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Act of Justice

Lincoln's Emancipation Proclamation and the Law of War

Burrus Carnahan

Publication Year: 2007

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.

Published by: The University Press of Kentucky

Front cover

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pp. vii

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pp. ix

Many have generously given their time to review the manuscript for this book and offer corrections and suggestions. I especially thank George Anastaplo, Harold Holzer, Edward Steers, and Frank Williams for their valuable help. Of course, these eminent scholars are not responsible for any errors remaining in the text. ...

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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. ...

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1. Planting the Seed: Charles Sumner and John Quincy Adams

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pp. 5-25

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. ...

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2. The Supreme Court on Private Property and War

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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. ...

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3. Criminal Conspiracy or War?

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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 ...

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4. The Union Applies the Law of War

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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, ...

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5. The Law as a Weapon

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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 ...

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6. Congress Acts and the Confederacy Responds

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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. ...

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7. Military Necessity and Lincoln's Concept of the War

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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 ...

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8. The Proclamation as a Weapon of War

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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. ...

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9. The Conkling Letter

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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 ...

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10. A Radical Recognition of Freedom

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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, ...

Appendix A: First Confiscation Act, August 6, 1861

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pp. 143-144

Appendix B: Browning–Lincoln Correspondence, September 1861

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pp. 145-156

Appendix C: Second Confiscation Act, July 17, 1862

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pp. 157-162

Appendix D: Emancipation Proclamation, First Draft, July 22, 1862

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pp. 163-164

Appendix E: Preliminary Emancipation Proclamation, September 22, 1862

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pp. 165-168

Appendix F: Final Emancipation Proclamation, January 1, 1863

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pp. 169-172


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pp. 173-190


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pp. 191-202

E-ISBN-13: 9780813172736
Print-ISBN-13: 9780813124636

Page Count: 212
Publication Year: 2007