Act of Justice

Act of Justice: Lincoln's Emancipation Proclamation and the Law of War

Burrus M. Carnahan
Copyright Date: 2007
Pages: 212
https://www.jstor.org/stable/j.ctt2jcrrq
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  • Book Info
    Act of Justice
    Book Description:

    In his first inaugural address, Abraham Lincoln declared that as president he would "have no lawful right" to interfere with the institution of slavery. Yet less than two years later, he issued a proclamation intended to free all slaves throughout the Confederate states. When critics challenged the constitutional soundness of the act, Lincoln pointed to the international laws and usages of war as the legal basis for his Proclamation, asserting that the Constitution invested the president "with the law of war in time of war." As the Civil War intensified, the Lincoln administration slowly and reluctantly accorded full belligerent rights to the Confederacy under the law of war. This included designating a prisoner of war status for captives, honoring flags of truce, and negotiating formal agreements for the exchange of prisoners -- practices that laid the intellectual foundations for emancipation. Once the United States allowed Confederates all the privileges of belligerents under international law, it followed that they should also suffer the disadvantages, including trial by military courts, seizure of property, and eventually the emancipation of slaves. Even after the Lincoln administration decided to apply the law of war, it was unclear whether state and federal courts would agree. After careful analysis, author Burrus M. Carnahan concludes that if the courts had decided that the proclamation was not justified, the result would have been the personal legal liability of thousands of Union officers to aggrieved slave owners. This argument offers further support to the notion that Lincoln's delay in issuing the Emancipation Proclamation was an exercise of political prudence, not a personal reluctance to free the slaves. In Act of Justice, Carnahan contends that Lincoln was no reluctant emancipator; he wrote a truly radical document that treated Confederate slaves as an oppressed people rather than merely as enemy property. In this respect, Lincoln's proclamation anticipated the psychological warfare tactics of the twentieth and twenty-first centuries. Carnahan's exploration of the president's war powers illuminates the origins of early debates about war powers and the Constitution and their link to international law.

    eISBN: 978-0-8131-7273-6
    Subjects: History, Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. 1-4)

    Only once did Abraham Lincoln explain to the American people the legal principles underpinning his Emancipation Proclamation. On August 26, 1863, Lincoln sent James C. Conkling a wide-ranging defense of the proclamation on political, practical, and military grounds that was intended to be read to a mass meeting in Springfield, Illinois. In one key paragraph, President Lincoln answered critics who argued that the proclamation infringed on the constitutional protection of private property. “I think,” he began, “the constitution invests its commander-in-chief with the law of war in time of war.” The most that his critics could say, “if so much,”...

  5. 1 Planting the Seed: Charles Sumner and John Quincy Adams
    (pp. 5-24)

    Senator Charles Sumner of Massachusetts hurried to the White House as soon as he learned that the Confederates had fired on Fort Sumter in April 1861. There he urged President Lincoln to use his power as commander in chief of the armed forces under the Constitution to free the slaves in the rebellious states. As commander in chief he could, Sumner argued, use any means necessary to suppress the rebellion. Those means included a proclamation offering freedom to the enemy’s slaves.¹

    Sumner’s advice must have been startling to the new president. Lincoln’s law practice in Illinois had not prepared him...

  6. 2 The Supreme Court on Private Property and War
    (pp. 25-40)

    Where the laws of war apply, the ordinary civil and criminal laws are swept aside, much as generals Thomas Jesup and Zachary Taylor swept aside local laws on fugitive slaves to ensure that their Seminole captives were treated as prisoners of war. Peacetime law is not to be disregarded in every wartime situation, however. The application of the laws of war focuses primarily on relations between enemies, not persons on the same side. Two nineteenth-century decisions of the U.S. Supreme Court illustrate this distinction.

    United States v. Brown¹ arose out of the War of 1812 with England. Immediately before the...

  7. 3 Criminal Conspiracy or War?
    (pp. 41-60)

    In the summer of 1861, it was not clear whether the Lincoln administration wanted any of the laws of war to apply to its relations with the rebels. And the president could hardly claim to use powers granted him by the laws of war if those laws did not apply. History had provided Lincoln with two models for effectively confronting a rebellion with military force. President Andrew Jackson, whose portrait Lincoln kept in his office at the White House, had threatened force against South Carolina in the Nullification Crisis of 1832–1833. Earlier, President George Washington had mobilized and led...

  8. 4 The Union Applies the Law of War
    (pp. 61-70)

    Not until April 1863 did the Federal government issue a formal statement declaring its intention to apply the law of war to Confederate forces. Long before then, however, that law had been applied in practice by both the Union and Confederate armies. The Lincoln administration accepted the law of war little by little, in response to specific needs and pressures during the first year of the Civil War. At each stage, the process was gradual and hesitant out of concern that allowing yet another rule of international law to govern relations with the rebels would accord too much official recognition...

  9. 5 The Law as a Weapon
    (pp. 71-82)

    During the fall and winter of 1861–1862, while the U.S. government slowly conceded to Confederate forces the rights of international belligerents, U.S. military commanders in the field started to use the law of war as a sword against the rebels. The president had begun this process himself in April when he claimed the right to prohibit neutral trade with Southern seaports by placing them under a blockade. In the fall, Federal authorities increasingly claimed the right to punish, as unlawful combatants, guerrillas and bushwhackers who attacked Union forces and military assets behind U.S. military lines without being enrolled in...

  10. 6 Congress Acts and the Confederacy Responds
    (pp. 83-92)

    By the spring of 1862, the Lincoln administration had, as a matter of policy, accorded Confederate forces all the rights of legitimate belligerents under the laws of war. Through military commissions, the administration was enforcing the laws of war against unlawful combatants for the Confederacy. The administration was not, however, asserting the full belligerent right to seize enemy property or free enemy slaves. To senators Orville Browning and Charles Sumner, it appeared obvious that the laws of war should apply to enemy property, including “slave property.”

    From where the president sat, the problem was more complex. For one thing, his...

  11. 7 Military Necessity and Lincoln’s Concept of the War
    (pp. 93-116)

    The South’s restrained response to the First Confiscation Act strengthened the political barriers to Lincoln’s use of the emancipation weapon. Northerners holding property on Confederate territory could now be expected to join the white populations of the border states, Democrats, and conservative Republicans in opposing any Federal interference with “slave property” held by the enemy. In his letter to Orville Browning, President Lincoln had hinted that he might adopt an emancipation policy if he saw the military necessity for it. If the president and the Republicans were to remain in power, that necessity would have to be clear enough to...

  12. 8 The Proclamation as a Weapon of War
    (pp. 117-132)

    In its final form, the Emancipation Proclamation was based on two of the government’s belligerent rights under the law of war. It relied on the right to seize and destroy enemy property for reasons of military necessity, and on the right to seek allies through promising liberty to an oppressed people.

    The president had decided “to procure an ally” from the enslaved people of the South months before he accepted Salmon Chase’s suggestions on the wording of the final proclamation. As a military measure, the president saw emancipation primarily as a means of weakening the rebels by withdrawing slave labor...

  13. 9 The Conkling Letter
    (pp. 133-138)

    Whatever its long-term international effects, General Order 100 had no discernable impact on the political and legal debate about the morality, wisdom, and constitutionality of the Emancipation Proclamation. This intense, emotional, and highly learned controversy began as soon as the preliminary proclamation was issued and continued after the final proclamation entered into force.¹ The president initially remained aloof from the furor he had provoked, waiting for the right time and occasion before publicly defending this most controversial of his actions.

    One important development came on March 10, 1863, when the U.S. Supreme Court issued its decision inThe Prize Cases.²...

  14. 10 A Radical Recognition of Freedom
    (pp. 139-142)

    In a lecture at the Lincoln Museum in 2004, Allen Guelzo noted that “the most obvious fact about the Emancipation Proclamation that raises question-marks in people’s minds is the matter of timing:why did he wait so long?. . . If the Civil War was really about slavery, and Lincoln was in earnest about abolishing slavery, why didn’t he pick up his pen on April 13th, 1861, [when Fort Sumter surrendered] and free the Confederacy’s slavesthen?”¹ During his lifetime, Lincoln’s antislavery critics had faulted him for delaying almost two years before issuing an emancipation proclamation. “From the genuine...

  15. Appendix A: First Confiscation Act, August 6, 1861
    (pp. 143-144)
  16. Appendix B: Browning–Lincoln Correspondence, September 1861
    (pp. 145-156)
  17. Appendix C: Second Confiscation Act, July 17, 1862
    (pp. 157-162)
  18. Appendix D: Emancipation Proclamation, First Draft, July 22, 1862
    (pp. 163-164)
  19. Appendix E: Preliminary Emancipation Proclamation, September 22, 1862
    (pp. 165-168)
  20. Appendix F: Final Emancipation Proclamation, January 1, 1863
    (pp. 169-172)
  21. Notes
    (pp. 173-190)
  22. Index
    (pp. 191-202)