Abraham Lincoln – from the Publisher’s Collection

Abraham Lincoln had lawfully been elected as President of the United States in November of 1860. Immediately following Lincoln’s election, with the knowledge of an impending bankruptcy on the part of the United States government due to the failure to pay debts with lawful money, the reluctance to finance more than its share of federal expenditures, and the ever-increasing antagonism against the institution of slavery, the Southern States seceded from the Union with the intention of forming their own nation.

The United States House of Representatives adjourned sine die [1] on March 2, 1861, and under parliamentary law, ceased to exist as a lawful deliberative body. An adjournment sine die closes the session, and if there is no provision for convening the assembly again, the adjournment dissolves the assembly.

Throughout his Presidency, Lincoln had always maintained that his main objective was to preserve the Union. Two days later, on March 4, 1861, Lincoln took office and in his first Inaugural Address stated:

“… we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”

By March 27, 1861, seven Southern States had vacated remaining congressional seats and the quorum to conduct business under the Rules of the House was lost. The only votes that Congress could lawfully take, under Parliamentary Law, were those to set the time to reconvene, take a vote to get a quorum, and vote to adjourn and set a date, time and place to reconvene at a later time, but instead, Congress had abandoned the House without setting the date to reconvene.

The Senate subsequently adjourned sine die on March 28, 1861. Southern State legislatures, by virtue of their secession from the Union, adjourned sine die, and some legislatures in the Northern States also adjourned sine die. This would play a major role in events which would ultimately follow, namely the fact that State governments had abandoned their State offices, thereby possibly relinquishing all rights to such.

The opening shot of the Confederate rebellion rang out on April 12, 1861, and Lincoln immediately responded with his first proclamation, absent the presence of either house of Congress, which stated in part:

“Now, therefore, I, ABRAHAM LINCOLN, President of the United States, in virtue of the power vested in me by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed.”

Lincoln usurping authority established by Constitutional limitations, because the only branch of the government with the enumerated power to call out the State militias was the now-defunct Congress.

The Congress shall have Power To: … provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; – Art. 1, Sec. 8, Cl. 15 of the U.S. Constitution.

Acting under the rules of war and the law of necessity, Lincoln called out the militia. In the same proclamation, Lincoln subsequently proceeded to reconvene the Congress, as it was within his authority to do, fully knowing that Congress did not have a quorum upon which to properly conduct business. Lincoln continued to prosecute the war, issue proclamations and have the de facto Congress create laws.

The inherent problem at this time was that the Federal Government could not declare war against the Southern States as it would have been recognition of the sovereignty of the Confederate States of America. If this sovereignty had been recognized, there could have been no claim made against the property of the States or the People. The President was soon granted power by Congress to confiscate property — “seized, confiscated and condemned” — when used for insurrectionary purposes, the same manner in which a libel in admiralty is commenced.

The American people have been accustomed to believe that the United States government has the three distinct and separate branches, namely the legislative, the executive and the judicial. The first suggestion of the “Executive Government” of the United States is noted within Abraham Lincoln’s Proclamation of September 22, 1862, which states:

“… the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons …”

Recalling that the Constitution was created by the “People” of the United States and that the “persons” held to slavery were considered to be nothing more than property, these “persons” (slaves) could not be part of the Preamble, or the People thereof, as they were not of the lineage (posterity) of the white settlers who had created the Constitution. Upon being freed, they could not possibly have the same rights which the People of the several States enjoyed. Therefore something radically different had to be done to maintain the freedom of such “persons.” Texas stated this same sentiment in its Declaration of Causes regarding secession:

“We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.”

“That in this free government all white men are and of right ought to be entitled to equal civil and political rights [emphasis in the original]; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding states.” – A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union, February 2, 1861.

  The Emancipaion Proclomation

Lincoln’s Proclamation of September 22 gave 100 days notice of his intentions as the Commander in Chief to make use of the military forces which were under his control in order to protect such “persons” who had been held in slavery. This proclamation was supported by the subsequent proclamation of January 1, 1863, which has been historically referred to as The Emancipation Proclamation

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.”

“… that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.”

Within this proclamation, the distinction is shown between “people” and “persons.” The “persons” were to be protected by the “Executive Government

Emancipation is the liberation of children from parent control, whereas manumission is the freeing of a slave by his master.

Emancipation, is an act by which a person who was once in the power of another is rendered free. By the laws of Louisiana, minors may be emancipated. Emancipation is express or implied.

Express emancipation. The minor may be emancipated by his father, or if he has no father, by his mother, when she shall have arrived at the age of fifteen years. This emancipation takes place by declaration to that effect of the father or mother before a notary public, in the presence of two witnesses. The orphan minor, may likewise be emancipated by the judge, but not before he has arrived at the full age of eighteen years, if the family meeting called to that effect, be of opinion that he is able to administer his property. The minor may be emancipated against the will of his father and mother when they ill treat him excessively, refuse him support, or give him corrupt example.

The marriage of the minor is an implied emancipation.

The minor who is emancipated, has the full administration of his estate, and may pass all acts which may be confined to such administration, grant leases, receive his revenues and moneys which may be due him, and give receipts for the same. He cannot bind himself legally by promise or obligation, for any sum exceeding the amount of one year of his revenue. When he is engaged in trade, he is considered as having arrived to the age of majority, for all acts which have any relation to such trade.

The emancipation, whatever be the manner in which it may have been effected, may be revoked, whenever the minor contracts engagements which exceed the limits prescribed by law.

By the English law, filial emancipation is recognized chiefly in relation to the parochial settlement of paupers. See Manumission.Bouvier’s Law Dictionary, Vol. 1, p. 509 (1843).

Manumission, contracts, is the agreement by which the owner or master of a slave sets him free and at liberty; the written instrument which contains this agreement is also called a manumission. In the civil law it was different from emancipation which, properly speaking, was applied to the liberation of children from paternal power. – Bouvier’s Law Dictionary, Vol. 2, p. 123 (1843).

Five weeks prior to the surrender of Robert E. Lee, the Bureau of Refugees, Freedmen, and Abandoned Lands, often referred to as the Freedmen’s Bureau, was established within the War Department by the act of March 3, 1865.

Meantime the election (1864) took place, and the administration, returning from the country with a vote of renewed confidence, addressed itself to the matter more seriously. A conference between the houses agreed upon a carefully drawn measure which contained the chief provisions of Charles Sumner’s bill, but made the proposed organization a department independent of both the War and Treasury officials. The bill was conservative, giving the new department “general superintendence of all freedmen.” It was to “establish regulations” for them, protect them, lease them lands, adjust their wages, and appear in civil and military courts as their “next friend.” There were many limitations attached to the powers thus granted, and the organization was made permanent. Nevertheless, the Senate defeated the bill, and a new conference committee was appointed. This committee reported a new bill, February 28, which was whirled through just as the session closed, and which became the act of 1865 establishing in the War Department a “Bureau of Refugees, Freedmen, and Abandoned Lands.”

This last compromise was a hasty bit of legislation, vague and uncertain in outline. A Bureau was created, “to continue during the present War of Rebellion, and for one year thereafter,” to which was given “the supervision and management of all abandoned lands, and the control of all subjects relating to refugees and freedmen,” under “such rules and regulations as may be presented by the head of the Bureau and approved by the President.” A commissioner, appointed by the President and Senate, was to control the Bureau, with an office force not exceeding ten (10) clerks. The President might also appoint commissioners in the seceded states, and to all these offices military officials might be detailed at regular pay. The Secretary of War could issue rations, clothing, and fuel to the destitute, and all abandoned property was placed in the hands of the Bureau for eventual lease and sale to ex-slaves in forty-acre parcels.

Thus did the United States government definitely assume charge of the emancipated Negro as the ward of the nation. – The Freedmen’s Bureau, W. E. Burghardt Du Bois, Atlantic Monthly 87: 354-365 (1901).

Under the doctrine of parens patriæ, the State is guardian of the ward, with the ward being totally dependent upon the State.

WARD, domestic relations. An infant placed by authority of law under the care of a guardian.

2. While under the care of a guardian a ward can make no contract whatever binding upon him, except for necessaries. When the relation of guardian and ward ceases, the latter is entitled to have an account of the administration of his estate from the former. During the existence of this relation, the ward is under the subjection of his guardian, who stands in loco parentis. – Bouvier’s Law Dictionary, Vol. 2, p. 640 (1856).

Ward of the state. A person who is housed by, and receives protection and necessities from, the government. – Also terms state’s ward. – Black’s Law Dictionary, 8th ed., p. 4897 (2004).

Due to the doctrine of parens patriæ resulting from a contractual nexus with the State, the State has acquired interests in the labor, finances, property and children of the People of America. Note the distinction between the two definitions from different eras –

“Parens patriæ. Father of his country. In England, the king; in America, the people. “ – Black’s Law Dictionary, Vol. 2, p. 273 (1874).

“Parens patriæ. Father of his country; parent of the country. In England, the king. In the United States, the state, as a sovereign – referring to the sovereign power of guardianship over persons under disability … such as minors, and insane and incompetent persons; … “ – Black’s Law Dictionary, 4th Rev. Ed., p. 1269 (1968).

The “abandoned lands” were those confiscated by the United States government and placed within the control of the Bureau of Freedmen –

It had long been the more or less definitely expressed theory of the North that all the chief problems of emancipation might be settled by establishing the slaves on the forfeited lands of their masters, … The Freedmen’s Bureau, W. E. Burghardt Du Bois, Atlantic Monthly 87: 354-365 (1901).

~ Footnote ~
[1] sine die. Without day. A judgment for a defendant in many cases is quod eat sine die, that he may go without day. While the cause is pending and undetermined, it may be continued from term to term by dies datus. (q.v.) See Huxley’s Judgments & Rastal’s Entries, passim; Co. Litt. 362b & 363a. When the court or other body (congress) rise at the end of a session or term they adjourn sine die. – A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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