Act of Justice

Lincoln's Emancipation Proclamation and the Law of War

Burrus M. Carnahan

• Publisher: The University Press of Kentucky
• Year: 2007
• ISBN:
  9780813138213
• Topic: History
• Subtopic: American Civil War History
• Index: History

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.

1

Planting the Seed:
Charles Sumner and
John Quincy Adams

Senator Charles Sumner of Massachusetts hurried to the White House as soon as he learned that the Confederates had fired on Fort Sumter in April 1861. There he urged President Lincoln to use his power as commander in chief of the armed forces under the Constitution to free the slaves in the rebellious states. As commander in chief he could, Sumner argued, use any means necessary to suppress the rebellion. Those means included a proclamation offering freedom to the enemy’s slaves.¹

Sumner’s advice must have been startling to the new president. Lincoln’s law practice in Illinois had not prepared him to deal with questions arising under the international law of war.² Barely a month earlier, Lincoln had publicly reaffirmed in his Inaugural Address that he had “no purpose, directly or indirectly to interfere with the institutions of slavery in the States where it exists,” and that he believed he had no legal right to do so.³ In 1861, most American lawyers would have agreed with Lincoln that the Federal government had no constitutional power to alter or abolish slavery in the states where it already existed.⁴

At about the same time, an old friend and political ally of Lincoln’s from Illinois also started to urge the necessity of emancipation. Three years older than Lincoln, Orville Hickman Browning regarded himself as the president’s superior in both breeding and intelligence. An enthusiastic, if conservative, Republican activist, he had undertaken the task of keeping the president up-to-date on the political climate in his home state, as well as that of offering national policy advice to his supposedly unsophisticated friend.

Browning first hesitantly predicted that the war would have an impact on slavery at the end of a letter dated April 18. After reassuring the new president that “you are adequate to the emergency; [and] that you will meet it as it should be met,” he reported on the state of “public sentiment” in his region; then, in the closing paragraph, he made his prediction: “I think I have a clear perception of the ultimate destiny of the Cotton States. They have invited their doom. They can never be again what they have once been. God is entering into judgment with them. He is dealing with them, and will deal with the colored race there also.”⁵ In a letter drafted at the end of April, Browning spelled out the implications of his prophesy for the Lincoln administration. “The time is not yet, but it will come when it will be necessary for you to march an army into the South, and proclaim freedom to the slaves. When it does come, do it. Dont [sic] hesitate. You are fighting for national life—for your own individual life. God has raised you up for a great work. Go boldly forward in the course his providence points you. Do not look back—do not falter, or he may forsake you.”⁶

Browning and Lincoln were both lawyers and had practiced before the same courts in Illinois. It is therefore curious that, unlike Senator Sumner, Browning did not tell his friend what legal authority he thought the president had to proclaim freedom for the slaves. Browning would address this deficiency later in the year.

Unlike Orville Browning, Senator Charles Sumner had already formed definite ideas about the president’s legal authority to free slaves as commander in chief of the army and navy. These the senator had absorbed from his political mentor, former president, and longtime congressman John Quincy Adams. Adams, in turn, had become familiar with the link between war and emancipation while serving as secretary of state for President James Monroe. At that time, one of the primary diplomatic issues facing the United States was the assertion of American claims for slaves freed by the British Royal Navy during the War of 1812. Most such claims arose from the operations of Royal Navy warships deployed in Chesapeake Bay in 1814 under the command of Admiral George Cockburn.

The admiralty’s orders to Cockburn included explicit instructions on dealing with American slaves. Without inciting a slave insurrection, British forces operating in American waters were to offer sanctuary to refugees from slavery and were authorized to promise them freedom if they defected. British forces were specifically ordered not to forcibly return any refugee to slavery. They were, however, to try to persuade them to join His Majesty’s armed forces. Men who did not enlist were to be taken to British colonies for resettlement, along with women, children, and those otherwise unsuited to military service. On April 2, 1814, Admiral Cockburn issued a proclamation reflecting these orders, and by September he had organized 300 escaped slaves into a unit of “Royal Colonial Marines” serving in the Chesapeake. By the end of the war, 3,600 slaves had fled to the British.⁷

Despite the admiralty’s order not to return fleeing slaves to their American owners, the Treaty of Ghent, which ended the War of 1812, appeared to obligate the government of Great Britain to do just that (or so it could be interpreted). By the winter of 1814–1815, both the British and the American negotiators were eager to end the war as quickly as possible, and their haste is evident in the convoluted wording of several provisions in the treaty. For example, article 1, dealing with captured government and private property, stated that: “All territory, places, and possessions whatsoever taken by either party from the other during the war, . . . shall be restored without delay, and without causing any destruction or carrying away any of the artillery or other public property originally captured in the said forts or places, . . . or any slaves or other private property.”⁸

To his credit, Captain John Lavelle, the British officer in command on the scene, refused to comply with American demands for the return of refugee slaves, and his superiors in the Royal Navy backed him up. Captain Lavelle and Admiral Cockburn interpreted the Treaty of Ghent to require the return only of slaves originally in captured forts or other places, and not those who had fled to the British in accordance with Admiral Cockburn’s proclamation. The refugees were eventually sent to live as free persons in Canada, Bermuda, and the Bahamas, and the resulting dispute between the United States and England introduced Secretary of State John Quincy Adams to the practice of military emancipation.

After protracted negotiations, the two countries agreed to submit the dispute to arbitration by the czar of Russia, who on April 22, 1818, decided that under the terms of the treaty the United States was entitled to compensation for the slaves “carried away” by British forces. At one point during these proceedings, Secretary of State Adams instructed the American minister in St. Petersburg to deny that the British had any general legal right under international law to emancipate the slaves of an enemy in war. Since Adams argued later in his career that such a right did exist, he has been criticized for inconsistency.⁹ This criticism ignores Adams’s duty as secretary of state to formulate the best arguments he could to support the claims of slave-owning American citizens, regardless of his personal views on the international law of military emancipation.

John Quincy Adams succeeded James Monroe as president in 1824. After being defeated for reelection, he ran for the U.S. House of Representatives, where he served as a member of the Massachusetts delegation for more than a decade. There, from 1836 to 1844, Adams waged a personal crusade against a gag rule that prevented the Congress from even considering constituent petitions opposed to slavery. Before 1836, Adams had expressed little concern about the morality of American slavery, and his opposition to the gag rule was initially based on his view that it directly violated the right of petition guaranteed by the First Amendment. The struggle against the gag rule slowly drew him into the antislavery cause.¹⁰

Congressman Adams’s first observations on slavery and the war power did not explicitly assert a military power to emancipate slaves. Rather, he laid the conceptual foundations for such an assertion. On May 18, 1836, a House committee reported three proposed resolutions that would establish the ban on antislavery petitions. The first resolution stated the purported legal basis for the gag: “Resolved, That Congress possesses no constitutional authority to interfere in any way with the institution of slavery in any of the States of this Confederacy [i.e., the United States].” When called upon to vote, Adams announced his intention to argue that the resolution was “false and utterly untrue.” Other congressmen immediately objected that debate was out of order at this point in the proceedings; members were to vote yea or nay, and that was all. Adams sat down, but he would not remain silent for long.¹¹

His chance to return to the issue came on May 26, when the House debated a resolution to authorize relief measures for refugees from the Seminole Indian war. A significant fraction of the hostile Seminoles were of African descent—escaped slaves who had adopted the culture of their Native American hosts. This gave Adams an opening to state his opinions on slavery and the war power.

Sir, in the authority given to Congress by the Constitution of the United States to declare war, all the powers incidental to war are, by necessary implication, conferred upon the government of the United States. Now, the powers incidental to war are derived, not from their internal municipal source [i.e., the Constitution], but from the laws and usages of nations. . . . The war power is limited only by the laws and usages of nations. This power is tremendous; it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of property, and of life. This, sir, is the power which authorizes you to pass the resolution now before you, and no other.¹²

This opinion was also behind his opposition to the earlier resolution declaring that Congress had no authority to interfere with slavery “in any way.” The Federal response to a slave rebellion, for example, would clearly empower the U.S. government to interfere with slavery in the states.

Suppose the case of a servile war, complicated, as to some extent it is even now, with an Indian war; suppose Congress were called to raise armies, to supply money from the whole Union to suppress a servile insurrection: would they have no authority to interfere with the institution of slavery? The issue of a servile war may be disastrous; it may become necessary for the master of the slave to recognize his emancipation by a treaty of peace: can it for an instant be pretended that Congress, in such a contingency, would have no authority to interfere with the institution of slavery, in any way? Why it would be equivalent to saying that Congress have no constitutional authority to make peace. . . . From the instant that your slaveholding states become the theatre of a war, civil, servile, or foreign war, from that instant the war powers of Congress extend to interference with the institution of slavery, in every way by which it can be interfered with.¹³

To the slave states, Adams’s most startling assertion was that the Federal war power was not limited by the Constitution but only the law of nations, or international law. Without specifically mentioning slavery, the text of the Constitution accommodated it thorough such devices as the fugitive slave clause and the grant to slave states of extra representation in the House for three-fifths of their unfree populations; the South relied on the Constitution as the bulwark holding back abolitionist efforts to attack the peculiar institution through the Federal government.

The constitutional reasoning behind Adams’s position was first set out by U.S. Supreme Court justice Joseph Story. In an 1814 judicial opinion arising out of the War of 1812, Story declared of the president that “he must, as an incident of the office, have a right to employ all the usual and customary means acknowledged in war, to carry it [i.e., a declaration of war] into effect.” Furthermore, this “power to carry war into effect gives every incidental power which the law of nations authorizes and approves in a state of war.”¹⁴ Justice Story later expanded this reasoning to include congressional war powers in his book Commentaries on the Constitution of the United States. According to the commentaries, the power to declare war “includes the exercise of all the ordinary rights of belligerents; and Congress may therefore pass suitable laws to enforce them. They may authorize the seizure and condemnation of the property of the enemy within, or without the territory of the United States; and the confiscation of debts due to the enemy.”¹⁵ By this reasoning, when the Constitution granted Congress and the president (as commander in chief of the army, navy, and militia) the power to make war, it must be assumed that the Founders wanted the United States to win its wars. Therefore, the Constitution must have also granted the Federal government all the legitimate powers any potential enemy nation would have had—“all the ordinary rights of belligerents.” What those war-winning rights were could be determined by looking at the crystallized experiences and practices of other war-making governments—the “law of nations.”

According to a standard twentieth-century textbook, “the Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.” These rules and principles are derived from treaties and international custom, the latter in the sense of “a usage felt by those who follow it to be an obligatory one.”¹⁶ Historically, the doctrine of “natural law”—that is, rules of law derived from the application of human reason to the problem of how nations should behave—has also had an important impact on the law of nations.

To our postmodern age, appeals to the law of nations and the law of nature may appear naïve and even cynical. In the political world of the early American Republic, however, these concepts were taken quite seriously. The Declaration of Independence itself had appealed to “unalienable rights” created by the laws of nature to justify the American Revolution. The need for a federal government powerful enough to enforce American obligations under the law of nations was one of the major motivations behind the drafting and adoption of the Constitution in 1787.

For example, in 1784, the Continental Congress set out to establish commercial and diplomatic relations with the kingdoms and republics of Europe. Congress approved a model treaty of commerce and friendship to be used as the basis of negotiations, and sent Thomas Jefferson to join Benjamin Franklin and John Adams in France. These three diplomats were to negotiate treaties of friendship and commerce with as many governments as possible. After two years, it was clear that their mission had failed. Only one treaty, with Frederick the Great of Prussia, had been concluded. Austria, Denmark, Sardinia, the Papal States, Tuscany, Saxony, and Russia expressed no interest in treaty relations with ...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Planting the Seed: Charles Sumner and John Quincy Adams
• 2. The Supreme Court on Private Property and War
• 3. Criminal Conspiracy or War?
• 4. The Union Applies the Law of War
• 5. The Law as a Weapon
• 6. Congress Acts and the Confederacy Responds
• 7. Military Necessity and Lincoln’s Concept of the War
• 8. The Proclamation as a Weapon of War
• 9. The Conkling Letter
• 10. A Radical Recognition of Freedom
• Appendixes
• Notes
• Index