Lincoln's Legal Transgression: Breaking Laws As President

Abraham Lincoln is considered one of the most revered presidents of the United States, largely due to his role in ending the Civil War. However, many believe that he broke constitutional law when he declared war on the South. The Constitution did not explicitly state whether it was illegal for a state to leave the Union once it had entered, and Lincoln stated that once a state entered the Union, it was bound by it forever.

Lincoln's suspension of the writ of habeas corpus, his declaration of war without the consent of Congress, and his signing of an arrest warrant for the Chief Justice of the US are some of the reasons why people believe he broke the law. However, others argue that Lincoln's actions were permissible under the Constitution and that he only infringed on the Constitution slightly.

Lincoln's suspension of Habeas Corpus

On April 27, 1861, President Abraham Lincoln suspended the writ of habeas corpus in Maryland, authorising the arrest and detention of people suspected of supporting disunion in Baltimore without trial. This was in response to the perceived threat of rebellion and invasion in the border states, particularly in Baltimore, Maryland, following the secession of southern states and the battle at Fort Sumter on April 12-14.

Article 1, section 9, clause 2 of the United States Constitution states: "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 believed that the public safety required the suspension of habeas corpus.

In July 1861, Lincoln addressed the suspension in a speech to Congress, stating:

> Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety.

Lincoln's blockade of Southern ports

On April 19, 1861, President Abraham Lincoln issued a Proclamation of Blockade Against Southern Ports. This proclamation, like Lincoln's more famous Emancipation Proclamation and Proclamation suspending the Writ of Habeas Corpus, had the force of law despite bypassing the legislative process. The constitutionality of these acts of presidential power is still debated.

Before announcing the blockade, Lincoln and his cabinet considered other options. Some argued that the government should close the ports rather than blockade them. Closing the ports would have been a simpler option, requiring only an executive order. However, one defect in this approach was that the ordinance of closure only allowed enforcement in American territorial waters. Additionally, violators would have only been guilty of violating a US revenue law, which could only be tried in federal courts in the states and districts where the infractions occurred—areas now under Confederate control. More importantly, closing the ports would not have forced European nations to acknowledge this action because international law did not recognize this form of trade interdiction.

Lincoln's Secretary of State, William Henry Seward, persuaded him to adopt a blockade. Seward knew that most nations recognized blockades, which would avoid international complications. By issuing a notification of a blockade, the Union implicitly gave the Confederacy belligerent status, as a blockade is a belligerent right that implies fighting with an external enemy.

On July 13, 1861, six days after the first blockade proclamation, Congress passed the Ports Act, authorizing the president to close the ports. However, Lincoln wisely continued the blockade and did not use this law to close a port until April 11, 1865, when foreign intervention was no longer a threat.

The task of patrolling 3,500 miles of shallow coastline with 189 inlets, harbors, and rivers required a much larger force than the Navy had available in April 1861. The specific geography of the Confederate shoreline, with its numerous barrier islands, complicated the implementation and maintenance of the blockade. Inlets separated these islands, often opening into large estuaries that allowed shallow-draft vessels to keep communications open without entering the ocean or the Gulf of Mexico.

The Union ships had to establish the blockade of each Confederate port by written notification. After this, vessels in port had 15 days to leave without fear of capture. Once the blockade was instituted, at least one Union vessel had to remain on station. If the blockaders left or were driven off, they had to reinstate the blockade by sending another notification and allowing a 15-day grace period for vessels to exit without penalty.

The blockade of Southern ports was a highly effective strategy that isolated the Confederacy and prevented it from establishing a full-scale war economy. It exacerbated inflation and, when raw materials ran out or industrial centers were captured or destroyed, the Confederacy had little means to replace the losses.

Lincoln's arrest of Ohio Congressman Clement Vallandigham

Abraham Lincoln is considered one of the most revered presidents in American history, largely due to his role in ending the Civil War. However, many believe that he broke constitutional law during his presidency, particularly when he declared war on the South. Lincoln stated that once a state entered the Union, it was bound by it forever, and that the South did not have the right to secede. However, there was no actual law that stated this, and the Constitution did not explicitly address whether or not it was illegal to leave the Union.

One notable incident where Lincoln may have broken the law was the arrest and military trial of Ohio Congressman Clement Vallandigham. Vallandigham was a leader of the Copperhead faction of anti-war Democrats during the Civil War. He was a strong supporter of states' rights, including the right to secede, and believed that the Union had no constitutional right to regulate slavery or to militarily attack the Confederacy. He opposed every military bill before Congress, leading his critics to charge him with favouring the Confederacy.

On May 1, 1863, Vallandigham gave a major speech in which he denounced the war as an attempt by "King Lincoln" to free the slaves by sacrificing the liberty of white Americans. He was arrested on May 5, 1863, as a violator of General Order Number 38, which warned against expressing sympathies for the enemy. Vallandigham was tried by a military court, convicted, and sentenced to confinement in a military prison during the continuance of the war.

Lincoln, not wanting to make Vallandigham a martyr, ordered him to be sent through the enemy lines to the Confederacy. From there, Vallandigham travelled to Canada, where he won the Democratic nomination for Governor of Ohio in absentia. However, he lost the general election in a landslide. Vallandigham's arrest and trial sparked protests and debates about the limits of presidential power during wartime.

In addition to the Vallandigham case, Lincoln also suspended the writ of habeas corpus during the Civil War, which was another controversial action that raised questions about the extent of executive power.

Lincoln's arrest of Chief Justice Roger Taney

On May 25, 1861, federal troops arrested John Merryman, a Maryland planter, on suspicion of involvement in a conspiracy as part of an armed secessionist group. Merryman was detained without a warrant at Fort McHenry. Merryman's attorney petitioned the U.S. Circuit Court for Maryland, overseen by Chief Justice Roger Taney, for his client's release.

On May 26, Taney issued a writ of habeas corpus and ordered Fort McHenry's commander, General George Cadwalader, to appear in the circuit courtroom along with Merryman and explain his reasons for detaining him. Cadwalader did not comply with the writ, instead sending a letter to Taney explaining that President Lincoln had authorized military officers to suspend the writ when they felt there were public safety concerns.

Taney then tried to notify Cadwalader that he was in contempt of court, but soldiers at Fort McHenry refused the notice. On May 28, Taney issued an oral opinion, followed by a written opinion a few days later, stating that the Constitution intended for Congress, not the President, to have the power to suspend the writ during emergencies.

The controversy surrounding Lincoln's suspension of the writ of habeas corpus and Taney's subsequent ruling in Ex Parte Merryman led to speculation that Lincoln ordered an arrest warrant for Taney. This theory is based primarily on a manuscript written by Lincoln's friend and bodyguard, Ward Hill Lamon, in the 1880s. According to Lamon, Lincoln secretly ordered the arrest of Taney but later abandoned the proposal. However, historians generally dismiss this claim as lacking credible evidence, and no copy of the alleged warrant has been found.

The dispute between Lincoln and Taney highlights the ongoing debate over the limits of executive power and the interpretation of the Constitution during a time of national crisis. While Lincoln argued for the necessity of suspending habeas corpus to ensure public safety, Taney asserted that only Congress had the authority to suspend the writ. This incident marked a significant constitutional showdown between the President and the Chief Justice, with Lincoln's actions raising questions about the legality of his conduct during the Civil War.

Lincoln's violation of the 2nd Amendment

Abraham Lincoln is regarded as one of the most compelling presidents in US history, largely because he grappled with some of the most significant constitutional law questions. One of the most controversial actions during his presidency was the suspension of the writ of habeas corpus, which guarantees citizens' right to take legal action against unlawful detention.

On April 27, 1861, Lincoln suspended habeas corpus for "disloyal persons" who could not be "adequately restrained by the ordinary processes of law." This was done in an attempt to quell the southern rebellion, and although the Constitution states that the "privilege of the writ of habeas corpus" may be suspended in "cases of rebellion or invasion," many believed that Lincoln had exceeded his authority by acting without Congressional approval.

Lincoln's decision was directly challenged by Supreme Court Chief Justice Roger Taney, who argued that the Constitution clearly intended for Congress, not the President, to have the power to suspend the writ during emergencies. Taney's opinion, however, could not be enforced due to the nature of the conflict.

Lincoln's suspension of habeas corpus is often cited as a violation of the Second Amendment, which protects citizens' right to be free from unlawful detention. While some argue that Lincoln's actions were necessary to preserve the Union during the Civil War, others see it as a breach of constitutional rights.

In addition to the suspension of habeas corpus, Lincoln also took other controversial actions during the Civil War, such as measures to suppress free speech. For example, in the Ex Parte Milligan case, a gentleman opposed to the war was convicted and sentenced to death for what may have been no more than associating with another individual who wanted to take up arms against the Union.

While Lincoln's actions during the Civil War were controversial and tested the boundaries of presidential power, many scholars argue that they were ultimately permissible under the Constitution or were at least not egregious trespasses. The unprecedented crisis caused by the war compelled Lincoln to exercise broad executive authority, and he often sought Congressional authorization for his actions after the fact.

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