Book Excerpt: Lincoln's Careful Approach to the Emancipation Proclamation

In his latest book, renowned historian Eric Foner explains how the Great Emancipator decided to avoid a legal challenge by making his bold act a military order. But that also left 800,000 blacks in chattel slavery.

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On Jan. 1, 1863, Lincoln presided at the annual White House New Year's reception. Later that afternoon, he retired to his study to sign the Emancipation Proclamation. The first time he attempted to affix his signature, he stopped and laid down his pen. His hand was shaking, not from nervousness, but because of exhaustion. "I do not want it to appear as if I hesitated," he said. After a moment of repose, he signed the Proclamation. Ever concerned with his place in history, Lincoln knew he would be remembered for this act. In 1863 and 1864, he would make himself available to artists, photographers and sculptors who portrayed him as the Emancipator. He allowed the artist Francis B. Carpenter to live in the White House for four months while painting The First Reading of the Emancipation Proclamation.

The Proclamation declared that all the slaves in the areas to which it applied -- over 3 million men, women and children -- "are and henceforth shall be free." It ordered the army and navy to "recognize and maintain" that freedom. It enjoined emancipated slaves to refrain from violence, except in "necessary self-defence," and urged them to "labor faithfully for reasonable wages." For the first time, it authorized the enrollment of black soldiers into the "armed service" of the United States. 

So many layers of myth have enveloped the Emancipation Proclamation that its actual content is often misunderstood.  Unlike the Declaration of Independence, it contains no preamble enunciating the rights of man. Only at the suggestion of Secretary of the Treasury Chase did Lincoln at the last minute add a conclusion invoking the "considerate judgment of mankind and the gracious favor of Almighty God" on this "act of justice."

Lincoln did not, as is sometimes thought, free all the slaves with a stroke of his pen. The Proclamation had no bearing on the nearly half million slaves in the four border states and West Virginia. It applied only to the Confederacy and almost exclusively to areas outside Union control. Despite objections from a majority of the Cabinet, it exempted a number of areas occupied by the Union army: seven counties in Tidewater, Va. (where Benjamin Butler had inaugurated the contraband policy, and with it wartime emancipation), 13 parishes in southern Louisiana, and the entire state of Tennessee. These places contained another 300,000 slaves, bringing to nearly 800,000 the number to whom the Proclamation did not apply, of a total of 3.9 million.

The Proclamation rested not on the rights of mankind but "upon military necessity." Lincoln claimed full authority as commander in chief to decree emancipation, and accepted full responsibility. Lincoln was convinced, as one Washington reporter wrote the day before the document was issued, that the Proclamation could only survive judicial scrutiny "as a war measure," not "one issuing from the bosom of philanthropy." To ground emancipation, he later remarked to Chase, on anything other than military necessity, including the notion that it was "politically expedient and morally right," would "give up all footing upon constitution or law."

Critics at home and abroad charged that the Proclamation actually freed no slaves at all, since it applied only to areas under Confederate control. In fact, Lincoln did not exempt occupied areas where the number of white Unionists was small or nonexistent and political reconstruction had made little or no progress -– parts of Arkansas, Florida, Mississippi, North Carolina and the Sea Islands of South Carolina. Here, emancipation was immediate. Overall, tens of thousands of slaves -- 50,000, according to one estimate -- did gain their freedom with the stroke of Lincoln's pen. To be sure, on the day it was issued, there was no way to enforce the Proclamation in most of the South; its implementation would await Union victories. 

The Emancipation Proclamation differed dramatically from Lincoln's previous policies regarding slavery and emancipation, some of which dated back to his days in the Illinois legislature and Congress. It abandoned the idea of seeking the cooperation of slaveholders in emancipation, and of distinguishing between loyal and disloyal owners. It was immediate, not gradual, contained no mention of monetary compensation for slave owners, did not depend on action by the states, and made no reference to colonization of the freed people outside the country (in part, perhaps, because gradualism, compensation and colonization had no bearing on the "military necessity" that justified the document). The Proclamation addressed slaves directly, not as the property of the country's enemies but as persons with wills of their own whose actions might help win the Civil War. Lincoln made no effort to define the future status of the emancipated slaves, but the Proclamation unavoidably placed that question on the national agenda. 

Even apart from the 800,000 persons to whom it did not apply, the Emancipation Proclamation by itself hardly guaranteed the irrevocable end of slavery; for that, Union military victory would have to follow. Slavery is a remarkably resilient institution. It had survived the dislocations of the War of Independence (including the flight of tens of thousands of slaves to British lines), only to enter on a period of unprecedented growth. Were the Confederacy to gain its independence, slavery would undoubtedly continue to exist. 

The Emancipation Proclamation altered the nature of the Civil War, the relationship of the federal government to slavery and the course of American history. It liquidated without compensation the largest concentration of property in the United States. It made a negotiated settlement impossible unless the Union were willing to retract the promise of freedom. It crystallized a new identification between the ideal of liberty and a nation-state whose powers increased enormously as the war progressed. As Frederick Douglass proclaimed, "the cause of the slaves and the cause of the country” had become one. Whatever the Proclamation's limitations, by making the army an agent of emancipation and wedding the goals of Union and abolition, it ensured that Northern victory would produce a social transformation in the South and a redefinition of the place of blacks in American life. In his message to Congress of December 1861, Lincoln had said that he did not wish to conduct the war as a "violent and remorseless revolutionary struggle." The Proclamation announced that this was precisely what it must become.

Reprinted from Fiery Trial: Abraham Lincoln and American Slavery by Eric Foner. Copyright © 2010 by Eric Foner. Used with permission of the publisher, W.W. Norton & Co., Inc.