Emancipation Proclamation

Lincoln issued the Emancipation Proclamation on January 1, 1863, 100 days after issuing a document called the Preliminary Emancipation Proclamation. The preliminary proclamation, in turn, was enabled—and some historians believe compelled—by the passage of the Second Confiscation Act in July 1862. There was an imperative to rethink laws about enslaved people and formerly enslaved people in the context of the war, and these acts and proclamations were steps in the progressive response of the government to that situation. Each one was more detailed than the one before, and/or moved closer to emancipation.

By many accounts, this chain of legal acts and decrees was set in motion by what some have called the “self-emancipation” of three enslaved people who escaped the Confederacy just weeks after the Civil War began and fled to Union territory, at great personal risk.

In May 1861, they took themselves in a rowboat across the James River and presented themselves to Union officials at Fort Monroe, a Union holdout. Their names were Frank Baker, Shepard Mallory, and James Townsend. The man in charge at Fort Monroe was Major General Franklin Butler who, until four weeks prior, knew nothing about the military. He was a lawyer, and he had joined the ranks of the Union Army as an officer just after the war began. Butler knew well that the applicable law, in normal times, was the Fugitive Slave Act of 1850. This act compelled the return of escaped enslaved people to their enslavers. Butler also knew that these were not normal times. When Colonel Mallory of Virginia requested Butler to return the fugitives from slavery to him, Butler, thinking on his feet, decided that the laws of war, an aspect of international law, applied. He told Colonel Mallory that he was not returning them; that they were what the laws of war called “contraband of war,” and he didn’t have to return them. After all, he said, it was the Confederate States who decided they were a different country.

Butler quickly wrote to Washington to explain the situation and his response to it. Over the next few weeks, dozens more enslaved people made their way across the river to Fort Monroe and to their freedom. Their actions and Butler’s considered response set in motion a chain of events and legal acts that included the Confiscation Acts of 1861 and 1862 and culminated in the Emancipation Proclamation.

The first Confiscation Act defined the right of the United States to seize contraband. The Second Confiscation Act made more plain and explicit that enslaved people from Confederate states who either escaped or came under the dominion of Union forces “shall be deemed captives of war”—in other words, not contraband or chattel—and the act specifically declared that they “shall be forever free of their servitude.” The Second Confiscation Act was strongly worded because it was becoming increasingly clear that emancipation was on the table, both as a moral necessity and a military one. The act was passed on July 17, 1862. Only days later, on July 22, Lincoln presented a draft of an emancipation proclamation to his cabinet.

As already stated, the acts drew on the laws of war, just as the Emancipation Proclamation cited Lincoln’s war powers. The United States government was increasingly relying on the laws of war, and continued to do so. In 1861, captured soldiers were already being called prisoners of war and treated as such. Lincoln’s invocation of war powers is significant because prior to the war, it was widely understood that there was no constitutional path for a president to end slavery. This was Lincoln’s considered view as a lawyer, but also as a presidential candidate who hated slavery and who had run on an anti-slavery platform. However, as far back as John Quincey Adams, it was thought that slavery in the United States could ultimately be ended be through the laws of war. Adams stated that laws of war allowed commanders to emancipate the enslaved people of an invaded country. Although at the outset, Lincoln wanted above all to preserve the union, he too knew the score: Once the war was underway, the power of the laws of war to work toward abolition was great.

Historian Burrus Carnahan names two rights granted to the United States under the laws of war that Lincoln relied on when writing the Emancipation Proclamation: “the right to seize and destroy enemy property for reasons of military necessity” and “the right to seek allies through promising liberty to an oppressed people” (Carnahan, Burrus. Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War. University Press of Kentucky, p. 117). Accordingly, the final form of the Emancipation Proclamation both emancipates the enslaved people and welcomes them into service in the United States Army, and does so by invoking “military necessity” and Lincoln’s powers as Commander-in-Chief “in time of actual armed rebellion against the authority and government of the United States” (Carnahan, p. 170).