On April 25, the thick gloom that had blanketed the capital for more than a week suddenly lifted as the crack New York Seventh arrived to thunderous cheers. “If they had been delayed two days longer revolution would have broken out in our midst,” a relieved Frontier Guardsman told his wife.97 Lincoln and Seward greeted them at the navy yard and shook hands all around. One soldier recalled that the president showed a “serious and almost fatherly demeanor” as “he bent slightly in taking our hands .… Indeed one hand was not enough to express his feeling, and with his left he took each of us by the elbow and gave a hearty pressure.” As the troops marched past the White House, Lincoln, who was described as “the happiest-looking man in town,” reportedly “smiled all over” and enthusiastically complimented the soldiers. During the following weeks, he regularly visited their camp.98
Even more encouraging was word that several more regiments were on their way from Annapolis, having skirted Baltimore by a water route from Perryville on the Susquehanna River to the Maryland capital. Those units came pouring into Washington during the last week of April, ensuring the safety of the city. Lincoln’s decision to have those reinforcements avoid Baltimore, despite severe criticism from many Republicans, helped prevent Maryland from seceding. As an abolitionist journal pointed out, if he had “done anything to arouse yet more the passions and to unite the energies of the Marylanders, such as the assertion of the perfect right of a free passage for troops through Baltimore and his determination to enforce it, Washington might have been taken and he made prisoner by a coup de main before help could arrive.”99
Fearing that Maryland lawmakers would pass an ordinance of secession, Massachusetts General Benjamin F. Butler urged Lincoln “to bag the whole nest of traitorous Maryland Legislators and bring them in triumph” to Washington. The president rejected that advice, telling Winfield Scott on April 25: “The Maryland Legislature assembles to-morrow at An[n]apolis; 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 defence, 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 can not 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. If we arrest them, we can not long hold them as prisoners; and when liberated, they will immediately re-assemble, and take their action. And, precisely the same if we simply disperse them. They will immediately re-assemble 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.”100
At the last minute, the Maryland Legislature decided to convene in Frederick, a Unionist stronghold, instead of Annapolis. The secessionist tide, which had flowed so strongly in eastern Maryland, was now ebbing. Federal soldiers occupied strong positions near Baltimore and the state capital. On May 9, troops once again began passing through the Monumental City en route to Washington. Rather than calling for a secession convention, the General Assembly sent a deputation to Lincoln to learn what military action he planned in their state and to protest various measures taken by the administration. On May 4, he bluntly told them “that while the Government had no intention to retaliate for Baltimore outrages by force of arms, it had determined upon measures to secure the unobstructed passage of troops through their State, and would carry them out at all hazards.” He also assured them that “the public interest and not any spirit of revenge should actuate his measures.”101 Nine days later, General Butler marched a thousand troops by night into Baltimore and occupied Federal Hill, thus making sure the city would remain pacified. After the legislature adjourned on May 14, Governor Hicks complied with Lincoln’s proclamation by issuing a call for four militia regiments. In mid-June, Unionist candidates won elections in sixteen of the state’s twenty-one counties, signifying that less than two months after the Baltimore riots, loyalty to the Union had reasserted itself in Maryland.
As Lincoln struggled to nurture Unionism in Maryland, he was assisted by Governor Hicks, who during the secession winter had supported the formation of a border state nation as a buffer between North and South. Bucking strong pressure, Hicks refused to call a secession convention. In September, however, the Lincoln administration feared that the Maryland Legislature, scheduled to meet at Frederick, might yet adopt an ordinance of secession. It was rumored that disunionists planned a coup de main, joining forces with Virginia rebels. To counter that possibility, Lincoln and Seward arranged with Generals George B. McClellan, John A. Dix, and Nathaniel P. Banks to have pro-secession legislators detained before they could reach Frederick. This decision, carried out primarily by the detective Allan Pinkerton, led to the arrest of fourteen legislators and guaranteed that the state would remain in the Union. In November, the election of a pro-Union governor, Augustus Bradford, along with a lopsided Unionist majority in the legislature, sealed the state’s loyalty.
Civil libertarians objected that the arrest of the Maryland legislators was unlawful. In reply, Lincoln argued that the “public safety renders it necessary that the grounds of these arrests should at present be withheld, but at the proper time they will be made public. Of one thing the people of Maryland may rest assured, that no arrest has been made, or will be made, not based on substantial and unmistakable complicity with those in armed rebellion against the Government of the United States. In no case has an arrest been made on mere suspicion, or through personal or partisan animosities; but in all cases the Government is in possession of tangible and unmistakable evidence, which will, when made public, be satisfactory to every loyal citizen.”102
Privately, General Dix acknowledged that in arresting the legislators, breaking up the Baltimore police department, and taking similar steps, he had acted “on the ‘plea of necessity’ alone.” In November, he confided to a fellow New York Democratic leader that “I have not had the time to look into the Constitution since I came.—‘Inter arma silent leges!’ Alas that it should be so!” He had received no specific instructions from the administration, and if his action were to be judged “by the Constitution or the laws, I am afraid you will make me out to be a very poor democrat. But two assurances I can give—that Maryland shall not go out of the Union, and that I have done & shall do nothing tyrannically, wantonly or unnecessary to the fixed purpose I have had in view.”103 McClellan, who had authorized Dix to make arrests “even where there is want of positive proof of their guilt,” lauded his action in dealing with the legislators.104 Dix said he was “not sure as to the President, though I think he regards my policy as the true remedy for the special phase of the malady of secessionism, which existed on the Eastern shore of Maryland. Whether he will regard it as the proper treatment for other phases of the disease I do not know.”105
Stretching the Constitution: Emergency Measures
In the immediate aftermath of the attack on Sumter, Lincoln took a few relatively small steps without congressional approval: a convoy was dispatched to escort ships bearing gold from California; over a dozen merchant vessels were bought or rented to protect the coast and enforce a blockade; three prominent New Yorkers were given $2 million to spend as they saw fit for national defense; other leading private citizens of the Empire State received authorization to raise troops and provide supplies; and two naval officers were empowered to arm civilian vessels and use them to patrol the Potomac River and Chesapeake Bay. In explaining these measures a year later, the president said that there “w
as no adequate and effective organization for the public defence. Congress had indefinitely adjourned. There was no time to convene them. It became necessary for me to choose whether, using only the existing means, agencies, and processes which Congress had provided, I should let the government fall at once into ruin, or whether, availing myself of the broader powers conferred by the Constitution in cases of insurrection, I would make an effort to save it with all its blessings for the present age and for posterity. … The several departments of the government at that time contained so large a number of disloyal persons that it would have been impossible to provide safely, through official agents only, for the performance of the duties thus confided to citizens favorably known for their ability, loyalty, and patriotism. … I believe that by these and other similar measures taken in that crisis, some of which were without any authority of law, the government was saved from overthrow.”106
More serious extraconstitutional steps were also taken in the eleven weeks between Sumter’s fall and the convening of Congress in July. Lincoln acted unilaterally in the belief that his emergency measures would be endorsed retrospectively by the House and senate and thus made constitutional. On April 19, he declared his intention to blockade ports in the seven seceded states; a week later he extended it to cover Virginia and North Carolina. He justified this action as a response to the Confederacy’s announcement on April 17 that it would issue letters of marque, authorizing privateers to prey on Union shipping. In the momentous cabinet session of April 14, a majority agreed with Gideon Welles, who maintained that a blockade was more appropriate for a war between two nations rather than for a rebellion. Better to simply close the ports in the seceded states, argued the navy secretary, who understandably feared that the Union fleet was too small and antiquated to enforce a blockade. Attorney General Bates believed that a blockade was “an act of war, which a nation cannot wage against itself” but that closing ports was an entirely different matter. Seward, however, countered that closing Southern ports might provoke foreign nations to declare war. Lincoln at first sided with Welles, but after Seward privately explained his position, the president changed his mind and told the cabinet the following day “that we could not afford to have two wars on our hands at once” and therefore he would declare a blockade.107
Seward was right, for the British government had warned that closing the ports where the administration had no control would be tantamount to an illegal paper blockade, which Her Majesty’s government would not honor. In July, when Congress did authorize the president to close Confederate ports, Lincoln hesitated to do so. In response to Orville H. Browning’s question, “if we were in any danger of becoming involved in difficulties with foreign powers,” the president, looking quite melancholy, replied affirmatively, for Britain and France “were determined to have the cotton crop as soon as it matured.” The South’s coastline “was so extensive that we could not make the blockade of all the Ports effectual,” and the British government “was now assuming the ground that a nation had no right, whilst a portion of its citizens were in revolt to close its ports or any of them against foreign Nations.” Congress had just enacted a law “authorizing him, in his discretion, to close our ports, but if he asserted the right of closing such as we could not blockade, he had no doubt it would result in foreign war, and that under the circumstances we had better increase the navy as fast as we could and blockade such ports as our force would enable us to, and say nothing about the rest.”108 In February 1862, the British did officially recognize the Union blockade, despite Confederate protestations that it was ineffective and hence illegal.
Realizing that the 75,000 militiamen called up on April 15 would be insufficient, Lincoln two weeks later ordered the expansion of the armed forces far beyond what Congress had authorized. On May 3, an official proclamation specified that 42,034 volunteers would be recruited to serve three years; in addition, 22,714 soldiers were to be added to the regular army and 18,000 sailors to the navy. Here Lincoln violated the explicit provision of the Constitution empowering Congress to raise armies. On July 1, Lincoln explained to Lyman Trumbull “that he did not know of any law to authorize some things which he had done; but he thought there was a necessity for them, & that to save the constitution & the laws generally, it might be better to do some illegal acts, rather than suffer all to be overthrown.”109
Such boldness helped reassure some Northern doubters. On May 2, Henry W. Bellows, a prominent New York divine, noted that the “Cabinet is gaining confidence in the country & from the country every day,” and predicted that “much hasty criticism” would soon be withdrawn. The president’s stock was rising, for, though “not great,” he was nevertheless “very honest & resolute.” (Soon thereafter, Bellows spoke with the president and was less complimentary, finding him “a good, sensible, honest man,” but “utterly devoid of dignity” and “without that presence that assures confidence in his adequacy to his trying position.” He had a “sweet smile” and a “patient, slow, firm mind,” though Bellows had his doubts about its “comprehensiveness.”)110
Lincoln’s most controversial act was authorizing General Scott to suspend the writ of habeas corpus, thus allowing the government to arrest and detain persons without charges. Seward recommended that step, but Lincoln at first demurred. When the secretary of state argued that “perdition was the sure penalty for further hesitation,” however, the president acquiesced.111 The initial suspension, limited to military lines between Washington and Philadelphia, was authorized on April 27. Two weeks later Lincoln suspended the writ in Florida. In early July, he authorized Scott to do the same along the military lines between Washington and New York. Responding to several arrests in Washington, he counseled restraint in using the power thus granted: “Unless the necessity for … arbitrary arrests is manifest, and urgent, I prefer that they should cease.”112
In May, one John Merryman, a wealthy Marylander serving as a lieutenant in a pro-secession cavalry troop that had helped cut telegraph wires and burn bridges, was arrested for preparing men to serve in the Confederate army. He sued for his freedom, arguing that the suspension of the writ was illegal. Roger B. Taney, the octogenarian chief justice of the U.S. Supreme Court, heard the case in his role as a circuit court of appeals judge. (In that era, Supreme Court justices served on both the high court and the appeals bench.) Taney ruled that Lincoln had acted unconstitutionally, for, he argued, only Congress, not the president, was authorized to suspend the writ of habeas corpus. In a judicial stump speech, the Maryland slaveowner declared that if Lincoln were permitted to usurp that congressional power, “the people of the United States are no longer living under a government of law; but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.” Referring to the president, Taney added that it was “up to that high officer, in fulfillment of his constitutional obligation to ‘take care that the laws be faithfully executed,’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”113 Lincoln ignored the order, and Merryman remained in prison for a few weeks.
Agreeing with Taney was former Maryland Congressman Henry Winter Davis, who declared that the proclamation suspending habeas corpus was “illegal in every line.” He feared “there is an utter oblivion of constitutional restraints at Washington. Lincoln is open to good advice; it must be that he cannot get it. He actually did not know till I shewed him the law, that he was not obliged to call for troops through the Governors, but could send his order to any officer of the militia!!”114
On July 4, in a message to Congress, Lincoln responded to Taney’s arguments. In a draft of that important document (far more personal than the final version submitted to the House and the senate), he clearly explained his rationale: “The whole of the laws which I was sworn to take care that they be faithfully executed, were being resisted, and failing to be executed, in nearly one third of the states. Must I have a
llowed them to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizens liberty, that practically, it relieves more of the guilty, than the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case I should consider my official oath broken if I should allow the government to be overthrown, when I might think that disregarding the single law would tend to preserve it—But, in this case I was not, in my own judgment, driven to this ground—In my opinion I violated no law—The provision of the Constitution that ‘The previlege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it’ is equivalent to a provision—is a provision—that such previlege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. I decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the previlege of the writ of habeas corpus, which I authorized to be made. Now it is insisted that Congress, and not the executive, is vested with this power—But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision plainly was made for a dangerous emergency, I can not bring myself to believe that the framers of that instrument intended that in every case the danger should run it’s course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”115
Abraham Lincoln: A Life, Volume 2 Page 27
