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.