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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.
212 pages, Hardcover
First published January 1, 2007
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April 25, 2025
Having just read The Pathfinder and the President: John C. Frémont, Abraham Lincoln, and the Battle for Emancipation, I thought I’d pull out this book, written a couple of decades earlier, for another view on a similar topic. While the newer book examines the path to emancipation with a reader-friendly narrative about the Frémont-Lincoln relationship, this book is an unapologetically meticulous, lawyerly look at the legal rationales for and against emancipation that guided Lincoln as he navigated the early years of the Civil War.
It’s occasionally dry but always insightful, and despite (or maybe because of) its brevity at just 142 pages plus appendices, it’s probably the best book on the subject that I’ve read.
The first couple of chapters go way back in history for a more-than-you-were-probably-bargaining-for deep dive into the international laws of war and the precedent of military emancipation. This establishes Lincoln’s dilemma, as once the war started, some urged him right away to pursue military emancipation of Southern slaves, but he was far more cautious in considering whether doing so could be justified legally. The public, the border states and the courts might object if emancipation was pursued too hastily and haphazardly, an emancipation order might be struck down, and then Union officers might even be held individually financially responsible for the value of the slaves they emancipated.
The pieces all had to fall into place gradually. At first, Lincoln insisted the conflict was an internal rebellion and could not be treated as a war against a foreign foe, which meant the laws of war, and the legal justification for military emancipation, did not apply. Later, after essentially conceding that the laws of war applied to the conflict, Lincoln still could not convincingly argue the “military necessity” of emancipation enough to justify its use. And he hoped persuasion would work, proposing a compensated emancipation plan to encourage slaveholders to free their own slaves and negate the need for military emancipation altogether.
As for Frémont’s untimely emancipation order in Missouri, Carnahan points out just how flawed it was and why Lincoln was justified at that stage in overruling it. Frémont’s order was punitive - Lincoln called it “political” - meant as a punishment for slaveholders’ guerrilla activities in the state, as compared to Lincoln’s eventual proclamation, which was aimed at weakening the Confederacy, not punishing it. There was also no legislative underpinning to Frémont’s order - only the First Confiscation Act was in place at the time, and that stopped far short of granting all slaves their freedom.
Carnahan goes on to offer an interesting theory explaining why Lincoln's initial opposition to military emancipation, and later acceptance of it, was not a hypocritical about-face or a reluctant capitulation to abolitionist pressure. In his well-known correspondence with his friend, Sen. Orville Browning, Browning argued that Lincoln should not have overturned Frémont’s order, and Lincoln responded to explain why he did. Carnahan believes Lincoln was not so much defending his position, as he was prodding Browning into providing an alternative, legally-sound view that could be used to help justify the use of military emancipation. “Browning's ego would not let him disregard the challenge,” Carnahan writes, and the Senator responded with a 15-page legal defense of his position. Carnahan supports his theory by noting that Lincoln later used some of Browning’s own phrasing to defend his Emancipation Proclamation after he issued it.
Ultimately, as Union losses piled up and the war went on with no end in sight, the argument for the military necessity of emancipation became clearer. “The killing would go on, relentlessly, until one side or the other was utterly defeated,” Carnahan writes. And taking the one thing underpinning the Confederacy’s reason for being, and pulling it out from under them, could help ensure their “utter defeat.”
Even then, when Lincoln announced to his Cabinet his plans to issue the Preliminary Emancipation Proclamation, he considered it to be a risk. Some have given credit to Congress for passing the stricter Second Confiscation Act and allowing Lincoln to act. In Carnahan’s interpretation, Lincoln merely “sought to give the impression that he was acting on the authority of… the Second Confiscation Act,” which gave him both political cover and legal justification, as “the Proclamation left the reader with the impression that the president was merely carrying out a recently passed act of Congress.”
Once the Emancipation Proclamation was issued, it was not challenged in court, the border states did not abandon the Union, and the Union did ultimately gain the upper hand militarily. All of this Carnaham cites as justification that Lincoln’s careful approach was correct.
While Carnahan’s explanations are thorough and his arguments convincing, some of them can come across as ex post facto justifications of Lincoln’s every move, as though Lincoln knew exactly how things would turn out, he knew exactly when to make the right decisions at the right time, and we can only fully appreciate his foresight and judgment in retrospect. I agree that he was very careful to ensure that whatever he did would be effective and legally justifiable. But I do have to wonder sometimes if he were to see some of the analysis of his decision-making today, if he wouldn’t say, “you really think that’s what I was thinking? You’re reading way too much into it!”
That said, Carnahan’s arguments do effectively shut down Lincoln critics who argue he was too slow in embracing emancipation, that he needlessly prolonged the war with his delay, that Frémont, Browning and others were right and he was wrong. And Carnahan takes those critics head on in his final chapter. “In the eyes of Lincoln's critics, his delay can only be attributed to racism and a secret sympathy for the institution of slavery,” he writes. But “by waiting until the military necessity for emancipation was palpable and obvious, President Lincoln greatly increased the chances that his Emancipation Proclamation would be upheld by the courts,” and that it would accomplish exactly what emancipation proponents hoped it would.
The book keeps a tight focus on the legal justifications for military emancipation, and doesn’t go on to recount the eradication of slavery, since after all, freeing slaves and eliminating the very institution of slavery were two very different things. The story of the latter is left to other books. But that’s fine, because this book’s brevity and tight focus is its strength. As a very insightful look at a very specific issue, it’s a small book that packs a big punch.
It’s occasionally dry but always insightful, and despite (or maybe because of) its brevity at just 142 pages plus appendices, it’s probably the best book on the subject that I’ve read.
The first couple of chapters go way back in history for a more-than-you-were-probably-bargaining-for deep dive into the international laws of war and the precedent of military emancipation. This establishes Lincoln’s dilemma, as once the war started, some urged him right away to pursue military emancipation of Southern slaves, but he was far more cautious in considering whether doing so could be justified legally. The public, the border states and the courts might object if emancipation was pursued too hastily and haphazardly, an emancipation order might be struck down, and then Union officers might even be held individually financially responsible for the value of the slaves they emancipated.
The pieces all had to fall into place gradually. At first, Lincoln insisted the conflict was an internal rebellion and could not be treated as a war against a foreign foe, which meant the laws of war, and the legal justification for military emancipation, did not apply. Later, after essentially conceding that the laws of war applied to the conflict, Lincoln still could not convincingly argue the “military necessity” of emancipation enough to justify its use. And he hoped persuasion would work, proposing a compensated emancipation plan to encourage slaveholders to free their own slaves and negate the need for military emancipation altogether.
As for Frémont’s untimely emancipation order in Missouri, Carnahan points out just how flawed it was and why Lincoln was justified at that stage in overruling it. Frémont’s order was punitive - Lincoln called it “political” - meant as a punishment for slaveholders’ guerrilla activities in the state, as compared to Lincoln’s eventual proclamation, which was aimed at weakening the Confederacy, not punishing it. There was also no legislative underpinning to Frémont’s order - only the First Confiscation Act was in place at the time, and that stopped far short of granting all slaves their freedom.
Carnahan goes on to offer an interesting theory explaining why Lincoln's initial opposition to military emancipation, and later acceptance of it, was not a hypocritical about-face or a reluctant capitulation to abolitionist pressure. In his well-known correspondence with his friend, Sen. Orville Browning, Browning argued that Lincoln should not have overturned Frémont’s order, and Lincoln responded to explain why he did. Carnahan believes Lincoln was not so much defending his position, as he was prodding Browning into providing an alternative, legally-sound view that could be used to help justify the use of military emancipation. “Browning's ego would not let him disregard the challenge,” Carnahan writes, and the Senator responded with a 15-page legal defense of his position. Carnahan supports his theory by noting that Lincoln later used some of Browning’s own phrasing to defend his Emancipation Proclamation after he issued it.
Ultimately, as Union losses piled up and the war went on with no end in sight, the argument for the military necessity of emancipation became clearer. “The killing would go on, relentlessly, until one side or the other was utterly defeated,” Carnahan writes. And taking the one thing underpinning the Confederacy’s reason for being, and pulling it out from under them, could help ensure their “utter defeat.”
Even then, when Lincoln announced to his Cabinet his plans to issue the Preliminary Emancipation Proclamation, he considered it to be a risk. Some have given credit to Congress for passing the stricter Second Confiscation Act and allowing Lincoln to act. In Carnahan’s interpretation, Lincoln merely “sought to give the impression that he was acting on the authority of… the Second Confiscation Act,” which gave him both political cover and legal justification, as “the Proclamation left the reader with the impression that the president was merely carrying out a recently passed act of Congress.”
Once the Emancipation Proclamation was issued, it was not challenged in court, the border states did not abandon the Union, and the Union did ultimately gain the upper hand militarily. All of this Carnaham cites as justification that Lincoln’s careful approach was correct.
While Carnahan’s explanations are thorough and his arguments convincing, some of them can come across as ex post facto justifications of Lincoln’s every move, as though Lincoln knew exactly how things would turn out, he knew exactly when to make the right decisions at the right time, and we can only fully appreciate his foresight and judgment in retrospect. I agree that he was very careful to ensure that whatever he did would be effective and legally justifiable. But I do have to wonder sometimes if he were to see some of the analysis of his decision-making today, if he wouldn’t say, “you really think that’s what I was thinking? You’re reading way too much into it!”
That said, Carnahan’s arguments do effectively shut down Lincoln critics who argue he was too slow in embracing emancipation, that he needlessly prolonged the war with his delay, that Frémont, Browning and others were right and he was wrong. And Carnahan takes those critics head on in his final chapter. “In the eyes of Lincoln's critics, his delay can only be attributed to racism and a secret sympathy for the institution of slavery,” he writes. But “by waiting until the military necessity for emancipation was palpable and obvious, President Lincoln greatly increased the chances that his Emancipation Proclamation would be upheld by the courts,” and that it would accomplish exactly what emancipation proponents hoped it would.
The book keeps a tight focus on the legal justifications for military emancipation, and doesn’t go on to recount the eradication of slavery, since after all, freeing slaves and eliminating the very institution of slavery were two very different things. The story of the latter is left to other books. But that’s fine, because this book’s brevity and tight focus is its strength. As a very insightful look at a very specific issue, it’s a small book that packs a big punch.
December 14, 2022
A clear and concise work.
Carnahan describes the evolution of Lincoln’s views on emancipation and the related legal questions, and his issuing of the Proclamation (“a poor document but a mighty act”), and how that document affected the course and nature of the Union war effort. Carnahan also examines the legal aspects of the proclamation. Carnahan argues that Lincoln was not a racist and even floats the idea that the proclamation made the goal of liberation an explicit American foreign policy goal both in Lincoln’s time and the future.
Much of the narrative deals with the relationship between American political and judicial controversies, and Carnahan argues that Lincoln was well aware of this, hence the conflict between his own personal views on slavery and his concerns over its legal aspects. The idea of presidential “war powers” was a concept more or less invented by Lincoln as he wrestled with emancipation, although the “law of war” itself did have some precedents. Carnahan then describes the legal context of the proclamation, as well as Francis Lieber and his role in the first US “laws of war.”
A compelling volume, if a bit dry.
Carnahan describes the evolution of Lincoln’s views on emancipation and the related legal questions, and his issuing of the Proclamation (“a poor document but a mighty act”), and how that document affected the course and nature of the Union war effort. Carnahan also examines the legal aspects of the proclamation. Carnahan argues that Lincoln was not a racist and even floats the idea that the proclamation made the goal of liberation an explicit American foreign policy goal both in Lincoln’s time and the future.
Much of the narrative deals with the relationship between American political and judicial controversies, and Carnahan argues that Lincoln was well aware of this, hence the conflict between his own personal views on slavery and his concerns over its legal aspects. The idea of presidential “war powers” was a concept more or less invented by Lincoln as he wrestled with emancipation, although the “law of war” itself did have some precedents. Carnahan then describes the legal context of the proclamation, as well as Francis Lieber and his role in the first US “laws of war.”
A compelling volume, if a bit dry.
May 31, 2013
This is the book that made me become a lawyer!
No seriously...I read it during a class on Abraham Lincoln, and wrote a book review on it (Dr. Riley always had her students do book reviews...I'm convinced that she used them to decide what books to read). The logic and progression that I now recognize as the hallmarks of good legal writing really appealed to me, so I ended up going to law school.
It's a surprisingly interesting read, too. First, did the laws of war apply to the Civil War? Yes, despite Lincoln wishing they didn't. If Lincoln had his way, he would have accorded zero recognition to the Confederacy, but that just wasn't feasible...he ended up having to accord them the rights of belligerents, though he never had to recognize them as independent.
Second, what did the laws of war permit with regard to the emancipation of slaves? Quite a bit, as it turns out. I won't go into details (that's the heart of the book, after all).
No seriously...I read it during a class on Abraham Lincoln, and wrote a book review on it (Dr. Riley always had her students do book reviews...I'm convinced that she used them to decide what books to read). The logic and progression that I now recognize as the hallmarks of good legal writing really appealed to me, so I ended up going to law school.
It's a surprisingly interesting read, too. First, did the laws of war apply to the Civil War? Yes, despite Lincoln wishing they didn't. If Lincoln had his way, he would have accorded zero recognition to the Confederacy, but that just wasn't feasible...he ended up having to accord them the rights of belligerents, though he never had to recognize them as independent.
Second, what did the laws of war permit with regard to the emancipation of slaves? Quite a bit, as it turns out. I won't go into details (that's the heart of the book, after all).
Displaying 1 - 3 of 3 reviews