Mr. Taylor to Mr. Seward.

No. 30.]

Sir: I have just succeeded in intercepting the accompanying despatch from J. P. Benjamin, who claims to be secretary of state of the so-called confederate government, at Richmond, to L. Q. C. Lamar, who appears to have been chosen by the leader of the southern insurrection to advocate its pretensions at this court. The despatch, you will observe, is an unusually fine specimen of the specious reasonings of the insurgents. It instructs the said Lamar not to permit the introduction of a clause, prohibiting the African slave trade, in any treaty of amity and commerce which the “Confederate States” shall make, after Russia has recognized their independence, because the “treaty-making power” of said States is not authorized to deal with the subject. It is classed among those powers which the said States, “without delegating them to the general government, have thought proper to exercise by direct agreement among themselves”!!

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It is a curious illustration of the combat of the powers of light and darkness for the possession of the world that, on this 3d day of March, 1863, the day of jubilee, on which twenty millions of serfs become free forever, I forward to you an insidious document in the interest of human slavery.

I have the honor to be, with the highest respect, your obedient servant,

BAYARD TAYLOR, Chargé d’Affaires.

Hon. William H. Seward, Secretary of State.

Mr. Benjamin to Mr. Lamar.

No. 1.]

Sir: It has been suggested to this government, from a source of unquestioned authenticity, that after the recognition of our independence by the European powers, an expectation is generally entertained by them, that in our treaties of amity and commerce a clause will be introduced making stipulations against the African slave trade. It is even thought that neutral powers may be inclined to insist upon the insertion of such a clause as a sine qua non.

You are well aware how firmly fixed in our constitution is the policy of this confederacy against the opening of that trade; but we are informed that false and insidious suggestions have been made, by the agents of the United States at European courts, of an intention to change our constitution as soon as peace is restored, and of authorizing the importation of slaves from Africa. If, therefore, you should find in your intercourse with the cabinet to which you are accredited that any such impressions are entertained, you will use every proper effort to remove them; and if an attempt is made to introduce into any treaty which you may be charged with negotiating, stipulations on the subject just mentioned, you will assume in behalf of your government the position which, under the direction of the President, I now proceed to develop.

The constitution of the Confederate States is an agreement made between independent States. By its terms all the powers of government are separated into classes as follows, viz:

1st. Such powers as the States delegate to the general government.

2d. Such powers as the States agree to refrain from exercising, although they do not delegate them to the general government.

3d. Such powers as the States, without delegating them to the general government, thought proper to exercise, by direct agreement between themselves contained in the constitution.

4th. All remaining powers of sovereignty which, not being delegated to the Confederate States by the constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

On the formation of the constitution, the States thought proper to prevent all possible future discussions on the subject of slavery, by the direct exercise of their own power, and delegated no authority to the confederate government, save immaterial exceptions, presently to be noticed.

Especially in relation to the importation of African negroes was it deemed important by the States that no power to permit it should exist in the confederate government. The States, by the constitution, (which is a treaty between themselves of the most solemn character that States can make,) unanimously stipulated “that the importation of negroes of the African race, from any foreign country other than the slaveholding States or Territories of the United States [Page 863] of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.”—(Art. 1, sec. 9, par. 1.)

It will thus be seen that no power is delegated to the confederate government over this subject, but that it is included in the third class above referred to, of power exercised directly by the States.

It is true that the duty is imposed on Congress to pass laws to render effectual the prohibition above quoted. But this very imposition of a duty on Congress is the strongest proof of the absence of power in the President and Senate alone, who are vested with authority to make treaties. In a word, as the only provision on the subject directs the two branches of the legislative department, in connexion with the President, to pass laws on this subject, it is out of the power of the President, aided by one branch of the legislative department, to control the same subject by treaties; for there is not only an absence of express delegation of authority to the treaty-making power, which alone would suffice to prevent the exercise of such authority, but there is the implied prohibition resulting from the fact, that all duty on the subject is imposed on a different branch of the government.

I need scarcely enlarge upon the familiar principle, that authority expressly delegated to Congress cannot be assumed in our government by the treaty-making power. The authority to levy and collect taxes, to coin money, to declare war, &c., &c., are ready examples, and you can be at no loss for argument or illustration in support of so well recognized a principle.

The view above expressed is further enforced by the clause in the constitution which follows immediately that which has already been quoted. The second paragraph of the same section provides that “Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or territory not belonging to, this confederacy.” Here there is no direct exercise of power by the States which formed our constitution, but an express delegation to Congress. It is thus seen that while the States were willing to trust Congress with the power to prohibit the introduction of African slaves from the United States, they were not willing to trust it with the power of prohibiting their introduction from any other quarter, but determined to insure the execution of their will by a direct interposition of their own power.

Moreover, any attempt on the part of the treaty-making power of this government to prohibit the African slave trade, in addition to the insuperable objections above suggested, would leave open the implication that the same power has authority to permit such introduction. No such implication can be sanctioned by us. This government unequivocally and absolutely denies its possession of any power whatever over the subject, and cannot entertain any proposition in relation to it.

While it is totally beneath the dignity of this government to give assurances for the purpose of vindicating itself from any unworthy suspicions of its good faith on this subject, that may be disseminated by the agents of the United States, it may not be improper that you should point out the superior efficacy of our constitutional provision to any treaty stipulations we could make. The constitution is itself a treaty between the States, of such binding force, that it cannot be changed or abrogated without the deliberate and concurrent action of nine out of the thirteen States that compose the confederacy. A treaty might be abrogated by a party temporarily in power in our country, at the sole risk of disturbing amicable relations with a foreign power. The constitution, unless by approach to unanimity, could not be changed without the destruction of this government itself; and even should it be possible hereafter to procure the consent of the number of States necessary to change it, the forms and delays, designedly interposed by the framers to check rash innovations, would give ample time for the most mature deliberation, and for strenuous resistance on the part of those opposed to such a change.

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After all, it is scarcely the part of wisdom to attempt to impose restraint on the actions and conduct of men for all future time. The policy of the confederacy is as fixed and immutable on this subject as the imperfection of human nature permits human resolve to be. No additional agreements, treaties, or stipulations can commit these States to the prohibition of the African slave trade with more binding efficacy than those they have themselves devised. A just and generous confidence in their good faith on this subject, exhibited by friendly powers, will be far more efficacious than persistent efforts to induce this government to assume the exercise of powers which it does not possess, and to bind the confederacy by ties which would have no constitutional validity. We trust, therefore, that no unnecessary discussions on this matter will be introduced into your negotiations. If, unfortunately, this reliance should prove ill-founded, you will decline continuing negotiations on your side, and transfer them to us at home, where, in such event, they could be conducted with greater facility and advantage, under the direct supervision of the President.

With great respect, your obedient servant,

J. P. BENJAMIN, Secretary of State.

Hon. L. Q. C. Lamar, Commissioner, &c., &c., St. Petersburgh, Russia.