"I mean that the emancipation proclamation was uttered in the first gun
fired at Sumter and we have been the last to hear it. As it is, we show
our sympathy with slavery by emancipating slaves where we cannot reach
them and holding them in bondage where we can set them free."[70]
Seward did not say this in a censorious spirit, but what he did say was
true. The proclamation applied only to states and parts of states under
rebel control. It did not emancipate any slaves within the emancipator's
reach. Whether it freed anybody anywhere was a matter of dispute. What
its legal effect would be after the war should cease, no one could say.
Moreover, if the President had legal authority to issue the
proclamation, then he, or a successor in office, could revoke it.
The Constitution had not given to the Federal Government power to
emancipate slaves. The proclamation did not purport to rest upon any
constitutional power, but upon war powers solely. But war powers last
only while war lasts, and when it comes to an end, all sorts of people
have all sorts of opinions as to the validity of acts done under them.
Public opinion at the time was keenly alive to doubts regarding the
President's powers in this particular. Congress was flooded with
petitions calling for action to confirm and validate the proclamation,
but the way was beset with difficulties. Should the Constitution be
amended, or would an act of Congress suffice? If the Constitution should
be amended, should it abolish slavery everywhere or only in the places
designated by the President? Should loyal slave-owners be compensated,
as Lincoln desired? What were the chances of getting such an amendment
ratified by three fourths of the states? And for this purpose should the
rebel states be counted as still in the Union? If so, the requisite
number might not be obtained.
The first resolution offered in Congress for such an amendment of the
Constitution was proposed in the House on the 14th of December, 1863, by
Representative James F. Wilson of Iowa, in these words:
SECTION 1. Slavery being incompatible with a free government is
forever prohibited in the United States; and involuntary
servitude shall be permitted only as a punishment for crime.
SECTION 2. Congress shall have power to enforce the foregoing
section by appropriate legislation.
On the 13th of January, 1864, Senator Henderson, of Missouri, offered a
resolution to amend the Constitution by adding thereto the following
article:
Slavery or involuntary servitude, except as a punishment for
crime, shall not exist in the United States.
These resolutions were referred to the Judiciary Committees of the
respective houses.
On the 10th of February, Trumbull reported the Henderson Resolution from
the Committee on the Judiciary, with an amendment in the nature of a
substitute in the following terms:
ARTICLE XIII
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