Carrington on Southern Judges on the Emancipation Proclamation

 We received an advance alert from the Oxford University Press for Adam M. Carrington’s Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation, to appear in a forthcoming volume of the American Journal of Legal History:

At the time of its issuance, Lincoln’s Emancipation Proclamation received consistent objections to its legality. Nowhere did these objections concern Lincoln more than from the judicial branch, resulting in the Thirteenth Amendment’s passage. Though the Supreme Court never directly took up the proclamation, this paper examines one group that did: Southern Reconstruction-Era state courts. While much literature exists on the Emancipation Proclamation, little examines how the judiciary, much less these courts, interpreted the document. These cases arose regarding payments for slave contracts made after January 1st, 1863 and before the Thirteenth Amendment’s ratification in December 1865. I show how these judges generally agreed on slavery’s status in peacetime and in places the proclamation excluded. However, three distinct positions arose regarding the proclamation’s legality elsewhere, positions grounded in the judges’ understanding of secession and the war powers of the national government as well as the president. This paper examines and compares these three positions in detail, explaining how some declared the proclamation illegal, some considered it legal while changing its substance, and a final group upheld the document as written. This paper shows Lincoln’s concerns about the judiciary to be well founded while also speaking to contemporary debates over war powers.