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Lincoln and the Democrats The Politics of Opposition in the Civil War
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Introduction

This is a book about the way a two-party system works during war. It will not present a very pretty picture, but it offers reassurance in a way. Although the political parties do not show to great advantage in a wartime crisis, they are saved from themselves by other sound parts of the American system: the Constitution itself and the eager community spirit of the people working in areas assumed to be beyond the boundaries of partisanship. To express it another way, this book describes in uncompromising terms the strange behavior of a two-party system in war. To be sure, I am dealing with only one war, the Civil War. Looking at it, one is first compelled to ask whether partisanship drives one party to the brink of disloyalty and the other, the one in power, to flirt with tyranny. During the Civil War, in rhetoric, yes, but most definitely not in reality. The opposition was loyal – but not at all helpful, upbeat, or cheering. The essentials of the war were left to forces outside that partisan system. Mobilization, finance, and even provisions for the care of the sick and wounded were nonpartisan matters. Indeed, that is why they worked. Their essential wheels were not impeded by partisan gridlock. Meanwhile, the politicians fulminated in Congress and on the stump. The party system survived the war but not because it was any good at war. It survived, first, because the Constitution is good at war, and second, by virtue of the energy, esprit, community effort, and good-will of the nonpartisan sector. In short, the two-party system – both parties in it – behaved very badly and turned in an unimpressive performance, only to be saved by nonpartisan behavior in local communities and the private sector and occasionally by bipartisanship. Both political parties behaved with wild-eyed ill-will. But the system survived, unscathed. The lesson of 1 Downloaded from https://www.cambridge.org/core. University of Sussex Library, on 01 May 2019 at 10:41:40, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139567213.001

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the great American Civil War is that we need not worry, though it might look very worrisome at the time. This is my last book on the Civil War, and I decided to give the Democrats equal time in it. There is no understanding the performance of the two-party system in the war without examining both parties in it, and the Democrats are poorly understood. Laboring under the great shadow of Abraham Lincoln, they have been consistently misinterpreted and, more often, simply ignored, dismissed from serious consideration because of their partisanship, and more recently, because of their racism. Our modern understanding of the workings of partisanship and racism in the period does not fully explain the Democratic party. Whatever may have been their roles before and after the war, partisanship did not enter into everything, and racism does not explain everything.1 They explain a lot, and they are highly visible to the modern eye. And to deny their sovereign explanatory power is not to deny their presence, pernicious effects, and persistence through the era. I am not a denier. Racism was an attitude that marked the period indelibly, ruining lives and shaping politics in hideous ways. But there is a difference between racism as social attitude and racism as historical explanation. As social attitude, it was nearly universal among white people at the time. As historical explanation, it has its limits. This book probes those limits, in part by exploring the sharp differences between racist factions in the Democratic party during the Civil War. Likewise, the noisy and unforgiving partisanship of the Republicans and Democrats in the period is nearly deafening. It causes us not to hear other quieter forces at work – among them, at a critical local level, a nonpartisan spirit of civic-mindedness or boosterism that got things done: that got soldiers enlisted into the army, that got government bonds sold to pay for the war, and that raised money and supplies for the legions of sick and wounded. Political partisanship in times of war had its boundaries. Racism had few boundaries among white Americans in war or peace, but its intensity of political expression varied. It was not a monolith and cannot serve as a sweeping excuse to dismiss historical interest in the Democratic party in the period. There were differences among racists. During the Civil War systematic, single-minded, and aggressive “white supremacists” like John H. Van Evrie, editor of New York City’s Caucasian 1

 See William E. Gienapp, “‘Politics Seems to Enter into Everything’: Political Culture in the North, 1840–1860,” in Stephen E. Maizlish and John J. Kushma, eds., Essays in Antebellum American Politics, 1840–1860 (College Station: Texas A & M University Press, 1982), 15–69.

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Introduction

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newspaper, were bitterly frustrated by their insignificant role in the party. Van Evrie, the man who coined the very term “white supremacy,” was so bitter about his neglect that he urged nomination of Jefferson Davis as the Democratic candidate for president in 1864. Obviously, racism did not push most other Democrats to quite such an extreme political position. Racism as a political force was different at different times. It was much more powerful and pernicious when the white Southern voters returned to the Union after 1865. The Democratic party, for the brief period of war when it suffered through life as a nearly hopeless minority party without the Southerners, was somewhat altered. The Civil War Democratic party exploited racism, but it was not yet the party of white supremacy of which John H. Van Evrie dreamed. Despite many assertions to the contrary by modern historians, to elevate white supremacy foremost among the party’s values and attitudes required the aggressive racism of the white Southern voters. For the brief time studied here, they were gone. With Reconstruction, white supremacy would become more dominant in Democratic party councils, but during the Civil War, the party pursued more diffuse avenues to wrest political victory from very unpromising electoral realities. In truth, the Democratic party saw itself during the war not as crusading for white supremacy but as struggling simply for self-preservation. The split in the party in 1860, the loss of the presidential election that year, and then the Lincoln administration’s restrictions on civil liberties during the war worried the Democrats. They fought desperately to retain party identity and coherent organization. The Republicans, Lincoln included, briefly relaxed their accustomed partisanship early in the war, under a vague but widely held assumption that political parties had no role in wartime, but the Democrats increased theirs, rallying the voters with myths and memories of bygone days. In other words, the Democrats in the Civil War era invented a party myth, claiming immortality for their organization into the future and a largely fictional history that reached back to Thomas Jefferson. As Van Evrie scoffed at the time, they sometimes dated the party’s history back to the Flood. In the end, it was as though the Democracy, as the party was called in those days, were a nation to which voters owed an emotional allegiance not much connected to any program. Along the way, the party tragically lost interest in its real history of special concern for the poor and working classes, and muted its appeal to recent immigrants. It also jettisoned the now inconvenient compact theory of the Constitution devised by Thomas Jefferson

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in the Kentucky Resolutions in 1798. Party identity was more a matter of emotional recollection of organizational memories. What Democrats believed in at the time was the Democratic party. The Democratic party in its reluctant role as the “loyal opposition” is a major focus here, and the book starts from the bedrock of loyalty to the Union on the part of the Northern Democratic party. Despite impressions to the contrary, in the dozens and dozens of electoral contests for governor held throughout the war, the Democrats nominated only one Peace Democrat for governor because he stood for peace. The peace wing of the party was noisy, and the dominant war wing, anxious about the Democrats’ painfully obvious minority status, granted the peace men too much, most notably in the disastrous national party platform of 1864. It will be clear in this book that such a move was unnecessary and that the threat of the peace wing has been magnified as much as threefold above its real strength, partly through Republican fear-mongering and partly through Democratic missteps and misjudgments. Far from fielding a bevy of obnoxious and unrepresentative peace advocates as candidates for office, the Democrats favored moderate, even bland, candidates, such as the presidential contenders of 1864: the colorless legalist, Horatio Seymour of New York, and George B. McClellan, whose political ideas would not fill a thimble and were so negligible that no one has ever written a political biography of him – and likely never will. We see Abraham Lincoln in this book, against a backdrop of loyal opposition, not Copperhead subversion and conspiracy. Indeed, he placed his faith so firmly in the essential loyalty of the Democrats that he paid no attention at all to their surprisingly determined attempts to rally their organization for the off-year elections in 1862. The consequences of that uncharacteristic lack of attention to politics were nearly disastrous. The Republicans lost too many seats in Congress in that electoral debacle to maintain a relaxed political posture afterward, and Lincoln and the party decidedly turned politics around with intensified partisanship in 1863 and 1864. The fact remains that, like the Whig party in the Mexican–American War, the Democratic party in the Civil War was basically loyal. And like the Whig party before it, the Democratic party during the Civil War was not at all cheering. They were annoying – often deliberately so, but such had always been the role of opposition political parties in American wars. The Democrats did not mean to be likeable; they were just loyal. Historians have found the Civil War Democrats generally repellant ever since, and never more so than in the current century when historians

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Introduction

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spare little attention for them and less sympathy. It would be better to think of them as soldiers who were enlisted in the ranks, who nonetheless grumbled all the time and hated their officers, but who never mutinied. This book is concerned mainly with political history in its oldfashioned preoccupations: elections and voting, candidates, platforms, and the party press. It is not as concerned with the softer, modern categories of political analysis such as political culture or power relationships. Fundamental in these pages as both source and subject is the political newspaper of the nineteenth-century party system. No one can read such papers for very long without coming away with a distinct impression that Americans of that time were much preoccupied with elections and voting, with candidates and platforms, and with their party newspapers. I read 39 of them – 24 Democratic, 13 Republican, and 2 independent. Among those were 28 Pennsylvania newspapers – 19 Democratic, 8 Republican, and 1 independent. Pennsylvania was a crucial state in all national electoral calculations during the Civil War, and I have focused particular attention on it for examples of political behavior. Although this book is about politics, two chapters are devoted to constitutional history. That is not an anomaly. Constitutional history in that era was just another branch of politics.2 Commonly, we see constitutional history set aside in historical writing, for special treatment in separate books, but that is a mistake – one I have made myself and regret. It belongs in the same book with the rest of political history. The most basic and clearly delineated parts of the Constitution – the length of the presidential term, the president’s designation as commanderin-chief, the length of terms in Congress, the representational scheme, for example – went unquestioned and worked to their accustomed ends throughout the war. In fact, some of those provisions insured the victory of the North in the war. The parties certainly did not. Other parts of the Constitution came to be regarded as political footballs. There was much constitutional debate and controversy, but historians have been making a mistake in attempting to make sense of the constitutional discourse of the Civil War. What is most notable about it is how little sense most of it made. The fundamental truth of constitutional history in the period is that amending the Constitution in the midst of a civil war was simply impossible. How could it be done when three-fourths of the states were needed for ratification, and more than a fourth of them were in the Confederacy? 2

 This is like the journalism of the era, as brilliantly described in Michael Schudson, The Good Citizen: A History of American Civic Life (New York: Free Press, 1998), esp. p. 121.

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What states were going to be counted? Why even discuss the matter? It was an intractable problem, like squaring the circle. It simply defied reality to consider fundamental constitutional amendment. Had the enemies been capable of constitutional compromise and amendment, then there would have been no civil war in the first place. Yet both parties championed constitutional amendments and conventions to settle sectional issues throughout the Civil War. The history of constitutional conflict in American wars, at least through 1865, demonstrates that war induces a near constitutional madness in political leaders.3 That was conspicuously true of the notorious Hartford Convention of 1814, which proposed some of the most provincial, backward-looking, and absurd amendments in all of American history in the midst of the desperate War of 1812. In the Civil War some fifty years later, the idea of amending the Constitution or holding a convention of the states became a playground of political grandstanding and noise-making. The situation in the Civil War proved madder even than that of the War of 1812.4 On the other hand, the Thirteenth Amendment ending slavery is a deservedly hallowed product of Civil War constitutional history, but it only passed Congress to be sent to the states for ratification when the end of the war was clearly in sight. Ratification was complete only on December 18, 1865, months after the war’s conclusion. Predictable as the wayward course of constitutional discourse was in the history of the war, there was nevertheless an unpredictable and surprising constitutional turn in the Lincoln administration, and particularly in the constitutional ideas of Lincoln himself: the rise of human rights. President Lincoln for his part did not borrow his ideas from apologists for the use of government power. The president’s own constitutional ideas, temporarily sidetracked from their antebellum libertarian purpose by the South’s shocking majority embrace of secession, soon got back on track. And when they did, he was not looking forward to more government power and the expansion of the importance of the national 3

 See for example Samuel Eliot Morison on “Crazy Jack” Lowell’s plan, devised in the midst of the War of 1812 and published in an anonymous pamphlet, for a new constitution for the Union to be drafted by a New England constitutional convention and to be submitted afterward for ratification to only the original thirteen states, in “Dissent in the War of 1812,” in Morison, Frederick Merk, and Frank Freidel, Dissent in Three American Wars (Cambridge, Mass.: Harvard University Press, 1970), 20–26. 4  President James Madison waited until the War of 1812 was settled by peace treaty before proposing a constitutional amendment that seemed to be necessitated by the United States’s unhappy experience in the war: to allow the creation of a national bank.

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Introduction

7

state, but, on the contrary, toward expansion of human rights. That development has been overshadowed in part by Lincoln’s scramble in the first year of his administration to identify constitutional justification for the powers he thought were needed to quell secession and rebellion. Persistent problems with the suspension of the writ of habeas corpus and the unusual proscriptions of civil liberties took front and center in public debate at the time, and have ever since. The trajectory toward human rights has also been hidden from view because of the obscure and often marginal areas in which it first made its appearance – or reappearance – during the Civil War. Of course, there was nothing marginal about the Emancipation Proclamation, but Lincoln went out of his way to disguise that humanitarian move as a matter of statecraft alone, a military necessity under the laws of war and the powers of the President of the United States as commander-in-chief. After its issuance, Lincoln went on to explore the little-used and underused powers in the Constitution: the presidential pardon, which Lincoln now extended in unheard-of proportions to previously marginalized peoples; the guarantee of a republican form of government; and even international law.5 These adventures in constitutional exploration and interpretation ultimately served the end of extending human rights in general. Lincoln thus put America on the road to the twenty-first century. If what you have read here does not seem like your mother’s version of the Civil War, then this introduction has accomplished its goal. What lies ahead may be the familiar terrain of the American Civil War, but the reader will travel new trails through it. The American Civil War is a mature field of study blessed with many scintillating narratives. Writing about it these days is more a matter of tackling problems raised by those narratives than of amplifying and extending the overall narrative with ever finer details. The vision of Civil War politics in this book rests simply on a handful of questions raised in the narratives of the past and long in need of answers. If we duly recognize the uncooperative bitterness and rancor of the political parties during the war, as we must, then how can we account for the fact that the critical work of the war got done: soldiers enlisted, government bonds sold, and medical supplies for the troops raised by charities?

5

 William A. Blair, With Malice toward Some: Treason and Loyalty in the Civil War Era (Chapel Hill: University of North Carolina Press, 2014), esp. 19.

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If we realize, as the Democrats at the time certainly did, the hopelessly minority position of their party in the North after secession, then how can we account for the rise of a dangerously disruptive peace faction within the party, formed just at the time the party most needed to close ranks and hope for Republican mistakes in the election of 1864? Why would such a minority party risk making mistakes itself, when there was plenty to criticize in the performance of the Republican administration during the war? If we think, as modern historians do increasingly, that the Civil War Democratic party was a party of “white supremacy,” how can we account for the intensity of that prejudice when the Democrats no longer needed to take into account in their councils and calculations those members of the party with the most at stake in asserting an aggressive racism, the white Southerners? If we attribute the Republicans’ nearly disastrous losses in the off-year elections of 1862 to the race-obsessed Democrats’ aroused fury against the recently announced Emancipation Proclamation (a question closely related to the previous one), then why do we not ask ourselves why the Republicans were not equally aroused by positive enthusiasm to get out the vote and show their support for this long-awaited policy goal? Could the Proclamation possibly have animated Democrats and left Republicans unaffected? If a great civil war made it utterly impossible to amend the Constitution of the United States, which for all practical purposes it obviously did, then why did President Lincoln himself support and in some cases actually draft five proposed constitutional amendments? One of those amendments would have guaranteed slavery in the Constitution, and another, ratified after the war was over, in fact ended slavery in the United States – how can such a contradictory record be accounted for? And if the Democrats were the party that had always clung most tenaciously to the text of the Constitution, who as a minority party during the war most needed its minority protections, and whose motto was “The Union as it was and the Constitution as it is,” then why did they opt in 1864 to endorse a peace platform that was flatly unconstitutional? Finally, if Abraham Lincoln was a constitutional thinker of significance – and most modern constitutional historians and lawyers agree he was – then what happened to his antebellum liberal and liberating interpretations of the Constitution after he was forced by secession to deviate from his steady course and locate coercive powers in the document? The pages that follow propose answers to all these devilish questions that have plagued the political and constitutional history of the Civil

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Introduction

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War. Though it is a political and constitutional history, ultimately, this is also a book about war. The behavior of the political parties may well have been different before and after, in peace. But the Civil War imposed special conditions on them. For one thing, one simply cannot think that the Democratic party was the same when there were almost no white Southerners in it – as in this brief four-year period. Likewise, the vague anti-party sentiment that survived from the earliest years of American politics in the eighteenth century was certainly much less vague during a war. And politicians scoured the Constitution for obscure clauses and new meanings as never before. The result, as we shall see, resembled the performance of the modern US stock market – highly volatile from day to day but, in the end, as stable as ever. We will begin in the important realm beyond politics.6

6

  For making political historians aware of the boundaries of politics, we have social historians Glenn C. Altschuler and Stuart M. Blumin to thank. See their crucial book Rude Republic: Americans and Their Politics in the Nineteenth Century (Princeton: Princeton University Press, 2000).

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chapter 1 Beyond Politics: How the North Won the Civil War

In 1967 historian Eric McKitrick, in a clever feat of counterintuitive historical argument, maintained that the two-party system was an important advantage that the North held over the Confederacy. For a time, the idea swept some historians off their feet, and it was routinely invoked at historical conferences as an explanation of the politics of the Civil War.1 The survival of the two-party system through the war was definitely something to celebrate, but it is quite another thing to say that the system aided the Northern war effort or, conversely, that the Confederacy suffered for want of a two-party system. Soberly considered, the direct influence of the two-party system on the war effort of the North was nothing to brag about. It did not aid careful military analysis to have Republicans accuse Democratic generals like George B. McClellan of treason because they did not win battles, or to have the Democratic governor of mighty 1 

Eric L. McKitrick, “Party Development and the Union and Confederate War Efforts,” in William Nisbet Chambers and Walter Dean Burnham, eds., The American Party Systems: Stages of Political Development (New York: Oxford University Press, 1967), 117–151. See also Michael F. Holt, “Abraham Lincoln and the Politics of Union,” in Holt, Political Parties and American Political Development from the Age of Jackson to the Age of Lincoln (Baton Rouge: Louisiana State University Press, 1992), 323–324, and “An Elusive Synthesis: Northern Politics during the Civil War,” in James M. McPherson and William J. Cooper, Jr., eds., Writing the Civil War: The Quest to Understand (Columbia: University of South Carolina Press, 1998), 117–118 (which expresses disappointment that McKitrick’s lead was not often enough followed out to systematic analysis in detail of both political parties in the conflict). Even in McKitrick’s even-handed and social-science-inspired article, the Democrats are not much featured and little attempt is made to understand them. Those that are mentioned were the three famously controversial gubernatorial candidates of 1863 – Clement L. Vallandigham, George W. Woodward, and Thomas Seymour. The presidential nominee in 1864, George B. McClellan, is mentioned only once and dismissed simply as “a general . . . who had been dismissed for the failure of the operations of 1862 in the Eastern theater” (p. 149).

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Beyond Politics: How the North Won the Civil War

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New York urge the president to suspend the draft pending a decision of the United States Supreme Court on its constitutionality (which never came). Intuition in this case was sound. The two-party system did not aid the Northern war effort.2 Even saying that much still leaves the impression that the political parties shaped the Northern war effort. In fact, they did not, very much. The United States Constitution played an enormous configurative role in designating powers that were uncontested in the partisan debates of the Civil War. The Constitution, for example, determined that the president would be the commander-in-chief for at least the length of a four-year term, and temporary battlefield setbacks could be weathered by the administration. But there was only so much the Constitution itself could do. It could not raise money and troops or care for the sick and wounded. These critical tasks, as it turned out, were taken care of not so much by politicians as by civil society at large. In other words, the most important factors in Union victory off the battlefield were not political at all. The two-party system had its boundaries in peace and war, and most matters crucial for the war effort fell outside party competition or, more rarely, were facilitated by the parties’ cooperating rather than competing. We owe a debt to Glenn C. Altschuler and Stuart M. Blumin’s highly original book, Rude Republic: Americans and Their Politics in the Nineteenth Century, for proving that politics did not enter into all aspects of life in mid-nineteenth-century America and that there were important areas customarily off limits to political competition. However, they thought the wall separating private and public was breached by the Civil War.3 It was not. The areas vital to the life of the nation did not become the playthings of partisan competition but remained in the hands of volunteers, civic boosters, and notable locals. Truth to tell, the parts of the war effort behind the lines that worked best were those that were unimpeded by the two-party system and the bickering habits of politicians. The nonpartisan realm took care of the important matters: the mobilization for the war, the financing of the war effort through loans, and much of the support essential to soldiers’ families left at home.4 Taxes, public debt, and military recruitment at the local level worked to save the country despite politics. 2

 For a fuller argument on this point see Mark E. Neely, Jr., The Union Divided: Party Conflict in the Civil War North (Cambridge, Mass.: Harvard University Press, 2002). 3  Glenn C. Altschuler and Stuart M. Blumin, Rude Republic: Americans and Their Politics in the Nineteenth Century (Princeton: Princeton University Press, 2000), 152–170. 4  For deep statistical proof from one large community that the war did not radically alter the institutions and habits of antebellum America, see J. Matthew Gallman, Mastering

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The politicians continued to indulge their habits of noisy and confrontational rhetoric without interruption during the war, but on key practical questions they relaxed competition and turned energies customarily devoted to fault-finding into boosterism. Now historians can say with confidence that politics did not enter into everything during the Civil War – and it was a good thing.5

Financing the War Let us begin with the least obvious realm of triumph of the local and civic over the national and political: funding the war. On the surface, that would seem to be a matter of congressional appropriations, of the Legal Tender Act, and of taxation, including the first income tax – all perennially partisan issues. But when we examine the vast transfer of wealth from the pockets of private individuals to the coffers of the national treasury, we find that the largest part of the funding was nonpartisan and non-coercive. According to Richard N. Current, 62% of the “Union’s income” during the war came from the sale of government bonds.6 In other words, the marketing of government loans was essential to the war effort. The government sold 6% bonds, which had to be held for 5 years and redeemed in 20 years (called the 5–20s). Philadelphia’s Jay Cooke sold this loan at first. Later, he also sold 7.30% bonds that had to be held for three years (called the 7–30s). James McPherson accurately and succinctly termed the bond drives a “policy of financing a democratic war by democratic means.”7 Even so, that view has been challenged and itself overlooks the essential quality of all the war bond drives: nonpartisanship. The bonds proved a hard sell initially until Jay Cooke became the exclusive broker Wartime: A Social History of Philadelphia During the Civil War (Philadelphia: University of Pennsylvania Press, 1990). 5  It should be noted that the terminal date for William E. Gienapp’s assertion that politics entered into everything was 1860. Had he gone on to look at the war, he should surely have argued otherwise (“‘Politics Seems to Enter into Everything’: Political Culture in the North, 1840–1860,” in Stephen E. Maizlish and John J. Kushma, eds., Essays in Antebellum American Politics, 1840–1860 (College Station: Texas A & M University Press, 1982), 15–69). The idea that politics were responsible for the successful Union war effort was Eric R. McKitrick’s. 6  Richard N. Current, “God and the Strongest Battalions,” in David Donald, ed., Why the North Won the Civil War (Baton Rouge: Louisiana State University Press, 1960), 10. 7  James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 443. See also Ellis Paxson Oberholtzer, Jay Cooke: Financier of the Civil War, 2 vols., orig. pub. 1907 (New York: Burt Franklin, 1970), 1:212–326, 478–538.

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for the United States Treasury program on October 23, 1862.8 Even for the financial genius Cooke the government loans posed a problem at first, as he launched his effort at a low point in Northern military fortunes. The sales campaign began to get into gear after the defeat of the Army of the Potomac at the Battle of Fredericksburg, December 13, 1862. To Cooke, the point of the bond drive was simple: “my plan would give individual enterprise the care of distributing” the government loan. The congruence of private gain (Cooke’s) with public treasury purpose has been the most noticed feature of the program.9 His firm took charge of the 5–20 loans in denominations large and small. It was a good deal for the investor, and for the first time Americans of modest means – who could scrape together $50 to purchase a bond – could make a profitable investment that lay outside the dangerous speculative games played by brokers attempting to corner the market on Wall Street.10 It was a capitalist scheme, to be sure. Melinda Lawson, who has brilliantly recovered the importance of the Cooke bond drives, calls it “the privatization of government finance,” and Cooke himself earned a fortune. But more important forces were at work in these bond drives than anyone’s private gain, great or small. Thinking about the loans in the way Lawson has suggested obscures a very important quality of them unmentioned in the modern literature: they were nonpartisan. And though they benefited a great capitalist and pooled capital for the nation, they were suffused with democracy, opportunity, and community effort. The appeals for the government’s bonds usually mixed patriotism with economic gain. An early printed appeal to investors pointed to the small denominations in which the bonds could be purchased and said that “every Capitalist, be he large or small, or Merchant, Mechanic, Farmer . . . should invest at once his spare funds.”11 The advertisements that appeared in newspapers across the country, beginning November 10, 1862, put the other classes before the capitalist: “Farmers, Merchants, Mechanics, Capitalists, and all who have any money to invest.”12 Both Cooke and Secretary of the Treasury Salmon P. Chase thought of the loan 8

 Melinda Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North (Lawrence: University Press of Kansas, 2002), 47. 9  Ibid., 46–47. 10  Ibid., 41–47. 11  Ibid., 47. 12  See the advertisement from the “Office of Jay Cooke, Subscription Agent,” appearing in many newspapers in the country. I first saw it in the Gettysburg Compiler, November 10, 1862.

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drive as the democratization of war finance rather than its “privatization,” and Cooke’s and the government’s advertisements self-consciously appealed to all classes of people. Cooke, who quickly learned that flattery was essential in dealing with the vain and ambitious secretary of the treasury, told Chase on November 1, 1863, after the success of the bond drive was clear, “There is nothing in History to compare with the triumph of the appeal of yours to the people of our land. The success attending your former efforts to popularize the 7.30 Loan together with motives of economy and a desire that the people should participate in the advantages of the loans to government led you to adopt a similar course in disposing of the 5.20 Loan.” Of course, Cooke was a salesman and did not fail to promote himself at every opportunity in dealing with the treasury secretary. In the same letter Cooke went on to say that the program did not rely on “Banks and Capitalists” but employed “a direct appeal to the people & the distribution of the loan through the medium of this agency into every nook & corner of the loyal States & rightly relied upon the patriotism of the people to substantiate the Treasury of the nation.” Cooke’s estimate at this point was that 536,000 people subscribed to the loan, and he used sweepingly broad democratic language in describing them – “of all classes, high & low, rich & poor white & black & of all nations & tongues, trades occupations & professions.”13 The actual distribution of the loans by social class is unknown and likely unknowable. A quantified assessment of the distribution of the loans would be informative, but it would be a mistake to dwell exclusively on the quality of privatization, profit, and social class in the Cooke–Chase scheme to sell the government loans. Preoccupation with such questions may have blinded us to the most important feature of the appeals for the government loans: they were nonpartisan. Cooke and the Treasury Department advertised in Democratic and Republican newspapers alike. Cooke and Chase likely had some conscious recognition of the nonpartisan nature of the appeal to fund the war. We know that because it was not customary in the nineteenth century to separate the editorial and commercial departments of the press, and newspapers were the primary advertising medium for the government loan.14 They knew from whom they were buying the ad space; the newspapers of the day were notorious for their partisan identification. 13

 Jay Cooke to Salmon P. Chase, November 1, 1863, Papers of Jay Cooke, Library of Congress, microfilm edition, reel 12. 14  Cooke’s agents who travelled the country also distributed newsletters and put posters up.

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The average country weekly could hardly have “departments” because they employed no local reporters, and the staff of the paper consisted of an editor who clipped the national news from other newspapers, poured out editorials, and hired and supervised pressmen. The editor likely also saw to the advertising revenue.15 The editors, though fierce partisans, regularly promoted in the non-commercial pages the traveling circuses and theater shows that advertised in their commercial pages when they came to town, and sometimes presented as news the arrival of new goods at local stores that advertised in their pages. It was irksome, at the least, and degrading, at the worst, to indulge in the practice, but the editors had to. The editor of the Waynesburg (Pennsylvania) Messenger, describing the indignities of “Editing a Country Newspaper” in 1862, pointed to the necessity to “puff every little contemptible concern that orders a fifty cent job.”16 Jay Cooke knew how the press worked. He created publicity through advertisements for the bonds, for which he paid, and also through endorsements in editorials from the editors, many of which he and his brother actually wrote, and some of which were written by newspaper employees who were paid for their editorial work by Cooke. In other words, Cooke and his agents wrote or oversaw and approved the writing of editorials supporting the administration’s financial program in Democratic newspapers as well as Republican ones. “My advertising shall not discriminate, but give to all parties who will speak a good word for the government and finances – the same patronage,” Cooke told Chase.17 Naturally, the Republican newspapers were quicker to endorse the schemes of the Treasury Department of the Lincoln administration in 15

 J. Cutler Andrews, The North Reports the Civil War (University of Pittsburgh Press, 1955), focuses on the newspapers in major cities. There is no real substitute for reading the newspapers themselves – in series and from different places – to understand the way the papers worked. I benefited greatly from conversations with Matthew Isham on the nature of the partisan press of the mid-nineteenth century. To understand the differences between the national political goals and the local community goals of the press see Isham, “‘Breaking over the Bounds of the Party’: The Role of the Party Newspaper in Democratic Factionalism in the Antebellum North, 1845–1852,” Ph.D. Diss., Pennsylvania State University, 2010. See also Andrews, The South Reports the Civil War, orig. pub. 1970 (University of Pittsburgh Press, 1985), 24–26. Non-metropolitan newspapers looked the same, north and south. 16  Waynesburg Messenger, October 22, 1862. 17  Jay Cooke to Salmon P. Chase, October 25, 1862, quoted in Melinda Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North, 49–50. Lawson describes the manipulations of the press but does not note the crucial nonpartisan nature of the sales campaign

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their editorial pages than were the Democrats. In Pennsylvania, the Republican newspaper in Harrisburg, the state capital, was a daily, and managed to devote some words of endorsement for the 5–20s only three days after the first advertising of them in its pages in the late autumn of 1862. Unlike the finance capitalist Cooke, the newspaper editor preferred to stress patriotic motives over those of individual financial gain: To Farmers, Mechanics and Capitalists. Upon these three classes, divided only so far as labor and industrial pursuits are concerned, but united where real interest, patriotism and honor are involved – now depend the success, the prosperity and the perpetuity of the nation. Our gallant army and navy must be supported by every man and woman who has any means, large or small, at their control. The United States government, to which we owe our prosperity as a nation, security of persons and property of every sort, calls on each individual to rally to its support – not with donations or gifts – BUT WITH SUBSCRIPTIONS TO HER LOANS, based on the best security in the world, the untold and scarcely yet tried resources of this mighty Continent, which were developing rapidly when this rebellion broke out, and to maintain which, AS A PRICELESS HERITAGE TO POSTERITY, this defense against rebellion is made. . . . What our Revolutionary Fathers are to us, we will be to coming generations, if we fail not in our plain and simple duty. The owner of every foot of ground, of every house and workshop, owes a debt of service in the field, or of his means to this noble work.18

Although visions of national prosperity were invoked, there was no direct appeal to individual gain – to the interest rate – in this editorial in the Harrisburg Telegraph. The overall plea was for selfless patriotism, honor, duty, service, and historical traditions of the American Revolution. Editorials promoting the loan appeared in the Democratic press too. In the case of the later 7–30s, the Treasury Department for a time decided to work without Cooke and sell their bonds on their own, and thus the Lincoln administration’s Treasury Department dealt directly with the Democratic press to advertise the administration’s financial program. A good example was an appeal that appeared on September 7, 1864, in the Lebanon Advertiser, a Pennsylvania Democratic weekly. It was entitled “Poor Richard’s Reasons for Buying United States Securities.” “The other day,” the article began, “we heard a rich neighbor say he had rather have railroad stocks than the U.S. stocks, for they paid higher interest. Just then Poor Richard came up, and said that he just bought some of Uncle Sam’s three years notes, paying seven and three-tenths per cent. interest.” 18

 Harrisburg Telegraph, November 14, 1862.

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Poor Richard pointed out that what an investor desires is a “perfectly secure income,” one that is “uniform and permanent,” and an instrument that was “marketable” when he needed the money. No corporate stock met such criteria. On the point of the security of the investment, Poor Richard said, “I have been looking into that great book you call the Census Statistics . . . I found out, by looking at the crops, and the factories and shipping, &c., that we (I don’t mean the Rebel States) are making a thousand million of dollars a year more than we spend. So you see that (since the increase of debt isn’t half that) we are growing rich instead of poorer, as John Bull and the croakers would have us think.” In addition to confidence in the productiveness of the American economy, Poor Richard said he was moved by patriotic feeling. “I confess, too, that I wanted to help that dear old country, which is my home and my country.”19 “Poor Richard” was likely an editorial furnished by the Treasury Department. It appeared in the same issue of the paper with an advertisement for the 7–30s. Five days later, “Poor Richard” appeared in the Gettysburg Compiler, a Democratic newspaper, which was also carrying advertisements for the government bonds.20 Whatever we may think of the direction of the Treasury under Salmon P. Chase, it must be said that this editorial – with its invocation of the legendary patriot and champion of bourgeois virtues, the author of Poor Richard’s Almanac, Benjamin Franklin – was inspiringly on target. Patriotism, frugality, and plain-speaking were rolled into one in that revered image, and the appeal crossed party lines. Neither Democrats nor Republicans held a monopoly on Franklin’s image. The Democratic Erie Observer exemplified the schizoid view of economics given to readers by virtue of the acceptance of informational advertisements that conflicted with the message on the editorial page of the paper. In the week preceding the meeting of the Democratic national nominating convention in Chicago in 1864, the Observer copied an article from the Democratic New York World on “The Public Debt of the United States.” It pointed out the great financial difficulties that loomed in the country’s mounting war debt (that would mean problems in paying the interest on government bonds).21 The same issue of the Erie newspaper reprinted “Poor Richard’s Reasons for Buying United States Securities.” It appeared on the front page and was labeled “[advertisement].” Poor 19

 Lebanon Advertiser, September 7, 1864.  Gettysburg Compiler, September 12, 1864; the ads appeared in the issues of September 5 and 19. 21  Erie Observer, August 25, 1864. 20

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Richard, of course, in arguing from the census returns the ability of the government to meet its debt obligations, contradicted the Democratic editorial appearing on another page. The Erie Observer continued to send out mixed signals on the debt question. In the heat of the political campaign in 1864, with only two issues of the paper scheduled to appear before voting in the state’s elections in October, the Observer printed the most detailed of the appeals for the 1864 loan. This long article was labeled as an advertisement also and was copied from Harper’s Magazine. It made the essential sales points we have seen already: This investment was secure, did not fluctuate in value, and was liquid. The article employed more extensive statistics from the census to make essentially the same point we have already seen, and touted the interest rate as the highest available on a safe investment. “It is in every way the best Savings’ Bank,” the appeal concluded. In general this appeal focused most directly on the personal gain to the investor. But it betrayed its origins by its confrontational Republican tone on “patriotism” and “duty”: “The loan is wanted for a great national purpose, to effect which every man, unless he be a traitor at heart if not in act, is solemnly pledged.”22 It is striking that this Democratic newspaper would dedicate a long column on its front page only a little over a week before a critical election day in a presidential election year to an editorial endorsing the administration’s war-funding scheme and suggesting that any opponent was “a traitor at heart.” The newspaper was otherwise fiercely partisan, as was most of the press of the day, but funding the war as a practical matter was nonpartisan.23 The Treasury Department and Jay Cooke & Co. provided a variety of articles in support of government bond drives. We have seen the more patriotic appeals already. On the more materialistic end of the scale came “Our Debt.” It relied on circular letters issued by Samuel Hallet & Co. to European countries. These assured possible foreign investors of the bright economic future of the United States and therefore the certainty of the government’s ability to repay its loans. Not much was said to the Europeans about the patriotic ends to which the loan would be applied. 22 23

 Erie Observer, September 29, 1864.  The Observer ran another article from the World calling into question the ability of the United States to pay its debt, but that appeared only on October 13, 1864, days after the polls closed in Pennsylvania. The October state elections in Pennsylvania were all but universally regarded as bellwethers for the presidential election day to come a month later, and were deemed of crucial importance in the presidential contest. For the editorial see the Erie Observer, September 29, 1864.

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After quoting Hallet’s circular at length, the article concluded: “The new Five-Twenty year six per cent loan, is the only one the government is now issuing at par, and large subscriptions are daily making in all the principal cities. Messrs. Jay Cooke & Co. . . . are the agents in Philadelphia . . . See advertisement in another column.”24 A similar approach was taken in the article entitled “Are the Germans Wrong in Wanting Our Bonds?” The answer, of course, was “Not a bit of it!” The article pointed out that the Germans were shrewd and thrifty, better at saving even than our own “frugal and industrious people,” “our Jersey and New England people.” Poor Richard put in an appearance in this article too, reminding skeptics that he had invested his “little saving in Government six per cents” over a year ago and, taking into account fluctuating monetary values, had earned a hefty 22 percent. “Now, see what I got by it; just count it up,” he said enthusiastically. There was no stopping “the progress of such a country.”25 The principal patriotic element in such appeals was the materialistic vision of inevitable economic progress in the American nation. Doubtless, Americans relished contradicting the disparaging views of the position taken by the hostile London Times, which (according to one article) had said that it was “all wrong” to think the United States could fund its debt because “the Republicans are all bankrupt.”26 The advertising campaigns for the government bonds were wonders to behold; indeed, Melinda Lawson declares that Cooke’s “exhaustive use of the press to promote the government loan was unprecedented.”27 We must always recall, given the extreme partisan nature of the press in the mid-nineteenth century, that any “exhaustive” press campaign was of necessity nonpartisan. At that, there were limits to the media reach of Cooke and Chase. If we take Pennsylvania Democratic newspapers, a sample of half a dozen comes up with three papers – Gettysburg, Erie, and Lebanon – that ran the ads and editorials, and three that did not – Clearfield, Waynesburg, and Bellefonte. The Clearfield and Bellefonte newspapers, published in the mountainous and isolated central part of the state, were notably conservative and peace-oriented, but it is difficult 24

 This is how it appeared in the Republican Altoona Tribune, November 15, 1862.  Altoona Tribune, October 15, 1864. 26  Ibid. For another argument see August 24, 1864. For eager uses by other Republican newspapers in Pennsylvania see especially the Mariettan, August 13 and 27, and September 10, 1864, and the Franklin Repository, September 14 and 28, 1864. 27  Melinda Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North, 49. 25

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to be certain that ideology always trumped the lure of money from advertising. The Lancaster Intelligencer, one of the more conservative Democratic newspapers in the state, finally accepted advertisements for the 5–20s in 1862, and in 1864 ran advertisements for the 7–30s – and printed three of the planted articles explaining the appeal of the government loans as investments for ordinary people.28 The advertising campaign did not consistently exploit Republican newspapers, either, as neither the Pittsburgh Gazette nor the Huntingdon Globe carried the advertisements for the 1864 bond drive.29 The advertising campaign met resistance from the extremist Democratic press, as the cases of the Bellefonte and Clearfield papers show. We also have testimony to that effect from Jay Cooke’s travelling agents. A man named Robert Clarkson, for example, whose territory included the states of the Old Northwest in 1862, had trouble in Dayton, Ohio. That was the hometown of Clement L. Vallandigham and part of his congressional district, and Clarkson reported, “the papers here are all right except the Empire which is in Vallandigham’s interest.”30 Republican newspapers were eagerly cooperative, but Clarkson met some resistance from a surprising quarter, the commercial press. In Cincinnati, Clarkson “found the Gazette hard to manage,” not because it was part of the “locofoco” interest, as he described Democratic affiliation, but because the Gazette was the city’s commercial paper and the editors fancied they knew about finance and did not need instruction from Jay Cooke’s agent.31 To be sure, in that heavily partisan age, in which newspapers were a branch of politics and not of journalism, firm identification with party put a strain on any truly national appeal.32 Neither the people who sold and promoted the bonds nor the people who accepted advertisements and printed editorials were, most of them, independent in politics. The men who pushed the government’s bonds were Republicans, whether they came from Cooke’s firm or from Lincoln’s Treasury Department. 28

 Lancaster Intelligencer, December 23, 1862, February 24, 1863, and August 4, 11, and 25, 1864. 29  The placement of the ads may have been complicated in these and other communities that had more than one Republican newspaper. Runs of the papers do not survive in the archive to prove the point. 30  Robert Clarkson to Jay Cooke, December 11, 1862, Papers of Jay Cooke, Library of Congress, microfilm edition, reel 10. 31  Robert Clarkson to Jay Cooke, December 9, 1862, ibid. 32  On that point, absolutely essential to understanding nineteenth-century politics, see Michael Schudson, The Good Citizen: A History of American Civil Life (New York: Free Press, 1998), esp. 121.

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They were generally suspicious of Democrats, and Democrats were suspicious of them. Some of the methods employed by Jay Cooke & Co. might not stand close scrutiny. Jay’s brother Henry D, or “Harry,” Cooke, for example, invited newspaper correspondents and editors in Washington to his house for dinner in March 1863 (Jay Cooke opened an office in Washington to help take care of the government loan business, and his brother managed it). Harry told his brother not to come to Washington for the dinner for fear “it would look too pointed – and the object of the dinner might be suspected.”33 Afterward he reported to his brother that he “had a splendid time last night with the Editors and correspondents and filled them full to the brim not only with ‘edibles and bibibles,’ but with the glorious financial prospects of the future.” He assured Jay that they “were all thoroughly, (though unconsciously) indoctrinated with our ideas.”34 The two Cooke brothers did much of the writing of planted editorials, but sometimes they paid others.35 Frederick W. Grayson, for example, who worked for the Philadelphia Public Ledger, an independent financial newspaper, asked for a conference with Jay Cooke in December 1863 before “writing the article in which we propose to show the ample resource of the Government to meet its present and prospective indebtedness.” Grayson had already written one financial article favorable to the Cooke interests. “In the meanwhile,” he added, “put your own price on the article already published and send me the money as there are some little people at home whom I wish to make happy on Christmas, if I can find the means to do so.” Cooke endorsed the letter on the back, “Send Grayson, Editorials $250 on account & take voucher – as usual[.] [T]ell him I would be glad to see him – before Christmas & wish him & his little ones a happy time &C.”36 The methods may have looked somewhat devious, but they were not partisan. Cooke and his agents were firmly identified with party, but they knew the loan needed support of Democrats and Republicans alike. They dealt with the men who proved willing to deal with them. Thus two German-American agents of Cooke’s brokerage house working in 33

 Henry D. Cooke to Jay Cooke, March 9, 1863, Papers of Jay Cooke, Library of Congress, microfilm edition, reel 10. 34  Henry D. Cooke to Jay Cooke, March 10, 1863, ibid. The specific topic of discussion seems to have been a finance law then pending in Congress. 35  See, for example, Jay Cooke’s printed letter of June 8, 1863, to “Dear Sir,” ibid., reel 11. 36  Frederick W. Grayson to Jay Cooke, December 17, 1863, with endorsement, ibid., reel 12.

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Milwaukee reported that they had “advertised the Loan in the mildly Copperhead daily German organ of this city & operated on the Editor of that paper so successfully that in next days issue appeared a very favorable notice of the Loan, which although not enthusiastic gives the advantage of the Loan a very fair ventilation. The result was a most violent attack on the Loan by the fire eating Copperhead paper which appeared next day.”37 Another agent working in Chicago reported on a favorable meeting with that city’s bankers and editors, but about one of them he said, “It is proper to state, however, that this gentleman though an honorable man standing high in this community – and a loyal supporter of the Government is a Democrat and chooses freely to express his opinions.”38 A brokerage house in New York City, Fisk and Hatch, worked with publications in that Democratic metropolis which was most important to the success of financial schemes. In 1863, Appleton’s Annual Cyclopaedia, published in the city, ran numerous articles on the war in its yearly publication. Someone at Fisk and Hatch apparently noticed that the entry on “Finances” for the previous annual, written in the autumn before the 5–20 campaign commenced, painted a gloomy picture of the economy and the government debt. Fisk and Hatch checked up on the author. “We have not been able to learn anything definitely as to Mr. Tenneys political character, but he is slightly Copperhead or intensely Conservative,” they reported. Still, there was hope for improvement next time, they thought. A “well and candidly written article, which did not assail him, but was based upon the changes which have taken place in the financial [illegible], during the last six months, could be got into the Encyclopedia, or at least be made the text for Mr. Tenney to preach a more acceptable discourse from.”39 At one point, Cooke decided to try using the firm of S. M. Pettingill & Company Newspaper Advertising Agents to place ads. As a trial, apparently, the Pettingill firm sent an article to some two hundred newspapers in the state of New York.40 Shortly thereafter they sent Cooke a copy of the Saratoga Republican, “a Democratic newspaper of very limited circulation.” The editor of the Republican had written to the editor of the New York World, telling him the article sent to the Republican had 37

 Paul Jagode to Jay Cooke, October 21, 1863, ibid., reel 12. Violent attacks on the government loans in the press were extremely rare. 38  Thomas F. Stowell to Jay Cooke, October 17, 1863, ibid., reel 12. 39  Fisk and Hatch to Jay Cooke, August 18, 1863, ibid., reel 11. 40  S.M. Pettingill to Jay Cooke, December 7, 1863, ibid., reel 12. See also S.M. Pettingill & Co. to Jay Cooke, December 2, 1863, ibid.

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come from Pettingill and Company. “There is no possibility that it can be traced beyond us,” the agents assured Cooke.41 Democratic newspaper editors might tailor the sales pitch to their audience. The Cleveland Plain Dealer, a pro-war Democratic newspaper, called “the attention” of their readers “to the 7–30 Popular Loan.” There were “two duties the people” owed in this financial matter. One was patriotic. The tone of explanation of that duty was definitely Democratic: “[T]]he Treasury needs the money to carry on the war, which it must be confessed is being now prosecuted with most commendable and satisfactory activity.” No Republican editor was likely to remind readers that the war had not always been conducted satisfactorily. Moreover, the Democratic editorial managed to fit investment in the bonds into the hard-money views of their wing of the party. The citizen’s duty was to invest in government bonds and thus eliminate the necessity to print paper money to fund the war.42 Besides the ultimate success of the government bond drives in raising money for the war and their self-conscious desire to democratize investment in America, it is clear that there are important conclusions about politics to be drawn. First and foremost, the appeal was nonpartisan. The Lincoln administration and its financial agents ran advertisements for the loans in Republican and Democratic newspapers alike. Newspapers identified with both parties proved generally willing to accept the ads – and sometimes editorial endorsements of the financial program as well. There can be no better proof of that point than the article “Poor Richard’s Reasons for Buying United States Securities.” It ran in the Republican Altoona Tribune on August 10, 1864, and in the Democratic Lebanon Advertiser on September 7, 1864, then in the Democratic Gettysburg Compiler on September 12, 1864. It is remarkable to find the same editorials running in both Democratic and Republican newspapers in a presi­ dential election year – and about a matter as important as government finances. Second, it should be noted that the appeals, though ultimately inspired and driven by the arch-capitalist Jay Cooke, were often as much to the heart as to the pocket-book. To be sure, the bond drives served different interests besides the nonpartisan one of providing adequate funding for the war to save the Union. Not only did the house of Cooke benefit richly, but so did the political fortunes of Salmon P. Chase. As early as March 1863 Chase’s personal 41

 S.M. Pettingill to Jay Cooke, December 17, 1863, ibid.  Cleveland Plain Dealer, December 19, 1864.

42

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political ambition began to rear its head in the financial correspondence. Henry Cooke wrote his brother about articles planted in the Philadelphia Public Ledger. In Washington he had seen the treasury secretary, who “was pleased with the Ledger money articles – and noticing the one in which these words occur – ‘it appears as if Sec’y Chase were equal to the crisis’ – he suggested that the money editors should put forward, and keep prominent this idea.”43 Henry repeated the point again early in April, “The Govr is greatly pleased at the newspaper extracts. Keep his management of the Treasy in the foreground as much as possible.”44 By early 1864 Cooke’s associates were managing biographical sketches of Chase.45 Political ambitions persisted, as did ardent identification with party on the part of the people. But some matters fell outside the boundaries of partisanship. The government loans that supported the Union war effort were not fundamentally matters of social class, partisanship, or presidential ambitions. They were matters of patriotism and nationalism.

Mobilization Nothing was more crucial to military victory than soldiers. During the Civil War most of them were volunteers, and the main mechanism employed to encourage men to enlist was bounty payments. Raising bounties to recruit soldiers proved also to be a nonpartisan effort. Democrats were as enthusiastic as Republicans in raising money to that purpose (Republicans sometimes dragged their feet, thinking a draft was fairer and fearing that reliance on volunteers alone allowed Democrats to stay home and vote while patriotic Republicans were away fighting the war). But after the attempt to impose a draft resulted in the destructive New York City draft riots of July 1863, both Democrats and Republicans alike sought ways of raising recruits without provoking violent resistance. Most of these crucial recruiting activities took place beyond the boundaries of political parties, at the local and civic level, and below the great storms of partisan rhetoric raised in Congress and on the stump. Bounties were matters of hard economic fact – loans voted by local governments to raise the necessary funds, and local insurance-devised schemes to raise money to replace reluctant draftees with men who could be lured into 43

 H. D. Cooke to Jay Cooke, March 25, 1863, Papers of Jay Cooke, Library of Congress, microfilm edition, reel 10. 44  H. D. Cooke to Jay Cooke, April 9, 1863, ibid., reel 10. 45  H. Hosmer to Jay Cooke, January 2, 1864, ibid., reel 13.

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service with more money. They were hard facts of county budgets and local taxes to pay off the bounties – dollars and cents and not political rhetoric. The Democratic party often denounced the draft in rhetoric, but partisanship was largely ignored at the level where the men were actually recruited. Historians have altogether overlooked the nonpartisan quality of funding recruitment. Take, for example, the work of political historian Michael F. Holt. He calls into question the idea that the Democratic party formed a loyal opposition by pointing to mobilization. The “case for loyal Democratic support of appropriations to pay troops and purchase supplies, troop requisitions, and the like – rests solely on studies of congressional votes,” he argues. Looking at the few states that have received some scrutiny on such matters, he says, “indicates that most Democrats consistently opposed the taxes and bond issues necessary to pay and supply volunteers raised in those states . . . [I]n addition, studies of localities [in New Hampshire, for example] indicate far lower levels of volunteering and much more resistance to raising taxes to fund volunteer bounties in towns controlled by Democrats than in those the Republicans dominated.”46 We might term this the thesis of the hidden Copperheads. The Copperheads, or Peace Democrats, notoriously did not hide their light under a bushel. As we shall see in a later chapter the blinding smokescreen of rhetoric they created far exceeded the real fires beneath. Nevertheless, the great cloud of smoke has proved difficult to penetrate. Recently, Jennifer L. Weber leveled even more serious charges against the Copperheads in the Democratic party: “the peace wing’s opposition to the administration damaged the army’s ability to prosecute the conflict efficiently. Dissidents’ resistance to conscription and their encouragement of less ideologically minded Americans to dodge the draft or desert the army forced the military to divide its attention and at times send troops home to keep order there.”47 Most of the soldiers in the Civil War were volunteers, not conscripts, and the process of mobilization was not straightforward and simple. After the initial response to news of Fort Sumter’s fall, men generally volunteered after being offered bounties and promises of relief for soldiers’ families. The process filled the ranks in time, though not without 46

 Michael F. Holt, “An Elusive Synthesis: Northern Politics during the Civil War,” in James M. McPherson and William J. Cooper, Jr., eds., Writing the Civil War: The Quest to Understand (Columbia: University of South Carolina Press, 1998), 122–123. 47  Jennifer L. Weber, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (New York: Oxford University Press, 2006), 2.

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considerable anxiety and hard work. All in all, in the North only about 10 percent of those who served could directly be accounted for by drafting.48 In other words, the bounty system lay at the heart of mobilization in the North. Conscription, which Congress did not enact until March 3, 1863, served mainly to stimulate volunteers to enlist; men volunteered to avoid the draft (which carried quite a stigma) and to receive a bounty as well. The law also allowed conscripts to avoid service by paying a $300 commutation fee or paying a substitute to serve in their place.49 The government set a deadline for each district to fill its quota, and a draft took place in the district only if volunteering failed to meet the demand. Mobilization by bounty by no means worked only at the level of individual motivation – a matter of economic stimulus and self-interested response. Communities were critically involved. Cities, fearing resistance to conscription after the draft riots in New York City, hastened to raise funds for bounties and for guaranteed relief to volunteers’ families. Villages and towns desired a patriotic reputation and worked strenuously not to be outstripped by neighboring communities. Such community involvement, as it turned out, meant not political conflict over conscription but rather communal efforts to meet quotas and avoid the shameful appearance of inadequate patriotism implied by imposition of the draft. It was ironic perhaps that the New York City draft riots prompted the country to mobilize – in order to avoid such civil disorder. Democrats were as unnerved as anyone by the riots. Francis Hughes, former chairman of the Democratic party in Pennsylvania, was, as early as July 21, 1863, eager to hear of some judicial decision on the constitutionality of the draft. Writing from Philadelphia to Samuel Tilden, the prominent New York City Democrat, Hughes said that the “suspense” in Philadelphia was downright “painful.” Hoping for some decision on the question by a New York court, he assured Tilden that Pennsylvanians would go along with a declaration that conscription was unconstitutional, and, even if it was declared constitutional, “rather than resist law and invoke anarchy, 48

 The calculation is complicated because draftees could and often did pay $300 commutation or hired a substitute instead of serving themselves. Arriving at a figure near 10 percent requires counting a commutation fee as a soldier in the ranks. For the actual numbers see James M. McPherson, Battle Cry of Freedom: The Civil War Era, esp. 601. If one discounts the commutation fees, then the figure stands at around 6 percent. See James G. Randall and David Donald, The Civil War and Reconstruction, 2nd edn. (Boston: D. C. Heath, 1961), 315 and n. 49  For an example of the sense of stigma see Robert F. Engs and Corey M. Brooks, eds., Their Patriotic Duty: The Civil War Letters of the Evans Family of Brown County, Ohio (New York: Fordham University Press, 2007), 68.

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I do not think there will be any other opposition than sporadic outbreaks and a general feeling to avoid the compulsory service.” “I write,” he concluded, “to ask you that for the sake of the public peace, and I may well add for the sake of republican liberty on this continent, you give your best efforts to obtain a speedy decision on this subject.”50 Democrats opposed conscription because it was a Republican measure. They opposed it in Congress, in courts, in the press, and on the stump. But they did not really oppose mobilization where it counted, in the local districts where the law actually applied and where troops were raised. That practical level lay beyond the boundaries of politics, and, by and large, there, beyond politics, the republic was saved. The Democrats’ opposition, to put it bluntly, was mainly rhetorical and aimed at conscription, not mobilization. Ironically, the extreme and fractious Democrats of New York City led the way in solving the problem of the imposition of conscription in an individualistic country with a traditionally weak national state. In the aftermath of the infamous draft riots of July 1863, Tammany Hall, one of the great Democratic political machines in the city, came up, not with a plan of resistance to federal authority, but with a characteristically American buyout plan. According to Iver Bernstein, the city’s Democraticdominated government voted the eye-popping sum of $2,500,000 to pay the $300 commutation fee for any conscript from the city who needed it. The Republican mayor, George Opdyke (who had gained the office when the Democratic party split), repeatedly vetoed the appropriation, but it passed in modified form and was applied so that no one had to serve who did not want to. The draft operated thereafter, but reluctant or poor Democrats (or, presumably, Republicans as well), as a practical matter of fact, did not have to go if called. Republican politicians preferred a more selective buyout based on individual demonstration of need.51 The overall pattern is clear and surprising and was repeated later in many other locales: The Republicans opposed an appropriation to raise a great deal of money to raise troops while Democrats supported it. In the all-important instance of New York City, Democrats did not oppose “the taxes and bonds necessary” to raise troops at the local level, and it was not true 50

 Mark E. Neely, Jr., “Justice Embattled: The Lincoln Administration and the Constitutional Controversy over Conscription in 1863,” in Jennifer M. Lowe, ed., The Supreme Court and the Civil War (Washington, D.C.: Supreme Court Historical Society, 1996) [a special edition of the Journal of Supreme Court History], 53. 51  Iver Bernstein, The New York City Draft Riots: Their Significance for American Society and Politics in the Age of the Civil War (New York: Oxford University Press, 1990), 52–53, 64–65, 69–70.

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that “resistance to conscription” much “damaged” the military. Neither the “hidden Copperhead” thesis (Holt) nor the overt Copperhead thesis (Weber) explains what happened. Nonpartisan civic activism saw to mobilization for the war. The issues involved were not transparent. Republicans sometimes objected to the payment of commutation instead of service because that raised money but not actually men. That was New York City Mayor Opdyke’s stated objection. However, commutation was part of the conscription system until 1864, and even President Lincoln was prepared to defend it. To raise money for commutation was not to resist the Conscription Act, but rather to participate in the mobilization process under the existing system. To be sure, the amount of money prescribed, $300, was outstripped by the great war’s demand for men, which drove up the level of bounty necessary to lure men into service, and would not be equivalent in fact to recruiting another person for service. On the other hand, the amount of money raised from commutation and from substitution was apparently substantial enough to fund the entire operation of the draft bureau for the whole war. Provost Marshal General James B. Fry thus boasted after the end of the war that his bureau never had to ask for an appropriation from Congress to implement conscription. The bottom line was that Democratic efforts to raise money for commutation or substitution in order that the draft not work a hardship on some men who were called to service did not in fact impede mobilization under the Civil War system.52 The Democrats in New York City learned to exploit the vast financial advantages of the North to win the war. Northern communities, richer in capital by far than their Confederate equivalents, could buy their way out of any potentially serious social disorder incurred by the imposition of conscription. Communities all over the North imitated that basic solution to mobilization in an individualistic country with qualities equally American: ingenuity, enterprise, and energy expressed in community activism, a sort of patriotic boosterism. The following are examples of the actual working of these community energies beyond the boundaries 52

 Final Report Made to the Secretary of War by the Provost Marshal General . . ., 1866, in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, 128 vols. (Washington, D.C.: US Government Printing Office, 1880–1901), ser. 3, vol. 5, p. 684. For Lincoln’s rather lame defense, never made public, see Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:447–448. I am indebted to William A. Blair who generously shared with me the information about funding of the government bureau. Fry reported that the bureau raised $26,366,316.78 through its own legitimate operations.

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of political party in York, Harrisburg, Pittsburgh, and Philadelphia, Pennsylvania; and in Dubuque, Iowa. This description is pieced together from sources on local mobilization that are cryptic, spotty, and derived from broken sets of newspapers. York County was among Pennsylvania’s steadier Democratic counties. In the 1860 presidential election, Lincoln gained 5,123 votes to the 6,633 won by the opposition candidates. Lincoln would lose York County 5,568 to 8,500 in 1864.53 The county seat, the town of York, was more closely contested than the county at large. The local, or borough, government included a council, with one councilman elected from each of York’s five wards plus a chief burgess elected at large. The elections for local government were held annually in March, and in 1862 the Democrats gained victory in the chief burgess race (for only the second time in forty-five years). They also won two ward council seats. The York town council was evenly divided, then, three to three, when the failure of General George B. McClellan’s campaign on the Peninsula of Virginia at the beginning of July resulted in new calls for troops. This renewed mobilization effort of mid-1862 preceded the imposition of conscription under the Act of March 3, 1863, but a stopgap militia draft imposed in July 1862 eventually loomed over York, and bounties were already deemed necessary to raise the requisite number of volunteers. On July 15, 1862, the borough resolved to appropriate $2,500 to be used as $25 bounty payments for local enlistees. At a public war rally held in York on July 21, 1862, speakers urged raising bounties, and the meeting chose a committee of ten citizens to call on the county commissioners. The citizen committee waited on the commissioners on Saturday, July 26, to recommend in person that the county also appropriate money for a substantial bounty. The citizens made the argument to the Democratic county government that all neighboring counties had already voted bounties and that York County, located in the southern part of the state, was one of the counties most exposed to invasion and ought to do so as well. If they failed, moreover, a draft, now possible after Congress passed the militia draft of July 17, would be the likely result and a draft would bear hardest on the poorest citizens. They felt confident that the state legislature would reimburse the county when it met later. The appropriation would therefore constitute a sort of loan only.54 53

 The Tribune Almanac and Political Register for 1865 (New York: Tribune Association, 1865), 54. 54  York Gazette, July 26, 1862.

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Responding to the public demand, the county commissioners resolved to appropriate $16,000 for a $50 bounty for each recruit in the county. Other counties made similar moves, including the banner Democratic county in the state, Berks, which (also at the request of a citizen council) also appropriated funds for a $50 bounty.55 If not Democratic movements, these were at least nonpartisan. The decision for raising a bounty in York, for example, was of necessity nonpartisan because the borough government was split, three Democrats to three Republicans. As further encouragement for enlistments, York citizens raised money for soldiers’ relief, so that enlistment (or drafting) would not work too great a hardship on the poor. When the time came to fill the militia draft of 1862 in York, two wards had not met their quotas: the first was six men under, and the second, twenty-five. The fourth ward had exactly met its quota, but the third and fifth together were thirty-seven over. Because the militia draft was substantially still controlled by the state, Governor Andrew Gregg Curtin ruled that the whole borough of York be counted as one district for providing recruits. Thus the surplus in one ward could be applied against the shortfall in another; in that way the borough of York avoided the militia draft.56 Conscription in 1863 and 1864 met with few problems in York. There was never any significant practical opposition to the draft in the borough or the county of York. Elections for local government came annually, and the Democrats in March 1863 captured the borough decisively, electing the chief burgess and three of the five councilmen from the wards.57 Provocations for party animosity had increased in York, as they had everywhere in the nation. Some local men had been arrested by military authorities for disloyalty, and this border county met the announcement of the preliminary Emancipation Proclamation with expressions of racist fears of a future influx of freed African-Americans. Nevertheless, when resort to conscription came in 1863, York’s draftees, led by a marching band, paraded patriotically through town in December. The Democratic newspaper commented that the men “looked well,” though they had as yet not received their weapons.58 The atmosphere was festive, not tense, in this Democratic county. In the presidential election year of 1864, the Democrats held onto the chief burgess position in York, but they lost a previously Democratic 55

 Ibid., July 29, 1862.  Ibid., September 30, 1862. 57  Ibid., March 24, 1863. 58  Ibid., December 2, 1863. 56

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ward and the borough council stood at three–three once again. Succeeding draft calls posed greater threats to unity. A public meeting on July 18, 1864, urged the county commissioners to authorize a $50 bounty. The commissioners balked this time – despite passage by the state legislature of a bill that gave them authority to impose taxes to raise bounties.59 The borough of York acted to raise the bounty, for the legislature’s bounty bill had extended the taxing authority to a number of entities, including even school boards. The borough tested the people’s willingness to pay the tax by circulating a petition to each ward. All men subject to draft were to pay at least $25, with more prosperous men being assessed higher amounts. The expectation was to fill the local quota by paying bounties to substitutes from the fund raised by the special tax assessment. The council would also borrow money and repay it by January 1, 1865 from the taxes paid.60 The draft proceeded without incident in York. The borough went for McClellan in the presidential election that November by a vote of 977 to 792.61 Partisanship likely grew in overall intensity in York from 1861 to 1864, with the possible exception of the period surrounding the Confederate invasion of York in June 1863, which seemed to have the effect, briefly, of uniting the political parties. Through it all, York raised money to encourage volunteering. In the borough these were certainly nonpartisan measures, for Democrats controlled at least half the votes on the council throughout the period. To get any measure passed thus required some cooperation from Democrats. Philadelphia enjoys having perhaps the best of the local studies of the Civil War devoted to it, J. Matthew Gallman’s Mastering Wartime: A Social History of Philadelphia During the Civil War. Gallman proved the importance of old-fashioned voluntarism in many aspects of the city’s response to the war, and thus showed that the response did not rest on the advent of forces that anticipated the more powerful central state of the twentieth century. That old-fashioned quality was nowhere more salient than in military mobilization in the city. Civic voluntarism and not party competition determined the healthy response to the nation’s calls for soldiers. This was as much a matter of community activism and voluntarism as of individual response on the part of enlistees. The city council was, as Gallman puts it, “heavily Democratic,” but it consistently voted great 59

 Ibid., April 5, 1864.  Ibid., July 26, 1864. 61  Ibid., November 15, 1864. 60

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sums of money to raise volunteers and, later, to recruit volunteers for the sake of avoiding the imposition of a draft. It appropriated $500,000 at a time, and by the middle of the war, as Gallman points out, “war-related items” accounted for half the city budget.62 To look closely at Philadelphia’s efforts in the difficult summer of 1864 is to realize that the Democratic party suppressed its own partisanship to get behind measures to raise money. One sees as well the spirit of ingenuity, the energy, and the competitive civic pride that suffused the whole grand war effort. Philadelphia had to respond to the president’s call of July 18, 1864, with their share of the 500,000 men needed overall. Failure to meet quotas would result in the imposition of a draft on September 5. Despite the heated partisanship of a presidential election summer and the extreme conservatism of the city’s Democratic party leadership, the effort to raise Philadelphia’s quota for the draft call went forward without much partisan rancor.63 Political parties were almost never mentioned in discussion of the measures needed to raise by volunteering the quotas that would allow the city’s wards to avoid the imposition of a draft. Newspapers, charitably and accurately, referred to the wards that were lagging behind as poor rather than disloyal. They did not say that they were Democratic rather than Republican, or Copperhead rather than Loyal, terms that otherwise constituted the common coin of political debate at the time. The Republican Philadelphia Inquirer, for example, described the laggard first ward as the residence of a large population of poor men, mostly mechanics, whose labor was badly needed in the city. The paper made a plea for wealthy men to look beyond their own wards and help this one out.64 Tacit cooperation between men of different political parties gave free rein to America’s nonpolitical genius for clever financial and charitable schemes. In Philadelphia the sovereign remedy seems to have been a self-insuring scheme in which all men in a district who were enrolled (that is, who were declared by Federal authorities eligible for the draft) 62

 J. Matthew Gallman, Mastering Wartime: A Social History of Philadelphia During the Civil War, Ch. II, esp. p. 30. 63  Mark E. Neely, Jr., “Politics Purified: Religion and the Growth of Antislavery Idealism in Republican Ideology During the Civil War,” in Robert F. Engs and Randall M. Miller, eds., The Birth of the Grand Old Party: The Republicans’ First Generation (Philadelphia: University of Pennsylvania Press, 2002), 120, and Neely, “Justice Embattled: The Lincoln Administration and the Constitutional Controversy over Conscription in 1863,” 49. 64  Philadelphia Inquirer, September 27, 1864.

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contributed $25 each to a fund that would purchase a substitute for any contributor who was drafted and did not want to serve.65 In some wards, apparently, the amount of the individual contribution was set at $50. By September it could be reported that the “plan of giving certificates to citizens that for fifty dollars they will have a substitute furnished in case they are drafted, is working admirably.”66 Raising soldiers in Philadelphia in 1864 proved to be so nonpartisan that it was dealt with almost as a purely civic matter. The press treated the recruiting drives to escape the draft by raising volunteers not as a political question but as a project of civic boosterism and local pride. Recruitment was increasingly given a halo of sentimental patriotism. In one Philadelphia ward with its quota still unfilled as late as October 3, 1864, the bounty committee approached a lady to ask for a contribution. She said she had a son in the army and barely made ends meet by sewing. She had nothing to contribute, but “She said she lived only for her country and her son.” She had managed to save one gold dollar and offered it as a contribution. The committee refused to accept her last dollar, but when she insisted, they decided to auction the gold piece off as a “memento of patriotism.” The highest bid, $118, came from the commissioner of city property. Stories also circulated about a contribution to the bounty fund made by a little boy, and another raised by a benefit concert given by public school girls.67 Although the figures constitute an imperfect measure of partisanship in relation to raising bounties, it can be said that of the six laggard wards in Philadelphia that were still unable to meet their quotas by mid-October, three were Republican and three were Democratic.68 Partisanship offers little by way of explanation of mobilization. The Democratic newspaper in Cleveland explained the real motives rather well as early as 1862: “Then there is a State and County, and even a township pride in endeavoring to raise the regular quota without a resort to a draft.”69 Across the state, in Pittsburgh, which lay in a heavily Republican area, the pattern was similarly nonpartisan. Allegheny County, in which 65

 Ibid., August 26, 1864 (describing the plan in the tenth ward). If the fund fell short of the amount needed, it would be distributed evenly among draftees to ease the burdens on their families. 66  Ibid., September 5, 1864. 67  Philadelphia Inquirer, September 23 and 27, 1864, and October 4, 1864. 68  Democratic: 17, 19 (very close), and 25; Republican: 1, 7, 8. Compare election results and deficient wards in Philadelphia Inquirer, October 12 and 15, 1864. 69  Cleveland Plain Dealer, August 28, 1862.

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the city was located, was overwhelmingly Republican. Lincoln gained 16,725 votes as against only 7,878 for his opponents in 1860. His margin over McClellan four years later in the county was only a bit less, as Lincoln gained 21,519 votes and McClellan 12,414.70 Pittsburgh gave the Republicans 4,396 votes for president in 1860, and only 2,244 to the rest of the field.71 In 1864 Lincoln beat McClellan 5,016 to 3,234.72 Typically, the local newspapers reported Pittsburgh’s efforts to reach their quota of soldiers in the “local intelligence” sections, not in the heavily partisan pages of the paper devoted to politics and national news. The Pittsburgh Post, the local Democratic newspaper, regularly listed by name and amount of contribution the participants in the Allegheny County Bounty Fund, making participation a way of getting one’s name in the paper and assuring a reputation for public spiritedness. When the president called for another 500,000 men in the middle of the summer of 1864, the Post warned, “Our city had better rouse itself.”73 Thereafter the newspaper ran articles headlined “Bounty Meeting” and “Bounty Excitement.” Meetings, apparently, were held “almost every day.”74 High-pressure tactics were used. In nearby Allegheny City some wards made it a practice to make known the names of those who did not contribute to the bounty fund.75 Enrolled men in most wards were as much as required to contribute to a fund that would pay for a substitute in case one were conscripted.76 When enlistments lagged and the deadline for the draft drew nigh, the Post reported that the bounty would be capped at $300 so that potential volunteers would no longer hold out and wait for the amounts to rise. They rose anyway, in some wards to $500.77 Indulging in wishful thinking, the Post then described a “volunteering mania.”78 Political parties were never mentioned in the press as organizers of enlistment rallies or 70

 The Tribune Almanac and Political Register for 1865, 54.  Michael Fitzgibbon Holt, Forging a Majority: The Formation of the Republican Party in Pittsburgh, 1848–1860 (New Haven, Connecticut: Yale University Press, 1969), 2, 299–301, 366. 72  Pittsburgh Gazette, November 10, 1864. The paper gives the vote by wards, not for the city as a whole. 73  Pittsburgh Post, July 23, 1864. 74  Ibid., July 29, 1864. 75  Ibid., August 9, 1864. 76  Ibid., August 26, 1864. 77  Ibid., August 23 and 30, 1864. 78  Ibid., August 30, 1864. 71

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bounty fund-raisers. In fact, political parties were hardly mentioned at all in the reporting on the drive to reach the quota in this Democratic organ. But the press did not rely on sentimental patriotic appeals, either. Instead, the whole affair had a civic and businesslike tone, as though the people of Pittsburgh were watching attempts to reach the goal of a modern United Way drive. Civic pride was at stake, and failure would cast shame on the community. Pennsylvania’s capital, Harrisburg, located in the middle of the state between Philadelphia and Pittsburgh, was a sharply divided community. It was a Democratic town located in a Republican county, Dauphin County, and with Republicans controlling the resident governor’s office and the state legislature (by an extremely narrow margin). The Harrisburg press was deeply partisan, and this town managed, no doubt because of its status as the capital, to sustain two daily newspapers. Dauphin County gave Lincoln 4,531 votes to a mere 2,756 for his opponents in 1860, and he beat McClellan four years later 5,544 to 3,220.79 Harrisburg, by contrast, gave Lincoln only 1,191 votes to McClellan’s 1,396 in 1864.80 By the late summer of 1864, when the draft pressed down heavily on the nation, the Dauphin County commissioners had not provided for bounty payments to meet the quotas. In other words, the Republicans, who controlled the county, had shown little eagerness to help the community to avoid the draft.81 The situation was not simple, because the state legislature, which was narrowly controlled by Republicans, passed a measure in the spring that allowed cities, wards, election boards, or school boards to borrow money to raise bounties and to tax to pay the resulting debt. Harrisburg struggled, and some wards filled their quotas while others did not. Raising funds for bounties voluntarily brought uneven results. The Republican newspaper generously attributed the differences to the relative wealth of the wards (and not to their loyalty or prevailing party affiliation). Early in August citizens held a public meeting to urge the city council to appropriate money for bounties in Harrisburg. The Republican newspaper pointed out that “Under the plan adopted of assessing respectively the citizens of each ward, several of the wards will be unable to fill their quotas, for the reason that the great majority of the citizens thereof 79

 The Tribune Almanac and Political Register for 1865, 54.  Harrisburg Telegraph, November 15, 1864. 81  Harrisburg Patriot and Union, July 28, 1864. But Republicans charged, hypocritically, that Democratic counties often did not levy taxes to raise bounties. 80

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are working men, whose incomes prevent them from making extravagant subscriptions.”82 Public political solutions always ran the hazard of political party strife in this intensely political city. To a surprising degree, partisanship was avoided. When a public meeting urged the city council to deal with the problem, the council at first refused but agreed to meet the next evening to continue consideration of the matter. The problem was not necessarily political reluctance but rather legal limitations. It was clear that an appropriation to raise bounties adequate for all the wards would exceed the level of indebtedness permitted by the city charter. Nevertheless, the council agreed to appropriate $120,000 for $200 bounties for volunteers from the city. But the measure depended upon petitioning the state legislature for authorization to borrow an amount that exceeded the city’s chartered debt limit.83 The North could afford the expense, by comparison with the Confederacy, but the financial burden of raising soldiers by bounty was substantial. The Harrisburg city council’s proposal – against which not a protest was raised, from a fiscal standpoint – was to levy a 2 percent property tax on all citizens over 21 years of age in order to pay the 6 percent interest during the five-year life of the loan. A similar fund drive had already taken place to raise money for the people of nearby Chambersburg who had been burned out of their businesses and homes by a recent Confederate raid. Harrisburg as a precaution had emptied the state armory and packed up the state archives, and mustered the city’s able-bodied citizens, white and black, to repel Robert E. Lee’s invasion of the state in 1863. Despite many demands on their generosity and public spirit, Harrisburg citizens could still point with pride to their Union Relief Fund for the families of volunteers: The wife of a volunteer received $1.50 per week plus fifty cents per week for each child.84 The state legislature failed to pass a measure enabling cities to exceed their debt limits before their session ended. On August 27, the Harrisburg City Council (controlled by Democrats) went ahead and passed an ordinance appropriating $120,000 for bounties. The Democratic mayor signed it.85 The money, however, never made its way into the hands of any volunteer because Republicans challenged the measure in court. The Republican minority of the city council maintained that the appropriation 82

 Harrisburg Telegraph, August 6, 1864.  Harrisburg Patriot and Union, August 15, 1864; Harrisburg Telegraph, August 15, 1864. 84  Harrisburg Patriot and Union, August 16 and 24, 1864. 85  Harrisburg Telegraph, August 27, 1864. 83

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was unlawful, and, seeking an injunction against payment, they gained a quick decision from the judge, a Republican named John J. Pearson. In a reasonable ruling, Pearson pointed out that the statute permitting local governments to raise money for bounties was written with cities in general in mind and thus was not in itself meant to abrogate the particular restriction in Harrisburg’s charter limiting its indebtedness. He said that he hated to see volunteers go without bounty, but that the law did allow school boards and election boards in each ward to raise funds.86 That did nothing to relieve the poorer wards in the city. It seemed clear that without the ability to raise money through council appropriation, the draft wheel was going to turn in wards 1, 4, 5, and 6, as indeed it did near the end of September. Harrisburg failed, partly through the partisanship of the Republicans on the council, partly because the state legislature (also controlled by Republicans) failed the city, and partly because of fiscal sanity and caution about legality. Attempts to exploit the situation for partisan purposes proved irresistible, especially because Harrisburg had two daily newspapers, each hungry for political grist to fill its editorial mill every single day of the week. Even so, the partisanship did not reach the level of political spectacle. The Republican newspaper dwelt on “exposing” the city council and attempting thereby to let the Republican legislature and the Republican county government escape blame for failing to override the debt limit. The Republicans also charged that “nearly every ward and township in Dauphin County which gave a majority for union candidates at the Gubernatorial election, have filled their quota in the draft” and that in “the copperhead wards and townships, scarcely any troops had been raised.”87 The Democratic newspaper had focused defensively in July on problems throughout the state involving local funding for bounties, “It has become a rebuke with self-styled loyal persons and organs, to make the question of levying county tax for bounty purposes by Commissioners a political one. Some . . . consider the refusal or neglect of County Commissioners to levy tax as no less a crime than treason.”88 As Democrats eagerly pointed out, there was no such pattern in Dauphin County, home of Harrisburg, for there the county was Republican and yet bounty funds could not be raised there either.

86

 Ibid., September 8, 1864.  Harrisburg Telegraph, August 30 and September 8, 1864. 88  Harrisburg Patriot and Union, July 28, 1864. 87

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Thus in Harrisburg, at times, poor wards were labelled “Copperhead” wards, and the Democrats called their opponents “self-styled loyal persons,” pouring the heated rhetoric of national partisanship on complicated local conflicts over funding bounties. But such politicizing of mobilization even in 1864 was exceptional and, for the heavily politicized capital of Pennsylvania, rather restrained. In Dubuque, Iowa, recruitment escaped the major impediments of partisanship, despite the extreme nature of the Democratic party in the area. Like York County in Pennsylvania, Dubuque County was Democratic. Lincoln received 2,092 votes there in 1860, in contrast to the 3,059 cast for his opponents. McClellan shellacked Lincoln in Dubuque County in 1864, 3,318 to 1,742.89 Comfortable majorities and administration oppression made the Democratic party extreme. When the war began, the editor of Dubuque’s Democratic newspaper, the Herald, was Dennis A. Mahony. Mahony will be treated in the next chapter, but in this one we can note that Federal officials arrested him for opposition to the war, and whatever his beliefs about the war before the arrest, he was ever after a tireless agitator for civil liberties and an implacable foe of the administration on every issue. In the election summer of 1864 Dubuque’s wards staged rallies to raise money to purchase substitutes for poor men who might be drafted. The only Republican on the city’s board of supervisors opposed meeting the city’s quota for the draft call by paying bounties. He preferred conscription. Democrats on the board denounced the draft for driving away labor, disturbing the peace, and impairing prosperity. To avoid such ill effects, they voted $125,000 to pay $400 bounty to each volunteer. With the abolition of the $300 commutation fee by Congress, the only escape for a draftee was buying a substitute, but there was no way for a government to budget realistically to purchase substitutes for men on whom conscription would work a hardship because there was no way to know what a substitute might cost. It seemed better to attack the problem up front and raise the bounty level.90 The board of supervisors devised a funding scheme that proved controversial. The county issued short-term obligations called warrants. Citizens invested in them, and the money was used to pay bounties. The investors would be allowed to pay their taxes from the interest on the warrants (without using cash). If the citizen had no taxes to pay, then payment of interest would be in cash. Some 89

 The Tribune Almanac and Political Register for 1865, 62.  Dubuque Herald, September 15, 1864; October 2, 4, and 6, 1864.

90

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thought the system illegal, and the warrants immediately became the target of speculators (“sharpers,” the Democratic newspaper called them).91 But even Dennis Mahony’s home town managed to get Democrats to raise bounty money.

The United States Sanitary Commission There is nothing straightforward about writing on the subject of Civil War charity. For a generation, it has been a mare’s nest of controversy among historians. The major innovative charitable organization to appear in the war, the United States Sanitary Commission, was rediscovered and described in a basic work in 1956.92 Apparently the story of philanthropic work appeared too good to be true to George M. Fredrickson, and in 1965, in a brilliantly revisionist history of ideas in the Civil War, he attacked the Sanitary Commission as the creation of conservative and authoritarian elites who instituted a hard-boiled view of suffering in war as something to be managed rather than sympathized with. Fredrickson thus put the previously obscure Sanitary Commission on the map of Civil War historical controversy for good. Fredrickson characterized the Commission as emphasizing organization and leadership at the expense of compassion and democracy, and in many ways it was the model for Fredrickson’s view of the intellectual history of the war in the North, which held that it was a sort of triumph of conservatism.93 Fredrickson’s influential argument can be challenged on three points. First, at the very least, the United States Sanitary Commission deserved praise for confronting, as no other group or institution did, the central problem of war waged before the germ theory of disease: Deaths from disease exceeded deaths caused by enemy action by two to one. Casualties and suffering could be greatly reduced by speeding up the war to eliminate deaths caused by disease contracted while merely waiting in camps (which the generals would not do) or by improving military medicine and hygiene, which the Sanitary Commission worked on. Second, the Commission was not as hierarchical as it appeared. Matthew Gallman 91

 Ibid., October 7, 1864. Mahony himself, despite his extreme disaffection from the war, calmly explained the finance system in the pages of his newspaper. 92  William Quentin Maxwell, Lincoln’s Fifth Wheel: The Political History of the United States Sanitary Commission (New York: Longmans, Green, 1956). 93  George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (New York: Harper & Row, 1965), esp. Ch. VII “The Sanitary Elite: The Organized Response to Suffering.”

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has studied Philadelphia’s Great Central Sanitary Fair of 1864, one of the two largest fund-raising extravaganzas organized for the Commission, as an important embodiment of the organization. He has identified the many ways in which the activities of the Commission belied the hostile characterizations of Fredrickson: Despite the “hierarchical structure” of the organization, committees did most of the work and “enjoyed a wide latitude” of authority, and “all segments of Philadelphia society combined to make it a success.” In fact the Philadelphia fair, at least, “was essentially a grass-roots effort.”94 Although Gallman states as well that “voluntary involvement did not necessarily imply support for the war or for the Lincoln administration,” he does not address the problem of political parties or specifically identify the third crucial point for revising our understanding of the Sanitary Commission: it was nonpartisan in appeal. The organization obviously had to struggle to maintain such a stance. The leaders of the United States Sanitary Commission, though themselves mostly Republicans, knew that their organization must appeal to people of both political parties. The sanitary fairs turned out to be the public face of this workhorse organization, and there we can watch the struggle to maintain nonpartisanship. The culture of the fairs was distinctly Republican, but they attempted to put on a nonpartisan face most of the time. It can safely be said of the Philadelphia Sanitary Fair that it was self-consciously nonpartisan. The stance was spectacularly and symbolically in evidence at the grand opening for the event on June 8, 1864. Because of the city’s importance to neighboring New Jersey and Delaware, the governors of those states attended the opening, along with the governor of the host state, Andrew Gregg Curtin of Pennsylvania. The Delaware governor was a Republican, like Curtin, but New Jersey’s Joel Parker was a Democrat. All were on their nonpartisan good behavior at the opening. The press’s description of Parker’s brief remarks noted that he referred “to the political topics of the day” and “urged forbearance and a toleration as to differences of opinion.” Governor Curtin, in his statement, stressed the New Jersey governor’s loyalty, saying, “I welcome your loyal heart as the representative of the loyal people of your State. And now, when the whole country is trembling under the rude shocks of armed rebellion, the greatest known in history, all difference should be forgotten, for the work is big enough for all.”95 94

 J. Matthew Gallman, Mastering Wartime: A Social History of Philadelphia During the Civil War, 155, 159, 163. 95  Our Daily Fare, June 8, 1864, p. 7. This newspaper, issued only for the duration of the fair, was continuously paginated, and future reference to it will be by page number only.

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“Loyal” was a word of great significance in the election summer of 1864. The Loyal Publication Society was producing political pamphlets to use against the Democrats by the tens of thousands of copies. And Democrats grew alarmed at the organization of “loyal leagues” across the North. Fear of secret disloyal organizations like the Knights of the Golden Circle animated Republican activity, especially in the states of the Old Northwest. Shrill and generally baseless accusations of Democratic disloyalty lay at the heart of Republican campaign strategy for the presi­ dential election of 1864. Curtin’s welcome, stressing Parker’s “loyal heart,” was quite a gesture in that overheated political climate. The Philadelphia fair was vast enough in scale and of sufficient duration to generate the publication of a daily newspaper, called Our Daily Fare. The pun in the title perfectly epitomized the tone of the sanitary fairs. They were at bottom religiously inspired, although anything but solemn; they projected a light-hearted image of public amusement. Caring for the sick and wounded was serious work, all right, but raising money for that purpose could be fun. Our Daily Fare balanced descriptions of the great work of medicine and relief or succor performed by the Commission with light-hearted poetry, and observations on fair-goers’ enjoyment in seeing elaborate exhibits and decorations, and their indulgence in good food and delicious delicacies. Like the speakers at the fair’s opening, the little newspaper skirted partisanship. But the culture of the Commission was decidedly Republican. The president of the national organization was Henry Whitney Bellows, a Unitarian minister who supported the Republicans and played a major role in devising the notion of loyalty as a distinctly Republican value. The treasurer was George Templeton Strong, another staunch Republican.96 Board member Charles Janeway Stillé in 1862 wrote one of the most important defenses of the Republican administration’s war effort, How a Free People Conduct a Long War: A Chapter from English History, a tonic for Republicans at a point of low public morale in the North. Later he wrote a memorial of the Philadelphia fair and a history of the United States Sanitary Commission. He contributed heavily to Our Daily Fare.97 Such people naturally found it difficult to see the Democrats in an altogether impartial light. Since the tone of the fair itself and of its newspaper 96

 George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union, 100–102. 97  Ibid., 141–143; Frank Freidel, ed., Union Pamphlets of the Civil War, 1861–1865, 2 vols. (Cambridge, Mass.: Harvard University Press, 1967), 1:381–403.

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was one of light amusement, the occasional disparagement of Democrats was never bitter and eschewed the acid criticism of the daily and weekly Republican press. But it was present. Here is an example, the most conspicuous one in the whole run of Our Daily Fare. One “Calliope Smith” wrote the editor about his efforts to compose a poem praising the greatest general of the war. He said that he began this way: Oh! George B. McClellan, That great little man, Is marching on Richmond As far as he can!

Ensuing events, however, caused him to change it thus: Oh! George B. McClellan, That great little man, He holds back from Richmond As hard as he can!98

McClellan was not yet the official Democratic nominee for president when that was written, and the tone was humorous. Both Democratic and Republican newspapers promoted the sanitary fairs, but there was, once in a great while, some grumbling, and that all came from Democrats. More than one Democratic complaint was registered about the Pittsburgh Sanitary Fair in the spring of 1864. Although “all parties and sects have entered into this charity,” the Pittsburgh Post complained, administrators of the fair refused to take down an offensive caricature hung near an imperial-sized photograph of McClellan.99 The New York World expressed their reservations about the administration of the United States Sanitary Commission this way: “The Sanitary Commission must purge itself of the taint of partisanship.”100 They did not think it should be done away with, only scrubbed clean of partisanship. Nonpartisan support was the norm. The Democratic Erie Observer, of Erie, Pennsylvania, made observations on the great Philadelphia fair only from a distance, of course. Erie itself had given up on the idea of holding its own fair because it was simply “too big a thing for Erie.”101 As Philadelphia planned for their fair, the Observer printed a letter of almost 98

 Our Daily Fare, 16. For another humorous but slighting reference see p. 22.  Pittsburgh Post, June 10, 11, and 13, 1864. Pennsylvania’s Penn Argus and Westmoreland Democrat reported complaints from people returning from the Pittsburgh fair that it was “nothing but an Abolition Show Shop.” See the issue of July 13, 1864. 100  New York World, November 5, 1864. 101  Erie Observer, February 20, 1864. 99

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a full column’s length from the organizers asking contributions of a single day’s pay from laborers and a day’s revenue from great employers.102 Later, at the time of the fair’s closing in Philadelphia in the summer, the Observer noted, with state pride, the commendation of Philadelphia’s work that came from a newspaper in New York (the Republican Evening Post): “As a citizen of New York, I might wish that Philadelphia should be second to her in all good deeds; but in her Sanitary Fair she is first.”103 The Democratic Cleveland Plain Dealer was typical for its nonpartisan reserve in regard to that city’s fair. Well before the local fair opened in Cleveland, the Plain Dealer commended the work of the Sanitary Commission. “The Sanitary Movements,” the editors wrote on January 9, 1864, “seem to have touched the right chord in the popular heart. No measures put in operation since the beginning of this war have met with such enthusiasm on the part of the people.”104 The editors treated the Great Sanitary Fair of Northern Ohio, which opened on February 22, 1864, as though it were the annual state fair, something to be promoted and reported on exhaustively and uncritically. Their unqualified support was the more remarkable because the Ladies’ Soldiers’ Aid Society of Northern Ohio, the branch of the Sanitary Commission that organized the fair, did very little to moderate the provokingly Republican tone of the event. First off, they appointed as the editor of the fair’s daily paper the editor of the local Republican newspaper, the Leader, which was engaged in running feuds with the Plain Dealer. The Democratic paper decided to deal with the choice with levity.105 Finally, the organizers of the fair picked as the featured speaker near the end of the fair’s run, Anna Dickinson, the abolitionist Quaker orator, who was anathema to Democrats. The Plain Dealer patiently and dutifully reported on her speech, characterizing it resignedly as “a strictly abolition affair.”106 Despite it all, the Plain Dealer, from the opening to the close of the fair, reported enthusiastically and in detail the events and the sights and the goods available. In fact, the editors started early, building enthusiasm and anticipation weeks before the opening by reporting on the construction of the temporary buildings for the fair and explaining how to contribute goods for exhibition and sale. When the fair opened, the newspaper devoted four and one-half 102

 Ibid., April 23, 1864.  Ibid., June 25, 1864. 104  Cleveland Plain Dealer, January 9, 1864. 105  Ibid., February 20, 1864. 106  Ibid., March 8, 1864. 103

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columns to coverage of it. Naturally, coverage shrank with the passage of time for the simple reason that all the exhibits eventually got described. Through it all, the Plain Dealer did not utter a partisan word about the event. In the end, even tacit agreement to observe the boundaries of politics and to mobilize for the war, pay for it, and care for its victims without attention to political party left plenty of opportunity for the dogged partisans of the nineteenth-century party system to vent and threaten and roar. The noisy rhetoric, in fact, has all but deafened historians to the low murmur of steady nonpartisan work for victory. But that work was proof, as the next two chapters will show, that the Democratic party formed a loyal opposition in the Civil War.

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chapter 2 The Elections of 1862, the Emancipation Proclamation, and the Invention of the Democratic Party Myth

Although the role of nonpartisanship was essential to victory for the North, what is more noticeable to modern readers is the cacophonous partisanship of the era. The noise of politics began to rise to deafening levels in 1862, the year of the first important elections since the fall of Fort Sumter and the year President Lincoln announced the preliminary Emancipation Proclamation. It is only natural for historians to connect the coincidence of these two factors in accounting for the rise in partisanship. On July 22, 1862, President Lincoln astonished members of his cabinet by reading to them a draft of an Emancipation Proclamation. In the ensuing discussion Post Master General Montgomery Blair warned him that to issue the Proclamation then, in the late summer, would cause the Republicans to lose the off-year elections in the autumn. Lincoln did decide to delay the Proclamation, but not for that reason. Secretary of State William H. Seward said that the administration should wait for a military victory before announcing emancipation – the cabinet meeting came in the wake of the awful defeat of Union forces on the Peninsula in Virginia – so that the new policy would appear to come from strength and not from weakness. Lincoln decided to wait for a military victory. We can admire Lincoln for refusing to delay the Proclamation for reasons merely of party advantage. It was already long overdue in the eyes of African-Americans and abolitionists. Yet Blair was serving the  president well. The postmaster could see what was likely to come if the Proclamation were issued, as indeed it turned out to be, before the off-year elections. The Democrats would surely campaign vigorously in 45 Downloaded from https://www.cambridge.org/core. University of Sussex Library, on 01 May 2019 at 10:43:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139567213.003

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those circumstances. Blair proved to be correct about the results of those post-Proclamation elections in the autumn of 1862: The Republicans lost twenty-eight members of Congress.1 President Lincoln did not lift a finger to help his fellow Republicans at the polls in 1862. Surely the best strategy to smooth the way for emancipation was to capitalize on Republicans energized by the fulfillment of their antislavery goal and win a mandate for the controversial policy. But Lincoln did nothing to lead or to inspire the Republicans. He did not give any speeches. He did not write any public letters. He did not frank any pamphlets. From all available evidence, he did nothing behind the scenes, either. How can that be? What on earth was Lincoln thinking? Blair had given the president fair warning. Surely, the questions of preparation for emancipation and preparation for the autumn elections are overlapping and indistinguishable.2 Blair saw that right away. Why did Lincoln not do something about it? We will never know for sure, but one thing seems certain: that winning off-year elections would have been the best possible way to guide the Proclamation along the rocky road of racist doubts and Democratic opposition.

The Off-Year Elections At this point, historians encounter a major barrier to answering these questions: the elections of 1862 have been little studied. In fact, as recently as 2001, when a team of political scientists set out to examine these very elections, they discovered that “little is known about general

1

 Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment (University of Chicago Press, 2015), 162–163. Richards calculates that the harm done emancipation was greater even than that figure suggests because the Democrats also replaced a few moderates in their party’s existing delegation with more extreme men. Richards’s model for the elections is that they constituted a referendum, more or less, on the preliminary Emancipation Proclamation, and he sees mainly future opponents of the Thirteenth Amendment in the men elected. 2  This chapter amplifies the argument I made elsewhere in a narrower context about the concept of “preparing public opinion” for the Emancipation Proclamation. Such an idea assumes a base of public opinion not already riven, as nineteenth-century American public opinion was, by party. Republicans needed no “preparation” in the sense of persuasion to accept a new policy they had longed to see announced, and there simply was no preparing the opposition party for this Republican initiative. See Mark E. Neely, Jr., “Colonization and the Myth that Lincoln Prepared the People for Emancipation,” in William A. Blair and Karen Fisher Younger, eds., Lincoln’s Proclamation: Emancipation Reconsidered (Chapel Hill: University Press, 2009), 45–74.

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electoral politics during the war.” The whole subject was, to use their sobering term, a “void.”3 It has been widely assumed by historians that the Emancipation Proclamation was the decisive issue in the elections. Allen C. Guelzo, who has written the definitive history of Lincoln’s Emancipation Proclamation (2004), saw “an electorate .  .  . inflamed by the Proclamation.” “The Proclamation had breathed new and toxic life back into the Democrats,” he said. “Looked at coldly,” Guelzo concluded, “the timing of the Proclamation amounted to political suicide: Lincoln was putting the most highly charged issue of the war before the voters, and the voters into the hands of the opposition, without any time for the shock to wear off.”4 In the most recent treatment of the subject, Leonard L. Richards, too, sees the Proclamation as galvanizing Democratic opposition in the offyear elections. Richards argues that the Proclamation offered the Democrats “the smoking gun . . . they could now prove to voters that the Black Republicans had no intention of restoring the Union. No, they said, the Republican goal was clearly black equality. And with that argument, Democrats ran vigorous campaigns, especially in the lower North.” Richards offers as an example one district in Ohio and concludes, with the pundits of the day, that the situation there was “typical.” The local Democratic candidate for Congress “brought up the preliminary Emancipation Proclamation at every opportunity and won the district by more than 12 percent. The proclamation, everyone agreed, was ‘decisive.’” Richards adds that “many Republicans” agreed that it was decisive.5 But how can that be? Why did the Proclamation “inflame” only the Democrats? Why did the Republicans not catch fire too? Why would 3

 Jamie L. Carson, Jeffrey A. Jenkins, David W. Rhode, and Mark A. Souva, “The Impact of National Tides and District-Level Effects on Electoral Behavior: The U.S. Congressional Elections of 1862–63,” American Journal of Political Science, 45 (October 2001), 887– 898. This, the most comprehensive study of the elections, focused on factors such as candidate quality, the impact of battle casualties suffered by local military units, and polling dates in electoral districts. In short, the authors emphasized the importance of the local and specific at the expense of sweeping national issues. For an argument stressing the role of such issues see Thomas E. Rodgers, “Copperheads or a Respectable Minority: Current Approaches to the Study of Civil War-Era Democrats,” Indiana Magazine of History, 109 (June 2013), 114–144. 4  Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America (New York: Simon & Schuster, 2004), 187–189. 5  Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment, 161, 162. On emancipation and the elections see also James M. McPherson, Battle Cry of Freedom: The Civil War Era (New York: Oxford University Press, 1988), 561 and n.

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the Proclamation energize the Democrats into opposition but not cause the Republicans to show their enthusiastic support? Would Republicans really admit after the elections that the centerpiece of their policy, emancipation, was something that the American voters did not want? In truth the Democrats exploited many issues, not the least of them the want of success in defeating the rebellion. And they had decided to organize for the elections well before the announcement of the preliminary Emancipation Proclamation. The survival of the party was at stake. The particular issues did not much matter. To the Democrats, there were plenty among which to choose.6 There is one point about nineteenth-century politics in America on which all historians are agreed: Voter turnout was consistently high from 1840 through 1892. That was especially true in presidential elections but only somewhat less so in off-year national elections.7 The key obviously lay not in policies or personalities, since they changed from election to election and turnout did not. Policies and personalities did not energize American voters as much as electioneering did. The Lincoln administration had the right policy for its party base, emancipation, but it did not electioneer vigorously in 1862, and that proved nearly fatal for the Republicans. The preliminary Emancipation Proclamation was President Lincoln’s first great public policy initiative, and he had to learn that government pronouncements did not necessarily have dramatic effects on voting behavior without accompanying promotion, that is, electioneering to organize support and channel enthusiasm. As for the negative effects of the Proclamation – the reaction of the Democrats – it is too easy to assume that the urge to preserve white supremacy explains Democratic voting behavior. Richards, for example, identifies “white supremacy” as one of three “core beliefs” of the old Douglas Democrats (the Northern wing of the Democracy), and that fundamental ideology apparently explains the results in 1862 for him.8 The term “white supremacist” is too imprecise for describing the 6

 Phillip S. Paludan argues that “Democrats had won because Republicans stayed at home,” but he sees the Republican voters as perhaps “protesting.” He did not consider the more likely possibility of apathetic inaction. See Paludan, “A People’s Contest”: The Union and Civil War, 1861–1865 (New York: Harper & Row, 1988), 101. 7  Joel H. Silbey, The American Political Nation, 1838–1893 (Stanford University Press, 1991), 144–145. 8  Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment, 166, 180.

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i­ dentity and policy of the Democratic party at the time of the preliminary Emancipation Proclamation when all the white Southerners except the handful left in the border states were no longer present in party councils or at the polls. This book will examine the effect of that on racism in the Democratic party in the next chapter, but for now it will suffice to say that although the plow of emancipation had to be pulled through a heavy and recalcitrant soil of white racism, that plow did not shatter on Northern public opinion, or ultimately, stop moving. We have no public opinion polls from that era, only election results and abundant newspaper opinion, to measure American attitudes and views, but it is striking that even those limited avenues to knowledge have been inadequately examined. We are staring at what could believably be described as a “void” even in the twenty-first century. In 2001, when the team of political scientists, armed with the latest in statistical technology, tackled the problem of the elections of 1862, they pointed to factors other than race and the Proclamation as decisive. Their emphasis fell on the local and circumstantial, on the quality of candidates recruited by the parties, for example. Even with their generally nonideological focus, they overlooked yet another factor vital to electoral success: organization and effort, what I call electioneering. Electioneering, as it turned out, might vary according to circumstances. Certainly it might change in nature during a great war. The propensity of the preliminary Emancipation Proclamation to arouse both support and opposition was likely a wash. Electioneering, as it turned out, was not. And the blame for Republican failure in that department lay substantially at Lincoln’s door. Abraham Lincoln was an experienced politician, to say the least, the sort of nineteenth-century man we would expect always to put forth vigorous efforts to win elections. Furthermore, he was blessed with the ability to shape those efforts in the most persuasive and politically effective ways. He had been an energetic and shrewd participant in a full generation of election cycles over a thirty-year span, and over the entire life of one party system (Whig v Democrat) and well into the life of a second (Republican v Democrat). Yet when he became president and entered the greatest war in all of American history, he changed. Suddenly in 1862, for the first time in his long political life, Lincoln did nothing about winning an upcoming election. He trusted the opposition to be loyal. He apparently figured the Democrats would relax their effort to gain office under such pressing national circumstances. He never dreamed that the Republicans might not bother to go to the polls to show their enthusiasm for the Proclamation. Lincoln proved to be dead wrong.

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The failure of the Republicans to turn out (an unexplained phenomenon) was as much to blame for the results as the Democrats’ strenuous efforts to resurrect their party. Many Republicans commented on the low turnout afterward, but they had ready at hand a convenient, if improbable, explanation: Republican voters had volunteered for the war and were in the ranks and not at the polls on election day. The Democrats had skulked national service, stayed home, and voted.9 It was a satisfying explanation that impugned the patriotism of the opposition party and did not call into question the popularity of any Republican policy, including emancipation. This key period of Lincoln’s presidency, the last six months of 1862, was marked, strikingly, by a temporary loss of political mastery, induced, perhaps, by the trauma of repeated military disasters in Virginia and a certain respect for the presidential office as a station above the political fray. After McClellan’s failure on the Peninsula in June 1862, Lincoln made one political mistake after another. Whatever the reason, when the president loses his grip on politics, it spells disaster for the rest of the party. Off-year elections had never been a triumph for the party in power anyway.10 But it is not always as clear that the fault lay with failure of presidential leadership and want of electioneering effort. The Republicans were caught off guard, were in disarray, and managed in many states to organize only a feeble canvass. Even before describing the Republicans’ state of political confusion in the autumn of 1862, we need to explain this surprising phenomenon, which, after all, occurred in a party led by old Whig and Democratic political hands who had abundant political experience and skills – men like Lincoln and Seward – and not by new men in politics. The party’s shrewd leaders had only recently managed to organize a new party that could capture the presidency on their second try. How could they have gone to sleep politically? The explanation is the war. In particular, that explanation lies in a belief widely shared in American culture at the time: Political parties, 9

 Leonard Richards, for example, notes that both the Chicago Tribune and the New York Times, stalwart Republican newspapers from different wings of the party, blamed the election results on low Republican turnout due to absence in military service. See Who Freed the Slaves? The Fight over the Thirteenth Amendment, 162. 10  James M. McPherson makes the argument that the elections were not a disaster when the results are studied in detail and the comparison with other off-year elections is made. So he does not say that the Proclamation was to blame, and he appears to put some credence in the excuse of “absence of soldiers at the front.” See McPherson, Battle Cry of Freedom: The Civil War Era, 561–562. He does not mention the low voting totals of the Republicans.

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people had been taught from the earliest days of the republic, should not compete in times of dire national emergency. The two-party system, though it was emerging from a period of disorganization and confusing party alignments in the 1850s, was in better shape than it appeared to some contemporaries at the time.11 From all evidence – in the vigorous state of the country’s partisan newspapers, in the continuing high level of voter turnout, and in the increasingly colorful and elaborate expressions of party activism in ritual and fanfare – party feeling and attachment remained powerful among the American people. Still, the parties – voters, leaders, press, and all – labored for a time under an odd and temporarily effective cultural constraint. Partisan organization, feeling, and activity appeared, after a long history of party conflict stretching back almost to the origins of the republic at the end of the eighteenth century, to be normal – in times of peace. But there had always been doubts about the propriety of party competition in times of war. Even party men themselves at times had their doubts. To encounter such a paradox in the American party system is not unique to the history of the Civil War period. At the very beginning of the republic, politicians established and organized parties, complete with partisan newspapers, and practiced vigorous electioneering, all the while believing in their heart of hearts that political parties were an evil, and dangerous to republics. Such was the daily work of Thomas Jefferson, James Madison, and Alexander Hamilton. Abraham Lincoln was a practicing politician and no political theorist, but even he, in an unguarded moment, revealed his own adherence to the culture’s standard understanding of the role of political parties in war. When he gave a eulogy for Henry Clay in Springfield, Illinois, on July 6, 1852, Lincoln explained the deceased statesman’s partisan career by observing that “A free people, in times of peace and quiet – when pressed by no common danger – naturally divide into parties. At such times, the man who is of neither party, is not – cannot be, of any consequence. Mr. Clay, therefore, was of a party.”12 To Lincoln, apparently, political

11

 Adam I. P. Smith goes too far when he says, “There was simply no clear-cut two-party system in most of the North, throughout most of the war.” Smith, No Party Now: Politics in the Civil War North (New York: Oxford University Press, 2006), 161. It seemed very clear, for example, to the editors of the partisan press throughout the country for most of the war that there were two parties, and which one each paper identified with. 12  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, New Jersey: Rutgers University Press, 1953–1955), 2:126.

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parties were natural – in times of peace – but threat from a common danger would make them unnatural. The “no party” sentiment that emerged from such common cultural beliefs during the Civil War has not gone unnoticed by historians, and at least one whole book has been based on arguing for the importance of its effects on the political history of the war.13 In general, however, emphasis on the importance of the no party ideal has focused on the Republicans’ exploitation of it for their own political benefit during the war. Republicans wrapped themselves in the flag and denounced Democrats as traitors, in short. The point to date has been that Republicans exploited the ideal in order to delegitimize the opposition. The Republicans certainly did that as a response to persistent Democratic organization. What has not been pointed out is that the Republicans’ adherence to the old assumptions about the impropriety of normal party competition during war at first proved not to be beneficial to their party. In fact, sincere belief in the ideal caused them to relax their own partisan behavior in the first major elections to occur during the war, the off-year ones of 1862. At the same moment the Democrats, under the pressure of recent electoral defeats, the defection of hordes of their number to the Confederacy, and government restrictions on civil liberties in the North which seemed to them to be aimed at eliminating the loyal opposition, were discovering the necessity of continuing to operate in stubborn old familiar ways in criticizing the other party and by maintaining their organization intact. In other words, Republican belief in the impropriety of party competition during war was enough to cause them to relax their political efforts in the off-year elections of 1862. Only want of effort will explain the party’s appallingly erratic performance that autumn. Obviously, there was no national leadership, because the efforts varied greatly from state to state. Take, for example, Lincoln’s home state, Illinois. As early as the first week of September Republican office-holders of national importance were beginning to take alarm about Illinois. Lyman Trumbull, one of the state’s senators and an old hand at politics, wrote the president a letter, the remarkable quality of which has been too long overlooked: The Democrats are organizing for a party contest this fall[.] They have called a state convention and are calling congressional and county conventions of a purely party character throughout the State. The [Democratic] party in Ill. as you 13

 Adam I. P. Smith, No Party Now: Politics in the Civil War North. In treating the elections of 1862 Smith deals more with issues than with the erratic voting totals.

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must be aware from their course in the [Illinois] constitutional convention last winter is under the control of leaders who sympathize with the South & if they get control of the State, Ill. which has done so much for the Union in this struggle, will be paralyzed, if her influence is not thrown positively against the government. This must not be, & to thwart it a counter organization is a necessity.14

Was there no “counter organization” already existing in Illinois? What, after all, was the Republican party? This letter can be explained only by the underlying belief in relaxation of party conflict during national emergency. Trumbull believed in it himself. Thus one of his regular correspondents, John M. Palmer, said to Trumbull in the autumn of 1861, “I think like you that parties are dead in Illinois.”15 In this period of party détente, Republicans – generously, in their point of view – gave some offices to Democrats, but that only demoralized party workers in their own ranks. Republican activists complained that some in the party “would not work at the election”; “They said it was no use, if we carried the election, that our head men would give all the places to the democrats.”16 Confused Republicans in the state were not sure whether to call a state convention or not.17 Trumbull was all for it in the end, and the Republicans held a convention. But some of the party faithful thought that the candidates had been chosen with an eye to mollifying Democrats.18 Ardent partisans felt that any such moves weakened desire to work at the polls. As one old party veteran warned back in December 1861: [W]e must not allow our magnanimity to let the State Legislature be lost to us. An Old Democrat puts his party before his religion, God, or Country, and with good intentions at that[,] such are the anomalies of human life, and however the majority of the party have acquiesced in this war there are enough of them left to carry an election in the lukewarmness or negligence of their opponents.19

Lukewarmness and negligence were apparently the actual result of this history on election day in Illinois in 1862. The Republican vote in the state fell a catastrophic 30.2% from its 1860 level. 14

 Lyman Trumbull to Abraham Lincoln, September 7, 1862, Abraham Lincoln Papers, Library of Congress, microfilm edition, reel 41. 15  John M. Palmer to Lyman Trumbull, October 13, 1861, Trumbull Papers, Library of Congress, microfilm edition, reel 11. 16  William Jayne to Lyman Trumbull, June 22, 1862, Trumbull Papers, ibid., reel 13. See also Jayne to Trumbull, June 22, 1862. 17   W. C. Flagg to Lyman Trumbull, July 11, 1862. See also Joseph Medill to Lyman Trumbull, August 26, 1862, Trumbull Papers, ibid., reel 13. 18  J. H. Moyhouse to Lyman Trumbull, November 26, 1862, Trumbull Papers, ibid., reel 13. 19  John Barclay to Lyman Trumbull, December 14, 1861, Trumbull Papers, ibid., reel 12.

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If we take a more important state, Pennsylvania, the pattern is similar, if a little less dramatic. We can detect the same element of surprise at the prospect of Democratic organization for the off-year elections. Thus Thomas E. Cochran wrote from Pennsylvania to Salmon P. Chase in August 1862, “it cannot be disguised that the former supporters of Breckinridge, with such of the Douglas men – by no means an inconsiderable number – as cling to their party attachments, are re-organizing in this state with great vigor and determination.”20 Overall, the Republicans in Pennsylvania in 1862 suffered a 19.5% decrease from voting levels achieved in the presidential election of 1860. The Republican performance in another giant state, Ohio, was even worse; Republican voting fell 22.8% from 1860 presidential levels.21 In New York it fell by 18.4%. In 1862 the Republican vote fell more than 20% from 1860 levels in Maine (27.5%), Wisconsin (over 30%), Michigan (over 21%), Minnesota (over 28%), and Massachusetts (20.2%).22 It fell 19.3% in New Jersey.23 Except in the Far West, the decline exceeded 13% in every state except Connecticut (10.1%), Iowa (6.2%), Rhode Island (as much as 8.6% despite running unopposed), and Vermont (11.4%). Thirteen per cent is a significant figure because political historian Joel H. Silbey puts at 13% the normal fall-off in voting in off-year elections from presidential ones.24 In a majority of the states, then, the Republicans performed worse than normal, and in some of them much worse.

20

 Thomas E. Cochran to Salmon P. Chase, August 7, 1862, Papers of Salmon P. Chase, Library of Congress, microfilm edition, reel 22. 21  This measures the vote for secretary of state, the highest statewide office up for election in 1862, with the presidential vote of 1860. The parties were sufficiently disciplined in the middle of the nineteenth century that voting analysts can use an office like secretary of state to measure voting in the absence of a gubernatorial race. A comparison of the Republican vote for Congress in 1862 with 1860 voting levels shows an even greater decrease, but the computation is made difficult by a Republican party split in James Ashley’s district in the Western Reserve, a heavily Republican area of the state. 22  The Massachusetts computation is based on the votes for members of Congress rather than governor, because the Republican voting for the governor fell even more. 23  Based on the votes for Congress in 1862 compared with presidential voting in 1860. 24  Joel H. Silbey, The American Political Nation, 1838–1893, 144–145. Average turnout for presidential elections was about 78%; for off-year elections it was a little below 65%. Silbey does not chart any standard differential between incumbent and challenging parties in turnout in off-year elections. The reason is likely that turnout is measured against population, and without voter registration, differentials in turnout by party are impossible to compute. The figures for Republican voting in 1862 in this chapter exclude the border states. In general the figures here compare voting for statewide races in 1862 against presidential voting in 1860.

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Meanwhile, the Democrats’ revival was working. In Pennsylvania, for example, 208,412 men voted against the Republicans in the presidential election of 1860. In 1862, 219,140 Democrats voted. In 1863 290,096 Democrats voted in the gubernatorial election. Finally, in the 1864 presidential election, 288,657 Democrats voted. The Democrats improved steadily up to the presidential election year, even over the presidential level of 1860; they did not experience any off-year fall-off at all. In some places the Democrats’ resurgence disguised the Republicans’ plunging vote. If one calculates the nearest thing to turnout for these elections, that is, combining the votes of both parties, then the rise in Democratic voting cushions the impact of the Republican fall in the total.25 But computations based on examining one party’s voting experience at a time reveal an almost wildly variable election in 1862. National leaders could not mandate state policies for their parties, and local accommodations of “no party” sentiment – uniting on candidates or running Republican candidates who were less obnoxious to Democrats – were exactly that, local and variable. In 1862 the Democrats worked to recover from their national party split of 1860 and were determined to maintain their organization throughout the Civil War. They were decidedly in rebuilding mode. The Republicans, on the other hand, simply relaxed in 1862. The explanation lies in cultural beliefs about the proper operation of political parties in wartime. Republicans believed that the Democrats would not have the gall to contest the elections as vigorously as usual and simply did not put out the customary effort to get Republicans to the polls on election day. Democrats, on the other hand, could not help being suspicious of the “no party” idea, as a Trojan horse. They feared disappearing altogether as an organization, and they had rebuilding to do after their failure in 1860, the first in a presidential election in over a decade. Many Republicans awoke too late to avert political defeat in 1862, among them the president, who apparently never recognized the vigor of Democratic organization until the bad results of the elections were in. While the Democrats determinedly held on to their organization in 1862, the Republicans handed them the gift of inattention and naïve overconfidence. It would not happen again.26 25

 It is impossible to compute turnout in elections held between census years. Turnout is a percentage of the eligible electorate. Thomas E. Rodgers declares the Republican decline typical in “Copperheads as a Respectable Minority: Current Approaches to the Study of Civil War-Era Democrats,” 131–2. 26  One of the assumptions of The American Political Nation, 1838–1893, based on the discovery of consistently high turnouts in the nineteenth century, is that elections were

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The belief about the relaxation of party conflict in wartime explains Lincoln’s want of preparation in the late summer of 1862. He relaxed also. Or rather, he felt it safe to focus on national problems such as finding a commander for the Army of the Potomac, and he let the elections take care of themselves. Such an explanation also serves to undermine any simple view that the preliminary Emancipation Proclamation proved unpopular.27 The announcement of the Proclamation cannot explain low Republican turnout. Emancipation lay close to the soul and purpose of the whole Republican party. Its delay might have caused dismay, but surely not its implementation at last. How could the Proclamation cause disaffection among Republicans? How could this miraculous achievement lower their morale and sap their enthusiasm to work for the party at the polls? Opposition to emancipation might have energized the Democrats, so that they did not suffer a falloff in vote in a non-presidential election year, but their energy was greatly increased in 1863 – well over the levels of 1862 – and news of emancipation by the autumn of 1863 was hardly fresh. In 1862 they were mending their organization as much as they were responding to particular events or issues. The election post-mortems among Republicans after the 1862 defeats were unusual. The president had received post-election-loss letters before, of course. After Stephen A. Douglas defeated Lincoln in the Illinois senate race in 1858, Lincoln received post-mortem letters, and they were typical of the many similar letters written after failed election efforts in the long history of the American two-party system. They offered the defeated candidate solace and sympathy. They admitted no errors of principle in their party’s platform or ideology. They blamed defeat on fraudulent voting and on lavish expenditures of money by the opposing party.28 consistently hard fought. That same assumption had been at work in Silbey’s history of the Democratic party in the Civil War era. There he says of the 1862 elections that both the Democrats “and their opponents fought each other energetically.” He realized that “it was Republican stay-at-homes who depressed that party’s proportion of the vote to the benefit of the Democracy,” but in a book dealing with the Democracy and not with their opponents he did not need to offer an explanation for the Republican performance. See A Respectable Minority: The Democratic Party in the Civil War Era, 1860–1868 (New York: W. W. Norton, 1977), 143, 145. 27  Louis P. Masur makes the point that the Proclamation might have hurt in some places but it surely helped in others, and those are seldom noted. See Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union (Cambridge, Mass.: Harvard University Press, 2012), 161. 28  See, for example, M. M. Inman, November 9, 1858, and William H. Randolph, December 23, 1858, to Abraham Lincoln, Abraham Lincoln Papers, Library of Congress, microfilm edition, reel 4. See also for Kansas the next spring, Mark Delahay to Abraham Lincoln, June 15, 1859, ibid.

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In 1862 it was different. Lincoln was not now the candidate himself, and the letters he received took a less consoling and more accusatory tone. None of them mentioned the opposition’s money or fraudulent voting. Blame was cast on the Republican party itself, particularly on the president. In only one respect were they consistent with the run-of-themill election post-mortems: They did not lay blame on the centerpiece of their own party’s ideology and policy, in this instance, emancipation. Claims of electoral fraud were replaced by claims that Republicans enlisted for the war and could not vote while the unpatriotic Democrats stayed home – and voted. Michael F. Holt has offered extended discussion of the letters exchanged between Republicans after the elections of 1862 that attempted to assess blame for the party’s losses. He finds in the letters written to the president two points. First, “Most Republicans . . . blamed” the losses in 1862 “on abstention by disgusted northerners who wanted much harsher policies toward the South and slavery, the kinds of policies Republicans thought Lincoln had thwarted.”29 Second, “angry Republicans bluntly pointed to Lincoln’s attempt to include Democrats and southerners in a new Union party as the chief cause of the debacle.”30 It is true that “abstention” by Republicans caused the losses, but how are we to know these voters were motivated by disgust at Republican softness on the South? In fact, no direct evidence is offered to suggest that the Republican stay-at-homes were panting for vengeance against the South. The following remarks are typical of the ones cited by Holt. “The Republican organization was voluntarily abandoned by the president and his leading followers, and a no-party Union was formed,” was Ohio senator John Sherman’s assessment. If the Republicans, he warned, “have the wisdom to throw overboard the old debris that joined them in the Union movement, they will succeed. If not they are doomed.” Senator William Pitt Fessenden of Maine said, “Fear of offending the Democracy has been at the bottom of all our disasters.” The editor of the Chicago Tribune, with accustomed energetic expression, said, “It is enough to make the strongest men weep tears of blood. The President has allowed the Democratic party to shape the policy of the war and furnish the Generals to conduct it, while the Republicans have furnished the men and the money.” From this impressive body of expressions of discontent with Lincoln’s leadership, Holt 29

 Michael F. Holt, “Abraham Lincoln and the Politics of Union,” in John L. Thomas, ed., Abraham Lincoln and the American Political Tradition (Amherst: University of Massachusetts Press, 1986), 130. 30  Ibid.

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concluded that the Republicans were not so much unhappy with “sharing leadership positions with Democrats” as they were with the fact that such sharing required the Republicans to hold back on “the punitive actions against the Slave Power” that they were itching to instrument: “confiscation, abolition, and the arming of former slaves.” The Republican politicians saw their constituents essentially as South-haters who longed for such vindictive (and incidentally liberating and socially revolutionary) policies.31 What we find in the correspondence, in fact, is not pointed references to specific policies like arming African-Americans and confiscating the planters’ property, but complaints about failure to gain military success in the war, about allowing the enemy into the party’s councils, and about want of party organization to face the Democratic electioneering machine. The letters were as much about process as policy. Take the correspondence with the insistent Carl Schurz, for example. Schurz, a general and important leader of German-American Republicans, more than once complained that the administration had “admitted its professed opponents to its counsels.”32 Lincoln, we know, had learned fifteen years ago from watching President Polk’s attempts to gain partisan advantage in selecting generals for the Mexican–American War, that he must keep the great civil war from degenerating into a mere Republican war. Therefore, he was generous in appointing Democrats to command positions. Schurz, we can see, hated that policy of sharing, and he was not alone. Lincoln answered him patiently, but Schurz wrote again, harping on the same theme. “I am far from presuming to blame you for having placed old democrats into high military positions . . . But it was unfortunate that you sustained them . . . after they had been found failing.”33 Lincoln reiterated his defense and challenged Schurz to come to Washington if he really had knowledge of treasonable information given to the Confederates by Democrats in the army. Schurz took the president up on his offer, but we do not know what he told Lincoln. Neither Lincoln nor Schurz mentioned in their correspondence emancipation or punitive measures to be taken against the Confederacy. Of course, Schurz mentioned the want of battlefield victories, as did Lincoln, who knew well enough that “the ill-success in the war” hurt the Republicans. 31

 Ibid., 130–131. The most complete sampling of post-mortem election letters appears in Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union, 152–166. 32  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:494. 33  Ibid., 5:510n.

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Senator John Sherman of Ohio complained about organization too. He told his brother, General William T. Sherman, that the president had “abandoned” the Republicans “to run against an old, well-drilled party organization.”34 He had sensed the want of readiness among the Republicans before election day. Sherman told fellow Ohioan Salmon P. Chase in September, “Our elections I fear will go by default. The Democrats are active in pursuing their organization while we work only for the Union.”35 Lincoln’s response to Schurz has never been properly appreciated. Lincoln offered the following explanations for Republican failure in the elections: Three main causes told the whole story. 1. The democrats were left in the majority by our friends going to war. 2. The democrats observed this & determined to re-instate themselves in power, and 3. Our newspaper’s, by vilifying and disparaging the administration, furnished them with all the weapons to do it with. Certainly, the ill-success of the war had much to do with this.36

There is plenty of reason for skepticism about the president’s mostly self-serving observations. The first one was the default explanation invoked by Republicans during the war to explain their election losses, and was based on the dubious and unprovable assumption that only Republicans were patriotic enough to volunteer for military service. That left the Democrats at home, voting instead of fighting, Republicans argued repeatedly. The third reason cited was based on the ludicrous assumption that in an era of wholeheartedly partisan journalism the Republican newspapers had betrayed the president. The complaint 34

 Rachel Sherman Thorndike, ed., The Sherman Letters: Correspondence between General Sherman and Senator Sherman from 1837 to 1891 (New York: C. Scribner’s Sons, 1894), 167. 35  John Sherman to Salmon P. Chase, September 9, 1862, Papers of Salmon P. Chase, Library of Congress, microfilm edition, reel 22. It should be added that David Dudley Field complained to Lincoln about the damaging political effects of suspending the writ of habeas corpus. See Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union, 162. 36  The letter is not easy to interpret. Allen C. Guelzo, for example, paraphrases Lincoln’s letter to Schurz this way: “‘Three main causes told the whole story’ of the election, Lincoln wrote to Carl Schurz on November 10. The soldiers went off to war, leaving only the grumblers and disaffected at home; the Democrats saw the Proclamation as an opportunity to sow political havoc; and the newspapers ‘furnished them with all the weapons to do so.’” The opportunity Lincoln described, however, was the absence of Republican voters; he said nothing about the Emancipation Proclamation. See Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America, 189–190; Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:494.

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reveals a surprising side to the politically experienced Lincoln: Even he could be thin-skinned about criticism levelled at him by the Republican press (perhaps Horace Greeley’s pre-emancipation criticism, which provoked Lincoln’s public letter of August 22, 1862, lingered in his memory). There was not much of it, in truth. The second reason Lincoln cited is a little puzzling. Imagine Lincoln’s letter without this second reason stated, so that a reader jumps from one to three. Would any meaning be lost? The Democrats were left in a majority, he said, by the departure of Republicans to war. So, one assumes, given the accustomed partisanship of the era, the Democrats won the elections. Then, Lincoln’s third statement would mean, the Democrats were aided in this by the criticism heaped on the administration by its own partisan press. The letter, after all, was aimed at Carl Schurz, also an experienced partisan who thought the worst of the Democrats and would expect them to exploit any numerical majority they enjoyed on any election day. John Sherman had thought of the Democrats as “an old, well-drilled party organization.” His assumption was that they would naturally exploit any perceived opportunity. But for Lincoln as a wartime president the step from political opportunity to exploitation of that opportunity was no longer natural. War was not a time for customary political opportunism. Democrats would have to “perceive” their chance and “determine” to exploit it. Just as it had not seemed natural to Lyman Trumbull back in September to find that Democrats in Illinois were organizing for the next elections, suddenly it was not natural for Lincoln to assume that Democrats, sensing the vulnerability of the opposition, would act on that knowledge and “determine to re-instate themselves in power.” These were not natural times in politics. They were not times of peace and quiet when it was natural for Americans to divide into parties, as Lincoln had said in his eulogy on Clay. Admittedly, this is a small and brief glimpse into Lincoln’s apparent mindset, but he does not offer historians many and we must use what is available. It cannot be overlooked that Abraham Lincoln was an experienced politician, and his experiences over those long years of partisanship had at one time included being a member of the opposition political party during a war. During the Mexican–American War he had been very careful to vote supplies for the troops in the field, but that was the only concession he thought the loyal opposition had to make. Any idea of otherwise relaxing partisanship seems not to have occurred to him then. One reason was that he regarded the Mexican War itself as a purely partisan maneuver. He said it was “a war of conquest brought into existence

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to catch votes.”37 He knew for a fact that the Civil War was not a partisan maneuver for the Republicans, and that he had not brought the war into existence, let alone “to catch votes.” There was nothing in the nineteenth-century partisan imperative (to invoke Joel Silbey’s term) that would help Lincoln see the problem the way the opposition did.38 The unavoidable conclusion is simply that the shoe was now on the other foot. Opposition political parties in war in America can be counted on to be loyal, but they will not be encouraging. And they will not go away quietly. He knew that. He had lived it. He should have realized that the Democrats would now be the same, but somehow, under the pressures of running the war, he did not. The elections of 1862 apparently had some effect on Lincoln, who must have harbored doubts about the Proclamation without wanting to say so to anyone. At any rate, he obsessively returned to the emancipation issue and kept fiddling with it. In his annual message to Congress of December 1, 1862, Lincoln revised or supplemented his ideas about emancipation without explicitly displacing the Proclamation already announced back in September. In this politically inept and illogical message, he proposed three constitutional amendments embodying a plan for gradual and compensated emancipation with colonization that, if adopted, would have delayed emancipation to the end of the century. These will be dealt with in Chapter 5.

The Elections of 1863 Lincoln found his political bearings again after floundering around with second thoughts about emancipation in the ill-conceived annual message. As an experienced political hand who had just seen his party dealt a stinging defeat at the polls, he knew exactly what to do from then on: He had to lead the party to political victory in the important gubernatorial elections of 1863 and in the all-important presidential election of 1864. The Democrats obviously were not going to quit, and the president’s party clearly needed his help. He grew even more focused when Democrats in 1863 nominated extremist candidates for governor in Connecticut and in Ohio and, from all appearances, in Pennsylvania. Moreover, on January 1, 1863, the administration had crossed the Rubicon: Lincoln declared 37

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 1:476. These remarks were made in Wilmington, Delaware. 38  Joel H. Silbey, The Partisan Imperative: The Dynamics of American Politics before the Civil War (New York: Oxford University Press, 1985).

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emancipation by presidential proclamation. There was no going back now. He could win a mandate for it only by electoral effort. Lincoln was developing a clearer conception of presidential leadership of his political party. Actual politicking, especially in time of war, was beneath the dignity of the presidential office, but he could not stand above the fray and merely watch, either. Public letters were not beneath the dignity of the office, and Lincoln excelled at vigorous political writing. He had learned his lesson in 1862, and politicians like Schurz and Sherman had borne it in on him. He had to lead the party. He could not leave it to the mercies of its well-organized political enemies. In 1863 Lincoln performed a major about-face in terms of political effort. This was not a matter of making concessions to Democratic opinion; it was a matter of fighting fire with fire. Making concessions to the other party’s opinion was not the political style of the deeply partisan nineteenth century, and it had never been Lincoln’s style either, before he entered the presidency and a war under what he thought were different assumptions. Facing a clearly rejuvenated Democratic opposition organized for important gubernatorial elections due to occur in 1863 in Connecticut, Pennsylvania, and Ohio, Lincoln now decided that he must fight back. His weapons included the visible – public letters – and the invisible – scheming for money for electioneering at the local level. He clearly worked hard and long on these problems, and the level of presidential activity contrasts sharply with the lack of attention paid to political problems the previous year. The first alarm rang out in New England early in 1863. The region was securely Republican for the most part, but the states had annual elections for governor. They had to be watched constantly. Connecticut was a closely contested state, though it had elected a Republican governor reliably so far. New Hampshire had seemed more securely Republican, but the party was faltering there also. The elections in these states were too close to be neglected, and they loomed especially ominous because Connecticut’s Democratic convention for the first time anywhere in the North during the war nominated for governor a candidate, Thomas Seymour, who was best known for his uncompromising peace views. Lincoln seized the reins of party leadership. The president sent for the great political fixer Thurlow Weed to devise a secret scheme to raise money for the Republican electoral cause in the two endangered New England states. Weed arranged for seventeen wealthy New York merchants and businessmen to raise $16,000 for a political war chest. Weed was Secretary of State William H. Seward’s right-hand man, and Seward

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was involved in the plot also, though no one else, including Secretary of the Navy Gideon Welles (who was not only a cabinet member but a Connecticut politician), seems to have known what was afoot.39 When Lincoln was forced to write a letter in order to urge the scheme forward, he used the opaque language of political secrecy. In a one-sentence letter, he told Weed, “The matters I spoke to you about are important; & I hope you will not neglect them.”40 In New Hampshire Republicans needed a third party to prevent a majority for the Democratic candidate for governor. That maneuver would throw the election into the New Hampshire legislature, which remained Republican.41 Secretary of War Edwin M. Stanton recruited a candidate for the spoiler third party in New Hampshire.42 Lincoln’s anxieties about the party’s political fortunes were greatly increased by the Ohio Democratic nominating convention, held in June 1863. They chose Clement L. Vallandigham, a Peace Democrat whose views were sufficiently notorious (he did not vote supplies for troops in the field) that Lincoln considered him simply beyond the acceptable ­political spectrum. That nomination called for more than secret scheming to spread money around. It called for a major presidential assault on public opinion. In 1863 we can see what Lincoln could do when he set his mind to politics. He had already called in the fixers and used money and political tricks to influence state elections. Now he set to work at political pamphleteering. He disguised the pamphlets as public letters, and they have fooled some historians. He wrote a letter in defense of the Vallandigham arrest, now called the Corning letter, on June 12, 1863. It was destined to become the most famous defense of administration policy on civil liberties Lincoln ever wrote and one of the most famous public letters, period. Lincoln issued this Corning letter the day after the Ohio Democratic

39

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:112n–113n; Diary of Gideon Welles, Secretary of the Navy under Lincoln and Johnson, 3 vols. (Boston: Houghton Mifflin, 1911), 1:235. 40  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:112 (the letter was dated February 19, 1863). 41  Lex Renda, Running on the Record: Civil War-Era Politics in New Hampshire (Charlottesville: University Press of Virginia, 1997), 111–117. On Connecticut, see Matthew Warshauer, Connecticut in the American Civil War: Slavery, Sacrifice, and Survival (Middletown, Connecticut: Wesleyan University Press, 2011), 106–115. 42  Renda, ibid., 116. We need more such careful state studies as this one in order to understand Northern politics in the Civil War.

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nominating convention chose Vallandigham as its gubernatorial candidate.43 Afterward a delegation from that convention had the misguided temerity to call on Lincoln in person, and he sent after them an even more nakedly politicking letter, which can be called the Birchard letter (after the name of the man who led the delegation). Thus two of Lincoln’s letters were provoked by the Democratic nominating convention in Ohio, the one indirectly and the other directly. He wrote a third long political letter, now called the Conkling letter, to be read at a mass meeting in Illinois, on August 26, 1863. It was the first volley in the Republican presidential campaign for the next year; the president wrote it in response to a letter informing him that the “Presidential campaign for your successor (if any) has already commenced in Illinois.”44 The Chicago Tribune, a fervently Republican newspaper, rightly expected the letter to “be the keynote of the next presidential campaign.”45 Such people knew when the president was politicking. The Corning letter appears to be the longest public political letter Lincoln ever wrote, and the second letter, to the Ohio delegation led by Birchard, was about half as long. Together the president in these two letters written in the early summer of 1863 dedicated some 6,000 words to the gubernatorial candidate nominated by the Ohio Democratic convention. Had he done that for all the states in the North, 23 of them, he would have written 138,000 words. That would amount to a substantial book, perhaps 500 pages in manuscript. Since no president has time to do that much writing on the job, it is obvious that the Ohio gubernatorial election in 1863 attracted prime political consideration from the president. The third letter, the Conkling letter, solicited as the first gun to be fired for the presidential campaign of the next year, 1864, was also long at 1,662 words.46 Together the president’s three public letters of 1863 would have made a substantial 32-page political pamphlet. As it 43

 James G. Randall, Lincoln the President: Midstream (New York: Dodd, Mead, 1953), 226, called the Corning letter a “dignified . . . state paper.” He said Lincoln did not “use the language of partisanship” in the Conkling letter written the next month (pp. 261 and 253). For treatment of these documents at length see Mark E. Neely, Jr., “The Civil War and the Two-Party System,” in James M. McPherson, ed., “We Cannot Escape History”: Lincoln and the Last Best Hope of Earth (Urbana: University of Illinois Press, 1995), 93–94. The Corning letter’s timing was prompted by the nomination. The letter itself answered a letter from New York and explained Vallandigham’s arrest. It was not sent to Ohio. 44  Mark E. Neely, Jr., “The Civil War and the Two-Party System,” 93. 45  Quoted in Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America, 235. 46  Thanks to Allen Guelzo for that count, in Lincoln’s Emancipation Proclamation.

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was, the busy president’s words could easily be packaged into campaign documents of respectable size and heft. Lincoln did not leave circulation of these materials to chance. After the publication of the Corning letter, he had copies printed and directed on the frank of his private secretary to a select list of Republican opinionshapers across the country. As a result, tens of thousands of copies were distributed.47 The Conkling letter went directly into the hands of the politician in Illinois who was to read it aloud – and Lincoln sent him accompanying instructions describing how to read it to the crowd.48 In the case of the second Ohio letter – to Birchard – the Ohioans had come to the White House but Lincoln was advised by Salmon P. Chase to write out the answer to the Ohio delegation and send it after their departure.49 Of course, the great multiplier of Lincoln’s words was the party press, as Republican newspapers reprinted the letters or based ferocious editorials on their content. The 1862 elections were a wake-up call for the Republicans in general and for the Republican president in particular. The Republicans performed much better the next year. In states with elections in 1863 – and there were several important ones – the awakened Republicans greatly increased their vote over their dismal 1862 levels. Indeed, for Pennsylvania and for much of the North, 1863 was a dramatic political turning point, and the presidential election of 1864 was but an anticlimax. In Ohio, the Republican candidate for governor who ran against Vallandigham received the most votes of any Republican gubernatorial candidate in the state before 1875!50 In Pennsylvania Republicans increased their statewide vote of 215,616 in 1862 to a whopping 296,506 in the gubernatorial contest of 1863 – more than a one-third increase in the number of Republican voters.51 The Democrats in 1862 had performed better than expected, animated in part by opposition to the Emancipation Proclamation. But that was only a part of their revival, and not the most important part, for, as we have already seen, the efforts to resuscitate the party began weeks before 47

 Mark E. Neely, Jr., “The Civil War and the Two-Party System,” 93–94.  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:414. 49  Secretary of the Treasury Salmon P. Chase, who was from Ohio, advised Lincoln on the matter. See ibid., 6:300n. The Birchard letter was reprinted widely in the press but not, apparently, as a separate pamphlet, like the other two letters. 50  See Ohio Gubernatorial Elections on Wikipedia. I consulted it on August 26, 2016. 51  See Pennsylvania Gubernatorial Election, 1863 on Wikipedia. I consulted it on August 26, 2016. 48

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the announcement of the preliminary Emancipation Proclamation, which came only in late September. Fear that the erosion of civil liberties might threaten the very existence of a loyal opposition – the Democrats themselves, in other words – was a seriously motivating factor. To Democrats the handwriting was on the wall in the Corning letter of mid-1863. Imagine yourself a Democrat, reading the words of the president in the Corning letter. There he had made clear in a sweeping statement that the “man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood. If not hindered, he is sure to help the enemy. Much more, if he talks ambiguously – talks for his country with ‘buts’ and ‘ifs’ and ‘ands.’”52 To a Democrat the role of the opposition was precisely what Lincoln denounced as aiding the enemy: speaking for his country but with certain reservations. Democrats supported the war, but only if the Constitution were not ignored in the process. They supported the war if the administration did not constantly change the country’s war aims, as it seemed to have done with emancipation. The Democrats supported the war – and they also maintained their duty to criticize ineptitude and corruption. Moreover, the party had splintered before the war, and Democrats feared disarray, even disintegration. The Democrats did not want to be the vanishing party that overeager Republicans thought they saw in 1862. Democrats thought of themselves as a permanent feature of the American political landscape. It was the Republicans, in their view, who were new and likely ephemeral. It was the Republicans who would go the way of previous opponents of the Democracy, like the Whigs and Know Nothings. In 1862 the Democrats were motivated by fears for party survival and not by white supremacy. In other words, what the Democratic party stood for in the Civil War was, first and foremost, the Democratic party. The war greatly accelerated and intensified the process of Democratic party identification. Under pressure also from the idea that partisanship should be subdued for the sake of patriotism, the Democrats had to struggle not to dissolve as an organization for the sake of preserving their country. They embarked on a thoroughgoing campaign not to suppress partisanship but to heighten and occasionally justify it. Asserting their identity turned out to be mainly a matter of creating a myth of continuous historical existence. It was decidedly not a search for a systematic body of doctrine or issues consistently adhered to. As an old party with a long continuous history, the Democrats did not think of 52

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:265.

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a political party the way the upstart Republicans did: Democrats did not think that parties arose and disappeared with the rise of particular issues and their resolution. Analysis of voting in the Civil War era has shown decisively that Democrats identified intensely with their party. That was not a matter of issues but of ethnicity and cultural outlook. Such analysis has found a pattern of behavior here – what we might call identity politics today.53 But Democrats at the time did not see their organization that way. Somehow, Democrats believed that they existed for principles, that their principles would win out in the end, and that their principles were timeless. “Principles,” a term widely invoked in party rhetoric but seldom systematically spelled out, did not translate into ideology or issues or a set of platform planks. Instead, “principles” were easily translated into or merged with an organization with a mythical historical past, much as a nation’s Constitution, laws, and political institutions embodied principles that merged hazily into nationalism and patriotic identification with country. To put it another way, what the Democrats did during the Civil War was to create an alternative national identity to challenge the Republican party’s appropriation of “national” values or “loyalty” during the war. There are numerous ways of describing the Republicans’ attempt to seize the advantage of identification with the nation itself. The Republicans’ merging of party with nation can be described as wrapping themselves in the flag.54 Democrats at the time described it as conflating the identity of administration and government. Historian Robert M. Sandow has clearly identified that phenomenon with a vivid piece of journalism from central Pennsylvania. The Democrats, Sandow says, took to “distinguishing the Lincoln administration from the government itself.” He then quotes the Clearfield Democratic newspaper on the point: “Old Abe” said, when on his way to the white house, “that he intended to run the machine as he found it.” Now this, Tho’ a very homely expression, and a very indefinite definition of Government, is yet sufficiently illustrative of the distinction. The Machine “Old Abe” spoke of is the Government, and the running of the Machine is the Administration; so that men may differ greatly as to the best way of running it, and yet find no fault with the Machine.55 53

 This is usually called the ethnocultural thesis. It has never been successfully challenged by alternative analysis of voting statistics from Northern states, but as Michael F. Holt points out, it never fitted the patterns of voting in the South. See Holt, A Time of Uncertainty: The Civil War Era and America’s Two-Party System (Gettysburg College, 2003), 9–10. 54  Woden Teachout, Capture the Flag: A Political History of American Patriotism (New York: Basic Books, 2009), 73–104. 55  Robert M. Sandow, Deserter Country: Civil War Opposition in the Pennsylvania Appalachians (New York: Fordham University Press, 2009), 71; see also Melinda

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The Democratic Cleveland Plain Dealer offered a more formal statement of the same idea in the spring of 1863 by quoting from one of Secretary of State William H. Seward’s dispatches: “In this country especially, it is a habit not only consistent with the Constitution, but even essential to its stability, to regard the administration at any time as distinct and separate from the Government itself, and to canvass the proceedings of the one without a thought of disloyalty to the other.”56 Pennsylvania’s Hiester Clymer, a hopeful for the Democratic nomination for governor in 1863, made the same distinction in a speech by saying that loyalty was determined by fealty to the government and not to the administration.57 The Republicans were creating what historian George Fredrickson described a generation ago as a new doctrine of loyalty.58 Republicans exploited no-party sentiment and by 1864 made Union the only election issue.59 We might see the differences between the parties during the Civil War as “contested nationalisms.”60 The ability of the Republicans to merge party and nation has been ably analyzed and described by others, but how the Democrats responded has never been adequately considered. In some instances historians have even taken the Republicans at their word and simply thought of the Democrats as disloyal. Democrats resented imputations of disloyalty and developed more than one answer to the Republican onslaught. George Ticknor Curtis examined “this new doctrine of loyalty” on March 28, 1863, just as it was emerging from Republicans on the hustings, in the press, and from pulpits. “The word itself,” this careful constitutional thinker warned, “at least in the sense in which it is used in those countries from which we have lately borrowed it, can scarcely be said to have an appropriate place in our political and social system.”61 Pennsylvania Senator Charles Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War (Lawrence: University Press of Kansas, 2002), 92. 56  Cleveland Plain Dealer, March 26, 1863. 57  Harrisburg Patriot and Union, March 20, 1863. 58  George M. Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (New York: Harper & Row, 1965), 130–150. 59  Adam I. P. Smith, No Party Now: Politics in the Civil War North, 101. An old-fashioned statement of the view, well argued, comes in William Frank Zornow, Lincoln & The Party Divided (Norman: University of Oklahoma Press, 1954), 8. 60  Robert M. Sandow, ed., Contested Nationalisms (New York: Fordham University Press, 2016) forthcoming. 61  George Ticknor Curtis, “The True Conditions of American Loyalty: A Speech Delivered by George Ticknor Curtis, before the Democratic Union Association, March 28th, 1863,” in Hand-Book of the Democracy for 1863 & ’64 (n.p., n.d.), document no. 5, pp. 59, 62.

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Buckalew, in a letter to a Democratic public meeting in the summer of 1863, said, “your political opponents think that patriotism should be called loyalty,” but that idea was “borrowed from the literature of monarchy.”62The Democratic Chicago Times in the autumn of 1863 said that loyalty was an “inappropriate” word “for the American vocabulary.”63 Emerson Ethridge, giving a speech at a Democratic rally in Philadelphia in September 1864, asked, “What is loyalty? . . . If it means anything it means devotion to the person of a prince .  .  . It has no application in a representative age, under a Republican form of government.”64 The Democratic newspaper in Harrisburg stated in August of that presidential election year, “Loyalty is a royal word.”65 The Democrats had a point. As the Reading Gazette pointed out, Webster’s dictionary defined loyalty as a noun meaning “Fidelity to a prince or sovereign, or to a husband or lover.” And that was “the only definition . . . given.”66

The world and the Idea of a Loyal Opposition in War The Democratic intellectuals and men of affairs who congregated around the New York World also offered thoughtful justifications of a two-party system. It is impossible to sort out their motives. Obviously much of the impulse to think about the question arose from sheer opportunism: 1862 saw the prospect of off-year elections across the North and there were offices to be gained by an opposition party. On the other hand, we can definitely assess the end-product: If we bring together the ideas expressed in several articles across two years of writing, the resulting body of work by the editors of the World was fully the equal of anything in print up to that time on the idea of a loyal opposition and a two-party system. On the eve of the war, the existing theoretical body of work was very thin. The most famous treatment of the subject came from Francis Lieber, the Prussian-American immigrant and forerunner of political science in America. In 1839 in a dry work entitled the Manual of Political Ethics, Lieber asserted that history offered “no instance of a free state without parties.” And he made the critical intellectual leap from that matter of fact to the ethical assertion that it was not “desirable that no parties 62

 Reading Gazette and Democrat, September 19, 1863.  Chicago Times, October 17, 1863. 64  Lebanon Advertiser, September 28, 1864. 65  Harrisburg Patriot and Union, August 8, 1864. 66  Reading Gazette and Democrat, May 2, 1863. 63

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should exist.” Parties offered a “loyal, steady, lasting and effective opposition, one of the surest safeguards of public peace.” In vaguer language, he argued that parties were essential, for otherwise “many of the best intended measures would remain harsh, unmodified, absolute.” However, he retained the familiar reservations about the role of political parties in war and counseled, “If an opposition feels really and conscientiously convinced that the war is inexpedient, let them follow the old Roman rule: treat after victory, but fight until then.” During the war, Lieber led the way for a systematic argument that parties ought not to function, writing a sizzling pamphlet called No Party Now but All for Our Country early in 1863.67 It was a cinch that the idea that an opposition party was essential would be born of opposition and not of incumbency. Lieber got the idea of the necessity of a two-party system in the first place when he was a Whig living under a Democratic administration, and he insisted on the obliteration of party identities during war when he was a Republican and so was the administration in power. The World, of course, was in opposition during the Civil War, and so the editors there for the first time in American history extended the argument for the necessity of political parties to wartime. In the end, it was quite an achievement, whatever the underlying motives for the ideas. They were not the only Democrats to come up with the idea, but they were by far the most systematic, prolific, and insistent. It must be added that the viewpoint of the World, because it began as a Republican newspaper in 1861 and was edited by Manton Marble, who was originally a Whig, at first retained a faint whiff of Whiggery about it when it discussed party opposition.68 The Democratic editors at first tiptoed up to the subject, but as early as October 1862, they could make a vigorous statement of the need for opposition: “Opposition is the life of free governments. Parties grow into tyrannies unless checked by the organized action of counter parties.” Would it be the Democratic party of old? Marble was not sure. “On the particular mode of action of such a party,” wrote the World, “we need not dwell. It may adopt, temporarily, the old Democratic organization, 67

 For a somewhat fuller treatment as well as the sources for this one, see Mark E. Neely, Jr., The Divided Union: Party Conflict in the Civil War North (Cambridge, Mass.: Harvard University Press, 2002), 10–11, 48 and 214n. 68  See George T. McJimsey, Genteel Partisan: Manton Marble, 1834–1917 (Ames: Iowa State University Press, 1971), 17, 24. On the strain of anti-party sentiment in the Whig party see Lynn L. Marshall, “The Strange Stillbirth of the Whig Party,” American Historical Review, 72 (January 1967), 445–468.

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from which revolt has purged the treasonable element, or it may frame a new one more suited to the exigency of the times. It will surely form itself.” Invoking political memory, the World desired a party that would appeal to the likes of Democrats Stephen A. Douglas and Thomas Hart Benton as well as to Whigs like Henry Clay and Daniel Webster.69 The editors thought it “idle to expect that the coming political campaign [1862] will be maintained on any of the old party lines, or with any of the old party ammunition. Every sensible man knows that the war has completely broken up all the old political relations – that we are now in a transitional state – and that the final party reconstructions must depend entirely upon military results and other contingencies.”70 But the real direction was toward reviving the organizational strength of the old Democracy, as we shall see later in this chapter. The World came up with at least three distinct roles for a loyal opposition in war. First, they came to realize that a relaxation of party criticism and competition was premised on an assumed competence of the administration. In early September 1862, after the administration seemed incapable of winning the war, the World argued that “Those who believed that party government must cease during the war did not, we think, appreciate all the conditions necessary to a healthful condition of public opinion or to a faithful and vigorous conduct of the government.”71 The history of the war revealed this pattern: “The people are now realizing the bitter consequences of undue confidence in the management of the administration. The abandonment of free criticism, which followed the disaster at Bull Run, and the disposition to trust everything in the direction of the President, have terminated in an accumulation of disaster and disgrace that appalls and sickens every heart.”72 In short, differences which had “been merged in a common support of the administration . . . would have continued to be so merged but for” the “imbecility and weakness of the administration” (“imbecility” in the nineteenth century meant ineffectualness).73 Besides, the administration had instituted internal security measures that certainly seemed threatening to the Democracy itself.74 Thus, the

69

 New York World, October 2, 1864.  Ibid., September 19, 1862. 71  Ibid., September 12, 1862. 72  Ibid., September 10, 1862. 73  Ibid., September 18, 1862 (commenting on a National Intelligencer article). 74  Ibid., September 10, 1862. 70

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“most salutary influence of parties is perhaps this restraining agency on men clothed with power.” The editors went on: A government might change hands every few years, and still be as bad as possible, if the men in power were under no restraints in the interval between the elections . . . It is . . . an advantage to a free country that political parties are more permanent than the tenure of office of the men whom they elect . . . A vigorous and vigilant opposition party exerts a restraining influence on the party in power by operating on its fears, and thus enforcing respect, real or pretended, for public opinion.75

The role of the press was in every sense critical. The administration’s “lack of decision,” the World stated as early as September 1862, “of method, of forecast, of energy, of deference to military science, of quickness to seize advantages, of firmness to hold them, of respect for the constitutional rights of loyal men, of sternness against rapacity and corruption” called for press criticism: Henceforth public opinion must take a more definite and cogent shape. Free discussion of the management of the administration must be exercised with as little deference or scruple as in time of peace. The public journals which have voluntarily imposed reserve upon themselves should now learn that genuine patriotism dictates the utmost frankness . . . free speech, so that it be loyal, whether for the administration or against it, should everywhere be encouraged.76

By 1864, that invocation of “frankness” had led to a defense of the most extreme and bitter rhetoric. When the old Whig Edward Everett attempted to differentiate between the vehemence of language proper for criticism of a despotism and of a democracy, the World explained that “Political earnestness in free countries naturally rises, on all great occasions, to passionate warmth . . . When great interests are at stake, and great evils are to be confronted, the boldness and vigor to which free institutions give scope are high public virtues, and are not to be measured by the standards of a fastidious drawing-room courtesy.”77 The second function of a party opposition, according to the World, was to serve as a safety valve. This too came in 1862. In September of that year the editors noted that “Without the safety-valves of a free press, untrammeled discussion, and party opposition, the pent-up political passions generated by administrative imbecility and acts of arbitrary power gather fearful and explosive strength. The condition of the country is 75

 Ibid., October 16, 1863.  Ibid., September 15, 1862. 77  Ibid., February 17, 1864. 76

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now such that these safety-valves must be re-opened, or there is danger that our laboriously constructed and nicely-balanced system of government will lie about us in scattered and disjointed fragments.”78 The editors repeated the point, obviously an important one to the World, the next day: “Party opposition, acting slowly and only through the elections, enables the administration to take timely warning and retrieve its errors. It is a safeguard against the violent explosion of revolutionary passions. It keeps open an orderly, peaceful, and constitutional way of displacing incompetent rulers.”79 And at this point they arrived at a third essential use of a loyal opposition: “It trains, in the opposition chiefs, a set of men to feel the responsibilities of coming power and in some degree fit themselves for the discharge of public duties. It is like having another house to retreat to if the one you inhabit should be beaten down by the tempest or falls in rottenness about your head.”80 By 1863 the theory was full-blown and could reach very tough conclusions unimaginable before the war and before the work of the Democrats to justify their opposition to the Lincoln administration. In their novel justification for a party opposition, they went so far as to argue that mere opposition itself was a fulfillment of legitimate party purpose. Wanting to avoid ideological commitment and conflict within the party, the editors of the World argued early in 1863: It is the mission of the Opposition party not to break down or enfeeble the federal government, but to get possession of it and administer it on constitutional principles. If we carry the Spring elections in Connecticut and New Hampshire .  .  . we shall have a handsome majority in the national House of Representatives, and a complete check on mischievous legislation. But even then we shall have no power in shaping a positive policy, and while we are out of power it is absurd to assume responsibility for a policy. When the presidential canvass opens in 1864 it will be proper for the opposition to define the principles on which they propose to administer the government if they carry the elections. But for the present it is wiser to confine our efforts to simple oppositions . . . Why should we encumber ourselves with a positive policy while as yet we have no power to put it in force? The function of an opposition party is negative. It is to expose administrative corruption, resist bad measures, and stand up against infractions of the Constitution . . . [It is] “a wise and masterly inactivity.”81

78

 Ibid., September 10, 1862.  Ibid., September 11, 1862. 80  Ibid. 81  Ibid., February 19, 1863. 79

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With such a sense of mission, the Democrats set about criticizing with a vengeance. Most of the Democratic press simply criticized from habit, without feeling a necessity for providing a rationale.82

The Invention of the Democratic Party Myth The opposition party turned out to be the Democratic party of old, of course. At a general and popular level, Democrats devised a myth (paralleling the Republicans’ wartime myth of loyalty) in which the Democracy too became tantamount to the nation itself. As nearly as they could, the Democrats made the history of the Democracy coterminous, if not downright synonymous, with the history of the United States. And they gave their party as well an essential quality of nationalism: perpetuity. The Democratic party in this mythic formulation had ruled the United States for most of its history up to the Civil War, to positive effect, and the party was destined to live forever. Such was not the view taken of the Republican party during the Civil War, not even by the Republicans themselves. As Eric Foner has shown, the radical wing of the party, which grew increasingly powerful as the war progressed, had never been much interested in the party’s organization and persistence unless its existence brought about the radicals’ great ideological aim: the abolition of slavery in the United States. “The radicals,” he wrote, “had a very expedient attitude toward political parties – they viewed them as means, not as ends, and they were ready to abandon a party if it would help further the anti-slavery cause.”83 One did not have to be in the antislavery vanguard to see the Republican party as a utilitarian device rather than a hallowed fraternal association. In fact, it was difficult to see it any other way. The Republicans constituted a new party, organized in the living, even recent, memory of nearly everyone in the Civil War, and no one could possibly conflate the history of the Republicans with the decades-long existence of the United States. As an organization recently and laboriously devised, no one could as yet attach to the Republican party mystical significance. It had few heroes or martyrs. It was a device, a means to an end. Many Republicans therefore 82

 For expressions of argument for a loyal opposition outside the ambit of the World see the York Gazette, March 12, 1862 and the New York Evening Express, November 19, 1864. After the party’s loss of the presidential election of 1864 it became increasingly important to stress that a loyal opposition was essential to the survival of republics. 83  Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War, orig. pub. 1970 (New York: Oxford University Press, 1995), 113.

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thought that political parties were instrumental organizations brought together at particular moments in history for a great cause or reform of the moment and destined not to live forever but to be dissolved when that end was achieved, only to have new parties organized around new and living issues arising at that new point in history. The idea that the Republican party’s work was completed was in sight as early as 1863, rather clear by 1865, and widely believed by 1868. The independent New York Herald, in the election autumn of 1868, discussed “The Republican Party and Its Mission.” The Herald hated Radical Republicans as it had hated abolitionists before them, and the editors predicted “that the mission of the republican party will be ended with Grant’s administration, and that after him a new party will come to the front, and the present radical faction will disappear among the things of the past.”84 The underlying idea, of course, was that a political party was formed for a mission, and that once its mission was completed, there would be a reorganization of parties around new issues. The Republican New York Evening Post in the same year said: “Everyone knows that before a very long time, there must come about a reorganization of parties. Those who have studied most thoughtfully the political and industrial condition of the country are persuaded that many important interests are neglected, and that the country suffers in different ways, because the reorganization of parties had been so long delayed, and that it will continue to suffer until parties are formed upon the real questions of the day – which are taxation and finance.”85 In May 1869, not long after the inauguration of a new president, The Nation, a Republican publication, voiced the view that the persistence of both parties was doubtful: “That the Republican and Democratic parties have so long continued to be the sole occupants of the political field – that no new faction should arise to claim its right to exist and to struggle for mastery – has probably surprised people.” The editors were thinking there might be an annexationist party or a workingmen’s party – in other words, a political party organized around a newly emerging mission.86 The editors of the New York Evening Post, discussing a possible nomination of Salmon P. Chase for president in 1868, said that “It would signify a general dissolution of parties; an abandonment of the old grounds of difference which the events of the last seven years have already made obsolete and a redivision 84

 New York Herald, October 2, 1868.  New York Evening Post, August 8, 1868. 86  The Nation, May 20, 1869. 85

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of parties upon the grounds of struggle which obtained before the slavery question absorbed all others.”87 Salmon P. Chase was peculiarly situated to think about political parties in the abstract – more than most practicing politicians, who, more or less, took parties as given. First, he was a generally reflective and thoughtful man. Second, as a former Democrat in the Republican party, he never felt entirely at ease with the old Whigs in the party. He said in 1863 that “We need in my judgment a Democratic Republican Party, with ideas and principles worthy of the name.”88 Third, he had presidential ambitions and the Republicans already had a president. As early as the autumn of 1863, Chase, then Secretary of the Treasury, could see that “the confusions of the war which now holds our political organization together” would eventually “be relaxed and broken off.”89 By 1868 he was restlessly looking for political opportunity. Yet he told one correspondent, Hezekiah Bundy, “I am not a contriver of new political organizations .  .  . If new political organizations arise, they will grow – they won’t be manufactured – they will grow out of the real or imagined exigencies of the time.”90 In the same month he assured newspaperman Murat Halstead that “To make and unmake parties is the work of the people. Politicians can’t do it, and their attempts to do it are always failures.”91 Thus the assumptions about political parties of even the most ambitious politicians appear to have been profoundly steeped in democratic belief. Chase, although he saw the likelihood and benefit of periodic party reorganization around new missions or issues, did not see parties as the mere contrivances of politicians but as the organisms of the people ultimately, products of growth and not manufacture. Democrats during the Civil War seldom described their party in utilitarian terms, as a temporary vehicle for great or emerging causes. Instead, the Democrats wove a party myth for its adherents to believe in and rally around now and for all time. No doubt many weavers and many voters alike believed in the fabric of the myth. It could not be and was not a wholly imaginary or visionary enterprise. It had to hover over actual events of American history.

87

 New York Evening Post, June 10, 1868, clipping in the Papers of Salmon P. Chase, Library of Congress, microfilm edition, reel 37. 88  Salmon P. Chase to ? Brewster, June 12, 1863, ibid., reel 27. 89  Salmon P. Chase to John Conness, October 18, 1863, ibid., reel 29. 90  Salmon P. Chase to Hezekiah Bundy, May 20, 1868, ibid., reel 37. 91  Salmon P. Chase to Murat Halstead, May 22, 1868, ibid., reel 37.

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The central contention was that the Democratic party began with Thomas Jefferson and was thus almost as old as the country itself. That the party began with Jefferson proved to be a powerful and enduring myth, embodied in the twentieth-century Jefferson-Jackson Day dinners of the modern Democratic party. But it was pure myth. Political historians long ago proved that there was no continuous existence from the Jeffersonian Republican party through the Democratic party of Andrew Jackson and beyond. After all, James Buchanan and Roger B. Taney, stalwart Democrats if ever there were any, began their political careers as Federalists before the Democracy was organized.92 But during the Civil War most Democrats and some Republicans believed the Democrats’ history began with Jefferson. In 1864, for example, the Democratic Lancaster (Pennsylvania) Intelligencer observed, “The Democratic party of this country came into being at the first formation of parties under our Government. It has stood its ground and maintained its identity from that day to this, while its opponents have undergone as many changes as Proteus.”93 From that mythical beginning they moved to a fuzzily mythical history of the country up to the Civil War. “[I]t is undeniable,” said the same Pennsylvania editor, “that the Democratic party have chiefly molded the destinies of this nation, almost from the earliest period of its existence.”94 On occasion, editors grew careless and claimed simply that “The history of the country is the history of the Democratic party.”95 Many among the Democratic faithful knew enough American history to realize that their party had not always run the country. Sorting out the Federalists of the period of constitutional formation from the later Federalist party proved too complicated for journalistic myth-making, and it was easier to start with Jefferson in 1800. Speaking in Philadelphia in 1863 to the Central Democratic Club, editor and politician George Sanderson identified the party with seventy years of American history but then added, “Tis true there was not an unbroken chain of Democratic rule during all that long period.”96 The steady reiteration of the party line on American history had the effect of convincing even non-Democrats of the historical veracity of the 92

 Richard P. McCormick, The Second American Party System: Party Formation in the Jacksonian Era (Chapel Hill: University of North Carolina Press, 1966), 159, 161. 93  Lancaster (Pennsylvania) Intelligencer, January 5, 1864. 94  Ibid., July 28, 1864. 95  Somerset (Pennsylvania) Democrat, quoted in the Gettysburg Compiler, July 8, 1861. 96  Lancaster (Pennsylvania) Intelligencer, April 28, 1863.

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myth. The politically cynical and independent New York Herald at one point during the election summer of 1864 said this of the Democratic party: “[S]eparated from all connection with slavery, it is the party of the country, and is, politically speaking, essential truth. All other organizations have been temporary, based upon false principles and often aiming to sustain wrong measures . . . There has never been a party opposed to the Democratic party that has outlived a single national Administration after coming to power.” That was true “[f]rom the days of John Adams to the last year of the term of Abraham Lincoln.”97 Many of the expressions of the Democratic party myth were provoked by Republican claims, made after the election of 1860 and repeated more vehemently after the election of 1864, that the Democratic party was now dead. In the immediate aftermath of Fort Sumter’s fall, the Republican claim was combined with a call for a relaxation of partisan strife in the face of the crisis. Later, the essentially idealistic appeal for patriotic self-denial changed into a more challenging claim that the Democratic party had lost its issues and followers and was simply irrelevant, retrograde, and moribund. From the claim that the Democratic party was dead, Democrats always dissented. Late in 1863, after their party had suffered defeats in Ohio, Pennsylvania, and Connecticut, the editors of the Democratic newspaper in Gettysburg said, “We hear men say frequently that there is no Democratic party – that it is gone, that it is dead. They might as well say there is no Bible faith – no true religion.”98 The idea of the party’s immortality was not linked and could not be, to any particular programs or issues. It could not be, because platforms and issues changed through history, and the Democratic party did not. The Cleveland Plain Dealer thus insisted in 1864 that “The Democracy is indestructible.” The editors then pointed out that “It is based upon no isms or newly conceived ideas. It is not fitful, passionate or irregular. It rests upon the solid foundation of the peoples’ affections.”99 The Democratic party was, compared to others in existence anywhere, time hallowed; from that Democrats inferred that it was downright eternal. “All other parties,” said the Democratic editors in Gettysburg, “as at present organized must of necessity be ephemeral.” Other parties could not match the long and illustrious history of the “great old Democratic party, which has safely guided the Ship of State 97

 Quoted in the Gettysburg Compiler, July 11, 1864. The Herald went on to enumerate the principles, such as strict construction of the Constitution. 98  Gettysburg Compiler, November 16, 1863. 99  Cleveland Plain Dealer, July 16, 1864.

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through every storm and tempest that has encountered it from the day it was launched to the present hour.”100 Democrats loved to list the opposition parties in the United States that had come and gone while their own party endured; the list, of course, was colored by myth and political humor: 1773 Nova Scotia Cow Boys 1808 Anti-Jefferson Improvement Men 1811 British Bank Men 1814 Hartford Convention 1816 Washington Society Men 1818 No-party Men . . . 1845 The Whig Party 1848 Mexican Whig Party 1847 The Anti-War Party . . . 1861 The Republican Union No-party Party101

Even William H. Seward, a Republican with a shrewd understanding of political parties, said carelessly in a speech in his hometown in 1861, “The Democratic party throughout the United States has virtually held the reins of Government for half a century.”102 Like the idea of the nation itself, the idea of the Democratic party embodied an attribute of eternity.103 As early as 1861 editors at the Somerset Democrat in Pennsylvania said, “As long as there is a nation, there will be a Democratic party, and the death of the one will be the death of the other.”104 Another small-town Pennsylvania newspaper, the Waynesburg Messenger, in 1863 spurned the utilitarian and emphasized the eternal in describing the party’s role: The Democratic party is not a temporary organization, seeking to effect trifling and evanescent objects. It is a progressive and permanent organization, and will only cease to exist with the liberal popular institutions which gave it origin. It came into being in the very infancy of the Republic . . . And for all the benefits and blessings we enjoyed we were indebted, under God, to the sound policy of Democratic administrations not less than to our own institutions.105 100

 Ibid., June 23, 1862.  Ibid., December 9, 1861. This list was widely repeated in the Democratic press across the country. 102  Quoted from the Boston Post in the Pittsburgh Post, December 9, 1863. 103  For the association of nationalism and immortality see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, orig. pub. 1983 (London: Verso, 1993), 10. This discussion of party myth and nationalism is heavily influenced by Anderson. 104  Quoted in the Gettysburg Compiler, July 8, 1861. 105  Waynesburg Messenger, August 12, 1863. 101

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To many Democrats the party was tantamount to the nation. On that score, they proved not to be much different from the wartime Republicans in identifying party with nation. As luck would have it, the Democratic party myth, likely under construction before the war began, proved to be neatly adaptable to the party’s situation as a loyal opposition during the Civil War. The Democrats before the war, when they were still keen on excusing the Southern slaveholders in their ranks, embraced as an actual plank of national party platforms, the idea that the party stood for the Constitution of the United States as interpreted in the Kentucky and Virginia Resolutions of 1798 and 1799 (themselves the work of Thomas Jefferson and James Madison). The so-called principles of ’98 and ’99 were repeatedly invoked in Democratic resolutions and in stump speeches to the point where many Democrats could not distinguish them from the Constitution itself.106 In the 1850s the embrace of the Kentucky and Virginia Resolutions called attention to the state rights and compact theory that lay behind them and which were, in turn, the basis of their defense of slavery in the party. But when war came in 1861, and the Democrats became an opposition party, they found their loyalty questioned for speaking and writing freely in the press of the failure of the Republican administration to win the war. It proved convenient to refer to the actual historical origins of those hallowed resolutions of ’98 and ’99 as protests against the Alien and Sedition Acts of the Adams administration (which Democrats before the Civil War had not done when embracing the principles of ’98 and ’99). Now, in other words, Democrats called attention more to the original libertarian purpose of the Kentucky Resolutions than to their underlying state-rights ideology assumptions. In the Civil War their invocation served to defend freedom of speech and freedom of the press, the very lifeblood of a loyal opposition. By mid-1863, after thousands of arrests of civilians by military authority and the symbolic case of Clement L. Vallandigham, the historical parallel was clear to Democrats all over the country. The Democratic newspaper in Reading, Pennsylvania, under the headline “The Reign of Terror under the Administration of the Old Federalist Party,” asserted that the “present Republicans are the legitimate descendants of the Federalists of 1799 and 1800.”107 Judge Anson V. Parsons, of Philadelphia, 106

  On this point see Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (Chapel Hill: University of North Carolina Press, 2011), 1–9. 107  Reading Gazette and Democrat, November 28, 1863.

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speaking in New Britain, Pennsylvania, said that “John Adams, the first Opposition President, was scarcely warm in his seat before he endeavored to overthrow the Constitution.”108 The Lebanon Advertiser, copying from another Pennsylvania paper, also made the “Historical Comparison of the Reigns of Terror of 1799 and 1863.”109 It had grown convenient to say that the Democratic party had its origins in protests against the Alien and Sedition Acts of 1798, protests drafted by Thomas Jefferson. The Harrisburg Democratic newspaper said in the summer of 1863 that the Democratic party was “called into existence by the ‘Alien and Sedition Laws.’”110 In carelessly conceding the historical ground to the Democrats in their interpretation of the longevity and genealogy of their party, the Republicans had made a mistake. Abraham Lincoln in the 1850s saw what a mistake it would be to concede to the Democrats the legacy of Thomas Jefferson, the author not only of the Kentucky Resolutions but also of the Declaration of Independence. Lincoln was not about to allow Jefferson to be commandeered by the Democrats. In 1854 he said that Jefferson “was, is, and perhaps will continue to be the most distinguished politician of our history.” Lincoln had a sense that the Democrats were hijacking Jefferson’s legacy of freedom and equality that ought to rest with the Republicans. In a comical comment on the slavery controversy he said, “If the two leading parties of this day are really identical with the two in the days of Jefferson and Adams, they have performed about the same feat as the two drunken men” who in a wild brawl somehow exchanged overcoats by the time the fight was over.111 Disaffected Democrats on the fanatical margins of the party were more likely to see through the Democratic party myth than the Republicans were. Thus the white supremacist New York Day-Book, always resentful that the Democratic party did not focus on white supremacy as its central platform plank, in June 1860 ridiculed the fanciful party history being invented by the Democrats: It is a widespread popular error that a “Democratic party” always exists and interested persons and office-seeking politicians pretend to be perfectly able to demonstrate this assumption. They begin usually with the Republicans of ’98, though some go back to the days of the Revolution, and even to the flood, and 108

 Doylestown Democrat, September 8, 1863.  Lebanon Advertiser, September 8, 1863. See also issues of May 13, 1863, and June 19, 1861. 110  Harrisburg Patriot and Union, September 4, 1863. 111  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 3:375. 109

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they trace down this party through Jefferson, Madison and Jackson to the present hour, with a fluency, completeness, and confidence perfectly satisfactory and indeed overwhelming – to themselves at all events. And they have repeated this nonsense so often and so extensively that large portions of the people believe it to be true . . . But there is no such thing, never has been, nor ever can be such a thing as a permanent or uninterrupted Democratic party under our institutions.112

Such doubters of the party faith were few and eccentric, to be found only among the marginal fanatics in the Democratic party. What the mainstream adherents of the Democratic party believed in, then, was the Democratic party. During the Civil War they rallied the voters long since identified with their cause to their familiar banner by invoking memories of their party-nation. The momentous issues of the Civil War such as saving the Union boiled down to this appeal by 1864: The only way to save the Union was to elect a Democrat. Although voters of particular ethnicities and religions may have identified with the party consistently, the Democracy did not have to reinforce ethnocentric appeals. They rallied voters to their party-nation. The Democracy was like the nation itself, an historic organization with a mythical history. It was a vital necessity now, during the war, as an opposition to the Republicans’ nation. The loyal opposition was as much, and as little, as that. And yet merely to maintain organization was a greater achievement than it might seem from the ahistorical and one-sided views expressed in creating a great myth of the Democratic party and its permanence. Anyone can name the two greatest achievements of the Civil War, and those were substantially the work of the Republican administration: saving the Union and freeing the slaves. But what was the third most important outcome? A question seldom asked. That was surely the survival of the idea of a loyal opposition through the war. That was distinctly not an accomplishment of the Republicans. In fact, the Republicans did much to threaten such an outcome. The Democrats did even more than persist. By providing for the first time in American history a sober rationale for the loyal opposition in war, argued for in plain language and in readily accessible venues such as newspapers and popular political speeches, the Democrats pretty much invented the idea. Thus in politics the United States was once again at the forefront of innovation, for the idea of a loyal opposition remained out of reach of most nations at the time and to this day eludes dozens of nations throughout the world. The Republicans’ contribution was considerable, though a matter of self-restraint rather 112

 New York Day-Book, June 12, 1860.

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than innovation: There was never any talk of postponing elections in the North during the war. The Republicans let them be held and risked the opposition. The points of this chapter are several. First, the Democrats saw themselves as struggling mainly for the organizational survival and persistence of the party. Second, the failures of the Republicans in the elections of 1862 were their own fault. They failed to get out their own vote and show the country and the world how much enthusiastic support for emancipation there was. It was a shame, for their failure was rooted in another high ideal: that wars should receive nonpartisan support. The Democrats, in saving their own party, contributed to American political thought a notable defense of the two-party system and loyal opposition in war. But that is not all. What is consistent in these results is that historians have overestimated the role of race prejudice in the period. It was very great but not all-controlling. The Democratic myth discussed here was not based on racism. It rested more on sheer longevity. The Democratic party does not appear to have been the party of white supremacy, not yet, anyway. They did not salvage their party by latching onto “white supremacy.” Reorganization of the party and development of the idea of a loyal opposition began well before the announcement of the preliminary Emancipation Proclamation. Abraham Lincoln, who had been the victim of a race-baiting campaign waged by Stephen A. Douglas back in 1858, might have been tempted to overestimate racial prejudice because of his peculiar political history, but his election post-mortems in 1862 did not resemble his election analysis in 1858. Stephen A. Douglas had, Lincoln believed, beaten him in the 1858 senate race by appealing boldly to white supremacy. In an undated fragment likely written in the year after his loss to Douglas, Lincoln reflected on political issues of the day and could only shake his head in disbelief and exclaim – to himself – “Negro equality! Fudge! How long, in the government of a God, great enough to make and maintain this Universe, shall there continue knaves to vend, and fools to gulp, so low a piece of demagougeism [sic] as this.”113 Lincoln did not allow himself to be traumatized by his one-time loss to a desperate candidate who accused him of advocating racial equality in 1858. He regarded the loss to Douglas in 1858 as a slip but not a fall. When Carl Schurz wrote Lincoln about the lost elections of 1862, Lincoln did not reply, “White supremacy! Fudge! What demagoguery.” He did not think the Democrats had played the race card in a new, especially 113

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 3:399.

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dramatic, or unusually intense way in 1862. He did not really believe the electorate was made up of fools, and he knew that the blame did not lie entirely in the racial prejudice of the electorate. The Democrats had not continued to rely on such demagoguery alone and had not needed to. All that the Democrats had done was to recognize the electoral opportunity and organize to exploit it. Although some losing candidates complained about Democratic race-baiting, other Republicans explained the election losses in 1862 without expressing exasperation over the use of the issue or slogan of white supremacy against them.114 They did not blame the prejudices of the electorate in general or of the Democrats in particular. They blamed the president. He had failed to lead them into a vigorous campaign against a party enemy who proved to be always dangerous, and he had not won the war yet. Lincoln did not prepare the electorate because he was not preparing for anything political. For once in his life, he was paying little attention to electioneering or the electoral calendar, with dates for key elections so proximate to the time when emancipation was likely to be proclaimed. The elections of 1862 were not a barometer of racist resistance to the newly announced policy of emancipation. The results stemmed more from Republican inactivity and from Democrats’ anxieties to save their party organization and identity, than from a new surge in white supremacist energy.

114

 For a good example of a Republican complaint see Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment, 162.

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chapter 3 Peace, “White Supremacy,” and the Problem of a Loyal Opposition

To question the sovereign role of racism in determining Democratic behavior during the Civil War, as the previous chapter has done in the case of the elections of 1862, is to open the gates to a wholesale re-examination of the party’s history under the Lincoln administration. For the most part, their history from 1861–1865 has been simply neglected. The last full history of the party’s role during the war was published thirty-seven years ago.1 The advent of social history with its concern for recovering the voices and agency of persons previously neglected in American history, did nothing to stimulate consideration of the Democracy. It was a sure bet that there would be no African-American voices to be heard in the Democratic party of the Civil War era. Still, it is quite another matter to leap to the conclusion, widely agreed upon today, that the Democratic party at the time of the Civil War and well before was the party of “white supremacy.” And the discovery in Chapter 1 of the party’s observation of the boundaries of politics out of respect for the survival of the Union calls into question the lingering suspicions among historians that the Democrats during the war stood for peace at any price. In truth, each of those conclusions, the one widely embraced and the other stubbornly persistent, requires a leap well beyond the documentary evidence. We simply do not understand the Democrats, study them enough, or make much of an attempt to see the Civil War through their eyes.

1

 Joel H. Silbey, A Respectable Minority: The Democratic Party in the Civil War Era, 1860–1868 (New York: W. W. Norton, 1977).

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Peace No one would deny that there were Democrats calling for peace, often stridently, during the Civil War, but the important question is, how large was the peace wing of the party? Did the peace men ever really threaten the war effort or the restoration of the Union? As recently as 2006, Jennifer L. Weber in Copperheads: The Rise and Fall of Lincoln’s Opponents in the North, argued that “the peace movement was broad, and so influential by August 1864 that it very nearly took over the Democratic Party.” She denied assertions from two generations of historians before that it constituted “a fringe group at best.” The dean of Civil War historians James M. McPherson agreed that “they represented a genuine and dangerous threat to the Lincoln administration’s ability to carry on the war.”2 It must be admitted that the peace wing of the party was larger than one would expect it to have been, given ordinary competitive party dynamics. The Republicans, the dominant party during the war, suffered from serious factionalism, reaching nearly to the point of schism and creation of a third party in the election of 1864. Disaffected Republicans that summer put together a competing coalition, nominated John C. Frémont for presi­dent, and published a national platform emphasizing abolition of slavery and restoration of civil liberties (supporters of Lincoln managed to get Frémont to withdraw his candidacy on September 22 in time to save the election for Lincoln). Such developments are natural for parties enjoying overwhelming political dominance. The Republicans controlled the presidency, the Congress, and, by 1864, the United States Supreme Court. By 1865, according to Eric L. McKitrick, Republicans enjoyed “majorities” in “every legislature and every congressional delegation,” and Republican governors ran every state (above the border states).3 To recognize the extent of Republican control makes that party’s factionalism understandable, and it also suggests what should have been the Democratic party’s strategy for 1864: unite and say little about issues. Instead, the Democrats suffered bitter factionalism over the issue of peace, a phenomenon that has never been adequately explained. Their peace movement never reached third-party status, but the peace faction 2

 Jennifer L. Weber, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (New York: Oxford University Press, 2006), 1, 2, 10, 11. McPherson’s remarks appear in his foreword to the book, on p. x. 3  Eric L. McKitrick, “Party Politics and the Union and Confederate War Efforts,” in Walter Dean Burnham and William Nisbet Chambers, eds., The American Party Systems: Stages of Political Development (New York: Oxford University Press, 1967), 149.

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managed to insert a disastrous plank in the 1864 presidential platform, calling the war a failure and urging an armistice and a convention of the states to settle the issues of the war. It is impossible to explain by ordinary historical methods why some individual Democrats became peace advocates while others did not. Only personal psychological interviews might do that, and the opportunity for those is long gone. But we can at least measure the extent of the factionalism that came to exist after all those individual choices were made.4 Because the pro-war wing of the party gained the nomination of their candidate, George B. McClellan, for president in 1864, the Democratic candidates in the gubernatorial elections of the previous year have come sharply into view as the most observable successes of the peace movement. Conservative candidates gained nomination in two electoral giants, Ohio and Pennsylvania, and in a third, but less important state, Connecticut. Such a group, slashing across the North from Hartford to Columbus, cannot be dismissed as a sectional Western movement. How, then, could peace possibly have been marginal in the party? Political historian Michael F. Holt posed a tough question when he wrote, “historians intent upon refuting the legend of Democratic Copperheadism could not deny the embarrassing presence of strident antiwar Democrats such as Ohio’s Clement L. Vallandigham, Pennsylvania’s George Woodward, and Connecticut’s Thomas Seymour, all of whom captured Democratic gubernatorial nominations in 1863.”5 These candidates hold the key to understanding the extent of peace sentiment in the Democratic party during the Civil War. The peace movement, at its earliest, was confined mostly to a handful of pro-Southern cranks, like James Wall of New Jersey, but it emerged as a movement in 1863, when many in the Democratic party misinterpreted the 1862 off-year election results, in which the party performed surprisingly well, as indicating that the voters longed for peace and that 4

 For early work on the movement see Frank L. Klement, “Middle Western Copperheadism and the Genesis of the Granger Movement,” Mississippi Valley Historical Review, 38 (March 1952), 679–694 (repr. with other Klement articles in Klement, Lincoln’s Critics: The Copperheads of the North, ed. Steven K. Rogstad (Shippensburg, Pennsylvania: White Mane, 1999)). Klement’s first book on the subject was The Copperheads in the Middle West (University of Chicago Press, 1960). See also Richard O. Curry, “The Union as it Was: A Critique of Recent Interpretations of the Copperheads,” Civil War History, 13 (March 1968), 25–39. 5   Michael F. Holt, “An Elusive Synthesis: Northern Politics during the Civil War,” in James M. McPherson and William J. Cooper, eds., Writing the Civil War: The Quest to Understand (Columbia: University of South Carolina Press, 1998), 123.

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the party should nominate peace candidates.6 Democrats nominated Seymour, Woodward, and Vallandigham in 1863, all right, but the most important thing to note about them is that they were not all nominated at the same moment in that year. Close attention to chronology and contingency is critical in understanding the meaning of their candidacies. There was only one genuine peace candidate in 1863, Thomas Seymour, of Connecticut; he was the only one nominated for the sake of his record on peace. A former governor of the state, Seymour (see Fig. 3.1) had consistent peace credentials and Connecticut Democrats chose him to run for governor in 1863 because of those credentials. He was opposed to the war from the very start and was proud of his consistent record. As a member of the Connecticut legislature in 1861 Seymour said, “There seems to be a radical mistake on the part of many people. They appear to think the South can be conquered. Sir, this is impossible. You may destroy their habitations, devastate their fields and shed the blood of their people, but you cannot conquer them.”7 The New York Herald, which hated Copperheads as much as it hated abolitionists, termed Seymour “an unmitigated copperhead peace agitator.”8 Connecticut Democrats knew what they wanted in a candidate in 1863. One delegate at the state convention, which met on February 18, stated boldly, “We are against the War. The elections of other states have not been understood by the President. There have been too many War Democrats chosen. When Thomas H. Seymour is elected, the President will understand what it means.”9 The platform was not so direct, but that was to be expected. Like parties everywhere the Democracy in Connecticut balanced factions by handing the nomination to one faction and the platform to the other (a practice that would backfire completely on the national party in 1864). The word “peace” was not mentioned in the Connecticut platform in 1863. Still, the Connecticut Democrats were not likely to be misunderstood. The platform’s fourth resolution asserted “That the democracy of Connecticut, sympathizing with their conservative brethren of the Middle and Western States, pledge themselves to unite with them in the adoption of all honorable measures having in 6

 Ibid., 123–124; Eric L. McKitrick, “Party Politics and the Union and Confederate War Efforts,” 149. McKitrick says they “overstepped themselves” after the 1862 elections. 7  Matthew Warshauer, Connecticut in the American Civil War: Slavery, Sacrifice, and Survival (Middletown, Connecticut: Wesleyan University Press, 2011), 55. 8  New York Herald, April 8, 1863. 9  Matthew Warshauer, Connecticut in the American Civil War: Slavery, Sacrifice, and Survival, 108.

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3.1  Thomas H. Seymour. (Collection of the author.)

view the cessation of hostilities.” That resolution, and the one denouncing “‘the monstrous fallacy’ that the Union can be restored by the armed hand,” came as close as the convention was going to get to saying the word “peace” in their formal platform. Even to go that far in early 1863 was shocking to many. Seymour lost. Election day in Connecticut fell in April, early enough in the year that Democrats in Pennsylvania and Ohio, who did not write their platforms and select their candidates for governor until summer, could take that loss into account. Those Democrats who were driven by calculations based on election results knew exactly what to do: avoid peace. All they had to do to understand the lesson was to read the independent New York Herald’s incisive coverage of the 1863 New England elections (the region retained the old practice of electing governors for one-year terms). The Herald stated, upon the basis of election returns from Rhode Island, even before the Connecticut results were in, that the Democratic party had misunderstood the meaning of the off-year elections of 1862. Those returns had “broadly and plainly expressed the dissatisfaction of the loyal States with the blundering, squandering and disastrous way in which this war has been conducted,” but “were construed by these deluded copperheads into a popular reaction against the war itself, and in favor of peace.” “Acting upon this most outrageous misconception of public opinion,” the party had put the likes of Thomas Seymour in the field. The recent Democratic losses in New England, the

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shrewd paper observed, “put an end to all arguments in favor of armistices or conventions, or mediation in any form.”10 When the results from Connecticut came in, the Herald crowed even more loudly. The people of Connecticut, the editors said, “administered a signal rebuke to the Northern disorganizers of the copperhead faction.” “These lessons from the people,” they added, “are instructive, and it is to be hoped will lead a considerable number of even the moonstruck copperhead peace agitators to the benefits of a little cool reflection.”11 Some Democrats were eager to capitalize on that lesson. The Pittsburgh Post, a Democratic newspaper that staunchly supported the war effort, analyzed the Connecticut results this way: “the greatest difficulty the Democrats of Connecticut had to encounter was the record of their candidate, ex-Governor Seymour . . . his peace platform, from the day hostilities commenced until the day of the election, is not the thing to meet the exigencies of the occasion.” It might work, they said, if there was a peace party in the Confederacy to deal with, but there was no such thing.12 The party learned its lesson. Thomas H. Seymour proved to be the only candidate for governor nominated because he advocated peace, in 1863 or indeed in the whole Civil War. The other two famous Democratic candidates for governor nominated in 1863 gained their nominations under very different circumstances and with very different issues dominating the minds of the politicians who nominated them. The first of them – and the order in which they were chosen matters a great deal – was Clement L. Vallandigham of Ohio (see Fig. 3.2). He had peace credentials more notorious than Seymour’s, but that is not why he was nominated for governor. He gained the nomination because Democrats across the whole nation saw him as a martyr to liberty. His sensational arrest at home in the middle of the night by military authorities under the command of General Ambrose Burnside, on May 5, 1863 after giving a speech at a political rally in Ohio, established Vallandigham’s essential credential for nomination. The New York Herald recognized right away that General Burnside had given Vallandigham a gift. Shortly after his arrest but almost a month before his nomination for governor, the Herald asserted that Vallandigham “has been trying hard to be a martyr .  .  . His chance of being elected Governor of Ohio was small till now.”13 Commenting on his nomination on June 11, 10

 New York Herald, April 4, 1863.  Ibid., April 8, 1863. 12  Pittsburgh Post, April 8, 1863. 13  New York Herald, May 14, 1863. 11

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Figure 3.2  Clement L. Vallandigham. (Library of Congress Prints and Photographs Division, Washington, D.C.)

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1863, the Herald could boast, “We predicted that this would be the result of the foolish policy which impelled Burnside to commit a flagrant breach of the constitution and laws in arresting him and trying him by court martial.”14 The paper never changed its mind on the subjects of peace and the Ohio nomination. On the eve of the 1863 election the next autumn, the Herald stated that “The great mistake of Vallandigham and all other copperheads was their false interpretation of the elections last fall.” And the editors added, “We know that to his arbitrary arrest, trial, condemnation and deportation to Dixie . . . Vallandigham was indebted for his nomination . . . We know that he was nominated as a martyr of arbitrary power.”15 Even one of the Ohio Democrats who served as his counsel after the arrest, George Pugh, said, “I may not agree with Mr. Vallandigham in all his opinions respecting the prosecution or the conclusion of this war . . . but I will maintain his right to express those opinions.” George Pendleton, 14

 Ibid., June 13, 1863.  Ibid., October 13, 1863.

15

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who was widely considered a great liability as George B. McClellan’s running-mate in 1864 because of his reputation as a peace Democrat, stressed civil liberties when he could during the 1863 Ohio campaign. Speaking about his support of Vallandigham, Pendleton said, “should I leave no other inheritance to my children, by the blessing of God, I will leave them the inheritance of free principles and the example of a manly, independent and Constitutional defense of them.”16 Samuel S. Cox, who had spoken from the same platform after Vallandigham had given the speech that resulted in his arrest and who later testified at his military commission trial, explained to the editor of the New York World shortly before Vallandigham’s nomination that Democrats in the West did not “approve of anything Vallandigham says only his right to say it.”17 Much of the Democratic press had the meaning of the nomination clear at first also. The Harrisburg Patriot and Union, for example, said immediately after learning of Vallandigham’s arrest that it had never approved of his doctrines because he was “too radical for us.” Nevertheless they sympathized with his plight and condemned his being deprived of the right to criticize the government.18 Thus in a wave of public outrage over the military arrest of this Democratic politician simply for criticizing the government in a speech, the Democrats of Ohio, on June 11, 1863, nominated Vallandigham for governor. The Ohio Democratic platform in 1863 was long but it did not contain a peace plank.19 A political party nominates a real person, however, and once the election campaign begins, the whole person must be defended, and in this case, the candidate had stubborn and embarrassing peace convictions. The Republicans set out to defeat Vallandigham not by defending his arrest but by tarring the Democratic nominee as a traitor who did not support the war. Because of his arrest, conviction, and banishment from the country, the nominee was in exile in Canada during the canvass and could not defend himself in person. Surrogates in Ohio had to do all the work of defending his outrageous record.

16

 Thomas S. Mach, “Gentleman George” Hunt Pendleton: Party Politics and Ideological Identity in Nineteenth-Century America (Kent State University Press, 2007), 87. 17  Samuel S. Cox to Manton Marble, June 1, 1863, Manton Marble Papers, Library of Congress, microfilm edition, reel 2. 18  Harrisburg Patriot and Union, May 15, 1863. 19  American Annual Cyclopaedia and Register of Important Events of the Year 1863, vol. III (New York: D. Appleton, 1872), 730.

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For some of the party’s leaders in Ohio it was uphill work. Samuel S. Cox said as he began to campaign for Vallandigham that the “only issue, we make here, is the right of free speech.”20 He stumped the state with George Pugh. “Personal liberty is the only issue Pugh and I make,” he insisted.21 Even so, the Republicans had an easy time branding Vallandigham as a peace candidate. As the Ohio Democrats rallied around their candidate – who was notorious everywhere in the nation for his peace sentiments – it seemed from afar that Ohio Democrats were infatuated with peace. Vallandigham lost by a large margin in the autumn, and that left the majority of Democrats elsewhere in the country with the impression that peace was political suicide, all right, but that Western Democrats were somehow besotted with peace, and compromises would have to be made to keep the party together for the presidential contest in 1864. Pennsylvania Democrats also chose their gubernatorial candidate in the summer of 1863, and the timing was critical: They met in convention a week after the Ohio Democrats nominated Vallandigham. Civil liberties and Vallandigham’s martyrdom, not peace, were uppermost in their minds. Pennsylvania had no viable martyr candidate, however, and after several ballots, they chose a justice of the state supreme court, George W. Woodward (see Fig. 3.3), as their candidate for governor and the next best thing to a martyr to liberty. Who could better stand for the protection of Pennsylvania’s civil liberties from the administration in Washington? Woodward was not in any obvious way a peace candidate. In fact, he had hardly any public political record, as he had been on the bench for years, and it was widely regarded as inappropriate for judges to campaign for political candidates. True to form, Woodward gave no political speeches in the campaign after he was nominated. He might as well have been in exile in a foreign country like Vallandigham. He too became a surrogate candidate, and the Republicans had a field day making of him what they wanted. What they wanted was to make Woodward out to be another Vallandigham. They succeeded – at the time and ever since. It was the Republicans who claimed that Woodward stood for peace. The Democrats made no such consistent claim for him. The Democratic platform went on and on about threats to the Constitution, and the Pennsylvania Democrats offered specific “thanks . . . to the democracy

20

 Samuel S. Cox to Manton Marble, June 14, 1863, Manton Marble Papers, Library of Congress, microfilm edition, reel 2. 21  Samuel S. Cox to Manton Marble, August 17, 1863, ibid.

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Figure 3.3  George W. Woodward. (Library of Congress Prints and Photographs Division, Washington, D.C.)

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of Ohio for the vindication they have given to the Constitution.”22 Thus the Democrats of Pennsylvania directly acknowledged the source of inspiration for their platform and candidate: Ohio’s civil liberties protest symbolized by the martyr to liberty, Vallandigham. Woodward also went down to defeat in October but not before the Republicans had permanently transformed his image into that of a strident candidate for peace. The New York Herald, which never had a kind word for a Copperhead, admitted on the eve of the election in Pennsylvania that “The Republicans, for political purposes, have insisted that Judge Woodward is a copperhead; but such is not the fact.”23 A bitter Democrat from Cincinnati reported after Vallandigham’s defeat that the party was ruined not only in Ohio by “this most unwise nomination” – “it ruined us in Penna.” It “tainted the whole party,” he said. “[I]n Penna I know the abolitionists kept the name of our candidate more prominent than they did Judge Woodward.”24 22

 The American Annual Cyclopaedia and Register of Important Events of the Year 1863, vol. iii, 739. 23  New York Herald, October 9, 1863. 24  J. N. Baldwin to Manton Marble, October 29, 1863, Manton Marble Papers, Library of Congress, microfilm edition, reel 2.

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The unfortunate plight of the candidate reliant on political surrogates for his defense on the campaign trail is clear in Woodward’s case. When in early September 1863 Democratic spokesman Jeremiah Black asked Woodward whether there was something he wanted him to say in an upcoming speech in Lancaster, the candidate, obviously exasperated by the unfair Republican attacks on him, replied: I am satisfied that the only impression my furious assailants have made on the public mind to my prejudice relates to my “unionism” or “loyalty” . . . To that point I desire you to address a few strongly pointed remarks . . . If I have not venerated the constitution which established this confederacy of free & slave states – if I have not thank’d God again & again for the men who fixed up this Union for you & me and our children – if I have not scorned and denounced the transcendental, hypocritical, canting philanthropy that would overthrow the work of the founders & set up a negro despotism upon its ruins – if I have not paid my taxes, contributed money and sons to fight our battles, and in general performed the duties of an humble but loyal citizen then testify against me. My Grandfathers fought the battles of the revolution. If my father had not lost one of his hands he would doubtless have fought in the war of 1812. My sons have taken part in the present war. The family has been in the country since 1640 . . . Now cant. you convince the people of Penna. that no traitor blood lurks in my veins?25

When we read what an animated defense Woodward could mount in that letter, it seems clear that the Democrats missed an opportunity by leaving his defense to others. He could have taken care of himself. After the Pennsylvania election was over the Democratic newspaper in Johnstown commented bitterly about the party’s campaign in the state. “There was no clearly defined program,” said the editor. And the result of the Democrats’ want of clarity in running the all-but-anonymous Woodward was that “the opposition were allowed all the advantage of making a false issue and putting themselves on the popular side of it.”26 To judge from the gubernatorial elections of 1863, we can see that historians have greatly exaggerated the size and reach of the peace movement in the Democratic party. There was only one peace candidate in 1863, chosen as such, Thomas H. Seymour. Because of Republican success in depicting the Ohio and Pennsylvania gubernatorial candidates and their supporters as peace agitators, however, most people, including 25

 Jonathan W. White, ed., “A Pennsylvania Judge Views the Rebellion: The Civil War Letters of George Washington Woodward,” in Pennsylvania Magazine of History and Biography, 129 (April 2005), 219. 26  Johnstown Democrat, November 25, 1863.

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Democrats in other parts of the country, assumed the peace wing of the party was larger than it really was and would have to be appeased in the Democratic national nominating convention in 1864. Historians have been fooled as well. 1863 was more a political climax during the Civil War than the presi­ dential election year of 1864. The 1863 results determined the nature of Republican campaigns thereafter. They ran against all Democrats – including General McClellan, in 1864 – as though they were Clement L. Vallandigham. The 1863 results also exaggerated in the minds of the Eastern Democrats who engineered the nomination of McClellan for president that the Ohio Democracy must be appeased on the peace question – and they allowed the peace men too much sway on the platform committee in 1864. The party ran a war candidate on a peace platform in 1864 and became a laughing stock in its own day – and for many historians it remains so today.

“White Supremacy” “White supremacy, resolute and explicit, constituted an essential component of what contemporaries called ‘the Democracy,’” writes Daniel Walker Howe in the Pulitzer Prize-winning book What Hath God Wrought: The Transformation of America, 1815–1848.27 That book deals with the origins of the Democratic party in the Jacksonian era, and thus his remark is meant to characterize the party decades before the Civil War. Presumably, the importance of the issue only grew in the period of great sectional political strife that followed and led to civil war. The term has come to be closely associated with the party during the Civil War, and the central importance of the racist appeal of the Democrats in the 1864 presidential election has become a staple in modern writing on the war. Thus in a 2009 book Paul D. Escott said the Confederate government’s plans in the waning days of the war to recruit slaves for their cause, foundered on “the same assumptions of white supremacy that affected policy in the North and led to postwar patterns of oppression.”28 In the most recent book on the subject of the Thirteenth Amendment ending slavery, Leonard L. Richards says of the Democratic party and its elite leadership in New York City (a junto which will be discussed presently in 27

 New York: Oxford University Press, 2007, 243.  Paul D. Escott, What Shall We Do with the Negro? Lincoln, White Racism, and Civil War America (Charlottesville: University of Virginia Press, 2009), 170.

28

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this chapter), “they were zealous supporters of white supremacy.”29 That view echoed Iver Bernstein’s description of the political views of the same prominent New York Democrats in 1863. Their views boiled down to “veneration of McClellan” and, “most important, the shrill rhetoric of white supremacy.”30 The most extensive discussion of the racial views of the Northern Democrats appears in Jean H. Baker’s Affairs of Party: The Political Culture of Northern Democrats in the Mid-Nineteenth Century. The book offers rich depictions of the depths of racism in American popular culture at the time with powerfully memorable illustrations of the brutally crude graphics of the mid-nineteenth century. These images play a role far more important than mere “illustration” in the book. She argues for their shaping impact on racism in the North, and especially among Northern Democrats. The prejudiced image of the African-American “was a powerful sentiment because it drew on pictorial images long established in the Democratic mind.”31 Describing this form of “popular culture” as “[a]n artistic production free from upper-class correction,” she argues rightly that it “serves as an indicator of public sentiment.” She goes on to say, “Popular culture, a neglected expression of the historically voiceless, not only defined the nature of the Negro’s inferiority but also provided a domain within which Democrats developed specific public policies. By using its language and symbols, party leaders linked popular sentiments to party agenda.”32 Baker is careful to say that “not all Northern Democrats took race as the foundation of their political thinking.”33 Historians writing since have not always been as scrupulous in maintaining such distinctions, as we have seen in the previous paragraph. As for the role of the Democrats in the political history of the war itself, she puts considerable emphasis on the issue of miscegenation in the presidential campaign of 1864 – also to be discussed at length presently in this chapter – an emphasis that has grown in historical writing since.34

29

 Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment (University of Chicago Press, 2015), 166. 30  Iver Bernstein, The New York City Draft Riots: Their Significance for American Society and Politics in the Age of the Civil War (New York: Oxford University Press, 1990), 146. See also p. 147. 31  Jean H. Baker, Affairs of Party: The Political Culture of Northern Democrats in the MidNineteenth Century, orig. pub. 1983 (New York: Fordham University Press, 1998), 257. 32  Ibid., 213. 33  Ibid., 181. 34  Ibid., 252–253.

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Baker’s approach is broad brush, attempting to describe the attitudes of a whole era, of which the unique Civil War formed only a part. Thus she quotes historian Glenn Linden to the effect that “‘It is clear that most Democrats were opposed to any measure which would significantly change the status of the Negro,’ and their opposition remained ‘clear and constant’ during the years 1838–1869.”35 Again, in describing Democratic political rhetoric, she says, “Nowhere were the connections between the visible racial opinions of Democratic leaders and the attitudes of the historically voiceless more apparent than in the Negro speech, a form of jere­miad used by Northern Democrats from 1850 to 1880.”36 She says also, of racial stereotypes, “From 1850 to 1880, missile words and slogans familiar to Northerners through popular culture appeared in the party’s cartoons and broadsides.”37 Yet there were developments and changes in the image of African-Americans in that period, and the fouryear span of the Civil War in which so many political and social changes occurred deserves to be examined more closely. Although Baker herself generally avoids use of the term “white supremacy,” it was among those vital racist “missile words and slogans” employed by Democrats in the mid-century era. A more careful look at its uses in the period will show that racist views were not expressed with consistent emphasis across the generations from 1838 to 1880. Ultimately, the importance of “white supremacy” to the Democratic party comes down to a matter of emphasis – how often it was used in the party press, with what frequency and bitterness it was used by speakers, and in what situations it was hauled out – for example, in the national party platform. We should remember the important terms Howe used to describe the idea – “resolute and explicit.” Like other people of that era, Democrats evinced racist attitudes, but “white supremacy” should be seen as an aggressive and crusading political identity, not a matter only of prejudicial remarks. Otherwise, Abraham Lincoln himself would qualify as a white supremacist. In the famous statement Lincoln made in his debate with Stephen A. Douglas in Charleston, Illinois, on September 18, 1858, he said: I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races . . . I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, 35

 Ibid., 249.  Ibid., 253. 37  Ibid., 255. 36

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nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality. And insasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race.38

“For ever,” Lincoln said. He did not think at the time that he or the country would grow out of these racial beliefs. Political statements on race are contextual like other political statements. So it was with the statements Democrats made during the Civil War. At one time or another most Democratic newspapers made statements like the one Lincoln made in 1858. And key speakers did assert the supremacy of the white race in key speeches at key times. Jeremiah Back, formerly a member of President Buchanan’s cabinet, spoke in Pennsylvania on November 4, 1864, shortly before election day, and stressed the race identity of the country. “The white men,” Black said, “asserted their supremacy in this country, as they did everywhere else in the world. They founded a nation, and formed a government to be controlled exclusively by themselves and their own posterity.” He added that they “gave the negro . . . only such protection and kindness as were due, in a government of laws, to a subject and inferior race.”39 Surely a white supremacist eagerly volunteers the information without being pressed. If asked what he or his party stands for, surely the white supremacist answers, first, foremost, and always, “white supremacy” – and not the Constitution and the Union. Only fanatics during the Civil War identified themselves as white supremacists first and foremost and at every opportunity. And the first and foremost fanatic was John H. Van Evrie. The term “white supremacy” as a rallying cry in politics was coined only shortly before the Civil War and not widely used before Reconstruction – that is a point of chronology crucial to understanding Civil War politics. The man who coined the term and the most prominent advocate of white supremacy in the Civil War Democratic party was John H. Van Evrie. History knows little about him. He was, presumably, a medical doctor, for he used the title “Dr.” He coined the term “white supremacy” as early as 1856 in his newspaper, the New York Day-Book (see Fig. 3.4), when he wrote about the “natural law of white supremacy 38

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, New Jersey: Rutgers University Press, 1953–1955), 3:145–146. 39  Lancaster Intelligencer, November 3, 1864.

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Figure

Lincoln and the Democrats

3.4  Offices of the New York Day-Book. (Collection of the author.)

and negro subordination.”40 Van Evrie gave the term its first prominent place in the title of a book published in 1867, White Supremacy and Negro Subordination or, Negroes a Subordinate Race, and (So-called) Slavery Its Normal Condition.41 The date of publication offers a crucial clue to the role of white supremacy as Democratic party doctrine in the nineteenth century: Its role during the Civil War was not as great as it would become during Reconstruction. The reason for that late blossoming of the doctrine was simple: It required the return of white Southerners to the Democratic party after the war, during Reconstruction, to make white supremacy sovereign orthodoxy in the party. If one had asked Van Evrie, the father of white supremacy, whether the Democratic party stood for his doctrine during the war, he would have answered promptly and emphatically, “no.” He was in a good position to know. He suffered a very distant and troubled relationship 40

 New York Day-Book, May 5, 1856.  The book was first published under that title in New York by Van Evrie, Horton & Co. A second edition appeared quickly in 1868.

41

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with the Democracy throughout the Civil War. The party never took to Van Evrie, and it took to his slogan only during Reconstruction. One would never know that from reading the current literature on race and the Democratic party during the Civil War. Paul D. Escott, for example, describes Van Evrie as “a New York doctor closely allied with the Democratic Party.”42 Leonard L. Richards says that Van Evrie, in an “[e]specially vile” response, “had a field day” exploiting the miscegenation issue in 1864 (in fact, he was so far from knowing the Democratic party’s secrets that he was, as we shall see, taken in by the hoax as much as anyone).43 And even Jean Baker, who was trying to head off blanket assumptions about the Northern Democrats, characterized Van Evrie as a “Democratic pamphleteer” and editor of a “popular” racist newspaper who “provided . . . basic doctrine” to the Democrats on pseudo-scientific racism.44 Van Evrie’s relationship to the Democratic party, in fact, was always distant and troubled, and the party never looked to him for its “basic doctrine.” Surprisingly, the roots of the term were as much Whig as Democratic.45 The New York Day-Book, where the term first appeared, began as a Whig newspaper published in New York City. It was founded in 1850 by a man named Nathaniel B. Stimson.46 The paper was extremely pro-Southern. Ironically, Stimson came to this sympathetic view of the South and slavery while working as a youth in the store of the famous abolitionist, Arthur Tappan, in upstate New York. There he “first conceived” his “mortal hatred to Abolitionism.”47 Eventually Stimson became a Democrat and in 1855 discovered Dr. John H. Van Evrie, a “radical” Democrat, to whom he soon turned over the editorial duties. Stimson died young, at age 42, and Van Evrie found a new partner, Rushmore G. Horton. Horton was a loyal Democratic scribbler to whom the party turned in haste in the summer of 1856 to write a campaign biography of their presidential 42

 Paul D. Escott, What Shall We Do with the Negro? Lincoln, White Racism, and Civil War America, 46. 43   Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment, 173. 44  Jean H. Baker, Affairs of Party: The Political Culture of Northern Democrats in the Mid-Nineteenth Century, 178–180. 45  For evidence of attraction to the racism of American popular culture in general among Whigs and even Republicans see Mark E. Neely, Jr., The Boundaries of American Political Culture in the Civil War Era (Chapel Hill: University of North Carolina Press, 2005), 97–127. 46  New York Day-Book, March 11, 1856. 47  Ibid., December 1, 1857.

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candidate, James Buchanan.48 Van Evrie and Horton became proprietors of the Day-Book in 1857. Their printing presses were the most bountiful and important sources of racist literature published during the Civil War. Van Evrie, Horton & Co. during the war published a newspaper, the Day-Book or Caucasian. They also published an ultra-conservative racist monthly journal – the Old Guard, edited by a fellow extremist named C. Chauncey Burr. From their presses also tumbled numerous racially obsessed pamphlets – such as Free Negroism, or, Results of Emancipation in the North and West Indian Islands: With Statistics of the Decay of Commerce, Idleness of the Negro, His Return to Savageism, and the Effect of Emancipation upon the Farming, Mechanical and Laboring Classes (1862), and The Negro’s Place in Nature, a lecture by James Hunt of the London Anthropological Society (1864). No individual contributed more to racism in United States history than John H. Van Evrie. Van Evrie had come up with a brutally simple solution to the slavery problem of the United States. He denied that there were any slaves. Africans constituted an inferior race whose natural status, when they lived among Caucasians, was slavery. Their condition bore no resemblance to and could not usefully be compared with the enslavement of white men by other white men in history. He showed no interest in Greek and Roman history and slave regimes of the ancient classical past. Terminology was important, he insisted. The Africans and their descendants were not “colored men,” as antislavery people were likely to term them. They were not men of a slightly different hue from whites. They were men, Van Evrie admitted, but so far different from Caucasians as to be historically, politically, and socially incomparable. Slavery was their “natural” condition. Since there was thus no slavery in the United States, Van Evrie nearly always put the word “slavery” in quotation marks when discussing public policy of the United States. With no slavery to be abolished, what really needed to be abolished in the country was abolitionism. Van Evrie clung to that original and basic idea for the whole of the mid-century. When the war came, Van Evrie and Horton coupled extremist views on race with unpopular defeatist views on the war and therefore traveled a rocky road through the conflict. They received little help from the Democratic party. In fact, when the going got tough, the Democrats simply cut them adrift.

48

 R. G. Horton, The Life and Public Services of James Buchanan (New York: Derby & Jackson, 1856). He added some material and published a revised edition the next year.

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As soon as the war began, the Day-Book was in trouble. On the afternoon of April 17, 1861, only five days after the Confederates fired on Fort Sumter, a pro-Union mob formed in New York City and marched to several newspaper offices to compel those who had not hoisted an American flag to show their colors. One of the papers the mob confronted was the Day-Book.49 The Democratic party in New York City moved immediately after the mobbing of the Day-Book not to salvage the racist newspaper but to distance themselves from it. They did not come to the defense of its racist doctrines. They did not even defend, under guise of constitutional argument, its right to express extremist views, as the Ohio Democratic party would do for Clement L. Vallandigham’s peace views in 1863. Instead the New York City Council, dominated by Democrats, moved to strike the Day-Book from the list of newspapers which the municipal corporation used for advertising and official printing. The city’s business was worth from $2,000 to $5,000 per year for each newspaper on the list. In the debate over the measure, one Democratic councilman said that he thought the Day-Book was publishing such extreme content in an attempt deliberately to provoke its own destruction by mob action so that the city would have to offer to purchase the paper in restitution.50 He did not consider the newspaper economically sustainable. Two other councilmen agreed that the circulation of the paper was so low as to render it useless for advertising in the city. The resolution to discontinue advertising carried in one of the branches, the Board of Councilmen, 17–4.51 The other branch of the city’s government, the Board of Aldermen, at first failed to pass the resolution. The arguments in the Board were revealing. One alderman identified the Day-Book as “a secession paper, published in this city for southern circulation,” and maintained that it had “but a few dozen city circulation.”52 The aldermen reversed course and ratified the ban on the Day-Book, when, in another development, the newspaper’s employees refused to raise a flag over the office when requested officially after the killing of Elmer Ellsworth, the colonel of the city’s famous Fire Zouaves regiment, in Virginia.53 49

 Allan Nevins and Milton Halsey Thomas, eds., The Diary of George Templeton Strong: The Civil War 1860–1865 (New York: Macmillan, 1952), 123. 50  As a result of Know Nothing anti-immigrant and anti-Catholic violence in the city in the mid-1850s, the council had mandated that the city be held financially responsible for damage caused by riots. 51  New York Times, May 17, 1861. 52  New York Day-Book, April 23, 1861. 53  Ibid., May 28, 1861.

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The controversy centered on the newspaper’s loyalty and not its racism. The Democrats were not denouncing the obnoxious racism of the Day-Book, but they were not coming to its defense either. The Democrats were not persuaded by any argument for the newspaper’s freedom to publish what it wanted. And the debate revealed the secret of this white supremacist sheet published in a Northern city: Its inflated circulation figures were dependent on the paper’s distribution by mail to states where slavery was legal.54 The paper advertised itself to New York merchants as “The Cheapest Medium to Reach Southern Trade.”55 The appeal of white supremacy to Democrats in the North on the eve of the Civil War was hardly central, even in a Democratic stronghold like New York City. White Southerners were its mainstay. If Van Evrie’s newspaper could run afoul of Democrats in New York City, then obviously it was going to have trouble with Republicans. The paper somehow managed to continue publication, but in August 1861 a federal grand jury in Manhattan raised the question to the judge whether they could indict and punish “certain newspapers within this district which are in the frequent practice of encouraging the rebels . . . by expressing sympathy and agreement with them, the duty of acceding to their demands, and dissatisfaction with the employment of force to overcome them.”56 The Day-Book was one of the papers in question. The judge and jury decided in the end to turn the question over to the next grand jury.57 Before the new grand jury met, the Republican administration in Washington acted. Postmaster General Montgomery Blair ordered the postmaster in New York City not to permit the newspapers “lately presented by the Grand Jury as dangerous for their disloyalty” to be transported in the United States Mail.58 The newspaper folded for a brief time and then re-emerged as The Weekly Caucasian. The determined postmaster general attacked the paper again in January 1862.59 It resumed publication again afterward. 54

 Circulation figures are difficult to come by and often inflated. The daily (local) circulation of the Day-Book may have been as low as 500, and its weekly circulation (national, but mainly Southern) as high as 40,000. See New York Day-Book, February 23, 1860, and May 14, 1861. 55  Ibid., April 10, 1861. 56  Robert S. Harper, Lincoln and the Press (New York: McGraw-Hill, 1951), 113–114. 57  New York Day-Book, August 17, 1861. 58  Robert S. Harper, Lincoln and the Press, 114. 59  Van Evrie, Horton & Co. to Abraham Lincoln, January 23, 1862, with enclosed clippings, Abraham Lincoln Papers, Library of Congress, microfilm edition, reel 22.

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Van Evrie, Horton & Co. persisted in their obsessive racism to the end. After the disappointing results of the presidential election of 1864, Horton became the secretary of the Anti-Abolition State Rights Society. Theodore Martins, chair of the executive committee of the organization, gave a speech in Clearfield, Pennsylvania, less than a month after the election, in which he lamented the Democratic party’s want of principle. “The party,” he said accurately enough, “which took the field against Mr. Lincoln professed to be an anti-Lincoln party. This was its specialty. As it went into the campaign it distinctly, almost offensively ignored, all platforms of defined principles; professing that the great thing first to be done was to get Mr. Lincoln out of power, and to establish principles afterward . . . Democracy was not really in the field at all, and its principles have not been passed upon in the late election.” For Martins, and presumably Horton too, “The principles held by the Democratic party are faithfully embodied in the Kentucky and Virginia Resolutions of 1798, and in the Dred Scott opinion of the Supreme Court of the United States – the one affirming the sovereignty of the States and the other the supremacy of the white race.” Martins’s and Horton’s society was seeking to organize affiliates in every town in order to “re-organize the Democratic party and bring it back to its old principles.”60 Such “reorganization” may well have meant essentially forming a third party. The champions of white supremacy would not be comfortable in the familiar old Democratic party until Reconstruction and the return of the white Southerners to the party. Although the very term “white supremacy” had not yet come into regu­ lar use, that is not to say that the idea was not present in the Democratic press and in Democratic political oratory. It certainly was. For example, the Harrisburg Patriot and Union after the announcement of the preliminary Emancipation Proclamation came very close to using the exact language, saying, “The present contest is a contest between the white and black races for supremacy. The white race is represented by the Democratic party – the black race by the Abolition-Republican party.”61 And the question, they added, could be settled at the ballot box soon. The drumbeat of demeaning racist references which accompanied white supremacist ideology was steady in much of the Democratic press during the Civil War, but not in all Democratic papers. In general, it can be said that reading about race in the Democratic press of the Civil War period is depressing and repellant today. Most Democratic newspapers used the 60 61

 Clearfield Republican, December 7, 1864.  Harrisburg Patriot and Union, September 25, 1862.

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term “nigger” at one time or another during the war, and many used the term frequently and with obvious relish. I read nineteen Democratic newspapers from Pennsylvania looking for race content for this book and all but three of them used the term at one time or another. And this hateful language was obviously not intended for Southern readers but for Pennsylvania locals. Still, the Pittsburgh Post, though it expressed racist ideas, always used the term “negro.” I could find the term “Sambo” used only once in that paper.62 Of course, even Republicans used the term – in private correspondence – but only extremely rarely in newspapers or speeches.63 Some Democratic editors recognized that the term was vulgar and demagogic. The Democratic Reading Gazette, for example, commented in early 1863 on the use of the term “Niggerhead Party” to describe the Republicans. The editor observed that the “New York Herald applies the name ‘Niggerheads’ to the Abolition leaders in Congress, as a set off to the senseless epithet of ‘Copperheads’ which is not so freely bestowed upon Democrats.” “It is a vulgar nickname,” the Reading editor went on to say, “and we disapprove of it.”64 A similar point was made in a letter to the editor printed in the Waynesburg Messenger in June 1863. The letter writer was denouncing the town’s Republican editor for his biased coverage of a Democratic mass meeting: You begin by calling the meeting “Copperhead.” We call ourselves Democrats and have done so during the present century. We never change our name. It takes your party to indulge in novelties of that sort. Calling names is not, in truth, a very dignified thing. Boys and low, vulgar fellows indulge in that sort of amusement – but if we were to retort by calling you “woollyheads,” anybody could see the point.65

In truth, the vast reservoir of racist vocabulary and smart-alecky references to African-Americans was an independent newspaper and not a Democratic one: the New York Herald. We can see that paper’s deleterious influence in the quotation above from the Reading Gazette; apparently Democratic newspapers adopted the term “Niggerhead” from the Herald, and likely much else along those lines besides.66 62

 Pittsburgh Post, May 18, 1864.  See, for example, V. Jacque Voegli, Free But Not Equal: The Midwest and the Negro during the Civil War (University of Chicago Press, 1967), 182. 64  Reading Gazette and Democrat, March 7, 1863. 65  Waynesburg Messenger, June 10, 1863. 66  The third Pennsylvania Democratic newspaper in which I did not see the term “nigger” used was the Doylestown Gazette. 63

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How do we weigh such evidence? Here is an example of real use. The New York Express, one of several Democratic newspapers in that Democratic bastion, New York City, reported in late August 1864, “that in several of the city wards[,] clubs have been organized under the name of ‘White Boys Club.’ The organizations are intended to excel the efforts put forth by ‘Wide Awakes,’ or any other Abolition organization.”67 To name the countervailing organizations formed by the Democratic party to meet the challenge of the old Republican Wide Awakes the “White Boys” was certainly important evidence of virulent racism in the Democratic party. But we also notice that the movement to found such clubs never got beyond the New York City wards. I could not find McClellan clubs anywhere else that were so named. In other words, this is evidence of racism but it falls short of constituting evidence that the Democratic party was primarily identified with white supremacy. The Democratic party during the Civil War was not the party of white supremacy, and all one has to do to be sure of that is to consult the man who coined the term.

“Miscegenation” The centerpiece of the argument that the Democratic party featured racism in the 1864 presidential campaign is the miscegenation hoax. The hoaxing pamphlet entitled Miscegenation and its derivatives in print and imagery did plumb the depths of gutter electioneering, but did the Democratic campaign boil down to a carnival of vulgar racist campaigning? According to David E. Long’s book, The Jewel of Liberty: Abraham Lincoln’s Re-election and the End of Slavery, for example, “the manipulation of the [race] issue during the 1864 campaign surpassed anything seen in any other national poll in American history.” “Leading Democratic politicians and much of the press,” he added, “exploited the question . . . far beyond the rough and tumble normally associated with nineteenth-century elections in the United States.” And the “most ballyhooed of all the attempts to exploit Northern racism in this election,” Long argued, was the miscegenation hoax.68 It has gained great prominence in evaluations of the 1864 election. Thus when the New York Historical Society decided recently to tell the story of The Civil War in Fifty Objects, one of the 67

 New York Evening Express, August 30, 1864.  David E. Long, The Jewel of Liberty: Abraham Lincoln’s Re-election and the End of Slavery (Mechanicsburg, Pennsylvania: Stackpole Books, 1994), xvii, 153. See Ch. 9.

68

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objects was a political cartoon based on the miscegenation hoax, entitled The Miscegenation Ball, and the explanation of the significance of the cartoon included an illustration of the original pamphlet, in salmon-colored paper wrappers.69 The Democrats certainly played their racist card in 1864, but they had been playing it since 1856. It had long constituted a part of the party’s appeals, and it was certainly not new or unprecedented. As for its special intensity in the campaign of 1864, that allegation certainly cannot rest on the party’s official platform forged at the nominating convention that met in Chicago in August, which did not mention race or emancipation. In fact, William A. Blair has recently pointed out that “the anti-emancipation stance took a back seat as an official party position” in the 1864 campaign, and indeed, the subject was hardly mentioned at the Chicago convention.70 The contrary case rests heavily on the curious pamphlet entitled Miscegenation: The Theory of the Blending of the Races, Applied to the American White and Negro, published in January 1864. It provides the focus of a whole chapter in Long’s book about the election of 1864.71 David G. Croly and George Wakeman, two employees of the New York World, concocted the hoax in secret late in 1863. Their pamphlet coined the term “miscegenation” and recommended genetic mixing of the races as the ultimate solution to American racial problems, urging especially marriage unions between Irish-Americans and African-Americans. The anonymous authors sent trial copies of the pamphlet to various antislavery leaders, including President Abraham Lincoln. Some of the abolitionists replied, at least one of them rather incautiously endorsing ideas in the pamphlet. Thus the truly damaging material for the Democrats’ purposes did not appear on the pages of the anonymous pamphlet itself, but in the replies of the abolitionists, and someone had to bring together the two parts of the hoax, the pamphlet and the reactions to it in letters from abolitionists. That job fell to Ohio Congressman Samuel S. Cox. On February 17, 1864, Cox denounced the pamphlet and its antislavery endorsers in a speech in the House of Representatives. 69

 Harold Holzer, The Civil War in Fifty Objects (New York: Viking, 2013), 282–285.  William A. Blair, With Malice toward Some: Treason and Loyalty in the Civil War Era (Chapel Hill: University of North Carolina Press, 2014), 10. See Official Proceedings of the Democratic National Convention Held in 1864 at Chicago (Chicago: Times Steam Book and Printing House, 1864). Most of the debates on the floor concerned McClellan’s record on civil liberties in Maryland, and peace. 71  For making Miscegenation the centerpiece of the Democratic campaign see, for example, David L. Long, The Jewel of Liberty: Abraham Lincoln’s Re-election and the End of Slavery, Ch. 9. 70

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From that point the fame of the pamphlet spread. Soon the neologism “miscegenation” became the term for marriage between black and white people used ever after, replacing the antebellum term “amalgamation.”72 No presidential campaign has ever been built around a political hoax, however. Even Democrats, who thought the worst of the Republicans and believed them truly capable of endorsing such social practice in an election year, remained wary. As a way of raising the issue of racial intermarriage in a presidential campaign Miscegenation was problematic. At 74 pages’ length, it was long for a piece of campaign ephemera and therefore expensive to print and trying on the patience of the reader. More importantly, since the pamphlet was disguised as a genuine recommendation of mixing the races, it could hardly be circulated by Democrats in its original form without explanation. One needed also to be aware of the content of Cox’s speech in Congress, which was published in Washington in 1864 as Miscegenation and Amalgamation: Fate of the Freemen.73 In the end, the Miscegenation pamphlet was dependent on the tried and true medium of political communication in the middle of the nineteenth century, the party newspaper. It was best suited to inspire newspaper articles denouncing the pamphlet and describing the reaction of the abolitionists. Therefore, the real test of the degree of reliance by the Democrats on the miscegenation issue lies in examination of the party press in the 1864 campaign.74 But the press was not in on the joke and sometimes proved wary. Miscegenation appeared too early in the electoral season and was too cumbersome to explain. After the introduction of the term – and it was not introduced everywhere – there was no common pattern of development. In other words, we cannot speak of its use as part of a systematic campaign strategy, for there was really no direction from above and no standard operator’s manual for party usage.75 72

 David E. Long, The Jewel of Liberty: Abraham Lincoln’s Re-election and the End of Slavery, 153–165. See also Sidney Kaplan, “The Miscegenation Issue in the Election of 1864,” Journal of Negro History, 34 (July 1949), 274–343. 73  The speech, called “Miscegenation” in the table of contents, was included in Samuel S. Cox, Eight Years in Congress from 1857–1865: Memoir and Speeches (D. Appleton, 1865), 352–370. He read copious amounts of the text of the pamphlet into the record and made the necessary connections with abolitionists. Cox apparently did not mention the miscegenation issue in his later book, the disorganized and discursive Three Decades of Federal Legislation (Providence, Rhode Island: J. A. & R. A. Reed, 1885). 74  This discussion is based on study of twenty-two Pennsylvania Democratic newspapers as well as papers from New York City, Dubuque, Chicago, and Cleveland, looking specifically for “miscegenation.” 75   The so-called “Democratic Handbook” was a compilation of pamphlets, without instruction on use, and apparently appeared very late in the campaign season, too late

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Newspapers in the hinterland introduced “miscegenation” as a neologism devised by Republicans to soften the “revolting” idea of “amalgamation.” They feigned or actually felt a reluctance even to speak of such a subject in a family newspaper. Thus one Pennsylvania newspaper explained, in March of 1864, that “miscegenation” was “a new word just introduced by the radicals of the Wendell Phillips’ school. It means the worship of the negro, and the intermarrying of the whites and the blacks. The word is not to be found in the dictionaries, but it is a new invention to soften down the disgusting term of amalgamation which means the same.”76 The term stuck – it is still with us – but in 1864 its use faded in some places. Pennsylvania’s Lebanon Advertiser, for example, used the term three times after March, did not use it at all in the autumn presidential campaign season, and even reverted to “amalgamation” in October (in a brief reference to another newspaper).77 Other newspapers referred to miscegenation off and on throughout the campaign season, and they often adopted as the slang term for the editor of the local Republican rival newspaper “the miscegens editor.”78 The record of emphasis and usage is mixed and betrays no signs of system, central control, or consensus among Democrats. The original hoax had lost steam by the heart of the electoral season, which began only in September of 1864 because of the lateness of the national Democratic nominating convention. Some then scrambled to revive interest in it. First, the New York World published a strained article alleging that Republicans in New York City had held a miscegenation ball on September 22, 1864, at which the organizers danced with African-American women.79 Sometime after the third week in to be of use in the election in many places. I consulted Hand-Book of the Democracy for 1863 & ’64. The volume is hundreds of pages long, is not continuously paginated, and lacks any publication information. There is also a similar Hand-Book of the Democracy, apparently published in New York City in 1864. For a discussion of the bibliographical variants see David M. Lesser’s Rare Americana catalogue no. 141, item 39 (Woodbridge, Connecticut, December 2014). There is no careful bibliographical work on the Democratic literature published for the 1864 campaign. 76  Lebanon Advertiser, March 23, 1864. The Democratic Gettysburg Compiler used the same language to introduce the term on April 11, 1864. The Waynesburg (Pennsylvania) Messenger referred to it in issues of April 27, May 11, and June 15, but lost interest by the time of McClellan’s nomination in August. 77  Lebanon Advertiser, May 4 and 25, 1864; July 13, 1864; and October 12, 1864. 78  See the Lancaster Intelligencer, September 29, 1864 and the Harrisburg Patriot and Union, February 22, March 4 and 15, April 18, September 24 and 28, 1864. The Harrisburg paper was a daily and thus had many more opportunities to use the term. 79  See Harold Holzer, The Civil War in Fifty Objects, 281.

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September the Democratic Central Executive Campaign Committee published Campaign Document No. 11 Miscegenation Indorsed by the Republican Party, and Van Evrie published an abridged version of it called Campaign Broadside No. 1 – Miscegenation Record of the Republican Party. Key state elections occurred in October in Pennsylvania, Ohio, and Indiana, and these materials appeared too late in the season for effective exploitation. The graphically racist publications circulated by the Democratic party in 1864 jump out at our modern eyes, but they were only a part of the large number of political materials devoted to a multitude of controversial issues, many of them having to do with constitutional issues. Miscegenation Indorsed by the Republican Party, for example, was but one of seventeen different pamphlets published by the Democratic Central Executive Campaign Committee for the 1864 canvass.80 The original pamphlet that started the hoax, Miscegenation: The Theory of the Blending of the Races, was not republished by the Committee in 1864 or by the more racist Society for the Diffusion of Political Knowledge, whose list was influenced by the brilliant but fanatically racist Samuel F. B. Morse. It is only in recent times that so much emphasis has been placed on the uses of the miscegenation issue in the 1864 campaign. Back in 1970 the historian who discovered John H. Van Evrie, Forrest G. Wood, a pioneer in the exploration of race issues in the Civil War era, said of the miscegenation issue that it played “only a small and bizarre part.”81 George M. Fredrickson, likewise a pioneer in the study of the idea of race in the nineteenth century, characterized the “political impact” of the hoax as “negligible.”82 A return to the more balanced views of the earlier generation of writers on the subject may well be in order. Ironically, no one was more taken in by the hoax than the man who invented “white supremacy,” John H. Van Evrie. He wrote a direct answer to Miscegenation, and the contents of Van Evrie’s new pamphlet were, to say the least, of no help to the Democratic presidential candidate. Subgenation: The Theory of the Normal Relation of the Races: An Answer to Miscegenation appeared anonymously in

80

 See Hand-Book of the Democracy for 1863 & ’64 (n.p., n.d.).  Forrest G. Wood, Black Scare: The Racist Response to Emancipation and Reconstruction (Berkeley: University of California Press, 1970), 64, 74. 82  George M. Fredrickson, The Black Image in the White Mind (New York: Harper & Row, 1971), 171, 174. 81

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July 1864.83 The ideas were Van Evrie’s stock-in-trade. “The simple truth,” he said from the very start, “is – There is not slavery in the country; there are no slaves in the Southern States.”84 Proper subordination of the African race was the very “Basis of Democracy.”85 In fact, he concluded, “Subgenation is an indispensable prerequisite to the ushering in of the millennium.”86 The pamphlet was downright utopian. “[P]overty would be abolished. Almshouses would be as deserted as the Pyramid in Egypt, and prisons become as curious as the ruins of Palenque.” He advocated the reopening of the international slave trade to import “African negroes” to be put to work in the American West and in the tropical countries to the south. He characterized the recent execution of the international slave trader Nathaniel Gordon by the United States government as “foul . . . murder.” Strikingly, Subgenation impatiently dismissed many of the Democrats’ most important campaign issues. “They grow eloquent,” he sneered, “over free speech, free press, habeas corpus, and other side questions” – that from an editor whose newspaper had been mobbed, banned from the mails, and repeatedly threatened. If such statements belittling threats to First Amendment freedoms were not enough to turn the hair of fellow Democrats white overnight, Van Evrie ended by urging the “recognition of the Confederate States,” the adoption of the Confederate Constitution for the reunited country, and the nomination for president at the coming Chicago convention of Jefferson Davis as Democratic candidate.87 The miscegenation hoax thus came to its politically laughable end in the autumn of 1864. Surely, there is no better proof of the disorganized state of the Democrats’ campaign for the presidency in 1864 and of the want of coordination on any strategy, let alone race, than this politically absurd answer to Miscegenation.

83

 The pamphlet was published in New York City by John Bradburn. Sidney Kaplan said that Van Evrie issued “a refurbished edition of one of his old books.” See Kaplan’s “The Miscegenation Issue in the Election of 1864,” Journal of Negro History 34 (July 1949), 313. Harold Holzer asserts that Subgenation “was certainly designed to perpetuate the controversy.” See Holzer, The War for Public Opinion: Lincoln and the Power of the Press (New York: Simon & Schuster, 2014), 505. 84  [John H. Van Evrie,] Subgenation: The Theory of the Normal Relation of the Races: An Answer to Miscegenation (New York: John Bradburn, 1864), iv. The pamphlet was anonymous, but the Online Computer Library Center (or OCLC) consistently attributes it to John H. Van Evrie. 85  Ibid., 31, 32, 39. 86  Ibid., 56. 87  Ibid., 58–61.

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Jean Baker came closest to the truth when in bringing to light the racist images exploited by the Democrats she characterized popular culture as “[a]n artistic production free from upper-class correction.”88 Miscegenation did not come out from party headquarters in New York City. In fact, no one knew where it came from. What we see in the Democratic press on miscegenation lacked any coordination from the upper echelons of the Democratic party. The response from local Democrats was uncoordinated. Some local Democrats revelled in the “scandal” and others did not. One cannot depict Miscegenation as a campaign centerpiece. Its uses, in the end, came from the bottom of the party up – hence their uneven and sporadic quality. Any reader of the nineteenth-century party press will recognize immediately the problem of identifying focus in a presidential campaign. The junto who groomed the candidate in 1864 had their desires, but they did not communicate them through the candidate, who was supposed not to speak and did not. The platform was a buffet tossed together by competing factions of the party at the convention and in a hurry. Congressmen controlled the major flow of substantial documents like pamphlets. And that left the party press, who had no direct guidance. If the candidate was silent, what was the press to do? They had to go on talking, week after week, day in and day out. In 1864, in the absence of central guidance, the editors thought up all of the possibly damaging themes they could and put them to work in the handful of weekly issues of their papers remaining to be published before election day (and after the very late Democratic convention). The result was a welter of issues and no particular theme or emphasis. Let us take as an example, from the Pennsylvania Democratic press, the Lebanon Advertiser. What we find there is no particular party strategy but rather an attack on the opposition resembling the unleashing of a swarm of gnats. The Advertiser of September 7, 1864, ran a fictional detective story called “The Left-Handed Assassin” on the front page. The second, editorial page, featured thirty small snippets, most of them only a paragraph in length. Just below the masthead appeared an article on “more Drafts,” a subject ignored in the national platform. The longest article was “Poor Richard’s Reasons for Buying United States Securities,” which supported the purchase of government war bonds, the centerpiece of the 88

 Jean H. Baker, Affairs of Party: The Political Culture of Northern Democrats in the MidNineteenth Century, 213.

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Lincoln administration’s war funding. Two weeks later, the front page fell to political matter too – twenty-five snippets and a political poem. The important editorial page contained some thirty-seven different items. In the October 5 issue, the last before election day, the paper ran twentyseven different items on the first two pages.89 The pattern was similar in most of the provincial political press: Editors looked for “hits” on the opposition. Carefully calculated electoral strategies simply did not exist at this vital level of mass contact with voters.

The Leaders: Horatio Seymour By the middle of 1861, the talent pool from which the Democratic party could draw candidates had shrunk dangerously. Stephen A. Douglas died prematurely shortly after the war began, and many able Southerners had departed to the Confederacy. It is true that the last two Democratic presi­ dents were Northerners – one a New Englander even – but the selection process had included many a Southerner. The fact remained that the Democrats during the Civil War were short on leadership. Because of the preponderance of electoral votes in New York, Pennsylvania, and Ohio, those states stood as prime recruiting grounds for viable candidates, and in the end the Democrats looked closest at Horatio Seymour, the governor of New York, and George B. McClellan, a Pennsylvanian (by birth), though McClellan’s essential credential was his military and not his geographical background. Ohio, riven by Vallandigham’s recent disastrous gubernatorial candidacy, was not likely to produce a viable candidate.90 What is most significant about the frontrunners for the Democratic presidential nomination in 1864, Seymour and McClellan (see Figs. 3.5 and 3.6), is that they were both moderate Democrats. As an “out” party striving to get in, the Democrats may have had more extremists like Vallandigham in their ranks than stood to reason, but the fact of the matter was that the party was dominated, as was usually the case with American political parties, by moderates of only vague ideological identification like McClellan. As between Seymour and the general, the party in the end gave the nod to the man with the weakest partisan identification, 89

 The Lebanon Advertiser reprinted a stump speech by Emerson Ethridge, a long piece, on September 17. 90  James Huston in Calculating the Value of the Union: Slavery, Property Rights, and the Economic Origins of the Civil War (Chapel Hill: University of North Carolina Press, 2003), 25, describes the US as a nation driven by three extremely populous states, New York, Pennsylvania, and Ohio.

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Figure 3.5  Horatio Seymour. (Library of Congress Prints and Photographs Division, Washington, D.C.)

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a man with almost no political record and little partisan intensity on most of the salient issues of the party’s past – George B. McClellan. The more traditional Democrat, with a long and reliable record on party issues, was Horatio Seymour. He stands as proof that not all the political talent had left the Democratic party, though they had lost many able men in the party realignment of the 1850s, and still more, the Southerners, with secession in 1860–1861. Seymour’s most eye-catching quality for Democrats in 1864 was that he had won election in 1862 as governor of New York, in the most significant win for Democrats anywhere since Lincoln won the presidency in 1860. Further he, unlike McClellan, could boast of a solid record on one of the most important issues for Democrats during the war, civil liberties. He also enjoyed considerable ability to translate political issues into popular imagery on the stump. Seymour had but one great liability: He had addressed the mob in the New York City draft riots of July 1863 as “my friends.” He had dutifully come down from Albany to the City to calm the crowds, but because

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Figure 3.6  George B. McClellan. (Library of Congress Prints and Photographs Division, Washington, D.C.)

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he apparently began his speech to them with those words, Republicans depicted the speech as downright treasonous. In retrospect, it seems almost an injustice that that one incident should so militate against Seymour’s nomination when the successful nominee McClellan had exhibited a steady pattern of military mistakes and ill-judgment over months in the Peninsula campaign. Horatio Seymour was a sober politician, tailor-made for leadership of a loyal opposition. The crippling incident with the draft rioters was ironic, because he in fact did not go in for the demagogic or populist appeal, and his sovereign remedy for most political problems was patiently juridical. Unlike McClellan, Seymour was a career politician and was obviously identifiable as such.91 He stands out among other Democrats and 91

 This section of the book is based on reading twenty-one speeches and addresses given by Horatio Seymour, eighteen of them delivered during the Civil War, plus one before and two after. It is also based on these old biographical accounts: Stewart Mitchell, Horatio Seymour of New York (Cambridge, Mass.: Harvard University Press, 1938); and James D. McCabe, Jr., The Life and Public Services of Horatio Seymour: Together with a Complete and Authentic Life of Francis P. Blair, Jr. (New York: United States Publishing Company, 1868). His speeches are contained in Thomas M. Cook and Thomas W. Knox, eds., Public Record: Including Speeches, Messages, Proclamations, Official Correspondence, and Other Public Utterances of Horatio Seymour, from the Campaign of 1856 to the Present Time (New York: I. W. England, 1868) – hereafter cited as Public Record.

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Republicans during the Civil War for not standing out: that is, he anticipated the political style of the twentieth century by self-consciously spurning the political style of his own day, brinksmanship.92 During the war Seymour comported himself as the perfect spokesman for a loyal opposition. He supported the troops already in the field, criticized the administration stubbornly but politely, and showed respect for the President of the United States. “[A]bove all,” Seymour insisted early in the war, “we are to show obedience to constituted authorities.” He explained that the opposite attitude of disobedience (he was referring to defiance of the Fugitive Slave Law in the North and perhaps to John Brown’s raid) had brought on all the nation’s troubles.93 Early in 1864, by which time political arguments had grown shrill, Seymour still declared, “While it is a duty to state plainly my views, about public affairs, I shall do so in no spirit of controversy, or of disrespect for the opinions of those who differ from me.”94 In a political culture built on exaggerating fears and threats, Seymour poured oil on troubled waters. In Milwaukee on September 1, 1864, after McClellan’s nomination, Seymour, now in campaigning mode, said, “I would not say one unkind word of those who compose the Administration.”95 By contrast the Democratic platform of 1864 declared threateningly that “the direct interference of the military authorities of the United States in the recent elections in Kentucky, Maryland, Missouri, and Delaware was a shameful violation of the Constitution, and a repetition of such acts in the approaching election will be held as revolutionary, and resisted with all the means and power under our control.”96 On the hustings and in the press, that plank translated into the slogan “a free election or a fair fight” – about as pugnacious a slogan about domestic policy as ever marked an American election. Fearing violence at the polls, the Lincoln administration stationed soldiers under the notorious Benjamin F. Butler near New York City for the presidential election day in 1864. Yet, as governor, Seymour issued a “Proclamation Concerning the Election” that calmly stated, “There are no well-grounded fears 92

 Mark E. Neely, Jr., The Union Divided: Party Conflict in the Civil War North (Cambridge, Mass.: Harvard University Press, 2002), 159, 192. 93  Horatio Seymour, “Speech at a Democratic Ratification Meeting, Utica, New York, October 28, 1861,” in Thomas M. Cook and Thomas W. Knox, eds., Public Record, 33. 94  Horatio Seymour, “Second Annual Message,” January 5, 1864, ibid., 207. 95  Horatio Seymour, “Speech in Milwaukee, September 1, 1864,” ibid., 238. 96  Arthur M. Schlesinger, Jr., ed., History of American Presidential Elections, 1789–1968, 4 vols. (New York: Chelsea House, 1971), 2:1179.

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that the rights of the citizens of New York will be trampled upon at the polls.”97 “I do not deal in denunciation of the Republican party,” he insisted in October 1865. “They are as intelligent as ourselves in all respects.”98 Seymour declared in a speech in September 1863 that he had never “embarrassed the Administration, and I never will.”99 All of this is not to say that Seymour’s political message had no bite. He may not have been a systematic political thinker – few American politicians were – but he did think about the fundamental assumptions underlying his political ideas. He readily admitted that his political philosophy did not depend on the assumption of the inherent goodness of citizens. “The theory of local self-government,” he explained in 1856, “is not founded upon the idea that the people are necessarily virtuous and intelligent, but it attempts to distribute each particular power to those who have the greatest interest in its wise use and faithful exercise.”100 He contrasted that view with the “meddling theory of government” and pointed for contrast to New England, reminding his listeners of the region’s heritage of hanging Quakers and other examples of “fanaticism.”101 By 1862 that was a standard litany for Democrats outside New England.102 He expressed suspicion of the distant and celebrated the local. “The Democratic theory,” Seymour said, “takes away control from the central points and distributes it to the various localities that are most interested in its wise and honest exercise.” This theory of “local self-government,” obviously well suited to the defense of slavery before the war, led to particular emphasis later, during the war, on the idea that a man’s home was his castle.103 It was familiar doctrine in law in peacetime and yet well suited to the Civil War. Seymour offered a defense of “home and fireside rights” that became a steady theme in his political thought. Under its umbrella he would shield the citizen from arbitrary arrest and from

97

  Horatio Seymour, “Proclamation Concerning the Election, November 2, 1864,” in Thomas M. Cook and Thomas W. Knox, eds., Public Record, 262. 98  Horatio Seymour, “Speech at a Democratic Meeting in Buffalo, October 21, 1865,” ibid., 274. 99  Horatio Seymour, “Speech at the Democratic Convention, Albany, September 9, 1863,” ibid., 369. 100  Ibid., 4. 101  Ibid., 6. 102  See Mark E. Neely, Jr., The Boundaries of American Political Culture in the Civil War Era, 82–89. 103  Horatio Seymour, “Speech at Springfield, Massachusetts, July 4, 1856,” and “Speech at a Democratic Meeting at Syracuse, October 28, 1863,” in Thomas M. Cook and Thomas W. Knox, eds., Public Record, 3–4, 170.

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conscription, which Seymour depicted as tearing a man from his home.104 He objected to conscription on grounds of economic fairness and state rights, and, finally, he said, that conscription “trenches upon personal rights, opposed as it is to the genius of a free government.”105 Like other Democrats (whom we will see in Chapter 4, dealing with constitutional issues), for a brief period early in the war even he thought tolerance of military arrests of citizens necessary. “We must assume,” he said cautiously in October 1861, “that there are imperative reasons for these unusual measures, which in due time will be given to the American people. The exigencies of the day may require that they be withheld for the present.”106 He yielded little principle even in that statement, and what ground he gave could almost be said to have derived from respect for the presidency. That was as far as he ever went toward justifying the suspension of the writ of habeas corpus. Seymour’s focus on the sanctity of the home – his domestication of the abstract political idea of civil liberty – served him well when Federal soldiers arrested Clement L. Vallandigham in May 1863. Seymour was unable to attend the mass meeting in Albany protesting that arrest – which led to the protest from Erastus Corning and Lincoln’s famous answer to it – but the governor sent a letter endorsing the protest. The letter explained, [Such an arrest] is full of danger to our persons and our homes . . . Acting upon evidence of detailed informers, shrinking from the light of day, in the darkness of night, armed men violated the home of an American citizen, and furtively bore him away to a military trial . . . This transaction involved a series of offenses against our most sacred rights. It interfered with the freedom of speech; it violated our rights to be secure in our homes against unreasonable searches and seizures; it pronounced sentence without trial, save one which was a mockery.107

Seymour put little emphasis on what Vallandigham had said in his speech to provoke his arrest and dwelt instead on the furtive circumstance of the actual arrest at Vallandigham’s home. He was still celebrating “local, fireside, and personal rights” in 1866.108 104

 Horatio Seymour, “Speech at a Democratic Meeting in Buffalo, New York, October 21, 1865,” ibid., 270. 105  Horatio Seymour, “Speech at the Democratic State Convention, Albany, September 9, 1863,” ibid., 365. 106  Horatio Seymour, “Speech at a Democratic Ratification Meeting, Utica, New York, October 28, 1861,” ibid., 35. 107  Quoted in Stewart Mitchell, Horatio Seymour of New York, 293. 108  Horatio Seymour, “Speech at a Democratic National Union Meeting, Cooper Institute,” October 30, 1866, in Thomas M. Cook and Thomas W. Knox, eds., Public Record, 298.

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On slavery and race Seymour offered a contrast to the race-baiting of some Democrats. In the middle of the 1850s, he told a Democratic audience, “The people of the North are uniformly opposed to slavery, not from hostility to the South, but because it is repugnant to our sentiments.”109 The outbreak of war five years later, instead of freeing Seymour (and other Northern Democrats) from the burden of defending slavery on behalf of their Southern brethren in the party, only led him to be more circumspect in what he said on the subject. As early as the autumn of 1861, he made it a point to “deny that slavery is the cause of this war.” And he went on to say, in a passage somewhat difficult to understand but coming close to endorsing the Confederate enterprise, “If it is true that Slavery must be abolished to save this Union, then the people of the South should be allowed to withdraw themselves from that Government which cannot give them the protection guaranteed by its terms.” As in all the canny statements made by Democrats on the subject during the war, Seymour’s retained a conditional quality that made it stop short of disloyal sentiment. As a matter of fact, Seymour did not believe that emancipation was necessary to save the Union. In other ways he had insensitive views on the subject typical of Democrats at the time. Agitation over slavery was the “foremost” cause of the war, not slavery itself or Southern measures to protect it. Slavery, he said, “in fact was rapidly concentrating and limiting itself to that portion of our country engaged in particular pursuits” when the war began.110 These views were the farthest thing from the Republicans’ belief in the aggressive Slave Power. Seymour’s principal complaint about general emancipation was that it would “punish the loyal and not the disloyal, who would be beyond its reach.” He also predicted that emancipation would lead to a carnival of butchery and rapine, a prediction of servile insurrection which he later dropped when the prediction did not come true. He added that “the great problem we have to settle is not slavery, but the negro question,” but until Reconstruction he in fact said little directly about race.111 And that remains the most important point to be made about his racial views before Reconstruction: they were anything but progressive, but far from proclaiming them at every opportunity, he did not say much about them. Seymour’s criticism of emancipation after Lincoln’s Proclamation was routine for a Democrat. Emancipation, Democrats argued almost 109

 Horatio Seymour, “Speech at Springfield, Massachusetts, July 4, 1856,” ibid., 18.  Ibid. 111  Horatio Seymour, “Acceptance Speech to the Democratic State Convention, Albany, New York, September 10, 1862,” ibid., 54–55. 110

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unanimously, had illegitimately become the goal of the Northern war effort, and insistence on it as a condition of peace was counterproductive: it only increased Confederate determination to fight for independence. Radical policies on slavery divided the North while they united the South. Seymour was himself peculiarly interested in legal resolution of the emancipation question. In the autumn of 1863, in a key speech at the New York Democratic Convention, he said, “I am willing to leave the emancipation proclamation where he [Lincoln] has left it, to stand valid if the courts pronounce it valid, and to fall if invalid; and it must fall because it is invalid.”112 It was typical of Seymour but not of all Democrats to seek (or hide behind) legal resolution of controversial issues. It was like him as well to want to “leave the emancipation proclamation” where it stood. In truth, he was a passive man, for he would often prefer to await legal resolution. He did not agitate for immediate resolution. He was seldom confrontational.113 Seymour’s public record on slavery and race during the 1864 election year was minimal and bland. Any person familiar with the now rather boring speeches of Seymour knows that demagogic reference to a subject like miscegenation would stick out like a proverbial sore thumb. It would be impossible to foresee from the record of the New York governor seeking re-election in 1864, the white racist candidate for president who would emerge in the presidential election of 1868, when Seymour became the Democratic nominee. He obviously did not court the presidential nomination in 1864 by playing the racist card. In his long annual message of January 5, 1864, which dwelled mostly on national and not state issues, the word “slavery” appears only once, and the word “negro” never appears at all. He campaigned for McClellan later in the year in a similarly mild manner suitable to the loyal opposition. Other Democrats were sometimes vexed by Seymour’s bland legalism and avoidance of confrontation. His ingrained attitudes were only increased by the devastating criticism he suffered for his actions during the draft riots in 1863. Caution ever after was his byword. When the Lincoln administration briefly shut down the Democratic New York World in May 1864 because of an attempt by two newspaper reporters to panic the gold market by forging an alarming presidential proclamation calling for a new draft of men, the excited Manton Marble, the 112

 Horatio Seymour, “Speech to the Democratic State Convention, Albany, New York, September 9, 1863,” ibid., 369. 113  For a somewhat different view, based on the correspondence between President Lincoln and Governor Seymour over disputed quotas in the draft for New York, see James G. Randall, Lincoln the President: Midstream (New York: Dodd, Mead, 1953), Ch. XII.

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World’s editor and himself a moderate, thought that Governor Seymour should “interpose the arm and shield of the State of New York between Mr Lincoln & the oppressed within the circumference of the State.” The mild Seymour was not about to jump to such a confrontational conclusion. Instead, he opted for legalism. He sought a grand jury indictment in a New York court for the soldiers who had actually seized the newspaper offices. In public Marble praised Seymour’s restraint, but in private he fumed that the governor had not shown more decisive leadership.114 In every crisis Seymour opted for some future juridical solution – to the almost literally burning question of the constitutionality of the draft, to the Emancipation Proclamation, and to the suppression of the Democrats’ leading newspaper in 1864. But he left the legal arguments to the numerous and contentious Democratic members of the judiciary. He did not encumber his speeches with abstruse and legalistic arguments. He was not forever prating about Runnymede or invoking English history, which, as we shall see in Chapter 4, was the habit of the preening lawyers who first protested the suspension of the writ of habeas corpus by the Lincoln administration. Seymour was in fact legalistic in outlook, but he spoke in public more about matters that touched home. “Fireside rights” do not figure in the language of the Constitution of the United States. The Fourth Amendment, for example, speaks only of the “right of the people to be secure in their persons, houses, papers, and effects.” Like many Civil War Democrats, Seymour had become less enamored of the old divisive economic class rhetoric of Jacksonian days, but there were a few echoes yet. Referring to the $300 commutation provision still part of the draft laws in 1863, Seymour asked whether “there [was] no wrong done when they [federal authorities] entered a young man’s house and took from him the first three hundred dollars which he was ever able to earn? Which was laid up to be the foundation of a future fortune, the beginning of a future estate? . . . The Government laid its hand unequally and heavily upon the poorer classes . . . The rich man put his hand in his pocket and paid the money easily and carelessly.”115 Seymour did not ignore, as some Democrats did, financial issues during the Civil War and Reconstruction. He was a politician and not an economist, and he admitted that there were differing views on the “amount of indebtedness which would cause National bankruptcy, and with regard to the length 114

 Mark E. Neely, Jr., The Union Divided: Party Conflict in the Civil War North, 111–117.  Horatio Seymour, “Speech at a Democratic Meeting at Utica, October 29, 1863,” in Thomas M. Cook and Thomas W. Knox, eds., Public Record, 180.

115

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of time the war can go on without causing National ruin.” But there “is an amount,” he said, “[and] . . . there is a duration.”116 It was like him not to go to extremes and say that the nation faced immediate financial ruin. Taken all in all, Seymour presented an ideal loyal opposition style – patient, respectful of authority in war, but persistently critical. Aside from the controversy over the “my friends” speech, Civil War historians know him mostly for his nagging correspondence with the president, written in the wake of the draft riots in 1863, about New York’s quotas for conscription. And this is perhaps the best incident to explain the problems of a loyal opposition in Seymour’s case. We can rely on the generally even-handed historian James G. Randall for a basic understanding of the controversy, which arose after the New York City draft riots. Briefly put, as Randall described it, the New York governor sought a delay in the application of the draft to New York, pending a Supreme Court decision on its constitutionality. The president could brook no delay for such uncertain process: He had a war to fight and not enough men to do it with. Seymour argued quotas had been politically manipulated for New York so that notoriously Democratic districts – the City and Brooklyn – were responsible for supplying a disproportionate share as compared to Republican districts elsewhere in the state. Seymour wanted the president to delay the draft and let volunteering by the bounty system work. As we have seen already, Seymour proved correct in that bounties ultimately drove mobilization. But he ignored the crucial fact that the threat of a draft drove the bounty drives. Although Randall did not mention it, there was a partisan “elephant in the room,” undiscussed by the governor or the president, namely the Republican fear that only conscription would randomly distribute the burden of military service and that volunteering put Republicans on the battlefield and left Democrats home to vote. In the end the president relented a little, by adjusting quotas unequally calculated (though not apparently by partisan design), the draft proceeded, and New York supplied the crucial men. But the incident makes clear how much better it was in general to leave the politicians with presidential ambitions out of the essential work of raising men for the war. Otherwise, Seymour proved loyal but not helpful, Lincoln recognized the governor’s ultimate loyalty but was wary, and such was the nature of a functioning loyal opposition in a great war in the United States.117 116

 Horatio Seymour, “Second Annual Message, January 5, 1864,” ibid., 207.  Obviously, this discussion is heavily indebted to James G. Randall, Lincoln the President: Midstream, Ch. XII, although some emphasis and my conclusions differ from Randall’s.

117

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In general Seymour’s bland legalism fit perfectly the style of loyal opposition in American wars. Seymour was loyal but not cheering. His leadership of the greatest state in the Union was loyal but annoyingly insistent about perceived rights and partisan slights. That was the ultimate meaning of the controversy between the governor and the president, for all its reams of paper in reports, letters, investigations, and committee deliberations. It should not be overlooked that Seymour’s political style was more than a style of the moment. It looked forward to times in the twentieth century when party identification among the voters was weaker and winning over opposition voters more viable. It looked forward to times when the style of politics was not brinksmanship. It looked forward to times when it was a liability to allege political conspiracy against the republic itself. In other words, his style anticipated the modern style of partisanship in a mature two-party system that took the loyalty of the opposition for granted in peace or war.

The Leaders: George B. McClellan It is simply impossible to write a parallel description and appraisal of the political thought of Seymour’s rival for the Democratic nomination in 1864, General George B. McClellan. There is very little to go on. McClellan made only two brief and patriotic public statements of any length at ceremonies in 1864 previous to his nomination. His positions on emancipation and the conduct of the war, for the first time briefly stated in a private letter he handed to President Lincoln in the summer of 1862, did not see public print until the publication of McClellan’s report on the Peninsular campaign in 1864, where the letter was reprinted. Unlike Seymour, McClellan was anything but a career politician. He in fact despised politicians. In a candid and humorous moment in the summer of 1864, McClellan wrote his friend and political manager S. L. M. Barlow: I am afraid that I scared a red headed politician out of several weeks growth two days since – he came to me about “the meeting that had been arranged with seven” etc – I shut him up so promptly that I don’t think any one else will have the impertinence to renew the subject. He left somewhat hurriedly, & I am satisfied decidedly influenced with the idea that there had been a mistake somewhere, & that I was not yet . . . in the power of the politicians. I wish you would impress our friend with the idea that I don’t can not be[?] friends . . . In the mean time my advice to you is to follow my example – clear out of town, let the politicians go where they belong viz: to the old gentleman with cloven feet, & take a good rest.118 118

 George B. McClellan to S. L. M. Barlow, June 17, 1864, Papers of S. L. M. Barlow, Huntington Library, San Marino, California.

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Just over a week after telling Barlow about the red-headed politician, McClellan, obviously feeling the unpleasant pressure of politicians circling around his possible candidacy, wrote the editor of the New York World to inform him that he was contemplating renting a cottage at Lake George. It would be “at a little village named Bolton – where I can pass the summer & fall without fear of being disturbed by politicians, etc.”119 McClellan fancied he could run for president and spend the summer and autumn of the election season quietly by a lake without getting involved with politicians. McClellan was no politician at all. He was a general and a railroad executive. He was not a good speaker or wordsmith, and the New York junto which engineered his candidacy in 1864 did not want him to speak. He was a military hero. He stood for nothing in politics. He was a hero to be cheered and followed, not a politician who took positions to be analyzed and explained. McClellan paid the price of amateurism in politics: he squandered one of his assets as a possible candidate – his image of being above politics – obeying bad and panicky advice from his circle of political advisors and friends. Toward the end of the 1863 campaign in Pennsylvania, a Philadelphia newspaper alleged that McClellan had said that if he were in Pennsylvania, he would vote for the Republican and not for George W. Woodward. McClellan was persuaded to issue a statement the day before the election setting the record straight and saying he would vote for Woodward were he there. He carefully qualified the statement to say why, mainly that Woodward also believed “that the maintenance of our national unity is of vital necessity.” But the Republicans had long since done their work on Woodward’s image, and McClellan was thereafter easily tarred with the extremist views imputed to Woodward on the rough campaign trail in Pennsylvania. McClellan was naïve enough to believe that his endorsement would not damage his cordial relations with the Republican candidate, the incumbent governor Andrew G. Curtin, but it did.120 In truth, of course, McClellan despised extremists and especially peace extremists. In a private letter to Barlow in the summer of

119

 George B. McClellan to Manton Marble, June 25, 1864, Papers of Manton Marble, Library of Congress, microfilm edition, reel 3. 120  McClellan to Charles J. Biddle, October 12, 1864, in Stephen W. Sears, ed., The Civil War Papers of George B. McClellan: Selected Correspondence, 1860–1865, 558–559; see also McClellan’s letter to Henry M. Naglee, September 12, 1864, ibid., 602.

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1864, he said, “I wish they had left Vallandigham down south when they had him there!”121 That McClellan should turn out to be the only hero the Democrats could scrape up speaks volumes for their limited talent pool. Other than his controversial career as a general in the war, McClellan had little to offer for campaign myth-making. He was not born poor or on the frontier. He was the son of a doctor from Philadelphia. He never uttered quotable remarks. That quality led to the assessment, common even among Democrats, that McClellan was “more of a soldier than a scholar.”122 His military career was that of a modern soldier: He was a manager of men more than a literal leader of them. The title of his book-length report on his Civil War campaigns issued in 1864 and his major attempt to set the record straight on his military career, carried the colorless title Organization of the Army of the Potomac, and of Its Campaigns in Virginia and Maryland, under the Command of Maj. Gen. George B. McClellan. Somehow he and his advisors were tone deaf and let “Organization” appear well before “Campaigns” in the title to this work crucial to constructing an heroic reputation for the presidential canvass. Republicans proved so adept at discrediting McClellan’s claims to heroism that they completely ignored the time-tested critique of generals as presidential nominees – that such men on horseback threatened dictatorship. On the contrary, Republicans depicted McClellan as timid, and the Democrats criticized the civilian president as a dictator.123 Republicans did not depict McClellan on horseback but lolling in a chair, on the deck of a gunboat, safely watching battles on the shore through telescopes. Such a reversal was unique in presidential campaign history. The longest plank in the Democratic platform dealt with constitutional issues in general and with civil liberties and military arrests in particular. On that score, McClellan’s record was not the equal of Seymour’s. The general had had a hand in the notorious arrest of Maryland legislators in September 1861, and many people knew it. McClellan himself never denied it or apologized for it, and when pressured on the point in 1864 by Democrats fearful of backlash from Maryland and other border states, 121

 George B. McClellan to S. L. M. Barlow, Papers of S. L. M. Barlow, Huntington Library, San Marino, California. Lincoln had banished Vallandigham to the Confederacy after his conviction, but when Vallandigham eventually returned to the United States, the authorities did nothing. 122  See, for example, the Lebanon Advertiser, September 14, 1864. 123  See Mark E. Neely, Jr., and Harold Holzer, The Union Image: Popular Prints of the Civil War North (Chapel Hill: University of North Carolina Press, 2000), 146.

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McClellan – in one of the two finest moments of his political career – stood firm: As to the Maryland Legislature affair I do not think that I initiated the matter – It came I think from Seward. I doubt very much whether there is any letter of mine in the War Dept on the subject [McClellan’s handlers were afraid there was]. The facts of the case are these: At the time of the arrest the Army at Washington was still weak & not in condition to take the field & fight a general battle. Intelligence reached us, I think through Seward, that the Secesh members of the Maryland Legislature intended to meet at Frederick (an illegal act under the Constitution of MD), secretly pass a Secession Ordinance, secretly send it to [Confederate General] Jo[seph E.] Johnston, who was at once to move into Maryland & raise a general disturbance. This information seemed at the time to be thoroughly reliable. The danger was great – in a military point of view we were not prepared to resist an invasion of Maryland – the only chance was to nip the whole affair in the bud – which was promptly done, as a matter necessary for the safety of the military position of Washington & the troops there. I look upon this as an entirely different matter from the arbitrary arrests in loyal states, & have no apology to make.124

McClellan’s memory was faulty, and he knew it might be (hence the underlined “think”). He had ordered General Nathaniel Banks to oversee the arrests, and the order must indeed have been the property of the War Department.125 The only serious opposition to McClellan’s nomination at the Democratic convention in August 1864 came from delegations upset over his record on civil liberties. The incident also reveals McClellan’s basic political innocence. The arrests in Maryland came long after the decision in ex parte Merryman declaring the president’s suspension of the writ of habeas corpus unconstitutional and putting Democrats on alert on the issue of civil liberties, but, even with such a Democratic red flag raised, the general had not been careful about the issue; he even had trouble remembering what happened. On other political issues McClellan simply had no ideas and no public record – in many cases, no opinions expressed in private, either, that survive in his papers. Yet his ideas on race and slavery are crucial to understanding the Democrats’ presidential campaign in 1864 and need to be teased out of the surviving largely apolitical record.

124

 George B. McClellan to Samuel S. Cox, February 12, 1864, in Stephen W. Sears, ed., The Civil War Papers of George B. McClellan, 1860–1865, 565. 125  Secretary of War Stanton did not release the letter for the political campaign, despite intense hostility to McClellan, but the general’s positive role in forwarding the arrests seems to have been common knowledge.

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McClellan’s few private expressions on the race question were conventional for a white American and Democrat. What we know comes from a very small documentary record stemming from private correspondence written in a brief period in late 1861. The most famous of these statements has been most damaging. Writing to S. L. M. Barlow on November 8, 1861, the general was explaining the reasons for his military inaction. He was organizing and training an army for a decisive offensive battle and he wanted to be sure he was ready and not like the army at Bull Run. He needed no more distractions. “Help me to dodge the nigger,” he wrote, “we want nothing to do with him. I am fighting to preserve the integrity of the Union & the power of the Govt – on no other issue.” McClellan went on, in a less often quoted part of the passage: “To gain that end we cannot afford to raise up the negro question – it must be incidental & subsidiary. The Presdt is perfectly honest & is really sound on the nigger question.”126 McClellan always wanted to dodge the issue, which among his male friends and associates he called “the nigger question.” He did not want to take a lead on it. He did not want to crusade for white supremacy, a term he apparently did not use. He did not want to bait the race question. About two weeks later, in a letter of uncertain date, McClellan wrote his wife about the capture of Port Royal, South Carolina, by Federal forces: The negroes came flocking to the river with their bundles in their hands ready to take passage! There is something inexpressibly mournful to me in that – those poor helpless ignorant beings – with the wide world & its uncertainties before them – the poor serf with his little bundle ready to launch his boat on the wide ocean of life he knows so little of. When I think of some of the features of slavery I cannot help shuddering. Just think for one moment & try to realize that at the will of some brutal master you & I might be separated forever! It is horrible, & when the day of adjustment comes I will, if successful, throw my sword into the scale to force an improvement in the condition of those poor blacks. I will never be an abolitionist, but I do think that some of the rights of humanity might be secured to the negroes – there should be no power to separate families & the right of marriage ought to be secured to them.127

The letter is notable for McClellan’s use of the more respectful term “Negroes” in writing to his wife (instead of the rough slang he used when swaggering among soldiers and politicians and men in general). It also reveals that as of 1861, he had barely reached the level of thinking about 126

  Stephen W. Sears, ed., The Civil War Papers of George B. McClellan: Selected Correspondence, 1860–1865, 128. 127  Ibid., 132.

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the condition of African-Americans in slavery that a reader of Uncle Tom’s Cabin might have reached nine years earlier. That is, he showed concern about securing the rights that come of marriage, at least, to the slaves. He was, we might say, ten years behind the times on the slavery question. McClellan as of 1861 was saying nothing, even in private, about freedom, only about amelioration within slavery. Harriet Beecher Stowe had pointed to the abuses as proof that emancipation was needed. McClellan had a long way to go. The issuance of the preliminary Emancipation Proclamation put McClellan in a huff and he wrote to his wife on September 25, 1862: It is very doubtful whether I shall remain in the service after the rebels have left this vicinity. The Presdt’s late Proclamation, the continuation of [Secretary of War] Stanton & [General] Halleck in office render it almost impossible for me to retain my commission & self respect at the same time. I cannot make up my mind to fight for such an accursed doctrine as that of a servile insurrection – it is too infamous. Stanton is as great a villain as ever & Halleck as great a fool – he has no brains whatever!128

After a little reflection, McClellan remained upset by the new policy and on the next day, after writing his wife, he more deliberately sounded out the views of his friend William H. Aspinwall on the subject: I am very anxious to know how you and men like you regard the recent Proclamation of the Presdt inaugurating servile war, emancipating the slaves, & at one stroke of the pen changing our free institutions into a despotism – for such I regard as the natural effect of the last proclamation suspending Habeas Corpus throughout the land.129

Now McClellan was upset not only by what he regarded as an appeal for slave insurrection but also by the seeming pattern of tyranny embodied in the two presidential proclamations of September 22 and September 24, the latter suspending the writ of habeas corpus. Several political ideas were moving McClellan along his track to political consciousness, but none was as intense as he claimed in the week immediately after the Emancipation Proclamation. Far from refusing to serve under these changed circumstances, he retained his command until Lincoln relieved him over a month later – and he retained his military commission for over a year longer. 128

 Ibid., 481.  Ibid., 482. For the most negative interpretation of this correspondence see Richard Slotkin, The Long Road to Antietam: How the Civil War Became a Revolution (New York: W. W. Norton, 2012), 372–373. He uses the term “white supremacy.”

129

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Any discussion of George B. McClellan’s political ideas would be very short indeed unless it also relied on examining the political views of the people who surrounded and admired him. Establishing the political world of McClellan and his circle will reveal that the common modern assumptions about his political views cannot be accurate. Modern interpretations are easily described. David Brion Davis, for example, speaks of “the almost proslavery Democrat George B. McClellan.”130 As for race, James Oakes sees McClellan as the head of “a campaign of unparalleled racial demagoguery” in 1864.131 I read 332 political letters written to McClellan from July 27, 1864, through October 11, 1864, election day for the early voting states of Ohio and Pennsylvania, whose outcome most authorities at the time saw as decisive for the November presidential vote. Only 30 of the letters, fewer than 10 percent in what was purportedly a race-obsessed campaign, dealt with race or slavery. I was expecting the reverse proportion, say 90 percent expressing concern about race and slavery. But, in fact, 9 out of 10 of the politically engaged people who wrote the Democratic presidential hopeful in the election summer managed to do so without mentioning race or slavery. The letters written to McClellan that did deal with race and slavery were notable for their moderation. Of particular note was a letter from an anonymous woman conveyed to the general by her uncle, Joseph S. Foy, of Woods Hole, Massachusetts. The nameless woman had drafted a letter to be sent to the New York World in which she urged the Democratic party to avail themselves “of women’s influence, taking a lesson from the abolitionists” to “use the moral element.” The party should “show that they respect the virtue of women by demanding laws for its protection whether white or black.” In particular, she wanted to have the treatment of slave women by soldiers brought into the light of day. As for slavery, she saw it as the result of “moral degradation,” by which she meant – she was a Democrat, after all – that the slaves were morally degraded and needed help. The heart of her advice was a policy of “amelioration” of slave conditions. Congress should bring about six reforms: 1. solemnization of slave marriages, 2. prohibition of the sale of slave children away from their parents, 3. payment for a portion of slave 130

 David Brion Davis, Review of James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865, in the New York Review of Books, lx, June 6, 2013, p. 61. 131  James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (New York: W. W. Norton, 2013), 476.

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labor, 4. the “right to exchange a cruel master at value,” 5. instruction in religion, reading, and writing, and 6. the right of a slave “to work himself free.” Such reforms, she argued, would prepare the slaves for freedom and avoid the “sudden revolution” wrought by “political agitation.” Ideally, there should be “freedom for all through individual effort and self development.” She “would have” the Democrats “use sentiment as well as hard argument in carrying on the campaign.”132 With but one exception, no one urged McClellan to adopt anything like the Van Evrie platform. Even the advice of Philadelphia’s extremely conservative and pro-Southern Democrats fell a little short of such ideas. The Philadelphians forwarded to the general a letter written by Nahum Capen of Massachusetts. The assumptions underlying the platform to be adopted at Chicago, Capen thought, were, first, that “In civil war, waged by men of the same race, subjugation is impossible.” On the other hand, the “war of races” was “based upon a law of nature.” “An inferior race,” he insisted, “cannot perpetuate itself when placed in superior society without subordinating aid – nor can a superior race preserve and defend a nation, if it be false to its own superiority.” Yet even the sententious Capen wanted to keep the platform short and confined to the slogan, “The Union as it was and the Constitution as it is.”133 He said nothing of a plank on “white supremacy,” race, or slavery. The exception to the pattern was none other than John H. Van Evrie himself. After McClellan gained the nomination and rejected the peace platform in his acceptance letter, Van Evrie wrote to the candidate. He boldly informed the nominee that he was a peace Democrat and pressed on McClellan his book on slavery. He wanted to convince McClellan that the issue should not be war or peace but “the overthrow of Abolitionism [versus] National destruction.” Despite the general’s rejection of the peace plank, all might still be well, the doctor said, if McClellan pledged himself to destroy abolition and to restore “the Union as it was on the white basis.”134 Van Evrie’s was the most significant letter in the lot. He had to introduce himself to McClellan out of the blue. He had to call the candidate’s attention to his book. He could not introduce himself by saying that he had heard from someone that McClellan liked his book or wanted to read it. They did not inhabit the same political universe. 132

 Joseph S. Foy to George B. McClellan, July 28, 1864, Papers of George B. McClellan, Library of Congress, microfilm edition, reel 50. 133  Nahum Capen to various Philadelphians, August 6, 1864, ibid., reel 50. 134  John H. Van Evrie to George B. McClellan, September 14, 1864, ibid., reel 51.

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By contrast with the fanatic Van Evrie, others wrote to McClellan on the assumption that the days of slavery were numbered, and one in particular seemed to know the general much better. A man named William, who described himself as McClellan’s “old friend & former playmate,” appealed to the candidate’s conscience. William admitted that “on the one hand[,] a President has no right to allow his personal feelings of philanthropy to interfere with his sworn duty.” “On the other hand,” William thought that McClellan might “have need to remember that the Black man was placed here in the Providence of God certainly not to be abused.” Some of the slogans commonly expressed in the popular press disgusted Willliam. “This is a white man’s government. A nigger has no business to interfere with a white man[’]s interests,” he cited as examples. “These sentiments (& often they are expressed not in slang but in even classical English) may do for Captain Rynders [a notoriously corrupt New York City Democratic functionary] on the one hand, & for the Polished aristocratical infidel on the other. But you are a Christian man.”135 The New York Democratic banker Albert Gallatin made a less moralistic appeal. He advised a statesmanlike and overt acknowledgment of slavery’s inevitable downfall. He made this suggestion for the nominee’s letter of acceptance: As to slavery, I do not understand how you can refrain from alluding to it. The war was bred by it. If we and our descendants are to live in peace, there must be emancipation sooner or later. It may be gradual, and it may be compensated. But it must come . . . It ought to come, full and complete, by the 4th July, 1876, the centennial anniversary of independence.136

Right up to the eve of the critical state elections in October, Democrats who thought the best of McClellan wanted him to issue a statement making it clear that he was not pro-slavery. Thomas M. Clark, the Episcopal bishop of Rhode Island, thought the candidate should indicate “[t]hat you would not favor the return of any persons to slavery, who have been made free by the process of war: that you would be glad to see the institution of slavery, surely & gradually remedied [?] by the legislation of the States, which alone have Constitutional control of the matter.” Clark felt that he knew where McClellan really stood on the issue: “That you are in sympathy with those who desire the gradual removal [?] of slavery, in the only mode by which it can constitutionally & safely be abolished.”137 135

 William to George B. McClellan, August 31, 1864, ibid., reel 50.  James Gallatin to George B. McClellan, September 6, 1864, ibid., reel 50. 137  Thomas M. Clark to George B. McClellan, October 10, 1864, ibid., reel 52. 136

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Some racial vituperation came from anonymous, incoherent, or deranged correspondents.138 Most of the letters to the candidate had nothing to do with race at all and dealt with the question of peace or simply cheered McClellan on. The crucial point is this: there is no letter in the McClellan Papers urging the general to emphasize race and slavery in the campaign. That suited the general fine: He wanted to avoid the issue. The same pattern holds true for the letters received late in the campaign, after the fatal voting day in Ohio and Pennsylvania. Only one letter then dealt with slavery or race at any length. Robert J. Wright, of Philadelphia, warned McClellan, “The North & West will never consent to the restoration of the Union as it was and to the Perpetuation of Slavery. Their whole church & conscience is against it.”139 As for McClellan’s immediate political circle, they do not, despite some allegations to the contrary, appear to have been enthusiasts of “white supremacy” either. The New York World editor Manton Marble, for example, had in common with McClellan a Whiggish background and generally genteel corresponding friends. One regular correspondent of Marble’s, who signed her name always as “Chateau 64,” wrote the editor in March of 1864: By the way – Where was your conscience when you wrote “President Lincoln & the working man” – You know I am no more partial to Old Abe & his policy than you are, but . . . I think many of your readers will be of my opinion even some who are not Republicans. Mr Lincoln’s remarks seem to me to be very just & proper in this instance. [H]e only advocates the lawful rights of the colored man, which he has enjoyed for a number of years in this state & I believe in some others & “Miscegenation” is not, and has not progressed or been looked upon more favourably here on account of his having these privileges – Only a year ago, Downing moved from Providence because his children were not allowed to go to school with the whites, but were obliged to attend the colored Schools if they went at all – do you see we can let the black man vote, accumulate a little property of his own, be educated at the public expense, protect him from being hung by a mob & even feel a human sympathy for him, without giving him our daughters in marriage or asking him to our tables – & I think we have proved that allowing him these privileges does not necessarily lead to “Miscegenation.”

138

 See John Daugherty to George B. McClellan, September 21, 1864, ibid., reel 52; and Anonymous to George B. McClellan, September 14, 1864, ibid., reel 51. Three other letters of note were A. Bartholomew to George B. McClellan, September 11, 1864, ibid., reel 51; John A. Waifter to George B. McClellan, August 22, 1864, ibid., reel 50; and Joshua Weaver to George B. McClellan, September 7, 1864, ibid., reel 51. 139  Robert J. Wright to George B. McClellan, October 13, 1864, ibid., reel 52.

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So do give every one their due even if it be the Devil or the President & keep the odor of truth on your side in politics though you are a Democrat.140

Manton Marble and the rest of the men in New York whom I call the junto engineered the nomination of a candidate with weak partisan credentials and Whig origins, and they oversaw a presidential campaign notable for its moderation. Aside from the pamphlets sent from Washington, D.C., by Democratic committees connected with Congress, there was no central direction, in fact. And no one controlled the key political medium, the local and provincial press. Newspapers made wild allegations on many subjects ranging from race to financial ruin. There was no central focus on race – no central focus at all. The nearer election day approached, the more the newspapers degenerated into a myriad – easily thirty or more – little “hits,” single paragraphs sniping at the opposite party. Sustained treatment of platform issues mostly disappeared. It would perhaps be even more accurate to point not to Democratic moderation in 1864 but to the want of any firm ideological commitments. McClellan’s very candidacy undermined the main issues in the platform – peace and opposition to arbitrary arrest. Neither race nor slavery nor the Emancipation Proclamation was mentioned in the official platform and therefore simply could not have been the central theme of the Democratic presidential campaign of 1864. The candidate himself had little influence on the campaigning done for him, and in fact McClellan’s greatest political moment came the day the election was over. His principal manager, S. L. M. Barlow, wrote, “The people have decided in favor of the policy of Mr Lincoln – Fortunately that verdict is so nearly unanimous that no question can arise to disturb the North, as to the validity of the election.”141 McClellan replied immediately with firm assurance that he got the point: “For my country’s sake I deplore the result – but the people have decided with their eyes wide open.”142 A little over two weeks later, McClellan wrote Marble to say, “I accept the verdict, & calmly abide the issue – be it good 140

 Chateau 64 to Manton Marble, [March 1864,] Papers of Manton Marble, Library of Congress, microfilm edition, in undated letters at the end of the March file, reel 3. On Marble’s moderate and religious background see George McJimsey, Genteel Partisan: Manton Marble, 1834–1917 (Ames: Iowa State University Press, 1971), 15–25. 141  S. L. M. Barlow to George B. McClellan, November 9, 1864, Papers of George B. McClellan, Library of Congress, microfilm edition, reel 52. 142  George B. McClellan to S. L. M. Barlow, November 10, 1864, in Stephen W. Sears, ed., The Civil War Papers of George B. McClellan: Selected Correspondence, 1860–1865, 618.

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or bad.”143 There were to be no unsettling allegations of electoral fraud or demands for recounts or investigations. The Democrats, when they got behind McClellan, proved that they were a loyal opposition. Ultimately McClellan, despite Whig origins, may have been responsible for the very survival of the Democratic party. At least that is the way one Democrat, Brinton Coxe, saw it. In a political post-mortem letter, he told the defeated candidate: As to the party . . . you have probably saved it from absolute destruction. Had for instance the Democratic party under another nominee been beaten in every state as badly as it was beaten a year ago in Ohio, God only knows how it could have recovered from it. Thanks to your letter and your course of action, the party was remoralized at a critical moment.144

143

 George B. McClellan to Manton Marble, November 28, 1864, Manton Marble Papers, Library of Congress, microfilm edition, reel 5. 144   Brinton Coxe to George B. McClellan, November 17, 1864, Papers of George B. McClellan, Library of Congress, microfilm edition, reel 52. For a revisionist view pointing out McClellan’s Whiggish background, see Ethan S. Rafuse, McClellan’s War: The Failure of Moderation in the Struggle for Union (Bloomington: Indiana University Press, 2005), Chapter 1.

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chapter 4 The Elusive Constitutionalism of the Democratic Party

In the era of the Civil War, constitutional history was still a branch of political history. Just as journalism in the nineteenth century was a branch of politics, so constitutional interpretation was a branch of politics as well.1 Most constitutional history, especially during the Civil War, was not made in the United States Supreme Court or in any other part of the judicial branch. It was made mostly in Congress, by the president, or even on the stump by the political parties. Of course the Dred Scott decision of 1857 was the exception, but before it, the most important developments otherwise came outside the courtroom. A moment’s reflection will make that obvious. What was the Supreme Court case on the Alien and Sedition Acts of the age of Jefferson and Adams? What was the Supreme Court decision on Nullification, the greatest pre-Civil War constitutional crisis? Thus any re-evaluation of the political history of the Civil War, any consideration of the history of President Lincoln and the loyal opposition, must of necessity deal with constitutional developments and constitutional controversy. Constitutional history therefore should be an integral part of any political history in the period. Yet it is most often treated separately, as an entirely different species of history-writing. The next two chapters of this political history will be about the Constitution, one chapter for the constitutionalism of each political party. In the chapter dealing with the Republicans, the president’s constitutional views naturally stand out because the Constitution makes him commander-in-chief for four long 1

 Michael Schudson, The Good Citizen: A History of American Civil Life (New York: Free Press, 1998), 120–122.

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years, and as it always turns out, the president’s constitutional views matter a great deal to the history of the country during a war. That last statement itself betrays, of course, the powerful and broadly configurative role of the Constitution in the war.2 There were some things so clearly established by the Constitution that they went uncontested by political controversy. It was clear that the president was the commanderin-chief and that his term would last four years. No one, Democrat or Republican, quarreled with that, and there were no specious and frivolous attempts at impeachment during the Civil War. Congress’s role in actual war-making would be limited, and even more circumscribed for the minority party in Congress. The Democrats accepted that unhappy truth, even though they found it extremely frustrating.3 To be sure, for a time during the Civil War the Democrats controlled the judicial branch substantially, and they attempted to take advantage of that when they could, but the opportunities were not great because the appeal process moved slowly and according to precise rules.4 In fact, we could say that the power of the Constitution was so great that the political parties could not shape history much in four years of war. And that fundamental truth gives us a clue to the history of constitutional conflict in the war that follows: There was an abundance of constitutional argument between the parties in the conflict, and, overall, it amounted to very little. Most was simply not to be taken seriously.

A Racist Constitution? Like the history of the Civil War Democrats in general, the history of the Democrats’ wartime constitutional ideas has been greatly neglected. True, there reigns a strong sense that the party was wed to constitutionalism, but the specific content of the constitutional doctrines remains hazy. In the last general history of the party in the Civil War era, published in 1977, Joel H. Silbey left historians with the following ideas. He asserted that constitutionalism was important to the Democratic party, both wings of which shared “a commitment to certain deeply ingrained traditional 2

 On the “configurative role” see Arthur Bestor, “The American Civil War as a Constitutional Crisis,” American Historical Review 69 (January 1964), 327–352. 3  I have argued this point at greater length in Mark E. Neely, Jr., The Union Divided: Party Conflict in the Civil War North (Cambridge, Mass.: Harvard University Press, 2002), 196–197. 4  On this important point see the definitive article – Jonathan W. White, “The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War,” Journal of the Civil War Era 3(June 2013), 211–238.

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Democratic beliefs about limited government, the Constitution, and conservative social policy.” The party’s different factions “agreed” on certain “elements of conservative constitutionalism . . . which distinguished all Democrats from all Republicans.” Although he did not single out specific articles and sections of the Constitution, he insisted that the Democrats embraced a “fundamental limited constitutionalism” or “primitive constitutionalism.”5 In fact, the course of the Democratic party on the Constitution in the Civil War was erratic and irresponsible. They abandoned their antebellum theory of the Constitution. As soon as the war began and the Lincoln administration took an aggressive position on curtailing ordinary civil liberties in the North, the Democrats had more reason than ever to cling doggedly to the document. From their point of view their very existence as a political party in opposition depended on it. They clung to the Constitution briefly, but soon floundered, and by 1864 were supporting a patently unconstitutional program to save the nation. Whatever conservative constitutionalism is, it was surely not that. There was nothing special, consistent, or particularly Democratic in the stance of the Democrats on the Constitution during the Civil War. They could be counted on to make loud noises about the Constitution, but a noisy invocation of the Constitution in wartime had been the standard of behavior for any opposition party in the United States from the birth of the republic. The actual constitutionality of an American war made little difference in the fiercely “constitutional” attitudinizing of the opposition. Constitutional posturing is the archetypal and predictable response of opposition parties in the United States during wartime. The Democrats of the Civil War era would have hated the comparison, but their behavior resembled the Federalist party’s during the War of 1812. The Federalists in New England eventually poured their unyielding opposition to the War of 1812, a war duly declared by Congress, into a proposal for seven constitutional amendments. These were formulated at the notorious Hartford Convention of 1814 but died just before becoming ultimatums when Andrew Jackson gained a great military victory in New Orleans in January 1815 and when news of the peace forged in Ghent finally arrived. Federalists in Congress had voted against the declaration of war and had voted against almost all war measures thereafter, including 5

 Joel H. Silbey, A Respectable Minority: The Democratic Party in the Civil War Era, 1860– 1868 (New York: W. W. Norton, 1977), 106, 117–118, 192, 245.

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appropriations for troops in the field. Their reputation for disloyalty after the conclusion of the war quickly doomed the party to extinction. All American politicians understood the political lesson of not ever voting against supplies for the troops in wartime, but the impulse for the opposition party to make loud constitutional objections during war and to make exaggerated gestures about fixing the Constitution persisted. The Whigs did it in the Mexican–American War of 1846–1848 (see the next chapter), and the Democrats would do it again in the Civil War. The Democrats during the Civil War did not in the end come up with a series of proposed constitutional amendments to fix the nation’s problems. As it turned out, it was the Republican administration that embraced constitutional amendment as a way to end slavery. But the Democrats did pour their opposition energy into frequent complaints about the administration’s infractions of the Constitution and claimed as the Democratic standard, “the Constitution as it is.” Constitutional posturing was their main reliance when seeking principles on which to oppose the administration in the war. In lieu of a Federalist-style amendment fever, the Democrats developed a mania for a “convention of the states” to end the war. In essence, it meant amending the Constitution under another slogan. The antebellum Democratic party was unusual in that it was committed in national party platforms to a specific theory of the Constitution. That theory should not be confused with the theory of the Constitution devised in the same period by the Democratic Chief Justice of the United States Supreme Court, Roger B. Taney. In the words of constitutional historian Brian R. Dirck, Taney’s famous Dred Scott decision had as its “premise that the Constitution was rooted in white supremacy” (though Taney did not use that term in the decision). Taney’s opinion in the case stemmed from that vision and was not really a product of a style of interpretation of the document, strict, broad, or otherwise. Dirck singled out the key texts for Taney and what the chief justice said about them. The fugitive slave clause (Article IV, section 2), and the slave trade clause (Article II, section 9), Taney said, “point[ed] directly and specifically to the negro race as a separate class of persons,” and, Taney continued, neither African-Americans “nor their descendants were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessing of liberty, or any of the personal rights so carefully provided for the citizen.”6 6

 Brian R. Dirck, Lincoln and the Constitution (Carbondale: University of Southern Illinois Press, 2012), 37.

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In fact, slaves were referred to in the Constitution only as persons (not as property), and the word “white” did not appear in the document.7 Taney, in other words, had a vision of the Constitution and not a particular manner of interpreting its clauses. His was a Constitution suited to a white supremacist republic. The chief justice had no sooner voiced his racist vision of the Constitution than it was taken up by John H. Van Evrie and the extremist white supremacists. Van Evrie, who was otherwise not given to constitutionalism, embraced the Dred Scott decision as next to holy writ. His newspaper, the Day-Book, ranked Taney’s opinion “second only to the Declaration of Independence.” Van Evrie, Horton & Co., the publishers of the DayBook, offered an edition of the Dred Scott opinion for sale at the beginning of the Civil War. Unlike most Democrats, Van Evrie was interested mostly in race and not especially in the Constitution. He was ultrademocratic and did not feel comfortable celebrating the authority of the unelected branch of the government for settling great political questions. As a brash, outspoken, assertive, abrasive, and proud racist, who based his recommendations for public policy on what he deemed racial science, he felt no need to hide his prejudices behind the Constitution. Still, Van Evrie recognized a powerful ally when he saw one.8 The Supreme Court decision freed racists from the incubus of the assertion in the Declaration of Independence that all men are created equal. In the Dred Scott decision Taney had gone back to the era of the founding of the country to document a pervasive racism in American society at the time.9 It was clear, the Day-Book observed, that “this is purely and entirely a republic of white men.” “Citizenship . . . not only does not belong to the negro but cannot belong to the negro. The decision of the Supreme Court,” the paper concluded, “is a fact, not merely of history, of the common law or a fact embodying the living spirit of American society, but it is a fact of the ‘higher law,’ external as time and indestructible as creation.”10 (The reference to “higher law” was meant to be ironic; the term was anathema to Democrats, who associated it with 7

  Don E. Fehrenbacher, Slavery, Law, & Politics: The Dred Scott Case in Historical Perspective (New York: Oxford University Press, 1981), esp. 3–15. 8  Thus to George M. Fredrickson Van Evrie was an example of herrenvolk democracy. See Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817–1914 (New York: Harper & Row, 1971), 90–96. He calls Van Evrie “perhaps the first professional racist in American history” on p. 92. 9  The history was in fact spurious, as Don E. Fehrenbacher proved in The Dred Scott Case: Its Significance in American Law and Politics, esp. 185–199. 10  Day-Book, March 25 and 28, 1857.

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abolitionism and with William H. Seward). By the summer of 1859 Van Evrie had produced his own edition of the decision, with his own introduction and an appendix written by Samuel A. Cartwright, a Southern racist writer, entitled “Natural History of the Prognathous Race of Mankind.” It sold for twenty-five cents.11 Invocations of the authority of the Dred Scott decision appeared off and on again for two years in the Day-Book, but Van Evrie remained immune to the allure of constitutionalism. For him racism was always a “higher law” than the Constitution. He took a perverse lesson from the famous Lincoln-Douglas debates of 1858. Ironically, he found something of value in Lincoln’s approach to the Constitution and the Supreme Court. “The Dred Scott opinion is not right because the Supreme Court says so, but because it is founded in justice,” Van Evrie said, adopting Lincoln’s standard of moral judgment and refusing to bow to judicial sovereignty.12 Van Evrie rejoiced when Oregon became part of the Union in 1859 with a constitution that prohibited African-Americans from settling in the state, saying that the new state entered the Union “with a constitution that thoroughly recognizes the Dred Scott decision as the law of the land. Her banner proudly waves with the motto that ‘white men shall rule America,’ and in this respect we feel really proud of such an accession to the confederacy.”13 The Democratic party was not yet the party of white supremacy during the Civil War and did not see the Constitution the way the white supremacist John H. Van Evrie did. We can see that clearly in a speech Senator Reverdy Johnson of Maryland gave in Congress early in 1865. Along with George Ticknor Curtis, Johnson reigned as the Democratic party’s sage voice on constitutional questions. When Congress memorialized Taney, who had recently died, Johnson gave a speech in which he singled out Van Evrie’s favorite line from the Dred Scott opinion, which stated that African-Americans “had no rights which the white man was bound to respect.” Johnson denounced it as an “inhuman sentiment,” and maintained that Taney had mentioned it not to “justify” but to “deplore” the sentiment. “He gave it as an historical fact” only, the senator insisted.14 11

 See advertisement in the Day-Book, August 4, 1859; see also March 1 and August 26, 1861. 12  Ibid., July 16, 1858. Judicial sovereignty is Don E. Fehrenbacher’s term in Slavery, Law & Politics: The Dred Scott Case in Historical Perspective (New York: Oxford University Press, 1981), 5, 308. 13  Day-Book, February 4, 1859. 14  Cleveland Plain Dealer, January 6, 1865.

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The Civil War Democratic party did not march obediently behind Van Evrie’s and Taney’s banner of white supremacy. Taney was never able to foist his pro-Southern vision of the Constitution off on the Democratic party as a whole. It was notoriously incompatible with Stephen A. Douglas’s doctrine of popular sovereignty, for example, and the Democratic party preferred, if we can judge by its national party platforms of the period, a more flexible theory. Theirs was a theory of the Constitution, not an embrace of this or that convenient clause, nor a “strict construction” of the document, but there was no racial myth bound up with it. It was enough for most Democrats to believe that their constitutional ideas came from Thomas Jefferson and James Madison. The party’s 1852 platform, forged before the Democrats’ fateful split in 1860, stated: “That the Democratic party will faithfully abide by and uphold, the principles laid down in the Kentucky and Virginia resolutions of 1798, and in the report of Mr. Madison to the Virginia Legislature in 1799, that it adopts those principles as constituting one of the main foundations of its political creed, and is resolved to carry them out in their obvious meaning and import.” The same resolve in exactly the same words appeared again in the party’s national platform in 1856.15 In other words the party professed commitment to the famous compact theory of the Constitution based on the idea of state sovereignty. Commonly, the creed was summed up in stump speeches and local party resolutions as fidelity to the United States Constitution as interpreted in the Kentucky and Virginia resolutions of ’98 and ’99. Thus after a Democratic rally in Pittsburgh on September 17, 1862, the anniversary of the drafting of the Constitution of 1787, the local party newspaper pronounced the “meeting . . . a great success” and said it would “have a telling effect with the people who love the men of ’98.”16 By 1860 reiteration of that understanding of the Constitution had become routine. The 1860 platform (of the Northern wing of the party) declared their “affirmance of the resolutions unanimously adopted and declared as a platform of principles by the Democratic Convention at Cincinnati, in the year 1856” – which included the reference to the Constitution as interpreted by the principles of ’98 and ’99.17 15

 Arthur M. Schlesinger, ed., History of American Presidential Elections, 1789–1968, 4 vols. (New York: Chelsea House, 1971), 2:953, 1037. 16  Mark E. Neely, Jr., Lincoln and the Triumph of the Union: Constitutional Conflict in the American Civil War (Chapel Hill: University of North Carolina Press, 2011), 8. 17  Arthur M. Schlesinger, Jr., History of American Presidential Elections, 1789–1968, 2: 1123.

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But ­secession and the war forced Democrats to abandon their theory of the Constitution, state rights and compact theory being widely blamed for the great error of secession. In 1864 the Cincinnati platform disappeared from most Democratic resolutions and platforms, and with it the ritual affirmation of fealty to the Kentucky and Virginia resolutions of 1798–1799. The platform on which George B. McClellan ran for president saw the Democrats pledged to “adhere with unswerving fidelity to the Union under the Constitution as the only solid foundation of our strength, security, and happiness as a people, and as a framework of government equally conducive to the welfare and prosperity of all the States, both Northern and Southern.”18 There was nothing of the old principles of ’98 and ’99, Jeffersonian state rights theory, in that bland declaration. After the war, with the return of white Southerners to political calculations, there were new reasons to embrace state rights, especially in controlling the suffrage. But the Cincinnati platform and the principles of 1798 and 1799 were gone for good. The party’s 1868 platform declared that there was no “warrant” in the Constitution for congressional interference with “the privilege and trust of suffrage,” which had been “granted, regulated, and controlled exclusively by the political power of each State respectively.”19 The platform did not affirm the interpretation of the Constitution according to the principles of ’98 and ’99. Quietly, the Democrats had let the theoretical and canonical affirmations of state sovereignty slip away, never to return. During the war they surrendered their central constitutional principle and floundered from careful dissent in 1862 into desperate pseudo-constitutional posturing by 1864. Not every Democrat gave up on those old principles during the Civil War. As late as the middle of 1863 the Democratic New York World was willing to fire off one more volley on behalf of the principles. The Republican New York Tribune commented on a Democratic address saying it contained a “remarkable passage” asserting “the doctrine of the separate sovereignty of the several states.” “How an assertion of the doctrine of state sovereignty,” the World objected, “can be regarded as ‘remarkable,’ when it has been the uniform creed of the Democratic party, and in fact the corner-stone of the Democratic faith, from the celebrated resolutions of ’98 down to the present day, we do not well understand.”20 18

 Ibid., 1179.  Ibid., 1269. 20  New York World, May 1, 1863. 19

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But most Democrats found it difficult to hold on to compact theory and to denounce secession too, and most Democrats denounced secession (and therefore had to muffle the principles of ’98 and ’99). The McKean County Democrat of Pennsylvania, for example, quoted the resolutions made by the local Democratic County Convention of September 1861, including the first one: “[T]he claim of any State or number of States of a right to relinquish at will their obligations and allegiance to the Union has no warrant in the Constitution – is at war with its letter and spirit – is incompatible with good Government, and the preservation of the public faith . . . and whenever this pretension has been advanced by secessionists North or South, it has been resisted and defeated by the Democracy, who have ever maintained, as they still do, that secession is revolution.”21 None of twenty-three Democratic newspapers surveyed about secession expressed belief in the legality or propriety of secession (besides the Day-Book).22 By the end of the war only extremists clung to the principles of ’98. Thus in 1866 the Old Guard, C. Chauncey Burr’s reactionary monthly (published by Van Evrie, Horton & Co.), insisted that “The resolutions of ’98 [are] still the creed of the Democracy.” Burr admitted that they were commonly “denounced as the ‘parents of the heresy of secession,’” and yet, he wrote, “it is historical truth that these resolutions were the creed of the Democracy from 1798 until 1861.”23 Habeas Corpus

The Democrats enjoyed one brief hour of glory on the Constitution early in the war when President Lincoln suspended the writ of habeas corpus. The Federalists’ constitutional objections to James Madison’s war had been genuinely obstructionist, including attempts to withhold New England militias from national service, and Madison and the Republicans never suspended the writ of habeas corpus during the War of 1812, despite the foreign invasion of the United States. What the Democrats did in early 1862 was, even in the face of presidential suspension, not obstructionist. It was just short of inspiring. President Lincoln’s suspension of the writ of habeas corpus was rapid and forceful, coming as early as April 27, 1861, less than three weeks after 21

 McKean County Democrat, September 28, 1861.  At least one newspaper stated that it ought at least to be open to debate; see the Bellefonte Democratic Watchman, April 22, 1864. 23  The Old Guard 4 (September 1866), 570. 22

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the fall of Fort Sumter. Roger B. Taney, still the Chief Justice of the United States Supreme Court, acted rapidly and forcefully too, embracing the little known and little used power of individual justices of the Supreme Court to issue writs of habeas corpus. Seizing on that power (after the arrest of a Maryland civilian named John Merryman by military authorities on May 27), and in no way speaking for the whole Supreme Court, Taney defied the president. As of that date, no one had yet been killed in battles between the two armies, but the president and chief justice were definitely at war. Taney was a Democrat, but a pro-Southern extremist, and his constitutional confrontation with the President of the United States has obscured the actual quality of the initial Democratic response to Lincoln’s early suspensions of the writ of habeas corpus. Taney’s was not a Democrat’s response, exactly; it was the response of a Southern sympathizer. Later there appeared a vast pamphlet literature of protest against Lincoln’s suspension, but it is wrong to think that the Northern Democrats rushed in to follow Taney’s leadership. Close attention to chronology reveals that no habeas corpus pamphlet protesting the president’s power was produced above the border states before 1862. The president received support from Maryland Senator Reverdy Johnson, in a very long newspaper article in Washington’s National Intelligencer. That newspaper had lost much of the prestige and circulation it enjoyed in an earlier era in politics, it must be admitted, and Johnson’s argument did not reach as far and persist as long as a pamphlet might. Only one protest appeared anywhere in 1861 – S. S. Nicholas’s A Review of the Argument of President Lincoln and Attorney General Bates, in Favor of Presidential Power to Suspend the Privilege of the Writ of Habeas Corpus – and that was published in Louisville, Kentucky. Nicholas, unlike the Northern pamphleteers above the border states, had an established record as a defender of slavery. His pamphlet appeared sometime after July 1861 and showed a fawning deference to Taney’s opinion in Ex parte Merryman: It would be an act no less of presumption than supererogation, for any man to attempt to aid what Chief Justice Taney has said in the Merriman case, to prove that the whole power of suspension is with Congress, exclusively with Congress. His opinion will be cherished, not merely as an enduring monument of official fidelity, but as a proud evidence of octogenarian ability. It will be cherished by the profession as a high, finished specimen of luminous, convincing judicial disquisition.24

24

 S. S. Nicholas, A Review of the Argument of President Lincoln and Attorney General Bates, in Favor of Presidential Power to Suspend the Privilege of the Writ of Habeas Corpus (Louisville, Kentucky: Bradley & Gilbert, 1861), 14.

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To Nicholas, Taney’s argument was “unanswerable.”25 Only in 1862 did pamphlet literature denouncing the suspension begin to appear in the North.26 The earliest publication date for such a Northern pamphlet protesting the suspension of the writ of habeas corpus is February 1862, nine months after the first suspension. Democratic politicians and lawyers did not need nine months – from Lincoln’s action in April 1861 until February of the next year – to come up with objections to the suspension by the president. Democratic politicians did not need months and months to organize indignation meetings or to draft resolutions in protest at their loss of civil liberties – had they wanted to. Reflect on what happened two years later. In 1863, when Clement L. Vallandigham was arrested by military authorities on May 5, tried by a military commission, and banished to the Confederacy by May 19, petitions of protest circulated within days, and mass rallies were organized in Newark, New Jersey, on May 30, and in Philadelphia on June 1.27 Resolutions of protest adopted at a rally in Albany, New York, held on the 16th, less than two weeks after the arrest, proved so troubling that the president felt compelled to answer them in a long public letter – the Corning letter, previously referred to in this book.28 In 1861 Democratic politicians did none of those things; they gave the president some time and, in the case of Senator Johnson, even some limited support.

25

 Ibid. Nicholas wrote an answer to Binney’s later criticism of Nicholas, written in a second pamphlet by Binney. See S. S. Nicholas, Habeas Corpus: A Response to Mr. Binney (Louisville, Kentucky: Bradley & Gilbert, 1862); and Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution: Second Part (Philadelphia: C. Sherman and Son, 1862). 26  Anna Ella Carroll’s pamphlet, which included an argument for the president’s power to suspend, appeared in Washington, D.C., in 1861. See The War Powers of the General Government, reprinted in the essential reference, Douglas W. Lind, ed., Lincoln’s Suspension of Habeas Corpus: The Pamphlet Literature and Congressional Debate, 2 vols. (Buffalo, New York: William S. Hein, 2012), vol. i, Doc. No. 22. Reverdy Johnson’s defense appeared as “The Power to Suspend the Writ of Habeas Corpus” in extended newspaper columns in the National Intelligencer on June 22, 1861. It does not appear to have been published as a pamphlet. It is also in Lind, vol. i, Doc. No. 17. Harvard Professor Joel Parker gave the president very limited support in a pamphlet entitled Habeas Corpus and Martial Law: A Review of the Opinion of Chief Justice Taney, Doc. Nos. 17 and 16, ibid. I have dealt with Parker in Neely, Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (Chapel Hill: University of North Carolina Press, 2011), 66–71. 27  See E. B. Long, The Civil War Day-by-Day: An Almanac, 1861–1865, orig. pub. 1971 (New York: DaCapo, n.d.), 357, 360, and 361. 28  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 9 vols., (Newark, New Jersey: Rutgers University Press, 1953–1955), 6:260–261n.

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Democratic lawyers in Philadelphia did produce a flood of pamphlets on the habeas corpus question early in 1862, but that was all. Democrats did not pour into the streets in noisy protest. The pamphleteers did not initiate public meetings and mass rallies. Instead, they ran to their libraries and law offices and worked into the night drafting long, labored, and lecturing legal arguments against the presidential power to suspend the writ of habeas corpus. What the Philadelphia lawyers wrote deserves a closer look than usually bestowed on it. It was less impulsive and less partisan than one might expect. The most important point is this: They were not really taking aim at the president, for the most part. They were alarmed by his intellectual defender, the learned and pettifogging Horace Binney, an octogenarian Philadelphia lawyer of considerable prestige. They offered dense, mostly historical arguments more suitable to a courtroom than to a public square. They did act promptly, like legal minutemen bursting on the scene to respond immediately – not to Lincoln’s suspensions of 1861 or to take inspiration from Taney’s Merryman opinion of mid-1861, but to Horace Binney. Binney completed writing his 50-page apology, entitled The Privilege of the Writ of Habeas Corpus under the Constitution, just before Christmas 1861, and the answers to it began to appear in print very early in 1862. Binney’s strained apologetics made it seem as though there was to be a fundamental shift in balance from liberty to presidential authority – that the Republicans, in other words, imagined something permanent in restraining civil liberties. Binney’s went much further than the very circumscribed defenses offered by Harvard law professor Joel Parker and Senator Reverdy Johnson in the immediate wake of Taney’s challenge to the president. Parker offered a defense based on the idea that suspending the writ was an extension of the authority of a military encampment for security and was geographically limited to areas around the periphery of a military camp. Johnson defended some very limited executive and military authority based only on local and immediate military circumstance or a temporary emergency. Binney’s defense of the suspension seemed more sweeping somehow, and therefore it was at that point and only at that point that the lawyer-pamphleteers in Philadelphia leapt into action. Their criticism was aimed at alarming evidence of expansion of presidential power in Horace Binney’s labored defense; they did not aim at the incumbent Republican president. These pamphlets dealt in genuine matters of constitutional scruple. The pamphleteers apparently did not really need leadership from the Democratic party in this. True, Taney had acted first and many months

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earlier, but they had not followed him immediately. Taney’s decision did not figure in a big way in their arguments, at least not as much as in the case of Kentucky’s S. S. Nicholas. What those two Southerners, Taney and Nicholas, no doubt believed would be a rallying cry fell rather flat. Binney, on the other hand, stirred up a storm rarely equaled in the previous history of constitutional controversy in the United States. Proof that the famous outpouring of pamphlet literature in Philadelphia was not a Democratic party conspiracy lies in the obscurity of many of the authors. There were some prominent Democrats among them, but many of the authors are not readily identified as Democrats. These men appeared in history only as the pamphleteers of ’62 and not as the partisans of ’63 and ’64. Who, after all, has heard of Charles Heber Gross or Tatlow Jackson or Isaac Myers? George Wharton and Edward Ingersoll were Democrats well known in Philadelphia and would maintain a high partisan profile for the rest of the war. Many of the other authors simply disappeared from notice. Binney made a fat target. He had avoided obvious partisanship in his pamphlet, but his argument was highly implausible and his language dense and difficult. Historian James G. Randall summarized the argument this way. Binney maintained that the clause in the Constitution governing habeas corpus was not a limit on the powers of Congress but a grant of power to the branch of government charged with determining when invasion or rebellion had occurred, and that was the president and not Congress. The Constitution itself authorized the suspension and not the legislature.29 Binney’s view of the habeas corpus clause hardly survived his pronouncement of it. There had never previously been any problem with interpreting the meaning of the Constitution on that point. In Article I, which defines the powers of Congress, section 9 states: “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.” Binney has no followers now who believe that that is a clause empowering the president to suspend the writ. He had no devoted constitutional disciples then, either. One among the many Philadelphia pamphleteers, uncertainly identified as William Kennedy, came to the defense of the government’s suspension in a pamphlet entitled The Privilege of the Writ of Habeas Corpus under the Constitution of the United States. In What It Consists. How It Is Allowed. How It Is Suspended. It Is the Regulation 29

 James G. Randall, Constitutional Problems under Lincoln, orig. pub. 1926 (Urbana: University of Illinois Press, 1964), 125–127.

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of the Law; Not the Authorization of an Exercise of Legislative Power. Although Kennedy more or less embraced Binney’s view, he did not mention Binney except in an appendix at the end of the pamphlet. And he added that the power to suspend was essentially the voice of the “People” speaking through the Constitution.30 Binney’s argument had no populist element about it. Even to labor to describe Binney’s argument is to lend to it a plausibility it really did not have. He laid claim to interpretation by “constitutional and natural” rules and not by “merely legal and artificial” rules, but in truth the argument is difficult to follow.31 Though a Whig in his youth and a critic therefore of Jacksonian presidential power, he now professed no fears of the presidency, arguing that in Great Britain Parliament guarded the power to suspend from the king, but there was no reason to fear the American president’s having the power, for his office was weak. He later retracted some of the original pamphlet’s meaning himself, and it is safe to say that it is a rare commentator on the United States Constitution who located the power to suspend exclusively in the executive.32 In short, Binney’s argument richly deserved criticism, and the Philadelphia lawyers supplied that in full. At least four critical pamphlets appeared as early as February 1862. John T. Montgomery’s, the first, had the makings of a promising constitutional argument.33 Montgomery focused on John Marshall’s opinion in Ex parte Bollman and Swartwout that suspension was a congressional 30

 [William Kennedy,] The Privilege of the Writ of Habeas Corpus under the Constitution of the United States, in Douglas W. Lind, ed., Lincoln’s Suspension of Habeas Corpus: The Pamphlet Literature and Congressional Debate, vol. i, Doc. No. 37, pp. 6, 10. 31  Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution, in Frank Freidel, ed., Union Pamphlets of the Civil War, 1861–1865, 2 vols. (Cambridge, Mass.: Harvard University Press, 1967), 1:202. See Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War, 71–77, 111, 149. 32  Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War, 93–95. 33  Edward Ingersoll said in his own pamphlet published in April that Montgomery was “the first in Philadelphia to take the field in defence of Habeas Corpus.” See Ingersoll, Personal Liberty and Martial Law: A Review of Some Pamphlets of the Day, in Frank Freidel, Union Pamphlets of the Civil War, 1861–1865, 1:253. Sidney George Fisher acquired a copy of Ingersoll’s pamphlet by the end of April 1862. See Jonathan W. White, ed., A Philadelphia Perspective: The Civil War Diary of Sidney George Fisher (New York: Fordham University Press, 2007), 19. On authorship of the pamphlets, some of them like Montgomery’s published anonymously, see Sidney George Fisher, “The Suspension of Habeas Corpus in the War of the Rebellion,” Political Science Quarterly, 3 (September 1888), 486. [John T. Montgomery,] The Writ of Habeas Corpus and Mr. Binney (Philadelphia: John Campbell, 1862), is dated “February 1862” in the text.

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power. The great justice had expressed his view at length in a trial stemming from the Aaron Burr case of 1807. As Montgomery pointed out, Binney had dismissed this precedent on these grounds: “whatever be its meaning, [it] was not used in a case which brought up the question.” In other words, Binney said Marshall’s opinion was obiter dictum. And so it was, admitted Montgomery, but Binney had laid claim at the beginning of his argument to favor “the Constitutional and natural” over “the merely legal and artificial.” Montgomery pointed out that Binney’s rejection of Marshall’s precedent was “an objection which would have been more applicable to the legal than the natural view.”34 So much for Binney’s claim to “natural” interpretation, which any modern reader of his dense pamphlet must agree was truly absurd. Montgomery insisted that Marshall made clear his opinion that only the legislature could suspend the writ of habeas corpus, and Marshall had done so in the course of careful consideration, whether the “very point in controversy” was before the court at the moment or not. In the end, Montgomery warned that the “pamphlet of Mr. Binney . . . may well be regarded as more dangerous and revolutionary than that of any enemy the country has been called upon to encounter.”35 He did not apply such language to the president.36 It seems hardly possible that Isaac Myers’s pamphlet on Presidential Power over Personal Liberty could have been in print as early as February 12, 1862, the date the work carries. It is ninety-four pages long and bears the marks of considerable research on the constitutional convention of 1787. The author stressed the importance of history and took his argument in the direction of blood birthright rather than universal eighteenth-century liberty. For many of these writers liberty was quietly beginning to become Anglo-Saxon property by genealogical growth. On the first page of his pamphlet, Myers declared, “It is not then, astonishing, to one who has read with attention the early history of those whose blood is ours, to see them performing that great act in English history – and, we might 34

 John T. Montgomery, The Writ of Habeas Corpus and Mr. Binney (Philadelphia: John Campbell, 1862), 15. Incidentally, John Campbell published several of the pamphlets, and that is a point in favor of thinking of them as Democratic in origin, for Campbell was an ardent Democrat himself, and many of the things he published came from Democrats. 35  Ibid., 35. 36  But his language grew sharper later. Douglas W. Lind has noted that in the second edition of Montgomery’s work, the Democratic pamphleteer’s language took a bitter turn, and, denouncing the argument from necessity which he said the president made, he described it as “the shibboleth of the descendants of the Prince of Darkness.” See Lind’s introduction to Doc. No. 38 in Lincoln’s Suspension of Habeas Corpus: The Pamphlet Literature and Congressional Debate, 1213.

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justly say, in that of the world – at Runnymede, wresting from a weak but arbitrary King those liberties to which they were entitled, and of which their descendants should be proud.”37 In dealing with more recent partisan history, he did not overlook the inconvenient truth that Andrew Jackson, an eventual founder of the Democratic party, had suspended the writ of habeas corpus. The general’s bold and accountable action taken in New Orleans in 1815, Myers argued, was preferable to “encroachment” on liberty by subtle arguments for the legality of such executive suspension – an attack obviously aimed more at Binney than at Lincoln. The third February pamphlet was anonymous, and the author has never been identified. This Reply to Horace Binney’s Pamphlet on the Habeas Corpus, dated in the text February 22, 1862, briefly commended Taney, but the argument dealt entirely with Binney, not with President Lincoln or Attorney General Edward Bates, who offered the more or less official defense of Lincoln’s suspension. The author also addressed something more than legal abstractions when he examined the idea that suspension was a military necessity. He argued that railroads and telegraph lines had significantly lessened the difficulties of assembling Congress in an emergency, and that therefore there was little reason to worry about a rebellion going so far forward as to succeed before Congress could take action to suspend the writ and quell the rebellion. Even if Congress were not in session, the president could convene them, and as for a worse emergency, the pamphleteer said this: “For an emergency which will not admit of the delay consequent on such a step – an emergency which can hardly be conceived – for such a case of overwhelming necessity, the Constitution has made no provision; and as the present is a constitutional argument, the case of such an emergency forms no part of it. ‘Sufficient unto the day is the evil thereof.’”38 Only one of the pamphlets published in February was the product of a prominent Democrat, that of George M. Wharton. His Remarks on Mr. Binney’s Treatise on the Writ of Habeas Corpus assumed that the question would be decided finally by the United States Supreme Court, an outcome that never occurred. Wharton proceeded with his own legal argument, thinking it important to make the case against presidential suspension because the “prevalent sense of the community” on the question might be “more important” in the end than the court’s decision. 37

 [Isaac Myers,] Presidential Power over Personal Liberty: A Review of Horace Binney’s Essay on the Writ of Habeas Corpus (Philadelphia: n.p., 1862), 5. 38  A Reply to Horace Binney’s Pamphlet on the Habeas Corpus (Philadelphia: n.p., 1862), 31.

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He particularly criticized Binney’s microscopic focus on the brief clause in the Constitution that governed suspension – at the expense of the entire Bill of Rights.39 By the time John C. Bullitt got his argument ready to be set in type – March 10, 1862 – there were already so many pamphlets available on Horace Binney and habeas corpus that it gave him pause: “In common with many other persons, as it now appears, I commenced the preparation of a review of his [Binney’s] argument. The danger of producing a surfeit of Habeas Corpus pamphlets would have deterred me from adding one more to that number but for the fact that, upon examining these publications, it appeared they all reviewed the matter from more or less varying stand-points, and mine differed somewhat from all of them.”40 Bullitt, after admitting that Binney did not rest his argument on necessity but on the Constitution, wrestled as other pamphleteers did, with the problem of “military necessity.” “It will not be denied,” he said, that there were occasions when action was needed and Congress was not in session. When a president acts in such a moment, “his acts should receive kind and generous consideration.” Bullitt specifically mentioned along these lines Lincoln’s expansion of the army without congressional authorization in the days immediately following the fall of Fort Sumter. “But,” he added, “because an act was done of necessity before Congress could be called together, that does not prove that it should be continued after Congress has been for weeks or months in session; nor does it engraft any new principle on the Constitution.” The latter was the truly worrisome point for the pamphleteers of early ’62, and it was raised by Binney’s strained apologetics and not by Lincoln’s emergency action. Binney was just the sort of systematic legal writer who could “engraft . . . new principles” on the Constitution, and that danger of fundamental doctrinal innovation rather than the president’s emergency action is what really worried the Philadelphia lawyers. Tatlow Jackson, author of Authorities Cited Antagonistic to Horace Binney’s Conclusions on the Writ of Habeas Corpus, made a point similar to the one Myers had made about Andrew Jackson. Tatlow Jackson wanted “the Federal Government [to] do all it can to secure success in the present awful crisis – but for the sake of what is infinitely more dear than Union – liberty – let all acts emanate from the proper department.” 39

 [George M. Wharton,] Remarks on Mr. Binney’s Treatise on the Writ of Habeas Corpus (Philadelphia: n.p., 1862). 40  John C. Bullitt, A Review of Mr. Binney’s Pamphlet on “The Privilege of the Writ of Habeas Corpus under the Constitution” (Philadelphia: John Campbell, 1862), 3.

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He left a loophole: “when imperious necessity commands, let the department usurping do as did General Jackson at New Orleans – take the responsibility; and hope that, in the attainment of the end, the people will pardon or justify the means. But leave intact the Constitution as our fathers construed and adopted it.”41 Once again, the real enemy was Binney’s argument and not Lincoln’s action. With the work of Edward Ingersoll, a bitter Democrat who was no stranger to partisan polemics, we can see the critique raised by the drab lawyers evolving toward vivid political attack. In Personal Liberty and Martial Law: A Review of Some Pamphlets of the Day, Ingersoll articulated a useful political myth. He addressed not only Binney’s argument but those of the attorney general Edward Bates in defense of the president, and of Joel Parker, of the Harvard Law School, in defense of martial law.42 Ingersoll did know more than most lawyers about habeas corpus, having written a book about it in 1849, but he did not rely on technical argument alone for his appeal, as the following excerpt from the pamphlet reveals: Who is so disloyal to the government as he who at this time doubts its practi­ cability; who either from pride of opinion, lust of power, or more ignoble fear, desires that the American guides and landmarks should be set aside, and some others taken in their stead; who questions the integrity or soundness of the great maxims of American free government. Conservatism is our only chance of safety, conservatism of our own American institutions; such as our forefathers gave, such as our people have lived under and understood. Liberty of speech, liberty of the press, liberty of the person. All wrong perhaps, but the only guides that we know, the only lights that our people recognize, the only landmarks they understand. They are essential to the safe conduct of the government in this hour of peril, as they are to the happiness of the people; and it is as great administrative madness in the emergency, to attempt to throw them aside, as it is indicative of popular madness, to be willing to relinquish them . . . The only possible chance for the federal government in this our day of calamity, is, as it ought to be, to stand by our American principles.43

Thus Ingersoll initiated the process of merging all the great civil liberties of the Constitution and the Bill of Rights into “American principles” 41

 Tatlow Jackson, Authorities Cited Antagonistic to Horace Binney’s Conclusions on the Writ of Habeas Corpus (Philadelphia: John Campbell, 1862), 1, 3, 5, 6–7. 42  The Philadelphia printing of Joel Parker’s Habeas Corpus and Martial Law: A Review of the Opinion of Chief Justice Taney, in the Case of Merryman, 2nd edn. (Philadelphia: John Campbell, 1862) did not appear until after April. See Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War, 67. 43  Edward Ingersoll, Personal Liberty and Martial Law: A Review of Some Pamphlets of the Day, in Frank Freidel, Union Pamphlets of the Civil War, 1861–1865, 1:253, 256.

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threatened by the suspension of the writ of habeas corpus alone. And he initiated the partisan inflection of the constitutional debate. Before the Ingersolls of the Democratic party politicized the debate over habeas corpus, the Philadelphia pamphleteers, some of them literally anonymous and others politically obscure, met constitutional challenge with challenging constitutional research. Whatever might be said about the rush to judgment by these lawyers, it should be kept in mind that, after all, they did not rush to judge the president in the Union’s hour of peril. They took aim at Horace Binney, whom we might think of as an unsolicited pro bono advocate of the president’s cause. There is no indication whatever in 150 years of constitutional commentary and history that Horace Binney’s argument was correct or even plausible.44 It did not have effect lasting beyond the war, even beyond 1863. The literature written in response to Binney in Philadelphia in 1862 is notable for its spontaneity, emergency timing, occasional anonymity, and general lack of self-promotion among the authors. The literature is pompous but not marked by political ambition. It constituted one side of a genuine discourse rather than a partisan harangue. A summary of the points made by the early Philadelphia pamphleteers adds up to a sober and impressive case against Horace Binney. Despite his protestations to the contrary, Binney’s argument, they said, was highly technical, and only a technical point allowed him to ignore the significant precedent of John Marshall’s opinion that only Congress could suspend the writ of habeas corpus. They recognized the possibility of genuine military emergency. They were willing to give the president who acted in such an emergency the benefit of the doubt. But such power ought not to be retained once Congress returned. Moreover, there was less reason for such emergency action in modern times, because the telegraph and railroads made it possible to reassemble Congress fast enough to react to rebellion. Bold action for which the executive took the responsibility was preferable to erosion of liberty by creeping legal interpretation by the likes of Horace Binney. And finally, there was more text to take into account than the habeas corpus clause itself, and microscopic analysis of one clause of the Constitution should not lead to ignoring the whole Bill of Rights.45 44

 Binney is not even mentioned in Daniel Farber’s Lincoln’s Constitution (University of Chicago Press, 2003), for example. Farber’s approach was to “use Lincoln as a test of modern constitutional doctrine, and use modern doctrine as a medium for assessing Lincoln’s actions” (p. 2). By such standards, Binney proved irrelevant. 45  This summary ignores the historical points from British history made by the pamphleteers in favor of the practical ones most important to the United States.

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Back in 1844, Democrats had fallen all over themselves to excuse the suspension of the writ of habeas corpus. In a lengthy congressional debate the party faithful sought to refund a fine levied on General Andrew Jackson by a federal judge who disapproved of the general’s brief suspension of the writ in New Orleans in 1815.46 But American politics were notably situational and opportunistic rather than ideological, and constitutional history was only a branch of politics. There were limits to political exploitation in a genuine national emergency. Some of the Philadelphia pamphleteers of 1862 dealt forthrightly with the inconvenient Jackson precedent. More important, almost all of them gave the president the benefit of the doubt when Congress was not in session. Even more important yet, by their refusal to attack the sitting president directly and by their focus on Binney’s argument for new constitutional principles, many revealed their essential loyalty to the country as well as to individual liberty. The Philadelphia pamphleteers provided one of the finest hours of the Democratic party in the Civil War. They were willing to cut the president some slack in 1861, holding their tongues in recognition of the unprecedented emergencies facing the Republican administration. It was Horace Binney and not the Democrats who overturned the nonpartisan response to curtailment of civil liberties in the Civil War. Yet the Democrats, who had every reason to embrace the Constitution as their very salvation from the aggressive measures of the Lincoln administration, and who now had a rather distinguished and sturdy literature of constitutional justification for protecting civil liberties, soon began to suffer the intolerable frustrations of opposition status during an American war. Their path from the spring of 1862 onward grew more and more wayward.

Conscription and the Case of Dennis A. Mahony Congressional authorization to suspend the writ of habeas corpus passed March 3, 1863, and that simply took away the Democrats’ strongest constitutional issue. It was much easier to prove that the president did not have the authority to suspend than it was to explain the problems involved in military arrests of civilians under congressional authorization for suspension. There was much to complain about, even so, but 46

 See Matthew Warshauer, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship (Knoxville: University of Tennessee Press, 2006).

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the Democrats were looking around, no doubt, for other constitutional issues that would make the Republican president seem a tyrant. To some, conscription seemed to offer such an issue. Conscription was imposed by Congress in March of 1863, and might have replaced presidential suspension of the writ of habeas corpus as a telling Democratic issue. Certainly individual liberty was at stake in the new issue, but it was constitutionally more problematic for the Democrats. Congress, under Article I, section 8, was empowered to raise armies, and Alexander Hamilton, in The Federalist, had argued at the time of the ratification of the Constitution that the power to raise armies should be unlimited. Although, in 1863 and afterward, the Democrats made constitutional complaints about conscription, they might have enjoyed greater success by abandoning complaints about constitutionalism altogether and focusing instead on issues of economic justice, which should have been familiar and comfortable ground for them. It was in fact easy to criticize Civil War conscription which allowed rich men to escape the draft while poor men could not. It was as simple as that. Unlike the habeas corpus question, Lincoln never felt compelled to issue a defense of conscription in a public letter. He wrote out a defense, but never issued it. He was on much firmer constitutional ground in the case of conscription than suspension, but he had a problem nevertheless. The conscription system instituted by Congress was constitutional but conspicuously unfair, as it allowed the draftee to purchase a substitute or to pay $300 in lieu of service. If Lincoln defended the draft on the grounds of constitutionality, on which ground he felt supremely confident, he would also have to defend the rest of the system, and that ground was shaky. So he did not defend it in public letters. In other words, the Republicans were vulnerable on conscription, but not as much on constitutional grounds as on grounds of equity. And there the Democrats made their mistake, likely the most tragic mistake of their Civil War history. They attacked the draft mainly on constitutional grounds. And they did not adequately exploit the vulnerabilities of the system in terms of equity. They were ceasing to talk about economics for the sake of constitutional will-o’-the-wisps. To be sure, this mistake was in keeping with the general overeagerness of the opposition in American wars to leap at constitutional arguments. It was also a result of one of the few avenues open to Democrats to protest conscription: the judiciary. Judges on the bench, and to be sure there was an abundance of Democratic ones available at the time, could attack only constitutional questions. Thus much of the battle over conscription came in legal opinions in court

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cases. But constitutionally the best avenue of attack on conscription came in a defense of state militias, which were mentioned along with armies in the Constitution and whose existence might be threatened by the ability of the national government simply to conscript all the men who might make up the militias. Adopting such arguments led to backward-looking positions rooted in an all but Balkanized vision of state rights. But the Democratic judiciary had nowhere else to go. That became the plight of the Pennsylvania Supreme Court when its Democratic majority declared conscription unconstitutional in the autumn of 1863. To be sure, Justice George W. Woodward denounced the provision for $300 commutation as “the first instance, in our history, of legislation forcing a great public burthen on the poor.” But Woodward had to admit in his opinion that “This, however, is an objection to the spirit of the enactment rather than to its constitutionality.”47 In the end, he relied on defending the existence of the state militias as essential under the Constitution. Fellow justice Walter H. Lowrie did likewise, saying that conscription of the very men who might constitute the state militias might leave “the states as defenseless as an ancient city with its wall broken down. Nothing is left that has any constitutional right to stand before the will of the federal government.”48 But surely the states of the Union were not ancient cities to be walled off from the power of the national government. The political value of a different kind of criticism can be seen in the work of Dennis A. Mahony, of Davenport, Iowa. Mahony was perhaps the most constructive among the party’s constitutional extremists. He had a better excuse than many for his extremism: Mahony was himself a victim of arbitrary arrest. He was editor of the Dubuque Herald when a federal marshal arrested him on August 14, 1862. He spent three months in Old Capitol Prison in Washington, DC.49 After his release in November 1862 he went to New York City to get his story into print. He worked like a house afire in that period. He wrote The Prisoner of State, founded an association of prisoners of state, and put together The Four Acts of Despotism in 1863. When he returned to Iowa, he was elected sheriff. Mahony left his most obvious lasting legacy in the literature about prisoners of state, and he wrote material that lay at the origin of American Bastile, by John A. Marshall, a book of biographical sketches of victims 47

 Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War, 222. 48  Ibid., 219, 222–223. 49  John A. Marshall, American Bastile: A History of the Arbitrary Arrests . . ., orig. pub. 1869 (Philadelphia: Thomas W. Hartley, 1885), 403, 407.

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of military arrest which was a Democratic staple for two decades after the war. In truth, the power of Mahony’s work lay in focusing not on abstruse constitutional issues but on personal and sensational details, the humiliating and scary circumstances of actual arrest and the abuse and hardships of imprisonment. During the war itself Mahony’s useful pamphlet, The Four Acts of Despotism: Comprising I. The Tax Bill, with All the Amendments. II. The Finance Bill. III. The Conscription Act. IV. The Indemnity Bill, published by Van Evrie, Horton & Co. in 1863, offered genuine service to the electorate. The Four Acts of Despotism also reveals the liabilities of the Democratic over-absorption in constitutional argument after the spring of 1862. The useful little book printed the provisions of the key congressional acts, and those were not easy to find without receiving copies of laws on some Congressman’s frank or having access to a law library. On the partisan side Mahony examined “despotism.” He thought conscription was unconstitutional, but he was not constrained to make that his only avenue of criticism. He could also criticize the parts of the conscription act that amounted to injustice and bad policy, even though the provisions in question might lie within the powers of Congress to raise armies. Mahony emphasized the way the bill favored the rich over the “comparatively poor.” Most Democratic journalists and politicians felt the urge to criticize the provision for purchasing substitutes and, especially, that for paying a $300 commutation fee to escape service if drafted. The problem was that the Democrats also preferred at least some provision to get out of service if drafted, and paying $300 was such a way. When Republicans eventually abolished commutation, Democrats complained, and that hardly looked like an appeal for equal treatment of rich and poor in the law. The Penn Argus and Westmoreland Democrat called repeal of commutation “the last despotic act of Congress” and “a blow aimed at the poor man.” The Lancaster Intelligencer termed it “one of the foulest outrages yet perpetrated by this tyrannical administration. The whole scheme,” the editors added, “is a blow aimed at the laboring classes of the country.” The Lebanon Advertiser defended comutation and substitution, recalling that “it was only by hard fighting that the Democrats compelled [the administration] . . . to retain the substitution feature [after the administration abolished commutation].”50

50

 Penn Argus and Westmoreland Democrat, July 6, 1864; Lancaster Intelligencer, July 28, 1864; Lebanon Advertiser, November 9, 1864.

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Mahony took a more practical approach. He suggested that exemptions be retained but graduated in proportion to the wealth of the draftee. Someone worth $1,000 could pay $300, and another person worth $10,000 could pay much more.51 Ultimately, he thought that a conscription act that applied to rich and poor alike without exemptions and substitutions would end the war because the wealthy classes would in that eventuality no longer support the war. Thus his record on conscription was not utterly consistent, and he did not always oppose it, thinking ultimately that a fair system of conscription was the best way perhaps to raise armies.52 Mahony could not resist making a racist point as well. The law emancipating the slaves in the District of Columbia, recently passed, had valued slaves at $300, and thus, he said, the conscription act equated the life of the poor white man in value to an African-American slave.53 On the constitutional point, Mahony struggled. He objected because the Second Amendment declared the militia essential to national defense, but he granted that a nation had the right of self-defense (not a constitutional right, of course), although so did individuals and their right was absolute “while that of a government is qualified by law.”54 He was at his best thinking about the needs of the “comparatively poor,” and constitutionalism proved a distraction. He did not advise desertion or draft dodging, and as sheriff he had a hand in developing the elaborate scheme to raise bounties in Dubuque (discussed in Chapter 1).55 Mahony was a Catholic, and he had received help in obtaining his release from Old Capitol Prison from the highest ranking Catholic prelate in America, Archbishop John Hughes. Hughes cultivated good relations with fellow New Yorker Secretary of State William H. Seward and told him, in regard to Mahony’s case, “I have known him for some thirty years. At first I thought him an idiot – or what the Irish people, in their strange blendings of charity & poetry together, would have called ‘an innocent.’”56 By and large the Democratic party abandoned its service to the “comparatively poor” in a desperate search for constitutional objections to the 51

 Dennis A. Mahony, The Four Acts of Despotism (New York: Van Evrie, Horton & Co., 1863), 21. 52  See also Hubert H. Wubben, Civil War Iowa and the Copperhead Movement (Ames: Iowa State University Press, 1980), 43, 67, 160. 53  Dennis A. Mahony, The Four Acts of Despotism, 22. 54  Ibid., 23. 55  See Hubert H. Wubben, Civil War Iowa and the Copperhead Movement, 67. 56  Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Pres, 1991), 58.

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administration’s war effort. That was the hidden tragedy of the Civil War Democratic party. The tragedy lay not as much in what the party stood for during the war as in what was quietly displaced by their noisy constitutionalist arguments. Of course, their message on race was retrograde and damaging, but that was nothing new. Neglecting the “comparatively poor” was a new development. The party’s 1864 platform would have no economic plank in it. By then the constitutional landscape had altered greatly, and the low-lying fruit had been picked. The Democrats had made their point about the suspension of the writ of habeas corpus: The president did not have the power under the Constitution. Republicans in Congress took notice – quietly – and authorized suspension in March 1863, but that did not quiet Democratic complaints. They grew and grew anyway, now serving more partisan ends as the presidential election of 1864 approached. The complaints, which originated in the habeas corpus campaign of 1862, widened to include condemnation of “arbitrary arrest,” trials by military commission, and “suppression” of freedom of speech and the press. The Democrats could by 1864 no longer focus on the writ of habeas corpus, a problem the Republicans in Congress had taken care of in 1863. The writ is not mentioned in the national platform of 1864. Abandoning the issue of habeas corpus, a debate the Democrats essentially won, only left the Democrats desperate for talking points. Binney had proved an easy target. Lincoln was more elusive. Therefore, the Democrats branched out into areas of constitutional complaint well beyond the bounds of good sense.

“A Convention of the States” The major development in Democratic constitutional ideas came from the notorious peace wing of the party: They decided to urge a convention of the states to settle the issues of the war. That was the most important development in Democratic political ideas after 1862. It is true that Democratic judges developed arguments against the constitutionality of conscription, in 1863, but, despite Democratic desperation in 1864, no direct complaints about conscription found their way into the national Democratic platform of 1864.57 57

 There was a blanket complaint about “the open and avowed disregard of State rights” in the platform’s fourth plank, and the arguments in the courts about conscription focused on state rights.

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“An ultimate convention of the States,” however, became a centerpiece of the 1864 platform. “Conventions” were a commonplace of American political life, of course, and the very heart of constitutionalism; Illinois held a state constitutional convention and completely revised its constitution in the very midst of the Civil War. But there had been only one national constitutional convention, the one held in 1787. What exactly did Democrats mean when they called for “a convention of the states” to settle the questions of the war? The Federalists back in 1814 thought it would take seven amendments to solve the problems of the War of 1812. President James Buchanan, on the eve of the Civil War, suggested in his last annual message, December 3, 1860, that three constitutional amendments would avert secession and save the Union. The Democrats during the war did not want to commit to anything as concrete as three or seven proposals for specific constitutional amendments; and besides, there was no hope of getting them passed in a Congress controlled by Republicans or ratified in a country in which eleven states claimed not to be in the Union and, in the twenty-three others that did, Democrats could put up a serious fight in at most five state legislatures (Indiana, Illinois, New Jersey, Pennsylvania, and New York above the four border states). So the remedy became “a convention of the states,” a vague but hallowed institution on which to rely for dramatic structuring of American society. As constitutional historian Michael Vorenberg shrewdly suggests, amending the Constitution to solve the slavery problem was an idea closely associated with South Carolina’s John C. Calhoun, not a man the Northern Democrats much wanted to be associated with in the Civil War.58 Even so, it was indeed true that some of the “convention of the states” schemes smacked of Calhoun’s ideas for a concurrent majority of sections. In a December 1862 “Letter to the President from a Prisoner of State,” Dennis Mahony, frankly declaring that he had learned such things by association with Southern prisoners of state in the Old Capitol Prison, called for a convention rather than fighting to bring the states together again. The North would come up with a new constitution and the South with a new constitution, and each would have one vote.59 Among the first to air a convention scheme, without so much of a Calhoun air about it, and to attempt to explain it at some length was William Bigler, a Democrat and former governor of Pennsylvania. 58

 Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2001), 17–18. 59  Dubuque Herald, December 7, 1863.

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He got as close as any Democrat ever got. As early as December 1862, after the surprising returns from the off-year elections were in, he began to consider the problem. He thought that a convention should be called right away so that it would be already sitting, ready to come up with solutions, as soon as the fighting ceased. The problems produced by the war were too large to be settled by the powers available to Congress and the president. Bigler was apparently thinking of a constitutional convention that could alter fundamental arrangements of the Union, and he knew it would have to be established constitutionally. Obviously the Republican-controlled Congress then sitting could not be counted on to produce the two-thirds majority in each house required by the Constitution to propose amendments. The new Congress reflecting the Democratic gains of the off-year elections would not meet until December 1863, and thus could not act immediately and, besides, the party would not control two-thirds even then. So Bigler suggested the other constitutional route: Two-thirds of the states could petition Congress for a convention to propose amendments, and Congress, according to Article V of the US Constitution, would have to call a constitutional convention. Still, even after the elections of 1862, the Democrats would not control anything like two-thirds of the state legislatures. Exclusion of the states in the Confederacy from the computation would make near-unanimity among the remaining states calling the convention a necessity. And were the states in the Confederacy to be counted in the two-thirds calculation? Were they really states? Bigler did not ask that question, but someone would before such a process was complete – of that we can be certain. Bigler apparently thought that two-thirds of the states still claiming to be in the Union would be constitutionally adequate, as he envisioned a convention already sitting and ready to act when hostilities lagged. But his proposal did not go precisely and arithmetically into probabilities and practicalities. In the meantime, he urged, the president should propose an armistice, and no harm would be done if the Confederates refused. Bigler did not consider what harm would be done if they accepted.60 Hiester Clymer and C. L. Lamberton discussed the idea in the Pennsylvania legislature in the spring of 1863. They maintained that if a convention were held at that time, “the following States, heretofore classed as Southern, would be represented therein, to wit: Delaware, 60

 For Bigler’s speech see Ebensburg Democrat and Sentinel, December 3, 1862. See also the account in the Clearfield Republican, November 26, 1862.

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Maryland, Virginia, Kentucky, Tennessee, and Missouri. These, added to the eighteen Northern, Western, and Pacific States, would make twentyfour, or more than two-thirds of the whole.” The arithmetic may have been sound but not the politics or military realities. Surely no one thought that Virginia or Tennessee was likely to participate voluntarily in a national constitutional convention at the time. The two Democratic politicians also speculated on the possibilities of having new states represented (Colorado or Nevada) or, if Federal arms were successful, Texas, South Carolina, and Arkansas.61 What is to be taken from this ridiculous scheme is not the evidence of practical consideration but the proof that when Democrats talked vaguely about “a convention of the states,” they meant a constitutional convention under another name. When New York’s Washington Hunt addressed the problem in the Democratic nominating convention in Chicago in 1864, he recommended “a Convention of States to review the Constitution, and adopt such amendments and modifications as may seem necessary.”62 Language could not get much clearer than that. There is not in Bigler’s nor in any Democratic proposal for peace a realistic plan – not to mention a constitutional one. The peace Democrats could not, for the life of them, figure out a constitutional plan for peace. The only constitutional plan was the one embraced by the war wing of the party: win the presidency in the election of 1864 and leave the problems of the war up to a more reliable commander-in-chief. Nevertheless, the idea of a convention of the states grew in appeal in 1864. Finally, the independent but unprincipled and opportunistic New York Herald, on August 12, 1864, announced that the way to end the war, “considering the desperate straits to which the rebellion is now reduced,” was through a six-months armistice followed by a convention of “all” the states. The process would begin with the dispatch of three peace commissioners to Richmond. They would negotiate the armistice. The Union naval blockade would be maintained so that the Confederates could not stock up on supplies over the six-month pause in fighting. The convention would be formed of one delegate from each congressional district plus two chosen at large from each state. They would meet in Baltimore on the first Monday in December. There they would consider “the ways and means for peace.” All this would be “subject to such conditions and ratifications as may be hereafter agreed upon.” The end result would be “a permanent 61

 Reading Gazette and Democrat, April 18, 1863.  Cleveland Plain Dealer, August 29, 1864.

62

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peace upon the basis of the Union and the Constitution.” The Herald agitated the question daily for over a week.63 Unlike the Democratic platform written less than a month later, the Herald argued from strength and not from failure. The premise of the newspaper’s proposition was that the rebellion was on its last legs and the rebels would be receptive to a plan that would save bloodshed and be to America’s interest. Indeed, the proposal by the Herald was so nationalistic that it was less a peace proposal than a proposal for imperialism and more war. It emphasized the assertion of national power and possible war with European nations that reunion would make possible. “With a combined veteran army of over a million of men,” the saber-rattling editors mused, “and a fleet more powerful than that of any European Power, we could order France from Mexico, England from Canada, and Spain from Cuba, and enforce our orders if they were not obeyed. The President at Washington would govern the New World, and the glorious dreams and prophecies of our forefathers would at length be realized.”64 Foolishly, the Peace Democrats based their proposal, which was never as specific as the Herald’s, on an entirely different premise – not that the rebellion was collapsing, but that the Confederates could not be defeated, or, at least subdued in such a way that a future Union could rest on mutual amity rather than brute force. Their plan rested on the notion, unacceptable to many Americans, that the war added up only to “four years of failure,” the exact words employed in the national platform.65 The details in the Herald proposal, such as a fixed meeting date and place, lent the plan an illusion of practicality and specificity, but the crucial details were in fact missing. The Herald, although the editors mentioned “ratification” and the “Constitution,” ignored the question of constitutionality. When the Democrats, who were likely spurred to action on peace by the Herald’s hare-brained scheme, appeared on the brink of embracing a similar scheme in their national platform later that August, the eagle-eyed Republicans at the New York Evening Post were not about to let them get away with it.66 The Evening Post offered an unanswerable critique. The paper’s position was simple: If a constitutional convention of all the states could be 63

 New York Herald, August 12–21, 1864.  Ibid., August 15, 1864. 65  Arthur M. Schlesinger, Jr., ed., History of American Presidential Elections, 1789–1968, 2:1179. 66  A meeting of Democrats in Syracuse had adopted the proposal, provoking the Evening Post analysis. See New York Evening Post, August 23, 1864. 64

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held, it would not be needed. The editors looked carefully at Article V of the Constitution, which stated: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of the Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” If Southern states would agree to call a national convention, no convention would be needed. Joining in such an application to Congress would surely amount to acknowledgment that the states were already a part of the Union. More to the point, and this was the great contribution of the Evening Post to the debate, Article VI, section 2 of the Constitution excluded any Confederate state from calling the convention. That part of the Constitution stipulated that “the Members of the several State legislatures . . . shall be bound by Oath or Affirmation, to support this Constitution.” Congress could not recognize a body of men (from a Confederate state) pretending to be a state legislature and not bound by the oath prescribed in Article VI as a state legislature capable of entering into an application for a constitutional convention. “It would be an unconstitutional movement, and mere nullity,” the Evening Post concluded.67 In plain English, the Democratic peace proposal was unconstitutional. Their national platform plank was unconstitutional. When the Democratic convention in Chicago adopted a plank in favor of an armistice and a convention of the states, the Evening Post, with good reason, rolled out its critique once again. They pointed out that proposals from a convention made up of only the Northern states “would be rejected by the others.” Otherwise they repeated their previous devastating editorial and dismissed the platform plank as “quackery.”68 Historians writing on Civil War politics seem not to have noticed the point made by the New York Evening Post. Democrats at the time could not help but notice, but, like the party’s presidential candidate, many newspapers ignored the embarrassing platform anyway. The Democratic Harrisburg Patriot and Union stepped up to the plate and attempted a reply. The proposed convention would not merely amend the Constitution, the editors said. There was no provision in the Constitution, they insisted, for the “present condition of the country.” In the end, they 67 68

 New York Evening Post, August 23, 1864.  Ibid., September 1, 1864.

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had to admit, “There may be no precedent for such a convention, it is true.” They offered hope rather than constitutional propriety. “By negotiation,” the editors said, “this war can be concluded, the union restored and the Constitution and laws established. If the proceedings to that end shall not be in accordance with the Constitution they will not be in opposition.” It was significant that they spoke of “establishing” the Constitution and laws now and not, as usual, of preserving them.69 There was nothing constitutionally conservative about the Peace Democrats. Such broad interpretation of the constitutionality of the Democrats’ key peace proposal as the Harrisburg paper made hardly matched their more customary position of insistence on compliance with the letter of the Constitution in war. They in fact clearly believed that the Constitution was no longer adequate to the crisis, although they had insisted it was up to now. It had to be changed. Such a position was ultimately an embarrassment to the Democrats. Even if their convention of the states were somehow made constitutional, advocacy of amending the Constitution in 1864 was hardly convenient for the Democrats’ other purposes, namely, blocking an amendment to the Constitution ending slavery, which the Republicans in 1864 were advocating in their national platform. After the election was over and the Republicans pushed for passage of the Thirteenth Amendment in the lame duck session of Congress rather than waiting the better part of a year for the new Congress, Democrats looked about desperately for an argument to use against it – a constitutional argument, of all things. The absurd position, taken by some Democrats in 1865, that such a constitutional amendment was unconstitutional, will be dealt with at the end of this chapter, but it bears mentioning here to remind us of the headspinning gyrations taken by political parties on constitutional questions in wartime.

The Democratic Platform of 1864 The platform adopted officially by the Democratic party in Chicago at the end of August 1864 was not a carefully honed ideological position but a hodge-podge of complaints, the product of the usual horsetrading and political jockeying, performed in this instance under the extreme duress of holding the presidential nominating convention too late in the summer – it was the latest in the year of all of American history. 69

 Harrisburg Patriot and Union, September 9, 1864.

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It was not possible to be painstaking and patient; the Democrats needed a candidate and a platform in a hurry. The most important election day would come in early October in Pennsylvania and Ohio – less than six weeks away. Besides the notorious peace plank with its proposed unconstitutional and blatantly impractical resolution of the war, the Democrats put together the following mishmash of constitutional issues: Resolved, That the aim and object of the Democratic party is to preserve the Federal Union and the rights of the States unimpaired, and they hereby declare that they consider the administrative usurpation of extraordinary and dangerous powers not granted by the Constitution – the subversion of the civil by military law in States not in insurrection; the arbitrary military arrest, imprisonment, trial, and sentence of American citizens in States where civil law exists in full force; the suppression of freedom of speech and of the press; the denial of the right of asylum; the open and avowed disregard of State rights; the employment of unusual test-oaths; and the interference with and denial of the right of the people to bear arms in their defense is calculated to prevent a restoration of the Union and the perpetuation of a Government deriving its just powers from the consent of the governed.70

Although the constitutional issues raised by the Civil War are, many of them, familiar to this day, this platform plank contains some very curious issues. Take, for example, the now familiar but then little-contested right to bear arms. As the somewhat unfortunate wording of the platform went, denial of that right was said to be “calculated to prevent a restoration of the Union.” But how? readers, even earnest Democrats, must have asked themselves. Was the want of arms in the hands of ordinary citizens in loyal states obviously going to keep the Union from being saved? Moreover, the amendment had not previously been a matter of vibrant political debate, and the platform made no connection between the complaint and the Second Amendment. Protection of the right to bear arms was not a universal concern for Democrats at the time, and indeed the issue had very specific and local origins. Its presence in the platform was likely testimony to the influence of Clement L. Vallandigham on the platform committee. For it was Vallandigham who had raised the issue back in the spring of 1863 when he was struggling with General Burnside in Ohio. Burnside’s military district also included Indiana, and in Indianapolis one of the general’s subordinates, Henry C. Carrington, had promulgated General Order No. 15. The order maintained that the “habit of carrying arms upon the person” 70

 Arthur M. Schlesinger, Jr., ed., History of American Presidential Elections, 1789–1968, 2:1179.

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had “greatly increased” and was “prejudicial to peace and good order.” It was a “violation of civil law” and, “especially at this time . . . unnecessary, impolitic, and dangerous.” Vallandigham had a field day ridiculing the order in a speech in Ohio given on March 21, 1863. He contrasted Colonel Carrington’s unconstitutional order with the document he held in his hand before the audience of cheering Democrats, “General Order No. 1 – the Constitution of the United States.” He quoted the language of the Second Amendment and then asked, “Who now is to be obeyed – Carrington or [George] Washington?”Furthermore,“General Order No. 2 – the Constitution of Ohio,” stated that “the people have a right to bear arms for their defense and security, and the military shall be in strict subordination to the civil power.”71 The right to bear arms may have been a political issue of some small note in the states of the Old Northwest in the spring of 1863, but it had not arisen as a problem elsewhere.72 Its inclusion in the Democratic platform was a sign of straining for issues and of Vallandigham’s outsized influence on the platform committee. The most obscure issue was the right of asylum. Of course, no such right appears in the Constitution of the United States, and not many of us today could come up with a cause célèbre involving the right of asylum under the Lincoln administration. But for a brief moment in 1864, there was a case of note: the rendition of José Augustín Argüelles. The incident, seized on in desperation by the Democrats, in fact opens for us a surprising angle of interpretation for the constitutional legacy of President Abraham Lincoln – which will provide much of the subject matter in the next chapter. Suffice it to say here, that Argüelles, a Spanish colonel in colonial service in Cuba, with appalling treachery, posed as a liberator, gained control of over a thousand Africans from an illegal slave ship, and then himself sold nearly 150 of them into slavery illegally in Cuba. Afterward, he took his ill-gotten gains, including a reward from the Spanish government for rescuing the slaves, and fled to New York City to escape arrest by the Spanish authorities on the island. He claimed asylum, and the United States, which had terrible relations with Spain, had no extradition treaty with that nation and could not legally return the execrable Argüelles to Cuba. But the Lincoln administration had a 71

 The Record of Hon. C. L. Vallandigham on Abolition, the Union, and the Civil War (Columbus, Ohio: J. Walter, 1863), 147. 72  Horatio Seymour included mention of the issue in his campaign speech in Milwaukee after the convention. See the Cleveland Plain Dealer, September 13, 1864. He complained that the right to bear arms was being denied in Illinois, Ohio, Indiana, and Michigan.

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determined and sterling record on enforcement of the anti-slave trade laws, and had only recently made an example of a convicted slave trader in New York City, by hanging him for piracy – the first time in American history such an execution took place. United States marshals, acting on orders for the secretary of state, arrested Argüelles and returned him to Cuba. Democrats complained of the arbitrary tyranny of the Lincoln administration in kidnaping Argüelles and denying him a fundamental right of asylum. One of the Democratic newspapers in New York City right away denounced the arrest as an “iniquity” and a “shame” and insisted that the right of asylum had been ignored.73 Democrats recalled the good old days when the United States granted asylum to political refugees from the Hungarian Revolution of 1848 – like the famous Louis Kossuth. Another of these heroes of the ’40s was a man named Martin Kostza, and the Cleveland Plain Dealer, another Democratic newspaper, remarked, “Oh, for the brave old days when we could rescue Kostza from the guns of a foreign fortress!”74 Democrats harped on the arrest all summer long, and, naturally, they remembered Argüelles when their national nominating convention met at the end of August. The rendition of Argüelles did pose a constitutional issue (which will be examined more closely in the next chapter), but not a very politic one. Argüelles’s crimes were so abhorrent that the Republican party mounted no defense of the constitutionality of the rendition. Their attitude was summed up in the editorial of the New York Times, saying that the Democrats were “perfectly welcome to this issue.”75 The point about the Democratic party and Argüelles is not that the Democrats were, even in this heinous case, perfect sticklers for constitutionality. That was not elsewhere apparent in the platform plank on peace. The point is their desperation in ignoring the repulsive crimes against humanity committed by Argüelles for the sake of dredging up another constitutional issue. One great problem with the Democratic platform of 1864 has been altogether overlooked. In rushing pell-mell into ill-considered and strained constitutional arguments, they turned their backs completely on their traditional appeal to the poor and working men and immigrants. No doubt, the Democrats needed to avoid traditional financial issues 73

 Quoted in New York Tribune, May 30, 1864.  Cleveland Plain Dealer, May 31, 1864. 75  New York Times, May 25, 1864. 74

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because their own party was sharply split between East and West on inflation and currency. But to ignore all economic issues, including ones which had been steadily discussed in politics in the previous two years – inflation and the national debt – seemed forgetful. To say nothing in the platform of their telling complaints about the inequalities of conscription was nothing short of a betrayal. The Civil War proved, in the end, to be a great constitutional embarrassment for the Democrats. They floundered from position to position. No sooner had the ridiculous platform of 1864 played its role in sending McClellan down to defeat than desperate Democrats had to think up arguments against the proposed Thirteenth Amendment abolishing slavery. Now they wanted to argue against making any fundamental changes, of the sort that could be accomplished only by a convention. In fact, they now had to make an about-face and oppose amending the Constitution altogether. An obvious argument against the measure was voiced by a Pennsylvania legislator in 1865, namely, that war was not the proper time to “change constitutional forms.”76 Congressman John V. S. L. Pruyn, of New York, prided himself on coming up with an entirely new argument against the proposed Thirteenth Amendment. He maintained in the summer of 1864, when the measure was first introduced in Congress, that “the right to amend is not a right to extend and enlarge the powers granted under the Constitution,” for that would mean that the reserved powers of the states could be diminished or even wiped out altogether. Such a development defied the whole concept of reserved powers under the Tenth Amendment, he insisted. When he consulted with Jeremiah Black, once the attorney general under James Buchanan, Black said that he had not thought of that idea before, that the “ground was new,” and that Pruyn was right. Democrats were never afraid to come up with “new” constitutional arguments to suit their situation.77 There was nothing particularly conservative about the Democrats’ constitutionalism during the Civil War. Their antic and irresponsible behavior was, we might say, endemic to the American two-party system: Wars generally send the opposition political party into a desperate search for constitutional issues. The true quality of their constitutional positions was desperation rather than conservatism or primitivism. Their 76

 Bellefonte Democratic Watchman, March 3, 1865.  Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, 134–135; and John V. S. L. Pruyn to Manton Marble, June 14, 1864, Papers of Manton Marble, Library of Congress, microfilm edition, reel 3.

77

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positions were much too opportunistically disparate to add up to any systematic or coherent view of constitutional interpretation or a vision of the Constitution. And in the bargain, they temporarily lost sight of their responsibility to their old constituency of the relatively poor and immigrants. A book on Democrats and the Constitution in the Civil War would simply fly apart in all directions. It is no wonder that no one has ever written one.

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chapter 5 Lincoln, the Constitution, and the Birth of Human Rights

Abraham Lincoln (see Fig. 5.1) had once stood where the Democrats did during the Civil War. As a Whig Congressman during the Mexican– American War, Lincoln thought he would “distinguish” himself as an opponent of the war.1 It was completely unnecessary for him to do that. Because of the peculiarities of the timing of congressional elections in the 1840s, Lincoln’s political exposure on the issue was actually quite limited, more or less straddling the war. He was running for the congressional seat in the only safe Whig district in Illinois in August 1846, some three months after war was declared. Years later he recalled accurately that his election to Congress in 1846 stood out as a particularly calm canvass. “When I came to Congress it was a quiet time,” he told his private secretary, “but always, except that, the contests in which I have been prominent have been marked with great rancor.”2 As Congressmanelect, he had to wait some sixteen months before taking his seat in the December 1847 session of Congress. Well before then, on September 14, 1847, Mexico City fell to General Winfield Scott, so that Lincoln arrived in Washington, after a “quiet” election, only after the fighting had ended and in the midst of peace negotiations. He did not need to say anything about the war.

1

 The word is Lincoln’s own – in a letter to his law partner William H. Herndon about his upcoming speech in Congress. Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, New Jersey: Rutgers University Press, 1953–1955), 1:420. 2  John G. Nicolay, and John Hay, Abraham Lincoln: A History, 10 vols. (New York: The Century Co., 1890), 9: 375–376.

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Figure 5.1  Abraham Lincoln. (Library of Congress Prints and Photographs Division, Washington, D.C.)

20540 USA hdl.loc.gov/loc.pnp/pp.print

Lincoln decided to wade in on the subject anyway. He had little time to waste. After his arrival in Congress on December 2, 1847, he immediately made known his intentions to oppose the war. On December 22, he introduced his own resolutions asking President James K. Polk to identify the precise spot (was it really on American soil?) where the hostilities began. On January 3, 1848, he voted for another Whig’s declaration that the war was “unnecessarily and unconstitutionally begun by the President.”3 Whigs as a whole voted for this January statement, though, in fact, Congress had declared war formally with most Whigs voting aye. Lincoln’s own “spot” resolutions, as they came to be called, constituted flamboyant grandstanding by a freshman legislator – just the sort of opposition high jinks to be expected during American wars. On January 12, 1848, he launched into a bitter speech denouncing the president for initiating the war. He concluded the speech by saying of the president, “His mind, tasked beyond it’s power, is running hither and thither, like some tortured creature, on a burning surface, finding no position, on which it can settle down, and be at ease . . . he knows not where he is. He is a bewildered, confounded, and miserably perplexed man. God grant he 3

 Earl Schenck Miers, ed., Lincoln Day by Day: A Chronology, 1809–1865, 3 vols. (Dayton, Ohio: Morningside, 1991), 1:297–299.

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may be able to show, there is not something about his conscience, more painful than all his mental perplexity!”4 Lincoln would have to suffer much criticism as president, but he had dished out plenty when the shoe was on the other foot. Although some historians have criticized Lincoln for his partisan opposition to the Mexican War, saying that he misrepresented his expansionist Western constituents, constitutional historian Brian Dirck is the first to point out a previously unnoticed quality of Lincoln’s opposition to the Mexican–American War, namely, its want of careful constitutional consideration: The subject of war surfaced in his antebellum political career on only one occasion, when Congressman Lincoln spoke out against President James K. Polk’s pursuit of war with Mexico in 1846. His opposition was rooted in politics and a moral questioning of the president’s actions more than any serious analysis of Polk’s constitutional war-making powers. Lincoln voted in favor of a Whig resolution claiming the president had begun the war “unnecessarily and unconstitutionally,” but neither he nor the resolution’s authors were specific about their constitutional objections. Lincoln did not mention the Constitution in either his “spot resolutions” of December 1847 (in which he questioned the “spot” of soil upon which Polk claimed Mexican soldiers attacked the American army) or later in his congressional speech on the subject.5

Lincoln did reveal in this episode a talent for constitutional explanation after the fact. He would excel at that as president. When challenged about his record on the Mexican–American War, in this instance by none other than his own law partner and old political ally back in Springfield, William H. Herndon, Lincoln offered up, after the fact, a patient and crystal-clear explanation of his constitutional position: The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.6 4

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 1:441–442.  Brian R. Dirck, Lincoln and the Constitution (Carbondale: University of Southern Illinois Press, 2012), 52. For criticism of Lincoln’s position on the Mexican War see Donald W. Riddle, Congressman Abraham Lincoln (Urbana: University of Illinois Press, 1957), Ch. VI. 6  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 1:451–452. Herndon’s letter, which Lincoln was answering, has never been found, and we do not know precisely what Herndon’s argument was. 5

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The letter to Herndon, written on February 15, 1848, was the longest document Lincoln had written about the Constitution up to that point in his political career. The fact remained, whatever President Polk’s deceptions about the spot where American blood was shed in the incident on the Texas–Mexico border that started the war, Congress had declared war on Mexico. It was no mere executive police action. Because the war proved short and one-sidedly victorious for the USA, neither Lincoln nor the rest of the Whigs felt very keenly the frustrations of being in the opposition during a war. For Lincoln himself as a Congressman, it was a matter of only a few weeks. The Whigs had little opportunity to indulge the accustomed constitutional extremes of American opposition parties in war. Even so, Lincoln had voiced unnecessary constitutional objections. Lincoln and the other Whigs, like other opposition parties in similar circumstances, strained to find constitutional objections to the war and its administration. The Democrats in the Civil War were no different; they simply had to endure a longer war of more uncertain outcome.

Changing Course on the Constitution The abrupt change in political circumstances for Lincoln when he was elected president during the secession crisis naturally caused him to look at the Constitution differently – and it caused him to look in places in the Constitution he had doubtless never looked before. It bred some confusion in his ideas and has bred a great deal of confusion among historians ever since. The overall tendency in historical writing has been to cast President Lincoln’s constitutional ideas in too conservative a mold. In fact, he had for a decade or more before the war sailed along politically on a path of interpretation of the Constitution as a basically liberal document, fully equal to the needs of the growth of liberty and democracy. Secession stopped him dead in his tracks; he simply was not prepared for it as a constitutional problem. But the subsequent period in which he scrambled for constitutional authority for rejecting secession and going to war proved to be brief, and he soon resumed a steady course of interpreting the Constitution as a document of liberal intent, searching out parts of it that had never been put to such uses before. On the brink of his presidency, Lincoln no doubt assumed that he would continue on the steady course of liberal antislavery constitutional interpretation which he had indulged for over a decade. He appears to have been wholly unprepared for secession, especially in constitutional

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terms. His subsequent scramble first to appease the South and then to locate constitutional justification for rejecting secession and to find powers for government coercion of the rebels, threw Lincoln temporarily off course. On the very day, December 17, 1860, that the South Carolina secession convention first met in Charleston, president-elect Lincoln responded to a letter asking for his views on secession. About all he could say was, “I believe you can pretend to find but little, if any thing, in my speeches about secession.”7 Lincoln searched thereafter, under considerable intellectual duress, to find text on an unfamiliar subject for his upcoming inaugural address. In short, secession sidetracked the normal trajectory of Lincoln’s constitutional thought. He began to look around in the document and in constitutional history for powers to coerce the rebels and for doctrine to buttress the Union.8 What is surprising about Lincoln’s subsequent exploration of the Constitution as president is not its absorption in searching out doctrines to increase government power to use against the rebels. That lasted for about one year. Ignoring the lures of authoritarianism, Lincoln’s constitutional ideas were thereafter marked by adventurousness, the accustomed wartime political grandstanding, and bold liberalism. Despite the opportunity afforded by the Civil War to monopolize power and the need for political order, Lincoln helped eventually to establish a Constitution in service to human rights. Constitutional history has lent to some of Lincoln’s constitutional gyrations as president a solemnity and gravity they did not really deserve. The Constitution was still a branch of politics during the Lincoln administration, and there is no reason to take seriously everything that was said, even by Lincoln, particularly about improbable amendments. The secession crisis unleashed a torrent of proposals for constitutional amendments. Michael Vorenberg says that “roughly 150 slavery amendments were proposed between December 1860 and March 1861, when Lincoln took office.”9 A creature of political habit, Lincoln could not resist jumping on the political bandwagon. But he was president now, and 7

 Ibid., 4:154.  The momentary search has too much influenced the overall interpretation of Lincoln’s constitutional ideas. Daniel Farber deals with the categories of secession, sovereignty, the supreme law of the land, the Union forever, coercion, and presidential power before looking into individual rights, for example. See Farber, Lincoln’s Constitution (University of Chicago Press, 2003). 9  Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge, Mass.: Cambridge University Press, 2001), 18. 8

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his participation in the mania blazed the trail for the Civil War’s version of war-induced amendment mania. Flummoxed by the Constitution’s want of a declaration of perpetual union and surprised by Southern determination to secede, the struggling president decided to hold firm in his First Inaugural Address on the inviolability of the Union under the Constitution, but to give an illusion of appeasement by endorsing the proposal for a meaningless amendment to the Constitution that appeared to guarantee slave property.10 Thus, in March 1861 Abraham Lincoln proposed the first Thirteenth Amendment, which would have guaranteed slavery. Lincoln as much as said out loud that the proposal was empty. He expended the better part of two paragraphs of the inaugural address on the propriety of amending the Constitution to meet the crisis, expressing a preference for the convention mode as more democratic than the congressional mode. He coyly said that he had heard about a congressional proposal for an amendment to guarantee slavery in the states where it already existed and then, in rather gingerly fashion, said, “holding such a provision to now be implied constitutional law, I have no objection to its being made express, and irrevocable.”11 In other words, Lincoln had long believed, with most Republicans, that slavery was protected by the United States Constitution in the states where it already existed. To make that a matter of constitutional amendment would not, to his way of thinking, change a thing. But it did not lend anything to the dignity of amending the Constitution to admit such a thing out loud in a presidential address.12 There is no reason to treat with great solemnity what ensued in Lincoln’s record on constitutional amendments. He was not exempt from the culture of American politics. By 1862 the political pressures on Lincoln were very great, and the war was going rather poorly. As the fateful year of 10

 Kenneth M. Stampp, “The Concept of a Perpetual Union,” in Stampp, The Imperiled Union: Essays on the Background of the Civil War (New York: Oxford University Press, 1980), 3–36. 11   Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 4:269–270. Michael Vorenberg argues that Lincoln was not at all in the dark on the nature of the proposed amendment. See his Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, 20–22. 12  For a book that takes this proposed amendment seriously as a political attempt to appeal to the border states in the secession crisis, see Daniel W. Crofts, Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union (Chapel Hill: University of North Carolina Press, 2016). Crofts offers a dense political context but is less concerned to describe the proposal’s place in constitutional history.

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the preliminary Emancipation Proclamation and the off-year elections drew to an end, Lincoln found himself rethinking his administration’s positions. In behavior akin to picking at a constitutional scab, Lincoln simply could not leave well enough alone when it came to emancipation. Although the dramatic Proclamation had already been announced on September 22, 1862, Lincoln kept fiddling with the problem. He proposed three constitutional amendments in his message to Congress of December 1, 1862. They were in every way unnecessary and constituted superfluous grandstanding. He now offered, first, economic compensation to states that would instrument any plan to end slavery within their boundaries by the end of the century (thirty-seven years away, as he coldly and explicitly admitted). The amendment specified the interest rate of the US bonds to be delivered to each state and the sum to be allotted for each slave.13 This provision violated every rule of constitutionmaking and even common sense: Who would lock in an interest rate by constitutional amendment? Between drafting and ratification, the rates might change enough to make the amendment unacceptable to any rational investor. Even constitutional historian James G. Randall, who found Lincoln’s plan impressive on the whole, recognized the complete superfluity of this part of Lincoln’s initiative. Surely Congress was already empowered by the original document to raise money to give to states. As Randall put it, rather obliquely, “For even so much national action as was involved in ‘cooperation’ with States desiring to give freedom to their slaves, Lincoln favored the adoption of a constitutional amendment, though this financial ‘cooperation’ is the sort of thing that Congress nowadays regards as a part of an ordinary day’s work.” Randall commended the proposal’s embodiment in the form of proposed constitutional amendments by inferring that Lincoln “wished so grave and important a matter to be dealt with by a solemn, fundamental act.”14 Politically, though, the constitutional formatting made the measure not so much “solemn” and “fundamental” as impractical and impossible of implementation. It can only be accounted for by insincerity of purpose or by the contagion of wild constitutionalizing that accompanies America’s wars. Slaves who thought they had been promised freedom on January 1, 1863, in the already announced preliminary Emancipation Proclamation, discovered that the president was in December 1862 proposing 13

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:530. Lincoln left blank, for Congress to insert later, the actual interest rate figure and number of dollars. 14  James G. Randall, Constitutional Problems under Lincoln, orig. pub. 1926 (Urbana: University of Illinois Press, 1951), 369.

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amendments to continue their slave status until 1900. There was much more bad news in store for them in Lincoln’s plan. One of the amendments would authorize Congress to appropriate funds for colonization – that is, funds to facilitate their exodus from the United States. This too was entirely superfluous. Congress could surely offer funds for such a purpose without authorization by constitutional amendment, especially since the great majority of Southern slaveholders who might raise constitutional objections were no longer represented in the United States Congress. Lincoln’s three amendments confused people at the time, and they have confused historians ever since – from Randall, writing in the 1920s so solemnly about these proposals that in truth verged on political dirty tricks, to constitutional historian Akhil Reed Amar, writing in the twentyfirst century. Randall characterized Lincoln’s message to Congress as “able,” and the plan as revealing “Lincoln’s lawyerlike caution in dealing with the slavery question as a matter of permanent law” and “circumspection in his official acts.”15 In our own time, Amar has said that Lincoln “strengthened his moral standing” with the plan, though clearly the effect was the reverse, as the amendments were widely regarded as reneging on the Emancipation Proclamation.16 The whole plan of the December 1, 1862 message simply cannot be taken seriously. Of course Lincoln could rely on a Republican-controlled Congress to propose his amendments in a way that met the requirements of the United States Constitution. Nevertheless, under the circumstances 15

 Ibid., 370.  Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), esp. 357–358. Amar obviously ignored the contemporary political context, which looked on the proposed amendments as puzzling contradictions to the promises of the preliminary Emancipation Proclamation. Amar assumed that Lincoln was thinking only of the border states exempted from the Emancipation Proclamation. He calls the proposals of December 1862 the Thirteenth through Fifteenth Amendments, and he compares them with the real ones that passed during Reconstruction, but he does not remark on the obvious quality of political grandstanding in Lincoln’s unlikely proposals. Michael Vorenberg attempts to dramatize the daring of the Thirteenth Amendment by noting the long passage of time since the previous amendment to the Constitution, but this simply ignores the ready and loose brandishing of proposed constitutional amendments, which Vorenberg himself documents, and the ready production of amendments by the president, and the Democrats’ deathly flirtation with a convention of the states that war produced. Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, 20–22. He is ambivalent on Americans’ unwillingness to see the great document revised. See p. 30, for example. Vorenberg is careful to supply political context, but he does not recognize that constitutional history then was merely a branch of political history.

16

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of war, these measures were not likely to be considered or passed anyway. People knew that at the time. As Louis P. Masur has noted astutely, the conservative critic Orestes Brownson was able to “dismantle” Lincoln’s meaningless proposal. It did not take Brownson long to figure out the flaws; his article on the plan appeared in Brownson’s Quarterly Review in January 1863. How on earth was the president to obtain ratification by 75 percent of the states when over 30 percent of the states insisted they were out of the Union and would not participate, while another 10 percent of the states remained in the Union but were determined to hold on to slavery anyway?17 On the practical aspect of actually passing the amendments, Lincoln offered only this: The requisite three-fourths of the States [required for ratification] will necessarily include seven of the Slave states. Their concurrence, if obtained, will give assurance of their severally adopting emancipation, at no very distant day, upon the new constitutional terms. This assurance would end the struggle now, and save the Union forever.18

To speak of gaining the concurrence of three Confederate states and all of the four border states simply begged the question. Frederick Douglass, who did not mince words, commented that Lincoln must be “demented.”19

Back on Course: The Constitution as a Liberal Document After the December 1862 message with its fruitlessly absurd proposal to win the war by amending the Constitution, Lincoln was put off proposing amendments to the Constitution for a year-and-a-half. No sooner did he drop the amendment enterprise, however, than the frustrated Democrats took it up. Of course, their revisions of the Constitution would have been very different in content, and they couched their scheme to amend the Constitution as a “convention of the states” to end the war. Presumably, much of this near madness was induced by the results of the off-year elections which the Democrats often interpreted as a mandate for peace – combined with the super-heated political atmosphere induced by civil war. 17

 Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union (Cambridge, Mass.: Harvard University Press, 2012), 182–183. Masur performed valuable work here in recalling to historians’ attention the importance of Brownson’s searing critique. 18  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:527. 19  Louis P. Masur, Lincoln’s Hundred Days: The Emancipation Proclamation and the War for the Union, 180. For other contemporary sources, including a humor magazine, that heaped scorn upon the plan, see Masur’s able discussion on p. 182.

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The president somehow recovered his faculties and decided to look for the powers he needed to change America fundamentally in Congress and in the presidential office as already described in the US Constitution. He did not support the movement, already afoot in Congress in December 1863, to amend the Constitution to end slavery forever in all of the United States. It has been problematic for historians that the initiative for the amendment came not from the Great Emancipator but from James Ashley, Congressman from Ohio.20 That embarrassing fact has tended to hide from view Lincoln’s creditable and even bold record of searching within the Constitution for ways to expand its humanitarian reach. With the brief side excursion into finding constitutional justification to resist secession by war and to limit ordinary civil liberties in the North during the war, Lincoln rejoined the antebellum path he had been travelling toward interpreting the Constitution as a liberal document. Lincoln was back on track. He now entered a period of adventuresome exploration of the Constitution in search of human rights. We can find the first hint of constitutional adventurousness back in mid-1861. After thinking about the problem of secession for months after the First Inaugural Address, Lincoln sallied forth in his message to the special session of Congress of July 4, 1861, with a new argument based on Article IV, section 4 of the Constitution, the provision guaranteeing a republican form of government to the states. He argued that secession would permit a state to “discard” a republican form of government and that therefore, in order to guarantee a republican form, the national government faced the necessity of preventing secession. He never repeated that rather silly argument again, but he had discovered the flexible wonder of Article IV, section 4.21 A guarantee of republicanism was an alluring, expansive, and open-ended promise. Lincoln continued to scour the text of the Constitution, but after 1862 he had other ends in view. Even while he scrambled to buttress Union, Lincoln was finding powers in the Constitution to sustain his vision of the document as liberating and even humane. Take the pardoning power, for example. Surely, no president in American history used it more, to better end, or more creatively. Lincoln was an abundant pardoner, who

20

 Leonard L. Richards, Who Freed the Slaves? The Fight over the Thirteenth Amendment (University of Chicago Press, 2015), 2. 21  Mark E. Neely, Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (Chapel Hill: University of North Carolina Press, 2011), 57–58.

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expanded the pardoning power morally to include marginalized peoples in America not accustomed to receiving its relief.22 Because of the vast civil war, Lincoln enjoyed greatly expanded powers. As commander-in-chief, under the Rules and Articles of War, he reviewed the capital sentences of courts martial and, by vague extension, those of trials by military commission as well. He would use the pardoning power to a startling end because of the proliferation of military commissions during the war. In August 1862 Sioux Indians rebelled in Minnesota and there ensued a sharp and bloody war. United States soldiers quelled the rebellion quickly. Afterward, shortly after the issuance of the preliminary Emancipation Proclamation, the army established a military commission to try captured warriors. The commission sentenced over 300 to death “for participation in . . . murders and outrages.”23 At that point, a great number of lives were at stake, demands for speedy execution were overwhelming, and the administration was digesting the unpleasant results of the off-year elections. On the same day, November 10, 1862, that Lincoln answered Carl Schurz’s impertinent letter blaming the election losses on the president, Lincoln wrote to General John Pope in Minnesota demanding the trial records from the aftermath of the uprising.24 The Indian uprising in Minnesota was thus one of the events that the president had been preoccupied with while Republican preparation for the elections stood still. Surely, it was no time for maverick thinking – or even for much thinking at all about this distraction from the greater rebellion before him. Nevertheless, Lincoln thought about the problem a lot and in a genuinely original vein. The president had the records of the accused reviewed. At this point he knew exactly what he wanted to have done, but he did not quite know how to do it – and he did not want to spend much time getting the job done. Lincoln dedicated two paragraphs of his annual message, delivered on December 1, 1862, to generalities about the Minnesota uprising and the need for reform in the Indian system – a perennial need. Then, on the very same day of the message, he got down to specifics with the Judge Advocate General of the Army, Joseph Holt. The president asked Holt’s “legal opinion whether if I should conclude to execute only a part of 22

 The basic book on the subject is Jonathan Truman Dorris, Pardon and Amnesty under Lincoln: The Restoration of the Confederates to Their Rights and Privileges, 1861–1898 (Chapel Hill: University of North Carolina Press, 1953). 23  Scott W. Berg, 38 Nooses: Lincoln, Little Crow, and the Beginning of the Frontier’s End (New York: Pantheon, 2012), 165–167. 24  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:493.

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them, I must myself designate which, or could I leave the designation to some officer on the ground?” The judge advocate general’s response was very revealing: I do not understand the precise form in which the question, referred to in your note of this morning, presents itself. If it be on an application to pardon the Indians condemned, or a part of them, I am quite sure that the power cannot be delegated, and that the designation of the individuals, which its exercise involves, must necessarily be made by yourself. The designation of those upon whom the sentence is to be executed, is but the exercise of the same power, being merely an approval of the sentences and a refusal to pardon. I am not aware of any instance in which the delegation of this delicate and responsible trust, has been attempted. In view of the large amount of human life involved in these proceedings, would it not be well – if this step has not already been taken – to submit them to the Attorney General for the purpose of more satisfactorily determining the question of their regularity?25

Holt was obviously not much acquainted with the facts of the case. There was no “application to pardon” for these poor prisoners – quite the contrary. There were mostly applications to execute them, and soon. More to the point, the judge advocate general’s legal confusion stands out. Holt was an able lawyer, and his response suggests the difficulties and novelty of the situation in law. Indian wars did not customarily end in trials of accused warriors. He seems not to have been clear whether Lincoln was merely reviewing capital sentences issued by military courts routinely under the Articles of War or whether the president contemplated the use of the pardoning power directly under the Constitution, Article II, section 2. Ultimately the source of the power to act may not have mattered.26 But it is surely even more significant yet that the presi­ dent was hardly the soul of caution about this matter. Lincoln was not about to wait for an opinion from old Edward Bates. He would go with what he had. He was adventurous and confident in his own judgment in constitutional matters. Joseph Holt was not a timid man, but he did not understand the legalities and wanted to consult some other lawyer who might. Lincoln needed to act with clemency and to move on to other harrowing problems. The president was bold and quick to interpret the available legal powers in such a way that they allowed him to save most of the prisoners from death. 25

 Ibid., 5:537–538 and 538n.  For the most part, the questions surrounding the aftermath of the Minnesota uprising were discussed in terms of morality (at that time and ever since), and in terms of barbarism and civilization (at that time). The legal or constitutional issues are not often raised.

26

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The practical result of the review of the trials was that fewer than forty of those sentenced to die appeared to have participated in murders or rapes; the rest had engaged in what would otherwise be called warfare. Lincoln decided to insist on the vital distinction between murder and rape, on the one hand, and war, on the other, and ordered directly that the death sentences be carried out only for those who were deemed guilty of murders and outrages. In the end fewer than forty were hanged.27 Lincoln learned several things from the episode. He insisted on the laws of war regardless of the “race” of the warriors involved: Enemies captured in battle were to be treated as prisoners of war and not murderers, period. He made no distinction between what at the time were called civilized or barbarian enemies, though such a distinction would be maintained in the code of the laws of war that the administration published later in the spring of 1863.28 He learned that his individual power for mercy could have extensive reach – all the way to Minnesota and, more to the point, to embrace hundreds of men at a time. But he also learned that he could not delegate the pardons; he apparently had to name the prisoner and pardon him personally. In the end, the president was forced to write in longhand a laborious and difficult letter of three pages’ length on his own Executive Mansion stationery, ordering a general in Minnesota to execute thirty-nine men, listed by names carefully transcribed letter by letter: for example, “Toon-kan-e-chah-tay-mane.”29 Lincoln named every man to be hanged and ordered the remainder of the prisoners only to be held subject to further orders.30 The mass hanging occurred the day after Christmas, 1862, in Mankato, Minnesota. It was a grisly and memorable scene, but Lincoln had saved hundreds from death – by dint of boldness and fairness in legal and constitutional interpretation. President Lincoln may have thus used the power of pardon, a vestige of absolute monarchy lodged firmly in Article II, section 2 of the Constitution, as no one ever had before and well before it occurred to him to apply it to

27

 Scott W. Berg, 38 Nooses: Lincoln, Little Crow, and the Beginning of the Frontier’s End, esp. 237. 28  See John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012), 330–334. 29  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:542–543. The status of one of the men on the list changed later, and only thirty-eight men were hanged. Lincoln’s letter is illustrated in Kenneth Carley, The Dakota War of 1862: Minnesota’s Other Civil War (St. Paul: Minnesota Historical Society Press, 1961), 73. 30  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5, 542–543, 537–538 and n.1

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the problem of reconstruction.31 The power as described in the Constitution reached only to “offenses against the United States,” and before the Civil War that greatly limited its usefulness, as there were few federal crimes (like counterfeiting). Lincoln’s initial expansive humanitarian use of the pardoning power began as an extension of his power as commander-in-chief over military courts martial and trials by military commission. In a year’s time, on December 8, 1863, he would base crucial national policy and strategy foursquare on the pardoning power in Article II, section 2.32

International Law Lincoln was beginning to see the Constitution as a humanitarian document. Humanitarian ideals reached beyond national boundaries, and to understand the search beyond the United States for constitutional ideals we can call on the aid of historian William A. Blair. Blair has begun to probe the ways in which the Constitution in fact proved inadequate for the Civil War. The North’s leaders, he argues, were forced to seek other sanctions for law and liberty. In his innovative book, With Malice toward Some: Treason and Loyalty in the Civil War Era, Blair documents crucial uses of international law by the Lincoln administration to justify essentially domestic policies.33 Blair noted the recourse to international law, even essential reliance on it, for the constitutional justification of emancipation. The principal source of these far-reaching arguments was not Lincoln himself but the War Department solicitor, William Whiting. Whiting worked for the War Department but his heart was as set on emancipation as on military victory. The two turned out to be inseparable. Lincoln liked Whiting’s work. When the solicitor fell ill in 1865 and was so frequently absent from his post that the secretary of war wanted to dismiss him, Lincoln replied, “I like Mr. Whiting very much,” and stated a preference for giving this useful lawyer a choice about resignation.34 31

 The pardon of the Minnesota uprising warriors is not even mentioned in Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson: The Restoration of the Confederates to Their Rights and Privileges, 1861–1898 (Chapel Hill: University of North Carolina Press, 1953). 32  Herman Belz says “the pardoning power was the sole constitutional authority for making emancipation a condition of reconstruction.” See Belz, Reconstructing the Union: Theory and Policy during the Civil War (Ithaca, New York: Cornell University Press, 1969), 160. See also n.74. 33  William A. Blair, With Malice toward Some: Treason and Loyalty in the Civil War Era (Chapel Hill: University of North Carolina Press, 2014), 99. 34  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 8:373.

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As Blair points out, President Lincoln, while explaining emancipation in that famous public letter of August 26, 1863, to James C. Conkling (discussed briefly in Chapter 2 of this book), said, “I think the constitution invests its commander-in-chief, with the law of war, in time of war.”35 The laws of war and international law were not one and the same, but the laws of war were a part of international law.36 Lincoln could not find a legal path to emancipation without going through international law. Put simply, international law was the source of the idea that the commander-in-chief could free an enemy’s slaves as an act of war. In fact, the entire content of international law as Lincoln embraced it in the so-called laws of war was humanitarian. It is significant in this regard to view the whole context of Lincoln’s statement about the “law of war, in time of war” from the Conkling letter. Lincoln was writing as though he were in dialogue with a critic of the Emancipation Proclamation: You say it is unconstitutional – I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there – has there ever been – any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.37

That famous passage provides the language for proving Lincoln’s conscious adherence to the laws of war, the restraints upon military behavior aimed at lessening useless suffering. For all the talk of destroying property in the statement, in fact the idea of destroying slavery to which Lincoln referred was metaphorical. The Emancipation Proclamation did not destroy anything physically. It only eliminated property rights over other persons. The Union army, for the most part, did not “seize” slaves. It accepted and often fed and sheltered them if they fled into Union lines. And the other matters referred to were restraints on destruction, and killing of people.

35

 Ibid., 6:408.  William A. Blair, With Malice toward Some: Treason and Loyalty in the Civil War Era, 98–99. 37  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:408. 36

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The law of war in time of war was basically humanitarian and aimed at lessening destruction of life.38 Lincoln found in international law the humanitarianism that he needed to infuse into American law under the Constitution. The so-called laws of war were for the first time in American history codified by the Lincoln administration as General Orders No. 100, of April 24, 1863. They were drafted for the most part by law professor Francis Lieber at the direction of General Henry W. Halleck. What is notable, besides the landmark codification of the laws that restrained soldiers from killing prisoners of war and committing other atrocities, was that the code was a product of the executive branch. The United States Constitution gave Congress the power under Article I, section 8 “to make rules for the government and regulation of the land and naval forces.” The president had quietly usurped legislative authority, not for the first time, but definitely in the cause of humanitarian restraints.39

Reconstruction By the end of 1863, the president was seeking a reconstruction plan, which he announced in his annual message of December 8, 1863. He had learned from the unfavorable reception of the three bogus constitutional amendments he had proposed in the previous year’s annual message, that constitutional amendments could not, under the circumstances, be taken seriously, for ratification was impossible. He rummaged around in the Constitution to find ways to accomplish his ambitious ends under the existing Constitution. He emphasized in the message to Congress to which his new plan was attached that he did not want to attempt “anything beyond what is amply justified by the Constitution.” At first he hit upon the executive pardoning power, which he had used in Minnesota 38

 The role of international law in the Civil War has only just come under serious consideration in the literature on the war. It has so far been too much conditioned by the existing categories of interpretation. For a book to be admired for its serious consideration of international law in the period, but also to be used carefully because the argument is too far adapted to the existing tough categories of interpretation of warfare in the Civil War, see John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012). For specific reservations about the interpretation see Mark E. Neely, Jr.’s review in the American Historical Review, 119 (April 2014), 466–468. 39  See Richard Shelly Hartigan, Lieber’s Code and the Law of War (Chicago: Precedent, 1983), 45 and passim; John Fabian Witt, Lincoln’s Code: The Laws of War in American History, 229–247. The New York World, for one, pointed out that the president had usurped Congress; see May 23, 1863.

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just a year before, as a way to recognize Confederates who were willing to return to the Union. The “Constitution authorizes the Executive to grant or withhold the pardon at his own absolute discretion; and this includes the power to grant on terms, as is fully established by judicial and other authorities,” he explained.40 That relic of kingship was probably not the best constitutional leg to stand on for a program as grand as reconstructing the Union. “Absolute discretion” may have sounded a bit tyrannical. The president’s Proclamation of Amnesty and Reconstruction of December 8, 1863, later called the Ten Percent Plan, stipulated that when ten percent of the eligible voters of 1860 in a Southern state took an amnesty oath, they could elect a convention to form a new state government. Lincoln asserted the power as president to pardon these Southern voters, but he could not guarantee that the new state governments so created would not be like the old ones, bastions of slavery and therefore of disloyalty. In the provision for guaranteeing a republican form of government to the states in Article IV, section 4 of the US Constitution, Lincoln apparently found the power to require that the new state constitutions recognize the actions taken by the Federal government against slavery.41 The president was in good historical company in issuing a proclamation of amnesty. President George Washington himself had issued an amnesty proclamation in the Whiskey Rebellion, on July 10, 1795.42 Washington was generally careful to cite the source of his authority in the Constitution for his actions, but in this document he did not. He did not call it an amnesty, either; he referred instead to a “general pardon” for offenses described in the proclamation. Presumably that made it clear that the proclamation was based on the pardoning power in Article II, section 2 of the Constitution. The term “amnesty” does not appear in the Constitution, but Lincoln needed it badly. According to TheFreeDictionary.com, “In theory, an amnesty is granted before prosecution takes place, and a pardon after.”43 Although Lincoln revealed his confidence in his constitutional interpretation and his accustomed insistence on maintaining presidential

40

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 7:50–51.  Ibid., 7:50–52. 42  James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents (n.p.: Bureau of National Literature, 1897–1914), 1:181. 43  See TheFreeDictionary.com for “amnesty.” I consulted it on August 31, 2016. 41

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power, Congress had offered aid he could not turn down.44 In the Second Confiscation Act, of July 17, 1862, Congress had authorized the president to offer “to persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare.”45 Lincoln was very familiar with the text of the law, and had offered Congress a long letter explaining his objections to certain parts of it when it was passed – and allowed to become law by the president himself – back in 1862. He had no objections, apparently, to the parts of the law dealing with amnesty. He would issue his amnesty and mention, after first asserting the president’s power to pardon, the authorization by Congress of July 17, 1862. Congress had perfected language covering precisely the situation of the Civil War. Lincoln was to enumerate “exceptions” and prescribe “conditions,” just as Congress had provided. Who could resist such a gift? But for Lincoln such a proclamation of pardon would not be enough. Since the real purpose of the Proclamation of Amnesty and Reconstruction of December 8, 1863 was not individual mercy but state formation, that would for certain depend on the Congress in the end, as it had constitutional control of the representation in its body. Suddenly, the guarantee of a republican form of government looked useful again. That article had not been embraced by the president since July 4, 1861, but he remembered it and its broad possibilities now. “It is also proffered that if, in any of the States named, a State government shall be, in the mode prescribed, set up, such government shall be recognized and guarantied [sic] by the United States and that under it the State shall, on the constitutional conditions, be protected against invasion and domestic violence,” he said. Perhaps the commander-in-chief could do the guaranteeing against violence, but “recognition” lay ultimately with Congress, which would have the authority to admit representatives from the state to its body or not.46 Lincoln seems to have liked the idea of guaranteeing the republican future for the former Confederate states, and he certainly wanted to require obedience to the Emancipation Proclamation. How could he 44

 See Brian R. Dirck, Lincoln and the Constitution, 121 (“presidents have a strong tendency throughout American history to jealously guard the prerogatives of the executive branch, party affiliation and other political considerations be damned – and Lincoln was no exception”). 45   Quoted in Robert W. Burg, “Amnesty, Civil Rights, and the Meaning of Liberal Republicanism, 1862–1872,” American Nineteenth Century History 4 (2003), 32. 46  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 7:50–51.

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not recognize the constitutional impossibility or implausibility in light of American history of demanding that emancipation become an essential sign of a republican form of government? The enterprise was highly implausible and would never pass the scrutiny of court review on the principle that long usage and recognition by all the government departments were good arguments for the constitutionality of slavery. The abolition of slavery had obviously not been a necessity of a republican form of government for the previous seventy-five years of the existence of the United States. At the time he wrote the Proclamation of Amnesty and Reconstruction, in fact, there were states still in the Union which would not by such a standard qualify as republican in form. In the case of the Dred Scott decision back in 1857, Lincoln had himself recognized that longtime government usage was itself a viable form of recognition of constitutionality. One of the objections to the Taney decision that Lincoln had raised was that it defied “the steady practice of the departments throughout our history” in their recognition of the authority of Congress to prevent the expansion of slavery into the territories (in the Northwest Ordinance, for example). To be sure the fact of civil war made slavery seem incompatible with a republican form of government. Stated rather differently, that was in fact a position taken often by Republicans in editorials and on the stump during the Civil War: If slavery survived the war it would only lead to more wars. The best Lincoln could do for the moment was to require an oath to obey the Emancipation Proclamation as a term of presidential pardon for individuals in rebellious states. Those oath-bound individuals, in turn, could establish a new state government, “which shall be republican, and in no wise contravening said oath.”47 Despite precedent in the administration of George Washington, Lincoln’s amnesty proclamation was bold and novel enough to sew confusion in the judiciary. An important case in point was that of the so-called Chapman pirates. Under a Confederate letter of marque (a commission as a privateer) several men in the ship J. M. Chapman sought to capture a ship carrying gold from San Francisco to the East. US Customs officers arrested them, and the leaders were convicted in federal court in California, under the Confiscation Act of July 17, 1862, of giving aid and comfort to the enemy. After the issuance of Lincoln’s amnesty proclamation of December 8, 1863, one of the prisoners sought release by taking the amnesty oath, and a federal judge indeed released him early in 1864. Lincoln never meant the proclamation to apply to military prisoners, and 47

 Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 7:55.

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on March 26, 1864, he altered the proclamation to exclude persons “in military, naval or civil confinement or custody.”48 A constitutional amendment ending slavery in the United States would solve all the problems encountered in the strained plan of reconstruction of December 8, 1863, but the idea of passing a constitutional amendment during the war remained ludicrous. It is little wonder Lincoln was slow to endorse the Thirteenth Amendment. Amendments to the Constitution were not going to win the war; only armies could do that. And until the work of the armies was successful, there could be no amendments. It was by no means clear in the early summer of 1864, when Lincoln was faced with adopting the cause of a Thirteenth Amendment, that the North was going to win at all, let alone any time soon. Hence, he was reluctant to take up the cause – until politics forced his hand. Constitutional timidity about amendments did not hold Lincoln back from endorsing the proposed Thirteenth Amendment to the Constitution, which Congress debated in the early spring of 1864. Lincoln had by that time offered up a bevy of them himself. Michael Vorenberg’s definitive account of the rise and passage of the Thirteenth Amendment offers the best interpretation of this mysterious period of Lincoln’s presidency. As Vorenberg argues, the third-party candidacy of John C. Frémont moved the president to endorse the amendment, the centerpiece of Frémont’s party. As was usually the case with third-party movements in the United States, the Radical Democrats, as the Frémonters called themselves, were simply coopted by the Republicans who, about a week after the third-party convention, then adopted the amendment as a plank of their platform – at the president’s bidding.49 It simply had to be done: A permanent split in the Republican party offered the Democrats the only way they could win the presidential election. Yet the Thirteenth Amendment was idealistic too, and it would be a mistake to take all the idealism out of the history of the movement. What is needed is some new piece of evidence to jolt us into recognition of Lincoln’s vision – something to remind us that there really was an

48

 Robert J. Chandler, “The Release of the Chapman Pirates: A California Sidelight on Lincoln’s Amnesty Policy,” Civil War History 23(June 1977), 129–143; Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 7:269–270. 49  Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment, 115–127. For further refinement on this point, see Vorenberg, “‘The Deformed Child’: Slavery and the Election of 1864,” Civil War History, 47 (September 2001), 240–257.

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idealist behind the foot-dragging presidential candidate and politician who finally endorsed the Thirteenth Amendment.

The Argüelles Case: A New Narrative from the History of the Lincoln Administration A little-known incident indicates the quiet direction of Lincoln’s constitutionalism, and the clue to recovering the remarkable event lies in, of all places, the Democratic platform of 1864. There the Democrats railed against Lincoln for his “denial of the right of asylum.” That was a reference, recognizable to all political activists in that election summer of 1864, to the Argüelles case, briefly mentioned in Chapter 4. José Augustín Argüelles was a Spanish lieutenant-colonel acting as the lieutenant-governor of Colón, a district in the interior of Cuba. In 1863, Argüelles confiscated 1,105 Africans, recently disembarked from an illegal slave-trading ship. The lieutenant-colonel was regarded as diligent in confiscating the Africans, but most often island officials turned a blind eye to the international slave trade. In the case of these 1,105 Africans the ship on which they travelled was somehow conveniently never identified.50 The captain general of the island, a man named Domingo Dulce, had a reputation for zeal in ending the slave trade and enforcing the laws against it. Indeed Dulce is identified by Spanish and Cuban historian Hugh Thomas as an “abolitionist.”51 The British minister in Washington commended the work of Captain General Dulce in a memorandum written to Secretary of State William H. Seward on February 4, 1864: The present Captain General of Cuba has acted in good faith in carrying out the treaty obligation of Spain for the suppression of the slave trade . . . The result has been that the number of slaves introduced into Cuba within the twelve months ending the 30th of September is estimated at from seven to eight thousand, as compared with eleven thousand two hundred and fifty four, the number introduced in the corresponding twelve months of the preceding year. 50

 This narrative of a case previously without narration in the Lincoln literature is based mostly on newspaper sources from the spring and summer of 1864. The most important of these is the New York Herald of May 23, 1864, which reproduced most of the documents then available on the incident. I also used Louis Fisher, “Extraordinary Rendition: The Price of Secrecy,” American University Law Review 57 (June 2008), 1405–1451; William G. Weaver and Robert M. Pallitto, “The Law, ‘Extraordinary Rendition,’ and Presidential Fiat,” Presidential Studies Quarterly 36 (2006), 102–108; and John Yoo and Minn Chung, “Transferring Terrorists,” 79 Notre Dame Law Review (2004), 1183. 51  Hugh Thomas, Cuba: The Pursuit of Freedom (London: Eyre and Spotswood, 1971), 248.

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This diminution in the Cuban slave traffic would be satisfactory if it were not that it is mainly owing to the exertions of one individual alone – General Dulce . . . who, it must be borne in mind, is liable to be removed at any moment, when, in all probability, the traffic would resume again its wonted vigor. General Dulce complains bitterly of the want of power conferred upon him, and of the inadequacy of the provisions of the Spanish penal code for suppressing the Cuban slave trade.52

Dulce may have been an abolitionist, but Argüelles was not. The Spanish government rewarded Argüelles $15,000 for the rescue. He pocketed his reward and then in collaboration with the curate of Colón, a priest who kept the local vital records, Argüelles claimed that 141 of the Africans had died in custody. The curate faked the death records. Then Argüelles sold the 141 Africans for $700–750 each. That totals at least $98,700. Argüelles then fled, with his wife and his ill-gotten gains, to New York City to claim asylum from arrest by the Spanish government. Captain General Dulce requested the return of Argüelles to Cuba, but the United States had no extradition treaty with Spain and could not therefore return him. Nonetheless Seward ordered the US Marshal in New York City, a man named Robert Murray, to arrest Argüelles anyway, and then they packed him aboard a vessel named the Eagle and shipped him to Havana. Our best source for the inner workings of the Lincoln administration is the diary kept by the Secretary of the Navy, Gideon Welles. And here is his remarkable entry on this case: Friday, May 20, 1864. The recent arrest of a Spaniard (Arguellis) who was in New York, and who was abducted, it is said, by certain officials under the instructions or by direction of the Secretary of State is exciting inquiry. Arguellis is accused of having, in some way, participated in the slave trade. But if the assertion be true, we have no extradition treaty with Spain, and I am therefore surprised at the proceeding. There is such hostility to the slave trade that a great wrong may perhaps be perpetrated with impunity and without scrutiny, but I hope not. Nothing has ever been said in Cabinet on the subject, nor do I know anything in regard to it, except what I see in the papers. Mr. Seward sometimes does strange things . . . He knows that slavery is odious and all concerned in slave traffic are distrusted, and has, it seems, improved the occasion to exercise arbitrary power, expecting probably to win popular applause by doing an illegal act. Constitutional limitations are to him unnecessary restraints. Should there be an investigation instituted and mere denunciation of the act, the President will be called upon to assume the responsibility, yet I am persuaded

52

 Richard Lyons to William H. Seward, February 4, 1864, quoted in New York Herald, May 23, 1864.

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he has nothing to do in this affair beyond acquiescing without knowledge in what has been done. Could the abduction by any possibility be popular, Mr. S. expects it to inure to his credit.53

Later, on June 6, Welles used even stronger language to denounce the arrest of Argüelles: I am not comfortable about the extradition, or rather the abduction, of Arguelles, the Spaniard. The act shocks me, and the Administration will justly be held accountable. Some of us who knew nothing on the subject will have to share the responsibility. I knew nothing of the subject, nor that there was such a man, until after the wrong had been committed and the man was on his way to Cuba. Marshal Murray then informed me, and said he was here to escape the grand jury  .  .  . The arrest is an arbitrary and unauthorized exercise of power by the Secretary of State.54

Even the keenly antislavery Secretary of the Treasury, Salmon P. Chase, opposed the arrest of Argüelles. Lyman Stickney wrote Chase on May 25, 1864, saying, “The newspapers report you to have taken decided ground against the arbitrary arrest of Arguelles. I think you did well to assume that open attitude. No matter how culpable the individual, in all countries where the common law rules, the people revolt against its violation to restrain human liberty. The Latin might submit, not the Anglo-Saxon.”55 After Argüelles’s arrest, his wife tried the possibilities of Anglo-Saxon common law and apparently requested a writ of habeas corpus before a court in New York City. The courts in the state system in New York were dominated, as were New York City politics in general, by Democrats. A warrant was put out for the arrest of US Marshal Murray, who had arrested Argüelles, and others involved. The action in a law court let the word out to the press. That occurred in late May 1864. Murray and the others were wanted for kidnaping. No one even in Lincoln’s cabinet, except for the Secretary of State, knew about the arrest until it had already been made and Don Augustín Argüelles was working on the chain gang in Cuba. Argüelles was sentenced to nineteen years of hard labor. Marshal Murray fought to transfer his kidnaping case to federal court, and eventually the case was simply dropped.56 53

 Diary of Gideon Welles, Secretary of the Navy under Lincoln and Johnson, 3 vols. (Boston: Houghton Mifflin, 1911), 2:36. 54  Ibid., 2:45–46. 55  Lyman D. Stickney to Salmon P. Chase, May 25, 1864, Papers of Salmon P. Chase, Library of Congress, microfilm edition, reel 33. 56  Louis Fisher, “Extraordinary Rendition: The Price of Secrecy,” 1411.

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Context and Interpretation of the Argüelles Case These events were being played out in a presidential election year, 1864, and the Argüelles case was not the sort of thing that politicians, hungry for last-minute issues to exploit, were able to ignore. The exploitation of this constitutional issue by the political parties of the day presents a record nothing short of astonishing. Most Republicans had their doubts about the legality and propriety of the denial of asylum to Argüelles – hence the attitude displayed in the diary entries of Gideon Welles. Even in the New York Tribune, Horace Greeley’s newspaper, which was ardently antislavery and pro-Republican, editors expressed doubts about the propriety of the arrest. After describing the terrible nature of Argüelles’s crimes and denouncing the corrupt attitude of Cuban officials on the whole toward suppression of the slave trade, the Tribune editors ended their article on the case by saying, “And yet – and yet – we should greatly prefer to see these matters regulated by law than by executive dictum.”57 At exactly the moment the Argüelles case was being for the first time revealed in the press, the Radical Democrats were meeting in Cleveland to nominate John C. Frémont for president. The Frémont movement arose among Republicans unhappy with Lincoln’s leadership and mostly unhappy because he did not move fast enough and vigorously enough against slavery. Their principal platform plank, declared at their convention on May 31, 1864, was a call for a constitutional amendment to abolish slavery forever in the United States. But the opportunistic Cleveland convention, even more desperate for issues than the Democrats, decided also to refer to the Argüelles case in the seventh article of their platform, in language no one in that election summer could mistake: “That the right of asylum, except for crime subject to law, is a recognized principle of American liberty; that any violation of it cannot be overlooked and must not be unrebuked.”58 This is an astonishing plank to be found in the platform of antislavery radicals (Wendell Phillips, for example, flirted with the Frémont movement and sent a letter to the convention, as did other famous antislavery radicals). Such contradictions did not go unnoticed by the eagle-eyed partisan press of the era. The Wellsboro Agitator, a Republican newspaper in northern Pennsylvania, noted that its readers would “have some difficulty 57

 New York Tribune, May 24, 1864.  New York Herald, May 31, 1864.

58

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in reconciling the views and sentiments” expressed in the Frémont platform “with the policy and General Orders promulgated by the same individual in Missouri in 1861.” Frémont had created a sensation then with an emancipation proclamation issued on his own. But now Fremont had in view the return of Arguelles to Cuba, in his condemnation of “arbitrary arrests” and violation of the right of asylum. We have seen the papers in the Arguelles case, not yet made public, and may, therefore, form something of an intelligent opinion as to the merits of the case. The demand for the return of Arguelles was made upon the ground that he was engaged in the slave trade, proof of which was made to the satisfaction of all parties concerned . . . Now, according to the law of nations, Arguelles is guilty of piracy, and therefore entitled to no right of asylum here or elsewhere – a pirate is an outlaw.59

For all that seems disillusioning in the callous willingness of political parties, conservative Democrats and radical Frémonters alike, to exploit this incident, it can be said that for the immediate participants in the rendition it presents a rare historical moment of almost pure humanitarianism. All of them emphasized the humanitarian quality of their actions. Unlike the Emancipation Proclamation itself, the rendition of José Augustín Argüelles could not be and was not justified as a military necessity. In fact, it was no help to winning the war at all. The Confederacy was not dependent on the international slave trade; they outlawed it just as the United States did, and Confederate representatives in Europe called attention to the fact. The arrest and rendition also distracted busy men in government, and the men of affairs working on the case recognized that. Lord John Russell, the British foreign secretary, asked Secretary of State Seward to request President Lincoln to write to the government in Spain urging them “to amend laws governing the slave trade into Cuba.”60 There followed something that one does not often see in diplomatic correspondence – a thank-you. Lord Russell thanked Seward for asking the president at a time when Lincoln was “occupied with other things.”61 The president directed Seward to order the United States representative in Spain, Gustav Koerner, to request of the Spanish ministry that they work to change the laws governing the slave trade in Cuba.62 59

 Wellsboro Agitator, June 22, 1864.  Richard Lyons to William H. Seward, [?]February 4, 1864, quoted in New York Herald, May 23, 1864. 61  Ibid. 62  William H. Seward to Gustav Koerner, February 6, 1864, and Koerner to Minister of State, February 27, 1864, quoted in New York Herald, May 23, 1864. 60

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Diplomats in the nineteenth century were hard men, paid simply to protect their country’s interests. The tone of this diplomatic correspondence is unusual. Because of an obscure provision of Spanish law described by historians of the case as “curious,” it required the presence of Argüelles in Cuba to bring about the actual freeing of the Africans he had sold into slavery in the interior.63 Thomas Savage, the American representative in Havana, assured the secretary of state on March 27, 1864, of the “humane object” of returning Argüelles to Cuba, for otherwise the law made it difficult to free the Africans.64 Gabriel Tassara, the Spanish representative in Washington, told Seward that “exceptionable measures” were needed because the “interests of humanity” were “at stake.”65 Captain General Dulce thanked Seward when Argüelles was delivered to Cuba “for the service which he has rendered to humanity by furnishing the medium through which a great number of human beings will obtain their freedom whom the desertion of the person referred to would have reduced to slavery. His presence alone in this island a very few hours has given liberty to eighty-six.”66 When Maryland Senator and Democrat Reverdy Johnson got a resolution through the Senate demanding that the US Secretary of State explain the Argüelles rendition, Seward replied: “a nation is never bound to furnish asylum to dangerous criminals who are offenders against the human race.”67 Humanitarianism was their only excuse, as there was no law for what they were doing. In fact, the quotation from Seward above, talking about offenses against the human race, was preceded by a statement of Seward’s own doubts about the legalities: “Although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government, by surrendering, at its request, one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals.”68 In Havana, Savage admitted that there was no law 63

 William G. Weaver and Robert M. Pallitto, “The Law, ‘Extraordinary Rendition,’ and Presidential Fiat,” 106. 64  Thomas Savage to William H. Seward, March 27, 1864, quoted in New York Herald, May 23, 1864. 65  Gabriel Tassara to William H. Seward, April 5, 1864, ibid. 66  John G. Nicolay and John Hay, Abraham Lincoln: A History, 9:47. 67  Ibid. 68  Ibid., 46–47.

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“authorizing the rendition.”69 Tassara admitted it when he said that an exception needed to be made.70 Even the conscienceless New York Herald said simply, “in the Arguelles case the administration is morally, if not legally, right.”71 The Argüelles case opens a new avenue for interpretation of Lincoln’s constitutional ideas. As we have seen, they were exploratory, genuinely innovative, and generally governed by humanitarian considerations, not by mere considerations of power. Up to 1864, Lincoln had established a record of constitutional exploration and discovery. He discovered (or invented), as Allen Guelzo argues, the “war powers,” as they came to be called – those things the executive branch must do by analogy with executive power in other government systems in time of war.72 In the case of the Sioux uprising of 1862, he exploited the pardoning power to its fullest – well beyond mere criminal matters to political questions of the curious legal status of Native Americans as separate dependent nationals. He continued that humanitarian exploration of the pardoning power in the Proclamation of Amnesty and Reconstruction of December 8, 1863, beginning to construct a republican nation on the strength of pardoning willing Confederates.73 Obviously he could not personally pardon the Confederacy one citizen at a time, as in the case of the Sioux, laboriously writing out each Southerner’s name on White House stationery, and he needed the guarantee of a republican form of government as well. Using adventurous interpretation, Lincoln explored the powers to be found in Article IV, section 4, in the guarantee of a republican form of government to the states – also a key part of his Proclamation of Amnesty and Reconstruction.74 These explorations had to do both with humanitarianism and with national power. The laws of war embodied in General Orders No. 100 even usurped congressional authority in the pursuit of humanitarian restraints in the war. In short, the vast exploration of the pardoning power and of the new guarantee of a republican form of government, plus the codification of international

69

 Thomas Savage to William H. Seward, March 27, 1864, in New York Herald, May 23, 1864. 70  Gabriel Tassara to William H. Seward, April 5, 1864, quoted ibid. 71  New York Herald, May 24, 1864. 72  Allen Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America (New York: Simon & Schuster, 2004), 125–127. 73  See esp. Herman Belz, Reconstructing the Union: Theory and Policy during the Civil War, 159–160. 74  Ibid., 160.

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laws of war in American law, saw the resumption of the trajectory of Lincoln’s pre-war constitutional thought. Interest in the Argüelles case has arisen outside of the historical profession and in the realm of present-day constitutional controversy – in particular because of the question of “extraordinary renditions,” that is, to use historian Louis Fisher’s definition, the seizure of persons in the US by presidential authority and then transporting them to foreign jurisdictions for interrogation and perhaps torture. The case was uncovered after the modern-day conflicts over the Central Intelligence Agency’s policies on capturing suspected terrorists and sending them to secret bases in foreign countries for interrogation.75 Louis Fisher and other constitutional scholars agree that the American tradition of requiring congressional authority or a treaty for the arrest and transfer from the US of an individual to a foreign jurisdiction (called extradition, if the foreign government requests it) was for the first time interrupted, as were many constitutional traditions, by the Civil War. That interruption of tradition came in the Argüelles case. Fisher, who is the Specialist in Constitutional Law at the Law Library of the Library of Congress, is the foremost expert on the constitutional question raised by the Argüelles case. He says, unequivocally, “For most of U.S. history, presidents had no independent or exclusive authority over extraditions and renditions. Congressional action was needed.”76 The precedents, stemming from George Washington’s and Thomas Jefferson’s days right up to the Civil War, were consistent – not in court cases but in opinions of attorneys general and presidents. In his analysis of the Argüelles case, Fisher dismisses Seward’s justification: “Secretary of State William H. Seward defended Lincoln’s action under the ‘law of nations,’ but Article I of the Constitution clearly gives that power to Congress.”77 The Constitution of the United States does recognize international law. Article I, section 8 gives Congress the power “to define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations.” It is true that the Constitution thus describes a congressional power, but it must be acknowledged that the framers contemplated the need to punish “offenses against the Law of Nations,” and they did not necessarily have to occur on the high seas. 75

 Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 47–71. 76  Louis Fisher, “Extraordinary Rendition: The Price of Secrecy,” American University Law Review 57 (June 2008), 1405–1451. The quotation is at 1406. 77  Ibid., 1411.

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Some of the protagonists in the Argüelles case were groping for some sort of justification in international law. Seward told the US representative in Spain, Gustav Koerner, that Spain had a treaty with Great Britain to suppress the slave trade, as did the US, but the US had “no treaty with Spain on the subject of the slave trade.”78 He added, the United States had “characterized it as piracy long before the treaty” with Great Britain. All sensed that if it were true that legislation were required for such renditions, then Congress ought to get busy and pass it. But the Argüelles case could hardly wait. As for Abraham Lincoln, it was not what Welles implied, namely that Lincoln would, despite having no direct responsibility for Seward’s action, have to take the blame for the destruction of the right of asylum. Instead, President Lincoln, in the end, stood by the arrest and rendition solidly and claimed principle in doing so in the most public of his public documents. In short, Lincoln went out of his way to lay claim to constitutional responsibility for the rendition of José Augustín Argüelles. This is significant. When historians first looked at the Argüelles case, they saw what the Lincoln administration did but they did not know that Lincoln had offered a public justification of it. They assumed, in the absence of such an explanation, that he simply had had Argüelles arrested under the president’s expanded war powers. But Lincoln knew war from peace, and he studiously and openly offered a different justification. He offered it in the president’s annual message to Congress. In his annual message of 1864 Lincoln stated flatly: “For myself, I have no doubt of the power and duty of the Executive, under the law of nations, to exclude enemies of the human race for an asylum in the United States. If Congress should think that proceedings in such cases lack the authority of law, or ought to be further regulated by it, I recommend that provision be made for effectually preventing foreign slave traders from acquiring domicile and facilities for their criminal occupation in our country.”79 When Secretary of State Seward pressed Lincoln for action in the Argüelles case, Lincoln had to think fast again, as he had done in the First Inaugural Address to justify saving the Union. Argüelles presented a case impeded from humanitarian solution by conventional thinking about the Constitution. If Argüelles were thought of as a slave-trade case and not

78

 New York Herald, May 23, 1864.  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 8:140.

79

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a case of extradition for a political offense – which, after all, it was not – the application of international law made more sense. Furthermore, the president needed to act fast to save the Africans from perpetual slavery. As in the case of suspending the writ of habeas corpus, to Lincoln’s way of thinking, reliance on the ordinary course of law in the courts – in this case, the courts of New York City – was not likely to produce justice or freedom. Juries had long been reluctant to convict slave traders in New York, and who was to say they would do so now? The fact of the conviction and execution under the Lincoln administration of the slave trader Nathaniel Gordon, ironically, militated against further successful prosecutions, for one of the deterrents had always been dislike of the death penalty, and after Gordon, the death penalty was a genuine possibility. Congress might willingly enough supply the necessary legislation in the Argüelles slave-trading case, but by then where would Argüelles be? The judge on the island had apparently ruled that Argüelles had to be present for process to continue.80 And while Congress acted, the slaves in Cuba would become hopelessly trapped in the clutches of sugar planters. So, to Lincoln’s way of thinking, the president had to act and must have the rightful authority to do so – this time, to be found in international law. The clue to Lincoln’s thinking lies in his description of the possible outcome of failing to act – otherwise, he said, people could come to the United States and set up shop as international slave traders. This was abhorrent to him. Lincoln had already denounced the international slave trade in his annual message to Congress of the previous year, December 1863. It was, he declared, an “inhuman and odious traffic.”81 Acting of necessity with speed and secrecy to seize Argüelles and transport him to Cuba to save the Africans from slavery threw the power to the president. Argüelles had come to New York City ostensibly to use his ill-gotten gains to establish a Spanish-language newspaper there.82 In other words, what President Lincoln did was to turn the Argüelles case into a slave-trading case rather than an asylum case. Argüelles’s appeal had little of the accustomed quality of asylum about it. Asylum was meant to protect political offenders, not criminal ones. The term is defined in Black’s Law Dictionary as “Protection of usu. political 80

 William G. Weaver and Robert M. Pallitto, “The Law, ‘Extraordinary Rendition,’ and Presidential Fiat,” 106. 81  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 7:36. 82  Appleton’s Annual Cyclopaedia and Register of Important Events (New York: D. Appleton, 1865), 362; New York Times, May 24, 1864.

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refugees from arrest by a foreign jurisdiction.”83 The Democrats as much as acknowledged that when they recalled the good old days when revolutionaries like Kossuth and Kostza could find safe haven in the United States. Argüelles was no Kossuth, and surely nearly everyone knew it. Argüelles was not a political refugee. He was closer to being a pirate than a political refugee. Lincoln either saw the case that way or was willing to make the case look that way in order to insure freedom for the slaves and to send Argüelles back to the chain gang. Had Argüelles been coming to the United States to establish illegal slave trading, it seems as though Lincoln would have been ready to act to prevent the occurrence. And the international law aimed at suppressing the slave trade was one part of the overall code of international laws long since acknowledged by the United States. Lincoln had a legitimate role in enforcing it, presumably. Thinking along humanitarian lines in the Lincoln administration was not novel in 1864. Indeed, it would be fair to interpret Lincoln’s action in the Argüelles case as a continuation of the administration’s record of enforcement of the laws against the international slave trade. Though often overlooked in histories of the Civil War and the Lincoln administration, the Republican record on the enforcement of prohibitions against the international slave trade was stellar. The administration gave the most startling notice of new management of slave-trade enforcement when US attorneys prosecuted Nathaniel Gordon as a slave-trading pirate and he received a sentence of hanging. After issuing a long proclamation that wasted little sympathy on Gordon, the president himself said there would be no pardon, only a two-week delay for the astonished slave trader to prepare to meet his Maker.84 Gordon died on the gallows on February 21, 1862, and slave traders everywhere were put on serious notice for the first time in all of American history.85 At the same time, William H. Seward was negotiating a new antislave-trade treaty with the British representative in the United States, Richard Lord Lyons, that had great potential for bringing more men like Gordon into court. The treaty was much celebrated at the time, but the Emancipation Proclamation quickly eclipsed it in fame.

83

 Brian A. Garner, ed., Black’s Law Dictionary, Eighth Edition (St. Paul, Minnesota: West, 2004), 135. 84  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 5:128. 85  For extended treatment see Ron Soodalter, Hanging Captain Gordon: The Life and Trial of an American Slave Trader (New York: Atria Books, 2006). Even the Taney Supreme Court refused to hear appeal of the conviction and death sentence (p. 196).

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The British were as pleasantly surprised with the attitude of the new American secretary of state under Lincoln as they had been with the unusual cooperation of Captain General Dulce in Cuba. Seward readily entered into negotiations for a new treaty in the early months of 1862, and a treaty (in fact, drafted by the tough-minded British) that put real teeth into the attempts to stop the traffic in slaves on the high seas was drafted and ratified successfully. Americans now acceded to search by foreign vessels readily, and British and American naval ships could seize vessels on the strength of suspicious furnishings: grated hatches rather than closed ones customary on merchant vessels, more casks for water than the crew needed, too many mess tubs, larger cooking boilers than the crew would need, and the telltale handcuffs and shackles for confinement. The treaty was aimed at empowering British ships that patrolled Cuban waters.86 It is simply a mistake to bring up the subject of the Argüelles case as a possible precedent in modern-day discussions of extraordinary rendition. President George W. Bush’s defenders themselves did not do so. Constitutional law professor John Yoo, for example, justified extraordinary rendition strictly as a war power under Article II, section 2 of the Constitution. It does not, even in its defenders’ minds, have anything to do with peaceful extradition. The critical turn for Yoo is to define counter-terrorism after 9/11 as war, and not criminal law enforcement.87 The Argüelles case occurred while a war was going on, all right, but in fact had absolutely nothing to do with the war. Abraham Lincoln did not claim his power to send the prisoner to Cuba for trial and punishment under the executive’s war powers – of which, everyone agrees, Lincoln took a very broad view.

“Human Rights” The justification claimed by Lincoln’s administration was international law and the punishment of enemies of the human race – not enemies of the US. Lincoln used the term “enemies of the human race.” Seward used the term “dangerous criminals who are offenders against the human race.” 86

 The treatment of the treaty in Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (New York: Oxford University Press, 2001), 190, is excellent and I follow it closely here. For the provisions of the treaty see the Wikipedia article under Lyons–Seward Treaty of 1862 and cross-references to Avalon Law, accessed August 31, 2016. 87  John Yoo and Minn Chung, “Transferring Terrorists,” 1183.

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The rendition of Argüelles had nothing to do with war and everything to do with humanitarianism. But the rendition was a meaningful event. Lincoln’s constitutional thinking was heading toward a humanitarian Constitution, not one entirely preoccupied with reasons of state. Or we might say, in other words, Lincoln was beginning to usher in the new era of human rights. The American Civil War was the dawning of the age of human rights in this country, though use of the term then was sporadic and its meaning hardly as weighted as in modern times. There are other sources for this idea in Lincoln’s writings. Less than three weeks after the promulgation of emancipation on January 1, 1863, Lincoln was called upon to answer a public letter containing resolutions of support for the Union cause sent by workingmen of Great Britain.88 Many of them were unemployed because of the Union blockade of the Confederacy, which crippled Britain’s textile industry, but they wanted the president to know that they supported the North’s cause anyway. Lincoln replied: I know and deeply deplore the sufferings which the workingmen . . . in . . . Europe are called to endure in this crisis. It has been often and studiously represented that the attempt to overthrow this government, which was built upon the foundation of human rights, and to substitute for it one which should rest exclusively on the basis of human slavery, was likely to obtain the favor of Europe . . . Under these circumstances, I cannot but regard your decisive utterance upon the question as an instance of sublime Christian heroism which has not been surpassed in any age or in any country. It is, indeed, an energetic and reinspiring assurance of the inherent power of truth and of the ultimate and universal triumph of justice, humanity, and freedom.89

This document is not a source commonly consulted in seeking Lincoln’s constitutional ideas, but there is a link here to what he thought was the president’s duty in upholding human values under international law in the Argüelles case about two years later. “Human rights” is a commonplace term today, but it was not so commonly used in the nineteenth-century United States.90 Lincoln likely knew it from the abolitionist movement, and in the United States in particular, 88

 Don H. Doyle, The Cause of All Nations: An International History of the American Civil War (New York: Basic Books, 2015), 245, has the best contextualized treatment of this somewhat neglected document. 89  Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 6:64. 90  George Athan Billias, American Constitutionalism Heard Round the World, 1776–1989 (New York: New York University Press, 2009), 20, 385–386n.

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its use stemmed from one abolitionist, William Lloyd Garrison. Garrison used the very term in the now famous first issue of the Liberator, the abolitionist newspaper he founded in Boston on January 1, 1831. In the lead editorial explaining his purpose Garrison said, by way of explaining that his newspaper would not adhere to any political party, “I shall not array myself as the political partisan of any man. In defending the great cause of human rights, I wish to derive the assistance of all religions and all parties.”91 When Garrison wrote that, Lincoln was only twenty-two years old and by no stretch of the imagination an abolitionist, but when, as president, Lincoln repeated the term thirty-four years later, he likely knew what kind of language he was using. He was a conscious master of words. Lincoln was aligning himself with new constitutional doctrine, infused with an ideal of human rights to oppose enemies of the human race. At the very least, it proves that Lincoln’s constitutional thinking was an ongoing process. He was not about to give up innovative thinking with the end of war and the end of pleas of military necessity and the resumption of the accustomed restrictions of the peacetime Constitution. It too was a matter of interpretation, and Lincoln was a lifelong broad constructionist. The lure of humanitarianism for Lincoln, for all his past discomfort with abolitionists, was persistent and strong. No longer under pressure to justify the war for the Union, Lincoln could return comfortably and confidently to his old vision of the Constitution of the United States as a fulfillment of the Declaration of Independence and human rights.

91

 The Liberator, January 1, 1831.

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Index

Alien and Sedition Acts, 80 Altschuler, Glenn C., 11 Amar, Akhil Reed, 179 amendments Lincoln’s proposals for, 176–80 proposals for, 161, 162, 163, 166, 170. See also convention of the states American Bastile, 157 amnesty, 188 Appleton’s Annual Cyclopaedia, 22 Argüelles, José Augustín, 168, 169, 192–94 Ashley, James, 181 Aspinwall, William H., 129 asylum, right of, 168, 169, 195–203 Baker, Jean H., 97, 98, 101, 113 Barlow, S. L. M., 124, 134 Bates, Edward, 151 Bellows, Henry Whitney, 41 Bernstein, Iver, 97 Bigler, William, 161 Bill of Rights, 154 Binney, Horace, 147–55 Birchard letter, 64, 65 Black, Jeremiah, 99, 170 Blair, Montgomery, 45, 46, 104 Blair, William A., 108, 185 Blumin, Stuart M., 11 boosterism, 12, 28, 33, 35 bounty system. See mobilization Brown, John, 117 Brownson, Orestes, 180

Buchanan, James, 161 Buckalew, Charles, 68, 69 Bullitt, John C., 152 Burr, C. Chauncey, 102, 144 Butler, Benjamin F., 117 Calhoun, John C., 161 Capen, Nahum, 131 capitalism, 13, 23 Carrington, Henry C., 167 Cartwright, Samuel A., 141 Caucasian. See New York Day-Book Chase, Salmon P., 23, 65, 75, 76, 194 and financing the war, 13–14, 17 civil liberties, 66, 80, 94, 112, 121, 122, 129, 157. See also habeas corpus as campaign issue, 115, 126–27, 160 Vallandigham case and, 90, 92, 93 Clark, Thomas M., 132 Clay, Henry, 51 Cleveland, Ohio, 43 Clymer, Hiester, 68, 162 Cochran, Thomas E., 54 commutation, 27, 28, 122, 157, 158 Confiscation Act, Second, 189 Conkling letter, 64, 65, 186 Connecticut, 54 elections of 1863 in, 61, 62, 65, 87–90 conscription, 122, 123, 160. See also mobilization Democratic ideology and, 155–60

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Constitution, US, 11, 80. See also amendments Abraham Lincoln on, 172–205 amendments to. See Second Amendment; Thirteenth Amendment Article I, section 8, 156, 187, 199 Article I, section 9, 148 Article II, section 2, 184, 188 Article IV, section 4, 181, 189, 198 Article V, 162, 165 Article VI, section 2, 165 and the Democratic party, 136–71 pardoning power under, 182–85, 187–92, 198 on war, 174 convention of the states, 139, 160–66 Cooke, Henry D., 21, 24 Cooke, Jay, 12–24 Copperheads. See Peace Democrats Corning letter, 63, 64, 65, 66 Cox, Samuel S., 92, 93, 108, 109 Croly, David G., 108 Cuba, 192, 196, 197 Curtin, Andrew Gregg, 30, 40, 41, 125 Curtis, George Ticknor, 68, 141 Davis, David Brion, 130 Davis, Jefferson, 112 Democratic nominating convention of 1864, 166 Democratic party myth, 66, 67, 74–84 Democratic platform of 1852, 142 of 1860, 142 of 1864, 117, 126, 134, 143, 160, 161, 165 of 1868, 143 Democratic platform of 1864, 166–71 Dickinson, Anna, 43 Dirck, Brian R., 139, 174 Douglas, Stephen A., 83 Douglass, Frederick, 180 Dred Scott decision, 105, 139, 140, 141, 190 Dubuque, Iowa, 38–39 Dulce, Domingo, 192, 193, 197 economic issues, 122, 156, 158, 159, 160, 169 Elections congressional, of 1846, 172 in Illinois in 1858, 56, 83 of 1862, 46–61 65, 83, 84 of 1863, 61–69, 86–96, 125

of 1864, 64, 86, 107, 108, 114–24, 134 of 1868, 121, 143 Emancipation Proclamation, 45–49, 61, 120, 134, 178, 186, 189 as issue in elections of 1862, 56, 65 McClellan on the, 129 Erie, Pa., 42 Escott, Paul D., 96, 101 Ex parte Merryman, 145 Federalist party, 138, 144, 161 Fessenden, William Pitt, 57 finance, 12–24, 25 Fisher, Louis, 199 Fisk and Hatch, 22 Foner, Eric, 74 Foy, Joseph S., 130 Franklin, Benjamin, 17 Fredrickson, George M., 39, 68, 111 Frémont, John C., 86, 191, 195, 196 Fry, James B., 28 Fugitive Slave Law, the, 117 Gallatin, Albert, 132 Gallman, J. Matthew, 31, 39, 40 Garrison, William Lloyd, 205 General Orders No. 100, 187, 198 German-Americans, 21 Germany, 19 Gordon, Nathaniel, 201, 202 Grayson, Frederick W., 21 Greeley, Horace, 60, 195 Gross, Charles Heber, 148 Guelzo, Allen C., 46, 47, 198 habeas corpus, 119, 144–55, 155, 160, 175 Halleck, Henry W., 187 Hallet, Samuel, & Co., 18 Hamilton, Alexander, 156 Harrisburg, Pa., 35–38 Hartford Convention, 138 Herndon, William H., 174 Holt, Joseph, 182 Holt, Michael F., 25, 28, 57, 87 Horton, Rushmore G., 101, 105 Howe, Daniel Walker, 96, 98 Hughes, Francis, 26 Hughes, John, Archbishop, 159

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Index 209 human rights, 197, 198, 203–5 Hunt, Washington, 163 Illinois, 52, 53 congressional elections of 1846 in, 172 elections of 1858 in, 56, 83 elections of 1863 in, 65 Indian war., 182–85 Ingersoll, Edward, 148, 153 international law, 185–87, 199 Iowa, 54 Jackson, Andrew, 151, 153, 155 Jackson, Tatlow, 148, 152 Jefferson, Thomas, 77, 81 Johnson, Reverdy, 141, 145, 147, 197 judiciary, 156 Kennedy, William, 148 Kentucky Resolutions, 80, 105, 142–44 Koerner, Gustav, 196, 200 Kossuth Louis, 169 Lamberton, C. L., 162 laws of war, 184, 186, 187, 198 Lawson, Melinda, 13, 19 Lieber, Francis, 69, 187 Lincoln, Abraham Annual Message to Congress of, 1862, 178–80 on Article IV, section 4 of U.S. Constitution, 181, 189, 198 and conscription, 123, 156 election to Congress in 1846, 172 in elections of 1858, 56, 83, 98, 141 in elections of 1862, 46, 49, 50, 55, 56, 57, 58, 59, 60, 61, 84 in elections of 1863, 61–69 in elections of 1864, 64 Emancipation Proclamation of, 45, 61 first inaugural address of, 177 on human rights, 203–5 and international slave trade, 192–94, 201–3 on laws of war, 184, 186 and Mexican–American War, 60, 172–75 on pardoning power, 182–85, 187–92, 198 and no party ideal, 51 Proclamation of Amnesty and Reconstruction of, 187–92

and proposals to amend US Constitution, 176–80 and race, 83, 98 and Thomas Jefferson, 81 on U.S. Constitution, 172–205 Long, David E., 107, 108 Lowrie, Walter H., 157 loyal opposition, 25, 66, 82, 123, 124, 135 idea of, 69–74, 117 loyalty, doctrine of, 68 Lyons, Lord Richard, 202 Mahony, Dennis A., 38, 155–60 Maine, 54 Marble, Manton, 70, 121, 133, 134 Marshall, John, 149, 154 Marshall, John A., 157 Martins, Theodore, 105 Maryland, 126, 127 Massachusetts, 54 Masur, Louis P., 180 McClellan, George B., 42, 96, 114, 115, 124–35 McKitrick, Eric, 10 McPherson, James M., 86 Mexican–American War, 4, 58, 60, 139, 172–75 Michigan, 54 Minnesota, 54, 182 Minnesota Indian war, 198 miscegenation, 107–14 mobilization, 24–39 Montgomery, John T., 149 Morse, Samuel F. B., 111 Murray, Robert, 193, 194 Myers, Isaac, 148, 150 New Hampshire, 62, 63 New Jersey, 54 New York, 54, 114, 123 New York City, 103, 104, 107, 194 New York City draft riots, 26, 27, 115, 123 New York Day-Book, 81, 99–105, 140, 141 New York Evening Post and convention of the states, 164–65 New York Herald, 75, 78, 88, 89, 90, 94, 106, 198 and convention of the states, 163, 164 New York World, 42, 69, 108, 110, 121, 130, 143 and idea of loyal opposition, 69–74

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210

Lincoln and the Democrats

newspapers, 15, 20, 42, 43, 59 and financing the war, 14, 19–23 in campaign of 1864, 113, 134 Nicholas, S. S., 145, 148 no party ideal, 46–61, 66, 68, 70. See also nonpartisanship nonpartisanship, 14, 45 in financing the war, 14, 15, 21, 23 in mobilization, 25, 30, 31–33, 34, 36 of Sanitary Fairs, 40–44 Oakes, James, 130 Ohio, 114 elections of 1862 in, 47, 54 elections of 1863 in, 61, 62, 63–65, 87, 90–93 Old Guard, 102, 144 Opdyke, George, 27, 28 Oregon, 141 Palmer, John M., 53 Parker, Joel, 40, 41, 147 Peace Democrats, 25, 86–96, 164 Pearson, John J., 37 Pendleton, George, 91 Pennsylvania, 106, 114 elections of 1862 in, 54, 55 elections of 1863 in, 61, 62, 65, 87, 93–96, 125 Supreme Court of, 157 Pettingill, S. M. & Company, 22 Philadelphia, Pa., 31–33, 40, 41, 42 habeas corpus controversy in, 146–55 Phillips, Wendell, 195 Pittsburgh, Pa., 33–35, 42 political party system, boundaries of, 11, 24, 27 Polk, James K., 173 Poor Richard, 16, 17, 19, 23, 113 Pope, John, 182 Proclamation of Amnesty and Reconstruction, 187–92, 198 Pruyn, V. S. L., 170 Pugh, George, 91, 93 Randall, James G., 123, 148, 178, 179 Reconstruction, 99, 120, 121, 187–92 Republican Party, idea of, 74–76 Rhode Island, 54, 89 Richards, Leonard L., 47, 48, 96, 101 Russell, Lord John, 196

Sanitary Commission, US, 39–44 Sanitary Fairs, 40, 41–44 Savage, Thomas, 197 Schurz, Carl, 58, 59, 60 secession, 144, 175, 181 Second Amendment, 159, 167, 168 Seward, William H., 45, 62, 68, 79, 192, 196, 197, 199, 200, 202 Seward–Lyons treaty, 202 Seymour, Horatio, 114–24 Seymour, Thomas H., 62, 87, 88, 87–90, 95 Sherman, John, 57, 59 Silbey, Joel H., 54, 61, 137 Sioux Indians, 182, 198 slave trade, international, 168, 192–94, 200, 201–3 slavery, 102, 120, 121, 134, 178 McClellan and, 127–33 Society for the Diffusion of Political Knowledge, 111 Spain, 192, 193, 196 Stanton, Edwin M., 63 Stillé, Charles Janeway, 41 Stimson, Nathaniel B., 101 Stowe, Harriet Beecher, 129 Strong, George Templeton, 41 substitution, 28, 156, 158 Taney, Roger B., 139, 145, 147 Tappan, Arthur, 101 Tassara, Gabriel, 197 Thirteenth Amendment, 166, 170, 181, 191 Tilden, Samuel, 26 Trumbull, Lyman, 52, 53 Vallandigham, Clement L., 20, 65, 96, 119, 126, 146 in campaign of 1863, 63, 87, 90–93, 94 in campaign of 1864, 167 Van Evrie, John H., 99–105 and Dred Scott decision, 140, 141 and George B. McClellan, 131 Vermont, 54 Vorenberg, Michael, 161, 176, 191 voter turnout, 48, 50, 54, 56 Wakeman, George, 108 Wall, James, 87 War of 1812, 138, 144, 161

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Index 211 Washington, George, 188 Weber, Jennifer L., 25, 28, 86 Weed, Thurlow, 62 Welles, Gideon, 63, 193, 194 Wharton, George M., 148, 151 Whig party, 101, 139 and Mexican–American War, 172–75 Whiskey Rebellion, 188 white supremacy, 66, 83, 85, 96–107, 121, 128, 131, 133, 141. See also Van Evrie, John H.

Constitution and, 139, 140 in elections of 1862, 48 Whiting, William, 185 Wisconsin, 54 Wood, Forrest G., 111 Woodward, George W., 87, 93–96, 125, 157 Wright, Robert J., 133

York, Pa., 29–31

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