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Act of JusticeLincoln's Emancipation Proclamation and the Law of War$

Burrus M. Carnahan

Print publication date: 2007

Print ISBN-13: 9780813124636

Published to Kentucky Scholarship Online: September 2011

DOI: 10.5810/kentucky/9780813124636.001.0001

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(p.145) Appendix B Browning–Lincoln Correspondence, September 1861

(p.145) Appendix B Browning–Lincoln Correspondence, September 1861

Act of Justice
University Press of Kentucky

Quincy, Ills. Sept 17, 1861

Mr President

It is in no spirit of fault finding that I say I greatly regret the order modifying Genl Fremonts’ proclamation.

That proclamation had the unqualified approval of every true friend of the Government within my knowledge. I do not know of an exception. Rebels and traitors, and all who sympathize with rebellion and treason, and who wish to see the government overthrown, would, of course, denounce it. Its influence was most salutary, and it was accomplishing much good. Its revocation disheartens our friends, and represses their ardor

It is true there is no express, written law authorizing it; but war is never carried on, and can never be, in strict accordance with previously adjusted constitutional and legal provisions. Have traitors who are warring upon the constitution and laws, and rejecting all their restraints, any right to invoke their protection?

Are they to be at liberty to use every weapon to accomplish the overthrow of the government, and are our hands to be so tied as to prevent the infliction of any injury upon them, or the successful resistance of their assaults?

The proclamation also provided that “All persons who shall be taken with arms in their hands within the lines shall be tried by court martial, and if found guilty, shall be shot.”

(p.146) I think there is no express statute law authorizing this, and yet, I believe, no body doubts its legality or propriety.

It does not conform to the act of Congress passed the 6th of August last, nor was it intended to; and yet it is neither revoked or modified by the order of Sept: 11th.

Is a traitors negro more sacred than his life? and is it true that the power which may dispose absolutely of the latter, is impotent to touch the former?

I am very sorry the order was made. It has produced a great deal of excitement, and is really filling the hearts of our friends with despondency.

It is rumored that Fremont is to be superceded. I hope this is not so. Coming upon the heels of the disapproval of his proclamation it would be a most unfortunate step, and would actually demoralize our cause throughout the North West. He has a very firm hold upon the confidence of the people.

You may rely upon what I say to you. You know that I am not in the habit of becoming needlessly excited, and that I have no ends to subserve except such as will advance the good of the country, and promote your own welfare—your fortune, and your fame.

I do think measures are sometimes shaped too much with a view to satisfy men of doubtful loyalty, instead of the true friends of the Country.

There has been too much tenderness towards traitors and rebels.

We must strike them terrible blows, and strike them hard and quick, or the government will go hopelessly to pieces.

As ever truly and faithfully

Your friend

O. H. Browning

Washington, Sep. 22. 1861

My dear Sir:

Yours of the 17th is just received; and, coming from you, I confess it astonishes me. That you should object to my adhering to a law which you had assisted in making, and presenting to me less than a month before, is odd enough—But this is a very small part—Genl (p.147) Fremont’s proclamation, as to confiscation of property, and the liberation of slaves, is purely political, and not within the range of military law, or necessity. If a commanding General finds a necessity to seize the farm of a private owner, for a pasture, an encampment, or a fortification, he has the right to do so, and to so hold it, as long as the necessity lasts; and this is within military law, because within military necessity—But to say the farm shall no longer belong to the owner, or his heirs forever; and this as well when the farm is not needed for military purposes, as when it is, is purely political, without the savor of military law about it—And the same is true of slaves—If the General needs them, he can seize them and use them; but when the need is past, it is not for him to fix their permanent future condition—That must be settled according to laws made by law-makers, and not by military proclamations—The proclamation, in the point in question, is simply “dictatorship”—It assumes that the General may do anything he pleases—confiscate the lands and free the slaves of loyal people, as well as of disloyal ones—And going the whole figure I have no doubt would be more popular with some thoughtless people, than what has been done! But I can not assume the reckless position; nor allow others to assume it on my responsibility. You speak of it as being the only means of saving the government—On the contrary, it is itself the surrender of the government—Can it be pretended that it is any longer the government of the U. S.—any government of constitution& laws,—wherein a General, or a President may make permanent rules of property by proclamation—

I do not say Congress might not with propriety, pass a law, on the point, just such as Genl. Fremont proclaimed—I do not say I might not, as a member of Congress, vote for it—What I object to, is that I, as President, shall expressly, or impliedly, seize and exercise the permanent legislative functions of the government—

So much as to principle—Now as to policy—No doubt the thing was popular in some quarters, and would have been more so, if it had been a general declaration of emancipation—The Kentucky Legislature would not budge till that proclamation was modified; and Gen. Anderson telegraphed me, that on the news of Gen. Fremont having actually issued deeds of manumission, a whole company of our volunteers, threw down their arms and disbanded—I was so assured, as to think it probable, that the very arms we had furnished Kentucky, would be turned against us—I think to lose Kentucky, is nearly the (p.148) same as to lose the whole game—Kentucky gone, we can not hold Missouri, nor as I think, Maryland—

These all against us, and the job on our hands is too large for us—We would as well consent to separation at once, including the surrender of the capital. On the contrary, if you will give up your restlessness for new positions, and back me manfully on the grounds upon which you & other kind friends gave me the election, and have approved in my public documents, we shall go through triumphantly—

You must not understand I took my course on the proclamation, because of Kentucky—I took the same ground, in a private letter to the General Fremont before I heard from Kentucky—

You think I am inconsistent because I did not also forbid Gen. Fremont to shoot men under the proclamation—

I understand that part to be within military law; but I also think, and so privately wrote Gen. Fremont, that it is impolitic in this, that our adversaries have the power, and will certainly exercise it, to shoot as many of our men as we shoot of theirs—I did not say this in the public letter, because it is a subject I prefer not to discuss in the hearing of our enemies—

There has been no thought of removing Gen. Fremont on any ground connected with his proclamation; and if there has been any wish for his removal on any ground, our mutual friend, Sam. Glover can probably tell you what it was—I hope no real necessity for it exists on any ground—


Your friend as ever, A. Lincoln

Quincy, Illinois Sept 30, 1861

Mr President

Yours of the 22nd instant is before me. Aware of the multitude and magnitude of your engagements, I certainly did not expect a moment of your valuable time to be consumed in replying to any communication of mine; but am, therefore, not the less obliged to you for your very interesting letter.

(p.149) Occasionally, since the beginning of our troubles, I have taken the liberty of writing you, and giving my opinions, valueless as they may be, upon the great questions which agitate the Nation, and which we are bound, however difficult and distressing they may be, in some way or other to solve.

I have also, from time to time, endeavored to give you a true reflection of public sentiment, so far as it was known to me. I have been prompted to this course by a very sincere, and unaffected interest in your individual welfare, fame, and fortune, as well as by a painfully intense anxiety for the maintainance of the Constitution and the Union; the restoration of the just authority of the government, and the triumph of as holy a cause, in my judgment, as ever engaged men’s feelings and enlisted their energies.

I thought that whether the public sentiment here, and my own opinions, accorded with yours or not, you might still be not only willing, but glad to know them. I have, therefore, written to you frankly and candidly, but have, at all times, intended to be both kind and respectful; and regret it deeply if I have failed in either, as some passages in yours lead me to suspect I have. Indeed I fear I have only annoyed you. Nothing, I assure you, has been further from my purpose.

Fully appreciating the difficulties, and embarrassments of your position, I would be as ready and willing to aid and relieve you by any personal sacrifice I could make, as I would be reluctant to add to your labors and harrassments, either by fault finding or solicitations.

I have said many things to you which I have not said to others. Conscious of the great injury our cause would sustain by any weakening of the Confidence of the people in the administration, I have constantly vindicated both its men, and its measures, before the public; and when I have had complaints or suggestions to make, in regard to either, I have made them directly to you.

This, I thought, was demanded alike by the claims of friendship, and of patriotism

I am the partizan of no man. I would not sustain the nearest friend I have on earth in official misconduct, and would accord full praise to my bitterest foe in doing his duty to the Country.

In the conclusion of yours you say “Suppose you write to Hurlbut, and get him to resign.”

I could not tell, for the life of me, whether you were serious, or (p.150) whether you was Poking a little irony at me. If I thought you were in earnest I would certainly do it, as I could with great propriety, having in my possession his written pledge to resign if he drank a drop of liquor after going into the service. He has violated his pledge and behaved badly, and ought to resign.

What I said in regard to Genl. Fremont and his proclamation was in accordance with this feeling. My acquaintance with him is very limited and I have had no personal feeling in the matter.

If he was honestly and faithfully doing his duty, justice to him, and regards for the Country alike required that he should be sustained. There was much complaint and clamor against him, and, as I am not quick to take up evil report, I went twice to St Louis to see, and learn for myself all that I could. It is very probable he has made some mistakes. Most of us do; and he would be more than human if he were altogether exempt from the frailties of our nature: but, in the main, he seemed to be taking his measures wisely and well. Many of the charges against him appeared to me frivolous, and I did not know of any one who could take his position, and do better amid the surrounding difficulties; and was confident that his removal at the time, and under the circumstances, would be very damaging both to the administration, and the cause.

Hence I wrote you as I thought it my duty to do, certainly not intending any impertinent interference with executive affairs, or expecting what I said to have any greater scope than friendly suggestion.

This proclamation, in my opinion, embodies a true, and important principle which the government cannot afford to abandon, and with your permission, and with all deference to your opinions, so clearly expressed, I will venture, hastily to suggest my own views of the legal principles involved; for it is important that the law which governs the case should be certainly and clearly understood; and if you are right I am in very great error, which I ought to correct.

With your construction of the proclamation your reasoning is just, logical and conclusive, but either you have greatly misunderstood it, or I have.

According to my understanding of it, it does not touch the relations between the government and its citizens. It does not undertake to settle the rules of property between citizen and citizen. It does not deal with citizens at all, but with public enemies. It does (p.151) not usurp a legislative function, but only declares a pre-existing law, and announces consequences which that law had already attached to given acts, and which would ensue as well without the proclamation as with it. It was, in fact, only a declaration of intention to live up to the international law settled centuries ago, and which was as much the law without the proclamation as with it. It was neither based upon the act of Congress of Augt. 6 1861, nor in collision with it, but had reference to a totally different class of cases, provided for long ago, by the political law of Nations.

The law of the 6th August acts upon and confiscates property because of the uses to which it is applied, wholly irrespective of the question of the loyalty or dis-loyalty of the owner. The property of a loyal citizen is as effectually forfeited if applied to the forbidden uses, as the property of a rebel, and the property of the traitor, in arms against the government, if not so applied, is as secure under the provisions of the statute as the property of the most loyal and devoted citizen. Rebels and loyalists stand on the same plat-form before the statute, and have an equality of right in no way affected by their friendship or hostility to the government.

Now, how is it with the proclamation?

As before remarked it is not based upon the statute, and has no reference whatever to the class of cases provided for by the Statute. It rests upon the well ascertained, and universally acknowledged principles of international political law as its foundation—upon the laws of war as acknowledged by all civilized Nations, and is in exact harmony with them.

The Confederate States, and all who acknowledge allegiance to the Confederate States, or take part with them, are public enemies. They are at war with the United States. Men taken in battle are held as prisoners; flags of truce pass between the hostile lines; intercourse is forbidden between certain States and parts of States; and sea-ports are formally blockaded.

These things constitute war, and all the rules of war apply, and all belligerent rights attack.

What are these rules and rights?

Burlamaqui says “By a state of war, that of society is abolished; so that whoever declares himself my enemy, gives me liberty to use violence against him in infinitum, or so far as I please &c.”

The rebel States, by making war upon the United States, have (p.152) dissolved the state of society which previously existed between them, and are no longer entitled to invoke the protection of the Constitution and laws which they have repudiated, and are endeavoring to destroy. All their property, both real and personal, is subject, by the law of nations, to be taken, and confiscated, and disposed of absolutely and forever by the belligerent power, without any reference whatever to the laws of society; and that as well without a proclamation to that effect as with it. A proclamation is but declaratory of the pre-existing law, and gives no additional force or effect to the law.

The same author continues

“The state of war, into which the enemy has put himself, and which it was in his own power to prevent, permits of itself every method that can be used against him; so that he has no reason to complain whatever we do.”

“As to the goods of the enemy, it is certain that the state of war permits us to carry them off, to ravage, to spoil, or even entirely to destroy them; for as Cicero very well observes—It is not contrary to the law of nation nature to plunder a person whom we may lawfully kill.”

“This right of spoil, or plunder extends in general to all things belonging to the enemy; and the law of Nations, properly so called, does not exempt even sacred things.”

“In general it certainly is not lawful to plunder for plunder’s sake, but it is just and innocent only, when it bears some relation to the design of the war; that is when an advantage directly accrues from it to ourselves, by appropriating these goods, or at least, when by ravaging and destroying them, we in some measure weaken the enemy.”

Is there any question that the proclamation, carried into practical effect, would tend to our advantage by greatly weakening the enemy and diminishing his ability to carry on the war, and do us injury? This enquiry, however, belongs to the expediency of the measure, which I do not propose at present to discuss, but to confine myself to the question of rightful power and authority to adopt it.

The rules of law above stated declare the rights which war gives us over the effects of the enemy in a solemn war, declared in form between two states always distinct. Do the same principles apply to, and govern a civil war?

If so then the proclamation was not an excess of authority; was not in contravention of law; was not an invasion of any right of those (p.153) to whom it related, and upon whom it acted, of which they could rightfully complain.

I believe civil wars are governed by the same rules which apply to and control what are technically called solemn wars, and that these rules embrace all who take part in the war against the government, whether the state where the hostile act is committed has formally thrown off the authority of the general government or not.

I quote again from Burlamaqui. “Grotius,” says he, “pretends, that the right by which we acquire things taken in war, is so proper and peculiar to a solemn war, declared in form, that it has no force in others, as in civil wars &c., and that in the latter, in particular, there is no change of property, but in virtue of the sentence of a Judge.

We may observe, however, upon this point, that in most civil wars no common judge is acknowledged. If the state is monarchical, the dispute turns either upon the succession to the crown, or upon a considerable part of the states’ pretending that the king has abused his power, in a manner which authorized his subjects to take up arms against him

In the former case, the very nature of the cause for which the war is undertaken, occasions the two parties of the state to form, as it were, two distinct bodies, till they come to agree upon a chief by some treaty. Hence, with respect to the two parties which were at war, it is on such treaty that the right depends, which persons may have to that which was taken on either side; and nothing hinders, but this right may be left on the same footing, and admitted to take place in the same manner, as in public wars between two states always distinct.

The other case, I mean an insurrection of a considerable part of the state against the reigning prince, can rarely happen, except when that prince has given room for it, either by tyranny, or by the violation of the fundamental laws of the kingdom.

Thus, the government is then dissolved, and the state is actually divided into two distinct and independent bodies; so that we are to form here the same judgment as in the former case.

For much stronger reasons does this take place in the Civil wars of a Republican state; in which the war, immediately of itself, destroys the sovereignty, which subsists solely in the union of its members.”

It thus appears that when a state is actually divided into two distinct, and independent bodies, warring upon each other, they have no more right, as between each other, to claim the protection of the (p.154) Constitution and laws of the former government, than the citizens of a foreign state, at war with us would have a right to claim such protection.

The laws of civil society, that is, municipal laws and constitutions, as regulating intercourse between the parties, and determining their mutual and relative rights are dissolved, and the only rights which can be insisted upon are belligerent rights; and one of these is the right to take, confiscate and appropriate, or dispose of as we please, absolutely and forever, all the property, of every kind and character belonging to the enemy collectively and individually.

Now, the proclamation only declares, and, I think truly, the law as to one of our belligerent rights—“The property, real and personal, of all persons in the State of Missouri, who shall take up arms against the United States, or who shall be directly proven to have taken active part with their enemies in the field, is declared to be confiscated to the public use, and their slaves, if any they have, are hereby declared freemen.”

It deals with public enemies only. It is, in terms, limited to those who are warring upon the government; and as to them it, in no sense, and to no extent, modifies the pre-existing law. It does not touch the loyal citizen or his rights of person or property, or at all intermeddle with the relations between him and his government or fix, or attempt to fix rules of property between the citizen and his government or between citizen and citizen. It is as limited in the class of persons upon whom it was to operate to public enemies, and was further territorially limited to the State of Missouri, and had no more application to or operation in Kentucky than in Australia.

I do not think it was an act of usurpation. I do not think it has in it any of the elements of dictatorship. I do think it was fully warranted by the laws of war, and in entire harmony with all the principles of international political law. I do further think that it is a high, important, and very valuable power which the government ought not to surrender, and without the exercise of which this war can never be brought to a successful termination. I do not speak this in reference to slaves alone, but to all property. Can the war be prosecuted upon the understanding that all the property captured from the enemy is to be held for restoration to former owners when the war is over?

If a general, in the progress of the war needs the horses of a loyal citizen for public use he may take them, but must make compensation (p.155) for them, or restore them when the necessity has passed, making compensation for their use. But if he captures horses from those in arms against the government—from public enemies—are they not at his absolute disposal? May he not destroy them, sell them, or turn them loose upon the desert, according to the exigencies of the case, without accountability to any body? And if he may turn loose horses why may he not negroes? They both stand to us in the relation of property of the enemy, which we may lawfully take either to weaken him, or to strengthen ourselves. And if we have no right or power to take the negro, neither have we right or power to touch or take any other description of property belonging to our enemies. The consequence will be that while they act upon the laws of war and plunder us, and confiscate all our property, and cripple and weaken us, our hands are so tied as to disable us from touching any thing that is theirs.

If the proclamation had been limited to a confiscation of the horses and cattle of those in arms against the government and making war upon it for its overthrow, would the people of Kentucky, or any other State have objected, or would anyone have supposed there was an excess, or an abuse of power? And yet there is precisely the same right to extend it to negroes that there is to apply it to horses and cattle.

I think so valuable, so indespensable and vital a belligerent right ought not to be surrendered except upon the maturest consideration, and for the most cogent reasons.

The expediency of exercising the power is another question, and one about which men may well differ, and upon that I do not now propose to express any opinion. I did think, at the time, that it was expedient—that its influence was salutary, and that its fruit would be good, and nothing has fallen under my own observation to change that opinion.

But those who have a right to decide as well as think, have determined otherwise, and it becomes me, as well as every other good citizen, not only to submit to, but sustain that decision; and so I have done, and so I will continue to do.

This communication has grown to proportions far beyond my intentions when I commenced it, but even now it is only a glance at the important question discussed.

And now, Mr President, permit me in conclusion, in all kindness, (p.156) to say that I am not conscious of any “restlessness for new positions.” For us, new positions are not necessary. A firm adherence to old ones is, and this, I am sure, you intend. Thus far I have tried “to back you manfully upon the grounds upon which you had your election.” It may be I have done it feebly, but certainly honestly and earnestly; and I will be one of the last to falter in support of either our principles, or their chosen exponent.

And I am very sure that neither for yourself, nor for the Country, do you more ardently desire “that we shall go through triumphantly,” than does your very sincere

And faithful friend

O. H. Browning


Text adapted from the 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, transcribed by the Lincoln Studies Center, Knox College, Galesburg, Illinois.