This address by Dr. Mackubin Owens was given at The Institute of World Politics on February 11, 2016. A video of this lecture may be found here.
February 12, 2016 marks the 207th anniversary of Abraham Lincoln’s birth. Although Lincoln is widely revered by the American people, that reverence is not universal. Some on today’s political right condemn him for what they claim to be his violations of the Constitution, his alleged trampling of civil liberties, and his conduct of the war. Meanwhile, many on today’s political left condemn him for hesitating to free the slaves, insinuating that he was a racist who did not care about Black freedom.
Interestingly, these current charges against the 16th president mirror those made by many of his contemporaries. Many Democrats at the time believed that Lincoln was acting the tyrant and that his efforts to end slavery were not sanctioned by the Constitution. On the other hand, Radical Republicans and abolitionists faulted him for moving too slowly against slavery.
But what his critics both now and then fail to recognize is that Lincoln had only one constitutional duty: to suppress the rebellion and restore the Union, and to do this he had to maintain a working coalition of, on the one hand, his own Republican party, which sought to end slavery and on the other, “War Democrats,” who were willing to fight to restore the Union but who did not want to interfere with slavery.
In addition-and this is critically important to understand-Lincoln had no power to end slavery on his own. In this age of executive overreach when our current president seems to believe that he may do whatever he wants “with a phone and a pen,” it is imperative for us to understand that Lincoln accepted the fact that he was constrained by the Constitution, which granted the Federal government no authority over the institution of slavery in the states where it existed. This authority lay strictly with the states themselves. Thus Lincoln could not, as one recent critic has written, simply end slavery with the stroke of a pen.
Lincoln clearly and concisely conveyed his understanding of his constitutional responsibility to save the Union and preserve the Constitution in a famous letter to Horace Greeley:
I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored, the nearer the Union will be to “the Union as it was”….My paramount object in this struggle is to save the Union, and it is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone I would also do that.
Some critics of Lincoln contend that this letter illustrates an indifference slavery. But it is instead an indication of his prudent approach to the issue. Indeed, the architectonic virtue guiding Lincoln’s entire conduct of the war was prudence.
According to Aristotle, prudence is concerned with deliberating well about those things that can be other than they are (means). In political affairs, prudence requires the statesman to be able to adapt universal principles to particular circumstances in order to arrive at the means that are best, given existing circumstances. For Lincoln to achieve the end of preserving the Union and thereby republican liberty, he had to choose the means necessary and proper under the circumstances. Aristotle calls prudence the virtue most characteristic of the statesman. And it is through the prism of prudence that we must judge Lincoln’s approach to emancipation in the context of the conduct of a war to save the Union.
The fact is that the Republican Party in general and Lincoln in particular desired the end of slavery but domestic politics required a prudent approach. The Republican Party grew out of the anger generated in both the Whig and the Democratic parties by the Kansas-Nebraska Act of 1854, which repealed the Missouri Compromise prohibiting the expansion of slavery into the territories formed out of the old Louisiana Purchase and lying north of Missouri. But as James Oakes shows in his splendid book, Freedom National, the Republicans inherited a coherent set of antislavery principles formulated long before the Nebraska controversy. This antislavery consensus shaped the policies of the Lincoln administration and Congress toward slavery once the war began.
This antislavery consensus was based on four main principles: 1) that the Founding generation suffused the Constitution with the principles of natural law and the law of nations, which held that man’s natural condition is freedom, in other words that the Constitution is inseparable from Declaration of Independence; 2) that the presumption of freedom recognized by the Constitution could be overridden only by local or municipal law-in other words freedom was “national,” holding sway wherever the Constitution was sovereign, e.g. in the Federal territories and on the high seas, while slavery was “local,” limited to state jurisdiction; 3) that while the Constitution placed slavery in the states where it existed beyond the reach of the federal government, the Constitution did enable the Federal Government to limit the expansion of slavery, as Congress had done with the Northwest Ordinance and the Missouri Compromise; 4) that the slavery compromises of the Federal Constitution never included the idea that slaves were property-there could be no such thing as “property in man. “
Republicans firmly believed that these principles provided the basis for a Federal assault on slavery once Lincoln and a Republican Congress took office, again notwithstanding the fact that the Constitution prohibited the Federal government from interfering with slavery in the states where it existed. To begin with, Lincoln and the Republicans argued that, based on the precedents of the Northwest Ordinance and the Missouri Compromise, the federal government could prohibit the expansion of slavery into the Federal territories. Thus, if the slave states remained in the Union, the federal government could, Republicans believed, construct a “cordon of freedom” around them. To this end, the Republicans intended to ban slavery from all the western territories, abolish slavery in Washington, D.C., withdraw federal protection of slavery on the high seas, and deny admission to any new slave states. Some Republicans-although not Lincoln himself-even sought to prohibit federal enforcement of the fugitive slave of 1850.
With slavery’s growth curtailed, Lincoln believed that a policy of gradual compensated emancipation would bring about the end of the institution. Lincoln’s plan was to convince the legislatures of the slave states to abolish slavery in return for federal money to compensate slave owners. The Republican logic of 1860 held that abolition would begin in the northernmost slave states – Delaware, Maryland, Kentucky, and Missouri – where slavery was weakest. As more free states-carved out of the free Federal territories in the West-joined the Union and as more slave states abandoned the institution, slavery would become uneconomical and be placed back on the eventual road to extinction that Lincoln believed the Founders had envisioned. In other words, it would wither and die.
Even after the war broke out, Lincoln continued to pursue this option. But secession by the slave states opened the way for another means to attack slavery: immediate, uncompensated military emancipation in the disloyal states, justified under the war power of the Constitution. Thus, states that remained loyal during the Rebellion would be provided the opportunity to accept peaceful, gradual, compensated abolition of slavery. But secession meant a war of rebellion, and such a war meant immediate, uncompensated military emancipation. Although Republicans understood that the only constitutional justification for prosecuting the war was to restore the Union, they also recognized that the effect of the war would most likely be the destruction of slavery, an outcome that they welcomed. Of course, they understood that military emancipation had its limits: Although it could free individual slaves, it could not end the institution of slavery outright. That would finally require a constitutional amendment.
It is important to recognize that actual emancipation began long before Lincoln issued his preliminary Proclamation. Indeed, the Union attack on slavery began as early as May 1861, as escaped slaves sought refuge within Union lines in Virginia. At first, Union policy regarding fugitive slaves was disjointed. Without War Department guidance, the policy varied from command to command. Thus in the West, Major General Henry Halleck issued General Order No. 3, ordering his subordinate commanders to return fugitive slaves, while Major General Benjamin Butler in Virginia treated escaped slaves as “contrabands” of war.
Soon thereafter, the War Department moved toward the “Butler Policy.” Subsequently, the Lincoln administration, Congress, the War Department, and the slaves themselves began to work in tandem to attack slavery. Milestones included two confiscation acts passed by Congress in 1861 and 1862, a revised Militia Act, Lincoln’s Emancipation Proclamation, and the enlistment of black soldiers in the Union army. It culminated in the passage of the Thirteenth Amendment to the Constitution, which finally drove a stake through the heart of the institution.
From a military standpoint, emancipation was a war measure designed to attack the Southern economy directly. As Halleck wrote to Major General Ulysses Grant in 1863, “the character of the war has very much changed within the last year. There is now no possible hope of reconciliation. . . . We must conquer the rebels or be conquered by them. . . . Every slave withdrawn from the enemy is the equivalent of a white man put hors de combat.” In addition, to the extent that slaves freed by Federal troops came under control of Union forces, they could be substituted for soldiers who were required to labor, freeing them up to fight. Thus emancipation had the effect of transferring labor from South to North, increasing the fighting potential of Union armies while decreasing that of the Confederate armies.
As Gideon Welles, Lincoln’s secretary of the Navy, recalled, the president called emancipation “a military necessity, absolutely essential to the preservation of the Union. We must free the slaves or be ourselves subdued. The slaves were undeniably an element of strength to those who had their service, and we must decide whether that element should be with us or against us.” As Frederick Douglass had observed, slavery was indeed the “stomach” of the Rebellion.
But as he worked to end slavery, Lincoln had to tread carefully for domestic political reasons, because emancipation was denounced by conservative Democrats in the North and loyal slaveholders in the slave states that remained in the Union. Lincoln believed he needed both groups if he was to prosecute the war successfully. As Oakes argues, “[d]uring the first year of his administration, Lincoln was discreet about his approach to slavery, but there was no mistaking the [antislavery] substance of his policies.”
As noted before, Lincoln approached emancipation according to the dictates of prudence. Accordingly, he was denounced by War Democrats for moving too fast and by the Radicals for moving too slowly. For instance, he angered the Radicals soon after the war began by reversing an emancipation proclamation issued in Missouri by Major General John C. Fremont. He did so for sound reasons. First, Fremont was invoking emancipation for political rather than for military reasons. This was, Lincoln believed, unconstitutional.
Second, allowing Fremont’s action to stand was likely to antagonize the loyal slave states, providing them an incentive to join the Confederacy. As he wrote to Orville Browning, “I think to lose Kentucky is nearly to the same as to lose the whole game. Kentucky gone, we cannot hold Missouri, nor, as I think, Maryland. These all against us, and the job on our hands is too large for us.” On the other hand, Southern Unionists, loyal slave-holders, and War Democrats charged that Lincoln’s approach to the slavery issue was “revolutionizing” the war.
Lincoln issued his preliminary Emancipation Proclamation on 22 September, 1862, shortly after Major General George B. McClellan’s Union Army of the Potomac turned back Confederate General Robert E. Lee’s Army of Northern Virginia at the bloody battle of Antietam/Sharpsburg. In it he gave the states in rebellion one hundred days to return to the Union or face the prospect of wholesale uncompensated emancipation.
Lincoln was fully aware of the revolutionizing impact of his Proclamation, admitting that once it took effect, “the character of the war will be changed. It will be one of subjugation and extermination.” But, as he wrote to another correspondent, “This government cannot much longer play a game in which it stakes all, and its enemies stake nothing. Those enemies must understand that they cannot experiment for ten years trying to destroy the government, and if they fail still come back into the Union unhurt.”
Lincoln took particular exception to the demand by loyal slave-holders “that the government shall not strike its open enemies, lest they be struck by accident.” This demand by border state representatives, who had recently rejected Lincoln’s last proposal for compensated emancipation, had become “the paralysis-the dead palsy-of the government in this whole struggle.”
Nonetheless, Lincoln took an immense gamble by issuing the preliminary Emancipation Proclamation. It was foremost a political gamble. Those who argue that Lincoln was only “waiting for the right time” to issue the Proclamation must confront the fact that because of his action, the Republicans paid an enormous price during the 1862 elections. By placing the most highly charged issue of the war before the voters in the midst of a struggle the outcome of which was still in question, Lincoln’s actions cost the Republican Party dearly. Votes for Republicans fell by 16 percent from 1860. The Party suffered disastrous setbacks in Pennsylvania, Indiana, Ohio, New York and New Jersey.
Such losses in the elections of 1862 led some to conclude that Lincoln would not issue the final Emancipation on New Year’s Day of 1863. But he did so for reasons that he made clear in his annual message to Congress for 1862. “Fellow citizens, we cannot escape history…The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation…. The dogmas of the quiet past are inadequate to the stormy present….In giving freedom to the slave, we assure freedom to the free…. We must disenthrall ourselves, and then we shall save our country.”
In the end, Lincoln’s prudential approach both saved the Union and ended slavery. In effect he accomplished the goal he laid out in his 1854 address at Peoria in which he denounced the Kansas-Nebraska Act and its effective repeal of the Missouri Compromise.
Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution. Let us turn slavery from its claims of “moral right,” back upon its existing legal rights, and its arguments of “necessity.” Let us return it to the position our fathers gave it; and there let it rest in peace. Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it. Let north and south – let all Americans – let all lovers of liberty everywhere – join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.
Of course, blood-much blood-was required to wash our republican robe clean and make the Union “forever worthy of the saving.” As Lincoln said in his Second Inaugural, delivered before the war had ended:
Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”
Thanks to Lincoln’s prudent approach to saving the Union, this payment in blood was not spilled in vain.