CHAPTER IX.

A PERSONAL CHAPTER.

I have now completed my task; but perhaps it will be expected that I

should clearly define my own position. I have no objection to do so.

Both from feeling and on principle I had always been opposed to

slavery--the result in part of the teaching and example of my parents,

and confirmed by my own reading and observation. In early manhood I

became prominent in defending the rights of the free colored people of

Maryland. In the year 1846 I was associated with a small number of

persons, of whom the Rev. William F. Brand, author of the "Life of

Bishop Whittingham," and myself, are the only survivors. The other

members of the association were Dr. Richard S. Steuart, for many years

President of the Maryland Hospital for the Insane, and himself a

slaveholder; Galloway Cheston, a merchant and afterwards President of

the Board of Trustees of the Johns Hopkins University; Frederick W.

Brune, my brother-in-law and law-partner; and Ramsay McHenry, planter.

We were preparing to initiate a movement tending to a gradual

emancipation within the State, but the growing hostility between the

North and the South rendered the plan wholly impracticable, and it was

abandoned.

My opinions, however, did not lead me into sympathy with the abolition

party. I knew that slavery had existed almost everywhere in the world,

and still existed in some places, and that, whatever might be its

character elsewhere, it was not in the Southern States "the sum of all

villainy." On the contrary, it had assisted materially in the

development of the race. Nowhere else, I believe, had negro slaves

been so well treated, on the whole, and had advanced so far in

civilization. They had learned the necessity, as well as the habit, of

labor; the importance--to some extent at least--of thrift; the

essential distinctions between right and wrong, and the inevitable

difference to the individual between right-doing and wrong-doing; the

duty of obedience to law; and--not least--some conception, dim though

it might be, of the inspiring teachings of the Christian religion.

They had learned also to cherish a feeling of respect and good will

towards the best portion of the white race, to whom they looked up,

and whom they imitated.

I refused to enlist in a crusade against slavery, not only on

constitutional grounds, but for other reasons. If the slaves were

freed and clothed with the right of suffrage, they would be incapable

of using it properly. If the suffrage were withheld, they would be

subjected to the oppression of the white race without the protection

afforded by their masters. Thus I could see no prospect of maintaining

harmony without a disastrous change in our form of government such as

prevailed after the war, in what is called the period of

reconstruction. If there were entire equality, and an intermingling of

the two races, it would not, as it seemed to me, be for the benefit of

either. I knew how strong are race prejudices, especially when

stimulated by competition and interest; how cruelly the foreigners, as

they were called, had been treated by the people in California, and

the Indians by our people everywhere; and how, in my own city,

citizens were for years ruthlessly deprived by the Know-Nothing party

of the right of suffrage, some because they were of foreign birth,

and some because they were Catholics. The problem of slavery was to me

a Gordian knot which I knew not how to untie, and which I dared not

attempt to cut with the sword. Such a severance involved the horrors

of civil war, with the wickedness and demoralization which were sure

to follow.

I was deeply attached to the Union from a feeling imbibed in early

childhood and constantly strengthened by knowledge and personal

experience. I did not believe in secession as a constitutional right,

and in Maryland there was no sufficient ground for revolution. It was

clearly for her interest to remain in the Union and to free her

slaves. An attempt to secede or to revolt would have been an act of

folly which I deprecated, although I did believe that she, in common

with the rest of the South, had constitutional rights in regard to

slavery which the North was not willing to respect.

It was my opinion that the Confederacy would prove to be a rope of

sand. I thought that the seceding States should have been allowed to

depart in peace, as General Scott advised, and I believed that

afterwards the necessities of the situation and their own interest

would induce them to return, severally, perhaps, to the old Union, but

with slavery peacefully abolished; for, in the nature of things, I

knew that slavery could not last forever.

Whether or not my opinions were sound and my hopes well founded, is

now a matter of little importance, even to myself, but they were at

least sincere and were not concealed.

There can be no true union in a Republic unless the parts are held

together by a feeling of common interest, and also of mutual respect.

That there is a common interest no reasonable person can doubt; but

this is not sufficient; and, happily, there is a solid basis for

mutual respect also.

I have already stated the grounds on which, from their point of view,

the Southern people were justified in their revolt, and even in the

midst of the war I recognized what the South is gradually coming to

recognize--that the grounds on which the Northern people waged

war--love of the Union and hatred of slavery--were also entitled to

respect.

I believe that the results achieved--namely, the preservation of the

Union and the abolition of slavery--are worth all they have cost.

And yet I feel that I am living in a different land from that in which

I was born, and under a different Constitution, and that new perils

have arisen sufficient to cause great anxiety. Some of these are the

consequences of the war, and some are due to other causes. But every

generation must encounter its own trials, and should extract benefit

from them if it can. The grave problems growing out of emancipation

seem to have found a solution in an improving education of the whole

people. Perhaps education is the true means of escape from the other

perils to which I have alluded.

Let me state them as they appear to me to exist.

Vast fortunes, which astonish the world, have suddenly been acquired,

very many by methods of more than doubtful honesty, while the fortunes

themselves are so used as to benefit neither the possessors nor the

country.

Republican simplicity has ceased to be a reality, except where it

exists as a survival in rural districts, and is hardly now mentioned

even as a phrase. It has been superseded by republican luxury and

ostentation. The mass of the people, who cannot afford to indulge in

either, are sorely tempted to covet both.

The individual man does not rely, as he formerly did, on his own

strength and manhood. Organization for a common purpose is resorted to

wherever organization is possible. Combinations of capital or of

labor, ruled by a few individuals, bestride the land with immense

power both for good and evil. In these combinations the individual

counts for little, and is but little concerned about his own moral

responsibility.

When De Tocqueville, in 1838, wrote his remarkable book on Democracy

in America, he expressed his surprise to observe how every public

question was submitted to the decision of the people, and that, when

the people had decided, the question was settled. Now politicians care

little about the opinions of the people, because the people care

little about opinions. Bosses have come into existence to ply their

vile trade of office-brokerage. Rings are formed in which the bosses

are masters and the voters their henchmen. Formerly decent people

could not be bought either with money or offices. Political parties

have always some honest foundation, but rings are factions like those

of Rome in her decline, having no foundation but public plunder.

Communism, socialism, and labor strikes have taken the place of

slavery agitation. Many people have come to believe that this is a

paternal Government from which they have a right to ask for favors,

and not a Republic in which all are equal. Hence States, cities,

corporations, individuals, and especially certain favored classes,

have no scruple in getting money somehow or other, directly or

indirectly, out of the purse of the Nation, as if the Nation had

either purse or property which does not belong to the people, for the

benefit of the whole people, without favor or partiality towards any.

In many ways there is a dangerous tendency towards the centralization

of power in the National Government, with little opposition on the

part of the people.

Paper money is held by the Supreme Court to be a lawful substitute for

gold and silver coin, partly on the ground that this is the

prerogative of European governments.[16] This is strange

constitutional doctrine to those who were brought up in the school of

Marshall, Story, and Chancellor Kent.

[Footnote 16: Legal Tender Case, Vol. 110 U. S. Reports, p. 421.]

The administration of cities has grown more and more extravagant and

corrupt, thus leading to the creation of immense debts which oppress

the people and threaten to become unmanageable.

The national Congress, instead of faithfully administering its trust,

has become reckless and wasteful of the public money.

But, notwithstanding all this, I rejoice to believe that there is a

reserve of power in the American people which has never yet failed to

redress great wrongs when they have come to be fully recognized and

understood.

A striking instance of this is to be found in the temperance movement,

which, extreme as it may be in some respects, shows that the

conscience of the entire country is aroused on a subject of vast

difficulty and importance.

And other auspicious signs exist, the chief of which I think are that

a new zeal is manifested in the cause of education; that people of all

creeds come together as they never did before to help in good works;

that an independent press, bent on enlightening, not deceiving, the

people, is making itself heard and respected; and that younger men,

who represent the best hopes and aspirations of the time, are pressing

forward to take the place of the politicians of a different school,

who represent chiefly their own selfish interests, or else a period of

hate and discord which has passed away forever.

These considerations give me hope and confidence in the country as it

exists to-day.

Baltimore is the place of my birth, of my home, and of my affections.

No one could be bound to his native city by ties stronger than mine.

Perhaps, in view of the incidents of the past, as detailed in this

volume, I may be permitted to express to the good people of Baltimore

my sincere and profound gratitude for the generous and unsolicited

confidence which, on different occasions, they have reposed in me, and

for their good will and kind feeling, which have never been withdrawn

during the years, now not a few, which I have spent in their service.

APPENDIX I.

The following account of the alleged conspiracy to assassinate Abraham

Lincoln on his journey to Baltimore is taken from the "Life of Abraham

Lincoln," by Ward H. Lamon, pp. 511-526:

"Whilst Mr. Lincoln, in the midst of his suite and attendants, was

being borne in triumph through the streets of Philadelphia, and a

countless multitude of people were shouting themselves hoarse, and

jostling and crushing each other around his carriage-wheels, Mr.

Felton, the President of the Philadelphia, Wilmington and Baltimore

Railway, was engaged with a private detective discussing the details

of an alleged conspiracy to murder him at Baltimore. Some months

before, Mr. Felton, apprehending danger to the bridges along his line,

had taken this man into his pay and sent him to Baltimore to spy out

and report any plot that might be found for their destruction. Taking

with him a couple of other men and a woman, the detective went about

his business with the zeal which necessarily marks his peculiar

profession. He set up as a stock-broker, under an assumed name, opened

an office, and became a vehement secessionist. His agents were

instructed to act with the duplicity which such men generally use; to

be rabid on the subject of 'Southern Rights'; to suggest all manner of

crimes in vindication of them; and if, by these arts, corresponding

sentiments should be elicited from their victims, the 'job' might be

considered as prospering. Of course they readily found out what

everybody else knew--that Maryland was in a state of great alarm; that

her people were forming military associations, and that Governor Hicks

was doing his utmost to furnish them with arms, on condition that the

arms, in case of need, should be turned against the Federal

Government. Whether they detected any plan to burn bridges or not, the

chief detective does not relate; but it appears that he soon deserted

that inquiry and got, or pretended to get, upon a scent that promised

a heavier reward. Being intensely ambitious to shine in the

professional way, and something of a politician besides, it struck him

that it would be a particularly fine thing to discover a dreadful plot

to assassinate the President-elect, and he discovered it accordingly.

It was easy to get that far; to furnish tangible proofs of an

imaginary conspiracy was a more difficult matter. But Baltimore was

seething with political excitement; numerous strangers from the far

South crowded its hotels and boarding-houses; great numbers of

mechanics and laborers out of employment encumbered its streets; and

everywhere politicians, merchants, mechanics, laborers and loafers

were engaged in heated discussions about the anticipated war, and the

probability of Northern troops being marched through Maryland to

slaughter and pillage beyond the Potomac. It would seem like an easy

thing to beguile a few individuals of this angry and excited multitude

into the expression of some criminal desire; and the opportunity was

not wholly lost, although the limited success of the detective under

such favorable circumstances is absolutely wonderful. He put his

'shadows' upon several persons whom it suited his pleasure to suspect,

and the 'shadows' pursued their work with the keen zest and the cool

treachery of their kind. They reported daily to their chief in

writing, as he reported in turn to his employer. These documents are

neither edifying nor useful: they prove nothing but the baseness of

the vocation which gave them existence. They were furnished to Mr.

Herndon in full, under the impression that partisan feeling had

extinguished in him the love of truth and the obligations of candor,

as it had in many writers who preceded him on the same subject-matter.

They have been carefully and thoroughly read, analyzed, examined and

compared, with an earnest and conscientious desire to discover the

truth, if, perchance, any trace of truth might be in them. The process

of investigation began with a strong bias in favor of the conclusion

at which the detective had arrived. For ten years the author

implicitly believed in the reality of the atrocious plot which these

spies were supposed to have detected and thwarted; and for ten years

he had pleased himself with the reflection that he also had done

something to defeat the bloody purpose of the assassins. It was a

conviction which could scarcely have been overthrown by evidence less

powerful than the detective's weak and contradictory account of his

own case. In that account there is literally nothing to sustain the

accusation, and much to rebut it. It is perfectly manifest that there

was no conspiracy--no conspiracy of a hundred, of fifty, of twenty, of

three--no definite purpose in the heart of even one man to murder Mr.

Lincoln at Baltimore.

"The reports are all in the form of personal narratives, and for the

most relate when the spies went to bed, when they rose, where they

ate, what saloons and brothels they visited, and what blackguards they

met and 'drinked' with. One of them shadowed a loud-mouthed drinking

fellow named Luckett, and another, a poor scapegrace and braggart

named Hilliard. These wretches 'drinked' and talked a great deal, hung

about bars, haunted disreputable houses, were constantly half drunk,

and easily excited to use big and threatening words by the faithless

protestations and cunning management of the spies. Thus Hilliard was

made to say that he thought a man who should act the part of Brutus in

these times would deserve well of his country; and Luckett was induced

to declare that he knew a man who would kill Lincoln. At length the

great arch-conspirator--the Brutus, the Orsini of the New World, to

whom Luckett and Hilliard, the 'national volunteers,' and all such,

were as mere puppets--condescended to reveal himself in the most

obliging and confiding manner. He made no mystery of his cruel and

desperate scheme. He did not guard it as a dangerous secret, or choose

his confidants with the circumspection which political criminals, and

especially assassins, have generally thought proper to observe. Very

many persons knew what he was about, and levied on their friends for

small sums--five, ten and twenty dollars--to further the Captain's

plan. Even Luckett was deep enough in the awful plot to raise money

for it; and when he took one of the spies to a public bar-room and

introduced him to the 'Captain,' the latter sat down and talked it all

over without the slightest reserve. When was there ever before such a

loud-mouthed conspirator, such a trustful and innocent assassin! His

name was Ferrandini, his occupation that of a barber, his place of

business beneath Barnum's Hotel, where the sign of the bloodthirsty

villain still invites the unsuspecting public to come in for a shave.

"'Mr. Luckett,' so the spy relates, 'said that he was not going home

this evening; and if I would meet him at Barr's saloon, on South

street, he would introduce me to Ferrandini. This was unexpected to

me; but I determined to take the chances, and agreed to meet Mr.

Luckett at the place named at 7 P. M. Mr. Luckett left about 2.30 P.

M., and I went to dinner.

"'I was at the office in the afternoon in hopes that Mr. Felton might

call, but he did not; and at 6.15 P. M. I went to supper. After supper

I went to Barr's saloon, and found Mr. Luckett and several other

gentlemen there. He asked me to drink, and introduced me to Captain

Ferrandini and Captain Turner. He eulogized me very highly as a

neighbor of his, and told Ferrandini that I was the gentleman who had

given the twenty-five dollars he (Luckett) had given to Ferrandini.

"'The conversation at once got into politics; and Ferrandini, who is a

fine-looking, intelligent-appearing person, became very excited. He

shows the Italian in, I think, a very marked degree; and, although

excited, yet was cooler than what I had believed was the general

characteristic of Italians. He has lived South for many years, and is

thoroughly imbued with the idea that the South must rule; that they

(Southerners) have been outraged in their rights by the election of

Lincoln, and freely justified resorting to any means to prevent

Lincoln from taking his seat; and, as he spoke, his eyes fairly glared

and glistened, and his whole frame quivered; but he was fully

conscious of all he was doing. He is a man well calculated for

controlling and directing the ardent-minded; he is an enthusiast, and

believes that, to use his own words, "murder of any kind is

justifiable and right to save the rights of the Southern people." In

all his views he was ably seconded by Captain Turner.

"'Captain Turner is an American; but although very much of a

gentleman, and possessing warm Southern feelings, he is not by any

means so dangerous a man as Ferrandini, as his ability for exciting

others is less powerful; but that he is a bold and proud man there is

no doubt, as also that he is entirely under the control of Ferrandini.

In fact, he could not be otherwise, for even I myself felt the

influence of this man's strange power; and, wrong though I knew him to

be, I felt strangely unable to keep my mind balanced against him.

"'Ferrandini said, "Never, never, shall Lincoln be President!" His

life (Ferrandini's) was of no consequence; he was willing to give it

up for Lincoln's; he would sell it for that abolitionist's; and as

Orsini had given his life for Italy, so was he (Ferrandini) ready to

die for his country and the rights of the South; and said Ferrandini,

turning to Captain Turner, "We shall all die together: we shall show

the North that we fear them not. Every man, Captain," said he, "will

on that day prove himself a hero. The first shot fired, the main

traitor (Lincoln) dead, and all Maryland will be with us, and the

South shall be free; and the North must then be ours. Mr. Hutchins,"

said Ferrandini, "if I alone must do it, I shall: Lincoln shall die in

this city."

"'Whilst we were thus talking, we (Mr. Luckett, Turner, Ferrandini and

myself) were alone in one corner of the bar-room, and, while talking,

two strangers had got pretty near us. Mr. Luckett called Ferrandini's

attention to this, and intimated that they were listening; and we went

up to the bar, drinked again at my expense, and again retired to

another part of the room, at Ferrandini's request, to see if the

strangers would again follow us. Whether by accident or design, they

again got near us; but of course we were not talking of any matter of

consequence. Ferrandini said he suspected they were spies, and

suggested that he had to attend a secret meeting, and was apprehensive

that the two strangers might follow him; and, at Mr. Luckett's

request, I remained with him (Luckett) to watch the movements of the

strangers. I assured Ferrandini that if they would attempt to follow

him, we would whip them.

"'Ferrandini and Turner left to attend the meeting, and, anxious as I

was to follow them myself, I was obliged to remain with Mr. Luckett to

watch the strangers, which we did for about fifteen minutes, when Mr.

Luckett said that he should go to a friend's to stay over night, and I

left for my hotel, arriving there at about 9 P. M., and soon retired.'

"It is in a secret communication between hireling spies and paid

informers that these ferocious sentiments are attributed to the poor

knight of the soap-pot. No disinterested person would believe the

story upon such evidence; and it will appear hereafter that even the

detective felt that it was too weak to mention among his strong

points, at that decisive moment when he revealed all he knew to the

President and his friends. It is probably a mere fiction. If it had

had any foundation in fact, we are inclined to believe that the

sprightly and eloquent barber would have dangled at a rope's end long

since. He would hardly have been left to shave and plot in peace,

while the members of the Legislature, the Police Marshal, and numerous

private gentlemen, were locked up in Federal prisons. When Mr. Lincoln

was actually slain, four years later, and the cupidity of the

detectives was excited by enormous rewards, Ferrandini was totally

unmolested. But even if Ferrandini really said all that is here

imputed to him, he did no more than many others around him were doing

at the same time. He drank and talked, and made swelling speeches; but

he never took, nor seriously thought of taking, the first step toward

the frightful tragedy he is said to have contemplated.

"The detectives are cautious not to include in the supposed plot to

murder any person of eminence, power, or influence. Their game is all

of the smaller sort, and, as they conceived, easily taken--witless

vagabonds like Hilliard and Luckett, and a barber, whose calling

indicates his character and associations.[17] They had no fault to

find with the Governor of the State; he was rather a lively trimmer,

to be sure, and very anxious to turn up at last on the winning side;

but it was manifestly impossible that one in such an exalted station

could meditate murder. Yet, if they had pushed their inquiries with an

honest desire to get at the truth, they might have found much stronger

evidence against the Governor than that which they pretend to have

found against the barber. In the Governor's case the evidence is

documentary, written, authentic--over his own hand, clear and

conclusive as pen and ink could make it. As early as the previous

November, Governor Hicks had written the following letter; and,

notwithstanding its treasonable and murderous import, the writer

became conspicuously loyal before spring, and lived to reap splendid

rewards and high honors, under the auspices of the Federal Government,

as the most patriotic and devoted Union man in Maryland. The person to

whom the letter was addressed was equally fortunate; and, instead of

drawing out his comrades in the field to 'kill Lincoln and his men,'

he was sent to Congress by power exerted from Washington at a time

when the administration selected the representatives of Maryland, and

performed all his duties right loyally and acceptably. Shall one be

taken and another left? Shall Hicks go to the Senate and Webster to

Congress, while the poor barber is held to the silly words which he

is alleged to have sputtered out between drinks in a low groggery,

under the blandishments and encouragements of an eager spy, itching

for his reward?

[Footnote 17: Mr. Ferrandini, now in advanced years, still lives in

Baltimore, and declares the charge of conspiracy to be wholly absurd

and fictitious, and those who know him will, I think, believe that he

is an unlikely person to be engaged in such a plot.]

"'STATE OF MARYLAND,

"'EXECUTIVE CHAMBER,

"'ANNAPOLIS, _November 9, 1860_.

"'Hon. E. H. WEBSTER.

"'_My Dear Sir_:--I have pleasure in acknowledging receipt of

your favor introducing a very clever gentleman to my acquaintance

(though a Demo'). I regret to say that we have, at this time, no

arms on hand to distribute, but assure you at the earliest

possible moment your company shall have arms; they have complied

with all required on their part. We have some delay, in

consequence of contracts with Georgia and Alabama ahead of us. We

expect at an early day an additional supply, and of first

received your people shall be furnished. Will they be good men to

send out to kill Lincoln and his men? If not, suppose the arms

would be better sent South.

"'How does late election sit with you? 'Tis too bad. Harford

nothing to reproach herself for.

"'Your obedient servant,

"'THOS. H. HICKS.'

"With the Presidential party was Hon. Norman B. Judd; he was supposed

to exercise unbounded influence over the new President; and with him,

therefore, the detective opened communications. At various places

along the route Mr. Judd was given vague hints of the impending

danger, accompanied by the usual assurances of the skill and activity

of the patriots who were perilling their lives in a rebel city to save

that of the Chief Magistrate. When he reached New York, he was met by

the woman who had originally gone with the other spies to Baltimore.

She had urgent messages from her chief--messages that disturbed Mr.

Judd exceedingly. The detective was anxious to meet Mr. Judd and the

President, and a meeting was accordingly arranged to take place at

Philadelphia.

"Mr. Lincoln reached Philadelphia on the afternoon of the 21st. The

detective had arrived in the morning, and improved the interval to

impress and enlist Mr. Felton. In the evening he got Mr. Judd and Mr.

Felton into his room at the St. Louis Hotel, and told them all he had

learned. He dwelt at large on the fierce temper of the Baltimore

secessionists; on the loose talk he had heard about 'fireballs or

hand-grenades'; on a 'privateer' said to be moored somewhere in the

bay; on the organization called National Volunteers; on the fact that,

eavesdropping at Barnum's Hotel, he had overheard Marshal Kane

intimate that he would not supply a police force on some undefined

occasion, but what the occasion was he did not know. He made much of

his miserable victim, Hilliard, whom he held up as a perfect type of

the class from which danger was to be apprehended; but concerning

"Captain" Ferrandini and his threats, he said, according to his own

account, not a single word. He had opened his case, his whole case,

and stated it as strongly as he could. Mr. Judd was very much

startled, and was sure that it would be extremely imprudent for Mr.

Lincoln to pass through Baltimore in open daylight, according to the

published programme. But he thought the detective ought to see the

President himself; and, as it was wearing toward nine o'clock, there

was no time to lose. It was agreed that the part taken by the

detective and Mr. Felton should be kept secret from every one but the

President. Mr. Sanford, President of the American Telegraph Company,

had also been co-operating in the business, and the same stipulation

was made with regard to him.

"Mr. Judd went to his own room at the Continental, and the detective

followed. The crowd in the hotel was very dense, and it took some time

to get a message to Mr. Lincoln. But it finally reached him, and he

responded in person. Mr. Judd introduced the detective, and the latter

told his story over again, with a single variation: this time he

mentioned the name of Ferrandini along with Hilliard's, but gave no

more prominence to one than to the other.

"Mr. Judd and the detective wanted Lincoln to leave for Washington

that night. This he flatly refused to do. He had engagements with the

people, he said, to raise a flag over Independence Hall in the

morning, and to exhibit himself at Harrisburg in the afternoon, and

these engagements he would not break in any event. But he would raise

the flag, go to Harrisburg, 'get away quietly' in the evening, and

permit himself to be carried to Washington in the way they thought

best. Even this, however, he conceded with great reluctance. He

condescended to cross-examine the detective on some parts of his

narrative, but at no time did he seem in the least degree alarmed. He

was earnestly requested not to communicate the change of plan to any

member of his party except Mr. Judd, nor permit even a suspicion of it

to cross the mind of another. To this he replied that he would be

compelled to tell Mrs. Lincoln, 'and he thought it likely that she

would insist upon W. H. Lamon going with him; but, aside from that, no

one should know.'

"In the meantime, Mr. Seward had also discovered the conspiracy. He

dispatched his son to Philadelphia to warn the President-elect of the

terrible plot into whose meshes he was about to run. Mr. Lincoln

turned him over to Judd, and Judd told him they already knew all about

it. He went away with just enough information to enable his father to

anticipate the exact moment of Mr. Lincoln's surreptitious arrival in

Washington.

"Early on the morning of the 22d, Mr. Lincoln raised the flag over

Independence Hall, and departed for Harrisburg. On the way Mr. Judd

'gave him a full and precise detail of the arrangements that had been

made' the previous night. After the conference with the detective, Mr.

Sanford, Colonel Scott, Mr. Felton, railroad and telegraph officials,

had been sent for, and came to Mr. Judd's room. They occupied nearly

the whole of the night in perfecting the plan. It was finally

understood that about six o'clock the next evening Mr. Lincoln should

slip away from the Jones Hotel, at Harrisburg, in company with a

single member of his party. A special car and engine would be provided

for him on the track outside the depot. All other trains on the road

would be 'side-tracked' until this one had passed. Mr. Sanford would

forward skilled 'telegraph-climbers,' and see that all the wires

leading out of Harrisburg were cut at six o'clock, and kept down until

it was known that Mr. Lincoln had reached Washington in safety. The

detective would meet Mr. Lincoln at the West Philadelphia Depot with a

carriage, and conduct him by a circuitous route to the Philadelphia,

Wilmington and Baltimore Depot. Berths for four would be pre-engaged

in the sleeping-car attached to the regular midnight train for

Baltimore. This train Mr. Felton would cause to be detained until the

conductor should receive a package, containing important 'Government

dispatches,' addressed to 'E. J. Allen, Willard's Hotel, Washington.'

This package was made up of old newspapers, carefully wrapped and

sealed, and delivered to the detective to be used as soon as Mr.

Lincoln was lodged in the car. Mr. Lincoln approved of the plan, and

signified his readiness to acquiesce. Then Mr. Judd, forgetting the

secrecy which the spy had so impressively enjoined, told Mr. Lincoln

that the step he was about to take was one of such transcendent

importance that he thought 'it should be communicated to the other

gentlemen of the party.' Mr. Lincoln said, 'You can do as you like

about that.' Mr. Judd now changed his seat; and Mr. Nicolay, whose

suspicions seem to have been aroused by this mysterious conference,

sat down beside him and said: 'Judd, there is something _up_. What is

it, if it is proper that I should know?' 'George,' answered Judd,

'there is no necessity for your knowing it. One man can keep a matter

better than two.'

"Arrived at Harrisburg, and the public ceremonies and speechmaking

over, Mr. Lincoln retired to a private parlor in the Jones House, and

Mr. Judd summoned to meet him Judge Davis, Colonel Lamon, Colonel

Sumner, Major Hunter and Captain Pope. The three latter were officers

of the regular army, and had joined the party after it had left

Springfield. Judd began the conference by stating the alleged fact of

the Baltimore conspiracy, how it was detected, and how it was proposed

to thwart it by a midnight expedition to Washington by way of

Philadelphia. It was a great surprise to most of those assembled.

Colonel Sumner was the first to break silence. 'That proceeding,' said

he, 'will be a damned piece of cowardice.' Mr. Judd considered this a

'pointed hit,' but replied that 'that view of the case had already

been presented to Mr. Lincoln.' Then there was a general interchange

of opinions, which Sumner interrupted by saying, 'I'll get a squad of

cavalry, sir, and _cut_ our way to Washington, sir!' 'Probably before

that day comes,' said Mr. Judd, 'the inauguration-day will have

passed. It is important that Mr. Lincoln should be in Washington that

day.' Thus far Judge Davis had expressed no opinion, but 'had put

various questions to test the truthfulness of the story.' He now

turned to Mr. Lincoln and said, 'You personally heard the detective's

story. You have heard this discussion. What is your judgment in the

matter?' 'I have listened,' answered Mr. Lincoln, 'to this discussion

with interest. I see no reason, no good reason, to change the

programme, and I am for carrying it out as arranged by Judd.' There

was no longer any dissent as to the plan itself; but one question

still remained to be disposed of. Who should accompany the President

on his perilous ride? Mr. Judd again took the lead, declaring that he

and Mr. Lincoln had previously determined that but one man ought to

go, and that Colonel Lamon had been selected as the proper person. To

this Sumner violently demurred. '_I_ have undertaken,' he exclaimed,

'to see Mr. Lincoln to Washington.'

"Mr. Lincoln was hastily dining when a close carriage was brought to

the side door of the hotel. He was called, hurried to his room,

changed his coat and hat, and passed rapidly through the hall and out

of the door. As he was stepping into the carriage, it became manifest

that Sumner was determined to get in also. 'Hurry with him,' whispered

Judd to Lamon, and at the same time, placing his hand on Sumner's

shoulder, said aloud, 'One moment, Colonel!' Sumner turned around, and

in that moment the carriage drove rapidly away. 'A madder man,' says

Mr. Judd, 'you never saw.'

"Mr. Lincoln and Colonel Lamon got on board the car without discovery

or mishap. Besides themselves, there was no one in or about the car

but Mr. Lewis, General Superintendent of the Pennsylvania Central

Railroad, and Mr. Franciscus, superintendent of the division over

which they were about to pass. As Mr. Lincoln's dress on this occasion

has been much discussed, it may be as well to state that he wore a

soft, light felt hat, drawn down over his face when it seemed

necessary or convenient, and a shawl thrown over his shoulders, and

pulled up to assist in disguising his features when passing to and

from the carriage. This was all there was of the 'Scotch cap and

cloak,' so widely celebrated in the political literature of the day.

"At ten o'clock they reached Philadelphia, and were met by the

detective and one Mr. Kinney, an under official of the Philadelphia,

Wilmington and Baltimore Railroad. Lewis and Franciscus bade Mr.

Lincoln adieu. Mr. Lincoln, Colonel Lamon and the detective seated

themselves in a carriage which stood in waiting, and Mr. Kinney got

upon the box with the driver. It was a full hour and a half before the

Baltimore train was to start, and Mr. Kinney found it necessary 'to

consume the time by driving northward in search of some imaginary

person.'

"On the way through Philadelphia, Mr. Lincoln told his companions

about the message he had received from Mr. Seward. This new discovery

was infinitely more appalling than the other. Mr. Seward had been

informed 'that about _fifteen thousand men_ were organized to prevent

his (Lincoln's) passage through Baltimore, and that arrangements were

made by these parties to _blow up the railroad track, fire the

train_,' etc. In view of these unpleasant circumstances, Mr. Seward

recommended a change of route. Here was a plot big enough to swallow

up the little one, which we are to regard as the peculiar property of

Mr. Felton's detective. Hilliard, Ferrandini and Luckett disappear

among the 'fifteen thousand,' and their maudlin and impotent twaddle

about the 'abolition tyrant' looks very insignificant beside the

bloody massacre, conflagration and explosion now foreshadowed.

"As the moment for the departure of the Baltimore train drew near,

the carriage paused in the dark shadows of the depot building. It was

not considered prudent to approach the entrance. The spy passed in

first and was followed by Mr. Lincoln and Colonel Lamon. An agent of

the former directed them to the sleeping-car, which they entered by

the rear door. Mr. Kinney ran forward and delivered to the conductor

the important package prepared for the purpose; and in three minutes

the train was in motion. The tickets for the whole party had been

procured beforehand. Their berths were ready, but had only been

preserved from invasion by the statement that they were retained for a

sick man and his attendants. The business had been managed very

adroitly by the female spy, who had accompanied her employer from

Baltimore to Philadelphia to assist him in this, the most delicate and

important affair of his life. Mr. Lincoln got into his bed

immediately, and the curtains were drawn together. When the conductor

came around, the detective handed him the 'sick man's' ticket, and the

rest of the party lay down also. None of 'our party appeared to be

sleepy,' says the detective, 'but we all lay quiet, and nothing of

importance transpired.'... During the night Mr. Lincoln indulged in a

joke or two in an undertone; but, with that exception, the two

sections occupied by them were perfectly silent. The detective said he

had men stationed at various places along the road to let him know 'if

all was right,' and he rose and went to the platform occasionally to

observe their signals, but returned each time with a favorable report.

"At thirty minutes after three the train reached Baltimore. One of the

spy's assistants came on board and informed him in a whisper that all

was right. The woman [the female detective] got out of the car. Mr.

Lincoln lay close in his berth, and in a few moments the car was

being slowly drawn through the quiet streets of the city toward the

Washington Depot. There again there was another pause, but no sound

more alarming than the noise of shifting cars and engines. The

passengers, tucked away on their narrow shelves, dozed on as

peacefully as if Mr. Lincoln had never been born....

"In due time the train sped out of the suburbs of Baltimore, and the

apprehensions of the President and his friends diminished with each

welcome revolution of the wheels. At six o'clock the dome of the

Capitol came in sight, and a moment later they rolled into the long,

unsightly building which forms the Washington Depot. They passed out

of the car unobstructed, and pushed along with the living stream of

men and women towards the outer door. One man alone in the great crowd

seemed to watch Mr. Lincoln with special attention. Standing a little

on one side, he 'looked very sharp at him,' and, as he passed, seized

hold of his hand and said in a loud tone of voice, 'Abe, you can't

play that on me.' The detective and Col. Lamon were instantly alarmed.

One of them raised his fist to strike the stranger; but Mr. Lincoln

caught his arm and said, 'Don't strike him! don't strike him! It is

Washburne. Don't you know him?' Mr. Seward had given to Mr. Washburne

a hint of the information received through his son, and Mr. Washburne

knew its value as well as another. For the present the detective

admonished him to keep quiet, and they passed on together. Taking a

hack, they drove towards Willard's Hotel. Mr. Lincoln, Mr. Washburne

and the detective got out into the street and approached the ladies'

entrance, while Col. Lamon drove on to the main entrance, and sent the

proprietor to meet his distinguished guest at the side door. A few

minutes later Mr. Seward arrived, and was introduced to the company

by Mr. Washburne. He spoke in very strong terms of the great danger

which Mr. Lincoln had so narrowly escaped, and most heartily applauded

the wisdom of the 'secret passage.' 'I informed Gov. Seward of the

nature of the information I had,' says the detective, 'and that I had

no information of any large organization in Baltimore; but the

Governor reiterated that he had conclusive evidence of this.'...

"That same day Mr. Lincoln's family and suite passed through Baltimore

on the special train intended for him. They saw no sign of any

disposition to burn them alive, or to blow them up with gunpowder, but

went their way unmolested and very happy.

"Mr. Lincoln soon learned to regret the midnight ride. His friends

reproached him; his enemies taunted him. He was convinced that he had

committed a grave mistake in yielding to the solicitations of a

professional spy and of friends too easily alarmed. He saw that he had

fled from a danger purely imaginary, and felt the shame and

mortification natural to a brave man under such circumstances. But he

was not disposed to take all the responsibility to himself, and

frequently upbraided the writer for having aided and assisted him to

demean himself at the very moment in all his life when his behavior

should have exhibited the utmost dignity and composure.

"The news of his surreptitious entry into Washington occasioned much

and varied comment throughout the country; but important events

followed it in such rapid succession that its real significance was

soon lost sight of; enough that Mr. Lincoln was safely at the Capital,

and in a few days would in all probability assume the power confided

to his hands."

APPENDIX II.

EXTRACT FROM THE OPINION OF THE SUPREME COURT OF THE UNITED

STATES, DELIVERED BY CHIEF JUSTICE TANEY IN THE CASE OF DRED

SCOTT _vs._ SANDFORD, 19 HOW. 407.

"It is difficult at this day to realize the state of public opinion in

relation to that unfortunate race" (the African) "which prevailed in

the civilized and enlightened portions of the world at the time of the

Declaration of Independence, and when the Constitution of the United

States was framed and adopted.

"But the public history of every European nation displays it in a

manner too plain to be mistaken.

"They had for more than a century before been regarded as beings of an

inferior order, and altogether unfit to associate with the white race,

either in social or political relations; and so far inferior, that

they had no rights which the white man was bound to respect; and that

the negro might justly and lawfully be reduced to slavery for his

benefit."

APPENDIX III.

THE HABEAS CORPUS CASE EX PARTE JOHN MERRYMAN, CAMPBELL'S

REPORTS, P. 246. -- OPINION OF THE CHIEF JUSTICE OF THE UNITED

STATES.

_Ex parte_ } Before the Chief Justice of the Supreme

JOHN MERRYMAN. } Court of the United States, at Chambers.

The application in this case for a writ of _habeas corpus_ is made to

me under the fourteenth section of the Judiciary Act of 1789, which

renders effectual for the citizen the constitutional privilege of the

writ of _habeas corpus_. That act gives to the courts of the United

States, as well as to each justice of the Supreme Court and to every

district judge, power to grant writs of _habeas corpus_ for the

purpose of an inquiry into the cause of commitment. The petition was

presented to me at Washington, under the impression that I would order

the prisoner to be brought before me there; but as he was confined in

Fort McHenry, in the city of Baltimore, which is in my circuit, I

resolved to hear it in the latter city, as obedience to the writ under

such circumstances would not withdraw General Cadwallader, who had him

in charge, from the limits of his military command.

The petition presents the following case:

The petitioner resides in Maryland, in Baltimore County. While

peaceably in his own house, with his family, it was, at two o'clock on

the morning of the 25th of May, 1861, entered by an armed force

professing to act under military orders. He was then compelled to

rise from his bed, taken into custody and conveyed to Fort McHenry,

where he is imprisoned by the commanding officer, without warrant from

any lawful authority.

The commander of the fort, General George Cadwallader, by whom he is

detained in confinement, in his return to the writ, does not deny any

of the facts alleged in the petition. He states that the prisoner was

arrested by order of General Keim, of Pennsylvania, and conducted as

aforesaid to Fort McHenry by his order, and placed in his (General

Cadwallader's) custody, to be there detained by him as a prisoner.

A copy of the warrant or order under which the prisoner was arrested

was demanded by his counsel and refused. And it is not alleged in the

return that any specific act, constituting any offense against the

laws of the United States, has been charged against him upon oath; but

he appears to have been arrested upon general charges of treason and

rebellion, without proof, and without giving the names of the

witnesses, or specifying the acts which, in the judgment of the

military officer, constituted these crimes. Having the prisoner thus

in custody upon these vague and unsupported accusations, he refuses to

obey the writ of _habeas corpus_, upon the ground that he is duly

authorized by the President to suspend it.

The case, then, is simply this: A military officer, residing in

Pennsylvania, issues an order to arrest a citizen of Maryland upon

vague and indefinite charges, without any proof, so far as appears.

Under this order his house is entered in the night, he is seized as a

prisoner and conveyed to Fort McHenry, and there kept in close

confinement. And when a _habeas corpus_ is served on the commanding

officer, requiring him to produce the prisoner before a justice of the

Supreme Court, in order that he may examine into the legality of the

imprisonment, the answer of the officer is that he is authorized by

the President to suspend the writ of _habeas corpus_ at his

discretion, and, in the exercise of that discretion, suspends it in

this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the

President not only claims the right to suspend the writ of _habeas

corpus_ himself at his discretion, but to delegate that discretionary

power to a military officer, and to leave it to him to determine

whether he will or will not obey judicial process that may be served

upon him.

No official notice has been given to the courts of justice, or to the

public, by proclamation or otherwise, that the President claimed this

power, and had exercised it in the manner stated in the return. And I

certainly listened to it with some surprise; for I had supposed it to

be one of those points of constitutional law upon which there was no

difference of opinion, and that it was admitted on all hands that the

privilege of the writ could not be suspended except by act of

Congress.

When the conspiracy of which Aaron Burr was the head became so

formidable and was so extensively ramified as to justify, in Mr.

Jefferson's opinion, the suspension of the writ, he claimed on his

part no power to suspend it, but communicated his opinion to Congress,

with all the proofs in his possession, in order that Congress might

exercise its discretion upon the subject, and determine whether the

public safety required it. And in the debate which took place upon the

subject, no one suggested that Mr. Jefferson might exercise the power

himself, if, in his opinion, the public safety demanded it.

Having therefore regarded the question as too plain and too well

settled to be open to dispute, if the commanding officer had stated

that upon his own responsibility, and in the exercise of his own

discretion, he refused obedience to the writ, I should have contented

myself with referring to the clause in the Constitution, and to the

construction it received from every jurist and statesman of that day,

when the case of Burr was before them. But being thus officially

notified that the privilege of the writ has been suspended under the

orders and by the authority of the President, and believing, as I do,

that the President has exercised a power which he does not possess

under the Constitution, a proper respect for the high office he fills

requires me to state plainly and fully the grounds of my opinion, in

order to show that I have not ventured to question the legality of his

act without a careful and deliberate examination of the whole subject.

The clause of the Constitution which authorizes the suspension of the

privilege of the writ of _habeas corpus_ is in the ninth section of

the first article.

This article is devoted to the legislative department of the United

States, and has not the slightest reference to the Executive

Department. It begins by providing "that all legislative powers

therein granted shall be vested in a Congress of the United States,

which shall consist of a Senate and House of Representatives"; and

after prescribing the manner in which these two branches of the

legislative department shall be chosen, it proceeds to enumerate

specifically the legislative powers which it thereby grants, and at

the conclusion of this specification a clause is inserted giving

Congress "the power to make all laws which shall be necessary and

proper for carrying into execution the foregoing powers, and all other

powers vested by this Constitution in the Government of the United

States, or in any department or office thereof."

The power of legislation granted by this latter clause is by its words

carefully confined to the specific objects before enumerated. But as

this limitation was unavoidably somewhat indefinite, it was deemed

necessary to guard more effectually certain great cardinal principles

essential to the liberty of the citizen, and to the rights and

equality of the States, by denying to Congress, in express terms, any

power of legislation over them. It was apprehended, it seems, that

such legislation might be attempted under the pretext that it was

necessary and proper to carry into execution the powers granted; and

it was determined that there should be no room to doubt, where rights

of such vital importance were concerned, and accordingly this clause

is immediately followed by an enumeration of certain subjects to which

the powers of legislation shall not extend. The great importance which

the framers of the Constitution attached to the privilege of the writ

of _habeas corpus_ to protect the liberty of the citizen, is proved by

the fact that its suspension, except in cases of invasion or

rebellion, is first in the list of prohibited powers--and even in

these cases the power is denied and its exercise prohibited, unless

the public safety shall require it. It is true that in the cases

mentioned, Congress is of necessity the judge of whether the public

safety does, or does not, require it; and its judgment is conclusive.

But the introduction of these words is a standing admonition to the

legislative body of the danger of suspending it, and of the extreme

caution they should exercise before they give the Government of the

United States such power over the liberty of a citizen.

It is the second article of the Constitution that provides for the

organization of the Executive Department, and enumerates the powers

conferred on it, and prescribes its duties. And if the high power over

the liberty of the citizen now claimed was intended to be conferred

on the President, it would undoubtedly be found in plain words in this

article. But there is not a word in it that can furnish the slightest

ground to justify the exercise of the power.

The article begins by declaring that the executive power shall be

vested in a President of the United States of America, to hold his

office during the term of four years, and then proceeds to prescribe

the mode of election, and to specify in precise and plain words the

powers delegated to him, and the duties imposed upon him. The short

term for which he is elected, and the narrow limits to which his power

is confined, show the jealousy and apprehensions of future danger

which the framers of the Constitution felt in relation to that

department of the Government, and how carefully they withheld from it

many of the powers belonging to the Executive Branch of the English

Government which were considered as dangerous to the liberty of the

subject, and conferred (and that in clear and specific terms) those

powers only which were deemed essential to secure the successful

operation of the Government.

He is elected, as I have already said, for the brief term of four

years, and is made personally responsible by impeachment for

malfeasance in office. He is from necessity and the nature of his

duties the Commander-in-Chief of the Army and Navy, and of the militia

when called into actual service. But no appropriation for the support

of the Army can be made by Congress for a longer term than two years,

so that it is in the power of the succeeding House of Representatives

to withhold the appropriation for its support, and thus disband it,

if, in their judgment, the President used or designed to use it for

improper purposes. And although the militia, when in actual service,

is under his command, yet the appointment of the officers is reserved

to the States, as a security against the use of the military power for

purposes dangerous to the liberties of the people or the rights of the

States.

So, too, his powers in relation to the civil duties and authority

necessarily conferred on him are carefully restricted, as well as

those belonging to his military character. He cannot appoint the

ordinary officers of Government, nor make a treaty with a foreign

nation or Indian tribe, without the advice and consent of the Senate,

and cannot appoint even inferior officers unless he is authorized by

an Act of Congress to do so. He is not empowered to arrest any one

charged with an offense against the United States, and whom he may,

from the evidence before him, believe to be guilty; nor can he

authorize any officer, civil or military, to exercise this power; for

the fifth article of the Amendments to the Constitution expressly

provides that no person "shall be deprived of life, liberty or

property without due process of law"--that is, judicial process. Even

if the privilege of the writ of _habeas corpus_ were suspended by Act

of Congress, and a party not subject to the rules and articles of war

were afterwards arrested and imprisoned by regular judicial process,

he could not be detained in prison or brought to trial before a

military tribunal; for the article in the Amendments to the

Constitution immediately following the one above referred to--that is,

the sixth article--provides that "in all criminal prosecutions the

accused shall enjoy the right to a speedy and public trial by an

impartial jury of the State and district wherein the crime shall have

been committed, which district shall have been previously ascertained

by law; and to be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense."

The only power, therefore, which the President possesses, where the

"life, liberty, or property" of a private citizen is concerned, is the

power and duty prescribed in the third section of the second article,

which requires "that he shall take care that the laws be faithfully

executed." He is not authorized to execute them himself, or through

agents or officers, civil or military, appointed by himself, but he is

to take care that they be faithfully carried into execution as they

are expounded and adjudged by the co-ordinate branch of the Government

to which that duty is assigned by the Constitution. It is thus made

his duty to come in aid of the judicial authority, if it shall be

resisted by a force too strong to be overcome without the assistance

of the executive arm. But in exercising this power he acts in

subordination to judicial authority, assisting it to execute its

process and enforce its judgments.

With such provisions in the Constitution, expressed in language too

clear to be misunderstood by any one, I can see no ground whatever for

supposing that the President, in any emergency or in any state of

things, can authorize the suspension of the privilege of the writ of

_habeas corpus_, or the arrest of a citizen, except in aid of the

judicial power. He certainly does not faithfully execute the laws if

he takes upon himself legislative power by suspending the writ of

_habeas corpus_, and the judicial power also, by arresting and

imprisoning a person without due process of law. Nor can any argument

be drawn from the nature of sovereignty, or the necessity of

Government for self-defense in times of tumult and danger. The

Government of the United States is one of delegated and limited

powers. It derives its existence and authority altogether from the

Constitution, and neither of its branches, executive, legislative or

judicial, can exercise any of the powers of Government beyond those

specified and granted. For the tenth article of the Amendments to the

Constitution in express terms provides that "the powers not delegated

to the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people."

Indeed, the security against imprisonment by executive authority,

provided for in the fifth article of the Amendments to the

Constitution, which I have before quoted, is nothing more than a copy

of a like provision in the English Constitution, which had been firmly

established before the Declaration of Independence.

Blackstone states it in the following words:

"To make imprisonment lawful, it must be either by process of law from

the courts of judicature or by warrant from some legal officer having

authority to commit to prison" (1 Bl. Com. 137).

The people of the United Colonies, who had themselves lived under its

protection while they were British subjects, were well aware of the

necessity of this safeguard for their personal liberty. And no one can

believe that, in framing a government intended to guard still more

efficiently the rights and liberties of the citizen against executive

encroachments and oppression, they would have conferred on the

President a power which the history of England had proved to be

dangerous and oppressive in the hands of the Crown, and which the

people of England had compelled it to surrender after a long and

obstinate struggle on the part of the English Executive to usurp and

retain it.

The right of the subject to the benefit of the writ of _habeas

corpus_, it must be recollected, was one of the great points in

controversy during the long struggle in England between arbitrary

government and free institutions, and must therefore have strongly

attracted the attention of the statesmen engaged in framing a new,

and, as they supposed, a freer government than the one which they had

thrown off by the Revolution. From the earliest history of the common

law, if a person were imprisoned, no matter by what authority, he had

a right to the writ of _habeas corpus_ to bring his case before the

King's Bench; if no specific offense were charged against him in the

warrant of commitment, he was entitled to be forthwith discharged; and

if an offense were charged which was bailable in its character, the

Court was bound to set him at liberty on bail. The most exciting

contests between the Crown and the people of England from the time of

_Magna Charta_ were in relation to the privilege of this writ, and

they continued until the passage of the statute of 31st Charles II,

commonly known as the Great _Habeas Corpus_ Act. This statute put an

end to the struggle, and finally and firmly secured the liberty of the

subject against the usurpation and oppression of the executive branch

of the Government. It nevertheless conferred no new right upon the

subject, but only secured a right already existing. For, although the

right could not justly be denied, there was often no effectual remedy

against its violation. Until the statute of 13 William III, the judges

held their offices at the pleasure of the King, and the influence

which he exercised over timid, time-serving and partisan judges often

induced them, upon some pretext or other, to refuse to discharge the

party, although entitled by law to his discharge, or delayed their

decision from time to time, so as to prolong the imprisonment of

persons who were obnoxious to the King for their political opinions,

or had incurred his resentment in any other way.

The great and inestimable value of the _habeas corpus_ act of the 31st

Charles II. is that it contains provisions which compel courts and

judges, and all parties concerned, to perform their duties promptly in

the manner specified in the statute.

A passage in Blackstone's Commentaries, showing the ancient state of

the law on this subject, and the abuses which were practised through

the power and influence of the Crown, and a short extract from

Hallam's "Constitutional History," stating the circumstances which

gave rise to the passage of this statute, explain briefly, but fully,

all that is material to this subject.

Blackstone says: "To assert an absolute exemption from imprisonment in

all cases is inconsistent with every idea of law and political

society, and, in the end, would destroy all civil liberty by rendering

its protection impossible.

"But the glory of the English law consists in clearly defining the

times, the causes and the extent, when, wherefore and to what degree

the imprisonment of the subject may be lawful. This it is which

induces the absolute necessity of expressing upon every commitment the

reason for which it is made, "that the court upon a _habeas corpus_

may examine into its validity, and, according to the circumstances of

the case, may discharge, admit to bail, or remand the prisoner.

"And yet, early in the reign of Charles I, the Court of King's Bench,

relying on some arbitrary precedents (and those, perhaps,

misunderstood), determined that they would not, upon a _habeas

corpus_, either bail or deliver a prisoner, though committed without

any cause assigned, in case he was committed by the special command of

the King, or by the Lords of the Privy Council. This drew on a

Parliamentary inquiry and produced the Petition of Right--3 Charles

I.--which recites this illegal judgment, and enacts that no freeman

hereafter shall be so imprisoned or detained. But when, in the

following year, Mr. Selden and others were committed by the Lords of

the Council, in pursuance of His Majesty's special command, under a

general charge of 'notable contempts, and stirring up sedition against

the King and the Government,' the judges delayed for two terms

(including also the long vacation) to deliver an opinion how far such

a charge was bailable. And when at length they agreed that it was,

they, however, annexed a condition of finding sureties for their good

behavior, which still protracted their imprisonment, the Chief

Justice, Sir Nicholas Hyde, at the same time declaring that 'if they

were again remanded for that cause, perhaps the court would not

afterwards grant a _habeas corpus_, being already made acquainted with

the cause of the imprisonment.' But this was heard with indignation

and astonishment by every lawyer present, according to Mr. Selden's

own account of the matter, whose resentment was not cooled at the

distance of four-and-twenty years" (3 Bl. Com. 133, 134).

It is worthy of remark that the offenses charged against the prisoner

in this case, and relied on as a justification for his arrest and

imprisonment, in their nature and character, and in the loose and

vague manner in which they are stated, bear a striking resemblance to

those assigned in the warrant for the arrest of Mr. Selden. And yet,

even at that day, the warrant was regarded as such a flagrant

violation of the rights of the subject, that the delay of the

time-serving judges to set him at liberty upon the _habeas corpus_

issued in his behalf excited universal indignation of the bar. The

extract from Hallam's "Constitutional History" is equally impressive

and equally in point:

"It is a very common mistake, and that not only among foreigners, but

many from whom some knowledge of our constitutional laws might be

expected, to suppose that this statute of Charles II. enlarged in a

great degree our liberties, and forms a sort of epoch in their

history. But though a very beneficial enactment, and eminently

remedial in many cases of illegal imprisonment, it introduced no new

principle, nor conferred any right upon the subject. From the earliest

records of the English law, no freeman could be detained in prison,

except upon a criminal charge, or conviction, or for a civil debt. In

the former case it was always in his power to demand of the Court of

King's Bench a writ of _habeas corpus ad subjiciendum_, directed to

the person detaining him in custody, by which he was enjoined to bring

up the body of the prisoner with the warrant of commitment, that the

court might judge of its sufficiency, and remand the party, admit him

to bail, or discharge him, according to the nature of the charge. This

writ issued of right, and could not be refused by the court. It was

not to bestow an immunity from arbitrary imprisonment--which is

abundantly provided for in _Magna Charta_ (if, indeed, it is not more

ancient)--that the statute of Charles II. was enacted, but to cut off

the abuses by which the Government's lust of power, and the servile

subtlety of the Crown lawyers, had impaired so fundamental a

privilege" (3 Hallam's "Const. Hist.," 19).

While the value set upon this writ in England has been so great that

the removal of the abuses which embarrassed its employment has been

looked upon as almost a new grant of liberty to the subject, it is not

to be wondered at that the continuance of the writ thus made effective

should have been the object of the most jealous care. Accordingly, no

power in England short of that of Parliament can suspend or authorize

the suspension of the writ of _habeas corpus_. I quote again from

Blackstone (1 Bl. Com. 136): "But the happiness of our Constitution is

that it is not left to the executive power to determine when the

danger of the State is so great as to render this measure expedient.

It is the Parliament only, or legislative power, that, whenever it

sees proper, can authorize the Crown, by suspending the _habeas

corpus_ for a short and limited time, to imprison suspected persons

without giving any reason for so doing." If the President of the

United States may suspend the writ, then the Constitution of the

United States has conferred upon him more regal and absolute power

over the liberty of the citizen than the people of England have

thought it safe to entrust to the Crown--a power which the Queen of

England cannot exercise at this day, and which could not have been

lawfully exercised by the sovereign even in the reign of Charles I.

But I am not left to form my judgment upon this great question from

analogies between the English Government and our own, or the

commentaries of English jurists, or the decisions of English courts,

although upon this subject they are entitled to the highest respect,

and are justly regarded and received as authoritative by our courts of

justice. To guide me to a right conclusion, I have the Commentaries on

the Constitution of the United States of the late Mr. Justice Story,

not only one of the most eminent jurists of the age, but for a long

time one of the brightest ornaments of the Supreme Court of the United

States, and also the clear and authoritative decision of that court

itself, given more than half a century since, and conclusively

establishing the principles I have above stated.

Mr. Justice Story, speaking in his Commentaries of the _habeas corpus_

clause in the Constitution, says: "It is obvious that cases of a

peculiar emergency may arise which may justify, nay, even require, the

temporary suspension of any right to the writ. But as it has

frequently happened in foreign countries, and even in England, that

the writ has, upon various pretexts and occasions, been suspended,

whereby persons apprehended upon suspicion have suffered a long

imprisonment, sometimes from design, and sometimes because they were

forgotten, the right to suspend it is expressly confined to cases of

rebellion or invasion, where the public safety may require it. A very

just and wholesome restraint, which cuts down at a blow a fruitful

means of oppression, capable of being abused in bad times to the worst

of purposes. Hitherto no suspension of the writ has ever been

authorized by Congress since the establishment of the Constitution. It

would seem, as the power is given to Congress to suspend the writ of

_habeas corpus_ in cases of rebellion or invasion, that the right to

judge whether the exigency had arisen must exclusively belong to that

body" (3 Story's Com. on the Constitution, Section 1836).

And Chief Justice Marshall, in delivering the opinion of the Supreme

Court in the case of _ex parte_ Bollman and Swartwout, uses this

decisive language in 4 Cranch 95: "It may be worthy of remark that

this Act (speaking of the one under which I am proceeding) was passed

by the first Congress of the United States, sitting under a

Constitution which had declared 'that the privilege of the writ of

_habeas corpus_ should not be suspended unless when, in cases of

rebellion or invasion, the public safety might require it.' Acting

under the immediate influence of this injunction, they must have felt

with peculiar force the obligation of providing efficient means by

which this great constitutional privilege should receive life and

activity; for if the means be not in existence, the privilege itself

would be lost, although no law for its suspension should be enacted.

Under the impression of this obligation, they give to all the courts

the power of awarding writs of _habeas corpus_."

And again, on page 101: "If at any time the public safety should

require the suspension of the powers vested by this Act in the courts

of the United States, it is for the Legislature to say so. That

question depends on political considerations, on which the Legislature

is to decide. Until the legislative will be expressed, this court can

only see its duty, and must obey the laws."

I can add nothing to these clear and emphatic words of my great

predecessor. But the documents before me show that the military

authority in this case has gone far beyond the mere suspension of the

privilege of the writ of _habeas corpus_. It has, by force of arms,

thrust aside the judicial authorities and officers to whom the

Constitution has confided the power and duty of interpreting and

administering the laws, and substituted a military government in its

place, to be administered and executed by military officers. For, at

the time these proceedings were had against John Merryman, the

district judge of Maryland, the commissioner appointed under the Act

of Congress, the district attorney and the marshal, all resided in the

city of Baltimore, a few miles only from the home of the prisoner. Up

to that time there had never been the slightest resistance or

obstruction to the process of any court or judicial officer of the

United States in Maryland, except by the military authority. And if a

military officer, or any other person, had reason to believe that the

prisoner had committed any offense against the laws of the United

States, it was his duty to give information of the fact, and the

evidence to support it, to the district attorney; it would then have

become the duty of that officer to bring the matter before the

district judge or commissioner, and if there was sufficient legal

evidence to justify his arrest, the judge or commissioner would have

issued his warrant to the marshal to arrest him, and upon the hearing

of the case would have held him to bail, or committed him for trial,

according to the character of the offense as it appeared in the

testimony, or would have discharged him immediately, if there was not

sufficient evidence to support the accusation. There was no danger of

any obstruction or resistance to the action of the civil authorities,

and therefore no reason whatever for the interposition of the

military. Yet, under these circumstances, a military officer stationed

in Pennsylvania, without giving any information to the district

attorney, and without any application to the judicial authorities,

assumes to himself the judicial power in the District of Maryland;

undertakes to decide what constitutes the crime of treason or

rebellion; what evidence (if, indeed, he required any) is sufficient

to support the accusation and justify the commitment; and commits the

party without a hearing, even before himself, to close custody in a

strongly garrisoned fort, to be there held, it would seem, during the

pleasure of those who committed him.

The Constitution provides, as I have before said, that "no person

shall be deprived of life, liberty or property without due process of

law." It declares that "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 warrant 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." It provides that the party accused shall be entitled to a

speedy trial in a court of justice.

These great and fundamental laws, which Congress itself could not

suspend, have been disregarded and suspended, like the writ of _habeas

corpus_, by a military order, supported by force of arms. Such is the

case now before me, and I can only say that if the authority which the

Constitution has confided to the judiciary department and judicial

officers may thus upon any pretext or under any circumstances be

usurped by the military power at its discretion, the people of the

United States are no longer living under a government of laws, but

every citizen holds life, liberty and property at the will and

pleasure of the army officer in whose military district he may happen

to be found.

In such a case my duty was too plain to be mistaken. I have exercised

all the power which the Constitution and laws confer upon me, but that

power has been resisted by a force too strong for me to overcome. It

is possible that the officer who has incurred this grave

responsibility may have misunderstood his instructions and exceeded

the authority intended to be given him. I shall therefore order all

the proceedings in this case, with my opinion, to be filed and

recorded in the Circuit Court of the United States for the District of

Maryland, and direct the clerk to transmit a copy, under seal, to the

President of the United States. It will then remain for that high

officer, in fulfilment of his constitutional obligation, to "take care

that the laws be faithfully executed," to determine what measures he

will take to cause the civil process of the United States to be

respected and enforced.

R. B. TANEY,

_Chief Justice of the Supreme Court

of the United States_.

APPENDIX IV.

On the 12th of July, 1861, I sent a message to the First and Second

Branches of the City Council referring to the events of the 19th of

April and those which followed. The first paragraph and the concluding

paragraphs of this document are here inserted:

"THE MAYOR'S MESSAGE.

"TO THE HONORABLE THE MEMBERS OF THE

FIRST AND SECOND BRANCHES OF THE CITY COUNCIL.

"_Gentlemen_:--A great object of the reform movement was to

separate municipal affairs entirely from national politics, and

in accordance with this principle I have heretofore, in all my

communications to the city council, carefully refrained from any

allusion to national affairs. I shall not now depart from this

rule further than is rendered absolutely necessary by the

unprecedented condition of things at present existing in this

city....

"After the board of police had been superseded, and its members

arrested by the order of General Banks, I proposed, in order to

relieve the serious complication which had arisen, to proceed, as

the only member left free to act, to exercise the power of the

board as far as an individual member could do so. Marshal Kane,

while he objected to the propriety of this course, was prepared

to place his resignation in my hands whenever I should request

it, and the majority of the board interposed no objection to my

pursuing such course as I might deem it right and proper to

adopt in view of the existing circumstances, and upon my own

responsibility, until the board should be enabled to resume the

exercise of its functions.

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