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 A LETTER 
 
 Hon benjamin ]{. CURTIS, 
 
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 IX REVIEW OF HIS RECENTLY PUBLISHED PAMPHLET 
 
 EMANCIPATION PROCLAMATION 
 
 OF THE PRESIDEXT. 
 
 By CHARLE§ P. KIRKI^AXD, 
 
 OF NEW YORK. 
 
 NEW YORK : 
 
 LATIMER BROS. A "SEYMOUR, LAW STATIONERS, 21 NASSAU ST. 
 
 1862. 
 
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 A LETTER 
 
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 Hon, benjamin R. CURTIS, ^ ^/ 
 
 LATE JUDGE OF THE 
 
 
 mt i)mt\ 0l tft^ mwiUi SUiUy 
 
 IN KEVIEW OF HIS RECENTLY rUBLISlIED PAMPHLET 
 
 EMANCIPATION PROCLAMATION 
 
 OF THE PRESIIDENT: 
 
 By CHARLES P. KIRKI.AWD 
 
 jI 
 
 OF NEW YORK. 
 
 NEW YORK : 
 
 LATIMER BROS. <fc SEYMOUR, LAW STATIONERS, 21 NASSAU ST. 
 
 1862. 
 

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 To the IlonomUe Benjamin R. Curtis, late Associate Justice of 
 the Supreme Court of the United States. 
 
 I propose, respectfully, but with perfect frankness, to review 
 your recently published pamphlet on the subject of tlie Presi- 
 dent's "Emancipation Proclamation" of September 22d, 186'i. 
 
 This would have been done at an earlier day, but it is only 
 very recently that I first saw the pamphlet. 
 
 It is to be regretted that, regarding — as you profess to do — 
 this proclamation and that of the 24th of the same month, as 
 fraught with peril to your countrymen, you did not treat them 
 separately. They differ radically and essentially in subject and 
 in intent. The one is limited in its application to the rebel 
 States, the other applies equally there and here. The one in- 
 volves ultimate results and consequences of the most important 
 and enduring character ; the other is, in its very nature, tem- 
 porary. The one gives rise to considerations of a kind wholly 
 different from, and irrelevant to, the other ; yet your pamphlet 
 so confuses them together, that it is quite difficult, if not impos- 
 sible, to discover what, in your view, is the distinguishing fatal 
 error of each. Justice to the subject, which you declare to be 
 of such momentous import ; justice to the Head of this great 
 nation, whose acts you arraign as bordering on, if not actually 
 amounting to, the c7-ime of usurpation ; justice to the elevated 
 position you so recently occupied, required that you should at 
 least have pointed out separately, distinctly, and in the most 
 lucid manner, tho grounds on which you base a charge of such 
 magnitude. Instead of that, we have here (to use a legal term 
 with which you are familiar) a complete " hotch-potch." These 
 different and distinct matters are thrown indiscriminr.tely to- 
 gether ; and, in many instances, no ingenuity can determine 
 whether your argument, your illustrations, your depracatory 
 expressions, apply to the one proclamation or to the other. 
 
But at present I shall, so far as I can, ascertain from your pani- 
 p'lilet the specific complaints you make as to the " emancipa- 
 tion proclamation," and, if I err in attributing to you allegations 
 as to this, which you intended solel}' for the other, my error 
 will, I trust, find an apology in the mode you have adopted of 
 treating the two subjects. 
 
 Befoi'e going further, I may be pardoned for imitating your 
 exam|)le, and saying a word personal to mj'self. In some essen- 
 tial paiticulars, I stand in the same position you state yourself 
 to occnpy. T, like you, " am a member of no political party." 
 *' I withdrew,"' as you did, " some years ago, from all such con- 
 nections." I have generally, however, exercised m}- privilege 
 as one of the electoral body : and at the last presidential elec- 
 tion I voted against the present incumbent, and at the last 
 State senatorial election I voted for the democratic candidate in 
 my district. 
 
 I, like yon, " have no occasion to listen to the exhortations 
 now so frequent to divest myself of party ties, and act for my 
 country." I, too, "have nothing but my country for which to 
 act ii) public aflairs," and with me, too, " it is solely because 
 I have iliat yet remaining, and know not but it may be possible 
 to say something to my countrymen, whicii may aid them to 
 form right conclusions in these dark and dangerous times that 
 I novv- (through you) address them," and make the effort to aid 
 them in " formino; rie-ht conclusions" as to vour views, and tlie 
 subject of which you treat. Thus, my work, like 3'ours, is 
 purely " a work of love." 
 
 It niay not be amiss to say, that there are, in fact, but two 
 [)arties in our country ; one that is for the country, the other 
 that is against the country. To the former belong the vast 
 majority of the Democratic party and the vast majority of the 
 RepubHcan party, and the few (alas! so few) Unionists of 
 the South ; to the latter belong the fanatical abolitionists in the 
 Republican party, the rebel sympathisers in the Democratic 
 party and the Eebels of the South. To the party of my country 
 belong, I sa}", the great majority of both the Democratic and 
 the Republican parties; in other words, the vast majority' of 
 the " People" of the United States — I say so, because I cannot 
 be pei-suaded, that that majority, by whatever par^y name tlie 
 
individuals composing it may be called, are insensible to tlio 
 blessings of the form of government under which they live, un- 
 aware, and ignorant of the indispensable importance of the pre- 
 servation of the Union to their existence as a nation— forgetful, 
 basely, angratefully forgetful, of the heroic struggles and sacri- 
 fices of their Revolutionary fathers— deaf and dead to the earnest, 
 paternal farewell advice and warnings of Washington, lost to all 
 sense of patriotism, and of public virtue. And as to the millions 
 from other lands, who are now " of us and with us," who have 
 sought and found shelter and protection, and happiness in our 
 Temple of Liberty, and who with such gallantry have recently 
 fought the battles of "The United States of America,-' and who 
 individually belong to the Democratic or the Republican par- 
 ties, I cannot believe that these men, whether as individuals 
 they may be called Democrats or Republicans, will ever con- 
 sent to the overthrow of that Temple, or to the breaking up of 
 those " United States." But notwithstanding this perfect con- 
 viction of mine, it is nevertheless, as you say, not out of place 
 for you or for me, or for any others who choose to undertake 
 the task, to "say something that may aid our countrymen to 
 form right conclusions in these dark and dangerous" (as you 
 call them) " times." 
 
 These words, "dark and dangerous," in the connvction in 
 which you use them, lead me to say another preliminary word 
 before coming directh^ to your argument. 
 
 These words assure me, that you belong to that class of men 
 among us, not largo in number but sometimes influential in 
 position, who, from natural temperament and disposition, or 
 from aversion to si i'ife of all kinds, or from a want of ^?r«9/;^r 
 appreciation of tlie real character of this rebellion, (I think 
 chiefly from the latter cause), honestly labor under a fearful 
 distrust or a gloomy ioreboding as to the result of the impend- 
 ing contest for the preservation of our glorious government and 
 of our blessed Union. / do not belong to that class of men. I 
 do not now believe, fear, nor apprehend, and never for a moment 
 have believed, feared, or apprehended that a crime, such as this 
 rebellion, a crime against the Almighty and against humanity, 
 wholly without a parallel for enormity in the world's history 
 and the iniquity of which can scarcely be expressed in any Ian- 
 
6 
 
 liuaoje known to us, I do not, I say, believe that such a crime 
 will be permitted to be carried to a successful end. so long as 
 •' God sitteth on the throne judging right," nor until Truth shall 
 cease to prevail over ei-ror, reason to triumph over delusion, 
 and Eight to overcome wrong.* On the contrary, I look with a 
 clear faith and a cheerful confidence to the termination of this 
 rebellion at no I'emote period, and to such a termination as will 
 show to an admiring and approving world that this government, 
 confessedly the most beneficent, is at the same time the most 
 firm and enduring to be found on earth. 
 
 To proceed to the examination of your argument : 
 
 The first observation I have to make is, that throughout your 
 paper you treat the proclamation substantially as if it were a 
 proclamation of «55oZi(;^(3 emancipation in the rebel states ; that 
 is, were it such a proclamation, your argument would be in 
 siibstance the same it now is. 
 
 Again, in your copy of it you entirely omit the clause in 
 reference to compensation ; and it will be found that a portion, 
 and no immaterial portion, of your argument, is based on the 
 non existence of the conditional and comj)ensatory parts of the 
 proclamation. It is very clear, that a proper regard to truth 
 and fairness would have required a conspicuous place in your 
 paper for tiiese- two distinguishing features. 
 
 \yith these omitted or piractically concealed, you could by no 
 possibility attain the object you profess, namelj', " the aiding 
 your countrymen in forming 7n(jht conclusions." 
 
 A fatal eri'or underlying your whole argument is, that in 
 substance and efiect you treat and argue this matter precisely 
 as vou would have done had thei'e been no rebellion and no 
 
 * In speaking of the crime of lliis rebellion, the difference in a moral point of 
 view between the leading conspirators and the body of the people of the Soutli en- 
 gaged in it should carefully be kept in view. The former are to be execrated, the 
 latter to be pitied ; and while the practical effects of the wickedness of the one 
 and of the delusions of the other, combined in action as they are, are the same, 
 yet we are never to cease to draw the moral distinction just mentioned. Any one 
 who desires to know the secret and real causes of the Rebellion, the motives and 
 ends of the arch-conspirators, who originated it, will be gratified and instructed by 
 a perusal of the article entitled " Slavery and Nobility, vs. Democracy," in the July 
 number, 1862, of the Continental Montldy. 
 
war ; had the country been at peace; had you prepared and 
 published your views in November, 1859, (if a similar procla- 
 mation had been then issued). You throw the veil of oblivion 
 over the last two years ; you ignore the events, that have 
 occurred during that period and the state of things existing in 
 the country on the 22d of September, 1862. 
 
 Though you wholly disregard it in your argument, yet you 
 forcibly describe the status of the country on the day of its date. 
 You say, " Tlie war in which we are engaged is a just and 
 neeessary war. It must be prosecuted with the whole force of 
 this government, till the military power of the South is broken 
 and they suhnit themselves to their duty to obey and our right 
 to have them obey the Constitution of the United States as the 
 supreme law of the land." You thus aflB.rm that, at the date of 
 that proclamation, we were and now are engaged in a icar^ a 
 just and necessary war — a war that 7nust he carried to a 
 successful termination by the exercise of the whole force and 
 power of the government. You might justly have added, that 
 it is a war infinitely worse, on the part of the rebels who caused 
 it, than a war with any foreign nation could be, in its incep- 
 tion ; in the mode of its conduct by the rebels ; in the motives 
 of its originators, and the ends sought to be accomplished by it« 
 It was then by necessary consequence a war, in which all the 
 means— and more than the means — we might legitimately re- 
 sort to in a foreign war might and ought to be used and ren- 
 dered available to the utmost practicable extent consistent with 
 the rules of civilized warfare. 
 
 What, then, if we were at war witli a foreign nation immedi- 
 atel}^ on our borders, and that nation had within its bosom mil- 
 lions of slaves ? Can any one, versed in the slightest degree in 
 the pi'inciples of the law of nations and the laws of war, for a 
 moment doubt our right to declare and proclaim freedom to 
 those slaves, in case that nation did not discontinue that war 
 within a prescribed period ? 
 
 It may be asked what would be the utility, the practicalness 
 of such a proclamation ? I answer in your own words, " I do 
 not propose to discuss the question whether this proclamation 
 can liave awj lyractical effect on the unhappy race to whom it 
 refers, nor what its practical consequences would be on them 
 
8 
 
 and on the white foimlation of the United States." Yon dis- 
 cuss and I discuss simply the constitutiojial right and ])ower 
 of the President under existing facts to issue that proclama- 
 tion. 
 
 We, in this discussion, are to assume that, in the contingency 
 stated in it, it will go into actual operation as intended. Then 
 we are to inquire wiiat the practical effect of its thus going into 
 actual operation would be, not on the black nor the white race, 
 but on the war the rebels have declared and are carrying on. 
 It requires but a very limited knowledge of facts to answer this 
 inquiry. If any one fact is demonstrated M'ith perfect clear- 
 ness in this contest thus far, it is, that the slaves in the states in 
 rebellion have furnished to tliose states means indispensaUe to 
 them for carrying on and sustaining tlie contest on their part.* 
 
 * Thousands of illustations of the truth of this statement might be given. Take 
 this one: On the second day of November, 18G2, Gov. Brown, of Geoigin, " Com- 
 mander in Chief," issued this edict : 
 To the Planters of Georgia : 
 
 Since my late appeal to some of you, I am informed by Erig.-Gen. Mebcee, com- 
 manding at Savanniili, that but few hands have been tendered. When the impress- 
 ments made by Gen. Mercer, some weeks since, were loudly complained of, it 
 was generally said that, while the planters objected to the principle of impress- 
 ments, they would promptly furnish all tlie labor needed, if an appeal were made 
 to them. I am informed that Gen. Mercer now has ample authority to make im- 
 pressments. If, then, a sufficient supply of labor is not tendered within ten days 
 from this dale, he will resort immediately to that means of procuring it with my 
 full sanction, and I doubt not with the sanction of the General Assembly. 
 
 After you have been repeatedly notitied of the absolute necessity for more labor 
 to complete the fortifications adjudged liy tlie military authorities in command to 
 be indispensible to the defence of the key to the State, will you delay action till 
 you are compelled to contribute means for the protection, not only of all your 
 slaves, but of your homes, your firesides and your altars ? 
 
 I will not believe that there was a want of sincerity in your professions of liber- 
 ality and patriotism when many of you threatened resistance to impressment upoD 
 principle, and not because you were unwilling to aid the cause with your means. 
 
 I renew the call for negroes to complete the fortifications around Savannah, ant] 
 trust that every planter in Georgia will respond by a prompt tender of one-fifth 
 of all his working men. 
 
 As stated in my former appeal, the General ia command will accept the numbtr 
 actually needed. 
 
 JOSEPH E BROWN. 
 
 The Governor, it will be seen, calls for "one-fifth of all the working (slaves) 
 men." The slave population in Georgia, in 1860, exceeded 462,000 ; it is not an ex- 
 aggerated estimate, that one in six of that population is a " working man ;" this one- 
 sixth is more than 77,000, and one-fifth of that number is upwards of 15,000. Tlie 
 call is therefore for 15,000 " working men," and this too in a single State, and for 
 a limited purpose. And yet we have not the riffht to trtj to reader unavailable tc> 
 the " enemy," this powerful force ! 
 
9 
 
 Without the agncultnral and domestic labor of the slaves, tens 
 of thousands of whites, who have been and now are in the 
 rebel army, conld not have been withdrawn from the cultiva- 
 tion of the ground, and the various other pursuits requisite to 
 the supply, for that whole region, of the actual necessaries of 
 life. Without the slaves, their numerous and extensive earth- 
 works, fortifications, and the like, their immense transportation 
 of military stores and munitions, a vast amount of labor in 
 camps and on marches (to say nothing of the actual service as 
 soldiers, said in many instances to have been rendered by 
 slaves), could by no possibility have been aecomplislied. 
 
 The intent and design of the proclamation, its actual effect, 
 if it has its intended operation, is to forever deprive the " en- 
 emy" of this vital, absolutely essential, and, as I have just said, 
 indispensaUe, means of carrying on the toar. In reason, in 
 common sense, in national law, in the law of civilized war, 
 what objection can exist to our using our power to attain an 
 end so just, so lavrful, and I may say so beneficent, and so hu- 
 mane, as thus depriving our "enemy" of his means of warfare? 
 I do not believe that you, on more mature reflection, will deny 
 the truth of what I have just stated. 
 
 But you say, " grant tliat wc have this power and this right, 
 they cannot be exercised b>/ the President'^ and for the exer- 
 cise of this power, he is charged by you Vv'ith " usurpation." 
 
 A few considerations will show the fallacy, the manifest un- 
 soundness and error of your views and arguments on this point 
 I may, in the first place, lemai'k that the very title of your 
 pamphlet, " Executive Power,'' is a '• delusion and a snare." 
 The ease does not give rise to the investigation of the Presi- 
 dent's " executive power." The word "executive," manifestly 
 and from the whole context of the Constitution, has reference 
 to the civil power of the President, to his varions civil duties 
 as the head of the nation, in " seeing that the laws are exe- 
 cuted "—to his duties in time of 2JoaGe, though of course the 
 same "executive" duties still continue in time of war; but 
 to them, in that event, are su))eraddGd others, wiiich, in no just 
 or proper sense, can be termed " executive," but which pertain 
 to him in time of war as " Commander-in-Chief. These latter 
 duties are provided for by the letter and by the spirit of other 
 
10 
 
 provisions of the Constitution, by the very nature and necessity 
 of the case, by the first law of nature and of nations, the law of 
 self -preservation. What is the meaning and intent of the con- 
 stitutional direction to the President, " that he shall preserve^ 
 2)7'otect, and defend the Constitution^^ unless in time of war he 
 can do so in his capacity of " Commander-in-Chief," unless in 
 time of war ^ he shall have the power to adopt and carry out as 
 to the enemy such measures as the laws of war justify, and 
 as he may deem necessary. Is the Constitution designed 
 to do away these laws, and render them inapplicable to our 
 nation — in other words, is the Constitution a felo de se f It 
 cannot be denied, that in time of war, at least, the President, 
 while in a civil sense the " executive" is at the same time the 
 military head of the nation — " the Commander-in-Chief" — 
 and as such his " command" is necessarily co-extensive with the 
 country. 
 
 I cannot, on this point, quote anything more true and more 
 apposite than a paragraph of your own. " In time of war, 
 loithoiit any special legislation^ the (our) Cominander-in- Chief 
 is lawfully empowered hy the Constitution and laws of the 
 United States to do whatever is necessary and is sanctioned hy 
 the laws of war to accomplish the lawful objects of his comm.and.''^ 
 
 This is, undoubtedly, the constitutional law of the land, and 
 being so, it of necessity upsets and overturns all your objections 
 to the proclamation in question. The "lawful object" of the 
 President at this moment is to preserve the Constitution by 
 putting an end to this rebellion. In order to do this, it is 
 necessary to deprive the rebels of their means of sustaining the 
 rebellion — one of the most effective and available of those 
 means, as just shown, is their slaves; the intent and object of 
 the proclamation are to deprive them of those means. The so 
 depriving them "is sanctioned by the laws of war," and, con- 
 sequently, this act of the President is, within your own doc- 
 trine, perfectly legal and constitutional. 
 
 The same argument which you make against presidential 
 power was made in Cross v. Harrison, 16 Howard, 101, in the 
 Supreme Court of the United States, in a case occurring during, 
 and arising out of, our war with Mexico, in the judgment in 
 which case you, as one cf the Justices of that Court, concurred. 
 
11 
 
 In that case the Presidetit, without any specific provision in the 
 Constitution — without any law of Congress pre-existing or 
 adopted for the occasion, created a civil government in Cali- 
 fornia, establislied a war tariff", and (by his agents) collected 
 duties. The Court held that these acts (to use their own lan- 
 guage) " were rightful and constitutional, though Congress had 
 passed no law on the subject;" that " those acts of the Presi- 
 dent were tlie exercise of a Ijelligerent right ; that they were ac- 
 cording to the law of arms and right on the general yrlnciples 
 of loar and peace." Who will allege, that the acts of the Pre- 
 sident on that occasion were not, to say the least, as unautho- 
 rized by the Constitution and the law as his proclamation in 
 the present case ? And yet you did not dissent from the judg- 
 ment of the Court, you did not speak of those acts as acts of 
 " Executive " power, for the term would have been there, as it 
 is here, wholly inapplicable ; you did not then charge the Pre- 
 sident with usurpation. The whole case there was, as it is 
 here, a case arising out oihelligerent rights and duties, out of a 
 state of war ^ and the President's acts were there, as here, not 
 in contradiction to, and disparagement of, the Constitution, but 
 consistent therewith, on the great ground that the Constitution 
 nowhere repeals, but, on the contrary, from the necessities of 
 its own existence and preservation, recognizes the laws of war 
 m a state of loar. Similar authorities in abundance might be 
 cited, but it would be a work of snpererogation. 
 
 It nuiy not be amiss, however, to refer in this connection to 
 tlie honored name of John Quincy Adams, on the very point 
 now in question, namely, the constitutional right of tlie Presi- 
 dent to issue this proclamation. 
 
 No citizen of this land will deny to Mr. Adams as perfect an 
 acquaintance with the spirit and nature of our institutions, as 
 minute a knowledge of the provisions, expressed and implied, of 
 the constitution, and as ardent a desire to preserve them in 
 their purity, as were ever possessed by any man living or dead. 
 He was distinguished, too, for the most delicate moral sense, 
 the purest integrity, and the deepest conscientiousness. I think 
 no man who has taken an official oath ever felt a more earnest 
 and constant desire on no occasion to violate it. Now, JMr. 
 Adams, while a member of the House of Kepresentatives, in a 
 
12 
 
 debate in the House, on an important subject, in April, 1842, 
 after statintr that slavery was abolished in Columbi}), first by 
 the Spanish General Murillo, and secondly by the Atnei'ican 
 General Bolivar, by virtue of a 7nilitary command given at the 
 head of the army^ and that its abolition continued to this day, 
 declares that "in a state of aotual ivar the laws of 'tmir take 
 precedence over civil laws and municipal institutions. I lay 
 this down as the law of nations. I say that the military 
 authority takes for the time the place of all municipal institu- 
 tions, slavery among the rest, and tliat under tJtat^V.V-Q 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 (subordinate) com- 
 mander of the army has the power to order the emancipation of 
 the slaves.'''' This is the " true saying" of a great constitiitional 
 lawyer, a pure patriot, a conscientious man — Indeed, I doubt 
 whether any man in this countr}^, whose position entitles his 
 opinions to any consideration, will be found to concur in your 
 views. They are not adopted — indeed, they are repudiated by 
 the most prominent leader of the Democratic party, 'i'lius, Mr. 
 John Van Buren (in a speech before the Democratic Union 
 Association of the city of New York, on the 10th of November, 
 instant) said : " I never said anything in reference to that pro- 
 clamation except that it was a matter of questionable expedi- 
 ency. I have o^ever deemed it unconstitutional. I have never 
 even asserted that, as a ivar 7neasurc it might not have been 
 expedient." It would seem idle to add more in demonstration 
 of the clear, unquestionable power oi the President (I may say, 
 of his solemn duty) " as commander in chief," in the exei'cise 
 of a militaiy power, " during a state of war," to issue the pro- 
 clamation in question. 
 
 The ground of objection you most prominently ])ut forth is, 
 indeed, extraordinary, and, without ofience I trust I may say, 
 monstrous. It is no more nor less than this : " The persons who 
 are the subjects of this proclamation are held to service by tiie 
 laws of the States in wliich they reside, enacted by State author- 
 ity." " This proclamation by an executive decree proposes to 
 rep>eal and anmd valid State laws, whicji regulate the domestic 
 relations of their people," and this "as a punishment against 
 
13 
 
 tlie entire people of a State by reason of tlie criminal condnct 
 of a governiiuj majority of its people." Never was more error, 
 gross, palpable, grievous, found in a single brief paragraph. 
 Mark the existing state of things. These " States" are each 
 and every of them in rebellion against their country and their 
 Government ; they are waging against it the most bloody and 
 relentless war ; they totally condemn and repudiate the con- 
 stitution of their country ; tliey deny that it has any, tlie least, 
 antLority over them ; they are making almost superhuman 
 effort^ to overthrow and destroy it ; the people, as individuals, 
 and the States in their corporate, municipal capacities go hand 
 in hand together in this awful work, and yet you claim for 
 them t!ic protection of that very constitution ; you claim the 
 inviolability of their Stats laws nnder that constitution. You 
 claim that those Za-zzJS are "valid" and operative, and are to 
 shield and protect, aid and assist them in their uniiallowed 
 attempt to destro}^ their country ! ! It is difficult to imagine 
 under what hallucination you were laboring when you gave 
 utteiauce to those sentiments. The bare statement of the case 
 must carry to every sane mind, North and South, the instant 
 i'efutati"n of your ])ropositions. The very rebels themselves, 
 to wlioin you offer the protection of the " constitution," would, 
 with wrathful indignation, spurn the offer. 
 
 You speak of the proclamation as a " threatened penalty " — 
 
 as " a punishment to the entire people of a state by 
 
 j-easoii of the criminal conduct of a governing majority of the 
 people." 
 
 I have already shown, satisfactorily I trnst, that the act of 
 the President partakes in no sense of the character of a " pen- 
 alty " or " a punishment," but is simply the exercise of his con- 
 stitutiniial puwer, in a time of war, to devise and adopt and carry 
 out against tlie enemy such measures as he may judge to be for 
 the good of his country ; for the defeat of that enemy, and for 
 the successful and speedy ending of " the war." You draw a 
 distinction, unheard of, I imagine, till announced b^^ you, a dis- 
 tinction between the "people of a State," and the "governing 
 majority "' of that people ; a distinction, too, which is to operate, 
 in a time war, against the party with whom that "State" 
 is at war ! ! I venture to say, that no writer on the law of na- 
 
14 
 
 tions, no jiidiciul tribunal, no intelligent man, has up to this 
 hour, believed or stated that, in the case of foreign war above 
 supposed, the "governing majority" was not to all legal and 
 all practical purposes, " the State." Were the United States at 
 war with any foreign power — a war sanctioned by the *' gov- 
 erning majority," (as our war of 1812,) but a war which you 
 and others (a minoritj'j wholly disapproved ; and that foreign 
 power adopted some war measure which would operate on " the 
 entire people," of the United States, could you and your asso- 
 ciates of the minority, or an}" principle of law, military or civil, 
 of justice, of reason, or of mercy, claim exemption from the 
 ofiects of that measure 1 The case supposed is precisely the 
 case as it now exists between the " United States of America " 
 on the one hand, and the " Rebel States and people," on the 
 other. 
 
 Again, you state as a serious, if not conclusive objection to 
 tlie proclamation, that " it is on the slaves of loyal persons or of 
 those who from tlieir tender years, or other disability, cannot 
 be either disloyal or otherwise, that the proclamation is to op- 
 erate." Have your countrymen at this hour, to learn for the 
 iirst time, that the " sun shines alike on the just and on the un- 
 just," that storms and whirlwind overwhelm at the same time 
 the righteous and the wicked and that the calamities of war, 
 from the very necessity of the case, fall indiscriminately on the 
 innocent and the guilty, the strong and the helpless, on those 
 of mature and those of " tender years?" But as to this last ob- 
 jection, it lacks one material cpiality, namely, foundation in fact. 
 That part of the proclamation, which you have so strangeh^, as 
 observed above, omitted, provides for the case of the very per- 
 sons for whom your sympathies are excited. It pledges to them 
 compensation. I say " pledges," for it declares " that the Ex- 
 ecutive will in due time recommend that all persons who have 
 remained loyal, (of course including in its spirit tliose who 
 from tender years, or otherwise were incapable of being dis- 
 loyal,) shall be comyenmted for all losses by acts of the United 
 States, including the loss of slaves?^ No future Congress of the 
 United States will be so lost to all sense of honor and obligation 
 as not to pass, and no future President so degraded as not to 
 
15 
 
 approve, a bill redeeming this solemn and sacred '' pledge " of 
 the Head of the nation. 
 
 Again, yon advert in no part of your argument, to the vital 
 fact that this proclamation is not absolute and unconditional, 
 but that it depends even for its existence practically on the acts 
 and will of the rebels themselves. If they so elect, it is never 
 to go into ojjeratlon^ and they have abundant time to make 
 that election, namely, from the 22d of September, 1S62, to the 
 1st day of January, 1863. But your argument, in all its essen- 
 tial particulars, \\o\\\(\. have been just the same as you now 
 address it to your fellow-citizens, if this proclamation had been 
 absolute, had declared universal emancipation, to go into effect 
 on the day of its date, and (as already remarked) had not pro- 
 vided compensation to the loyal, and had been issued in a time 
 of profound peace. 
 
 You profess, in your argument, simply to examine " the na- 
 ture and extent, and the asserted source of the power by which 
 it is claimed that the issuing of this proclamation was author- 
 ized;" and it was "for the purpose of saying something to your 
 countrj'men to aid them in forming right conclusions,''^ that yon 
 "reluctantly addressed them." The policy, the expediency, 
 the utility, the practical effects, jp^^* se, of the proclamation, you 
 say, you do not " propose to discuss," yet you intimate, that by 
 means of this proclamation, if executed, " scenes of bloodshed 
 and worse than bloodshed are to be passed through," and you 
 express, in no unequivocal manner, a doubt "as to the lawful- 
 ness, in any Christian or civilized land, of the use of such means 
 (that is, this proclamation) to attain any end." You intimate, 
 too, that " a servile war is to be invoked to help twenty millions 
 of the white race to assert the rightful authority of the Consti- 
 tution and laws of their country." All these direful forebod- 
 ings are put forth in half a dozen lines, certainly not to "aid 
 your fellow citizens in forming right conclusions," but through 
 their sympathies and their fears to induce the concurrence of 
 their reason in your views as to the power to do the act in 
 question. These " givings out" of yours require a passing 
 notice. 
 
 In the first place, where is your authority for the allegations 
 as to " scenes of bloodshed and a servile war ?" I an] not an 
 
16 
 
 abolitionist, nor a believer in the social and political equality 
 of the black and white races (thougli I have an opinion on the 
 subject of the effect of the institution of slavery on tlie white 
 man and white woman, wdio have been nurtured under its 
 influence, and on the question of the compatability of the 
 institution with a republican form of government). I am even 
 called by some a pro-slavery man. Yet I see no " scenes of 
 bloodshed," no " servile w^ar," in the event of the practical 
 carrying out of this proclamation. This, however, is a mere 
 matter of speculation and opiinon, and while I freely concede 
 your right to entertain your own, I claim my right to entertain 
 mine. Our means of forming our opinions are the same ; we 
 both have the same lights, and the result alone can show which 
 of us is right. 
 
 But, in the next place, assuming the consequences to he just 
 such as you imagine, who is responsible for those consequences? 
 They cannot come, as jon will admit, if the rebels retwn to 
 their allegiance ; if they cease their unhallowed efforts to over- 
 throw their government; if they become dutiful citizens. If 
 they do not, it is not your fault nor mine, nor that of our fellow- 
 citizens, nor of the President, nor of the government of the 
 United States — it is solely, wholly, unquestionably, their oion. 
 
 Again, you look with evident heartfelt horror at the events 
 which you thus contemplate. Have you no horror, no tears of 
 sympathy, no " bowels of compassion," when you reflect on the 
 multitudes, the thousands of valuable loyal lives lost, homes 
 grief-stricken, parents reudered childless, and children rendered 
 orphans ; the desolation and misery of whole neighborhoods, to 
 say notliing of the enormous material destruction caused to citi- 
 zens of the loyal states in this war — a war on our part, as you 
 say, '* so just and necessary," and on the part of the rebels so 
 wicked, so wanton, so utterly causeless, and so wholly unjusti- 
 fiable. Tiioiigh no man of humanity could look with other 
 than deep distress on the " scenes of bloodshed," and the "ser- 
 vile war," you imagine (should they become realities), surely it 
 cannot be lielieved, that the amount of distress and suftering, 
 that would thus ensue, would equal — it surely cannot surpass — 
 the distress and suffering that have already been endured by 
 
17 
 
 the loyal citizens of this republic in consequence of this rebel- 
 lion. ^. , . I'M 
 
 You doubt the " lawfulness," in this Christian and civil- 
 ized land, of the use of such means (as this proclamation) to 
 attain my end. And has it come to this, that a distinguished 
 citizen of the republic doubts, whether a proclamation emanci- 
 patino- the slaves in those States, which shall be in rebellion on 
 the first of January next, may not be " used as the means " to 
 attain the end" (granting that it may tUvehj be attained) ot 
 Pudino- this war of rebellion, and thus of saving our Constitu- 
 tion, our government, our Union, and of still preserving for 
 ourselves and for coming generations, here and elsewhere, the 
 only real Temple of civil and religious liberty in which men 
 can worship on earth. You speak of "lawfulness" in this 
 connection rather in a moral than in any other sense ; the right 
 and power in a legal and constitutional sense, to issue this 
 proclamation has already been demonstrated. 
 
 In a document intended, " after study and reflection," " to 
 aid the citizens of this republic to form a right conclusion" on 
 matters of surpassing magnitude and solemnity— matters im- 
 perilling their very liberties, as you state, a religious, scrupu- 
 lous regard to truth in every material respect, was, of course, 
 to be expected; and departure from truth may consist as well 
 in omission and suppression as in direct assertion. I have al- 
 ready mentioned that you have wholly omitted, in the state- 
 ment of the proclamation, the compensatory part, and that you 
 omit to bring forward, except merely incidentally, another most 
 material part of it, namely, its conditional, alternative char- 
 acter. . . . 
 
 Whether your statement as to the " social condition of nine 
 millions of men," has reference to both white and black, or to 
 the white only, it is difficult to determine from the context ; if 
 it has reference to the white, you commit a very serious error ; 
 for the whole white population of the rebel states (to which 
 alone the proclamation and your argument relate), according to 
 the last census (1S60), does not exceed four and one half 
 millions. 
 
 In quoting the opinion of the lamented Judge Woodbury, 
 you omit to state that it was a dissenting opinion, concurred in 
 2 
 
18 
 
 by no other Judge, founded essentially, if not solely, on the 
 fact assumed by him, that at the time, in question in that case, 
 " a state of war " did not exist in Ehode Island, where the 
 matter arose. In so grave a paper prepared, as you assert, so 
 deliberately, put forth under an imperative and resistless in> 
 pulse of patriotic apprehension that the liberties of the countiy 
 were in imminent peril, (not from the rebellion, but from the 
 acts of the President, designed to crush the rebellion), in such 
 a paper, I say, it would seem that we ought not to be terrified 
 by "portentous clouds," "gigantic shadows," the phrase 
 " usurpation of power," often repeated, the " loss of his head 
 by Charles I." " seven hundred years of struggles against arbi- 
 trary power," and many other similar appeals, Ijy modes of ex-' 
 pression, to anything but that calm- reason^ which enables us to 
 "form right conclusions in dark and dangerous times." Much 
 less in such a grave document from such a source, should im- 
 portant stress be laid on the expression, of an nnnamed and 
 irresponsible editor of a newspaper, " that nobody pretends 
 that this act is constitutional, and nobody cares whether it is or 
 not." That this editor was at least a very inferior consti- 
 tutional lawyer, is very clear, and that this text from his paper 
 should have furnished a peg, on which to hang an alarming 
 commentary on the " lawlessness" of the times, is at least ex- 
 traordinary, and that lawlessness too, not the lawlessness of 
 rebels nor of rebel sympathizers. 
 
 You ask, in view of the President's proclamation, " Who can 
 imagine what is to come out of this great and desperate strug- 
 gle? The military power of eleven of these states being des- 
 troyed, what then? What is to be their condition ? What is 
 to be our condition'?" 
 
 Your questions admit of a ready answer. The United States of 
 America are to come out of the struggle, a great, a united, a 
 powerful, a free people, purified by the fires of adversity, and 
 taught by their tremendous calamities the lessons of modera- 
 tion and humility. The people of the rebel states, who choose to 
 remain in them, are to come out of the struggle as citizens of 
 states forming a part, as heretofore, of the United States, and 
 with them, and as parts of them, they are in future to enjoy 
 the blessings of a well regulated liberty, they having, in the 
 
19 
 
 mean time "been taught a lesson of infinitely greater severity 
 than that by ■u'hich their brethren of the loyal states have been 
 instructed. Whatever they have necessarily and legitimately 
 lost in material things, by reason of the war they have waged, 
 is, of course, lost to them forever ; if their slave property is 
 thus lost, it is lost, and that is all that can be said as to that. 
 Then " their condition" and " our condition" is to be in siib- 
 stance just what it was before the rebellion, and what it would 
 have continued to be but for the rebellion, with this only differ- 
 ence, that they and we will have learned the priceless value of 
 the Union, and for generations to come treason and rebellion 
 will not raise their horrid heads. 
 
 Perhaps you may call this the dream of an enthusiast. Kely 
 on it, I speak only the words of " truth and soberness ;" and if 
 you are spared for a brief period, you will be rejoiced, I trust, 
 to witness their full realization. Rejoiced, I say, because from 
 your pamphlet, you would have your countrymen infer, and I 
 am bound to presume, that nothing but your intense love of 
 your and their country and your agitating appreliensions that 
 the "principles of liberty" are greviously to suffer (not from the 
 rebellion, but from the acts of the Presideni)^ has induced you 
 to address them. 
 
 You say the " cry of disloyalty " has been raised against any 
 one who should question these executive acts. I know not 
 whether that epithet has been apj)lled to you ; if it has been, I 
 am bound to believe that the imputation was without cause, 
 and that you are a faithful, loyal citizen of the Kepubllc. But 
 the greatest and the best are liable to err, and I may be permit- 
 ted to say, that, however honestly and sincerely you entertain 
 the sentiments you express, you have selected an Inopportune 
 moment for their expression ; and that at this particular period 
 of our country's history, your "studies and reflections," your 
 time and your efforts, would, to say the least, have been more 
 benignly and gracefully employed In presenting to your coun- 
 trymen a life-like picture of the real character of this rebellion, 
 and In impressing on them with stirring and glowing eloquence 
 the momentous duty It devolved on them. You could, wnth 
 perfect verity, have told them, that this war. Inaugurated by the 
 rebel States, was wholly and absolutely imthout cause : in proof 
 
20 
 
 of that assertion, you could have stated three facts, so undeni- 
 able that the hardiest rebel, not bereft of reason, would not dis- 
 pute them. 
 
 First. — That on the 1st day of November, 1860, no people on 
 the globe were in the more perfect enjoyment of civil and re- 
 ligious liberty, of social, personal, and domestic security; of 
 more entire protection in the possession and use of all their 
 property, oi every kind ', and of more material prosperity, than 
 the people of the eleven rebel States. 
 
 Second. — That for all these blessings, as great as were ever 
 vouchsafed by God to man, those people were indebted entirely 
 to that Constitution and that Union which their rebellion was 
 undertaken to destroy. 
 
 Third. — That from the day of the organization of the Govern- 
 ment under that Constitution, in the year 1YS9, down to the day 
 when this rebellion began its infamous and unhallowed work, 
 there never had been, on the part of that Government, a single 
 act of hostility, nor even of unkindncss, toward these States or 
 their people. 
 
 You should then have pointed out to your " countrymen," in 
 language more persuasive and emphatic than I can use, their 
 solemn and imperative duty as patriots, as christians, and as 
 men, in this hour of their country's suffering and peril ; and you 
 should have told them that if these times are, as you say, " dark 
 and dangerous," this darkness and this clanger have been caused 
 by the wicked acts of these rebellious men. In such an address 
 to your countrymen, your dedication would have been not 
 merely " To all persons who have sworn to support the Consti- 
 tution of the United States, and to all citizens who value th.e 
 principles of civil liberty which that Constitution embodies, and 
 for the preservation of which it is our only security," but also, 
 " to all persons who abhor treason and rebellion against that 
 Constitution, and to all who prize the inestimable blessings of 
 our hallowed Union, and to all who hold dear the farewell 
 words of the Father of his country." 
 
21 
 
 I had intended, in this letter, to comment on that part of 
 your pamphlet which relates to the President's proclamation of 
 the 24th of September, 1862, but this paper is already suffi- 
 ciently extended. It would, I think, be easy to show that the 
 dreadful dangers you apprehend are, in truth, to use your own 
 terras, "portentous clouds" and " gigantic shadows" of your 
 own creation. At any rate you may rest assured, if you and I 
 and all others of our fellow citizens, outside of the rebel states, 
 shall make honest, earnest, determined efforts for the putting 
 an effective end to this rebellion (and that such will be the case 
 I, loving my country and knowing the uns^eahaUe value of the 
 staTce, have no right nor reason to doubt), those efforts will be 
 crowned with speedy and triumphant success, peace and har- 
 mony will be restored to the republic, the " principles of civil 
 liberty" will not have suffered, and the bugbears of "usurpa- 
 tion," " arbitrary power," and other similar chimeras, which 
 excited imaginations and gloomy tempers have evoked, will dis- 
 ' appear forever. 
 
 Had you been an unknown and obscure citizen, any notice 
 of your pamphlet vv'ould have been supererogatory ; but be- 
 cause of the influence calculated to be exerted by anything 
 coming from the pen of one who had but recently been the 
 incumbent of the highest office in the gift of the Government, 
 and who is now in the exalted walks of social and professional 
 life, I have deemed it my duty to present these views of your 
 argument, and thus "possibly to aid my countrymen" in 
 " forming right conclusions " as to its merits and the merits of 
 the subject of which it treats. 
 
 I hear that others have published answers to your paper. 
 IS^ot having seen any of them, I know not but that I may have 
 merely repeated their views ; if so, no harm is done ; if I have 
 presented any that are new, " possibly " some good may result. 
 
 ]N"ew York, Nov. 28th, 1862. 
 
 Charles P. Kirkland. 
 
LBAgn