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

by Burrus M. Carnahan

Overview

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.

Product Details

ISBN-13:	9780813134581
Publisher:	University Press of Kentucky
Publication date:	08/26/2011
Edition description:	Reprint
Pages:	212
Product dimensions:	5.90(w) x 8.90(h) x 0.60(d)
Age Range:	18 Years

About the Author

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

Acknowledgements
Introduction
Planting the Seed
The Supreme Court on Private Property and War: Charles Sumner and John Quincy Adams
Criminal Conspiracy or War?
The Union Applies the Law of War
The Law as a Weapon
Congress Acts and the Confederacy Responds
Military Necessity and Lincoln's Concept of the War
The Proclamation as a Weapon of War
The Conkling Letter
A Radical Recognition of Freedom
Appendix A: First Confiscation Act, August 6, 1861
Appendix B: Browning–Lincoln Correspondence, September 1861
Appendix C: Second Confiscation Act, July 17, 1862
Appendix D: Emancipation Proclamation, First Draft, July 22, 1862
Appendix E: Preliminary Emancipation Proclamation, September 22, 1862
Appendix F: Final Emancipation Proclamation, January 1, 1863
Notes
Index

Editorial Reviews

Act of Justice is a valuable resource for scholars wanting to understand better the historical precedent for military emancipation and its legality under the laws of war.

Ohio Valley History

While this is an academic book, those interested in information on the famous Emancipation Proclamation will enjoy learning how it came about meticulously.

www.curledup.com

The book is short, just 142 pages of main text, but the author included a valuable six-part appendix consisting of important primary materials the reader will find satisfying. Scholars of the Civil War, as well as military history in general, will gain much from Act of Justice.

American Graduate

Carnahan shows us how a president can act audaciously and lawfully, at the same time. His book offers potential lessons for our own time.

Law and Politics Book Review

With the war powers of the President once again under review, it is refreshing and helpful to see these important issues in context. Burrus M. Carnahan's outstanding work does this and more. The author demonstrates the strength and political courage of Abraham Lincoln and his willingness to take major risks

Frank J. Williams

"Carnahan reinforces the idea that Lincoln was bound by the Constitution and the legal demands of due process, and the emancipation of the slaves depended as much upon what the law permitted Lincoln to do as what he wished to do. The result is a clear legal analysis of a president dealing with a shifting political and military landscape, achieving what he could within the bounds of his situation." — Choice

"[Carnahan's] worthy study reminds us of current controversies involving human rights and the usage of presidential power. In that sense his historical foray into international law is quite timely and thought-provoking." — Civil War Book Review

" Act of Justice is an important contribution to the literature surrounding this influential document [Emancipation Proclamation]." — Journal of Southern History

"While this is an academic book, those interested in information on the famous Emancipation Proclamation will enjoy learning how it came about meticulously." — www.curledup.com

"Carnahan shows us how a president can act audaciously and lawfully, at the same time. His book offers potential lessons for our own time." — Law and Politics Book Review

"With excellent use of notes and appendices, Carnahan's study is clear, concise, and compelling. He adds immeasurably to Civil War historiography and Emancipation Proclamation scholarship." — H-Net Reviews

"This book is highly recommended to those interested in the Civil War, slavery, the Emancipation Proclamation and in Abraham Lincoln." — Oklahoman

"Carnahan's patient re-creation of the legal context of the proclamation, and Lincoln's legal craft in composing it, deal a powerful blow to the hit-and-run dismissals of Lincoln as a 'racist' and a 'half-heart' who was 'forced into glory. The more we learn, through Carnahan, of the nineteenth century's 'laws of war' and Lincoln's radical prudence in interpreting them, the greater Lincoln stands as a presidential commander-in-chief and an Emancipator.... An important contribution to the literature surrounding this influential document." — Allen C. Guelzo, Gettysburg College

"With the war powers of the President once again under review, it is refreshing and helpful to see these important issues in context. Burrus M. Carnahan's outstanding work does this and more. The author demonstrates the strength and political courage of Abraham Lincoln and his willingness to take major risks" — Frank J. Williams, Chief Justice, Rhode Island Supreme Court

"A worthy addition to academic and large public libraries, especially given current attention to presidential use of war powers." — Library Journal

" Act of Justice is a valuable resource for scholars wanting to understand better the historical precedent for military emancipation and its legality under the laws of war." — Ohio Valley History

"The book is short, just 142 pages of main text, but the author included a valuable six-part appendix consisting of important primary materials the reader will find satisfying. Scholars of the Civil War, as well as military history in general, will gain much from Act of Justice." — American Graduate

"This fine book demonstrates... that in our day, a great power must wait until a people want freedom before trying to impose it upon them." — Journal of American Cultures

"Carnahan skillfully shows the interaction among developments on the battlefield, principles of constitutional and international law, and political prudence, to demonstrate just how carefully and thoughtfully Lincoln maneuvered toward emancipation." — Lincoln Herald

From the Publisher

Carnahan (lecturer, law, George Washington Univ.) reminds serious readers what was entailed in Lincoln's recourse to the law of war in order to issue the Emancipation Proclamation. He explains the context and limits of Lincoln's implementation and why it was upheld by the courts. Appendixes offer the relevant documents. A worthy addition to academic and large public libraries, especially given current attention to presidential use of war powers.

—Margaret Heilbrun

Library Journal

This book is highly recommended to those interested in the Civil War, slavery, the Emancipation Proclamation and in Abraham Lincoln.

Oklahoman

Act of Justice is an important contribution to the literature surrounding this influential document [Emancipation Proclamation].

Journal of Southern History

Carnahan reinforces the idea that Lincoln was bound by the Constitution and the legal demands of due process, and the emancipation of the slaves depended as much upon what the law permitted Lincoln to do as what he wished to do. The result is a clear legal analysis of a president dealing with a shifting political and military landscape, achieving what he could within the bounds of his situation.

Choice

Carnahan's patient re-creation of the legal context of the proclamation, and Lincoln's legal craft in composing it, deal a powerful blow to the hit-and-run dismissals of Lincoln as a 'racist' and a 'half-heart' who was 'forced into glory. The more we learn, through Carnahan, of the nineteenth century's 'laws of war' and Lincoln's radical prudence in interpreting them, the greater Lincoln stands as a presidential commander-in-chief and an Emancipator.... An important contribution to the literature surrounding this influential document.

Allen C. Guelzo

With excellent use of notes and appendices, Carnahan's study is clear, concise, and compelling. He adds immeasurably to Civil War historiography and Emancipation Proclamation scholarship.

H-Net Reviews

Carnahan skillfully shows the interaction among developments on the battlefield, principles of constitutional and international law, and political prudence, to demonstrate just how carefully and thoughtfully Lincoln maneuvered toward emancipation.

Lincoln Herald

Carnahan has taken the creation, context, and impact of the Proclamation to new depths of analysis, utilizing primary and secondary sources, while simultaneously creating an interesting and highly readable book. It is a work that demands its readers to consider their previous notions of how and why Lincoln issued the Proclamation, and establishes itself as a major contribution to the study of Lincoln and Civil War historiography.

Historian

[Carnahan's] worthy study reminds us of current controversies involving human rights and the usage of presidential power. In that sense his historical foray into international law is quite timely and thought-provoking.

Civil War Book Review

This fine book demonstrates... that in our day, a great power must wait until a people want freedom before trying to impose it upon them.

Journal of American Cultures