Was the Emancipation Proclamation legal?

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#21
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.
Just a few comments. An action by the president is "legal" subject to adjudication. It can be struck down by the courts if it doesn't pass constitutional or other muster. I think there were cases where slave owners took the US to court over the issues you raise. If someone is aware of these, that would be good info to bring to the discussion.

Lincoln did issue the EP as Commander in Chief. However, the Confiscation Act did provide him with authority that was applied in the EP. For example, the 100 days notice provided by Lincoln in the preliminary EP follows the Act's requirement in Sec 6 for 60 days notice:
SEC. 6. And be it further enacted, That if any person within any State or Territory of the United States, other than those named as aforesaid, after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof. And all sales, transfers, or conveyances, of any such property after the expiration of the said sixty days from the date of such warning and proclamation shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.

And as you note, the Confiscation Act did authorize the president to seize slave property from those in "rebellion." So again, this is authority that was granted by Congress.

It is useful to note that the EP was not applicable to certain sections of Louisiana and Virginia. These areas were under federal control, and thus not "in rebellion." And it did not apply to the state of Tennessee at all. Thus, a small minority of people in "loyal areas" of the Confederacy were not (immediately) subject to the loss of slave property.

Interestingly, the EP provides a definition of people who are "in rebellion":
"That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then in rebellion against the United States."
Thus, per the EP, any person whose state is not represented in Congress is, on the face of it, a rebel - in the absence of "strong countervailing testimony." (Meanwhile, the Second Confiscation Act, in Sec 9 says, And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army...)

The point is that, the EP does seem explicitly provide the ability for individuals in "rebel" areas to provide testimony that they themselves are not in rebellion.

I am not a lawyer, so I myself can't say if the EP was "legal." From what I can tell, it does seem like it pass judicial muster, to use a term. I think the real problem would be in the execution of the EP: were there valid and appropriate processes in place so that a person could provide "testimony" that he wasn't a rebel, and so, could not have his (chattel) property taken? If those processes were not in place, that would be a problem, I think. The question is, did the courts ever deal with these issues, and, what was the outcome?
 

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#22
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?
I'm saying I don't know of any.

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?
Julia Grant didn't own slaves; her father did and she had the use of them. And the Dent family voluntarily emancipated their slaves early in 1863 even though the Emancipation Proclamation didn't affect them.
 
#23
I'm saying I don't know of any.



Julia Grant didn't own slaves; her father did and she had the use of them. And the Dent family voluntarily emancipated their slaves early in 1863 even though the Emancipation Proclamation didn't affect them.
If I recall correctly, Julia was given at least a couple of slaves as a gift, possibly a wedding gift, but as you pointed out and I had forgotten, she mentioned in her memoirs that they were manumitted prior to the Emancipation Proclamation.
 

trice

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#24
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?
Here is Lincoln's opinion on that, as well as former Supreme Court Justice Campbell's, given in 1865 at the Hampton Roads Conference:

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."

See post #16 above.

Tim
 

sf46

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#25
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.
Ole, I'll agree with that. It's too bad that those running U.S. wars as of late have forgotten these lessons.
 

sf46

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#26
I think the Emancipation Proclamation was legal, but was only able to be put into legal effect in those areas not under Union control, once they came under control. The funny thing about the Proclamation here in Louisiana, was that it did not pertain to most of the eastern part of the state as that territory was already under Union control, so none of those slaves were actually freed until the 13th Amendment in December 1865.
 

B Peach

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#27
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.
EP herehttp://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html

One, the new Loalty oath when taken made you no longer in insurection or rebelion an therefore immune to the first para that makes your property no longer yours.

The New Confiscation Act 1862 replaced the law on insurection, (formerly any property of a citizens in insurection ( and had to be used to prosecute the insurection) had to be returned to them or compensation payed, after the insurection was quashed.)

This new law gave, during the operative period of the insurection, POTUS the legal basis to free slaves from owners in insurection.
http://www.history.umd.edu/Freedmen/conact2.htm
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free; or, at the discretion of the court, he shall be imprisoned for not less than five years and fined not less than ten thousand dollars, and all his slaves, if any, shall be declared and made free; said fine shall be levied and collected on any or all of the property, real and personal, excluding slaves, of which the said person so convicted was the owner at the time of committing the said crime, any sale or conveyance to the contrary notwithstanding.

SEC. 2. And be it further enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.
 

ole

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#28
If Lincoln had said, "kill them all and let God sort 'em out," it would not have been illegal. In war, the law is silent.

No. It would not have been nice. And nobody wanted to kill them all, except Sherman who was known to run off at the mouth. But it was war.

You knock a guy down and let him get up, you don't really understand conflict. You stomp him until he can't get up. That is war.
 

B Peach

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#29
If Lincoln had said, "kill them all and let God sort 'em out," it would not have been illegal. In war, the law is silent.
Sorry Ole but the term in war laws are silent comes from the Roman practice of wageing war, when wars were regulated by Roman/Greek etc laws because they were fought between societies with laws to regulate those wars. When it was decided to end anothers politcal existence, say Carthage in the 3 Punic war, then no laws applied and there was only the surving state and and an anhilated poltical and physical state, this form of warfare become illegal in 1648 by internation law, but was re introduced by the Nazis and again removed at Nuremburg. There was also wars between those societies and tribes who had no codified laws, in those cases, Romans simply exterminated them as political socities as well as physical ones were it could or untill the tribe migrated away, as there was no need for a post war political interaction between the transient and mobile tribes, or indeed anything except conflict between those migrant/transiant tribes and Rome.


In war, the Law is louder than in peace, otherwise we are back to Rome anhilation of political society and extermination and slavery of the population of that society, and not haveing to worry about post conflict interaction.
 
#30
<snipped for brevity>
In war, the Law is louder than in peace, otherwise we are back to Rome anhilation of political society and extermination and slavery of the population of that society, and not haveing to worry about post conflict interaction.

Supreme Court Chief Justice William H. Rehnquist disagrees with you:

"Surely Abraham Lincoln is the greatest of American Presidents, and Franklin Roosevelt ranks high among the runners up. Lincoln did not himself approve in advance of most of the arrests, detentions, and trials before military commissions which took place during the Civil War. His cabinet secretaries and other advisors did that, but Lincoln acquiesced in almost all of their decisions. The same may be said for Franklin Roosevelt during the Second World War; he did not originate the plan for the relocation of the Japanese from the west coast, but he unhesitatingly acquiesced in it when he was told that it was a necessary war measure.

Lincoln felt that the great task of his administration was to preserve the Union. If he could do it by following the Constitution, he would; but if he had to choose between preserving the Union or obeying the Constitution, he would quite willingly choose the former course. Franklin Roosevelt felt the great task of his wartime administration was to win World War II, and, like Lincoln, if forced to choose between a necessary war measure and obeying the Constitution, he would opt for the former.

This is not necessarily a condemnation. Both Lincoln and FDR fit into this mold. The courts, for their part, have largely reserved the decisions favoring civil liberties in wartime to be handed down after the war was over. Again, we see the truth in the maxim Inter Arma Silent Leges -- time of war the laws are silent.

To lawyers and judges, this may seem a thoroughly undesirable state of affairs, but in the greater scheme of things it may be best for all concerned. The fact that judges are loath to strike down wartime measures while the war is going on is demonstrated both by our experience in the Civil War and in World War II. This fact represents something more than some sort of patriotic hysteria that holds the judiciary in its grip; it has been felt and even embraced by members of the Supreme Court who have championed civil liberty in peacetime. Witness Justice Hugo Black: he wrote the opinion for the Court upholding the forced relocation of Japanese Americans in 1944, but he also wrote the Court's opinion striking down martial law in Hawaii two years later. While we would not want to subscribe to the full sweep of the Latin maxim -- Inter Arma Silent Leges -- in time of war the laws are silent, perhaps we can accept the proposition that though the laws are not silent in wartime, they speak with a muted voice."

Remarks of Chief Justice William H. Rehnquist
100th Anniversiry Celebration
Of the Norfolk and Portsmouth Bar Assoication
Norfolk, Virginia
May 3, 2000
 

B Peach

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#31
Supreme Court Chief Justice William H. Rehnquist disagrees with you:
Not really,and i dont diasgree with him btw, because he does not disagree with my posts content, ( when you use force to entirely destroy a political entity, you dont wage war acording to any rules of war, as there is no one left afterwards to wage a war of revenge as per the Romans destruction of Carthage and Corinth, or Alexander for Thebes, or the Nazis in ww2)) the USA did not wage war to exterminate each Southern states as a politcal entity, nor did the CS states seek to end the political existence of the USA, only to remove themselves from it, and every action it undertook to restore them to the Union, it justified in doing so by appealling to the law when it did so.


From All the Laws but One: Civil Liberties in Wartime Justice William H. Rehnquist
"An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future justices of the Supreme Court will decide questions differently from their predecessors. But even though this be so, there is every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future. It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty. The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."
 
#32
Not really,and i dont diasgree with him btw, because he does not disagree with my posts content, the USA did not wage war to exterminate each Southern states as a politcal entity, nor did the CS states seek to end the political existence of the USA, only to remove themselves from it, and every action it undertook to restore them to the Union, it justified in doing so by appealling to the law when it did so.
<remainder snipped for brevity>
My bad. I should of snipped the remainder of the sentence for my response was directed to the portion your comment that "n war, the Law is louder than in peace," and Rehnquist's comments are clearly at odds with that.
 

B Peach

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#33
My bad. I should of snipped the remainder of the sentence for my response was directed to the portion your comment that "n war, the Law is louder than in peace," and Rehnquist's comments are clearly at odds with that.



Np, its because your focused on one phrase without understand its context to the point it refers to, which is adifferent from his point and set of circumstances he is refering too in the USA. The laws fell silent for Jews in ww2 as the intent there would be no more jews, just as they did in Carthages case, its then when the laws shout loudest that something is wrong. Not that the laws to allow such thing are bad law, "but not law at all", which is also another legal maxim in latin btw.
 
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#34
...Justice William H. Rehnquist...
That would be the same Chief Justice Rehnquist who wrote, " The question of whether only Congress may suspend it [habeas corpus] has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police?"
 

unionblue

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#35
My bad. I should of snipped the remainder of the sentence for my response was directed to the portion your comment that "n war, the Law is louder than in peace," and Rehnquist's comments are clearly at odds with that.


Copperhead,

Yes, his comments are, but I'm afraid it simply won't matter. :smile:

Unionblue
 



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