A divided nation, fake news, election fraud, a President desiring to suppress the press and to use the military to arrest political opponents – this could be our future, but it has been our past, as it has all happened before in 1861 Maryland. If history is our teacher, what lessons should be gleaned from that tragic time?
Early in the U.S. Civil War President Lincoln seized significant extra-constitutional powers to support his war efforts. The intent of the Executive was to suppress dissent, political opposition and manipulate Maryland’s democracy to ensure the Legislature of Maryland and its governorship would be dominated by unconditional Unionist who support the policies of the Executive. To achieve this objective, it was considered necessary to seize extraconstitutional power and to set aside significant provisions of the Constitution that protected both civil liberties and our democracy itself. “Arbitrary” arrests, where the Executive department could have citizens imprisoned without the process or a basis under the law, became the mechanism to achieve the objectives. Arbitrary arrests and imprisonments were used to eliminate political opposition and dissent, to intimidate potential political candidates, to intimidate voters, manipulate elections, and to suppress and intimidate the press so such violations would not be reported to the rest of the nation and the world.
The targets of the arrests were labeled the “disloyal” but don’t be fooled into thinking they were only disloyal to our country or to the Constitution, the disloyal during Civil War Maryland meant disloyal to the President and his policies. The disloyal were subjected to arrests, confiscation of property, having their businesses closed and revocation of licenses they held that were issued by the government. It is estimated that 14,000 Americans were imprisoned by arbitrary arrests and over 300 newspapers suppressed during that war. How could a President so easily grasp such power unchecked? That is the lesson for our time.
The foundation of the Executive grasping such power rested upon four segments; the Executive seizing the power to suspend habeas corpus, the dissemination of misinformation, a military that blindly followed the Executive and a significant public support base that unconditionally supported the Executive but who were also manipulated by the dissemination of misinformation.
Habeas corpus is a citizen’s absolute right to challenge the legality of his detention by the government. It is founded in old English law and is considered an absolute tenant of basic civil liberty. With the Executive seizing the power to suspend meant the Executive got to decide how, where and for what the suspension would be used. The President asserted that since habeas corpus was to prevent the unlawful imprisonment of citizens then the fact that the Constitution allowed its suspension implied that citizens could be imprisoned for reasons other than reasons under the law, such as for political purposes, while it was suspended.
The President however needed a power to execute arbitrary arrest and the U.S. military provided that power. Early on we see the Judicial Branch of our government attempt to check the overreach of Executive power in the Ex-Parte Merryman case ruled by Supreme Court Chief Justice B. Roger Taney. We think of the Merryman case as an issue over who can suspend habeas corpus, but Justice Taney noted numerous constitutional violations committed by the President not the least of which was the placement of the military over civilian authority and giving the military the power to arrest and try civilians. The Executive department simply ignored Chief Justice Taney’s ruling which is lesson number one from this history.
The Judiciary branch of government has little actual power to check the power of the Executive since they have no enforcement division for their rulings against the Executive. The President must voluntarily comply, which Mr. Lincoln chose not to do. Nor did we find that Congress had much interest in checking the overreach of Presidential powers. Congress basically supported the President, but we do find that some Congressmen were also subjected to arbitrary arrests with Congressman Henry May from Maryland being the first.
Mr. Lincoln wrote “public opinion is everything, with it nothing can fail, against it nothing can secede.” Misinformation was a tenant for the grasping of power and the suspension of liberties. Misinformation created public support for actions that would normally be considered abhorrent if the truth were told. In dealing with Maryland, the Executive had to deal with a State Legislature that wanted Maryland to remain neutral and did not want to support the war effort. More importantly during the summer of 1861 the Maryland Legislature was protesting vigorously the violations of the Constitution against the State and against the civil liberties of its citizens. After the federal imprisonment of the Baltimore Police Commissioners, the Legislature drafted a lengthy and well documented protest of the Executive’s violations of the Constitution and voted to have 25,000 copies printed to be disseminated directly to the citizens of the nation.
The control of public opinion was considered critical to Mr. Lincoln to achieve his objectives. The day after the Legislature approved to send their protest to the American public, Mr. Lincon issued a proclamation that censored the press and a little more than a week later the War Department began issuing press releases asserting that they have uncovered detailed plans on how the Maryland Legislature was cooperating with the Confederate army on an attack against the U.S. Capital and were planning to secede Maryland. That misinformation campaign became the basis to arrest many members of the Maryland Legislature and to hold them imprisoned to isolate them from communicating with the public. The copies of the report the Legislature ordered to be disseminated were found and burned by the Union army.
Simultaneously with the arrest of Maryland’s Legislative members we see the arrest of U.S. Congressman Henry May of Maryland who would have created a vigorous protest in Congress, and we also see the first imprisonments of newspaper editors who would also have protested such violations to the world. One of the editors arrested was Frank Key Howard, the grandson of Francis Scott Key. Howard was imprisoned in Fort McHenry on the anniversary of his grandfather’s writing the Star-Spangled banner and the irony of his imprisonment was not lost to him. The imprisonment of the members of the Maryland Legislature who were not supporting the Executive’s war policies created vacancies to be filled in the upcoming State elections that were just weeks away.
The city of Baltimore held over one third of the voters of Maryland and the elections of that city became the main focus of the federal government’s conspiracy to manipulate the outcome of the Maryland State elections. The Baltimore Police Commissioners were responsible to run the elections and to ensure they were free and fair, however they had been imprisoned and replaced by a federally appointed Provost Marshal who, along with the military, would now run the elections of Baltimore. Gen. John Adams Dix and the Provost Marshal publicly proclaimed they were taking control of the elections only to ensure that they would be “free and fair” and to prevent treasonous rebels from returning to Maryland to vote.
This was just more misinformation to placate the public. The day after the elections the Baltimore Sun published how early on election day hundreds of democrats were arrested by the federals as they attempted to vote. Word of the arrests quickly spread throughout the city and the democrats stayed away from the polls in fear of imprisonment. The misinformation campaign used to support the arrest of the Maryland Legislature and to take control of the Maryland elections worked quite effectively in that the Northern public accepted the arrests and control of the elections as a reasonable and necessary action. This is lesson number two – the grasping of arbitrary power and the suppression of our democracy will always be surrounded by misinformation to maintain public support for such actions.
The free press is the watch dog of our liberties but during the Civil War we see a massive suppression of the press. With the early arrest of certain newspaper editors and the closing of specific papers, we see how most of the remaining papers simply fell into line. The Baltimore Sun reported the arrests of the Democrats on the morning of election day, but they dared not provide editorial comments criticizing the federal government or the Executive. The federal manipulation of Maryland elections in 1861 was done deceptively and covertly, however by the 1863 elections the press was for the most part completely muzzled in regard to reporting such matters. For those elections, Marylanders were given color coded ballots that revealed the political party for which they were voting and had to walk through a gauntlet of armed soldiers to get to the ballot box. Many were threatened and beaten and had their ballots torn from their hands. The press was silent on this massive voter suppression and this event was only recorded by an investigation conducted by the Maryland State Senate the report of which is currently available online at the Maryland Archives for those interested in the dirty details. Lesson number three – if the Executive suppresses or shuts down one or two news outlets, the others will fall in line and tone down their criticism of the Executive.
The grasping of power needed a force to conduct the arrests and support the Executive’s policies. During the U.S. Civil War, the U.S. military was the enforcement mechanism to suppress many constitutional provisions of our liberties and democracy. Would our military today be complicit in the Executive grasping extra-constitutional power and subverting constitutional provisions? Our military members are our nation’s patriots, but they are human fraught with human defects. There are always some who certainly would support the Executive unconditionally if placed into senior leadership positions. The Executive replacing senior military leadership along with the leadership of the FBI with staunch loyalist should be a warning. Lesson number four from Civil War Maryland – the Executive needs a force loyal to him to support the Executive’s overreaching of power and suppression of liberties.
Early in the War the North was supporting the Executive’s grasp of power and the setting aside of constitutional provisions in Maryland. The Northern press claimed “Inter arma silent leges” – in times of war the laws (Constitution) fall silent. Before their imprisonment the Maryland Legislature attempted to provide a warning to the Northern people who were supporting the President’s suspension of constitutional provisions in Maryland. The Legislature wrote “and let the people of no other section shut their eyes to the danger, because it seems to be impendent over us only, and not over them. Let them not sympathize with usurpation, because it blows for the present appear aimed only at sections and individuals, whose opinions differ from their own. They know not what a day may bring forth, and they cannot measure the harvest which may spring from a seed time of impunity and absorption and wrong.”
The Legislature warned of the slippery slope of usurpation by writing “There can be no trust and no safety, for any people, in arbitrary power. It is progressive, untiring, unresting. It never halts or looks backward.” We find that what began in Maryland quickly spread North until habeas corpus was suspended throughout the entire nation and every State had a military commander overseeing the civilian population. We see how the authority and oversite to conduct arbitrary arrests quickly degraded from being overseen by the Executive’s cabinet members and high-level military officers to being delegated to the lowest ranked military officer and local constables for almost any reason they saw fit.
When the policy of arbitrary arrests spread North, those citizens made an immediate and complete reversal concerning the sanctity of the Constitution. This culminated in New York’s governor, Horatio Seymour, attempting to have Gen. John Adams Dix indicted for conducting arbitrary arrest against New York citizens. The New Yorkers began to fight for their civil liberties and New York Judges made repeated attempts to issue writs of habeas corpus to the political prisoners kept in Fort Lafayette in New York harbor. By the time the Northern populace began to awaken however, the genie had been out of the bottle and their efforts were too little and too late and they too were subjected to the same abuses which they had earlier supported when it was only against Marylanders. This is history lesson number five – many citizens will support the Executive’s grasp of power and the usurpation of the Constitution when it is for an issue which they support. They naively believed that the usurpation of power will never be used against them personally. The warning of the Maryland Legislature should be headed. Arbitrary power never rests and as we saw during the Civil War, there can be a rapid and steep slippery slope regarding the suspension of constitutional provisions and civil liberties.
What I have written is the darker side of our nation’s history and joins other categories such as the uncomfortable side of the history pertaining to Native and African Americans that is not taught in our schools or even talked about. Unfortunately, not all of our history is about truth, justice and the American way but this truly is the history from which we can learn the most, particularly during these troubling times. For Maryland the misinformation disseminated that he State Legislature was intent on seceding Maryland has become our defacto State history. Other important events such as the federal attack ordered against the city of Baltimore in early May 1861 with the authorization to “bombard Maryland’s cities” if Maryland resisted is not found in any of our history books. This becomes history lesson number six – the victors write and significantly influence our history. We already see two distinct versions of the January 6th event. The upcoming elections will determine which version will dominate.
The lesson I have learned from researching Maryland Civil War history is also supported by my experience working within the Soviet Union shortly after its collapse and later working with the Cuban migrants who were fleeing the Castro regime. I have learned that our Constitution is the only thing that separates us from them. It is the protector of our liberties and our democracy. It is all too apparent that too many Americans take their liberties and democracy for granted, but in reality such freedoms are fragile.
Regardless of political or social differences our Constitution is what joins us together as Americans and we should hold it as the most sacred champion of our liberties and democracy. In times of confusion, crisis or distress there will always be those who will promise to deliver us from the turmoil, but they just need extra power. It can be tempting to turn a blind eye particularly if you support the objective, but do not be fooled and rest assured that it is very likely that you are being misled. If “honest Abe” can manipulate the public with misinformation, what politician would not? The Constitution is for us, not for the politicians, it is what keeps our politicians from becoming another Putin or Kim Jong Un, and rest assured any one of them would grab that power if given the chance. Do not take our liberties and democracy for granted and understand that if the genie is ever again let out of the bottle, it is likely that we will never again be able to put it back in.
Paul Callahan is a native of Talbot County, Maryland, a former Marine Corps Officer, and the author of the recently released book When Democracy Fell, The Subjugation of Maryland During the U.S. Civil War.
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