In February 1860, Lincoln traveled to New York City and made the last speech of his political career before he was elected President of the United States on November 6, 1861. To the sophisticated audience of 1,500 New Yorkers gathered in the gas-lit, subterranean hall of Cooper Institute, Abraham Lincoln looked like one of the rag-tail immigrant men who daily crowded off the ships down on the Battery and with their few possessions on their backs, went searching for a room in the tenements around Houston Street. The New Yorkers came in their carriages through the snowbound avenues of the great city to Cooper Institute, to judge for themselves whether this Western man was the Republicans' best chance to do in the country what he could not do in Illinois: beat the Democrats' National man, Stephen Douglas.
The audience clapped politely as Cullen Bryant of the New York Evening Post walked with Lincoln onto the stage. After the applause had subsided, Bryant introduced Lincoln.
"Abraham Lincoln is a citizen of the west," Cullen Bryan said.
The audience began to applaud again, but Bryant waved it off and went on:
"Lincoln and his friends are potent allies in the battle we are fighting, for Freedom against Slavery; in behalf of civilization against barbarism; it is a battle for the great west where settlers are now building their cabins. They are a race of men who are not ashamed to till their acres with their own hands. These children of the west form a living bulwark against the advance of slavery, and from them we will recruit the armies of liberty. Mr. Lincoln is one of them and he has rendered good service to the cause. He took the field against Douglas in 1858 and would have won the battle but for unjust laws which allowed a minority of the people to elect a majority of the Legislature. Hear him speak!"
The audience erupted with cheers and applause and Lincoln left Bryant's side and advanced to the middle of the stage and stood behind a writer's desk that was stationed there. Lincoln stood for a moment and scanned the faces of the audience with his deep set black eyes. The audience was mostly well-dressed men, with a scattering of ladies in gowns among them. It was a very different crowd from those that he encountered in the towns of Illinois during his debates with Douglas; but the political attitude of the people gathered before him was the same. They did not want to perform their Constitutional duty of acting as slave-catchers and they did not want to live in political and social relation with the Negros; but neither did they want invasions and insurrections like the Republican radicals did who fawned over their martyr, John Brown. The people wanted change but not revolution; freedom for the Negro but not equality.
Lincoln knew their mind and crafted his speech to align himself with their ideas. As the hall fell into a hush, Lincoln spread his big hands flat on the desk in front of him and began to speak. The policy of the Republicans, Lincoln told his audience, was not something new and untried; it was merely the identical old policy of those who originally framed the government under which the people lived—the policy that slavery was wrong and should not be extended. As evidence for his proposition, Lincoln offered to his audience the voting record of the thirty-nine men who signed the Constitution and later served in the Congress of the United States.
Lincoln pointed to the fact that the original Congress, which executed the Articles of Confederation in 1777, had voted to prohibit slavery in the Old Northwest Territory in 1787; to the Congress of 1804 which organized part of the Louisiana Territory the United States had acquired in 1803; and to the Congress of 1819-1820 which voted to admit Missouri in the Union. Counting up the many times the surviving members of the Constitutional Convention, during their subsequent terms of office in the Congress, had voted against the extension of slavery, Lincoln argued that their votes showed that they believed the Constitution granted to Congress, the power to abolish slavery in the territories.
Without identifying what powers granted Congress by the Constitution the thirty-nine framers believed authorized their votes against slavery, Lincoln raised his hands from the desk and held them palms up as he stepped back a pace and said to his audience:
"If any man sincerely believes that any part of the Constitution forbids the Federal Government to control slavery in the territories, he is right to say so, and to enforce his position by all truthful evidence and fair argument which he can. But he has no right to mislead others, who have less access to history, and less leisure to study it, into the false belief that our fathers who framed the government under which we live were of the same opinion."
Someone among the 1,500 people in the audience that night must have been perplexed by Lincoln's logic. He told the audience that the "thirty-nine" held the opinion—evidenced by the votes some of them cast as members of Congress—that the Constitution did not forbid Congress controlling slavery in the territories, but he did not identify any basis for their supposed opinion; much less offer the audience any basis for their votes.
Our's is a government of delegated powers, not of forbidden powers. If a power of Congress to act is not expressly granted or reasonably implied by the terms of the Constitution the Congress is without power to act. The question was not whether any part of the Constitution forbade Congress from controlling slavery outside the borders of the States; the question was whether any part of it granted Congress the power to control slavery outside the borders of the States.
Abraham Lincoln had spent many years studying the historical facts of the case in the light of the Constitution. Such study shows plainly that the men of the Revolution had built into the Constitution definite procedures to control the spread of slavery in the United States. Motivated by self-interest, not moral sentiment, the politicians repeatedly acquired territory pregnant with slavery and ignored the powers available to them under the Constitution to abort it. Only after they had satisfied the thirst for territory, did the politicians begin to exercise the powers granted to Congress and stop admitting Slave States in the Union. The battle for freedom against slavery was caused by the failure of the Free State politicians to use the powers of Congress in defense of freedom as much as by the failure of the Slave State politicians to make wage labor the basis of their economic systems.
Among the legitimate powers the men of the Revolution expressly made available to the politicians of Lincoln's time was the power to refuse treaties, the power of the purse and the power to admit new states in the Union. In 1777, delegations representing each of the thirteen newly recognized States assembled at Philadelphia and unanimously agreed to the creation of a Union of States—divided into Free States and Slave States. At the time of the creation of the Union Virginia held title, by virtue of its Royal charter, to all the lands between its northwestern border and the Mississippi. Five years later, in 1783, on condition that new States be formed from it, the Legislature of Virginia authorized its delegation to Congress to convey to the United States the territory within the limits of its charter that was northwest of the Ohio River.
One year later, in 1784, Thomas Jefferson, the leader of Virginia's delegation to the Congress, executed the deed of cession which was accepted by the Congress. On the same day the Congress accepted the deed, a committee chaired by Jefferson submitted to Congress a plan of organization for the territory which included a provision prohibiting slavery. The States voted on the question of adopting the plan of organization with the prohibition against slavery, but the prohibition failed to receive affirmative votes from at least nine States, as required by the Articles of Confederation, and it was defeated. By an affirmative vote of two thirds of the States, the United States in Congress assembled adopted the remaining provisions of the plan of organization.
Three years later, in 1787, after the Constitutional Convention had drafted the Constitution and the "thirty-nine" had signed it, but before the people had ratified it, two thirds of the United States in Congress assembled under the Articles of Confederation did vote to adopt a regulation for the territory, which ordained that "there shall be neither slavery nor involuntary servitude in the said Territory." This act of the United States in the Congress assembled under the Articles is the evidence Lincoln offered to the New Yorkers at Cooper Institute, as the basis for some of the "thirty-nine" voting against slavery some of the time they held seats in the Congress of the Constitution. Clearly, the antislavery votes the "thirty-nine" cast some during the time they were seated in the Congress of the Constitution must have been based on powers granted the Congress under the Constitution—not on the sovereign powers of the States assembled in Congress under the Articles of Confederation.
After the Constitution was ratified by the people of at least nine States, in 1789, the composition of the Congress was no longer simply delegations sent by the States themselves. The Constitution had added to the design, representatives sent by the whole people of the United States. Under either design of Congress the first opportunity to exercise Constitutional power to prevent the spread of slavery in the United States presented itself when the Congress made the initial decision to accept or reject the opportunity of acquiring territory.
The first time the reconstituted Congress enjoyed the opportunity was in 1790, when it accepted additional cessions of territory from Virginia, North Carolina and Georgia which were organized eventually into the states of Kentucky, Tennessee and Alabama. The States ceded these additional territories upon the condition, which the Congress accepted, that Congress make no law prohibiting slavery in them. As to all the territory ceded by Virginia, therefore, whether north or south of the Ohio River, as well as the territories ceded by North Carolina and Georgia to the United States, the new Congress chose not to exercise any of the express powers available under the Constitution against the spread of slavery.
The Congress of the Constitution had no reason to exercise any of its powers under the Constitution against slavery north of the Ohio River because the territory came under its control after the Congress of the Articles of Confederation had already prohibited slavery there; slavery was prohibited there, not because of the exercise of any powers granted to Congress under the Constitution but because the States in their sovereign capacities (through the delegations they sent to the original Congress) had expressly consented to the restriction which the Congress under the Constitution merely enforced. As to the territories south of the Ohio River, ceded by Virginia, North Carolina and Georgia after 1789, the Congress of the Constitution chose to accept title to the land subject to the States' express condition that slavery shall exist there. If the Free State politicians had wished to prevent the spread of slavery in the United States at that time, they could have refused to provide the requisite number of votes required by the grant of the treaty-making power under which Congress based its acceptance of the cession. In the face of a veto by the Free States, it is true that the States to which the territory belonged might attempt to annex it but at least the people would have been early warned, the battle for freedom against slavery had begun.
What Lincoln did not tell the Cooper Institute audience was that, in their redesign of the structure of the Congress, the "thirty-nine" provided the procedural means whereby both the House of Representatives and the Senate could exercise power jointly or separately, in the process of acquiring new territories. The first opportunity to exercise power to prevent the spread of slavery in the United States belonged to the Senate when the President appealed to Congress to ratify a treaty. Under Article II, section 2 of the Constitution, the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The representatives of the whole people in the House of Representatives could have resisted the Senate's decision by exercising the powers granted by Article I, Section 7. It specifies that, "All bills for raising revenue shall originate in the House of Representatives;" and under Article I, Section 8, the House shares jointly with the Senate, the "power to. . . pay the debts and provide for. . . the general welfare of the United States."
A second opportunity to restrict the spread of slavery was presented the Congress when the United States purchased the Louisiana Territory from France. The Louisiana Territory stretched from the mouth of the Mississippi northwestward across the great plains to the Continental Divide and the Canadian border. The paper title to this domain was in possession of the Bourbon French and Spanish kings from 1542 when Hernando de Soto discovered the Mississippi to 1800 when Napoleon's France took possession under a secret treaty with Spain. In 1803, Napoleon offered to sell France's title to the territory to the United States in exchange for $15 million. President Thomas Jefferson proposed to the Senate of the United States that a treaty be made with France to execute the transfer of ownership. The Senate concurred and the treaty was made.
By 1803, there were 17 States in the Union: 8 were Slave States and 9 were Free States. If the Free States had been truly motivated by the moral sentiment, in 1803, which Lincoln and the Republicans so fiercely felt in 1860, they could easily have prevented American slavery extending beyond the Mississippi; they merely had to instruct their delegates to the Senate of the United States to not concur with the President's proposed treaty with France, or the representatives of the whole people in the House could easily have refused to authorize the expenditure of $15 million to cover the purchase of the territory; and the battle for freedom against slavery would have begun.
In the debate that would have followed from Congress's acts of moral resistance to slavery, either the people through their Representatives or the States through their Senators could have forced the inclusion of an amendment in the treaties of purchase which abolished slavery in the territories. But there was no debate. The delegates from the Free States in the Senate concurred with President Jefferson's proposal without a whimper. The Representatives in the House did not hesitate to approve payment to France of $15 millon and, nine years later, the Congress admitted Louisiana in the Union as the eighteenth State. Contrary to Lincoln's novel interpretation of the historical facts, the policy of the men of the Revolution and their sons toward the extension of slavery was "don't care," if "do care" meant they must hesitate in the aggrandizement of territory.
The third opportunity for the Congress to stop the spread of slavery came in 1812, when the people of Louisiana Territory, now reduced to its proposed state borders, petitioned Congress for admission as a State in the Union. Congress admitted Louisiana as a Slave State without any resistance from the "thirty-nine." Indeed, between 1812 and 1820, the Congress happily admitted in the Union six new States: Hernando de Soto. Only when the people of Missouri Territory petitioned for admission of their territory as a State in the Union, did a serious debate erupt in Congress over the question of controlling slavery.
Instead of exercising its power under Article IV, Section 3, to reject Missouri's request to be admitted in the Union, the Congress made Missouri a State. It was in the long drawn out debate over the admission of Missouri in the Union that the politicians first exercised a power granted them by the Constitution against slavery. In Article IV, Section 3, in addition to the power to admit new states, the Constitution granted Congress the "power to. . . make all needful Rules and Regulations respecting the Territory. . . belonging to the United States." Pursuant to this grant of power, the Congress passed an act, in 1820, which expressly prohibited the existence of slavery in the part of the Louisiana Territory which fell above 36 degrees, 30 minutes of longitude. While the prohibition was in force, the Congress admitted Michigan as a free state, but it also admitted the Slave States of Arkansas, Florida and the Republic of Texas.
The first and last time the Congress exercised the power to veto a treaty involving slave territory was in 1843 when the Senate refused under Article II, Section 2, to provide the two thirds vote required to ratify a treaty President Tyler had executed, to bring the Republic of Texas in the Union as a State; even then, however, the Congress could not resist the opportunity to grab Texas. In 1845, it passed a joint resolution under Article IV, Section 3 which approved by majority vote, the admission of Texas in the Union.
Only when the votes of Congress resulted in the possession of the entire North American continent lying between the Rio Grande and the longitude of the Great Lakes, did the Free State politicians finally begin to use the force of their numbers to stop the spread of slavery in the United States. To avoid splitting California, the Mexican War trophy, into two States at the 36/30 longitude, the Congress, under Article IV, Section 3, repealed the so-called Missouri Compromise, in 1850; and, in 1858, the thirty-fourth Congress rejected the petition of Kansas for admission as a Slave State in the Union. The spread of slavery in the United States stopped the moment the Free State politicians wanted it to stop: when they were sure they had locked into the territory of the United States, the last block of available real estate.
Lincoln's recount of the votes of the "thirty-nine," was nothing but a sophistical contrivance he designed; a strawman he built up to tear down. The claim Lincoln made before his New York audience, that the Republicans were not revolutionary but conservative, that their policy towards slavery was the identical old policy of the men of the Revolution was a device to mollify the crucial swing voters in the coming presidential election and distract them from realizing his real agenda. Lincoln knew that by 1860, neither Douglas's doctrine of Popular Sovereignty nor the Supreme Court's decision in Dred Scott mattered any more. The battle to restrict slavery was won in 1850, the moment the Congress refused to accept any part of California as a Slave State in the Union. What Lincoln wanted to hide from his audience was the fact that the war of freedom against slavery would begin the moment a Republican was swore in as President of the United States.
With his black woolen suit soaked in sweat, Lincoln abruptly stopped speaking. He pulled his black coarse hair back across his forehead and folded his arms. His lips were tightly pressed together and he gazed at the audience for a moment with half-hooded eyes. An arrogant confidence radiated from his face.
"But enough of that!", he said; letting his arms fall to his sides.
"Let me speak now to the Southerners," he said, and he walked forward toward the footlights slowly nodding his head; making eye contact with a person in the audience here and there.
"You Southerners will say the Supreme Court has decided the disputed constitutional question in your favor - - in a sort of way." Lincoln paused, letting the silence fill the hall and then he continued in a strong, clear voice.
"The Court has said, it is your constitutional right to take slaves to the territories and hold them there as property; but the decision was made by a bare majority of the judges, and they not quite agreeing with one another in the reasons for making it."
Lincoln paused again, holding up a hand to quell the muttering of a few in the audience.
"When this obvious mistake of the judges shall be brought to their notice, is it not reasonable to expect that they will change their minds?"
Cries of "Yes, Yes" came from the aroused crowd.
"But in that supposed event, you say, you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of destroying it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, `Stand and deliver, or I shall kill you, and then you will be a murderer.' The threat of death to me, to extort my money, and the threat of destruction to the Union, to extort my vote, can scarcely be distinguished in principle."
It was Lincoln who was being cool. No one was holding a pistol to Lincoln's ear, demanding any property of his. His argument at Cooper Institute was based on the proposition that the Southerners were demanding that the people of the Free States respect a right, which they thought the Supreme Court had given them with its decision in Dred Scott; the right to take persons held involuntary for their labor into the territories. But Lincoln knew the Supreme Court had decided no such thing. Chief Justice Taney with seven concurring associate justices held, in Dred Scott, that under the "make all needful Rules and Regulations respecting the Territory" clause in Article IV, Section 3, the Congress was not granted the power to prohibit citizens of the State Slaves from bringing slaves into the new territories of the United States. However silly Chief Justice Taney's decision is, he and his colleagues, in Dred Scott, had no power under the Constitution to decide the question whether the territorial legislature must enforce the civil law of the Slave States which recognized a right of property in man.
Lincoln was the one holding the pistol: he was pointing it at the people of the Slave States and demanding that they make the Africans free. Lincoln's words cannot be misunderstood. He was flaunting in the faces of the Southerners, the power the sectional Republican party would possess when its candidate became President; the power to organize the administration of the Federal government for a war against having slavery in the Union. The Southern politicians saw through the Republican's charade; they felt their people's helplessness. The Africans had a status and an intrinsic worth upon which the social stability and prosperity of the Slave States depended. How recreant would the people be, in preserving their own liberties and institutions, if they submitted their political safety and prosperity to a handful of men bent on destroying them?
Back in Illinois, speaking to the people in the northern and central counties when he was debating Douglas, Lincoln revealed his true feelings: To the white immigrant wage laborers of Chicago, he said:
"My friends, let us discard all this quibbling about this man and the other man, this race and that race and the other race being inferior. Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal."
The message was plain and simple; but out on the prairie, just 100 miles west of Chicago, speaking to the farmers standing on their buckboards in the courthouse square at Ottawa, he put his point of view a bit differently.
"I have no purpose to introduce political and social equality between the white and black races. There is a physical difference between the two which, in my judgment, will probably forever forbid their living together upon the footing of equality; but notwithstanding all this, there is no reason in the world why the Negro is not entitled to all the natural rights enumerated in the Declaration of Independence—the right to life, liberty and the pursuit of happiness."
Further down south at Alton across from St. Louis on the Mississippi, Lincoln's words expressed the core of his moral sentiments. Slavery is nothing more than the divine right of kings, He said.
"It is the same spirit which says, `You toil and work and earn bread and I'll eat it. No matter if it comes from a king or a race of men as an apology for enslaving another race, it is the same tyrannical principle."
But when he spoke to the people way down south at the confluence of the Mississippi and Ohio Rivers where Illinois is wedged between Missouri and Kentucky, he made the limits of his position clear.
"Judge Douglas told the people up North that he would trot me down here to Egypt." he said. "Why, I was raised just a little east of here. I am part of this people. Now, how little do I look like being carried away trembling? . . . an elderly gentleman called upon me to know whether I was really in favor of producing a perfect equality between Negros and white people. I will say I am not. . . and I am in favor of having the superior position assigned to the white race, but because the white man is to have the superior position I do not perceive the Negro should be denied everything."
In Lincoln's mind, the Africans might be denied state citizenship, the right to vote, the right to be a juror, the right to marry, the right to choose where to reside, the right to travel, the right to assemble, the right to protest; yet it was time to give them the right to be a wage laborer. Winding up his speech to the New Yorkers, Lincoln could not say it, however. He had to keep the Northern voters who would read his speech in the newspapers, believing that, despite their party platform proclaiming slavery a great moral wrong, the Republicans intended to enforce the status quo between blacks and whites everywhere it existed.
Lincoln closed his speech on this point:
"We must not be scared from our duty by false accusations, nor frightened from it by threats of destruction to the government or to ourselves. Let us have faith that right makes might, and in that faith let us to the end dare to do our duty as we understand it."
If the Republicans had been better angels than the Democrats, their political objective would have been to promote the Africans' dispersal throughout the territories of the United States; thereby hastening their eventual integration into American society. The Republicans claimed their objective was to prevent the extension of slavery, but the Southerners could easily see that the Republicans meant to prevent the dispersion of Africans over the whole of America. Instead of arguing that Chief Justice Taney erred in Dred Scott because he misinterpreted the scope of Congress's power to restrict Africans to the existing Slave States, Lincoln and his party should have argued Taney erred because he misinterpreted Congress's power to disperse Africans throughout the land. But Lincoln agreed with Stephen Douglas—"a thousand times agreed," as he put it—that, "the thought of the mixing of blood by the white and black races" was especially horrifying; the best thing, Lincoln thought, was "to keep them apart where they were not already together." A hundred and fifty years later, the thinking of Lincoln's Age infects the Nation still.
When his speech ended, the New Yorkers leaped to their feet and clapped and cheered, throwing hats in the air as Lincoln was escorted from the stage and disappeared with his entourage into the wind-driven winter streets. In the morning when he arose from his sleep at the Astor House, Lincoln found his speech reprinted on the front pages of Cullen Bryant's New York Evening Post, Horace Greeley's Tribune, the New York World and the New York Times. The speech was reprinted in newspapers all over the United States. Lincoln was a National political star. He was 51 years old and in eight months time he would be the President of the United States.
|Joe Ryan Original Works
|About the author:
Joe Ryan is a Los Angeles trial lawyer who has traveled the route of the Army of Northern Virginia, from Richmond to Gettysburg, several times.
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