This dispatch shows us what a farce even the Virginia military league was, since two days before its conclusion "foreign" rebel troops were already ordered to the "sacred soil" of the Old Dominion. Governor Letcher was doubtless willing enough to respond to the suggestion of Davis, but apparently had neither the necessary troops nor preparation. He had as yet been able to muster but a shadowy force on the line of the Potomac, notwithstanding his adjutant-general's pretentious report of the previous December. Nevertheless, hoping that events might ripen the opportunity into better conditions for success, he lost no time in sending such encouragement and help as were at his control. The rebel commander at Harper's Ferry had already communicated with the Baltimore authorities and effected a cordial understanding with them, and they promised to notify him of hostile menace or approach.* Mason, late senator, appears thereupon to have been dispatched to Baltimore. He seems to have agreed to supply the Maryland rebels with such arms as Virginia could spare; and some 2000 muskets actually found their way to Baltimore from this source during the following week, though an arrangement to send twenty cannon (32-pounders) to the same city from the Gosport navy yard § apparently failed. But it would appear that the project of a dash at Washington found an unexpected obstacle in the counsels of Virginia's new military chief, Robert E. Lee, who assumed command of the State forces April 23. He instructed the officers at Alexandria and along the Potomac to act on the defensive, to establish camps of instruction, and collect men and provisions.¶ This course was little to the liking of some of the more ardent rebels. They telegraphed (in substance) that Davis's immediate presence at Richmond was essential; that his non-arrival was causing dissatisfaction; that the troops had no confidence in Lee and were murmuring; that there were signs of temporizing, hopes of a settlement without collision, and consequent danger of demoralization; that Lee "dwelt on enthusiasm North and against aggression from us." Said another dispatch:

Have conversed with General Robert E. Lee. He wishes to repress enthusiasm of our people. His troops not ready, although pouring in every hour. They remain here. General Cocke has three hundred and no more. Corps of observation on Potomac near Alexandria. He considers Maryland helpless, needing encouragement and succor. Believes twenty thousand men in and near Washington."

**

Harper to Richardson, April 21, 1861. War Records.

+ Blanchard to Howard, April 23, 1861. McPherson, "History of the Rebellion."

Stuart to Police Board, May 2, 1861. Ibid., p. 394.

In no State were the secession plottings more determined or continuous than in Maryland. From the first a small but able and unwearying knot of Baltimore conspirators sought to commit her people to rebellion by the empty form of a secession ordinance. They made speeches, held conventions, besieged the governor with committees; they joined the Washington conspirators in treasonable caucus; they sent recruits to Charleston; they incited the Baltimore riot; and there is no doubt that in these doings they reflected a strong minority sentiment in the State. With such a man as Pickens or Letcher in the executive chair they might have succeeded, but in Governor Hicks they found a constant stumbling-block and an irremovable obstacle. He gave Southern commissioners the cold shoulder. He refused at first to call the legislature. He declined to order a vote on holding a convention. He informed General Scott of the rebel plots of Maryland, and testified of the treasonable designs before the investigating committee of Congress. His enemies have accused him of treachery, and cite in proof a letter which they allege he wrote a few days after Lincoln's election in which he inquired whether a certain militia company would be "good men to send out to kill Lincoln and his men." If the letter be not a forgery, it was at most an ill-judged and awkward piece of badinage; for his repeated declarations and acts leave no doubt that from first to last his heart was true to the Union. He had the serious fault of timidity, and in several instances foolishly gave way to popular clamor; but in every case he soon recovered and resumed his hostility to secession.

The Baltimore riot, as we have seen, put a stop to the governor's arrangements to raise and arm four regiments of Maryland volunteers, of picked Union men, for United States service within the State or at Washington. Instead of this, he, in the flurry of the uprising, called out the existing militia companies, mainly disloyal in sentiment and officered by secessionists. The Baltimore authorities collected arms, bought munitions, and improvised companies to resist the passage of troops; they forbade the export of provisions, regulated the departure of vessels, controlled the telegraph. General Stewart, commanding the State militia, established posts and patrols, and in effect Maryland became hostile territory to the North and to the Government. The Union flag disappeared from her soil. For three or

§ Watts to Lee, April 27, 1861. MS.

|| Lee, General Orders, April 23, 1861. War Records.

¶ Lee to Cocke, April 24, 1861. War Records. ** Duncan to Walker, April 26, 1861. MS.

four days treason was rampant; all Union men were intimidated; all Union expression or manifestation was suppressed by mob violence. The hitherto fearless Union newspapers, in order to save their offices and materials from destruction, were compelled to drift with the flood, and print editorials advising, in vague terms, that all must now unite in the defense of Maryland. It was in this storm and stress of insurrection that Governor Hicks protested against Butler's landing, and sent Lincoln his proposal of mediation;* and on the same day (April 22), and by the same influence, he was prevailed upon to notify the legislature to meet on the 26th. It so happened that the seats of the Baltimore members were vacant. A special election, dominated by the same passions, was held on the 24th. Only a" States Rights" ticket was voted for; and of the 30,000 electors in the city 9244, without opposition, elected the little knot of secession conspirators—the Union men not daring to nominate candidates or come to the polls.

For the moment the leading Unionists of Maryland deemed their true rôle one of patience and conciliation. In this spirit Reverdy Johnson, a lawyer and statesman of fame and influence both at home and abroad, came to Lincoln upon the stereotyped errand to obtain some assurance in writing that he meditated no invasion or subjugation of the South; to which the President confidentially replied:

I forebore to answer yours of the 22d because of my aversion (which I thought you understood) to getting on paper and furnishing new grounds for misunderstanding. I do say the sole purpose of bringing troops here is to defend this Capital. I do say I have no purpose to invade Virginia with them or any other troops, as I understand the word invasion. But suppose Virginia sends her troops, or admits others through her borders, to assail this Capital, am I not to repel them even to the crossing of the Potomac, if I can? Suppose Virginia erects, or permits to be erected, batteries on the opposite shore to bombard the city, are we to stand still and see it done? In a word, if Virginia strikes us, are we not to strike back, and as effectively as we can? Again, are we not to hold Fort Monroe (for instance), if we can? I have no objection to declare a thousand times that I have no purpose to invade Virginia or any other State, but I do not mean to let them invade us without striking

back.f

policy. "In a word," said he, "all that your note suggests would be my purpose were I intrusted with your high office." He also promised that the President's note should "be held perfectly confidential." But it appears that Mr. Johnson chose his confidants with very poor judgment; for within four days its substance was written from Washington direct to Jefferson Davis.§

By no means the least of the difficult problems before Mr. Lincoln and his Cabinet was the question how to deal with the Maryland legislature, so unexpectedly called to assemble. The special election in Baltimore,|| held under secession terrorism, had resulted in the unopposed choice of ten delegates from the city, all believed to be disloyal, and several of them known to be conspicuous secessionists. With this fresh element of treason suddenly added to a legislative body so small in numbers, it seemed morally certain that its first act would be to arm the State, and pass something equivalent to a secession ordinance. Should this be permitted? How could it best be prevented? Ought the legislature to be arrested? Should it be dispersed by force? General Butler was at Annapolis, where it was expected that the session would be held, and signified his more than willingness to act in the matter. The plans were discussed in Cabinet with great contrariety of opinion. Some of the least belligerent of the President's councilors were by this time in hot blood over the repeated disasters and indignities which the Government had suffered, and began to indulge in the unreasoning temper and impatience of the irritated public opinion of the North, where one of the largest and most influential journals had already declared that the country needed a dictator. Mr. Bates filed a written opinion-in spirit a protest-declaring that the treasonable acts in Virginia and Maryland were encouraged by the fact that "we frighten nobody, we hurt nobody "; though he failed to suggest any other than merely vindictive remedies that were immediately feasible. Mr. Chase also partook of this frame of mind, and wrote the President a curt little note of querulous complaint, eminently prophetic of his future feelings towards and relations to Mr. Lincoln:

Let me beg you to remember that the disunionists have anticipated us in everything, and that as yet we the delegates from Baltimore, a special election was held in that city on April 24. But one ticket was presented, and 9244 ballots were cast for Messrs. John C. Brune, Ross Winans, Henry M. Warfield, J. Hanson Thomas, T. Parkin Scott, H. M. Morfitt, S. Teackle Wallis, Charles H. Pitts, Wm. G. Harrison, and Lawrence Sangston, the States Rights candidates. -Scharf, "History of Maryland," Vol. III., p. 424.

have accomplished nothing but the destruction of our own property. Let me beg you to remember also that it has been a darling object with the disunionists to secure the passage of a secession ordinance by Maryland. The passage of that ordinance will be the signal for the entry of disunion forces into Maryland. It will give a color of law and regularity to rebellion and thereby triple its strength. The custom-house in Balti more will be seized and Fort McHenry attacked perhaps taken. What next? Do not, I pray you, let this new success of treason be inaugurated in the presence of American troops. Save us from this new humiliation. A word to the brave old commanding general will do the work of prevention. You alone can give the word.*

The bad taste and injustice of such language consisted in its assumption that the President was somehow culpable for what had already occurred, whereas Mr. Chase had in the beginning been more conciliatory towards the rebels than had Mr. Lincoln.

With a higher conception of the functions of the presidential office, Mr. Lincoln treated of the presidential office, Mr. Lincoln treated public clamor and the fretfulness of Cabinet ministers with the same quiet toleration. Again, as before, and as ever afterward, he listened attentively to such advice as his Cabinet had to give, but reserved the decision to himself. He looked over the Attorney-General's legal notes, weighed the points of political expediency, canvassed carefully the probabilities of military advantage, and embodied

his final directions in a letter to General Scott:

MY DEAR SIR: The Maryland legislature assembles to-morrow at Annapolis, and not improbably will take action to arm the people of that State against the United States. The question has been submitted to and considered by me, whether it would not be justifiable, upon the ground of necessary defense, for you, as Commander-in-Chief of the United States Army, to arrest or disperse the members of that body. I think it would not be justifiable, nor efficient for the desired object. 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 cannot permanently prevent their action. If we arrest them, we cannot long hold them as prisoners; and, when liberated, they will immediately reassemble and take their action. And precisely the same if we simply disperse them. They will immediately reassemble in some other place.

I therefore conclude that it is only left to the commanding general to watch and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to counteract, even if necessary to the bombardment of their cities; and, in the extremest necessity, the suspension of the writ of habeas corpus. †

Chase to Lincoln, April 24, 1861. Schuckers, "Life of S. P. Chase."

+ Lincoln to Scott, April 25, 1861. Unpublished MS. Scott to Butler, April 26, 1861. War Records. Hicks, Special Message, April 27, 1861. 66 Rebellion Record."

Thus directed, General Scott wrote to General Butler on the following day:

In the absence of the undersigned, the foregoing instructions are turned over to Brigadier-General B. F. Butler of the Massachusetts Volunteers, or other offi cer commanding at Annapolis, who will carry them out in a right spirit; that is, with moderation and firmness. In the case of arrested individuals notorious for their hostility to the United States, the prisoners will be safely kept and duly cared for, but not surrendered except on the order of the commander aforesaid. ‡

At the last moment, however, conscious of the offenses which some of their members were

meditating against the Government, the Maryland legislature abandoned the idea of meeting at Annapolis, and induced the governor to convene their special session at the town of Frederick. Here Governor Hicks sent them his special message on the 27th, reciting the recent occurrences, transmitting his correspondence with the various Federal authorities, and expressing the conviction "that the only safety of Maryland lies in preserving a neutral position between our brethren of the North and of the South." At the same time he admitted the right of transit for Federal troops, for Union and peace."§ The lack of coherence and counseled "that we shall array ourselves and consistency in the message was atoned for by its underlying spirit of loyalty.

Meanwhile the plentiful arrival of volunteers enabled the Government to strengthen its hold upon Annapolis and the railroad.|| The military" Department of Annapolis" was created, and General Butler assigned to its command. This embraced twenty miles on each side of the railroad from Annapolis to Washington; ¶ and all of Maryland not included in these limits was left in General Patterson's" Department of Pennsylvania." Measures were taken to concentrate sufficient troops at Harrisburg and at Philadelphia to approach Baltimore in force from those quarters and permanently to occupy the city; and to give the military ample authority for every contingency, the President issued the following additional order to General Scott:

You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of any military line which is now or which shall be used between the city of Philadelphia and the city of Washington 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 at which resistance occurs, are authorized to suspend that writ.**

GOVERNOR T. H. HICKS. (FROM A PHOTOGRAPH BY BRADY.)

Merryman's treason, and stating further that the President had authorized him to suspend the writ in such cases; and requested the Chief-Justice to postpone further action till the matter could be referred to the President.* This avowal aroused all the political ire of the Chief-Justice; he was struck with a judicial blindness which put disloyalty, conspiracy, treason, and rebellion utterly beyond his official contemplation. He saw not with the eye of a great judge the offended majesty of the law commanding the obedience of all citizens of the republic, but only, with a lawyer's microscopic acuteness, the disregard of certain technical forms and doubtful professional dicta. The personal restraint of one traitor in arms became of more concern to him than the endangered fate of representative government to the world.

The Chief-Justice immediately ordered an attachment to issue against General Cadwalader for contempt; upon which the marshal made return that he was unable to serve it, being denied entrance to Fort McHenry. Thereupon the Chief-Justice admitted the existence of a superior military force, but declared "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," and

Tyler, "Memoir R. B. Taney," pp. 643, 644. + Ibid., pp. 644-659.

VOL. XXXVI.-9.

that Merryman ought therefore to be immediately discharged; and went on to say "that he should cause his opinion when filed, and all the proceedings, to be laid before the President, in order that he might perform his constitutional duty to enforce the laws by securing obedience to the process of the United States."

To this general purport the Chief-Justice filed his written opinion on the 1st of June, and caused a copy to be transmitted to the President.

Of that opinion it will not be irrelevant to quote the criticism of one of the profoundest and most impartial jurists of that day:

Chief-Justice Taney's opinion in Merryman's case is not an authority. This, of course, is said in the judicial sense. But it is not even an argument, in the full sense. He does not argue the question from the language of the clause, nor from the history of the clause, nor from the principles of the Constitution, except by an elaborate depreciation of the President's office, even to the extent of making him, as Commander-in-Chief of the army, called from the States into the service of the United States, no more than an assistant to the marshal's possethe deepest plunge of judicial rhetoric. The opinion, moreover, has a tone, not to say a ring, of disaffection to the President, and to the Northern and Western side of his house, which is not comfortable to suppose in the person who fills the central seat of impersonal justice. ‡

To this estimate of the spirit of Chief-Justice Taney's view we may properly, by way of anticipation, here add President Lincoln's own official answer to its substance. No attention was of course paid to the transmitted papers; but the President at the time of their receipt was already engaged in preparing his message to the coming special session of Congress, and in that document he presented the justification of his act. The original draft of the message, in Lincoln's autograph manuscript, thus defines the executive authority with that force of statement and strength of phraseology of which he was so consummate a master:

Soon after the first call for militia, I felt it my duty to authorize the commanding general, in proper cases, according to his discretion, 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 my verbal request, as well as by the general's own inclination, this authority has been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned; and I have been reminded from a high quarter that one who is sworn to "take care that the laws be faithfully executed" should not himself be one to violate them. Of course I gave some consideration to the questions of power and

Horace Binney, "The Privilege of the Writ of Habeas Corpus," Part I., p. 36.