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The Proclamation in Court.


January and February 1863

From The Missouri Democrat, Friday, January 30, 1863.


First Decision Under the Emancipation Proclamation of President Lincoln.

Judge Clover, of the Criminal Court, Decides a Fugitive Slave from Arkansas to be a Free Man.




Benjamin Williams, a black man, was, at the January term of the St. Louis Criminal Court, indicted for the offence of grand larceny, for the stealing of various articles of personal property, as well as money, the property of Melinda Ellis, and from the dwelling house of the said Melinda.

The case was brought to trial on the plea of not guilty pleaded, and the prisoner was duly and, as I think, common properly convicted of the offence.

The statute law of the State of Missouri (sec. 36 of art. ix. of the act concerning crimes and their punishments, Rev. Stat,, vol. 1, p. 645) declares: When any slave shall be convicted of a felony punishable by imprisonment in the penitentiary, the Court before whom such conviction shall be had shall sentence the offender to receive on his bare back any number of stripes not exceeding thirty-nine.

When the offense charged in the indictment is committed by any other person (except a person under the age of sixteen years) the offense is punishable by imprisonment in the penitentiary not less than two nor exceeding seven years. So that if the prisoner be a slave, the Court must sentence him to receive on his bare back any number of stripes not exceeding thirty-nine; if he be a free man the Court must sentence him to be to imprisonment in the penitentiary for a number of years.

The Court must determine the status of the prisoner and declare whether he be bond or free, so that the proper punishment designated by the law may be meted out to him; and in this the Court has no discretion except as to the quantity of the punishment, none as to the quality of it. I am therefore called upon to pronounce upon the condition of the prisoner, whether he was a free man or whether he was a slave at the time of the crime committed, and which from the undisputed testimony of witnesses was on the 6th day of January of the present year.

As the prisoner is a black man, in the absence of testimony on the point, in this, as in all slaveholding States, color raises the presumption of slavery, and, until the contrary appears, a Negro is to be deemed a slave [per Napton, J. Rennick vs. Chloe–vil Mo. Rep., p. 197]; and therefore presumably from color the prisoner is a slave. There is testimony upon this point, however. To establish the condition of servitude on the part of the prisoner, his counsel introduced a witness, the mother of the prisoner, who swore to the following state of facts, and which are not disputed:

That the prisoner’s real name is Benjamin Douglass, and he is about twenty-three or four years of age; that Ben was born a slave in the State of Mississippi, and was at the time he left Arkansas, about two or three months ago the property of one nature David Thrailkill, who lived about sixteen miles from the city of Helena, in the State of Arkansas; that witness, with this son and four other children, left Arkansas by the direction of her husband, having the opportunity to do so, and at that time when, according to her account, the masters and mistresses of slaves in her neighborhood were collecting their slaves together and removing them from the Union lines in the approach of the Federal forces. The mother and children are fugitives from slavery against the will of their master, who, as witness was informed, was at the time a prisoner to the Union forces.

The Circuit Attorney asks that the prisoner be sent to the Penitentiary as being a free man under the proclamation of the President, and liable to the punishment of free men. The counsel for the prisoner insists that the prisoner is not a free man but a slave, that the proclamation of the President was without authority either under the Constitution, or under the law of nations, and is, therefore, void and of no effect; and that the prisoners should be sentenced to corporal punishment and thereon discharged.


On the first day of January, in the year one thousand eight hundred and sixty-three, the President of the United States issued a proclamation, whereby he proclaimed, that as President of the United States, by virtue of the power in him vested as Commander in Chief of the army and navy of the United States in time of armed actual rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing the rebellion, he did, by virtue of the power, and for the purpose aforesaid, aver and declare that all persons held as slaves within certain designated States and parts of States, are, and thenceforward should be forever free, and that the Executive Government of the United States, including the military and naval authorities thereof, would recognize and maintain the freedom of said persons, and the President designated in and by said proclamation, the State of Arkansas as being one of the States in and over which the proclamation should have force, operation and effect. And the President in said proclamation further declared, that he sincerely believed, the act (the act of freedom) to be an act of justice, warranted by the Constitution, upon military necessity, and thereon invoked the considerate judgment of mankind, and the gracious favor of Almighty God.

If the defendant is a free man, he is free by virtue of this proclamation, by virtue of being within its terms and benefits, because the evidence in the cause shows that he is a black man born in a slave State, of a slave mother, and that he has never been personally manumitted from slavery.

It therefore becomes necessary to determine the effect of this proclamation upon the person of the prisoner; whether it affected his legal status, and from the condition of slavery caused him to be newly born, as it were, a free man, or whether, on the other hand, it had no function or operation by reason of its invalidity or any other cause, or by reason of its having no effect or operation upon the particular case of the prisoner. The question might arise in limine.

Will the Court take judicial notice of the proclamation of the President? I answer yes. The general laws and customs of the country are recognized without proof by the courts of all civilized nations. Nor is it necessary to prove any matters of public history affecting the whole people, nor public matter affecting the government of the country.

Courts are also judicially recognize the political constitution or frame of their own government, its essential political agents are public officers sharing in its administration, and it’s essential and regular political operations, powers and action; also of public proclamations of war and peace; in fine, will generally take notice of whatever ought generally to be known within the limits of their jurisdiction. [Greenleaf on the Law of Evidence, chapter 1, passim.] I am of opinion that the proclamation of the President is such political operation and action of the government as comes within the very letter of the law cited, and that the court ought, as it does take, judicial notice thereof.


Since counsel learned in the law and of standing in the profession have questioned the authority of the proclamation, it is necessary that I should judicially affirm or negate the authority, and I attempt to do so with the greatest deference to the opinion of the many others who differ with me in the opinion that the proclamation was and is a lawful operative and essential act of government, binding upon the government and binding upon its people.

John Quincy Adams filling, in his time, the highest, as well as many subordinate offices in the government in a time of peace, but not in a time free from political excitement, declared in his place on the floor of the House of Representatives, and gave his deliberate opinion as to the existence of this power.

This he could never have done, except it was his well grounded and entertained opinion upon the matter, and though his mortal eyes were spared the scene of his countrymen engaged in fratricidal strife, yet undoubtedly in the stormy scenes in which the last years of his public life were passed, he must have contemplated that with which these latter days have brought to pass, and conceived of this measure as a measure which might lawfully be adopted as a means of that warfare. I give his opinion, not of a politician or a partisan, which by some he may be pronounced to have been, but as the opinion of a statesman, publicist and legist, whose opinion deliberately formed would be weighty on any subject arising under the Constitution and law of nations.

I mentioned his name, also, first, in consideration of the case, because he is the only American statesman that I know of who has given any opinion upon the point expressly, either favorable or adverse to the existence of the power; while I believe that the question has never been directly discussed by any writer on the law of nations, at least by any of whom I am informed.

I might here also remark, that it is not a question of much importance, if the power exists, whether it be deducible from the Constitution or extracted as a principle from the law of nations.

To proceed, then, I quote this language as authority in point:

“It has been observed that we may be obliged, if not externally, yet in conscience and by the laws of equity, to restore to a third-party the booty we have recovered out of the hands of an enemy, who had taken it from him in an unjust war.

The obligation is more certain and more extensive with regard to a people whom our enemy had unjustly oppressed; for a people thus spoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the State by which they have been subdued; if they have not freely aided her in the war against us, we certainly ought to so we so to use our victory is not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory; it is a valuable advantage gained, thus to acquire a faithful friend.”-[Vattel’s Law of Nations, p. 391.

I do not cite this passage from the eminent writer as being entirely applicable to the condition of things now existing in our country. I do by no means undertake to affirm, nor would I be understood as favoring the idea that the relation of African slavery as it exists here is to be assimilated fully to the condition of a people whom our country had unjustly oppressed, and wherefor the nation might deliver from oppression, but I do think that the law quoted makes an analogical argument by which the validity of the proclamation may be sustained.

If it be lawful, as Mr. Vattel declares it is, to effect this thing in the case of a foreign enemy, I see no reason why it would not be so in the case of a domestic one. I know of no right or power which one nation possesses which another has not. If the right exists as the right of a nation, affirmed and recognized by the law of nations, it exists as well for a chartered as an unchartered government, for a representative as for a kingly government, and as applicable to a domestic as to a foreign foe.

If the necessity of war requires the application of the proclamation over an extent of country indiscriminately, rather than to particular individuals, this would be justified upon principle, for if the proclamation applied to particular individuals in that extent of country, such action on the part of the Government would partake of the character of judgment upon the offender as punishment for a real or supposed offense, while in the other case it partakes solely of the character of a political measure.

The counsel for the prisoner who argued this case so learnedly and so eloquently was necessarily led to the assertion of the principle that the Congress of the United States would have no more right to pass a law in the nature of the proclamation than he conceives the President has, denying to both branches of the Government equally any such right or power.

And in the same breath with this assertion he quotes from this same author (Vattel) the declaration and remarks:

“Let us begin by laying down the rights of a nation engaged in a just war; let us see what she is allowed to do to her enemy. The whole is to be deduced from the one single principle from the object of a just war: for when the end is lawful, he who has a right to pursue that end, has, of course, a right to employ ALL the means which are necessary for its attainment. The end of a just war is to revenge or prevent injury, that is to say to obtain justice by force when not obtainable by any other method; to compel an unjust adversary to repair an injury already done, or give us securities against any wrong with which we are threatened by him. As soon, therefore, as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, for the purpose of bringing him to reason, and obtaining justice and security from him.

“The lawfulness of the end does not give us real right to anything further than barely the means necessary for the attainment of that end. Whatever we do beyond that is reprobated by the law of nature, is faulty and condemnable at the tribunal of conscience. Hence it is that the right to such or such acts of hostility varies according to circumstances. What is perfectly just and innocent in war, in one particular situation, is not so always on other occasions.

“Right goes hand in hand with necessity and the exigency of the case, but never exceeds them.”

I have quoted largely in this connection from this authority, because in my judgment it contains the very gist and substance of the law upon this subject. Whatever is not expressly malum prohibitum, what is not forbidden by the law of nations, is a proper means of warfare; and I deduce from authority as well as conclude from reason, that in many cases concerning the application of principles of national law to the condition of things, as to the condition of foreign and civil war we are necessarily remitted to the court of conscience and pure equity, as well as for the determination of what those principles are, as for a proper and just course of action under them.

If it be said that by this measure the innocent may be involved in a common punishment with the guilty, this is only an argument against the exercise, not against the existence of the power.

The counsel argues, and quotes from the same authority to sustain his argument, that in this rebellion or civil war the obligation to observe the common laws of war is absolute, indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between State and State.

To this doctrine I yield my hearty concurrence, and I know that my government acts upon this sensible and humane law. When he contends, however, that this measure is not a common law of war, we meet immediately upon the very question to be decided.

What is the common law of war? When he endeavors to illustrate, when he cites the case of a clandestine seduction of the enemy’s people, when he shows that Vattel, the eloquent and humane writer, hints rather than asserts that such proceeding may not be honorable or compatible with the laws of a pure conscience, when he argues that this measure may strike at the foundation of the common safety and welfare of mankind, I cannot look I cannot overlook the fact that the same author in the same connection asserts as well that even these measures are excusable in a very just war, when the immediate object is to save our country when threatened with ruin by a lawless conqueror.

And is not the object of this proclamation to save the country? Not perhaps from the rule of a lawless conqueror–that I pray, God may never be, but still from ruin and destruction. The motto of the coat of arms of our State proclaims an evident principle.

The safety of the people is the chief law. It has, indeed, been pronounced the plea of the tyrant; but inasmuch as despotism is better than anarchy, as a harsh law is better than no law, so times may occur when that shall be the first consideration.

If it be a allowable to save our country at all hazards, when threatened by a lawless conqueror, I think it is equally allowable to rescue it by the same means, the ends being as great, from anarchy, bloodshed and confusion.

The President and the nation must stand before the world to be judged by the nations of the earth, before the court of the general, universal conscience of mankind, for the rectitude of the intention, the emergency of the case, the object to be attained, in the issuance and execution of the principle of the proclamation.

I have not sought this question; the decision of it became necessary in the course of my judicial duty; I could not have avoided it if I would. I have had but little difficulty in arriving at a conclusion in this case. It is true that previous education and reflection upon the subject may have aided me in arriving at this conclusion. It is perhaps difficult for one to throw off long entertained opinions and convictions upon matters of governmental and social policy, and determine a matter of this character in the light of pure science and reason without being affected by these considerations, yet I have endeavored to do so. From the best judgment which I can bestow upon the question, I am of opinion and so declare, that the prisoner is a free man, free by virtue of the proclamation, and that being once a free man he is forever a free man, for I know of no power or law by which a man being once emancipated can be again mancipated.

On the 1st day of January of the present year of grace, the prisoner, then a slave, became rehabilitated with freedom, and though he has again lost that freedom, it is only temporarily; though again placed in servitude for period of his life, it is only that servitude affixed as a penalty for crime, and which has been recognized in all ages and countries under the Mosaic as under the Christian dispensation. I cannot conclude without applying the remarks of the Father of his Country in his Farewell Address to his Countrymen, as suggested by and pertinent to the present condition of public affairs, although not as used or applied by him:

“It will be worthy of a free, enlightened, and at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence. Who can doubt that, in the course of time and things, the fruits of such a plan would richly repay any temporary advantages which might be lost by a steady adherence to it? Can it be that Providence has not connected the permanent felicity of a nation with its virtue? The experiment at least is recommended by every sentiment which ennobles human nature. Alas! is it rendered impossible by its vices?”