The Emancipation Proclamation—Sesquicentennial Reflections

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Category: Civil Rights, Constitutional Law, Legacies of Lincoln, Legal History, President & Executive Branch, Public
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January 1, 2013, marks the 150th anniversary of President Lincoln’s final Emancipation Proclamation, which declared the freedom of slaves in rebellious states. The decree was controversial in Lincoln’s time and seems often to be misunderstood in ours. The objective of this blog post, accordingly, is to survey the context, chronology, and consequences of the Proclamation as we observe the sesquicentennial of its issuance.

The Context—Summer 1861 through Fall 1862

Through the latter half of 1861 and well into 1862, it was not at all self-evident that the Union would win the Civil War. Particularly in the east, the most symbolic military theater, the Confederate Army secured numerous victories or military stalemates, the latter of which were essentially as advantageous for it as the former. Despite having superior financial and industrial resources, the Union Army’s deficit of aggressive battlefield leadership, lack of well-trained or seasoned troops, and comparative unfamiliarity with the terrain repeatedly hampered Union military actions.

Lincoln was painfully cognizant of these problems, especially the operational timidity of his top brass, purportedly remarking at one point that if General George B. McClellan was not going to use the Army of the Potomac, Lincoln “would like to borrow it, provided he could see how it could be made to do something.” President Lincoln also knew that popular support for the war, as casualties mounted and the prospect of national conscription loomed, could not long endure without visible Union success in the east. At the same time, the President was aware that the Confederacy was seeking the recognition and material support of European nations such as England and France, and that every Confederate victory appeared to make this objective more attainable.

It was this array of circumstances, among others, that prompted President Lincoln to take the manifestly drastic step of issuing the Emancipation Proclamation. Only against this political and military backdrop, in fact, can the Proclamation and its timing be fully comprehended. In order to explain why this is so, it is necessary to walk through the events leading up to the Proclamation and then to examine the substance and scope of the Proclamation itself.

The Chronology Preceding the Final Proclamation

Lincoln was not an abolitionist. He considered slavery a moral abomination and a national curse, and he opposed its territorial expansion. However, whether for political or other reasons, he did not publicly advocate its elimination. As he reaffirmed in his first inaugural address of March 4, 1861, by which time the seven states comprising the lower South had already seceded, Lincoln had “no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists,” he “believe[d] [he had] no lawful right to do so, and [he had] no inclination to do so.”

Even in the fall of 1862, when the Emancipation Proclamation was being finalized, the President famously explained in an open letter to abolitionist newspaper editor Horace Greeley: “My paramount object in this struggle is to save the Union, and is not either to save or to 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.”

To be sure, the Emancipation Proclamation itself was abolitionist only in a very limited sense, and it certainly did not purport to abolish slavery throughout the land. As David Papke recently commented in a blog post on the movie Lincoln, the Proclamation can be best understood “chiefly as a war measure . . . .” Thus it is not surprising that among Lincoln’s cabinet members, one of the most receptive to the Proclamation was Secretary of War Edwin M. Stanton, who immediately perceived its logistical potential: the Confederate war effort would be deprived of slave labor while the Union army might be supplied with additional troops. (Stanton was also himself anti-slavery and thus no doubt favored it on moral grounds as well.)

More generally, the Proclamation was preceded by numerous congressional enactments, proposals by members of Congress, and unilateral actions by Union officers that explicitly embraced the strategic military value of interfering with slavery in the Confederacy. On August 6, 1861, for example, Congress enacted its first Confiscation Act, which authorized Union troops to seize and liberate slaves who had been used in support of the Confederate war effort. Later that same month, the somewhat capricious John C. Frémont, commanding the Army’s Department of the West, issued an order emancipating the slaves in the state of Missouri. (Frémont was building on the precedent of Benjamin Butler, who seized fugitive slaves within his lines as “contrabands of war” while commanding Fort Monroe in Virginia, though Butler’s policy was effectively ratified by the first Confiscation Act.) Importantly, Lincoln revoked Frémont’s order (as well as his command), concerned that Frémont’s declaration could prompt Missouri and other slaveholding border states to join the Confederacy.

In May 1862, Major General David Hunter—who took over Frémont’s command but was then given control of the Department of the South—issued his General Order No. 11, which simultaneously declared martial law and emancipated the slaves in the states of Georgia, Florida, and South Carolina. President Lincoln swiftly revoked Hunter’s order as well, once again concerned about the effect of such declarations on the border states, especially Maryland, which encompassed the District of Columbia.

Two months later, Lincoln himself then (for a third time) urged the congressmen of these border states to back a policy of incremental and compensated emancipation, explaining that emancipation might otherwise be immediate and without recompense. As before, however, they rejected his plan. Over roughly the next week, two key events then transpired in rapid succession. On July 17, Congress passed its second Confiscation Act, essentially freeing the slaves belonging to all persons who aided or supported the Confederacy. And on July 22, President Lincoln informed his cabinet of his intent to issue an emancipation proclamation (an event captured in the painting at the outset of this post—Francis Bicknell Carpenter’s First Reading of the Emancipation Proclamation by President Lincoln (1864)).

The Cabinet was markedly divided over the President’s proposal—some members were quite taken aback—though Lincoln made known his resoluteness on the matter. Lincoln further indicated, however, that he would not publicly issue the proclamation until after there had been a meaningful Union victory, presumably one in the eastern theater. (The delayed issuance, pending military success, was particularly urged by Secretary of State William Seward, who feared that the Proclamation might otherwise seem like a desperate measure by a militarily failing North.)

On September 22, 1862, following the ostensible Union victory at the Battle of Antietam (or Sharpsburg), Lincoln issued his so-called preliminary Emancipation Proclamation, which warned Confederate states that if they did not return to the Union by January 1, 1863—100 days hence—then “all persons held as slaves within any [such] State[s] . . . shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons . . . .” Predictably, perhaps, no rebellious state returned to the Union during the subsequent 100 days.

The Final Proclamation

In accordance with the terms of the preliminary Proclamation, President Lincoln on January 1, 1863, issued his final Emancipation Proclamation, which was effective upon its issuance. Similar to the preliminary Proclamation, it ordered and declared “that all persons held as slaves within . . . designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.”

Lincoln expressly issued the Proclamation pursuant to his “power . . . as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion . . . .” Toward the end of the Proclamation, Lincoln further added that “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.”

The “designated States” to which the Proclamation applied were ten in number—Arkansas, Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia—with certain exceptions that will be noted shortly. As structured, the Proclamation emancipated slaves only in areas formally allied with the Confederacy and not under Union control. Far from putting an end to slavery, in other words, it decreed the freedom of slaves where the Union had the least practical capability of effecting such emancipation. As summarized by a critical editorial in the New York Herald, “[w]hile the Proclamation leaves slavery untouched where [Lincoln’s] decree can be enforced, he emancipates slaves where his decree cannot be enforced.”

This, of course, is the central paradox of the Emancipation Proclamation and is probably the feature most misapprehended by those who today conceive of the decree as a foundational abolitionist document. In Lincoln’s mind, however, the logic of the Proclamation’s scope was straightforward: the Constitution basically protected slavery (whether as an institution or through property rights), and thus he lacked the authority to prohibit it under ordinary circumstances, but the condition of rebellion in the ten designated states allowed the emancipation of slaves as a “as a fit and necessary war measure for suppressing said rebellion . . . .”

Lincoln also believed that emancipation would not sit well with many in the North unless it were framed as a militarily necessary enterprise, and even framed as such would probably still be too radical for some. As noted in relation to the revocation of the orders by Generals Frémont and Hunter, Lincoln was especially concerned about the effect of emancipation policies on the status of the border states of Missouri, Kentucky, Maryland, and Delaware, some of which had sizable slave populations. This concern would further explain, in addition to Lincoln’s constitutional understanding, why the Emancipation Proclamation left slavery in these states undisturbed.

Due to its inapplicability to areas plausibly under Union control, even within Confederate states the Proclamation’s reach had some significant limitations. By its express terms, for example, it did not affect slavery in fifty-five counties in the Commonwealth of Virginia, essentially those in and around the Virginia Peninsula (a major region of Union military activity) as well as those of the soon-to-be-state of West Virginia, the statehood documents of which also did not provide for universal and immediate emancipation. Nor did the Proclamation affect slavery in thirteen Louisiana parishes, including the city of New Orleans, which were under Union control as of the date of the Proclamation.

Nor, finally, did it affect slavery in Tennessee, which was simply omitted from the listing of states to which the Proclamation applied. Though a member state of the Confederacy, Tennessee’s western region in 1862 came increasingly under Union control, while its eastern region was heavily populated by pro-Unionists. In addition, Andrew Johnson, at that time the Lincoln-appointed military governor of Tennessee (and in 1864 Lincoln’s running mate), had specifically asked Lincoln to exempt Tennessee from the Proclamation. (Many thanks to my colleague Gordon Hylton for explaining to me the situation in Tennessee.)

Other important features of the final Emancipation Proclamation are the ways in which it differed from the preliminary version of September 1862. Two such differences will be noted here. The first concerned the fate of emancipated former slaves. Lincoln had for many years favored the resettlement of emancipated slaves at an offshore colony (as had occurred at Liberia under the auspices of the American Colonization Society), and his preliminary Proclamation embraced “the effort to colonize persons of African descent, with their consent, upon this continent, or elsewhere . . . .”

Though Lincoln himself did not abandon such an effort until at least 1864 (after a Caribbean colonization experiment failed), the colonization option was not included in his final version of the Emancipation Proclamation. Lincoln did implore the newly-freed former slaves “to abstain from all violence, unless in necessary self-defence” and, “in all cases when allowed, . . . [to] labor faithfully for reasonable wages,” thereby indirectly incorporating concerns that often motivated advocacy of colonization. But from the final Emancipation Proclamation forward, colonization no longer appeared to be a part of Lincoln’s public stance regarding the destiny of former slaves (though a recent book by Phillip Magness and Sebastian Page, titled Colonization After Emancipation: Lincoln and the Movement for Black Resettlement (2011), and summarized here by Page, indicates that he did not altogether give up on the option).

A second difference between the preliminary and final versions concerned Union military service by emancipated former slaves. In the preliminary Proclamation, no reference is made to former slaves possibly serving in the Union army, even though Congress in July had provided for such service through the Militia Act of 1862. In the final Emancipation Proclamation, by contrast, Lincoln declared that emancipated former slaves “of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.”

This provision is notable in its own right, but it is especially so in light of a proclamation issued one week prior by Confederate President Jefferson Davis, declaring that “all negro slaves captured in arms” would not be treated as prisoners of war but instead would “be at once delivered over to the executive authorities of the respective States to which they belong to be dealt with according to the laws of said States.” This presumably meant an eventual sentence of death, if indeed the soldiers made it off the battlefield. (The same fate applied to “all commissioned officers of the United States when found serving in company with armed slaves in insurrection against the authorities of the different States of this Confederacy.”)

The Impact and Legacy of the Emancipation Proclamation

In the short term, the Emancipation Proclamation did not automatically free any slaves, but it did remove limitations on Union forces when encountering slaves in the designated areas and, correspondingly, it encouraged slaves (if aware of the Proclamation) to “self-emancipate” by attempting to reach Union lines.

Also in the short term, the Proclamation almost certainly undermined the Confederacy’s effort to obtain recognition by England or France. As it turns out, the likelihood of obtaining such recognition was overestimated at the outset (e.g., the Confederacy misjudged British dependence on its cotton), and Union military successes in the latter half of 1863 such as Gettysburg, Vicksburg, and Chattanooga—let alone those of 1864—would probably have been sufficient by themselves to deter foreign recognition and support.

For the rest of the Civil War, moreover, the Proclamation effectively though not immediately transformed the Union’s conception of the conflict from having one principal objective (restoration of the Union) to having two (restoration and emancipation). The timing of Lincoln’s preliminary and final Proclamations was largely a prudential calculation, based on his assessment that by fall 1862 there were enough people in the North who could accept emancipation, if not as an independent objective, at least as a necessary means of restoring the Union. Over time, and certainly over subsequent decades, the popular understanding was and has been that emancipation was more than a means to an end and, instead, was an end in itself.

Lastly, emancipation set the stage for the proposal and ratification of the 13th Amendment. Having effectively decreed an end to slavery in the rebellious states, and even though that measure was justified by military necessity, the United States could not easily allow the institution of slavery to persist elsewhere within its borders once the Confederacy was defeated. On December 6, 1865, the requisite number of states ratified the 13th Amendment, and on December 18 it was officially declared to be part of the Constitution, thus forever prohibiting slavery anywhere within the United States.

Further Reading

Burrus M. Carnahan, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War (2007).

Eric Foner, The Fiery Trial: Abraham Lincoln and American Slavery (2010).

Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America (2004).

Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union (2012).

Richard Slotkin, The Long Road to Antietam: How the Civil War Became a Revolution (2012).

 

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