Constitutional emancipation is to be worked out? If this is the way in which the "conquest" is to be made, what will become of the great proclamation and the universal emancipation, and of your Constitutional law, as connected therewith?

TO THE REV. LEONARD BACON, D.D.

No. 5.

SIR, I proceed to the consideration of two of your propositions which have the semblance of argument, but which utterly fail to sustain your conclusion. They take the shape of inquiries, to wit:

"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 meantime 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?"

"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?" See Extracts 10 and 11 in Letter No. 1.

For the purpose of showing wherein, and how, the argument in these inquiries falls entirely short of the purpose for which you present them, it may be well, in the first place, to ascertain distinctly what is, or is to be, the scope, force, and effect of the "great proclamation."

Much of the difference of opinion, which exists in the community, respecting the power of the President to issue the proclamation, is, I think, occasioned by a difference of supposition respecting what it proposes, and is intended to accomplish.

Some persons seem to think that the Constitutional power is not to be disputed, because the President may threaten the rebels. It will do no harm. Perhaps they will be alarmed, submit, and choose representatives in Congress before the first of January.

My dog, if I had one, might bark at the moon. He would have a constitutional power so to do. But what mischief would be done to the moon; and what benefit would accrue to the dog! The proclamation is, of itself, no more effective for good than the dog's bark would be. It is doubtless a much more efficient agent for evil.

The President may notify Queen Victoria, that if she does not return Mason and Slidell within ninety days, he will proclaim in what part of her Indian dominions the sepoys shall be emancipated from the oppression to which they are now subjected. I doubt whether he would be liable to impeachment if he should do such a foolish thing. But would Her Majesty be very much alarmed, by the notification, except as it indicated hostility? And if he should designate the limits, at the end of the ninety days, would the sepoys be relieved from the oppression? The measure might serve to unite nearly all the people of England in a bitter hostility to us. And that is the legitimate effect of the proclamation, upon the people of the South. The rebels know that the proclamation is of no avail without a successful war on our part. It is the war that they fear, and not the proclamation. The newspaper paragraphs, stating that the proclamation causes great alarm among them, are baits to catch gulls, or, without a metaphor, lies to deceive fools.

Some persons seem to regard the proclamation as a measure of punishment;-as a confiscation of slaves for the crime of rebellion or treason. They say, may not the rebels be punished by taking away their slaves, as well as other property? Is property in slaves preeminently sacred?

Admit that it is not; that confiscation is a proper punishment for treason; and that confiscation may free slaves, as well as convert other property of the traitor to the use of the Government. But the President has no power to confiscate the property of any person for treason. That is the province of Congress, and the Judiciary; and Congress, on the 17th of July last, passed an act to punish treason, seize and confiscate the property of rebels, &c., which not only provides for the emancipation of his slaves, upon the conviction of the traitor, but enacts further, that all slaves of persons engaged in the rebellion, or who give aid and comfort thereto, escaping from such persons and taking refuge within the lines of the army, and all slaves captured from such persons, or deserted by them and coming under the control of the Government; and all slaves of such persons found or being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and forever free from their servitude. If there may be some doubts respecting the Constitutionality of all portions of this enactment, it is much more free from Constitutional difficulties than a proclamation, as a measure of confiscation. Moreover, the emancipation of the proclamation is, as your inquiries imply, to be of the slaves of the loyal, as well as the disloyal. It is not to be sustained, therefore, as an act of confiscation.

Others are of opinion that the President, as Commanderin-chief, may direct that wherever the army goes, and overcomes the power of the rebels, the slaves shall be free; and they construe the proclamation as meaning no more than that; because, so far as the power of the master is not overcome, it is clear that there can be no emancipation.

I have no doubt that where the army carries successful warfare, there martial law-the law of force- is, for the time being, the governing power for all the purposes of the war; and as the liberation of the slaves-so far as that liberation is then and there a practical subversion of the power of the master-may weaken the power of the rebellion, it may be regarded as one of the means of carrying on the war. The slave may be required to perform labor and service, in any of the warlike operations for the suppression of the rebel

lion. The power and control of the master over the slave may thus be broken, for the time being, and the relation of master and slave is thereby suspended. This is by the legitimate effect of martial law - the law of force - which supersedes the municipal law of the State. Now if the slave avails himself of this subversion of the power and control of the master of this severance for the time being of the relation of master and slave- and departs without the limits where slavery is admitted, he will secure the permanence of his freedom, because, as I maintain, he cannot afterwards be claimed and returned under the fugitive slave clause of the Constitution and the laws of Congress. He acquired liberty, practically, without becoming a fugitive. He is not a fugitive if he avails himself of that liberty to go where he pleases, and so he cannot be sent back as a fugitive on the suppression of the rebellion. So also if the Government, during the time when the law of force is the governing power, removes him from the limits where the municipal law requires his servitude.

Upon the same principle, I do not doubt that the President, as Commander-in-chief, or a commanding general in the field, may, in the lawful exercise of hostilities, for the purpose of weakening the enemy, invite the slaves to come within the lines of the army, and assure them of protection, which may be made effectual by their removal beyond the subsequent operation of the municipal law.

A commander may invite all persons within the hostile lines to come within his camp, and to bring with them whatever gives strength to the enemy. And in regard to all slaves who should comply with such a call, the relation of master and slave would be actually severed, when they come within the limits where the law of force, adverse to the servitude under such circumstances, is the governing power. Coming within the lines under such a lawful exercise of military power, they could not be deemed fugitives, within the meaning of the Constitution; but would stand in the same category with slaves, brought within its limits by the march of the army. There might be a question, in both cases, whether loyal masters were not entitled to indemnity. That need not be settled at this time.

But all this has no tendency to sustain the proclamation. Military occupation-martial law-the law of the force. exerted by the army-only suspends the municipal law for the time being. It does not subvert it permanently. Neither the commander of the army in the field, nor the President, can give to martial law any such extension, that it will subvert the municipal law, except so far as there has been, not merely a suspension, but an actual change in the existing state of things, by the operations of the war. It is not in the nature of martial law to provide rules, prospectively, for governing the rights and duties of persons after itself shall have ceased to exist. What it has changed, is, of course, subject to the change, as far as it goes. What it has not changed, it cannot regulate for the future after it ceases. The law of force operates so long as the actual military force sustains it, but no longer. This is readily illustrated. The ariny, in the course of its march, occupies the land of an individual, and the officers take possession of his house, and are not trespassers. They take his crops and consume them, and are not trespassers. No action will lie against them at the time, or afterwards. He may, or may not, have a claim upon the Government for indemnity. When they remove, he cannot, of course, regain his crops which have been consumed, but the commanding officer has acquired no title to his house or farm, nor any right to regulate his occupancy or power over that property, which thus remains, after the war is over. His right to occupy and use was suspended by the war, and by the law of the force which drove him out; but it was only suspended, and he enters and holds under his old title. So it is with the crops not consumed, and with his furniture. So it may be with his slaves, who have been liberated from his control for the time being, and have been under the control of the military power; if they remain and give the master an opportunity to assert his old title.

This is all the emancipation which can be had in the course of the war; and if I could read the proclamation as extending no farther than such emancipation, I should have no controversy with any one who supported it. The opportunity to secure freedom in this way was, I think, substan