Lincoln's Mentors

by Michael J. Gerhardt

  On the afternoon of New Year’s Day, Lincoln attended a reception at which he shook hands for more than three hours. Afterward, he invited several members of his Cabinet back to his office to watch him sign the ground-breaking Emancipation Proclamation. When he first tried, his hand trembled so badly that he set the pen down, because “all who examine the document hereafter will say, ‘He hesitated.’”84 Lincoln was determined not to have that happen. To those gathered, he said, “I never in my life felt more certain that I was doing right than I do in signing this paper.”85 He added, “If my name ever goes into history, it will be for this act, and my whole soul is in it.”86 He tried again, but his hand still trembled. “The South had fair warning,” he said as he looked at those assembled, “that if they did not return to their duty, I should strike at this pillar of their strength. The promise must now be kept, and I should never recall one word.”87 He then signed the proclamation without a tremor. “That will do,” he said.88 With the stroke of the pen, Lincoln had taken the biggest step ever taken to advance what he believed Jefferson and Clay had set in motion.

  In spite of the historical magnitude of what Lincoln had done, the press was much more focused on reporting the effects of Grant’s General Orders No. 11. Telegrams flooded the White House in protest, and two days after Lincoln signed the Emancipation Proclamation, he supposedly had a meeting on January 3, 1863, with Cesar Kaskel, a merchant from Paducah, Kentucky, and Congressman John Gurley of Ohio. In their presence, he is said to have immediately agreed to reverse Grant’s order. On that day, Halleck telegraphed Grant that “[a] paper purporting to be General Orders No. 11, issued by you December 17, has been presented here. By its terms, it expels all Jews from your department. If such an order has been issued, it be immediately revoked.”89 On January 7, Grant’s headquarters answered, “By direction of the General-in-Chief of the Army at Washington, the General Order from the Head Quarters expelling Jews from this Department is hereby revoked.”90 As he had done with Frémont and Cameron, Lincoln vigilantly enforced the chain of command. When outraged Jewish leaders met with Lincoln that same day, he reassured them that “to condemn a class is, to say the least, to wrong the good with the bad. I do not like to hear a class or nationality condemned on account of a few sinners.”91 On January 21, Halleck transmitted to Grant Lincoln’s reaction to his order: “The President has no objection to your expelling traders & Jew peddlars, which I suppose was the object of your order, but as it in terms Proscribed an entire religious class, some of whom are fighting in our ranks, the President deemed it necessary to revoke it.”92

  Luckily for Grant, Republican Elihu Washburne, his longtime supporter, was still a member of the House and still on Grant’s side. “Your order touching the Jews has kicked up quite a dust among the Israelites,” he wrote Grant.93 “They came here in crowds and gave an entirely false construction to the order.”94 Extolling Grant as “one of our best generals,” Washburne successfully got a House censure motion tabled by a narrow margin of 56–53.95 In the Senate, Republicans, sticking by the president and war effort, defeated a similar motion to censure Grant 30–7.

  While Lincoln did not share, at least in writing, any further thoughts about the connection between the proclamation and his reversal of Grant’s order, some things were clear. President Lincoln never spoke of it again after the censure effort died down, while Grant did only to express deep remorse over his order. We also know that in the frantic period from mid-December 1862 through the first few days of January 1863, Lincoln was deeply immersed in thinking about the legal and political ramifications of the ideal of equality as expressed in the Declaration of Independence and protected by the Constitution. We know, as well, that the actions Lincoln took during the winter of 1862 reconfigured the objective of the war. It was now the army’s task, with about seven thousand Jews and a growing number of African Americans in its ranks (eventually reaching more than 170,000), to finish the job of suppressing the rebellion against the ideal of equality that Clay had long extolled and Lincoln had been enforcing, culminating in the Emancipation Proclamation and revocation of Grant’s anti-Semitic order.

  V

  * * *

  It was hard for Lincoln to escape the gloom of war, but he tried. Having entered the presidency with acute awareness of the stakes involved in the days, weeks, and months ahead, Lincoln took time, when he could pull himself away, to do things that had always helped to keep him steady and buoyant.

  Two episodes illustrate how he used humor to lighten spirits. As his Cabinet members walked into his office for the meeting at which he first sprang the news of his planned emancipation proclamation, Stanton recalled that they found the President

  reading a book of some kind, which seemed to amuse him. It was a little book. He finally turned to us and said: “Gentlemen, did you ever read anything by Artemus Ward? Let me read you a chapter that is very funny.” Not a member of the cabinet smiled; as for myself, I was angry, and looked to see what the President meant. It seemed like buffoonery to me. He, however, concluded to read a chapter from Artemus Ward, which he did with great deliberation, and, having finished, laughed heartily, without a member of the Cabinet joining in the laughter. “Well,” he said, “let’s have another chapter,” and he read another chapter, to our great astonishment. I was considering whether I should rise and leave the meeting abruptly, when he threw his book, heaved a sigh, and said: “Gentlemen, why don’t you laugh? With the fearful strain that is upon me, day and night, if I did not laugh I should die, and you need this medicine as much as I do.”96

  Later that year, on July 24, Martin Van Buren passed away. Lincoln had said nothing when Jackson and Polk had died, but this was different. Lincoln was now president and thus felt obliged to express gratitude for another president’s distinguished career, especially one who, like Van Buren, had defended the Union to his last breath. More important, Lincoln had met Van Buren—indeed, he was the first president Lincoln met. A little more than a year after leaving office, Van Buren planned to visit Democrats in Springfield on June 14, 1842, but he got stuck in Rochester, Illinois. When “the leading Democrats” in Springfield learned he was delayed there, they “hurried out to meet the distinguished visitor.”97 As Herndon wrote years later about the meeting, “Knowing accommodations at Rochester were not intended for, or suited to the entertainment of an ex-President, they took with them refreshments in quantity and variety, to make up for all the deficiencies.” They also brought with them their state representative, Abraham Lincoln, “whose wit was as ready as his store of anecdotes was exhaustless.” Lincoln, then in his last term in the Illinois legislature, dressed in his haphazard way, towered over the short Van Buren, dressed as dandily as ever. Throughout the evening, Lincoln had “a constant supply (of stories), one following another in rapid succession, each more irresistible than its predecessor.” Van Buren had his own anecdotes about politics in New York when he was a young man and his early interactions with the likes of Alexander Hamilton and Aaron Burr. The laughter lasted late into the evening, when Van Buren excused himself “because his sides were sore from laughing.”98 Later, he said he had never “spent so agreeable a night in my life.”99

  Lincoln did not forget that evening either. Nor did he forget that, in 1860, Van Buren had cast aside party loyalty and voted for him as president, in the hope that the election could avert civil war. It did not, but Van Buren kept looking for ways to help keep the Union intact until he fell ill for the last time. “[Out] of tribute to their friendship and respect to a former president,” particularly one who stood by the Union, Lincoln “ordered a special military salute in Van Buren’s honor.”100 As Lincoln had told young lawyers many years before in Springfield, a foe can become a friend. Indeed, they could come from the unlikeliest places, even among those closest to Jackson, Henry Clay’s greatest foe.

  VI

  * * *

  Democratic appointees had dominated the Supreme Court for nearly all of Lincoln’s professional life. Ja
ckson had made five appointments to the nine-member Court, while the three Whig presidents—Harrison, Taylor, and Fillmore—together had managed to make only one. Adding insult to injury, Fillmore’s appointee, Benjamin Curtis, left the Court to protest Dred Scott and had his seat filled by Buchanan.

  No president other than George Washington had as many vacancies to fill in as short a time as Lincoln did: Washington appointed ten justices (including one recess appointment), all of whom were strongly committed to the Constitution and the Federalist vision of a strong national government. Jackson’s five appointees transformed the Court to become more protective of private property and state autonomy from federal dominance, but their installments had stretched out over a much longer period than it took Lincoln. Within fifty-two days of taking the oath of office as president, Lincoln had three vacancies on the Court to fill, and he got a fourth in his second year in office. Lincoln had even come into office with a vacancy to fill; one seat had been open since Justice Peter Daniel died nearly one year to the day before Lincoln’s inauguration, and the Senate had not allowed Buchanan to fill it. A second opened when Justice John McLean died during Lincoln’s first month in office; and the third seat became vacant less than a month after McLean died, when Justice John Campbell, appointed by Pierce, left the Court to return to his home state of Alabama to join the Confederacy. With solid Republican majorities in both the House and Senate, Congress took the unprecedented step in 1862 of adding a seat to the Court to enable Lincoln to increase his influence.

  Lincoln did not, however, move quickly to make the appointments. Facing several court actions against the war, Lincoln sought justices who strongly supported the war effort and therefore would be disposed to uphold the constitutionality of what he had done to save the Union. Lincoln followed Congress’s preferences in filling two of the seats because of his long-standing belief as a Whig in deferring to that body and because he knew the Senate was likely to use the same criteria as he in filling the seats. For the other two, he did what Jackson had done: he used the appointments to reward political allies and fortify his base.

  Initially, Lincoln focused on filling McClean’s seat, perhaps because it was the easiest. At that time, Congress had divided the federal courts system into several circuits, and it configured the Supreme Court so that its seats were aligned with those circuits. Supreme Court seats therefore had geographical requirements, and because McClean came from Ohio, Lincoln looked to Ohio for his replacement. Lincoln was happy to do this, because he owed Ohio Republicans for their vital third-ballot support at the Republican national convention in 1860. The Ohio congressional delegation was already lobbying Lincoln hard to appoint Ohio lawyer Noah Swayne. Indeed, before he died, McClean had recommended that Lincoln appoint Swayne to replace him. Lincoln was impressed with Swayne as an abolitionist; he had freed his slaves and moved from Virginia to Ohio in protest over Virginia’s strong support for slavery. Swayne’s Virginia ancestry probably would have appeal to the border states, as would the fact that Jackson had appointed him to serve as the U.S. attorney in Ohio. Lincoln also liked the fact that Swayne had served in both chambers of the Ohio legislature. Three days after Lincoln nominated Swayne, the Senate confirmed him by the overwhelming vote of 38–1.

  Lincoln turned his attention next to the seat that had been vacated due to Peter Daniel’s death. Daniel came from Virginia, which Lincoln felt no need to appease, especially with a seat on the Supreme Court. Instead, he deferred almost completely to Congress. Indeed, the lobbying done by members of Congress and Western political leaders to fill the seat was unprecedented. Western governors, Iowa’s attorney general, and the entire Iowa Supreme Court all favored Iowa’s most distinguished lawyer, Samuel Freeman Miller. Moreover, 129 of 140 House members and all but 4 senators petitioned Lincoln to appoint Miller. No one from Iowa or born west of the Appalachian Mountains had ever been appointed before the Court, and Miller’s credentials were impeccable—a native of Kentucky, he had studied medicine at Transylvania University in Lexington, which Lincoln knew well as the alma mater of his father-in law. Miller had been a physician for a dozen years before he earned his law degree. He’d left Kentucky for Iowa in protest over slavery and been one of the first and most prominent Republicans there, and he had done everything a lawyer could do in his community, state, and region in a distinguished practice. Within thirty minutes of Miller’s nomination to the Court, the Senate unanimously confirmed him.

  This left the fourth Supreme Court vacancy to fill. Lincoln felt no more need to appease the South in filling Campbell’s vacated seat than he had in filling Daniel’s. Free to do as he pleased, he very quickly narrowed his choice down to two people, his old friend and state judge David Davis and Orville Browning. Both had been precluded from consideration for the initial vacancy for circuit reasons and for the second after Lincoln decided it should go to someone from the far Western states. Both Davis and Browning wanted the seat desperately, and each lined up considerable support to strongly lobby Lincoln. On April 9, 1862, Browning had written sheepishly asking for the appointment, but his wife wrote soon thereafter to press his case harder. Lincoln understood Browning’s confirmation might have been easier than Davis’s because other senators tended to support one of their own when nominated to the Cabinet or other offices. But Lincoln did not relish losing Browning to the Court. He also appreciated that Davis’s constitutional views were more in line with his own than Browning’s were. Lincoln wanted to please them both, and at one point he considered appointing Davis to the Cabinet and Browning to the Court. It was a difficult choice, as reflected in the fact that Lincoln left the seat vacant for more than a year as he decided what to do.

  After Lincoln’s death, Herndon shared a note that he said Lincoln had written during the year when he considering whom to appoint to take Campbell’s seat on the Court, confessing, “I do not know what I may do when the time comes, but there has never been a day when if I had to act I should not have appointed Browning.”101 So why did Lincoln not choose Browning for the Court? Herndon suggests that there was a crucial turn of events when Lincoln’s friend Leonard Swett met with Lincoln in August 1861 to discuss the appointment. Swett had pushed Lincoln in writing to make the appointment, but he supposedly told Lincoln that “he could kill ‘two birds with one stone’ by appointing Davis.”102 Believing Lincoln owed him and other supporters in Illinois a favor for their support, Swett explained that he “would accept [the appointment of Davis] as one-half for me and one-half for the Judge; and that thereafter: If I or any of my friends ever troubled him, [Lincoln] could draw [Swett’s] letter as” proof he made the appointment to pay Swett back for his support.103 Swett said Lincoln nodded in agreement and responded, after some thought, “If you mean that among friends as [the letter given to him by Swett] reads I will take it and make the appointment.”104 Swett later said that the meeting was the decisive moment sealing Davis’s appointment.

  The fact that at least a year went by after the meeting before Lincoln actually made the appointment weakens Swett’s claim. Browning enjoyed strong support in the Senate, and he had other prominent political leaders backing him, including Attorney General Edward Bates. In March 1862, Noah Swayne told Bates of a rumor going around that Caleb Smith, the secretary of the interior, might get the open seat, but Bates said he did not believe that it would interfere with Browning’s being nominated to the Court. Later that same day, Bates wrote in his diary, “Nobody [I] think objects to Browning—He is a proper man.”105 Nevertheless, throughout this same time, Davis’s friends were flooding Lincoln with letters hailing him, Lincoln’s former partner Stephen Logan among them. John Todd Stuart wrote to Lincoln that the appointment would be especially “pleasing to the circle of your old personal friends.”106 As it was, the numbers of supporters pushing for Davis exceeded those pushing for Browning. In the longest letter Lincoln ever received on the question of which person to choose, a Bloomington, Illinois, Republican told Lincoln that the public favored Davis, bu
t beyond that, fairness demanded that Lincoln appoint Davis because of the large political debt Lincoln owed him, and because the public would question Lincoln’s generosity and benevolence if he did not appoint him. Davis had obviously done more to get Lincoln elected than Browning, and he had made it crystal clear that nothing but appointment to the Supreme Court would satisfy him. Lincoln also knew, as Stuart and Joseph Medill had stressed to him, that as someone who had been a highly respected judge, Davis had a temperament better suited for appointment to the Court. Lincoln did not need reminding that Browning was mercurial.

  Davis was not perfect. He was a hard-core partisan who complained Lincoln did not listen to him enough. This time, however, Lincoln listened. On December 8, 1862, he nominated Davis to the Supreme Court. Later that day, the Senate confirmed him.

  Losing the nomination was hard for Browning, and the month got more difficult for him. He had lost his Senate seat when Democrats, in control of the Illinois state legislature, chose to replace him with William Richardson, a former House member, longtime friend of Lincoln and Browning, and campaign manager for Douglas during the 1856 and 1860 Democratic presidential nominating conventions. As Browning looked back at the past few months, he confided in his diary, “The counsels of myself and those who sympathize with me are no longer heeded. I am despondent, and have but little hope left for the Republic.”107