all belligerent rights, and the other none of them. If we claim all these rights, we must concede them to the Confed

erates.

There may be an insurrection, and the Government 'may seek to assert its authority by force, in which neither party is entitled to the rights of a belligerent. The two parties might be, as they are in this case, belligerents so far as certain foreign nations are concerned, because of the recognition by such nations of the insurgents as a belligerent party. But, as between themselves, however grave the proportions of the contest, their status is as to each other, that of the preceding lawful authority asserting itself, on the one hand, and rebels attempting to produce revolution, on the other; and all acts of active hostility on the part of the rebels would be treason, and punishable accordingly. But when the Government itself, instead of pursuing its attempt to subdue the rebellion, assumes to itself the character of a belligerent, the rebels are the other belligerent, and there can be no new treason, subsequently, on the part of those who before were traitors. The acts of Congress for the punishment of treason by confiscation, &c., could no longer apply to subsequent acts, as between beligerents there is no treason in acts of hostility.

If the United States may exercise all the rights of a belligerent in the territory of a State which has rejected the Constitution and made war upon the Union, they may conquer the State, without doubt; and after the conquest treat it as a territory, and change its laws. And so, on the other hand, the State which has rejected the Constitution may, if it can, not only conquer the United States, (which is undoubtedly true even if the case was one of mere insurrection), but in the attempt so to do such State would only be exercising the lawful rights of the other belligerent; and if the attempt should fail, those concerned in it would only be subject to the common laws of warfare. The late incursion into Maryland was, on your position, lawful war; and no laws of the United States were broken by the forces concerned in it, so as to subject them to penalties. There are authorities which tend to support these positions, unless they are rejected as "law logic."

General Halleck, speaking of civil wars, says:

"Wars of insurrection and of revolution are, in one sense, civil wars; but this term is more usually applied to those contests which are waged between rival families or factions, for party ascendency in a State, rather than for its dismemberment, or for a radical change in its government. Each party, in such case, is usually entitled to the rights of war as against the other, and, also, with respect to neutrals. Mere rebellions, however, are considered as exceptions to this rule, as every Government treats those who rebel against its authority according to its own municipal laws, and without regard to the general rules of war which international jurisprudence establishes between sovereign States." Halleck's International Law and Laws of War. Chap. 14, sec. 9.

Unquestionably, if an insurrection involves large numbers of people, and the hostilities thereupon assume the proportion and character of a grave contest of arms, the contending parties must, in the exercise of an ordinary humanity, do many things according to the recognized rules of war between independent nations, such as exchange of prisoners, &c. This will not be inconsistent with the assertion of the rightful supremacy of the existing Government over the rebels, and the right to treat their acts of hostility as treason. But in proportion as the ordinary laws of war between independent nations are applied to the existing hostilities, in that proportion the impropriety of regarding the case as one of mere rebellion, incurring the penalties of treason, will increase. If the Government, failing to suppress the rebellion, assumes to itself all the rights of a belligerent, it does, upon general principles, concede to the insurrectionary organization a quasi independent character. And Wheaton says:

"A contest by force between independent sovereign States is called a public war. If it is duly declared in form, or duly commenced, it entitles both the belligerent parties to all the rights of war against each other." . . . . "Whatever is permitted by the laws of war to one of the belligerent parties is equally permitted to the other.” Wheaton's Elements of International Law. Part IV., chap. 1,

sec. 6.

If the United States should authorize letters of marque and reprisal against the insurgents, that would be a recognition of them as parties to a public war. If they should enter into a truce or armistice, which only suspends hostilities,

they would recognize them as a belligerent party capable of agreeing upon such a temporary or quasi peace; and could hardly after that claim a right to convict of treason for subsequent acts.

"If, however," says Halleck, "the conditions of the truce be broken by one belligerent, there is no doubt that the other may immediately resume hostilities without any declaration." Halleck, Chap. 27,

sec. 9.

This clearly recognizes the parties to a truce as upon equal standing, thus far.

But your common sense, as you exhibit it in your "Views," tells you, and you tell the community, that we may exercise all the rights of a belligerent, at the same time that, “just as fast as our armies advance, and just as fast as the slaves of rebel masters come within our lines, the process of actual emancipation is going on under the acts of Congress," (see 12th extract,) as if they were still in force against rebels.

Would it not be well if your common sense were a little more consistent with general principles, and with itself?

In my next, I will consider your position respecting the right of the President to "make war," and respecting the "conquest" of the seceding States.

CAMBRIDGE, Dec. 5, 1862.

Yours, &c.

SIR,

TO THE REV LEONARD BACON, D. D.

No. 3.

In my last letter I considered your proposition that the United States have, as against the rebels, all the rights of a belligerent, showing that such an assumption would concede to the rebels similar rights, as the other belligerent. If such rights exist, they date from the commencement of active hostilities, as there has been nothing since to change the character of the war in this respect. The proposition is, therefore, inconsistent with a right, in the United States, to

punish all acts of warfare by the rebels, as acts of treason— inconsistent, of course, with the confiscation act, which you regard as in full force; and inconsistent, moreover, with the introductory part of the proclamation itself, which declares "that hereafter, as heretofore, the war will be prosecuted for the object of practically restoring the Constitutional relation between the United States and the people thereof, in which States that violation is or may be disturbed or suspended."

I proceed to examine next your statement, that you "find that though Congress has the right to declare war, the President alone has the right to make war." See Letter I., 10th extract, This is, among other things, to show the right of the Presi dent to issue the proclamation. How it could avail to sustain the right claimed, if the fact were so, is certainly not apparent. Of that hereafter. The discovery is certainly of no small import. So far as I am aware, you are entitled to be chronicled not only as the first, but as the only person who has made this particular discovery, unless perhaps some patent lawyer may contest your right.

To a certain extent, doubtless, it is in accordance with the recent Republican dogma, that the President has a right to do whatever is required by the military necessity, and that he is the sole judge of what is required by the military necessity, thereby making the President, in time of war, a military despot. The differences however are so far material, that perhaps neither infringes on the other.

I fear that the discovery or invention, whichever it may be called, that the President alone has the right to make war, and whoever may be the first finder, will not prove a useful one. I deny entirely that you have found any such thing in the Constitution. If the fact were so, then all the interference of Congress in the making of war would be a usurpation of the Constitutional right of the President and would of course be unconstitutional. I have no doubt that very much of the interference of Congress in the making of the present war has been essentially mischievous, and has retarded, rather than promoted, its success; but the Constitutional right of Congress to do many things in the making of war has not heretofore, I think, been doubted.

I have searched in vain for a clause in the Constitution

which can be construed, either by "law logic" or by any common sense that I am acquainted with, as conferring upon the President the sole power of making war. You refer in this connection to but two provisions of the Constitution. I will quote the paragraph, which was marked for insertion among the extracts in my first letter, but omitted in an attempt at compression. It is this:

"I find that the inaugural oath of the President, as prescribed in that document, binds him to the duty, not merely of supporting, like all other officers of the Government, but of preserving, protecting and DEFENDING the Constitution, to the best of his ability. I find that the Constitution, in order that he may perform his oath, makes him "Commander-in-chief of the Army and Navy."-[And then you add]—“I find that though Congress has the right to declare war, the President alone has the right to make war."

In the absence of anything else, adduced for the purpose, it seems that the first two findings are the basis of the third. But the oath to preserve, protect and defend the Constitution, certainly does not give to the President the power, nor show that he alone has the power, to make war. The terms do not embrace or imply it. The President might defend the Constitution to the best of his ability, without any power to make war. He is to defend it within the scope and power of his office, and we look elsewhere to find the scope of his powers. This is the first time, so far as I now recollect, in which an official oath to discharge the duties of an office, (and the whole oath of the President is of that character,) has been supposed to contain a distinct and independent grant of power, not otherwise conferred. I am quite sure that it is the first instance in which the oath to support and defend the Constitution has been supposed to contain within it a grant of power to subvert the rights of the States, and thereby, practically to limit those amendments of the Constitution which declare, - that "the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people;" and that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The power of emancipation supposed to be conferred by this power to make war,