Lincoln Bicentennial: Legalities limited eloquence

By Bobbi Mlynar (Contact)
Emporia Gazette - Emporia, KS, USA
Thursday, February 19, 2009

It was no accident that Abraham Lincoln — perhaps the most talented writer and speaker to hold the U.S. presidency — shied away from eloquence and strayed to the “dull, boring, pedestrian” language found in the Emancipation Proclamation.

“If you have insomnia, it’s a very good place to start,” said Paul Finkelman, keynote speaker Wednesday evening at the third of Emporia State University’s Lincoln Symposium series.

Finkelman is Pres. William McKinley Distinguished Professor of Law and Public Policy at Albany Law School.

Finkelman put the Lincoln presidency into historical perspective — the Emancipation Proclamation went into effect the same year that Emporia State University was founded.

“I want to give you a sense of just how close we are to the events we’re going to talk about today,” Finkelman said.

Lincoln had risen like a meteor from the prairie of Illinois to the presidency of the United States.

“Then, like Moses, God snatches him away just about when he was crossing to the Promised Land,” he said.

Noting that some modern-day scholars criticize Lincoln for not taking the Emancipation Proclamation far enough, Finkelman said that the president did what he could within the constraints of the U.S. Constitution.

Despite Thomas Jefferson’s language that “all men are created equal,” the slave-holding Jefferson included the right to hold slaves in the Constitution.

According to the Constitution, Lincoln then could emancipate only the slaves who did not live in the U.S. That limitation meant freedom could be granted to the slaves living in the Confederate states that had seceded from the Union, not those who lived in the Union states.

Finkelman said Lincoln drew up the proclamation as “a lawyer’s document” — brief, to the point, and with no room for misinterpretation.

“So he writes a document that has all the grandeur of a bill of lading,” Finkelman said.

The proclamation was a long time coming, as Lincoln worked to build support and close loopholes that might derail the proclamation.

“There was nothing Lincoln hated more than slavery,” Finkelman said. “…If slavery is not wrong, then nothing is wrong, Lincoln says, and he says it in a variety of ways throughout his life.”

Serving in the Illinois legislature, Lincoln was one of six members who voted against a bill condemning abolitionism. He soon introduced his own bill condemning slavery, and was one of two who voted in favor of the proposal.

Finkelman speculated that Lincoln’s abhorrence of slavery may have evolved from his father’s control over his life. At that time, young men could not work without their parents’ permission until they were 21.

Finkelman said he believed Thomas Lincoln’s control over his son was one of the reasons “he clearly hated his father.”

“Lincoln wrote about being a slave to his father,” Finkelman said.

Slaves played a major role, in one way or another, in the early United States. Although they did not have the right to vote, for example, they were counted among the population of each state, which determined how many representatives those states could send to Congress.

As a result, a presidential candidate could win the popular vote — the white man’s vote — but could lose the election in the Electoral College because the Southern states, with their slave populations, were more heavily represented in Congress. The reverse, of course, was also true — Jefferson was elected through the Electoral College and its preponderance of slave-holding legislators, Finkelman said.

Though Lincoln disagreed with slavery, he made efforts to lure the secessionist states back into the Union, but was unsuccessful.

South Carolina, on its withdrawal, said, “We are leaving the Union because someone has been elected who says slavery is wrong,” Finkelman said. “Slavery was the cornerstone of the Confederacy.”

Lincoln needed to accomplish pre-conditions before he could declare the Emancipation Proclamation that was percolating in his mind.

Finkelman said Lincoln needed to build theoretical framework to enable him to act against privately held property in a Constitutionally legal manner, support and manpower from the border states — Missouri, Kentucky, Maryland, Delaware and Virginia — and political support for emancipation.

He managed to do that through a quirk of war and law that happened after three slaves from Virginia escaped to the Union’s Fort Monroe, commanded by Benjamin Butler.

A major from the Confederate Army asked Butler to return the slaves, but Butler held that the fugitive slave act did not cover a foreign country, which Virginia claimed to be after its secession from the Union.

Because slaves were considered property, like muskets and horses, any slaves who were under control of the Union became “contraband of war,” Finkelman explained.

Butler said that Col. Mallory, who owned the slaves, could come take the oath of allegiance to the United States and his slaves would be returned. When Mallory refused, he lost his slaves and simultaneously gave Lincoln some of the ammunition he needed to announce the Emancipation Proclamation.

Butler then hired the slaves as civilian employees.

“Every day, you would have seen more and more black faces in blue uniforms, doing everything but shooting guns,” Finkelman said.

Border states, and especially Missouri and Kentucky, became key to moving forward with the proclamation. Lincoln cultivated Kentucky’s alliance with the Union.

“It would take 50,000 bayonets out of the Union Army and put them in the Confederacy,” Finkelman said.

The Union’s cause was boosted, too, by a “total washed-out failure” of a former serviceman who re-enlisted and was made colonel, then brigadier general — Ulysses S. Grant.

“In the space of two weeks, he captures Fort Donaldson and Fort Henry,” Finkelman said. “The U.S. Army was sitting in north Tennessee, with its guns aimed at Nashville.”

By the spring of 1862, after success in New Orleans and islands off the Carolinas, the U.S. controlled the Mississippi River up to Vicksburg, he said.

Lincoln also worked to gain political support for the Emancipation Proclamation, and was heartened by a Congressional vote that abolished slavery in Washington, D.C. Methodically, Lincoln built vast public support for what he was planning to do.

He also had offered money to Confederates to compensate them for the loss of their slaves, though the offer was not welcomed.

“Emancipation is the icing on the cake of winning the war. ... The reality is, of course, he’s this close to freeing the slaves,” Finkelman said, holding his thumb and forefinger almost touching, but apart.

In the interim, Lincoln added to the Union’s military by pressing immigrants into service.

“He keeps giving them uniforms when they get off the boat,” Finkelman said.

By Sept. 22, 1862, Lincoln had laid the foundation to announce the terms of the Emancipation Proclamation publicly, and to say that slavery would end in 100 days in the Confederate states unless they returned to the Union. And, he immediately authorized enlistment of black troops into the U.S. military.

Union soldiers marched through the Confederacy, freeing slaves as they went from town to town.

The proclamation later was relegated to an artifact of history, when Congress enacted the 13th Amendment to the Constitution. The amendment, officially adopted on Dec. 6, 1865, abolished slavery and involuntary servitude, except as punishment for a crime.

Angela M. Alexander of Winthrop University read a paper, “All Men Are Created Equal: Abraham Lincoln, Immigrants and Ethnicity,” before Finkelman’s presentation.