by James Oakes
10 THE EMANCIPATION PROCLAMATION
NO ONE WAS MORE SKEPTICAL of the Emancipation Proclamation than the president who issued it. On several occasions over the second half of 1862, Lincoln made his doubts clear. “If a decree of emancipation could abolish Slavery,” he told a group of visitors on June 20, “John Brown would have done the work effectually.” As it is, the federal government cannot even enforce the Constitution in the Confederate states, Lincoln explained. “Would a proclamation of freedom be any more effective?” A few months later, replying to a delegation of Christians who argued that an emancipation proclamation was the will of God, Lincoln expressed even deeper skepticism. “What good would a proclamation of emancipation from me do?” Lincoln asked. It was one thing to emancipate slaves in areas under Union occupation; that could be done and was being done. But the proclamation the visitors were asking for would apply to areas over which the Union army had no control. “I do not want to issue a document that the whole world will see must necessarily be inoperative,” Lincoln added. It would be “like the Pope’s bull against the comet!” Even after he issued the Preliminary Proclamation in September, Lincoln remained skeptical. Responding to a congratulatory note from Vice President Hannibal Hamlin, Lincoln again admitted that “my expectations are not as sanguine as are those of some friends.” It would no doubt bolster support for the administration in the North, he said, but “the time for its effect southward has not come.”1 Lincoln had no doubts about the wisdom and justice of emancipation itself. He speculated that proclaiming emancipation might reinvigorate northern support for the war, help forestall European recognition of the Confederacy, and further undermine the rebellion by attracting more slaves to Union lines. But he was not sure that proclaiming emancipation in the unoccupied areas of the Confederacy would free all that many slaves. And yet, on January 1, 1863, Lincoln issued the Emancipation Proclamation.
One day earlier—December 31, 1862—the same day he signed the West Virginia statehood bill, Lincoln met with his cabinet to go over the draft of the proclamation one last time. The cabinet review had begun on December 29, when Lincoln read a draft aloud, invited criticism, and ordered copies made so that each of the secretaries could make further suggestions when they met again. When the cabinet reconvened at ten o’clock on the thirty-first, Secretary of Treasury Salmon Chase made a few suggestions, most of which were by then familiar. Rather than a single emancipation proclamation, he would have preferred to have individual Union army officers proclaim freedom as they marched through the slave states. Lincoln’s final draft lifted the long-standing ban on black troops in the Union army, but Chase thought that announcement should be made separately. Lincoln accepted neither of these recommendations, but he did adopt Chase’s suggestion that the final proclamation include a more inspiring coda. Otherwise, the cabinet endorsed Lincoln’s proclamation more or less unchanged.2
The following morning, Lincoln prepared the final draft before sending it off to the State Department to be engrossed, but when the document came back at ten forty-five, Lincoln noticed an error and returned it for correction. It was New Year’s Day, and by tradition the president hosted a reception at the Executive Mansion beginning at eleven. The release of the proclamation would have to wait. Official Washington arrived during the first hour, and at noon the doors were opened to the public until two o’clock. When the reception ended, Lincoln went upstairs to affix his signature to the corrected document. Presidential signatures were not necessary for proclamations, but Lincoln, conscious of the significance of what he was about to do, broke with tradition and signed it anyway. He even used his full name, “Abraham Lincoln,” rather than his more usual “A. Lincoln.” As he lifted his pen, his hand began to tremble. “I could not for a moment control my arm,” Lincoln later recalled. “I paused, and a superstitious feeling came over me which made me hesitate.” Then he remembered. “I had been shaking hands for hours with several hundred people, and hence a very simple explanation of the trembling and shaking of my arm.” After smiling at himself for a moment, Lincoln proceeded to sign the Emancipation Proclamation. “I never, in my life, felt more certain that I was doing right than I do in signing this paper.”3
THE DOCUMENT
It’s a deceptively straightforward document. Clocking in at under seven hundred words, the Emancipation Proclamation is in many ways more interesting for what it assumed than for what it declared. The most important things about it—the ways it transformed the federal government’s approach to slavery—are barely mentioned or not referred to at all. It was the skeleton, but not the flesh, of a sweeping revision of Union emancipation policy.
The first two substantive paragraphs were direct quotations taken from the Preliminary Proclamation of the previous September. They reminded readers of Lincoln’s promise to emancipate all slaves in areas still in rebellion as of January 1, 1863, and of his corresponding promise to deploy Union armed forces to “maintain the freedom of such persons.” Neither the army nor the navy would do anything “to repress such persons . . . in any efforts they may make for their actual freedom.” Critics had denounced this passage as an incitement to slave insurrection, but a better word for it is enticement, for Lincoln almost certainly intended the passage as an invitation for slaves to secure their own freedom by running to the safety of Union lines.4
Having reaffirmed his vow to free the slaves in all areas “in rebellion,” Lincoln explained once more the criteria for distinguishing the loyal from the disloyal areas of the South. His standard was simple: any state, or portion of any state, that was represented in Congress by members chosen by a majority of qualified voters would be deemed loyal and would be exempted from the proclamation. All of the exempted areas had unionist representatives in Congress: northern and western Virginia, southern Louisiana, and the four Border States.5 Tennessee had a unionist governor cooperating with the administration.
The preliminaries completed, Lincoln’s proclamation moved on to the legal justification for his action. It was strictly military emancipation. Lincoln was freeing slaves by virtue of the power vested in the president as commander in chief of the army and navy “in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion.” His reasoning was by now familiar. Except in time of war or insurrection the Constitution forbade the federal government from directly interfering with slavery in the states where it existed. Military necessity was the only constitutional ground on which Lincoln could justify federal “interference” with a state institution.6
Finally Lincoln turned to the business at hand: “I do order and declare,” his proclamation read, “that all persons held as slaves within said designated areas . . . are, and henceforward shall be free.” He reiterated his promise that the army and navy would “recognize and maintain the freedom of said persons.” He urged those emancipated by the proclamation “to abstain from all violence, unless in necessary self-defence” and further recommended that they “labor faithfully for reasonable wages.” At first glance, these seem mere reiterations of the criteria for “self-emancipation” by which the federal government had been freeing slaves for nearly sixteen months. Slaves voluntarily entering Union lines from disloyal areas were emancipated, and their freedom was validated by their willingness to work in return for wages. However, by inviting slaves to come within Union lines, by enticing them with the promise of freedom, Lincoln was actually initiating a major shift in federal emancipation policy. Up to that point the government had abolished slavery in Washington and had emancipated rebel-owned slaves in the occupied areas of the seceded states, areas that included perhaps two hundred thousand enslaved blacks. If enticement worked, the Emancipation Proclamation could free millions.7
In the next paragraph Lincoln announced a second major shift in Union emancipation policy. Emancipated slaves “of suitable condition, will be received into the armed services of the United States.” Black men had be
en excluded from the Union army ever since the nation was founded. With the Emancipation Proclamation, the long-standing ban on black enlistment was lifted.8
Together the two new policies announced in the Emancipation Proclamation—enticement and black enlistment—transformed Union soldiers into an army of liberation in the seceded states. They were the means by which the Lincoln administration would enforce the proclamation, making it much more than a papal bull against the comet.
Lincoln closed the proclamation with a slightly edited version of the elegant coda Chase had recommended the day before. With this act, Lincoln said, “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.” The theme was hardly a new one among Republicans. For months they had been proclaiming the dual character of emancipation: it was a military necessity, but it was also the right thing to do. The coda also sounded an echo of the “decent respect for the opinions of mankind” that Jefferson had invoked in his Declaration of Independence—the ideological touchstone for Lincoln’s hostility to slavery. Military necessity and antislavery idealism were not mutually exclusive.9
That was it—a no-nonsense document that appeared to do little more than remind readers that Lincoln had promised to proclaim emancipation, and then did it. Its two major policy shifts were mentioned obliquely or in passing, calling no attention to themselves. In one sense the proclamation’s modesty was becoming: the brevity and simplicity of its prose belied its staggering scope. By saying very little, however, the Emancipation Proclamation also explained very little. It was full of assumptions that knowledgeable readers would have recognized but which are no longer obvious to us. On what basis, for example, did Lincoln confidently declare that slaves emancipated by the proclamation were “henceforward” and “forever free,” that they could never be returned to slavery? What was the theory of military emancipation? And how did Lincoln expect to overcome the problem he himself had repeatedly pointed out: his inability to enforce the proclamation in the very areas it covered? On paper Lincoln had created an army of liberation. But what did that mean on the ground, in the rebellious areas of the South?
A THEORY OF MILITARY EMANCIPATION
Across America the Emancipation Proclamation was praised and denounced for the same reason: Lincoln had issued an abolitionist edict. The Democratic New York Herald assailed it as “the last card of the abolition Jacobins.” Jefferson Davis called Lincoln’s proclamation “the most execrable measure recorded in the history of guilty man.” It vindicated secession, Davis said, by demonstrating that Lincoln and the Republicans were the very antislavery fanatics white southerners had long said they were. Abolitionists in the North were not inclined to dispute the point. Wendell Phillips declared that Lincoln had bound the United States “to the throne of the Almighty, proclaiming Liberty as an act of justice, and abolishing a system found inconsistent with the perpetuity of the Republic.” In cities across the North—in New York, Brooklyn, and Boston, in Albany, Pittsburgh, and Chicago—African Americans filled churches, meeting halls, and vast auditoriums, celebrating the proclamation. Frederick Douglass called it “the first step on the part of the nation in its departure from the thralldom of ages.”10 Yet the abolitionism that contemporaries often attributed to the Emancipation Proclamation can be difficult for modern readers to discern, in part because of the way it was written.
Lincoln composed the proclamation in prose so dull that readers began objecting as soon as it was issued. It was loaded down with lawyerish language. Whereas, and by virtue of the power, Lincoln hereby enjoins, and further declares, in witness whereof he hereunto sets his hand. Karl Marx had dismissed the prose of the Preliminary Proclamation as “mean pettifogging,” the kind of language “one lawyer puts to his opposing lawyer,” and no doubt the same could be said of the Emancipation Proclamation itself.11 Where was the call to high ideals, to justice and equality, to basic human decency? Chase’s brief coda was too meager. Why none of the exalted rhetoric Lincoln could conjure up on other occasions? Would Harriet Beecher Stowe or Wendell Phillips have produced such a document, so empty of emotion, so devoid of principle? Certainly not.
Other abolitionists, however—William Jay perhaps, or Samuel May, or Gerrit Smith—might well have written the proclamation as Lincoln did. There was much more to abolitionism than red-hot rhetoric. The literature of the movement included sober treatises on constitutional law, legal tracts, and appellate court briefs reproduced as antislavery pamphlets. Theodore Dwight Weld published a scorching indictment in American Slavery as It Is, but in 1840 he also published Persons Held to Service, Fugitives Slaves, &c., specifying the legal distinction between slavery as a servile status and slavery as “property in man”—a distinction that went on to become crucial to the legal process of emancipation. Frederick Douglass wrote the impassioned What to the Slave Is the Fourth of July? But in 1861 he went to Scotland and delivered a long and learned lecture on the legal status of slavery under the Constitution. William Jay’s View of the Action of the Federal Government in Behalf of Slavery ranks as one of the unappreciated classics of abolitionist literature. John Quincy Adams spent two days presenting his oral argument before the Supreme Court in the Amistad case and in so doing produced an influential summation of abolitionist legal doctrine. Joshua Giddings’s famous congressional “resolutions” were the work of an abolitionist who was also a lawmaker. Abolitionists stressed the inhumanity and injustice of slavery, yet they also formulated antislavery principles based on common law, case law, statute law, and constitutional law. Lincoln may not have been an abolitionist, but the fact that he chose to write the Emancipation Proclamation as a legal document hardly distinguished it from one of the central rhetorical traditions of abolitionism.
Ironically, what most indelibly stamped the proclamation with the influence of the antislavery movement was the very thing that critics have always been quickest to condemn—its reliance on “military necessity.” Though a handful of abolitionists later complained about the military rationale for emancipation, most Americans at the time associated military emancipation with antislavery radicalism, and rightly so. To Democrats, “military necessity” was doubly dubious: not only was there no actual “military necessity” for emancipation, they charged, the very idea that the federal government could free a slave on such grounds was sheer abolitionist dogma. The critics had a point. Though the practice of military emancipation was ancient, the claim that the Constitution empowered the federal government to emancipate slaves as a military necessity was most heartily embraced by abolitionists and antislavery politicians. In the earliest months of the war, some antislavery radicals—including Frederick Douglass and William Lloyd Garrison—denounced Lincoln not because he invoked his war powers to free slaves but because he did not invoke them soon enough. Within the antislavery movement it was widely understood that the war powers were the sole constitutional means by which the federal government could emancipate slaves in the states where slavery already existed. “According to our political system,” Lincoln explained, “as a matter of civil administration, the general government had no lawful power to effect emancipation in any State.” But “as a military measure,” he noted, the federal government could free slaves so “that the rebellion could be suppressed.”12 It was a familiar argument within the antislavery movement.
What was new in 1863 was the theory antislavery lawyers put forward to justify military emancipation. When during the debates in the 1830s over the “gag rule” John Quincy Adams first asserted that in times of war or rebellion the federal government was empowered to emancipate slaves, he drew almost exclusively on historical precedent to make his case. None of the classic treatises on the laws of war addressed the issue of slave emancipation. As antislavery lawyers and politicians embraced this idea, however, they fused basic abolitionist principles to familiar historical practice. By the time they finished their intellectual spadew
ork they were justifying military emancipation on the natural-law principle of fundamental human equality.13
The antislavery premises of military emancipation were thoroughly aired in the sharp debate that erupted among legal scholars soon after Lincoln issued his Preliminary Proclamation. In late 1862, Benjamin Curtis, a conservative Whig and former justice of the U.S. Supreme Court, published a lengthy critique of the legal reasoning behind the impending proclamation. Curtis worried that Lincoln was careering downward on a very slippery slope. “If the President, as commander-in-chief of the army and navy in time of war, may, by an executive decree, exercise this power to abolish slavery in the States,” Curtis wondered, “what other power, reserved to the States or to the people, may not be exercised by the President, for the same reason, that he is of opinion he may thus best subdue the enemy?”14 Everyone understood the principle Curtis was invoking: the Constitution did not empower the federal government to abolish slavery in the states where it already existed. Lincoln’s proclamation, Curtis charged, would overturn the federal consensus.
But emancipation was not abolition, and by conflating the two, Curtis forced antislavery lawyers to clarify a distinction that had been implicit in federal antislavery policy from the start. Neither the Emancipation Proclamation that Lincoln proposed to issue nor the Second Confiscation Act on which it was based “abolished” slavery anywhere. In a lengthy rebuttal to Curtis, the New York lawyer Grosvenor P. Lowrey made precisely this point. Even universal emancipation “does not abolish slavery; it only abolishes the slave.” When the war is over, “when the martial law is removed,” Lowrey explained, a master in Georgia whose slaves had been emancipated “may purchase another slave in Maryland, or wherever he can procure a legal title, and hold him afterward, in Georgia, under the same law as before.” The “military power, acting through emancipation, does not pretend to destroy the legal right to own slaves.”15 The Emancipation Proclamation, however sweeping, would not violate the federal consensus against abolishing slavery in the states.