I further make known that whether it be competent for me, as Commander-in-Chief of the Army and the Navy, to declare the Slaves of any state or states, free, and whether at any time, in any case, it shall have become a necessity indispensable to the maintenance of the government, to exercise such supposed power, are questions which, under my responsibility, I reserve to myself, and which I can not feel justified in leaving to the decision of commanders in the field.
He did not say: nobody can free slaves within a state. For the first time he was saying only that Hunter, a commander in the field, was not the one to do it, if it should be done. It would be the commander in chief’s decision, whether “it be competent” to declare slaves in the states free, and whether it had become necessary. Mark Neely writes, “Here is the first indication, public or private, that Lincoln thought slavery could be abolished under the powers of the commander in chief.”
WHEN HE PUBLISHED in a rival newspaper a reply to an effusion in the Tribune by the mercurial newspaperman Horace Greeley, Lincoln included a new indication of what he believed he could do,*46 and would do. Readers of this letter in the luxury of later times often get it exactly wrong, noticing only that he said that if he could save the Union by keeping slavery he would do it; but that was not the news. They may fail to read his last sentence, “I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.” And they may not know that when he wrote this letter he had a draft of the Emancipation Proclamation in his desk. But most important, they miss the stunning importance in its time of this item among the alternatives: “If I could save [the Union] by freeing all the slaves I would do it.”†47
The churches, and the Protestant flavor of American culture after it had been marinated in the juice of revivals in the first half of the nineteenth century, were, as Lincoln biographer Richard Carwardine has made particularly clear, an essential constituency for Lincoln’s fulfillment of his attack on slavery. When a delegation of antislavery “Chicago Christians of All Denominations” visited him on September 13,1862, to present memorials condemning the evil institution of slavery and asking for national emancipation, Lincoln in response said he did not want to issue a document as inoperative as the pope’s bull against the comet.
Then he added, just as though it were an aside, this enormously significant point:
Understand, I raise no objections against it [an emancipation proclamation] on legal or constitutional grounds; for, as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy.
One can say that the war made possible the ending of slavery, but Lincoln would put it differently: the continued resistance of the rebels to the authority of the government made it necessary.
After the defeats and doldrums of 1861, and the Union successes particularly in the West in the first quarter of 1862, failure of the vaunted McClellan Penninsula Campaign to make progress that summer came as an immense shock and disappointment. The border state representatives, at a meeting with the president, responded negatively to his proposal for compensated emancipation. The war was not going well for the Union, either in the West or in the East. In July 1862, as we have seen, the president made enormous decisions: he widened the rules for legitimate military objectives to include rebel property, which changed the character of the war; and he decided to declare slaves in rebel states free—which changed the character both of the war and of the nation that came out of it.
There was a bit of history about using the “war power” to free slaves. Old John Quincy Adams, when he was serving in Congress after having been president, shocked his fellow congressmen by twice maintaining that in a war Congress could free slaves. And on April 12, 1861—during Lincoln’s first days as president—Adams’s young friend Charles Sumner had told the new president about that idea.
One could certainly make a strong case that emancipation was “a fit and necessary war measure for suppressing said rebellion.” But would a president who was less convinced of the monstrous injustice of slavery have accepted that case? This president believed that slavery was not only profoundly wrong but profoundly wrong specifically as measured by this nation’s moral essence. These convictions about the deep wrongness and severe damage to the nation represented by human slavery would surely tilt his estimate of the military necessity that required the proclamation, and the positive results for the war that would follow from it.
Suppose the president had been William Seward, with his rather odd new theory that slavery was in principle already defeated when the Republicans won the election of 1860, so that no further measures were necessary.
Attorney General Bates, along with Blair the most conservative member of the cabinet, rather surprisingly did endorse the proclamation—but only with the repugnant and prohibitive requirement that the freed slaves be forcibly deported. Salmon Chase, the most radical member of the cabinet, favored a different way forward—an incremental approach allowing generals, like Hunter, to organize and arm slaves in their command. Bates, Cameron, and Chase were the three other men whom the Republicans might have nominated in 1860; it is to be doubted that any one of them would have made the jump that Lincoln did.
One’s estimate both of the plight of the Union effort necessitating the Emancipation Proclamation and of the result that would actually follow from it was loaded with contingency and flavored with one’s moral conviction. Another president might say that such a proclamation would cause revolt in the armies, damage enlistments, intensify Confederate resistance, dilute Union loyalty in the border states, and cause Republican losses in the elections in the fall of 1862.*48 All of these effects did, indeed, occur to some extent. Lincoln judged that in the longer run they would be overcome by the positive military, political, and diplomatic effects, and he proved to be right.
On the evening of the very day the Union armies won their unfulfilled victory at Antietam, on September 17, 1862, Lincoln at Soldiers’ Home worked on the final draft of what would come to be called the preliminary emancipation proclamation. He continued to work on it Saturday and Sunday, September 20 and 21, and on Monday he held a cabinet meeting, for which we are presented with two quite contrasting versions of Lincoln’s opening moments.
Twentieth-century Lincoln biographer William Barton wrote in 1925:
Bishop Fowler in his noted lecture on Abraham Lincoln told his millions of interested hearers that Lincoln, before presenting to his Cabinet the Proclamation of Emancipation, read to them a chapter from the Bible. That is precisely what Lincoln would have done if he had been Bishop Fowler. What he actually did read was a chapter from [the humorist] Artemus Ward.
Chase in his diary said that Stanton did not think it was very funny, and one suspects that Chase didn’t either.
But then Lincoln made a remark, surprising for him, that Bishop Fowler, presumably, and the sober Episcopalian Chase would have regarded as more suitable to the occasion. He told about the promise he had made to himself and—“hesitating a little”—his Maker, that when the rebels were driven from Maryland, he would issue the proclamation, which he proposed now to do. Antietam provided that moment. The substance was decided; he was submitting the document to the cabinet only for editorial and other minor improvements. The proclamation gave the rebel states one hundred days to stop rebelling; if they continued, on January 1 he would, by presidential order justified by his war power, free all the slaves in the areas still in rebellion.
Lincoln’s two giant purposes had now come to coincide, and not just to coincide but also to be brought into a relationship in which his supreme duty required that he act in accord with his deepest moral conviction.
He now must free the slaves—in order to save the Union.
HERETOFORE, HENCEFORWARD, AND AFORESAID
WHEN A READER TODAY takes up a copy of the Emancipation Proclamation and begins to read, he may have a pu
zzled feeling that somehow he has got hold of the wrong piece of paper. Surely there must be some mistake. The proclamation is said to be “perhaps the greatest document of social reform in American history,” and Lincoln is widely recognized as the greatest writer among American presidents, and an extraordinary writer by a much more exacting test than that one. But this document certainly is no Gettysburg Address. It begins with “Whereas” and proceeds to spell out a date in the wordy formal numberless way: “on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two.” It then includes two paragraphs pasted into the text from a printed document issued back on that date. And if one then looks back at that September 22 production—known to history as the preliminary emancipation proclamation—one finds that even more had been pasted in from two acts of Congress. Lincoln, so skillful with a pen, also made repeated use of scissors and paste.
Reading through this “final” proclamation—the one that rang all the bells on New Year’s Day 1863 and was called by Frederick Douglass “the greatest event in our nation’s history”—one finds it replete with lawyers’ words like “thereof” and “hereby” and “wherein and whereof” and “hereafter, as heretofore” and “to wit.” One verb is not allowed to serve when two or more can be summoned: “I do hereby proclaim and declare” and “I do hereby enjoin upon and order all persons…to observe, obey and enforce” That September 22 “preliminary” proclamation, issued, as we learn, “the full period of a hundred days” before this final proclamation, and a short “first draft” that Lincoln had presented to the cabinet back in July, prove also to be soaked in lawyers’ language.*49
A modern reader therefore may understand why none other than Karl Marx, writing as a journalist in a Vienna periodical, had sneered that the proclamation had “all the mean pettifogging conditions which one lawyer puts to his opposing lawyer.” The pettifogging is particularly thick in a paragraph, introduced by “to wit,” that proceeds not only to list the states in rebellion in which the slaves were to be freed (“Arkansas, Texas…Mississippi, Alabama…”) but also then to add in parentheses after some states a list of exceptions:
Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. Johns…St. Mary, St. Martin, and Orleans, including the City of New-Orleans)…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 it then nails down, in a careful lawyer’s way, the significance of these specified exceptions:
and which excepted parts are, for the present, left precisely as if this proclamation were not issued.
So this great edict of freedom frees slaves in Baton Rouge—but not in New Orleans? Frees them in Richmond and Alexandria—but not in Norfolk? Proclaims that freedom shall reign up to the border of Berkley County, Virginia—but not across that border? In fact, the Emancipation Proclamation freed slaves only in rebel territories and not in any of those territories that were now held by the Union army.
A modern reader may be further puzzled because this proclamation really does not seem to do much proclaiming. Is Lincoln not supposed to be the Great Emancipator? Where in these paragraphs is any Great Emancipating? Where is the Lincoln of the rousing last passage of the Cooper Union address? Where is the Lincoln who started his rise in politics proclaiming that slavery was a “monstrous injustice” that he hated? Where is the Lincoln who had condemned slavery repeatedly as “evil,” “an unqualified evil,” a “vast moral evil,” and “the sum of all villainies”? Where is the Lincoln who said slavery was a wrong that should be treated as a wrong? Where is the Lincoln who insisted, for six years, against Senator Stephen Douglas, that slavery violated this nation’s foundation, found in the Declaration of Independence’s assertion that all men are created equal? One can read almost all the way through this paper without finding any moral reason why slaves are to be declared free in those carefully delimited areas. This document is not making grand moral assertions; it is making close legal distinctions. There is (almost) no moral reason given why slaves are to be freed anywhere. The most widely quoted criticism of the proclamation, written by historian Richard Hofstadter well over half a century ago and repeated in absolutely every book on the topic since then, puts the two puzzlements a reader may feel—about the legalistic language and the lack of moral lift—into one pungently sarcastic phrase: the proclamation has all the moral grandeur of a bill of lading. And it is certainly true that “moral grandeur” is not to be found in this paper.
A reader who has worked his way through seven paragraphs of “herebys” and “aforesaids” and names of excepted counties may at last find a little spark in a paragraph near the end:
And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.
There at last lined up behind this proclamation are justice and Almighty God and the considerate judgment of mankind. (Historian Allen Guelzo says this last line provides a little link to the “decent opinions of mankind” in the Declaration.) But the reader may feel that this brief nod near the end is just what Franklin Roosevelt, in conversation with his speechwriter Sam Rosenman, once called the “God stuff” that is routinely required at the end of presidential utterances.
And then one finds that it was not even Lincoln’s own God stuff. Lincoln did not write this paragraph. It had been Chase’s suggestion. All Lincoln did was to strike out a clause of Chase’s and insert the phrase “upon military necessity.” Justice and Almighty God and the opinion of mankind were all very well as far as they went, but what Lincoln wanted everyone to be clear about was that this action was “warranted by the Constitution, upon military necessity.”
When Lincoln describes himself taking this action, he puts on the full dress uniform of his military identity in the present military emergency:
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 the authority and government of the United States…
And then gives the reason for the action he is taking:
as a fit and necessary war measure for suppressing said rebellion…
He did not free slaves because slavery was a great wrong, although he believed it to be a great wrong; he did not free slaves because slavery violated this nation’s founding ideals, although he believed strongly that it did. He freed slaves “as a fit and necessary war measure for suppressing said rebellion.” Such an act would weaken the Confederate states and bring freed slaves into the Union army.
The Emancipation Proclamation sounds like a legal document because it is a legal document. It does not have the lift of a moral argument because it is not making a moral argument. Lincoln was not making an argument at all; he was making law. He was not giving inspiration; he was giving an order.
The lawyer’s prose was not a literary or moral failure but a necessity. The document was at its core an act of law in wartime—a military order—an order to military commanders to liberate slaves in conquered territory, in the teeth of strong resistance. The tedious specificity was central to Lincoln’s justification: as military chief he could command, on his own authority, the freeing of slaves in states in rebellion as a necessary military measure. He could not do that in states and areas that were not in rebellion, which included areas captured by U.S. forces.
Douglas Wilson in Lincoln’s Sword writes: “Abraham Lincoln’s Emancipation Proclamation constituted a special problem in writing…It had to be emotionally chaste. It must avoid words and phrases that would appeal only to partisans and be land mines for others. Unlike almost any other kind of purposeful writing, it would be enhanced by its rhetorical barrenness.” Paradoxically, Lincoln’s role
in ending slavery was a moral accomplishment that required that he not admit that it was a moral accomplishment.
To have asserted that the evil of the institution was the reason for the action would have not only lost the Union effort the support of that large portion of the country that did not believe it to be an evil, but also offended the constitutional sensibilities of much of the nation, including himself. He did not believe that presidents could simply assert as law their own moral convictions.
He would insist in a letter to a group of Kentucky leaders that he wrote at their request, on April 4,1864—the letter to Albert Hodges and others—that he had not acted in that way. He began this letter with his most adamant presidential condemnation of slavery: “If slavery is not wrong, nothing is wrong” “I am naturally anti-slavery…I cannot remember when I did not so think and feel.” But he then would follow that vigorous assertion of his lifelong personal moral condemnation of this unmitigated evil with an avowal of his presidential restraint:
President Lincoln- The Duty of a Statesman Page 33