Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 3.
Frank Moore, Ed.

Doc. 18. Gen. Fremont's proclamation.

Opinions of the press.

It is agreed on every hand that exigencies [34] may arise in the history of every nation when the exercise of this extreme resort by the military arm of the Government is not only to be justified, but is demanded by the gravest considerations of love of country and of devotion to written constitutions and laws, as well as of reverence for national honor and regard for public safety. There is no difficulty at all in the settlement or statement of this general principle. It is only the time, place, and circumstances of its application which give rise to a diversity of judgment, according, it may be, to the honest opinions of different individuals, impressed by different convictions of public duty and necessity; or, as oftener happens, according to the prompting of those popular passions which sway whole masses of men in one or another direction, according to the antecedent bias of their inclinations. Those who, without inquiry, are always swift to approve or swift to denounce any and every measure taken by the Government in the present crisis are at least alike in this one respect — that their praise or their censure passes as of little worth with reflecting minds.

As a specimen of the stereotype rhetoric brought by the secession press to the appreciation of the proclamation just uttered by Gen. Fremont, we quote the following from the columns of the Louisville Courier:

It is an abominable, atrocious, and infamous usurpation, by a military subordinate of the President, of powers which are to-day neither exercised nor claimed by the most despotic ruler in Europe — a usurpation which nothing could justify or excuse; a usurpation which outlaws the contemptible tyrant who thus would reduce to a slavery worse and more abject than that which prevails on Southern plantations the white free men of a sovereign State; a usurpation which, authorized, sanctioned, and approved as it is by the President, must open the eyes of the people of the entire country and the whole world to the designs of the Administration at Washington to crush out the last vestige of free government here, and establish in its stead an absolutism more despotic and as irresponsible as that of Turkey.

We have said that there is no difficulty in the discussion raised by the question of martial law, considered as an abstract proposition. It is only the practical relations of the subject which present legitimate points of dispute, and this arises from the very nature of the circumstances which give to martial law at once its origin and sole justification. On this head the language of jurists is explicit. They all teach that the military power may be rightfully used, according to the usages of war, in the most effectual manner, for the suppression of rebellion, until, by the re-establishment of the regular course of the law in places where it is subverted or obstructed, there is no longer occasion for its employment. It is in the necessity which, for the time being, requires and justifies the resort to military force that martial law has its origin and authority. It is a law of force, measured in its power and duration only by the necessity that calls it into exercise. It cannot be prescribed and limited with precision in advance. It exists, because the civil law which forbids and punishes, on conviction, the treason which imperils the State, is powerless at the time to resist its progress. It moves too slowly for an emergency that requires the most prompt and vigorous action. Like the right of self-defence by an individual assailed by lawless violence, it is the law of necessity alone which allows a resort to violence to repel and subdue the assailant. The degree of force to be applied, or the manner of its application, can neither be determined beforehand nor measured at the moment with scrupulous accuracy. He who is compelled to resort to it, whether as an individual, or as a military commander within the district intrusted to his defence against actual or menaced invasion or rebellion, must act under a due sense of responsibility to the laws, when the danger has passed, for the justification of his conduct during the impending peril. These are the general principles on which the theory of martial law proceeds, and, implicated as they are with questions of fact, it is easy to perceive how completely the grounds of every such high proceeding by a military commander must be remitted to his own peculiar knowledge of the public necessities under which he assumes to act.

In the present case we observe that the organs of public opinion in Missouri accept a declaration of martial law as better than the anarchy and lawless violence to which, in large portions of the State, society is a helpless prey. The St. Louis Republican, a Democratic journal, suspected at one time of secession sympathies, (though never, we think, with justice,) holds the following language in commenting on Gen. Fremont's proclamation:

Much as we regret the occasion for declaring martial law throughout the State, candor compels us to say that the necessity must be accepted as one of the least evils among those with which we have been threatened. It is better to stay at home with feelings of safety than to be driven off with the fear of death. Let the law be ever so strict, condign, or summary, it need only alarm the guilty, for it is the surest protector of the innocent. There are thousands of people in this State who need protection from the brigands and marauders who infest nearly every county. We should be willing to relinquish a portion of our own liberties to make these outlaws feel that they cannot longer pursue their schemes of murder and rapine with impunity. When they have been taught obedience to the civil law, it will be time to take away the military spurs from the operation of civil law. But they should learn that they cannot claim the protection of the Government while they refuse to be governed, and that obligations under the laws are mutual.

The desperate state of affairs in Missouri, and the existence of which is deemed more unendurable than any or all restraints of martial law, is thus described by the same journal:

The secessionists of Missouri have undertaken to make this State too hot for those who love the Union and the Constitution of our fathers. Pretending to build the edifice of disunion on the doctrine of State rights, they wage war upon the State as well as upon individuals. And their way of waging war! Shooting into passenger trains; lying in wait, in ambush and behind stumps, to fire upon some defenceless traveller; placing kegs of powder upon railroad tracks; calling citizens out of their beds at night to tar and feather or hang them; robbing fields of their crops, orchards of their fruits, farms of their stock; burning bridges and depots; setting fire to barns and dwellings, and establishing such a reign of terror as is making women and children frantic, and driving peace-loving inhabitants from their homes by scores and hundreds.

What can persons who fight their battles in this way expect from a powerful and indignantly aroused Administration? Vigilance and vigor, firmness and force, must be exercised and ought to be expected when such abominable and atrocious lawlessness is to be dealt with.

We presume that no loyal citizen of Missouri has any admiration for martial law, either in the abstract or the concrete; but just in proportion to his abomination of its rigorous code is his greater abomination of the bloody lawlessness and predatory brigandage which, in turning every man's hand against his fellow throughout the State, has seemed to make this terrible expedient the only remedy for such deep-seated and wide-spread disorders.

That the apologists of secession should denounce the proclamation without haying a word to say in condemnation of the ruthless maxims and practices that mark the warfare waged against Union citizens in Missouri, was of course to be expected. With them nothing is “atrocious” if committed in the service of their desperate cause. It was to be expected that this class of critics would find a text of special indignation and simulated alarm in the following clause of Gen. Fremont's proclamation:

The property, real and personal, of all persons, in the State of Missouri, who shall take up arms against the United States, or who shall be directly proven to have taken an active part with their enemies in the field, is declared to be confiscated to the public use, and their slaves, if any they have, are hereby declared free men.

We shall not undertake to appreciate the designed force, effect, or extent of this declaration, or the legal measures which may be subsequently taken either to consummate or to restrain the policy it contemplates. We purpose simply to call the attention of our readers to the fact that that policy is but the formal announcement of what was long foreseen and predicted as a possible incident of the war in States whose citizens preferred to trust for the security and protection of their property to the Government of Mr. Davis, rather than to the Government of the Union. To this effect Mr. Secretary Cameron held the following language, in a letter of instructions addressed to Major-General Butler, under date of August 8th:

It is the desire of the President that all existing rights, in all the States, be fully respected and maintained. The war now prosecuted on the part of the Federal Government is a war for the Union, and for the preservation of all constitutional rights of States and the citizens of the States in the Union. Hence no question can arise as to fugitives from service within the States and Territories in which the authority of the Union is fully acknowledged. The ordinary forms of judicial proceeding, which must be respected by military and civil authorities alike, will suffice for the enforcement of all legal claims. But in States wholly or partially under insurrectionary control, where the laws of the United States are so far opposed and resisted that they cannot be effectually enforced, it is obvious that rights dependent on the execution of those laws must temporarily fail; and it is equally obvious that rights dependent on the laws of the States within which military operations are conducted must be necessarily subordinated to the military exigencies created by the insurrection, if not wholly forfeited by the treasonable conduct of parties claiming them. To this general rule rights to services can form no exception.

As the declaration of Major-General Fremont is expressly restricted in its application to men “who shall take up arms against the United States, or who shall be directly proven to have taken an active part with their enemies in the field,” it will be seen that he simply gives formal and particular expression to the general rule prescribed by the Government in the concluding paragraph above recited. As the Administration has expressly declared that no such question can arise as to fugitives from service in States “which acknowledge the authority of the Union,” it follows that any and every disturbance of rights of property accruing under the laws of States “which are wholly or partially under insurrectionary control” should be attributed to the procuring cause of such disturbances, and not to any voluntary delinquency of the National Government. Those who take up arms for the overthrow of the latter have surely by that act waived all right and title to the protection of the Government, either in their persons or property. The declaration of Gen. Fremont under this head, however construed, would merely present, on the side of the National authority, the alternative already clearly, if tacitly, confessed to himself by every one who actively aids and abets in the violent destruction of the Government.--National Intelligencer, September 7. [36]

martial law in Missouri.--We have said that we condemn and regret the proclamation of General Fremont establishing martial law in Missouri and confiscating the property and setting free the slaves of the rebels of the State found in arms against the United States. We hope that the portion of the proclamation relating to slaves will be repudiated by the Administration. Certainly, there is nothing in the United States military operations in Missouri to authorize the belief that it has the Administration's approbation.

We have looked with some interest to see what the St. Louis Republican would say of the proclamation. That able and influential paper, which has shown all along a strong disposition to judge the Administration severely, seems to approve the measure. Some may suppose that it is influenced in what it says by the terrors of martial law, but surely it might have adopted the safe policy of saying nothing, if afraid to speak its true opinions. It is unquestionably in a favorable condition for appreciating the necessities and requirements of the hour, and we therefore republish what it says:

martial law proclaimed in Missouri.--It has not taken us by surprise that martial law should be proclaimed in Missouri. The course of the secessionists, headed by Jackson, and the invasion of the State by armed troops of the Confederate States, with the aid and comfort given to them by thousands of misguided, and ill other cases reckless citizens, made it an inevitable necessity. It has not come too soon, and as Gen. Fremont has it now in his power to enforce his commands, we hope to see its beneficial effects made manifest all over the State in a few days. We know that martial law is a new thing to our people, and an unpalatable thing to many who do not stop to consider the actual condition of the country. Until now, there has never been an occasion for a resort to so extreme a measure for the safety of the State. But it is the only one left to us. Let us examine the matter a moment. By no act of the people of the State of Missouri have they, at any time, betrayed any anxiety to dissever their connection with the United States. When the question has been distinctly put to them, they have, at the polls, and by their representatives in Convention, declared their fidelity to the Union--and this is the position which they hold at this hour. But Missouri has been invaded by troops from a power engaged in making war upon the United States, of which she is a member. A large portion of her territory has been overrun and laid waste. Many lives have been sacrificed by them. The appeals of a man who had absented himself from the State, and who had been deposed from his position as Governor by competent authority, have been heard by a portion of our people — they have taken the alternative of arming themselves and of putting themselves in hostile array against the Government of the United States and of the State--they have committed countless offences against law and order, and in the absence of sufficient power in the State to drive out these invaders and to quell these disturbances, the military power of the United States steps in to punish these outrages and to restore peace to the State. No good citizen will deny that this interference was inevitable and even compulsory on the part of the military chief of this department. In no other way than that suggested by him can peace be restored. Martial law ought to have no terrors for good, law-abiding citizens; it is only those who, in their hearts, and by their conduct, show manifest disloyalty to the State and to the Union, who have any thing to dread from its operation. We appeal to all good citizens of the State, whatever may have been their inclinations, at once to submit to the new order of. things. It will save a world of trouble and disaster, and bloodshed all round. The measure of injury to the State, in all her great interests, is now within the control of her own citizens. We implore them, as they value their own lives and the security of their own property, to assent to the terms of his proclamation, and peace will again be restored to us. Gen. Fremont tells us that the outrages hitherto committed on innocent citizens, by an undisciplined soldiery, will hereafter be repressed, and as he will hold the officers responsible for the acts of their men, this may readily be done, and one great cause of alarm be removed.

Reference has been made to one part of the proclamation of General Fremont, in which it is said:

The property, real and personal, of all persons in the State of Missouri, who shall take up arms against the United States, or who shall be directly proven to have taken an active part with their enemies in the field, is declared to be confiscated to the public use, and their slaves, if any they have, are hereby declared free men.

We are asked whether this would include persons who, having been indiscreet enough to take up arms under Jackson's call, afterward availed themselves of the amnesty granted by Gov. Gamble's proclamation, and have since been quiet, loyal citizens. Gov. Gamble's declaration was ample to cover all such cases, and the understanding between him and Gen. Fremont is too cordial to admit of the supposition that any such persons would be molested without having given some other causes of offence. This, at least, is our view of the spirit of the proclamation.

Attaching all due importance to the views of the Republican, we still hope that the proclamation will in some of its features be repudiated by those higher in authority than General Fremont. We must say, however, that the devotees of the Southern Confederacy have little right to denounce it. It is not more harsh toward the enemies of the United States found in arms in Missouri than a late act of the Southern Confederacy is toward all loyal [37] American citizens, whether in arms or not. The law of the Confederate States to which we refer is the one providing that all who do not take the oath of allegiance before the 20th day of the present month are to be treated as alien enemies — that is, their liberty and all their possessions are to be declared forfeited. The Fremont proclamation is not more harsh toward officers and soldiers actually fighting for the subversion of the United States Government than the law of the Southern Government is toward quiet and peaceable loyal citizens. The proclamation confiscates the slaves and other property of men bearing arms against the American Republic, but the Southern law goes to the length of confiscating the slaves and all other property of all persons, non-combatants and others, who decline to forswear their country. If the policy of the Fremont proclamation is wrong, as we think it is, the policy of the Confederate States law is detestable. Those who condemn the former and approve the latter are deplorably destitute, either of sincerity or of sense.

Unquestionably, however, a very odious feature of the confiscation announced by the Fremont proclamation is, that it declares the confiscated slaves free. To declare them free instead of confiscating them to the State, may be unselfish, but it is dangerous and odious, and should, and, we trust, will, be promptly repudiated by the Government.--Louisville Journal, Sept. 3.