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By Virtue of the Power in Me Vested

By Virtue of the Power in Me Vested

The Civil War marked a turning point in the history of the powers of the President. From the outset, critics objected to Lincoln’s actions, in part because he had not sought Congressional approval.  Skeptics wondered if the President had not exceeded his Constitutional authority when he called state militias into service, solicited volunteers, suspended the writ of habeas corpus, ordered a naval blockade, and directed war-related borrowing and spending by the federal government. Lincoln confronted legal challenges: The Prize Cases tested his naval blockade and Ex parte Merryman objected to the suspension of habeas corpus. Lincoln’s reliance upon his war powers raised questions about the legitimacy of the Emancipation Proclamation as well.

The debate on Lincoln’s authority played out, in part, through a contest of pamphlets. Figures such as retired United States Supreme Court Justice Benjamin Curtis, New York lawyer Charles Kirkland, northern Democrat James Brooks, Kentucky Congressman George Yeaman, and British journalist Goldwin Smith were among those who debated in anticipation of the Proclamation.

Benjamin R. Curtis (1809-1874)
Executive Power.
Boston: Little, Brown and Company, 1862

Charles P. Kirkland (1830-1904).
A Letter to the Hon. Benjamin R. Curtis, Late Judge of the Supreme Court of the United States, in Review of His Recently Published Pamphlet on the “Emancipation Proclamation” of The President.
New York: Latimer Bros. & Seymour, Law Stationers, 1862.

James Brooks (1810-1873)
The Two Proclamations. Speech of the Hon. James Brooks, before the Democratic Union Association, Sept. 29th, 1862.
New York : Van Evrie, Horton & Co., [1862]

George H. Yeaman (1829-1908)
Speech of Hon. Geo. H. Yeaman, of Kentucky, on the President’s Proclamation, delivered in The House of Representatives, December 18th, 1862.
Baltimore: J. Murphy & Co., 1863

Goldwin Smith (1823-1910)
Speech of Mr. W.E. Forster, M.P., The Slaveholders’ Rebellion; and Professor Goldwin Smith’s Letter on The Mortality of the Emancipation Proclamation.
Manchester, England: Union and Emancipation Society’s Depot, 1863

Isaac W.K. Handy (1815-1878)
[Diary entry, July 21, 1863]
Handy Family Papers

Without recourse to the writ of habeas corpus, Union detainees were unable to formally challenge their confinement. Virginian Isaac Handy was arrested in July 1863 during a trip to Delaware, accused of making seditious remarks against the Union.  Upon being removed to Fort Delaware, Handy learned that like hundreds of others, he would be held indefinitely without trial: “I was immediately informed that this man would show me my quarters. I asked if there would be no trial — to which he replied no; stating that the charges had been sworn to & that he had orders for my imprisonment. After making a few explanations about the circumstances of conversations for which I supposed I was under arrest, I soon found that it would be perfectly useless to expect anything but imprisonment & was resigning myself to my fate, with the simple remark that I thought it very strange that the commitment should be made in so summary a manner & without investigation of the charges. Can you say sir upon oath, enquired the Gen’l, that you have never uttered words detrimental to the interests of the Government. I told him at once that I could not do so; to which he replied, there that settles the question, & after some words about the leniency of the Government, he directed the Sergeant in regard to the place of my confinement.”

“Prisoners of War. Ft. Delaware May 1864.” 
Modern copy of albumen print photograph
Handy Family Papers

Abraham Lincoln (1809-1865)
Navy Department, United States
General Order No. 4. By the President of the United States of America. A Proclamation.
January 14, 1863

Lincoln’s order of January 1st worked its way through the military chain of command as illustrated here by this terse order to the Navy Department.

Francis Lieber (1800-1872)
A Code for the Government of Armies in the Field, as Authorized by the Laws and Usages of War on Land. Printed as Manuscript for the Board Appointed by the Secretary of War [Special orders, no. 399] “To Propose Amendments or Changes in the Rules and Articles of War, and a Code of Regulations for the Government of Armies in the Field, as Authorized by the Laws and Usages of War.”
New York(?): United States War Department, [1863]

Often referred to as the Lieber Code, Lincoln’s General Orders No. 100 had been prepared by jurist and political philosopher Francis Lieber, and was promulgated by the President in April 1863. It represents the first codification of the laws and customs of war in the United States and regulated the behavior of Union soldiers.

Adalbert J. Volck (1828-1912)
Writing The Emancipation Proclamation.
Confederate Civil War Etchings.
Philadelphia: Porter & Coates, ca. 1882 from plates engraved in Baltimore ca.1864

Baltimore artist Adalbert Volck clandestinely caricatured the Union and its war efforts in a series of provocative prints. Here, he depicts Lincoln composing the Emancipation Proclamation. On the wall are scenes from revolutionary era Saint-Domingue and a portrait of the anti-slavery radical John Brown. Volck uses complex symbolism to suggest the illegitimacy of the President’s Proclamation, but none is more powerful than Lincoln’s foot holding down the Constitution.