by Bruce Catton
There were plenty of problems to occupy Lincoln’s mind even without the job hunters. The soldiers who were so desperately needed were on the way, but getting them would compel the government to take steps regarding the situation in Maryland. Many of these steps would be extra-legal, and before all of them were taken Lincoln would stretch the Constitution to the limit—beyond the limit, in the opinion of Chief Justice Taney—but there was no help for it. There were no rules now except the ancient law of survival. What had to be done would be done, and now and then some odd-looking instruments would be used.
Among these was the eminent Massachusetts politician Benjamin F. Butler. Gross, shifty, and calculating, Butler had been a prominent Democrat, and at the Charleston convention (so long ago, now, so irrevocably lost in the past) he had worked long, hard, and fruitlessly to win the Democratic Presidential nomination for Jefferson Davis. Now he was a brigadier general, leading troops south to fight against that same Davis; and on April 20 a steamer carrying Butler and the 8th Massachusetts Infantry dropped anchor at Annapolis, forty miles by rail from Washington.
Annapolis was the capital of Maryland and it contained Governor Hicks, who was thoroughly loyal to the Union but was almost distracted by the thought of what the dedicated pro-Confederates in his state might do if they saw any more Federal troops moving south on coercive missions. It seemed at the moment as if all of Maryland might go aflame, just as Baltimore had, and Hicks begged Butler to keep his men on their boat. He also sent an impassioned telegram to Lincoln, describing it in a companion message to Secretary Seward: “I have felt it to be my duty to advise the President of the United States to order elsewhere the troops now off Annapolis and also that no more may be sent through Maryland. I have also suggested that Lord Lyons [the British minister in Washington; a functionary whom Robert Toombs would have loved to see enmeshed in this war] be requested to act as mediator between the contending parties of our country to prevent the effusion of blood.”2
This day was Saturday. Over the weekend, Hicks conferred extensively with Butler, while the Massachusetts soldiers lounged about in crowded idleness aboard their steamer. Governor Hicks discovered something that other men would discover later—that Ben Butler, however grave his deficiencies as a military man, was highly skilled in argument and negotiation; was also a man who never hesitated to use all of the authority that he believed himself to possess. By Monday morning, April 22, Butler had things settled his way, and he brought the 8th Massachusetts ashore. As the men were landing, another steamer came in with the 7th New York, and this regiment also came ashore. As a brigadier, Butler assumed command of everybody, after certain spirited protests from the officers of the New York regiment.
From Annapolis a branch line of the Baltimore & Ohio ran twenty miles westward to intersect the Baltimore–Washington line at a point called Annapolis Junction. Track and bridges on the Annapolis branch had been sabotaged, and the only rolling stock at Annapolis consisted of one damaged locomotive; but the Massachusetts regiment was full of mechanics—one soldier discovered that he had actually helped to make the engine that needed repairs—and Butler put track and engine gangs to work, with two companies of infantry thrown out to guard against secessionist interference. Orders came in from the War Department by special messenger; Butler was to remain in Annapolis, assuming responsibility for keeping this route to the capital open, and troops were to come on to Washington. The 7th New York plodded along the track to the junction, got aboard a waiting train there, and went steaming on to Washington. There it detrained, formed ranks, and went tramping along Pennsylvania Avenue toward the White House. The date was April 25, just ten days after Lincoln had issued his call for troops.
The 7th New York was a crack militia regiment, neatly uniformed, priding itself on the precision of its drill, the excellence of its brass band, the high social standing of its officers and enlisted men, and the general snap and sparkle of its military behavior. It had left New York after a two-mile parade down Broadway, and because of the emergency it moved in light marching order, leaving behind much camp equipment, including 1000 velvet-covered camp stools. One of its members wrote of the “terrible enthusiasm” with which New York sent its first regiment off to war—cheers so loud the regiment could hardly hear its own band, citizens pressing close to pound soldiers on the back, ladies tossing handkerchiefs from windows or, more bold, stepping out from the curb to tap a soldier’s wrist with a pair of gloves … “it was worth a life, that march.” (The soldier who wrote thus was a young man named Theodore Winthrop: he would die in battle before this spring was over, paying his own price for the march that stirred him so much.) Now the regiment was in Washington, knowing its supreme moment. It came down the great avenue under its flags, stepping along as if it were the finest regiment in the world, the advance guard of many more to come. Washington’s week of panic was over.3
This was all very well, but the fundamental insecurity remained. The border states appeared to be exploding like a string of firecrackers, and if Maryland exploded with them—which, considering what had happened in Baltimore, seemed quite likely—the administration and the capital city and the war itself could be lost all in one lump. Ben Butler and the militia had merely opened a temporary road. That road now must be made permanent, broad enough to give every Northern state free access to the capital. The administration had to make certain of Maryland’s loyalty to the Union, or, if the loyalty proved inadequate, at least of Maryland’s subservience. President Lincoln and Governor Hicks would see about it.
Against them was the power of a blazing sentiment, built on an old fondness and raised now by violence to story-book intensity. The bond that pulled American states into the Confederacy was always more a matter of emotion than of cold logic, and from Baltimore to the Gulf the emotional response to the nineteenth of April was unrestrained. What the North saw as a mob scene looked in the South like a legendary uprising, with gallant heroes brutally done to death by the ignorant soldiers of a cruel despotism. All of the sense of romance that attached itself to the Southern cause was centered now on Maryland, and the state was pictured as a tragically beset heroine whose ultimate rescue must come if the world made any sense at all. James Ryder Randall, a Marylander-in-exile, wrote a passionate apostrophe—“The despot’s heel is on thy shore! Maryland!”—and the song was sung all across the South as an inspiring battle hymn. The Confederate Congress would, in time, vote that no treaty of peace would ever be signed that did not permit Maryland to enter the Confederate nation. To this welling forth of sentiment, there was a responsive reaction among all Marylanders who felt kinship with the South.
Maryland’s legislature was in adjournment at this time, and Governor Hicks was undoubtedly willing to have it stay that way, but now his hand was forced. Ardent and influential friends of the South were demanding that the legislature assemble at once in Baltimore, and a proclamation calling such a meeting had been issued over the name of State Senator Coleman Gellott. The proclamation had no legal standing whatever, but this was a spring in which legalities meant very little; a rump session meeting in Baltimore, which in the days immediately following the riot seemed to be as pro-Confederate as Richmond itself, might do incalculable things and make them stick. Weighing all of the possibilities, Governor Hicks concluded that the best way to head off an uncontrollable, self-summoned and self-instructed rump session was to have a regular session called in the regular way, so he ordered the legislature to convene on April 26. Inasmuch as Annapolis, the capital, was occupied by Federal troops, he specified that the meeting take place in the city of Frederick, forty miles west of Baltimore. Frederick had been selected after careful thought; it was well over in western Maryland, where most people were Unionists and the legislators would not be meeting under pressure of a secessionist gallery.
When the legislature assembled, the governor assured it that “the only safety of Maryland lies in preserving a neutral position between our brethren of the North and of the South.” M
aryland, he pointed out, had violated the rights of neither section, wished everybody well but still prized the Union, had done nothing to start the war, and hoped that the war would end as quickly as possible. In consequence: neutrality.4
After some debate the legislature agreed with the governor. It passed a resolution asserting that it lacked the constitutional power to adopt an ordinance of secession, and it pointedly refrained from calling a state convention, which could adopt such an ordinance; in effect, it refused to go for secession, and the chance that Maryland would formally leave the Union was dead. The legislature named commissioners to discuss with the Federal authorities arrangements “for the maintenance of the peace and honor of the State and the security of its inhabitants,” and it named committees to visit both Lincoln and Davis. There were certain rumblings while this went on. The lower house urged Lincoln to make peace, and at length resolved that “the state of Maryland desired the peaceful and immediate recognition of the independence of the Confederate States.” Mere resolutions, however, the Federal government could take in its stride. The important thing was that Governor Hicks had kept Maryland in the Union.5
In all of this, Governor Hicks had help from Washington, and the kind of help he got was clear indication that Lincoln was prepared to be ruthless. It had taken the President a long time to make up his mind, after a winter in which he had seemed to sway uncertainly with varying breezes, but at last he had hardened, and now he had come to one of the fateful decisions of the Civil War. He would fight secession with any weapon he could lay his hands on, no matter what the weapon might be; facing what he looked upon as a revolutionary situation, he would use revolutionary means to cope with it. He had said, so recently, that all hope was not yet gone, but the hope that remained now (as a loyalist Northerner might see it) was nothing better than the hope that those who had risen against this administration might yet confess their error and submit. His answer to those who denied the power of the Federal government was simply to assert (backing the assertion by force) that that power could, in time of crisis, be wholly unlimited.
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 repo
rt 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