 In 1814, Francis Scott Key watched as a British ship bombarded Fort McHenry, which was the only obstacle between it and the city of Baltimore. Key did not support the war, but when he stood on the deck of a sailing ship and watched the cannonballs fire toward a fort waving the flag of the United States, there was no question whose side he was on. He did not want to see the flag fall. Key was on the ship negotiating the release of one of his friends who had been taken prisoner, but they weren't allowed to leave until the bombardment was over. The attack on Fort McHenry lasted for more than 24 hours, starting at 6 a.m. on September 13th and ending at 7 a.m. the following day. Unlike the bombardment of Fort Sumter that would take place nearly 50 years later, the American soldiers did suffer casualties, four dead and two dozen wounded, including a woman who was cut in half by a cannonball while she was trying to bring supplies to the troops holding down the fort. Francis Scott Key watched helplessly from eight miles away during the entire episode. Finally, when the Brits ran out of ammunition, the bombardment ended and they sailed away. When the smoke cleared, Key could see the flag still waving above the fort. For those of you who have been to the American History Smithsonian, which I consider the best Smithsonian Museum, though I have not yet been to the newly opened African American Smithsonian, there is a famous exhibit of this flag from Fort McHenry. Francis Scott Key was so overcome with emotion at seeing the flag flying that he wrote a poem entitled, Defense of Fort McHenry, which was published a few days later by the American and commercial Daily Advertiser. Shortly after, Thomas Carr put the words to a tune of a song called, To a Necrion of Heaven and became more popularly known as the Star-Spangled Banner, which was made our national anthem in 1931. What we hear sung before sporting events and other such things, by the way, is only the first stands of the poem, which actually has four stands as total. Thus, both Francis Scott Key and Fort McHenry were made famous in U.S. history. But Fort McHenry also played a role in the outset of the Civil War, though this is less well known. During the second wave of secession, the decision of Maryland, Missouri and Kentucky were not certain. Would they stay in the Union or would they join the Confederacy? Baltimore, at the very least, had a large secession movement, and when Union troops were transported through their city, the secessionists resisted. The response to this resistance was to institute martial law in the city of Baltimore, the arresting of some of the first political prisoners of the war, including Francis Scott Key's grandson, Frank Key Howard, and the suspension of habeas corpus. Francis Scott Key's brother-in-law, Roger B. Taney, the chief justice of the Supreme Court, who was most infamous for his ruling in the Dred Scott case, became the most considerable opponent to Lincoln's decision to suspend habeas corpus, a power that Taney argued was clearly reserved for the Congress of the United States. The political prisoner, John Merriman, who was held in Fort McHenry for more than a month, eventually leading to the federal court case, X-Part Maryland, which has some interesting details that I'll cover once we get to it, but for now it's enough to say that this case challenged the authority of the executive to suspend the writ of habeas corpus. The second wave of secession was driven by what was seen as a usurpation of executive authority by President Lincoln. In Baltimore, the president seemed to further confirm his willingness to flagrantly defy the Constitution in the eyes of many people in the country, including many Northern Unionists, as we will see first in Baltimore, Maryland. I'm Chris Calton, and this is the Mises Institute podcast, Historical Controversies. In the last episode, we learned about the Pratt Street riot and Baltimore's effective secession from the Union. In today's episode, we will pick up where we left off to tell the story of the Union's response to Baltimore's decision, in which we will find examples of some of the more controversial decisions made by Lincoln and his generals throughout the war. We ended the last episode with Lincoln's April 27th Order 100, which instituted martial law in much of Maryland, allowing soldiers to arrest civilians as political prisoners and imprison them indefinitely without bringing any formal charges against them. When Massachusetts militia leader Benjamin Butler learned about the resistance given to the 6th Regiment in Baltimore, he decided to take his own action. Butler's an interesting case study in the Civil War because for all intents and purposes, he had been a Southern Democrat. He had supported Jefferson Davis for the presidential ticket for the Democrats, and when this failed, he supported the Southern candidate, John Breckenridge. He took the Southern pro-slavery side on every controversy in the 1850s, including backing the Lacompton Constitution in Kansas that sought admission as a slave state. Even though Butler was from the most anti-slavery state in the country, his politics were almost fully Southern. The one exception was the matter of disunion. No matter how much Butler aligned with the Southern Democrats politically, he was a staunch Unionist, and he had no compunction about using force to prevent secession. Shortly before the war, in a conversation with a Southern friend who invited him to join the anticipated Confederacy, Butler said, quote, no, sir, when we come from Massachusetts, we shall not leave a single traitor behind unless he is hanging on a tree, end quote. So when he heard about what happened to the militiamen he sent to D.C. with Colonel Jones, he decided to seize the ferry boat, the Maryland, which was supposed to have been destroyed by the Baltimore militia before they decided to let it be, and Butler led his own force of troops toward Baltimore. After commandeering the Maryland, Butler sailed into Annapolis, Maryland, where he was surprisingly greeted by Unionists who served as officers in the Naval Academy. At this point, it would have been easy for Butler to sell to Washington, D.C. to help defend the Capitol, but Butler was carrying a grudge against Baltimore and wanted to avenge the dishonor done to his state. Instead, Butler came up with an ambitious plan. The Naval Academy in Annapolis has a famous ship, the USS Constitution, nicknamed Old Ironsides, that they were using as a training ship. He hooked his commandeered ferry boat to the side of the ship and towed it through the mud and into Chesapeake Bay. Then he explained himself to everybody involved, saying that the USS Constitution had a strong connection to the state of Massachusetts. But it, quote, has lain for a long time at this port substantially at the mercy of the armed mob. It was given to Massachusetts in Essex County, first to man her. It was reserved for Massachusetts to have the honor to retain her for the service of the Union and the laws. This is a sufficient triumph of right and a sufficient triumph for us. By this, the blood of our friends shed by the Baltimore mob is in so far avenged. The Eighth Regiment may hear after cheer lustily on all proper occasions, but never without orders, end quote. Then Butler took the ferry back toward Annapolis. But Butler wasn't a sailor. So he got the ferry stuck in the mud outside Horn Point, where he and his regiment spent more than a day trying to get the ship free. While they were struggling to free their boat, the New York Seventh Regiment, led by Colonel Marshall Lefferts, sailed past them on their own steamer and landed back at Annapolis ahead of Butler. This annoyed Butler. Before departing for Annapolis, Lefferts had been in Massachusetts with Butler, and the two officers argued about the best way to reach the capital. Lefferts wanted to take a steamer around the Virginia Capes to get to Annapolis, and Butler wanted to commandeer the ferry in Perryville. Now Butler's plan did actually get his men to Annapolis first, but since he decided to liberate old iron sides, before getting stuck in the mud on the way back to the city, Lefferts would have the impression that he had the better plan, which rubbed the prideful Butler the wrong way. Then to add further insult, Lefferts led his New York regiment to help the men of the Eighth Massachusetts try to get the ferry unstuck, which allowed them to witness the dismal state of the Massachusetts soldiers after they'd been toiling the sun in mud for a full day. They were not able to get the ferry free from the mud, so the New Yorkers went to Annapolis and took the city. So now Butler, with his pride hurt, was even angrier. Meanwhile, Governor Hicks was doing what he could to send word to the officers, including Butler, to not land any troops in Maryland, though this obviously was ignored. Hicks then called for a special session of the legislature to convene in Annapolis that Friday a few days away. Benjamin Butler decided that this special session, which implied the possible secession of Maryland, was his personal responsibility. Butler told Hicks that if there was any person who brought up secession, he would have the person arrested, and if the legislature discussed seceding, he would have the assembly dispersed at gunpoint and possibly throw them all in jail as well. As a show of good faith unionism, Governor Hicks gave Butler his stamp for the seal of Maryland, promising that he would never allow the seal to be placed on any secession document. But Hicks was still worried about the special session, so he had the assembly moved to Frederick, Maryland, which was about 50 miles west of Baltimore. Butler was angry with the move, having no power now to intimidate the legislature. But Maryland's secessionists had torn up the railroad tracks that led to Washington, D.C., so after waiting two days for reinforcements, Butler started moving his troops along the destroyed tracks, with pickets marching ahead on either side. Behind them, other men repaired the track as they moved. They successfully reopened to the line on April 25th. The destruction of the railroad was also the basis for the first military arrests made in Maryland. After a young Maryland boy came to Butler's camp at Annapolis Junction, he said he knew who had torn up the railroad and named three locals named Robert Bruce, Benjamin Biggs, and Jeremiah Coon. The three men were immediately arrested, and their arrests brought many angry citizens to the soldiers' camp to protest. Eventually, the soldiers released their prisoners. But this was two days before Lincoln issued his infamous Order 100, which allowed soldiers to make such arrests, as well as suspending the writ of habeas corpus. When Lincoln issued the Order on the 27th, he put a great deal more power into the hands of Benjamin Butler. Lincoln's Order read, quote, executive order, to the commanding general of the Army of the United States. You are engaged in repressing an insurrection against the laws of the United States. If at any point, or in the vicinity of the military line used between the city of Philadelphia, via Perryville and Annapolis Junction, you find resistance. It is necessary to suspend habeas corpus for the public's safety. You personally, or through the officer in command at the point where the resistance occurs, are authorized to suspend the writ, end quote. Union troops began to pour into Maryland and within a week of the reopening of the railroad, nearly 20,000 troops had passed through Annapolis. With this new muscle, General Scott turned back to the matter of Baltimore. In early May, he ordered the 6th Regiment of Massachusetts, the same one that was delayed by the Pratt Street riot in the previous episode, back to the relay house, the train station nine miles south of Baltimore. They took the building on May 5th and set up camp. When word of this reached Baltimore, there was actually a rush of merchants to the camp to try to sell the soldier's beer and food before Benjamin Butler showed up and shut down the festivities. One soldier had made himself sick from alcohol and eating too much pie, and Butler claimed that this was evidence that the soldier had eaten food that had been poisoned with Strick Nine. In his report, Butler asked, quote, Are our few insane enemies among the loyal men of Maryland prepared to wage war upon us in this manner? Do they know the terrible lesson they are teaching us? Can it be that they realize the fact that we can put an agent with a word into every household armed with this terrible weapon? The weapon being Strick Nine. Benjamin Butler was thus concocting a story that was intended to both enrage Unionists in the North and threaten secessionists in the border states. But his story was a complete fabrication, and he knew it. If the food had been poisoned, there would have been more than one soldier sick, and he recovered pretty quickly. But the story did horrify many Northern readers who read about it in the newspapers, so the story was so outlandish that some papers called him out for his demagoguery. One paper nicknamed Butler the Poisoner General. But soldiers were now stationed outside Baltimore, and General Scott gave orders for a four-way attack on the city. One regiment would invade from Perryville in the east, another from Harrisburg in the north, another from Annapolis in the south, traveling by sea, and the fourth attack coming south from the Relay House by rail. But three weeks had passed since the Pratt Street riot, and the Mutim Baltimore had calmed down, and they were not as ready as they had been in late April, and it was starting to become clear that the state legislature was not going to pass an ordinance of secession. On May 9th, Baltimoreans even let 2,500 troops from Pennsylvania pass through the city without incident. But General Scott had delayed his plan until the troops at all four points were ready so as to show a tremendous show of strength. Butler, being so close to Baltimore and seeing the city become pacified, did not want to delay his attack to restore the honor of his Massachusetts militia. So defying Scott's orders, he loaded his men onto a train on the night of May 13th. Butler arrived at Baltimore at 7 PM, and instead of meeting violent resistance, he was actually met with cheers. A lot had apparently changed in the past three weeks. But this did not fully abate Butler's grudge against the city. He was leading men of the 6th Regiment, and there were certainly still citizens in the city who had fired on them and hurled stones at them. He ordered his men to start fortifying Federal Hill, which was just south of the city's harbor. He also started issuing his own proclamations. He said that he was going to enforce the quote, respect and obedience to laws, end quote. He said that he would allow no assemblies of the people, no drilling of the militia, no displays of the Confederate flag, and he ordered the seizure of all property that had been used in the rebellion on April 19th. Then he summoned Mayor Brown to come and personally receive these orders. The next day, he sent 35 of his men to the center of the city to take the city's supply of arms and ammunition. When they demanded the surrender of the weapons, the supply guards said they would need Marshall Kane's permission to do so. Kane said he couldn't give permission without getting his own permission from the police commissioners, and there he waited until a note arrived authorizing the seizure. The Massachusetts men then loaded up 35 wagons full of the city's weapons, including more than 2,000 muskets, many of which had been recently donated by Virginia in the hopes that Maryland would be joining them in the Confederacy. I don't know if Butler was happy with the vengeance he took on Baltimore. I wonder if he wasn't disappointed there wasn't more of a resistance. But the decision to defy General Scott elicited a harsh reprimand. But Butler wasn't punished, at least partly because he was one of the few supporters of John Breckenridge, who was so loyal to the Union. Instead, he was simply reassigned to Fort Monroe and promoted to Major General. Benjamin Butler will continue to play a significant role in our story of the Civil War when we get to the Peninsula Campaign and later New Orleans, but he was only in Baltimore for a single day. He was replaced by Pennsylvania's General George Cadwalader. But even though the hostilities in Baltimore had settled and Butler was removed, martial law was still in place in Maryland, and this meant the taking of political prisoners who were then held at Fort McHenry. The same fort made famous by Francis Scott Key. I'm just going to cover a few of the interesting arrests before detailing the more legally significant arrest of John Merriman. On May 14th, before Butler was removed from Baltimore, he had a local businessman and a very prominent and wealthy one named Ross Winans, who was a manufacturer and a multimillionaire adjusted for inflation, he would be worth almost half a billion dollars today. But he invented a steam gun, which he sold to the city of Baltimore, who then gave the steam gun to Virginia as a gift. The US government intercepted the gun when it was being delivered and saw that it had Winans' name on it, so he was arrested for treason against the United States and sent to Fort McHenry. Butler would later claim that he was removed from Baltimore because of how he treated Winans. He said that he intended to try Winans in front of a military commission made up of officers from the 6th Massachusetts, so his intention was literally to stack the court with people who had a grudge against Baltimore. Butler's intention was to have the man hanged to make an example of him. Butler said, quote, I thought that if such a man worth 15 million dollars were hanged for treason, it would convince the people of Maryland at least that the expedition we were on was no picnic excursion, end quote. So basically, Butler didn't really care if Winans was guilty. He thought that his public execution as a wealthy businessman would send a message to the rest of the people in Maryland, submit or die. But it was worth noting that Butler's treatment of Winans had no actual bearing on the decision to reassign him. Butler was removed because he defied the orders of General Scott, and as I already mentioned, his reassignment was accompanied with a promotion. In the short time that Butler was occupying the city, he also had Mayor Brown and Marshall Kane among other political leaders arrested and imprisoned in Fort McHenry. Now Kane was a secessionist, and Brown wasn't, but he didn't approve of Lincoln's war actions either. But both of these men, during the Pratt Street riot, actually did what they could to protect the soldiers being attacked by the Baltimore mob, if you remember from the previous episode. Another Baltimorean imprisoned at Fort McHenry was Francis Key Howard, one of Francis Scott Key's grandsons. This may be the most bitter piece of irony, considering that Francis Scott Key, in a fit of emotion, overseeing Fort Henry's survived the British bombardment, wrote the star-spangled banner only to have his grandson imprisoned there half a century later. But the most significant arrest was that of John Merriman, who was yanked out of bed at 2 a.m. by Union soldiers on May 25th and taken to Fort McHenry. No formal charges were levied against him. He was told that he was being accused of treason, but he was given no specifics about his crime, no evidence, and no witnesses. Merriman was another prominent citizen. And when the city learned of his arrest, people were upset. His lawyers showed up to the fort and they sought a writ of habeas corpus, which demands that the authorities must either formally press charges or release the prisoner in question. The district court in Baltimore, where they sought their writ, was in the circuit of the chief justice of the Supreme Court, Roger B. Taney, who also happened to be the brother-in-law of Francis Scott Key. The 84-year-old Taney issued the writ. On May 27th, General Cade Walleter, Benjamin Butler's replacement in Baltimore, denied the writ. He cited President Lincoln's executive order establishing martial law and said that he had the power to suspend habeas corpus on behalf of the president. Taney was livid. He responded by sending the U.S. Marshal to bring Cade Walleter to court to answer for his defiance of the law. On May 28th, the chief justice of the Supreme Court stood up in court and as he leaned on his grandson for support, he spoke in front of the crowd that packed the courthouse to rebuke President Lincoln for his violation of the Constitution. The opinion that he read is now known as Ex-Part Maryman. Now, Lincoln's justification for suspending habeas corpus was that the Constitution allowed for the suspension in the event of a rebellion. And many people argued over the constitutionality of this by arguing whether or not Southern secession actually qualified as a rebellion. But this was not Taney's primary argument. Taney pointed out that the power to suspend habeas corpus was delegated to Congress in Article 1 of the Constitution. Regardless of whether or not Maryland constituted a legitimate rebellion, President Lincoln did not have the power to suspend habeas corpus. It would have to have been an act of Congress. But Taney went on, even if Congress had been the body to suspend the writ, it still wouldn't be constitutional to hold a man indefinitely without trial because of the constitutionally guaranteed right to a speedy trial in criminal cases. By arbitrarily arresting John Merriman and holding him without trial, President Lincoln had subverted the Constitution. And even more, Taney said, was the matter in which the arrest was carried out. The suspension of habeas corpus was hardly the only violation of authority by the Union troops. The president had, quote, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws and substituted a military government in its place to be administered and executed by military officers. For at the time these proceedings were held against John Merriman, the district judge of Maryland, the commissioner appointed under the act of Congress, the district attorney, and the marshal, all reside in the city of Baltimore, a few miles only, from the home of the prisoner. And yet, under these circumstances, a military officer stationed in Pennsylvania without giving any information to the district attorney and without any application to the judicial authorities assumes to himself the judicial power in the district of Maryland, undertakes to decide what constitutes the crime of treason or rebellion, what evidence, if indeed he required any, is sufficient to support the accusation and justify the commitment and commits the party without having a hearing even before himself to close custody in a strongly garrisoned fort to be there held. It would seem during the pleasure of those who committed him. End quote. This was Taney's argument. Instead of faithfully executing the laws of the constitution as President Lincoln was oath bound to do, he took the legislative power from Congress and the judicial power from the courts. This, for what it's worth, is the basis for people accusing Lincoln of being a dictator. And that isn't just my commentary. Many pro-Lincoln scholars acknowledged that he was acting dictatorially but offering Machiavellian justifications for Lincoln's actions and some of them even referring to him as a kind or beneficent dictator. But I'm less interested in the moral judgments people have made about Lincoln. As I've stressed repeatedly, this is more important because this was the perception that people held, regardless of whether or not we think the perception was correct. Taney's arguments in X-part Maryman became the foundation for anti-Lincoln legal arguments throughout the war. It wasn't just Confederates who saw Lincoln as having usurped power. An increasing number of Northern Unionists would come to adopt this view during the war. It's also worth mentioning that because Taney issued this opinion, there was serious discussion of having him arrested. Lincoln actually wrote standing orders for the arrest of the Chief Justice of the Supreme Court. Though this was never actually carried out, but the fact that Lincoln actually did write out orders to have the Chief Justice of the Supreme Court arrested not exactly an insignificant act is almost never mentioned. I know of three works that talk about it. One by Jeffrey Rogers Hummel in his book, Emancipating Slaves and Slaving Free Men. And the other two being Frederick Calhoun's The Lawmen, United States Marshals and their deputies and Harold Hyman's A More Perfect Union, the impact of the Civil War and Reconstruction on the Constitution. It seems that because Taney was never actually arrested, historians have dismissed Lincoln's order for his arrest as insignificant, but I think it merits mentioning. Instead, William Seward would send orders to have 31 members of the Maryland legislature arrested, as well as Mayor Brown and one state congressman. In addition to the arresting of politicians, several anti-administration newspaper editors and publishers were also being arrested. But I'm going to come back to this in later episodes so we can see how this was done to help engineer the November elections so that a pro-administration legislature would be put in place. John Merriman was held in Fort McHenry until July 10th. On that day, Merriman was finally indicted for treason, charging him with participating in the burning of bridges, the cutting of telegraph lines and the destruction of railroads. He was released on a whopping $40,000 bail and was ordered to stand trial in November. But by the time his trial was supposed to be held, so many other people had been arrested that all the pending court cases and the need for witnesses became effectively impossible and the case was postponed and eventually dropped in 1862. Even though Maryland was pretty much safely in the union camp by mid-May, martial law continued and political arrests only increased. I'm not going to detail all of them here, but I suspect I'll come back to them because as I said, I think it'll be worth looking at the way the Lincoln administration engineered the state elections in November. But in the meantime, I will be ending today's episode here. In the next episode, we will begin looking at the war in Virginia, leading up to the first battle of Bull Run or Manassas. Historical controversies is a production of the Ludwig von Mises Institute. If you would like to support the show, please subscribe on iTunes, Google Play or Stitcher and leave a positive review. You can also support the show financially by donating at Mises.org slash Support HC. If you would like to explore the rest of our content, please visit Mises.org. That's M-I-S-E-S dot O-R-G.