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93 7 Military Necessity and Lincoln’s Concept of the War 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 overcome not only the political and legal qualms of conservative politicians, but also the financial interests of businessmen and investors with sequestered property subject to Confederate forfeiture proceedings. The military necessity for emancipation would also have to be strong enough to have at least a chance of withstanding judicial scrutiny . As a lawyer, the president knew that any emancipation policy he ordered the army to adopt would eventually be reviewed in court and that, if the courts held the policy to be illegal, the Federal officers who enforced it could be held personally liable to reimburse aggrieved slaveholders for the loss of their property. Roger Taney, author of the Dred Scott decision, was still chief justice of the United States, and a majority of his Supreme Court were Southerners who would not be inclined to look with favor on a presidential attempt to interfere with slavery. They might, however, grudgingly respect a presidential finding of military necessity under the law of war. In the case of Luther v. Borden, Taney had accepted that the law of war applied to the Rhode Island governor’s suppression of a rebellion within that state, while 94 Act of Justice warning that “no more force . . . can be used than is necessary to accomplish ” that objective.1 The correspondence between the president and Senator Browning had identified two possible foundations for a finding of military necessity— weakening the Confederate war effort or strengthening that of the Union. These ideas were consistent with President Lincoln’s own view of the war as primarily a problem of physics and geometry, requiring the application of superior force at the correct places in order for the North to prevail. Lincoln’s mind was naturally drawn to this kind of quantitative and geometrical analysis. A surveyor before he turned to the law, in later life he studied Euclid’s Geometry for pleasure. When most Americans reflected on Niagara Falls, they thought of the beauty of the scene and of the awe it inspired. Lincoln, unromantically, focused on calculating the physical power that the mass of water passing over the Falls represented, and how those calculations could be used to estimate the age of the Falls and to comprehend the power of the sun to evaporate and lift into the sky the tons of water that poured over them.2 President Lincoln first expressed his “general idea of the war” as an engineering problem to be solved by the marshaling and correct application of superior physical power in January 1862, in a letter to one of his generals in the West: “I state my general idea of this war to be that we have the greater numbers, and the enemy has the greater facility of concentrating forces upon points of collision; that we must fail, unless we can find some way of making our advantage an overmatch for his; and this can only be done by menacing him with superior forces at different points, at the same time. . . .”3 He stated the concept more succinctly two years later, in reply to a critic of the Emancipation Proclamation and the government’s use of colored troops: “It is not a question of sentiment or taste, but one of physical force, which may be measured, and estimated as horse-power and steam-power are measured and estimated .”4 In a book published in 1890, one of the president’s secretaries, William O. Stoddard, claimed that after the Union defeat at Fredericksburg Lincoln had told him, “if the same battle were to be fought over again, every day, through a week of days, with the same relative results, the army under Lee would be wiped out to its last man, the Army of the Potomac would still be a mighty host [and] the war would be won. . . .”5 There are reasons...

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