At noon on March 4, 1861, the moral situation of Abraham Lincoln of Illinois was abruptly transformed.
That morning, arising in the Willard Hotel at 14th Street and Pennsylvania Avenue in downtown Washington, he has been a private citizen, an individual moral agent. But that afternoon, standing on the steps of the East Portico of the Capitol before 30,000 fellow citizens, he had become an oath-bound head of state.
He had been transmuted by the constitutional wizardry into the “executive” of the federal government of the United States, the position that the framers in Philadelphia 74 years before had decided to call by the word “President.”
There abruptly settled upon his elongated frame a profound new responsibility, obligating, constraining and empowering him.
He would transform the office — and the office would transform him.
Lincoln’s first virtue was his oath-bound promise to preserve the nation. Taking the oath had, for him, a depth and breadth of moral meaning that went beyond what it had meant for his immediate predecessors. For him, it was a personal and a categorical moral commitment to the preservation of the whole nation itself.
He had focused on the oath from the start of his awareness that he would become president. Back in January of 1861, in Springfield, he hid away in a dingy, dusty back room, upstairs over a store to compose his inaugural address, and he started and ended with the oath.
South Carolina had already passed its ordinance of secession and celebrated with fireworks on December 20. Six other Deep South states followed. While they were claiming to have seceded, Lincoln, in a kind of secret counterpoint, was writing that what they were doing was “legally nothing.” (In Washington, William Seward, who would become his secretary of state, would persuade him to change “nothing” to the lawyer’s word “void.”)
Lincoln began his address by saying:
In compliance with a custom as old as the government itself, I appear before you to address you briefly, and to take, in your presence, the oath prescribed by the Constitution of the United States, to be taken by the President before he enters on the execution of his office.
When he came to the end of the speech, as he first wrote it in Springfield, he sharply distinguished his moral situation from that of the rebels:
In your hands, my dissatisfied fellow countrymen, and not in mine, is the momentous issue of civil war.
And he explained that radical moral difference by reference to his oath:
You have no oath registered in Heaven to destroy the government, while I shall have the most solemn one to preserve, protect and defend it. You can forbear the assault upon it; I cannot shrink from the defense of it.
To expand, Lincoln could have said, “You are still in the moral realm of calculation and possibility, of better and worse, of choice; I will be in the different moral realm of imperative and necessity.
I will have a sworn oath, a solemn, self-binding promise; you have not. You can act differently; I cannot.
The moral claim upon me is categorical; on you, hypothetical; for me, imperative, for you, discretionary. I will take a most solemn oath. You will have no such oath. My oath will be ‘registered in Heaven’ — you have no such heavenly registration for any purpose of yours. I cannot shrink — you are not prevented from altering your course of action.”
And then he planned to finish, in the last words he would speak, echoing out across the inaugural day crowd and across the nation: “With you, and not with me, is the solemn question of ‘Shall it be peace, or a sword?’”
When he got to Washington, he changed that ending. He took Seward’s suggestion that there be a more conciliatory ending and, showing a quite extraordinary literary and rhetorical power of a new sort while working in the Willard Hotel under the intense pressures of the final week, converted Seward’s raw materials by the alchemy of his editing from dross to gold.
But before he would come to the “mystic chords of memory” and “better angels of our nature” at the end of the address as he would finally give it, there was still in the penultimate paragraph that sharp distinction between his moral situation and that of his dissatisfied countrymen:
You have no oath registered in Heaven to destroy the government, while I shall have the most solemn one to “preserve, protect, and defend” it.
Sitting behind him on the platform was another man who had taken that presidential oath, James Buchanan, with whom on this day he had ridden down Pennsylvania Avenue past the crowds, with the riflemen watching from the rooftops.
Buchanan had a different view of the meaning of the oath. He had not felt any presidential duty, nor found any constitutional power, to resist the secession of South Carolina or of six other states in the following months.
In December, after Lincoln’s election, Buchanan had sent to Congress a weirdly self-contradictory annual message full of astonishing reversals ending up nowhere.
He had blamed the crisis entirely on “the incessant and violent agitation of the slavery question throughout the North for the last quarter of a century.”
That agitation, Buchanan said, “has at length produced its malign influence on the slaves and inspired them with vague notions of freedom.”
This section of the human family being inspired by “vague notions of freedom” was deplored by this American president, not because of its vagueness but because of the freedom.
President Buchanan had described the result in language that might have come from a secessionist firebrand: “Hence a sense of security no longer exists around the family altar. This feeling of peace at home has given place to apprehensions of servile insurrections. Many a matron throughout the South retires at night in dread of what may befall herself and children before the morning.”
But then, having accepted and given voice to his Southern friends’ diagnosis, he astonished everyone by rejecting their prescription: He denied that there is any constitutional right to secede. He insisted, as Lincoln would, that the Union is perpetual.
There were sentences in this part of his message, indeed, that Lincoln could have taken over into his Inaugural Address. Buchanan said, for example, that to regard the Union as a mere voluntary association of states would make it “a rope of sand” (a figure of speech Lincoln could have used) with the 33 states becoming “as many petty, jarring, and hostile republics” (a dramatization of a point Lincoln would make, and Madison before him).
But at that point, having astonished many who did not think the weak and vacillating Buchanan (as they had come to think of him) had the fortitude to oppose secession, he reversed the astonishment by arguing that if, nevertheless, a state did resist, did secede, there was nothing the federal government could do about it. It could not “coerce” a state. There, more specifically, was nothing the president could do about a state seceding.
Buchanan was inclined to belittle the president’s role — “a mere executive officer,” said Buchanan. “He is no more than the Chief Executive officer of the government. His province is not to make but to execute the laws.”
“The Executive has no authority to decide what shall be the relations between the federal government and South Carolina,” said Buchanan.
Seward had given a witty summary of President Buchanan’s position: “I think the president has conclusively proved two things,” said Seward of Buchanan. “First, no state has the right to secede from the Union, unless it wishes to, and, second, that it is the president’s duty to enforce the laws, unless somebody opposes him.”
That would not be Lincoln’s view. Where Buchanan sought avoidance and found restriction, and therefore excuse, this new president would accept responsibility and find necessity and therefore empowerment.
Whereas President Buchanan had not believed that that oath required him to resist secession, or that the Constitution permitted him to, Lincoln believed that the Constitution did permit him to resist, and that his oath required him to.
The Chief Justice who administered the oath certainly did not think the oath required, or the Constitution permitted, any such thing.
When, on Inauguration Day, Lincoln finished delivering his address, there arose on the platform a withered, aged and stooped figure, a “gnarled corpse,” who came forward accompanied by a clerk holding a large Bible.
This was Roger Taney, the author of the Dred Scott decision, now about to serve as Chief Justice under his ninth president. The Chief Justice inaudibly administered the oath, with the clerk holding the Bible, and the new president speaking the most solemn oath, registered, as he put it, in Heaven, the two men radically disagreeing about what it meant:
I, Abraham Lincoln, do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Before three months would pass, Lincoln would have occasion to make a striking reference to his oath in an exchange with the Chief Justice. Taney, who was altogether sympathetic to slavery and to secession, challenged the new President’s suspension of the writ of habeas corpus in Maryland as it teetered on the brink of secession. He turned a constitutional phrase into a challenge to Lincoln: One who has sworn to “take care that the laws be faithfully executed,” said the Chief Justice, should not himself violate those laws.
Lincoln would make a famous response in his message to a special session of Congress on July 4, 1861:
[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest one be violated?...Would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?
The distinguished 20th century constitutional lawyer Edward Corwin would write that this reference to the oath is “the outstanding precedent…for treating the oath as a source of power” and that Lincoln permanently recruited power for the presidency, “recruited it, that is, from the presidential oath.”
But is it not a rather curious foreshortening of the meaning of an oath to treat it as a “source of power?” Is not the word “recruit” rather an odd choice of verb in this connection?On its face, as lawyers say, an oath is not a distribution of power but a moral commitment, a heightened promise, a solemn engagement of the self set in some frame of ultimate obligation. If there is any “recruiting,” then, it is the moral agent who is recruited, and seriously engaged, to conduct himself in a specified way. Surely, one should deal with it in the realm of the rights and wrongs of human conduct before one inquires what that might mean in the realm of power.
Lincoln would write in 1864:
Nor was it my view that I might take an oath to get power, and break the oath in using the power.
The oath was a moral definition and a limitation of his conduct.
Others would point to the immense power that in that moment came into his hands; he would point instead to the constraining duty that was antecedent to the power, and the reason for the power.
Lincoln would be required by his oath to do things that he would not have done as a private citizen, and was prevented by his oath from doing other things that he would have done as a private citizen.
In the draft of “all the laws but one” passage in the message to the special session, he had written in the first person so that the requirements that the oath placed upon him personally, as a responsible moral agent, are more forcefully expressed. He wrote:
I should consider my official oath broken, if I should allow the government to be overthrown, when I might think the disregarding of a single law could tend to preserve it.
William Lee Miller is a scholar in Ethics and Institutions at the Miller Center of Public Affairs at the University of Virginia-Charlottesville. He also has taught at Yale University, Smith College and Indiana University. He is the author of Lincoln’s Virtues: An Ethical Biography, which was published in 2002 and received awards from the Abraham Lincoln Institute, the Lincoln Group of New York and the Civil War Round Table. This is an excerpt of a speech he delivered in October as part of the 2004 Lincoln Legacy Lecture Series, “Ethics & Power,” ”sponsored by the Center for State Policy and Leadership at the University of Illinois at Springfield. DVDs of the entire lecture series are available through the Center by calling 217-206-7163.
Illinois Issues, January 2005
