Constitutional Basis of the Proclamation

I am naturally antislavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think and feel.

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. 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

Since several eminent lawyers have publicly questioned the legal validity of Mr. Lincoln’s Edict of Freedom, — as his final Emancipation Proclamation may be properly styled, — it is worthwhile to gather, if possible, Mr. Lincoln’s own conception and explanation of the constitutional and legal bearings of his act. There is little difficulty in arriving at this. His language, embodied in a number of letters and documents, contains such a distinct and logical exposition of the whole process of his thought and action, from the somewhat extreme conservatism of his first inaugural to his great edict of January 1, 1863, and the subsequent policy of its practical enforcement, that we need but arrange them in their obvious sequence. The proper beginning is to be found in a letter of April 4, 1864, to A. G. Hodges, of Frankfort, Kentucky. In this he says:

I am naturally antislavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think and feel, and yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand, however, that my oath to preserve the Constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that Government — that nation, of which that Constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution by general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. I could not feel that, to the best of my ability, I had even tried to preserve the Constitution, if, to save slavery or any minor matter, I should permit the wreck of Government, country, and Constitution all together. When, early in the war, General Fremont attempted military emancipation, I forbade it, because I did not then think it an indispensable necessity. When, a little later, General Cameron, then Secretary of War, suggested the arming of the blacks, I objected because I did not yet think it an indispensable necessity. When, still later, General Hunter attempted military emancipation, I again forbade it, because I did not yet think the indispensable necessity had come. When in March and May and July, 1862, I made earnest and successive appeals to the border States to favor compensated emancipation, I believed the indispensable necessity for military emancipation and arming the blacks would come unless averted by that measure. They declined the proposition, and I was, in my best judgment, driven to, the alternative of either surrendering the Union, and Lincoln with it the Constitution, or of laying strong hand upon the colored element. I chose the latter.

The question of legal and constitutional validity he discusses briefly, but conclusively, in his letter of August 26, 1863, to James C. Conkling of Springfield, Illinois. In this, addressing himself to his critics, he says: ” You say it is unconstitutional. I think differently. I think the Constitution invests its Commander-in-Chief with the law of war in time of war. The most that can be said, if so much, is, that slaves are property. Is there, has there ever been, any question that, by the law of war, property, both of enemies and friends, may be taken when needed! And is it not needed whenever taking it helps us or hurts the enemy t Armies the world over destroy enemies’ property when they cannot use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves or hurt the enemy.”

Admitting the general principle of international law, of the right of a belligerent to appropriate or destroy enemies’ property, and applying it to the constitutional domestic war to suppress rebellion which he was then prosecuting, there came next the question of how his military decree of enfranchisement was practically to be applied. This point, though not fully discussed, is sufficiently indicated in several extracts. In the draft of a letter to Charles D. Robinson he wrote, August 17, 1864: “The way these measures were to help the cause was not to be by magic or miracles, but by inducing the colored people to come bodily over from the rebel side to ours.” And in his letter to James C. Conkling of August 26, 1863, he says: “But negroes, like other people, act upon motives. Why should they do anything for us if we will do nothing for them? If they stake their lives for us, they must be prompted by the strongest motive, even the promise of freedom. And the promise, being made, must be kept.”

The actual tangible military result which he declares was his constitutional and legal warrant for his edict of military emancipation is set forth in the following extracts. Whether we judge it by the narrow technical rules of applied jurisprudence, or by the broader principles of the legal philosophy of Christian nations, it forms equally his complete vindication. In the draft of a letter to Isaac M. Schermerhorn he wrote, September 12, 1864: “Any different policy in regard to the colored man deprives us of his help, and this is more than we can bear. We cannot spare the hundred and forty or fifty thousand now serving us as soldiers, seamen, and laborers. This is not a question of sentiment or taste, but one of physical force, which may be measured and estimated as horse power and steam to power are measured and estimated. Keep it, and you can save the Union. Throw it away, and the Union goes with it.”

Hay and Nicolay begins here. Abraham Lincoln begins here.

More information here and here, and below.

We want to take this site to the next level but we need money to do that. Please contribute directly by signing up at https://www.patreon.com/history