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These resolutions are important as showing the stand taken by a large portion of the Union party of the State in regard to any interference, as the result of the war or otherwise, by the General Government with the provisions of the Constitution with regard to slavery.

After the writ of habeas corpus had been thus suspended, martial law, as a consequence, rapidly became all-powerful, and it continued in force during the war. That law is by Judge Black, in his argument before the Supreme Court in the case of ex parte Milligan,¹⁴ shown to be simply the rule of irresponsible force. Law becomes helpless before it. Inter arma silent leges.

On May 25, 1862, Judge Carmichael, an honored magistrate, while sitting in his court in Easton, was, by the provost marshal and his deputies, assisted by a body of military sent from Baltimore, beaten, and dragged bleeding from the bench, and then imprisoned, because he had on a previous occasion delivered a charge to the grand jury directing them to inquire into certain illegal acts and to indict the offenders. His imprisonment in Forts McHenry, Lafayette, and Delaware, lasted more than six months. On December 4, 1862, he was unconditionally released, no trial having been granted him, nor any charges made against him. On June 28, 1862, Judge Bartol, of the Court of Appeals of Maryland, was arrested and confined in Fort McHenry. He was released after a few days, without any charge being preferred against him, or any explanation given.

Spies and informers abounded. A rigid supervision was established. Disloyalty, so called, of any kind was a punishable offense. Rebel colors, the red and white, were prohibited. They were not allowed to appear in shop-windows or on children's garments, or anywhere that might offend the Union sentiment. If a newspaper promulgated disloyal sentiments, the paper was suppressed and the editor imprisoned. If a clergyman was disloyal in prayer or sermon, or if he failed to utter a prescribed prayer, he was liable to be treated in the same manner, and was sometimes so treated. A learned and eloquent Lutheran clergyman came to me for advice because he had been summoned before the provost marshal for saying that a nation which incurred a heavy debt in the prosecution of war laid violent hands on the harvests of the future; but his offense was condoned, because it appeared that he had referred to the "Thirty Years' War" and had made no direct reference to the debt of the United States, and perhaps for a better reason – that he had strong Republican friends among his congregation.

If horses and fodder, fences and timber, or houses and land, were taken for the use of the Army, the owner was not entitled to compensation unless he could prove that he was a loyal man; and the proof was required to be furnished through some well-known loyal person, who, of course, was usually paid for his services. Very soon no one was allowed to vote unless he was a loyal man, and soldiers at the polls assisted in settling the question of loyalty.

Nearly all who approved of the war regarded these things as an inevitable military necessity; but those who disapproved deeply resented them as unwarrantable violations of sacred constitutional rights. The consequence was that friendships were dissolved, the ties of blood severed, and an invisible but well-understood line divided the people. The bitterness and even the common mention of these acts have long since ceased, but the tradition survives and still continues to be a factor, silent, but not without influence, in the politics of the State.

History repeats itself. There were deeds done on both sides which bring to mind the wars of England and Scotland and the border strife between those countries. There were flittings to and fro, and adventures and hairbreadth escapes innumerable. Soldiers returned to visit their homes at the risk of their necks. Contraband of every description, and letters and newspapers, found their way across the border. The military lines were long and tortuous, and vulnerable points were not hard to find, and trusty carriers were ready to go anywhere for the love of adventure or the love of gain.

The women were as deeply interested as the men, and were less apprehensive of personal consequences. In different parts of the city, not excepting its stateliest square, where stands the marble column from which the father of his country looked down, sadly as it were, on a divided people, there might have been found, by the initiated, groups of women who, with swift and skillful fingers, were fashioning and making garments strangely various in shape and kind – some for Northern prisons where captives were confined, some for destitute homes beyond the Southern border, in which only women and children were left, and some for Southern camps where ragged soldiers were waiting to be clad. The work was carried on not without its risks; but little cared the workers for that. Perhaps the sensation of danger itself, and a spirit of resistance to an authority which they refused to recognize, gave zest to their toil; nor did they always think it necessary to inform the good man of the house in which they were assembled either of their presence or of what was going on beneath his roof.

The women who stood by the cause of the Union were not compelled to hide their charitable deeds from the light of day. No need for them to feed and clothe the soldiers of the Union, whose wants were amply supplied by a bountiful Government; but with untiring zeal they visited the military hospitals on missions of mercy, and when the bloody fields of Antietam and Gettysburg were fought, both they and their Southern sisters hastened, though not with a common purpose, to the aid of the wounded and dying, the victims of civil strife and children of a common country.

CHAPTER VIII

GENERAL BANKS IN COMMAND. – MARSHAL KANE ARRESTED. – POLICE COMMISSIONERS SUPERSEDED. – RESOLUTIONS PASSED BY THE GENERAL ASSEMBLY. – POLICE COMMISSIONERS ARRESTED. – MEMORIAL ADDRESSED BY THE MAYOR AND CITY COUNCIL TO CONGRESS. – GENERAL DIX IN COMMAND. – ARREST OF MEMBERS OF THE GENERAL ASSEMBLY, THE MAYOR AND OTHERS. – RELEASE OF PRISONERS. – COLONEL DIMICK.

On the 10th of June, 1861, Major-General Nathaniel P. Banks, of Massachusetts, was appointed in the place of General Cadwallader to the command of the Department of Annapolis, with headquarters at Baltimore. On the 27th of June, General Banks arrested Marshal Kane and confined him in Fort McHenry. He then issued a proclamation announcing that he had superseded Marshal Kane and the commissioners of police, and that he had appointed Colonel John R. Kenly, of the First Regiment of Maryland Volunteers, provost marshal, with the aid and assistance of the subordinate officers of the police department.

The police commissioners, including the mayor, offered no resistance, but adopted and published a resolution declaring that, in the opinion of the board, the forcible suspension of their functions suspended at the same time the active operation of the police law and put the officers and men off duty for the present, leaving them subject, however, to the rules and regulations of the service as to their personal conduct and deportment, and to the orders which the board might see fit thereafter to issue, when the present illegal suspension of their functions should be removed.

The Legislature of Maryland, at its adjourned session on the 22d of June, passed a series of resolutions declaring that the unconstitutional and arbitrary proceedings of the Federal Executive had not been confined to the violation of the personal rights and liberties of the citizens of Maryland, but had been so extended that the property of no man was safe, the sanctity of no dwelling was respected, and that the sacredness of private correspondence no longer existed; that the Senate and House of Delegates of Maryland felt it due to her dignity and independence that history should not record the overthrow of public freedom for an instant within her borders, without recording likewise the indignant expression of her resentment and remonstrance, and they accordingly protested against the oppressive and tyrannical assertion and exercise of military jurisdiction within the limits of Maryland over the persons and property of her citizens by the Government of the United States, and solemnly declared the same to be subversive of the most sacred guarantees of the Constitution, and in flagrant violation of the fundamental and most cherished principles of American free government.

On the first of July, the police commissioners were arrested and imprisoned by order of General Banks, on the ground, as he alleged in a proclamation, that the commissioners had refused to obey his decrees, or to recognize his appointees, and that they continued to hold the police force for some purpose not known to the Government.

General Banks does not say what authority he had to make decrees, or what the decrees were which the commissioners had refused to obey; and as on the 27th of June he had imprisoned the marshal of police, and had put a provost marshal in his place, retaining only the subordinate officers of the police department, and had appointed instead of the men another body of police, all under the control of the provost marshal; and as the commissioners had no right to discharge the police force established by a law of the State, and were left with no duties in relation to the police which they could perform, it is very plain that, whatever motive General Banks may have had for the arrest and imprisonment of the commissioners, it is not stated in his proclamation.

One of the commissioners, Charles D. Hinks, was soon released in consequence of failing health.

On the day of the arrest of the police commissioners the city was occupied by troops, who in large detachments, infantry and artillery, took up positions in Monument Square, Exchange Place, at Camden-street Station and other points, and they mounted guard and bivouacked in the streets for more than a week.

On July 18th, the police commissioners presented to Congress a memorial in which they protested very vigorously against their unlawful arrest and imprisonment.

On the 23d day of July, 1861, the mayor and city council of Baltimore addressed a memorial to the Senate and House of Representatives of the United States, in which, after describing the condition of affairs in Baltimore, they respectfully, yet most earnestly, demanded, as matter of right, that their city might be governed according to the Constitution and laws of the United States and of the State of Maryland, that the citizens might be secure in their persons, houses, papers and effects against unreasonable searches and seizures; that they should not be deprived of life, liberty or property without due process of law; that the military should render obedience to the civil authority; that the municipal laws should be respected, the officers released from imprisonment and restored to the lawful exercise of their functions, and that the police government established by law should be no longer impeded by armed force to the injury of peace and order. It is perhaps needless to add that the memorial met with no favor.

On the 7th of August, 1861, the Legislature of the State, in a series of resolutions, denounced these proceedings in all their parts, pronouncing them, so far as they affected individuals, a gross and unconstitutional abuse of power which nothing could palliate or excuse, and, in their bearing upon the authority and constitutional powers and privileges of the State herself, a revolutionary subversion of the Federal compact.

The Legislature then adjourned, to meet on the 17th of September.

On the 24th of July, 1861, General Dix had been placed in command of the Department, with his headquarters in Baltimore. On that day he wrote from Fort McHenry to the Assistant Adjutant-General for re-enforcement of the troops under his command. He said that there ought to be ten thousand men at Baltimore and Annapolis, and that he could not venture to respond for the quietude of the Department with a smaller number. At Fort McHenry, as told by his biographer, he exhibited to some ladies of secession proclivities an immense columbiad, and informed them that it was pointed to Monument Square, and if there was an uprising that this piece would be the first he would fire. But the guns of Fort McHenry were not sufficient. He built on the east of the city a very strong work, which he called Fort Marshall, and he strengthened the earthwork on Federal Hill, in the southern part, so that the city lay under the guns of three powerful forts, with several smaller ones. Not satisfied with this, on the 15th of September, 1862, General Dix, after he had been transferred to another department, wrote to Major-General Halleck, then Commander-in-Chief, advising that the ground on which the earthwork on Federal Hill had been erected should be purchased at a cost of one hundred thousand dollars, and that it should be permanently fortified at an additional expense of $250,000. He was of opinion that although the great body of the people were, as he described them, eminently distinguished for their moral virtues, Baltimore had always contained a mass of inflammable material, which would ignite on the slightest provocation. He added that "Fort Federal Hill completely commanded the city, and is capable, from its proximity to the principal business quarters, of assailing any one without injury to the others. The hill seems to have been placed there by Nature as a site for a permanent citadel, and I beg to suggest whether a neglect to appropriate it to its obvious design would not be an unpardonable dereliction of duty."

These views were perhaps extreme even for a major-general commanding in Baltimore, especially as by this time the disorderly element which infests all cities had gone over to the stronger side, and was engaged in the pious work of persecuting rebels. General Halleck, even after this solemn warning, left Federal Hill to the protection of its earthwork.

The opinion which General Dix had of Baltimore extended, though in a less degree, to a large portion of the State, and was shared, in part at least, not only by the other military commanders, but by the Government at Washington.

On the 11th of September, 1861, Simon Cameron, Secretary of War, wrote the following letter to Major-General Banks, who was at this time in command of a division in Maryland:

"War Department, September 11, 1861.

"General.– The passage of any act of secession by the Legislature of Maryland must be prevented. If necessary, all or any part of the members must be arrested. Exercise your own judgment as to the time and manner, but do the work effectively."

On the 12th of September, Major-General McClellan, Commander-in-Chief of the Army of the Potomac, wrote a confidential letter to General Banks reciting that "after full consultation with the President, Secretary of State, War, etc., it has been decided to effect the operation proposed for the 17th." The 17th was the day fixed for the meeting of the General Assembly, and the operation to be performed was the arrest of some thirty members of that body, and other persons besides. Arrangements had been made to have a Government steamer at Annapolis to receive the prisoners and convey them to their destination. The plan was to be arranged with General Dix and Governor Seward, and the letter closes with leaving this exceedingly important affair to the tact and discretion of General Banks, and impressing on him the absolute necessity of secrecy and success.

Accordingly, a number of the most prominent members of the Legislature, myself, as mayor of Baltimore, and editors of newspapers, and other citizens, were arrested at midnight. I was arrested at my country home, near the Relay House on the Baltimore and Ohio Railroad, by four policemen and a guard of soldiers. The soldiers were placed in both front and rear of the house, while the police rapped violently on the front door. I had gone to bed, but was still awake, for I had some apprehension of danger. I immediately arose, and opening my bed-room window, asked the intruders what they wanted. They replied that they wanted Mayor Brown. I asked who wanted him, and they answered, the Government of the United States. I then inquired for their warrant, but they had none. After a short time spent in preparation I took leave of my wife and children, and closely guarded, walked down the high hill on which the house stands to the foot, where a carriage was waiting for me. The soldiers went no farther, but I was driven in charge of the police seven miles to Baltimore and through the city to Fort McHenry, where to my surprise I found myself a fellow-prisoner in a company of friends and well-known citizens. We were imprisoned for one night in Fort McHenry, next in Fort Monroe for about two weeks, next in Fort Lafayette for about six weeks, and finally in Fort Warren. Henry May, member of Congress from Baltimore, was arrested at the same time, but was soon released.

Col. Scharf, in his "History of Maryland," Volume III, says: "It was originally intended that they (the prisoners) should be confined in the fort at the Dry Tortugas, but as there was no fit steamer in Hampton Roads to make the voyage, the programme was changed."¹⁵

The apprehension that the Legislature intended to pass an act of secession, as intimated by Secretary Cameron, was, in view of the position in which the State was placed, and the whole condition of affairs, so absurd that it is difficult to believe that he seriously entertained it. The blow was no doubt, however, intended to strike with terror the opponents of the war, and was one of the effective means resorted to by the Government to obtain, as it soon did, entire control of the State.

As the events of the 19th of April had occurred nearly five months previously, and I was endeavoring to perform my duties as mayor, in obedience to law, without giving offense to either the civil or military authorities of the Government, the only apparent reason for my arrest grew out of a difficulty in regard to the payment of the police appointed by General Banks. In July a law had been passed by Congress appropriating one hundred thousand dollars for the purpose of such payment, but it was plain that a similar expenditure would not long be tolerated by Congress. In this emergency an intimation came to me indirectly from Secretary Seward, through a common acquaintance, that I was expected to pay the Government police out of the funds appropriated by law for the city police. I replied that any such payment would be illegal and was not within my power.

Soon afterwards I received the following letter from General Dix, which I insert, together with the correspondence which followed:

"Headquarters Department of Pennsylvania,

"Baltimore, Md., September 8, 1861.

"To Hon. Geo. Wm. Brown, Mayor of the City of Baltimore.

"Sir: – Reasons of state, which I deem imperative, demand that the payment of compensation to the members of the old city police, who were, by a resolution of the Board of Police Commissioners, dated the 27th of Jane last, declared 'off duty,' and whose places were filled in pursuance of an order of Major-General Banks of the same date, should cease. I therefore direct, by virtue of the authority vested in me as commanding officer of the military forces of the United States in Baltimore and its vicinity, that no further payment be made to them.

"Independently of all other considerations, the continued compensation of a body of men who have been suspended in their functions by the order of the Government, is calculated to bring its authority into disrespect; and the extraction from the citizens of Baltimore by taxation, in a time of general depression and embarrassment, of a sum amounting to several hundred thousand dollars a year for the payment of nominal officials who render it no service, cannot fail by creating widespread dissatisfaction to disturb the quietude of the city, which I am most anxious to preserve.

"I feel assured that the payment would have been voluntarily discontinued by yourself, as a violation of the principle on which all compensation is bestowed – as a remuneration for an equivalent service actually performed – had you not considered yourself bound by existing laws to make it.

"This order will relieve you from the embarrassment, and I do not doubt that it will be complied with.

"I am, very respectfully,

"Your obedient servant,

"John A. Dix,

"Major-General Commanding."

"Mayor's Office, City Hall,

"Baltimore, September 5, 1861.

"Major-General John A. Dix, Baltimore, Md.

"Sir: – I was not in town yesterday, and did not receive until this morning your letter of the 3d inst. ordering that no further payment be made to the members of the city police.

"The payments have been made heretofore in pursuance of the laws of the State, under the advice of the City Counsellor, by the Register, the Comptroller and myself.

"Without entering into a discussion of the considerations which you have deemed sufficient to justify this proceeding, I feel it to be my duty to enter my protest against this interference, by military authority, with the exercise of powers lawfully committed by the State of Maryland to the officers of the city corporation; but it is nevertheless not the intention of the city authorities to offer resistance to the order which you have issued, and I shall therefore give public notice to the officers and men of the city police that no further payments may be expected by them.

"There is an arrearage of pay of two weeks due to the force, and the men have by the law and rules of the board been prevented from engaging in any other business or occupation. Most of them have families, who are entirely dependent for support on the pay received.

"I do not understand your order as meaning to prohibit the payment of this arrearage, and shall therefore proceed to make it, unless prevented by your further order.

"I am, very respectfully,

"Your obedient servant,

"Geo. Wm. Brown,

"Mayor of Baltimore."

"Headquarters Department of Pennsylvania,

"Baltimore, Md., September 9, 1861.

"Hon. Geo. Wm. Brown, Mayor of the City of Baltimore.

"Sir: – Your letter of the 5th inst. was duly received. I cannot, without acquiescing in the violation of a principle, assent to the payment of an arrearage to the members of the old city police, as suggested in the closing paragraph of your letter.

"It was the intention of my letter to prohibit any payment to them subsequently to the day on which it was written.

"You will please, therefore, to consider this as the 'further order' referred to by you.

"I am, very respectfully,

"Your obedient servant,

"John A. Dix,

"Major-General Commanding."

"Mayor's Office, City Hall,

"Baltimore, September 11, 1861.

"Major-General John A. Dix, Baltimore.

"Sir: – I did not come to town yesterday until the afternoon, and then ascertained that my letters had been sent out to my country residence, where, on my return last evening, I found yours of the 9th, in reply to mine of the 5th instant, awaiting me. It had been left at the mayor's office yesterday morning.

"Before leaving the mayor's office, about three o'clock P. M. on the 9th instant, and not having received any reply from you, I had signed a check for the payment of arrears due the police, and the money was on the same day drawn out of the bank and handed over to the proper officers, and nearly the entire amount was by them paid to the police force before the receipt of your letter.

"The suggestion in your letter as to the 'violation of a principle' requires me to add that I recognize in the action of the Government of the United States in the matter in question nothing but the assertion of superior force.

"Out of regard to the great interests committed to my charge as chief magistrate of the city, I have yielded to that force, and do not feel it necessary to enter into any discussion of the principles upon which the Government sees fit to exercise it.

"Very respectfully,

"Your obedient servant,

"Geo. Wm. Brown,

"Mayor."

The reasons which General Dix assigned for prohibiting me from paying the arrearages due the police present a curious combination. First, there were reasons of State; next, the respect due to the Government; third, his concern for the taxpayers of Baltimore; fourth, the danger to the quiet of the city which he apprehended might arise from the payment; and, finally, there was a principle which he must protect from violation, but what that principle was he did not state.

A striking commentary on these reasons was furnished on the 11th of December, 1863, by a decision of the Court of Appeals of Maryland in the case of the Mayor, etc., of Baltimore vs. Charles Howard and others, reported in 20th Maryland Rep., p. 335. The question was whether the interference by the Government of the United States with the Board of Police and police force established by law in the city of Baltimore was without authority of law and did in any manner affect or impair the rights or invalidate the acts of the board. The court held that, though the board was displaced by a force to which they yielded and could not resist, their power and rights under their organization were still preserved, and that they were amenable for any dereliction of official duty, except in so far as they were excused by uncontrollable events. And the court decided that Mr. Hinks, one of the police commissioners, whose case was alone before the court, was entitled to his salary, which had accrued after the board was so displaced.

Subsequently, after the close of the war, the Legislature of the State passed an act for the payment of all arrearages due to the men of the police subsequent to their displacement by the Government of the United States and until their discharge by the Government of the State.

It will be perceived that General Dix delayed replying to my letter of the 5th of September until the 9th; that his reply was not left at the mayor's office until the tenth, and that in the meantime, on the afternoon of the 9th, after waiting for his reply for four days, I paid the arrears due the police, as I had good reason to suppose he intended I should.

A friend of mine, a lawyer of Baltimore, and a pronounced Union man, has, since then, informed me that General Dix showed him my letter of the 5th before my arrest; that my friend asked him whether he had replied to it, and the General replied he had not. My friend answered that he thought a reply was due to me. From all this it does not seem uncharitable to believe that the purpose of General Dix was to put me in the false position of appearing to disobey his order and thus to furnish an excuse for my imprisonment. This lasted until the 27th of November, 1862, a short time after my term of office had expired, when there was a sudden and unexpected release of all the State prisoners in Fort Warren, where we were then confined.

On the 26th of November, 1862, Colonel Justin Dimick, commanding at Fort Warren, received the following telegraphic order from the Adjutant-General's Office, Washington: "The Secretary of War directs that you release all the Maryland State prisoners, also any other State prisoners that may be in your custody, and report to this office."

In pursuance of this order, Colonel Dimick on the following day released from Fort Warren the following State prisoners, without imposing any condition upon them whatever: Severn Teackle Wallis, Henry M. Warfield, William G. Harrison, T. Parkin Scott, ex-members of the Maryland Legislature from Baltimore; George William Brown, ex-Mayor of Baltimore; Charles Howard and William H. Gatchell, ex-Police Commissioners; George P. Kane, ex-Marshal of Police; Frank Key Howard, one of the editors of the Baltimore Exchange; Thomas W. Hall, editor of the Baltimore South; Robert Hull, merchant, of Baltimore; Dr. Charles Macgill, of Hagerstown; William H. Winder, of Philadelphia; and B. L. Cutter, of Massachusetts.

General Wool, then in command in Baltimore, issued an order declaring that thereafter no person should be arrested within the limits of the Department except by his order, and in all such cases the charges against the accused party were to be sworn to before a justice of the peace.

As it was intimated that these gentlemen had entered into some engagement as the condition of their release, Mr. Wallis, while in New York on his return home, took occasion to address a letter on the subject to the editor of the New York World, in which he said: "No condition whatever was sought to be imposed, and none would have been accepted, as the Secretary of War well knew. Speaking of my fellow-prisoners from Maryland, I have a right to say that they maintained to the last the principle which they asserted from the first – namely, that, if charged with crime, they were entitled to be charged, held and tried in due form of law and not otherwise; and that, in the absence of lawful accusation and process, it was their right to be discharged without terms or conditions of any sort, and they would submit to none."

Many of our fellow-prisoners were from necessity not able to take this stand. There were no charges against them, but there were imperative duties which required their presence at home, and when the Government at Washington adopted the policy of offering liberty to those who would consent to take an oath of allegiance prepared for the occasion, they had been compelled to accept it.

Before this, in December, 1861, the Government at Washington, on application of friends, had granted me a parole for thirty days, that I might attend to some important private business, and for that time I stayed with kind relatives, under the terms of the parole, in Boston.

The following correspondence, which then took place, will show the position which I maintained: