April 3, 1866 – The Supreme Court Decides Ex parte Milligan

Three cases brought to the Supreme Court during the Civil War were designated as “ex parte” because all three were brought on behalf of citizens detained by the Union Army. Ex parte Milligan 71 U.S. 2 (1866), like the others, had a defendant seeking release under the writ of habeas corpus (which requires the government to demonstrate to a federal judge the factual and legal grounds for detention).

Art. I, §9, cl. 2 of the U.S. Constitution provides that “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.” But the language does not indicate which branch of government has the power to suspend the privilege of the writ.

During the Civil War, President Lincoln issued a number of orders putting certain not-fully-loyal civilian areas in the North under military control and imposing military law. In 1864, the Union Army arrested five men in Indiana, including Lambdin Milligan. The men were charged with membership in a secret group plotting to steal weapons and to free Confederate soldiers held as prisoners of war. A military court sentenced Milligan to be hanged, but he appealed for his release under the Constitution’s right of habeas corpus.

In Ex parte Milligan, the Court was tasked with deciding whether Lincoln had followed the Constitution when he authorized martial law.

The decision was not issued until a year after the war ended and Lincoln was dead. But the issue remained important; a unanimous Court held that the President had gone too far. As an article for the American Bar Association reports:

The Court stressed that Indiana was not under attack and that Milligan was not connected with Confederate military service, nor was he a prisoner of war. He was arrested at home, not on a military maneuver. Even more important, the courts in Indiana were open and functioning normally during the war. The government could have charged him with treason and tried him in the courts, where he would have had the right to a jury and the right to a fair trial, under the Constitution.”

Thus, in this landmark decision, the Court ruled that Milligan could not be tried by a military tribunal if, as in this case, there was a civilian court available instead. To find otherwise, the Court opined, would mean that “republican government is a failure, and there is an end of liberty regulated by law.”

Justice David Davis

Justice David Davis (who served as Abraham Lincoln’s campaign manager at the 1860 Republican National Convention and was nominated to the Court by Lincoln), wrote elequently for the majority:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. [emphasis added]”

Applying martial law against a citizen like Milligan, continued Davis, “destroys every guarantee of the constitution,” and cannot coexist with the concept of civil liberty: “the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

Over 150 years after the decision, it is still widely cited by scholars and the Court, especially with respect to treatment of the detention and disposition of alleged terrorists. But the Court has also narrowed its reach.

Justice [Indiana Supreme Court] Steven H. David wrote an excellent review of the subsequent cases that limited Milligan’s holding in “Ex parte Milligan and the Detainees at Guantanamo Bay: A Legacy Lost.” Justice David was appointed chief Defense counsel at Guantanamo Bay, Cuba in 2007. There, he observed, “I entered a constitutional no-man’s land of military tribunals and commissions—a veritable black hole of judicial precedent and construction.”

The status of modern terrorists who belong to organizations like Al Queda that have “declared war” against the United States is unclear. As David points out, “None of today’s detainees [in Guantanamo] are citizens of a nation at war with the United States . . . and many were detained not on the field of battle but in places far removed from active combat or military action.” The American Justice Department has chosen to treat such persons as “enemy combatants,” a category meant to subject them to military rather than civil jurisdiction.

This category may even apply to actual U.S. citizens, such as Jose Padilla, who was arrested in Chicago in 2002 on suspicion of being connected to the September 11, 2001, terrorist attacks. President George W. Bush issued an order designating Padilla as an enemy combatant and ordering him to be detained in military custody.

Congress has also approved measures, such as the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, that attempt to limit the applicability of the writ of habeas corpus.

Justice Anthony Kennedy

In Boumediene et al. v. Bush (553 U.S. 723, 2008) Justice Anthony Kennedy wrote an opinion addressing the question “not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2.”

Without addressing the merits of the case, he concluded:

We hold that petitioners [aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba] may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

Justice Kennedy also commented on the importance of the Judicial Branch balancing the Executive Branch on this question:

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”

David, writing before the time of Trump, but presciently for present times, concluded:

I firmly believe that when historians look back on this period, neither the wealth of our great nation, nor our technological advances, nor our military successes or failures will define our legacy. Our time will be judged instead by whether, in a time of national fear and perceived uncertainty, we followed the rule of law, adhered to the fundamental principles protected by our constitution, and demonstrated to the world that human rights apply to all humans, not just Americans. Did we demonstrate to ourselves that, even in the most difficult times, we practiced what we had been preaching to the world, or did we let fear—and the fear of the rule of law—consume us?”

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Review of “Lincoln and His Admirals” by Craig Symonds

Craig Symonds, Professor Emeritus at the U.S. Naval Academy where he taught naval history and Civil War History for thirty years, and the author of ten previous books, examines Lincoln’s presidency through the lens of the naval side of the Civil War, a perspective often neglected in Civil War scholarship. He accomplishes several goals.

One is to show the importance of naval operations for the Civil War. Another is to provide evidence of Lincoln’s growth as a leader during his four years of presidency. A third is to enlighten readers about “Lincoln’s admirals,” since they are relatively unknown compared to “Lincoln’s generals.”

When Lincoln assumed the presidency, he had no knowledge of navies or navy matters, yet had to oversee the development and deployment of the largest naval force in American history to date. The very week Lincoln took office, he was beset by the crisis facing Fort Sumter – located in the middle of Charleston Harbor – which needed to be either resupplied or surrendered. He had to borrow New York City tugboats to help supplement America’s tiny marine arsenal to resupply the fort. But by the midsummer of 1864, the U.S. Navy had more than six hundred warships in commission. Symonds observes that this scale of naval development would not be eclipsed until the world wars.

Symonds quotes Hannibal Hamlin, Lincoln’s first-term vice president, as saying that “eulogists make the mistake of constructing a Lincoln who was as great the day he left Springfield as when he made his earthly exit four years later.” This does Lincoln a disservice, Symonds claims, by understating the enormous strides he made while in office.

Lincoln was forced to become a student of naval warfare just as he had to become a student of land warfare. He effected a blockade of the South, wrestling not only with its legal technicalities, but also with the logistics of doing so without enough ships. He also had to deal with intermittent international crises involving foreign governments. Some of these governments, intent on the profits that would come from trading with the South, resisted interference at neutral ports. Others wanted contracts honored with the South for such goods as cotton and tobacco that had been executed prior to the outbreak of hostilities.

Assistant Secretary of the Navy Gustavus Fox

Lincoln had to cope with constant internecine conflicts not only among his admirals, and those aspiring to be admirals, but also between “Mars” and “Neptune” in his cabinet (as he referred to Secretary of War Edwin Stanton and Secretary of the Navy Gideon Welles). (Tellingly, Gustavus Fox, Assistant Secretary of the Navy, wrote in a letter, ”I feel that my duties are two-fold: first, to beat our southern friends; second to beat the Army.”)

Gideon Welles, Lincoln’s Secretary of the Navy, was, as Symonds characterizes him, “by turns blunt, challenging, cantankerous, and tiresomely earnest. He was protective of his commander in chief and jealous of the influence exercised on him by others, especially Secretary of State William Henry Seward.” In fact, conflict between Welles and Seward eclipsed that between Neptune and Mars (i.e., Stanton). Seward was constantly “interfering” in naval matters because of his (and Lincoln’s) overriding interest both in keeping Britain and France out of the war, and in avoiding a new war with either of them. Lincoln often played the role of judge between his jousting secretaries, requiring written answers to his “interrogatories” to justify their positions.

Secretary of the Navy Gideon Welles

One source of animosity between not only Welles and Stanton but which also involved Secretary of the Treasury Salmon Chase, was the scramble for captured or abandoned cotton, or “white gold.” Since fortunes could be made from the cotton, not only did Navy, War, and State fight over custody of the cotton, but the three services stole captured cotton from each other.

Another problem was that there was no protocol in the American military for a combined command of army and navy operations. Achieving cooperation was difficult, and fraught with resistance and counter accusations. Yet many big battles in the Civil War depended on joint land and river maneuvers. Lincoln often had to get involved, even directing the movement of ships and the dispatch of supplies. Not until Ulysses S. Grant took over as General-in-Chief of all the armies of the United States did Lincoln find a leader with both the ability and the respect to handle the competing branches of the services.

Ulysses S. Grant

One interesting complication concerned “the contrabands,” as escaped black slaves were called. Union army leaders could not provision or protect all the escapees they were attracting. Many were quietly added to the navy’s ships. The Army thought that having armed ex-slaves about would be threatening to civilians. But blacks serving on ships were virtually invisible. Moreover, white sailors were happy to assign the drudgework of maintaining the vessels to former slaves. Welles insisted the blacks so employed earn pay. [In January 1, 1863, in the Final Emancipation Proclamation, Lincoln declared that “such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.”]

Rear Admiral John A. Dahlgren

Most of the portraits that Symonds paints of the navy leaders are not flattering. Charles Wilkes, for example, “entered the war with a well-earned reputation for cupidity and obstinacy, and lived up to it during the war.” David Dixon Porter was “brash, self-promoting, and not always truthful.” Lincoln came to think of Samuel Francis DuPont as “a nautical George McClellan.” Lincoln’s favorite admiral, John A. Dahlgren, was judged to have gone insane. [In all fairness, it was also thought from time to time that General William T. Sherman had gone insane.] The reluctance of some of the naval officers to fight “compelled [Lincoln] to become involved in the planning and execution of particular campaigns, even directing an amphibious landing on the Virginia coast to capture Norfolk.”

Much of the book chronicles the unrelenting carping and complaining among admirals and aspiring admirals, bemoaning their equipment, expressing jealousy over appointments and assignments, and seeking retribution for various slights. Some even enlisted various political champions to plead their cases personally to Welles or the President.

David Dixon Porter

But Lincoln was fond of the navy and its ships and technology, and on his last full day of life, he took Mary down to the Navy Yard to tour the ironclad Montauk. Afterwards, he told the officers he was going to Ford’s Theater that night, and they should feel free to join him as his guests. As Symonds remarks at the end of his book: “Many of them accepted at once. It promised to be a festive evening.”

This book is a welcome addition to the category of “niche” books on Lincoln. The navy’s role was greater than most people assume, and the way in which its growth parallels and illustrates Lincoln’s growth provides an interesting perspective on this great man, about whom we can never read too much.

Published by Oxford University Press, 2008

Note: Co-Winner of Gettysburg College’s 2009 Lincoln Prize

January 19, 1861 – Ireland Notes the Election of A Black President in the U.S.

On January 19, 1861, the Montpelier Vermont Patriot reported that the Argus, a regional newspaper in Ireland, discussed the implications of “a black Man’s” victory for the United States. “No Presidential election has excited so much party feelings as has the election of Abraham Lincoln, a black gentleman,” the Argus opined.

It is easy to see how they became confused. Lincoln was not well-known outside the country, and the Democrats, led by Stephen A. Douglas, consistently castigated Lincoln as a “Black Republican” whose goal was to incite a civil war, emancipate the slaves, and make blacks the social and political equals of whites. (At Douglas’s first debate with Lincoln, on August 21, 1858, Douglas challenged the audience: “If you desire negro citizenship, if you desire to allow them to come into the State and settle with the white man, if you desire them to vote on an equality with yourselves, and to make them eligible to office, to serve on juries, and to adjudge your rights, then support Mr. Lincoln and the Black Republican party, who are in favor of the citizenship of the negro.”)

Presumably the current newspapers of Drogheda double-checked before publishing on November 5, 2008….

Review of “1864: Lincoln at the Gates of History” by Charles Bracelen Flood

This terrific contribution to Lincolniana manages to convey reverence for Lincoln without falling into the tempting trap of hagiography that so often characterizes books on Lincoln. Furthermore, although it’s a story familiar to many, Flood tells it in a most entertaining way, from a refreshingly objective perspective.

Flood has said in interviews that he believes there are only two years in American history that are absolutely critical, pivotal years: The first was 1776 and the second was 1864. This last full year of Lincoln’s life wrenched the President and the public from one end of the emotional spectrum to the other: for a while it looked like the North had lost the Civil War, as disasters and dead bodies mounted on the battlefields. Then Sherman took Atlanta followed by Savannah, and Sheridan tamed and reclaimed the Shenandoah Valley. Similarly, Lincoln’s prospects for winning a second term went from absolutely zero to overwhelmingly positive. And throughout this entire whip ride, Lincoln was manipulating everything and everybody he could, behind the scenes.

Abraham Lincoln, February, 1864

A little background: the Civil War started just five weeks after Lincoln’s first inauguration on March 4, 1861. By 1864, close to a million Union soldiers faced 700,000 Confederates. Also by that year, some quarter million Union soldiers were already lost from all causes. In addition, more than 100,000 had deserted.

Politics in the North was mainly divided into four camps: the “conservative” Republicans who supported Lincoln’s approach; the “Radicals” who thought Lincoln was too conciliatory toward the South; the “Peace Democrats” who wanted immediate peace negotiations and compromise with the South; and the “War Democrats” who were willing to keep fighting but did not care about the status of the slaves.

1864 was the year of some huge battles, including the Wilderness Campaign and Cold Harbor, in Virginia. The stories Flood tells about these battles are just awe-inspiring, even if you’ve heard them before! In one instance, Lee rode up in front of his troops to spur them on, and it took three men to wrestle him back to safety. Sheridan too, at Cedar Creek, rallied his retreating men when he “soared above the barricade on his massive black horse, landing in an open area. Wheeling [his horse] Rienzi around where his soldiers could see him for a hundred yards in either direction, he bellowed, “‘Men, by God, we’ll whip ‘em yet! We’ll sleep in our old tents tonight!” And they did. In Cold Harbor, one soldier wrote in his diary: “June 3. Cold Harbor. I was killed.” The diary was found on his body. In mid-July, when D.C. was in danger of attack by the Confederates and Grant’s army was far away, some 2,800 wounded solders left their hospital beds to march to Fort Stevens, north of Washington. As Flood reports, “Many limped and most had bandages somewhere on their bodies, but they all carried muskets.”

Philip Sheridan

Lincoln’s desire to get reelected was never far from his mind, and even influenced his war strategy. (It was more than just a “desire” – he felt no one else was capable of being elected who wanted to keep the Union intact.) Benjamin Butler was deemed to be an incompetent general, but Lincoln wanted him kept busy in the field, because it was thought he might head up his own campaign for the presidency. So Butler amassed failure after failure, with yet more lives lost. Grant wanted to get rid of him, but he knew Lincoln wanted him handled with kid gloves. Finally they compromised; Butler was sent off “to await further orders” (which of course never came). (Lincoln first tried to co-opt Butler by sending someone to offer him the vice presidency. Butler laughingly replied that “I would not quit the field to be Vice-President, even with himself as President, unless he will give me…[assurances] that he will die or resign within three months after his inauguration.”)

Benjamin Butler

Salmon Chase, the Secretary of the Treasury, was another potential threat to Lincoln’s reelection. Chase, favored by many Radical Republicans, saw the election results of 1860 (in which he also ran) as a hideous mistake, and hid his thirst to be president from no one. Chase was contemptuous of Lincoln. Although Lincoln’s origins were humble, Lincoln the man was nothing of the kind when it came to his sense of intellectual superiority, and he didn’t hesitate to let others know this. Chase burned with resentment over the presumption of such a bumpkin! As for Lincoln, he wasn’t so fond of Chase either, but thought he would do a good job at Treasury. More importantly, however, for Lincoln, with Chase serving in the Cabinet, it would be too awkward for him to come right out and challenge in the 1864 presidential election the man it was his duty to serve.

Salmon Chase

At the Republican convention in June, Flood gives evidence that Lincoln himself desired, and worked for (surreptitiously), the nomination of Andrew Johnson as his vice-presidential candidate. Johnson, a Democrat from Tennessee, was the only senator from the states that seceded who remained loyal to the Union. Lincoln felt his nomination would have powerful symbolic importance. In one sense his selection would be a concession to the South and evidence of the rewards of staying in the Union. In another, it would be “something of a political offensive into the South to parallel the military advances.” And finally, Lincoln thought that to nominate a Southerner who was a Union loyalist would prove to England and France (in danger of recognizing the Confederacy as a separate country) that America as one country was still viable.

Andrew Johnson

Most people know that during the War, Lincoln suspended habeas corpus. (Habeas corpus, or the Great Writ, is the legal procedure by which prisoners can challenge the legality their detention; it was designed as a protection against the government from holding people indefinitely without showing cause.) But the extent to which his administration had people jailed questionably is not as well known. Not all of the people who landed in prison had engaged in “seditious” behaviors. Sometimes, however, the extra vigilance was justified. The Confederate Secret Service, operating in Canada, came up with a number of plots to destabilize the North. Confederate sympathizers in the North also worked against the government. One notable plan Lincoln discovered in 1864 involved a conspiracy by a secret organization to stage an armed insurrection, taking Ohio, Indiana, Illinois, and Missouri out of the Union in a second secession. This “Northwestern Confederacy” would then hopefully attract membership by Michigan, Wisconsin, Minnesota, Iowa, and Kansas. Then, they would form a partnership with the South.

With all his problems of state, Lincoln had trials on the home front as well. Mary had become more and more unstable since the death of their second son Willie in 1862. She eased her anxiety by having séances conducted in the White House, and by compulsive shopping, once buying 400 pairs of gloves in three months. She also bought several shawls for $650 each and a cashmere for $1,000. Meanwhile Lincoln wore the same ratty, ill-fitting suit every day, and carried out affairs of state in worn carpet slippers. He did not give money to Mary for her shopping; rather, she “appropriated” it from other funds. As an example, in return for splitting half the money with her, she got the Superintendent of the White House grounds to come up with fake receipts for flowers, trees, bushes, and equipment. Soon she expanded her scam into the White House kitchen.

Mary Todd Lincoln

Meanwhile in the South…. In November of 1864, on the day Lincoln was getting reelected, Jefferson Davis was proposing to buy 40,000 slaves from their owners, so they could fight in the army … to help preserve slavery. …

A final note on Lincoln’s last full year: On Christmas Eve, his friend Orville Browning convinced Lincoln to go in on a cotton deal that might have made Lincoln a million dollars. The gray trade in cotton and tobacco had proceeded throughout the war; it was in the interest of both sides to ignore it. Lincoln just had to writes passes for the middlemen to go back and forth to the South unharmed through Union lines. Flood said it was “legal but perhaps an unethical conflict of interest,” and it probably would have been a huge scandal had it gone through. Ironically, when Lee evacuated Richmond three months later, he burned the warehouses that were to provide goods for the deal, so it was never consummated.

Orville Browning

Flood’s Lincoln is not a saint. Rather, he is a real human being who is not only inordinately compassionate and patient, but also a brilliant and savvy manager who compromised his standards when necessary to achieve his goals.

Evaluation: Even if you aren’t a maniacal fan of Lincoln and the Civil War as I am, I can’t imagine not enjoying this book. Flood is as fully readable as Doris Kearns Goodwin, but where Goodwin falls short in objective reporting, Flood excels.

Rating: 4.7/5

Published by Simon & Schuster, 2009

November 6, 1860 – Lincoln Elected as the 16th President of the United States and His Career As a Lawyer Before the Presidency

On this date in history, Lincoln received 180 of 303 electoral votes and about 40 percent of the popular vote in a five-way election. He was the first Republican President.

We know a great deal about Lincoln after he took office. But what about his career prior to the presidency?

In the book An Honest Calling: The Law Practice of Abraham Lincoln by Mark E. Steiner, the author attempts to remedy that omission.

The opening premise of this book is quite interesting. Steiner posits that Lincoln’s legal career has been largely ignored by historians for three reasons. One is that it is difficult for non-lawyers to navigate through the esoteric language characterizing legal practice. More importantly, Steiner suggests that because of “the positive cultural image of Lincoln and the negative cultural image of lawyers in American society,” most writers prefer to ignore or minimize the importance of Lincoln’s law career. Third, “the image of Lincoln the lawyer clashes with the images of Lincoln as frontier hero” – the homespun “rail splitter” whose simplicity metamorphosed into brilliance after he took office.

Lincoln received a license to practice law in all Illinois state courts in September, 1836. In April of 1837 he moved to Springfield, Illinois to practice law with John Todd Stuart. By 1839 he was practicing law on the Illinois Eighth Judicial Circuit, and that December he was admitted to practice law in the U.S. circuit courts.

Biographers who mention Lincoln’s law career have treated it anecdotally, referring only to those cases that might “build Lincoln’s image or inflate his reputation.” There have been documentary problems as well; it has only been since 2000 that a state-of-the-art electronic collection of Lincoln’s legal writings has been available. Thus, “the quality and quantity of literature on Lincoln’s law practice suffers in comparison to the writing on other aspects of his life.”

Steiner attempts to remedy this gap by a detailed review of Lincoln’s legal practice including an overview of what law practice was like for an antebellum lawyer, how Whigs in particular approached the practice of law, a review of sources Lincoln used to learn and interpret the law, and a representative sampling of cases from Lincoln’s practice.

Steiner finds from the evidence that Lincoln was quite a competent lawyer; so much so, that when he began to do appellate work, he often found himself fighting (and even losing!) the battle against the precedents he himself had set in the lower court.

Abraham Lincoln, circa 1846

Lincoln did not pick and choose his cases according to any moral standard whatsoever; “Lincoln was willing to represent any side in a dispute, regardless of the argument that he would have to present.” (Steiner argues that (a) antebellum Whig lawyers valued law and order more than any particular value; and (b) they were paid so badly they could not afford to be choosy in any event.) That included representing slaveholders attempting to establish property rights to African-Americans. The only sort of work Lincoln didn’t like was representing out-of-state clients. These clients didn’t know Lincoln, didn’t defer to his judgment, and operated on a quickened pace and impersonal style that was not compatible with Lincoln’s way of doing things.

To me, the discussion of antebellum law on slavery is the most interesting section of the book. Free states refused to recognize slavery; if you brought a slave into the state for domicile (rather than for purposes of transit), the free state considered the slave to have been manumitted. A free state was under no obligation to uphold laws it deemed repugnant from other states. (Fugitive slaves were a separate matter, because the issue of runaways was governed by a federal statute applicable to all the states. The Dred Scott case concerned yet a third issue, dealing with the right of slaves to sue in federal court.) Lincoln defended a man who claimed his slave was “in transit” even though they had been in a free state for two years. Lincoln lost, and the slave Jane was declared free.

Other chapters deal in depth with cases of Lincoln’s relating to debt, railroad entitlements, slander, estates, and taxation. Whenever possible, Lincoln preferred to settle. When he had to try a case, he had a good record for winning. He was respected for honesty and integrity, but would not refrain from using a technicality to win a case. He was dedicated to apply the rule of law wherever and whenever he could, and that is what he determined to do, both as a lawyer and later as the president.

This book makes some interesting points about chronicling of Lincoln’s life, and about the decisions of historians to include or omit certain aspects of Lincoln’s identity from the record. It describes his law practice very well; it in fact includes many more legal details than I suspect most readers would care to know. On the other hand, its explanation of legal positions taken by the various states on slaves is important enough to merit inclusion in other histories.

Abraham Lincoln, 1858

Does this book help to answer the question “who was Lincoln and what was he really like?” Yes, a bit, in the way that knowing what a person does “at work” helps to provide clues to who he or she is. At the very least, it covers aspects of Lincoln’s character and personality that deserve to be summarized in more general treatments of Lincoln’s life. It doesn’t make for the fascinating reading that most books on Lincoln do, but it does represent a lot of solid research, and information that will be very appealing to a specialized audience.

An Honest Calling: The Law Practice of Abraham Lincoln by Mark E. Steiner published by Northern Illinois University Press, 2006

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

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