Lincoln as Legal Thinker

The above scene from the movie Lincoln (2012) displays well Lincoln’s strengths as a legal thinker.  Lincoln had an ability to take abstract concepts, think about them in concrete terms, and twirl them around in his mind looking at them from various angles, many of which would not be obvious at first glance.  The screenplay captures this ability of Lincoln:

I decided that the Constitution gives me war powers, but no one knows just exactly what those powers are. Some say they don’t exist. I don’t know. I decided I needed them to exist to uphold my oath to protect the Constitution, which I decided meant that I could take the rebels’ slaves from ‘em as property confiscated in war. That might recommend to suspicion that I agree with the rebs that their slaves are property in the first place. Of course I don’t, never have, I’m glad to see any man free, and if calling a man property, or war contraband, does the trick… Why I caught at the opportunity.

Now here’s where it gets truly slippery. I use the law allowing for the seizure of property in a war knowing it applies only to the property of governments and citizens of belligerent nations. But the South ain’t a nation, that’s why I can’t negotiate with ’em. So if in fact the Negroes are property according to law, have I the right to take the rebels’ property from ‘em, if I insist they’re rebels only, and not citizens of a belligerent country?

And slipperier still: I maintain it ain’t our actual Southern states in rebellion, but only the rebels living in those states, the laws of which states remain in force. The laws of which states remain in force.

That means, that since it’s states’ laws that determine whether Negroes can be sold as slaves, as property – the Federal government doesn’t have a say in that, least not yet – then Negroes in those states are slaves, hence property, hence my war powers allow me to confiscate ‘em as such. So I confiscated ‘em. But if I’m a respecter of states’ laws, how then can I legally free ‘em with my Proclamation, as I done, unless I’m cancelling states’ laws?

I felt the war demanded it; my oath demanded it; I felt right with myself; and I hoped it was legal to do it, I’m hoping still. Two years ago I proclaimed these people emancipated – “then, thenceforward and forever free.”

But let’s say the courts decide I had no authority to do it. They might well decide that.

Say there’s no amendment abolishing slavery. Say it’s after the war, and I can no longer use my war powers to just ignore the courts’ decisions, like I sometimes felt I had to do. Might those people I freed be ordered back into slavery? That’s why I’d like to get the Thirteenth Amendment through the House, and on its way to ratification by the states, wrap the whole slavery thing up, forever and aye. As soon as I’m able. Now. End of this month. And I’d like you to stand behind me. Like my cabinet’s most always done.

This reflects the way Lincoln reasoned on legal issues as the following demonstrates:

To the Senate and House of Representatives [1]
July 17, 1862

Fellow-Citizens of the Senate, and House of Representatives,

Considering the bill for “An act to suppress insurrection, to punish treason, and rebellion, to seize and confiscate the property of rebels, and for other purposes” and the Joint Resolution [explanatory of said act,] [2] as being substantially one, I have approved and signed both.

Before I was informed of the passage of the Resolution, I had prepared the draft of a Message, stating objections to the bill becoming a law, a copy of which draft is herewith transmitted.

[ABRAHAM LINCOLN]

[July 17, 1862.]

Fellow citizens of the House of Representatives

I herewith return to your honorable body, in which it originated, the bill for an act entitled “An act to suppress treason and rebellion, to seize and confiscate the property of rebels, and for other purposes” together with my objections to it’s becoming a law.

There is much in the bill to which I perceive no objection. It is wholly prospective; and it touches neither person or property, of any loyal citizen; in which particulars, it is just and proper. The first and second sections provide for the conviction and punishment of persons who shall be guilty of treason, and persons who shall “incite, set on foot, assist, or engage in any rebellion, or insurrection, against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to any such existing rebellion, or insurrection” By fair construction, persons within these sections are not to be punished without regular trials, in duly constituted courts, under the forms, and all the substantial provisions of law, and of the constitution, applicable to their several cases. To this I perceive no objection; especially as such persons would be within the general pardoning power, and also the special provision for pardon and amnesty, contained in this act. It is also provided, that the slaves → of persons convicted under these sections shall be free. I think there is an unfortunate form of expression, rather than a substantial objection, in this. It is startling to say that congress can free a slave within a state; and yet if it were said the ownership of the slave had first been transferred to the nation, and that congress had then liberated, him, the difficulty would at once vanish. And this is the real case. The traitor against the general government forfets his slave, at least as justly as he does any other property; and he forfeits both to the government against which he offends. The government, so far as there can be ownership, thus owns the the [sic] forfeited ← slaves → ; and the question for Congress, in regard to them is, “Shall they be made free, or be sold to new masters?” I perceive no objection to Congress deciding in advance that they shall be free. To the high honor of Kentucky, as I am informed, she has been the owner of some ← slaves → by escheat, and that she sold none, but liberated all. I hope the same is true of some other states. Indeed, I do not believe it would be physically possible, for the General government, to return persons, so circumstanced, to actual slavery. I believe there would be physical resistance to it, which could neither be turned aside by argument, nor driven away by force. In this view I have no objection to this feature of the bill. Another matter involved in these two sections, and running through other parts of the act, will be noticed hereafter.

Go here to read the rest.  Lincoln wrote his first draft of the Emancipation Proclamation in late July and his mind was working on how an abstraction like freedom could be applied to the ugly realities of war and the practical realities of the existing law.

Published in: on April 14, 2021 at 5:30 pm  Leave a Comment  
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