ABA Connection

More Than Just a Bill of Lading

Posted Feb 2, 2009 12:00 AM CDT
By Paul Finkelman

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The signing of the Emancipation Proclamation is one of the great moments in American history. At the time, even President Lincoln had to calm himself down. He was so nervous and excited that his hands were shaking, but he didn’t want that to show in his signature for fear someone might think he was wavering or uncertain about what he was doing.

But the Emancipation Proc­lamation is unique among the iconic documents of U.S. history, like the Declaration of Independence, the preamble to the Consti­tution or Lincoln’s own Gettysburg Address. They provide thrilling rhetoric and powerful ideas about the nature of freedom. Much the same might have been expected from the Emanci­pa­tion Proc­lamation. After all, Lincoln was one of the greatest craftsmen of the English language in Ameri­can political history.

But the Proclamation is dull and turgid. Historian Richard Hofstadter said it had “all the moral grandeur of a bill of lading.”

How do we explain this? Why, in the most important document he ever wrote, does Lincoln sound like a pettifogger, drafting an almost incomprehensible legal document? And why did it take him so long—nearly two years into the Civil War—to move against slavery?

The answers are tied to Lincoln’s career as a lawyer.

In his first inaugural address, Lincoln said, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no incli­nation to do so.” This statement reflected a legal interpretation of the Constitution that had never been successfully challenged: The states, not the national government, had sole power to regulate all laws concerning personal status, such as marriage, divorce, child custody, inheritance, voting—and slavery. Thus, Lincoln’s position was that he had no “purpose” to interfere with slavery because he had no purpose to violate the Constitution.

By mid-1862, however, Lincoln concluded that, as commander in chief, he did have the power to take slaves away from states in rebellion. Thus, he confined the reach of the Emancipation Proc­la­mation to states in the Confederacy not occupied by federal forces, since under the Constitution he could only free slaves in places that claimed to be outside the United States.

Lincoln’s legalistic approach also explains the tone of the Proclamation. It was a carefully drafted argument designed to withstand a challenge before the Su­preme Court, which was still dominated by Chief Justice Roger B. Taney and four other justices who had been part of the majority in Dred Scott v. Sandford (1857). Lincoln drafted the Proclamation to be specific and precise and to leave no questions about what and who it covered.

When Hofstadter criticized the Proclamation for its lack of “moral grandeur,” he failed to understand the significance of a bill of lading to an old railroad lawyer like Lincoln. A bill of lading was the key legal guarantee for the delivery of goods between parties that were far apart and may never have known each other.

Karl Marx, who was living in Britain while the Civil War raged in the United States, had a clear fix on what Lincoln had done, and why. Writing for a London newspaper, Marx observed that the “most formidable decrees which he hurls at the enemy and which will never lose their historic significance, resemble—as the author intends them to—ordinary summons, sent by one lawyer to another.”

So the Emancipation Proclamation became a “bill of lading” for the delivery of freedom to some 3 million Southern slaves. The federal armies brought the power of the Proclamation with them, freeing slaves every day as more and more of the Confederacy was redeemed. This was the moral grandeur of that great document and Lincoln’s careful strategy to bring it into existence.

See also:

A Docket That Reflects Then and Now

Eloquence in One Draft

The Common Touch at Trial

Training Ground for the Presidency

A Lincoln Reading List

Paul Finkelman

Professor, Albany Law School, Albany, N.Y. He wrote a chapter recounting Abraham Lincoln's legal career for America's Lawyer-Presidents, and he is co-editor of The Political Lincoln: An Encyclopedia (CQ Press, 2008). Contact him at .(JavaScript must be enabled to view this email address).


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