North Carolina and Tennessee also went out during May. Even before calling the legislature into special session, the governor of North Carolina ordered the militia to seize three federal forts on the coast and
9. Four unionist delegates later changed their votes, making the final tally 69 to 1.
the arsenal in Fayetteville. The legislature met on May 1 and authorized an election on May 13 for a convention to meet on May 20. During these weeks everyone in the state, even in the previously unionist mountain counties, seemed to favor secession. "This furor, this moral epidemic, swept over the country like a tempest, before which the entire population seemed to succumb," wrote a participant.10 After a test vote on a procedural matter showed that the moderates were a minority, the delegates on May 20 unanimously enacted an ordinance of-secession. Meanwhile the Tennessee legislature short-circuited the convention process by adopting a "Declaration of Independence" and submitting it to a referendum scheduled for June 8. Tennessee imitated the action of Virginia by concluding a military alliance with the Confederacy and allowing Confederate troops to enter the state several weeks before the referendum. That election recorded 104,913 for secession and 47,238 against. Significantly, however, the voters of mountainous east Tennessee cast 70 percent of their ballots against secession.
Although speeches and editorials in the upper South bristled with references to rights, liberty, state sovereignty, honor, resistance to coercion, and identity with southern brothers, such rhetoric could not conceal the fundamental issue of slavery. The following table shows the correlation between slaveholding and support for secession in the Virginia and Tennessee conventions.11
Median no. of slaves owned by delegates
Delegates from counties with fewer than 25% slaves
Delegates from counties with more than 25% slaves
Va.
Tenn.
Va.
Tenn.
Va.
Tenn.
Voting for Secession
11.5
6.5
34
30
53
23
Voting against Secession
4
2
39
20
13
2
The popular vote in secession referendums illustrated the point even more graphically. The voters in 35 Virginia counties with a slave population of only 2.5 percent opposed secession by a margin of three to one, while voters in the remainder of the state, where slaves constituted
10. Sitterson, Secession Movement in North Carolina, 241.
11. The data in this table were compiled from Ralph A. Wooster, The Secession Conventions of the South (Princeton, 1962), 151, 153, 183, 185.
36 percent of the population, supported secession by more than ten to one. The thirty counties of east Tennessee that rejected secession by more than two to one contained a slave population of only 8 percent, while the rest of the state, with a slave population of 30 percent, voted for secession by a margin of seven to one. Similar though less dramatic correlations existed in Arkansas and North Carolina, where moderate delegates had a median slaveholding about half that of the all-out secessionists.12
The Nashville Patriot of April 24, 1861, was conscious of no irony when it cited the "community of interest existing in all the slaveholding States" as the reason why these states must unite to defend "justice and liberty."13 The upper South, like the lower, went to war to defend the freedom of white men to own slaves and to take them into the territories as they saw fit, lest these white men be enslaved by Black Republicans who threatened to deprive them of these liberties.
III
In the four border states the proportion of slaves and slaveowners was less than half what it was in the eleven states that seceded. But the triumph of unionism in these states was not easy and the outcome (except in Delaware) by no means certain. Maryland, Kentucky, and Missouri contained large and resolute secessionist minorities. A slight twist in the chain of events might have enabled this faction to prevail in any of these states. Much was at stake in this contest. The three states would have added 45 percent to the white population and military manpower of the Confederacy, 80 percent to its manufacturing capacity, and nearly 40 percent to its supply of horses and mules. For almost five hundred miles the Ohio river flows along the northern border of Kentucky, providing a defensive barrier or an avenue of invasion, depending on which side could control and fortify it. Two of the Ohio's navigable tributaries, the Cumberland and Tennessee rivers, penetrate through Kentucky into the heart of Tennessee and northern Alabama. Little wonder that Lincoln was reported to have said that while he hoped to have God on his side, he must have Kentucky.
Control of Maryland was even more immediately crucial, for the state enclosed Washington on three sides (with Virginia on the fourth) and
12. Ibid., 200, 265.
13. Dumond, ed., Southern Editorials on Secession, 510–11.
its allegiance could determine the capital's fate at the outset of the war. Like the lower South, Maryland had voted for Breckinridge in the presidential election. Southern-Rights Democrats controlled the legislature; only the stubborn refusal of unionist Governor Thomas Hicks to call the legislature into session forestalled action by that body. The tobacco counties of southern Maryland and the eastern shore of the Chesapeake Bay were secessionist. The grain-growing counties of northern and western Maryland, containing few slaves, were safe for the Union. But the loyalty of Baltimore, with a third of the state's population, was suspect. The mayor's unionism was barely tepid, and the police chief sympathized with the South. Confederate flags appeared on many city homes and buildings during the tense days after Sumter. The traditional role of mobs in Baltimore politics created a volatile situation. Only a spark was needed to ignite the state's secessionists; such a spark hit the streets of Baltimore on April 19.
On that day the 6th Massachusetts Regiment—the first fully equipped unit to respond to Lincoln's call for troops—entered Baltimore on its way to Washington. No rail line passed through Baltimore, so the troops had to detrain at the east-side station and cross the city to board a train to the capital. A mob gathered in the path of the soldiers and grew increasingly violent. Rioters attacked the rear companies of the regiment with bricks, paving stones, and pistols. Angry and afraid, a few soldiers opened fire. That unleashed the mob. By the time the Massachusetts men had fought their way to the station and entrained for Washington, four soldiers and twelve Baltimoreans lay dead and several score groaned with wounds. They were the first of more than 700,000 combat casualties during the next four years.
Maryland flamed with passion. Here was coercion in deadly earnest. Worst of all, the soldiers who had killed Baltimore citizens were from the blackest of Black Republican states. To prevent more northern regiments from entering Baltimore, the mayor and the chief of police, with the reluctant approval of Governor Hicks, ordered the destruction of bridges on the railroads from Philadelphia and Harrisburg. Secessionists also tore down telegraph lines from Washington through Maryland. The national capital was cut off from the North. For several days, rumors were the only form of information reaching Washington. They grew to alarming proportions. Virginia regiments and armed Maryland secessionists were said to be converging on the capital. Washington was gripped by a siege mentality. Citizens' groups and government clerks formed themselves into volunteer companies. At General Scott's orders, these units sandbagged and barricaded public buildings and prepared the imposing Treasury edifice for a last-stand defense.
Reports filtered through of an aroused North and of more regiments determined to force their way through Maryland at any cost. But the rumors of an impending attack by Virginians seemed more real than the hope of rescue from the North. Lincoln looked wistfully out of the northern windows of the White House and murmured, "Why don't they come?" On April 24 he visited the officers and wounded men of the 6th Massachusetts. "I don't believe there is any North," Lincoln
gloomily told the soldiers. "The [New York] Seventh Regiment is a myth. Rhode Island is not known in our geography any longer. You are the only Northern realities."14
But next day a troop train carrying the crack New York 7th puffed into Washington, followed by more trains bearing additional regiments from northeastern states. They had arrived over a circuitous route via Annapolis under the command of Benjamin F. Butler, who thereby achieved one of the few military successes of his contentious career. A clever lawyer and shrewd politician whose paunchy physique, balding head, drooping mustache, and cocked left eye gave him a shifty appearance that matched his personality, Butler was a Massachusetts Democrat soon to become a Republican. From Governor Andrew he had wrested an appointment as brigadier general of the militia that Andrew had mobilized upon Lincoln's call for troops. The 6th Massachusetts had been the first regiment of this brigade to leave for Washington. When Butler, following with the 8th Massachusetts, learned of the riot in Baltimore and the burning of railroad bridges, he detrained the 8th at the head of Chesapeake Bay, commandeered a steamboat, and landed the regiment at Annapolis. The 8th Massachusetts contained several railwaymen and mechanics in its ranks. Finding that secessionists had ripped up tracks and destroyed rolling stock on the line from Annapolis to Washington, Butler called for volunteers to repair the rusting derelict of a locomotive he found in the Annapolis yards. A private stepped forward: "That engine was made in our shop; I guess I can fit her up and run her."15 Setting a pattern for the feats of railroad construction that helped the North win the war, Butler's troops and the 7th New York reopened the line over which thousands of northern soldiers poured into Washington.
14. Dennett, Lincoln/Hay, 11.
15. Nevins, War, I, 85.
Although Baltimore remained tense, the buildup of Union military strength along Maryland's railroads and a declaration of martial law in the city on May 13 dampened secession activities. Nevertheless, Governor Hicks succumbed to pressures to call the legislature into session. Lincoln considered sending troops to arrest disunionist legislators, but thought better of it. To the president's surprise, the legislature turned out to be all bark and no bite. The lower house denounced the war which "the Federal Government had declared on the Confederate States" and proclaimed Maryland's "resolute determination to have no part or lot, directly or indirectly, in its prosecution." At the same time, however, the legislature refused to consider an ordinance of secession or to call a convention to do so. In effect, the legislators accepted Governor Hicks's recommendation of "a neutral position between our brethren of the North and of the South."16
As a means of avoiding a difficult choice, "neutrality" was a popular stance in the border states during the first weeks after Sumter. But given Maryland's strategic location and the thousands of northern soldiers stationed in the state or passing through it, neutrality soon became an impossible dream. Indigenous Maryland unionism began to assert itself. The state's economic health was based on rail and water connections with the North. President John W. Garrett of the Baltimore and Ohio Railroad was a firm unionist and offered the railroad's facilities to carry troops and supplies from the West. Unionist candidates won all six seats in a special congressional election on June 13. By that time the state had also organized four Union regiments. Marylanders who wanted to fight for the Confederacy had to depart for Virginia to organize Maryland regiments on Confederate soil.
Union officials nonetheless continued to worry about underground Confederate activities in Baltimore. Army officers overreacted by arresting a number of suspected secessionists and imprisoning them in Fort McHenry. One of those arrested was a grandson of Francis Scott Key, who had written "The Star Spangled Banner" when the fort was under British fire a half-century earlier. Another was John Merryman, a wealthy landowner and lieutenant in a secessionist cavalry unit that had burned bridges and torn down telegraph wires during the April troubles. Mer-ryman's lawyer petitioned the federal circuit court in Baltimore for a
16. Lincoln to Winfield Scott, April 25, 1861, in CWL, IV, 344; Dean Sprague, Freedom under Lincoln (Boston, 1965), 31–32; Rhodes, History of the U.S., III, 275–76.
writ of habeas corpus. The senior judge of this court was none other than Roger B. Taney,17 who on May 26 issued a writ ordering the commanding officer at Fort McHenry to bring Merryman before the court to show cause for his arrest. The officer refused, citing Lincoln's April 27 suspension of the writ of habeas corpus in portions of Maryland.
This confrontation became the first of several celebrated civil liberties cases during the war. Article I, Section 9, of the Constitution stipulates that the privilege of the writ of habeas corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In a circuit court ruling on May 28, Taney denied the president's right to suspend the writ. The provision authorizing the suspension, he pointed out, appears in the article of the Constitution specifying the powers of Congress; therefore only Congress can exercise the power. Moreover, Taney continued, the Constitution does not authorize the arrest of civilians by army officers without the sanction of civil courts, nor does it permit a citizen to be held in prison indefinitely without trial.18
The Republican press denounced Taney's opinion as a new species of proslavery sophistry. Lincoln refused to obey it. Several prominent constitutional lawyers rushed into print to uphold the legality of Lincoln's position. The particular location of the habeas corpus clause in the Constitution was irrelevant, they maintained; suspension was an emergency power to be exercised in case of rebellion; the president was the only person who could act quickly enough in an emergency, especially when Congress was not in session. The whole purpose of suspending the writ, said these legal scholars, was to enable army officers to arrest and detain without trial suspected traitors when civil authorities and courts were potentially sympathetic with treason, as in Baltimore.19
In his message to the special session of Congress on July 4, 1861, Lincoln took note of the Merryman case. The president considered his primary duty to be the suppression of rebellion so that the laws of the
17. Under the organization of the federal court system at that time, the Supreme Court Justice from each of the nine circuits served also as the presiding judge of the circuit court.
18. Ex parte Merryman, 17 Fed. Cas. 144.
19. "Opinion of Attorney General Bates, July 5, 1861," in O.R., Ser. II, Vol. 2, pp. 20–30; Reverdy Johnson, Power of the President to Suspend the Habeas Corpus Writ (New York, 1861); Horace Binney, The Privilege of the Writ of Habeas Corpus under the Constitution (Philadelphia, 1862).
United States could be executed in the South. Suspension of the writ was a vital weapon against rebellion. "Are all the laws, but one [the right of habeas corpus], to go unexecuted," asked the president rhetorically, "and the government itself go to pieces, lest that one be violated?"20 Whatever the respective merits of Taney's and Lincoln's positions, Taney commanded no troops and could not enforce his opinion, while Lincoln did and could. Merryman was released after seven weeks at Fort McHenry and indicted in the U. S. circuit court, but his case never came to trial because the government knew that a Maryland jury would not convict him.
While lawyers continued to argue, the army arrested the Baltimore police chief, four police commissioners, and several prominent citizens for their roles in the April 19 riot and their alleged continuing subversive activities. More was yet to come. After Confederate victory in the battle of Manassas on July 21, secessionists in Maryland became bold again. A special session of the legislature in August rang with rhetoric denouncing the "gross usurpation, unjust, tyrannical acts of the President of the United States."21 By the time another extra session was scheduled to meet on September 17, the administration was alarmed by reports of a plot for a simultaneous Confederate invasion of Maryland, insurrection in Baltimore, and enactment of secession by the legislature. Lincoln decided to take drastic action. Union troops sealed off Frederick (where the legislature was meeting)
and arrested thirty-one secessionist members along with numerous other suspected accessories to the plot, including Mayor George Brown of Baltimore. All were imprisoned for at least two months, until after the election of a new legislature in November.
Not surprisingly, this balloting resulted in a smashing victory for the Union party. After the election, prisoners regarded as least dangerous were released upon taking an oath of allegiance to the United States. Most of the rest were released on similar conditions in February 1862. A few hard cases remained in prison until all Maryland political prisoners were freed in December 1862. Although Lincoln justified the prolonged detention of these men on grounds of "tangible and unmistakable evidence" of their "substantial and unmistakable complicity with those in armed rebellion," the government never revealed the evidence
20. CWL, IV, 430.
21. Jean H. Baker, The Politics of Continuity: Maryland Political Parties from 1858 to 1870 (Baltimore, 1973), 58.
or brought any of the prisoners to trial. Some of them, probably including Mayor Brown, were guilty of little more than southern sympathies or lukewarm unionism. They were victims of the obsessive quest for security that arises in time of war, especially civil war.22
A thousand miles to the west of Maryland, events equally dramatic and more violent marked the struggle to keep Missouri in the Union. Dynamic personalities polarized this struggle even more than the situation warranted. On one extreme stood Governor Claiborne Fox Jackson, a proslavery Democrat and onetime leader of the border ruffians. On the other stood Congressman Francis P. Blair, Jr., whose connections in Washington included a brother as postmaster general and a father as an adviser of Lincoln. Blair had used his influence to secure the appointment of Captain Nathaniel Lyon as commander of the soldiers stationed at the U. S. arsenal in St. Louis—the largest arsenal in the slave states, with 60,000 muskets and other arms in storage. A Connecticut Yankee and a twenty-year veteran of the army, Lyon was a free soiler whose intense blue eyes, red beard, and commanding voice offered better clues than his small stature to the zeal and courage that made him an extraordinary leader of men. Lyon had served in Kansas when Claiborne Fox Jackson had led proslavery invaders from Missouri. In 1861 the Lyon and the Fox once again faced each other in a confrontation of greater than Aesopian proportions.
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