In part 2 of my series on Lincoln and slavery, we address the Emancipation Proclamation.

 

Ever since I was a kid, I have read that the Emancipation Proclamation was a sham. It only freed a fraction of enslaved people, and only freed them where the federal government had no power to enforce it,  and therefore had no real power or purpose. It was an empty gesture by a president who was pro-slavery. Let’s set that straight right now. 

 

The main problem people have with the EP today is that it only freed enslaved people in areas that were rebelling (in the Confederacy), and not in areas of the Confederacy occupied by Union troops, and not in the border states of Missouri, Kentucky, Delaware, and Maryland that were slaveholding but not part of the Confederacy. As one of Lincoln’s witty critics at the London Times put it in 1863 put it, “Where he has no power Mr. Lincoln will set the negroes free; where he retains power he will consider them as slaves.” Abolitionists then and most people today wish Lincoln had freed all slaves in the Proclamation, and don’t understand why he wrote what he did instead.

 

People have also been discouraged by Lincoln’s moves to overturn and rescind orders some Union generals sent out once they occupied a Confederate area that freed enslaved people in that area. Why would he do that?

 

Because he knew that if slavery was going to be abolished in the United States, it was going to have to be made illegal.

 

That sounds a little redundant. But it’s the heart and soul of Lincoln’s actions and planning and his eventual Proclamation. Slavery was still legal in the United States during the Civil War (until 1863). The northern states had passed emancipation laws, but there was no federal law outlawing slavery (it seemed a moot point with slavery already outlawed on the state level). Lincoln realized that if army officers or even he himself, the president, sent out orders freeing enslaved people during the war, once the war was over, those newly freed people would have absolutely no legal protection from being re-enslaved. Because slavery would still be legal in the United States, even if the Confederacy was beaten. And until 1863, many people in the U.S. and the Confederacy figured that if the Union won the war, and the Confederate states returned to the Union, they would be allowed to keep slavery (but not be allowed to expand it into the west). Some people thought this would be temporary, others thought it would be permanent.

 

It’s hard for us to picture this now, because we know slavery was abolished by and during the war. But that’s only because of Lincoln’s Proclamation. Before he published a draft of the EP in August 1862, slavery was still on the table, and very much alive as an option.

 

So Lincoln rescinded those orders his generals sent out, because he knew they would have no legal power if the war ended and slavery was not abolished. If a general freed enslaved people, and then those people were successfully forced back into slavery, it would damage any future attempt to abolish slavery in general.

 

Lincoln also knew that whatever he did to end slavery would come in for powerful court challenges, as people fought it, and that Supreme Court Chief Justice Taney would be more than eager to strike down a Lincoln law against slavery. Ever since Lincoln had suspended habeas corpus (which allows people to know what they are being arrested for, and guarantees them a speedy court trial by jury) during the war, Taney had hated Lincoln. Lincoln knew that Taney would be ready to attack any attempt to end slavery that Lincoln tried to push.

 

Therefore, Lincoln knew that he could not go with “the satisfaction of a ‘spirit’ overriding the law… not the exercise of [his] will rather than reason,” as Guelzo puts it. [Guelzo 5] Whatever Lincoln did to end slavery had to be fully legal, stand up in court, and have the buy-in of the American people, whom he would have liked to have vote on any such measure.

 

His first plan was the Delaware Plan. Delaware was one of the four neutral Border states. Lincoln was fearful that a Union general would go into one of these Border states and start freeing enslaved people, enraging slaveholders and driving all of the Border states into the Confederacy. (If Maryland left the Union, Washington, DC itself would be located inside the Confederacy.)  Before that could happen, Lincoln tried to get the neutral, slaveholding Border states to give up slavery in return for a cash compensation. He called representatives from those states to Washington to make them the offer, infuriating abolitionists who hated the idea of slaveholders getting a reward for ending slavery.

 

If the Border states would give up slavery peacefully, it would destroy the Confederacy’s chances of getting them to leave the Union, and it would make it much easier for Lincoln to abolish slavery legally in the U.S., because then no state actually in the U.S. would be slaveholding. Then, if the Confederacy lost the war and had to come back into the Union, it would have to give up slavery because slavery would be illegal in the U.S.

 

But the Border states would not go for the Delaware Plan. Delaware slaveholders were not ready to give up slaveholding, and state papers cast doubt and mockery on the government’s promise to pay $900,000 to slaveholders for giving up their enslaved people. [Ibid. 92] The other reason for the rejection of the Delaware Plan was that many Americans realized that for the first time, an American president was making moves to eradicate slavery. “The great, transcendent fact is, that for the first time… we have the recommendation from the presidential chair of the abolition of slavery…” said the Daily National Republican on March 10, 1862. The debate was no longer about how to contain slavery or where it would be allowed, but about getting rid of it, forever.

 

Lincoln was, at this point, still adamant about shipping the black Americans who were freed by the Delaware Plan “back” to Africa. This was not about racism. It was a cold, hard assessment of the facts, of what enslaving one group of people because of their race does to both the enslaved and enslaving races. “You and we are different races,” said Lincoln, “[and] your race are suffering, in my judgment, the greatest wrong inflicted on any people. [But] even when you cease to be slaves, you are yet far removed from being placed on an equality with the white race. [This is] a fact with which we have to deal.” In this, Lincoln was prescient, for we are still working, 144 years later, on getting all white Americans to place black Americans “on an equality.”

 

Lincoln figured black Americans would be happy to leave a place and a people that had enslaved them so bitterly. “I do not know how much attachment you may have toward our race,” he said. “It does not strike me that you have the greatest reason to love [us].” [Ibid. 142] Lincoln said these things to a committee of black American leaders he called to the White House to discuss colonization of formerly enslaved people. (The first time any president had invited black leaders to a White House conference.) These men bravely stood up to Lincoln and told him they did not want to leave their own country, but work in it and have the benefits of it. Lincoln, doubtful, clung to colonization, but only voluntary colonization. He never planned to have black Americans forcibly shipped to Africa.

 

We are irritated and disappointed to hear Lincoln talk about colonization, but the one silver lining in it is that it shows how serious he was about ending slavery. He felt he had to have a plan in place to remove all the people he was determined to free from slavery.  That plan was the EP.

 

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. By abolishing slavery in the states in rebellion, Lincoln was saying that once the war was won by the Union, and the southern states in rebellion returned to the Union, they would have to return without slavery. Most of the country would be free because northern states had individual anti-slavery laws and the southern states were banned from holding slaves by the EP.

The only problem would then be the border states and the west. The border states were slave states, and the west was technically open to slavery. To fix this, and end slavery in the United States completely and permanently, Lincoln would present an amendment to the Constitution to abolish slavery on the national rather than individual state level. This would be the Thirteenth Amendment, passed in December 1865.

For now, in 1863, the goal was to ensure that the Confederate states returned to the Union as free states after a Union victory in the war. That’s what the EP did. Read on for the details by clicking below.

Next post: Confiscation v. Emancipation