Limits on the "war power"

Marty Lederman marty.lederman at
Sat Jan 28 14:14:11 PST 2006

Sandy:  Is your question about the President's power to act unilaterally in this regard, or about the power of the federal government to seize the property of Confederate Rebels?  If the latter, it's not really a hypo -- it more or less describes the Confiscation Act of 1862, which preceded the Emancipation Proclamation by a few months (sections 5-12 of which set out below).  I'm not sure if the war powers (the Captures Clause, in particular) would have authorized transfer of the property to the freed slaves -- but then again, why not?:

SEC. 5. And be it further enacted, That, to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States, that is to say: 

First. Of any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States. 

Secondly. Of any person hereafter acting as President, Vice-President, member of Congress, judge of any court, cabinet officer, foreign minister, commissioner or consul of the so-called confederate states of America. 

Thirdly. Of any person acting as governor of a state, member of a convention or legislature, or judge of any court of any of the so-called confederate states of America. 

Fourthly. Of any person who, having held an office of honor, trust, or profit in the United States, shall hereafter hold an office in the so-called confederate states of America. 

Fifthly. Of any person hereafter holding any office or agency under the government of the so-called confederate states of America, or under any of the several states of the said confederacy, or the laws thereof, whether such office or agency be national, state, or municipal in its name or character: Provided, That the persons, thirdly, fourthly, and fifthly above described shall have accepted their appointment or election since the date of the pretended ordinance of secession of the state, or shall have taken an oath of allegiance to, or to support the constitution of the so-called confederate states. 

Sixthly. Of any person who, owning property in any loyal State or Territory of the United States, or in the District of Columbia, shall hereafter assist and give aid and comfort to such rebellion; and all sales, transfers, or conveyances of any such property shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section. 

SEC. 6. And be it further enacted, That if any person within any State or Territory of the United States, other than those named as aforesaid, after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof. And all sales, transfers, or conveyances, of any such property after the expiration of the said sixty days from the date of such warning and proclamation shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section. 

SEC. 7. And be it further enacted, That to secure the condemnation and sale of any of such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any district court thereof, or in any territorial court, or in the United States district court for the District of Columbia, within which the property above described, or any part thereof, may be found, or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies' property and become the property of the United States, and may be disposed of as the court shall decree and the proceeds thereof paid into the treasury of the United States for the purposes aforesaid. 

SEC. 8. And be it further enacted, That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto. And the said courts shall have power to allow such fees and charges of their officers as shall be reasonable and proper in the premises. 

SEC. 9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves. 

SEC. 10. And be it further enacted, That no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offence against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service. 

SEC. 11. And be it further enacted, That the President of the United States is authorized to employ as many persons of African descent as he may deem necessary and proper for the suppression of this rebellion, and for this purpose he may organize and use them in such manner as he may judge best for the public welfare. 

SEC. 12. And be it further enacted, That the President of the United States is hereby authorized to make provision for the transportation, colonization, and settlement, in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen. 

  ----- Original Message ----- 
  From: Sanford Levinson 
  To: Marty Lederman ; DavidEBernstein at ; mschor at ; VOLOKH at 
  Cc: conlawprof at 
  Sent: Saturday, January 28, 2006 4:47 PM
  Subject: RE: Limits on the "war power"

  Assume that the Emancipation Proclamation was constitutional as an exercise of  the President's "war power" (as distinguished, presumably, from his "commander-in-chief" power inasmuch as the EP was not directed to the military.  It directly expropriated the most valuable property of many white Southerners.)  But, of course, the emancipated slaves got, as a Union general put it, "nothing but freedom."  That is, they did not get their "forty acres and a mule" necessary to establish them as reasonably autonomous agents in a free-market economy.  Moreover, of course, there is an argument of compensatory justice, that uncompensated slave labor had created much of the value of the white Southerners' holdings.  In any event, if the EP was constitutional, then would it have been equally constitutional, on Jan. 1, 1863, for Lincoln to have declared null and void existing land titles and to direct that each freed slave be recognized as having title to some acreage (whether forty acres or not) of the now-former-master's land and a mule or horse?  One might say, of course, that slavery was immoral and that ownership of the land was not, but the EP said nothing about morality in its cold-minded argument of relationship to successful prosecution of the War.  

  A question for David:  I can respect a lot of libertarian arguments, but even Bob Nozick seemed to require justice in the initial allocation of resources.  To what extent does the injustice and exploitation of slaves justify land reform?  Same question re South Africa:  Does the history of the apartheid regime justify "land reform" at less than full market-value compensation for the present (white) landowners who took advantage of the 1913 land laws that basically prohibited blacks from owning most of South Africa?

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