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

by Barrus M. Carnahan (The University Press of Kentucky, Louisville, KY, 2007, 202p.) $24.95.

Barrus M. Carnahan is a professional lecturer at George Washington Law School, as well as a foreign affairs officer in the U.S. Department of State. Parts of this, his first book, were previously published in issues of The Lincoln Herald in 2001 and 2006.

The subject matter of this brief work deals with the events and thought processes leading up to the issuance of the Emancipation Proclamation. The President answered some of his critics in a letter sent to James C. Conkling, read at a Grand Union Rally in Springfield, IL on September 3, 1863. Lincoln basically cited the “law of war” and the principle that “property, both of enemies and friends, may be taken when needed.” In the book’s introduction, Carnahan hints at his purpose in responding to Lincoln’s statement: “What was the president trying to communicate when he invoked the ‘law of war’, and what reason did he have to believe that this would satisfy 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? .. 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 property.”

At the very outset of the Civil War, Lincoln was urged by members of his own party to invoke the laws of war and “free” the slaves of the rebels. There was ample precedent for his doing so, including efforts by the Spanish to recruit slaves in North America in the 1740s, Simon Bolivar in South America and the British both in the Revolutionary War and the War of 1812. Basically, you promised freedom to the slaves of your enemy if they would cross lines and fight on your side. There was also a precedent from the Second Seminole War where former slaves who fought with the Seminoles were treated as prisoners-of-war and not sold to or returned to slavery.

In providing context and legal precedents, this book answers much of the criticism directed towards Lincoln regarding the Emancipation Proclamation. This criticism involves Lincoln’s procrastination and the fact that the Proclamation was not legally binding because it dealt with areas not under Union control. As the book progresses, we get a clearer picture of how the Proclamation evolved. Initially, Lincoln hoped that the crisis, like the Whiskey Rebellion during Washington’s presidency, would fizzle out. This was caused by his unrealistic view of popular sentiment in the South. Perhaps the fact that he had no correspondents from that region prevented him from accurately feeling the pulse of public opinion there. In September 1861, he countermanded John Fremont’s emancipation proclamation in Missouri. Yet, it appears that Lincoln had already made up his mind to issue his own proclamation in due course. He corresponded with his Illinois colleague, Orville H. Browning, on the subject and received a fifteen page missive from Browning that enunciated the legal justifications for not only Fremont’s proclamation, but any similar one that might be promulgated later. Lincoln held on to Browning’s letter and even “borrowed” some of his phrases the following year.

Lincoln was concerned with a myriad of issues that impacted his course of action. Keeping the border states within the Union was certainly a key concern. Lincoln had also promised not to interfere with slavery in the states where it was constitutionally permitted. In upholding the standard of “military necessity”, he felt compelled to avoid emancipation until all military options had been played out. This was partly due to his knowledge of legal decisions which, as a lawyer, he was keenly aware of. Roger Taney’s Supreme Court had made one such decision regarding an incident of the Mexican War (Mitchell v. Harmony) which permitted the seizure of private property where “the danger is immediate, and impending; or the necessity urgent for the public service, such as will not admit of delay.” Lincoln did not feel that point had been reached in 1861 and early 1862. Lincoln also felt that his actions should be underpinned by laws enacted by Congress. In 1861 and 1862, Congress passed the First and Second Confiscation Acts. The Confederates responded with a measured response that authorized sequestering of Union owned property held within their territory or under their control. Lincoln knew that an Emancipation Proclamation would not only have to overcome 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 book discusses the international “rule of law”, “natural law”, the military code of conduct and different regulations that were published for the benefit of the military in the United States. In many instances, Union commanders were presented with new situations and demanded guidance from the War Department on how to deal with them. There is also the question of the use of military tribunals or commissions and the suspension of habeas corpus. When did the civil authority defer to the military or executive branch? It deals with the proclamations issued by generals Fremont and Hunter, military matters (prisoner exchanges, treatment of prisoners, flags of truce, letters of marque), etc. We learn that Ben Butler, although he initiated the use of contraband labor to maintain Fortress Monroe, turned away black slaves who tried to enter his lines in Louisiana. In Virginia, he needed their help. In Louisiana, they were just a burden on his men and supplies.

The subject matter of this work is quite focused and limited. The author sticks to the subject and avoids the temptation to bring in tangential or rehashed material. Although somewhat ”dry” in nature, he manages to keep it interesting. Readers should come away with a far-greater understanding of the issues surrounding the Emancipation Proclamation and no doubt see it in a new, insightful light.

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