Coming Fury, Volume 1 (58 page)

When he first learned that Governor Hicks was convening the legislature, Lincoln seriously considered arresting the entire membership in order to prevent the meeting. The matter was discussed with the cabinet, and Lincoln at length rejected it. On April 25 he made this rejection official in a letter to General Scott: the dispersion of the legislature, he wrote, “would
not
be justifiable, nor efficient for the desired object.” He set forth the reasons briefly: “First, they have a clearly legal right to assemble; and we cannot know in advance that their action will not be lawful and peaceful. And if we wait until they shall
have
acted, their arrest or dispersion will not lessen the effect of their action. Secondly, we
can
not permanently prevent their action.”

Two days later he followed this with another note to the old general: “You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which is now (or which will be) used between the city of Philadelphia and the city of Washington, via Perryville, Annapolis City and Annapolis Junction, you find resistance 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 that writ.”
⁶

This was not just talk. Military rule descended on the Baltimore area. People could be arrested (and a good many were)
simply because an army officer believed that they were up to something hostile, and the courts could not help them. Mayor Brown, who was bitterly opposed to all of this, wrote afterward that the mere display of Confederate colors—in shop windows, on children’s garments, or wherever—was prohibited, and he specified other items of harshness: “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.… 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.” The mayor went on to say that Unionists generally approved of these steps but that many people were greatly worried by this loss of constitutional liberties; in the arguments, friendships were resolved, close relatives became estranged, “and an invisible but well-understood line divided the people.”

To this situation General Butler made massive contributions. (In point of fact, Butler was exactly the sort of man the founding fathers had in mind when they stiffened the Constitution to prevent an abuse of military authority.) Early in May, Butler took troops over to occupy Relay House, just southwest of Baltimore, the vitally important junction point where the railroad line to Washington joined the Baltimore & Ohio Railroad’s main line to the West. At Relay House, Butler heard that treason was rife in Baltimore, and that Federal and State laws were being flouted by, as he put it, “some malignant and traitorous men.” He promptly marched troops into Baltimore, seizing and fortifying the commanding height of Federal Hill overlooking the harbor and the business district, and he issued a proclamation whose general effect was that the Federal power was now in charge. He found and confiscated quantities of arms, arrested (among other people) the well-known inventor and builder of railway locomotives, Ross Winans, and took possession of a contraption Winans had built which the daily press described as a “steam gun.”
⁷

Butler was enjoying himself. Carl Schurz saw him at this time and reported that the man was little less than fantastic; he wore the gaudiest of militia uniforms, set off with much gold braid, and adopted an overdone air of high authority, a curt and peremptory
manner of speech and action, which struck Schurz as exactly the sort of thing a certain type of actor would indulge in on the stage. After every passage-at-arms with his subordinates, Butler would glance around to make sure that his visitor was duly impressed. Still, Schurz confessed, Butler was quite an operator, and with all of his foibles he kept things moving.
⁸

General Scott had not authorized the occupation of Baltimore, and as a stiff old regular he found Butler hard to take, anyway; he sent the man an angry rebuke, telling him to issue no more proclamations and remarking that it was a Godsend that the move had not touched off a wholesale fight, and on May 15 Butler was relieved of his command and sent down to take charge of the quieter post at Fort Monroe. He took with him an admonitory note from the general-in-chief: “Boldness in execution is nearly always necessary, but in planning and fitting out expeditions or detachments, great circumspection is a virtue.” Butler’s place at Baltimore was taken by Major General George Cadwalader, who was a much milder man than Butler but who nevertheless quickly got himself involved in a case that the lawyers would study and talk about for many generations to come.
⁹

For although the government had removed Butler, it had not disavowed the things he had done. What was afflicting Maryland just now was not really Ben Butler at all; it was the growing weight of Federal authority, directed by an administration that would assert and use any power necessary to ensure the government’s survival. Federal troops remained in control, and military law continued to be applied; and in this month of May a man named John Merryman was in Baltimore getting recruits for a military company that was going to go south and fight for the Confederacy. Cadwalader heard about him, or at least his subordinates heard about him, and Merryman was arrested and locked up in Fort McHenry—that historic fort where Francis Scott Key had seen a starry flag by the dawn’s early light and had made a song about it—and Merryman’s lawyers went to Chief Justice Taney, who was then in Baltimore, to get him out.

The arrest of Merryman was precisely the kind of act which the government could not, in any ordinary circumstances, perform, and there were laws to govern such cases. Justice Taney promptly
issued a writ of habeas corpus, and a United States marshal ventured off to serve it; could not, because the way was blocked by soldiers; returned to the Chief Justice with a report from General Cadwalader stating that Merryman appeared to be guilty of treason and that he, General Cadwalader, was authorized by the President to suspend the writ in such cases. Taney cited the general for contempt, and the marshal went to serve an attachment on him, only to find once again that armed soldiers made his job impossible. Taney could do nothing further, except to announce that Merryman ought to be discharged immediately and that “the President, under the Constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.”

But Lincoln controlled the soldiers and Taney did not, and the arrest stuck. Explaining his position in a message to Congress a few weeks after this happened, Lincoln discussed the legal points briefly. The Constitution, he said, provided that the privilege of the writ might be suspended in cases of rebellion or invasion if the public safety required it; the government (that is, the President) had “decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ” and that was that. Furthermore: “Are all the laws,
but one
, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Merryman would remain under arrest (for a time, at least), as would many others, and the state of Maryland would remain in the Union.
¹⁰

Some time later Governor Hicks reviewed the whole business in a speech before the United States Senate, to which he was elected in the middle of the war. The act of suspension, he said, was necessary. “I believe that arrests and arrests alone saved the State of Maryland not only from greater degradation than she suffered, but from everlasting destruction,” he said. “I approved them then, and I approve them now; and the only thing for which I condemn the Administration in regard to that matter is that they let some of these men out.”
¹¹

The drastic quality of Lincoln’s policy needed to be realized. Democratic governments, both before and since, have died of less. Lincoln had been ready to disband a popular legislature by force of arms, refraining not so much because it was wrong as because it did
not seem to be expedient. He had suspended, in one troubled area, all of the hard-won protections which law erects between the helpless citizen and the government—courts, trial by jury, the intricate due-process safeguards against arbitrary arrest and imprisonment. He had flatly defied the Supreme Court, using the army to nullify the court’s pronouncements. Years earlier he had written that it is the quality of revolutions to break up the old lines and the old laws and to make new ones. Now he was showing how this worked.

Some of his enemies could see the necessity for this sort of action and wanted his principal rival to copy it. The editor of the Richmond
Examiner
, reflecting on the tasks that lay ahead of the Confederate government, wrote a paragraph that Lincoln might have adopted as an argument in his own justification.

“No power in executive hands can be too great, no discretion too absolute, at such moments as these,” said an editorial in the
Examiner
on May 8. “
We need a dictator
. Let lawyers talk when the world has time to hear them. Now let the sword do its work. Usurpations of power by the chief, for the preservation of the people from robbers and murderers, will be reckoned as genius and patriotism by all sensible men in the world now and by every historian that will judge the deed hereafter.”
¹²

Whatever might be said, either by sensible contemporaries or by latter-day historians, the thing worked in Maryland, and the chief reason why it worked may have been that Maryland did after all contain a pro-Union majority. What was done—by President Lincoln, by Governor Hicks, even by the ineffable General Butler—was effective because in the long run it somehow corresponded with what most of the people dimly wanted. Ruthlessness, then, is acceptable as long as it is ultimately acceptable to the majority … the shakiest of moral principles, but the one on which a great war began.

Visiting the capital of the Confederacy a little more than a fortnight after the fall of Fort Sumter, Mr. Russell, of the London
Times
, sensed that he was looking at a people who might make a fabulous war. He disliked much that he saw, to be sure. He found Montgomery sultry and primitive, as dull and lifeless as a town in the middle of Russia, and the universal chewing of tobacco appalled him almost as much as the slave pens and the callous crowds at the slave auctions; yet the men who lived amid all of this were prodigious. They were tall, lean, and uncouth, but “they are not peasants,” and indeed Russell believed that a real peasant or even an authentic dull-eyed rustic, in the European understanding of the word, was nowhere to be found. The poorest men dressed and acted like the wealthiest, even though dress and manner might be a poor imitation, and both rich and poor expressed anger at the insulting tyranny that was being attempted by the government at Washington.

Significantly, everyone seemed to feel that this government represented a malignant fraction rather than the Northern people as a whole. (The South had its delusions as well as the North this spring.) Men spoke of the Federal authorities as “Lincolnites,” “Black Republicans,” “Abolitionists,” and so on, as if usurpers held power in Washington, destroying national unity even before secession took place. The Confederate Congress Russell found as impressive as the people themselves. Its capitol was “one of the true Athenian Yankee-ized structures of this novo-classic land,” and its members somehow looked like old-time Covenanters, massive, earnest men inspired by a strong faith; altogether, “they were like the men who first conceived the great rebellion which led to the independence of this wonderful country—so earnest, so grave, so sober and so vindictive.” In this, Russell agreed with Varina Davis, who was writing to a friend that the men in this Congress “are the finest looking set of men I have ever seen collected together—grave, quiet and thoughtful looking men with an air of refinement.” Mrs. Davis felt that they offered a refreshing contrast to the Northerners who sat in Congress at Washington.

Congress impressed Russell more than the President did. He found Mr. Davis slight, erect, clearly a gentleman, wearing “a rustic suit of slate-colored stuff” with a black silk handkerchief at his neck; a man with a reserved, rather severe manner, with a square jaw, high cheekbones, and thin, flexible lips, one of the deep-set eyes
nearly covered with a film—the man suffered from excruciating attacks of neuralgia, and had lost the sight of this eye. Davis seemed confident and he spoke with decision, but Russell thought he looked haggard and worn. Here again he agreed with Mrs. Davis, who felt that the President was working altogether too hard and said that he protested against the time he lost at meals; “he overworks himself and all the rest of mankind.”
¹

There was reason for overwork, for much had to be done. The great surge of Southern enthusiasm for the war was unchecked by any realization of what actual war was going to mean, and although Davis and the professional soldiers knew very well that the new troops needed much more training and equipment than it was yet possible to give them, the public at large was impatient for action. In Richmond, Lee was trying desperately to get such fundamental necessities as gun carriages, ammunition, and the machinery to make cartridges and percussion caps. People were urging him to invade the North, although he knew this to be impossible in view of “the want of instruction of the men and the inexperience of officers,” and one patriot complained to Secretary of War Walker that Lee “wishes to repress the enthusiasm of our people,” and asked: “Is our cause not in danger of demoralization?”
²