Emancipation Proclamation

The Emancipation Proclamation is a short text—a little over 700 words. It was issued on January 1, 1863, after a different proclamation made on September 22 that stated what was coming—namely, that the president was going to emancipate enslaved people who lived in the Confederacy. The document from September is called the Preliminary Emancipation Proclamation, and it is important to know because the text of the Emancipation Proclamation quotes a long passage from it.

Briefly, the Preliminary Emancipation Proclamation declared that on January 1, 1863, all enslaved people in the rebelling states would be “forever free” (Paragraph 3). It also encouraged the Confederate States to rejoin the union by promising they would be compensated for the loss of their wealth, and it stated that the US would fund a plan for African Americans to return to Africa, if they desired, or go colonize some other place in the world.

The Emancipation Proclamation is written in the formal language of a legal document, with nested clauses. It has the structure: Whereas X, now I do this, this, this, this, and this. The “whereas” says that the president issued a proclamation in September and then quotes two substantial paragraphs from that document. The first quoted paragraph makes two points. The first is that when January 1, 1863, arrives, “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” (Paragraph 2). This is, in other words, the plan to emancipate the enslaved people in the Confederacy. The second part of the paragraph guarantees that the US military will “recognize and maintain the freedom of such persons” once they are emancipated (Paragraph 2).

The next quoted paragraph determines the states that are in rebellion. This is important because the Emancipation Proclamation wasn’t meant to free all enslaved people in the territory that the Union considered its own—the United States. The Emancipation Proclamation only emancipated enslaved people in the Confederate States; enslaved people in the slaveholding states that had not rebelled were not emancipated.

The two quoted paragraphs from the earlier proclamation comprise the bulk of the opening “whereas” clause. This is followed by the next section, the bulk of the decree: “Now, therefore, I Abraham Lincoln […] by virtue of […X] do [Y]” (Paragraph 4). The “by virtue of” that he cites is significant. It is the power vested in him as commander-in-chief during a war. Lincoln is claiming executive power during an emergency, also called war powers, as the authority by which he can make such a sweeping decree without Congress.

He goes on to say that what he is decreeing is a “fit and necessary war measure for suppressing said rebellion” (Paragraph 4). Remember that Lincoln isn’t freeing all the enslaved people. His goal is circumscribed: to emancipate the enslaved people in the rebellious states of the Confederacy. He is doing this strategically, he says, as a war measure. Later in the document, he invites these freed people to join the war against the Confederacy. We know that more than 180,000 Black Americans did, in fact, join the war against the Confederacy, about 10% of Union soldiers.

The next part names the states and parts of states that are in rebellion and, as such, are the locations where this decree will apply. The paragraph concludes with another reminder that this proclamation emancipating enslaved people doesn’t apply everywhere. It doesn’t apply to the excepted parishes and counties enumerated in the paragraph, which are “left precisely as if this proclamation were not issued” (Paragraph 5).

Then, citing the same power and purpose (that he, Lincoln, is the Commander-in-Chief and that this is a “fit and necessary war measure” [Paragraph 4]), he gives the crux of the Emancipation Proclamation: “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” (Paragraph 6). Lincoln reiterates as done what was promised to be done in his Preliminary Proclamation, which he has just quoted, but using slightly different language (“thenceforward, and forever free” versus “henceforward free”). He adds that the military will “recognize and maintain” (Paragraph 6) the freedom of emancipated people. This is significant because there is a debate about whether the emancipated people could ever be considered citizens; here, Lincoln sidesteps all that and says that in any case, they will be protected in their freedom.

In the next paragraph, Lincoln “enjoins” these freed persons to “abstain from all violence, unless in necessary self-defense” (Paragraph 7). This touches, probably, on concerns about “slave riots” or race riots. He likewise encourages them to “labor faithfully for reasonable wages” (Paragraph 7). Importantly, in the preliminary proclamation, Lincoln had written that the United States would do nothing to “repress” the freed people “in any efforts they may make for their actual freedom” (Paragraph 2). The preliminary document says that if enslaved people in the South, emancipated according to Lincoln, engage in violent revolt against the slaveholding system, then the United States will not stop them. Here, in the final Emancipation Proclamation, he wants emancipated people to abstain from violence, unless in self-defense.

The difference is not as stark as it seems, however. In the next paragraph, the final proclamation welcomes emancipated people to fight in the US Army, something that the preliminary document didn’t broach. This was a major shift. It was important to the war effort to increase troops, certainly, and some historians have suggested that Lincoln conceived of it as a step toward the granting of full rights of citizenship: If African Americans can fight in the US Army, why can’t they vote?

The next paragraph states Lincoln’s belief that the decree is three things: an “act of justice,” “warranted by the Constitution,” and a “military necessity” (Paragraph 9). Because this is the concluding paragraph (of substance anyway), and because the Emancipation Proclamation is so concise, the threefold characterization is significant. An “act of justice” invokes a moral claim, “warranted by the Constitution” invokes a political and a legal one, and “military necessity” invokes a strategic but also a legal one. The political, moral, legal, and strategic are all aligned here.

The last paragraph is “In witness whereof [...]” (Paragraph 10), the formal conclusion to the decree.

There is a feature of the proclamation that causes confusion that can be explained if one understands its legal grounding. The troubling feature is this: The Emancipation Proclamation only freed enslaved people in places where it could not be enforced, and it didn’t free enslaved people in any of the places where it could. It was written to carefully exclude slaveholding states inside the Union, and the counties and parishes in the South that were already in Union control, dutifully enumerated in the document and regarding whom Lincoln wrote in the proclamation that nothing here applied to them. This curious feature was demanded by the laws of war granting Lincoln only the authority to free the enslaved people of the enemies of the United States. Lincoln accepted that the US Constitution didn’t give the executive the authority to emancipate enslaved people who were inside the United States. That would have to happen either state-by-state or via an amendment to the US Constitution.

On the basis of the proclamation, many enslaved Black people within the designated rebellion states immediately acted to free themselves. Many Black people gathered for the announcement on New Year’s Eve in 1862 to celebrate the highly anticipated “Freedom’s Eve.” It empowered them to exercise their now legal right to autonomy and, potentially, encouraged them to fight for their freedom to ensure the victory of the Union.

The Emancipation Proclamation emancipated more than 3.5 million enslaved people, and it set the nation firmly on the course toward abolition. On December 6, 1865, the 13th Amendment abolished slavery, except as punishment for criminal actions. On July 9, 1868, the 14th Amendment granted US-born or naturalized citizens’ rights, which in turn, gave formerly enslaved people, equal civil and legal rights. On February 3, 1870, the 15th Amendment granted male Black citizens the right to vote.