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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:

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"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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Now, did Mr. Adams mean to assert, that upon the mere invasion of a country all the laws and municipal institutions of that country were swept away;- that, for example, upon the invasion of the United States, in the war of 1812, all the* laws and municipal institutions of the United States were swept away, and martial law substituted all over the country? Most assuredly, not! If he had, the assertion would have shown him to have been a fit subject for the occupancy of a madhouse. What he meant undoubtedly was, that so far as the march of the invading army extended, — so far as the law of force became the governing power, -the laws and the municipal institutions of the invaded country were swept away for the time being, the martial law of the invaders taking the place of them. Even this would not be true to the letter; for if the invaders did not see fit to apply their force to shut up the courts of justice, those courts might still sit under the municipal law; suits might be instituted, which did not involve any matter connected with the hostilities; and valid judgments be rendered under the municipal law. Probably this is not usually permitted, where there is actual occupation by a hostile military force.

If Mr. Adams's remark, in relation to laws and municipal institutions, had this limited significance, it would seem that his remark relating to emancipation, almost in juxtaposition with the other, must have a similar limitation; and thus limited I am not disposed to contest it, provided the commander of the invading force, having severed the relation of master and slave, carries the slave beyond the power of the master. Such was the nature of other cases, which have been cited to support the broad principle, but prove nothing more than this limited operation of martial law. In another part of the same speech he remarked: "I say that military authority takes, for the time, the place of all municipal institutions, slavery among the rest."

That the conquest of a country does not subvert its laws, or the rights of property, until the conquering State sees fit to change them, may be shown by abundant authorities. A single extract from Chancellor Kent's Commentaries, will suffice for the present purpose.

"It is a settled principle in the law and usage of nations that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property, not taken from them by the orders of the conqueror, remain undisturbed. The cession or conquest of a territory does not affect the rights of property. The laws, usages, and municipal regulations in force at the time of the conquest or cession, remain in force, until changed by the new sovereign. There is no doubt of the power of the sovereign to change the laws of a conquered or ceded country, unless restrained by the capitulation or treaty of cession. In the case of the Canal Appraisers vs. the People, in 17 Wendell's R. 587, Chancellor Walworth declared that, in the case of a country acquired by conquest, no formal act of legislation is necessary to change the law; the mere will of the conqueror is sufficient. This is the case where the conqueror is in possession of the legislative as well as the executive power; and until a nation or territory is wholly subdued, the conqueror is only entitled, by the usage of nations, to hold it as a temporary possession, by military occupation until the final issue of the conquest is settled by treaty, or by the competent Constitutional power. The principle of national law, as declared by the courts of the United States, is that conquest does not give the conqueror plenum dominium et utile." 1 Kent's Com. (6th ed.) 178, note b.

I have omitted the references to several books of authority cited by the Chancellor in the foregoing extract to sustain his positions.

This may serve for the present to show that even in the case of a foreign conquest, the President, if he were in the field as Commander-in-chief, could not by a military order emancipate the slaves, except through an actual severance of the control of the master connected with it. He would not be the "new sovereign" and has no power of legislation. What is thus true in the case of a conquest of foreign territory must be true, much more clearly, if possible, where the military occupation is of territory within the Union for the purpose of suppressing a rebellion.

I had intended to make some remarks upon your distinction between " emancipation" and "abolition," and that between the right of the President to emancipate, because it will be the "means of crushing the rebellion," and a want of right to emancipate because "slavery is wrong;" but this

discussion has already extended much beyond the limits which I anticipated when it commenced, and I am not disposed to add to it at the present time.

Trusting that in the next of your " Views from a Watchtower," you will not see that laywers and their logic are out of place in the discussion of questions of Constitutional law; and that your vision will be sufficiently clear to enable you to "avoid the conviction" that those who oppose the proclamation," intend nothing else than some concession to the rebels, which shall either divide the Union, or subvert the Constitution," and "are now willing to sacrifice the Union for the sake of saving slavery;"

I remain, Yours, &c.

CAMBRIDGE, Dec. 31, 1862.

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TO THE REV. LEONARD BACON, D. D.

No. 7.

SIR, I duly received your note in "The Congregationalist" of January 16th, acknowledging the receipt of six letters published over my name in "The Boston Post," and addressed personally to you; in which you say that you propose to study them with some care, and express a hope that in the next number of "The New Englander" you may be able to contribute somewhat to the elucidation of the matters which I have invited you to discuss with me.

I shall look with interest for the results of that study, and of your farther reflections upon the subject, more especially as I am told that " The New York Independent" has already informed the public, in anticipation of the forthcoming discussion in "The New Englander," that "Dr. Bacon hits hard and cuts deep."

In the mean time, permit me to commend to your particular attention some portions of my fifth letter, in which I stated the differing views which different persons took of the proclamation, and from which I make these extracts :

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