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

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

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

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


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.


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, prop
erty, 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.

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 . . .

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