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A LETTER 
 
 TO THE 
 
 HON. BENJAMIN R. CURTIS, 
 
 ■i 
 
 LATE JUDGE OF THE 
 
 <f iipfjemje &mxi 0I tin %mUi M^t0, 
 
 IN REVIEW OF niS RECENTLY PUBLISHED PAMPHLET 
 ON^ THE 
 
 '' EMANCIPATION PROCLAMATION " 
 
 OF THE PRESIDENT. 
 
 IB-y O H ^^ 2?=L Ij E S I^. KlI :E={.I^Iji-A.ISr XD, 
 OF NEW-YORK. 
 
 NEW-YORK: 
 
 683 Broadway. 
 18G3. 
 
Mr 3 'OS 
 
 £1465^ 
 
To THE Honorable Benjamin E. Curtis, late Associaie 
 Justice of the Supreme Court of the United States, 
 
 I propose respectfully, but with perfect frankness, to review 
 yanr recently published pamphlet on the subject of the President's 
 '.' Emancipation Proclamation " of September 22d, 1862, 
 
 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 involves ulti- 
 mate results and consequences of the most important and enduring 
 character; the other is, in its very nature, temporary. The one 
 gives rise to considerations of a kind wholly different from, and 
 irrelevant to, the other ; yet your pamphlet so confuses them to- 
 gether, that it is quite difficult, if not impossible, 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 crime of usurpa- 
 tion ; 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, the 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 
 indiscriminately together ; and, in many instances, no ingenuity 
 can determine whether your argument, your illustrations, your 
 deprecatory expressions, apply to the one proclamation or to the 
 other. But at present I shall, so far as I can, ascertain from your 
 pamphlet the specific complaints you make as to the " emancipa- 
 tion proclamation," and, if I err in attributing to you allegations 
 
as to this, whicTi you intended solely for the other, my error will, 
 I trust, find an apology in the mode you have adopted of treating 
 the two subjects. 
 
 Before going further, I may be pardoned for imitating your 
 example, and saying a word personal to myself. In some essential 
 particulars, I stand in the same position you state yourself to 
 occupy. I, like you, "am a member of no political party." "I 
 withdrew," as you did, "some years ago, from all such connec- 
 tions." I have generally, however, exercised my privilege as one 
 of the electoral body ; and at the last presidential election I voted 
 against the present incumbent, and at the last State senatorial elec- 
 tion I voted for the Democratic candidate in my district. 
 
 I, like you, " 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 in public 
 affairs," and with me, too, "it is solely because I have that yet 
 remaining, and know not but it may be possible to say something 
 to my countrymen, which may aid them to form right conclusions 
 in these dark and dangerous times, that I now (through you) 
 address them," and make the effort to aid them in "forming 
 right conclusions" as to your views, and the subject of which 
 you treat. Thus, my work, like yours, is purely "a work of 
 love." 
 
 It may not be amiss to say, that there are, in fact, but two parties 
 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 Demo- 
 cratic party and the vast majority of the Eepublican party, and the 
 few (alas I so few) Unionists of the South ; to the latter belong the 
 fanatical abolitionists in the Eepublican party, the rebel sympa- 
 thizers in the Democratic party and the Eebels of the South. To 
 the party of my country belong, I say, the great majority of both 
 the Democratic and the Eepublican parties ; in other words, the 
 vast majority of the "People" of the United States — I say so, 
 because I cannot be persuaded that that majority, by whatever 
 party name the individuals composing it may be called, are insen- 
 sible to the blessings of the form of government under which they 
 live, unaware and ignorant of the indispensable importance of the 
 preservation of the Union to their existence as a nation — forgetful, 
 basely, ungratefully forgetful, of the heroic struggles and sacrifices 
 
of their Eevolutionarj fathers— deaf and dead to the earnest pater- 
 nal 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 Eepublican parties, I cannot be- 
 lieve that these men, whether as individuals they may be called 
 Democrats or Eepublicans, will ever consent to the overthrow of 
 that Temple, or to the breaking up of those " United States." But 
 notwithstanding this perfect conviction 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 darh and dan- 
 gerous " (as you call them) "times." 
 
 These words, " dark and dangerous," in the connection in which 
 you use them, lead me to say another preliminary word before 
 coming directly to your argument. 
 
 •These words assure me, that you belong to that class of men 
 among us, not large in number, but sometimes influential in posi- 
 tion, who, from natural temperament and disposition, or from 
 aversion to strife of all kinds, or from a want of proper appreciatiorh 
 of the real character of this rebellion, (I think chiefly from the lat- 
 ter cause,) honestly labor under a fearful distrust or a gloomy fore- 
 boding as to the result of the impending contest for the preserva- 
 tion 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 language known to us, I do not, I say, 
 believe that such a crime will be permitted to be carried to a success- 
 ful end, so long as " God sitteth on the throne judging the right," 
 nor until Truth shall cease to prevail over error, reason to triumph 
 over delusion, and Right to overcome wrong.* On the contrary, I 
 
 * lu speaking of the crime of this rebellion, the difference in a moral point of vievf 
 between the leading conspirators and the body of the people of the South engaged in it 
 
look witli a clear faith and a cheerfal confidence to the termination 
 of this rebellion at no remote period, and to such a termination as 
 will show to an admiring and approving world that this govern- 
 ment, 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 jour argument : 
 
 The first observation I have to make is, that throughout your 
 paper you treat the proclamation substantially as if it were a pro- 
 clamation of absolute emancipation in the rebel States ; that is, were 
 it such a jorodamaiion, your argument would be in substance the 
 same it now is. 
 
 Again, in your copy of it, you entirely omit the clause in refer- 
 ence to comjjensaiion ; and it will be found that a portion, and no 
 immaterial portion, of your argument, is based on the non-exist. 
 ence of the conditional and compensatory parts of the proclamation. 
 It is very clear, that a proper regard to truth a.nd fairness would 
 have required a conspicuous place in your paper for these two dis- 
 tinguishing features. 
 
 With these omitted or practically concealed, you could by no 
 possibility attain the object you profess, namely, " the aiding your 
 countrymen in forming right conclusions." 
 
 A fatal error underlying your whole argument is, that in sub- 
 stance and effect you treat and argue this matter precisely as you 
 would have done had there been no rebellion and no loar ; had the 
 country been at peace; had you prepared and published your 
 views in November, 1859, (if a similar proclamation 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 Septem- 
 ber, 1862. 
 
 Though you wholly disregard it in your argument, yet you 
 forcibly describe the status of the country on the day of its date. 
 
 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 delu- 
 sions of the other, cpmbined 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," ia the July number, 18152, of the Coniiiwntal 
 Monthly. 
 
You say, " The war in which we are engaged is s,just and necessary 
 war. It must be prosecuted with the ichole force of this govern- 
 ment, till the railitary power of the South is broken and they 
 submit 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 affirm that, at the date of that proclamation, 
 we were and noio are engaged in a luar^ a just and necessary war — 
 a war that must he carried to a success/id termination by the exercise 
 of the whole force and 2^ower 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 inception ; in the mode of its conduct by the rebels ; in 
 the motives of its originators, and the ends sought to be accom- 
 plished by it. It was then by necessary consequence a war, in 
 which all the means — and more than the means — we might legiti- 
 mately resort to in a foreign war might and ought to be used and 
 rendered available to the utmost practicable extent consistent with 
 the rules of civilized warfare. 
 
 What, then, if we were at war with a foreign nation immediately 
 on our borders, and that nation had within its bosom millions of 
 slaves? Can any one, versed in tlie slightest degree in the prin- 
 ciples 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 have 
 any practical effect on the unhappy race to whom, it refers, nor what 
 its practical consequences would be on them and on the white popu- 
 lation of the United States." You discuss and I discuss simply 
 the constitutional right and power of the President, under existing 
 facts, to issue that proclamation. 
 
 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 what 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 in- 
 
8 
 
 quiry. If any one fact is demonstrated "witli perfect clearness in 
 this contest thus far, it is, that the shaves in the States in rebellion 
 have furnished to those States means indispensable to them for car- 
 rying on and sustaining the contest on their part* Without the 
 agricultural and domestic labor of the slaves, tens of thousands of 
 whites, who have been and now are in the rebel army, could not 
 have been withdrawn from the cultivation 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 earthworks, 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 
 
 * Thousands of illustrations of the truth of this statement might be given. Take 
 this one: On the second day of November, 1862, Gov, Brown, of Georgia, "Com- 
 mander-in-Chief," issued this edict : 
 
 To the Planters of Georgia : 
 
 Since my late appeal to some of you, I am informed by Brig.-Gen. Mercer, com- 
 manding at Savannah, 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 impressments, they 
 would promptly furnish all the labor needed, if an appeal were made to them. I am 
 informed that Gen. Mercer now has ample authority to make impressments. If, then, 
 a sufficient supply of labor is not tendered within ten days from this date, 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 notified of the absolute necessity for more labor to 
 complete the fortifications adjudged by the military authorities in command to be indis- 
 pensable to the defence of the key to the State, will you delay action till you are com- 
 pelled 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 liberality 
 and patriotism when many of you threatened resistance to impressment upon 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, and 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 in command wUl accept the number 
 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 exaggerated 
 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. The call is therefore 
 for 15,000 "working men," and this too in a single State, and for a limited pur- 
 pose. And yet we have not the rigJU to try to render unavailable to the " enemy" 
 this powerful force ! 
 
been rendered by slaves,) could bj no possibility Lave been ac- 
 complished. 
 
 The intent and design of the proclamation, its actual effect, if it 
 has its intended operation, is to forever deprive the " enemy" of 
 this vital, absolutely essential, and, as I have just said, indispensable, 
 means of carrying on the war. In reason, in common-sense, in na- 
 tional law, in the law of civilized war, what objection can exist to 
 our using our power to attain an end so just, so lawful, and I may 
 say so beneficent and so humane, 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 that we have this power and this right, 
 they cannot be exercised hy the President,'' and for the exercise of 
 this power, he is charged by you with " 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, remark that the very title of your pamphlet, 
 ''Executive Power,'' is a "delusion and a snare." The case does 
 not give rise to the investigation of the President'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 various civil duties as the head of the nation, in 
 "seeing that the laws are executed"— to his duties in time of 
 peace, though of course the same " executive" duties still con- 
 tinue in time of war ; but to them, in that event, are superadded 
 others, which, in no just or proper sense, can be termed " execu- 
 tive," but which pertain to him in time of ivar as " Commander-in- 
 Chief" These latter duties are provided for by the letter and by 
 the spirit of other provisions of the Constitution, by the very na- 
 ture and necessity of the case, by the first law of nature and of 
 nations, the law of self-joreservation. What is the meaning and in- 
 tent of the constitutional direction to the President, " that he shall 
 preserve, protect, 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 ivar justify, and as he may 
 deem necessary ? Is the Constitution designed to do atvay these 
 laws, and render them inapplicable to our nation— in other words, 
 is the Constitution a felo de se ? It cannot be denied, that in time 
 
10 
 
 of war, at least, the President, while in a civil sense the "exec- 
 utive," is at the same time the military head of the nation — "the 
 Command 3r-in-Chief" — and as such his "command" is necessarily 
 coextensive with the country, 
 
 I cannot, on this point, quote anything more true and more ap- 
 posite than a paragraph of your own. " In time of war, without 
 anij special legislation, the (our) Commander-in-Chief is lawfulhj em- 
 powered hy the Constitution and laws of the United States to do what- 
 ever is necessary and is sanctioned hy the laws of loar to accomplish the 
 lawful objects of his comraandP 
 
 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 Presi- 
 dent 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 de^Driving them " is sanctioned by 
 the laws of war," and, consequently, this act of the President is, 
 within your own doctrine, perfectly legal and constitutional. 
 
 The same argument which you make against presidential power 
 was made in Cross v. Harrison, 16 Howard, 164, 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 of the Justices of that Court, concurred. In that case the 
 President, without any specific provision in the Constitution — 
 without any law of Congress preexisting or adopted for the occa- 
 sion, created a civil government in California, established a war 
 tariff, and (by his agents) collected duties. The Court held that 
 these acts (to use their own language) " were rightful and con- 
 stitutional, though Congress had passed no law on the subject ;" 
 that " those acts of the President were the exercise of a belligerent 
 right ; that they were according to the law of arms and right on 
 the general principles of war and peace." Who will allege, that the 
 acts of the President on that occasion were not, to say the least, as 
 unauthorized 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, yoi did not speak of those acts as acts of 
 
11 
 
 " Executive " power, for the term would have been there, as it is 
 here, wholly inapplicable ; you did not then charge the President 
 with usurpation. The whole case there was, as it is here, a case 
 arising out of belligerent 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 in a state of war. Similar authorities in 
 abundance might be cited, but it would be a work of supereroga- 
 tion. 
 
 It may not be amiss, however, to refer in this connection to the 
 honored name of John Quincy Adams, on the very point now in 
 question, namely, the constitutional right of the President 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. lie 
 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, Mr. Adams, while a 
 member of the House of Representatives, in a debate in the House, 
 on an important subject, in April, 1842, after stating that slavery 
 was abolished in Columbia, first by the Spanish General Murillo, 
 and secondly by the American General Bolivar, by virtue of a 
 military command given at the head of the army^ and that its aboli- 
 tion continued to this day, declares that " in a state of actual war 
 the laws of loar 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 in- 
 stitutions, 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 (subordinate) commander 
 of the army has the power to order the ew,anci.pation of the slaves^ 
 This is the "true saying" of a great constitutional lawyer, a pure 
 
12 
 
 patriot, a conscientious man — indeed, I doubt wlietlier any man in 
 this country, whose position entitles his opinions to any considera- 
 tion, 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. Thus, Mr. John Yan Buren (in a speech before 
 the Democratic Union Association of the city of New-York, on 
 the lOth of November instant) said: "I never said anything in 
 reference to that proclamation except that it was a matter of ques- 
 tionable expediency. I have never deemed it unconstitutional. I 
 have never even asserted that, as a war measure^ it might not have 
 been expedient." It would seem idle to add more in demonstration 
 of tbe clear, unquestionable power of the President (I may say, of 
 his solemn duty) "as commander-in-chief," in the exercise of a 
 military power, " during a state of war," to issue the proclamation 
 in question. 
 
 The ground of objection you most prominently put forth is, 
 indeed, extraordinary, and, without offence, I trust I may say mon- 
 strous. It is no more nor less than this : " The persons who are 
 the subjects of this proclamation are held to service by the laios of 
 the States in which, they reside, enacted by State authority." "This 
 proclamation by an executive decree proposes to repeal and annid 
 valid State laivs, which, regulate the domestic relations of their 
 people," and this "as a punishment against the entire people of a 
 State by reason of the criminal conduct of a governing 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 Constitution of their country ; they deny that it 
 has any, the least, authority over them ; they are making almost 
 superhuman efforts 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 the p-otedion of that very Constitution ; you claim the in- 
 violabilit}^ of their State laws under that Constitution. You claim 
 that those laws are " valid " and operative, and are to shield and 
 protect, aid and assist them in their unhallowed attempt to destroy 
 their country ! ! It is difficult to imagine under what hallucination 
 
13 
 
 you were laboring when you gave utterance to those sentiments. 
 The bare statement of the case must carry to every sane mind, 
 North and South, the instant refutation of your propositions. The 
 very rebels tliemselves, to whom 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 
 
 reason of the criminal conduct of a governing majority of the 
 people." 
 
 I have already shown, satisfactorily I trust, that the act of the 
 President partakes in no sense of the character of a "penalty" or 
 " a punishment," but is simply the exercise of his constitutional 
 power, in a time of war, to devise and adopt and carry out against 
 the enemy such measures as he may judge to be for the good of 
 his country ; for the defeat of that enemy, and for the success- 
 ful and speedy ending of "the war." You draw a distinction, 
 unheard of, I imagine, till announced by you, a distinction be- 
 tween the "people of a State," and the "governing majority" 
 of that people ; a distinction, too, which is to operate, in a time of 
 war, against the party with whom that " State " is at war ! ! I 
 venture to say, that no writer on the law of nations, no judicial 
 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 " governing majority," (as our war of 
 1812,) but a war which you and othei's (a minority) wholly dis- 
 approved ; and that foreign power adopted some war measure 
 which would operate on " the entire people" of the United States, 
 could you and your associates of the minority, on any principle 
 of law, military or civil, of justice, of reason, or of mercy, claim 
 exemption from the effects of that measure ? The case supposed 
 is precisely the case as it now exists between the " United States 
 of America" on the one hand, and the " Eebel States and peojjle" 
 on the other. 
 
 Again, you state as a serious, if not conclusive objection to the 
 proclamation, that "it is on the slaves of loyal persons or of 
 those who from their tender years, or other disability, cannot be 
 either disloyal or otherwise, that the proclamation is to operate.'' 
 
14 
 
 Have your countrymen at this hour, to learn for the first time 
 that the "sun shines ahke on the just and on the unjust," that 
 storms and whirlwind overwhelm at the same time the righteous 
 and the wicked, and that the calamities of war, from the very ne- 
 cessity 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 objection, itlacks one ma- 
 terial quality, namely, foundation in fact. That part of the pro- 
 clamation which you have so strangely, as observed above, omitted, 
 provides for the case of the very persons for whom your sympa- 
 thies are excited. It pledges to them compensation. I say 
 " pledges," for it declares " that the Executive will h\ due time 
 recommend that all persons who have remained loyal (of course 
 including in its spirit those who from tender years, or otherwise, 
 were incapable of being disloyal) shall be compensated 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 approve, a bill redeeming this solemn and 
 sacred " pledge " of the Head of the nation. 
 
 Again, you 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 jprac^icaZZ^ on the acts and will of the 
 rebels themselves. If they so elect, it is never to go into operation^ 
 and they have abundant time to make that election, namely, from 
 the 22d of September, 1862, to the 1st of January, 1863. But 
 your argument, in all its essential j^articulars, would have been just 
 the same as you now address it to your fellow-citizens, if this pro- 
 clamation had been absolute, had declared universal emancipation, 
 to go into effect on the day of its date, and (as already remarked)' 
 had not provided compensation to the loyal, and had been issued 
 in a time of profound peace. 
 
 You profess, in your argument, simply to examine " the nature 
 and extent, and the asserted source of the power by which it is 
 claimed that the issuing of this proclamation was authorized ;" and 
 it was "for the purpose of saying something to your countrymen 
 to aid them in forming right conclusions,'''' that you 'reluctantly 
 addressed them." The policy, the expediency, the utihty, the 
 practical effects, per se, of the proclamation, you say, you do not 
 
15 
 
 " propose to discuss," yet you intimate^ that by means of tbis pro- 
 clamation, if executed, "scenes of bloodshed and worse than 
 bloodshed are to be passed through," and you express, in no un- 
 equivocal manner, a doubt " as to the lawfulness, in any Christian 
 or civilized land, of the use of such means (that is, this proclama- 
 tion) 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 Constitution and laws of their coun- 
 try." All these direful forebodings 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 in- 
 duce 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 am not an aboli- 
 tionist, nor a believer in the social and political equality of the black 
 and white races, (though I have an opinion on the subject of the 
 effect of the institution of slavery on the white man and white 
 woman, who have been nurtured under its influence, and on the 
 question of the compatibility 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 war," in 
 the event of the practical carrying out of this proclamation. This, 
 however, is a mere matter of speculation and opinion, 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 you will admit, if the rebels return to their alle- 
 giance ; if they cease their unhallowed efforts to overthrow 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 own. 
 
 Again, you look with evident heartfelt horror at the events which 
 yon thus contemplate. Have you no horror, no tears of sympathy, 
 
16 
 
 no " bowels of compassion," when you reflect on tlie multitudes, the 
 thousands of valuable loyal lives lost, homes grief- stricken, parents 
 rendered childless, and children rendered orphans ; the desolation 
 and misery of whole neighborhoods, to say nothing of the enor- 
 mous material destruction caused to citizens 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 unjustifiable ? Though no man of human- 
 ity could look with other than deep distress on the "scenes of 
 bloodshed," and the " servile war," you imagine, (should they be- 
 come realities,) surely it cannot be believed, that the amount of 
 distress and suffering, that would thus ensue, would equal — it 
 surely cannot surpass — the distress and suffering that have «,1- 
 ready been endured by the loyal citizens of this republic in con- 
 sequence of this rebellion. 
 
 You doubt the "lawfulness," in this Christian and civilized land, 
 of the use of such means (as this proclamation) to attain any end. 
 And has it come to this, that a distinguished citizen of the republic 
 doubts wliether a proclamation emancipating 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 ilierehy be attained) of ending this war of rebellion, and thus 
 of saving our Constitution, 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 proclama- 
 tion 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 imperilling their 
 very liberties, as you state — a religious, scrupulous regard to truth 
 in every material respect, was of course, to be expected ; and de- 
 parture from truth may consist as well in omission and suppression 
 as in direct assertion. I have already mentioned that you have 
 wholly omitted, in the statement of the proclamation, the compen- 
 satory part, and that you omit to bring forward, except merely in- 
 cideutally, another most material part of it, namely, its conditional, 
 alternative character. 
 
17 
 
 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, (I860,) 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 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 Rhode Island, where the matter arose. In 
 so grave a paper prepared, as you assert, so deliberately, put forth 
 under an imperative and resistless impulse of patriotic apprehen- 
 sion that the liberties of the country were in imminent peril, (not 
 from the rebellion but frorn 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 sha- 
 dows," the phrase "usurpation of power," often repeated, the " loss 
 of his head by Charles I.," " seven hundred years of struggles against 
 arbitrary power," and many other similar appeals, hy 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 important stress be laid 
 on the expression, of aii unnamed and irresponsible editor of a news- 
 paper, " 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 constitutional 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 
 extraordinary, and that lawlessness, too, not the lawlessness of rebels 
 nor of rehel sympathizers. 
 
 You ask, in view of the President's proclamation : " Who can 
 imagine what is to come out of this great and desperate struggle ? 
 The military power of eleven of these States being destroyed, what 
 then? What is to be their condition? What is to be our con- 
 dition?" 
 
 Your questions admit of a ready answer. The United States of 
 America are to come out of the struggle, a great, a united, a power- 
 
18 
 
 ful, a free people, purified bj the fires of adversity, and taught by 
 their tremendous calamities the lessons of moderation 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, 
 the}'' are in future to enjoy the blessings of a well-regulated liberty, 
 they having in the mean time been taught a lesson of infinitely 
 greater severity than that by which 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 substance just 
 what it was before the rebellion, and what it would have continued 
 to be but for the rebellion, with this only difference, 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. Rely 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 wit- 
 ness their full realization. Rejoiced, I say, because from your pam- 
 phlet, 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 apprehensions that the " principles of 
 liberty" are grievously to suffer, (not from the rebellion, but from the 
 acts of the President,) 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 applied 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 Republic. But the greatest and the 
 best are liable to err, and I may be permitted 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 countrymen a lifelike picture of the real charac- 
 
19 
 
 ter of this rebellion, and in impressing on them with stirring and 
 glowing eloquence the momentous duty it devolved on thern. 
 You could, with perfect verity, have told them, that this war, 
 inaugurated by the rebel States, was wholly and absolutely without 
 cause : in proof of that assertion, you could have stated three facts, 
 so undeniable that the hardiest rebel, not bereft of reason, would 
 not dispute them. 
 
 i^i>5i.— That on the 1st day of November, 1860, no people on 
 the globe were in the more perfect enjoyment of civil and religious 
 liberty, of social, personal, and domestic security ; of more entire 
 protection in the possession and use of all their property, of 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 vouch- 
 safed by God to man, those people were indebted entirely to that 
 Constitution and that Union which their rebellion was undertaken 
 to destroy. 
 
 77?,M-d— That from the day of the organization of the Govern- 
 ment under that Constitution, in the year 1789, down to the day 
 when this rebellion began its infamous and unhallowed woi-k, 
 there never had been, on the part of that Government, a single act 
 of hostility, nor even of unkindness, 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 danger- 
 ous," this darkness and this danger 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 Constitution of the United 
 States, and to all citizens who value the 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 
 
20 
 
 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." 
 
 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 sufficiently extended. 
 It would, I think, be easy to show that the dreadful dangers you 
 apprehend are, in truth, to use your own terms, "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 un- 
 speakable value of the stake, have no right nor reason to doubt,) 
 those efforts will be crowned with speedy and triumphant success, 
 peace and harmony will be restored to the republic, the " prin- 
 ciples of civil liberty" will not have suffered, and the bugbears of 
 "usurpation," "arbitrary power," and other similar chimeras, 
 which excited imaginations and gloomy tempers have evoked, will 
 disappear forever. 
 
 Had you been an unknown and obscure citizen, any notice of 
 your pamphlet would have been supererogatory ; but because of 
 the influencQ 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 Grovernment, 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. 
 
 1 hear that others have published answers to your paper. Not 
 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. 
 
 New- York, Nov. 28tb, 1862. 
 
 Charles P. Kirkland. 
 

 
 

 
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