The victory of the Emancipation Proclamation
This post is part 3 of my series on Lincoln, racism, and slavery.
When it became clear that there was no way the Delaware Plan was going to be accepted, in any shape or form, Lincoln might have given up. He might have just hoped that the war would end slavery by itself, that if the Confederacy was defeated, slavery would soon be abolished in the South. He could have been like the Founders and looked ahead to distant, better times. But instead he moved ahead with what he felt was his only remaining option to end slavery: using the war powers given to the president by the Constitution.
He would write an emancipation proclamation, freeing enslaved people in the Confederacy. It would be in the same vein as the Confiscation Acts that allowed Union soldiers to take food, weapons, horses, or any other thing from the Confederate army or civilian public that was helping the Confederate war effort. Under the Confiscation Act, enslaved people had been considered property and labor that helped the Confederate war effort, and had therefore been “seized” by Union generals.
But unlike the Confiscation Act, the EP would be eternally binding. Lincoln knew that the Confiscation Act would not be binding if the war ended and slavery had not been repealed. The Confiscation Act could only free enslaved people during a war, when they were part of a war effort. If the war ends and slavery still exists, those people are returned to slavery.
So his Emancipation Proclamation, unlike the Confiscation Act, would free enslaved people in the Confederacy, not until the war was over, but forever. We tend to miss that word—and henceforward shall be free. From this time forward.
The EP is short and legalistic and has been criticized for lacking moral rhetorical flourishes, but this is deliberate. It is a canny legal document designed to outmaneuver Taney and the courts. In its short lines, the EP gives its legal rationale for freeing certain enslaved people, a schedule for doing so, a definition of who is freed, and their new legal condition. In its short lines, Lincoln overrode centuries of power located in state slave codes, property ownership laws, and civil court rulings and procedures. Lincoln offers no monetary compensation. And, at last, he drops all mention of shipping freed black Americans to Africa. [Ibid. 120] There would be no more colonization, compensation, or caviling. Slavery would no longer be a part of the southern United States. If the Confederate states returned to the Union, it would be without slaves.
So we see the reason Lincoln did not extend the terms of the EP to the Border states, or the western territories. (This is what he is lacerated for, for only freeing slaves in Confederate states at war.) First, the Border states were not at war with the U.S. but a part of it; Lincoln could not use his war powers on them when they were not in a state of war with the U.S. The same applies to the west, which was not at war with the U.S.
And Lincoln did not apply the EP to the North, to the Union, to the United States as it stood in 1862, because slavery had already been outlawed in all the states then remaining in the Union. We’ll come back to this later, though; Lincoln would.
In the months before Lincoln published his proclamation, Horace Greeley, of the New York Tribune, wrote an editorial letter on August 20, 1862 blasting the president for not abolishing slavery already. No one outside Lincoln’s cabinet knew he had the EP written and waiting. Lincoln’s response is famous, or infamous, to us now. It is the letter in which he said that if he could save the Union by freeing all the slaves, he would, and it he could save it by freeing none, he would, and if he could do it by freeing some and leaving others, he would do that.
We take that as the basest kind of position. This is the quote most people use to show how racist and pro-slavery Lincoln was. They are wrong. Let’s look at the whole letter.
Lincoln starts by saying that his main aim in the war is to preserve the Union. He sees a few options when it comes to saving the Union. He might be able to do it by freeing all the slaves. If that was the best option, he would take it. He might, though, be able to save the Union without freeing any slaves. If so, he would take that option. Or, he might be able to save the Union by freeing some slaves.
You, by now, should see that he is hinting very broadly at his Proclamation, which did just that: it freed some enslaved people and left others enslaved. (For the reasons we have already described—under war powers, he could only free slaves in territory at war with the U.S. without Taney and the courts striking the measure down.)
We still shudder at Lincoln calmly talking about not freeing anyone. But people at the time saw what was really shocking: Lincoln was saying that ending slavery was on the table. For the first time in the history of the United States, a president was saying he would outlaw slavery. This had never been on the table before.
No longer could anyone in the U.S. or the Confederacy believe that slavery was protected and would not be abolished. Lincoln was telling the nation that he was thinking about abolishing it—that he would abolish it, to win the war. To Americans at the time, it didn’t matter that it might be partial abolition. Any move toward abolition coming from Washington was unheard of, and again, certainly no president had ever moved to abolish slavery at all, anywhere, ever.
Lincoln underlined this new attitude by adding, “I intend no modification of my oft-expressed personal wish that all men every where could be free.” This was a pretty clear message—or warning—to the nation and the Confederacy that slavery was not going to make it out of the war intact. Lincoln was just waiting for the moment to make a move that would be effective and lawful. As Lincoln said himself after his letter appeared, his intention was to make clear that “he would proclaim freedom to the slave just as soon as he felt assured he could do it effectively…” [my italics; Ibid., 135-36]
Lincoln put the Proclamation out to the nation right before the November 1862 Congressional elections. This was dangerous. People might have voted all Republicans out of Congress because of the Republican president’s Proclamation. The Congress might have come under Democratic control, and those Democrats would have fought the Proclamation. But it had always been Lincoln’s wish to give the people a chance to vote on any emancipation order he issued. And 31 Republicans did lose their seats in Congress, as voting for Republicans fell 16 percent from 1860 [Ibid. 167] But the Republicans maintained their majorities in the House and Senate, and Lincoln pressed them to support the Proclamation. He knew that the Proclamation would not only free enslaved people, but galvanize the North. Once the Proclamation took effect… “the character of the war will be changed. It will be one of subjugation and extermination [of slavery],” Lincoln told T. J. Barnett.
He was right. After January 1, 1863, when the Emancipation Proclamation took effect, emancipation was “wedged into the war’s equation as a sine qua non of victory.” And Lincoln added that he intended to shape a follow-up policy that would be “more radical than ever.” [Ibid. 156, 228]
What was this radical move? To pass an Amendment to the Constitution outlawing slavery. Lincoln knew his Emancipation Proclamation would hold up during the war, and that those freed by it would remain free after the war. But what about enslaved people in the Border states, who were not freed by it? What about slavery in the west, or even in the North, unlikely as that may have seemed? Slavery was still technically possible in those areas. And Lincoln couldn’t be president forever. Once he was out of office, a new president could re-affirm slavery.
Lincoln could not accept this kind of risk. He began to push the new Congress to pass the Thirteenth Amendment, outlawing slavery in the United States. It seemed like a good sign when Lincoln’s legal nemesis Chief Justice Roger Taney died in October 1864. The vote on the Thirteenth Amendment came on January 31, 1865, and, as we know, it passed.
Next time: the final Lincoln post
