Emancipation Proclamation: How Lincoln Used War Powers Against Slavery

Emancipation Proclamation: How Lincoln Used War Powers Against Slavery


The Emancipation of Proclamation

When Lincoln took office and gave his inaugural address he stated that he had “no purpose, directly or indirectly, to interfere with slavery in the States where it already existed” he then reiterated that pledge in his first message to Congress on July 4, 1861, when the Civil War was three months old (www.history.com). While Lincoln himself was against slavery and as a Republican he didn’t want to see it spread into new states and territories, many of his constitutes were not against it. Up until September of 1862 the main focus of the war was to preserve the Union, but after September Lincoln wanted to shift the focus from preserving the Union to abolishing slavery. And, he needed to do it in a manner that focused on preserving the Union. This made a difficult challenge for Lincoln to overcome and unsure of how he could use his executive powers he had to figure out a way to end slavery.

Since the south used slaves in the war effort to support their armies and to manage the home front so even more men could go off to war he came to the conclusion that he could use the emancipation as a military necessity and bypass any jurisdiction the Supreme Court may have and use executive action. The Emancipation of Proclamation was that executive action made by President Lincoln that took effect on January 1, 1863. It proclaimed the freedom of slaves in the ten states that were still in rebellion from the Union it did not end slavery in Border States, or southern states under Union control. By being able to say that it was necessary for the war and preserve the Union he knew didn’t have to appeal to people’s hearts that were on the fence with slavery, and he could bypass the Supreme Court.
Why didn’t Lincoln include Border States and states in Union control? What may have happened if Lincoln did include them?

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Guiding Questions

Document A: Emancipation Proclamation

1.The Civil War ended in 1865. Why did Lincoln decide to free the slaves before the war even ended?

2. In the Emancipation Proclamation, Lincoln does not mention Delaware, Kentucky,Maryland, and Missouri. These states had slaves but were not part of the Confederacy (they were not fighting against the Union). What happens to the slaves in these states?

3. Why do you think he calls the act a “military necessity” in the last section?

Document B: Frederick Douglass

1. According to Douglass, what was happening in the North in 1863?

2. What was Lincoln worried about?

3. What is Douglass’ conclusion about Lincoln and the Emancipation Proclamation?

4. Douglass wrote about his meeting with Lincoln almost 20 years later. How might the passage of time affect Douglass’ memory of Lincoln and his evaluation of the Emancipation Proclamation?


More On This.

These views echo arguments made during the Civil War itself, even by Republicans who believed that the Constitution could not address such an unprecedented conflict. And Lincoln surely claimed that he could draw on power beyond the Constitution in order to preserve the nation. As he wrote in 1864: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”

But Lincoln was no dictator. While he used his powers more broadly than any previous president, he was responding to a crisis that threatened the very life of the nation. Like Washington and Jackson before him, Lincoln relied on his constitutional duty to execute the laws, his power as chief executive, and his presidential oath as grants of power to use force, if necessary, against those who opposed the nation’s authority.

Lincoln refused to believe that the Constitution withheld the power for its own self-preservation. But rather than seek a greater power outside the law, he believed that the Chief Executive Clause gave the authority to decide that secession justified war, and the wide range of measures he took in response: raising an army, invasion and blockade of the South, military government of captured territory, and suspension of the writ of habeas corpus.

He issued the final emancipation proclamation, “by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States.”

He rooted the constitutional justification for the Emancipation Proclamation as “a fit and necessary war measure for suppressing said rebellion.” While he remained clear that the war was “for the object of practically restoring the constitutional relation between” the United States and the rebel states, he freed 2.9 million slaves, 75 percent of all slaves in the United States and 82 percent of the slaves in the Confederacy.

Emancipation more than denied the South a vital resource. It also called black soldiers to the Union standard. Lincoln reported that his generals “believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion.” Black soldiers saved the lives of white soldiers, and, indeed, the lives of white civilians.

“You say you will not fight to free negroes,” Lincoln wrote to critics. “Some of them seem willing to fight for you.” But he emphasized that emancipation was not the goal, but the means.

When the war ended, “it will have been proved that, among free men, there can be no successful appeal from the ballot to the bullet and that they who take such appeal are sure to lose their case, and pay the cost.” When that day comes, Lincoln promised, “there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet,” they helped achieve victory.

At the same time, Lincoln’s constitutional authority explains the Proclamation’s careful boundaries. He did not free any slaves in the loyal states, nor did he seek to remake the economic and political order of Southern society. Emancipation would no longer hold once the fighting ceased, and the other branches could even frustrate it during the war. Congress might use its own constitutional powers to establish a different regime—a reasonable concern with Democratic successes in the 1862 midterm elections—and allow the states to restore slavery once the war ended.

Lincoln never claimed a broad right to end slavery forever only the Thirteenth Amendment to the Constitution could do that. The Emancipation Proclamation remained only an exercise of the president’s war power necessary to defeat the enemy.

The link between the Emancipation Proclamation and Lincoln’s broad view of presidential power should cause us to reflect on current controversies over the executive. The presidency was meant to be weak at home and strong abroad.

As Alexander Hamilton wrote in "Federalist 70," it was to be that one part of government which could respond with “decision, activity, secrecy, and dispatch” to unforeseen crises and emergencies, the most dangerous of which was war. In "Democracy in America," Alexis de Tocqueville observed that the presidency was a cypher that would become a great office only once foreign affairs became important to the United States.

Lincoln’s Emancipation Proclamation, and his expansion of presidential power, sits firmly within the Framers’ vision. As we await another inauguration, the latest occupant of the Oval Office could take a lesson from the first Republican President, who used his power to become “the Great Emancipator.”


Emancipation Proclamation (January 1, 1863)

Context:The Emancipation Proclamation of January 1, 1863 culminated more than eighteen months of heated policy debates in Washington over how to prevent Confederates from using slavery to support their rebellion. Lincoln drafted his first version of the proclamation in mid-July 1862, following passage of the landmark Second Confiscation Act, though he did not make his executive order public until September 22, 1862, after the Union victory at Antietam. The January 1st proclamation then promised to free enslaved people in Confederate states (with some specific exceptions for certain –but not all– areas under Union occupation) and authorized the immediate enlistment of black men in the Union military. The proclamation did not destroy slavery everywhere, but it marked a critical turning point in the effort to free slaves. (By Matthew Pinsker)

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Other Primary Sources

Praise from the Bloede children, January 4, 1863 (Gertrude, age 17, Katie, age 16, and Victor, age 14)

How Historians Interpret

“But Lincoln was under increasing pressure to act. His call for additional volunteers had met a slow response, and several of the Northern governors bluntly declared that they could not meet their quotas unless the President moved against slavery. The approaching conference of Northern war governors would almost certainly demand an emancipation proclamation. He also had to take seriously the insistent reports that European powers were close to recognizing the Confederacy and would surely act unless the United States government took a stand against slavery.”

“A striking new feature of the Proclamation was its hint that the administration would aid slave insurrections: ‘The executive government of the United States, including the military and naval authority thereof, will recognize the freedom of such persons [freed slaves], and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.’ Lincoln doubtless meant that the Union army would not return runaways to bondage, though many would interpret his words to mean that the North would incite slave uprisings.

“. . . I believe that Abraham Lincoln understood from the first that his administration was the beginning of the end of slavery and that he would not leave office without some form of legislative emancipation policy in place. By his design, the burden would have to rest mainly on the state legislatures, largely because Lincoln mistrusted the federal judiciary and expected that any emancipation initiatives which came directly from his hand would be struck down in the courts . . . But why, if he was attuned so scrupulously to the use of the right legal means for emancipation, did Lincoln turn in the summer of 1862 and issue an Emancipation Proclamation—which was, for all practical purposes, the very sort of martial-law dictum he had twice before canceled? The answer can be summed up in one word: time. It seems clear to me that Lincoln recognized by July 1862 that he could not wait for the legislative option—and not because he had patiently waited to discern public opinion and four the North readier than the state legislatures to move ahead. If anything, Northern public opinion remained loudly and frantically hostile to the prospect of emancipation, much less emancipation by presidential decree. Instead of exhibiting patience, Lincoln felt stymied by the unanticipated stubbornness with which even Unionist slaveholders refused to cooperate with the mildest legislative emancipation policy he could devise, and threatened by generals who were politically committed to a negotiated peace . . . Thus Lincoln’s Proclamation was one of the biggest political gambles in American history.


The Emancipation Proclamation, January 1, 1863

The Emancipation Proclamation was shaped by both pragmatic considerations and Lincoln&rsquos deeply held, lifelong hatred of slavery. It was timed, after the Union victory at Antietam, to strike a military blow against the South&rsquos economic and social infrastructure, and was taken in the full understanding (given the experience of "contrabands") that the advance of the Union armies would free more and more fugitive slaves. The Proclamation transformed the war to preserve the Union into a war to save the Union and end slavery.

This elaborately decorated copy of the Emancipation Proclamation was designed by a fourteen-year-old boy and signed by Lincoln himself. In the proclamation, which went into effect on January 1, 1863, Lincoln used no uncertain terms in declaring that "all persons held as slaves within any State or designated part of a State . . . in rebellion against the United States, shall be then, thenceforward, and forever free."

A full transcript is available.

Excerpt

[O]n the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.


Emancipation

Lincoln’s Order
On September 22, 1862, five days after the Union victory at the Battle of Antietam, Abraham Lincoln issued the preliminary Emancipation Proclamation. He presented the proclamation as a wartime necessity, under his authority as Commander-in-Chief. It ordered that as of January 1, 1863, all enslaved individuals in all areas still in rebellion against the United States “henceforward shall be free,” and under the protection of the military. Those willing to enlist would be received into the armed forces.

The proclamation was limited in scope and revolutionary in impact. The war to preserve the Union also became a war to end slavery.

Commemorative Print

Publishers throughout the North responded to a demand for copies of Lincoln’s proclamation and produced numerous decorative versions including this engraving by R. A. Dimmick in 1864.
National Museum of American History, gift of Ralph E. Becker

“We are all liberated by this proclamation. Everybody is liberated. The white man is liberated, the black man is liberated, the brave men now fighting the battles of their country against rebels and traitors are now liberated.”

Frederick Douglass, February 6, 1863

Telegraph Office Inkstand

In the summer of 1862, while waiting for the latest news to come into the War Department telegraph office next to the White House, Lincoln began to draft the proclamation using this inkstand. The president sat at the desk of Maj. Thomas T. Eckert, and Lincoln later explained to Eckert that he had been composing a document “giving freedom to the slaves of the South.”
National Museum of American History

Self-Emancipation
For most white Americans, the Civil War was a war for the Union. But for black Americans, it was a battle for freedom. Determined to end slavery, tens of thousands of enslaved African Americans used the war to escape their bondage. As the Union Army drove into the Confederacy, enslaved people stole away and entered Union lines. These thousands of African Americans made their freedom a fact. Within two years, President Lincoln issued the Emancipation Proclamation and made ending slavery government policy.

“Imagine, if you will . . . an army of slaves and fugitives, pushing its way irresistibly toward an army of fighting men. . . . Their arrival among us . . . was like the oncoming of cities.”

Entering Union Lines

Frank Leslie's Illustrated Newspaper, June 8, 1861, Library of Congress

The First “Contrabands”
One month into the Civil War, three men escaped across the mouth of the James River and entered Fort Monroe, Virginia. With this act, Shepard Mallory, Frank Baker, and James Townshend declared themselves free and triggered a national debate over whether the United States had the right to emancipate the enslaved. General Benjamin Butler refused to return the men to slavery and classified them as enemy property or in his words “the contraband of war.” The policy and the nickname stuck. Despite the uncertain status of being classified as “contraband,” thousands of African Americans escaped slavery, forcing the hand of the federal government.

The Front Lines of Freedom
Tent cities sprang up across the South as thousands of enslaved people crossed Union lines and forced the issue of freedom. The people had spoken, using one of the few political tools available to enslaved people—the power of coming together to be heard. The sheer number of African Americans arriving in camps and cities pressured politicians, generals, and the U.S. government to act. Lincoln personally witnessed the growth of the tent cities as he crossed Washington, D.C., each day.

Sibley Tent

As African Americans walked away from slavery and into Union lines, the U.S. Army found itself fighting a war surrounded by men, women, and children. The self-emancipated forced the army and eventually President Lincoln to resolve their status as people not property. The military provided cast-off tents, like this Sibley tent, for African Americans who reached Union lines. One tent could hold 12 to 20 people.
On loan from Shiloh National Military Park

Contraband Camp

By the first months of war, freed men and women built tent cities or “contraband camps,” sometimes with assistance from the U.S. Army. This photograph taken in 1865 in Richmond, Virginia, shows the widespread use of the Sibley tent to house freed people.
U.S. National Archives and Records Administration

Map of Camps

African Americans established makeshift communities as thousands sought freedom. The locations of these camps followed the path of the army’s advance into the Confederacy. A few were established outside of the South to help house black Americans migrating north out of slavery.
National Park Service

Private Gordon, 1863

Private Gordon’s scarred back became a powerful symbol of the human cost of slavery during the Civil War. This photograph, taken during Gordon’s U.S. Army medical examination, was widely sold and circulated to support the Union effort and assist fugitives. After being brutally beaten by an overseer, Gordon escaped slavery in March 1863 and enlisted in the U.S. Army in Baton Rouge, Louisiana.
National Portrait Gallery, Smithsonian Institution, NPG.2002.89

Celebrating Emancipation

The news of the Emancipation Proclamation was celebrated across Europe and Latin America where, in most countries, emancipation had already occurred.

Les Negres affranchis colportant le decret d'affranchissement du president Lincoln,
(Freed Negroes celebrating President Lincoln's decree of emancipation),
engraving from Le Monde Illustre, March 21, 1863
Réunion des Musées Nationaux/Art Resource, N.Y.

Fugitive Slaves Crossing the Rappahannock River, Virginia in August, 1862”

Recognizing an important piece of history, Timothy O’Sullivan photographed African Americans freeing themselves in 1862. This image of people leaving slavery by the wagonful was picked up by many newspapers and became a common way to portray the mass migration.
Library of Congress

“Contrabands Building a Levee on the Mississippi Below Baton Rouge”


Democrats Need a History Lesson on the Emancipation Proclamation

Speaking to Fox News’s Greta Van Susteren after the president’s State of the Union address Tuesday night, House minority leader Nancy Pelosi attempted to justify his unilateral action raising the minimum wage of federal contractors she acknowledged that it would be “much better for Congress to act and for it to be the law of the land more generally.” “But, I remind you,” Pelosi added, “the Emancipation Proclamation was an executive order, many things that happened over time that would not have ever happened waiting for Congress, but then Congress followed through with, in fact, abolishing, you know, slavery.”

Actually, no, we don’t know that. Congress, “in fact,” did not abolish slavery. The Thirteenth Amendment to the Constitution did.

No less confused about our history is Pelosi’s assistant, Assistant Democratic Leader Representative James Clyburn (D, S.C.), who told Huffington Post that he feels “very strongly” that the president should take executive action to prohibit discrimination against lesbians, gays, bisexuals, and transsexuals, even though the Congress has refused to pass legislation (the Employment Non-Discrimination Act, discussed here) to do that. Clyburn pointed out that “it was an 1863 executive action by President Abraham Lincoln, the Emancipation Proclamation, that led to the end of slavery. I don’t know where I would be today if the executive order had not been used to get rid of slavery,” Clyburn concluded.

Counterfactual history is always uncertain, but there is no reason whatsoever to think that Representative Clyburn would not be exactly where he is today if the Emancipation Proclamation had not been proclaimed. That’s because it did not actually emancipate any slaves. As the National Archives has pointed out, the Emancipation Proclamation “applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control.”

In other words, it purported to free slaves only where the Union lacked the power to do so.

The fact that the Emancipation Proclamation was not a necessary precursor to the freedom of Representative Clyburn’s ancestors or his career is not, however, the primary reason that it is a highly problematic precedent for the sorts of legislation bypasses being pursued by President Obama. Unless, that is, the president and his supporters wish to claim that he is waging war against domestic enemies of the state.

The Emancipation Proclamation was a war measure justified, and justified only, by the president’s power as commander-in-chief. As University of California at Berkeley law professor (and former Bush Justice Department official ) John Yoo pointed out last year on the Proclamation’s 150th anniversary, Lincoln “was responding to a crisis that threatened the very life of the nation.” His constitutional justification for the Emancipation Proclamation was that it was “a fit and necessary war measure for suppressing” a rebellion against the United States. According to Professor Yoo, “Lincoln never claimed a broad right to end slavery forever only the Thirteenth Amendment to the Constitution could do that. The Emancipation Proclamation remained only an exercise of the president’s war power necessary to defeat the enemy.”

Of course, President Obama does have a disturbing tendency to think of the recalcitrant (read “Republican”) House of Representatives and the recalcitrant citizens who disagree with him as enemies, and so maybe the Emancipation Proclamation is a fitting model for him after all.


Emancipation Proclamation

EMANCIPATION PROCLAMATION. President Abraham Lincoln's grant of freedom, on 1 January 1863, was given to slaves in states then in rebellion. In conformity with the preliminary proclamation of 22 September 1862, it declared that all persons held as slaves within the insurgent states—with the exception of Tennessee, southern Louisiana, and parts of Virginia, then within Union lines—"are and henceforth shall be, free." The proclamation was a war measure based on the president's prerogatives as commander in chief in times of armed rebellion. Admonishing the freedmen to abstain from violence, it invited them to join the armed forces of the United States and pledged the government to uphold their new status. Unlike the preliminary proclamation, it contained no references to colonization of the freed slaves "on this continent or elsewhere."

Enshrined in American folklore as the central fact of Lincoln's administration, the actual proclamation was a prosaic document. On the day it was issued, it ended slavery legally and effectively only in limited areas, chiefly along the coast of South Carolina. Eventually, as Union forces captured more and more Southern territory, it automatically extended freedom to the slaves in the newly conquered regions. Moreover, the mere fact of its promulgation ensured the death of slavery in the event of a Northern victory. The Emancipation Proclamation may thus be regarded as a milestone on the road to final freedom as expressed in the Thirteenth Amendment, declared in force on 18 December 1865.

Although Lincoln had always detested the institution of slavery, during the first year of the war, he repeatedly emphasized that the purpose of the conflict was the maintenance of the Union rather than the emancipation of the slaves. Aware of the necessity to retain the support of both the border states and the Northern Democrats, he refrained from pressing the antislavery issue. Thus, he countermanded General John C. Frémont's emancipation order in Missouri and General David Hunter's proclamation in the Department of the South. But Lincoln signed confiscation bills, by which the private property of Southerners was subject to forfeiture, as well as measures freeing the slaves in the District of Columbia and in the

federal territories. In addition, he urged loyal slave states to accept proposals for compensated emancipation.

These piecemeal measures did not satisfy the radical Republicans. Tirelessly advocating a war for human freedom, they pressured the president to implement their program. Lincoln sought to satisfy his radical Republican supporters and reap the diplomatic rewards of an anti-slavery policy—foreign powers were reluctant to recognize the slaveholding Confederacy—all without alienating the border states. The peculiar wording of the Emancipation Proclamation shrewdly balanced these conflicting interests.

The president wrote the first draft of the preliminary proclamation during June 1862. On 13 July he revealed his purpose to Secretary of State William H. Seward and Secretary of the Navy Gideon Welles. Nine days later, he read the document to the cabinet but, upon Seward's advice, postponed its publication. To promulgate the proclamation so shortly after General George B. McClellan's early summer failure to take Richmond would have been impolitic. It is also possible that Salmon P. Chase, secretary of the treasury, desiring piecemeal emancipation, persuaded Lincoln to wait a bit longer.

During the following weeks various groups urged Lincoln to adopt an emancipation policy. However, even though he had already decided to comply with their request, Lincoln refused to commit himself and remained silent about the document then in preparation. Even in his celebrated reply to Horace Greeley's "Prayer of Twenty Millions" (22 August 1862), Lincoln emphasized that his paramount objective in the war was to save the Union, not to destroy slavery. Although he conceded that his personal wish had always been that all men everywhere could be free, it was not until after the Battle of Antietam (17 September 1862) that he believed the time had come for the proclamation. Informing his cabinet that his mind was made up, Lincoln accepted a few minor alterations and published the document on 22 September, promising freedom to all persons held as slaves in territories still in rebellion within the period of 100 days.

The reaction to the preliminary proclamation was varied. Denounced in the South as the work of a fiend, in the North it was generally acclaimed by radicals and moderates. Conservatives and Democrats condemned it, while all blacks enthusiastically hailed it as a herald of freedom.

During the 100-day interval between the two proclamations, some observers questioned Lincoln's firmness of purpose. Republican reversals in the election of 1862, the president's proposal in December for gradual compensated emancipation, and the revolutionary nature of the scheme led many to believe that he might reconsider. But, in spite of the conservatives' entreaties, Lincoln remained steadfast. After heeding some editorial suggestions from his cabinet, especially Chase's concluding sentence invoking the blessings of Almighty God, in the afternoon of 1 January 1863 he issued the proclamation.

The appearance of the Emancipation Proclamation clearly indicated the changed nature of the Civil War. It was evident that the conflict was no longer merely a campaign for the restoration of the Union but also a crusade for the eradication of slavery. In the remaining period of his life, Lincoln never wavered from this purpose. Having already said that he would rather die than retract the proclamation, he insisted on its inclusion in all plans of re-union and amnesty. His administration became ever more radical and he actively furthered the adoption of the Thirteenth Amendment. It is, therefore, with considerable justice that Lincoln has been called the Great Emancipator.

The president's calculations proved correct. Following the issuance of the Emancipation Proclamation, and owing to increased evidence of federal military prowess, neither Great Britain nor any other power recognized the Confederacy nor did any border states desert the Union. The document thus stands as a monument to Lincoln's sense of timing, his skill in maneuvering, and his ability to compromise. The freedom of some 4 million human beings and their descendants was the result.


Lincoln and War Powers

Early in the “Lincoln” movie (Scene 7), President Lincoln provides a lengthy defense of his wartime emancipation policy to his Cabinet when he encounters some objections to the move toward abolition from Secretary of Interior John P. Usher. Read the following excerpt closely and try to identify Lincoln’s key arguments:

CLOSE READING ASSIGNMENT

I decided that the Constitution gives me war powers, but no one
knows just exactly what those powers are. Some say they don’t
exist. I don’t know. I decided I needed them to exist to uphold my
oath to protect the Constitution, which I decided meant that I could
take the rebels’ slaves from ‘em as property confiscated in war. That
might recommend to suspicion that I agree with the rebs that their
slaves are property in the first place. Of course I don’t, never
have, I’m glad to see any man free, and if calling a man property, or
war contraband, does the trick… Why I caught at the opportunity.

Now here’s where it gets truly slippery. I use the law allowing
for the seizure of property in a war knowing it applies only to the
property of governments and citizens of belligerent nations.

But the South ain’t a nation, that’s why I can’t negotiate with
’em. So if in fact the Negroes are property according to law, have I
the right to take the rebels’ property from ‘em, if I insist
they’re rebels only, and not citizens of a belligerent country?
And slipperier still: I maintain it ain’t our actual Southern states in
rebellion, but only the rebels living in those states, the laws of
which states remain in force. The laws of which states remain in
force. That means, that since it’s states’ laws that determine whether
Negroes can be sold as slaves, as property – the Federal government
doesn’t have a say in that, least not yet – (a glance at Seward,
then:)- then Negroes in those states are slaves, hence property, hence my
war powers allow me to confiscate ‘em as such. So I confiscated ‘em.
But if I’m a respecter of states’ laws, how then can I legally free
‘em with my Proclamation, as I done, unless I’m cancelling states’
laws? I felt the war demanded it my oath demanded it I felt right
with myself and I hoped it was legal to do it, I’m hoping still.

GUIDING QUESTIONS

After you have organized an outline or chart of Lincoln’s key arguments in this passage, try to answer the following questions:

1. In the context of the Civil War, what is the meaning of the following words or phrases: war powers, confiscation, contraband, and belligerent? Are there other words in the excerpt that need definition?

2. How does Lincoln describe the process which was leading him to conclude that only a constitutional amendment could truly end slavery in the United States?

3. Why was the problem of ending slavery during the Civil War so “slippery” as Lincoln describes it? Were the obstacles that Lincoln is describing here mainly political, legal or social?

SHORT WRITING ASSIGNMENT

The passage attributed to Lincoln in this script is not something he actually said, but has been imagined by the scriptwriter Tony Kushner to represent various arguments in favor of emancipation policy that President Lincoln and his supporters used during the course of the Civil War. Consider the following real quotations from Abraham Lincoln and compose a short informational essay that tries to explain how the script seems to be summarizing aspects of these historical statements:

Abraham Lincoln’s First Inaugural Address, March 4, 1861

“Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that—

I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.

Abraham Lincoln’s Special Message to Congress, July 4, 1861

“Lest there be some uneasiness in the minds of candid men as to what is to be the course of the Government towards the southern States after the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever, to be guided by the Constitution and the laws and that he probably will have no different understanding of the powers and duties of the Federal Government relative to the rights of the States and the people, under the Constitution than that expressed in the inaugural address.”

Abraham Lincoln to James C. Conkling, August 26, 1863

“I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there–has there ever been–any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy?”

Abraham Lincoln to Albert Hodges, April 4, 1864

“I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected yet often a limb must be amputated to save a life but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.”

ANOTHER VIEW

From Matthew Pinsker, Director, House Divided Project:

Not every historian would accept the way Tony Kushner conveys Lincoln’s views. One of the biggest arguments concerns this question of “confiscating” slaves as property in order to free them. According to the script, Lincoln denies that slaves should ever be considered as property but admits that he “caught at the opportunity” in order to set in motion his emancipation policy. On the surface, this appears to be what he wrote to Conkling in 1863 (“The most that can be said, if so much, is, that slaves are property,”) but a careful reading of that document –especially in context– suggests that was not what he believed or what he actually did –but rather he was saying this was what even his political enemies had to concede if that was truly their belief (“The most that can be said…”).

What the script does not quite have the space to explain is that “confiscation” was a congressional policy, created in two separate laws (August 6, 1861 and July 17, 1862) that ultimately authorized the president to make rebel-owned slaves “forever free.” This was the real trigger for Lincoln’s initial emancipation decision in July 1862. However, congressional confiscation made a careful distinction between punishing rebels by confiscating their real property (such as their plantations) and by freeing their slaves. The confiscation law treated these enslaved people not as property but explicitly as “captives of war.” In other words, federal law never recognized the principle of property in man. Only states laws did that. This is a critical insight made clear in James Oakes’s book, Freedom National (2012) and which is documented here in this Emancipation Digital Classroom. This also helps explain why the Emancipation Proclamation refers to “persons held as slaves,” and does nothing to recognize them as property or to invoke asset forfeiture law in order to “seize” them. Instead, the proclamation calls their freedom “an act of justice,” and addresses them directly as people with natural rights. See this video from Matthew Pinsker for a more complete explanation of that point.

The script also appears to make a mistake by having Lincoln assert that the laws of the states in rebellion remained “in force.” This was never his view. In fact, almost all of the extraordinary presidential measures he embraced from the beginning of the war until its conclusion –whether it was calling forth the militias, suspending habeas corpus, emancipating slaves, or setting conditions for reconstruction– were done in the name of substituting executive action for laws that were clearly not in force. When President Lincoln invoked the international “laws of war” as Commander-in-Chief, he was able to do so to suppress a domestic rebellion. Some measures –such as setting foot a blockade– did suggest implicit recognition of Confederate sovereignty– but even as Lincoln was denying that sovereignty in public, he was never claiming to be bound by southern state laws during a time of armed rebellion. According to Lincoln, Confederate states were neither independent of nor controlled by the federal government during the Civil War. They were quite literally “in rebellion” and subject to the laws of war.

DISCUSSION QUESTIONS

What do you think about these sometimes highly technical arguments over the Constitution and international law during times of war? Do they sound like unnecessary legal hair-splitting? Or does the depth and complexity of this debate reflect the enduring importance of constitutional law in American history?


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