Page images

of the war, were inclined to censure the caution of the President, and to insist upon bolder and more sweeping assaults upon the persons and property of the people of the Rebel States, and especially upon the institution of slavery-and while, on the other hand, its more open opponents denounced every thing like severity, as calculated to exasperate the South and prolong the war, the great body of the members, like the great body of the people, manifested a steady and firm reliance on the patriotic purpose and the calm sagacity evinced by the President in his conduct of public affairs.




Ar the very outbreak of the rebellion, the Administration was compelled to face one of the most formidable of the many difficulties which have embarrassed its action. Long before the issue had been distinctly made by the rebels in the Southern States, while under the protecting toleration of Mr. Buchanan's administration the conspirators were making preparations for armed resistance to the Government of the United States, evidences were not wanting that they relied upon the active co-operation of men and parties in the Northern States, whose political sympathies had always been in harmony with their principles and their action. As early as in January, 1861, while the rebels were diligently and actively collecting arms and other munitions of war, by purchase in the Northern States, for the contest on which they had resolved, Fernando Wood, then Mayor of New York, had apologized to Senator Toombs, of Georgia, for the seizure by the police of New York of “ arms intended for and consigned to the State of Georgia,” and had assured him that “if he had the power he should summarily punish the authors of this illegal and unjustifiable seizure of private property.” The departments at Washington, the army and the navy, all places of responsibility and trust under the Government, and all departments of civil and political activity in the Northern States, were found to be largely filled by persons in active sympathy with the secession movement, and ready at all times to give it all the aid and comfort in their power. Upon the advent of the new Administration, and when active measures began to be taken for the suppression of the rebellion, the Government found its plans betrayed and its movements thwarted at every turn. Prominent presses and politicians, moreover, throughout the country, began, by active hostility, to indicate their sympathy with those who sought, under cover of opposition to the Administration, to overthrow the Government, and it became speedily manifest that there was sufficient of treasonable sentiment throughout the North to paralyze the authorities in their efforts, aided only by the ordinary machinery of the law, to crush the secession movement.

Under these circumstances it was deemed necessary to resort to the exercise of the extraordinary powers with which, in extraordinary emergencies, the Constitution had clothed the Government. That instrument had provided 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." By necessary implication, whenever, in such cases either of rebellion or invasion, the public safety did require it, the privilege of that writ might be suspended; and, from the very necessity of the case, the Government which was charged with the care of the public safety, was empowered to judge when the contingency should occur. The only question that remained was, which department of the Government was to meet this responsibility. If the act was one of legislation, it could only be performed by Congress and the President; if it was in its nature executive, then it might be performed, the emergency requiring it, by the President alone. The pressing emergency of the case, moreover, went far towards dictating the decision. Congress had adjourned on the 4th of March, and could not be again assembled for some months; and infinite, and perhaps fatal mischief might be done during the interval, if the Northern allies of the rebellion were allowed with impunity to prosecute their plans.

Under the influence of these considerations the President, in his proclamation of the 3d of May, 1861, directing the commander of the forces of the United States on the Florida coast to permit no person to exercise any authority upon the islands of Key West, the Tortugas, and Santa Rosa, which might be inconsistent with the authority of the United States, also authorized him, “if he should find it necessary, to suspend the writ of habeas corpus, and to remove from the vicinity of the United States fortresses all dangerous or suspected persons.” This was the first act of the Administration in that direction; but it was very soon found necessary to resort to the exercise of the same powers in other sections of the country. On the 25th of May, John Merryman, a resident of Hayfield, in Baltimore County, Maryland, known by the Government to be in communication with the rebels, and to be giving them aid and comfort, was arrested and imprisoned in Fort McHenry, then commanded by General Cadwallader. On the same day he forwarded a petition to Roger B. Taney, Chief-Justice of the United States, reciting the circumstances of his arrest, and praying for the issue of the writ of habeas corpus. . The writ was forth with issued, and General Cadwallader was ordered to bring the body of Merryman before the Chief-Justice on the 27th. On that day Colonel Lee presented a written communication from General Cadwallader, stating that Merryman had been arrested and committed to bis custody by officers acting under the authority of the United States, charged with various acts of treason, with holding a commission as lieutenant in a company avowing its purpose of armed hostility against the Government, and with having made often and unreserved declarations of his association with this armed force, and of his readiness to co-operate with those engaged in the present rebellion against the Government of the United States. The General added that he was “duly authorized by the President of the United States to suspend

the writ of habeas corpus for the public safety;" and that, while he fully appreciated the delicacy of the trust, he was also instructed “that, in times of civil strife, errors, if any,

should be .on the side of safety to the country.” The commanding General accordingly declined to obey the writ, whereupon an attachment was forth with issued against him for contempt of court, made returnable at noon on the next day. On that day, the marshal charged with serving the attachment made return that he was not admitted within the fortress, and had consequently been unable to serve the writ. The Chief-Justice, thereupon, read an opinion that the President could not suspend the writ of habeas corpus, nor authorize any military officer to do so, and that a military officer had no right to arrest any person, not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control. The Chief-Justice stated further, that the marshal had the


to summon out the posse comitatus to enforce the service of the writ, but as it was apparent that it would be resisted by a force notoriously superior, the Court could do nothing further in the premises.

On the 12th of May, another writ was issued by Judge Giles, of Baltimore, to Major Morris, of the United States Artillery, at Fort McHenry, who, in a letter dated the 14th, refused to obey the writ, because at the time it was issued, and for two weeks previous, the city of Baltimore had been completely under the control of the rebel authorities—United States soldiers had been murdered in the streets—the intention to capture that fort had been openly proclaimed, and the Legislature of the State was at that moment debating the question of making war upon the Government of the United States. All this, in his judgment, constitnted a case of rebellion, and afforded sufficient legal cause for suspending the writ of habeas corpus.

Similar cases arose, and

« PreviousContinue »