PHILLIP S. PALUDAl THE ELECTION OF 1864 was an important one, perhaps the most important this nation has ever had. The people of the North were going to walk, not march, to the polls and cast their ballots. They might even decide to repudiate the war itself, to throw Lincoln out and put in his place the Democratic party candidate, George B. McClellan.
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Lincoln, The Rule of Law, And the American Revolution - Paludan
PHILLIP S. PALUDAl THE ELECTION OF 1864 was an important one, perhaps the most important this nation has ever had. The people of the North were going to walk, not march, to the polls and cast their ballots. They might even decide to repudiate the war itself, to throw Lincoln out and put in his place the Democratic party candidate, George B. McClellan.
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PHILLIP S. PALUDAl THE ELECTION OF 1864 was an important one, perhaps the most important this nation has ever had. The people of the North were going to walk, not march, to the polls and cast their ballots. They might even decide to repudiate the war itself, to throw Lincoln out and put in his place the Democratic party candidate, George B. McClellan.
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PHILLIP S. PALUDAl\ THE ELECTION OF 1864 was an impor- tant one, perhaps the most important this nation has ever had. It was important pri- marily because it was happening at all. In the midst of this country's bloodiest war-a war that would ultimately take more than 600,000 lives (one out of every eleven men of service age), a war that quite literally often pitted brother against brother-the people of the North were going to walk, not march, to the polls and cast their bal- lots; they might even decide to repudiate the war itself, to throw Lincoln out and put in his place the Democratic party candi- date, George B. McClellan. If they did so, they might be said to be declaring that the United States would be the disunited states of America-two nations where there had been one. Many believed that in voting against Lincoln they would be saying that the Constitution had failed . Almost cer- tainly if Lincoln lost, the slave's hope for Philli]: S. Paludan is associat e professor of history at the University of Kansas. He is the author of A Covenant with Death: The Constitution, Law, and Equality in thc Civil War Era . This paper ll'{l S presented at the 1976 Lincoln Symposium at Springfield. 10 liberty would end. The election was hotly contested, and as far as Lincoln knew he might just lose it. In fact he predicted that he would lose. ' On a small farm near Sturbridge, Mas- sachusetts, John Phillips knew how he was going to vote. Phillips was a Democrat of the Thomas Jefferson school, and in 1864 he was 105 years old. The first presidential candidate he had voted for was George Washington. Election day came in the fall of 1864, and John Phillips got on his horse and rode alongside his son, who was only sev- enty-nine at the time. Together they rode into Sturbridge to the polling place at the town hall. They got off their horses and walked into the hall through a door bor- dered by two flags-both of them the Stars and Stripes. When Phillips entered the hall, the people there stood up and took off their hats. He was the oldest man in ' Roy P. Basler, ed. , Marion Dolores Pratt and Lloyd A. Dunlap, asst . eds., The Collected Works of Abraham Lincoln (New Brunswick. N.J. : Rutgers University Press, 1953-1955), VII , 514 (the series is hereinafter cited as Collected Works). ..... 1 I' , Z, // "",,; 2-9$0'1 J I In: I'" 1''''' ) '7' J J(' L ""J
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12 town, and maybe the oldest man in the nation. To them, he was a symbol of the Revolution of 1776. He had lived the Rev- olution that they only read or talked about. Massachusetts did not have the secret ballot in 1864, and Phillips was offered his choice: he could take a ballot with McClel - Ian's name on it and vote for the Demo- cratic party and all it stood for, or he could vote for Lincoln and all the Republican party stood for. Phillips stepped forward. Bystanders paused to hear what he would say. "I vote," he said, "for Abraham Lin- coln." It was a resonating moment, more important than any single vote out of the more than 2,300,000 Lincoln received, for at that moment the revolutionary genera- tion touched Lincoln and endorsed his ef- Forts ." Not every person of the revolutionary generation would have voted for Lincoln; perhaps many would have repudiated him. Cerr a i nl y the Confederacy had doubts about whether or not Lincoln de- served such su pport. Yet those who voted for Lincoln in 1864 must have believed that the symbol did match reality-that Lincoln was in fact the descendant of the revolutionary tradition, and that he was leading the fight to preserve what the blood of 1776 had been spilled to create. Lincoln himself thought so: "Four score and seven years ago our fathers brought forth on this continent, a new nation, con- ceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. :" Lincoln had been thinking about the central issues of the American Revolution for many years before his November 19, 1863, address at Gettysburg. "I have never had a feeling politically," he said in Febru- ary, 1861, "that did not spring from the sentiments embodied in the Declaration of Independence." He had often wondered, he added, what kept the revolutionary sol- diers struggling in their fight for indepen- dence. He thought it was the Declaration. Something more than just separation from England; rather, a hope that they were LINCOL:-.J AND THE AMERICAN REVOLUTION giving not only liberty to themselves but hope to the world that some day all men, everywhere, should have an equal chance.' As Lincoln thought about 1776, two themes emerged. Both would be impor- tant in his response to the Civil War crisis, and both have a message for people one hundred years later. The themes are, first, veneration for the rule of law and, second, preservation of the revolutionary ideals. Lincoln's respect for the rule of law fo- cused on the importance of law and order in a democratic society. In his July 4, 1861, address he put the question squarely: "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?" Where was the line between liberty and order? How could a nation guarantee order without crushing the very liberty it sought to preserve?' Lincoln made his first statement on that question in 1838, and his emphasis then was on order. In January of that year the Young Men's Lyceum of Springfield had asked him to speak on "The Perpetuation of Our Political Institutions." Lincoln pre- pared his talk in an atmosphere charged by recent incidents of civil disorder. Mobs had murdered Negroes in Mississippi, burned a black man to death in Missouri, shot and killed an abolitionist editor in Alton, Illinois, and terrorized directors of a bank in Baltimore. To be sure, Lincoln was a Whig and therefore opposed An- drew Jackson as "a concentrated mob," but his objections to mob control were not political only." In his speech to the Lyceum, Lincoln did, of course, call for a halt to mob vio- lence-not so much because of injustice to the victims (though that was appalling) as -tu, VIII. 118. ' Ibid., VII, 23 . -tu, IV, 240. -tu, p. 426. "Lbid., I, 108-15; Joel Parker, A Charge to the Grand JilT)' upon the Importance of Afaintaining the Supremacy of the Laws (Concord, N.H .: Marsh, Capen & Lyon, 1838) ; Leonard Richards, Gentlemen of Property and Standing: Anti-abolition Mobs in jacksonian America (New York: Oxford, (970); David Grimsted, "Rioting in Its Jacksonian Setting," American Historical Review, PHILLIP S. PALUDAN because of the example of lawlessness that mobs set. Soon, he believed, the decent, law-abiding, law-respecting people of the nation would lose faith in the ability of the government to preserve order. An even greater danger, Lincoln be- lieved, was that in such a situation, a tyrant might appear-not that the many would generate anarchy, but that one man would establish a tyranny of misrule. Lincoln feared that the best citizens would see the excesses of mobs as proof that democratic government could not work. The govern- ment of the country would then be "left without friends, or with too few, and those few too weak, to make their friendship effectual." At such a moment the ambitious man, the man whose ambition over- whelmed his devotion to the existing sys- tem, would gain power, "seize the oppor- tunity, strike the blow, and overturn" the nation's political system.' Lincoln faced a potentially telling rebut- tal, however. In the American Revolution there had been mobs in the streets, as well as the repudiation of an existing form of government-government unmaking on a large scale. Hundreds of thousands of Americans had devoted themselves to demonstrating that the British form of rule did not work. Yet that disorder had not spawned a tyrant. Did not history therefore repudiate Lincoln? Was not his argument the sort of political blather one could expect of a Whig seeking to curtail the triumph of Jacksonian democracy? Was Lincoln not merely turning occasional outbreaks of violence into an excuse to throwDemocrats out of office? Did not the success of 1776 expose Lincoln's rhetoric as shallow and politically expedient? i7 (1972), 361-97; Sidney George Fisher, A Philadel- phia Perspective: The Diary of Sidney George Fisher, ed. Nicholas B. Wainwright (Philadelphia : Historical So- ciety of Pennsylvania, 1967), pp. 154-58. "Collected Works, I, I I 1-12. "Ibul., pp. 114-15. For a general description of the widespread national disquiet over the demise of the revolutionary generation, see Fred Somkin, Unquiet Eagie: Memory and Desire in the Idea of American Free- dom, /8 /5-1860 (Ithaca, N .Y. : Cornell University Press, (967) . "Collected Works, I, 112-15. I : ~ There is no question that political ex- pedience was involved in Lincoln's re- marks. He was not a saint. He was an ambitious young Whig politician. The Democrats were in office; the Whigs were not. What he said had political purpose. But it also reflected significant insight into the meaning of the American Revolution. Far from invalidating Lincoln's argument, history-viewed as the passage of time in- stead of as a frozen moment-showed the quality of his vision. For the date was not 1776. It was 1838 and the meaning of the Revolution was different. The revolution of 1776 had not pro- duced a tyrant because, as Lincoln put it, "the jealousy, envy, and avarice, incident to our nature, and so common to a state of peace. . . were, for the time, in a great measure smothered and rendered inac- tive; while the deep rooted principles of hate, and the powerful motive of revenge, instead of being turned against each other, were directed exclusively against the Brit- ish nation." But by 1838, as Lincoln said, the "state of feeling" that had prevailed during the Revolution "must fade, is fad- ing, has faded, with the circumstances that produced it." The Revolution survived in memory as a historical event, but the ideals of those who lived it-rather than reading and hearing about it-were gone. By 1838 time had done what invading armies could not do. The men whose convictions had brought on the Revolution were passing away. Those pillars of the temple of lib- erty, as Lincoln called them, were crum- bling, and the temple would also fall unless something was done to hold it up." What, then, would save the Republic? Were the passing of time and the ambi- tions and avarice of man to be the undoing of the nation that Lincoln would later call "the last best hope on earth"? Lincoln thought not. A solution was available-a solution discovered by the revolutionary generation: government of laws and not of men. Reverence for law and the constitu- tional system would save the Republic. If reverence for law could become the "polit- ical religion" of the nation, Lincoln said, its people would find salvation from dis - order." 14 Lincoln spoke to perhaps the most com- pelling of the American traditions-that a country should be ruled by laws, and that legal-constitutional institutions should de- mand respect and devotion. In a society based on the individual pursuit of bene- fit-a society exalting individual rights and selfishness in both the economic and polit- ical spheres, a society of great geographic and economic mobility, with no rigid class lines to equal those of Europe, no estab- lished church, no enforced doctrinal pu- rity-what was to keep that society from flying apart ? Lincoln had the answer- respect for legal institutions, for all laws, for the due legal process of doing things, and for fellow citizens as lawmakers and law-respecters. If a government made by and for the people could not earn respect, what in the na me of heave n could hold it together. In a nation that encouraged, as no other did, the individual search of mil- lions for different personal ends, what would happen if its cit izens did not devote themselves to unity of means? Lincoln un- derstood profoundly the nation's devotion to its legal institutions and the order of law. He knew that the people, faced with threats to order, were likely to follow the man who promised order. Lincoln saw that the nation's greatest danger was not an- arch y but the compulsion to be saved from anarchy. " Lincoln's solution to the problem of a potential tyrant arose out of that same attachment to the order of law. He pro- posed devotion to laws as the nation's "po- litical religion." Perhaps he meant that a people could protect themselves from an order-espousing tyrant by devoting them- selves to laws, not men, and to the legally established political processes. Such devo- tion would prevent anyone man from promising to mai ntain order by ignoring or circumventing the law. Lincoln under - stood the ambitions of men. His own am- bition was a "little engine that knew no rest," as his fr iend William Henry Hern- don put it. And perhaps Lincoln's very self-knowledge gave him a devotion to the nation's restraints on such ambitions. II Whether his understanding of order in a democracy grew out of personal insight or LIl\:COLN AND THE AMERICAt\ REVOLUTION political awareness or a combination of the two, his conclusion was the same-the sal- vat ion of the nation depended on nurtur- ing and sustaining a devotion to the legal- constitutiona l system established during the revolutionary era. Lincoln's veneration for the rule of law is one aspect of the connection he has with the Revolution of 1776. But he also recog- nized that the Constitution was worthy of devotion because it was a constitution of liberty-one created to give life to the ideals of the Declaration of Independence. When Lincoln saw those ideals in danger, when he saw the spirit of 1776 repudiated, he was energized into action. I n 1820 the United States Congress passed the Missouri Compromise, which prohibited slavery above 36 30' latitude (the territories acq uired in the Louisiana Purchase) and provided that Missouri would enter the Union as a slave state and Maine as a free state. Most people believed that the Compromise was a resolution of the slavery issue in the territories. The government had committed itself to pro- tecting slavery in one place and allowing freedom to grow in another. To men like Lincoln that settlement was in accord with the ideals of the Revolution. It was a set- tlement that had to be made, but one that did not give national approval to slave ry. Lincoln believed that the founders of the nation believed that slavery was an evil, an evil that would die out in time. He thought that they had sanctioned slavery in the Constitution because without it there would have been no constitution at all. But they hoped and perhaps be lieved that that necessary evil would eventually fade away. " In 1854 it became apparent to Lincoln "' I ha ve elaborate d the importance of legal institu - tions for pre- Civil War society in ' T he Ame rica n Civil War Considere d as a Crisis in Law and Orde r:' American Hi storical Revi ew, 77 ( 1972) . 101 3- 34. "On Lincoln's personal ambition as a so u rce for his views of democracy. see Edmund Wil son, Patriotic Gore: Studies in the Literature of the AmeriwlI Ci vil lVar (New York: Oxford, 1962). pp. 99- 13 1. " Collected Works, II , 275. " Ibid. PHI LLI P S. PAL UDAl\: and to thousands of others that a basic issue of the Revolution of 1776 was, in fact, being repudiated. T he Kansas-Nebraska Act of 1854 , which allowed slavery to ex- pandabove the 363D' line, seemed to give the endorsement of the national govern- ment to the idea that slavery was not an evil to be quarantined. Lincoln charged that the Kansas-Ne- braska Act had changed the moral stance of the nation. " Near eighty years ago, " he said, "we began by declaring that all men are created equal; but now from that be- ginning we have run down to the other declaration, that for SOME men to enslave OTHERS is 'a sacred right of self-govern- ment.' " Lincoln noted that one senator, on the floor of Congress, had r ecently called the Declar ation of Independence a "self- evident lie"- a nd no one had rebuked him. Had such a statement been made at Iii Independence Hall in 1776, Lincoln in- sisted, "the very door-keeper would have throttled the man, and thrust him into the street. " 1:1 The ideals of the revolutionary era seemed to be dying with the men who had first espoused them. To that point Lincoln on several occasions quoted his political idol Henry Clay. Cla y, a slaveholder him- self, nevertheless believed that slavery would and should decline and die, and opposed those who defended human bondage. As Lincoln put it, " Henr y Cla y once said of a class of men who would repress all tendencies to liberty and ulti- mate emancipation, that they must, if they would do this, go back to the era of our Independence, and muzzle the cannon which thunders its annual joyous return; they must blowout the moral lig h ts around us; they must penetrate the human Inth is 1864 cartoon, distribut ed by Curr ier and l ues, Democratic presidential candidate George B. Mccllellan is port rayed as a conciliator between Lincoln and Jefferson Davis. 71-,. I" ",/1,,,,.11,. , ,',/I//, 17(,,'(1.r 10/"'-' ,1//".,11
",. TH[ T RU[ ISS LJ [ 0 R "T HATS WHAT S T H [ MAT T ER"', 16 soul, a nd eradicate t here the love of lib- erty; and then and not till then, could they perpetuate slavery in t his country."!' Lincoln saw the moral lights around him going out. In 1857 the United States Su - preme Court issued the Dred Scott deci - sion. It had two major points: First, Con- gress could pass no law that interfered with the right of slaveholders to take their slaves into the territories (an endorsement of the principle of the Kansas-Nebraska Act); second, no black man could be a citizen of the United States. The r ight to citizenship, as Chief Justice Earl Warren would later observe, is the most important right of all. It is the right to have rights. But in 1857 Chief Justice Roger Taney insisted that the revolutionary generation, the men who wrote the Constitution, did not be lieve that blacks were part of the national political body. The decision outraged Lincoln. He in- sisted that the revolutionary founders had in fact seen blacks as members of the po- litical community. Blacks had voted in New Hampshire, Massachusetts, New York, New Jersey, and even in North Carolina, during the revolutionary era. As a further indication of the low esteem in which slav- ery was held in that era, most states also made it easy for masters to free their slaves. But how things had changed. As Lincoln said, "In those days, our Declaration of Independence was held sac red by all, and thought to include all; but now, to aid in making the bondage of the negro univer- sal and eternal, it is assai led, and sneered at, and construed, and hawked at , and torn, till, if its framers could r ise from th eir graves, th ey could not at all recogni ze it. " T he black man's pli ght see med sym- bo lic of th e di sdain for liberty current in the land . All ~ h e po.wersof earth seem rapidly combining against him. Mammon is after him; ambition follows, and phi losophy follows, and the The- ology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instru- ment with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock LINCOLN A1\'D THE AMERICA1\' REVOLUTION of a hundred keys, which can never be un- locked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the im- possibility of his escape more complete than it is." Less eloquently Lincoln expressed his feelings to a correspondent: "When we were the political slaves of King George, and wanted to be free, we called the maxim that 'all men are created equal' a self evident truth; but now when we have grown fat, and have lost all dread of being slaves ourselves, we have become so greedy to be masters that we call the maxim 'a self-evident lie.' The fourth of J uly has not quite dwindled away; it is st ill a great day-for burning fire-crackers!!!"'" The secession crisis of 1860- 1861 brought together the two aspects of Lin- coln's devotion to revolutionary traditions: concern for the rule of law and apprehen- sion about the survival of the ideals of 1776. On the Fourth of July, 1861, Lincoln articulated the two concerns in a discussion of the right of revolution, made in re- sponse to declarations by secessionists that they were now doing four score and five years later what the founders had done in 1776. T he secessionists argued that they had been oppressed by a central power, and were therefore seeking autonomy- the right to be let alone, to live as they chose. Lincoln unknowingly had been prepar- ing hi mself all his adult life to answer that asse rtion. Yes, he ins isted, th ere is a r ight of re volutio n. And t he people may revolt against tyran ny. But the crucial question was, "What are you making a revolution " Ibid.. 1I1. 29 . -uu.. 11,403-04. ,,,lbid., p. 318. " Ibid., IV, 438. See also Thomas Pressly, " Bullets and Ballots: Lincoln and the ' Right of Revolution' ... A merical! Historical Review, 67 (1962) , 647-62; in that excellent article Pressl y emphasizes Lincoln's rela - tionship to the revolutionary tradition and his cr iteria PHILLIP S. PALUDAN for?" When a revolution took place for a morally justifiable cause, then revolution was a moral right. But when exercised without such a cause, it was "simply a wicked exercize of physical power." What was the cause, then, for which the South was revolting? Lincoln thought he knew. He saw that the southern states had hoisted the banner of the Declaration of Independence, but argued that it was not the banner of '76. "Our adversaries have adopted some declarations of indepen- dence ," he told Congress in July, 1861. But, "unlike the good old one, penned by Jefferson, they omit the words 'all men are created equal. ' Why? They have adopted a temporary national constitution, in the preamble of which, unlike our good old one, signed by Washington, they omit, 'We, the People,' and substitute ' We, the deputies of the sovereign and independent States.' Why? Why this deliberate pressing out of view, the rights of men, and the authority of the people?" Protection of the rights of men and the authority of the people had justified the Revolution of 1776 and made it more than a "wicked exercize of physical power.' :" Perhaps Lincoln's denial of the right of revolution to the Confederacy was only a rhetor ical coup. More compelling to him was the fact that secession-especially se- cession by gunfire-struck at the only se- curity the generation of 1776 had been able to pass on to its descendants-the institutions, the laws, and the Constitution. The men of the Revolution were gone, but their laws and institutions remained. And those had to become the "political religion of the nation." Lincoln insisted that any attempt to form a Confederacy by de- stroying the Union was illegal. There were nolawful means and no lawful justification for secession. for justifi ed and unjustifi ed revolutions. In this essay I have tried to change the orientation by placing Lincoln's views within the co nte xt of his concern for the rule of law and his belief that the revolutionary heritage of 1776 could only be secured through a respect for legal-constitutional institutions. " Collected Works, IV, 267-68. 17 The South had been denied no legal right in 1860, Lincoln insisted. No re- sponsible official had threatened to touch slavery in the slave states. The right of Southerners to hold property there (the only clear legal right they had over the slaves) was not in jeopardy. Furthermore, the secessionists were not, despite their protestations to the contrary, respecting the Constitution at all. They were rejecting the constitutionally established means of changing the results of an election-that is, winning the next election. At best, seces- sion was replacing the electoral process. At worst, bullets were replacing ballots. But secession was not a constitutional device and not a legal recourse. It was not law; it was "the essence of anarchy."!" Throughout the prewar era Lincoln had seen evidence that the ideals of the Amer- ican Revolution no longer enlisted the de- votion of his generation. Since the Kansas-Nebraksa Act and probably earlier, Lincoln had been reinforced in his belief, expressed in the 1838 Lyceum address, that the idealism of the generation of 1776 was fading. All that remained of that idealism was the nation's constitutional- legal institutions. And secession now mor- tally endangered those. Lincoln could not and would not allow those institutions to fall. And thus the war came-four long years fought, as Winston Churchill later would say, to the last desperate inch. You know the result-the principle of battle by ballot triumphed over battle by bullet. The idea that all men are created equal prevailed over the idea that some men have the right of winning their bread from the sweat of other men's faces. The nation was a little further on the road to securing for all people the rights to life, liberty, and the pursuit of happiness. The Constitution and the institutions it nurtured had triumphed. The principles of the Declara- tion were close to realization. That, after all, was why John Phillips of 1776 had voted for Abraham Lincoln in 1864.