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

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 ...

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

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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.

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Editorial Reviews

From the Publisher
"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." —Jason Emerson, The Historian" —
Library Journal

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
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Product Details

  • ISBN-13: 9780813134581
  • Publisher: University Press of Kentucky
  • Publication date: 7/8/2011
  • Edition description: Reprint
  • Pages: 212
  • Product dimensions: 5.90 (w) x 8.90 (h) x 0.60 (d)

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
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Sort by: Showing all of 2 Customer Reviews
  • Anonymous

    Posted January 24, 2008

    Fascinating and Informative

    This book analyses and explains in powerful and thoughtful detail the legal foundation underlying Lincoln's Emancipation Proclamation. The facts and key personalities of the time are presented in depth and with precision. An important book for Civil War historians and Lincoln enthusiasts.

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  • Anonymous

    Posted November 28, 2007

    College Professors Teaching the meaning of Justice, and For Students Who need the Right Answer

    I recommend this this book because it not only clarified what was taught in class, whether the E.P. was constitutional 'even though the E.P. was not Congressional Legislation', but the book also gives the opportunity to understand President Lincoln's intentions, under the conditions in which the president sought best to end slavery, and not make things worst for the Union Army.

    Was this review helpful? Yes  No   Report this review
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