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

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University Press of Kentucky, Sep 21, 2007 - History - 212 pages
In his first inaugural address, Abraham Lincoln declared that as president he would Òhave no lawful rightÓ 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 Òwith the law of war in time of war.Ó 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 prisonersÑpractices 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 LincolnÕs 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, LincolnÕs proclamation anticipated the psychological warfare tactics of the twentieth and twenty-first centuries. CarnahanÕs exploration of the presidentÕs war powers illuminates the origins of early debates about war powers and the Constitution and their link to international law.

From inside the book

Contents

Charles Sumner and John Quincy Adams
5
2 The Supreme Court on Private Property and War
25
3 Criminal Conspiracy or War?
41
4 The Union Applies the Law of War
61
5 The Law as a Weapon
71
6 Congress Acts and the Confederacy Responds
83
7 Military Necessity and Lincolns Concept of the War
93
8 The Proclamation as a Weapon of War
117
Appendix A
143
Appendix B
145
Appendix C
157
Appendix D
163
Appendix E
165
Appendix F
169
Notes
173
Index
191

9 The Conkling Letter
133
10 A Radical Recognition of Freedom
139

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Page 169 - Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people...
Page 125 - This morning, as for some days past, it seems exceedingly probable that this Administration will not be re-elected. Then it will be my duty to so cooperate with the President-elect, as to save the Union between the election and the inauguration ; as he will have secured his election on such ground that he cannot possibly save it afterwards.
Page 159 - ... and all slaves captured from such persons or deserted by them, and coming under the control of the Government of the United States, and all slaves of such persons found on (or being within) any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.
Page 165 - An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate property of rebels, and for other purposes," approved July 17, 1862, and which sections are in the words and figures following: SEC.
Page 169 - Now, therefore, I, ABRAHAM LINCOLN, President of the United States, by virtue of the power in me vested as Commander-in-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and Government of the United States, and as a fit and necessary war measure for suppressing said rebellion...
Page 105 - That it is my purpose, upon the next meeting of Congress, to again recommend the adoption of a practical measure tendering pecuniary aid to the free acceptance or rejection of all...
Page 165 - All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any...
Page 159 - Rebels, and for other purposes," approved July 17, 1862, and which sections are in the words and figures following: Section 9.— And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army, and all slaves captured...
Page 37 - President directs me to say to you that he wishes you to have no conference with General Lee, unless it be for the capitulation of General Lee's army, or on some minor and purely military matter. He instructs me to say that you are not to decide, discuss, or confer upon any political question. Such questions the President holds in his own hands, and will submit them to no military conferences or conventions.
Page 168 - Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit: "That on the first day of January, in the year of our Lord one thousand eight hundred and...

About the author (2007)

Burrus M. Carnahan, a retired Air Force officer, professorial lecturer at George Washington University Law School, and foreign affairs officer in the U.S. Department of State, is the author of Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War.

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