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Civil War History: Historians' Forum

The Emancipation Proclamation

Jun 10th, 2013

1. Students who read the Emancipation Proclamation as a primary source are often surprised by its tone and language—to many, it seems like a cold and legalistic document reliant upon the imperatives of “military necessity” instead of a stirring moral commitment to emancipation. Is that a fair way to read the proclamation, or does such an analysis misinterpret its larger significance?

JO: The Emancipation Proclamation was written as a legal document because it was a legal document. Abolitionism wasn’t just red-hot speeches by Wendell Phillips and heart-wrenching stories by Harriet Beecher Stowe. For decades, abolitionist lawyers had been drafting judicial appeals and legal treatises and publishing them as antislavery pamphlets. Abolitionists studied the common law, constitutional law, statute law, the law of nations, and the laws of war. The law was central to abolitionism, and they wrote about it at length. That Lincoln wrote the proclamation as a legal text scarcely distinguishes it from one of the most important rhetorical traditions of the antislavery movement.

LM: It is essential to have students read both the preliminary Emancipation Proclamation and the final decree and to examine the differences between the two documents. Of course it reads legalistically—it was crafted as a military response warranted by Lincoln’s powers as commander in chief, which is not to say that it does not represent a commitment to emancipation. The shift between September 22, 1862, and January 1, 1863, highlights that commitment: Lincoln abandons colonization, authorizes the enlistment of black soldiers, and adds to the text, at Treasury Secretary Chase’s behest, the clause “sincerely believed to be an act of justice.”

MS: Indeed, Richard Hofstadter famously dismissed the Emancipation Proclamation as having all “the moral grandeur of a bill of lading” for its legalistic tone. Subsequently, others have argued that it was simply a war measure born of military necessity rather than any commitment to black freedom. Arguments that attack the proclamation for its lack of moral sentiment or that portray it merely as an act of military necessity not only miss out on the larger significance of what all, including Lincoln, acknowledged as a historic event and a turning point in the war but also do not do justice to the language and content of the proclamation itself. First, we need to think of its legal, military, political, and moral causes as interconnected, because that was precisely the way contemporaries viewed it. John Quincy Adams had long predicted that the only way the federal government could constitutionally abolish slavery was for the president to evoke his war powers. This was the argument abolitionists like Wendell Phillips and Frederick Douglass and Radical Republicans like Charles Sumner made at the very start of the Civil War. This argument, encapsulated in William Whiting’s popular wartime pamphlet, apparently influenced Lincoln. It is why the proclamation freed the slaves only in areas defined as being in rebellion at that moment. It went a bit further than the Second Confiscation Act passed earlier by Congress, which freed slaves of rebellious slaveholders but not all slaves in the Confederacy. But everyone knew that if slavery was abolished in the Deep South, it would not last long in the Union’s border slave states, with their far smaller enslaved populations. The significance of the proclamation lies in the fact that it was the death knell of slavery in the United States.

MSJ: The Emancipation Proclamation includes many remarkable phrases that are laden with meaning, such that I would ask any student who remarked to me that it was “cold and legalistic” to read it again. Take the phrase from paragraph 6 “are, and henceforward shall be free”—which conveys a view of emancipation as immediate and irreversible—or the passage “the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons.” Here, the proclamation obligates the federal state to honor and defend the freedom of former slaves in a dramatic departure from the terms of the Fugitive Slave Act of 1850, which obligated federal officials to aid in the return of fugitives. Finally, the proclamation recommends to former slaves that “in all cases when allowed, they labor faithfully for reasonable wages.” Slavery as a labor regime is upended as the proclamation envisions negotiations between former slaves and their employers over the “reasonable” terms of their work.

JO: As for “military necessity,” nearly all abolitionists believed that in peace- time the federal government had no constitutional authority to “interfere” with slavery in the states where it existed but that in times of war the federal government could emancipate slaves under the doctrine of “military necessity.” This was, and was understood to be a “radical antislavery argument. Slaveholders in the South and Democrats in the North roundly denounced what they viewed as the spurious doctrine of “military necessity.” They said it was a flimsy justification for a flagrantly unconstitutional assault on slavery. That Lincoln invoked “military necessity” to justify the proclamation demonstrates the triumph, not the failure, of the principles of the antislavery movement.

KM: It can be difficult for students to understand how Lincoln could have hated slavery and, at the same time, believed he had limited power to destroy it. And yet, if they are to understand Lincoln and the course of emancipation during the Civil War, they must consider that distinction. A close and contextualized reading of the proclamation allows for discussion of exactly why Lincoln believed that as commander in chief he had different powers in different places. If we know something about the congressional legislation and presidential policies that preceded the proclamation, we can understand how the phrase “henceforward shall be free” marked an important presidential endorsement of the (at the time) controversial idea that the government could actually transform chattel—however human—into a free person. Lincoln’s often unnoticed instructions to emancipated slaves to “abstain from violence” might open a conversation about northern and southern fears of slave uprisings and “race war.” And, of course, the proclamation’s provision that “persons of suitable condition” whom it “declared to be free” could now be received into the armed services was a major policy departure and the beginning of a strategy that reshaped the war itself.

LM: Kate’s important point about the line instructing slaves to “abstain from violence” marks a significant change from a sentence in the Preliminary Emancipation Proclamation that stirred great controversy. In it, Lincoln had written that the government “will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.” Opponents howled that the president was tacitly encouraging slave rebellion and insurrection. In the final proclamation, Lincoln allows for violence only “in necessary self-defence” and calls for the freed slaves, as Martha noted earlier, “to labor faithfully for reasonable wages.” Here was a hint at some vision of the future of free labor.

JO: This may be a distinction without a difference. Lincoln changed the wording for exactly the reason Lou mentions, but did that alter the substance? Lincoln still justified violence in self-defense, which meant that slaves could fight back against masters who commonly used violence to prevent slaves from escaping to Union lines. At the same time, the proclamation invited blacks, for the first time, into “armed” service in the Union army. As far as the slaveholders were concerned, Lincoln could not have made a more explicit call for revolutionary violence. So I’m not sure what changed with the change of wording.

MSJ: Jim Oakes is, of course, correct that the Emancipation Proclamation was a legal document, but it would be a mistake to assume that legal documents are typically or necessarily devoid of language that we think of as political or philosophical. Lincoln was no exception among mid-nineteenth century lawmakers when he framed the Emancipation Proclamation in terms that went well beyond the bound of his constitutionally prescribed authority; his audience was not constitutional experts. To persuade a broad readership, it ultimately deployed language that surpassed formal, law-bound terms. In this sense, perhaps the most remarkable section is the clause that fully sets out the proclamation’s rationale: “And upon this act, 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.” Yes, there is military necessity. But in this passage the proclamation is more than that. It is also an act of “justice,” coming out of the “judgment of mankind” writ large, out of the supreme law of the nation, the Constitution, and finally sanctioned by God. After reading the proclamation, students should understand how military necessity provided a specific legalistic rationale. Recognizing the element of military necessity should not preclude our ability to discern the full significance of the ideas expressed therein.

MS: The language of the proclamation, though guided by legal convention and constitutional scruples, does rise to the occasion. Lincoln tried to establish black freedom permanently in emphatic words, “are and hence- forward shall be free,” and on Salmon Chase’s suggestion, he labeled it an “act of justice” and, like the Declaration of Independence, evoked the “judgment of mankind” and divine favor. Lincoln spent his dying days trying to secure the passage of the Thirteenth Amendment, which would enshrine emancipation in the U.S. Constitution, not susceptible to being overturned by subsequent administrations, and saw it as the “central act” of his administration. As John Hope Franklin, in his slim book on the Emancipation Proclamation published on its centenary, argued, viewed from the longue durée it also seeded the notion of black equality. In calling for black enlistment in the Union army and navy, Lincoln not only acted out of military necessity but also laid out the path for African American male citizenship. As the National Black Convention of 1864 put it, are we good enough for bullets and not the ballot? Ironically, even as Lincoln abjured freed slaves to “abstain from all violence” except in self-defense, he invited them to don the Union uniform and take up arms against their masters. One could argue then in response to some of the points made by Kate, Lou, and Jim that the enlistment of black soldiers legitimized the notion of slaves using violence to free themselves by vesting it with state authority. In the end, the difference between the proclamation and the preliminary draft on this point may not be so significant. This could happen, of course, only in a wartime situation, where slaveholders had taken the first step in defining themselves as enemies of the state. The Emancipation Proclamation allied black freedom with the powers of the federal government and the Union cause.

JO: Is there any doubt that Lincoln had a moral commitment to emancipation? How many times did he have to say he “hated” slavery, that the whole idea of “property” in human beings was immoral, that slavery violated the founding principle of fundamental human equality, before we are ready to take him at his word?

MSJ: An effective approach one might use to help students understand the proclamation in its original context is to show them many of the remarkable broadside reproductions of the Emancipation Proclamation. Through these artifacts, we glimpse how it was that many Americans of the 1860s encountered the text. These were neither reproductions of the original manuscript nor the bare-bones texts that circulated during the war. They are interpretive works that tell us a great deal about the deep meanings that came to be associated with the proclamation. Some artfully use type size and font style to emphasize ideas from freedom to presidential authority. Others include the text of the proclamation surrounded by images of African Americans—with the “before” images depicting the horrors of slavery and the “after” images showing the promise of freedom. Lincoln is frequently featured—sometimes his portrait is modestly situated at the margins of the frame, and other times his visage literally is the image, such as when artists used the calligraphy “letter picture” technique,which adapted the text to render Lincoln’s likeness. And in still other broadsides, the proclamation’s text is set within a ring of portraits—Lincoln and his generals and cabinet, and even Lincoln and the abolitionists. We learn something new about how people understood the proclamation when we explore how they encountered it. There is nothing cold or legalistic about these broadsides, and students can understand both how the president carefully chose his words when drafting the document and how that document was reinterpreted through visual culture with great and perhaps new effect.

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