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

Appendix B: Browning–Lincoln Correspondence, September 1861

145 Appendix B Browning–Lincoln Correspondence, September 1861 Quincy, Ills. Sept 17, 1861 Mr President It is in no spirit of fault finding that I say I greatly regret the order modifying Genl Fremonts’ proclamation. That proclamation had the unqualified approval of every true friend of the Government within my knowledge. I do not know of an exception. Rebels and traitors, and all who sympathize with rebellion and treason, and who wish to see the government overthrown, would, of course, denounce it. Its influence was most salutary, and it was accomplishing much good. Its revocation disheartens our friends, and represses their ardor It is true there is no express, written law authorizing it; but war is never carried on, and can never be, in strict accordance with previously adjusted constitutional and legal provisions. Have traitors who are warring upon the constitution and laws, and rejecting all their restraints, any right to invoke their protection? Are they to be at liberty to use every weapon to accomplish the overthrow of the government, and are our hands to be so tied as to prevent the infliction of any injury upon them, or the successful resistance of their assaults? The proclamation also provided that “All persons who shall be taken with arms in their hands within the lines shall be tried by court martial, and if found guilty, shall be shot.” 146 Appendixes I think there is no express statute law authorizing this, and yet, I believe, no body doubts its legality or propriety. It does not conform to the act of Congress passed the 6th of August last, nor was it intended to; and yet it is neither revoked or modified by the order of Sept: 11th. Is a traitors negro more sacred than his life? and is it true that the power which may dispose absolutely of the latter, is impotent to touch the former? I am very sorry the order was made. It has produced a great deal of excitement, and is really filling the hearts of our friends with despondency. It is rumored that Fremont is to be superceded. I hope this is not so. Coming upon the heels of the disapproval of his proclamation it would be a most unfortunate step, and would actually demoralize our cause throughout the North West. He has a very firm hold upon the confidence of the people. You may rely upon what I say to you. You know that I am not in the habit of becoming needlessly excited, and that I have no ends to subserve except such as will advance the good of the country, and promote your own welfare—your fortune, and your fame. I do think measures are sometimes shaped too much with a view to satisfy men of doubtful loyalty, instead of the true friends of the Country. There has been too much tenderness towards traitors and rebels. We must strike them terrible blows, and strike them hard and quick, or the government will go hopelessly to pieces. As ever truly and faithfully Your friend O. H. Browning Washington, Sep. 22. 1861 My dear Sir: Yours of the 17th is just received; and, coming from you, I confess it astonishes me. That you should object to my adhering to a law which you had assisted in making, and presenting to me less than a month before, is odd enough—But this is a very small part—Genl Browning –Lincoln Correspondence 147 Fremont’s proclamation, as to confiscation of property, and the liberation of slaves, is purely political, and not within the range of military law, or necessity. If a commanding General finds a necessity to seize the farm of a private owner, for a pasture, an encampment, or a fortification, he has the right to do so, and to so hold it, as long as the necessity lasts; and this is within military law, because within military necessity—But to say the farm shall no longer belong to the owner, or his heirs forever; and this as well when the farm is not needed for military purposes, as when it is, is purely political, without the savor of military law about it—And the same is true of slaves—If the General needs them, he can seize them and use them; but when the need is past, it is not for him to fix their permanent future condition—That must be settled according to laws...