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._
[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, 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.
If horses and fodder, fences and timber, or houses and land, were
taken for the use of the Army, the owner was not entitled 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 assisted 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 constitutional
rights. The consequence was that friendships 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 fashioning
and making garments strangely various in shape and kind--some for
Northern prisons where captives were confined, some for destitute
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
assembled 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
bloody 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.