Abraham Lincoln: The Great Infringer

Abraham Lincoln: The Great Infringer of Constitutional Rights During the War Fought Between the States

            Abraham Lincoln and the Republican Party of the Northern States fought to preserve the Union, which was formed under the constitutional laws agreed upon during the Constitutional Convention of 1787; however, during the war to restore this “more perfect” Union, Lincoln and his party would infringe upon those very rights they were advocating to protect. 

            During the American Civil War or what would be rightly titled the War Between the States, Abraham Lincoln and his political party violated and infringed upon the rights of all American citizens. Southerners, who seceded from the Union to preserve the principles of limited government were not the only Americans threatened by Republican Party policies; Northerners were also under attack and being stripped of their Constitutional rights. Atrocities committed against American citizens would occur off the field of battle both above and below the Mason-Dixon Line during this conflict. This essay will explore the various unconstitutional acts taken by the 16th President of the United States through the sources of many Northern newspapers, before Lincoln had them shut down and censored.  

            Many Northerners agreed that there was a great danger that threatened to break up the Union in the months prior to the firing on Fort Sumter. Some would argue that secession was the right of any sovereign state; while the other side would debate that it was an unconstitutional act. However, before the first shots were fired, many Northerners felt that a peaceful compromise could have and should have been arranged between all the States of the Union. Abraham Lincoln’s call for a militia from all the states remaining in the Union and their deployment to the South was not only be seen as an invasion by Southerners, but was also seen as an unconstitutional act by many in the North, as evident in many Northern newspapers during the first year of the war. This type of Northern criticism would not last long under the Lincoln Administration.

            The Columbia Democrat and Bloomsburg General Advertiser printed a question on the lips of many Northerners on the outset of war, “If the President has abided by the Constitution, why it is necessary to legalize his action?”[1] The action being questioned was Lincoln’s call for a militia to deploy into the South and preparations for war without a Congressional declaration of war. Congress was out of session during the serious altercation between General P.G.T. Beauregard and Major Robert Anderson at Fort Sumter on April 12, 1861. Such a state of emergency should have required that Congress be recalled to discuss that growing crisis and deliberate on a response or course of action to take; however, Abraham Lincoln chose not to follow the law of the land, but took upon himself congressional authority to act.

            Governor Beriah Magoffin of Kentucky wrote the President a letter declaring his opposition to Lincoln’s actions against the Constitution and his desire that Kentucky remain a neutral state during the course of Lincoln’s “war of coercion.”[2] Magoffin explained the roles and authority of the three branches of government to Lincoln and that he had violated the Constitution. Article I. Section 8. of the Constitution states that Congress has the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies…. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”[3]

Despite the reality that Congress would have declared war, Lincoln overstepped his authority as a member of the Executive Branch when he assumed the powers and authority of Congress; and based his actions on how he thought they would deliberate on the issue. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”[4] Congress had not called Lincoln into “Service of the United States” to assume his role as Commander in Chief, he simply self-appointed that role and duty upon himself. He also granted permission to himself to raise a militia to suppress the secession of the Southern States           

            Governor Magoffin would also argue that even though Congress had passed An Act to Provide for Calling Forth the Militia in 1795 to “suppress insurrections and to repel invasions,” Lincoln did not allow “the courts no judgment or decision, or efforts on the part of the marshals to execute the law.”[5] Even Lincoln knew that he had acted above the law, as Magoffin pointed out: “The President admits, in his message to Congress, that necessity had compelled him to act without the authority of law, and asks that his acts shall be sanctioned.”[6] Some in the North would counter similar cries of Lincoln’s unconstitutional actions with, “So what?”[7]

            Even though some newspapers like the Marshall County Republican said, “so what?” to Lincoln’s unconstitutional acts, they would still admit that his actions were illegal. “Mr. Lincoln DID exceed his authority when he called for troops, when he ventured upon large expenditures, when he blockaded the ports, and when he made armies and brigades, in number and power, such as had never before been known in this land….His act was unconstitutional and illegal.”[8] Their counter argument was that it was okay for the President to break the law to save the Union. As the Marshall Country Republican would point out, Lincoln would break more than one constitutional law to preserve the Union and save the Constitution.

As the war escalated, the Lincoln Administration stopped at nothing to ensure victory over the South; which meant not only suppressing all enemies in the South with their war machine, but any and all suspected enemies in the Northern States. An Indiana newspaper, The Plymouth weekly Democrat, wrote the situation in Plymouth in September, 1861:

The spirit of violence and intolerance seems to be loosened for a season, and to run riot at will. Under the presence of putting down treason, mobs suppressing free speech and free press, arbitrary arrests and imprisonments, proclamations of martial law and all its despotic incidents, are matter of frequent occurrence, even with the loyal States. Political demagogues with no attachment to principle but the principle of self-interest, with no consistency of political conduct, except the persistent consistency of keeping themselves before the public in every turn of public affairs, and setting their sails to catch the wind of popular favor whichever way it blows, seem to be taking on themselves, almost solely, the duty of preserving the Union, by fanning to resistless fury the flames of civil war.[9]

            Anyone in the North who did not agree with Lincoln or the Republican Party’s policies, and were outspoken about it, were in danger of being classified as a traitor and arrested. To make this process of incarcerating political enemies to the Republican Party and their policies easier, Lincoln suspended habeas corpus on April 27, 1861. The suspension came twelve days after Lincoln called for 75,000 militiamen to enter the Southern States, which had reclaimed their sovereign status, effectively initiating an undeclared war with them. Lincoln justified the suspension of habeas corpus due to the fact that on April 19, as the 6th Massachusetts Regiment was marching into the federal capital they were attacked by approximately 20,000 people defending the South’s position and protesting Lincoln’s unconstitutional actions.[10] After the smoke cleared, four soldiers and 12 civilians were dead and a host of others were wounded during the first land-based bloodshed of the war.[11]  

 The suspension of habeas corpus effectively nullified American citizen’s constitutional “right to a speedy public trail by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with witnesses against them, to bring witnesses in their favor, and to have the assistance of legal counsel.”[12] Initially, Lincoln only suspended habeas corpus along the “rail route between Philadelphia and Washington” after the attack of the 6th Massachusetts Regiment [13] However, he would soon expand the range of the suspension—and his unconstitutional authority to do so—when he also authorized his military officers to suspend habeas corpus wherever the “military line” was drawn in the sand;[14] Lincoln would instruct his military officers that they would “in [their] discretion suspend the writ of habeas corpus…at any point, on or in the vicinity of any military line which is now, or which shall be used,” to incarcerate any suspected traitors to the cause.[15] Citizens in the North would soon discover that the war was closer to them than they had previously imagined.  

With that right suspended, thousands of Northern citizens were illegally arrested by the army and held in military prisons from months to years during the duration of the war. In the North, a witch hunt for traitors arose and brought with it dire consequences. The Clearfield Republican printed on August 14, 1861, that “if a man deplores the exercise of unconstitutional powers, he is a Traitor. If he doubts that war will accomplish the restoration of the Union he is a Traitor. He may perform all his duties as an upright and loyal citizen; he may never have been guilty of a dishonest, mean or discreditable action; he many have fought the battles of the country, and have contributed liberally of his means to sustain the Government and provide for the families of those who have gone forth to fight the battles of the country, nevertheless he is a Traitor.”[16]

Being labeled a traitor, then or even now, implies treasonous actions committed by the citizen; however, according to the Constitution, an American citizen cannot “be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”[17] By suspending habeas corpus, the Lincoln Administration could incarcerate their outspoken opponents, who were criticizing them of their unconstitutional actions without warrant or witnesses, if needed.

Many were incarcerated simply for exercising their First Amendment right to speak their opinion and criticize the actions of the Lincoln Administration. No state in the North was safe, as many would find out in the State of Maryland. With disregard for constitutional law and due process, Lincoln disbanded the police force in Baltimore and had the Mayor, a member of Congress, editors, and private citizens arrested without any specific charges against them.[18] Francis Key Howard, an editor for a newspaper which had been printing anti-Lincoln sentiments in Baltimore and the grandson of Francis Scott Key, was one of the many men who were arrested in that city during the first year of the war.[19]

Just after midnight on September 13, 1861, several men under orders from Secretary of State Seward entered Howard’s home and arrested him.[20] The “gang” of men who entered his home would also violate his Fourth Amendment right; when without a warrant, they ransacked every room of his house and carried off all his “private memoranda, bills, note-books, and letters.”[21] Howard was taken to Fort William McHenry, where he would be accompanied by fifteen others that day who were also arrested and drug out of their homes; “most of the members of the Legislature from Baltimore, Mr. Brown, the Mayor of the City, and one of [their] Representatives in Congress, Mr. May” joined Howard at the fort.[22] He was aware of the irony of the situation and later wrote about it in his account of his imprisonment:

When I looked out in the morning, I could not help being struck by an odd and not pleasant coincidence. On that day, forty-seven years before, my grandfather, Mr. F. S. Key, then a prisoner on a British ship, had witnessed the bombardment of Fort McHenry. When on the following morning, the hostile fleet drew off, defeated, he wrote the song so long popular throughout the country, the “Star-spangled Banner.” As I stood upon the very scene of that conflict, I could not but contrast my position with his, forty-sever years before. The flag which he had then so proudly hailed, I saw waving, at the same place, over the victims of as vulgar and brutal a despotism as modern times have witnessed.[23]

Threat of unlawful imprisonment would silence some opponents in the North; but the First Amendment would also have to be suspended to silence Lincoln’s the critics in the media. During the first year of the war, it was common to find criticism of the Administration in Washington, but that opposition soon disappeared from newspapers. After 1861, the press was controlled through fear of warrantless arrest, by censorship—and in many cases—literal destruction of their offices and presses. Lincoln’s infringement of the First Amendment was what Daniel Webster had warned about and made so beautifully clear when he spoke on the topic of free speech: “It is a right to be maintained in peace and in war; It is a right which cannot be invaded without destroying constitutional liberty.”[24]

             Lincoln claimed that he had to break the law in order to save the Constitution and the Union from destruction. He declared, “I conceive that I may, in an emergency, do things on military grounds which cannot be done constitutionally by Congress.”[25] This same mindset would be his reasoning for blockading Southern ports without declaring war, ordering for an increase in defense spending, calling for an increase in the size of the army and navy, suspending habeas corpus—all of which only Congress has authority to do—and violated other fundamental rights of American citizens. Lincoln was perfectly at peace with the suspension of the legal principle of “innocent, until proven guilty.” He advocated that citizens should be arrested “not so much for what has been done, as for what probably would be done… In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many”[26]

            Twenty-eight years before the war started, a series of essays were published by a man calling himself by the name of “Locke,” which addressed the issues of States Rights and the danger of a strong central government.[27] This unidentified citizen of Virginia would pen some prophetic words:

[T]he Federal Government has a direct interest to enlarge its own powers, by encroaching on the rights of the States….And when we reflect on the strong love which most men feel, for patronage and power, the influence of this interest upon the mere men who wield the Federal Government, (and who as to this argument, must be identified with it) affords much cause for distrust and fear. It is therefore much more probable that the Federal Government will abuse its power, than that the States will abuse theirs. And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil…Let us now suppose an abuse of this right. It would consist in an attempt by the Federal Government to coerce obedience to an unconstitutional law.—This, sir, it seems to me, is despotism in its very essence. If the Federal Government may enforce one unconstitutional law, it may enforce every unconstitutional law, and thus all the rights of the States and the people may fall one by one, before the omnipotence of that Government.[28]

The South left the Union because they felt that the federal government had shown a pattern of abuse of its delegated rights through the Constitution. Just as “Locke” had said, the constant infringements of constitutional law convinced them that the federal government had become despotic. As the war progressed, one unconstitutional law after another was enforced upon the citizens. In the end, Lincoln and the Republican Party’s attempts to secure pure political power over all the States and their people, created the deadly rift between the States.

Over the course of four years, while the war raged on land and at sea to preserve the Union based on the policies of a constitutional republic, Abraham Lincoln and the Republican Party infringed upon the rights of all citizens in the Northern and Southern states. The South would fight for State’s Rights and their independence; but they would not be the only citizens whose civil liberties and rights would be threatened during the war. The Northern citizens would suffer through many unconstitutional infringements and lose their rights all for the sake of a “more perfect union.” Lincoln broke laws to “protect” the supreme law of the land; and in so doing, he set the united States down a destructive path. His actions changed the principle that the Federal government was bound by delegated powers, and granted unto it unlimited powers.  

Bibliography

Cincinnati daily press. (Cincinnati [Ohio]), 06 Sept. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn84028745/1861-09-06/ed-1/seq-1/.

Clarke, William Harrison. The Civil Service Law: A Defense of Its Principles, With Corroborative Evidence From the Works of Many Eminent American Statesmen. New York: Charles T. Dillingham, 1891.

Clearfield Republican. (Clearfield, Pa.), 14 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn83032199/1861-08-14/ed-1/seq-1/.

Columbia Democrat and Bloomsburg general advertiser. (Bloomsburg, Pa.), 17 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn85025181/1861-08-17/ed-1/seq-1/.

Dilorenzo, Thomas J. The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War.  New York: Three Rivers Press, 2002.

Hodak, George. "Lincoln Suspends Habeas Corpus." ABA Journal 95, no. 4 (April 2009): 72. Academic Search Premier, EBSCOhost (accessed January 2, 2014).

Howard, Francis Key. Fourteen Months in American Bastiles. Baltimore: Kelly, Hedian and Piet, 1863.

Lincoln, Abraham. Abraham Lincoln; Complete Works, Comprising his Speeches, Letters, State Papers, and Miscellaneous Writing, Volume Two.  Edited by John G. Nicolay. New York: The Century Co., 1920.

"Locke." The Examiner, and Journal of Political Economy; Devoted to the Advancement of the Cause of States Rights and Free Trade, Volume 2. Edited Condy Raguet. Philadelphia: American Philosophical Society, 1835.

Marshall County Republican. (Plymouth, Ind.), 01 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn84038034/1861-08-01/ed-1/seq-1/.

Maryland Constitutional Convention, The Debates of the Constitutional Convention of the State of Maryland, Volume I. Annapolis: Richard P. Bayly, 1864.

Neely, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, Inc., 1991.

The Plymouth weekly Democrat. (Plymouth, Ind.), 19 Sept. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn87056248/1861-09-19/ed-1/seq-1/.

U.S. Constitution Art. 1. Sect. 8.

U.S. Constitution Art. 2. Sect. 2.

U.S. Constitution Art. 3. Sect. 3.

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[1] Columbia Democrat and Bloomsburg general advertiser. (Bloomsburg, Pa.), 17 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn85025181/1861-08-17/ed-1/seq-1/.

[2] Cincinnati daily press. (Cincinnati [Ohio]), 06 Sept. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn84028745/1861-09-06/ed-1/seq-1/.

[3] U.S. Constitution Art. 1. Sect. 8.

[4] U.S. Constitution Art. 2. Sect. 2.

[5] Cincinnati daily press. 06 Sept. 1861.

[6] Ibid.

[7] Marshall County Republican. (Plymouth, Ind.), 01 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn84038034/1861-08-01/ed-1/seq-1/.

[8] Ibid.

[9] The Plymouth weekly Democrat. (Plymouth, Ind.), 19 Sept. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn87056248/1861-09-19/ed-1/seq-1/.

[10] George Hodak, "Lincoln Suspends Habeas Corpus." ABA Journal 95, no. 4: 72. Academic Search Premier, EBSCOhost (accessed January 2, 2014).

[11] Ibid.

[12] Thomas J. DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (New York: Three Rivers Press, 2003), 135.

[13] Ibid.

[14] Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties, (New York: Oxford University Press, Inc., 1991), 11.

[15] Ibid.

[16] Clearfield Republican. (Clearfield, Pa.), 14 Aug. 1861. Chronicling America: Historic American Newspapers. Lib. of Congress. http://chroniclingamerica.loc.gov/lccn/sn83032199/1861-08-14/ed-1/seq-1/.

[17] U.S. Constitution Art. 3. Sect. 3.

[18] Francis Key Howard, Fourteen Months in American Bastiles, (Baltimore: Kelly, Hedian and Piet, 1863), 4-5.

[19] Thomas J. DiLorenzo, The Real Lincoln, 133-134.

[20] Francis Key Howard, Fourteen Months in American Bastiles, 7.

[21] Ibid, 8.

[22] Ibid, 9.

[23] Ibid.

[24] Maryland. Constitutional Convention, The Debates of the Constitutional Convention of the State of Maryland, Volume I, (Annapolis: Richard P. Bayly, 1864), 398.

[25] William Harrison Clarke, The Civil Service Law: A Defense of Its Principles, With Corroborative Evidence From the Works of Many Eminent American Statesmen, (New York: Charles T. Dillingham, 1891), 246.

[26] Abraham Lincoln, Abraham Lincoln; Complete Works, Comprising his Speeches, Letters, State Papers, and Miscellaneous Writing, Volume Two, ed. John G. Nicolay and John Hay, (New York: The Century Co., 1920), 348.

[27] “Locke,” The Examiner, and Journal of Political Economy; Devoted to the Advancement of the Cause of States Rights and Free Trade, Volume 2, ed. Condy Raguet, (Philadelphia: American Philosophical Society, 1835), 113.

[28] Ibid, 114-115.