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conquest of the territory included in the seceding States, and that we cannot, under the Constitution, make the war one of conquest, unless we admit that the rebellion has severed those States from the Union, so that they are to be regarded and treated as foreign States.

In addition to this, it has been proved that there is no "military necessity," and can be no such necessity, for an emancipation of slaves which shall take effect only after the war is over, and the rebellion subdued, that a great proportion of the emancipation proposed by the proclamation must be of that character, and that your arguments in favor of the proclamation, drawn from what may be done by military power in the prosecution of a war, wholly fail of showing any right on the part of the President to give freedom to the slaves by a mere proclamation for that purpose.

I propose now to show, that even if the United States had in this war all belligerent rights, if the President alone had the right to make war, - and if the war was a war for conquest, the President would have no right to emancipate all the slaves by proclamation, or in any other mode.

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Assuming the truth of all these propositions, the President would have no greater power of emancipation than he has if the war is regarded, as it ought to be, one prosecuted on the part of the United States to suppress the rebellion, and to reëstablish the authority of the United States, in active exercise, in those places where it is now practically inoperative by reason of the rebellion. On such assumption, the war must be carried on according to the general principles which regulate war between two independent nations, but with all Constitutional limitations to determine what power the President may exercise in such a war.

In order to determine whether the President may give freedom to the slaves, even in such a war, it may be well to examine a little more closely the nature and character of the act by which the emancipation is to be effected. It is called a "proclamation," but that designation does not serve to determine its character.

On the 22d of September the President proclaimed and declared that on the 1st of January, 1863, "all persons held as slaves in any State, or any designated part of a State, the

people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free, and the Executive Government of the United States, including the military and naval authority, will recognize and maintain the freedom of such persons." The forthcoming proclamation is to designate the States or parts of States.

The emancipation of all the slaves within the territory designated is to result from these acts, whether there has or has not been any practical severance of the relation of master and slave in the course of the war. The proclamation is of itself to be an act which gives freedom to all the slaves, whether of loyal or disloyal masters, not only during the time of the rebellion, but ever afterwards, so that it becomes legally operative, of itself, as a charter of freedom. It is intended to be an act of enfranchisement that the slaves may plead hereafter in the courts of justice, if necessary, to establish their right to freedom. The President is represented, in a recent paragraph, as placing it on that ground; and as saying that this may be done as a war measure, “but not as a measure issuing from the bosom of philanthropy." Such is substantially your doctrine. The enfranchisement is not to result from the operation of the war upon the slave, by an actual subversion of the power of the master, but from the proclamation of the President, subverting the power of the master. In other words, the power of the President, exerted through and by the proclamation, is, of itself, proprio vigore, to give freedom, without aid from anything else, — without any military operation connected with it, but by the mere force of the President's declaration that it shall be so.

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Upon what constitutional or legal principle is this to be sustained? What must be the legal character of this act, supposing it to possess any legality?

It is clear that it is not a lawful act of the President, as the chief executive magistrate of the United States. The Executive department possesses no such power to deprive a citizen of his property held under the laws of a State. The chief executive magistrate of a State has no such power. If Governor Andrew should issue his proclamation that the title of the fifty-four thousand persons who voted against him at the last election, to the property which they had pre

viously possessed, should, from the date, be annulled, and held of no further force or effect; and that any person who should take possession of any of the goods of the said "guerillas of Jefferson Davis," might plead his proclamation in defence of any suit which should be brought against him therefor; the courts of Massachusetts would have no difficulty in disposing of his proclamation. But he has just as much right to do this, as an act of Executive power, as President Lincoln has to do an act of a similar character. Such a change of title, or subversion of title, is not within the scope of Executive power.

If it were claimed that the proclamation was in the nature of a judgment or decree of emancipation, that would be in its nature an exercise of judicial power. But the President has no judicial power for such a purpose.

If it be said that it is a law of enfranchisement, which is doubtless its true character, if it has any character, it is equally clear that the President has no power to make a law. All the legislative powers, under the Constitution, are expressly vested in Congress.

So far as I am aware, it is not contended that the President, as President, can liberate the slaves.

But it is alleged that the President, as Commander-inchief, may, in time of war, liberate the slaves, although he may not do it as President, by virtue of his powers as an executive magistrate. That, I think, is substantially the position. To this I answer that the act of emancipation, so far as it is not accomplished by the war itself, but depends solely upon the proclamation, is, in its character, a law,that it is in its nature a legislative act, and that the objection already stated applies in full force. The President has, as Commander-in-chief, no legislative power. The emancipation in the West Indies, by Great Britain, was by Parliament, in the District of Columbia, by Congress, in the Northern States, by law also.

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Again: It is said, that although the President cannot emancipate by a law, he may do so in time of war by a military order; and it has been alleged that the proclamation, although not in form, is, in effect, a military order. But if the emancipation is not to be accomplished by the operations of

the war itself, there is nothing gained to the argument by a change of name, and calling the proclamation a military order. "A rose by any other name would smell as sweet;" and a skunk-cabbage, by any other name, would not smell any sweeter. Calling it "a military order," under the war power, does not even make it a measure of war, if it is to operate of itself,- of its own force, without military enforcement; as the proclamation must be designed to operate in all cases where the slaves remain under the control of their masters until the close of the war. In all such cases, as has been said, it effects nothing for the purposes of the war. So far, it is in its nature and effect legislation, just as much as if it was an act of Congress, passed in time of peace.

But let us test this in another mode. Suppose we treat it as a "military order," by the Commander-in-chief, and lay out of consideration your admission that the President's powers are strictly limited. Take the strongest case. May the Commander-in-chief, in a foreign war, waged for the purpose of conquest, by a military order which will take effect practically at the close of the war, liberate all the slaves of the enemy who have remained under the control and in the service of their masters up to that time?

According to the approved usages of civilized nations, it is not in the power of the Commander-in-chief of an invading army, by any military order, to change the laws of the country invaded, or the title to private property there, not even during the time of the war; except as the property comes under the actual control of the military force, in the manner stated in my last letter. Still more clear must it be, that he could not, by an order which had its operation after the war had ceased, change the existing rights of property under such laws. If the President, in a war with Spain, should take the field as generalissimo, invade Cuba, and order that all the property of the inhabitants should be confiscated, and become the property of the United States, and the slaves be emancipated; the cession of Cuba, at the close of the war, would not give effect to the order, either to pass the title of the property, or to emancipate the slaves of owners who remained in full possession and control up to the close of the war. It would not even pass the title of real

estate of which the military force had been in possession. Personal property seized and carried off by military force during the war might not be recovered back.

I am aware that the authority of Mr. John Quincy Adams is invoked to sustain the proposition, that where a country is invaded, "the commanders of both armies have power to emancipate all the slaves in the invaded territory;" and these words of his, if separated from the context, may at first appear to be broad enough to cover the proposition, that the mere order of the commander, without more, will operate as an effectual decree of emancipation. But that would be preposterous. If the British commander who captured Washington, in the war of 1812, had proclaimed the emancipation of all the slaves in the United States, do you suppose it could have been pleaded by the slaves as an effectual emancipation, or that any right of the masters would in any way have been affected by the "military order," standing alone? That it could not have been the opinion of Mr. Adams, that such order would have any legal operation beyond its actual execution by the military force by martial law seems to be evident from the context, which serves to show that he intended to say merely, that the commander, by his actual military operations, might emancipate the slaves. He was contending against an assumption that Congress had no authority to interfere with slavery in any way, and endeavoring to show that Congress might, in certain cases, interfere with it, both for and against. In the course of the discussion, speaking of the war power, he said:

"When your country is actually in war, whether it be a war of invasion or a war of insurrection, Congress has power to carry on the war, and must carry it on, according to the laws of war; and by the laws of war, an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. This power in Congress has, perhaps, never been called into exercise under the present Constitution of the United States. But when the laws of war are in force, what, I ask, is one of those laws? It is this that when a country is invaded, and two hostile armies are set in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory."

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