Page images

reason for such refusal that you had no right to The bridges destroyed on the Northern Central interfere with the passage of troops of the Unit. Railroad were at Ashland and Monkton, 16 and ed States through Maryland to the National 18 miles from Baltimore. The parties who deCapital; but in view of the wild excitement stroyed them left Baltimore in omnibuses. The then prevailing, which overwhelmed and defied bridges were fired a little after one o'clock. It the restraints of civil authority, as a measure being impossible for the men to have left Baltiof humanity, and regard for the loyal citizens more after it was alleged my consent was given, of Baltimore, you agreed to unite with the they must have started before my consent was Mayor in a telegraphic despatch to the Presi- asked. Thus showing that the destruction of dent, and to the Governors of the Northern the brid ;es was determined upon, and would States, invoking them to send no more troops have been consummated, no matter what might through Baltimore while the laws were set at have been my opinion in the premises. As evidefiance.

dence of this, I offer the following letter from It is alleged that your consent to the destruc- a highly respectable citizen, who has been kind tion of the bridges was given at the residence enoug'i to ascertain the particulars for me: of the Mayor.-Of this, of course, I cannot

TowSONTOWN, May 29, 1861. speak, not having accompanied you there. But His Excellency, Governor Hicksif such be the fact, you have committed a most

My Dear Sir: Yours of this date was handed inonstrous and improbable inconsistency. If

me by our mutual friend, Mr. Bryson, and I at you acquiesced in this work of destruction, you once started to Cockeysville in company with departed (in the Mayor's house) from a princi- Mr. Bryson and our friend Edward Rider, Jr., ple which in his office, during the trying events and after getting such facts connected with the of the day, you had consistently and manfully burning of the bridges as we could obtain, I insisted upon: the right of the Government to hasten to answer your inquiries. pass troops through Maryland to the Capital.

On the night of the 19th ultimo I left BaltiThis sentiment you reiterated on the next day, more at precisely ten minutes past ten o'clock, on board of the steamer Pioneer, as I accom- and in about ten ninutes more reached a point panied you to Annapolis.

about one hundred yards nearer the city than You can use this statement as you think best. the cemetery entrance, at which place I saw I could make it more full if you wish it. I

an omnibus with four horses, heads turned could allude to the liability of every one in northward, or up the road; and about one Baltimore, on the 19th, confused by the excite- hundred yards nearer the city I had passed ment, to be mistaken.' Indeed I remember an previously two groups of men, about fifteen instance of this. General Egerton was ordered each; and when we passed the omnibus I reby you to drive back the mob who were pressing marked to a friend who was with me, “there upon the Pennsylvania troops. He drove back is some devilment connected with that omnithe troops. I heard you give the order to Eger- bus." Well

, after I was home in bed, at about a ton, and I heard him report to you. You dis- quarter past eleven o'clock, the same omnibus, approved of his act, and he pleaded misappre- full of men, passed here, and a lady informed hension of your order.

me that she saw it pass her house at precisely I remain, sir, respectfully, yours, &c.,

twelve o'clock, nine miles and a half from the R. S. MERCER,

city. The watchman at the bridge, whom I Col. Third Regiment, M. C.

saw to-day, states positively that when they I had not retired to my bed when the scut- arrived at the bridge, and penned him in his tling of the ferry boat was proposed to me. It

shanty, it was about ten minutes past one was not proposed by men in whom I had no o’olock; and that after cutting the telegraph confidence. Highly respecta lo gentlemen wires, which took but a few minutes, they fired urged it as the easiest and most lawful means the bridges at about twenty or twenty-five of effecting the desired object. Yet I unhesi- minutes after one o'clock. tatingly refused my consent to the step. But

As to who the party were, I cannot say; but the people of Maryland are asked to believe a gentleman at Cockeysville said that a man that

, after this, in the still watches of the night, named Philip Fendall (I think of the firm of when requested by Enoch L. Lowe and George Duvall

, Keighler & Co.) was one of the party, P. Kane to consent to the destruction of the but I am not prepared to say so positively. bridges, I gave an “unequivocal, and decided, He is a cousin to the wife of John Nerryman, and distinct reply in the affirmative." I leave

now under arrest. my vindication from such an absurd charge to the good sense of the people, in the full confi- will do with great pleasure.

Any thing further that I can do for you, I

Please excuse dence that justice will be done me.

this hurried account of the affair, as Mr. Bryson It will readily occur to the reader that the

is waiting. time when the bridges were destroyed is a ma

Your obedient servant, terial point of this subject. The Mayor and

John H. LONGNECKER. his witnesses concur in their statement of the hour when they went to my bed-chamber to I have not the slightest doubt that the desolicit my consent to the destruotion of the struction of the br es referred to im. bridges. They say it was 12 o'clock at night. portant part of the secession programme. The

necessity of such a step, in furtherance of the All men who will go with me will report evident designs of the secession leaders, must themselves as soou as possible, providing thembe apparent to all. It little becomes me, how- selves with such arms and accoutrements as ever, except for my own vindication, and inci- they can; double-barrelled shot guns and buckdentally, to enter upon an exposition of that shot are efficient. They will assemble, after plot. Time will fully unveil the plans of the reporting themselves, at 104 o'clock, so as to traitors. Already has sufficient been disclosed go down in the 11} train. to satisfy any nnprejudiced mind that all the

BRADLEY T. Johxson. details were matured which were designed to precipitate Maryland into rebellion against the

Add to this the undeniable fact that many General Government, and thus render our State of the volunteer companies in Maryland were the theatre of war. The following letter will eagerly looking for an outbreak, and the subshow that the burning of the bridges was a sequent attempt of the Legislature to pass the foregone conclusion before my consent was

“Public Safety bill ” in secret session, and I asked

think no one can fail to see that the conspiracy,

FREDERICK CITY, MD. of which an attempt has been made to make His Excellency, Thomas H. Hicks, Governor of mo a participant, was fully and deliberately Maryland

planned, and might have accomplished its dia.. Dear Sie: We have received yours of the bolical designs had not the people frustrated it 23d instant, and, in reply, state that during by an unmistakable expression of their deterthe night of the 19th of April, ultimo, about mination to crush it at the point of the bayoone o'clock, Bradley T. Johnson sought and net. had an interview with us relative to a tele- Deeply regretting the necessity which has graphic despatch which he had received within impelled me to vindicate myself from the charge an hour before from George P. Kane, Marshal brought against me, and with the assurance that of Police of Baltimore City, and which has since I have done so only out of regard to the honor appeared in the public prints. In the course and dignity of my official position, I leave the of that interview, Mr. Johrson, in unfolding matter to the judgment of a people whom I the plans of those with whom he was coöp- have endeavored faithfully to serve, and whose erating, stated that they were determined to interests and safety I have constantly had in resist the passage of Federal troops through view.

Thos. H. Hicks. Maryland; and, as one of the means to accomplish that end, that the bridges on the railroads leading into Baltimore would be burned or de

Doc. 57. stroyed. Some of us are clear in our recollection that he said the bridges would be destroyed

REBEL OFFICIAL ACCOUNT that night. Others are not so clear in our recollection on that point.

OF THE BATTLE AT NEW CREEK, VIRGINIA. Very respectfully, your obedient servants,


Camp Davis, ROMNEY, Va., June 19, 1861.
WILLIAM P. Maulsby,

COLONEL:- I have the honor to report that GRAYSON EICHELBERGER,

on yesterday I directed Colonel J. O. Vaughan, ULYSSES HOBBs.

of the Third Tennessee regiment, to take two

companies from his own and two from the ThirThe annexed copy of a handbill circulated teenth Virginia regiment, and at eight o'clock throughout Western Maryland by Bradley T. P. M. to proceed to New Creek depot, eighteen Johnson, is evidence that Marshal Kane and his miles west of Cumberland, on the Baltimore and allies had made all the necessary provisions in Ohio Railroad, disperse the forces there collectanticipation of the pre-arranged attack uponed, bring away the two pieces of artillery, and the Massachusetts troops :

burn the railroad bridge. These directions, I am LATEST NEWS!

happy to assure you, were carried out to the Marylanders, Arouse !

letter, and the march of thirty-eight miles ac

complished between eight P. M. and twelve the FREDERICK, Saturday, 7 o'clock A. M., 1861. At 12 o'clock last night, I received the follow- next day. Some 250 of the federal troops, after ing despatch from Marshal Kane, of Baltimore,

a slight stand, retired in disorder, with a loss by telegraph to the Junction, and express to of a few men. The bridge was then burned, Frederick:

and Colonel Vaughan retired, bringing with him “Thank you for your offer. Bring your men

two pieces of artillery and a stand of colors. by the first train, and we will arrange with the To Colonel Vaughan, his officers and men, I am railroad afterward. Streets red with Maryland much indebted for the handsome manner in blood! Send expresses over the mountains and which my orders were carried out. Enclosed valleys of Maryland and Virginia for their rifle- you will find the report of Colonel Vaughan, men to come without delay. Fresh hordes will

A. P. Hill,

Colonel Third Regiment, commanding Brigade. be down upon us to-morrow (the 20th.) We will fight them, and whip them, or die.

Col. E. K. Smith, A.-A. General, “GEO, P. KANE."

HEAD-QUARTERS, THIRD TENNESSEE REGIMENT, ernment of their own, were in arms to maintain

Col Hill's BBIGADE, June 19, 1861. the rebellion. The laws of the United States A. P. Hill, Colonel, Commanding Brigade, were forcibly resisted; their officers, either volC. S. A., Romney, Va.:

untarily or through violence, were abandoning I have the honor to report that on yesterday, their duty and resigning their commissions, and at eight o'clock P. M., in pursuance of your or- a determination announced by the rebels to der, I took two companies of the Thirteenth continue the rebellion until its success was Virginia Volunteers, C. S. A., commanded by achieved, and the usurped Government recogCaptains Crittenden and White, and also two nized by that of the United States. In this treacompanies of the Third Tennessee regiment Vol- sonable effort it was believed that there were unteers, C. S. A., commanded by Captains Lil- misguided citizens in Maryland and elsewhere, liards and Mathas, and advanced eighteen miles whose States were yet loyal, who participated west to the line of the enemy, upon the Balti- in the treasın, aided it secretly, and designed to more and Ohio Railroad, and found them post involve their States in the rebellion. In this state ed in some strength, with two pieces of artil- of things the President, under his sworn duty lery, on the north bank of the Potomac, at the to “take care that the laws be faithfully executtwenty-first railroad bridge on said road. The ed," determined on resorting to the means afenemy had no pickets posted. At five o'clock forded by the second section of the act of 28th 4. M., after reconnoitring, I gave the order to February, 1795, and by the act of the 3d of charge the enemy, which command, I beg leave | March, 1807. Ile believed that the laws of to say, was gallantly executed, and in good or the United States were being “opposed,” their der, but with great enthusiasm. As we ap- executivn obstructed, “ by combinations too peared in sight, at a distance of four hundred powerful to be suppressed by the ordinary course Fards, the enemy broke and fled in all direc- of judicial proceedings, or by the powers vesttions, firing as they ran only a few random shots, ed in the marshals," and he therefore decided, one of which, however, I regret to say, entered as he was bound to do, “to call forth " such of the arm of private Smith, of Captain Lilliard's the militia as he deemed necessary to suppress company, which was in advance, wounding him the combination, and to employ to the same end slightly. The enemy did not wait to fire their the land and naval forces of the United States. artillery, which we captured, consisting of two of his duty to see to the execution of the laws loaded guns, both of which, however, were he could have had no doubt, as that is in words spiked by the enemy before they fled. From imposed by the Constitution itself. Nor could the best information their number was between he have had any doubt of his authority and obtwo and three hundred. I do not know the ligation to resort for that purpose to the powers loss of the enemy, but several of them were conferred on him by the laws referred to. The seen to fall. We did not take any prisoners, meaning of these laws is free from all question, owing to the start the enemy got, and of our and the constitutionality of the first was long having left in the rear all the horses belonging since sanctioned by a unanimous decision of the to my comunand. I then ordered the twenty- Supreme Court in the case of Martin and Mott, first railroad bridge to be burnt, which was 12 Wheat. 19, wliilst the validity of the last done, and in a few minutes only the piers re- was never drawn into doubt. In that case it mained. In further pursuance of your order, I was also decided that the President was the then retired, bringing with me the two guns. solo judge of the facts which would authorize The enemy's flag, which I forgot to mention, bis use of the means provided by these laws, was captured, and other articles of little value. and that his decision was conclusive not only I cannot close without bringing to your notice upon the citizens, but upon every branch of the the gallant conduct of both officers and men, Government, whether Federal or State. In the who were each at their posts, and burning to language of the Court, " the authority to decide engage the enemy; and, when the order to whether the exigency has arisen belongs exclucharge was given, rushed forward with enthu- sively to the President, and that his decision is siasm, wading the river to their waists. I ar- conclusive upon all other persons.” rived here this evening, the spirits of my men The obligation on the President being to sup. in nowise flagged.

John O. VAUGHAN, press the revolt and to “ cause the laws to be Colonel Commanding, Third Teunessce Volun- duly executed,” the military authority vested teers, Confederate States Army.

in him for that purpose is to be exercised until

the end is attained. The sole limitation is one Doc. 58.

of time, and that regards only the militia whom

he can use but from the period of their call POWER OF THE PRESIDENT TO SUS- into service till the expiration of thirty days PEND THE HABEAS CORPUS WRIT. after the commencement of the next session of BY REVERDY JOHNSON.

Congress. It thus appears that the militia and

army and navy of the United States, now being SEVERAL States of the Union having renounc- used by the President to suppress the rebellion, ed their allegiance and that of their citizens to are in the field by the authority of Congress, in the Government of the United States, and as- whom the war power is vested, and to whom serted their right to do so, and organized a Gov- is also delegated the anthority, and consequent

VOL. II.-Doc. 14

ly in such cases the duty, “to provide for call- | corpus, nor authorize any military officer to ing forth the militia to execute the laws of the do so." Union, suppress insurrections, and repel inva- Since the publication of this opinion the sions." The entire force has therefore now author of this paper has reviewed the subject, been “called into the actual service of the Unit. and availed himself of all the light furnished ed States," and, by the very words of the Con- by the Chief-Justice. His original impression, stitution, is under the direction of the President however, that the President's conduct was per: as commander-in-chief.

fectly constitutional, has but been confirmed. It He is to use them and to exercise, and to au- is the purpose of this paper to state the reasons thorize others to exercise, all power in their use for this impression. This it is supposed is jusnecessary to attain the end in view, the suppres- tified by the nature of the subject and the elesion of the rebellion. The power given him is vated character of both the high functionaries strictly a military one. It is given because, more immediately concerned. The duty de. in such a case as Congress by their legislation volved on the President by the obligation to assume, a state of quasi war exists between the take care that the laws " be faithfully executed," Government and the rebels. Not only the safe- and to use with that view the means furnished ty but the very existence of the Government by the acts of Congress before referred to, is depends on the result. The rebellion must be clearly and exclusively devolved upon him alone. suppressed, or the integrity the Government Of its character and extent he is consequently suspended, impaired, or destroyed. In such a to decide for himself, subject only to his recase it is evident that “the public safety” re- sponsibility to the people and to Congress. If, quires the use of every legitimate means ne- contrary to his own judgment, he abandons that cessary to accomplish the end, the extinction of judgment and suffers hmiself to be governed by the rebellion, that are expressly or impliedly the judgment of any coördinate authority of delegated to the President by Congress. the Government, he would be false to his duty,

Believing that instances might occur in Mary- and do any thing but fulfil “his constitutional land or elsewhere where the purpose might be obligation” to “take care that the laws be endangered if the civil proceeding by habeas faithfully executed.” For this principle there corpus was suffered uninterruptedly to prevail, is the high authority of a former distinguished the President authorized the commanding officer President, Gen. Jackson. When, in July, 1832, for the time being, through the commander-in- it was urged upon him that a measure submitchief, to disregard it, if in his judgement the ted for his action as President was conclusively public safety demanded it, ond to vonch him settled to be constitutional by an opinion, not of for his authority. This step was taken with no a single judge of the Supreme Court, but of the view to oppress the citizen, or illegally inter- entire Court, he held that that “ought not to fere with the ordinary course of civil justice, control the co-ordinate authorities of the Govbut solely from a conviction that it was in- ernment;" that “Congress, the Executive, and dispensable to the public safety, so clearly in the Court must each for itself be guided by its volved in the suppression of the rebellion. As own opinion of the Constitution. Each public no general dispensation of the writ was deem- officer who takes an oath to support the Coned necessary, but merely in certain cases of stitution swears that he will support it as he which the officer in command was, in the first understands it, and not as it is understood by instance, necessarily to judge, no notice was others. It is as much the duty of the House given that the writ would be suspended. Such of Representatives, of the Senate, and of the à notice would have been out of place where President to decide upon the constitutionality the design was to suspend it in particular cases of any bill or resolution which may be presentonly, whose special circumstances could not ined to them for passage or approval, as it is of advance be known, and of course could not be the Supreme Judges, when it may be brought stated in a notice. Under this authority, del- before them for judicial decision." egated to Gen. Cadwalader, a case occurred- The correctness of this doctrine, as applied to that of John Merryman, of Maryland-in which any constitutional power vested in either of the that officer refused to obey such a writ issued three branches of the Government for its sepaby the Chief-Justice of the United States. rate action, has never been seriously questioned. That high officer has since filed his opinion, and To hold otherwise would be to attach superiority has, it is said, caused a copy of the same, with to one over the rest. Each being coördinate all the proceedlings, to be transmitted to the and clothed with its respective powers, each President, with whom, to use the words of the must judge for itself what those powers are, Chief Justice, it will "remain,” in fulfilment of and act accordingly, not in subordination to his constitutional obligations, to take care that but independently of, the others. The power, the laws be faithfully executed,” to determine then, which the President exercises in such i what means he will take to cause the civil pro- case is clearly conferred upon him, and on him cess of the United States to be respected and alone, as President. It is made so by the Conenforced.” In this opinion the Chief-Justice stitution and laws, and he is therefore the sole decides that “the President, under the Con- judge of its nature and limits. What, then, is stitution and laws of the United States, cannot the law? suspend the privilege of the writ of habeas First. The writ abeas corpus, except as hereinafter stated, is nowhere mentioned in the cause of the terms with which the article begins, Constitution or secured to the citizen by any "all legislative powers herein granted shall be general phraseology. Independent of the ex- vested in Congress," excluding of course all ception alluded to, the writ being given or re- powers not embraced by the grant. This being cognized by law might have by law been repeal- the scope of the power which is in any one of ed, and consequently have been repealed by the instances delegated by the 8th section of the Congress, in whom was vested, but for the ex- article, that cannot, by any latitude of construcception, ample power for that purpose. The tion even, be held to vest in Congress exclusivelegislative authority of that body is delegated, ly the right to suspend the writ of habeas cornot by the entire first article of the Constitution, pus. It is safe to say that there is not one. but by the eighth section of that article alone. Unlike the British Parliament, Congress has Under these powers it is clear that Congress no legislative authority other than that expressmight have refused to authorize a writ. With- ly delegated or reasonably to be implied from out such authority no court or judge of the what is delegated. If therefore, as will be eviUnited States could issue it; and because of dent from an examination of the 8th section, this, Congress passed the fourteenth section of there is nothing in it giving the power to susthe judiciary act of 1789. The officer or court pend the writ to Congress alone, that power, to issue the writ being to be designated by Con- if found anywhere, is not in the only section gress, Congress might now repeal that part of which confers legislative power. But it is said the act, and the writ would not exist as a rem- that the restriction on the authority to suspend edy under the Government of the Union. That the writ being in the 2d paragraph of the 9th such a measure would be wrong is admitted; section, and the entire article having "not the but it would not be such a wrong as would make slightest reference to the Executive Departit nncoristitutional. Its correction would be ment,” shows that the power to suspend the left with the people, as its occurrence is not to be writ' was intended to be vested in Congress anticipated because of the responsibility of Con- alone. The error of this statement has already gress to the people. But occurring, and as long been pointed out by referring to the nature of as it might continue, the writ would be of the 10th section of the article, which is wholly no avail under the Government of the Union. devoted to the negation of power to the States, The exception referred to is in the second and not to the grant of power to Congress. paragraph of the ninth section of the article. But the error is also apparent, though not to This is the paragraph which it is supposed ren- the same extent, by the provisions in the 9th ders the conduct of the President in the partic-section itself. The 7th paragraph of the secular under consideration so clearly unconstitu- tion as clearly embraces the Executive as does tional, and “too plain and too well settled,” any part of the succeeding one. By that paras unconstitutional, “to be open to dispute.” agraph it is provided that, “no money shall be The words of the paragraph are: “The privilege drawn from the Treasury but by appropriations of the writ of habeas corpus shall not be suspend- made by law, and a regular statement and aced unless when, in case of rebellion or invasion, count of the receipts and expenditures of all the pnblic safety may require it.” It is said public money shall be published from time to that this clause is in the article “ devoted to the time.” These clearly, so far from not having Legislative department,” “and has not the “the slightest reference to the Executive deslightest reference to the Executive depart- partment,” refer almost exclusively to that dement," and was designed, therefore, to give the partment. The Treasury is and must be under particular power to suspend the writ exclu- the Executive control. A restraint, therefore, sively to Congress.

on the authority to draw money out of the In the first place, the statement is erroneous Treasury, directly and exclusively applies to the in point of fact. It is true that the general ob- department. So again, in the following, the ject of the article is to constitute the legislative 8th paragraph: “No person holding any office of department, and to confer on it all the legisla- profit or trust under them, [the United States, ] tive authority of the Government. But that is shall, without the consent of Congress, accept not its exclusive purpose. The 10th section of of any present, emolument, office, or title of the article has nothing to do with the legisla- any kind whatever from any king, prince, or tive power of the Union. It is devoted alto- foreign State.” Officers of the United States gether to restraints on State power. These are are a part of the Executive department, and, made in certain cases absolute, and in others but for this prohibition, could accept the things dependent on Congressional assent, but they here prohibited. This clause, therefore, like the contain no grant of legislative power to Con- other, so far from not having "the slightest gress. That power, and the whole that the body respect to the Executive department,” refers possesses, is given by the 8th section. That sec- directly and exclusively to that department. tion commences with saying, “The Congress The assumption, then, of the Chief-Justice shall have power," and in eighteen paragraphs as to the nature of the article being unfoundStates the cases to which the power is to extend. ed, the weight of the argument, whatever that The exclusion of all other powers than those would otherwise be, founded on the assumption there given is not only admitted, because the totally fails. powers of Congress are all enumerated, but be- But there are other reesons for supposing

« PreviousContinue »