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VII.

(Vol. II., page 33.)

Head-quarters, Department of the East,

New York City, August 12, 1863. Hon. E. M. Stanton, Secretary of War:

SIR-I telegraphed the Provost-marshal General this morning that there ought to be ten thousand troops in this city and harbor when the draft is resumed, and that with such a force it may be commenced on Monday. This force is the smallest estimated by any one as necessary to hold the forts, provide for the safety of the public property in the city, and overawe res to the draft. Although General Canby has five thousand men, they are very much scattered, and not more than two thousand would be available for service in the city.

The interests the Government has in this city, independently of the importance of preventing any open opposition to its authority, are too great to be put at hazard by want of adequate preparation, and I am constrained to believe that the whole moral influence of the executive power of the State will be thrown against the execution of the law for enrolling and calling out the national forces, and a case may occur in which the military power of the State will be employed to defeat it. If this case arises, or is likely to arise, I shall promptly declare martial law and suspend the civil authority.

In connection with this subject it becomes of the greatest importance to consider the extent of the President's authority over the militia of this city and State. By the first section of the act of July 29, 1861, chapter 25, the President is authorized to call forth the militia of any or all the States whenever, by reason of unlawful obstructions, combinations, etc., it is impracticable, in his judgment, to enforce the laws, etc. This and section 2 of the same act are substitutes for sections 2 and 3 of the act of February 28, 1795, chapter 36. The Supreme Court of the United States (12 Wheaton, Martin e's. Mott) held that “the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Though not in the order of dates, I begin with this interpretation because it is applicable to all the cases that can arise for the exercise of the President's power under the acts authorizing him to call forth the militia.

In view of the difficulties existing here, there is another question of pre-eminent importance.

Has the President authority to address his orders to particular officers of the militia to call out the troops under their command without a requisition upon the Governor of the State? Or, to suppose a case for the exercise of the power: Can the President order Major-general Sandford to call out his command to resist unlawful obstructions to the execution of the act for enrolling and calling out the national forces? In the case of Houston vs. Moore, 5 Wheaton, the Supreme Court of the United States, by Justice Washington, said: “The President's orders may be given to the chief executive magistrate of the State, or to any militia officer he may think proper.” This power is expressly given in the first section of the act in cases of invasion or danger of invasion. The Court considered it applicable to the cases of insurrection and obstructions to the execution of the laws. It held that “the act of the 2d of May, 1792, which is re-enacted almost verbatim by that of the 2-th of February, 1795, authorizes the President of the United States, in case of invasion, or of imminent danger of invasion, or when it may be necessary for executing the laws of the United States, or to suppress insurrection, to call forth such number of the militia of the States most convenient to the scene of action as he may judge necessary, and to issue his orders for that purpose to such officers of the militia as he shall think proper."

If I find it necessary to declare martial law, I may also find it necessary to ask the President to call General Sandford's division into the service of the United States, and to address the order directly to him. It may be the more important, as intimations have been thrown out, by persons officially connected with Governor Seymour, that the militia of the city may be used to protect its citizens against the draft in certain contingencies; and it is quite possible that such a contingency may arise in the progress of judicial proceedings instituted to release individuals from the operation of the act for enrolling and calling out the militia.

That there is wide-spread disaffection in this city, and that opposition to the draft has been greatly increased by Governor Seymour's letters, cannot be doubted; and in view of the disastrous effects at home and abroad of a successful resistance to the authority of the United States, I renew the request contained in my despatch of this morning to Colonel Fry, that five thousand more troops may be sent here. With this preparation I feel confident that rioters, as well as the more dangerous enemies of the public order—those who sympathize with the seceded States, or are so embittered by party prejudice as to lose sight of their duties to the Government and the Union—will be overawed; that the draft will be completed without serious disturbance, and the public authority effectually maintained. I have the honor to be, very respectfully yours,

Joux A. Dix, Major-general.

VIII.

(Vol. II., page 92.)

ON THE RIGHT OF THE GOVERNMENT TO MAKE A DRAFT.

Letter to the War Democracy of Wisconsin.

New York, September 9, 1863. GENTLEMEN, I received the day before yesterday yours of the 31st of August, inviting me to attend a Mass Convention of the loyal Democracy of Wisconsin, on the 17th instant, at the city of Janesville. I have not seen the platform, embracing the Ryan address, put forth by the Democracy of Wisconsin, at Madison, on the 5th of August; but it is enough for me to know that you are in favor of “the resolute prosecution of the war,” and of “unconditionally supporting the Government in its efforts and credit in upholding its laws and replenishing its armies until the supremacy of the Constitution shall be established over every State and upon every spot of our domain.” This is my own purpose; and I have seen, with the deepest regret, manifestations of a determination on the part of a portion of the Democracy of the country to withhold its support from the Government in carrying on the war, on account of certain errors of policy, thus giving aid to the public enemies who are in arms against the Union and the national life. This determination, if persevered in, will inevitably betray the Democratic party into a course of action which will be fatal to it, by leaving it at the close of the war, now not far distant (if we are united), in the same relation to the country in which the Federal party was left at the close of the war of 1812.

I cannot accept your invitation to address you. My public duties demand my constant presence here; and I believe I can be most serviceable to the country by confining myself strictly to the discharge of those which are devolved on me by my military command. But I take pleasure in responding to your request to write to you.

In a great national struggle for existence, what is the duty of all good citizens? Manifestly to sustain the Government with all their strength. If it is weak, we should rally around it and try to make it strong. If it is guilty of errors of conduct, we should not, for that reason, rush into an opposition which may disqualify it for the great end it is laboring to accomplish; but we should still sustain it, and trust for their correction to the recurrence of the popular ordeal through which every administration is, after a brief period, to pass.

The measure which has produced, perhaps, more dissatisfaction than any other is the President's Emancipation Proclamation. I certainly should not have advised it. I believed that it would prove practically inoperative—that it would only reach negroes who came within our control, and they were, by the laws of war, if we chose so to regard them, free without it. It was purely a war measure; and if the war should cease to-morrow, it would cease to be practically operative, excepting so far as it has been executed. This is, however, a question of interpretation for the courts, and it does not become me to anticipate their decision.

But, putting another construction on it—that it was, as has been charged, the index of a radical change in the policy of the war—of the intention of the administration to make it a war for the abolition of slavery, and not for a reconstruction of the Union on the basis of the Constitution—the only basis, as I think, on which reconstruction is possible—is it wise or patriotic to withdraw our support from the Government on account of it? In a war for the nationality of the country there can be but two sides. The neutral may, it is true, clog the movement of the Government by his dead weight, as the vis inertiæ of matter impedes its motion. But he who, by assuming an attitude of hostility to the Government, embarrasses it in the prosecution of the war, is an auxiliary of the public enemy. The question is, whether war with the Emancipation Proclamation shall be maintained against the rebellion, or whether the rebellion shall be allowed to go on unresisted on account of the proclamation ? In other words, whether aid shall be given to the administration of Abraham Lincoln or the usurpation of Jefferson Davis ?

Great dissatisfaction has also been created by permitting arbitrary arrests by military authority in States which are loyal, and in which the machinery of the Courts is in full operation. Condemnation of these in speech or through the Press is one of the prerogatives of free discussion. But when opposition is carried to the extremity of withholding support from the Government in carrying on the war, or rushing into open resistance to it, a crime is committed, and the public enemy is aided and encouraged.

This is now the imminent danger which threatens the Democratic party. Opposition to the measures referred to has degenerated into opposition to the war. The law authorizing a draft of men to replenish the ranks of the army has been virulently condemned by leading members and leading Presses of the Democratic party, and every effort has been made to defeat its execution and to prevent the Government from getting men under it. It has been denounced as unconstitutional, arbitrary, unprecedented, and a measure of tyranny to which the AngloSaxon race has never submitted. These misrepresentations, sustained in many instances by high authority, have done much to render the measure odious and to defeat its purpose.

Of the necessity of the act I have nothing to say, excepting what all know, that it was found impracticable to keep up the numerical force of the army to the proper standard by voluntary enlistment. It was passed by Congress under a sense of the responsibility which the members owe to the people, and in view of the exigencies of the military service. It is a law, and obedience is a public duty. Obedience to it is more than an ordinary duty under existing emergencies. It is the dictate of patriotism, of the sense of honor, and of the high instinct which impels every man, who is worthy of his country, to obey her call when the Government is in peril.

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