Baltimore and The Nineteenth of April, 1861 Part 12

But I am not left to form my judgment upon this great question from a.n.a.logies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are ent.i.tled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Const.i.tution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the Supreme Court of the United States, and also the clear and authoritative decision of that court itself, given more than half a century since, and conclusively establis.h.i.+ng the principles I have above stated.

Mr. Justice Story, speaking in his Commentaries of the _habeas corpus_ clause in the Const.i.tution, says: "It is obvious that cases of a peculiar emergency may arise which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused in bad times to the worst of purposes. Hitherto no suspension of the writ has ever been authorized by Congress since the establishment of the Const.i.tution. It would seem, as the power is given to Congress to suspend the writ of _habeas corpus_ in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body" (3 Story's Com. on the Const.i.tution, Section 1836).

And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of _ex parte_ Bollman and Swartwout, uses this decisive language in 4 Cranch 95: "It may be worthy of remark that this Act (speaking of the one under which I am proceeding) was pa.s.sed by the first Congress of the United States, sitting under a Const.i.tution which had declared 'that the privilege of the writ of _habeas corpus_ should not be suspended unless when, in cases of rebellion or invasion, the public safety might require it.' Acting under the immediate influence of this injunction, they must have felt with peculiar force the obligation of providing efficient means by which this great const.i.tutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.

Under the impression of this obligation, they give to all the courts the power of awarding writs of _habeas corpus_."

And again, on page 101: "If at any time the public safety should require the suspension of the powers vested by this Act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws."

I can add nothing to these clear and emphatic words of my great predecessor. But the doc.u.ments before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of _habeas corpus_. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Const.i.tution has confided the power and duty of interpreting and administering the laws, and subst.i.tuted a military government in its place, to be administered and executed by military officers. For, at the time these proceedings were had against John Merryman, the district judge of Maryland, the commissioner appointed under the Act of Congress, the district attorney and the marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offense against the laws of the United States, it was his duty to give information of the fact, and the evidence to support it, to the district attorney; it would then have become the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him, and upon the hearing of the case would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. Yet, under these circ.u.mstances, a military officer stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, a.s.sumes to himself the judicial power in the District of Maryland; undertakes to decide what const.i.tutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party without a hearing, even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.

The Const.i.tution provides, as I have before said, that "no person shall be deprived of life, liberty or property without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It provides that the party accused shall be ent.i.tled to a speedy trial in a court of justice.

These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of _habeas corpus_, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Const.i.tution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circ.u.mstances be usurped by the military power at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

In such a case my duty was too plain to be mistaken. I have exercised all the power which the Const.i.tution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions and exceeded the authority intended to be given him. I shall therefore order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfilment of his const.i.tutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

R. B. TANEY, _Chief Justice of the Supreme Court of the United States_.

APPENDIX IV.

On the 12th of July, 1861, I sent a message to the First and Second Branches of the City Council referring to the events of the 19th of April and those which followed. The first paragraph and the concluding paragraphs of this doc.u.ment are here inserted:

"THE MAYOR'S MESSAGE.

"TO THE HONORABLE THE MEMBERS OF THE FIRST AND SECOND BRANCHES OF THE CITY COUNCIL.

"_Gentlemen_:--A great object of the reform movement was to separate munic.i.p.al affairs entirely from national politics, and in accordance with this principle I have heretofore, in all my communications to the city council, carefully refrained from any allusion to national affairs. I shall not now depart from this rule further than is rendered absolutely necessary by the unprecedented condition of things at present existing in this city....

"After the board of police had been superseded, and its members arrested by the order of General Banks, I proposed, in order to relieve the serious complication which had arisen, to proceed, as the only member left free to act, to exercise the power of the board as far as an individual member could do so. Marshal Kane, while he objected to the propriety of this course, was prepared to place his resignation in my hands whenever I should request it, and the majority of the board interposed no objection to my pursuing such course as I might deem it right and proper to adopt in view of the existing circ.u.mstances, and upon my own responsibility, until the board should be enabled to resume the exercise of its functions.

"If this arrangement could have been effected, it would have continued in the exercise of their duties the police force which is lawfully enrolled, and which has won the confidence and applause of all good citizens by its fidelity and impartiality at all times and under all circ.u.mstances. But the arrangement was not satisfactory to the Federal authorities.

"As the men of the police force, through no fault of theirs, are now prevented from discharging their duty, their pay const.i.tutes a legal claim on the city from which, in my opinion, it cannot be relieved.

"The force which has been enrolled is in direct violation of the law of the State, and no money can be appropriated by the city for its support without incurring the heavy penalties provided by the Act of a.s.sembly.

"Officers in the Fire Alarm and Police Telegraph Department who are appointed by the mayor and city council, and not by the board of police, have been discharged and others have been subst.i.tuted in their place.

"I mention these facts with profound sorrow, and with no purpose whatever of increasing the difficulties unfortunately existing in this city, but because it is your right to be acquainted with the true condition of affairs, and because I cannot help entertaining the hope that redress will yet be afforded by the authorities of the United States upon a proper representation made by you. I am entirely satisfied that the suspicion entertained of any meditated hostility on the part of the city authorities against the General Government is wholly unfounded, and with the best means of knowledge express the confident belief and conviction that there is no organization of any kind among the people for such a purpose. I have no doubt that the officers of the United States have acted on information which they deemed reliable, obtained from our own citizens, some of whom may be deluded by their fears, while others are actuated by baser motives; but suspicions thus derived can, in my judgment, form no sufficient justification for what I deem to be grave and alarming violations of the rights of individual citizens of the city of Baltimore and of the State of Maryland.

"Very respectfully, "GEO. WM. BROWN, _Mayor_."

APPENDIX V.

As a part of the history of the times, it may not be inappropriate to reproduce an account, taken from the Baltimore American of December 5, 1860, of the reception of the Putnam Phalanx of Hartford, Connecticut, in the city of Baltimore. At this time it still seemed to most men of moderate views that the impending troubles might be averted through concessions and compromise. In the tone of the two speeches, both of which were, of course, meant to be friendly and conciliatory, there is a difference to be noted which was, I think, characteristic of the att.i.tude of the two sections; in the one speech some prominence is given to the Const.i.tution and const.i.tutional rights; in the other, loyalty to the Union is the theme enforced:

"The Putnam Phalanx of Hartford, Connecticut, under the command of Major Horace Goodwin, yesterday afternoon reached here, at four o'clock, by the Philadelphia train, _en route_ for a visit to the tomb of Was.h.i.+ngton. A detachment of the Eagle Artillery gave them a national salute.

"The Battalion Baltimore City Guards, consisting of four companies, under the command of Major Joseph P. Warner, were drawn up on Broadway, and after pa.s.sing in salute, the column moved by way of Broadway and Baltimore and Calvert streets to the old Universalist church-building.

"As soon as the military entered the edifice and were seated, the galleries were thrown open to the public, and in a few minutes they were crowded to overflowing.

"Captain Parks introduced Major Goodwin to Mayor Brown, who was in turn introduced to the commissioned officers of the Phalanx. Major Goodwin then turned to his command and said: 'Gentlemen of the Phalanx, I have the honor of introducing you to the Mayor of the city of Baltimore.' Mayor Brown arose, and after bowing to the Battalion, addressed them as follows:

"MAYOR BROWN'S SPEECH.

"'_Mr. Commander and Gentlemen_:--In the name and on behalf of the people of Baltimore, I extend to the Putnam Phalanx a sincere and hearty welcome to the hospitalities of our city. The citizens of Baltimore are always glad to receive visits from the citizen-soldiers of sister States, because they come as friends, and more than friends--as the defenders of a common country.

"'These sister States, as we love to call them, live somewhat far apart, and gradually become more and more separated by distance, just as sisters will be as the children marry and one by one leave the parent homestead.

"'But, gentlemen, far or near, on the Connecticut or Potomac, on the Gulf of Mexico or the great lakes, on the Atlantic or Pacific, they are sisters still, united by blood and affection, and the holy tie should never be severed. (Applause.)

"'Let me carry the figure a step further, and add what I know will meet with a response from the Putnam Phalanx, with whose history and high character I am somewhat acquainted--that a sisterhood of States, like separate families of sisters living in the same neighborhood, can never dwell together in peace unless each is permitted to manage her own domestic affairs in her own way (applause); not only without active interference from the rest, but even without much fault-finding or advice, however well intended it may be.

"'Maryland has sometimes been called the Heart State, because she lies very close to the great heart of the Union; and she might also be called the Heart State because her heart beats with true and warm love for the Union. (Loud applause.) Nor, as I trust, does Connecticut fall short of her in this respect. And when the questions now before the country come to be fairly understood, and the people look into them with their own eyes, and take matters into their own hands, I believe that we shall see a sight of which politicians, North and South, little dream. (Applause.) We shall see whether there is a love for the Union or not.

"'But there are great national questions agitating the land which must now be finally settled. One is, Will the States of the North keep on their statute-books laws which violate a right of the States of the South, guaranteed to them by the Const.i.tution of the United States? No individuals, no families, no States, can live in peace together when any right of a part is persistently and deliberately violated by the rest. Another question is, What shall be done with the national territory? Shall it belong exclusively to the North or the South, or shall it be shared by both, as it was gained by the blood and treasure of both? Are there not wisdom and patriotism enough in the land to settle these questions?

"'Gentlemen, your presence here to-day proves that you are animated by a higher and larger sentiment than that of State pride--the sentiment of American nationality. The most sacred spot in America is the tomb of Was.h.i.+ngton, and to that shrine you are about to make a pilgrimage.

You come from a State celebrated above all others for the most extensive diffusion of the great blessing of education; which has a colonial and Revolutionary history abounding in honorable memorials; which has heretofore done her full share in founding the inst.i.tutions of this country--the land of Was.h.i.+ngton--and which can now do as much as any other in preserving that land one and undivided, as it was left by the Father of his Country. I will not permit myself to doubt that your State and our State, that Connecticut and Maryland, will both be on the same side, as they have often been in times past, and that they will both respect and obey and uphold the sacred Const.i.tution of the country.' (Shouts of applause.)

"As soon as the Mayor concluded, Major Goodwin arose; but it was some time before he could be heard, such was the tremendous applause with which he was greeted. The Major is nearly ninety years of age, and is one of the most venerable-looking men in the country. Dressed in the old Revolutionary uniform, a _fac-simile_ of that worn by General Putnam, and with his locks silvered with age, we may say that his appearance electrified the mult.i.tude, and shout after shout shook the very building. Major Goodwin expressed himself as follows:

"'Mr. Mayor and gentlemen of the Baltimore City Guards, permit me to introduce to you our Judge Advocate, Captain Stuart.'

"Captain Stuart arose and spoke as follows:

"SPEECH OF CAPTAIN STUART.

"'Your Honor, Mayor Brown: For your kind words of welcome, and for your patriotic sentiments in favor of the Union, the Putnam Phalanx returns you its most cordial thanks. I can a.s.sure you, sir, that when you spoke in such eloquent terms of the value and importance of a united country, you but echoed the sentiments of the whole of our organization; and let me say, it is with great pleasure, upon a journey, as we are, to the tomb of the ill.u.s.trious Was.h.i.+ngton; that we pause for a while within a city so famed for its intelligence, its industry, its general opulence and its courtesy, as is this your own beautiful Baltimore.

"'We opine, nay, we know from what you have yourself, in such fitting terms, just expressed, that you heartily appreciate the purpose which lies at the foundation of our organization, that purpose being the lofty one of commemorating, by our military attire and discipline, the imposing foundation-period of the American Republic, of attracting our own patriotic feeling, and that of all who may honor us with their observation, to the exalted virtues of those heroic men who laid the foundations of our present national prosperity and glory--men of whom your city and State furnished, as it pleasantly happens, a large and most honorable share.

"'We come, sir, from that portion of the United States in which the momentous struggle for American freedom took its rise, and where the blood of its earliest martyrs was shed; from the region where odious writs of a.s.sistance, infamous Courts of Admiralty, intolerable taxation, immolated charters of government and prohibited commerce were once fast paving the way for the slavery of our inst.i.tutions; from the region of a happy and G.o.d-fearing people--from the region, sir, of Lexington and Concord and Bunker Hill and Croton Heights, of ravaged New London and fired Fairfield and Norwalk and devastated Danbury and sacked New Haven. And we come, Mr. Mayor, to a city and State, we are proudly aware, which to all these trials and perils of a.s.saulted New England, and to the trials and perils of our whole common country, during "the times that tried men's souls," gave ever the meed of its heartfelt sympathy, and the unstinted tribute of its patriotic blood and treasure; which, with a full and clear comprehension of all the great principles of American freedom, and a devotion to those principles that was ever ardent and exalted, signalized themselves by their wisdom in council and their prowess on the field.

"'When the devoted metropolis of New England began to feel the awful scourge of the Writ Bill, Maryland it was that then contributed most liberal supplies for its suffering people, and with these supplies those cheering, ever-to-be-remembered, talismanic words: "The Supreme Director of all events will terminate this severe trial of your patriotism in the happy confirmation of American freedom."

"'When this same metropolis soon after became the seat of war, Maryland it was that at once sent to the camp around Boston her own companies of "dauntless riflemen," under her brave Michael Cresap and the gallant Price, to mingle in the defense of New England firesides and New England homes. She saw and felt, and bravely uttered at the time, the fact that in the then existing state of public affairs there was no alternative left for her, or for the country at large, but "base submission or manly resistance"; and, Mr. Mayor, at the memorable battle of Long Island she made this manly resistance, for there she poured out the life-blood of no less than two hundred and fifty-nine of her gallant sons, who fought in her own Smallwood's immortal regiment; and elsewhere, from the St. Lawrence to the banks of the Savannah, through Pennsylvania, Virginia and both the Carolinas--devoted the best blood within her borders, and the flower of her soldiery, to the battlefields of the Union.

"'Sir, we of this Phalanx recall these and other Revolutionary memories belonging to your city and State with pride and satisfaction.

They unite Connecticut and Maryland in strong and pleasant bonds. And we are highly gratified to be here in the midst of them, and to receive at your hands so grateful a welcome as that which you have extended.