Lincoln, The Rule of Law, And the American Revolution - Paludan

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Lincoln, the Rule of Law,

and the American Revolution

PHILLIP S. PALUDAl\

THE ELECTION OF 1864 was an impor

tant one, perhaps the most important thisnation has ever had. It was important pri-marily because it was happening at all. Inthe midst of this country's bloodiest war-awar that would ult imately take more than

600,000 lives (one out of every eleven men

of service age), a war that quite literallyoften pitted brother against brother-the

people of the North were going to walk,not march, to the polls and cast their bal-

lots; they might even decide to repudiatethe war itself, to throw Lincoln out and put

in his place the Democratic par ty candi

date, George B. McClellan . I f they did so,they might be said to be declaring that theUnited States would be the disunited states

of America-two nations where there had

been one. Many believed that in voting

against Lincoln they would be saying thatthe Constitution had failed . Almost cer-

tainly if Lincoln lost, the slave's hope for

Philli]: S. Paludan is associate professor of history at the

Univers ity of Kansas. He is the author of A Covenant

with Death : The Constitution , Law, and Equality in

thc Civil War Era . This paper ll'{l S presented at the

1976 Lincoln Symposium at Springfield.

10

liberty would end. The election was hotly

contested, and as far as Lincoln knew hemight just lose it. In fact he predicted that

he would lose. 'On a small farm near Sturbridge, Mas-

sachusetts, John Phillips knew how he wasgoing to vote. Phillips was a Democrat of

the Thomas Jefferson school, and in 1864he was 105 years old. The first presidential

candidate he had voted for was George

Washington.

Election day came in the fall of 1864,and John Phillips got on his horse androde alongside his son, who was only sev-

enty-nine at the time. Together they rodeinto Sturbridge to the polling place at the

town hall. They got off their horses andwalked into the hall through a door bor

dered by two flags-both of them the Stars

and Stripes. When Phillips entered the

hall, the people there stood up and took

off their hats. He was the oldest man in

'Roy P. Basler, ed. , Marion Dolores Pratt and Lloyd

A. Dunlap, asst . ed s ., The Collected Works of Abraham

Lincoln (New Brunswick. N.J.: Rutgers UniversityPress, 1953-1955), VII , 514 (the series is hereinafter

cited as Collected Works).



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12

town, and maybe the oldest man in the

nation. To them, he was a symbol of the

Revolution of 1776. He had lived the Revolution that they only read or talked about.

Massachusetts did not have the secret

ballot in 1864, and Phillips was offered his

choice: he could take a ballot with McClel

Ian's name on it and vote for the Demo

cratic party and all it stood for, or he couldvote for Lincoln and all the Republican

party stood for. Phillips stepped forward.Bystanders paused to hear what he would

say . "I vote," he said, "fo r Abraham Lincoln." It was a resonating moment, more

important than any single vote out of themore than 2 ,300,000 Lincoln received , for

at that momen t the revolutionary genera

tion touched Lincoln and endorsed his efForts ."

Not every person of the revolutionary

generation would have voted for Lincoln;

perhaps many would have repudiated

him. Ce rr a i nl y the Confederacy had

doubts about whether or not Lincoln de

served such su pport. Yet those who votedfor Lincoln in 1864 must have believed

that the symbol did match reality-that

Lincoln was in fact the descendant of therevolutionary tradition, and that he was

leading the fight to preserve what the

blood of 1776 had been spilled to create.

Lincoln himself thought so: "Four score

and seven years ago our fathers brought

forth on this continent, a new nation, conceived in Liberty, and dedicated to the

proposition that all men are created equal.

Now we are engaged in a great civil war,

testing whether that nation, or any nat ionso conceived and so dedicated, can long

endure. :"

Lincoln had been thinking about the

central issues of the American Revolution

for many years before his November 19,

1863, address at Gettysburg. "I have never

had a feeling politically," he said in Febru

ary, 1861, "that did not spring from the

sentiments embodied in the Declaration of

Independence ." He had often wondered,he added, what kept the revolutionary sol

diers struggling in their fight for indepen

dence. He though t it was the Declaration.

Something more than just separation from

England; rather, a hope that they were

LINCOL:-.J AND THE AMERICAN REVOLUT ION

giving not only l iberty to themselves but

hope to the world that some day all men,

everywhere, shou ld have an equal chance. '

As Lincoln thought about 1776, two

themes emerged . Both would be impor

tant in his response to the Civil War crisis,

and both have a message for people onehundred years later. The themes are, first,

veneration for the rule of law and, second,

preservation of the revolutionary ideals.

Lincoln's respect for the rule of law fo

cused on the importance of law and order

in a democratic society. In his July 4, 1861,

address he put the question squarely:

"Must a government, of necessity, be too

strong for the liberties of its own people, or

too weak to maintain its own existence?"

Where was the line between liberty and

order? How could a nation guarantee

order without crushing the very liberty it

sought to preserve? 'Lincoln made his first statement on that

question in 1838, and his emphasis then

was on order. In January of that year theYoung Men's Lyceum of Springfield had

asked him to speak on "The Perpetuation

of Our Political Institutions." Lincoln pre

pared his talk in an atmosphere chargedby recent incidents of civil disorder. Mobshad murdered Negroes in Mississippi,

burned a black man to death in Missouri,

shot and killed an abolitionist editor in

Alton, Illinois, and terrorized directors ofa bank in Baltimore . To be sure, Lincoln

was a Whig and therefore opposed Andrew Jackson as "a concentrated mob," but

his objections to mob control were not

political only."In his speech to the Lyceum, Lincoln

did, of course, call for a halt to mob violence-not so much because of injustice to

the victims ( though that was appalling) as

-tu«, VIII. 118.' Ibid., VII, 23 .-tu«, IV, 240 .-tu«, p. 426.

"Lbid., I , 108-15 ; Joel Parker, A Charge to the GrandJilT)' upon the Importance o f Afaintaining the Supremacy of

the Laws (Concord, N.H .: Marsh, Capen & Lyon,

1838) ; Leonard Richards , Gentlemen o f Property an d

S t an d in g : An ti - ab o li t io n Mobs in jacksonian America

(New York: Oxford , (970); David Grimsted , "Rioting

in Its Jacksonian Setting," American Historical Review,



PHILLIP S. PALUDAN

because of the example of lawlessness thatmobs set. Soon, he believed, the decent,

law-abiding, law-respecting people of the

nation would lose faith in the ability of the

government to preserve order.

An even greater danger, Lincoln be

lieved,was that in such a situation, a tyrant

might appear-not that the many would

generate anarchy, but tha t one man wouldestablish a tyranny of misrule. Lincoln

feared that the best citizens would see the

excesses of mobs as proof that democratic

government could not work. The govern

ment of the country would then be "left

without friends, or with too few, and thosefew too weak, to make their friendship

effectual." At such a moment the ambitious

man, the man whose ambition overwhelmed his devotion to the existing sys

tem, would gain power, "seize the oppor

tunity, strike the blow, and overturn" the

nation's political system.'

Lincoln faced a potentially telling rebuttal, however. In the American Revolution

there had been mobs in the streets, as wellas the repudiation of an existing form of

government-government unmaking on a

large scale. Hundreds of thousands ofAmericans had devoted themselves to

demonstrating that the British form of

rule did not work. Yet that d isorder had

not spawned a tyrant. Did not history

therefore repud iate Lincoln? Was not his

argument the sort of political blather one

could expect of a Whig seeking to curtail

the triumph of Jacksonian democracy?

Was Lincoln not merely turning occasionaloutbreaks of violence into an excuse to

throwDemocrats out of office? Did not the

success of 1776 expose Lincoln's rhetoric

as shallow and politically expedient?

i7 (1972), 361-97; Sidney George Fisher, A Philadel-

phia Perspective: The Diary of Sidney George Fisher, ed.Nicholas B. Wainwright (Philadelphia : Historical So

ciety of Pennsylvania, 1967), pp . 154-58.

"Collected Works, I, I I 1-12.

"Ibu l., pp. 114-15. Fo r a general description of the

widespread national disquiet over the demise of therevolutionary generation, see Fred Somkin, Unquiet

Eagie: Memory and Desire in the Idea of American Free-

dom, /8 /5-1860 (Ithaca , N .Y. : Cornell University

Press, (967) .

"Collected Works, I, 112-15.

IThere is no question that political ex

pedience was involved in Lincoln's re

marks. He was not a saint. He was an

ambitious young Whig politician. The

Democrats were in office; the Whigs were

not. What he said had political purpose.

But it also reflected significant insight into

the meaning of the American Revolution .

Far from invalidating Lincoln's argument,

history-viewed as the passage of time instead of as a frozen moment-showed the

quality of his vision. For the date was not

1776. It was 1838 and the meaning of the

Revolution was different.The revolution of 1776 had not pro

duced a tyrant because, as Lincoln put it,

"the jealousy, envy, and avarice, incident

to our nature, and so common to a state ofpeace. . . were, for the time, in a great

measure smothered and rendered inac

tive; while the deep rooted principles of

hate, and the powerful motive of revenge,

instead of being turned against each other,were directed exclusively against the British nation ." But by 1838, as Lincoln said,

the "state of feeling" that had prevailed

during the Revolution "must fade, is fad-

ing, has faded, with the circumstances thatproduced it." The Revolution survived in

memory as a historical event, but the ideals

of those who lived i t-rather than reading

and hearing about it-were gone. By 1838

time had done what invading armies could

not do. The men whose convictions had

brought on the Revolution were passing

away. Those pillars of the temple of liberty, as Lincoln called them, were crum

bling, and the temple would also fall unless

something was done to hold it up ."

What, then, would save the Republic?

Were the passing of time and the ambi

tions and avarice of man to be the undoing

of the nation that Lincoln wou ld later call"the last best hope on earth"? Lincoln

thought not. A solution was available-asolution discovered by the revolutionary

generation: government of laws and not of

men . Reverence for law and the constitu

tional system would save the Republic. I freverence for law could become the "polit-

ical religion" of the nation, Lincoln said, its

people would find salvation from dis

order."



14

Lincoln spoke to perhaps the most compelling of the American tradit ions- tha t a

country should be ruled by laws, and that

legal-constitutional institutions should de

mand respect and devotion. In a society

based on the individual pursui t of bene

f i t -a society exalting individual rights andselfishness in both the economic and polit

ical spheres , a society of great geographic

and economic mobility, with no rigid class

lines to equal those of Europe, no estab

lished church, no enforced doctrinal pu

ri ty-what was to keep that soc iety from

flying apart? Lincoln had the answer

respect for legal institutions, for all laws,

for the due legal process of doing things,

and for fellow citizens as lawmakers and

law-respecters. I f a government made by

and for the peop le cou ld not earn respect,

what in the name of heaven could hold it

together. In a nation that encouraged, as

no other did, the individual search of mil

lions for different personal ends, what

would happen if its cit izens did not devote

themselves to unity of means? Lincoln un derstood profoundly the nation's devotion

to its legal institutions and the order of

law. He knew that the people, faced withthreats to order, were likely to follow the

man who promised order. Lincoln saw that

the nation 's greatest danger was not an

arch y but the compulsion to be saved from

anarchy."

Lincoln's solution to the prob lem of a

potential tyrant arose out of that same

attachment to the order of law. He pro

posed devotion to laws as the nation's "po-

litical religion." Perhaps he meant that apeople could protect themselves from an

order-espousing tyrant by devoting them

selves to laws, not men, and to the legally

established political p rocesses. Such devo

tion would prevent anyone man from

promising to mai ntain order by ignoring

or circumventing the law . Lincoln unde r

stood the ambitions of men . His own am

bition was a "little engine that knew no

rest ," as his fr iend William Henry Hern

don put it. And perhaps Lincoln's very

self-knowledge gave him a devotion to the

nation's restraints on such ambitions. I I

Whether his understanding of order in a

democracy grew out of personal insight or

LIl\:COLN AND THE AMERICAt\ REVOL UTION

political awareness or a combination of the

two, his conclusion was the same- t h e sal

vat ion of the nation depended on nurtur

ing and sustaining a devotion to the legal

constitutiona l system established during

the revolutionary era .

Lincoln 's venerat ion for the rule of lawis one aspect of the connection he has with

the Revolution of 1776. But he also recog

nized that the Constitution was worthy of

devotion because it was a constitution of

liberty-one created to give life to the

ideals of the Declaration of Independence .When Lincoln saw those ideals in danger,

when he saw the spirit of 1776 repudiated,

he was energized into action.

I n 1820 the United States Congress

passed the Missouri Compromise, which

proh ibited slavery above 36° 30' latitude

(the territories acq u ired in the Louisiana

Purchase) and provided that Missouriwou ld enter the Union as a slave state and

Maine as a free state. Most people believedthat the Compromise was a resolution of

the slavery issue in the territories . The

government had committed itself to protecting slavery in one place and allowing

freedom to grow in another. To men likeLincoln that settlement was in accord with

the ideals of the Revolution . It was a set

tlement that had to be made , but one that

did not give nationa l approval to slave ry.Lincoln believed that the founders of the

nation believed that slavery was an evil, an

evil that would die out in time. He thought

that they had sanctioned slavery in the

Constitution because without it there

would have been no constitution at all. Butthey hoped and perhaps be lieved that thatnecessary evil would eventually fade

away. "

In 1854 it became apparent to Lincoln

"'I ha ve e laborated the importan ce of legal institu tions for pre- Civil War society in 'T he Ame r ica n Civil

War Consid ere d as a Crisis in Law and O rde r:'

American Hi storical Review, 77 ( 1972) . 101 3- 34.

"On Lincoln 's personal ambition as a so urce for his

views of democracy. see Edmund Wilson , Patriotic

Gore: Studies in the Li terature of the AmeriwlI Ci vil lVar

(New York : Oxford , 1962 ). pp . 99- 131.

" Collected Works, I I , 275 ." Ibid.



PHILLIP S. PAL UDAl\:

and to thousands of others that a basicissue of the Revolution of 1776 was, in fact,

being repudiated. T he Kansas-Nebraska

Act of 1854 , which allowed slavery to ex

pandabove the 36°3D' line, seemed to givethe endorsement of the national govern

ment to the idea that slavery was not anevil to be quarantined .

Lincoln charged that the Kansas-Nebraska Act had changed the moral stance

of the nation. "Near eighty years ago," hesaid , "we began by declaring that all men

are created equa l; but now from that be

ginning we have run down to the other

declaration, that for SOME men to enslaveOTHERS is 'a sacred right of self-govern

ment.' " Lincoln noted tha t one senator, on

the floor of Congress, had recen tly calledthe Declaration of Independence a "selfevident lie"- a nd no one had rebuked

him. Had such a statement been made at

Ii i

Independence Hall in 1776, Lincoln insisted, "the very door-keeper would have

th ro tt led the man, and thrus t him into thestreet. " 1:1

The ideals of the revolutionary era

seemed to be dying with the men who hadfirst espoused them . To that point Lincoln

on several occasions quoted his polit icalidol Henry Clay. Cla y, a slaveholder him

self, nevertheless believed that slavery

would and should decline and die, and

opposed those who defe nd ed human

bondage. As Lincoln put it, "Henry Cla yonce said of a class of men who would

repress all tendencies to liberty and ulti

mate emancipation, that they must, if they

would do this, go back to the era of our

Independence, and muzzle the cannon

which thunders its annual joyous re tu rn ;

they must blowout the mora l ligh t saround us; they must penetrate the human

In th is 1864 cartoon, distributed byCurr ier and l ues,Democratic presidential candidateGeorge B. Mccllellanis portra yed as a conciliator between Lincoln and Jefferson Davis.

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TH[ T RU[ ISS LJ [ 0 R "T HATS WHAT S T H [ MAT T ER" ',



16

soul, a nd erad icate there the love of lib

erty; and then and not till then, cou ld they

perpetuate slavery in this country."! 'Lincoln saw the moral lights around him

going out . In 1857 the United States Su

preme Court issued the Dred Scott deci

sion. I t had two major points: First, Con

gress cou ld pass no law that interfered

with the r ight of slaveholders to take their

slaves into the territories (an endorsement

of the principle of the Kansas-Nebraska

Act); second, no black man could be a

citizen of the United States. The r ight to

citizenship, as Chief Justice Earl Warren

would later observe, is the most importantright of all. It is the right to have rights.

But in 1857 Chief Justice Roger Taney

insisted that the revolutionary generation,

the men who wrote the Constitution, did

not be lieve that blacks were part of the

national pol itical body.

The decision outraged Lincoln . He insisted that the revolutionary founders had

in fact seen blacks as members of the po

litical community. Blacks had voted in New

Hampshire, Massachusetts , New York,

New Jersey , and even in North Carolina,

during the revolutionary era. As a furtherindication of the low esteem in which slav

ery was held in that era, most states alsomade it easy for masters to free their

slaves.

But how things had changed. As Lincoln

sa id, "In those days, our Declaration of

Independence was held sac red by all, andthought to include all; but now, to aid in

making the bondage of the negro un iver

sal and eterna l, it is assailed, and sneeredat, and construed, and hawked at, and

torn, till, if its framers cou ld r ise from

th eir graves, th ey cou ld not at all recognize

it." T he black man 's pligh t seemed sym

bo lic of th e di sdain for liberty current inthe land .

All h e po.wersof earth seem rapidly combiningagainst him. Mammon is after him; ambitionfollows, and philosophy follows, and the The

ology of the day is fast joining the cry. Theyhave him in his prison house; they havesearched his person, and left no prying instrument with him. One after another they haveclosed the heavy iron doors upon him, and nowthey have him, as it were, bolted in with a lock

LINCOLN A1\'D THE AMERICA1\' REVOLUTION

of a hundred keys, which can never be unlocked without the concurrence of every key;the keys in the hands of a hundred differentmen , and they scattered to a hundred differentand distant places; and they stand musing as towhat invention, in all the dominions of mindand matter, can be produced to make the im

possibility of his escape more complete than itis."

Less eloquently Lincoln expressed his

feelings to a correspondent: "When we

were the political slaves of King George,

and wanted to be free, we called the

maxim that 'all men are created equal' aself evident truth; but now when we have

grown fat, and have lost all d read of beingslaves ourselves, we have become so greedy

to be masters that we call the maxim 'aself-evident lie.' The fourth of Ju ly has notquite dw ind led away; it is st ill a great

day-for burning fire-crackers!!!"'"

The secession crisis of 1860- 1861brought together the two aspects of Lincoln's devotion to revolutionary traditions:

concern for the rule of law and apprehen

sion about the survival of the ideals of

1776.

On the Fourth of July, 1861, Lincolnarticulated the two concerns in a discussion

of the right of revolution, made in response to declarations by secessionists that

they were now do ing four score and five

years la ter wha t the founders had done in

1776. T he secessionists argued that they

had been oppressed by a central power,

and were therefore seeking autonomy

the right to be let alone, to live as they

chose.Lincoln unknowingly had been prepar

ing himse lf a ll his adult life to answer thatasse rtion. Yes, he ins isted, th e re is a r ight

of re volutio n . And the people may revolt

against tyran ny. Bu t the cruc ial question

was, "What are you making a revolution

" Ibid.. 1I1. 29 .-uu..

11,403-04 .,,,lbid., p. 318 .

" Ibid., IV, 438. See also Thomas Pressly, "Bullets

and Ballots: Lincoln and the 'Righ t of Revolution' ...

A merical! Historical Review, 67 (1962), 647-62 ; in that

excellent art icle Pressly emphasizes Lincoln 's rela

tionship to the revolutionary tradition and his criteria



PHILLIP S. PALUDAN

for?" When a revolution took place for a

morally justifiable cause, then revolution

was a moral right. But when exercised

without such a cause, it was "simply awicked exercize of physical power." What

was the cause , then , fo r which the Sou th

was revolting? Lincoln thought he knew.

He saw that the southern states hadhoisted the banner of the Declaration of

Independence, but argued that it was notthe banner of '76 . "Our adversaries have

adopted some declarations of indepen

dence ," he told Congress in July, 1861.But, "unlike the good old one, penned by

Jefferson, they omit the words 'all men are

created equal. ' Why? They have adopted atemporary national constitution, in the

preamble of which, unlike our good oldone, signed by Washington, they omit,

'We, the People,' and substitute 'We, the

deputies of the sovereign and independent

States.' Why? Why this deliberate pressing

out of view, the rights of men, and the

authority of the people?" Protection of therights of men and the authority of the

people had justified the Revolution of

1776 and made it more than a "wicked

exercize of physical power.' :"Perhaps Lincoln's denial of the right of

revolution to the Confederacy was only a

rhetorical coup . More compelling to him

was the fact that secession-especially se-

cession by gunfire-struck at the only se-

curity the generat ion of 1776 had been

able to pass on to its descendants-the

institutions, the laws, and the Constitution.

The men of the Revolution were gone, but

their laws and institutions remained. And

those had to become the "political religion

of the nation." Lincoln insisted that any

attempt to form a Confederacy by de

stroying the Union was illegal. There were

no lawful means and no lawful justificationfor secession.

for justified and unjustified revolutions . In this essay

I have tried to change th e orientation by placingLincoln's views within the con te x t of his concern for

the rule of law and his belief that the revolutionary

heritage of 1776 cou ld only be secured through a

respect fo r legal-constitutional institutions.

"Collected Works, IV, 267-68 .

17

The South had been denied no legalright in 1860, Lincoln insisted. No re

sponsible official had threatened to touch

slavery in the slave states. The right of

Southerners to hold property there (the

only clear legal right they had over the

slaves) was not in jeopardy. Furthermore ,

the secessionists were not, despite their

protestations to the cont ra ry , respec ting

the Constitution at all. They were rejectingthe constitutionally established means of

changing the results of an election-that is,winning the next elect ion. At best, seces-

sion was replacing the electoral process. Atworst, bullets were replacing ballots. But

secession was not a constitutional device

and not a legal recourse. I t was not law; it

was "the essence of anarchy ."!"Throughout the prewar era Lincoln had

seen evidence that the ideals of the Amer

ican Revolution no longer enlisted the de

votion of his generation . Since the

Kansas-Nebraksa Act and probably earlier,

Lincoln had been reinforced in his belief,

expressed in the 1838 Lyceum address ,

that the idealism of the generat ion of 1776

was fading. All that remained of that

idealism was the nation's constitutionallegal institutions. And secession now mor

tally endangered those. Lincoln could not

and would not allow those institutions to

fall.

And thus the war came-four long years

fought, as Winston Churchill later wouldsay, to the last desperate inch. You know

the result- t h e principle of battle by ballot

triumphed over battle by bullet. The idea

that all men are crea ted equal prevailed

over the idea that some men have the right

of winning their bread from the sweat of

other men 's faces. The nation was a little

further on the road to securing for all

people the rights to life, liberty, and the

pursuit of happiness. The Constitution

and t he ins ti tu ti ons it nurtured had

triumphed. The principles of the Declara

tion were close to realization. That, after

all, was why John Phillips of 1776 had

voted for Abraham Lincoln in 1864.

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Lincoln, The Rule of Law, And the American Revolution - Paludan