Lincoln's Law-Breaking: A Historical Inquiry

Abraham Lincoln is remembered as a national hero for his wartime leadership and efforts to preserve the Union and abolish slavery. However, there is debate over whether he broke the law during his presidency. Lincoln's most controversial actions include suspending habeas corpus, imposing martial law, and issuing the Emancipation Proclamation. Some argue that these actions infringed on states' rights and exceeded the powers of the executive branch. Others claim that Lincoln's actions were necessary and permissible under the Constitution, especially given the unprecedented crisis of the Civil War. The academic discussion tends to favour Lincoln, but the lack of clear judicial rulings at the time makes it difficult to determine the legality of his actions definitively.

Lincoln's suspension of habeas corpus

Abraham Lincoln's suspension of habeas corpus was one of his most controversial decisions. The doctrine of habeas corpus is the right of any person under arrest to appear in person before the court, to ensure that they have not been falsely accused. The US Constitution specifically protects this right in Article I, Section 9: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it".

Lincoln initially suspended habeas corpus in Maryland in 1861 to try large numbers of civilian rioters in military courts and to prevent the movement of Confederate troops on Washington. The order was eventually extended in response to different threats. In the summer of 1862, President Lincoln had called up the state militias, leading to increased opposition to the Civil War within the Union. By General Orders No. 141, September 25, 1862, Lincoln subjected protestors to martial law and the suspension of habeas corpus.

In 1862, Lincoln issued Presidential Proclamation 94, which suspended the writ of habeas corpus. The proclamation stated that "all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission".

While Lincoln's suspension of habeas corpus was controversial, the academic discussion of the issue tends to favour him. Legal scholars argue that nearly all of Lincoln's actions were permissible under the Constitution, and when he did infringe upon it, his trespasses were not egregious. Lincoln's conduct of the war demonstrates the need for a strong federal government in wartime, but also that it is possible to respect the rule of law and maintain constitutional protections during a crisis.

Lincoln's imposition of martial law

Abraham Lincoln's imposition of martial law during the Civil War is a highly debated topic among legal scholars and historians. Lincoln's actions during the Civil War, including his imposition of martial law, were unprecedented and set a precedent for how a president could act during a time of war.

On September 15, 1863, Lincoln imposed Congressionally-authorized martial law on Kentucky, Maryland, and Missouri. The act allowed the president to suspend habeas corpus throughout the entire United States, which Lincoln had already done under his own authority on April 27, 1861. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as draft dodgers.

Lincoln's proclamation was challenged in Ex parte Milligan (1866), where the Supreme Court ruled that Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional in areas where the local courts were still in session. The Court stated that "martial law... destroys every guarantee of the Constitution." However, the Court also acknowledged that martial law could be necessary in certain circumstances, such as when civil authority cannot operate due to foreign invasion or civil war.

Lincoln's actions during the Civil War, including the imposition of martial law, were justifiable given the unprecedented nature of the crisis. He was compelled to exercise executive authority in a broad manner to preserve the Union. While some of his actions may have infringed on the Constitution, they were not egregious and were often subsequently authorized by Congress.

Lincoln's emancipation of slaves

Abraham Lincoln is considered one of the most compelling presidents in the history of the United States, as he wrestled with some of the most fundamental and momentous questions of constitutional law. Lincoln's stance on slavery and his subsequent emancipation proclamation were no exception.

Lincoln personally abhorred slavery, but he felt confined by his constitutional authority as president to challenge slavery only in the context of necessary war measures. He also worried about the reactions of those in the loyal border states where slavery was still legal. Lincoln is said to have summed up the importance of keeping the border states in the Union by saying, "I hope to have God on my side, but I must have Kentucky."

Lincoln's hand was forced early in the war when, in May 1861, three slaves owned by a Confederate colonel escaped and sought protection within Union-held Fortress Monroe. When the colonel demanded their return under the Fugitive Slave Law, Union General Benjamin F. Butler instead appropriated the fugitives and their valuable labour as "contraband of war". The Lincoln administration approved Butler's action, and soon other fugitive slaves sought freedom behind Union lines.

In July 1862, Congress passed the Militia Act, which allowed Black men to serve in the U.S. armed forces, and the Confiscation Act, which mandated that enslaved people seized from Confederate supporters would be declared forever free. Lincoln also tried to get the border states to agree to gradual emancipation, including compensation to enslavers, but with little success.

On September 22, 1862, Lincoln issued the preliminary Emancipation Proclamation, which declared that as of January 1, 1863, all enslaved people in the states currently engaged in rebellion against the Union "shall be then, thenceforward, and forever free". The proclamation marked a crucial shift in Lincoln's views on slavery, turning the Civil War from a struggle to preserve the Union to one focused on ending slavery.

The final Emancipation Proclamation, signed on January 1, 1863, applied only to enslaved people in the Confederacy, and not to those in the border states that remained loyal to the Union. It also expressly exempted parts of the Confederacy that had already come under Northern control. Most importantly, the freedom it promised depended upon Union military victory.

Lincoln justified emancipation as a wartime measure, and was careful to apply it only to the Confederate states currently in rebellion. He urged those freed by the proclamation to "abstain from all violence, unless in necessary self-defence" and to "labour faithfully for reasonable wages".

While the Emancipation Proclamation did not end slavery in the nation, it captured the hearts and imagination of millions of Americans and fundamentally transformed the character of the war. It added moral force to the Union cause and strengthened the Union both militarily and politically. As Lincoln himself said of emancipation in February 1865, "It is, in fact, the central act of my administration, and the great event of the 19th century."

Lincoln's blockade of Southern ports

The blockade was an attempt to prevent the export of cotton and the smuggling of war materiel into the Confederacy. While it was somewhat porous, it was an important economic policy that successfully prevented Confederate access to weapons that the industrialized North could produce for itself.

The constitutionality of Lincoln's blockade was questioned, as some believed it violated the Constitution because it was an act of war, which only Congress could declare. However, in 1863, the U.S. Supreme Court found that the blockade was constitutional.

The proclamation of the blockade stated:

> Whereas an insurrection against the Government of the United States has broken out in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and the laws of the United States for the collection of the revenue cannot be effectually executed therein comformably to that provision of the Constitution which requires duties to be uniform throughout the United States:

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> And whereas a combination of persons engaged in such insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in commerce on the high seas, and in waters of the United States: And whereas an Executive Proclamation has been already issued, requiring the persons engaged in these disorderly proceedings to desist therefrom, calling out a militia force for the purpose of repressing the same, and convening Congress in extraordinary session, to deliberate and determine thereon:

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> Now, therefore, I, Abraham Lincoln, President of the United States, with a view to the same purposes before mentioned, and to the protection of the public peace, and the lives and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliberated on the said unlawful proceedings, or until the same shall ceased, have further deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States, and of the law of Nations, in such case provided. For this purpose, a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave either of the said ports, she will be duly warned by the Commander of one of the blockading vessels, who will endorse on her register the fact and date of such warning, and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo as prize, as may be deemed advisable.

The blockade was successful in blocking 95% of cotton exports from the South, devaluing its currency and severely damaging its economy. It also had a negative impact on the economies of other countries, particularly those in Europe that depended on Southern cotton for their textile industries.

By the end of the war, the Union Navy had grown to a size of 671 ships, making it the largest navy in the world. The Union blockade played a prominent role in the North's victory in the Civil War.

Lincoln's recruitment of soldiers

Abraham Lincoln's recruitment of soldiers during the Civil War was a complex and controversial issue, with Lincoln facing opposition from various groups. Initially, Lincoln was hesitant to recruit black soldiers, but eventually came to see it as a military necessity. Here is a detailed overview of Lincoln's recruitment of soldiers:

Opposition to Recruiting Black Soldiers

Lincoln faced opposition to recruiting black soldiers from several quarters, including political opponents, military leaders, and the general public. Some argued that arming black soldiers would outrage the South and lead to further division, while others claimed that black soldiers lacked the necessary discipline, intelligence, and fortitude to be effective. There were also concerns about the reaction of white soldiers, especially those from Border States, who might refuse to fight alongside black troops. Lincoln himself shared some of these concerns and was cautious about the potential impact on public opinion and the war effort.

Early Efforts to Recruit Black Soldiers

Despite the opposition, Lincoln authorized several early efforts to recruit black soldiers. In September 1861, Secretary of the Navy Gideon Welles allowed the recruitment of blacks into the Navy as "boys," but they were not intended for combat roles. In October 1861, Secretary of War Simon Cameron authorized the hiring of black fugitives in South Carolina, but this plan failed due to a lack of support from General Thomas W. Sherman. In April and May 1862, new Secretary of War Edwin Stanton encouraged the arming of blacks in South Carolina, but this effort was hampered by political ineptitude and opposition from white officers and Congress members.

The Emancipation Proclamation and Recruitment Efforts

Lincoln's issuance of the Emancipation Proclamation on January 1, 1863, was a turning point in the recruitment of black soldiers. The proclamation called for the enrollment of blacks in the Union Army and Navy, and Lincoln began to actively explore recruitment options. He met with Vice President Hannibal Hamlin, who advocated for the recruitment of black soldiers and presented Lincoln with letters from young Union officers willing to accept commands in black regiments. Lincoln was moved by this show of support and authorized the formation of a brigade of colored men.

Recruitment Efforts in the South

Lincoln also directed recruitment efforts in the South, particularly in areas under Union control. He corresponded with military leaders such as General John A. Dix and Governor Andrew Johnson in Tennessee, encouraging them to recruit black soldiers. In Louisiana, General Nathaniel Banks played a significant role in organizing black regiments, despite his opposition to the use of black officers. By August 1863, Banks had formed five regiments of about 2,300 men each and was working to increase recruitment.

The Role of the Militia Act of 1862

The Militia Act of 1862 was a key piece of legislation that granted the War Department limited authority to enlist "persons of African descent." This act applied to both free blacks in the North and "fugitives" and "contrabands" from the South, opening the door for their enrollment in the Union Army.

Impact of Black Soldiers

The recruitment of black soldiers had a significant impact on the Civil War. Over two years, more than 200,000 African Americans joined the Union Army and Navy, with about half of the recruits coming from the South. Black soldiers served in various capacities, including infantry, artillery, cavalry, and engineering regiments. They faced discrimination and were often assigned menial tasks, but their performance on the battlefield dispelled racist notions about their inferiority. Their contribution to the war effort was crucial, and their presence as soldiers challenged the idea of the innate inferiority of Africans.

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