Abraham Lincoln, A Lawyer-President

George Anastaplo

I.

The last memorable remarks made by Abraham Lincoln, before his Inauguration on March 4, 1861, were on George Washington’s Birthday, February 22, 1861. Those remarks—his last of note in public as a lawyer-politician—began at Independence Hall in Philadelphia. They were reinforced by what was said later that day at the State capital in Harrisburg, where the Independence Hall ceremonies were referred to and commended.

Lincoln, as lawyer, had been shaped by the legal studies dominated in his day by the Commentaries of William Blackstone. Thus, Mark E. Steiner has observed (An Honest Calling, p. 32),

Lincoln’s preparation for the bar largely consisted of reading borrowed treatises. [He] read more than Blackstone’s Commentaries, but not much more.

Critical to his general education were the Bible and some of William Shakespeare’s plays.

Also critical to his development, of course, were the language, the institutions, and the prevailing opinions of his Country. How much Lincoln had been shaped by the dominant sentiments of his national community is recognized in his opening remarks at Independence Hall:

I am filled with deep emotion at finding myself standing here in the place where were collected together the wisdom, the patriotism, the devotion to principle, from which sprang the institutions under which we live. You have kindly suggested to me that in my hands is the task of restoring peace to our distracted country. I can say in return.. .that all the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated, and were given to the world from this hall in which we stand. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence. [Great cheering.] I have often pondered over the dangers which were incurred by the men who assembled here and adopted that Declaration of Independence—I have pondered over the toils that were endured by the officers and soldiers of the army, who achieved that Independence.

This recognition is reinforced by what he said, later that day, during an address to the Pennsylvania General Assembly (at Harrisburg):

…I have already gone through one exceedingly interesting scene this morning in the ceremonies at Philadelphia. Under the kind conduct of gentlemen there, I was for the first time allowed the privilege of standing in old Independence Hall, [enthusiastic cheering], to have a few words addressed to me there and opening up to me an opportunity of expressing with much regret that I had not more time to express something of my own feelings excited by the occasion—somewhat to harmonize and give shape to the feelings that had been really the feelings of my whole life.

Lincoln, in stressing that he had “never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence,” recognized the primacy (and not only chronologically) of the Declaration among the four great Organic Laws of the United States. The other three such Organic Laws, also featured in early official compilations of the United States Statutes, are the Articles of Confederation, the Northwest Ordinance, and the Constitution. It was the Constitution, framed like the Declaration in Independence Hall, that prescribed the duties and powers that Lincoln was then on his way to Washington to assume.

To stress as he did, in Philadelphia, the Declaration of Independence, rather than the Constitution, was tacitly to recognize why the place is called Independence Hall. But he may have run the risk of seeming to provide support to those would-be Secessionists (by that time, clearly in control of seven States) who had (in effect) invoked the right of revolution drawn on in the Declaration. Of course, Lincoln was obliged to argue, in his Inaugural Address, a fortnight later, that a proper exercise of the right of revolution requires upon just grievances.

Even so, at Independence Hall, Lincoln does tone down somewhat the language of the Declaration of Independence. Thus, he does not emphasize the “all Men are created equal” proclamation, the determined application of which by Northern abolitionists (as well as by Lincoln himself) to American slaveholding had deeply threatened and aroused Southern Secessionists. Rather, Lincoln reformulated the “created equal” language on this occasion so that it did not seem to be directed primarily at the slavery institutions of the day, suggesting (as an experienced lawyer might, in damping down the passions of the moment), a moderating approach:

I have often inquired of myself, what great principle or idea it was that kept this Confederacy so long together. It was not the mere matter of the separation of the colonies from the mother land; but something in that Declaration giving liberty, not alone to the people of this country, but hope to the world for all the future time. [Great applause.] It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance. [Cheers.] This is the sentiment embodied in that Declaration of Independence.

III

Confederate States-minded Southerners were being told, in effect, that they had long had available, and had themselves been an integral part (as well as decades-long beneficiaries) of a quite adequate Union. The Declaration of Independence, which Secessionists were unilaterally attempting to adapt to their immediate efforts, indicates that just causes are needed before a people is entitled to invoke the right of revolution. For weeks Lincoln had been saying what he was to emphasize in his Inaugural Address, that Southerners had no just cause for Secession, especially since spokesmen for the Republican Party kept reassuring them that the incoming Administration did not propose to interfere with slavery in the States where it already existed.

Assurances were thereby repeatedly given that longstanding constitutional arrangements would continue to be respected, those arrangements developed by the Founders who had included so many venerated Southerners. Even so, Lincoln did insist that underlying the Constitution were the principles recognized in the Declaration of Independence. One cannot hope to understand Abraham Lincoln, therefore, unless one has a reliable sense of the Declaration which meant so much to him.

It is instructive to notice that the Declaration of Independence recognizes at the outset, as the foundation upon which it purports to build, “the Laws of Nature and of Nature’s God.” These “Laws” are offered as enduring standards in the light of which constitutions and statutes are to be framed, applied, and amended. Such standards (informed by dictates of prudence) suggest how recognized rights should be understood and applied (and, if need be, temporarily waived).

IV.

The grand principles and high authority invoked at the outset of the Declaration of Independence are followed, therein, by a detailed roster of grievances. This is a lawyerlike compilation which reflects longstanding political and legal controversies among the English-speaking peoples. Various rights, privileges and immunities are taken for granted in developing the grievances set forth in the Declaration.

Some of these rights are recognized throughout the Constitution of 1787, and especially in Sections 9 and 10 of Article I. Still others are recognized in the Bill of Rights amendments ratified in 1791. Particularly instructive, as a valuable reminder of the constitutional and legal system inherited by the People of the United States, is the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The grievances collected in the Declaration of Independence remind of the decades-long tensions between the North American Colonists and their Mother Country. Lincoln himself, as he made his way to his Inauguration, noticed places where memorable events had happened. Thus, he observed at Trenton, New Jersey (in an address, on February 21, 1861, to the New Jersey Senate):

I am very grateful to you for the honorable reception of which I have been the object. I cannot but remember the place that New-Jersey holds in our early history. In the early Revolutionary struggle, few of the States among the old Thirteen had more of the battle­fields of the country within their limits than old New-Jersey. May I be pardoned if, upon this occasion, I mention that away back in my childhood, the earliest days of my being able to read, I got hold of a small book, such a one as few of the younger members [of this assembly] have ever seen, “Weem’s Life of Washington.” I remember all the accounts there given of the battle fields and struggles for the liberties of the country, and none fixed themselves upon my imagination so deeply as the struggle here at Trenton, New-Jersey. The crossing of the river; the contest with the Hessians; the great hardships endured at that time, all fixed themselves on my memory more than any single revolutionary event; and you all know, for you have all been boys, how these early impressions last longer than any others. I recollect thinking then, boy even though I was, that there much have been something more than common that those men struggled for. I am exceedingly anxious that that thing which they struggled for; that something even more than National Independence; that something that held out a great promise to all the people of the world to all time to come; I am exceedingly anxious that this Union, the Constitution, and the liberties of the people shall be perpetuated in accordance with the original idea for which that struggle was made…

V.

The prudence of Abraham Lincoln may be evident, then, in his avoidance of explicit reminders, as he approached his Inauguration, of the “created equal” language of the Declaration of Independence, emphasizing instead “this Union, this Constitution, and the liberties of the people.” The equality language had been made much of by him as he emerged as a Republican Party leader during the preceding decade. Nor did he find it prudent to repeat, as more and more Southerners contemplated Secession, his longstanding moral condemnation of chattel slavery.

Even without the explicit “created equal” language, however, the grounding of the Declaration in such an affirmation was bound to be evident throughout the document. It may be seen, for example, in the central grievance in the document—that taxes had been imposed on the American Colonists by Parliament without their consent. Slavery, it could have been added, is an extreme form of “taxing” a people without their consent.

Thus, the American emphasis on equality may have made slavery seem particularly troubling. That is, the very humanity of African slaves was in effect denied. Rationalizations on behalf of slavery, therefore, could, depending on circumstances, make everyone “fair game” for ruthless exploitation.

VI.

Besides, Southerners, too, made much of equality (as may be seen in Confederate Vice-President Alexander H. Stephens’s “Corner Stone Speech” of March 21, 1861 [at Savannah, Georgia], when he rejoiced that the Southern States could “stand upon the same broad principles of perfect equality,” among themselves, now that the Confederate Constitution had placed strict limitations upon any use of the Congressional revenue power, recalling the “old thorn of the tariff,” to favor some States at the expense of others States). It was Southern spiritedness, grounded in an insistent sense of their own equal worth as individuals, which made it hard for the government of the Confederacy to be as effective as its Northern counterpart during the Civil War. This was evident in the difficulties the Confederates had, even more than the Unionists, in attempting to conscript troops.

Questions do arise among a people, Lincoln warns in his Inaugural Address, which can “divide them into majorities and minorities.” “If the minority will not acquiesce,” he continues,

the majority must, or [else] the government must cease. There is no other alternative; for continuing the government, [there must be] acquiescence on one side or the other. If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority.

He then poses, in a lawyerlike fashion, a hypothetical:

For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from [the Union]. All who cherish disunion sentiments, are now being educated to the exact temper of doing this. Is there such perfect identity of interests among the States to compose a new Union, as to produce harmony only, and prevent renewed secession?

“Plainly,” he then argues, “the central idea of secession is the essence of anarchy.” This argument is reinforced here (as elsewhere) by him with the advice:

A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissable, so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.

I drew, in effect, on the Lincoln argument here in a Letter-to-the-editor on November 4, 1998 commenting on the “filibuster” rule in the United States Senate which continues (a decade later) to offend our constitutional protocol:

A perverse use of party discipline in this Country in recent years has been the repeated recourse to threats of filibustering in the United States Senate, thereby subverting the duty of the majority to rule. The November 3rd election returns mean, among other things, that there is still no filibuster-proof margin enjoyed by the dominant party in the Senate. (News Stories, October 30 and November 4, 1998.) The proposals for constitutional amendments submitted to the First Congress in 1789 included many suggestions that a “supermajority” (as we call it) be required on one issue after another. The First Congress refused to change what the Framers had done in limiting severely—that is, to a half-dozen instances—the occasions on which more than a majority is needed in either House of Congress. The current Senate rule that keeps a bare majority from ending debate, even after a reasonable time for discussion of the relevant issues, is probably unconstitutional. A self-respecting Senate majority, with the cooperation of the presiding officer, should some day be able, by the use of well-reasoned points of order, to correct both the Senate filibuster rule requiring a three-fifths vote to end debate and the Senate rule requiring a two-thirds vote to change the rules of that body. The restoration of majority rule in the Senate probably depends upon an informed public opinion. A truly self-respecting people would demand that their legislatures should be free to act efficiently, making due allowance for adequate discussion and fair procedures. In short, We the People have to revive, and to insist upon, a reliable standard of constitutionalism in this country.

VII.

Constitutional protocol, reflecting the underlying principles of a proper Anglo-American regime, is drawn on (and thus confirmed) in the Declaration of Independence. The great case of Somerset v. Stewart (1772) recognized, in the opinion of Lord Mansfield (a prominent commercial judge), the fundamental antipathy of the Common Law to slavery. That antipathy found expression in Canada, the realm where a fugitive slave from the American South could expect to find official sympathy and a refuge.

The fugitive slave could also expect to find considerable sympathy in various communities in the Free States of the Union. But slave-hunters were authorized to enlist the support of the Law in returning fugitives to captivity. This is one result of the compromises that evidently had had to be made, in order to secure ratification by the Slave States, when the Constitution was drafted in 1787.

The longer Africans were held in slavery in the United States, however, the more difficult it became to justify their bondage. The way of life of Africans in this Country made them seem and sound more and more like their white masters, a development that was deepened by the mixture of blood. It could be very much a matter of chance, therefore, which men and women of African descent were obliged to continue to conduct themselves in ways deemed appropriate for slaves.

VIII.

Thus, lawyers found it ever more difficult to justify chattel slavery as it had developed in the United States. Lincoln himself recognized that there were significant differences between Africans and the Whites of North America. But he had several times recognized that there were no criteria for slave-eligibility that would not also put various non-Africans at risk of enslavement.

All this pointed up how hopelessly anachronistic Southern slavery was becoming in his time. Europeans, generally, had long come to repudiate not only the obviously barbaric international slave-trade but domestic slavery as well. Indeed, there was in the Southern insistence upon maintaining chattel slavery something very much against the spirit of that Common Law upon which a vital Anglo-American constitutionalism hast to depend.

For the Common Law does depend upon sensible adaptations to changing circumstances. This is a healthy way for the moral sense of a people to develop in a manner that can shape legislation and even reshape constitutions. Lincoln himself recognized, that is, that men and women of African descent were not the only Southerners trapped by the troubling system of slavery that prevailed in his day.

IX.

Abraham Lincoln was not only a lawyer, but especially a lawyer nurtured in the Old Northwest Territory. This meant, among other things, that his people had been very much influenced by the Northwest Ordinance of 1787, one of the Organic Laws of the United States. Among the lessons taught by that great statute is that all the States added to the Union have the powers and prerogatives of the original Thirteen.

Critical to the Northwest Ordinance was its forthright prohibition of slavery anywhere in the vast Territory thus provided for. Along with this prohibition, however, was a stipulation that fugitive slaves seeking refuge in the Northwest Territory could be reclaimed by their masters from the Slave States. This was a “mixed message,” anticipating thereby the many difficulties lawyers would have in coming to terms thereafter with slavery in the United States.

Abraham Lincoln, as President, could deliver slavery-related “mixed messages” of his own, sometimes grim in character, as may be seen in his February 4, 1862, “Stay of Execution of Nathanial Gordon.” The first half of this order confirmed a sentence of execution for a man who had been captured engaging in the long-outlawed international slave-trade:

Whereas, it appears that a Term of the Circuit Court of the United States of America for the Southern District of New York held in the month of November A.D. 1861, Nathaniel Gordon was indicted and convicted for being engaged in the Slave Trade, and was by the said Court sentenced to be put to death by hanging by the neck, on Friday the 7th day of February, A.D. 1862; And whereas, a large number of respectable citizens have earnestly besought me to commute the said sentence of the said Nathaniel Gordon to a term of imprisonment for life, which application I have felt it to be my duty to refuse; And whereas, it has seemed to me probable that the unsuccessful application made for the commutation of his sentence may have prevented the said Nathaniel Gordon from making the necessary preparation for the awful change which awaits him:

This order continues, reflecting thereby the compassionate firmness that may have had to be shown those compromised by the ultimately inexcusable form that involvement in modern chattel slavery, could take, the kind of manly firmness that the experienced lawyer can develop and apply (even as he made sure that Washington’s Birthday not be desecrated by an execution?):

Now, therefore, be it known, that I, Abraham Lincoln, President of the Untied States of America, have granted and do hereby grant unto him, the said Nathaniel Gordon, a respite of the above recited sentence, until Friday the twenty-first day of February, A.D. 1862, between the hours of twelve o’clock at noon and three o’clock in the afternoon of the said day, when the said sentence shall be executed. In granting this respite, it becomes my painful duty to admonish the prisoner that, relinquishing all expectation of pardon by Human Authority, he refer himself alone to the mercy of the common God and Father of all men.

********************
These remarks were prepared for an “Abraham Lincoln as Lawyer” panel presented by the Loyola University School of Law, Chicago, Illinois, March 20, 2009. This panel, chaired by David Yellen, dean of the law school, included Brian Dirck (author of Lincoln the Lawyer [2007]), Mark E. Steiner (author of An Honest Calling: The Law Practice of Abraham Lincoln [20061), and George Anastaplo (author of Abraham Lincoln: A Constitutional Biography [1999]).

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