Emancipation Proclamation 12 Stat. 68 (1863)

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abraham lincoln, employing the Constitution's war powers, announced the Emancipation Proclamation on September 22, 1862. It had its roots in abolitionist constitutional theory. Although Lincoln's swift rise in the Republican party was due in part to his outspoken opposition to the extension of slavery, on the outset of the war he was bound by the Constitution (Article IV, section 2) and federal laws on fugitive slaves that required federal officials to return runaways, even to disloyal owners. Politically ambitious Union general George B. McClellan, a conservative would-be Democratic presidential candidate, sternly enforced the 1850 law; generals benjamin f. butler and John Charles Frémont, by contrast, refused to return runaways in their commands and armed some against rebel guerrillas. Lincoln countermanded the latter's orders to dim the issue of arming Negroes and to keep policy in civilians' hands.

Negroes continued to flee to Union lines no matter what orders civilians or generals issued. Awareness grew in the Union army and among bluecoats' families and other correspondents that almost the only trustworthy southerners were blacks. Gradually, sentiment increased that to return runaways was indecent and illogical, for slaves were the South's labor force. In Congress, with few exceptions, Democrats remained uneducable on the runaway issue and damned as unconstitutional any mass emancipation whether by executive order or statute and whether or not involving colonization of freedmen abroad or compensation to loyal owners. Republicans, from Lincoln down, altered their opinions on race matters. Some northern states softened racist black code clauses in constitutions and civil and criminal laws; some made laws color-blind. Congress, in addition to the confiscation acts and with Lincoln's assent, enacted laws in March, April, and June 1862, respectively, that prohibited military returns of disloyal owners' runaways without requiring a judicial verdict of disloyalty, ended slavery in the district of columbia with compensation to owners, and forbade slavery in the federal territories, thus challenging part of dred scott v. sandford (1857). In effect, Republicans, retaining their basic view of the Constitution as an adaptable instrument, were adopting aspirations that abolitionist constitutionalists had long advanced.

Fearing conservative gains in the 1862 congressional and state elections, congressional Republicans then marked time. Lincoln did not have this option. He determined to reverse two centuries of race history if continued Confederate intransigence forced further changes and if the Union won the war.

Therefore, following the Antietam "victory," Lincoln proclaimed that unless slaveowners in still-unoccupied states of the Confederacy (he excluded unseceded slaveholding states) publicly renounced the rebellion by January 1, 1863, their slaves "shall be then, thenceforward, and forever free." All Union military personnel must positively assist, not merely not impede, runaways from slavery. With respect to unseceded slaveholding states, Lincoln encouraged "immediate or gradual" emancipation by state initiative, with compensation to loyal owners and colonization of freedmen abroad.

The Proclamation was not an immediate success. It diminished opinion abroad favoring recognition of the Confederacy. Few southern whites abjured the rebellion before the deadline. Lincoln, on New Year's Day 1863, announced the Proclamation to be in effect. But he had enlarged his horizons, adding an announcement that he would recruit blacks for the Union's armies. Relatively few blacks lived in northern states. Lincoln's new policy, if successful—which meant if Union voters persevered, if enough slaves kept coming into Union lines, and if Union forces occupied enough Confederate areas—could drain the South of its basic labor force and augment the Union's military power.

The policy eventually succeeded. Almost 200,000 black bluecoats, overwhelmingly southern in origin, helped to crush the rebellion. Dred Scott was made irrelevant. Though black Union soldiers and sailors suffered inequities in rank, pay, and dignity compared to whites, their military record made it impossible for the nation to consider them again as submen in law, though racists advocated the retrograde view. Compared to their prewar status even in the free states, blacks' legal and constitutional conditions improved as a result of the Proclamation. It initiated also an irreversible revolution in race relationships leading to the wade-davis bill, the thirteenth amendment, and the civil rights act of 1866. But the eventual consequence of the Emancipation Proclamation was Appomattox; thereby, alternatives forbidden by Dred Scott, by the 1861 Crittenden Compromise, and by the aborted Thirteenth Amendment of 1861, became options. This society could be slaveless, biracial, and more decently equal in the constitutions, laws, and customs of the nation and the states.

Harold M. Hyman

(see also: Civil War.)


Belz, Herman 1978 Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era. New York: Norton.

Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. Pages 252–255. New York: Harper & Row.

Oates, Stephen B. 1977 With Malice Toward None: The Life of Abraham Lincoln. New York: Harper & Row.

Voegeli, v. Jacques 1967 Free But Not Equal: The Midwest and the Negro During the Civil War. Chicago: University of Chicago Press.