sound and valid, and so find comfort in error and an evil course.

To come now to the real merits of the case. You denounce the Administration, and seek to stir up popular disaffection to it, not for heartlessness, hesitation, and feebleness in prosecuting the war, but precisely for whatever of earnestness, promptitude, and energy it displays--not, in short, for what it does not do, but for what it does do, in striking down the rebellion. It is vain for you to justify your conduct by professions of allegiance to the sovereign people and loyalty to the Government. Why, it is the great will of the sovereign people (to whom you profess such faithful allegiance) that the Government (to which you profess such devoted loyalty) should be saved from destruction by crushing to utter extinction the armed rebellion that seeks its overthrow. And the Administration--and I may include Congress, since the action of that body is also the object of your denunciation--is the organ of the sovereign people, carrying out its sovereign will in all the acts you denounce. I do not say that the conduct of affairs has been in all respects satisfactory to the people. There have been too many things that looked to them like want of heart, want of earnestness, want of energy, want of wisdom, particularly in the earlier conduct of the war--too many indications of a disposition, if not to protract the struggle, yet to make this terrible crisis of the nation a time for political combinations and contractors' gains. They have seen these things with grief and stern displeasure. But the acts you denounce meet their sovereign approval. They are in favor of all earnest and vigorous measures for subduing the rebels, and for repressing and punishing traitorous sympathy with them, and treasonable aid and comfort to them.

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._'

At the same time the people believe that the Constitution gives the Government ample powers to put down the rebellion, as they have also given it unlimited resources of men and money. It would not be true to say that they have always been satisfied with the progress and success of the Government in the use of these powers and resources. There was doubtless a time when the public feeling demanded a more clear and decisive policy, and more vigor in the prosecution of the war. The people would like to have had the whole military system of the country revised and made more perfect. They would be better pleased if measures had been seasonably taken by which we might have had a well-organized and well-drilled army of reserve, two hundred thousand strong. Appreciating, however, the circumstances of the country at the opening of the war, the gigantic magnitude of the rebellion, and the immensity and complication of the problems pressing on the Administration, they have on the whole been disposed to be patient and trustful. And as long as they believe there is an honest, earnest purpose in the Administration to extinguish the rebellion by force of arms, they will sustain it. What they would do if ever they should come to the conviction that the national existence is in peril through incapacity, selfish personal ambitions or treachery on the part of the Administration, it is not necessary to predict. The conjuncture is not likely to arrive. Of one thing, however, you may be sure: the great loyal body of the nation have no quarrel with Congress or with the Administration for any of the measures that are the objects of denunciation by you and your associates, and they hold the men who utter these denunciations to be worse enemies to their country than the rebels in arms--morally far worse than the great mass of the misguided followers of the rebel chiefs.