The period of Lincoln's last eclipse is a period of relative silence. But his mind was not inactive. He did not cease thinking upon the deep theoretical distinctions that were separating him by a steadily widening chasm from the most powerful faction in Congress. In fact, his mental powers were, if anything, more keen than ever before. Probably, it was the very clearness of the mental vision that enfeebled him when it came to action. He saw his difficulties with such crushing certainty. During this trying period there is in him something of Hamlet.
The reaction to his ideas, to what is either expressed or implied, in the first and second messages, was prompt to appear. The Jacobins did not confine their activities within the scope of the terrible Committee. Wade and Chandler worked assiduously undermining his strength in Congress. Trumbull, though always less extreme than they, was still the victim of his delusion that Lincoln was a poor creature, that the only way to save the country was to go along with those grim men of strength who dominated the Committee. In January, a formidable addition appeared in the ranks of Lincoln's opponents. Thaddeus Stevens made a speech in the House that marks a chapter. It brought to a head a cloud of floating opposition and dearly defined an issue involving the central proposition in Lincoln's theory of the government. The Constitution of the United States, in its detailed provisions, is designed chiefly to meet the exigencies of peace. With regard to the abnormal conditions of war, it is relatively silent. Certain "war powers" are recognized but not clearly defined; nor is it made perfectly plain what branch of the government possesses them. The machinery for their execution is assumed but not described--as when the Constitution provides that the privileges of the writ of habeas corpus are to be suspended only in time of war, but does not specify by whom, or in what way, the suspension is to be effected. Are those undefined "war powers," which are the most sovereign functions of our government, vested in Congress or in the President? Lincoln, from the moment he defined his policy, held tenaciously to the theory that all these extraordinary powers are vested in the President. By implication, at least, this idea is in the first message. Throughout the latter part of 1861, he put the theory into practice. Whatever seemed to him necessary in a state of war, he did, even to the arresting of suspected persons, refusing them the privilege -of the habeas corpus, and retaining them in prison without trial. During 1861, he left the exercise of this sovereign authority to the discretion of the two Secretaries of War and of State.
Naturally, the Abolitionists, the Jacobins, the Democratic machine, conscientious believers in the congressional theory of the government, every one who for any reason, wanted to hit the Administration, united in a chorus of wrath over arbitrary arrests. The greatest orator of the time, Wendell Phillips, the final voice of Abolition, flayed the government in public speeches for reducing America to an absolute despotism. Trumbull introduced into the Senate a resolution calling upon the President for a statement of the facts as to what he had actually done.[1]
But the subject of arrests was but the prelude to the play. The real issue was the theory of the government. Where in last analysis does the Constitution place the ultimate powers of sovereignty, the war powers? In Congress or in the President? Therefore, in concrete terms, is Congress the President's master, or is it only one branch of the government with a definite but united activity of its own, without that sweeping sovereign authority which in course of time has been acquired by its parent body, the Parliament of Great Britain?
On this point Lincoln never wavered. From first to last, he was determined not to admit that Congress had the powers of Parliament. No sooner had the politicians made out this attitude than their attack on it began. It did not cease until Lincoln's death. It added a second constitutional question to the issues of the war. Not only the issue whether a State had a right to secede, but also the issue of the President's possession of the war powers of the Constitution. Time and again the leaders of disaffection in his own party, to say nothing of the violent Democrats, exhausted their rhetoric denouncing Lincoln's position. They did not deny themselves the delights of the sneer. Senator Grimes spoke of a call on the President as an attempt "to approach the footstool of power enthroned at the other end of the Avenue."[2] Wade expanded the idea: "We ought to have a committee to wait on him whenever we send him a bill, to know what his royal pleasure is with regard to it. . . . We are told that some gentlemen . . . have been to see the President. Some gentlemen are very fortunate in that respect.
Nobody can see him, it seems, except some privileged gentlemen who are charged with his constitutional conscience."[3] As Lincoln kept his doors open to all the world, as no one came and went with greater freedom than the Chairman of the Committee, the sneer was-what one might expect of the Committee. Sumner said: "I claim for Congress all that belongs to any government in the exercise of the rights of war." Disagreement with him, he treated with unspeakable disdain: "Born in ignorance and pernicious in consequence, it ought to be received with hissings of contempt, and just in proportion as it obtains acceptance, with execration."[4] Henry Wilson declared that, come what might, the policy of the Administration would be shaped by the two Houses. "I had rather give a policy to the President of the United States than take a policy from the President of the United States."[5] Trumbull thundered against the President's theory as the last word in despotism.[6]
Such is the mental perspective in which to regard the speech of Stevens of January 22, 1862. With masterly clearness, he put his finger on the heart of the matter: the exceptional problems of a time of war, problems that can not be foreseen and prepared for by anticipatory legislation, may be solved in but one way, by the temporary creation of the dictator; this is as true of modern America as of ancient Rome; so far, most people are agreed; but this extraordinary function must not be vested in the Executive; on the contrary, it must be, it is, vested in the Legislature. Stevens did not hesitate to push his theory to its limit. He was not afraid of making the Legislature in time of war the irresponsible judge of its own acts. Congress, said he. has all possible powers of government, even the dictator's power; it could declare itself a dictator; under certain circumstances he was willing that it should do so.[7]
The intellectual boldness of Lincoln was matched by an equal boldness. Between them, he and Stevens had perfectly defined their issue. Granted that a dictator was needed, which should it be--the President or Congress?
In the hesitancy at the White House during the last eclipse, in the public distress and the personal grief, Lincoln withheld himself from this debate. No great utterances break the gloom of this period. Nevertheless, what may be considered his reply to Stevens is to be found. Buried in the forgotten portions of the Congressional Globe is a speech that surely was inspired-or, if not directly inspired, so close a reflection of the President's thinking that it comes to the same thing at the end.
Its author, or apparent author, was one of the few serene figures in that Thirty-Seventh Congress which was swept so pitilessly by epidemics of passion. When Douglas, after coming out valiantly for the Union and holding up Lincoln's hands at the hour of crisis, suddenly died, the Illinois Legislature named as his successor in the Senate, Orville Henry Browning. The new Senator was Lincoln's intimate friend. Their points of view, their temperaments were similar. Browning shared Lincoln's magnanimity, his hatred of extremes, his eagerness not to allow the war to degenerate into revolution. In the early part of 1862 he was Lincoln's spokesman in the Senate. Now that the temper of Wade and Chandler, the ruthlessness that dominated the Committee, had drawn unto itself such a cohort of allies; now that all their thinking had been organized by a fearless mind; there was urgent need for a masterly reply. Did Lincoln feel unequal, at the moment, to this great task? Very probably he did. Anyhow, it was Browning who made the reply,[8] a reply so exactly in his friend's vein, that--there you are!
His aim was to explain the nature of those war powers of the government "which lie dormant during time of peace," and therefore he frankly put the question, "Is Congress the government?" Senator Fessenden, echoing Stevens had said, "There is no limit on the powers of Congress; everything must yield to the force of martial law as resolved by Congress." "There, sir," said Browning, "is as broad and deep a foundation for absolute despotism as was ever laid." He rang the changes on the need to "protect minorities from the oppression and tyranny of excited majorities."
He went on to lay the basis of all Lincoln's subsequent defense of the presidential theory as opposed to the congressional theory, by formulating two propositions which reappear in some of Lincoln's most famous papers. Congress is not a safe vessel for extraordinary powers, because in our system we have difficulty in bringing it definitely to an account under any sort of plebiscite. On the other hand the President, if he abuses the war powers "when peace returns, is answerable to the civil power for that abuse."
But Browning was not content to reason on generalities. Asserting that Congress could no more command the army than it could adjudicate a case, he further asserted that the Supreme Court had settled the matter and had lodged the war powers in the President. He cited a decision called forth by the legal question, "Can a Circuit Court of the United States inquire whether a President had acted rightly in calling out the militia of a State to suppress an insurrection?" "The elevated office of the President," said the Court, "chosen as be is by the People of the United States, and the high responsibility he could not fail to feel when acting in a case of such moment, appear to furnish as strong safeguards against the wilful abuse of power as human prudence and foresight could well devise. At all events, it is conferred upon him by the Constitution and the laws of the United States, and therefore, must be respected and enforced in its judicial tribunals."[9]
Whether or not constitutional lawyers would agree with Browning in the conclusion he drew from this decision, it was plainly the bed rock of his thought. He believed that the President--whatever your mere historian might have to say--was in point of fact the exponent of the people as a whole, and therefore the proper vessel for the ultimate rights of a sovereign, rights that only the people possess, that only the people can delegate. And this was Lincoln's theory. Roughly speaking, he-conceived of the presidential office about as if it were the office of Tribune of the People.
There was still another reason why both Lincoln and Browning feared to yield anything to the theory of congressional supremacy. It was, in their minds, not only the general question of all Congresses but immediately of this particular Congress. An assembly in which the temper of Wade and Chandler, of Stevens and Sumner, was entering the ascendent, was an assembly to be feared; its supremacy was to be denied, its power was to be fought.
Browning did not close without a startling passage flung square in the teeth of the apostles of fury. He summed up the opposite temper, Lincoln's temper, in his description of "Our brethren of the South--for I am willing to call them brethren; my heart yet yearns toward them with a fervency of love which even their treason has not all extinguished, which tempts me constantly to say in their behalf, 'Father, forgive them, for they know not what they do.'" He pleaded with the Senate not to consider them "as public enemies but as insurgent citizens only," and advocated an Act of Amnesty restoring all political and property rights "instantly upon their return to allegiance and submission to the authority of the government."
Had this narrowly constitutional issue arisen in quiet times, who can say how slight might have been its significance? But Fate had decreed that it should arise in the stormiest moment of our history. Millions of men and women who cared nothing for constitutional theories, who were governed by that passion to see immediate results which the thoughtless ever confuse with achievement, these were becoming hysterical over delay. Why did not the government do something? Everywhere voices were raised accusing the President of cowardice. The mania of suspicion was not confined to the Committee. The thoughts of a multitude were expressed by Congressman Hickman in his foolish words, "These are days of irresponsibility and imbecility, and we are required to perform two offices--the office of legislator and the office of President." The better part of a year had passed since the day of Sumter, and still the government had no military success to its credit. An impetuous people that lacked experience of war, that had been accustomed in unusual measure to have its wishes speedily gratified, must somehow be marshalled behind the government, unless the alternative was the capture of power by the Congressional Cabal that was forming against the President.
Entering upon the dark days of the first half of 1862, Lincoln had no delusions about the task immediately before him. He must win battles; otherwise, he saw no way of building up that popular support which alone would enable him to keep the direction of policy in the hands of the Executive, to keep it out of the hands of Congress. In a word, the standing or falling of his power appeared to have been committed to the keeping of the army. What the army would do with it, save his policy or wreck his policy, was to no small degree a question of the character and the abilities of the Commanding General.