In his A. Lincoln Blog, which I heartily recommend, historian Brian Dirck recently noted the 144th anniversary of Lincoln’s signing of the District of Columbia Emancipation Act on April 16, 1862. The Act provided for the immediate emancipation of all slaves in the District. Owners were entitled to compensation, in an amount up to $300 per slave. The Act established a panel of three Commissioners, to be appointed by the President and confirmed by the Senate. Owners had ninety days in which to file with the Commissioners written petitions seeking compensation. In his petition, the owner was obligated to “declare[e] his allegiance to the Government of the United States, and that he has not borne arms against the United States during the present rebellion, nor in any way given aid or comfort thereto.” Except in instances of conflicting claims, the Commissioners’ awards were final.
I’m posting, however, in order to address Professor Dirck’s assertion that Lincoln signed the Act “because there was no constitutional question about his and Congress’ power to do so.” In fact, substantial doubt exists on the question. And no, I am not referring to some wild-eyed theory of John Calhoun. The argument I'm referring to is that of David M. Currie, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. Professor Currie is perhaps the leading scholar of Constitutional history in our country today.
Professor Currie suggests that abolition of slavery in the District may have violated the Takings Clause of the Fifth Amendment, which provides, “nor shall private property be taken for public use, without just compensation.” In the context of discussing earlier pre-War efforts to abolish slavery in the District on a post-nati basis, Professor Currie argues that both post-nati emancipation and emancipation as accomplished under the Act were unconstitutional:
“Like it or not, slaves were property . . .. To free slaves was to take away the property of their masters . . ..
“Occasional speakers hazarded the response that no property would be taken since emancipation would be gradual, as it had been in most Northern states. Persons currently held in slavery would be unaffected; only their offspring would be set free, presumably after reaching majority. But this argument ignored familiar and basic principles of property law: the landowner’s title included future crops, the husbandman’s the increase of cattle, the master’s the children of his slaves. Even the argument that the owner would be compensated in kind by the labor performed before emancipation went only to the amount of damages, for he had a right to that labor – as well as to the future services of which he would be deprived.
“But there was a more fundamental difficulty that even compensation would not appear to avoid: the Constitution seemed to say that private property could be taken only for public use. No one was proposing that the Government take title to slaves and put them to work cleaning streets – or even, as during the Civil War, fighting to preserve the Union. The slaves would be set free and belong to no one; they were not to be taken for public use as that term had generally been understood.
* * *
“The eminent historian Alan Nevins once suggested that abolition might have effected no taking of property because owners would have been free to remove slaves from the jurisdiction or sell them to purchasers in states still recognizing slavery. It is significant, I think, that advocates of congressional authority seem never to have taken this tack in Congress. All the argument proves is that alert owners could avoid losing their property by getting it out of reach before it was seized; any slaves born in the District after the date specified in the law and not removed before the age of emancipation would in fact be taken, and not for public use. One might try to analogize this scenario to that of . . . a master who takes his slave into territory previously declared free [which Professor Currie believes is clearly constitutional]: Arguably it is the owner’s own fault that led to the loss of his property, and the Government should not be responsible. The retroactive aspect of abolition, I think, distinguishes the latter case: The right to own slaves in the District includes the right to keep them there, but not in Pennsylvania, since each jurisdiction has power to regulate its own affairs.
* * *
“More would be said on this topic during the debates on what became the Compromise of 1850, and again in 1862, when slavery in the District was finally abolished – not gradually but in a single blow, and on patently inadequate compensation in those cases in which compensation was provided at all. For now let it suffice to say that it is far from obvious that, short of constitutional amendment, Congress could lawfully abolish existing property rights in slaves in the District of Columbia.”
David P. Currie,
The Constitution in Congress: Descent into the Maelstrom, 1829-1861, pp. 13, 14, 16-17.
I am not entirely convinced that Professor Currie is correct. In particular, he may not sufficiently take into account the fact that the Constitution specifically avoids labeling slaves as “property” and that the common law recognized in a number of contexts that a slave was a unique form of property that was legally distinguishable from, say, a horse or an acre of land. Nonetheless, his opinion is not lightly ignored.
Professor Dirck’s A. Lincoln Blog post:
http://alincolnblog.blogspot.com/200...n-news_19.html
The District of Columbia Emancipation Act:
http://teachingamericanhistory.org/l...p?document=560
My earlier post on Professor Currie’s book:
http://civilwartalk.com/forums/book-movie-review-tent/24424-david-p-currie-constitution-congress-descent-into-maelstrom-1829-1861-a.html
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Abolition in the District of Columbia 
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