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The Election of 1800
and the Election of 1860
Our popular government has often been called an experiment. Two points in it our people have already settled—the successful establishing and the successful administering of it. One still remains—its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided, there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections.
Thus Abraham Lincoln wrote, nearing the conclusion of his July 4, 1861, Message to Congress in Special Session. When Lincoln sent this message, Fort Sumter had been attacked (April 12) and had surrendered (April 14). Lincoln had thereupon issued his call for 75,000 troops, instituted the federal blockade of Southern rebel ports, and suspended the writ of habeas corpus. The Civil War had begun.
In his July 4 Message, Lincoln carefully elaborated the reasons why the rebellion had to be suppressed by force of arms. The first and most comprehensive reason was that it presented
to the whole family of man, the question, whether a constitutional republic, or democracy—a Government of thepeople, by the same people—can, or cannot, maintain its territorial integrity, against its own domestic foes.... It forces us to ask: "Is there, in all republics, this inherent and fatal weakness?" " Must a Government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"
Second, it was necessary, he said, to vindicate the Union against the "ingenious sophism" that "any State of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union or of any other State." Lincoln held that the alleged constitutional right of secession, as distinct from the natural right of revolution, was a prescription for anarchy. Third, it was necessary, as Lincoln put it in the epigraph of this chapter, to vindicate the principle of free elections. It was necessary to use bullets to establish the right, not of bullets, but of ballots to decide who should rule.
It will, I believe, prove to be true that in Lincoln's mind the idea of a popular government that unites liberty and order, the idea of the Union, and the idea of rule by free elections are one and the same. Their inner unity may be said to resemble the Trinity, the three persons of God in Christian doctrine. But it is important, as in the case of Christianity, to understand the reasons for the distinctions within that threefold unity.
* * *
That the legitimate authority of government is founded upon the sovereignty of the people, expressed in free elections under conditions of universal suffrage, is a proposition that is today virtually undisputed in Western civilization. In the world that witnessed the American Revolution, however, it was, to say the least, an idea still struggling to be born. In the world that witnessed the American Civil War, it was an idea whose meaning was fundamentally disputed and whose acceptance was unresolved.
If we are to understand our past as those who lived it understood it, we must free ourselves of any illusion that the kinds of elections we now consider to be the only foundation of legitimate government are the usual or customary foundation of human government. That there "can be no successful appeal" from the ballot box as a means of deciding who shall govern, "except to ballots themselves, at succeeding elections," was the principle by which Lincoln, at the outset of the Civil War, justified the use of force to preserve the Union. But the idea of deciding who should govern by means of a free election by a whole people was something that the world had never known before the American Revolution. Most of mankind has always lived under what we, the heirs of the Founding Fathers and of Lincoln, call tyrannies. These tyrannies have differed among themselves. Recently, for example, we have been instructed in the differences between authoritarian and totalitarian regimes. No doubt this difference matters greatly to those who live under such regimes, just as it mattered during the Roman Empire whether one lived under a Marcus Aurelius or a Nero or Caligula. But it is well to remember that no subjects of the Roman emperors, whether the good emperors or the bad, had anything to say as to who that emperor was. It was the officers of the Praetorian Guard—the "colonels" of the army that ruled the empire of the Caesars—who decided who Caesar would be.
Nor did the phenomenon of appealing to ballots alone in deciding who should govern emerge immediately as a consequence of the American Revolution. Indeed, we know of no example before 1800 of a government in which the instruments of political power passed from one set of hands to those of their most uncompromisingly hostile political rivals and opponents because of a free vote. The electoral contest of 1800 climaxed a decade of party warfare. The election of 1796, the first following the retirement of Washington (whose election had been virtually uncontested), was bitterly fought, but the incumbent party retained office. The political conflict intensified in the next four years, and its rhetoric exceeded in acrimony any in subsequent American political history, including that of the elections preceding the Civil War. Yet when the votes of 1800 (and 1801) had been counted and the election decided according to the forms of the Constitution, the offices were peacefully vacated by the losers and peacefully occupied by those who had prevailed. Nor were any of the defeated incumbents executed, imprisoned, expropriated, or driven into exile, as were the losers in the English civil wars and in the political contests of the Rome of Cicero and Caesar. The defeated Federalists went about their lawful occupations unmolested and for the most part engaged in the same kind of political activity in which their opponents had previously engaged. Again, to the best of our knowledge, this was the first time in the history of the world that such a thing had happened.
It is natural at this point to ask, Why did those who failed to carry the presidential election of 1860 not accept the outcome of that election, as did the defeated Federalists of 1800? This question is necessary and proper. It must be preceded, however, by the question of how the astounding precedent of 1800 itself was established. A break with all previous human history is even more in need of explanation than a break with a precedent of only threescore years. What was it that persuaded or enabled Americans in 1800 to discover in free elections the basis, not merely for choosing a government, but also for choosing a government from one of two bitterly contending parties? More particularly, what enabled them to accept the results of an election in which each of the rival parties charged the other with being subversive of that form of government for which the American Revolution had been fought? Was compliance with the results of the voting in 1800 an acceptance of the idea "that ballots are the rightful and peaceful successors of bullets"? Or was Lincoln in 1861 placing an interpretation upon an event as governed by reason and principle that was in truth merely the fortuitous outcome of prevailing circumstances?
The decision for political change heralded by the Declaration of Independence was authorized by a representative legislative body. But can we look upon it in the light of a decision made in consequence of a free election? In a famous letter to Henry Lee in 1825, in which Jefferson went to greater lengths than anywhere else to explain the purposes of the Declaration, he wrote that "with respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American whigs thought alike on these subjects." While American Whigs may have thought alike, what of the Tories? In fact, those called Tories in the American Revolution suffered a fate not unlike that customary for defeated partisans throughout the ages. There were many instances of mob violence against them and of the destruction and confiscation of their property. It has been estimated that there were proportionately more refugees from the American Revolution than from the French Revolution. Indeed, British Canada has its origins largely in the emigration thus begun. Few of the émigrés were able to recover, or be indemnified for, their lost property, even though diplomatic attempts were made after the war to provide redress.
From Jefferson's perspective, it would appear that only those who were "American whigs" within his meaning could be considered part of the political universe with respect to which majority rule would be possible. This means that had a plebiscite on independence been possible in 1776, Whigs would (if they could) have excluded Tories from the vote! What constituted an "American whig" was accordingly defined by the statement of principles in the Declaration of Independence, most notably by the passage beginning, "We hold these truths to be self-evident." We may therefore say that from the perspective of the Revolution, a free election can be conducted only among "Whigs"! And the acceptance of the idea of human equality, as that idea was comprehended within "the laws of nature and of nature's God," would appear to be the necessary condition par excellence for defining who might participate in a free election, and hence who might be expected peacefully to abide by its results. Only those can willingly submit to the results of an election who see it as a means of deciding how "to secure these rights." But the rights to be secured, which include "life, liberty, and the pursuit of happiness," are understood a priori to be the equal rights of everyone, those who vote with the minority no less than those in the majority. A community can conduct elections with the expectation that all parties will accept the results only if the elections are preceded by a mutual recognition of the equal rights of the participants. But the rights of the participants in an election are rights under positive law. That the positive law should be one of equal rights can itself be understood as a necessary inference from the antecedent equality that subsists under "the laws of nature and of nature's God."
One cannot imagine the issue that divided the Americans and the British Crown and Parliament being decided by a vote. In effect, this would have meant deciding whether or not to accept the Declaratory Act of 1766, which asserted that
the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.
The "American whigs" of 1776 regarded the Declaratory Act to be, in principle, an assertion of a right to exercise despotic power over them. They would have seen a vote to accept it as a vote to accept slavery. Can anyone be asked to vote to enslave himself? Is not the very idea of an election to decide such a question an absurdity? Is it not also evident that someone for whom death is preferable to slavery cannot regard as a fellow citizen someone for whom slavery is an acceptable option? To be a fellow citizen means not only to be able to accept the results of a free election but also to be willing to fight to preserve, protect, and defend the regime of free elections. A community of citizens is a community of those willing to fight for each other. Someone who will not fight for you, when you are willing to fight for him, cannot be your fellow citizen.
* * *
A great deal has been written in support of the view that, in the American Revolution, the Americans were fighting primarily and essentially to defend their rights as Englishmen under the positive law of the British constitution. A leading exponent of this point of view is Russell Kirk, who writes:
Until 1776, protesting Americans had pleaded that they were entitled to the rights of Englishmen, as expressed in the British constitution, and particularly in the Bill of Rights of 1689. But Jefferson's Declaration of Independence had abandoned this tack ... and had carried the American cause into the misty debatable land of an abstract liberty, equality, fraternity.
Unlike Kirk, Professor Daniel Boorstin, librarian of Congress emeritus and a distinguished scholar of American history, sees no difference between the earlier American arguments and the one set forth on July 4, 1776. The "object" of the Revolution, he writes, "as Thomas Jefferson expounded it in his Summary View of the Rights of British America (1774) ... and then in the Declaration of Independence, was to vindicate the rights of Englishmen under the British Constitution." Of course, the refusal to accept the Declaratory Act could be understood to mean no more than that the Americans rejected second-class citizenship and that they would have been satisfied with the same kind of representative government enjoyed by the subjects of the Crown in the United Kingdom.
Let us then turn to Jefferson's Summary View, to see whether there is continuity or difference in the authoritative arguments of Americans in the Revolution. Above all, let us inquire into the relationship, in Jefferson's understanding, between the rights of Englishmen under the British constitution and the rights of man under the "laws of nature and of nature's God." Let us see how and why, according to Jefferson, the rights of the people were recognized by the British constitution. And let us consider how, or whether, such recognition led to Lincoln's conclusions concerning the role of free elections as a means of deciding who should rule in a popular republic. Is it really possible for ballots to replace bullets in the presence of fundamental differences concerning the purposes of the regime?
* * *
The Summary View of the Rights of British America was published in August 1774, nearly a year before the beginning of the American Revolution. It was prepared for a meeting of the Virginia revolutionary convention, which was in fact the House of Burgesses, reelected and reconvened after its dissolution by the royal governor. Jefferson hoped that the convention would instruct the Virginia delegates to the Continental Congress to press for the adoption of the Summary View by that Congress. It was never actually adopted by either legislative body, being deemed too radical for that moment. But it was ordered to be published, was widely circulated in England as well as America, and came to be regarded, deservedly, as the classic expression of the American cause on the eve of the Revolution. It almost certainly was a major reason that Jefferson was chosen as a draftsman (with John Dickinson) of the Declaration of the Causes and Necessity of Taking Up Arms in July 1775 and a year later of the Declaration of Independence. Indeed, the latter can be regarded as essentially an epitome of the Summary View.
The Summary View is in the form of a resolution of the Continental Congress, expressing the opinion of all thirteen colonies. We shall speak of it, however, as Jefferson's work and as an expression of Jefferson's views, however much they may, at the time, have been unofficial. Over time, these became the quintessentially American views, which is why Abraham Lincoln looked to Jefferson more than to anyone else for his understanding of the American Revolution.
In addressing the king on behalf of the "colonies," Jefferson refers to the latter, from time to time, as "States." As we shall see, the Summary View embodies a Whig view of the British constitution that was in certain respects so radical that its validity would have been conceded by very few Englishmen of Jefferson's generation, and certainly by none of those who were advising the king. Those conservatives who today look to Burke's celebration, in his writings on the French Revolution, of the eighteenth-century British constitution (and of the quasi-feudal social order it encompassed) will not recognize it in Jefferson's "American whig" version. Reading the Summary View today, one can sense that the Fourth of July is just around the corner.
It is true that the American demands upon the king are portrayed by Jefferson as authorized by British constitutional law and precedents. But Jefferson's understanding of such law and precedents is distinctively Jeffersonian. At no point is the authority of the British constitution derived from prescriptive or historic right, as distinct from, and opposed to, natural right. Right is prescriptive only insofar as the right that is inherited is itself natural in its genesis and its reason. It is also true that the stated (or prudent) objective of the address is reconciliation. But the tone and manner in which it speaks to the king is one of independence.
The Summary View begins by complaining to the king that the "humble application to his imperial throne" made in the past by "his States," acting individually, has gone unanswered. Now the states' "joint address" will be "penned in the language of truth, and divested of those expressions of servility, which would persuade his Majesty that we are asking favors, and not rights." At the beginning of a great tradition, Jefferson thus adopts the language of Union and Liberty (or Equality) as one and inseparable. The king must realize, he says, that it is rights, not favors, for which the "states of British America" ask recognition and redress:
[T]his his Majesty will think we have reason to expect when he reflects that he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great engine of government, erected for their use, and, consequently subject to their superintendence.
To speak of the "chief officer of the people" suggests a republic rather than a monarchy and an office more like America's constitutional presidency than a hereditary monarch. We must also wonder at the bland euphemism in the phrase "appointed by the laws." The laws do not appoint. The laws can only prescribe how someone is to be appointed. Jefferson is here evading rhetorically the fact that this "popular" official is not appointed (or elected) by those for whose sake his office is said to exist.
But how can this hereditary monarch be "subject to [the] superintendence" of the people, when he is neither elected nor removable by any peaceful constitutional process? Jefferson's logic seems to proceed first by attributing (hypothetical) legitimacy to the British constitution and then by recognizing no other ground of legitimacy than the sovereignty of the people. Ergo: the British constitution is based upon the sovereignty of the people! Jefferson seems to be saying that in principle, if not in fact, Britain is a republic under the forms of a monarchy.
Here, according to Jefferson, is how the people had exercised their "superintendence" over their kings during the constitutional crises of the seventeenth century.
A family of Princes was then on the British throne, whose treasonable crimes against their people, brought on them, afterwards, the exertion of those sacred and sovereign rights of punishment, reserved in the hands of the people for cases of extreme necessity, and judged by the constitution unsafe to be delegated to any other judicature.
In 1774, writing as a Whig in the British tradition, Jefferson assumed that it was the natural right of revolution—which here meant plainly the right to kill the king when the people judged him to have become a tyrant—that acted as the inducement to constitutionally correct behavior. Certainly at that time there was no idea on the political horizon of an election of the "chief officer of the people" by the people as the means of assuring that he serve their interests. Not until his inaugural address in 1801 would Jefferson see the right of free election as the normal and peaceable fruit of the right of revolution. But by Jefferson's theory, the right of revolution would forever underlie the right of free election and would supply a compelling reason why governments ought to have such elections as authentic expressions, not only of the people's will, but also of those rights that are the authority for the people's will. That is to say, the wholesome fear of the people by governments would also be a wholesome fear informing the majority in its dealings with minorities.
In Lincoln's first inaugural address, threescore years after Jefferson's, Lincoln would be very careful, while denying any validity to the alleged constitutional right of secession, to insist on recognizing the natural fight of revolution. He would concede that there could be occasions on which a minority might be justified in having recourse to that right (as he had once argued on behalf of the Texans' revolt against Mexican misgovernment) if there was a real threat to deprive them of any of their fundamental rights. He would be at great pains, however, to argue that this was not the case in 1861. In the absence of any such threat, the right of revolution gave no moral sanction to secession. On the contrary, the right of revolution, being a right of the people, supported his election by the people. In such a case, the right of revolution became the right of the majority to suppress the rebellion against its legitimate authority.
* * *
Expounding the rights of British Americans in their relationship to the rights of those in the mother country, Jefferson reminds the king
that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness.
What our ancestors had done in coming to America, Jefferson continues, was no different from what their ancestors had done before them. In emigrating to Britain,
their Saxon ancestors had, under this universal law, in like manner, left their native wilds and woods in the North of Europe, had possessed themselves of the Island of Britain, then less charged with inhabitants, and had established there that system of laws which has so long been the glory and protection of that country.
Let us notice first that the British constitution itself arose from "a right [under universal law] which nature has given all men." That right is primarily and essentially a natural right to liberty. It is a right of all men to leave the country "in which chance, not choice, has placed them." Where a man is born may be a matter of chance. Where and how he is to live, however, are (and of right ought to be) matters of choice. But they are not random choices. They are choices guided by reason. In seeking new habitations and establishing new societies, under laws that they have agreed to, men act in such manner as to them "shall seem most likely to promote public happiness." Happiness is the objective good, and therefore the rational good, at which all laws and institutions aim. This is assumed by Jefferson, here and elsewhere, no less than by Aristotle, as it was by American public opinion of the Revolutionary generation.
A great deal has been written to the effect that because the Declaration of Independence speaks of a right to "the pursuit of happiness," rather than a right to happiness, happiness itself must be something subjective, something each individual should be free to pursue in his own idiosyncratic manner. The implication is that happiness cannot be a goal of public policy, since there is neither an agreement as to what it is nor a means of proving any one opinion on this question to be superior to any other. A free government is therefore looked upon as one that enables each individual to pursue happiness as he thinks fit to do, in as unrestrained a manner as possible. But what is idiosyncratic is private, and Jefferson speaks in the Summary View of public happiness. The Declaration itself speaks not only of the unalienable right to the pursuit of happiness, with which each individual has been endowed by his Creator, but also of the "safety and happiness" which each people collectively attempts to secure when it institutes new government. Clearly, whatever is uniquely individual in the private pursuit of happiness must be consistent with the public happiness and must fit within its framework.
In a letter in 1819, Jefferson avowed his distrust of an "independent" judiciary as the final authority on the meaning of the Constitution. "Independence can be trusted nowhere but with the people in mass," he wrote, adding that the people "are inherently independent of all but moral law." Likewise, near the end of the Summary View, Jefferson tells the king in a most peremptory way that "The great principles of right and wrong are legible to every reader." And again: "The whole art of government consists in the art of being honest." Although Jefferson believed in safeguards against the abuse of power by the people, no less than by anyone else, he also was convinced that the people "in mass" had a greater interest than anyone else in governmental honesty. Lincoln echoed Jefferson's convictions when he asked, in his first inaugural address, "Why should there not be a patient confidence in the ultimate justice of the people?" But however independent of all earthly authorities the people may have been, they were not, according to Jefferson, independent of the "moral law." They too were to be measured against the great standards of right and wrong. Lincoln also made it clear that his confidence in the justice of the people was not unconditional but depended upon their retaining "their virtue and vigilance." One might say that concern with the virtue and vigilance of the people was of the essence of statesmanship, according to Jefferson and Lincoln. In what they understood by a "people," subordination to the "moral law" and the demands of "virtue" was implicit. The people could not promote public happiness if they did not have a due regard for virtue and the moral law in their private lives. No one ever asserted this more categorically than George Washington, in his inaugural address.
[T]he foundation of our national policy will be laid in the pure and immutable principles of private morality ... since there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness; between duty and advantage; between the genuine maxims of an honest and magnanimous policy and the solid rewards of public prosperity.
As in the tradition of Plato's Republic, public virtue, and therefore public happiness, is private virtue writ large.
That the "great principles of right and wrong" were "legible to every reader" meant that they were knowable to the unassisted reason of any human being of ordinary, but uncorrupted, intelligence. Certainly they were as legible to peoples as to kings. And to repeat, there could be no idea of happiness, whether individual or public, inconsistent with virtue and the moral law. While the chance may have been greater of there being virtue in the people as a whole than in any of the parts, especially the governmental parts, it is not something guaranteed apart from the application of the political art, "the art of being honest." In a government of the people, the art of being honest must be the people's art.