At this juncture General Hunter, in command of the "Department of the South," which theoretically included also the States of South Carolina, Georgia and Florida, issued an order declaring the slaves in these states free. This was May 9, 1862. Lincoln immediately countermanded Hunter's order, stating that such action "under my responsibility, I reserve to myself[867]." He renewed, in this same proclamation, earnest appeals to the border states, to embrace the opportunity offered by the Congressional resolution of April 10. In truth, border state attitude was the test of the feasibility of Lincoln's hoped-for voluntary emancipation, but these states were unwilling to accept the plan. Meanwhile pressure was being exerted for action on the Confiscation Bill; it was pushed through Congress and presented to Lincoln for his signature or veto. He signed it on July 12, but did not notify that fact to Congress until July 17. On this same day of signature, July 12, Lincoln sent to Congress a proposal of an Act to give pecuniary aid in voluntary state emancipation and held a conference with the congressional representatives of the border states seeking their definite approval of his policy. A minority agreed but the majority were emphatically against him. The Confiscation Bill would not affect the border states; they were not in rebellion. And they did not desire to free the slaves even if compensated[868].

Thus Lincoln, by the stubbornness of the border states, was forced toward the Congressional point of view as expressed in the Confiscation Bill. On the day following his failure to win the border state representatives he told Seward and Welles who were driving with him, that he had come to the conclusion that the time was near for the issue of a proclamation of emancipation as a military measure fully within the competence of the President. This was on July 13[869]. Seward offered a few objections but apparently neither Cabinet official did more than listen to Lincoln's argument of military necessity. Congress adjourned on July 17. On July 22, the President read to the Cabinet a draft of an emancipation proclamation the text of the first paragraph of which referred to the Confiscation Act and declared that this would be rigorously executed unless rebellious subjects returned to their allegiance. But the remainder of the draft reasserted the ideal of a gradual and compensated emancipation and concluded with the warning that for states still in rebellion on January 1, 1863, a general emancipation of slaves would be proclaimed[870]. All of the Cabinet approved except Blair who expressed fears of the effect on the approaching November elections, and Seward who, while professing sympathy with the indicated purpose, argued that the time was badly chosen in view of recent military disasters and the approach of Lee's army toward Washington. The measure, Seward said, might "be viewed as the last measure of an exhausted government, a cry for help; the government stretching forth its hands to Ethiopia, instead of Ethiopia stretching forth her hands to the government. It will be considered our last shriek on the retreat." He therefore urged postponement until after a Northern victory. This appealed to Lincoln and he "put the draft of the proclamation aside, waiting for victory[871]."

Victory came in September, with McClellan's defeat of Lee at Antietam, and the retreat of the Southern army toward Richmond. Five days later, September 22, Lincoln issued the proclamation, expanded and altered in text from the draft of July 22, but in substance the same[872]. The loyal border states were not to be affected, but the proclamation renewed the promise of steps to be taken to persuade them to voluntary action. On January 1, 1863, a second proclamation, referring to that of September 22, was issued by Lincoln "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...." The states affected were designated by name and all persons held as slaves within them "are, and henceforward shall be, free...." "I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence...." "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 favour of Almighty God[873]."

Such were the steps, from December, 1861, when the radical Sumner began his pressure for action, to September, 1862, when Lincoln's pledge of emancipation was made. Did these steps indicate, as British opinion unquestionably held, an intention to rouse a servile insurrection? Was the Confiscation Bill passed with that purpose in view and had Lincoln decided to carry it into effect? The failure of the slaves to rise is, indeed, the great marvel of the Civil War and was so regarded not in England only, but in America also. It was the expectation of the North and the constant fear of the South. But was this, in truth, thepurpose of the emancipation proclamation?