Emancipation Day April 16, 1862

[trice]

On the 16th of April, 1862 President Lincoln signed into law the Compensated Emancipation Act. Together with the Supplemental Compensated Emancipation Act of July 1862, this provided for the freeing of about 3,100 slaves in the District of Columbia. Slave owners were paid an average of about $300 for each slave, for a total just under $1 million in government spending.

This day is a holiday in Washington, DC and has been for several years. It is the reason you have until the 17th to file your taxes this year.

Regards,
Tim

[elektratig]

Trice

As a footnote to your post: the Act was probably unconstitutional, for reasons discussed at the link below.

http://elektratig.blogspot.com/2007/...ation-act.html

[trice]

Originally Posted by elektratig

Trice

As a footnote to your post: the Act was probably unconstitutional, for reasons discussed at the link below.

http://elektratig.blogspot.com/2007/...ation-act.html

Thanks. That is an interesting commentary and addresses some musings I had myself.

On the Fifth Amendment issue ("nor shall private property be taken for public use, without just compensation"), I would suppose there was considerable reason to believe the Supreme Court would have overturned the act. It would be interesting to know why Taney didn't hear a challenge. Maybe the government made sure none reached his court; maybe the public climate was such the act was regarded as inevitable and slaveowners should be grateful for getting whatever they could get.

On the "just compensation" issue, I would suppose there would not be many "prime field hands" in the District of Columbia in 1863. There might have been some, but I would suspect that most such would have been "sold South" before the war, or taken away if their owners fled South with the Civil War. So the average value of a slave in Washington should be considered as somewhat below that $1,000 price when we consider the children and the aged, the sick and the infirm, the house-slave instead of the field hand. Purely on a guess, let's suppose the average slave in the district would have fetched $700 if put at auction before the war.

That doesn't imply the fair value of those slaves would still be $700/each in 1862. I don't know, but would guess that the market value of a slave sold in Washington in early 1862 was probably very depressed by circumstances (war, the difficulty/danger of transporting them to a better market -- i.e., running the blockade or sneaking through the lines, buyer reluctance to buy property that might be confiscated/freed/run away so quickly and easily).

So my guess is that a claim could have been made that the compensation was not "just", but that fair 1862 market value in Washington, DC was probably closer to $300 than to $1000. I am sure a case could be argued in court for a higher price, but we would be talking about compensation and penalties, not constitutionality.

On the Constitutional issue, my guess is that the act might have been overturned. Only 2 years before this issue (slavery and the slave trade in the District) had been highly contentious. Lincoln himself had felt he had no right to interfere with slavery in the states where it existed up until this moment, and the Emancipation Proclamation is only justified as a penalty inflicted upon Rebels by the "war powers" of the Presidency in an emergency.

The Taney Court was obviously antagonistic to the concept of Federal interference with slavery (see Dred Scott, Kansas-Nebraska, etc.); at least the Chief Justice was. The issue of whether or not the Federal government had the power to do this was one Taney would have opposed vigorously.

Regards,
Tim

[elektratig]

Trice,

I intentionally characterized the issue as a "footnote" to your post because (a) it never became an issue, because no suit challenging the Act was ever filed so far as I know, and (b) events and later the Thirteenth Amendment made it irrelevant. It's more of a thought experiment, particularly given the frenzied nature of constitutional litigation today. In all honesty, I'm less interested in what Taney would have done (because I have little doubt) and more interested in what a hypothetical, conscientious Republican judge would have done. Would you or could you somehow fudge the legal principle (which seems pretty clear) to uphold the Act?

You're probably right about the price issue as well. But the "public use" issue is the far more difficult and therefore interesting one.

[trice]

Originally Posted by elektratig

Trice,

I intentionally characterized the issue as a "footnote" to your post because (a) it never became an issue, because no suit challenging the Act was ever filed so far as I know, and (b) events and later the Thirteenth Amendment made it irrelevant. It's more of a thought experiment, particularly given the frenzied nature of constitutional litigation today. In all honesty, I'm less interested in what Taney would have done (because I have little doubt) and more interested in what a hypothetical, conscientious Republican judge would have done. Would you or could you somehow fudge the legal principle (which seems pretty clear) to uphold the Act?

You're probably right about the price issue as well. But the "public use" issue is the far more difficult and therefore interesting one.

Your "hypothetical, conscientious Republican judge" probably should have struck down this act on the "public use" issue.

But judges, lawyers, and politicians have often found innovative ways to a solution they desired. Predicting the decisions of the Supreme Court on the past records of the Justices has often failed, and I am pretty sure you can cite more instances of that than I can.

If the "hypothetical, conscientious Republican judge" saw a higher purpose in the act, he might have worried at his decision until he found a way to the definition of "public purpose" you point out. I am not sure that is necessary.

If the hypothetical judge firmly believed, for example, that the Federal government of the Constitution had and always had had the power to regulate slavery on strictly Federal territory, denying the thrust of the Taney Court's Dred Scott decision as an aberation, then he would have a different road to follow. He could see two conflicting issues here: the Union's right and power to regulate slavery against the V Ammendment protections you point out. He might look for a way to reduce this to a civil suit for a fair price and damages while giving himself a path to allow the act to stand.

I am certainly not a legal scholar, and it is a long time since I took constitutional law. I could easily be wrong on that. I just think from time to time judges look for a way to make the law the way they think it should be, rather than the way the law reads on the page. A proper "hypothetical, conscientious Republican judge" might have come to that fork in the legal maze, and gone one way -- or the other. IMHO.

Regards,
Tim