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.
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.
Table of Contents
Acknowledgments ix Introduction 1 Planting the Seed: Charles Sumner and John Quincy Adams 5 The Supreme Court on Private Property and War 25 Criminal Conspiracy or War? 41 The Union Applies the Law of War 61 The Law as a Weapon 71 Congress Acts and the Confederacy Responds 83 Military Necessity and Lincoln's Concept of the War 93 The Proclamation as a Weapon of War 117 The Conkling Letter 133 A Radical Recognition of Freedom 139 Appendixes First Confiscation Act, August 6, 1861 143 Browning-Lincoln Correspondence, September 1861 145 Second Confiscation Act, July 17, 1862 157 Emancipation Proclamation, First Draft, July 22, 1862 163 Preliminary Emancipation Proclamation, September 22, 1862 165 Final Emancipation Proclamation, January 1, 1863 169 Notes 173 Index 191
