To the Editor:

George Szamuely [“The Imperial Congress,” September 1987] states that Lincoln “. . . freed the slaves without bothering to consult anyone.”

What a twistory of history! Between April 1861 when the Civil War began and September 1862 when Lincoln announced to his cabinet his decision under commander-in-chief authority to proclaim emancipation in still-unsuppressed areas of the Confederacy, consultation between the White House and leading members of Congress, other areas of officialdom, journalists, and the public had been frequent and significant. In two major very public instances Lincoln stayed the hands of Union generals (Hunter and Fremont) who resorted to emancipation in particularly vulnerable local areas under their command. Congress had debated and enacted not one but two Confiscation Acts, in 1861 and 1862, which dealt in part with freedom for the slaves of persons whose disloyalty to the United States had been proved after prosecution.

All of which is to say that this not insignificant point of Mr. Szamuely’s article is insupportable. I refer him, not immodestly I trust, to my book, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (Knopf, 1973), especially chapters 9-12.

Moreover, the general thesis in Mr. Szamuely’s article, of congressional imperialism concerning foreign policy, especially with respect to war and emergency powers, seems to me to be very difficult to square with a great mass of evidence that leads me at least to differing conclusions. Again, I refer to an effort of my own on this matter: Quiet Past and Stormy Present?: War Powers in American History (American Historical Association, 1986).

Harold M. Hyman
Rice University
Houston, Texas

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George Szamuely writes:

Harold M. Hyman’s choice of terrain upon which to defend the constitutional prerogatives of the “imperial Congress” is somewhat surprising. As he well knows, from the moment Lincoln entered office he sought to free the slaves, but he was concerned that it be done in accordance with the Constitution. Obviously Congress lacked the constitutional authority to pass legislation outlawing slavery since it would thereby have been usurping the rights of individual states. A constitutional amendment was also out of the question since the existence of fifteen slave-owning states ensured that there was no way that the legislatures of at least three-quarters of all the states would give their approval to such a measure. The remaining possibility was executive action. The two Confiscation Acts that Mr. Hyman refers to were narrow in scope and were promulgated to facilitate the Union war effort. (They did not apply to slaves belonging to loyal owners or to those who had been disloyal before mid 1862.)

The point is that Lincoln’s Emancipation Proclamation was not undertaken in order to eradicate a great evil—which he was certainly not constitutionally empowered to do—or in order to improve the North’s military prospects (which could have been left in the hands of Congress), but in order to preserve the Union. As Lincoln had famously put it just a few weeks earlier: “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. . . . What I do about slavery . . . I do because I believe it helps to save the Union.” In other words, it is not Congress but the President, through his powers as commander-in-chief of the army, who acts as the constitutional representative of the nation as a whole.

As for the question of consultation, Mr. Hyman surely knows that it was not merely Congress but the press and the public at large who were also caught by surprise by Lincoln’s dramatic announcement freeing the slaves.

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