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Thomas Dixon’s

A Man of the People

:How Lincoln Saved the Union by Cracking Down on Civil Liberties

Brook Thomas

Abstract.

This essay shows how Thomas Dixon’s

play,

A Man of the People: A Drama ofAbraham Lincoln,

uses Lincoln’s crackdown on civil liberties during the Civil War to supportWoodrow Wilson’s crackdown during and immediately after World War I. Especially relevant isDixon’s fictionalization of Lincoln’s role in the case of Clement L. Vallandigham, the notoriousOhio Copperhead. Dixon’s play is both typical and unique. Typical because it uses popular compo-nents of the Lincoln legend that continue to be used to justify the curtailment of civil liberties today.Unique because it adds elements to that legend that reveal the particular dangers of Dixon's populistpolitical vision, dangers that go beyond his notorious racism.

Keywords:

Thomas Dixon, Abraham Lincoln, Clement L. Vallandigham, civil liberties, John W.Burgess, Clinton Rossiter

In July

Thomas Dixon’s

A Man of the People: A Drama of Abraham Lincoln

opened in Chicago, followed by an engagement in New York. Dixon is, ofcourse, the infamous author of an early twentieth-century trilogy of Recon-struction novels that formed the basis for D. W. Griffith’s

Birth of a Nation

.Almost universally condemned today, that trilogy, especially

The Clansman

,continues to get substantial critical attention as the country tries to come toterms with its racist past. In contrast, Dixon’s play about Lincoln has beenalmost totally neglected, so much so that the only two critics who give it anyattention at all read it so carelessly that they confuse important parts of its plot.

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Nonetheless, at this time, when the nation, as it periodically does, tries tobalance the needs of national security against constitutional guarantees to pro-tect civil liberties,

A Man of the People

deserves another look. A major debatein the

presidential campaign was over Woodrow Wilson’s crackdown oncivil liberties during and immediately after World War I. Dixon intervenesinto that debate by dramatizing a crucial moment in Lincoln’s reelection cam-paign of

. A vital part of his plot is a fictionalized account of the mosthighly publicized civil liberties dispute of the Civil War: the case of ClementL. Vallandigham. Vallandigham was a vocal critic of the administration, whowas rumored to be the leader of a secret society intent on bringing down thegovernment. Accused of expressing sympathy for the South, he was arrestedby the military and tried and convicted by a military commission even thoughcivil courts were open in his home state of Ohio.

Given Dixon’s racism and his love of the South, it might seem that hewould side with this alleged southern sympathizer against the Great Emanci-pator. But he does not. Instead, he uses Honest Abe to justify Wilson’s standon civil liberties over a half a century later. To reread

A Man of the People

is,therefore, to complicate standard understandings of Dixon, who for manytypifies southern racism during the era of segregation.

More, however, is at stake than a fuller understanding of a notoriousauthor. Dixon is not alone in evoking Lincoln to justify a crackdown on civilliberties during a time of national emergency. Members of the Bush adminis-tration do so as well. When they do, they can appeal to a long list of respectedlegal scholars and political scientists who have done the same.

2

Demonstratinghow the Lincoln legend can be marshaled to such effect,

A Man of the People

isa discomforting reminder that, as much as we would like to dismiss Dixon’sunsavory political vision as idiosyncratic, it has more in common with thepolitical mainstream than we would like to admit. At the same time, not alluses of the Lincoln legend, even those justifying limits on civil liberties, are thesame. As much as Dixon draws on standard views of Lincoln, he shapes theminto his own peculiar plot. Identifying what is unique about his Lincoln canhelp us isolate aspects of his political vision that are particularly dangerous.

* * * * *

According to Barry Schwartz, “Lincoln was the nation’s preeminent his-torical figure at the end of World War I.”

3

Numerous speeches, newspaper

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Thomas Dixon’s

A Man of the People

articles, sermons, and cartoons had depicted him as the nation prepared forwar. The Committee on Public Information and private corporations dis-tributed posters citing the last line of the Gettysburg Address. A popularsong was “Abraham Lincoln, What Would You Do?” Speculating on rea-sons for the success of John Drinkwater’s

play

Abraham Lincoln

, areviewer wrote, “We have a well defined suspicion that if one were to pullthe beard from Drinkwater’s

Abraham Lincoln

he would find WoodrowWilson.”

4

The frequent parallels drawn between Lincoln and Wilson,according to Schwartz, connected “Wilson’s measures to the sacred narrativeof the nation.”

5

References to Lincoln especially promoted national unity. At the

ded-ication of the Lincoln Memorial, Union and Confederate veterans stood sideby side, while President Warren B. Harding noted that Lincoln would havebeen thrilled to know that “the states of the Southland joined sincerely in hon-oring him.” Former president and Chief Justice William Howard Taft addedthat the new memorial signaled the final restoration of “brotherly love”between North and South.

6

Lincoln united Republican and Democrat as wellas white Northerner and Southerner. Harding and Taft could praise him as thefirst Republican president, while Wilson could evoke him as a model for hisprogressive reforms. Indeed, he was seen as the first progressive.

Peter Karsten claims that Lincoln’s reputation rose in the early part of thetwentieth century because progressives used him to bolster their effort to havean increasingly centralized and powerful state solve the nation’s problems. Inthe nineteenth century, Jefferson had been a prime symbol for local antistat-ism. But in the early twentieth century, “The Apostle of Liberty” was deni-grated by Theodore Roosevelt as “weak and vacillating.” Lincoln, in contrast,was praised for his steadiness in stormy times and for an “iron will” that gotthings done.

7

Combined with the image of him as a man of the people, thatability made him a darling of progressives. As Schwartz puts it,

Different men of the past and present, including Alexander Hamilton andTheodore Roosevelt, symbolized different aspects of America’s new industrialdemocracy. Lincoln stood above them in the popular imagination not becausehis life lent itself to becoming a symbol of the majesty of the state but because ithad already become a symbol of the majesty of the people. In a society wherefear of expanding state power was sustained by a strong libertarian tradition, theman personifying the priority of the state and its elites would not be revered ifhe did not also personify the entitlements of the masses.

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It is Lincoln’s ability to be simultaneously a man of the people and a strong,but morally righteous, executive that makes him so important for Dixon.Indeed, Dixon’s Lincoln has many of the characteristics of the early twentieth-century Lincoln described by Karsten and Schwartz. Because, in

The Clans-man

, Dixon gives us a Lincoln so sympathetic to the South, critics too oftenassume that his view of Lincoln is outside the mainstream. In fact, both theLincoln of

The Clansman

and of

Birth of a Nation

are the Lincoln of earlytwentieth-century progressivism, a Lincoln who lay the foundation for amore powerful federal state deemed necessary to guide a modern nation.

9

Ifanything, Dixon could claim to be ahead of the curve. Concrete plans for theLincoln Memorial were hatched during the

Lincoln centennial, but dis-cussion of it began soon after the Spanish-American War with proposals toturn Washington, D.C., into a capital appropriate for the new Americanempire. Unlike most Southerners, Dixon was a staunch supporter of Americanimperialism, and felt that Northern and Southern troops fighting together inthe Spanish-American War signaled the rapprochement of white North andSouth that Harding and Taft would later celebrate. Indeed, Dixon lionizesLincoln in his Reconstruction trilogy for helping to make a modern, imperialistnation-state possible.

Similarly, whereas most were reluctant to compare Wilson to Lincoln solong as the Virginian hesitated to enter World War I, Dixon in

dedicated

The Southerner: A Romance of the Real Abraham Lincoln

to “our First Southern-Born President Since Lincoln, My Friend and Collegemate: WoodrowWilson.”

10

Much of the plot of his

play comes from his

novel. The play,however, focuses on only late August and early September

, when Lincolnseemed doomed to lose the

election. By directly addressing Lincoln’scrackdown on civil liberties, Dixon hoped to influence the

election.

* * * * *

Civil liberties emerged as a major issue during that election because Wilsonhad come to believe that the only way to contain the enemy’s “warfare by pro-paganda” was to criminalize various forms of protest and dissent.

11

Initially anadvocate for neutrality, Wilson had been criticized by Theodore Roosevelt forinadequately preparing for war. Thus, when Dixon, Wilson’s friend fromgraduate school, wrote him about

The Fall of a Nation

, a proposed novel and


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A Man of the People

film urging preparedness, Wilson responded that it was “a great mistake.There is no need to stir up the nation in favor of national defense. It is alreadysoberly and earnestly aware of its possible perils and of its duty, and I shoulddeeply regret seeing any sort of excitement stirred in so grave a manner.”

12

Dixon went ahead anyway, and both novel and film came out in

. In thesame year, faced with a re-election campaign, Wilson committed himself topreparedness. When that commitment was questioned by many, includinganarchists, socialists, pacifists, isolationists, and “hyphenate” Americans,especially German-Americans and Irish-Americans, they were consideredunpatriotic. As Paul Murphy summarizes, “Preparedness advocates … werequick to lump such people together as a ‘common enemy,’ questioning theirpatriotism and their commitment to the nation’s highest values.”

13

Insistingthat “Americanism” be the theme of his campaign, Wilson personally helpedto draft the party platform on loyalty.

After the election, Congress passed the Espionage Act of

, which wasamended May

,

, by the Sedition Act. Less than a month before thearmistice, an Alien Act was passed that toughened existing legislation againstanarchists and those associated with them. Numerous arrests were madeunder these laws. In addition, the government enlisted the aid of private orquasi-official bodies, such as the American Defense Society, the NationalSecurity League, the Home Defense League, the Knights of Liberty, the BoySpies of America, and the Sedition Slammers. The American ProtectiveLeague was especially effective. Its civilian volunteers amassed evidence,often through dubious means, of those who did not properly support the wareffort and then conducted “slacker raids” to detain the disloyal.

Although in official statements Attorney General Gregory cautionedagainst suppressing “honest, legitimate criticism or discussion of governmentpolicies,” his office encouraged aggressive enforcement of the new laws. Fur-thermore, by calling the greatest menace to the country, not the German spy,but the “respectable” pacifist, he fed wartime hysteria.

14

The legal profession,for the most part, supported the crackdown. April

the American BarAssociation unanimously endorsed Elihu Root’s condemnation of efforts

to hinder and embarrass the government of the United States in carrying on thewar with vigor and effectiveness . . . Under whatever cover of pacifism or tech-nicality such attempts are made, we deem them to be in spirit pro-German andin effect giving aid and comfort to the enemy.

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Charles Warren, who would go on to win the Pulitzer Prize for his history ofthe Supreme Court, was an Assistant Attorney General who helped draft leg-islation and wrote a law review essay with an extremely broad definition of“giving aid and comfort to the enemy.”

16

Highly respected constitutionalscholar Edwin Corwin helped edit a

War Cyclodepia

for the administration’spropaganda arm, the Committee on Public Information. It gave wartime def-initions of “free speech,” “freedom of the press,” “espionage,” and “sedition.”

To be sure, there were exceptions. In

Roger Nash Baldwin created the“Civil Liberties Bureau” of the American Union Against Militarism, whichbecame the American Civil Liberties Union. Baldwin mistakenly claimed thatthe Bureau marked “the first time that the phrase ‘civil liberties’ had been used inthe United States.”

17

In addition, Zechariah Chafee, Jr., wrote important essaysin

The New Republic

and the

Harvard Law Review

that he expanded into the influ-ential

Freedom of Speech

, published the same year as Dixon’s play. His book con-tains a long chapter on the trial of Jacob Abrams, prosecuted under the EspionageAct. Abrams’s trial led to Justice Holmes’s famous dissent in

Abrams v. UnitedStates

(

) after he had used his “clear and present danger” standard to upholda conviction under the Espionage Act in

Schenck v. United States

(

).Participants in the civil liberties debate frequently evoked the authority of

Lincoln. Having suspended habeas corpus and allowed the arrest of numeroussuspected southern sympathizers during the war to save the Union, he servedas a precedent justifying Wilson’s actions during the war to make the world safefor democracy. In

, Wilson ended his last speech to Congress by quotingLincoln: “Let us have faith that right makes might, and in that faith let us dareto do our duty as we understand it.”

18

In the same year, George Creel, the headof the Committee on Public Information, also appealed to the authority ofLincoln. Lincoln, he noted, “made the following election statement”:

There is an important sense in which the government is distinct from the admin-istration. One is perpetual, the other is temporary and changeable. A man maybe loyal to his government and yet oppose the peculiar principles and methodsof the administration . . . It is true, however, that in time of great peril, the dis-tinction ought not be so strongly urged; for then criticism may be regarded bythe enemy as opposition, and may weaken the wisest and best efforts for publicsafety. If ever there was such a time, it seems to me it is now.

19

Similarly, William Dunning, the famous historian whose work along with thatof his students influenced Dixon’s understanding of Reconstruction, wrote an


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A Man of the People

essay for the

American Historical Review

comparing Wilson’s and Lincoln’streatment of “disloyal civilians.”

20

Others, however, used the Civil War to criticize actions during World WarI. For instance, a number of times, Chafee cites with approval

Ex parte Milli-gan

, an

case that unanimously declared unconstitutional Lincoln’s prac-tice of trying suspect civilians in military tribunals even when civil courts wereopen. As Justice Davis put it, “A country, preserved at the sacrifice of all thecardinal principles of liberty is not worth the cost of preservation.”

21

Soonafter World War II, Allan Nevins claimed that

Milligan

was “a great triumphfor the civil liberties of Americans in time of war or internal dissension.”

22

Butnot everyone agreed.

Corwin attacked what he considered the inflated rhetoric of Justice Davis’sprincipled opinion with, “To suppose that such fustian would be of greaterinfluence in determining presidential procedure in a future great emergencythan precedents backed by the monumental reputation of Lincoln would bemerely childish.”

23

Warren would seem to confirm Corwin’s claim. In hishistory of the Supreme Court that came out soon after World War I, he notedthat

Ex parte Milligan

had been “long recognized as one of the bulwarks ofAmerican liberty” and “a palladium of the rights of the individual.”

24

But, dur-ing the war, he had urged the War Department to handle the threat of sabotage.“One man shot after court-martial,” he told Attorney General Gregory, “isworth a hundred arrests by this Department.”

25

He also drafted a bill, whichwas never passed, that would have tried in military courts people accused ofinterfering with the progress of the war.

26

Based on his play, it is clear thatDixon would have supported Warren’s bill.

* * * * *

The play begins with a Prologue taken directly from

The Southerner

thatdramatizes Lincoln’s promise to his dying mother to remember that “you canbe a great man in this free country if you only say—I will.”

27

As a HistoricalNote tells us, the body of the play was inspired by a letter written August

,

, by Lincoln’s secretary Colonel John Nicolay to his other secretaryMajor John Hay. Nicolay reports that Henry Raymond, editor of the

NewYork Times

, and the Republican National Committee are in town to insist on acommission to Richmond. The letter ends: “Weak-kneed damned fools are in


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the movement for a new candidate to supplant the President. Everything isdarkness, doubt, and discouragement.”

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Act I takes place in Lincoln’s room in the White House with the presidentabout to receive Raymond and the Committee. But first Dixon establishesLincoln as “a man of the people” by having him refuse to see the Committeeor members of Congress until he has taken his “bath of public opinion”

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bylistening to the common folk for whom he is always available. Hearing theconcerns of these “real men and women . . . tones [him] up for the day’swork.”

30

A man of incredible mercy, Lincoln is in trouble with his generals forissuing too many pardons. The second line he speaks is: “And don’t forget thatno man or woman can be turned from that door, who comes here to ask for thesaving of a human life.

31

For the development of the plot the most important“real” person he receives is a Pennsylvania Dutch woman pleading for the lifeof her brother condemned to be shot for desertion. The boy, it turns out, hadfollowed the advice of a pamphlet called “Why Should Brothers Fight?” byRichard Vaughan. Lincoln pardons her brother but vows to hang the author ofthe book that led him astray.

Having received “medicine for both body and soul” from the people,Lincoln is “rested”

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and ready to take on Raymond and the RepublicanNational Committee. Because of Lincoln’s unpopularity and his conduct ofthe war, the Committee asks him to withdraw from their ticket. Making it clearthat the “only question” is “Can [I] save the Union,”33 Lincoln agrees to givean answer in ten days. The act ends with Lincoln agreeing to see the lover of afriend of his wife later that night and also arranging to have a secret meetingwith his Democratic rival General George B. McClellan.

Act II dramatizes these two nighttime meetings with the entire WhiteHouse staff dismissed. Lincoln wants to meet with McClellan to see if rumorsare true that he is in league with the Copperhead wing of the DemocraticParty. Copperheads were for peace, even if it meant acknowledging the exist-ence of the Confederacy. Most preferred union to division, but felt that furtherhostilities would make it harder for North and South eventually to reunite.Based on a report from a secret agent, Lincoln has evidence that they “proposeto end the war on the night of the election by a revolutionary uprising whichwill result in the recognition of the Confederacy.”34 As he and McClellanspeak, leaders of Copperhead secret societies are, Lincoln warns, “in touchwith the rebel government in Richmond.”35 Given this threat and Lincoln’soverwhelming commitment to save the Union, he promises to withdraw and


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Thomas • Thomas Dixon’s A Man of the People

campaign for McClellan, if his rival promises publicly to denounce the Cop-perhead wing of the party and insist that there can be no peace without preser-vation of the Union. McClellan hesitates, and then responding, “I am sure ofthis election without your help, sir!”36 refuses the pledge, leaving Lincoln toconclude, “Then, sir, you are committed by your pledges to the possible divi-sion of this Union!”37

The second meeting is with Captain Vaughan of Grant’s army. Vaughancomes to plead for his father who has been imprisoned for making a speechagainst the war and for printing it as a pamphlet. Describing to Lincoln howhis father “has been arrested without warrant, is held without bail, and deniedthe right of trial” simply “for exercising the right of free speech,” Vaughanasks for “justice.”38 Lincoln, however, realizes that the pamphlet is the sameone that caused the Pennsylvania Dutch boy to desert and refuses a pardon.Justifying his decision, Lincoln converts Vaughan to his cause. That conver-sion is all the more important because Vaughan, it turns out, is a member of theKnights of the Golden Circle, a secret Copperhead Society. A former memberof McClellan’s staff, he had become so disillusioned by his father’s arrest thathe started to believe Copperhead propaganda about Lincoln’s dictatorialabuse of the Constitution. Indeed, he had planned to assassinate the presidentduring their meeting. But now, choosing the president as a new father-figure,he becomes instrumental in Lincoln’s plan to save the Union.

Because he has been a member of the Copperheads’ inner circle and knows“all their signs and passwords,”39 Lincoln asks him to go as a spy to Richmondposing as his brother who fought for the Confederacy. His job is to gain theconfidence of the Secretary of State and convince him to allow two men previ-ously sent by Lincoln to have an interview with Jefferson Davis. Men of peace,these two want to learn Davis’s terms for peace. Lincoln is sure that for Davisthere can be no peace without division, although his rivals refuse to believe it.Confirmation of Davis’s true position is, therefore, crucial for Lincoln’sre-election campaign. Once that job is finished, Vaughan is supposed to go toAtlanta, scouting the position of enemy troops, and then to work his waythrough Confederate lines to report to General Sherman, who, laying siege tothe city, has been out of contact. A victory in Atlanta would almost certainlyturn the election around by splitting the Confederacy in half and makingmilitary victory certain.

Act III reveals the outcome of these two missions. The first scene takesplace in Davis’s room in the Confederate Capitol and shows Vaughan using


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the signs of the Knights of the Golden Circle to get Lincoln’s men their inter-view. Avoiding suspicion himself, he helps them, with the aid of sympatheticwords from General Lee, escape arrest and imprisonment as spies. The secondscene returns to Lincoln’s room in the White House on the day he has prom-ised to give the Republican National Committee his answer.40 Delaying themeeting, Lincoln anxiously awaits news from Sherman. Just when he can nolonger hold the committee off, the telegram ticks news of Sherman’s victory.With Vaughan’s second mission a success, Raymond exclaims, “It’s glorious.It’s a miracle! Lee’s army can’t survive. The end is sure! McClellan isbeaten—the Union is saved!”41 Likewise, the Committee, with the exceptionof Thaddeaus Stevens, the congressional architect of Reconstruction, wildlycheers Lincoln. The play concludes with an Epilogue of Lincoln’s SecondInaugural and its famous line: “With malice toward none; with charity for all.”

* * * * *

Dixon uses A Man of the People, as he used other works, to clarify chargesthat he was a racist.42 Although he continues to believe that blacks have no rolein a united nation, he is careful to avoid the reprehensible caricatures of theReconstruction trilogy. What he does insist upon is the North’s complicity inslavery and Lincoln’s less than ideal record on civil and political rights forAfrican Americans. The one Congressman allowed to see the president at thebeginning of the play is from Massachusetts. He seeks a pardon for a slavetrader from his state already in prison. Lincoln’s response: “I might pardon amurderer from old Massachusetts, she’s done glorious service in this war––but a man who can make a business of going to Africa and robbing her of help-less men, women and children and selling them into bondage … before thatman can have liberty by any act of mine, he can stay in jail and rot!”43

In addition, Lincoln receives “three well-dressed colored men.”44 Callinghim “Our Father Abraham,”45 they promise to advance his plans for coloniza-tion. Dixon also points to the irony that Lee had freed his slaves while Grantthrough his wife ’s estate was a slaveholder. Dixon even has Lee propose thatthe only way for the South to survive would be immediately to “begin to armand drill , negroes for my command.”46 This proposal by Lee doesmore than combat the image of spineless and cowardly African AmericansDixon created in his trilogy.47 It also helps him make an important point about


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Lincoln. As he tells us in his Historical Note, “The first policy of his adminis-tration was to save the Union,” not to end slavery. “His proclamation ofemancipation was purely an incident of war.”48 “What I do about slavery andthe colored race, I do because I believe it helps save this Union,” Lincoln pro-claims to the Republican National Committee, which criticizes him for notfreeing slaves in the border states.49 Committee members from Maryland,Kentucky, and Missouri immediately confirm that their states would have leftthe Union if he had included them in the Emancipation Proclamation.

Simultaneously addressing critics who saw him focused only on issues ofrace and those who saw Lincoln as the Great Emancipator, Dixon wanted hisplay to show that, for him and Lincoln alike, the primary goal was to create aunited nation. More than the “Liberator of the Slave,” Lincoln “was the sav-ior, if not the real creator, of the American Union of free Democratic States.”50

“Our fathers,” Lincoln tells Vaughan

had only dreamed a Union—they never lived to see it . . . It’s not a questionmerely of four million black slaves. It’s a question of the life of freeman yetunborn. I hear the tread of these coming millions. Their destiny is in your handsand mine. A mighty Union of free and democratic states without a slave—thehope, refuge and inspiration of the world—a beacon light on the shores of time!51

Dixon’s Lincoln subordinates everything, whether it be his own ambitions,the liberty of slaves, or the civil liberties of whites, to the goal of preserving theUnion. Indeed, the historical Lincoln derived his power to curtail the civil lib-erties of citizens from the same source from which he derived his power toemancipate slaves: presidential powers during wartime and insurrection.Worried that “the ordinary processes of law” were not adequate to deal with“disloyal persons” intent on hindering the military draft, Lincoln, two daysafter he issued his preliminary Emancipation Proclamation in September, announced an executive order that created the new offenses of “discour-aging enlistments” and “disloyal practices” while requiring such offendersand those who gave “aid and comfort to the rebels” to be subject to martiallaw, liable to trial and punishment by courts martial and military commissionswithout possibility of writ of habeas corpus.52

Dixon addresses the issue of civil liberties by altering the subplot aboutVaughan from novel to play. If The Southerner has the Vaughan brothers fight-ing on different sides of the conflict and the arrest of their father, there is nolink between the father and a young soldier’s desertion. Thus, there is no


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discussion of his arrest for what his son calls “exercising the right of freespeech on the policy of the government,”53 but his girl friend describes as“making and circulating seditious writing,”54 a not-so-veiled allusion to therecent Sedition Act. It is in creating this new action for the play that Dixondraws on accounts of the Vallandigham affair.

* * * * *

The country’s most notorious Copperhead, Vallandigham persistentlyattacked the Lincoln administration for its curtailment of civil liberties. In thespring of his particular object of scorn was a military order issued in hishome state of Ohio by General Burnside announcing that the “habit of declar-ing sympathy for the enemy will not be allowed.”55 On May , , in MtVernon, Ohio, he gave an impassioned speech protesting the order. Valland-igham chose Mt. Vernon for symbolic purposes. Although he harshly criti-cized the government, he made it clear that he did so as a patriot who honoredthe vision of the founding fathers. An officer sent by Burnside took notes onthe speech, and on May soldiers forced their way into Vallandigham’s homeand arrested him. They took him to Cincinnati and tried him the next day inmilitary court. Vallandigham protested that, as a civilian, he should be tried ina civil court, but he was convicted and sentenced to military prison for theduration of the war.

Lincoln changed his punishment to exile in the Confederacy. Once there,however, the Confederates encouraged him to leave, since he remained aUnionist, even if one urging peace. Running the blockade to Bermuda, heproceeded to Canada. Capitalizing on the publicity of his affair, Democratsnominated him to run for governor of Ohio in the fall election, and he pro-ceeded to conduct his campaign in exile.

He lost the election, but made his way back into the country. Not wantingto give him more publicity, the government did not bother him. At theSeptember Democratic convention that nominated McClellan, Valland-igham was the leader of the peace wing of the party, garnering enough supportto help write the party’s platform. According to Nicolay and Hay’s biog-raphy of Lincoln, the platform, for the most part “was a string of mere com-monplaces.” Vallandigham’s resolution, however, was “worth quoting.” Itresolved that


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after four years of failure to restore the Union by the experiment of war, duringwhich, under the pretense of military necessity, or war power higher than theConstitution, the Constitution itself has been disregarded in every part, andpublic liberty and private right alike trodden down . . . justice, humanity,liberty, and public welfare demand that immediate efforts be made for a cessationof hostilities.56

This is, of course, precisely the position that Dixon’s Lincoln feels woulddestroy the Union. And not only Dixon’s Lincoln, but Lincoln himself, whobelieved that this destructive plan was supported by secret Copperhead societ-ies, reported by Nicolay and Hay to have planned the “counter-revolution”57

Dixon’s Lincoln has learned about.If Dixon tries to give substance to his belief that those societies posed a seri-

ous threat to the Union by having Lincoln refer to a report on them made byLafayette C. Baker, the head of his spying operations, subsequent scholarshiphas shown that report was greatly exaggerated.58 Dixon, however, was notalone in believing the threat real. Most scholars at the time felt the same. Impor-tantly, so did Lincoln. His belief that he faced a well-organized conspiracy wasan essential part of his response to a letter of protest by Erastus Corning andother influential New York Democrats, who, though they supported the war,challenged the arrest and conviction of Vallandigham as unconstitutional.

In response, Lincoln describes a widespread conspiracy, plotted for thirtyyears, that had positioned Southern sympathizers in “all departments ofGovernment and nearly all the communities of the people.” Keeping “on footamong us a most efficient corps of spies, informers, suppliers, and aiders andabettors of their cause,” conspirators, “under cover of ‘liberty of speech,’ ‘lib-erty of press,’ and ‘habeas corpus,’” worked to destroy the Constitution at thesame time that they appealed to it for protection.59 Civil courts, he insists, are“utterly incompetent” to deal with conspiracies of this sort. They “are orga-nized chiefly for trials of individuals, or, at most, a few individuals acting inconcert; and this in quiet times, and on charges of crimes well defined in law.”60

Only military courts, he claims, can deal with the threat of “insurgent sympa-thizers” in a time of national emergency. “Arrests by process of courts, andarrests in cases of rebellion, do not proceed altogether upon the same basis.The former is directed at the small percentage of ordinary and continuousperpetuation of crime; while the latter is directed at sudden and extensiveuprisings against Government, which, at most, will succeed or fail in no great


34


length of time. In the latter case, arrests are made, not so much for what hasbeen done, as for what probably would be done.”61

To support this theory of preventive arrests, Lincoln points to the manyConfederate officers who at the outbreak of the war were still in the U.S.military and imagines what would have happened if they had been arrested. “Ithink,” he speculates, “the time not unlikely to come when I shall be blamedfor having made too few arrests rather than too many.” This example points toprominent rebels, but Lincoln gives a sense of how broadly he defines a sym-pathizer when he claims that, “The man who stands by and says nothing whenthe peril of his Government is discussed, cannot be misunderstood. If not hin-dered, he is sure to help the enemy; much more, if he talks ambiguously—talks for his country with ‘buts’ and ‘ifs’ and ‘ands.’”62 Having made silenceand equivocation equivalent to disloyalty, Lincoln, nonetheless, admits that, ifVallandigham had been arrested simply for criticizing the administration, hewould have been wrongly arrested. But Vallandigham’s crime was different.He was “damaging the army, upon the existence and vigor of which the life ofthe nation depends. He was warring upon the military, and thus gave themilitary constitutional jurisdiction to lay hands upon him.”63

Lincoln’s evidence of Vallandigham’s assault on the military was his criti-cism of the draft. “He who dissuades one man from volunteering, or inducesone soldier to desert, weakens the Union cause as much as he who kills aUnion soldier in battle.”64 If the logic of that analogy is a bit shaky, logic, asLincoln well knew, does not always win political arguments. Indeed, the mostmemorable and effective passage in his response appeals, not to logos, but topathos. “Long experience,” he writes,

has shown that armies cannot be maintained unless desertions shall be punishedby the severe penalty of death. The case requires, and the law and the Constitu-tion sanction, this punishment. Must I shoot a simple-minded soldier-boy whodeserts, while I must not touch the hair of a wily agitator who induces him todesert? . . . I think that in such a case to silence the agitator and save the boy isnot only constitutional, but withal a great mercy.65

Lincoln’s comment about the “simple-minded soldier-boy” is, understand-ably, the most memorable line from his response to his critics. As rhetoricallypowerful as it is, however, Lincoln provides no concrete evidence that Vallan-digham’s words actually caused a soldier to desert. In his fictionalized account,Dixon gives us that evidence. He is also careful to echo Lincoln’s language


35


and logic. For instance, when his Lincoln pardons the Pennsylvania Dutchboy misled by Richard Vaughan’s pamphlet, he declares:

They shall not shoot this poor boy, ignorant of our laws, but if [Secretary of WarStanton] can find the man who put that little book—[Holds up book.]—into hishand, advising desertion—I’ll hang him on a gallows forty cubits high!66

Later he answers Vaughan’s charge that his father was unconstitutionallyarrested with: “Shall I fight Secession and merely argue with it here? I wascompelled to suspend the civil law, arrest these men and hold them withoutbail or trial.”67 To Vaughan’s tearful reminder that “The Constitution of theRepublic guarantees to every freeman the right to trial in open court, con-fronted by his accusers,”68 he responds:

We are fighting a war for the life of the Constitution itself ! . . . To pre-serve the Constitution of the Republic I must in this crisis strain some of itsprovisions . . . The civil law must be suspended for the moment—as the law oflife is suspended while the surgeon cuts a cancer out of bleeding flesh! I cannotshoot one soldier for desertion if I allow the man to go free who causes him todesert.69

A clear echo of Lincoln’s own:

Was it possible to lose the nation and yet preserve the constitution? By generallaw life and limb must be protected; yet often a limb must be amputated to savea life; but a life is never wisely given to save a limb. I felt that measures, other-wise unconstitutional, might become lawful, by becoming indispensable topreservation of the constitution, through the preservation of the nation.70

The most obvious similarity between Dixon’s Lincoln and popular viewsof the man of sorrows is his endless capacity for mercy. Stories of Lincoln par-doning condemned soldiers, Schwartz claims, “could fill a volume; and …they were broadcast through short story, essay, poetry, and painting. And theyfed the new movie industry.”71 According to Mark Neely, this “sentimentalargument” has spanned “seven decades and speaks volumes on the tradition ofwriting about Abraham Lincoln.” This, despite the fact that a “president, nomatter how kindly disposed,” would have had very little mitigating effect onsuch a “vast” and “frighteningly dangerous internal security system,” espe-cially since the “president usually reviewed only cases of men of influence or


36


cases of men acquainted with men of influence.”72 In fact, there were moremilitary executions in the Civil War under Lincoln than in all of the other U.S.wars combined.73 But this empirical data does not undermine what Schwartzcalls the “deep cultural significance”74 of stories of Lincoln’s mercy, a signifi-cance that Lincoln himself fully understood when he rhetorically transformedthe arrest of Vallandigham into an act of mercy. In a classic example of scape-goating, Abraham feels compelled to hang the wily agitator to avoid sacrificingthe innocent soldier boy he has led astray. It is through such acts that Abrahambecomes a founding father of a new nation, “conceived in liberty and dedi-cated to the proposition that all men are created equal.” “Tyrant and usurperthey call me!”, Lincoln wails, yet, “I’m the humblest man who walks the earthto-night.”75

If mythical renditions of Lincoln as a man of mercy help transform whatseem despotic acts into salvational ones of national preservation, Dixonexploits a less obvious, if equally important, aspect of their significance. Talesof Lincoln pardoning humble soldier boys may turn him into a man of mercy,but his power to do so also establishes the extent of his authority. After all, ingranting the president pardoning power, the Constitution gave him one of thepowers reserved in monarchies for the sovereign, even though in the UnitedStates the people are supposedly sovereign.76 If this grant of power is gener-ally discounted as an anomaly, Dixon uses it to equate Lincoln with the sover-eign authority of the people. When Secretary of War Stanton complainsabout his “abuse of the pardoning power,” Lincoln responds, “As ChiefMagistrate of the people, I have been clothed with that power.”77 The same sov-ereign power granted him to pardon also gives him, in his eyes, the power to sus-pend the Constitution if doing so is necessary to save the Union. When Vaughanaccuses him of “using the naked power of an emperor,” his response is almostidentical to the one he made to Stanton: “I have been entrusted with thatpower for a brief term by the people. I am using it sorrowfully but firmly.”78

What Dixon lets us see, therefore, is how the popular image of Lincoln asa man of mercy can help justify his role as what Clinton Rossiter called a“constitutional dictator.” Writing in the wake of World War II, Rossiter, astudent of Corwin’s, extends Carl Schmitt’s argument in Die Diktatur ()to argue that Lincoln was a positive example of a “constitutional dictator.”Self-consciously adopting this provocative label, he does not use it pejora-tively. Instead, he argues that, because constitutional democracies aredesigned for peace, they are “unequal to the exigencies of a great national


37


crisis.”79 Thus, during times of war, rebellion, and economic depression, thechief executive must take on greater power, even going so far as temporarilyto suspend the constitutional order in order to save it. The sole purpose of aconstitutional dictatorship, he makes clear, is “the complete restoration of thestatus quo ante bellum.”80 Lincoln is a model for him because, under his lead-ership, “It is remarkable how little change in the structure of government andhow little abridgement of civil liberty accompanied the persecution of thisbitter war.”81

Rossiter’s assessment has been shared by many who followed him. Forinstance, writing about the conflict between “liberty and authority,” “perhapsthe most delicate, difficult and shifting of all balances which the Court isexpected to maintain,” Supreme Court Justice Robert Jackson, who had servedas prosecutor in the war crimes trials at Nuremberg, concluded, “PresidentLincoln in his famous letter to Erastus Corning and others defended his con-duct,” and said “all that ever could be said and always will be said” in favor ofsuspending civil liberties “in time of national emergency.”82 More recently,Judge Frank J. Williams calls that same letter a “closely reasoned document”and concludes that Lincoln “acted in the best interest of the country.”83

Dixon is, in other words, very similar to some of our most respected think-ers on the subject, and not just right-wing extremists. Despite these similari-ties, however, there are important differences. For instance, whereas Rossiterand Jackson justify Lincoln’s actions, both felt that the internment of Japanese-Americans in World War II was unconstitutional. Dixon, most likely, wouldhave disagreed. Even so, as should be clear by now, Dixon’s problem is notthat he neglects the interests of “the people.” On the contrary, he fullyendorses Lincoln’s ideal of a government of the people, by the people, and forthe people. In doing so, he makes clear how the precedent Lincoln establishedfor curtailing civil liberties during times of national emergency comes notfrom a departure from his most cherished and utopian expression of demo-cratic rule but from an attempt to fulfill it. It does because by identifying “thepeople” with the government, it allows the latter to crackdown on individualliberties in the name of the collective whole. If Dixon, Rossiter, Jackson, andothers, to a degree, share that view, Dixon’s particular danger comes fromhow he realizes this utopian identification of the people with the government.To understand that difference and its dangers, we can turn to a figure Dixon,as a graduate student in political science, almost certainly knew: John W.Burgess.


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* * * * *

Burgess has been called one of the “fathers” of American political science,who, like Dixon, believed that the “modern national popular state” was the“product of the progressive revelation of the human reason through humanhistory.”84 A southern Unionist who was Dunning’s dissertation advisor atColumbia, he also shared Dixon’s belief that this progress would be destroyedif blacks were granted political power. In Reconstruction and the Constitution,Burgess wrote: “A black skin means membership in a race of men which hasnever of itself succeeded in subjecting passion to reason, has never, therefore,created a civilization of any kind. To put such a race of men in possession of a‘State ’ government in a system of federal government is to trust them with thedevelopment of political and legal civilization upon the most important sub-jects of human life, and to do this in communities with a large white popula-tion is simply to establish barbarism in power over civilization.”85

Even more important for an understanding of Dixon’s portrayal ofLincoln, however, is the way Burgess counters abuses of power that mightresult from identifying the state with progressive reason. According toBurgess, the state has to be distinguished from the government. Embody-ing the will of the people, the state can do no wrong; a not-always-perfectmanifestation of the state, the government can.86 Whereas the governmentcan try to represent the will of the people, only the state can express it,which in the United States, is embodied in the Constitution.87 Nonethe-less, he conceded that “In time of war and public danger the whole powerof the state must be vested in the general government, and the constitu-tional liberty of the individual must be sacrificed so far as the governmentfinds it necessary for the preservation of the life and security of thestate.”88 If this sounds very much like Dixon, Burgess makes it clear thatthis power is reserved for the “general government.” In contrast, in TheSoutherner Dixon’s Lincoln declares, “There must be one man power. Ihave been made that power by the people.”89

For Dixon, as for Burgess, the government, as it exists, does not embodythe will of the people. On the contrary, the political process is run by an elitecompletely out of touch with “real” people. In The Southerner, Dixon identi-fies the “real rulers of the Nation” as the leaders of the Union League, a secretsociety organized to combat the secret societies of the Copperheads. It is theywho demand that Lincoln step down as the Republican nominee.


39


The party will obey their orders. These are the men who do the executive think-ing for millions. The millions can only reject or ratify their wills. We are ademocracy in theory, but in reality here is assembled the aristocracy of brainswhich constitutes our government.90

Opposed to them, Lincoln does more than stand for the people; he embodiestheir will. In Act I, for instance, when he takes his “bath of public opinion,” hefeels the people’s “hearts beat close to mine.”91

He also has a mystical encounter with a woman whose first born son waskilled at the battle of Fredericksburg and whose sixteen-year old son was dan-gerously wounded in Grant’s last battle. As she approaches, she worries thatshe has “done wrong to take up your time”; to which Lincoln responds, “Mytime belongs to the people.”92 She comes because she has heard of his nightlyvigil of sorrows. “I saw you staggering alone under a Nation’s sorrow and Iwondered if you had been given the vision to see the dawn of a new life for ourpeople.”93 Her mission, despite her personal losses, is to tell him that “I havebeen praying for you, day and night, and I’ve come this morning to bring youthis message—Be strong and courageous, and God will bring the Nationthrough!”94 As this woman speaks, Lincoln feels as if his dead mother weretalking to him.95 Thus, later, confronted with Vaughan’s criticism of his arbi-trary arrests, he claims to be “backed by the prayers of the mothers whose sonsare dying for our cause—and the silent millions out there, whom I can’t at thismoment see—but whom I love and trust.”96

Dixon’s Lincoln is gifted, as he puts it, with a visionary power of “secondsight,”97 allowing him to see that “We are in the grip of mighty forces sweep-ing in from the centuries. We are fighting the battle of the ages.”98 A battle to“build a real Government of the people, by the people, for the people.”99 Avoice for the “real” people, not those falsely claiming to represent them,Lincoln, for Dixon, embodies that “real” government, one that is identicalwith both the people and the state.

In giving Lincoln powers that Burgess reserves, on the one hand, for the stateand, on the other, for the general government, Dixon is participating in progres-sives’ efforts to expand the president’s role to meet the needs of the twentiethcentury. But once again, crucial distinctions need to be made. Corwin, forinstance, advocated what today we call the imperial presidency in an influentialand often revised book called The President. But he made an argument about theconstitutional office of the president; Dixon celebrates a particular individual.


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Dixon was aware of the despotic dangers of his point of view. But heexpresses them through McClellan, just as in The Clansman, he expresses themthrough his villain Stoneman. Known as “the young Napoleon,” McClellan,while in charge of the Army of the Potomac, had the supreme devotion of hismen. As Dixon’s Lincoln admits in his interview with him, “The Army wasbehind you, to a man! I sounded the officers, I sounded the men. They wereagainst me and with you. If the leaders had dared risk their necks on a revolu-tion, they might have won and set up a Dictatorship!”100 If that threat passedwhen McClellan let Lee escape after the battle of Antietam, allowing the“supremacy of civil government” to be restored,101 it is renewed because ofMcClellan’s association with the secret, conspiratorial Copperhead societies.

Indeed, Dixon knowingly departs from the historical record available tohim in portraying McClellan in league with them. Nicolay and Hay reportthat Vallandigham “put the seal of his sinister approval” on McClellan by“moving that his nomination be made unanimous”102 but they also admit thatMcClellan felt that “the poison of death was in the platform of the Convention.”Thus, in his letter of acceptance, he distanced himself from it by declaring that“The reestablishment of the Union in all its integrity is, and must continue tobe, the indispensable condition in any settlement.”103 Dixon’s McClellanrefuses to make that pledge.

For Dixon, the only way to combat such conspiratorial dangers was to placecomplete faith in the virtuous man of the people. Linked with his theory of statesovereignty, this personality cult reveals Dixon’s tendencies toward fascism. In he published an account of a colony for boys in Portugal run by the phys-ical fitness advocate Bernarr Macfadden that has a chapter praising BenitoMussolini.104 Dixon’s admiration for Mussolini diminished; nonetheless, hisview of Lincoln anticipates Willie Stark in Robert Penn Warren’s brilliant All theKing’s Men. Like Dixon’s Lincoln, Stark is a man of the people claiming to servetheir needs and embody their will in a way that legislators and other politicaloperatives cannot. Addressing the people as he is threatened with impeachment,just as Dixon’s Lincoln is threatened with removal from the Republican ticket,Stark proclaims, “Your will is my strength . . . Your need is my justice.”105

If Warren, unlike Dixon, self-consciously dramatizes dangers in the beliefthat one man can embody the will of the people, he also makes clear the pow-erful populist appeal of someone who cuts through governmental bureaucracyand cumbersome constraints of rule by law to bring about popular justice. Aspowerful as that appeal can be, however, Dixon’s Lincoln did not prove all


41


that popular. Even though the New York Times called the play, “always inter-esting, generally well-written, and only slightly theatrical,” it suffered in com-parison to Drinkwater’s play and did not have the success Dixon hoped for.106

Its lack of success should remind us that, although the country has frequentlyflirted with proto-fascist ideas like Dixon’s, it has not fully embraced them.Thus, as helpful as his play is in alerting us to their dangers, it is even morehelpful in highlighting how typical elements of the cult of Lincoln continue tojustify crackdowns on civil liberties.

To be sure, Vallandigham’s denunciation of Lincoln as a despot and a tyranthas been kept alive by a small minority of critics. Edmund Wilson called him adictator and compared him to Bismarck and Lenin.107 Likewise, Edgar LeeMasters, who served as an attorney for an accused anarchist in a case,wrote a highly critical biography of Lincoln.108 Nonetheless, even advocates ofcivil liberties have been influenced by the Lincoln mythos. For instance, Cha-fee admitted that Lincoln might provide a precedent for some wartimeactions, but, appalled that convictions under the Espionage Act continuedafter hostilities were over, he insisted that Lincoln’s “policy was absolutelyopposed to the annexation of political disqualifications when the emergencyhad passed.” Referring to the continued imprisonment of Eugene Debs, heconfidently asserted that “Lincoln would not have allowed an old man, a Pres-idential opponent and the choice of nine hundred thousand American citizens,to lie in prison for sincere and harmless, even though misguided, words, overa year after the last gun was fired.”109

Chafee’s view of Lincoln was influenced by the historian James Rhodes.Considering Lincoln’s actions in the Vallandigham affair a mistake, Rhodes in noted that in his Letter to Corning he “went as far towards proving a badcase as the nature of things will permit.” But he went on to add that its “tonedemonstrated that the great principles of liberty would suffer no permanentharm while Abraham Lincoln was in the presidential chair.”110 As if Lincoln’stone could make up for the constitutional precedent he tried to establish. Ahundred years later, law professor Daniel Farber comes to almost the same con-clusion. Acknowledging that the Vallandigham case was a “regrettable” error,he, nonetheless, still feels that “Given the extremity of the country’s situation,Lincoln’s record on civil liberties was not at all bad.” He then ends an afterwardon “The Lessons of History” with, “In the end, all power can be abused, so wemust take the risk of putting confidence in those who exercise power . . . We hadbetter take care that, like Lincoln, they are worthy of our trust.”111


42


The problem with relying on the trustworthy character of those in poweris, first, that we have little way of knowing beforehand if we will be able totrust them once they gain power, and, second, that, even if they prove to betrustworthy, they can still set a precedent for those who are not. On this score,Rossiter and Jackson are better at articulating the dangers of Lincoln’s prece-dent than either Farber or Rhodes. Rossiter, for instance, quotes from Jack-son’s “coldly realistic” dissent in Korematsu v. United States:

If the people ever let command of the war powers fall into irresponsible hands,the courts yield no power equal to its restraint. The chief restraint upon thosewho command the physical forces of the country, in the future as the past, mustbe their responsibility to the political judgments of their contemporaries and themoral judgments of history.112

Lincoln poses such a dangerous precedent because his reputation allowsirresponsible people in power to shape the political judgments of their con-temporaries by claiming that the moral judgments of history are on their side.As Rossiter pointedly cautioned, Lincoln “set a precedent for bad men as wellas good. It is just because Lincoln’s reputation is so tremendous that a tyrantbent on illegal power might successfully appeal to this eminent shade for his-torical sanction of his own arbitrary actions.”113

Knowledge of how Lincoln’s arbitrary actions served Thomas Dixon’s viewof the moral progress of history should, I hope, make people think twice beforeevoking Lincoln’s monumental reputation on issues of civil liberties, especiallywhen they recognize how similar Dixon’s sense of the Lincoln legend is to thatof many of our most respected legal scholars and political scientists.

. See infra note . . For a recent example, see Michael Stokes Paulsen, “The Constitution of Necessity,” Notre Dame

Law Review, – () and “Emancipation Proclamation and the Commander in Chief Power,The Symposium: Emergency Powers and the Constitution: Comment,” Georgia Law Review, –

(). The latter responds to Sanford Levinson, “Constitutional Norms in a State of PermanentEmergency,” Georgia Law Review, – () and “Was the Emancipation Proclamation Con-stitutional? Do We/Should We Care What the Answer Is?” University of Illinois Law Review, –

(). Paulsen agrees with Lincoln’s justification for his curtailment of civil liberties, but feels that hisparticular action in the Vallandigham case was probably not wise.

. Barry Schwartz, Abraham Lincoln and the Forge of National Memory (Chicago: University of ChicagoPress, ), .

. Id. at –.


43


. Id. at . . Id. at . . Peter Karsten, Patriot Heroes in England and America (Madison: University of Wisconsin Press,

), . . See Schwartz, supra note at –. . Dixon encouraged Griffith to make a film about Lincoln, which he did in , his first sound picture.. Thomas Dixon, The Southerner: A Romance of the Real Abraham Lincoln (New York: D. Appleton Co.,

), ii.. For the election a plank of the Republican Party’s platform was called “Free Speech and Alien

Agitation,” while the Democrats responded with one on “Free Speech and the Press.” If Democratsdefensively resented the “unfounded reproaches” directed against them “for alleged interference withthe freedom of the press and freedom of speech,” Republicans were by no means civil libertarians.Both parties gave lip service to free speech and freedom of the press, but neither expressed tolerancefor disloyal utterances.

. Ray Stannard Baker, Woodrow Wilson: Life and Letters, Vol. (New York: Doubleday, Doran, ),. On The Fall of the Nation, see Anthony Slide, American Racist: The Life and Films of Thomas Dixon(Lexington: University of Kentucky Press, ), –.

. Paul L. Murphy, World War I and the Origins of Civil Liberties in the United States (New York: Norton,), .

. Id. at .. Id. at .. Charles Warren, “What Is Giving Aid and Comfort to the Enemy?” Yale Law Journal, ().. See Murphy, supra note at , notes and .. The Almanac of American History, ed. Arthur M. Schlesinger, Jr. (New York: Bramhall House, ),

.. George Creel, The War, The World, and Wilson (New York: Harper and Brothers, ), .. William A. Dunning, “Disloyalty in Two Wars,” Amer. Hist. Rev., – ().. Ex Parte Milligan, U.S. , ().. Alan Nevins, “The Case of the Copperhead Conspirator,” in Quarrels That Have Shaped the Constitution,

ed. John A. Garraty, (New York: Harper & Row, [rev. ed.]), .. Edward S. Corwin, The President: Office and Powers: History and Analysis of Practice and Opinion (New

York: New York University Press, ), .. Charles Warren, The Supreme Court in United States History Vol. (Boston: Little, Brown, and Co.,

[rev. ed.][]), , .. See Murphy, supra note at .. Id. at .. Thomas Dixon, A Man of the People: A Drama of Abraham Lincoln (New York: D. Appleton Co.,

), .. Id. at vii.. Id. at .. Id.. Id. at .. Id. at .. Id. at .. Id. at .. Id. at .. Id. at .. Id. at .. Id. at .


44


. Id. at .. Summarizing the play, Raymond A. Cook places this second scene in Davis’s headquarters. Thomas

Dixon (New York: Twayne, ), . Slide repeats the mistake. American Racist, .. See Dixon, supra note at .. Dixon was a consistent foe of anti-Semitism. In The Fall of the Nation he also sympathizes with Native

Americans, accusing Puritans of robbing and murdering them. In addition, his sympathetic treatmentof the Pennsylvania Dutch boy during a time of anti-German sentiment is noteworthy.

. See Dixon, supra note at –.. Id. at .. Id. . Id. at . . In The Southerner black union troops are easily routed by Lee’s soldiers. But in the play Lee assures a

skeptical Davis that “led by their old masters—they’ll fight—to a man.” Id. at . It is possible thatDixon was influenced by blacks’ performances in the segregated army of World War I.

. Id. at vii.. Id. at .. Id. at vii. Dixon was not alone. Although plans for the NAACP were hatched during the Lincoln cen-

tennial in , many lamented the fact that others neglected his role in freeing the slaves. See CharlesW. Chesnutt, “Abraham Lincoln: An Appreciation,” in Essays and Speeches, eds. Joseph R. McElrath,Jr., Robert C. Leitz, III, and Jesse S. Crisler (Stanford: Stanford University Press, ), –.

. See Dixon, supra note at .. James Ford Rhodes, History of the United States from the Compromise of Vol. (New York: Harper

& Brothers, ), .. See Dixon, supra note at .. Id. at .. John G. Nicolay and John Hay, Abraham Lincoln: A History Vol. (New York: Century, ),

–. This biography is Dixon’s primary source for events in late August and early September .. Nicolay and Hay, Abraham Lincoln: A History Vol. (New York: Century, ), .. Id. at .. Frank L. Klement, Dark Lanterns: Secret Political Societies, Conspiracies, and Treason Trials in the Civil

War (Baton Rouge: Louisiana State University Press, ).. Abraham Lincoln, “The Truth from an Honest Man. The Letter of the President. President Lincoln’s

Views. An Important Letter on the Principles Involved in the Vallandigham Case. Correspondence inRelation to the Democratic Meeting, at Albany, N.Y. (Union League No. ),” in Frank Freidel, ed.,Union Pamphlets of the Civil War, – Vol. (Cambridge, MA: Belknap Press, ) . [here-inafter Truth].

. Id. at .. Id. at –.

. Id. at .. Id. at .. Id. at .. Id. at ‒.. See Dixon, supra note at –.. Id. at .. Id. at .. Id. at .. Roy P. Basler, ed., The Collected Works of Abraham Lincoln Vol. (New Brunswick: Rutgers U.P.,

), .. See Schwartz, supra note at .


45


. Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: OxfordUniversity Press, ), . Through careful research, Neely has shown that the number of arrestsmade by the Lincoln administration has most likely been exaggerated. Dixon is a case in point. Becauseknowledge of specific cases “hurt” him, Dixon’s Lincoln refuses “to know of them unless [he] must”(see Dixon, supra note at ); nonetheless, he has heard that “Seward and Stanton have arrestedwithout warrant and hold in jail more than thirty-five thousand men” (id. at ), which is, according toNeely’s research, far too large. But even though Lincoln hopes that “the number is exaggerated” (id.),in the end it would not matter. For Dixon, when national salvation is at stake, truly to act in the bestinterests of the country is not to worry about the consequences. The stakes are simply too high.

. Robert I. Alotta, Civil War Justice: Union Army Executions under Lincoln (Shippensburg, PA: WhiteMane, ).

. See Schwartz, supra note at .. See Dixon, supra note at .. See Austin Sarat, “At the Boundaries of the Law: Executive Clemency, Sovereign Prerogative, and the

Dilemma of American Legality,” American Quarterly (), –.. See Dixon, supra note at .. Id. at .. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton:

Princeton University Press, ), .. Id. at . . Id. at .. Robert H. Jackson, The Supreme Court in the American System of Government (Cambridge, MA:

Harvard University Press, ), .. Frank J. Williams, Judging Lincoln (Carbondale: Southern Illinois U.P., ), , .. John W. Burgess, Political Science and Comparative Constitutional Law Vol. (Boston: Ginn, ),

and . For more on Burgess, see Wilfred M. McClay, “Introduction” to John W. Burgess, The Foun-dations of Political Science (New Brunswick: Transaction, ), vii-xxxvii [hereinafter PoliticalScience]; Bernard Edward Brown, American Conservatives: The Political Thought of Francis Lieber andJohn W. Burgess (New York: Columbia University Press, ); Albert Somit and Joseph Tanenhaus,The Development of American Political Science: From Burgess to Behaviorism (New York: ), ; andDorothy Ross, The Origins of American Social Science (New York: Cambridge University Press, ).

. John W. Burgess, Reconstruction and the Constitution: – (New York: Charles Scribners Sons,) .

. Anticipating the views of Schmitt and Giorgio Agamben, while substituting their notion of the excep-tion with that of the limit, Burgess claimed, “Power cannot be sovereign if it be limited; that whichimposes the limitation is sovereign; and not until we reach the power which is unlimited, or only self-limited, have we attained sovereignty.” Political Science, supra note at . For a recent use of Schmittin relation to questions of civil liberties, see Mark Tusnet, “Meditations on Carl Schmitt, Symposium:Emergency Powers and the Constitution: Comment,” Georgia Law Review (): –.

. As Burgess puts it, “With us the government is not the sovereign organization of the state. Back of thegovernment lies the constitution; and back of the constitution the original sovereign state, whichordains the constitution both of the government and of liberty.” Id. at .

. Id. at –. If in Ex parte Milligan a unanimous Court declared Lincoln’s use of military courtsunconstitutional, a minority of four felt that Congress, as the voice of the people, had authority toallow for trials of civilians in military courts. Burgess agreed with the minority. With German sympa-thies, Burgess himself became a victim of patriotic fervor during World War I.

. See Dixon, supra note at .. Id. at .. See Dixon, supra note at .


46

Law & L i terature

•

Volume 20, Number 1

.

Id.

at

–

.

.

Id.

at

.

.

Id.

at

.

.

This encounter was most likely inspired by Lincoln’s November

,

, letter consoling LydiaBixbie for the death of five sons. During World War I it was frequently contrasted to one by KaiserWilhelm to show Lincoln as an unpretentious man of the people and the Kaiser as a presumptuousauthoritarian. Also inspiring the film

Saving Private Ryan

, it was probably written by Hay. Bixbie, alikely Confederate sympathizer, lost only two sons; two others deserted. See Michael Burlingame,“The Trouble with the Bixby Letter,”

American Heritage

–

(August

).

.

See

Dixon

,

supra

note

at

.

.

Id.

at

.

.

Id.

at

.

.

Id

.

.

Id.

, at

.

.

Id.

at

.

.

See

Nicolay

and Hay,

supra

note

, at

.

.

Id,

at

.

.

Cook,

Thomas Dixon

,

.

.

Robert Penn Warren,

All the King’s Men

(New York: Harcourt Brace Jovanovich,

[

]),

.

.

See

Slide,

supra

note

at

. Dixon admired the Englishman’s play, dedicating his to its producer.

.

Edmund Wilson,

Patriotic Gore: Studies in the Literature of the American Civil War

(New York: OxfordUniversity Press,

). For a summary of the dictatorship debate up to

, see Herman Belz,

Lincoln and the Constitution: The Dictatorship Question Reconsidered

(Fort Wayne, IN: Louis A. Warren,

).

.

Edgar Lee Masters,

Lincoln the Man

(New York: Dodd, Mead, & Co.,

). The case was

Turner v.Williams

,

U. S.

(

).

.

Zechariah Chafee, Jr.,

Freedom of Speech

(New York: Harcourt, Brace and Howe,

),

and

.Although Dixon’s Lincoln had vowed to hang Vaughan's father, he decides, “I shall

not

order his exe-cution. I shall only hold him until the war is over, and let him and all the others go.” See

Dixon,

supra

note

at

.

.

See

Rhodes,

supra

note

at

.

.

Daniel Farber,

Lincoln’s Constitution

(Chicago: University of Chicago Press,

),

and

.

.

See

Rossiter,

supra

note

at

.

.

Id.

at

.


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