https://www.abbevilleinstitute.org/b...s-in-maryland/

AbrahamLincoln is widely regarded as one of the nation’s greatest Presidents.
[1]
Heis the subject of at least 15,000 books.
[2]
Apopular poem (later set to music) responded to Lincoln’s call for troops in biblicalterms: “We are coming, Father Abraham, three hundred thousand more.…”
[3]
UponLincoln’s death, Bishop Horatio Potter wrote that “[a] glorious career ofservice and devotion is crowned with a martyr’s death.”
[4]
Lithographsin the aftermath of the assassination depicted the apotheosis of Lincoln. Inshort, Lincoln has been venerated among both scholars and the public.

Despite the mostly reverent treatment, little has been written about Lincoln’s treatment of civil liberties during the Civil War.
[5]
Even then, the few full-length scholarly works have generally excused Lincoln’s conduct or otherwise justified his actions as necessary to conduct the war. One historian admitted “[t]he skimpiness of the serious literature suggests that historians have been more or less embarrassed by Lincoln’s record on the Constitution.”
[6]
As a result, there is a gap in the scholarly work regarding President Lincoln’s role regarding civil liberties.

This paper seeks to fill that gap by examining Lincoln’sconduct as he tried to keep Maryland in the Union in 1861. Ultimately, AbrahamLincoln succeeded through a deliberate campaign to suppress civil liberties,including the illegal suspension of habeas corpus, arbitrary arrests of electedofficials, interference in Maryland’s elections, and the shuttering ofnewspapers sympathetic to the Confederacy. Whether Maryland would have secededmay never well be known, but Lincoln’s calculated conduct ensured that it wouldnot happen.

Maryland’s complex role in the Civil War grew out of several factors that developed during the sectional crisis of the 1850s. A border state that was home to nearly 90,000 slaves, Maryland became increasingly connected to the industrial North when the Northern Central Railway was completed in 1858 between Baltimore, Maryland, and Sunbury, Pennsylvania.
[7]
But most important was its geography, surrounding Washington, D.C. on three sides.
[8]
Writing about his father John Adams Dix’s responsibilities as commander of the Department of Maryland in 1861, Morgan Dix wrote that “the loss of Maryland would have been the loss of the national capital, and perhaps, if not probably, the loss of the Union cause.”

The 1860 presidential election was another measure of the complexity of Maryland’s situation. Maryland voted narrowly for the Southern Democratic candidate John C. Breckinridge over the Constitutional Union candidate John Bell by 45.93% to 45.14%. Stephen Douglas captured 6.45%, while Lincoln netted just 2.48%, or less than 2,300 votes statewide.
[10]
In the weeks after the election, the
Baltimore Sun
was convinced that if South Carolina and other states of the deep South seceded, Maryland would soon follow: “If disunion proves inevitable, the line will be drawn North of Maryland.”
[11]
Based on the 1860 voting patterns, historian Lawrence M. Denton concluded that “Maryland, if free to choose their own course, would have…stay[ed] with their section and join[ed] the states of the upper South in the Southern Confederacy.”

Baltimore was particularly hostile to Lincoln, and hometo an alleged plot to assassinate the President-elect as he passed through onhis way to Washington.
[13]
Whenprivate detective Allan Pinkerton convinced Lincoln to pass through Baltimore undercover of darkness, the
Sun
blastedLincoln, declaring that “[w]e do not believe the Presidency can ever bemore degraded by any of his successors than it has been by him….” thenight before the publicly-scheduled train.
[14]
Whetheror not the threats against Lincoln were fully-formed, the potential forviolence in Baltimore was genuine.

The critical tipping points that moved the nation fromsectional conflict to war came in April 1861. For strategic reasons related togeography, Maryland’s fate was closely tied with that of Virginia. On April 4,1861, Virginia voted against secession.
[15]
But two days later, Lincoln informed Governor Pickens of South Carolina thatFort Sumter would be re-provisioned with force, if necessary.
[16]
Then, on April 12, Confederate troops fired on Fort Sumter, and Major RobertAnderson surrendered the Fort the next morning.

On April 15, President Lincoln pressed forward andcalled for 75,000 volunteers.
[18]
Two days later, the Virginia Secessionist Convention voted in favor of areferendum of secession, which was subsequently ratified by its citizens on May23, 1861.
[19]
The reaction to Lincoln’scall for troops was exceptionally violent in Maryland, where Southernsympathizers attacked the 6th Massachusetts Regiment as they passed through thecity.
[20]
Maryland Governor Thomas Hicks, together with Baltimore Mayor George Brown andMarshall of Police of Baltimore George P. Kane, decided to destroy the railroadbridges around Baltimore to prevent Union troops from passing through the city.
[21]
Then, on April 22, Governor Hicks, who had previously resisted such efforts,called for a special session of the Maryland legislature to consider secession.
[22]
Lincoln considered arresting the members of the legislature but decided to“watch and await their actions.”
[23]
IfMaryland chose to arm its citizens against the United States, General BenjaminButler was authorized to “adopt the most prompt and efficient means tocounteract, even if necessary to the bombardment of their cities, and in theextremest necessity suspension of the writ of
habeas corpus
.”
[24]
Adelegation of the Maryland legislature that met with Lincoln reported that theywere “painfully confident that a war is to be waged to reduce all the secedingStates to allegiance to the United States Government, and that the wholemilitary power of the Federal Government will be exerted to accomplish thatpurpose.”
[25]
On April 27, Lincolnauthorized suspension of the writ between Philadelphia and Washington, D.C.
[26]
Thissingle event would set the stage for the most widespread violations of civilliberties throughout the war. The suspension of the writ, the militaryoccupation of Maryland, and the ever-present threat of military force becamethe primary tools for keeping Maryland in the Union.

The sole legal challenge to Lincoln’s suspension ofhabeas corpus in Maryland came in the case of John Merryman, a Maryland militialeader who had participated in the destruction of the bridges and rail lines aroundBaltimore at the behest of Governor Hicks. Merryman was arrested on May 25,1861, and imprisoned at Fort McHenry. Merryman filed a petition for a writ ofhabeas corpus with Chief Justice Roger Taney, who cited historical precedentand the placement of the Suspension Clause in Article I to rule that “theprivilege of the writ could not be suspended except by act of Congress.”
[27]
The administration promptly ignored the decision and refused to honor the writ.The inability of the judiciary to enforce its decision meant that Lincoln’ssuspension of the writ would go unchallenged and arbitrary arrests wouldcontinue.

The President sought to justify his decision tosuspend the writ in a special message to Congress on July 4.
[28]
Lincolnargued that the Constitution was silent as to whether the President or Congresspossessed the power to suspend the writ; and since Congress was not in session,the President could make such a decision lawfully. Moreover, even if the powerbelonged to Congress, he argued that his responsibility to “take care thatthe laws be faithfully executed” justified his actions: “are all thelaws but one go unexecuted, and the government itself go to pieces lest thatone be violated?”
[29]
Whetheror not Lincoln intended Congress to ratify his actions, Congress did not enactany such legislation until 1863.

Even while Lincoln was preparing his message toCongress, his suspension of the writ in Maryland was having an immediateimpact. Union troops flooded into Maryland and seized control of Annapolis andBaltimore.
[31]
Arrested and imprisonedat Fort McHenry were Baltimore Mayor George P. Brown, the entire city council, Marshalof Police George P. Kane, and all the police commissioners as well as U.S.Congressman Henry May.
[32]
InSeptember, military officials arrested at least 30 members of the legislaturewho were deemed to be sympathetic to the South.
[33]
CapturedWar Department correspondence indicated that the administration believed largemajorities of both the House of Delegates and State Senate were likely to votefor secession, and carried out a deliberate effort to deny their ability toassemble.
[34]
In April, Lincoln had decidedagainst arresting members of the Maryland legislature, acknowledging theirright to assemble and debate, but now the administration now determined that novote would be allowed.
[35]
The arrest and imprisonment of members of the state legislature not only deniedthem the opportunity to assemble but was designed to interfere with the fallelections. General Nathaniel P. Banks, who commanded military districts in botheastern and western Maryland during 1861, explained the administration’sstrategy: “The secession leaders–enemies of the people–were replaced andloyal men assigned to….their duties. This made Maryland a loyalState….”
[36]
Many of these electedofficials would remain imprisoned until November 1862.
[37]
Herethe combination of arbitrary arrest, military occupation, and the threat offorce represented a particularly acute chilling effect on civil liberties.

The extent to which the Lincoln administration went tosuppress press freedoms in Maryland was exemplified by the case of Frank KeyHoward. The grandson of Francis Scott Key, Howard was the editor of theBaltimore
Daily Exchange
, a newspapersympathetic to the South. Arrested as “a measure of militaryprecaution,” Howard was imprisoned and spent 14 months in Fort McHenry, FortLafayette, and Fort Warren.
[38]
WhenHoward’s account of a political prisoner was published in 1863, the publishersof his book were arrested.
[39]
Historian Sidney T. Matthews estimated that at least nine Baltimore newspapers,including Howard’s
Daily Exchange
,were suppressed during the war, including the arrest and imprisonment of theireditors or owners.
[40]
Matthewsconcluded that “the arbitrary arrest of disloyal editors the action takenby the Government, for the first year and a half of the War, had no basis inlaw.”
[41]
The suppression ofnewspapers like the
Daily Exchange
as“military precautions” represented a particularly odious violation offreedom of the press known as prior restraint.

A review of the notable full-length scholarlytreatments of Lincoln’s role in civil liberties during the war reveals a trendof generally excusing Lincoln’s conduct or otherwise justifying his actions asnecessary to conduct the war. James G. Randall’s
Constitutional Problems Under Lincoln
, first published in 1926, reflectedwhat one historian called Randall’s “curious ambivalence” towardLincoln’s conduct.
[42]
Randall was at times highly critical of the Union’s suppressive policies buttempered their treatment by his experience in the Wilson administration duringWorld War I. Randall himself wrote about his manuscript that “I may havegone too far in justifying the extreme war powers. My real convictions are…thatmany dangers lurk in the war power theory. Possibly my admiration for Lincoln hascarried me too far.”

Dean Sprague’s
Freedom Under Lincoln
, published in 1965, was also critical of Lincoln’s abuses of civil liberties. Sprague was particularly harsh on the administration’s policies in Maryland. But the author found Lincoln “scarcely touched by [the administration’s policy of suppression] personally,” “no intimate understanding of the workings of the executive branch, or of Washington politics,” and “reluctant to interfere in the day-to-day administration of the affairs of his cabinet officers.”
[44]
Instead, the villain was Secretary of State William E. Seward, who Sprague asserted had engineered the administration’s policy of repression. Sprague even called Lincoln a “humanitarian,” and charitably suggested that the President “would probably have sought…to prevent his successors from following this dangerous precedent.”
[45]
Sprague acknowledged that Lincoln was keenly aware of the suppression, and provided few examples of the President’s supposedly leniency.
[46]
But even if Seward was mostly responsible for carrying out the Union’s policies of suppression in 1861, one must wonder why Sprague did not hold the President at least equally accountable precisely because Lincoln alone suspended the writ of habeas corpus that allowed Seward’s suppression program to flourish. If Lincoln ever believed that Seward’s efforts went beyond the President’s limits, it is curious that the President so rarely intervened.

The most recent scholarly work on Lincoln’s treatmentof civil liberties is Mark E. Neely, Jr.’s
TheFate of Liberty: Abraham Lincoln and Civil Liberties
. Neely examined themilitary records of civilians who had been arrested and imprisoned during thewar after the President suspended habeas corpus. He concluded that more than14,000 civilians were subject to arbitrary arrest, “but they were of lesssignificance in the history of civil liberties than anyone ever imagined” becausea majority of the arrests were “refugees, informers, guides, Confederatedefectors, carriers of contraband goods, and other such persons as came betweenor in the wake of large armies. They may have been civilians, but theirpolitical views were irrelevant.”
[47]
Neely’s conclusion may very well be correct for many of the thousands ofcivilians arrested and imprisoned, but ultimately minimizes the brutalsuppression of civil liberties in Maryland where legislators were imprisonedsimply based upon how they might vote; where Union policies sought to interferewith the state’s elections; and where editors were imprisoned and newspaperssuppressed for what they might publish.

Other notable works about Lincoln are worth mentioninghere. In James M. McPherson’s
Tried byWar: Abraham Lincoln as Commander in Chief
, the eminent Civil War historianpresented a confusing and unsatisfying review of Lincoln’s role on civilliberties. For example, McPherson wrote “some of the Lincolnadministration’s actions, such as the arrest of Maryland legislators and otherofficials in September 1861, seemed excessive and unjustified by any reasonablemilitary necessity.”
[48]
He also recognized that Lincoln’s controversial actions provided precedents forlater wartime presidents.
[49]
Yet McPherson then pivoted to proclaim that “the infringement of civilliberties from 1861 to 1865 seems mild indeed” as compared to later wars.
[50]
Inthis way McPherson fell into the same circular reasoning trap as James G.Randall, recognizing the dangerous precedents Lincoln established but thenminimizing them compared to what they believed were greater threats in laterwars that built upon those very precedents. In
Abraham Lincoln and the Second American Revolution
, McPherson foundsupport for Lincoln’s violation of civil liberties in both Lincoln’s July 1861message to Congress and in the Emancipation Proclamation.
[51]
According to Lincoln, the survival of the nation was at stake.
[52]
Finally, McPherson concluded that Lincoln shifted America from a nation basedupon negative liberty to one based primarily on positive liberty, which theauthor regarded as an optimistic change.

McPherson’s belief that Lincoln’s conduct of the war changedthe nature of the nation raises some final points that remains both unansweredand highly relevant still today. It is worth considering if the preservation ofthe union and a second American revolution in favor of positive liberty wasworth the cost. More fundamentally, it is worth asking what is it that waspreserved in a nation so deeply changed by the conflict. Historian RichardGamble suggested that Lincoln “deployed a power civil religion, civilhistory, and civil philosophy to superimpose one reading of American historyonto any competitors.”
[54]
Thus, the nation has become a propositional nation rather than a nomocraticone.
[55]
Ultimately,Lincoln’s consequentialist approach to civil liberties ushered in a morepowerful executive branch that Pulitzer Prize-winning historian Arthur M.Schlesinger, Jr. called
The ImperialPresidency
.
[56]
Presidential historianClinton Rossiter called executive war powers a “constitutionaldictatorship,” and believed that Lincoln’s “noble actions” and“tremendous” reputation largely justified his precedent.
[57]
Rossiter recognized that ‘[t]he only check upon [a less democratic and lesspatriotic] man would be the normal constitutional and popular limitations ofthe American system.”
[58]
One must wonder whether Rossiter recognized the irony of relying upon“normal constitutional and popular limitations” to check whatvirtually every historian has recognized as extra-constitutional powers.

Maryland, a border state home to nearly 90,000 slaves,presented a complex challenge to the Lincoln administration because of its southernsympathies, its economic connections to the North, and its strategic geography.Lincoln quickly decided that the loss of Maryland would inevitably lead to theloss of the national capital and most probably the war itself. As a result, thePresident kept Maryland in the Union through a deliberate campaign to stiflecivil liberties that included the suspension of habeas corpus, the arbitraryarrest and imprisonment of elected officials, the manipulation of Maryland’selections, and the suppression of newspapers sympathetic to the Confederacy.Historians will continue to debate whether Maryland would have seceded withoutthe suppression of civil liberties, but Lincoln’s calculated strategy ensuredthat it would not happen.