The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1865-10-21
Saturday Morning, Oct. 81, 1865.
From The Nation.
Legal Fictions.

1SzhA e 1CtiOuS. .F.4 aslk
Nothing has been more remarkable during
the war,.than the rapldity with which, slega
tictionsa sprang up as the strife progressed
Generally the sword tears all the lawyers fine
spun webs TO pieces and lays the naked facts
OF the case before the world, but our war has
furnished an exception to the rule. Wien it
broke out, there was vague desire at the
North to strike the enemy somehow or other
through slavery; but everybody was afraid for
long time to say so. In 1861, he who talked
either of taking away the slaves Of the rebels,
or even of not returning them if they ran
away, incurred imminent risk of being consid-
cred fool or "vandaL" In the midst Of the
general perplexity came General Butler, and
covered himself with glory, and diffused gen
eral comfort through the community, by pro-
nouncing the negro 'contraband OF war
10 have retained a runaway as a man would
have shocked everybody; but to retain him as
material" satisfied all consaieIices Every
body knew it was fiction, the hJimbug Of the
thing was transparent; but if the General had
discovered the art Of shooting round corner,
he could not have filed the public with great
er envy and admiration than that excited by
the invention OF this potent phrase V
When the Emancipation Proclamation was
issued, it gave prodigious impetus to fiction
mongering. To have said openly and frankly
that it was desirable to. abolish slavery be-
cause slavery was sin and a curseto the COM
munity-a constant source Of danger and cor
ruption-would have thrown thousands into
convuIsions. So long and elaborate pamphlets
were written to show that the Southern ne
groes stood in the position of mules and oxen,
and that when Mr. Lincoln sought to take
them away from their masters, far from being
guilty of using his power to give freedom to
slaves, he was simply depriving the enemy OF
so many head of CATTLE which, as general he
had right to do.
A little later it became necessary to try a
number of great scoundrels for frauds and
other offences calculated TO diminish the eff
cheney of the army. For some reason or 9TH
er, it was found disagreeable to say that the
country was under martial law, SO it was pre-
: tended that all contractors, and even all per-
sons who sold anything to the government,
newspaper correspondents and such like, were
in the naval or military service Of the United
States, and therefore subject to trial by court
martial, no matter where they exercised then
vocation. We remember last winter hearing
"a rising young lawyer" produce before a large
audience a little fiction, yhich for rare and
curious workmanship could hardly be matched
out of China. In order to make the would-be
assassin of Mr.. Seward liable to trial by court
martial, he laid it down that anybody who at
tackled military officer of the United States
in time of war, became, ipSo fac5o, amenable
to military jurisdiction. Mr.. Seward was a
military officer of the United States, mas
much as he counteTsigned 40rders1 of the
President, who was commander-in-chief ergo,
etc.
Mr.. Seward himself with the lawyers habit
of mind still strong upon him, occasionally
turns out a fiction himself which may COM
pare favorably with the best efforts of the pro-
fession; as when, the other day, he denied
4bo4 10 C0unrnYaQylt had QVpr
been de fdcto government, because the Uni
ted States had always refused to recognize
it" as such. Now, fact is tact, whether il
be recognized or not; and ii the rebels were
able to raise armies, and fight battles, aud
collect taxes, they were de .fGct0 a govern
ment, though the whole Of tine rest OF Chris
tendon were to swear they were not. Tnis
may be unpleasant, but it was still fact. II
a man meets a drunken vagabOnd of a. rela-
tive in the street, he may IGNORE" him, bat
the rascal still remains in the flesh, and pre-
serves his consciousness.
The latest and perhaps the best Of all the
gfictons is the doctrine that the President is
in all hisdoings at the South, acting strictly in
accordance with the law as laid down by the
Constitution. This was invented by the con
scrvatiyes for the purpose Of bringing the rad
icals to confusion, by holding them up-to- the
& world as law-breakers or counseilors of law
breaking. The proposition that the Southern
States should for any purpose be treated as
conquered territory has accordingly been de-
nounced as monstrous, the fact being that
President Johnson's whole plan of recopstruc-
ton is based on the assumption that they are
conquered territory The real difference be-
tween him and his opponents is not as to the
nature of his power, but as to the use he
makes of it. There is no such officer as a
provisional governor" known to the Consti-
tuition of the United States. There Is no ma
chinery provided by the Constitution, for i'm.
posing upon States "that have never been out
of the Union" conditions of their re-adlnissior
to it, The notion that Mr.. johnson eanno
interfere with the suffrage in the revolteC
States is pure double-retined fiction. Fine
and recoveries" were nothing to it. He is in
terfering with it for every purpose he pleases