Emancipation Proclamation Sesquicentennial—

Lincoln’s New Rules of War and John Brown

Today marks 150 years to the day that Abraham Lincoln announced the Emancipation Proclamation.  The sesquicentennial of the Proclamation is noted in today’s New York Times, in an Op-Ed piece by John Fabian Witt, who reminds us that the Proclamation took effect on January 1, 1863, although it was issued on this day in 1862.  More importantly, Witt, a professor at Yale Law School, and an author of Lincoln’s Code: The Laws of War in American History, puts the Proclamation in historical perspective.  He notes that the rebel government of Jefferson Davis and the Confederacy “condemned it as barbaric and inhumane,” and vindictively swore to treat captured black soldiers and their officers as criminals, not as prisoners of war.  In response, the Union promised to retaliate in turn.

Witt says that as a result of the retaliatory threat of the rebels, the Union was forced “to restate its position on the laws of war,” in December 1862—a few weeks before the Proclamation went into effect—Lincoln’s General-in-Chief, Henry Halleck, commissioned an extended statement of the Union’s views of the laws of warfare (drafted by a Columbia University professor named Francis Lieber).   Along with prohibiting torture, assassination, and abuse of prisoners of war, the new Union code “distinguished between soldiers and civilians” and “disclaimed cruelty, revenge attacks and senseless suffering.”  But the most notable aspect of the new code, he says, was that the federal government now “defended the freeing of enemy slaves and the arming of black soldiers as a humanitarian imperative, not as an invitation to atrocity.” 

This is important because it was typically assumed that any effort to liberate the enslaved and arm them for warfare was the declaration of servile war and insurrection—in other words, that it called for the slaughter of the slave master class, families and all, along with the larger white society that had promoted and protected slavery.  The white South was well aware of the bloody revolutionary overthrow of white supremacy that had taken place in Haiti in the 1790s, not to mention Nat Turner’s unsuccessful but bloody attack in southern Virginia in 1831 that left bloody trail and a pile of beheaded children—the ill-fated heirs of their slave holding parents.  I made this observation in a post (July 22, 2010) about the pro-slavery artist, Albert Volck, a political cartoonist in Baltimore.  Volk’s portrayal of Lincoln signing the Emancipation Proclamation was downright diabolical—loaded with innuendos of bloody servile war, including portraits of John Brown and the Haitian revolution (including a white baby impaled on a pike).

Of course, Witt’s Op-Ed is intended to commemorate the Emancipation Proclamation anniversary with an eye toward how it led to the Union’s war code, which “became the blueprint for a new generation of treaties, up to the Geneva Conventions of 1949.”  The downside of the Union’s 1862 war codes, Witt says, was that it inadvertently made “terrible violence” acceptable. The Union code of 1862, triggered by the Emancipation Proclamation, did not “relieve war of its terrors,” he concludes, but rather stands “as a living reminder. . .of how thoroughly the United States’ most significant moment still shapes our moral universe.” 

His point is well taken.  There is something ultimately hopeless in the idea of engaging a “humane” war.  Wars necessitate bloodshed, violence and death, and even the seemingly most justifiable wars, guided by codes and practices deemed humane, result in “terrible violence.” However, not a single tyrant throughout human history has been vanquished by non-violence.  The famously passive Christian martyrs of Rome may have “won” ultimate “victory” without the sword, but it even took Constantine’s violent contests and final victory at Milvian Bridge to secure the peaceful Christian triumph over the empire. Like the proverbial “apple a day,” habits of peacemaking and dialogue can go a long way toward healthful peace.  Without the preferential option for peace, life would be far worse. But in matters of disease and severe affliction, “an apple a day” cannot do the terrible work of a surgeon, who must harm some part of the body in order to save the whole. 

Here and there one may hear regrets expressed about the tragedy of bloodletting that resulted when Lincoln held firmly to the Union, insisting that the seceding slave states could not be permitted to rebel.  With the sesquicentennial of the Civil War upon us, someone has lamented over those who “whistle” Civil War sentimentality while “washing their hands in the blood” of its tragic history.  In other words, some of the Civil War enthusiasm in this country seems indifferent to the expansive violence and bloodshed it required, something not existentially appreciated by the stereotypical Civil War history enthusiast.  In many cases, such military history enthusiasm tends to pull our attention away from the dire suffering and death that beset the nation, as well as the political realities of the war. 

On the other hand, there is a subtle conservative revision in all this sesquicentennial lamentation, particularly when the suggestion is made that more might have been done to avoid the war, and that the problem of slavery might have been dealt with by more rigorous pursuit of compromise by leaders in the North and South.  Of course, this is a counter-factual, revisionist, and simplistic antidote—as if something more might have been done to avoid war; as if the North could have compromised even more than it had already done in order to placate the pro-slavery ambitions of the Southern states. What policy would have avoided the war, when many pro-slavery state leaders were determined to secede if a Democrat did not win the 1860 election?  Or what could Lincoln have done beyond the compromise he offered—which left the slave states alone, as long as they did not extend slavery? What else could the United States have offered to the South, since Lincoln was evidently prepared to offer up three million black people as a sacrifice for the preservation of the Union?  However terrible, those who lament the Civil War’s mind-boggling loss of 600,000 lives and cry out against the war in historical terms, reflect a default racist perspective.  Any compromise to avoid war necessarily would have entailed the continuation of chattel slavery for many years; anyone who opts for the continued enslavement of millions of black people in order to save a half-million white soldiers cannot be considered just, no matter how terrible the loss. 

John Brown’s failed attempt to rescue the enslaved people of the South through a means of stealth and defensive fighting was greeted by pro-slavery leaders—like Lincoln’s Emancipation Proclamation—as an outright act of insurrectionary violence against pro-slavery society.  While Brown consistently and repeatedly stated that he never intended an insurrection—that is a literal war on slaveholders—it was assumed and insisted upon by his Southern prosecutors that his intent was malign and vicious.  For instance, the Governor of South Carolina at the time of the Harper’s Ferry raid declared that Brown and his men had invaded Virginia “to instigate our slaves to insurrection, and furnished them with arms to murder us on Southern soil.”*  In convicting Brown and his men on the count of “insurrection,” the State of Virginia was effectively categorizing his intentions as the same as Nat Turner, even though Brown was almost obsessed with the idea of avoiding servile warfare and retaliatory violence.

Witt’s discussion of the Union’s rules of war thus invoke discussion of John Brown’s real intentions, exemplified by his Provisional Constitution, as well as his manner of conduct in the raid.   Brown had intended to do what Lincoln finally came to do, which was put arms into the hands of black people, including formerly enslaved men.  When Brown did so, the North called it insurrection and the South screamed bloody murder.  When Lincoln came to the same realization of using black soldiers, it was now, as Witt points out, “a humanitarian imperative,” not “an invitation to atrocity.”  In fact, what Lincoln hoped to accomplish by using black soldiers is what John Brown intended all along.  Brown was expressly concerned that no prisoners of war be tortured or killed, that no rape or abuse of prisoners would take place in his army, and that freedmen and freedwomen would not commit retaliatory or vendetta murder once they were armed.  The Old Man would not avenge the murder of his own son in Kansas, and he intended his movement in the South to follow the same premise of liberation of the oppressed without descending into the bloodiest depths of servile war.  

Witt concludes that despite the scandal and fear created in the South by Lincoln’s emancipation agenda, its “moral triumph” succeeded insofar as the “feared terrors of a mass slave insurrection never came to pass.”  Instead, black soldiers proved to be “like roving institutions of freedom, abolishing slavery wherever they went.”  Might this also have proven true had Brown’s “Provisional Government of the People of the United States” become a reality in the South? 

           * “Important from South Carolina,” New York Herald, December 2, 1859, p. 4.