Truth v. Myth: The Emancipation Proclamation was not useless

In part 2 of my series on Lincoln and slavery, we address the Emancipation Proclamation.


Ever since I was a kid, I have read that the Emancipation Proclamation was a sham. It only freed a fraction of enslaved people, and only freed them where the federal government had no power to enforce it,  and therefore had no real power or purpose. It was an empty gesture by a president who was pro-slavery. Let’s set that straight right now. 


The main problem people have with the EP today is that it only freed enslaved people in areas that were rebelling (in the Confederacy), and not in areas of the Confederacy occupied by Union troops, and not in the border states of Missouri, Kentucky, Delaware, and Maryland that were slaveholding but not part of the Confederacy. As one of Lincoln’s witty critics at the London Times put it in 1863 put it, “Where he has no power Mr. Lincoln will set the negroes free; where he retains power he will consider them as slaves.” Abolitionists then and most people today wish Lincoln had freed all slaves in the Proclamation, and don’t understand why he wrote what he did instead.


People have also been discouraged by Lincoln’s moves to overturn and rescind orders some Union generals sent out once they occupied a Confederate area that freed enslaved people in that area. Why would he do that?


Because he knew that if slavery was going to be abolished in the United States, it was going to have to be made illegal.


That sounds a little redundant. But it’s the heart and soul of Lincoln’s actions and planning and his eventual Proclamation. Slavery was still legal in the United States during the Civil War (until 1863). The northern states had passed emancipation laws, but there was no federal law outlawing slavery (it seemed a moot point with slavery already outlawed on the state level). Lincoln realized that if army officers or even he himself, the president, sent out orders freeing enslaved people during the war, once the war was over, those newly freed people would have absolutely no legal protection from being re-enslaved. Because slavery would still be legal in the United States, even if the Confederacy was beaten. And until 1863, many people in the U.S. and the Confederacy figured that if the Union won the war, and the Confederate states returned to the Union, they would be allowed to keep slavery (but not be allowed to expand it into the west). Some people thought this would be temporary, others thought it would be permanent.


It’s hard for us to picture this now, because we know slavery was abolished by and during the war. But that’s only because of Lincoln’s Proclamation. Before he published a draft of the EP in August 1862, slavery was still on the table, and very much alive as an option.


So Lincoln rescinded those orders his generals sent out, because he knew they would have no legal power if the war ended and slavery was not abolished. If a general freed enslaved people, and then those people were successfully forced back into slavery, it would damage any future attempt to abolish slavery in general.


Lincoln also knew that whatever he did to end slavery would come in for powerful court challenges, as people fought it, and that Supreme Court Chief Justice Taney would be more than eager to strike down a Lincoln law against slavery. Ever since Lincoln had suspended habeas corpus (which allows people to know what they are being arrested for, and guarantees them a speedy court trial by jury) during the war, Taney had hated Lincoln. Lincoln knew that Taney would be ready to attack any attempt to end slavery that Lincoln tried to push.


Therefore, Lincoln knew that he could not go with “the satisfaction of a ‘spirit’ overriding the law… not the exercise of [his] will rather than reason,” as Guelzo puts it. [Guelzo 5] Whatever Lincoln did to end slavery had to be fully legal, stand up in court, and have the buy-in of the American people, whom he would have liked to have vote on any such measure.


His first plan was the Delaware Plan. Delaware was one of the four neutral Border states. Lincoln was fearful that a Union general would go into one of these Border states and start freeing enslaved people, enraging slaveholders and driving all of the Border states into the Confederacy. (If Maryland left the Union, Washington, DC itself would be located inside the Confederacy.)  Before that could happen, Lincoln tried to get the neutral, slaveholding Border states to give up slavery in return for a cash compensation. He called representatives from those states to Washington to make them the offer, infuriating abolitionists who hated the idea of slaveholders getting a reward for ending slavery.


If the Border states would give up slavery peacefully, it would destroy the Confederacy’s chances of getting them to leave the Union, and it would make it much easier for Lincoln to abolish slavery legally in the U.S., because then no state actually in the U.S. would be slaveholding. Then, if the Confederacy lost the war and had to come back into the Union, it would have to give up slavery because slavery would be illegal in the U.S.


But the Border states would not go for the Delaware Plan. Delaware slaveholders were not ready to give up slaveholding, and state papers cast doubt and mockery on the government’s promise to pay $900,000 to slaveholders for giving up their enslaved people. [Ibid. 92] The other reason for the rejection of the Delaware Plan was that many Americans realized that for the first time, an American president was making moves to eradicate slavery. “The great, transcendent fact is, that for the first time… we have the recommendation from the presidential chair of the abolition of slavery…” said the Daily National Republican on March 10, 1862. The debate was no longer about how to contain slavery or where it would be allowed, but about getting rid of it, forever.


Lincoln was, at this point, still adamant about shipping the black Americans who were freed by the Delaware Plan “back” to Africa. This was not about racism. It was a cold, hard assessment of the facts, of what enslaving one group of people because of their race does to both the enslaved and enslaving races. “You and we are different races,” said Lincoln, “[and] your race are suffering, in my judgment, the greatest wrong inflicted on any people. [But] even when you cease to be slaves, you are yet far removed from being placed on an equality with the white race. [This is] a fact with which we have to deal.” In this, Lincoln was prescient, for we are still working, 144 years later, on getting all white Americans to place black Americans “on an equality.”


Lincoln figured black Americans would be happy to leave a place and a people that had enslaved them so bitterly. “I do not know how much attachment you may have toward our race,” he said. “It does not strike me that you have the greatest reason to love [us].” [Ibid. 142] Lincoln said these things to a committee of black American leaders he called to the White House to discuss colonization of formerly enslaved people. (The first time any president had invited black leaders to a White House conference.) These men bravely stood up to Lincoln and told him they did not want to leave their own country, but work in it and have the benefits of it. Lincoln, doubtful, clung to colonization, but only voluntary colonization. He never planned to have black Americans forcibly shipped to Africa.


We are irritated and disappointed to hear Lincoln talk about colonization, but the one silver lining in it is that it shows how serious he was about ending slavery. He felt he had to have a plan in place to remove all the people he was determined to free from slavery.  That plan was the EP.


When it became clear that there was no way the Delaware Plan was going to be accepted, in any shape or form, Lincoln might have given up. He might have just hoped that the war would end slavery by itself, that if the Confederacy was defeated, slavery would soon be abolished in the South. He could have been like the Founders and looked ahead to distant, better times. But instead he moved ahead with what he felt was his only remaining option to end slavery: using the war powers given to the president by the Constitution.

He would write an emancipation proclamation, freeing enslaved people in the Confederacy. It would be in the same vein as the Confiscation Acts that allowed Union soldiers to take food, weapons, horses, or any other thing from the Confederate army or civilian public that was helping the Confederate war effort. Under the Confiscation Act, enslaved people had been considered property and labor that helped the Confederate war effort, and had therefore been “seized” by Union generals.

But unlike the Confiscation Act, the EP would be eternally binding. Lincoln knew that the Confiscation Act would not be binding if the war ended and slavery had not been repealed. The Confiscation Act could only free enslaved people during a war, when they were part of a war effort. If the war ends and slavery still exists, those people are returned to slavery.

So his Emancipation Proclamation, unlike the Confiscation Act, would free enslaved people in the Confederacy, not until the war was over, but forever. We tend to miss that word—and henceforward shall be free. From this time forward. By abolishing slavery in the states in rebellion, Lincoln was saying that once the war was won by the Union, and the southern states in rebellion returned to the Union, they would have to return without slavery. Most of the country would be free because northern states had individual anti-slavery laws and the southern states were banned from holding slaves by the EP.

The only problem would then be the border states and the west. The border states were slave states, and the west was technically open to slavery. To fix this, and end slavery in the United States completely and permanently, Lincoln would present an amendment to the Constitution to abolish slavery on the national rather than individual state level. This would be the Thirteenth Amendment, passed in December 1865.

For now, in 1863, the goal was to ensure that the Confederate states returned to the Union as free states after a Union victory in the war. That’s what the EP did. Read on for the details by clicking below.

Next post: Confiscation v. Emancipation

6 thoughts on “Truth v. Myth: The Emancipation Proclamation was not useless

  1. I think you’re spot on here. I too dislike the refrain that the EP did “nothing.” In addition to what you’ve mentioned above, it literally transformed the armies of the Union (even though most soldiers didn’t like the idea) into armies of liberation. According to the EP, “the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” This meant that, from that point forward, as the armies captured new ground, they were to “maintain the freedom” of slaves. The notion was completely revolutionary.


  2. Its funny how you say Lincoln was not a racist, but you present information that proves that he was. Not that it really matters whether or not he was a racist in personal terms. Historians do a diservice to the reading public by focusing on this meaningless issue anyway.

    More important was the fact of the country’s political economy being addicted to black slave labor–economic growth could not happen without racial slavery–this is why it was reconstituted after the war and Lincoln’s administration refused to fund a broad based Liberian or Caribbean oriented emigration programs. A large share of the national economy would have collapsed if 4M former slaves were allowed to leave the country via emigration.

    What matters is whether or not he actually used executive power to end slavery without prodding about what to do with all the runaways leaving slaveholder estates during the war. The answer is unequivocally no. Therefore, we see that enslaved laborers were freeing themselves long before vaccuous statements like the confiscation acts and the E.P. were drafted.

    Your legal argument is also problematic because it ignores the context. Lincoln and his associates realized that they could not win the war if they did not get rid of chattel slavery. Cause the Confederacy was using slave labor as a military weapon. This could not be tolerated, if they wanted to win the war. So the confiscation acts and the E.P. were no more than military recruitment tools, not emancipation documents. However, when runaways became soldiers in the union army, they were clearly agents of emancipation.

    Moreover, he could have used the provision in the constitution giving a president dictatorial power during war time to deem slavery illegal in the border states. He didn’t, even though these states were under his command. He surely didn’t blink in using these powers to throw his political enemies in jail in MD.

    So stop romanticizing Lincoln. He was the leader of White “Free Soiler” men who hated slaveholders. These men had no love for Black people (enslaved or free) though–at best they wished to have distance between themselves and Blacks. So once the war was over, this constituency was all for removing the thousands of federal troops stationed in the American South necessary to preserve the constitutional rights of the new black citizens.


    1. Hello John; thanks for writing. To take your points in order:
      1) Lincoln began as a racist but did not finish as one. He made racist remarks at one point in his life, and repudiated them later.
      2) I’m not sure it’s meaningless to focus on people’s personal beliefs on race, since those fueled legislation on slavery.
      3) Lincoln dropped cthe olonization program for two reasons: first, his offer to pay slaveholders in return for them letting their enslaved people go (to Africa) fell flat; and second, black Americans and their leaders made it clear to Lincoln that they would not go “back” to Africa.
      4) I don’t think you can say Lincoln’s Administration wanted to keep newly freed black Americans basically enslaved—that was really the work of those who came after him.
      5) All those enslaved people who were able to escape to Union lines would not have remained free once the war ended—not with the EP. So it is not vacuous. People who were accepted into Union lines, as ‘contraband of war’, would have had to be returned to slavery once the war ended, when they would no longer be part of the Confederate war effort. Confiscation acts are only valid during wartime, as are purely presidential war directives. The EP was ratified by the American people, and outlawed slavery in the U.S.—if slavery had not been outlawed, and the war ended, the Confederate states could well have returned to the Union with slavery.
      6) Yes, Lincoln hesitated to drive the border states into the war. This makes sense. And, again, any dictatorial power he used during wartime would have been automatically rescinded during peacetime, including outlawing slavery.
      7) Again, it’s hard to connect any Reconstruction action to Lincoln, since he was killed in April 1865. Blame for the failure of Reconstruction must fall squarely on recalcitrant southerners and wavering northerners, who tired of sending people and treasure to the south and just washed their hands of it.

      Romanticizing is never good; cynicism must be used sparingly as well.


  3. Why did not President Lincoln set up programs to educate the freed slaves and provide sustenance and Land to live on.The American Indians had much land that was confiscated.


    1. Lincoln did not live long enough to put any of his Reconstruction plans into action. But it’s unlikely that freed people would want to do a forced relocation to the west any more than the Native Americans had wanted to. Freed people were remarkably determined to stay on the land they had tilled, amongst the communities they had forged during slavery, and hoped of course to track down family members who had been sold. All this meant they would mostly remain in the South in the decades after the Civil War.


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