Who is this "Martin Luther King" and why does he have his day off today?

[giblets]

Lincoln issued the Proclamation under his authority as "Commander in Chief of the Army and Navy" under Article II, section 2 of the United States Constitution.[4] As such, he claimed to have the martial power to suspend civil law in those states which were in rebellion. He did not have Commander-in-Chief authority over the four slave-holding states that were not in rebellion: Missouri, Kentucky, Maryland and Delaware, and so those states were not named in the Proclamation.[6] The Emancipation Proclamation was never challenged in court.

To ensure the abolition of slavery in all of the U.S., Lincoln pushed for passage of the Thirteenth Amendment. Congress passed it by the necessary two-thirds vote in February 1865 and it was ratified by the states by December 1865.[7]

http://en.wikipedia.org/wiki/Emancipation_proclamation#Authority

lol yeah Lincoln just wanted some good old-fashioned imperialism against Latin America and the South, that was his real motivation.

[MichaeltheGreat]

Good ol' Wikipedia.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Since I'm just a simple ignroant southerner, please 'splain to me where in there the authority lies to direct the states to produce an armed force other than the state militias to be turned over to federal control and used for whatever purpose the President may direct?

Under existing acts of Congress, ol' Abe did not have the power to use the state militias, and he knew this. My point isn't that the Emancipation Proclamation was issued without authority - my point is that it was a sham document which allowed states that fessed up to keep their slaves if they returned to the fold in the time demanded. Hardly "freeing the slaves"

My other point was that ol' Abe had no authority under the Constitution to raise the force he raised to go invade the south. You can't find it in Article II, Section 2, if it existed, because it didn't.

[giblets]

Really now? It's unconstitutional for the federal government to raise an army?

[kentonio]

My point isn't that the Emancipation Proclamation was issued without authority - my point is that it was a sham document which allowed states that fessed up to keep their slaves if they returned to the fold in the time demanded. Hardly "freeing the slaves"

Of course just maybe Ol' Abe was able to see past next week and knew full well that the only way slavery had a long term future was if the confederacy was allowed to exist. He may have allowed it to continue for the time being in exchange for ending a brutally bloody war that was tearing America apart, but the abolitionists weren't going anyway, the underground railroad wasn't going anywhere, and the world was turning more and more against the idea of slavery. Also I understood that the proclamation freed a ton of slaves immediately it was enacted. Is this incorrect?

I get confused by arguments like the one you're making, is the expectation that unless Lincoln was a living saint, that the northern cause is somehow completely undermined? Because I have to say, that from where I'm sitting, there wasn't exactly a lot of competition for 'who are the good guys'. Obviously lots of confederate leaders did not choosing to fight for the principles of slavery, but by their allegiance that is exactly what they were fighting for.

[Ben Kenobi]

He's a teacher in a catholic school, of course he is.

S'truth, I stick mostly to white boards and markers, pens, paper, pencil and erasers.

[Elok]

Also I understood that the proclamation freed a ton of slaves immediately it was enacted. Is this incorrect?

If you're talking about the EP, yes, it's incorrect. That freed all slaves in rebel territory to punish them. As they were currently shooting every representative of the US gummint sent their way, it didn't mean a lot.

[giblets]

That would depend on how you define "tons of slaves" since good ol' Wikipedia says it freed at least 20,000 slaves when it went into effect.

[kentonio]

If you're talking about the EP, yes, it's incorrect. That freed all slaves in rebel territory to punish them. As they were currently shooting every representative of the US gummint sent their way, it didn't mean a lot.

That would depend on how you define "tons of slaves" since good ol' Wikipedia says it freed at least 20,000 slaves when it went into effect.

Yeah, I thought the point was that it freed slaves in occupied territory?

[regexcellent]

It didn't free the slaves in slave states that remained in the Union, specifically Maryland, Delaware, Kentucky, and parts of Virginia (now West Virginia).

[MichaeltheGreat]

Really now? It's unconstitutional for the federal government to raise an army?

It's unconstitutional for the President to order the states to raise and equip "volunteers" to be turned over to Federal control.

There was already a standing army, as raised and funded by Congress, and ol' Abe didn't find it politically expedient to use that.

There were also standing militias, and ol' Abe didn't have the authority to use them for the specific purpose - the states had to make a request for federal help to quell a rebellion (e.g. the Whiskey rebellion). Neither the governor, nor the legislature, nor any federal judge in South Carolina requested federal help. According to the Constitution and the enabling statutes of Congress, those requests were a necessary precondition for federal intervention within the state in question. Otherwise, it was a local law enforcement matter.

So ol' Abe decided what he needed was a third armed force under federal control. Show me the authority in Article II? Or Congress' authority in Section I to raise an armed force outside the regular army with the ability to operate beyond the constraints of existing law, e.g. Posse Commitatus?

There WAS lawful authority to send federal troops, but Posse Commitatus constrained that a bit. State troops under Federal authority are NOT federal troops. Officer promotions and appointments through colonelcies were made under state authority, etc., rather than the appropriate board in the Department of the Army. Company grade officers were generally elected, but field grade officers were state level political patronage. That's how the yankees got themselves saddled with such fine examples of the military art as Banks, Butler and Sickles.

Unless, and here's the rub, South Carolina was recognized as a foreign country, then the regular army could have its way, but that would have required de facto recognition of South Carolina's right to secede. Ol' Abe did this waltz around the Constitution to avoid recognition of secession, while dancing around state sovereignty and what the Federal authorities could do when state authority did not request their "assistance." It was also the original unfunded mandate, since Congress would only pay the troops and support cost once the levied "volunteers" were transferred to federal control. The states were directed by purported federal executive authority to raise, train and equip "volunteer" regiments at their own expense until such time as they were deemed ready to transfer to federal control.

[regexcellent]

Posse Comitatus post-dates the Civil war. And the Constitution gives the President the authority to call up the state militias during a crisis.

[giblets]

It's unconstitutional for the President to order the states to raise and equip "volunteers" to be turned over to Federal control.

There was already a standing army, as raised and funded by Congress, and ol' Abe didn't find it politically expedient to use that.

There were also standing militias, and ol' Abe didn't have the authority to use them for the specific purpose - the states had to make a request for federal help to quell a rebellion (e.g. the Whiskey rebellion). Neither the governor, nor the legislature, nor any federal judge in South Carolina requested federal help. According to the Constitution and the enabling statutes of Congress, those requests were a necessary precondition for federal intervention within the state in question. Otherwise, it was a local law enforcement matter.

So ol' Abe decided what he needed was a third armed force under federal control. Show me the authority in Article II? Or Congress' authority in Section I to raise an armed force outside the regular army with the ability to operate beyond the constraints of existing law, e.g. Posse Commitatus?

There WAS lawful authority to send federal troops, but Posse Commitatus constrained that a bit. State troops under Federal authority are NOT federal troops. Officer promotions and appointments through colonelcies were made under state authority, etc., rather than the appropriate board in the Department of the Army. Company grade officers were generally elected, but field grade officers were state level political patronage. That's how the yankees got themselves saddled with such fine examples of the military art as Banks, Butler and Sickles.

Unless, and here's the rub, South Carolina was recognized as a foreign country, then the regular army could have its way, but that would have required de facto recognition of South Carolina's right to secede. Ol' Abe did this waltz around the Constitution to avoid recognition of secession, while dancing around state sovereignty and what the Federal authorities could do when state authority did not request their "assistance." It was also the original unfunded mandate, since Congress would only pay the troops and support cost once the levied "volunteers" were transferred to federal control. The states were directed by purported federal executive authority to raise, train and equip "volunteer" regiments at their own expense until such time as they were deemed ready to transfer to federal control.

Please tell me more about Posse Commitatus. When was this enacted?

[MichaeltheGreat]

That would depend on how you define "tons of slaves" since good ol' Wikipedia says it freed at least 20,000 slaves when it went into effect.

It depends on your definition. The 20,000 or so estimate is based on the number of "contrabands" in yankee occupied areas who were already de facto not under any physical control of their owners, most of whom had evacuated and left the slaves behind. Those individuals were already free in a practical sense, though they had no civil rights and were in a nominal legal limbo. Had those states returned to the union by January 1, 1863, those "contrabands" would have been returned to servitude.

[giblets]

It depends on your definition. The 20,000 or so estimate is based on the number of "contrabands" in yankee occupied areas who were already de facto not under any physical control of their owners, most of whom had evacuated and left the slaves behind. Those individuals were already free in a practical sense, though they had no civil rights and were in a nominal legal limbo. Had those states returned to the union by January 1, 1863, those "contrabands" would have been returned to servitude.

Yeah, if those states hadn't been stupid enough to rebel they wouldn't have had their slaves taken away without compensation.

[MichaeltheGreat]

Posse Comitatus post-dates the Civil war. And the Constitution gives the President the authority to call up the state militias during a crisis.

The forces who marched to inglorious defeat at First Manassas were not state miliitias.

The modern Posse Commitatus Act was enacted at the end of Reconstruction. The English common law concept of Posse Commitatus dates back to the early 15th century, and applied in the colonies as well as the early US until the Reconstruction Act. Under the common law, in accordance with the Mansfield Doctrine, a federal soldier engaged in civilian law enforcement had the same legal status as any civilian member of a sheriff's posse - i.e. he had state level civil and criminal liability for his acts, and no official status or immunity. As a practical matter, until the Reconstruction Act, any federal army or navy personnel engaged in civilian law enforcement at federal behest, but in opposition to local officials, was lawfully subject to arrest and trial by those local officials. Since the Reconstruction Act specifically created statutory law which superseded the historic common law, it was necessary for a statutory Posse Commitatus law to restore what had been the American (as well as English) legal standard from the days of the first colonies until the passage of Reconstruction.

Sorry, I knew you and gribbler thought you had my ass, but you didn't.

edit - BTW, an illustration of the application of the common law of Posse Commitatus and what came to be known as the Mansfield Doctrine was the Massachusetts colonial trial of British soldiers in connection with the Boston Massacre. In the absence of common law Posse Commitatus, those soldiers would have been immune from prosecution as agents of the Crown.