Limits on the "war power"
Francisco Martin
ricenter at igc.org
Sat Jan 28 19:55:42 PST 2006
The EP today would be not be illegal because slavery, of course, is now a
violation of jus cogens. If persons were illegally holding slaves, the
slaveholders' real property (or other assets) could be used to compensate
these slaves under the rule prohibiting unjust enrichment, which is a
"principle of law recognized by civilized nations" (ICJ Statute, art. 38).
See Case T-171/99, Corus UK Ltd. v. Commission, ECR 2001, II-02967, ¶ 55
(recognizing prohibition of unjust enrichment as “general principle of
[European] Community law”).
Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
> [Original Message]
> From: Sanford Levinson <SLevinson at law.utexas.edu>
> To: <ricenter at igc.org>; CONLAWPROF <CONLAWPROF at lists.ucla.edu>
> Date: 1/28/2006 9:39:20 PM
> Subject: RE: Limits on the "war power"
>
> So this raises an obvious question: Under the Hague Convention, would
something like the EP be illegal, or would the "out" be that humans
couldn't be held as private property? But would the Hague Convention then
prohibit land redistribution to the former slaves?
>
> sandy
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Francisco Martin
> Sent: Sat 1/28/2006 6:09 PM
> To: CONLAWPROF
> Subject: RE: Limits on the "war power"
>
>
> The laws of war in 1863 allowed the seizure and confiscation of property
belonging to private nationals/citizens of an enemy state. See Vattel,
Law of Nations. However, this later changed, and private property could
not confiscated. See Hague Convention (IV), art. 46.
>
> Francisco Forrest Martin
> President
> Rights International, The Center for International Human Rights Law, Inc.
>
>
>
> ----- Original Message -----
> From: Sanford Levinson <mailto:SLevinson at law.utexas.edu>
> To: Marty Lederman <mailto:marty.lederman at comcast.net>
;DavidEBernstein at aol.com;mschor at suffolk.edu;VOLOKH at law.ucla.edu
> Cc: conlawprof at lists.ucla.edu
> Sent: 1/28/2006 5:47:57 PM
> Subject: RE: Limits on the "war power"
>
>
> Part of my question certainly relates to presidential unilateralism.
Lincoln had told Ge. Fremont that the Executive didn't have the power to
free slaves at all, later he told Gen. Hunter (in S.C.) that only the
President could order it and that he (Gen. Hunter) couldn't come to that
decision on his own.
>
> But there's also a question of individual culpability. The Confiscation
Act requires that the owner of the slaves have been an active part of the
insurrection. (Presumably, there could be due preocess concerns attached to
demonstrating that, a la the demonstration that one is an "illegal
combatant.") What was different about the EP was that no such culpability
on the part of slaveowners was required. It was enough, presumably, for
Lincoln to decide that the wholesale seizure of private property was
necessarily (in a decidedly Marshallian definition) to prosecution of the
War. Couldn't he have as easily decided that land reform would also help,
both by giving the slaves greater incentive to leave their masters and the
depriving the whites of presumably useful property?
>
> sandy
>
>
> ________________________________
>
> From: Marty Lederman [mailto:marty.lederman at comcast.net]
> Sent: Sat 1/28/2006 4:14 PM
> To: Sanford Levinson; DavidEBernstein at aol.com; mschor at suffolk.edu;
VOLOKH at law.ucla.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Limits on the "war power"
>
>
> 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 <mailto:SLevinson at law.utexas.edu>
> To: Marty Lederman <mailto:marty.lederman at comcast.net> ;
DavidEBernstein at aol.com ; mschor at suffolk.edu ; VOLOKH at law.ucla.edu
> Cc: conlawprof at lists.ucla.edu
> 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 b! e 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?
>
> sandy
>
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