Not surprisingly, other historians are weighing in on the sesquicentennial of the Emancipation Proclamation. Here is what I’ve come across so far. No doubt there is more to come. Readers: feel free to send me links to any other essays of this sort you come across.
Eric Foner, “The Emancipation Proclamation at 150: Abraham Lincoln’s turning-point” (in The Guardian). Some good thoughts on the Emancipation Proclamation from the dean of Reconstruction historians. I appreciate that Foner reminded me that the Preliminary version had a last overture to the slave states to accept gradual compensated emancipation.
Allen Guelzo, “How Lincoln Saved the ‘Central Idea’ of America” (in the Wall Street Journal). A nice piece from the most prominent proponent of the Emancipation Proclamation’s centrality in freeing the slaves. Still, I respectfully disagree with Guelzo on the practicality of returning contrabands to slavery had there been a negotiated settlement to end the Civil War. “Rendition” (as Guelzo describes it) would have been much more difficult in the Civil War given that slavery was a much bigger institution and anti-slavery sentiments much more prevalent among white Northerners than in the aftermath of the American Revolution and War of 1812. Still, this is speculative “what if” history that is of questionable value in seeking insight into the Emancipation Proclamation. (Helpful hint: if you are not a subscriber, type the title of Guelzo’s article into Google and then follow the link it provides to the story to get through the WSJ paywall.)
Brooks Simpson, “Countdown to Emancipation” (in his blog, Crossroads). Simpson issues a useful reminder that September 22 was the start not the end of the Emancipation Proclamation’s public life and that there would be much more to come on this issue. How true.
Richard Striner, “Lincoln’s Great Gamble” (in Disunion in the New York Times). Striner discusses what a political risk Lincoln took in announcing the Preliminary Emancipation Proclamation less than two months before the November 1862 midterm elections. (Tip of the hat to Albert Mackey for bringing this piece to my attention.)
Stay tuned to Civil War Emancipation for more on the Emancipation Proclamation.
Civil War Emancipation 
Good stuff. Thanks for the links. I was glad to see that Guelzo did not try to explain away Lincoln’s commitment to colonization as he often does. (He just never mentions it). No doubt, Holzer and others have written something posted somewhere today claiming that Lincoln only tried to push colonization during the summer of 62 as an insincere means of convincing white northerners to embrace emancipation.
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Professor Guelzo’s layman approach to the law does not advance the ball here. Once the Civil War started the Federal Government was legally entitled to exercise expanded powers under its “War Powers” authority. Though the parameters of the War Powers were not set out in the Constitution, the Supreme Court had recognized, well before the Civil War, that such expanded powers existed when the United States was engaged in hostilities with a foreign belligerent. United States v. Brown, 1812; Martin v. Mott, 1827; The “war powers” were governed by the international law of war, not the U.S. Constitution. And so said the Supreme Court in the midst of the Civil War. Prize Cases, March 10, 1863.
When the Civil War started, the issue was not whether such power existed, but whether it applied to the hostilities between the USA and the CSA. General Butler, Secretary of War Cameron, and others quickly came to the view (May 1861) well before Lincoln that the nature of the hostilities between the USA and the CSA were sufficient to trigger the war powers, and that the Constitution did not define the manner in which Union would wage war against the CSA. This recognition by Butler undergirded his “contraband” approach, which essentially involved a repudiation of the Fugitive Slave Clause (FSC) in the Constitution, which required fugitive slaves to be returned to their owners. Butler rightly believed that CSA states could not claim rights under a constitution of a foreign country (the USA), especially where they had abjured it.
Lincoln, on the other hand, was “puzzled” by the nature and extent of the federal government’s constitutional relationship with the CSA. Because Lincoln did not believe the CSA was legally constituted as a foreign country, he believed that the Constitution (rather than the international law of war) applied to the manner in which the USA fought the CSA. For that reason, he did not immediately embrace Butler’s “contraband” approach, and instead clung to the erroneous notion that (at least the “loyal”) residents of CSA states were protected by the federal Constitution throughout the hostilities.
Lincoln adhered to this legally erroneous view, at least in part, through the issuance of the Second Confiscation Act (SCA), in July 1862, more than 15 months into the war. It is for that reason Lincoln (and Guelzo) believed that the Bill of Attainder Clause (BAC) applied to the SCA. The SCA was, however, an exercise of Congress’s War Powers as a belligerent, not its sovereign powers under the Constitution, and so held by the Supreme Court after the War, in United States v Miller, 1871 If the BAC applied to the CSA, so too would the FSC. Likewise, by July 1862 it should have been clear to Lincoln (and to Guelzo) that slavery within the CSA was not, as Guelzo wrongly states, “a state construction, Lincoln had no authority to touch.” In truth, slavery was “touchable” by the federal government from the instant South Carolina shelled Fort Sumter. Military emancipation was a gust, not a “puff,” of wind as described by Seward. It was indeed “uttered in the first gun fired at Sumter,” though few heard it at the time.
Guelzo’s flawed approach to the SCA is also at the bottom of his July 22 missive that slaves became “de jure free” with the issuance of the EP. In fact, the EP did not change the legal status of slaves in the CSA, though it purported to do so. When the EP was issued, the legal writ of the USA did not run through the CSA. Lincoln well knew no court in the CSA would enforce the EP. For that very reason he described the EP as a “paper bullet,” and that its efficacy depended upon gaining “victories over our enemies.” For legal purposes, the CSA was more like a foreign belligerent than a band of rebellious states. Lincoln well recognized that the emancipatory efficacy of the EP depended on the soft collision between fleeing and stationary slaves, and the advancing Union army. Thus, after the war the Supreme Court and other courts which addressed the issue suggested or held that emancipation occurred not upon the issuance of the EP, but upon federal forces “reestablishing “ control over insurgent areas. Texas v. White, 1868.
Lincoln’s support for the 13th Amendment did not, as Guelzo wrongly states, reflect a “lot of jurisprudence which called into question the very existence of these ‘war powers.’”, or Lincoln’s purported concern about any such jurisprudence. This is pure fiction by Guelzo. All of the Supreme Court jurisprudence through that time, including Brown, Martin, the Prize Cases, and Luther v. Borden, 1849, robustly supported the legality of War Powers and augured against judicial review of legislative and executive relating to the use of military force. See also Mitchell v Harmony, 1851.
Contrary to Guelzo and his disciples, Lincoln was concerned not with the legality of the EP as an exercise of the war power. Rather, his only legal concern, was that once the war ended, the legal basis for the EP would evaporate, thus jeopardizing the legal status of slaves freed under the EP. It was for that reason, as well as a desire to make good on his promise to give permanent freedom to enslaved blacks in the South, especially those who had fought in the war, that he so energetically sought passage of the Thirteenth Amendment. Lincoln stated it would be a “breach of faith” to do otherwise.
I have not read the books by Slotkin and Styple cited by Guelzo in support of his assertion that Lincoln “shinnied out on the legal limb to invoke the ‘war powers’ to emancipate because he had become anxious that McClellan was contemplating a military intervention … which would have wiped out all chance of emancipation.” But I am not aware of any support for the proposition that McClellan’s (transparent) scheming (probably treasonous) was even a contributing factor to Lincoln’s decision of whether and when to issue the PEP. All of the available evidence is that the primary moving force for the timing of issuance of the PEP was the announcement by the Border State representatives rejecting Lincoln’s proposal for gradual, compensated emancipation, with the possibility of colonization. Likewise, there is no evidence that Lincoln “shinnied out on a legal limb,” or thought he was, when he issued the PEP. This makes for a good story, but it is simply not true. By the time he issued the PEP all the evidence points to the fact Lincoln thought he was on very solid legal ground in exercising his executive war powers.
I seem to have become a bee in Professor Fabrikant’s bonnet (he and I have written and responded to each other on the pages of the Howard Law Journal, even attended the same symposiums), and to a lesser extent in the bonnet of Donald Shaffer’s blog. I think I know the reason for that, but more on that score in a minute.
In the most general sense, Professor Fabrikant seems to assume that it quickly became self-evident that the Civil War was being waged between two belligerents, and that therefore the Union was perfectly at liberty to employ “war powers” and emancipate slaves from the start. I think this begs the question. Congress never recognized any belligerent status in the Confederacy except as issues of concession (as in prisoners-or-war) never declared war on the Confederacy (its most severe action was a non-intercourse act), and proposed treating Confederate privateers as pirates and even commissioned Confederate naval vessels as actionable (hence, the Alabama Claims). Lincoln never recognized the Confederacy as a belligerent power, either, and always invented circumlocutions in official documents to avoid even using the name, Confederate States of America. Above all, Lincoln had no guarantee that the federal courts would see matters that way until 1863, and in the event, the decision in Prize Cases (which embraced a both/and conclusion about sovereignty and belligerency) was delivered on the back of a narrowly-divided U.S. Supreme Court. That is the fundamental disagreement between myself and Professor Fabrikant, and all the other points of disagreement flow downstream from that, beginning with the “war powers.”
1. Professor Fabrikant seems to assume that a clear doctrine of “war powers” existed in U.S. law before 1861. If Professor Fabrikant can find some statutory formula for this other than the Militia Acts of 1792 and 1795, he will do constitutional historians a great favor. It was not clear whether the U.S. military even had martial law authority prior to the Civil War: in 1856, former Attorney General Caleb Cushing wrote that “Martial law is a thing not mentioned by name, and scarcely as much as hinted at, in the Constitution and statutes of the United States. I say, we are without law on the subject.” And Lincoln’s invocation of the “war powers of the government” (in his July 4, 1861, address to the special session of Congress) brought forth a rapid-fire of rebuttals from a battery of jurists, as well as from John J. Crittenden. “The Congress of the United States had no power to legislate upon the subject of slavery within the States,” Crittenden insisted, “Absence of all power of legislation in time of peace must be the absence of the same power at all times. You have no power, by your Constitution, to touch slavery at all.” Far from recognizing the “parameters of the War Powers,” U.S. v. Brown (1812) actually militates against them, by denying authority for the confiscation of non-contraband property even when owned by an enemy belligerent. The same is true of Mitchell v. Harmony (1851), which required compensation for the seizure by the U.S. military of civilian property owned by U.S. citizens. And any powers the president was supposed to possess by virtue of his constitutional title of Commander-in-Chief were limited by Fleming v. Page (1850) to purely military affairs. Hence, long as the Confederacy was construed as a domestic rebellion rather than a co-belligerent, Lincoln was by no means “legally erroneous” in seeing seizures of civilian property as a serious legal obstacle to wartime emancipation.
2. Mr. Fabrikant’s assertion that “the EP did not change the legal status of slaves in the CSA” would have come as a surprise to the freedpeople who testified before the Joint Committee on Reconstruction in 1866 (Report of the JCR, part 2, pp. 54-60) that the Proclamation was what made them free, as well as to the defendants in the cases Mark Neely has cited of prosecutions of white Southerners attempting to assert ownership of their ex-slaves. Mr. Fabrikant asserts that “no court in the CSA would enforce the EP.” I know that; Lincoln knew that; that is why the EP is issued as a military order, not as a directive to the courts of the CSA. In Lincoln’s definition, there were no “courts” in the CSA. Of course, this created no end of practical grief after the war, when people began wondering whether debts, marriages and the like contracted under state law while that state was in rebellion were still enforceable. The USSC had to invent some unusual expedients to cover the “normal” operations of the courts while denying the implications of larger legal contracts (Confederate securities, for instance).
3. Prof. Fabrikant dismisses out-of-hand as “pure fiction” (and quite a heart-warming characterization that is) any assertion of mine that Lincoln pressed for the 13th Amendment because he doubted whether his “war powers” would survive scrutiny in the federal courts. But this is not what Lincoln said. “I cannot recall my proclamations,” he declared to Duff Green in 1865, but “whether they are binding or not will be a question for the courts.” To Gustavus Myers, he expressed the same uncertainty: “confiscation of property” was “a question he must of course leave to the courts to decide.” And to Alexander Stephens, he said that the Proclamation’s status “was a judicial question. How the courts would decide it, he did not know and could give no answer. His own opinion was that as the proclamation was a war measure and would have effect only from its being an exercise of the war power, as soon as the war ceased, it would be inoperative for the future. It would be held to apply only to such slaves as had come under its operation while it was in active exercise. This was his individual opinion, but the courts might decide the other way and hold that it effectually emancipated all the slaves in the states to which it applied at the time. So far as he was concerned, he should leave it to the courts to decide. He never would change or modify the terms of the proclamation in the slightest particular.” It was for this reason that Lincoln described the 13th Amendment as the “king’s cure for the evil,” because it put emancipation beyond all questioning by the courts, and destroyed the entire institution, rather than simply emancipating certain slaves. On Professor Fabrikant’s logic, the Confiscation Acts and the war powers should have rendered the amendment unnecessary.
4. Professor Fabrikant may not be aware of the influence on Lincoln’s decision to reach for a “war powers” proclamation of the threat of a military intervention by Gen’l McClellan, but it was very much a reality to Lincoln and his administration and Congress. If, in fact, he does not regard McClellan’s Harrison’s Landing letter as a direct ultimatum to Lincoln not to issue the rumored proclamation, then he must find some other cause for Lincoln’s announcement to Welles and Seward, upon his return from Harrison’s Landing, “that a change of policy in the conduct of the war was necessary.”
I suspect, however, that for many students of emancipation the real issue here is one of agency. If, as I stand accused, I believe that Lincoln and his Proclamation actually effected something, I must somehow also be gulity of denying credit to other actors in the Emancipation story – to the armies, for instance, as enforcers; and to the slaves, liberating themselves from bondage. I am perplexed by this Manicheanism. I do not believe that emancipation was merely a matter of Lincoln waving his hands and uttering legal magical words. The Proclamation would never have had any force had not the Union armies carried emancipation on their banners into the South; nor do I want to minimize the various ways in which the slaves themselves contributed to emancipation, by destabilizing the institution through flight and by exciting Northern anger at slavery through their use as Confederate labor. But at the same time, I do not understand the urge to diminish Lincoln’s role. All of the de facto freedoms won by the armies and the slaves could have been rolled-back – perhaps not successfully or entirely, but the example of George Robertson is at least one high-profile instance of the energy with which slaveholders would have tried to retrieve fugitives apart from the de jure freedom pronounced by the Proclamation. (Donald S. dismisses this out-of-hand as a possibility; I do not think people in 1862 had that luxury, and especially not with the memory of the energy with which slaveholders pursued the rendition of fugitive slaves by the British after the Revolution and the War of 1812). And by the same token, Lincoln’s de jure action in the proclamation would have meant nothing had not the Union army enforced it, and blacks embraced it as their own. We are not being true to either common sense or legal fact to suggest that the promotion of black agency in acquiring de facto freedom is threatened by admitting that Abraham Lincoln established the de jure basis for it, or that as Commander-in-Chief, he was the only one in a position to do so. The Emancipation Proclamation was neither the handiest or the most glamorous aspect of emancipation; but I do not think it wise to suggest that it was dispensable.
Hi Allen. Many thanks for contributing to this discussion. I am highly appreciative of you taking the time to respond to Prof. Fabrikant.
Best,
Don
Well, there he goes again. Professor Guelzo resurrects positions which fly flatly in the face of almost 150 years of case law and statutory law, and, most importantly, common sense. See my Reply to Professor Guelzo, 50 How. L.J. 417 (2007).
Professor Guelzo misapprehends the legal context within which the Civil War was fought, and for that threshhold reason he fails to grasp the legal, including Constitutional, issues surrounding the Preliminary Proclamation, the Emancipation Proclamation, and the important statutes enacted by the Civil War Congress during the Civil War. Congress did not formally declare war against the CSA, but it is simply wrong to argue that Congress did not treat the CSA as a belligerent “except as issues of concession” (whatever that means). At its July 4, 1861 extraordinary session, the Civil War Congress enacted legislation which had the purpose and effect of treating the CSA as a belligerent, including most importantly, authorizing the interdiction of trade and intercourse between the USA and the CSA, authorizing the imposition of a blockade against the CSA, and retroactively affirming Lincoln’s prior acts, proclamations and orders. The Supreme Court treated all of that as a declaration of war in the Prize Cases, and there is no reason for Professor Guelzo to ignore that. Subsequent legislation also treated the CSA as a belligerent, including the The First Confiscation Act, 1861`; the Additional Article of War, 1862; and the Second Confiscation Act, 1862, and the Supreme Court upheld the Confiscation Acts as exercises of war, not sovereign, power.
The point being missed by Professor Guelzo is that once the Civil War began, the law of war, not the constitution, governed the manner in which the Union fought the CSA. We know that the constitution did not govern because, for example, the constitution did not permit the federal government to take any action against slavery in states where it existed, but shortly after the war started Congress enacted many statutes which did just that. So too did the Union military, most famously in the form of General Butler’s refusal to return slaves to Confederate slaveowners on the ground they were “contraband.”
The cases cited by Professor Guelzo do not, as he claims, show that the international law of war did not apply at the inception of the civil war. Most importantly, U.S. v. Brown, 1814, does not, as Professor Guelzo claims, “actually militate against” this conclusion. In Brown Chief Justice Marshall did not hold that the law of war did not apply; rather he held that it did apply, but that the war power had not been properly exercised (e.g., at 12 U.S. at 125: “war gives the right to confiscate, but does not itself confsicate the property of the enemy ….). In any event, as discussed below, the Prize Cases, 1863, settled the manner, holding that the international law of war applied from the outset of the Civil War.
Professor Guelzo seems to argue that the law of war did not apply during the Civil War because neither Congress nor Lincoln ever formally recognized the CSA as a belligerent. Of course they did not do that; the war was being fought for the purpose of keeping the CSA from gaining the status of a “sovereign,” and calling it a “belligerent” would imply the CSA was a sovereign country. But simply because Congress and Lincoln did not CALL the CSA a sovereign/country, did not mean that they did not treat it that way. The Supreme Court said in the Prize Cases that the “insurrection” was a “war,” and the CSA was a “belligerent” regardless whether it was so labelled by the Union, because how the CSA and the insurrection were “baptized” did not control the question of whether the constitution or the law of war applied to the hostilities. The Union’s failure to call the CSA a belligerent was an entirely correct political decision, but it did not preclude the Union from treating the CSA as a belligerent for legal purposes. This is the heart of the Prize Cases.
Professor Guelzo wrongly implies that in the Prize Cases the Court was closely divided on the question of whether the law of war or the constitution applied. In fact, none of the Justices disagreed with the holding that the law of war applied; the disagreement was limited to whether Congress could retroactively validate Lincoln’s unilaterally exercising war powers, including imposing a blockade on the CSA while Congress was out of session.
Perhaps the best example demonstrating that the law of war did, and indeed had to, apply at the inception of the Civil War was General Butler’s invocation of the “contraband” theory. Butler’s “contraband” theory is predicated on the notion that the constitution does not apply to the CSA. If the constitution DID apply, Union troops would have been constitutionally obligated to return the fugitive slaves to their CSA masters throughout the war. This would have been like requiring the Union to restock the CSA’s military warehouses, thus converting the constitution into a “sucide pact.” General Butler avoided that dilemma by stating, correctly so (despite Professor Guelzo’s illogic to the contrary) that the constitution did not apply to Virginia slaveowners, because Virginia belonged to a country other than the USA, and could not claim rights under the USA constitution. Secretary of War Cameron endorsed Butler’s approach, and did so only after consulting Lincoln. At the time Butler acted, Congress had not enacted legislation authorizing or requiring the military not to return fugitive slaves to the CSA, yet there can be no serious argument that Butler acted incorrectly. Butler’s actions were contrary to the letter and spirit of the (Fugitive Slave Clause) of the constitution, but were well within the law of war.
Professor Guelzo creates a misleading impression regarding Lincoln’s concerns about the legality of the EP. Lincoln was NOT concerned about its legality as a war measure. He affirmatively believed it was a valid war measure. Lincoln’s only concern, was whether it would have any legal vitality once the war ended. Hence his energetic support for the 13th amendment.
Professor Guelzo misunderstands my assertion that “the EP did not change the legal status of slaves in the CSA.” This was said in response to Professor Guelzo’s erroneous statement that the EP had de jure effect. It did not. When the EP was issued the Union did not have legal dominion over the CSA. For that reason, by definition the EP did not have de jure effect within the CSA. And, contrary to Professor Guelzo, this is NOT why Lincoln issued the EP as a “military order, not a directive to courts.” Neither the President nor the Commander in Chief, have authority to issue directives to courts. The EP was issued as a military order because Lincoln was primarily, though not exclusively, issuing an order to Union troops directing them how to treat fugitive slaves. Despite Professor Guelzo’s confusing treatment of the matter, the undeniable fact is that all courts which dealt with the issue did NOT treat the EP as granting de jure freedom to fugitive slaves. The secondary, non-legal sources cited by Professor Guelzo do not change that all important, truly self evident, legal conclusion.
Professor Guelzo advances the novel, and quite new, argument that Lincoln informed Welles and Seward of his decision to issue an emancipation proclamation on July 13, 1862 because of an “ultimatum” issued to him by General McClellan on July 7, 1862, in his Harrison’s Landing letter. This argument does not appear in Guelzo’s seminal, highly acclaimed 2004 book on the EP or in his 2007 response in the Howard Law Journal (50:397) to my 2006 article therein (49:313). The argument is “novel” for several reasons: first, it is surprising Guelzo would rely upon a letter which acknowledged the very thing which Guelzo continues to deny: “This rebellion has assumed the character of a War.” The double irony is that this comes from the, rightly, despised McClellan.
Second, McClellan’s letter does not contain an “ultimatum” of any kind to Lincoln. True enough MdClellan voices strong opposition to the abolition of slavery, but he states: “Slaves contraband under the Act of Congress, seeking military protection, should receive it.” There is no suggestion that McCllelan is about to disobey the law; in fact,he is embracing it! There is nothing threatening in the letter. Third, there is no documentary or other support for the proposition being pressed by Guelzo that McClellan’s letter hastened Lincoln’s resort to emancipation, and Guelzo cites no support for this argument. Indeed, Guelzo’s speculation is contrary to every explanation offered by Lincoln as to how and why he tilted to emancipation in July 1862. The most comprehensive explanation offered by Lincoln is contained in his April 1864 letter to Albert Hodges, which attributes the timing of his decision to the rejection of his emancipation proposal by the Border State representatives on July 14, 1862. Eight days later Lincoln tenders a draft of the PEP to his cabinet.
Finally, Guelzo bemoans “the urge to diminish Lincoln’s role.” I have no such urge. I am looking for legal truth, and if that results in a diminution of Lincoln’s role so be it. It is wrong for Guelzo to ignore legal truths simply because they may diminish Lincoln’s role. To be clear, Lincoln played in an indispensable role in securing emancipation, but Guelzo seems to have willfully placed Lincoln on a pedestal, and deliberately ignored the contributions of so many others, including the contrabands and the Civil War Congress.
From having met him at an Abraham Lincoln Institute symposium, I know that Professor Fabrikant is a knowledgeable and well-intentioned commentator on his specialty, which is health care, financial services, energy and defense issues, and a partner of Manatt, Phelps & Phillips, a distinguished K Street firm in the District of Columbia. But on these issues, I believe that he is simply, plainly and obviously wrong. And it is not only me he questions, but Stephen Neff, John Fabian Witt, Mark Neely, Jonathan White, R.B. Murray and Herman Belz. There is no – repeat, no – evidence, nor is there any moment, in which the U.S. government ever recognized the Confederate States as a belligerent. Here is Neff: “The furthest that the federal executive was willing to go was to conduct the land hostilities as if the conflict was a true war. In other respects, the crisis would be regarded as an internal rebellion, to which the ordinary criminal laws of the country could (at least in principle) be applied. …Its resort to belligerent methods was a matter of free choice and not of legal obligation.” (That, by the way, is what is meant by ‘issues of concession’). Professor Fabrikant seems to believe that if Lincoln waged what looked like war, then it must have been a war (ie. between two belligerents). This is precisely what every apologist for the Confederacy asserted, and asserts to this day; but it was also precisely what the Lincoln administration tried and twisted at every point to deny. Perhaps what Professor Fabrikant intends by this is that the Lincoln administration did not protest its disbelief in the belligerent status of the Confederacy in a seamlessly logical or coherent way (and on that point, I do not disagree); but that is an entirely different matter from the historical fact that this is what they adopted as their policy, warts and all.
1. Professor Fabrikant states that “perhaps the best example demonstrating that the law of war did, and indeed had to, apply at the inception of the Civil War was General Butler’s invocation of the ‘contraband’ theory. Butler’s ‘contraband’ theory is predicated on the notion that the constitution does not apply to the CSA. If the constitution DID apply, Union troops would have been constitutionally obligated to return the fugitive slaves to their CSA masters throughout the war.” Well, as we all know, Union troops DID return fugitive slaves (see Halleck’s Gen. Orders no 1, 2O.R., 1:247-249) until — as Professor Fabrikant himself has pointed out elsewhere — Congress finally acted to alter both the Articles of War and the federal militia statutes. Butler’s “contraband” decision was unique to Butler; when Cameron attempted to endorse it in his annual report to Congress, Lincoln yanked the report and dispatched Cameron to a wintry diplomatic post at the court of the Tsar. And the Confiscation Acts were peculiar pieces of legal reasoning which struggled to justify confiscation of slave “property” as “lawful subject of prize and capture” – or, as Lyman Trumbull explained it, as prizes under Admiralty law, as though the law of the sea could be transferred to law on land; the Second Confiscation Act was signed by Lincoln only after Congress adopted a resolution clarifying that it would not “be so construed as to work forfeiture of the real estate of the offender beyond his life.” Even then, slaveholders were permitted to retain their slave “property” by taking a loyalty oath, and the overall proceedings under the terms of the Confiscation Acts netted a meagre $300,000.
2. It is not clear, under the existing understanding of international law in the 1860s, that confiscation of slave “property” was permitted even between belligerents. Wheaton stated that “Private property on land is…exempt from confiscation with the exception of such as may become booty…and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of unqualified conquest of the enemy’s territory.” And Professor Fabrikant ignores the provision in Brown v. United States (1814) which states that the “right to the debts and the property is only suspended during the war and revives with the return of peace.” When seizing the property of civilians, Mitchell v. Harmony (1851) added that, in cases of confiscation, “the government is bound to make full compensation to the owner.” (And Harmony was in fact awarded $90,000 in compensation by the USSC).
3. Professor Fabrikant believes that “the CSA was a ‘belligerent’ regardless whether it was so labelled by the Union, because how the CSA and the insurrection were ‘baptized’ did not control the question of whether the constitution or the law of war applied to the hostilities.” To which Neff (and not I) replies: “This too may seem an abstruse issue. But a host of harshly practical consequences flowed from it.” Indeed they did.
4. Professor Fabrikant believes that I create “a misleading impression regarding Lincoln’s concerns about the legality of the EP. Lincoln was NOT concerned about its legality as a war measure.” And this, after I have strung together a catena of Lincoln statements, expressly stating that concern.
5. Professor Fabrikant believes that I advance “the novel, and quite new, argument that Lincoln informed Welles and Seward of his decision to issue an emancipation proclamation on July 13, 1862 because of an ‘ultimatum’ issued to him by General McClellan on July 7, 1862, in his Harrison’s Landing letter. This argument does not appear in Guelzo’s seminal, highly acclaimed 2004 book on the EP or in his 2007 response in the Howard Law Journal (50:397) to my 2006 article therein (49:313). Professor Fabrikant should re-read my little opus on the Emancipation Proclamation. He will find a surprise there.
6. Professor Fabrikant believes that “McClellan’s letter does not contain an ‘ultimatum’ of any kind to Lincoln.” I stand amazed at this: that a letter which threatens the Commander-in-Chief with the disintegration of his armies in the event of emancipation cannot be construed as a threat. This makes MacArthur’s defiance of Truman look like a cakewalk. Indeed, if Lincoln believed that McClellan’s demand that he recognize the rebellion as a “war” was perfectly in harmony with Lincoln’s views, it is mystery to me why Lincoln did not go back to Washington and ask Congress to convert matters into a declaration of war against the Confederacy. Instead, he went back to Washington and proceeded to move the Army of the Potomac out from under McClellan’s command.
7. Professor Fabrikant believes that the Hodges letter identifies the “rejection of his emancipation proposal by the Border State representatives on July 14, 1862” as the real trigger for the EP, because “eight days later Lincoln tenders a draft of the PEP to his cabinet.” Professor Fabrikant assumes that the Hodges letter is a comprehensive time-line of his decision-making. That is, of course, an assumption. But let us take the operative words from that letter: “in March, and May, and July 1862 I made earnest, and successive appeals to the border states to favor compensated emancipation, I
believed the indispensable necessity for military emancipation, and arming the blacks would come, unless averted by that measure. They declined the proposition; and I was, in my best judgment, driven to the alternative of either surrendering the Union, and
with it, the Constitution, or of laying strong hand upon the colored element.” Notice that between the moment when the Border State congressional delegations “declined the proposition,” and the moment when Lincoln decided to issue the Preliminary EP, he “was in my best judgment, driven to the alternative of either surrendering the Union, and with it, the Constitution, or of laying strong hand upon the colored element.” Driven by whom? The Border State congressional delegations? Lincoln returns from Harrison’s Landing on July 9th; he makes his last appeal to the Border State congressional delegations on July 12th; he tells Seward and Welles that he intends to resort to an emancipation proclamation on the morning of July 14th; he does not receive the responses of the Border States’ delegations (both majority and minority reports) until July 15th. Lincoln, in other words, had already made his decision before he fully knew what the response of the delegations was. In this environment, tell me why the proximity of his meeting with Border State delegations’ entirely trumps the proximity of the Harrison’s Landing Letter.
One last footnote: in the Hodges letter, Lincoln asserts that he issued the EP because “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.” In other words, he was operating as a sovereign in dealing with the Confederacy, not as a belligerent.
Professor Guelzo’s recent salvo largely regurgitates arguments to which I have previously responded. See volume 50 of the Howard Law Journal. I respond below to some of Professor Guelzo’s new arguments, and attempt to summarize more concisely my legal arguments to better guide the reader.
I am not an apologist for the Confederacy. Guelzo makes that feckless accusation because I argue that the CSA was a sovereign state for purposes of determining whether the international law of war applied to it. This was so held by the Supreme Court in the Prize Cases, with Taney in the minority. Does that make Taney a Union sympathizer, and the Northern majority CSA sympathizers? And what of Justice Scalia, who more recently said: ““citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.” Hamdi v. Rumsfeld, 542 U.S. 507, 575 n.5 (2004) (Scalia, J., dissenting). Is he too an apologist for the Confederacy? And what of the first Justice Harlan, who wrote in Ford v. Surget, 97 U.S. 594, (1878) that “The numerous decisions of this court, beginning with the Prize Cases … and ending with Williams v. Bruffy and Dewing v. Perdicaries” make the following propositions “settled”:
1. the areas within the CSA were “enemy territory, and all the people residing within such district were, according to public law, and for all purposes connected with the prosecution of the war, liabile to be treated by the United States, pending the war and while they remained within the lines of the insurrection, as enemies, without reference to their personal sentiments and dispositons.” (p. 604)
3. the “Confederate army was … conceded … such belligerent rights as belonged under the laws of nations to the armies of independent governments engaged in war against each other,” thus “exempting ‘them from liability for acts of legitimate warfare.’” (p. 605). Based on these principles the Court held that a Confederate soldier who burned cotton to keep it from coming into the possession of the Union army was not liabile in damages to the owner of the cotton. Wil Guelzo now accuse The First Mr. Justice Harlan, who so famously espoused the “color blind constitution” in Plessy v. Ferguson, a Confederate sympathizer? Name calliing is no substitute for legal analysis.
Guelzo resorts to name calling because he wrongly conflates the legal need for labelling the CSA a foreign country (to justify the blockade and other extra-constitutional measures) with the political need to refuse to acknowledge the CSA as a foreign country. The legal justification for calling the CSA a foreign country also does not imply whatsoever that the CSA states were constitutionally correct or justified in purporting to secede from the Union and to set up their own country. This is at the heart of the Prize Cases.
Guelzo takes me to task for disagreeing with him and other eminent historians, but he is in the more uncomfortable position of disagreeing with the Supreme Court without even acknowledging it. Inexplicably, Guelzo makes no mention of the Prize Cases in his rebuttal; that is so because his position is totally at odds with that case.
Guelzo is correct that even after Butler announced the contraband theory, many Union generals continued to return fugitive slaves to their Confederate owners. But that is beside the point. My point is that the application of the law of war meant that the Union was legally justified in not discharging their obligation to return slaves under the Fugitive Slave Clause, not that the law of war prohibited them from doing so. Lincoln’s post-Butler decision to allow many of his generals, including Halleck and McCllellan, to return fugitive slaves reflected a (quite sensible) political decision on his part, not, as Guelzo implies, a legal conclusion that the Union was constitutionally obligated to continue to return slaves during the pendency of the war.
Guelzo claims that Lincoln’s administration did not endorse Butler’s position, and that when Secretary of War Simon Cameron tried to do so Lincoln sent him to Russia. This is a misleading half truth. Cameron twice wrote to Butler supporting his “contraband” approach to fugitive slaves. Lincoln did wind up dismissing Butler, and sending him as ambassador to Russia. But Lincoln’s move reflected a number of factors, including multiple and serious accusations of corruption against Cameron, and that Cameron had created a draft report to Congress endorsing emancipation, non-return of fugitive slaves, and arming of blacks.
Guelzo creates the inaccurate impression that Butler’s “contraband theory” was “unique” to Butler, and that Lincoln rebuffed Secretary of War Cameron’s efforts to embrace it. It is true that Lincoln refused to embrace on an army-wide basis Butler’s refusal to return fugitive slaves, but Lincoln did not countermand orders issued by other generals which followed Butler’s lead. It is worth mentioning, however, that Lincoln’s failure to universalize Butler’s approach was contrary to the First Confiscation Act, August 1861, which had essentially endorsed Butler’s approach, and resulted in Congress’ March 1862 enactment of the Additional Article of War, which criminally barred Union naval and army personnel from returning fugitive slaves to CSA owners.
Guelzo suggests, quite wrongly, that international law in the 1860’s precluded the confiscation of slaves of citizens of a belligerent because slaves constituted private property, and he wrongly relies on Brown v. U.S. and Mitchell v. Harmony in support of his position. First, Lincoln himself said the opposite: “The most than can be said, if so much, is that slaves are property. Is there — has there ever been — any question that by the law of war, property, both of enemies and friends may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy.” Lincoln’s August 26, 1863 Letter to Conkling. Is Guelzo distancing himself from Lincoln on this all important issue? If so, it would be a first! Second, the Lieber code explicitly provided for that fugitive slaves were “immediately entitled to to the rights and privileges of a freeman,” and cannot be returned to bondage. Lieber Code section 43; see also section 42. Third, the Lieber Code was thought then, and now, to codify the international law of war. Wheaton’s 1866 international law treatise said: “If the occupying state holds slaves the slaves merely change master;if it does not, the slaves are emancipated.” (p. 368). Neither Brown nor Mitchell dealt with the emancipation of slaves.
In closing, I must reiterate my disbelief in Professor Guelzo’s continuing adherence to his assertion that McClellan’s July 7, 1862 Harrison Landing Letter was the moving force behind Lincoln’s telling Seward and Welles on July 14 (actually Sunday, July 13) he had decided to issue an emancipation proclamation. Guelzo cites no documents which suggest such causation, despite the plethora of documents by Lincoln which explain why he eventually adopted emancipation (none mentioning McClellan or his HL Letter).
Guelzo argues that the Border State rejection of his emancipation proposals could not have been the moving force because Lincoln was not aware of the Border State rejection until July 15, but had told Seward and Welles on July 13 of his decison to issue an emancipation proclamation.
Thus, Guelzo implies, Lincoln was unaware of the Border State rejection when he so informed Seward and Welles on July 13 of his decision to issue an emancipation proclamation. This is wishful thinking. The Border States representatives had previously rejected Lincoln’s emancipation proposals, and had expressed strong opposition to emancipation during the Spring-Summer 1862 debates on the Second Confiscation Act. Lincoln was a consumate politician, and he had his ear to the ground at Capital Hill. He surely knew what was coming from the Border State representatives when he spoke with Seward and Welles on July 13. If Guelzo has any doubts about Lincoln’s being entirely plugged in to Capital Hill he needs to see the Lincoln movie.
Guelzo claims the HL letter “threatens the CIC with the disintegration of his armies in the event of” an emancipation proclamation. I see no such threat in the letter. McClellan does indeed express the opinion that “a declaration of radical views, especially upon slavery, will rapidly disintegrate our present armies,” but this was sometimes suggested by Lincoln himself as a reason for delaying issuance of the Proclamation. Lincoln thought issuance of an emancipation proclamation would not simply lead to defections within the army, but might also lead to large scale defections of entire states. If Lincoln had indeed interpreted McClellan as having made a “threat,” surely he would have removed him forthwith. Instead, of firing McClellan Lincoln added to his otherwise important responsibilities.
Guelzo says that when Lincoln returned from meeting with McClellan in early July, prior to receiving McClellan’s letter, Lincoln, instead of asking Congress to issue a formal declaration of war (per McClellan’s letter) he “proceeded to move the Army of the Potomac out from under McClellan’s command.” In fact, Lincoln did not remove McClellan until early November, and during that 4 month period Lincoln allowed McClellan to lead siginificant battles (including Antietam) and actually added to McClellan’s responsibilities (asking him on September 2, 1862 to take over command for the fortifications and troops of the capital) rather than diminishing them. These are hardly the markers of a president worrying about insubordination or treason from his most important general.
Guelzo’s characterization of the HL as containing an ultimatum is belied not only by Lincoln’s subsequent treatment of McClellan, but also by the fact that the letter actually endorses “manumission” of slaves, including “in Missouri, perhaps in Western Virginia and possibly even in Maryland.” McClellan states that “the expediency of” military manumission in these states (which he calls a “military measure”) is only a matter of time.” When read in its totality, the HL does not remotely approach being an “ultimatum.”
I think that Professor Fabrikant may be the only person alive who believes that the Harrison’s Landing letter was anything but a piece of monumental defiance on McClellan’s part. Professor Fabrikant’s see-no-evil reading of the letter is a marvel; Professor Fabrikant seems unaware that McClellan initiated two overtures to Robert E. Lee (one during the Peninsula Campaign, the other immediately after the battle of Antietam) with a view to establishing a unilateral armistice, and that between October 24 and October 8, his generals repeatedly urged him to march on Washington and depose the Lincoln administration. Lincoln did not remove McClellan as commander of the Army of the Potomac — what Professor Fabrikant misses is that Lincoln removed the Army of the Potomac from under McClellan, and dispatched as much as he could to the command of John Pope’s Army of Virginia. Lincoln turned to McClellan after 2nd Bull Run out of raw necessity, and over the protests of three members of his cabinet who demanded that McClellan be court-martialled. Professor Fabrikant deserves our respect for the seriousness with which he takes legal questions during the Civil War, and as such, he is part of a recent and rapidly-expanding literature on this subject. In this instance, however, I simply believe that he is wrong.
Professor Fabrikant seems to have embraced the peculiar notion that the “laws of war” permitted the seizure of property by belligerents in war. This is exactly what the “laws of war” did not do, as stated in the prevailing international law texts of the day (Wheaton, Halleck, Woolsey) and in Mitchell v. Harmony and Brown v. United States. (Professor Fabrikant cites the Lieber Code and an edition of Woolsey to the contrary; but notice that both the Code and the edition of Woolsey date from 1863 and 1866; in other words, on the other side of the EP, and therefore of no help to Lincoln in asserting the EP’s constitutional standing at any time before. Professor Fabrikant seems to believe that citing Hamdi v. Rumsfeld settles matters which were pending in 1862; and had Lincoln known of these decisions, I am sure it would have greatly relieved his anxieties, and I hope I am not being overly obvious when I say that Lincoln could not know that the wind would blow in that direction in 1862. To the contrary, the Declaration of Paris (1856) was a major step toward limiting even the interception of property and ships as prizes at sea, and the United States held back from signing the Declaration because Sec’y Marcy believed it did not go far enough toward the goal of “free seas, free ships.” As Richard Cobden wrote in August of 1856, “The Americans must be backed up in their view of exempting private property at sea from spoilation. It is a most important principle—tends to rob the spoiler of his prey & prize money.—Hurrah for any thing that tends to make war a mere duel between professionals, for it will make the calling less profitable & therefore less popular.” We are not now talking about merely a ban on the stoppage of neutral ships by a blockade, but an end to all notions of prize and capture.
Now let me say — and please, for just one last time — the U.S. government never recognized the Confederacy as a belligerent, except in those cases where it acted “as a grace or granted as a necessity” (prisoners-or-war, for instance). Prize Cases decided that blockade was a legitimate instrument of war-making on the South, but denied that in so using blockade, any recognition of Confederate belligerency was being conceded. Here is the key passage from Prize Cases: “This argument rests on the assumption of two propositions, each of which is without foundation on the estab-lished law of nations. It assumes that where a civil war exists, the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. …Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has introduced to mitigate the rigors of war cannot be a subject of complaint by the party to whom it is accorded as a grace or granted as a necessity.” Professor Fabrikant is, in this instance, aligning himself with Justice Nelson’s dissent (in which Taney joined).
The idea which Professor Fabrikant articulates above — that “the Union did not have legal dominion over the CSA” at the time of the EP is precisely the question at issue; confiscation could only be legal if the war was being conducted by a sovereign as a police action against insurgents, and only then as a temporary seizure as contraband of war. Otherwise, the constitutional ban on bills of pains and penalties would render it unconstitutional. To free the slaves required a “war powers” proclamation — and the difficulty for Lincoln was the risk a “war powers” proclamation ran of being construed as a recognition that the Confederates were indeed belligerents, and not merely insurgents. If Professor Fabrikant does not believe that this was a risk, he should argue, not with me, but with Richard Henry Dana, the government’s lead counsel in Prize Cases, who saw the possibility of the Supreme Court denying Lincoln these “war powers” as very real indeed: “Contemplate, my dear sir, the possibility of a Supreme Court deciding that this blockade is illegal! What a position it would put us in before the world whose commerce we have been illegally prohibiting, whom we have unlawfully subjected to a cotton famine and domestic dangers and distress for two years! It would end the war, and where it would leave us with neutral powers it is fearful to contemplate!” The EP, as a “war powers” measure, was in exactly the same position as the blockade; had Prize Cases been decided, by the change of a single vote, other than as it was, the EP would have fallen with it, or next after it. Doubtless, this would have created quite a legal mess on every hand; but it would not be the first or last time the USSC has done so.
Thank you, Prof. Guelzo, for your reply. If everyone is agreeable, I’d appreciate it if we could at this time draw this conversation to a close for now. Hopefully, there will be an opportunity in the future to revisit it.
Best wishes,
Don Shaffer
i agree, there being nothing, new or otherwise, warranting a further reply. happy holidays to all!
And happy holidays to you as well, Prof. Fabrikant.
Don Shaffer