Baltimore and The Nineteenth of April, 1861 Part 7

Roger B. Taney was one of the most self-controlled and courageous of judges. He took his seat with his usual quiet dignity. He called the case of John Merryman and asked the marshal for his return to the writ of attachment. The return stated that he had gone to Fort McHenry for the purpose of serving the writ on General Cadwallader; that he had sent in his name at the outer gate; that the messenger had returned with the reply that there was no answer to send; that he was not permitted to enter the gate, and, therefore, could not serve the writ, as he was commanded to do.

The Chief Justice then read from his ma.n.u.script as follows:

I ordered the attachment of yesterday because upon the face of the return the detention of the prisoner was unlawful upon two grounds:

1st. The President, under the Const.i.tution and laws of the United States, cannot suspend the privilege of the writ of _habeas corpus_, nor authorize any military officer to do so.

2d. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

I forbore yesterday to state the provisions of the Const.i.tution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the clerk of this court, in the course of this week.

The Chief Justice then orally remarked:

In relation to the present return, it is proper to say that of course the marshal has legally the power to summon the _posse comitatus_ to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in the discharge of that duty by a force notoriously superior to the _posse_, and, this being the case, such a proceeding can result in no good, and is useless. I will not, therefore, require the marshal to perform this duty. If, however, General Cadwallader were before me, I should impose on him the punishment which it is my province to inflict--that of fine and imprisonment. I shall merely say, to-day, that I shall reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall direct the clerk to forward them with these proceedings to the President, so that he may discharge his const.i.tutional duty "to take care that the laws are faithfully executed."

It is due to my readers that they should have an opportunity of reading this opinion, and it is accordingly inserted in an Appendix.

After the court had adjourned, I went up to the bench and thanked Judge Taney for thus upholding, in its integrity, the writ of _habeas corpus_. He replied, "Mr. Brown, I am an old man, a very old man" (he had completed his eighty-fourth year), "but perhaps I was preserved for this occasion." I replied, "Sir, I thank G.o.d that you were."

He then told me that he knew that his own imprisonment had been a matter of consultation, but that the danger had pa.s.sed, and he warned me, from information he had received, that my time would come.

The charges against Merryman were discovered to be unfounded and he was soon discharged by military authority.

The nation is now tired of war, and rests in the enjoyment of a harmony which has not been equalled since the days of James Monroe.

When Judge Taney rendered this decision the Const.i.tution was only seventy-two years old--twelve years younger than himself. It is now less than one hundred years old--a short period in a nation's life--and yet during that period there have been serious commotions--two foreign wars and a civil war. In the future, as in the past, offenses will come, and hostile parties and factions will arise, and the men who wield power will, if they dare, shut up in fort or prison, without reach of relief, those whom they regard as dangerous enemies. When that period arrives, then will those who wisely love their country thank the great Chief Justice, as I did, for his unflinching defense of _habeas corpus_, the supreme writ of right, and the corner-stone of personal liberty among all English-speaking people.

In the Life of Benjamin R. Curtis, Vol. I, p. 240, his biographer says, speaking of Chief Justice Taney, with reference to the case of Merryman, "If he had never done anything else that was high, heroic and important, his n.o.ble vindication of the writ of _habeas corpus_ and the dignity and authority of his office against a rash minister of State, who, in the pride of a fancied executive power, came near to the commission of a great crime, will command the admiration and grat.i.tude of every lover of const.i.tutional liberty so long as our inst.i.tutions shall endure." The crime referred to was the intended imprisonment of the Chief Justice.

Although this crime was not committed, a criminal precedent had been set and was ruthlessly followed. "My lord," said Mr. Seward to Lord Lyons, "I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?" When such a power is wielded by any man, or set of men, nothing is left to protect the liberty of the citizen.

On the 24th of May, a Union Convention, consisting of fourteen counties of the State, including the city of Baltimore, and leaving eight unrepresented, met in the city. The counties not represented were Was.h.i.+ngton, Montgomery, Prince George, Charles, St. Mary's, Dorchester, Somerset, and Worcester. The number of members does not appear to have been large, but it included the names of gentlemen well known and highly respected. The Convention adopted Resolutions which declared, among other things, that the revolution on the part of eleven States was without excuse or palliation, and that the redress of actual or supposed wrongs in connection with the slavery question formed no part of their views or purposes; that the people of this State were unalterably determined to defend the Government of the United States, and would support the Government in all legal and const.i.tutional measures which might be necessary to resist the revolutionists; that the intimations made by the majority of the Legislature at its late session--that the people were humiliated or subjugated by the action of the Government--were gratuitous insults to that people; that the dignity of the State of Maryland, involved in a precise, persistent and effective recognition of all her rights, privileges and immunities under the Const.i.tution of the United States, will be vindicated at all times and under all circ.u.mstances by those of her sons who are sincere in their fealty to her and the Government of the Union of which she is part, and to popular const.i.tutional liberty; that while they concurred with the present Executive of the United States that the unity and integrity of the National Union must be preserved, their view of the nature and true principles of the Const.i.tution, of the powers which it confers, and of the duties which it enjoins, and the rights which it secures, as it relates to and affects the question of slavery in many of the essential bearings, is directly opposed to the views of the Executive; that they are fixed in their conviction, amongst others, that a just comprehension of the true principles of the Const.i.tution forbid utterly the formation of political parties on the foundation of the slavery question, and that the Union men will oppose to the utmost of their ability all attempts of the Federal Executive to commingle in any manner its peculiar views on the slavery question with that of maintaining the just powers of the Government.

These resolutions are important as showing the stand taken by a large portion of the Union party of the State in regard to any interference, as the result of the war or otherwise, by the General Government with the provisions of the Const.i.tution with regard to slavery.

After the writ of _habeas corpus_ had been thus suspended, martial law, as a consequence, rapidly became all-powerful, and it continued in force during the war. That law is by Judge Black, in his argument before the Supreme Court in the case of _ex parte_ Milligan,[14] shown to be simply the rule of irresponsible force. Law becomes helpless before it. _Inter arma silent leges._

[Footnote 14: 4 Wallace Sup. Court R. 2.]

On May 25, 1862, Judge Carmichael, an honored magistrate, while sitting in his court in Easton, was, by the provost marshal and his deputies, a.s.sisted by a body of military sent from Baltimore, beaten, and dragged bleeding from the bench, and then imprisoned, because he had on a previous occasion delivered a charge to the grand jury directing them to inquire into certain illegal acts and to indict the offenders. His imprisonment in Forts McHenry, Lafayette, and Delaware, lasted more than six months. On December 4, 1862, he was unconditionally released, no trial having been granted him, nor any charges made against him. On June 28, 1862, Judge Bartol, of the Court of Appeals of Maryland, was arrested and confined in Fort McHenry. He was released after a few days, without any charge being preferred against him, or any explanation given.

Spies and informers abounded. A rigid supervision was established.

Disloyalty, so called, of any kind was a punishable offense. Rebel colors, the red and white, were prohibited. They were not allowed to appear in shop-windows or on children's garments, or anywhere that might offend the Union sentiment. If a newspaper promulgated disloyal sentiments, the paper was suppressed and the editor imprisoned. If a clergyman was disloyal in prayer or sermon, or if he failed to utter a prescribed prayer, he was liable to be treated in the same manner, and was sometimes so treated. A learned and eloquent Lutheran clergyman came to me for advice because he had been summoned before the provost marshal for saying that a nation which incurred a heavy debt in the prosecution of war laid violent hands on the harvests of the future; but his offense was condoned, because it appeared that he had referred to the "Thirty Years' War" and had made no direct reference to the debt of the United States, and perhaps for a better reason--that he had strong Republican friends among his congregation.

If horses and fodder, fences and timber, or houses and land, were taken for the use of the Army, the owner was not ent.i.tled to compensation unless he could prove that he was a loyal man; and the proof was required to be furnished through some well-known loyal person, who, of course, was usually paid for his services. Very soon no one was allowed to vote unless he was a loyal man, and soldiers at the polls a.s.sisted in settling the question of loyalty.

Nearly all who approved of the war regarded these things as an inevitable military necessity; but those who disapproved deeply resented them as unwarrantable violations of sacred const.i.tutional rights. The consequence was that friends.h.i.+ps were dissolved, the ties of blood severed, and an invisible but well-understood line divided the people. The bitterness and even the common mention of these acts have long since ceased, but the tradition survives and still continues to be a factor, silent, but not without influence, in the politics of the State.

History repeats itself. There were deeds done on both sides which bring to mind the wars of England and Scotland and the border strife between those countries. There were flittings to and fro, and adventures and hairbreadth escapes innumerable. Soldiers returned to visit their homes at the risk of their necks. Contraband of every description, and letters and newspapers, found their way across the border. The military lines were long and tortuous, and vulnerable points were not hard to find, and trusty carriers were ready to go anywhere for the love of adventure or the love of gain.

The women were as deeply interested as the men, and were less apprehensive of personal consequences. In different parts of the city, not excepting its stateliest square, where stands the marble column from which the father of his country looked down, sadly as it were, on a divided people, there might have been found, by the initiated, groups of women who, with swift and skillful fingers, were fas.h.i.+oning and making garments strangely various in shape and kind--some for Northern prisons where captives were confined, some for dest.i.tute homes beyond the Southern border, in which only women and children were left, and some for Southern camps where ragged soldiers were waiting to be clad. The work was carried on not without its risks; but little cared the workers for that. Perhaps the sensation of danger itself, and a spirit of resistance to an authority which they refused to recognize, gave zest to their toil; nor did they always think it necessary to inform the good man of the house in which they were a.s.sembled either of their presence or of what was going on beneath his roof.

The women who stood by the cause of the Union were not compelled to hide their charitable deeds from the light of day. No need for them to feed and clothe the soldiers of the Union, whose wants were amply supplied by a bountiful Government; but with untiring zeal they visited the military hospitals on missions of mercy, and when the b.l.o.o.d.y fields of Antietam and Gettysburg were fought, both they and their Southern sisters hastened, though not with a common purpose, to the aid of the wounded and dying, the victims of civil strife and children of a common country.

CHAPTER VIII.

GENERAL BANKS IN COMMAND. -- MARSHAL KANE ARRESTED. -- POLICE COMMISSIONERS SUPERSEDED. -- RESOLUTIONS Pa.s.sED BY THE GENERAL a.s.sEMBLY. -- POLICE COMMISSIONERS ARRESTED. -- MEMORIAL ADDRESSED BY THE MAYOR AND CITY COUNCIL TO CONGRESS. -- GENERAL DIX IN COMMAND. -- ARREST OF MEMBERS OF THE GENERAL a.s.sEMBLY, THE MAYOR AND OTHERS. -- RELEASE OF PRISONERS. -- COLONEL DIMICK.

On the 10th of June, 1861, Major-General Nathaniel P. Banks, of Ma.s.sachusetts, was appointed in the place of General Cadwallader to the command of the Department of Annapolis, with headquarters at Baltimore. On the 27th of June, General Banks arrested Marshal Kane and confined him in Fort McHenry. He then issued a proclamation announcing that he had superseded Marshal Kane and the commissioners of police, and that he had appointed Colonel John R. Kenly, of the First Regiment of Maryland Volunteers, provost marshal, with the aid and a.s.sistance of the subordinate officers of the police department.

The police commissioners, including the mayor, offered no resistance, but adopted and published a resolution declaring that, in the opinion of the board, the forcible suspension of their functions suspended at the same time the active operation of the police law and put the officers and men off duty for the present, leaving them subject, however, to the rules and regulations of the service as to their personal conduct and deportment, and to the orders which the board might see fit thereafter to issue, when the present illegal suspension of their functions should be removed.

The Legislature of Maryland, at its adjourned session on the 22d of June, pa.s.sed a series of resolutions declaring that the unconst.i.tutional and arbitrary proceedings of the Federal Executive had not been confined to the violation of the personal rights and liberties of the citizens of Maryland, but had been so extended that the property of no man was safe, the sanct.i.ty of no dwelling was respected, and that the sacredness of private correspondence no longer existed; that the Senate and House of Delegates of Maryland felt it due to her dignity and independence that history should not record the overthrow of public freedom for an instant within her borders, without recording likewise the indignant expression of her resentment and remonstrance, and they accordingly protested against the oppressive and tyrannical a.s.sertion and exercise of military jurisdiction within the limits of Maryland over the persons and property of her citizens by the Government of the United States, and solemnly declared the same to be subversive of the most sacred guarantees of the Const.i.tution, and in flagrant violation of the fundamental and most cherished principles of American free government.

On the first of July, the police commissioners were arrested and imprisoned by order of General Banks, on the ground, as he alleged in a proclamation, that the commissioners had refused to obey his decrees, or to recognize his appointees, and that they continued to hold the police force for some purpose not known to the Government.

General Banks does not say what authority he had to make decrees, or what the decrees were which the commissioners had refused to obey; and as on the 27th of June he had imprisoned the marshal of police, and had put a provost marshal in his place, retaining only the subordinate officers of the police department, and had appointed instead of the men another body of police, all under the control of the provost marshal; and as the commissioners had no right to discharge the police force established by a law of the State, and were left with no duties in relation to the police which they could perform, it is very plain that, whatever motive General Banks may have had for the arrest and imprisonment of the commissioners, it is not stated in his proclamation.

One of the commissioners, Charles D. Hinks, was soon released in consequence of failing health.

On the day of the arrest of the police commissioners the city was occupied by troops, who in large detachments, infantry and artillery, took up positions in Monument Square, Exchange Place, at Camden-street Station and other points, and they mounted guard and bivouacked in the streets for more than a week.

On July 18th, the police commissioners presented to Congress a memorial in which they protested very vigorously against their unlawful arrest and imprisonment.

On the 23d day of July, 1861, the mayor and city council of Baltimore addressed a memorial to the Senate and House of Representatives of the United States, in which, after describing the condition of affairs in Baltimore, they respectfully, yet most earnestly, demanded, as matter of right, that their city might be governed according to the Const.i.tution and laws of the United States and of the State of Maryland, that the citizens might be secure in their persons, houses, papers and effects against unreasonable searches and seizures; that they should not be deprived of life, liberty or property without due process of law; that the military should render obedience to the civil authority; that the munic.i.p.al laws should be respected, the officers released from imprisonment and restored to the lawful exercise of their functions, and that the police government established by law should be no longer impeded by armed force to the injury of peace and order. It is perhaps needless to add that the memorial met with no favor.

On the 7th of August, 1861, the Legislature of the State, in a series of resolutions, denounced these proceedings in all their parts, p.r.o.nouncing them, so far as they affected individuals, a gross and unconst.i.tutional abuse of power which nothing could palliate or excuse, and, in their bearing upon the authority and const.i.tutional powers and privileges of the State herself, a revolutionary subversion of the Federal compact.

The Legislature then adjourned, to meet on the 17th of September.

On the 24th of July, 1861, General Dix had been placed in command of the Department, with his headquarters in Baltimore. On that day he wrote from Fort McHenry to the a.s.sistant Adjutant-General for re-enforcement of the troops under his command. He said that there ought to be ten thousand men at Baltimore and Annapolis, and that he could not venture to respond for the quietude of the Department with a smaller number. At Fort McHenry, as told by his biographer, he exhibited to some ladies of secession proclivities an immense columbiad, and informed them that it was pointed to Monument Square, and if there was an uprising that this piece would be the first he would fire. But the guns of Fort McHenry were not sufficient. He built on the east of the city a very strong work, which he called Fort Marshall, and he strengthened the earthwork on Federal Hill, in the southern part, so that the city lay under the guns of three powerful forts, with several smaller ones. Not satisfied with this, on the 15th of September, 1862, General Dix, after he had been transferred to another department, wrote to Major-General Halleck, then Commander-in-Chief, advising that the ground on which the earthwork on Federal Hill had been erected should be purchased at a cost of one hundred thousand dollars, and that it should be permanently fortified at an additional expense of $250,000. He was of opinion that although the great body of the people were, as he described them, eminently distinguished for their moral virtues, Baltimore had always contained a ma.s.s of inflammable material, which would ignite on the slightest provocation. He added that "Fort Federal Hill completely commanded the city, and is capable, from its proximity to the princ.i.p.al business quarters, of a.s.sailing any one without injury to the others. The hill seems to have been placed there by Nature as a site for a permanent citadel, and I beg to suggest whether a neglect to appropriate it to its obvious design would not be an unpardonable dereliction of duty."

These views were perhaps extreme even for a major-general commanding in Baltimore, especially as by this time the disorderly element which infests all cities had gone over to the stronger side, and was engaged in the pious work of persecuting rebels. General Halleck, even after this solemn warning, left Federal Hill to the protection of its earthwork.

The opinion which General Dix had of Baltimore extended, though in a less degree, to a large portion of the State, and was shared, in part at least, not only by the other military commanders, but by the Government at Was.h.i.+ngton.

On the 11th of September, 1861, Simon Cameron, Secretary of War, wrote the following letter to Major-General Banks, who was at this time in command of a division in Maryland:

"WAR DEPARTMENT, _September 11, 1861_.

"_General._--The pa.s.sage of any act of secession by the Legislature of Maryland must be prevented. If necessary, all or any part of the members must be arrested. Exercise your own judgment as to the time and manner, but do the work effectively."

On the 12th of September, Major-General McClellan, Commander-in-Chief of the Army of the Potomac, wrote a confidential letter to General Banks reciting that "after full consultation with the President, Secretary of State, War, etc., it has been decided to effect the operation proposed for the 17th." The 17th was the day fixed for the meeting of the General a.s.sembly, and the operation to be performed was the arrest of some thirty members of that body, and other persons besides. Arrangements had been made to have a Government steamer at Annapolis to receive the prisoners and convey them to their destination. The plan was to be arranged with General Dix and Governor Seward, and the letter closes with leaving this exceedingly important affair to the tact and discretion of General Banks, and impressing on him the absolute necessity of secrecy and success.

Accordingly, a number of the most prominent members of the Legislature, myself, as mayor of Baltimore, and editors of newspapers, and other citizens, were arrested at midnight. I was arrested at my country home, near the Relay House on the Baltimore and Ohio Railroad, by four policemen and a guard of soldiers. The soldiers were placed in both front and rear of the house, while the police rapped violently on the front door. I had gone to bed, but was still awake, for I had some apprehension of danger. I immediately arose, and opening my bed-room window, asked the intruders what they wanted. They replied that they wanted Mayor Brown. I asked who wanted him, and they answered, the Government of the United States. I then inquired for their warrant, but they had none. After a short time spent in preparation I took leave of my wife and children, and closely guarded, walked down the high hill on which the house stands to the foot, where a carriage was waiting for me. The soldiers went no farther, but I was driven in charge of the police seven miles to Baltimore and through the city to Fort McHenry, where to my surprise I found myself a fellow-prisoner in a company of friends and well-known citizens. We were imprisoned for one night in Fort McHenry, next in Fort Monroe for about two weeks, next in Fort Lafayette for about six weeks, and finally in Fort Warren. Henry May, member of Congress from Baltimore, was arrested at the same time, but was soon released.