Lincoln's Mentors

by Michael J. Gerhardt

  VI

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  Before the special session of Congress began on July 4, 1861, Lincoln made one of the most controversial decisions of his presidency. On April 27, he suspended the writ of habeas corpus to give military authorities the power to jail anyone without due process whom they deemed to be a traitor or who was stirring rebellion between Washington and Philadelphia. The decision provoked a confrontation between Lincoln and Jackson’s old friend, Roger Taney, the chief justice who had sworn Lincoln into office. Ironically, here too, Lincoln’s model was Jackson.

  Maryland was the problem. It was split over whether to secede or to help the Union, particularly whether to assist, even indirectly, with fortifying the capital. At the April 15 meeting with the delegation from Baltimore, President Lincoln did more than refuse to agree to their pleas that he prohibit his troops from moving anywhere through Maryland.113 With Welles taking notes, Lincoln explained further, “Our men are not moles, and can’t dig under the earth; they are not birds, and can’t fly through the air. . . . Go home and tell your people that if they will not attack us, we will not attack them; but if they do attack us, we will return it, and that severely.”114

  The situation quickly worsened, as Marylanders destroyed railroad bridges and cut telegraph lines linking Maryland to the North. On April 25, reinforcements finally arrived in Washington, but Maryland remained a hotbed of Confederate sympathizers, who impeded federal troops and encouraged interference with their operations.

  Unrestricted by habeas corpus, federal authorities, led by General George Cadwallader, promptly imprisoned a man named John Merryman for recruiting, leading, and training a drill company in Maryland in service of the Confederacy. Lincoln had yet to ask Congress to declare war but instead to treat those joining or helping the rebellion as traitors, the same way Taylor and Fillmore had regarded forces rebelling against federal authority.

  Imprisoned in Fort Henry in Baltimore, Merryman directly appealed to Chief Justice Roger Taney for a writ of habeas corpus. (Because Taney also sat as a U.S. Circuit Judge in Maryland, the petition came directly to him.) The writ would have required Merryman’s jailer to come before Taney to explain Merryman’s confinement. But when the chief justice ordered the writ to be delivered to General Cadwallader for an answer, the general ignored it. Incensed by Cadwallader’s insolence, Taney granted the writ and issued an opinion explaining his reasoning and denouncing Lincoln’s actions as unconstitutional. Taney stated that only Congress had the power to suspend the writ and rejected Lincoln’s argument that he had the authority to suspend habeas corpus while Congress was in recess. Taney did not directly order Lincoln or anyone in his administration to release Merryman, making it easier for Lincoln to ignore Taney’s opinion. Besides having questioned the legitimacy of Taney’s Dred Scott decision, he was now open to the charge of flouting the Constitution and Taney’s authority.

  Yet the precedent for suspending habeas corpus and ignoring Taney’s decision came from Andrew Jackson. After victories over the British in Mobile, Alabama, Major General Jackson directed his forces to head off the British army before it could take New Orleans. Arriving before the British, Jackson declared martial law on December 14, 1814. Over the next few months, he imposed a curfew, censored a newspaper, came close to executing two deserters, arrested a hundred soldiers for mutiny and desertion, banished Frenchmen newly naturalized as American citizens, ignored the Louisiana governor’s order to stand down, and jailed a congressman, a federal judge, and the federal district attorney. When he was confronted with a writ of habeas corpus, he ignored it. Even though the Supreme Court had declared not long before that only Congress had the authority to suspend the writ of habeas corpus, Jackson decided, on his own initiative, to suspend it.

  When news finally reached Jackson that a peace treaty had been signed to end the hostilities, he relented and grudgingly lifted his order of martial law. After he was released, John Dick, the federal district attorney, demanded that Jackson be brought before the federal judge, Dominick Hall, to explain himself. When Jackson appeared before Judge Hall, he refused to answer any of his questions. Judge Hall found Jackson in contempt of court and fined him $1,000.

  It was not in Jackson’s nature to forget any slight—in this case, the fine. Nor did he forget how Henry Clay had opposed any efforts in Congress to erase the fine. Jackson never gave up trying to have the fine wiped from his record. After leaving the presidency, he got Polk’s help to expunge the fine once and for all. Shortly before he died, he asked Congress to reimburse the fine. On January 8, 1844, Congress, on the twenty-ninth anniversary of the Battle of New Orleans, agreed.

  There was no mention of Jackson’s declaration of martial law in George Prentice’s 1831 biography of Clay, for Clay was out of the country at the time as a member of the presidential commission charged with negotiating the Treaty of Ghent, which ended the War of 1812. But Lincoln must have known about Congress’s indemnifying the fine, since he was eyeing a run for the House as early as 1844 and discussion of the reimbursement was one of the most heated debates of the time.

  There was also the 1832 Supreme Court opinion, written by Chief Justice John Marshall, that invalidated a Georgia criminal statute that prohibited non–Native Americans from being present on Native American lands without a license from the state of Georgia. Marshall explained that the statute was unconstitutional because only the federal government had the authority to interact with Native American tribes. Jackson is said to have responded, “John Marshall has made the decision, now let him enforce it.”115 Although the comment is probably apocryphal, both Jackson and the State of Georgia ignored the decision.

  Marshall had not addressed any order directly to either Jackson or the State of Georgia, even though the State of Georgia was holding three missionaries in its prison for having violated the state statute. Rather than abide by the decision, Georgia authorities pressed the federal government to remove the Cherokees from the land that the state was trying to regulate on its own terms. If Jackson did not enforce the Court’s decision, none of the missionaries would be released. Though the missionaries were released a year later, Jackson did nothing in the interim. Having lived among diehard Democrats for decades, Lincoln likely often heard praise for Jackson’s defiance of the Court’s order in 1832. Lincoln was even more familiar with Jackson’s veto of the national bank, which rejected any obligation on the president’s part to follow the Supreme Court’s earlier decision upholding the national bank’s constitutionality.

  By the time Lincoln was president, there was no question he knew of Jackson’s actions and approved of them. In an address to Congress on July 4, 1861, and in his first Annual Message delivered at the end of the year, he asked the same rhetorical question, “Are all the laws, but one, to go unexecuted, and the government itself to go to pieces lest that one be violated?”116 He answered the question the same way in both, by citing the only precedent he thought was relevant—the 1844 refund demonstrating Congress’s approval of Jackson’s declaration of martial law, including his suspension of habeas corpus.

  Throughout the remainder of 1861, Congress debated but never reached consensus on the conditions required for the suspension of habeas corpus, and Lincoln felt compelled further to suspend the writ on the Florida coast and in the area between New York and Philadelphia. In the meantime, Henry May, who had been elected as a Democratic representative to the House from Maryland in the 1850s, returned to the House in 1861 as a member of the newly formed Unionist Party, which was made up of former Whigs who wanted to stop the movement toward secession over the issue of slavery.

  After the special session of Congress that Lincoln had called, May was taken into custody, without charges or recourse to habeas, on suspicion of treason. His crime was strongly objecting to Lincoln’s war policies. Eventually, May was released, and in December 1861, he returned to his seat in the House, where he sponsored a bill that would have made it impossible for someone charged with a federal offense to be
incarcerated pending trial and conviction. In 1863, the Senate approved a law incorporating May’s bill, which became known as the 1863 Habeas Corpus Suspension Act. President Lincoln signed the act into law, which effectively ratified his suspension of habeas corpus. As Jackson had done, Lincoln had found a way for Congress to vindicate his actions.

  VII

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  Stephen Douglas had done everything he could to fight secession and the prospect of war. While Lincoln remained silent in public during the 1861 presidential campaign, Douglas did not. Knowing he would lose the general election, Douglas did what he could do to preserve the Union, campaigning vigorously, particularly in the South, denouncing secession, and urging reconciliation and compromise everywhere he went. (He was spending the night in Mobile, Alabama, when he received the news that he had won only a single state in the election, while other Democratic candidates had won fourteen, and Lincoln had won with eighteen states and a majority in the Electoral College.) Shortly after the election, Douglas met with Lincoln and pledged his support to his success and preservation of the Union. On Inauguration Day, he dramatically stepped forward to hold Lincoln’s hat and cane while Lincoln read his Inaugural Address. With Lincoln’s knowledge and gratitude, Douglas traveled widely throughout the spring and early summer of 1861 to rally support among conservatives for maintaining the Union, but on the Southern portion of his trip he contracted typhoid fever, and on June 3, 1861, Douglas died in the arms of his wife. Upon hearing the news, Lincoln told those around him that he and Douglas “are about the best friends in the world” and then, in a rare display of emotion, burst into tears.117 The two men had known each other—and battled each other—for three decades. The only public statement from the administration came from Simon Cameron, who had known Douglas for years as a colleague in the Senate. In a rare moment of leadership of the War Department, Cameron issued a circular to be distributed throughout the Union Army announcing “the death of a great statesman, [a] man who had nobly discarded party for his country.”118 The Little Giant was forty-eight years old.

  The vacancy in the Senate opened up an opportunity that Lincoln quickly seized. With the Illinois legislature in recess, the state’s Republican governor, Richard Yates, in consultation with Lincoln, made the appointment of Orville Browning on June 12, 1861, to take Douglas’s seat. In early July, Lincoln’s spirits visibly lifted when Browning arrived. Senator Trumbull presented Browning’s credentials to the Senate, and in his first act as a senator, Browning joined his new colleagues in eulogizing Douglas. He emphasized the fact that Douglas had “placed patriotism above partisanship.”119

  In characteristic fashion, Lincoln unburdened himself to Browning. Browning did not hesitate to speak his mind, though the two did not always agree. Well before Browning arrived in person in July, he had written to the president, on March 26, saying, “You should not permit your time to be consumed, and your energies exhausted by personal applications for office.”120 Lincoln demurred: “I must see them.”121 Yet Lincoln was happy to see Browning, upon his return to Washington, sharing the news that “The plan succeeded.” According to Browning, Lincoln explained, “They attacked Sumter—it fell and thus, did more service than it otherwise could.”122

  Upon Fox’s return from South Carolina, Lincoln appointed him an assistant secretary of the navy and consoled him, “You and I both anticipated that the cause of the country would be advanced by making the attempt to provision Fort Sumter, even if it should fail; and it is no small consolation now to feel that our anticipation is justified by the result.”123 During the special war session, Lincoln told Congress the same thing: “No choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation.”124 Perhaps Lincoln was trying to make the best of a bad situation, to control the narrative as best he could, or to show that he had not followed Polk’s haste in making war. In any event, both the fact that South had fired the first shot and the perception of the Union’s needing to use force to defend itself against the South’s aggression broadened Lincoln’s public support in the critical early days of the Civil War.

  Nicolay recalled that Browning and Lincoln conversed daily in the White House and frequently rode and dined together, sometimes in the company of Lincoln’s wife and family. Browning was more than a friend—he knew what Lincoln needed to become his best. Over the next year and a half until the end of Browning’s Senate term in January 1863, no senator visited the White House more than he did. He became Lincoln’s “eyes and ears” and leading spokesman in the Senate.125 It was good to have someone to confide in, especially as Lincoln could not have imagined the challenges that were about to beset his family and the growing conflicts that he had to address with the Cabinet, Supreme Court, Republican Party, and Congress as well as on the bloody battlefields in the South.

  Chapter Seven

  Commander in Chief

  (1861–1864)

  Of the nation’s first sixteen presidents, Abraham Lincoln had nearly the least military experience. Only two—John Quincy Adams and Martin Van Buren—had less: each had none. Lincoln’s brief experience fighting mosquitoes in the Black Hawk War could hardly match the experience and know-how of the legendary generals Washington, Jackson, and Taylor. Aside from the presidents who, in office had directed or prior to taking office, ordered the slaughter of Native Americans—Washington, Jackson, Harrison, and Taylor, among them—James Madison was the only president before Lincoln to serve as commander in chief in a war on American soil, but his fleeing the White House in 1814 to escape the invading British soldiers, who torched the place in retaliation for the U.S. invasion of Ontario two years before, hardly set the example of the kind of commander Lincoln needed to be.

  Lincoln had the complicated example of Polk’s management—or as he saw it, the mismanagement—of the Mexican War. He had criticized Polk for his lies in starting the war, his poor relations with Congress during the war, and especially his refusal to share information about the war with Congress, based on “the important principle, always heretofore held sacred by my predecessors,” to decline congressional requests for internal executive branch documents.1 Polk cited Washington as a precedent for his defiance, but John Quincy Adams, with Lincoln sitting nearby, had thundered on the House floor, “Although the very memory of Washington, by everybody in this country, at this time (and by none more than myself), is reverenced next to worship—the President was wrong in that particular instance, and went too far to deny the power of the House; and as to his reasons, I never thought they were sufficient in that case.” The case involved the Jay Treaty (forged in 1795 to avert further war with England, settle debts, and provide a framework for peaceful relations), and Adams noted that friend and foe alike in Congress opposed Washington’s refusal to release documents.2

  In Congress, Lincoln never seriously objected to Polk’s vigorous use of his war powers once the conflict had begun, even though Polk had battled with his two Whig generals, Taylor and Scott. Moreover, Democrats were at the top of Lincoln’s list when appointing generals and other officers at the start of the war, among them John McClernand, who had served with Lincoln in Congress and been an outspoken critic of the Wilmot Proviso; Benjamin Butler, who had supported Jefferson Davis for the Democratic nomination for president in 1860; and John Dix, who had served as Buchanan’s secretary of the Treasury. As president, “Lincoln never accused Democratic generals of sabotaging the war effort. Polk rarely mentioned Taylor and Scott without making such an accusation.”3 Though some Democrats were disasters in the field, Lincoln’s appointments pleased their constituents.

  The war was not the only thing Lincoln confronted in these tense years, just the most important. Not only were he and his army fighting to save the Union, but he and Congress were also refashioning America, just as Clay had envisioned it. In signing legislation authorizing two companies to build a transcontinental railroad to link East to West, Lincoln was effectuating
a central component of Clay’s American System, reassuring former Whigs and others in the mainstream that Clay’s dream was still alive. He reshaped the Supreme Court, as only George Washington and Andrew Jackson had done before him. In repeatedly clarifying the objectives of the war, Lincoln did the opposite of what Polk had done in obscuring the reasons for the Mexican War. Lincoln revised the objectives several times, finally settling on the abolition of slavery as instrumental to maintaining the Union.

  I

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  Shortly after the war began, Lincoln told his personal secretary John Hay that “the central idea pervading this struggle is the necessity that is upon us, of proving that popular government is not an absurdity. We must settle this question now, whether in a free government the minority have the right to break up the government whenever they choose.”4 Secession “is the essence of anarchy,” he echoed Jackson and Clay on another occasion, “for if one state may secede, then others could claim the same entitlement until no government and no nation were left.”5 In his war message to Congress in July 1861 as well as his Annual Message delivered at the end of that same year, Lincoln made clear that the objective of the war was no less than to preserve the way of life of the United States. “This is essentially a people’s contest. On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start, and a fair chance in the race of life.”6