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Today is the 155th anniversary of the Emancipation Proclamation. The proclamation made by Abraham Lincoln when the outcome of the rebellion of the Southern slave states against the Union was still up in the air was a watershed for civil rights in the United States. Though it was a military order that only affected slaves in the rebellious states, it also set the stage for the 13th, 14th, and 15th Amendments and other legal rulings that affected not only African Americans and former slaves, but also Native Americans, Women, other racial minorities and LGBTQ people. It is something that in our era when so many civil rights are under threat that we must remember and continue to fight for in the coming years. Freedom is never free.
This article is a part of my hopefully soon to be published book “Mine Eyes Have Seen the Glory!” Race, Religion, Ideology, and Politics in the civil War Era.
From the beginning of the war many Northerners, especially abolitionists and radical Republicans believed that “as the “cornerstone” of the confederacy (the oft-cited description by the South’s vice-president, Alexander H. Stephens) slavery must become a military target.” When some Union generals made their own attempts at issuing emancipation orders, Lincoln countermanded them for exceeding their authority. Lincoln resisted the early calls of the abolitionists to make that a primary war goal for very practical reasons, he had to first ensure that the Border Slave States did not secede, something that would have certainly ensured that the Union would not survived. As a result in the first year of the war, Lincoln “maneuvered to hold Border South neutrals in the Union and to lure Union supporters from the Confederacy’s Middle South white belts. He succeeded on both scores. His double success with southern whites gave the Union greater manpower, a stronger economy, and a larger domain. These slave state resources boosted free labor states’ capacity to should the Union’s heavier Civil War burden.”  His success in doing this was instrumental in enabling him to turn to emancipation in 1862.
Finally, some twenty months after Fort Sumter fell and after nearly two years of unrelenting slaughter culminating in the bloody battle of Antietam, Abraham Lincoln published the Emancipation Proclamation. Emancipation was a tricky legal issue for Lincoln as “an executive order of emancipation would be beyond the powers of the president, but not, Lincoln concluded, if such an order were issued as furtherance of the executive’s war powers.”  Lincoln had desired to issue the order during the summer and sounded out elected officials and soldiers as to his plan.
Lincoln discussed his views with General George McClellan during a visit to the latter’s headquarters. McClellan stated his strident opposition to them in writing. McClellan did not admire slavery but he despised abolitionists and he wrote one of his political backers “Help me to dodge the nigger – we want nothing to do with him. I am fighting for the Union…. To gain that end we cannot afford to mix up the negro question.” 
Lincoln then called border state Congressmen to sound them out on the subject on July 12th 1862 only to be met with opposition. Such opposition caused Lincoln “to give up trying to conciliate conservatives. From then on the president tilted toward the radical position, though this would not become publicly apparent for more than two months.” 
Lincoln’s cabinet met to discuss the proclamation on July 22nd 1862 and after some debate decided that it should be issued, although it was opposed by Postmaster General Montgomery Blair who believed that “the Democrats would capitalize on the unpopularity of such a measure in the border states and parts of the North to gain control of the House in the fall elections.”  Wisely, Lincoln heeded the advice of Secretary of State Seward to delay the announcement until military victories ensured that people did not see it as a measure of desperation. Seward noted: “I approve of the proclamation, but I question the expediency of its issue at this juncture. The depression of the public mind, consequent on our repeated reverses, is so great I fear…it may be viewed as the last measure of an exhausted government, a cry for help…our last shriek on the retreat.” Seward suggested that Lincoln wait “until the eagle of victory takes his flight,” and buoyed by military success, “hang your proclamation about his neck.” 
After the Battle of Antietam, President Lincoln issued the Preliminary Emancipation Proclamation. This document served as a warning to the leaders of the South, and insisted that there was much more at stake in their rebellion unless they surrendered; their slaves, the very “property” for which the seceded. The document “warned that unless the South laid down its arms by the end of 1862, he would emancipate the slaves.”  This was something that they could not and would not do, even as their cities burned and Confederacy collapsed around them in 1864.
The proclamation was a military order in which Lincoln ordered the emancipation of slaves located in the Rebel states and areas of those states occupied by Union troops. It was not designed to change law, which would have to wait until Lincoln felt he could have Congress amend the Constitution. Instead of law it was “the doctrine of military necessity justified Lincoln’s action.”  The concept emanated from Boston lawyer William Whiting who argued “the laws of war “give the President full belligerent rights” as commander and chief to seize enemy property (in this case slaves) being used to wage war against the United States.”  There was a legitimate military necessity in the action as Confederate armies used slaves as teamsters, laborers, cooks, and other non-combatant roles to free up white soldiers for combat duty, and because slaves were an important part of the Southern war economy which could not function without them. The proclamation gave inspiration to many slaves throughout the South to desert to the Union cause or to labor less efficiently for their Confederate masters. A South Carolina planter wrote in 1865:
“the conduct of the Negro in the late crisis of our affairs has convinced me that we were all laboring under a delusion….I believed that these people were content, happy, and attached to their masters, But events and reflection have caused me to change these positions….If they were content, happy and attached to their masters, why did they desert him in the moment of need and flocked to the enemy, whom they did not know….” 
The proclamation authorized that freed blacks be recruited into the Federal army and it ensured that freed slaves would not again be surrendered back into slavery. As Montgomery Blair had warned Lincoln and the Republicans suffered sharp electoral reverses as “Democrats made opposition to emancipation the centerpiece of their campaign, warning that the North would be “Africanized” – inundated by freed slaves competing for jobs and seeking to marry white women.” 
Lincoln’s response was to continue on despite the opposition and issue the Proclamation in spite of electoral reverses and political resistance. The vehemence of some Northern Democrats came close to matching that of white Southerners. The “white Southerner’s view of Lincoln as a despot, hell-bent on achieving some unnatural vision of “equality,” was shared by Northern Democrats, some of whom thought the president was now possessed by a “religious fanaticism.”  But Lincoln was not deterred and he understood “that he was sending the war and the country down a very different road than people thought they would go.”  He noted in December 1862:
“Fellow citizens, we cannot escape history….This fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation….In giving freedom to the slave, we assure freedom to the free – honorable alike in what we give, and what we preserve.”
For Lincoln the Emancipation Proclamation was something that he believed was something that he had to do, and he believed that it would be the one thing that he did in life that would be remembered. He had long been convicted of the need for it, but timing mattered, even six months before it might have created a political backlash in the North which would have fractured support for the war effort, and in this case timing and how he made the proclamation mattered.
The Emancipation Proclamation had military, domestic political, and diplomatic implications, as well as moral implications for the conduct of the war.
The military implication would take some time to achieve but were twofold. First, Lincoln hoped that the Emancipation Proclamation would encourage former slaves, as well as already free blacks in the North to join the Union cause and enlist to serve in the Federal Army. The act would vest African Americans in the Union’s cause as little else could, and at the same time begin to choke-off the agricultural labor force that provided the backbone of the Confederate economy. Frederick Douglass eloquently made the case for African Americans to serve in July 1863, telling a crowd in Philadelphia, “Do not flatter yourself, my friends, that you are more important to the Government than the Government is to you. You stand but as a plank to the ship. This rebellion can be put down without your help. Slavery can be abolished by white men: but Liberty so won for the black man, while it may leave him an object of pity, can never make him an object of respect…. Young men of Philadelphia, you are without excuse. The hour has arrived, and your place is in the Union army. Remember that the musket – the United States musket with its bayonet of steel – is better than all the parchment guarantees of Liberty. In you hands the musket means Liberty…”  By the end of the war over 180,000 African American men would serve as volunteers in the United States Army.
Politically the proclamation would the diplomatic purpose by isolating the Confederacy from European assistance. This it did, after the proclamation public sentiment, especially among Europe’s working classes turned solidly against the Confederacy. Domestically it would break-ground for the Thirteenth Amendment, which Lincoln, the pragmatic lawyer was needed to actually abolish slavery. Morally, it would serve as the guarantee of The United States Government’s public, irrevocable pledge of freedom to African Americans if the North won the war.
Lincoln signed the order on January 1st 1863. As he got ready to sign the document he paused and put down the pen, speaking to Seward he said “I never, in my life, felt more certain that I was doing right, than I do now in signing this paper….If my name ever goes down in history it will be for signing this act, and my whole soul is in it.”  The opening paragraph read:
“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.” 
At the ends of the proclamation he added the words suggested by his devoutly Christian Secretary of the Treasury Salmon Chase: “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.” 
The response throughout the North was euphoric as celebrations took place throughout the North. In some cities one hundred gun salutes were fired. At Boston’s Tremont Temple people broke out singing a hymn “Sound the loud timbrel o’er Egypt’s dark sea, Jehovah hath triumphed, his people are free.”  The Boston Daily Evening Telegraph predicted, “Slavery from this hour ceases to be a political power in this country…such a righteous revolution as it inaugurates never goes backward.” 
Frederick Douglass wrote about his reactions to the Emancipation proclamation as he had nearly despaired wondering if the Lincoln administration would actually take up the fight for emancipation:
“The fourth of July was great, but the first of January, when we consider it in all of its relations and bearings in incomparably greater. The one we respect to the mere political birth to a nation, the last concerns national life and character, and is to determine whether that life and character shall be radiantly and glorious with all high and noble virtues, or infamously blackened, forevermore, with all the hell-darkened crimes and horrors which we attach to Slavery.” 
The proclamation was not all some had hoped for and it was certainly provoked a negative response in the South and among many Northern Democrats. Southerners accused Lincoln of inciting racial warfare and Jefferson Davis responded “The day is not so distant when the old Union will be restored with slavery nationally declared to be the proper condition of all of African descent.” 
But the proclamation did something that politicians, lawyers did not comprehend, that “the details of the emancipation decree were less significant than the fact that there was an emancipation decree, and while the proclamation read like a dull legal brief, filled with qualifying clauses and exceptions, it was not language made for this, finally, a moral document. It was its existence, its title, its arrival into this world, its challenge to the accepted order, and from that there was no turning back. In this sense it was a revolutionary statement, like the Declaration itself, and nearly as significant.” That the proclamation most certainly was and it was a watershed from which there was no stepping back. “It irrevocably committed the government of the United States to the termination of slavery. It was an act of political courage, take at the right time, in the right way.” 
However, it would take another two years, with the Confederacy crumbling under the combined Federal military onslaught before Lincoln was able to secure passage of the Thirteenth Amendment to the Constitution in January 1865. The amendment abolished slavery and involuntary servitude throughout the country, as well as nullified the fugitive slave clause and the Three-Fifths Compromise. It would be followed after Lincoln’s death by the Fourteenth Amendment which reversed the result of the Dred Scott decision and declared that all people born in the United States were citizens and entitled to the rights of citizenship. During the Grant administration the Fifteenth Amendment was passed, and this finally extended to African American men, the right to vote in every state.
Though limited in scope, the Emancipation Proclamation had more than a domestic military, social and political effect. It also had an effect on foreign policy which ensured that Britain, and thereby France would not intervene in the war on behalf of the Southern Confederacy. It stopped all British support for the Rebels to include seizing warships that had been contracted for by Confederate agents that were building or being fitted out in British Yards. Likewise the British rejected various proposals of Emperor Napoleon III to intervene in the war in late 1862 and during the summer of 1863.
Effects of the Emancipation Proclamation on Military Law
The Emancipation Proclamation and the elimination of slavery also impacted the Union war effort in terms of law, law that eventually had an impact around the world as nations began to adapt to the changing character of war. It was important because for the first time slavery was accounted for in the laws of war. The “Instructions for the Government of Armies of the United States in the Field, General Orders No. 100 by President Lincoln, April 24, 1863; Prepared by Francis Lieber, LLD noted in Article 42 of that Code:
“Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that “so far as the law of nature is concerned, all men are equal.” Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.” 
It continued in Article 43:
“Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service.” 
The Continued Fight for Emancipation: Dealing with the Copperheads and the Passage of the Thirteenth Amendment
But there were still legitimate concerns that slavery might survive as the war continued. Lincoln knew that in issuing the Emancipation Proclamation raised the stakes of the war far higher than they had been. He noted, “We shall nobly save, or meanly lose, the last best hope on earth.”  The threat of the destruction of the Union and the continuance of slavery in either the states of the Confederacy, the new western states, territories, or the maintenance of the Union without emancipation was too great for some; notably, the American Freedmen’s Commission to contemplate. With Grant’s army stalled outside Richmond the Copperheads and the peace party gained influence and threatened to bring about a peace that allowed Confederate independence and the continuance of slavery; members of that caucus they Edwin Stanton in the spring of 1864:
“In such a state of feeling, under such a state of things, can we doubt the inevitable results? Shall we escape border raids after fleeing fugitives? No man will expect it. Are we to suffer these? We are disgraced! Are we to repel them? It is a renewal of hostilities!…In the case of a foreign war…can we suppose that they will refrain from seeking their own advantage by an alliance with the enemy?”
The effort of the Copperheads and the peace party to was soon crushed under the military successes of William Tecumseh Sherman’s armies in Georgia. This was especially true of the capture of Atlanta, which was followed by Sherman’s march to the sea and the Carolinas. Additionally the naval victory of David Farragut’s fleet at the Battle of Mobile Bay served to break the stranglehold that the Copperheads were beginning to wield in Northern politics. These efforts helped secure Lincoln’s reelection by a large margin in the 1864 presidential election over a divided Democratic opposition, whose presidential nominee McClellan could not even endorse his party’s platform.
In his Second Inaugural Address, Abraham Lincoln discussed the issue of slavery as the chief cause of the war. In it, Lincoln noted that slavery was the chief cause of the war in no uncertain terms and talked in a language of faith that was difficult for many, especially Christians, who “believed weighty political issues could be parsed into good or evil. Lincoln’s words offered a complexity that many found difficult to accept,” for the war had devastated the playground of evangelical politics, and it had “thrashed the certitude of evangelical Protestantism”  as much as the First World War shattered Classic European Protestant Liberalism. Lincoln’s confrontation of the role that people of faith brought to the war in both the North and the South is both illuminating and a devastating critique of the religious attitudes that so stoked the fires of hatred. His realism in confronting facts was masterful, and badly needed. He spoke of “American slavery” as a single offense ascribed to the whole nation.” 
“One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.” 
 Ibid. Foner Forever Free: The Story of Emancipation and Reconstruction p.42
 Ibid. Freehling The South vs. The South p.47
 Brewster, Todd. Lincoln’s Gamble: The Tumultuous Six Months that Gave America the Emancipation Proclamation and Changed the Course of the Civil War Scribner a Division of Simon and Schuster, New York and London p.59
 Ibid. McPherson The Battle Cry of Freedom p.364
 Ibid. McPherson The Battle Cry of Freedom p.504
 McPherson, James M. Tried by War: Abraham Lincoln as Commander in Chief Penguin Books, New York and London 2008 p.109
 Ibid. Goodwin Team of Rivals p. 468
 Ibid. Foner Forever Free p.49
 McGovern, George Abraham Lincoln Times Books, Henry Holt and Company, New York 2009 p.70
 Ibid. McPherson Tried by War: p.108
 Ibid. Zinn The Other Civil War p.39
 Ibid. Foner Forever Free p.49
 Ibid. Brewster Lincoln’s Gamble p.169
 Ibid. Guelzo Fateful Lightning p.184
 Ibid. Foner Forever Free p.49
 Douglass, Frederick. Philadelphia Speech of July 6th 1863 recorded in the Liberator in The Civil War and Reconstruction: A Documentary Collection edited by William E. Gienapp, W.W. Norton and Company, New York and London 2001 p.221
 Ibid. Goodwin Team of Rivals p. 499
 Lincoln, Abraham The Emancipation Proclamation The National Archives & Records Administration retrieved from http://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html 14 June 2014
 Ibid. Lincoln The Emancipation Proclamation
 Ibid. Brewster Lincoln’s Gamble p.244
 Ibid. McPherson The Battle Cry of Freedom p.501
 Ibid. Guelzo Fateful Lightning pp. 180-181
 Ibid. Goldfield America Aflame p.263
 Ibid. Brewster Lincoln’s Gamble p.245
 Ibid. McGovern Abraham Lincoln p.78
 Reichberg, Gregory M, Syse Henrik, and Begby, Endre The Ethics of War: Classic and Contemporary Readings Blackwell Publishing Ltd, Malden, MA and Oxford UK 2006 p.570
 Ibid. Reichberg et al. The Ethics of War p.570
 Ibid. Goldfield America Aflame p.263
 Ibid. Guelzo Fateful Lightning p.534
 Ibid. Goldfield America Aflame p.358
 Ibid. Wills Lincoln at Gettysburg p.186