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 Copy 1 
 
 REPLY 
 
 TO 
 
 PROFESSOR PARKER'S LETTERS, 
 
 IN THE BOSTON POST, 
 
 TO 
 
 REV. LEONARD BACON, D. D. 
 
 BY EEV. LEONAKD BACON, D. D. 
 
 From the " New Englander" for April, 1863. 
 
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 REPLY TO PROFESSOR PARKER, 
 
 BY 
 
 KEV. LEONARD BACON, D. D., 
 
 NEW HAVEN, CONN. 
 
 [From the " New Englander" for .April, 1863.1 
 
 - 
 
• 3 
 
 ft I*- 
 
1863.] Reply to Professor Parker. 191 
 
 Article III.— REPLY TO PROFESSOR PARKER. 
 
 Boston Post, Nov. 29, Dec. 8, 12, 20, 27, 1S62— Jan. 3, and 
 Feb. 18, 1863. [Letters to the Rev. Leonard Bacon, D. D., 
 New Haven, Conn.] 
 
 To the Hon. Joel Parker, LL. D., 
 
 Royal Professor of Law in Harvard College, Cambridge, Mass. 
 
 Sir, — If the seven letters which you have addressed to me in 
 the columns of a Boston newspaper, had been digested into a 
 pamphlet addressed directly to the public, I might have criti- 
 cized it in the humble capacity of a reviewer without regard- 
 ing the debate as in any sense a personal one between you and 
 me ; or I might have been silent without seeming to confess 
 that yonr strictures on a newspaper article from my pen are 
 unanswerable, or to deem them unworthy of notice. But your 
 letters, as they lie before me, are in the nature of a challenge 
 to a personal debate. Either I must reply to them in my own 
 name, or I must be entirely "silent ; and if I am silent after 
 such a challenge, that will of course be construed as meaning 
 either that I have no respectful opinion of your letters, or that 
 I dare not attempt a reply. The conductors of the. New 
 Englander have therefore conceded to me the privilege of 
 answering your letters by a review in the form of a letter 
 to their author. 
 
 When I speak of a personal debate, I do not use that word 
 " personal " as implying any departure from the rules of con- 
 troversial courtesy. I do not complain of your letters in that 
 respect ; nor do I intend that you shall have any reason to 
 complain of my answer. Yet I may be allowed to say, at the 
 outset, that you are, and I am not, a professional lawyer ; that 
 having held a high judicial office, and being now a Pro- 
 fessor in the Law School of Harvard College, you have attain- 
 ed an enviable eminence in your profession; and that there- 
 fore your opinions on the main question which you have chal- 
 
192 Reply to Professor Parker. [April, 
 
 lenged me to debate with you, may be expected to have with 
 at least a large part of the public, an authority which mine 
 cannot have. It gives me pleasure to say farther, that unless 
 I am misinformed, you have done yourself honor, both as a 
 lawyer and as a citizen, by repudiating the gross iniquity and 
 chicanery of the Dred Scott decision, and all the policy of 
 President Buchanan's administration in regard to slavery; 
 that you have been uncompromisingly opposed to the exten- 
 sion of slavery and to its existence in any territory of the 
 Union ; and that your opposition to President Lincoln's ad- 
 ministration began in an unfortunate attempt so lately as last 
 autumn to organize a party in Massachusetts, which should 
 at once sustain the President and defeat the reelection of Sena- 
 tor Sumner. There are disloyal men in the loyal states — men 
 whose sympathies are with the rebellion more than with the 
 government — men who hold that the moral and political 
 opposition to slavery which characterizes the free-labor states 
 is opposition to the Constitution and the Union, and that there- 
 fore the rebellion is justifiable, and the war on our part a 
 crime — men who seem to have hardly any other conception of 
 the Constitution than that it was instituted for the purpose of 
 guaranteeing and nationalizing the institution of African 
 slavery. Having no respect for these men, or for any of them, 
 high or low in position, I am happy to be assured that you are 
 not one of them. 
 
 Without farther preface, I proceed to the questions which 
 you have invited me to discuss with you. 
 
 The first of these questions, you will allow me to say, re- 
 quires a more accurate statement than you have given. Your 
 statement of the question is such — or rather, your various 
 statements are so discordant — that I am at a loss to know 
 whether there is really any disagreement between us about it, 
 or what the proposition is which one of us maintains and the 
 other denies. You begin with the announcement that you 
 have undertaken to perform " a duty which some one owes to 
 the profession of the law and to the community generally ;" 
 and you describe the duty in these words: — 
 
1863.] Reply to Professor Parker. 193 
 
 " It is the duty of vindicating the right of the gentlemen of the Bar to form 
 their opinions upon legal subjects, and especially upon the construction of the 
 Constitution of the United States, and to express those opinions in any manner 
 consistent with due courtesy to others, -without being subjected to censure, sneers, 
 abuse, and vituperation, by a class of clergymen who assume to know more of 
 constitutional law than the tribunals and officers created and constituted for the 
 purpose of discussing and determining legal questions." 
 
 Is this your statement of the point on which you expect me 
 to join issue with you ? If so, there is no dispute between us. 
 The right which you have undertaken to assert for " the gen 
 tlemen of the Bar " is cheerfully conceded ; and if the right 
 needs to be vindicated, I am as ready as you are to vindicate 
 it against all comers. As for the " class of clergymen who 
 assume to know more of constitutional law than the tribunals 
 and officers created and constituted for the purpose of discuss- 
 ing and determining legal questions," I am not of them, nor 
 will I undertake to defend them. 
 
 After expatiating a little on this statement, you put the ques- 
 tion in a somewhat different way : — " If the clergy really have 
 the best set of rules by which to determine our constitutional 
 rights and duties." Allow me to say that on this question I 
 have no dispute with you. I have never pretended that cler- 
 gymen, whose professional business is to expound the docu- 
 ments of our religion, have any better rules, or any other rules, 
 for the interpretation of documents, than the rules which are 
 prescribed to your profession for the interpretation of written 
 laws and constitutions. "What other clergymen may have 
 said or implied, is no concern of mine, inasmuch as I have 
 never made myself responsible for them. Should you be able 
 to discover a clergyman who says that the " clergy" have other 
 and better rules of interpretation than those which are recog- 
 nized in your profession, I shall accept the fact as proof of 
 what needs no proof, namely, that every profession has its 
 blunderers. 
 
 Looking a little further, I find still another statement of the 
 question. After admitting "that among the lawyers them- 
 selves there is a difference of opinion upon various questions of 
 constitutional law," you say, — 
 
 " But that is not at all material to the present inquiry, which has uo reference 
 
191 Reply to Professor Parker. [April, 
 
 to the differences of construction by different lawyers, but is whether clergymen 
 are entitled to pass final judgment, and overrule any and all lawyers with whom 
 they differ on such subjects." 
 
 Do you really think, my dear Sir, that this is the question 
 between you and me ? When you made that statement of the 
 question, did you mean to pretend that, either explicitly or by 
 any implication, I have claimed in behalf of clergymen the 
 right "to pass final judgment" on questions of constitutional 
 law? But what else could you mean, if you considered at all 
 the force of the words you were writing ? Surely you must 
 have had a very contemptuous opinion of my understanding, 
 if you thought that, by any artifice, I could be induced to dis- 
 cuss such a question with you or with anybody else. 
 
 The occasion on which you have challenged me to this de- 
 bate, was an article which was published in the Congrega- 
 tionalist of October 31st, and which the editor of that journal 
 took the liberty of announcing as mine. In that article not 
 one word was said concerning the rights or prerogatives of 
 clergymen — not one word having the remotest allusion to the 
 clerical profession. I wrote not as a clergyman but anony- 
 mously, and the mention of my name by the editor was neith- 
 er intended by me nor expected. How is it, then, that you 
 undertake to raise upon that article an issue between the 
 clerical profession and the legal? I respectfully deny your 
 right to demand that I shall defend any proposition for which 
 I have not made myself directly or indirectly responsible, or 
 shall discuss with you in this public manner any question not 
 germane to the matter of that article. 
 
 For the sake of showing more distinctly how wide of the 
 mark your aim is, let me ask you to read again, and to read 
 more calmly and accurately than you seem to have done, all 
 that portion of my newspaper article which can be regarded as 
 having any relation to this first question, whatever it may be. 
 The President's " great proclamation " of September 22d, was 
 the subject on which I ventured to offer some observations 
 from my own point of view. After showing first that the 
 President had not been coerced into that great measure, against 
 his own judgment, by the importunity of self-constituted 
 
1863.] Reply to Professor Parker. 195 
 
 advisers ; secondly, that the necessity for it had become, in my 
 view, obvious to all who care more for the Constitution and 
 the Union than for slavery; and, thirdly, that the proclama- 
 tion marks a definite stage in the progress of the war, I 
 touched another topic in these words : — 
 
 " Concerning the constitutional power of the President to issue such a procla- 
 mation, I have no shadow of a doubt. 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 in this respect. But though a hundred lawyers should un- 
 dertake to convince me that the government is restrained by the Constitution 
 from defending its own existence in a civil war, or that there is any one of the 
 rights of a belligerent which it may not exercise in the territory of a state which 
 has rejected the Constitution, and made war upon the Union, they can never im- 
 pose that absurdity upon me, nor upon any man who is not willing to abnegate 
 his own common sense in favor of somebody else's professional sense. I have a 
 great respect for lawyers in their place, but I must be permitted to remember 
 that lawyership is not the same thing with statesmanship ; and to insist that the 
 Constitution of the United States, like the Bible, is to be interpreted by the com- 
 mon sense of the people. I find that the inaugural oath of the President, as pre- 
 scribed in that document, binds him to the duty, not merely of supporting, like 
 all other officers of 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." I find that though Congress has the right to declare war, the President 
 alone has the right to make war. To my common sense, the right and the duty 
 to make war against the enemies of the United States, be they foreigners or 
 rebels, involves, or rather is the right and the duty of conquering and crushing 
 them by every legitimate method of war. Has the President a right by the Con- 
 stitution, 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 regi- 
 ments of men in battle, when these measures are necessary to a speedy and thor- 
 ough 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 reestab- 
 lish 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 re- 
 cognized and protected as a freeman ? Shame on the law-logic which undertakes 
 to mystify our common sense! Admit that slaves are property, (though the Con- 
 stitution does not know them in any other character than that of ' persons '), 
 what then? Is there any preeminent sacredness in that particular kind of 
 property ? 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 
 
196 Reply to Professor Parker. [April, 
 
 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? 
 And if the conversion of all that property from private ownership to the use and 
 service of the United States, by a proclamation of freedom to the slaves, is neces- 
 sary, as a means of crushing the enemy, then that is just the thing which he must 
 do, or violate his oath to ' preserve, protect, and defend the Constitution of the 
 United States.'" 
 
 What then is my offense? It is not that I have denied " the 
 right of the gentlemen of the Bar to form their opinions upon 
 legal subjects, and especially upon the Constitution of the 
 United States, and to express their opinion in any manner consis- 
 tent with clue courtesy to others." It is not that in behalf of 
 the clergy, or as a clergyman, I have pretended to have a bet- 
 ter "set of rules by which to determine our constitutional 
 rights and duties " than lawyers have. It is not that I have 
 claimed for the clergy the prerogative of " passing final judg- 
 ment " on questions of constitutional interpretation. Not I, 
 but you, have brought into this discussion the suggestion that 
 I am a clergyman. Surely you need not be told that in rela- 
 tion to any question of jurisprudence to be decided by a court, 
 you are the professional clericus, and I am simply a layman. 
 All my offense is, that being in the language of your profession 
 a layman, I have claimed for myself, in common with all citi- 
 zens, the right of private judgment concerning the meaning of 
 the Constitution, and that, in exercising my right of private 
 judgment, I have dared to reject the opinion, not of all law- 
 yers, but of "some lawyers, 1 ' concerning the powers which the 
 Constitution permits the President to wield against the ene- 
 mies of the United States. The study and practice of your 
 profession tends, or should tend, to exactness in the statement 
 of a disputed proposition or question. If a student in your 
 office, being entrusted with the task of drawing a declaration 
 for the plaintiff or a plea for the defendant in a civil action, 
 should miss the mark as widely as you have done in your at- 
 tempt to raise an issue between yourself and me, about the 
 mutual relations of your profession and mine, I think he would 
 receive a severe rebuke. 
 
 Should I attempt to state the case for you, when you have 
 so greatly failed in stating it for yourself, I might expose my- 
 
1863.] ' ' Reply to Professor Parker. 197 
 
 self to the charge of presumption. Without undertaking to 
 do in form what I think you ought to have done, I will ven- 
 ture to make a suggestion or two leading in that direction. 
 Evidently you were displeased that I, not being a lawyer, and 
 being a clergyman, have professed to think for myself on a 
 certain question of constitutional interpretation, and have pub- 
 lished an opinion confessedly differing from that of " some 
 lawyers," among whom (though I had no thought of you, and 
 almost no knowledge of you, at the time) you happen to be 
 included. Allow me to say that you might have saved your- 
 self some trouble if you had more carefully considered the 
 ground of your displeasure before you began to write. Aside 
 from the alleged erroneousness of my opinion, and of the con- 
 siderations which I offered in support of it ; what is the prin- 
 ciple which I violated, and which you are called to vindicate ? 
 Is it that your profession has exclusive rights which I have in- 
 vaded by thinking for myself, and saying what I think ? Or 
 is it that my profession divests me of rights which are common 
 to all other citizens ? Let me suggest, respectfully, that in tak- 
 ing occasion from the paragraph above cited, to raise an issue 
 between " the gentlemen of the Bar " and " the clergy," you 
 ought to have taken your position frankly upon one or the 
 other of these two principles, or upon both. Do you hold that 
 when all citizens are en quiring what the President may do, 
 and what he may not do to save the Union and the nation 
 from being destroyed by this rebellion, no man who is not a 
 lawyer has any right to differ in opinion from any man who is 
 a lawyer % Or, do you hold that though other citizens not of 
 your profession have a right of private judgment on such 
 questions, the fact of my being a clergyman divests me of that 
 right ? 
 
 The paragraph, which I have quoted, is all that I said about 
 the constitutional right of the President to issue his great proc- 
 lamation. It is the only paragraph in which I made any al- 
 lusion to lawyers ; for the other aspects and bearings of the 
 proclamation involve no legal question. The question, for ex- 
 ample, whether the President from the beginning of the war, 
 has always intended to adopt this extreme measure if he should 
 
198 Reply to Professor Parker. [April, 
 
 find it impossible otherwise to suppress the rebellion, is no 
 more a question of jurisprudence than it is a question of med- 
 icine or theology. The question whether the President was 
 right or wrong in thinking that the time had come for this 
 extreme measure, and that the attempt to restore the Constitu- 
 tion and the Union without recognizing the manhood of the 
 enslaved population held in subjection by the enemies of the 
 United States had been kept up till its futility was sufficiently 
 demonstrated, is not a question on which the opinion of a law- 
 yer is to be taken as the opinion of an expert. JSTor is the 
 question whether the proclamation marks a definite stage of 
 progress in the prosecution of the war, (if there be any doubt 
 on the point), a law question. You seem to have an inkling of 
 a distinction between the question whether the proclamation is 
 expedient and necessary as a measure of hostility against the 
 belligerent enemies of the United States, and the question 
 whether (its expediency and necessity being admitted) it tran- 
 scends the constitutional powers of the President, and violates 
 his inaugural oath ; and yet you apply, as a personal reproach 
 to yourself, not only what I said about " some lawyers" who 
 hold that the President has no power to proclaim the emancipa- 
 tion of persons held in slavery by the belligerent enemies of 
 the United States, but also what I said about a certain class of 
 politicians and demagogues, who pretend that peace can be ob- 
 tained, and the Union restored by our continuing to make war 
 against the rebels with only one hand, and at the same time 
 helping them with the other hand in their unceasing war with 
 their millions of slaves. A few words of explanation on this 
 point are due to your feelings. 
 
 I offer then, for your relief, this explanation. 
 
 First. In all that I wrote, I had no thought of you either 
 as a politician or as a lawyer. Much as it may be to my disad- 
 vantage, I must confess that I had no knowledge of your an- 
 tipathies and sympathies, or your views concerning the procla- 
 mation ; and that if I had been asked, Who is the colleague of 
 Prof. Parsons in the Law School at Cambridge, my memory 
 might not have enabled me to answer. Secondly. When you 
 say that I brand " all lawyers, and all others who do not concur 
 
1863.] Reply to Professor Parker. 199 
 
 with [me] in having no doubt concerning the eight to issue 
 the proclamation," and that I charge them " with ' disloyalty,' 
 1 debasing homage to slavery,' and with an intent ' to divide 
 the Union or subvert the Constitution,'" you are entirely mis- 
 taken. Thirdly. My opinion of the political leaders and par- 
 tisans whom I had in view, and whom I denounced as "in fact 
 disloyal to the Constitution," remains unchanged. A moment's 
 thought will tell you who they are. You know who the men 
 are "who have so long paid a debasing homage to slavery for 
 the sake of ' saving the Union' that they are now willing to 
 sacrifice the Union for the sake of saving slavery." They are 
 the men who at this moment are talking in New York and 
 New Jersey, in Illinois and Indiana, in Pennsylvania and Ken- 
 tucky, about a reconstruction of the Union with New England 
 left out. They are the men who at this moment are plotting 
 and moving for a compromise with the perjured and bloody 
 traitors that rule the rebellion. It was to that sort of men 
 that I had reference when I expressed my conviction that they 
 "expect nothing else and intend nothing else than some con- 
 cession to the rebels, which shall either divide the Union or 
 subvert the Constitution." I may have occasion to say more 
 about them in the progress of this letter. At present it is 
 enough to admit, frankly, that if there are men endowed with 
 an ordinary share of common sense, who deny the necessity of 
 the military policy inaugurated by the proclamation, and "talk 
 about bringing the war to an end in some other way," ^ and 
 who at the same time do not expect either a recognized division 
 of the Union or the restoration of it by the concession of new 
 guarantees to slavery against freedom,— I was mistaken. 
 ' You seem to be sensitive about my saying that "I have a 
 great respect for lawyers in their place" but must neverthe- 
 less "be permitted to remember that lawyership is not the 
 same thing with statesmanship, and to insist that the Constitu- 
 tion of the United States, like the Bible, is to be interpreted 
 by the common sense of the people." "What is the place of a 
 lawyer ? He may be a judge, and then his place is on the 
 bench, applying the law to the individual cases, civil and crim- 
 inal, which come into his court for trial and decision. He may 
 
200 Reply to Professor Parker. [April, 
 
 be a professor of law, and then his place is in the chair of in- 
 struction, giving lectures, hearing recitations, initiating his pu- 
 pils into the science of law, and training them for the profes- 
 sion. If he is neither judge nor professor, his place is in his 
 office, giving advice to clients and drawing law papers, or at 
 the bar conducting and arguing the causes which are entrusted 
 to him. That is what I mean when I say that I have a great 
 respect for lawyers in their place. I honor the profession. I 
 have no sympathy with any vulgar prejudice against it. I re- 
 cognize it as indispensable to the administration of justice in 
 society, and inseparable from the working of a government in 
 which the rights of property and person are protected by law. 
 I honor the illustrious names of the great lawyers who have 
 adorned the profession by their abilities and their virtues. At 
 the same time my personal acquaintance with lawyers, eminent 
 on the bench or at the bar, assures me that to an ingenuous 
 mind such studies and pursuits as theirs are an invaluable dis- 
 cipline, morally as well as intellectually. So much for the re- 
 spect that is due to lawyers in their place. 
 
 A lawyer, then, is in his place when he is attending to his 
 professional business in the courts or in his office ; just as a 
 clerygymen or a physician is in his place when performing the 
 duties of his profession. But when a lawyer meddles with 
 public affairs, with questions of political economy or of national 
 policy — that is, with questions of statesmanship, he is not less 
 out of his place as a lawyer, than a physician who meddles 
 with the same questions is out of his place as a physician. 
 Statesmanship, whether as a science or as an art, instead of 
 being exclusively within the domain of your profession, is 
 wholly outside of it — just as it is wholly outside of the medical 
 profession. Of course, I do not mean that when a man be- 
 comes a lawyer, he loses his right to think and to say what he 
 thinks on questions of public interest. "What I mean is, that 
 his right to think and speak on public affairs belongs to him not 
 as a lawyer but as a citizen ; and that, therefore, the physician, 
 the civil engineer, the schoolmaster, or college professor, the mer- 
 chant, the manufacturer, the farmer, and even the clergyman, 
 being citizens as well as he, have precisely the same right. 
 
1863.] Reply to Professor Parker. 201 
 
 Lawyers are an intelligent class ; their professional knowledge, 
 and the discipline of their professional studies and pursuits, 
 qualify them to bear an important part in the discussion of 
 public questions; but other men are also intelligent, and may 
 contribute something, each from his own stand-point, to a wise 
 and safe decision of questions in which all are interested. Even 
 if I should concede that in this democratic country lawyers as 
 a class are more likely than any other class to have the special 
 knowledge and training which qualify a man for statesman- 
 ship, I cannot forget that some disadvantages, as well as many 
 advantages in respect to the higher walks of political science, 
 are incident to that profession. Your profession, as well as 
 mine, has its infirmities, its technical ways of thinking, its nar- 
 row traditions, its superstitious deference to formulas ; and 
 these must be thrown off before the mere lawyer can become 
 a true statesman. You have not forgotten what Burke said 
 of Grenville : 
 
 " He was bred in a profession. He was bred to the law, which is, in my opin- 
 ion one of the first and noblest of human sciences, a science which does more to 
 quicken and invigorate the understanding, than all the other kinds of learning 
 put together, but it is not apt, except in persons very happily born, to open and 
 liberalize the mind exactly in the same proportion "* 
 
 Nor can you have failed to note what he said of lawyers on 
 another occasion : 
 
 " Lawyers I know, cannot make the distinction for which I contend, because 
 they have their strict rule to go by. But legislators ought to do what lawyers 
 cannot for they have no other rules to bind them but the great principles of 
 reason and equity and the general sense of mankind. These they are bound to 
 obey and follow; and rather to enlarge and enlighten law by the liberality of 
 legislative reason, than to fetter and bind their higher capacity by the narrow 
 constructions of subordinate artificial jastice."f 
 
 So much for the difference between lawyership and statesman- 
 ship. 
 
 You admit " that among the lawyers themselves there is a 
 difference of opinion upon various questions of constitutional 
 law." Indeed the fact was too notorious to be overlooked, 
 that, on this very question concerning the constitutional power 
 
 * Burke. Works, I, 451. Boston: 1839. \ Ibid. II, 95. 
 
202 Reply to Professor Parker. [April, 
 
 of the President, you are at variance with lawyers whose emi- 
 nence in the profession is equal to yours. Why, then, have 
 not I the same right to dissent from you that you have to dis- 
 sent from President Lincoln, who, as you know, is an eminent 
 lawyer, and from Attorney-General Bates, who is, professional- 
 ly, more eminent still, and from the multitude of eminent law- 
 yers in Congress and in all the loyal States, who are known to 
 believe that the great measure announced in the Proclamation 
 is legitimate in the present condition of the country ? You 
 make no reply, that I have heard of, to the exhaustive argu- 
 ment of Mr. "Whiting.* Why not ? Why pour out your seven 
 vials of reply upon so slight a thing as a newspaper article from 
 a Connecticut clergyman ? You forego 
 
 " The joy which warriors feel 
 la foemen worthy of their steel," 
 
 that you may stoop to an argument with me. Why ? I can 
 see no other reason than that you deem it quite tolerable for 
 lawyers to differ among themselves on the meaning of the Con- 
 stitution, and quite intolerable for a man who is not a lawyer, 
 or at least for a clergyman, to differ in opinion on the same 
 subject from any man who is a lawyer. 
 
 What, then, am I to do? As a citizen and elector I have 
 responsibilities of which I cannot divest myself. I share in the 
 sovereignty not only of my own state but of the United States. 
 I have taken an oath of fidelity to the Constitution. As an 
 elector I must vote to sustain or condemn the administration 
 in its conduct of the war. But if there is no right of private 
 judgment on the meaning of the Constitution — if I, being not 
 a lawyer but a clergyman, have no right to differ in opinion 
 from any man who is a lawyer — I am in a predicament in which 
 God, I am sure, never intended to put any responsible creature. 
 Under the obligation of an oath, as sacred as that of a juror, I 
 must either sustain the administration or condemn it on this 
 very issue of its conformity to the Constitution ; and yet, inas- 
 
 * The War Powers of the President, and the Legislative Powers of Congress in 
 relation to Rebellion, Treason, ani Slavery. By William Whiting. Boston : 
 John L. Shorey. 
 
1863.] Reply to Professor Parker. 203 
 
 much as I am not a lawyer but a clergymen, I must not differ 
 in opinion, from any man who is a lawyer. I cannot adopt 
 your opinion, for in that case I shall diifer from Professor Par- 
 sons, your learned colleague, and from Judge Bates, the Attor- 
 ney-General, and from President Lincoln, and from all the law- 
 yers in the cabinet, and from many sagacious, learned, and up- 
 right lawyers with whom I am personally acquainted. I can- 
 not adopt their opinion, for in that case I shall differ from you, 
 and I know not how many more, whose professional learning 
 and integrity I would not disparage. Shall I retain a lawyer 
 as my constitutional adviser, and " go it blind" under his di- 
 rection? But even in that case must I not first exercise my 
 private judgment, and then choose for the director of my con- 
 science some lawyer whose construction of the Constitution I 
 know to be sound ? 
 
 Such are some of the absurdities into which we are led by 
 the principle that none but lawyers may interpret the Consti- 
 tution for themselves. In opposition to that principle I assert 
 the sacred and inalienable right of private judgment. The de- 
 nial of that right in respect to the interpretation of the Bible 
 establishes the priesthood as a spiritual aristocracy, and tends 
 to the speedy and entire corruption of Christianity. Just so 
 the denial of that right in respect to the interpretation of the 
 Constitution sets up a political hierarchy of lawyers, and tends 
 to subvert the Constitution itself. Let it be universally con- 
 ceded that the people, when called to pronounce their verdict 
 on the measures of the government, must not judge for them- 
 selves what their rights are, and their duties, but must exercise 
 their political power under the dictation of " the gentlemen of 
 the Bar " — and instead of the Constitution we have only the 
 ever-accumulating tradition of hierarchical or professional in- 
 terpretations. The men who in our Saviour's time were wont 
 to say, "This people, who knoweth not the law, are cursed," 
 denjdng to the laity the power of judging for themselves, were 
 none other than the men who had made the word of God of 
 none effect through their tradition. When the law of Moses 
 had been given into the hands of a professional class to be in- 
 terpreted by them exclusively and authoritatively, the result 
 
204: Reply to Professor Parker. [April, 
 
 was that not the sacred Law itself, but the Talmud, with its 
 Mishna and Gemara, became the rule from which there was no 
 appeal. As firmly as I believe that the chief security, under 
 God, for the continued life of the Christian religion revealed 
 and recorded in the Bible, is in the people's right of private 
 judgment, ever subjecting the authority of dogmas and tradi- 
 tions to the higher and primitive authority of the scriptures ; 
 so firmly do I believe that the chief security, under God, for 
 the system of popular self-government established by the Con- 
 stitution is in the people's right of private judgment, bringing 
 Dred Scott decisions, and everything else of that sort, to the 
 review of that higher tribunal where the Constitution, in the 
 last appeal, is interpreted by the people's common sense and 
 enforced by the people's power of choosing their own public 
 servants. You are at liberty to instruct the people if you can, 
 and to enlighten and guide their common sense ; but your lib- 
 erty in this respect is also mine. 
 
 Intelligent theologians, of all Protestant names, have learned 
 long ago, not to be offended by any honest attempt of laymen 
 to interpret for themselves the documents of our religion. We, 
 of the clerical profession, have learned that religious and theo- 
 logical knowledge (the specialty of our profession) may be 
 sometimes advanced by the studies and publications of men who 
 have never been taught by theological professors, and on whom 
 no ordaining hands were ever laid. We have learned to be 
 thankful rather than angry, when intelligent and earnest men 
 whose training and habits have not qualified them for the pul- 
 pit, and whose discourses, if they should attempt to preach, 
 would have no special charm or power for popular assemblies, 
 interest themselves in the discussion of religious and theologi- 
 cal questions. Few professional theologians, within the last 
 half century, have done more for the science of religion, by 
 their writings, than has been done by those two great lay teach- 
 ers, Coleridge and Isaac Taylor. And is it not possible that 
 an intelligent and honest man who is not a professional 
 lawyer may sometimes have sense enough to be in the right 
 on a question of constitutional interpretation, or on some 
 great principle of jurisprudence, on which some lawyers, by 
 
1863.] Reply to Professor Parker. 205 
 
 reason of their bondage to precedents, and their technical wa} r s 
 of thinking, have erred ? John Hampden was not a lawyer ; 
 but he knew what English law was, on one point, better than 
 a majority of the twelve judges of England. Granville Sharp 
 was not a professional lawyer, but he had the sagacity which 
 enabled him to deduce from the elements of English jurispru- 
 dence the great principle that slavery cannot exist in Eng- 
 land — a principle which the lawyers themselves had not dis- 
 covered till he taught them. 
 
 "While I maintain that the Constitution of the United States 
 is a document not for lawyers only but for the people, and is 
 therefore to be interpreted, ultimately, by the people's common 
 sense, I freely admit that in some passages of that great instru- 
 ment there are words and phrases which belong rather to the 
 technical dialect of English jurisprudence than to our common 
 English tongue, and which require, therefore, some technical 
 knowledge in the interpretation. For example, a plain man 
 may be dependent on a law dictionary, or some such authority, 
 to tell him what is meant by " the writ of habeas corpus," and 
 what is meant by " the privilege " of that writ ; but, having 
 obtained a sufficient answer to those two questions, he can see 
 for himself the meaning of the constitutional provision that 
 " the privilege of the writ of habeas corpus shall not be sus- 
 pended, unless wdien in cases of rebellion or invasion the public 
 safety may require it." So he may not know what a " bill of 
 attainder " is, till he has obtained the information from some- 
 body versed in legal technicalities ;, and possibly he may not 
 know what an " ex post facto law " is, till he has inquired of 
 the schoolmaster or of some intelligent neighbor ; but, having 
 learned the meaning of those phrases, he needs no lawyer to, 
 tell him what the Constitution means by saying that " no bill 
 of attainder or ex post facto law shall be passed," There is. 
 one sentence which preeminently requires a knowledge of 
 phrases peculiar to the science of law. " The Congress shall 
 have power to declare the punishment of treason ; but no at- 
 tainder of treason shall work corruption of blood, or forfeiture,, 
 except during the life of the person attainted." What is an 
 "attainder of treason?" What is "corruption of blood?" 
 
 vol. xxii. 14 
 
206 Reply to Professor Parker. [April, 
 
 What is " forfeiture," when used in such a connection ? What 
 is the meaning of the verb " attaint "? Both houses of Con- 
 gress are full of lawyers, but, strangely enough, on this one 
 sentence which it is their business to interpret, the lawyers 
 were at fault. I cannot but suspect that the ablest men of 
 your profession are among those who do not go to Congress. 
 Had you been there in 1862, you surely could have told the 
 conscript fathers that the limitation on the power of Congress 
 to declare the punishment of treason had no other purpose than 
 to exclude from our national legislation that principle of the 
 English common law which punishes the convicted and sen- 
 tenced traitor by making his children and all his posterity par- 
 takers in his punishment, and which not only punishes him 
 personally by the forfeiture of his life and of all his actual pos- 
 sessions, but punishes them also by the forfeiture of whatever 
 might afterwards have descended to them as his heirs. The 
 statesmen who framed the Constitution understood right well 
 the penalties of treason under the English law, for the time had 
 been when they were deeply interested in that subject. For 
 reasons which they had learned to appreciate, they deter- 
 mined that, under the Constitution which they were framing, 
 there should be no place for that theory or fiction of the com- 
 mon law by which the tincture, taint, or attainder of treason 
 works corruption of blood with all its incidents and conse- 
 quences ; and that under no other pretense should the innocent 
 heirs of a convicted and sentenced traitor be hindered from in- 
 heriting through him or from him. Therefore they provided 
 not only that there should be no corruption of blood by attain- 
 der of treason, but also that no attainder of treason should work 
 the forfeiture of any property other than that of which the per- 
 son attainted was the owner in his life time. No attainder of 
 treason, under the Constitution and laws of the United States, 
 can " extend to the disinheriting of any heir nor to the preju- 
 dice of any person other than the traitor himself." Yet the 
 lawyers in Congress seem not to have known distinctly the 
 meaning of this proviso. Having enacted a new statute for 
 the punishment of treason, they seem to have feared that it 
 was not quite constitutional, and they supplemented it with 
 #n explanatory resolution. They took a distinction, unwar- 
 
1863.] Reply to Professor Parker. 207 
 
 ranted by the text of the Constitution, between real estate 
 and personal; and though their statute requires an absolute 
 forfeiture and sale of property in certain eases, their supplemen- 
 tary explanation provides that no punishment or proceedings 
 under the statute shall be so construed as to " work forfeiture 
 of the real estate of the offender beyond his natural life."* 
 
 The Constitution, then, is to be interpreted by common sense, 
 and ultimately by the common sense of the whole people. If 
 it uses, here and there, a law phrase, we may ask lawyers to 
 tell us what the meaning of those words is, or rather what it 
 was when the Constitution was framed, but when we know 
 what those few technical words mean, the meaning of the Con- 
 stitution, in what it requires and in what it forbids, in what it 
 cedes and in what it withholds, is as intelligible to one intelli- 
 gent man as to another. The rules and principles of interpre- 
 tation which you quote from Blackstone and from Story are 
 rules and principles with which every clergyman well educated 
 in his own profession is thoroughly familiar ; for they are essen- 
 tially the same with those which in the language of theologi- 
 cal seminaries are called the science of Herincneuties. They 
 are just what I mean when I say that the Constitution is to be 
 interpreted by the people's common sense, for the science of 
 ITermeneutics, whether for lawyers or for divines, whether ap- 
 plied to the statute book or to the Bible or to any other com- 
 position in any human language — is nothing else than an at- 
 tempt to delineate in a scientific way the processes of thought 
 by which a reader of good common sense ascertains the mean- 
 ing of what is written or printed on the page before him. It 
 is somewhat remarkable that one of the passages which you 
 have cited from Story, announces the identical proposition on 
 which I insist, to wit, that the Constitution is to be interpreted 
 not by professional subtlety, but by common sense. Allow me 
 to repeat the quotation : 
 
 " Constitutions are not designed for metaphysical or logical subtleties, for nice- 
 ties of expression, for critical propriety, for elaborate shades of meaning, or for 
 the exercise of philosophical acuteness, or juridical research. They are instru- 
 ments of a practical nature, founded on the common business of human life, adapted 
 to common wants, designed for common use, and fitted for common understand- 
 
 * See New Englander, Oct. 1862, p. 716. 
 
208 Reply to Professor Parker. [April, 
 
 ings. The people make them ; the people adopt them ; the people must be sup- 
 posed to read them, with the help of common sense ; and cannot be presumed to 
 admit in them any recondite meaning, or any extraordinary gloss." 
 
 Some clergymen, no doubt, are deficient in common sense, 
 and for that reason fall into great mistakes in the interpreta- 
 tion not only of the Constitution but of the Bible, and of what- 
 ever else they happen to take in hand. The same thing is true 
 of " some lawyers," and of some men in every profession. If 
 they blunder, it is not because they are lawyers, or clergymen, 
 or of some other profession, but because they are deficient in 
 common sense. But when a clergyman happens to be thus de- 
 ficient, he is not thereby divested of his rights as a citizen any 
 more than if he were a lawyer. lie may still try to understand 
 the Constitution with such sense as he has ; and his right to say 
 what he thinks about it, is no less sacred than yours. In pro- 
 portion to the greatness of his deficiency in common sense, his 
 vagaries will be harmless; for the people who have common 
 sense are not easily imposed upon by individuals who have 
 none. A lawyer with much professional learning and with a 
 deficiency of common sense, is 'much more likely than any 
 clergyman to mislead the people when he misinterprets the 
 Constitution. Such a lawyer would naturally claim the right 
 to speak as one having authority, and to impose his opinion on 
 the unlearned. The many who never take the trouble to think 
 for themselves are likely to acknowledge his claim, for the reason 
 that he is a lawyer and a learned one, and professes to speak 
 by authority. 
 
 Just here is a difference which you, perhaps, have not dis- 
 tinctly thought of, between your profession and mine. Law- 
 yers, you know, are accustomed to express their opinions au- 
 thoritatively, so far as the laity (that is, the unlearned in the 
 law) are concerned, and to debate questions of law only among 
 themselves. A client has no occasion to understand the grounds 
 or reasons of the opinion which his professional adviser gives 
 him concerning a point of law ; he is under the necessity ot 
 trusting his advisers and leaving his cause in their hands. A 
 clergyman, on the contrary — a Protestant clergyman — ought 
 .to show his hearers good reasons for the doctrines which he pro- 
 pounds. ".Search the Scriptures," is a leading maxim not for 
 
1863.] Reply to Professor Parker. 209 
 
 him only, but for his hearers. He expects and exhorts them 
 to try all his statements of doctrine and of duty by the stand- 
 ard of the Bible. We need not wonder then if some clergy- 
 men venture to inquire into the grounds and reasons of opin- 
 ions concerning the meaning of the Constitution, instead of rest- 
 ing simply on the authority of this or that lawyer ; nor, if on 
 the other hand "some lawyers" are impatient of the imperti- 
 nence, as they deem it, with which many clergymen, in common 
 with many other citizens, distrust and even contradict the in- 
 terpretations of the Constitution authoritatively set forth by 
 gentlemen of the bar in popular harangues, or in newspaper 
 essays. The lawyer's studies and his professional practice are 
 continually training him in the intellectual habit of deference 
 to authorities, — by which I mean not only deference to the 
 sovereignty whose will ordains the law, and is recorded in the 
 written statute, but deference to precedents and learned opin- 
 ions which tell him what the law is. His lucubrations, from 
 the beginning of his studies through his whole course of service 
 at the bar or on the bench, are not exclusively in codes and 
 statute books. The learning of his profession, accumulated' in 
 countless volumes, is almost nothing else than a body of tra- 
 ditions, decisions and opinions, resting on the authority of great 
 judges and great lawyers. In the profession of law, therefore, 
 authority is everything. But in the science of theology and 
 religion, as held by Protestants, authority, other than that of 
 the Scriptures, is nothing. 
 
 Do not understand me as meaning or implying any disre- 
 spect to your profession. I have nothing to say against what 
 Jeremy Bentham used to call "judge-made law." On the 
 contrary, it is the glory of jurisprudence, both English and 
 American, that because it consists so largely in traditionary 
 rules and principles, in the accumulation of judicial decisions, 
 and in the opinions of great lawyers, it is capable of continual 
 progress and of continually reforming its own errors. The 
 science of law is common sense (including the sense of right 
 and wrong) applied to the interpretation of statutes and the 
 administration of justice. It must needs advance, therefore, 
 with the progress of civilization. As the common sense of the 
 
210 Reply to Professor ParJcer. [April, 
 
 people (including their moral sense) becomes more intelligent, 
 the law, not only in the form of statutes, but in the form of 
 judicial decisions and precedents, undergoes a corresponding 
 change. The "judge-made law," which the chimerical philoso- 
 pher of Utilitarianism so abhorred, is an inevitable incident of 
 the administration of justice by courts of law, as distinguished 
 from an attempted administration of justice by arbitrary 
 power. At the same time, it is as really as the statute-law, 
 though in a different way, amenable to the moral influences 
 which act upon society. If the course of judicial decisions is 
 in conflict with the moral sense of the people, and with their 
 common sense, the anomaly cannot continue long unless the 
 people are thoroughly enslaved ; for everybody knows that in 
 strict propriety of speech there is no " judge-made law." 
 Doubtless " some lawyers " are heedless enough to forget this, 
 and to talk as if the interpretation of the Constitution on one 
 point and another Avere irreversibly " settled " by judicial 
 authority ; but you are not one of that sort. It would be un- 
 courteous if I should suppose it possible for you to forget that 
 a court has no more right or power to make new law in any 
 case tried before it, than it has to make new facts. The duty 
 of judges is not to ordain what the law shall be, but only to 
 declare what the law is ; and if through fear or favor — if 
 under the influence of a bribe, or of some personal or partisan 
 interest — if by reason of their ignorance and intellectual ob- 
 tuseness, or by reason of their moral perverseness, they declare 
 that to be law which was not law till they declared it, the law 
 remains unchanged. In the case of John Hampden nine 
 of the twelve judges declared unequivocally, after a protracted 
 trial, that by the law of England the king might lay a certain 
 tax without consent of parliament ; yet everybody knows that 
 in giving such a decision those judges simply declared that to 
 be law which was not law, and that the king's attempt to levy 
 a tax under the name of ship-money was just as unlawful after 
 that decision as before. So in the case of Dred Scott, a ma- 
 jority of the judges attempted to change the Constitution of 
 the United States by the legerdemain of their " law logic." 
 But did they change the Constitution ? No, they only violated 
 
1863.] Reply to Professor Parker. 211 
 
 the Constitution by turning a poor man out of their court, 
 denying him the justice they were sworn to administer, and 
 consigning him to slavery, under a false pretense. The fact 
 that for that plaintiff spurned from their presence, there was 
 no appeal but to the justice of God, so that the wrong he 
 suffered was without a remedy in this world, cannot diminish 
 by one hair-breadth the injustice or the falsehood of the decis- 
 ion. After that decision the Constitution remained just what 
 it was before. — a plain, intelligible document, without the 
 faintest allusion to any distinction of race or complexion 
 among the various classes of the population, (save when the 
 semi-independent " Indian tribes " are mentioned), and with 
 out the remotest implication of the principle which the con- 
 spirators (of whom the Chief Justice was on that occasion the 
 organ) intended to interpolate into the supreme law of the 
 land. 
 
 No dishonor, then, is imputed to lawyers for their profes- 
 sional deference to authority, when I insist that the interpreta- 
 tion of the Constitution is not the prerogative of any one class 
 of citizens. All citizens, clergymen not excepted, are to read 
 the Constitution for themselves ; and it is the right of every 
 citizen to inquire what the Constitution means, to receive light 
 on doubtful or disputed points from whatever quarter it may 
 come, and to give out his opinion in conversation or in public 
 discourse, orally or in print. No doubt a learned and experi- 
 enced lawyer ought to be right. Yet, even so learned a law- 
 yer as you are cannot be recognized as infallible ; and, there- 
 fore, in a case in which you are of one opinion, while some 
 clergyman, or some cobbler, ventures to be of a different opin- 
 ion, it is not only conceivable but possible that your interpre- 
 tation is wrong, and that of the clergyman or the cobbler 
 right. 
 
 I find that I have treated this preliminary question about 
 the comparative rights of lawyers and clergymen to interpret 
 the Constitution, more at length, and in a more rambling way, 
 than I intended. Had you been so kind as to state more 
 exactly the position which you hold and the question you 
 desired me to discuss, you would have saved me this trouble. 
 
212 Reply to Professor Parker. [April, 
 
 The operation of " shelling out the woods" in which an adver- 
 sary may, perhaps, be lurking with his masked batteries, is in- 
 evitably attended with some waste of ammunition. 
 
 Proceeding now to the main question, I am relieved of the 
 difficulty which has embarrassed the preliminary discussion. 
 We know what the question is. You maintain, and I deny, 
 that the President in issuing and attempting to carry into effect 
 the proclamation of September 22d, 1862, has .violated the 
 Constitution of the United States. The issue involves these 
 subordinate questions: First, What guarantees and pledges 
 does the Constitution give, and what duties does it impose 
 upon the Federal Government, in relation to slavery in the 
 several states of the Union ? Secondly, What are the powers 
 with which the President is invested, in time of war, against 
 the enemies of the United States ? Thirdly, Is there anything 
 in the Constitution, or in the law of nations, that forbids his 
 using those powers for the suppression of the rebellion % These 
 three questions seem to comprehend all the points of your 
 argument. I hope that in the discussion, guided as I am by 
 your perspicacity and learning, I shall overlook nothing that is 
 really important to a right conclusion. 
 
 I. Relatione of the Federal Government to Slavery in the 
 several States. 
 
 It is commonly assumed by a certain class of politicans who 
 have had too much success in their endeavors to mislead the 
 public, that the Constitution is essentially a compact between 
 slaveholding states and free-labor states ; that some distinctive 
 rights — not very well defined but commonly spoken of as 
 " Southern rights " — are secured to the slaveholding states ; 
 that the conservation of slavery is one chief end for w T hich the 
 Pederal Government was instituted ; and that to speak or 
 write against slavery is to violate the spirit if not the letter of 
 the Constitution. You need not be told that all these assump- 
 tions are unwarranted. But as what I am writing is likel} 7 to 
 be read by many persons less accurately informed than you, I 
 may be allowed to explain what the Constitution is in its bear- 
 ings on slaver}-. 
 
 1. The Constitution makes no mention of slaves or slavery. 
 
1863.] Reply to Professor Parker. 213 
 
 It uses no words synonymous with these. It knows nothing 
 of the relation in which one man is the property of another, 
 and is liable in law to all the incidents of property. Nobody, 
 not otherwise informed, would be able to obtain from the 
 language of that charter the conception of a Helot race having 
 no rights which the dominant race was bound to respect, 
 bought and sold like cattle in the market, legally incapable (as 
 brute cattle are) of domestic relations, liable to the infliction 
 of torturing punishment at the caprice of irresponsible power, 
 and compelled to labor without wages and with no share in 
 the proceeds of their labor. 
 
 2. This omission is the more significant when we remember 
 that, at the date of the Constitution, negro slavery, as above 
 described, existed in a majority of the states ; that in other 
 states it existed under certain modifications restraining its 
 essential barbarism and securing its early extinction ; and that 
 in one state it had been absolutely abolished by the will of 
 the people expressed in a declaration of rights. Of course the 
 omission of the words slave and slavery, and of all synony- 
 mous words, from a national Constitution designed to form " a 
 more perfect union" of such states, was not accidental. A 
 critical reader with no information concerning the subsequent 
 course of events, would say that the intention must have been 
 to free the Federal Government from all complicity with the 
 institution of slavery. The Constitution knows nothing about 
 human beings held as property — men, women, and children, 
 whose legal status is that of merchandise ; and the Govern- 
 ment which it established ought to have been equally igno- 
 rant. In the intendment of the Federal Constitution all 
 human beings, whatever they may be in the intendment of 
 state legislation, are nothing else than persons "endowed by 
 their Creator with inalienable rights." 
 
 3. If there were any need of showing by testimony that not 
 only the omission of the words slave and slavery, and of all 
 synonymous words, from the Constitution, but the exclusion of 
 the idea and definition of slavery was intentional on the part 
 of the Convention that framed the Constitution, such testi- 
 mony is not wanting. The debates in that Convention, as 
 
214 Reply to Professor Parker. [April, 
 
 written down at the time by the diligent hand of James 
 Madison, show that the omission in question was not because 
 the Convention was squeamish about the use of disagreeable 
 words, but because the leading members of that body were 
 perpetually vigilant lest the Constitution they were framing 
 might, by some circumlocution, seem to recognize slaves as 
 property. In one instance, at least, the language of the instru- 
 ment was modified, after discussion, expressly for the purpose 
 of excluding the possibility of such a construction. If, then, 
 the Constitution recognizes slaves as property ; or, if it recog- 
 nizes slavery, in distinction from other forms of service, as an 
 arrangement to be upheld at all hazards by the Federal Gov- 
 ernment, it has a meaning which the framers of it expressly 
 intended it should not have. 
 
 i i. This view is confirmed by an examination of the particu- 
 lar clauses sometimes referred to by those who would have us 
 believe that the Constitution recognizes slaves as property and 
 guarantees slavery against all interference. In neither of 
 those clauses are slaves spoken of under the specific denomi- 
 nation of slaves, or the specific description of human beings 
 owned as property; but in each instance they are included 
 under a more generic description. If the Constitution has 
 occasion to provide that a slave escaping from one state into 
 another shall not therefore be free, but shall be given up on 
 the claim of his master, it does not describe the fugitive as a 
 slave, bnt only as a "person held to service or labor" — a de- 
 scription which includes the apprentice, the redemptioner, and 
 the peon, as well as the slave. Nor does it speak of the 
 master as the owner of a stray chattel, but only as " the party 
 to whom such service or labor maybe due" — a description 
 which makes the relation between the fugitive and the claim- 
 ant the relation of a debt, to be paid not in money but in 
 personal service. If the Constitution' has occasion to arrange 
 and define a compromise between the apportionment of repre- 
 sentatives and direct taxes among the several States according 
 to their gross population, and the apportionment according to 
 their free population, it says nothing about slaves, but com- 
 prehends them under the general description of persons who 
 
1863.] Reply to Professor Parker. 215 
 
 are neither free nor held to service for a term of years, — a de- 
 scription which includes peonage and the condition of peasants 
 adscripti glehce, as well as slavery, and which in every applica- 
 tion of it, is far from implying that the "persons" described 
 are regarded as property. If the Constitution has occasion to 
 define the date at which the Federal Government shall be in- 
 vested with full power for the suppression of the African slave- 
 trade, it speaks not of the slave-trade nor of Africa, but of " the 
 migration or importation of such persons as any of the States 
 now existing may think proper to admit ;" and every word 
 which it employs is just as applicable to free emigrants from 
 any European or Asiatic country as it is to slaves from Africa. 
 
 5. There is no room then to misunderstand the animus of 
 the Constitution in regard to slavery. Not only does that 
 great charter of our Government avoid all recognition of 
 slavery as distinguished from service for wages under the obli- 
 gation of a voluntary contract ; but it expressly stigmatizes all 
 systems and methods of servitude in which the obligation to 
 service is not for a definite term of years, by providing that 
 such a population, whether slaves, or peons, or peasants bound 
 to the soil, shall be reckoned as worth to the commonwealth 
 only three-fifths of what they would be if they were free or 
 had a sure and definite expectation of freedom. Thus it holds 
 forth to every state containing such a population a standing 
 offer that whenever the state shall have abolished its system of 
 servitude, or shall have limited by " a term of years" the per- 
 sonal servitude of all who, by its laws, are held to service, it 
 shall be permitted to represent in Congress, and in the Electoral 
 Colleges, not three-fifths only, but five-fifths of that heretofore 
 degraded population. Instead of the theory so common among 
 vulgar politicians — the theory incorporated into the Dred 
 Scott decision — namely, that the Constitution abhors a free 
 negro, and regards slavery as the normal condition of the 
 African race — we have the palpable fact that in the estimate 
 of the Constitution the conversion of a negro slave into a free 
 negro adds forty per cent, to his value as related to the wealth 
 and power of the State. 
 
 0. I do not pretend that slavery was abolished by the Con- 
 
216 Reply to Professor Parker. [April, 
 
 stitution. My position is, that neither the Constitution, nor 
 the government created by it, has anything to do with uphold- 
 ing, perpetuating, or defending that particular institution. Sla- 
 very existed before the Constitution, not by the law of nature 
 and of nations, nor by the inherited common law of England, 
 nor by any provision of the old Confederation, but simply by 
 the local law of each several State which had not abolished 
 the barbarism. So it has existed since the organization of our 
 Federal Government, and exists to-day, not by virtue of the 
 Constitution, nor by any authority derived from it, but only by 
 the local law r of certain States. Those States, in the exercise 
 of powers not delegated to the Union, make one man the prop- 
 erty of another ; and because he is property, they make him 
 legally incapable, not only of political, but of civil and social 
 rights. They deny him the right to the use of his own facul- 
 ties as a human being. They deny him the right to ow r n any- 
 thing, save as a horse may be said to own the shoes that are 
 nailed to his hoofs, and perhaps the blanket that coves him in 
 his stall. They deny him the right of a husband in his wife, 
 and of a father in his children, making the factitious right of 
 his owner and theirs paramount to all that is sacred in those 
 natural affections and duties which are the first rudiment of 
 society. But of all this the Federal Constitution knows nothing. 
 For all these wn-ongs it has no responsibility. Whatever the 
 slave may be in the theory and intendment of the local law, 
 established and executed by the State, the Federal Constitution 
 knows him not as a thing, but only as a man — a " person held 
 to service." The four millions of slaves, in the national census 
 of 1860, are not property, but population, inhabitants whose 
 human nature contributes to the aggregate power of the nation, 
 though the tenure by which they are held to service under 
 state laws, makes them an inferior class, less valuable by two- 
 fifths than they would be if their human nature, with all its 
 capabilities of want and aspiration, of knowledge and progress, 
 of hope and love, could have fair play. 
 
 7. The Federal government has no authority to execute 
 state laws. In each several state the local law is made by an 
 authority distinct from that of the nation as a whole, and is ad- 
 
1863.] Reply to Professor Parker. 21 Y 
 
 ministered exclusively by magistrates whose power is derived 
 from the same source with the law itself. The national gov- 
 ernment has nothing to do with the execution or enforcement of 
 any laws but its own. It cannot interfere to protect a wife 
 against the cruelty of an unnatural husband ; nor can it release 
 an injured husband from his legal obligation to a faithless wife. 
 As little can it interfere in behalf of a master against his ap- 
 prentice or his slave, or in behalf of the -'person held to ser- 
 vice" against "the party to whom such service or labor may 
 be due." The only exception, or pretended exception, to this 
 is when the "person held to service or labor in one State under 
 the laws thereof;' has escaped into another State. In that case, 
 and no other, it has been held by Congress and by the Courts, 
 and generally admitted by the American people, that the Fed- 
 eral authority is to interfere by a law of its own for the cap- 
 ture and delivery of the fugitive, which it must execute by its 
 own officers. I have not forgotten the opinion of the late Dan- 
 iel Webster, that this exception ought not to have been made ; 
 but without raising that question it is enough to say that in 
 this instance the exception proves the rule. No functionary of 
 the Federal government, whether civil or military, has any- 
 thing to do with the administration or execution of the local 
 laws & peculiar to every State. Has it ever been claimed that 
 the national authority is bound by the Constitution, or is in- 
 vested with constitutional power, to interfere, within the juris- 
 diction of a State, to protect the slave against the severity of 
 the master % On what theory can it be pretended that the 
 same authority is bound, or is authorized to protect the master 
 against the indolence or the fugacity of the slave? 
 °So much it has seemed necessary to say concerning the re- 
 lations of the national Constitution and government to slavery 
 in the several states. If these views are correct, the conclusion 
 is unavoidable, that in refusing to recognize slaves as property 
 and as liable to the incidents of property, or to assume at any 
 place the administration of the local laws which establish and 
 sustain the institution of slavery, the President and Congress, 
 and the officers, civil and military, under their authority, abdi- 
 cate no duty imposed upon them by the Constitution. With- 
 
218 Reply to Professor Parker. [April, 
 
 out venturing to censure in any respect the course of the admin- 
 istration, I cannot but think that if President Lincoln had 
 taken this ground, distinctly and unequivocally, from the be- 
 ginning, some serious difficulties which he has encountered in 
 the conduct of the war, would have been obviated. For ex- 
 ample, the answer which General Butler made to a Virginian 
 slaveholder, and which has given a new meaning to the word 
 " contraband," was an ingenious evasion by which a shrewd 
 lawyer, holding the political heresy that slaves are property 
 under the Constitution, succeeded in reconciling his theory as 
 a lawyer with his obvious duty as a patriot soldier. And in- 
 deed if slaves are property, they are a kind of property which 
 ought not to be left in possession or within reach of the enemy, 
 for neither quinine, nor saltpetre, nor lead, nor fulminating 
 powder for percussion-caps, is so important to the enemy in a 
 military view, as slaves who understand that they have nothing 
 to hope from the success of our arms. But suppose General 
 Butler had said to that Virginian, "The man whom you pro- 
 pose to seize and carry off is indeed within my lines, and for 
 aught I know he may be your slave under the law of Virginia ; 
 but I am not here to decide any question between you and 
 him, nor to administer your local law ; nor will I permit any 
 unoffending man to be seized in my camp without process of 
 law. Where is your writ or warrant from some competent 
 authority under the Governor of Virginia ?" This would have 
 raised the question, " Is there any Governor of Virginia ? and 
 if so, who is he ? " No man recognizing John Letcher as Gov- 
 ernor, or the usurping body at Richmond as the legislative 
 power in that state — no man refusing to recognize Governor 
 Pierpont and the state legislature at "Wheeling, should have 
 been tolerated for a moment in claiming under the laws of a 
 government not recognized by the United States the ownership 
 of a human being. This position, which is the only position 
 consistent with the genius of the Constitution, would have 
 made it plain to all men from the outset, that where there is 
 no state government, there is no power to legalize or sustain 
 the law of slavery in any of its distinctive elements. It would 
 have been an effectual proclamation to all the conservatives of 
 
1863.] Beply to Professor Parker. 219 
 
 slavery, south and north, that there can be no recognition of 
 the relation between master and slave by any Federal author- 
 ity, save at the demand of a state government adhering to the 
 Constitution and the Union. But the administration was nat- 
 urally embarrased by the traditions which it had inherited 
 from predecessors who seem to have thought that the oath of 
 loyalty to the Constitution was nothing else than an oath of 
 loyalty to slavery. 
 
 These elementary views illustrate only the normal relation 
 of the Federal Government to slavery as an institution created 
 and administered by the local laws of certain states in the 
 Union. I now proceed to another topic. 
 
 II. Powers and Duties of the Federal Government in rela- 
 tion to enemies of the United States. 
 
 The men who formed the Constitution, and the people who 
 adopted it, had just emerged from a seven years' war, on their 
 own soil, with one of the most powerful nations of the old 
 world, a war which was at the same time a civil war. Expe- 
 rience had taught them the needfulness of such a government 
 as would have ample power to prosecute any future war against 
 the enemies of the United States. Experience had taught 
 them, too, that, by the necessity of the case, war, and especial- 
 ly civil war, invests a government with powers for the defense 
 of liberty which cannot be wielded in time of peace without 
 implying the loss of liberty. The Continental Congress, with 
 no formal grant of powers from the several states, had placed 
 itself at the head of the nation in its conflict for existence, had 
 made the Declaration of Independence, had raised armies in 
 the name of the Union, had issued bills of credit with no other 
 basis than requisitions on the states for money which the states 
 might pay or refuse to pay at their discretion, had invested 
 their commander-in-chief with almost dictatorial powers, had 
 sent forth embassies and negotiated treaties, had conducted the 
 war to a successful termination, and having lost by that great 
 success, the powers which every government that conducts a 
 war must wield against the enemies of the nation, it had be- 
 come too weak for the easier functions of government in time 
 of peace. A new government was to be instituted for the na- 
 
220 Reply to Professor 2 Parker. [April, 
 
 tion ; and the experienced statesmen in tlie convention well knew 
 that if they could institute a government which should perform 
 its functions steadily and efficiently, and without danger to lib- 
 erty, in times of peace, and which should be entrusted with 
 the duty and the power of the national self-defense, war. 
 whenever it might arise, would invest that government with 
 all power against the enemies of the United States. The Con- 
 stitution formed by their wisdom takes certain powers from the 
 several states and gives them to the Union. It entrusts the 
 exercise of those powers to a national government, distributing 
 them according to their nature, some to Congress, some to the 
 President, and some to the courts which Congress is required 
 to institute. It carefully reserves certain rights to the several 
 states and to the people; it provides for justice to "foreign 
 states, citizens or subjects ;" but it takes no care to protect the 
 enemies of the United States against the government which it 
 establishes. Enemies at war with the United States have no 
 rights other than those which are theirs by the law of nations 
 and the laws of war. The Constitution has no occasion to pro- 
 vide for enemies at war with the Union anything else than a 
 speedy and effectual destruction. The idea that declared ene- 
 mies, waging w T ar upon the Union, have rights under the Consti- 
 tution, is too preposterous to be entertained. We have only to 
 inquire how the duty of destroying and subjugating the ene- 
 mies of the United States, and the powers necessary to that 
 end, are divided between Congress and the President. 
 
 1. Powers and Duties of Congress. 
 
 Looking into the Constitution, I find that Congress, as the 
 legislative power of the nation, is to prepare and supply, at its 
 own discretion, all the means and machinery of war, and is, 
 therefore, invested with an almost unlimited power of taxation 
 " to pay the debts and provide for the common defense and 
 general welfare of the United States ;" that it is " to raise and 
 support armies ;" that it is " to provide and maintain a navy ;" 
 that it is " to makes rules for the government and regulation 
 of the land and naval forces ;" that it is " to provide for call- 
 ing forth the militia to execute the laws of the Union, suppress 
 insurrections and repel invasions ;" and that it is " to provide 
 
1863.] Reply to Professor Parker. 221 
 
 for organizing, arming, and disciplining the militia, and for 
 governing such part of them as may be employed in the ser- 
 vice of the United States." In addition to all this, Congress is 
 invested with the power of declaring war and of legalizing 
 other measures of hostility ; so that no war shall be lawful 
 which is not recognized as such by the legislative power of the 
 Union. 
 
 2. Powers and Duties of the President. 
 
 The Constitution creates one office never known before in 
 the Union, and designates it by a title unknown till then in 
 history. A Congress of the United States had been in exist- 
 ence for half a generation ; and the idea of governing the 
 Union by a Congress was familiar to the people. During the 
 revolutionary conflict, all the powers of goverment (so far as 
 there was any government of the Union) were exercised by 
 Congress without any other warrant than the fact that the 
 United States were at war with a powerful enemy invading 
 the country from abroad, and with enemies at home who were 
 often rising in arms and always ready to help the invaders. 
 Experience had shown the inconveniences and the incurable 
 weakness of such a government. Accordingly, the Congress un- 
 der the Constitution is a very different thing from what the Con- 
 tinental Congress had been. The difference is not merely that 
 Congress, as now constituted, consists of two houses, the States 
 being represented equally in one and proportionately in the 
 other, and the members voting in both as individuals and not by 
 States ; it is also, and chiefly, that the Constitutional Congress 
 is invested with the legislative power of the Union and 
 with hardly any other power. The power of inquiry in order 
 to the ascertainment of facts, is incidental to the power of 
 legislation. The power of impeachment by the House of Rep- 
 resentatives, and removal from office by the Senate, and the 
 power of electing a President by a peculiar method in case of 
 a failure on the part of the electoral colleges, are instances of a 
 power not strictly legislative yet properly entrusted to the legis- 
 lative body. But with these exceptions, Congress, under the 
 Constitution, has no power other than the power of making 
 laws, and, as incident thereto, the power of inquiry. Instead 
 
 vol. xxn. 15 
 
223 Reply to Professor Parker. [April, 
 
 of governing the Union, as the old Congress attempted to do, 
 our Congress is entrusted with a very different class of func- 
 tions. By its power of making laws, of taxation, of granting 
 or withholding supplies, of specific appropriation, of inquest, 
 and of impeachment, as well as by its j)ower of declaring war, 
 it is a check upon the government, but it does not govern. 
 The power of governing the Union, as distinguished from the 
 power of making laws on the one hand, and from the power of 
 trying and deciding "cases in law and equity" on the other 
 hand, is entrusted to an officer with a new title, the " President 
 of the United States." In him is vested by the Constitution 
 " the executive power " — not simply the power of executing 
 the orders of Congress like a sergeant- at-arms, nor simply the 
 power of carrying into effect like a marshal the sentences of 
 the courts, but the power of executing the functions of what is 
 properly government. The President is the prime minister of 
 the national sovereignty, the responsible head of the entire ad- 
 ministration. The present inquiry has nothing to do with his 
 powers in time of peace. It relates only to his powers against 
 the enemies of the United States in time of war. 
 
 (1.) If Congress has performed its constitutional duty in the 
 way of legislation, there is an army and a navy, and provision 
 has been made for their support and efficiency ; regulations 
 have been established for their government by proper officers 
 and for the punishment of offenses against military discipline ; 
 provision has been made for organizing, arming, and training 
 by a uniform discipline, just that portion of the population 
 which may be required as a militia ; and there are laws by which 
 the militia, or any part of it, may be called forth in an emer- 
 gency " to execute the laws of the Union, suppress insurrec- 
 tions, and repel invasions." Of all that force — the army, the 
 navy, and the militia called into the service of the Union — the 
 President is " commander-in-chief." This is the trust which 
 was committed to Washington in the war for independence. 
 He held the command over the continental army raised by 
 Congress, and over all bodies of militia called into the service 
 of the Union. Whatever powers were wielded by him in that 
 .command, against the enemies of the United States, under the 
 
1863.] Reply to Professor Parker. 223 
 
 law of nations and the laws of war, are the powers which the 
 Constitution requires the President to use for the destruction 
 and subjugation of the enemies of the United States, whenever 
 war has been legalized by Congress. But there is one very 
 important difference. Washington was commander-in-chief 
 by virtue of a commission from Congress delegating to him 
 powers which they had assumed as belonging to them. The 
 President is commander-in-chief by the fiat of the Constitu- 
 tion. The Continental Congress was in fact commander over 
 Washington, who received his orders as well as his commission 
 from that higher authority. The President has no superior 
 but in the sovereignty by whose will the Constitution was or- 
 dained and established, and of whose will it is, till duly 
 changed, the highest expression. Congress declares war ; the 
 President makes war. 
 
 (2.) If Congress has performed its duty of making provision 
 for an organized and trained militia, and for calling forth t]iat 
 militia in an emergency, the President, in case of a combina- 
 tion to resist the laws of the Union, has power to " take care 
 that the laws be faithfully executed," and in case of an insur- 
 rection or invasion, he has power to act at once with warlike 
 force against the enemies of the United States without waiting 
 for Congress to be assembled. Against invaders from abroad 
 or traitors in arms at home, he has power to use immediately 
 all measures of destruction or subjugation not contrary to the 
 law of nations and the laws of war. 
 
 (3.) The President has power, with the advice and consent 
 of the Senate, given in a two-thirds vote, to negotiate and con- 
 clude a treaty with the enemies of the United States, imposing 
 upon them such terms as victory shall have enabled him to dic- 
 tate, or submitting to such terms as " the fortune of war" shall 
 have compelled him to accept. The same treaty-making power 
 which acquired, as the result of conquest, California and New 
 Mexico, and which carried the western boundary of Texas 
 to the Rio Grande, is competent to make peace with any hos- 
 tile power recognized or unrecognized before, and to purchase 
 that peace by any cession of territory, or any national humilia- 
 tion, which disaster and defeat on our part shall have made in- 
 evitable. A treaty made " under the authority of the United 
 
224 Reply to Professor Parker. [April, 
 
 States " — though it cedes the political liberty of the states 
 and the independence of the nation — is " the supreme law of 
 the land," and can be set aside only by renewing the Avar. 
 While the Constitution has unequivocally ordained that in our 
 government, the President, acting by and with the advice and 
 consent of the Senate, shall be the depositary of the treaty- 
 making power, it imposes no limitation on the exercise of that 
 power. Nor is such a limitation really possible. The constitu- 
 tion of Mexico expressly denied to its government the power of 
 ceding any portion of the national territory; but what did that 
 prohibition avail against necessity % Was the treaty invalid by 
 which Mexico purchased peace with the United States ? Is the 
 title worthless by which we hold the vast and rich territory 
 ceded to us in that treaty ? In the nature of the case every 
 government that can wage war must have a power of making 
 peace on such terms as a victorious enemy may dictate, and that 
 power of making peace can have no limit. 
 
 3. Cooperation of Congress and the President. 
 
 The state of war is legalized by act of Congress. Men, 
 money, ships, fortresses, all the means of war, are placed at the 
 disposal of the President by acts of Congress. " Rules con- 
 cerning captures on land and water "may be made by Con- 
 gress. A President may be ambitious of conquest ; he may 
 have a passion for wielding the powers with which a state of 
 war invests him, but which pass from him when peace returns ; 
 he may desire to enrich himself or his friends and dependents 
 with property captured in war ; he may entertain designs 
 against the ends for which the Constitution was ordained. But 
 he can do nothing without the cooperation of Congress, and he 
 cannot infringe the prerogatives of that body without exposing 
 himself to impeachment and removal. Congress, on the other 
 hand, is limited and checked by the powers vested in the Pres- 
 ident. It may declare war ; but it cannot make peace. It 
 may impose taxes and make appropriations for warlike pur- 
 poses ; it may authorize the raising of armies by voluntary en- 
 listment or by drafting ; but it cannot organize a regiment nor 
 set a squadron in the field. It may define the rank, duties, 
 and emoluments of all officers subordinate to the commander- 
 
1863.] Reply to Professor Parker. 225 
 
 in-chief; but every officer from the lieutenant-general down- 
 ward, must be nominated, and (with the advice and consent of 
 the Senate) commissioned by the President. Congress depends 
 on the President for an earnest and efficient prosecution of the 
 war which it declares, as really as the President depends on 
 Congress for men and the material means of war. 
 
 To sum up this analysis of the powers and duties of the Fed- 
 eral Government in relation to the enemies of the United 
 States, I may say that, in a state of war, recognized as such by 
 Congress, the Government has power to employ the entire re- 
 sources of the country against the enemies of the country, and its 
 power in that respect is limited only by laws higher than the 
 Constitution and independent of it. Congress having legalized 
 the war, and having provided the men and means, it becomes 
 the constitutional right and duty of the President to use every 
 legitimate method and expedient of war for the purpose of dis- 
 tressing, weakening, destroying, and subduing the enemies of 
 the United States. If there be any such expedient which he 
 persistently refuses to employ, when he knows that in a mili- 
 tary point of view it is essential to the early and prosperous 
 termination of the war, he is unfaithful to his office. If he can 
 weaken and embarrass the enemy by inviting any portion of 
 the population under their control to renounce all subjection 
 to that hostile power, and by promising them protection and 
 liberty, it is not only his right but his duty to do so. If those 
 enemies of the United States have under their control millions 
 of slaves whose reluctant labor, though far less productive than 
 the labor of freemen, is to them " the sinews of war," he cannot 
 reasonably regard those slaves as anything else than a population 
 oppressed by the power with which he is waging war for his 
 country ; nor can he, without conspicuous unfaithfulness in his 
 high office, refuse to alienate them from the service of that hos- 
 tile power by giving them every reasonable assurance needfnl 
 to that end. 
 
 But you seem to think that the powers of the President, in 
 the prosecution of the present war, are limited by the fact that 
 the enemies with whom we have to do are traitors and rebels, 
 and are liable in law to the penalties of treason. You main- 
 
226 Reply to Professor Parker. [April, 
 
 tain, if I understand you, that, in this conflict, the United 
 States have not the rights which, by the law of nations and the 
 laws of war, belong to a belligerent power ; and that we can 
 not claim those rights without conceding them at the same 
 time to the other party. The question, then, arises, whether 
 there is anything in the Constitution, or in that law of nations 
 which it presupposes, that should restrain the President from 
 using, for the conquest of this rebellion, the powers with which 
 he is invested against the enemies of the United States. 
 
 III. Powers and duties of the President in a war with 
 traitors. 
 
 You have suggested (unintentionally, I presume) a distinc- 
 tion between the present conflict with a huge rebellion, and the 
 process of suppressing a mere insurrection. To avoid admit- 
 ting that the United States are really at war, you speak of 
 " the right to suppress an insurrection by forcible means, 
 which means, from the magnitude of the rebellion, have as- 
 sumed the proportions of war." Let me ask your attention to 
 the distinction which these words suggest, but which you 
 seem to have overlooked. The dictionary says of " insur- 
 rection,'' (I quote from "Webster's quarto, first edition), " It 
 differs from rebellion, for the latter expresses a revolt, or an at- 
 tempt to overthrow the government, to establish a different 
 one, or to place the country under another jurisdiction." Un- 
 der the word " rebellion," it says, " Among the Romans, rebel- 
 lion was originally a revolt or open resistance to their govern- 
 ment among nations that had been subdued in war ;" and its 
 first definition of the word is, "An open and avowed re- 
 nunciation of the authority of the government to which 
 one owes allegiance ; or the taking of arms traitorously 
 to resist the authority of lawful government ; revolt." The 
 idea of rebellion includes the idea of insurrection, but there 
 may be an insurrection which is not rebellion. This thing 
 with which we have to do at present is more than a mere 
 insurrection. It is in the strict sense — and I might even 
 say in the old Roman sense — a rebellion on the largest scale. 
 South Carolina, for instance, was conquered from the British by 
 the United States in the war of independence ; and, instead of 
 
1863 ] K<piy t0 ^ r °f essor parkcr - 
 
 were incorporated. So of all the States which are commonly 
 
 oole of Lhavio^ seceded from the Union -each ot hem 
 
 1 1 es ntcd U its own local government, has revolted. I 
 
 attempt as a mere insurrection. This is not a tumn 
 
 /on in Virginia; it is a rebellion ^g~wt* 
 the provinces governed by he. , ^ tim „ an 
 
 l « ev" X. u *h i be necessary to lire upon the rioters a 
 force, even tnou insu ,,. ec tio.i ; disorder- 
 
 ;: : ,; s T«Ti^° *» 0^**™ ^ 
 
 flaws or a change of government; and a greater and bloodier 
 
 order, but the suppression of a mere insure » * • ot 
 When the insurrection becomes a revolt, when the local antic 
 Sad and control the movement, when -»- ^JJ 
 mobs assail the imperial or national power, wher .a »W 
 government is organized and is clamnng recogni , ,, hemove 
 Lot is more than an insurrection-it is arcbell.cn, and rebel 
 
 lion is war. 
 
 I sly^n, that what " we, the people of the United State,' 
 
 have on hand just now, is the conquest of a rebellion Je 
 
 are not dealing with a riot, nor with a mere msurrec ion ot a 
 
 bble We fre in the midst of a civil war, the greatest that 
 
 ^ world has ever seen. Almost the entire territory £, eleven 
 
 States has been occupied, and the P«J^££*5K 
 great military force, and what we have to do is to regain > 3 
 
228 Reply to Professor Parker. [April, 
 
 conquest what we have temporarily lost, and to liberate those 
 of our countrymen whose submission to the intrusive and 
 usurping power is so far involuntary as to be excusable. Accord- 
 ingly this conflict has been recognized as war by the supreme 
 authority of the nation, as well as by the foreign powers that 
 have proclaimed their neutrality. You quote, for another 
 purpose, the manifesto in which Congress announced to the na- 
 tion and to the world the purposes for which the struggle is to be 
 maintained on our part. I mean the resolution of July, 1861, 
 which I take leave to transcribe as conclusive on the question 
 whether we are really at war. 
 
 " Besolved, That the present deplorable civil war has been forced upon the coun- 
 try by the disunionists of the Southern States, now in arms against the constitution 
 al Government, and inarms around the capitol; that in this national emergency, 
 Congress, banishing all feelings of passion or resentment, will recollect only its 
 duty to the whole country ; that this war is not waged on their part in any spirit 
 of oppression, or for any purpose of conquest or subjugation, or purpose of over- 
 throwing or interfering with the rights or established institutions of those States, 
 but to defend and maintain the supremacy of the Constitution and to preserve the 
 Union, with all the dignity, equality and rights of the several States unimpaired ; 
 and that as soon as these objects are accomplished the war ought to cease." 
 
 Can anybody who reads the manifesto, be at a loss to decide 
 whether the conflict with the great rebellion is really, in the 
 estimation of the government, war, or only something less than 
 war? Can anybod} 7 doubt whether our generals on the land, 
 our admirals on the sea, and the constitutional commander-in- 
 chief of our army and navy are really invested with all bellig- 
 erent rights against these belligerent enemies of the United 
 States? 
 
 You are quite correct in imputing to me the opinion that in 
 tlii> war "the government has all the rights of a belligerent 
 which would be recognized by the law of nations in l a foreign 
 war." You are equally correct in saying that "practically 
 there cannot be a war in which there is only one belligerent." 
 But I am compelled to pause over your opinion when you 
 " think it may safely be asserted that there is no war, foreign 
 or domestic, in which one of the parties is entitled to all the 
 rights of a belligerent, as recognized by the law of nations, un- 
 less the other party is also entitled to the same rights." While 
 
1863.] Reply to Professor Parker. 229 
 
 I admit the safety of your assertion in its most obvious sense, 
 I am constrained to pause over it in the suspicion that there is 
 something equivocal and misleading in your use of the word 
 "right." My suspicion grows when I find you proceeding to 
 say, "If we claim all these rights we must concede them to the 
 Confederates,*' and arguing that if we recognize the rebels as 
 actually making war upon us, and if we deal with them accord- 
 ing to the laws of war, we virtually acknowledge that they 
 are no longer liable to punishment by the civil authorities for 
 the crime of levying war against the United States. That I 
 may be sure of doing you no injustice, I transcribe your lan- 
 guage. 
 
 " 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 belliger- 
 ent. 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 Govern- 
 ment itself, instead of pursuing its attempt to subdue the rebellion, assumes to it- 
 self 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 trait- 
 ors. The acts of Congress for the punishment of treason by confiscation, <fec, 
 could no longer apply to subsequent acts, as between belligerents there can be no 
 treason in acts of hostility. 
 
 " If the United States may exercise all the rights of a belligerent in the terri- 
 tory 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 were 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 Mary- 
 land 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' " 
 
 Before I proceed to the consideration of your authorities, al- 
 low me to say, with all respect, that if you are not amusing 
 
230 Reply to Professor Parker. [April, 
 
 yourself by practicing on me a little of that verbal or logical 
 legerdemain which Coleridge calls "logodwdaly" you are im- 
 posing upon yourself by not observing with sufficient exact- 
 ness the meaning of the words you use. It is necessary for 
 me to unravel, if I can, the network of sophisms in which your 
 argument would ensnare me. A few simple statements may 
 be sufficient for that purpose. 
 
 1. Nothing is more obvious than that there are belligerents 
 wherever there is war, and that wherever there is one bellig- 
 erent there are two. 
 
 Sf. The recognition of a war as a matter of fact, and the 
 consequent recognition of the parties to that war as belliger- 
 ents, and as having in relation to each other, and in relation to 
 the world, all the rights which modern civilization concedes to 
 the parties in a war, is a very different thing from recognizing 
 those two parties as independent sovereignties. The European 
 powers have recognized the present conflict in our country as 
 a war, and have therefore recognized the parties as belligerent, 
 but in so doing, they have not recognized the pretended Con- 
 federacy as a sovereign pow r er, nor the war as anything else 
 than a great rebellion against the sovereignt} 7 of the United 
 States. 
 
 3. Wherever there is a war, all the belligerent rights of the 
 belligerent parties may be acknowledged without implying any 
 concession or any assumption in regard to the rightfulness of 
 the war itself, or in regard to the conclusion and consequences 
 of the war. In such an acknowledgment, whether by neutrals 
 toward the parties, or by the parties toward each other, noth- 
 ing is acknowledged but the fact that the conflict is war, to be 
 conducted in conformity with the usages of the civilized world. 
 The war may be on one side, or on both sides, flagitious in its 
 origin — it may be an unprovoked invasion for purposes of con- 
 quest or an unprovoked rebellion against an established and be- 
 neficent government, but be it ever so wicked in its origin, and be 
 the question at issue what it may, the recognition of it as a war, 
 and of the parties as belligerents, implies nothing more than 
 that, while the war lasts, the accepted laws of war — including 
 the rules which define the rights of neutrals and the rules 
 
1863.] Reply to Professor Parker. 231 
 
 which define the rights of the parties belligerent — are to be 
 respected on all sides. The laws of war relate to nothing but 
 the manner of carrying on the war. 
 
 4. Your statement that " the late incursion into Maryland 
 was, on [my] position, lawful war," and that "no laws of the 
 United States were broken by the forces concerned in it, so as 
 to subject them to penalties," may serve to illustrate the con- 
 fusion of your argument. Judged by the laws of war, the late 
 incursion of the rebels into Maryland was " lawful " — a lawful 
 measure of hostility, as lawful as the operations of General 
 McClellan in the Yirginian peninsula. The battle of Antietam 
 was as lawfully fought by the rebels as the battle of Bull Run 
 or any other battle of the war. But with the question wheth- 
 er the war itself is lawful on the part of those whom you call 
 the Confederates, the laws of war have no concern. If the acts 
 in which the war began — the pretended ordinances of secession, 
 the furtive or violent seizure of the national property, the pro- 
 tracted siege of Fort Sumter, ending in the bombardment and 
 capture of that fortress — were in accordance with the Constitu- 
 tion of the United States, which is the supreme law of the land, 
 or if they were in accordance with that higher law by which 
 insurrection and revolutionary violence must be justified or 
 condemned, then the whole war is lawful on their part, and the 
 lawfulness of the whole includes the lawfulness of every por- 
 tion, excepting only those atrocities which are contrary to the 
 usages of civilized races and which are to be punished by mili- 
 tary retaliation. 
 
 5. Not only has our National Government recognized this 
 conflict expressly as a war, but it has in almost every other way 
 recognized the rebels as a belligerent party, and its own obli- 
 gation to conduct the conflict in accordance with the laws of 
 war. Has any privateer, captured on the high seas, under the 
 rebel flag, been hanged for piracy ? Of the tens of thous- 
 ands of rebels taken in arms against the United States, has 
 any one been hanged for treason, or tried, or even arraigned 
 before any civil tribunal for an offense against the laws % 
 What one rule or principle is there in the system known as the 
 laws of war, which our Government does not recognize as 
 
232 Reply to Professor Parker. [April, 
 
 binding on the parties in this civil war, and on itself as one of 
 the parties 1 
 
 6. The question to be determined by this war is just the 
 question which you say is conceded by acknowledging that it 
 is a Avar, and that the parties to it are belligerent parties. 
 The question to be determined is whether the pretended ordi- 
 nances of secession are lawful — whether the so-called seceding 
 States are in fact an independent sovereignty. All civil pro- 
 cess against the traitors as we call them — all arraignment 
 of them before the tribunals of civil justice — must wait till 
 that question shall have been determined by the arbitrament 
 of battle. If the war shall terminate in the conquest of the 
 rebellion, then, as soon as the authority of the Constitution 
 and laws shall have been completely established over those who 
 have made war upon their country, the laws of war and the 
 rights of belligerents will have nothing to do with the sequel. 
 When that result shall have been attained, the lawyers may 
 sing Cedant anna toga], and may rejoice in the prospect of 
 trials for treason and of infinite litigation. If the war shall 
 terminate otherwise, the civil tribunals will have no opportu- 
 nity of dispensing justice to any of the traitors ; for, the great 
 treason having prospered, it will cease to be treason before the 
 law. 
 
 Let it not shock your love of justice or your patriotism, if 
 I add that ever since this war was recognized as war by the 
 Government and the people, and by neutral powers, I have 
 not expected that in any event the traitors will suffer the 
 penalty of death, simply for their treason, under the sentence 
 of any civil tribunal. The time has been when kings were 
 brought to the scaffold for treason against their subjects, and 
 when the leaders of an unsuccessful but well sustained revolt 
 against a government were subjected to the indignity of dying 
 under the hands of the executioner. But such things are out 
 of fashion at present ; and though John Brown was hanged 
 because his insurrection, being preposterously ill-prepared, was 
 a failure from the outset, Jefferson Davis may escape the halter 
 for the very reason that his stupendous crime has come so near 
 to a complete success. Of the rebel leaders who may survive 
 the war, some will effect their escape to countries where the 
 
1863.] Reply to Professor Parker. 233 
 
 saving clause for political offenders, in treaties of extradition, 
 will be their protection ; others may be captured, tried, con- 
 victed, sentenced, and their sentence be commuted by execu- 
 tive clemency ; but none will be hanged save those who may be 
 hanged by the well known summary process of southern indig- 
 nation, and those who, in imitation of conspicuous examples 
 from the Scriptures, may hang themselves. Yet nothing but a 
 national act of amnesty will make it safe for any one of them 
 to remain in the country for a day after the war shall have 
 ended in a final victory for the Union. 
 
 I come now to the consideration of the authorities which you 
 adduce in support of your position that, as against the rebel- 
 lion, the United States have not the rights of a belligerent. 
 Your first citation is from Gen. Halleck's chapter on the "dif- 
 ferent kinds of war." That I may do you no injustice, I tran- 
 scribe the entire passage as quoted by you, and that I may do 
 no injustice to the author, I transcribe it with its context. 
 
 " § 9. Civil wars are those which result from hostile operations carried on be- 
 tween different parts of the same state, as the wars of the roses in England, of 
 the league in France, of the Guelphs and Ghibelines in Italy, and of the factions 
 in Mexico and South America. Wars of insurrection and 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, ra- 
 ther than for its dismemberment, or for a radical change in its government. Each 
 party, in such cases, 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 established between sovereign 
 states. As is shown elsewhere, every neutral state, in such n contest, must de- 
 termine when it will consider a party in a rebellion, insurrection, revolution, or 
 civil war, entitled to the rights of a belligerent in its international relations." 
 Halleck, International Law and Laws of War. (San Francisco, 1861). pp.332, 
 333. 
 
 Your quotation omits the first of the foregoing sentences, • 
 and the last ; and you mark as specially significant the words, 
 " Mere rebellions, hoioever, are considered as exceptions to this 
 rule, as every government treats those who rebel against its au- 
 thority according to its own municipal laws." You expect 
 me to accept this clause as proof, that in Gen. Halleck's opin- 
 
234 Reply to Professor Parker. [April, 
 
 ion, the United States are not entitled to the rights of war 
 against the Confederates, so called. Let ns see how your au- 
 thority bears upon your position. 
 
 The first question is, what does your author mean by " mere 
 rebellion { " In this section of his chapter on different kinds 
 of wars, he is defining "civil wars," and distinguishing them 
 from "wars of insurrection and revolution" which he has de- 
 fined in a preceding section. He has already said : 
 
 " §5. Wars of insurrection, and of revolution, are generally those undertaken 
 to gain, or to regain, the liberty or independence of the party or state which un- 
 dertakes them, as was the case with the Americans in 1776, against England. * 
 * * A war of revolution is generally undertaken for the dismember- 
 
 ment of a state, by a separation of one of its parts, or for the overthrow and rad- 
 ical change of the government; while an insurrectionary war is sometimes waged 
 for a very different purpose. Both, however, have resjiect to the internal affairs 
 of the state rather than to its external relations. They are, therefore, in one 
 sense civil wars, and are governed by the same general rules which are applied 
 to that class of wars." Hallcck, p. 331. 
 
 In the light of these definitions there is no doubt into what 
 class Gen. Halleck puts the war in which he is at this moment 
 acting so conspicuous a part. Congress, in its manifesto, calls 
 this a civil war, and so it is in the popular use of words ; but 
 his definition makes it a "war of revolution," of which he says 
 that "each party in such cases is usually entitled to the rights 
 of war as against each other, and also with respect to neutrals." 
 This war then has far outgrown the dimensions of what he 
 means by a " mere rebellion." Think you that he regards him- 
 self as holding his high command in a war which is conducted 
 "without regard to the general rules of war which internation- 
 al jurisprudence establishes between sovereign states?" The 
 war with John Brown was conducted in that fashion. He and 
 his followers were not allowed to surrender themselves as pris- 
 oners of war. As soon as they were caught by the military 
 power of the United States, they were delivered over to the 
 civil power of Virginia to be tried without waiting for their 
 wounds to heal, and to be hanged without mercy. That was 
 w r hat Gen. Halleck means by a "mere rebellion." 
 
 Perhaps his use of the word rebellion in this instance is not 
 
1863.] Reply to Professor Parker. 235 
 
 perfectly accurate. I find however, in another passage to which 
 I shall presently refer, a clear statement of the distinction 
 which he makes between a mfcre rebellion, and a war of insur- 
 rection or revolution, or a civil war in the more limited sense. 
 Every civil war, in the largest sense, is called a rebellion by 
 the party which sustains the existing government. The chron- 
 ic civil war in China is a rebellion. The Avar which the En- 
 glish nation as represented in parliament waged against their 
 forsworn king, is commonly spoken of in English history as 
 "the great rebellion." The war in which the thirteen Anglo- 
 American colonies achieved their independence, was, in all 
 British opinion, a mere rebellion till its success had made it a 
 completed revolution. So the United States to-day are strug- 
 gling to vanquish a rebellion, but the conflict is nevertheless a 
 "civil war," a "war of insurrection and revolution," as defined 
 by your author, and therefore a war to be conducted in con- 
 formity with the recognized laws of war. 
 
 Admitting, however, for the sake of argument, that we are 
 dealing with a " mere rebellion," in Gen. Halleek's meaning ; 
 and that this is therefore one of the wars in which the rule 
 that " each party is entitled to the rights of war as against the 
 other " may be disregarded, — the next question is whether 
 your author means to say that, in a conflict with rebellion, 
 neither party is entitled to the rights of war as against the 
 other. Does the learned as well as gallant soldier, evidently 
 writing with a sagacious anticipation of events, intend to 
 limit, or to extend, the right of an established government to 
 defend itself against rebellion ? "When he says that " mere re- 
 bellions" are an exception to the rule which concedes belliger- 
 ent rights to both parties in a war of insurrection and revolu- 
 tion, does he mean that an established government has no 
 more right to wage war against a mere rebellion, than the 
 mere rebellion has to make war against the Government? 
 Does he mean what you would have me think he means, 
 namely, that, in a conflict with a mere rebellion, there are 
 some measures and methods of hostility, not inconsistent with 
 the rules and usages of civilized war, which the Government 
 may not employ, if necessary, to effect a speedy and complete 
 
236 Reply to Professor Parker. [April, 
 
 suppression of the rebellion ? The question answers itself on a 
 mere inspection of the passage in its connection with the 
 author's argument. What Gen/ Halleck means is obviously 
 that in such a conflict the Government has all the rights which 
 military power and military necessity can give, while the 
 rebels have none. Poor John Brown thought that if the 
 Government of the United States should assume to exercise 
 belligerent rights against him, he must needs have belligerent 
 rights against the Government. Was he not mistaken ? 
 
 If you had carefully read the entire chapter on the " differ- 
 ent kinds of wars," you could not have overlooked another 
 section in which your author makes a still more explicit state- 
 ment of his opinion on the point in question. It is the section 
 in which he incidentally explains what he means by a " mere 
 rebellion ;" and for that reason, as well as for its conclusive- 
 ness on the topic of belligerent rights, I transcribe it. 
 
 " § 25. A contest by force between different members of the same society or 
 state, has sometimes been called a mixed war. Grotius regards such a war as 
 public on the side of the established authorities, and private on the part of those 
 who resist such authorities. Such a contest, on the part of individuals against 
 the established Government, may be a mere insurrection or rebellion, and the acts 
 of such individual insurgents, or rebels, in resisting or opposing the authority of 
 the Government, may, as already stated, be punished according to the municipal 
 law which they have violated ; but where the contest assumes the character of a 
 public war, as defined and recognized by the law of nations, it is the general 
 usage for other states to concede to both parties the rights of war so far as re- 
 gards the law of blockades, of contraband, etc. It must be remembered, how- 
 ever, that every insurrection or rebellion is by no means a public war, and a state 
 which recognizes it as such, does so under the responsibilities which are imposed by 
 the laws of international comity. It should also be remarked that, in such cases, 
 belligerent rights may be superadded to those of sovereignty, that is, the contending 
 parties may exercise belligerent rights with regard to each other and to neutral 
 poivers, while, at the same time, the established government of the state may exercise 
 its rights of sovereignty in punishing by its municipal laws, individuals of the re- 
 volting party as rebels and traitors." pp. 344, 345. 
 
 Your second citation of authority in support of the position 
 that we cannot exercise the rights of a belligerent against the 
 so-called Confederates, without implying that we thereby re- 
 lease them from responsibility to the laws of the United 
 
1863.] Reply to Professor Parker. 237 
 
 States, — is from Wheaton. The entire paragraph which you 
 quote in part, is as follows : 
 
 " A contest by force between independent sovereign states is called a public 
 war. If it is declared in form, or duly commenced, it entitles botb the belliger- 
 ent parties to all the rights of war against each other. The voluntary or posi- 
 tive law of nations makes no distinction, in this respect, between a just and an 
 unjust war. A war, in form, or duly commenced, is to be considered, as to its 
 effects, as just on both sides. Whatever is permitted by the laws of war to one 
 of the belligerent parties, is equally permitted to the other." Wheaton. Ele- 
 ments of International Law, (Philad., 1840). pp. 342, 343. 
 
 If you had taken notice of the fact that the subject of 
 Wheaton's " Part Fourth," from which this quotation is made, 
 is the " International rights of states m their hostile relations," 
 and that in the dialect of international law, our country is one 
 state and not many, surely you could not have thought of 
 citing this passage as having any relation to the question 
 whether citizens of the United States, having made war upon 
 their country, and being responsible to the military power as 
 recognized belligerents, are therefore exempted from all re- 
 sponsibility to the civil power as traitors and criminals. I 
 cannot see that in this passage, or in any other, Wheaton 
 makes any allusion to that question. He does, indeed, refer, in 
 the next paragraph, to the definition given by Grotius, of a 
 civil war as "public on the side of the established government, 
 and private on the part of the people resisting its authority ;" — 
 the very definition by which the most uncompromising enemy 
 of the pretended right of secession would naturally describe 
 the nature of the civil war now raging in this country — a pub- 
 lic war on the side of the established Government, a private 
 war, like any filibustering expedition, on the part of the so- 
 called Confederates. " But," he adds, " the general usage of 
 nations regards such a war as entitling both the contending 
 parties to all the rights of war as against each other, and 
 even as respects neutral nations." What else is this than the 
 identical position which I assumed, and which you have under- 
 taken to controvert ? Your position that if the people of the 
 United States have all the rights of a belligerent against the 
 rebels and in the region occupied by the rebellion, they cannot 
 at the same time have those rights of sovereignty over the 
 
 VOL. XXII. 16 
 
238 Reply to Professor Parker. [April, 
 
 whole area of the Union which are the subject matter of the 
 war, — is a position which, so far as I can discover, Wheaton 
 seems never to have thought of. 
 
 Let me now illustrate, by a parallel case, my view of what 
 our rights are, as a belligerent power, in the territory now 
 occupied by our enemies. What if the pretended act or ordi- 
 nance of ^cession in each of the rebel states had been imme- 
 diately followed by a similar act or ordinance of accession to 
 the French empire? What if the whole ssheme from the first, 
 instead of being a conspiracy for the establishment of an inde- 
 pendent and rival confederacy within the acknowledged area 
 of the United States, had been a conspiracy to bring half of 
 our country under the scepter of a foreign potentate ? What 
 if the traitors who seized forts, arsenals, mint, and custom- 
 houses, in the name and for the use of the Confederate States 
 of America, had done that thing in the name and for the use 
 of Napoleon III.? What if the French tricolor were now fly- 
 ing wherever the flag of the rebellion is displayed upon our 
 soil? What if Jefferson Davis, instead of styling himself 
 " President of the Confederate States," were ruling at Rich- 
 mond, as the representative of the imperial power at Paris ? 
 In such a case the conflict would be, unquestionably, on both 
 sides, a public war, " a contest by force between independent 
 sovereign states:" and it would " entitle both the belligerent 
 parties to all the rights of war against each other." My posi- 
 tion is, that whatever our belligerent rights would be in such 
 a case, those are our belligerent rights to day. In such a case 
 the necessities of war would compel us, as the necessities of 
 war in the present case have compelled us, to recognize cap- 
 tured traitors, while the war lasts, as prisoners of war to be 
 exchanged or paroled instead of being indicted in the civil 
 courts and hanged for their treason. If, in such a case, the ex- 
 pulsion of the foreign flag and the foreign power, and the con- 
 sequent termination of the war, would be followed by the re- 
 establishment of the constituted civil authorities ; and if every 
 citizen who has " levied war against the United States," or 
 has "adhered to their enemies, giving them aid or comfort," 
 would thereupon find himself liable to an indictment for 
 
1863.] Reply to Professor Parker. 239 
 
 treason and to punishment by the civil power unless protected 
 by an act of amnesty; then the same state of things will 
 ensue upon the successful termination of this war. And if, in 
 the case supposed, our Government, as a belligerent power, 
 would have a right to use, within the territory occupied by 
 the enemy, all measures of hostility, not excepting a procla- 
 mation of freedom to the slaves and the raising of an army of 
 freedmen, if necessary to the speediest and most effectual ter- 
 mination of the war, — then, in the present case, our Govern- 
 ment, as a belligerent power, has the same right. 
 
 What, now, is the bearing of your authorities on my posi- 
 tion and on yours ? The quotations you make may serve to 
 throw a little learned dust into the eyes of unwary readers, 
 and they may help the logical juggle by which one thing is 
 adroitly shuffled into the place of another without awakening 
 any suspicion in credulous souls ; they may be available for 
 the purpose of making " them that are unlearned and un- 
 stable" believe that black is white, and the wrong the better 
 reason ; but, on a careful examination, it appears that your 
 authorities expressly testify to my position, and that concern- 
 ing yours they say nothing. I do not reject your authorities 
 as " law logic." Sometimes it happens that the " law logic" is 
 in the misapplication and misinterpretation of quotations from 
 authorities. It occurs to me as not improbable that in the 
 present instance you have been wronged by some clerk or pu- 
 pil employed to make the needful citations. There is nothing 
 disrespectful in such a supposition. Marshall, as I have heard, 
 having determined what the law ought to be in a given case, 
 was wont to depend on Story for the citations which were to 
 prove what the law was. So Webster is said to have devolved 
 upon his junior associates, in the trial of a case, the labor o 
 hunting for authorities. 
 
 One of your letters (the fourth) assails my statement that 
 " the territory held by the rebels must be recognized as hostile 
 territory to be conquered and reannexed ;." and that the work 
 which we have now in hand is " 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 
 
240 Reply to Professor Parker. [April, 
 
 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." I will not dispute with you about the sense in 
 which the territory in question "rightfully belongs" to the 
 people of the United States ; for, on that point, I do not see 
 that you have really raised any doubt, and my meaning, I am 
 sure, was sufficiently intelligible from the first. In whatever 
 sense the territory included within the boundaries of Massa- 
 chusetts or of Iowa belongs to the people of the United States, 
 in that sense the territory included within the boundaries of 
 Virginia or of Arkansas belongs of right to the people of the 
 United States ; and that is enough for the purpose of my argu- 
 ment. What you deny is, in your own words, "that any part 
 of this territory has been wrested from the people of the 
 United States." You say, 
 
 " I maintain that there never has been a time since the rebellion commenced 
 when the territory has not belonged to the United States in as full and ample a 
 manner at it did before that period ; that there has not been any time when the 
 jurisdiction of the United States, political and legal, has not been as ample as it 
 was before the first act of secession was passed, nor any time since when the laws 
 of the United States have not been in force throughout the territory, precisely as 
 they were prior to the insurrection ; although, by reason of a treasonable and 
 forcible opposition to their execution, the actual enforcement of them has been 
 obstructed and prevented." 
 
 Now in all this you strangely confound the very obvious dif- 
 ference between what is true in law and what is true in tact, 
 or, in other words, the difference between what ought to be, 
 and what is. Do you teach your pupils that if a client comes 
 for legal advice and aid in order to be put in possession of a 
 farm which rightfully belongs to him, but which is occupied 
 and held by another claimant, he is only to be advised that in- 
 asmuch as his title is perfect, he is already in possession of the 
 farm ? In such a case, do you hold that because your client is 
 of right the owner of the farm, he has no ground of action, 
 and cannot sue for an ejectment \ Is it worthy of your pro- 
 fessional eminence to build an argument upon such a quibble 
 as that the Constitution and laws of the Union are still "in 
 force" throughout the area of the rebellion, though there is 
 
1863.] Reply to Professor Parker. 241 
 
 no " actual enforcement " of them % They are in force, forsooth, 
 but they are not put in force ! If it comes to quibbles like. 
 that, please observe more exactly what I really said. Did I 
 say that there is any portion of our country where the Consti- 
 tution and laws are not in force? What I said was no more 
 than what you yourself say when you admit that throughout 
 those regions there is no actual enforcement of the laws of the 
 Union, — in other words, that "the Constitution and the laws 
 of the Union" are to be established "in regions over which, 
 at present, they have no more sway or force than they have in 
 Patagonia." 
 
 In other passages you say, by way of inference from the fact 
 that the sovereignty of the United States is limited by the re- 
 served rights of the several States. 
 
 "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 reannexatio?i — 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 ' con- 
 quest' and ' reannexation ' 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 reannexa- 
 tion, to accomplish something which could not be done by the mere suppression 
 of t lie rebellion, — that is to say, the emancipation of the slaves. * * 
 
 " The fact that conventions of people, in the several [seceding] states, have 
 adopted acts of secession, does not wrest the territory within those states from 
 the United States. The acts of secession are void, and the sovereignty, jurisdic- 
 tion, and authority of the United States remain as before." * * 
 
 " Do you not know that in thus asserting that the territory has been wrested 
 from the people of the United States, and must be regained by conquest, and that 
 the war must be waged for emancipation, you not only virtually admit that the 
 ordinances of secession had validity, but that you make war upon the resolve of 
 Congress, which I have cited above, [the manifesto of July, 1851], and commit a 
 kind of petit treason against the ' great proclamation ? ' " 
 
 I have made these extended quotations, partly for the sake 
 of saying to you, peremptorily, some things which I would not 
 say without putting before your eyes the evidence which 
 will justify me in saying them. 
 
 1. The inference which you make from my use of the words 
 
242 Reply to Professor Parker. [April, 
 
 "conquest" and "reannexed," namely, that I "mean something 
 more than the mere restoration of the authority of the United 
 States," is without warrant. Not only do I repudiate that in- 
 ference as one which was not in my thoughts, hut I deny your 
 right to make it. 
 
 2. When you allege that I " desire through conquest and re- 
 annexation to accomplish something which could not he done 
 by the mere suppression of the rebellion, that is to say, the 
 emancipation of. the slaves," — and when you affirm that this 
 "is apparent from the whole tenor of [my] Article," you not 
 only misconstrue the whole tenor of my Article, but you do it 
 with a violence, for which, I can discover no excuse. That I 
 desire the emancipation of the slaves is most true. Wherever 
 under God's heaven a human being is enslaved for no crime or 
 fault of his own, my sympathies are with him, and I pray for 
 his emancipation. If I did not desire the emancipation of the 
 millions of human beings in the United States who are held in 
 the lowest condition of bondage, robbed of their labor, sold 
 like cattle in the market, subject to every wrong which the in- 
 terest, the caprice, the fear, the suspicions, or the lust of an 
 owner can inflict, shut out by law and popular hate or fear 
 from all means and opportunities of acquiring knowledge, and 
 denied even the poor hope of something better for their child- 
 ren, I should be "a worm and no man." If I could believe 
 that you, born in New England, distinguished by gifts of na- 
 ture, enlightened by education, and trusted and honored by 
 your fellow citizens, do not desire the emancipation of the 
 slaves, I should feel myself dishonored by any correspondence 
 with you. There are those in New England and elsewhere in 
 the North, who do not desire the emancipation of the slaves, 
 but you will not acknowledge yourself one of them. You 
 know who they are, and in your dispassionate moments you 
 abhor them. They are the vilest and most unclean of knavish 
 politicians, and the most unthinking of their dupes — creatures 
 who wear the shape of men, but in whose gross and selfish 
 hearts there is no pulse of genuine sympathy with wronged 
 and suffering human nature — men, if we may call them so, 
 who would rather give up the Union to dissolution and betray 
 
1863.] Reply to Professor Parker. 243 
 
 our grand trust of constitutional self-government, than see the 
 slaves emancipated. But much as I, in common with yourself 
 and all honest men, desire the emancipation of the slaves, you 
 wrong me inexcusably when you charge me with desiring to 
 accomplish that end by any method of violence distinct from 
 and superadded to the suppression of the rebellion and the res- 
 toration of the authority of the United States in the territory 
 held by the rebel power. The whole tenor of my Article de- 
 monstrates to any reader that in my view the proclamation can 
 be justified not for one moment on the ground that the eman- 
 cipation of the slaves, and the full abolition of slavery, are de- 
 sirable in themselves, and devoutly longed for by all generous 
 souls ; but only on the ground that the offer of freedom to the 
 slaves held under the power of the pretended governments in 
 the territory occupied by rebels, is a rightful measure of hos- 
 tility in this war, and necessary for the suppression of the re- 
 bellion, and for restoring the legitimate authority of the United 
 States. 
 
 3. When you allege that my views are at variance with the 
 resolve of Congress, setting forth the causes and purposes of 
 the war, and with the proclamation itself, you allege that for 
 which you have no shadow of a warrant. If anything in my 
 Article is intelligible, it is that the offer of freedom to the slaves 
 now held in slavery by the declared and implacable enemies of 
 the United States is to be regarded not as the object or purpose 
 of the war, but only as a means to the object and purpose an- 
 nounced by Congress. Did I not expressly consider and refute 
 "the complaint that the proclamation makes no profession of 
 hostility to slavery, but emancipates the slaves only because 
 emancipation is a necessary measure of hostility against the 
 rebels" ? What was the argument by w T hich I answered that 
 complaint ? " The President has no right to emancipate any 
 slave on the ground that slavery is wrong, but he has a right 
 as commander-in-chief of the army and navy to proclaim the 
 emancipation of slaves on the ground that their emancipation 
 is necessary as a means of ending the rebellion." 
 
 4. Your argument that the territory occupied by the rebel for- 
 ces has not been wrested from the people of the United States, 
 
244 Reply to Professor Parker. [April, 
 
 and must not be regarded as hostile territory to be conquered and 
 reannexed, because if we so regard it we admit the validity of 
 the pretended ordinances of secession, is of the same sort with 
 your argument, already noticed, that because the laws of the 
 United States ought to be respected and obeyed in those regions, 
 it is wrong to say that they have no sway or force there. That 
 a great extent of territory, wider than some of the greatest em- 
 pires of the old world, has been wrested from the people of the 
 United States to whom it righfully belongs, is a notorious mat- 
 ter of fact which you undertake to argue out of existence by 
 the consideration that it is against the law. As if, when a 
 man has been shot down in the street before my eyes, and I see 
 him laid stark and stiff, I must not believe the fact, because 
 the assassin had no right to kill him. Could any murderer be 
 convicted of his crime, if the fact of the homicide could not 
 be asserted without implying an admission that the homicide 
 was lawful ? The ordinances of secession were unconstitution- 
 al, invalid, null and void ah initio ; but the stubborn fact hap- 
 pens to be that the territory in question is held and occupied by 
 the belligerent enemies of the United States, and must be re- 
 covered by feats of arms, (that is, by conquest) before the fact 
 and the law will be at one. 
 
 All this remarkable argumentation of yours is employed to 
 refute my position that the territory which the belligerent en- 
 emies of the United States hold by military strength, is to be 
 regarded as hostile territory. But, as it happens, you cite no 
 authority in confirmation of your argument. What does Gen. 
 Halleck say on this point \ 
 
 " Any place, port, town, fortress, or section of country occupied by the en- 
 emy, is, for most purposes, regarded in law as hostile territory so long as such 
 occupation is continued. If the place so occupied were previously neutral, or a 
 part of our own territory, it is no longer regarded as such, for it would be absurd 
 to suppose that persons who are hostile themselves, or who are under a hostile 
 authority, are to exercise the same civil rights as neutrals or citizens in time of 
 peace. The relations of the government to a place or territory so occupied or 
 situated, are of a military character, and consequently are not regulated by the 
 civil laws which are made for the condition of peace. This change of relation, 
 or rule of government, does not result from anything in the particular constitu- 
 tion or laws, but from the fact of the existence of war, and the hostile occupation 
 of the place." Halleck, pp. 371, 372. 
 
1863.] Reply to Professor Parker. 245 
 
 Considering your professional deference to authorities, and 
 that Gen. Halleck is an authority referred to by yourself, I do 
 not see that anything more need be said, just now, on this part 
 of the subject. The conclusion seems to be that whatever the 
 President, as wielding the military power of the United States, 
 might do in Florida, if that State (as we call it) had never 
 ceased to be a dependency of the Spanish crown, and if we 
 were at war with Spain, just that is what he may do in Florida 
 now, and just that is what he may do throughout the territory 
 held by the rebels. Every State or portion of a State held by 
 the enemies of the United States is hostile territory, and is to 
 be recovered from those enemies by the use of every hostile 
 measure and expedient, not contrary to the laws of war, that 
 may be found needful to the end in view. 
 
 Do you hold that this particular expedient — a proclamation 
 offering liberty to all persons held in slavery by the enemy — 
 is contrary to the recognized laws of war % I will not affirm 
 that you do, and yet I dare not say, on the other hand, that 
 you frankly acknowledge the legitimacy of this measure in 
 war. I cannot deem it superfluous to touch upon the question 
 whether, admitting that, in the present conflict, the United 
 States are invested with full belligerent rights against the re- 
 bellion, and admitting that the territory held by the rebels is, 
 for the time being, hostile territory, — a proclaimed offer of 
 freedom to all persons held in slavery by the rebel power with- 
 in that territory, is contrary to the law of nations and the laws 
 of war. 
 
 The first thing to be remembered, in dealing with this ques- 
 tion, is, that it is not a question about the ownership of real 
 estate or of chattels, but a question about the rights and duties 
 of persons. As in the view of the Constitution, so in the view 
 of international law, slaves are persons and not things. Before 
 the law of nature, the slave and his master are equal. The 
 difference between them, in respect to rights, is a factitious 
 difference created by .arbitrary power, and not to be recognized 
 save within the jurisdiction of the arbitrary power by which it 
 was created. In the presence of war, the slave of an enemy 
 has all the rights of an enemy if he takes his master's side, 
 
246 Peply to Professor Parker. [April, 
 
 and you have the same rights against him that you have against 
 his master. You have the same right to shoot him that you 
 have to shoot his master in the same circumstances; you have 
 the same right to take him prisoner that you have to take his 
 master ; and when he is your prisoner he has the same right 
 with his master to honorable treatment. On the same princi- 
 ple, if you can induce him to take your side, he is entitled to 
 all the rights of a friend ; and if there is any offer or pledge, 
 not inconsistent with humanity and natural justice, by which 
 you can induce him to take your side, you have a right to em- 
 ploy that inducement. Had not so many of our politicians — 
 and, I am sorry to add, so many of our lawyers — fallen into a 
 perverse habit of assuming that slaves are always to be consid- 
 ered as property and not as persons, these propositions would 
 seem too much like truisms to need any proof from argument 
 or from authority. 
 
 The millions then of human beings who are now held in 
 slavery under the pretended authority of the usurping govern- 
 ments within the area of the rebellion— what are they ? Not 
 so many millions of property in the hands of private owners, 
 but so many millions of a wronged and subject population who 
 are the natural enemies of our enemies, and who therefore 
 ought to be our friends. The question is whether the Presi- 
 dent, wielding the military power of the nation, may rightfully, 
 under the laws of war, invite them to become our friends, and 
 may strengthen the invitation with such offers of protection 
 and of liberty as shall secure their confidence. If we were at 
 war with the Austrian empire, and our armies were marching 
 upon Vienna, might we rightfully call on the oppressed and 
 discontented populations of that empire — Poles, Servians, 
 Magyars — to become our friends, proclaiming ourselves their 
 liberators, and pledging the honor of the United States for 
 their protection % I will not say that common sense can an- 
 swer the cpiestion. Let me refer you to a most respectable au- 
 thority. If you will turn to Gen. HallecVs chapter on " Means 
 and Instruments of War," you will find him saying, 
 
 " § 29. It sometimes happens in war that intestine divisions prevail among the 
 enemy's forces, and that one party may favor the objects for which we are con- 
 
1863.] Reply to Professor Parker. 247 
 
 tending ; in such cases we may, without scruple, hold correspondence with the 
 one faction, and avail ourselves of its assistance to overthrow the other party. 
 We thus promote our own interest and gain the objects of the war, without se- 
 ducing any one to crime, or even becoming the partakers of treachery. The right 
 to side with a faction in war is broadly different from the pretended right of for- 
 cible intervention in time of peace. A third party may side with the one or the 
 other of the conflicting forces, just as he might in a war between separate and 
 independent nations. If he have just cause of war against one of the parties, he 
 may avail himself of the assistance of the other." p. 410. 
 
 If we may thus take advantage of divisions "among the 
 enemy's forces," and may even invite his discontented regi- 
 ments to come over and fight on our side, pledging ourselves 
 to make common cause with them against the common enemy ; 
 how much more may we take a like advantage of divisions 
 among the population under the power of that ememy, inviting 
 the oppressed to receive us as their liberators, and guaranteeing 
 to them whatever relief from their burdens may be necessary 
 to secure their hearty cooperation and their lasting fidelity. 
 
 You will not argue that in the case of our enslaved popula- 
 tion there is a peculiarity which should restrain us from inviting 
 them, by offers of freedom and protection, to become our friends 
 in a war with the power that oppresses them. On this point 
 the authority of Jefferson is quoted by Mr. "Whiting. I take 
 the liberty of repeating the quotation. Writing about the 
 military operations of Lord Cornwallis in Virginia, Jefferson 
 said, 
 
 " Having first taken what corn he wanted, he used, as was to be expected, all 
 my stock of cattle, sheep and hogs for the sustenance of his army, and carried 
 off all the horses capable of service. He carried off also about thirty slaves. 
 Had this been to give them freedom, he would have done right." 
 
 I have happened to light on another authority from the Vir- 
 ginia of the Revolution, when the Old Dominion had great men. 
 George Mason, the grandfather (I believe) of the rebel emis- 
 sary now at London, said in the Convention which formed our 
 Constitution, 
 
 " The evil of having slaves was experienced during the late war. Had slaves 
 been treated as they might have been by the enemy, they would have proved dan- 
 gerous instruments in their hands. But their folly dealt by the slaves as it did 
 by the Tories." 
 
248 Reply to Professor Parker. [April, 
 
 But this citation of authorities is hardly necessary. The 
 great testimony of John Quincy Adams concerning the bellig- 
 erent right of proclaiming liberty to the slaves of an enemy is 
 enough, and it is well known not only to those who remember 
 the two several occasions on which it was uttered, and who 
 have never forgotten what light it threw on the destiny of sla- 
 very in this country, but also to thousands of younger men. 
 It was my purpose to transcribe his testimony at large, but the 
 necessary limits of this 1 etter. already too long, forbid me to 
 do what I intended. Large extracts from the two speeches — 
 six years apart — in which that most learned and accomplished 
 statesman demonstrated, to the conviction of all thinking men 
 in those days, what the powers are, in relation to slaves and sla- 
 very, with which an invasion and occupation of the slaveholding 
 country by enemies of the United States must needs invest the 
 national government, — are given by Mr. "Whiting, pp. 75-82. 
 The speeches are found entire in the Congressional Globe, 1 
 Sess. XXIV Cong. App. pp. 433-435 ; and 2 Sess. XXYII 
 Cong. App. pp. 420-429. You cannot forget, nor can you con- 
 tradict, though you are careful not to quote, the terrible ex- 
 pression which the sagacious and eloquent old man thundered 
 into the astonished ears of the House of Representatives in 
 183G. " From the instant that your slaveholding states become 
 the theater of a tear, civil, servile, or foreign war, from that 
 instant the war powers of Congress extend to interference with 
 the institution of slavery in every way in which it can be in- 
 terfered with, from a claim of indemnity for slaves taken or 
 destroyed, to the cession of states burthened with slavery to a 
 foreign powder." You have quoted — and let me assure you 
 that the people have not forgotten and will never forget, his 
 reiterated declaration in 1842, (never contradicted till now), 
 "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." 
 I need not recite the historic instances which he adduced in 
 confirmation of that statement. Let it suffice to write down 
 here these emphatic words sanctioned by the most authoritative 
 name in the history of our country, — " I lay this down as the 
 
1863.] Reply to Professor Parker. 249 
 
 law of nations. I say that military authority takes, for the 
 time, the place of all municipal institutions, and slavery among 
 the rest ; and that under that state of things, so far from its being 
 true that the States where slavery exists have the exclusive 
 management of the subject, not only the President of the 
 United States, but the commander of the army, has power to 
 order the universal emancipation of slaves." 
 
 In strict conformity with the law of nations, considerately 
 and solemnly announced by John Quincy Adams, the Presi- 
 dent has "ordered the universal emancipation of slaves" in 
 all the territory of the United States now held and occupied 
 by a hostile military power. With a careful deference to state 
 rights he has done far less than this authority assures us he 
 might have done. Wherever there is any shadow or pretense 
 of a state government acknowledging the Constitution as the 
 supreme law of the land— wherever there is even a provisional 
 government not at war with the United States, he has refused 
 to interfere with the institution of slavery. But where there 
 was, on the first of January, no government whatever, recognized 
 by the United States, and therefore no government by which 
 any portion of the population can be divested, in law, of any 
 human right, there he has ordered the universal emancipation 
 of slaves. Had he a right to do so in the exercise of the pow- 
 ers with which he is constitutionally invested in time of war? 
 You have shown your discretion in argument by avoiding a 
 direct conflict with the authority of John Quincy Adams on 
 this point, It suited your purpose better to assail the Procla- 
 mation with carping questions and criticisms about its effect 
 now and after the war shall have ended. 
 
 For example, you profess to be sorely puzzled " respecting 
 what it proposes and is intended to accomplish." You in- 
 quire whether the President intends merely to threaten the 
 rebels, and you make a somewhat unfortunate attempt to ridi- 
 cule the Proclamation in that view. After saying that your 
 dog, if you had one, might bark at the moon, you proceed as 
 follows : 
 
 "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 do- 
 minions the Sepoys shall be emancipated from the oppression to which they are 
 
250 Reply to Professor Parker. [April, 
 
 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 no- 
 tification 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 oppres- 
 sion ?" 
 
 The Sepoys ! Perhaps it may relieve your sympathies to be 
 informed that the Sepoys are neither slaves nor otherwise op- 
 pressed. They are nothing else than soldiers, of a dark com- 
 plexion, voluntarily enlisted in her Majesty's service for the 
 support of her imperial government over their native country, 
 wearing her uniform, and regularly paid with her money. 
 Whoever else may be oppressed in her Majesty's Indian em- 
 pire, the Sepoys are not oppressed. Their wild and atrocious 
 mutiny, a few years ago, was almost as inexcusable and in- 
 sane as the secession of South Carolina. Allow me to suggest 
 that a lawyer whose studies have been so exclusively profes- 
 sional that he does not know the meaning of the word 
 Sepoy, may be justly eminent in his profession — may be what 
 Bartholine Saddletree would call " a elarissimus Ictus" but 
 he has little occasion to crow over the ignorance of clergymen 
 in matters not pertaining directly to their profession. 
 
 Let me show you what your supposed case should have been, 
 if you desired to make it in any degree analogous to the case 
 in hand. If we were engaged in a desperate war with Great 
 Britain, if India were considered to be the most vulnerable por- 
 tion of the British empire, if we had an immense armament in 
 the Pacific ready to be precipitated upon the enemy at his 
 weakest point, and if it, were known that a blow at India would 
 enlist the sympathies of all Europe on our side, then the Pres- 
 ident might proclaim that unless peace should be restored in 
 ninety days he would carry the war into India, and recognize 
 the freedom and independence of the subjugated races there. 
 Can you understand what would be the intent and bearing 
 of such a proclamation ? 
 
 You affect to inquire whether the Proclamation is to be re- 
 garded " as a measure of punishment ; — as a confiscation of 
 slaves for the crime of rebellion or treason?" Certainly you 
 are at liberty to call it " a measure of punishment," if you 
 please, though it is not punishment in the sense of the courts 
 
1863.] Reply to Professor Parker. 251 
 
 of law. It is punishment of the rebellion in the same sense 
 in which the blockade is punishment — in the same sense in 
 which the turning of the Mississippi from its channel, and the 
 deluging of a territory larger and richer than many an old- 
 world principality, are a punishment. It is a measure of hos- 
 tility against the implacable enemies of the United States, — 
 who have established themselves upon our soil by military vio- 
 lence, and who are at this moment occupying a large portion 
 of our territory, — a measure designed to weaken them, to dis- 
 tress them, to subdue them, and to expel them forever from our 
 country. 
 
 The immediate effect and bearing of the proclamation 
 as a measure of hostility seem to me quite intelligible. 
 (1.) Wherever our military power shall be established within 
 the area of the rebellion as it was defined on the first of Janu- 
 ary last, the freedom of every inhabitant, without distinction, 
 is to be immediately recognized by all military and naval offi- 
 cers and by all persons under their command or control. 
 (2.) "Wherever the rebel power which now holds the slaves in 
 subjection shall be expelled by victory, the provisional milita- 
 ry government which must needs come in its place will recog- 
 nize no man as the owner of another, and will admit into its 
 administration of justice no violation of the principle that the 
 laborer is worthy of his hire. (3.) In all capitulations for the sur- 
 render of towns and districts heretofore held by the enemy, what- 
 ever the stipulations may be in behalf of private property, there 
 will be no stipulation by which any man will be recognized as 
 the property of another, or which shall compromise the liberty 
 of those wdiom the proclamation pronounces free. (4.) Through 
 all the waning fortunes of the rebellion, the holders of slaves 
 and the non-slaveholding whites, throughout the rebel states, 
 will understand that the military power of the Union has re- 
 cognized their slaves as men, wdiose wrongs are to be consider- 
 ed and whose inalienable right to liberty is to be secured in 
 the final adjustment of the conflict. (5.) What is of more con. 
 sequence than all the rest is that the slaves and the free black 
 peoj>le who heretofore have had no interest in the restoration 
 of the Union, have now the greatest possible interest in our 
 success. For example, at the commencement of the war, there 
 
252 Reply to Professor Parker. [April, 
 
 was, in the State of South Carolina, an aggregate population of 
 703,70S, of whom only 291,388 were white in law. The re- 
 maining 412,3i!0 (including 9,914 free blacks or people of color) 
 had indeed a contingent and conjectural interest in the con- 
 flict, for their instincts taught them that God might have sent 
 in that awful whirlwind the angel of their deliverance. They 
 had, therefore, an interest in the conflict, but they had no in- 
 terest in the restoration of the Union. Nay, their interest was 
 really adverse to such victories on our part as would have 
 crushed the rebellion in its earlier stages. They could under- 
 stand (what you recognize as an inevitable incident of the war) 
 that, during the continuance of hostilities, as many of them as 
 might come within our lines, though liable to indignity and 
 cruelty from a certain class of soldiers and officers, would prob- 
 ably not be returned to our enemies, and would perhaps in 
 some way acquire their freedom. But to them our early and 
 complete success would be (as you think that constitutionally 
 and legally it ought still to be) the closing of that door of hope. 
 Here then is the force and bearing of the proclamation as a 
 measure of hostility against the rebellion. It gives to the more 
 than four hundred thousand slaves and free people of color, in 
 South Carolina, a far greater interest in the suppression of the 
 rebellion and the restoration of the national authority, than the 
 less than three hundred thousand white people can possibly 
 have in any other result. Its bearing is the same in other 
 States. 
 
 It seems to me that this very simple view of w 7 hat the proc- 
 lamation is in its present effect and bearing, as a measure for 
 the conquest of the rebellion and the restoration of the Union, 
 refutes the entire argument in your sixth letter, which has 
 had the honor of being circulated as a tract under the patron- 
 age, as I suppose, of the Delmonico Society for the diffusion 
 of sound political knowledge. Surely if the proclamation has 
 an obvious and most important relation to the progress and the 
 early termination of the w r ar — if it has an effect not only 
 within our military lines but far in advance of our armies — if 
 it facilitates all our hostile operations by giving us some 
 millions of most interested friends in the territory held by our 
 enemies — the entire argument which you build on the assump- 
 
1863.] Reply to Professor Parker. 253 
 
 tion that the proclamation is to take effect only after the close 
 of the war, must fall to the ground. 
 
 As to what will be after the war is ended, and particularly 
 how the legal status of those who have been slaves is to be ad- 
 justed without infringing the reserved rights of the States 
 under the Constitution, allow me to say that I think you need 
 not be troubled. The end is not yet ; and this is eminently one 
 of the cases in which it is wise to " take no thought for the 
 morrow," and in which " the morrow will take thought for 
 the things of itself." Many things will have come to pass be- 
 fore the rebellion will have been finally disposed of, and the 
 territory it has ravaged be restored to the Union and sub- 
 jected to the normal and peaceful administration of govern- 
 ment. You see what has happened in "West Virginia, where 
 the people, finding themselves emancipated by war from 
 the domination of the slaveholding interest, have freely de- 
 creed, in their recovered sovereignty, the abolition of slavery. 
 Just that thing you may be sure will happen elsewhere in the 
 process of reestablishing the Union. For example, when the 
 rebellion shall have been extinguished in Virginia, and a loyal 
 convention of delegates from the people shall sit in the capitol 
 at Richmond to reorganize the State after so long an interreg- 
 num, think you that Letcher, and Wise, and Mason, and others 
 like them, will have seats in that convention ? Not at all ! 
 Before such a convention can be elected, the loyal people in 
 Virginia will have accepted the emancipation of the slaves and 
 the final abolition of slavery as inevitable facts ; and the 
 whole race of aristocratic conspirators against liberty, who 
 have brought such shame and suffering upon that once illustri- 
 ous State, will have become forever infamous there. Please to 
 recollect that there is already a Governor of Virginia who is 
 not Letcher, and who is recognized in that character not only 
 by the President, but also by the Senate and the House of 
 Representatives. "When the Government de jure, now repre- 
 sented by Governor Pierpont at Alexandria, or some more 
 obscure locality, shall have become the government de facto at 
 Richmond, there will be no quarreling with the stubborn fact 
 that the emancipation of the slaves has been an incidental yet 
 
 VOL. XXII. 17 
 
254 Reply to Professor Parker. [April, 
 
 inevitable and irreversible result of the war. In that regen- 
 erated Virginia, baptized and purified with fire, the reserved 
 right of the State to determine the legal condition and rela- 
 tions of its inhabitants will not be employed in the insane 
 attempt to obtain a perpetual entailment of poverty and bar- 
 barism by reenslaving an emancipated peasantry. 
 
 Think what must be the process of restoring the Constitu- 
 tion, and reestablishing the constitutionally guaranteed form of 
 government, and the constitutionally limited sovereignty of the 
 State, in South Carolina. First, there must be a provisional 
 military government, under which no question will be raised 
 whether the military emancipation of the slaves, as proclaimed 
 on the first of January, 1863, was valid. Regiments of freed- 
 men, under a rigid military discipline, will garrison the forts, 
 will guard the custom-houses, will protect the cities against in- 
 surrection, and will ensure public order. A new population, 
 with new capital, new ideas and habits, will begin to take the 
 place of rebels, banished or emigrating in disgust. Slowly 
 and quietly, thought, speech, industry, enterprise, domestic 
 arrangements, and all the relations of society, will begin to be 
 adjusted to the new basis. Instead of the relation of owner 
 and slave there will spring up the relations of landlord and 
 peasant, of employer and employed, of master and free servant. 
 If some of the freedmen become disorderly and fall into habits 
 of idleness and vagrancy, the provisional government will deal 
 with them and make them know that their subsistence is to be 
 earned by their labor. While these processes of adjustment 
 are going on, every month and every week will diminish the 
 possibility of even an attempt to reestablish slavery. And 
 whenever the time shall have come for a convention to recon- 
 stitute the state government, the liberty of those who were once 
 slaves will have become an immovable fact to which the policy 
 of the restored and reestablished State will be freely adjusted, 
 even though the adjustment be attended with regrets for the 
 system that has perished. The process of reenslaving, after 
 the return of peace, a population that has been emancipated 
 by war, has not often been attempted ; nor am I aware that 
 its success in any instance has been such as to encourage a new 
 experiment in that direction. The prospect of that "good 
 time coming" which you seem to anticipate so cheerfully, when 
 
1863.] Reply to Professor Parker. 255 
 
 the rebel states, restored to their places in the Union, shall en- 
 ter on the enterprise of reducing to slavery again the millions 
 emancipated by the military power of the nation, does not 
 impress me as particularly brilliant. 
 
 I do not forget the possibility that another President may repu- 
 diate the pledges which President Lincoln has given. I do not 
 forget the possibility that a future Congress may depart from 
 the policy sanctioned by the one which has just expired. Nor 
 do I forget the possibility that the question whether the people 
 to whom the proclamation offers freedom ai'e legally free, may be 
 brought to an issue in the Courts of law. Doubtless an unpre- 
 cedented crop of law suits will be among the consequences of 
 this war, and you may reasonably expect that some litigated 
 case may turn upon that question. If such a case were to be 
 decided by the same judges who falsified law and history for 
 the sake of denying justice to Dred Scott, it would probably 
 be decided to your satisfaction. But the Supreme Court of 
 the United States is not now, and will never again be, what it 
 was when Judge Curtis threw off his judicial robe and resigned 
 his seat in disgust. Certain preliminaries too must be trans- 
 acted, before the question of dooming to slavery the millions to 
 whom the proclamation offers liberty can be judicially decided. 
 The war must be ended. The republican form of government 
 guaranteed by the Constitution must be established in the 
 States whose government under the Constitution has been 
 abolished for the time by the enemy. These preliminaries 
 will not be completed without taking time. After that lapse 
 of time, the Supreme Court will be, yet more than now, un- 
 like what it was when, to mark the inauguration of President 
 Buchanan as an epoch in our history, the Dred Scott decision, 
 having been prepared for the occasion, startled the country 
 like an earthquake. 
 
 I cannot think that you are really expecting to see the legal 
 invalidity of the proclamation established by any such method. 
 Does not your argument assume rather that the war is to be 
 ended by negotiation and compromise, and that the reenslav- 
 ing of the emancipated millions is to be part of the bargain? 
 I have never intimated — nor do I now imply — that you are one 
 of those traitors at heart who are laboring to save the rebellion 
 
256 Reply to Professor ParTcer. [April, 
 
 from its fate by compelling the Government to negotiate for a 
 peace. But, as I have already said more than once, there are 
 such men. Do you ask me who they are % They are the men 
 who in their conventions resolve that the Constitution has been 
 violated by the admission of West Virginia as a State, because, 
 forsooth, though the loyal legislature of Virginia which the 
 Government has recognized in every way, and which has sent 
 two senators into Congress, gave consent to the division of their 
 State, John Letcher and the parliament of traitors over whom 
 he presides at Richmond have not consented. I do not charge 
 that you are one of them, for you seem to hold that the loyal 
 citizens within the boundaries of a rebel State are the State, 
 and that though they be no more than two or three in number, 
 their rights and powers, as a State under the Constitution, are 
 never in abeyance. Yet your argument seems to expect that 
 the war is to terminate in some other way than by the conquest 
 and complete subjugation of the rebels. If we are to have a 
 Congress which will stop the supplies, which will compel the 
 President to negotiate for a suspension of hostilities till the 
 rebels can take breath, which will permit the rebel power to be 
 represented by delegates in a convention called for the purpose 
 of revising the Constitution and reconstructing the Union, I 
 can suppose that the proclamation will pass for nothing, and 
 that your questions about its effect on the legal status of the 
 slaves now actually held by the so-called Confederates will be 
 considered unanswerable. 
 
 You take it as a personal wrong to yourself when I say, of 
 the men who are thus endeavoring to obtain peace by negotia- 
 tion and compromise between the United States and " the 
 Confederates," that they " expect nothing else, and intend 
 nothing else, than some concession to the rebels which shall 
 either divide the Union or subvert the Constitution." I have 
 disavowed, more than once, any intention of putting that 
 imputation upon you. But let me, in closing this letter, com- 
 mend to your serious attention the dire alternative to which 
 you and I, and all our fellow-citizens of the United States, are 
 brought. E'*her this great and persistent rebellion must be 
 crushed, con ■ ai ".jiy and finally, by war ; or w T e must make a 
 compromise with it, and take such terms of peace as we can 
 
1863.] Reply to Professor Parker. 257 
 
 get. The question comes to every citizen — and let me say, re- ' 
 spectfully, it comes to you, Which side of this alternative do 
 you take ? To end the war by negotiation and compromise is 
 to despair of the republic. It is to concede the principle that 
 a party, or a combination of interests, which cannot achieve its 
 wishes by votes, may resort to arms. It is to abandon the 
 primary idea of our national self-government. Peace by such 
 a method is the ruin of the republic founded by our fathers. 
 Are you for such a peace % If you are the man I suppose you 
 to be, } t ou abhor the thought. 
 
 The other side, then, of the alternative, is your position. 
 You are for crushing this rebellion, completely and forever, by 
 prosecuting to the end the war which it has inaugurated. 
 But let me say that it becomes you, as a man of practical 
 sense, to understand that this war cannot be prosecuted to a 
 successful result by any half-measures of hostility. Half- 
 measures in war are cruelty as well as imbecility. They are 
 treacherous to the cause in which they are employed. I have 
 lately heard a story of a good old woman in the revolutionary 
 war, whose son was drafted for a soldier, and who charged 
 him, as she buckled on his knapsack, " Now, Johnny, do you 
 take care that you don't exasperate the enemy." Let us be 
 thankful that our old women in these days, with the excep- 
 tion, perhaps, of some whose garments are made by tailors 
 and not by mantua-makers, have better sense than that. 
 "Within the last two years, we have learned — all of us — that if 
 we would bring this war to an early and prosperous close, if 
 we would save and perpetuate our republic, with all those 
 interests of universal humanity and of the kingdom of God 
 amono; men which are involved in the well-bein<r of our 
 nation, it must be war in earnest, and must use every instru- 
 ment and method of hostility not forbidden by the rules of 
 civilized warfare. It is too late in the day for Johnny, who- 
 ever he may be, to come from his mother with the sage counsel 
 that this or that expedient of lawful war must not be employed 
 for fear of exasperating the enemy. 
 
 You have been kind enough to bestow upon v*s much of the 
 wisdom and learning acquired in your profess ! Though I 
 can make, from my poverty, no adequate return of professional 
 
258 Reply to Professor' Parker. [April, 
 
 lore, I may say that my studies, which are in kind the studies 
 proper to every Christian, have accustomed me to think of 
 this national agony as related to interests that transcend the 
 sphere of jurisprudence. That the hideous injustice which has 
 been heretofore the basis of society in so many of our States, 
 should stand forever, was impossible ; because there is a God 
 whose providence governs the world in the interest of right- 
 eousness. Had a peaceful reformation been permitted — had 
 the free thought and speech, the free press, and the free self- 
 government of the nation been permitted to grapple with the 
 local wrong — that wrong might have yielded to the gradual and 
 peaceful force of moral influences. But no such reformation 
 was permitted. Year by year the stupendous iniquity, defy- 
 ing the moral sense of the world, and reeking to heaven, has 
 grown more insolent, more rapacious, more atheistic. Mean- 
 while the mysterious forces which God lias incorporated with 
 the being of human society, and of which in their action and 
 reaction all human history is the record, have been slowly 
 working ; and now we see the beginning of the end. The great 
 day of God's wrath against that wickedness has come. In his 
 righteous providence the system of organized wrong which 
 those States have permitted to rule over them, has wrought 
 out a natural vengeance on them and on itself. It has involv- 
 ed them in the miseries of a war which never can end till the 
 iniquity itself-has perished. In that war we are simply defend- 
 ing ourselves, our laws, our national unity, our Constitution, 
 our glorious heritage ; but we cannot defend ourselves, we can 
 not leave this goodly heritage to our children, without doing 
 God's work of vengeance. The vengeance is not ours but his. 
 We have assumed no right of intervention in the long-pending 
 issue between the oppressors and the oppressed, but God has 
 shut us up to the necessity of doing his work. If we quit 
 ourselves like men in the great agony of this crisis — if we do, 
 in all fidelity and fearlessness, our own work of self-defense — if 
 we do not basely betray our country to its enemies — the slaves 
 cannot but be emancipated. 
 
 Respectfullv, your obedient servant, 
 
 LEONABD BACON. 
 
 New Haven, Conn., March, 1S63. 
 
 I R n 'DK 
 
LIBRARY OF CONGRESS 
 
LIBRARY OF CONGRESS 
 
 012 028 314 5 
 
 Hollinger Corp. 
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