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

Introduction

1 Introduction Introduction Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. —Alexis de Tocqueville, Democracy in America, Book I, Chapter 16 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-inchief with the law of war in time of war.” The most that his critics could say, “if so much,” was that “slaves are property.” “Is there,” he continued, has there ever been—any question that by the law of war, property , both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.1 What was the president trying to communicate when he invoked the “law of war,” and what reason did he have to believe this would satisfy 2 Introduction the critics, or at least some of them? What events led him to use this justification for the proclamation, and what were the legal and policy implications of this choice? This work is an attempt to answer these questions. Although there have been many thoughtful efforts to explore the constitutional context of the Emancipation Proclamation, the rest of the proclamation’s legal context remains largely uncharted territory. Another purpose of this work is to set out this legal context. For most of his life, Abraham Lincoln earned his living by practicing law. He was a general practitioner, whose work ranged from the defense of accused criminals to the defense of property rights. When, as president, Lincoln weighed the issues raised by his most important and controversial exercise of the war powers, the Emancipation Proclamation, he would necessarily have viewed these in light of his practical knowledge of American law. The legal context for Lincoln’s decisions differed significantly from that of more recent presidential actions. Today, for example, citizens who want to challenge the constitutionality of a government act typically apply to a Federal court for an injunction, or court order, to prevent Federal officials from carrying out the challenged action. In the nineteenth century, however, injunctions were much less freely used. Both state and Federal courts were reluctant to issue injunctions unless it could clearly be shown that a later suit for money damages would be an inadequate remedy. In Lincoln’s era, the principal way to challenge the legality of an official act was to sue individual government officers for money damages. This practice, which the United States had inherited from the English common law, meant that if the courts rejected the Emancipation Proclamation, every U.S. Army officer who sheltered a refugee from slavery would be liable to pay aggrieved slave owners the value of their lost property. The consequences of Lincoln’s decision to rely on the law of war as a source of executive power are still with us. All war presidents since his time have invoked the international law of war as a measure and source of their powers as commander in chief of the armed forces. The use of that power has often been controversial. Most recently, following the invasion of Afghanistan, the United States has claimed the right under the law of war to hold enemy combatants indefinitely without criminal charges. Although a deeply divided Supreme Court affirmed this power in 2004 (in the case of Hamdi v. Rumsfeld), the continued detention of Introduction 3 these men at the Guantanamo Naval Base in Cuba has given rise to vehement criticism, especially in Europe. It is perhaps ironic that the same legal theory invoked to deprive hundreds of Guantanamo prisoners of their liberty was used by President Lincoln to free...