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TO THE REV. LEONARD BACON,. D. D.,
NEW HAVEN, CONN.
SIR, — I have undertaken the performance of a duty which some one owes to the profession of the Law, and to the community generally; and the obligation rests upon me, perhaps, equally with others. It is the duty of vindicating the right of the gentlemen of the Bar to form their opinions upon legal subjects, and especially upon the construction of the Constitution of the United States, and to express those opinions in any manner consistent with due courtesy to others, without being subjected to censure, sneers, abuse, and vituperation, by a class of clergymen who assume to know more of Constitutional law than the tribunals and officers created and constituted for the purpose of discussing and determining legal questions. So long as this assumption by clergymen was confined to dogmatic opinions, sneers, and mere censure, it might be, and was in a great measure, overlooked; but when, as has lately been the case, clerical gentlemen have proceeded to denounce lawyers who differ from their notions of Constitutional law as “ disloyal,” “sympathizers with the rebels,” “ traitors,” &c., the matter assumes a more grave aspect; and it becomes important that the pretensions of this portion of the clergy to a better knowledge of the rules by which the meaning of the Constitution is to be ascertained should be fairly examined. This is not a mere matter of professional esprit. If the clergy really have the best set of rules by which to determine our Constitutional rights and duties, then those rules should be recognized, so that the construction of the different clauses of the Constitution, and of the powers of those who administer the gov. ernment under it, may be as uniform as the nature of the case will admit. If, on the other hand, the mode of reasoning which this class of clergymen apply to the subject is altogether fallacious and inconclusive, leading to inconsistencies and contradictions, then it is quite time that it should
not be made the basis upon which the opinions of lawyers are to be depreciated and substantially overruled, and those who entertain the opinions denounced as the enemies of the government and of liberty. I am fully aware that among the lawyers themselves there is a difference of opinion upon various questions of Constitutional law. But that is not at all material to the present inquiry, which has no reference to the differences of construction by different lawyers, but is, whether clergymen are entitled to pass final judgment, and overrule any and all lawyers with whom they differ on such subjects. Connected with the inquiry, in the present instance, is another, to wit, — what are the reasons upon which this class of clergymen found their support of the Proclamation of Emancipation, as a measure authorized by the Constitution ? In pursuit of the object above indicated, my studies, for a few days past, have been somewhat more than usual within the columns of “The Congregationalist;” and I find in the number issued October 31, certain “Views from a Watch Tower,” respecting “ the Great Proclamation.” The contents of the article seem to place it within the scope of my inquiries; and an editorial note in another column says, “Many of our readers who for several weeks have been looking for Dr. Bacon's views of the Proclamation, will find them given at length in the ‘Watch Tower’ column.” I address this letter therefore to you. You say, in the outset, that you “have not been in a hurry to give out your thoughts on the President's great Proclamation,” and that what you say in the article “is the result of some deliberate thinking.” The matter is of course entitled to a more grave consideration than it would have been had you been “among those who spoke first,” in which case, as you well say, you “might have spoken inconsiderately.” Having endeavored with some care to ascertain the “Views” expressed after such deliberation, it appears that, so far as they are material to the present purpose, they may be summed up as follows:– 1. That—
“The proclamation is made at a time when its necessity, as a war measure for the preservation of the Union, can no longer be doubted
by any man truly loyal to the Constitution. The long delay, whether wise or unwise, has made the necessity too manifest to be disputed, except by those who have so long paid a debasing homage to slavery, for the sake of "saving the Union, that they are now willing to sacrifice the Union for the sake of saving slavery. All such persons, South or North, are in fact disloyal to the Constitution.”
“ The time has come when all men are compelled to see that either the Union must be broken up; or, the rebel States must be brought back by the concession of great Constitutional changes adverse to liberty, and to the principle of government by majorities; or, the war must be indefinitely prolonged; or, that policy must be adopted which recognizes the rebels, not as a political party, whose opposition to the government is a little irregular, and must be gently corrected, but as enemies to be destroyed. If such a policy is adopted, then the territory held by the rebels must be recognized as hostile territory, to be conquered and reannexed. If such a policy is adopted, the war against the rebels must be war in earnest, and we must cease to be hampered by any supposed necessity of helping the rebels against their own domestic enemies, or by imputing any validity whatever to their laws for the enslaving of the negroes.”
“The proclamation is made at a time when everybody knows that if the Union is to be saved, and the Constitution is to stand as it is, and if the war is not to be interminable, the preposterous policy which regards the enslaved as property, and property in slaves as preëminently sacred, must be abjured at once and forever."
4. That you
“ Cannot avoid the conviction that the men who oppose the proclamation, and talk about bringing the war to an end in some other way, expect nothing else and intend nothing else than some concession to the rebels, which shall either divide the Union, or subvert the Constitution.”
5. You say,
“The proclamation, then, marks a definite stage of progress in the prosecution of the war. Henceforth, the war is not merely a military demonstration, to put down a disturbance in certain districts, where the machinery of a legitimate government under the Constitution is supposed to be still in operation ;- it is now the earnest reality of war to crush a powerful and desperate enemy, -- to regain by conquest a wide territory, which has been wrested from the people of the United States, to whom it rightfully belongs, - to establish the Constitution and the larre of the Union in regions over which, at present, they have no mors or force than they have in Patagonia."
6. You say —
“Concerning the Constitutional power of the President to issue such a proclamation, I have no shadow of a doubt.”
7. You add—
“I am aware that some lawyers have undertaken to argue from the Constitution, against the right of the President to do what he has done in this respect.”
8. And to the above you add, further, —
“But though a hundred lawyers should undertake to convince me that the government is restrained by the Constitution from defending its own existence in a civil war, or that there is any one of the rights of a belligerent which it may not exercise in the territory of a State which has rejected the Constitution, and made war upon the Union, they can never impose that absurdity upon me, nor upon any man who is not willing to abnegate his own common sense in favor of somebody else's professional sense.”
9. To this is subjoined,
“I have a great respect for lawyers in their place, but I must be permitted to remember that lawyership is not the same thing with statesmanship; and to insist that the Constitution of the United States, like the Bible, is to be interpreted by the common sense of the people.”
“Find that though Congress has the right to declare war, the President alone has the right to make war.”
And thereupon you say —
“To my common sense, the right and the duty, to make war against the enemies of the United States, be they foreigners or rebels, involves, or rather is the right and the duty of conquering and crushing them by every legitimate method of war.”
You then inquire —
“Has the President a right by the Constitution, and is it his duty to wage war in South Carolina, – has he a right and is it his duty to bombard cities, to burn villages, to cut down groves and forests, to obstruct harbors, to turn rivers from their channels, and to mow down regiments of men in battle, when these measures are necessary to a speedy and thorough conquest, — has he a right to do all this in defiance of the only government and laws now existing in that State, – and has he not a right to proclaim that, after a certain day, unless the people of that State shall in the mean time reëstablish a State Government under the Federal Constitution, no distinction shall be recognized among them but the distinction between friends and enemies of the United States, and that every friend, whatever his former condition, shall be recognized and protected as a freeman?”
Whereupon you exclaim
“Shame on the law-logic which undertakes to mystify our common sense.”
11. You ask further
“ If the President, or a military commander, acting by his authority, may seize private property, when needed for military purposes — if he may take cotton, provisions, forage, horses, and all sorts of cattle, from the loyal as well as the disloyal - giving to loyal owners an assurance of indemnity hereafter; may he not also take this property with a like assurance of indemnity to loyal owners ?”
12. You take a distinction:
“Instead of proclaiming the universal and perpetual abolition of * slavery in the United States, the President only offers freedom to certain slaves. This is correct. Abolition is an act of political sovereignty. Emancipation may be, and in this case is, a military necessity. Meanwhile, just as fast as our armies advance, and just as fast as slaves of rebel masters come within our lines, the process of actual emancipation is going on under the acts of Congress, and it could not be accelerated by any proclamation."
13. Another distinction :
“The President has no right to emancipate any slave on the ground that slavery is wrong, but he has a right, as Commander-in-Chief of the Army and Navy, to proclaim the emancipation of slaves on the ground that their emancipation is necessary as a means of crushing the rebellion."
14. Is an admission :
“Let it be remembered that the President of the United States is not an autocråt like the Emperor of Russia, he is a public servant, whose powers are strictly limited.”
The foregoing propositions are extracted from your article in your own words. I have preferred to give them in this mode, instead of abbreviating by an abstract, in order to avoid all cavil; and I have endeavored to give faithfully all your propositions which are material to the due understanding of your legal and Constitutional doctrines, omitting nothing which introduces any material qualification to what is above stated. Part of the italics are mine, for the purpose of calling attention to some of the more material portions.
The 7th, 8th, 9th, and 10th serve to mark your estimate of the opinions of lawyers in relation to the subject-matter, and the manner in which you see fit to place the profession before