CHAPTER 21
In vain does the victim of oppression demand, in the language of our Bill of Rights and of the Constitution, a fair and impartial trial . . . In vain that he appeals to the judges and the courts.
—JOHN TYLER
Lincoln ~ Pierce ~ Tyler ~ Van Buren
The border states had a decision to make. Delaware, Maryland, Kentucky, and Missouri had white populations of roughly 2.6 million. In the recent presidential election, Lincoln had lost Maryland with 2,294 votes to 89,848 for other candidates; received 1,364 in his birth state of Kentucky to 143,703 for others; and in his neighboring state of Missouri 17,028 to 148,490, while in Delaware, 3,815 to 12,224.
No states were more conflicted than Missouri and Kentucky. Lincoln knew it well. In St. Louis alone “There were Union speeches and rebel speeches; cheers for Lincoln and cheers for Davis; Union headquarters and rebel headquarters.” Lincoln ordered Missouri Unionists to raise four regiments as quickly as possible and sent three Illinois regiments to St. Louis to protect the arsenal. A relatively junior officer, Captain Nathaniel Lyon, expertly managed the Union interest there. Lincoln authorized him to raise an army of ten thousand to maintain the authority of the United States, a force which Lyon would need to fight his own state government. Missouri governor Claiborne Jackson wrote to Jefferson Davis requesting support. Davis responded, “We look anxiously and hopefully for the day when the star of Missouri shall be added to the constellation of the Confederate States of America.” But the Union forces won the race to mobilize. Governor Jackson saw his state militia forces largely disbanded. When Captain Lyon moved on the capital, Jackson and his legislature fled Jefferson City, after passing a bill giving the governor dictatorial powers, burning the telegraph and bridges on their retreat.
Missouri was held by force; Kentucky would be a matter of finesse. Lincoln delayed recruiting soldiers in Kentucky and took no immediate steps to interfere with its residents who did business with Confederate states. Meanwhile, he quietly shipped five thousand guns to Union forces in the state, while appointing Major Anderson, a native and already a Union celebrity, commander of the Department of Kentucky, to open recruiting offices just outside of the state.
This pressing need for political sensitivity did not mean Lincoln lost his sense of humor. When a Kentucky state senator complained about the presence of troops in Cairo, Illinois, Lincoln responded “that he would certainly never have ordered the movement of troops, complained of, had he known that Cairo was in your Senatorial district.” Hay noted, “It will take the quiet satire of the note about a half an hour to get through the thick skull of this Kentucky Senator, and then he will think it a damned poor joke.”
One of Lincoln’s greatest challenges would be to fight the insurrection while balancing the constitutional protections of its citizens. After the attack on federal troops in Baltimore, and the subsequent closure of transportation and communication lines, Lincoln issued a limited suspension of habeas corpus. Simply put, habeas corpus means that if the government holds someone against his will, it must demonstrate cause to judicial authorities. The constitution provides that “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Lincoln’s order to Winfield Scott read, “You are engaged in repressing an insurrection against the laws of the United States.” If the army were to encounter resistance along the rail route from Philadelphia to Washington, “which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you, personally, or through the officer in command at the point where the resistance occurs, are authorized to suspend the writ.”
Though it may have seemed a nightmare, it was no dream when John Merryman was awoken in the dead of night. Rustled from bed by federal troops and removed to the confines of Fort McHenry, he was brought before the commandant, General George Cadwallader. Merryman was part of an organized conspiracy supportive of the Confederacy, one that had damaged railroad and telegraph wires. His friends enlisted lawyers, who prevailed upon none other than Roger Taney, chief justice of the United States Supreme Court, who issued a writ of habeas corpus ordering Cadwallader to appear in front of him at the United States Court room in Baltimore’s Masonic Hall.
The courtroom was “filled with a dense crowd,” eager to see what would happen. Taney, who likely entertained visions of embarrassing Cadwallader, would not get his chance. For fifteen minutes the chief justice and his audience waited. Finally, Cadwallader’s aide appeared, bearing a response from his commanding officer. Merryman had been arrested on the orders of the military on a charge of treason, for holding the position of a lieutenant in a secessionist company possessing arms that belonged to the United States, “and avowing his purpose of armed hostilities against the government,” and “in readiness to co-operate with those engaged in the present rebellion against the government of the United States.” Cadwallader’s communication further said that President Lincoln had authorized him to suspend the writ of habeas corpus.
The chief justice, as if he had not heard a word of the letter, interrupted the aide as he was leaving. “Have you brought with you the body of John Merryman?”*
* In Latin, habeas corpus effectively, if not literally, means “bring the body with you.”
“I have no instructions except to deliver this response to the Court,” the aide replied.
“The commanding officer then declines to obey the writ?” Taney asked.
“After making that communication, my duty is ended,” the aide said, rising and leaving the room.
The chief justice then gave his marshal the unenviable order to arrest General Cadwallader at a fortress he commanded, no less, and bring him before the court at noon the next day.
The following day, the courthouse “was besieged by an immense crowd.” Taney assumed the bench at one o’clock and asked his marshal to explain the situation. The marshal had indeed gone to Fort McHenry the previous day, identifying himself at the outer gate. The sentinel “returned with the reply, ‘that there was no answer to my card.’”
An angered Taney then announced from the bench that he had so ordered the marshal because, firstly, the president of the United States does not have the right to suspend habeas corpus, nor can he authorize a military officer to do so, and secondly, a military officer cannot arrest and detain a person for crimes against the United States.
Taney further said that the marshal could not practically arrest Cadwallader, and would not require him to attempt it further. If Cadwallader were present, however, Taney indicated that he would be fined and imprisoned. He would file a written opinion by the end of the week and call upon President Lincoln “to perform his Constitutional duty—to enforce the laws, by compelling obedience to the civil process.”
Franklin Pierce wrote to Taney commending him on his decisions. Taney thanked him, saying the ex-president’s letter gave him “sincere pleasure. In the present state of the public mind inflamed with passion and seeking to accomplish its object by force of arms, I was sensible of the grave responsibility which the case of John Merryman cast upon me. But my duty was plain—and that duty required me to meet the question . . . without evasion, whatever might be the consequences to myself.” The chief justice revealed himself an opponent of Lincoln’s war policy and supporter of secession. He hoped “the north as well as the south will see that a peaceful separation with free institutions in each section is far better than the union of all the present states under a military government and reign of terror—preceded too by a civil war with all its horrors,” which “may well prove ruinous to the traitors as well as the reconquered—but at present I grieve to say, passion and hate sweep every thing before us.”
John Tyler, who had been unanimously chosen by the Virginia Convention to serve in the Provisional Confederate Congress, campaigned for a seat in the permanent Congress. In his address to the people, he spoke out against Lincoln’s habeas corpus suspension. He charged, “In vain does the victim of oppression demand, in the language of our Bill of Rights and of the Constitution, a fair and impartial trial . . . In vain that he appeals to the judges and the courts. The venerable Chief-Justice, in his attempt to restore the reign of the law and the Constitution, is mocked at, and his authority despised . . . Equally vain that the citizen claims his house to be his castle. Armed men, without authority of law, arouse him from his slumbers at midnight.”
In Lincoln’s April 15 proclamation, he had called Congress into special session to meet on July 4. When they convened, he addressed his habeas corpus suspension, pointing out that it had been “exercised but very sparingly.” He asked, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case would not the official oath be broken, if I allow the government to be overthrown, when it was believed that disregarding the single law would tend to preserve it?” Habeas corpus could be suspended in cases of “rebellion or invasion,” if required by “public safety.” As the “provision was made for a dangerous emergency, it cannot be believed that the framers of that instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”
Once frighteningly empty, Washington soon swelled with soldiers, and a camp of one hundred thousand amassed. Nicolay recorded “the everywhere-ness of uniforms and muskets.” Francis Blair wrote to Van Buren, “what you would feel to see daily great masses of troops passing the northern pillars of the White House . . . many of the public buildings are filled with soldiers as also the public squares.”
One reporter remembered, “Washington was a vast citadel,” with regiments “constantly on the march through the city.” There was the Sixth Massachusetts in the Senate; the Eighth Massachusetts under the dome; the Seventh New York in the House. The basement of the Capitol was a bakery for the army, the crypt a storage space for flour. Inspecting the Sixth Massachusetts, Hay wrote, “The contrast was very painful between the grey haired dignity that filled the Senate Chamber when I saw it last and the present throng of bright-looking Yankee boys . . . scattered over the desks chairs and galleries, some loafing, many writing letters, slowly and with plough hardened hands . . . while [a Congressman] stood patient by the desk and franked for every body.”
Cities North and South were growing accustomed to the presence of soldiers. “It is a thrilling, melting sight to see the entrances into the city of troops by the trains from all parts of the southern country, coming, as they appear to feel, to the rescue of old Virginia,” wrote Julia Tyler from Richmond to her mother on June 16. She continued to revel in her husband’s, and by extension her own, reentry to prominence. Julia gushed about the two men to whom she had been introduced at church that morning—Jefferson Davis and General Robert E. Lee.
With the Union capital increasingly secure and the military coming together, the administration turned their attention toward offensive action. To General James Fry, who became an active history writer after the war, it seemed “the capitals of the Union and of the Confederacy stood defiantly confronting each other.”
On June 29 a special meeting of the cabinet was to discuss an attack on Manassas, Virginia, an important railroad junction on the way to Richmond. Winfield Scott opposed the plan entirely. He believed the priority should be advancing south along the Mississippi, cutting the Confederacy in two, and squeezing them with the naval blockade. General Irvin McDowell, who would lead the movement against Manassas, expected to encounter twenty-five thousand Confederates. That number could not be reinforced by more than ten thousand men, provided Union generals in northwestern Virginia could pin down Confederate general Joseph Johnston and his men.
As the army prepared for its first major battle, Lincoln was focused on his July 4 message to Congress. Thinking seriously about the war, he determined that the Union cause was “whether a free and representative government had the right and power to protect and maintain itself.”
The night before the special session, Lincoln visited with Orville Browning, senator from Illinois and longtime friend. “Browning,” he confided, “of all the trials I have had since I came here, none begin to compare with those I had between the inauguration and the fall of Fort Sumter. They were so great that could I have anticipated them, I would not have believed it possible to survive them.” By the end of the special session, Congress had authorized one million men and five million dollars for the war effort, more than Lincoln had asked for.
On July 4, John Tyler addressed Confederate volunteers near Jamestown, offering that if young enough he would join and fight. Meanwhile on that very night, there was a splendid party at Tyler’s summer home, Villa Margaret in Hampton, only he had not been invited. The New York Heraldreported EX-PRESIDENT TYLER’S HOUSE THE SCENE OF NOVEL ENJOYMENT.
The home “contains all the luxurious furniture as Mr. Tyler left it, mostly of a magnificent description.” One item, his Confederate Flag, was removed, shipped to New York, and replaced with the Stars and Stripes. Rank and file Union soldiers camped in rows of tents on his lawn. “What must the venerable traitor Tyler’s sensations be,” the paper wondered, as the Union army relaxed in his easy chair and velvet sofas, enjoying his books and tobacco. Another newspaper crowed that Tyler would soon be forced “from his winter quarters at the ancient little city of Williamsburg. There is no rest for the wicked.”