'History" Trails County Historical Society

This publication is indexed in the PERiodical Source Index Agriculture Building published by the Allen County Public Library 9811 Van Buren Lane Foundation (PERSI). Cockeysville, Md. 21030

ISSN 0889-6186 Editors: JOHN W. McGRAIN and WILLIAM HOLLIFIELD

VOL. 24 WINTER 1989-1990 NO. 2 The Merrymnn Aff ir

by Thomas F. Cotter

During the Civil War there was a popular Southern song entitled "." This was in reference to a case heard before the federal courts in . It started as a local issue but developed national ramifications when it brought President Lin- coln into direct conflict with Chief Justice Taney. When took the oath of office on March 4, 1861, the country was on the verge of a crisis. Seven Southern states had already seceded from the Union and others were threatening to follow. On April 15, 1861, the President took immediate, unprecedented measures. He issued a proclamation declaring the existence of an insurrection and called on the states to place 75,000 militia into federal service. Many expected the new Republican administration to challenge the Supreme Court be- cause of its decision in the Dred Scott case.' In his inaugural address, Lincoln stated, "the candid citizen must confess that if the policy of the government . . . is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers . . . having practically resigned their govern- ment into the hands of the eminent tribunal." The first skirmish between Lincoln and the judiciary occurred just two months after his inauguration. On April 19, 1861, Southern sympathizers in Baltimore at- tacked a regiment of Massachusetts volunteers en route to Wash- ington.2 The soldiers were transferring from one train to another when met with a barrage of stones and bricks. Fearing for their Portrait of John Merryman in possession of Merryman family. safety, the soldiers fired into the crowd. The riot resulted in the death of 12 civilians and four soldiers. Later that day Baltimore's leading citizens held a meeting in Monument Squares A delega- had formed in January 1861 under state militia laws. It had a tion met with President Lincoln as a result of this meeting, complement of 53 and consisted mostly of "States Rights gentle- men."8 requesting him not to send any more troops through Baltimore. On April 22, 1861, Lieutenant John Merryman of the While city officials were awaiting news from the delegation in Baltimore County Horse Guards received a written message. It Washington, reports began circulating that Pennsylvania troops was from Major General G. H. Steward, commanding officer of the were moving southward toward Baltimore. To prevent these militia forces in Baltimore. The general ordered Lieutenant Mer- ryman to troops from reaching the city, the mayor ordered the destruction of several railroad bridges.4 The governor and police commission- follow the retreating Pennsylvania troops and destroy ers concurred in this decision. all bridges at intervals of one or two miles.' The following morning city officials received a message from the Lieutenant Merryman obeyed the order and destroyed a bridge of delegation in Washington. They stated that President Lincoln the Northern Central Railroad near Cockeysville, about 14 miles agreed not to send any more troops through Baltimore. He recalled north of Baltimore. the Pennsylvania troops, whose movement towad the city had After learning of the destruction of this bridge, Lincoln decided stopped because of one of the destroyed railroad bridges.3 to take drastic action. He issued an order to General Winfield Several different units participated in the destruction of the Scott, general-in-chief of the army. The President instructed bridges. One such company, the Baltimore County Horse Guards, General Scott PAGE 6 HISTORY TRAILS WINTER 1989-1990

Justice Taney from General Cadwalader. The letter revealed that Merryman belonged to a group that advocated armed hostility and treason against the . Additionally, Merryman made public statements of his willingness to cooperate with secession- ist forces. The general concluded the letter by declaring his authorization by President Lincoln to suspend the writ of habeas corpus. After reading General Cadwalader's letter, Taney inquired of the officer whether he had brought along John Merryman. The officer replied, "I have no instructions except to deliver this re- sponse to the court."" Taney ordered General Cadwalader to bring the defendant to court to stand trial. Since an order of the court was defied, Taney directed a writ of attachment served on the general. The writ commanded him to appear in court the next day or face charges of contempt. At this point Taney anticipated being arrested himself for antagonizing the military authorities. The next morning, as he left his daughter's house, Taney remarked that he would likely be imprisoned in Fort McHenry before night. He was nonetheless going to court to do his duty.12 When Taney arrived in court that day he asked if the writ of attachment had been served on General Cadwalader. A marshall informed Taney that his entrance to the fort in order to serve the writ was denied. Taney then informed the marshall that it was within the court's power to summon a posse in order to enforce the writ. However, the court excused him from doing his duty because of the overwhelming strength of the fort's garrison. With all of the avenues of legal authority exhausted, Taney declared the arrest of John Merryman to be illegal upon two premises. First, the President had no power to suspend a writ of habeas corpus. Second, a military officer had no right to arrest a person not subject to the articles of war. On June 1, 1861, Taney filed his written opinion with the court and forwarded a copy to President Lincoln. It declared Abraham Lincoln portrait, courtesy of the National Portrait Gallery. 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 to take whatever steps necessary, including the charges, without any proof, so far as it appears; he is suspension of the writ of habeas corpus, to suppress seized as a prisoner and kept in close confinement; any rebellion against the United States." and when a habeas corpus is served on the com- Lincoln took other actions as well to ensure that Maryland would manding officer, requiring him to produce the pris- not secede from the Union. He placed the state under military rule oner before a Justice of the Supreme Court, in order and arrested several government officials. Those arrested in- that he may examine the legality of the imprisonment, cluded the mayor and police commissioners of Baltimore and the answer by the officer is that he is authorized by several members of the state legislature.' the President to suspend the writ of habeas corpus, On May 25, 1861, federal troops acting on orders from General and on that ground, he refuses obedience to the writ. 13 William H. Keim of Pennsylvania, arrested John Merryman. This Taney was very critical of President Lincoln for claiming the occurred at Hayfields, the ancestral home of the Merryman family right to suspend the writ of habeas corpus. In Taney's view, Article in Baltimore County. The soldiers escorted Merryman to Fort 1, Section 9 of the Constitution gives the power to Congress McHenry and imprisoned him for suspicion of destroying railroad exclusively. The opinion noted that President Lincoln exceeded his bridges used in transporting federal troops. authority. Instead of performing his duty of assisting the judici- The announcement of Merryman's arrest caused much excite- ary, the President, according to Taney, ignored the judicial ment in Baltimore as local newspapers reported the details. IS Later authorities and substituted military government. If such military that day Merryman's attorneys went to see Chief Justice of the usurpation is permitted, Taney concluded, "the people of the Supreme Court Roger B. Taney. They presented him with a United States are no longer living under a government of laws, but petition for a writ of habeas corpus. every citizen holds life, liberty, and property at the will and Taney was 84 years of age, with a long and illustrious career pleasure of the army officer in whose military district he may already behind him. It was he who wrote the opinion of the court happen to be found."" in the Dred Scott case. As part of his judicial duties, he presided Taney further emphasized that even if a person is arrested by over the United States Circuit Court for the District of Maryland. regular judicial process that person could not be imprisoned by Acting on the petition of Merryman's attorneys, Taney issued a military authorities. He further stated that the Constitution writ of habeas corpus. He directed it served on General George provides for a "right to a speedy and public trial by an impartial Cadwalader, commanding officer of Fort McHenry. It ordered the jury . . . and to be confronted with the witnesses against him."' general to appear in United States Circuit Court on May 27, 1861, Taney contended that the President had an obligation to "take care accompanied by John Merryman. that the laws be faithfully executed." The ChiefJustice maintained On the morning of May 27, 1861, Chief Justice Taney arrived that if Merryman committed any treasonable offense, it was within in Baltimore. He entered the Masonic Hall where the federal courts the jurisdiction of the federal civilian authorities. The occupied the first floor. Within a short time, an officer from Fort Constitution, declared Taney, gives people the right to be secure McHenry appeared before the court. He delivered a letter to Chief in their houses and effects against unreasonable searches and WINTER 1989-1990 HISTORY TRAILS PAGE 7 seizures. Taney concluded his opinion by claiming that he exer- cised only that power given to him by the Constitution. A much stronger force, however, resisted his power. Soon after his opinion in the Merryman case became public, Taney received verbal attacks from the Northern press. "Taney will go through history as the judge who dragged his robes in the pollution of treason," wrote the Tirnes.18 'The Merryman decision was evidence that the Chief Justice's faculties were gone," claimed the Chicago Tribune." An editorial in the Washing- ton Evening Star and National Intelligencer did sympathize to a certain degree with the decision. Taney's opinion was, according to the paper, "correct . . . but ignoring the emergency."18 President Lincoln made the first public defense of his actions in a July 4th message to a special session of Congress. He stated Soon after the first call for militia, I felt it my duty to authorize the commanding general in proper cases . . . to suspend the privilege of the writ of habeas corpus, or in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety . . . at verbal request . . . this authority has been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done . . . are questioned; and I have been reminded by a high quarter that one who is sworn to "take care that the laws be faithfully executed" should not himself be the one to violate them. Of course I gave some consideration to the question of power before I acted in this matter. Are all the laws but one to go unexecuted, and the government itself go to pieces? In my opinion, I violated no law. The provision of the Chief Justice Roger Brooke Taney, courtesy of the National Portrait Gallery. Constitution states 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 marshal1.22 The United States Attorney indicted Merryman for require it." I decided that we have a case of rebellion, treason and the case was remitted to federal district court in and the public safety does require the qualified Maryland. Merryman posted a $20,000 release bond as a guaran- suspension of the writ of habeas corpus, which I tee that he would not resume his pro-secessionist activities. The authorized be made. Now it is insisted that Congress, government eventually dropped the charges and the case never and not the executive, is vested with this power. But came to trial. the Constitution itself is silent as to which, or who, is Throughout the rest of the war, John Merryman continued to to exercise the power."' support the Southern cause. In 1862, federal troops arrested In his own opinion, United States Attorney General Edward Merryman again but held him only briefly. In 1864, troops Bates denied Taney's claim that President Lincoln had violated his guarding the railroad depot near his home physically assaulted constitutional duty. The executive branch, he insisted, was not him. Merryman's popularity after the war enabled him to achieve subordinate to the judicial but was equal. He insisted that many honors. These included his appointment as Maryland State because the courts were too weak to suppress a rebellion, it Treasurer and his election to the state legislature. He later became became the duty of the President. Therefore, if the President President of the National Agricultural College.23 His enduring considers the suspension of the writ of habeas corpus necessary, gratitude to Chief Justice Taney was obvious in the naming of his he may order it done. son — Roger Brooke Taney Merryman.24 During a United States Grand Jury investigation of the Balti- Beneath the legal arguments, there was a basic ideological more riots, testimony of several witnesses implicated Merryman in difference between President Lincoln and Chief Justice Taney. the bridge destruction. One witness stated that he saw Merryman Lincoln believed that the preservation of the Union was of primary burning the bridges. He testified that Merryman had said, "God importance. The federal government should, in Lincoln's view, damn them, we'll stop them from coming down here and stealing temporarily suspend civil liberties to achieve that goal. Lincoln our slaves."2° This was supposedly in reference to the Northern claimed he had "lawful discretionary power to arrest and hold in troops. Another witness claimed that he saw Merryman and other custody persons known to have criminal intercourse with the armed men destroying bridges and telegraph poles. He testified insurgents."25 Taney considered the dissolution of the Union less that Merryman had said "he would have destroyed the bridges terrible than the violence which was necessary to preserve it by even if [he] had no authority to do so."2' John Merryman never civil war. denied destroying the bridges. He insisted that he was only doing Although never reached the Supreme his duty as an officer of the state militia and following orders from Court, many consider it to be a milestone in the history of his superiors. constitutional law. Five years later in the Ex parte Milligan John Merryman was incarcerated for several more weeks after decision, the Supreme Court affirmed Taney's position in the the Taney decision before he was turned over to civilian authori- Merryman case. In October 1864, the military commander of ties. In the summer of 1861, Attorney General Bates sent a letter Indiana arrested a Southern sympathizer named L. P. Milligan. He from Secretary of War Cameron to the District Attorney for Mary- was convicted of treason by a military tribunal. Milligan petitioned land. In this letter Secretary Cameron directed the commanding the federal circuit court for a writ of habeas corpus. The judges, officer at Fort McHenry to deliver Merryman into the custody of the disagreeing, certified the question of law to the Supreme Court. By PAGE 8 HISTORY TRAILS WINTER 1989-1990 a five-to-four decision the Justices held that Milligan had been unlawfully convicted. They asserted that Lincoln had acted un- constitutionally in setting up a military commission in a place where the civil courts were open. Justice Davis, writing the opinion of the court, stated that, "Martial law cannot arise from a John Merryman threatened invasion. The necessity must be actual and present; the invasion real, such as effectively closes the courts and deposes by Dr. C. Nicholas G. Ridgely the civil administration."" The debate concerning who had the power to suspend the writ of habeas corpus continued for years. NOTE: The Merryman song was published in Baltimore during the The courts often followed the Merryman decision. Since the Civil summer of 1861 and went through at least two printings, one on War, the executive department has suspended the writ of habeas undecorated yellow paper, another on pink paper with an omamen- corpus only with the consent of Congress. The quesiton has not tal border. The song was unsigned but its authorship is proved by arisen again and to this day remains unanswered.27 a notation on another known copy. Text courtesy of Erick F. Davis. In actuality, the Merryman case resulted in a victory for both - J.W.M. the President and the Chief Justice. Lincoln succeeded in sup- pressing the rebellion in Maryland and preserving the Union. Taney, on the other hand, had his judgment in the case vindicated Aix - "Old Dan Tucker." by the Supreme Court five years later. ®® NOTES 1. Dred Scott v. Sanford 19 Howard 393 (1857). The decision John Merryman, the Marylander, declared that Dred Scott, a slave, was not a citizen, had no Would not stoop to Lincoln's pander, rights in court and, as the property of his master, could be Firm old patriot, good old soldier, taken anywhere in the United States. To spurn at vice there is no one bolder. 2. , Baltimore and the 19th of April, 1861 (Baltimore: University Press, 1887), 42-52. Chorus - Get out of the way 3. Baltimore City Council, Journal of Proceedings First Branch, Justice haters, April 20, 1861 (Department of Legislative Reference, City Hall, No favors asked Baltimore). Of Lincoln traitors. 4. Brown, 58-59. 5. Ibid., 61. You took him off from the heart of his family, 6. Erick F. Davis, 'The Baltimore County Horse Guards", History You locked him up in Fort McHenry, Troilc, (Winter, 1975-76). Enjoying peace on his own plantation, 7. Ibid. You forced him to vile degradation. 8. 37th Congress, 1st session, 3 H. R Exec. Doc. No. 6: Procla- mation authorizing the suspension of the writ of habeas corpus. Chorus - Get out of the way, &c. See also: The War of the Rebellion - Official Records (Washing- ton, D.C., 1880-1901) Series 1, 11, 601-602. (Habeas Corpus Be off you villians, be off you traitors, is that document of law requiring a person to be brought before He'll mash you all like boiled potatoes, a judge or court to stand trial.) He'll skin you all you vile old musk rats, 9. Brown, 97-102. And of your hide he'll make good door mats. 10. Baltimore Sun, May 27, 1861, p. 1. 11. Ex parte Merryman ,17 Federal Cases 144, No. 9487 (1861). Chorus - Get out of the way, &c. 12. Samuel Tyler, Memoir of I?oger B. Taney (Baltimore: John Murphy and Company, 1872), 427. You may eat your fine good dinners, 13. Ex parte Merryman, 17 Federal Cases 144, No. 9487 (1861). Drink champagne, you vile old sinners, 14. Ibid. Rob the widow, kill the orphan, 15. Ibid. Bury the Country in a coffin. 16. New York Times, May 29, 1861, p. 4, 17. Chicago Tribune, May 30, 1861, p. 1. Chrous - Get out of the way, &c. 18. Washington Evening Star and National Intelligencer, May 29, 1861, p. 2. Justice with her sword will batter you, 19. Carl Sandburg, Abraham Lincoln, The War Years (New York: Davis with his word will scatter you, Harcourt, Brace and World, Inc., 1939), 1:281. Beauregard wil beat you like a pan-cake, 20. David Creamer, "Diary of the Baltimore Riots, 19 April 1861 The South will give you a touch of the heart-ache. Notes of Evidence Before the U.S. Grand Jury, June Term" (Maryland Historical Society, MS. 1860). Chrous - Get out of the way, &c. 21. Ibid. 22. Attorney General's Letter Books, Edward Bates to William Addison, July 12, 1861. 23. J. Thomas Scharf, The History of Baltimore City and County (Philadelphia: Louis H. Everts, 1881), p. 885. 24. Jean H. Baker, The Politics of Continuity: Maryland Political Parties from 1858 to 1870. (Baltimore: Johns Hopkins Univer- sity Press, 1973), p. 60. Mr. J. M. Fowble has in his possession an old cow bell that from 25. William F. Duker, A Constitutional History of Habeas Corpus the date, 1750, stamped on it, makes it 135 years old. It was (Westport, Connecticut: Greenwood Press, 1980), p. 141. plowed up by his son. No doubt this is the oldest bell of its kind 26. Ex parte Milligan, 71 U. S. 2 (1866). in the county. 27. Ibid. - Baltimore County Union, January 31, 1885