New York, August 5th, 1863.
No moral or material change that needs comment from me has taken place here during the past week; but before I say something in continuation of the subject of my last letter, let me reply to the question which you appended to that which was published in the Spectator of August 8th. The steamer that carries this to you will also bear one of public importance, which makes a notice of your question -timely—I mean President Lincoln's letter to the Union State Convention of Illinois, in which he clearly states the banes to be settled by this war, and maintains his position rumly upon the ground of his Emancipation Proclamation. He says that "the .promise [made to the slaves in that proclamation] must be kept." Let me say, before answering your question, that in this declaration the President is, in my judgment, merely and simply right and honest. He must keep the promise of that proclamation, in spirit and in letter, to the very utmost of his ability, or he is a faithless man.
But what is the extent of his ability? To give an answer to this question we must look at the promise that he made. What was it? He proclaimed that certain persons held as slaves "are and henceforth shall be free," and he promised that "the Executive Government of the United States, including the military and naval authorities thereof, will recognize and main- tain the freedom of the said persons." The question, therefore, is, had a President of the United States the right, in virtue of the Constitution which confers his power and gives him, in fact, his very official existence, to brush aside State laws, except for present military necessity, and to declare that the military and naval authorities of the Union will recognize and maintain the condition of things which he assumed the right to create? Now, what I said (and let me remark, by the way, that I notice this matter, not for the sake of self-justification, or for the love of preaching politics, but in the hope of helping your readers to understand this matter thoroughly)—what I said was that the "prospective clause" of the proclamation would probably be pronounced null and void by the Supreme Court. I find, on looking back, that at the time when this proclamation was issued, the first day of this year, the editor of the New York Times, a Republican and a hearty supporter of the Government, saw and hinted at this invalidity. In an article which bears the marks of Mr. Raymond's own pen, that paper then said, "Sooner or later his [the President's] action in this matter will come up• for review before the Supreme Court ; and it is of the utmost importance to the President, to the slaves, and to the whole country, that it should come in a form to be suettained. It must be a legal and constitutional act in form as well as in substance. We wish, for this reason, that the President had given it the form of a military order, addressed to his subordinate generals, enjoining upon them specific acts in the performance of their military duties, instead of a proclamation addressed to the world at large, and em- bodying declarations and averments, instead of commands." The difficulty is that the President may have had no more power to declare the slaves free beyond, the lines of our armies, than a man to whom you have given a specific power-of-attorney to buy a piece of land would have the power to convey away half your fortune. If the President had not the power which he assumed to have, and any man disputes the ques- tion by claiming his slave under the odious, but still per- fectly constitutional, Fugitive Slave Law, the Supreme Court will so decide ; and what, then, will become of that prospec- tive clause promising that the military and naval authorities of the United States "will recognize and maintain" the freedom of the slaves ? In the time of peace, is the will of the President, how- ever righteous, to be maintained by military force against the law, and hi the face of the decision of the highest court? No, not among men of English, or, if you choose, of Anglo-Saxon race. If the proclamation is not lawful, however rightful, it is void. As the President himself says, in the very letter which has just been published, "The proclamation as law, is valid or it is not valid. If it is not valid it needs no retraction. If it is valid it cannot be retracted, any more than the dead can be brought to life." Sup- pose the President were to make a promise of peace on certain terms to France, or any other nation with whom we might be at war. Having made the promise, he should do his utmost to fulfil it. But that would be his personal affair. The promise would be of no more value than if it were made by Brown, Jones, or Robinson, because the Constitution places the power of peace and war in the hands of Congress.
The Constitution is absolute, and it alone is absolute. It is "the supreme law of the land,"—supreme over the Pre- sident, over Congress itself, even over the Supreme Court, nay, over the very people of the United States themselves. In considering the politics of the United States, this last is the grand point ever to be remembered, but which is con- tinually forgotten. It was Mr. Seward, I believe, who in the Senate talked of obeying a "higher law" than the Constitution of the United States. But for a Senator of the United States, as Senator, there can be no higher law than the Constitution. If service under that Constitution is irreconcilable with his sense of right, he must resign his seat and go to work to bring about a change. No creature can act according to a higher law than that by which and for which it is created ; and a Senator or the President of the United States, or of the "so-called Confederate States," is the mere creature of the Constitution of that Union or that Confederacy. Especially is this true of a Senator, who does not represent, as the member of the Lower House does, a certain number of the people of the United States who elect him, and whose, the Senator's, position is totally and radically unlike that of a member of the House of Lords or of the House of Commons. A Senator represents a State, a State as corporate body, and he is not elected by the people of that State but appointed by its legislature. At the risk of telling some of your readers what they already know, I will add here that all the States are equally represented in the Senate ; so that little Delaware, with its popula- tion of less than 91,000, has equal weight in the Senate with New York, with a population of 4,000,000. And it is especially provided by the Constitution that this equality of representation shall not be taken away from any State without its own consent, even by an amendment of that instrument. The object of these strict constitutional provisions and checks is the protection of the rights of minorities, which, contrary to the opinion continually expressed by European writers, are guarded here with ceaseless solicitude and minute attention. With you a minority, or rather the majority of a minority, of the nation rules; which we think unjust, and can- sidered radically, and not according to mere custom, un-English. With us the majority of the whole body of citizens rules. But to guard the interests of the minority we have, for the nation, and also for each commonwealth of which it is composed, a written constitution, which limits the power, executive and legislative, of the majority by certain clear, immoveable bounds, and thus prevents that majority from becoming tyrannical. Thus the rights of the minority of the nation, i. e., of the people of the United States, the rights of the minority of the people of each commonwealth or State, and the rights of the minority, however small, of the States as corporate bodies, are carefully protected. Thus we prevent our Government from ever becoming that of a consolidated power swayed by a mere majority. Our national Constitution must be changed ; but only on one point is the needed change one of principle—that of the recognition of slavery, which must be done away with. In other respects it only needs to be made more flexible, to spring more quickly at the touch of circum- stance, to respond more surely and steadily to the demand of a great emergency. But no notion could be more incorrect than that so prevalent among you, that our Constitution "broke down. at
the first trial." It was the first trial, and the first was to meet a rebellion which spread over a tract as large as half of Europe, and a conspiracy of thirty years' standing. The Constitution strained, but it did not break. Did the British Constitution break down in 1745, when, after the reigning family had been upon the throne, by the deliberate act of the British people, about as long as we have been a nation, there. was a second insurrection, and there were more Jacobins in London than there are Copperheads in New York?
The absoluteness and comprehensiveness of these National and State constitutions account for one defect which you, with some reason, have charged upon the character of our statesManship. You say that our statesmen show only forensic ability ; that our Congress is an assembly of notable attorneys ; and the Spectator itself has declared that in Mr. Lincoln we have an attorney for President. You look for a discussion of great principles, and you find only something like pleading at nisi prius. But, as far as we are concerned, we settled the great principles in the beginning. Magna Charta and the Bill of Rights are at the bottom of everything ; and then, as there is no kingly prerogative to watch, no privileged order to sustain or to restrain, no alliances or foreign policy to manage, no church establishment or question of religion in any form, and no problem of suffrage because already every citizen votes, what matter of principle is there to be discussed ? It is left for our statesmen only to see that their laws conform to the written Constitution of the nation or the commonwealth, as the case may be. Clearly, then, their labours must be in the nature of the construing and executing a written instrument. Their management must be lawyer-like, or, if you please, attorney-like, their speeches forensic, their opinions at the best judicial.
And now, as to our " attorney " president and his letter, which, to judge by the past, you all will read and comment upon. We cannot read that very familiar and easy-going epistle without feeling that it was written by a right-hearted, sagacious, determined man, as open and as candid as the day. Pass it by, if you can, as we pass it by, that his style is such as would get a lad in an upper class in any of our public schools a formidable array of black marks, almost bad enough for a writer of " sensation " despatches to a New York newspaper, forget this, and say whether the man who wrote that letter and did that which the letter is written about is not both wise and upright. He surely does not stand much upon his dignity ; but he does upon his honour ; and it will not hurt him materially among the cultivated people of the older States, while it will help him in the valley of the Mississippi, that he calls our gun- boats "Uncle Sam's web feet," and, in allusion to their penetration of swamps and little creeks, says that they have been "wherever the ground was a little damp." He is daily gaining the confidence of the nation. It is not long since that a great many, even of the Republicans, doubted his capacity and his prudence. Success and the development of the course of his administration are now vindi- cating both his firmness and his wisdom ; and even such of the Democrats as are not pro-slavery men are beginning to have a certain pride in our awkward, uncultured President. He is so loyal to truth and right, has so little in him of the "scurvy politi- ,cian," that "seems to see the things he sees not." I see this, who did not vote for him, and who have doubted him.
I must close this letter here without touching again at this time upon the question of race, or your readers will weary of me. But I shall return to it, because to understand it is in a great measure to understand this nation, which seems to you so difficult a problem.
It is just announced from Washington that returns show that General Meade fought the battle of Gettysburg with 58,000 men, all told. The disparity of numbers in favour of Lee was then even
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