Act of Justice

This short but excellent book by Burruss Carnahan of the George Washington University Law School is a wonderful exploration of how the Emancipation Proclamation fits into the law of armed conflict as it existed in the middle of the 19th Century. Carnahan also explains why Lincoln relied on the law of war for the proclamation. “The legal context for Lincoln’s decisions differed significantly from that of more recent presidential actions. Today, for example, citizens who want to challenge the constitutionality of a government act typically apply to a Federal court for an injunction, or court order, to prevent Federal officials from carrying out the challenged action. In the nineteenth century, however, injunctions were much less freely used. Both state and Federal courts were reluctant to issue injunctions unless it could clearly be shown that a later suit for money damages would be an inadequate remedy. In Lincoln’s era, the principal way to challenge the legality of an official act was to sue the individual government officers for money damages. This practice, which the United States had inherited from the English common law, meant that if the courts rejected the Emancipation Proclamation, every U.S. Army officer who sheltered a refugee from slavery would be liable to pay aggrieved slave owners the value of their lost property.” [p. 2]

The first chapter of the book traces military emancipation of slaves from the American Revolution onward. This history is both long and compelling, including John Quincy Adams’ reference to South American emancipations that occurred during his tenure as Secretary of State: “During a speech to Congress he cited a case of military emancipation that had occurred while he was secretary of state: ‘Slavery was abolished in Colombia, first by the Spanish General Morillo, and, secondly, by the American General Bolivar. It was abolished by virtue of a military command given at the head of an army, and its abolition continues to be law to this day. It was abolished by the laws of war, and not by … municipal enactments. …’ The incidents to which Adams referred occurred between 1814 and 1816, during the Latin American wars of independence against Spain. King Ferdinand VII sent General Pablo Morillo to present-day Venezuela and Colombia in 1814 in an effort to suppress the movement toward independence. General Morillo initially tried to win the loyalty of the rebellious provinces through leniency to those who were willing to lay down their arms and reaffirm loyalty to the Spanish crown. As part of this policy, Morillo granted freedom to slaves who enlisted in the royal army. By December 1815, Simon Bolivar, one of the primary leaders of the independence movement, had fled to Haiti, where President Alexander Petion provided him with weapons and ammunition and allowed him to recruit Haitian soldiers for a return to South America. In return for this support, the Haitian president made only one request–that Bolivar free all slaves in the countries that he would liberate. In partial compliance with this obligation, after returning to Venezuela in 1816, Bolivar issued his own emancipation proclamation, offering freedom to slaves (and their families) willing to fight for independence.” [pp. 15-16] We also learn this was not uncommon. “Morillo’s and Bolivar’s actions were not unusual, and Adams could have cited other examples from the history of Latin America. Although slavery was not finally abolished in Spanish colonies until the 1880s, Spain had long used emancipation as a weapon against other slaveholding powers. The earliest emancipation proclamation in the Western Hemisphere had been issued by the Spanish government in 1693.” [p. 16]

After tracing the case law on confiscation of private property in the United States, Carnahan tells us Charles Sumner was on solid legal grounds when he told President Lincoln he should act to emancipate the slaves using his war powers. Sumner, Carnahan tells us, was hardly the only one to realize this. Senator Pomeroy of Kansas introduced a bill in July of 1861 calling on the President to emancipate the slaves. Though this bill got nowhere, there were others who also realized this was an opportunity for emancipation. “Even Alexander Stephens, later vice president of the Confederacy, warned the Georgia secession convention that the South risked military emancipation in the event of war with the United States.” [p. 39] In 1861, though, Roger B. Taney, author of the infamous Dred Scott ruling, was still Chief Justice of the Supreme Court of the United States. “It was not at all clear how, in a civil war between Americans, Chief Justice Taney’s Supreme Court would regard the freeing of enemy slaves by the United States. Would such an act be viewed as the lawful taking of enemy property, under the laws of war as declared by Chief Justice Marshall in 1814? Or would it be seen as the unlawful taking of an American citizen’s property, as in Mitchell v. Harmony? If the courts found it to be the latter, then issuing a legally defective emancipation proclamation would not only endanger the newfound freedom of slaves who had sought protection from the U.S. Army; it could also expose individual army officers to successful lawsuits by slaveholders, claiming the value of any slaves permanently lost, or the value of the lost labor of those who were recaptured. Lincoln was forcefully reminded of this in late 1862 when a Kentucky slave owner sued Colonel William Utley of the 22nd Wisconsin Regiment for refusing to return a young slave who had taken refuge in the regiment’s camp. Colonel Utley was then on the horns of a legal dilemma. Although Kentucky law required him to return the refugee to his owner, Congress had amended the army’s Articles of War to prohibit military officers from returning any fugitive slave to his or her master, subject to punishment by a court-martial. When the case was brought to the president’s attention, Lincoln personally appealed to the slave owner to settle the suit and offered him ‘any sum not exceeding five hundred dollars.’ The owner, a prominent lawyer, refused this offer because he wanted to make the point that Utley was legally in the wrong, at least under Kentucky law. He pursued the case after the war and obtained a judgment against Colonel Utley for $908.06 (plus court costs) in 1871, more than five years after slavery had been abolished throughout the United States by constitutional amendment. Two years later, Congress appropriated funds to reimburse Colonel Utley. In 1861 and 1862, however, there was no way President Lincoln could be certain that Congress would reimburse Federal officers in every similar case in the future, particularly if Republicans lost control of either house. In deciding whether and how to issue an emancipation proclamation, Lincoln had to consider not only its political impact in the slave-holding border states, but also the possible financial impact on the officers of his own army if the proclamation was overturned in the courts.” [pp. 39-40]

Carnahan traces the evolution of how the law was applied during the war, through Lincoln’s imposing a blockade on confederate ports to his suspension of the privilege of the writ of habeas corpus, to the Confiscation Acts, and finally to the Emancipation Proclamation. “Critics of Lincoln complained that because of this language [in the E.P.] the final proclamation freed not a single slave. Legal experts argued that, even under the laws of war, neither civilian courts nor military authorities could change the ownership of private property still under enemy control. What the critics, both then and now, have failed to appreciate is that Lincoln was preparing to go beyond dealing with slaves as enemy property. The president would appeal to the Confederacy’s slaves as people.” [p. 114] It did this because “In its final form, the Emancipation Proclamation was based on two of the government’s belligerent rights under the law of war. It relied on the right to seize and destroy enemy property for reasons of military necessity, and on the right to seek allies through promising liberty to an oppressed people. The president had decided ‘to procure an ally’ from the enslaved people of the South months before he accepted Salmon Chase’s suggestion on the wording of the final proclamation. As a military measure, the president saw emancipation primarily as a means of weakening the rebels by withdrawing slave labor from the Confederate economy and adding the labor of newly freed slaves to the Union war effort. This could only be accomplished by persuading Confederate slaves to flee their homes and seek the protection of Union military forces.” [p. 117]

This book is superb, and it fills a gap in emancipation scholarship by explaining how the proclamation fit into the law of warfare and case law of the time. I highly recommend it



  1. Al, question about this topic in regards to the prize cases, referring to excerpts like this:

    “It assumes that where a civil war exists, the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other party. The insurgent may be killed on the battlefield or by the executioner; his property on land may be confiscated under the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is “unconstitutional!!!”

    Is this making a distinction in how property is seized between land/sea? Or is it doing just the opposite and refuting that claim? It sounds like the latter to me.

    I often hear the ridiculous claim that the EP violated due process or that the prize cases were merely clearing the way legally for what was happening at sea. But didn’t cover confiscation on land. My understanding that the confiscation acts and the EP WERE within municipal law. Which is the basis and the whole point of the claim in the first place… What are your thoughts there?

    1. That excerpt is Grier taking on an argument that he shows is wrong right after the excerpt. The Confiscation Acts and the EP were within the war powers of both Congress and the President. The question was, what would be the status of the freed people after the war, when the war powers were no longer in effect? That’s why the 13th Amendment was needed.

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