Law and Lincoln – By Shrestha Banerjee (NLUJA, Assam)

By | November 14, 2018
Law and Lincoln

INTRODUCTION

The best way to estimate the value of Lincoln is to think what the condition of America would be today if he had never lived – never been president.”Walt Whitman[1]

This article is about the legend who altered the entire course of American history and is the reason behind the whole existence of the country as  “The United States of America” and not “Confederate States of America”. A torchbearer to American Constitution and ideas such as federalism and republicanism, this man is none other than the sixteenth president of the USA, Abraham Lincoln. His endeavor not only freed America from the fetters of slavery but also guided the country through the most devastating experience in its history- The American Civil War. The legacy that this great stalwart has left behind still remains present in the pages of American law and constitution and deserves a thorough analysis of his journey.

EARLY LIFE AND CAREER

Lincoln was born on 12th February 180,9 in a place called Kentucky about three miles west of a place which is now called La Rue County. His childhood was spent almost without any education. In 1816 his family moved to Indiana partly because land ownership was more secure over there, and also because the Northwest Ordinance of slavery forbade slavery in the area. In this context, it should be mentioned that Lincoln’s family owed allegiance to a Baptist church that disapproved slavery, and this can be considered to be an inspiration for Lincoln’s fight against slavery in his later life. In fact, even Lincoln himself said that he was “naturally anti-slavery”.

Lincoln started his political career with a campaign for the August 6 elections for the Illinois General Assembly in 1832, where he ran unsuccessfully. Two years later, he was elected to the lower house for the first of four successive terms (until 1841) as a member of the Whig party, which he bequeathed from his father. It is between this period from 1832-34 that he gave impetus to his decision of becoming a lawyer which materialized in 1836 when he finally became a lawyer and established a successful practice in the following year at Springfield.

As a member of the Lower House of Illinois, Lincoln supported the Second Bank of the United States, the Illinois State Bank, government-sponsored infrastructural developments and protective tariffs. He was not a fervent supporter of an agriculturist economy but rather was sympathetic to the proletariat and the concept of Capitalism admiring the American system of economic opportunity in which the “man who labored for another last year, this year labors for himself, and next year he will hire others to labor for him.” Lincoln served one term (1847-49) as a member of the U.S. House of Representatives, where he opposed the Mexican-American War.[2]

THE GROWTH OF AMERICAN NATION – A SOCIAL BACKGROUND

It is, of course, impossible to study the operation of a politician in a country without studying a background of the country’s political developments in the past. In order to understand the social challenges, (especially those pertaining to secession) that stained Lincoln’s pregnancy, it is necessary to understand the historical development of the American state, the causes which till his time has conjoined the United States and the cause which more frequently has threatened them with disruption.

America originally was composed of  The “Thirteen United States of America” which in 1776 declared their independence from Great Britain.T hey were many distinct colonies having an uneven distribution along the 1300 miles of Atlantic Coast. Almost each of its colonies had its peculiarities that marked their antagonism towards their respective neighbors.  We may draw a broad contrast between the five southernmost states, the richest of them is Virginia, and the four northernmost states are known collectively as New England.

The earliest settlers who came from England brought along with them a political heritage, which gave more quintessence to the idea of local governments and it was fostered in the north by rising of a class of landowners and in the north by the Congregational Church system as centers of power. However, it failed to include any sort of feeling of allegiance to a Parliament like the one prevalent at Great Britain, or any aptitude for the English system of parliamentary government, under which the legislative and the executive functionaries are the same men, and under which the persons elected as the executives serve as the representatives of the masses enjoying a sort of supremacy for a given tenure.

The constitution of the Union was the product of a half-developed sense of nationality. A natural idea of federalism had developed with the union and the federal authorities operating side by side in their own spheres and the legislature of a federation was in no way subordinate to the Congress of the United States or neither the State Governor is an officer under the president. Further, the Congress had to be constituted in such a way that is was agreeable to the interests of the smaller States which did not wish to enter into a Union because of the possible domination by their more populous neighbors.

Thus, the feeling of secession had been ingrained in the constitution from its very advent, where, although the colonies had combined in the single act of acceptance of Union Sovereignty, yet the factors which had led to their consolidation were not so strong as might build up a great new unity between them.[3]

LINCOLN’S PRESIDENCY AND HIS CONTROL OF THE AMERICAN CIVIL WAR

Secessionist trends had begun in the American nation right before Lincoln could come to power as a president. The struggles for secession has begun as a protest against the anti-slavery movements and the abolitionist trends of the Republican Party of which Lincoln was a member since its inception in 1850. The official position of the party was that freedom was “national,” and natural condition of all areas under the direct sovereignty of the Constitution, whereas slavery was exceptional and sectional. Such a propaganda was quite obviously unacceptable for especially for the Southern States of America, where slavery was not only widely prevalent but also constitutional. Slavery was deep-rooted in the historical development of the Southern States, where the physical conditions had let to a growth of large farms or “plantations” and a large class of feudal proprietors who required farm laborers.

Naturally, coloured slaves have thrived in there and were useful in the cultivation of tobacco, indigo, rice or cotton.[4] Later slavery was validated by the American constitution stating that the union had no power to control slavery in the states where it already existed. Obviously, when the republican party came up with such a radical propaganda of abolition, of which Lincoln was a prominent propagator, it went starkly against the interests of the population.

Abraham Lincoln assumed power on March 4, 1961, which gave the immediate impetus to the outbreak of American Civil War. Almost all his votes had hailed from the northern states, and during the 16 weeks between election day and inauguration procedure, seven slave states have declared their secession from the union and formed the Confederate States of America. After occupying his office, Lincoln refused to accept any resolution that might encourage or legitimize slavery in any part of America, be it north or south.

The Crittenden Compromise, for example, comprised of a set of six constitutional amendments that can deny the congress any power with respect to the abolition of slavery in any state or interference with the domestic slave trade. Lincoln made a personal appeal to the republican senators to disapprove the contravention, and it failed to secure a mandate in the congress.[5]

The secession started with the state of South Carolina in 1860, and the rebellion reached to its peak when Fort Sumter in South Carolina came under the seizure of the armed forces of the confederacy. It was at this point of time when Lincoln assumed control of the situation by employing his excellent use of the law to exercise presidential war powers during the early month of the war. He issued executive orders to call up state militia for federal military service and to expand the size of the regular military forces. He proclaimed a blockade of the confederate ports and most importantly suspended the writ of Habeus Corpus in the state of Maryland which is a neighbor to Washington DC to protect the capital. When Lincoln made use of his discretionary powers to act out against the slave states, the congress was not in session.

So in order to legitimize the president’s rule, he summoned a special session of the Congress July 4, 1861, whereby he appealed to the latter for a ratification of his actions and the Congress approved.[6]

In doing so he came under the fierce criticism of his rival- The Democrats who accused him of being a tyrant and abolishing Civil Liberties. However, the approval of the congress gave the much needed legality to Lincoln’s action through which he saved the Union from major blows of secession, by curbing out their rights.

The war finally came to an end with the surrender of the confederates on April 9th, 1865. Abraham Lincoln, with his remarkable leadership capabilities, had not only succeeded in saving the Union of America from breaking down into several small confederacies, but also had struck a great blow to the evil practice of slavery in America, which had for so long been a source of oppression and racism, denying the coloured people their basic democratic rights.

ABOLITION OF SLAVERY – THE EMANCIPATION PROCLAMATION AND 13TH AMENDMENT

“Those who deny freedom to others, deserve  it not for themselves and, under just God, can not long retain it .”- Abraham Lincoln (April 6,1859)

Throughout the war, the issue of abolition slavery has somewhere crept into and become a major task that Lincoln seemed to accomplish.  In April 1862, Lincoln signed a law abolishing slavery in Washington, D.C., and, in June, he signed another law abolishing slavery in all federal territories. The following month, Lincoln signed the Confiscation Act of 1862, which declared that all Confederate slaves taking refuge behind Union lines were to be set free.[7]

In addition, he also determined himself of pursuing emancipation as a war goal. As the war ended, and the territories were now more secure under the union, he took the opportunity of announcing the emancipation proclamation and put in effect the Emancipation Proclamation from January 1, 1863, in the eleven states which were still in rebellion. The Emancipation Proclamation came as an executive order that changed the federal status of more than 3.5 million African Americans in the southern states, from slave to free. Free from the clutches of slavery that had led to their lack of development since ages, the African Americans now got their new-founded identity as the free citizens of a free country.  It was issued as a war measure during the American Civil War, directed to all of the areas in rebellion and all segments of the executive branch (including the Army and Navy) of the United States.[2]

Moreover, the proclamation not only granted the slaves freedom, but also took care to their socio-economic and financial stability in the country by ordering the enrollment of the eligible persons among those freed in the paid service of the united states forces and ordered the union army to recognize and maintain the freedom of the free-slaves. The Proclamation did not compensate the owners, did not outlaw slavery, and did not grant citizenship to the ex-slaves (called freedmen). It made the eradication of slavery an explicit war goal, in addition to the goal of reuniting the Union.[8]

As a result of the Proclmation During the war nearly 200,000 blacks, most of them ex-slaves, joined the Union Army.[67] Their contributions gave the North additional manpower that was significant in winning the war. The Confederacy did not allow slaves in their army as soldiers until the last month before its defeat.[9]

However, it must be noted that  it applied only to enslaved persons in areas of the Confederate states not controlled by the Union at the time the proclamation was issued. The Emancipation Proclamation did not apply to slave states that remained in the Union, such as Missouri, Kentucky, Maryland, and Delaware. However, enslaved persons were freed by Union soldiers as they advanced into the rebellious states and occupied territory within them.

It was partially effective. So Lincoln knew that it is only through a Constitutional Amendment alone that a complete emancipation can be achieved. This was achieved through the Thirteenth Amendment in the American Constitution, that pledged to constitutionally outlaw slavery. After a vigorous struggle for securing its ratification in the congress throughout the years of 1864 and 1865, he finally was able to pass it in the congress, send it to the states for ratification and achieved its proclamation by the secretary of state on December 18, 1865.

In this way, Abraham Lincoln successfully created an America in accordance with the founding principles expressed in the revered American Declaration of Independence. He believed that all persons are created equal in their possession of certain God-given natural rights, such as the rights to life, liberty, and the pursuit of happiness. The government’s primary responsibility is to protect the inherent natural rights of individuals and he successfully materialized such a concept of Government and Legal system, that was strong enough to banish the racism that had cast its evil shadow on America since its inception.

OTHER REFORMS

It would be wrong to restrict Lincoln’s Legal contribution only to slavery and American civil war because his influence on the fields of effective fiscal and monetary reforms, was also strongly felt. He contributed a great deal to the American Monetary system by signing the Revenue Act of 1861 and creating the first federal income text Lincoln also signed the second and third Morrill Tariffs, which raised import duties, and were designed to both raise revenue and protect domestic manufacturing against foreign competition. During the war, the tariff also helped manufacturers off-set the burden of new taxes. He signed the Homestead Act in 1862, making millions of acres of government-held land in the West available for purchase at very low cost. The Morrill Land-Grant Colleges Act, also signed in 1862, provided government grants for

agricultural colleges in each state. The Pacific Railway Acts of 1862 and 1864 granted federal support for the construction of the United States’ First Transcontinental Railroad, which was completed in 1869.[10]

LINCOLN’S LEGACY TO AMERICAN CONSTITUTIONALISM AND CITIZENSHIP

Abraham Lincoln saved the Federal Union and Constitution in his time and bequeathed to succeeding generations a deep understanding of unity, showing this Union, the United States of America, cannot be constitutionally dissolved by a minority of people or states for their own selfish purposes. He left a legacy to the citizens of America that would spearhead them in becoming responsible citizens who know how to respect their own rights as well as treat others with equality. The way he used law and constitution to cater to the needs of the marginalized as well as to secure the nation into one, is indispensable.  He redefined American republicanism, where Lincoln justified the war in terms of legalisms (the Constitution was a contract, and for one party to get out of a contract all the other parties had to agree), and then in terms of the national duty to guarantee a republican form of government in every state.

Above all, Lincoln has given a new direction to the development in the course of American History, without whom the nation would not have been what it is today.

“I leave you, hoping that the lamp of liberty will burn in your bosoms until there shall no longer be a doubt that all men are created free and equal” – Speech at Chicago, Illinois (July 10, 1858)[11]


By – Shrestha Banerjee

(National Law University and Judicial Academy, Assam)


Sources:

Books Referred:

  • Charnwood Lord; Abraham Lincoln-A complete Biography”; General Press( May 2018)

Journal Articles:

  • “Confederate Law Authorizing the Enlistment of Black Soldiers, as Promulgated in a Military Order”. CSA General Orders, No. 14. Department of History, University of Maryland. March 23, 1865.
  • Prof John J Patrick; “Abraham Lincoln and Executive Power” ;
  • http://www.civiced.org/lincoln-lesson?page=multimedia_lincoln_john_patrick_transcript

Footnotes:

[1] ABRAHAM LINCOLN by C.N;The Journal of Education, Vol. 47, No. 1 (1160) (JANUARY 6, 1898), pp. 5-6 https://www.jstor.org/stable/pdf/44046955.pdf?refreqid=excelsior%3A3e077b24d1048f10c2bd534dba4b52eb

[2]Abraham Lincoln                      https://www.nps.gov/saga/learn/education/upload/Lincoln%20Biography.pdf

[3] Lord Charnwood; “Abraham Lincoln-A complete Biography” ; General press (2018)

[4] Lord Charnwood; “Abraham Lincoln-A complete Biography” ; General press(2018)

[5]  White (2009), pp. 351–354.

[6] “Abraham Lincoln and Executive Power” ; Prof Patrick J John

http://www.civiced.org/lincoln-lesson?page=multimedia_lincoln_john_patrick_transcript

[7]  White (2009), pp. 492–493.

[8]  Foner 2010, pp. 239–42

[9] .  “Confederate Law Authorizing the Enlistment of Black Soldiers, as Promulgated in a Military Order”. CSA General Orders, No. 14. Department of History, University of Maryland. March 23, 1865.

[10]  Paludan, p. 116.

[11] Lord Charnwood; “Abraham Lincoln-A complete Biography” ; General Press(2018)


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