Guest Essayist: Horace Cooper, legal commentator, contributor with Constituting America and adjunct fellow with the National Center for Public Policy Research

There has been much discussion about the reach and scope of executive power.  While certainly Presidents Washington and Jefferson provide good lessons about what would be accepted practice from an executive, perhaps no other President besides Lincoln gives as extensive a model of executive authority.

To start, President Lincoln responded to the April attack on Ft Sumter and the growing secessionist movement by putting executive power front and center.  The Civil War started during the Congressional recess and President Lincoln would prosecute the North’s response for nearly 3 months before calling Congress into special session.   Note the Civil War would be the most significant challenge facing the United States since the War of 1812 with Britain.

In Lincoln’s Congressional address he makes his case for the actions he’s taking by listing to Congress how the situation ultimately had come about.  Even after nearly 3 months at war, he feels it necessary to recount his interest in reconciling the “confederates” through dialogue and patient counseling.

“The policy chosen looked to the exhaustion of all peaceful measures, before a resort to any stronger ones. It sought only to hold the public places and property, not already wrested from the Government, and to collect the revenue; relying for the rest, on time, discussion, and the ballot-box. It promised a continuance of the mails, at government expense, to the very people who were resisting the government; and it gave repeated pledges against any disturbance to any of the people, or any of their rights. Of all that which a president might constitutionally, and justifiably, do in such a case, everything was foreborne, without which, it was believed possible to keep the government on foot.”

Lincoln also explained that even as things escalated to armed conflict, he had sought to minimize provocation.

“As had been intended, in this contingency, it was also resolved to notify the Governor of South Carolina, that he might expect an attempt would be made to provision the Fort; and that, if the attempt should not be resisted, there would be no effort to throw in men, arms, or ammunition, without further notice, or in case of an attack upon the Fort. This notice was accordingly given; whereupon the Fort was attacked, and bombarded to its fall, without even awaiting the arrival of the provisioning expedition.”

Lincoln explains that this conflict that was taking place was not because the Union provoked action — precisely the opposite.  Nor was it because the Union was unwilling to negotiate and use democratic persuasion.  It was because the “confederates” had no desire to do so.

“It is thus seen that the assault upon, and reduction of, Fort Sumter, was, in no sense, a matter of self-defense on the part of the assailants. They well knew that the garrison in the Fort could, by no possibility, commit aggression upon them. They knew–they were expressly notified–that the giving of bread to the few brave and hungry men of the garrison, was all which would on that occasion be attempted, unless themselves, by resisting so much, should provoke more….. trusting, as herein-before stated, to time, discussion, and the ballot-box, for final adjustment; and they assailed, and reduced the Fort, for precisely the reverse object–to drive out the visible authority of the Federal Union, and thus force it to immediate dissolution.”

Lincoln then turns to perhaps the most important issue involving the Civil War, whether the secessionist movement was legal.  He explains that in a republic — a democracy that operates under rules of law — those in the minority are not supposed to be able to dissolve the government merely because they don’t approve of its actions.

“And this issue embraces more than the fate of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy–a government of the people, by the same people–can, or cannot, maintain its territorial integrity, against its own domestic foes. It presents the question, whether discontented individuals, too few in numbers to control administration, according to organic law, in any case, can always, upon the pretences made in this case, or on any other pretences, or arbitrarily, without any pretence, break up their Government, and thus practically put an end to free government upon the earth.”

Presumably the republic is accountable to the whole of the people.  And if a majority of the people were to decide the government needed changing or evening dissolving, they certainly could.  But in this case, Lincoln says there is a disaffected minority.  Lincoln asks how any republic could operate if at any time a minority could dissolve either the whole government or seize sizable territorial parts and simply announce they were no longer part of the whole.  One can imagine a situation where a resident of New York or Rhode Island owns a factory in Georgia.  If Georgia suddenly became a foreign country over the objections of the majority of the population — how would the Rhode Islander’s rights be protected?

In fact wouldn’t every citizen’s rights be jeopardized if their divorce, lawsuit, claim on property, campaign for political office or any other right and privilege of citizenship could be stripped if a minority could simply declare the sovereign government has come to an end or if that minority could seize valuable land and assets and declare them now part of a new foreign government.

By the way, if that principle were to hold, why not allow this minority to transfer the assets into the hands of an actual enemy?  Why couldn’t the secessionists claim that they were returning the land and assets to England?

This then leads Lincoln to his conclusion.  War.

So viewing the issue, no choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation.

After making his case to Congress that war was inevitable, Lincoln takes time to give a very particularized detailing of the actions he’s taken to ensure that the war effort would be successful.   It is here that many of the executive actions can be seen which demonstrate the scope and extent of executive authority.  Lincoln called for volunteers in the militia and sought to dramatically increase the size of the army and navy saying that “Congress would readily ratify” these decisions when they came back from recess.

Along with issuing an order allowing the military to imprison insurrectionists and those aiding them at will (suspending the writ of habeas corpus).

Next Lincoln turns back to the motives of what he calls the “rebellion.”  Lincoln calls the argument that any state has the right to withdraw from the Union a “sophism.”

“They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and thereforelawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.”

In other words, instead of the litany of reasons the Founders presented to Britain regarding the revolution — imprisoning foes, dismissing their duly elected legislature, confiscating unpopular newspapers, restricting access to firearms even from colonists in dangerous locations, and taxing the colonies without providing them representation — the rebellion essentially had one complaint.  Too many Americans opposed slavery on moral grounds and now after the elections that was represented in the executive branch.  Moreover, this view might one day become a supermajority in the legislative branch.  That super-majority might pass a constitutional amendment that might ban slavery.

In Lincoln’s mind this one policy difference was not tyranny and surely didn’t justify the dissolution of the union or the loss of any of the Union’s territory.  This was an issue that should be resolved by political discourse.   From a practical perspective, there were inherent problems with the notion that any state could secede at any point for any reason.

“Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money?”

And Lincoln also explains that even if this principle were accepted, what does one do about the fact that it was likely that a majority of the voters in the seceded states opposed secession?

“It may well be questioned whether there is, today, a majority of the legally qualified voters of any State, except perhaps South Carolina, in favor of disunion. There is much reason to believe that the Union men are the majority in many, if not in every other one, of the so-called seceded States. The contrary has not been demonstrated in any one of them. It is ventured to affirm this, even of Virginia and Tennessee; for the result of an election, held in military camps, where the bayonets are all on one side of the question voted upon, can scarcely be considered as demonstrating popular sentiment. At such an election, all that large class who are, at once, for the Union, and against coercion, would be coerced to vote against the Union.”

Lincoln closes his address with a strong proclamation for the U.S. Constitution and the need to defend the American union.

The Constitution provides, and all the States have accepted the provision, that “The United States shall guarantee to every State in this Union a republican form of government.” Lincoln explains:

But, if a State may lawfully go out of the Union, having done so, it may also discard the republican form of government; so that to prevent its going out, is an indispensable means, to the end, of maintaining the guaranty mentioned; and when an end is lawful and obligatory, the indispensable means to it, are also lawful, and obligatory.

Finally, Lincoln explains that the “confederates” threaten the whole notion of self-government through a republic if the minority can simply leave or insist that the majority reverse a course it is legally entitled to take.

“ … popular government can long survive a marked precedent, that those who carry an election, can only save the government from immediate destruction, by giving up the main point, upon which the people gave the election. “

Read Abraham Lincoln’s Message to Congress in Special Session here:

Horace Cooper is a legal commentator, a contributor with Constituting American and adjunct fellow with the National Center for Public Policy Research

May 22, 2013 – Essay #68





1 reply
  1. Tom Bolt
    Tom Bolt says:

    The language and syntax of these men of the past boggles my cognitive process making it difficult to decipher exactly what is being said, and puzzling out the meaning. It seems to me Lincoln avoids the use of specific nouns and subjects while using others. If I wrote this way my superiors would send me back and write it so it could be understood. maybe I am wrong and the document is clear and concise but I could not prove it.


Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply to Tom Bolt Cancel reply

Your email address will not be published. Required fields are marked *