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

by George William Brown

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

The nation is now tired of war, and rests in the enjoyment of a harmony which has not been equalled since the days of James Monroe. When Judge Taney rendered this decision the Constitution was only seventy-two years old—twelve years younger than himself. It is now less than one hundred years old—a short period in a nation's life—and yet during that period there have been serious commotions—two foreign wars and a civil war. In the future, as in the past, offenses will come, and hostile parties and factions will arise, and the men who wield power will, if they dare, shut up in fort or prison, without reach of relief, those whom they regard as dangerous enemies. When that period arrives, then will those who wisely love their country thank the great Chief Justice, as I did, for his unflinching defense of habeas corpus, the supreme writ of right, and the corner-stone of personal liberty among all English-speaking people.

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

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

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

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

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

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

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

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