In these extracts we have the President’s outline explanation of the legal validity of the proclamation.
Continuing Lincoln’s Emancipation Proclamation,
with a selection from Abraham Lincoln, A History by John Hay and by John G. Nicolay published in 1890. For works benefiting from the latest research see the “More information” section at the bottom of these pages. For works benefiting from the latest research see the “More information” section at the bottom of these pages. This selection is presented in 7 installments, each one 5 minutes long.
Previously in Lincoln’s Emancipation Proclamation.
Time: 1862 – 1863
Place: The White House
And in the one already quoted, to Robinson, August 17, 1864: “Drive back to the support of the rebellion the physical force which the colored people now give and promise us, and neither the present nor any coming Administration can save the Union. Take from us and give to the enemy the hundred and thirty, forty, or fifty thousand colored persons now serving us as soldiers, seamen, and laborers and we cannot longer maintain the contest.”
So also in an interview with John T. Mills he said: ” But no human power can subdue this rebellion without the use of the emancipation policy and every other policy calculated to weaken the moral and physical forces of the rebellion. Freedom has given us 200,000 men, raised on Southern soil. It will give us more yet. Just so much it has subtracted from the enemy. . . Let my enemies prove to the country that the destruction of slavery is not necessary to a restoration of the Union; I will abide the issue.”
We might stop here and assume that President Lincoln’s argument is complete. But he was by nature so singularly frank and conscientious, and y by mental constitution so unavoidably logical, that he could not, if he had desired, do things or even seem to do them by indirection or subterfuge. This, the most weighty of his responsibilities and the most difficult of his trials, he could not permit to rest upon doubt or misconstruction. In addition to what we have already quoted he has left us a naked and final restatement of the main question, with the unequivocal answer of his motive and conviction. It has been shown above how Mr. Chase, in the discussions of the final phraseology of the January proclamation, urged him to omit his former exemptions of certain fractional parts of insurrectionary States. Despite the President’s adverse decision, Mr. Chase continued from time to time to urge this measure during the year 1863. To these requests the President finally replied as follows on the 2d of September:
Knowing your great anxiety that the Emancipation Proclamation shall now be applied to certain parts of Virginia and Louisiana which were exempted from it last January, I state briefly what appear to me to be difficulties in the way of such a step. The original proclamation has no constitutional or legal justification, except as a military measure. The exemptions were made because the military necessity did not apply to the exempted localities. Nor does that necessity apply to them now chap. xix. any more than it did then. If I take the step must I 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 not thus give up all footing upon Constitution or law t Would I not thus be in the boundless field of absolutism? Could this pass unnoticed or unresisted? Could it fail to be perceived, that without any further stretch I might do the same in Delaware, Maryland, Kentucky, Tennessee, and Missouri, and even change any law in any State?
In these extracts we have the President’s outline explanation of the legal validity of the proclamation. Like all his reasoning, it is simple and strong, resting its authority on the war powers of the Government and its justification upon military necessity. As to the minor subtleties of interpretation or comment which it might provoke from lawyers or judges after the war should be ended, we may infer that he had his opinions, but that they did not enter into his motives of action. On subsequent occasions, while continuing to declare his belief that the proclamation was valid in law, he nevertheless frankly admitted that what the courts might ultimately decide was beyond his knowledge as well as beyond his control.
For the moment he was dealing with two mighty forces of national destiny, civil war and public opinion; forces which paid little heed to theories of public, constitutional, or international law where they contravened their will and power. In fact it was the impotence of legislative machinery, and the insufficiency of legal dicta to govern or terminate the conflicts of public opinion on this identical question of slavery, which brought on civil strife. In the South slavery had taken up arms to assert its nationality and perpetuity; in the North freedom had risen first in mere defensive resistance; then the varying fortunes of war had rendered the combat implacable and mortal. It was not from the moldering volumes of ancient precedents, but from the issues of the present wager of battle, that future judges of courts would draw their doctrines to interpret to posterity whether the Edict of Freedom was void or valid.
When, in the preceding June, the crisis of the McClellan campaign had come upon the President, he had written his well-considered resolve: “I expect to maintain this contest until successful, or till I die, or am conquered, or my term expires, or Congress or the country forsakes me.” Grand as was the historical act of signing his decree of liberation, it was but an incident in the grander contest he was commissioned and resolved to maintain. That was an issue, not alone of the bondage of a race, but of the life of a nation, a principle of government, a question of primary human right.
Was this act, this step, this incident in the con test, wise or unwise? Would it bring success or failure? Would it fill the army, weaken the enemy, inspirit the country, unite public opinion? These, we may assume, and not a lawyer’s criticisms of phrase or text, dictum or precedent, were the queries which filled his mind when he wrote his name at the bottom of the famous document.
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