Replies

If you'll go back and read it again, you'll see my word "ludicrous" applied to my rehearsal of DiogenesLamps' arguments -- that slaves freed by Lincoln's 1862-3 Emancipation Proclamation should have been returned to their alleged "masters" after Confederate surrenders in April 1865 and before the 13th Amendment's ratification in December 1865.

I did not say that, and that would be incorrect. The 13th Amendment averted a legal claim that the slaves were not permanently set free by the Emancipation Proclamation. Rather they would have been legally subject to returning to the status of property after the war was over.

[Rehearsal. a practice or trial performance of a play or other work for later public performance.] Break a leg, and good luck at your next performance.

As I have informed you numerous times, the war was not over until the government declared it to be over. That is still a matter of public record.

The precise dates, and the precise events, of the start and end of the civil war was addressed by the United States Supreme Court in the case of The Protector, 79 U.S. 700 (1870).
It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates, and, for obvious reasons, those of the executive department which may be and in fact was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.
The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed as marking the second. But the war did not begin or close at the same time in all the states. There were two proclamations of intended blockade: the first of the 19th of April, 1861, embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; the second of the 27th of April, 1861, embracing the States of Virginia and North Carolina; and there were two proclamations declaring that the war had closed, one issued on the 2d of April, 1866, embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20th of August, 1866, embracing the State of Texas.

As you well know, the Confederacy did NOT surrender in April 1865. You may continue to make believe that General Lee surrendered more than the Army of Northern Virginia, but the historical record dismisses your ludicrous claim. The war ended in 1866, as the U.S. Supreme Court stated in The Protector.

But any suggestion that freed slaves should be returned to slavery after April 1865 flies in the face of Lincoln's Emancipation language:
[...]
Lincoln's words were clear, "forever free", so returning such freedmen to slavery, without due process, was a practical impossibility, even if legally conceivable.

When the ANV surrendered is irrelevant to the instant legal question. The relevant end of war date is in 1866, after the adoption of the Thirteenth Amendment. It is your prejudiced thinking and blind addiction to Lincoln mythology which accounts for your statement. Lincoln's actions as Comander-in-Chief were imbued with no such authority as you attribute to them. The authority you would attribute to Lincoln is in direct conflict with the holding of the U.S. Supreme Court in Bigelow v. Forrest, 76 US 39 (1869), as cited, linked and quoted in my #485 to which you respond.

Lincoln's words were clear. It is also clear that not even Lincoln believed he had such a power. Absent lawful authority, the words are just words.

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 offence 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.

An Act of Congress has more authority than any proclamation made under the authority of the Commander-in-Chief as a war measure.

I also provided the case of United States v. Lee, 106 U.S. 196 (1882), wherein the United States actually had its claimed ownership of Arlington National Cemetery struck down in favor of its rightful owner. The seizure by a Government commission had been unlawful. Accordingly, the purchase of the land, sold by said commission, was struck down as null and void. The Government conceded and then purchased the property from the lawful owner, the heir of the lawful owner at the time of unlawful seizure.

To once again restate the position of Abraham Lincoln:

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

And, of course, as was cited and quoted in my #485, 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 an 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.

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You yourself, woodpusher, have not yet made that exact argument, you've merely said, correctly, that after the war the 13th Amendment was "a necessity", presumably to both clarify the legal status of freed slaves and to free those few still remaining to be freed in Union states like Kentucky & Delaware.

Of course, you leave out the last state to free its slaves, NEW JERSEY. You seem to have a fetish for that one.

Your presumption of the the reason for the necessity of the 13th Amendment is incorrect.

The 13th Amendment was a necessity because the proclaiming of slaves being changed from their status as property could not extend beyond the life of the person for whose offence it had been seized, and perhaps not beyond the declared end of the war.

So much for the words of the Proclamation. 13A was adopted while the war was in progress. The war ended on 20th of August, 1866 in Texas and on 2nd of April, 1866 in the other states in rebellion.

The historical facts speak for themselves and do not support your fiction.

Once again, the precise dates, and the precise events, of the start and end of the civil war was addressed by the United States Supreme Court in the case of The Protector, 79 U.S. 700 (1870).

The slaves did NOT return to a status of property between the April 1861 surrender of the Army of Northern Virginia and the December 1865 adoption of the Thirteenth Amendment because the war was still ongoing until 4/2/1866 or 8/20/1866, depending on the state.

The contraband slaves were not seized as part of anyone's estate, but as property described and condemned.

War measures apply during war. When the war is declared over, the war measures no longer apply. 13A, a sovereign act of the people, determined the legal status of all slaves and freedmen before the war was declared over. After that, no legal challenge could overcome the Thirteenth Amendment. While the seizure of other property was successfully challenged after the war was declared over, none of that property was affected by the Thirteenth Amendment.

The 13th Amendment was required before the war was declared over in order to avert any embarrassing legal challenge. Except as a war measure, property cannot be seized without giving the owner legal recourse to contest the seizure. When the state of war ends, so do the war measures, and the constitutional provision again prevails. A war measure can pretend to suspend or annul provisions of the constitution in perpetuity, but it questionable whether even a Supreme Court with five Lincoln appointees would uphold such an action of a dead Lincoln. His actions were unanimously obliterated in Ex parte Milligan 71 U.S. 2 (1866), and only a timely congressional revocation of the appellate authority of the Court averted a like opinion in Ex parte McCardle 71 U.S. 318 (1868) after the Court had heard the case but before it had issued an opinion.