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Was the Emancipation Proclamation legal?

Discussion in 'Civil War History - General Discussion' started by Copperhead-mi, Nov 19, 2011.

  1. Following General Fremont's martial law proclamation of August 1861, where he declared all slaves of disloyal owners to be free, we know that Lincoln rescinded the order based on constitutional concerns and out of fear that it would push the Border states into the Confederacy. Lincoln's revocation was subjected to severe criticism by some including long time friend Orville Browning.

    On Sept. 22, 1861 Lincoln responded in a confidential letter to Browning's criticism where the president stated "[t]hat 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. 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 that which has been done! But I cannot assume this 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 and 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 General 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."

    During May 1862, abolitionist General David Hunter, declared all slaves "forever free" in his military department which was comprised of the states of South Carolina, Georgia, and Florida. Hunter included the slaves of both loyal and disloyal owners in his edict.

    On May 19, 1862, Lincoln issued his "Proclamation Revoking General Hunter's Order of Military Emancipation of May 9, 1862" stating that under his War powers, the prerogative to emancipate as a military necessity was his alone.

    On July 17, 1862, Congress responded to some of Lincoln's statutory concerns he had expressed in his letter to Browning by enacting the Second Confiscation Act. This act authorized the seizure of property and slaves of any person who assisted or engaged in rebellion against the United States and declared that all seized slaves were "forever free of their servitude, and not again held as slaves." However, all property and slave seizures were subject to judicial review.

    Following Union setbacks during 1862, Lincoln, under pressure from his advisors, some military commanders, abolitionists, and radical congressmen, opted to change the Union's strategy to that of hard war which included the destruction of enemy property and the overthrow of the South's social institutions. The Administration reasoned that the protection of slavery is what led to the war and slavery helped prolong the war. Using only his constitutional authority as Chief Executive, Lincoln issued a Preliminary Proclamation on September 22, 1862, warning that emancipation would be forthcoming to any state in rebellion that did not return to the Union by January 1, 1863. Unlike the Second Confiscation Act, all slaves, regardless of the loyalty of their owner, would be free. He further alluded to compensation for slaveowners within any loyal slave state which implimented immediate or gradual emancipation as law, and as an enticement to those loyal slaveowners in the rebellious states, compensation for loss of property and slaves if their state returned to the Union.

    On January 1, 1863 Lincoln, invoking his War powers as Commander-in-Chief, issued the Emancipation Proclamation affecting the slaves of both loyal and disloyal owners in areas of rebellion with no mention of compensation for the freed slaves.

    Hence, my question. Was the Emancipation Proclamation legal? If so, why? If not, please explain.
     

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  3. Baggage Handler #2

    Baggage Handler #2 2nd Lieutenant

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    Given that the southern gov't did not view them as people, but as property, they had - in their own government's eyes - essentially the same rights as a bale of cotton.

    Cotton was fair spoils of war.

    So from the pt of view of the CS, it seems to have been legal, and given the fury with which that non-status had been pursued for the preceding 80 years, it shouldn't have troubled anybody else.
     
  4. I agree but what about the emancipation of slaves belonging to Southerners who were not aiding in the rebellion or who may have been fighting in the Federal army?
     
  5. whitworth

    whitworth 2nd Lieutenant

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    Emancipation legal

    Emancipation was a wartime measure taken by the U.S. commander in chief. For peacetime, something more substantial was needed, such as a Constitutional amendment.

    Lincoln was a great lawyer. Too many newbies and the non-legally trained, have no clue how good he was.
     
  6. I don't know if your last sentence was directed at me but for the record I have studied Lincoln for far more years than some of this site's members have been alive so I would hope I'm over the "newbie" status. I also am and have been an ardent supporter of most of Lincoln's actions. With that being stated, if Lincoln was invoking the belligerent right of confiscation of enemy property to justify the E. P., did not the laws of war limit the reason of confiscation to that of military necessity? I can understand military necessity as a reason to deprive disloyal slaveowners of their property since that property could be used to aid the Confederate war effort but how does one justify the confiscation of property of a loyal slaveowner without compensation unlike what was statutorily required when confiscationg cotton and other property from loyal Southerners? And where in the Laws of War does a belligerent right exist to create a criminal offense by proclamation and then prosecute a person for violating that proclamation?
     
  7. Savez

    Savez Sergeant Major

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    We finally agree on something.
     
  8. Savez

    Savez Sergeant Major

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    I'm sure he wasn't directing it at you. He was referring to "lost causers" if I had my guess. He has declared war on the lost cause. His posts are usually just that, lost cause bashing, sometimes they are vague attacks like his Union Steamboats to New Orleans thread. Ha Ha !
     
  9. IcarusPhoenix

    IcarusPhoenix Sergeant Major

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    The Constitution grants broad Presidential powers - without need of Congressional consent - in cases of "insurrection or rebellion", and since the Emancipation Proclamation really only had technical coverage of areas that were in insurrection at the time, then I'd say that it was an unequivocally legal act.
     
  10. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    I'll agree also.

    I'll submit that a army can take over a person's farm, buildings and so on; use it for a battle and leave it mostly destroyed without recourse to lawyers and courts.
     
  11. Freddy

    Freddy 2nd Lieutenant

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    What he said!
     
  12. KeyserSoze

    KeyserSoze Captain

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    The Emancipation Proclamation drew its authority from the Confiscation Acts passed by Congress in 1861 and 1862 and which gave the government the right to seize without compensation any private property that was being used to further the cause of the rebellion. Slaves certainly fell into that category.
     
  13. ole

    ole Brev. Brig. Gen'l Retired Moderator

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    Excellent thread and discussions therein.
     
  14. The Confiscation Act of July 1862 overrode the 1861 Act but regardless, what about the slaves of Southerners who stayed loyal to the Union and slaves of Southerners fighting FOR the Union army?
     
  15. Thomas

    Thomas Cadet

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    Copperhead;

    You don't seem to have a problem with freeing the slaves of Confederate loyalists under Lincoln's war powers. Access to slaves helped the CSA economically and militarily so they were a legitimate target. However it was not just the slaves belonging to CSA loyalists that helped the CSA war effort -- all slaves did so. All slaves were subject to requisition by the CSA government at any time. All slaves performed labor and produced goods -- activities that would have to be performed by someone else if the slaves were freed. Many (most?) of the US Colored Troops were former Southern slaves -- investigating the professed political leanings of their masters before enrolling them would place an unnecessary burden on the Union. Freeing all slaves also aided the Union war effort diplomatically.

    I can't think of any "fairness" requirement, constitutional or otherwise, that limits the President's war powers. The intent of such powers is not to punish individuals but to bring about military success. The most efficient method of striking at slavery was a blanket emancipation. The case by case method of emancipation that was tried in the confiscation acts had failed to effectively attack slavery -- harsher methods were needed.

    All attacks on economic resources had the potential to effect Unionists living behind CSA lines. That's the nature of war.
     
  16. ole

    ole Brev. Brig. Gen'l Retired Moderator

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    It is my understanding that, if the Union army did not confiscate it, the CSA would have. As non-confiscation would have benefitted the CSA, take it or burn it to deprive the CSA.

    As mentioned above, war is not something to be governed by fair or feeling. It's win or lose.
     
  17. trice

    trice Lt. Colonel

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    What Lincoln actually thought:
    =====
    II. Confiscation Acts.—"Mr. Lincoln said that so far as the confiscation acts and other penal acts were concerned, their enforcement was left entirely with him, and on that point he was perfectly willing to be full and explicit, and on his assurance perfect reliance might be placed. He should exercise the power of the Executive with the utmost liberality." "As to all questions," says Judge Campbell's report, " involving rights of property, the courts could determine them, and that Congress would no doubt be liberal in making restitution of confiscated property, or by indemnity, after the passions that had been excited by the war had been composed."


    III. The Emancipation Proclamation. — " Mr. Lincoln said that was a judicial question. How the courts would decide it he did not know, and could give no answer. His own opinion was, that as the proclamation was a war measure, and would have effect only from its being an exercise of the war power, as soon as the war ceased it would be inoperative for the future. It would be held to apply only to such slaves as had come under its operation while it was in active exercise. This was his individual opinion, but the courts might decide the other way, and hold that it effectually emancipated all the slaves in the States to which it applied at the time. So far as he was concerned, he should leave it to the courts to decide. He never would change or modify the terms of the proclamation in the slightest particular."


    At another point in the conversation "He said it was not his intention in the beginning to interfere with slavery in the States; that he never would have done it if he had not been compelled by necessity to do it to maintain the Union; that the subject presented many difficult and perplexing questions to him ; that he had hesitated for some time, and had resorted to this measure only when driven to it by public necessity; that he had been in favor of the General Government prohibiting the extension of slavery into the Territories, but did not think that that Government possessed power over the subject in the States, except as a war measure; and that he had always himself been in favor of emancipation, but not immediate emancipation, even by the States. Many evils attending this appeared to him."


    Recurring once more to the subject of emancipation, " He went on to say that he would be willing to be taxed to remunerate the South ern people for their slaves. He believed the people of the North were as responsible for slavery as the people of the South; and if the war should then cease, with the voluntary abolition of slavery by the States, he should be in favor, individually, of the Government paying a fair indemnity for the loss to the owners. He said he believed this feeling had an extensive existence at the North. He knew some who were in favor of an appropriation as high as four hundred millions of dollars for this purpose. I could mention persons, said he, whose names would astonish you, who are willing to do this if the war shall now cease without further expense, and with the abolition of slavery as stated. But on this subject, he said, he could give no assurance — enter into no stipulation. He barely expressed his own feelings and views, and what he believed to be the views of others upon the subject."
    =====
    From ABRAHAM LINCOLN: A HISTORY.'BLAIR'S MEXICAN PROJECT —THE HAMPTON ROADS CONFERENCE —THE XIIITH AMENDMENT.

    BY JOHN G. NICOLAY AND JOHN HAY, PRIVATE SECRETARIES TO THE PRESIDENT.


    THE CENTURY MAGAZINE.

    VOL. XXXVIII. NEW SERIES: VOL. XVI.

    Tim
     
  18. Thanks for the responses and information. I've always thought that the Proclamation was legal but since Lincoln invoked his right under the war powers as Commander-in Chief rather than a sovereign right as Chief Executive, I was curious as to which specific law of war bestowed a belligerent right to emancipate slaves. I know that John Quincy Adams as a congressman had espoused emancipation as a war power but based on what? Knowing that the Lieber Code was a super condensed version of Vattel's Law of Nations I first checked there but could not find anything in regards to the taking of enemy private property that quite fit a war power that would emancipate slaves of loyal slaveowners without compensation. I then checked Vattel as well as a couple of other sources and once again came up empty handed. Confiscation as a belligerent right for example, only applied to the private property in the confiscator's country or territory of individuals who were aiding or fighting for the enemy while requisition applied to any persons private property in enemy territory regardless of loyalty that could be taken under military necessity for immediate use by the military without compensation. And finally, capture was private property seized only with military necessity and targeted any resident of an enemy country regardless of their loyalties. It was not required to prove that captured private property had been used to aid the enemy nor was there a requirement as with requisitioned property, that it be be used by the capturing army. Also, the moment the private property was in the captor's possession, it transferred ownership title automatically to the captor government.

    An interesting thing I discovered while researching all of this was the fact that a slave owner was arrested and prosecuted for violating the Emancipation Proclamation. An excerpt from O.R. Series II, Volume VII, Part 1, pp.159-162:

    JUDGE-ADVOCATE-GENERAL'S OFFICE, May 24, 1864.

    THE SECRETARY OF WAR, FOR THE PRESIDENT:

    In the case of Fountain Brown, a citizen of Arkansas, referred to this office by order of Your Excellency, May 23, 1864, the following report is respectfully submitted:

    This is an application for the pardon of a man convicted by a military commission of selling into slavery and running beyond the Union lines colored persons who had been made free by the President's proclamation of emancipation. The facts proved or briefly these: The prisoner, who is a preacher and presiding elder of the Methodist Church in the State of Arkansas, resided at or near Flat Bayou, and, at the date of the President's proclamation, held as slaves two families of negroes, numbering about ten persons, old and young, of both sexes.
     
  19. FourLeafClover

    FourLeafClover First Sergeant

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    I thank you for your greatly informative post copperhead-mi. And your additional input trice. You have helped answer a question that has been rattling around my head for a while.

    Why was Emancipation as a goal of the war, not announced at an earlier stage?

    Legislatively Lincoln may have found his hands tied, personnally he may have had other mis-givings. I then found this speech he made earlier:

    On Oct. 16, 1854 Lincoln spoke from the Peoria Courthouse steps on the Kansas-Nebraska Act and its impact on the issue of slavery. He conceded that it was unlikely slavery would be abolished in the near future. He felt that if it could be contained, it would eventually diminish to a point where majority rule would vote it out of existence. "I have no prejudice against the Southern people," he said at Peoria. "They are just what we would be in their situation. If slavery did not now exist amongst them, they would not introduce it. If it did now exist amongst us, we should not instantly give it up. I surely will not blame them for not doing what I should not know how to do myself. If all earthly power were given me, I should not know what to do, as to the existing institution." He suggested that all national legislation in the future be framed on the principle that slavery should be restricted.

    As the timing of the proclamation is regarded as crucial, it leads me further to believe it was being used solely as a weapon of war. Not the heavenly manna the slaves had been crying out for.
    It certainly put fresh impetus into the war weary North, and had the international community keep their distance.
    Overnight the North had assumed the role of the righteous man, and the Southerners demonised. Still a gamble as to its impact, it was a political powder keg, and I pick up from posters here that, Lincoln still doubted a legal challenge to it may succeed.
    The victory at Antietam, and eventual introduction of new leadership in the army in hindsight makes the proclamation a master stroke. Instead of the dangerous threat to Lincoln's reputation, it was an "A" bomb for the South.

    And yet I hark back to Lincolns own words:

    "I have no prejudice against the Southern people,They are just what we would be in their situation".

    In this I believe Lincoln shows himself to be the absolute epitome of kindness and understanding. He had pushed the limits of his power as president, to the brink of breaking the laws he so highly esteemed. Without crossing the line, his conscience can remain clear.


     
  20. KeyserSoze

    KeyserSoze Captain

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    Got any examples of those?
     
  21. Not off the top of my head, but are you suggesting that there were no Southerners who remained loyal to the Union that may have owned a slave or two? Would not Julia Grant possibly be among that category? And I believe that every state of the Confederacy except South Carolina had white manned units in the Federal Army. Is it not possible that at least some of these soldiers left a slave or two behind when they joined up?
     

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