In his first inaugural address, Abraham Lincoln declared that he had "no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it already existed," and he stated that as President he would "have no lawful right to do so." Yet less than two years later, on January 1, 1863, he issued the final Emancipation Proclamation, recognizing the immediate freedom of slaves held in Confederate territory.
What led him to change his mind? Dr. Carnahan explains how, ironically enough, the policies of Confederate President Jefferson Davis helped Lincoln develop a legal theory to justify the Proclamation. When his critics challenged the constitutional soundness of his action, Lincoln pointed to international laws and usages of war as the legal bases 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. While there were historical precedents for offering freedom to an enemy’s slaves in wartime, Dr. Carnahan demonstrates that Lincoln’s action was more radical than anything that had previously been done.
Even after the Lincoln administration decided to apply the law of war, it was unclear whether state and federal courts would agree. Dr. Carnahan’s conclusion is 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 view that Lincoln's delay in issuing the Emancipation Proclamation was an exercise of political prudence, not a personal reluctance to free the slaves. Dr. Carnahan further asserts 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.
Introduction and Biography:
Burrus (Buzz) M. Carnahan is a Foreign Affairs Officer in the Bureau of International Security and Nonproliferation at the U.S. Department of State and a Professorial Lecturer in Law at the George Washington University in Washington, DC.
Previously, he was a private sector consultant on international arms control issues and is an authority on international law and arms control. Dr. Carnahan served for 20 years as a lawyer in the U.S. Air Force specializing in the law of war. From 1969 to 1989 he served as a Judge Advocate in the U.S. Air Force, specializing in international legal issues. From 1974 to 1978 he was an Associate Professor of Law at the U.S. Air Force Academy. He also participated in several international negotiations on arms control. Dr. Carnahan’s JD degree is from Northwestern University (1969), and he holds an LL.M from the University of Michigan (1974).
Carnahan is the author of Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War and Lincoln on Trial: Southern Civilians and the Law of War. Both books examine the role of law in the American Civil War. He has also penned numerous articles on Abraham Lincoln, international law, and the law of war. Dr. Carnahan was the principal researcher on United States legal practice for the International Committee of the Red Cross study on Customary International Humanitarian Law (Cambridge U. Press, 2005), and he was U.S. correspondent for the Yearbook of International Humanitarian Law.
Additionally, Dr. Carnhan has spoken on Lincoln and his era at the Abraham Lincoln Institute Symposium at the National Archives, the Gettysburg College Civil War Institute, the Filson Historical Society in Louisville, Kentucky, and many other venues. In 2012, Dr. Carnahan was appointed to the Scholarly Advisory Group for President Lincoln’s Cottage at the Soldiers’ Home for a two year term.
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