Act of justice: Lincoln's emancipation proclamation and the law of war

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

Volumn , Issue , 2007, Pages 1-202

  Carnahan, Burrus M ^a  

^a NONE

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References (327)

1. Collected Works of Abraham Lincoln (hereafter cited as Collected Works), vol. 6, 406 (R. P. Basler ed. 1953).
2. D. H. Donald, Charles Sumner and the Coming of the Civil War, 388 (1961).
3. In reference to the blockade proclamation, Thaddeus Stevens claimed that Lincoln had said, "I don't know anything about the law of nations." Recollected Words of Abraham Lincoln, 423 (D. Fehrenbacher and V. Fehrenbacher eds. 1996).
4. According to Assistant Attorney General Titian Coffey, Lincoln told Attorney General Edward Bates, "I am not much of a prize lawyer." Reminiscences of Abraham Lincoln by Distinguished Men of His Time, 245 (A. T. Rice ed. 1971 reprint of 1888 ed.). "Prize law" was a part of the law of war that dealt with the capture of enemy vessels at sea.
5. First Inaugural Address, March 4, 1861, Collected Works, vol. 4, 262.
6. "It was a generally accepted axiom of American constitutional law in 1861 that slavery was a domestic institution of the States, and that as a State institution it was outside Federal jurisdiction. " James G. Randall, Constitutional Problems under Lincoln, 343 (rev. ed. 1951).
7. Browning to Lincoln, April 18, 1861, Abraham Lincoln Papers at the Library of Congress, Manuscript Division (Washington, D. C.: American Memory Project, [2000-2002]), on the Library's Internet site at http://memory.loc.gov/ ammem/alhtml/alhome.html.
8. Browning to Lincoln, April 30, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/alhome.html.
9. John K. Mahon, The War of 1812, 312-15 (1991 reprint).
10. John B. Moore, History and Digest of International Arbitrations to Which the United States has been a Party, vol. 1, 351 (1898).
11. Randall, Constitutional Problems under Lincoln, 344 (rev. ed. 1951).
12. Robert V. Remini, John Quincy Adams, 137-41 (2002).
13. William L. Miller, Arguing about Slavery, 206-9 (1996).
14. Quoted in William Whiting, The War Powers of the President, and The Legislative Powers of Congress in Relation to Rebellion, Treason and Slavery, 77 (4th ed. 1863).
15. Brown v. United States, 12 U. S. (8 Cranch) 110, 145 (1814) (Story, J. dissenting);
16. Joseph Story, Commentaries on the Constitution of the United States, ch. XXI, sec. 1172 (1833).
17. J. L. Brierly, The Law of Nations, 1 (6th ed. 1963);
18. Frederick W. Marks, Independence on Trial, 3-15 (1972).
19. See the case of Respublica v. DeLongchamps, 1 U. S. (1 Dallas) 111 (Philadelphia, Pa., Court of Oyer and Terminer, 1784).
20. John S. D. Eisenhower, Agent of Destiny: The Life and Times of General Winfield Scott, 148 (1997).
21. Kenneth W. Porter, The Black Seminoles, 40-43 (1996).
22. Eisenhower, Agent of Destiny, 149-67.
23. Quoted in Porter, The Black Seminoles, 78 (1996).
24. K. Jack Bauer, Zachary Taylor, 86 (paperback ed. 1993);
25. Whiting, The War Powers of the President, 76-77.
26. Miller, Arguing about Slavery, 444-54.
27. Quoted in Whiting, The War Powers of the President, 80.
28. "Decree for the Emancipation of Slaves", June 2, 1816, in El Libertador: Writings of Simon Bolivar, 177 (F. Fornoff trans. 2003).
29. See also Colombia, A Country Study 19 (Federal Research Division, Library of Congress, 1990);
30. John V. Lombardi, Venezuela: The Search for Order, the Dream of Progress, 148-50, 176 (1982);
31. Gerhard Masur, Simon Bolivar, 192-98 (Venezuela, 1816), 275-76 (Columbia, 1819) (2nd ed. 1969).
32. Randall, Constitutional Problems under Lincoln, 375, footnote 6 (1951 reprint).
33. Fort Mose Historical Society Internet site, http://www.oldcity.com/mose/; accessed on February 22, 2000.
34. Darcie Macmahon and Kathleen Deagan, "Legacy of Fort Mose", Archaeology vol. 49, no. 5 (September-October 1996). The site of Fort Mose has been located and excavated by University of Florida archaeologists. In 1994, it was declared a national historic landmark as the first free black community in North America.
35. "Haiti-Toussaint Louverture", on the Library of Congress Internet site at: http://lcweb2.loc.gov/frd/cs/httoc.html#ht0018; accessed February 22, 2000.
36. Sidney Kaplan and Emma Kaplan, The Black Presence in the Era of the American Revolution, 73 (footnote) (rev. ed. 1989).
37. Kirsten Schultz, Tropical Versailles, 173 (paperback ed. 2001).
38. Kaplan and Kaplan, The Black Presence in the Era of the American Revolution, 73-74;
39. Charles Johnson and Patricia Smith, Africans in America: America's Journey through Slavery, 178 (1998).
40. Johnson and Smith, Africans in America, 195;
41. K. Jack Bauer, The Mexican War, 223, 253, 326-35 (1974);
42. Bauer, Zachary Taylor, 212-13 (1985);
43. Eisenhower, Agent of Destiny, 52, 78 (1997).
44. Luther v. Borden, 48 U. S. (7 Howard) 1, 45-46 (1849) (emphasis added).
45. Remini, John Quincy Adams, 153-55 (2002).
46. Arthur Nussbaum, A Concise History of the Law of Nations, 162 (rev. ed. 1954).
47. Moore, History and Digest of International Arbitrations, vol. 1, 351.
48. 12 U. S. (8 Cranch) 109 (1814).
49. Randall, Constitutional Problems under Lincoln, 375, footnote 6 (1951 reprint).
50. 12 U. S. (8 Cranch) 109 (1814).
51. An Act respecting Alien Enemies, July 6, 1798, 1 Stat. 577. This act is still in force, and in its current form appears in Title 50 of the U. S. Code, sections 21-22.
52. 54 U. S. 115 (1851).
53. Doniphan's campaign is described in Bauer, The Mexican War, 151-58 (1974).
54. 54 U. S. at 134.
55. General Order 1, Headquarters, Department of Missouri, January 1, 1862, in War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (hereafter Official Records), series 2, vol. 2, 247, 249.
56. Article 57, General Order 100, War Department, Adjutant General's Office, April 24, 1863, Official Records, series 2, vol. 5, 671.
57. "Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty." Article 154, General Order 100, War Department, Adjutant General's Office, April 24, 1863, Official Records, series 2, vol. 5, 671.
58. See Stanton to Wool, February 26, 1862, Official Records, series 2, vol. 3, 22;
59. Scott to Halleck, February 19, 1862, ibid., 280;
60. Buell to Halleck, February 19, 1862, ibid., 283.
61. Meigs to Cameron, July 12, 1861, Official Records, series 2, vol. 3, 8.
62. For a description of the institutions of parole and exchange, see Gerald J. Prokopowicz, "Word of Honor: The Parole Systems in the Civil War", North and South vol. 6, no. 4, 24 (May 2003).
63. When British forces in South Carolina executed an American prisoner for parole violation during the American Revolution, the incident was regarded as extraordinary on both sides of the Atlantic. Larry G. Bowman, Captured Americans, 101-3 (1976).
64. Napoleon, a ruler not noted for soft treatment of his opponents, ordered that enemy officers caught violating parole would be punished by being treated as enlisted prisoners. Imperial Decree of 4 August 1811 Concerning Prisoners of War and Hostages, in Howard S. Levie, Documents on Prisoners of War, 17 (1979
65. Naval War College International Law Studies vol. 60). In April 1862, Major Lee, the judge advocate of the U. S. Army, expressed doubts that death was appropriate for parole violators except in aggravated circumstances.
66. In the matter of Ebenezer Magoffin, Official Records, series 2, vol. 1, 369-73.
67. George G. Lewis and John Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, 6 (1955, Department of the Army Pamphlet 20-213).
68. See "French National Convention Decree of May 25, 1793, on A Uniform Method for the Exchange of Prisoners", in Levie, Documents on Prisoners of War, 14 (1979).
69. First Article, "Cartel for the Exchange of Prisoners of War between Great Britain and the United States of America", May 12, 1813, in Levie, Documents on Prisoners of War, 18-19.
70. See Joshua Rozenberg, "Prosecution in Britain Would Face Difficulties", Daily Telegraph, July 7, 2003.
71. General Order 1, Headquarters, Department of Missouri, January 1, 1862, Official Records, series 2, vol. 2, 247, 249.
72. General Order 100, War Department, Adjutant General's Office, April 24, 1863, Official Records, series 2, vol. 5, 671.
73. Case of John W. Owen, Official Records, series 2, vol. 1, 406-27.
74. Trial of Colonel Ebenezer Magoffin, February 6-20, 1862, Official Records, series 2, vol. 1, 292 et seq.
75. Official Records, series 2, vol. 1, 255-56.
76. See Douglas Jehl and Michael Gordon, "American Forces Reach Cease-Fire with Terror Group", New York Times, April 29, 2003.
77. At a cabinet meeting on December 10, 1861, for example, Attorney General Bates opposed the negotiation of a general cartel for the exchange of prisoners of war, believing this would accord further recognition to the Confederacy. Inside Lincoln's Cabinet: The Civil War Diaries of Salmon P. Chase, 49 (D. Donald ed. 1954).
78. Telegram from Secretary of War Stanton to Lieutenant General Ulysses S. Grant, March 3, 1865, Collected Works, vol. 8, 330-31.
79. William K. Klingamen, Abraham Lincoln and the Road to Emancipation, 52, 65 (2001).
80. Quoted in Harry Jaffa, A New Birth of Freedom, 215 (2000).
81. "Act to make an additional Article of War", March 13, 1862, 12 Stat. 354.
82. On July 9, 1861, the House of Representatives had adopted a resolution that "in the judgment of this House it is no part of the duty of the soldiers of the United States to capture and return fugitives." Official Records, series 2, vol. 1, 759.
83. In December, Congressman Owen Lovejoy, an Illinois abolitionist, introduced legislation to turn this nonbinding resolution into law by amending the Articles of War. Allen C. Guelzo, Lincoln's Emancipation Proclamation, 64 (2004).
84. Lincoln to George Robertson, November 26, 1862, Collected Works, vol. 5, 512.
85. See Lowell H. Harrison, Lincoln of Kentucky, 233-35 (2000).
86. Farewell Address at Springfield, Illinois, February 11, 1861, Collected Works, vol. 4, 190-91.
87. Special Message to Congress, July 4, 1861, Collected Works, vol. 4, 421, 438-39.
88. Harold Holzer, Washington and Lincoln Portrayed: National Icons in Popular Prints, 173 (1993).
89. Kevin T. Barksdale, "Our Rebellious Neighbors: Virginia Border Counties during Pennsylvania's Whiskey Rebellion", Virginia Magazine of History and Biography, vol. 111, 5, 10 (2003).
90. Proclamation of September 25, 1794, in George Washington: A Collection, 598-99 (W. B. Allen ed. 1988).
91. J. Flexner, George Washington: Anguish and Farewell (1793-1799), 177 (1969).
92. M. Holt, The Rise and Fall of the American Whig Party, 20-23 (1999);
93. Eisenhower, Agent of Destiny, 133-40 (1997);
94. M. Peterson, The Great Triumvirate: Webster, Clay and Calhoun, 212-31 (1987).
95. David H. Donald, Lincoln, 302-3 (1995).
96. For example, Thaddeus Stevens, in Recollected Words of Abraham Lincoln, 423 (Fehrenbacher and Fehrenbacher eds. 1996).
97. Brian R. Dirck, Lincoln and Davis: Imagining America, 1809-1865 (2002).
98. Proclamation Calling Forth Militia and Convening Congress, April 15, 1861, Collected Works, vol. 4, 331-32.
99. Isham G. Harris to Simon Cameron, April 17, 1861, Official Records, series 3, vol. 1, 81.
100. Isham G. Harris to Lincoln, April 29, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/alhome.html.
101. Lincoln to Isham G. Harris, May [1?] 1861, Collected Works, vol. 4, 351. The president's suspicions of Governor Harris were justified. Tennessee seceded and joined the Confederacy under Harris's leadership, and Harris fled the state when Nashville was occupied by U. S. forces in early 1862. He was serving as an aide to Confederate general Albert Sidney Johnson when the latter was killed at the battle of Shiloh.
102. 54 U. S. at 134.
103. See Dean B. Mahin, One War at a Time, 50-52 (1999).
104. Title 18, U. S. Code, section 1651. The Supreme Court upheld the constitutionality of so defining piracy in United States v. Smith, 5 Wheaton 153 (1820).
105. David J. Eicher, The Longest Night, 54 (2001)
106. Scott S. Sheads and Daniel C. Toomey, Baltimore during the Civil War, 23, 35 (1997).
107. To the Commanding General of the Army of the United States, April 27, 1861, Official Records, series 2, vol. 2, 19, 20.
108. Ex parte Merryman, 17 Fed. Cas. 144 (Circuit Court, District of Maryland, 1861) (Case No. 9, 487).
109. Luther v. Borden, 48 U. S. (7 Howard) 1, 45-46 (1849).
110. Special Message to Congress, July 4, 1861, Collected Works, vol. 4, 421.
111. See, for example, the case of The Justices v. Murray, 76 U. S. 658 (1870).
112. Edward Bates to the president, July 5, 1861, Official Records, series 2, vol. 2, 20 et seq.
113. Winfield Scott to Lieutenant Colonel Martin Burke, August 2, 1861, Official Records, series 2, vol. 1, 636.
114. See Mark E. Neely, The Fate of Liberty, 137 (1991).
115. William Cranston to William H. Seward, August 26, 1861, Official Records, series 2, vol. 2, 48;
116. Seward to Cranston, August 31, ibid., 49.
117. Seward to John S. Keyes, September 23, 1861, Official Records, series 2, vol. 2, 75.
118. Assistant Adjutant General E. D. Townsend to Colonel Henry L. Scott, August 26, 1861
119. and Henry L. Scott to Lieutenant Colonel Charles F. Smith, August 27, 1861, Official Records, series 2, vol. 2, 48.
120. Lincoln, Presidential Order, July 31, 1861, Official Records, series 2 vol. 2, 37.
121. Carr to Cameron, September 3, 1861;
122. Cameron to Carr, September 3, 1861, Official Records, series 2, vol. 2, 54.
123. John A. Kennedy to Seward, September 14, 1861, Official Records, series 2, vol. 2, 496.
124. Carr to Cameron, September 11, 1861, Official Records, series 2, vol. 2, 60.
125. Memoranda of Various Political Arrests, Official Records, series 2, vol. 2, 302.
126. Nathan Hubbell to Lincoln, September 21, 1861, Official Records, series 2, vol. 2, 73.
127. McClellan to Buell, November 12, 1861, Official Records, series 2, vol. 2, 136.
128. General Sherman to General Ward, November 27, 1861, Official Records, series 2, vol. 2, 125-26.
129. D. C. Buell to L. Thomas, December 5, 1861, Official Records, series 2, vol. 2, 170.
130. Edward S. Bates to the secretary of war, December 30, 1861, Official Records, series 2, vol. 2, 182.
131. Assistant Adjutant General Williams to Colonel Bowen, May 18, 1861, Official Records, series 2, vol. 3, 1;
132. Assistant Adjutant General Fry to Mr. Johnson, June 27, 1861, Official Records, series 2, vol. 2, 12.
133. McClellan to Scott, June 28, 1861, Official Records, series 2, vol. 2, 14.
134. McClellan to Townsend, July 13, 1861, Official Records, series 2, vol. 3, 9.
135. Meigs to Cameron, July 12, 1861, Official Records, series 2, vol. 3, 8.
136. Special Order 284, War Department, Washington, October 23, 1861, Official Records, series 2, vol. 3, 121.
137. General Scott to General McClellan, July 14, 1861, Official Records, series 2, vol. 3, 9-11.
138. Governor Dennison to Secretary Cameron, August 7 and 14, 1864, Official Records, series 2, vol. 2, 39, 42.
139. General Scott to Lieutenant Colonel Burke, July 19, 1861, Official Records, series 2, vol. 2, 32.
140. General Scott to Dimick, October 19, 1861, Official Records, series 2, vol. 2, 110-11;
141. Seward to Keyes, November 13, 1861, Official Records, series 2, vol. 2, 137.
142. Proclamation of a Blockade, April 19, 1861, Collected Works, vol. 4, 338-39.
143. Flag Officer Stringham to Secretary of the Navy Welles, June 6, 1861, Official Records, series 2, vol. 3, 1-2.
144. Davis to Lincoln, July 6, 1861, Official Records, series 2, vol. 3, 5-6.
145. Testimony of Charles W. Page, United States v. William Smith, October 22, 1861 (U. S. District Court for the Eastern District of Pa.)
146. Official Records, series 2, vol. 3, 58, 69.
147. Colonel Cogswell to General Thomas, November 11, 1861, Official Records, series 2, vol. 3, 130-31.
148. General Wool to Adjutant General Thomas, January 24, 1862, Official Records, series 2, vol. 3, 212.
149. General Huger, C. S. Army, to General Wool, U. S. Army, January 27, 1862, Official Records, series 2, vol. 3, 217.
150. Seward to U. S. marshals, January 31, 1862, Official Records, series 2, vol. 3, 229;
151. General Wool to General Huger, February 10, 1862, ibid., 250.
152. Seward to the president, August 2, 1861, Official Records, series 2, vol. 2, 37;
153. General Dix to General Wool, August 22, 1861, ibid., vol. 3, 27-28.
154. Inside Lincoln's Cabinet, 49 (Donald ed. 1954).
155. General Grant to General Polk, October 14, 1861, Official Records, series 2, vol. 1, 511.
156. General Smith to General Pillow, November 26, 1861, Official Records, series 2, vol. 1, 523.
157. See, for example, Adjutant General Thomas to General Wool, November 29, 1861, Official Records, series 2, vol. 3, 148.
158. See, for example, Special Order 170, Headquarters, U. S. Army, October 12, 1861, Official Records, series 2, vol. 3, 51-52 (57 Confederate prisoners to be released following Confederate release of 57 U. S. prisoners).
159. Governor Sprague (R. I.) to Lincoln, October 3, 1861;
160. Governor Andrew (Mass.) to Lincoln, November 25, 1861, both in Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/ alhome.html;
161. Inside Lincoln's Cabinet, 49 (Donald ed. 1954).
162. Joint Resolution adopted by the House of Representatives, December 11, 1861, Official Records, series 2, vol. 3, 157.
163. General Huger to Colonel Dimick, January 20, 1862, Official Records, series 2, vol. 3, 199.
164. General Wool to Adjutant General Thomas, January 24, 1861, Official Records, series 2, vol. 3, 212.
165. Stanton to General Wool, February 11, 1862, Official Records, series 2, vol. 3, 254.
166. Official Records, series 2, vol. 3, 302-8.
167. Stanton to General Wool, February 26, 1862, Official Records, series 2, vol. 3, 322.
168. General Cobb to General Wool, February 28, 1862, Official Records, series 2, vol. 3, 338, 339.
169. General Pope to Colonel Hurlbut, August 17, 1861, Official Records, series 2, vol. 1, 212.
170. Proclamation, Headquarters, Department of the West, August 30, 1861, Official Records, series 2, vol. 1, 221.
171. Allan Nevins, Fremont: Pathmarker of the West, 499-500 (1992 reprint of 1955 ed.).
172. General Fremont to Colonel Taylor, September 14, 1861, Official Records, series 2, vol. 1, 226.
173. See, for example, General Halleck to General Pope, December 31, 1861, series 2, vol. 1, 242.
174. Proclamation, Headquarters, Western Department, August 30, 1861, Official Records, series 2, vol. 1, 221.
175. See, for example, Joshua F. Speed to Lincoln, September 3, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/ malhome.html;
176. telegram from Robert Anderson to Lincoln, September 13, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/ malhome.html. General Robert Anderson, the hero of Fort Sumter, was a native Kentuckian who had been ordered to the Midwest to rally pro-Union Kentuckians to support the administration.
177. Lincoln to General Fremont, September 11, 1861, Collected Works, vol. 4, 517.
178. David H. Donald, "We Are Lincoln Men", 103-7 (2003).
179. Browning to Lincoln, September 17, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html, accessed July 10, 2004.
180. Lincoln to Browning, September 22, 1861, Collected Works, vol. 4, 531 (emphasis in original).
181. Donald, "We Are Lincoln Men", 127.
182. Guelzo, Lincoln's Emancipation Proclamation, 52 (2004).
183. "The Heroic Age in Washington" [lecture, 1871], in At Lincoln's Side: John Hay's Civil War Correspondence and Selected Writings, 113, 127 (M. Burlingame ed. 2000).
184. J. G. Holland, Life of Abraham Lincoln, 392 (1866).
185. Annual Message to Congress, December 8, 1863, Collected Works, vol. 7, 36, 49.
186. Browning to Lincoln, April 30, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html, accessed July 11, 2004. Shortly after the firing on Fort Sumter on April 12, 1861, Senator Sumner advised the president that under the war power he could emancipate slaves.
187. Donald, Charles Sumner and the Coming of the Civil War, 388 (1961).
188. Erastus Wright to Lincoln, September 20, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html, accessed December 7, 2004.
189. "Emancipation Our Best Weapon", October 1, 1861, in The Works of Charles Sumner, vol. 6, 7 (Boston, 1880).
190. Donald, "We Are Lincoln Men", 106-8 (2003).
191. Browning to Lincoln, September 30, 1861, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html, accessed July 12, 2004.
192. Nussbaum, A Concise History of the Law of Nations, 161-63 (rev. ed. 1954). In 1861, Vattel was far more likely than Burlamaqui to be available in Quincy, Illinois.
193. See Burrus M. Carnahan, "Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity", American Journal of International Law, vol. 92, 213 (1998).
194. See General Order 30, Headquarters, Department of the Missouri, April 22, 1863, Official Records, series 1, vol. 22, part 2, 237, 241-42.
195. McClellan to Buell, November 12, 1861, Official Records, series 2, vol. 2, 136.
196. Lincoln to General Fremont, September 2, 1861, Collected Works, vol. 4, 506.
197. E. J. Allen to Provost-Marshal Porter, January 13, 1862, Official Records, series 2, vol. 2, 1289. "E. J. Allen" was Pinkerton's pseudonym while serving as chief of intelligence for McClellan.
198. Headquarters, Army of the Potomac, to Provost-Marshal Porter, January 30, 1862, Official Records, series 2, vol. 2, 1292.
199. Secretary Stanton to General Halleck, April 5, 1862, Official Records, series 2, vol. 1, 276.
200. Adjutant General Thomas to General Fremont, April 9, 1862, Official Records, series 2, vol. 2, 283.
201. General Butler to General Scott, May 25, 1861, Official Records, series 1, vol. 2, 648-51.
202. General Scott to Simon Cameron, ibid., 652.
203. Simon Cameron to General Butler, May 30, 1861, Official Records, series 2, vol. 1, 754-55.
204. Harper's Weekly, June 15, 1861, 371.
205. Simon Cameron to General Thomas, October 14, 1861, Official Records, series 1, vol. 6, 176-77.
206. Butler may have first publicly used the term "contraband" in a letter written from Fortress Monroe on July 30, 1861. See The Works of Charles Sumner, vol. 6, 32 (Boston, 1880).
207. "Act to Confiscate Property used for Insurrectionary Purposes", August 6, 1861, 12 Stat. 319.
208. Guelzo, Lincoln's Emancipation Proclamation, 38-41 (2004).
209. Donald, Lincoln, 343 (1995);
210. Recollected Words of Abraham Lincoln, 64 (Fehrenbacher and Fehrenbacher eds. 1996). In April 1862, Lincoln reportedly gave such assurances to a group of delegates of freedmen's associations. Ibid., 9. The Fehrenbachers believe that there is "above average" reason to doubt this latter report.
211. Guelzo, Lincoln's Emancipation Proclamation, 41-42 (2004).
212. Act of August 2, 1861, 12 Stat. 285.
213. Harrison, Lincoln of Kentucky, 243-44 (2000).
214. General Order 12, Department of Western Virginia, February 17, 1862, Official Records, series 2, vol. 3, 274.
215. Journal of the Confederate Congress, vol. 1, 370 (U. S. Government Printing Office, 1905).
216. 48 U. S. (7 Howard) 1, 46 (1849) (emphasis added).
217. See "Fragment: Niagara Falls" ca. September 1848, Collected Works, vol. 2, 10.
218. Lincoln to General Buell, January 13, 1862, Collected Works, vol. 5, 98.
219. Lincoln to Charles D. Robinson (draft), August 17, 1864, Collected Works, vol. 7, 499, 500.
220. Recollected Words of Abraham Lincoln, 426 (Fehrenbacher and Fehrenbacher eds. 1996). The editors give Stoddard's statement a ranking of "D", reflecting their judgment that it is a quotation "about whose authenticity there is more than average doubt."
221. McCulloch v. Maryland, 4 Wheaton 316, 421 (1819).
222. "Opinion on the Constitutionality of a National Bank", February 15, 1791, in Thomas Jefferson: Writings, 416, 419 (Library of America, 1984).
223. Recollected Words of Abraham Lincoln, 469, 471 (Fehrenbacher and Fehrenbacher eds. 1996).
224. Phillip S. Paludan, The Presidency of Abraham Lincoln, 128-29 (1994).
225. Lincoln to Seward, June 28, 1862, Collected Works, vol. 5, 291-92.
226. See Hunter to Stanton, March 27, 1862, Official Records, series 1, vol. 6, 254;
227. Hunter to Stanton, April 22, 1862, Official Records, series 1, vol. 14, 337;
228. Edward A. Miller, Lincoln's Abolitionist General, 96-97 (1997).
229. General Order 7, Department of the South, April 13, 1862, Official Records, series 2, vol. 1, 815.
230. Section 1, article 58, "Act for establishing Rules and Articles for the government of the Armies of the United States", April 10, 1806, U. S. Statutes at Large, vol. 2, 359, 364.
231. Miller, Lincoln's Abolitionist General, 98 (1997).
232. War Department to General Thomas, October 14, 1861, Official Records, series 1, vol. 6, 176. Cameron was eventually removed as secretary of war in part because he tried to publish an official report advocating the arming of slaves. This order may have been an early reflection of his thinking on this subject.
233. General Order 11, Headquarters, Department of the South, May 9, 1862, Official Records, series 2, vol. 1, 818.
234. Article 40, General Order 100, War Department, Adjutant General's Office, April 24, 1863, Official Records, series 2, vol. 5, 671;
235. Miller v. United States, 78 U. S. 267, 313 (1870);
236. Semmes v. United States, 91 U. S. 21, 27 (1875).
237. The Antelope, 23 U. S. 66, 120 (1825).
238. Speech at Springfield, Illinois, November 4, 1854, Collected Works, vol. 2, 240, 245.
239. Frank Freidel, Francis Lieber: Nineteenth-Century Liberal, 328 (1968 reprint of 1947 edition).
240. Proclamation, May 19, 1862, Collected Works, vol. 5, 222.
241. Miller, Lincoln's Abolitionist General, 102-3 (1997).
242. Appeal to Border-State Representatives for Compensated Emancipation, July 12, 1862, Collected Works, vol. 5, 317-18.
243. General McClellan to Lincoln, July 7, 1862, in The Civil War Papers of George B. McClellan, 344-45 (Sears ed. 1989).
244. Lincoln to General Buell, January 13, 1862, Collected Works, vol. 5, 98.
245. Recollected Words of Abraham Lincoln, 469 (Fehrenbacher and Fehrenbacher eds. 1996).
246. Inside Lincoln's Cabinet, 95 (Donald ed. 1954)
247. Section 6, "Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes", July 17, 1862, 12 Stat. 589, 591.
248. Guelzo, Lincoln's Emancipation Proclamation, 65-66 (2004).
249. Thomas Ewing to Lincoln, June 2, 1862, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html.
250. See Miller v. United States, 78 U. S. 267, 313 (1870);
251. Semmes v. United States, 91 U. S. 21, 27 (1875).
252. 54 U. S. at 134.
253. Lincoln to Cuthbert Bullitt, July 28, 1862, Collected Works, vol. 5, 344-45.
254. General Halleck to General Saxton, August 25, 1862, Official Records, series 1, vol. 14, 377-78.
255. Lincoln to Chase, September 2, 1863, Collected Works, vol. 6, 428-29.
256. Lincoln to General Reynolds, January 20, 1865, Collected Works, vol. 8, 228-29.
257. Randall, Constitutional Problems under Lincoln, 359 (rev. ed. 1951).
258. "Order Concerning the Confiscation Act", November 13, 1862, Collected Works, vol. 5, 496.
259. General Schofield to Secretary of War Stanton, July 17, 1863, Official Records, series 3, vol. 3, 525;
260. Judge Advocate General Holt to Stanton, Official Records, series 2, vol. 6, 209-10.
261. See also Randall, Constitutional Problems under Lincoln, 361 (rev. ed. 1951).
262. See Special Order 288, Department of the Gulf, August 22, 1862, Official Records, series 2, vol. 4, 418: "Edward Le Beau having in conjunction with Edgar Le Beau against the orders of the commanding general of this department destroyed arms belonging to the Confederate States for the purpose of depriving the United States of the use of the arms and having buried arms for the purpose of depriving the United States of them, are sentenced to confinement on Ship Island for the term of one year. The arms will be confiscated, and the negro boy who gave the information of the concealed arms-George Washington Walker-will be emancipated. The proper act of emancipation will be made out by the provost court for that purpose."
263. See "James C. Welling", in Reminiscences of Abraham Lincoln by Distinguished Men of His Time, 547-48 (1971 reprint of 1888 ed.);
264. Randall, Constitutional Problems under Lincoln, 383-84 (rev. ed. 1951)
265. See Freidel, Francis Lieber, 318-19 (1968 reprint of 1947 ed.);
266. Harold M. Hyman, A More Perfect Union: The Impact of Civil War and Reconstruction on the Constitution, 192-93 (Sentry edition, 1975).
267. "Rights of Sovereignty and Rights of War", speech delivered May 9, 1862, in The Works of Charles Sumner, vol. 7, 9, 44 (Boston, 1874).
268. Vattel, Law of Nations, book III, section 203 (J. Chitty trans. 1852).
269. Salmon P. Chase to Lincoln, December 31, 1862, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html;
270. Charles Sumner to George Livermore, January 6, 1863, in The Selected Letters of Charles Sumner, vol. 2, 139-40 (Palmer ed. 1990).
271. "Act to make an additional Article of War", March 13, 1862, 12 Stat. 354.
272. On July 9, 1861, the House of Representatives had adopted a resolution that "⋯ in the judgment of this House it is no part of the duty of the soldiers of the United States to capture and return fugitives." Official Records, series 2, vol. 1, 759. In December, Congressman Owen Lovejoy, an Illinois abolitionist, introduced legislation to turn this nonbinding resolution into law by amending the Articles of War.
273. Guelzo, Lincoln's Emancipation Proclamation, 64 (2004).
274. General Butler to General Phelps, May 23, 1862, Official Records, series 1, vol. 15, 443.
275. Major Peck to General Phelps, Camp Parapet, La., June 16, 1862, Official Records, series 1, vol. 15, 491.
276. General Phelps to Captain Davis (Butler's adjutant), June 16, 1862, Official Records, series 1, vol. 15, 486-90.
277. Secretary Stanton to General Butler, June 29, 1862, Official Records, series 1, vol. 15, 515-16.
278. Lincoln to Reverdy Johnson, July 26, 1862, Collected Works, vol. 5, 342-43.
279. "Reply to Emancipation Memorial Presented by Chicago Christians of All Denominations", Collected Works, vol. 5, 419-25.
280. See Guelzo, Lincoln's Emancipation Proclamation, 180 (2004).
281. Cf. George Anastaplo, Abraham Lincoln: A Constitutional Biography, 219-20 (1999).
282. Emancipation Proclamation, January 1, 1863, Collected Works, vol. 6, 28-30.
283. See Inside Lincoln's Cabinet, 99-100 (Donald ed. 1954);
284. Guelzo, Lincoln's Emancipation Proclamation, 187 (2004).
285. General Hunter to Secretary Stanton, July 11, 1862, Official Records, series 1, vol. 14, 363.
286. Paludan, The Presidency of Abraham Lincoln, 146 (1994).
287. General Hunter to Secretary Stanton, August 4, 1862, Official Records, series 3, vol. 2, 292.
288. General Hunter to Secretary Stanton, August 10, 1862, Official Records, series 3, vol. 2, 346.
289. General Butler to Secretary Stanton, August 2, 1862, Official Records, series 1, vol. 15, 534.
290. After recruiting black troops had been officially approved, the government offered Phelps a major general's commission to command them, but he refused the offer. "Phelps, John Walcott", in The Twentieth Century Biographical Dictionary of Notable Americans, vol. 8, n. p. (R. Johnson and J. H. Brown eds. 1904).
291. General Halleck to General Saxton, August 25, 1862, Official Records, series 1, vol. 14, 377-78.
292. Lincoln to Johnson, March 27, 1863, Collected Works, vol. 6, 149-50.
293. Lincoln to Hunter, April 1, 1863, Collected Works, vol. 6, 158.
294. Annual Message to Congress, December 8, 1863, Collected Works, vol. 7, 36, 51;
295. Proclamation of Amnesty and Reconstruction, December 8, 1863, Collected Works, vol. 7, 53, 54;
296. Annual Message to Congress, December 6, 1864, Collected Works, vol. 8, 136, 152.
297. Lincoln to Charles D. Robinson, August 17, 1864, Collected Works, vol. 7, 499-501.
298. Memorandum on Probable Failure of Re-Election, August 23, 1864, Collected Works, vol. 7, 514.
299. General Order 111, Confederate States Army, December 23, 1862, Official Records, series 1, vol. 15, 906.
300. Howard Jones, "History and Mythology: The Crisis over British Intervention in the Civil War", in The Union, the Confederacy and the Atlantic Rim, 29, 43-45 (R. May ed. 1995).
301. See Salmon P. Chase to Lincoln, December 31, 1862 (Recommended alterations to the Emancipation Proclamation) and Final Emancipation Proclamation-Preliminary Draft, with suggested changes by William H. Seward, [December 30, 1862], both in Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html.
302. Freidel, Francis Lieber, 318 (1968 reprint of 1947 ed.).
303. "Instructions for the Government of Armies of the United States in the Field", April 24, 1863, in The Laws of Armed Conflicts, 3, 11 (D. Schindler and J. Toman eds. 1981).
304. See General Hitchcock to Secretary Stanton, April 29, 1863, Official Records, series 2, vol. 5, 470;
305. Ware to Brown, April 8, 1863, ibid., 455. Brown and Ware were the military secretary to the governor of Massachusetts and the assistant military secretary, respectively. Hitchcock had personal reasons for distrusting the Confederate leadership, having resigned from the army in 1855 as a result of a dispute with Secretary of War Jefferson Davis.
306. John C. Fredriksen, American Military Leaders, vol. 1, 340-41 (1995).
307. See, for example, the July 1863 correspondence between generals Halleck and Ludlow on the reported hanging of captured black soldiers, Official Records, series 2, vol 6, 73, 289;
308. Charles Sumner to Lincoln, May 20, 1863, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/malhome.html.
309. Order of Retaliation, July 30, 1863, Collected Works, vol. 6, 357;
310. Official Records, series 2, vol. 6, 163.
311. "The persons excepted from the benefits of the foregoing provisions are⋯ all who have engaged in any way in treating colored persons, or white persons in charge of such, otherwise than lawfully as prisoners of war⋯." Proclamation of Amnesty and Reconstruction, December 8, 1863, Official Records, series 2, vol. 6, 681.
312. The text of this order has been lost, but the 1863 annual report of the commissary for exchange to the secretary of war stated that "an order was sent by the President to our commanders in the field not to grant paroles, and to make no exchanges, without orders from the War Department." Hitchcock to Stanton, November 30, 1863, Official Records, series 2, vol. 6, 607-14.
313. Article 16, Convention Relative to the Treatment of Prisoners of War, August 12, 1849, 6 U. S. T. 3316, T. I. A. S. No. 3364.
314. See Guelzo, Lincoln's Emancipation Proclamation, 186-202 (2004).
315. 67 U. S. 635 (1863).
316. See Ronald C. White, The Eloquent President, 197 (2005).
317. Conkling to Lincoln, August 14, 1863, Abraham Lincoln Papers at the Library of Congress, http://memory.loc.gov/ammem/alhtml/alhome.html, accessed July 12, 2004.
318. White, The Eloquent President, 195 (2005).
319. See Donald, Lincoln, 457-58 (1995);
320. Harry J. Maihafer, War of Words, 131-32 (2001).
321. Lincoln to Conkling, August 26, 1863, Collected Works, vol. 6, 406.
322. Burlamaqui, Principles of Politic Law, 281-82 (The Lawbook Exchange, Ltd. 2003 facsimile reprint of the 1752 edition of Nugent's translation).
323. Address at Cooper Institute, New York City, February 27, 1860, Collected Works, vol. 3, 522, 537.
324. "The Emancipation Moment: Lincoln's Other 'First of January, '" Lincoln Lore no. 1880, 2 (spring 2005).
325. See Guelzo, "How Abe Lincoln Lost the Black Vote", Journal of the Abraham Lincoln Association, vol. 25, no. 1, 1-22 (winter 2004);
326. Kevin Fields, "Historiographical Trends and Interpretations of President Abraham Lincoln's Reputation and Morality on the Slavery Question", part 1 in the Lincoln Herald, vol. 106, 150 (winter 2004), part 2 in vol. 107, 11 (spring 2005).
327. Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX) (December 14, 1974), Annex, article 5, paragraph 3.