all well and good, but the original thread was talking about the Emancipation Proclamation. Show me case law that declared that act illegal.
all well and good, but the original thread was talking about the Emancipation Proclamation. Show me case law that declared that act illegal.
All well and good if you can demonstrate that there was any opportunity to litigate the issue of the Emancipation Proclamation.
It was certainly moot and could not be litigated after the 13th Amendment. You seem to miss the point that I have been making about the absurdity of such requests for case law where there was no possibility for case law to be developed.
However, in a letter to Chief Justice Chase, Lincoln admitted that the proclamation had no legal or constitutional justification, except as a military measure. The only remaining question is the existence of justification as a military measure.
Hon. S. P. Chase.Executive Mansion,
Washington, September 2. 1863.My dear Sir:
Knowing your great anxiety that the emancipation proclamation shall now be applied to certain parts of Virginia and Louisiana which were exempted from it last January, I state briefly what appear to me to be difficulties in the way of such a step. The original proclamation has no constitutional or legal justification, except as a military measure. The exemptions were made because the military necessity did not apply to the exempted localities. Nor does that necessity apply to them now any more than it did then. If I take the step must I not do so, without the argument of military necessity, and so, without any argument, except the one that I think the measure politically expedient, and morally right? Would I not thus give up all footing upon constitution or law? Would I not thus be in the boundless field of absolutism? Could this pass unnoticed, or unresisted? Could it fail to be perceived that without any further stretch, I might do the same in Delaware, Maryland, Kentucky, Tennessee, and Missouri; and even change any law in any state? Would not many of our own friends shrink away appalled? Would it not lose us the elections, and with them, the very cause we seek to advance?
Lincoln justified the Proclamation as "warranted by the Constitution upon military necessity." Slavery existed based on law. Lincoln himself, on February 1, 1865, stated, "A question might be raised whether the proclamation was legally valid. It might be added that it only aided those who came into our lines and that it was inoperative as to those who did not give themselves up, or that it would have no effect upon the children of the slaves born hereafter."
Response to a Serenade [NY Tribune, Feb. 3, 1865, p.5]February 1, 1865
The President said he supposed the passage through Congress of the Constitutional amendment for the abolishment of Slavery throughout the United States, was the occasion to which he was indebted for the honor of this call. [Applause.] The occasion was one of congratulation to the country and to the whole world. But there is a task yet before us---to go forward and consummate by the votes of the States that which Congress so nobly began yesterday. [Applause and cries---``They will do it,'' &c.] He had the honor to inform those present that Illinois had already to-day done the work. [Applause.] Maryland was about half through; but he felt proud that Illinois was a little ahead. He thought this measure was a very fitting if not an indispensable adjunct to the winding up of the great difficulty. He wished the reunion of all the States perfected and so effected as to remove all causes of disturbance in the future; and to attain this end it was necessary that the original disturbing cause should, if possible, be rooted out. He thought all would bear him witness that he had never shrunk from doing all that he could to eradicate Slavery by issuing an emancipation proclamation. [Applause.] But that proclamation falls far short of what the amendment will be when fully consummated. A question might be raised whether the proclamation was legally valid. It might be added that it only aided those who came into our lines and that it was inoperative as to those who did not give themselves up, or that it would have no effect upon the children of the slaves born hereafter. In fact it would be urged that it did not meet the evil. But this amendment is a King's cure for all the evils. [Applause.] It winds the whole thing up. He would repeat that it was the fitting if not indispensable adjunct to the consummation of the great game we are playing. He could not but congratulate all present, himself, the country and the whole world upon this great moral victory.
Lincoln had serious questions about the legality of the Proclamation.
Lincoln was at least a doubter of his own rhetoric, and constitutional expert J.I.C. Hare points how how ascertaining the legality of the proclamation and resulting actions is not as simple as declaring a military necessity.
J.I.C. Hare, American Constitutional Law, (1889) Vol. II, 745-48 [footnotes omitted]
The principle in every such case is that an order given in accordance with the laws of war, by virtue of the conqueror's right to he obeyed, will have the effect of law as to acts done under it while still in force.The memorable proclamation of Mr. Lincoln, which will always mark an epoch in the history of the United States, may be referred to this principle. The Confederacy had been converted by the act of the inhabitants into hostile territory, and the slaves which it contained were either property or persons. If property, they might be taken from the enemy by capture; if persons, summoned to take part against him and with the government with which he was at war. The United States might therefore follow the example set by England during the Revolutionary War, which, though treated as a grievance iu the Declaration of Independence, may be regarded as a legitimate exercise of belligerent rights. In one repect the proclamation was an order to the land and naval forces of the United States to seize the slaves of the insurgents as prize of war; in another, it was an invitation to the disaffected subjects of a belligerent to throw off the yoke and join the invading army. Being a mere command, which wanted the force and effect of law, it could work no change in the legal status of the slave until executed by the hand of war; but if carried into execution it might, like other acts done jure belli, work a change that would survive on the return of peace. The slaves which came into the possession of the United States during the war may have owed their freedom to the proclamation; but it was wholly inoperative as to those who, remaining under the control and dominion of their masters, were finally liberated by the amendment abolishing elavery in the United States.
It is not easy to say how far the authority of a commanding officer over property extends during insurrection or invasion, but it clearly should not be exercised for the purpose of punishment, nor except in the course of warlike operations, or as a means of strengthening himself or weakening the enemy. As was said in Mrs. Alexander's case and reiterated in Young v. United States, "the right" (of capture or confiscation) "may now be regarded as substantially restricted to especial cases dictated by the necessary operations of the war, and as excluding in general the seizure of private property of specific persons for the sake of gain." The modern commentators on international law, including Kent and Hamilton, hold, for still stronger reasons, that debts, chases in action, and other property which has been brought into a country or acquired there during peace, cannot be confiscated on the occurrence of war consistently with the good faith which should be observed among nations; and the just inference from the authorities as a whole is that while the power must necessarily exist, unless it is withheld by the organic law, it can rarely be exercised without producing a distrust which will outweigh the temporary gain.
In the case of the Emulous, Story, J., said, referring to Hamilton's articles under the signature of Camillus: "I have been impressed with the opinion of a very distinguished writer of our own country on this subject. I admit in the fullest manner the great merit of the argument which he has adduced against the confiscation of private debts due to enemy subjects. Looking to the measure, not as of strict right, but of sound policy and national honor, I have no hesitation to say that the argument is unanswerable. He proves incontrovertibly what the highest interests of nations dictate with a view to permanent policy. But I have not been able to perceive the proofs by which he overthrows the ancient principle." The right is political rather than ex jure belli, and depends on the discretion of the government. Property within the limits of the United States is under the protection of the law even when it belongs to an enemy, and cannot, agreeably to the rule laid down in Brown v. United States, be taken by an individual as prize of war, or confiscated judicially, without the sanction of an act of Congress. If no such law is passed, the title of the owner remains unaffected, and may be asserted on the return of peace.
The Lieber Code, General Orders No. 100 : The Lieber Code INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.
The Lieber Code was the government policy on the law of armed conflict at the time. Articles 37 and 38 seem most applicable to slave seizure as property.
Art. 37.The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temporary and military uses.
Art. 38.
Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States. If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity.