Replies

woodpusher: "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."
DiogenesLamp even argues that all slaves freed by Lincoln's Emancipation Proclamation should have been returned to their alleged "masters" after Confederate surrenders, but before ratification of the 13th Amendment in December 1865.
It's a ludicrous argument.
At most you might say that freedmen, once freed, could only be returned to slavery if they volunteered, or if, as the 13th Amendment provides, as punishment for crime.

Bullshit attribution. That is not a quote of woodpusher, it is a quote of history scholar Dr. James G. Randall, Ph.D. Dr. Randall was President of the American Historical Association and one of the most critically acclaimed Lincoln scholars. The quote was attributed to Randall and blockquoted by indenting below the attribution, as shown below. It is not an opinion of woodpusher you label as "ludicrous," but the opinion of one of the foremost history scholars.

James G. Randall, Constitutional Problems Under Lincoln, 1951, at 382-385: (footnotes omitted)
Its legal effect 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 that the freedom declared 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 H. Dana] 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.

In substance, Lincoln made the same argument to Orville Browning. Far from being ludicrous, as you claim in ignorance of the law, Randall and Lincoln knew full well what the law was, and that the confiscation of slaves due to a war measure could not lawfully change the status of property after the war. After the war, the 13th Amendment was a necessity.

Lincoln wrote to Orville Browning, September 22, 1861:

What has been said of Louisiana will apply generally to other States. 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?

CW 4:531-32

Randall's Lincoln: An Academic Scholar's Biography
JAMES HARVEY YOUNG
Journal of the Abraham Lincoln Association
Volume 19, Issue 2, Summer 1998, pp. 1-13
Permalink: http://hdl.handle.net/2027/spo.2629860.0019.203

https://www.historians.org/about-aha-and-membership/aha-history-and-archives/presidential-addresses/james-g-randall

Excerpt (footnotes omitted)

Constitutional Problems under Lincoln was published in 1926. A reviewer asserted that Randall had shown "a quality of mastery, which will give his treatment such finality as one may expect from mortal historians." Randall next collaborated with his colleague, Theodore C. Pease, in editing The Diary of Orville Hickman Browning, a Quincy lawyer and friend of Lincoln who succeeded Stephen A. Douglas in the Senate. Randall pondered writing a constitutional history of the nation, but instead he vastly expanded the scope of his study of both the Civil War and Lincoln, the first academic historian to undertake this enormous challenge. His decision was confirmed when he was invited to prepare the Lincoln sketch for the Dictionary of American Biography. This was the DAB's longest entry, and Randall wrote eleven other sketches, including that of Mary Todd Lincoln.
Urged by Allan Nevins, Randall devoted the early 1930s to manuscript research, leading to a scholarly synthesis in The Civil War and Reconstruction, published in 1937. The book proved to be a best-seller among specialized textbooks and was revised by Randall's student, David Herbert Donald, in 1961. The textbook finished, Randall turned to his magnum opus, Lincoln the President. The first two volumes, subtitled Springfield to Gettysburg, were published in 1945. The third volume, Midstream, mostly about the year 1863, was published in 1952 and won the Loubat Prize. Randall lived to write half the concluding volume and to draft suggestions for themes to be included in the second half. At his death, he left the suggestion that his final volume be completed either by Allan Nevins or by a young Illinois colleague, Richard N. Current, with whom Randall had become acquainted. When Nevins declined, Current accepted the responsibility and concluded the Lincoln biography in a way he deemed consistent with Randall's perspectives. Last Full Measure, published in 1955, was accorded the Bancroft Prize, a tribute to the overall biography.
...
In 1920, at the age of thirty-nine, Randall moved to Lincoln country, joining the history department at the University of Illinois. The Randalls moved into an apartment a short distance from the campus where they were to dwell for the rest of their lives, researching, writing, and entertaining students.

https://distributedmuseum.illinois.edu/exhibit/james-g-randall/

Illinois Distributed Museum

From 1920 until 1949, Randall served as a faculty member in the history department at the University of Illinois. During this time, Randall confronted the question of “Has the Lincoln Theme Been Exhausted?” His extensive list of publications covering Lincoln and the Civil War shows that his answer was “no.” …
As a historian, Randall served in leadership positions for regional and national historical associations. Randall used his platform to advocate for greater objectivity in historical scholarship. Randall believed that people should expect objectivity in history just as they did in science. To define historical objectivity, Randall used the metaphor of a judge, writing, “It is not the duty of a fair judge to issue no opinion, but to see that there is no tampering with the scales.” (Randall, 1952) Studying Lincoln became a Randall family affair. In fact, James G. Randall’s wife, Ruth Painter Randall, wrote Mary Lincoln: Biography of a Marriage. To find a memorial to the Randalls, you can travel to Gregory Hall where you can find a plaque outside of the east entrance to the building. Just a few steps north, you can visit Lincoln Hall, where Randall held his office hours for almost thirty years. In addition, you can stop by the Illinois History and Lincoln Collections of the Library to peruse the James G. Randall collection.

Demonstrating the fragility of seizure by unlawful action, even by the Federal government, the United States had its claimed title to Arlington National Cemetery voided by the U.S. Supreme Court as the land was found to have been wrongfully seized. It was subsequently purchased from the rightful heir of the owner of the land at the time of unlawful seizure.

United States v. Lee, 106 U.S. 196 (1882).

See also Bigelow v. Forrest, 76 US 339 (1869)

From the headnotes:

3. The act of July 17th, 1862, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," and the joint resolution of the same date explanatory of it, are to be construed together.
4. Under the two thus construed all that could be sold by virtue of a decree of condemnation and order of sale under the act was a right to the property seized, terminating with the life of the person for whose pffence it had been seized.
5. The fact that such person owned the estate in fee simple, and that the libel was against all the right, title, interest, and estate of such person, and that the sale and marshal's deed professed to convey as much, does not change the result.

Opinion of the Court at 351-52:

It is true, the cause in the district court was entitled, "United States against all the right, title, interest, and estate of French Forrest in and to all that certain piece, parcel, or lot of land" (describing it), but all this is descriptive not of quantity of estate, but of the subject of seizure, and that was land. The proceeding was required by the act of Congress to be in rem, and the decree condemned not the estate of French Forrest, but, using its own words, "the real property mentioned and described in the libel." The marshal was ordered to sell the said property, the boundaries of which were given in the title to the decree. Had the purchasers looked at that decree (and knowledge of it must be attributed to them), they would have seen that it was a decree of confiscation of the land, and they were bound to know its legal effect. It is therefore a mistake to argue that the plaintiff below was permitted to impeach collaterally the decree under which the marshal's sale was made, or that the judgment of the court in this case impeaches it. The argument assumes what cannot be admitted, that the decree of the district court established a confiscation reaching beyond the life of French Forrest, for whose offense the land was condemned and sold.
It has been further argued on behalf of the plaintiff in error that the plaintiff below was barred against maintaining his suit by the latter clause of the fifth section of the act of 1862, which enacted that it shall be a sufficient bar to any suit brought by such person for the possession or use of such property or any of it to allege and prove that he is one of the persons described in the section. The agreed statement of facts, in lieu of a special verdict, finds that the plaintiff is one of the persons described in said section fifth; but it immediately explains this by adding, "that is to say, he acted as an officer of the army and navy of the so-called Confederate States from and after the passage of said act until April, 1865." Was he therefore barred from maintaining the ejectment? The land was not seized or condemned for any act of his. He had no interest in it when it was declared forfeited. He could not have been heard in opposition to the decree of forfeiture. That proceeding was wholly inter alias partes. If, therefore, he is not at liberty to assert his claim, he is denied the right to his property without trial, without any procedure in due course of law, and the practical effect of the bar is to assure to the purchaser at the marshal's sale the enjoyment of the property after his right has expired, and to give him by estoppel a greater estate than he purchased. No construction of the act of Congress that works such results can be accepted. It is plainly against the true meaning of the act. We have already remarked that the act and the contemporaneous resolution must be construed together. The latter declares that the act shall not be construed to work a forfeiture of the real estate of the offender beyond his natural life. It can do this neither directly nor indirectly. The punishment inflicted upon him is not to descend to his children. His heritable blood is not corrupted.