Jewish World Review Feb. 13, 2006 / 15 Shevat, 5766
Mr. Lincoln and the law
The circumstances of his birth February 12, 1809, were not what you would call auspicious: in a log cabin complete with one door, one window and one clay chimney on the Big South fork of Nolin's Creek a couple of miles outside Hodgenville, Ky., on the ever moving American frontier.
A family story has his cousin Dennis Hanks running down to the cabin on hearing the news to pick up the new, wrinkledy, red-faced baby boy from beside an exhausted Nancy Hanks Lincoln. Whereupon little Abraham began squawling no end, and the disgusted Dennis handed him off to an aunt in attendance, saying only: "Take him! He'll never come to much."
A. Lincoln always did have a way of fooling folks who leapt to conclusions. By the time he became the 16th president of the United States, it looked as though the Union was finished. One by one the Southern states had peeled off: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas . . . .
On February 4, 1861, delegates met at Montgomery, Ala., to form the Confederate States of America. When he was sworn in as president a month later, these United States were united only in theory. After the first shots were fired at Fort Sumter early on the morning of April 12, the new president declared that an insurrection existed and put out a call for 75,000 troops. Whereupon the Upper South Virginia, Arkansas, Tennessee and North Carolina seceded, too. In turn, West Virginia would secede from Virginia in order to stay in the Union. All was turmoil.
Maryland was threatening to secede, which meant the national capital, bordered by Virginia and Maryland, might be cut off from the remaining loyal states. The new president made a fateful decision, the first of many that would be hotly disputed in the courts. He ordered the arrest of pro-secessionist lawmakers in that state, declared martial law and suspended the writ of habeas corpus.
The still new president, citing his sworn duty "to preserve, protect and defend" the Constitution, and to "take care that the laws be faithfully executed," defended his action by asking: "Are all the laws but one (the right of habeas corpus) to go unexecuted, and the government go to pieces lest that one be violated?"
In his capacity as president and commander-in-chief, Mr. Lincoln would subject those interfering with military enlistments to martial law, and imprison hundreds of anti-war activists and draft-resisters including doctors, lawyers, editors, judges, civic leaders . . . .
Soon he would establish military tribunals, and have the most eloquent of Northern sympathizers with the Southern cause, a prominent Ohio politician named Clement L. Vallandigham, picked up and deposited beyond the Confederate lines.
He would order Southern ports blockaded, and his generals would suppress various newspapers for various periods of time the Chicago Times, New York World, New Orleans Crescent, a couple of papers in Baltimore (the South and the Gazette), the Philadelphia Evening Journal . . . .
In perhaps his most controversial edict, the president would emancipate all the slaves in Southern territory a move that that is still guaranteed to rankle unreconstructed Confederates at every Civil War roundtable. He would be called a hypocrite for freeing the slaves only where he had no power to do so, and not freeing them where he could.
His only legal justification for such a radical move was a narrow one: the wartime powers of the president. Which was why the Emancipation Proclamation emancipated only slaves in territory held by those at war with the United States of America.
Legally, the proclamation changed nothing, not at first. But all recognized its significance. Morally and politically, it changed everything. A thrill went through the country and the world. This was no longer a war just to save the Union, but a war to set men free. And as the Union troops advanced, so did freedom.
The 16th president of the United States had a gift for putting complicated constitutional issues simply, and letting the people judge. "With public sentiment," he once said, "nothing can fail; without it, nothing can succeed." His words struck home in the Lincoln-Douglas debates, at Gettysburg, in the biblical rhythms of the Second Inaugural, in his quips and stories.
In the end, he would manage to win the most crucial battle of all, the one for public opinion. Which is another reason why I'm writing this column on the 197th anniversary of the birth of Abraham Lincoln in Little Rock, Ark., U.S.A. not C.S.A.
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