My Turn: The most important legacy of Franklin Pierce, ‘an attorney of the first order’

For the Monitor
Published: 6/28/2020 6:00:27 AM

In a season of despair seeing millions of mostly young people trying to come to grips with the horrific death of an African American man at the hands of a white police officer in Minneapolis, a move to banish from our public squares the names and images of historic leaders whose records on matters of race have been less than sterling has caught fire.

Statues of George Washington, Jefferson Davis, John Calhoun, Robert E. Lee, and even, curiously, Ulysses S. Grant, who led the Union Army effort putting an end to a Confederacy that maintained slavery, have all come down.

And there are, as of this writing, plans afoot to remove the statues of at least a dozen more early 19th-century political and military leaders who were either supportive of slavery, or benignly indifferent to its continued existence.

Inevitably, what can only be described as a cleansing campaign has reached Concord with the move to remove the name of Franklin Pierce from the University of New Hampshire’s School of Law.

On the surface this effort seems entirely justified. Pierce, who served one term in the White House from 1853 to 1857, and endured the humiliation of not even being re-nominated by his own party, was an apologist for the Old South.

While he was privately opposed to slavery, Pierce opposed abolitionism as a movement that he thought was destined to destroy the United States, a country that during Pierce’s presidency was still just over 75 years old.

Keep the country together, Pierce argued, and worry about slavery later.

Although this stand had many adherents in the 1850s, including perhaps even a majority of Northerners, it is one that clearly now that puts Pierce on the wrong side of history.

That students of all colors should, in turn, want to see Pierce’s name removed from the School of Law makes perfect sense and is entirely justifiable.

But yet precisely because the discussion centers on a law school, and these are law students, should another aspect of Pierce’s career be considered: During the Civil War, Pierce emerged as a critic of the way in which that war was being conducted.

Even more, he especially objected to the Lincoln administration’s suspension of the writ of habeas corpus for those who dared to speak out against the war.

This was not just an academic matter: In April 1861, President Lincoln instructed General Winfield Scott, the commanding general of the Army of the U.S.: “You are engaged in repressing an insurrection against the laws of the United States.”

The suspension was originally to cover a swath of the nation from Philadelphia to the north and Washington to the south, but eventually, through a series of proclamations, was applied to the entire country.

This was clearly, on Lincoln’s behalf, a usurpation of power not delegated to him by the Constitution, and soon saw thousands of citizens, some guilty of nothing more than criticizing the president, rounded up and thrown behind bars; imprisoned with catch-all charges of sedition or treason.

Writers, political activists, lawmakers, and judges were similarly stripped of their right to dissent, while several critical newspapers, including most prominently the New York Daily News, were forced to cease publication after the federal government yanked their postal privileges.

Franklin Pierce, whose career as an attorney began when he was admitted to the bar at the age of 23, was offended. This was not the country he grew up to love. Nor was this a use of powers that could in any way be regarded as constitutional.

Pierce’s resentment of these obviously unconstitutional maneuvers soon turned to outrage when Secretary of State William Seward heard rumors that Pierce was consorting with an extremist group called the Knights of the Golden Circle.

This really was a seditious effort: The Knights of the Golden Circle, launched in the North, was adamantly opposed to the war to the point of consorting with Confederates. Pierce had nothing to do with them.

But Seward thought otherwise, sending to the former president a query demanding that Pierce explain himself. “It would appear that you were a member of a secret league, the object of which is to overthrow the Government.”

In response, Pierce was barely able to control his anger, but revealing a lawyerly air, told Seward: “As there is not the slightest ground for any reference to me in the connection indicated, I take it for granted that your inference is wholly erroneous.”

Pierce subsequently demanded that Seward’s charges and his response to those charges be made part of the public record. When the secretary of state declined, a Pierce friend in the U.S. Senate inserted the correspondence in the Congressional Globe, to the administration’s embarrassment.

Pierce knew he could go to battle against a nefarious whispering campaign because he had the financial resources, legal acumen, and public pulpit to do so.

For the thousands more similarly maligned, but without Pierce’s assets, days were played out in dark, forbidding prisons where they were denied the most basic constitutional protections.

This group of unfortunates included one Frank Key Howard, editor of the Baltimore Exchange, who had criticized Lincoln’s war policies and was subsequently forced to spend a year behind bars, “without trial and in flagrant violation of all laws,” Pierce later noted.

It should have been no surprise, then, that Pierce in a prominent speech in downtown Concord on July 4, 1863, would attack the Lincoln administration for repeatedly taking from ordinary Americans the freedom of dissent.

Who, Pierce asked, gave to Lincoln the “power to dictate to any one of us when we must or when we may speak.”

Ultimately, Pierce’s response to slavery places him in the category of an entire procession of presidents from Washington to James Buchanan, men who simply failed to appreciate the immorality of slavery, or decided that there was little they could do one way or the other to end it.

But his defense of civil liberties, particularly his stand that every American should possess the right of dissent especially during a time of war, ranks him as an attorney of the first order, and one whose name on a law school mast is worthy of careful consideration.

(Garry Boulard is the author of “The Expatriation of Franklin Pierce – The Story of a President and the Civil War.”)

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