Tag Archives: Emancipation Proclamation

Lincoln, law, and necessity

By Michael Lynch

I asked the students in my introductory Lincoln course to write an essay on Lincoln’s use of presidential power.  I told them to decide whether Lincoln abused his authority and overstepped the Constitution, whether he was too timid, or whether he used his power judiciously, and to defend their answer in a short paper.

Although I assured the class that there was no “right” answer to the question, and that they were free to excoriate Lincoln as harshly as they wanted, the results came back overwhelmingly in his favor.  Of some two dozen students, only three found his use of power excessive.  The rest of the class generally agreed that Lincoln acted properly, given the circumstances he faced.

Interestingly, though, the two groups defended their positions quite differently.  The students who argued that Lincoln assumed too much presidential power cited specific passages of the Constitution to make their case.  Lincoln’s suspension of habeas corpus, in particular, came in for criticism.  As these students noted, the Constitution permits such an act “when in Cases of Rebellion or Invasion the public Safety may require it,” but this passage is found in the article dealing with powers of Congress.  The legality of a presidential suspension of habeas corpus while the legislature was out of session was therefore a matter of controversy during the Civil War, and it remains so today.

Adalbert Volck depicted Lincoln as Don Quixote with his foot on the Constitution in this 1861 etching. Image from the National Portrait Gallery, Smithsonian Institution.

The students who defended Lincoln, by and large, did not try to cite law and precedent to demonstrate that his actions were legal.  Instead, they argued from necessity.  Rebellion on the scale of the Civil War was something no other president had faced, and most students felt he had no choice but to act as he did in order to preserve the Union.

A few of the students who defended Lincoln did find him a bit too hesitant in one respect; they wished he had issued his emancipation decree sooner.  But they also noted that their preferences in timing weren’t necessarily practical, and agreed that Lincoln had good reasons for waiting as long as he did.

I found it interesting that the two groups of students differed in their approaches, because Lincoln himself used both law and necessity in defending his more controversial policies.  Referring to his suspension of habeas corpus in a message to Congress in 1861, he noted that “the attention of the country has been called to the proposition that one who is sworn to ‘take care that the laws be faithfully executed,’ should not himself violate them.”  At the same time, however, he observed that all the Constitution’s provisions were essentially going unenforced “in nearly one-third of the States.”  Was it acceptable for “all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?  Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?”

In any case, Lincoln continued, his suspension of habeas corpus was not a case of “disregarding the law.”  He believed he had acted within the limits established by the Constitution.  After all, that document permits habeas corpus to be suspended in a case of rebellion, and while it does not explicitly permit the executive branch to exercise this power, neither does it explicitly forbid it.  Besides, since “the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

Lincoln thus hedged his rhetorical bets in his message to Congress.  He made a case for the constitutionality of his actions, and if that failed to convince his critics, he asked whether they preferred to see one law stretched and the Constitution saved or watch the whole Constitution tossed aside by the rebellion while the Union’s hands remained tied.

If my students’ essays are any indication, many modern Americans will support leaders who use extraordinary means so long as they believe the ends are worthwhile.

—Michael Lynch graduated from LMU with a degree in history, worked at the Abraham Lincoln Library and Museum as an assistant curator, and now teaches survey-level history courses on campus. He holds an M.A. in history from the University of Tennessee and blogs about historical topics at pastinthepresent.wordpress.com.

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Foner on Lincoln the emancipator

Prize-winning historian Eric Foner has written a short overview of Lincoln’s views on slavery and his role in bringing about its end:

Like all great historical transformations, emancipation was a process, not a single event. It arose from many causes and was the work of many individuals. It began at the outset of the Civil War, when slaves sought refuge behind Union lines. It did not end until December 1865, with the ratification of the 13th Amendment, which irrevocably abolished slavery throughout the nation.

But the Emancipation Proclamation was the crucial turning point in this story. In a sense, it embodied a double emancipation: for the slaves, since it ensured that if the Union emerged victorious, slavery would perish, and for Lincoln himself, for whom it marked the abandonment of his previous assumptions about how to abolish slavery and the role blacks would play in post-emancipation American life.

You can read the rest of Foner’s essay by clicking here.

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Celebrating the 150th anniversary of the Emancipation Proclamation

Abraham Lincoln spent the morning of Dec. 31, 1862 meeting with his cabinet to revise the final text of the Emancipation Proclamation, which was due to go into the effect the next day. On the morning of January 1, 1863, after an 11 A.M. reception at the White House, he signed the final, official copy of the document, which had been prepared by the State Department. Frederick Seward, the son of Lincoln’s Secretary of State, was an eyewtiness:

At noon, accompanying my father, I carried the broad parchment in a large portfolio under my arm. We, threading our way through the throng in the vicinity of the White House, went upstairs to the President’s room, where Mr. Lincoln speedily joined us. The broad sheet was spread open before him on the Cabinet table. Mr. Lincoln dipped his pen in the ink, and then, holding it a moment above the sheet, seemed to hesitate. Looking around, he said:

“I never in my life felt more certain that I was doing right, than I do in signing this paper. But I have been receiving calls and shaking hands since nine o’clock this morning, till my arm is stiff and numb. Now this signature is one that will be closely examined, and if they find my hand trembled they will say ‘he had some compunctions.’ But anyway, it is going to be done.”

So saying, he slowly and carefully wrote his name at the bottom of the proclamation. The signature proved to be unusually clear, bold, and firm, even for him, and a laugh followed at his apprehension. My father, after appending his own name, and causing the great seal to be affixed, had the important document placed among the archives. Copies were at once given to the press.

Many abolitionist churches in the North and communities of contraband slaves in Union camps in the South held watch night services on Dec. 31 to await the final proclamation. This year, on the 150th anniversary of the proclamation, some organizations are continuing this tradition, and the document is on exhibit for a limited time at the National Archives.

A Union soldier reads the proclamation to an enslaved family in this 1864 engraving by J.W. Watts. Division of Rare & Manuscript Collections, Carl A. Kroch Library, Cornell University

You can read the final proclamation’s text in the Collected Works of Abraham Lincoln:

Now, therefore I, Abraham Lincoln, President of the United States, 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 authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, towit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. Johns, St. Charles, St. James[,] Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New-Orleans) Mississippi, Alabama, Florida, Georgia, South-Carolina, North-Carolina, and Virginia, (except the fortyeight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth-City, York, Princess Ann, and Norfolk, including the cities of Norfolk & Portsmouth [)]; and which excepted parts are, for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

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Your chance to see Lincoln’s first draft of the Emancipation Proclamation

Lincoln’s handwritten draft of the Emancipation Proclamation will be on display to the public at the Library of Congress for six weeks beginning in January 2013.  This special limited engagement is part of the LOC’s special Civil War exhibition, which runs through next June.

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The day the war changed

One hundred and fifty years ago today, Lincoln issued the preliminary Emancipation Proclamation, turning a war for the Union into a revolution against slavery.

That on 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.…

For more information about the preliminary proclamation, see the online exhibit from the National Archives, the essay by Harold Holzer and scans of the manuscript at the New York State Library, the materials relating to the proclamation at the Library of Congress, and the Gilder Lehrman Institute of American History’s section on slavery and emancipation.

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Carpenter’s Lincoln

The Civil War Sesquicentennial blog of The New York Times has an interesting post on Francis Carpenter and Lincoln.  Carpenter stayed at the White House while working on his painting of Lincoln reading the Emancipation Proclamation to members of his cabinet.  The painting itself got mixed reviews, but Carpenter’s book about the time he spent in the Executive Mansion has been a gold mine for historians.

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Lincoln documents in the news

A signed copy of the Emancipation Proclamation sold for more than $2 million in New York this week.  One of forty-eight copies originally sold during the Civil War to benefit Union soldiers, it was purchased by a private buyer but will eventually be displayed for the public.

A judge has sentenced presidential memorabilia collector and author Barry Landau to seven years in prison.  Landau pleaded guilty to stealing thousands of documents from archives and libraries, including original Lincoln material.  The judge also ordered Landau to pay $46,000 in restitution.  His accomplice Jason Savedoff is yet to be sentenced.

Finally, $5 million worth of stolen items, including letters signed by Lincoln, have been returned to the Polish Museum of America in Chicago.

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Harold Holzer releases new book on emancipation

Harold Holzer, one of America’s most prolific Lincoln scholars, has written a new book on some of the issues surrounding the Emancipation Proclamation.  The book, Emancipating Lincoln: The Proclamation in Text, Context, and Memory, is published by Harvard University Press.

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“The imperatives of his moment”

E. J. Dionne, Jr. argues that President Obama is facing the same challenge and opportunity that the agitation against slavery presented to Lincoln.  Claiming that the Occupy Wall Street movement is expressing widely held sentiments, he writes:

In their time, the abolitionists were radicals, too. Lincoln, a shrewd politician, understood that public opinion in the North did not fully embrace their cause but was moving in their direction. Lincoln remained a moderate at heart, but he abandoned moderation on slavery when this proved to be morally and politically unsuited to the imperatives of his moment. By following Lincoln’s example and acting against the injustices of our time, Obama could also come to occupy the high ground.

Lincoln’s receptiveness to shifting circumstances and the currents of public opinion—what Dionne calls “the imperatives of his moment”—is one of the central concerns of David Herbert Donald’s acclaimed biography.  Donald noted that Lincoln “preferred to respond to the actions of others.”

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Obama on Lincoln as a compromiser

By Michael Lynch

Like many other American politicians, President Obama invokes the legacy of Abraham Lincoln from time to time.  He did so while discussing the current debt ceiling controversy, referring to the Emancipation Proclamation as an example of Lincoln’s willingness to make compromises:

“This notion that somehow if you’re responsible and you compromise, that somehow you’re giving up your convictions — that’s absolutely not true,” the president said at a University of Maryland town hall.

While the proclamation declared slaves who were in areas that had rebelled against the Union to be free, Lincoln exempted five slave states from the terms of the agreement.

The basis for the proclamation was its utility as a war measure and Lincoln excluded several areas on the basis that they were not at war against the U.S. because they remained loyal to the Union.

“Now think about that,” Obama said. “The Great Emancipator was making a compromise in the Emancipation Proclamation because he thought it was necessary in terms of advancing the goals of preserving the Union and winning the war.”

With the August 2nd deadline to default rapidly approaching, Obama asked if Lincoln can do it, why can’t Congress?

“So, you know what?  If Abraham Lincoln could make some compromises as part of governance, then surely we can make some compromises when it comes handling our budget,” Obama said.

Obama was correct in noting that the proclamation did not completely and immediately eradicate slavery.  Lincoln considered abolitionists’ calls for an immediate and total end to slavery to be unrealistic, and believed that he lacked the authority to simply extinguish slavery by decree.

When he finally issued his Emancipation Proclamation, he did so as a war measure, exercising his military authority in a time of rebellion.  Those states and portions of states still in revolt were the only areas where Lincoln could invoke this extraordinary power.  The loyal border states of Maryland, Delaware, Kentucky and Missouri were therefore exempt.  So was Tennessee (much of which had fallen into Union hands), along with parts of Virginia (particularly those western counties in the process of becoming a separate state) and southern Louisiana.

This map shows the Emancipation Proclamation's reach. Slaves in areas colored red were declared free. Slavery existed in the light blue areas, but these regions were exempt from the proclamation. Image from Wikimedia Commons

Critics of Lincoln sometimes claim that the proclamation was both ineffectual and hypocritical—ineffectual because it supposedly freed no one, and hypocritical because it applied only to areas over which Lincoln’s government had no effective control.  These critics are wrong on both counts.  The proclamation did free many slaves, and it did so immediately. Parts of the Carolinas, Alabama, and Virginia had fallen behind Union lines but weren’t exempted, so thousands of slaves in these regions became free when the proclamation took effect on January 1, 1863.  And, of course, slaves who were still in Confederate-held territory on that date eventually experienced emancipation once Union armies penetrated and occupied the areas where they lived.  The claim that the proclamation did not free anyone is therefore simply untrue.

Having taken the fateful step of moving against the institution, Lincoln also played a crucial role in securing freedom for those slaves in the areas exempted under the proclamation.  He sought and achieved the passage of a constitutional amendment which permanently and completely eradicated slavery in the United States, and the states ratified this Thirteenth Amendment after his death.  This measure freed those slaves who remained in bondage in Kentucky and Delaware; Maryland and Missouri had already taken action to end slavery within their borders by that time.

While portraying the Emancipation Proclamation as a half-way measure is somewhat accurate, it minimizes the political and constitutional realities Lincoln faced.  He acted decisively and dramatically, but he did so within the limits of what he believed his authority to be at the time.  The proclamation was thus something of a paradox—a measure both cautious and radical at the same time.

—Michael Lynch graduated from LMU with a degree in history, worked at the Abraham Lincoln Library and Museum as an assistant curator, and now teaches survey-level history courses on campus.  He holds an M.A. in history from the University of Tennessee and blogs about historical topics at pastinthepresent.wordpress.com.

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