The Word Made Flesh: Between Emancipation and Liberation:

What Lincoln Understood About Legal Terms that Most African-Americans Don't

by Michael Davar Long

When Abraham Lincoln, a well educated and trained lawyer, signed the Emancipation Proclamation, he was well aware of the Roman/Latin root of the word emancipation (mancipium) and intimately understood the political nature of the document, as he once plainly stated during a debate in Charleston, Illinois before a crowd of 15,000 that

"I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races; I am not nor ever have been in favor of making voters or jurors of Negroes, nor of qualifying them to hold office, nor to intermarry with white people[1]."

What Lincoln knew and understood about "emancipation" was that the Roman legal context of the matter was not equivalent to the life, liberty and pursuit of happiness to which Anglo-Saxons and other individuals of European descent, who at the time were considered Citizens of America, were privy. As the Roman law would have it, which serve as the foundation of the United States system of civil laws establishment, there is a qualitative difference in the political and social status of an individual or group of individuals who have been emancipated as compared to those who have acquired liberty. This reality is best described on a website from the University of Chicago, which states:

"In ancient Roman law, physical property became classified into two categories: "Res Mancipi" - things that required a mancipation; and "Res Nec Mancipi" - things that did not require a mancipation.

'Mancipium' or mancipation was a formal public ceremony required for recognition of conveyance in 'title' of legal ownership to a thing (mancipatio - taking in hand). The ceremony included striking a scale with a copper ingot as a token of sale. Without this ancient ritual, no exchange had the sanction or protection of the law.

Another manner of acquiring legal title was cessio in iure (cession in court), by vindicatio. An individual claiming title against a possessor would physically claim the thing (or a part of it produced in court). If the possessor failed also to claim the thing by exceptio, the praetor would restore it to the individual claiming title.

This distinction between categories of things ceased in the Roman Law at the time of Justinian, but was carried forward in the development of English law.

Res Mancipi generally encompassed those properties most valuable to agriculture - land, houses, slaves and four-footed beasts of burden. Under Roman law, the list of Res Mancipi was irrevocably closed. In English law, the distinction was carried forward with the identity of Res Mancipi as 'immovables' governed by the laws of 'realty' and Res Nec Mancipi as 'movables,' chattel or goods, governed by the laws of 'personalty.'

Res Nec Mancipi did not require the ceremony of mancipium for conveyance, only simple delivery or traditio. Res Nec Mancipi were considered on a 'lower footing of dignity' allowing for freer circulation of common objects of use and enjoyment. The list of Res Nec Mancipi could be expanded to accommodate new valued items. Transfer of ownership of Res Nec Mancipi was evidenced by physical 'delivery.'

Roman law also formally recognized the distinction between the incorporeal web of social relationships inherent in the concept of ownership, as well as the thing or object being 'owned.' 'Tradition' applicable to Res Mancipi recognized two elements in conveyance of ownership: (1) the consent or intent to transfer ownership title to the thing; and (2) the physical delivery of the thing into the new owner's possession. Mancipation was the ceremony by which the incorporeal legal title was symbolically passed. Title to things not requiring mancipation was presumed to have passed with corporeal delivery[2]."

So when considering whether or not you have your freedom as a so-called African-American, in context to Lincoln's personal view of Blacks, you have to also take into account the nature of the reality of the meaning of the fourteenth amendment which states,

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws[3]."

The key to understand this newly created class of citizens, to which the Declaration of Independence nor the Bill of Rights applies, is that as naturalized citizens granted emancipation, the Negro was still SUBJECT TO THE JURISDICTION OF THE UNITED STATES, though no longer subject the respective state laws nor plantation owners that once held them as their property. It can be said that African-Americans, as well as all citizens of the United States, are both subjects to the jurisdiction of the United States and property of the banks who are the possessors of the warehouse receipts of the citizens in the form of their birth certificate[4].

This reality accounts for the vestiges of slavery that continued to exist with the advent of the Black Codes and Jim Crow laws that swept the nation shortly after the era of Reconstruction. It was then that African-Americans were incarcerated and sent to prison, where the thirteenth amendment of the constitution states,

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction[5]."

And today, with the mass incarceration rates of African-Americans, who disproportionately make up the Prison Industrial Complex and recent reports state that in their lifetime, 1 out of 3 Blacks males will go to prison[6], it isn't hard to see that there is still a peculiar institution intent on capitalizing on the enslavement and exploitation of the so-called African-American.

And recently, as I watched a pre-release special screening of Steve McQueen's film 12 Years A Slave, I couldn't help but notice the precarious state and semblance of freedom that Solomon Northup so preciously held on to and desired throughout the opus, as today in America, Blacks find themselves owning less property than when they did upon being initially emancipated. It is also a bitter reality to notice the wealth gap between Black and White households, which is increasing at a substantial rate. However, with the purchasing power of Blacks in America at an exorbitant $1.1 trillion dollar level, it is surprising that Blacks haven't invested in the securing of their future with educational institutions as well as possibly considering correctional services which would behoove our community to contribute to the rehabilitation of 'Miseduated Negroes.'

Yet in the final analysis of this most subtle reality that lies at the very cusp of consciousness amongst intellectual circles in the Black community, I wonder why there are so few voices who are speaking and making our people aware of this matter. Herein lies the key to our ultimate hopes of being self-determinant and acquiring the precious state of liberty that is our human right. This focus and aim is what El Hajj Malik El Shabazz, better known as Malcolm X, was striving to get Blacks to understand throughout his post Mecca years as he so eloquently stated in his seminal speech The Ballot or the Bullet:

"We need to expand the civil-rights struggle to a higher level-to the level of human rights. Whenever you are in a civil-rights struggle, whether you know it or not, you are confining yourself to the jurisdiction of Uncle Sam. No one from the outside world can speak out in your behalf as long as your struggle is a civil-rights struggle. Civil rights comes within the domestic affairs of this country. All of our African brothers and our Asian brothers and our Latin-American brothers cannot open their mouths and interfere in the domestic affairs of the United States. And as long as it's civil rights, this comes under the jurisdiction of Uncle Sam. But the United Nations has what's known as the charter of human rights; it has a committee that deals in human rights. You may wonder why all of the atrocities that have been committed in Africa and in Hungary and in Asia, and in Latin America are brought before the UN, and the Negro problem is never brought before the UN. This is part of the conspiracy. This old, tricky blue eyed liberal who is supposed to be your and my friend, supposed to be in our corner, supposed to be subsidizing our struggle, and supposed to be acting in the capacity of an adviser, never tells you anything about human rights. They keep you wrapped up in civil rights. And you spend so much time barking up the civil-rights tree, you don't even know there's a human-rights tree on the same floor."

The time has come for us, as so called African-Americans, to find the tree of life where our human rights are secure in our being and we no longer find ourselves subject to the rulership of man, but the rulership of our heavenly King and Father. Then, and only then, will we find our true place in both history and our destiny, and the world will also know and experience the order of creation that was intended to be from the beginning.

Selah.