Tomorrow is the sesquicentennial of the release of the Preliminary Emancipation Proclamation on September 22, 1862. It is certainly one of the most momentous events concerning emancipation in the Civil War, demonstrating the Lincoln administration’s embrace of immediate, uncompensated freedom for the slaves. Or did it?
One thing that can be certain in September 1862 was Abraham Lincoln was committed to freeing the slaves. For the first half of 1862, President Lincoln had sought to coax the remaining four loyal slave states (Delaware, Maryland, Missouri, and Kentucky) into embracing gradual compensated emancipation. If nothing else demonstrated Lincoln’s sincerity on emancipation, his patient lobbying on this doomed initiative should put all doubts to rest.
Yet if the Preliminary Emancipation Proclamation shows anything, it was that Abraham Lincoln was willing to be flexible about the terms of emancipation, and let slavery persist for a time (although likely not permanently) if it would end the war and save the Union. For one thing, the Preliminary Emancipation Proclamation exempted the loyal slave states and areas of the Confederacy then under Union occupation in the hopes of conciliating slaveholders there to the federal government. For another, Lincoln would not free any slaves if the rebellious states returned to the Union by the end of 1862.
No doubt Lincoln did not expect the leaders of the Confederacy to accept his offer of reconciliation. But as he had with his plan of gradual compensated emancipation with the loyal slaves states, it was necessary politically to give the slaveholders of the rebel states the chance to keep their slaves for the time being if they would resume their loyalty to the Union. But the Confederates’ rejection of the Preliminary Emancipation Proclamation helped to justify divesting them of their slaves immediately when the document became final on New Year’s Day 1863.
Yet would the Emancipation Proclamation free any slaves at all? It was one thing for Lincoln to declare emancipation. It was quite another to put it into effect. This is where historians like Gary Gallagher have a point. Without a doubt the Union Army was indispensable to freeing the slaves. Indeed, the Emancipation Proclamation effectively turned it into an army of liberation. Where the Union Army went freedom usually followed for the slaves. It also turned the Confederate army into a force seeking to keep slavery, however much many southern soldiers might deny that fact. Hence, in a clever bit of political jujitsu, Abraham Lincoln made it difficult for the South to claim it merely was fighting for independence, and in the process made it all but impossible for the nations of Europe to recognize the Confederacy, however much it was otherwise in their geo-political interest to do so.
Still, it also is impossible to deny that without the slaves’ initiative, Abraham Lincoln likely would not have moved as far as fast as he had. Without intending to, but in countless acts of self interest by people desperate to be free, slaves fled to the Union-controlled territory and by doing so made an issue of themselves, and one that could not be ignored, however much certain Union commanders tried. So many slaves had fled to and fallen into Union hands by September 1862, slavery in the United States had suffered a grievous blow that made its long-term survival questionable, especially if the war continued, which it would for two and a half more years that would seal the completion of emancipation.
So, the Emancipation Proclamation, preliminary or final, was the executive branch of U.S. government recognizing what was already in many ways an accomplished fact. Adam Goodheart, in his April 2011 article on emancipation in the New York Times magazine relates a wonderful anecdote to this effect, which like he did I will close with. He writes:
Seward snorted. “Yes,” he said, “we have let off a puff of wind over an accomplished fact.”
“What do you mean, Mr. Seward?” the officer asked.
Source: http://www.nytimes.com/2011/04/03/magazine/mag-03CivilWar-t.html
Civil War Emancipation 
” For one thing, the Preliminary Emancipation Proclamation exempted the loyal slave states and areas of the Confederacy then under Union occupation in the hopes of conciliating slaveholders there to the federal government. For another, Lincoln would not free any slaves if the rebellious states returned to the Union by the end of 1862.”
These areas were exempted because legally and constitutionally, slavery could only be directly eliminated as a “military necessity.” The Border States were not in armed rebellion against the Unites States, therefore there was no military necessity to free them there. Thus it could not be done. The same would hold true for states that presumably returned to the Union. The only way it could legally and constitutionally be done in the states not in rebellion was through getting them to voluntarily do it themselves, thus Lincoln’s encouragement of gradual and compensated emancipation in those areas.
Hi Glenn. Thanks for pointing out the legal limitations of Lincoln’s war powers. It is questionable whether Lincoln had the authority to free the slaves even under his war powers. That is one reason why Lincoln began pushing Congress for what became the 13th Amendment, soon after the Emancipation Proclamation became final. To put the EP beyond constitutional challenge (and free slaves in areas not affected by this pronouncement).
Don
Agreed that it was questionable, but the fact remains that war powers was the legal grounds that he stood on when issuing the Emancipation Proclamation. But there was not even a question as to whether there were legal grounds for federal emancipation in the Border States. It was beyond dispute that the E.P. could definitely not apply there. In that light, the 13th amendment becomes necessary in order to end slavery in the Border States and in the other areas exempted from the E.P (as you acknowledge).
I think both Donald and Glenn are right. The “war powers” was a novelty in constitutional doctrine, and the phrase itself only appears for the first time in any official way in speeches J.Q. Adams made in Congress. But it had a certain amount of substance from the very nature of the President’s title, “Commander-in-Chief.” Curiously, when Lincoln refers to the “war power” (in the July 4, 1861 message to the special Congressional session), he speaks of the government’s “war power,” not his; yet he is describing actions which he took unilaterally as president. So long as slavery was, legally, a state construction, Lincoln had no authority to touch it. Nor, for that matter, did Congress, although it tried to do so obliquely through the Confiscation Acts (although Lincoln was probably right to see the Acts as trespass on the ban on attainder in the Constitution). But so long as it could be construed as an action stemming from “military necessity,” then he could indeed lay hands on it through his “war powers.” Still, there was a lot of jurisprudence which called into question the very existence of these “war powers,” which is why Lincoln hesitated as long as he did to invoke the “war powers,” and eventually saw the “king’s cure” in the form of a legislative act (the Maryland and Missouri abolition acts, then the 13th Amendment). My own suspicion is that he shinnied out on the legal limb to invoke the “war powers” to emancipate because he had become anxious in July that McClellan was contemplating a military intervention (Richard Slotkin and William Styple have made strong cases on McClellan’s perfidy in their recent books) which would have wiped out all chance of emancipation. One more irony: it was not so much the fugitives and contrabands who exercised pressure for emancipation — they actually generated more hostility to emancipation from Northern whites who attacked them as potential competition for jobs. (I mean, literally attacked; there were murderous race riots from Brooklyn to Toledo over firms employing ‘contrabands’). It was the slaves who were being worked by the Confederacy — Northern whites, soldiers and politicians especially, were enraged to see black slaves being used in military roles by the Confederates, and that resulted in calls for an emancipation decree which would help drain those slave workers away.