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

Burrus M. Carnahan (Author)

Book Description

Publication Date: September 21, 2007

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.

Editorial Reviews

Review

""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." -- S.J. Ramold, 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." --Vernon Volpe, Civil War Book Review" --

""An important contribution to the literature surrounding this influential document." --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." --James C. Foster, The Law and Politics Book Review" --

""Act of Justice is an important contribution to the literature surrounding this influential document [Emancipation Proclamation]." --Sharon A. Roger Hepburn, Journal of Southern History" --

""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." --Robert Thompson, H-Net Reviews" --

""This book is highly recommended to those interested in the Civil War, slavery, the Emancipation Proclamation and in Abraham Lincoln." --Benet Exton, NewsOK.com, 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 and founding Chair," --

""A worthy addition to academic and large public libraries, especially given current attention to presidential use of war powers." --Margaret Heilbrun, 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." --R. Owen Williams, 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." --Ryan S. Walters, The 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." --The 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." --Jason Emerson, The Historian" --

About the Author

Burrus M. Carnahan is a professorial lecturer at George Washington University Law School. He is also a foreign affairs officer in the U.S. Department of State.

Product Details

• Hardcover: 212 pages
• Publisher: The University Press of Kentucky; First Edition edition (September 21, 2007)
• Language: English
• ISBN-10: 0813124638
• ISBN-13: 978-0813124636
• Product Dimensions: 9.3 x 6.3 x 0.8 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #1,831,559 in Books (See Top 100 in Books)

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3 of 4 people found the following review helpful:

5.0 out of 5 stars A Mighty Act and a Mighty Book, February 10, 2008

By 

Civil War Susan (Arlington, Virginia) - See all my reviews

This review is from: Act of Justice: Lincoln's Emancipation Proclamation and the Law of War (Hardcover)

This book explains how Abraham Lincoln--the greatest flip-flopper in our nation's history--moved from explicitly defending slavery in the South to issuing what's been called "a poor document, but a mighty act," the Emancipation Proclamation.

Even before the Lincoln-Douglas debates, all of Abraham Lincoln's public statements reflected his belief that the Constitution protected slavery. He held that it was legal in the southern states where it already existed and that as President he was bound to protect it. He would act against this only in the case of "indispensable necessity." Eventually, that indispensable necessity arrived.

Not just words, but Lincoln's actions confirmed his commitment not to interfere with slavery. Once the war began, he did not allow attempts by generals in the field to emancipate the slaves in occupied territory. To appease the South, he proposed an amendment to the Constitution that would allow slavery to continue where it already existed. The South did not yield and the war continued. He proposed a plan to compensate slaveholders and relocate former slaves outside the United States. The South did not yield and the war continued.

Lincoln believed the South acted contrary to the Constitution by seceding from the Union and proclaiming themselves a foreign nation. While Lincoln did not recognize secession as legal, the Confederacy was regarded as they would be under international law; flags of truce were honored, and prisoner exchanges were negotiated. Therefore, by complying with their desire to be treated as a separate nation, international law allowed Lincoln to do what the Constitution barred him from doing in time of peace. This enabled him to advance the Emancipation Proclamation as a legitimate war strategy he hoped would unite the country, break the Confederate will, and return it to a new and stronger Union of United States.

It was September 1862 when the "indispensable necessity" of emancipation arrived. When asked where the Constitution gave the President this power, Lincoln asserted that the Constitution invested the President "with the law of war in time of war." Morality justified it, but it was the law of war that legalized Lincoln's "mighty act."

Fast forward to September 2001. Per the author, all presidents since Lincoln's time have, to great controversy, cited the international law of war as a measure and source of their powers as commander-in-chief. He also notes the irony that the same legal theory invoked to free the slaves in 1862 today is used to detain Iraqi war prisoners. Lincoln's was a mighty act, and the author's contribution to our understanding of its importance to Civil War history, as well as its impact on current events, make this a mighty book.