Hi,
I would like to fact-check the following comment I came across recently. Is the commenter correct on all points? I look forward to your feedback.
davidmich
Comment following a New York Times Disunion article " Could the South Have Won the War" by Terry Jones
“Today, we toss around the term Emancipation Proclamation as if it included all slaves in every part of the country. However, it was selective liberation, not universal, and did not grant ex-slaves citizenship. The proclamation freed slaves in the states still in rebellion. It did not apply to states not actively rebellious. So about a quarter of enslaved people were NOT freed by the proclamation. A prominent clause in the proclamation ordered that freed slaves could be enrolled in all Union military branches, indicating there was also a utilitarian purpose of building a more formidable military force. Later in the war, universal freedom became THE explicit war goal, and was accomplished by the Union’s military-industrial power in winning the war.”
It really did leave out the border states that allowed slavery but who hadn’t seceded. Since it was delivered in late September and the effective date was 1 January it also allowed for a slave holding state in rebellion to rejoin the Union before that date in which case their slaves would not have been freed by the Proclamation.
It really was more an evolutionary step towards the end of slavery than an outright abolition. Lincoln relied upon the issue of the rebellion as a justification for having the power to do it. The issue for States within the Union would have overstepped the justification used to enable it.
Lincoln freed the slaves in specific States, and parts of States, which were designated in the proclamation. Lincoln did not free any slaves in the four remaining Union states.
*That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, 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, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
“That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested 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, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said 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.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known, that such persons 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.
And 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.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the City of Washington, this first day ofJanuary, in the year of our Lord one thousand eighthundred and sixty three, and of the Independence of the United States of America the eighty-seventh.
By the President: ABRAHAM LINCOLN
WILLIAM H. SEWARD, Secretary of State*.
The limited scope of the Proclamation was based on the constitutional authority which Lincoln was relying on, namely his powers as Commander-in-Chief, putting down a rebellion against the federal authority. That’s why it only applied to states and parts of states in active rebellion against the United States. It was a war measure, to aid the Union forces in suppressing the rebellion.
And that’s also why it did not apply to the border states, nor to the carefully delimited portions of Louisiana and Virginia. Since the border states were not in rebellion, and the listed parishes of Louisiana. Since those parts of the United States were not in rebellion, the President’s war powers did not apply there.
Remember, Dred Scott had confirmed that slaves were property. Nothing in Article II gives the President the power to unilaterally take away someone’s property, and trying to do so would be doubly barred by the Fifth Amendment’s protection on property rights.
As well, I don’t think the final line of the quotation is accurate: “Later in the war, universal freedom became THE explicit war goal, and was accomplished by the Union’s military-industrial power in winning the war.” Universal emancipation was not caused by the Union winning the war; it was caused by Congress passing the 13th Amendment and the states ratifying it. That’s what freed the slaves in the area of the United States that were not in rebellion at the time of the Proclamation, not the military victory of the Union armies.
I can see some wiggle room in the commenters position that has it still be accurate. Most of the slaveholding states weren’t under Union control. Without raw naked force producing victory the proclamation and 13th Amendments would have affected only a minority of slaves in North America.
The reason I disagree with it is that if the Union had won the war without the Proclamation being issued, the slaves in the former rebellious states would still be slaves, and their owners’ property rights in them still protected by the US Constitution. The Emancipation Proclamation changed the law for those states in rebellion, which was then enforced by the military conquests.
Military conquest alone, without the Proclamation, would not have freed the slaves.
What really freed the slaves was the Thirteenth Amendment. I see the Emancipation Proclamation as a sort of baby step: it formalized the Union Army’s “contraband” policy towards slaves escaped from rebel masters, and gave some satisfaction to the abolitionist factions in the north. It was consistent with what Lincoln had repeatedly stated, that if the South did not voluntarily cease rebellion it would not be allowed to revert to the prewar status quo, but would suffer irreversible consequences.
Lincoln was well aware that slavery was the South’s cause, but he both accepted that it was legal within the framework then in existence, and knew that an abolitionist crusade would alienate too much support.
In addition to the carefully delineated areas of Louisiana and Virginia, it should be noted that the Emancipation Proclamation did not apply in the entire state of Tennessee.
By the time of the EP, all of Tennessee was under either military control of Union forces or was under control of Union leaning locals.
Six of the eight wholly or partially excluded states abolished slavery within their borders by state law between the EP and the 13th Amendment. The exceptions were Kentucky and Delaware. Kentucky and Delaware were the only two states where slavery was still in force at the ratification of the 13th Amendment in December 1865.
Some commentary may be in order on the reasons for the eight state exclusions.
In Missouri, Kentucky, Maryland, and Delaware, the reason for exclusion is obvious–these states had remained in the Union, were not in rebellion, were not under army occupation, and had functioning state governments. (Albeit an irregular one in Missouri, being formed from a secession convention which declined to secede.) Lincoln had no constitutional power to touch slavery in these states.
The situation in Virginia was constitutionally delicate. Virginia had seceded, but a rump representing mostly western Virginia had repudiated secession and remained in session governing the parts of the state controlled by the Union army. Both Congress and Lincoln recognized the rump as the legal government of Virginia; Congress seated Senators elected by the rump legislature and Lincoln worked through the rump governor to raise troops.
Then western Virginia held a constitutional convention and prepared to secede from Virginia. The rump legislature, under the US Constitution, would need to consent to this act. Congress told western Virginia that they would not admit another slave state, so the WV con con enacted a gradual emancipation plan which Congress finally approved in December 1862.
Lincoln could not undercut either government–neither the Virginia rump nor the WV con con–with the Emancipation Proclamation. Each was important (in different ways) to the Union war effort, and he had to recognize each as sovereign within its own domain. He had to exempt the counties controlled by each from emancipation; in the case of Virginia, these were “the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth”; in the case of soon-to-be-West-Virginia, they were “the forty-eight counties designated as West Virginia”.
West Virginia completed the state admission process in June 1863, after which the Virginia rump remained in power governing only the Union-held counties in eastern Virginia. Both the Virginia rump and the state of West Virginia fully abolished slavery within their borders by early 1865.
The exclusions of part of Louisiana and all of Tennessee were more dubious. Both states had seceded and were in rebellion by any reasonable definition; the Union-held areas of each state were under army occupation with no civilian administration of any kind. (Andrew Johnson was military governor of Tennessee, appointed by Lincoln, not elected.) Confederate forces still held eastern Tennessee and most of Louisiana.
Lincoln, however, clung to hope that civilian administrations would soon be formed in each state, and thought it would be better if these administrations abolished slavery of their own accord.
This was questionable reasoning. Louisiana, as in turned out, didn’t form a civilian administration until 1864, and Tennessee until 1865. The question of emancipation remained as a cause of friction in each case; Lincoln could have resolved it by simply not excluding these states. If Lincoln can be faulted, it is for the exclusion from the Emancipation Proclamation of Louisiana and Tennessee.
If we want to get pedantic, what really freed the slaves was occupying Union forces, not legal moves.
Which is why the big emancipation holiday is on June 19th (Juneteenth), and not January 1 (Emancipation Proclamation) or December 18th (Seward’s certification of the ratification of the 13th amendment).
Juneteenth is the commemoration of the arrival of Union occupying forces in Texas on June 19, 1865 and the subsequent emancipation of Texas slaves (the last remaining ones).
[QUOTE=Freddy the Pig]
Lincoln, however, clung to hope that civilian administrations would soon be formed in each state, and thought it would be better if these administrations abolished slavery of their own accord.
This was questionable reasoning. Louisiana, as in turned out, didn’t form a civilian administration until 1864, and Tennessee until 1865. The question of emancipation remained as a cause of friction in each case; Lincoln could have resolved it by simply not excluding these states. If Lincoln can be faulted, it is for the exclusion from the Emancipation Proclamation of Louisiana and Tennessee.
[/QUOTE]
In addition to those political considerations, the exclusion can be explained as Lincoln being the careful lawyer: he excluded the areas where there could have been issues raised about the extent of his authority as C-in-C, if there was a factual issue about those areas not being in rebellion. In case of a court challenge to the Proclamation, he would want to be able to say that it was aimed only at the areas that were clearly still in rebellion, and therefore emancipation in those areas was within his C-in-C powers, as a war measure to end the rebellion in those areas.
If the Union troops had arrived and there had not been the Proclamation or the 13th Amendment, the slaves in those areas would not have been freed simply because the war was over. It was the legal and constitutional changes in the Proclamation and the 13th Amendment which freed them; the troops simply implemented the law.
In practical terms, of course, no one was freed by the Proclamation. And because the Proclamation was simply an executive order relying upon wartime authority, it’s an interesting question as to whether it would carry any legal weight with regard to freed slaves from the rebel states after a Union victory, had the Thirteenth Amendment not been enacted. The parallel would be Lee’s son, who successfully sued for the return of the Lee family home in Arlington, which the Union Army had seized and turned into a fort and cemetery. My guess is that former slaveowners would have been able to sue the federal government for compensation.
I’m not sure how much weight to give to the suggestion that Lincoln was concerned about the limits of constitutional authority. He didn’t have the authority to abolish habeas corpus, after all, but he did so anyway when he deemed it necessary.
There is some dispute among historians nowadays, but I think generally the Proclamation has been regarded as a public relations gesture, to promote slave unrest in the South and to incline public opinion in Britain against recognition of the Confederacy or any sort of call for international mediation between the North and the South.
This dissent in East Tennessee resulted in Confederate forces being sent to seize the area. Generals Zollicofer, Smith, and Jones variously led troops to occupy the area. They were met with guerrilla warfare tactics and the local population took to spying for the North. It’s not as if the Confederate forces were welcomed there.
To the extent that East tennessee already supported the Union cause, Lincoln could gain little by extending the EP to East Tennessee. There were few slaves in the area and the Union military already held the major waterways. The rest of the state was already under Union military control by the January 1, 1863 date of enactment of the EP.