Francis Lieber to Judge Thayer, February 3, 1864

New York, February 3, 1864.

. . . You will be pleased to consider what I am going to write as strictly confidential; not that I ever hide my thoughts, but I speak out only when called upon, or where necessary. As to the war-power of the President to abolish slavery, I have not yet been able to understand it. As I have stated in the little Code (General Order No. 100, of 1863), a commander may declare servitude abolished in a conquered territory; and thus the President, I think, could abolish it in a territory occupied by our troops (following in the Rebellion the general laws of war); but to declare slavery abolished in territories where we are not, would require legislative power (within the Constitution), and the President has not this power. When Napoleon was urged to declare all Russian serfs free, at the beginning of the Russian campaign, those who urged him could of course only mean that he should hold out to the serfs their freedom in case he should conquer, and thus befriend the serfs. Nevertheless, slavery must be abolished. What then? The whole Rebellion is beyond the Constitution. The Constitution was not made for such a state of things; it was not dreamt of by the framers. We must cut and hew through the thicket as best we can, and see how, later, we can adjust matters, either by amending the Constitution — which I think we must do at all events — or by silently adopting what was done at the period when not the President but the people had assumed dictatorial power. I know very well how dangerous such a power is; but the life of the nation is the first substantive thing, and far above the formulas which very properly have been adopted. . . . In all struggles of long continuance, some points must be considered at certain periods as settled and past discussion. Without it, no progress is possible. No astronomer could pursue his science if he had to prove over again, at every single step, the correctness of the multiplication table. What are the things settled at this period of our struggle? I think these: The people are conscious that they constitute and ought to constitute a nation, with a God-appointed country, the integrity of which they will not and must not give up, cost what it may, — blood in torrents and wealth uncounted; that at this period nothing can decide but victory in the field. The more efficient, therefore, the army is made, and the more unequivocally the conquest of the South, the better for all, North and South.

That slavery must be extinguished, either absolutely, or so crippled that it must perish within a lustre or two; that the State-rights doctrine, understood as it is by the men who follow the mischievous theory of Mr. Calhoun, must perish. No one whatever, and no body of men, is sovereign within the United States. The word does not exist in our law. We in America know of sovereignty only in its international sense. The United States are sovereign with reference to other independent or sovereign States, and that is all. I speak of this advisedly, having repeatedly lectured on it in the law school, and consequently dug deep into the subject. . . .

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 339-41