Strengthening Constitutional Self-Government

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One Last Card to Play

On Principle, v12n1

April 2004

by Peter W. Schramm

Lincoln’s Emancipation Proclamation: The End of Slavery in America by Allen C. Guelzo Lincoln’s Emancipation Proclamation: The End of Slavery in America
Allen C. Guelzo (Simon and Schuster, 2004)

Since 1865, the New York State Library has been the proud owner of the original Preliminary Emancipation Proclamation. This is the document (you can read it in Lincoln’s hand at their website) in which Abraham Lincoln, as “President of the United States of America, and Commander-in-Chief of the Army and Navy thereof,” proclaimed on September 22, 1862, “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.”

There was a storm of reaction to the Proclamation. Some worried that this rash act would set off an uprising within the Union armies. Others denounced Lincoln for stirring up anarchy or race war. Radical abolitionists scorned the Proclamation. Democrats were furious. New York Governor Horatio Seymour described the Proclamation as a “bloody, barbarous, revolutionary, and unconstitutional scheme.” In October and November, Republicans suffered electoral losses in Pennsylvania, Ohio, Indiana, New York, and New Jersey. Union man George Templeton Strong in New York despaired: “All is up… The Historical Society should secure an American flag at once for its museum of antiquities.” A delegation of Kentuckians visited the White House on November 21 to urge Lincoln to take back the Proclamation. Lincoln replied that “he would rather die” than take back a word of it and continued to urge Kentucky to adopt voluntary emancipation.

On January 1, 1863, as promised, he issued the Emancipation Proclamation. In the introduction to its document, the New York State Library quotes the now famous letter written to Lincoln about these matters on July 31, 1863, by Hannah Johnson, a black freedwoman from Buffalo with a son in the 54th Regiment, New York Infantry: “They tell me, some do, you will take back the Proclamation, don’t do it. When you are dead and in Heaven, in a thousand years that action of yours will make the Angels sing your praises.”

Lincoln did not take back the Proclamation but instead pushed on, as events permitted, to its logical consequence, the 13th Amendment; and the angels have been singing for 140 years now. But the earthly choirs have never wholeheartedly joined in, which is why Allen C. Guelzo reflects that this “most revolutionary pronouncement ever signed by an American president” is also “surely the unhappiest.” Abraham Lincoln’s single greatest act, an act of spectacular political daring and wondrously good results, is best known for what it did not do.

Ask any high school student. If he has ever heard of the Emancipation Proclamation—and I am not giving odds that he has—he will know one thing about it: It didn’t really emancipate anybody. Moving up the ladder of learning into college or into the ranks of history teachers or scholars, you will hear variously that it was a frantic, improvised measure; it is a boring legalistic document that reads like a bill of lading; it accomplished nothing, and its very lack of eloquence tells us that it was meant to accomplish nothing; it was mere propaganda. A scholar of a certain bent will denounce it for violating the Constitution; another will sneer that it makes no mention of the immorality of slavery; a third, not meaning to be unfriendly, will take it as yet another proof that Lincoln—as he himself insisted!—was controlled by events, that these overwhelming events drove him willy-nilly from a more conservative to a more liberal policy, perhaps even driving him accidentally to give moral meaning to a morally meaningless war.

In different ways and for different reasons, those who keep the flame of our national memory have let it grow dim and flicker and cast shadows of manifold doubt on this greatest of the many great deeds of this greatest of all Americans. Some of this failure of memory is due to mere intellectual fashion, some to the re-fighting of wars lost long ago. In other cases it is the old story of small minds attributing their own petty motives to larger and better men confronting earth-shaking events. But it must also be said that this act and the statesmanship that lay behind it are no easy things to understand. The failure of our national memory to do them justice is at least in part attributable to the tremendous difficulty of doing so. It is never easy to give honor where great honor is due.

It is no small measure, then, of the value and importance of Allen Guelzo’s fine new book that it puts behind us conclusively these unhappy misunderstandings; but this is not the full measure. By clearing away these sad old errors, Guelzo, author of, Abraham Lincoln: Redeemer President (Eerdmans, 1999), makes possible his much greater achievement: to restore in its fullness to our memory and understanding this unrivalled act of American statesmanship. In accomplishing this, Guelzo demonstrates the rare discernment—I do not hesitate to say wisdom—required of the serious historian, and the poetry too: “so hard is it,” as Lincoln said, “to have a thing understood as it really is.” There is no more fitting praise for this book than to say that it is worthy of its subject.

Guelzo’s simple and highly ambitious aim is to understand Lincoln as he understood himself and to see through his eyes, in its true proportions, the act that Lincoln regarded as “the central act of my administration.” To do this Guelzo thinks one must understand Lincoln’s “prudence.” It is the “politics of prudence,” according to Guelzo, “which opens up for us a way to understand Lincoln’s strategy in ’the mighty experiment’ of emancipation.” Guelzo takes pains to emphasize that this is no pinched prudence of caution or of mere calculation. It is a commanding practical wisdom, in the fullest classical sense of that eminent virtue, that chooses the right means, for the right reasons, to the right ends in the most momentous and complex circumstances. This is the irreducible source of Lincoln’s actions; it is the ultimate standard to which he held himself. Guelzo’s judicious and elegant narrative shows Lincoln living up to this standard, astonishingly, amid the wildly violent clashing of armies, passions, interests, opinions, prejudices, fears, and ambitions of a country at war with itself.

Lincoln’s prudence, writes Guelzo, was rooted in an “unquestioning belief in universal natural rights” (I leave aside, in this connection, what Guelzo means by calling Lincoln “our last Enlightenment politician”). In the light of this moral truth, as Lincoln wrote, “If slavery is not wrong, nothing is wrong.” This unshakable moral conviction explains “the consistency with which,” contrary to standard accounts, “Lincoln’s face was set toward the goal of emancipation from the day he first took the presidential oath.” But this was not, and could not be, his only concern. “[P]rudence demanded that he balance the integrity of ends (the elimination of slavery) with the integrity of means (his oath to uphold the Constitution and his near-religious reverence for the rule of law).” Before ever taking office Lincoln had made perfectly clear that as president he would have no constitutional authority to abolish slavery where it currently existed; the fact that slavery was wrong was not a warrant to end it unilaterally. Lincoln had been unmoved by the abolitionists’ cry of “no union with slaveholders,” for the same reason that he would be unmoved by the many clamoring and self-righteous voices demanding the abolition of slavery at all costs. As Lincoln repeated, his “paramount object in this struggle is to save the Union,” a Union, one must add, “dedicated to the proposition that all men are created equal.” He always viewed emancipation, in Guelzo’s words, “as a goal to be achieved through prudential means, so that worthwhile consequences might result. He could not be persuaded that emancipation required the headlong abandonment of everything save the single absolute of abolition, or that the purity of intention was all that mattered, or that the exercise of the will rather than the reason was the best ethical foot forward.” Yet Lincoln knew full well, according to Guelzo, 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.”

In his constant determination to find a way to end slavery, Lincoln always sought an abolition that would be gradual, compensated, voluntary, lawful, and permanent. In the desperate circumstances of civil war, he could never ignore the effect of any particular plan of emancipation on the survival of the Union, whether this effect operated upon the electoral chances of the Republicans, or the morale of the army, or the disposition of the slave-holding Border States whose adherence to the Union was essential to survival. On the other hand, as Guelzo points out, the desperate fact of the war had also “made necessary the use of certain ’indispensable means’—chiefly emancipation—which might not, under normal circumstances, be constitutional.” Republican Senator Charles Sumner, following suggestions made by John Quincy Adams 20 years earlier, had urged Lincoln as early as the attack on Fort Sumter to consider that “under the war power the right had come to him to emancipate the slaves.” But Lincoln’s prudent constitutionalism was such that he would not resort to “indispensable means” until they were indispensable. Such means could win the game only if forced into play as the last card. He “would resort to those means only because they were ’indispensable to the preservation of the Constitution,’ and because he could not turn aside from using them without risking ’the wreck of government, country, and Constitution all together.’”

Lincoln rejected or overturned several efforts of his generals to emancipate slaves, not only because they encroached upon his authority as Commander-in-Chief and threatened to alienate the Border states and to divide Republicans in Congress, but because they jeopardized the cause of emancipation itself. These efforts variously tried to free slaves by counting them as contrabands of war, by confiscating them as property, or by simply declaring martial law. Guelzo points out that “[t]he common defect in all three devices…was their lack of permanence.” “And none of the three methods did anything to slavery itself, which would remain perfectly legal no matter how many individual slaves were emancipated.” If any one of these methods failed to survive a court challenge, “the prospect for all future emancipation would be set back just as Taney’s decision in Dred Scott had set back the struggle to keep slavery out of the territories.”

Lincoln’s unrelenting efforts to introduce emancipation into the Border states are vivid illustrations of his resolution to end slavery where and when he could and of the exasperating obstacles that stood in his way. He wanted to accomplish this, according to Guelzo, “with as little arm twisting as possible.” As Lincoln said, “We should urge it persuasively, not menacingly—” But while the Border states resisted voluntary emancipation, many abolitionists insisted that it be forced upon them, and in the meantime the war offered its own compelling arguments. After repeated failures, Lincoln met with Border state congressmen yet again in July 1862. He virtually begged them to choose compensated emancipation voluntarily. At the same time he warned them that “the unprecedentedly stern facts of our case” could no longer be ignored. It might be that if reason could not persuade the Border states to do the right thing in the right way, events might force them to do it quite otherwise. If they did not “make a decision at once to emancipate gradually… the institution in your states will be extinguished by mere friction and abrasion—by the mere incidents of the war… and you will have nothing valuable in lieu of it.” Their response: “Confine yourself to your constitutional authority.”

The following day, while attending the funeral of the infant son of Secretary of War Edwin Stanton, Lincoln told his cabinet members William H. Seward (Secretary of State) and Gideon Welles (Secretary of the Navy) that “he had given it much thought and had about come to the conclusion that it was a military necessity absolutely essential to the salvation of the Union, that we must free the slaves or be ourselves subdued.” He had “about” been driven by events to play his last card, to use, as Guelzo puts it, that “vaguely defined category of presidential prerogatives known as the ’war powers’” to effect ends he had always pursued through every other available means.

On July 22, 1862, Lincoln revealed to his cabinet the first draft of a design for emancipation. Although he invited a “free discussion” among the cabinet members, the discussion was not to be about whether or not he should issue this “order.” That was already “settled in his own mind.” The draft, as Guelzo explains, “identified the legal rationale for emancipation, the schedule by which he would do it, the people who were legally affected by it, and the new legal condition those same people would enjoy.” The authority he used was the war powers of the president as “Commander-in-Chief of the Army and Navy of the United States.” Guelzo writes: “Without actually laying aside the offer of compensated emancipation for those willing to take it, Lincoln would completely rewrite the title deeds of the South’s four million slaves to make them, at one stroke, free.”

During and after this meeting, Seward persuaded Lincoln that such a proclamation, if issued now when the Union cause was seen to be in great disarray, would “be viewed as the last measure of an exhausted government, a cry for help.” Seen in this light, the Proclamation could have a disastrous effect on the disposition of foreign powers toward the Union. Lincoln agreed to wait for a military victory before issuing the Proclamation. Several weeks later, when Lee’s armies entered Maryland on September 4, Lincoln said that he resolved to issue the Proclamation once Lee was driven out. “I made a solemn vow before God that if General Lee was driven back…I would crown the result by the declaration of freedom to the slaves.” The Battle of Antietam on September 17, the bloodiest day of the Civil War, turned out to be the victory Lincoln was waiting for. Lee was driven back (and should have been totally defeated, but that’s another matter), and Lincoln had confirmation of it by September 20, a Saturday. Without fanfare, he called a cabinet meeting for Monday, September 22, and submitted his draft of the Preliminary Emancipation Proclamation. He told his cabinet it was “my last card…and I will play it and may win the trick.”

Even after issuing the Emancipation Proclamation, Lincoln continued to try mightily to get Border states to agree to compensated emancipation, and he had some eventual success. He also would not be moved to extend the Proclamation, as he was pressed to do, to the rest of occupied Virginia and Louisiana because “the original proclamation has no constitutional or legal justification, except as a military measure,” and “military necessity did not apply to the extended areas.” If he were to take such a step, Lincoln asked, must he not do so “without the argument of military necessity, and so without any argument, except the one that I think the measure politically expedient, and morally right? Would I thus not give up all footing upon constitution or law? Would I thus not be in the boundless field of absolutism?”

Guelzo reflects on this: “It is one of the greatest of American historical oddities that the document Lincoln labored so studiously to keep within the bounds of the Constitution should be the very document his critics exhibit as proof that Lincoln had no regard for the Constitution or else regarded it as somehow spiritually inferior to the Declaration of Independence.” As Guelzo makes abundantly clear, this man of the Declaration was no less a man of the Constitution. His was “the kind of prudence that regarded constitutional means as being fully as sacred as abolitionist ends. Prudence drove Lincoln to seek emancipation, not through a righteous imposition that ignored the Constitution as ’a covenant with hell’ but through a legislative solution.”

Was the Proclamation a military asset? Guelzo argues persuasively that it was, both in the numbers of men freed (almost 20% of the Southern slave population deserted to the Union lines by the end of the war) and the numbers joining the Union Army (nearly 200,000 by the end of the war). Also, Guelzo argues, the Proclamation “went deeper, like a stake in the heart of slavery’s collective psyche, and the dread grew in white Southerners as they beheld around them people who would not consent any longer to be things.” It also had the effect of pulling the Union together, and public opinion—with Lincoln’s help—eventually moved in his direction. Far from setting off an uprising within the Union armies, it had the opposite effect—the soldiers seemed to fight with more purpose, and Lincoln’s many reluctant generals embraced both emancipation and black recruitment.

There were no mass deportations to Africa, no slave uprisings, no race war, as many had warned there would be. And after the Proclamation, no foreign power seriously contemplated recognizing the Confederacy. In Guelzo’s words, “Emancipation was now securely wedged into the war’s equation as a sine qua non of victory.” And the people newly freed would never be re-enslaved. “It can not be,” Lincoln said, “and it ought not be.” If ever there came a time when the Emancipation Proclamation would have to be abandoned, Lincoln said, “it would be an astounding breach of faith” and something that he himself would not participate in. “If the people should, by whatever mode or means, make it an executive duty to re-enslave such persons, another, and not I, must be their instrument to perform it.”

Lincoln’s prudent constitutionalism led him to see clearly from the beginning that the Emancipation Proclamation itself was fragile. As Guelzo writes, “it was precisely his constitutionalism that never allowed any rest to his anxieties that a presidential proclamation based on the concept of war powers might not survive a postwar challenge in the civil courts.” Lincoln’s determined support for the 13th Amendment was a continuation of the course he had pursued from the day he took office. He insisted that the amendment be part of his party’s platform in 1864, and it was. He won the election, and on January 31, 1865, the necessary two-thirds vote of Congress was barely achieved. Before sending the amendment to the states for ratification, Lincoln insisted on signing the measure, although it was unnecessary for him to do so. As he had done with the Emancipation Proclamation, and contrary to his usual practice, he signed his whole name, Abraham Lincoln.

A crowd of jubilant serenaders appeared at the White House, and Lincoln took the opportunity to say a few words to them. Guelzo describes the scene: Lincoln said that he had been fearful that “’a question might be raised whether the proclamation was legally valid’ or whether the Proclamation alone ’would have no effect upon the children of the slaves born hereafter.’ But a constitutional amendment ’is a King’s cure for all the evils.’ It was the ultimate legislative solution. ’It winds the whole thing up.’”

Peter W. Schramm is the Executive Director of the Ashbrook Center. This review originally appeared in the Claremont Review of Books, Volume IV Number 2, Spring 2004.

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