Saturday, November 29, 2014

Lincoln's Executive Order, The Emancipation Proclamation - Note for a Lecture, "E Pluribus Unum? What Keeps the United States United"

From: Todd Brewster, Lincoln's Gamble: The Tumultuous Six Months That Gave America the Emancipation Proclamation and Changed the Course of the Civil War (2014) [Presentation on video by the author]

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JB- How to save the Union? This thought-provoking book suggests that the Great Emancipator actually thought -- quite ironically -- that American unity could best be achieved by separating the races (probably not news to Lincoln experts). Yep, unity through separation (JB?) ... 

pp. 58-59:

Whatever the correct story of the Emancipation Proclamation's authorship, as Lincoln wrote it ... perplexing questions had to be going through his mind. He needed to craft an order that could withstand judicial scrutiny, but how? Could the slaves be freed without a constitutional amendment and, if so, under what power of Congress? They were, after all, "property," at least in a legal sense, and the Constitution protected private property from government taking. Yet if not as an act of Congress, how was emancipation to be realized? Certainly an executive order of emancipation would be beyond the powers of the president, but not, Lincoln concluded, if such an order were issued as furtherance of the executive's war powers. ... [H]e [Lincoln] was determined to emancipate the slaves as an act of military necessity.

For Lincoln, then, the Emancipation Proclamation had to be written with great care to emphasize this power and only this power. The ironies were rich: if he freed the slaves as an act of military necessity, its justification was not moral, but strategic. None of the usual Lincoln poetry about the evils inherent to one man's serving as a master to another -- none of this -- had any place in the document. Since military strategies are by definition provisional, to be lifted once the mission is complete, emancipation as Lincoln was writing it could only be temporary. Then, too, as an act of war, the freeing of the slaves for reasons of military necessity could only be done for the slaves in the Confederate states, in the states actually in rebellion. Since there was no military necessity to free slaves in states that were not in rebellion  -- Kentucky, for instance, and Maryland and Delaware, or even in those parts of the states in rebellion where the Confederacy had already surrendered -- those slaves would be left in their shackles, untouched by the proclamation. This meant that ... Lincoln, a man history admires for his profession of moral absolutes, was authoring a document of astonishing relativity -- freedom for a time only and only for some, not all.

pp. 63-64:

[M]ost white Americans, even Northern white Americans, were for preserving the Union but against emancipating the slaves. ...

Emancipation might ... prove a failure even as a military tactic, either because the freed slaves would choose to stay with their masters and fight for the South, bolstering the Southern cause rather than eroding it, or because freeing the slaves would precipitate what so many, including Lincoln, had long dreaded: an all-out race war, a bloody expression of long-suppressed rage that would spread uncontrollably, engulfing the nation. Congress's decision to end the slave trade in 1807 had been driven in part by this fear, for if the flow of slaves from Africa continued unimpeded, it could have led to what some worried would be a "dangerous" imbalance of the races, threatening white rule.

p. 81:

Given that laws prohibiting miscegenation were in force until 1967, when the Supreme Court in Loving v. Virginia overturned the state's 1924 Racial Integrity Act, it may be too much for us to expect that ... Lincoln, or even the most Radical Republicans pushing to end slavery in the mind-nineteenth century, sought a society that blended races into a vast reproductive melting pot. They had probably not even thought that far, and they could never have imagined that less than 150 years later the nation would elect a president who was a product of interracial marriage.

p. 90:

What alternative, what middle ground between emancipation and the continuance of slavery, was there that could end the war, keep the Union intact, and at the same time address the moral wrong that he [Lincoln] and so many others believed slavery to be?

Th[is] ... question had an answer, unsatisfactory as it may have appeared to Lincoln at the time, and loathsome as it was to so many progressive minds of the day: colonization. Free the slaves and then send them away along with all other free members of their race, send them to some far-off place so that the dreaded race war would never materialize, so that the end of slavery would not mean the beginning of equality, so that Negro and white man would not need to find peace with each other, so North and South would end their blood-spattered quarrel, so America could remain a white, Anglo-Saxon nation -- and all as the ghastly and merciless institution that had started it all was brought to an end.

p. 91:

It was a fascinating dichotomy: while the religious leaders saw colonization as a way of eventually ending slavery, plantation owners saw it as a way of protecting slavery from those who sought to subvert it. Yet both converged on the same plan.

p. 93:

By 1847, the country of Liberia [see] ... had declared its independence. Still, the colonization never had the impact that its founders intended; opposition from abolitionists at home and from African tribes in Liberia, who were resentful of the intrusion on their shores, kept the numbers of repatriating blacks low.

pp. 100-103:

On August 14, 1862, in what ... [was] described later as the first time that an American president had hosted "colored men" at the White House, Lincoln, his draft of the Emancipation still known to only the cabinet and a few close friends and advisers, entertained five black American leaders with the purpose of encouraging them to start a mass exodus from America and rid the nation of its "race problem" forever. ...

"You and we are different races," Lincoln said. "Even when you cease to be slaves, you are yet far removed from being placed on an equality with the white race....It is better for us both, therefore, to be separated." Lincoln told the group that it was their presence in a white society -- not slavery, not Southern secession -- that was the root cause of this terrible war, and slavery had done this to the white race. ...

Among the most vocal critics of the emigration plan was the former slave Frederick Douglass. ...

Douglass seized upon Lincoln's claim that the slaves were responsible for the war. "A horse thief pleading that the existence of the horse is the apology for his theft or a highway man contending that the money in the traveler's pocket is the sole first cause of his robbery are about as much entitled to respect as is the President's reasoning at this point. No, Mr. President, it is not the innocent horse that makes the horse thief, not the traveler's purse that makes the highway robber, and it is not presence of the Negro that causes this foul and unnatural war, but the cruel and brutal cupidity of those who wish to possess horses, money and Negroes by means of theft, robbery, and rebellion."

p. 110:

He [Lincoln] knew that he would not free all the slaves -- he was firm in his belief that he did not have constitutional power to do so -- and yet he had already freed some of the slaves through the Confiscation Acts [see], which he had signed (even though he had not supported them because he thought these, too, were unconstitutional). Slavery had been abolished in the District of Columbia through a legislative act signed by Lincoln in April [1862].

pp. 158-160:

The best that Lincoln could do ... to lighten the appearance of an executive power grab [by the Emancipation Proclamation] was to incorporate quotes from legislative acts that, while superfluous to the proclamation, at least suggested that the Congress had expressed its will in similar terms -- that it, too was inching toward emancipation even if it did not have the constitutional power to grant it. He included in the Preliminary Proclamation [September 1862 --which preceded the final version of Proclamation on January 1, 1863] of the Article of War, for instance, passed in March [1862], which had finally ended the practice of Union soldiers returning fugitive slaves to their rebel masters. He also included the text of the second Confiscation Act. There, Congress had declared the slaves of the Confederate civilian and military officials involved in the rebellion (and those "who shall in any way give aid or comfort thereto") "forever free of their servitude." That phrasing -- "forever free" -- was significant here because in the meat of the Preliminary Proclamation  Lincoln used the same phrase to apply to all slaves being held in rebel states: "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[see also below, pp. 231-235]." Lincoln seemed to be suggesting that he was only doing what Congress wished it could do but could not by the dictates of the Constitution. ...

pp. 211-213:

In [December]1862, it was not Lincoln ... but the secretary of state ... who delivered all 8,443 words of Lincoln's Annual Message [to Congress]. ...

Offering that he could not improve on the spirited language he had used in his first Annual Message, one year earlier, Lincoln reiterated his belief that the only difference between North and South was that "one section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended." This, he wrote, was not sufficient reason to rend the country, and anyway, such a split would lack the prospect of longevity. Since the geography itself could not change nor could an impassable wall be built between North and South, the earth would always unite the people of Indiana with the people of Kentucky and the people of Kentucky with the people of Tennessee. Why, one could walk across the border, wade across it where it was formed by a river. If anything, the contiguous nature of the states would continue to force them together, "however much of blood and treasure the separation might have cost." ...

Lincoln proposed three constitutional amendments. One would make "forever free" those slaves who "enjoyed actual freedom by the chances of war." This referred not to those who would be freed by the Emancipation Proclamation -- his address, it was becoming clear, was an attempt to avoid the necessity for making the Preliminary Proclamation real -- but, instead, those who had been seized according to the Confiscation Acts or who had on their own effort or through some other series of accidents or actions otherwise made it to freedom. ... By contrast, the next two amendments were confounding in their nature, scope, and detail. Lincoln proposed compensation in the form of federal bonds to states that opted for a gradual emancipation by the year 1900, and should any state reintroduce slavery -- after all, nothing here made slavery illegal; it just regulated the practice -- it would have to repay the federal government with interest. Finally, he proposed federal funding for that persistent idea of colonizing "free colored persons" someplace outside the United States, though only with their consent. He acknowledged that Haiti and Liberia were willing to accept "such persons" as full and equal citizens, yet most American blacks, regretfully, did not seem inclined to move to those countries despite its being "in their interest" to do so. He worried that, for African-Americans, sudden and complete emancipation could only lead to lives of "vagrant destitution." Therefore, his plan of gradual emancipation and colonization would give them a better chance at success in freedom. If accepted, Lincoln's post-Civil War world would have looked like this: an end to the fighting now, slavery legal but on the path to a gradual disappearance over the next forty years, slaveholders compensated for forgoing the practice, freed slaves encouraged to leave the country, and all that a cost, so far, of 419, 979 casualties (230,196 of those on the Union side alone). This, in December 1862, was the plan of the man who would one day be known as the Great Emancipator.

pp. 231-235:

[O]n December 29 [1862], three days before New Year's Lincoln brought [his cabinet members] a draft of what would be the final Emancipation Proclamation text and read it aloud. ...

This draft differed slightly from what had been promised before. It still freed the slaves in the states in rebellion, justified emancipation as a war measure, and pledged the full forces of the federal government, including the efforts of the army and navy, to "recognize and maintain" that freedom. But in this newest version, Lincoln tried to soften fears that Union forces would encourage the dreaded "servile insurrection." The notion that slaves would eventually rise up "like so many wild beasts" ready to "devastate and devour" their former masters was shared in the North and South. Ironically, this fear had even been used as an argument for emancipation. ...

Of course, if ever there was an image ripe for those fearful of servile insurrection, it had to be this one: freed slaves in crisp blue Union uniforms returning to the states where they once lived in captivity, armed for blood. ...

Throughout his drafts of the proclamation, Lincoln had written that the slaves are "then, thenceforward, and forever free." Perhaps because of his concern over the inherent clash between the limited nature of military necessity and the word forever, Lincoln had, in this final draft, substituted the more ambiguous term henceforward, as in "all persons held as slaves within said designated States and parts of States, are, and henceforward shall be free." But this still invited a critical challenge. If emancipation is not abolition, and if the powers to emancipate for military necessity are inherently temporary, then why couldn't those freed by the Emancipation Proclamation simply be re-enslaved once the war was over? ...

pp. 242-243:

Lincoln did have compunctions and was very uncertain. He had wanted to end slavery, but not this way, and even now, perhaps especially now, he feared the consequences of this act, that it might extend the war, not hasten its end; that it could permanently divide North from South; that it would lose him the Border States; that it would lead to a massacre of the slaves or their masters; that a society incorporating black and white could only result in a future of racial antagonism and violence. What is now heralded as one of the greatest acts in the advancement of human liberty, an act that christened Lincoln the Great Emancipator, that brought men and women to their knees in his presence as if he were divinely touched, was, in the mind of its author, a roll of the dice. ...

"We are like whalers who been long on a chase," Lincoln said not long afterward, reflecting, with trepidation, about what lay ahead. "We have at last got the harpoon into the monster, but we must now look how we steer, or with one 'flop' of his tail he will yet send us all into eternity."

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p. 249:

[E]mancipation and the subsequent recruitment of black soldiers helped to turn this from a war of armies into a war of societies, for that was how a civil war, or at least this civil war, had to be fought. ... To win, the North needed ... to squash every resource, free every slave, and, as Sherman finally showed, terrorize the population into submission. This [was a] new kind of war, a "total war," as historians have long described it . ...

p. 250:

The Emancipation Proclamation brought conclusion to a war that Lincoln had never wanted and to a vile human institution he despised but that he expected would survive his presidency and beyond. It led to the establishment of "equality" -- a notion that Lincoln had resisted, at least in its full-blown form -- as an American value on a par with "liberty" and made America officially a biracial (and, ultimately, a multiracial) country, which he had seen as an unrealistic and unsustainable dream.

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