CHAPTER VII.

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

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

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

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

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

_Chief Justice._--The commanding officer, then, declines to obey the writ?

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

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

The order was accordingly issued as directed.

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

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

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

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

Roger B. Taney was one of the most self-controlled and courageous of judges. He took his seat with his usual quiet dignity. He called the case of John Merryman and asked the marshal for his return to the writ of attachment. The return stated that he had gone to Fort McHenry for the purpose of serving the writ on General Cadwallader; that he had sent in his name at the outer gate; that the messenger had returned with the reply that there was no answer to send; that he was not permitted to enter the gate, and, therefore, could not serve the writ, as he was commanded to do.

The Chief Justice then read from his manuscript as follows:

I ordered the attachment of yesterday because upon the face of the return the detention of the prisoner was unlawful upon two grounds:

1st. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of _habeas corpus_, nor authorize any military officer to do so.

2d. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

I forbore yesterday to state the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the clerk of this court, in the course of this week.

The Chief Justice then orally remarked:

In relation to the present return, it is proper to say that of course the marshal has legally the power to summon the _posse comitatus_ to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in the discharge of that duty by a force notoriously superior to the _posse_, and, this being the case, such a proceeding can result in no good, and is useless. I will not, therefore, require the marshal to perform this duty. If, however, General Cadwallader were before me, I should impose on him the punishment which it is my province to inflict--that of fine and imprisonment. I shall merely say, to-day, that I shall reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall direct the clerk to forward them with these proceedings to the President, so that he may discharge his constitutional duty "to take care that the laws are faithfully executed."

It is due to my readers that they should have an opportunity of reading this opinion, and it is accordingly inserted in an Appendix.

After the court had adjourned, I went up to the bench and thanked Judge Taney for thus upholding, in its integrity, the writ of _habeas corpus_. He replied, "Mr. Brown, I am an old man, a very old man" (he had completed his eighty-fourth year), "but perhaps I was preserved for this occasion." I replied, "Sir, I thank God that you were."

He then told me that he knew that his own imprisonment had been a matter of consultation, but that the danger had passed, and he warned me, from information he had received, that my time would come.

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

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

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

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

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

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

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

[Footnote 14: 4 Wallace Sup. Court R. 2.]

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

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

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

Nearly all who approved of the war regarded these things as an inevitable military necessity; but those who disapproved deeply resented them as unwarrantable violations of sacred constitutional rights. The consequence was that friendships were dissolved, the ties of blood severed, and an invisible but well-understood line divided the people. The bitterness and even the common mention of these acts have long since ceased, but the tradition survives and still continues to be a factor, silent, but not without influence, in the politics of the State.

History repeats itself. There were deeds done on both sides which bring to mind the wars of England and Scotland and the border strife between those countries. There were flittings to and fro, and adventures and hairbreadth escapes innumerable. Soldiers returned to visit their homes at the risk of their necks. Contraband of every description, and letters and newspapers, found their way across the border. The military lines were long and tortuous, and vulnerable points were not hard to find, and trusty carriers were ready to go anywhere for the love of adventure or the love of gain.

The women were as deeply interested as the men, and were less apprehensive of personal consequences. In different parts of the city, not excepting its stateliest square, where stands the marble column from which the father of his country looked down, sadly as it were, on a divided people, there might have been found, by the initiated, groups of women who, with swift and skillful fingers, were fashioning and making garments strangely various in shape and kind--some for Northern prisons where captives were confined, some for destitute homes beyond the Southern border, in which only women and children were left, and some for Southern camps where ragged soldiers were waiting to be clad. The work was carried on not without its risks; but little cared the workers for that. Perhaps the sensation of danger itself, and a spirit of resistance to an authority which they refused to recognize, gave zest to their toil; nor did they always think it necessary to inform the good man of the house in which they were assembled either of their presence or of what was going on beneath his roof.

The women who stood by the cause of the Union were not compelled to hide their charitable deeds from the light of day. No need for them to feed and clothe the soldiers of the Union, whose wants were amply supplied by a bountiful Government; but with untiring zeal they visited the military hospitals on missions of mercy, and when the bloody fields of Antietam and Gettysburg were fought, both they and their Southern sisters hastened, though not with a common purpose, to the aid of the wounded and dying, the victims of civil strife and children of a common country.