NOTES

Preface

“shining bright. . . beautiful prospect”: Ambrose Serle, “Journal Entry: July 12, 1776,” in The American Revolution: Writings from the War of Independence, 1776–1783 (New York: Literary Classics of the United States, Inc., 2001).

“generalissimo with full Powers”: Ibid.

“for the president alone”: John C. Yoo, “The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them” (September 25, 2001), available at: www.justice.gov/sites/default/files/olc/opinions/2001/09/31/op-olc-v026-p0188-0.pdf.

Chapter 1

 The Revolutionary War

epigraph: George Washington to Archibald Campbell, March 1, 1777, reprinted in Charles H. Walcott, Sir Archibald Campbell of Inverneill: Sometime Prisoner of War In the Jail at Concord, Massachusetts (Boston: Beacon Press, 1898), p. 37.

A fleet of more than one hundred: Edward G. Lengel, General George Washington: A Military Life (New York: Random House, 2005), pp. 135, 137–41; David McCullough, 1776 (New York: Simon & Schuster, 2005), p. 157.

In preparing for just that outcome: Lengel, George Washington, pp. 139–40.

New York was no ordinary city: Lengel, George Washington, p. 129.

Washington’s advisors had been warning: Benjamin L. Carp, “The Night the Yankees Burned Broadway: The New York City Fire of 1776,” Early American Studies (Fall 2006), p. 491.

“Burn or Garrison”: Nathanael Greene to Samuel Ward, Sr., January 4, [1776], quoted in Carp, “The Night the Yankees Burned Broadway,” p. 491; Nathanael Greene to George Washington, September 5, 1776, reprinted in Philander D. Chase and Frank E. Grizzard, Jr., eds., The Papers of George Washington, Revolutionary War Series, vol. VI, pp. 222–24.

Rebel soldiers had set fire: Carp, “The Night the Yankees Burned Broadway,” pp. 492–93.

army would head for White Plains: Nathanael Greene to George Washington, September 5, 1776, reprinted in Chase and Grizzard, eds., Papers of George Washington, pp. 222–24.

savvy enough: Carp, “The Night the Yankees Burned Broadway,” p. 494;

“cheerfully submit . . . general Interest of America”: Abraham Yates, Jr., to George Washington, August 22, 1776, reprinted in Chase and Grizzard, eds., Papers of George Washington, p. 108;

“justify me”: George Washington to the New York Convention, August 23, 1776, reprinted in ibid., p. 114.

“deliberating Executive assembly”: Thomas Burke to the North Carolina Assembly, August 1779, reprinted in Edmund C. Burnett, ed., Letters of Members of the Continental Congress, vol. IV (Washington, D.C.: Carnegie Institution of Washington, 1928), p. 367; Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (New York: Alfred A. Knopf, 1979), p. 383.

Congress would sometimes send: Jay Caesar Guggenheimer, “The Development of the Executive Departments, 1775–1789,” in J. Franklin Jameson, ed., Essays in the Constitutional History of the United States in the Formative Period, 1775–1789 (Cambridge, MA: Riverside Press, 1889), pp. 118–26; Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (Cambridge, MA: Ballinger Publishing, 1976), pp. 20–21, 388 n.76; Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (Urbana, IL: University of Illinois Press, 2d ed., 1989), pp. 108–09; Logan Beirne, “George vs. George vs. George: Commander-in-Chief Power,” Yale Law and Policy Review 26 (2007); Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789, vol. V, pp. 605–06 (Washington, D.C.: GPO, 1906); Joseph J. Ellis, His Excellency: George Washington (New York: Alfred A. Knopf, 2004), p. 93.

“in every respect by the rules and discipline”: Congress to George Washington, June 17, 1775, reprinted in Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (Washington, D.C.: GPO, 1905), vol. II, p. 96.

Washington treasured this document: William M. Fowler, Jr., American Crisis: George Washington and the Dangerous Two Years After Yorktown, 1781–83 (New York: Walker & Co., 2011), p. 234.

British forces had taken over Long Island: Carp, “The Night the Yankees Burned Broadway,” p. 493; Nathanael Greene to George Washington, September 5, 1776, reprinted in Chase and Grizzard, eds., Papers of George Washington, p. 222; George Washington to John Hancock, September 8, 1776, reprinted in ibid., pp. 140–48.

“If we should be obliged”: George Washington to John Hancock, September 2, 1776, reprinted in Carp, “The Night the Yankees Burned Broadway,” pp. 495–96.

“burnt our towns”: The Declaration of Independence (U.S., 1787).

“no damage”: John Hancock to George Washington, September 3, 1776, reprinted in Dorothy Twohig, ed., Papers of George Washington (1994), vol. VI, p. 207.

“absolutely forbid”: George Washington to Lund Washington, October 6, 1776, ibid., p. 493.

Washington was incredulous: John Ferling, The Ascent of George Washington: The Hidden Political Genius of an American Icon (New York: Bloomsbury Press, 2009), p. 113.

“I shall take every measure”: George Washington to John Hancock, September 6, 1776, reprinted in Twohig, ed., The Papers of George Washington, vol. VI, p. 207.

“this in my judgment”: George Washington to Lund Washington, October 6, 1776, ibid., p. 493; Carp, “The Night the Yankees Burned Broadway,” pp. 496–97.

The final British assault began on September 15: Ferling, Ascent of George Washington, pp. 111–14; Ellis, His Excellency, pp. 92–96; Lengel, George Washington, pp. 149–55; David Hackett Fischer, Washington’s Crossing (New York: Oxford University Press, 2004), pp. 81–114; McCullough, 1776, pp. 210–14.

Some of the British and many of the loyalists: Carp, “The Night the Yankees Burned Broadway,” pp. 504–05; entry for September 21, 1776, reprinted in Ambrose Serle, The American Journal of Ambrose Serle, Secretary to Lord Howe, 1776–1778 (San Marino, CA: The Huntington Library, 1940; reprinted Arno Press, 1969), pp. 110–11; Lengel, George Washington, 157–58; McCullough, 1776, pp. 221–24.

As for the missing bells: Carp, “The Night the Yankees Burned Broadway,” p. 479.

“Providence—or some good honest Fellow”: George Washington to Lund Washington, October 6, 1776, reprinted in Carp, “The Night the Yankees Burned Broadway,” p. 497.

Well schooled but slovenly: Ellis, His Excellency, pp. 80–82.

Those under Washington’s command: Walcott, Sir Archibald Campbell, pp. 9, 20–22.

Campbell and seven fellow Scotsmen: Archibald Campbell to George Washington, February 14, 1777, James Murray Robbins Family Papers.

“luxurious habits . . . self-denying farmers”: Walcott, Sir Archibald Campbell, pp. 22–23; Archibald Campbell to James Bowdoin, April 13, 1777, reel 48, box 55, Massachusetts Historical Society, Bowdoin and Temple Papers.

The enemy took Lee into custody: McCullough, 1776, pp. 264–66.

rallying point . . . this side of the Atlantic: Walcott, Sir Archibald Campbell, pp. 23–24.

“committed to the custody . . . same treatment”: Orders of Congress, January 6, 1777 & February 20, 1777, reprinted in Walcott, Sir Archibald Campbell, pp. 24–25.

“into safe and close custody”: Order of Congress, February 20, 1777, reprinted in Walcott, Sir Archibald Campbell, p. 25.

By the time the new order came down: Ibid., pp. 26–27.

Campbell found his new surroundings appalling: Archibald Campbell to General William Howe, February 14, 1777, Call number MSN801, James Murray Robbins Family Papers.

“From the powers which I have lately understood . . . servant on my person”: Archibald Campbell to George Washington, February 4, 1777, reprinted in Walcott, Sir Archibald Campbell, pp. 31–35.

Washington was sympathetic: Walcott, Sir Archibald Campbell, pp. 36–38.

“I am not invested . . . required by any resolution”: George Washington to Archibald Campbell, March 1, 1777, reprinted in Walcott, Sir Archibald Campbell, p. 37.

“upon the most strict interpretation”: George Washington to James Bowdoin, February 28, 1777, quoted in ibid., p. 36.

Lee, after all, was not being treated: Archibald Campbell to William Heath, May 16, 1777, reels 4–7, 9, Massachusetts Historical Society, William Heath Papers.

He was permitted each night: Walcott, Sir Archibald Campbell, pp. 44–45.

“[would] not have the desired . . . Lee has yet received”: Letter to Congress: George Washington to Congress, March 1, 1777, reprinted in Walcott, Sir Archibald Campbell, p. 38.

“It was not . . . on six Field Officers”: John Hancock to George Washington, March 17, 1777, reprinted in Jared Sparks, ed., Correspondence of the American Revolution: Being Letters of Eminent Men to George Washington, From the Time of Taking His Command of the Army to the End of His Presidency (Boston: Little, Brown & Co., 1853), vol. I, pp. 356–57.

Washington’s lobbying had plainly done some good: Walcott, Sir Archibald Campbell, p. 40.

He wrote Washington again: Archibald Campbell to James Bowdoin, April 13, 1777, reel 48, box 55, Massachusetts Historical Society, Bowdoin and Temple Papers; Archibald Campbell to James Bowdoin, April 17, 1777, reel 48, box 55, Massachusetts Historical Society, Bowdoin and Temple Papers; Walcott, Sir Archibald Campbell, pp. 40–41.

“in the jailer’s house”: William Howe to George Washington, May 22, 1777, quoted in Walcott, Sir Archibald Campbell, pp. 42–43.

“the situation of”: George Washington to William Howe, June 10, 1777, reprinted in Walcott, Sir Archibald Campbell, p. 50.

standoff did not end: Walcott, Sir Archibald Campbell, pp. 50–51; Betsy Knight, “Prisoner Exchange and Parole in the American Revolution,” William and Mary Quarterly (April 1991), pp. 204–16.

As a result, Congress scotched: Knight, “Prisoner Exchange and Parole,” pp. 204–216.

Revealing the perils of independence: Letter from George Washington to Joseph Reed, March 3, 1776, reprinted in John Fitzpatrick, ed., The Writings of George Washington (Washington, D.C.: GPO, 1931–44), vol. IV, p. 367.

“I take the earliest opportunity”: George Washington to the President of Congress, December 20, 1783, reprinted in Fitzpatrick, ed., Writings of George Washington, vol. XXVII, pp. 277–78.

“an affectionate farewell”: Address to Congress on Resigning His Commission, December 20, 1783, reprinted in Fitzpatrick, ed., Writings of George Washington, vol. XXVII, pp. 284–86 & n.68.

His remarks complete: Ellis, His Excellency, p. 146; Ferling, Ascent of George Washington, pp. 243–44; Fowler, American Crisis, pp. 234–40.

“translated into a private citizen”: George Washington to James McHenry, December 10, 1783, reprinted in Fitzpatrick, ed., Writings of George Washington, vol. XXVII, p. 266.

Chapter 2

 The Founding

epigraph: Speech of Patrick Henry in the Virginia Ratifying Convention, June 5, 1788, reprinted in William Wirt Henry, Patrick Henry: Life, Correspondence, and Speeches (New York: Charles Scribner’s Sons, 1891), vol. III, p. 451.

With a man like that presiding: Donald L. Robinson, “Inventors of the Presidency,” Presidential Studies Quarterly 13 (Winter 1983), pp. 8–9, 20, 23.

During the burst of state constitution making: Ray Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Alfred A. Knopf, 2012), p. 40.

actually naming a king: Eric Nelson, Royalist Revolution: Monarchy and the American Founding (Cambridge, MA: Harvard University Press, 2014), pp. 210–11.

the delegates to the Convention: Raphael, Mr. President, p. 63.

two of Washington’s former colleagues: Henry, Patrick Henry, vol. II, p. 350.

they were formidable opponents: Thomas S. Kidd, Patrick Henry: First Among Patriots (New York: Basic Books, 2011), pp. 193–211.

Mason was known to dress in black: Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788 (Richmond, VA: Virginia Historical Society, 1890), vol. I, p. 4 n.6.

“Son of Thunder”: Richard Beeman, Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009), p. 396.

He even made a show of his modest origins: Harlow Giles Unger, Lion of Liberty: Patrick Henry and the Call to a New Nation (Cambridge, MA: Da Capo Press, 2010), pp. 237–39.

For all their differences: Beeman, Plain, Honest Men, pp. 395–99; Unger, Lion of Liberty, pp. 210–40.

Henry was so hostile to the ideas: Patrick Henry to Edmund Randolph, February 13, 1787, reprinted in Henry, Patrick Henry, vol. II, p. 311.

He returned to Virginia: Robinson, “Inventors of the Presidency,” p. 12.

other than one early reference: Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), vol. I, p. 23 and vol. III, p. 595, 599; Raphael, Mr. President pp. 3–4, 91.

But the committee appears to have done so: Charles C. Thach, Jr., The Creation of the Presidency 1775–1789: A Study in Constitutional History (Baltimore, MD: Johns Hopkins Press, 1922), pp. 112–16.

The Convention debates do show: Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996), p. 257; Raphael, Mr. President, p. 55.

True, they acknowledged: Thach, Creation of the Presidency, p. 127.

“[direct] their operations”: Articles of Confederation, art. IX, para. 4.

the framers wished to reserve the power: Oversight Legislation: Hearings Before the Select Comm. on Intelligence, 100th Cong. 179–81 (1987) (written response of Charles Cooper, Assistant Att’y Gen., Office of Legal Counsel); Richard Hartzman, “Congressional Control of the Military in a Multilateral Context: A Constitutional Analysis of Congress’s Power to Restrict the President’s Authority to Place United States Armed Forces Under Foreign Commanders in United Nations Peace Operations,” Military Law Review 162 (1999), pp. 72–76.

there were a number of plans presented: Rakove, Original Meanings, p. 269; Jack N. Rakove, “Taking the Prerogative out of the Presidency: An Originalist Perspective,” Presidential Studies Quarterly 37 (March 2007), pp. 93–94; Raphael, Mr. President, pp. 67–68, 91–92; Farrand, Records of the Federal Convention, vol. I, pp. 64–66, 70, 88–89, 97 (Virginia Plan); ibid., pp. 242, 244 (New Jersey Plan); ibid., p. 292 (Hamilton’s Plan).

“executive function”: Madison Convention Notes, reprinted in Thach, Creation of the Presidency, p. 127; Farrand, Records of the Federal Convention, vol. II, p. 319.

The delegates thus clearly wanted: Rakove, Original Meanings, p. 263; Raphael, Mr. President, p. 99.

A century or so before: David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding,” Harvard Law Review, vol. 121 (2008), pp. 772–73; Charles M. Clode, The Military Forces of the Crown: Their Administration and Government (London: John Murray 1869), vol. I, pp. 425–29; Rakove, Original Meanings, pp. 245–48;

The use of the well-worn title: Francis D. Wormuth, “The Nixon Theory of the War Power: A Critique,” California Law Review 60 (1972), pp. 623, 630; Commission to General Monck as Commander-in-Chief (Jan. 26, 1659), reprinted in The Clarke Papers (C.H. Firth ed., 1901), vol. IV, pp. 137–39; William C. Banks and Peter Raven-Hansen, National Security Law and the Power of the Purse (New York: Oxford University Press, 1994), pp. 11–17.

It was what future commanders in chief: Henry, Patrick Henry, vol. II, pp. 385, 387; Rakove, Original Meanings, pp. 272–274; Donald L. Robinson, “Inventors of the Presidency,” Presidential Studies Quarterly 13 (Winter 1983), p. 23.

Henry had been the commander in chief: Kidd, Patrick Henry, pp. 103–116, 129–50.

He had even been accused: Ibid., pp. 132–33.

Henry and Mason focused on the dangerous: Henry, Patrick Henry, vol. II, pp. 384–85, 401; Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007), pp. 247–48; Virginia Convention Debate, June 5, 1788, reprinted in John P. Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States (Madison, WI: The State Historical Society of Wisconsin, 1990), vol. IX, pp. 951–68 (Henry); ibid., June 18, 1788, vol. X, pp. 1378–79 (Mason).

He held forth for hours: Hugh Blair Grigsby, The History of the Virginia Federal Convention, vol. I, p. 67.

“This Constitution . . . towards monarchy”: Virginia Convention Debate, June 5, 1788, reprinted in Kaminski and Saladino, eds., Documentary History, vol. IX, p. 963; Speech of Patrick Henry in the Virginia Ratifying Convention, June 5, 1788, reprinted in Henry, Patrick Henry, vol. III, p. 451.

“your American chief . . . despotism ensue”: Speech of Patrick Henry in the Virginia Ratifying Convention, June 5, 1788, reprinted in Jonathan Elliot ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution (New York: Burt Franklin Press, 1888), vol. III, p. 60; Henry, Patrick Henry, vol. III, p. 452; Virginia Convention Debates, June 5, 1788, reprinted in Kaminski and Saladino, eds., Documentary History, vol. IX, p. 964; George F. Willison, Patrick Henry and His World (Garden City, NY: Doubleday and Co., 1969), pp. 425–26.

“an American dictator . . . can be trusted on that head”: Speech of Patrick Henry in the Virginia Ratifying Convention, June 5, 1788, reprinted in Henry, Patrick Henry, vol. III, p. 485; Virginia Convention Debates, June 9, 1788, reprinted in Kaminski and Saladino, eds., Documentary History, vol. IX, p. 1058.

“propriety . . . might make a bad use of it”: Virginia Convention Debates, June 18, 1788, reprinted in Kaminski and Saladino, Documentary History, vol. X, p. 1378.

the Constitutional Convention overwhelmingly: Rakove, “Originalist Perspective,” pp. 93–94; Farrand, Records of the Federal Convention, vol. I, p. 242, 244, and vol. III, pp. 217–18.

“of what the late . . . without any control”: Virginia Convention Debates, June 18, 1788, reprinted in Kaminski and Saladino, eds., Documentary History, vol. X, p. 1378–79.

“If it do not finally obtain . . . a good administration”: Alexander Hamilton, Conjectures about the New Constitution, September 17–30, 1787, reprinted in Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (New York: Columbia University Press, 1962), pp. 275–77.

“It will be Eight or Nine months . . . adoption of the Plan”: Alexander Hamilton, Conjectures about the New Constitution, September 17–30, 1787, reprinted in Syrett and Cooke, eds., Papers of Alexander Hamilton, pp. 275–77.

Hamilton began to hear reports: Gouverneur Morris to Alexander Hamilton, June 13, 1788, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton vol. V, p. 7.

Someone using the pseudonym Tamony: Tamony, “To the Freeholders of America,” Virginia Independent Chronicle, Virginia, January 9, 1788, reprinted in Kaminski and Saladino, eds., Documentary History, vol. VIII, pp. 286–88; Rakove, Original Meanings, p. 272.

If Hamilton were honest, he would have admitted: Thach, Creation of the Presidency, p. 52; Raphael, Mr. President, p. 73.

But when he did rise to address: Rakove, “Originalist Perspective,” pp. 93–94; Raphael, Mr. President, pp. 68–72.

“the entire Direction”: Alexander Hamilton, Propositions for a Constitution of Government, June 18, 1787, reprinted in Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York: G. P. Putnam’s Sons, 1904), vol. I, p. 348.

“have so much power”: Raphael, Mr. President, pp. 71–72.

“an Executive for life”: Alexander Hamilton, Propositions for a Constitution of Government, June 18, 1787, reprinted in Lodge, ed., Works of Alexander Hamilton, vol. I, p. 392.

“be nominally the same . . . admiral of the Confederacy”: Alexander Hamilton in Clinton Lawrence Rossiter, ed., The Federalist Papers, No. 69 (New York: Signet Classic, 2003), p. 416.

real comparison should be with those: Barron and Lederman, “Commander in Chief at the Lowest Ebb,” pp. 780–85, 781 n.299.

“may well be a question . . . larger powers”: Alexander Hamilton in Rossiter, ed., Federalist Papers, p. 417.

The Massachusetts example was well chosen: Thach, Creation of the Presidency, pp. 43–48; Lawrence Friedman and Lynnea Thody, The Massachusetts State Constitution (New York: Oxford University Press, 2011), pp. 9–10; David H. Fisher, “The Myth of the Essex Junto,” William and Mary Quarterly 21 (April 1964); Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (Amherst, MA: University of Massachusetts Press, 1978), pp. 30–31; Samuel Eliot Morison, A History of the Constitution of Massachusetts (Boston: Wright & Potter Printing Co., 1917), pp. 16–18.

They had thus ensured that their new governor: Result of the Convention of Delegates Holden at Ipswich in the County of Essex (Newbury-Port, MA: John Mycall, 1778), pp. 36, 58–59.

Hamilton would eventually use that same language: Rossiter, ed., The Federalist Papers, No. 70 (Alexander Hamilton) (New York: Signet Classic, 2003), p. 423; Robert A. Ferguson, Reading the Early Republic (Cambridge, MA: Harvard University Press, 2004), pp. 76–77.

“be exercised agreeably”: Massachusetts Constitution of 1780, ch. 2, sec. 1, art. VII, reprinted in Peters, Massachusetts Constitution of 1780, p. 212.

Massachusetts was not alone: Lynnea Thody, The Massachusetts State Constitution (New York: Oxford University Press, 2011), pp. 10–11; Barron and Lederman, “The Commander in Chief at the Lowest Ebb,” pp. 780–85.

Chapter 3

 Quasi War

epigraph: Alexander Hamilton to James McHenry, May 17, 1798, reprinted in Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (New York: Columbia University Press, 1974), vol. XXI, pp. 461–62.

“as a private citizen . . . round which”: Annals of Congress, March 4, 1797.

The inaugural ceremony: David McCullough, John Adams (New York: Simon & Schuster, 2001), pp. 467–69. It

was painful to contemplate life: Alexander DeConde, The Quasi-War: The Politics and Diplomacy of the Undeclared War with France, 1797–1801 (New York: Charles Scribner’s Sons, 1966), p. 14; JA to AA, March 17, 1797, reprinted in John Adams, Letters of John Adams Addressed to His Wife (XXX), vol. II, p. 252 (“All of the federalists seem to be afraid to approve any body but Washington.”); Jean S. Holder, “The Sources of Presidential Power: John Adams and the Challenge to Executive Primacy,” Political Science Quarterly 101 (1984), p. 605.

Irascible, vain, easily slighted: Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), pp. 531–37; DeConde, Quasi-War, pp. 3–5; McCullough, John Adams, pp. 18–20.

The source of the trouble: Elkins and McKitrick, Age of Federalism, pp. 537–38; DeConde, Quasi-War, pp. 17–24; McCullough, John Adams, pp. 473–79; George C. Daughan, If by Sea: The Forging of the American Navy—From the American Revolution to the War of 1812 (New York: Basic Books, 2008), pp. 303–05.

It was not clear: DeConde, Quasi-War, pp. 3–5; Elkins and McKitrick, Age of Federalism, pp. 531–37.

“out of his senses”: Benjamin Franklin, quoted in James Schouler, History of the United States of America Under the Constitution (Washington, D.C.: W. H. & O. H. Morrison, 1880), vol. I, p. 497.

He berated the various department heads: Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Alfred A. Knopf, 1997), pp. 187–88.

was even accused: David McCullough, John Adams, pp. 375–380.

The French were not letting up: McCullough, John Adams, p. 471, 484; Holder, “Sources of Presidential Power,” pp. 602–03; Ian W. Toll, Six Frigates: The Epic History of the Founding of the U.S. Navy (New York: W. W. Norton & Co., 2006), pp. 79–80.

Adams had a fondness for Britain: DeConde, Quasi-War, pp. 5–6, 379 nn.5–9.

Nor was he above whipping up war fever: DeConde, Quasi-War, pp. 80–84, 403 n.18; Elkins and McKitrick, Age of Federalism, p. 589; John Ferling, John Adams: A Life (Knoxville: University of Tennessee Press, 1992), p. 356.

He went so far as to sign: Elkins and McKitrick, Age of Federalism, 590–93. Jay Winik, The Great Upheaval: America and the Birth of the Modern World, 1788–1800. New York: HarperCollins, 2007), 539–41.

by doing so, he gave himself: DeConde, Quasi-War, pp. 6–7, 380 n.10.

Adams offered his first official comments: Charles Francis Adams, ed., The Works of John Adams (Boston: Little, Brown and Co., 1854), vol. IX, pp. 105–11; DeConde, Quasi-War, pp. 14–15; Elkins and McKitrick, Age of Federalism, p. 542; McCullough, John Adams, pp. 467–70.

French attacks on American merchant ships: Timothy Pickering to John Adams, June 21, 1797, reprinted in Naval Documents Related to the Quasi-War Between the United States and France: Naval Operations from February 1797 to October 1798 (Washington, D.C.: US GPO, 1935), vol. I, p. 6; Daughan, If by Sea, p. 304.

Adams now had no choice but to recall Congress: Elkins and McKitrick, Age of Federalism, pp. 550–52; DeConde, Quasi-War, pp. 16–17.

Where they inclined toward war: Elkins and McKitrick, Age of Federalism, pp. 544–54.

There were ironies in Hamilton: DeConde, Quasi-War, pp. 6–7; Elkins and McKitrick, Age of Federalism, pp. 539–40, 547, 864 n.40.

the president said after one contentious meeting: Daughan, If by Sea, p. 339; Elkins and McKitrick, Age of Federalism, pp. 599–606; DeConde, Quasi-War, pp. 121–23;

“direction of war”: Clinton Lawrence Rossiter, ed., The Federalist Papers, No. 74 (Alexander Hamilton) (New York: Signet Classic, 2003), p. 446.

“entire direction”: Alexander Hamilton, Propositions for a Constitution of Government, June 18, 1787, reprinted in Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York: G. P. Putnam’s Son’s, 1904), p. 348; Charles C. Thach, Jr., The Creation of the Presidency 1775–1789: A Study in Constitutional History (Baltimore, MD: Johns Hopkins Press, 1922), p. 52; Ray Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Alfred A. Knopf, 2012), p. 68–73; Jack N. Rakove, “Taking the Prerogative out of the Presidency: An Originalist Perspective,” Presidential Studies Quarterly 37 (March 2007), pp. 93–94.

“vigor . . . secrecy and dispatch”: Rossiter ed., The Federalist Papers, No. 70 (Alexander Hamilton), p. 423, 425.

While serving in Washington’s cabinet: Pacificus No. I, June 29, 1793, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton, vol. XV, pp. 33–43; Pacificus No. VII, July 27, 1793, reprinted in ibid., pp. 130–35; Alexander Hamilton and Henry Knox to George Washington, May 2, 1793, reprinted in ibid., vol. XIV, pp. 367–96; Alexander Hamilton to George Washington, May 2, 1793, reprinted in ibid., pp. 398–408; Elkins and McKitrick, Age of Federalism, pp. 336–41.

key members were holdovers: DeConde, Quasi-War, pp. 7–8, 18–19, 22–23; Elkins and McKitrick, Age of Federalism, pp. 544–53, 631–62; McCullough, John Adams, pp. 471–72, 494–95; Holder, “Sources of Presidential Power,” pp. 605–08; Ferling, John Adams, pp. 332–47; James McHenry to Alexander Hamilton, April 14, 1797, reprinted in Syrett and Cooke, eds., Papers of Alexander Hamilton, vol. XXI, pp. 48–49; ibid., April 19, 1797, pp. 51–52; Alexander Hamilton to James McHenry, April 1797, ibid., pp. 72–75; ibid., January 27–February 11, 1797, pp. 341–46.

Adams appeared before the specially called session: John Adams to Congress, May 16, 1797, reprinted in Annals of Congress, vol. VII, pp. 54–59; Adams, Works of John Adams, vol. IX, pp. 111–20.

Hamilton had helped to engineer: DeConde, Quasi-War, p. 23; Elkins and McKitrick, Age of Federalism, pp. 552–53; Ferling, John Adams, A Life, pp. 332–48; Winik, The Great Upheaval, 518–19.

Just as Hamilton had prescribed: DeConde, Quasi-War, pp. 10–11; Elkins and McKitrick, Age of Federalism, pp. 544–45.

Adams proposed to send yet another peace delegation: DeConde, Quasi-War, pp. 18–19, 28–29; Elkins and McKitrick, Age of Federalism, pp. 555–58.

Adams was careful to pair that conciliatory gesture: DeConde, Quasi-War, pp. 25–30; Elkins and McKitrick, Age of Federalism, pp. 552–53; McCullough, John Adams, pp. 483–86.

Congress was not the least bit charmed: DeConde, Quasi-War, pp. 26–28; Elkins and McKitrick, Age of Federalism, p. 552; McCullough, John Adams, pp. 483–85.

“war whoop”: McCullough, John Adams, p. 485.

Republican congressional members feared: DeConde, Quasi-War, p. 34.

key flashpoint: DeConde, Quasi-War, p. 31.

“formed so speedily”: Adams, ed., Works of John Adams, vol. IX, p. 116.

Even as Adams spoke: Circular to the Collector of Customs, April 8, 1797, reprinted in Naval Documents Related to the Quasi-War, vol. I, pp. 4–5; Syrett and Cooke, eds., The Papers of Alexander Hamilton, vol. XXI, pp. 47–48 n. 2.

authorized to serve as convoys: John Adams to Congress, May 16, 1797, reprinted in Annals of Congress, vol. VII, pp. 54–59; Elkins and McKitrick, Age of Federalism, p. 553.

“such merchant vessels as shall remain unarmed”: Adams, ed.,Works of John Adams, vol. IX, p. 116.

From the moment Washington took office: David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review, vol. 121 (2008), pp. 955–964; Allen Millet, Peter Maslowski, and William B. Feis, For the Common Defense: A Military History of the United States from 1607–2012 (New York: The Free Press, 2012), p. 95.

Republicans in Congress: James Madison to Thomas Jefferson, April 15, 1798, reprinted in James Madison, Letters and Other Writings of James Madison (Philadelphia: J. B. Lippincott & Co., 1867), vol. II, pp. 134–37; DeConde, Quasi-War, pp. 25–27, 80–81, 88–89.

“antecedent state of things”: Pacificus No. 1, June 29, 1793, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton, vol. XV, p. 42.

“without ventilators”: Samuel Eliot Morison, The Life and Letters of Harrison Gray Otis, Federalist, 1765–1848 (Boston: Houghton Mifflin Co., 1913), vol. I, p. 60.

They swiftly beat back: Annals of Congress, vol. VII, pp. 283–95, 359–409; Elkins and McKitrick, Age of Federalism, p. 555, 581; DeConde, Quasi-War, pp. 31–35.

“wooden walls”: John Adams to Boston Marine Society, September 7, 1798, reprinted in Adams, Works of John Adams, vol. IX, p. 221.

Federalists were advancing a measure: Annals of Congress, vol. VII, p. 283 (statement of Rep. Smith).

Nicholas . . . sought to curb it: Annals of Congress, vol. VII, p. 286 (statement of Rep. Nicholas).

offered an even stricter proposal: Annals of Congress, vol. VII, pp. 287–89 (statements of Rep. Gallatin).

a brilliant Swiss immigrant: Daughan, If by Sea, pp. 306–07.

“adopt a single hostile measure”: Albert Gallatin to James Nicholson, May 26, 1797, reprinted in Henry Adams, The Life of Albert Gallatin (Philadelphia: J. B. Lippincott & Co., 188), p. 184.

“within the jurisdiction”: Annals of Congress, vol. VII, p. 289 (statement of Rep. Gallatin).

Tempers flared: Annals of Congress, vol. VII, pp. 360–66.

Otis was new to Congress: Samuel Eliot Morison, Harrison Gray Otis, 1765–1848: The Urbane Federalist (Boston: Houghton Mifflin Co., 1969), pp. 1–82, 102, 190–92; Samuel Eliot Morrison, Letters of Harrison Gray Otis, vol. I, pp. 1–72.

“If a naval force was raised”: Annals of Congress, vol. VII, p. 290 (statement of Rep. Otis).

The House passed: Annals of Congress, vol. VII, p. 297.

focus of debate then shifted: Annals of Congress, vol. VII, pp. 19–22, 359–60.

Other than a group of revenue cutters: Michael A. Palmer, Stoddert’s War: Naval Operations During the Quasi-War with France, 1798–1801 (Columbia, South Carolina: University of South Carolina Press, 1987), p. 15.

The other three ships: Toll, Six Frigates, pp. 40–43, 62.

“Our little naval preparation”: Alexander Hamilton to Theodore Sedgwick, January 20, 1797, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton, vol. XX, p. 473.

“In ordinary times”: Annals of Congress, vol. VII, p. 363 (statement of Rep. Gallatin).

House Republicans backed up the argument: Annals of Congress, vol. VII, p. 365 (statement of Rep. Giles).

Federalists fought back hard: Annals of Congress, vol. VII, pp. 360–67.

take away the powers: Ibid., p. 363 (statement of Rep. Sewall); ibid., p. 367 (statement of Rep. Kittera).

House adopted Gallatin’s amendment: Annals of Congress, vol. VII, p. 365.

The Federalists in the Senate hardened their position: Annals of Congress, vol. VII, pp. 28–31.

impasse broke: Ibid., pp. 407–10.

special session had been a Republican rout: Elkins and McKitrick, Age of Federalism, pp. 555, 581; DeConde, Quasi-War, pp. 31–35.

specified, among other things: Act Providing for Naval Armament, July 1, 1797, reprinted in Naval Documents Related to the Quasi-War, pp. 7–9.

He immediately returned home to Quincy: DeConde, Quasi-War, p. 35.

the men he had sent to Paris: Ibid., pp. 59–62.

in January, he reached out: Ibid., pp. 63–65; Questions to Cabinet, reprinted in Adams, ed., Works of John Adams, vol. VIII, pp. 561–62.

Sentiment was shifting: McCullough, John Adams, p. 504.

“solemn and manly communication”: Alexander Hamilton to Theodore Sedgwick, March, 1798, reprinted in Lodge, ed., Works of Alexander Hamilton, p. 278.

“an undoubted fact . . . war with that Republic”: Alexander Hamilton to James McHenry, January 27–February 11, 1798, reprinted in Syrett and Cooke, eds., Papers of Alexander Hamilton, vol. XXI, p. 342.

Once the papers leaked: DeConde, Quasi-War, pp. 72–76; Elkins and McKitrick, Age of Federalism, pp. 588–89, 593; Daughan, If by Sea, pp. 310–12; Toll, Six Frigates, pp. 90–91; Ferling, John Adams, pp. 354–55.

summer of 1798: Elkins and McKitrick, Age of Federalism, pp. 588–95; DeConde, Quasi-War, 98–103; Daughan, If by Sea, pp. 314–18.

Congress also gave Adams: Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558; Act of July 16, 1798, ch. 76, § 2, 1 Stat. 604; Act of March 2, 1799, ch. 31, §§ 1, 6–9, 1 Stat. 725–26.

Congress even went so far: Act of May 28, 1798, ch. 48, 1 Stat. 561; Act of July 9, 1798, ch. 68, § 1, 1 Stat. 578; Act of June 28, 1798, ch. 62, § 1, 1 Stat. 574.

act establishing a permanent navy: Daughan, If by Sea, pp. 312, 314–15.

little talent for administration: DeConde, Quasi-War, pp. 7, 90; Palmer, Stoddert’s War, pp. 7–8; Elkins and McKitrick, Age of Federalism, p. 630.

He begged Hamilton to tell him: James McHenry to Alexander Hamilton, May 12, 1798, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton, vol. XXI, pp. 459–60.

“In so delicate a case . . . chicane the Constitution”: Alexander Hamilton to James McHenry, May 17, 1798, reprinted in ibid., pp. 461–62.

“Although Congress have authorized . . . be partial & limited”: James McHenry to Richard Dale, May 22, 1798, reprinted in Naval Documents Related to the Quasi-War, vol. I, p. 77; Palmer, Stoddert’s War, pp. 15–16.

Congress went on to pass: DeConde, Quasi-War, pp. 90–106, 126–27; Elkins and McKitrick, Age of Federalism, pp. 588–93; Palmer, Stoddert’s War, p. 16.

laws were sometimes literally copied: James McHenry to Captain Richard Dale, May 22, 1798, reprinted in Naval Documents Related to the Quasi-War, p. 77; ibid., July 13, 1798, p. 204; An Act More Effectually to Protect the Commerce and Coasts of the United States, May 28, 1798, ibid., pp. 87–88; Instructions to commanders of armed vessels, May 28, 1798, ibid., p. 88; James McHenry to Captain Thomas Truxton, May 30, 1798, ibid., pp. 92–94; An Act Further to Protect the Commerce of the United States, July 9, 1798, ibid., pp. 181–83; Instructions of Secretary Stoddert, 10 July 1798, to commanders of United States armed vessels, ibid., p. 187; Benjamin Stoddert to Captain Stephen Decatur, July 11, 1798, ibid., pp. 192–93; Benjamin Stoddert to Captain James Sever, July 11, 1798, ibid., pp. 193–94.

“keep on & off”: Benjamin Stoddert to Captain John Barry, July 3, 1798, ibid., pp. 161–62; ibid., July 7, 1798, p. 174; ibid., July 11, 1798, pp. 189–91; Tim McGrath, John Barry: An American Hero in the Age of Sail (Yardley, PA: Westholme Publishing, 2010), pp. 459–60.

Adams installed Benjamin Stoddert: DeConde, Quasi-War, p. 90; Palmer, Stoddert’s War, pp. 7–10; Daughan, If by Sea, pp. 313, 319–24.

advised one captain to go ahead: Benjamin Stoddert to Captain Stephen Decatur, June 21, 1798, reprinted in Naval Documents Related to the Quasi-War, p. 127.

Stoddert offered a cheeky interpretation: Benjamin Stoddert to Willings & Francis, Agents for U.S. Ship Ganges, October 9, 1799, reprinted in Naval Documents Related to the Quasi-War, vol. IV, p. 270; Palmer, Stoddert’s War, p. 141.

“Propriety and Prudence . . . done with them”: Stoddert to Captain Stephen Decatur, June 28, 1798, reprinted in Naval Documents Related to the Quasi-War, vol. I, pp. 149–50.

“no position is more dangerous . . . what their duty is”: The Minerva, Dedham, MA, August 2, 1798, p. 3.

“by Halves”: Captain Thomas Truxton to Benjamin Stoddert, February 10, 1799, reprinted in Naval Documents Related to the Quasi-War, vol. II, p. 327.

“restrictions and limitations . . . against the French Republic”: John Adams to John Marshall, September 4, 1800, reprinted in Adams, Works of John Adams, vol. IX, p. 81.

accepted the checks: Message to Both Houses of Congress; On the State of Affairs with France, June 21, 1798, reprinted in ibid., pp. 158–59; Daughan, If by Sea, pp. 326–29, 338–39; Elkins and McKitrick, Age of Federalism, pp. 599–618; DeConde, Quasi-War, pp. 181–85; Ferling, John Adams, pp. 372–86.

“mad”: John Adams to Harrison Gray Otis, undated, quoted in Morison, Letters of Harrison Gray Otis, p. 162; DeConde, Quasi-War, p. 171.

seemingly out of the blue: Message to the Senate; Nominating an Envoy to France, February 18, 1799, reprinted in Adams, ed., Works of John Adams, vol. IX, pp. 161–62.

Hamilton was by then second in command: Elkins and McKitrick, Age of Federalism, pp. 599–618; Daughan, If by Sea, pp. 327–30, 338–39.

his sudden shift toward peace: Daughan, If by Sea, pp. 330, 340–42; Holder, “Sources of Presidential Power,” pp. 612–14; DeConde, Quasi-War, pp. 187–96.

Before Adams’s term ended, the new round: Daughan, If by Sea, pp. 340–45.

He did not even attend: McCullough, John Adams, pp. 564–65.

Chapter 4

 The Good Officer

epigraph: Thomas Jefferson to John Colvin, Paul Leicester Ford, ed., September 20, 1810, reprinted in The Works of Thomas Jefferson (New York and London: G.P. Putnam’s Sons, 1904–05), vol. XII, pp. 146–50.

Most famously, Jefferson abandoned: Thomas Jefferson to John Dickinson (Aug. 9, 1803), reprinted in Ford, ed., The Works of Thomas Jefferson, vol. X, pp. 28–30; Robert J. Delahunty and John C. Yoo, “Dream on: The Obama Administration’s Nonenforcement of Immigration Laws, the Dream Act, and the Take Care Clause,” Texas Law Review, vol. 91 (2013), pp. 812–14.

almost alone among those working: Jon Meacham, Thomas Jefferson: The Art of Power (New York: Random House, 2012), pp. 389–93.

During the campaign for the presidency: David McCullough, John Adams (New York: Simon & Schuster, 2001), pp. 536–38, 544–46.

Jefferson had shown a keen sense: Meacham, Art of Power, pp. 364–66.

Often drunk, never trustworthy: John Colvin to Thomas Jefferson, February 4, 1811, reprinted in J. Jefferson Looney, ed., The Papers of Thomas Jefferson: Retirement Series, (Princeton: Princeton University Press, 2004), vol. III, pp. 359–60; James E. Savage, “Spaniards, Scoundrels, and Statesmen: General James Wilkinson and the Spanish Conspiracy, 1787–90,” Hanover Historical Review, vol. XI, available at http://history.hanover.edu/hhr/98/hhr98_1.html; Meacham, Art of Power, pp. 419–20.

Wilkinson’s heavy-handed tactics: Robert Allen Rutland, James Madison: The Founding Father (Columbia, MO: University of Missouri Press, 1997), pp. 220–21.

Burr was, by all accounts: Nancy Isenberg, Fallen Founder: The Life of Aaron Burr (New York: Viking, 2007), p. 1.

His transparent ambition: Ibid., p. 300; Meacham, Art of Power, pp. 292–93; Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Alfred A. Knopf, 1997), pp. 174–75.

More than a few of the nation’s founders: Alexander Hamilton to James A. Bayard, August 6, 1800, reprinted in Syrett and Cooke, eds., The Papers of Alexander Hamilton (New York: Columbia University Press, 1977), p. 25; Buckner F. Melton, Jr., Aaron Burr: Conspiracy to Treason (New York: John Wiley & Sons, Inc., 2002), pp. 24–26.

So, when Burr stepped down: Meacham, Art of Power, pp. 331, 419–20; Ellis, American Sphinx, pp. 174–75.

Burr’s defenders: Meacham, Art of Power, pp. 419–20; Isenberg, Fallen Founder, pp. 300–01.

One had Burr, as part of this effort: Henry Adams, History of the United States of America During the Administration of Thomas Jefferson (New York: C. Scribner’s Sons, 1921), vol. II, p. 239.

Jefferson first started: Adams, History of the United States, vol. II, pp. 279–80.

Jefferson, too, wanted to avoid: Adams, History of the United States, vol. II, p. 280.

president decided to ask: Thomas Jefferson, Informal Memorandum, October 24, 1806, reprinted in Ford, ed., The Works of Thomas Jefferson, pp. 402–03.

“contingent expenses”: Annals of Congress, vol. XV, p. 998.

They had a pretty good idea: Robert Smith to Thomas Jefferson, December 22, 1806, reprinted in Adams, History of the United States, vol. II, p. 331.

Smith had assured: Report of the Secretary of the Navy Robert Smith, April 18, 1806, Annals of Congress, vol. XV, p. 1021.

Neither Gallatin nor Smith: Henry Adams, The Life of Albert Gallatin (Philadelphia: J.B. Lippincott & Co., 1880), pp. 180, 299; Speech of John Randolph, Annals of Congress, vol. XV, p. 1063.

With doubts growing: Adams, History of the United States, vol. II, pp. 280–81.

“as was proposed . . . within such narrow limits”: Robert Smith to Thomas Jefferson, December 22, 1806, reprinted in Adams, History of the United States, vol. II, p. 331.

“competent naval force”: Robert Smith to Thomas Jefferson, December 22, 1806, reprinted in Adams, History of the United States, vol. II, p. 331.

Jefferson preferred a strategy: Thomas Jefferson’s Proclamation of November 27, 1806 reprinted in Ford, ed., Works of Thomas Jefferson, vol. X, pp. 301–02; Isenberg, Fallen Founder, pp. 314–15.

By late November of 1806: Andro Linklater, An Artist in Treason: The Extraordinary Double Life of General James Wilkinson (New York: Walker, 2009), pp. 228, 258–59; Adams, History of the United States, vol. II, pp. 323–25.

Wilkinson had been passive: Adams, History of the United States, vol. II, p. 332.

“ordinary forms”: James Wilkinson to William Claiborne, Dec. 6, 1806, reprinted in William Charles Cole Claiborne, Official Letter Books of W.C.C. Claiborne 1801–1816, Dunbar Rowland, ed. (Madison, WI: Democrat Printing Co., 1917), vol. IV, pp. 46–47.

“To violate the law”: Claiborne to Wilkinson, December 17, 1806, ibid., pp. 63–64; Adams, History of the United States, vol. II, p. 318.

Asserting his rank as commanding general: Adams, History of the United States, vol. II, pp. 318–20.

The sweep ensnared: Francois-Xavier Martin, History of Louisiana: From the Earliest Period (New Orleans: A.T. Penniman & Co., 1829), vol. II, p. 286.

Wilkinson directed his officers to ignore: James Ripley Jacobs, Tarnished Warrior: Major General James Wilkinson (New York: The Macmillan Company, 1938), p. 234;

the General instead directed: Stephen I. Vladeck, The Detention Power (New Haven, CT: Yale Law & Policy Review, 2004), vol. 22, p. 159.

general even showed up: Jacobs, Tarnished Warrior, p. 234.

news of Wilkinson’s sweep: Adams, History of the United States, vol. II, pp. 335–36.

With a handkerchief: Anthony S. Pitch, The Burning of Washington (Annapolis, MD: Naval Institute Press, 1998), p. 14;

“The United States are not only . . . no questions”: Adams, History of the United States, vol. II, pp. 335–36.

Randolph introduced a resolution: Ibid., pp. 335–36.

days after Randolph’s resolution: Ibid., pp. 336–38.

“It is a miserable . . . in one of the departments.”: “Extract from a letter from New Orleans to Editor of Baltimore American, December 17, 1806” in New York Commercial Advertiser (January 23, 1806).

Jefferson was under great stress: Meacham, The Art of Power, pp. 421–423, 430.

As he contemplated the answer: Thomas Jefferson to James Wilkinson, Feb. 3, 1907, reprinted in Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1905), vol. XI, p. 149.

Supreme Court, in an opinion: Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804); Frederick C. Leiner, “The Seizure of the Flying Fish,” The American Neptune, vol. 56 (1996), pp. 131–43.

He was at the time acting: “Circular Instructions to the Captains & Commanders of Vessels in the Service of the United States,” March 12, 1799, reprinted in Naval Documents Related to the Quasi-War Between the United States and France: Naval Operations (Washington, D.C.: US GPO, 1935), p. 447; Michael A. Palmer, Stoddert’s War: Naval Operations During the Quasi-War with France, 1798–1801 (Columbia, SC: University of South Carolina Press, 1987), pp. 91–94.

“confined in its nature . . . extent of their commission”: Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).

advocates for the captain began crafting a bill: 16 Annals of Congress 259–60 (1807) (Congress’s vote); “Indemnity Made to an Officer for Responsibility Incurred in the Execution of His Instructions,” February 20, 1805 (requesting indemnification); Leiner, “Seizure of the Flying Fish,” pp. 131–43.

bill passed both houses: Annals of Congress, vol. XXVI, (1807), pp. 32, 260–61. Leiner, “Seizure of the Flying Fish,” pp. 138, 138 n.57.

He was the nation’s commanding general: George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776–1861 (Philadelphia: American Journal of Legal History, 1974), vol. 18, pp. 56–57.

Wilkinson, by contrast: Dumas Malone, Jefferson the President (Charlottesville: University of Virginia Press, 1974), vol. V, p. 266.

“the general had caused . . . of the United States”: Thomas Jefferson, Special Message to Congress on the Burr Conspiracy, January 22, 1807, Annals of Congress, vol. XVI, Appx., pp. 39–43.

“the consideration that . . . as its functionaries may direct”: Ibid.

“the criminals . . . receive here their proper direction”: Ibid.

Jefferson’s effort to sidestep: Adams, History of the United States, vol. II, pp. 338–39.

hostile to Jefferson’s endorsement: Speech of John Randolph, January 26, 1807, Annals of Congress, vol. XV, pp. 416–424.

Jefferson’s own son-in-law: Adams, History of the United States, vol. II, p. 39.

“with promptitude . . . only with your information”: Thomas Jefferson to James Wilkinson, Feb. 3, 1807, reproduced in Lipscomb and Bergh, eds., Writings of Thomas Jefferson, vol. XI, pp. 147–50.

“not extend this . . . felt with strength”: Thomas Jefferson to James Wilkinson, Feb. 3, 1807, reproduced in ibid., pp. 147–50.

“we judge of the merit . . . by the military arrest”: Thomas Jefferson to Governor William Claiborne, February 7, 1807, reprinted in H. A. Washington, ed., The Writings of Thomas Jefferson, (New York: Riker, Thorn & Co., 1854), vol. 5, pp. 40–41.

Jefferson was trying: Thomas Jefferson to James Wilkinson, Feb. 3, 1807, reproduced in Lipscomb and Bergh, eds., Writings of Thomas Jefferson, vol. XI, pp. 147–50.

Before sending the suspects: Martin, History of Louisiana, vol. II, p. 266.

Burr was in custody: Linklater, Artist in Treason, p. 273.

Congress was enjoying: Thomas Jefferson to Barnabas Bidwell, July 11, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. X, pp. 455–59.

USS Chesapeake: Meacham, Art of Power, pp. 425–27.

Fears of an imminent: Spencer C. Tucker and Frank T. Reuter, Injured Honor: The Chesapeake-Leopard Affair, June 22, 1807 (Annapolis, MD: Naval Institute Press, 1996), p. 125.

Jefferson scrambled: Tucker and Reuter, Injured Honor, p. 125; Meacham, Art of Power, p. 425.

no clear sense: Tucker and Reuter, Injured Honor, p. 126.

He was moved by health concerns: Thomas Jefferson to Barnabas Bidwell, July 11, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. X, pp. 455–59.

He wasted no time: Meacham, Art of Power, p. 426; Tucker and Reuter, Injured Honor, p. 126.

“sanction” the new contracts: Thomas Jefferson to Barnabas Bidwell, July 11, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. X, pp. 455–59.

governor had sent: Thomas Jefferson to William H. Cabell, August 11, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. X, pp. 440–43.

“any risk of disapprobation . . . details scrupulously”: Thomas Jefferson to William H. Cabell, August 11, 1807, reprinted in ibid., pp. 440–43.

“twistifications”: Thomas Jefferson to James Madison, May 25, 1810, reprinted in J. C. A. Stagg et al., eds., The Papers of James Madison: Presidential Series (Charlottesville, VA: University Press of Virginia, 1999), vol. II, pp. 356–57; Andrew Burstein and Nancy Isenberg, Madison and Jefferson (New York: Random House Trade Paperbacks, 2010), p. 505.

“meum et tuum . . . details scrupulously”: Thomas Jefferson to William H. Cabell, August 11, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, pp. 440–43.

“constitutional power remains”: Ibid.

“affirmative merely . . . would really be verified”: Ibid.

Congress returned to Washington: Act of Mar. 3, 1809, ch. 28, §1, 2 Stat. 535, 535; Thomas Jefferson, Annual Message to Congress (Oct. 27, 1807), in Annals of Congress vol. 17, pp. 14–17 (1807).

He assumed Congress: Thomas Jefferson, Informal Memorandum, July 28, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. I, p. 415.

measure approving his actions: Act of March 3, 1809, ch. 28, §1, 2 Stat. 535, 535; Thomas Jefferson, Annual Message to Congress (Oct. 27, 1807), in Annals of Congress vol 17, pp. 14–17 (1807).

He believed the impulse for war: Thomas Jefferson to Albert Gallatin, August 11, 1808, reprinted in Ford, ed., Works of Thomas Jefferson, vol. XI, pp. 41–42.

Embargo Act became law: Ellis, American Sphinx, pp. 237–38.

embargo was not popular: Meacham, Art of Power, pp. 432–33.

As Virginia’s governor: Michael Kranish, Flight from Monticello: Thomas Jefferson at War (Oxford: Oxford University Press, 2010), pp. 181–83.

dear friend James Madison: Meacham, Art of Power, pp. 433–34.

near constant stream of admirers: Ibid., pp. 451–52; 463–65; Ellis, American Sphinx, pp. 232–33.

pleasant as this new life was: Meacham, Art of Power, pp. 452–55.

One notable intrusion: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, pp. 78–79.

author of the letter: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in ibid., pp. 78–79.

Marylander of modest means: John Colvin to Thomas Jefferson, December 21, 1814, reprinted in ibid., Papers of Thomas Jefferson, vol. VIII, p. 151.

“his leisure hours”: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in ibid., vol. III, p. 78; Jeremy D. Bailey, Thomas Jefferson and Executive Power (Cambridge, MA: Cambridge University Press, 2007), p. 252 n.100.

convince President Madison: Linklater, Artist in Treason, pp. 290–92; Robert Allen Rutland, James Madison: Founding Father (Columbia, Curators of the University of Missouri First University of Missouri Press, 1997), pp. 220–21.

Wilkinson especially wanted the book: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, pp. 78–79; Jeremy David Bailey, “Executive Prerogative and the ‘Good Officer’ in Thomas Jefferson’s Letter to John B. Colvin,” Presidential Studies Quarterly, vol. XXXIV, pp. 734–35.

Colvin agreed: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, Papers of Thomas Jefferson, vol. III, pp. 78–79; Bailey, “Executive Prerogative,” pp. 734–35.

Colvin was hopeful: Ibid., p. 734.

“Character of republican . . . misstated or mistaken”: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, p. 78.

“neither man nor woman . . . treason such a period”: John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, pp. 78–79.

“good officer”: Thomas Jefferson to John Colvin, September 20, 1810, reprinted in Ford, The Works of Thomas Jefferson, vol. XII, pp. 146–50.

“salus populi . . . written law”: Thomas Jefferson to John Colvin, September 20, 1810, reprinted in ibid., pp. 146–50.

“against the law”: Thomas Jefferson to John Colvin, September 20, 1810, reprinted in ibid., pp. 146–50.

He offered his reply: Ibid.

portions of the book: General James Wilkinson, Memoirs of My Own Times (Philadelphia: Abraham Small, 1816); John Colvin to Thomas Jefferson, September 14, 1810, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, p. 78; Bailey, Jefferson and Executive Power, p. 252 n.100.

Only Colvin and President Madison’s wife: John Colvin to Thomas Jefferson, February 4, 1811, reprinted in Looney, ed., Papers of Thomas Jefferson, vol. III, p. 359–60.

slave-owning author: Charles Burleigh Galbreath, Thomas Jefferson’s Views on Slavery (Columbus: Library of Congress, 1925), p. 201.

In time: Bailey, Jefferson and Executive Power, p. 252 n.100.

“entire direction of war”: Alexander Hamilton, Propositions for a Constitution of Government, June 18, 1787, reprinted in Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York: G. P. Putnam’s Son’s, 1904), vol. I, p. 348.

Chapter 5

 The Man on Horseback

epigraph: Alexander J. Dallas to Andrew Jackson, July 1, 1815, reprinted in John Spencer Bassett, ed., Correspondence of Andrew Jackson (Washington, D.C.: Carnegie Institution, 1927), vol. II, pp. 211–13.

Small of stature, often sick: Hugh Howard, Mr. and Mrs. Madison’s War (New York: Bloomsbury Press, 2012), pp. 28, 63–65; Andrew Burstein and Nancy Isenberg, Madison and Jefferson (New York: Random House Trade Paperbacks, 2010), pp. 14–15, 470.

“little Jim”: Howard, Mr. and Mrs. Madison’s War, pp. 143–44.

nation needed to prove itself: A.J. Langguth, Union 1812: The Americans Who Fought the Second War of Independence (New York: Simon & Schuster, 2006), pp. 79–80; Walter R. Borneman, 1812: The War that Forged a Nation (New York: Harper Perennial, 2005), pp. 49–50.

war message to Congress: reprinted in William S. Dudley, ed., The Naval War of 1812: A Documentary History (Washington, D.C.: Naval Historical Center, 1985), vol. I, p. 73.

The clerk then read: Borneman, War that Forged a Nation, pp. 49–50.

“Whether the United States shall continue passive”: President James Madison to Congress, June 1, 1812, reprinted in Dudley, Naval War of 1812, vol. I, p. 80.

“stamped by a unanimity”: see Gaillard Hunt, ed., The Writings of James Madison (New York: G. P. Putnam’s Sons, 1908), vol. VIII, p. 83.

bitterly divided vote: Anthony S. Pitch, The Burning of Washington (Annapolis, MD: Naval Institute Press, 1998), p. 16; Borneman, War that Forged a Nation, pp. 49–51.

jointly approved declaration: An Act Declaring War Between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories, June 18, 1812, United States Statutes at Large, vol. II, p. 755.

News of the decision eventually seeped: Robert Allen Rutland, The Presidency of James Madison (Lawrence, KS: University Press of Kansas, 1990), pp. 102–03.

“ghostly pale”: David S. Heidler and Jeanne T. Heidler, Henry Clay: The Essential American (New York: Random House, 2010), p. 98; Borneman, War that Forged a Nation, p. 51; Rutland, Presidency of James Madison, pp. 102–03.

“Mr. Madison’s War”: John Lowell, “Mr. Madison’s War,” Evening Post (July 31–August 10, 1812); Rutland, Presidency of James Madison, p. 129; Irving Brant, James Madison: Commander in Chief, 1812–1836 (New York: The Bobbs-Merrill Company, Inc., 1961), p. 31; Howard, Mr. and Mrs. Madison’s War, p. 45.

set things in motion: Pitch, Burning of Washington, pp. 13–16; Rutland, Presidency of James Madison, pp. 95–97; Burstein and Isenberg, Madison and Jefferson, pp. 499–503.

visiting all the war departments: Brant, Commander in Chief, p. 22.

English representative approached Madison: Ibid., pp. 33–34.

Thanks to Jefferson’s successful efforts: Borneman, War that Forged a Nation, pp. 45–46.

“With a view to enable”: James Madison to Thomas Jefferson, February 7, 1812, reprinted in J. C. A. Stagg et al., eds., The Papers of James Madison: Presidential Series (Charlottesville, VA: University Press of Virginia, 1999), vol. IV, pp. 168–69.

“I have much doubted”: Thomas Jefferson to James Madison, February 19, 1812, reprinted in Stagg, eds., Papers of James Madison, vol. IV, pp. 195–96.

“mixture of good & bad”: James Madison to Thomas Jefferson, February 7, 1812, reprinted in Stagg, eds., Papers of James Madison, vol. IV, pp. 168–69.

nation was bitterly divided: Borneman, The War that Forged a Nation, pp. 48–49; Rutland, Presidency of James Madison, pp. 102–07, 126–32; Brant, Commander in Chief, pp. 13–32; Burstein and Isenberg, Madison and Jefferson, pp. 507–11.

former president had suggested: Thomas Jefferson to James Madison, June 29, 1812, reprinted in Stagg, eds., Papers of James Madison, vol. IV, p. 519; Burstein and Isenberg, Madison and Jefferson, pp. 511–12.

Madison made clear: Brant, Commander in Chief, p. 24; Burstein and Isenberg, Madison and Jefferson, p. 512.

made that clear from the bench: Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).

The case concerned: Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).

Jefferson had begged: Thomas Jefferson to James Madison, October 15, 1810, reprinted in Stagg, eds., The Papers of James Madison: Presidential Series (Charlottesville, VA: University Press of Virginia, 1999), vol. II, pp. 580–81; Burstein and Isenberg, Madison and Jefferson, p. 505.

Story’s dissenting opinion: Brown v. United States, 12 U.S. (8 Cranch) 110, 129 (1814) (Story, J. dissenting).

situation concerned Elijah Clark: “Case of Clark the Spy,” The Military Monitor and American Register (Feb. 1, 1813), pp. 121–22; Jan Ellen Lewis, “Defining the Nation: 1790 to 1898,” in Daniel Farber, ed., Security v. Liberty: Conflicts between Civil Liberties and National Security in American History, Daniel Farber, ed. (New York: Russell Sage Foundation, 2008), p. 134; Brant, Commander in Chief, p. 233; The Documentary History of the Campaign Upon the Niagara Frontier in the Year 1812 (E. Cruikshank, ed.), pp. 294–95.

“hung by the neck”: Ingrid Brunk Wuerth, “The President’s Power to Detain ‘Enemy Combatants’: Modern Lessons from Mr. Madison’s Forgotten War,” Northwestern Law Review, vol. 98 (2004), pp. 1583–85.

“citizens of or owing”: Articles of War, reprinted in Isaac Maltby, A Treatise on Courts Martial and Military Law (Boston: Thomas B. Wait & Co., 1813), p. 35.

Clark was an American: “Case of Clark the Spy,” pp. 121–22; Wuerth, “President’s Power to Detain,” pp. 1583–85; Lewis, “Defining the Nation,” p. 134; Brant, Commander in Chief, p. 233.

spot a smallish figure: Howard, Mr. and Mrs. Madison’s War, pp. 194, 210–11; Borneman, War that Forged a Nation, pp. 228–29; Brant, Commander in Chief, p. 308.

Madison found himself: Donald Dewey & Barbara Bennett Peterson, James Madison: Defender of the American Republic (New York: Nova Science Publishers, 2011), pp. 189–90; Howard, Mr. and Mrs. Madison’s War, pp. 194, 210–11; Borneman, War that Forged a Nation, pp. 228–29; Brant, Commander in Chief, p. 308.

After meeting with his war council: Memorandum, August 24, 1814, reprinted in Gaillard Hunt, ed., The Writings of James Madison (New York: G. P. Putnam’s Sons, 1908), vol. VIII, pp. 295–96; George Campbell to Congress, December 7, 1814, reprinted in American State Papers: Military Affairs (Washington, D.C.: Gales and Seaton, 1832), vol. I, pp. 597–99; Borneman, War that Forged a Nation, pp. 226–29.

Madison was alarmed by the passivity: Memorandum, August 24, 1814, reprinted in Hunt, ed., Writings of James Madison, vol. VIII, pp. 294–96; George Campbell to Congress, December 7, 1814, reprinted in American State Papers, vol. I, pp. 597–99; Brant, Commander in Chief, pp. 298–301.

No president had done so: Joseph J. Ellis, His Excellency: George Washington (New York: Alfred A. Knopf, 2004), pp. 224–26.

“observed to the Secretary of War . . . and returned to it”: Memorandum, August 24, 1814, reprinted in Hunt, ed., Writings of James Madison, vol. VIII, p. 297; Borneman, War that Forged a Nation, p. 227.

she had famously begun packing: Howard, Mr. and Mrs. Madison’s War, pp. 190–95; Borneman, War that Forged a Nation, p. 230; Rutland, The Presidency of James Madison, p. 164.

arrived at his “palace”: Samuel Eliot Morison, “Our Most Unpopular War,” Proceedings of the Massachusetts Historical Society, vol. 80, p. 40; Burstein and Isenberg, Madison and Jefferson, p. 547.

By the time the president returned: Borneman, War that Forged a Nation, pp. 231–33; Rutland, Presidency of James Madison, pp. 163–65; Brant, Commander in Chief, p. 310; Howard, Mr. and Mrs. Madison’s War, pp. 210–11, 214.

forceful and daring: Dewey and Peterson, Defender of the American Republic, pp. 199–200; Howard, Mr. and Mrs. Madison’s War, pp. 266–71; Borneman, War that Forged a Nation, pp. 290–92; Rutland, Presidency of James Madison, p. 185–87.

declared martial law: Jackson’s order to D.A. Hall, March 11, 1815, reprinted in Bassett, ed., Correspondence of Andrew Jackson, vol. II, pp. 189–90; James Parton, Life of Andrew Jackson (Boston: Houghton, Mifflin and Company, 1885), vol. II, pp. 311–313; George M. Dennison, “Martial Law: The Development of a Theory of Emergency Powers 1776–1861,” American Journal of Legal History, vol. XVIII (1974), pp. 61–62; Brant, Commander in Chief, pp. 363, 383; Matthew Warshauer, “The Legacy of the Battle of New Orleans,” A Companion to the Era of Andrew Jackson, Sean Patrick Adams, ed. (Malden, MA: Wiley-Blackwell, 2013), pp. 85–88.

“surprise . . . from all unmerited reproach”: Alexander J. Dallas to Andrew Jackson, April 12, 1815, reprinted in Bassett, ed., Correspondence of Andrew Jackson, vol. II, pp. 203–04; Brant Commander in Chief, pp. 383–86.

“President would willingly . . . means of vindication”: Alexander J. Dallas to Andrew Jackson, July 1, 1815, reprinted in Bassett, ed., Correspondence of Andrew Jackson, vol. II, pp. 211–13.

Madison would not excuse Jackson: John Henry Eaton, The Life of Andrew Jackson (Philadelphia: Samuel F. Bradford, 1824), p. 419; James Parton, Life of Andrew Jackson (Boston: Houghton, Mifflin and Company, 1885), vol. II, p. 319; Dennison, “Martial Law,” vol. XVIII, p. 63.

Madison said nothing: Andrew Jackson to Alexander J. Dallas, May 23, 1815, reprinted in Bassett, ed., Correspondence of Andrew Jackson, vol. II, pp. 206–07.

Jackson soon descended on Washington: Parton, Life of Andrew Jackson, vol. II, pp. 334–35; Andrew Jackson to John Coffee, Dec. 4, 1815, reprinted in Harold Moser et al., eds., The Papers of Andrew Jackson, (Knoxville: University of Tennessee Press, 1991), vol. III, pp. 394–95.

eager to make his case: Matthew Warshauer, “The Legacy of the Battle of New Orleans,” A Companion to the Era of Andrew Jackson, Sean Patrick Adams, ed. (Malden: Wiley-Blackwell, 2013), pp. 86–87.

general felt good after leaving: Andrew Jackson to John Coffee, Dec. 4, 1815, reprinted in Moser, Papers of Andrew Jackson, vol. III, pp. 394–95; Parton, Life of Andrew Jackson, vol. II, pp. 334–35.

“a further explanation”: Ried to John Coffee, Nov. 21, 1815, reprinted in Moser, Papers of Andrew Jackson, vol. III, pp. 395 n.5.

Chapter 6

 Antebellum

epigraph: Mr. Dunham, Cong. Globe, 32d Cong., 1st Sess. (1852), p. 517.

“unlimited in every matter . . . prescribed by those acts”: Joseph Story, Commentaries on the Constitution of the United States (Boston: Hillard, Gray & Co., 1833), vol. III, pp. 62, 68.

“higher than law . . . against the law”: Thomas Jefferson to John Colvin, September 20, 1810, reprinted in Paul Leicester Ford, ed., The Works of Thomas Jefferson (New York and London: G.P. Putnam’s Sons, 1904–05), vol. XII, pp. 146–50.

True, this prerogative: John Locke, Two Treatises of Government, Peter Laslett, ed. (Cambridge, UK: Cambridge University Press, 1960), pp. 383–84; David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review, vol. 121, no. 4 (February 2008), pp. 745–47.

“the obligation of the law”: William Rawle, A View of the Constitution of the United States of America (Philadelphia: H.C. Carey & I. Lea, 1829), pp. 153–54.

Each time Jackson seemed about to rise: Harold Moser et al., eds., Andrew Jackson to Samuel Swartwout, March 25, 1824, reprinted in The Papers of Andrew Jackson, (Knoxville: University of Tennessee Press, 1991), vol. V, p. 90; Matthew Warshauer, “The Legacy of the Battle of New Orleans,” A Companion to the Era of Andrew Jackson, Sean Patrick Adams, ed. (Malden: Wiley-Blackwell, 2013), p. 90.

of course, he did eventually: Jon Meacham, American Lion: Andrew Jackson in the White House (New York: Random House, 2008), p. 28; Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown and Company, 1945), pp. 42–44.

three decades later: Matthew Warshauer, Andrew Jackson and the Politics of Martial Law (Knoxville: University of Tennessee Press, 2006), pp. 170–74.

Whigs fashioned themselves: Meacham, American Lion, pp. 288–89.

Jackson won his recompense: Warshauer, Politics of Martial Law, p. 177.

Congress had declared war: Cong. Globe, 29th Cong., 1st Sess. (1846), pp. 795–805.

Critics claimed: Abraham Lincoln, Speech of January 12, 1848, Cong. Globe, 30th Cong., 1st Sess. (1848), pp. 94–95.

During the hostilities: Cong. Globe, 32d Cong., 1st Sess. (1852), p. 507; David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding,” Harvard Law Review, vol. 121 (2008), pp. 991–92; Robert Marshall Utley, Frontiersmen in Blue: The United States and the Indian, 1848–1864 (Lincoln: University of Nebraska Press, 1981), p. 104 n.34.

“so strange, so novel”: Cong. Globe, 32d Cong., 1st Sess. (1852), pp. 507–509, 517–20.

Chapter 7

 Confronting Secession

epigraph: Jeremiah Black, “Opinion of Jeremiah Black to James Buchanan, Power of the President Executing the Laws,” Opinion of the Attorney General, (November 20, 1860), vol. 9, p. 516.

Aging, infirm, and hugely overweight: Wayne Fanebust, Major General Alexander M. Mccook, USA (Jefferson, NC: McFarland & Company, Inc., 2013), pp. 32–33.

His “views”: Winfield Scott, “General Scott’s Views,” Daily National Intelligencer, issue 15 (January 18, 1861), p. 113.

Scott sent those views: George Ticknor Curtis, Life of James Buchanan: Fifteenth President of the United States (New York: Harper & Brothers, 1883), vol. II, pp. 297–302, 365–68, 416–17.

Scott even published them: Scott, “Scott’s Views,” p. 113.

The president was not pleased: Curtis, Life of James Buchanan, vol. II, pp. 301–02.

former secretary of state and member of Congress: Jean Baker, James Buchanan (New York: Henry Holt and Company, 2004), p. 9.

He was now fond of: Ibid., pp. 47; Adam Goodheart, 1861: The Civil War Awakening (New York: Alfred A. Knopf, 2011), pp. 78–79.

called him “the Old Squire”: William Norwood Brigance, Jeremiah Sullivan Black: A Defender of the Constitution and the Ten Commandments (Philadelphia: University of Pennsylvania Press, 1934), p. 72.

But whatever breach of protocol: Scott, “Scott’s Views,” p. 113; Brigance, Jeremiah Sullivan Black, p. 83; Curtis, Life of James Buchanan, vol. II, pp. 302–07.

questions would be as difficult as any president: Baker, James Buchanan, pp. 108–112; Steven G. Calabresi and Christopher S. Yoo, “The Unitary Executive during the Second Half-Century,” Harvard Journal of Law and Policy, vol. 26 (Cambridge, MA), pp. 709–710.

Scott’s views: Brigance, Jeremiah Sullivan Black, p. 83; Curtis, Life of James Buchanan, vol. II, pp. 302–04; Scott, “Scott’s Views,” p. 113.

President Buchanan realized: Elbert B. Smith, The Presidency of James Buchanan (Lawrence, KS: University Press of Kansas, 1975), pp. 143–44; Curtis, Life of James Buchanan, vol. II, pp. 303–05, 334–35.

Buchanan . . . willed himself: Smith, Presidency of James Buchanan, pp. 143–45, 182, 189; Philip Shriver Klein, President James Buchanan: A Biography (University Park, PA: The Pennsylvania State University Press, 1964), pp. 363–64; Goodheart, 1861, p. 82.

He believed Congress had not given: James Buchanan, Mr. Buchanan’s Administration on the Eve of the Rebellion (New York: D. Appleton and Company, 1866), pp. 125–27, 129–31.

“the tyrant’s plea”: Winfield Scott, Memoirs of Lieut.-General Scott, LL. D. (New York: Shelton & Company, Publishers, 1861), p. 267.

architect of President Buchanan’s: Chauncey F. Black, Essays and Speeches of Jeremiah S. Black: With a Biographical Sketch (New York: D. Appleton, 1885), p. 8; Francis Newton Thorpe, “Jeremiah S. Black,” Pennsylvania Magazine of History and Biography, vol. 50, no. 3 (July 1926), pp. 117–133; Phillip Gerald Auchampaugh, James Buchanan and His Cabinet on the Eve of Secession (Lancaster, PA: Private, 1926), pp. 99–101, 139.

Black believed Buchanan: Joseph Carson, “Book Review: Jeremiah Sullivan Black, by William Norwood Brigance.” University of Pennsylvania Law Review, vol. 83, issue 4 (February 1935), p. 546.

Buchanan held his protégé: Black, Essays and Speeches, pp. 24–25; Auchampaugh, Buchanan and His Cabinet, pp. 99–101, 139; Curtis, Life of James Buchanan, vol. II, p. 325; Brigance, Jeremiah Sullivan Black, p. 72.

Black’s formal schooling: Black, Essays and Speeches, pp. 2–5; Carson, “Book Review,” p. 545; Mary Black Clayton, Reminiscences of Jeremiah Sullivan Black (Christian Publishing Company, 1887), pp. 17–20.

served as chief justice: Thorpe, “Jeremiah S. Black,” pp. 125–26.

“Judge Black”: Curtis, Life of James Buchanan, vol. II, p. 382, 400, 522, 530, 558, 639.

Black’s chance to serve on the Court: Black, Essays and Speeches, pp. 24–25.

“Rumpled . . . ungainly”: Brigance: Jeremiah Sullivan Black, p. 5.

“intoxicant”: F. Black, Essays and Speeches, p. 30.

He also could be: Brigance, Jeremiah Sullivan Black, p. 5; Clayton, Jeremiah Sullivan Black, pp. 132–33.

at root a man of principle: Black, Essays and Speeches, pp. 30–31; Auchampaugh, Buchanan and His Cabinet, pp. 101–02, 114, 139; Clayton, Jeremiah Sullivan Black, pp. 25–26, 139.

In his constitutional thinking: Curtis, Life of James Buchanan, vol. II, pp. 326–28.; Brigance, Jeremiah Sullivan Black, p. 78.

abolitionists had developed: Ibid.; Jeremiah Black, “Mr. Black to Mr. Wilson,” Galaxy, vol. 11, issue 2 (February 1871), p. 262; Frank Burr, “Judge Black’s Answer,” Philadelphia Weekly Press (September 13, 1883).

“covenant with death”: William Loyd Garrison “New England A.S. Convention,” reported by I. M. W. Harington, in The Liberator (Boston: June 15, 1855).

Arguments that placed the need: Curtis, Life of James Buchanan, vol. II, pp. 326–28; Brigance, Jeremiah Sullivan Black, p. 78.

“absolute despotism”: Jeremiah Black, “Senator Wilson and Edwin M. Stanton,” Galaxy, vol. 9, issue 6 (June 1870), p. 817.

he was hardly reluctant: Black, “Mr. Black to Mr. Wilson,” pp. 265–67; Burr, “Judge Black’s Answer.”

dispute concerned: Russell F. Weigley, Quartermaster General of the Union Army (New York: Columbia University Press, 1959), pp. 61–63, 77–78; Sherrod E. East, “The Banishment of Captain Meigs,” Records of the Columbia Historical Society (1940), pp. 99–100.

But Meigs’s combination: Ibid., pp. 101–05; Auchampaugh, Buchanan and His Cabinet, p. 92; Weigley, Quartermaster General, pp. 79–112, 115, 129; William C. Dickinson, Dean A. Herrin, and Donald R. Kennon, eds., Montgomery C. Meigs and the Building of the Nation’s Capitol (Athens, OH: Ohio University Press, 2001), p. 174.

With Floyd trying to strip: Weigley, Quartermaster General, pp. 102–04; Dickinson et al., Montgomery C. Meigs, p. 177, East, “Banishment of Captain Meigs,” pp. 99–108; Weigley, Quartermaster General, pp. 102–04; Brigance, Jeremiah Sullivan Black, pp. 69–70; Harold K. Skramstad, “The Engineer as Architect in Washington: The Contribution of Montgomery Meigs,” Records of the Columbia Historical Society (1970), pp. 268–71, 276.

president could give notice: Weigley, Quartermaster General, p. 104; East, “Banishment of Captain Meigs,” pp. 129–31.

Signaling his intention to act: Weigley, Quartermaster General, p. 104; East, “Banishment of Captain Meigs,” pp. 99–100, 106–08.

“might upon the same principle”: James Buchanan, “Special Message to the House of Representatives: June 25, 1860,” The American Presidency Project, available at: http://www.presidency.ucsb.edu/ws/index.php?pid=68444.

Floyd ordered Meigs removed: “Memorial of Captain Meigs,” Opinion of the Attorney General (1860) vol. 9, pp. 462–71; Weigley, Quartermaster General, pp. 104–12.

furious Buchanan: East, “Banishment of Captain Meigs,” pp. 127–31; “Memorial of Captain Meigs,” pp. 468–69.

instructions pointedly provided: William C. Dickinson et al., Montgomery C. Meigs, pp. 177–79; East, “Banishment of Captain Meigs,” pp. 131–36; “Memorial of Captain Meigs,” pp. 462–71.

By the late fall: Buchanan, Buchanan’s Administration, pp. 99–101; Curtis, Life of James Buchanan, vol. II, p. 313, 325, 342.

at best, there were only vague: “An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasion; and to Repeal the Act now in Force for Those Purposes” (February 28, 1795), 1 Stat. 424; “An Act Authorizing the Employment of the Land and Naval Forces in Cases of Insurrections” (March 3, 1807), 2 Stat. 443; Buchanan, Buchanan’s Administration, pp. 125–126; Smith, Presidency of James Buchanan, pp. 147.

Though jealous of its right to declare war: “An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasion; and to Repeal the Act now in Force for Those Purposes” (February 28, 1795), 1 Stat. 424; “An Act Authorizing the Employment of the Land and Naval Forces in Cases of Insurrections” (March 3, 1807), 2 Stat. 443.

hazards on all sides: Buchanan, Buchanan’s Administration, pp. 128–31.

Buchanan was conflicted: Auchampaugh, Buchanan and His Cabinet, pp. 30–31, 146.

Buchanan was so certain: Buchanan, Buchanan’s Administration, p. 48; James Buchanan, “Inaugural Address” (March 4, 1857), http://www.presidency.ucsb.edu/ws/?pid=25817.

They had even challenged: Buchanan, Buchanan’s Administration, pp. 65–69.

biases caused the president: Auchampaugh, James Buchanan and His Cabinet, pp. 14–15; Buchanan, Buchanan’s Administration, pp. 62–65.

to Buchanan and those who thought like him: Scott, Memoirs, vol. II, pp. 609–11; Auchampaugh, Buchanan and His Cabinet, pp. 62–63.

Buchanan’s thought processes: Chester G. Hearn, Six Years of Hell: Harper’s Ferry During the Civil War (Baton Rouge, LA: LSU Press, 1999), pp. 17, 22, 29–40; Curtis, Life of James Buchanan, vol. II, pp. 322–23, 554.

decision to use military: Daniel A. Farber, Lincoln’s Constitution (New York: Harper & Brothers, 1883), pp. 75–76; Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1995), p. 131, 177; Douglas R. Egerton, Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election that Brought on the Civil War (New York: Bloomsbury Press, 2010), pp. 225–26.

That November, on the day after: Bruce Catton, The Coming Fury (Garden City, NY: Doubleday & Company, 1961), pp. 123–24.

president wanted to know: Ibid., pp. 123–25; Curtis, Life of James Buchanan, vol. II, pp. 315–19.

Black quickly . . . “no”: Burr, “Judge Black’s Answer”; Catton, Coming Fury, pp. 125–26; Curtis, Life of James Buchanan, vol. II, pp. 319–24.

union was . . . “perpetual”: Burr, “Judge Black’s Answer”; Smith, Presidency of James Buchanan, p. 146; Catton, Coming Fury, pp. 125–26; Buchanan, Buchanan’s Administration, p. 122; Curtis, Life of James Buchanan, vol. II, pp. 319–24.

cabinet meeting on November 9: Brigance, Jeremiah Sullivan Black, pp. 82–83; Catton, Coming Fury, pp. 123–25, 128; Auchampaugh, James Buchanan and His Cabinet, pp. 130–32, 146.

compromise also contemplated: Curtis, Life of James Buchanan, vol. II, pp. 308–09, 359, 412.

Buchanan clung: Catton, Coming Fury, pp. 123–28; Brigance, Jeremiah Sullivan Black, pp. 82–83; Scott, “Scott’s Views,” p. 113; Weigley, Quartermaster General, p. 125.

reinforcements should be sent: Brigance, Jeremiah Sullivan Black, pp. 75, 82–83; Catton, Coming Fury, p. 124; Curtis, Life of James Buchanan, vol. II, p. 385; H. Jefferson Powell, The Constitution and the Attorneys General (Durham, NC: Carolina Academic Press, 1999), p. 167; Auchampaugh, Buchanan and His Cabinet, pp. 132–34.

days that followed: Auchampaugh, Buchanan and His Cabinet, pp. 132–34; Burr, “Judge Black’s Answer.”

“annoyed”: Henry Wilson, “Jeremiah S. Black and Edwin M. Stanton,” Atlantic Monthly, vol. 26, issue 157 (October 1870), pp. 471–73.

Black met with the president: James Buchanan to Jeremiah Black, Requesting Attorney General’s Opinion (November 17, 1860), in Curtis, Life of James Buchanan, vol. II, p. 319.

Black wrote them out: Ibid., pp. 319–24; Black, “Opinion of Jeremiah Black,” pp. 516.

He even asked Buchanan: Brigance, Jeremiah Sullivan Black, p. 84.

He also wanted to be clear: Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” pp. 264–65; Auchampaugh, Buchanan and His Cabinet, pp. 134–35.

legal questions at last in hand: Curtis, Life of James Buchanan, vol. II, pp. 319–24; Auchampaugh, James Buchanan and His Cabinet, pp. 134–35.

“is to be used only in the manner”: Black, “Opinion of Jeremiah Black,” vol. 9, p. 516; Curtis, Life of James Buchanan, vol. II, pp. 319–24; Auchampaugh, James Buchanan and His Cabinet, pp. 134–35; Brigance, Jeremiah Sullivan Black, p. 78.

two older statutes: “An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasion; and to Repeal the Act now in Force for Those Purposes” (February 28, 1795), 1 Stat. 424; “An Act Authorizing the Employment of the Land and Naval Forces in Cases of Insurrections” (March 3, 1807), 2 Stat. 443; Black, “Opinion of Jeremiah Black,” vol. 9, p. 516; Burr, “Judge Black’s Answer”; Curtis, Life of James Buchanan, vol. II, p. 322.

Black then explained: Black, “Opinion of Jeremiah Black,” vol. 9, p. 516; Curtis, Life of James Buchanan, pp. 319–24; Powell, Constitution and the Attorneys General, p. 167; Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” pp. 264–66.

Customs duties should be collected: Black, “Opinion of Jeremiah Black,” vol. 9, p. 516; Curtis, Life of James Buchanan, vol. II, pp. 319–24.

“coerced”: “Opinion of Jeremiah Black,” vol. 9, p. 516; Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” pp. 264–66.

Buchanan, thanks to Black: Black, “Opinion of Jeremiah Black,” vol. 9, p. 516; “An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasion; and to Repeal the Act now in Force for Those Purposes” (February 28, 1795), 1 Stat. 424; “An Act Authorizing the Employment of the Land and Naval Forces in Cases of Insurrections” (March 3, 1807), 2 Stat. 443; Curtis, Life of James Buchanan, vol. II, pp. 319–24.

Once a state seceded: Ibid., p. 323.

criticism of Black’s opinion: Wilson, “Black and Stanton,” p. 468; Black, “Mr. Black to Mr. Wilson,” pp. 259, 264–65; Curtis, Life of James Buchanan, vol. II, pp. 325–29; Brigance, Jeremiah Sullivan Black, pp. 84–90.

“It is the duty of the president”: Walter Stahr, Seward: Lincoln’s Indispensable Man (New York: Simon & Schuster Paperbacks, 2012), p. 211.

basic, mocking characterization: Brigance, Jeremiah Sullivan Black, pp. 84–90.

“once seemed . . . that the world ever saw”: Auchampaugh, Buchanan and His Cabinet, p. 109.

Even still, decades later: Burr, “Judge Black’s Answer.”

nothing in his legal analysis: Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” p. 264.

But, on reflection: Burr, “Judge Black’s Answer.”

Buchanan had asked Black a key question: Auchampaugh, Buchanan and His Cabinet, pp. 101–02; Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” p. 264.

might also have avoided the trouble: Auchampaugh, Buchanan and His Cabinet, pp. 75, 138; Brigance, Jeremiah Sullivan Black, pp. 86, 99–102; Buchanan, Buchanan’s Administration, p. 129; Curtis, Life of James Buchanan, vol. II, pp. 381–82.

“have stated conclusions”: Burr, “Judge Black’s Answer.”

By the time Black: Brigance, Jeremiah Sullivan Black, pp. 86–87; Curtis, Life of James Buchanan, vol. II, pp. 333, 399; Auchampaugh, Buchanan and His Cabinet, pp. 137–41; Buchanan, Buchanan’s Administration, p. 109.

Black was, for many: Burr, “Judge Black’s Answer”; Wilson, “Black and Stanton,” pp. 463–75.

December drew to a close: Gaillard Hunt, “Narrative and Letter of William Henry Trescot, Concerning the Negotiations Between South Carolina and President Buchanan in December, 1860,” American Historical Review, vol. 13, no. 3 (April 1908), p. 533; Brigance, Jeremiah Sullivan Black, p. 78.

crucial test came near Christmas: Brigance, Jeremiah Sullivan Black, p. 94; Auchampaugh, Buchanan and His Cabinet, pp. 75, 154–55; Smith, Presidency of James Buchanan, p. 143, 176.

Anderson was certain: Smith, Presidency of James Buchanan, p. 169; Curtis, Life of James Buchanan, vol. II, pp. 358, 366; Smith, Presidency of James Buchanan, pp. 13–15; Brigance, Jeremiah Sullivan Black, p. 94.

For Black, the notion: Brigance, Jeremiah Sullivan Black, pp. 98–101.

In Black’s view, therefore: Smith, Presidency of James Buchanan, p. 177; Black, “Opinion of Jeremiah Black,” vol. 9, p. 516.

under cover of night: Smith, Presidency of James Buchanan, pp. 178–81; Goodheart, 1861, pp. 13–15; David Detzer, Allegiance (New York: Harcourt, Inc., 2001), p. 113; Hunt, “Narrative and Letter,” pp. 545–50.

president was horrified: Smith, Presidency of James Buchanan, pp. 179–81; Auchampaugh, Buchanan and His Cabinet, pp. 96–97; Goodheart, 1861, pp. 13–15, 136–37; Detzer, Allegiance, pp. 77–78, 137–48; Brigance, Jeremiah Sullivan Black, pp. 94–95.

cabinet meeting that followed: Smith, Presidency of James Buchanan, pp. 179–80; Auchampaugh, Buchanan and His Cabinet, pp. 96–98; Black, Essays and Speeches, p. 12.

“whenever you have tangible evidence”: Curtis, Life of James Buchanan, vol. II, p. 376.

“the last extremity”: Buchanan, Buchanan’s Administration, pp. 165–67; Curtis, Life of James Buchanan, vol. II, p. 376; Brigance, Jeremiah Sullivan Black, pp. 94–96.

“discretion . . . hold the possession”: George Congdon Gorham, Life and Public Services of Edwin M. Stanton (Boston and New York: Houghton, Mifflin and Company, 1899), vol. 1, pp. 131–33.

“Whether the president intended”: Burr, “Judge Black’s Answer.”

When the president read: Brigance, Jeremiah Sullivan Black, pp. 94–96; Smith, Presidency of James Buchanan, pp. 179–80; Auchampaugh, Buchanan and His Cabinet, pp. 96–98; Black, Essays and Speeches, p. 13.

“see how we . . . general breaking up”: Burr, “Judge Black’s Answer”; Auchampaugh, Buchanan and His Cabinet, p. 120.

Black resolved: Burr, “Judge Black’s Answer”; The Philadelphia Weekly Press (September 13, 1883); Gorham, Life and Public Services, vol. 1, pp. 146–47.

rumor of Black’s impending exit: Auchampaugh, Buchanan and His Cabinet, pp. 110–11; Burr, “Judge Black’s Answer”; Gorham, Life and Public Services, vol. 1, pp. 146–47; Smith, Presidency of James Buchanan, pp. 180–82; Curtis, Life of James Buchanan, vol. II, pp. 381–83.

Black was spared making a decision: Gorham, Life and Public Services, vol. 1, pp. 146–47; Auchampaugh, Buchanan and His Cabinet, pp. 110–11; Burr, “Judge Black’s Answer”; Smith, Presidency of James Buchanan, pp. 180–82.

Confronted with Black’s critique: Auchampaugh, Buchanan and His Cabinet, pp. 110–11; Burr, “Judge Black’s Answer”; Smith, Presidency of James Buchanan, pp. 180–81.

Days after the critical cabinet meeting: Gorham, Life and Public Services, vol. 1, p. 145; Curtis, Life of James Buchanan, vol. II, p. 410.

“manly courage”: C.J. Wood, Reminiscences of the War: Biography and Personal Sketches of all the Commanding Officers in the Union Army (1863), p. 155.

“thunderbolt” in the Senate: Mark J. Stegmaier, ed., Henry Adams in the Secession Crisis: Dispatches to the Boston Daily (Baton Rouge, LA: LSU Press, 2012), p. 81.

As a backup, Buchanan: Buchanan, Buchanan’s Administration, p. 159; Curtis, Life of James Buchanan, vol. II, pp. 482–83; Auchampaugh, Buchanan and His Cabinet, p. 175.

That way, without usurping: “An Act Further to Provide for the Collection of Duties on Imports” (1833), 4 Stat. 632. “An Act Authorizing the Employment of Land and Naval Forces in Cases of Insurrections” (March 3, 1807), 2 Stat. 443;

just the approach Black favored: Black, “Opinion of Jeremiah Black,” vol. 9, p. 516.

neither the nomination: Buchanan, Buchanan’s Administration, pp. 159–60; Representative Bingham, Proposed Bill H.R. 910 (December 31, 1860), 36th Congress, 2nd Session; Senator Collamer, Proposed Bill S. 545, “In relation to the Collection of Duties on Imports” (January 23, 1861), 36th Congress, 2nd Session; Senator Collamer, Proposed Bill S. 545 (amended by Senator Fessenden), “In relation to the Collection of Duties on Imports” (February 4, 1861), 36th Congress, 2nd Session; Senator Collamer, Proposed Bill S. 545 (amended by Senator Hemphill), “In relation to the Collection of Duties on Imports” (February 6, 1861), 36th Congress, 2nd Session; Senator Collamer, Proposed Bill S. 545 (amended by Senator Collamer), “In relation to the Collection of Duties on Imports” (February 6, 1861), 36th Congress, 2nd Session.

Nor did a bill to give: Representative Reynolds, Proposed Bill H.R. 968 (January 30, 1861), 36th Congress, 2nd Session; Representative Stanton, Proposed Bill H.R. 1003 (February 18, 1861), 36th Congress, 2nd Session.

Buchanan continued to temporize: Stegmaier, Adams in the Secession Crisis, p. 89; Baker, James Buchanan, p. 115; Curtis, Life of James Buchanan, vol. II, pp. 374–75; Buchanan, Buchanan’s Administration, p. 189.

Meigs was even called back: Weigley, Quartermaster General, pp. 129–30.

new war secretary told Meigs: Weigley, Quartermaster General, pp. 127–29; Baker, James Buchanan, p. 115.

letters had thus helped to unmask: Weigley, Quartermaster General, pp. 120–21; David W. Miller, Second Only to Grant (Shippensburg, PA: White Mane Books, 2000), pp. 76–78.

Back in Washington: Weigley, Quartermaster General, pp. 129–30.

He was worn to the bone: Baker, James Buchanan, p. 130.

“pity”: Weigley, Quartermaster General, pp. 129–30; Baker, James Buchanan, p. 130.

Black was faring: Auchampaugh, Buchanan and His Cabinet, pp. 112–13.

His face was now sad: Ibid., pp. 112–13; Clayton, Jeremiah Sullivan Black, pp. 114–15; Black, Essays and Speeches, pp. 24–25.

Buchanan guessed that his own burning: Clayton, Jeremiah Sullivan Black, pp. 116–17; Black, Essays and Speeches, pp. 24–25.

Still, the two men: Auchampaugh, Buchanan and His Cabinet, pp. 108–09, 230; Burr, “Judge Black’s Answer”; Black, “Mr. Black to Mr. Wilson,” 257–76.

Virginia remained in the union: Curtis, Life of James Buchanan, vol. II, pp. 306, 312.

“Urgent and dangerous . . . to be endangered”: Buchanan, Buchanan’s Administration, p. 161.

“On the contrary . . . legislative branch of the Government”: Buchanan, Buchanan’s Administration, p. 161.

Chapter 8

 The War Comes

epigraph: Abraham Lincoln, “Special Session Message” (July 4, 1861) in James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

beautiful April night: Orville Hickman Browning, 1861, reprinted in Theodore Calvin Pease, ed., The Diary of Orville Hickman Browning (Springfield, IL: 1925–1933), vol. I, pp. 463–64.

“Great Union Meeting”: Henry Asbury, Reminiscences of Quincy, Illinois: Containing Historical Events, Anecdotes, Matters Concerning Old Settlers and Old Times, Etc. (Quincy, IL: D. Wilcox & Sons, Printers, 1882), p. 144.

stylish and well-schooled: Maurice Baxter, “Orville H. Browning: Lincoln’s Friend and Critic,” Indiana Magazine of History, vol. 53 (December 1957), pp. 431–35; David Herbert Donald, We Are Lincoln Men: Abraham Lincoln and His Friends (New York: Simon & Schuster, 2007), pp. 103–05, 114.

they had become friends: Maurice Baxter, “Lincoln’s Friend and Critic,” pp. 437–38.

recent crisis: Ibid., pp. 444–46; Donald, We Are Lincoln Men, pp. 103, 111–12.

Browning relished: Abraham Lincoln, Special Session Message (July 4, 1861), James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, Inc., 1917), vol. VII–VIII, pp. 3221–32; “An Act to Provide for Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasion; and to Repeal the Act now in Force for Those Purposes” (February 28, 1795), 1 Stat. 424; Donald, We Are Lincoln Men, pp. 112–13.

Browning was a good enough lawyer: Donald, We Are Lincoln Men, pp. 113–15.

coercion now the strategy: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 503; Bruce Tap, Over Lincoln’s Shoulder: The Committee on the Conduct of War (Lawrence, KS: University Press of Kansas, 1998), pp. 14–16.

Even Republicans were concerned: Cong. Globe, 37th Cong., 1st Sess. (1861) pp. 336–42; O. H. Browning, “The Quincy Herald and the President’s Proclamation,” The Quincy Daily Whig Republican (April 18, 1861), p. 2.

there was another side: Cong. Globe, 37th Cong., 2d Sess. (1862), pp. 501–17.

Browning figured especially prominently: Donald, We Are Lincoln Men, pp. 114–20.

“hard war”: James M. McPherson, Tried by War (London: Penguin Books, 2008), pp. 103–05.

Few believed Lincoln needed to wait: Abraham Lincoln, “Special Session Message,” July 4, 1861, available at: http://www.fordham.edu/halsall/mod/1861lincoln-special.asp; McPherson, Tried by War, pp. 22–25; “The Thirty-Seventh Congress: Already Elected: States to Elect,” Chicago Tribune (March 5, 1861); “Congressional Elections,” Vincennes Gazette (March 23, 1861).

At most, they argued: “Thirty-Seventh Congress.”

As Lincoln’s advisors gathered: Walter Stahr, Seward: Lincoln’s Indispensable Man (New York: Simon & Schuster Paperbacks, 2012), pp. 260–62.

“not levy armies”: William Henry Seward and Frederick William Seward, Autobiography: Seward at Washington, as Senator and Secretary of State, A Memoir of His Life, with Selections from His Letters, 1846–1861 (New York: Derby and Miller, 1891), pp. 544, 592.

Despite the legal concerns: Doris Kearns Goodwin, Team of Rivals (New York: Simon & Schuster, 2005), pp. 340–42; Seward, Autobiography, p. 544; Stahr, Seward, pp. 265–72.

“deliberative body . . . to invite disaster”: Seward, Autobiography, p. 544.

president did not disagree: McPherson, Tried by War, pp. 18–20; Lincoln, “Special Session Message,” July 4, 1861; Charles W. Ramsdell, “Lincoln and Fort Sumter,” Journal of Southern History, vol. 3 (August, 1937), pp. 287–88.

president was also picking a date: Thomas Jefferson, “Seventh Annual Message to Congress,” The American Presidency Project (October 27, 1807), available at http://www.presidency.ucsb.edu/ws/index.php?pid=29449; David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding,” Harvard Law Review, vol. 121 (2008), pp. 974–75.

In the Chesapeake affair: Jefferson, “Seventh Annual Message to Congress” (October 27, 1807); Barron and Lederman, “Commander in Chief at the Lowest Ebb,” pp. 974–76; William C. Banks and Peter Raven-Hansen, National Security Law and the Power of the Purse (New York: Oxford University Press, 1994), pp. 37–39.

“extra-legal” power: Barron and Lederman, “Commander in Chief at the Lowest Ebb,” pp. 974–76.

same could not be said: Ibid., pp. 976, 1001; Cong. Globe, 37th Cong., 2d Sess. (1861), p. 2383; McPherson, Tried by War, pp. 14–20.

Lincoln accomplished: Michael Burlingame and John R. Turner Ettlinger, eds., Inside Lincoln’s White House, “November 1861” (Southern Illinois University Press, 1999), pp. 32; Goodwin, Team of Rivals, pp. 351–52; McPherson, Tried by War, pp. 23.

Nearly simultaneously, the president: Barron and Lederman, “Commander in Chief at the Lowest Ebb,” pp. 1001–03; Cong. Globe, 37th Cong., 2d Sess. (1862); McPherson, Tried by War, p. 24.

less than a week later: Stahr, Seward, pp. 283–84.

“Whoever in later times . . . sentiment or poetry”: Abraham Lincoln to William Seward, April 19, 1861, reprinted in Roy P. Basler, ed., Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953), vol. IV, p. 339.

semblance of calm: Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States, Apr. 27, 1861, reprinted in Richardson, ed., Papers of the Presidents, vol. VII, p. 3219; Abraham Lincoln, The Lieutenant-General Commanding the Armies of the United States, June 20, 1861, reprinted in ibid., vol. VII, p. 3220; Abraham Lincoln, The Commanding General, Army of the United States, July 2, 1861, reprinted in Richardson, ed., Papers of the Presidents, vol. IV, p. 3220.

refuse the officers did: Ex Parte Merryman, 17 F. Cas. (C.C.D. Md.) 144 (1861).

Still, Lincoln was not through: McPherson, Tried by War, pp. 30–35; Ron Field, Lincoln’s 90-Day Volunteers 1861: From Fort Sumter to First Bull Run (Oxford: Osprey Publishing, 2013); D. Reid Ross, Lincoln’s Veteran Volunteers Win the War (Albany, NY: State University of New York Press, 2008), p. 25.

“put in force . . . all to the scaffold”: Stahr, Seward, p. 284.

Lincoln had been very aggressive: Louis P. Masur, Lincoln’s Hundred Days (Cambridge, MA: The Belknap Press of Harvard University Press, 2012), p. 21; Adam Goodheart, 1861: The Civil War Awakening (New York: Alfred A. Knopf, 2011), pp. 136–50; McPherson, Tried by War, pp. 23, 38–41; Field, 90-Day Volunteers; Ross, Veteran Volunteers, pp. 21–37.

“violations of the law”: Thomas Jefferson to Albert Gallatin, January 4, 1807, reprinted in Paul Leicester Ford, ed., The Works of Thomas Jefferson (New York and London: G.P. Putnam’s Sons, 1904–05), vol. X, p. 336.

“[S]ee if you can fix”: Abraham Lincoln to William H. Herndon, February 15, 1848, reprinted in John G. Nicolay and John Hay, eds., Abraham Lincoln: Complete Works, Comprising His Speeches, State Papers, and Miscellaneous Writings (New York: The Century Co., 1920), vol. I, p. 111–12; Abraham Lincoln, Speech of January 12, 1848, Cong. Globe, 30th Cong., 1st Sess. (January 12, 1848), pp. 94–95.

In late April: Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States (April 27, 1861), Richardson, ed., Papers of the Presidents, vol. VII, p. 3219; Abraham Lincoln, Proclamation (May 10, 1861), ibid., vol. VII, p. 3217–18; Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States (July 2, 1861), ibid., vol. VII, p. 3220; Stahr, Seward, p. 221, 240, 286–87.

Lincoln claimed: Abraham Lincoln to Winfield Scott, April 25, 1861, reprinted in Andrew Delbanco, ed., The Portable Abraham Lincoln (New York: Penguin Books, 2009), pp. 237–40; Abraham Lincoln to Winfield Scott (April 25, 1861), in Richardson, ed., Papers of the Presidents, vol. VII, pp. 3215–3219.

Only days after the attack: Edward Bates, Opinion of the Attorney General, July 5, 1861, reprinted in House Documents, vol. 156 (U.S. Government Printing Office, 1861), pp. 101–12.

Decades before, Jefferson: Jefferson, “Seventh Annual Message to Congress” (October 27, 1807); Thomas Jefferson, Informal Memorandum, July 28, 1807, reprinted in Ford, ed., Works of Thomas Jefferson, vol. I, p. 415; Banks and Raven-Hansen, National Security Law, pp. 37–39.

“emulate General Jackson . . . no”: “The News in Washington; The Excitement at the Capital . . . The President’s Proclamation. The Unanimity of the Cabinet,” New York Times (April 15, 1861), available at http://www.nytimes.com/1861/04/15/news/washington-excitement-capital-dispatches-president-creditability-telegrams.html?smid=pl-share.

Even Lincoln’s decision: Thomas Speed, The Union Cause in Kentucky, 1860–1865 (New York: G. P. Putnam’s Sons, 1907), pp. 88, 94–95; McPherson, Tried by War, p. 23; Lincoln, “Special Session Message,” July 4, 1861; Ramsdell, “Lincoln and Fort Sumter,” pp. 287–88.

state was Kentucky: Harold D. Tallant, Evil Necessity: Slavery and Political Culture in Antebellum Kentucky (Lexington, KY: University Press of Kentucky, 2003), p. 218; “Judge Robertson on the Crisis,” Louisville Journal (June 7, 1861).

“whole game”: Abraham Lincoln to Orville Browning, September 22, 1861, reprinted in Basler, ed., Works of Abraham Lincoln, vol. IV, p. 531–33.

Lincoln could only: Horace Greeley, The American Conflict: A History of the Great Rebellion in the United States of America (Hartford, CT: O.D. Case & Company, 1864), p. 555; “Thirty-Seventh Congress”; McPherson, Tried by War, p. 23; “Judge Robertson on the Crisis.”

Those states: Ibid.; “Congressional Elections,” Vincennes Gazette (March 23, 1861); “Thirty-Seventh Congress”; Speed, Union Cause in Kentucky, pp. 94–95.

As Independence Day approached: “Congress and the Country,” New York Times (June 9, 1861), available at: http://www.nytimes.com/1861/06/09/news/congress-and-the-country.htm; “Notes of the Rebellion: Martial Law. Some Points Suggested for the Consideration of Chief Justice Tancy,” New York Times (June 8, 1861), available at: http://www.nytimes.com/1861/06/08/news/notes-rebellion-martial-law-some-points-suggested-for-consideration-chief.html.

eye firmly fixed: “Judge Robertson on the Crisis”; Abraham Lincoln to Orville Browning, September 22, 1861, reprinted in Basler, ed., Works of Abraham Lincoln, vol. IV, p. 531–33.

governor had set them: Speed, Union Cause in Kentucky, pp. 88, 94–95.

administration’s concerted efforts: Lowell Harrison, The Civil War in Kentucky (Lexington, KY: University Press of Kentucky, 2010), pp. 11–12; Lowell Harrison, Lincoln of Kentucky (Lexington, KY: University Press of Kentucky, 2000), pp. 143–45.

Meanwhile, Lincoln’s men: Douglas L. Wilson, Lincoln’s Sword: The Presidency and the Power of Words (New York: Alfred A. Knopf, 2006), pp. 71–104; Goodwin, Team of Rivals, p. 366.

message would account: Wilson, Lincoln’s Sword, pp. 71–104; Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, MD: Rowman & Littlefield, 2000), pp. 357–64.

final days before the session: Wilson, Lincoln’s Sword, pp. 101–02.

Among the chosen few: Ibid., p. 102; Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 475–76.

He had been appointed: Ibid., pp. 475–76; John V. Denson, A Century of War (Austria: Ludwig von Mises Institute, 2006), p. 83; Tony Wolk, Abraham Lincoln: A Novel Life (Portland, OR: Ooligan Press, 2004), p. 224; Donald, We Are Lincoln Men, pp. 113–20.

Browning was a calming: Ibid., pp. 114–120; Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 475–76; Denson, Century of War, p. 83; Ramsdell, “Lincoln and Fort Sumter,” pp. 286–88.

even called Browning’s family: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 530; Donald, We Are Lincoln Men, p. 120.

bond between the two men: Orville Hickman Browning, reprinted in Pease, Diary of Orville Hickman Browning, vol. I, pp. 453–56.

When Browning offered suggestions: Ibid., pp. 455–56; Donald, We Are Lincoln Men, pp. 113–20.

now, on the eve: Orville Hickman Browning, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 475–76; Wilson, Lincoln’s Sword, p. 102; Donald, We Are Lincoln Men, pp. 113–20.

Browning spent most of that day: Orville Hickman Browning, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 475–76; Denson, Century of War, p. 83; Ramsdell, “Lincoln and Fort Sumter,” pp. 286–88; p. 117; Donald, We Are Lincoln Men, pp. 113–17.

“most admirable history”: Orville Hickman Browning, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 475; Donald, We Are Lincoln Men, p. 114.

If a disaffected minority: Abraham Lincoln, Special Session Message (July 4, 1861), reprinted in Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

same argument: Orville Hickman Browning, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 462–67; Donald, We Are Lincoln Men, pp. 113–14.

Lincoln was also hoping: Wilson, Lincoln’s Sword, pp. 78–79, 103.

key section of the message: Abraham Lincoln, Special Session Message (July 4, 1861), Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

Lincoln presented himself: Abraham Lincoln, Special Session Message (July 4, 1861), Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

Here, too, Lincoln: Abraham Lincoln, Special Session Message (July 4, 1861), ibid., vol. VII–VIII, pp. 3221–32.

The Supreme Court: Prize Cases, 67 U.S. (2 Black) 635, 665–74 (1863); Orville Hickman Browning, 1861, reprinted in Pease, Diary of Orville Hickman Browning, vol. I, pp. 463–464.

“competency of Congress . . . shape and efficiency”: Abraham Lincoln, Special Session Message (July 4, 1861), Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32; Wilson, Lincoln’s Sword, Knopf, pp. 75–82, 95–101.

“all the laws but one to go unexecuted”: Abraham Lincoln, Special Session Message (July 4, 1861), reprinted in Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

Lincoln was never fully comfortable: Wilson, Lincoln’s Sword, pp. 82–86.

final message even promised: Abraham Lincoln, Special Session Message (July 4, 1861), reprinted in Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32.

“legal sanction”: Abraham Lincoln, Special Session Message (July 4, 1861), Richardson, Papers of the Presidents, vol. VII, p. 3227; John Bruce Robertson, “Lincoln and Congress” (Ph.D. diss., University of Wisconsin, 1967), p. 256.

And so, as planned: Cong. Globe, 37th Cong., 1st Sess. (1861), pp. 11, 13; George Clarke Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress (Chicago: University of Chicago, 1907), p. 223.

Seward had warned: Stahr, Seward, pp. 280–81.

first few weeks: Cong. Globe, 37th Cong., 1st Sess. (1861), pp. 11–400; Robertson, “Lincoln and Congress,” pp. 243–57; Goodwin, Team of Rivals, p. 370; Goodheart, 1861, pp. 364–66.

serious efforts: Senator Trumbull, “Army Appropriations Bill” (July 15, 1861), 37th Congress, 1st Session, p. 120; Kenneth L. Deutsch and Joseph R. Fornieri, Lincoln’s American Dream: Clashing Political Perspectives (Potomac Books, Inc., 2005), p. 280.

Others in Congress: Cong. Globe, (1861) 37th Congress, 1st Session, pp. 24–25.

The delays plagued: Robertson, “Lincoln and Congress,” pp. 17–39; Cong. Globe, 37th Cong., 1st Sess. (1861), pp. 24–26, 115, 224, 227.

Everything, it seemed: Robertson, “Lincoln and Congress,” pp. 17–39.

On July 29: “An Act to Provide for the Suppression of Rebellion Against and Resistance to the Laws of the United States” (July 29, 1861), Cong. Globe, 37th Cong., 1st Sess., p. 308.

On July 31: “An Act Authorizing the Secretary of War to Reimburse Volunteers for Expenses Incurred in Employing Regimental and Other Bands, and for Other Purposes” (July 31, 1861), Cong. Globe, 37th Cong., 1st Sess., p. 336.

“approve[,] and in all respects”: “An Act to Increase the Pay of the Privates in the Regular Army and in the Volunteers in the Service of the United States, and for other purposes” (August 6, 1861), Cong. Globe, 37th Cong., 1st Sess., pp. 450–59.

more than a month: Cong. Globe, 37th Cong., 1st Sess. (1861), p. 1.

In fact, Senator Henry Wilson: “S.1,” Cong. Globe, 37th Cong., 1st Sess. (1861), p. 2.

Even die-hard Republicans: Cong. Globe, 37th Cong, 1st Sess. (1861), pp. 452–52, 455–67; Robertson, “Lincoln and Congress,” pp. 36–39.

bill to ratify: Cong. Globe, 37th Cong., 1st Sess. (1861), pp. 167, 275, 336–38, 342, 346, 381.

Thaddeus Stevens: Cong. Globe, 37th Cong., 1st Sess. (1861), p. 444.

While still in Quincy: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 621, 678–79; Robertson, “Lincoln and Congress,” p. 62.

urging passage of Wilson’s ratification bill: Cong. Globe, 37th Cong., 1st Sess. (1861), pp. 2, 16, 21, 40–46, 144, 235, 391–93, 451–53; Robertson, “Lincoln and Congress,” pp. 40–41.

argument made all the more compelling: Goodwin, Team of Rivals, p. 371; McPherson, Tried by War, pp. 39–40, 51.

Making matters worse: Robertson, “Lincoln and Congress,” p. 37.

Lincoln had come through: Robertson, “Lincoln and Congress,” pp. 55–58; Cong. Globe, 37th Cong., 2d Sess. (1861), pp. 1–10.

watched as the man: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 479.

“Our Legislation has been hasty . . . when I came here”: Ibid., p. 493.

“radicals” in Congress: Introduction, Records of the Probate Court in Quincy, Illinois, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. 1, p. 586.

“irrepressible conflict”: Horace White, Life of Lyman Trumbull (Boston: Houghton Mifflin, 1913), p. 106.

Lincoln had been careful: Abraham Lincoln, First Inaugural Address (March 4, 1861), available at: http://www.bartleby.com/124/pres31.html; Abraham Lincoln, Special Session Message (July 4, 1861), Richardson, ed., Papers of the Presidents, vol. VII–VIII, pp. 3221–32; Robertson, “Lincoln and Congress,” pp. 17–18, 89.

bills to make inroads on the evil institution: Robertson, “Lincoln and Congress,” pp. 68–69.

“March at once . . . done with them”: Orville H. Browning to Abraham Lincoln (April 30, 1861), Library of Congress Manuscript Division.

In late May, three slaves: James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (New York: W. W. Norton & Company, 2012), pp. 95–96; Goodwin, Team of Rivals, pp. 368–69.

head of the Army of the Potomac: Oakes, Freedom National, pp. 104, 113, 211–213.

“contraband”: Ibid., p. 104; Goodwin, Team of Rivals, pp. 368–369.

“come within your lines”: Simon Cameron to Benjamin Butler, reprinted in Burrus Carnahan, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War (University Press of Kentucky, 2007), p. 85; Oakes, Freedom National, pp. 91–94.

Congress stepped in: “Act of August 6, 1861” (August 6, 1861), 12 Stat. 319; Cong. Globe, 37th Cong., 2d sess. (1861), pp. 1, 18, 1077, 1136, 2917–21; White, Life of Lyman Trumbull, p. 173.

new law just endorsed: Robertson, “Lincoln and Congress,” pp. 63–65.

Butler’s background, as a Democrat: Goodwin, Team of Rivals, pp. 368–71.

not all of Lincoln’s officers: White, Life of Lyman Trumbull, pp. 169–72; Goodwin, Team of Rivals, pp. 390–92.

already declared martial law: Goodwin, Team of Rivals, pp. 390–92.

“all persons who shall . . . hereby declared freemen”: John Frēmont, “Proclamation of Gen. Fremont,” New York Times (August 31, 1861), available at: http://www.nytimes.com/1861/09/01/news/important-from-missouri-proclamation-of-gen-fremont.html.

All the caveats: Goodwin, Team of Rivals, pp. 390–391; White, Life of Lyman Trumbull, p. 173.

So, too, was any acknowledgment: Cong. Globe, 37th Cong., 2d Sess. (1861), pp. 1, 18, 1077; Oakes, Freedom National, pp. 163–65. “Act of August 6, 1861” (August 6, 1861), 12 Stat. 319.

president was convinced the proclamation: Robertson, “Lincoln and Congress,” pp. 64–65, 76, 99; Goodwin, Team of Rivals, pp. 390–91.

Put off by a midnight: Thomas C. Mackey, Documentary History of the American Civil War Era (Knoxville: University of Tennessee Press, 2013), vol. 2, p. 103; Robertson, “Lincoln and Congress,” pp. 64–65, 76, 99; Goodwin, Team of Rivals, pp. 390–91.

“cheerfully . . . not to transcend”: Abraham Lincoln, “To John C. Fremont” (September 11, 1861), reprinted in The Collected Works of Abraham Lincoln (Wildside Press, 2008), vol. IV, pp. 517–18.

president’s rebuke: Oakes, Freedom National, pp. 163–65; Robertson, “Lincoln and Congress,” pp. 64–65, 76, 99; Goodwin, Team of Rivals, pp. 390–91.

moderate by nature: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 466–67.

Eager for Frémont to succeed: Orville H. Browning to Abraham Lincoln (September 17, 1861), reprinted in Harlan Hoyt Horner, “Lincoln Rebukes a Senator,” Journal of the Illinois State Historical Society, vol. 44 (1951), pp. 114–115;

“Frémont’s proclamation”: Donald, We Are Lincoln Men, p. 126.

Then, six days later: Orville H. Browning to Abraham Lincoln (September 24, 1861), reprinted in Horner, “Lincoln Rebukes a Senator,” p. 115.

“It is true . . . legal provisions”: Orville H. Browning to Abraham Lincoln (September 17, 1861), reprinted in Horner, “Lincoln Rebukes a Senator,” vol. 44 (1951), pp. 114–15.

First Confiscation Act: Oakes, Freedom National, pp. 163–65; Horner, “Lincoln Rebukes a Senator,” pp. 114–15; Robertson, “Lincoln and Congress,” pp. 63–65; “Act of August 6, 1861” (August 6, 1861), 12 Stat. 319.

“astonished”: Abraham Lincoln to Orville H. Browning (September 22, 1861), reprinted in Horner, “Lincoln Rebukes a Senator,” pp. 116–18.

Browning had recently but unsuccessfully lobbied: Ibid., p. 110; David Chambers Mearns, The Lincoln Papers (New York: Doubleday, 1948), pp. 531–33.

“purely political . . . of property by proclamation”: Lincoln to Orville H. Browning (September 22, 1861), reprinted in Horner, “Lincoln Rebukes a Senator,” pp. 116–18.

He followed Lincoln’s reply: Orville H. Browning to Abraham Lincoln (September 30, 1861), available at the Illinois State Historical Library; Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 502; Horner, “Lincoln Rebukes a Senator,” pp. 118–19.

new legislative session convened: Goodwin, Team of Rivals, pp. 403–08; Stahr, Seward, pp. 312–23; McPherson, Tried by War, pp. 85–87.

“greatest purpose seems”: Ward Hill Lamon, Recollections of Abraham Lincoln (Lincoln: University of Nebraska Press, 1994), p. 183.

confided at one point to Browning: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 523.

Lincoln was wary: Goodwin, Team of Rivals, pp. 390–91; Oakes, Freedom National, pp. 163–65.

Senator Lyman Trumbull: Cong. Globe, 37th Cong., 2d Sess. (1861), pp. 501–02, 516–17, 2966–70; David P. Currie, “The Civil War Congress,” University of Chicago Law Review, vol. 73 (2006), p. 1185; White, Life of Lyman Trumbull, p. 106; Oakes, Freedom National, pp. 238, 321–23, 324.

Browning took center stage: Cong. Globe, 37th Cong., 2d Sess. (1861), pp. 502, 2921–28.

“insure the speedy termination . . . the seizure”: “Act of July 17, 1862” (August 6, 1861), 12 Stat. 589; “Act of July 17, 1862” (August 6, 1861), 12 Stat. 591;

sweeping provision applied: Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 1861–1862 (Baton Rouge: Louisiana State University Press, 2005), pp. 123–25.

“There was no disagreement”: Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 512.

Browning had grown fearful: Horner, “Lincoln Rebukes a Senator,” p. 119; Baxter, “Lincoln’s Friend and Critic,” pp. 448–49; Cong. Globe, 37th Cong., 2d Sess. (1862), p. 2923.

Browning drew on the logic: Orville H. Browning to Abraham Lincoln (September 17, 1861), reprinted in Horner, “Lincoln Rebukes a Senator,” pp. 114–15.

The Constitution, Browning believed: Horner, “Lincoln Rebukes a Senator,” pp. 113–19; Baxter, “Lincoln’s Friend and Critic,” pp. 18–19.

With the legislative debate: Cong. Globe, 37th Cong., 2d Sess. (1862), pp. 2921–28.

There was some sympathy: Cong. Globe, 37th Cong. 2d Sess. (1862), pp. 501–02, 516–17, 2966–70.

Browning’s allies were few: Cong. Globe, 37th Cong., 2d Sess. (1862), pp. 2966–70; Robertson, “Lincoln and Congress,” pp. 49, 83–84.

“Congress may make”: Cong. Globe, 37th Cong., 2d Sess. (1862), p. 2966.

“In the Federal Convention”: Cong. Globe, 37th Cong., 2d Sess. (1862), p. 2968.

“direct the movements”: Cong. Globe, 37th Cong., 2d Sess. (1862), pp. 2966, 2970.

“Should the President . . . case is the Constitution”: Cong. Globe, 37th Cong., 2d Sess. (1862), p. 2969.

“meet[ing] the question . . . shoot your prisoners”: Cong. Globe, 37th Cong., 2d Sess. (1862), p. 2970.

“buzzing . . . harassments”: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 542–43.

“His general views . . . whether they were to control him”: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, p. 558; Stahr, Seward, pp. 340–41.

Second Confiscation Act was not: Stahr, Seward, pp. 341–42; Goodwin, Team of Rivals, pp. 460–61.

The very morning: Gideon Welles, Diary of Gideon Welles: Secretary of the Navy Under Lincoln and Johnson (New York: Houghton Mifflin, 1911), vol. I, p. 70.

“a military necessity”: Welles, Diary, vol. I, p. 70.

Lincoln issued the preliminary emancipation proclamation: Abraham Lincoln, “Preliminary Emancipation Proclamation” (September 22, 1862), National Archives and Records Administration, available at: http://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_proclamation.html#.; Stahr, Seward, pp. 346–47; Oakes, Freedom National, p. 251.

proclamation’s first references to abolition: Abraham Lincoln, “Preliminary Emancipation Proclamation” (September 22, 1862), National Archives and Records Administration, available at: http://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipation_proclamation.html#; Abraham Lincoln, “The Emancipation Proclamation” (January 1, 1863), National Archives and Records Administration, available at: www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html.

at an earlier moment: Abraham Lincoln, “To John C. Fremont” (September 11, 1861), reprinted in Collected Works of Abraham Lincoln, vol. IV, pp. 517–18.

He should have, in Browning’s view: Orville Hickman Browning, 1861, reprinted in Pease, ed., Diary of Orville Hickman Browning, vol. I, pp. 562, 582, 625; Robertson, “Lincoln and Congress,” p. 250.

“Act of Justice”: Abraham Lincoln, “A Proclamation,” (January 1, 1863), 12 Stat. pp. 1268–1269.

Chapter 9

 The War Ends

epigraph: Mr. Fessenden, Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1851.

years out of the limelight: Chester G. Hearn, The Impeachment of Andrew Johnson (Jefferson, NC: McFarland, 2000), p. 112; Ex Parte Milligan, 71 U.S. 2 (1866).

Supreme Court was assembled: “Old Senate Chamber,” Architect of the Capitol, available at: http://www.aoc.gov/capitol-buildings/old-senate-chamber.

Reflecting this shift: Hearn, Impeachment of Andrew Johnson, p. 112.

Much of what Black said: Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago: The University of Chicago Press, 1960), p. 313; Hearn, Impeachment of Andrew Johnson, p. 112; Majorie Fribourg, The Supreme Court in American History (Avon Books, 1969), p. 98.

Black had made the legal case: Frank Burr, “Judge Black’s Answer,” Philadelphia Weekly Press (September 13, 1883); Jeremiah Black, “Mr. Black to Mr. Wilson,” Galaxy, vol. 11, Issue 2 (February 1871), pp. 264–66.

Thus, Johnson: McKitrick, Johnson and Reconstruction, pp. 3–6, 46–47; Hans L. Trefousse, Andrew Johnson: A Biography (New York: W. W. Norton & Company, 1991), p. 255.

legislative plan depended heavily: David O. Stewart, Impeached: The Trial of Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon & Schuster, 2009), pp. 173–74.

They would stitch the nation: McKitrick, Johnson and Reconstruction, pp. 4–5.

Johnson lacked Lincoln’s unique: Ibid., pp. 135–37.

Johnson had made a fool: Stewart, Impeached, pp. 8–10; McKitrick, Johnson and Reconstruction, pp. 135–37.

Johnson carried himself: Trefousse, Andrew Johnson, pp. 193, 197, 207.

He had the good sense: McKitrick, Johnson and Reconstruction, pp. 96–98; Stewart, Impeached, p. 17.

With his popularity soaring: Stewart, Impeached, pp. 5, 8; Trefousse, Andrew Johnson, pp. 207, 210–11.

Johnson’s tendency toward rigidity: Stewart, Impeached, pp. 15–18; Annette Gordon-Reed, Andrew Johnson: American President Series, The 17th President, 1865–1869 (New York: Macmillan, 2011), pp. 5, 11–13, 44, 124–129, 144.

real problem for Johnson: Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: HarperCollins, 2002), p. xvii; Gordon-Reed, Andrew Johnson, pp. 14, 96–104, 105–121, 122–140.

“true fold”: Trefousse, Andrew Johnson, p. 217; McKitrick, Johnson and Reconstruction, pp. 71–72.

Black was contesting: Curtis A. Bradley, “The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization,” in Presidential Power Stories (New York: Foundation Press, 2009), pp. 109–11; Samuel Klaus, ed., The Milligan Case (New York: A.A. Knopf, 1929), pp. 67–73.

Depending on the outcome of the case: Klaus, Milligan Case, p. 121; Bradley, “Story of Ex Parte Milligan,” pp. 109–11.

Black was making the point: Klaus, Milligan Case, pp. 121–25.

By all accounts: William Norwood Brigance, Jeremiah Sullivan Black: A Defender of the Constitution and the Ten Commandments (Philadelphia: University of Pennsylvania Press, 1934), p. vii; Mary Black Clayton, Reminiscences of Jeremiah Sullivan Black (Christian Publishing Company, 1887), pp. 170–71.

“most magnificent”: Orville Hickman Browning, reprinted in Theodore Calvin Pease, ed., The Diary of Orville Hickman Browning (Springfield, IL: James G. Randall ed., 1925–1933), vol. II, p. 65.

“people rose in their wrath . . . ’em hell”: Clayton, Reminiscences of Jeremiah Sullivan Black, p. 134.

president was by then making it well known: Stewart, Impeached, pp. 16–20; Gordon-Reed, Andrew Johnson, pp. 14, 96–104, 105–121, 122–140.

should have been no surprise: Andrew Johnson, “A Proclamation by the President of the United States” (August 20, 1866) at http://www.presidency.ucsb.edu/ws/?pid=71992.

“there no longer existed . . . State or Federal”: Ibid.

new birth of freedom: Abraham Lincoln, The Gettysburg Address (November 19, 1863), available at: www.abrahamlincolnonline.org/lincoln/speeches/Gettysburg.htm.

Court announced its judgment: Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

ruling drew howls: Bradley, “Story of Ex Parte Milligan,” pp. 116–21; Mark Tushnet, ed., The Constitution in Wartime: Beyond Alarmism and Complacency (Durham, NC: Duke University Press Books, 2005), pp. 169–73.

Court’s ruling alarmed: George Stanton Denison, ed., Diary and Correspondence of Salmon P. Chase (U.S. Government Printing Office, 1903), pp. 517–20; John Niven, ed., The Salmon P. Chase Papers: Correspondence, 1865–73 (Kent, OH: Kent State University Press, 1998), p. 298; John Niven, Salmon P. Chase: A Biography (New York: Oxford University Press, 1995), pp. 387, 403–05; Frederick J. Blue, Salmon P. Chase: A Life in Politics (Kent, OH: Kent State University Press, 1987), p. 248.

majority had held: Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 132–42 (1866); David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review, vol. 121 (2008), pp. 1017–18 n.246.

Chase served as an informal advisor: Niven, Salmon P. Chase, p. 382.

“conduct of campaigns”: Chief Justice Salmon P. Chase, concurrence in Ex Parte Milligan, 71 U.S. 2, 139 (1866); Niven, Chase Papers, pp. 66–69.

“We are fast approaching”: H. W. Brands, The Man Who Saved the Union: Ulysses Grant in War and Peace (New York: Random House, 2013), p. 398.

Grant was too circumspect: Edward Smith, Grant (New York: Simon & Schuster, 2001), pp. 433–38; Brands, Man Who Saved the Union, p. 398.

first sign of Grant’s break: Trefousse, Andrew Johnson, pp. 270–71; Smith, Grant, p. 434.

Grant’s refusal: Brands, Man Who Saved the Union, pp. 407–08; Stewart, Impeached, pp. 71–72.

Stanton thought that with their help: George Sewall Boutwell, Reminiscences of Sixty Years in Public Affairs (MA: McClure, Phillips & Company, 1902), vol. II, pp. 107–108; Trefousse, Andrew Johnson, p. 291.

“I received a note from Mr. Stanton”: Boutwell, Reminiscences, vol. II, pp. 107–108.

“had been more disturbed . . . through the aid of the Executive”: Ibid., vol. II, p. 108.

“thought it necessary . . . dictation”: Ibid., vol. II, p. 108.

“fixed at Washington . . . had been so issued”: Ibid., vol. II, p. 108; Niven, Salmon P. Chase, pp. 411–12.

extraordinary bill: Edgar J. McManus and Tara Helfman, Liberty and Union: A Constitutional History of the United States, Concise Editions (London: Routledge, 2014), p. 231; Act of Mar. 2, 1867, ch. 170 §2, 14 Stat-485, 486–87.

Congress took up the measure: Niven, Salmon P. Chase, pp. 411–12.

“Commander in Chief . . . Army shall do, or shall not do”: Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1851.

“I understand the honorable . . . command was concerned”: Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1852.

“Suppose the President of the United States”: Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1852.

“absolute power . . . Army of the United States”: Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1852.

“it has been the practice”: Cong. Globe, 39th Cong., 2d Sess. (1867), p. 1854.

As the appropriations bill: Trefousse, Andrew Johnson, p. 281; Smith, Grant, pp. 433–34; John Y. Simon, ed., The Papers of Ulysses S. Grant, volume 17: January 1–September 30, 1867 (Carbondale, IL: Southern Illinois University Press, 1967), pp. 256–64.

With Jeremiah Black’s help: Trefousse, Andrew Johnson, pp. 281–82; Edward McPherson, The Political History of the United States During the Period of Reconstruction, April 15, 1865–July 15, 1870 (Washington, D.C., 1870), pp. 178–81, 192–94; Jeremiah S. Black to Andrew Johnson, March 23, 1867, in Paul H. Bergeron, ed., The Papers of Andrew Johnson, vol. 12, February–August 1867 (Knoxville: The University of Tennessee Press, 1995), pp. 175–76; Andrew Johnson, Veto Message (July 19, 1867), available at, www.presidency.ucsb.edu/ws/?pid=72121.

“fitting end to all our controversy”: Brands, Man Who Saved the Union, p. 401.

“Do not show what I said . . . in a public matter”: Ibid.

much as Andrew Johnson hated: McManus and Helfman, Liberty and Union, p. 231; Brands, Man Who Saved the Union, pp. 400–01, 403; Howard K. Beale, ed., Diary of Gideon Welles: Secretary of the Navy Under Lincoln and Johnson (New York: W. W. Norton & Company, 1960), vol. III, pp. 48–49.

president did his best to undermine: Stewart, Impeached, pp. 83–86; Brands, Man Who Saved the Union, pp. 400–01, 403.

Consistent with that resistance: Stewart, Impeached, p. 93; Brands, Man Who Saved the Union, p. 401.

Johnson thought Grant: William S. McFeely, Grant: A Biography (New York: W. W. Norton & Company, 2002), pp. 247–48.

Secretary of War Stanton: Beale, ed., Diary of Gideon Welles, vol. III, pp. 45–46; Stewart, Impeached, pp. 93–94.

latter act made it a crime: Stewart, Impeached, pp. 93–96; Beale, ed., Diary of Gideon Welles, vol. III, pp. 131–32, 134; Tenure of Office Act, Ch. 154, §§1, 2, 9, 14, 430, 432 (1867);

Against the advice of Grant: McKitrick, Johnson and Reconstruction, pp. 490, 494–495.

Similar rumors of such a takeover: Peter Carlson, “130 Years Ago, Parallels Up to a Boiling Point,” Washington Post (December 13, 1998); McKitrick, Johnson and Reconstruction, pp. 289–91.

immediate trigger: Stewart, Impeached, pp. 114–15.

scuttlebutt was that Johnson: L. David Norris, James C. Milligan, and Odie B. Faulk, William H. Emory: Soldier-Scientist (Tucson, AZ: University of Arizona Press, 1998), pp. 254–56.

In response to these reports: Stewart, Impeached, pp. 142–43, 148–49; Brands, Man Who Saved the Union, p. 401; Norris et al., William H. Emory, p. 255.

“in disregard of the Constitution . . . commission of said Emory”: The American Annual Cyclopedia and Register of Important Events (D. Appleton, 1869), vol. 8, p. 354.

“very calmly . . . they had put him”: “Notes of Colonel W.G. Moore, Private Secretary to President Johnson, February 24, 1868” in American Historical Review, volume XIX (London: MacMillian and Co, 1914), p. 122.

Senate gathered: Stewart, Impeached, p. 169.

instead, in offering: Edmund G. Ross, History of the Impeachment of Andrew Johnson (New York: Burt Franklin, 1868), pp. 82–83, 126–28, 132.

According to Emory: Ross, Impeachment of Andrew Johnson, pp. 82–83, 126–28, 132; Cong. Globe, 40th Cong., 2d Sess., Supp. (1868), pp. 78–80; Norris et al., William H. Emory, p. 256.

“Am I to understand”: Ross, History of the Impeachment of Andrew Johnson, p. 127; Cong. Globe, 40th Cong., 2d Sess., Supp. (1868), pp. 78–80.

“object of the law”: Emory, Autobiography; Ross, History of the Impeachment, p. 127.

Johnson was ultimately acquitted: McKitrick, Johnson and Reconstruction, pp. 4–5, 506–07.

High on the list: Stewart, Impeached, pp. 197–98.

rulings reflected Chase’s concern: Chief Justice Salmon P. Chase, concurrence in Ex Parte Milligan, 71 U.S. 2, 139 (1866).

decades after the trial: Michael Les Benedict, The Impeachment and Trial of Andrew Johnson (New York: W. W. Norton & Company, 1973), pp. 9–25, 26–60; Stewart, Impeached, pp. 1–4, 177–79.

“conduct of Campaigns”: Chief Justice Salmon P. Chase, concurrence in Ex Parte Milligan, 71 U.S. 2 (1866), p. 139;

for the first time: John Norton Pomeroy, An Introduction to the Constitutional Law of the United States § 703 (1868), pp. 470–73; David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb: A Constitutional History,” Harvard and Life Review 121, pp. 941, 1018–21 (2008).

Grant, upon taking office: Ulysses S. Grant, “First Inaugural Address” (March 4, 1869); Brands, Man Who Saved the Union, p. 428.

Congressional government: Woodrow Wilson, Congressional Government: A Study in American Politics (Transaction Publishers, 1956); Arthur M. Schlesinger, The Imperial Presidency (Houghton Mifflin Harcourt, 2004), pp. 75–76.

Chapter 10

 Imperialism

epigraph: Elihu Root in Phillip C. Jessup, Elihu Root, vol. I (New York: Dodd, Mead + Company, 1938), pp. 342–43.

“genius of our institutions . . . entangling alliances with none”: Grover Cleveland, “Inaugural Address” (March 4, 1885).

“large policy . . . imperialism”: Christopher McKnight Nichols, Promise and Peril: America at the Dawn of the Global Age (Cambridge, MA: Harvard University Press, 2011), pp. 36–41, 84–86.

“Theodore is one of the most lovable”: John A. Garraty, Henry Cabot Lodge: A Biography (New York: Knopf, 1953), pp. 86–87.

“telepathy”: Ibid., p. 222.

Darwinist theories of social progress: Nichols, Promise and Peril, pp. 50–57; 74–81; Evan Thomas, The War Lovers: Roosevelt, Lodge, Hearst, and the Rush to Empire, 1898 (New York: Little, Brown and Company, 2010), pp. 62–73.

“fighting-fleet”: Theodore Roosevelt, “The Influence of Seapower Upon History,” Atlantic Monthly (October 1890).

“we want no wars of conquest”: William McKinley, “Inaugural Address” (March 4, 1897).

“great democracy is moving onward”: Thomas, War Lovers, p. 143.

president eventually gave in: Ibid., p. 150.

tireless in bending the naval bureaucracy: Ibid., pp. 169–79.

American warship Maine: Gregg Jones, Honor in the Dust: Theodore Roosevelt, War in the Philippines, and the Rise and Fall of America’s Imperial Dream (New York: New American Library, 2012), pp. 5–9; Thomas, War Lovers, pp. 205–08.

cause of the explosion: Ibid., pp. 210–11.

Roosevelt and others effectively portrayed: Jones, Honor in the Dust, pp. 9–11.

that moment on: “H.R. 10086: Declaration of War With Spain, 1898” (April 25, 1898).

“in confidence . . . policy that we both desire”: Henry Cabot Lodge, “Letter from Lodge to Roosevelt, May 24, 1898,” Massachusetts Historical Society, Lodge Roosevelt Correspondence: 1896–1898.

“Camp near San Antonio . . . something marvelous”: Theodore Roosevelt, “Letter from Roosevelt to Lodge, May 25, 1898,” Massachusetts Historical Society, Lodge Roosevelt Correspondence: 1896–1898.

“earnestly hope . . . taken away from Spain”: Ibid.

treaty that the United States signed: Treaty of Peace between the United States of America and the Kingdom of Spain, 30 Stat. 1754 (December 10, 1898).

clearest sign of that reckoning: Nichols, Promise and Peril, pp. 86–89.

Roosevelt’s supporters were not overly worried: Jones, Honor in the Dust, p. 168.

as the insurrection persisted: Ibid., pp. 271–75, 279–80.

undertake a more focused inquiry: Ibid., pp. 270–75.

tensions between the commander in chief: Ibid., pp. 271, 274; Edmund Morris, Theodore Rex (New York: Random House, 2001), pp. 97–99.

He had miscalculated: Ibid., pp. 127–29.

he would resign: Jones, Honor in the Dust, pp. 296–99.

“Act to make the President”: “An Act to Make the President of the US a Military Dictator,” New York Evening Post (August 23, 1902).

secret administration report: Morris, Theodore Rex, pp. 97–99.

Lodge felt that he had no choice: Jones, Honor in the Dust, pp. 300–01.

Major Cornelius Gardener: Jones, Honor in the Dust, pp. 277–78.

Taft had appeared: Ibid., pp. 271–74.

“by reason of the conduct of the troops . . . making permanent enemies”: “Friction in Philippines: Gov. Gardener Charges Army with Using Harsh Methods,” New York Times (April 11, 1902).

Lodge gamely tried to: Jones, Honor in the Dust, p. 300; Henry Cabot Lodge, Affairs in the Philippine Islands: Hearing Before the Committee on the Philippines of the United States Senate, Doc. 331, 57th Congress, 1st Session (1902), p. 850.

“to kill and burn . . . Ten years”: Jones, Honor in the Dust, pp. 292–93.

“simply held down . . . allowed to come to”: Affairs in the Philippine Islands, p. 1767.

particularly bad day for the administration: Jones, Honor in the Dust, pp. 305–07.

“Great as the provocation . . . part of the American Army”: Elihu Root in Jessup, Elihu Root, vol. I, pp. 342–43.

“practical statesmanship . . . centuries cannot eradicate”: George F. Hoar, “Subjugation of the Philippines,” Speaker: A Quarterly Magazine, vol. III (Pearson Brothers, 1908), pp. 182–86.

Roosevelt decided to speak out: Theodore Roosevelt, “On the Occasion of the Unveiling of the Soldiers’ and Sailors’ Monument at Arlington, Under the Auspices of the National Society of the Colonial Dames of America,” in Presidential Address and State Papers of Theodore Roosevelt, vol. 1 (New York: P.F. Collier & Son, 1910), pp. 53–67.

final report of the Lodge inquiry: Affairs in the Philippine Islands.

insurrection was in its last throes: Theodore Roosevelt, “Proclamation 483: Granting Pardon and Amnesty to Participants in Insurrection in the Philippines” (July 4, 1902).

Hoar turned out to be: Jones, Honor in the Dust, p. 324.

nod to the strength: Jones, Honor in the Dust, p. 324.

midst of his second term: Mike McKinley, “The Cruise of the Great White Fleet,” Naval History and Heritage Command, available at: history.navy.mil/research/library/online-reading-room/title-list-alphabetically/c/cruise-great-white-fleet-mckinley.html.

days in office winding down: Theodore Roosevelt, “Executive Order No. 969: Defining the Duties of the United States Marine Corps” (1908).

amendment was quickly put forward: “Act of March 3, 1909,” 35 Stat. 753, pp. 773–74.

reprising the role that he had played: Lodge, Cong. Record, vol. 43, 60th Cong., 2nd Sess. (1909), p. 2447.

“Suppose upon the occasion . . . bad man happens to be President”: Bacon, Cong. Record, vol. 43, 60th Cong., 2nd Sess. (1909), p. 2452.

“fathers who framed the Constitution”: Borah, Cong. Record, vol. 43, 60th Cong., 2nd Sess. (1909), p. 2452.

extended constitutional debate: David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review, vol. 121 (2008), p. 1037.

“Inasmuch as Congress has power . . . employed in some designated way”: “Appropriations-Marine Corps-Service on Battle ships, Etc.,” 27 Op. Att’y Gen, (1909), pp. 259–60.

“emergency making such action”: “Removal of Floating Dry Dock from Algiers, La., to Guantanamo, Cuba,” 28 Op. Att’y Gen. (1910), pp. 511, 522.

“who is to determine the movements . . . votes in the market-place”: William Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), p. 129.

“we come to the power of the President”: William Taft, “Boundaries Between the Executive, the Legislative and the Judicial Branches of the Government,” Yale Law Journal, vol. 25 (1916), p. 610.

Chapter 11

 The Great War

epigraph: Woodrow Wilson, Address to a Joint Session of Congress, February 26, 1917, in Arthur S. Link, ed., The Papers of Woodrow Wilson (Princeton, NJ: Princeton University Press, 1983), vol. 41, p. 285.

“He Kept Us”: John Milton Cooper, Jr., Woodrow Wilson (New York: Random House, 2011), pp. 341–42.

constant attacks: A. Scott Berg, Wilson (London: Simon & Schuster UK, 2013), pp. 411–13.

a resigned Wilson: Berg, Wilson, pp. 414–17.

“future security”: Cooper, Woodrow Wilson, p. 369.

make good on that commitment: Link, ed., Papers of Woodrow Wilson, vol. 45, pp. 534–39.

“peace without victory”: Cooper, Woodrow Wilson, pp. 370–71.

Prominent observers: Berg, Wilson, pp. 422–26.

even more worrisome: Cooper, Woodrow Wilson, p. 372.

“every available weapon”: Note from Johann-Heinrich von Bernstorff to Robert Lansing, in Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 74–76.

“congressional government”: Woodrow Wilson, Congressional Government (New York: Houghton Mifflin, 1900), p. 284.

his academic writings: Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), pp. 58–59.

keying off of Lincoln’s: Ibid., pp. 78–79.

Throughout his first term: Berg, Wilson, pp. 11–13; 433.

German U-boat campaign: Cooper, Woodrow Wilson, p. 375.

At a cabinet meeting: David F. Houston, Eight Years with Wilson’s Cabinet: 1913–1920 (New York: Doubleday, 1926), vol. I, p. 234.

Wilson had been pondering a policy: Correspondence from Robert Lansing to Wilson, February 21, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, p. 263.

Wilson worried: Houston, Eight Years, vol. I, p. 234.

“one of the most animated”: Letter from Franklin Knight Lane to George W. Lane, February 25, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 282–83.

“government would continue”: Houston, Eight Years, pp. 235–37.

next day, Wilson drafted: Memorandum to William Gibbs McAdoo, with Enclosure, February 24, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 279–80.

“No doubt I already possess . . . in their spirit”: Address to a Joint Session of Congress, February 26, 1917, in ibid., vol. 41, pp. 283–87.

Front-page reports the next day: Cooper, Woodrow Wilson, pp. 377–78.

Senate rules of that era: Arthur S. Link, Wilson: Campaigns for Progressivism and Peace, 1916–1917 (Princeton, NJ: Princeton University Press, 1965), pp. 360–62; Seward W. Livermore, Politics Is Adjourned: Woodrow Wilson and the War Congress 1916–18 (Middletown, CT: Wesleyan University Press, 1966), pp. 216–17.

waiting for Chief Justice Edward White: Link, Campaigns for Progressivism and Peace, pp. 360–61.

After taking the oath: Cooper, Woodrow Wilson, p. 379; Link, Campaigns for Progressivism and Peace, p. 362.

“little group of willful men . . . unprecedented unanimity and spirit”: in Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 318–20.

New York Times reported: “Sharp Words by Wilson,” New York Times (March 5, 1917).

“even more grave”: Ibid.

“discovery that . . . may nullify”: “Supplementary Statement from the White House,” New York Times (March 5, 1917); Link, ed., Papers of Woodrow Wilson, vol. 41, p. 320.

“expressly provide[d] . . . at amity”: Cong. Record, 64th Cong., 2d Sess. (1917), p. 4749.

departing for the ceremonial inaugural events: “President Requests Reply in 24 Hours on Right to Arm Vessels,” New York Times (March 6, 1917).

news of the obstacle out: “Says Convoys are Legal; Princeton Professor Thinks Wilson Obscures the Issue,” New York Times (March 6, 1917).

“only really effective method”: “Wickersham Holds Wilson has Power,” New York Times (March 5, 1917).

got it the next morning: “Admits He Has Full Power,” New York Times (March 10, 1917); see also “Gregory Asked for Opinion,” New York Times (March 6, 1917).

“more or less technical”: Memorandum from Robert Lansing to Wilson, March 6, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 341–42.

announced the action: Link, ed., Papers of Woodrow Wilson, vol. 41, pp. 377–79; “Admits He Has Full Power.”

Wilson’s strategy: “Admits He Has Full Power.”

submarines began sinking: Cooper, Woodrow Wilson, p. 381.

“neither right nor constitutionally . . . to be in the balance”: “An Address to a Joint Session of Congress,” April 2, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, p. 519–27.

“I shall take the liberty . . . will most directly fall”: Ibid., p. 522.

Before Congress declared war: Cooper, Woodrow Wilson, pp. 390–92; Cong. Record, 65th Cong., 1st Sess. (1917), pp. 3258–65.

215 “the argument . . . nor dot an ‘i’ ”: Cong. Record, 65th Cong., 1st Sess. (1917), p. 1376.

Wilson had effectively won: Livermore, Politics Is Adjourned, pp. 16 18.

House and Senate prepared: “Roosevelt Wins Army Bill Point,” New York Times (May 16, 1917); Livermore, Politics Is Adjourned, p. 27.

Everyone knew this volunteer program: “Senate Passes Draft Bill 65–8; Wilson May Proclaim it Tomorrow; New Army to Mobilize in September,” New York Times (May 18, 1917).

Roosevelt had even informed: Letter from Roosevelt to Baker, February 2, 1917, in Appendix G of Theodore Roosevelt, The Foes of Our Own Household (New York: George H. Doran Co., 1917), pp. 304–05.

Baker brushed Roosevelt off: Ibid., pp. 306–38.

In one exchange: Telegram from Baker to Roosevelt, March 20, 1917, in ibid., pp. 308–09.

“respectfully . . . eligible”: Letter from Roosevelt to Baker, March 23, 1917, in ibid., pp. 309–10.

“one of the most extraordinary”: Memorandum from Wilson to Newton D. Baker, March 27, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 41, p. 478.

“So far as I am able”: Livermore, Politics Is Adjourned, p. 21, quoting Roosevelt letter to F.C. Walcott, March 7, 1917.

He popped in unannounced: John Joseph Leary, Talks with T.R.: From the Diaries of John J. Leary, Jr. (Boston: 1920), p. 94.

two men, archrivals: Link, ed., Papers of Woodrow Wilson, vol. 42, p. 32 n.1.

during the twenty-five minutes: Joseph P. Tumulty, Woodrow Wilson as I Knew Him (Garden City, NY: 1921), p. 288.

Roosevelt’s expeditionary force: Cooper, Woodrow Wilson, pp. 393–95.

“There is but one Theodore Roosevelt . . . no other American is known”: Cong. Record, 65th Cong., 1st Sess. (1917), pp. 1437–38, 1492; “Senate Debate Spirited,” New York Times (April 29, 1917).

“any feature that would embarrass”: Letter from Wilson to Rep. Stanley Hubert Dent, Jr., May 11, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 42, p. 274.

“tenacity . . . in his veins”: Cong. Record, 65th Cong., 1st Sess. (1917), p. 2454 (statement of Sen. Johnson).

“Roosevelt Wins”: “Roosevelt Wins Army Bill Point,” New York Times (May 16, 1917).

Roosevelt immediately sent a telegram: Telegram from Roosevelt to Wilson, May 18, 1917, in Roosevelt, Foes of Our Own Household, p. 338.

“with a view to providing . . . not avail [him]”: “Will not Send Roosevelt: Wilson Not to Avail Himself of Volunteer Authority at Present,” New York Times, May 19, 1917.

Wilson sent a telegram: Letter from Wilson to Roosevelt, May 19, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 42, p. 346.

“men who have volunteered . . . American Army and Navy”: Letter from Roosevelt “[t]o the men who have volunteered for immediate service on the firing line in the divisions which Congress authorized,” May 21, 1917, in Roosevelt, Foes of Our Own Household, pp. 340–47.

“make a special study . . . branches of the Government”: Cong. Record, 65th Cong., 1st Sess. (1917), p. 459.

“render my task . . . executive work of the administration”: Letter from Woodrow Wilson to Asbury Francis Lever, July 23, 1917, in Link, ed., Papers of Woodrow Wilson, vol. 43 p. 245.

“We are jointly the servants”: Letter from Robert Latham Owen, August 2, 1917, in ibid., vol. 43, pp. 348–50.

“criticism and publicity . . . not efficiency”: Letter from Wilson to Robert Latham Owen, August 3, 1917, in ibid., vol. 43, pp. 357–58.

“any other matters”: Livermore, Politics Is Adjourned, pp. 129–30; Cong. Record, 65th Cong., 2d Sess. (1918), p. 6238.

“These are serious times . . . of the constituted Executive”: Letter from Wilson to Thomas Staples Martin, May 14, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 48, pp. 10–11.

president would assign: Letter from Edward Mandell House to Wilson, May 9, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 47, p. 584.

“the command of forces”: Charles Evans Hughes, “War Powers Under the Constitution,” Address to the Fortieth Annual Meeting of the American Bar Association (Saratoga Springs, NY: September 4, 1917).

“damned piker”: Diary entry of Col. Edward M. House, May 17, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 48, p. 50.

Wilson’s appointment: Livermore, Politics Is Adjourned, p. 133 (citing New York World, May 23, 1918).

American effort . . . was hamstrung: Ibid., pp. 62–63.

Back in the States: Ibid., pp. 73–76.

Members of both parties: Ibid., p. 64.

Chamberlain again led the effort: George E. Chamberlain, “Defects of the U.S. War Machine,” New York Times (January 13, 1918); “A Bill To Create a Department of Munitions,” S.3327, 65th Cong., 2d Sess. (January 4, 1918).

“upon high patriotic grounds”: “Munitions Reform to be a Party Issue,” New York Times, January 13, 1918.

“we would not only be disappointed”: Letter from Wilson to George Earle Chamberlain, January 11, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 45, p. 566.

“three distinguished citizens”: Cong. Record, 65th Cong., 2d Sess. (1918), pp. 1077–78.

“inefficiency in every bureau”: Letter from George Earle Chamberlain to Wilson, January 21, 1918, in Arthur S. Link, ed., Papers of Woodrow Wilson, vol. 46, p. 54.

“President has his blood . . . nerve any man needs”: Entry from the Diary of Josephus Daniels, January 19, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 46, p. 41.

Taking on Chamberlain: Livermore, Politics Is Adjourned, p. 101.

“Senator after Senator has appealed”: Letter from Wilson to Lee Slater Overman, March 21, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 47, p. 94.

“frank amazement . . . lawmaking power”: “President Seeks Blanket Powers for War Period,” New York Times (February 7, 1918).

in May, Congress enacted: 40 Stat. 556 (May 20, 1918).

“way in which . . . Politics is adjourned”: “An Address to a Joint Session of Congress,” May 27, 1918, in Link, ed., Papers of Woodrow Wilson, vol. 48, pp. 162–65.

first German peace note: “Translation of Communication from German Government to the President of the United States, as transmitted by the Chargé d’Affaires a.i. of Switzerland,” October 6, 1918, in Link, Papers of Woodrow Wilson, vol. 51, p. 253.

Wilson responded cautiously: “Communication from Robert Lansing to Friedrich Oederlin,” October 8, 1918, in ibid., vol. 51, pp. 268–69.

“general association . . . Abyss of Internationalism”: Livermore, Politics Is Adjourned, p. 216.

“to the dreamers”: Ibid., p. 210.

“we are not internationalists . . . duty-performing family life”: Theodore Roosevelt, “Yankee Blood Versus German Blood,” speech delivered at Springfield, IL, August 26, 1918, in Chicago Tribune (August 27, 1918); Livermore, Politics Is Adjourned, p. 212.

“poisonous peace propaganda”: Cong. Record, 56th Congress (1917), pp. 9392–94.

“Let us dictate peace”: “Roosevelt Assails 14 Peace Points,” New York Times, October 25, 1918.

Wilson had been drafting the statement: Link, ed., Papers of Woodrow Wilson, vol. 51, pp. 317–18, 343–44, 353–55.

final written appeal: “An Appeal for a Democratic Congress,” October 19, 1918, in ibid., vol. 51, pp. 381–82.

“occur in the most critical period . . . of their own choosing”: “An Appeal for a Democratic Congress,” in ibid., vol. 51, pp. 381–82.

November, the electorate delivered: Livermore, Politics Is Adjourned, pp. 225–26.

“one of the worst mid-term defeats”: Letter from Lodge to Lord Bryce, November 16, 1918, Henry Cabot Lodge Papers, Massachusetts Historical Society.

barnstormed the country: Richard L. Merritt, “Wilson and the ‘Great and Solemn Referendum,’ ” Review of Politics, vol. 27, no. 1 (Jan. 1965), p. 89.

Chapter 12

 Preparing for World War II

epigraph: Robert H. Jackson, Draft Autobiography, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.).

president neared the end: David J. Barron and Martin S. Lederman, “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review, vol. 121, no. 4 (February 2008), p. 1041.

“President should not be”: Memorandum from President Franklin Roosevelt for the Att’y Gen. (July 1, 1939) (on file with the Harvard Law School Library).

“would be amply justified . . . does not have”: Memorandum from Harold L. Ickes, Sec’y of the Interior, to President Franklin Roosevelt (July 1, 1939) (on file with the Harvard Law School Library).

“ ‘If we fail to get . . .”: Memorandum from President Franklin Roosevelt for the Att’y Gen. (July 1, 1939) (on file with the Harvard Law School Library).

“a great nation in a world”: Cordell Hull, Letter to the Chairman of the Committee on Foreign Relations (May 27, 1939) (on file with the Harvard Law School Library).

“violations of the law”: Thomas Jefferson to James Wilkinson, Feb. 3, 1807, reprinted in Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1905), vol. XI, pp. 147–50.

“this instance . . . is quite another thing”: Memorandum from Edward Kemp, Special Assistant to the Att’y Gen., to Frank Murphy, Att’y Gen. (July 7, 1939) (on file with the Harvard Law School Library).

“Apart from the legal side . . . tendencies and purposes”: Ibid.

Supreme Court had frustrated Roosevelt: Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: W. W. Norton & Company, 2010), pp. 2–4; Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt (Oxford: Oxford University Press, 2003), pp. 50–54.

Court-packing plan imploded: Jackson, That Man, p. 54.

because these criminal prohibitions: David J. Barron and Martin S. Lederman, “Commander in Chief at the Lowest Ebb,” pp. 1041–42.

“legalism”: James R. Holmes, Theodore Roosevelt and World Order: Police Power in International Relations (Dulles, MD: Potomac Books, 2006), p. 22; Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: Norton, 2009), p. 48.

at the same time: Richard Moe, Roosevelt’s Second Act (Oxford: Oxford University Press, 2013), pp. 51–52.

comfort with ambiguity: Barron and Lederman, “Commander in Chief at the Lowest Ebb,” p. 1042; Franklin Roosevelt, Fireside Chat (May 26, 1940); Franklin D. Roosevelt, Address on Constitution Day (Sept. 17, 1937), available at: www.presidency.ucsb.edu/ws/?pid=15459.

“wretched little bob-tailed . . . chuckle-headed”: Joseph Alsop and Robert Kintner, American White Paper: The Story of American Diplomacy and the Second World War (New York: Simon & Schuster, 1940), pp. 41–42.

Congress finally relented: Moe, Roosevelt’s Second Act, pp. 77–79.

The president initially wanted: William R. Casto, “Advising Presidents: Robert Jackson and the Destroyers-For-Bases Deal,” American Journal of Legal History, vol. 52, no. 2 (2012), pp. 70–71.

“In carrying out our neutrality laws”: Harold L. Ickes, The Secret Diary of Harold L. Ickes (Cambridge, MA: Da Capo Press, 1974), vol. II, p. 474.

underlying war bureaucracy: Kenneth S. Davis, FDR: Into the Storm (New York: Random House, 1993), p. 548.

“err on the side”: Sidley Fine, Frank Murphy: The Washington Years (Ann Arbor, MI: University of Michigan Press, 1984), p. 109.

“untimely and unwise”: Fine, Frank Murphy, p. 110.

Planes and other matériel: Davis, Into the Storm, pp. 513–14, 548.

middle of May: Moe, Roosevelt’s Second Act, pp. 122–24.

“scene has darkened . . . astonishing swiftness”: Conrad Black, Franklin Delano Roosevelt: Champion of Freedom (New York: Public Affairs, 2005), pp. 550–51.

“specific authorization”: Philip Goodhart, Fifty Ships that Saved the World (London: Heinemann, 1965), pp. 22–23; Moe, Roosevelt’s Second Act, p. 124.

mosquito boats were different: Casto, “Advising Presidents,” pp. 31–33.

still wanted the destroyers: Ibid., p. 35.

Picking up on news reports: Ibid., p. 36.

Senate committee convened: Committee Hearing, 86 Cong. Record, 8775 (June 21, 1940); Michael Korda, With Wings like Eagles (New York: Harper, 2009), pp. 93–119.

outraged senators listened: Casto, “Advising Presidents,” pp. 37–38; Committee Hearing, 86 Cong. Record, 8775 (June 21, 1940).

Jackson became the nation’s top lawyer: Davis, Into the Storm, p. 530.

thanks to a long association: Jackson, That Man, p. 136.

It was rumored: Conrad Black, Franklin Delano Roosevelt: Champion of Freedom (New York: Public Affairs, 2005), p. 443.

White House meeting in early June: Casto, “Advising Presidents,” pp. 32–34.

turned to Newman Townsend: Ibid., pp. 38–40; Newman A. Townsend to Attorney General, June 20, 1940, Robert H. Jackson Papers (on file with Library of Congress, Washington, D.C.)

controversy over the deal: Ibid., p. 41.

decision caused some concern: Jackson, That Man, p. 94.

White House issued a statement: “Torpedo Boat sale to British Halted: President Acted on Jackson’s Opinion That 1917 Law Would Be Violated,” New York Times, June 25, 1940, p. 10.

Walsh had already informed: Casto, “Advising Presidents,” pp. 41–42 n.216.

“glad that Bob Jackson”: Goodhart, Fifty Ships, p. 89.

By their terms: 18 U.S.C. §33 (1940 codification) states that “during a war in which the United States is a neutral nation, it shall be unlawful to send out . . . of the United States any vessel built, armed, or equipped as a vessel of war . . . with any intent . . . that such vessel shall be delivered to a belligerent nation”; Act of 1794, ch. 50, sec. 3 (June 5, 1794).

impact of Jackson’s ruling: Casto, “Advising Presidents,” pp. 44–46.

“use[d] . . . to the defense of the United States”: An Act to expedite national defense, and for other purposes, 76th Cong., 3d Sess., ch. 440, §14(a), 54 Stat. 676, 681.

“fit” for use: Act of July 19, 1940, 76th Cong., 3d Sess., ch. 644, §7, 54 Stat. 780, codified at 34 U.S.C. §493a (1940 codification).

prospect of England falling: Davis, Into the Storm, p. 558.

Henry Stimson: Henry Lewis Stimson, The Henry Lewis Stimson Diaries, available in the Yale University Library, vol. 30, p. 41.

“hook or crook”: Harold L. Ickes, The Secret Diary of Harold L. Ickes: The Lowering Clouds, 1939–1941 (New York: Simon & Schuster, 1954), vol. III, p. 233.

“long history of the world”: Telegram from Joseph Kennedy, U.S. Ambassador to the United Kingdom, to Cordell Hull, Sec’y of State (Aug. 15, 1940) in 3 Foreign Relations: Diplomatic Papers 1940, pp. 66, 67. Moe, Roosevelt’s Second Act, pp. 255–56.

“strong-man”: Ibid., p. 331.

Frankfurter advised: Ibid., pp. 191–94.

yet, at the very same time: Ibid., pp. 262–64.

journalist Joseph Alsop: Casto, “Advising Presidents,” pp. 53–54.

Cohen knew he would need: Casto, “Advising Presidents,” pp. 55–56.

“relative . . . absolute”: William Lasser, Benjamin V. Cohen: Architect of the New Deal (New Haven, CT: Yale University Press, 2002), p. 228.

As for the neutrality laws: Ibid., p. 224.

“congressional opinion”: Ibid., p. 222.

Roosevelt was impressed: Robert Shogan, Hard Bargain (Boulder, CO: Westview Press, 1999), p. 183; Jackson, That Man, p. 90.

conviction was bolstered: Jackson, That Man, pp. 82–89.

cabinet meeting the afternoon: Ibid., p. 87.

“too serious”: Stimson, Diaries, vol. 30, p. 57.

“The matter involves . . . the President and Mr. Wilkie”: Stimson, Diaries, vol. 30, p. 57.

“there was no chance”: Ibid., p. 81.

Cohen was in regular contact: Shogan, Hard Bargain, pp. 187–90.

He had even resigned: James Chace, Acheson: The Secretary of State Who Created the American World (New York: Simon & Schuster, 2008), p. 67.

Acheson immediately saw promise: Chace, Acheson, pp. 79–80;

appeared in the New York Times: “No Legal Bar Seen to Transfer of Destroyers,” New York Times, August 11, 1940.

“The enclosed idea may have a germ . . . limit his constitutional discretion”: Letter from Murry Nelson to Franklin Delano Roosevelt, August 12, 1940, President’s Secretary’s File, Franklin D. Roosevelt Library, Hyde Park, New York.

The following January: Stimson, Diaries, vol. 32, pp. 129, 131.

“speck of light . . . gloomy”: Ibid, vol. 30, p. 80.

Acheson and Cohen called: Moe, Roosevelt’s Second Act, pp. 263–64.

Frankfurter was telling Stimson: Stimson, Diaries, vol. 30, p. 91.

“in view of the Jackson opinion”: Ickes, Secret Diary, vol. III, p. 271.

“I think he feared . . . he was without it”: Jackson, That Man, p. 95.

help, and perhaps assurance: Ibid., pp. 79–82.

Townsend agreed: William R. Casto, “Attorney General Robert Jackson’s Brief Encounter with the Notion of Preclusive Presidential Power,” Pace Law Review, vol. 30, No. 2 (2010), pp. 372–374; Newman A. Townsend, Memorandum for the Attorney General, August 13, 1940, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.).

Vinson’s July amendment: Casto, “Jackson’s Brief Encounter,” pp. 374–76; Newman A. Townsend, Memorandum for the Attorney General, August 13, 1940, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.).

still not convinced: Jackson, That Man, pp. 96–98; Shogan, Hard Bargain, p. 234.

“it may be possible”: Black, Champion of Freedom, p. 578.

chief of naval operations was willing: Shogan, Hard Bargain, pp. 217–19.

Back at the Justice Department: Shogan, Hard Bargain, p. 218.

“In view of your constitutional power”: Robert H. Jackson, Draft Opinion Regarding the Sale of Over-Age Destroyers to Great Britain, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.), quoted in Casto, “Jackson’s Brief Encounter,” p. 366 n.8.

“The opinion—not rest on Stimson”: Casto, “Jackson’s Brief Encounter,” p. 376 n.75.

Jackson chose to rely: Robert J. Delahunty, “Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative,” Vermont Law Review (2013), p. 87.

“very good . . . out in the open”: Stimson, Diaries, vol. 30, p. 93.

still some concern: Shogan, Hard Bargain, pp. 232–33.

“should actually have been put forward”: Stimson, Diaries, vol. 30, p. 108.

Roosevelt had been assured: Shogan, Hard Bargain, p. 178.

Jackson and his lawyers: Moe, Roosevelt’s Second Act, pp. 265–66.

Roosevelt set up a phone call: Moe, Roosevelt’s Second Act, pp. 265–66.

An earlier version: Robert H. Jackson, Draft Opinion Regarding the Sale of Over-Age Destroyers to Great Britain, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.) quoted in Casto, “Jackson’s Brief Encounter,” p. 376 n.75.

“So far as concerns this statute . . . certain restrictions thereon”: Robert H. Jackson, “United States Attorney General: Opinion on Exchange of Over-Age Destroyers for Naval and Air Bases,” American Journal of International Law, vol. 34 (August 27, 1940), pp. 728–37.

“fait accompli”: Shogan, Hard Bargain, p. 238; Moe, Roosevelt’s Second Act, pp. 267–68.

“method by which”: James A. Hagerty, “Willkie Condemns Destroyer Trade,” New York Times (September 7, 1940).

famous Princeton historian: Edward Corwin, “Executive Authority Held Exceeded in Destroyer Deal,” New York Times (October 13, 1940).

“endorsement of unrestrained autocracy . . . Attorney General of the United States”: Corwin, “Executive Authority.”

“very little patience . . . when action is imperative”: Chace, Acheson, p. 80.

“chief hold of the Congress . . . don’t know enough”: Casto, “Advising Presidents,” vol. 52, no. 1 (2012), p. 97 n.527; Henry Stimson, Diaries of Henry L. Stimson (September 9, 1940), at Henry L. Stimson Papers, Yale University.

Jackson’s final opinion had even reaffirmed: Robert Jackson, “Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers,” 39 U.S. Op. Atty. Gen. 484 (August 27, 1940); Shogan, Hard Bargain, p. 247.

“The fact was that the opinion . . . authority notwithstanding”: Robert H. Jackson, Draft Autobiography, Robert H. Jackson Papers (on file with the Library of Congress, Washington, D.C.).

“Your president says”: Thomas Fleming, The New Dealers’ War (New York: Basic Books, 2001), pp. 2–5.

“The turning point”: Stimson, Diaries, vol. 30, p. 99.

heels of that historic transaction: Moe, Roosevelt’s Second Act, pp. 325–27.

before war was declared: “Roosevelt Due to Order Army To Take Over Factory Today: Coast Strikers Refuse to Go Back to Work,” Washington Post (June 9, 1941).

wake of the Japanese bombing raid: “U.S. Carries Out Seizure of Peabody-Salem Tanneries,” Christian Science Monitor (November 24, 1943).

declared martial law: “Hawaii Under Martial Law, Islands Quiet; Blackout Enforced, Violators Punished,” New York Times (December 11, 1941).

following spring: Rennie Taylor, “Resettlement of Japanese Involves Unusual Problems,” Washington Post (May 4, 1942).

Congress supported: An Act to Provide a Penalty for Violation of Restrictions or Orders with Respect to Persons Entering, Remaining in, Leaving, or Committing Any Act in Military Areas or Zones, March 21, 1942, 18 U.S.C.A. §97(a), 56 Stat. 173.

arrest of two groups: “Military Court Named to Try Saboteur Cases: F. D. Proclamation Denies Access to Civil Courts,” Boston Globe (July 3, 1942).