October 16, 1854 – Lincoln Speaks at Peoria

The Kansas-Nebraska Act, passed on May 30, 1854, was “one of the most explosive congressional statutes of American history” according to Lewis Lehrman, whose book Lincoln at Peoria: The Turning Point focuses on Lincoln’s reaction to this legislation. The act repealed the Missouri Compromise of 1820 (which restricted slavery to territory south of the 36 degrees and 30 minutes parallel) and mandated that “popular sovereignty” would decide whether Kansas and Nebraska would come into the Union as slave or free states.

Judge Stephen Douglas, Senator from Illinois, had pushed through the Kansas-Nebraska Act as part of a quid pro quo with Southerners so he could get a transcontinental railroad built along a northern route. Had he failed, Attorney Abraham Lincoln might never have gotten back into politics, having “retired” from that pursuit after finding that his success didn’t match his ambition.

Lincoln and Douglas

But Lincoln could not sit by and let the great moral wrong, as he saw it, of the extension of slavery prevail. He hated slavery, and he loved the Union, and thought that the Kansas-Nebraska Act threatened to destroy the latter by extending the former. Separation into two nations was not an option for Lincoln. He believed, as Lehrman explains, “if the American Union were divided between slave states and free states, the extinction of slavery in the South would become implausible.” Thus he began his crusade to save “the last best hope of earth.”

The speech he made at Peoria, Illinois on October 16, 1854, running over three hours, is considered to be the most seminal in Lincoln’s career, containing most of the ideas that informed his politics and presidency ever after. Because of the importance of this speech; the respect it is accorded by historians; and the rhetoric that would be later refined and reiterated by Lincoln in other platforms, Lehrman undertook a detailed analysis of this speech along with its historical antecedents. He follows his analysis with a reproduction of the speech in full. The book is repetitive, but the complexity of the arguments made by Lincoln and Douglas merits multiple approaches from different angles.

Lincoln was trying to establish a civil religion, with the Founding Fathers as the Patriarchs and the Declaration of Independence as scripture. The underlying principle of this religion was that “all men are created equal.” Lincoln acknowledged that the Founders had difficulty executing policies fully reflecting their loathing of slavery in light of the compromises necessary for union, but argued that their words and enactments signaled the intent that slavery should “wither away” as soon as possible.

Lincoln contended that the Founders “meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence. …” In other words, the purpose of law is to establish normative standards, and act as a bridge, from that which is, to that which ought to be. This philosophy was reified in the Declaration of Independence.

At Peoria, Lincoln laid out his objections to slavery from historical, moral, logical, and political perspectives. Lehrman emphasizes Lincoln’s moral arguments, but Lincoln wasn’t exactly addressing an audience of abolitionists. Fortunately, Lincoln had more than one arrow in his quiver.

First he cited the actions taken by the Founders that proved they wanted slavery to die out (such as the ban against slave trading and the forbidding of slavery in the new Northwest Territories). He asserted that “the argument of ‘necessity’ was the only argument they ever admitted in favor of slavery.”

Next he rebutted the legitimacy of the claim that popular sovereignty was justified [on the slavery issue] by the founding principle of “consent of the governed.” Popular sovereignty for Kansas and Nebraska meant that the people themselves in those territories could decide whether or not to allow slavery. Lincoln noted that blacks certainly wouldn’t give such consent. And aren’t blacks men? Lincoln maintained that whites couldn’t possibly think slaves were not men and only property; else why would “this vast amount of property [free black men] be running about without owners? We do not see horses or free cattle running at large.”

Abraham Lincoln, 1854

Furthermore, he charged, the ostensible neutrality [Lincoln called it “declared indifference”] of popular sovereignty merely hides “covert real zeal for the spread of slavery,” and establishes “no right principle of action but self-interest.” By way of explanation, he denied that whites would necessarily opt not to take advantage of free slave labor if given the opportunity, or that blacks would have the wherewithal to defend themselves from the practice. (The previous week in Bloomington Lincoln averred that Southern slaveholders were neither better nor worse than the Northerners: “If we were situated as they are, we should act no better than they…. We never ought to lose sight of this fact in discussing the subject.”)

He also reminded his audience that slave states got extra votes in Congress from having slaves, with their influence double that of the number of their free citizens. (In order to ascertain the number of Representatives and presidential electors a state could have, five slaves were counted as equal to three whites.) Not only did this confer disproportionate power on the South, but it also thereby reduced each vote of free white men in the North by half! “It is an absolute truth,” he said, “that there is no voter in any slave State, but who has more legal power in the government, than any voter in any free State.” Lincoln wryly observed that “whether I shall be a whole man, or only, the half of one, in comparison with others, is a question in which I am somewhat concerned…” This de facto result of slavery, he charged, was just not fair.

He emphasized that the rest of the world looked to America as a beacon of liberty, but “our republican robe is soiled, and trailed in the dust.” He advocated that voters help “turn slavery from its claims of ’moral right,’ back upon its existing legal rights, and its arguments of ‘necessity’” so that “we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving.”

This book is not an easy account of the ideological contours of Lincoln’s thought. It requires hard work on the part of the reader. In return, however, you are rewarded with a much deeper understanding of the passions that drove Lincoln and that shaped his policies in the critical years in which he guided our Ship of State.

Lincoln at Peoria: The Turning Point by Lewis E. Lehrman published by Stackpole Books, 2008

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Book Review of “1858: Abraham Lincoln, Jefferson Davis, Robert E. Lee, Ulysses S. Grant and the War They Failed to See,” by Bruce Chadwick

Chadwick argues that at the start of the Civil War in 1861, Abraham Lincoln, William Seward, Jefferson Davis, Robert E. Lee, and William Tecumseh Sherman “were in place because of events that occurred three years earlier, in 1858…” Well, you’ve gotta have a gimmick, to borrow a line from the musical Gypsy, in order to write a new book on the Civil War. It’s not a bad book, nor is it a great book, but it does provide a different twist on the war’s causation by discussing the positions of these five men in 1858, as well as those of three others: President James Buchanan, Senator Stephen Douglas, and activist abolitionist John Brown. (You may ask, what about Ulysses S. Grant? Well yes, his name is in the title, but he really doesn’t put in much of an appearance. And these actors failing to see the war coming? Not. Someone should have reworked the title.)

Abraham Lincoln

Some of Chadwick’s mini-portraits contain surprising observations. Jefferson Davis, for example, was so [comparatively] kind to his slaves that he bought them “designer” clothes, had them tutored, and even ate with them. And yet, he was the most vociferous defender of slavery in the Senate. Robert E. Lee, on the other hand, couldn’t stand the thought that his slaves might actually take breaks or be distracted in any way from constant labor, all the while professing to be *against* the institution of slavery.

President Buchanan was “a spectacular failure” who ignored the slavery controversy, and spent most of his political capital trying to defeat a fellow-party member, Stephen Douglas, against whom he held a personal vendetta. In fact, claims Chadwick, if it weren’t for Buchanan’s efforts against Douglas (which involved manipulating patronage, favors, making threats, and outright campaigning), Lincoln might never have been able to win the election.

James Buchanan

William Seward, a brilliant man who added much-needed experience to Lincoln’s administration, thought that *he* would win the 1860 Republican presidential nomination. He was so sure of it, he left for Europe for an eight-month tour! Lincoln’s supporters, meanwhile, averred that Lincoln was the most electable candidate, since Seward’s stand against slavery was more radical than Lincoln’s. Seward had spoken out provocatively in October of 1858 at Corinthian Hall in Rochester, New York, declaiming:

“The slave system is not only intolerable, unjust, and inhuman towards the laborer, whom, only because he is a laborer, it loads down with chains and converts into merchandise, but is scarcely less severe upon the freedman, to whom, only because he is a laborer from necessity, it denies facilities for employment, and whom it expels from the community because it cannot enslave and convert him into merchandise also.”

And then, to the rage of Southerners, Seward added, “It [slavery] is an irrepressible conflict between opposing and enduring forces, and it means that the United States must and will, sooner or later, become either entirely a slaveholding nation or entirely a free labor nation.”

William H. Seward

The framework in which these biographies are presented is made up of several seminal occurrences in 1858 that ramped up the conflict between pro- and anti- slavery forces. One was the fight over the adoption of a constitution for the newly proposed state of Kansas: was it to be a slave state or a free state? A second was the election battle for senator from the state of Illinois, which resulted in seven spectacular debates between Lincoln and Douglas. And a third was a series of “rescues” of slaves by abolitionists, including a group of men in Oberlin, and a foray by John Brown and his followers.

These events and the men that played so large a role in them certainly helped precipitate the disastrous collision that left over 630,000 dead by 1865. If, like me, you enjoy reading all you can on that remarkable era in our history, this book provides an interesting set of lenses from which to view its chief protagonists.

Published by Sourcebooks, 2008

April 16, 1862 – D.C. Compensated Emancipation Act

On this day in history, President Abraham Lincoln signed a bill ending slavery in the District of Columbia. Passage of this law came eight and one-half months before President Lincoln issued his Emancipation Proclamation.

Upon signing the bill, Lincoln issued the following statement:

“FELLOW CITIZENS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES:

The act entitled “an act for the release of certain persons held to service or labor in the District of Columbia,” has this day been approved and signed.

I have never doubted the constitutional authority of Congress to abolish slavery in this district, and I have ever desired to see the National Capital freed from the institution in some satisfactory way. Hence there has never been in my mind any question upon the subject except the one of expediency, arising in view of all the circumstances. If there be matters within and about this act which might have taken a course or shape more satisfactory to my judgments, I do not attempt to specify them. I am gratified that the two principles of compensation and colonization are both recognized and practically applied in the act.

In the matter of compensation, it is provided that claims may be presented within ninety days from the passage of the act, “but not thereafter”, and there is no savings for minors, femes covert, insane or absent persons, I presume this is an omission by mere oversight, and I recommend that it be supplied by an amendatory or supplemental act.”

ABRAHAM LINCOLN.
Washington, April 16, 1862

The act provided for immediate emancipation, compensation to former owners who were loyal to the Union of up to $300 for each freed slave, voluntary colonization of former slaves to locations outside the United States, and payments of up to $100 for each person choosing emigration. To that end, the act set aside $1 million. Over the next 9 months, the Board of Commissioners appointed to administer the act approved 930 petitions, completely or in part, from former owners for the freedom of 2,989 former slaves.

In Washington, D.C., African Americans greeted emancipation with great jubilation. Until 1901, they celebrated Emancipation Day on April 16 with parades and festivals, when a lack of financial and organizational support forced the tradition to stop. It restarted in 2002.

In 2005, pursuant to D.C. Law 15-288, April 16th would become a recognized legal public holiday in D.C. and the DC Emancipation Day parade along Pennsylvania Avenue took place again after an absence of more than one hundred years.

You can find out more about current celebrations of D.C. Emancipation Day here.

Review of “President Lincoln: The Duty of A Statesman” by William Lee Miller

Miller endeavors to examine “the moral performance of Abraham Lincoln” as President. Therefore, as the author explains, the book is only indirectly about Lincoln’s statesmanship and more about his moral conduct in office. He is also careful to distinguish (as Lincoln himself did) choices Lincoln made in fulfillment of his oath of office from those he might have made based on his personal predispositions.

It’s an interesting perspective in one sense, because, as Miller observes, many politicians have had more political experience than Lincoln but “[a] fool or knave can rise through many eminent positions and still be a fool or knave.” So Miller wants to show how Lincoln excelled in spite of his lack of experience, because he had such a strong moral fiber.

My biggest criticism with this book is that it reads more like a billet doux than a history. It is overly reverential: Lincoln may have taken an oath to preserve, protect, and defend the Constitution, but Miller seems to have taken the same oath vis-a-vis Lincoln. He repeatedly characterizes Lincoln as “decisive,” “steadfast” tenderhearted,” “resilient,” “resolute” – a lot of adjectives making the basic point of “strong yet gentle.”

My other complaint is that the prose is anachronistically florid. Not only does Miller hijack and recycle many of Lincoln’s own familiar phrases (“mystic chords,” “mighty scourge” and so on), but he also interjects his own overly dramatic prose. He refers to “the golden thread of magnanimity and generosity that would wind its way through his presidency.” He makes reference to events that “would ring forever thereafter in American memory” and provide “stories forever.”

Those criticisms aside, the book contains some interesting observations and analyses. In attempting to justify Lincoln’s very hesitant stance on the abolition of slavery, Miller does a thorough job of detailing the tenuous positions of the border states, and how essential it was for the viability of the Union for Lincoln to hold on to them.

He also includes an interesting theory of how the Emancipation Proclamation – so legalistic and even exclusionary – came to be seen as a great document of liberation. The Proclamation did not set all the slaves free, but only those in the Confederacy, over whom Lincoln did not have any control. In fact, Miller charges, it was white Southerners who, greatly exaggerating the document’s import out of fear and hyperbole, conveyed a much more momentous significance to this decree. Their indiscriminate condemnations reached into the slave community, convincing blacks that northerners wanted them liberated. Great waves of escaped slaves thus attached themselves to invading northern armies, much to the chagrin of the latter who then had to care for them.

Lincoln, for his part, continually protested that if he could save the Union without freeing any slaves he would do so. However, when he thought the North was losing the war and that he would not be re-elected, he encouraged Frederick Douglass to familiarize slaves with the Emancipation Proclamation. Slaves who had made their way behind Union lines by war’s end could stay out of bondage.

Immense changes took place during Lincoln’s time in office. When he began as President, the U.S. Army totaled just over 17,000 men and just over 1,000 officers. When war was declared, one-third of the officers promptly resigned and joined the Confederacy. There were significant defections in civilian departments as well; ninety employees in the War Department alone resigned. Confusion and corruption characterized the early days of the Administration. Lincoln’s generals in the field made their own policies, sometimes in direct contradiction to Lincoln’s commands, threatening his fragile coalitions and alliances. Lincoln had not only to surmount all of these obstacles but to do it in such a way that minimized alienating his fragile governing coalition. He also had to exercise control over the war machine while resisting the excesses of wartime governance. By the war’s end, close to 3 million soldiers had served in both North and South. This number included 186,017 free blacks and freed slaves in the army and 10,000 in the navy. Some 620,000 soldiers were dead (one-third of those from battle; the rest succumbed to disease or the effects of hardship).

Company E, 4th United States Colored Troops

In Lincoln’s second inaugural address, he argued that both sides were complicitous in the war. Nevertheless, he noted: “It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces; but let us judge not that we be not judged.” Rather, he asked for “malice toward none, and charity towards all,” and then six weeks later he was dead. Many politicians in the victorious North had no such qualms about revenge, and Lincoln’s successor had no moral authority to temper their vengeance.

Evaluation: Lincoln’s policies and positions can easily be vindicated without couching them in an encomium. Although the book includes quite a bit of interesting primary source material, its value is diminished by its non-scholarly tone.

Rating: 3.5/5

Published by Knopf, 2008

March 10, 1863 – The Supreme Court Decides Prize Cases as Reported by “Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War” by Mark E. Neely Jr.

The subtitle of this book on Lincoln, “Constitutional Conflict in the American Civil War,” is much more descriptive of its content than the main title. Only the first third of the book deals with Lincoln’s actions, and even then, much of the constitutional analysis applies to the writings of Lincoln’s contemporaries like Horace Binney, William Whiting, and Sidney George Fisher. In any event, the book’s focus is on the constitutional issues faced by not only the North, but also the issues faced by the Confederate States under their own constitution. It gives considerable coverage to the major constitutional issue adjudicated by the Supreme Court during the Civil War, i.e., Prize Cases, as explained below.

The first important question faced by both the North and the South was whether the Southern states could constitutionally withdraw from the Union. Unfortunately, the Constitution itself had nothing to say on the matter. By contrast, even the “feeble” Articles of Confederation had claimed the Union was perpetual. In his inaugural address, Lincoln skirted the constitutional issue, and relied instead on a legal argument: if the Union was merely a contractual arrangement among the states, the South could not unilaterally rescind that contract by secession—it required the assent of the other parties to the contract. Lincoln also contended that the nation antedated the Constitution:

Having never been states, either in substance or in name, outside of the Union, whence this magical omnipotence of “state rights,” asserting a claim of power to lawfully destroy the Union itself?…The states have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the states, and, in fact, it created them as states.”

This claim had the advantage of adopting the Declaration of Independence, with its expression that all men were created equal, as a founding document. Famously, Lincoln solidified this vision at Gettysburg, declaring that the nation was created “four score and seven years ago” (the time of the Declaration of Independence) rather than “three score and sixteen years ago” (the time of the adoption of the Constitution).

Lincoln’s construction was not without precedent. In fact, the first Supreme Court Justice, James Wilson, wrote in Chisholm v. Georgia (2 US 419, 465, 1793):

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution will be satisfied that the people of the United states intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive and judicial, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government?”

Lincoln also was savvy enough to be aware of the cultural negotiation of both history and memory, and that he could use his facility with words to reframe both of them.

Lincoln deliberately avoided subjecting the question of secession to any court rulings. Instead, the constitutionality of secession was to be decided in presidential speeches, spirited newspaper editorials, widely read pamphlets, and on the battlefield.

1861 tribute to commander of Union forces Gen. Winfield Scott, shown as the mythical Hercules slaying the many-headed dragon or hydra, here symbolizing the secession of the Confederate states.

Lincoln did not trust the Supreme Court at that time. The Court was led by Chief Justice Roger B. Taney, the architect of the infamous Dred Scott decision, about which Lincoln had bruited powerful critiques. Lincoln wanted to avoid giving Taney the opportunity to turn the Court’s authority against him, because the constitutionality of other important issues loomed as well, such as the suspension of the writ of habeas corpus, the power to emancipate the slaves, and the power of the federal government to conscript members of the state militias. Taney had expended significant thought on some of these issues, and Neely says he was “itching to weigh in” on them. He never had the chance, however, because none of them ever reached the Supreme Court during the war.

Chief Justice Roger B. Taney

During the Civil War, the writ of habeas corpus was used to attempt to free two groups of prisoners: (1) “political prisoners,” those jailed for inciting desertion by troops or otherwise “hurting the [Union] army” and (2) underage soldiers who changed their minds about serving in the army. Article I, section 9, clause 2 of the Constitution stated: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It does not, however, say who or which branch of government (e.g. Congress, the President, Courts) is authorized to do the suspending. Lincoln simply arrogated the power. In the process, he ignored the opinion of Chief Justice Taney in the Ex parte Merryman case, in which Taney opined that only Congress, not the President, could suspend the writ. [Note that Merryman was not an opinion of the full Supreme Court; rather it was simply a writ issued by Taney pursuant to the Court’s original jurisdiction in habeas corpus cases for federal prisoners.] Lincoln’s decision to ignore Taney’s opinion was never tested in court. It became moot at the end of the war.

Lincoln believed emancipation of the slaves was important for the war effort. However, the Constitution seemed to recognize slaveholders’ property rights in their slaves, and the 5th amendment guaranteed those rights could not be abridged without due process of law. Arguably, the war powers clause authorized the president to commandeer the property of the nation’s opponents, but that right was thought to be limited to actions necessary for victory or the safety of the soldiers. Lincoln could not prove that emancipation was necessary—only that it was useful. Nonetheless, the Proclamation was issued as soon as Lincoln thought it was politically feasible, and it was never challenged in court.

Interestingly, Lincoln feared that the racism of his own troops might render the Proclamation a disadvantage to the Union cause. In the event, the nationalism of the troops trumped (temporarily, at least) whatever racism was prevalent, and the Proclamation did not sow significant dissension in the ranks.

The Union’s power to confiscate Confederate ships pursuant to its blockade was the constitutional issue that was ruled upon by the Supreme Court during the war. Prize Cases of 1863 (67 U.S. (2 Black) 635) questioned whether Lincoln acted within his presidential power when he ordered the blockade of Southern ports in April of 1861, authorizing the seizure of vessels from which revenues could not be collected on account of the “insurrection.” The owners of merchant vessels affected by the blockade sued for the restoration of their property on the ground that blockades were only legal in wartime, but no war had been declared by Congress, as mandated by the Constitution. Lincoln himself refused to recognize the conflict as a “war” (with its implication of two sovereign nations in dispute) rather than a “rebellion” or “insurrection.” In a 5-4 decision, the Court held that the hecatomb taking place could not be ignored. It was just too massive. War may not have been formally declared, but the Court claimed to know a war when it saw one. In the words of Justice Robert C. Grier, “As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know.”

Justice Robert Cooper Grier

Neely calls this decision “the most important Supreme Court decision of the Civil War.” Not only did the Court opine that the war could not be ignored as a fact, but it also disagreed on whether a civil war had to be publicly declared by Congress. James M. Carlisle, representing the ship-owners, insisted that “a war was something declared by Congress, period.” He averred:

The matter then comes back necessarily to the pure question of the power of the President under the Constitution. And this is, perhaps, the most extraordinary part of the argument for the United States. It is founded upon a figure of speech, which is repugnant to the genius of republican institutions, and above all, to our written Constitution.”

Richard Henry Dana, Jr., for the government, countered with the winning argument that war was “a state of things” and “not an act of legislative will.”

It’s a fascinating case, and still is relevant today. [For example, does the current threat by terrorists trigger the president’s war powers?]

The Democrats also mounted an attack on the government’s war measures in state courts, where they expected a friendlier reaction than in federal courts. Their effort was unsuccessful, according to Neely, because the war ended before the cases could be resolved. He states, “[T]he nation was saved from violent confrontation with willful judges by the slowness with which the wheels of justice turned in the middle of the nineteenth century.”

More than 30% of the book is devoted to the issues faced by the Confederate states under their constitution. The Confederacy was formed by a process nearly identical to the process that formed the original United States. Each rebellious state held a “constitutional convention” that was outside of and in addition to its established state government. Neely asserts that the elections for the secession conventions were especially clean by the standard of the time, with a distinct absence of fraud or strong-arm tactics. The movement to secede, in Neely’s words, was “profoundly democratic.” [It might be suggested that because of the near unanimity of the sentiments of those attending the conventions, there was no need for fraud. However, fraud returned to southern elections in full flower after the war ended, especially with the prospect of freed black men and other republicans gaining political office.]

Although the Confederate constitution borrowed heavily from the federal constitution, each seceding state retained more autonomy under it than it had under the federal constitution—no surprise there. The government that resulted was not highly authoritarian, as one might expect from one led by slaveholders. Rather, it was very democratic in the sense the modern Israeli government is democratic: its constitution speaks of giving all its adult citizens equal rights [the Confederacy limited those rights to males], yet it blithely ignores the presence of a large minority who live within its jurisdiction, but who are accorded few if any rights.

The secession conventions produced constitutional crises of their own. Both the formerly legitimate state governments and the secession conventions continued to act, each ostensibly the sovereign power. Thus, every southern state had two separate governments claiming ultimate authority. Nevertheless, with the exception of South Carolina, the states resolved the problem pretty much without rancor and never with violence. Neely writes,

…some states simply enjoyed the fruits of the emergency actions of the conventions, including the democratization of war by ensuring that the men who fought for the slaveholding republic…could vote in [military] camp….Had the Confederacy prevailed…it would doubtless celebrate that period of government by secession conventions as the United States does today the 1787 Philadelphia constitutional convention.”

Neely raises interesting questions in comparing the Confederate and federal constitutions. For example, why did the Confederacy chose to emulate the federal form so closely? (The President even had a “white house” of his own.) He also notes that Jefferson Davis, like Lincoln, suspended the writ of habeas corpus, and even (near the end of the war) – out of desperation – considered arming at least some of the slaves.

White House of the Confederacy in Richmond

Part of Davis’s problem was that the central government of the Confederacy was not as strong or centralized as that of the Union. Although there were Confederate national courts, there was no Supreme Court. The founders of the Confederacy were always troubled by their need to accommodate state rights with an expanded federal authority necessary to fight a war. Southern governors jealously guarded their state militias, and did not necessarily want them subject to conscription into the national army. The issue of conscription was tested in several state courts. Some lower courts found conscription illegal, but all the state supreme courts upheld its legality on appeal. Curiously, the Confederate national courts seem never to have organized a reporting system; thus their national courts never could exert their proper influence on state decisions.

Confederate President Jefferson Davis

Neely observes that the Confederacy faced issues remarkably similar to those faced by the United States in the War of 1812. There, the New England states opposed the use by the federal government of New England militias to launch an invasion of Canada.

He concludes by exhorting his fellow historians to begin a “series of titles, beginning with ‘Constitutional Problems under Madison’ and stretching through all of our wars until we have accumulated a shelf of volumes that reconsider the role of the Constitution in America’s wars.”

Evaluation: In only 349 pages, this book contains some very meaty legal analysis. Moreover, even though there is a paucity of case law during the relevant time period, the book also contains some very thoughtful constitutional analysis of issues faced by both the Union and the Confederacy. Interestingly, much of the contemporary analysis came from newspaper editorials and impressively trenchant political pamphlets. Neely’s scholarly prose is readable despite the density of his subject matter, and he avoids sounding too lawyerly. I highly recommend this book for anyone with a serious interest in our constitutional history.

Rating: 4/5

Note: The author won the 1992 Pulitzer Prize for his book The Fate of Liberty: Abraham Lincoln and Civil Liberties. This book was awarded the Lincoln Group of New York Award of Achievement for 2011.

Published by The University of North Carolina Press, 2011

March 4, 1861 – Lincoln’s First Inaugural Address

As the clock struck noon on March 4, 1861, President James Buchanan and President-elect Abraham Lincoln left the Willard Hotel in Washington, D.C., in a horse-drawn carriage bound for the Capitol and Lincoln’s first inauguration. Buchanan then took his seat in the front row along with Senator Stephen Douglas and Chief Justice Roger Taney. Lincoln’s friend Senator Edward Baker introduced Lincoln, who spoke prior to being sworn in as President.

Photo from Lincoln’s first inauguration

In his inaugural address, Lincoln focused on shoring up his support in the North without further alienating the South, where he was almost universally hated or feared. He tried to calm the anxieties of Southerners, denying any plan on the part of the Lincoln administration to interfere with the institution of slavery in states where it existed. He also distanced himself from the Republican Party’s rejection of the Fugitive Slave Law, averring that he felt compelled, under the Constitution, to enforce all laws.

Initially, Lincoln’s address had been bellicose. His Secretary of State, William Seward, urged Lincoln to soften its tone. As Doris Kearns Goodwin observes in Team of Rivals, “Seward’s revisions are evident in nearly every paragraph. He qualified some, removed rough edges in others.”

William Seward

For the concluding paragraph, Seward suggested “some words of affection – some of calm and cheerful confidence.” Seward proposed the following paragraph:

I close. We are not we must not be aliens or enemies but fellow countrymen and brethren. Although passion has strained our bonds of affection too hardly they must not, I am sure they will not be broken. The mystic chords which proceeding from so many battle fields and so many patriot graves pass through all the hearts and all the hearths in this broad continent of ours will yet again harmonize in their ancient music when breathed upon by the guardian angel of the nation.”

Lincoln polished it up, and as Goodwin opines, “proceeded to recast and sharpen Seward’s patriotic sentiments into a concise and powerful poetry.” He words were:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

At the end of Lincoln’s address, Chief Justice Roger B. Taney administered the presidential oath of office, swearing in Abraham Lincoln as the sixteenth president of the United States. Lincoln was fifty-two years old.

March 2, 1861 – President Buchanan Signs the Corwin Amendment

On this date in history, President James Buchanan affixed his signature to a proposed amendment to the United States Constitution passed by the 36th Congress. If ratified, the amendment – to be the 13th – would have shielded “domestic institutions of the states” (i.e., slavery) from the constitutional amendment process and from abolition or interference by Congress. Specifically, it read:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Over 200 resolutions dealing with slavery were proposed in the 36th Congress, most having the intent of averting a Civil War. This particular amendment was introduced by Representative Thomas Corwin of Ohio in the House of Representatives and Senator William H. Seward of New York in the Senate. The House approved Corwin’s text on February 28, 1861, and the Senate adopted it with no changes on March 2, 1861. Outgoing President James Buchanan signed it the same day.

Representative Thomas Corwin, 1831-1840 and 1859-1862

Abraham Lincoln, in his first inaugural address, said of the Corwin Amendment:

I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service….holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”

Although we like to pretend this particular 13th Amendment never was passed, and/or never endorsed by Lincoln, in fact both events occurred. History professor Daniel Crofts has argued that Lincoln wished, in his inaugural address, to challenge the key Southern claim that the North was bent on destroying slavery.

Abraham Lincoln delivered his first Inaugural Address on the East Portico of the Capitol

Ohio and Maryland’s legislatures ratified the amendment and Illinois’ state constitutional convention did the same. Had the Civil War not intervened, the proposed 13th Amendment would likely have been ratified by the required three-quarters of the states.