What Happened in March 1861? ©
(Buchanan and Lincoln Leaving the White House Under
(The Carriage Ride Down Pennsylvania Avenue With Cavalry)
The Half-Built Capital Dome on Lincoln’s Inauguration
(Liberty Was on the Ground Waiting to be Lifted)
The Bible Lincoln Put His Hand On, Swearing
to “preserve, protect, and defend the Constitution."
(Nothing About Interpreting It.)
President Abraham Lincoln
Supreme Court Chief Justice Taney
Looked Chief Justice Taney in the Eyes And He Swore.
Makes His Inaugural Speech
Indeed it was a momentous day, March 4, 1861: Abraham Lincoln, the slippery-tongued, harsh-faced country lawyer from Springfield Illinois, stood on the wooden platform before the construction site that was the Capital
building and read from a speech that he had written months before.
The day and the speech marked the culmination of ten years
of acrimonious American politics that resulted in secession: because of him
seven States had now seceded from the Union—had withdrawn their allegiance to
the Union formed by the Constitution—and the question of the day was, would President
Lincoln make peace with them or wage war?
The Chicago Platform
Lincoln began his address by reiterating the political
position of his party: on the issue of slavery in the United States, he said: “I have no purpose, directly or indirectly, to interfere with the
institution of slavery in the States where it exists. I have no lawful right to
do so, and I have no inclination to do so." Then, as emphasis for the point, he
quoted the political platform of the
Republican Party: “Resolved, That
the. . . right of each State to order and control its own domestic institutions
according to its own judgment exclusively, is essential to that balance of
power on which the perfection and endurance of our political [connection]
depend." And yet again he repeated, “the security of no section is in anyway
endangered by [me]." But of course it was.
reasonably intelligent persons of the time, whether they lived north or south of
the Mason-Dixon Line, understood that Lincoln, as President, meant to do
exactly what he said he would do: He would leave the institution of slavery
in the Slave States alone. But leaving it alone as Lincoln envisioned,
meant leaving the Africans where they were, bottled up with the whites of the
South; rather than this meaning the South would be secure in its pursuit of economic
and social posterity, it was understood by all that it ultimately meant the
South’s utter ruin. For the result of Lincoln’s policy would be that the
productivity of the soil would inevitably wear out and, in turn, as the
plantation system of agriculture became unprofitable, the whites would shed
their economic responsibility for the Africans—and a struggle for political and
social rights would ensue. Which, in time, would lead to race warfare.
This was an intolerable prospect, in 1861, for the white
people of the South to accept. And this was the underlying human feeling
that drove the rhetoric of the politicians that moved the southern people to
adopt the policy of secession, severing their connection to the political
association known as the Union.
The Free States’ Breach of Constitutional Duty Brushed Over
Lincoln dealt with the undeniable fact that the Free States had refused to
perform their constitutional duty to return fugitive slaves to their owners.
Quoting the constitution’s Fugitive Slave Clause, Lincoln said: “There is some
difference of opinion whether this clause should be enforced by national or by
state authority; but surely that difference is not a very material one. If the
slave is to be surrendered, it can be but little consequence to her, or to
others, by which authority it is done."
And, later in his address, he said this: “The fugitive slave
clause [is] as well enforced, perhaps, as any law can be in a community where
the moral sense of the people imperfectly supports the law itself."
Not a very strong endorsement of the rendition of fugitive
slaves to their owners, and it was weakened even further by Lincoln saying
next, “In any law upon this subject, ought not all the safeguards of liberty be
introduced, so that a free person might not be surrendered as a slave?"
And then cryptically, menacingly, he added: “Might it not be
well, at the same time, to provide by law for the enforcement of that clause of
the Constitution which guaranties that `the citizens of each State shall be
entitled to all privileges and immunities of citizens in the several States’?" Here
Lincoln is brilliant. What this clause had to do with African Negro slaves, Lincoln’s audience could only guess, but it revealed Lincoln’s mind-set, his futuristic
thinking that, based on the simple fact of residency in a state, one day
Africans might become citizens of the United States. Here was the embryonic
thought of a new social contract between the races: Citizens!
Nature of the Constitution
President Lincoln’s cavalier attitude toward the Free
States’ patent breach of constitutional duty, regarding rendition of fugitive
slaves, was designed to slip past the lawyer’s argument that provided, in the
arena of the courtroom at least, a legitimate excuse for secession. The
founders of the constitution, in the Philadelphia Convention of 1787, had
discussed this legal basis for disunion frankly. According to his notes of the
debates in the convention, James Madison gave his opinion that as far as the
articles of the Union were to be considered a treaty only, among the
governments of the independent states, the doctrine might be set up that a
breach of any one article, by any of the parties, absolved the other parties
from the whole obligation.
Mr. Patterson of New Jersey responded to Madison with this:
“It cannot be denied that all the States stand on the footing of equal sovereignty.
All therefore must concur before any can be bound. No alteration shall be made
without unanimous consent. This is the nature of all treaties. What is
unanimously done, must be unanimously undone." And Mr. Wilson of Pennsylvania chimed in with the thought that a donor cannot retake his gift without the
consent of the donee.
The Framers in
Debate Over The Terms of the Constitution
To all of this, James Madison—the acknowledged
“master-builder" of the Constitution—replied: “It has been alleged by Mr.
Patterson that the Confederation having been formed by unanimous consent, could
be dissolved by unanimous consent only. Does this doctrine result from the
nature of compacts? Does it arise from any particular stipulation in the Articles
of Confederation? If we consider the federal union as analogous to the
fundamental compact by which individuals compose one society, it can not be
said that no dissolution of the compact can be affected without unanimous
consent. A breach of the fundamental principles of the compact by a part of
the society would certainly absolve the other part from their obligations to it.
If the breach of any article by any of the parties, does not set
the others at liberty, it is because, the contrary is implied in the
compact itself, and particularly by that law of it, which gives the indefinite
authority to the majority to bind the whole in all cases. This latter
circumstance shows that we are not to consider the federal Union as analogous
to the social compact of individuals: for if it were so, a Majority would have
a right to bind the rest, and even to form a new constitution for the whole."
And Madison, standing by Washington’s side, went on: “If we
consider the federal union as analogous not to the social compact among
individual men, but to the conventions, among individual states, what is the
doctrine resulting? Clearly, according to the expositors of the law of
nations, that a breach of any one article, by any one party, leaves
all the other parties at liberty to consider the whole convention as dissolved,
unless they choose rather to compel the delinquent party to repair the breach."
And on this basis, the Philadelphia Convention treated the Articles of
Confederation, which expressly claimed for itself perpetuity, dissolved;
some States having more than once breached their duties under it. (James
Madison, Notes of Debates at the Federal Convention, at p.141 et seq.)
And so too, the lawyer’s argument goes, in 1861, was the Union under the
Constitution legally dissolved.
Lincoln Refuses to Recognize Secession as a Right Under the Constitution
“I hold," he said, “that in contemplation of universal
law (he means the law of self-preservation), and of the
Constitution, the Union of these States, is perpetual. Perpetuity is implied,
if not expressed, in the fundamental law of all national governments. No
government ever had a provision in its organic law for its own termination. If
the Union be but an association of States in the nature of contract merely, can
it, as a contract be peaceably unmade, by less than all the parties who
made it? (Madison said, “yes." But Lincoln says, “no.")
“One party (the Free States) to a contract may violate
it—break it, so to speak," Lincoln then said; “but does it not require all (the
breaching parties included) to lawfully rescind it?"
Here Lincoln was ignoring the plain fact that, by Madison’s theory, the men of the Constitutional Convention recognized the right of the
people, in convention assembled, to rescind their allegiance to the Union framed by the Articles of Confederation. Unless, therefore, there was some term
planted in the Constitution which canceled the application of Madison’s theory,
the people of 1861, like the people of 1789, reasonably might invoke it as the lawful
basis of secession, at least from the abstract viewpoints of the law of
contracts and the law of nations.
A and B enter into a contract whereby A promises B that if B
will stick with A, A will honor the stipulations of their agreement. According
to Lincoln’s logic, when A thereafter refuses to honor one of the stipulations,
A has the right to force B to continue to perform the terms of
the agreement. This outcome turns the law on its head. The law
holds that it is B, not A, who possesses the right—in the face of A’s breach—to
chose his remedy; he may treat the contract as materially breached and
rescind it, or he may continue to perform his side of the agreement and seek
damages from A. Obviously, in the context of fugitive slaves, B knows suing for
damages in court will get him nowhere: Where is he to sue? Who is he to sue? So
he reasonably decides to treat A’s breach of duty as his legal justification
for rescinding the contract.
Setting aside, for the moment, Lincoln’s reliance on the
prime rule of nature to hold the South to the Union, in his address, he pointed
to no specific language in the Constitution from which the right of the Free States to coerce the Slaves States might be expressed.
Lincoln Announces His Arbitrary Law
“No State, upon its own mere motion," he said, “can
lawfully get out of the Union—that resolves and ordinances to that effect are
legally void. I therefore consider that the Union is unbroken; and I shall take
care that the laws of the Union be faithfully executed in all the States. I
deem this a simple duty on my part, and I shall perform it, so far as
practicable, unless my rightful masters, the American people, shall withhold
the requisite means, or, in some authorative manner, direct the contrary."
So, to the Southern people, Lincoln’s position now was
clear: He would wage war against the South if the people of the Free States volunteered their lives in the endeavor. But would they do this? Not that
day, for sure, but as events evolved, would they in the future?
John Whittier, from New England, a popular poet of the
times, expressed the prevailing mood of the Northern people on Lincoln’s inauguration day.
“The firmament breaks up. In black
eclipse, light after light goes out.
One evil star (South Carolina), luridly
glaring through the smoke of war, drags others down.
Let us not weakly weep, nor rashly
threaten. Give us grave to keep our faith and patience.
Wherefore should we
leap into fratricidal fight? What fear we? Safe on freedom’s vantage-ground.
Our feet are planted: let us there
remain, in unrevengeful clam, the sad spectators of a suicide!
They break the links of Union; shall we light the fires of hell to weld anew the chain on that red anvil where each
blow is pain?
We draw now a freer breath, as from our
shoulders falls a load of death. Why take up the accursed thing again?
forgive, but urge them back no more. Let us press, instead, the golden cluster
on our brave old flag in closer union, and, if numbering less, brighter shall
shine the stars which still remain."
(written January 16, 1861)
Is The Law
He does this by beginning with an oblique reference to the
Supreme Court’s ruling in In Re Dred Scott, where a majority of the
justices had held that the Federal Government had no right to prevent
slaveholders from bringing slaves into the territories of the United States.
“I do not forget the position assumed by some," he said,
that constitutional questions are to be decided by the Supreme Court; nor do I
deny that such decisions must be binding in any case, upon the parties to a
suit, as to the object of that suit. . . At the same time the candid citizen
must confess that if the policy of the government, upon vital questions,
affecting the whole people, is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made, in ordinary litigation between
parties, in personal actions, the people will have ceased to be their own
What Lincoln is saying here, is that he recognized the
ruling in Dred Scott, barred Dred Scott from gaining his personal
freedom as a slave, but he would not recognize the decision as barring him
from executing his policy of preventing Dred Scott’s master from carrying him
into the territories. The implication of this is that the President may act
without regard to Supreme Court precedents, that he may decide for himself
which precedents to honor and which to ignore.
That this idea has been happily received by President
Lincoln’s modern successors and pushed to the extreme, is evidenced by the fact
that since President Richard Nixon’s time, presidents have been refusing to
execute sections of laws passed by Congress on the ground their oath of office
gives them the inherent power to decide for themselves whether the law
is constitutional or not. See, for example, the bizarre memorandum written by
an attorney in the U.S. Department of Justice, in 1994, “for the honorable
Abner J. Mikva counsel to the President." The concept that a president may
refuse to execute a law he professes to believe unconstitutional is hung there
on the fact that President Wilson’s firing of an obscure postmaster was
vindicated when the Supreme Court found unconstitutional the congressional act
requiring him to first gain the consent of the Senate. Yet, in the nature of the
case, all that happened is that the aggrieved party—the postmaster—sued the United States seeking a finding that the congressional act was constitutional and he lost.
Had the postmaster prevailed—the Supreme Court finding the act
constitutional—the Court would have merely issued a writ of mandamus, ordering
the President to reinstate the postmaster.
The real test of Lincoln’s position on the power of
the presidency would have arisen when, despite the Supreme Court’s order,
President Wilson still refused to execute the law. Then what might have
happened? Nothing, unless the House of Representatives sought to impeach him;
and, then, under Lincoln’s rule, the President might order the military he
commands to drive the senators, charged by the constitution with deciding the
issue, from the Senate Chamber—like Napoleon, as First Consul, drove the French
Assembly from the legislative chamber at Saint Cloud, the tenth of November 1799.
Impossible!, you say? What is to prevent it, but the attitude of
the military mind at the time? (In 1940, the President, merely by pronouncing
an “order," caused the military machine under his control to imprison several
hundred thousand United States citizens in concentration camps in the desert.
The generals saluted, and the Supreme Court turned a blind eye to it. Most
recently, in several cases, the Supreme Court, with bare pluralities on single
issues, has struggled with the de facto power of the President to detain United States citizens indefinitely in military prisons, and lost. See, for example, Hamdi
v. Rumsfield (2004) 542 U.S. 507.)
It took President Lincoln only two months to practice what
he preached on his inauguration day. The Constitution reads clearly, in Article
I, Section 9, “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." Ignoring the fact that the power to suspend the writ is expressly
given to Congress alone, President Lincoln had ordered General Scott to throw
in prison any person living in Baltimore that he felt might give the “enemy"
aid and comfort. Merryman was such a person. When his lawyers petitioned Chief
Justice Taney to issue the writ of habeas corpus, in effect ordering the
government to bring Merryman before the Court for a hearing, Taney issued the writ.
Lincoln ignored it and when the Congress finally came into session, on July 4, 1861, Lincoln was not impeached and Merryman remained in prison, without benefit
of any court hearing..
As Chief Justice Taney put the situation: “I have exercised
all the power which the constitution and laws confer upon me, but that power
has been resisted by a force too strong for me to overcome. I shall order [my
opinion] be transmitted to the president of the United States. It will then
remain for that high officer, in fulfillment of his constitutional obligation
`to take care that the laws be faithfully executed,’ to determine what measures
he will take to cause the civil process of the United States Supreme Court to be
respected and enforced." (See, Ex Parte Merriman 17 F. Cas. 144 (C.C.D.
Md. 1861) at p. 153, quoting U.S. Const. art II, § 3.)
Lincoln ignored Chief Justice Taney’s opinion when it was
delivered. As far as he was concerned, despite the fact the power to suspend
the writ is found only within the Article of the Constitution empowering the
Congress, he unilaterally decided the executive branch of government possessed
concurrent and independent authority to suspend it. The only reason he gave for
his professed belief was necessity.
On July 4, 1861, in his written address that he sent to the
Congress, he said this: “The whole of the laws were being resisted (Not in Baltimore). . . Must they be allowed to fail of execution so that this single law, made
in such extreme tenderness of the citizen’s liberty, not be violated? To state
the question more directly, are all the laws, but one, to go unexecuted, and
government itself go to pieces (hardly this was the case in Baltimore),
lest that one be violated? Even in such a case, would not the [president’s]
official oath be broken, if. . . disregarding the single law, would tend to
preserve the government?" (In other words, security of government trumps a
citizen’s personal liberty. So it has been ever since with presidents.
Lincoln’s mouthpiece, Edward Bates, acting in the capacity of Attorney General, supported Lincoln’s position with a frankly incoherent written opinion. In it, Bates asserted this:
“I am clearly of the opinion that, in a time like the present, when the very
existence of the nation is assailed, by a great and dangerous insurrection, the
President has the lawful discretionary power to arrest and hold in custody
persons against whom there is a suspicion of complicity. And I think this
position can be maintained by a very plain argument. The Constitution requires
the President to take an oath that he `will faithfully execute the office of
the President and will, to the best of [his] ability, preserve, protect, and
defend the Constitution.’ The duties of the office comprehend all the executive
power of the nation. And this constitutes him, in a peculiar manner, and
above all other officers, the guardian of the Constitution―its preserver,
protector, and defender. It is plainly impossible for him to perform
this duty without putting down all unlawful combinations to resist the Federal
Government. . . He is, therefore, necessarily thrown upon his discretion, as to
the manner in which he will use his means to meet the varying exigencies as
they rise. If the insurgents employ spies to gather information, to forward
rebellion, he may find it prudent to arrest them and imprison them." (10 Op.
Att’y Gen. 74 (1861).)
Of course, the constitutional issue was not whether the
president, in the exercise of discretion in wartime, could arrest and imprison
citizens; the issue was whether he could do this without producing the
imprisoned person in court when a writ of habeas corpus—the ancient privilege
of which not having been suspended by Congress—was issued by the Chief Justice
of the United States.
Lincoln Closes His Address With The Threat of War
Having made himself plain, as to his intent to use the
Federal Government to implement the political policies of his party, and to act
as the sole arbiter of his actions, Lincoln forewarned the country where he was
“In your hands, my dissatisfied countrymen," he said,
and not in mine, is the momentous issue of civil war. The government
will not assail you. You can have no conflict, without being yourselves
the aggressors. You have no oath registered in Heaven to destroy the government,
while I have the most solemn one to “preserve, protect, and defend" it.
You can withhold the assault upon it; I can not shrink
from the defense of it. With you and not with me, is the
solemn question of, `Shall it be peace, or a sword?’" (italics Lincoln’s own;
the last sentence Seward edited out of the draft Lincoln brought to Washington;
see, The Collected Works of Abraham Lincoln, Vol. IV, pp. 261-271)
had read Madison’s notes
All reasonable persons listening to President Lincoln speak,
or reading his written words in the newspapers, could not help but understand
war between the states was now inevitable. The only question that remained was,
who, by the exercise of violence, would be perceived as having started
Though time would show President Lincoln acting like a
tyrant, in the manner of imposing war on the people of the southern states, as
the Federal Government’s response to peaceable secession, it must be admitted
that he exercised lawful power.
The proof of this lies in the notes Madison made of the
debates in the Constitutional Convention, and in the language of the
Constitution. Remember Madison’s discussion about the nature of relationship of
the States, under the Articles of Confederation? That, in the context of one
party’s breach of duty, the others were at liberty to rescind the deal?
Mr. Randolph, of Virginia, had expressed the defect in the
Articles that allowed this; he observed, at the opening of the convention,
“that the federal government could not check the quarrels between the states,
not having constitutional power nor means to interpose according to the
exigency." Madison had answered this, with the remark that “the use of force
against a state would look more like a declaration of war and would probably be
considered by the party attacked as a dissolution of all previous compacts by
which it might be bound." (That is, of course, why the Articles of
Confederation lacked any power in the government to coerce the member states.) And
then Madison moved that the issue be postponed and the motion, he reported in
his notes, was agreed to. (Notes, supra, at p. 45.)
A week after it was postponed, Mr. Charles Pinckney, of South Carolina, and Mr. Madison engaged over the issue. Mr. Pinckney moved that “the States
must be kept in due subordination to the nation; that if the States were left
to act of themselves in any case, it would be impossible to defend the national
Mr. Madison seconded Mr. Pinckney’s motion. “Should no such
precaution be engrafted," he said, “the only remedy would lie in an appeal to
coercion." Madison paused, then continued: “Was such a remedy eligible? Was it
practicable?" He asked rhetorically.
(Charles Pinckney from South Carolina)
Then Madison stated the practical situation frankly: “Could
the national resources, if exerted to the utmost enforce a national decree
against Massachusetts abetted perhaps by several of her neighbors? A small
proportion of the community, in a compact situation, acting on the defensive,
and at one of the extremities might at any time bid defiance to the National
authority. Yet any government of the United States formed on the supposed
practicality of using force against the unconstitutional proceedings of the
States would prove as visionary and fallacious as the government of the
[Articles]." These were expressions of his conflicted thoughts.
Mr. Elbridge Gerry, of Massachusetts, replying to this,
“observed that the proposed negative would extend to the regulations of the
Militia, a matter on which the existence of a State might depend. The National
Legislature with such a power may enslave the States. Such an idea as this will
never be acceded to. It has never been suggested or conceived among the
Roger Sherman, of Connecticut, took the floor, here, to say: “However novel it
might appear the principle of it is right. There is no instance in which the
laws say that the individual be bound in one case, and at liberty to judge
whether he will obey or disobey in another. The cases are parallel. Abuses of
power over the individual person may happen as well as over individual States.
If discretion must be left on one side or the other, will it not be most safely
lodged on the side of the National Government?"
Mr. Sherman continued: “To correct the vices of the Articles
is the business of this convention. One of its vices is the want of an
effectual control in the whole over its parts. What danger is there that the
whole will unnecessarily sacrifice a part? But reverse the case, and leave the
whole at the mercy of each part, and will not the general interest be
continually sacrificed to local interests?" (Did not Lincoln read Madison’s notes?)
To this Mr. John Dickerson, of Delaware, responded: “We must
take our choice of two things. We must either subject the States to the danger
of being injured by the power of the National Government, or the latter to the
danger of being injured by that of the States." He thought the danger greater
from the States. “To leave the power doubtful," he said, “would be opening
another spring of discord."
Mr.Dickerson’s colleague, Gunning Bedford, continued the
discussion: “Will not these large States crush the small ones whenever they
stand in the way of their ambitions? But after all, if a State does not obey
the law of the new system, must not force be resorted to as the only ultimate
remedy, in this or in any system?"
On Saturday, June 9th, Mr. Luther Martin, of Maryland, took his seat, and Madison, after recounting what had been settled, wrote, “No
other amendments were wanting than to mark the orbits of the States with due
precision, and provide for the use of coercion, which was the great point."
Back and forth for three months, the delegates went on
debating the pros and cons of what they called the “National Plan" vs the
“Federal Plan." As to the elusive issue of how the Federal Government might
enforce its laws against the States, Alexander Hamilton, as has been already
quoted, was adamant that coercion by force of arms was impossible. “Consider
what such a State as Virginia will be in a few years. How strongly will it feel
its importance and self-sufficiency? It will enjoy the habitual attachment of
the people. The whole force of this tie is on the side of the State government.
Its sovereignty is immediate before the eyes of the people; its protection is
immediately enjoyed by them. How can force be exerted on the States
collectively? It is impossible. It amounts to a war between the parties."
Thus the debate went, in bits and pieces, back and forth,
back and forth; until they came to the end and tendered the constitution they
designed to the people of the States to ratify or reject as each might choose.
In July 1861, speaking on the floor of the Senate, Mr. Callamer of Vermont said:
“There are gentlemen here who insist that you cannot subjugate a State; and if you go on to subjugating the people, do you not subjugate the state?
The idea started by these gentlemen is that you cannot make war upon a State; and they argue this, by citing what was said by Hamilton, Madison and Ellsworth in the convention that framed the constitution. I do not think anyone ever more deluded with quotations than they have been. The framers used their expressions to show that, under the old confederation the general government had no power to make a law at all. When our fathers got together to form a constitution, the first question was whether to patch up the arrangement of the Articles of Confederation. Mr. Hamilton and the others used all the expressions which are now being quoted, for the purpose of showing that you could not mend the Confederation to make it practicable. Can we, they asked, constrain the states to furnish their contributions? If you do constrain them, it must be by arms; and that is civil war at once, and will be the end of the very government you are trying to carry into effect. The expressions had their effect. Our fathers abandoned the old government and made an independent government, with power to make its own laws, and execute them upon individuals; and now those expressions are being perverted from their purpose.”
Nowhere in his notes did James Madison include any proposals
for specific language covering the issue of the Federal Government’s power of
coercion by forces of arms. Or any tabulations of votes on motions relating to
such proposals. But nonetheless there is in the Constitution as it came from
the framers’ hands a grant of such power to the Congress. General Washington
must have understood, from his experience of almost thirteen years resistance
to the Crown, that the test of independence from an established government is,
always, a test of arms. As it was for him, so it should be for his sons,
he must have thought as he wrote his signature down and invited the rest to
The Language of
Under Article I, Section 8, the Constitution reads, “The
Congress shall have power to provide for calling forth the Militia to execute
the laws of the Union, suppress insurrections and repel invasions."
What does this provision mean? Is not the meaning
The Third Congress of the United States passed the following
act, in 1795, to implement its power, under the quoted provision. At the time of
the Act’s passage, six of the thirty senators representing 15 states were
signers of the Constitution. George Washington was in his second term as
Contrary to President Lincoln’s reference, in his address, to
secession as “insurrection," it is plain the label gave him no authority under
the Constitution to call forth the militia of the Free States to invade the
Slave States. The language of the constitution means the word “insurrection" to
apply to an uprising inside a State against the government of that
State: nothing more, nothing less. The language of the congressional act of
1795 confirms this; “In Case of an insurrection in any State, against
the government thereof, it shall be lawful for the President of the United
States, on application of the legislature of such state. . .to call
forth the militia of any other state or states, as may be applied for, as he
may judge sufficient to suppress such insurrection."
But the second section of the Third Congress’s Act takes the
subject matter to an entirely different level. It reads, mirroring the express
language of the constitution, “And be it further resolved, That whenever
the laws of the United States shall be opposed, or the execution thereof
obstructed, in any state, by combinations too powerful to be suppressed by the
ordinary course of judicial proceedings, . . . it shall be lawful for the
President of the United States to call forth the militia of. . . any other
state or states, as may be necessary to suppress such combinations (The Rebellion
Governments); and the use of militia called forth may be continued, if
necessary, until the expiration of thirty days after the commencement of the
then next session of Congress."
Here is President Lincoln’s clear constitutional authority
to use force of arms against the seceded States, plain and simple. His power to
enforce it, though, lies in the power of the states to support him.
Still, Lincoln had made a public pledge in his
address that the government would “not assail" the seceded States, unless they
“first assailed it." He would honor the form of his pledge, for
the sake of appearances in the world, but not the substance.
New York Times, December 29, 2009
Power of Attorney, by Deborah Solomon
Solomon: “Which President would you say most violated
Laws enacted by Congress?”
Yoo: “I would say Lincoln. He sent the Army into offensive operations to try to stop the South from seceding. He didn’t call Congress into special session until July 4, 1861, well after this had all happened. He basically acted on his own for three months.”
Ryan comments: While Professor Yoo is certainly correct in stating what Lincoln did, it is surprising that he did not challenge the assumption Ms. Solomon’s question incorporates. President Lincoln violated no “laws enacted by Congress.” On the contrary he acted to enforce them, using as his authority the Militia Act the Third Congress enacted in 1795. The real question is whether Lincoln’s extraconstitutional actions, like suspending the writ of habeas corpus, can be justified by the threat secession posed to the security of the United States.
Law Professor John Yoo
Professor Yoo has taught at UC Berkely Law School (Bloat Hall) since 1993. Between 2002-2004, Professor Yoo was with the U.S. Department of Justice, and drafted the so-called "torture memos.
President Lincoln Stalls the Confederate Government
On March 11, U.S. Senator Robert M. Hunter, of Virginia, delivered a letter from the envoys of the Confederate Government to Secretary of
State William Seward:
“The Confederate States constitute an
independent nation, de facto and de jure, and possess a
government perfect in all its parts, and endowed with the means of self
support. With a view to a speedy adjustment of all questions growing out of
this political separation, we are instructed to invite the Government of the United States to negotiate a peaceful solution to it.
The next day Seward wrote a note
to Senator Hunter, saying: “It will not be within my power to receive the
gentlemen of whom we spoke yesterday."
Seward became Secretary of State on March 5, 1861. Seward had numerous political friends in the South and he had kept communication with them, going even to
Jefferson Davis. Using these sources, he had for months, been pushing the theme
that he would be a firm advocate of the amicable settlement of very question
and would convince Lincoln to adopt a policy of reconciliation and peace. It
was well known, then, by everyone that Seward was advising Lincoln not to
employ a military force in an attempt to reinforce Fort Sumter. Seward felt
confident that by avoiding hostilities with the seceded states, they could be
persuaded to return; “fraternity," Seward told Lincoln, “will rescue the Union from all its dangers." With this his mind-set, Seward attempted to gain Lincoln’s consent to entertain the Confederate envoys in a personal meeting, but Lincoln declined. To do so, would have been a virtual recognition of the Confederate
The Confederate envoys responded to Seward’s communication
with Hunter, by sending a note to Seward’s office on March 13th
which requested a formal audience. Seward did not immediately respond to the
envoys’ note, because had he done so he would have had to formally refuse the
audience which, in turn, would have sent the envoys home. The channel of
peaceful communication would thus be closed between the two governments and war
would soon follow. Seward believed that the evacuation of Fort Sumter would pave the way for the country to calm down and give him time to effectuate a
reconstitution of the Union peaceably. Somehow, Seward decided, he had to
control the patience of the Confederate envoys in order to gain time to push
his conciliation agenda with Lincoln. So he enlisted the aid of U.S. Supreme
Court Justice Nelson, of New York, to induce his associate on the bench, John
A. Campbell, of Alabama, to soothe the envoys by acting as a go-between.
Justice Samuel Nelson
Justice John Campbell
Justice Campbell, with Justice Nelson present, met with
Seward on March 15th. Seward told Campbell that Sumter would be
evacuated before a letter could reach the Confederate Capital, and that, while
the evacuation of Sumter was as much as Lincoln could bear, there would be no
immediate action as to Fort Pickens. Campbell carried this message to the
Confederate envoys, leaving them with a written statement expressing “perfect
confidence" that Sumter would be “evacuated in the next five days." Campbell, on Seward’s behalf, asked the envoys to wait in Washington until the evacuation
of Sumter could be confirmed. The envoys communicated Seward’s relayed message
to Confederate Secretary of State Robert Toombs who telegraphed them back—“Wait
a reasonable time and then ask for instructions."
After five days passed and no word was received of Sumter’s evacuation, the envoys contacted Campbell to enquire what was happening, and Campbell contacted Seward. Conferring with Seward on March 21, Campbell sent a message to
the envoys: “Confidence in Seward unabated, will be able to speak positively
tomorrow afternoon." On 21st, Campbell reported the same thing and
the Russian Ambassador, after visiting Seward that day, went to the envoys and
told them Seward had said there would be “no coercion."
President Lincoln Takes Command of the Government
During the first two weeks, following his inauguration, Lincoln spent the days meeting and greeting hundreds and hundreds of officer-seekers,
selecting some, rejecting others, and sending nominations to the Senate, which
had remained in session after the congress officially recessed. During this
time, also, he kept close watch on the proceedings going in the Virginia State
Convention at Richmond, while he struggled with getting his cabinet ministers
in line behind him.
Fills the Cabinet slots
On March 5 the President sent his nominations to the Senate
for confirmation. Four of the nominations were both payback for the nominees’s
support of Lincoln’s candidacy at the Republican National Convention and a
means of bringing together the diverse political elements of the party.
Three of the seven men were originally Democrats or old-line
Whigs who had migrated into the Republican Party in the 1850s, as the old
parties decayed, splintered, and, in the case of the Whigs, disappeared. These
men were Edward Bates, nominated as Attorney General; an old Whig, a slave
holder who had emancipated his slaves, and a popular politician from Missouri. Simon Cameron, nominated as Secretary of War; an influential politician from Pennsylvania with a heavy financial involvement in Pennsylvania railroads. And Gideon
Welles, from Connenicutt, nominated as Secretary of the Navy. Montgomery
Blair, nominated as Postmaster General, was a member of the politically
influential Blair family, who had left the family home base in Washington many years earlier and his brother, Frank, had taken control of Republican
politics in Missouri. Another old-line Whig, turned Republican, was Caleb
Smith, of Indiana; nominated as Secretary of the Interior. Lincoln’s choice of
these men was based primarily on their control of the party apparatus in their
respective states, and, in the case of Blair and Bates, their importance to Lincoln was their control of politics in Missouri, in Lincoln’s mind an essential border
state, along with Kentucky, for the Union to hold.
As for the two top slots, Secretary of State and Secretary
of the Treasury, Lincoln had nominated William Seward, of New York, and Salmon
Chase, of Ohio. These two men were antagonistic toward each other, their
politics over secession and slavery being at opposite poles. Lincoln had
offered Seward the position of Secretary of State early in December, 1860 and
Seward, despite being irritated that Lincoln had not called upon him for advice
as to policy, accepted the position. Then, the day before the inauguration,
Seward had abruptly resigned, only to have Lincoln refuse the resignation and
insist he remain in the cabinet. Now, as his appointment was confirmed by the
Senate, Seward was hard at work, trying to move Lincoln to his point of view:
no coercion, conciliation, was his mantra.
As for Salmon Chase, he was the most radical Republican of
them all, espousing abolition as the solution to the issue of slavery. Lincoln waited after the inauguration and then sent Chase’s nomination as treasury
secretary to the Senate where Chase was seated, without first informing Chase
he was doing it. Chase left the Senate and went to Lincoln at the White House,
announcing his refusal as he sat down with Lincoln in his office. As he had done
with Seward, Lincoln insisted that Chase take the position and Chase finally
Maneuvers the Cabinet into Consensus
While Secretary of State Seward was keeping the Confederate
envoys waiting for an audience, Lincoln asked both General Scott and Secretary
of War Cameron to inform him whether it was possible, and wise, to provision Fort Sumter. Cameron provided Lincoln with a memorandum on March 15 that answered, no to
both questions. First, Cameron explained, all the officers within Fort Sumter, together with General Scott, expressed the opinion that “it is impossible to
succor the fort." It was true, Cameron went on, that, back in December, Captain
Ward of the U.S. Navy had believed it practical to resupply the fort, by means
of small steamers, but, with the build-up of Confederate batteries around the
fort, this plan was pronounced unfeasible. Gustavus V. Fox, a sometime seaman
and brother-in-law to Montgomery Blair, was now proposing a similar plan, using
light draught boats, but it was no more practical under the changed circumstances
that were Ward’s. Cameron then stated that he believed “the attempt to carry
Fox’s plan into effect would initiate a bloody and protracted conflict," and
closed his memorandum this way:
“Fort Sumter was intended, as her
position on the map will show, rather to repel an invading foe. The range of
her guns is too limited to reach the city of Charleston, if that were
desirable. No practical benefit will result to the government by accepting
Fox’s plan, and I am therefore of the opinion that the public interest would be
best promoted by adopting the counsels of Major Anderson and General Scott
[that, in essence, the fort be surrendered]."
At the same time, Secretary of State Seward was crowding Lincoln to the wall, with the same argument as Cameron’s:
“The facts of the case are known to be
that the attempt to provision Fort Sumter must be made with the employment of a
military and naval force which would provoke combat and probably initiate a
civil war. . . Suppose the expedition successful. What is the garrison to do
then? Is it to make war by opening its batteries and attempting to demolish the
defenses of the Carolinians? If it can, how will it serve to check or prevent
disunion? In either case, it seems to me we have inaugurated a civil war by
our own act, without an adequate object, after which reunion will be
“I would not provoke war now. I would
defer military action on land until a case should arise where we would hold the
defensive. In that case we should have the spirit of the country on our side.
In the other, we should risk peace and union, because we had not the courage to
Salmon Chase, the raging abolitionist was turning his face
from the fire too. He counseled Lincoln on the issue of Sumter this way
“If the attempt will so inflame civil
war as to involve the immediate enlistment of armies and the expenditure of
millions I cannot advise it. Better to recognize the organization of actual
government by the seceded states as an accomplished revolution and let it try
The rest of the cabinet members, except for Montgomery
Blair, who was champing at the bit to initiate the war, gave Lincoln their
written opinions that Sumter wasn’t worth the Federal Government being
responsible for starting a war. Bates wrote that Lincoln should not “do any act
which may have the semblance before the world of beginning a civil war." Welles
told Lincoln that it was unwise “to provoke hostilities." Caleb Smith said the
Perception as of March 15.
Abraham Lincoln closed the March 15 Cabinet Meeting with an
impatient wave of his hand, nodding his head toward the door, inducing Seward
and the others, his secretary, John Nicolay included, to leave him alone in the
conference room. He stepped with a loping, vigorous stride toward the bank of
casement windows that lined one wall of the room and, stopping at one of them,
leaned his hands on the window sill and looked out over the barren plain that swept
away from the Capitol to the Potomac. On the slight rise of a hill toward the
center of the plain, huge blocks of sandstone were strewn around the pedestal
that was to support Washington’s monument.
A barely audible groan passed Lincoln’s tight lips. His mind
was in turmoil, a hard anger filled his being, cementing his resolve: he was
convinced that there was no alternative to war. But what was he to do?
These men he had brought together as his cabinet, most of them were
northeastern men, educated in fine universities, city men, living in mansions,
with money in the bank, sharing together the atmosphere of exclusive clubs, the
theater, fine dining. He had nothing in common with them, not their social
equal; yet he must somehow exert his will over them, bring them
into line behind him in the unavoidable horrible endeavor ahead.
They were right, of course, to fear bringing on the
war. It would be a gruesome slogging conflict; like a slugging match between
two vicious bare-chested men in the dust. It would not end until one or the
other was completely broken down, totally exhausted, knocked fatally unconscious.
To prosecute it, the Government would have to raise huge amounts of cash,
organize and equip armies ten times the size of the Regular Army then defending
the western frontier. And the Congress would be an obstacle; getting the
Cabinet under control might keep most of the factions of the Republican Party
in line, but the Democrats were a strong minority, and joined with the
Republican conservatives, they would howl and use the arcane rules of procedure
in the Senate to filibuster efforts to push through legislation supporting the
build-up of the army and navy. The whole enterprise would be bogged down in
incessant debate, and, worse, the country was not ready for the sacrifice
required. Public opinion simply did not see the issue of secession as a cause
for war. He was certain of this.
Lincoln averted his eyes from the glowing plain and turned
away from the window, shaking his head almost imperceptibly from side to side.
He went to the conference table and dropped sluggishly into a chair. He swung
one of his long legs onto the table top and rocked back and forth. His eyes,
half-lidded, were vacant and distant, projecting the cold thoughts seeding his
What’s to be done? What’s to be done? he said to himself,
and he knew the answer, had known the answer since the day he heard that South Carolina had seceded. He would wait until the Senate’s executive session adjourned,
and then make it seem to the Confederates that he had sent a military force to
invade Charleston Harbor, inducing them to fire on Fort Sumter; and then he
would use the incident as his excuse, under the Militia Act of 1795, to call
upon the governors for troops to build an army.
And he would induce Seward to carry the plan into execution.
Seward would do it, once he realized the decision to make war was unchangeable.
He would do it, rather than have the expedition be repulsed by the Confederates
defending Charleston Harbor.
Thinking this, a smile came over Lincoln’s face as he
scratched at his chin with the tips of his fingers. Then he brought his leg
down from the table and leaned forward; taking up a calendar that lay on the
table, he stared at it for a long time. It was Friday, March 15th. The Senate
would adjourn on the 28th. He would use the two weeks to make Seward
understand what had to be done; and,. in the meantime, he would keep the
Confederates in suspense, sending down to Charleston some emissaries, letting
them think he was being pushed by the pressures within his party toward
evacuating Fort Sumter.
for a moment, a sudden grimace drew the muscles of Lincoln’s face tight as the
issue of Virginia came flashing into his mind. He leaned over with a sigh, and
with a forearm on his knee, stared at the floor pensively, absently rubbing the
calf of his leg with his hand. The one thing that he was willing to give up Sumter for, let the Confederates have it, was keeping Virginia in the Union. If Virginia stuck with the Union, so, too, he was sure, would North Carolina, Tennessee, and Arkansas. There would be then twenty-six states holding the Union together, opposing the seven states constituting the new confederacy. With Virginia
in the Union, there was the greatest possibility that the Government’s policy
of coercion would quickly produce reunification as the power of the Union’s
armed forces were immediately exerted against the homelands of South Carolina,
Georgia, and Alabama, even Louisiana and Mississippi. With Virginia on the Union’s side, the war might be swiftly concluded.
But this was wishful thinking, Lincoln chided himself. Since
the middle of February the Virginia State Convention, meeting in Richmond, had been in session considering the issue of secession. Everyday the newspapers
were reporting the speeches by the delegates, and Lincoln had read them,
clinging to the hope that Virginia would stick with the Union. Now, in the
middle of March, the whole committee of delegates were about to report
propositions to the general assembly for an up or down vote on secession. The
majority of delegates seemed strongly opposed to secession, but this would most
certainly change, once it was clear the Government’s policy was coercion.
Lincoln shook his head, thinking this: It was certain in his
mind that Virginia would not support the Union. With Virginia and her allies
gone from the Union, the contest of arms would be eleven states, perhaps twelve
or thirteen, if Kentucky and Missouri went out; against perhaps twenty. It was
this difference—the alignment of Virginia—that would make the conflict so short
or so brutally long-lasting.
The President slowly raised himself from the chair, using
his hand on the table as a brace he gathered himself. He took a long loping
stride toward the Cabinet Room door.and, reaching the hallway, called to his
friend Ward Lamon, who was sitting on a sofa waiting for him. Lincoln wrapped an
arm around Lamon’s shoulder, and spoke quietly to him, taking him down the
The New York
Times Reports From Charleston
On March 26, Confederate general, G.T. Beauregard,
commanding Confederate forces at Charleston, sent a letter to Major Anderson at
Charlestown, S.C. March 26, 1861
Major Robert Anderson, U.S. Army, Commanding at Fort Sumter:
My Dear Major: Having been informed
that Mr. Lamon, the authorized agent of the President of the United States,
advised Governor Pickens, after his interview with you at Fort Sumter, that
yourself and command would be transferred to another post in a few days, I hasten
to inform you that our countries not being at war, no formal demand for
surrender will be made upon you, unless brought about as the natural result of
Whenever you are ready to leave the
fort, we will be happy to see you are provided with proper means of
transportation out of this harbor for yourself and your command. No objection
will be raised to your retiring with your arms, and to your saluting your flag
on lowering it.
I remain, dear
major, yours, very truly,
On March 29, 1861, President Lincoln wrote the following
Executive Mansion, March 29, 1861
Simon Cameron, Secretary of War:
Sir: I desire an expedition, to move by
sea, be got ready to sail as early as the 6th of April next, the
whole according to memorandum attached, and that you cooperate with the
Secretary of the Navy for that object.
Your Obedient Servant,
Enclosure No. 1
NAVY DEPARTMENT. Preliminary orders—Steamers
Pocahontas at Norfolk, Pawnee at Washington, Harriet Lane
at New York, to be under sailing orders for sea, with stores, for one month.
Three hundred men to be kept ready for departure from on board the receiving
ships at New York.
WAR DEPARTMENT. Preliminary orders—Two
hundred men to be ready to leave Governor’s Island in New York. Supplies for
twelve months for one hundred men to be put in portable shape, ready for
instant shipping. A large steamer and three tugs conditionally engaged.
On March 31, Major Anderson sent a message to Colonel
Lorenzo Thomas, who had taken the place of General Samuel Cooper, Adjutant
General, when Cooper resigned and joined the Confederate Army.
Fort Sumter, S.C., March 31, 1861
Colonel: I have the honor to report
that, as our provisions are very nearly exhausted, I have requested Captain
Foster to discharge his laborers, retaining only enough for a boat crew. I hope
to get them off tomorrow. The last barrel of flour was issued day before
I am, Colonel,
respectfully, your obedient servant,
ANDERSON, Major, First Artillery, Commanding
Robert E. Lee Returns From Texas
Early in the evening of March 1, 1861, Robert E. Lee arrived at Arlington. How he returned from Texas is not known; probably taking a
steam vessel from Indianola (Corpus Christi today) he no doubt traveled first
to New Orleans, where he either took trains to cross the country, or took a
steamer to New York and then a train down to Washington. Several weeks after
his return to Arlington, he received a letter from Lorenzo Thomas, the
temporary Adjutant General of the Army, informing him of an offer from
Secretary of War Cameron tendering to him a commission as colonel in the First Cavalry
Regiment. Lee accepted the commission on March 30, 1861.
His return to Arlington marked the thirty-seventh year of
his military service to the United States, a service that he began in 1824 when
he entered the United States Military Academy at West Point at the age of
Graduating from West Point, in 1829, Lee was assigned to the
Army Corps of Engineers which he remained in for thirty-two years, his posts of
service taking him to Fort Monroe, at Hampton Roads Virginia, Fort Hamilton, in New York harbor, Baltimore, and St. Louis. Except for his stays at Fort Monroe and Fort Hamilton, his wife, Mary Randolph Custis Lee, remained at Arlington with her father, George Washington Custis, who owned the plantation, and her
seven children, three boys and four girls.
Lee Accepts Commission
as Colonel, First Cavalry Regiment
The Enigma of
In 1855, during the Filmore Administration, Lee, then
forty-nine, made a strange career decision. At this time Lee could have easily
retired from the Army and lived the good life of the Virginia gentleman;
perhaps travelling with his wife to Europe for an extended time, visiting his
sister and his half-brother who had resided there for years, or he could have remained
in Virginia enjoying the events that made the exclusive social circuit of
Virginia’s first families sparkle with gaiety through the seasons as the clans
gathered at one country estate after another. But instead of doing this, Lee
suddenly switched his status from that of an engineer to that of an officer of
the line, taking a commission as lieutenant colonel of the First United States
Cavalry which then was being formed to take post in the hill country of Texas.
Why, at the age of forty-nine, would Lee substitute the life
of an army engineer, where his posts were confined to major cities, or that of the
Virginia gentleman, for the life of a cavalry officer whose post was an
isolated camp on the Texas plains watching over a band of Comanche?
The reason can only be guessed at. It appears from the
record that Lee was, in fact, a solitary man, projecting a persona to those
below his social station, of courtesy but also an aloofness, a cold dignity
that seemed designed to chill intimacy. E.D. Keyes, military secretary to
General Scott at the time Lee returned from Texas, gave this impression of him:
“His sense of superiority was never questioned, his nature was genial and
sociable, a favorite with the ladies, but the presence of him, and the graces
that clustered around him, oppressed me, and I doubt he ever excited envy in
any man." It appears, also, that Lee was by 1850 known publicly, as evidenced,
for example, by the New York Times, a paper allied with both William Seward and
General Scott, reporting his return from Texas with the observation that he
“was worth a battalion" to the Union. That he was publicly known is explained
by the fact that Lee was, after all, the one man most connected to Washington, by birth as a Lee and by marriage to a Custis. From these facts it is
reasonable to presume that, in taking his cavalry post in Texas, Lee either wanted
to keep distance between himself and his wife and family, or, foreseeing the
war to come, he wanted to ready his mind and body for the rigors of field command.
Perhaps it was a combination of both.
widow in 1870
Lee’s Bride in 1829
Lee, Lee’s eldest son
Rooney Lee, Lee’s second eldest son
Robert E. Lee Jr.,
Lee’s youngest son
Mildred Custis Lee
Substitution of General Twiggs For Lee in Texas
Lee’s return from Texas raised some eyebrows: A year
earlier, Brigadier General David E. Twiggs, a hero in the War with Mexico, had been in command of the Department of Texas. In December 1859, due to advanced
age and acute illness, Twiggs, a native Georgian, left Texas on a leave of
absence, taking up residence in New Orleans. Lee took his place. On November 7, 1860, just as Lincoln was elected president, General Scott ordered Twiggs back
to duty. In December 1860, Twiggs arrived at Army headquarters in San Antonio and relieved Lee of the department’s command. Lee then removed himself to the
headquarters of the Second Cavalry Regiment at Fort Mason, a hundred and forty
The question was asked at the time: Why should Robert E.
Lee, sound of mind and body, be relieved at such a perilous moment and Twiggs,
a true invalid, pushed in his place? The answer given, is that either the
secessionists wanted Lee out of command, or Lee, himself, wanted out of the
command. In either event, General Scott accommodated him, by ordering him to
report to Washington by March 30th. And, as Lee left Texas for the journey
east, Twiggs surrendered the Army’s posts and materiel in Texas, to the
It is inconceivable, given what is known about Lee, that,
had he remained in command of the Department of Texas when the secessionists
came to San Antonio in force, he would have surrendered the military post and
its stores to the secessionists. Presumably, Lee would have acted as Major
Robert Anderson was acting in command at Fort Sumter. Lee would have probably
resisted the secessionists’ effort to take possession of the military post and
its stores with force of arms.
Had this happened, it seems likely to have placed him, in
the public eye, clearly in support of the Union’s effort to coerce the seceded
states and made him a political liability in the eyes of Southern leaders,
making him unacceptable as a commander of Confederate forces. A reasonable
suspicion arises from this that the Southern politicians, led by then Secretary
of War, John Floyd, of Virginia, may have induced General Scott to order Twiggs
back to duty; indeed, Twiggs may well have returned to duty, prompted to do so
by the politicians; for no sooner had Twiggs arrived in San Antonio than he was
peppering Scott with messages seeking to be relieved. Scott accommodated Twiggs
by ordering Colonel C.A. Waite, commanding the First Infantry Regiment at Camp Verde, to assume Twiggs’s position. Waite arrived at San Antonio on February 18, just
after Twiggs surrendered the post and a day after Lee had passed through the
town on his way to the coast to take passage home. Why was it necessary to do
this, when Lee was already in command? Some would say there had been treachery