An Interview with Burrus M. Carnahan

An Interview with Burrus M. Carnahan regarding His Book Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War (University Press of Kentucky, 2007)

By Sara Gabbard

Sara Gabbard:  Much has been written about the Emancipation Proclamation and Lincoln’s decision to issue it. How is your book different and what does it add?

Burrus Carnahan: The book explores the international context of Lincoln’s act. Americans think of the Emancipation Proclamation as a unique historical event. It was not. Lincoln’s decree was actually the last great emancipation proclamation in Western military history.

The earliest emancipation proclamation I found in my research was issued by the king of Spain in 1699, following the founding of Charleston, South Carolina, by the British. Spain regarded the northern border of its colony in Florida as extending all the way to southern Virginia. Spanish authorities in Florida therefore regarded the founding of Charleston as an invasion of their territory. While they did not resort to military action, they did retaliate by issuing a decree that any British slaves who made it to Spanish territory would be given their freedom. When this action was reported to Spain, the king ratified and reissued the decision in his own name. The Spanish sent British slaves who escaped to Florida to Fort Mose, north of Saint Augustine. This settlement acted as a buffer between the English and Spanish colonies.

Thereafter, emancipation of the enemy’s slaves was widely used as a weapon in the colonial wars of the eighteenth century, the Napoleonic wars, and the Latin American liberation wars. All the major colonial powers, including Great Britain, France, and Spain, as well as the Latin American leader Simón Bolívar, offered freedom to their enemies’ slaves at one time or another. Most notably, Britain offered freedom to American slaves during both the Revolutionary War and the War of 1812.

By the beginning of the nineteenth century, emancipation proclamations were a common and well-established weapon during armed conflicts in the Western Hemisphere. If the Confederate States of America was what it claimed to be, that is, an independent, sovereign nation at war with another sovereign nation, it had little ground for objecting to Lincoln’s Proclamation. The Confederate answer was to claim that the Emancipation Proclamation was really intended to incite an armed slave rebellion and the massacre of innocent white civilians. Historically, of course, this bloody rebellion never occurred. Enslaved people wanted their freedom, not revenge.

SG:  You stated that “Not until April 1863 did the Federal government issue a formal statement declaring its intention to apply the law of war to Confederate forces.”  Please explain.

BC: Washington and Richmond had very different ideas about the nature of the war they were fighting. The Lincoln administration regarded secession as illegitimate, and the Confederate government as nothing more than a very large and well-organized criminal conspiracy. (Whenever President Lincoln had to publicly identify the enemy, he usually referred to it as the “so-called” Confederate States.) As noted above, the government in Richmond regarded itself as a sovereign nation at war entitled to all the rights and powers international law (also referred to as the “law of nations”) accorded to a state at war. Concerned that it might lend legitimacy to the Confederacy, the Union government was naturally reluctant to treat Confederate soldiers and sailors in accordance with the international laws of war.

The Lincoln administration’s policy collided with reality very quickly. One of the president’s earliest acts was to impose a blockade on the seaports of the South. A blockade was an international legal institution, and its invocation by the United States gave Great Britain and France grounds for declaring their neutrality in the Civil War. This also allowed these European powers to grant a limited recognition of the Confederacy as a “belligerent” in the war. Recognition as a belligerent gave Confederate merchants the right to trade with Britain and France, and access to their harbors by Confederate warships.

As a practical matter, it was physically impossible for the United States to charge all captured Confederate soldiers with treason and bring them to trial. Also, the Northern public wanted to ensure that Union soldiers in the hands of the South would be treated as prisoners of war under international law, and the Confederacy would only do that if their own soldiers were given comparable treatment. By January of 1862, the United States was quietly according Confederate armed forces all the rights of a sovereign belligerent in an international war. However, it was not until April 24, 1863, that the U.S. War Department issued General Orders #100, “Instructions for The Government of Armies of The United States in the Field,” (also known as the “Lieber Code”) formally acknowledging that the Civil War would be fought in accordance with the international laws and customs of war.

If the Confederacy was to be accorded all the rights of an independent nation under the laws of war, then logically it should also be subject to all the internationally lawful methods and means of waging war, including the emancipation of its enslaved people. In a sense, Jefferson Davis’ demand that international law applied in the Civil War backfired with the Emancipation Proclamation.

SG: Did President Lincoln ever refer to the law of war as a legal basis for the Emancipation Proclamation?

BC: The only time Lincoln offered a legal justification for the Proclamation was in his August 26, 1863, public letter to the Illinois politician James C. Conkling. There he expressly referred to the law of war as the basis of the Proclamation. Conkling had invited the president to speak to a mass meeting of “unconditional Union men” to be held at Springfield, Illinois. Unable to travel that far from Washington, the president sent Conkling a letter that dealt with many policy issues raised by the war, including the constitutionality of the Emancipation Proclamation. The pertinent language is the following:

I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there–has there ever been–any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property when they can not [sic] use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.

The letter was frequently reprinted as a Republican campaign document in 1863 and 1864.

SG:  What is the relevance of the Lieber Code to your study?

BC: As noted above, the Lieber Code, or General Orders #100, was the official document in which the United States announced its decision to generally apply the laws and customs of war in its relations with the Confederacy. The Code was developed to provide Army officers with information they would need to implement the policy.

When the Civil War started there were about 16,000 officers and enlisted men in the U.S. Army. By 1864 Lincoln had around a half a million men under arms. Obviously, most of the officers of the expanded wartime army were appointed from civilian life. Professional officers had learned the laws and customs of war from their study of military history and tactics at West Point, and on the job in the war with Mexico. Officers appointed from civil life on the other hand would typically know nothing about the laws and customs of war.

As it happened, Major General Henry Halleck, the commanding general of the Army, was himself an authority on international law, and realized that the Army needed a concise summary of the laws and customs of war for the guidance of officers in the field. For this he turned to another expert in this field, Dr. Francis Lieber of Columbia University.

Dr. Lieber had an interesting background. A native of Prussia, Lieber was old enough to have served in the final campaign of the Napoleonic Wars. Severely wounded at Namur, Belgium, he had been left to die on the battlefield. Persecuted in Prussia due to his democratic political beliefs he fled to England and later the United States. Unable to find academic employment in New England, he accepted a te

aching position at a college in South Carolina, where he taught for three decades, carefully concealing his anti-slavery beliefs. Shortly before the war he accepted a position on the faculty of Columbia College (soon to be Columbia University) in New York. His eldest son remained in South Carolina and was mortally wounded in 1862 while fighting for the Confederacy. His other two sons joined the Union army and one was badly wounded in the Battle of Fort Donelson.

As a combat veteran, a strong Unionist and an enemy of slavery who also had ties to the South, with sons in both armies, Lieber appeared an ideal choice to draft a code of conduct for the Federal army. Appointed to a War Department board for this purpose, Lieber produced a draft codification of the international laws and customs of war. After minor changes by the two generals who were also on the board, and approval by President Lincoln, Lieber’s work was issued by the War Department as General Orders #100, April 24, 1863.

Popularly known as the “Lieber Code,” General Orders #100 covered most issues likely to be encountered by U.S. Army officers in the field, from the treatment of prisoners of war and enemy guerillas to dealing with civilian property. For our purposes, it codified the Emancipation Proclamation as permanent U.S. military policy. It declared slavery to be inconsistent with the law of war, and in any future conflict the U.S. Army would recognize the freedom of enemy slaves. Widely admired in Europe, the Lieber Code remained the Army’s standard guidance on the laws and customs of war into the twentieth century.

SG:  What impact did Brown v. United States have in establishing a precedent for the eventual seizure of slaves?

BC: The 1814 Supreme Court decision in Brown arose from a trivial incident during the War of 1812. Before the War, British merchants had purchased 550 tons of pine lumber in the United States and chartered an American merchant ship to transport it from Savannah, Georgia, to the English port of Plymouth. The lumber was still in the United States when Congress declared war, after which the British owners unloaded the lumber and sold it to Armitz Brown, an American citizen. The local U.S. district attorney sued to have the cargo seized for the U.S. government as enemy property, arguing that the sale to Brown was illegal, and that the cargo, therefore, would still be enemy property. The United States prevailed in the lower court and Brown appealed to the Supreme Court.

The Court’s opinion, by Chief Justice John Marshall, stated that under international law “war gives to the sovereign,” here the United states, “full right to take the persons and confiscate the property of the enemy, wherever found.” In this case, however, the Court found that Congress had not enacted any law giving the federal courts jurisdiction to seize enemy property that was in U.S. territory at the outbreak of the war. The lower court ruling was reversed.

The Court did not address the question whether the contract of sale was void. Also, Chief Justice Marshall made a point of noting that the district attorney had acted on his own authority in bringing the lawsuit, and that President Madison had not authorized the seizure of the cargo. This suggested that the decision might have been different had the president himself ordered the seizure under his war powers.

The Brown case is important here because it established that under U.S. law the government had the right to seize enemy property in war. As Lincoln noted in his letter to James Conkling, even the most conservative men regarded slaves as property (the most extreme proslavery position would be that they were only property, not entitled to be treated as human beings). Enemy property, he then pointed out, could be taken or destroyed. There might be dispute over whether Congress or the president should properly exercise this power, but the federal power itself was clearly established.

It should be pointed out that enemy property included all goods subject to the power of the enemy government. Whether the owner of such property actually supported the enemy government or its war effort was irrelevant. The key was, could the property be used to support the enemy war economy? If yes, then it was subject to seizure or destruction.

SG:  Were the Confiscation Acts in compliance with the Law of War? Were they constitutional?

BC: Yes to both. During the debates in Congress, supporters put forward two arguments for the constitutionality of the 1861 and 1862 Confiscation Acts. First, it was argued that seizure of property and freeing the slaves of disloyal owners were proper punishments for treason. Secondly, it was argued that inhabitants of the Confederacy could be treated as enemy persons under the law of war. If so, their property could be seized under the government’s war powers.

The constitutionality of the Acts came before the Supreme Court in the 1871 case of Page v. United States. Page was the executor of Samuel Miller, a resident of the Confederacy who owned stock in two northern railroads. In 1863 the government successfully filed suit to seize his stock on the basis that it belonged to a “public enemy” who was aiding the Confederate government. After the War, Miller, who had not known about the trial, filed suit to reverse the seizure of his stock. (At some point he died and his executor continued the fight in the Supreme Court.) Miller argued that the Confiscation Acts were intended to punish him for treason and that the trial court should have accorded him the rights of a criminal defendant under the Constitution. In reply, the United States argued that the Acts, and the forfeiture, should be upheld as an exercise of the government’s war powers under the law of nations, where the constitutional rights of criminal defendants did not apply. The Court agreed with the government by a vote of six to three. The dissenting justices agreed with Miller that the Acts were punitive, not an exercise of war powers.

SG:  References to John Quincy Adams are numerous.  Please give an explanation of his role in the development of your history.

BC: With his father, John Adams, John Quincy Adams was one of only two anti-slavery presidents before 1860. After his presidency (1825-29), Adams served as a congressman from Massachusetts from 1831 to his death in 1848. One of his principal issues in Congress was opposition to the “gag rule” imposed on the House of Representatives by the slave states. This required that all citizen petitions related to slavery be permanently tabled and not debated. The argument of the South was that slavery was solely a state issue, of no concern to the federal government, therefore petitions regarding it were outside the jurisdiction of Congress.

Adams countered that, historically, slavery had been intertwined with issues of war and peace, definitely a federal concern. For this proposition he cited the cases of military emancipation by Great Britain, France, and Spain, discussed earlier. In an argument that surely must have led to great gnashing of teeth among his southern colleagues, he observed that if the slave states needed to call upon U.S. military resources to suppress a major slave uprising, the federal government might have to negotiate an armistice that granted freedom to at least some of the rebels.

For purposes of this study, Adams is important for the historical precedents he collected. In 1862 a Massachusetts lawyer named William Whiting drew heavily on Adams’ speeches in writing a long pamphlet called The War Powers of the President and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery. While many learned arguments were published for and against the legality of emancipation, Whiting’s work was the most influential publication in favor, and was admired by Lincoln. Whiting was rewarded by being appointed the first (1862-65) Solicitor for the War Department. Whiting expanded War Powers to a full-length book that went through 43 editions, the last published in 1871.

SG:  Please elaborate on the concept of “Military Necessity” as Lincoln understood it.

BC: The principle of military necessity is still a major source for the law of war. It is important to understand that it does not require true “necessity” to justify a military action. As a practical matter, all that is needed to establish military necessity is a rational relationship between a proposed action and the defeat of the enemy’s armed forces. Also, the proposed action must not violate an established rule of the law of war (e.g., use of poison). That Lincoln had a similarly broad understanding of the concept is suggested by his defense of military emancipation in his 1863 letter to James Conkling.

President Lincoln had read and approved the Lieber Code. If he had been asked for a definition of military necessity, he might have referred to Articles 15 and 16 of the Code:

15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith … regarding agreements entered into … .
16. Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.

President Lincoln’s decisions as commander in chief reflect this understanding of military necessity. He repeatedly warned his generals that they must avoid acting out of revenge or inflicting cruelty for cruelty’s sake.

Burrus M. Carnahan is a Foreign Affairs Officer at the United States Department of State and a Professorial Lecturer in Law at George Washington University.