Baltimore and the Nineteenth of April, 1861: A Study of the War

"The tone of the whole Northern press and the mass of the population was violent in the extreme. Incursions upon our city were daily threatened, not only by troops in the service of the Federal Government, but by the vilest and most reckless desperadoes, acting independently, and, as they threatened, in despite of the Government, backed by well-known influential citizens, and sworn to the commission of all kinds of excesses. In short, every possible effort was made to alarm this community. In this condition of things the Board felt it to be their solemn duty to continue the organization which had already been commenced, for the purpose of assuring the people of Baltimore that no effort would be spared to protect all within its borders, to the extent of their ability. All the means employed were devoted to this end, and with no view of producing a collision with the General Government, which the Board were particularly anxious to avoid, and an arrangement was happily effected by the Mayor with the General Government that no troops should be passed through the city. As an evidence of the determination of the Board to prevent such collision, a sufficient guard was sent in the neighborhood of Fort McHenry several nights to arrest all parties who might be engaged in a threatened attack upon it, and a steam-tug was employed, properly manned, to prevent any hostile demonstration upon the receiving-ship Alleghany, lying at anchor in the harbor, of all which the United States officers in command were duly notified.

"Property of various descriptions belonging to the Government and individuals was taken possession of by the police force with a view to its security. The best care has been taken of it. Every effort has been made to discover the rightful owners, and a portion of it has already been forwarded to order. Arrangements have been made with the Government agents satisfactory to them for the portion belonging to it, and the balance is held subject to the order of its owners.

"Amidst all the excitement and confusion which has since prevailed, the Board take great pleasure in stating that the good order and peace of the city have been preserved to an extraordinary degree. Indeed, to judge from the accounts given by the press of other cities of what has been the state of things in their own communities, Baltimore, during the whole of the past week and up to this date, will compare favorably, as to the protection which persons and property have enjoyed, with any other large city in the United States."

Much has been said in regard to the suppression of the national flag in Baltimore during the disturbances, and it is proper that the facts should here be stated.

General Robinson, in his description of the occurrences which took place after the 19th of April, says that meetings were held under the flag of the State of Maryland, at which the speeches were inflammatory secession harangues, and that the national flag disappeared, and no man dared to display it. Whether or not this statement exactly represents the condition of things, it at least approximates it, and on the 26th of April, an order was issued by the board of police reciting that the peace of the city was likely to be disturbed by the display of various flags, and directing that no flag of any description should be raised or carried through the streets. On April 29th, the city council passed an ordinance, signed by the Mayor, authorizing him, when in his opinion the peace of the city required it, to prohibit by proclamation for a limited period, to be designated by him, the public display of all flags or banners in the city of Baltimore, except on buildings or vessels occupied or employed by the Government of the United States. On the same day I, in pursuance of the ordinance, issued a proclamation prohibiting the display of flags for thirty days, with the exception stated in the ordinance, and on the 10th of May, when I was satisfied that all danger was over, I issued a proclamation removing the prohibition. The only violation of the order which came under my notice during the period of suppression was on the part of a military company which had the Maryland flag flying at its headquarters, on Lexington street near the City Hall. On my directing this flag to be taken down, the request was at once complied with.

General Robinson says that "the first demonstration of returning loyalty was on the 28th day of April, when a sailing vessel came down the river crowded with men, and covered from stem to stern with national flags. She sailed past the fort, cheered and saluted our flag, which was dipped in return, after which she returned to the city." He then adds: "The tide had turned. Union men avowed themselves, the stars and stripes were again unfurled, and order was restored. Although after this time arrests were made of persons conspicuous for disloyalty, the return to reason was almost as sudden as the outbreak of rebellion. The railroads were repaired, trains ran regularly, and troops poured into Washington without hindrance or opposition of any sort. Thousands of men volunteered for the Union Army. Four regiments of Maryland troops afterwards served with me, and constituted the Third Brigade of my division. They fought gallantly the battles of the Union, and no braver soldiers ever marched under the flag."

The tide indeed soon turned, but not quite so rapidly as this statement seems to indicate. On the 5th of May, General Butler, with two regiments and a battery of artillery, came from Washington and took possession of the Relay House on the Baltimore and Ohio Railroad at the junction of the Washington branch, about seven miles from Baltimore, and fortified the position. One of his first proceedings was highly characteristic. He issued a special order declaring that he had found well-authenticated evidence that one of his soldiers had "been poisoned by means of strychnine administered in the food brought into the camp," and he warned the people of Maryland that he could "put an agent, with a word, into every household armed with this terrible weapon." This statement sent a thrill of horror through the North, and the accompanying threat of course excited the indignation and disgust of our people. The case was carefully examined by the city physician, and it turned out that the man had an ordinary attack of cholera morbus, the consequence of imprudent diet and camp life, but the General never thought proper to correct the slander.

On the evening of the 11th of May, General Butler being then at Annapolis, I received a note from Edward G. Parker, his aide-de-camp, stating that he had received intimations from many sources that an attack by the Baltimore roughs was intended that night; that these rumors had been confirmed by a gentleman from Baltimore, who gave his name and residence; that the attack would be made by more than a thousand men, every one sworn to kill a man; that they were coming in wagons, on horses and on foot, and that a considerable force from the west, probably the Point of Rocks in Maryland, was also expected, and I was requested to guard every avenue from the city, so as to prevent the Baltimore rioters from leaving town.

Out of respect to the source from which the application came, I immediately sent for the marshal of police, and requested him to throw out bodies of his men so as to guard every avenue leading to the Relay House. No enemy, however, appeared. The threatened attack proved to be merely a groundless alarm, as I knew from the beginning it was.

On the night of the 13th of May, when the city was as peaceful as it is to-day, General Butler, in the midst of a thunderstorm of unusual violence, entered Baltimore and took possession of Federal Hill, which overlooks the harbor and commands the city, and which he immediately proceeded to fortify. There was nobody to oppose him, and nobody thought of doing so; but, for this exploit, which he regarded as the capture of Baltimore, he was made a Major-General. He immediately issued a proclamation, as if he were in a conquered city subject to military law.

Meantime, on the 26th of April, the General Assembly of the State had met at Frederick. "As soon as the General Assembly met" (Scharf's History of Maryland, Vol. III, p. 444), "the Hon. James M. Mason, formerly United States Senator from Virginia, waited on it as commissioner from that State, authorized to negotiate a treaty of alliance offensive and defensive with Maryland on her behalf." This proposition met with no acceptance. On the 27th, the Senate, by a unanimous vote, issued an address for the purpose of allaying the apprehensions of the people, declaring that it had no constitutional authority to take any action leading to secession, and on the next day the House of Delegates, by a vote of 53 to 12, made a similar declaration. Early in May, the General Assembly, by a vote in the House of 43 to 12, and in the Senate of 11 to 3, passed a series of resolutions proclaiming its position in the existing crisis.

The resolutions protested against the war as unjust and unconstitutional, and announced a determination to take no part in its prosecution. They expressed a desire for the immediate recognition of the Confederate States; and while they protested against the military occupation of the State, and the arbitrary restrictions and illegalities with which it was attended, they called on all good citizens to abstain from violent and unlawful interference with the troops, and patiently and peacefully to leave to time and reason the ultimate and certain re-establishment and vindication of the right; and they declared it to be at that time inexpedient to call a Sovereign Convention of the State, or to take any measures for the immediate organization or arming of the militia.

After it became plain that no movement would be made towards secession, a large number of young men, including not a few of the flower of the State, and representing largely the more wealthy and prominent families, escaped across the border and entered the ranks of the Confederacy. The number has been estimated at as many as twenty thousand, but this, perhaps, is too large a figure, and there are no means of ascertaining the truth. The muster-rolls have perished with the Confederacy. The great body of those who sympathized with the South had no disposition to take arms against the Union so long as Maryland remained a member of it. This was subsequently proved by their failure to enlist in the Southern armies on the different occasions in 1862, 1863 and 1864 when they crossed the Potomac and transferred the seat of war to Maryland and Pennsylvania, under the command twice of General Lee and once of General Early.

The first of these campaigns ended in the bloody battle of Antietam. The Maryland men, as a tribute to their good conduct, were placed at the head of the army, and crossed the river with enthusiasm, the band playing and the soldiers singing "My Maryland." Great was their disappointment that the recruits did not even suffice to fill the gaps in their shattered ranks.

CHAPTER VII

CHIEF JUSTICE TANEY AND THE WRIT OF HABEAS CORPUS. – A UNION CONVENTION. – CONSEQUENCE OF THE SUSPENSION OF THE WRIT. – INCIDENTS OF THE WAR. – THE WOMEN IN THE WAR.

The suspension of the writ of habeas corpus, by order of the President, without the sanction of an Act of Congress, which had not then been given, was one of the memorable events of the war.

On the 4th of May, 1861, Judge Giles, of the United States District Court of Maryland, issued a writ of habeas corpus to Major Morris, then in command of Fort McHenry, to discharge a soldier who was under age. Major Morris refused to obey the writ.

On the 14th of May the General Assembly adjourned, and Mr. Ross Winans, of Baltimore, a member of the House of Delegates, while returning to his home, was arrested by General Butler on a charge of high treason. He was conveyed to Annapolis, and subsequently to Fort McHenry, and was soon afterwards released.

A case of the highest importance next followed. On the 25th of May, Mr. John Merryman, of Baltimore County, was arrested by order of General Keim, of Pennsylvania, and confined in Fort McHenry. The next day (Sunday, May 26th) his counsel, Messrs. George M. Gill and George H. Williams, presented a petition for the writ of habeas corpus to Chief Justice Taney, who issued the writ immediately, directed to General Cadwallader, then in command in Maryland, ordering him to produce the body of Merryman in court on the following day (Monday, May 27th). On that day Colonel Lee, his aide-de-camp, came into court with a letter from General Cadwallader, directed to the Chief Justice, stating that Mr. Merryman had been arrested on charges of high treason, and that he (the General) was authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety. Judge Taney asked Colonel Lee if he had brought with him the body of John Merryman. Colonel Lee replied that he had no instructions except to deliver the letter.

Chief Justice.– The commanding officer, then, declines to obey the writ?

Colonel Lee.– After making that communication my duty is ended, and I have no further power (rising and retiring).

Chief Justice.– The Court orders an attachment to issue against George Cadwallader for disobedience to the high writ of the Court, returnable at twelve o'clock to-morrow.

The order was accordingly issued as directed.

A startling issue was thus presented. The venerable Chief Justice had come from Washington to Baltimore for the purpose of issuing a writ of habeas corpus, and the President had thereupon authorized the commander of the fort to hold the prisoner and disregard the writ.

A more important occasion could hardly have occurred. Where did the President of the United States acquire such a power? Was it true that a citizen held his liberty subject to the arbitrary will of any man? In what part of the Constitution could such a power be found? Why had it never been discovered before? What precedent existed for such an act?

Judge Taney was greatly venerated in Baltimore, where he had formerly lived. The case created a profound sensation.

On the next morning the Chief Justice, leaning on the arm of his grandson, walked slowly through the crowd which had gathered in front of the court-house, and the crowd silently and with lifted hats opened the way for him to pass.

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 manuscript 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 Constitution 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 Constitution 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 constitutional 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 God 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 passed, 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 Constitution 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 noble 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 gratitude of every lover of constitutional liberty so long as our institutions 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 Washington, 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 constitutional 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 Constitution of the United States, will be vindicated at all times and under all circumstances 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 constitutional 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 Constitution, 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 Constitution 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 Constitution 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.

On May 25, 1862, Judge Carmichael, an honored magistrate, while sitting in his court in Easton, was, by the provost marshal and his deputies, assisted 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.