derived from the oath, is a power to change Constitutional rights, so that rights which confessedly remain to the States and to the people absolutely, in time of peace, shall be held by them at the pleasure of the President in time of war; because, forsooth, he is bound by oath to preserve, protect and defend the Constitution; of which these amendments are a part.

Undoubtedly an oath of office may be expressed in such terms, that the terms may serve to give a construction to other provisions of a constitution, or law, whichever may contain it. But that is not the case here. There is no other provision which the language of the oath either restricts or enlarges. It would be equally the duty of the President to preserve, protect and defend the Constitution if that clause of the oath had been omitted. Its only design and operation was, and is, to superadd the solemn sanction of an oath, to secure more effectually, if necessary, the performance of the duty which is imposed by the provisions vesting the executive power in the President, and constituting him Commander-in-chief of the Army and Navy.

But the provision constituting him Commander-in-chief contains no exclusive grant of power to make war. It is the duty of a Commander-in-chief to make war in conjunction with such other authorities as may participate in making war. It shows that the President has certain powers in relation to war, such as are usually possessed by a commander, and may rightfully belong to a Commander-in-chief in a Republican government, in which all grants of power are by and through the Constitution, which limits and controls power, as well as grants it. The duty of the President as the officer in whom the Executive power is vested, and who is at the same time Commander-in-chief, binds him to use the proper powers of an Executive Magistrate, and a Commander-in-chief, in preserving, protecting and defending the Constitution. The oath adds a solemn sanction to the duty. But it is no part of the duty of a Commander-in-chief of the United States to subvert State rights, or in time of war to change provisions of the Constitution, or to alter the State laws. He may suspend the operation of the latter to a certain extent, wherever he carries martial law. But he cannot

institute martial law beyond the limits where he can enforce it at the time, and where it may exist consistently with other provisions of the Constitution.

Furthermore in relation to your position that the President alone has the power to make war: The Constitution provides that Congress shall have power to provide for the common defence and general welfare of the United States. That includes the power to provide for the defence of the Constitution, and if it is necessary to defend it by war, then to make provisions for the defence in that mode. It is quite as much the duty of Congress to defend the Constitution, in the legislative department, as it is of the President to defend it in the executive department, and in his capacity as Commander-in-chief. Congress has also, by express grant, not only power to declare war, but power to grant letters of marque and reprisals; to make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government of the land and naval forces; and to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. It is surely not necessary for me to show that the exercise of these powers has quite as much to do with the making of war, as the marshalling of squadrons, or any other of what may be termed the executive operations in the field.

The Constitution vests in Congress all legislative powers therein granted. All the legislative powers exercised in making war (and without their exercise any war made by the President alone would be exceedingly short,) are powers of making war vested in Congress.

Your finding" that the President alone has power to make war" ignores all the powers of Congress, above specified, which relate to the making of war. Really, if you deal thus with the Constitution, you should furnish the community with an expurgated edition, with notes and comments according to the rules of that particular kind of common sense which excludes "law logic."

Another of your propositions is, that the policy you speak of being adopted, "the territory held by the rebels, must be recognized as hostile territory, to be conquered and re

annexed." "Henceforth the war is," (as you say) "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 laws of the Union in regions over which at present they have no more sway or force than they have in Patagonia."

In stating this proposition I have omitted some intervening words, which serve rather to obscure, than to make clear, the proposition itself. You have a way of intermixing matters which do not exist, or have no necessary connection with each other, as if they formed parts of a single connected proposition, thereby presenting the subject-matter with a false appearance. For instance, you say 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. And then comes the recognition of the hostile territory to be conquered and reannexed. See Extract No. 2. I suppose that this prefatory matter is a little piece of clerical irony, as I am not aware of any party which thinks that the irregularity is small, or that the correction should be gentle. Again, (see Extract No. 3) you speak of "the preposterous policy which regards the enslaved as property, and property in slaves as preeminently sacred." I know no party which holds property in slaves as preeminently sacred, nor any such policy; and this preeminent sacredness which you introduce certainly has no necessary connection with the recognition of slaves as property. Another instance, to which I have already referred, and which I present again in this connection, for the purpose of noting your mode of argument, is thus stated:"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. But though a hundred lawyers should attempt to convince me that the Government is restrained by the Constitution from defending its own existence in a civil war," &c., (see the 7th and 8th extracts) as if an argument against the right of the President was an argument of that character. It is not said that it is the lawyers who are in favor of gentle correction, and who hold slave property to be preeminently sacred, but it may be left as inference, perhaps,

that "all men who oppose the proclamation," maintain all of these inferential, interpolated, opinions. I pray you to consider whether this mode of reasoning is quite consistent with that kind "of common sense" which should characterize a preacher of the gospel, however it may be used by the profane sophists, who defend criminals in a police court, or argue patent cases before juries.

Having said this much, by way of showing that in stating your proposition respecting conquest, &c., I have left out some of the intervening matter, not only because it is not material to the proposition itself, but because it serves to put a false gloss upon it, I must reserve the inquiry upon what ground it is that we are to recognize the seceded States, as hostile territory, &c., for another letter.

CAMBRIDGE, Dec. 9, 1862.

Yours, &c.

TO THE REV. LEONARD BACON, D. D.

No. 4.

SIR,I proceed to the consideration of your proposition, "that the territory held by the rebels must be recognized as hostile territory to be conquered and reannexed;" or, as you state it in another paragraph, that "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 laws of the Union in regions over which, at present, they have no more sway or force than they have in Patagonia."

The territory occupied by the rebels comprises several States which were in league with each other, and with other States, under the Confederation, and the people of which participated in the formation of the Constitution—and some States which have been admitted into the Union since the Constitution was adopted.

Prior to the rebellion, the Constitution extended over all those States, binding them and others together in one government, for the purposes specified in that instrument. When and how has the territory comprised within them been "wrested from the people of the United States," so that it "must be recognized as hostile territory to be conquered and reannexed?"

It must be remembered that the territory, so far as it is comprised within the States existing at the time the Constitution was adopted, never belonged to the United States, nor have the United States ever had any right in or over it, except by the adoption of the Constitution, and through laws passed in consequence thereof. Until the adoption of the Constitution, the United States did not exist, but there was State sovereignty, limited to some extent by the articles of Confederation. The adoption of the Constitution did not confer upon the United States any territorial sovereignty, except for the purposes and in the manner set forth and provided for in that instrument, the State governments remaining as before. Of course there has not been there cannot have been any wresting of the territory from the people of the United States, except that the rightful power which the United States might and ought to exercise, under the Constitution, has been subverted, or, rather, suspended, for the time being, by force. And in that view, any reannexation - which, by the way, is a very inappropriate term — would be a restoration, so far as possible, of the state of things existing previous to the rebellion. But that would not be a "conquest"; and the use of the terms "conquest" and "reannexed" serve to show that you mean something more than the mere restoration of the authority of the United States. It is apparent, from the whole tenor of your article, that you desire, through conquest and reannexation, to accomplish something which could not be done by the mere suppression of the rebellion;- that is to say, the emancipation of the slaves.

Now I deny that any part of this territory has been wrested from the people of the United States., Waiving the fact that the United States never held full rights of sovereignty over very large portions of it, I maintain that there never has