1. 030013-0012
1
Tactics used during The American Civil War and their Constitutionality
To what extent was the declaration of the Emancipation Proclamation, and the Suspension of the
Writ of Habeas Corpus by President Lincoln constitutional?
Eugene Smith
Candidate Number: 030013-0012
May 2016
Group 3 History
Mentor: Mr. Rutkas
Word Count 3,544

2. 030013-0012
2
Abstract
This essay will examine the question “To what extent was the declaration of the
Emancipation Proclamation, and the Suspension of the Writ of Habeas Corpus by President
Lincoln constitutional?” To begin there will be a brief explanation of the events that led up to
Lincoln’s actions, as well as an examination of the responses that took place afterwards. Once
that is carried through this paper will then explore the legal justifications of both the
Emancipation Proclamation, as well as the suspension of the Writ of Habeas Corpus, using law
journals, the Constitution itself, and other primary documents in order to determine the
constitutionality of these actions. This paper will examine both positions on Lincoln’s actions by
breaking up each section into a defense argument or a petitioner argument. By continually
switching between the two stances, this paper emulates the process of direct examination, used in
the American court system.
After examining both sides of each argument it will clearly be concluded that Lincoln’s
actions were both constitutional and unconstitutional. Specifically, the declaration of the
Emancipation Proclamation will be deemed constitutional, due to the state’s right to secede.
While the Suspension of the Writ of Habeas Corpus will be considered unconstitutional due to
the fact that the Habeas Corpus clause is a power granted to the legislative branch, not the
executive.
Word Count: 220

3. 030013-0012
3
Table of Contents
Introduction 4
Background
The Emancipation Proclamation
The Writ of Habeas Corpus
Analysis
Arguments in favor of Emancipation
Proclamation
Arguments against Emancipation
Proclamation
Argument supporting suspension of Habeas
Corpus
Argument against suspension of Habeas
Corpus
Conclusion
Work Cited
4
8
10
14
14
16
18
20

4. 030013-0012
4
Introduction
With over 850 thousand deaths, the American Civil War was the deadliest war the United
States ever fought ( Mintz and McNeil.). In charge of it all was President Abraham Lincoln who
successfully ended the war on April 18, 1865, by surrender of the Confederate army (PBS).
However, while Lincoln may be known as “The Great Emancipator” who ended slavery and held
the Union together, there is some debate on whether his acts were constitutional, in particular
when examining the Emancipation Proclamation, and the suspension of Habeas Corpus. These
two actions were both infringements on civil liberties, but are often overlooked by most
historians due to the moral dilemma behind the Civil War. This essay will assume role of a
Supreme Court proceeding to examine to what extent was the declaration of the Emancipation
Proclamation, and the Suspension of the Writ of Habeas Corpus by President Lincoln
Constitutional.
The Emancipation Proclamation
Before the Civil war began, Abraham Lincoln had no desire to end slavery, and even
claimed that he had no power to do so under the Constitution (Bartleby). Lincoln makes this
clear at his first inaugural address by saying “I have no purpose, directly or indirectly, to
interfere with the institution of slavery in the States where it exists. I believe I have no lawful
right to do so, and I have no inclination to do so”. Even when the war first began, Lincoln urged
that runaway slaves be returned back to owners under the Slave Clause of Article 4 of the

5. 030013-0012
5
Constitution (Heritage). It wasn’t until Benjamin F. Butler drafted The Fugitive Slave Act of
1850 that men in the Union begin to keep the runaway slaves to do their own work. (Smith)
Nevertheless, Lincoln offered to return the slaves to the Confederates along with prolonging
slavery until 1900, in hopes of ending the war (PBS). This call to peace was not successful and
only resulted in Congress passing the Second Confiscation Act of 1850. This gave the Union the
right to free the slaves of all men who were convicted of treason or rebellion against the United
States (Freedmon). Therefore, any slave who escaped from the Confederation was automatically
free since secession was seen as an act of rebellion. In effect, the meeting of July 13, 1862,
between Lincoln, the Secretary of State William H. Seward and Gideon Welles, the Secretary of
the Navy became inevitable. Here is where they first discussed the emancipation of all slaves in
the confederation, and by July 22nd Lincoln presented his first draft to the entire cabinet.
(L.O.C).

6. 030013-0012
6
Figure 1 the first Draft of the Emancipation Proclamation
This tactic required proper timing, and it was decided that the proclamation would have to be
made after winning a battle so that it did not seem like a last resort. Nevertheless, it could only
affect the states in the confederacy so that they would not lose support from Delaware,
Maryland, Missouri West Virginia and Kentucky, who all were slave states still in the Union.

7. 030013-0012
7
Figure 2 Union and Confederate States
This was imperative to the Union because with these states there were many tactical advantages.
For example, Kentucky controlled access to multiple major river systems. This included the
Cumberland, which goes directly into heart of the Confederacy (Michigan). On September 22,
1862, after winning the Battle of Sharpsburg, Lincoln issued a preliminary Emancipation
proclamation (N.A.R.A). This proclamation declared that if the South did not return back to the
Union by January 1, 1863, he would issue a proclamation declaring all slaves in confederate
states free. This however did not give Lincoln the reaction he wanted from the South, and on
January 1 1863, Lincoln issued the emancipation proclamation. In this speech he declares “that
all persons held as slaves within the rebellious states are, and henceforward shall be
free"(N.A.R.A).

8. 030013-0012
8
The Writ of Habeas Corpus.
Habeas Corpus is defined as, a writ requiring a person under arrest to be brought before a
judge or into court, especially to secure the person's release unless lawful grounds are shown for
their detention (Oxford). Lincoln's pursuit to suspend this liberty began on April 15, 1861, when
he ordered Congress to have a special session on this matter, which would take place on July 4th.
However, after Virginia’s secession from the Union on April 17th, of the same year, Lincoln’s
plans had to be changed in order to keep up with the progression of the war(Dueholm). Now with
one less state, the Union’s only way to send troops and supplies to Washington D.C by rail was
to go through Baltimore, Maryland. However, at the time Maryland’s loyalty was being
questioned due to the attack that took place against Lincoln’s sixth regiment in February(Gravel).
As a home to many confederate sympathizers, Lincoln felt the need to monitor Maryland’s
Legislative session of April 26th to determine the loyalty of all the house members. After
viewing this session Lincoln felt the need to suspend habeas corpus in hopes of keeping the rails
lines open by forcing Maryland to be loyal. On April 27, 1861, Lincoln wrote to General
Winfield Scott ordering him to suspend the Writ of Habeas Corpus on or near any military line
between Philadelphia and Washington D.C if public safety required it (Dueholm). In effect,
many men who were suspected of treason were arrested and tried without the protection of
Habeas Corpus. However, this was tested with the U.S Federal Court case of Ex parte
Merryman. On May 25, 1861 John Merryman was arrested for hostility against the Government,
Merryman and his lawyer petitioned Chief Justice Roger Brooke Taney, for a Writ of Habeas

9. 030013-0012
9
Corpus (Dueholm). Justice Taney agreed to it and then on the 27th issued the writ to General
Cadwalader who declined to provide one under the new proclamation of the president (T.A.H).
Not content with that response Justice Taney demanded that United States Marshal Bonifant
force Cadwalder to come into court the following day “to answer for his contempt in refusing to
produce the body of John Merryman” (T.A.H). However, this declaration only resulted in a reply
from Bonifant stating that he was not allowed to enter the fort where Cadwalder was stationed,
along with the fact that there was no writ to be given. A few days later, Justice Taney issued an
opinion about this matter stating only Congress had the power to suspend the writ. Nevertheless,
Taney’s opinion did not stop Lincoln, seeing that he followed his original plan with the May 10th
proclamation, which suspended the liberty on part of the Florida coast, and then on July 2nd for
all areas between Philadelphia and New York (Dueholm).

10. 030013-0012
10
Arguments in favor of the Emancipation Proclamation
International Law
Looking back at the Fugitive Slave Act of 1850, the Union was no longer required to
return any slaves that escaped the Confederacy. As stated by General Butler slaves were now
contraband of war since the Confederacy gave up the right to hold the United States accountable
for constitutional actions by seceding. This in fact meant that the situation at hand was more than
rebellion, it was an act of war between two separate nations. Looking at it this way, Lincoln no
longer had to be held by the restraints of the constitution when dealing with the Confederation.
Instead Lincoln could operate under international law; which grants countries the right of
exportation through Eminent Domain(Burton). At that time the United States Supreme Court still
believed that these sets of laws applied to the government (Farber). Nevertheless, International
law has a separate standard of rules and procedures that the government could follow. The
Confederacy was no longer protected by the fourth amendment which prevented unreasonable
seizures, now they faced the concept of confiscation under international law. Confiscation is
legally defined as the act of one state in appropriating property belonging to another state or to
its subjects, either as a belligerent right or as a punishment for carrying contraband of war,
blockade running or the like (Americana). Therefore, Lincoln had the authority to declare the
proclamation as a way to capture territory of the south, and the slaves in particular.

11. 030013-0012
11
Military Strategy
Quoting from Article 1 Section 2 of the United States Constitution; “The President shall
be Commander in Chief of the Army and Navy of the United States and of the Militia of several
states, when called into actual Service of the United States; he may require the Opinion, in
writing of the principal Officer in each of the executive departments, upon any duties of their
respective offices…”. As stated, Lincoln had power over all military forces, which meant he had
the authority and responsibility to strategize effective ways to win all wars and protect national
security. During the Civil War it is believed that Lincoln could have been using the
Emancipation as a way to weaken the Confederate nation which makes the emancipation
constitutional. Lincoln even confirms this in his letter to S.P. Chase when he says” “If I take the
step must I not do so, without the argument of military necessity” (House Divided Project). This
is further proved when analyzing to which states the emancipation proclamation applied. Instead
of freeing all slaves the emancipation only freed slaves in the states of South Carolina,
Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, and North
Carolina. These were considered the “rebelling states” and Lincoln felt it would be strategic to
declare that slavery was abolished solely in these states. However, in doing so, Lincoln also
defended himself from a constitutional debate. If the emancipation were to affect all states
Abraham Lincoln would be in direct violation of the 4th amendment, which protects citizens from
illegal search and seizures. By solely aiming towards the rebellious states, it can be seen as a
strategic military action against a country at battle.

12. 030013-0012
12
This claim is further justified through military means by looking at the international
involvement in the Civil War. Both Britain and France had a keen interest in the development of
the Civil War. Looking at the French, it was clear that the government wanted to stay neutral
towards the war; however, many citizens sympathized with the south due to the need of cotton
that was being exported from the South (study.com). Nevertheless, it must be noted that the need
for more cotton originated from actions of the north. Due to the Union naval blockades, the south
was no longer able to export any commodities to other nations. While this was intended to have
an effect on the south’s economy, it unintentionally caused a negative effect to France’s
economy as well. Without the constant flow of cotton, textile factories in France had to slow
production which caused many workers to be laid off. Along with that, the Confederation was
also pressing France to recognize them as an independent nation from the Union (Wilson) The
first step in doing so was the appointment of John Slidell as an ambassador to France. In
February 1862, Sidel traveled to the country in hopes of achieving sovereignty in the eyes of
France. While he was welcomed by Napoleon 3rd, he refused to recognize the south as an
independent nation (Slidell). Even so this trip was not a complete, Napoleon did agree to sign a
contract stating that six vessels would be built for the south (Slidell).
Looking at Britain, the situation was somewhat similar to France’s. As ties between the
U.S and Britain were improving, there was a want for neutrality in this war. However, just like
the French felt an effect from the naval blockades, so did the British. Aware of this, the
confederation sent ambassadors out to Britain in 1861 to discuss the issue (Hubbard). With this

13. 030013-0012
13
knowledge Lincoln sent Charles Francis Adams to Britain to warn them that any interference
would be seen as an act of aggression towards the United States (Delahanty). While this was
temporally settled, there still was not a flow of cotton being shipped to Britain, which would
cause an economic crisis for the country if not settled. This could have eventually resulted in the
attempt to break the naval barricade seeing that Britain still posed the strongest Navy in the
world.
With the threat of international intervention, Lincoln was pressed with the task of
preventing such an occurrence to take place. To do so, Lincoln used the emancipation to change
the reasoning behind the war. Up until the spring of 1862, when the first emancipation was
delivered, (citation needed) the Civil war was fought over the State's right to secede, and the
preservation of the Union. By issuing the emancipation, the war now was being fought on the
basis of slavery. This meant that neither Britain nor France could support any efforts that
contributed to the pro-slavery south due to their own liberal beliefs. In the British Empire slavery
was abolished on August 1, 1834(Slavery Abolition Act 1833; Section XII"). While in France it
was abolished for a second time in 1848(Smith) Therefore when looking the Emancipation
Proclamation as a tactical militaristic decision, Abraham Lincoln actions were constitutional.

14. 030013-0012
14
Argument against Emancipation Proclamation
The argument against Lincoln’s emancipation proclamation requires looking at a specific
constitution amendment. While the argument stating that Lincoln’s actions are justified by
military strategy, one must note that Lincoln refers to the war as an instance of rebellion. This is
even evident when looking at his address to congress on June 4th when he declared that he
possessed the power to suspend the Writ of Habeas Corpus over the southern states. Therefore, if
the war is no more than a case concerning high treason, the citizens in the Confederation are still
part of the union. This means that they are still under the protection of the constitution, and
specifically the 4th Amendment which states, “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized”.
Therefore, by freeing every slave at the same time, Lincoln was violating the citizen’s protection
under this amendment.
Argument in Favor of Lincoln suspending Habeas corpus
Looking at the suspension of habeas corpus, there is little justification for Lincoln’s
action. In actuality, there seems to be only one plausible one, which is Lincoln’s. This defense
comes from the interpretation of Article 1 Section 9 of the constitution which reads: the privilege

15. 030013-0012
15
of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or
invasion the public safety may require it. Despite this clause, Lincoln still had one more problem,
the location of this clause. Since this clause is in Article 1, which is commonly known as the
Article directed towards the legislative branch, many believed this power was given to it
respectively. However, Lincoln was aware of this and was prepared for questioning on the July
4th special session. When addressing congress, he wrote “we have a case of rebellion, and the
public safety does require [suspension]’ and then continued to say “"Now it is insisted that
Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as
to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous
emergency, it cannot be believed the framers of the instrument intended, that, in every case, the
danger should run its course, until Congress could be called together; the very assembling of
which might be prevented ... by the rebellion. No more extended argument is now offered, as an
opinion ... will probably be presented by the Attorney General. Whether there shall be any
legislation upon the subject, and if any, what, is submitted entirely to the better judgment of
Congress” (Dueholm). To clarify, Lincoln is making note that the constitution does not make
note of who this power is vested upon, and it is unfair just to assume it is given to the legislative
branch solely because it is in Article 1. By his understanding there are no devoted articles to
each branch, because there is nothing specified saying it is.

16. 030013-0012
16
Figure 3 there are no specific subtitles for each branch
Therefore, Lincoln had all rights to do so since not only did he have constitutional backing, but
he was also backed by of Attorney General Edward the following day (Dueholm).
Arguments against Lincoln suspending Habeas Corpus
While Lincoln may have been able to justify his actions by a technicality, any legal
scholar would argue that Lincoln took advantage of the simplicity of the Constitution.
Throughout the Constitution each article is broken up by who it is addressing. Article 1 to the
Legislative, 2 to the executive, 3 to the judicial, etc. By taking a clause that was in Article 1 and
using it as an executive power, Lincoln acted out of his constitutional boundaries. However, if
one were to hold Lincoln’s constitutional interpretation accountable to the rest of his presidency
it would become clear that Lincoln was working out of his authority. This is even more apparent
when looking at his other actions. If Lincoln truly believed that Article 1 Section 9 applied to
him, then he would also be subject to all the other regulations in that particular section. Right

17. 030013-0012
17
under the clause about Habeas Corpus, there is a clause about Bill of Attainders and Ex Post
Facto Laws. In particular, when looking at a Bill of Attainder it is defined as a special legislative
enactment that imposes a death sentence without a judicial trial upon a particular person or class
of persons committing serious offenses, such as treason or a felony. Therefore, when examining
the situation by Lincoln’s constitutional, interpretation some of his other actions would be
illegal. Such as the declaration of the Civil War, because without a trial many men were killed
while serving for the confederate militia, and because of Lincoln’s belief that secession is illegal,
these men were protected by the constitution. Therefore, it is obvious Lincoln was aware that he
was working out of his constitutional authority.

18. 030013-0012
18
Conclusion
After taking on the role of Supreme Court Justice and arguing both sides of an extremely
controversial topic, it can be concluded that the declaration of Emancipation Proclamation
constitutional. This is because I firmly believe that the act of secession is legal due to the 10th
Amendment, which vests all powers not granted to the federal government to the States, as long
as it is not prohibited. Since there is nothing in the Constitution that states secession is illegal, the
states do have the right to secede from the country. However, this does mean that the protection
given under the Constitution is no longer available. Therefore, Lincoln does not have to consider
the 4th amendment since the Confederacy was a separate nation. Nevertheless, it must be noted
that the Emancipation Proclamation is not a legally binding document. How can a leader of a
country make a declaration about the legality of actions in a neighboring country? It is within the
President’s constitutional authority to make all kinds of proclamations, but, it does not mean they
are law. Therefore, the reaction of the slaves, slave owners, and sympathizers only attests to the
underlying feeling of still being a part of the Union. While this may have been merely for
geographic reasons, the Confederacy responded when there was no need. In my opinion I believe
the Emancipation Proclamation can merely be viewed as propaganda used against the south. It
has no legal binding behind it and is no more than a way to poke at the Confederacy.
On the other hand, when looking at the suspension of the Writ of Habeas Corpus it can be
concluded that this act was unconstitutional. While Lincoln may have tried to work under a
technicality, it is obvious that Article 1 Section 9 is dedicated to the Legislative branch. There

19. 030013-0012
19
are no instances of the executive branch being addressed in this specific article, only the Senate
and the House. For Lincoln, as an attorney, to try this strategic technicality was clever, albeit
unconstitutional. Even so, after this declaration, Lincoln is advised by Chief Justice Taney that
he did not have this specific power. For Lincoln to still continue with his suspension is blatant
disrespect for the opinion of Justice Taney, and the American system of government. Whatever
the Supreme Court decided is the supreme law of the land. This holds true for all courts, and
branches of government. Therefore, the suspension of habeas corpus by President Lincoln, and
the disregard of Justice Taney’s dissent are both unconstitutional.
Nevertheless, one must note that even though Lincoln worked out of his authority at
times, he did what he considered to be best for the country at that specific time. That is the whole
point of the executive branch. To make executive decisions in times of need. If it were not for his
actions, the Civil War could have possibly ended with two separate nations, one pro-slavery, one
for abolishment. These polar belief systems neighboring so closely could have resulted in further
bloodshed on both sides of the line.
Word Count:3544

20. 030013-0012
20
Work Cited
Primary Sources
Emancipation Proclamation:
Abraham, Lincoln, Emancipation Proclamation January 1, 1863. The Emancipation
Proclamation.
http://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/
Lincoln’s First Inaugural address
Abraham, Lincoln, First Inaugural address March 4, 1861.manuscript. Inaugural
Addresses of the Presidents of the United States
http://www.bartleby.com/124/pres31.html
Letters to Salmon Chase
Abraham, Lincoln. Letter to Salmon Chase 2 Sept. 1863, manuscript. The list of 150 Most
Teachable Lincoln Documents House Divided Project
http://housedivided.dickinson.edu/sites/lincoln/letter-to-salmon-chase-september-2-1863/
Preliminary Emancipation Proclamation
Abraham, Lincoln. The Preliminary Emancipation Proclamation September 22, 1862.
American Originals National Archives and Records Administration
http://www.archives.gov/exhibits/american_originals_iv/sections/preliminary_emancipati
on_proclamation.html
U.S Constitution
United States Constitution. print
http://www.archives.gov/exhibits/charters/constitution_transcript.html

21. 030013-0012
21
Secondary
“10 Facts about the Emancipation Proclamation.”
http://www.civilwar.org/education/history/emancipation-150/10-facts.html. N.p., 2003.
Web.
Burton C. William Burton’s Legal Thesaurus, 4E. 2007. 13 Dec. 2015 http://legal-
dictionary.thefreedictionary.com/expropriation
Charles M. Hubbard, "James Mason, the `Confederate Lobby,' and the blockade debate of March
1862," Civil War History (1999) 45#3 pp 223-37
“Civil War Facts.” http://www.civilwar.org/education/history/faq/. Civil War Trust ,
Web.
Delahanty, Ian (2006). Charles Francis Adams, Great Britain, and the American Question
in 1861.Undergraduate Review, 2, 120-133. Available at:
http://vc.bridgew.edu/undergrad_rev/vol2/iss1/19
DeRosa, Marshall . “So Much Power in So Few Hands: Reevaluating Abraham Lincoln’s
Emancipation Proclamation.” Library of Law and Liberty 2003:
http://www.libertylawsite.org/liberty-forum/so-much-power-in-so-few-hands-
reevaluating-abraham-lincolns-emancipation-proclamation/. Web.
Farber, Daniel A. Lincoln’s Constitution. Chicago The University of Chicago Press ,
2003. http://press.uchicago.edu/ucp/books/book/chicago/L/bo3634853.html. Web.
Gienapp, William E. “Journal of the Abraham Lincoln Association.” Abraham Lincoln
and the Border States 13 1992: 13–46. Print
Gravel, Sean . “Florida Law Student Land.” The Constitutionality of The Emancipation
Proclamation 2013: n. http://fl.lawstudentland.com/post/51740019569/the-
constitutionality-of-the-emancipation. Web.
Guelzo, Allen . “A Complicated and Constitutional Act of Liberty and Justice.” Library of Law
and Liberty 2003: http://www.libertylawsite.org/liberty-forum/a-complicated-and-
constitutional-act-of-liberty-and-justice/. Web.

22. 030013-0012
22
John Slidell." Encyclopedia of World Biography. 2004. Encyclopedia.com. 13 Sep. 2015
<http://www.encyclopedia.com>.
Mintz, S., & McNeil, S. (2015). Overview of the Civil War. Digital History.
http://www.digitalhistory.uh.edu/era.cfm?eraid=7&smtid=1
Nichols, David. “The Emancipation Proclamation: Abraham Lincoln’s Constitutionally Modest
Proposal.” Library of Law and Liberty 1 Jan. 2013. Web.
Smith , Jessie C. Black First 2000 Years of Extraordinary Achievement . Detroit Michigan:
Visible Ink Press , 1994. Print.
Smith, M. T. "Benjamin F. Butler (1818–1893)." Encyclopedia Virginia. Virginia Foundation for
the Humanities, 28 Jun. 2014. Web. 13 Sept. 2015.
Spalding , Matthew . “Fugitive Slave Clause.” The Heritage Guide to the Constitution
Massachusetts : Heritage Foundation . Print.
“The Civil War and Emancipation .” http://www.pbs.org/wgbh/aia/part4/4p2967.html. PBS,
Web.
Vermilya , Daniel . “Britain, France & The American Civil War.”
http://study.com/academy/lesson/britain-and-france-respond-to-the-american-civil
war.html. Web.