Thanks, have seen these items before.
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.
After Jan 1 1863. There were no legal slaves in those areas in rebellion against the United States. Since their status had been changed from that of slave to freeman, they are not property. Once the Union Army took control of one of those areas in rebellion, the freemen could leave or stay as they wished, enlist in the Union army, or they could be hired to work for the army. They could also remain there and continue working for their former owners if they so desired. Since freemen were no longer “property” articles 37 and 38 are not applicable.
After Jan 1 1863. There were no legal slaves in those areas in rebellion against the United States. Since their status had been changed from that of slave to freeman, they are not property.
The is a misapprehension of the presidential power to proclaim, and the law. The mere Proclamation by Lincoln could not have, and did not, affect the legal status status of anyone.
James G. Randall, Constitutional Problems Under Lincoln, (1951), pp. 382-85. After reviewing the practical effect of the Emancipation Proclamation, Randall addressed the legal effect, i.e., nothing.
Its legal status is a different matter. Slavery existed on the basis of law; and if it were to be permanently abolished, this would have to be done by some process of law. Just what would have been the status of slavery if there had been no anti-slavery amendment, is a difficult question. While insisting the freedoom delcared in his proclamation was irrevocable, Lincoln had doubts as to the manner in which the courts would treat his edict. He thought that it was a war measure and would be inoperative at the close of the war, but he was not sure. His attitude toward the Thirteenth Amendment showed how conscious he was of legal deficiencies in the proclamation, and these doubts were reflected in Congress where proposals to incorporate the proclamation into Federal law were presented by supporters of the administration.One of the ablest lawyers of that day [Richard A. Dana, Jr. at providence, R.I., New York Tribune, April 13, 1865] put the matter thus: “That an army may free the slaves of an enemy is a settled right of law. . . . But if any man fears or hopes that the proclamation did as a matter of law by its own force, alter the legal status of one slave in America ... he builds his fears or hopes on the sand.
It is a military act and not a decree of a legislator. It has no legal effect by its own force on the status of the slave. ... If you sustain the war you must expect to see the war work out emancipation.” And Secretary Welles of the Navy wrote in 1863: “What is to be the ultimate effect of the Proclamation, and what will be the exact status of the slaves . . . were the States now to resume their position, I am not prepared to say. The courts would adjudicate the questions; there would be legislative action in Congress and in the States also.” He added, however, that no slave who had left a “rebel” master and come within the Union lines, or who had served under the flag, could ever again be forced into involuntary servitude.
Hare, a reliable authority on constitutional law, is somewhat more positive as to the permanent effect of the proclamation. It was, he said, a mere command which could effect no change till executed by the hand of war; “but if carried into execution it might, like other acts jure belli, work a change that would survive on the return of peace.” Admitting the right of emancipation as coming within the jus belli, one could say that the liberated slave would be as secure in his altered status as contraband property, if seized, would be in its new ownership. This would apply only to those slaves actually liberated by the incidents of war.
Taken at its best, however, the proclamation, with its partial application, was not a comprehensive solution of the slavery problem; and, in spite of this striking use of national authority, the slavery question, from 1863 to 1865, still remained, in large part, a State matter.
Speech of Richard H. Dana, Jr., at a meeting of citizens held in Faneuil Hall., June 21, 1865, to consider the subject to re-organization of the rebel states
[excerpt]
In the progress of this war, we found it necessary to proclaim the emancipation of every slave. [Applause.] On the first day of January, 1863, Abraham Lincoln, of blessed memory, declared the emancipation of every slave. It was a military act, not a civil act. Military acts depend upon military power, and the measure of military power is the length of the military arm. That proclamation of the first of January did not emancipate the slaves, but the military arm emancipated them, as it was stretched forth and made bare.[...]
There must, therefore, not merely be an emancipation of the actual, living slaves, but there must be an abolition of the slave system. [Applause.] Every State must have the abolition of slavery in its constitution, or else we must have the amendment of the Constitution, ratified by three-fourths of the States. Yes, that little railroad-ridden republic, New Jersey, must be shamed into adopting the amendment to the Constitution. [Applause.] New Jersey, whose vote, seventy years ago; alone prevented the adoption of Jefferson's great ordinance, making subsequently acquired territories free, and which now stands alone among the free States against this proposition of amendment—must be shamed into its adoption.
For the record, New Jersey ratified the Thirteenth Amendment on 23 Jan 1866.
Delaware ratified in 1901; Kentucky in 1976.