A time liberties weren't priority

"Generally, Chief Executives in wartime are not very sympathetic to the protection of civil liberties ... "- Chief Justice William H. Rehnquist, 1999

Early in the Civil War, at about 2 in the morning on May 25, 1861, armed Union troops rousted a Southern sympathizer named John Merryman out of bed at his home in Cockeysville and hauled him off to jail at Fort McHenry, on the tip of the Locust Point peninsula in Baltimore.


He was among the first of more than 2,000 political prisoners mostly from Baltimore and Maryland held at Fort McHenry by the U.S. Army without being charged, put on trial or allowed the writ of habeas corpus, the ancient right of a prisoner to be brought before a judge to ascertain the legality of his detention.

Merryman became the focus of a famous opinion on the rights of civilians during wartime, written by one of Rehnquist's predecessors, Chief Justice Roger B. Taney, a Marylander born on a plantation in Calvert County and buried in Frederick.


Taney, author of the Dred Scott decision, challenged President Abraham Lincoln's suspension of habeas corpus.

Present-day defenders of the assumption of President Bush's extraordinary war powers find legal precedent in Lincoln's suspension of habeas corpus and sanction of the arrest and detention of civilians by Union soldiers during the Civil War.

Bush, through U.S. Attorney General John Ashcroft, has proposed using military tribunals to arrest, try, sentence and even execute foreign nationals deemed terrorists.

"History repeats itself," says Scott Sumpter Sheads, a veteran Park Service Ranger at Fort McHenry, whose history Baltimore During the Civil War, deals extensively with prisoners at the fort.

The Senate has scheduled hearings tomorrow on the use of military tribunals in the administration's war on terrorism. During the Civil War, Congress reviewed Lincoln's suspension of habeas corpus only after two years, then passed legislation supporting the president.

The Civil War antecedents for President Bush's secret military tribunals weighed harshly especially on Marylanders. Sheads calls the Union presence "the occupation of Baltimore."

At various times during the war, the mayor of Baltimore was interned at Fort McHenry, along with the police chief and the entire Board of Police, an ex-governor of Maryland and 30 members of the legislature.

Railroad magnate Ross Winans, a Southern sympathizer who manufactured steel pikes for use against abolitionist northerners, was imprisoned at Fort McHenry until he took an oath of allegiance to the United States.


Gen. John Adams Dix, one of the tougher Union commanders overseeing Maryland, ordered two "nunneries" to be put under police surveillance to watch for undisclosed "Winans arms," according to Charles B. Clark, a historian who wrote about Federal control of Maryland for the Maryland Historical Magazine.

Nine newspapers were suppressed temporarily or permanently, says Sidney T. Matthews, another Maryland Historical Magazine writer. At least a dozen newspaper owners and editors were locked up at Fort McHenry, including Frank Key Howard, grandson of Francis Scott Key, who wrote the "Star Spangled Banner" after watching the bombardment of the fort.

Howard wrote an account of his jail time at Fort McHenry and other Union prisons in Fourteen Months in the American Bastille. Two other publishers were arrested for selling it, Sheads writes.

Union soldiers dragged Judge Richard Bennett Carmichael, a fervent rebel sympathizer, from his bench while he presided over Circuit Court in Easton, pistol-whipped him when he resisted and packed him off to Fort McHenry.

"The arrest of Judge Carmichael drove many Marylanders to intense antagonism toward the federal government," Clark observes.

For Lincoln, holding the Union together took precedence over the civil liberties of American citizens. Maryland was in a unique and uncomfortable position in the months after Lincoln's election in 1860. He had come in a poor fourth with less than 2,300 votes, about 2.5 percent of the 92,502 votes cast. John Breckenridge, the choice of Southern Democrats, won with 42,482, only a 1,000 or so votes more than Stephen Douglas, the Democrat.


By Inauguration Day in March, six Deep South states and Texas had seceded and formed the Confederate States of America and elected Jefferson Davis president. On April 12, 1861, South Carolina fired on Fort Sumter. The remaining four states of the Confederacy, including Virginia, seceded and the Civil War was underway.

Lincoln called for 75,000 volunteers to protect Washington. On April 19, a Baltimore mob attacked the first troops from the North on Pratt Street while they were trying to change trains for Washington. Twenty-one soldiers and civilians were killed.

Eight days later, Lincoln suspended habeas corpus.

"The loss of Baltimore would have been the loss of Maryland," writes Morgan Dix in a memoir of his father quoted by Clark. "The loss of Maryland would have been the loss of the national capital, and perhaps, if not probably, the loss of the Union cause."

So when old Justice Taney ordered John Merryman's release from Fort McHenry in a decision that has come to be known as Ex Parte Merryman, Lincoln ignored him.

"Here we have an illustration of an old Roman law," Rehnquist said last year in a speech to the Norfolk and Portsmouth Bar Association, "Inter Arma Silent Leges - which loosely translated means that in time of war the laws are silent."


Merryman, who had burned railroad bridges between Baltimore and points north after the Pratt Street riots, was released after a couple of months at Fort McHenry. He did quite well after the war as did many Confederate sympathizers in Maryland. He was elected treasurer of Maryland in 1870 and a member of the House of Delegates in 1874.

Hayfields, the farm where he was arrested, is now a golf course.