September 22, 1862: Lincoln Issues Notice of Emancipation Proclamation

Today is the 159th anniversary of the issuance of the notice by Lincoln of the Emancipation Proclamation, to take effect on January 1, 1863, Lincoln doing so after the Union victory at Antietam on September 17, 1862.  Reaction was, to say the least, mixed.  In the North the abolitionists were enraptured.  Most Northern opinion was favorable, although there was a substantial minority, embodied almost entirely in the Democrat party, that completely opposed this move.  Opinion in the Border States was resoundingly negative.  In the Confederacy the Confederate government denounced the proposed Emancipation Proclamation as a call for a race war.  Today, almost all Americans view the Emancipation Proclamation as a long overdue ending of slavery.  At the time it was very much a step into the unknown, and the consequences impossible to determine.  Lincoln had converted the War for the Union into a War for the Union and against Slavery.  It remained to be seen as to whether the War, whatever its objectives, could be won.  Here is the text of Lincoln’s announcement of the Emancipation Proclamation: (more…)

Published in: on September 22, 2021 at 5:30 am  Comments Off on September 22, 1862: Lincoln Issues Notice of Emancipation Proclamation  
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August 20, 1862: The Prayer of Twenty Millions

Half sage and half quack, Horace Greeley, who in 1841 founded the New York Tribune, was a power to be reckoned with in the United States one hundred and fifty years ago.  On August 20, 1862 he published in his paper an open letter, entitled The Prayer of Twenty Millions,  to President Lincoln demanding the abolition of slavery within the Union.

To ABRAHAM LINCOLN, President of the United States

DEAR SIR: I do not intrude to tell you–for you must know already–that a great proportion of those who triumphed in you election, and of all who desire the unqualified suppression of the Rebellion now desolating our country, are sorely disappointed and deeply pained by the policy you seem to be pursuing with regard to the slaves of the Rebels. I write only to set succinctly and unmistakably before you what we require, what we think we have a right to expect, and of what we complain.

I. We require of you, as the first servant of the Republic, charged especially and preeminently with this duty, that you EXECUTE THE LAWS. Most emphatically do we demand that such laws as have been recently enacted, which therefore may fairly be presumed to embody the present will and to be dictated by the present needs of the Republic, and which, after due consideration have received your personal sanction, shall by you be carried into full effect, and that you publicly and decisively instruct your subordinates that such laws exist, that they are binding on all functionaries and citizens, and that they are to be obeyed to the letter.

II. We think you are strangely and disastrously remiss in the discharge of your official and imperative duty with regard to the emancipating provisions of the new Confiscation Act. Those provisions were designed to fight Slavery with Liberty. They prescribe that men loyal to the Union, and willing to shed their blood in her behalf, shall no longer be held, with the Nations consent, in bondage to persistent, malignant traitors, who for twenty years have been plotting and for sixteen months have been fighting to divide and destroy our country. Why these traitors should be treated with tenderness by you, to the prejudice of the dearest rights of loyal men, We cannot conceive.

III. We think you are unduly influenced by the counsels, the representations, the menaces, of certain fossil politicians hailing from the Border Slave States. Knowing well that the heartily, unconditionally loyal portion of the White citizens of those States do not expect nor desire chat Slavery shall be upheld to the prejudice of the Union–(for the truth of which we appeal not only to every Republican residing in those States, but to such eminent loyalists as H. Winter Davis, Parson Brownlow, the Union Central Committee of Baltimore, and to The Nashville Union)–we ask you to consider that Slavery is everywhere the inciting cause and sustaining base of treason: the most slaveholding sections of Maryland and Delaware being this day, though under the Union flag, in full sympathy with the Rebellion, while the Free-Labor portions of Tennessee and of Texas, though writhing under the bloody heel of Treason, are unconquerably loyal to the Union. So emphatically is this the case, that a most intelligent Union banker of Baltimore recently avowed his confident belief that a majority of the present Legislature of Maryland, though elected as and still professing to be Unionists, are at heart desirous of the triumph of the Jeff. Davis conspiracy; and when asked how they could be won back to loyalty, replied “only by the complete Abolition of Slavery.” It seems to us the most obvious truth, that whatever strengthens or fortifies Slavery in the Border States strengthens also Treason, and drives home the wedge intended to divide the Union. Had you from the first refused to recognize in those States, as here, any other than unconditional loyalty–that which stands for the Union, whatever may become of Slavery, those States would have been, and would be, far more helpful and less troublesome to the defenders of the Union than they have been, or now are. (more…)

Lincoln as Legal Thinker

The above scene from the movie Lincoln (2012) displays well Lincoln’s strengths as a legal thinker.  Lincoln had an ability to take abstract concepts, think about them in concrete terms, and twirl them around in his mind looking at them from various angles, many of which would not be obvious at first glance.  The screenplay captures this ability of Lincoln:

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 – 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. Two years ago I proclaimed these people emancipated – “then, thenceforward and forever free.”

But let’s say the courts decide I had no authority to do it. They might well decide that.

Say there’s no amendment abolishing slavery. Say it’s after the war, and I can no longer use my war powers to just ignore the courts’ decisions, like I sometimes felt I had to do. Might those people I freed be ordered back into slavery? That’s why I’d like to get the Thirteenth Amendment through the House, and on its way to ratification by the states, wrap the whole slavery thing up, forever and aye. As soon as I’m able. Now. End of this month. And I’d like you to stand behind me. Like my cabinet’s most always done.

This reflects the way Lincoln reasoned on legal issues as the following demonstrates:

To the Senate and House of Representatives [1]
July 17, 1862

Fellow-Citizens of the Senate, and House of Representatives,

Considering the bill for “An act to suppress insurrection, to punish treason, and rebellion, to seize and confiscate the property of rebels, and for other purposes” and the Joint Resolution [explanatory of said act,] [2] as being substantially one, I have approved and signed both.

Before I was informed of the passage of the Resolution, I had prepared the draft of a Message, stating objections to the bill becoming a law, a copy of which draft is herewith transmitted.

[ABRAHAM LINCOLN]

[July 17, 1862.]

Fellow citizens of the House of Representatives

I herewith return to your honorable body, in which it originated, the bill for an act entitled “An act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes” together with my objections to it’s becoming a law.

There is much in the bill to which I perceive no objection. It is wholly prospective; and it touches neither person or property, of any loyal citizen; in which particulars, it is just and proper. The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and persons who shall “incite, set on foot, assist, or engage in any rebellion, or insurrection, against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to any such existing rebellion, or insurrection” By fair construction, persons within these sections are not to be punished without regular trials, in duly constituted courts, under the forms, and all the substantial provisions of law, and of the constitution, applicable to their several cases. To this I perceive no objection; especially as such persons would be within the general pardoning power, and also the special provision for pardon and amnesty, contained in this act. It is also provided, that the slaves → of persons convicted under these sections shall be free. I think there is an unfortunate form of expression, rather than a substantial objection, in this. It is startling to say that congress can free a slave within a state; and yet if it were said the ownership of the slave had first been transferred to the nation, and that congress had then liberated, him, the difficulty would at once vanish. And this is the real case. The traitor against the general government forfets his slave, at least as justly as he does any other property; and he forfeits both to the government against which he offends. The government, so far as there can be ownership, thus owns the the [sic] forfeited ← slaves → ; and the question for Congress, in regard to them is, “Shall they be made free, or be sold to new masters?” I perceive no objection to Congress deciding in advance that they shall be free. To the high honor of Kentucky, as I am informed, she has been the owner of some ← slaves → by escheat, and that she sold none, but liberated all. I hope the same is true of some other states. Indeed, I do not believe it would be physically possible, for the General government, to return persons, so circumstanced, to actual slavery. I believe there would be physical resistance to it, which could neither be turned aside by argument, nor driven away by force. In this view I have no objection to this feature of the bill. Another matter involved in these two sections, and running through other parts of the act, will be noticed hereafter.

Go here to read the rest.  Lincoln wrote his first draft of the Emancipation Proclamation in late July and his mind was working on how an abstraction like freedom could be applied to the ugly realities of war and the practical realities of the existing law.

Published in: on April 14, 2021 at 5:30 pm  Comments Off on Lincoln as Legal Thinker  
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July 22, 1862: Lincoln Advises Cabinet of Emancipation Proclamation

One of the more momentous dates in American history.  On July 22, 1862, President Lincoln stuns his cabinet by showing them a preliminary draft of the Emancipation Proclamation.  Artist Francis Carpenter in February 1864 heard from Mr. Lincoln’s own lips about this cabinet meeting.  This was appropriate since Carpenter spent six months in the White House immortalizing the scene for future generations in his painting First Reading of the Emancipation Proclamation by President Lincoln which is at the bottom of this post.  Here is what Carpenter recalled Lincoln saying:

“It had got to be,” said he, “midsummer, 1862. Things had gone on from bad to worse, until I felt that we had reached the end of our rope on the plan of operations we had been pursuing; that we had about played our last card, and must change our tactics, or lose the game! I now determined upon the adoption of the emancipation policy; and, without consultation with, or the knowledge of the Cabinet, I prepared the original draft of the proclamation, and, after much anxious thought, called a Cabinet meeting upon the subject. This was the last of July, or the first part of the month of August, 1862.” (The exact date he did not remember.) “This Cabinet meeting took place, I think, upon a Saturday. All were present, excepting Mr. Blair, the Postmaster-General, who was absent at the opening of the discussion, but came in subsequently. I said to the Cabinet that I had resolved upon this step, and had not called them together to ask their advice, but to lay the subject-matter of a proclamation before them; suggestions as to which would be in order, after they had heard it read….. Various suggestions were offered. Secretary Chase wished the language stronger in reference to the arming of the blacks. Mr. Blair, after he came in, deprecated the policy, on the ground that it would cost the Administration in the fall elections. Nothing, however, was offered that I had not already fully anticipated and settled in my own mind, until Secretary Seward spoke. He said in substance: “Mr. President, I approve of the proclamation, but I question the expediency of its issue at this juncture. The depression of the public mind, consequent upon our repeated reverses, is so great that I fear the effect of so important a step. It may be viewed as the last measure of an exhausted government, a cry for help; the government stretching forth its hands to Ethiopia stretching forth her hands to the government.” His idea,” said the President, “was that it would be considered our last shriek, on the retreat.” (This was his precise expression.) “Now,’ continued Mr. Seward, ‘while I approve the measure, I suggest, sir, that you postpone its issue, until you can give it to the country supported by military success, instead of issuing it, as would be the case now, upon the greatest disasters of the war!'” Mr. Lincoln continued: “The wisdom of the view of the Secretary of State struck me with very great force. It was an aspect of the case that, in all my thought upon the subject, I had entirely overlooked. The result was that I put the draft of the proclamation aside, as you do your sketch for a picture, waiting for a victory.” (more…)

Published in: on July 22, 2012 at 5:30 am  Comments (2)  
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